Racial Discrimination Dismissal Case
with Costs >£15,000 Goes Back to Start
It’s fairly well understood that an employer can dismiss within the first two years employment without being exposed to risk of having to defend an expensive unfair dismissal claim. That is, unless the dismissal can possibly be attributed to things like racial discrimination – such as was the case when Barclays Bank plc decided to dismiss Mr C W Kibirango after 11 weeks employment.
In the case of Kibirango v Barclays Bank & ors, which has been rather convoluted in its progress to date (and as at today [25 November 2015 – three years after the dismissal], there has been little or no progress, let alone resolution to the case, beyond an observation from an employment tribunal that the case has “little reasonable prospect of success”), a claim was lodged for racial discrimination following a dismissal on 2 October 2012 – around 11 weeks after the Claimant commenced his employment.
A decision & reasons on the merits of the case from an employment tribunal were issued in February 2014 (not a quick resolution, but certainly not excessively long after the dismissal), but what followed was a series of considerations of the case at the Employment Appeal Tribunal (EAT), including a reference back to the Employment Tribunal to explain its reasoning beyond that it issued in February 2014.
In a judgment issued today, it was found that the Employment Tribunal that heard the case did not actually articulate its reasons adequately (even when subsequently asked to by the EAT), issues that were focused solely on why the evidence of some witnesses were preferred over others in the Tribunal’s reasons.
Today’s 35 page judgment from the Employment Appeal Tribunal can be summarised by its findings that the timing – before or after the notice to summarily dismiss – of a few comments, comments that it appears were not entirely disputed as being made (and may or may have been directly related to the decision to dismiss, but in themselves don’t obviously infer any racial discrimination, either way), could have influenced the outcome of the what was (and still is) a case judged to have little prospect of success.
The consequence of this observation – that the tribunal failed in its reasons to explain sufficiently why it preferred the evidence of some witness evidence over others – is to set aside an award of costs in favour of the Respondents for £15,000, and instead award the Claimant the fees he paid to bring the appeal to the EAT, £1,200 – Barclays & others having an award (as part of the February 2014 judgment) to them to cover £15,000 in costs for defending the original tribunal claim set aside.
And with today’s judgment, the case is sent back to the start, to be heard by a new employment tribunal, from the beginning.
In dealing with a dismissal, there is nothing an employer can practically do to avoid the risk any subsequent employment tribunal judgment will satisfy the legal requirements it needs to [these are known as Meek in employment law circles – it’s for an employment tribunal to give its reasons, in its own terms], but the events in this case do demonstrate a dismissal, even after 11 weeks employment, can never be treated in a laissez-faire manner, but every little detail should be documented, and done as soon as possible after the event – or even better, during the event, as some of our clients will typically do when they follow a printed script to handle a dismissal.