Tyne And Wear Passenger Transport Executive v T/A Nexus & Ors (RACE DISCRIMINATION)

An Employment Tribunal must give adequate and intelligible reasons when resolving a material conflict of evidence in a discrimination claim. It is insufficient simply to state that one witness’s account is preferred, particularly where the evidence contains apparent inconsistencies.

After resolving the disputed facts, the Tribunal must assess the employer’s explanation holistically and apply the burden of proof. The inquiry must address whether discrimination, whether conscious or subconscious, may be inferred from all relevant circumstances.

The Claimant, a Black lettings negotiator, was dismissed after a short period of employment. He alleged direct race discrimination and relied, among other matters, on a disputed dismissal comment: that the dismissing director said that he was not right for him.

The Employment Tribunal rejected that allegation and dismissed the discrimination claim. It found the director’s denial consistent, despite documents and the internal appeal process which appeared capable of supporting the Claimant’s account.

The Claimant appealed. The central issues were whether the Tribunal had adequately explained its factual finding and whether that error infected its assessment of the employer’s explanation and the discrimination claim.

1. Appeal allowed and claim remitted. The Employment Tribunal erred in finding that the disputed dismissal comment had not been made without adequately explaining why it regarded the director’s denial as consistent.

2. The evidence included the Respondents’ pleaded case, the director’s written material, the internal appeal notes, and the appeal officer’s conclusion. Taken together, that material disclosed apparent inconsistencies. The Tribunal could potentially have found that the words were not said, but it had to identify the conflicting evidence, explain what it found had been said at the relevant stages, and give clear reasons for preferring one account.

3. That obligation was especially important in a race discrimination case. Discrimination is seldom overt and may be conscious or subconscious. A Tribunal must go beyond listing evidential issues and reach a reasoned conclusion on them.

4. The erroneous factual finding also affected the discrimination analysis. If the comment was made, the Tribunal had to assess the explanation for it as part of the employer’s overall explanation for dismissal. If it was not made, the apparent inconsistencies in the Respondents’ evidence still required consideration when deciding whether an inference of discrimination should be drawn. The Tribunal was required to apply the burden of proof after that assessment.

5. Remittal to the same Tribunal was proportionate. Its decision was not wholly flawed, there was no allegation of bias or lack of professionalism, and a fresh hearing would carry costs. On remission, the Tribunal was to reconsider the disputed comment with an open mind, give clear reasons, and revisit the ultimate discrimination conclusion.

• Employment Appeal Tribunal: appeal allowed. The Employment Tribunal’s decision, sent to the parties on 1 February 2017, was remitted to the same Tribunal for reconsideration in accordance with the EAT’s guidance.
• Employment Tribunal, London South: dismissed the Claimant’s direct race discrimination claim.