United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR BWILTSHIRE (of Counsel) Commission for Racial Equality Elliott House 10/12 Allington Street London SW1E 5EH
For the Respondents	MR J BEGGS (of Counsel) Messrs Eversheds Solicitors Senator House 85 Queen Victoria Street London EC4V 4JL


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal against a majority decision of an Industrial Tribunal held at London (North), presided over by Mr P R K Menon sitting with two lay members. He is an experienced Chairman who has special knowledge of the workings of the Race Relations Act 1976 and the tribunal dealt with two complaints of unlawful race discrimination brought by Miss Badewa against Circle Thirty Three Housing Trust Limited.

The applicant's two complaints were summarised in the Industrial Tribunal's decision in this way. She is a black person of African racial origins. On 9th March 1993, she commenced her period of temporary employment with the respondent company as a Housing Officer at their office in Kings Cross, Central London. On 17th May 1993 they opened an area office at Cambridge, and on that day a Mr Colin Wiles was appointed its area manager, and on 18th May 1993, the applicant was persuaded by her boss to transfer to the Cambridge office as a temporary measure pending the appointment of a full time officer at Cambridge.

The respondent, Circle Thirty Three, is a large charitable housing association which operates in London and the Home Counties in particular. In November 1992 it had received funding from the Housing Corporation to buy some 800 properties in London, Luton and Cambridgeshire as part of the Housing Market Package. Around 300 of the properties were in Cambridgeshire and it was their intention to manage those properties from their Head Office in Kings Cross, until an office was fully established in Cambridge in 1993.

The tribunal note and find, that the applicant and Mr Wiles did not have an easy relationship one with another. It was the applicant's perception that he was intimidating and aggressive towards her, which was treatment which contrasted sharply, as she saw it, with his gentler and more courteous behaviour towards the other staff who were all white. She had come from a multi-ethnic working environment, she was the only ethnic minority employee at the Cambridge office.

It was her case, and complaint, that on occasions Mr Wiles shouted at and swore at her using 'four letter words', whereas he did not shout at or swear at the other members of staff who, as she thought, were all treated impeccably by Mr Wiles.

Shortly after she had moved to work at Cambridge, there was an occasion on 27th May 1993 when the applicant and Mr Wiles travelled in his car to consider a letting proposition. There were no maps of the area, she was supposed to navigate. They had difficulties in finding their way. She was criticised for not navigating properly. He swore at her. The expression used included "fucking shit" and "bloody hell". She not unnaturally did not find that a pleasant experience, to put it at its mildest.

The respondent, the employers, alleged that they were receiving various complaints and criticisms of the applicant from various tenants. The employers sought to introduce matters which were discovered after her dismissal, but the tribunal did not accept that that evidence was pertinent to that issue.

On 20th July 1993, Mr Wiles had a meeting with his line manager where he expressed concern about the applicant's performance, as he perceived it to be, but it is right to point out that he did not make the applicant aware of those concerns.

On 26th July 1993, the new permanent recruit had started her employment, Ms Marie Osborne. This was her first real job apart from gaining work experience in Leicester. The tribunal found as a fact that she, Ms Osborne, quickly formed a low opinion of the applicant's professionalism as a Housing Officer, and accordingly she spoke to Mr Wiles, who was receptive towards her complaints, indicating to her that he also had some sense of dissatisfaction about her performance. The tribunal find that:

"He indicated to Ms Osborne that as soon as she felt that she was ready to take over and cope on her own she should inform him and on her say-so, the Applicant's employment would be terminated forthwith."

As the tribunal comment:

"The Applicant's fate was therefore left in the hands of a very young employee, in her first job, who had been in the post for no more than two weeks."

On 11th August 1993, within 15 days of Ms Osborne having commenced her employment, she went to Mr Wiles and said that she could no longer work with the applicant, and in effect gave him an ultimatum that either the applicant left, or she did. As a result, Mr Wiles contacted Head Office and with their approval, he dismissed the applicant with immediate effect and she was given one weeks' pay in lieu of notice.

The tribunal's conclusion on that issue, was that the applicant was treated appallingly, and the manner of her dismissal by Mr Wiles on 11th August 1993, was far too hasty, unnecessarily humiliating and the dismissal would have been unfair had the applicant had the necessary qualifying period of two year's continuous employment with the respondent, which she did not have. She was given scant opportunity to rebut allegations about her performance.

