Good morning and welcome back to your weekly case law update. Last week we looked at a first tier Employment Tribunal case concerning disability discrimination and health and safety. This week, we are again looking at discrimination but on the grounds of race, not disability. As with last week’s case, this case is an Employment Tribunal judgment that is not binding precedent. However, it is an indicator of how the ET will treat contemporary issues

The question this week?

Can a case of mistaken identity amount to race discrimination?.

Mr Date, the Claimant, was a Grenada born Sergeant for the MoD, the Respondent. The Claimant was black Afro-Caribbean. The Claimant had been employed by the Respondent since 2003 and been an infantry soldier on several tours of duty.

The Claimant was subsequently transferred to a Military Correctional facility and worked on one of the wings as a guard. During this time the Claimant was diagnosed with PTSD and spent nearly a whole year off due to sickness.

Upon his return to work, the Claimant was reassigned to the training wing of the Respondent’s facility. During this time the Claimant had intermittent absence due to his condition and spent more time assisting and preparing lessons than teaching. There was a common perception amongst the Claimant’s colleagues that his absence was likely to result in a medical discharge and that the Claimant was not that interested in work.

The training wing had nine sergeants, the Claimant was one of two black sergeants. The remaining seven were white. The sergeants also had a WhatsApp group to discuss work matters in a less formal setting. In the WhatsApp group messages were made that suggested the Claimant was lazy. The Claimant believed this was due to his race. The WhatsApp group also contained rather course and colourful language about other protected characteristics including sex.

The Claimant’s line manager completed an appraisal for the Claimant that ranked him in the lower quartile of sergeants in his department. The report made several negative comments about the Claimant’s work ethic and performance. The report stated that the Claimant’s teaching had been observed as poor. However, the course referred to was not taught by the Claimant. Instead it was taught by the other black sergeant in the department.

The Claimant believed that he had been subjected to race discrimination and commenced an Employment Tribunal claim after internal procedures had been exhausted. The ET held, whilst the WhatsApp group contained language that was inappropriate and could be viewed as discriminatory, the comments about the Claimant were born out of his absence, not his race.

However, the appraisal was found to be discriminatory. The Respondent’s witness on this point gave poor witness evidence on the point trying to argue he had got the name of the class wrong and not confused the two black sergeants. The ET found that the witness had not observed the Claimant teaching and that the Respondent could not prove race was not the cause for the appraisal criticising the teaching. The claim for direct discrimination was upheld on this point.

The takeaway point:

Yes, in this case mistaken identity amounted to race discrimination. The Claimant in this case was confused with the only other black employee in the department and given a poor appraisal because of this.

Whilst the complaint relating to the WhatsApp group was dismissed in this case, it is another example of out of work social media spilling over to the workplace. The judgment was scathing about the language used in the group and had the Claimant brought a claim for one of the protected characteristics that was not race. Previous case law says if such language is far enough outside the realm of work then it will not amount to workplace harassment. However, a work WhatsApp is unlikely to be that far removed.