Staph v Norgren European Logistics Company Ltd (Race Discrimination)

An Employment Tribunal considering numerous alleged discriminatory acts must assess each allegation and also stand back to consider their cumulative effect. A series of acts which are not individually discriminatory does not become discriminatory merely by accumulation, although the overall picture may reveal conscious, unconscious or subconscious discrimination.

Where a discriminatory constructive dismissal claim is pleaded solely through specified allegations, its rejection may follow from findings that those allegations disclose no discrimination individually or cumulatively. A failure expressly to address that separate head of claim is capable of criticism, but a reconsideration decision may cure the omission if, read with the original reasons, it enables the parties to understand why the claim failed.

The claimant, who is black and of African origin, was employed by the respondent as its Chief Information Officer from September 2013 until his resignation in March 2015. He brought 48 allegations of direct race discrimination and harassment. He contended that their cumulative effect amounted to a discriminatory constructive dismissal.

The Employment Tribunal rejected every allegation, both individually and cumulatively. Its merits judgment did not expressly determine the constructive dismissal claim. On reconsideration, however, it stated that the claim necessarily failed because it had found no discrimination under section 13 of the Equality Act 2010.

The claimant appealed on the ground that the Tribunal had failed to determine, or adequately explain its rejection of, the discriminatory constructive dismissal claim.

1. Appeal dismissed. The Employment Tribunal had failed expressly to address a distinct pleaded head of claim in its merits reasons. That omission was properly open to criticism, because it could suggest that the claim had been overlooked.

2. The claimant's case was nevertheless confined, after particularisation in the Scott Schedule, to the 48 alleged discriminatory acts. The Tribunal had determined every one of those allegations. It had also stood back and considered whether the conclusions as a whole disclosed discrimination. That was the required cumulative assessment, including the possibility of unconscious or subconscious discrimination.

3. An accumulation of incidents which do not amount to unlawful discrimination cannot establish discrimination merely by weight of numbers. The cumulative picture may, however, provide a materially different perspective and may reveal a discriminatory taint which is not apparent from separate incidents.

4. The Tribunal's reconsideration judgment made explicit what had previously been implicit: the discriminatory constructive dismissal claim failed because the acts on which it depended had been rejected both individually and collectively. Read together with the merits reasons, that explanation was adequate. The parties could understand why the claimant had lost, and no material error of law arose from the original omission.

• Employment Appeal Tribunal: dismissed the claimant's appeal against the Employment Tribunal's merits judgment and its subsequent reconsideration decision.
• Employment Tribunal: merits judgment sent on 19 October 2015 rejected the claimant's 48 allegations of direct race discrimination and harassment. A further judgment sent on 20 November 2015 refused reconsideration and clarified that the discriminatory constructive dismissal claim also failed.