Can a complete, non-discriminatory explanation for an action exclude the possibility of discrimination claim?
Not necessarily, held the Court of Appeal in Iwuchukwu v City Hospitals Sunderland NHS Foundation Trust.
The Claimant was a consultant surgeon employed by 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. He was later referred to the GMC. He raised a grievance with the Chief Executive (which he later repeated) but the Trust declined to consider it because it was outside the time limit. He was subsequently 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 employment tribunal upheld the Claimant's claims of direct race discrimination and victimisation for failing to investigate the grievances. The Trust's explanation that the grievances were an attempt to delay or derail the capability process, was rejected. The Trust appealed.
The EAT allowed the Trust's appeal. The Trust's reasoning was a complete (albeit unsatisfactory) explanation for its behaviour, unrelated to race.
The Court of Appeal upheld the Claimant's appeal. The tribunal had properly assessed the evidence and found that the burden of proof was reversed. The Claimant had been excluded without proper review for a significant period of time. The tribunal had identified the 'additional factor' that shifted the burden of proof to the Trust. The Trust's explanation was rejected partly because the first grievance had been raised before the capability process began. In addition, once the tribunal had rejected the Trust's explanation, it was possible to see that the reason was tainted by discrimination on the grounds of race. There will be cases where a complete explanation is untainted by racial considerations but each case must turn on its own facts.
Thanks to James English of Ward Hadaway for preparing this case summary.