Although unlawful direct discrimination can occur when a person makes stereotypical assumptions about someone else, the Employment Appeal Tribunal (EAT) held in Chief Constable of Kent Constabulary v Bowler that a finding of unreasonable conduct is not enough for a tribunal to draw an inference of less favourable treatment on grounds of race.
Mr Bowler, a police officer with 25 years’ experience, claimed he was discriminated against because of race because his attempts to be promoted were thwarted.
He pursued a grievance and appeal alleging race discrimination but these were not upheld. He claimed that those dealing with his grievance and appeal hearing did not treat them with the seriousness they deserved and claimed that that this amounted to race discrimination. He also alleged that he had been victimised. He made six allegations of less favourable treatment on race grounds as well as eight complaints of detrimental treatment because he had done protected acts.
The tribunal rejected his complaint that the failure to promote him amounted to race discrimination. His complaint that he had been subject to race discrimination because of the failure to investigate his grievance and inadequacies in the grievance report were upheld.
In particular, the tribunal found the grievance officer’s “lackadaisical approach” indicated that he held a stereotypical view that Mr Bowler was being over-sensitive because of his race, and that he would not have treated another grievance in a similar offhand manner. On that basis, it held that there was a prima facie case of less favourable treatment on the ground of race against Mr Bowler.
Kent police appealed, arguing that the failings identified by the tribunal in the grievance investigation and report were not sufficient to transfer the burden of proof to them as the employer.
Although unlawful direct discrimination can occur when a person makes stereotypical assumptions about someone else, tribunals cannot rely on unproven assertions. There must be some evidence that allows them to infer that a putative discriminator held a stereotypical assumption about race and that this operated on their mind when treating a complainant in the way alleged, which this tribunal failed to do. Although it was generally very critical of the way in which Mr Bowler’s grievance had been handled, this was more the result of incompetence rather than discrimination.
Having considered the tribunal’s reasoning carefully, the EAT concluded that it had made a leap from a finding that the officer handling the grievance acted incompetently and had a lackadaisical attitude - both of which were unreasonable but not in themselves less favourable treatment - to a conclusion that this indicated a stereotypical view of race complainants. It had done so based on unproven and unsupported assumptions. In the absence of adequate material from which this inference could be drawn the tribunal was not entitled to conclude that a prima facie case of less favourable treatment on race grounds had been established by Mr Bowler.
As the tribunal decision constituted an error of law, the EAT overturned the finding of unlawful race discrimination in the way his grievance had been dealt with and remitted the matter back to the tribunal for reconsideration.