ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RICHARDS
LORD JUSTICE RIMER
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MR WILLIAM JOSLING (instructed by Beetenson &Gibbon) for the Respondent
Hearing date : 24th November 2011
Crown Copyright ©
Lord Justice Mummery:
"(1) This section applies where a complaint is presented under section 54 and the complaint is that the respondent-
(a) has committed an act of discrimination, on grounds of race or ethnic or national origins, which is unlawful by virtue of any provision referred to in section 1(1B) (a),(e) or (f), or Part IV in its application to those provisions, or
(b) has committed an act of harassment.
(2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent-
(a) has committed such an act of discrimination or harassment against the complainant, or
(b) is by virtue of section 32 or 33 to be treated as having committed such an act of discrimination or harassment against the complainant,
the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed that act."
"38. Having looked at the evidence the Tribunal initially concluded that there appeared to be evidence supporting the claim that Mr Bouzir has been discriminated against because of his Muslim religion. However when the finding was announced Mr Wood for the Respondent pointed out that Mr Bouzir had only claimed race discrimination. An examination of the Claimants' ET1 paragraph 5 showed that he ticked only the box relating to race. In the concluding part, Paragraph 15 of Section 5.2 of the ET1 he stated:-
"I believe I have been unlawfully directly discriminated against contrary to sections 1(1)(a) of the Race Relations Act 1976."
He submitted a questionnaire on race discrimination only. In his witness statement he stated:-
"I believe that the reason why I was not offered the job was because of my race."
39. In those circumstances we agreed with the Respondent that the Claimant had not submitted a claim for religious discrimination but had confined his claim to race discrimination.
40. The Tribunal considered whether Mr Bouzir had established that there was race discrimination. The Claimant is an Algerian citizen. Although the Respondent does not employ another Algerian, there was no evidence to show that the Claimant's race was the reason why he was not offered the position.
41. The Respondent does have a policy of employing staff of many different nationalities and there was no evidence to show either directly or by drawing inferences that the reason for the Claimant not being offered a job was his Algerian citizenship. While the Respondent did not behave particularly well in respect of its failure to communicate with the Claimant after the interview or to notify him not to attend the induction, and despite the failure to reply to the questionnaire, there still does not seem to be sufficient evidence to show that this was related to the Claimant's race rather than to some other reason."
"36. ….since the Respondent was so evasive in replying to the questionnaire and the request for documentation, since they relied on the reasons in the letter of 9 July which they considered to be common to both Claimants and since they sought to claim that Mrs Bouzir did not have sufficient experience and because of the failure of the Respondent to produce any documentation relating to successful candidates, that the Respondent is either concealing or not admitting the true reason. The Tribunal can only conclude that, in the case of Mrs Bouzir, the reason was her Muslim religion which was clearly evinced by her attendance at the interview wearing a headscarf."
Discussion and conclusions
Lord Justice Richards:
Lord Justice Rimer: