Ahmed v London Borough Of Hackney & Anor

In a discrimination claim, apparently neutral acts may be considered cumulatively. The tribunal must distinguish detrimental treatment from the alleged racial motivation for that treatment. An earlier act outside the limitation period may be admissible as evidence if it sheds relevant light on the quality or motivation of later acts. It is insufficient that the earlier act was merely similar and detrimental; it must tend to show a discriminatory motivation. A challenge based on the standard of proof cannot be raised speculatively on appeal where the evidence and pleadings do not establish how the standard was applied.

Mrs Ahmed complained to the Employment Tribunal of race discrimination, racial victimisation and unfair dismissal arising from the termination of her employment by the London Borough of Hackney. The Tribunal rejected the discrimination and victimisation complaints but found the dismissal procedurally unfair because of the delay in communicating the decision.

She appealed unsuccessfully to the Employment Appeal Tribunal. At the Court of Appeal she sought permission to appeal, challenging the standard of proof, the exclusion of earlier evidence, and the Tribunal’s analysis of direct discrimination and victimisation.

1. Permission refused. The proposed appeal had no realistic prospect of success.
2. The civil standard of proof applies in disciplinary proceedings. Although the standard is capable of responding to the gravity of the allegation, the evidence did not establish how the disciplinary officer had interpreted or applied it. It was too late to raise the point speculatively on appeal without a properly pleaded issue and a reasoned decision below.
3. In discrimination cases, the tribunal must analyse the elements of the statutory claim separately and then consider them successively and cumulatively. It must distinguish detrimental treatment, which may be innocent or justified, from the racial motivation which would deprive it of that character. A series of ostensibly neutral acts may, viewed together, support an inference of discrimination.
4. Evidence of antecedent conduct outside the limitation period is not automatically inadmissible. It may be admitted where it is capable of shedding relevant light on the quality or motivation of later acts within time. However, earlier conduct that is merely further facially neutral and detrimental treatment, without tending to show racial animus, cannot assist the claim.
5. The Tribunal had addressed the overall picture and had concluded that the conduct reflected a deteriorated working relationship rather than racial motivation. The excluded 1993 incident concerned similar apparently neutral friction and was incapable of changing that assessment.

Order: application for permission to appeal refused.

• Court of Appeal (Civil Division): Mrs Ahmed sought permission to appeal from the Employment Appeal Tribunal’s refusal to entertain her appeal at a preliminary hearing. Permission was refused.
• Employment Appeal Tribunal: The appeal from the Employment Tribunal was held unsustainable at a preliminary hearing.
• Employment Tribunal: The discrimination and victimisation complaints were rejected, but the dismissal was found procedurally unfair because of delay in communicating the decision.