Kumar v DHL Services Ltd

Where an Employment Tribunal proceeds directly to the second stage of the burden of proof under Equality Act 2010, it must assume that the burden has shifted and decide whether the respondent has proved that race played no part in the treatment. The Tribunal may resolve factual conflicts about the respondent’s explanation and test that explanation against missing documents, training deficiencies, procedures and other evidential matters.

Its reasons must be read as a whole. An isolated use of first-stage language will not establish an error of law where the reasoning shows that the Tribunal scrutinised and accepted a genuine, race-neutral explanation. Adequate reasons explain why the material evidence was accepted and why other matters did not undermine that conclusion.

The claimant, a British-Indian applicant for a first-line manager role, failed at the second interview stage. The interviewer explained that she considered the role a possible downward career step and considered that he had not demonstrated the qualities required for a confrontational and pressurised workplace.

The Birmingham Employment Tribunal dismissed his direct race discrimination claim. By agreement, it proceeded directly to the second stage of the burden of proof under section 136 of the Equality Act 2010, treating the burden as having shifted to the respondent. It accepted the interviewer’s evidence after resolving disputes about the interview and found that her decision was not motivated by race.

The claimant appealed, alleging that the Tribunal had applied the wrong stage of the statutory test, insufficiently scrutinised the respondent’s explanation, failed to draw proper inferences, and given inadequate reasons.

1. Appeal dismissed. Read fairly and as a whole, the Employment Tribunal had adopted the agreed second-stage approach under section 136 of the Equality Act 2010. Its isolated reference at paragraph 73 to an absence of facts from which discrimination could be inferred did not show that it had reverted to the first-stage test.

2. Once the Tribunal assumed that the burden had shifted, the issue was whether the respondent had proved that its decision was in no sense motivated by race. It was entitled, and required, to determine what occurred at the second interview because that issue was material to the genuineness of the explanation advanced by the respondent.

3. The Tribunal permissibly resolved the evidential conflicts. Although the disclosed interview notes were incomplete, they also omitted matters which the claimant accepted had been discussed. The Tribunal was entitled to accept the interviewer’s account that the claimant had described the role as a foothold and had not provided a suitable response concerning the challenging workplace.

4. The Tribunal did not stop at accepting that account. It tested the explanation against the claimant’s reliance on missing notes, lack of equal opportunities material or training, absence of monitoring, pre-action questions and subjective assessment. Those matters might have supported an inference of discrimination, but did not displace the accepted evidence of the actual decision-maker. The respondent had therefore discharged the burden of proof.

5. The reasons were adequate. The Tribunal did more than state a preference between witnesses: it explained how it tested the central evidence, what findings it made, and why the other matters did not alter its conclusion.

• Employment Appeal Tribunal: dismissed the claimant’s appeal from the Birmingham Employment Tribunal.
• Birmingham Employment Tribunal: on 4 August 2016, sent its reserved judgment dismissing the direct race discrimination claim.