United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M RYDER (of Counsel) Instructed by: Ms Sian Hughes Principal Legal Office Commission for Racial Equality 3rd Floor Lancaster House 67 Newhall Street Birmingham B3 1NA
For the Respondents	MR M WYATT (of Counsel) Instructed by: Mr P Bear Messrs Freeth Cartwright Hunt Dickins Solicitors 27 Friar Lane Leicester LE1 5QS


 


MR JUSTICE MORISON (PRESIDENT): Although I am sitting here entirely on my own, this is a judgment of the whole the Employment Appeal Tribunal that sat in this case. I am simply the messenger conveying the news.

This is an appeal against a decision of an Employment Tribunal held at Leicester. The reasoned decision, which followed a hearing lasting three days of evidence and ½ a day of legal argument, was sent to the parties on 1st May 1999. By their decision the two separate complaints of the applicant, Miss More, were dismissed. Her complaints were made against her former employers, Travelsphere Ltd, a travel company, and certain named individual employees. She complained of unlawful discrimination on grounds of race under s.1 of the Race Relations Act 1976 (direct discrimination) and under s.2(1)(a) of that Act (victimisation), and of unlawful and unfair constructive dismissal.

1. The events immediately giving rise to the complaints started in April 1996 when she was given a verbal warning in respect of her allegedly poor performance. There is no issue between the parties that this warning was given pursuant to the Company's disciplinary procedure. Thereafter, she complained that she was unusually closely monitored in her work prior to the review meeting (the date of which was fixed at the disciplinary meeting in April) which took place on 2nd August 1996. The employer had in advance of that meeting prepared a memorandum and commenced to read it to the applicant. The tribunal made this finding:

"10. … The conclusion of that memorandum was that the applicant had improved, but said if her performance slides in any way Mr Newcombe would not shy away from reinstituting the process. He finishes the letter by saying " Lets us now put this matter behind us and move on"."

2. The applicant was extremely upset about what had taken place at that meeting and she never worked for her employers again. She applied to an Employment Tribunal on 29th August 1996 in relation to her discriminatory treatment. On 19th September 1996 she gave formal notice of her intention to terminate her employment from that date.
3. The nature of her complaints can thus be summarised:

The applicant is of Afro-Caribbean racial origin. She said that the way her alleged shortcomings were dealt with by her employers constituted unfavourable treatment on grounds of her race in that:

(a) she should have been, but was not, appraised under the Company's appraisal scheme in July;

(b) she was subjected to constant and excessive supervision;

(c) she was subjected to the disciplinary procedure whereas other alleged poor performers who were white were not; and

(d) her complaints about the procedures being applied to her, and that she was being unfairly treated and bullied on grounds of race, were left uninvestigated and unheeded.

4. The tribunal's decision, it was said, is devoid of any express direction on the law, and that is apparent from its face, and the appellant contends that it is lacking in sufficient findings of fact so that the Employment Tribunal have erred in law. Reference was made to the well-known case of Meek v Birmingham District Council [1987] IRLR 250, at page 251; and Levy v Mariable & Co Ltd [1984] ICR 583.
5. Thus, it is said, the Employment Tribunal did not deal with the lack of appraisal in July. They set out the rival contentions of the parties but not their findings of fact on it. Nor, it was argued, did the Employment Tribunal make proper and sufficient findings in relation to the allegation of constant and excessive supervision. Again, in relation to the allegation that she was subjected to disciplinary procedures and had identified other comparators the tribunal made no sufficient findings. She was entitled to compare herself to an identified white comparator whose poor performance was criticised but who was not dealt with under the disciplinary procedure. And there were no findings on the question of the investigation of her complaints.
6. In paragraph 19 the Employment Tribunal said this:

"19. We have considered the facts and the submissions very carefully. We do not find any evidence of racial discrimination and having considered the whole course of events we accept that the criticisms of the applicant by the respondent relating to her work, as shown in the various memoranda which have been produced in evidence, and also in the appraisals that we have seen, were connected wholly with the work performance of the applicant and resulted in the end in a situation where the respondents had thought that the applicant had improved and had decided that her slate should be wiped clean so far as the verbal warning was declared. We do not accept that the conduct of the respondent particularly relating to the health issue was such that the applicant was entitled to treat it as a breach of contract and to claim constructive dismissal. We have no received any evidence of victimisation. The application is dismissed."

