United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR JANKOWSKI (of Counsel) Instructed By: Lewisham Legal Services Lewisham Town Hall London SE6 4RU


 


MR COMMISSIONER HOWELL QC:

1. In this appeal which is before us for Preliminary Hearing the Appellant, the London Borough of Lewisham, seeks to pursue an appeal to have set aside a decision of the Ashford Employment Tribunal upholding, in three specific instances only, complaints of racial discrimination made against the Council by Ms Charmaine Ellis. She had since 1995 been a tutor in the Community Education Department responsible for teaching English to speakers of other languages, mainly members of immigrant communities. The tribunal's decision, set out in extended reasons running to no less than 51 closely typed pages at pages 11-61 of the appeal file before us, was issued to the parties on 18 November 1999 after hearings occupying a total of 19 days over the period 7 December 1998 to 1 October 1999 and two further days of deliberation by the tribunal.
2. The background to the proceedings was what the tribunal found to have been a breakdown in relations between Ms Ellis and some of the other tutors, in particular the course organiser Ms Collander-Brown who was her immediate "line manager". Ms Ellis is black African-Caribbean and Ms Collander-Brown is white. The deterioration seems to have started with two particular incidents referred to in the evidence before the tribunal, first an occasion in July 1997 when one of the other (white) tutors had handed her a mug of tea at a staff meeting drawing attention to the fact that the mug had on it a picture of a "gorilla" (later found by the tribunal, who inspected it, to have been an orang-utan); and secondly a later staff meeting on 13 March 1998, when a heated argument developed between the same white tutor and Ms Ellis, the course organiser lost control of the meeting and relations never resumed a normal footing from then on.
3. Very shortly after that, Ms Ellis submitted a formal grievance and other complaints against the course organiser and two white tutors. It is important that she was not the only one to take such steps. Another (white) tutor at the second meeting, Ms James, submitted a similar grievance against the course organiser at about the same time.
4. As the tribunal found, the Council failed to deal adequately and properly with Ms Ellis' grievance and other complaints. Matters quickly deteriorated further, to the point where she issued proceedings in the Employment Tribunal by Originating Application dated 10 June 1998, alleging direct racial discrimination against her on the part of the course organiser and the Council in the detrimental treatment she had received at the meeting on 13 March 1998 and subsequently. The detailed grounds annexed to the application contended in particular that racist and abusive behaviour towards her had gone unchecked and the Council had failed to deal with her complaints.
5. The tribunal's statement of reasons sets out in comprehensive detail the entire history of the matter, and the numerous factual instances relied on by that stage on behalf of the Applicant as showing a pattern of discriminatory conduct towards her. For reasons that are also set out in considerable detail, the Tribunal concluded that in only three of the individual instances relied on had Ms Ellis' complaints of race discrimination been established to their satisfaction: they failed as regards all the remainder. Ms Ellis herself has not sought to appeal as regards the rejection of the majority of her complaints and it has been indicated on her behalf that she does not wish to cross-appeal, even if the Council's appeal is allowed to go ahead. We are thus concerned only with the appeal the Council itself (through Mr Jankowski, the solicitor in its legal department who himself conducted the whole of the proceedings before the tribunal below and also appeared on the Council's behalf before us) seeks to pursue against the tribunal's findings on the three specific issues in favour of the Applicant. These are recorded in their decision in the following terms:

"(1) The unanimous decision of the Tribunal is that the respondent unlawfully discriminated against the applicant on the grounds of her race, by failing properly to investigate the complaints that she made against her co-employees, Dorothea Cross and Geoffrey Holden;

(2) The unanimous decision of the Tribunal is that the respondents further discriminated against the applicant on grounds of her race in that they failed to hear expeditiously her grievance against her line manager, Pam Collander-Brown;

(3) The unanimous decision of the Tribunal is that the respondents further discriminated against the applicant on the grounds of her race in that they failed to allocate counselling hours to her in September 1998."

