Riverside ECHG v Ubredi

Victimisation under the Race Relations Act 1976 requires a comparison between the treatment of the person who carried out a protected act and that of a person who did not. The tribunal must also identify, and explain the evidential basis for, the alleged victimiser’s reason for the treatment. A conclusion of less favourable treatment cannot stand where no comparator is identified and the finding on reason is unexplained.

An Employment Tribunal’s finding may be perverse where it overlooks grievance-outcome evidence and treats an irrelevant or separately withdrawn complaint as a failure to investigate the claimant’s own grievance. The approach in Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830 was affirmed.

The claimant, a support manager of black African origin, had previously brought race-discrimination proceedings and later raised grievances about her treatment and alleged discrimination. Her employer rejected the grievances following an investigation and appeal process.

An Employment Tribunal majority held that failures to investigate aspects of the grievance amounted to racial victimisation and awarded injury-to-feelings compensation. The Employment Judge dissented. The employer appealed that finding. The claimant’s cross-appeal against the dismissal of other discrimination, harassment and victimisation claims had already been dismissed by the Employment Appeal Tribunal on 22 May 2012.

The central issues were whether the majority’s findings were perverse and whether it had applied the legal requirements for victimisation correctly.

1. Appeal allowed. The majority decision that the employer had victimised the claimant was perverse. The complaint made by Hannah Hatch was not part of the claimant’s grievance. It had been withdrawn, and the alleged comment relied on had no racial connotation. In any event, the grievance appeal outcome addressed that comment, while the earlier grievance outcome addressed the claimant’s alleged exclusion from a meeting.

2. The majority also erred in finding that the grievance decision-makers had failed to address allegations of race discrimination and victimisation. Although their outcome letters did not use those labels expressly, they considered and rejected the claimant’s assertion that she had been treated differently, unfairly and with less support than comparable managers. There was no requirement to reject the discrimination allegations in express terms.

3. The Tribunal additionally held that the majority had misapplied victimisation law. Applying Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830, the inquiry requires a comparison with the treatment afforded, or which would have been afforded, to a person who had not done the protected act. It also requires a factual inquiry into the alleged discriminator’s reason for acting. The majority identified neither a comparator nor an explained basis for finding that any deliberate investigative failure occurred because of the claimant’s protected complaints.

4. As the factual foundation for victimisation was perverse, no remittal was required. The complaint that the employer committed an act of racial victimisation was dismissed.

• Employment Appeal Tribunal: Allowed the employer’s appeal and dismissed the victimisation complaint.
• Employment Tribunal, Ashford: In a majority decision sent to the parties on 27 June 2011, upheld the victimisation complaint and awarded £4,021.67, including interest, for injury to feelings. The Employment Judge dissented.
• Employment Appeal Tribunal: On 22 May 2012, HHJ David Richardson dismissed the claimant’s cross-appeal concerning the dismissal of her remaining discrimination, harassment and victimisation claims.