Transport for London & Anor v Aderemi

In a direct discrimination claim, an Employment Tribunal must first identify and establish less favourable treatment as a comparative matter. Only then does it consider whether the treatment was on racial grounds and whether the burden of proof has shifted. Evidence relevant to racial motivation must not be treated as proof that the treatment occurred.

A hypothetical comparator must have the material characteristics relevant to the alleged treatment. Evidence concerning unsuitable real comparators may assist in constructing that comparator, but cannot replace the required comparison. A broad finding of institutional racism requires clear reasoning showing how primary facts support an inductive conclusion about organisational practices or culture.

The Respondent, a black African employee of Transport for London, complained that his career progression and promotion had been obstructed and that he had been treated less favourably than other managers. He also alleged victimisation after making a race-discrimination grievance, based on Transport for London’s refusal temporarily to relocate him.

An Employment Tribunal upheld claims of direct race discrimination against Transport for London and Mr McGill, and victimisation against Transport for London. The Appellants challenged the Tribunal’s application of the burden of proof, its use of comparators, and its finding of institutional racism. The central issues were whether less favourable treatment had first been established and whether the inferences drawn from the evidence were sound.

1. Appeal allowed. The Employment Tribunal’s findings of direct discrimination and victimisation were set aside. The case was remitted to a differently constituted Employment Tribunal for a complete rehearing.
2. In a discrimination case, the starting point is less favourable treatment. This requires identification of the treatment and a comparison with an actual or hypothetical comparator. The Tribunal must find that the alleged discriminator treated the claimant less favourably; it is insufficient that the facts are merely capable of supporting a conclusion that this occurred. The phrase “from which it could conclude” at paragraph 45 of the Tribunal’s reasons showed the conflation identified in Igen v Wong [2005] ICR 93.
3. Where a hypothetical comparator is used, its relevant characteristics must be identified. Evidence concerning real persons who are not appropriate comparators may assist in constructing the hypothetical comparator, as explained in Chief Constable of West Yorkshire v Vento [2001] IRLR 124, but cannot itself establish the comparison or be used as a substitute for it. The Tribunal had relied on evidence concerning Band 2-to-Band 3 progression when the relevant issue was promotion from Band 3 to Band 4.
4. As against Mr McGill, the Tribunal had not established that he had delayed or obstructed promotion. It therefore wrongly required him to prove both that he had not acted on racial grounds and that he had not committed the alleged act. The finding was unsound. The evidence might have supported a racial inference if less favourable treatment had first been established.
5. As against Transport for London, there was an evidential basis for a finding of less favourable treatment concerning the halted job evaluation. However, the conclusion that this was because of race relied substantially on the finding of institutional, unconscious attitudinal racism. The limited individual incidents identified could not justify an inductive conclusion about organisational culture. The reasoning also involved double counting, because the same material was used both to infer discrimination and to support the existence of institutional racism. This reasoning was inconsistent with Commissioners of Inland Revenue v Morgan [2002] IRLR 776.
6. The victimisation finding was also unsafe because the Tribunal expressly relied on the flawed institutional-racism finding when drawing the inference about the refusal to relocate.
7. Having regard to the factors in Sinclair Roche and Temperley v Heard [2004] IRLR 763, a complete rehearing before a differently constituted Tribunal was appropriate.

• Employment Appeal Tribunal: Allowed the appeal from the Employment Tribunal’s decision and remitted the claims to a differently constituted Tribunal for a complete rehearing.
• Employment Tribunal: Found direct race discrimination by Transport for London and Mr McGill, and victimisation by Transport for London. Other victimisation allegations and an unlawful-deductions claim were dismissed.