Stenning v Jarman & Anor

In a race-discrimination claim, rejection of an actual comparator does not end the inquiry. The tribunal must consider the appropriate notional comparator and all material evidence bearing on whether the claimant received less favourable treatment. This includes examining why comparable white employees received better treatment. Where the tribunal identifies unfair or unreasonable treatment and material circumstances capable of supporting an inference of racial discrimination, it must evaluate the alleged explanation and decide what inference should be drawn if that explanation is inadequate or unsatisfactory. Unfair treatment is not automatically discriminatory treatment, but the distinction does not justify failing to assess relevant comparator evidence and the employer’s explanation.

Letitia Stenning, a black employee of African origin, complained under the Race Relations Act 1976 about an unfavourable employment reference given by Nicholas Jarman, Temporary Acting Director of Education for the London Borough of Hackney. The Employment Tribunal majority dismissed the complaint, although one member dissented.

The Employment Appeal Tribunal unanimously allowed her appeal, finding an error of law and remitting the complaint for rehearing before a differently constituted tribunal. Mr Jarman and the London Borough of Hackney sought permission to appeal to the Court of Appeal. The central issue was whether the Employment Tribunal had correctly approached the notional comparator and the evaluation of the explanation for the treatment.

1. Permission refused. Lord Justice Mummery concluded that the proposed appeal had no real prospect of success. The Employment Tribunal’s order dismissing the complaint was not sustainable because its extended reasons disclosed an error of law. The Employment Appeal Tribunal was correct to remit the matter for rehearing by a differently constituted tribunal.
2. The actual comparator relied upon by the claimant, Mrs Jordan, did not satisfy the statutory criteria. The correct consequence was to consider whether the claimant had been treated less favourably than a hypothetical white employee in the same relevant circumstances.
3. In carrying out that notional-comparator exercise, the tribunal had to examine the reasons why the white employees Mr Gorst and Mr Mahoney received favourable treatment which the claimant did not receive. Their treatment was materially relevant to whether the claimant had been treated less favourably than the notional comparator.
4. The Tribunal had made trenchant findings that the reference was misleading, irresponsibly delivered and designed to prevent the claimant’s appointment. Although unfair or bad treatment is not necessarily discriminatory treatment, those findings made it particularly important to examine the better treatment of the white employees and the reasons for the difference.
5. The Tribunal also erred by failing to evaluate the respondent’s explanation and, if it found that explanation inadequate or unsatisfactory, to decide what inference should be drawn. The approach required by King v The Great Britain China Centre [1991] IRLR 513, as approved in Zafar v Glasgow City Council [1998] IRLR 36, had not been properly applied.
6. The complaint was therefore remitted to the Employment Tribunal for rehearing. The formal order was that the application for permission to appeal was refused.

• Court of Appeal (Civil Division): Permission to appeal from the Employment Appeal Tribunal was refused. The remittal for rehearing was upheld.
• Employment Appeal Tribunal: The claimant’s appeal was allowed for error of law, and the complaint was remitted to a differently constituted Employment Tribunal.
• Employment Tribunal: The majority dismissed the race-discrimination complaint; one member dissented.