Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

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.

About

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 Call 020 3397 3603 to speak to one of the members of our employment team or email us on enquiries@redmans.co.uk. Redmans have offices in Richmond, Chiswick, Hammersmith, Fulham, Kingston, Wimbledon, Ealing, Kings Cross and Marylebone (meetings strictly by appointment only).

Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

Share →

Leave a Reply

Your email address will not be published.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

 

Our awards

Request a callback

    Your first name (required)

    Your last name (required)

    Your email (required)

    Your telephone number (required)

    Brief details of your enquiry

    Testimonials

    4.81 Average

    313 Reviews

    Anonymous

    Sacha was very thorough and very helpful, with great advice on when to act and when to wait on my case.

    Posted 3 days ago

    Anonymous

    I have been very pleased with the support I got from Redmans Solicitors on my case with my employer. Caroline has always helped me to put things in perspective and showed me different scenarios ultimately to help me taking the right decision. She was very professional and always available when I needed, and at the same time also emphatic which I found also really important to establish a strong relationship. Will definitely recommend!

    Posted 5 days ago

    Anonymous

    Prompt and efficient response to my enquiries. Excellent negotiating skills with my employer which considerably improved the terms of my settlement agreement.

    Posted 5 days ago

    Anonymous

    Very quick and professional service , Rana was very helpful

    Posted 6 days ago

    James G

    Very professional, knowledgeable and kept me informed at every stage of my case. I would highly recommend Redmans.

    Posted 1 week ago

    Pravina P

    Chris was really good and help solve my issues with current company. I would recommend him to anyone.

    Posted 1 week ago

    Paul L

    Sacha was extremely helpful in my matter. I would not hesitate you use Sacha or Redmonds again. Everyone was very helpful.

    Posted 2 weeks ago

    Monique N

    I had Mel Chin helping me with a settlement and she was very professional and reliable throughout my case. Mel provided me with a good understanding of what was happening and gave suggestions on routes I could take. My case was resolved and closed promptly although the opposing side were very difficult to deal with. A very big thank you to Mel and Chris.

    Posted 2 weeks ago

    Jackie C

    My first ever experience needing the services of a solicitor; cannot speak highly enough of Mel and Chris’s personable, reassuring and straight to the point advice in dealing with my settlement agreement. They put me at ease during an extremely stressful time. I am equally as happy with the outcome, as l am their professional services.

    Posted 3 weeks ago

    ""

    Really happy with the service. All very efficient. Mel rattled through things very fast, however was great whenever I needed to stop and ask a question! Would definitely return to Redmans if I ever needed Legal advice.

    Posted 3 weeks ago

    Peter F

    Very helpful and clear advice, would highly recommend.

    Posted 3 weeks ago

    William A

    Second time I have had to use Redmans. They did not disappoint. They are fast , efficient and friendly. I have already recommended them to friends and colleagues. I hope I dont have to use them again but if I have to , they are the solicitors for me.

    Posted 3 weeks ago

    Fleeta C

    Great service with tantastic communications. The solicitor responsible is extremely knowledgeable and was responsible for bringing a timely and desired solution.

    Posted 3 weeks ago

    Veronica M

    Extremely helpful, starting from a request for advice at very short notice, to dedicating time for me to understand and review all documents thoroughly.

    Posted 4 weeks ago

    Sophie R

    Very efficient and professional service. Chris was very empathetic, knowledgeable and personable. Highly recommended.

    Posted 1 month ago

    Melanie M

    Very happy with the detailed advice provided from Redmans. They also helped me to secure a higher settlement than originally offered by my employer and were extremely diligent. I first spoke with Chris at relatively short notice and then Sacha dealt with my case. Would definitely recommend and use again in the future if needed.

    Posted 1 month ago

    Anonymous

    Redmans helped me with a work related issue, which was resolved quickly and professionally. I would definitely recommend this company.

    Posted 1 month ago

    James F

    Great people, really friendly and professional helped with everything that I needed.

    Posted 1 month ago

    Anusha S

    My case was handled by Sacha who was very thorough and helped me to achieve a good outcome with my employer. Sacha was very personal, professional and helped me during quite a stressful time, so I am hugely grateful to her and to Redmans. This was my first time engaging with a law firm so I wasn't sure what to expect but I can definitely say that it was a good experience overall and I ended up better off due to having the help of an experienced and proactive solicitor on my side.

    Posted 1 month ago

    Diane P

    So grateful that I contacted Redmans to deal with my Redundancy Agreement. Everything from the initial call to the completion of the matter was professional, efficient and effective. I was listened to, had everything explained simply and kept informed of every step. I received super advice and the costs were very competitive. I would highly recommend them to anyone seeking similar help. First class service - thank you

    Posted 1 month ago

    Chris L

    It was a very efficient and effective service - Would recommend.

    Posted 1 month ago