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Cite as: [2000] EWCA Civ 103
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Case No: EATRF/1999/0252/A1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
The Employment Appeal Tribunal
Royal Courts of Justice
Strand, London, WC2A 2LL
Tuesday 4 April 2000
LORD JUSTICE PETER GIBSON
LORD JUSTICE MANTELL
and
MR. JUSTICE SUMNER
TNT EXPRESS WORLDWIDE (UK) LTD. |
Appellant | |
- and - |
||
MR. VICTOR BROWN |
Respondent |
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
----------------------------------
Mr. Paul Nicholls (instructed by Messrs. Hewitson Becke and Shaw of Cambridge for the Appellant)
Mr. Clive Sheldon (instructed by Messrs. Ironsides of Leicester for the Respondent)
Judgment
As Approved by the Court
Crown Copyright ©
LORD JUSTICE PETER GIBSON:
1. This appeal arises out of a claim by an employee of racial discrimination by victimisation by the employer. The central issue is the characteristics of the comparators, often called "the control group", than whom the person victimised has been less favourably treated. After the conclusion of the hearing on 24 February we were informed by counsel that another constitution of this court had that day delivered judgment on that point. Our decision was therefore deferred until counsel had had the opportunity to put in further written submissions in writing and we had considered them. This has now been done.
2. The appeal is brought by the employer, TNT Express Worldwide (UK) Ltd. ("TNT"), from the decision on 19 January 1999 of the Employment Appeal Tribunal ("the EAT") dismissing TNT's appeal from the decision, promulgated on 7 October 1997 of an Employment Tribunal ("the Tribunal") sitting at Bedford and Bury St Edmunds. The Tribunal upheld the complaints of the employee, Victor Brown, of victimisation and unfair dismissal.
Race Relations Act 1976
3. It is convenient to refer at the outset to the relevant provisions of the Race Relations Act 1976 "(the Act").
4. S. 1(1) provides that a person discriminates against another in any circumstances relevant for the purpose of any provision of the Act if
"(a) on racial grounds he treats the other less favourably than he treats or would treat other persons".
That is direct discrimination, in contrast to indirect discrimination the subject of para (b).
5. S. 2 deals with discrimination by way of victimisation:
"(1) A person (`the discriminator') discriminates against another person (`the person victimised') in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has -
(a) brought proceedings against the discriminator or any other person under this Act; or
(b) ..... or
(c) ..... or
(d) .....
or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do any of them."
The matters referred to in the lettered subparagraphs are often called "the protected acts".
6. S. 3(4) provides:
"A comparison of the case of a person of a particular racial group with that of a person not of that group under section 1(1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."
It is to be noted that this provision only applies to s. 1(1), and is not expressed to apply to s.2.
7. Part II of the Act relates to discrimination in the employment field, making particular types of discrimination unlawful. By s. 4(2):
"It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee -
(a)...., or
(b) ...., or
(c) by dismissing him, or subjecting him to any other detriment."
8. By s. 32(1) anything done by a person in the course of his employment is to be treated for the purposes of the Act as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval.
The facts
9. TNT carries on business in the U.K. on a very substantial scale, providing services to businesses in collecting and delivering parcels and packets. Mr. Brown, who is black, worked for TNT at its Northampton depot as a local pick-up and delivery van driver from October 1994 until he was dismissed on 21 February 1997. Earlier Mr. Brown had presented a complaint to the Tribunal, alleging racial discrimination, "unreasonable harassment" and "tampering with wages not notified to myself". The complaint was made against TNT alone, although three individuals, Mr. King and Mr. Dodds (who were TNT managers at the Northampton depot) and Mr. Gardner (who was a sub-contractor of TNT) were mentioned and were subsequently added as respondents. All the four respondents opposed the complaint. TNT had before then taken disciplinary proceedings against Mr. Brown on two occasions. On 5 February 1996 Mr. Brown was given a verbal warning and on 5 February 1997 further disciplinary proceedings, in relation to what was called "the Braitrim incident", were commenced against Mr. Brown, but adjourned.
