In order to decide claims of race discrimination, tribunals have to focus on whether the claimant’s race was a factor in the way they were treated. In Lasila v Apcoa Parking (UK) Ltd, the Employment Appeal Tribunal held that Mr Lasila had not been discriminated against because of race in the way that he was treated when the company car he was driving developed a problem, compared with the way the driver of another company car was treated.
Basic facts
In the course of his work as a mobile civil enforcement officer, Mr Lasila drove a company vehicle. After leaving his job, he lodged a number of claims including race discrimination.
Sub-paragraph 2(c) of Mr Lasila’s claim asserted that while he was driving a company car, it started to emit smoke. He considered that the car was unsafe to drive but was told to return the vehicle back to base and was investigated. By contrast, a "Caucasian colleague” whose vehicle got a flat tyre, was sent a recovery vehicle to help him and no investigation was carried out.
Paragraph 2(d) of his claim stated that although the company vehicle was “constantly being driven by numerous members of staff”, only three members of staff were investigated.
The company admitted paragraph 2(c) but denied 2(d), stating that all the drivers were investigated and no action was taken against anyone.
Tribunal decision
Based on a document signed by Mr Lasila, which made no reference to smoke but to the vehicle making a terrible sound, the tribunal found that the vehicle had developed a clutch problem because of the way in which it had been driven.
The company started an investigation in which Mr Lasila and another black driver (who used the vehicle the most) were interviewed. Although two other white employees had driven it, their usage was limited. In relation to the other incident, the tribunal noted that the reason for towing the vehicle back was because all four tyres had been slashed.
The tribunal rejected Mr Lasila’s claims that the decision to investigate him over the clutch misuse was based on his skin colour or racial origin. Instead, the investigation was a reasonable step, as driver misuse was something that would have occurred over a period of time and the main drivers were the ones most likely to have caused the damage. The driver of the vehicle with four slashed tyres could not have driven it back to the depot, whereas a car with a noisy clutch could be driven a short distance to be repaired.
Mr Lasila appealed on the grounds that there was no evidence that the other vehicle had four slashed tyres. As such, the factual basis on which the tribunal found the reason for the difference in treatment was perverse and the finding that there was no discrimination, could not stand.
He also argued that the company had significantly changed the basis of their case from admitting that the other vehicle had one flat tyre, to one which had four slashed tyres and that required an amendment in order to enable him to respond.
EAT decision
Dismissing the appeal on both grounds, the EAT held that the issue of the four slashed tyres had been raised in the company’s witness evidence and that Mr Lasila had been able to cross examine the witnesses. Nor was it necessary for the company to re-plead its case, given that the issue was whether the car could be driven or not.
The EAT rejected the company’s argument that Mr Lasila had failed to establish that the car was emitting smoke. It said the real issue was not whether the car was defective because it was smoking or had a faulty clutch, but whether Mr Lasila’s race was a factor in the difference in treatment as compared with the driver of the car with a flat tyre or tyres. As there was evidence that the other car could not be driven the tribunal was entitled to rely on it to make its findings that there was no discrimination.
Comment
The case is a reminder of the importance of identifying the less favourable treatment in a claim of race discrimination. Even though race does not have to be the sole reason, it must be the operative reason for any difference in treatment.