Racial harassment in the armed forces

For most of my career, I have acted exclusively for service personnel, veterans and reservists from a variety of backgrounds. Unfortunately, I would be hard pressed to find one client from an ethnic minority background who had not experienced discrimination on some level during their service. These cases can vary from those involving direct discrimination such as offensive language and assaults, to insidious examples of racism, such as career fouling and failures to promote. Many victims of such behaviour take no action, fearing repercussions to their careers and livelihoods. However, there has been a series of recent cases highlighting the issue. In September 2019, two former paratroopers brought successful discrimination claims. An employment tribunal found that one of their colleagues drew highly offensive images and remarks on their photos, including swastikas and Hitler moustaches. It also found that no reasonable steps had been taken to protect them from such harassment. In November 2019, Mark De Kretser (my client and a former reservist) brought a claim in harassment against his superiors and colleagues who allegedly belittled, bullied and ridiculed him because of his mixed ethic origins. The case settled on the final day of trial in the High Court. In December 2019, Randy Date (a veteran of the Kosovo, Iraq and Afghanistan wars) succeeded in his racial discrimination claim in the employment tribunal after his superiors confused him with the only other black soldier in his unit. After many years, I have to ask myself whether this sort of behaviour is to be expected in the military; and whether the right lessons are being learned.

LEGAL FRAMEWORK

Service personnel are servants of the Crown and not employees in law. Their legal rights are heavily curtailed, for example, they cannot bring a claim for unfair dismissal or breach of contract. Despite this, it is well established in common law that the Ministry of Defence (MOD) owes service personnel a duty of care as if it was their employer. Generally, where a service person has encountered harassment and or discrimination, they will have recourse to a number of causes of action: — A claim for discrimination in the employment tribunal, where they can prove they have been treated less favourably because of a protected characteristic, such as their race or religious belief. Time limits for most tribunal claims are normally three months. — A claim in negligence, where they can prove an act or failure to take reasonable steps has caused them injury and loss. The time limit for negligence claims is normally three years from the date of any injury. — A claim under section 1 of the Protection from Harassment Act 1997, where they can prove they have been subjected to a ‘course of conduct’ (normally consisting of at least two incidents of oppressive and unreasonable behaviour). The Act does not provide a definition for harassment. A claim can be brought within six years of the first incident.

A GRIEVANCE

A potential claimant may have to take advice at an early stage on which claims and or venue are most advantageous in their case. What will make the situation more challenging for them is the service complaints system which is the military’s equivalent of a civilian grievance process. Service personnel must raise a service complaint before they are permitted to raise a complaint for discrimination in the employment tribunal and, while they are entitled to bring a civil claim for damages without following this process, practically they will want the service complaint to run its course so that evidence can be gathered to buttress any claim. But this can introduce huge delays in achieving justice. The process involves filling out a form and submitting details of the complaint (within three months) to a superior who will then commence an investigation. There is also a right to appeal. The process has historically been riddled with delays and some complaints have taken years to conclude. The Service Complaints Ombudsman for the Armed Forces (SCOAF) has the responsibility for providing independent oversight of the service complaints system and reporting to government. The ombudsman, Nicola Williams, has powers equivalent to the High Court and can review service complaints decisions where, for example, there has been undue delay, maladministration or the substance of a decision is wrong. But importantly, her decisions are not legally binding on the MOD. I have had conduct of cases where a client has concluded a lengthy service complaint by successfully applying to the ombudsman, who finds in their favour – only to have the ombudsman’s recommendations completely ignored by the MOD in the civil claim. This is demoralising for a successful complainant who may have waited many months or years to reach this point, and entirely undermines the ombudsman’s position.

RACISM

The issue of racism has been known to the MOD for some considerable time. The ombudsman has undertaken extensive annual reviews which, among other things, have found that black, Asian and minority ethnic (BAME) personnel are overrepresented among complainants. The latest statistics recorded in 2018 show that while BAME personnel made up only 7 per cent of the armed forces that year, they made up 13 per cent of the admissible service complaints. In addition, 39 per cent of their complaints concerned bullying, harassment or discrimination. This is an improvement on previous years but the statistics remain a real concern. Also, we know that service personnel are reluctant to complain – 93 per cent of those subjected to bullying, discrimination or harassment did not raise a service complaint; and 57 per cent of those didn’t believe anything would be done to address their complaints. Without trust in the system, complainants will not come forward and those who engage in racist behaviour will not be discouraged. This is compounded because the ombudsman’s decisions are not binding on the MOD. Throughout her tenure, Williams has made around thirty recommendations for changes to the service complaints system. Few have been implemented and some even ignored. The MOD is not oblivious to these issues and it has, from time to time, implemented well-meaning but broad studies which have not resulted in any significant changes in policy or procedure. In its latest internal report by Air Marshal Wigston, published in July 2019, the MOD found that while the majority of service personnel behaved appropriately and with respect to one another, there remained an unacceptable level of inappropriate behaviour in some areas, including discrimination against women and ethnic minorities. The report made 36 recommendations to improve behaviour within the forces, including the establishment of a new ‘service authority’ which would be responsible for behavioural policy across the armed forces and house a specialised service complaints team to handle sensitive and complex cases of bullying and harassment. It is still not known what steps (if any) are being taken by the MOD in response to the report’s recommendations.

OPINION

Most lawyers acting for service personnel will tell you that racism in the armed forces is a significantly underestimated problem. It is perhaps less of a problem today than in the past, but it is a problem that remains unsolved. I have no doubt that the MOD wants to extinguish racism in its ranks. The values and standards of each service, whether in the British Army, Royal Navy or Royal Air Force, make clear there is no place for racism or discrimination in the services. But the MOD has a history of ignoring the recommendations of its own ombudsman, who continues to report that the service complaints system is “not efficient, effective or fair”. Action has to be taken and the MOD must start by listening to its own ombudsman. Service personnel are some of the most deserving members of our society. They deserve a complaints system that works – one which protects complainants and provides swift and transparent justice. Until then, they will have to look to the courts and tribunals for effective remedies.