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Issue 108 (February 2006)

Contents

In the news
Still no justice for NUJ
Who's who
We can work it out
The panel beaters
Cabinet duties
A risky business
God only knows  

The panel beaters

It is directly discriminatory under the Race Relations Act 1976 to treat someone less favourably than another person on racial grounds. This is known as direct discrimination.

In Bvunzai v Glasgow City Council, the Court of Session (the Scottish equivalent of the Court of Appeal) has said that tribunals must consider not just the conduct of the employer, but also whether they can provide an explanation for their behaviour when considering allegations of direct discrimination.

Mr Bvunzai's union, Unison, instructed Thompsons to act on his behalf.

Why did Mr Bvunzai complain?

Mr Bvunzai had worked for Glasgow City Council since 1977. In August 2000 he applied for a senior social work management job, for which five people were interviewed. He was the only black candidate. The person appointed was a white woman, Ms McGuire.
Mr Bvunzai claimed direct discrimination on the basis that:

What did the tribunals decide?

The tribunal decided that the interview panel's assessment of Mr Bvunzai was influenced by racial factors, as the members could not credibly explain why his score was so much lower than Ms McGuire's. This was compounded by breaches of the council's own code of practice.

The employment appeal tribunal disagreed, however, saying that the tribunal's decision was "perverse". Mr Bvunzai appealed to the Court of Session.

What did the court of session decide?

Relying on Nagarajan v London Regional Transport (1999, ICR 877), the court said that, without any direct evidence of racial bias, the tribunal could only infer how the panel had come to its decision "from the surrounding circumstances".

In this case "the circumstances were...such that it was open to the employment tribunal to find that the appellant's non-selection was influenced by racial factors, even if the conduct did not point overtly to the decision having been made on racial grounds... It was thus not the respondent's conduct alone which rendered that finding open to the tribunal, but that conduct combined with the respondent's inability to explain it."

It said that the test for "perversity" was a high one that, ultimately, was "a matter for the tribunal's conscientious judgment." The EAT had therefore erred in law in interfering with their decision.

The Court of Session allowed the appeal and remitted the case to the original employment tribunal to reassess the compensation.