St Christopher's Fellowship v Walters-Ennis

The statutory burden of proof in a direct race discrimination claim shifts only where, on all the evidence, a reasonable employment tribunal could properly conclude that discrimination occurred without an adequate explanation. Poor treatment, inadequate communication or a mistaken belief about a relationship do not, without more, establish racial grounds. The tribunal must examine the alleged discriminator’s state of mind. A genuine, albeit mistaken, non-racial belief explaining exclusion from a recruitment process may prevent any reasonable inference of race discrimination, particularly where similar treatment was found to have been non-racial. A hypothetical comparator is not required in every case.

Following a seven-day hearing, the Employment Tribunal upheld the respondent’s liability for constructive unfair dismissal and one complaint of direct race discrimination. The discrimination complaint concerned the claimant’s exclusion from recruitment for an administrator at the respondent’s Southend office. The Employment Appeal Tribunal dismissed the respondent’s appeal on 8 October 2009 (UKEAT/0412/08/CEA). Liability for unfair dismissal was accepted, leaving the race discrimination finding as the remaining issue. The central question was whether the tribunal had properly applied section 54A(2) of the Race Relations Act 1976 in concluding that the facts could support an inference of racial grounds, despite its finding that similar recruitment treatment had not been racially motivated.

1. Appeal allowed. The Employment Tribunal’s finding of direct race discrimination was based on an error of law. The constructive unfair dismissal finding was unaffected, and the remaining race discrimination complaint was dismissed.
2. Section 54A(2) of the Race Relations Act 1976 requires the claimant to prove facts from which a reasonable employment tribunal could properly conclude, from all the evidence including the respondent’s evidence, that discrimination occurred without an adequate explanation. The statutory burden does not shift merely because the claimant was treated badly. This approach was applied in Madarassy v Nomura International PLC [2007] IRLR 246.
3. In a direct discrimination claim, the tribunal must generally identify what was in the alleged discriminator’s mind. This is usually done by drawing appropriate inferences from primary facts and surrounding circumstances: Law Society v Bahl [2003] IRLR 640.
4. The respondent had genuinely, although mistakenly, believed that the claimant was too closely connected with the candidate to participate fairly in the recruitment process. That non-racial belief explained the exclusion. The respondent’s failure to investigate the relationship, communicate properly or give an adequate explanation was properly criticised as patronising and contemptuous, but it could not rationally support an inference of racial grounds in the circumstances.
5. The tribunal had found that similar treatment concerning another recruitment exercise was not racially motivated. The factual differences between the two exercises did not explain the opposite conclusions. The discrimination finding was therefore internally inconsistent with the tribunal’s earlier finding.
6. The tribunal did not err in treating the claimant as excluded from stages of the recruitment process before the interview, including advertising and sifting. Nor was it necessary to construct a hypothetical comparator in every case where the tribunal found that the reason for the treatment was non-racial.

• Court of Appeal (Civil Division): On 30 July 2010, allowed the appeal and dismissed the remaining race discrimination complaint: [2010] EWCA Civ 921.
• Employment Appeal Tribunal: On 8 October 2009, dismissed the respondent’s appeal from the Employment Tribunal: UKEAT/0412/08/CEA.
• Employment Tribunal: Judgment registered on 24 June 2008. The tribunal upheld complaints of constructive unfair dismissal and direct race discrimination.