BURDEN OF PROOF

Laing v Manchester City Council

EAT: Elias J (President), Ms K Bilgan and Mrs S Gallico: 28 July 2006

The claimant made claims of race discrimination, based on alleged bullying by his supervisor, and victimisation, contending that he had been dismissed after he had raised the issue of bullying with his employers. An employment tribunal decided that his supervisor had acted inappropriately but accepted evidence from the employers that she indiscriminately treated all subordinates in an abrupt fashion and that her treatment of the claimant was not on the ground of his race. The tribunal concluded that, for the purposes of section 54A of the Race Relations Act 1976, the claimant had not proved facts from which it could conclude that, in the absence of an adequate explanation, the employers had committed the unlawful act of discrimination. In relation to the victimisation claim, the tribunal found that the fact that the claimant was dismissed immediately after his complaint of bullying had been investigated did raise a prima facie case that required an explanation, but it accepted the employers' explanation that the reasons for dismissal were failure to obey a reasonable management order and his relationship with his supervisor and other staff, and it dismissed the claims.

The claimant appealed, contending, inter alia, that the tribunal ought not to have taken account of the employers' explanation for the supervisor's treatment of him in determining whether he had established a prima facie case of bullying pursuant to section 54A.

The Employment Appeal Tribunal held:
(1) In deciding whether a prima facie case of discrimination had been made out for the purposes of section 54A(2) of the Race Relations Act 1976, the reference to "the complainant proves facts" did not mean that it was only the facts adduced by the complainant that could be considered, but merely indicated that at that stage the burden rested on him to satisfy the tribunal that a prima facie case, sufficient to require an explanation, existed. Under section 54A the onus lay on the claimant to show potentially less favourable treatment from which an inference of discrimination could properly be drawn, and that required a consideration of all the material facts, as opposed to any explanation. Considering all the facts rather than the claimant's evidence in isolation, the fact that the claimant's supervisor displayed the same aggressive manner to all subordinates was a potentially highly material fact, and, in taking account of that evidence, the tribunal was not having regard to the explanation for her conduct. Accordingly, the tribunal's finding that her treatment of the claimant was nothing to do with race was an inference drawn from the primary facts.
(2) In relation to the victimisation claim, the tribunal had looked at the reasons why the claimant was dismissed and was satisfied that they were not connected with the fact that the claimant had made allegations of race discrimination. In those circumstances, there was no need to identify an appropriate comparator. It was for the tribunal to assess the evidence and determine what inferences could be drawn, and its decision could not be criticised.

The appeal was dismissed.

Appearances: Richard Leiper (Bar Pro Bono Unit) for the claimant; Christopher Taft (Legal Services, Manchester City Council) for the council