United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS HARJIT GREWAL (of Counsel) Instructed by: Ms L Connerty Principal Litigation Officer Commission for Racial Equality Elliott House 10-12 Allington Street London SW1E 5EH
For the Respondents	MR ANDREW BURNS (of Counsel) Instructed by: Mrs S Capper Principal Solicitor London Borough of Barnet The Town Hall The Burroughs Hendon London NW4 4BG


 


MR JUSTICE LINDSAY (PRESIDENT): We have before us by way of a full hearing the appeal of Ms M J Graham in the matter Graham v London Borough of Barnet. Today Ms Graham appears by Ms Harjit Grewal and the London Borough by Mr Burns,

1. Ms Graham, who then, as now, was an employee of Barnet Council, lodged an IT1 against Barnet on 14th April 1998 claiming racial discrimination. She had begun employment with them in October 1995. By April 1998 she had become a Training and Development Adviser for children and families. She is black and is of Afro-Caribbean descent.
2. Her IT1 made allegations of a racial nature against several employees of Barnet, covering events from January 1997 onwards, but most of all complaining of some events in and around a disciplinary hearing against her in January 1998.
3. Her IT1 was resisted. There was therefore a Tribunal hearing at London (North) spread over some three days in October 1998, during which the evidence was concluded but there had been no time left for oral final submissions. They were arranged instead to be delivered in writing. The Tribunal under the chairmanship of Mr M S Rabin considered those submissions in Chambers with the two members on 19th November 1998.
4. The decision, which was a majority one, was sent to the parties on 21st December 1998 and it was:

"It is the majority decision of the Tribunal that the Applicant was not racially discriminated against and her application is therefore refused."

5. On 14th February 1999, which is a date that would seem to be out of time but presumably there was some extension, a long Notice of Appeal, some seven pages of typescript, was submitted by the lay representative who had represented Ms Graham below, Mr German.
6. On 7th July 1999 the matter came on in the usual way at the EAT for a preliminary hearing. It came on before a constitution of the EAT sitting under Morison J as President. The EAT on that occasion identified two points only as fit to come forward to a full hearing. Although in point of form the Notice of Appeal remains unamended, the Appellant, by Ms Grewal, very properly limits herself to those two points.
7. The two points are these. Firstly, did the Tribunal err in law in its view of what did or did not constitute a detriment within section 4 of the Race Relations Act 1976; and, secondly, did the Tribunal err in law in its consideration of the fact that both Ms Graham and the individual selected by Ms Graham as her chief antagonist, Miss Bennett, her line manager as from 1st October 1997, are of the same ethnic background, namely Afro-Caribbean. Both points will need further explanation and a further setting out of the background by reference to the facts found by the Tribunal.
8. On 12th November 1997 Ms Graham, as a Training Development Adviser, was due to run a training course aimed chiefly at residential social workers and foster carers; amongst others a number of qualified social workers signed up for the course. As to this the Tribunal said this:

"13 … As the course proceeded a number of the participants complained that it was pitched at too basic and unstructured a level. The course material, which Ms Graham had prepared, had only been typed up on the previous day and there was general dissatisfaction expressed by the participants. Ms Graham promised to re-evaluate the course on the second day. Halfway through the morning on the second day, 13 November, Ms Graham received a message from the Respondent's office informing her that her young daughter had been taken ill and that she should go to her school. Ms Graham left without making any arrangements for the course participants in her absence nor did she notify the office that she was leaving. She did not return that day. The course participants were very annoyed at the way the course had been handled to date and telephoned to the Respondents insisting that Miss Bennett should come and meet them so that they could voice their concerns. This Miss Bennett did and she was met by numerous complaints from the 10-15 participants who had been left by Ms Graham. The group had made a number of comments on a flip chart which Miss Bennett noted. These included "trainer not experienced or prepared", "course content too basic for delegates", "no aims or objectives, no ground rules, no structure or co-ordination", "boring/insulting/patronising" "trainer disinterested in course content and delegates" and "we ended up training ourselves, we prepared our own objectives prior to the trainer leaving of what we wanted to achieve (sic)". The majority of the participants in the course were white but the sole black participant who subsequently commented was substantially in agreement with her colleagues, save that having marked down the course and the trainer in most aspects, she concluded that overall she was satisfied with them."

