Mekini v DSG Retail Ltd

Improper or unreasonable treatment of an employee does not, without more, establish direct racial discrimination. An inference of racial discrimination may arise where the facts disclose a prima facie difference in treatment connected with race. But an employer may rebut that inference by showing a credible, non-discriminatory explanation supported by the evidence. An appellate court will not interfere with factual findings providing such an explanation unless the tribunal has erred in law. A tribunal’s reference to institutional racism is immaterial where the pleaded case concerns actual discrimination by individuals and the reference does not affect the outcome.

The applicant, employed by DSG Retail Ltd, was dismissed after breaking off a security search. He alleged direct racial discrimination under sections 1 and 4 of the Race Relations Act 1976. The Employment Tribunal found no evidence of racial discrimination, although it considered the dismissal process improper and unreasonable. The Employment Appeal Tribunal dismissed his appeal following a preliminary hearing on 26 April 2002. Permission to appeal was refused on paper, and the applicant renewed his application before the Court of Appeal. The central issues were whether the Employment Tribunal had erred by referring to the absence of an allegation of institutional racism and whether it had been entitled to accept a non-discriminatory explanation without positive evidence about the treatment of other employees.

1. Application refused. The Employment Appeal Tribunal had not erred in law in dismissing the appeal from the Employment Tribunal.
2. The reference to institutional racism was not adverse to the applicant. Institutional racism was not a term appearing in the relevant statutory provisions, and the tribunal was simply distinguishing a claim of actual racism by individuals from a wider institutional allegation. The reference was, at most, superfluous and neutral as to the result.
3. The Employment Tribunal was entitled to find that the dismissal resulted from the employer’s belief that the applicant had broken off a security search in suspicious circumstances. That finding was supported by the tribunal’s assessment of the detailed factual history and could not be attacked successfully as unsupported by evidence.
4. The approach described by Lord Justice Sedley in Anya v University of Oxford [2001] IRLR 377, namely that unreasonable treatment of a black employee does not by itself establish racial discrimination and that the employer’s explanation must be assessed by reference to the evidence, was materially reflected in the tribunal’s reasoning. The tribunal had identified a plausible non-discriminatory explanation: inexperience in handling a situation where a lesser charge was pursued after suspicion of a more serious offence could not be proved.
5. The fact that the dismissal process would have been unreasonable, and would probably have supported an unfair-dismissal claim if that jurisdiction had existed, did not establish that race was the reason for dismissal. The application was therefore refused.

• Court of Appeal (Civil Division): on 24 September 2002, the renewed application for permission to appeal was refused.
• Employment Appeal Tribunal: dismissed the appeal from the Employment Tribunal following a preliminary hearing on 26 April 2002.
• Employment Tribunal: found no evidence of direct racial discrimination, although it considered the dismissal process improper and unreasonable.