Fraser v University Of Leicester & Ors (Race Discrimination)

In a discrimination claim involving many allegations, a tribunal must determine the individual complaints but must also stand back and assess the themes and the total picture. It must avoid both an unduly fragmented analysis and the assumption that unreasonable treatment, delay or poor practice is discriminatory.

Under the burden-of-proof provisions of the Race Relations Act 1976, the tribunal asks whether the primary facts could support an inference of discrimination. It may consider the respondent’s explanation at that stage and may, in any event, determine the real reason for the treatment. Findings of a genuine, non-discriminatory reason answer the claim.

The claimant, a black professor employed by the university, brought two claims alleging direct race discrimination, harassment and, in the second claim, victimisation. The claims concerned the handling of complaints and grievances within the Economics Department, the conduct of senior officers, occupational-health arrangements, delays and grievance procedures.

After a lengthy merits hearing, the Employment Tribunal dismissed all complaints. It considered each allegation, the broader themes and the overall picture. It found some unreasonable treatment, delays and poor practice, but no facts supporting race discrimination and, in any event, non-discriminatory explanations. It also rejected the asserted continuing act and refused a just-and-equitable extension of time.

The claimant appealed principally on burden of proof, the alleged failure to take a holistic approach, victimisation, and the treatment of answers to a statutory questionnaire.

1. Appeal dismissed unanimously. The Employment Tribunal had not taken an impermissibly fragmented approach. It correctly considered the numerous individual allegations, then the major themes, and finally the total picture. That approach complied with the need, in a multiple-allegation discrimination case, to see both the detail and the wider context.

2. The Tribunal’s overall findings were open to it. The respondents’ conduct was explained by departmental conflict, scepticism about a late grievance, genuine concern for an employee certified unfit for work, workload, inefficiency and poor communication. Those explanations were found to be unrelated to race or to an actual or suspected complaint of race discrimination. Unreasonable treatment, delay and poor practice did not of themselves justify an inference of discrimination.

3. The Tribunal correctly applied the burden of proof under section 54A(2) of the Race Relations Act 1976. At the first stage it asked whether the established facts could support a conclusion that the reason for treatment was discriminatory. It was entitled to take account of the respondents’ explanations. It also permissibly considered, even if the burden had not shifted, whether the respondents had established a non-discriminatory reason. The focus on the real reason for treatment did not impose an additional burden on the claimant.

4. The challenge concerning possible victimisation failed. It was unnecessary to decide whether being mindful that a black complainant might allege race discrimination amounted to suspicion of a future protected act. The Tribunal had found no causal connection between any such state of mind and the treatment. Moreover, the relevant matters belonged to the first claim, in which victimisation was not pursued; any attempt to treat them as part of the second claim was outside time and no appeal challenged the refusal to extend time.

5. The Tribunal was entitled to attach no adverse inference to the respondents’ answers to the statutory questionnaire. The alleged deficiencies raised matters of evidential weight, not an error of law.

• Employment Appeal Tribunal: Appeal dismissed: [2014] UKEAT 0155_13_0506.
• Employment Tribunal: Leicester Employment Tribunal dismissed the claimant’s race-discrimination complaints in a reserved judgment and reasons sent to the parties on 30 July 2012.