Transport for London and Another v Aderemi: EAT 4 Nov 2011

Direct and Victimisation
Burden of Proof
The Employment Tribunal conflated the two concepts of firstly less favourable treatment and secondly whether there was a prima facie case that it was on the grounds of race. The phrase ‘from which it could conclude’ at paragraph 45 of the judgment is redolent of precisely the same error identified by the Court of Appeal at paragraph 31 of the judgment in Igen v Wong [2005] ICR 93 and there had to be a finding that Mr McGill had treated the Respondent less favourably before the second concept arose.
The conclusion that there was less favourable treatment of the Respondent by TFL rested to a considerable extent, on the finding at paragraph 57 of ‘institutional, unconscious, attitudinal racism, at least in relation to persons of black African ethnicity’ in TFL and was a finding based on a collection of single incidents of limited scope not justifying an inductive conclusion so broad in scope; the conclusion was unsound; Commissioners of Inland Revenue v Morgan [2002] IRLR 776 followed.
Victimisation also rested in part on the above finding and was equally unsound.
Remitted to a differently constituted Tribunal for a complete re-hearing.


Hand QC J


[2011] UKEAT 0006 – 11 – 0411




England and Wales


FollowedCommissioners of Inland Revenue and Cleave CB v Morgan EAT 6-Feb-2002
EAT Race Discrimination – Direct . .
CitedIgen Ltd v Wong CA 18-Feb-2005
Proving Discrimination – Two Stage Process
Each appeal raised procedural issues in discrimination cases, asking where, under the new regulations, the burden of proof had shifted.
Held: The new situation required a two stage process before a complaint could be upheld. First the claimant . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 26 September 2022; Ref: scu.448114