Judgment issued in MOD race discrimination claim - 3PB’s Simon Tibbitts acted on behalf of the MOD

Two former paratroopers brought claims of victimisation, direct race discrimination and harassment against the MOD. 3PB’s employment barrister Simon Tibbitts represented the MOD throughout. The victimisation claims were all struck out at a preliminary hearing in April 2019 with the direct race discrimination and racial harassment claims proceeding to be heard over 10 days in Central London ET in July 2019. The trial (final hearing) attracted widespread media attention and the Judgment, which has recently been published, again attracted the attention of the media.

Links to some of the media articles:

Independent (2nd July)
BBC News (16th September)
Guardian (16th September)

The Judgment

The 2 claimants' claims of direct racial discrimination and harassment comprised of 13 different factual ‘incidents’ which were largely claimed as both direct discrimination and harassment. Simon and the MOD were successful in getting all claims dismissed save for one isolated incident of harassment which was factually accepted by the MOD from the outset. In respect of that allegation the MOD only advanced the statutory defence.

Despite the tribunal finding that the MOD did ‘a considerable number of important and very significant things’ and took matters ‘very seriously’ and that the Commanding Officer of 3 Para at the time ‘in particular appeared determined to root out any racism that may have been there and should be complimented for his efforts to do so', unfortunately the tribunal held that the statutory defence was not made out in respect of this incident.

Counsel for the claimants advanced 11 different ‘reasonable steps’ which he submitted should have been taken. Whilst the tribunal rejected 9 of those 11 submissions, 2 steps were made out and accordingly the statutory defence was held not to have been established in respect of this act of harassment.

This case, whilst not binding authority, demonstrates the significantly high threshold tribunal’s expect in order to make out the statutory defence. All employers who are considering running such a s.109 EqA defence should certainly think carefully given the varied and thorough measures the MOD took in this case (see Paras 70 - 81 and 343 to 348 of the Judgment).

Link to Judgment