Allen v Oliver Group Plc & Anor

In a racial-discrimination claim, the tribunal must distinguish between two questions: whether the claimant received less favourable treatment than a person in the same circumstances, and whether that treatment was on racial grounds. Those questions may be closely connected, but they remain analytically distinct.

An apparent inconsistency in one paragraph of tribunal reasons must be assessed against the reasons as a whole. A preliminary or shorthand finding should not be elevated into a final determination where the tribunal’s detailed consideration of each complaint resolves the issues. Where several complaints are made, it is safer to address treatment and causation separately for each complaint.

The appellant, an employee of the respondents, claimed racial discrimination concerning her treatment at work and her non-selection for promotion. An Employment Tribunal dismissed the claim on 23 August 1999. The Employment Appeal Tribunal dismissed her appeal on 9 February 2000, finding no error of law.

Permission to appeal to the Court of Appeal was granted on the narrow question whether paragraphs 9 and 16 of the tribunal’s reasons were irreconcilable. Paragraph 9 referred to less favourable treatment in relation to medical certificates, working hours and non-selection. Paragraph 16 concluded that the treatment resulted from the manager’s shortcomings and would have been applied to anyone in the same circumstances, irrespective of race.

1. Appeal dismissed. The tribunal’s direction, based on King v Great Britain China Centre 1991 1RLR 513, correctly identified the need to examine all the evidence and draw appropriate inferences without shifting the burden of proof.
2. The statutory analysis involved two linked but distinct issues. First, whether the appellant was treated less favourably than the employer treated, or would have treated, another person in the same circumstances. Secondly, whether any such unfavourable treatment was on racial grounds. That distinction reflected the formulation in Marks & Spencer PLC v Martins [1998] ICR 1005.
3. The tribunal’s reference in paragraph 9 to less favourable treatment was not intended to be a final determination of the treatment issue. Its later findings dealt with each complaint. The non-selection was explained by the presence of better candidates. The reduction in hours applied to all supervisors in the relevant area. The manager’s request for a medical certificate and failure to give notice of the reduction in hours constituted adverse or unsatisfactory treatment, but the tribunal was not satisfied that either was racial discrimination.
4. The tribunal’s conclusion that the manager’s shortcomings would have affected anyone in the same circumstances was therefore consistent with the detailed reasoning in paragraphs 10 to 14 and with the final conclusion in paragraph 16. Any possible error in the use of shorthand terminology did not disadvantage the appellant and disclosed no appealable error of law.
5. The court observed that, where there are several complaints, tribunals should ordinarily address the treatment and causation issues by reference to each individual complaint rather than globally.

• Court of Appeal (Civil Division): The appeal from the Employment Appeal Tribunal was dismissed. A Section II order was made against the Legal Service Commission.
• Employment Appeal Tribunal: The appellant’s appeal from the Employment Tribunal was dismissed on 9 February 2000.
• Employment Tribunal: The racial-discrimination claim was dismissed on 23 August 1999.