When considering multiple allegations of discrimination, should employment tribunals look at each allegation separately or take a holistic approach? According to the Employment Appeal Tribunal (EAT) in Fraser v University of Leicester and ors, they should do both by determining each complaint separately whilst still taking a holistic approach in order to see the bigger picture.
Professor Fraser, a black Afro-Caribbean Professor of Economics, lodged a grievance in April 2009 against his head of department alleging “harassment and attempted bullying and intimidation”, but his grievance was dismissed.
Towards the end of November 2009 he raised two further grievances against other members of his department, one of them on the ground of racial discrimination. A panel subsequently met in March 2010 to hear his appeal against the first grievance, which was upheld. It reconvened to consider the two November 2009 grievances and reported in October 2010, partly finding in his favour although it did not find that he had been less favourably treated on the grounds of his race. He appealed against this decision unsuccessfully.
He then lodged a tribunal claim setting out 66 separate acts of allegedly less favourable treatment by members of his department. He made further complaints in respect of the second claim which fell under six broad headings.
Having gone through each of the individual allegations in some detail, the tribunal reminded itself of the warning in Rihal v London Borough of Ealing that it should not take an approach that was too fragmented. It therefore stood back to ensure that it exposed the “bigger picture”.
It did so “firstly in respect of the major themes of the allegations” and then “in terms of the total picture which these themes make up”: From that perspective, it accepted that Mr Fraser had, at times, been treated unreasonably and that the university had been tardy in dealing with his complaints and had engaged in some poor practice.
However, as the tribunal found facts that could explain the way he had been treated that had nothing to do with his race or colour, it concluded that his complaints of race discrimination could not succeed.
Professor Fraser appealed on the basis that the tribunal had failed to adopt a holistic approach. In other words, it had looked at the individual matters of complaint but had failed to step back and see the overall picture.
However, the EAT did not agree, holding that this was an unfair characterisation of the tribunal’s approach. Instead, it had taken particular note of the injunction in Rihal that it must look at the total picture and that where allegations of discrimination spanned a substantial period of time, it was aware it could not treat the individual incidents complained of in isolation from one another.
Indeed, it had expressly recognised that adopting a fragmented approach would “overlook the relevance which the wider profile may have to the decisions to be reached on individual complaints”. The tribunal made clear that such a risk could exist in this case and although it spent significant time on each individual allegation, it was mindful of the wider picture and context. Having correctly directed itself in this way, the tribunal went on to apply that approach, looking at both the allegations made thematically and overall.
The EAT concluded that Professor Fraser’s complaints arose “from the history of dysfunctional relationships and departmental disputes existing in the Department of Economics and were not identified in any way with race or with any possible complaint of race discrimination”. This history informed the perceptions and conduct of his senior colleagues, who responded as they would have done in the case of any senior academic (regardless of race) in like circumstances.
The tribunal must look both at individual allegations (the detail) and the allegations taken together as a course of conduct (the bigger picture) because it is not always easy to see that a person has been treated differently on the grounds of race unless the whole way in which they are treated is taken into account. What can be easy to explain away in individual minor incidents might become clearly differential treatment when all the events are taken together. This applies to all types of discrimination and harassment.