United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR JACK MITCHELL (of Counsel) Instructed By: Mr N Bone Messrs Higgs & Sons Solicitors Inhedge House 31 Wolverhampton Street Dudley West Midlands DY1 1EY
For the Respondents	MR EDMUND BEEVER (of Counsel) Instructed By: Birmingham City Council Legal Services Ingleby House 11-14 Cannon Street Birmingham B2 5EN


 


JUDGE J R REID QC:

Introduction

1. This is an appeal from a decision of an Employment Tribunal held at Birmingham over four days in 2000: the decision was sent to the parties on 14 February 2001. By its decision the Tribunal dismissed Mr Galloway's claims for race discrimination and victimisation against the Council and Mr Eastman, the Assistant Director of Transportation at the Council at the relevant time. Against that decision Mr Galloway appeals. The Tribunal held by a preliminary decision that has not been challenged that the relevant time frame to be considered for the purposes of Mr Galloway's claim that he had been discriminated against and victimised was from 22 July 1997 (the date he presented a grievance to the Council) to the date of his originating application (17 August 1998). The basis of the appeal is that the Tribunal erred in law in focusing its attention on the motives of Mr Eastman in acting as he did.

The facts

2. Mr Galloway was between 1992 and 1996 the one white man in a team of three working in the modelling team of the Council's Transportation Department. For various reasons he was required to carry out more than his fair share of the work of the team, including work assigned to the team leader Mr Mua. He took the view that Mr Mua and Mr Mngaza, the other two members of the team were allowed to underperform and permitted to get away with matters of misconduct because of their ethnicity and because Mr Haynes their manager was intimidated by Mr Mua. Matters came to a head when Mr Mua made a complaint of racially discriminatory behaviour against Mr Galloway in October 1996. Mr Eastman had by this time taken up his post, having been appointed in August 1996. In April 1997 Mr Haynes prepared a report after interviewing Mr Galloway. This concluded that disciplinary proceedings were justified. Mr Galloway took exception to the preparation of the report and to the way Mr Haynes had conducted his investigation and made a complaint against Mr Haynes making a wide variety of allegations. He made a formal grievance allegation to Mr Eastman on 22 July 1997. Mr Eastman referred the complaint to Mr Haynes for his comments and Mr Haynes submitted a written response on 20 August 1997, which coincided with the last day of the disciplinary hearing against Mr Galloway. At the conclusion of the hearing Mr Galloway was found guilty of racially discriminatory behaviour against Mr Mua and was given a written warning. By this time Mr Mua (who had been discovered to be teaching at a local school when he was supposed to be off work sick) and Mr Mngaza (who had been engaged in an outside selling organisation) had left the Council's employ.
3. The day after the decision of the disciplinary panel Mr Eastman saw Mr Galloway outside his office and called him in for an informal discussion. He had received Mr Haynes' written response to Mr Galloway's grievance allegations and had made inquiries himself. He had discovered that possible disciplinary action against Mr Galloway as a result of his poor attendance in 1997 had not been taken with the agreement of Mr Haynes. Mr Eastman raised with Mr Galloway the question of whether he still wished to continue with his grievance. Mr Galloway was uncertain at that stage and said words to the effect that he would have to think about the matter. Mr Eastman said to Mr Galloway words to the effect that he would not make any friends by continuing with his grievance. The tribunal accepted the words were said as a friendly warning, inviting the applicant to reflect on the personal cost of doing so in terms of continued stress, rather than as a veiled threat. Mr Galloway did not confirm his wish to proceed with the grievance after the initial discussion with Mr Eastman on 21 August 1996.
4. No action was taken by Mr Eastman to take any further steps to deal with Mr Galloway's grievance for a period of months. In the intervening period there was an improvement in the relationship between the members of the Transportation Department and there was also an improvement in Mr Galloway's health. However, by the end of the year he had obtained legal advice from his solicitors and decided to pursue a claim for personal injuries arising from the stress which he had suffered in the preceding years. The first direct contact with the Council following that decision was a solicitor's letter to a Birmingham City councillor, Mrs Stewart, on 26 February 1998 relating the symptoms he was said to be suffering as a result of the amount of work he had had to do for the Transportation Department. The letter also referred to the fact that the grievance brought by Mr