Bijlani v Stewart & Ors

For direct race discrimination, the question whether treatment was on racial grounds differs from the question whether it caused a detriment. A detriment is established by causation: the claimant need only show that a reasonable worker would or might regard the act as a disadvantage. The decision-maker’s intention is not an element of detriment.

Where the impugned act is not inherently racial, however, the tribunal must determine why it occurred. Motive or intention is then relevant to whether race was an effective, significant and non-trivial cause. A tribunal does not err by rejecting a suggested racial reason that depends on speculation rather than its findings read as a whole.

Dr Bijlani, a barrister and tenant in chambers, brought claims under the Race Relations Act 1976 and the Disability Discrimination Act 1995 against successive Heads of Chambers and the senior clerk. The Employment Tribunal dismissed all 32 complaints.

The Employment Appeal Tribunal permitted a full appeal only in respect of Complaints 8, 9 and 10. Those complaints concerned the handling of racist incidents involving clerks, equal-opportunities arrangements, and the allocation of those clerks to Dr Bijlani. The central issues were whether the matters caused a detriment and whether the relevant decisions, especially the decision not to dismiss two clerks in 2000, were taken on racial grounds.

1. Appeal dismissed. The Employment Tribunal did not err in dismissing Complaints 8, 9 and 10 because it was entitled to find that the impugned actions were not taken on grounds of race.

2. The Tribunal had erred in its approach to detriment under section 26A(2)(d) of the Race Relations Act 1976. Detriment is a question of causation. It does not require a factor operating in the decision-maker’s mind that relates to the claimant or to a defined group of which the claimant is a member. Nor was it correct to treat an effect described as “some impact” as necessarily insufficient. The applicable question was whether, by reason of the acts complained of, a reasonable worker would or might view herself as disadvantaged, consistently with De Souza and Shamoon.

3. That error did not affect the result. The Tribunal had separately considered why the decisions were made and was entitled to conclude that race was not a cause. The decisions were not found to have been taken on an inherently racial ground. In that situation, the Tribunal was entitled to consider the decision-makers’ reasons, applying the distinction explained in R (E) v Governing Body of JFS [2010] 2 AC 728.

4. The finding that the Executive Committee was motivated in part by a wish to avoid the practical business loss of good clerks did not leave open an unexpressed racial reason. Read with the Tribunal’s findings as a whole, the other reasons included the wishes of the affected employee, the proposed sanctions and training, and the absence of significant dissent. It would have been speculation to infer that the decision not to dismiss was motivated by fear that chambers would be identified as harbouring racists.

5. The Tribunal was also entitled to reject the allegations concerning the 2004 and 2006 incidents, equal-opportunities arrangements, and clerking allocations. Shortcomings in diversity practice or a concern for the reputation and management of the clerks’ room did not, on the findings, establish that the actions were taken on racial grounds. The harassment provision in section 3A had not come into force when the 2000 incident occurred.

• Employment Appeal Tribunal: Appeal dismissed. The Tribunal upheld the dismissal of Complaints 8, 9 and 10, while identifying an error in the Employment Tribunal’s approach to detriment.

• Court of Appeal: Permission to appeal was refused in respect of the remaining grounds which had not proceeded to a full Employment Appeal Tribunal hearing.

• Employment Tribunal: Claims under the Race Relations Act 1976 and the Disability Discrimination Act 1995 were dismissed in a judgment sent to the parties on 3 March 2010.