Kenbata v Unison

A race discrimination claim against a trade union may be struck out as hopeless where the alleged detriment is that a representative raised the member’s own race-discrimination concern. That conduct is not, without more, detrimental when the member had consistently raised the same allegation. The fact that the representative might not have raised it for a white member does not itself establish an inference of discrimination. A permissible finding that the relevant employment decision was not race-related will not be reopened on appeal without grounds. A vexatiousness finding based on a hopeless claim and improper motive may stand where it was not challenged below.

The applicant was employed by Hertfordshire County Council and was dismissed as redundant after a restructuring exercise. He claimed that Unison had discriminated against him by raising the possibility of race discrimination in relation to his position without his permission, alleging less favourable treatment than a white union member and relying on detriment including injury to feelings and loss of confidence.

The Employment Tribunal struck out the claim as hopeless, found it vexatious and ordered costs. The Employment Appeal Tribunal upheld the decisions on liability and vexatiousness, but reduced the costs order from £1,800 plus VAT to £500 excluding VAT. The applicant renewed his application for permission to appeal, contending that the EAT had failed to consider the alleged detriment and that the findings were wrong.

1. Disposition. The renewed application for permission to appeal was refused. The grounds disclosed no point capable of surmounting the relevant threshold for an appeal.
2. Race discrimination claim. The applicant had himself raised the possibility of race discrimination with the employer before and after the conversation recorded on his telephone. The factual assumptions made by the union representative were therefore correct. Applying the approach of Mummery LJ in Madarassy v Numura International [2007] ICR 867, the fact that the representative might not have raised the issue for a white member did not, without more, raise an inference of race discrimination.
3. It could not amount to a detriment for a trade union representative to raise the possibility of race discrimination on behalf of a black union member who had consistently raised that allegation himself. The applicant’s reliance on injury to feelings and loss of confidence did not undermine the EAT’s reasons.
4. The Employment Tribunal had permissibly found that there was no evidence that the applicant’s non-assimilation into the new structure or eventual redundancy was race-related. No grounds had been advanced for the Court of Appeal to interfere with that factual finding.
5. Costs and vexatiousness. The finding that the proceedings were vexatious rested on the claim being hopeless and having been brought with the improper motive of improving the applicant’s potential case against his employer. The finding was made in the Marler sense, referring to Marler v Robertson [1974] ICR 72 at 76E. The applicant had not challenged the relevant finding of motive in his grounds below, so it was not open to him to challenge it on the renewed application.

• Court of Appeal (Civil Division): On 15 May 2015, Lady Justice Sharp refused the renewed application for permission to appeal.
• Employment Appeal Tribunal: His Honour Judge Peter Clark found no error of law in the Employment Tribunal’s strike-out decision and upheld the characterisation of the claim as vexatious. He reduced the costs order from £1,800 plus VAT to £500 excluding VAT.
• Employment Tribunal: The race discrimination claim was struck out as hopeless. The claim was also characterised as vexatious and the applicant was ordered to pay costs.