It is directly discriminatory under the Race Relations Act 1976 to treat someone less favourably than another person on racial grounds. This is known as direct discrimination.

In Bvunzai v Glasgow City Council, the Court of Session (the Scottish equivalent of the Court of Appeal) has said that tribunals must consider not just the conduct of the employer, but also whether they can provide an explanation for their behaviour when considering allegations of direct discrimination.

Mr Bvunzai's union, Unison, instructed Thompsons to act on his behalf.

Why did Mr Bvunzai complain?

Mr Bvunzai had worked for Glasgow City Council since 1977. In August 2000 he applied for a senior social work management job, for which five people were interviewed. He was the only black candidate. The person appointed was a white woman, Ms McGuire.
Mr Bvunzai claimed direct discrimination on the basis that:

  • The panel members ignored the council's code of practice on recruitment and selection which said that an interview assessment form should be completed after each interview. Instead, it was filled in at the end of the whole interview process. Mr Bvunzai had been interviewed first; Ms McGuire last.
  • One of the panel members had not received any training in the code of practice.
  • Ms McGuire was given a higher score than Mr Bvunzai for "speech, manner" and was described as "articulate", with no allowance made for the fact that Mr Bvunzai was born in Zimbabwe and learned English as a second language.
  • Ms McGuire was given a higher score for "evidence of career development" although Mr Bvunzai was far more experienced.
  • Neither candidate was given a score for "experience" although Mr Bvunzai had far more experience at senior management level than Ms McGuire.
  • The panel had not followed the code of practice for nominating a second referee. Instead of asking each candidate to suggest one, it asked their external line managers for a reference. Ms McGuire's external line manager was Mr Grant (a member of the interview panel).

What did the tribunals decide?

The tribunal decided that the interview panel's assessment of Mr Bvunzai was influenced by racial factors, as the members could not credibly explain why his score was so much lower than Ms McGuire's. This was compounded by breaches of the council's own code of practice.

The employment appeal tribunal disagreed, however, saying that the tribunal's decision was "perverse". Mr Bvunzai appealed to the Court of Session.

What did the court of session decide?

Relying on Nagarajan v London Regional Transport (1999, ICR 877), the court said that, without any direct evidence of racial bias, the tribunal could only infer how the panel had come to its decision "from the surrounding circumstances".

In this case "the circumstances were...such that it was open to the employment tribunal to find that the appellant's non-selection was influenced by racial factors, even if the conduct did not point overtly to the decision having been made on racial grounds... It was thus not the respondent's conduct alone which rendered that finding open to the tribunal, but that conduct combined with the respondent's inability to explain it."

It said that the test for "perversity" was a high one that, ultimately, was "a matter for the tribunal's conscientious judgment." The EAT had therefore erred in law in interfering with their decision.

The Court of Session allowed the appeal and remitted the case to the original employment tribunal to reassess the compensation.