A non-discriminatory explanation for an action does not necessarily exclude the possibility of a discrimination claim

The Court of Appeal (‘CA’) in the recent case of Iwuchukwu v City Hospitals Sunderland NHS Foundation Trust has ruled that a discrimination claim could be made out even where the respondent’s explanation for the dismissal was non-discriminatory.

The decision has confirmed that each case will ultimately turn on its individual facts and, although there may be cases where the Employment Tribunal (‘ET’) finds a “complete explanation” for the acts complained of which are innocent in the sense that they are untainted by racial considerations, this was not the case on this occasion.

The Claimant was a consultant surgeon employed by City Hospitals Sunderland NHS Foundation Trust (‘the Trust’). He specialised in breast reconstructive surgery. Following concerns about his conduct and capability, including an incident where a patient was set on fire during an operation, the Trust launched an investigation and placed restrictions on his practice. Despite raising a grievance, he was dismissed on the grounds of capability.

He brought a number of claims including discrimination and victimisation on the grounds of race (he was the only consultant of black African ethnicity).

The ET was satisfied that the Claimant could show a prima facie case and therefore the burden of proof shifts to the Trust to show that it did not discriminate. The ET upheld the Claimant’s claims for direct race discrimination and victimisation for failing to investigate the grievances. The Trust appealed.

The ‘Employment Appeal Tribunal’ (‘EAT’) allowed the Trust's appeal. The EAT contended that the Trust's reasoning was a complete explanation for its behaviour, unrelated to race.

The CA upheld the Claimant’s appeal on the basis that such a comparator (who is not of the same race) would have been allowed to proceed with the grievance given that failing to do so would have amounted to a breach of the Trust’s Policy. Additionally, the explanation by the Trust that the grievance was out of time was rejected. Therefore the CA concluded that the Claimant was less favourably treated and his dismissal was rendered unfair.

Discrimination claims can arise from the decisions of employers even where the explanation for the decision is to be otherwise. This decision is important as employers must to be aware of the potential claims the court would be willing to consider despite an employers’ intentions being far from what is alleged.

There will be cases where a complete explanation is untainted by racial considerations but each case must turn on its own facts. Accordingly, this is a current demonstration of the Tribunals wide discretion in this area.

The amount of compensation awarded to the Claimant will now be considered at an ET. It is important to note that the recent increase in the ‘Vento Bands’ for compensation for injury to feelings will need to be applied:

Lower Band (less serious cases): £900-£8,800;
Middle Band: £8,800-£26,300;
Upper Band: (most serious cases) £26,300-£44,000.