05th April 2017

Does an incompetent handling of a grievance give rise to an inference of discrimination?

In the case of Kent Police v Bowler UKEAT/0214/16/RN the EAT has held that just because a grievance may have been handled in an incompetent and lackadaisical manner this does not necessarily give rise to an inference of discrimination.

Background

The Claimant was a police officer with approximately 25 years service who during the period of 2010 to 2011, obtained a series of promotions in the force.

In December 2011 there was a change to the management team and the Claimant alleged that as a consequence, his subsequent attempts for promotion were thwarted. The Claimant asserted that he had been subject to at least 6 instances of race discrimination and 8 complaints of detrimental treatment because he had done protected acts. As a result, he pursued a grievance which he claimed was not treated with the seriousness which it deserved and that this created an inference of discrimination.

In the Employment Tribunal, the Judge concluded that there was a prima facie case of less favourable treatment towards the Claimant and that this was due to his race. This was subsequently challenged by the Respondent at Appeal.

At Appeal the Respondent argued that:

  • There were insufficient findings regarding the investigation into the Claimant’s claims of race discrimination; and
  • The material relied upon to shift the burden (failings in terms of the report and investigation) were insufficient so as to establish a prima facie case of less favourable treatment on grounds of race.

Decision  

In determining its judgment the EAT referred to the case of Igen v Wong which warned the Tribunal of being too eager to infer that unreasonable conduct could infer discriminatory behaviour. Whilst the EAT accepted that there were failings in the competency of the grievance process, it was concluded that this alone was not sufficient so as to amount to discrimination. The burden of proof would be on the Claimant to show that such actions amounted to discrimination.

Commentary

In this case, the EAT highlighted the importance of the Tribunal not making a leap from a finding that a process had not been carried out competently to then extend this to state that this “indicated a stereotypical view of race complainants.” This is because the Tribunal would be drawing an assumption based on unproven and unsupported evidence.

The EAT has therefore established that where there is inadequate material available to the Tribunal, in order to draw an inference, then it would not be appropriate for the Tribunal to draw its own conclusions.

*All information is correct at the time of publishing

Julie Duane

Napthens LLP – Employment Law Advocate

Julie is one of our Employment Law Specialists from Napthens Solicitors. Read more

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