Arhin v Enfield Primary Care Trust

In a direct race-discrimination claim, an employer may rely on a mistake as the reason for adverse treatment. The reason need not be morally or objectively justifiable, provided it is genuinely unrelated to race. A Tribunal must, however, identify the mistake clearly and examine it critically.

Where the dispute concerns selection for a reorganised post, the Tribunal must identify the work actually performed by each alleged comparator and the requirements of the new post. Without those findings, it cannot determine whether the treatment was less favourable or whether the employer’s explanation is logically coherent. Reasons must also enable the parties and an appellate court to understand the basis of the decision.

The Claimant, a black employee, was made redundant following a reorganisation which reduced four consultant posts to two. The Respondent selected a white comparator for one remaining post by slotting him in, without allowing the Claimant to compete.

The Employment Tribunal found that the Claimant had been unfairly dismissed because she had been denied a competitive selection exercise, but rejected her complaint of race discrimination. It concluded that the Respondent’s decision resulted from a mistake unrelated to race. The appeal concerned whether that conclusion was adequately reasoned and logically supported.

1. Appeal allowed. The Employment Tribunal’s reasons were inadequate and internally inconsistent. Although a mistake unrelated to race could constitute a sufficient explanation for less favourable treatment, the Tribunal had to identify what the mistake was, establish its relevance, and decide that it had nothing to do with race.
2. The Tribunal had not made the necessary findings about the Claimant’s actual work, the comparator’s actual work, or the work required by the new post. It had also failed to resolve whether the parties’ similar job descriptions reflected their practical duties. Without those findings, it could not determine whether the comparator was genuinely in a comparable situation or whether slotting-in was appropriate.
3. A mistake relied upon in a discrimination case requires close scrutiny. It should ordinarily be identified in the Respondent’s notice. Where it emerges only during evidence, the Tribunal may be suspicious, particularly if the employer persisted in the impugned conduct after being alerted to the alleged mistake. The Tribunal must ensure that mistake is not used as a cloak for discrimination.
4. The wider employment relationship may form relevant context, including subsequent conduct and other alleged discriminatory treatment. The Tribunal should consider such matters only so far as necessary to determine the issue.
5. The case was remitted to a fresh Employment Tribunal. The finding of unfair dismissal was settled and was not remitted. The race-discrimination issue was to be reconsidered, including comparability, the nature of the new post, and the reason for any less favourable treatment.

• Employment Appeal Tribunal: allowed the appeal against the Employment Tribunal’s rejection of the race-discrimination complaint and remitted that issue to a fresh Tribunal. The unfair-dismissal finding was left undisturbed.
• Employment Tribunal at Watford: reasons delivered on 23 January 2009; found unfair dismissal but rejected automatic dismissal and race discrimination.