Williams v HM Prison Service

Permission to appeal in discrimination proceedings should be refused where the employment tribunal’s reasons, read fairly and as a whole, explain why the complaints fail. A tribunal need not use particular statutory terminology where its factual findings inevitably answer the relevant statutory question.

A hypothetical comparator is not required in every race-discrimination case. Where treatment was assessed against objective criteria, the tribunal may determine the issue by examining whether those criteria were fair, properly applied and free from racial bias. For victimisation, an express finding in the statutory language is unnecessary if the findings show that the protected act had no bearing on the impugned treatment.

Mr Williams, a Nigerian employee of black African origin, complained that HM Prison Service had discriminated against him during an assessment at Birmingham Prison and when he failed the sift criteria for a prison-officer application at Highpoint Prison. He also alleged victimisation, contending that the Highpoint decision was connected with his earlier discrimination proceedings.

The employment tribunal dismissed the complaints and refused a review. The Employment Appeal Tribunal dismissed his appeal on points of law. Mr Williams applied to the Court of Appeal for permission to appeal, alleging inadequate reasons, errors in the treatment of race discrimination and victimisation, and errors concerning the sift criteria.

1. Application refused. The Court of Appeal, per Lord Justice Pill, agreed with the Employment Appeal Tribunal’s reasoning. The application was, in substance, a second appeal against a tribunal decision reviewed by a circuit-judge-led Employment Appeal Tribunal.
2. The employment tribunal had given sufficient reasons. It examined the Birmingham assessment procedure, the applicable internal guidelines, the fairness and application of the objective criteria, and evidence concerning other candidates. Its finding that it had found no evidence of racial bias was adequate to explain the dismissal of the race-discrimination complaint.
3. A hypothetical comparator was not required on these facts. The principle discussed in Balamoody v United Kingdom Central Council for Nursing [2002] IRLR 288 did not provide an arguable ground of appeal because the assessment was conducted by objective criteria which had been independently reviewed for bias and properly applied. The tribunal had also considered an actual comparator. Its findings meant that Mr Williams would have been treated no differently if he had been of another race.
4. The alleged misdescription or uncertainty concerning paragraph 5.4.6 did not establish an arguable error of law. Although the paragraph might have been described inaccurately as part of the sift criteria, the tribunal had considered its effect, heard the relevant evidence and addressed the issue raised about reapplication within 12 months.
5. For victimisation under section 2 of the Race Relations Act 1976, the tribunal’s findings plainly showed that the earlier complaint had no bearing on the Highpoint decision. Those findings inevitably answered the question whether Mr Williams had been treated less favourably than a person who had not made a protected complaint. It was therefore unnecessary to add a separate finding using that precise statutory formulation, as discussed in London Borough of Hackney v Fashola (unreported, 12 January 1996).
6. The tribunal was entitled to conclude that race discrimination and victimisation had played no part in the adverse decisions. The application for permission to appeal was refused.

• Court of Appeal (Civil Division): permission to appeal refused.
• Employment Appeal Tribunal: appeal dismissed on 7 February 2002.
• Employment Tribunal: complaints of race discrimination and victimisation dismissed on 16 August 2000; review refused on 22 September 2000.