On 27th July 1993, the applicant had applied for the permanent post of Housing Officer at the respondent's Hackney Office in response to a job advertisement. She had made no secret of the fact at the Cambridge Office, that she had made such an application. The tribunal find that the applicant was interviewed by a panel of the respondent's Senior Housing Officers for the Housing Officers post, and she was told subsequent to those interviews by one of the panel members that she had been their first unanimous first choice for the post, and that they would have recommended her appointment but for an adverse reference from Mr Cresswell, Mr Wiles's superior. Mr Cresswell's adverse reference was, as the tribunal found, wholly based on Mr Wiles's adverse reference relating to the applicant's period of employment at the Cambridge office.

The two complaints which were lodged by the applicant in this case related both to her dismissal and the way she was treated prior to it at Cambridge, and in relation to the denial to her of the opportunity of taking up the permanent position by reason of the bad reference.

The two complaints were heard together on the basis (which we have some reservations about) that in effect she either could succeed on both or on neither, and accordingly it was not sensible to draw any distinction between the two complaints.

We say that we have some reservation about that decision: not by way of criticism of the Industrial Tribunal or of anyone, but it does seem to us that it is distinctly possible that a tribunal could have concluded on the evidence that although the dismissal was for a reason related to Ms Osborne's pressure on Mr Wiles, the giving of the poor reference was motivated by race; or alternatively, a converse conclusion allowing for different conclusions on each of the two complaints. But the tribunal on the basis of what was presented to them on the parties behalf at the hearing were perfectly entitled to accede to the request that they stood or fell together.

The decision of the Industrial Tribunal on these matters can be summarised in this way. At paragraph 10 the Industrial Tribunal, having rehearsed the facts in paragraph 8, noted that it was for the applicant to prove her case of racial discrimination, on a balance of probabilities, and they directed themselves to the guidance which is given by Neill LJ in King v Great Britain - China Centre [1992] ICR 516 at page 528E to page 529C. Those are the five principles to which Mr Wiltshire on behalf of the appellant in this case had very properly drawn our attention. The tribunal also referred to the case of NWTRHA v Noone [1988] ICR 813, a decision also of the Court of Appeal. Even if the tribunal had not specifically referred to those two authorities, we would have been unpersuaded by any submission to the effect that the tribunal would not have had both those cases well in mind. As we have indicated, Mr Menon is an experienced Chairman in dealing with discrimination matters of this sort.

In paragraph 11 of their decision, the tribunal said this:

"11 After giving careful consideration to the facts as found by the Tribunal, the real issue for the Tribunal is whether the Tribunal is prepared to draw the inference that "the appalling treatment" of the Applicant by the Respondent at the Cambridge office was on racial grounds. The Applicant's case is that both Mr Wiles and Ms Osborne were racially motivated. The Respondent's case, however unattractive it may sound, is that any unfair treatment including use of swear words by Mr Wiles, did not per se amount to racial discrimination. The Respondent's case is that they did not counsel the Applicant about her alleged shortcomings because they were not obliged to do so as she was only a temporary worker. She was a useful pair of hands until such time as she could and would be replaced by a permanent employee."

Accordingly then the tribunal set about applying the principles to which their attention had been directed in paragraph 10 of their decision, and they noted in paragraph 12 as follows:

"(a) There was a difference in race. The Applicant was the sole black employee at the Cambridge office; all the other employees were white. (b) Mr Wiles, the Respondent's Cambridge manager, treated the Applicant (who is black) less favourably than he treated the other employees, who were all white. (c) The remaining issue for the Tribunal is whether the Tribunal can draw the inference that the less favourable treatment was on racial grounds. That involves the question as to whether the Tribunal is satisfied with the Respondent's explanation that the treatment of the Applicant was not based on racial grounds."

Pausing there, there can be no doubt that that was the correct question for them to deal with in the light of the guidance given in the King decision.

