EAT RACE DISCRIMINATION – Comparison
An Employment Tribunal considered 28 matters said to amount to acts of race discrimination, arising in relation to the employment of the Claimant as a solicitor for the Defendant council. In respect of each it asked if it had caused a detriment, but did not enquire if it was an act of less favourable treatment than that given to those of a race different from that of the Claimant. It did not consider any of the comparators where they were named in respect of the allegations, nor explore the characteristics of an hypothetical comparator to assess if such a person would have been less favourably treated. There was one exception to this – central to the Claimant’s case was that she should have been appointed to a post as head of employment, rather than the woman who was. This was a comparison. However, there was no consideration whether the two were in materially the same circumstances: the successful candidate had applied for the post (the Claimant had not), and was an employment specialist, as she was not, and the Employment Tribunal did not consider whether these features vitiated the comparison. It thus wrongly concluded the burden of proof had shifted, in circumstances where it had merely asked whether the acts of the Respondent had caused detriment.
Secondly, the Employment Tribunal took a blanket, across-the-board approach when deciding that the burden of proof shifted in respect of all the allegations: this was in error, since it should have asked in respect of each whether the burden shifted, but did not.
Thirdly, the Employment Tribunal made material errors of fact.
Fourthly, it found that there had been victimisation by the acts of a Mr Thomson in causing the dismissal of the Claimant because she had done two protected acts. Since the only detriment alleged was dismissal, and the second act was the issuing of a claim form complaining of the dismissal, the finding could not be sustained on that ground: and in respect of the earlier protected act, there was no evidence (as there needed to be) that Mr Thompson knew of the act, as he would have to do if his actions were because the Claimant had done the protected act.
Finally, the parties agreed that the Employment Tribunal was in error in finding that the same act was both harassment and discrimination, since to do so was contrary to the provisions of section 212 of the Equality Act 2010.
Appeal allowed: case remitted to a fresh Tribunal for determination.
Langstaff P J
[2015] UKEAT 0045 – 15 – 0411
Bailii
England and Wales
Employment
Updated: 17 January 2022; Ref: scu.565088