Vaseghi v Brunel University

In a claim of racial discrimination or victimisation under the Race Relations Act 1976, an alleged discriminator’s motivation may be subconscious; it is not confined to a conscious connection with racial matters. An employment tribunal that has directed itself using the wrong legal test must give a reasoned reconsideration. A later assertion that the correct issue was considered will not cure a material misdirection where the decision contains no reasoning on that issue. Tribunal reasons must expose the decisive reasoning and address material arguments, particularly after a remission for fuller explanation. Where fair reconsideration by the original tribunal is no longer practicable, a differently constituted tribunal may be ordered to conduct a full rehearing.

Professor Saeed Vaseghi claimed that Brunel University had subjected him to racial discrimination, victimisation for earlier proceedings, and detriment related to union membership or activities. The Employment Tribunal dismissed all claims after a five-day hearing. The first Employment Appeal Tribunal found a misdirection on subconscious discrimination and inadequate reasoning concerning the union-related detriment, and remitted questions for reconsideration. The Tribunal’s written response asserted that it had considered subconscious motivation and gave a short explanation for the email inquiry. The second Employment Appeal Tribunal allowed the appeal and ordered a rehearing before a differently constituted tribunal. The University appealed. The central issues were whether the response cured the misdirection, whether the reasons on the union claim were adequate, and whether a full rehearing before a different tribunal was justified.

1. Disposition. The appeal was dismissed unanimously. The order for a rehearing before a differently constituted Employment Tribunal was upheld.
2. Subconscious motivation. The Employment Tribunal had adopted the erroneous approach that the discriminator’s motivation had to be consciously connected with racial matters. The House of Lords decision in Nagarajan v London Regional Transport, [1999] IRLR 572 HL, established the relevant approach under section 2(1) of the Race Relations Act 1976: motivation may also be subconscious. The Tribunal’s later assertion that it had considered and rejected subconscious discrimination did not cure the error. Its original reasons contained no reasoning on that issue and its later explanation was inconsistent with the original direction.
3. Adequacy of reasons. A tribunal need not address every submission, but its reasons must expose its reasoning on decisive issues and enable the parties to understand why they won or lost. A conclusory explanation may sometimes suffice, depending on the case, as recognised in English v Emery Reimbold & Strick Ltd, [2003] IRLR 710. It was inadequate here, particularly because the matter had been remitted for fuller reasoning.
4. Union detriment. The majority considered that the Tribunal had not sufficiently explained why the email disciplinary inquiry was unrelated to protected union activity under section 146 of the Trade Union and Labour Relations Consolidation Act 1992. Lord Justice Sedley regarded the reasoning as independently inadequate. Lord Justice Hughes would have found the second explanation sufficient had the section 146 issue stood alone, but agreed that the subconscious-discrimination error required a retrial.
5. Remission. The Court of Appeal would not determine grounds that had never been considered by the Employment Appeal Tribunal. Given the original Tribunal’s concluded view on subconscious discrimination and the lack of confidence in a fair reconsideration by that Tribunal, a full rehearing before a different Tribunal was the only practical course.

1. Court of Appeal (Civil Division): On 21 November 2006, dismissed the University’s appeal from the Employment Appeal Tribunal’s order.
2. Employment Appeal Tribunal: The second EAT allowed the appeal by order dated 3 November 2005 and remitted the claims for rehearing before a differently constituted tribunal. The first EAT had remitted questions concerning subconscious discrimination and the adequacy of reasons on the union-related detriment.
3. Employment Tribunal: After a five-day hearing, dismissed the claims in its reserved decision dated 7 July 2004. Its subsequent written response did not cure the defects identified on appeal.