Kansal v Tullett Prebon Plc & Ors

For direct discrimination under Equality Act 2010, a tribunal must identify the less favourable treatment, the relevant actual or hypothetical comparator, and the reason for the treatment. It may proceed directly to the reason why, but must then determine the actual reason. It cannot exclude race conclusively merely because others sharing the claimant’s ethnicity received favourable treatment; that is relevant evidence only.

Discrimination allegations must ordinarily be assessed in the context of the evidence as a whole. Race need only be an effective cause, not the sole or principal cause. In victimisation, detriment is assessed objectively by asking whether a reasonable worker might regard the treatment as disadvantageous. A just and equitable extension of time requires consideration of the claimant’s explanation for delay.

The Employment Tribunal rejected two complaints of direct race discrimination concerning exclusion from transactions and an instruction not to work from home. It nevertheless upheld several harassment and victimisation complaints arising from the conduct of the alleged discriminator.

The claimant appealed the rejection of those direct-discrimination complaints and a complaint that his discretionary bonus was too low because of protected acts. The respondents cross-appealed a finding of victimisation arising from their post-employment disciplinary process and the extension of time for harassment complaints.

The central issues were whether the Tribunal had correctly applied the statutory direct-discrimination inquiry, whether the bonus decision was a detriment, and whether it had properly exercised its just and equitable discretion to extend time.

1. Appeal allowed in part; cross-appeal allowed in part. The dismissal of the two direct race-discrimination complaints was set aside and remitted. The appeal concerning the bonus was dismissed. The cross-appeal against the victimisation findings was dismissed, but the cross-appeal on time succeeded.

2. Under sections 13 and 23 of the Equality Act 2010, the Tribunal had to determine whether the claimant had received less favourable treatment than an actual or suitable hypothetical comparator, and why. It did neither adequately. A tribunal may proceed directly to the reason why conduct occurred, but it must then find that reason. The Tribunal instead found only that race was not the reason.

3. The fact that employees of a similar Indian ethnicity participated in transactions was relevant but could not conclusively establish that the claimant’s exclusion was unrelated to race. The Tribunal also failed to address the evidence concerning a comparator who had worked from home. It had to assess the allegations against the whole evidential context, including its findings about the alleged discriminator’s conduct. Race need only have been an effective cause; it need not have been the primary cause.

4. The claimant did not establish a detriment in receiving a bonus of £28,643. Detriment requires an objective assessment of whether a reasonable worker might regard the treatment as disadvantageous. The agreed issue concerned the amount of the bonus, and the Tribunal was entitled to find that the claimant had not shown he should have received more. Its alternative reasoning on causation was unsound, but immaterial.

5. The Tribunal was entitled to infer from the unusual disciplinary process, timing, and communications to the FCA that the respondents’ conduct was retaliatory. That conclusion involved factual evaluation and disclosed no error of law.

6. In extending time, however, the Tribunal had not identified or evaluated the claimant’s explanation for delay. Absence of prejudice could not cure that omission. The direct-discrimination and limitation issues were remitted to the same Tribunal, with scope for applications to adduce further evidence.

• Employment Appeal Tribunal: appeal and cross-appeal determined in [2017] UKEAT 0147_16_2007. The direct-discrimination and limitation rulings were remitted to the same Employment Tribunal.
• Employment Tribunal, London (Central): on 22 October 2015, rejected the direct and indirect race-discrimination claims, upheld a number of harassment, victimisation and protected-disclosure detriment complaints, and extended time for harassment complaints.