10. Mr. Brown was being assisted in the presentation of his complaint to the Tribunal by the Northampton office of the Racial Equality Council. The hearing of that complaint was due on Monday 10 February 1997 and Mr. Brown arranged to see an adviser in the Council during his lunch-break on 5 February. On arrival for the appointment Mr. Brown discovered that the adviser was unable to keep it. Mr. Brown later that day asked Mr. Hobbs, who had recently been appointed Depot Operating Manager, for leave of absence from work on Friday, 7 February, for the purpose of pursuing his consultation with that adviser. Mr. Hobbs indicated that so far as he was concerned Mr. Brown could take the afternoon off but Mr. Hobbs said that he would need to refer to "personnel" for confirmation. Mr. Hobbs as Mr. Brown's line manager saw no operational reason for denying Mr. Brown's request and would have granted it if the decision had been solely his. In general TNT employees who gave at least 24 hours' notice were as a matter of custom and practice given any short leave of absence requested for domestic reasons without particularly close enquiry as to the quality of the reasons.
11. Mr. Hobbs (incorrectly referred to several times in subpara. (k) of para. 6 containing the Tribunal's findings of fact as Mr. Dodds) consulted his line manager, Mr. Matthews, about Mr. Brown's request for leave. The Tribunal found that Mr. Matthews decided, "apparently because [Mr. Brown] had no holiday entitlement left", that leave should be refused. Mr. Hobbs told Mr. Brown of that decision on the evening of 6 February 1997, but Mr. Brown indicated that he would have to keep his appointment with his adviser in any event. Mr. Brown worked on the morning of 7 February. At lunchtime that day Mr. Hobbs handed him a letter drafted by TNT's Employment Relations Officer, Mr. Jamieson, but signed by Mr. Hobbs confirming the decision to refuse him leave of absence that afternoon. The letter stated that Mr. Brown had already taken 20 days of his holiday entitlement of 22 days for that year. Thus Mr. Brown did have some holiday entitlement left. Mr. Brown was expressly reminded that breach of the instruction not to take leave would lead to disciplinary action which could result in summary dismissal. Despite that letter, Mr. Brown left TNT's premises at 1pm to keep his appointment. Mr. Hobbs had no operational difficulty in covering Mr. Brown's duties that afternoon.
12. The Tribunal hearing took place on 10 and 11 February, when the hearing was adjourned to 13 March. On 12 February Mr. Brown returned to work. He was called to meet Mr. Jamieson who discussed with Mr. Brown his absence from work on 7 February as well as the Braitrim incident and then suspended him from work.
13. On 21 February the outstanding disciplinary hearing which had commenced on 5 February resumed before Mr. Matthews. Both the Braitrim incident and the issues arising from his absence without leave were thoroughly considered. Mr. Matthews gave Mr. Brown a final written warning in respect of the Braitrim incident and summarily dismissed him for his absence without leave. That decision was confirmed by letter to Mr. Brown on 24 February. Mr. Brown appealed under TNT's internal appeals procedure. The appeal was heard on 7 March by Mr. Bedborough, TNT's Midland Area General Manager. The Tribunal described the appeal as "a very full rehearing of both the relevant issues." Mr. Bedborough dismissed the appeal subject only to the substitution of dismissal on notice instead of summary dismissal for Mr. Brown's absence without leave.
14. On 13 March at the adjourned Tribunal hearing Mr. Brown, then acting in person, obtained leave to amend his complaint to include unfair dismissal and victimisation under the Act. The hearing continued on 14 March and on four days in July and on yet a further day in August 1997. In the decision promulgated on 7 October 1997 the Tribunal dismissed all Mr. Brown's complaints against the individual respondents and some of the complaints against TNT. As none of those decisions was the subject of appeal by Mr. Brown, I need say nothing further about them. But the Tribunal decided that TNT had discriminated against Mr. Brown contrary to the Act by refusing him time off work to consult and take advice about his complaint to the Tribunal of racial discrimination and by dismissing him. It also found that his dismissal was unfair. It said that the refusal by TNT to accede to Mr. Brown's request for leave of absence amounted to discrimination by way of victimisation which was unlawful under s. 4(2)(c) of the Act in subjecting him to a detriment. The Tribunal referred to its findings, the relevant parts of which I have narrated, and said (in para. 12):
"in light of those findings and the circumstances in which the events occurred, we find it virtually impossible to see any good reason for the refusal of that request other than the fact that [Mr. Brown] had made and was pursuing his complaint of discrimination against TNT."
