The absence of any other explanation for the unfair dismissal of a black worker, does not of itself and inescapably lead to finding of race bias, or racial discrimination. He had been dismissed following complaints of sexual harassment, later found to be unsupported. The tribunal reasoned that the dismissal was to be presumed to be on a racially discriminatory basis in the absence of any other sufficient explanation. Had he been less favourably treated than others, and if so was that for a discriminatory reason.
Held: The conduct of a hypothetical reasonable employer is irrelevant. It is the action of this employer which is to be tested. The fact that an employer has acted unreasonably casts no light whatsoever on the question whether he has treated the employee ‘less favourably’ for the purposes of the Act of 1976 than he would have treated somebody else.
Lord Browne-Wilkinson Lord Slynn of Hadley Lord Lloyd of Berwick Lord Hope of Craighead Lord Clyde
Times 08-Dec-1997, Gazette 17-Dec-1997, Gazette 26-Feb-1998, [1997] UKHL 54, [1997] 1 WLR 1659, [1997] IRLR 229 CS, [1998] ICR 120, 1998 SC (HL) 27, [1998] 2 All ER 953, 1998 SLT 135
House of Lords, Bailii
Race Relations Act 1976 1(1), Employment Protection (Consolidation) Act 1978 57(3)
England and Wales
Citing:
Dicta not approved – Chattopadhyay v Headmaster of Holloway School EAT 1981
The appellant, an Indian teacher had applied unsuccessfully for the post of head of history at Holloway School. He complained of race discrimination.
Held: Browne-Wilkinson P said: ‘As has been pointed out many times, a person complaining that . .
Cited – Baker v Cornwall County Council 1990
The court asked when it could infer race discrimination: ‘In these circumstances, the Tribunal has no choice but to draw an inference adverse to the respondents and find that the applicant has been discriminated against by the respondents within the . .
Approved – King v Great Britain China Centre CA 1991
The court considered the nature of evidence which will be available to tribunals considering a race discrimination claim.
Held: A complainant must prove his or her case on the balance of probabilities, but it is unusual to find direct evidence . .
Appeal from – Glasgow City Council v Zafar SCS 1997
The house considered the burden of proof in cases involving allegations of discrimination.
Held: Lord Morison ‘The requirement necessary to establish less favourable treatment which is laid down by section 1(1) of the Act of 1976 is not one of . .
Dicta not approved – Khanna v Ministry of Defence EAT 1981
EAT Browne-Wilkinson P said: ‘If the primary facts indicate that there has been discrimination for some kind, the employer is called on to give an explanation and, failing clear and specific explanation being . .
Cited by:
Cited – Allen v Oliver Group Plc and Another CA 24-May-2001
The appellant appealed a finding against her by the ET and EAT on her claim of race discrimination. The tribunal found that the applicant had been treated less favourably, but had been unable to find any evidence that this had its origins in her . .
Cited – Scott v London Borough of Hillingdon CA 18-Dec-2001
The claimant’s claim for race discrimination had been dismissed on appeal by the EAT. He now appealed to restore the judgement of the employment tribunal. He had begun an action against his employer, and then unsuccessfully applied for employment . .
Cited – European Roma Rights Centre and others v Immigration Officer at Prague Airport and Another CA 20-May-2003
A scheme had been introduced to arrange pre-entry clearance for visitors to the United Kingdom by posting of immigration officers in the Czech Republic. The claimants argued that the system was discriminatory, because Roma visitors were now . .
Cited – MacDonald v Advocate General for Scotland (Scotland); Pearce v Governing Body of Mayfield School HL 19-Jun-2003
Three appeals raised issues about the way in which sex discrimination laws were to be applied for cases involving sexual orientation.
Held: The court should start by asking what gave rise to the act complained of. In this case it was the . .
Cited – The Law Society v Kamlesh Bahl EAT 7-Jul-2003
EAT Sex Discrimination – Direct
The complainant had been suspended from her position as Vice President of the Law Society. The Society and its officers appealed findings of sex and race discrimination . .
Cited – Marks and Spencer Plc v Martins 1998
The court considered how a claimant can establish a claim for race discrimination. Mummery LJ said: ‘The first part of the question is: ‘Was the applicant treated less favourably than they treated or would treat another person of a different racial . .
Cited – Madden v Preferred Technical Group CHA Limited, Guest CA 27-Aug-2004
The claimant had made a complaint of race discrimination. The complaint was dismissed. Some time later the company dismissed him, and he again lodged a complaint. The tribunal found him unfairly dismissed, but again not discriminated against.
Cited – Law Society v Bahl CA 30-Jul-2004
The claimant had succeeded before the employment tribunal in her claim of race discrimination by the respondent and senior officers. She now appealed the reversal of that judgment. The claimant asked the tribunal to draw inferences of discrimination . .
Cited – Madarassy v Nomura International Plc CA 26-Jan-2007
The claimant appealed against adverse findings on her claims of sex discrimination. The court considered questions arising from the provisions relating to the transfer of the burden of proof in a discrimination case.
Held: Questions of the . .
Cited – Divine-Bortey v London Borough of Brent CA 14-May-1998
The claimant had brought and lost an action relating to his dismissal by the defendant, who now appealed against an order that he was not estopped from bring a second claim on a different basis namely race discrimination, disapplying the rule in . .
Cited – London Borough of Tower Hamlets v Wooster EAT 10-Sep-2009
EAT AGE DISCRIMINATION
UNFAIR DISMISSAL – Polkey deduction
Council employee seconded to registered social landlord – Secondment comes to an end, so that he is formally redundant – Employee aged 49 and . .
Cited – Ugiabe v Tower Hamlets Primary Care Trust (Race Discrimination : Direct) EAT 9-May-2013
EAT RACE DISCRIMINATION – Direct
The Claimant’s appeal argued that the Employment Tribunal had failed to follow through the inferences that it had drawn as to the conduct of the Medical Director of the . .
Cited – Alexandra Healthcare NHS Trust and Another v Effa EAT 21-Apr-1998
The Trust appealed against a finding of race discrimination. He was a doctor working as a locum. He had been summarily dismissed in breach of the respondent’s own procedures and professional standards.
Held: The appeal succeeded. The tribunal . .
Cited – Alexandra Healthcare NHS Trust and Another v Effa EAT 21-Apr-1998
The Trust appealed against a finding of race discrimination. He was a doctor working as a locum. He had been summarily dismissed in breach of the respondent’s own procedures and professional standards.
Held: The appeal succeeded. The tribunal . .
Lists of cited by and citing cases may be incomplete.
Discrimination, Employment, Scotland
Leading Case
Updated: 11 November 2021; Ref: scu.135222
