April 23, 2008

Did they or did they not... and 'tick box' exercises

No automatic adverse inference for failing to complete discrimination questionnaires

In D’Silva v NATFHE & Others, Mr D’Silva, a university lecturer and member of the National Association of Teachers in Further and Higher Education (NATFHE) union, claimed the union had discriminated against him on grounds of race in the way it handled his applications for legal assistance in bringing discrimination claims against Manchester Metropolitan University. His complaints were dismissed by the Employment Tribunal. He appealed to the Employment Appeal Tribunal (EAT). His appeal included a claim that the Tribunal had refused to draw adverse inferences of discrimination from the alleged failure of the union to fully answer a Race Discrimination Act 1976 questionnaire.

The EAT dismissed Mr D’Silva’s appeal. It held that failure to answer a questionnaire, or indeed to provide other information or documents, does not automatically raise an inference of discrimination. While these are matters from which an inference can be drawn, it held that the drawing of inferences from such failures is not a "tick-box exercise". It is necessary in each case to consider whether, on the facts, the failure in question is capable of constituting evidence supporting the inference that the respondent acted discriminatorily in the manner alleged and, if so, whether, in the light of any explanation supplied, it does in fact justify that inference.

The EAT suggested that if a claimant pursues this point in circumstances where it is obvious that the failings have no bearing on the question of discrimination, he or she runs the risk of being penalised.

From: http://www.mondaq.com and: http://www.personneltoday.com

4 comments:

Anonymous said...

"The EAT suggested that if a claimant pursues this point in circumstances where it is obvious that the failings have no bearing on the question of discrimination, he or she runs the risk of being penalised."

My solicitor said this too - an everything and the kitchen sink case buries the specifics of the complainant amongst unrelated and tangential matters. It also carries the risk of seeming vexatious and malicious - no matter how valid those other matters are. Keep your case simple and put the energy into campaigning on the broader issues.

Anonymous said...

It would be good to have the names of solicitors who have given useful advice in fighting cases of workplace bullying... and strategies for presenting cases

... as some solicitors are useless....

Aphra Behn

Stuart said...

There was a solicitor rating site http://www.ratemysolicitor.com/ , but unfortunately it seems that one or more of the people running it was pursuing a vindictive and personal campaign (with some extremely unpleasant court proceedings), and I think the current content reflects only this single-issue campaign.

For a while it did have independent reviews and looked like it might match www.ratemyteachers.com or http://www.irishhealth.com/hospital/index.html which are genuinely useful resources.

Anonymous said...

D'Silva and his "CEM" colleagues do not merit the time of day from anyone who is interested in fighting bullying. Not every EAT is well founded, and in this case the employees have exceeded all boundaries, have behaved in a bullying way towards unrelated third parties, have behaved in a manner that some feel is racist, and have (as anonymous one suggested) clouded not only their own original cases, but have made it more difficult for others. One CEM supporter had made more than £100,000 from vexatious proceedings after multiple fake job applications, and has been banned from taking further proceedings. This is not helpful to others who have legitimate problems.