Part II: People’s Stories: Applying the Law to Navigate Race Discrimination at Work

An employment tribunal found that two Black employees were discriminated against when they were overlooked for promotion in favour of white colleagues, after hiring managers relied on subjective views about who would ‘fit in’ rather than objectively assessing the candidates’ qualifications and suitability.

The claimants were employees of the London and Quadrant Housing Trust (L&Q) with mixed white-Black Caribbean ethnicity. They alleged race discrimination and victimisation after being denied promotion to one of the three open roles at L&Q.

The three roles were advertised internally first. Six candidates applied, including the claimants. Two candidates with white British ethnicity were appointed to two of the three roles. The third role was not filled internally.

The selection process was not based solely on an objective basis (such as the job description, application forms, or interview performance). Instead, the decision was influenced by subjective judgments of the first hiring manager (Hiring Manager 1). Hiring Manager 1 decided based on who they thought would ‘fit in’ and who they were ‘100% sure of’.

The scoring process was not conducted independently by the interviewers. The second hiring manager (Hiring Manager 2) deferred to Hiring Manager 1’s scores during a meeting, and later inserted scores into the claimants’ sheets, misleading them into believing that Hiring Manager 2 had given scores to them independently.

At the interview stage, the claimants had performed similarly to one of the successful candidates. One of the claimants scored only one point less than the successful candidate, and both claimants had more management experience than the successful candidate. Despite this, the claimants were not appointed, and the third role was left vacant.

Hiring Manager 1 described the claimants’ interviews as ‘really good’ and stated they were ‘not not appointable’, yet did not appoint them. Hiring Manager 1 took a risk with the successful candidate, who had less management experience and did not fully meet all the criteria for the role, but did not extend the same consideration to the claimants. The claimants raised internal grievances alleging race discrimination, which were investigated but dismissed
by L&Q.

The Employment Tribunal decided that both claimants were discriminated against by their employer when they were overlooked for promotion. The tribunal concluded that the claimants’ race had an unconscious influence on the hiring decision.

Subjective and irrelevant criteria: The Employment Tribunal criticised the employer for relying on subjective ‘fit’ and confidence rather than using objectively weighted criteria. Questions asked about family background were not related to the job and risked introducing subjective impressions, which is inconsistent with the EHRC Code of Practice. This supported the argument that the interview was not conducted using objective, job‑related criteria.

“I’ve had to work twice as hard to be seen as competent – and even then, promotions go to white colleagues.”

Anonymised Spark x Sistren survey response

Comparing the treatment of other candidates: The tribunal found that the claimants were treated less favourably than hypothetical white comparators who were in similar circumstances. As mentioned earlier in this toolkit, a comparator is an individual (actual or hypothetical) used as a benchmark to determine if another worker has suffered less favourable treatment, discrimination, or unequal pay due to a protected characteristic. The comparator must be in the same or similar employment (sharing the same employer, and similar skills, experience, or contract type) but lack the protected characteristic (e.g., sex, race) of the person alleging discrimination. If an applicant can show they were questioned differently from white candidates (e.g., white candidates were tested on competencies while the applicant faced intrusive personal questions), that may lead to an inference of less favourable treatment on the race grounds.

“I was excluded from strategic meetings despite being the most experienced person
the room.”

Anonymised Spark x Sistren survey response

Context matters: This case draws on the importance of the assessment of the entire recruitment context for a race discrimination matter, as racism and race discrimination can often be subversive. For example, assessing how the process was run, whether objective criteria were used, what was said and recorded, how similar candidates were treated, relevant past events, and who made the decision.

In this case, there was no explicit bias. However, the Employment Tribunal found that race discrimination had occurred by drawing inferences from a subjective, non-transparent recruitment process (where decision makers spoke of who would ‘fit in’ and of being ‘100% sure’), inconsistent scoring evidence, and a less‑experienced white comparator being preferred without a clear, objective reason.

This case provides a clear example of how discrimination can be proven by credible inferences when the paperwork and process do not provide a sufficient or clear picture of what actually occurred.