9. The line manager, Miss Bennett, having heard these complaints, looked further into the complaints of the people who had attended the course. The Tribunal continued:

"Miss Bennett, herself a black woman, felt that there was no racial motivation in the group's remarks. When she had received all this information she concluded that Ms Graham may have been guilty of gross misconduct in failing to prepare and deliver a course up to a standard which was within her professional capabilities. She went to see her manager Mr Pinkham, and sought permission to suspend Ms Graham while she carried out her investigations. One of her motives for this was to prevent Ms Graham from back-tracking on the material which she had prepared (or rather, failed to prepare) for the course in order to meet claims that the course was not properly prepared and documented. Mr Pinkham supported Miss Bennett's request and authorised her to suspend Ms Graham and pursue her inquiries."

10. Ms Graham then prepared a memorandum of which the Tribunal said this:

"In this she sought to justify the manner in which she had conducted the course and concluded as follows:

"The course finished in a positive way and participants were supportive of the difficulties in implementing the programme."

That is in stark contrast to the comments made by course members to Miss Bennett as indicated above. …"

11. Ms Graham gave her memorandum to Miss Bennett. Miss Bennett said to Ms Graham that Mr Pinkham had indicated that there would have to be a suspension and full investigation. Of that the Tribunal said:

"Miss Bennett told Ms Graham that she was suspended on full pay for reasons related to Ms Graham's behaviour/competence on the 'Carers' Course and if substantiated, it would be gross misconduct. …"

12. Mr Pinkham wrote to Ms Graham to similar effect.
13. Miss Bennett then began to approach, a second time, those who had been on the training course. Of that the Tribunal said this:

"14. Miss Bennett decided to obtain input from the course participants and wrote to them individually seeking their comments. In order to do this she sent them a standard course evaluation form which sets out a number of aspects of the course and gave the participants the opportunity to grade each aspect from 1-4. They were satisfaction ratings from 1 – not at all, to 4 – a lot. Of the forms which were in the bundle, the substantial majority rated aspects of the course and the trainer either as 1 or 2. Ms Graham and her representatives complained that it was inappropriate to obtain comments on a three day course which was not even half finished, and to seek those comments on a form which is designed to evaluate the whole of the course. We accept that observation, but Miss Bennett made it clear that she was using the form merely as a vehicle to elicit the comments of the participants on the course, so far as it went, in as objective a form as possible. …"

14. There was then a meeting with Ms Graham to discuss the responses that had been received from the people on the course and a further meeting with the course participants. The Tribunal held that "The course participants' maintained that their criticisms were justified."
15. A disciplinary hearing took place on 23rd January 1998. Mr Pinkham presided. An outside consultant, Mr German, represented Ms Graham. Miss Bennett presented the case against Ms Graham. In Ms Graham's favour, Mr Pinkham limited the area complained of to the conduct in and around the Carers' Course. There had been an attempt by Miss Bennett to extend the range of matters to be looked into beyond that, but Mr Pinkham limited it in that way.
16. There is no finding by the Tribunal which is critical of the way in which the disciplinary hearing was conducted. On the contrary, they say this:

"16 … Ms Graham was given a full opportunity to present her case both personally and by her representative. They were given prior access to all the evidence which was before Mr Pinkham and the hearing was conducted in full compliance with the Council's disciplinary rules of procedure."

17. On 26th January 1998 Mr Pinkham sent the formal outcome of the disciplinary hearing by letter to Ms Graham. The letter said:

"Further to the disciplinary hearing in front of me on 23 January 1998, I am writing to confirm my decision to issue you with a first written warning.

