Lyfar-Cisse v Brighton & Sussex University Hospital NHS Trust

An Employment Tribunal must determine the live allegations identified in the agreed issues. Where a claimant alleges detrimental differential treatment, a finding explaining why a respondent intervened does not answer the distinct question why the respondent treated the claimant differently.

If the tribunal uses the statutory two-stage burden-of-proof approach, it must apply the statutory question without adding a requirement that it be legitimate and right to draw an inference, or a more stringent preliminary test. Benign motives do not necessarily exclude discriminatory treatment. A tribunal may instead ask directly why the treatment occurred, but it must then address the reason for the differential treatment.

The claimant, a black British clinical biochemist, had previously succeeded in race-discrimination proceedings against her employer. She later brought claims of direct race discrimination and victimisation arising from the intervention of the Trust’s HR Director, Mr White, in her grievance against two colleagues.

The Employment Tribunal at Havant dismissed all claims following an eight-day hearing. On appeal, the claimant challenged only two allegations against Mr White: his failure to speak to her about his intervention in the grievance and his failure to speak to her about the grievance at all. The central issues were whether those allegations had been abandoned or adequately determined, and whether the Tribunal had correctly applied the burden of proof.

1. Appeal allowed in part. The two allegations concerning Mr White’s failure to involve or speak to the claimant remained live. They had not been abandoned merely because they were not separately addressed in closing submissions. The agreed list of issues and the respondents’ written submissions showed that the allegations continued to require determination.

2. The Employment Tribunal had not adequately determined those allegations. It found that Mr White had inappropriately intervened in breach of policy, spoke to the two colleagues but not the claimant, and knew that she had done protected acts. Its finding that he intervened for benign and laudable purposes explained why he entered the process. It did not explain why he treated the claimant differently by excluding her from it.

3. Benign intentions do not necessarily mean that conduct was non-discriminatory or non-detrimental. In the absence of a finding of a non-discriminatory explanation for the differential treatment, the Tribunal needed to determine the outstanding elements of the discrimination and victimisation allegations.

4. The Tribunal also erred in purporting to apply a two-stage burden-of-proof approach. Its formulation, drawn from its discussion of Igen v Wong [2005] IRLR 258 and Madarassy v Nomura International [2007] ICR 867, added an impermissible gloss to the statutory test. The question was whether facts had been proved from which the tribunal could conclude discrimination, absent an adequate explanation. The burden point alone would not have overturned the decision, but it reinforced the need for reconsideration because the Tribunal’s alternative conclusion was itself vitiated by the missing findings.

5. Issues 4.1 and 4.2 were remitted to the same Tribunal for rehearing and reconsideration. The limited remittal was proportionate, and the Tribunal could give further case-management directions.

• Employment Appeal Tribunal: Allowed the appeal concerning two allegations against Mr White and remitted them to the same Employment Tribunal.
• Employment Tribunal at Havant: Following an eight-day hearing, dismissed all of the claimant’s claims of unlawful race discrimination.