In person For the v Respondent — 2022

The tribunal applied the direct discrimination test under section 13 of the Equality Act 2010, the victimisation test under section 27, and the burden of proof approach in section 136 and Igen v Wong. It also referred to JFS, Nagarajan, Laing, Bahl, Shamoon, Fraser, Anya, Pathan and Villalba. The claimant, Dr Kajal Sharma, alleged that the University of Portsmouth and Professor Gary Rees treated her less favourably because of race and later victimised her after she complained.

On the direct discrimination allegations, the tribunal preferred the claimant's evidence on the January 2016 bereavement events and found that Mr Rees knew her father had died but still asked her to do work before she left for India and again while she was in India on bereavement leave. It also found that, during the period when her infant son was critically ill, she did not receive the support she asked for, whereas Professor Rees was sympathetic and helpful to white colleagues in comparable situations. The tribunal treated those differences as evidence that she was not being handled in the same way as white staff.

The tribunal also found less favourable treatment in the way Professor Rees dealt with the interview of Karen Harman, his refusal to discuss the matter with Dr Sharma even though she chaired the panel, and his willingness to discuss it with a white panel member. It found that he discouraged her from pursuing the Senior Fellow of the Higher Education Academy qualification, whereas he gave positive and immediate support to a white colleague seeking the same qualification. It further found that he failed to flag the internal advertisement for the Associate Head role to Dr Sharma, despite knowing she intended to reapply and despite there being no real reason not to remind her.

The reappointment process was central to the case. The tribunal found that Dr Sharma had been doing the Associate Head role for five years, that there were no proper notes or objective scoring records from the interview, and that she was not given feedback when she asked for it. It considered the University's statistics showing that 11 of 12 white incumbents who reapplied had been reappointed, while Dr Sharma was the only BAME candidate in the sample to be unsuccessful. The tribunal concluded that Professor Rees's conduct and the selection process were tainted by race discrimination and that race was at least a factor in the decision not to reappoint her and to appoint Kerry Collier instead. It left the question of remedy and chance of reappointment for a later hearing.

On victimisation, the tribunal dismissed the complaints against Mrs Collier about the handover, workload changes, tone and related emails. It found that her emails were rude or unprofessional at points, but that her actions were driven by frustration and not because Dr Sharma had made protected complaints, and that she was not shown to know of the complaints at the relevant times. A separate victimisation claim succeeded against the respondents in relation to refusal to provide the selection notes and related documents: the tribunal found the failure was deliberate and linked to Dr Sharma's discrimination complaint and Employment Tribunal proceedings. No monetary remedy was determined because this was a liability-only judgment, and the amount was left for a later hearing.