In my last dark law post, I discussed the scepticism of tribunals regarding discrimination claims about acts which do not appear to be discriminatory on their face. It might be thought that the situation would have changed since it has become possible for the burden of proof to be reversed but, in fact, this has not really happened at all, for largely the same reasons as those that were outlined in the earlier post.

A reluctance to apply the reverse burden of proof strictly is understandable, particularly in cases where there is no jurisdiction to consider unfair dismissal. An employer who has dismissed an employee with less than a year of service for an entirely arbitrary reason is unlikely to want to go into detail about the thought processes involved, but it would be entirely unjust to make a finding of discrimination in these circumstances. In practice, this means that tribunals will often accept dubious reasons, or find entirely unpleaded reasons of their own, for dismissal in order to ensure that the burden is discharged where it is fair to do so. This tendency is only increased by the very unfortunate tactic of pleading discrimination where a complaint is really one of unfair dismissal, as a way of trying to evade the lack of jurisdiction.

However, employers should still remain wary of cases like these. They are rarely won by the claimants but are sometimes lost by the respondents who are afraid of scare stories about tribunals who find in favour of employees for obscure reasons, and therefore decide that it is wise to lie about embarrassing but non-discriminatory motives. Such scare stories are completely unfounded but tribunals have been known to allow the reverse burden of proof to operate when told such lies, even if there is no direct evidence of any discrimination. This seems harsh but actually makes a great deal of sense. If a person is lying about the basis for a decision, it is clearly possible that discrimination is part of the reason and, if this did not result in an adverse finding, the practice of lying to cover up unlawful acts will no doubt be encouraged. Parties without legal experience tend to underestimate the ability of tribunals to work out whether a witness is telling the truth and the advice to them is simple. Tell the truth, however silly it will make you feel and, if there has not been any discrimination, you will win. Lie and you will lose.

careful to emphasise that the case does not raise any issue of legal principle but it is difficult to see how it can avoid doing so, in light of the conclusion that a deliberate and cynical lie amounts to unreasonable conduct necessitating an award of costs. On its face, this appears uncontroversial, but the problem is that, in most cases, one or other of the parties is lying and most lies are both deliberate and cynical. It would seem to follow that any claimant who is alleging an act of discrimination or, indeed, any employer who is denying one, is at serious risk of such an award.

Suffice to say, this is highly unsatisfactory in light of other dicta that costs in the Employment Tribunal should be exceptional. There is a real danger that people with genuine claims will be deterred at least as much as those with fraudulent ones. Even worse, authorities that appear to be widely applicable but which purport to establish no general principle are prone to result in inconsistency and uncertainty such that all parties could legitimately fear an award of costs against them without any confidence of recovering their own costs if they are successful, which is worse thancareful to emphasise that the case does not raise any issue of legal principle but it is difficult to see how it can avoid doing so, in light of the conclusion that a deliberate and cynical lie amounts to unreasonable conduct necessitating an award of costs. On its face, this appears uncontroversial, but the problem is that, in most cases, one or other of the parties is lying and most lies are both deliberate and cynical. It would seem to follow that any claimant who is alleging an act of discrimination or, indeed, any employer who is denying one, is at serious risk of such an award.

Suffice to say, this is highly unsatisfactory in light of other dicta that costs in the Employment Tribunal should be exceptional. There is a real danger that people with genuine claims will be deterred at least as much as those with fraudulent ones. Even worse, authorities that appear to be widely applicable but which purport to establish no general principle are prone to result in inconsistency and uncertainty such that all parties could legitimately fear an award of costs against them without any confidence of recovering their own costs if they are successful, which is worse thancareful to emphasise that the case does not raise any issue of legal principle but it is difficult to see how it can avoid doing so, in light of the conclusion that a deliberate and cynical lie amounts to unreasonable conduct necessitating an award of costs. On its face, this appears uncontroversial, but the problem is that, in most cases, one or other of the parties is lying and most lies are both deliberate and cynical. It would seem to follow that any claimant who is alleging an act of discrimination or, indeed, any employer who is denying one, is at serious risk of such an award.

