Kowalewska-Zietek v Lancashire Teaching Hospitals NHS Foundation Trust (Race Discrimination)

An Employment Tribunal does not invariably err by deciding the real reason for impugned treatment without expressly working through the two stages of the burden of proof under section 136 of the Equality Act 2010. That course is permissible where the Tribunal can make positive findings on all the evidence that treatment was not because of race.

Nevertheless, allegations of discrimination require careful scrutiny. A Tribunal should not too readily accept mistake, oversight or incompetence as an explanation, particularly where the evidence suggests that one employee alone has suffered the adverse treatment. Reasons are sufficient if they address the central issue, explain why the claim failed and permit appellate review; they need not resolve every evidential difference.

The Claimant, a Polish-trained consultant neurologist, brought eight complaints of direct race discrimination and one complaint of harassment against her NHS employer. The complaints concerned restrictions on her clinical duties, delayed disclosure of information and a report, alleged reliance on assumptions about Polish training, and the handling of patient complaints.

The Manchester Employment Tribunal dismissed every claim. It found that the relevant treatment resulted from non-discriminatory reasons, including a Deanery recommendation, oversight, and the handling of patient complaints. It also declined to extend time.

The Claimant appealed, principally contending that the Tribunal had failed to apply the statutory two-stage burden of proof, inadequately explained its conclusions, and wrongly attributed conduct to a decision-maker's lack of attention to detail.

1. Appeal dismissed. The Tribunal was entitled to determine, on the evidence as a whole, the actual reason for each act of treatment and to find that race played no part. Its failure to state an express two-stage analysis under section 136 of the Equality Act 2010 was not an error of law.

2. The statutory burden provisions may provide useful discipline. A Tribunal should recognise that, absent an adequate explanation, facts permitting an inference of discrimination require a finding of discrimination. It should scrutinise an employer's explanation carefully. But a direct finding that the reason was, or was not, race may be the sensible course, especially where the comparison is hypothetical and the Tribunal can make positive findings.

3. The Tribunal's reasons met the standard in Meek. The central issue was why the Claimant had received the treatment. The Tribunal identified non-racial reasons for the restrictions, omissions, delay and handling of complaints. Its description of the Medical Director as lacking attention to detail was imprecise, but was capable in context of explaining that his evidence and conduct were muddled or careless. The findings were permissible.

4. Unreasonable, unpleasant or careless treatment is not thereby discriminatory. The Tribunal could find that oversights and delays were not caused by nationality. However, the Appeal Tribunal cautioned that this explanation demands closer scrutiny where the evidence suggests that one employee alone was treated badly. In an appropriate case, comparative evidence of how others were treated may be required.

• Employment Appeal Tribunal: Appeal dismissed.
• Employment Tribunal, Manchester: On 23 December 2014, dismissed eight complaints of direct race discrimination and one complaint of harassment.