The Tribunal then rehearsed the relevant facts, including Mr. Matthews' reliance on operational reasons for refusing leave of absence; the Tribunal inferred that for adequate reasons short leave of absence, possibly unpaid, would usually be granted by TNT and said that Mr. Brown's absence in fact caused TNT no operational problems whatsoever.
15. The Tribunal then referred to the guidance given by this court in Aziz v Trinity Street Taxis Ltd. [1988] ICR 534 to the effect that s. 2(1) of the Act requires a comparison between the treatment accorded to the person victimised and the treatment which would be accorded to another who has not done the protected acts at all. The Tribunal continued (in para. 13):
"In the present case this requires us to compare the treatment accorded to [Mr. Brown] in respect of his request for leave with the treatment which would have been accorded to another employee who made a similar request but who had not complained to an Industrial Tribunal of alleged racial harassment by TNT. Perhaps the true comparison to be made for this purpose is with another employee of TNT who sought on 48 hours prior notice a half day's leave of absence for the purpose of taking professional advice during normal working hours about some other litigious matter not in any way connected with his employment with TNT in, say, the County Court. On making that comparison we are in no doubt but that, given the other circumstances applicable to [Mr. Brown's] case, the leave would have been granted and, accordingly, that [Mr. Brown] was indeed treated less favourably in the circumstances than others would have been treated."
16. There was some discussion before us whether the words "that comparison" in the last sentence quoted referred to "the true comparison" mentioned in the second sentence or to the requirement to compare mentioned in the first sentence. But I think it tolerably clear that they at least include "the true comparison", even though introduced tentatively by the word "Perhaps" and that if the second sentence is a misdirection in law, that would invalidate the conclusion expressed in the third sentence.
17. The Tribunal then considered the second requirement identified in Aziz, that the applicant must satisfy the Tribunal of a causal connection between the less favourable treatment accorded to him and the protected act. The Tribunal said that it had given careful consideration to the credibility of the reasons which TNT had put forward for refusing the leave of absence, which, it said, lay mainly if not entirely in the operational difficulty alleged by Mr. Matthews, but it said that it did not begin to be persuaded by that evidence. It said that it had problems with the fact that when Mr. Bedborough determined the appeal he decided, for reasons which were not clear to the Tribunal, to substitute a penalty of dismissal on notice rather than the summary dismissal which Mr. Matthews had imposed and "which in ordinary circumstances might reasonably be expected as an appropriate sanction against an employee who has taken a half day off in flat defiance of his employer's instruction that he should not do so." The Tribunal continued:
"Consideration of these matters leaves us unable to accept that TNT's alleged operational difficulties were the true reason for refusing [Mr. Brown] the leave he had requested and we are left with the question what then was the reason? In the absence of any other rational explanation we are driven to the conclusion that the true reason was indeed the fact that [Mr. Brown] had made his complaint of racial discrimination against the company and that Mr. Matthews was not at this stage going to allow him time off work for the purpose of enabling him to take advice which might improve his chances of success in pursuing those complaints."
18. The Tribunal therefore found that TNT by refusing him leave discriminated against him contrary to s. 2(1), such discrimination being unlawful under s. 4(2)(c). It dealt with the dismissal in this way (in para. 14):
"[Mr. Brown] was subsequently dismissed for nevertheless absenting him from work on the afternoon in question and that dismissal, expressly based as it was on the denial - tainted by unlawful discrimination - of [Mr. Brown's] request for leave was therefore similarly tainted and constituted further discrimination - and discrimination which the Tribunal regards as having been constitutionally incapable of rectification by Bedborough's hearing [Mr. Brown's] appeal against dismissal - by way of victimisation unlawful under section 4(2)(c) of the Act. It necessarily follows further from that conclusion that the dismissal was unfair and in breach of [Mr. Brown's] right not to be unfairly dismissed conferred by section 94 of the [Employment Rights Act 1996]."
19. There was then a remedies hearing, leading to an award, promulgated on 22 December 1997, of compensation totalling just under £20,000, less certain benefits which had been received by Mr. Brown.
