Nikolova v M & P Enterprises London Ltd (Race Discrimination: Direct)

In a direct race-discrimination claim, an Employment Tribunal may determine the reason why the claimant was treated as she was before resolving questions about a hypothetical comparator. The protected characteristic need not be the sole or main cause, but there must be material from which the Tribunal can infer that it was an effective cause.

An employer’s exploitation of a worker’s economic or other vulnerability does not, without more, establish discrimination because of race. Adequate reasons are given where the Tribunal’s decision, read fairly and as a whole, explains why it found that vulnerability rather than nationality caused the treatment.

The Claimant, a Bulgarian national employed as a hotel cleaner, succeeded before the Employment Tribunal on claims concerning pay, statutory particulars, dismissal and related matters. Her direct race-discrimination claim under Equality Act 2010 was dismissed unanimously.

The Tribunal found that the Respondent had exploited employees who accepted poor pay and conditions, but concluded that the treatment arose from economic vulnerability and word-of-mouth recruitment rather than Bulgarian nationality. The Claimant appealed, contending that the Tribunal had failed to apply the correct direct-discrimination test, identify a proper hypothetical comparator, and give adequate reasons.

1. Appeal dismissed. The Employment Tribunal gave sufficient reasons for dismissing the direct race-discrimination claim.

2. Under section 13 of the Equality Act 2010, the central issue was whether the Claimant’s Bulgarian nationality was an effective cause of the alleged treatment. Race need not be the sole or predominant cause, but the Tribunal had to be able to draw that inference from the facts.

3. Following the approach described in Shamoon v Chief Constable of Royal Ulster Constabulary [2003] UKHL 11, the Tribunal was entitled to address the reason for the treatment before resolving the hypothetical-comparator issue. It had correctly directed itself and had carefully evaluated the disputed evidence.

4. Read fairly, the Tribunal’s reasons explained that the Respondent would exploit any worker who was vulnerable enough to accept the conditions, regardless of the source of that vulnerability. The Claimant’s treatment was therefore found to result from her economic position, not from nationality. The prevalence of Bulgarian cleaners was rationally explained by word-of-mouth recruitment, while other cleaners included British citizens and replacements included a Greek woman and a Bulgarian man.

5. Although the Tribunal’s final reasoning was discursive and elliptical, it was adequate to enable the Claimant to understand why her claim failed. There was insufficient material from which the Tribunal was required to infer treatment because of Bulgarian nationality.

• Employment Appeal Tribunal: dismissed the Claimant’s appeal and upheld the dismissal of the direct race-discrimination claim.
• Employment Tribunal, London (Central): in a judgment sent to the parties on 18 May 2015, upheld the Claimant’s other claims by a majority but unanimously dismissed the race-discrimination claim.