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Cite as: [1993] UKEAT 592_92_1701

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BAILII case number: [1993] UKEAT 592_92_1701

Appeal No. EAT/592/92

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 17th January 1993

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR P DAWSON OBE

MR K HACK JP

CAMBRIDGESHIRE COUNTY COUNCIL APPELLANTS

MRS L L BARNES RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

APPEARANCES

For the Appellants MR J BOWERS

(Of Counsel)

The Solicitor

Cambridgeshire County Council

Shire Hall

Castle Hill

Cambridge

CB3 OAP

For the Respondent MR A GUMBITI-ZIMUTO

(Of Counsel)

Messrs Johns & Saggars

193-195 Kentish Town Road

London

NW5 2JU

MR JUSTICE MUMMERY (PRESIDENT): This is an appeal against the decision of the Industrial Tribunal sitting at Bedford on the 11th, 12th June and 22nd, 28th July 1992.

The Tribunal, for Reasons notified to the parties on the 4th August 1992, unanimously decided that a complaint made by Mrs Lucy Barnes against the Cambridgeshire County Council under the Race Relations Act 1976 was well founded. The Tribunal declared that Mrs Barnes had the right to have her complaint of racial discrimination investigated by the Council and ordered the Council to pay to Mrs Barnes, as compensation for injured feelings, the sum of £1,500.

The Council were dissatisfied with the decision and gave Notice of Appeal on the 27th August 1992. The Notice of Appeal sets out numerous grounds. Only three points have been pursued by Mr Bowers on behalf of the Council.

The first was that the Industrial Tribunal failed to make necessary findings of mixed fact and law for the determination of the complaint of racial discrimination under Section 1(1)(a) of the Act and had therefore misdirected itself on the requirements of the Section.

Secondly, the Tribunal failed to give full reasons for its decision so that the Council did not know why it had lost the case.

Thirdly, the Tribunal revealed that it had misdirected itself in law by reversing the burden of proof in a complaint of racial discrimination.

The validity of these grounds must be tested first in the light of the facts on which the complaint was made, then by reference to the relevant legal provisions and finally by reference to the reasoning of the Tribunal.

The factual background to the case is that Mrs Barnes, a West Indian, was employed by Eastern Staff Services who supplied Mrs Barnes' services to the Council as a contract worker between August 1990 and the 22nd May 1991. Mrs Barnes served as a catering assistant at the Parkside Community College in Cambridge. There was no trouble in relation to Mrs Barnes' services while she was under the supervision of Mrs Wenham. Mrs Wenham left her position in April 1991 and was replaced by Mrs Dann. There then followed, in April and May 1991, a series of incidents which the Tribunal described in paragraph 14 of its decision as having:

"the cumulative effect of upsetting Mrs Barnes and leading her to believe that she was being racially harassed."

It is unnecessary to go into the details of the incidents. There were six altogether. One concerned the turning off of heating and the removal from Mrs Barnes' back of a towel which she had put round herself to keep herself warm. A second incident involved the order in which food had been served by Mrs Dann. The third was the treatment of Mrs Barnes in relation to the wearing of flat shoes at work. Another incident in which Mrs Barnes felt that she was being racially harassed was when she was laughed at for operating a frier with no oil in it. She complained of not being allowed to buy cakes and other food which had not been eaten for her family. A final incident occurred on the 22nd May where Mrs Barnes placed certain items on a trolley, which she was going to take to the refrigerator. One of the other workers started placing water jugs on the trolley. Mrs Barnes objected but the other worker, and an assistant, proceeded to remove Mrs Barnes' items from the trolley without explanation. The incident involved Mrs Dann, Mrs Freestone and Mrs Brand.

The last incident sparked off a letter written on the same day, 22nd May 1991, by Mrs Barnes' husband to the Director of the Cambridgeshire Catering Services at the Shire Hall Cambridge. The letter was copied to Eastern Staff Agencies, as they are described there, and also to a Mr Carrington at the Commission for Racial Equality. The letter said:

"I am writing to you on behalf of my wife, Laura Barnes, who had been employed since August 1990 at the Parkside Community College, through Eastern Staff Services of Sidney Street, Cambridge.

I must inform you that she will not be able to come to work tomorrow, Thursday 23rd May 1991, due entirely to the way she (has) been treated today and over the past few weeks, by the supervisory and other staff of your catering facility at this college.

This letter is written without prejudice to my wife's full statutory rights to seek recompense for any damages incurred."

The Council did not reply to that letter. We are told that a questionnaire was sent to the Council by the Commission for Racial Equality and was completed.

On the 20th August 1991 Mrs Barnes presented to the Industrial Tribunal a complaint of racial discrimination. In her complaint she set out her position as a catering assistant at Parkside Community College and the fact that she was actually an employee of Eastern Staff Services with details of the difficulties she encountered in the College from April 1991 onwards.

