United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1220_95_1505

Appeal No. EAT/1220/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 15 May 1996

THE HONOURABLE MR JUSTICE BUTTERFIELD

MR L D COWAN

MRS P TURNER OBE

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KIRKLEES METROPOLITAN COUNCIL          APPELLANTS

MRS K HUTTON          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR KHALID BUTT

(Solicitor)

The Legal Services

Kirklees Metropolitan Council

2nd Floor

Civic Centre III

Huddersfield

West Yorkshire

HD1 2TE

For the Respondent NO APPEARANCE OR

REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT


 


MR JUSTICE BUTTERFIELD: This is an appeal against a decision of the Industrial Tribunal sitting at Leeds promulgated to the parties on 3 October 1995 in respect of complaints made by Kathleen Hutton, the Respondent, that the Appellants and certain employees of the Appellants had racially discriminated against her.

The Respondent does not appear before us in this appeal, having informed the Tribunal that she does not propose to attend or to be represented. The Appellants have been represented by Mr Butt.

The factual background is complex and detailed. We summarise the relevant facts for the purposes of this appeal shortly. The Respondent has been employed by the Appellants for many years. Since 1991 she had been Officer-in-Charge at Moorlands Grange, a residential home for the elderly, operated and managed by the Appellants. The Respondent is African Caribbean in origin.

In April 1993 a "new broom" arrived at the Appellants' Home. Miss Mona Jensen was appointed as Officer-in-Charge and thus became the Respondent's supervisor. Within weeks of her appointment Miss Jensen decided that Moorlands Grange was not being run to the high standards she required and expected. She had criticisms of the staff generally and was particularly concerned by what she perceived as the Respondent's lack of ability in certain important respects.

Miss Jensen started to keep an informal record of the Respondent's conduct. Those records were later translated into a formal report on the Respondent, her work and her capabilities in late 1993. The report spanned incidents which allegedly occurred between April 1993 to December 1993 and was detailed and specific in its content.

The Industrial Tribunal painstakingly considered whether the incidents did in fact occur. In each case the Tribunal found that Miss Jensen's concerns about the Respondent's abilities were justified. The Respondent complained to the Industrial Tribunal that the Appellants had racially discriminated against her in respect of the report, both in the way it was prepared and its content.

There were two other senior staff at Moorlands Grange; Brenda Smith, who was Deputy Officer-in-Charge and Celia Rose, an Assistant Officer-in-Charge. Both were white. Miss Jensen had some criticism of their performance as employees, but did not compile a detailed written report on their competence. In evidence Miss Jensen accepted that she had treated the Respondent differently from the way she had treated other white staff in this respect.

The Industrial Tribunal, while accepting there was discrimination, concluded that the explanation for the difference in treatment put forward by the Appellants was adequate and satisfactory. The Tribunal further found as a fact that the Respondent did act in the manner alleged by Miss Jensen. It concluded that neither the preparation nor the content of the report was affected or motivated by any form of racial discrimination. Accordingly, the first complaint made by the Respondent was dismissed.

We return to the narrative. After the report had been prepared the Appellants decided to instigate Capability Procedures to determine what improvements in the Respondent's work were necessary and what level of support she required in order to achieve those improvements.

On 24 January 1994 a meeting attended by the Respondent, the Respondent's Union representative and members of the Appellants' management team, took place. The meeting lasted all day and spent much of its time considering the incidents which had formed the subject of the report on the Respondent. The Respondent was given proper opportunity to comment on the allegations made against her. The meeting adjourned to 28 January 1994. At that meeting the Respondent asked for, and was granted, a further adjournment. The interested parties reconvened on 10 March. By that time the Respondent was represented by Ms Rowlands of the Bradford Race Equality Council.

At an early stage of this meeting Ms Rowlands alleged that the Respondent had been the victim of racial discrimination. The meeting closed shortly thereafter with the capability procedure not concluded.

In mid-April 1994 a complaint was lodged by the Respondent under the Appellants' grievance procedure. The complaint concerned Miss Jensen's report. The Respondent alleged that Miss Jensen's actions in the manner in which she brought the allegations and the nature of those allegations were discrimination on racial grounds. She detailed seven specific areas of complaint.

The Appellants, who have detailed procedures in place to deal with such complaints, instructed a Unit Manager and their Equal Opportunities Officer, to investigate the grievance. In the course of their investigations the investigating team saw the Respondent, Miss Jensen, the Appellants' Personnel Officer and a superior of Miss Jensen's. They did not speak to any other staff who were working at Moorlands Grange at the material time.

The explanation of the investigation team for their failure so to do was because they were concerned about having a detrimental effect on working relationships at the Respondent's Unit and in any event, did not have a need to do so.

The investigation was completed after about a month and its conclusions embodied in a report dated 15 July 1994. The investigating officers found no evidence of discrimination on racial grounds. That conclusion was accepted by the Chief Social Services Officer, Mr Hughes and the Respondent's complaint of racial discrimination was rejected.

That sequence of events produced two further complaints to the Industrial Tribunal. First, the Respondent alleged she was racially discriminated against by being placed upon the Appellants' Capability Procedure. She was plainly treated less favourably than other employees by this requirement. The Appellants' explanation for requiring the Respondent to be the subject of the Capability Procedure was that they believed the contents of Miss Jensen's report. The Industrial Tribunal found that to be an entirely adequate and satisfactory explanation and declined to draw any inference that the Appellants' conduct was racially motivated. The Industrial Tribunal dismissed this complaint.

