Brown v London Borough of Croydon & Anor

In discrimination proceedings, the statutory two-stage burden of proof remains good practice. The claimant should first establish facts from which discrimination could be inferred without an adequate explanation. The respondent must then prove that the treatment was not on the proscribed ground.

A tribunal does not commit an error of law merely because it does not address the stages expressly and sequentially. Where it proceeds on the assumption that a prima facie case exists, considers the respondent’s explanation, and finds that race was not the reason for the treatment, the omission causes no prejudice. Where less favourable treatment and its cause are intertwined, the tribunal may properly concentrate on the reason why the claimant was treated as they were.

Mr Brown, a black employee of the London Borough of Croydon, brought claims including direct race discrimination against the Council and his former manager. Three complaints remained material: the manager’s discussion of colleagues’ concerns about him, the possible extension of his probationary period, and questions about outside work and mileage expenses.

The Employment Tribunal dismissed the claims on 23 June 2005. It accepted that the treatment arose from workplace-management concerns, not race. The Employment Appeal Tribunal, chaired by Elias J, dismissed Mr Brown’s appeal on 21 February 2006.

Mr Brown appealed on the ground that the Tribunal had failed to apply the statutory burden of proof sequentially. The central issue was whether that omission was an error of law requiring the decision to be set aside.

Appeal dismissed unanimously. Lord Justice Mummery gave the judgment, with which Laws and Maurice Kay LJJ agreed.

1. Section 54A(2) of the Race Relations Act 1976 provides a two-stage burden of proof. The claimant must first prove facts from which discrimination could be inferred in the absence of an adequate explanation. The respondent must then prove that the treatment was not on the prohibited ground.

2. The Employment Tribunal did not expressly analyse those stages separately. That did not itself establish an error of law. It had effectively proceeded on the assumption, favourable to Mr Brown, that there was a prima facie case requiring an explanation. It then accepted the Council’s and Mr Johnston’s non-discriminatory explanations.

3. The approach did not prejudice Mr Brown. It relieved him of proving, at a separate first stage and without reference to the respondents’ explanation, facts from which discrimination could be inferred. The Tribunal was entitled to conclude that the respondents had discharged the second-stage burden by proving that race was not the reason for the treatment.

4. Although the two-stage approach stated in Igen v Wong [2005] EWCA Civ 142 is generally good practice, it need not be applied in an express sequential form in every case. In cases involving a hypothetical comparator, the issues of less favourable treatment and the reason why may be inseparable. Consistently with Shamoon v Chief Constable of the RUC [2003] ICR 337, a tribunal may focus on the reason for the treatment where that resolves both issues.

• Court of Appeal (Civil Division): Dismissed Mr Brown’s appeal. The Employment Tribunal made no error of law in the circumstances.
• Employment Appeal Tribunal: On 21 February 2006, Elias J presiding, dismissed Mr Brown’s appeal from the Employment Tribunal.
• Employment Tribunal: On 23 June 2005, dismissed the claims for race discrimination, harassment and victimisation.