Lewis v New College Oxford

An employment tribunal must determine the discrimination case actually advanced, including pleaded background matters capable of supporting an inference of discrimination. It must allow relevant questioning and address material evidence, including responses to statutory questionnaires. A tribunal must not substitute its own unsupported assumptions for evidence concerning racial stereotypes. Each member must approach the hearing with an open mind. If one member does not, the decision is tainted by apparent bias and material procedural irregularity and must be set aside.

The claimant appealed against an Employment Tribunal’s dismissal of claims arising from his dismissal on capability grounds. The claims included unfair dismissal, direct race discrimination and victimisation. The appeal raised alleged restrictions on questioning, failure to consider pleaded background matters and questionnaire responses, apparent racial stereotyping, and an apparent decision to conclude the hearing before all relevant evidence had been heard.

The Employment Appeal Tribunal considered affidavit evidence from the claimant, his representative and members of the original tribunal. The central issue was whether the conduct and reasoning of the tribunal created apparent bias or constituted material procedural irregularity.

1. Appeal allowed and case remitted. The original decision was set aside and the case was remitted to a new Employment Tribunal.
2. The tribunal had fundamentally misunderstood the case by treating it essentially as an unfair dismissal claim. The live claims included race discrimination and victimisation, and the pleaded background matters were capable of informing the question whether the dismissal was discriminatory.
3. The tribunal was required to deal with the claimant’s case on the evidence advanced. Relevant questioning should not be stopped merely because the tribunal considered the matters unpersuasive. If pleaded matters or questionnaire responses were considered irrelevant, that conclusion had to be stated and explained. Responses to statutory questionnaires could form the basis for inferences, whether or not an adverse inference was ultimately drawn.
4. The employment judge’s subsequent assertion that Black Caribbean men might have a more relaxed approach to life than other ethnic groups gave at least the appearance of a stereotypical view. In circumstances where evidence concerning stereotypes had been put forward, the judge should have considered that evidence rather than substituting his own view. The matter was properly characterised as apparent bias.
5. The tribunal also appeared to have formed a view before the respondent’s evidence was complete. Any decision on whether the burden of proof had shifted could only properly be made after the evidence and submissions had been completed. A claimant is entitled to a fair hearing before three members who each approach the case with an open mind. If one member fails that test, the decision must be set aside.

• Employment Appeal Tribunal: allowed the appeal against the Employment Tribunal’s judgment sent on 19 August 2010 and remitted the case to a new Employment Tribunal.