Hammonds LLP & Ors v Mwitta

(1) Overall disposition: the appeals succeed in part. The EAT allowed the appeals against the ET's findings of race discrimination and unfair dismissal. The race discrimination findings are set aside and remitted; the unfair-dismissal finding is set aside (see Disposal). (2) Reverse burden under RRA s54A: the tribunal emphasised the two-stage test derived from authorities such as Madarassy v Nomura and Igen v Wong. At stage one the claimant must prove facts from which a reasonable tribunal could, in the absence of an adequate explanation, conclude that the respondent committed unlawful discrimination. A mere possibility that the respondent could have discriminated is insufficient to shift the burden. The EAT held that the ET had misdirected itself by treating statistical disparity and marginalisation as sufficient to pass the burden to respondents without the necessary finding that those facts could support a conclusion of actual discriminatory treatment on racial grounds. (See discussion and conclusions.) (3) Application to the present case: on the evidence the ET had found substantial disparity in work allocation and criticised respondents' explanations. The EAT held, as a matter of law, that the ET erred in its legal direction and in the approach to whether a prima facie case had been made. Because it was not possible to say that no properly directed tribunal could reach the same conclusion, the EAT remitted the race claims for rehearing by a differently constituted Employment Tribunal. (4) Effect of breach of TULR(C)A s188 on fairness under ERA s98: the EAT held that breach of s188 does not automatically render a dismissal unfair under s98. The statutory remedy for s188 breach is the protective award regime. Events occurring after dismissal cannot be used to make the dismissal unreasonable under s98. The ET therefore erred in finding the dismissal unfair; that finding was set aside and the unfair-dismissal claim dismissed. (5) Remedies and directions: the protective award previously made under s188 remains, but the unfair-dismissal finding is quashed. The race discrimination claims are remitted to a differently constituted Employment Tribunal for rehearing. The EAT invited short written submissions on whether the remitted hearing should sit before the same or a different ET and concluded that a differently constituted ET was appropriate. (Disposal.)