Central Manchester University Hospitals NHS Trust v Browne: primary facts and inferences of discrimination

The case of Central Manchester University Hospitals NHS Trust v Browne concerns the inference of discrimination in a case of direct race discrimination and victimisation, and the burden of proof in cases of discrimination. Although this case was advanced under the ‘old’ legislation (the Race Relations Act 1976) it provides a useful examination of when inferences of discrimination can be shown, and the burden of proof in discrimination in cases under the new legislation (the Equality Act 2010) as well.

In the case of Central Manchester University Hospitals NHS v Browne the Claimant was subjected to an investigation on the grounds of misconduct and capability. The Claimant was a Divisional Director of the Respondent, responsible for financial affairs. Two other Divisional Directors (both of whom were white British) were also investigated. They were not told that their position was untenable and were not told that their jobs were in jeopardy. Further, they were not subjected to the capability procedure. The Claimant was told this told that his position was untenable, that he may lose his job, and he was subjected to the capability procedure.

The Claimant subsequently submitted a claim for direct race discrimination and victimisation under the Race Relations Act 1976 (as well as for unfair dismissal). The Claimant succeeded on all three counts at the original Employment Tribunal. It was found that the Central Manchester University Hospitals NHS Trust’s disciplinary procedure was insufficient and was in fact a sham. As a result of this, it was determined that the Respondent did not have a genuine and honest belief in the Claimant’s guilt. The Claimant had therefore been unfairly dismissed. Further, the Respondent had discriminated against the Claimant and subsequently victimised him as a result of the Employment Tribunal proceedings.

The Respondent appealed the Employment Tribunal’s decision on three grounds relating to the discrimination and victimisation, but did not appeal the unfair dismissal element. The grounds of the appeal were as follows:

1. There was a failure to construct a true hypothetical comparator; and
2. There was a failure to attribute the cause of the differential treatment afforded to the Claimant to discrimination rather than any other cause; and
3. There were insufficient grounds to support a finding of victimisation.

The Employment Appeal Tribunal rejected all three grounds of the appeal.

On the first ground, the Employment Appeal Tribunal found that the Employment Tribunal had correctly constructed a hypothetical comparator by asking the following questions:

1. What would the attributes of a comparator be?
2. Would such a comparator have been treated differently (to the Claimant)?
3. Was that difference in treatment attributable to discrimination?

The original ET had constructed a hypothetical white comparator and concluded that such an employee would have been treated differently to the Claimant on the grounds of his race. Important evidence on this point was a combination of, firstly, the difference in the way in which the white Divisional Directors were treated, secondly, the statistical evidence that the Claimant put in front of the Tribunal relating to the disproportionate number of Afro-Caribbean employees that were dismissed in relation to the number employed and, thirdly, the unreasonable treatment of the Claimant. The ET was therefore entitled to draw the inference of discrimination on the primary facts.

On the second ground, the Central Manchester University Hospitals NHS Trust stated that the ET had failed to take into account non-discriminatory reasons for the Claimant’s treatment. Again, the way in which the Claimant was treated by the Respondent, the differential treatment afforded to the white Divisional Directors, the summary rejection of the Claimant’s grievances, and the ‘worrying’ statistics (as well as some ‘dodgy’ evidence given by the Respondent’s witnesses) entitled the ET to draw the inference of discrimination on the primary facts.

On the third ground, the Employment Appeals Tribunal rejected the Respondent’s arguments on the same grounds as above – there were sufficient primary facts from which the ET was entitled to draw an inference of discrimination.

The important point to make here is that (addressing the current law) the Claimant simply has to make a prima facie case for discrimination on the primary facts. It is then the Respondent’s responsibility to produce evidence to refute discrimination as the reason. It is therefore very important that any and all evidence is gathered and that grievances are submitted. A simple equation is that the more (credible) evidence that is gathered of discrimination, the more likely that an Employment Tribunal claim will be successful.