Ukeh v Ministry of Defence (Race Discrimination)

Where an Employment Tribunal makes positive findings that the impugned treatment was fully explained by genuine, non-racial reasons, it need not mechanically apply the two-stage burden-of-proof process under section 136 of the Equality Act 2010. The Tribunal must consider the evidence as a whole, but a holistic approach does not require an inference of discrimination where its findings disclose neither unjustified treatment nor a cumulative pattern capable of supporting that inference.

In direct discrimination claims, a tribunal may concentrate on the reason why the claimant was treated as they were rather than engage in an artificial comparator exercise. A harassment claim fails at the first stage if the alleged unwanted conduct was not related to race. A complaint is not a protected act where the tribunal finds that it was understood to allege non-racial harassment.

The claimant, a black British Army medical officer of Nigerian origin, failed the Professionally Qualified Officer course at Sandhurst. She was not permitted to retake it and was discharged from the Army. She alleged direct race discrimination, racial harassment and victimisation in relation to assessments, instructors' conduct, the refusal of a retake and her discharge.

The Watford Employment Tribunal dismissed all claims in reasons sent to the parties on 5 February 2014. It found that the claimant had comprehensively failed the course for performance reasons and that the alleged treatment was not because of race.

On appeal, the claimant contended that the Tribunal had fragmented the evidence, mishandled the burden of proof and comparators, wrongly rejected her service complaint as a protected act, and failed properly to determine harassment.

1. Appeal dismissed. The Employment Tribunal made permissible and supported findings that the claimant was not singled out for hostile or unjustified treatment. In most instances she was treated as others would have been in similar circumstances. Where there was differential treatment, the Tribunal accepted a complete and innocent explanation unrelated to race.

2. The two-stage process under section 136 of the Equality Act 2010 is not obligatory. It is unnecessary where the Tribunal can make positive findings about the reason for treatment. A genuine non-racial explanation which fully explains the treatment ends the discrimination issue. On the Tribunal's findings, shifting the burden could not have changed the result.

3. The Tribunal had considered the factual case as a whole. This was not analogous to X v Y, where findings of unfair treatment required a further holistic assessment of whether discrimination explained them. Here there were no cumulative findings of unjustified treatment from which such an inference could arise.

4. The Tribunal was entitled to focus on the reason why the claimant failed the course and was refused a retake. Its findings established that comprehensive poor performance was the primary reason. The subsidiary concern that she blamed others was also unrelated to race. The proposed comparator was in a different platoon and assessed by a different person; in any event, the Tribunal's findings on the actual reasons for treatment resolved the complaint.

5. The claimant's service complaint was not a protected act. The Tribunal was entitled to find that she twice said that she was alleging non-racial harassment, and that the relevant officers neither believed that she had done a protected act nor thought she was likely to do so.

6. The harassment ground also failed. Separate findings on every component of harassment are not invariably required. The Tribunal's findings showed that the alleged conduct was either not proved or was not related to race. There was therefore no need to consider its purpose or effect.

• Employment Appeal Tribunal: dismissed the claimant's appeal.
• Employment Tribunal (Watford): dismissed all claims of unlawful discrimination in reasons sent to the parties on 5 February 2014.