6. The tribunal's conclusions on those three issues, each of which Mr Jankowski seeks to dispute on the appeal before us, are to be found in (1) paragraphs 73-74 of their stated reasons, dealing with the investigation of her complaints (of unprofessional conduct and racial discrimination) against the two named co-employees who were fellow tutors; (2) paragraphs76-77, dealing with the handling of the grievance procedure against the course organiser and line manager Mrs Collander-Brown; and (3) paragraph 69, dealing with the failure without adequate explanation by Mrs Collander-Brown to offer Ms Ellis the opportunity to do additional hours of work counselling students:

[(1)]"73 We now turn to consider the investigation of the complaints that Ms Ellis brought against Mrs Cross and Mr Holden, and the handling of her Grievance against Mrs Collander-Brown. It is clear from the perusal both of the original Grievance documents, ... that, rightly or wrongly, the complaints were essentially complaints of racial discrimination and harassment, although there were also complaints of unprofessional conduct against each of them. We have set out in our findings of fact what steps Mrs Stewart [next manager in line above Mrs Collander-Brown] took and what steps she did not take to investigate these complaints. It seems to us that it cannot be said that there was proper investigation of the complaints in that Mrs Stewart did not speak to Ms Ellis herself (although she knew the essence of Ms Ellis' case from the documents – but face-to-face discussion nearly always brings other matters to light): for the same reason, she did not speak to Ms James, but we find it totally inexplicable why she did not speak to Ms Hamilton. Ms Hamilton struck us as a particularly sensible and well-balanced lady, and whilst it is true that she and Ms Ellis had known each other for a long time, and worked together particularly on the Downham Library Homework Club, it seems to us that Mrs Stewart deprived herself of a valuable source of information by not speaking to Ms Hamilton. While we do not for a moment think that Mrs Stewart deliberately set out to discriminate against Ms Ellis, the effects of the methodology of investigation which she adopted – see our findings of fact above – meant that in effect she only heard one side of the story.

74 We have to say that we do not think that the evidence of character witnesses ... actually assisted Mrs Stewart in determining the truth or otherwise of the applicant's complaints. It seems to us that the letter which she wrote to Ms Ellis on 21 May 1998 (page 177) shows clearly that she did not investigate Ms Ellis' complaints properly. In our view, her failure to do so amounted to less favourable treatment: in accordance with the decision in Coyne v Home Office, we go on to ask ourselves the question whether that less favourable treatment was on the grounds of Ms Ellis' race, and the answer to that question is that since the complaints were complaints of discrimination, and there was a failure to investigate them properly, we draw the inference that Mrs Stewart was unwilling to investigate complaints of race discrimination and that the failure to investigate, we infer, was on racial grounds. That is our unanimous view.

...

[(2)] 76 We come to the handling of the Grievance Procedure. Here the complaint is simple: Ms James, who is white, brought her Grievance against Mrs Collander-Brown at the same time as Ms Ellis did. Ms James' Grievance was expeditiously investigated and dealt with, and was heard by Miss Buckton on 7 July 1998, and the outcome was notified on 16 July 1998 ... In contrast, Ms Ellis' Grievance had still not come to a hearing at the time when this case (or the first three days of it) was heard by this Tribunal. It was not until 5 February 1999 that Ms Ellis' Grievance was heard ...

77 It is clear that it was entirely unsatisfactory that there should be such a delay in hearing of Ms Ellis' Grievance. The whole idea of the Grievance Procedure is that a Grievance should be promptly dealt with, and not allowed to fester. The delay was caused to some extent by difficulties in obtaining a date for mediation, but in this connection it is important to observe the influence of the advice given by Mr Fairbairn, that even if it was difficult to fix a date for mediation 'the Council' wanted it dealt with that way, rather than by a formal Grievance Hearing. Mrs Stewart reluctantly accepted that advice, but as she frankly told us, she did so against her better judgment, because it was tendered at the point when she wanted to move the Grievance to a formal hearing. It seems to us that Mr Fairbairn's intervention flew in the face of the time-scale set in the Grievance Procedure for mediation, which is meant essentially to be a quick method of disposing of a Grievance. The delay in dealing with Ms Ellis' Grievance in comparison with the disposal of Ms James' Grievance is clearly less favourable treatment. We all draw the inference that the less favourable treatment was afforded to Ms Ellis on grounds of her race: the Grievance was largely about Ms Ellis' perceptions of race discrimination, and we infer from Mr Fairbairn's intervention that it was felt desirable, for some reason which we fail to understand, that the Grievance should not be expeditiously heard. We think that that step was taken on the grounds that it was a Grievance about race discrimination, and, analogously to our conclusions about the handling of the complaints against Mrs Cross and Mr Holden, we conclude that the delay in handling the Grievance was a delay which arose on the grounds of Ms Ellis' race, and that the failure to deal promptly with Ms Ellis' Grievance was indeed an act of race discrimination against her.