In issuing this warning I find that your performance in running the course, "Helping carers cope with children with challenging behaviour", 12-14 November 1997, fell short of the standard of behaviour and competence expected of a training and development adviser of your seniority. In finding misconduct by you in this matter I also dismiss the allegation of gross misconduct in respect of this incident."

18. On the same day he wrote a strikingly less formal letter to Ms Graham which said this:

"Firstly I wish to confirm to you that I have no doubts about your competence and ability and that I am keen to retain your skills within the department … Christine [Bennett] and I are very conscious of the need to give support and feed back on a regular basis as well as the need to conduct an appraisal. This will all be put in hand.

Finally I am concerned to offer you proper support in respect of the racial abuse you reported and Christine will be looking at that. In principle however, you have a lot of control over when and where you carry out your duties and you will always have my support as long as the outcomes are right."

The reference to racial abuse is nothing to do with conduct by Miss Bennett but by another employee of the Council.

19. Ms Graham appealed but the appeal failed. It was an appeal to the Chief Executive, Mr Max Caller. The Tribunal said:

"20 … Mr Caller upheld the decision to issue a first written warning and refused to consider the other charges which had been brought by Miss Bennett, as had Mr Pinkham. …"

Again, therefore, limiting the range of complaint against Ms Graham to less than Miss Bennett would, it seems, have wished.

20. The Tribunal set out the material parts of sections 1 and 4 of the 1976 Act. They reminded themselves of the important case King v Great Britain China Centre [1992] ICR 516. They set out the questions which they ought properly to pose for themselves and there has been no argument that they erred in law in doing as they did at that stage.
21. The Tribunal then set out the rival submissions including the submissions which are the most material for present purposes, namely, that Mr German on Ms Graham's behalf argued, as the Tribunal found it:

"25 … He focused on the position of Miss Bennett as a black manager. He described her role motivation in treating Ms Graham unfairly as an opportunity for her to "identify in the Applicant an isolated black woman in the unit against whom she (Miss Bennett) could take action and demonstrate her power and status"."

22. So far as concerns Barnet, the argument was:

"26 … There was no evidence to substantiate the contention that Christine Bennett as a black manager felt pressured by white colleagues to discipline the Applicant more harshly than she would otherwise have done and Mr Burns suggested that the evidence showed that Christine Bennett, a black woman, is a manager who is very much aware of race issues and had no racial motivation against the Applicant whatsoever. …"

23. The Tribunal dealt in a way, that we do not need to recite, with quite a number of racial complaints that Ms Graham had made against other colleagues, not Mr Pinkham and Miss Bennett, and they were not upheld by the Tribunal on the facts. It is not at all improbable that she did her cause no good by attacking so many colleagues without success.
24. The Tribunal turned to the matters which they regarded as most material to be looked into and at paragraph 27 they say:

"27 The only allegations of race discrimination which we are considering in this case are those set out at the beginning of Mr Burns' submissions namely:

(1) The decision by Christine Bennett to discipline Ms Graham and

(2) the decision by Rob Pinkham to warn her for misconduct."

25. The Tribunal looked into whether any of the comparators that had been sought to be identified by Ms Graham could be used as such and they found that there had been no actual comparator. At paragraph 30 they say:

"30 None of the comparators put forward by Mr German do in our view represent a situation where like-for-like treatment could be considered. We are therefore left with a notional comparator – i.e. a white woman professional who had committed similar acts to Ms Graham in relation to the Carers' Course."

