Burrell v Micheldever Tyre Service Ltd

Where serious complaints of racial harassment are not investigated or addressed with appropriate speed, diligence and effective management action, an employment tribunal may infer direct racial discrimination. Once the burden shifts under Race Relations Act 1976, section 54A, the employer must prove that the failures were not discriminatory.

A victimisation claim requires proof that the protected act was a reason for the alleged detriment. A comparison alone is insufficient. The inquiry is into the decision-maker’s conscious or unconscious reason for the treatment. A reasonable relocation proposed to resolve workplace difficulties, rather than because of a grievance, is not victimisation.

A fair dismissal does not automatically preclude compensation for loss after dismissal arising from an earlier act of discrimination.

The claimant, the only black tyre-fitter at the Fareham depot, complained of racial name-calling and later raised a grievance alleging bullying, harassment and discrimination. The Employment Tribunal upheld his direct race discrimination claim because the employer had delayed and failed to take effective action on the grievance.

It also upheld a victimisation claim, finding that a requirement to relocate from Fareham to Micheldever was partly because he had raised the grievance. It rejected his unfair dismissal claim after he refused the relocation instruction and was dismissed.

Both parties appealed. The employer challenged the findings of direct discrimination and victimisation. The claimant challenged the finding that his dismissal was fair. The central issue on victimisation was whether the protected act was a reason for the proposed relocation.

1. The employer’s appeal succeeded in part. The appeal against the victimisation finding was allowed. Its appeal against the direct discrimination finding was dismissed. The claimant’s appeal against the unfair-dismissal finding was dismissed.

2. The Employment Tribunal was entitled to hold that the delay and ineffective handling of serious complaints of racial name-calling were facts from which discrimination could be inferred under section 54A of the Race Relations Act 1976. The employer did not discharge the resulting burden. It gave no satisfactory explanation for the absence of firm managerial action or for the failure to implement the recommended meeting and disciplinary warning.

3. The Tribunal erred in law on victimisation. Under section 2 of the Race Relations Act 1976, the question is whether the treatment was imposed by reason that the claimant did the protected act. That requires a factual inquiry into the decision-maker’s reason, consciously or unconsciously. The mere fact that the claimant, unlike colleagues, had raised a grievance did not establish that causal reason.

4. On the Tribunal’s own findings, the grievance played no part in the relocation decision. The proposal followed the claimant’s return to a difficult workplace and the abandonment of ACAS mediation. It was a reasonable, and arguably best, solution to workplace difficulties. There was no evidential basis for treating the grievance as any part of the reason for relocation.

5. The Tribunal was entitled to find the dismissal fair. The earlier discrimination finding did not automatically taint every later event. On remission, however, the Tribunal must consider what loss the discrimination caused, including whether compensation can extend beyond dismissal and whether the claimant unreasonably failed to mitigate loss by refusing relocation.

• Employment Appeal Tribunal: employer’s appeal allowed on victimisation, but dismissed on direct race discrimination; claimant’s appeal against the unfair-dismissal finding dismissed. The case was remitted to the same Employment Tribunal for remedies on the upheld discrimination claim.
• Employment Tribunal: upheld claims of direct race discrimination and victimisation, and rejected the unfair-dismissal claim.