England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEALS TRIBUNAL

		Royal Courts of Justice Strand London, WC2
		30th July 2004

1. LORD JUSTICE WALL: Mrs Florence Moyo seeks permission to appeal against part of a decision of the Employment Appeal Tribunal given on 26th March 2004 in a constitution chaired by His Honour Judge Clark.
2. The Employment Appeal Tribunal had before it an appeal by Mrs Moyo against a decision of the Employment Tribunal sitting at Stratford, which had been promulgated on 12th June 2003, and which had dismissed her complaints of racial discrimination and victimisation under the 1976 Act against her former employers, the Tower Hamlets Consortium. As Judge Peter Clark explains in the Tribunal's judgment, Mrs Moyo's appeal had been through a preliminary hearing at the Employment Appeal Tribunal, in a constitution chaired by Rimer J, at which her many and various grounds of appeal had been reduced to one question of law, identified by Rimer J in the following terms:

"that the Employment Tribunal failed to direct itself and/or to have regard to the consideration that discrimination within section 1(1)(a) of the Race Relations Act 1976 and victimisation within section 2 does not require proof of a conscious motive or intention but may be committed by the alleged discriminator either consciously or unconsciously. All other grounds of appeal are hereby dismissed."

Rimer J gave a careful judgment explaining why all other grounds of appeal were dismissed and why that one ground was going through.

3. The decision of the Employment Appeal Tribunal, in the constitution chaired by Judge Clark, was that Mrs Moyo's appeal should be allowed, insofar as it related to her victimisation claim, and that her claim that she had been victimised should be remitted to the Employment Tribunal to be heard by a different tribunal from that which had dismissed her claim. However, the Employment Appeal Tribunal dismissed Mrs Moyo's claim insofar as it related to direct race discrimination under section 1(1)(a), and it is that aspect which is the subject of the application for permission to this court.
4. Although it is not directly a part of the application for permission which Mrs Moyo makes today, I think it important to recall that the reason why the Employment Appeal Tribunal allowed Mrs Moyo's appeal in relation to the victimisation claim was that the Employment Tribunal had concluded that there was no causal connection between the employer's decision to dismiss Mrs Moyo and the relevant protected act, which in this case was the issue of her first originating application in the Employment Tribunal. The Employment Appeal Tribunal criticised that conclusion on two grounds: firstly, that the Employment Tribunal appeared to consider that the absence of express reference to protected acts pointed to no victimisation, whereas in fact it will often be a matter of inference; secondly, however, and perhaps more significantly, the Employment Tribunal found that the employer had concentrated at all times on the potential difficulties with Mrs Moyo's state of health, and found that the employer had not at any time referred to the fact that she had issued proceedings in the Employment Tribunal. That however was plainly wrong, and the categorical finding by the Employment Tribunal that no such reference had been made was contradicted by the notes of the disciplinary hearing at which Mrs Moyo had not been present, which contained no less than five references to the prohibited act. It followed therefore that the prohibited act had been very much in the minds of those present at the disciplinary hearing, and the Tribunal's conclusion that "there is nothing to suggest in any of the correspondence or the oral evidence before the Tribunal that it played a part in the decision to dismiss" was manifestly wrong.
5. It was for that reason that His Honour Judge Clark and his colleague allowed Mrs Moyo's appeal against that part of the case. As Judge Clark pointed out, however, it was not for the Employment Appeal Tribunal to decide whether or not that evidence pointed to the necessary causal connection between the prohibited act and Mrs Moyo's suspension or dismissal; but there had been a plain error of law. The Tribunal had made a material finding of fact which was not simply unsupported by any evidence but was contrary to the evidence before it. Accordingly, the Tribunal's decision as to victimisation could not stand and had to be set aside.
6. That conclusion has a relevance to the other part of the appeal because, notwithstanding the limited nature of the issue identified by Rimer J, Mrs Moyo seeks to point today to other findings of fact by the Tribunal which she says are suspect. Her difficulty in that regard is of course that her appeal to the Employment Appeal Tribunal has been through the preliminary hearing filter and that all the other grounds of appeal, apart from the one which I have already identified, have been dismissed. Nonetheless, I will in due course look at some of the Tribunal's findings of fact as I progress through my reasons.
7. I look first of all therefore at the direction which the Employment Tribunal gave itself on the question of direct discrimination and how an employment tribunal should approach that issue. The direction is set out in paragraphs 12 to 14 of the Tribunal's reasons under the heading "The Law", and is as follows:

"12. The Tribunal is concerned with direct race discrimination, namely less favourable treatment contrary to section 1(1)(a) and section 4(2) of the Race Relations Act 1976. There are also allegations of race discrimination by way of victimisation contrary to section 2 of the Act. The Tribunal is mindful of the fact that it is unusual for there to be clear, overt evidence of race discrimination and that it should consider matters in accordance with the guidance contained within King v Great China Centre [1991] IRLR 513 and Anya v University of Oxford [2001] IRLR 377.

13. We first have to make findings of primary fact and determine whether those show less favourable treatment and a difference in race. Here the Tribunal have to be satisfied that when establishing whether there has been less favourable treatment, comparisons between two people must be such that the relevant circumstances are the same and not materially different. The test we should use to establish whether there has been less favourable treatment is set out in Zafar v Glasgow City Council [1998] IRLR 36. That is not whether there was treatment which was less favourable than that which would have been accorded by a hypothetical reasonable employer in the same circumstances. The test is are we satisfied on a balance of probabilities and with a burden of proof resting on the applicant that this respondent treated this applicant less favourably than he treated or would have treated a white employee in the same circumstances.

14. Having satisfied ourselves of the primary facts we need to consider whether there was a difference in race and less favourable treatment and move on to the second stage to consider whether it is appropriate for us to draw an inference that the less favourable treatment was indeed on the grounds of race. That is whether it would not have occurred 'but for' the applicant's race. At this stage we would be looking to the employer for a credible non-discriminatory explanation or a reason for the difference in treatment. In the absence of such an explanation, or rather in the absence of such an explanation which we accept, it may well be appropriate (although each case must be considered on its individual facts and the employee bears the burden of proof) for us to draw an inference that the less favourable treatment occurred because of the applicant's race. There may, of course, be other findings of fact beyond the mere difference in race and the less favourable treatment which we consider it appropriate to draw an inference of unlawful discrimination: examples include previous or subsequent acts of discrimination, some unexplained adverse conduct and replies or failures to reply to a questionnaire served under the Act. Where the Tribunal is considering a hypothetical comparator the two stages tend to merge or become indistinguishable."

The view of both divisions of the Employment Appeal Tribunal which examined this point, that is the constitution chaired by Rimer J as well as that chaired by His Honour Judge Clark, was that they could see no patent misdirection in the Tribunal's approach and, although the paragraphs will be set out in extenso in the judgment, I record here that the Tribunal directed itself with reference to the well known judgment of Nicholls LJ in King v Great China Centre, to the judgment of Sedley LJ in Anya v University of Oxford, and to the decision of the House of Lords in Zafar v Glasgow City Council.

8. The Employment Appeal Tribunal in Judge Clark's constitution went on to examine each of the conclusions reached by the Tribunal in paragraphs 16 to 23 of their reasons. They needed to deal first with the question of whether there had been any less favourable treatment by the employer towards Mrs Moyo. The Tribunal had considered each of Mrs Moyo's claims in turn. Once again, the Employment Appeal Tribunal found that in so doing they were following the approach laid down by Sedley LJ in Anya, and the Employment Tribunal made a total of eight findings in relation to eight issues. They are as follows:

"5. The Tribunal express their findings on this part of the complaint, under the heading 'Conclusions' at paragraphs 16-23 of their reasons. First, the question of difference in treatment between the applicant and an actual or hypothetical comparator. They considered each of the applicant's factual complaints of alleged less favourable treatment, as enjoined to do by Lord Justice Sedley in Anya. They found as follows:

(1) that the applicant had not received less support from the Director, Amanda Johnson, in her capacity as Team Manager than did any other member of staff.

(2) There was no less favourable treatment of her in terms of insubordination or abuse by a junior member of staff, Miia Tolvenan, nor in respect of her complaints about that person, which were dealt with promptly.

