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Criminal Prosecution cannot be Racial Discrimination by Employer

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[Thanks to Neil Addison of Palmyra Chambers for preparing this case summary]

Where an employer is a public prosecutor is a decision to prosecute an employee something that can be challenged in the Employment Tribunal ? Not according to Mr Justice Keith in LB of Waltham Forest v Martin

The Claimant was employed as a Bus Driver and was also a local resident receiving benefits. When he received a bonus he failed to report this to the benefits department and subsequently the Council decided to prosecute him for benefit fraud. The Claimant alleged that the decision to prosecute rather than imposing an administrative penalty was racially motivated and brought Employment Tribunal proceedings under the Race Relations Act. 

The EAT held that the decision to prosecute Mr Martin even if racially motivated was a decision made by the council in its role of public prosecutor and not employer therefore any claim of racial discrimination had to be brought in the County Court. The EAT noted that the same principle applied to any public authority whose decisions cannot be challenged in the ET merely because they happen to affect an employee