Khan v Royal Mail Group & Ors (Race Discrimination)

An appeal on a point of law cannot challenge an Employment Tribunal’s permissible findings of fact merely because the appellant prefers a different view of the evidence. A discrimination claimant must prove facts capable of supporting an inference of discrimination; a difference in protected status and treatment alone is insufficient to shift the burden of proof under section 54A.

Reasons need not be elegantly drafted, but read as a whole they must clearly explain why the claim failed. A muddled statement of the burden of proof will not establish an error of law where the findings plainly show that the tribunal accepted a non-discriminatory explanation or rejected the facts necessary to found discrimination.

The claimant, a Pakistani-born Revenue and Credit Control Manager employed by Royal Mail, brought claims of race and religion discrimination, harassment, victimisation, unpaid wages and holiday pay. The Employment Tribunal extended time, heard the case over ten days, and dismissed all claims in reasons sent on 15 September 2011.

On appeal, the claimant pursued eleven allegations. He contended that the Tribunal had made factual errors, failed to apply the shifting burden of proof, and given inadequate reasons. The central issue was whether the Tribunal’s findings and reasoning disclosed an error of law.

1. Appeal dismissed. The Employment Tribunal’s reasoning was at times muddled, particularly because it did not expressly direct itself to section 54A of the Race Relations Act 1976 or the equivalent religion-or-belief provisions. Read fairly and as a whole, however, its reasons adequately explained why each allegation failed.
2. The Appeal Tribunal cannot revisit factual findings merely because the appellant considers his evidence stronger. Intervention is confined to findings with no evidential basis, a material misconception of fact, or a conclusion that is perverse.
3. The burden of proof does not shift merely because a claimant has a protected status and has been treated differently. There must be further facts from which discrimination could properly be inferred. In relation to the comments about cultural differences, the Tribunal had accepted the respondents’ genuine explanation that the remarks were unrelated to race or religion. That finding discharged any burden which might have shifted.
4. In relation to the question concerning women, the Tribunal rejected the claimant’s evidence that the speaker referred to “white women”. The remaining words were not inherently discriminatory. In the pleaded context, the finding as to the speaker’s intent was decisive and there was no sufficient factual basis for an inference of race or religion discrimination.
5. Discrimination does not generally require a conscious intention to discriminate. It may arise despite good motives, subconsciously, or through an inherently discriminatory criterion. But the Tribunal was entitled on the facts to conclude that the impugned words and restructuring decisions were not caused by race, religion or prior protected acts.
6. The other complaints depended on factual assertions which the Tribunal was entitled to reject, including alleged involvement in assessments, admissions of unfair treatment, appropriate comparators, and alleged victimisation. The victimisation burden-shifting provision did not apply.

• Employment Appeal Tribunal: dismissed the claimant’s appeal and upheld the Employment Tribunal’s dismissal of the claims.
• Employment Tribunal: extended time on a just-and-equitable basis, then dismissed claims of race and religion discrimination, harassment, unpaid wages and holiday pay in reasons sent on 15 September 2011.