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(1) Birmingham City Council (2) David Tatlow v. P Samuels


Employment Appeal Tribunal

In light of the decision of Oyarce v Cheshire CC [2007] I.C.R. 1693, the burden of proof as set out in the Race Relations Act 1976 s.54A did not apply to allegations of victimisation. The correct principles to be applied were those set out in King v Great Britain China Centre [1992] I.C.R. 516, which required a respondent to produce an explanation for its conduct that could be fed into whatever stage of analysis was appropriate, and could affect consideration of whether or not a claimant had a prima facie case.
The appellant local authority appealed against an employment tribunal's decision that the respondent employee (S) had been victimised upon suspension from his employment, unfairly dismissed and subjected to racial discrimination.
S, a black Afro-Caribbean, had been employed within the local authority's legal department. He had become involved in a dispute with his colleagues, the local authority's disciplinary procedure had been invoked, and he had been suspended from his employment. A disciplinary hearing was conducted from which he was absent, due to sickness. S was summarily dismissed and his appeal against that dismissal was dismissed by the appeal panel. S lodged a claim with the employment tribunal containing a large number of allegations concerning unfair dismissal, race discrimination and victimisation. The tribunal decided that it would determine each issue separately, then stand back and view the evidence as a whole in order to determine whether S succeeded in his allegations. Neither part objected. It also set out the relevant legislative provisions, which included the applicable burden of proof as contained in the Race Relations Act 1976 s.54A. In considering the evidence on direct race discrimination and victimisation, it directed itself in accordance with the guidance set out in the case of Wong v Igen Ltd (formerly Leeds Careers Guidance) [2005] EWCA Civ 142, [2005] 3 All E.R. 812. The tribunal dismissed a large number of S's complaints, including five concerning the conduct of the local authority's internal appeal process. However, in finding in favour of S, it rejected the explanations provided by the local authority for S's suspension, which it found were inadequate. It also criticised the disciplinary process, found that there had been unexplained and unnecessary haste in unreasonably advancing that process to a hearing in S's absence, and also that S's dismissal was for discriminatory reasons. Overall, the tribunal determined that S had been victimised when he was suspended, unfairly dismissed, and subjected to race discrimination in the conduct of his internal appeal against dismissal. After the tribunal hearing, in the case of Oyarce v Cheshire CC [2007] I.C.R. 1693 the EAT decided that s.54A of the 1976 Act did not apply in victimisation cases.

The local authority submitted that (1) as regards the issue of race discrimination in the appeal process, the tribunal had failed to recognise that S had not discharged the burden of proof in accordance with Igen. It had dismissed S's complaints concerning the conduct of that process, and therefore the burden of proof should not have shifted to the local authority to provide an explanation for its conduct; (2) in relation to the issue of victimisation by suspension (a) as there was a potential gross misconduct allegation against S, which fell under the local authority's disciplinary procedure, which in turn provided for suspension, S had failed to establish a prima facie case. Therefore, the burden of proof had been wrongly allocated; (b) if Oyarce was correct or was to be followed, there had been a misdirection by the employment tribunal, because it had wrongly shifted the burden of proof onto the local authority under s.54A of the 1976 Act.

HELD: (1) When standing back, the tribunal had to look at the whole picture, and not just focus on S's internal appeal. S's career and his advance through the disciplinary and grievance procedures were all relevant in deciding whether to draw an inference of prima facie discrimination and whether the burden of proof should shift. The evidence, even shorn of the five dismissed allegations, indicated that S had been suspended for reasons which had been unsatisfactorily articulated. Further, an inference could be drawn from the local authority's treatment of S in relation to its own established procedures, which had been operated inflexibly and hastily. The appeal hearing was procedurally and substantially unfair. It was open to the tribunal to find from those matters, and S's treatment during the antecedent disciplinary processes, that there had been more than simply a difference of race and treatment to be weighed, Madarassy v Nomura International Plc [2007] EWCA Civ 33, [2007] I.C.R. 867 considered. The tribunal had correctly passed the burden of proof to the local authority to provide an explanation, and its finding that the explanation provided was inadequate was upheld, Igen considered. (2)(a) The tribunal could not be faulted for drawing the inference that the material available to it showed that there could have been race discrimination, and therefore an explanation was called for; (b) however, Oyarce was to be followed, and therefore there had been a misdirection, Oyarce followed. As the burden of proof had not shifted by statute, it was necessary to revert back to the judgment of King v Great Britain China Centre [1992] I.C.R. 516, which required a respondent to produce an explanation where a question arose relating to a discrimination allegation, King applied. Such explanations fed into whatever stage of analysis was appropriate, and could affect consideration of whether or not there was a prima facie case, Laing v Manchester City Council [2006] I.C.R. 1519 applied. The single central question was why the local authority had treated S in the way it did, Brown v Croydon LBC [2007] EWCA Civ 32, [2007] I.C.R. 909 applied. Applying King, the tribunal's decision that S had been victimised by his suspension was unarguably correct.

Appeal dismissed.

LTL 15/1/2008

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