Ajayi v The Apuldram Centre

A claimant need not expressly state a personal belief that treatment was discriminatory before a tribunal may draw an inference of race discrimination. The question remains whether the primary facts support such an inference, including through comparison with a real or hypothetical comparator.

An appellate tribunal will not replace factual conclusions with its own. It may intervene only where the conclusion is perverse or otherwise discloses an error of law. A victimisation claim under section 2(1) of the Race Relations Act 1976 fails where the tribunal was entitled to find no evidence that the alleged detriment occurred for a protected reason.

The claimant, a black African part-time support worker, was summarily dismissed following misconduct allegations. The Employment Tribunal at Southampton held the dismissal unfair and wrongful, but dismissed her claims for direct race discrimination and victimisation.

She appealed, principally contending that the disciplinary allegation concerning hours worked, and the employer's interpretation of her written English, supported an inference of racial discrimination. She also alleged that her dismissal and dismissal without notice victimised her for reports concerning racially discriminatory comments by service users. The central issue was whether the Tribunal had erred in law or made perverse factual findings in dismissing those claims.

1. Appeal dismissed. The Tribunal was entitled to dismiss both the direct race discrimination and victimisation claims. No error of law or perverse finding was established.

2. The EAT rejected the submission that discrimination can be proved only if the alleged victim expressly says that they believed the treatment was discriminatory. An inference may arise from primary facts in the evidence, whether supplied by the claimant or elsewhere. The Tribunal could nevertheless take account of the absence of such evidence from the claimant herself.

3. The Tribunal had asked the correct comparative question. It found that a hypothetical white support worker against whom residents had made complaints would also have been investigated and potentially disciplined. That was a factual conclusion open to it. The asserted misinterpretation of the claimant's English did not, without more, justify an inference of race discrimination.

4. On victimisation, the EAT proceeded on the recorded concession that no facts were alleged within section 2(1)(a)-(d) of the Race Relations Act 1976. There was no evidence that the employer dismissed the claimant because it knew or suspected that she had done, or intended to do, a protected act. The Tribunal was entitled to reject the alternative case under the remaining words of section 2(1).

5. The Tribunal did not need separately to identify dismissal without notice once it had found no evidence connecting the alleged detriments with a protected reason. The EAT could not make fresh factual findings or revisit that conclusion without demonstrated perversity. Its tentative observation that the disciplinary policy was unlikely to prevent summary dismissal for any serious gross misconduct was unnecessary to the result.

• Employment Appeal Tribunal dismissed the claimant's appeal against the dismissal of her race discrimination and victimisation claims.
• Employment Tribunal, Southampton issued reasons sent to the parties on 16 February 2011. It upheld unfair and wrongful dismissal claims but dismissed the race discrimination and victimisation claims.