Fullah v Medical Research Council (MRC) & Anor (Race Discrimination : Direct)

An allegation is a protected act under section 2(1)(d) of the Race Relations Act 1976 only if its language and context sufficiently indicate a complaint capable of falling within that Act. The word race need not be used, but a general complaint of unfair discrimination or victimisation is insufficient where its context does not identify race discrimination.

A victimisation claim also requires relevant comparators, less favourable treatment and proof that the detriment was imposed because of the protected act. An appeal court will not interfere with findings on those matters where the tribunal has properly assessed the evidence and the alleged decision-makers' reasons.

The claimant, a black British employee, brought numerous claims of direct race discrimination and victimisation against his employer and a senior employee. The Employment Tribunal dismissed every claim after an eight-day hearing.

On appeal, only the victimisation issue remained. The claimant relied on internal complaints of bullying, harassment, discrimination and victimisation by his white manager. He contended that those complaints constituted a protected act and that he was subsequently denied an acting-up role and a permanent post because of it.

The central issue was whether the complaints, read in their context, alleged race discrimination for the purposes of section 2(1)(d) of the Race Relations Act 1976, and whether either appointment decision was victimisation.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the claimant had done no protected act. Although an allegation need not expressly use the word race, the complaint and its context must sufficiently indicate an allegation capable of amounting to race discrimination under section 2(1)(d) of the Race Relations Act 1976.
2. The claimant's contemporaneous complaints referred generally to bullying, harassment, discrimination and victimisation. They did not refer to race. The Tribunal was entitled, having assessed the documentary and witness context, to treat them as complaints about generally poor treatment by the manager, rather than race discrimination. Internal references by management or HR to a possible racial-discrimination claim could not supply the missing allegation by the claimant.
3. The finding was reinforced by the claimant's own account that the manager treated black and white employees in the same unfavourable way. That account did not establish less favourable treatment by reference to race or to a protected act.
4. In any event, the Tribunal's alternative findings disposed of the claim. Applying the three ingredients identified in Chief Constable of West Yorkshire Police v Khan, it considered the relevant circumstances, less favourable treatment and the alleged discriminator's reason for the treatment. It permissibly found that the acting-up appointment had a sound business basis and that the permanent-post decision was made by different decision-makers for reasons unconnected with race or any protected act.

• Employment Appeal Tribunal: dismissed the claimant's appeal in [2013] UKEAT 0586_12_1006.
• Employment Tribunal, Bury St Edmunds: dismissed the claimant's claims of direct race discrimination and victimisation after an eight-day hearing. No citation is stated.