Race Discrimination : Direct – HARRASSMENT – UNLAWFUL DEDUCTION FROM WAGES – UNFAIR DISMISSAL – Constructive dismissal
The ET had found that the Respondent directly discriminated against the Claimant (a registered Nurse and Midwife) because of race in its referral of her to the Local Supervising Authority (‘LSA’). It further found that the Respondent directly discriminated against her because of race and unlawfully harassed her after she had given notice of resignation (by way of retirement) in (i) demoting her and (ii) pursuing disciplinary and sickness review procedures against her. The ET also found the Claimant’s demotion was without any contractual basis and thus the subsequent reduction in her pay amounted to an unauthorised deduction of wages. That said, the ET did not find that the Claimant had resigned due to any breach of contract by the Respondent (the demotion had taken place after her resignation) but for other reasons.
On the Respondent’s appeal and the Claimant’s cross-appeal.
Held: Allowing the appeal in part and dismissing the cross-appeal.
In reaching its conclusion that the referral of the Claimant to the LSA had been an act of direct race discrimination, the ET had drawn a direct (‘statutory’) comparison with a previous employee of the Respondent. Allowing that comparison was identified in the list of issues (although not particularly clear) and that there had been a relevant difference in treatment between the two cases (again, unclear), the ET failed to demonstrate regard to potentially material differences between the two cases; an omission that might have been apparent if the ET had engaged with the Respondent’s explanation for referring the Claimant to the LSA but it did not. That rendered the finding of direct race discrimination in respect of the LSA referral unsafe and the ET’s conclusion in this regard could not stand.
As for the findings on the post-resignation complaints, the ET had again relied on the same comparison – this time, treating the former employee as an evidential comparator – without engaging with the material differences between the two cases. Whilst the individual cases did not have to be identical, the hypothetical comparator thereby constructed had to involve a like with like comparison; the ET’s failure to engage with this point again rendered its decision unsafe, both on direct race discrimination and harassment.
The ET had, however, reached a permissible conclusion on the unauthorised deduction claim; the Respondent had not identified a relevant contractual basis for the demotion.
On the cross-appeal, the Claimant had challenged the ET’s findings on breach of contract but that still left its conclusion that she had not left in response to any breach of contract. That being so, the cross-appeal could not succeed and would be dismissed.
Eady QC HHJ
[2016] UKEAT 0139 – 15 – 1702
Bailii
England and Wales
Employment, Discrimination
Updated: 14 January 2022; Ref: scu.563297
