Iwuchukwu v City Hospitals Sunderland NHS Foundation Trust

In discrimination proceedings, facts capable of supporting a finding of discrimination can shift the burden under Equality Act 2010, section 136. A tribunal may reject an employer’s stated explanation where it is inconsistent with the governing policy and does not provide a complete innocent explanation. A grievance alleging breach of the Act is a protected act. Failure to investigate can be victimisation where its decision was materially influenced by the grievance’s content, even if that was not the sole reason. For unfair dismissal, Employment Rights Act 1996, section 98(4) requires assessment of the dismissal decision in all the circumstances at the time. Earlier employer conduct may be relevant, but is not automatically decisive. The appeal was allowed.

The appellant was a consultant general surgeon employed by the respondent NHS Foundation Trust. Following concerns about his capability and conduct, he was excluded from clinical duties for about 20 months and was dismissed after a capability process. He brought claims including direct race discrimination, victimisation and unfair dismissal.

The Employment Tribunal upheld one aspect of the race discrimination claim, the victimisation claim and the ordinary unfair dismissal claim. The Employment Appeal Tribunal allowed the Trust’s appeal, dismissed the discrimination and victimisation claims, and vacated and remitted the unfair dismissal finding. The central issues before the Court of Appeal were whether the EAT had wrongly interfered with the ET’s burden-of-proof and victimisation findings, and whether it had misapplied the statutory test for unfair dismissal.

Lord Justice Singh gave the leading judgment. Sir Jack Beatson agreed. Lord Justice Davis also agreed, emphasising that the outcome depended on the particular facts and circumstances.

1. Direct race discrimination. The ET correctly directed itself on the reversal of the burden of proof under the Equality Act 2010. It identified facts capable of supporting discrimination, shifted the burden, and rejected the Trust’s explanation that the grievance was out of time because that explanation was inconsistent with the Grievance Policy. The EAT wrongly described this as an unjustified leap of reasoning.
2. The EAT also wrongly required the hypothetical comparator to include the assumption that the Trust regarded the grievance as an attempt to derail capability proceedings. That assumption could not apply to the first grievance, which pre-dated the capability process. Nor was the Trust’s stated view necessarily a complete and innocent explanation untainted by race. The ET’s finding of direct race discrimination was restored.
3. Victimisation. The grievances alleged race discrimination and were therefore protected acts under section 27 of the Equality Act 2010. The refusal to investigate them was a detriment materially influenced by their content. The protected act did not have to be the sole reason. The EAT was not entitled to interfere with the ET’s conclusion.
4. Unfair dismissal. Section 98(4) of the Employment Rights Act 1996 required the ET to assess whether dismissal was reasonable in all the circumstances at the time of the decision. The question was not simply whether the employer had complied with the preceding procedure. The approach in McAdie v Royal Bank of Scotland ([2007] EWCA Civ 806; [2008] ICR 1087) was distinguishable. Earlier employer conduct could be relevant, but was not automatically dispositive. The ET had found unreasonable exclusion, inadequate review and insufficient consideration of remediation and redeployment. The EAT had misunderstood McAdie. The ET’s finding of unfair dismissal was restored.

• Court of Appeal (Civil Division): The appeal was allowed and the Employment Tribunal’s order was restored: [2019] EWCA Civ 498.
• Employment Appeal Tribunal: On 27 April 2018, HHJ Shanks allowed the Trust’s appeal, dismissed the direct race discrimination and victimisation claims, and vacated and remitted the unfair dismissal finding.
• Employment Tribunal, North Shields: By judgment dated 2 November 2016, the ET upheld one aspect of the direct race discrimination claim, victimisation and ordinary unfair dismissal, while dismissing the remaining claims.