EAT Race Discrimination: Direct – VICTIMISATION DISCRIMINATION – Other forms of victimisation
Race Discrimination – direct discrimination – victimisation
The Claimants – all long-serving, black employees of the Respondent – complained of less favourable treatment as compared to a named (non-black) comparator/a hypothetical comparator in terms of their treatment as Temporarily Promoted Managers and had also complained of direct race discrimination and victimisation in respect of how the Respondent had responded to their grievance.
On the Claimants’ appeal against the ET’s rejection of their complaints:
Held: allowing the appeal in part
The Claimants complained that they had not been considered for/informed of vacant higher grade roles whereas their comparator had been slotted into such a role. The Respondent’s general explanation (accepted by the ET) – that there were no such vacancies at the Claimants’ workplace – was put into question by the treatment of the comparator. That said, it was apparent from the ET’s findings that the more favourable treatment of the comparator arose from a genuine mistake on the part of the Respondent (both in respect of the position of the comparator and also as to the position of the Claimants) and was in no way because of race. Although that left a question as to why this had not been rectified once the Respondent had learned of the error, the continuing position was not an issue before the ET and fell to be considered on the subsequent ET claims brought by the Claimants.
The Claimants had further complained that they had not been paid at the appropriate level for some ten years but that was again answered by the ET’s finding that their move to Temporary Promoted managers in 2004 had erroneously not been communicated to the Respondent’s payroll: the ET had gone to the ‘reason why’ question and had permissibly found that the answer was also unrelated to race.
As for the final complaint – of direct race discrimination and victimisation in respect of the handling of the Claimants’ grievance – the ET expressed a number of concerns in this respect but then failed to have regard to those matters when determining the issue of discrimination. There was a troubling confusion in the ET’s reasoning, which suggested an erroneous application of the burden of proof. Moreover, having found an absence of explanation provided by the Respondent, the ET erroneously considered that it was its role to provide the missing explanation. The errors in these respects also tainted the ET’s decision on victimisation. The appeal in respect of the grievance complaints (both of direct race discrimination and victimisation) would thus be allowed.
Eady QC HHJ
[2016] UKEAT 0197 – 15 – 2705
Bailii
England and Wales
Employment, Discrimination
Updated: 20 January 2022; Ref: scu.567280
