Anya v University of Oxford

In a direct race discrimination claim, the tribunal must decide whether race was an effective cause of the impugned decision by making findings on the material primary facts and assessing the totality of the evidence. Contextual incidents are evidential facts, not necessarily separate complaints, but cannot be left unresolved where they may support an inference of racial bias.

An assessment that a witness is essentially truthful does not remove the need to evaluate inconsistencies, documents, probabilities and other evidence. A tribunal must give adequate, intelligible reasons for its conclusion. The absence of overt discrimination, or a preliminary view that a claim is unlikely to succeed, does not justify curtailing necessary fact-finding.

Dr Anya, a black Nigerian research scientist, alleged that the University had directly discriminated against him on racial grounds when it appointed a white candidate, Dr Lawrence, to a postdoctoral research post.

The Industrial Tribunal dismissed the complaint. It accepted that Dr Anya had been treated less favourably, but accepted the respondents’ non-racial explanation. The Employment Appeal Tribunal dismissed his appeal, holding in substance that the claim lacked realistic prospects.

Dr Anya appealed to the Court of Appeal. The central issue was whether the tribunal and the Employment Appeal Tribunal had lawfully determined the complaint without making findings on the prior incidents, documentary inconsistencies and procedural departures relied on as evidence of racial bias.

Appeal allowed. In the judgment of the Court, delivered by Sedley LJ, the Industrial Tribunal’s decision could not stand. The claim was remitted for a rehearing before a new Employment Tribunal.

1. The only pleaded act of discrimination was the selection of Dr Lawrence rather than Dr Anya. The application, interview and earlier dealings were not separate complaints. They were, however, potentially important evidential facts bearing on whether that selection was made on racial grounds.

2. Under King v Great Britain-China Centre [1992] ICR 516, a claimant must establish discrimination on the balance of probabilities. Direct evidence will often be absent. The tribunal must therefore find the primary facts and decide what inference may properly be drawn from all the circumstances, including the employer’s explanation.

3. The Industrial Tribunal had found less favourable treatment but had not resolved material allegations of prior hostility, unequal treatment, inconsistencies in evidence and documents, or departures from the University’s recruitment procedures. Its favourable impression of Dr Roberts’ honesty did not make those matters immaterial. Credibility had to be tested against the objective evidence, motives and overall probabilities.

4. The Employment Appeal Tribunal erred in treating the absence of overt discrimination and its view that the claim was speculative as grounds for abbreviating fact-finding. Such surrounding facts could, if established, support an inference of conscious or unconscious racial bias. An appellate court could not make those factual findings in place of the tribunal.

5. A reasoned decision had to explain the material findings and the route to the conclusion. That requirement was reinforced by the need for adequate and intelligible judicial reasons, including the approach required by the Human Rights Act 1998 to Article 6 jurisprudence.

The claim was remitted for rehearing before a new tribunal. The respondents were ordered to pay the appellant’s costs.

• Court of Appeal: Allowed Dr Anya’s appeal in [2001] EWCA Civ 405 and remitted the claim for a rehearing before a new Employment Tribunal.
• Employment Appeal Tribunal: Dismissed Dr Anya’s appeal from the Industrial Tribunal.
• Industrial Tribunal: Dismissed the direct race discrimination complaint in extended reasons dated 26 March 1998.