Untainted by race

Although employers will sometimes be able to provide an explanation in race discrimination claims that is “completely untainted” by considerations of race, the Court of Appeal held in Iwuchukwu v City Hospitals Sunderland NHS Foundation Trust that the employer had not provided a sufficient explanation to refute the allegation of discrimination.

Basic facts

Mr Iwuchukwu, a consultant surgeon specialising in breast reconstruction at the Trust, was the only consultant of black African ethnic origin at Sunderland Royal Hospital.

After a number of concerns over several years were raised about his work, including an incident in which a patient was set on fire, the Trust commissioned a formal investigation under the Maintaining High Professional Standards in a Modern NHS (MHPS) which recommended that Mr Iwuchukwu should be restricted to non-clinical practice. The Trust also referred him to the General Medical Council which said he could only return to work as a level 1 trainee doctor. This, however, required a level of supervision that the Trust could not provide.

Mr Iwuchukwu then lodged a grievance alleging race discrimination, but the Trust refused to hear it on the basis that it was outside the one-month time limit. A few months later he lodged another grievance on the same grounds, which was investigated. Of the four options that were suggested by the investigating officer for going forward, the Trust chose the option of initiating a capability panel.

Mr Iwuchukwu was subsequently dismissed on the ground of capability. He brought claims of direct race discrimination and victimisation, among other things.

Tribunal and EAT decisions

The tribunal held that the Trust’s failure to investigate his grievances constituted direct race discrimination, not least because the first one was not out of time when it was lodged. Rather, it held that it was a blatant attempt to close down the grievance without having to deal with it. It also found that a hypothetical comparator of a different race would have had their grievance investigated. As a result, Mr Iwuchukwu had been treated less favourably. 

Overturning that decision, the EAT held that the Trust had provided a complete (albeit perhaps unsatisfactory) explanation for its behaviour which was unrelated to Mr Iwuchukwu’s race. That is, that the grievances were simply a way to derail the capability procedure. The tribunal had also identified the wrong comparator as they needed to have the additional characteristic that they were attempting to derail the capability process.

Decision of Court of Appeal

Overturning the decision of the EAT, the Court of Appeal held that the Trust’s explanation could not be sustained.  In particular, no decision had been taken to proceed with the capability process at the time the first grievance was lodged. 

Moreover, the fact that the Trust saw the grievance as a method of attempting to further delay the capability proceedings was not an entirely neutral factor. It was not therefore possible to conclude that the Trust’s approach was “completely untainted by considerations of race”. Although there might be cases where the employer could provide an explanation that was “completely untainted”, that was not what the tribunal had found in this case.

In light of the findings of the tribunal there was no need for the hypothetical comparator to have the characteristic that they were also attempting to derail the capability process.

The Court of Appeal therefore allowed the appeal and restored the order made by the tribunal.