Have you ever made an incorrect assumption? Maybe you once assumed that the heavily tattooed man sitting next to you on the train was a heavy metal fan, until you heard Vivaldi leaking from his iPod? Perhaps you had all sorts of assumptions about who could do what blown to pieces by the Paralympics? We have all made assumptions about individuals which have turned out to be completely inaccurate. Making assumptions is a natural human tendency not least because, let’s be honest, we just do not have the time or indeed the energy to challenge or verify everything in life before reaching conclusions.
Royal Bank of Scotland recently received a salutary lesson from the EAT on just that issue where a senior manager made an unfounded and incorrect assumption that a black employee’s complaints against his white line manager were racially motivated. The EAT, upholding the Tribunal’s original decision, found that the manager’s erroneous assumption that the employee, Mr Morris, was “playing the race card” constituted an act of direct race discrimination. It took the view that the reverse assumption would not be made if a white employee complained about a black manager. Sadly the senior manager felt himself unable to admit to the assumption and so denied himself the obvious exit of a misunderstanding followed by profuse apologies.
So, a cautionary reminder: making assumptions may be a part of everyday life but employers need to be alive to the fact that any assumption (about any of the nine protected characteristics under the Equality Act 2010) made on the basis of a stereotype may be discriminatory. Of course employers need to be alive to the possibility that workplace tension may be related to a protected characteristic. However, this needs to be balanced against the danger of being overly alive to such a possibility and making incorrect assumptions about the causes of any disharmony.
It may sound like a novel concept but if the substance of a grievance is unclear, an employer should not be afraid to talk to the employee. It is not a simple equation of grievance plus protected characteristic equals a complaint about that protected characteristic. It may sound obvious but stereotyped assumptions can easily unconsciously rear their ugly heads, and cause considerable offence. If the basis or evidence for the complaint is unclear, just ask for clarification, but – “Why do you say he has it in for you?”, rather than “Are you saying it is because of your ethnic origin?”, which is effectively just voicing the assumption up front. Open questions get better answers.
Should this have gone all the way to the EAT? Probably not. The EAT commented that the formal grievance procedure in this case “may have got in the way of a more humane and straightforward resolution”, perhaps of the sort touched on above. Another important learning point for employers here: do not underestimate the power of apology. Adopting a more conciliatory approach from the outset may prevent parties becoming entrenched in their respective positions as formal grievance processes ensue. Everyone makes mistakes, but rarely does it help to defend the indefensible when you do.