Paragraph 13 of the decision noted that the tribunal was divided in its views. The majority comprising the two lay members have their views set out fully and fairly in paragraph 13 of the decision:

"13 The Tribunal is divided in its decision. The lay members (Ms Smith and Mr Kelly) find no evidence of direct or indirect racial discrimination. Mr Kelly, in particular, had some reservations until he heard the evidence of Mrs Harpal Pollard, the Respondent' last witness. Nor can they draw any inference of racial discrimination from the evidence presented. They accept the Respondent's evidence that the reason for the dismissal of the Applicant was on the grounds of capability. Evidence to this effect was given by Colin Wiles, John Stott, Marie Osborne, Tracy Jarrold and Howard Cresswell - only tow of whom are accused by the Applicant as racist. This includes the contemporaneous evidence of Mr Wiles's note of his discussion with Julie Webb dated 20 July 1993. Other points the lay members wish to make are:-

(a) The lay members consider that the dismissal of the Applicant was handled badly and if this had been a case of unfair dismissal they might well have found for the Applicant. They believe that the underlying causes of this unfair treatment were:-

(i) The Respondent's practice of treating temporary staff differently from permanent employees which meant that the Applicant's perceived shortcomings were not discussed with her; and

(ii) The Applicant was dismissed too hastily in Mr Wiles's efforts to minimise problems in the office before he went on holiday the next day leaving Ms Osborne in charge of the office.

The lay members accept there was evidence of mismanagement in the Cambridge office and everyone was working under severe pressure, but cannot draw the inference on the evidence that the less favourable treatment of the Applicant was on racial grounds.

(b) The lay members find no hint of racial discrimination or racism on the part of Colin Wiles who has a very good track record of racial awareness over a long period. They were impressed how this was supported by the evidence of Leroy Richards (black) and particularly Mrs Harpal Pollard (Asian). From the evidence they find that on 27 May 1993 Mr Wiles did "explode" and use bad language, unusually for him. In the close confines of a car this would have appeared to have been addressed at the Applicant whether or not that was the intention, and this would have been most unpleasant. But they find no racial discrimination as such.

(c) Nor do the pay members find any racial discrimination or racism on the part of Marie Osborne who appeared very dedicated to racial equality. She was very upset about having to load the gun with which Mr Wiles fired the Applicant. It was most fortunate that a young employee in her first appointment should have been put in this position.

(d) As to the incident at Littleport on 16 July 1993 the lay members prefer the evidence of Tracy Jarrold rather than that of clients who would have been bewildered and out of their depth.

(e) The lay members do not find any evidence - nor can they infer - any form of racism on the part of any of the Respondent's managers responsible for the key decisions in this case. Circle 33 have a generally good record on racial discrimination policy. They have had to maintain vigorous standards on equal opportunities policies in dealing with many ethnic minority clients, including special vetting by the Commission for Racial Equality.

(f) The lay members find that implied allegation that Mr Stott, Ms Jarrold and Mr Cresswell conspired with Mr Wiles and Ms Osborne to discriminate racially against the Applicant wholly incredible.

(g) It was unfortunate but inevitable that the Applicant's dismissal at Cambridge led to her subsequent non-appointment to the permanent post at Circle 33's Hackney office.

(h) The lay members consider the evidence of Heather Johnson to be peripheral in that it does not relate in any way to Mr Wiles and Ms Osborne - the two people the Applicant directly accuses of being racially motivated."

The dissenting or minority view, namely that of Mr Menon, is again also succinctly and fully set out by him at paragraph 14 of the decision:

"14 The Chairman would unhesitatingly draw the inference, on the evidence, that the Respondent discriminated against the Applicant in respect of both complaints. As he is in the minority, he feels bound to give full details of his reasons. The Chairman finds that on the evidence the irresistible and the only inference that can be drawn is that Mr Wiles discriminated against the Applicant on racial grounds during the course of her employment with the Respondent at the Cambridge office and in respect of her dismissal during the period 18 May to 11 August 1993. He subjected her to a detriment and he dismissed her on racial grounds. The Chairman finds that both Mr Wiles and Ms Osborne were racially motivated in their actions towards the Applicant. The Applicant did not "fit into" the culture. The Cambridge office which was unable to cope with the presence of a black officer. Much was made of the previous multi-cultural experience of Mr Wiles (at Camden) and Ms Osborne (at Leicester). It has to be borne in mind that at Camden Mr Wiles was in a very multi-ethnic and multi-cultural environment and his commitment to equal opportunity would not have been put to the same test as it was in dealing with a single black officer working under him in an all-white environment at the Cambridge office and a predominantly white environment in terms of clients. Ms Osborne was well-versed in terms of the theory of multi-culturalism but short on actual experience. She did not take kindly to taking instructions from a black officer of a different background. The Chairman does not consider that her work experience at Leicester where she was on a student placement and where she would have been anxious to please everyone gave her any real understanding of real work with a black supervisor in a multi-racial setting. It was surprising that she, an employee of two weeks, with no previous work experience, should have been given the responsibility for deciding the Applicant's fate. The Applicant had hands on experience. She was a black woman, a single parent who had come up in the world through hard work and by her own efforts, ie, through the "school of hard knocks". She deserved to be treated better. She did not fit into the culture of Mr Wiles and Ms Osborne. Mr Wiles's comment to the Applicant, after her dismissal, "you have had a good run for your money", was insensitive and typical of the low esteem in which he held the Applicant as a person. He would not have made such a comment to a white employee. It is also somewhat surprising that Mr Wiles should have listened to and agreed with Ms Jarrold's criticism of the Applicant, without any question, given her status vis-a-vis the Applicant. The chairman draws the inference that had the Applicant been white, Mr Wiles would not have dismissed her in the manner in which he did. The other factors which the Chairman has taken into account are:-

(1) The Chairman was not impressed by the Respondent's criticism of the Applicant's work or her relationship with the other employers/clients at Cambridge. There was no criticism on either score while she was at King's Cross. The independent evidence at the Tribunal was to the contrary. The subsequent criticism is an attempted post facto justification of the Respondent's treatment of the Applicant. If the Applicant had been so incapable of doing the job as is alleged, she would not have been able to persuade three of the Respondent's senior housing managers at the Hackney interview that she was the best person for the job, a permanent post. The Applicant would not have lasted as long as she did at Kings Cross and Cambridge nor would Mr Stott have persuaded her to go to Cambridge had she been as incompetent as alleged. It was also relevant that the Applicant had had six years' Housing Officer experience prior to joining the Respondent and she was recruited by the Respondent through an agency which specialised in the placement of housing officers.

(2) The Chairman was very much impressed by Ms Johnson's evidence, What it showed was that, contrary to the Respondent's assertions, not all the other black employees were entirely of the view that there was no racial discrimination within the Respondent's organisation. What it also showed was that while the Respondent contended that good employment practices do not apply in the case of the Applicant, a black temporary employee, the Respondent was prepared to investigate and take action in respect of a complaint made by a white temporary employee against a black permanent employee.

(3) Mr Cresswell and the other senior managers cannot escape criticism. They should have made further enquiries. If they were as committed to equal opportunities as they professed, they should have been alive to the problems of a single black worker working in an all-white environment.

(4) The Chairman did not find Mrs Pollard to be a particularly impressive witness. Her opinion of Mr Wiles is opinion not factual evidence. As she herself accepted, she did not know the facts of the case. Her work relationship with Mr Wiles was of a different nature of that which had existed between him and the Applicant. Mrs Pollard did not work under Mr Wiles in the Cambridge office environment.

(5) Mr Richards did not work under Mr Wiles and the racial environment at Camden, as has been pointed out was very different to the situation at Cambridge. His evidence was no more than an opinion.

It was not part of the Applicant's case that Mr Wiles was racially prejudiced towards all non-white persons regardless of the circumstances. It is also a fact that Mrs Pollard is an Asian, she is not a black person in the African or Caribbean sense of "black". The Chairman is of the view, Mr Wiles was able to relate to a person such as Mrs Pollard, whose academic and training backgrounds was similar to his own than with a black person of a very different background such as the Applicant."

It seems to us that the approach that the Industrial Tribunal adopted in this matter was fully in accordance, as we have indicated with the King decision, and would simply add for future reference, that Industrial Tribunals when considering the explanation put forward by an employer in a case such as this, will not find it sufficient to use the usual judicial tool of deciding where the truth lies, that is by reference to the manner and demeanour of the witnesses. It is not possible to detect discriminatory treatment by the use of such a tool since discrimination may be subconscious or unconscious and may be found to exist even where a respectable witness convincingly denies racial motivation.

