Komeng v Sandwell Metropolitan Borough Council

An employment tribunal must address each distinct discrimination complaint, make findings on the relevant evidence and comparators, and explain how those findings lead to its conclusions. It is insufficient to deal compendiously with different forms of training where they involved different providers, procedures or alleged delays. In a race discrimination claim, the tribunal must assess the actual or hypothetical comparator under the statutory requirement that the relevant circumstances are the same or not materially different. In a part-time worker claim, it must consider whether the proposed comparator is a comparable full-time worker. General administrative inefficiency may explain less favourable treatment, but tribunals should examine carefully whether it masks disadvantage on a prohibited ground. Failure to do so constitutes an error of law requiring remission.

The claimant, a part-time care assistant employed by Sandwell Metropolitan Borough Council, brought complaints of race discrimination and less favourable treatment because of part-time status. The Employment Tribunal rejected complaints concerning training, supervision and a reference in its judgment dated 11 May 2010.

Permission to appeal was limited to the adequacy of the tribunal’s reasoning on training, particularly the alleged failure to enrol the claimant promptly on an NVQ Level 2 care course. The claimant relied on two named comparators and alleged repeated requests between 2006 and 2009. The central issue was whether the tribunal had addressed that specific complaint, the comparator evidence and the statutory burden-of-proof tests.

1. Appeal allowed. The Employment Tribunal’s reasoning did not adequately determine the claimant’s training complaints. The whole issue of training was remitted to a fresh tribunal for rehearing. The decisions on all other issues stood.
2. The tribunal had to explain why the parties had won or lost, with sufficient findings of fact and reasoning to enable an appellate court to see whether the law had been correctly applied. In discrimination cases, it was particularly important to follow the factual findings through to a reasoned conclusion, as explained in Anya v University of Oxford [2001] IRLR 377 and Tran v Greenwich Vietnam Community [2002] IRLR 735.
3. The tribunal had treated mandatory training, other training and the NVQ course compendiously, although the NVQ applications went to a different provider and involved different considerations. Its findings on the alleged June 2007 application were unexplained, and it made no findings on the claimant’s later requests or the reasons for the manager’s inaction.
4. The tribunal had failed to examine the similarities and differences between the claimant and his named comparators, particularly Ms Sharp, who was also a care assistant supervised by the same manager and obtained a prompt response to her request. Other employees’ difficulties could be considered, but could not replace findings on the claimant’s identified comparators.
5. A tribunal should scrutinise an explanation based on general poor administration. Administrative inefficiency may conceal disadvantage to a particular individual or group on prohibited grounds. The question whether the named comparators were comparable full-time workers under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 was left for the fresh tribunal.

• Employment Appeal Tribunal: allowed the appeal on the training issue and remitted the whole issue of training to a fresh tribunal. The remaining parts of the Employment Tribunal’s judgment stood.
• Employment Tribunal: by judgment dated 11 May 2010, rejected the claimant’s complaints of race and part-time status discrimination.