The claimant in Alam v London Probation Trust had been employed as a probation prosecutor for about seven years when she was dismissed following an incident when there was a delay of a few hours in processing a warrant in a high risk case where a person was suspected of having offended whilst on probation.  Her complaints to an employment tribunal that she had been discriminated against and victimised were dismissed.

In discrimination cases the tribunal has to consider whether the claimant has produced sufficient evidence to require the employer to give a cogent explanation as to why the treatment had not been because of the protected characteristic (race, in this case).  Here the tribunal had failed to ask the right questions – why was the claimant treated less favourably; what was the employer's conscious or subconscious reason for the treatment?

The claimant had argued that another employee in similar circumstances had been treated more leniently.  The tribunal had dealt with this by saying that they had asked themselves the question – was the decision to instigate disciplinary action against the claimant due to the fact that her actions were more serious and amounted to potential misconduct whereas those of another employee were not, or was it because of her race?  The EAT pointed out that this was not the correct approach.  The tribunal should not have set out the two potential explanations as stark alternatives.  They could both have been reasons.  The fact that there are other factors, even if they have greater weight, is not a basis for reaching the conclusion that there is nothing for the employer to explain from the discrimination perspective.  The question is whether discrimination was a "significant factor" in the treatment.