City Index Ltd v Kurt (Race Discrimination : Direct)

An employment tribunal must make a coherent link between its factual findings, the applicable law and its conclusions on each allegation of discrimination or harassment. Generic introductory words will not cure a failure to explain how the evidence establishes liability. Closely related allegations may be considered together, but the tribunal must still identify the issues and explain how the relevant facts satisfy the legal tests. Where inadequate reasons prevent proper appellate scrutiny, the appeal should be allowed and the affected allegations remitted for rehearing.

An employee brought claims of race discrimination, victimisation and harassment arising from her employment. After a six-day hearing, the Employment Tribunal rejected or excluded most of 24 allegations but upheld five allegations against her manager, finding direct discrimination and harassment.

The employer appealed, alleging misdirection, perversity, an unsustainable conclusion and inadequate reasons. The central issue was whether the tribunal’s findings of fact and short conclusions sufficiently explained how each of the five allegations amounted to discrimination or harassment.

1. The appeal was allowed unanimously. The Employment Tribunal’s judgment could not sustain its orders because its findings of fact, reasoning and conclusions did not form a coherent whole.
2. The tribunal had identified the correct legal provisions, and its self-directions were not criticised. The error lay in the application of law to facts. Under Employment Tribunals Rules of Procedure, rule 30(6)(e), the reasons had to explain how the relevant factual findings and applicable law were applied to determine the issues.
3. In a case involving multiple allegations, it was not invariably necessary to analyse every allegation separately. Closely related allegations could sensibly be treated together. However, the tribunal still had to explain how each allegation, or each properly identified group of allegations, satisfied the requirements for discrimination or harassment.
4. The tribunal’s omnibus statement that it had considered the relevant findings and applied the law was insufficient. It failed, among other things, to address mismatches between the pleaded case and the case decided, the significance of adverse credibility findings on most allegations, the distinction between ignoring a complaint and taking inadequate action, the basis for treating a remark not directed at the claimant as direct discrimination, the manager’s evidence and motivation, and submissions that the conduct was minimal.
5. The EAT declined to determine the merits itself. The issues were fact-sensitive and sensitive, and the proper forum for the necessary findings and evaluation was an Employment Tribunal. The five upheld allegations were remitted for reconsideration by a differently constituted tribunal.

• Employment Appeal Tribunal: allowed the employer’s appeal against the Employment Tribunal’s decision and remitted allegations 7, 8, 11, 20 and 22.
• Employment Tribunal, London Central: following a six-day hearing, its August 2010 judgment excluded four allegations as out of time, rejected 15 further allegations and upheld five allegations of race discrimination and harassment.