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Breaking glass

It is often difficult for applicants in discrimination cases to point to evidence that backs up their claim. The case of Rihal v London Borough of Ealing (IDS, 764; 2004, IRLR 642) is no exception. However, the Court of Appeal has just said that the tribunal was right to look at the wider picture and to include evidence that a glass ceiling operated in relation to non white employees.

This was a GMB case backed by Thompsons.

What were the facts?

Mr Rihal, a Sikh born in India but resident for many years in the United Kingdom, worked for Ealing housing department in the central technical team as a surveyor.

By 1992 he was one of two senior surveyors, along with Mr Relf, who was white. They were equal in their qualifications and skills. They worked for the central technical team, headed up by Ms Herman, who was also in charge of the capital programmes subdivision. When the head of one of the other subdivisions retired in 1992, Mr Relf acted up.

He, in turn, retired in May 1996 but was not replaced. Instead, Mr Dicks, a white employee junior to Mr Rihal, was promoted and the two of them shared Mr Relf's responsibilities.

In September 1996, Ms Herman retired and was replaced as head of the central technical team by Mr Foxall, who was white. Her place as head of the capital programmes subdivision was taken on an acting-up basis by Mr Gaffikan, who was white and had fewer qualifications and less experience than Mr Rihal.

Following a major reorganisation of the department in 1998, Mr Rihal applied to assimilate to a number of posts but was unsuccessful. He lodged a grievance, but this was not dealt with for over 14 months.

What were Mr Rihal's complaints?

Mr Rihal made the following complaints to the tribunal:
He was not appointed to act up when Mr Relf retired
The duties allocated to him when Mr Relf retired were inappropriate
He was not assimilated or appointed to any of the new posts
The delay in dealing with his grievance was unacceptable

The tribunal decided in his favour, saying there was a glass ceiling in operation in the housing department. It pointed to '...a "force" in existence throughout that prevented [his manager] and others from picturing a turban-wearing Sikh with a pronounced accent in the managerial roles.' It decided that the 'force' in question was a racial ground.

The council appealed on all grounds, except against the finding that Mr Rihal was discriminated against when he was not appointed to act up when Mr Relf retired.

What did the Court of Appeal decide?

The Court of Appeal agreed on all counts. It said that the main issue to decide was whether the tribunal had been entitled to conclude that Mr Rihal's less favourable treatment was because of his race. The council complained that the tribunal had adopted too general an approach and had made inadequate findings of fact.

The court disagreed. It said that the tribunal had taken the proper approach to the comparative exercise required under the legislation Ð in other words, it had looked at all the evidence before it to decide whether he would have been treated differently had he been white.

In particular, it emphasised that the tribunal was entitled to look at the 'wider picture' in coming to its conclusions because Mr Rihal had made allegations of discrimination over a long period of time. The tribunal was right, therefore, not to treat the individual incidents in isolation from one another.

Instead, it criticised Ealing for trying to divide the period up as artificial, saying that if an employer institutes an arrangement that is racially discriminatory, that does not change just because the manager changes. The complaint was made against the organisation as a whole, not an individual manager.