20. TNT appealed to the EAT, arguing that the Tribunal erred in its conclusion relating to the refusal by TNT to allow Mr. Brown time off work. It said that the Tribunal failed to draw the correct comparison for determining whether Mr. Brown had been less favourably treated. Further, it said that the Tribunal was wrong to hold that the reason for Mr. Brown's treatment was the fact that the dismissal was by reason that Mr. Brown had made his complaint of racial discrimination against TNT. It challenged the reasoning of the Tribunal in finding the dismissal to be a further form of victimisation, and it argued that if there was victimisation prior to the appeal to Mr. Bedborough the appeal covered it. All these points were rejected by the EAT in a full and carefully reasoned judgment delivered by Lindsay J.
21. On the appeal to this court, Mr. Nicholls for TNT renews his attack on two parts of the decision of the Tribunal: (1) that TNT victimised Mr. Brown by refusing to permit him time off, and (2) that the dismissal was an act of victimisation and unfair.
Refusal of time off
22. Mr. Nicholls submitted that in approaching allegations of discrimination generally and victimisation in particular, the Tribunal is concerned to identify what was the real reason for the alleged discriminator's actions and is not concerned with the reasonableness of those actions. That is plainly correct (Glasgow City Council v Zafar [1997] 1 WLR 1659). Mr. Nicholls argued that the Tribunal was more concerned with whether the reasons given by TNT were good and rational than with whether the reasons were the real reasons. I do not think that that is a correct characterisation of the Tribunal's decision. Read fairly that decision to my mind shows clearly that the Tribunal was concerned to identify the real reason for Mr. Brown's less favourable treatment. It rejected, as it was entitled to do, the reason proffered by TNT as not being "the true reason" and gave its conclusion as to "the true reason" in the terms which I have recited in para. 17 above. In my judgment that was a conclusion open to the Tribunal.
23. The primary attack mounted by Mr. Nicholls on this part of the Tribunal's decision was that the Tribunal failed to draw the correct comparison. That, he said, should have been between a person who has done a protected act and a person who has not, and the Tribunal should merely have withdrawn from the comparator's case the protected nature of the act. He argued that the proper comparison would have been with a person who sought time off in order to take advice in connection with a claim against TNT and that the Tribunal erred in defining the comparator as someone seeking advice in connection with a dispute wholly unrelated to his employment because to do so prevents a comparison of like with like.
24. Mr. Sheldon argued to the contrary. He pointed out that the Act does not dictate who or what the comparator should be in cases of victimisation, referring merely to the "circumstances relevant for the purposes of any provision of [the Act]." He contrasted this with the express provision in s. 3(4) relating to discrimination under s. 1(1) and the absence of any corresponding provision for s. 2(1). He argued that it was sufficient if the control group does not include persons who have performed the protected act, provided that the comparison is fair, and that the Tribunal has some discretion as to the choice of hypothetical comparators. Its decision he said, should only be interfered with if the decision was perverse. Mr. Sheldon challenged Mr. Nicholls' suggestion that the control group must consist of those who brought proceedings against the employer (other than under the Act). He said that that would enable an employer to justify dismissing an employee for seeking time off to prepare a claim under the Act by saying that the employer would have done the same thing had the employee brought a claim under the Sex Discrimination Act 1975 or had the employee asserted a statutory right dismissal for which assertion is rendered automatically unfair by s. 104 Employment Rights Act 1996. Mr. Nicholls accepted that the control group would not only exclude those who did protected acts under the Act but also, because the employer could not be allowed to rely on an act rendered unlawful under other discrimination legislation, the control group must exclude those bringing proceedings against the employer, complaining of such discrimination.
