Bahl v The Law Society & Anor

Unreasonable, unfair or hostile treatment does not itself justify an inference of direct race or sex discrimination. An inference may arise where no explanation exists, but a genuine non-discriminatory reason may rebut it even if that reason is unreasonable.

A tribunal must identify the primary facts supporting each alleged ground of discrimination and explain why it rejects any obvious non-discriminatory explanation. Race and sex claims require separate analysis. A hypothetical comparator should possess the same material characteristics as the claimant apart from the protected characteristic.

An employment tribunal found that the Law Society, its President and its Secretary General had directly discriminated against Dr Kamlesh Bahl on grounds of race and sex in their handling of staff complaints that she had bullied employees. The Employment Appeal Tribunal allowed the respondents’ appeals and set aside those findings.

Dr Bahl appealed, principally contending that the tribunal could infer discrimination from unreasonable treatment and that its reasons were adequate. The Court of Appeal also considered whether the tribunal had addressed the pleaded complaints, distinguished race from sex discrimination, identified an appropriate hypothetical comparator, and provided an evidential basis for findings of unconscious discrimination.

1. The appeal was dismissed. The employment tribunal’s findings of race and sex discrimination contained errors of law and lacked a proper evidential basis. Its own findings disclosed non-discriminatory reasons for the adverse treatment, including personal hostility arising from the appellant’s treatment of staff and the respondents’ concern about its effect on the Law Society.

2. Unreasonable conduct does not, by itself, support an inference of discrimination. Such an inference may arise from the absence of any explanation for unreasonable treatment. It may nevertheless be rebutted by evidence of a genuine non-discriminatory reason, even if that reason was unjustified or unreasonable. Proof that the alleged discriminator treats everyone equally unreasonably is only one possible means of rebuttal, not an indispensable requirement.

3. The questions whether treatment was less favourable and why it occurred may be intertwined. In a case without an actual comparator, the hypothetical comparator must share all material circumstances apart from race or sex. Here the relevant comparison was with a white or male Vice-President facing the same serious bullying allegations.

4. A tribunal finding unconscious discrimination must identify with particular clarity the primary facts supporting the inference and explain why obvious non-discriminatory explanations do not account for the treatment. The tribunal failed to explain why race or sex influenced either individual. Its criticism of conduct it regarded as unfair or procedurally unreasonable repeatedly led it to draw impermissible inferences.

5. The evidence supporting race discrimination and sex discrimination had to be considered separately for each alleged discriminator. Treating the appellant simply as a black woman, without identifying the facts supporting each statutory ground, was an error of law.

6. A tribunal must decide the discriminatory acts actually complained of. It cannot reject the pleaded act and substitute another act which was not alleged, particularly where the individual respondent had no fair opportunity to address it.

7. Remittal was inappropriate. This was not merely a case of inadequate reasons: there was no evidence upon which the findings of discrimination could properly be made, while the tribunal had positively found non-discriminatory explanations. The applications for adjournment, further evidence and permission to advance the additional ground were also dismissed.

1. Court of Appeal (Civil Division): Dismissed Dr Bahl’s appeal and upheld the Employment Appeal Tribunal’s setting aside of the discrimination findings: [2004] EWCA Civ 1070.
2. Employment Appeal Tribunal: Allowed the respondents’ appeals, reversed the findings of unlawful race and sex discrimination, and held that the Law Society’s derivative liability consequently fell away.
3. Employment Tribunal: Found that the Law Society, Mr Sayer and Mrs Betts had discriminated against Dr Bahl on grounds of both race and sex. It dismissed the separate victimisation claim.