Mechkarov v Citibank NA

An Employment Tribunal’s reasons must enable the parties to understand why they won or lost. They need not address every point or display refined drafting. Their adequacy is assessed in the context of the findings as a whole, including findings on credibility and witness motivation.

Under Equality Act 2010 section 27, victimisation requires a protected act and a detriment because of it, or because the alleged discriminator believes that the person has done or may do such an act. Section 27(1)(b) can therefore cover detriment imposed in anticipation of a future protected act. A person’s expression of their own perceived disadvantage, without a complaint that another person discriminated against them, is not a protected act.

The claimant, a Bulgarian former employee of the respondent bank, brought claims of direct race discrimination and victimisation arising from meetings with former colleagues after his employment had ended.

An Employment Tribunal dismissed the claims following a six-day hearing. The claimant appealed, challenging the Tribunal’s rejection of allegations concerning meetings in August and November 2014 and its findings that later comments did not amount to protected acts for victimisation purposes.

The central issues were whether the Tribunal’s findings and reasons were perverse or legally inadequate, and whether the claimant had established protected acts and detriments under Equality Act 2010 section 27.

1. Appeal dismissed. None of the surviving grounds disclosed an error of law. The Tribunal was entitled to reject the alleged acts of direct race discrimination arising from the meetings with Ms Pierre.

2. The Tribunal’s reasons were sufficient when read as a whole. Its general adverse credibility finding against the claimant, and its positive findings about Ms Pierre’s truthfulness and motivation, informed its conclusions on the individual allegations. Although a Tribunal should say more than that it preferred one witness to another, it need only explain its conclusions sufficiently for the parties to understand the result. The Tribunal did not have to address every evidential point: see Anya v University of Oxford [2001] ICR 847.

3. The Tribunal may have confused an August meeting with a text message sent in November when considering one allegation. Any error was immaterial. The later message was potentially relevant to whether Ms Pierre would have raised the claimant’s Bulgarian background unprompted. The Tribunal’s concise rejection of allegations from the November meeting was also adequate in the context of its wider findings.

4. The Tribunal’s observations on post-employment conduct under Equality Act 2010 section 108 did not provide an independent basis for rejecting the appeal. Its reasoning on the statutory close-connection requirements was unclear, and the Employment Appeal Tribunal did not determine how those requirements would apply if remission became necessary.

5. For victimisation, section 27(1)(a) requires the detriment to follow the protected act. Section 27(1)(b), however, includes action taken because the alleged discriminator believes that the claimant may do a protected act. Even so, the claimant’s victimisation claims failed because every alleged detriment relied upon had already been rejected as an act of direct discrimination.

6. In any event, the Tribunal was entitled to find that the claimant had not complained of discrimination at the meetings relied on as protected acts. His statement that he was a low-paid Bulgarian immigrant expressed his own perceived inequality. It did not allege discriminatory treatment by another person and could not constitute a protected act.

• Employment Appeal Tribunal: dismissed the claimant’s appeal from the reserved Employment Tribunal judgment of 19 March 2018.

• Employment Tribunal (East London): dismissed the claimant’s post-termination claims for direct race discrimination and victimisation after a six-day hearing in November 2017.

• Employment Appeal Tribunal: in May 2016, Mitting J allowed an earlier appeal against the striking-out of the post-termination discrimination claims and remitted the strike-out application.

• Employment Tribunal: on 10 August 2015, Employment Judge Warren upheld the settlement agreement, rejected or time-barred earlier claims, and struck out the post-termination discrimination claims. The subsequent appeal restored the latter claims for trial.