London Borough of Ealing v Rihal

In determining direct racial discrimination, an employment tribunal must identify sufficient primary facts but assess their cumulative effect. It may consider conduct outside the specific act complained of when deciding both why the claimant was treated as they were and how an actual or hypothetical comparator would have been treated.

Alleged discrimination extending over a substantial period should not be fragmented into isolated incidents. Earlier discriminatory conduct, including the denial of experience, may inform the assessment of a later promotion process. Treatment may be racially discriminatory even where the decision-maker is honest, acts without ill intention and does not consciously recognise the influence of racial stereotyping.

The employer appealed from the Employment Appeal Tribunal, which had dismissed its challenge to an Employment Tribunal decision upholding an employee's complaints of direct racial discrimination. The employee, a Sikh surveyor, alleged that a racial “glass ceiling” had impeded his advancement within the employer's housing department.

The challenged complaints concerned the continuation of an unfavourable allocation of responsibilities, low scores in a reorganisation and assimilation exercise, non-appointment to a senior post, and delay in dealing with a grievance. The central issue was whether the Tribunal had identified sufficient primary facts, undertaken the necessary comparison and given adequate reasons for inferring that racial grounds significantly influenced the treatment.

1. Appeal dismissed. Lord Justice Keene, with whom Lord Justice Sedley and Lord Justice Auld agreed, held that the Employment Tribunal had committed no error of law. It had made sufficient findings of primary fact, undertaken the comparative exercise required by the Race Relations Act 1976 and adequately explained its conclusions.

2. A tribunal must consider all relevant primary facts and the respondent's explanations when deciding whether treatment occurred on racial grounds. Evidence concerning conduct before or after the particular act complained of may be relevant. Where the statutory comparator is hypothetical, the tribunal may need to examine other events and past conduct to determine how the discriminator would have treated a person of another race in comparable circumstances. Material differences reduce the evidential weight of those events but do not necessarily exclude them.

3. The questions whether treatment was less favourable and whether it occurred on racial grounds are not rigidly sequential. They may be intertwined. Where discrimination is alleged over a substantial period, the tribunal should not isolate each incident from the wider course of conduct.

4. The discriminatory allocation of duties remained attributable to the employer when responsibility passed to a different manager. The arrangement did not cease to be discriminatory merely because the manager changed. The Tribunal was entitled to treat the uninterrupted period as a whole and to infer that the discriminatory treatment continued.

5. It was unnecessary to find that the employee would actually have obtained either reorganised post had he been white. Giving him a racially influenced lower score was itself less favourable treatment affecting access to promotion, or at least a detriment, under section 4(2) of the Race Relations Act 1976. A detriment required no more than placing the employee at a disadvantage.

6. The later interview process could not be isolated from earlier discriminatory conduct. Once the selection process concentrated upon experience, the Tribunal could take account of the handicap which the employer had imposed by previously denying the employee opportunities to gain that experience. The evidence of a racial glass ceiling, unequal interview opportunities and resistance to giving him further work provided an ample basis for the finding of discrimination.

7. Discrimination may influence an honest and honourable decision-maker without conscious recognition or ill intention. The Tribunal could therefore accept that a manager genuinely described his intended method while finding that racial stereotyping had unconsciously influenced his assessment.

• Court of Appeal (Civil Division): Dismissed the employer's appeal and affirmed the Employment Appeal Tribunal's decision. The appellant was ordered to pay the respondent's assessed costs.
• Employment Appeal Tribunal: On 11 September 2003, dismissed the employer's appeal from the Employment Tribunal.
• Employment Tribunal: Upheld the employee's complaints of direct racial discrimination under the Race Relations Act 1976.