Ugiabe v Tower Hamlets Primary Care Trust

An appellate tribunal may not interfere merely because it would have drawn different inferences from the evidence. It may intervene where an inference of discrimination lacks evidential support, but not where the Employment Tribunal was entitled to draw that inference from the primary facts and its assessment of the witnesses.

On a remitted discrimination claim, the tribunal must decide whether the employer's explanation for the dismissal or treatment was discriminatory. It need not attach a definitive label to the non-discriminatory reason if its findings establish that the explanation was genuine. The tribunal may assess the evidence as a whole and may use findings about a witness's conduct in one connected context when evaluating another allegation.

The Claimant brought claims of unfair dismissal and direct race discrimination against his former employer. An earlier Employment Tribunal found his dismissal unfair and upheld part of the race discrimination claim. On the employer's earlier appeal, the discrimination findings were remitted for rehearing by a differently constituted tribunal; the unfair-dismissal finding was not reopened.

At the remitted hearing, the Employment Tribunal upheld two allegations concerning the Medical Director's remarks and conduct, but rejected the allegation that the dismissal was racially discriminatory. Both parties appealed. The Claimant challenged the rejection of his dismissal claim and sought to rely on further material. The Respondent challenged the evidential basis for the successful allegations concerning the Medical Director.

1. Both appeals were dismissed. The Employment Tribunal had correctly addressed the remitted issue: whether the Respondent's treatment of the Claimant, including the explanation for his dismissal, was direct race discrimination. The earlier determination that there had been a dismissal remained binding, but the earlier finding that it was racially discriminatory had been set aside.

2. The Employment Tribunal was entitled to find that the Respondent's explanation for the dismissal was genuine and non-discriminatory. It was not required to decide whether the explanation was technically redundancy or another reason arising from reorganisation. Its task was to establish why the dismissal occurred and whether race played any part. Its findings were supported by the evidence and were not perverse.

3. The Claimant's proposed fresh evidence could not be admitted. He had not pursued the prescribed route of seeking a review by the Employment Tribunal. In any event, the material would not have affected the findings concerning the December 2006 meeting or the negotiations about the end of his employment. The attempted late expansion of the grounds to allege that Dr Russell influenced the dismissal was also refused; the material examined supported the Employment Tribunal's finding that he was not involved.

4. The Respondent had not shown that the successful findings of discrimination against Dr Russell were unsupported. Applying the approach discussed in Effa v Alexandra Health Care NHS Trust, an appellate tribunal cannot substitute its view where different inferences were reasonably open. The Employment Tribunal could infer from Dr Russell's changed evidence, disparaging conduct and its assessment of him that he was concealing discriminatory behaviour.

5. The Employment Tribunal did not determine an unpleaded complaint concerning the public announcement that another employee would take over the Claimant's work. The difference between feeling undermined and upset was one of degree. It was entitled to consider its findings concerning Dr Russell's conduct in the wider factual assessment.

• Employment Appeal Tribunal: The Claimant's appeal and the Respondent's cross-appeal from the remitted Employment Tribunal judgment were dismissed.
• Earlier Employment Appeal Tribunal: The Respondent's appeal against earlier race-discrimination findings succeeded to the extent that those complaints were remitted for rehearing by a differently constituted Employment Tribunal. The unfair-dismissal finding was not reopened.
• Employment Tribunal: The original tribunal found the dismissal unfair and upheld part of the Claimant's race-discrimination case. The remitted tribunal upheld two allegations of direct race discrimination but rejected the discriminatory-dismissal allegation.