It might be thought that in so holding, the Industrial Tribunal had entirely vindicated the Appellants, but not so. There was one final allegation which related to the investigation of the Respondent's own internal complaint. The Respondent alleged that the grievance procedure itself was not conducted in a fair and proper manner in that it did not take into consideration the necessary evidence upon which her complaint of racial discrimination was based; that this failure was less favourable treatment and that the basis of the less favourable treatment was her racial origin.

The Industrial Tribunal concluded that the explanation advanced by the investigating team for their failure to interview white staff working at the Respondent's Unit was inadequate and unsatisfactory.

In the judgment of the Industrial Tribunal three of the seven specific complaints could not be properly investigated without interviewing other persons involved in the incidents giving rise to Miss Jensen's report.

The Tribunal further found as a fact that, if a white employee had made a complaint of equal seriousness and importance, the white members of staff concerned would have been interviewed by the investigating team. The Industrial Tribunal expressed its conclusions on this aspect of the claim as follows. Paragraph 67:

"Accordingly, in respect of three of the seven complaints, we take the view that no employer could honestly have concluded that these complaints could properly have been investigated without seeing the other persons involved. The first and second respondents' explanation for that is there was no need to see the other parties. We cannot accept that that was an adequate or satisfactory explanation because it is based on alleged sensitivity and confidentiality, on which the applicant's views were never sought. The officers themselves recognised the problem when they prepared the second report. In those circumstances we are entitled to and do draw the inference that the difference of treatment was on racial grounds. Accordingly we find for the applicant on that aspect of her complaint to this Tribunal, in respect of those three heads of complaint only."

The Respondent was later awarded compensation of £1,000 in respect of the proved unlawful racial discrimination, that compensation being assessed to compensate her for her hurt feelings.

The Appellants now appeal against that finding. The first ground of appeal is that the conclusions of the Industrial Tribunal are perverse in the light of other findings they made. In effect, the Appellants submit, the Industrial Tribunal could not conclude that the grievance procedure was unfair and racially discriminatory, having already found that the preparation of the report and its contents were not discriminatory.

We reject that submission. These were two separate and discreet issues before the Industrial Tribunal. First, whether the Appellants had discriminated against the Respondent in the preparation and content of Miss Jensen's report and second, whether the Appellants had discriminated against the Respondent in investigating her complaints relating to that report. They were entitled, as a matter of law, to reach conclusions adverse to the Respondent on the first issue and adverse to the Appellants on the second issue. No perversity is shown and no error of law disclosed.

However, in what is in effect an extension to that first submission, the Appellants submit to find as it did, the Industrial Tribunal had not only to conclude that the procedure was unfair and discriminatory, but that the Respondent suffered a detriment flowing from the discriminatory conduct. If, submits the Appellants, there was no causative link between the unfair investigation and the finding that Miss Jensen's report was not discriminatory, the Respondent may well not be entitled to compensation.

The Tribunal had of course, to apply the appropriate statutory requirements. By Section 1(1)(a) of The Race Relations Act 1976, it is provided that:

"(1) A person discriminates against another if 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; ..."

On the findings of the Tribunal, to which we have referred, they concluded that the Appellants had treated this Respondent less favourably on racial grounds. Having reached that finding, the Tribunal then had to consider whether the discriminatory treatment was unlawful. To determine that issue they were required to address themselves to Section 4 of the 1976 Act, which provides, so far as it is material as follows:

"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 -

(c) by dismissing him, or subjecting him to any other detriment."

Whilst the Tribunal identified the relevant statutory framework against which they had to approach their consideration of the Respondent's complaints, the Tribunal did not express itself in relation to this issue when it came to make its final findings. In the paragraph to which I have already referred, in its extended reasons, it plainly addressed the questions asked by the Act under Section 1(1)(a). Equally plainly, it did not address at all, either expressly or by implication the important and, indeed, vital requirement that the Respondent should have been subjected to "any other detriment".

It may be that the Tribunal found itself so overwhelmed by the detail, which it considered, according to its own decision over a period of no less than two days, having heard evidence occupying about six days, that it simply overlooked this important and vital consideration.

It is a temptation for us to conclude that the Appellants, having been found not to have discriminated against the Respondent in the preparation and the content of Miss Jensen's report, the Tribunal would, had they directed their minds to the issue, have concluded that a fair internal investigation would have led to the same conclusion that the Industrial Tribunal reached, or even if they were unable to reach any conclusion on that issue, that the Respondent in reality suffered no detriment here, within the meaning of Section 4, as interpreted by the courts in decisions to which we have been referred. However, we resist that temptation and, indeed, Mr Butt has not encouraged us to take that course.

The Tribunal, having failed to address the vital issue in this case, we have in our judgment no alternative but to remit the matter to the Industrial Tribunal for them to determine whether the Respondent did suffer a detriment within the meaning of Section 4 of the 1976 Act and if she did, what that detriment was.

To that extent and for those reasons, this appeal is allowed.

We have considered the question of what Tribunal should determine the matter. Bearing in mind the length of their deliberations already, it is entirely appropriate that the same Tribunal should determine this matter in due course.