Madden v Preferred Technical Group CHA Ltd & Anor

Under the Race Relations Act 1976, less favourable treatment and an inadequate explanation do not automatically require an inference of racial discrimination. An employment tribunal may decline to draw that inference where the evidence provides no proper basis, but it must explain briefly why.

A hypothetical comparator must have the same, or not materially different, relevant circumstances. It need not be a clone differing only in race or nationality. Less favourable treatment against such a comparator does not itself prove racial grounds. The tribunal must address the causal reason-why question. In victimisation claims, the relevant question is whether the claimant would have been treated the same without the protected act.

The appellant, an Irish employee, brought claims under the Race Relations Act 1976 alleging direct race discrimination and victimisation, alongside unfair and wrongful dismissal claims. His initial race-discrimination complaint was dismissed in 1997 and became the protected act relied on for victimisation.

The Employment Tribunal later found unfair and wrongful dismissal but dismissed the discrimination claims. The Employment Appeal Tribunal allowed an appeal in 2001 and remitted the discrimination issues for reconsideration. The Tribunal dismissed them again on 1 July 2003, and the Employment Appeal Tribunal dismissed the further appeal on 2 December 2003. The central issues before the Court of Appeal were the relevance of motivation, the construction of hypothetical comparators, the drawing of inferences from inadequate explanations, the adequacy of reasons, and causation in victimisation.

Lord Justice Wall delivered the principal judgment. Lord Justices Hooper and Ward agreed. The appeal was dismissed.

1. Motivation. The Tribunal did not misdirect itself by stating that conscious or deliberate motivation was immaterial. In context, that direction meant that the appellant did not have to prove a consciously held intention to discriminate. The statutory questions remained whether treatment was on racial grounds or was caused by the protected act.
2. Hypothetical comparators. Sections 1(1)(a) and 3(4) of the Race Relations Act 1976 require the relevant circumstances of the claimant and comparator to be the same or not materially different. The Tribunal’s comparator, based on similar status, different nationality or ethnic origin and a similar factual setting, complied with the statute. It did not have to be a clone identical in personality and personal characteristics except for race or nationality. This was consistent with the reasoning in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285.
3. Inferences and reasons. A tribunal is not required to infer racial discrimination merely because it has found less favourable treatment and an inadequate explanation. It may conclude that the evidence does not warrant an inference or supplies no evidential basis for one. Where it declines to infer discrimination in those circumstances, it should state that it is doing so because of the particular evidential position and give a short, adequate explanation. The Tribunal’s reasons had to be read as a whole, including the earlier and later decisions. It was entitled to consider the complaints overall, provided that the global assessment did not replace findings required for individual allegations. The Tribunal sufficiently explained the result by attributing the treatment to a longstanding poor working relationship, unrelated to the appellant’s Irish nationality. The approach was distinguishable from Deman v Association of University Teachers [2003] EWCA Civ 329, where the evidence supporting adverse inferences had not been addressed.
4. Victimisation. The Tribunal identified the proceedings issued on 24 December 1996 as the protected act. It was entitled to conclude that later treatment reflected the continuing poor working relationship and that the appellant would have been treated in the same way had the protected act not been committed. That conclusion supplied adequate reasons for dismissing the victimisation claim.

The appellant was ordered to pay the respondents’ costs of the appeal.

1. Court of Appeal (Civil Division): dismissed the appeal on 27 August 2004; Lords Justices Hooper and Ward agreed. [2004] EWCA Civ 1178
2. Employment Appeal Tribunal: dismissed the appellant’s appeal from the Tribunal’s second decision on 2 December 2003.
3. Employment Tribunal: on 1 July 2003 dismissed the claims of direct race discrimination and victimisation following remittal.
4. Employment Appeal Tribunal: allowed the earlier appeal on 22 January 2001 and remitted the discrimination issues for reconsideration.
5. Employment Tribunal: dismissed the initial race-discrimination complaint on 27 November 1997. The subsequent proceedings became the protected act relied on in the victimisation claim.