Deman v Association of University Teachers

In race discrimination and victimisation claims, direct evidence is uncommon. An Employment Tribunal must make clear findings of primary fact and assess the totality of those facts, including the respondent’s explanations, before drawing inferences. It must explain why it draws or declines to draw an inference. A conclusion that there is no evidence capable of supporting an inference is materially different from a reasoned conclusion that the inference should not be drawn. Motivation may be conscious or unconscious; conscious motivation is not required. Because such claims commonly depend on evaluating motivation and competing explanations, the reasons ordinarily need to be more careful and elaborate than in an ordinary unfair-dismissal case.

The appellant, a probationary lecturer at Queen’s University, Belfast, complained that the Association of University Teachers and its officers had discriminated against and victimised him in England in handling his complaints and applications for representation and legal aid. The London (North) Employment Tribunal dismissed the claims on 23 April 1999, despite making substantial criticisms of the respondents’ conduct. The Employment Appeal Tribunal, presided over by Lindsay J, dismissed the appellant’s appeal on 22 April 2002.

With permission, the appellant appealed to the Court of Appeal. The central issues were whether the Employment Tribunal had given adequate reasons, whether it had wrongly stated that there was no evidence from which an inference of discrimination or victimisation could be drawn, and whether it had failed to consider unconscious discrimination or victimisation.

Lord Justice Potter delivered the judgment of the court. The appeal was allowed, the Employment Tribunal’s decision was set aside, and the complaints were remitted for rehearing before a differently constituted Tribunal.

1. The London (North) Employment Tribunal had no jurisdiction over alleged acts of discrimination or harassment occurring in Northern Ireland because of section 80(2) of the Race Relations Act 1976. Northern Irish events could nevertheless provide the background to claims concerning conduct by the AUT and its officers in England.
2. Direct evidence of racial discrimination is unusual. The Tribunal must make clear findings of primary fact and draw such inferences as are proper from the totality of those facts, including the respondent’s explanations. The process involves common sense, judgment, assessment of probabilities and evaluation of the parties and witnesses. This approach was reflected in King v Great Britain-China Centre [1992] ICR 516, Qureshi v Victoria University of Manchester [2001] ICR 863 and Chapman v Simon [1994] IRLR 124.
3. The Employment Tribunal had a duty to give reasons for drawing or declining to draw the relevant inferences. In discrimination and victimisation cases, the reasons ordinarily require careful and elaborate analysis sufficient to explain why the parties won or lost and to permit appellate review. The standard was stated in Meek v City of Birmingham District Council [1987] IRLR 250 and applied in the subsequent authorities, including Anya v University of Oxford and another [2001] ICR 847.
4. The statement that there was no evidence from which an inference could be drawn was manifestly incorrect. The Tribunal’s own findings supplied abundant material from which such inferences could properly be drawn. If the Tribunal intended to conclude that the evidence did not justify drawing an inference, it had to explain that conclusion. Its reference to incompetence and cutting corners was inadequate.
5. Following Nagarajan v London Regional Transport [1999] IRLR 572, subconscious motivation may suffice for both discrimination and victimisation. The Tribunal may have erred by considering only conscious discrimination.
6. The appellant was directed to state his allegations and evidence within 28 days. The AUT was to respond within 28 days, followed by a case management conference. Race discrimination or victimisation allegations do not justify the introduction of irrelevant evidence. Costs were awarded, to be assessed in accordance with the Legal Fund Regulations.

1. Court of Appeal (Civil Division): On 14 March 2003, allowed the appeal, set aside the Employment Tribunal’s decision and ordered a fresh hearing before a differently constituted Tribunal: [2003] EWCA Civ 329.
2. Employment Appeal Tribunal: On 22 April 2002, Lindsay J dismissed the appellant’s appeal from the Employment Tribunal.
3. London (North) Employment Tribunal: On 23 April 1999, dismissed the appellant’s claims of race discrimination and victimisation.