United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR P DEAN (of Counsel) The Lewington Partnership Solicitors Midland House 132 Hagley Road Birmingham B16 9NN
For the Respondent	MS C HYDE (of Counsel) Instructed by: Anunay Jha Commission for Racial Equality Elliot House 10-12 Allington Street London SW1E 5EH


 


JUDGE PETER CLARK: On 3rd August 1995 Dr Effa ["the applicant"] presented a complaint of unlawful racial discrimination to the Central Office of Industrial Tribunals against (1) Alexandra Healthcare NHS Trust ["the Trust"] and (2) Mr Jenkinson ["the respondents"]. That complaint was heard by an Industrial Tribunal sitting at Birmingham on 17th-21st June 1996 and 6th and 7th January 1997. By a decision with full reasons promulgated on 3rd March 1997 that tribunal upheld the applicant's complaint. Against that decision the respondents now appeal.

The parties' relationship

It was common ground that the applicant was a contract worker within the meaning of s.7 of the Race Relations Act 1976 ["the Act"], having been placed by a Locum agency ["Kalsac"] with the first respondent Trust as a Senior House Officer ["SHO"] in the Obstetrics and Gynaecology Department at their hospital. The second respondent was a Consultant in that department for whose acts the first respondent accepted responsibility under s.32(1) of the Act.

The applicant's background

The applicant was born in Nigeria in May 1938. He is black. He came to the United Kingdom aged 21 years and graduated from Aberdeen University with MB Ch.B. in 1965. He trained and specialised in obstetrics and gynaecology and took appointments at various hospitals as House Officer or SHO until 1971. Thereafter he worked as a Locum, dividing his time between the United Kingdom and Nigeria, and included a spell in a teaching hospital in India. He did not complete part II of the examination for membership of the Royal College of Obstetricians and Gynaecologists, and never attained Consultant status. It was, the tribunal found, very unusual to find a doctor of the applicant's age, 56, taking an SHO appointment.

His first appointment with the Trust, through the Kalsac agency, was from 21st-27th July 1994. That was followed by two further short appointments between 4th-7th March and 4th-11th April 1995, leading to the final engagement, planned for three months, from 1st May until its summary termination by the respondents on 16th May 1995.

The applicant's competence

No material complaint was made about the applicant's competence during his first three periods of duty, save for the observation that he tended to be slow about his tasks, especially in the out-patient and pre-operative clinics.

During the final period in May 1995 two general complaints were made; his slowness and his general lack of familiarity, sloppiness and unsureness in the prescription of drugs. Further, before the tribunal, specific complaints were made in relation to his treatment of patients on some ten occasions. Of these, only one gave real cause for concern the tribunal found; that was when the applicant prescribed penicillin for a patient allergic to that drug. Happily there was no adverse reaction and the Consultants who gave evidence before the tribunal acknowledged that other Locums not infrequently made mistakes.

Termination of the appointment

For the first time in her career the Senior Ward Sister, Sister Morley, who had seen many Locums come and go, of whom the majority, so the tribunal found, were from the ethnic minorities, felt that she had cause to complain about the applicant.

She complained first to Mr Macpherson, the Clinical Director of the Department on 15th May and on the following day she spoke to Mr Jenkinson, a Consultant. The main burden of her complaint related to the applicant's slowness and the perceived need to have him accompanied by a member of staff.

Consequently Mr Jenkinson spoke to his colleagues and suggested to them that the applicant's appointment be terminated. He was mandated to take that step and met with the applicant; after a short conversation the applicant asked what he wanted him to do and Mr Jenkinson replied that he wanted him to leave immediately.

The Industrial Tribunal's view

The tribunal accepted the applicant's evidence that a summary termination of his appointment ought not to happen to any doctor. It breached the basic principle of natural justice, in that he was given no real opportunity to speak in his own defence. The respondents admitted that their treatment of the applicant was a "travesty" of good industrial relations practice. The tribunal referred to what it described as professional guidance which advised that where doctors believe that a colleague's conduct or professional performance posed a danger to patients, before taking any action they should do their best to establish the facts.

The tribunal accepted that Sister Morley acted out of genuine concern. The applicant was slow. However, that would not of itself amount to a sufficient ground in the view of one Consultant, Mr Elias-Jones, to justify the termination of a junior doctor, even a Locum. Sister Morley was surprised that the applicant's appointment was terminated as a result of her complaint. The degree of incompetence alleged by the respondents was not proved to the satisfaction of the tribunal.

