Stevenson v Atos Origin IT Services UK Ltd

A discrimination complaint concerning an overseas post falls outside section 4 of the Race Relations Act 1976 where the post requires residence outside Great Britain and its work is not for the purposes of the respondent's business at a British establishment. A tribunal's conclusion may nevertheless stand where any deficiency in its reasoning does not affect a conclusion that is plainly and unarguably correct.

In any event, an employment tribunal may determine direct discrimination by asking the real reason for the treatment; it is not obliged to adopt a rigid two-stage burden-of-proof analysis. Agency requires authority to act on another's behalf. Liability for aiding an unlawful act requires knowing assistance of an act made unlawful by the Act.

The appellant, a British employee of the respondent, was assigned from September 2008 to a group role concerning smaller European, Mediterranean and African operations. He later acted as interim CEO of EMA. Following a group reorganisation, the permanent EMA CEO post was given to a German national, and the appellant was subsequently made redundant.

The Employment Tribunal at London Central held on 10 February 2011 that it lacked territorial jurisdiction over his complaint that the non-appointment was direct discrimination on grounds of nationality. It also rejected the complaint on its merits if wrong on jurisdiction. The appellant appealed only that complaint. The central issue was whether the non-appointment concerned employment by the respondent at an establishment in Great Britain.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the appellant's EMA role was a temporary assignment, rather than a permanent appointment. The relevant complaint concerned his non-appointment to the subsequent permanent CEO role.
2. The permanent role required residence in an EMA country outside Great Britain. Its business was not for the purposes of the respondent's business at a British establishment. The refusal or omission to offer that role was therefore not in relation to employment by the respondent at an establishment in Great Britain for section 4 of the Race Relations Act 1976. The Tribunal consequently lacked jurisdiction over the complaint.
3. Although the Tribunal's jurisdiction reasoning focused principally on the appellant's earlier work in EMA, its factual findings applied equally to the permanent post. Any deficiency did not affect a conclusion that was plainly and unarguably right: Dobie v Burns International Security Services (UK) Ltd [1984] IRLR 329.
4. In any event, the Tribunal was entitled to reject the merits. It could use the “reason why” approach and was not required to set out a two-stage burden-of-proof analysis. It found that the appellant was not considered because of his global “manage out” appraisal rating, not nationality. Its findings were supported by cogent evidence.
5. The respondent had neither power nor involvement in the permanent appointment. The group decision-makers were not its agents. Nor could the respondent knowingly aid and abet an unlawful appointment where no unlawful act by a person amenable to a claim under the Act had been established.
6. The challenged relocation finding had evidential support. Delay in issuing reasons did not itself establish legal error, and none of the Tribunal's material findings was arguably perverse.

• Employment Appeal Tribunal: Appeal dismissed in [2012] UKEAT 0213_11_0404. The Tribunal upheld the Employment Tribunal's conclusion that it lacked jurisdiction over the complaint and, alternatively, upheld its merits conclusions.
• Employment Tribunal, London Central: On 10 February 2011, held that it had no jurisdiction over the disputed race-discrimination complaint and rejected it on the merits in the alternative. No citation was stated in the judgment.