ISS Mediclean Ltd v Elkiyari

For direct race discrimination, the employer’s belief that misconduct occurred may explain the dismissal under Employment Rights Act 1996, section 98, while the dismissal may also constitute less favourable treatment on racial grounds under the Race Relations Act 1976. Those inquiries are not invariably identical.

However, a difference in national origin and a difference in treatment, without more, do not necessarily shift the burden of proof. The tribunal must identify the wider factual context, including the reasons for the differential treatment and relevant comparators. Material evidence, such as a later dismissal in similar circumstances, must be addressed or its omission explained.

Mr Elkiyari, of Moroccan origin, was summarily dismissed after admitting that he had eaten garlic bread at work. The Employment Tribunal found the dismissal unfair and discriminatory, relying on the fact that employees of Portuguese and Sri Lankan origin had eaten food without authority but had not been dismissed.

ISS Mediclean appealed only against the race-discrimination finding. It argued that the tribunal had identified misconduct as the reason for dismissal and that the difference in treatment and national origin was insufficient to reverse the burden of proof. The central issues were whether both analyses could coexist and whether the tribunal had adequately explained its burden-of-proof conclusion.

1. Appeal allowed and matter remitted. The Employment Tribunal had erred in treating the difference in treatment and difference in national origin, by themselves, as sufficient to trigger the reverse burden of proof. The Tribunal had to reconsider whether the factual material, beyond those bare differences, justified that conclusion.
2. The reason for dismissal under section 98(1) of the Employment Rights Act 1996 and the reason for less favourable treatment under section 1(1)(a) of the Race Relations Act 1976 are distinct statutory inquiries. A reasonable belief in misconduct may be the reason for dismissal, while the decision to dismiss a person of a particular national origin for that conduct may also be less favourable treatment on racial grounds. Chamberlain v Emokpae was distinguishable because its facts were materially different.
3. The tribunal should separate, where necessary, the evidence relevant to a misconduct dismissal from evidence relevant to whether the impugned conduct actually occurred and whether discrimination took place. The distinction identified in North London Ambulance Service v Small was material.
4. The Tribunal’s reasoning did not set out the broader context relied upon by the respondent, including the evidence that an Italian employee was later dismissed for eating food on the premises. That issue had sufficient potential relevance to the burden of proof and the ultimate discrimination finding. It required a finding or an explanation for not determining it, consistent with rule 30(6) of the Employment Tribunal Rules.
5. The Employment Appeal Tribunal could not determine the issue itself without usurping the Employment Tribunal’s fact-finding function. The race-discrimination issue was therefore remitted for reconsideration.

• Employment Appeal Tribunal: allowed the appeal against the race-discrimination finding and remitted that issue to the Employment Tribunal for further consideration.
• Employment Tribunal: found the dismissal unfair and racially discriminatory. Its written Reasons were sent on 5 February 2010.