Race discrimination

19 October 2017

Mr Kansal was northern Indian, Punjabi in origin and a UK national. He brought nine specific complaints of direct discrimination against his employer. Two of those complaints made it to the EAT.

The first was that he had been side-lined and excluded from transactions; he had been left out of pitches. The second was that he had been told that he could no longer work from home.

The employment tribunal had found that the employer had not discriminated against him on grounds of race by having excluded him from pitches. Other employees of Indian ethnic origin had taken part. If race had been the reason for leaving Mr Kansal out, those colleagues would have been excluded too.

The EAT held that the tribunal’s approach was wrong. It hadn’t identified whether Mr Kansal’s treatment was less favourable than that given to an actual or hypothetical comparator, nor had it identified why he had been excluded from pitches. Instead the tribunal had found that as two people who broadly shared Mr Kansal’s ethnicity had been involved in the pitches, the company didn’t exclude employees from transactions because of their Indian ethnic origin. But that didn’t mean that Mr Kansal had not been discriminated against, the EAT said.

As to the second issue, the EAT held that the tribunal had failed to find precisely why Mr Kansal had been instructed not to work from home. The tribunal had concluded that there was no reason to take the situation other than at face value (whereby Mr Kansal had been abusing the facility to work at home). But the tribunal hadn’t taken account of a comparator - one of Mr Kansal’s colleagues who had gone to view a house while working from home. The tribunal did not identify the reason for Mr Kansal’s treatment, but was able to say with confidence that race was not it. That was insufficient, the EAT said.

So, Mr Kansal’s appeal relating to those two grounds of direct discrimination succeeded and the case will now go back to the tribunal to be reconsidered. However, a third ground for appeal – alleged victimisation (a lower-than-expected bonus payment) – failed. The burden was on Mr Kansal to establish that he had been paid less than he should have been, and he hadn’t done that.

Remember that discrimination is fact and situation-specific. An employer who doesn’t discriminate against a particular protected group as a matter of course may still be found to have discriminated in specific cases.

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