Suffice to say, this is highly unsatisfactory in light of other dicta that costs in the Employment Tribunal should be exceptional. There is a real danger that people with genuine claims will be deterred at least as much as those with fraudulent ones. Even worse, authorities that appear to be widely applicable but which purport to establish no general principle are prone to result in inconsistency and uncertainty such that all parties could legitimately fear an award of costs against them without any confidence of recovering their own costs if they are successful, which is worse than

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m is that, in Bleuse, it is far from clear that the case could not have been brought in Austria and so there is no obvious reason why an English tribunal had to accept jurisdiction in order to provide an effective remedy. The argument that this is the case in Duncombe is much more compelling but this has the result that the correctness of the wider ratio in Bleuse is not considered. Perhaps the strongest conclusion to be drawn from it all is that there is a difficulty with Lawson v Serco, which really ought to give jurisdiction in a case of unfair dismissal wher m is that, in Bleuse, it is far from clear that the case could not have been brought in Austria and so there is no obvious reason why an English tribunal had to accept jurisdiction in order to provide an effective remedy. The argument that this is the case in Duncombe is much more compelling but this has the result that the correctness of the wider ratio in Bleuse is not considered. Perhaps the strongest conclusion to be drawn from it all is that there is a difficulty with Lawson v Serco, which really ought to give jurisdiction in a case of unfair dismissal wherm is that, in Bleuse, it is far from clear that the case could not have been brought in Austria and so there is no obvious reason why an English tribunal had to accept jurisdiction in order to provide an effective remedy. The argument that this is the case in Duncombe is much more compelling but this has the result that the correctness of the wider ratio in Bleuse is not considered. Perhaps the strongest conclusion to be drawn from it all is that there is a difficulty with Lawson v Serco, which really ought to give jurisdiction in a case of unfair dismissal wherm is that, in Bleuse, it is far from clear that the case could not have been brought in Austria and so there is no obvious reason why an English tribunal had to accept jurisdiction in order to provide an effective remedy. The argument that this is the case in Duncombe is much more compelling but this has the result that the correctness of the wider ratio in Bleuse is not considered. Perhaps the strongest conclusion to be drawn from it all is that there is a difficulty with Lawson v Serco, which really ought to give jurisdiction in a case of unfair dismissal wherm is that, in Bleuse, it is far from clear that the case could not have been brought in Austria and so there is no obvious reason why an English tribunal had to accept jurisdiction in order to provide an effective remedy. The argument that this is the case in Duncombe is much more compelling but this has the result that the correctness of the wider ratio in Bleuse is not considered. Perhaps the strongest conclusion to be drawn from it all is that there is a difficulty with Lawson v Serco, which really ought to give jurisdiction in a case of unfair dismissal wherm is that, in Bleuse, it is far from clear that the case could not have been brought in Austria and so there is no obvious reason why an English tribunal had to accept jurisdiction in order to provide an effective remedy. The argument that this is the case in Duncombe is much more compelling but this has the result that the correctness of the wider ratio in Bleuse is not considered. Perhaps the strongest conclusion to be drawn from it all is that there is a difficulty with Lawson v Serco, which really ought to give jurisdiction in a case of unfair dismissal wher

The Court of Appeal dealt with some complicated issues of European law in Duncombe v Department for Children, Schools and Families. It was not a good week for the Department, which also intervened unsuccessfully in JFS. Mr. Duncombe was employed to teach at a European School in Germany but was dismissed when his fixed-term contract came to an end after nine years, contrary to the Fixed-Term Workers Directive. He did not bring a claim in Germany, because he knew that the Department would rely upon state immunity to defeat the claim, and so he had no choice but to bring his claim in the UK.

He was allowed to pursue wrongful dismissal by the Employment Appeal Tribunal, following the earlier decision by President Elias in Bleuse v MBT Transport. It was held that a claim under the Working Time Directive, concerning work carried out in Austria, could be pursued in an Employment Tribunal because the Directive is directly effective and, otherwise, there would be no effective remedy for a breach by a UK-based employer. In the appeal, Lord Justice Mummery notes that Bleuse is not necessary for the wrongful dismissal claim. The contract was agreed to be subject to the jurisdiction of the English courts and, although the conversion of a contract from a fixed-term one to an permanent one depends on the operation of European law, it operates upon the contract itself and so no jurisdictional issue will arise.

However, the unfair dismissal claim is a different matter. Jurisdiction is governed by the case of Lawson v Serco which depends, subject to certain very limited exceptions, on the employment being based in the UK. None of the exceptions apply to this particular case. While the Fixed-Term Workers Directive is found by the Court of Appeal to be directly effective, there is not a legally-binding right in European law to be protected against unfair dismissal itself. Nevertheless, Lord Justice Mummery concludes that it is necessary to extend Lawson v Serco so that there is an effective remedy for a breach of the Directive.