Her statement lists, in detail, the various complaints summarised. She gives an account of how she informed her husband on the `phone of the incident of the 22nd May which led to the writing of the letter. She says:

"on 22nd May 1991 I was subjected to such unfairness and verbal abuse that I have had no alternative but to cease my employment and make this complaint.

I have applied to the CRE for assistance. Please copy all correspondence about my case including a copy of my IT1 to them at the following address:"

The complaint in this case investigated by the Industrial Tribunal was solely in relation to racial discrimination. They did not investigate any complaint of unfair dismissal or constructive dismissal. No matters relevant to that arise for decision before the Industrial Tribunal or before this Tribunal.

The Council put in a Notice of Appearance, in which it was made clear that Mrs Barnes was not an employee of the Council but worked on contract under the arrangements referred to in the Notice of Appearance. The Council stated that it resisted the claim that she had been discriminated against on racial grounds while accepting that there were difficulties and conflicts between Mrs Barnes and other members of the staff employed at the school. The Council stated:

"It is denied that there was any act of racial discrimination by any of those involved, or that discrimination can be inferred from the incidents reported by Mrs Barnes."

Neither the Notice of Application nor the Notice of Appearance deal expressly with any issue of racial discrimination arising from the failure of the Council to investigate the complaint, if it be a complaint, made in the letter of the 22nd May by Mrs Barnes.

It is common ground that there was no answer to that letter by the Council and that there has been no investigation of the complaint by the Council.

The Tribunal, in its Full Reasons, correctly stated that Mrs Barnes' complaint was brought under the Race Relations Act 1976. They referred to two provisions Section 1(1)(a) which provides:

"A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if -

(a)on racial grounds he treats that other less favourably than he treats or would treat other persons"

It is necessary to refer to Section 3(4) which reads:

"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."

Section 7(2)(d) provides:

"It is unlawful for the principal, in relation to work to which this section applies, to discriminate against a contract worker -

(d)by subjecting him to any other detriment."

A "contract worker" is defined in Section 7(1) in the following terms:

"This section applies to any work for a person (`the principal') which is available for doing by individuals (`contract workers') who are employed not by the principal himself but by another person, who supplies them under a contract made with the principal."

That provision makes it clear that, as a contract worker, Mrs Barnes was entitled not to be discriminated against.

Finally, Section 54 confers jurisdiction on industrial tribunals to hear complaints:

"that another person (`the respondent')

(a)has committed an act of discrimination against the complainant which is unlawful by virtue of Part II" of the Act.

Such a complaint may be presented to an industrial tribunal.

In addition to those statutory provisions we have been referred to a number of authorities. Mr Bowers referred us to a short passage in the case of Seide v. Gillette Industries Ltd [1980] IRLR 427. In paragraphs 28-30 it emerges as a crucial factor in race discrimination that the question to be asked is whether the activating cause of what happens is that the employer has treated a person less favourably than others on racial grounds. The tribunal asks itself the question: what was the effective or activating cause for the steps which were taken by the employers? That passage makes clear what is quite clear from the wording of the relevant Sections.

We were also referred to a short passage in a sex discrimination case Balgobin v. Tower Hamlets London Borough Council [1987] ICR 829 at 834-836, for the general proposition that in relation to a discrimination case, whether it is on grounds of sex or on grounds of race, it is necessary to look at the treatment and not at the consequences of the treatment. An objective test is applied to determine whether treatment of the kind which is made unlawful by the legislation has been inflicted on the complainant by the Respondent. That proposition is relevant in view of the remarks of the Tribunal that the cumulative effect of the incidents upset Mrs Barnes and led her to believe that she was being racially harassed. It is common ground that upsetting Mrs Barnes and her subjective belief that she was being discriminated against on racial grounds would not by itself constitute racial discrimination. It is necessary for some form of treatment to be identified as being given on racial grounds.

Mr Zimuto, who has presented Mrs Barnes' case with great ability, referred us to two passages in recent decisions of the Court of Appeal. They usefully summarise the relevant principles which should guide a tribunal in a race discrimination case. He referred to North West Thames Regional Health Authority v. Noone [1988] ICR 813 at p.822 C-G and to the later case of King v. Great Britain China Centre [1992] ICR 516 at p.528E to p.529C. It is only necessary for me to read the summary from the later report for the main principles. Lord Justice Neill, said:

"From these several authorities [which he has identified] it is possible, I think, to extract the following principles and guidance. (1) It is for the applicant who complains of racial discrimination to make out his or her case. Thus if the applicant does not prove the case on the balance of probabilities he or she will fail. (2) It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers will be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely based on an assumption that `he or she would not have fitted in.' (3) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 65(2)(b) of the Act of 1976 from an evasive or equivocal reply to a questionnaire. (4) Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds. This is not a matter of law but, as May LJ put it in North West Thames Regional Health Authority v. Noone [1988] ICR 813, 822, `almost commonsense.' (5) It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind both the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case."

