Cam v Matrix Service Development And Training Ltd (Race Discrimination)

An Employment Tribunal deciding racial-harassment allegations under Race Relations Act 1976, section 3A, must make clear findings on contested words and address each statutory element. Conduct need not have been directed at the claimant, but that fact may be relevant to its purpose or effect. Overt racial language requires particular care, although it is not essential to establish racial harassment.

Where harassment findings are set aside, any related limitation decision must also be reconsidered, including continuing conduct and a just-and-equitable extension. An appeal against fact-sensitive victimisation findings fails unless the high threshold for perversity is met.

The claimant, a former employee, brought claims for unfair dismissal, race discrimination, victimisation, harassment and disability discrimination. The Employment Tribunal held that the dismissal was procedurally unfair but rejected the discrimination claims and made no compensatory award.

On appeal, the claimant challenged the rejection of racial-harassment allegations concerning remarks by a colleague and an email of 5 April 2010. He also challenged the rejection of victimisation claims based on his grievance of 1 April 2010, and the Tribunal's limitation ruling.

The central questions were whether the Tribunal had applied the statutory harassment requirements, whether its victimisation findings were perverse, and whether the harassment and time issues should be remitted.

1. Appeal allowed in part. The victimisation appeal failed, but the findings on racial harassment and the associated limitation issues were set aside and remitted to the same Employment Tribunal, if reconstituted.

2. The Tribunal failed to make a clear finding whether the colleague had used the expression “white trash”. That was a key disputed fact. Its characterisation of the relevant language as merely general observations could not adequately address that allegation.

3. Under section 3A of the Race Relations Act 1976, the Tribunal had to address the statutory elements expressly: whether conduct was unwanted; whether it had the prohibited purpose or effect; whether, in all the circumstances including the claimant's perception, the effect should reasonably be so regarded; and whether it was on racial grounds. The fact that conduct was not directed at the claimant was relevant but not decisive. The Tribunal had not adequately reasoned its conclusions on effect or racial grounds.

4. The Tribunal also omitted to determine whether the colleague's email of 5 April 2010, described as bordering on offensive, was an act of racial harassment. Overtly racist language is not a necessary condition of such a claim.

5. The Tribunal's conclusion that dismissal and the disciplinary process were not caused by the protected act was open to it on the evidence. The appeal identified no perversity. The Tribunal was not required to add, of its own motion, an unpleaded victimisation allegation concerning the 5 April email where the case-management order had defined the issues.

6. The limitation decision was inseparable from the defective harassment findings and had overlooked the 5 April email. On remission the Tribunal must consider continuing conduct and whether a just-and-equitable extension is warranted. It should not merely repeat that no grounds exist, since the necessary extension might be very short and the matters were closely interlinked.

• Employment Appeal Tribunal: Allowed the appeal in part and remitted racial harassment and limitation issues to the same Tribunal.
• Employment Tribunal, London South: Judgment dated 2 February 2012. It found the dismissal procedurally unfair but rejected the race-discrimination, harassment, victimisation and disability-discrimination claims.