Employment law

Inferring direct discriminationAnya v University of Oxford and another (2001) IRLR 377This decision of the Court of Appeal marks a significant advance in the cause of equal opportunities in employment.The court ruled that a tribunal erred in finding that a black job applicant had not been discriminated against on racial grounds when a post for which he was shortlisted went to the other candidate, who was white.The tribunal's conclusion that the less favourable treatment was not on the grounds of race, but on grounds of the applicant's qualities, was only open to them if arrived at after proper consideration of the indicators which the applicant relied on as pointing to an opposite conclusion.

Where there is a process of selection of a particular candidate, accompanied by a difference in race, it is not unduly onerous to expect an explanation for the selection decision.In the allocation of jobs by any sensibly-run institution, the explanation will be straightforward; the candidates were interviewed by an unbiased panel on an equal footing, using common criteria which contained no obvious or latent elements capable of favouring one racial group over another; and the best one was chosen.

By parity of reasoning, evidence that one or more members of the panel were not unbiased, or that equal opportunities procedures were not used when they should have been, may point to the possibility of conscious or unconscious racial bias having entered into the process.

It will always be a matter for the tribunal's conscientious judgement.Lord Justice Sedley highlighted the difficulty facing an applicant in a race discrimination case, that is to say, of discharging the burden of proof in the absence of direct evidence on the issue of racial grounds for the alleged discriminatory actions and decisions.

Interestingly, he also remarked that: 'the applicant faces special difficulties in a case of alleged institutional discrimination which, if it exists, may be inadvertent and unintentional' (but a precise definition of 'institutional discrimination' was not attempted in the judgment).In answering the key questions in a case of this kind, the tribunal must make findings of primary fact, either on the basis of direct or positive evidence or by inference from circumstantial evidence.

The primary facts may include not only the acts which form the subject matter of the complaint, but also other acts alleged by the applicant to constitute evidence pointing to racial grounds for an alleged discriminatory act or decision.But Lord Justice Sedley acknowledged that: 'it is this aspect of the evidence in race relations cases which seems to cause the greatest difficulties.

Circumstantial evidence presents a serious practical problem for the tribunal of fact.

How can it be kept within reasonable limits? ...The parties and their advisers may confuse each other (and the tribunal) as to what the tribunal really has to decide; as to what is directly relevant to the decision which it has to make and as to what is only marginally relevant or background.

It is a legitimate comment that in some cases of race discrimination so much background material of marginal relevance is introduced that focus on the foreground is obscured, even eclipsed.

In practical terms this may lead the case to run on and on for many days or weeks.

In the experience of this tribunal, the longest cases heard in the industrial tribunals are cases of racial discrimination'.Lord Justice Sedley acknowledged that the process of making inferences or deductions from primary facts is a demanding task, often more difficult than deciding a conflict of direct oral evidence.

He said: 'there is a tendency ...

where many evidentiary instances or items are introduced, to be carried away by them and to treat each of the allegations, instances or items as if they were themselves the subject of the complaint ...

The fragmented approach adopted by the tribunal in this case would inevitably have the effect of diminishing any eloquence that the cumulative effect of the primary facts might have on the issue of racial grounds.

The process of inference is itself a matter of applying common sense and judgement to the facts, and assessing the probabilities on the issue of whether racial grounds were an effective cause of the acts complained of or were not.

The assessment of the parties and their witnesses when they give evidence also form an important part of the process of inference.

The tribunal may find that the force of the primary facts is insufficient to justify an inference of racial grounds.

It may find that any inference that it might have made is negated by a satisfactory explanation from the respondent of non-racial grounds of action or decisions ...

The legal and evidential difficulties are increased by the emotional content of the cases.

Feelings run high.'On the facts, the tribunal erred in deciding that race did not play any significant part in the selection decision after having concluded that it had accepted as truthful the evidence of the applicant's supervisor (who was a member of the interview panel) that his reasons for not choosing the applicant had to do entirely with a genuine assessment of his strengths and weaknesses and had nothing to do with race.'Credibility', Lord Justice Sedley said, 'is not necessarily the end of the road: a witness may be credible, honest and mistaken, and never more so than when his evidence concerns things of which he himself may not be conscious.

The case concerned a choice between two comparably well-qualified candidates, where everything depending on how the panel viewed their personal professional qualities.

Such a judgment is notoriously capable of being influenced, often not consciously, by idiosyncratic factors especially where proper equal opportunity procedures have not been followed' (and in this case, in breach of the university's own equal opportunities policy, no person specification had been drawn up until minutes before the interview and references were not taken up on the candidates).The tribunal also erred in directing itself that if an employer behaves unreasonably towards a black employee, it is not to be inferred, without more, that the reason for this is attributable to the employee's colour, in that the employee might very well behave in a similarly unreasonable fashion to a white employee.

Such hostility may justify an inference of racial bias if there is nothing else to explain it.

Thus, there must be evidence that such an employer behaves equally badly towards employees of all races.

Allonby v Accrington & Rossendale College & Others (2000) IRLR 364In another important ruling, the Court of Appeal upheld a tribunal's decision that an applicant had made out her case that it was a 'requirement' or 'condition' within section 1(1)(b) Sex Discrimination Act 1975 for continuous employment with her employer that an employee must have been previously employed either on a full-time basis under a contract which conferred proportionate benefits to a full-time contract.If an applicant can realistically identify a requirement or condition capable of supporting her case, it does not matter that her employer can 'with equal cogency' derive from the facts a different and unobjectionable requirement or condition.

Brook v London Borough of Haringey (1992) IRLR 478, was wrongly decided.

By Martin Edwards, Mace & Jones, Liverpool