25. The correct composition of the control group in a victimisation case has been considered in a number of cases.
26. In Cornelius v University College of Swansea [1987] I.R.L.R. 141 a female employee had requested a transfer to another post and a hearing under the employer's grievance procedure. When that request was not granted she complained of victimisation under the provisions of the Sex Discrimination Act comparable with s. 2 of the Act. Bingham L.J., with whom Sir John Donaldson M.R. and Fox L.J. agreed, said this (at p. 145 para. 31):
"In all these sections discrimination has as its primary meaning that which is given by s. 1 (as extended to men by s. 2). But the [Sex Discrimination Act] would be very defective if it stopped there, because those seeking to enforce the Act by the machinery provided or to promote the operation of the Act by word or deed could be subjected to penalties (or less favourable treatment) by persons who could say with some plausibility that they were not discriminating on grounds of sex by simply penalising troublemakers. If, therefore, the objects of the Act were to be achieved, there had to be protection for those who sought to rely on it or to promote its operation. That is the purpose of s. 4 [the equivalent of s. 2 of the Act], which has an obvious although partial analogy to the law of contempt."
27. Bingham L.J. then referred to the two requirements for victimisation to be established: (1) in subjecting the complainant to detriment in relation to her employment the employer treated the applicant less favourably than it would in the same circumstances have treated other persons; and (2) that it did so because the complainant had brought proceedings against the employer under the Sex Discrimination Act. He said that neither requirement was satisfied, adding (at pp. 145,6 para. 33):
"There is no reason whatever to suppose that the decision of the Registrar and his senior assistant on the [complainant's] requests for a transfer and a hearing under the grievance procedure were influenced in any way by the facts that the [complainant] had brought proceedings or that those proceedings were under the Act. The existence of proceedings plainly did influence their decisions. No doubt, like most experienced administrators, they recognised the risk of acting in a way which might embarrass the handling or be inconsistent with the outcome of current proceedings. They accordingly wished to defer action until the proceedings were over. But that had, so far as the evidence shows, nothing whatever to do with the [complainant's] conduct in bringing proceedings under the Act. There is no reason to think that their decision would have been different whoever had brought the proceedings or whatever their nature, if the subject matter was allied. If the [complainant] was victimised, it is not shown to have been because of her reliance on the Act."
28. In Aziz v Trinity Street Taxis Ltd. [1989] QB 463, an Asian member of the respondent association of taxi cab operators secretly recorded conversations with other members, doing so by reference to the Act. He was expelled from the association by reason of his conduct. He was held by the Tribunal, the EAT and this court not to have been treated less favourably by the association than any other member who had secretly recorded conversations relating to the business activities of the respondent would have been treated. Slade L.J., giving the judgment of himself, Neill and Mann L.JJ., said (at p. 483):
"A complaint made in reliance on section 2 necessarily presupposes that the complainant has done a protected act. If the doing of such an act itself constituted part of the relevant circumstances, a complainant would necessarily fail to establish discrimination if the alleged discriminator could show that he treated or would treat all other persons who did the like protected act with equal intolerance. This would be an absurd result and, in view of the separate, second limb of section 2(1), directed to the questions of causation to which we are about to come, such a construction is not, in our judgment, required for the protection of persons who might otherwise be found to have discriminated unlawfully by virtue of the subsection. In our judgment, for the purpose of the comparison which section 2(1) makes requisite, the relevant circumstances do not include the fact that the complainant has done a protected act.
....
The treatment applied by the alleged discriminator to the complainant has to be compared with the treatment which he has applied or would apply to persons who have not done the relevant protected act.
Applying this test, it is clear that on the facts of the present case and in the circumstances relevant for the purposes of sections 2 and 11(3)(b), i.e. the complainant's membership of [the association], [the association] has treated the complainant "less favourably than in those circumstances [it] treats .... other persons," i.e. by expelling him from membership."
29. In Nagarajan v London Regional Transport [1998] I.R.L.R. 73 among the complaints of a complainant was one of victimisation under the Act. The complainant had applied by post for a job, but the application had gone astray and the respondent's solicitors had not asked him to submit a fresh application, because, it was said and the Tribunal found, the complainant had primarily complained of racial discrimination. On this point the respondent's appeal was allowed by the EAT, Mummery J. (in an unreported decision of the EAT on 8 March 1996) saying that there was no evidence that the respondent's solicitors, in failing to advise the complainant to reapply, had treated the complainant less favourably than they had treated or would treat other persons, who had not committed one of the protected acts, or that they would not similarly suffer from the same failure by the respondent's solicitors of which the complainant claimed to be the victim. Thus it is clear that Mummery J. proceeded on the footing that the control group would consist of those whose applications had been lost. On appeal to this court, in a judgment with which Ward L.J. and Sir John Vinelott agreed, I said (at p. 76 para. 13):
"It is common ground that in the comparison the members of the control group must be those who have not done the protected act. For my part, in agreement with the EAT, I would further limit the control group to those whose applications had gone astray as otherwise one is not comparing like with like."
