The case of Central Manchester University Hospitals NHS Trust v Browne concerns the inference of discrimination in a case of direct race discrimination and victimisation, and the burden of proof in cases of discrimination. Although this case was advanced under the ‘old’ legislation (the Race Relations Act 1976) it provides a useful examination of when inferences of discrimination can be shown, and the burden of proof in discrimination in cases under the new legislation (the Equality Act 2010) as well.

In the case of Central Manchester University Hospitals NHS v Browne the Claimant was subjected to an investigation on the grounds of misconduct and capability. The Claimant was a Divisional Director of the Respondent, responsible for financial affairs. Two other Divisional Directors (both of whom were white British) were also investigated. They were not told that their position was untenable and were not told that their jobs were in jeopardy. Further, they were not subjected to the capability procedure. The Claimant was told this told that his position was untenable, that he may lose his job, and he was subjected to the capability procedure.

The Claimant subsequently submitted a claim for direct race discrimination and victimisation under the Race Relations Act 1976 (as well as for unfair dismissal). The Claimant succeeded on all three counts at the original Employment Tribunal. It was found that the Central Manchester University Hospitals NHS Trust’s disciplinary procedure was insufficient and was in fact a sham. As a result of this, it was determined that the Respondent did not have a genuine and honest belief in the Claimant’s guilt. The Claimant had therefore been unfairly dismissed. Further, the Respondent had discriminated against the Claimant and subsequently victimised him as a result of the Employment Tribunal proceedings.

The Respondent appealed the Employment Tribunal’s decision on three grounds relating to the discrimination and victimisation, but did not appeal the unfair dismissal element. The grounds of the appeal were as follows:

  1. There was a failure to construct a true hypothetical comparator; and
  2. There was a failure to attribute the cause of the differential treatment afforded to the Claimant to discrimination rather than any other cause; and
  3. There were insufficient grounds to support a finding of victimisation.

The Employment Appeal Tribunal rejected all three grounds of the appeal.

On the first ground, the Employment Appeal Tribunal found that the Employment Tribunal had correctly constructed a hypothetical comparator by asking the following questions:

  1. What would the attributes of a comparator be?
  2. Would such a comparator have been treated differently (to the Claimant)?
  3. Was that difference in treatment attributable to discrimination?

The original ET had constructed a hypothetical white comparator and concluded that such an employee would have been treated differently to the Claimant on the grounds of his race. Important evidence on this point was a combination of, firstly, the difference in the way in which the white Divisional Directors were treated, secondly, the statistical evidence that the Claimant put in front of the Tribunal relating to the disproportionate number of Afro-Caribbean employees that were dismissed in relation to the number employed and, thirdly, the unreasonable treatment of the Claimant. The ET was therefore entitled to draw the inference of discrimination on the primary facts.

On the second ground, the Central Manchester University Hospitals NHS Trust stated that the ET had failed to take into account non-discriminatory reasons for the Claimant’s treatment. Again, the way in which the Claimant was treated by the Respondent, the differential treatment afforded to the white Divisional Directors, the summary rejection of the Claimant’s grievances, and the ‘worrying’ statistics (as well as some ‘dodgy’ evidence given by the Respondent’s witnesses) entitled the ET to draw the inference of discrimination on the primary facts.

On the third ground, the Employment Appeals Tribunal rejected the Respondent’s arguments on the same grounds as above – there were sufficient primary facts from which the ET was entitled to draw an inference of discrimination.

The important point to make here is that (addressing the current law) the Claimant simply has to make a prima facie case for discrimination on the primary facts. It is then the Respondent’s responsibility to produce evidence to refute discrimination as the reason. It is therefore very important that any and all evidence is gathered and that grievances are submitted. A simple equation is that the more (credible) evidence that is gathered of discrimination, the more likely that an Employment Tribunal claim will be successful.


Redmans Employment Team deal with employment matters for both employers and employees, including drafting employment contracts and policies, advising employers and employees on compromise agreements, handling day-to-day HR issues, advising on restructures, and handling Employment Tribunal cases for both employers and employees

Share →

Leave a Reply

Your email address will not be published. Required fields are marked *


4.46 Average

13 Reviews


Couldn’t be happier with how Redmans successfully handled our seemingly tricky case. By being clear and detailed every step of the way, with the utmost professionalism and courtesy, they made it an informative and eye-opening process, taking the stress out of the situation and ultimately delivered what you would want from such a service. I fully appreciate everything they have done, and if I am ever in need of such services in the future, they will be the first number I contact. Excellent.

Posted 1 hour ago


Excellent work delivered with great quality

Posted 2 hours ago


Chris Hadrill was a great help both in terms of his advice and his expertise. He explained my options to me clearly and concisely enabling me to quickly make the right decision for me in the circumstance. I would not hesitate to recommend Chris or Redmans to friends or colleagues, and would certainly make Redmans my first port of call should I require a similar service in the future.

Posted 3 hours ago


Redmans gave excellent advice and helped me understand everything in clear concepts. Thank you!

Posted 3 hours ago


Resolved my issues

Posted 4 hours ago


Quick fast professional service.

Posted 4 hours ago


"Prompt, efficient and practical advice that resulted in me getting some additional money tax free."

Posted 5 hours ago


Patient and thorough advice given to me around my Settlement Agreement

Posted 4 days ago


"Excellent service, getting back to you promptly giving you very good advice."

Posted 5 days ago


I found Chris Hadrill to be an excellent help, he is very knowledgeable and gives good ,concise ,strategic advice .He makes himself readily accessible when you need him.I would personally highly recommend him.

Posted 6 days ago


Professional, efficient and reliable service provided. I strongly recommend them and I would use this service again.

Posted 1 week ago

Our awards

Request a callback

Your name

Your email

Your telephone number

Contact us

Please feel free to discuss your own position and concerns. Contact your nearest office on:

T: 020 3397 3603