26. Then in a number of passages, which are really at the heart of the appeal, the Tribunal said as follows:

"As regards the conduct of Miss Bennett, we must bear in mind that she, like the Applicant, was a black woman professional. They both came from the same ethnic background (Afro-Caribbean) and the majority of the Tribunal found it difficult to accept that she might have been guilty of race discrimination against someone from the same ethnic background as herself. However there were a number of cultural differences between Ms Graham and Miss Bennett; the former had an "Afro" type hair style and wore an African braided neckerchief. She preferred to be called "Mekada" rather then her other, more European, name of Julia. She is very conscious of her ethnic origin and regards herself as "a black woman professional". Miss Bennett adopted an entirely European dress and hair style. She is ambitious and seeks to make her way in the world as a woman professional who happens to be black. There was clearly no love loss between Miss Bennett and Ms Graham. This may have been due in part to the unfavourable reference which Miss Thorn [Miss Thorn was a previous and short-lived line manager of Ms Graham] gave to Miss Bennett about Ms Graham. Matters would not have been helped by the fact that shortly after Miss Bennett took over as Ms Graham's line manager Ms Graham refused to be appraised by Miss Bennett, notwithstanding the fact that Ms Graham had been complaining of lack of appraisal by her previous managers, Mr Rhodes and Miss Thorn. Ms Graham rejected Miss Bennett's request that she should be appraised and while Miss Bennett did not accept that Ms Graham was correct, she decided to defer dealing with the matter for the time being. However the Carers' Course incident intervened and no appraisal was ever carried out."

27. A little later in paragraphs 31, 32 and 33 the Tribunal says this:

"… When Ms Graham asked Miss Bennett to look at her evaluation sheets and personnel files, Miss Bennett took that opportunity to reinforce the allegations of gross misconduct made against Ms Graham. That was not a friendly act and it was apparent to us from Miss Bennett's demeanour at the witness table that she was not sympathetic to Ms Graham or her circumstances. On 13 November, when Miss Bennett was called down by the Carers' Course participants to face a barrage of criticism of Ms Graham, she was understandably incensed. Her immediate reaction was to blame Ms Graham and she sought approval of Mr Pinkham to suspend her and investigate. While her decision to do so was peremptory, it was in accordance with procedures and could not be criticised for that reason. A more sympathetic approach might have been to delay action whilst she discussed matters with Ms Graham and suggested a more constructive solution to the problem. That was Mr Thakoordin's view [Mr Thakoordin was the only black member of the Employment Tribunal] and he felt that Miss Bennett had been hasty in rushing to judgment and pursuing Ms Graham to a disciplinary hearing.

32. The majority of the Tribunal however felt that Miss Bennett really had little alternative but to initiate the disciplinary process in the light of the universal criticism which was made of Ms Graham following her sudden departure from the course. The procedure which followed was exactly the same as that pursued in respect of Mr MacCullum and could not be faulted. The Chairman and Mrs Rayman, representing the majority of the Tribunal, did not consider that there were any facts or evidence before them from which they could infer that Miss Bennett would have treated a white woman in the same circumstances any differently from the way she treated Ms Graham. There may have been some personal animus between them but if so it was by reason of personality, not race. Furthermore as Ms Graham was suspended on full pay, and as the decision of the disciplinary hearing was to find her [not] guilty of serious misconduct, the majority of the Tribunal found it hard to see how she can argue that she had suffered detriment by the actions of Miss Bennett.

33 Mr Thakoordin disagreed. He was more sympathetic to the assertions made by Mr German that there was institutional racism within the Respondents' training department. …"

28. Pausing upon the minority view, the one expressed at the Tribunal by Mr Thakoordin, it is hard to see Miss Bennett as rushing to judgment; rather, as it would seem, in a rush, if to anything, to investigation, fearing, as the Tribunal found, that Ms Graham would turn, late, to preparing material which she would then claim to have prepared before the course. Moreover, it was not she, Miss Bennett, who had decided upon the suspension; the facts found were that she went to ask permission to do so and that Mr Pinkham authorised the suspension.
29. The majority view was stated by the Tribunal in the passage that we have just read. So far as concerns Mr Pinkham, the Tribunal set out the case and as to him they said this:

"34 … The majority were persuaded that although Mr Pinkham found serious misconduct, he was clearly influenced by Ms Graham's mitigating circumstances and imposed a penalty which was in the order of sanctions, relatively lenient. That was an objective decision which would not have been any different had Ms Graham not been from an ethnic majority."