Although the decision of this court was reversed by the House of Lords ([1999] 3 WLR 425) that part of the decision was left unaffected.
30. The considerations which I believe that I had in mind when making that observation were well articulated by Chadwick L.J. in Wakeman v Quick Corporation [1999] I.R.L.R. 424 at pp. 432-3, paras. 58-62. In stating what is implied in the requirement of s. 1(1)(a) of the Act of treating the complainant less favourably than another employee on racial grounds, Chadwick L.J. said that unless there was no material difference in their circumstances it was impossible to conclude that the complainant was being treated less favourably than the comparator on racial grounds, as the difference in treatment might be attributable to the difference in circumstances. Mr. Sheldon submitted that Potter L.J.'s approach in that case was very different, but I do not believe that he was saying anything different. Nor, it seems, did Beldam L.J., who agreed with both Chadwick L.J. and Potter L.J.
31. However, neither Nagarajan nor Wakeman dealt specifically with the question whether the like-with-like approach required the control group to be comprised of persons who were suing the employer. That was the question in issue in Chief Constable of West Yorkshire Police v Khan, unreported, 24 February 2000. In that case the Asian complainant had brought a complaint of race discrimination against his employer, the West Yorkshire Police. He subsequently applied for another job with the Norfolk Police, who asked West Yorkshire for a reference. West Yorkshire responded:
"Sergeant Khan has an outstanding Industrial Tribunal application against the Chief Constable for failing to support his application for promotion. In the light of that, the Chief Constable is unable to comment any further for fear of prejudicing his own case before the Tribunal."
The complainant claimed that he had been victimised by the employer not supporting the complainant's application for promotion. That complaint was upheld by the Tribunal and the EAT. The employer on appeal contended that the wrong comparator for a victimisation complaint had been chosen. Lord Woolf M.R. (with whom Hale L.J. and Lord Mustill agreed) described the "short but by no means easy point to resolve" as
"What should be the proper approach to selecting an appropriate comparator in determining complaints that a person has been victimised under either [the Act or the Sex Discrimination Act]?".
32. It was submitted for the employer that the appropriate comparator was some other employee who had brought proceedings against the employer but not under the Act. The Master of the Rolls said that he would like to look favourably upon that submission, but that he was driven to the conclusion that that was not the correct approach. He said (para. 24):
"The correct approach to the application of s. 2 in this context is to identify the appropriate comparator, not by looking at the reason why the reference was not provided, but by considering what was requested. Here what was requested was a reference and it is necessary to compare the manner in which other employees in relation to whom a reference was requested would normally be treated and compare the way they would normally be treated with the way in which the respondent was treated. It is the request for a reference which is the circumstance which is relevant in finding the comparator under s. 2 of the Act. The reason why the respondent was treated less favourably with regard to a reference was because he had brought proceedings. It would not, however, be correct to compare him only with those persons in order to ascertain whether he had been treated less favourably."
33. The employer relied on the passages which I have cited from Bingham L.J.'s judgment in Cornelius. But Lord Woolf did not regard that case as decisive. The employee relied on the passages which I have cited from Slade L.J.'s judgment in Aziz. Lord Woolf agreed and concluded that there was no error in the rejection of the employer's suggestion of a comparator who had brought proceedings against the employer other than under the Act.
34. It was contended by Mr. Nicholls that this court is not bound by the doctrine of precedent to follow Khan for two reasons: (i) neither Nagarajan in this court nor Wakeman was referred to in the judgment of Lord Woolf; (ii) the decision in Khan is inconsistent with those two decisions. Mr. Nicholls argued that Khan was decided per incuriam, and that it should not be followed. He said that the reasoning of Chadwick L.J. in Wakeman should be applied and that the effect of the decision in Khan was not to provide a remedy to those who suffer less favourable treatment because they bring discrimination proceedings but to put employees who sue their employers on discrimination grounds in a preferential position by comparison with other employees who take action against their employers on other grounds.