...

[(3)] 69 We now come to the allegation that at the beginning of the academic year 1998/99 Mrs Collander-Brown failed or refused to offer Ms Ellis counselling work (as described above) although such work was within Ms Ellis' qualifications, and was carried out by white Tutors who were not so well qualified. The Tribunal takes a unanimous view about this: we all feel that Mrs Collander-Brown's explanations, which varied as the case progressed, were unsatisfactory and included such matters as the frankly trivial reason that Ms Ellis did not take ESOL classes in a particular building. We draw the inference that this unexplained, less favourable treatment was on grounds of race, and was discriminatory."

7. Mr Jankowski made detailed submissions to us, in his skeleton argument and orally, in support of the contentions that each of those findings embodied errors of law on the part of the tribunal. First, he contended that the inference drawn by the tribunal in paragraph 74, that the failure to carry out a proper investigation of the complaints against the two white tutors had been on racial grounds because of the nature and circumstances of complaints, embodied a misdirection. In particular Mr Jankowski said there was no basis in the evidence for inferring that Mrs Stewart would have investigated any other kind of complaint any better, and he drew attention to the fact that Ms Ellis' complaints had also involved questions of unprofessional conduct, dealt with by Mrs Stewart in the same unsatisfactory way. Secondly, he said that a failure to investigate a complaint because it happened to have a racial element, while it might be rightly described as adverse treatment "on racial grounds", was no basis for the tribunal's apparent finding that there had been discrimination against Ms Ellis individually on account of her race as they specifically recorded.
8. We reject both of those submissions. The failure of Mrs Stewart on behalf of the Council to carry out a proper investigation into complaints of racially discriminatory acts, and other unprofessional conduct intimately bound up with the race discrimination issues, was in our judgment something the tribunal could quite reasonably find to be less favourable treatment of the Applicant and also, in the absence of any other reasonable explanation, to justify the inference that the less favourable treatment had been accorded on grounds of race. The fact that the investigation of her complaints of unprofessional conduct had been just as inadequate as those of racial discrimination, with which they were intimately bound up, appears to us no reason at all for invalidating the inference the tribunal drew. Nor does the second point. After questioning Mr Jankowski carefully on the distinction he was drawing between differential treatment "on racial grounds" and individual discrimination on ground of the complainant's own race, we concluded that his submission involved the absurd proposition that an employer could avoid liability for acts of discrimination against an individual employee contrary to s. 1 Race Relations Act 1976 by saying that he treated all other minority employees equally badly. The question that has to be asked for the purposes of direct discrimination under section 1 (1) (a) of the Act is whether on racial grounds an employee has been treated by his or her employer less favourably than other persons have been or would be treated. We do not consider it arguable that this tribunal misdirected itself in the inferences drawn here. In our judgment there was no error of law in their findings that there was adverse treatment in the way these complaints were investigated, and that the difference in treatment was on grounds of race so as to fall within the conduct made unlawful by section 1 (1) (a).
9. A further ground of criticism advanced by Mr Jankowski was that even if the findings recorded in paragraph 74 were correct such conduct would not have amounted to direct discrimination under s. 1 (1) (a) because conduct consisting of not investigating a race discrimination complaint ought more properly to have been regarded as discrimination by way of victimisation under s. 2 of the 1976 Act instead: if within that section, which the tribunal did not appear to have considered, it must fall outside s. 1 which they had. We have no hesitation in rejecting this argument. We see it as no reason whatever for restricting the scope of direct discrimination that there may be circumstances where conduct amounting to direct discrimination under s. 1 can also be shown to meet the requirements for discrimination by way of victimisation under s. 2 (which are more stringent, in particular in the need to show a direct causal link between the adverse treatment complained of and the making of a protected complaint or another protected act: see Nagarajan v London Regional Transport [1999] ICR 877). In any event Mr Jankowski conceded in argument before us that a failure to investigate racial discrimination complaints properly for the reason that they are such complaints must necessarily involve such a causal link, so that we were unable to see where this argument got him: on either footing the Council had been guilty of discrimination against the Applicant as found by the tribunal.