It is difficult to argue with this result on the facts but the decision can hardly be said to clarify the law. The problem is that, in Bleuse, it is far from clear that the case could not have been brought in Austria and so there is no obvious reason why an English tribunal had to accept jurisdiction in order to provide an effective remedy. The argument that this is the case in Duncombe is much more compelling but this has the result that the correctness of the wider ratio in Bleuse is not considered. Perhaps the strongest conclusion to be drawn from it all is that there is a difficulty with Lawson v Serco, which really ought to give jurisdiction in a case of unfair dismissal where the UK government is the employer and can rely upon state immunity. Doubtless the Department will appeal and this will allow the point to be explored.

The judgment of the Supreme Court in this case has been all over the newspapers. I went to see it being handed down yesterday and I was pleased both that the carpet looks much better in real life than in photographs and with the decision itself, in which thirty years of direct discrimination law narrowly avoided being overturned, by a wafer-thin majority of 5 to 4. As noted in this post, it was the authority of James v Eastleigh Borough Council that was at stake and, although at least one of them purported to follow it, the Justices in the minority effectively suggested that the principle had been watered down by Nagarajan. The position of the majority is the orthodox one (in a non-religious sense) and is supported by recent decisions of the Employment Appeal Tribunal, including this one. None of them were actually cited in the speeches, which is surprising because I cannot believe they were not cited in submissions.

A less settled area of law, which gave rise to some ingenious arguments by Lord Pannick, on behalf of the school, concerns the case of Mandla v Lee, which provides the legal definition of an ethnic group. The Court of Appeal had suggested that an ethnic group had to be defined on biological grounds alone and, therefore, a convert to Sikhism (or Judaism) could not claim race discrimination. The House of Lords overturned this decision, stating that there can be a cultural element to an ethnic group. The test is uncontroversially an objective one and, as Lord Pannick pointed out, the effect is that M, the boy in the case, is Jewish like his comparator, who would have been given a place. As Orthodox Jews were not found to constitute a separate ethnic group, it was suggested that there was no race discrimination.

This approach initially appears to be compelling and is not an easy one to rebut but the Justices found a number of problems with it. The first issue is identified by Lord Kerr and Baroness Hale and concerns the fact that, although M and his mother are both Jewish, according to the Mandla test, they are not exclusively Jewish and are also part Italian. The reason for the less favourable treatment was the part that is not Jewish. This is persuasive because, otherwise, people of mixed race would not be protected.

However, it is Lord Mance, in the most detailed judgment, who really gets to grips with the issue. He points out that the intention of Mandla was to widen the definition of an ethnic group, rather than to narrow it, which means that biology is still part of the test, as well as culture. Although the boy and his comparator are members of the same ethnic group culturally, they are members of different groups defined in biological terms. Furthermore, following the case of English v Thomas Sanderson, people can be discriminated against on the grounds of their perceived membership of an ethnic group, even if the perception is objectively incorrect. The school cannot rely on Mandla to say that M is Jewish so there is no discrimination if the reason for treating him less favourably is that they do not accept him as Jewish.

An employment tribunal does not have the jurisdiction to hear a claim if it has been subject to an agreement which complies with section 203 of the Employment Rights Act, or with a similar provision in another statute. It does have the power to determine whether an agreement properly complies with the terms of the section but it had not been clear if it could rule on the question of whether an agreement is void for some other reason, such as misrepresentation, or whether this would have to be decided by a court. In Industrious v Vincent, the Employment Appeal Tribunal conducted a comprehensive review of the case law and determined that it could, disapproving several of its own previous decisions, including Byrnell v British Telecommunications. Justice Silber notes that the judgment in Byrnell does not refer to the two most relevant authorities, one of which had been expressly approved by the Court of Appeal.

This result could have much wider significance because Byrnell had also been the only authority for the proposition that a tribunal cannot reject an agreement where there has been a repudiatory breach of contract, such as the fact that a settlement has not been paid. Indeed, it is difficult to see a distinction between a rescission of a contract because of misrepresentation and one resulting from a repudiation. It would therefore seem to follow that precisely such an argument would now be expected to succeed.

