C P Chapman and another v Irene E Simon

An Industrial Tribunal may determine only the acts of discrimination raised in the complaint, unless it permits an amendment. Under the Race Relations Act 1976, direct discrimination requires less favourable treatment compared with another person.

Where racial discrimination is inferred rather than directly proved, the Tribunal must identify primary facts capable of supporting the inference. An intuitive conclusion is insufficient. The Tribunal must also address a respondent's material explanation for the treatment before inferring that it was on racial grounds. A finding unsupported by pleaded allegations, comparative treatment, or primary facts cannot stand.

Ms Simon, a black teacher, brought a complaint of race discrimination against the headteacher, Ms Chapman, and the education authority. Her pleaded complaints concerned the processing of complaints, absence from school, and the provision of an open report to assist applications for other teaching posts.

The Industrial Tribunal rejected the pleaded complaint concerning the differing handling of complaints. However, by a majority, it found racial discrimination in an unpleaded act of alleged prejudgment and in the failure to provide a finalised open report. The Employment Appeal Tribunal set aside the first finding but declined to disturb the second.

The appellants appealed, seeking dismissal of the whole complaint. Ms Simon's respondent's notice sought restoration of the finding concerning prejudgment. The central issues were whether the Tribunal had exceeded its jurisdiction and whether its inferences of unconscious racial discrimination rested on sufficient primary facts.

1. Appeal allowed unanimously; respondent's cross-appeal dismissed. Balcombe LJ gave the leading judgment. Stuart-Smith LJ agreed with both judgments, and Peter Gibson LJ gave concurring reasons. The complaint of racial discrimination was dismissed.

2. The Tribunal had no jurisdiction to find that Ms Chapman had racially discriminated by prejudging Ms Hoyle's complaint. Under sections 54 and 56 of the Race Relations Act 1976, the Tribunal's function was confined to the acts of discrimination alleged in the originating application, unless that application was amended. The pleaded complaint about the different processing of the two teachers' complaints had been rejected. The distinct allegation of prejudgment was never pleaded.

3. That finding also lacked the necessary finding of less favourable treatment under section 1(1)(a). The Tribunal did not find that Ms Chapman had treated Ms Hoyle, or any other comparator, more favourably in relation to the alleged prejudgment.

4. Both the prejudgment finding and the open-report finding were legally unsustainable because the Tribunal had identified no primary facts capable of supporting an inference that Ms Chapman was unconsciously or subconsciously influenced by Ms Simon's colour. The finding that Ms Chapman's conscious attitude to race was impeccable, and the rejection of alleged racially abusive language, did not supply such a basis. The court applied the approach in King v The Great Britain-China Centre [1991] IRLR 513: an inference must follow from primary facts and a material explanation by the employer must be addressed.

5. As to the open report, the pleaded complaint did not allege that a person of another race had received more favourable treatment. Further, the Tribunal did not reject Ms Chapman's professional explanation for declining to provide the unqualified supportive report which Ms Simon sought. It was therefore not legitimate to infer racial discrimination.

• Court of Appeal (Civil Division): Allowed the appellants' appeal and dismissed Ms Simon's cross-appeal, thereby dismissing the complaint of racial discrimination.

• Employment Appeal Tribunal: On 24 September 1992, held that the Industrial Tribunal's unpleaded-prejudgment finding was erroneous in law, but did not disturb its finding concerning the open report.

• Industrial Tribunal (London North): On 20 April 1990, by a majority, upheld the complaint in relation to prejudgment and the open report, and adjourned remedy.