Employment Appeal Tribunal
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  EWCA Civ 33,  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  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  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  EWCA Civ 32,  I.C.R. 909 applied. Applying King, the tribunal's decision that S had been victimised by his suspension was unarguably correct.
William Meade (Senior Clerk)