Onuegbu v Campbell

In direct race discrimination claims, a tribunal must apply the statutory comparator test to the facts. It is not enough to recite the correct test and then ask whether conduct met the standard of a responsible manager. The tribunal must identify a proper actual comparator or, where appropriate, ask how the employer would have acted towards a hypothetical person of a different race in the same circumstances. A genuine mistake about qualification criteria, coupled with inadequate checking of another candidate’s qualifications, does not itself establish less favourable treatment. Where discrimination is inferred from an unexplained difference in treatment, the tribunal must explain why the offered explanations are inadequate, unless the case is obvious and clear-cut. Material alternative explanations must be addressed under the Race Relations Act 1976.

The appellant, an employee of the Tottenham Legal Advice Centre, brought complaints of discrimination and victimisation against the Centre, its director and another employee. The Employment Tribunal dismissed most complaints but upheld discrimination complaints against the director concerning qualification criteria, notification of a recruitment process and the delivery of an application-form request.

The Employment Appeal Tribunal allowed the director’s appeal against that part of the decision. It held that the Employment Tribunal had failed to apply the proper comparator analysis and had not adequately explained why the director’s non-racial explanations were rejected. The appellant applied to the Court of Appeal for permission to appeal. The central issues were whether those criticisms disclosed errors of law and whether the proposed appeal had a real prospect of success.

1. Disposition. The application for permission to appeal was dismissed. The Court of Appeal held that the Employment Appeal Tribunal’s criticisms disclosed errors of law and that the proposed appeal had no real prospect of success.
2. Less favourable treatment. Under section 1 of the Race Relations Act 1976, the relevant inquiry was whether the appellant had received less favourable treatment on racial grounds. The Employment Tribunal had to apply that inquiry to the facts. It was insufficient to recite the correct legal tests earlier in the decision and then apply a different approach. Failure to apply the correct test could amount to an error of law.
3. The proper question was whether the alleged comparator was in the same or sufficiently similar circumstances, or, if not, how the employer would have acted towards a hypothetical person of a different race. The Tribunal instead focused on whether the director had acted as a responsible manager should have acted. That approach was wrong, as explained in Zafar v Glasgow City Council [1998] IRLR 36. The external candidate was an outsider, whereas the appellant worked at the Centre. The Tribunal also failed to conduct the required comparison in relation to the note left on the appellant’s desk.
4. The qualification reasoning was also defective. The director had made a genuine error about the applicable qualification criteria. The fact that the external candidate’s qualifications had been inadequately investigated did not, without more, establish less favourable treatment.
5. Racial grounds and reasons. The Court accepted the approach in King v The Great Britain-China Centre [1991] IRLR 513, under which a tribunal may infer discrimination where there is differential treatment, a difference in race and no adequate explanation. But, except in the most obvious cases, the tribunal must explain why the offered explanations are inadequate and identify the findings that support the inference. Anya v University of Oxford [2001] IRLR 377 illustrated that requirement. Here, there were possible non-racial explanations, including the poor relationship between the parties, and the Tribunal had not adequately addressed them.
6. The Court endorsed the Employment Appeal Tribunal’s observation that the parties should consider resolving the matter without a further hearing, since any eventual award might be small and further proceedings disproportionate.

1. Court of Appeal (Civil Division): On 11 June 2003, the application for permission to appeal was dismissed. [2003] EWCA Civ 858
2. Employment Appeal Tribunal: On 15 April 2003, the respondent’s appeal against part of the Employment Tribunal’s decision was allowed.
3. Employment Tribunal: Most complaints of discrimination and victimisation were dismissed, but the complaints of discrimination against the respondent director succeeded.