An employer retaliating against the maker of a race discrimination complaint will be guilty of victimisation unless the complaint is untrue and made in bad faith. But what if the complaint is made negligently? Is that bad faith?
A good example of a negligent race discrimination allegation appeared in last week’s London Evening Standard concerning Tottenham MP David Lammy. He accused the BBC of racism in a headline he found on Twitter concerning the Papal elections, “Will smoke be black or white?”. This makes Mr Lammy one of two things: either the only man in the Western World who does not understand the significance of that question when a new Pope is being chosen, or someone far too ready to ascribe discriminatory motives to the words and deeds of others.
The allegation was made in a tweet sent from the main Chamber in Parliament during a debate about something quite unrelated. We can skip lightly over the question of what this says of the level of attention he was paying to Parliamentary business, Mr Lammy himself admitting later that he had only one eye on what he was reading when he dashed off his accusatory message. Objectively, the fact remains that the allegation was baseless and no reasonable grounds to make it existed. Here he accused the BBC, which is big enough in every sense to do the decent thing and just ignore him, but what if Mr Lammy were your employee and had made such an allegation against your company?
An allegation of race discrimination is a serious thing, potentially career-ending if upheld. To have such an allegation made against you without good reason must leave you distressed and angry that someone else would think you capable of such a thing. Racism is after all not a momentary aberration but a serious character flaw and some hurt from the allegation (especially if made publically, as here) will survive any retraction. After all, if you were publically accused of theft by your employer in circumstances where the briefest thought would have shown that to be misconceived, would that not border on constructive dismissal? Would a later apology altogether remove that?
So an employer negligently accused of race discrimination by an employee could justifiably not be satisfied by the retraction of that allegation. Could it still take action against him? Is an allegation made without reasonable belief in its truth (surely there can be no reasonable belief where the maker himself agrees that he was not concentrating adequately on the point) be made in good faith for victimisation purposes?
On balance, probably yes, with the consequence that despite the pain of the allegation, the employer is obliged to accept a reasonable retraction and apology (reasonable in the sense of communicated to at least the same audience as heard the original accusation) as ending the matter. If negligence or insufficient care in the making of an allegation of discrimination put it outside the protections against victimisation then it would be too easy for employers to contend that further investigation by the employee would have shown the claim to be baseless and therefore that they are entitled to retaliate.
So neither negligence nor stupidity will amount to bad faith for victimisation purposes. A question for another time, perhaps, but what about recklessness, making a discrimination complaint without caring whether it is true or not?
