Bouzir v Country Style Foods Ltd

In a direct race-discrimination claim, a tribunal must apply the statutory burden of proof in Race Relations Act 1976, section 54A(2). It must assess the claimant’s facts cumulatively and decide whether, absent an adequate explanation, discrimination could be inferred. Failures to answer a questionnaire or disclose relevant documents do not automatically establish discrimination, but may materially support an inference where they bear on the reason for the impugned act. General evidence that an employer recruits people of varied nationalities does not replace analysis of the particular decision. Where the tribunal has failed to make material primary findings or apply the burden-shifting exercise, the Employment Appeal Tribunal should ordinarily remit the claim for rehearing rather than substitute its own findings.

Mr Bouzir, an Algerian applicant for employment at a bakery operated by Country Style Foods Ltd, appealed against the Employment Tribunal’s dismissal of his direct race-discrimination claim. The Tribunal had upheld his wife’s religious-discrimination claim arising from the same recruitment exercise but dismissed his race claim, reasoning that there was insufficient evidence connecting the non-offer to his Algerian citizenship.

The appeal concerned whether the Tribunal had properly addressed section 54A(2) of the Race Relations Act 1976, including the cumulative effect of the employer’s conduct, its failure to answer a detailed questionnaire, and its failure to disclose recruitment documents.

1. Appeal allowed. The Tribunal had referred to the burden-of-proof provisions in its general statement of law but had not properly applied section 54A(2) of the Race Relations Act 1976 in deciding the race claim.
2. The claimant’s case included the incomplete interview, the failure to notify him that he had not been selected, the apparent racial composition of those inducted, the employer’s failure to answer a detailed questionnaire, and an inaccurate explanation for the refusal of employment. Taken together, those matters were capable of enabling the Tribunal to conclude, in the absence of an adequate explanation, that the Respondent had refused or deliberately omitted to offer employment on racial grounds.
3. The Tribunal’s statement that there was insufficient evidence to show that the decision was related to race rather than some other reason failed to reflect the statutory burden-shifting exercise. Its reliance on the Respondent’s general policy of employing staff of many nationalities was relevant background but did not address the reason for the particular decision.
4. Failure to answer a questionnaire does not automatically require an inference of discrimination. Its significance must be assessed in the circumstances of the particular case, including whether it could bear on the reason for the act complained of and whether any explanation justifies an inference. The approach in De Silva v NATFHE was adopted.
5. The Employment Appeal Tribunal could not safely substitute its own findings because material primary facts had not been determined. The claim was remitted for rehearing before a freshly constituted Employment Tribunal.

The Tribunal’s observations concerning recruitment good practice and the Commission for Racial Equality Code of Practice were not necessary to the disposal of the appeal.

• Employment Tribunal: dismissed Mr Bouzir’s race-discrimination claim in a judgment dated 19 March 2010, while upholding Mrs Bouzir’s religious-discrimination claim.
• Employment Appeal Tribunal: allowed the appeal and remitted the claim for rehearing before a freshly constituted Tribunal.