Solomon Demba v Care UK Community Partnerships Ltd

A finding that treatment was not because of race does not, without more, determine a distinct claim of victimisation. Under Equality Act 2010, section 27(1), the tribunal must determine whether the claimant was subjected to the detriment because they did a protected act.

Where a tribunal has failed to apply that distinct test, an appellate court should ordinarily require fresh consideration. It will decline to do so only where the same result is inevitable on the findings already made. A finding that an employer wished to avoid the delay and cost associated with resolving a grievance may be highly material to whether the protected act was a reason for the detriment.

The appellant, a registered nurse, accepted a conditional offer of employment from the respondent. Following delays concerning his DBS check and references, he raised a grievance alleging race and age discrimination. The respondent later withdrew the offer.

The Employment Tribunal dismissed claims including direct race discrimination and victimisation. The appellant’s application for reconsideration was rejected under rule 72(1) of the Employment Tribunal Rules. His appeal against the merits judgment was out of time, but permission was granted to appeal the reconsideration judgment on the ground that the tribunal had not addressed victimisation separately from direct race discrimination.

The central issue was whether the tribunal’s findings that the withdrawal was not because of race were sufficient to determine whether it was because the appellant had raised a protected grievance.

1. Appeal allowed. The reconsideration judgment erred in law by failing to consider victimisation under the distinct test in section 27(1) of the Equality Act 2010.

2. The merits judgment found that the withdrawal of the employment offer was not because of the appellant’s race. That resolved the direct race discrimination claim under section 13(1), but it did not resolve the separate question whether the offer was withdrawn because the appellant had submitted a grievance. It was accepted that the grievance was a protected act.

3. Neither the merits judgment nor the reconsideration judgment showed that the tribunal had appreciated or applied that distinction. The reconsideration judgment instead repeated findings directed to race discrimination, including comparison with a hypothetical white comparator. Those findings did not answer the statutory question for victimisation.

4. The respondent could not establish that fresh consideration would be pointless. Although the tribunal had referred to information concerning difficulties in arranging a meeting with the appellant, it had not found that those difficulties were the reason for withdrawal. Its findings could instead support a conclusion that the respondent withdrew the offer because the grievance would delay permanent recruitment and require continued expenditure on agency staff. That possibility was highly material to victimisation.

5. The application for reconsideration of the victimisation claim was remitted to the Employment Tribunal for fresh consideration under rule 72(1) of the Employment Tribunal Rules.

• Employment Appeal Tribunal: Allowed the appeal against the reconsideration judgment and remitted the reconsideration application concerning victimisation for fresh consideration: [2024] EAT 60.
• Employment Tribunal: Dismissed the claims on their merits and subsequently rejected the appellant’s reconsideration application under rule 72(1) of the Employment Tribunal Rules. The appeal against the merits judgment was out of time and no extension was granted.