Morgan v DHL Services Ltd UKEAT/0246/19/BA

Appeal against the ET’s decision striking out the Claimant’s claims of direct race discrimination and race-related harassment. Appeal allowed.

The Claimant, who describes his race as black West Indian, is employed by the Respondent. There were two separate altercations, leading to the Claimant facing allegations of misconduct, and he brought claims of direct race discrimination and race-related harassment. At a preliminary hearing, the ET struck out the Claimant's claims on the basis that he had failed to show that there was "something more", other than the difference in treatment, to suggest that the reason for the difference was race (as required by Madarassy v Nomura International plc [2007] IRLR 246). The Claimant appealed on the grounds that (1) the ET had wrongly relied on his inability to explain the basis on which he alleged that the treatment complained of was because of race, and (2) when considering what might arguably provide the "something more", the ET wrongly looked for an express "link" to race and/or did not give sufficient consideration to the Claimant's allegations that evidence had been falsified or fabricated, and that he had been treated unfairly.

The EAT held that the ET had not engaged directly with the particular features of the Claimant's case that might have been said to give rise to an inference of discrimination or a shifting of the burden of proof. Accordingly, the judgment striking out the claims would be quashed, and the matter would be remitted to a fresh ET to consider whether to strike out some or all of the Claimant's claims.

Published: 25/01/2021 19:42