Olatinwo v Qualitycourse Ltd (t/a Transline Group)

In a direct race-discrimination claim, the tribunal must identify each alleged discriminatory act, including any detriment short of dismissal, and identify the person or persons who took or participated in the relevant decision. A person who merely provides information or an opinion does not thereby participate in a decision, but participation is sufficient.

Where the facts are capable, absent explanation, of establishing discrimination, Equality Act 2010 section 136 requires the respondent to prove that it did not contravene the provision. A mistaken or incompetent belief may explain treatment, but does not necessarily answer an allegation that stereotypical assumptions caused the mistake.

The claimant, a Nigerian national with a right to work in the United Kingdom, was employed briefly by the respondent. The respondent required a Home Office check despite documents and guidance indicating that no such check was required. After an inconclusive response, it ended his employment.

The Employment Tribunal dismissed his race-discrimination claim. It treated the treatment as a mistake caused by confusion, inadequate training and failure to understand the documents. The claimant appealed, contending that the Tribunal had failed to determine whether the Compliance Team and Regional Manager participated in the decisions to reject his documents, require a check, and dismiss him, and had misapplied the burden of proof.

1. Appeal allowed. The Employment Tribunal erred in law by failing adequately to identify the acts complained of and the persons who took or participated in the relevant decisions.

2. The claim was not confined to dismissal under Equality Act 2010 section 39(2)(c). It also alleged a detriment under section 39(2)(d), namely the decision to require an immigration-status check rather than accept the claimant’s documents and assurances. The Tribunal should have decided whether that was a detriment and who made or participated in that decision.

3. Applying [2015] ICR 1010, supplying information or an opinion for use in a decision does not alone amount to participation. However, actual participation is sufficient. The Tribunal’s findings required close consideration of whether members of the Compliance Team, and the Regional Manager, participated in the decision to reject the documents and require a check, and possibly in the dismissal decision.

4. The finding that the advisers believed the residence card invalid because it appeared in an expired passport did not dispose of the claim. The Tribunal had to consider why they held that belief despite the claimant’s documents and the Home Office guidance. Error through incompetence can be an explanation, but it is not inevitably inconsistent with discrimination or stereotypical assumptions.

5. For each relevant decision-maker, the Tribunal must determine whether the person took or participated in the decision; whether the facts satisfy section 136(2); and, if so, whether the respondent proves under section 136(3) that it did not discriminate.

6. The Appeal Tribunal could not substitute a finding of discrimination. Under [2014] ICR 920, it had to refrain from its own factual evaluation, and the evidence did not permit only one conclusion. The case was remitted to the same Tribunal to determine the remitted issues afresh, applying [2004] IRLR 763.

• Employment Appeal Tribunal: Allowed the claimant’s appeal and remitted the race-discrimination issues to the same Employment Tribunal.
• Employment Tribunal, East London: On 20 July 2016, dismissed the claimant’s race-discrimination claim.