7. It was submitted that there has not been a sufficient exposition the tribunal's reasoning process to enable the losing party to know why she had lost and no sufficient facts were found to enable the Employment Tribunal to perform its function of drawing inferences. Inferences can only be drawn from primary facts. An Employment Tribunal must find the facts; by failing to do so it effectively disables itself from fulfilling its duty to consider the question of inferences.
8. For the employers, Mr Wyatt submitted that the Employment Tribunal had done sufficient. Although there might be regarded a paucity of findings of fact, it was possible by reading the paragraphs of the decision prior to paragraph 19 to understand what were the rival contentions of the parties and to appreciate that the Employment Tribunal had, or must have, accepted the employer's argued case on all the issues. For example, the Employment Tribunal made a finding that the meeting on 2nd August was not part of the disciplinary process and although that might have appeared to us to have been a surprising finding, Mr Wyatt submitted that the tribunal were entitled to arrive at that conclusion, albeit that they had not explained how they had come to that conclusion. He pointed out that a decision is not intended to be more than a summary of the reasons of the Employment tribunal. An Employment Tribunal is not obliged to rehearse every point that was argued before it in fine detail. The decision is always tailored to the way the case was argued. None of us was present whilst the case was being argued and therefore we should be slow to criticise the Employment Tribunal. EAT is an appellate court which can only put right errors of law and we should not search around for deficiencies in Employment Tribunal decisions and create a point of law, when, in truth, this was a pure decision on a question of fact.
9. In relation specifically to the question of victimisation our attention was drawn to the Further and Better Particulars supplied of the allegation of victimisation. The representative of the applicant was asked to specify effectively which part of s. 2 was being relied on. The answer given was s.2(1)(a). That must have been the application to the Employment Tribunal. It was submitted to us that if that is right in so sense could the employer realistically be said to have subjected the applicant to less favourable treatment thereafter. She was not at work between that date and the end of her employment. The employers rejection of her complaints between 29th August and 19th September could not realistically fall into the category of less favourable treatment which is required by s.2.
10. This appeal is a familiar one to the Employment Appeal Tribunal. Have the Employment Tribunal done enough in their decision to comply with their duty?
11. We have been persuaded that they have not complied with their duty in this case. Decisions are always difficult to construct in cases of this sort. Discrimination cases in particular are always difficult to decide, because the Employment Tribunal is going to find that there is unlikely to be any direct evidence on which they can make a finding of unlawful conduct. The task of deciding whether there has been less favourable treatment requires an analysis of an actual or hypothetical comparator. This itself often gives rise to difficulties. In this case there were actual comparators with whom the applicant was comparing herself. It was, in our view, the Employment Tribunal's duty to examine that case with care and to make sufficient findings of fact to enable themselves to perform the function of drawing inferences, whether of race or not. The fact that the complaints made were "wholly work related", as stated in paragraph 19, simply did not deal with her case on the first three matters identified earlier on in this judgment. It may be that the Employment Tribunal in this case were asking themselves the wrong question, namely, was anyone racially motivated against the applicant. That was not the only question of relevance for them because they should have also appreciated that well-intentioned people can subconsciously be guilty of unlawful discrimination on grounds of race.
12. We are satisfied that the failures to make sufficient findings of fact is an error of law not just because it did not enable the Employment Tribunal to do its duty in a discrimination case to decide what inferences should be drawn, but also because, and the two may be related, the applicant can justly say in this case that she did not know why she lost.
13. The appeal must therefore be allowed and the matter remitted back before a freshly constituted Employment Tribunal to consider the complaints of s.1 discrimination and the case of constructive dismissal.
14. In relation to the complaint of discrimination by way of victimisation, we are not persuaded that there was a sensibly arguable case once the protected act was confined to the making of a complaint or to the suspicion that a complaint would be made. Nor are we persuaded that the Employment Tribunal were invited to consider the victimisation claim on the basis, as was put to us in argument, that it would be sufficient to show that the employers suspected that Miss Moore would or might make a complaint. It seems to us that it would not be right to permit Miss Moore to argue a case which may not, and probably was not, argued in that way before an Employment Tribunal. In any event, it seems to us, that the reality of her complaint is dealt with under s.1.
15. It follows, therefore, there needs to be now a directions hearing at the Employment Tribunal. It is our clear view that this case can only be properly be completed if witness statements are exchanged in advance and well in advance of the hearing. It is our view, also, that the Employment Tribunal concerned with the adjudication of this case should take time, it may be a morning, to read the papers before the evidence is called. In our judgment, witnesses should not be allowed or compelled to read their witness statements. That is an unnecessary time consuming and unproductive step. If the tribunal has read their statements in advance then those statements can be taken as read and the witnesses can then be subjected to appropriate cross-examination under the direction and control of the tribunal who will be well informed at that time as to what the real issues are between the parties. In our judgment that is what should now happen with this case.
16. It follows that we must allow the appeal but we do so with regret that the matter must go back for a further hearing. But no other course has been suggested to us and indeed we think no other course would be available. We remind ourselves that the events to which this case relates are now three years old. We quite understand that the task of the new tribunal is bound to be more difficult as a result. It is regrettable that the Employment Tribunal should not only have failed to set out the legal principles and apply those principles, but have failed to set out sufficient findings of fact to enable those principles to be applied.
17. In these circumstances the appeal will be allowed and the matter remitted back as I have indicated.

MR JUSTICE MORISON (PRESIDENT): I want to make it plain in this judgment that the fact that we have not allowed the matter of victimisation to reargued should not be taken by a new tribunal to be any indication of the way that the other part of the case should be dealt with. It should be apparent from what has been said in this judgment, that the reason why the victimisation complaint seemed to us not to be arguable was both because of the way it had been confined in the pleadings to the matters referred to in s.2(1)(a) when it may well be that it would have been possible to put it on a different basis, and because it is our view that it does not appear that it was argued before the Employment Tribunal before that it was sufficient to show that the employers had a suspicion that proceedings would be brought. On those two bases it would be unfair to allow the applicant a further opportunity to put forward a different and better case on victimisation than that which had been put before them. It seems to us that the justice of the case between the parties can properly be done on the basis of the claim of direct discrimination which lies at the heart of the applicant's grievance against her employers. The victimisation complaint, in our judgment, adds nothing to the force of her other complaints.