Fosh v Cardiff University

A claim of victimisation requires proof that less favourable treatment was because the claimant did a protected act. Representation of another person in race-discrimination proceedings may be protected, but its status depends on context. It does not displace duties of fidelity and confidentiality. Where disciplinary action is motivated by a genuine conflict of interest and breach of confidentiality, rather than the protected act, it is not victimisation. The reverse burden provisions in section 54A of the Race Relations Act 1976 do not govern a section 2 victimisation claim. On review, an appellate court does not retry facts. A tribunal’s findings stand if they were legally permissible and supported by evidence.

Professor Fosh, an employee of Cardiff University, represented a former doctoral student in race-discrimination proceedings against the University and provided information to the Commission for Racial Equality. The University regarded her conduct as involving a conflict of interest, breach of confidentiality and other misconduct. She was dismissed following disciplinary proceedings.

The Employment Tribunal dismissed her claims for victimisation under the Race Relations Act 1976 and unfair dismissal under section 94 of the Employment Rights Act 1996. The Employment Appeal Tribunal dismissed her appeal on 23 January 2008. The issue before the Court of Appeal was whether there was any arguable error of law justifying permission to appeal.

Disposition. The renewed application for permission to appeal was refused. The respondent was awarded the costs of the application, to be assessed if not agreed.

1. Appellate review. The Court of Appeal reviews the EAT’s decision for an error of law. It does not retry the facts or substitute its own assessment for that of the Employment Tribunal. Findings must stand where they were properly open to the Tribunal on the evidence and the correct legal approach was used.
2. Victimisation. Representation of another person in race-discrimination proceedings can, in some circumstances, be a protected act under section 2 of the Race Relations Act 1976. The Tribunal was entitled to assess the representation in its professional and contractual context. Following the approach in Aziz v Trinity Street Taxis Limited and others [1988] EWCA Civ 12, the decisive question was why the University treated the claimant as it did. The Tribunal permissibly found that the reason was the glaring conflict of interest and breach of confidentiality, not the protected act. Disciplinary action and dismissal were therefore not victimisation.
3. Burden of proof and statutory arguments. Section 54A did not apply to a section 2 victimisation claim. The applicant’s reliance on the contractual invalidity provisions and on Articles 1 and 9 of the Race Relations Equality Directive (2000/43/EC) did not alter that conclusion.
4. Convention rights and unfair dismissal. The email search was a prima facie interference with Article 8, but the Tribunal was entitled to find it justified under Article 8.2. Applying the structured guidance in X v Y (2004) IRLR 625, the Convention rights did not make the dismissal unfair. The lengthy suspension was undesirable but did not require a finding that the dismissal was procedurally unfair.

1. Court of Appeal (Civil Division): on 3 February 2009, refused the renewed application for permission to appeal and ordered costs.
2. Employment Appeal Tribunal: on 23 January 2008, dismissed the appeal from the Employment Tribunal.
3. Employment Tribunal: on 30 July 2007, dismissed the claims for victimisation and unfair dismissal.