United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS TESS GILL (of Counsel) Commission for Racial Equality Elliot House 10-12 Allington Street London SW1E 5EH
For the Respondents	MR B CARR (of Counsel) McGrigor Donald Solicitors Pacific House 70 Wellington Street Glasgow G2 6SB


 


JUDGE PETER CLARK: This is an appeal by Mrs Teo, the applicant before an Employment Tribunal sitting at Stratford on 1st-4th September 1998, against that tribunal's decision promulgated with extended reasons on 8th December 1998, dismissing her complaints of direct sex and race discrimination against the respondent Bank and, whilst upholding her complaint of unfair dismissal, finding that she was entitled to a nil compensatory award and only 25% of the basic award, due to her own contributory conduct.

The facts

1. The Bank is based in Taiwan. In 1993 it opened a London branch. The appellant was one of the first employees at that branch. She commenced her employment on 1st March 1993. She held the post of Senior Accountant. That employment ended with her summary dismissal on 19th September 1997.
2. She is of Singaporean nationality. The London branch employed less than 20 people. Most, like the appellant, were of Chinese ethnic origin; some were from Taiwan, others from mainland China and Hong Kong. Staff also came from the United Kingdom and Germany. The precise national and ethnic make up of the staff appear from the organisation chart which was before the tribunal. That chart also identified the sex of each member of staff, a mix of male and female.
3. There was evidence before the tribunal, not expressly referred to in their reasons, that in 1996 a new computer system was installed within the London branch. The appellant claimed (her statement attached to the Originating Application, paragraph 5) that whilst others were trained on the new software she was not allowed to undergo training. That, she contended amounted to less favourable treatment on grounds of her nationality. She took as her comparator Ms Chow, who we see was of Hong Kong nationality.
4. The evidence of Mr Tu, the branch General Manager and Mr Liang, the Deputy General Manager was to the effect that it was not feasible for each employee to be individually trained by the IT consultants who installed the system. Management selected three employees, Kevin Qualters (United Kingdom nationality), Ms Chow and Ms Fang (Taiwanese nationality) for initial training on the grounds that they had considerable experience in computers, would be easy to train and could in due course train the remaining members of staff.
5. There was a subsidiary factual issue as to whether the appellant herself had refused to attend a preliminary meeting designed to consult with staff on who should receive the initial training on the system. It was the appellant's case that she tried to attend the training course but was not allowed to do so because preference was given Ms Chow. This particular factual issue was not expressly resolved by the tribunal.
6. There were essentially two strands leading ultimately, so the tribunal found, to the appellant's dismissal. First, the Bank, in line with Bank of England guidelines, drew up a formal arrangement for substitutions, that involved drawing up a list of up to four substitutes for each post within the branch, those persons to substitute for the job-holder when he or she was absent on leave, through sickness or otherwise.
7. The appellant was identified as substitute for Ms Chen insofar as her duties involved operating a message device known as SWIFT. That involved checking incoming messages on that system, sorting them and distributing them to their recipients. Some of the messages were very important. However, the work, whilst essential, did not require constant attendance by the operator.
8. It was the appellant's position that such work was demeaning to her, as Senior Accountant. She complained that she was not contractually obliged to do such work. She raised a grievance over it with Mr Tu.
9. Secondly, she objected to management's requirement that she should train Ms Chow in that part of her own job for which Ms Chow was first substitute. She contended that she was unable to train Ms Chow to do complicated Bank of England returns when she, the appellant, had not been trained on the new software packages.
10. These two issues rumbled on from April 1997 until the appellant went off sick on 27th June and during her sick absence by exchange of correspondence with Mr Tu.
11. She returned to work on 19th September 1997. She then believed that Mr Tu would reconsider the issues of her substituting for Ms Chen and training Ms Chow. She was disappointed to learn that Mr Tu had handed the matter over to Mr Liang, as head of personnel. When called to discuss the matter with Mr Liang she refused to do so. The tribunal found that was a challenge to his authority. Further she imposed what the tribunal found to be an unreasonable condition, that she first had the opportunity to discuss it with Mr Tu.
12. The tribunal concluded that having adopted such an intransigent and challenging position it was inevitable that the appellant would be dismissed, as she was by Mr Liang after he asked her, on two occasions whether she would take part in the substitute and training programme. This took place in front of most of the staff, whom Mr Liang had summoned to witness events. In so doing, the tribunal found, Mr Liang subjected the appellant to an unnecessarily oppressive and humiliating experience.
13. Oral dismissal was followed by a letter from Mr Liang dated 19th September in which he gave as the reason for dismissal the appellant's continued refusal to carry out a reasonable request of her employers.
14. Against that decision the appellant appealed to Mr Tu. An appeal hearing took place on 16th October. The dismissal was upheld.

The Employment Tribunal decision

15. Based on the facts as they found them the tribunal reached the following principal conclusions:

(1) Sex and race discrimination

There was no reliable evidence that the appellant was treated in any different way to all the other members of staff, irrespective of sex or race (reasons, paragraph 18). The complaints of race and sex discrimination were dismissed.

(2) Unfair dismissal

(a) The reason for dismissal was that given by the Bank. It was a potentially fair reason relating to her conduct.

(b) The dismissal was unfair in its manner, which was needlessly stressful or humiliating.

(c) Although the appellant should bear sole responsibility for her dismissal, the tribunal reduced her basic award by 75% to take account of her conduct, bearing in mind also the manner of dismissal. That resulted in an award to her of £315.

(d) The compensatory award would be reduced to nil by reason of her own culpable and blameworthy conduct.

The Appeal

16. The various grounds of appeal may be broadly categorised as follows:

(1) The tribunal failed to ask themselves, when dealing with the complaint of direct racial discrimination, whether the appellant was treated less favourably than other employees on the ground that she was of Singaporean nationality. It follows that the correct comparison to be made was with other employees of different nationality.