Recruitment process and outcome: Inconsistency in scoring, missing scoring or after-the-event rationalisation of interview scoring, or brevity/absence of interview notes could justify an inference that the reason for non‑selection was tainted by race, unless the employer proves otherwise. Especially where an equally or better-qualified candidate who is a person of colour is passed over while a white comparator is preferred without a clear, objective explanation.

Asking different candidates different questions according to the different protected characteristics they possess may be a relevant factor in determining whether there has been discrimination in the recruitment process.

This is an important case in race discrimination. It is helpful because it explains how tribunals should approach cases where discrimination is rarely overt or deliberate. In this case, the Court of Appeal emphasised that tribunals should look at the overall pattern of evidence when assessing race discrimination, and can draw inferences of discrimination where an employer’s explanations are inadequate, inconsistent or not credible – even if there is no direct evidence of racist or discriminatory intent.

The claimant, Dr Anya, was a Black person of Nigerian nationality permanently resident in the UK, who applied for a research post at the University of Oxford. The claimant qualified for the research post and was shortlisted. Eventually, a white candidate got the job.

The interview was conducted by a panel of three, including the claimant’s supervisor (who the claimant also brought his claim against, alongside a claim against the university). The claimant’s supervisor had already formed a view that Dr Anya was not suitable for the post and notified the two other panel members of this before Dr Anya’s interview. Dr Anya claimed that his supervisor had already decided against him and that the interviewer had been hostile and had sidelined the claimant in the past. The claimant also detailed criticisms that the recruitment and equal opportunities processes were not properly followed during his recruitment process.

The tribunal at first dismissed the claim.

The claimant then successfully challenged the tribunal’s decision in the Court of Appeal after his appeal was dismissed by the Employment Appeal Tribunal. The Court of Appeal found that the tribunal, when hearing the background facts provided by the claimant’s supervisor, should not have stopped there. The reason being that even if a person is being honest or truthful and presents their version of events credibly, they can still be mistaken if they are not fully aware of their own assumptions or biases.

Discrimination is often not overt. Background information (i.e. information on events prior to the recruitment process) should be properly examined by the courts to make appropriate findings and conclusions. The court held that an inference of racial bias could be drawn if nothing else could explain the reason for making the decision. The case was sent back to the Employment Tribunal for a new hearing.

Tribunals need to look for indicators from before and after the decision or the act that an employee complains of. Those indicators can show whether or not a decision that looks fair on the surface was affected by racial bias.

Race discrimination is not always obvious. It often looks like a normal management decision, for example, a recruitment decision, a promotion outcome, a performance rating, or a disciplinary warning. An employer will usually say that a decision or an act was based on legitimate and lawful reasons. When cases reach a tribunal, the tribunal often has to decide what the real reason was by looking at the wider picture, not just the final decision.

Other examples of less favourable treatment on possible grounds of race discrimination could include:

• No notification or notice of a promotion process: If the employer fails to notify an employee of a promotion process that may be relevant to their role, this can point to less favourable treatment on grounds of race unless the employer can prove otherwise.
• Practical tip: If the facts around the decision are messy, inconsistent, or show a pattern over time, those points matter. They should not be brushed aside just because the decision-maker presents well.
• Breaching a duty of trust and confidence: An employer may fail to perform (or ‘breach’) their duty of trust and confidence if, without a good reason, they act in a way that is likely to seriously damage the trust and confidence between them and the employee. Covert promotion process, denying a fair opportunity to compete or misattribution of work are potential examples of such conduct.

If your employer fails to uphold the terms of your employment (for example, by undermining trust and confidence) and it causes you to resign, then it may be considered as ‘constructive dismissal’. However, the breach must be serious, and you must resign because of that breach, not later or for another reason. Because this is hard to prove and resigning is usually irreversible, it’s important to think carefully, keep clear records of what happened, and document how you responded at the time. You should seek legal advice before resigning on grounds of a breach of contract.

