Essex County Council v Jarrett

Direct race discrimination under section 13 of the Equality Act 2010 requires less favourable treatment, not merely unfair, unreasonable or detrimental treatment. Save where the discriminatory criterion itself supplies the comparison, a tribunal must identify and assess an actual or hypothetical comparator. It must also determine whether any actual comparator was in materially the same circumstances.

Where section 136 is approached in stages, the burden of proof must be considered separately for each allegation. Findings across other allegations may be relevant, but an unreasoned blanket reversal of the burden is erroneous. Victimisation requires evidence, or a properly reasoned inference, that the alleged discriminator knew of the protected act. The same conduct cannot constitute both harassment and a detriment for direct discrimination where section 212 applies.

The claimant, a Black African solicitor employed by Essex County Council, brought claims of race discrimination, harassment, victimisation, unfair dismissal and breach of contract after a restructuring led to her dismissal for redundancy. Her principal complaint was that she was not appointed to lead the Employment team, a post given to a white employment-law specialist.

An Employment Tribunal at Colchester upheld a number of discrimination allegations, found victimisation and harassment, and decided liability by reasons delivered on 19 September 2014. The Council appealed. It contended that the Tribunal had not conducted the required comparative exercise, had shifted the burden of proof across all allegations, had made material factual errors, and had erred on victimisation and harassment.

The central issue was whether the Tribunal had applied the statutory requirements for comparison, burden of proof, victimisation and harassment.

1. Appeal allowed. The liability decision could not stand. The surviving claims were remitted for a complete rehearing before a freshly constituted Employment Tribunal.

2. For direct discrimination, section 13 required the Tribunal to determine whether the claimant had received less favourable treatment than an actual or hypothetical person of a different race. Detrimental, inappropriate or irrational treatment was insufficient. The Tribunal had dealt with 28 allegations by asking whether they caused detriment, but had not addressed the pleaded actual comparators or the characteristics of a hypothetical comparator.

3. The one express comparison, with Ms Thomas for the Employment team-lead post, was also deficient. The Tribunal had to determine under section 23 whether the claimant and Ms Thomas were in materially the same circumstances. It had not evaluated the potentially material facts that Ms Thomas had applied for the role and was an employment specialist, whereas the claimant had not applied and was not such a specialist.

4. The Tribunal erred by reversing the section 136 burden of proof across all allegations at once. Each allegation was a separate complaint. Other substantiated allegations could inform the assessment, but the Tribunal had to decide separately whether the facts concerning that allegation justified a reversal. Some findings relied upon to shift the burden were also unsupported or insufficiently reasoned.

5. The victimisation finding could not stand. Dismissal preceded the protected act of issuing the claim form. As to the earlier complaint of race discrimination, there was no evidence, or stated basis for an inference, that Mr Thomson knew of it. Knowledge was necessary before his conduct could be because of that protected act.

6. By agreement, the Tribunal had also erred in treating the same conduct as both harassment and discrimination contrary to section 212(1). Its harassment reasoning additionally failed to analyse the claimant’s perception, the surrounding circumstances and the reasonableness requirement in section 26(1)(b).

• Employment Appeal Tribunal: allowed the Council’s appeal and remitted the claims to a fresh Tribunal.
• Employment Tribunal, Colchester: decision on liability, with reasons delivered on 19 September 2014; findings of discrimination, victimisation and harassment were challenged on appeal.