His Honour Judge Auerbach has handed down judgment in the matter of London Ambulance Service NHS Trust v Mr Rickey Garrett, allowing the Trust’s appeal.
Employment Tribunal decision appealed
The Employment Tribunal (by a majority) upheld three complaints of direct belief discrimination and one complaint of direct race discrimination brought by Mr Garrett against the London Ambulance Service NHS Trust. It awarded him £3,750 for injury to feelings.
Mr Garrett, who had been employed by the Trust since 2015, worked in the ambulance emergency crew and identified as white British. In January 2020 he referred to a black colleague as a “roadman” and in June 2020, following the death of George Floyd and subsequent Black Lives Matter movement, expressed views rejecting the concept of systemic racism.
These comments formed the basis of complaints against Mr Garrett made by other colleagues. The Trust investigated and upheld the complaints against Mr Garrett and issued him with a final written warning. The Trust also required him to complete unconscious bias training, a black allyship workshop and a written reflective practice.
Mr Garrett complained to the Employment Tribunal, claiming he had been discriminated against by the Trust in the course of that disciplinary process and outcome.
The Tribunal accepted that Mr Garrett held a protected philosophical belief that all people should be treated equally and with respect, regardless of colour or culture. It further concluded that his rejection of the concept of systemic racism was a manifestation of that protected belief.
On that basis, the Tribunal found that the Trust had directly discriminated against Mr Garrett by doing the following things:
The Tribunal also held that the failure to engage with Mr Garrett’s evidence amounted to direct race discrimination, concluding that a non-white employee’s evidence would not have been dismissed in the same way.
Employment Appeal Tribunal decision
The Employment Appeal Tribunal (‘EAT’) allowed the Trust’s appeal, quashed all four findings of discrimination and substituted a decision dismissing the claims.
The EAT’s principal reason was that the Tribunal had erred in law by treating Mr Garrett’s rejection of systemic racism as a manifestation of his protected belief. The EAT held that the protected belief identified by the Tribunal was a normative belief about how people ought to be treated, whereas the rejection of systemic racism was a descriptive belief about whether a social phenomenon exists. The EAT concluded that the latter did not logically flow from, nor constitute a manifestation of, the former.
Because that finding was fundamental to the Tribunal’s belief-discrimination reasoning, the three belief-discrimination findings could not stand.
In relation to race discrimination, the EAT held that there was no proper factual basis for inferring that Mr Garrett’s race materially influenced the treatment in question, and the Tribunal’s conclusion on race discrimination was therefore unsustainable and perverse.
The Tribunal was also criticised for not identifying which of the three panel members formed the majority view and for not setting out the written reasoning of the minority. Though not standalone grounds of appeal, this was not good practice.
Accordingly, the EAT concluded that the only proper outcome on the facts found was the dismissal of all four claims, and it therefore substituted that decision rather than remitting the case for reconsideration.
Lance Harris, instructed by Capsticks Solicitors LLP, acted for the London Ambulance Service NHS Trust in both the Employment Tribunal and Employment Appeal Tribunal.
This article was written by Rachel Wall.