History with the decision-maker:

• Prior hostility or lack of support
• Being sidelined, excluded, or undermined over time
• Patterns of criticism or ‘moving goalposts’

Differences in treatment:

• How you were treated compared with colleagues in similar circumstances
• Whether standards were applied more harshly to you than to others

Process and policy:

• Whether the employer followed its own recruitment, disciplinary, performance, grievance, and equality processes
• Any unexplained departures from policy, missing notes, or odd scoring outcomes

Consistency of the employer’s explanation:

• Whether the reasons given stay the same over time
• Whether the documents back up the explanation, or whether the explanation changes when challenged

All of the above should be considered together, not in isolation.

This case provides a useful example of how race discrimination claims can succeed even where there is no overt racist language or an intention to offend, but instead there is a series of microaggressions which culminate in harassment.

Mr Viveak Taneja (VT), the claimant, was employed as an Area Sales / Business Development Manager selling bathroom products. He was regarded as a strong performer during his first nine months. The company owner brought in his friend and trusted associate Mr Dana Davies (D) to (amongst other things) conduct two-day field assessments of sales staff.

D telephoned VT to arrange the in-person assessment. On that initial call D correctly pronounced VT’s first name. D and VT’s relationship was strained from the outset, with miscommunication and multiple appointment rescheduling. During the outbound car journey, D addressed VT as ‘Vikesh’ on two separate occasions. VT corrected D. It had no effect. D neither apologised nor sought any clarification.

D took a critical and directive approach towards VT’s work throughout the day.
In a later meeting, while reprimanding him, D again referred to VT as ‘Vikesh’, despite multiple earlier corrections. In the heat of the moment, VT called D an ‘idiot’ and a ‘racist’ and left the meeting. The tribunal accepted that Mr Taneja’s reaction was a result of the cumulative effect of being repeatedly misnamed after correction, particularly given the cultural importance to him of the correct use of his name.

D followed VT to the car park. D threatened VT to not drive away and said VT would be ‘finished’ if he did. VT left and immediately reported the matter. Senior management accepted D’s account (which did not refer to the details of repeated misnaming), carried out no meaningful investigation, and treated VT’s employment as ending that day.

The tribunal found that VT had been subjected to race-related harassment. The tribunal treated persistent misnaming of a non‑Anglicised name as conduct related to race. It recognised that, in context, repeated failure to use the correct name can reflect racial insensitivity and stereotyping, even absent overt racial language or intent. The tribunal ordered the payment of a financial sum (known as an ‘award’) for ‘injury to feelings’ considering the confrontation, car‑park threat, management’s acceptance of D’s account and the immediate adverse employment outcome (termination of VT’s employment).

• Power imbalance: D and VT were in a quasi-managerial/coaching relationship, with D having influence over how VT’s performance would be perceived by senior management.
• Repetition and setting: Misnaming occurred multiple times within a single assessment day and as part of criticism about work practices.
• Lack of contrition: The absence of an apology or effort to check pronunciation, despite corrections, was specifically noted and weighed against D. There was limited evidence of any meaningful apology or remedial steps once the issue was raised.
• Purpose or effect: The tribunal found the conduct had the effect of violating VT’s dignity and creating a humiliating and hostile environment. It was reasonable for VT to feel that way in light of the repetition and the cultural significance of names.
• Cumulative assessment: The repeated nature of the behaviour, the power imbalance, and the absence of meaningful remedial action converted what might otherwise be characterised as minor slights into harassment.

• D’s dyslexia: The employer argued that D was dyslexic and that any misnaming was unintentional. However, the tribunal held that this did not excuse the conduct, particularly given the repetition, the failure to check or apologise, and that D had pronounced VT’s name correctly in the initial call.

• Persistent misnaming or culturally disrespectful conduct can be classed as harassment (such as a lack of apology or threatening language) linked to race when it harms an individual’s dignity or creates a ‘hostile, degrading, humiliating, or offensive’ working environment (Equality Act s.26).
• Lack of malice (harmful intention) or an underlying condition does not excuse harassment if the effect is to harm or violate another’s dignity. Repeated ‘mistakes’ in pronouncing an ethnic name after being corrected can still be unlawful.

“On my first day, someone sprayed air freshener in my office. Later, my manager said a complaint had been made about my body odour.”

Anonymised Spark x Sistren survey response

“My manager kept calling me by the name of another Asian woman in the office.”

