In giving workers employment advice a common complaint is that they have been discriminated against because of a protected characteristic. They will rarely put it that legalese way but they will recount their concern that they were not promoted because of their sex, not given a development opportunity because they are disabled, or not dismissed because of their race, etc.

A good example of this tendency can be seen in the ET case of Mohamed v Acis Group (2021). Mr Mohamed was dismissed and he believed that dismissal was discriminatory. In his ground of claim he explained “I also strongly believe that my race had something to do with it and if it was one of my white colleagues the outcome would have been different.” Because that was all the claimant could bring to support his claim it was struck out.

Mr Mohamed’s gut instinct upon which he based his claim is a common and understandable one. An employee is faced with a detriment ( a dismissal, a warning, a demotion etc) and they note that this has affected them only, and no-one who does not share the protected characteristic (whatever the PC may be) has been treated in the same way. That disparity in treatment is entirely reasonable grounds for a concern of direct discrimination. But is is enough to justify starting a claim?

I have never tabulated the data on this but my guesstimate is that for maybe 60-70% people of people who are considering making an employment tribunal claim and who have not had any previous advice put forward as their main basis for why they have been discriminated against the fact of different treatment in the same way that the claimant in Mohamed v Acis Group did.

It is a surprise to them that if that is the argument then their legal complaint is on shaky ground (subject to new evidence that may come out in disclosure). I have set the burden of proof on this website before (the Efobi decision was indeed appealed to the Supreme Court and dismissed) but it is worth repeating the salient issue.

In its decision in Madarassy v Nomura International Plc [2007] EWCA Civ 33 [at 56] the Court of Appeal made clear that, contrary to the prime arguments of that 60-70%, that (emphasis added) the “bare facts of a difference in status and a difference in treatment only indicate a possibility for 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.“

What this means is that unless that 60-70% can show that in addition to the different treatment there is something more to show that the reason for the treatment is the protected characteristic is then they will lose the case, if they can show this then they are still in the fight and may succeed at the tribunal.

The category of what is “something more” is wide and varied. Sometimes this may be obvious such as a manager who dismissed an employee having previously made racist remarks about the claimant. Sometimes it may be an evasive answer to allegations of discrimination (as in Virdee v EEC Quarries Ltd [1978] IRLR 295) or a senior official emailing staff to acknowledge there was disparity in the treatment of certain particular characteristics (as in Home Office v Kuranchie [2017] UKEAT 0202_16_1901).

As it happens, although maybe 60-70% of unrepresented persons may be framing their case in a way that is not positive it does not mean that they do not have a good claim. As Madarassy recognised a difference in treatment does “indicate a possibility for discrimination.”

Claimants advancing a case relying on just a difference in treatment will often come unstuck at Preliminary Hearing as the lack of a ‘something more’ becomes apparent.

So, if you are contemplating or advising on a discrimination claim then care to consider whether there is a ‘something more’ that can be relied upon will be valuable time spent. It may be that a case of discrimination is not proceeded with as, like the claimant in Mohamed v Aris Group there was nothing to say to prove discrimination beyond a gut instinct; or it may be that by identifying the evidence from the outset litigation is commenced on the front foot.