Law Society v. Bahl

Factual and Procedural Background

This appeal concerns a decision of the employment tribunal which found the appellants liable for certain acts of race and sex discrimination against the Appellee, a black Asian woman who held senior office within a professional organisation ("The Society"). The Appellee was elected Deputy Vice President and later Vice President of The Society and was involved in its reform programme. A formal complaint of persistent bullying and intimidation was lodged against her by a union branch on behalf of staff, leading to an inquiry chaired by an independent third party. The inquiry upheld complaints of bullying. Subsequently, The Society’s Council censured and suspended the Appellee, who resigned her offices.

The Appellee brought proceedings alleging unlawful race and sex discrimination arising from the handling of the bullying complaints and subsequent treatment. The employment tribunal upheld certain allegations of unconscious direct race and sex discrimination against two individual appellants and The Society. The appellants appealed, challenging the findings of discrimination and the tribunal’s extension of time for some complaints. The Appellee cross-appealed on several grounds but later withdrew most of these.

Legal Issues Presented

1. Whether the appellants unlawfully discriminated against the Appellee on grounds of race and sex contrary to the Race Relations Act 1976 and Sex Discrimination Act 1975 in the handling and investigation of bullying complaints under The Society's Dignity at Work Policy.
2. Whether the employment tribunal erred in law by extending time to hear certain complaints that were out of time.
3. Whether the tribunal properly distinguished between less favourable treatment and the reason why such treatment occurred, including the role of hypothetical comparators.
4. Whether the tribunal’s findings of unconscious discrimination were properly reasoned and supported by evidence.
5. Whether the tribunal erred in failing to separate race and sex discrimination claims for proper analysis.

Arguments of the Parties

Appellants' Arguments

• The employment tribunal made legal errors in finding any race or sex discrimination.
• The tribunal failed to properly identify less favourable treatment or construct hypothetical comparators.
• The tribunal confused detriment with less favourable treatment and unreasonableness.
• The tribunal failed to adequately distinguish race discrimination from sex discrimination and improperly lumped the claims together.
• The tribunal wrongly inferred discrimination from unreasonable conduct alone, contrary to established authority.
• The tribunal failed to give adequate reasoning explaining why non-discriminatory explanations for conduct were rejected.
• The tribunal improperly relied on irrelevant comparators and evidence, such as the treatment of a third party not involved in the proceedings.
• The tribunal erred in extending time for out-of-time complaints.

Appellee's Arguments

• The Appellee contended that the discrimination was conscious direct discrimination rather than unconscious.
• She argued that the tribunal should have found deliberate dishonesty on her part not justified by the evidence.
• The Appellee maintained that the tribunal’s findings on the investigation and handling of complaints were insufficient and flawed.
• However, at the hearing, her counsel realistically withdrew most grounds except the contention that the tribunal should have found conscious discrimination rather than unconscious.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court undertook a detailed examination of the employment tribunal’s approach to the discrimination claims. It acknowledged the tribunal’s thorough factual findings and careful witness assessments but identified multiple legal errors in the tribunal’s reasoning process.

The Court emphasized the fundamental legal principles governing direct race and sex discrimination claims, including the need to establish less favourable treatment on prohibited grounds and the proper approach to hypothetical comparators. It stressed that unreasonable or hostile treatment alone does not justify an inference of discrimination without independent supporting evidence, referencing the House of Lords decision in Glasgow City Council v Zafar.

The Court found that the tribunal failed to properly distinguish between race and sex discrimination claims, improperly lumping them together without separate evidential analysis. It also found that the tribunal did not adequately identify or analyse less favourable treatment distinct from detriment or unreasonable conduct, nor did it sufficiently consider non-discriminatory explanations for the appellants’ conduct.

In particular, the tribunal erred by relying on the treatment of a third party as a comparator for one appellant, which was legally irrelevant. The tribunal also wrongly inferred discrimination from the appellants’ unsatisfactory witness evidence and use of inappropriate language without sufficient evidential basis.

The Court held that the tribunal’s reasoning was inadequate in explaining why it rejected obvious non-discriminatory reasons—such as personal hostility or concern for organisational reform—as causes for the appellants’ conduct. The tribunal conflated hostility with discrimination and failed to appreciate that hostility alone, even if unreasonable, does not prove unlawful discrimination.

Regarding procedural fairness, the Court found that the tribunal made findings of discrimination on complaints that were not properly pleaded or pursued, thus lacking jurisdiction to do so.

On the issue of extending time for out-of-time complaints, the Court upheld the tribunal’s exercise of discretion as lawful and reasonable.

The Court also addressed the Appellee’s cross-appeal concerning whether discrimination was conscious or unconscious, concluding that the issue was moot given the dismissal of the discrimination findings and that the Tribunal lacked jurisdiction to entertain challenges to the tribunal’s reasoning absent an order.

Holding and Implications

The Court UPHELD THE APPEALS by the appellants, overturning the employment tribunal’s findings of unlawful race and sex discrimination against the individual appellants and, consequently, The Society.

The Court DISMISSED THE CROSS-APPEAL by the Appellee.

The Court also dismissed the challenge to the tribunal’s extension of time for certain complaints.

The direct effect of this decision is to remove the liability of the individual appellants and The Society for the alleged discriminatory acts. No remedies hearing has yet been held, and no new precedent was established beyond the clarification and application of existing discrimination law principles. The decision underscores the importance of rigorous evidential analysis and clear reasoning in discrimination claims, particularly distinguishing between hostility or unreasonableness and unlawful discrimination.