Micheldever Tyre Service Ltd v Burrell

For victimisation under Race Relations Act 1976, it is insufficient to make a simple comparison between a claimant who has done a protected act and others who have not. The tribunal must determine why the alleged discriminator acted as it did. The statutory words by reason that require a factual inquiry into the actual, conscious or unconscious, reason for the treatment.

Where serious racial-harassment complaints are handled with unexplained delay and ineffective managerial action, a tribunal may find facts capable of shifting the burden under section 54A. If the employer does not prove a non-discriminatory explanation, direct discrimination is established.

The claimant, a tyre-fitter and the only black employee at the Fareham depot, complained of racial name-calling and pursued a grievance. The Employment Tribunal found that the employer dealt with the grievance inadequately and upheld a direct race-discrimination complaint. It also upheld victimisation, finding that a proposed transfer from Fareham to Micheldever was partly because he had raised the grievance.

The employer appealed the direct-discrimination and victimisation findings. The claimant appealed the finding that his dismissal for refusing the transfer was fair. The central issue on victimisation was whether the transfer was imposed by reason that the claimant had done the protected act.

1. The employer's appeal was allowed only on victimisation. Its appeal against the finding of direct race discrimination was dismissed, as was the claimant's appeal against the finding of fair dismissal. The case was remitted to the same Employment Tribunal to determine remedies for the upheld discrimination claim.

2. The Tribunal was entitled to find facts from which discrimination could be inferred under section 54A of the Race Relations Act 1976. The employer had delayed and dealt ineffectively with serious complaints of admitted racial name-calling. It had also failed, without adequate explanation, to take the managerial steps recommended to stop recurrence. The employer did not discharge the resulting burden of proving that those failings were not discriminatory.

3. The Tribunal misdirected itself on victimisation. Section 2 required it to decide whether the employer required relocation by reason that the claimant had raised his grievance. That is a subjective factual inquiry into the employer's actual reason. It is not resolved by a bare comparison with employees who did not do the protected act, and motive is not immaterial.

4. There was no evidential basis for finding that the grievance played any part in the relocation decision. The grievance process had ended before the claimant returned unexpectedly to Fareham. After he withdrew from proposed ACAS mediation, relocation was reasonably proposed as the best practical response to the difficulties of reintegration. The protected act therefore played no part in the decision, and the victimisation finding was set aside.

5. The dismissal was fairly found to be fair. The earlier discrimination finding did not automatically make a later dismissal unfair. On remedies, a fair dismissal does not automatically prevent compensation for post-dismissal loss caused by the earlier discrimination. The Tribunal must consider causation and whether the claimant unreasonably failed to mitigate loss by refusing relocation.

• Employment Appeal Tribunal: allowed the employer's appeal against the victimisation finding, dismissed its appeal against direct race discrimination, and dismissed the claimant's appeal against the finding of fair dismissal. Remitted remedies for the discrimination finding.
• Employment Tribunal: upheld claims of direct race discrimination and victimisation, but found the claimant fairly dismissed.