Applying that summary of the principles to this case and bearing in mind the provisions of the 1976 Race Relations Act we have come to the conclusion that Mr Bowers' submissions, on behalf of the Council, are correct.

The Tribunal misdirected itself in law in failing to address itself to the test of racial discrimination set out in the relevant provisions of the 1976 Act and in failing to follow the guidance summarised by Neill LJ. The fact that the Tribunal fell into error is apparent from crucial parts of its decision. In the first part of its decision the Tribunal, after referring to Mrs Barnes' status as a contract worker and to Sections 1 and 7 of the 1976 Act, set out the evidence in relation to the various incidents which are mentioned in the Originating Application.

The Tribunal referred, in paragraph 13, to the letter sent by Mr Barnes on the 22nd May 1991. In setting out the various incidents the Tribunal failed to express any view or make any finding as to whether or not there had been racial discrimination. The Tribunal said in a crucial paragraph of its decision, paragraph 14:

"We are satisfied on the evidence that there was a series of incidents which had the cumulative effect of upsetting Mrs Barnes and leading her to believe that she was being racially harassed. It was clear from the evidence that the last incident, on the 22 May, was particularly distressing for Mrs Barnes. We accept that she thought she was being called `a black liar', since she mentioned this to Mrs Roden on the telephone at the time (as Mrs Roden recorded in a contemporaneous note). However, in view of Mrs Dann's and Mrs Freestone's denials, there must be substantial doubt as to whether the word `black' was used. There is no doubt that the word `liar' was used, as Mrs Dann accepted. However, we agree with Mr Zimuto that it does not greatly matter whether the word `black' was used on this occasion. There has been no suggestion Mrs Dann habitually made racist remarks, either abusively or otherwise. What is more important is the effect of the incidents complained about prior to that stage."

It can be seen that the Tribunal made no finding of fact in relation to the incident where the allegedly abusive words were used. It had made no findings of fact as to whether any of the incidents considered by them amounted to racial discrimination, even the incident on the 22nd May. The Tribunal went on:

"The essence of Mrs Barnes' complaint, in our view, lies in the respondents' failure to investigate the incident after her husband had written to complain. Mr Gillot contended [Mr Gillott represented the Council at the hearing] that it was not entirely clear that from Mr Barnes' letter that he was complaining of racial discrimination. However, in our view, the respondents must have known perfectly well what the complaint was concerned with and should have appreciated its racial overtones. In the note of the telephone conversation, between herself and Mrs Barnes, Mrs Roden expressly refers to her having communicated to Mrs Green, as Mrs Green accepts she did. Mrs Green accepted that she also spoke to Mrs Dann on the matter.

16.Mr Gillott accepted that, in the respondents' leaflets concerned with equal opportunities, the rights of contract workers are not recognised. Indeed, Mr Gillott said that until he received Mrs Barnes' IT1 he was not aware that Section 7 of the Race Relations Act 1976 existed. Mrs Green, too, said that she was unaware that contract workers were protected by the Race Relations Act.

17.We do not accept that ignorance of the contract workers' rights under the Race Relations Act is necessarily the whole explanation for the respondents' failure to investigate Mr Barnes' complaint. Even if it is however, it does not, of course, excuse the respondents.

18.Accordingly, we are satisfied that Mrs Barnes' complaint to the tribunal under Section 54 of the Race Relations Act that her complaint to the respondents about the incidents referred to above was not investigated is well-founded. We are satisfied that this failure was detrimental to Mrs Barnes and constituted discrimination on racial grounds within the meaning of the Act."

That is the substance of the decision.

It is clear to us, from reading paragraphs 14-18 inclusive, that the Tribunal failed, first, to make necessary findings of fact for the determination of the question which arose under Section 1(1)(a) of the Act and, secondly, misdirected itself in relation to the relevant legal principles.

What the Tribunal seem to have done is this. First, it recorded the evidence of the incidents complained of but failed to make any finding as to whether there was racial discrimination in relation to any of them. It seems to have ducked this important issue for a reason mentioned in the last sentence of paragraph 19 when it said:

"In the circumstances, we can see no purpose in allotting blame to any of the individual workers involved in the incidents of which Mrs Barnes complains."

In fact, the very purpose for which it was sitting hearing this complaint, was to decide whether or not there was racial discrimination in relation to those incidents. If that involved allotting blame to individual workers that is something which, as the fact finding Tribunal, it was bound to do. Without any finding of racial discrimination in relation to any of those incidents, the Tribunal then proceeded at the second stage, to describe the essence of the complaint as a failure to investigate the incident.

