Unfair treatment is not discriminatory

Effa v Alexandra Healthcare NHS Trust, IRLB 636, Court of Appeal

• Effa, a Nigerian in his late 50s, was appointed as a locum senior house
officer and was summarily dismissed after complaints were made about his
competence. The procedures for terminating a locum’s appointment were not
complied with and Effa brought a successful race discrimination claim.

The employment tribunal found Effa was perceived as "an old
bumbler" and the trust’s perception of him was based on prejudice against
locums of his age and the fact that most locums were from ethnic minorities. A
"causative racial element" was inferred by the tribunal which held
that a white locum of comparable age would not have been dismissed.

The trust successfully appealed to the EAT which held that there was no
factual basis for the tribunal’s assumption that a hypothetical white
comparator would have been treated differently.

Effa appealed to the Court of Appeal, which held that the tribunal had erred
in upholding the race claim, as discrimination could not be inferred from the
facts.

While Effa’s treatment was unfair it was not discriminatory just because
Effa came from an ethnic minority.

Right to representation cannot be denied

Bache v Essex County Council, IDS Brief 658, Court of Appeal

• Bache was represented in her tribunal claim by her friend L. He was not particularly
competent and his examination of witnesses was unfocused and protracted.

The tribunal members would not allow L to continue as Bache’s representative
although he was permitted to assist her during the hearing.

Bache’s claim was unsuccessful and she appealed to the EAT on the basis that
she had denied her right to representation. The EAT dismissed the appeal and
Bache appealed to the Court of Appeal.

A distinction was made between the tribunal controlling the conduct of the
proceedings and depriving a party of their unqualified statutory right to have
a representative of their choice. The tribunal could not remove an incompetent
solicitor from acting and the Court of Appeal held that a nominated lay
representative could not be treated differently. But L’s removal had not
affected the outcome of Bache’s case and the appeal was dismissed.

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