United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S NEAMAN (Of Counsel) Instructed by Mackrell Turner Garrett Inigo Place 32 Bedford Street Strand London WC2E 9EY
For the Respondent	THE RESPONDENT NEITHER PRESENT NOR REPRESENTED


 


JUDGE REID QC

1. This is an appeal against the decision of an Employment Tribunal at London (North) which was promulgated on 26 June 2000. The findings which the Tribunal made, which were expressed to be unanimous, so far as relevant are these: that the First and Second Respondents, that is to say the first and second Appellants here namely Westmount Housing Association and Mr J Silverman, discriminated against the Applicant, that is Mrs Hughes, on racial grounds and were ordered to pay her damages as follows:

(1) Westbound Housing Association, £23,980; and

(2) Mr John Silverman, £800; and

In addition by a majority decision of the Tribunal it was held that the Third Respondent, that is to say, Mrs T Silverman also discriminated against the Applicant on racial grounds and she was ordered to pay her £200 by way of damages.

2. The background to the case is this. Mrs Hughes the original Applicant is a black African born in Ghana in 1937. On 2 August 1999 she was employed as Relief Head of a Jewish Residential Care Home for the Elderly by Westmount. She was dismissed on 8 November 1999 there having been no disciplinary hearing although there were procedures in place which suggest there should have been. The reasons that she was given for her dismissal were set out in the letter of 8 November in these terms:

"Dear Tallulah

I feel unfortunately, that you have not measured up to my standards at Westmount. It is also my opinion that you have not fitted into the team as well as I had hoped.

Therefore, with regret, I have taken the decision to terminate your employment with us effective from the date of this letter.

You are entitled to a month's notice and in the circumstances this will be paid as one month's salary in lieu of notice paid gross. You are entitled to seven working days holiday pay. Holiday pay is taxable and so you will receive this sum net.

I regret the need to take this decision and hope you will find alternative employment."

That letter was signed by Mr Silverman.

3. The complaints that were made as a result of the dismissal arose so far as the Association and Mr Silverman are concerned from the dismissal itself and it was asserted by the originating application that the Applicant had been treated less favourably on the grounds of her race and wrongfully dismissed by Westmount through Mr Silverman. So far as the complaint against Mrs Silverman is concerned, it arose out of a variety of incidents where it was suggested that she, the Applicant, had been subjected to verbal abuse (to quote the originating application) "of a racial context".
4. We will deal first with the claim as against the Association and Mr Silverman. In relation to this the finding of the Tribunal was set out at paragraphs 15 through to 19 of the decision and it is in these terms:

"15 Here the matter which has given us greatest concern has been the difference in treatment accorded to the Applicant and that accorded to Mrs Blake. (Mrs Blake had been a predecessor in the Applicant's position) The latter was considered to have committed a serious offence of dishonesty by misappropriating funds and was given a disciplinary hearing and a final warning. When she committed another such offence, she was given a further disciplinary hearing before being dismissed. The Applicant was only considered to have been guilty of inappropriate conduct and possibly incompetence, yet she was never given the opportunity of a disciplinary hearing, despite the provisions for one in the Respondent's disciplinary procedure. She was not given any warning or assistance with a view to improving her conduct. Mrs Blake is a white Irish person, whereas the Applicant is a black Ghanaian. There was therefore a difference of race and a difference of treatment.

16 Guidance note (4) says that in such circumstances the Tribunal should look to the employer for an explanation. It goes on to say that if no explanation is then put forward or the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds. We appreciate that we are not bound so to hold.

17 In the present case Mr Silverman has told us why he decided to dismiss the Applicant but has not offered any or any adequate explanation as to why she was not given assistance to improve her performance or a disciplinary hearing before she was dismissed.

18 In these circumstances, all the members of the Tribunal consider it proper to draw the inference that the Applicant was discriminated against on racial grounds when she was dismissed without the benefit of the Respondent's disciplinary procedure. We would accept that Mr Silverman was not consciously discriminating against her on such grounds but consider that he did so subconsciously. That, however, makes no difference to our finding.

