United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1221_95_1605

Appeal No. EAT/1221/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 16th May 1996

THE HONOURABLE MR JUSTICE BUTTERFIELD

MR A E R MANNERS

MRS T A MARSLAND

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KIRKLEES METROPOLITAN COUNCIL          APPELLANTS

MRS G SENIOR          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 2TG

For the Respondent MR COURTNEY HAY

(Community Worker)

Northern Complainants

Aid Fund

Checkpoint

Bradford

BD1 2TH


 


MR JUSTICE BUTTERFIELD: This appeal raises yet again questions relating to the approach which should be followed by the Industrial Tribunal when considering the application of Section 1(1)(a) of the Race Relations Act 1976.

The respondent, Gloria Senior, is employed by the appellant Council as a social worker. She is of Afro-Caribbean origin. At the material time she worked in the Dewsbury Community Care Team. Her immediate superior was Mr Lines.

On 12th April 1994 the respondent should have attended court in her professional capacity. She failed to do so because she was unhappy about the way in which the case concerned was being handled in her department. Mr Lines told the respondent he would be taking disciplinary action against her. The respondent thereupon herself lodged a formal grievance complaint against Mr Lines.

The appellants began an investigation into the respondent's grievances. Over the following months the atmosphere between Mr Lines and the respondent remained tense. In late July 1994 Mr Pearson, the unit manager and immediate superior of Mr Lines went on holiday. On his return in mid-August he received complaints from two members of staff about the respondent's attitude during his absence. He spoke to the respondent and asked her to stay at home pending the outcome of the grievance process. He was concerned about the fresh complaints, the effect of the respondent's conduct on the team with which she worked, and the continuing friction between the respondent and Mr Lines. He considered there was a high risk of serious disagreement if the respondent remained at work. No doubt he hoped that once the respondent's complaints had been determined, the general situation would improve.

The respondent refused and returned to work as normal on 15th August 1994. On that day, according to the respondent, Mr Pearson spoke to her again saying that he would no longer mediate between her and Mr Lines. The respondent found his remarks threatening.

In September 1994 the respondent's complaints were dismissed under the internal grievance process. On 17th October 1994 the respondent was notified that she was herself required to attend a disciplinary hearing concerning the events surrounding the court case in April 1994.

By originating application dated 8th November 1994 the respondent complained to the Industrial Tribunal that she had been subjected to less favourable treatment on racial grounds by Mr Pearson on 12th August and 15th August 1994, and subjected to further unlawful discrimination by being summoned to a disciplinary hearing in October 1994. As a matter of history, the disciplinary hearing against the respondent found that the complaints were made out, and imposed a written warning.

The respondent's complaints to the Industrial Tribunal were heard by a tribunal sitting at Leeds over three days in June 1995.

In a decision promulgated on 2nd October 1995, the tribunal held that the respondent had been discriminated against by reason of her race and awarded £1,000 by way of compensation. The tribunal was highly critical of the appellants in the handling of the developing situation, and in particular the delay in dealing with the respondent's grievance and the disciplinary proceedings against her, which the tribunal stigmatised as "inexcusable".

The respondent asked for a review of the tribunal's decision relating to compensation, since the tribunal had made an award in relation to compensation having before it at that time no evidence or argument. The tribunal consented to the review, heard evidence and argument on the issue and confirmed their original findings save for an additional award of £100 by way of interest.

The appellants now appeal against the findings of the tribunal. They first assert that the tribunal did not consider at all two of the three complaints made by the respondent, namely the threatening conversation with Mr Pearson on 15th August 1994 and the summons to the disciplinary hearing in October 1994. Instead the tribunal considered whether there was discrimination in connection with the court incident in April 1994 about which the respondent had not complained at all.

Mr Hay on behalf of the respondent seeks to persuade us that the complaint originally made by the respondent should be construed as relating only to two matters and that the tribunal properly considered each. We conclude that it is at least possible that there were only two complaints, but it is surprising that the events of 15th August 1994 find no reflection at all in the tribunal's extended reasons. In any event, this matter is not in any sense determinative of the appeal. In one sense of course the appellants are better off as a result; there might have been additional findings adverse to them if the tribunal had determined all the respondent's complaints.

To succeed the appellants must show that the tribunal erred in law in its finding that the respondent was discriminated against by reason of race in respect of the occasion in August 1994 when she was asked to stay at home. The tribunal reminded itself of the ratio of the well-known case of King v Great Britain China Centre [1991] IRLR 513 and expressed its conclusions on this issue as follows:

"17 ... We find that the Applicant was discriminated against in August ...

18 We must therefore look to the Council for an adequate explanation of their unprecedented proposal that she stay at home, ... We find that no adequate explanations has been given for their proposal and consider that this raises an inference of racial discrimination. ... Mr Pearson was well aware that the Applicant was the only one of her race in the department and obviously acutely conscious of this."