In Byrnell, Judge Ansell makes a brief reference to authorities, apparently relied upon by the tribunal, which state that a compromise agreement must be enforced by a court unless it was agreed before the termination of employment, because otherwise it would not fall within the scope of the Extension of Jurisdiction Order. This is correct but, in the above situation, the claimant is not seeking to enforce the agreement in order to obtain damages for breach of contract. She is seeking to set it aside so that she can bring a straightforward tribunal claim for, say, unfair dismissal. These cases are simply irrelevant.

The consequence of all this is that employers should now be particularly wary of failing to comply with the terms of compromise agreements as they may find themselves in the tribunal rather than merely facing enforcement proceedings. On the other hand, in contrast to settlements where a claim is stayed on agreed terms, a new claim must be issued and normal time limits will apply. Therefore, employees will need to keep an eye on the deadline if they want to retain the option to elect for the tribunal route.

The single most common mistake made by inexperienced advocates and litigants in person in the Employment Tribunal is to assume that it is easy to demonstrate that an negative act by an employer was done on discriminatory grounds. For example, many think that evidence of having been bullied is sufficient even where there is no basis for suggesting that the bullying had anything to do with being a member of one of the protected groups. There is a similar problem in constructive dismissal cases where it is sometimes believed that a resignation as a result of stress is enough and that it does not matter which act of the employer, if any, actually caused the stress. However, (most) tribunals are very strict about not exceeding their jurisdiction and they will not allow what really amount to personal injury cases to succeed merely because they disapprove of a respondent or feel sorry for a claimant.

When, as often occurs, there is a discrimination claim concerning numerous incidents, the tribunal will want to isolate those for which there is a discriminatory motive from those for which there is not. This can sometimes be fatal to the case. For example, to make out harassment, an employee is required to show either a violation of his dignity or the creation of an adverse environment, and one or two minor incidents may well not have this effect. Even where such an environment is created, if it is largely the result of events for which there is no jurisdiction, it will not assist if off-colour comments contributed to it if they would be insufficient on their own. Similarly, tribunals will rarely find constructive dismissal in cases of overwork and a claim of this nature will not be strengthened by a few mildly aggressive acts by an employer. Regrettably, although this reasoning is entirely justified, tribunals are reluctant to spell it out explicitly for fear of an appeal. Instead, they have a tendency to make adverse findings of fact which can be distressing for claimants and means that they often fail to understand why they have lost.

There are some more experienced representatives who understand the above problems and realise that it is necessary to selectively plead those points that will most assist the case. This is very sensible but it will not prevent tribunals from considering whether there are some unpleaded issues which may have actually been the cause of the stress felt by the claimant. It is even possible that tribunals have become more sceptical to counter the development of more sophisticated litigation tactics and that this could be as detrimental to strong claims as to weak ones. Therefore, it is important to be able to lead evidence to show which particular acts were the most upsetting for the claimant. It goes without saying that it will help a great deal if there are documents to prove they were complained about at the time.

Consider the followings two scenarios: a black person claims race discrimination on the grounds that she has wrongly been assumed to be mentally ill; and a white person claims race discrimination on the grounds that she has wrongly been assumed to be mentally ill. Even without knowing any of the facts, the first case seems immediately more plausible than the second and the reason for this is that there is a well-known and widespread tendency to overrefer and overdiagnose black people with mental illness.

The next question is whether this stereotype is a sufficent to found a tribunal claim. In the case of Johnson v Coopers Lane Primary School, the Employment Appeal Tribunal concludes that it is not, for the persuasive reason that it is unjust to make a finding of discrimination against an employer without some evidence relating specifically to the behaviour of that particular employer, rather than just people in general. This echoes some very similar reasoning by Justice Underhill in the decision of B and C v A.

However, Judge Ansell appears to go further than this. He agrees, in paragraph 40, with a submission of the respondent that tribunals should not take judicial notice of the existence of stereotypes, even in cases where (unlike this one) there is statistical evidence to support them. It is true that such evidence is never determinative on its own but surely it must be right that it can be used to bolster a case where other reasons to suspect discrimination exist. A fundamental rule of evidence is that the more unlikely an event, the stronger evidence is required to show that it took place. A corollary of this is that events which can be shown to be more likely than others will require less compelling evidence in their support.

I am not even certain that statistical evidence would be strictly necessary in a case like this. There is a convention that a tribunal panel hearing a race discrimination case should include at least one member with special experience of race relations. Such a person would undoubtedly be aware of the stereotype explored here, and also numerous others, and would therefore be in a position to be alive to their use.