Aziz v Crown Prosecution Service (Race Discrimination)

An Employment Tribunal does not err by failing to determine a case which was not put before it. Where a pleaded issue was not expressly withdrawn but its precise scope may have become unclear, an appellate court may proceed on the basis that it remained live.

The appeal nevertheless fails if the Tribunal’s findings answer the issue in substance. A finding, reached after proper scrutiny, that the investigation was conducted and its conclusions reached for reasons wholly unrelated to race or any protected act is sufficient to defeat allegations of direct race discrimination and victimisation founded on the investigation’s remit or its interpretation.

The Claimant, a Crown Prosecutor of Asian origin and Muslim faith, brought claims of race discrimination and victimisation concerning a report produced by Mr Peter Lewis after earlier discrimination proceedings. She alleged that his appointment, the narrow remit of his investigation, its conduct and its conclusions were discriminatory or victimising.

The Newcastle Employment Tribunal dismissed the claims. On appeal, the only permitted ground was whether that Tribunal had failed to address a distinct allegation that the Respondent set an unduly narrow investigative remit, or that Mr Lewis interpreted it too narrowly, and that this was itself unlawful discrimination or victimisation.

1. Appeal dismissed. The Employment Appeal Tribunal was not persuaded that the Claimant’s complaint about the narrowness of the remit had been clearly pursued as a separate issue before the Employment Tribunal. The Tribunal had attempted to clarify her case and was entitled not to formulate an alternative case for her.

2. However, the point had been foreshadowed in the ET1 and witness statement and had not been expressly withdrawn. Proceeding on the basis that it remained live, the Employment Appeal Tribunal held that the Tribunal had in substance determined it.

3. The Tribunal had considered whether discrimination or victimisation explained the investigation’s conduct and conclusions. It accepted that the remit was not as broad as it might have been, but found the Respondent’s narrower disciplinary focus understandable because the earlier tribunal findings had already been made and upheld.

4. The Tribunal had scrutinised Mr Lewis’s reasoning rather than merely accepting him as credible. It found that his criminal-prosecutor approach explained his restrictive understanding of his remit and his failure to investigate whether particular advice had been given on racial grounds.

5. Its ultimate finding was that Mr Lewis conducted the investigation and reached its conclusions in no sense, including subconsciously, because of the Claimant’s race, another racial ground, or a past or anticipated protected act. That finding necessarily answered the alleged discriminatory or victimising effect of either setting or interpreting a narrow remit. No error of law was established.

• Employment Appeal Tribunal: appeal dismissed against the Newcastle Employment Tribunal’s reserved judgment, sent with reasons on 4 July 2013.
• Employment Tribunal: the Claimant’s claims of direct race discrimination and victimisation concerning the Lewis investigation were dismissed as not well-founded.