D'Silva v Manchester Metropolitan University (Race Discrimination)

Under section 54A of the Race Relations Act 1976, an Employment Tribunal must consider whether the proved facts could support an inference of race discrimination without an adequate explanation. Where the Tribunal makes clear and sustainable findings that explain the treatment complained of, an appeal cannot succeed merely because another tribunal might have drawn a different inference.

The Employment Appeal Tribunal does not retry the facts. It may correct an error of law, including perversity, but it cannot make primary findings or draw factual inferences in place of the Employment Tribunal.

The claimant, a senior lecturer, brought race-discrimination complaints arising from the university's decisions not to promote him to Reader or Professor in the 2004/05 and 2005/06 promotion rounds. His sixth and seventh tribunal claims were dismissed by the Employment Tribunal chaired by Employment Judge Sneath.

He appealed, contending that the Tribunal had misapplied the burden of proof and had failed properly to address differences in the promotion process, including the use and selection of referees. A further appeal challenged the striking out of his eighth claim by a Tribunal chaired by Employment Judge Robertson. That appeal was agreed to depend upon the first appeal.

1. Both appeals were dismissed. The Sneath Employment Tribunal had made detailed findings that the claimant's applications did not meet the published promotion criteria. Its findings explained the differing outcomes in the promotion rounds and the arrangements for obtaining references.

2. The Tribunal's statement that the claimant had failed to prove that his applications were as good as those of his comparators would, in isolation, have caused concern. Read with the Tribunal's detailed findings, however, it did not show a misdirection. The Tribunal had considered the evidence and made findings that supplied non-discriminatory explanations for the decisions.

3. The Tribunal was entitled to find that the promotion committee could consider the trajectory and current level of the claimant's research. The application material and references had addressed those matters. The Tribunal was also entitled to find that the claimant had received special, more favourable treatment in the earlier Readership round, and that his later progression to stage 2 resulted from an improved application.

4. The complaints concerning the disciplinary expertise and institutional standing of referees, their number, and a comparator's identification of a referee did not require a contrary conclusion. The Tribunal had made factual findings rejecting less favourable treatment and explaining the relevant differences. The final point was, in any event, insufficient to permit an inference of discrimination or to shift the burden of proof.

5. The Employment Appeal Tribunal's role was confined to correcting errors of law. It could not replace the Tribunal's primary factual findings or inferences with its own. No perversity or other error of law was established. Since the second appeal was dependent on the first, it also failed.

• Employment Appeal Tribunal: Dismissed the joined appeals. The appeal from the Sneath Employment Tribunal failed on the limited race-discrimination grounds permitted to proceed. The appeal from the Robertson Employment Tribunal also failed because it depended on the first appeal.
• Employment Tribunal (Sneath): Dismissed the claimant's sixth and seventh claims, including complaints concerning promotion in the 2004/05 and 2005/06 rounds. The judgment was sent to the parties on 30 December 2010.
• Employment Tribunal (Robertson): Struck out the claimant's eighth claim as having no reasonable prospect of success.