Kibirango v Barclays Bank Plc & Ors

An Employment Tribunal must give reasons that enable the parties to understand why it reached its material factual findings. A bare preference for one witness over another is insufficient. The Tribunal must explain why the preferred account was accepted, with the degree of explanation depending on the issues and evidence.

In a direct discrimination claim, reasons must engage with material evidence that an employer attributed a black worker's alleged faults to him while protecting a white comparator. It is not enough to describe that evidence as unsupported or as reflecting a distorted perception without explaining its rejection. A failure to give adequate reasons is material where it may affect the assessment of the alleged discriminatory treatment and comparator.

The Appellant, a black African consultant, alleged direct race discrimination after Barclays Bank Plc terminated his engagement. He contended that Mr Clark had unfairly blamed him for work for which a white consultant, Mr Ursell, was responsible and had then dismissed him.

The Employment Tribunal dismissed the claims and made a costs order. It accepted Mr Clark's performance concerns and found that the Appellant's personal remarks about Mr Clark's bereavement preceded, and materially contributed to, the termination decision.

Following Burns/Barke questions, the Employment Appeal Tribunal considered whether the Tribunal had adequately explained its preference for Mr Clark's evidence about events before the meeting of 2 October 2012 and about the timing of the personal remarks.

1. Appeal allowed. The Tribunal's decision and costs order were set aside. The surviving claims were remitted for a rehearing before a freshly constituted Tribunal.

2. A Tribunal's reasons need not be elaborately drafted, and an appellate court must not substitute its factual view. However, the reasons must tell the losing party why the case was lost. A Tribunal cannot discharge that duty merely by stating that it preferred one factual witness to another. It must explain why it accepted the preferred account, consistently with the transparency required by Flannery, Meek and English v Emery Reimbold.

3. The reasons concerning allegations 3 to 8 were materially inadequate. The Appellant had given detailed evidence that faults attributed to him were in fact attributable to Mr Ursell, and that Mr Clark protected Mr Ursell. The Tribunal described that evidence as absent or unsupported without explaining why it was rejected. It also failed to examine whether the asserted performance concerns had an objective foundation. Those matters were capable of bearing on an inference under section 136 of the 2010 Act.

4. The finding that the personal remarks were made before termination was also inadequately reasoned. That finding was central because the Tribunal treated the remarks as the most significant reason for termination and as distinguishing the comparator. The Tribunal's assertion that Mr Clark's later email was the most accurate account was tautologous, and its Burns/Barke response repeated Mr Clark's account without addressing the live timing dispute or explaining its preference.

5. The errors were material. It could not be said that they could not have affected the result, because a fair determination of the merits was still required. Applying the guidance in Sinclair Roche & Temperley v Heard, remittal to a fresh Tribunal was appropriate. The remitted claims were limited to allegations 3 to 11 against the bank and Mr Clark; the claim against Mr Parry could not be revived. The bank was ordered to pay £1,200 in appeal fees.

• Employment Appeal Tribunal: Appeal allowed in [2015] UKEAT 0234_14_2511. The Employment Tribunal's dismissal and costs order were set aside. Allegations 3 to 11 were remitted for rehearing before a fresh Tribunal against the bank and Mr Clark.

• Employment Tribunal: The Tribunal dismissed the direct race discrimination claims and awarded costs of £15,000 against the claimant. Its written decision was signed on 6 February 2014 and its reasons on 19 February 2014.

• Pre-hearing review: Employment Judge Cocks refused strike-out, held that the claims had little reasonable prospect of success, and made a £1,000 deposit order. That decision was not appealed and remained in force.