Edwards v Swindon Borough Council

An employment tribunal’s reasons must be assessed for substance rather than style. A judgment is not unlawful merely because it omits express references to statutory provisions or uses an imperfect structure, provided the appellate tribunal can be confident that the correct legal questions were addressed and the reasoning is sufficiently explained.

In a direct discrimination claim, the tribunal must identify why the claimant was treated as she was and determine whether the respondent has established a wholly non-discriminatory explanation. Conscious racial motivation is unnecessary. In an indirect discrimination claim, the claimant must establish the alleged provision, criterion or practice and the relevant disadvantage before justification arises.

The claimant applied for two Neighbourhood Enforcement Officer posts with the respondent local authority. She alleged that the respondent favoured internal candidates, causing indirect race discrimination, and that her applications had been rejected because of race or favouritism towards another candidate, amounting to direct discrimination.

After a five-day hearing, the Employment Tribunal dismissed both claims. It found no practice favouring internal candidates and accepted the panel’s evidence that the claimant was not shortlisted for one post because her application did not demonstrate the required criteria, and was unsuccessful for the other because she genuinely obtained the lowest interview score.

The claimant appealed, alleging inadequate reasons and errors concerning the burden of proof, motive, questionnaire evidence and adverse inferences.

1. Appeal dismissed. The Employment Tribunal’s reasons were not a model of clarity, but the EAT was satisfied that the tribunal had asked itself the correct legal questions and had sufficiently explained why the claims failed. Appellate review is concerned with substance, not examination of style.

2. The indirect discrimination claim failed because the claimant did not establish the alleged provision, criterion or practice of preferring internal candidates. Even if such a practice had been established, that alone would not demonstrate adverse impact on the claimant’s racial group.

3. The tribunal’s substitution of “should” for “could” when describing the first stage of the burden of proof under section 54A of the Race Relations Act 1976 imposed an unwarranted additional burden. Nevertheless, the error did not affect the result. The tribunal had accepted the respondent’s non-discriminatory explanation, satisfying the second stage of the Igen approach.

4. The relevant question was why the claimant was treated as she was. The tribunal found that the full-time application did not establish the required competences and that the claimant genuinely scored lowest for the part-time post. Those findings supplied explanations wholly unconnected with race.

5. Direct discrimination does not require conscious racial motivation. Discrimination may be subconscious, and inferences may be drawn from primary facts or, where appropriate, from answers to a statutory questionnaire. The tribunal was not shown to have ignored that possibility, and its omission to discuss the questionnaire did not amount to an error of law in the circumstances.

• Employment Tribunal: dismissed the claimant’s direct and indirect race discrimination claims after a five-day hearing.
• Employment Appeal Tribunal: dismissed the appeal, holding that the tribunal’s reasoning was legally sufficient and that its findings supported rejection of both claims.