Legal Updates

Employment Law – Racial Discrimination – Grievance Procedures – Harassment - Employee Assessment – Redundancy – Victimisation – Racial Discrimination

The recent case of Miah v Camden London Borough Council [2009] involved an employment dispute relating to discrimination on racial grounds. The employee in this case was of Bangladeshi origin and worked for the employer in the position of “Youth Offending Team member/education officer”. There were also two sub-teams involved:
 

• The “Early Intervention Team” – This team dealt with young people not known to the court; and
• The “Reduction Team” - This team dealt with young people who were known to the court.

Initially the employee in question carried out duties for the Reduction Team. In March 2003, he was transferred to the Early Intervention Team.

During the period of employment, his managers raised a number of concerns which related to the employee’s communication skills. His managers also alleged that he had been performing poorly in his role.

Subsequent to the allegations, on the 21st of March 2005, the employee presented a grievance to his employer. The grievance was brought against his manager and outlined a number of incidents which had occurred between him and his manager. He claimed his manager’s allegations had been made on the grounds of race.

The employee’s grievance was upheld only on one minor count, a count which did not relate to race.

Whilst these events unfolded, the employee was transferred to a different position. After he had been transferred, an independent assessment took place in respect of the employee’s skills. The results of the independent assessment revealed that the employee’s:

“General Intellectual Ability, General Language Ability and Working memory are all in the poor to very poor range. Overall Learning is average. Literacy related tasks: Speed of Single Word Reading is in the above average range while Reading Accuracy and Spelling are in the average range. Phonological awareness is in the very poor range while Writing is legible but stylistically immature. Factual and Inferential comprehension of complex print and aurally presented information are both limited”.

Then, on the 14th of October 2005, the employee’s new manager presented the employee with a written invitation to attend a meeting in which a plan to improve his performance could be discussed.

Subsequently, the employee brought another grievance on the 30th of November. The employee stated in his grievance letter that he believed his continuous harassment was due to his race.

Due to a number of changes in the relevant legislation, a decision was implemented to redefine how the department engaged with young people. Accordingly, a restructure was considered in May 2006. Eventually in August 2006, it was suggested that an educational psychologist would be best suited to take over the employee’s responsibilities and therefore the employee’s post would no longer meet the team requirements.

On the 12th and the 28th of October 2006, further grievances were raised by the employee. Both grievances concerned the restructuring in question. On the 10th of November, the employee elected to accept an enhanced redundancy package. However, the employee stated he had been forced into accepting it.

The employee’s grievances were dismissed.

The employee complained of the following when presenting his originating application to the employment tribunal:

• Unfair dismissal;
• Racial discrimination;
• Religious discrimination;
• Harassment; and
• Victimisation

The Tribunal decided to uphold some aspects of his racial discrimination and victimisation claims. Accordingly, it held that he had been unfairly dismissed by reason of redundancy.

In considering the employee’s complaints, the tribunal made reference to s.1(1)(a), s.4(2)(c) and s.54A(2) of the Race Relations Act 1976. It also considered a number of previous cases relating to discrimination. It should be noted however, that it did not:

• Identify the attributes of the hypothetical comparator; and
• Consider the question of whether there was ‘less favourable’ treatment as opposed to treatment which was unfavourable.

The authority subsequently appealed.

The authority argued that the tribunal had failed to detail adequate reasons for its decision. Furthermore, the authority stated that the tribunal had implemented a shorthand formulation in applying the first stage of the two-stage test, identified in case authority, which had meant that the tribunal had been erroneous in reaching its decision.

The appeal was allowed.

It was held that a Tribunal had a duty to examine in detail all the evidence presented before it to determine whether, a hypothetical person with the same relevant characteristics as the employee would have been treated any differently (considering all other aspects being equal save the issue of race).

Therefore, the task of the Tribunal at Stage 1 was to consider whether the employee in question had effectively proven facts from which the Tribunal could conclude that the employer had committed an unlawful act of discrimination in the absence of an adequate explanation as to why such an act may have occurred.

Furthermore, it was held that that requirement applied to:
 

• Proving the relevant circumstances to establish a cause of action under the 1976 Act;
• The fact that there had been any less favourable treatment; and
• The fact that such an act had been committed on racial grounds.

It was also held that it was not necessary for a Tribunal to go through an express and sequential process in all cases (“Stage 1”, “Stage 2” etc).

In the circumstances of this case, it was held that the Tribunal had not constructed the appropriate hypothetical comparator. In addition, the Tribunal had not constructed the test at Stage 1 in an adequate way, which therefore provided no basis for Stage 2 testing as to whether the explanation the employer had provided had not been based on grounds of race.

Furthermore, it was decided that the Tribunal had been erroneous in its application of the two stage test to the employee’s claim based on victimisation. Therefore, the Tribunal’s decision on race discrimination, harassment and victimisation could not be allowed to stand.

If you require further information please contact us at [email protected] or Visit http://www.rtcoopers.com/practice_employment.php

© RT COOPERS, 2009. 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.