Southern Cross Healthcare v Owolabi

Direct race discrimination may be established through a series of connected acts extending over a period. A racial insult may itself be race-specific, without requiring a conventional comparator. Comparators may be actual or hypothetical, provided the comparison is legally permissible and sufficiently similar. Differential treatment need not be racially motivated; ignorance, incompetence or lack of sensitivity may still result in discrimination where there is no adequate non-discriminatory explanation. Unreasonable conduct alone is insufficient, but it may support an inference of discrimination when assessed with all relevant circumstances. An Employment Tribunal need not address every evidential argument individually if its reasons sufficiently explain why one account was preferred. Appellate interference with factual findings requires a conclusion that no reasonable tribunal could have reached.

Southern Cross Healthcare appealed against findings of direct race discrimination made by an Employment Tribunal sitting at Newcastle-upon-Tyne. The Tribunal awarded compensation for injury to feelings, psychiatric injury and loss of earnings.

The appeal raised 15 grounds concerning pleading and jurisdiction, limitation, the continuing-act principle, comparators, detriment, adequacy of reasons, perversity, the inference of discrimination and compensation. The central issues were whether the complaints formed part of an act extending over a period and whether the Tribunal had properly applied the principles governing direct discrimination.

1. Appeal dismissed. None of the grounds of appeal succeeded.
2. The ET1 and further and better particulars were to be read together. They gave sufficient notice that the claim included later failures to investigate and failures to take the claimant’s complaints seriously. The Employment Tribunal therefore had jurisdiction to determine those matters.
3. The chimp incident and subsequent conduct could properly be treated as an act extending over a period. The Tribunal was entitled to view the events as a connected course of discriminatory conduct, so the complaints were in time under the principle in Hendricks v The Commissioner of Police for the Metropolis [2003] IRLR 95.
4. The Tribunal was entitled to treat a white person who had made similar complaints as an actual or hypothetical comparator. The word chimp, in the context found, was capable of being race-specific. The comparison between the seriousness of the claimant’s complaint and complaints made against him was not impermissible.
5. The Tribunal’s reasons for preferring the claimant’s evidence were adequate. Applying Meek v City of Birmingham District Council [1987] IRLR 250, it was unnecessary to address every argument individually where the reasons sufficiently explained the outcome.
6. The Tribunal did not infer discrimination from unreasonable conduct alone. It considered non-discriminatory factors, applied the burden-of-proof approach and was entitled to conclude that differential treatment lacked an adequate explanation. Direct discrimination does not require proof of racial motivation.
7. The findings concerning the monkey incident were reasonably open to the Tribunal. The high threshold for perversity, stated in Yeboah v Crofton [2002] IRLR 634, was not met. The Tribunal made no express finding that the claimant had been isolated by other staff, and no issue arose from that omission.

• Employment Tribunal, Newcastle-upon-Tyne: found direct race discrimination and awarded compensation. The written Judgment was sent to the parties on 29 November 2010.
• Employment Appeal Tribunal: dismissed Southern Cross Healthcare’s appeal.