Fraser v University of Leicester & Ors

In a discrimination claim involving numerous allegations, an employment tribunal should consider each allegation proportionately while standing back to assess the overall picture. Multiple instances of unreasonable treatment, delay or poor practice do not by themselves require an inference of racial discrimination. The tribunal must decide whether the evidence justifies that inference and an appellate court should not interfere with adequately explained factual findings absent an error of law. Victimisation also requires a causal connection between the detriment and the respondent’s suspicion that the claimant might make a discrimination complaint. Suspicion of an internal discrimination allegation is sufficient; suspicion of a future tribunal claim is unnecessary.

The appellant, a professor at the University of Leicester, brought Employment Tribunal proceedings alleging race discrimination against the university and senior officers. The Tribunal dismissed the claim after considering numerous allegations. The Employment Appeal Tribunal dismissed his appeal in the decision identified as UKEAT/0155/13/DM.

Permission to appeal to the Court of Appeal was refused on paper. The appellant renewed the application orally. The proposed grounds concerned the Tribunal’s cumulative assessment of the allegations and an alleged act of victimisation arising from the handling of complaints against his successor. The central issue was whether either ground disclosed an arguable error of law.

1. Renewed application refused. The Employment Tribunal’s decision was not shown to contain an arguable error of law, and the Employment Appeal Tribunal was correct to reject the proposed grounds.
2. Where a discrimination claim contains many allegations over a long period, the tribunal should give each allegation consideration proportionate to its importance while avoiding an overly fragmented approach. It should stand back and assess the overall picture. The approach endorsed in Rihal v London Borough of Ealing [2004] IRLR 642 was properly reflected in the Tribunal’s reasoning.
3. The number of allegations, or instances of unreasonable treatment, delay and poor practice, does not compel an inference of less favourable treatment on racial grounds. The tribunal must decide whether the facts justify that inference. The Tribunal gave detailed reasons for declining to draw it, and those factual findings were not susceptible to challenge on appeal merely because the appellant disagreed with them.
4. For victimisation, suspicion that the claimant might make a complaint of race discrimination must be connected with the detrimental treatment. Even if the Tribunal’s finding that Professor Thompson was mindful that a black complainant might allege discrimination had been sufficient to establish suspicion, the Tribunal found that his decisions were unrelated to that suspicion or to the claimant’s race. That finding defeated the ground.
5. The court clarified that suspicion that the person concerned intends to make an allegation is sufficient in law; suspicion that a tribunal claim will be issued is unnecessary. The ground also faced independent procedural difficulties: the relevant conduct was raised in an earlier claim in which victimisation had been eschewed, and reliance on it in the later claim would have been out of time, with no just and equitable extension.

1. Court of Appeal (Civil Division). Permission to appeal was refused on paper by Arden LJ on 16 October 2014. The renewed oral application was refused by Lord Justice Bean on 17 March 2015.
2. Employment Appeal Tribunal. The appeal was dismissed by HHJ Eady QC, Professor Mohanty and Mr Yeboah in a reserved judgment handed down on 5 June 2014: UKEAT/0155/13/DM.
3. Employment Tribunal. The race discrimination claim was dismissed by reserved judgment sent out on 30 July 2012.