K Kohli v Department for International Trade

In a direct discrimination claim, the tribunal must determine the alleged discriminator’s true reason for the treatment, including any conscious or unconscious influence of the protected characteristic. It need not expressly consider subconscious discrimination as a separate issue in every case.

Separate consideration is required only where the evidence and issues make it material. There must be evidence from which such an inference may properly be drawn; a difference in protected status and treatment, without more, is insufficient. Findings that identify genuine, evidence-based and non-discriminatory reasons may leave no room for subconscious discrimination, unless those reasons themselves reflect discriminatory assumptions or stereotypes.

The claimant, who identified as Indian, brought complaints of race and disability discrimination against her employer. The Employment Tribunal dismissed the claims in a judgment sent to the parties on 27 October 2021.

Permission was granted to appeal the dismissal of the direct race discrimination claims. The claimant contended that the Tribunal had failed to address subconscious discrimination, including in relation to decisions about her role, her suitability for a Head of Africa role, and her performance appraisal.

The central issue was whether the Tribunal’s findings and reasoning disclosed an error of law through a failure to consider the possibility of conscious or subconscious race discrimination.

1. Appeal dismissed. The Employment Tribunal made findings about the true reasons for each impugned decision. Those findings were open to it and excluded a finding that the claimant’s Indian origins had consciously or subconsciously influenced the respondent.

2. Under Equality Act 2010, direct discrimination turns on the alleged discriminator’s actual reason for acting. That inquiry includes conscious and unconscious motivation. However, neither Geller nor the governing principles require a tribunal expressly to address subconscious discrimination as a distinct issue in every case. Whether this is necessary depends on the evidence and circumstances.

3. A finding of subconscious discrimination requires evidence from which the inference can properly be drawn. A difference in race and treatment, or unreasonable conduct alone, does not suffice. In particular, where stereotyping is alleged, there must be evidence that a relevant assumption was made and operated in the detrimental treatment.

4. The Tribunal did not commit the error identified in Anya. It did not merely accept witnesses as truthful. It reached reasoned findings that the claimant’s former role had ceased to exist in its prior form; the Head of Africa role was unavailable when she returned and could not simply be reserved for her; the combined role was offered because no suitable full-time alternative existed; and the appraisal grade was appropriate.

5. The Tribunal was entitled to find that the assurance evidence did not support an inference that race affected the claimant’s appraisal. It had also considered the allegations cumulatively rather than impermissibly fragmenting them. Its overall conclusion that no treatment was tainted by race was therefore lawful.

• Employment Appeal Tribunal: Appeal dismissed: [2023] EAT 82.
• Employment Tribunal, London Central: Dismissed the claimant’s race and disability discrimination claims in a judgment sent to the parties on 27 October 2021. The Tribunal refused reconsideration on 25 November 2021.