In this second post I want to give some thoughts on causation. As explained in the last post, direct discrimination occurs when a person is treated worse than another person because of a protected characteristic. It is not, therefore, enough that a black worker has been treated less favourably than a white worker by being refused a promotion that the white worker achieved. The reason for the treatment must be because of she is black (a protected characteristic) not because, for example, she has a lot less experience in the role that she applied for compared to the worker who was promoted.

That is not controversial but, in practice, things get much more difficult. I have a hunch that while unquestionably a good thing equality law has made spotting directly discriminatory conduct more difficult as it has led to the conduct becoming more disguised. In 1963 the Bristol Bus Boycott took place  (which certainly cast elements of the TGWU union movement in a regrettably discriminatory light). Speaking to the BBC the Chairman of the Bristol Bus Company explained why the company recruited white workers only “We have quite a number of female conductresses who are very proud of their jobs here and I am afraid if we did start engaging coloured people while we could still get white people, then a lot of these white females would be leaving their jobs for other work in the city.” The racial reason refusal to recruit is clear and is of the undisguised type seen in the case of James (see previous post).

The Bristol Bus boycott was a key reason for the passing of the Race Relations Act 1965 and outlawed direct race discrimination in “places of public resort”.  The 1965 Act was intended not so much to punish bigots but to deter discriminatory conduct. It is difficult to imagine such overt racism that caused the Bristol bus boycott being openly discussed, nowadays when this does occur it tends to be accidental. However, recent research shows that although it may be more disguised discrimination and prejudice remains rife. In that sense discrimination has no so much been deterred but disguised; no longer will a worker be told they are being dismissed because they are gay but will now still be dismissed because they are gay but told it is because of performance or misconduct concerns.

In the context of race discrimination claims Lord Justice Mummery noted over 20 years ago that direct discrimination claims are the “most difficult kind of case which Industrial Tribunals have to decide” and that

The legal and evidential difficulties are increased by the emotional content of the cases. Feelings run high. The complainant alleges that he has been unfairly or unlawfully treated in an important respect affecting his employment, his livelihood, his integrity as a person. The person against whom an accusation of discrimination is made feels that his acts and decisions have been misunderstood, that he has been unfairly, even falsely, accused of serious wrongdoing ( in Qureshi v Victoria University Of Manchester & Anor [1996] UKEAT 484_95_2305)

Which brings us again to causation. Sometimes the reason for the treatment and that it is because of a protected characteristic is obvious, for example where a candidate is told they have been refused a job because they are Irish or, as in James v Eastleigh Borough Council (discussed in the last post). In James it is clear the reason for his treatment was his sex.  This is rare, however. The central question in a direct discrimination case is whether the reason a person has been treated worse than a comparator is because of race? Although it is not necessary for a successful direct discrimination complaint in most cases there is not a great distance between saying a person directly discriminated against the person because of race and saying that the conduct of that person was racist.

It is here that the making a finding that the treatment was because of race is difficult because multiple alternative reasons for the treatment will be brought into play because, as LJ Mummery continued in Qureshi, “accusations may not only be hurtful to him as a person but may also be damaging to his employment, his prospects and his relationships with others.”

Sometimes there will be evidence that the purported reason an employer gives for the treatment of a person is a sham and the finding that the treatment was solely because of the protected characteristic is possible. However, much more often there are genuine issues with the complainant alleges they are being manipulated to justify treating them less favourably for a hidden reason.

Lord Nicholls in the House of Lords provided a helpful explanation of how this problem can be tackled in Swiggs and Others v. Nagarajan [1999] UKHL 36 when it is noted that

Decisions are frequently reached for more than one reason. Discrimination may be on racial grounds even though it is not the sole ground for the decision. A variety of phrases, with different shades of meaning, have been used to explain how the legislation applies in such cases: discrimination requires that racial grounds were a cause, the activating cause, a substantial and effective cause, a substantial reason, an important factor. No one phrase is obviously preferable to all others, although in the application of this legislation legalistic phrases, as well as subtle distinctions, are better avoided so far as possible. If racial grounds or protected acts had a significant influence on the outcome, discrimination is made out.

What this means is that simple correlation is not sufficient but an employment tribunal should find treatment is ‘because’ of a protected characteristic is it has evidence that the protected characteristic had a more than trivial part to play in the decision making process. So, to give a hypothetical example, if a tribunal were to find that in the minds of the decision maker a female worker who had committed gross misconduct would have been less likely to be dismissed had she been male then they should make a finding  her dismissal was directly discriminatory even though having committed gross misconduct and absent any discrimination issues a dismissal may have been a reasonable response in any case.