Marks & Spencer Plc v Adell Martins

Under the Race Relations Act 1976, a complaint requires comparison with a person of another racial group in the same or materially similar circumstances, followed by determination whether any less favourable treatment was on racial grounds. A tribunal cannot establish less favourable treatment merely by finding conduct biased, unreasonable or unfair. Nor may it replace interviewers’ assessments with its own later impression of the applicant. Findings must be coherent enough to support an inference of racial grounds. For the employer’s statutory defence, the relevant employee act is the discriminatory interview, so the focus is on reasonable and practicable preventive steps taken beforehand; a later failure to investigate does not defeat the defence where it is not itself alleged to be discriminatory.

Adell Martins, an Afro-Caribbean applicant for a trainee manager position, complained under the Race Relations Act 1976 after Marks & Spencer rejected her following an interview. An Industrial Tribunal found racial discrimination, awarded £3,000 for injury to feelings and rejected the employer’s statutory defence. The Employment Appeal Tribunal majority allowed Marks & Spencer’s appeal on 14 May 1996, quashed the decision and dismissed the complaint. Ms Martins appealed to the Court of Appeal. The central issues were whether the tribunal had applied the required comparator and causation analysis, whether it had improperly substituted its own assessment for that of the interviewers, and whether section 32(3) applied by reference to preventive steps taken before the interview.

Per Lord Justice Mummery, giving the judgment of the Court, the appeal was dismissed and the Employment Appeal Tribunal’s decision was upheld.

1. Section 1(1) of the Race Relations Act 1976 poses one question, conveniently analysed into less favourable treatment and racial grounds. Less favourable treatment requires comparison with a person of a different racial group in the same or materially similar circumstances. Bias, unreasonableness or unfairness alone does not establish the statutory comparison. This followed the approach in Strathclyde Regional Council v Zafar.
2. An Industrial Tribunal must not usurp interviewers’ function by substituting its own criteria or assessment, particularly where its assessment is based on the applicant’s later performance as a witness or other material unavailable to the interviewers. A difference in treatment is relevant only if it amounts to less favourable treatment. The approach in London Underground Ltd v Nagarajan was applied.
3. Although direct evidence of racial discrimination is unnecessary and legitimate inferences may be drawn from primary facts and an inadequate explanation, the findings supporting the inference must be coherent. The tribunal’s contradictory findings about deliberate bias, the interviewers’ conduct and the alleged corporate attitude could not sustain a finding that treatment was on racial grounds.
4. Section 32(3) concerns the employee’s act alleged to constitute the less favourable treatment. Here that act was the interview and its conduct, not the employer’s subsequent refusal to offer employment or later handling of the complaint. The employer’s reasonable and practicable preventive steps had to be assessed by reference to what it did before the interview. On the facts found, the defence was established.
5. Although appellate tribunals ordinarily remit where the first-instance tribunal may have reached a wrong conclusion, substitution is permissible where the conclusion is plainly and unarguably wrong on the facts found and no further investigation is needed. The court applied that exception and dismissed the complaint. The appeal was dismissed with costs, and leave to appeal to the House of Lords was refused.

1. Court of Appeal (Civil Division): dismissed Ms Martins’s appeal, upheld the Employment Appeal Tribunal’s decision and ordered costs.
2. Employment Appeal Tribunal: on 14 May 1996, the majority allowed Marks & Spencer’s appeal, quashed the Industrial Tribunal’s decision and dismissed the complaint.
3. Industrial Tribunal: unanimously upheld the complaint of racial discrimination, awarded £3,000 for injury to feelings and adjourned the question of further compensation.