Anonymised Spark x Sistren survey response

In this case, the Employment Appeal Tribunal held that comments about an employee’s accent can amount to race-related harassment, even if they were not intended to be discriminatory, because conduct only needs to be ‘related to’ race and not motivated by it to be unlawful.

The claimant, Elaine Carozzi (EC), was employed by the University of Hertfordshire in a managerial position. EC’s position was subject to a six-month probation period, which had been extended twice. At the time of her resignation, it had not been completed.

EC was subject to comments on her ‘very strong’ Brazilian accent, including comments that it can be difficult to understand. EC started legal proceedings (‘issued a claim’) against her employer for race discrimination, harassment and victimisation. Initially, the tribunal dismissed all claims. EC appealed the tribunal’s decision.

On appeal to the Employment Appeal Tribunal (EAT), EC’s claims of harassment and victimisation were successful. The EAT observed that harassment provisions are designed to be pragmatic, balancing the interests of employees against those of their employer and colleagues who may be accused of harassment. That balance cannot be achieved by applying a limited meaning to the words ‘conduct related to a protected characteristic’. This case broadened the interpretation of harassment under the Equality Act and helped establish that comments on an individual’s accent can constitute harassment if the accent is part of their ethnic identity.

Repetition of the unwanted conduct, whether the conduct happens in a shared space, and what happens after the employee objects. Where colleagues mock an employee for raising concerns (‘can’t take a joke’), it can aggravate the hostile environment and support the point that the conduct is unwanted.

This case illustrates that comments about a person’s accent can be related to race, and criticism or mockery of an accent can amount to harassment depending on context and whether such conduct is unwanted.

Legal safeguards are not motive-based, and intent is not decisive, i.e. a conduct can still be ‘related to’ race even when the speaker is not consciously motivated by race and may not intend to offend/discriminate against a colleague.

In this case, the Employment Tribunal upheld claims of race discrimination, harassment and whistleblowing detriment, emphasising that discrimination can be established through patterns of behaviour, flawed internal processes and credible evidence of differential treatment, even where organisations deny wrongdoing.

AC, the claimant, was a Black nurse employed by NHS England as a Continuing Healthcare Manager (Band 8B). She was the deputy to her line manager, GP. AC also had a regional role supporting and advising on issues affecting racialised staff.

AC claimed that GP repeatedly excluded and undermined her. Examples included refusing to let AC attend or participate in an important team away day while she was recovering from surgery, arranging a ‘treat’ team event on the same day as the National Nursing BME conference (the result being AC could not attend), keeping AC out of the loop about the promotion of a junior white team member within AC’s team, holding an inappropriate conversation with a junior staff member about AC’s health and encouraging the junior to report concerns, and excluding AC from the early stages of recruiting roles that would sit in AC’s own team.

AC raised concerns and brought a grievance. AC state in her formal grievance letter that she was a senior Black nurse with an organisational role in supporting understanding of issues affecting racialised staff, and she expressly linked her treatment to the very issues she was expected to address publicly (including recruitment and experience of racialised staff). The grievance outcome and appeal outcome criticised aspects of management behaviour as ‘poor’ or ‘unsound’, but did not properly address discrimination or ask why the behaviour happened, and did not effectively follow through on corrective action.

The tribunal found AC’s evidence to be credible, and found GP’s evidence to be evasive and unreliable. It concluded that the treatment was because of race, amounted to harassment, and that AC was also victimised for doing protected acts (complaining about discrimination). The tribunal also upheld a whistleblowing detriment claim.

The tribunal found that AC’s race discrimination complaints succeeded, including victimisation, and that her whistleblowing detriment complaint
also succeeded.