19 As Mr Silverman was the Chief Executive of the First Respondent, he was clearly its agent and consequently we hold that, by virtue of s.32(2) of the Act of 1976, the First Respondent is vicariously liable for his acts."

5. The problem with that finding, submit the Appellants, is that the finding is based almost entirely on a comparison between the way in which the Applicant below was treated and the way in which Mrs Blake her predecessor had been treated. But it is submitted that the Tribunal could not have properly so found because it had held at an early stage in the course of the hearing that Mrs Blake was not a comparator. The way in which that holding is said to have been made is that an application was made on behalf of Mrs Hughes for discovery of a documentation relation to Mrs Blake and her dismissal. That application was dismissed. The submission had been on behalf of the Respondents below, Appellants here, that the two cases were not comparable and therefore Mrs Blake could not be a comparator for Mrs Hughes.
6. The decision as noted as by one the solicitors on behalf of the Respondents below who was present at the hearing was in these terms:

"The 2 cases are not comparable. We refuse the application and no order is made for discovery. This is a unanimous decision."

According to the trainee solicitor there present, the decision recorded rather more briefly was "Not comparable, unanimous. The application declined."

7. According to the Chairman's note made time, it was submitted the previous employee was Irish and white, defined as an ethnic majority. "Tribunal members withdraw, on return application refused on grounds of two cases, not comparable so the other is not relevant. Therefore no discovery ordered."
8. Surprisingly, almost a year later when asked for his notes of the hearing by the Employment Appeal Tribunal the Chairman not only sent that note but also a comment which begins:

"I feel that the above note, made hastily in the interests of getting the proceedings started does not accurately record the Tribunal's reasons for its refusal.

It was made quite clear to the parties that the reason for not ordering the discovery of the documents relating to the two disciplinary hearings held in regard to Mrs Blake was that it was unnecessary to put the Respondent to the trouble of providing copies of those documents."

Then goes on to say that certain matters were a matter of agreement relating to her dismissal.

9. The two members of the Tribunal wrote letters dated respectively the 6 March and 28 April in which they agree with the Chairman's comments. To complete matters Mrs Hughes eventually on 23 April made a witness statement in which she says:

"For the avoidance of doubt it is not accepted that the reason why the Tribunal did not make a decision to allow the order for specific discovery was that Mrs Blake was not a comparator. On the contrary I believe it was implied from the terms of the order made at the full merits hearing that Mrs Blake was accepted by the Tribunal as a Comparator.

It is also accepted by both parties that the Respondent's Counsel Mr Uduje made several references to Mrs Blake as a comparator and it was clear from the nature of the proceedings that the Tribunal was also willing to consider her as a comparator for the purposes of inferring incidences of racial discrimination."

