South Wales Police Authority v Johnson

For the statutory burden of proof in a direct race-discrimination claim to shift, the claimant must prove facts which, without an adequate explanation, would justify a conclusion that discrimination occurred. Evidence suggesting only a possibility, or inviting psychological speculation, is insufficient. The prima facie case is a factual finding, not a presumption, and tribunals must avoid a mechanistic approach. A generalised adverse remark about black men, without a sufficient evidential link to the claimant’s treatment, did not meet that threshold. An appellate tribunal must give reasons when rejecting a particularised perversity challenge, but may intervene where the tribunal’s reasoning cannot be sustained.

The respondent brought employment tribunal claims alleging racial discrimination and victimisation during his employment by the South Wales Police Authority. Following a lengthy hearing, the Employment Tribunal upheld two direct-discrimination complaints concerning his exclusion from meetings and extended time for bringing them.

The Employment Appeal Tribunal considered the limitation reasoning flawed and remitted that issue, but rejected the Authority’s challenge to the discrimination findings on perversity grounds in brief terms. The Authority appealed to the Court of Appeal, challenging the findings concerning items 35 and 38. The central issues were whether the evidence satisfied the first stage of the statutory burden of proof and whether the Employment Tribunal’s reasoning could stand.

The Court of Appeal allowed the appeal and dismissed the racial-discrimination claim in its entirety. Lord Justice Underhill gave the leading judgment; the Master of the Rolls and Lady Justice Macur agreed.

1. Appellate reasoning. The Employment Appeal Tribunal had been required to give reasons addressing the Authority’s particularised perversity challenge. A bare statement that it was not persuaded was inadequate.
2. Burden of proof. Section 54A of the Race Relations Act 1976 did not create a presumption of discrimination. At stage (1), the claimant had to prove facts which, in the absence of an adequate explanation, could justify a conclusion that discrimination had occurred. Facts showing only that discrimination was possible, or that it could have occurred, were insufficient. The approach had to remain factual and non-mechanistic, applying the principles explained in Madarassy v Nomura Plc [2007] ICR 867, Igen Ltd v Wong [2005] ICR 931 and Hewage v Grampian Health Board [2012] ICR 1054.
3. Item 35. The Employment Tribunal’s conclusion depended entirely on a single remark by Ms Sweeney concerning black men in intimate relationships. The remark did not refer to the respondent, and no other evidence linked it to her hostility towards him. It might indicate an adverse stereotype, but it could not, without solid and sufficient evidence, justify the required inference. Liability could not be based on psychological speculation.
4. Item 38. The finding against Ms Sweeney depended on the same flawed reasoning. As to Chief Superintendent Kinrade, there was no equivalent evidence of racial motivation. The Tribunal appeared to infer that his motivation was the same as Ms Sweeney’s merely because he was associated with her conduct. Even if that reasoning were permissible, it could not survive the failure of the underlying finding against Ms Sweeney.
5. The Tribunal’s evidential basis for finding that the respondent had been excluded from the Gwent meeting was also unsatisfactory, although that issue was not decisive. The discrimination findings were set aside and the claims were dismissed, making it unnecessary to determine limitation.

1. Court of Appeal (Civil Division) — appeal allowed; the racial-discrimination claim dismissed in its entirety: [2014] EWCA Civ 73.
2. Employment Appeal Tribunal — limitation reasoning held flawed and remitted for further consideration; challenge to the discrimination findings rejected.
3. Employment Tribunal — two findings of direct racial discrimination were made, concerning exclusion from meetings, and time was extended under section 68(6) of the Race Relations Act 1976.