Not allowing an employee time off work to discuss racial discrimination was itself an act of racial discrimination when other employees were allowed time off for equivalent matters.
An employee may claim racial discrimination if he has been victimised by being treated less well than other employees because of race. A problem in determining such matters is defining the comparators against whom the treatment is compared.
The case concerned a black pick-up driver employed by TNT. He had complained to an employment tribunal about racial discrimination, for which hearing he was assisted by the Racial Equality Council. The hearing was fixed for 10 February 1997. The driver arranged to meet his adviser during his lunch break on 5 February, but the adviser was unable to keep the appointment. Another was made for the afternoon of 7 February. The driver asked for time off work which was refused. He was handed a letter saying that if he did take time off work, he would be subject to disciplinary action which could include summary dismissal. He did take time off. The company admitted it suffered no operational problems as a result.
It was the company practice to allow workers to take short leaves of absence for domestic reasons if they gave 24 hours’ notice. In practice, there was little control on such absences.
The hearing lasted two days. On his return on 12 February he was suspended for his refusal to obey an order not to leave work on 7 February. At a hearing on that matter, the employer dismissed him but with notice rather than summarily. He appealed to the tribunal.
The tribunal had no difficulty in finding that the employee had been treated less fairly. The issue then was whether this was due to racial reasons. The tribunal decided it was. The employer appealed.
At the appeal, the employer argued that a wrong comparison had been made. The tribunal should not have compared the treatment for workers who want time off for a domestic matter. Instead they should have compared with the treatment who want time off to discuss unfair dismissal cases other than for racial reasons. They would find that there was no discrimination if that comparitor were used.
The Court of Appeal did not accept this argument. The law does not define which comparator applies. Determining whether there was any discrimination depended on what was requested, not on the reason for the refusal. In this case, the employee had clearly been disciminated against for reasons connected with race.
TNT Express Worldwide (UK) Ltd v Brown. CA [2000]
[2000]