• Pattern over time: repeated exclusion and undermining, not isolated one-off incidents.
• Timing: detriments occurred shortly after protected acts, supporting an inference of retaliation.
• No credible explanation: the employer did not provide convincing non-discriminatory reasons for what happened.
• Credibility: GP’s evidence was described as evasive and inconsistent with documents.
• Failure to address discrimination properly: grievance outcomes were criticised for setting a ‘deliberate discrimination’ bar and not examining subconscious bias or the cumulative picture.
• Minimising discrimination: the tribunal criticised a process that effectively required proof of deliberate intent.
• Failure to ask ‘why’ and to draw inferences: acknowledging ‘poor behaviour’ but not examining the cause.
• Failure to follow through: outcomes not effectively actioned, including failure to ensure findings were communicated and lessons learned.
• Overall context: the tribunal looked at the cumulative effect and the wider environment.
• Continuing act: the tribunal treated the conduct as extending over a period, including the grievance and appeal handling, meaning the earlier acts were not time-barred.

These included:

• being excluded from key events and processes,
• being undermined in the team,
• an inappropriate discussion about her health with junior staff,
• being excluded from recruitment for roles in her team, and
• grievance outcomes that failed to properly address discrimination and failed to take meaningful follow-up action.

If isolation, exclusion, undermining, and ‘performance’ narratives appear after raising racism concerns, then these fit the victimisation pattern. Courts can treat these as detriments, especially when they form a connected course of conduct.

“Last year I experienced exclusion, bullying and harassment (by white female colleagues) which I flagged to my line manager who advised I “need to be the bigger person and try to make the situation work.”

Anonymised Spark x Sistren survey response

The key takeaways from this case are:

• Protected act: If an employee raises concerns about racism, race discrimination and/or harmful race-related conduct in the workplace, in doing so, it is likely they will have done a protected act as defined under the Equality Act.
• Retaliation can be framed as ‘management action’ rather than overt hostility. The tribunal will look at whether the employer’s actions were detriments and whether they were done because of the protected act.
• ‘Detriment’ is broadly understood: A detriment is broad and can include exclusion, undermining, unjustified performance criticism, removal of work, blocking opportunities, hostile tone, and treating an employee as a problem for speaking up. Subjecting an employee to a detriment on grounds of race would amount to discrimination.
• Continuing course of conduct: If the behaviour is sustained, tribunals may treat it as a series of connected ‘detriments’. The case is a good example of a tribunal treating multiple events as a continuing course of conduct, including the way the grievance and appeal were handled.

Employers have statutory and common law duties to take reasonable steps to protect employees’ health, safety and welfare while at work (‘in the course of employment’). Where there is known unrest or a planned demonstration near the workplace, an employer should be alert to this and take appropriate steps to evaluate the relevant risks to an employee’s health, safety and welfare (for example, as part of the employer’s risk assessment).

Employers are not usually responsible for the ordinary risks associated with commuting. However, where an employer knows there is a specific risk connected to the workplace location (for example, demonstrations directly outside, expected disorder, or credible risk of racist abuse), the employer may be expected to take reasonable steps in response, particularly where an employee is likely to be targeted.

Employees are protected from detriment if they leave or refuse to return to a workplace where they reasonably believe there is ‘serious and imminent’ danger. Where there is danger outside (or very near) the workplace, this legal provision (ERA 1996, Section 44) could be relevant, because the danger could be argued to be connected to the workplace and its immediate vicinity.

If a manager dismisses safety concerns in the face of a known risk and provides no meaningful support or alternatives, that can become relevant in any later dispute about whether the racialised employee was treated reasonably.

Practical steps

Even if commuting risk is not usually the employer’s responsibility, there are reasonable steps employers can take when there is known unrest:

• Permission to leave early to avoid peak travel and flashpoints
• Temporary work from home, or relocation to another site
• Temporary adjustment of hours for a short period
• Paid taxi home
• A ‘buddy system’ or arranging accompaniment to the station
• Clear instructions that employees will not be penalised for prioritising safety
• Temporary reassignment of duties which may be required to be undertaken ‘on-site’

Risk Assessment and Communication

Alongside practical steps, employers should maintain an up-to-date risk assessments for the office location, including clearly communicating any contingency plans (closing early, remote working, avoiding certain entrances, security presence) and providing a named point of contact for real-time support on the affected day (HR, facilities, duty manager).

Wellbeing Support

Employers should also offer wellbeing support such as check-ins, signposting internal mental health support services, and agreeing to temporary work adjustments. It is important to let the employee know that there isn’t pressure to commute to work under unsafe circumstances.