Secondly, tribunals should be wary of finding that there is no discrimination on the basis that the individual who is accused of discriminatory behaviour has not previously shown discriminatory tendencies. It seems to us that it will be a question of digging rather more than taking a superficial look at the manner and demeanour of the witnesses.

It will be apparent from the fact that the Industrial Tribunal could not agree between themselves as to the result of this case that this was a case which caused them some considerable difficulty in their appreciation of the factual material before them.

The argument before us essentially was that the majority conclusion is effectively one which can be described as perverse. The question really is was the decision of the majority a permissible option on the facts as found and the evidence that they received.

We are grateful to Mr Wiltshire for his succinct arguments which he put forward to us today. He said by way of general submission: first, that the Industrial Tribunal was far too easily satisfied as to the explanation put forward by the employers. They were too quick to accept those explanations at face value, instead of being prepared to probe beneath the surface to see if there had been race discrimination. Secondly, that the majority failed to appreciate or understand the cultural differences which may put a different complexion upon the judgment to be made of the quality of a person's performance. And thirdly, it was a case where she was essentially not given a chance on the basis that she was not 'fitting into' the team. Those are the sort of considerations which should put a tribunal on guard: as it may be a question of a black person not fitting into a white environment.

In addition to those three general points, we received sustained criticism of each of the findings relied upon by the majority. I hope that Mr Wiltshire will not think us discourteous if we do not deal with them all. There is one particular point which he made which does, in our judgment, require some elaboration. At paragraph 13(f) the lay members have presented an argument in favour of not drawing the inference that race played a part, on the basis that otherwise it would lead to a conclusion that there had been some kind of conspiracy which was wholly incredible. It seems to us that Mr Wiltshire is right to say that there is no need to point to conspiracy as an alternative explanation for the employer's behaviour in relation to a finding of discrimination, since discrimination may be subconscious and may be institutionalised. Accordingly conspiracy may be an unnecessary hurdle to place against the drawing of an inference.

It seems to us that although attractively put, and although it may well be that members of the Employment Appeal Tribunal had they heard this evidence would have come to the same conclusion as Mr Menon, we are unable to accede to the submission that the decision of the majority was not a permissible option on the material before them.

Mr Menon, we assume, has quite fairly and extensively set out the views of those with whom he disagreed, it being the Chairman's responsibility to write the decision even where he is in the minority. He has, if we may respectfully say so, written two convincing paragraphs in the decision, that is paragraphs 13 and 14. Each was a possible conclusion. He was prepared to draw the inference; the majority were not. We are unable to say that either of those two conclusions was not open on the evidence which was presented. This is a case where it was matter of close judgment as to whether there was going to be a finding of unlawful discrimination or not.

We recognise that in the majority's decision they are having to accept, as they appear to do, that the real reason for the mistreatment of the applicant was not because of her race, but because of gross management shortcomings within the respondent organisation. It seems to us to be extremely unsatisfactory that an organisation such as the respondents should treat their temporary staff in the way they did. It seems to us that temporary staff should certainly have a written contract, should certainly be treated with the courtesy and respect that all members of staff deserve, and should be spoken to about their performance if there are any criticisms to be made of it. People who are in employment are entitled to know if their work is falling below standard and are entitled to be given the opportunity of improving their quality of performance if that is within their power to do. The appellant is an experienced housing officer. We have no reason to believe that if she had been spoken to she would not quite happily have been able to meet any particular demands which were imposed upon her.

Furthermore, it seems to us that there was a gross management failure in the way in which they handled the problem of the incoming permanent post holder. If there were difficulties in the relationship between the temporary worker and the incoming permanent worker, that required management expertise. It was a problem which required to be dealt with openly rather than behind the back of the appellant. She has, as the Industrial Tribunal correctly pointed out, been shabbily dealt with. However, it seems to us that that sort of treatment does not necessitate a finding that they were also discriminating against her on the grounds of her race. The explanation for her shabby treatment may be that they were shabby employers.

We have been told that they have taken steps since that date to improve their management techniques, and we accept from Mr Beggs, who has appeared on their behalf, that that is so, and we are of course gratified to hear that.

Accordingly and not without considerable reluctance, we are driven to the conclusion that we cannot interfere with the decision of the majority in this case. As a result she had been shabbily treated in circumstances in which the law can give her no remedy, but that is something that must be addressed to Parliament rather than to us. The appeal will be dismissed.