Galloway did not appear to have progressed beyond an acknowledgement in August 1996. The issue of the grievance was not pressed any further. There was no suggestion that any delay was due to any discriminatory act on the part of Mr Eastman or any other employee of the Council. The penultimate paragraph referred to Mr Galloway preferring to retain his position with the Council but reserving the right to consider possible early retirement on grounds of health. Mr Eastman's explanation for not pursuing matters, apart from the fact that he was not specifically instructed that it was Mr Galloway's wish, was his belief that, after a period of turmoil within the Department and following the departure of the two members of the modelling team who had given rise to Mr Galloway's complaints, the most positive course of action, and the one that was in the interests of Mr Galloway's health, was to treat those events as past history which should not be allowed to detract from improvements in the future.
5. As a result of the solicitor's letter, the matter was referred to the Transportation Department and Mr Eastman arranged to see Mr Galloway on 20 April 1998. The conversation dealt with the issue of the outstanding grievance. It concluded with both parties agreeing that Mr Galloway was happy to leave things as they were without pursuing the matter. This conclusion was reflected in a letter of 23 April 1998 from Mr Eastman which reiterated the initial view formed by Mr Eastman the previous August, that the allegations against Mr Haynes did not raise any significant issues and it had been in the interests of Mr Galloway's health not to pursue a formal enquiry. However, Mr Galloway discussed the matter subsequently with his solicitors and decided that, within the context of his possible claim for personal injuries, he wished to pursue the grievance. He therefore wrote a letter on 22 April to Mr Eastman. That letter refers to the conversation on 20 April and to the fact that Mr Galloway was considering pursuing a claim for stress against the Council and stated that, notwithstanding his concerns over Mr Eastman's expressed view of there being relatively little substance to the claim, he wished to pursue the matter as if he did not do so it "may be seen as self doubt as to the merits of my grievance...".
6. In response, Mr Eastman then arranged for an informal meeting on 18 May with Mr Galloway and Mr Haynes. Mr Galloway did not take up the offer to have a trade union representative or colleague present. The meeting was accepted by Mr Galloway as an informal attempt to try and resolve his grievance against Mr Haynes. He rejected the opportunity for a formal disciplinary hearing to be arranged because he (incorrectly) believed that this would be chaired by Mr Eastman who had already made his mind up to reject his grievance. During the meeting, which was also attended by Mandy Lang from the personnel department, she asked Mr Galloway what was it that he wanted. Was he seeking an apology? Mr Galloway replied that he wanted compensation for the additional work and responsibilities he had accepted and for the discrimination which he had suffered. Mr Eastman agreed that he would provide Mr Galloway with a formal written response to his grievance. The response was by a letter of 28 May 1998 which reviewed Mr Galloway's concerns about the amount of work that he was required to do in the modelling team and the other personal difficulties from which he also suffered. It dealt with the occasions when Mr Haynes had involved himself directly in trying to resolve disputes between members of the team. It pointed out that disciplinary action had been taken against the other members of the team by Mr Haynes and that Mr Haynes had also supported attempts to obtain a regrade for Mr Galloway. In particular, Mr Eastman was critical of the applicant seeking compensation for additional work by using the grievance procedure against Mr Haynes. He described the approach as "distasteful". In his view Mr Galloway had tried to misappropriate the grievance procedure to support his attempt to obtain further financial reward. Mr Eastman then went on to reject the claim for additional payment on the grounds that this had been covered by an honorarium which Mr Haynes had obtained for Mr Galloway by way of pay increase without regrading. He dismissed the allegations of racial discrimination against Mr Haynes as being "unfounded". Mr Galloway exercised his right of appeal which was lodged on 12 June. The Originating Application was then lodged with the tribunal on 17 August before the hearing of the appeal.
7. During the period 22 July 1997 to 17 August 1998 five matters arose which Mr Galloway asserted amounted to direct discrimination. They were:

(1) The comment made by Mr Eastman on 21 August 1997 in his office when he told the applicant that he would not make many friends if he continued with his grievance against Mr Haynes and any inference which could properly be drawn from that comment.

