Ahmed v Ministry of Justice

For direct discrimination, the decisive question is why the alleged discriminator acted as he did. The protected characteristic must have been a conscious or unconscious, significant part of that decision-maker’s reason. A mere causal link between race and events leading to the decision is insufficient.

Under Equality Act 2010, a discrete act is ordinarily subject to the three-month limit. A just and equitable extension requires consideration of all relevant circumstances, especially prejudice, but the Keeble factors are guides rather than a compulsory checklist. In discrimination cases, tribunals must assess the totality of established primary facts when deciding the linked questions of less favourable treatment and discriminatory reason.

The claimant, a legal team manager in the Magistrates’ Courts, alleged race discrimination, harassment and victimisation after he was moved from the Waltham Forest and Redbridge Group to the East Group following concerns connected with fraud at Redbridge Magistrates’ Court.

The Employment Tribunal, by a judgment dated 18 March 2014, found that the move was discriminatory but dismissed that complaint as out of time and refused a just and equitable extension. It rejected the remaining discrimination claims. The claimant appealed the time ruling and alleged that the Tribunal had failed to consider the evidence cumulatively. The respondent contended that the finding of direct discrimination concerning the move rested on an incorrect legal test.

1. Appeal dismissed. The Employment Tribunal’s dismissal of all claims stood because the claim concerning the move was out of time and its refusal to extend time disclosed no error of law.

2. The Tribunal had nevertheless applied the wrong test when it found that the move was direct race discrimination. Under section 13(1) of the Equality Act 2010, the question was why the actual decision-maker, Mr Eccles, decided to move the claimant. Race had to be a conscious or unconscious, significant part of his reason. It was not enough that race was linked or related to events which influenced the decision.

3. The Tribunal had found that Mr Eccles acted on a mistaken suspicion, while the racial element lay in Ms Smith’s earlier failure to dispel suspicion. As it had not found that Mr Eccles himself acted because of race, the finding against him could not stand. Had the point been determinative, the finding would have been set aside and remitted because the correct question had not been answered.

4. The move was a single act. Since the other alleged acts had failed, there was no conduct extending over a period under section 123(3). The Tribunal permissibly considered the long and unexplained delay, the claimant’s ability to obtain advice, and prejudice caused by fading recollection. Its evaluation of the just and equitable discretion was not perverse.

5. The Tribunal had considered the whole picture in resolving the disciplinary-proceedings allegation. Its finding that Ms Smith played no part in that later decision provided a tenable basis for distinguishing it from the move. The postscript noted that earlier discriminatory acts or omissions underlying a decision may themselves be unlawful, but that point did not affect the result.

• Employment Appeal Tribunal: appeal dismissed. The Tribunal’s dismissal of the claims was upheld.
• Employment Tribunal, London: judgment dated 18 March 2014. It found the move discriminatory but dismissed that complaint as out of time and rejected the remaining claims.