Mangalore v London School Of Economics And Political Science (Victimisation Discrimination)

Victimisation under section 27 of the Equality Act 2010 turns on the reason for the detrimental treatment. It does not require a comparator or a finding of less favourable treatment. A tribunal may nevertheless consider how others were treated where that assists its analysis of the reason for treatment.

An erroneous reference to a comparator will not require reversal where it did no analytical work and the tribunal correctly decided, on its findings, that the protected act was not a reason for the detriment. An appellate court may uphold such a decision where the tribunal was plainly and unarguably right as to the outcome.

The claimant had previously brought discrimination proceedings against the respondent. Following the settlement of those proceedings, she applied for a lecturer post but was not appointed after a competitive selection process.

The Employment Tribunal dismissed claims including victimisation. It found that knowledge of the claimant’s history and concerns about working relationships could shift the burden of proof, but that the appointment process was fair and the claimant was not appointed because she was not appointable.

On appeal, the claimant challenged the Tribunal’s use of comparator language under section 27 of the Equality Act 2010, its treatment of possible reasons for the decision, and its consideration of concerns about trust and confidence. The central issue was whether those matters disclosed an error of law in the dismissal of the victimisation complaint.

1. Appeal dismissed. The Employment Tribunal’s references to a hypothetical comparator and to how the employer would treat others were erroneous in a victimisation claim under section 27 of the Equality Act 2010. The statutory question was why the claimant had not been appointed, not whether a comparator had received less favourable treatment.

2. The error did not invalidate the decision. Unlike Woodhouse, the Employment Tribunal had not used an unhelpful comparator as the means of deciding the issue. Its material analysis asked the correct causal question and concluded that the claimant was not appointed because she was unappointable on objective evidence from a fair competitive process.

3. The Tribunal had permissibly found that the burden of proof shifted because persons involved in the process knew of the protected act and had expressed concern about the claimant’s appointment. It was then entitled to find that the respondent had shown a proper and legitimate reason for non-appointment. Knowledge of the claimant’s past history and genuine concerns about workplace relationships did not prevent that conclusion.

4. The proposed hypothesis that the claimant might have been appointable did not undermine the findings. The Tribunal had found that she was not appointable, after a detailed examination of the selection process. Its conclusion at paragraph 7.83 was the culmination, rather than an abandonment, of its reasoning.

5. Applying the approach in Dobie v Burns International Security Services (UK) Ltd [1984] IRLR 329, the Tribunal was plainly and unarguably right as to the outcome despite the misdirection.

• Employment Appeal Tribunal: Appeal dismissed. The Employment Tribunal’s dismissal of the victimisation complaint was upheld.
• Employment Tribunal, London Central: Dismissed the claimant’s claims for direct age and race discrimination, victimisation and harassment. The written reasons were sent to the parties on 24 September 2012.