35. Counsel has ascertained that Nagarajan in this court was referred to in the skeleton arguments in Khan so that it cannot be maintained that what I said in Nagarajan was not before this court in Khan. Wakeman was not cited in Khan, but it was a decision on s. 1(1)(a) of the Act, not s. 2(1). The fact that under Khan employees invoking the discrimination legislation against their employers are given protection against victimisation whereas those who bring proceedings against their employers on other grounds are not given protection does not seem to me a sufficient reason for not following Khan. Whatever conclusion I might have reached but for Khan, in my judgment this court should follow a very recent decision of this court on the same specific issue whether the comparator must be a person suing the employer but not under the Act. It is clear that this court in Khan decided that that was not necessary, that the comparator was to be identified by looking at what was requested (not at the reason why the request was refused), asking how that request would normally be treated and then comparing that normal treatment with the treatment afforded the applicant.
36. Mr. Nicholls, however, submitted that if Khan was to be followed the consequence of the application of Khan is that the appeal must be allowed. He said that the Tribunal should have asked (i) whether Mr. Brown was treated less favourably than another employee who asked for time off, and (ii) if so, whether the less favourable treatment was caused by the fact that Mr. Brown had brought proceedings under the Act. Mr. Nicholls submitted that on the first question the Tribunal was wrong to have considered the reason why the comparator sought time off. I accept that on the basis of Khan it was not necessary to give the comparator the characteristic that he had a particular reason, connected with litigation, for seeking time off. But I do not regard that as a fatal error given that the Tribunal rightly considered the comparator to be a person seeking leave of absence and given its finding of fact, to which I have referred in the last sentence of para. 10, that ordinarily employees giving at least a day's notice were permitted time off.
37. On the second question Mr. Nicholls suggested that the Tribunal failed to consider whether the reason for Mr. Brown's treatment was a protected act in the way that question was identified in Aziz and Cornelius, in particular whether the reason for the treatment was Mr. Brown's act in bringing a claim under the Act as opposed to any other form of proceedings. Mr. Nicholls further submits that the Tribunal never addressed the issue whether Mr. Brown would have been treated in the same way whatever the nature of the proceedings he had brought against the employer and in connection with which he sought advice, and that it never addressed the issue that the reason for the treatment of Mr. Brown was not that the proceedings which had been brought were brought under the Act. I am not able to accept these arguments, ingenious though they are, in the particular circumstances of this case. As Mr. Sheldon rightly points out, the decision in Khan did not add anything new on the question of causation in a victimisation case, nor did it purport to do more than follow the existing authorities. The direction which the Tribunal gave itself (viz. "if he is to succeed [Mr. Brown] must satisfy the Tribunal of a causal connection between the fact that he had made his complaint of racial discrimination and his application to the Tribunal on the one hand and TNT's decision to impose less favourable treatment on the other") was impeccable. The Tribunal considered the reason given by the employer for its treatment of Mr. Brown but rejected it, and was fully entitled (in accordance with King v Great Britain-China Centre [1992] ICR 516 at pp. 528-9) to infer that the true reason was the fact that Mr. Brown had performed a protected act. The employer did not give evidence before the Tribunal that the true reason was the bringing of proceedings against it nor that anyone who brought proceedings of any nature against it would not be given time off to obtain legal advice. That being so, it cannot, in my judgment, be a valid ground for criticism of the Tribunal that it failed to consider whether that was the true reason or that it failed to address the latter point. Nothing in Aziz or Cornelius, decided as they were on their own different facts, compels a contrary conclusion.
38. I would therefore hold that in the light of Khan the Tribunal made no material error in the comparator whom it identified and that on the application of Khan the Tribunal also made no error.
39. For the sake of completeness I should mention that in his original skeleton argument Mr. Nicholls took the point that the Tribunal purported to find victimisation without identifying any individual who had victimised Mr. Brown. In London Borough of Hackney v Tiyamiyu, unreported, 20 February 1998, this court held that in the case of a corporate discriminator, such identification was unnecessary. In any event, Mr. Matthews was plainly identified by the Tribunal as the victimiser.
