Bijlani v Stewart & Ors

In a discrimination claim, the relevant question is why the treatment causing the detriment occurred. Race need only be one reason influencing the treatment; it need not be the principal reason. Disciplinary action is not itself racial merely because the underlying misconduct was racial. The claimant must show that the disciplinary decision was independently influenced, at least in part, by race. An asserted concern about reputational damage must have been an actual reason for the decision and cannot be established by speculation. Detailed factual findings by an employment tribunal, supported by the evidence and disclosing no error of law, cannot ordinarily be reopened on appeal.

Dr Bijlani, a barrister at 4 New Square, brought numerous claims under the Race Relations Act and Disability Discriminations Act against heads of chambers. The employment tribunal dismissed the claims. The Employment Appeal Tribunal allowed three grounds to proceed to a full hearing concerning alleged racist incidents involving clerks, equal opportunities training and the appointment of the clerks to act for her, but rejected those grounds after hearing the appeal. Permission to appeal to the Court of Appeal was refused on paper and at an oral hearing, but the matter was referred for this oral application. The central issues were whether the handling of the incidents caused a detriment on racial grounds and whether the tribunal’s findings disclosed an error of law.

1. Application refused. The Court of Appeal refused permission to appeal because the proposed grounds had no real prospect of success. The appellant’s allegations of fraud, bias, fresh evidence and perversity could not properly be reopened at this stage.
2. For discrimination, victimisation or harassment, the essential question is why the treatment causing the alleged detriment occurred. Race need not be the sole or principal reason. It is sufficient if race was one of the reasons influencing the treatment.
3. That principle did not make the disciplinary decisions in this case racial acts merely because the clerks’ misconduct was racial. The question was whether the decisions not to dismiss the clerks, or not to provide training regarded as effective, were themselves influenced in part by race.
4. The employment tribunal had made detailed findings about the 2000 incident. The clerks’ value to chambers and the wishes of the complainant explained the decision not to dismiss them. The tribunal was entitled to find that reputational damage was not a reason for the decision. It was not legitimate to speculate about what might have occurred had the circumstances been different.
5. The tribunal had also found no racial element in the handling of the 2004 and 2006 incidents. Its findings were open to it on the evidence. Criticism of shortcomings in equal opportunities arrangements did not establish action or inaction on grounds of race. Complaints concerning training and the appointment of clerks were therefore also incapable of yielding an arguable error of law.

• Court of Appeal (Civil Division): Permission to appeal from the EAT was refused after an oral application.
• Employment Appeal Tribunal: An appeal from the employment tribunal was dismissed on the three grounds concerning the clerks and related equal opportunities matters.
• Employment Tribunal: The discrimination claims were dismissed on the merits, save that one claim was dismissed as out of time.