“When the claimant became aware of the EOI for the Head of Africa role, she queried why the role had not been offered to her. Jonathan Hanna explained to us that there was no vacancy for the Africa job at the time the claimant was looking for roles and he did not want her to be without a role for a further 3 months, which was the period until the job became vacant. It is also apparent from the evidence that Becks Buckingham had reservations about the claimant’s ability to do the job. We find that this assessment is based on Becks Buckingham’s knowledge of the claimant and of the scope of the Head of Africa job, which is larger than Head of LATAC and involves line managing stuff, which the LATAC role does not. We do not find that Becks Buckingham’s view of the claimant is because of the 3C appraisal grade. It is more likely that the 3C appraisal grade is a reflection of her view of the claimant.”
“62. Section 13 Equality Act provides: “(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.” 63. The claimant must establish facts from which a tribunal could properly find that the treatment was because of her protected characteristics and the mere fact of a difference in status and a difference in treatment without, more, will not be sufficient for a tribunal to be able to conclude that the respondent had discriminated. 64. If the claimant shows facts from which it could be inferred that the respondent has treated her less favourably because of a protected characteristic, the burden of proof shifts to the respondent who must show that the treatment was in no sense on the grounds of the claimant’s protected characteristic.”
“73.1. she was not given her previous role of Head of LATAC on her return from surge; 73.2. she was not offered the Head of Africa role; 73.3. she was required to take the role of Head of LATAC (with focus on the Caribbean) and Wellness; 73.4. she was given a performance grade of 3C.”
“75. We find that in relation to the LATAC role, the scope of the role was insufficiently demanding for a full-time G7 position. We note that the claimant’s role was not originally a single role and only became a single role due to a reorganisation among geographical and thematic roles. During the course of April onwards, the reduction in the workload of the LATAC role was partly due to a change in prioritisation at ministerial level away from Latin America towards IndoPacific, Europe and Africa. As a result of these changes, the claimant’s former role no longer existed in the way that it had previously and the claimant was not able to return to her former job on return from surge. Jonathan Hanna did not follow a formal redeployment procedure on advice from HR although there is contradictory HR advice in the bundle. We accept Jonathan Hanna’s explanation for his decision as being based on the HR advice he received. 76. We do not find any discrimination in relation to the Head of Africa role. At the time the role was first vacant, the claimant was not free to take it up and it had been offered to one of her colleagues who was, at that time, without a role. When the claimant was looking for a role, the Head of Africa role was not vacant as it had been filled. By the time it would be vacant again, the claimant would have been without a role for a number of months and the respondent took the decision that it was not appropriate to keep her out of a role simply to give her the Head of Africa when it became vacant. We accept the respondent’s evidence that, in any event, it could not just be given to the claimant. By that time, there were several other G7s looking for roles because their department had been disbanded. We also note that Becks Buckingham had reservations about the claimant’s suitability for the role as she considered her skillset was better suited to an operational delivery role rather than strategy role. We note that the role was ultimately given to an Afro-Caribbean candidate. We accept the respondent’s explanation and find it non-discriminatory. 77. As regards being forced to take the LATAC and Wellness role, we accept the respondent’s explanation that she had been without a role for a number of weeks and the roles she was prepared to accept did not exist. The LATAC role was not big enough in itself but she was offered it together with another role in Wellness. We find nothing in this discriminatory.”
“78. We find that the claimant was disappointed with her appraisal grade but we do not agree that it signified an assessment of poor performance or that this grade impacted on her job roles. She had a misconception regarding the value of a 3C grade and incorrectly regarded it as a criticism of her performance. 79. We find that the claimant had an unrealistic view of her achievements and that the 3C grade reflected that she had met expectations against objectives. An adjustment had been made so that only the last part of the working year would be considered due to the absence of objectives and the claimant’s ill-health in the earlier part of the year. It cannot therefore be said that the medical issues (even if they were disability related) which affected the claimant in the earlier part of the year resulted in the 3C grading, as that period was not taken into account. We do not find that the claimant has shown facts from which we could infer that disability was the reason for any of the treatment she complains about. 80. We accept that the 3C grade was Jonathan Hanna’s honest assessment of the claimant’s performance. We do not find that the slightly higher grade given to CA is tainted by discrimination. This was also Jonathan Hanna’s honest assessment of a different employee with different objectives. From the claimant’s evidence, she would have been unhappy if she had received the same as her comparator (3B) as she thought she should have received a 2B. The claimant has not shown any facts from which we could conclude that the decision was discriminatory other than a small difference in grade and a difference in race. The BAME assurance exercise that was undertaken illustrated that BAME employees were not disadvantaged as a group in their grading within the GSD department. 81. We accept the respondent’s evidence that appraisal grades are not taken into account in job applications. We find that the 3C grading had no adverse impact on the claimant’s job opportunities or career development.”
“The claimant is highly intelligent and articulate and presented her case thoroughly and competently. We accept that she feels genuinely aggrieved at a number of issues, not all of which were issues before us. However, we are satisfied that none of the issues we considered were tainted by race or disability discrimination. For the reasons set out above the claimant’s claims fail and are dismissed.”
