Tower Hamlets Primary Care Trust v Ugiagbe

An appellate tribunal may not set aside an Employment Tribunal’s inferential finding merely because a different conclusion was available. The question is whether the inference had an evidential basis and was one a properly directed tribunal could reach.

In a direct race discrimination case, untruthful evidence, disparaging conduct and the wider factual context may support an inference that conduct was racially motivated. A tribunal may assess its findings cumulatively rather than in isolation. An employer’s explanation need not be objectively reasonable, but the tribunal must decide whether it is true and non-discriminatory.

The claimant, a former employee of the Trust, brought claims including unfair dismissal and direct race discrimination. An earlier Tribunal found the dismissal unfair and upheld part of the race discrimination claim. A previous appeal remitted the successful race discrimination complaints for rehearing before a differently constituted Tribunal, while leaving the unfair-dismissal finding undisturbed.

On rehearing, the Tribunal found direct race discrimination in Dr Russell’s remarks about the claimant’s mental capacity and in the public announcement that another employee would take over part of his work. It rejected the allegation that the dismissal was racially discriminatory. Both parties appealed.

The central issues were whether the Tribunal’s inferences of discrimination were open on the evidence, and whether its acceptance of the Trust’s non-discriminatory explanation for the dismissal disclosed an error of law.

1. Both appeals were dismissed. The remitted Tribunal had correctly addressed whether the Trust’s treatment, including its explanation for dismissal, was discriminatory. It was not required to determine again whether there had been a dismissal, since that issue had not been appealed in the earlier proceedings.

2. The claimant’s appeal failed. The Tribunal had considered extensive evidence and was entitled to accept the Trust’s explanation that the dismissal was not on racial grounds. Its task was to establish the truth of that explanation. Any lack of precision in labelling the dismissal as redundancy or reorganisation did not disclose an error of law.

3. The Tribunal was entitled to find that Dr Russell had not participated in the dismissal decision. The claimant’s late attempt to broaden the appeal by relying on notes of evidence was impermissible and, in any event, the material supported the Tribunal’s finding.

4. The Trust’s appeal also failed. The Tribunal had a proper evidential basis for inferring that Dr Russell had changed his account in order to conceal discriminatory conduct. It could take account of his untruthful evidence, disparaging remarks and the manner and extent of his criticism of the claimant. The fact that an alternative, non-discriminatory inference might also have been available did not permit appellate interference.

5. The Tribunal had not determined an unpleaded case concerning the public announcement that another employee would take over the claimant’s duties. The claimant’s being upset rather than seriously undermined was a difference of degree, not a different allegation. The Tribunal could apply its assessment of Dr Russell’s conduct in one context when evaluating another and could take an overall view of the evidence.

• Employment Appeal Tribunal: Both the claimant’s and the Trust’s appeals from the remitted Tribunal decision were dismissed.

• Employment Appeal Tribunal: An earlier appeal by the Trust succeeded to the extent that the successful race discrimination complaints were remitted for rehearing before a differently constituted Tribunal. The finding that the dismissal was unfair was not appealed. Keith J later clarified the scope of the remission.

• Employment Tribunal: The original Tribunal upheld the unfair dismissal claim and part of the race discrimination claim.