Dismissal
40. Mr. Nicholls submitted that the Tribunal erred in holding that Mr. Brown's dismissal was an act of victimisation. It was, he said, a non sequitur to reason that because the instruction not to take time off was an act of victimisation, therefore the dismissal was an act of victimisation. He argued that the Tribunal had failed to apply the requirements of s. 2(1) to the discrete decision by the employer to dismiss. He said that it could only conclude that the dismissal was an act of victimisation if it concluded that a person who had not brought a discrimination claim would have been treated differently and that the person who took the decision to dismiss him did so because of Mr. Brown's protected act.
41. There is no doubt that the Tribunal expressed itself tersely on this point and did not go through the dual requirements of s. 2(1) as it had carefully done in relation to the refusal of leave of absence. Mr. Sheldon submitted that this was a purely technical point, which ignored the reality of the decision and the factual matrix in which the decision was made. He pointed out that it was Mr. Matthews who had decided that leave of absence should be refused and who had taken the decision to dismiss which was based on the denial of Mr. Brown's request for leave. With some hesitation, I agree with Mr. Sheldon. In the particular circumstances I think that the Tribunal was saying that the dismissal, like the refusal of leave, was similarly tainted by discrimination, that is to say by TNT treating Mr. Brown less favourably than it would treat other persons in the same circumstances, and that Mr. Matthews at the disciplinary hearing when he dismissed Mr. Brown treated him less favourably for the same reason as the reason for the refusal of leave, that is to say because of Mr. Brown's protected act. Of course it would have been better that the Tribunal had expressed itself more fully, but I feel unable to say that the way it has worded its reasons involves an error of law.
42. Mr. Nicholls further submitted that the appeal cured any earlier defects in the dismissal process. He relied on the decision of the EAT in Whitbread v Mills [1988] I.C.R. 776, in which it was recognised that an unfairness on procedural grounds at an initial hearing might be rectified by the appeal hearing. Wood J. (at p. 795) said:
"Whether or not an appeal procedure has rectified the situation must depend upon the degree of unfairness at the initial hearing. If there is a re-hearing de novo at first instance, the omission may be corrected, but it seems to us that if there is to be a correction by the appeal then such an appeal must be of a comprehensive nature, in essence a re-hearing and not a mere review."
Mr. Nicholls relied on the Tribunal's description of the appeal to Mr. Bedborough as "a very full rehearing", and submitted that as the appeal hearing was part of the process leading to dismissal the Tribunal could only conclude that the dismissal was an act of victimisation if it held that Mr. Bedborough decided to dismiss the appeal because Mr. Brown had done the particular act.
43. I cannot agree with Mr. Nicholls. The decision to dismiss was taken by Mr. Matthews on 21 February. Mr Bedborough dismissed the appeal subject only to changing the penalty of summary dismissal to a dismissal on notice. No complaint was made by Mr. Brown about the appeal. Of course when considering for the purposes of s. 98(4) the question whether the dismissal was fair or unfair one looks at the whole of the dismissal procedure including any appeal. But it does not follow that it must be shown that the appeal decision, which is not the subject of complaint, must amount to victimisation. There are two further difficulties in Mr. Nicholls' way. One is that no case has been shown to us of a failed appeal rectifying an unlawful decision as distinct from rectifying a procedural error at an earlier hearing. The defect here was substantive, and this, I think, was what the Tribunal meant by saying that the discrimination was "constitutionally incapable of rectification by Mr. Bedborough's hearing". I agree. The other is a point taken by the EAT, that although the Tribunal described the re-hearing as very full, we do not know what material the Tribunal had before it as to how the appeal to Mr. Bedborough had been conducted nor what submissions were made to it. It may be that the appeal was not against the propriety of the underlying order which was discharged. I agree with the EAT that we lack the material to justify the view that the Tribunal was wrong to see the appeal as not having rectified the earlier defect.
44. I would therefore dismiss the appeal in respect of the dismissal as well.
LORD JUSTICE MANTELL:
45. I agree.
MR JUSTICE SUMNER:
46. I also agree.
(Order does not form part of the approved judgment)