10. Thirdly, Mr Jankowski argued that there had been a breach of natural justice on the part of the tribunal in drawing the inference recorded in paragraph 74 from the evidence of Mrs Stewart's failure to investigate the Applicant's complaints adequately without having stated specifically in the course of the hearing that they might do so. Mr Jankowski conceded that all the relevant evidence had been gone into before the tribunal and that it was clearly understood that the question whether the inadequacies of this investigation amounted to discrimination against the Applicant was an issue before the tribunal which they had to determine. Nevertheless he submitted that they had erred in not specifically inviting submissions from him on behalf of the Council on the question of whether such an inference should be drawn in relation to Mrs Stewart. That is in our judgment quite unarguable. It is not for the tribunal to suggest to a professional representative, especially in such a long drawn out matter as this, what submissions he needs to make. The question before the tribunal was whether there had been discrimination on the part of the Council, not what Mrs Stewart's own individual reasons had been for the way she carried out her imperfect investigation.
11. The fourth main head of Mr Jankowski's submissions comprised a number of detailed points on the facts and evidence before the tribunal, which he said demonstrated that their findings as recorded in paragraphs 73 and 74 about the inadequacy of the investigation were open to question, and therefore should be set aside as perverse and erroneous in law. Examples were that the tribunal's stated reasons failed to refer to evidence given by Mrs Stewart that her time had been limited, that the Applicant's related complaints of unprofessional conduct had been investigated in no better way than those of race discrimination, and that (as recorded by the tribunal themselves in paragraph 24 (i)) Mrs Stewart had spoken to Ms Ellis on 24 April 1998 about her grievance complaint against Mrs Collander-Brown, though not by way of full interview in the context of the complaints investigation referred to in paragraph 73.
12. All of the points taken by Mr Jankowski under this head of his submissions appeared to us to relate to detailed matters of fact and evidence before the tribunal, which were for them to assess and balance up in reaching their conclusion. None appeared to us to give any arguable ground for saying that on the totality of the evidence the tribunal was disentitled to make the findings and draw the inferences they recorded as to the existence of less favourable treatment on racial grounds, or to invalidate the conclusion they arrived at. It has been emphasised many times that it is not the function of an appeal to the EAT on law to pick over individual points on the evidence in excessive detail, or for us to infer some error of law on the part of a tribunal from its omission to mention every single piece of evidence expressly: plainly an impossible task in a case involving such lengthy and detailed evidence as this.
13. Fifthly, Mr Jankowski submitted that the tribunal had erred in that their stated conclusions on the direct discrimination issues had failed to pay any express regard to the well established principle laid down in such cases as Zafar v Glasgow City Council [1998] IRLR 36 and Fire Brigades Union v Fraser [1997] IRLR 671, that unreasonable or incompetent behaviour on the part of an employer does not of itself amount to discrimination even though the effects may be adverse, and in every case where discrimination is to be found there must be proper grounds for inferring that it is on a race- or gender- related grounds. We see no ground for inferring against the tribunal that they ignored this thoroughly well known and well-established principle in reaching the conclusion they did. The two cases referred to are recorded expressly in paragraph 29 of their stated reasons, as the first of the 18 listed authorities to which Mr Jankowski had expressly referred them, and the fact that they did not refer back to these expressly (or to the submissions on the point Mr Jankowski told us he had included in a 29-page written submission made to the tribunal) does not begin to provide a ground for the suggestion that they were disregarded by the tribunal in arriving at their decision on the facts.
14. Next, Mr Jankowski developed his submissions that the tribunal had erred in finding in paragraphs 76-77 of their stated reasons that the delay in carrying out the grievance investigation involving Mrs Collander-Brown had been less favourable treatment of the Applicant on the grounds of her race. Under this head he advanced similar arguments to those already dealt with above in relation to their findings on the complaints investigation in paragraph 74. On similar grounds, Mr Jankowski said the tribunal's findings in paragraph 77 that the failure to progress the grievance procedure properly amounted to less favourable treatment than that accorded to Ms James, and the inference they drew from the nature of the complaint and the circumstances that this had been on racial grounds, were defective and erroneous in law. For the same reasons as those set out above we reject those submissions. The tribunal were in our judgment entitled to hold that Ms Ellis was less favourably treated than Ms James in the failure to progress the grievance procedure properly her case and to infer, from the fact that the principal complaints were of race discrimination and that it was the Applicant who was making them, that this was on racial grounds.
