United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON
For the Respondents	MR A KORN (of Counsel) Messrs Paisner & Co Solicitors Bouverie House 154 Fleet Street London EC4A 2DQ


 


LORD JOHNSTON: This is an appeal at the instance of Mr Davis in respect of an application made by him to the Industrial Tribunal against his former employers, City & Islington College, in which he made certain allegations of racial discrimination with regard to the way he considered he had been treated in relation to a grievance procedure or the procedure with which a grievance that he alleged he had suffered whilst still in the employment of the College was handled. There was also a cross-appeal initiated by the employer, but for reasons which will become clear, we did not require Mr Korn, who appeared for the employer, to address us on that matter, since we are satisfied for the reasons we are about to give that this appeal cannot succeed.

It is trite that the basic law against discrimination which is found in s. 1(1)(a) of the Race Relations Act 1976 requires the person making the complaint to establish on the balance of probabilities that he has been treated less favourably by the employer than that employer would treat or has treated some other person. It is also accepted as a matter general law and was accepted at the Bar by Mr Korn, that when questions of comparison arise the comparator can be either real or hypothetical. But it also trite and this is very clear from the decisions of both King v GB China Centre [1991] IRLR 513, and the subsequent decision of the House of Lords in Strathclyde Regional Council v Zafar [1998] IRLR 37, that for a complaint alleging racial discrimination even to get off the ground, there must be evidence to yield an inference that such discrimination can legitimately be considered at least as a background to the complaints that have been made. In this particular case the substance of the complaint by Mr Davis was that the tribunal had misdirected itself by not embarking upon the comparator exercise whether actual or hypothetical.

In response to that Mr Korn's position was, first of all against the background of the well-known decision of Derby City Council v Marshall [1979] IRLR 21, that as a matter of generality, a tribunal considering complaints of any nature under the employment legislation is only required to take account of matters that are put in issue before them, and not to speculate upon or venture into positions that might have been taken but were not in fact. This is relevant to the present case said Mr Korn, because the way Mr Davis had presented the matter before the tribunal, the issue of a hypothetical comparator was not in fact raised. However he went further than that and submitted that the tribunal had properly applied itself to the current law and had properly applied that law to the facts in question. Finally he submitted that even if they had not properly considered the question of the hypothetical comparator, contrary to his previous submission, it would have made no difference in the context of this case.

With all these submissions we agree. There is nothing in the evidence that would suggest that the tribunal even had the basis for drawing any form of inference that there had been racial discrimination in what was quite obviously a completely shabby way in which Mr Davis was treated, but that is not to suggest that the ineptitude that had been identified, was brought about by any racial motive or upon any racial grounds. This is particularly apparent when one considers the fourth complaint made by Mr Davis, which is at paragraph 38 of the tribunal's decision on page 16 of our bundle. It is perfectly clear that the tribunal categorised the conduct and the treatment meted out by the then employer to Mr Davis as seriously deficient . But that is not in itself any basis for going further and drawing a quite separate inference that those deficiencies depended upon some form of racial basis. Accordingly the rather extraordinary thing about this case is that even if there was evidence that would suggest some form of inference of racial discrimination in the whole process, and we can find none, there is also an explanation put forward for what actually happened which meets entirely what Neill LJ said in his very clear guidelines in the case of King in respect of the onus on the employer to provide an explanation inconsistent with such an inference.

We recognise and sympathise with Mr Davis' obvious dissatisfaction with the way he was treated, but that is a mile away from finding that there was any form of discrimination. We can find nothing in this case that would suggest that the tribunal misdirected itself on that vital question in the absence of any evidence that would justify even a prima facie inference. For these reasons this appeal will be dismissed and the cross-appeal need not proceed.