David Green (instructed via Advocate) successfully represented a claimant in the EAT, in a direct race discrimination claim against the Cabinet Office.
Bogdan v The Cabinet Office – Government Digital Services [2024] EAT 177, revolves around allegations of direct race discrimination, focusing on how her repeated requests for job evaluation were handled during her employment.
Case Background
Ms. Bogdan, a Romany Gypsy, joined the Civil Service in 2015 through a fast-track apprenticeship scheme, later becoming a substantive Executive Officer (EO) in the Standards Assurance Team. Over several years, she contended that her duties expanded significantly, aligning with those of higher-grade roles, yet her requests for a job re-grading went unaddressed. In 2020, following a formal evaluation process, her role was upgraded to the Higher Executive Officer (HEO) level, though she argued this should have occurred much earlier, with retrospective recognition and back-pay.
Ms. Bogdan alleged that the failure to address her job grading requests, informal and formal, constituted direct race discrimination, as colleagues not of Romany Gypsy heritage received different treatment.
Issues on Appeal
The ET dismissed Ms Bogdan’s claims, in particular those alleging that she had made repeated requests for job re-evaluation. The ET found that the Cabinet Office operated a formal system of requests, and that she had made only one request under that policy.
On appeal, she contended that the ET’s approach to fact finding had focussed entirely on the formal policy and had failed to address her complaint, which was that she had made repeated requests, many of which were not made under the formal policy.
The appellant argued that the ET’s judgment was procedurally flawed because it failed to engage with her case on informal requests and their discriminatory treatment. This omission, it was claimed, amounted to a serious procedural irregularity.
The EAT’s Findings
Sarah Crowther KC (sitting as a deputy High Court Judge in the EAT) identified errors in the ET’s handling of the case.
The EAT agreed that the ET neglected to engage with Ms. Bogdan’s allegations that she had repeatedly made informal requests for job re-evaluation over several years. The Tribunal’s narrow focus on formal requests ignored key parts of her discrimination claim.
The ET did not provide sufficient reasoning to explain why it dismissed Ms. Bogdan’s claim that informal requests were made and treated less favourably due to her race. This failure rendered the decision procedurally flawed.
The EAT remitted issues 6.1 and 6.2 to a freshly constituted Tribunal, underscoring the need for a fair and comprehensive reconsideration of Ms. Bogdan’s claims regarding informal job grading requests.
The EAT upheld the ET’s rejection of Ms. Bogdan’s broader claim that her role had been consistently under-graded for five years. The Tribunal found credible evidence that her job evolved over time and could not have warranted a higher grade from the outset.
Ms. Bogdan’s partial success hinged on the EAT’s acknowledgment that the ET failed to consider significant aspects of her claim. Specifically, the omission to address informal requests for job re-grading and their alleged discriminatory treatment undermined the fairness of the original proceedings.
This judgment underscores the importance of Tribunals thoroughly addressing all aspects of discrimination claims, particularly where informal practices are alleged to reflect systemic bias. It reaffirms that claimants are entitled to clear, reasoned decisions that engage with the entirety of their case.
For employment lawyers, this case illustrates the necessity of vigilance during case management to ensure that evolving claims are fully incorporated and addressed. The judgment also highlights the potential complexity of handling claims involving informal workplace practices and systemic discrimination.
