Birmingham City Council v Millwood (Race Discrimination : Inferring discrimination)

A difference in racial status and less favourable treatment do not, without more, permit an inference of direct discrimination or shift the statutory burden of proof. The tribunal must identify the additional facts from which discrimination could properly be inferred.

At the first stage, it may consider all relevant evidence, including evidence and reasons advanced by the employer. It must, however, leave out only the statutory assumption concerning the absence of an adequate explanation. Several inconsistent explanations which the tribunal disbelieves may, with the protected-status difference and detriment, justify a shift in the burden. The adequacy of an explanation alone was not decided.

The claimant, a Black British family support worker, was not given a written permanent contract. An Asian colleague, found to be in materially similar circumstances, received one. The Employment Tribunal upheld the claimant’s complaint of direct race discrimination.

The employer and the headteacher appealed. They challenged both the finding that the colleague was a valid comparator and the Tribunal’s conclusion that the burden of proof had shifted. The central issue was whether the Tribunal had identified facts beyond racial difference and disadvantage which could support an inference of discrimination.

1. Appeal allowed on the second ground. The Employment Tribunal was entitled to find that the claimant and comparator were in materially similar circumstances. Both had been teaching assistants, were appointed family support workers at the same time, and had not previously held that role. That evaluative conclusion was neither perverse nor based on a material factual misunderstanding.

2. Under section 54A of the Race Relations Act 1976, the inquiry is logically in two stages. In deciding whether the burden shifts, a tribunal may consider all relevant evidence, including evidence which rebuts the claimant’s case and evidence bearing on the reason for differential treatment. It must not take account of the statutory absence of an adequate explanation at that stage.

3. The bare facts of racial difference and less favourable treatment establish only a possibility of discrimination. They are insufficient without further material. However, where an employer has offered several inconsistent explanations which the tribunal disbelieves, that may be sufficient additional material to justify an inference and shift the burden. The Court did not decide whether an explanation which is merely inadequate, rather than disbelieved, could have that effect.

4. The Tribunal had not clearly identified its “something more”. Its reasoning could mean that it relied only on racial difference and detriment, or that it relied on rejected explanations. It also found discrimination by the governing body while saying that it did not know why that body had acted. The Court could not be confident that the statutory test had been applied lawfully.

5. The discrimination finding was therefore set aside and the issue remitted to the same Employment Tribunal. It was to determine the issue on the evidence already heard, after further submissions and by applying the stated legal principles.

• Employment Appeal Tribunal: allowed the employer’s appeal on the burden-of-proof ground, dismissed the comparator ground, and remitted the direct race-discrimination issue to the same Employment Tribunal.

• Employment Tribunal, Birmingham: upheld the claimant’s complaint of direct race discrimination concerning the absence of a permanent written family support worker contract.