Although tribunals can infer discrimination from the basic facts presented by the claimant, the EAT has said in Network Rail Infrastructure Ltd -v- Griffiths-Henry (2006, IRLR 865) that just because an employer acted unfairly did not mean they were guilty of discrimination.
What were the basic facts?
Ms Griffiths-Henry (who is black) started work for Network Rail as an area finance manager in September 2000. Between June 2003 and July 2004, the company underwent a major reorganisation which resulted in a TUPE transfer of 15,000 staff.
Following the transfer, Ms Griffiths-Henry was told that she was one of nine finance controllers competing for five jobs. The company started a redundancy process in which all the candidates were assessed according to a set of skills-based criteria.
Ms Griffiths-Henry was given the second lowest score out of the nine and was told that she would be made redundant. All the other candidates were white men. She claimed unfair dismissal, race and sex discrimination.
What did the tribunal decide?
The tribunal agreed that Ms Griffiths-Henry had been less favourably assessed in the procedure carried out by the company, which made the dismissal unfair.
It also said that she had established enough facts from which it could infer both sex and race discrimination, because “she is the only black person and the only female in the group. The failure to select her was clearly to her detriment. We conclude that there was a difference of race and sex and a difference of treatment.”
Given these findings, the tribunal looked to the employer for an explanation, but was not convinced by it. It decided that the assessment process had been “tainted by subjectivity”, and concluded that Network Rail could not show that “the process was not tainted by either race or sex discrimination and we find the claimant's complaint made out.”
What did the EAT decide?
The EAT said that although the tribunal was entitled to infer race and sex discrimination from the facts, the mere fact that she was a black woman and the others were white men was not, in itself, enough to establish discrimination.
It agreed with the suggestion in Dresdner Kleinwort Wasserstein Ltd -v- Adebayo that an employee would be able to establish a case “if he were black, was at least as well qualified as the white comparator, and was not promoted”, but only if there were two candidates for the job.
If the unsuccessful black candidate was rejected along with a number of equally well qualified white candidates, then the justification for inferring a “prima facie” case would be much weaker. In this case, the tribunal established Ms Griffiths-Henry was, on the face of it, as well qualified as the five successful candidates. It then fell to the employers to explain why five white men were selected and she was not.
However, it was crucial at this second stage for the tribunal to have only concerned itself “with the reason why the employer acted as he did”. Although the tribunal found that there was a certain inconsistency in the way the redundancy process was carried out, that did not mean it was necessarily tainted by race or sex discrimination.
The EAT said it would be inappropriate to find discrimination simply because the tribunal did not think that the explanation given by the employer for the difference in treatment was justified or reasonable.
If that were so, an employer who used unacceptable criteria to select staff or applied them inconsistently could, for that reason alone, be liable for a whole range of discrimination claims in addition to an unfair dismissal claim. That, said the EAT, would “plainly be absurd”. Unfairness alone was not enough to establish discrimination.
The EAT was therefore “left with the clear impression that the tribunal here was satisfied that discrimination could be inferred merely because the selection criteria were not applied as objectively as the employer claimed.” It had failed to distinguish between unreasonable conduct which rendered the dismissal unfair, and discriminatory treatment. The appeal would therefore be allowed and the case remitted to the tribunal.