“Failed to direct itself as to subconscious discrimination (whether at paragraphs 62- 64, where it seeks to set out the law on direct discrimination, or at all).”
“I turn to the question of subconscious motivation. All human beings have preconceptions, beliefs, attitudes and prejudices on many subjects. It is part of our make-up. Moreover, we do not always recognise our own prejudices. Many people are unable, or unwilling, to admit event to themselves that actions of theirs may be racially motivated. An employer may genuinely believe that the reason why he rejected an applicant had nothing to do with the applicant’s race. After careful and thorough investigation of a claim members of an employment tribunal may decide that the proper inference to be drawn from the evidence is that, whether the employer realised it at the time or not, race was the reason why he acted as he did. It goes without saying that in order to justify such an inference the tribunal must first make findings of primary fact from which the inference may properly be drawn.”
“In referring to the Claimant’s line manager Jonathan Hanna’s “honest assessment of the Claimant’s performance” and Jonathan Hanna’s “honest assessment of a different employee with different objectives” (paragraph 80) the ET failed to recognise that an “honest assessment” can be negatively impacted by subconscious discrimination.”
“Credibility, in other words, is not necessarily the end of the road: a witness may be credible, honest and mistaken, and never more so than when his evidence concerns things of which he himself may not be conscious.” “Credibility, in other words, is not necessarily the end of the road: a witness may be credible, honest and mistaken, and never more so than when his evidence concerns things of which he himself may not be conscious.”
“A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”
“On a comparison of cases for the purposes of section 13… there must be no material difference between the circumstances relating to each case”
“(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision”
“The working assumption must be that an Employment Tribunal, which has made no clear error of law, has reached no impermissible conclusion of fact. This working assumption should not easily be displaced by hypercriticism of reasoning, or lack of reasoning, or of the way in which a decision is either structured or expressed. Any decision could usually have been expressed or structured differently, and perhaps a different court might have preferred a different structure or form of expression if it had had the task of writing the decision in the first place. It is, equally, always easy to say that an extra word or sentence would have improved a decision’s resilience against an ex post facto attack following detailed scrutiny of it in preparation for an appeal. But that does not in itself mean that the original decision is wrong. The question is not whether the decision is ideal, or even excellent, but only whether it is good enough, with reasoning which is sufficient, and free of demonstrable error. If it passes that test, the facts (including inferences of fact, and findings of secondary fact) should remain where the independent (and, in the case of the Employment Tribunals, specialist) tribunal of fact has left them.”
“49. [The ET] satisfied themselves that, on the evidence, conscious discrimination was excluded, but it seems to me that this was a case in which it was very much necessary to go on to consider and exclude subconscious or unconscious discrimination.”
“I do not say that it is necessary explicitly to refer to and make a finding on the issue of unconscious or subconscious discrimination in every case – it will depend on the circumstances – but I am satisfied that here, it was a misdirection not to do so.”
“Mr Roberts submitted that it is incumbent upon the Tribunal to consider unconscious motivation, I do not accept that the Geller case is authority for the proposition that a Tribunal must do this in every case, still less for the proposition that an Employment Tribunal has a duty expressly to deal with the possibility of unconscious motivation in its judgment whenever it is considering the reason why a respondent did a particular act.”
“However, there will be other cases in which it is not necessary, in light of the evidence, for a Tribunal specifically to go on to examine whether there was an unconscious motivation.”
“The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination”
“If, however, the tribunal accepts that the reason given for the treatment is genuine, then unless there is evidence to warrant a finding of unconscious discrimination, such that the tribunal is really finding that the alleged discriminator has concealed the true reason even from himself, there will be no basis to infer unlawful discrimination at all. Tribunals can in a proper case make a finding of unconscious discrimination, but it is a significant finding for a tribunal to hold that they can read someone’s mind better than the person himself, and they are not entitled to reach that conclusion merely by way of a hunch or speculation, but only where there is clear evidence to warrant it.”
“Direct discrimination claims must be decided in accordance with the evidence, not by making use, without requiring evidence, of a verbal formula such as “institutional discrimination” or “stereotyping” on the basis of assumed characteristics. There must be evidence from which the employment tribunal could properly infer that wrong assumptions were being made about that person’s characteristics and that those assumptions were operative in the detrimental treatment, such as a decision to dismiss.”
“The fragmented approach adopted by the tribunal in this case would inevitably have the effect of diminishing any eloquence that the cumulative effect of the primary facts might have on the issue of racial grounds”
“Following the appraisals of all staff, there was an assurance process to check that there was consistency across the board. When the claimant’s grade was being discussed, there was a suggestion that she should perhaps be given a 4 rating. Jonathan Hanna advocated on her behalf and persuaded the assurers that 3C was the right grade.”
“Due to the awareness raised by the Black Lives Matter and other movements about potential unfairness towards BAME staff, a second assurance exercise was undertaken with specific attention to whether BAME staff had suffered from discrimination. Among the GSD team, all BAME staff received Grade 3 or above and there was no evidence of any institutional discrimination on grounds of race in the appraisal scores.”
“Chris Camilla, Richard, Jon and I have discussed at length. We are content that all of the …marks are appropriate. No BAME staff in FPS received anything less than a 3C and the majority [who were then identified] scored higher than this.”