Ms K Kohli v Department for International Trade 2023
The Claimant in this case, Ms Kholi (who is of Indian origin), was employed by the Department for International Trade from the 10 July 2019 as a Global Strategy Directorate (“GSD”) which meant she was a grade 7 civil servant.
She initially held a dual role in that she worked as Head of Latin America and the Caribbean (“LATAC”), as well as a global role in Britain. Her responsibilities however began to change, and in October 2019 she was offered the choice of either focusing on LATAC, or the role in Britain. She chose LATAC.
In May 2020, the Claimant voluntarily began temporary employment in the COVID test kit delivery department of the Department for International Trade, known as surge. This meant she could no longer work on LATAC, and this was picked up, albeit initially temporarily by another employee.
The Claimant wanted to return to this previous role in July 2020, but was informed that there was not sufficient work to do in this role for a full-time position. As a result of her continuing to work in other areas of the business, she received a poor appraisal grading.
By preventing the Claimant from returning to LATAC, she lodged a grievance alleging sex, race and disability discrimination. Her grievances were dismissed, so she brought tribunal proceedings in December 2021. The Employment Tribunal (“ET”) narrowed down the acts complained of into four:
- Ms Kohli was not given her previous role of Head of LATAC on return from surge.
- Was not offered a different role (Head of Africa) which was subsequently offered to a different colleague.
- She was required to take the role of Head of LATAC (with focus on the Caribbean) and Wellness.
- A performance grade of 3C was given whilst one of her white colleagues received a performance grade of 3B.
All claims of disability and race discrimination were dismissed at the ET. They found that her initial role was by its very nature a dual role, and the fact that part of her role (LATAC side) reduced was not unusual. They accepted that there was a reduction in workload, and that she therefore couldn’t return. They also saw no discrimination in offering a vacant role to an internal candidate who was at the time without a role. In any event, the Claimant didn’t appear well suited to the role. The Claimant also accepted the role Head of LATAC (with focus on the Caribbean) and Wellness, after turning down a number of other internal vacancies. Finally, the Tribunal decided that a grading of 3C was not a criticism of her performance, and if anything, the Claimant had an unrealistic view of her own performance.
The claimant subsequently appealed to the Employment Appeal Tribunal (“EAT”) on the basis that the ET failed to consider a question of subconscious discrimination. She pleaded that the decisions taken above by the Respondent must be considered with specific reference to subconscious discrimination – i.e. even if the motivation wasn’t overtly discriminatory, there may have been subconscious bias that impacted the decision itself. She asserted that her Indian origin may have subconsciously influenced the Respondent.
However, the EAT found no evidence or suggestion of stereotyping when considering the respondents decisions to deny offering the internal roles and the grade given to her. As such, the EAT found that there were no facts which could be properly inferred that Ms Kholi’s Indian Origins played a part and the appeal was dismissed. The EAT did go further, they said that although there will be cases where the possibility of subconscious discrimination must be considered, it will not apply to each and every case a Tribunal must consider. It is only where particular features of the evidence in a case alert a Tribunal to the risk of subconscious discrimination, and that will not be the norm.
This judgement will be welcome news to Employers and their decision makers, however, it does highlight the need to carefully consider decisions made in relation to employees, and certainly around the changing of job roles.
If you would like any further advice on this, please contact our Employment Solicitor, Lauren Ogden on 0161 832 3434.