“Dark horse” reference wasn’t race discrimination

Background facts

Ms Mangwanya (M), who is black, was employed by the National Association of Citizens Advice Bureaux on a one-year fixed term contract as a support assistant. Her employment commenced in September 2019.

On 11 June 2020 M emailed Ms Swales (S), her line manager, stating that she wanted to make S aware of some of the things that made her “really sad” .

Explanatory email

The email continued: “In April 2020, though I can’t remember the exact date, Jo came in wearing a black African wig and glasses as a joke. I asked her if she was intimidating me, but she did not answer. I dismissed it as a joke and this is why I did not really say anything” .

She went on: “Today Sophie mentioned that she knows Didier Drogba because he is from Ivory Coast and was a friend of her last boyfriend who was from Ivory Coast. Jo then said “Sophie I did not know that you were sort of the dark horse person”, meaning she had a black boyfriend”.

No formal grievance

M subsequently decided not to raise a formal grievance. She was then informed on 12 August 2020, by S, that her fixed-term contract would not be extended or renewed.

At this point, M raised a grievance which included allegations of discrimination and unfair dismissal. However, she refused to meet with the grievance investigation manager.

Tribunal claims

That manager found there was no discrimination and M’s employment was terminated. She then made claims of unfair dismissal and race discrimination at the tribunal, alleging that the term “dark horse” was offensive to her.

The tribunal dismissed M’s unfair dismissal claim because she did not have two years’ continuous service (click here for the tribunal’s ruling).

A compliment

In respect of the “dark horse” comment the tribunal judge has ruled that this is not a racist term because, according to the dictionary definition, it refers to someone or something having “hidden talents and achieving success unexpectedly” .

Therefore, as “dark horse” is not an offensive or derogatory term, there was no race discrimination . The judge also noted that M hadn’t raised a complaint at the relevant time; she only did so once her employment had been terminated.

Tip. This decision isn’t binding on other tribunals, so it’s possible that another tribunal could reach a different decision. However, when looking at discrimination complaints, the tribunal considers and applies the ordinary English meaning of a word or phrase. Unless it’s derogatory or offensive in some way that’s linked to a protected characteristic, the tribunal is unlikely to make a finding of discrimination. As “dark horse” is meant to be a compliment, a successful discrimination claim over its use is unlikely.