Atabo v Kings College London & Ors James Newman Patricia Methven Madeleine Law

In a discrimination claim, the claimant must first establish facts from which a reasonable tribunal could conclude, on the balance of probabilities and without an adequate explanation, that unlawful discrimination occurred. A mere difference in status and treatment shows only a possibility. Where the tribunal finds that the alleged acts did not occur, it need not perform an artificial two-stage analysis or consider a comparator. Employment Tribunals are the primary fact-finders and their credibility findings are not open to appellate interference absent perversity. Their reasons are adequate if they make clear why the claim failed; they need not address every allegation separately. Procedural complaints require material unfairness, assessed proportionately.

The applicant brought claims of sex and race discrimination, sexual harassment, victimisation and breach of contract against her former employer and three employees. Following an eight-day hearing, the Employment Tribunal for London South unanimously dismissed the claims on 20 May 2005. The Employment Appeal Tribunal, chaired by Elias J, dismissed her appeal at a preliminary ex parte hearing on 23 February 2006.

The applicant sought permission to appeal, alleging inadequate reasons, procedural unfairness, failure to apply the two-stage burden-of-proof approach in Igen Limited v Wong [2005] EWCA Civ 142, and failure to consider a comparator. The central issue was whether the Tribunal erred by not applying that process where it rejected the factual allegations and found no prima facie case.

1. Application dismissed. The application for permission to appeal was hopeless. There was no realistic prospect of a successful substantive appeal.
2. The Employment Tribunal was entitled to find the facts and assess credibility. The applicant’s allegations were rejected as unfounded, and the Tribunal had abundant material for its conclusions. Appellate intervention would require an error of law, such as perversity. Mere disagreement with factual findings was insufficient.
3. The Tribunal’s reasons were adequate. An objective reader could understand why the claims failed. The Tribunal was not required to address every allegation separately where its overall findings clearly rejected the case and gave cogent reasons. This was consistent with the reasons principle in Meek v Birmingham City Council [1987] IRLR 250.
4. The recent authorities, including Igen Limited v Wong [2005] EWCA Civ 142 and Madarassy v Nomura International PLC [2007] EWCA Civ 33, confirmed the statutory burden-of-proof approach. The claimant must first establish facts from which a reasonable tribunal could conclude that discrimination occurred. Bare differences in status and treatment are insufficient. The respondent’s explanation becomes relevant only after a prima facie case is established.
5. Because the Tribunal found that the alleged discriminatory acts had not occurred and that no prima facie case had been made out, it was unnecessary to undertake an artificial two-stage analysis. The EAT was also correct to rely on Shamoon v Chief Constable of the RUC [2003] UKHL 11 in recognising that the two-stage process need not be worked through where the factual position and non-discriminatory explanation were clear. In the absence of a prima facie case, the question of a comparator did not arise.
6. The procedural complaints disclosed no unfair trial or material disadvantage. Employment Tribunals are masters of their own procedure within the applicable Rules, and proportionality is required. Any minor irregularity could not have affected the result.

1. Court of Appeal (Civil Division) — On 19 April 2007, the application for permission to appeal was dismissed: [2007] EWCA Civ 324 .
2. Employment Appeal Tribunal — Elias J, sitting with lay members, dismissed the applicant’s appeal at a preliminary ex parte hearing on 23 February 2006.
3. Employment Tribunal for London South — Following an eight-day hearing, the Tribunal unanimously dismissed the claims on 20 May 2005.