(3) Her factual complaint that her grievance was handled unfairly by the respondent was not made out. Thus this basis for an allegation of less favourable treatment failed.

(4) The Tribunal accepted that the applicant's grievance appeal was dismissed without a hearing. That gave rise to potentially less favourable treatment when compared with a hypothetical white comparator. The tribunal concluded, however, that a hypothetical white manager would have been treated in the same way. The applicant had been afforded an opportunity to appeal. She failed to supply grounds of appeal, although requested to do so. There was no evidence to suggest to the tribunal that in these circumstances a white manager would have been treated differently, that is, would have been granted an appeal hearing.

(5) As to her complaint that under the probationary process whilst she, the applicant, was not confirmed in post a white comparator, Christine Saddle was. That was the fact and the tribunal acknowledged that there was here a difference in treatment and a difference in race. What was the respondent's explanation for that difference in treatment? First, that the respondent had found difficulties with the applicant's management style; further, the applicant had not attended an earlier initial assessment in March 2002, so that she had not gone through the same two-stage assessment as had her comparator. It seems that the applicant had refused to attend supervision meetings with the Director, who was to carry out the final assessment. The tribunal accepted the respondent's explanation (see King).

(6) Next, the tribunal rejected the applicant's factual case that she had been excluded from external meetings by the Director. Accordingly no question of less favourable treatment here arose.

(7) As to the applicant's medical suspension, the tribunal found on the facts that the respondent had reasonable grounds for believing that the applicant was sick and that on the same facts a hypothetical white manager would also have been suspended. There was no basis for finding a difference in treatment.

(8) Finally, as to the applicant's contention that her dismissal constituted less favourable treatment on racial grounds, the Tribunal examined the respondent's proffered reason for dismissal. It was that the applicant, who had been displaying symptoms of sickness and was on medical suspension, then refused to give any information, either through her general practitioner or the occupational health department about her health. The tribunal concluded that a hypothetical white manager would also have been dismissed. On a separate point the Tribunal noted that, contrary to their own procedures, the applicant was not informed by the respondent of her right of appeal in the letter of dismissal. The tribunal accepted the respondent's explanation that that was an error and were not persuaded that a white manager would have been differently treated. The same error would have been made (see Zafar). Where then lies the error in the tribunal's approach in law to the question of unlawful direct discrimination? Having carefully reviewed the concerns expressed by our colleagues at the preliminary hearing we are unable to detect any question mark other than in relation to the tribunal's handling of the question of the respondent's motive. We shall consider that point more fully when we turn to the complaint of victimisation, however in relation to direct discrimination we are quite unable to see any error of law within the framework of the question posed in the order made following the preliminary hearing. We accept Mr Rees' submission that, on analysis, the tribunal's approach to this part of the claim is wholly in accordance with their self-direction, itself unimpeachable at law."

As will be apparent from an analysis of those eight incidents, the Employment Tribunal found on the facts that in seven there had been no less favourable treatment, but in the one case where they found a difference of treatment, and a difference on race, the Tribunal accepted the explanation put forward by the employer. One example is Mrs Moyo's allegation that her grievance appeal had been dismissed without a hearing. The Tribunal concluded that a hypothetical comparator would have been treated in the same way. In the one case where there was a difference in race and an actual difference in treatment (this is the fact that she was not confirmed in post under the probationary process whilst a white comparator was) the Employment Tribunal again accepted the employer's explanation. Equally in relation to dismissal, the Tribunal found that there had been no less favourable treatment. It concluded that a hypothetical white comparator would also have been dismissed and that the same error committed by the employer (that is in failing to inform Mrs Moyo of her right of appeal in the first instance), would have been made in relation to a white comparator.

