Jagbir Sidhu v Our Place Schools Limited
[2023] EAT 70
Henna Jaleel v Southend University Hospital NHS Foundation Trust
3 February 2023
[2023] EAT 10
Employment Appeal Tribunal
A doctor claimed her boss discriminated against her because of her race. The court said there wasn't enough proof of racism regarding the job re-advertisement or interview. However, the court ruled the doctor was unfairly dismissed because the way she was treated was really bad and broke the rules of a fair employment relationship.
Key Facts
- •Claimant, a consultant of Asian and Pakistani origin, held a fixed-term DME role (Director of Medical Education).
- •Her predecessor held the role for nine years without re-advertisement.
- •After work conflicts and sickness absence, the claimant declined to resume DME duties.
- •The respondent re-advertised the DME post at the end of the three-year term.
- •The claimant applied but requested the line manager (who was on the interview panel and had been the subject of her grievance) be recused. This request was refused.
- •The claimant alleged direct race discrimination in the decision to re-advertise and harassment related to race in the interview conduct.
Legal Principles
Burden of proof in Equality Act 2010 discrimination claims; Section 136(1)-(3) dictates that if facts suggest a contravention, the court must hold it occurred unless the respondent shows otherwise.
Equality Act 2010, Section 136
To establish a prima facie case, the claimant must prove facts from which a reasonable tribunal could conclude discrimination occurred. Merely showing a difference in treatment and race is insufficient; 'something more' is needed.
Base Childrenswear Ltd v Otshudi [2019] EWCA Civ 1648, Madarassy
The tribunal's evaluation of whether the burden shifts is fact-specific and only reviewable on perversity grounds by the EAT.
Various cases cited, including Raj v Capita Business Services Limited [2019] IRLR 1057
Inconsistent or untrue employer explanations can be considered in assessing whether the burden shifts.
Otshudi [2019] EWCA Civ 1648
Harassment under Equality Act 2010, Section 26: Unwanted conduct related to a protected characteristic that violates the victim's dignity or creates an intimidating, hostile, degrading, humiliating, or offensive environment.
Equality Act 2010, Section 26
Outcomes
Appeal dismissed.
The tribunal correctly applied the law regarding the burden of proof. Its conclusion that the burden did not shift to the respondent on either the direct discrimination or harassment claims was not perverse.
Claim of direct race discrimination (re-advertisement of DME role) dismissed.
The claimant failed to provide sufficient evidence beyond a difference in treatment and race to shift the burden of proof. While the claimant’s comparison with her predecessor was noted, differences in their circumstances and contracts were deemed significant.
Claim of harassment related to race (interview conduct) dismissed.
While the tribunal found the respondent's conduct inappropriate and a breach of trust and confidence, this did not automatically shift the burden of proof on the harassment claim. The claimant failed to demonstrate that the conduct was 'related to' her race.
Unfair constructive dismissal claim upheld.
The respondent's conduct during the interview, specifically the line manager's refusal to recuse himself, was a repudiatory breach of the implied term of trust and confidence.