United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR THOMAS KIBLING (of Counsel) Instructed by: The Commission for Racial Equality Third Floor Lancaster House 67 Newhall Street Birmingham B3 1NA
For the Respondents	MR SEAN JONES (of Counsel) Instructed by: Engineering Employers Federation Broadway House Tothill Street London SW1H 9NQ


 


JUDGE PETER CLARK

1. Mr George Madden, who is of Irish national origin, was employed by the First Respondent Company, of which the Second Respondent, Mr Michael Guest was their Development Manager, from 22 February 1993 until his summary dismissal on 23 February 1998.
2. Following dismissal he presented an Originating Application to the Birmingham Employment Tribunal on 30 March 1998, complaining of racial victimisation, unfair dismissal and wrongful dismissal. By the end of a 7 day hearing which took place before a Tribunal chaired by Mr D Hewitt, he had added a claim of direct racial discrimination, as appears from the written closing submissions presented to the Tribunal by Mr Kibling, who appeared below.
3. By a decision with extended reasons promulgated on 13 August 1999 the Tribunal upheld the complaints of both unfair dismissal and wrongful dismissal brought against the company. There is no appeal by the company against those findings. Questions of contribution and remedy were adjourned. As to the complaints brought under the Race Relations Act 1976 the Tribunal dismissed those against Mr Guest and record, at paragraph 2 of their decision:

"The complaint of race discrimination (racial victimisation) against the first respondent fails and is dismissed."

It is against the Tribunal's findings under the 1976 Act that this appeal is brought.

4. We think it unfortunate that in their reasons the Tribunal did not clearly set out the principles of law applicable to both direct discrimination and victimisation under the 1976 Act. Instead, having set out their findings of fact and dealt with the claims of unfair dismissal and wrongful dismissal they express their conclusions on the race aspect of the complaint compendiously at paragraph 11 of their reasons thus:

"11 Finally, there is the complaint of race discrimination based on racial victimisation. It is for the applicant to satisfy the tribunal that he received less favourable treatment than others and, if so, whether that less favourable treatment was consistent with it being on the grounds of race or nationality. We have found a number of matters about which the applicant had cause to complain. However, many employees are treated less favourably than others as evidenced by findings of unfair dismissal by Employment Tribunals day in and day out. It does not necessarily follow that less favourable treatment is on the grounds of race or nationality. This [sic] a case that is pursued on the basis of racial victimisation because the applicant is Irish. The tribunal has considered very carefully all the evidence in this case (both oral and in the voluminous documentation supplied) and cannot find a shred of evidence to support the suggestion that any less favourable treatment was on the grounds of race. The complaint fails at this hurdle and is dismissed."

5. The Law

Direct Racial Discrimination

By section1(1)(a) of the Act it is necessary for the Appellant to show:

(1) that he has been subjected to less favourable treatment than an actual or hypothetical comparator and

(2) that he was treated less favourably on racial grounds, see Zafar v Glasgow City Council [1998] ICR 120.

6. Victimisation

Under section 2 of the Act:

(1) has the Appellant done a protected act or acts?

(2) was the Appellant treated less favourably than others who had not done the protected act, and if so

(3) was the conduct of the Respondent or Respondents significantly caused by the knowledge of the protected acts. Nagarajan v London Regional Transport [1999] ICR 877. Conscious or deliberate motivation on the part of the Respondents is immaterial for the purposes of both causes of action.

7. The Appeal

Mr Kibling submits that the Tribunal's reasoning at paragraph 11 confuses and conflates the separate statutory requirements for direct discrimination and victimisation, and has failed to give adequate reasons for its conclusion that both claims under the 1976 Act failed. In particular:

(1) Although the Tribunal made certain findings of fact indicating that the Appellant was treated differently from other employees during the disciplinary process carried out by the Respondents, they failed to identify them in their conclusions by reference to the relevant comparators, that is, those of a different nationality or ethnic origin for the purposes of the direct discrimination claim and those who had not done a protected act for the purposes of victimisation.

(2) They failed to make a specific finding that the Appellant had done one or more protected acts, although we see at paragraph 4(c) of their reasons the Tribunal record that on 24 December 1996 the Appellant presented a complaint of race discrimination against the company, which complaint was dismissed following a hearing at Birmingham on 21 July and 27 November 1997.

(3) For the purposes of each complaint under the 1976 Act the Tribunal failed to analyse the facts as they found them in order to ask themselves the necessary questions raised by the statutory provisions, applying the guidance in connection with claims of direct discrimination to be found in King v Great Britain China Centre [1992] ICR 516, 528  E - 529C, per Lord Justice Neill, approved by the House of Lords in

Zafar, and in the judgment of Mr Justice Mummery in Qureshi v University of Manchester (EAT/485/95 Unreported). As to the claim of victimisation we should add that further assistance is to be derived, following Nagarajan, from the Court of Appeal decisions in Chief Constable of West Yorkshire v Khan [2000] IRLR 324 and Brown v TNT [2000] 20 Law Society Gazette Report 43.

(4) No mention is made by the Tribunal in their reasons of the CRE Code of Practice on which the Appellant relied.

8. Faced with these powerful submissions Mr Sean Jones concedes that as to the complaint of victimisation the Tribunal has, at the least, failed to address the question as to whether the less favourable treatment found was by reason of the Appellant's protected act or acts (no finding having been made as to precisely what was or were the relevant protected acts) as opposed to being on racial grounds. In these circumstances he accepts that the question of victimisation must be remitted for reconsideration, he submits by the same Employment Tribunal.
9. However, he has sought to persuade us that there are sufficient findings in paragraph 11 of the reasons to support the Tribunal's conclusion that direct racial discrimination is not made out in this case. We think that there are a number of difficulties with that submission, namely:

(1) the Tribunal's reasons and decision on its face, demonstrates that the Tribunal, despite clear and seemingly uncontroversial closing submissions on the law in writing from Mr Kibling below, has patently failed to distinguish between the two separate causes of action.

(2) There are no clear findings:

(a) as to the less favourable treatment found by the Tribunal, based on their findings of primary fact;

(b) as to which actual or hypothetical comparators they have used;

(c) as to what explanation was put forward for the less favourable treatment by the Respondents, and whether such explanation was considered adequate or not by the Tribunal, and

(d) whether the Tribunal considered whether or not they should draw the inference of unlawful discrimination and if so, why they declined to do so.

(3) The Tribunal has a duty to give adequate reasons; to tell the parties why they have won or lost and to allow this Appeal Tribunal to see whether or not there is any error of law in their approach. In our judgment this Tribunal's reasons in paragraph 11 fail on all those counts.

(4) There is no indication as to what principles of law the Tribunal has applied to the facts in reaching the conclusion that they:

"cannot find a shred of evidence to support the suggestion that any less favourable treatment was on the grounds of race."

10. In these circumstances we accept Mr Kibling's submission that both direct discrimination and victimisation questions must be remitted to the Tribunal for reconsideration. Initially he resisted those questions returning to the same Tribunal. He has now, we think sensibly, on reflection and on instructions, dropped that objection. Accordingly we shall allow this appeal, remit the case to the same Employment Tribunal, if that is practicable, to consider the questions of direct race discrimination and victimisation as a matter of liability and also the outstanding questions of contribution to the unfairness of the Appellant's dismissal and remedies for unfair dismissal and wrongful dismissal, subject to their further findings as to liability on the 1976 Act complaints.