Copyright Moore Barlow LLP (Moore Blatch and Barlow Robbins merged May 2020)

Discrimination should not be inferred simply because the employer’s conduct has been unreasonable

The Employment Appeal Tribunal (EAT) has recently handed down their judgment in Kent Police v Bowler. They confirmed that an Employment Tribunal (ET) should not infer discrimination simply because the employer’s conduct has been unreasonable, there must also be discriminatory behaviour.

In this case the ET made numerous findings of victimisation and discrimination against Kent Police. Kent Police appealed and argued that the ET had not made sufficient findings of facts to give rise to an inference of discrimination and victimisation.

The EAT allowed part of the appeal in this case. They reiterated that the ET should not readily infer discrimination merely from unreasonable conduct where there is no evidence of other discriminatory behaviour. The EAT held that the incompetent handling of the grievance process and the lackadaisical attitude of the investigator were unreasonable. However, the finding of this unreasonable conduct was not sufficient to allow the ET to infer that the investigator held a stereotypical view of the officer and treated him badly because of his race.

We advise that, although this case illustrates the difficulty for an employee in successfully proving discrimination cases, employers should ensure that they always keep clear documentary evidence of why a decision was made. This advice is especially important when an employee is treated differently, arguably in an unfavourable manner if there is the potential for a discrimination complaint.


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