10. The position therefore, unhappily, was that the Tribunal having apparently made a decision and communicated the decision that Mrs Blake was not a comparator, later on in the hearing (and it is worth noting that the hearing was spread over four days, namely the 1 March, 2 and 4 and 31 May 2000) appears to have changed its mind about Mrs Blake being a comparator. It did so without inviting any submissions as to what was in effect a review of an earlier interlocutory decision at the Tribunal's own motion and without giving the opportunity to the Respondents below to adduce evidence to show why Mrs Blake was not a comparator.
11. It was submitted to us that the Tribunal having made a ruling that Mrs Blake was not a comparator could not thereafter change its ruling, we should simply go on and hold that the Tribunal erred in saying that Mrs Blake was a comparator, and that therefore their decision was unsustainable. It was said that because there was no appeal against what was characterised as an interlocutory decision that Mrs Blake was a comparator we should hold that on the material available to the Tribunal and in the light of their interlocutory decision the case of discrimination had not been made out.
12. In our judgment clearly the decision of the Tribunal on this part of the case cannot stand. Whatever may have been going through the minds of the Tribunal at the time (and it is surprising that they had a clear recollection for or contrary to the Chairman's note almost a year later) it is clear that what was expressed was a decision that Mrs Blake was not a comparator. It is equally clear that either because of a deliberate change of mind or because of having forgotten the reasons given for that interlocutory decision, the Tribunal then wished to go back on it and consider her as a comparator. In those circumstances we take the view that the Appellants here could not be said to have had a fair hearing, and therefore, as we have said, the decision must be discharged.
13. However, we are not satisfied that we can then go on and simply allow the appeal, reversing the decision of the Tribunal. What the Tribunal evidently wished to do (as they would have been entitled to do) was to review their earlier decision. Regrettably, they did this without notice to either party, without hearing argument as to how their decision should be reviewed and without allowing the Appellants any opportunity to call evidence. In our view, the only safe method of dealing with this part of the appeal is to remit the case to a different Tribunal. It would be wholly inappropriate to remit it to the same Tribunal and leave that Tribunal to decide, given the admitted facts and without needing any further discovery, whether or not Mrs Blake was a comparator. Nor could it be asked to rehear the case generally so far as that part is concerned. Therefore, so far as the Association and Mr Silverman are concerned we allow the appeal but remit the case to be reheard by another Tribunal.
14. The position so far as Mrs Silverman is concerned is different. The decision against her was by a majority, the two lay members. It is plain from the reasons that the Tribunal decided that Mrs Silverman had been present during the hearing but had elected not to give evidence. Mr Silverman had given evidence and told the Tribunal that his mother would not be giving evidence, that she was 78 years of age and that the Respondents took the view it would not be appropriate for her to do so. She was in fact represented by Counsel although the opening words of the decision entirely inaccurately record the Third Respondent, although present during part of the hearing, played no part in it and was not represented.
15. The position so far as this was concerned was that an elderly lady did attend part of the hearing. It was not Mrs Silverman. The Tribunal chose to infer that simply because an elderly lady was sitting at the back and appeared to have been giving instructions it was indeed Mrs Silverman. It was not. It was another lady with a position of authority with the Association. Quite how the Tribunal, if they thought that this was a matter of some importance, could have seen fit not to inquire whether the lady was Mrs Silverman or not is, to say the least, obscure.
16. In any event, having formed the view that Mrs Silverman was present and chose not to give evidence and absented herself to avoid giving evidence, the Tribunal then effectively discounted the evidence put in by way of a statement from her. In our judgment this decision is plainly vitiated by the fundamental error which the Tribunal made in deciding wrongly that Mrs Silverman was present and had chosen not to give evidence. That would be enough to cause the matter to be remitted to the Tribunal but in our judgment in this instance we can go further than that because in our judgment even if the than the facts founding what are said to be the three instances of discrimination were as a Tribunal took them to be they do not found a case for discrimination.
17. The three areas in which they found were discrimination were as follows: first, in relation to a conversation between, it is said, Mrs Silverman and the head of the Home, a Mrs Fernando herself a member of an ethnic minority. The evidence that the Tribunal managed to accept was that the Applicant during her first week of employment overheard Mrs Silverman ask Mrs Fernando:

"Can that black woman, what do you call her Tallulah, do this job?"

to which Mrs Fernando replied:

"Don't say that, she's more qualified than I am."

18. The Tribunal chose to disregard or disbelieve Mrs Fernando's evidence that she had known Mrs Silverman for four years and never known her to make any racial disparaging remarks or comments concerning the Applicant or anyone else, that she had asked how Tallulah was getting on but did not refer to her as "that black woman" and that she, Mrs Fernando, would have found such a remark objectionable. There is no evidence nor has it ever suggested that the remark was made either deliberately so that Mrs Hughes, the Applicant, would hear it or with a view to it being passed on to her and indeed it was not passed on to her. In those circumstances it seems to us plain that the Tribunal misdirected itself in failing to take account of the decision in De Souza v Automobile Association [1986] ICR 514 in particular at page 524 in which May LJ with whose judgment Slade and Neill LJJ agreed, said this:

