An ex-soldier who claimed compensation after he was dismissed as a ‘dumb black b***ard’ by an Army sergeant was not the victim of ‘very serious’ racism, Ministry of Defence (MoD) lawyers have argued in a test case which promises to provide guidance on the quantification of damages in race discrimination cases.
The African-born private soldier launched Employment Tribunal (ET) proceedings against the MoD after he was verbally abused by a senior NCO and, separately, by a civilian butcher, whilst serving in the Falkland Islands. He was told to ‘shut up, you dumb black b***ard’ during a discussion about a black footballer and was said to have been ‘very upset’ by the sergeant’s words.
About a month earlier, he had been the victim of similar abuse when he went to a store to pick up some chicken to cook soup for his colleagues and was given only two pieces of meat. When he asked for more, he was asked by the civilian butcher, who was working for the MoD as a contractor, “Why should I trust you? First of all, you are a private in the British Army and then you are black.”
The ET awarded the former soldier £3,500 in respect of the butcher’s comment and another £12,000 to reflect the sergeant’s words. Those awards were later slashed to zero and £6,000 respectively by the Employment Appeal Tribunal (EAT). Now, however, his legal team is challenging the latter decision in the Court of Appeal in a bid to reinstate his original awards.
In responding to the appeal, MoD lawyers argued that the sergeant’s ‘one-off act of discrimination was plainly not of the very serious nature which might lawfully have attracted’ an award of £12,000. The EAT had been correct to condemn that sum as ‘manifestly excessive’ and ‘wrong in principle’ and the MoD had also rightly been cleared of legal responsibility for the civilian chef’s words.
However, the ex-soldier’s legal team argued that such insulting words uttered by a superior in a military context were particularly serious and obviously distressing. He was so upset that he had considered leaving the Army immediately ‘and would have done so but for the small inconvenience of being stationed in the Falklands 8,000 miles from home’, it was submitted. Recognising the importance of the issues raised by the case, the Court reserved its decision until a later date.