Black soldier wins race discrimination case after being mistaken for colleague

A soldier has won a race discrimination case against the Ministry of Defence (MoD) after a formal appraisal wrongly stated he undertook a training course, a tribunal ruled. 

The East London Employment Tribunal (ET) found the MoD had discriminated against Mr Randy Date after officials mistook the only other BAME soldier in the group for Date during the appraisal process.

The tribunal ruled that the mistake had likely been made because Date’s reporting officer relied on what a colleague had relayed to him about Date’s instructing abilities instead of observing them himself, concluding that the MoD could not establish race had not played a part in the mistake.Several other claims of race discrimination failed.

Date, who is a black Afro-Carribean infantry soldier, joined the British Army in 2003 as a rifleman and served on several tours, including in Kosovo, Northern Ireland, Iraq and Afghanistan.

In February 2015, after requesting a transfer because of health reasons, Date moved to the Military Corrective Training Centre (MCTC) in Colchester to work as a military custodian. He had a formal diagnosis of post-traumatic stress disorder and, while at the MCTC had a period of sickness absence starting in February 2016. He joined a return to work programme in November 2016, and returned to work in February 2017.

In April 2017 Date was transferred to the training wing at MCTC, where out of nine sergeants, only two – Date and Sergeant Rashid – were black or ethnic minority. The tribunal heard Date’s colleagues at the training wing did not adopt a sensitive attitude to his sickness absence, and that Date believed they thought he was lazy and uncooperative because he was black and came from the Carribean.

As part of his appraisal process, Date was given a Soldier Joint Appraisal Report (SJAR) in early 2018 by his reporting officer, Flight Lt Taylor. The tribunal heard Date was unhappy with the initial report as it graded him poorly. The report took issue with his apparent participation in a course called Right Turn, and said Date’s supposed instruction was adequate but “at times seems badly prepared”.

Date told the tribunal he had never taken the Right Turn course – he took training for artillery and field craft – and it was Rashid, the only other ethic minority sergeant, who actually undertook Right Turn.

Date also disputed that there was any evidence for the assessment of his performance, and said that at no stage had he been informed of any shortcoming of his performance.

On 1 February 2018, Date presented a service complaint over the content of his SJAR, as well as discrimination and the content of a WhatsApp conversation in which his sickness absences were discussed.

In the complaint, Date said he believed he was subjected to criticism because of his status as a soldier on sick leave because of PTSD, and because of his race. He added he believed he had been “confused” with Rashid in his SJAR because of “my colour”. 

Date formally pursued his complaint on 27 February 2018, but a determination on 5 December concluded there was no racial bias or prejudice. On 20 December he was offered an apology in respect of the WhatsApp comments, and on 15 February 2019 Taylor held a meeting with Date in which he corrected the mistake relating to the Right Turn course and removed references to his “indifferent attitude”.

Date appealed against the outcome of the complaint, but this was dismissed by the Board Appeal Body on 12 July 2019. Date then brought tribunal claims of race discrimination against the MoD.

The ET ruled the MoD had discriminated against Date when the SJAR report wrongly stated he undertook the Right Turn course. It found the mistake was was likely to have been made because Taylor relied on what a colleague had relayed to him about Date’s instructing abilities instead of observing them himself.

It said the mistake about Date doing the course, the race of Rashid who did do the course, and finding Taylor did not directly observe Date’s teaching, was sufficient for the burden of proof to shift to the MoD, which was required to prove that Date’s race played no part “whatsoever in this erroneous conclusion”. 

The ET concluded that the MoD could not establish that race did not play a part in this mistake, so Date’s claims of discrimination succeeded.

However, his other claims of discrimination in relation to the WhatsApp conversation and other comments in the SJAR report were dismissed.

Rebecca Ireland, partner at Gunnercooke, said this case was a stark example of the importance of documentary evidence during HR processes. “The problem in this case was, if you do not document things properly, you are relying on people’s memory, and if another person is reliant on that defective memory for a report, you can see how you get into difficulties later down the line,” Ireland said.

“From a fairness perspective, you should always be transparent about the appraisal process and have feedback immediately after any assessment or review so any confusion or comments the appraisee has are dealt with in the moment.” 

Speaking to People Management, Date said that until this period he had enjoyed his career with the British Army, had “no problems” and had not faced discrimination before his transfer to the MCTC. 

He said that despite not all his claims being upheld, he was glad the claim over his appraisal succeeded, adding: “It means that I didn’t bring a case without merit.

“It was really unacceptable for a soldier to be treated that way while suffering with PTSD like I was.” 

An MoD spokesperson said it does not tolerate “any form of unacceptable behaviour”, and all allegations are investigated. They added: “As legal proceedings are currently ongoing, it would be inappropriate to comment further.”

A closed telephone preliminary hearing with the tribunal judge is scheduled for 12 December to discuss a remedy hearing.