Warwick Park School & Anor v Hazleherst

An employment tribunal must explain why the primary facts justify an inference of racial discrimination. The parties must be able to understand why they won or lost. Where the facts and the employer’s explanations are equivocal, fuller reasoning is required.

Procedural defects, reliance on personal knowledge and the absence of minority candidates from a shortlist may support an inquiry into discrimination. They do not, without a reasoned connection to race, establish racial motivation. A finding that discrimination was neither deliberate nor conscious does not preclude liability, but it may increase the need to explain the inference drawn.

Three Afro-Caribbean teachers applied for newly created senior management posts at a school. None was shortlisted, while the shortlisted candidates were white. The Employment Tribunal unanimously found that the governors had discriminated on racial grounds, contrary to Race Relations Act 1976, despite finding that the panel had not intentionally discriminated.

The Employment Appeal Tribunal held that the tribunal had not adequately explained why the facts justified the decisive inference of racial discrimination. It allowed the governors’ appeal and remitted the claims for rehearing by a differently constituted tribunal.

The teachers appealed. The central issue was whether the Employment Tribunal had given adequate reasons for inferring unintentional racial discrimination from the selection process and the primary facts found.

1. Appeal dismissed unanimously. Pill LJ delivered the leading judgment. Tuckey LJ agreed and added brief reasons. Jonathan Parker LJ agreed with both judgments. The Employment Appeal Tribunal had correctly identified an error of law and correctly remitted the claims for rehearing.

2. An employment tribunal’s reasons must tell the parties why they have won or lost and permit the appellate courts to determine whether a question of law arises. The Employment Tribunal had provided detailed findings, but it had not explained the reasoning which connected those findings to its inference that the appellants’ race caused their non-selection. The requirements stated in Meek v City of Birmingham [1985] IRLR 250 were therefore not satisfied.

3. The appropriate approach was that described in King v Great Britain-China Centre [1992] ICR 516. Racial discrimination will rarely be admitted, and the result will commonly depend on permissible inferences from primary facts. A difference in race may call for an employer’s explanation. The tribunal may infer racial discrimination where no explanation is given or where the explanation is inadequate or unsatisfactory.

4. The degree of explanation required depends on the evidential circumstances. The less clearly the primary facts point towards discrimination, and the more equivocal the explanations are, the greater the need to explain why the inference has nevertheless been drawn. A finding that there was no deliberate or conscious discrimination does not answer the claim. In such circumstances, however, the reasoning supporting an inference of unintentional discrimination may require fuller expression.

5. The selection process had significant defects. All candidates could have been interviewed; the panel lacked experience and appropriate assistance; irrelevant matters were considered; and personal knowledge sometimes advantaged white candidates. Those matters did not, without more, demonstrate a racial basis for the decisions. There was no finding that the panel would have treated equivalent personal knowledge differently according to a candidate’s race. Nor were the numbers sufficient to support a statistical inference.

6. Viewed as a whole, the findings contained no decisive pointer towards a racially discriminatory attitude. Explanations had been offered for the panel’s markings, although at least one point remained inadequately explained. The absence of a reasoned bridge from the facts to the inference created a real danger that the inference had been drawn incorrectly. The order was appeal dismissed with costs, subject to detailed assessment.

1. Court of Appeal (Civil Division): The teachers’ appeal was dismissed unanimously. The Employment Appeal Tribunal’s order allowing the governors’ appeal and remitting the claims for a fresh hearing was upheld.

2. Employment Appeal Tribunal: Lindsay J presiding, the tribunal allowed the governors’ appeal on 19 February 2001. It held that the Employment Tribunal had not adequately explained its crucial inference of racial discrimination and remitted the claims to a differently constituted tribunal.

3. Employment Tribunal for London South: In a decision sent to the parties on 4 March 1999, the tribunal unanimously held that the governors had discriminated against the three teachers on racial grounds in the shortlisting process, contrary to Section 1(1)(a) of the Race Relations Act 1976.