(2) The failure of Mr Eastman to progress the applicant's grievance until prompted by the letter from Mr Galloway's solicitors in February 1998.

(3) The attitude adopted by Mr Eastman when seeing the applicant on 20 April 1998 to discuss his case in particular towards the applicant's grievance.

(4) The manner in which the meeting of 18 May 1998 was held at which the applicant discussed his grievance in the presence of Mr Haynes.

(5) The inferences to be drawn from Mr Eastman's letter of 28 May 1998 to the applicant rejecting his grievances.

8. The Tribunal's findings in relation to these complaints were as follows:

(1) So far as the first complaint was concerned, Mr Eastman regarded the disciplinary hearing against Mr Galloway and its conclusion as a catharsis. The warning given was as a friendly warning. Mr Eastman recognised that to continue the grievance would be likely to be injurious to Mr Galloway's fragile state of health and was persuaded as a preliminary view that the grievance did not have any real substance. In consequence, the motive suggested by Mr Galloway that Mr Eastman was trying to dissuade him from any further action because of his fear that it would disclose acts of discrimination against Mr Haynes was "inconsistent with the Tribunal's conclusion as to Mr Eastman's state of mind at the time of the meeting".

(2) So far as the second complaint was concerned, the Tribunal held the lack of progress was not because of any dubious motive on the part of Mr Eastman. It was consistent with both his wish to put the events of the previous twelve months behind the department and with the inactivity of Mr Galloway who had not confirmed his wish to proceed and who did not chase Mr Eastman up at any stage before the solicitor's letter which raised the matter in passing.

(3) As to the third complaint, the meeting was held in the way it was because Mr Eastman was concerned for the Department generally and for Mr Galloway in particular and saw no benefit in submitting him to a formal process which was likely to in crease his levels of stress. He was trying to act as a conciliator.

(4) On the fourth complaint, it did not appear to the Tribunal that the meeting had an unspoken agenda, either conscious or subconscious, that Mr Galloway had to be dissuaded in some way from pursuing his grievance because of the risk of discriminatory disclosures being made.

(5) On the fifth complaint the Tribunal found that the letter of 28 May was consistent with their analysis of what Mr Eastman was trying to achieve. It found that the nub, of Mr Galloway's complaint was the use by Mr Eastman of the word "distasteful" to describe his perception of the use of the grievance procedure for a purely financial end. This was not a comment which suggested Mr Eastman was behaving in a racially discriminatory manner towards Mr Galloway.

9. So far as his complaint of victimisation was concerned, Mr Galloway suggested that the way in which Mr Eastman approached the conduct of the grievance procedure was affected by the fact that the grievances related to allegations of race discrimination. Mr Mua's grievance of race discrimination had been progressed to a disciplinary hearing against Mr Eastman. The Tribunal rejected this, holding that Mr Eastman had been motivated by his wish to encourage a positive working environment, and that the difference of treatment between Mr Galloway and Mr Mua was not connected with race.

