D’Silva v Natfhe and ors
The law says that tribunals may draw an inference of discrimination if an employer fails to reply to a questionnaire without providing a reason, or delays doing so or provides an inadequate response. In D’Silva v Natfhe and ors, the Employment Appeal Tribunal has said, however, that claimants should not assume that tribunals will automatically find there has been discrimination.
Basic facts
Mr D’Silva, a university lecturer, brought a tribunal claim in 2002 against his employer alleging race discrimination. The union initially offered assistance, but on the advice of its legal team scaled back its support.
In November 2003 he asked the union again for support in a claim of victimization. After much delay about which barrister to instruct, Mr D’Silva was advised that his case was unlikely to succeed.
In February 2005 he wrote asking for a second opinion, inferring that the barrister had simply said what the union’s legal advisor wanted to hear. The union refused but said it would be prepared to pay half the costs of a mediator.
After a further exchange of correspondence in March, the union said that it was closing his file. Mr D’Silva appealed but in April 2005 the union confirmed its decision not to provide him with further help.
He went ahead with his tribunal claim which was successful in parts but which resulted in a costs order against him. Mr D’Silva asked the union for help which it refused. Unfortunately he did not get the letter and the union then failed to respond to his “chasers”.
Mr D’Silva accused the union of direct race discrimination and victimization.
Tribunal decision
The tribunal dismissed his claims saying that the union had been reasonable in the way it exercised its discretion to provide legal assistance to members. It did not think that a white applicant making a similar request would have been treated any differently.
Even if Mr D’Silva had established facts from which race discrimination or victimization could be inferred, the tribunal said it was satisfied by the explanations given by the union, concluding that: “We find that the explanations have been reasonable, credible and not discriminatory on grounds of race or the Claimant having done protected acts.”
EAT decision
The EAT upheld the decision of the tribunal and rejected all the grounds of Mr D’Silva’s appeal.
In particular, it focused on his argument that the tribunal had failed to consider whether it should draw discriminatory inferences from the way in which the union answered his Race Relations Act questionnaire; and that the union should have provided him with ethnic monitoring information about its decisions to provide legal assistance to members.
The EAT, however, implicitly criticised claimants (and some tribunals) who, it said, seemed increasingly to assume that an employer’s failure to answer a statutory questionnaire would raise an automatic presumption of discrimination. Employers, it said, sometimes have perfectly good reasons for why they have not replied.
Instead the question for tribunals was whether, in the particular circumstances of the case, the employer’s failure can support an inference that the respondent committed the discrimination. “There will be many cases where it should be clear from the start, or soon becomes evident, that any alleged failure of this kind, however reprehensible, can have no bearing on the reason why the Respondents did the act complained of, which in cases of direct discrimination is what the Tribunal has to decide. In such cases time and money should not be spent pursuing the point.”
The union had also not provided Mr D’Silva with the information he had requested on ethnic monitoring as its computer systems did not routinely record the information. But, again, the EAT said the union had a good reason for not doing so, as going through paper files to collate the information would have been “disproportionately burdensome”.