Kabemba v ISS Eaton Ltd & Anor

An Employment Tribunal must consider the overall factual picture when deciding whether an inference of direct racial discrimination may properly be drawn. A fragmented examination of individual allegations is an error of law.

However, an appellate tribunal may dismiss the appeal despite that error where all necessary primary facts have been found and, viewed cumulatively, they establish a non-discriminatory explanation. Poor, unreasonable or incompetent management does not of itself constitute unlawful discrimination. Direct discrimination may be unconscious; conscious racial motivation is not required.

The claimant, a black man of African origin, brought complaints of racial discrimination and constructive unfair dismissal against his employers. The London Central Employment Tribunal dismissed both claims in reasons dated 14 July 2011.

At a preliminary hearing, the appeal was allowed to proceed only on whether the Tribunal had considered the totality of the facts rather than each allegation separately when determining the discrimination complaint. The constructive-dismissal appeal was not pursued. The central issue was whether the Tribunal's fragmented approach required the discrimination claim to be remitted or whether the Employment Appeal Tribunal could determine the appeal itself.

1. Appeal dismissed. The Employment Tribunal's reasons did not plainly show that it had stood back and considered the overall picture created by its factual findings. Its apparently fragmented treatment of the allegations was therefore an error of law.
2. That error did not require remission. Unlike the position in Anya, the Tribunal had made all necessary primary findings. Those findings favoured the respondents on the conduct allegations.
3. On the grievance process, the Tribunal found that the treatment resulted from poor management and had nothing to do with race. Looking at the factual matrix as a whole and asking the reason-why question identified in Shamoon, the Employment Appeal Tribunal held that the explanation was wholly untainted by race.
4. Accordingly, even if the claimant satisfied the first stage of the Igen v Wong burden-of-proof approach, the respondents established at the second stage that their conduct was not because of race. Unreasonable or incompetent management behaviour alone does not amount to unlawful discrimination: Glasgow City Council v Zafar.
5. The Tribunal had unnecessarily referred to racial motivation. Direct racial discrimination may be unconscious or subconscious, so proof of conscious motivation is not required. Since all primary facts were found, the Employment Appeal Tribunal determined the point itself rather than prolonging the proceedings by a remission, following the approach in Bournemouth University Higher Education Corporation v Buckland.

• Employment Appeal Tribunal: appeal dismissed. Although the Employment Tribunal made an error of law by failing expressly to consider the cumulative factual picture, its dismissal of the direct race-discrimination complaint was upheld.
• London Central Employment Tribunal: dismissed the claimant's racial-discrimination and constructive-unfair-dismissal claims by reasons dated 14 July 2011.