Cooperative Centrale Raiffeisen Boerenleenbank BA v Docker

In a direct race-discrimination claim, the reverse burden requires the claimant first to establish facts from which discrimination could be inferred. Difference in race and treatment alone is insufficient, but the tribunal may rely on the totality of its permissible findings. The employer must then prove a cogent, coherent non-discriminatory explanation arising from the evidence. The tribunal need not invent an explanation which the employer has not advanced. The “reason why” inquiry remains relevant, but must not displace the statutory burden.

The claimant, an English employee of a Dutch bank, challenged his dismissal and the failure to appoint him to a newly created Utrecht role. The Employment Tribunal upheld his complaint of direct race discrimination and also found unfair dismissal, although the latter finding was not appealed.

The bank appealed the discrimination finding, challenging the application of the two-stage burden, the hypothetical comparator, and several factual findings. It also challenged the tribunal’s treatment of the dismissal process for limitation and statutory-grievance purposes.

1. Appeal dismissed. The acts leading to dismissal formed part of the dismissal process. The jurisdictional objections therefore failed under Employment Act 2002, s 32.
2. Under Race Relations Act 1976, s 54A, stage 1 requires facts from which the tribunal could conclude, absent an adequate explanation, that discrimination occurred. Difference in race and treatment alone are insufficient; something more is required.
3. The tribunal was entitled to rely on the selection of another Dutch employee to remain in London and the increased number of Dutch department heads after reorganisation. Those findings supported the stage 1 inference against the hypothetical Dutch comparator.
4. At stage 2 the bank had to prove that it did not commit the discriminatory act. Its explanations were rejected as neither cogent nor coherent. The tribunal was entitled to reject the asserted unwillingness to relocate, the alleged superiority of the successful candidate, and the inconsistent account of advertising the Utrecht role.
5. The “reason why” question remains a permissible analytical tool, but it must be applied consistently with s 54A. The tribunal was not required to create a non-discriminatory explanation which was not advanced by the employer and did not arise from the evidence. Discrimination may be subconscious and need not be the sole effective cause.
6. The EAT would not retry factual issues where the tribunal had made findings open to it on the evidence. The appeal therefore failed and was dismissed.

• Employment Appeal Tribunal: Appeal against the Employment Tribunal’s finding of direct race discrimination dismissed. The Employment Tribunal decision was promulgated on 2 December 2009.