Henna Jaleel v Southend University Hospital NHS Foundation Trust

Under section 136 of the Equality Act 2010, a claimant must first establish facts from which a reasonable tribunal could properly infer discrimination in the absence of another explanation. A difference in protected status and adverse treatment alone will not necessarily suffice. The assessment is fact-specific and must take account of all pertinent evidence.

Where the tribunal has correctly directed itself and evaluated whether the initial burden shifts, an appellate court may intervene only for legal error or perversity. Unwanted conduct, or conduct constituting a breach of trust and confidence, does not by itself establish that harassment was related to race.

The claimant, an Asian and Pakistani consultant, held an additional fixed-term appointment as Director of Medical Education. When the appointment was readvertised at the end of its term, she applied. At interview she discovered that her line manager, against whom she had an unresolved grievance, was on the panel. He and an HR manager initially refused her request that he withdraw.

The employment tribunal upheld her constructive unfair-dismissal claim, finding that the interview conduct was a repudiatory breach of trust and confidence. It dismissed her claims of direct race discrimination concerning the readvertisement and harassment related to race concerning the interview. It held that she had not discharged the initial burden of proof under section 136 of the Equality Act 2010. A reconsideration application failed.

The appeal challenged the tribunal’s conclusion that the burden had not shifted to the respondent.

1. Appeal dismissed. The tribunal correctly directed itself on the statutory burden of proof and was entitled to conclude that it had not shifted in respect of either complaint.

2. Section 136 requires a claimant initially to establish facts from which a reasonable tribunal could properly infer discrimination if there were no other explanation. The statutory test lowered, rather than raised, the former threshold for drawing an inference. It did not displace ordinary principles governing inferences from primary facts. Whether the burden shifts is a fact- and context-sensitive assessment.

3. The tribunal was entitled to reject the proposition that the claimant’s race, combined with the readvertisement of her fixed-term role, automatically shifted the burden. The former holder’s materially different circumstances, the evidence concerning other appointments, and the alleged inconsistency in the respondent’s explanations did not make the contrary conclusion perverse. Once the burden had not shifted, the tribunal was not obliged to make an express finding of the respondent’s reason for readvertising.

4. The finding that the conduct at interview was unwanted, improper and sufficiently serious to breach the implied term of trust and confidence did not establish the separate element that it was related to race. The tribunal was entitled to treat the conduct as connected to the claimant’s grievance and the apparent conflict of interest, rather than infer a racial connection. Its conclusion that the burden did not shift as to either panel member was not perverse.

5. The tribunal had considered the overall factual context and was not required to rehearse every item of evidence or submission in its reasons.

• Employment Appeal Tribunal: Appeal dismissed: [2023] EAT 10.
• Employment Tribunal: Upheld the claimant’s constructive unfair-dismissal complaint, but dismissed her discrimination, harassment and victimisation complaints. It subsequently refused reconsideration of the two complaints in issue.