United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS G WHITE (of Counsel) Treasury Solicitor Queen Anne Chambers 28 Broadway London SW1H 9JS
For the Respondent	MISS MONDAY (of Counsel) Plumstead Community Law Centre 105 Plumstead High Street London Se18 1SB


 


HIS HONOUR JUDGE WILKIE QC

1. This is an appeal by the Ministry of Defence (MOD) against one significant element of the award made by the London South Tribunal on 3 October 2000 in favour of Mrs Moitra, being compensation for unlawful racial discrimination.
2. The finding of discrimination had been made at the same Tribunal after a hearing of 2 days, respectively, 31 July and 1 August 2000. Essentially the position had been that Mrs Moitra had been employed by the MOD as a nurse at Victoria House. Circumstances had arisen which caused Mrs Moitra to be unhappy working at Victoria House. She had made various complaints of racial harassment. Those complaints were never investigated to her satisfaction. In March 1997 she had been offered the opportunity to transfer to work at Chelsea Barracks where she worked until April 1999 when the medical facility at those barracks was closed. Mrs Moitra was then sent home on full pay whilst the Appellant considered what to do with her. The Applicant's file was passed to Mrs Graham, the MOD's Human Resources Manager.
3. In May 1999 a vacancy arose at Victoria House. Mrs Graham took steps with a view to seeing whether Mrs Moitra might be transferred back to work at Victoria House. This was not greeted with acclaim, apparently, by Dr Patel and 3 white nurses at Victoria House, who apparently expressed concern about Mrs Moitra's clinical competence and were concerned at the prospect of her returning. There then followed a meeting on 22 June 1999 between Mrs Moitra and Mrs Graham. The outcome of that meeting was that Mrs Moitra did not return to Victoria House and as a result was not paid after the date of 30 June 1999, being the date when it was anticipated she would have started to work at Victoria House.
4. The Tribunal concluded that the decision to require Mrs Moitra to return to Victoria House was not itself unlawful discrimination but it did conclude that the manner in which Mrs Graham had sought to implement that decision was unlawfully discriminatory. In particular, the Tribunal found that Mrs Moitra was treated less favourably than the 3 white nurses at Victoria House. That was because the approach of Mrs Graham seemed exclusively to focus on Mrs Moitra as the problem to be addressed rather than approaching the matter in an even-handed manner taking both sides as essentially the potential source of problems and addressing the need for all to work happily together equally to both sides in the perceived potential dispute. It was on the basis of that finding of less favourable treatment, the inadequacy of the explanation for that approach put forward by Mrs Graham, that the Tribunal drew an inference that the distinction in treatment was on the grounds of race so that her complaint succeeded.
5. One of the heads of compensation sought was loss of earnings from 30 June 1999 which in turn derived from the fact that Mrs Moitra had not gone back to work at Victoria House as she had been required to do. It is apparent that at the remedies hearing one of the main issues between the parties was whether or not Mrs Moitra would have returned to Victoria House had Mrs Graham approached the matter properly, and had addressed the concerns which the Applicant had raised. On the one hand, the MOD were arguing that there was material upon which the Tribunal could conclude that Mrs Moitra had a closed mind on the question of her return to Victoria House and therefore would not have done so even had she been treated properly. On the other hand Mrs Moitra was taking the different view namely, that if properly treated then the likelihood was that she would have returned.
6. The conclusion of the Tribunal was expressed, pithily, as follows:

"Our finding was that as a balance of probabilities the Applicant would have returned to Victoria House if the matter had been approached differently."

Therefore compensation was assessed on the basis of the totality of Mrs Moitra's loss of earnings from 30 June 1999 until a date beyond the date of the remedies hearing namely,
31 December 2000. The Tribunal considering that after that date she may be able to find nursing work, given her high level of qualification and experience. That resulted in a figure of £18,693.54 under that heading. It is that element which the MOD appeals.

7. The point is a very short one. We have been addressed ably and helpfully by both Miss White, for the Appellant, and Miss Monday, for the Respondent to the appeal. We mean no discourtesy to either of them if we deal with their submissions briefly. Each of them has referred us to very helpful passages in all the leading authorities. Essentially the point is this. Miss White says that the Tribunal has made a fundamental error in its approach. It was not concerned with making a finding of fact as to what had already happened. It was concerned to carry out an assessment of what might have happened had an appropriate course been adopted by Mrs Graham. The proper approach for such an exercise is not to make a finding of fact on a balance of probabilities but is to carry out an assessment of the chance that a certain outcome may have occurred. Normally, that would involve a percentage assessment. It may be that in an appropriate case, a percentage assessment of 100% would be appropriate. Sometimes there are circumstances, particularly where what is being assessed is the chance that something might happen at some point in the future, where a pure percentage assessment will not be appropriate. In such cases it may be more appropriate for the Tribunal to conclude that after a certain period of time they were satisfied that something would be certain to happen. However one cuts it, Miss White argues, it is plain that this Tribunal was not engaged in the assessment of a chance but rather was engaged in finding a fact as to which they took the approach that they had to make that finding of fact on a balance of probabilities.
8. Miss Monday has in a sense been very much put on the back foot by the way in which this Tribunal expressed itself. Her submissions have been put in the alternative. One alternative is that really what they were doing was making an assessment of a chance which was 100%. The alternative was to say that if it was not at 100% assessment then it was the kind of assessment of a chance which does not fall to be made readily by reference to a percentage. Indeed it is right to say that a Tribunal does not err in choosing not to express their assessment of the chance in percentage terms.
9. We are, however, unpersuaded by her attempts to save this aspect of the Tribunal's reasoning. The one thing that this Tribunal has done is to express itself clearly. It is clear that what it was doing was making a finding of fact on the balance of probabilities. It is equally clear that where one is assessing the chance of something happening in the future that is not the appropriate approach and that some different approach demonstrating that the process is one of assessing a chance is necessary. It therefore follows that the appeal succeeds. The question is - what is the appropriate course for us to take?
10. Miss Monday urges on us that we need do no more than remit the matter to the same Tribunal. Whilst we can see some attractions in this, we do think that it potentially puts that Tribunal in an invidious position, its approach to this issue having been revealed as fundamentally wrong. We do not think that it would be inappropriate for this single issue to be looked at afresh by a differently constituted Tribunal which would come to the exercise knowing what is the correct approach that it is required to take and therefore free, against the background of findings which have already been made, to consider this isolated question – 'What are the chances that Mrs Moitra would have returned to Victoria House had Mrs Graham adopted an appropriate and non discriminatory approach to persuading her to do so?' – therefore the Order of this Tribunal is that the appeal succeeds and this case is remitted to a differently constituted Tribunal on this sole question of remedy.