Moyo v Tower Hamlets Consortium

In a direct race discrimination claim, a tribunal must first determine whether the claimant received less favourable treatment than an actual or hypothetical comparator in the same circumstances. Only then must it consider whether the difference was on racial grounds, including the employer’s non-discriminatory explanation. If that explanation is accepted, the tribunal need not determine whether the treatment resulted from conscious or unconscious racial motivation. An appellate court will not re-open factual findings where evidence supports them and no error of law is shown.

An Employment Tribunal dismissed complaints of racial discrimination and victimisation brought by Mrs Moyo against her former employers under the Race Relations Act 1976. Following a preliminary hearing, the Employment Appeal Tribunal limited the appeal to a question concerning conscious or unconscious discrimination. The Employment Appeal Tribunal allowed the victimisation appeal and remitted it, but dismissed the direct discrimination appeal. Mrs Moyo sought permission to appeal that dismissal to the Court of Appeal, alleging errors in the Tribunal’s approach and findings of fact.

1. Direct discrimination. The Employment Tribunal’s self-direction was legally sound. Consistently with King v Great China Centre [1991] IRLR 513, Anya v University of Oxford [2001] IRLR 377 and Zafar v Glasgow City Council [1998] IRLR 36, it first considered the primary facts and whether there had been less favourable treatment compared with an actual or hypothetical comparator in the same circumstances. It then considered whether any difference was on racial grounds, including the employer’s explanation.
2. The Tribunal found no less favourable treatment in seven of the eight matters relied upon. In the remaining matter, concerning the probationary process, it found a difference in treatment and race but accepted the employer’s explanation. It also found that a hypothetical white manager would have been dismissed. The claim therefore failed before any question of conscious or unconscious racial motivation arose.
3. The Court of Appeal would not re-examine factual findings. The appellant’s factual grounds had already been excluded by the preliminary-hearing order, and there was material on which the Tribunal could base its conclusions. No perversity or complete failure to consider a crucial matter was shown.
4. The Employment Appeal Tribunal’s separate decision on victimisation was explained for context. The Tribunal had made a manifestly erroneous finding that the protected act played no part in the dismissal, despite disciplinary notes containing five references to it. That claim was properly remitted to a different tribunal.
5. Permission to appeal on direct discrimination was refused. An approved transcript was directed at public expense.

• Court of Appeal (Civil Division): On 30 July 2004, refused permission to appeal against the dismissal of the direct discrimination claim. [2004] EWCA Civ 1246
• Employment Appeal Tribunal: On 26 March 2004, allowed the victimisation appeal and remitted that claim to a different tribunal, but dismissed the appeal concerning direct race discrimination.
• Employment Tribunal: The Tribunal’s decision, promulgated on 12 June 2003, dismissed the complaints of racial discrimination and victimisation under the Race Relations Act 1976.