Evidencing race-related microaggressions in the workplace

At Farore Law, we have represented BAME senior executives who have been treated in a subtly different way by their managers and other colleagues because of their race. Such unfavourable treatment may include dismissive remarks, an allegation that the BAME individual is being “dramatic” or being subjected to racial profiling (e.g., suggesting that the BAME individual may know someone simply because they share the same cultural, ethnic or racial background). 

In 2023, the Employment Tribunal (“ET”) handed down judgments in race discrimination claims involving microaggressions. This post focuses on Miss A Smithson v British Telecommunications plc 2200543/2022 (“Smithson”) as it shows the kinds of behaviour that may amount to a microaggression, despite the claim not succeeding on the particular facts of the case.

Background 

In Smithson, the Claimant brought claims for direct discrimination, harassment and victimisation. The Claimant also brought a constructive dismissal claim, but that claim is beyond the scope of this post. 

Between 5 April 2021 and 14 January 2022 (following her resignation on 15 October 2021), the Claimant was employed by the Respondent as a Contract Assurance Specialist. Prior to the commencement of the Claimant’s employment, an audit had been conducted following which recommendations were made to the Contract Management team, which was headed by Mrs King. 

On 27 July 2021, the Claimant sent an email to Mrs King and requested that two corrective actions needed to be taken to satisfy the audit’s recommendations. Following email correspondence, Mrs King stated to the Claimant, on 13 September 2021, that they would need to come to an agreement as a team about how to undertake the corrective action. The ET found that the Claimant, who was fairly new to the business, prioritised urgent implementation of the recommendations, whereas Mrs King was more concerned about finding a “workable solution”. 

The Claimant alleged (amongst other things) that during a Teams call on 20 September 2021, and a mediation call on 21 September 2021, Mrs King:

• asserted in the presence of colleagues that the Claimant was not qualified to do her job;
• questioned in the presence of colleagues whether it was the Claimant’s job to be responsible for compliance; and
• refused (at the mediation call) to acknowledge that being disrespectful and belittling in the presence of other white colleagues, to the only black member of the team, could adversely affect the Claimant.

The Tribunal’s analysis and findings

The ET cited ACAS’s position on microaggressions, which reads as follows: 

“Race discrimination may not be obviously racist comments towards someone, microaggressions – small comments, questions or behaviours that are offensive or inappropriate, sometimes without the person who is doing it realising. This type of language or behaviour may not always be intended. But it can lead to someone feeling offended, unsafe of feeling like they do not belong. It can be very distressing.”

The ET implicitly accepted that Mrs King’s alleged conduct, if true, could be capable of constituting race discrimination. However, on the particular facts of this case, the ET found that Mrs King had not said that the Claimant was not qualified to do her job, nor had she behaved in a way that belittled the Claimant during the Teams call on 20 September 2021.

The ET went on to consider whether Mrs King’s statement, that the Claimant was not responsible for compliance, could constitute harassment under section 26 of the Equality Act 2010 (“EqA 2010”). Despite finding that this constituted “unwanted conduct”, the ET found that, in all the circumstances, Mrs King’s statement did not have the purpose or effect of violating the Claimant’s dignity or “creating an intimidating, hostile, degrading, humiliating or offensive environment” for her (s.26(1)(b) EqA 2010).

Takeaways

Smithson is a reminder that evidence often reigns supreme. Initially, the Claimant bears the burden to prove facts from which the ET could conclude, in the absence of an adequate explanation, that the Respondent has committed an act of discrimination (see Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332 as approved and adjusted by the Court of Appeal in Igen Ltd v Wong [2005] IRLR 258). 

In Smithson, the Claimant failed to persuade the ET of her version of events on crucial elements of her claim. This underscores that Claimants should provide strong evidence from which the ET is able to conclude that a microaggression has in fact occurred. In addition, Claimants should be ready to explain why the microaggression is because of and/or related to race, which may involve showing that the colleague would not have made such remarks, or done such acts, to a colleague who did not share the Claimant’s racial or ethnic background. Alternately, Claimants should be prepared to argue that the ET should draw adverse inferences from the Respondent’s evidence and/or pleaded case, which might suggest that the alleged microaggression is a form of race discrimination or harassment.

Please contact us if you require legal advice.