There is an application for costs in this case in relation to the respondent's answer and cross-appeal. It arises in this way. In the answer that is filed on behalf of the respondents at paragraph 5 it is said:

"Further and alternatively, the Respondent will, if necessary, rely upon the following grounds to resist the appeal and/or to cross-appeal:

(1) the Chairman of the Tribunal (who is black) was biased against the Respondent, which bias caused him to conduct the 5-day hearing in a manner detrimental to the Respondent and which has caused him to draft the "findings of fact" at paragraph 8 of the decision in a selective manner and in a manner which omits material evidence adduced by the Respondent."

There are further paragraphs which purport to give particulars of that allegation.

In response to that complaint of bias, the Employment Appeal Tribunal having looked at the affidavit which was filed in support of it, caused the complaint to be referred to the Chairman. It follows from the wording of the complaint that it was a very serious complaint to have made against somebody carrying out a judicial function. He responded to that complaint, and the CRE who have been supporting the appeal in this case took steps to procure affidavit evidence which cast a different light on the nature of the allegations being made on the respondent's behalf.

In the event of course because the appeal has failed there was no need to hear any issue as to the question of bias. We have to say that it seems to us that the allegation of bias in this case should never have been made for a number of reasons.

In the first place bias is not a ground of appeal which arises only if other grounds have failed. Bias effectively if proved would render null the effectiveness of the proceedings below and would have led immediately to us ordering that this case be reheard before a different tribunal. It is therefore not a topic which is to be treated as something which can be thrown in on the basis of "further or alternatively" as was done in this case. In our judgment this is never to happen again. If a respondent is of the view that there was bias against him despite the fact that he succeeded, then he can raise that question of bias, and if he does so and if it were accepted, the consequence would be a rehearing. But it seems to us secondly, in any event, that this allegation of bias serious as it was is groundless and should not have been made for that reason.

We have looked with care at the affidavit material which was filed before us. Industrial Tribunal Chairmen have a very difficult task to perform in hotly contested litigation of this kind, where unpleasant allegations, namely race discrimination are being made. The Chairman of the tribunal described as "black" in the Notice of Appeal is probably the most experienced Industrial Tribunal Chairman when dealing with discrimination matters, as it is within the knowledge of this court that prior to taking up those duties he was employed by the Commission as one of its legal officers.

Having looked at the material which was presented to us, and had we had to adjudicate on the matter, we would unhesitatingly have concluded that the allegation of bias was groundless. Had we been of a different view, as I have already indicated, we would have considered that the matter should immediately have been sent back for a rehearing before another tribunal.

It follows therefore that we are concerned with a case of bias which should not have been made in the first place in the way in which it was; and secondly was groundless. That has put the CRE to expense which they would not have incurred had the allegation of bias not been made. The application for costs relates to the legal costs involved in that respect. It seems to us that that application should be granted.

Mr Beggs in a wholly appropriate submission on his client's behalf invited us not to make such an order, having regard to the fact that his clients, as he colloquially and correctly put it, have 'not come out of this case smelling of roses', because of the very nature of their defence to the case for race discrimination. He says that it would be wrong that they should be punished any further. They have been put themselves to the expense of contesting these proceedings and it would be a hardship to them to be ordered to pay these costs. Finally, because they receive monies from the public purse and because the CRE receives money from the public purse, therefore one should take that into account in not making an order for costs.

It seems to us that there is no question of punishment here. This is a case where costs follow from unreasonable conduct of proceedings in accordance with our rules. We are not making an order for costs in order to punish the respondents. Secondly, it seems to us that the community of interest in the sense that they all receive money out of the public purse is not an argument to which we should accede. The CRE received its own funds for its own purposes and their budget is expended in ways and in accordance with their statutory obligations; the same is true of the Housing Corporation. It seems to us that to treat them as effectively having the same monies would be wrong.

Accordingly we apply our minds to the question of our discretion. We should exercise our discretion in our view in this case, and we therefore make the order that the costs of the CRE of defending and dealing with the allegation of bias raised in paragraph 5 of the respondent's answers should be paid for by the respondents in any event. Those costs to be taxed if not agreed.