Kumar v DHL Services Ltd: EAT 8 Sep 2017

EAT RACE DISCRIMINATION – Direct
RACE DISCRIMINATION – Burden of proof
Direct race discrimination – burden of proof – section 136 Equality Act 2010 – whether the Employment Tribunal had wrongly imported the first stage test into its scrutiny of the Respondent’s explanation at the second stage – whether it had, in any event, subjected the Respondent’s explanation to the correct level of scrutiny – whether it had adequately explained its reasoning
The Claimant had applied for a position with the Respondent but had failed at the second interview stage. He did not consider the explanation for his non-appointment could be true as he contended it did not reflect what had been discussed at the interview. Pursing a claim of direct race discrimination before the ET, he argued that the ET should infer that he had not been appointed because of his race. The ET disagreed. With the agreement of the parties, it approached this question as if the first stage of the shifting burden of proof (section 136(2) Equality Act 2010) had been met and it therefore turned to the Respondent’s explanation. Doing so, the ET first made findings of fact as to what had been discussed at the second interview and found, contrary to the Claimant’s case, this had provided the basis for the decision not to appoint, as had been explained to him. Testing the Respondent’s evidence and explanation, the ET considered various points raised by the Claimant (including the racial diversity within the workplace; the lack of up-to-date equal opportunities training; the Respondent’s failure to answer pre-action questions) but did not consider it should draw any inference from these matters. It dismissed the Claimant’s claim. The Claimant appealed.

Held: dismissing the appeal
The ET had not lost sight of the test it was to apply and had not imported the first stage of section 136(2) into its determination whether the Respondent had met the burden upon it for the purposes of section 136(3). It had been required to make findings as to what had been discussed at the second interview as this was material to the explanation given to the Claimant and relied on by the Respondent before the ET. The ET further tested the Respondent’s explanation against the various matters relied on by the Claimant but did not consider it should draw any inferences from these factors and, in any event, was satisfied that the evidence of the relevant decision taker discharged the burden of proving that the decision not to appoint the Claimant was in no sense tainted by race. Carrying out this exercise, the ET had subjected the Respondent’s case to the appropriate level of scrutiny and had provided adequate explanation for its conclusions.
EAT RACE DISCRIMINATION – Direct
RACE DISCRIMINATION – Burden of proof
Direct race discrimination – burden of proof – section 136 Equality Act 2010 – whether the Employment Tribunal had wrongly imported the first stage test into its scrutiny of the Respondent’s explanation at the second stage – whether it had, in any event, subjected the Respondent’s explanation to the correct level of scrutiny – whether it had adequately explained its reasoning
The Claimant had applied for a position with the Respondent but had failed at the second interview stage. He did not consider the explanation for his non-appointment could be true as he contended it did not reflect what had been discussed at the interview. Pursing a claim of direct race discrimination before the ET, he argued that the ET should infer that he had not been appointed because of his race. The ET disagreed. With the agreement of the parties, it approached this question as if the first stage of the shifting burden of proof (section 136(2) Equality Act 2010) had been met and it therefore turned to the Respondent’s explanation. Doing so, the ET first made findings of fact as to what had been discussed at the second interview and found, contrary to the Claimant’s case, this had provided the basis for the decision not to appoint, as had been explained to him. Testing the Respondent’s evidence and explanation, the ET considered various points raised by the Claimant (including the racial diversity within the workplace; the lack of up-to-date equal opportunities training; the Respondent’s failure to answer pre-action questions) but did not consider it should draw any inference from these matters. It dismissed the Claimant’s claim. The Claimant appealed.

Held: dismissing the appeal
The ET had not lost sight of the test it was to apply and had not imported the first stage of section 136(2) into its determination whether the Respondent had met the burden upon it for the purposes of section 136(3). It had been required to make findings as to what had been discussed at the second interview as this was material to the explanation given to the Claimant and relied on by the Respondent before the ET. The ET further tested the Respondent’s explanation against the various matters relied on by the Claimant but did not consider it should draw any inferences from these factors and, in any event, was satisfied that the evidence of the relevant decision taker discharged the burden of proving that the decision not to appoint the Claimant was in no sense tainted by race. Carrying out this exercise, the ET had subjected the Respondent’s case to the appropriate level of scrutiny and had provided adequate explanation for its conclusions.

Citations:

[2017] UKEAT 0117 – 17 – 0809

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 02 April 2022; Ref: scu.601896