Elegbede v Nexen Petroleum UK Ltd

Victimisation requires less favourable treatment because the claimant carried out a protected act. The statutory protection does not apply where the relevant allegation was false and not made in good faith, even if less favourable treatment is established. A comparator must be a person who had not carried out the protected acts and had engaged in similar misconduct. A difference in status and treatment alone does not shift the burden of proof. The claimant must establish facts from which discrimination could properly be inferred.

The claimant, a black Nigerian petrophysicist, appealed against an Employment Tribunal decision dismissing claims of race and sex discrimination, victimisation and unfair dismissal. The Tribunal found that a disciplinary letter had referred adversely to one complaint which had not been the subject of a formal grievance, amounting to less favourable treatment for victimisation purposes. It nevertheless found that the underlying allegation was false and made in bad faith. The claimant also argued that his protected acts had contributed to his dismissal and that other matters constituted less favourable treatment.

The appeal concerned whether the Tribunal had properly applied the statutory victimisation provisions and the reverse burden of proof.

1. Appeal dismissed. The claimant’s argument that the Tribunal had found three separate instances of less favourable treatment was based on a false reading of its reasoning. The Tribunal had identified only one limited instance: the adverse comment in the disciplinary letter about the complaint concerning the Friday software meeting.
2. The Tribunal was required to conclude that the victimisation claims failed. Although the reference and adverse comment amounted to less favourable treatment, the underlying allegation was found to be false and not made in good faith. The exclusion in section 2(2) of the Race Relations Act 1976 and section 4(2) of the Sex Discrimination Act 1975 therefore applied.
3. For victimisation, the appropriate comparator is a person who had not carried out the protected acts but had been accused of similar misconduct. The comparator analysis did not establish liability where the statutory exclusion applied.
4. The Tribunal’s approach to the reverse burden of proof was sound. A difference in status and a difference in treatment do not by themselves shift the burden. The facts must be such that the Tribunal could properly conclude that discrimination may have occurred. The guidance in Madarassy v Nomura International Plc [2007] IRLR 246 was particularly relevant.
5. The Tribunal had found, on accepted evidence, that the claimant’s dismissal resulted from aggressive and inappropriate conduct and a breakdown in working relationships, rather than from his protected acts. Those findings of fact could not be disturbed on appeal.
6. Arguments concerning an earlier warning, automatic unfair dismissal based on statutory dismissal procedures, and the resurrection of old grievances either fell outside the permitted ground of appeal or lacked factual foundation. The Tribunal’s observations that the reason for dismissal would not determine compliance with statutory dismissal procedures were, in any event, unnecessary to the result.

• Employment Tribunal, Watford — judgment registered on 22 January 2010; claims of sex and race discrimination and unfair dismissal dismissed.
• Employment Appeal Tribunal — appeal dismissed.