15. Mr Jankowski also complained of a breach of natural justice under this head, in that the tribunal had not made it explicit to him in the course of the hearing that they might be drawing inferences from the prolonged delay while some ineffectual arrangements for mediation were attempted at the behest of a Mr Fairbairn, referred to in the tribunal's findings above. Had he realised this, Mr Jankowski said he could have made submissions on it or called further evidence from Mr Fairbairn as to the reasons for what went on. Again, we cannot see that this gives an arguable ground for invalidating the tribunal's conclusion. The discrimination they found was on the part of the Council, in the form of the failure to progress the grievance procedure properly; and that was beyond doubt. As they expressly recorded in paragraph 78, they found the blame for the delay "must lie at the door of the Council. It is the Council who are masters of their own procedures, and it is the responsibility of management to see that the procedures are adhered to". Evidence from Mr Fairbairn, as to why he or Mrs Stewart individually had or had not done things at any point in the overall period under consideration, would not invalidate that conclusion. What was correctly regarded by the Tribunal as relevant was the discriminatory effect of the way the Applicant was treated by the Council, not what was in the minds of individual employees acting on its behalf.
16. Finally, Mr Jankowski submitted that the tribunal had erred in failing to make adequate findings or state adequate reasons to support their finding of discrimination against the Applicant in Mrs Collander-Brown having failed to provide her with any opportunity for course counselling work in the Autumn of 1998. In addition to the finding in paragraph 69 above that Mrs Collander-Brown's attempts at explanation for this had been unsatisfactory and unconvincing, Mr Jankowski drew attention to what they said in paragraph 24(14). After noting that allocation of this work was "standard at the beginning of every academic year", that the Applicant was an experienced tutor with proper qualifications and that Mrs Collander-Brown could not explain why she was not offered this work, the Tribunal added "We find that Mrs Collander-Brown's failure to offer this work was a reflection of the poor personal relationship then existing between her and the applicant. We did not find Mrs Collander-Brown's attempt to explain her failure to offer counselling work to Ms Ellis to be at all convincing. Counselling work was offered to white Tutors."
17. Mr Jankowski submitted that despite the obvious implications of what was there said, the tribunal's only finding was that there had been a poor personal relationship between Mrs Collander-Brown and the Applicant and this was insufficient to warrant an inference of discrimination on racial grounds. We do not agree. It is plain, from even the extracts we have recorded from the mass of factual material referred to in the tribunal's Extended Reasons, that questions of racial discrimination were at the heart of the breakdown in relationships between the Applicant and Mrs Collander-Brown. Putting the two paragraphs together we do not think any reasonable person could be left in doubt why the tribunal thought it right to draw the inference they did in paragraph 69. That inference is both explained and justified by the finding that this work had been offered to white tutors and not the applicant, in the absence of any credible explanation. Mr Jankowski sought to say that the tribunal's decision was defective in failing to identify the particular white tutors who had been offered counselling work but that appears to us beside the point: the tribunal's findings leave no room for doubt that there had been a failure to offer the work to the Applicant when it had been allocated to white tutors in circumstances that were comparable. Consequently we reject Mr Jankowski's submissions on that head of discrimination as well.
18. After considering all the submissions made to us (in considerable detail, in lengthy oral argument with reference to 12 pages of written skeleton argument and a 10-page Notice of Appeal) we have not been persuaded that any arguable ground has been shown to invalidate the conclusions and inferences arrived at by the tribunal. Those are in our judgment clearly and adequately explained in their very comprehensive statement of reasons and do not embody any error of law.
19. In such a complex and long-drawn out matter it is hardly surprising that one side or the other may consider there is more to be said on individual points of detail or emphasis, or particular aspects of the evidence they might have wished to see referred to more specifically in the tribunal's decision. But such matters of detail are outside the proper scope of an appeal to the EAT which is confined to material questions of law. We note the criticism with which the tribunal concluded their statement of reasons, of what they described as "a total lack of proportionality" in the way the case on both sides had been presented. We consider it would be a disservice to all involved if we now allowed it to go forward for a further attempt to reopen and pick over, yet again, detailed matters in the factual evidence and the inferences to be drawn which have already been the subject of careful and conscientious consideration by the Employment Tribunal. We consider those matters have been properly disposed of by the tribunal and we accordingly now unanimously dismiss this appeal.