EAT Race Discrimination: Direct – UNFAIR DISMISSAL – Automatically unfair reasons
UNFAIR DISMISSAL – Reason for dismissal including substantial other reason
Direct race discrimination – sections 13 and 136 Equality Act 2010; automatic unfair dismissal – section 103A Employment Rights Act 1996; unfair dismissal – section 98 Employment Rights Act 1996
The Claimant – a black woman employed by the Respondent at a residential unit for disabled, vulnerable young people – had brought complaints of direct race discrimination, automatic unfair dismissal (whistle blowing) and ‘ordinary’ unfair dismissal. These concerned the disciplinary process pursued by the Respondent, resulting in the Claimant’s dismissal for what was said to be gross misconduct arising from failures to safeguard vulnerable children in the Claimant’s care. The Claimant’s white comparator had also faced disciplinary charges relating to failings in respect of vulnerable children at the unit. In his case, the incidents were alleged to give rise to concerns as to inappropriate behaviour and/or risk of sexual abuse but there was a delay in investigating these matters and the concerns ultimately pursued to a disciplinary hearing were characterised by the Respondent as misconduct rather than gross misconduct and the disciplinary penalty limited to a written warning rather than dismissal.
The ET considered the difference in treatment between the two cases to be inadequately explained and inferred that the Respondent’s actions were because of race and thus upheld the complaint of direct race discrimination, contrary to section 13 Equality Act. It also found the reason or principle reason for the Claimant’s dismissal was her whistle blowing (she had raised concerns about the incidents involving her comparator) and thus unfair under section 103A Employment Rights Act. Considering the Claimant’s section 98 unfair dismissal claim, however, the ET found the Respondent had made good its reason for her dismissal for the purposes of section 98(2) – conduct – and the dismissal was fair in all the circumstances.
On the Respondent’s appeal.
Held: allowing the appeal
The inconsistencies in the ET’s conclusions could not be reconciled and rendered the decision unsafe. It was not possible for the reason or principle reason for the Claimant’s dismissal to be both automatically unfair for section 103A purposes but still fair under section 98(2) of the Employment Rights Act. Although it was possible that race might play a part in an employer’s decision making, whilst not being the reason or principle reason for the dismissal, the ET’s reasoning on the race discrimination case was not adequate to the task. In the circumstances the appeal would be allowed and the ET’s decision set aside in its entirety. The matter would be remitted to be considered afresh by a differently constituted ET.
Eady QC HHJ
[2016] UKEAT 0322 – 15 – 0703
Bailii
England and Wales
Employment, Discrimination
Updated: 14 January 2022; Ref: scu.563300