The Tribunal rightly took the view that two of the points taken by the Council on the letter had nothing in them. The first point taken by the Council, and pursued on this appeal, was that the letter of the 22nd May was not a complaint to be investigated under the Act. It is clear to us that a complaint was being made by Mr Barnes on behalf of his wife. It is clear that it was a complaint in relation to race discrimination, otherwise there was no point in the letter being copied to the CRE. If the Council were not clear as to what the nature of the complaint was, the remedy was in their hands, that is by asking "what are you complaining about" in respect of what matters.

The second point taken by the Council was that the reason that the complaint was not investigated is that the Council officials in question were unaware that Section 7 of the 1976 Act gave protection to contract workers. The Tribunal rightly held that that was not an excuse for failing to investigate. The Tribunal went on to hold that it was not necessarily the whole explanation for the failure to investigate the complaint. That is true, as far as it goes. What the Tribunal then seems to have done at this stage of its reasoning, was to infer from the fact that it did not accept the contract workers' point as excusing the Council from an investigation, and from that alone that there had been racial discrimination. This is not the correct way in which to apply the statutory provisions or principles summarised by Neill LJ in the King case. As is emphasised in the relevant passage in that case what has to be done to make a finding of discrimination and a finding of a difference in race. In the absence of a satisfactory explanation, the Tribunal may then infer discrimination on racial grounds. What the Tribunal has failed to do in this case was to make findings of primary facts from which an inference of racial discrimination could be drawn. It failed to make findings of primary facts in relation to the separate incidents. They have also failed to make findings of primary fact relevant to the complaint of failure to investigate.

For those reasons we find that the appeal should be allowed. We accept the arguments advanced by the Council. We accept Mr Bowers' criticism that this Tribunal failed to consider whether Mrs Barnes had different treatment from how a particular person was treated or a hypothetical person would have been treated on the grounds of race rather than for some other reason. We accept, for the reasons explained, his criticism that the Tribunal failed to make the necessary findings of fact about the incidents complained of and whether the activating or effective cause for action was on racial grounds. The Tribunal failed, in addressing itself to the question of non-investigation of the complaint, to direct itself to the primary facts from which it could make the inference it did.

The overall effect of what the Tribunal did was to reverse the burden of proof. The burden was at all times on Mrs Barnes to prove discrimination. The way in which the Tribunal approached the matter had the effect of putting the burden on the Council to prove that there had been no racial discrimination.

Mr Zimuto, in his arguments, referred us to the relevant legal authorities cited. The essence of his argument was the unsatisfactory explanation which the Council had given for its failure to investigate. He accepted, quite properly, that the Industrial Tribunal had not really addressed itself to the issue of racial discrimination in relation to any of those incidents. It had concentrated on the failure to investigate and had inferred, from the unsatisfactory explanation in relation to contract workers, that there had been racial discrimination. Mr Zimuto said in his submissions:

"the tribunal decision states that the tribunal do not accept that ignorance of the law was the sole reason for the failure of the employers to investigate"

He submitted that if the Industrial Tribunal rejected that suggestion, then what else could be the reason for failure to investigate other than racial discrimination.

For reasons referred to that is not a correct way of arguing from the facts which had been found, such as they were.

We are, therefore, are unable to uphold this decision. The appeal must be allowed on the grounds mentioned. The question that arises is to what order the Tribunal should make in allowing the appeal. The first possibility is that the appeal is allowed and the complaint is dismissed; the second is that the appeal is allowed and the matter is referred back to the same Tribunal to reconsider the evidence, make primary findings of fact in relation to the relevant questions of racial discrimination and then state its conclusions; the third is to remit the matter to a different tribunal. We have heard argument Mr Zimuto, on behalf of Mrs Barnes, submitted that the matter should be referred back to the same Tribunal. This is a natural wish on behalf of Mrs Barnes. The hearing before the first Tribunal took four days; it heard eight witnesses. The prospect of a further lengthy hearing from the beginning before a new tribunal is a daunting one.

Mr Bowers, on behalf of the Council, opposed the matter going back to the same Tribunal. He said that this Tribunal should itself simply dismiss the complaint made by Mrs Barnes or, if it does not do that, it should go back to a different tribunal.

We have given this matter anxious consideration. We are particularly concerned about the time and expense that has already been spent on this matter. We express our agreement with the comment which the Tribunal made in paragraph 19 of its decision, in the second sentence:

"if there had been a proper investigation into the incidents, as there should have been, there is every reason to believe that matters would have been amicably settled."

We hope that that is borne in mind by the parties in the future conduct of this dispute.

Having considered the three possible ways of dealing with this, we have come to the conclusion that the safe course to follow is to send this matter back to a differently constituted tribunal. If Mrs Barnes' complaint is to be pursued before that tribunal it will unfortunately be necessary for the matter to be considered afresh.

We make an order allowing the appeal and remitting Mrs Barnes' complaint to a different tribunal.