Veitch Penny LLP - Exeter | Crediton, Devon

Case

The Law Society v Bahl
Employment Appeal Tribunal - (31 July 2003)

Issues

The Issues

(1) Sex discrimination
(2) Race discrimination
(3) Evidence

Facts

In 1990, Kamlesh Bahl, an Asian woman, was elected as a member of the Law Society Council, as a representative of the Commerce and Industry Group. She was elected as Deputy Vice-President of the Law Society in 1998. A year later, she was promoted to the post of Vice-President.

A formal complaint was filed against Ms Bahl in December 1999 under the Law Society’s Dignity at Work Policy. It was alleged that the complainant, a member of staff, had been persistently bullied and intimidated for an extended period of time. This caused the complainant to suffer a stress-related illness. An investigation was commenced, and the complainant’s complaint was upheld. Ms Bahl was suspended, pending a meeting to discuss whether she should be removed from the office. Ms Bahl resigned before the meeting was held.

In March 2000, Ms Bahl entered a complaint at the Employment Tribunal against the Law Society, its President, the Secretary-General and the Head of Human Resources for unlawful race and sex discrimination. It was submitted that Ms Bahl had suffered direct discrimination arising out of their handling of the complaint, and the way in which it had been investigated. A further complaint was lodged in respect of discrimination by way of victimisation against the Law Society and other staff members, in connection to the way she was treated after she had lodged her complaints of sex and race discrimination.

The tribunal found that Ms Bahl had been subjected to discrimination based upon race and/or sex, from the Law Society, the President and the Secretary-General. The President and the Secretary-General had committed acts of unconscious race and sex discrimination, for which the Law Society was liable. The complaints made against the Head of Human Resources and of victimisation were dismissed or withdrawn.

The Law Society, the President and the Secretary-General appealed the decision. Ms Bahl cross-appealed against the decision of unconscious discrimination, arguing that the tribunal ought to have to have arrived at a finding of direct conscious discrimination.

Decision

The Employment Appeal Tribunal had to consider whether the original tribunal had been incorrect in assessing race and sex discrimination. It found that the original tribunal had erred in a number of ways.

It had failed to distinguish between the allegations of race and sex discrimination. Instead, it should have divided the two and made clear the evidential basis upon which it was drawing the inferences of unlawful discrimination. The evidence which justified race discrimination was generally quite different from that which justified an inference of sex discrimination, and vice versa. In contrast, the tribunal had considered both together without assessing the evidence in respect of each ground. The cases of Chapman –v- Simon [1944] and Governors of Warwick Park School –v- Hazlehurst [2001] confirmed the importance of being able to properly identify the primary facts and the inferences which could be drawn from them. It had been a mistake to rely on the hostility of the President and the Secretary-General against Ms Bahl as evidence of discrimination. The case of Glasgow City Council -v- Zafar [1998] stated that hostility in itself did not necessarily mean that a finding of discrimination. The tribunal had failed to consider that their hostility might have been for reasons other than Ms. Bahl’s race or gender.

In addition, in finding that the President had been guilty of unlawful discrimination, the tribunal had used an unsuitable comparator. It had inferred that the President had discriminated against Ms. Bahl on the basis of prior treatment of the comparator by the Law Society, as the President had not been involved in the investigation regarding the comparator’s conduct.

Comments

There was no evidence against the President and Secretary-General which could have allowed the Tribunal to have inferred discrimination. Consequently, the Law Society’s own liability also fell away.