The Employment Appeal Tribunal's decision to remit an employee's claim for racial discrimination was correct where the employment tribunal had firstly misstated the law and then failed to give an adequate explanation when required to do so by the EAT.

 

The appellant employer (B) appealed against a decision of the Employment Appeal Tribunal that a claim for racial discrimination by the respondent employee (V) be remitted to the employment tribunal for reconsideration.

 

V, who was a professor employed by B, received a performance review in which he was given the lowest rating and was criticised for abusing B's email system. V's internal appeal was dismissed and he issued proceedings on grounds of racial discrimination and that he had been subjected to a detriment on grounds related to his union membership or activities. The employment tribunal dismissed V's claim and V appealed. The EAT stayed the appeal and referred two questions to the tribunal: (a) whether there was less favourable treatment of V subconsciously motivated by unlawful discrimination; and (b) what were its reasons for concluding that the detriment to V of the setting up or conduct of the email enquiry was not motivated contrary to the Trade Union and Labour Relations (Consolidation) Act 1992 s.146. The tribunal stated that they had considered the possibility of subconsciously motivated discrimination but it was unfortunately not reflected in its written decision. In relation to the second question the tribunal stated the reason for its conclusion was because it accepted B's evidence that it had reasonable concerns that V was continuing to abuse the email system. Following those answers the EAT allowed V's appeal and remitted the matter for rehearing to a differently constituted tribunal.

 

HELD: The reasoning supplemented by the answers given in the review hearing were insufficient. The tribunal had not done what it was invited to do by the EAT. There was no reasoning at all, other than the bare assertion that the tribunal had considered and rejected subconscious motivation. Accordingly the EAT was correct to rule that the original decision misstated the law and the explanation given was inadequate. There was no alternative than to remit the matter to a different tribunal for a full rehearing.

Appeal dismissed.

 

Counsel for the respondent: Stuart Brittenden.