EAT RACE DISCRIMINATION – Direct
SEXUAL ORIENTATION DISCRIMINATION/TRANSEXUALISM
VICTIMISATION
DISCRIMINATION
HARASSMENT
The ET held that the Appellant was liable in respect of unlawful discrimination by way of direct discrimination, harassment and victimisation on grounds of race and sexual orientation in respect of a large number of complaints raised by the Claimant in two claims that were heard together.
The Appellant appealed a number of findings on 17 grounds. The common threads of appeal were whether the ET erred in three respects: first, by failing to set out the primary facts with clarity so that the validity of the inference can be examined (in accordance with the judgment of the CA in Chapman v Simon [1994] IRLR 124); second by wrongly causing or permitting the burden of proof to transfer; and third, by failing to establish a prima facie case that treatment was on grounds of a prescribed characteristic, before permitting the burden of proof to transfer (in accordance with the judgment of the CA in Madarassy v Nomura International plc [2007] ICR 867). In addition there were limitation appeals. The EAT concluded that the ET considered all the evidence in relation to each and every allegation with considerable care. The criticism of the ET that it failed to set out the primary facts with clarity is without merit. Further, in respect of the complaints of direct discrimination the ET had the two-stage process set out in Igen v Wong [2005] ICR 931 well in mind. There was no obligation on the tribunal to refer to the two-stage process in relation to each and every complaint or indeed to adopt the two-stage process in relation to each and every complaint if the tribunal considered that it was not appropriate to do so, having regard to all the circumstances of the case.
The EAT dismissed the appeal in relation to both claims save in relation to one finding of direct discrimination. Further the EAT held that the ET had no jurisdiction to consider two complaints, which it had failed to address, on grounds of limitation.
Supperstone J
[2013] UKEAT 0232 – 12 – 1405
Bailii
England and Wales
Updated: 30 October 2021; Ref: scu.509325 br>