X v Y (Race Discrimination : Direct)

In a direct race-discrimination claim, an Employment Tribunal must assess the totality of the primary facts. It should not determine each complaint in isolation and then fail to consider whether their cumulative effect permits an inference of discrimination.

Unreasonable treatment, different ethnicity and less favourable treatment do not alone establish discrimination. There must be something more. But a substantial pattern of breaches and poor treatment may be capable of shifting the burden of proof. An unexplained finding of poor management is insufficient where that management may itself be a symptom of discrimination.

The central question remains why the treatment occurred. A formal two-stage analysis is not invariably required, but the Tribunal must give adequate reasons for rejecting discrimination on the facts as a whole.

The claimant, a black African outreach worker, brought claims arising from her employment with a health and social care charity. The Employment Tribunal found that serious and cumulative failures by the respondent, including failures concerning support, safety arrangements, vaccination, confidential information and employment arrangements, amounted to repudiatory breaches of trust and confidence. It upheld her constructive-dismissal claim.

The Tribunal nevertheless dismissed claims for direct race discrimination, harassment and victimisation. It attributed the treatment principally to poor management rather than racial motivation.

The claimant appealed. The central issue was whether the Tribunal had lawfully assessed the discrimination evidence, particularly whether it had considered the cumulative effect of its findings, including post-termination matters and the conduct of persons other than the claimant’s manager.

1. Appeal allowed. The Employment Tribunal erred in its approach to the direct race-discrimination claim. The matter was remitted for rehearing before a fresh Tribunal.

2. The Tribunal was entitled to make its individual findings of primary fact. The Employment Appeal Tribunal would not re-try those findings or infer discrimination merely because the claimant was of a different ethnicity from comparators and had received unreasonable treatment. Something more than those matters is required before discrimination may be inferred.

3. However, the Tribunal was required to stand back and assess the cumulative effect of all relevant findings. It had found a significant number of substantial breaches of the implied term of trust and confidence. It did not adequately explain why that overall pattern did not support an inference that race was a reason for the less favourable treatment.

4. A conclusion that the conduct resulted from poor management did not answer the discrimination issue. Poor management could itself be a manifestation of discriminatory conduct. The assessment also concentrated excessively on Ms Ball, although other persons were potentially responsible, and did not bring the post-termination complaints into the overall evaluation.

5. Considered cumulatively, the findings were capable of engaging the reverse burden of proof under section 54A of the Race Discrimination Act. The respondent therefore required a cogent explanation, and the Tribunal required to give clear reasons for accepting it. Its reasons did not do so.

6. The remaining challenges did not justify intervention. A comparator was not invariably necessary; the Tribunal had dealt with harassment and victimisation; and its reasons were intelligible. The discrimination claims were remitted for rehearing before a fresh Tribunal because the original Tribunal could not reasonably be expected to approach the matter with a fresh mind.

• Employment Appeal Tribunal: allowed the claimant’s appeal against dismissal of the direct race-discrimination claim and remitted that claim to a fresh Tribunal.

• Employment Tribunal, East London: upheld the claimant’s constructive-dismissal claim but dismissed her claims for race discrimination, harassment and victimisation.