30. That is the factual background as found by the Tribunal as to the two points with which we have to deal. Taking them in turn and looking at the first one under the heading of 'Detriment', the word appears in section 4(2)(c) of the 1976 Act in the expression "by dismissing him or subjecting him to any other detriment." It might be wise to read the whole of section 4(2):

"(2) It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee-

(a) in the terms of employment which he affords him; or

(b) in the way he affords him access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or

(c) by dismissing him, or subjecting him to any other detriment."

It is plainly intended to be a word of wide import. Nothing in our view is gained by suggesting synonyms; the danger is that one then construes the synonyms rather than the word originally used by the Legislature and the flavour of the synonym might be slightly different. It is an ordinary English word and is to be given an ordinary English meaning.

31. As Ms Graham was suspended, while she was on full pay, she plainly suffered no financial detriment and there is no hint here, for example, of missed promotion to some better paid post or grade on account of her being suspended or any other form of financial loss. But detriment, in our view, is not to be limited to financial detriment. The Tribunal recognise that by pointing out, in effect, that her professional reputation could have suffered and they dealt with the fact that, after all, she was not found guilty of serious misconduct.
32. For our part we very readily accept that it can be a relevant detriment within section 4(2)(c) for an employee to be subjected to a disciplinary investigation especially where, in the ordinary course, the employer's reaction to events of the same kind would not lead to such an investigation, and particularly can that be detrimental when there is ground for the person being investigated to suspect, not unreasonably, that the investigation has been triggered by some form of discrimination, be it racial, sexual or on disability grounds. Detriment is not to be limited to financial detriment and is to be given a full range of meanings. Had this case been decided below on the footing that there had been no detriment possibly suffered by Ms Graham, we would very readily have found there to be a material error of law, but that was not the case. The Tribunal held that what was suffered by Ms Graham was not occasioned to her on racial grounds. The case, in other words, failed at the stage of section 1(1)(a); there was no discrimination so the case never got as far as section 4(2). The Tribunal recognised that their view of detriment was an additional point by their use of the words "furthermore", which we understand in our above citation of the Tribunal's paragraph 32.
33. Mr Burns has argued that, properly examined, the Tribunal's reference to detriment has to bear in mind that it was detriment "by the actions of Miss Bennett". A case can be made for such a reading. But, even assuming against the Tribunal that they had taken the view that there had been no detriment at all, leaving aside whether it was a result of Miss Bennett's actions or generally, that, whilst it would have been an error of law, would not, in the event, been a material error of law, because, given the Tribunal's views under section 1(1)(a), its view under section 4 was unnecessary to be given and, as we see it, did not effect the decision. Ms Grewal says that it must have influenced the decision, but we see no ground for accepting that it did influence the decision.
34. This first ground of appeal does not, in our view, assist Ms Graham and so we turn to the second ground, which we can give the simplistic heading of "Same race so no discrimination".
35. There is nothing in our legislation that supposes that treatment cannot be discriminatory on racial grounds by reason of the supposed victim and the supposed perpetrator being persons of the same race. Racial grounds are defined in section 3(1) to mean colour, race, nationality or ethnic or national origins and, plainly, one can have discrimination of, say, black against black both where the ethnic or national origins may be different - for example, Afro-Caribbean against West or East African - or where they are exactly the same. In just the same way one can have discrimination white against white or black or against black where there are no colour, race, and nationality or origin differences between the perpetrator and the victim.
36. In her skeleton argument, Ms Grewal gives a number of convincing examples of cases where one can have discrimination, albeit that both involved are of the same race or colour, national or ethnic origin. She says in her paragraph 13:

