Brown v TNT Express Worldwide (UK) Ltd

Victimisation under section 2(1) of the Race Relations Act 1976 requires less favourable treatment and a causal connection between that treatment and a protected act. The comparator is identified by the relevant request or circumstance, without importing either the protected act or the employer’s reason for acting. It need not be another employee who has brought proceedings against the employer on different grounds.

The tribunal must identify the employer’s true reason, rather than decide whether its conduct was reasonable. It may infer a prohibited reason after rejecting the employer’s explanation. A dismissal substantively tainted by unlawful victimisation is not cured merely by an unsuccessful internal appeal or rehearing.

An employee brought racial discrimination proceedings against his employer. Shortly before the hearing, he requested half a day’s leave to consult an adviser. The employer refused the request, although comparable short leave was customarily allowed and the absence presented no operational difficulty. The employee took the leave, was dismissed by the manager responsible for refusing it, and failed in an internal appeal.

The Employment Tribunal found that the refusal and dismissal constituted victimisation under the Race Relations Act 1976 and that the dismissal was unfair. The Employment Appeal Tribunal dismissed the employer’s appeal. The employer appealed to the Court of Appeal, principally disputing the comparator, causation, the characterisation of the dismissal, and whether the internal appeal cured the defect.

1. Appeal dismissed unanimously. Peter Gibson LJ delivered the leading judgment. Mantell LJ and Sumner J agreed.

2. For section 2(1) of the Race Relations Act 1976, the comparator was to be identified by considering what the employee requested and how comparable requests would normally be treated. The employer’s reason for refusing the request did not define the comparator. Following Chief Constable of West Yorkshire Police v Khan, the comparator did not have to be an employee who had also brought proceedings against the employer, but on grounds outside the Act. The Tribunal’s unnecessary reference to a comparator seeking advice about unrelated litigation caused no material error because it correctly used an employee requesting leave and had found that such leave was ordinarily granted.

3. The decisive causation question was whether the less favourable treatment occurred because the employee had performed a protected act. The Tribunal correctly sought the true reason for the refusal rather than assessing the reasonableness of the employer’s conduct. It was entitled to reject the alleged operational explanation and infer that the true reason was the racial discrimination complaint, consistently with King v Great Britain-China Centre [1992] ICR 516.

4. The Tribunal’s concise reasoning on dismissal disclosed no error of law. The same manager refused leave and subsequently dismissed the employee for taking it. In context, the Tribunal found that the manager treated the employee less favourably at both stages for the same prohibited reason. The dismissal therefore constituted further victimisation and was unfair.

5. The unsuccessful internal appeal did not cure the discriminatory dismissal. An appeal may correct procedural unfairness if it provides a sufficiently comprehensive rehearing, as recognised in Whitbread v Mills [1988] ICR 776. The present defect was substantive illegality rather than a procedural omission. The material before the appellate courts also did not establish that the internal appeal addressed or removed the underlying discriminatory decision.

1. Court of Appeal: By judgment dated 4 April 2000, [2000] EWCA Civ 103, unanimously dismissed the employer’s appeal with costs.

2. Employment Appeal Tribunal: On 19 January 1999, Lindsay J dismissed the employer’s appeal from the Employment Tribunal.

3. Employment Tribunal: By a decision promulgated on 7 October 1997, upheld the employee’s complaints of victimisation and unfair dismissal. By a remedies decision promulgated on 22 December 1997, it awarded compensation of just under £20,000, subject to deductions for benefits received.