Tower Hamlets Primary Care Trust v Ugiagbe

In a direct race discrimination claim, unreasonable or differential treatment does not itself justify an inference of discrimination. The tribunal must identify the particular less favourable treatment complained of, compare it with treatment of a person whose relevant circumstances are materially the same, and explain why the primary facts could support an inference that the difference was because of race.

Under section 54A of the Race Relations Act 1976, the tribunal must then decide whether the employer has proved an adequate, non-discriminatory explanation. The analysis must address all relevant evidence, including the employer’s reasons, and must not be applied mechanically. A tribunal must determine the complaint actually made and cannot substitute a different alleged discriminatory act.

Mr Ugiagbe, a black employee of Tower Hamlets Primary Care Trust, brought claims of unfair dismissal and direct race discrimination. Following a ten-day hearing, the Employment Tribunal found his dismissal unfair and discriminatory and upheld ten additional allegations of discriminatory treatment.

The Trust appealed against the findings of race discrimination. It argued that the Tribunal had failed properly to apply the statutory burden of proof, had inferred discrimination from unreasonable treatment, had considered acts which were not the pleaded complaints, and had failed to give adequate reasons. The central issues were whether the Tribunal had properly identified the acts complained of, applied the comparator and burden-of-proof principles, and explained its inferences of racial causation.

1. Appeal allowed. The findings of race discrimination, including the finding that the dismissal was discriminatory, were set aside. The finding that the dismissal was unfair on other grounds was not challenged and was not reopened.
2. Direct discrimination required less favourable treatment, a detriment, and treatment on racial grounds. The tribunal had to compare the treatment with that of a person from another racial group whose relevant circumstances were the same or not materially different. Identification of a comparator should not become an arid technical exercise, but the tribunal still had to determine why the claimant was treated as he was.
3. The two-stage burden under section 54A of the Race Relations Act 1976 had to be applied. First, the claimant had to prove facts from which the tribunal could conclude, in the absence of an adequate explanation, that discrimination had occurred. Secondly, the employer had to prove, on the balance of probabilities, an adequate explanation unrelated to race. The first stage required consideration of all relevant evidence, including evidence advanced by the employer about the reasons for differential treatment.
4. The Tribunal’s reasoning was flawed in several respects. It failed to identify clearly the less favourable treatment and the primary facts supporting an inference of racial causation. In several complaints it appeared to infer discrimination because treatment was unreasonable or insufficiently explained, contrary to the principle in Zafar. It also failed to engage adequately with non-discriminatory explanations, including the managers’ genuine concerns about competence and the reason for delaying interviews.
5. The Tribunal adjudicated on acts which had not been the complaints identified for determination, including aspects of the grading process and the manner in which redundancy options were presented. That was impermissible: the tribunal had to decide the act complained of and could not substitute another alleged discriminatory act.
6. The case was remitted for a complete rehearing before a differently constituted Tribunal. Only the complaints forming the subject of the appeal were to be reconsidered.

• Employment Tribunal: upheld the unfair dismissal claim, found the dismissal discriminatory, and upheld ten additional allegations of race discrimination.
• Employment Appeal Tribunal: allowed the Trust’s appeal, set aside all race discrimination findings, and remitted the relevant complaints for rehearing before a differently constituted Tribunal.