Veolia Environmental Services UK v Gumbs

In a direct discrimination claim, a difference in protected status and treatment alone does not shift the burden of proof. However, the tribunal may take account of facts which make discrimination a realistic inference, including materially inconsistent accounts for adverse treatment and a manager's untruthful denial of knowledge relevant to that treatment. The tribunal must exclude the substance of any allegedly inadequate explanation at the first stage, but it need not ignore the fact that inconsistent reasons were advanced.

The issue is fact-sensitive. An appellate tribunal should not interfere absent clear misdirection or perversity. Separate incidents may constitute conduct extending over a period where a common decision-maker links adverse decisions concerning the same aspect of the claimant's work.

The claimant, a black employee, succeeded before the Employment Tribunal in a complaint of direct race discrimination. The Tribunal found that he had been moved from vehicle work to street-barrows for three days in 2009 and that he was prevented from obtaining a driving assessment between November 2010 and May 2011.

The employer appealed. It challenged the Tribunal's conclusion that the burden of proof had shifted, its rejection of the employer's explanations, and its finding that the two matters formed conduct extending over a period for limitation purposes under section 123(3) of the Equality Act 2010.

1. Appeal dismissed. The Employment Tribunal had correctly directed itself under the two-stage burden-of-proof approach. It did not treat race and differential treatment alone as sufficient.

2. The Tribunal was entitled at the first stage to consider the fact that the employer had advanced differing and inconsistent reasons for transferring the claimant to barrow work. The rule excluding an inadequate explanation at that stage excludes consideration of its substance. It does not require a fact-finding tribunal to disregard inconsistent accounts as evidential material.

3. The Tribunal was also entitled to rely on the manager's untruthful asserted lack of knowledge of the claimant's wish to drive, together with the manager's antagonism and the absence of any suggested non-discriminatory personal motive. Those facts were capable of supporting an inference requiring an explanation. The burden-of-proof assessment is fact-sensitive, and appellate intervention is appropriate only in the clearest case of misdirection or perversity.

4. The employer's challenge to the finding that it had not discharged the shifted burden was an impermissible invitation to re-evaluate the evidence. The Tribunal had examined the accounts in detail and was entitled to find them inconsistent and unconvincing.

5. The two incidents could be treated as conduct extending over a period under section 123(3) of the Equality Act 2010. The Tribunal had found that the same manager was a decision-maker in both adverse decisions, and his involvement supplied a sufficient common thread.

• Employment Appeal Tribunal: Appeal dismissed. The Tribunal's findings of direct race discrimination and its limitation ruling were upheld.
• Employment Tribunal: The claimant succeeded in direct race discrimination. His harassment and victimisation complaints failed. Compensation of £6,500 was awarded at a remedies hearing; no appeal was brought against that award.