In Kansal v Tullett Prebon plc a tribunal found that there was no race discrimination when an employer excluded an employee of Indian national origin – Mr Kansal – from a sales pitch. The reason it rejected the allegation was that one of the employees who was included in the pitch was also of Indian origin. The Tribunal concluded from this that race could not have been the reason why Mr Kansal was excluded.
The EAT held that this was a mistaken approach. The Tribunal should have asked why Mr Kansal had been excluded. Instead it concluded that ‘in general’ the employer did not discriminate against people of Indian origin when deciding who was to be included and who was not. That was not, however, an answer to the charge that discrimination had taken place in the particular case of Mr Kansal. Just because an employer does not adopt a universal policy of discriminating against all employees of a particular ethnic origin, that does not mean that it cannot have discriminated against a particular employee on a specific occasion.
On another issue, the Tribunal had held that there was no reason to believe that race lay behind the employer prohibiting Mr Kansal from working from home. The Tribunal saw no reason to reject the explanation of the employer that Mr Kansal had abused this privilege in the past and that his absence from the office caused resentment in the team. The Tribunal had not considered, however, the case of the comparator put forward by Mr Kansal – another manager who had been allowed to work from home and who – Mr Kansal said – had behaved in exactly the same way without the right to work from home being taken away from him. The Tribunal should have considered whether this comparator was appropriate and looked at why Mr Kansal was treated differently. These two matters were sent back to the Tribunal to be reconsidered.
This case demonstrates some of the complexities of discrimination law. Many would share the employer’s view in this case, that the inclusion in the sales pitch of other employees of the same origin as Mr. Kansal would provide sufficient defence against any claim of discrimination. Such a broad-brush approach however must be replaced with an examination of the facts on a case by case basis.
Such an examination would also alert the employer to the risk of withdrawing Mr. Kansal’s right to work from home, whilst simultaneously permitting a colleague with similar circumstances to do so. Employers are advised to keep in mind one of the fundamental principles of good people management when they make decisions – be consistent.