CP Regents Park Two Ltd v Ilyas

For direct discrimination, an Employment Tribunal must identify both less favourable treatment and the reason for it. Actual comparators need not be identical, but any differences must be material at the time of the treatment. Other employees may also assist in constructing a hypothetical comparator.

Unreasonable or aggressive treatment, coupled with a difference in race, does not itself establish discrimination. The Tribunal must consider any explanation for the treatment. A finding that shared race or nationality caused an assumption of complicity may, however, support a finding of direct discrimination when it explains the prejudged and hostile manner of an investigation.

Where a later disciplinary referral follows inadequate exculpatory answers, the comparison must reflect that material circumstance.

The Claimant, a receptionist and shift leader of Pakistani racial and national origin, was investigated after another employee of Pakistani origin admitted misappropriating company money. The Employment Tribunal dismissed his unfair dismissal claim and found that the eventual dismissal was not tainted by race. It nevertheless upheld claims of direct race discrimination concerning the aggressive manner of the investigation meeting and the subsequent referral into disciplinary proceedings.

The employer appealed. It challenged the Tribunal’s approach to comparators, the burden of proof, the significance of questions about the Claimant’s shared Pakistani origin with the other employee, and perversity. The Claimant resisted the appeal only in relation to the manner of the investigation meeting.

The central issues were whether the findings supported direct discrimination in each of the two distinct acts, and whether the proper comparator changed once the investigation had produced inadequate responses from the Claimant.

1. Appeal allowed in part. The finding that the manner of the investigation meeting was direct race discrimination was upheld. The finding that referral to the disciplinary process was discriminatory could not stand.

2. Under section 13(1) of the Equality Act 2010, an actual comparator must be in circumstances not materially different from those of the claimant under section 23(1). The other receptionists could properly be considered in relation to the manner of the initial investigation. Their seniority, transaction histories and answers were not material differences at the point when, on the Employment Tribunal’s findings, the managers had already prejudged the Claimant’s guilt. In any event, they could assist as evidential comparators when constructing a hypothetical comparator.

3. The Employment Tribunal did not infer discrimination merely from unreasonable treatment. It found an unduly aggressive and inappropriate meeting, then considered why it had been conducted in that manner. The managers’ assumption that the Claimant was linked to the admitted wrongdoer was found to derive from their shared race or nationality. The employer did not provide an alternative explanation for the hostile manner of questioning. That conclusion was open to the Employment Tribunal.

4. The decision did not create a rule preventing an employer from asking about a shared country of origin. The unlawful feature was the context: the assumption of complicity because of shared race or nationality, which infected the tenor of the meeting. The reference to the Claimant’s visa application was evidential context, not an impermissible equation of immigration status with race or nationality.

5. For the disciplinary referral, however, the Claimant’s inadequate answers during the investigation were a material difference from the position of the other receptionists. The relevant comparison was therefore with an employee who had also failed to give adequate exculpatory responses. The Employment Tribunal did not sufficiently address whether such an employee would have been treated less favourably. Its conclusion on this discrete act was unsafe. The parties were directed to make written submissions on disposal.

• Employment Appeal Tribunal: Allowed the employer’s appeal in part. It upheld the finding of direct race discrimination in the manner of the investigation meeting, but held unsafe the finding concerning referral to disciplinary proceedings.
• London Central Employment Tribunal: By a judgment sent to the parties on 6 February 2014, dismissed the unfair dismissal claim, upheld the two identified direct race discrimination claims, and rejected any allegation that the dismissal decision itself was tainted by race or nationality.