DIRECT DISCRIMINATION : LIMITATIONS : RACE DISCRIMINATION : VICTIMISATION : COMPLAINTS FOUND TO BE OUT OF TIME : RELEVANCE OF COMPLAINTS IN DETERMINING FURTHER COMPLAINTS PRESENTED WITHIN TIME: COMPARATORS

In the circumstances, where a tribunal had been considering various complaints of direct discrimination and victimisation it had appreciated that acts which had been ruled to be out of time and from which it could infer less favourable treatment on the grounds of race constituted background evidence only but might inform its decision on the live complaints.

The appellant employer (C) appealed against findings of direct racial discrimination and victimisation made against it on a complaint by the respondent employee (W). W alleged that a colleague (F) had directed a racist and derogatory comment towards her. Following that, she complained of a lengthy sequence of events during which her relationship with F deteriorated and during which she raised allegations of racism by F with various senior colleagues and brought various grievances, none of which were upheld. Ultimately, both W and F were demoted and had their rates of pay reduced identically. W presented an ET1, making 15 separate complaints of discrimination and victimisation. The tribunal ruled that nine of them, including the racist comment, were out of time but found that the six live complaints were made out. Compensation was awarded in a remedy judgment which was not subject to appeal. The tribunal found that the racial comment and C's failure to take action against F for the comment were facts from which the tribunal could infer less favourable treatment against W on the grounds of her race. C submitted that (1) the tribunal had made findings of unlawful discrimination in relation to two complaints which had been ruled to be out of time; (2) the tribunal had erred in failing to consider a comparator in respect of the extant victimisation claims based on W's demotion with a reduction in her hourly rate of pay.

HELD: (1) It was clear from the layout of the tribunal's reasons that it appreciated that acts which had already been ruled to be out of time constituted background evidence only but that they might inform their decisions on the live complaints, Eke v Customs and Excise Commissioners (1981) IRLR 334 EAT, Chattopadhyay v Headmaster of Holloway School (1982) ICR 132 EAT, Din v Carrington Viyella (Jersey Kapwood) (1982) ICR 256 EAT and Qureshi v Victoria University of

Manchester (2001) ICR 863 EAT applied. Furthermore, it was not open to C to complain that the award of compensation might have reflected complaints which were out of time because there had been no appeal against that judgment. (2) The "reason why" question articulated in relation to direct discrimination in Shamoon v Chief Constable of the Royal Ulster Constabulary (2003) UKHL 11, (2003) 2 All ER 26 applied equally to cases of victimisation. It was legitimate for a tribunal to ask itself the reason why the employer acted as it did in answering both direct discrimination and victimisation questions and the tribunal in the instant case had been perfectly entitled to do so, Shamoon and Chief Constable of West Yorkshire v Khan (2001) UKHL 48, (2001) 1 WLR 1947 applied.

Appeal dismissed

CARTAMUNDI UK LTD v P WORBOYES (2009)

EAT (Judge Peter Clark, P Gammon MBE, L Tinsley) 4/12/2009

“Lawtel”: 21.12.09