Central Manchester University Hospitals NHS Foundation Trust v Browne

In a direct discrimination claim, a tribunal may infer discrimination only from the whole evidential picture. A difference in status and treatment alone is insufficient, but comparative treatment, statistics, an employer’s response to those statistics, and its response to a discrimination grievance may together justify shifting the burden of proof.

A hypothetical comparator must share the material circumstances. The tribunal may use the treatment of persons in non-identical but comparable situations to determine how that comparator would have been treated. The comparator inquiry and the reason for treatment may properly overlap.

For victimisation, a protected act need not be the sole cause. It is sufficient that it was a significant influence on the adverse treatment.

The Employment Tribunal upheld the respondent’s claims of direct race discrimination and victimisation under the Race Relations Act 1976. It had also found that he was unfairly and wrongfully dismissed, findings which were not challenged on appeal.

The Trust appealed, contending that the Tribunal had wrongly constructed a hypothetical comparator, had not properly found that treatment was on racial grounds, and had given insufficient reasons for victimisation. The Tribunal had found markedly different treatment from that of white divisional directors, adverse dismissal statistics affecting black employees, an inadequate employer response, and a sham disciplinary process following the respondent’s race-discrimination grievance.

The central issues were whether those findings permitted the inferences of direct discrimination and victimisation.

1. Appeal dismissed. The Employment Tribunal made careful primary findings which entitled it to uphold both claims. There was no error of law in its reasoning.

2. On direct discrimination, the Tribunal correctly used the two-stage burden-of-proof approach. At the first stage it was entitled to consider all the evidence. The markedly different treatment of white divisional directors, the dismissal statistics, the Trust’s unsupported response to those statistics, and its response to the race-discrimination grievance could properly support an inference that colour was a reason for the treatment. The Trust did not challenge the Tribunal’s rejection at the second stage of its explanations.

3. The hypothetical-comparator analysis was lawful. The Tribunal identified a comparator with genuine performance and capability concerns. It could use the treatment of other divisional directors in non-identical but comparable circumstances as evidence of how that comparator would have been treated. The questions whether a hypothetical comparator would have been treated differently and why the claimant was treated as he was were intertwined. Read as a whole, the Tribunal did not shift the burden merely because the treatment was unreasonable; it relied on the additional racial factors.

4. On victimisation, the Tribunal identified the proper comparator as a person who had not done the protected act. Although there were genuine capability concerns, it was entitled to find that the protected act was a significant influence on the outcome. The immediate instigation of disciplinary action after the grievance, the sham and predetermined process, the absence of an honest belief in the stated grounds for dismissal, and the hostile response to the grievances supported that inference.

5. The reasons were adequate. They enabled the Trust to understand why it had lost and disclosed no perversity or other error of law.

• Employment Appeal Tribunal: Appeal dismissed. The Tribunal’s findings of direct race discrimination and victimisation were upheld.
• Employment Tribunal, Manchester: Reserved judgment and reasons sent to the parties on 14 March 2011. The claims of direct race discrimination and victimisation were upheld; the respondent was also found unfairly and wrongfully dismissed.