Alam v London Probation Trust

In direct discrimination and victimisation claims, the protected characteristic or protected act need not be the sole cause of the treatment. It is sufficient if it is an effective cause.

A tribunal must determine why the claimant was treated as she was. It need not construct a hypothetical comparator where the evidence concerning actual comparators permits that question to be addressed. However, it must not frame the inquiry as a choice between discrimination and another explanation if both may have contributed to the treatment.

The appellant, an Asian woman of Pakistani origin, had been employed as a Probation Prosecutor. She was dismissed following delay in processing a warrant for a Tier 4 high-risk offender. She brought claims for unfair dismissal, direct race discrimination and victimisation.

The Employment Tribunal dismissed all claims in a judgment sent on 6 November 2013. It found that the decision to instigate disciplinary action reflected the seriousness of the appellant's conduct, rather than her race or protected acts. The appellant appealed, principally challenging the Tribunal's comparator analysis and its approach to causation.

1. Appeal allowed. The Employment Tribunal's first sentence at paragraph 86 presented race discrimination or victimisation, and the manager's view that the conduct was more serious misconduct, as mutually exclusive alternatives. That was an error of approach.

2. The correct question was whether race or protected acts were an effective cause of the treatment. They did not have to be its sole cause. Other factors could coexist and even predominate. The Tribunal's formulation therefore risked excluding a legally sufficient discriminatory or victimising cause.

3. The Tribunal had not erred merely by declining to construct a hypothetical comparator. It had evidence concerning three actual comparators, and could use that material to address why the appellant had been treated as she was. Nevertheless, its reasoning did not adequately analyse whether the evidential comparisons could support an inference of discrimination or victimisation before accepting the Respondent's explanation.

4. The EAT rejected the perversity and inadequate-reasons challenges. It also held that the absence of one manager as a witness did not, without more, require an adverse inference.

5. Because the causation error occurred at the critical point of the Tribunal's analysis, the EAT could not be confident that it would necessarily have reached the same conclusion on less favourable treatment. The claims were remitted to a differently constituted Employment Tribunal for a complete rehearing.

• Employment Appeal Tribunal: allowed the appeal and remitted the claims for a complete rehearing.
• Employment Tribunal, London (Central): dismissed claims for unfair dismissal, direct race discrimination and victimisation in a judgment sent on 6 November 2013.