(2) The tribunal failed to make adequate findings of fact and/or to give adequate reasons for their decision.

(3) The tribunal made findings as to compensation for unfair dismissal on the footing that the appellant was solely responsible for her own dismissal due to her refusal to obey the employer's reasonable and lawful instructions without considering whether the manner of her dismissal was due to her nationality and/or sex.

17. Before turning to the detail of the submissions on those grounds, it is necessary first to set out the relevant legal principles.

Direct racial discrimination

18. By s.1(1)(a) of the Race Relations Act 1976 a person directly discriminates against another if on racial grounds he treats that other less favourably than he treats or would treat other persons. Although not directly in point here, indirect discrimination under s.1(1)(b) involves a comparison between persons of the appellant's racial group with persons in a different racial group.
19. The expressions 'racial grounds' and 'racial group' are defined in s.3(1) of the Act as follows:

" 'racial grounds' means any of the following grounds, namely colour race, nationality or ethnic or national origins;

'racial group' means a group of persons defined by reference to colour, race, nationality or ethnic or national origins, and references to any racial group refer to any racial group into which the applicant falls.'"

20. Thus, in a complaint of direct racial discrimination, it is necessary for an Employment Tribunal to consider:

(1) the treatment complained of by the applicant;

(2) the relevant actual or notional comparator, in the present case an employee of different nationality to the appellant;

(3) whether the applicant has been less favourably treated than the comparator(s), if so

(4) whether that treatment was on racial grounds.

Adequacy of reasons

21. In setting out their reasons, Employment Tribunals are not required to create 'an elaborate formalistic product of refined legal draftsmanship'. Meek v City of Birmingham District Council [1987] IRLR 250, 251 per Bingham LJ. Instead the reasons should contain an outline of the story, a summary of the basic factual conclusions and a statement of the reasons which led them to reach the conclusions which they did. The parties are entitled to know why they have won or lost.
22. The tribunal must make all necessary findings of fact. They need not set out each and every dispute of fact and resolve it. Particularly, in discrimination cases, tribunals should make the necessary primary findings of fact on which any inference of unlawful discrimination is based. Chapman v Simon [1994] IRLR 124.
23. The appellant's submissions

(1) Ms Gill submits that at paragraph 4 of their reasons the tribunal clearly fell into error by equating ethnic origin with racial group. To say that employees of ethnic Chinese origin were not of a different racial group to the appellant is incorrect, as a mater of definition under s.3(1) of the Act, and this error, she contends, fatally undermines the tribunal's conclusion as to direct racial discrimination in this case.

We agree that the words used by the tribunal were incorrect as a strict matter of statutory construction. However, first we think that is to take too literal an approach to the tribunal's reasons as a whole. Plainly they had in mind (reasons, paragraphs 2 and 3) that the appellant was from Singapore and her complaint was that preference was shown to those from Taiwan. They rejected that case.

Secondly, and more to the point, we accept Mr Carr's submission that had the tribunal concluded that there was no relevant comparator they would not then have gone on to consider whether there was different, we think that means less favourable, treatment of the appellant compared with all other employees.

In our judgment the greater includes the lesser. The finding by the tribunal at paragraph 18 that the appellant was not treated any different way to all other members of staff, irrespective of race or sex, is a finding that on any view the appellant has failed to establish less favourable treatment, the third of the four stages which we have earlier identified. In order to succeed, the appellant must succeed at all stages.

It follows that we reject Ms Gill's first complaint.

(2) Adequate findings

Here, two complaints are made:

(a) that the tribunal made no findings on the specific complaint of discrimination identified at paragraph 5 of the statement attached to the Originating Application. She submits that an applicant is entitled to a finding on every complaint which she brings. Not to do so inevitably amounts to an error of law.

We accept, as does Mr Carr, that there is no express finding. However, we return to the purpose of an Employment Tribunal's reasons, set out in Meek.

If a cause of action is nowhere dealt with by an Employment Tribunal, that will constitute an error of law. The example I gave in argument was where in addition to complaints of race and sex discrimination, the applicant further complains of disability discrimination. If no finding is made on that latter complaint the decision will be flawed.

However, where one of a number of factual complaints of alleged discrimination are not specifically dealt with in the reasons that will not necessarily lead to a finding on appeal that the tribunal has fallen into error. Sometimes individual complaints, outlined in the Originating Application are simply not pursued. In other cases, and we think this is one of them, the way the case develops before the Employment Tribunal involves a focus on other matters. Here, the real complaints related to the requirement that the appellant's substitute for Ms Chen in relation to SWIFT messages and that she train Ms Chow (which in turn raised her complaint that she, the appellant had not been trained on the new system). They were at the forefront of the case before tribunal over four days. The tribunal found, comprehensively, that in relation to those matters the appellant was treated no differently from everyone else. That is sufficient, in our view, to tell the appellant why she lost on her race and sex discrimination claims.

(b) Ms Gill contends that the tribunal failed to deal with the appellant's complaint that her dismissal was on grounds of her nationality or sex.

We cannot accept that submission. The tribunal's findings are clear. The sole reason for the appellant's dismissal was her intransigence in refusing to obey lawful and reasonable instructions. It was that refusal alone which led to Mr Liang's manner of dismissal, which was stressful and humiliating to the appellant. It had nothing at all to do with her race or sex.

(3) It follows that we reject the appellant's challenge to the tribunal's conclusions on sex and race discrimination. Consequently, that part of the appeal against the remedies for unfair dismissal, which is itself dependent on a successful challenge to the tribunal's findings on discrimination, must also fail.

24. In these circumstances, this appeal is dismissed.