The tribunal detected a feeling among the Consultants that Locums "did not count". They were held almost in professional contempt. As the tribunal graphically put it, their perception and that of Sister Morley was that the applicant was an old bumbler whose lack of competence was amply demonstrated to them by his slowness, age and lack of progress in the profession.

Racial Discrimination

In order to succeed in this claim of direct unlawful racial discrimination it is necessary for the applicant to show:

(1) that he was treated less favourably than an actual or, failing that, hypothetical comparator. (S.1(1)(a) of the Act).

(2) that involves a comparison of like with like. (S.3(4))

(3) the treatment must be on racial grounds. (S.1(1)(a)).

(4) such discrimination will be unlawful if he suffers a detriment, here, by not allowing him to continue to work for the respondent. (S.7(2)(b)).

It is well understood that it is unusual to find direct evidence of racial discrimination. It will normally be a matter of inference for the Industrial Tribunal. Where the applicant shows less favourable treatment and a difference in race the Industrial Tribunal will look to the respondent for an explanation for the treatment applied to the applicant. If the explanation is inadequate or unsatisfactory the tribunal may, not must, draw an inference of unlawful discrimination. See King v Great Britain China Centre [1991] IRLR 513, per Neill LJ, approved by the House of Lords in Zafar v Glasgow City Council [1998] IRLR 36.

The fact that the tribunal finds the respondent's explanation unsatisfactory does not inevitably lead to a finding of unlawful discrimination. Zafar, disapproving dicta to that effect in Khanna v Ministry of Defence [1981] IRLR 331, and Chattopadhyay v Headmaster of Holloway School [1981] IRLR 487.

In particular, the mere fact that an employer has acted unreasonably does not lead to the assumption or inference that the employer would have acted reasonably towards an employee of different racial origin. See Qureshi v London Borough of Newham [1991] IRLR 264.

The Industrial Tribunal's approach

The tribunal accepted that no actual comparator had been produced. It was therefore necessary to look to a hypothetical comparator.

The critical finding, we think, of the tribunal is contained in paragraph 8.5.3 of the reasons where they say:

"Locums are not afforded full professional respect. The majority of Locums are from ethnic minorities. This exacerbates the prejudice because of the 'White career' assumption. The combination of these assumptions and prejudices have resulted in what the respondents themselves now accept as injustice to the applicant. In the case of a white doctor, even of the applicant's age, such assumptions, although possibly not entirely lacking, would not meet the same ease of acceptance as is likely to occur, and we think did occur, with the added factor of familiarity with ethnic minorities in that situation. There would something more to investigate; less room for prejudiced assumptions. There will be no 'rush to judgment'; no excuse for the lack of full industrial relations and professional courtesies of a proper and meaningful discussion of the complaints which the applicant before, if necessary, following professional guidelines of termination and reporting, although we think that would have been an unlikely outcome in this case."

It is those findings, leading to the tribunal's conclusion that the respondents had unlawfully discriminated against the applicant, which in our view form the real focus of this appeal.

The Appeal

We think that Mr Dean correctly posed the question for this appeal tribunal to answer in this way; was the Industrial Tribunal entitled to infer that a white 56 year old Locum with the applicant's failings as found would not have had his appointment summarily terminated? He says no; Miss Hyde says yes. What is our response?

In our judgment this tribunal fell into the same trap as did the Industrial Tribunal in the case of Qureshi. It found that the applicant had been badly treated in the way in which his appointment was summarily terminated by Mr Jenkinson. Indeed he had. It found that Locums were not treated with full professional respect because they did not fit into the "White career" profile. That perception applied equally to black and white Locums. It made the assumption, for which there was no factual basis, that a hypothetical white comparator would have been treated differently. There was no warrant, in our judgment, for making such an assumption, or for inferring that a comparable white doctor would have been treated any differently. Unreasonable treatment does not, without more, become discrimination merely because the person effected by it is from an ethnic minority.

In these circumstances we accept the principal submission made by Mr Dean on behalf of the respondents. The Industrial Tribunal reached an impermissible conclusion in law on the facts as found. The appeal is allowed. The finding of the Industrial Tribunal must be reversed and the complaint be dismissed