"There are many situations in which people may discriminate against those of their own racial group. An Asian or Black businessman may choose to hire an English salesperson because he assumes that customers might not like dealing with an Asian or Black salesperson. Asians or Blacks may be reluctant to instruct barristers from their own community because they think they will be better off with a white lawyer before a white tribunal or court. An English company accused of race discrimination may decide not to instruct a white barrister they have used on other occasions because they think it would be useful to have a Black barrister in such a case. An Asian or a Black manager may take a tougher stand against an employee of his own community in disciplinary matters because he fears that the behaviour of the individual will taint him or because he wishes to show that he is not favouring his own. An English employer might decide to recruit Asians rather than English people because he may think that the former are more reliable than the latter."

Her argument concludes in her paragraph 14:

"The possibilities are many and varied. What is clear, however, is that it cannot be assumed because two individuals are of the same racial group that the one will not discriminate against the other on racial grounds. It is, therefore, a factor that ought not to be taken into account to indicate the absence or improbability of race discrimination."

37. It is at that very last stage that we part company with Ms Grewal in her argument. We entirely accept that it cannot be assumed that individuals of the same racial group will not discriminate against each other on racial grounds. If the Tribunal had said that because Ms Graham and Miss Bennett were of the same racial group, namely Afro-Caribbean, there could not have been discrimination by one against the other, then that would, in our view, have been a glaring error of law. But to argue that the sameness is not a factor that can be taken into account seems to us unjustified and unrealistic and no statutory or other provision bars its consideration and no authority shown to us supports it being kept outside the range of factors that can be taken into account. There are many cases that ask the question "Is there a difference in race" and regard that as a factor that has to be considered in the overall decision. It is therefore impossible to see why the answer "no" to that question should not be carried into account, just as the answer "yes" would be, so long as it is fully recognised that the answer "no" does not of itself provide an answer to the more complex question of whether there has been discrimination on racial grounds. Just as the answer to "Is there a difference in race" can be "yes" without there being racial discrimination, so also the answer "no" could be given to it and yet with racial discrimination being found. In each case the answer is a factor that may properly be taken into account by a Tribunal judging, against the whole range of circumstances, whether discrimination on racial grounds is present or absent.
38. The Tribunal in the case at hand plainly did not say "no difference in race, ergo no racial discrimination". Had they held that they would not have needed to have gone on to consider the cultural differences to which they referred. Nor would they, if that had been their view, have needed to set out the personal animus they felt existed between Ms Graham and Miss Bennett. They would simply have rested on the view that no difference in race equalled no racial discrimination; but that they did not do. So far from saying "no difference in race and therefore no racial discrimination" they provided quite separate reasons for Miss Bennett's view of Ms Graham and her treatment of Ms Graham. In passages already quoted, they had said:

"30 … There is clearly no love lost between Miss Bennett and Ms Graham. This may have been due in part to the unfavourable reference which Miss Thorn gave to Miss Bennett about Ms Graham. …"

They spoke of Miss Bennett's demeanour at the witness table and that she was not sympathetic to Ms Graham or her circumstances. They said that:

"32 …There may have been personal animus between them but if so it was by reason of personality, not race. …"

39. We cannot see it to have been an error of law to have borne in mind the similarity, in racial terms, of Miss Bennett and Ms Graham as a factor amongst the many to be borne in mind by the Tribunal in the assessment that they had to make. The weight to be attached in all the surrounding circumstances to a difference in, or a similarity of, race as between the alleged perpetrator and alleged victim is essentially a matter of fact best left to the Tribunal which hears all the evidence and sees the witnesses and especially must that be so in a case where, as here, the Tribunal itself actually refers to the demeanour of one of them at the witness table. The Tribunal here, in their final paragraph, said:

"36 However, as the majority of the Tribunal concluded that there had been no race discrimination on the part of Miss Bennett or Mr Pinkham in the treatment of Ms Graham, the claim fails."

40. We have been able to detect no error of law in that conclusion and accordingly we must dismiss the appeal.