Acceptance Of Offer

 Employment Law – Race Discrimination – Breach of Contract - Employee Treated Less Favourably than Comparator with Similar Characteristics

The case of Mamedu v Hatten Wyatt Solicitors [2008] involved a determination relating to race discrimination. The employee in this case originated form Nigeria and had trained there as both a barrister and a solicitor. Approaching the end of July 2006, the employee was offered a position as a locum solicitor for the employer.

At the beginning of August 2006, the employee accepted the offer. However, before the employee began work the employer withdrew the offer, and subsequently employed another candidate. Shortly thereafter, the employee brought a claim for race discrimination under the Race Relations Act 1976. He also brought a claim for breach of contract before the employment tribunal.

With regards to the race discrimination claim, the tribunal came to the conclusion that the employer had treated the employee less favourably than it would have treated a comparator with similar characteristics.

Furthermore, the tribunal also decided that the employer had failed to discharge its burden of proof in showing that the withdrawal of the offer had not been connected with the employee's colour or ethnic origin.

With regards to the breach of contract claim, the panel was of the opinion that the claim could not succeed considering that the employment was on a temporary basis. Furthermore, the employment was meant to terminate without notice at any time, which included termination prior to the commencement of the work.

The employer duly appealed against the finding of race discrimination and the employee brought a cross-appeal against the dismissal of his breach of contract claim.

The appeal before the Employment Appeals Tribunal was dismissed and the cross-appeal was allowed.

·        It was held that the employment tribunal required evidence in order for the tribunal to discharge the burden on the employer (that the withdrawal of the offer was not connected with the employee's colour or ethnic origin).

o            The evidence which would be required to satisfy the test of less favourable treatment by the employer against the employee rested with the employer only.

o            The tribunal was perfectly correct in finding that the employer had racially discriminated against the employee in the absence of any real evidence to the contrary. Accordingly, the tribunal's finding on the issue of race discrimination would remain.

·        It was decided that the tribunal was incorrect with regards to the breach of contract claim. The tribunal had applied the wrong test when it based its decision on whether the employee had been entitled to notice of termination of his contract prior to the commencement of work. This meant that the case was an example of an anticipatory breach of contract, and therefore the withdrawal of the offer of employment had amounted to a breach of contract.

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© RT COOPERS, 2008. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.