Kimti v Tyne & Wear Fire & Rescue Authority

An Employment Tribunal may determine a discrimination complaint by asking why the claimant received the treatment complained of. It must examine the decision-maker’s mental processes, including possible unconscious discrimination, rather than treating motive as decisive.

The Tribunal must make findings of primary fact and assess all the evidence. An appeal tribunal will not revisit those factual findings merely because a different inference is urged.

In a redundancy dismissal, the reasonableness of alternative employment and of an internal appeal depends on the overall process. An appeal heard initially by the dismissing officer is not invariably unfair, particularly where a further independent appeal is available.

The claimant, a Regional Diversity and Equality Policy Advisor of British-Indian ethnic origin, brought claims of race and sex discrimination, victimisation, unlawful deductions and unfair dismissal against her former employer.

Her post was funded by four regional authorities. After three withdrew funding, the respondent identified the post as redundant and dismissed her on 30 April 2011. She also alleged discriminatory treatment in relation to a colleague’s role and exclusion from diversity events.

Following a ten-day merits hearing, the Employment Tribunal at Newcastle dismissed every claim. The claimant appealed on grounds concerning the Tribunal’s approach to discrimination and victimisation, limitation, alternative employment, and the fairness of an appeal against dismissal.

1. Appeal dismissed. The Employment Tribunal had correctly directed itself on the discrimination complaints. Asking why the claimant was treated as she was was a permissible approach, supported by the high authority of [1999] ICR 877 and [2003] ICR 337.

2. The distinction between motive and motivation was material. Motive was not determinative, but the Tribunal had to consider the mental processes which caused the alleged discriminator to act, whether conscious or unconscious. The Tribunal’s finding that the treatment was not influenced by the claimant’s sex or race sufficiently encompassed that inquiry.

3. The Tribunal had made the necessary primary findings of fact, considered the evidence of both sides, and assessed the whole picture. Its findings rejected the allegations concerning the colleague’s appointment and exclusion from events. The appeal sought, impermissibly, to reargue factual matters and invite the EAT to substitute its own assessment.

4. Once the alleged acts had been found not to be discriminatory, there was no continuing series of discriminatory acts capable of bringing earlier complaints within time. The Tribunal’s approach to limitation disclosed no error.

5. The unfair-dismissal findings were also open to the Tribunal. The Administrative Assistant role, nine grades below the claimant’s post and requiring training, was not necessarily reasonable alternative employment. Nor was the dismissal rendered unfair because the Chief Fire Officer signed the dismissal letter and heard the first appeal. Fairness depended on the process as a whole, and the claimant had not pursued her further right of appeal to an independent panel.

• Employment Appeal Tribunal: dismissed the claimant’s appeal.
• Employment Tribunal, Newcastle: after a ten-day merits hearing, dismissed all complaints by a judgment dated 19 June 2012.