Labour & European Law Review Weekly Issue 436 09 September 2015
To prove a claim of direct race discrimination, claimants have to show that they have been treated less favourably because of their race. In Adeshina v St George’s University Hospitals NHS Foundation Trust and ors, the Employment Appeal Tribunal (EAT) held that it was not less favourable treatment if a manager made a genuine procedural mistake, which was not tainted by consideration of the employee’s race.
Ms Adeshina, who is British of Nigerian origin and black African ethnicity, worked as a member of the senior management team within the pharmacy department of HMP Wandsworth. She was responsible for leading a project to change the way in which prison pharmacy services were provided.
However, following a meeting in July 2011 to discuss the project she was asked to attend a disciplinary hearing because of alleged unprofessional behaviour at the meeting. She was ultimately dismissed for misconduct in May 2012, a decision that was upheld on appeal in October 2013. Ms Adeshina claimed race discrimination, victimisation, automatic protected disclosure and conventional unfair dismissal, as well as wrongful dismissal..
The tribunal dismissed all her claims. Although it found that there were a number of procedural deficiencies at the disciplinary hearing, these had been cured at the appeal stage. Taken overall, therefore, the dismissal was fair. It also found that Ms Adeshina had committed a repudiatory breach of the contract and that her wrongful dismissal claim therefore also failed.
As for the race discrimination claim, the tribunal concluded “quite comfortably” that she had not been less favourably treated because of her colour. It was not enough for Ms Adeshina just to show that she had suffered a detriment and that she was a member of a protected class. There has to be “something more” because otherwise a finding of unfair dismissal of anyone falling within a protected class would lead to an automatic finding of direct discrimination. As she had not produced that “something more” her claim could not succeed. Any mistakes in the process had arisen because of genuine errors that were not consciously or subconsciously tainted by race discrimination.
The EAT also dismissed her appeal. In terms of the unfair dismissal claim, the tribunal was simply required to consider the fairness of the process overall, which it had done. It had not overlooked the flaws at the first stage but concluded that these were not so serious that they could not be remedied at the appeal stage.
Her dismissal had been characterised as a conduct rather than capability issue because she was found to lack commitment and to have failed to cooperate on a project which she was leading. It was apparent, over time, that she was hostile to the change and was motivated by her disagreement with the policy, making her conduct wilful. Given its clear findings as to what was required of Ms Adeshina as part of her job, the tribunal was entitled to find that she had acted in breach of the contractual obligation to do what was reasonably required of her.
As for the claim of race discrimination, the EAT was satisfied that the tribunal had considered the explanation provided by the Trust and found as a fact that it was not tainted by race discrimination. It was true that mistakes had been made during the process, but these were genuine and could be attributed to human error. The tribunal was satisfied that the dismissing manager genuinely believed in Ms Adeshina’s misconduct and was not informed, consciously or subconsciously, by her race.