Veitch Penny LLP - Exeter | Crediton, Devon

Case

Bradford Hospitals NHS Trust v Al-Shabib. Employment Appeal Tribunal (7/10/02)

Issues

(1) Race Discrimination - Practice and procedure
(2) Victimisation

Facts

The Applicant was employed as a researcher by the Respondent, and duly joined the staff gym. Upon joining, he agreed to abide by its rules. For safety reasons, the gym was limited to members only, and non-members were not permitted into the gym. If the gym rules were breached, the member concerned would lose their membership, without refund, and be excluded from using the facilities.

The Applicant brought his wife and child into the gym, and his wife used the gym equipment. Complaints were received. Following an internal investigation, the Respondent cancelled the Applicant's membership.

When the Applicant complained to the Employment Tribunal, it held that the Applicant had been victimised contrary to Section 2 of the Race Relations Act 1976 on the basis that the Applicant had suffered discrimination by way of victimisation.

The Respondent appealed.

Decision

The appeal was allowed and the decision remitted to the Employment Tribunal.

The Appeal Tribunal held that the original decision had been incorrect in making a finding of victimisation as the issue had not been raised in the Applicant's IT1. The Tribunal's jurisdiction is such that is can only make decisions based upon the complaints before it.

Even if the Tribunal could make a finding of victimisation, the matter would have still had to be remitted as the Respondent would not have had an opportunity to make submissions and it would be contrary to the rules of natural justice.

In addition, the incorrect approach was taken in assessing race discrimination. The Employment Tribunal should have asked the following questions:

(1) Has the employer treated the Applicant less favourably than it would treat other persons?
(2) If this is the case, was the less favourable treatment on unlawful grounds?

The Employment Tribunal's decision had been made without the requisite level of evidence. It had failed to distinguish between the issues of reasonableness and less favourable treatment. Accordingly, the Employment Tribunal should to have compared how the Applicant was treated against that of someone not of the same origin, who had also breached gym rules.

Comments

In this case, the Employment Appeals Tribunal found that a tribunal had erred in holding that the Respondent discriminated against an employee of Iraqi origin when it failed to consider how the employer would have treated a person not of Iraqi origin who had behaved in the same manner. Any member who joined the staff gym would be subject to the same procedure.

Peter Taylor: 11/12/02