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01 September 2015

Looking at the bigger picture in discrimination cases

Tim Kenward appeared for the Respondent employer in the recent Employment Appeal Tribunal case of Horlorku v Liverpool City Council [2015] UKEAT/0020/15/DA, EAT, where Mr Justice Langstaff, the President of the Employment Appeal Tribunal, gave guidance as to the need to look at the bigger picture in discrimination cases rather than just concentrating on the individual incidents alleged.

The Claimant worked as a community cohesion support officer. The number of such posts was reduced in a restructuring exercise and the Claimant was unsuccessful in  securing one of the new posts. He considered that this decision was discriminatory partly because he believed that the new posts involved too great a focus on supporting new and emerging communities rather than supporting more established black and ethnic minority communities so that one of the criteria listed in the person specification for the new posts related to proficiency in at least one new community language, such as Polish or Czech.   The Claimant was then assigned to various projects whilst redeployment was unsuccessfully sought before being made redundant. He complained to the Employment Tribunal that his treatment during this period and a number of incidents that had occurred whilst he was working on the projects, amounted to direct discrimination and/or harassment on the grounds of his race or victimisation for having complained about race discrimination

The written reasons for the Tribunal Judgment listed the complaints to be determined on the basis that they had been agreed with the parties at the outset, and this list had further been rehearsed and revised during the course of the hearing. The Tribunal found against the Claimant in relation to all of the complaints which had been so listed.

The Claimant appealed to the Employment Appeal Tribunal on the basis that the Employment Tribunal had failed to deal with a number of other complaints which were set out in the ET1 Form of Claim or in the Claimant’s Statement of Evidence which had been neither withdrawn nor conceded. Furthermore, having dealt with those individual complaints which had been listed, the Tribunal failed to look back over all the findings made on the evidence, including any criticisms made of the Respondent, to consider whether, taken together, those findings made it appropriate to draw an inference that there had been discrimination.

Mr Justice Langstaff held that there was no basis upon which the EAT could challenge the Tribunal’s assertion that the issues to be determined had been agreed. As to this, the evidence was all one way, particularly as the Employment Judge’s list of issues was virtually identical to that set out in writing in the closing submissions of the Respondent’s counsel. It was not the case that every matter which may be said to be within the pleadings is a matter upon which the Tribunal’s decision is actually required.  It has to resolve the dispute as brought before it by the parties.  Here, therefore, the parties, had agreed the approach which the Tribunal should take.  That was the approach the Tribunal adopted.  On appeal it was too late to try and argue the case on a different footing.

That said, the fact that the issues were as defined by the Tribunal does not mean that it would be sufficient for the Tribunal to consider each of the allegations made by the Claimant as if it was a completely separate act with no relationship to the others. An Employment Tribunal considering complaints of racial discrimination also needed to consider the wider picture in determining whether racial factors were involved in the treatment of the complainant. It is difficult to understand a scene in the third act of a play without seeing what has happened in the first two acts of the same play. However, in the present case, the Tribunal had concluded that the Claimant “was treated in a non-discriminatory, fair and reasonable manner throughout”. Although this was rather succinct, it met the requirement for the Tribunal to have regard to the “picture painted overall”. There was further support for the view to which the Tribunal came.  That was because, in each and every one of the events which the Tribunal examined, it found a reason which it accepted as non-discriminatory for the way in which the Claimant had been treated.

The EAT commented that cases of discrimination do not get stronger because there is a greater number of complaints.  It is only if some of those complaints are justified or may be justified that they may be aggregated with others to present a rather different picture than if the focus was upon the events individually.  Here that could not be said since at every turn the Employment Tribunal rejected the case for the Claimant.

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