"What then is the result when these principles are applied to the instant case? First, even though the use of the insulting word (I say in parenthesis the word was 'wog') in respect to the employee may have meant that she was being considered less favourably, whether generally or in an employment context, than others, I for my part do not think that she can properly be said to have been "treated" less favourably by whomsoever used the word, unless he intended her to overhear the conversation in which it was used, or knew or ought reasonably to have anticipated that the person he was talking to would pass the insult on or that the employee would become aware of it in some other way. I do not find any sufficient findings of fact to this effect by the industrial tribunal."

Here there was no such finding of fact and in our judgment therefore that first incident cannot found any decision that there was discrimination.

19. So far as the second incident was concerned, this related to an incident where Mrs Hughes had been called away from the office to attend to a resident at a time when the office safe was open. She asked one of the carers identified as Syria to stay in the office and watch over the safe. On her return she found that Syria was not watching the safe. Mrs Silverman was present and Syria had been sent out. Mrs Silverman, when Mrs Hughes reprimanded Syria for having left, put her finger to her lips implying that Mrs Hughes should stop reprimanding Syria, and told her that as she did not know Syria she should not have left her to watch the safe unattended in the office. The finding in relation to that was that in that incident Mrs Silverman had discriminated against the Applicant on racial grounds and the majority of the Tribunal say that in the absence of an explanation as to why Mrs Silverman countermanded Mrs Hughes' instructions about watching the safe and told Syria to do something else they consider it legitimate to draw an inference of racial discrimination on the part of Mrs Silverman.
20. With all respect to the Tribunal there is a perfectly good explanation. Mrs Silverman clearly did not regard Syria as being an appropriate person to have to watch over an open safe and she quite sensibly decided to watch over the safe herself. She sent Syria out. She therefore very properly told Mrs Hughes that she should stop reprimanding Syria and properly drew the attention of Mrs Hughes to the fact that she should not have left someone she did not know in charge of an open safe. In the view of the Employment Appeal Tribunal it cannot conceivably be said that this was an act of discrimination and the decision that it was perverse.
21. So far as the third matter is concerned, the finding of the majority of the Tribunal is that they consider that Mrs Silverman discriminated against the Applicant on racial grounds "…again in the wages incident on 29 October." This finding has caused us some puzzlement. The only findings of fact relating to 29 October so far as we can see relate to an incident involving Mrs Appleton and a further incident which is recorded in these terms:

"In the middle of the morning the Applicant suffered menopausal bleeding and left the Home for about two hours in order to go out first to a chemist and then home to change her clothing. When she returned, she found Mrs Silverman and Mr Briggs, the handyman, making up the wages, a task normally carried by the Head of Home or in her absence, the Relief Head of Home. Mrs Silverman and Mr Briggs later reported to Mr Silverman that the Applicant had shouted abuse at them, which she denies. This is another matter which Mr Silverman had in mind when he interviewed the Applicant on 1 November."

22. It is wholly unclear from the findings what could be said to be discriminatory about that matter. There does not appear to be any finding that Mrs Silverman and Mr Briggs made up a story as a result of prejudice against the Applicant on grounds of her colour that she had shouted abuse at them when she had not. There appears to be nothing else on which any finding of racial discrimination could be based and this finding too we regard as being clearly perverse.
23. In those circumstances so far as Mrs Silverman is concerned we will allow the appeal. We dismiss the application so far as she is concerned. We do not think this is something which should be remitted to another Tribunal. The appeal will therefore be allowed with the consequences that so far as the claim for discrimination against the Association and Mr Silverman are concerned that will have to be reconsidered by a different Tribunal who will have a proper opportunity to determine whether or not Mrs Blake was a proper comparator and if they determine that she is a proper comparator the opportunity properly to consider the evidence which the Association and Mr Silverman will then have the opportunity to present to them. So far as Mrs Silverman is concerned the appeal is allowed and the application as against her is dismissed.