London Ambulance Service NHS Trust v Ricky Garrett

For direct discrimination based on a manifestation of belief, the conduct must be intimately linked to the protected belief. A normative belief about how people ought to be treated does not, without more, make a descriptive belief about how society operates its manifestation. The tribunal must identify the actual reason for the treatment and engage with any specific non-discriminatory explanation. For race discrimination, an inference or burden shift requires identified facts capable of supporting the conclusion that race materially influenced the treatment. Where only one outcome is properly open, the appellate tribunal may substitute dismissal rather than remit.

The respondent appealed against a majority decision of the employment tribunal upholding three complaints of direct discrimination because of the claimant’s protected belief, and one overlapping complaint of direct race discrimination. The complaints arose from disciplinary investigations and sanctions following workplace comments about systemic racism and an earlier incident involving the word “roadman”. The tribunal treated the claimant’s rejection of systemic racism as a manifestation of his protected belief that people should be treated equally regardless of colour or culture.

The appeal concerned whether that manifestation analysis was legally open, whether the tribunal had identified the relevant reason and comparator, and whether it had properly addressed the employer’s non-discriminatory explanation and the factual basis for the race complaint.

1. Appeal allowed. The tribunal’s findings upholding three complaints of direct discrimination because of belief and one complaint of direct race discrimination, together with the compensation award, were quashed.
2. The protected belief identified by the tribunal was normative: people should be treated equally regardless of colour or culture. The rejection of systemic racism was descriptive: it denied that a social or institutional phenomenon existed. Those propositions were conceptually distinct. A person holding the normative belief could also believe that systemic racism existed. The tribunal therefore erred in finding an “undeniable link” between them.
3. On the facts found, the descriptive belief was not a manifestation of the protected normative belief within the Eweida requirement of an intimate link. That conclusion was essential to all three belief-discrimination findings.
4. The tribunal also erred in failing to consider whether the investigation would have been conducted in the same way if the claimant had made another statement regarded as racially charged but which was not a manifestation of protected belief. It failed to engage with the employer’s specific explanation that evidence was discounted for lack of academic rigour, and was wrong to state that no non-discriminatory reason had been advanced.
5. The race-discrimination finding was unsupported. The tribunal identified no proper fact from which to infer that the claimant’s race materially influenced the decision, or that the burden of proof shifted. Management’s statements about listening to BME colleagues did not support that inference. The finding was perverse on the facts and evidence relied on.
6. Applying Jafri v Lincoln College, remittal was unnecessary because the only conclusions properly open on the framed issues and established facts were that the complaints should be dismissed. Dismissals were substituted.

The tribunal’s failure to state the minority’s reasoning and identify the majority and minority members was criticised as poor practice.

• Employment Appeal Tribunal: The appeal from the employment tribunal was allowed. The findings of direct belief and race discrimination and the compensation award were quashed, and dismissals were substituted under Jafri v Lincoln College [2014] EWCA Civ 449.
• Employment tribunal: A majority upheld three complaints of direct discrimination because of belief and one complaint of direct race discrimination, and awarded £3,750 for injury to feelings.