Mr Butt, on behalf of the appellants seeks to attack this finding in a number of respects. First, he says the decision is flawed in that it does not resolve the conflict between the respondent and Mr Pearson, as to whether the respondent had previously requested to be allowed to work from home. At the Industrial Tribunal it was argued that this was one of the factors influencing Mr Pearson to make the request that the respondent work from home. Whilst Mr Butt initially sought to abandon that ground, in the light of certain submissions he made in reply, we consider it appropriate to deal with it.

We do so by rejecting it. The plain terms of Mr Pearson's letter were not that the respondent should work from home, but that she should stay at home. That was the finding of fact by the tribunal, there was plainly evidence which entitled the tribunal so to find, and by inference it rejected Mr Pearson's account to the contrary.

An additional ground of appeal now abandoned was that in reciting the history of the matter the tribunal referred to an argument between the respondent and an employee named Lynne White, whereas the argument was with another employee. It is a ground which is rightly abandoned, it was an error of no consequence to the decision reached and does not disclose an error of law.

Finally and centrally, the appellants submit that the tribunal fell into error in its application of the statutory provisions of the Race Relations Act. The tribunal must first consider whether the employer has committed an act of discrimination as defined and then, but only then, consider whether that act of discrimination is rendered unlawful by any provision of the Act.

Direct discrimination is treating a person on racial grounds less favourably than the employer treated or would treat others. Racial discrimination is thus differential treatment. The tribunal must first find that there was less favourable treatment of the respondent when her treatment is compared to other employees not of Afro-Caribbean origin in the same or not materially different circumstances.

In our judgment, the relevant circumstances here were an employee who had instituted a grievance procedure against her immediate superior which had by that act caused tension and conflict at work and a high risk of consequential serious disagreement.

In its extended reasons, the tribunal did not either identify the question of law it was required to address, or make any finding of fact save to say that the request to the respondent was "unprecedented" and "somewhat surprising". As the courts have often reiterated, extended reasons should show expressly or by clear implication what were the questions to which the tribunal addressed its mind, and why it reached the conclusions it did so that both parties will know that the tribunal has made no error of law.

Here, no comparator is identified against which to judge the treatment of the respondent, and no relevant circumstances are identified. All the parties are told is that the tribunal found that the respondent was discriminated against in August 1994. The basis of that finding is completely absent.

Mr Hay on behalf of the respondent in succinct and well formulated submissions has sought to persuade us that from the single word `unprecedented' we should draw the inference that the tribunal correctly identified the question of law it had to answer on this issue formulated the proper test and answered it. We find ourselves unable to accept that submission, elegantly and effectively as it was made. In our judgment the decision is seriously flawed in its failure to reflect the matters to which we have referred.

Having found discrimination established, the tribunal was entitled to consider the appellant's explanation for the less favourable treatment, and if it found the explanation unsatisfactory to infer therefrom that the discrimination was on racial grounds. They were not obliged to draw that inference if they found, as they did, that the explanations inadequate, but they were entitled so to do. Whilst some criticism might be addressed at the language used in this aspect of the decision, that is precisely what the tribunal did here, and no error of law is thereby disclosed. However, that only established that there had been racial discrimination within the meaning of Section 1(1)(a) of the Act. To render that discrimination unlawful and thus entitle the respondent to compensation, the discrimination must subject the respondent to a detriment. Subjecting a person to detriment has been defined as putting the employee at a disadvantage so that a reasonable employee could justifiably complain about his or her working conditions or environment. In this case the respondent was not dismissed or suspended, she was asked to stay at home and she declined. Nothing further happened. It may be that this less favourable treatment is capable of amounting to a detriment, and that the tribunal might have found it to be so. Regrettably the extended reasons are wholly silent on the point.

Mr Hay again seeks to persuade us that the facts as found by the tribunal were such that no reasonable tribunal would not have found there to be detriment. We do not agree. It is a question of fact and degree which will require a tribunal to weigh very carefully a number of factors before reaching a decision on whether or not this respondent was in the particular circumstances subjected to a detriment by being asked to go home.

We make it plain that we are not holding that that conduct is not capable of amounting to a detriment. However in our judgment the tribunal did not address the point and it cannot be said that the tribunal would be bound to have concluded that there was such a detriment. Again, therefore the decision is seriously flawed by the failure to deal with the issue.

Those failures are cumulative in effect. The combination of the two failures we have identified is such as to render the decision not merely seriously deficient, but fatally flawed. It is with regret that we must allow this appeal.

We have given consideration to the appropriate consequential order and the order we make is that the respondent's complaints be remitted for rehearing by a new Industrial Tribunal.