8th June, 2023

Robert Lassey succeeds on four grounds in the EAT in a race discrimination appeal

Robert Lassey has successfully appealed against a Majority finding of the Employment Tribunal that a Claimant was discriminated against on the grounds of his race following a disciplinary process which resulted in the termination of his engagement with the Respondent. In allowing the appeal on four grounds, the EAT agreed with Robert’s submission that the Majority of the Employment Tribunal had erred in its application of the second limb of the burden of proof under section 136(3) of The Equality Act 2010, and/or had reached a decision that was not Meek compliant. The EAT further agreed that the Majority had fallen into error in its assessment of how a hypothetical comparator would have been treated; and had impermissibly attached significant weight to evidence not formally relied upon by the Claimant.

The Claimant was engaged by the Respondent as a casual support worker providing care to vulnerable adults with acute learning difficulties. After working for the Respondent for many years, a decision was taken to remove the Claimant from the support worker’s bureau following an allegation that he had behaved inappropriately towards a service user whilst on shift. The Claimant sought to bring claims of race discrimination, alleging that: (a) the decision to instigate an investigation into his behaviour; (b) the conduct of that investigation; (c) the outcome of that investigation; and (d) the decision to remove him from the bureau, were all acts of direct race discrimination contrary to sections 13(1) & 39(2)(c) - (d) of The Equality Act 2010.

Following a five-day hearing in Manchester, the Employment Tribunal reached the following determinations:

(a) Unanimously, that the Claimant had not been discriminated against in the decision to instigate an investigation into his behaviour;

(b) By a Majority (panel member dissenting), that the Claimant had not been discriminated against in the outcome of the investigation, or the decision to remove him from the Respondent's support worker's bureau; and

(c) By a differently constituted Majority (Employment Judge dissenting), that the Claimant had been discriminated against in the conduct of the investigation into his behaviour.

The Respondent appealed against (c), arguing that the Majority's reasoning betrayed an error of law and/or was not Meek compliant in that it was inconsistent with the reasoning provided by the (differently constituted) Majority in dismissing the Claimant’s complaints under (b). The appeal further argued that the Majority had made two principled errors in its approach to the assessment of how a hypothetical comparator would have been treated; firstly, by failing to assess the evidential value of investigation meetings into the conduct of other individuals (already found not to be actual comparators) which the Majority used to support its conclusion; and secondly, by placing 'particular weight' on evidence which had not been relied upon by the Claimant without first alerting the Respondent to its intention.

The EAT agreed with Robert's submissions, concluding that the Majority had reached a decision which could not be reconciled with the reasoning it had already provided in respect of the Claimant’s other complaints, and/or was not Meek compliant. The EAT further agreed that the Majority’s reasoning as to how a hypothetical comparator would have been treated required a more nuanced fact-finding if it wished to conclude that certain aspects of how the actual comparators were treated were evidentially comparable to the Claimant’s circumstances (and were thus able to inform its hypothetical assessment), and yet others were not. Moreover, the EAT agreed that the Tribunal should have alerted the Respondent to the fact that it was proposing to attach particular weight to matters which the Claimant had not relied upon in support of his claim before reaching its decision.

The appeal was therefore allowed. The EAT quashed the Majority finding of direct race discrimination and remitted the matter back to a differently constituted Employment Tribunal for a fresh determination of the remaining conduct complaint under (c).

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