9. On this basis, how does Mrs Moyo attack the Tribunal's reasons? As a matter of logic, one only gets to conscious or subconscious racism if one finds that there has been less favourable treatment. The Tribunal found that there had not been less favourable treatment. Inevitably she has to get there by an attack on the Tribunal's findings of fact. This is difficult because unless, as in the case of victimisation, she can demonstrate from the documentation perversity on the part of the Tribunal or a complete failure to take into account a crucial aspect of the matter, she is debarred from appealing factual issues by the decision of Rimer J's Tribunal and the limited nature of the subject under appeal.
10. Despite this, I have this morning with her looked at a number of the incidents about which she complains. Clearly, she had on any view a difficult relationship with a woman called Miia Tolvenan, who was junior to her. She made a complaint about Miss Tolvenan's behaviour. Her evidence to the Tribunal was that this was quite inappropriately investigated, indeed probably not investigated at all, and certainly not in any meaningful sense. Her case was that Miss Tolvenan's behaviour had been wholly unacceptable; she had agreed that she had, for example, thrown objects around, and therefore the respondent had totally failed to acknowledge the humiliation and pain and abuse which Mrs Moyo had suffered. Because her employer did nothing about it this was an example of less favourable treatment.
11. The Tribunal dealt with this incident in several paragraphs, and in two paragraphs in particular. They made specific findings about it. They found that there was an appropriate investigation of Mrs Moyo's grievance. There may have been some minor divergence in procedure but they rejected any suggestion that Mrs Moyo had been treated in any way differently than Miss Tolvenan in relation to the grievance. They recorded the fact that there was an investigatory interview. Both were requested to attend training to build up their relationship. There was no difference in treatment. They record that Miss Tolvenan accepted that she had behaved inappropriately.
12. It is difficult in these circumstances for a litigant in the position of Mrs Moyo, who passionately believes that her version of events is the correct one, to accept that the Tribunal may take a different view (and sometimes is bound to take a different view) on a material aspect of the case, if the evidence so requires it to do.
13. Mrs Moyo does not help her case by making extreme remarks about the Tribunal and the attitude of the Tribunal. A fair reading of the Tribunal's reasons in my view demonstrates a conscientious attempt to grapple with the issues, even if one particular mistake was made.
14. Another incident about which Mrs Moyo plainly feels very concerned is the suggestion that she was effectively forcibly sent home and subsequently recorded as being sent home for being ill when she was nothing of the kind. The Tribunal deals with this at some length in its investigation of the allegation. I have been shown statements made by witnesses called on Mrs Moyo's behalf to the Tribunal which she says corroborate her view rather than the views of others. Once again, the Tribunal had the task of listening to the witnesses and forming its own assessment, and on any view on this incident it seems to me that there is a fine line between Mrs Moyo being upset and expressing a wish to go home, which she did, with the suggestion of others that she may have been unwell. I see nothing in that incident to interfere with the Tribunal's conclusion that this was not less favourable treatment.
15. I could spend time looking at the other incidents, although I do not think that it would in the event prove profitable, because one would be forced to the same conclusion, namely that there was material upon which the Tribunal could reach its conclusion. It has done so. Certainly it is not the function of this court to re-examine issues of fact. I repeat the difficulty in which in my view Mrs Moyo finds herself on this part of the case. It is that the Tribunal, in all but one instance, has found that she has not been less favourably treated, and where there is a finding that there was a difference of treatment and a difference in race, an explanation was put forward by the employer which was accepted. Where there is a clear finding of no less favourable treatment, there cannot be any question of deciding whether or not any less favourable treatment was motivated on racial grounds. The case falls at the first hurdle. Where the Employment Tribunal finds that there was a difference in treatment and a difference in race, which is item 5 in Judge Clark's analysis, he directs himself in relation to the judgment of Nicholls LJ in King, by looking at the employer's explanation and asking itself if that explanation was satisfactory. Having found that it was, he gave reasons for the explanation. In those circumstances the Tribunal does not get to the stage of having to draw an inference or to decide conscious or unconscious motivation. I find myself in complete agreement with Judge Clark, in that I am unable to see any error of law within the framework of the question posed in the order following the preliminary hearing, and the directions which the Tribunal gave itself in law on this part of the claim. Mrs Moyo will have the opportunity, when she returns to a different tribunal, to argue her claim on victimisation, but in relation to direct discrimination under section 1(1(a), I am satisfied that no point of law arises from the Tribunal's decision and therefore any appeal against that part of the decision would have no reasonable prospect of success. The application is refused. I will direct a transcript at public expense.

Order: Application refused; applicant to be provided with approved judgment at public expense.