Stockport Metropolitan Borough Council v K Bonsu

In deciding whether the burden of proof shifts under section 136 of the Equality Act 2010, an employment tribunal must assess the whole factual matrix. It may take account of features forming part of the treatment alleged; it need not artificially separate them from other facts. The observation that more is required than a protected characteristic and different treatment is not a rule of law.

However, a tribunal’s dispositive conclusions on related complaints must be reconcilable. Where an undisturbed finding accepts a complete non-discriminatory explanation for a dismissal, a contrary finding that the same explanation fails for the preceding investigation requires a coherent explanation. Reasons which do not supply that explanation are not Meek-compliant.

The claimant, a black Ghanaian casual support worker, alleged direct race discrimination after the respondent investigated his conduct towards a vulnerable service user and then stopped offering him shifts. His unfair dismissal complaint had earlier been dismissed because he was not an employee.

The Employment Tribunal unanimously dismissed the complaint concerning the decision to investigate. It dismissed, by one majority, the complaints concerning the investigation outcome and cessation of shifts. A different majority upheld the complaint concerning the conduct of the investigation, including the response to allegations of race discrimination raised after the decision had been made.

The respondent appealed only the latter finding. The central question was whether that finding could stand with the tribunal’s undisturbed reasoning on the dismissal complaints.

1. Appeal allowed. The finding that the claimant had been directly discriminated against in the conduct of the investigation was quashed and remitted for fresh determination by a differently constituted Employment Tribunal.

2. The tribunal did not err merely by treating the factual features of the investigation itself as capable of supporting an inference of discrimination for the purposes of section 136 of the Equality Act 2010. The inquiry is fact-specific and concerns the overall circumstances. It is neither necessary nor attractive to divide the alleged treatment into features that may, and may not, be considered at the burden-shifting stage.

3. The finding on the conduct complaint could not be reconciled with the undisturbed majority findings on the investigation outcome and cessation of shifts. Those findings accepted that the respondent acted because it believed the trusted complainant’s account, considered the claimant had not shown the expected insight or contrition, and treated him as a casual worker to whom the fuller employee process did not apply. The same matters were relied on to explain the manner of the earlier meeting and the lack of follow-up after the claimant alleged race discrimination.

4. The tribunal had not found that acceptance of the complainant’s account was itself influenced by race. Its finding that those matters supplied the complete non-discriminatory explanation for the dismissal was therefore irreconcilable with a finding that the same factual features established race discrimination in the investigation. Different majorities deciding the complaints might explain the inconsistency, but could not cure it.

5. Further, the majority on the conduct complaint did not give adequate reasons for reaching a conclusion different from that reached on the dismissal complaints. Its reasoning was consequently not Meek-compliant.

6. The tribunal was also wrong to attach weight to the interview of a worker whose circumstances it had found materially different, without nuanced findings identifying which aspects remained comparable. There was likewise force in the complaint that the respondent had not been alerted to the particular aspect of another worker’s case on which the tribunal ultimately relied.

7. Substitution was inappropriate. Although the inconsistency raised substantial difficulty, it was not logically impossible for a fresh tribunal to reach a consistent conclusion on the conduct complaint. The original tribunal’s unanimous factual findings, and its undisturbed dismissal of the other direct discrimination complaints, remained binding on remission.

• Employment Appeal Tribunal: Allowed the respondent’s appeal, quashed the finding on the conduct-of-investigation complaint, and remitted that complaint for fresh determination by a differently constituted tribunal: [2023] EAT 74.
• Employment Tribunal: Dismissed the unfair dismissal complaint at a preliminary hearing. At the merits hearing, it unanimously dismissed the complaint concerning the decision to investigate; dismissed by majority the complaints concerning the investigation outcome and cessation of shifts; and upheld by a different majority the complaint concerning the conduct of the investigation.