E Ewome v BMAT Education

Equality Act 2010, section 136 requires a claimant first to prove facts from which discrimination could be inferred. Poor or detrimental treatment alone does not meet that threshold. There must be a basis for linking the treatment to the protected characteristic.

An Employment Tribunal may consider all the evidence at the first stage, including evidence of a materially similar actual comparator. Where that evidence establishes a non-discriminatory reason for the treatment, the burden does not shift. Case-management decisions about late live evidence will not be disturbed unless the tribunal reached a conclusion no reasonable tribunal could have reached, and any error must be material.

The claimant, a black assistant headteacher, appealed the East London Employment Tribunal’s dismissal of her direct race-discrimination claim. Her claim concerned the handling of her 2019/2020 performance-management review, which changed from pass to fail and later to pass.

The respondent relied on a white assistant headteacher, Ms Viccars, whose review followed the same pass, fail, pass sequence. The Tribunal found the process shabby and unprofessional, but found no facts from which race could be inferred as the reason for it.

On the third hearing day, the Tribunal admitted an email from Ms Viccars but refused to hear her live evidence. The appeal concerned the burden of proof under section 136 and whether that evidential ruling was procedurally unfair.

1. Appeal dismissed. The Employment Tribunal correctly applied the two-stage burden-of-proof provisions in section 136 of the Equality Act 2010.

2. The Tribunal was entitled to consider all the evidence when deciding whether the claimant had established stage 1. Although its reference to less favourable treatment was unfortunate, its reasoning showed that it had found a detriment: the claimant’s pass, fail, pass treatment. It then considered the evidence as a whole, including the actual comparator.

3. The evidence permitted the Tribunal to find that the headteacher’s reason for requiring the claimant’s review to be changed was the absence of improvement in behaviour, an area within her responsibilities, rather than race. The comparator had also received pass, fail, pass treatment following the headteacher’s intervention. The Tribunal was therefore entitled to conclude that no facts had been proved from which it could infer race discrimination. The burden did not shift to the respondent.

4. The refusal to receive Ms Viccars’ live evidence was a case-management decision. It appeared surprising to admit her untested email while refusing live testimony. However, assessed when the decision was made, the Tribunal had no witness statement; it had already heard evidence advancing a different basis for challenging Ms Viccars as a comparator; and it expected further evidence about the reasons for the treatment.

5. The Tribunal could reasonably regard the decisive common fact as the pass, fail, pass sequence. Ms Viccars’ email denied the conduct issue on which the claimant had originally sought to distinguish her, and so tended to undermine that case. There was no procedural unfairness or error of law. In any event, any arguable error was not material to the outcome.

• Employment Appeal Tribunal: Appeal dismissed: [2025] EAT 101.
• East London Employment Tribunal: Dismissed the claimant’s direct race-discrimination claim.