The Tribunal's treatment of the law

10. The Tribunal set out the material sections of the Act. It then went on to say that it took account of the oral and written submissions of both parties and the case law referred to: those cases included Nagarajan v London Regional Transport [1999] IRLR 572. The Tribunal then set out the well-known passage in King v The Great Britain-China Centre [1991] IRLR 513 at 518 which was approved by the House of Lords in Zafar v Glasgow City Council [1998] IRLR 36. It did not in the course of its conclusions specifically break down the question to be answered in respect of the direct discrimination claim into two parts as was described as convenient in Zafar by Lord Browne-Wilkinson at para 10. Nor did it expressly break down the questions it had to answer in respect of the victimisation claim into two parts: (1) was there less favourable treatment; and (2) if so, was the reason for it the doing of a protected act (see Lindsay v Alliance & Leicester plc [2000] ICR 1234 at 1254-5).

The Appellant's submissions

11. On behalf of Mr Galloway it was submitted that the Tribunal's approach was wrong in law. The Tribunal erred in placing so much emphasis on motive. If it had not done so, it would have concluded that Mr Galloway had been treated less favourably. In each case the Tribunal should have asked itself whether the same treatment would have been afforded to Mr Galloway if he had not been white. In the case of the second complaint the Tribunal should have asked whether Mr Eastman was objectively aware of the possibility of disclosure of a discriminatory act and, if he was whether if he had not been he would have treated Mr Galloway differently. So far as the fourth complaint was concerned the Tribunal should have asked itself whether Mr Eastman would have made the decision to have such a meeting with Mr Haynes present if Mr Galloway were not white. As to the fifth complaint the Tribunal should have considered whether the word "distasteful" would have been used if Mr Galloway were not white.
12. Counsel for Mr Galloway submitted that for direct discrimination it must be shown that his client received less favourable treatment on the grounds of his race. For victimisation he accepted that it must be shown that the less favourable treatment was by reason of him having done a protected act. The Tribunal should have asked itself separate questions in relation to the two different claims.
13. There was no need to show that the doing of the protected act was the legal cause of the victimisation. There was no need to prove that Mr Eastman was consciously or subconsciously motivated by an intention to discriminate. If a person is victimised because of unconscious or subconscious racial prejudice, that person is entitled to say that the action taken against him was on the ground of race. The question for the Tribunal is not what is the motivation for the treatment but whether the person would have treated someone of a different race in the same manner: see Chief Constable of West Yorkshire v Khan [2001] IRLR 830. The Respondent could not escape liability by showing an absence of intention to discriminate, provided that the necessary link in the mind of the discriminator between the doing of the acts and the less favourable treatment can be shown to exist. It is sufficient in a victimisation claim that the Respondent is aware of the existence of the fact that an employee has a protected right and then treats the employee less favourably than he would treat another not having a protected right. The existence of that right was not sufficiently considered objectively by the Tribunal. Discrimination by way of victimisation could occur subconsciously and might be found even if it were not the sole ground for less favourable treatment in the context of a protected act. The Tribunal had not considered whether if there was more than one cause whether one of the causes was Mr Galloway's race and that it was one of the reason for the treatment.
14. The Tribunal failed to have in mind Nagarajan v London Regional Transport and to remind itself that, a finding of direct discrimination did not require that the discriminator was consciously motivated in treating the complainant less favourably, regardless of the discriminator's motive or intention. The Tribunal did not consider how another person would have been treated which supports the proposition that they focused wrongly on the motivation and asked themselves the wrong question, and so erred in law in much the same way as the Tribunal in the Lindsay case.

The Respondents' submissions

15. Counsel for the Respondents accepted that it would have been better if the Tribunal had expressly spelt out the different questions which it was answering, but said that a proper analysis of the decision revealed there was no error of law. The Tribunal had considered the two different claims, direct discrimination and victimisation separately. It had felt able to answer the composite questions posed questions in respect of the two issues and had done so properly. The question of the motives of Mr Eastman in acting as he did were central to the claim being advanced by Mr Galloway and the Tribunal had rightly paid attention to them. There was no evidence from which it could be inferred that any person of any other race would have been treated more favourably and indeed there was no evidence that was done could in any circumstances be described as unfavourable treatment. Whilst it was frequently either essential or important to break down the questions to be asked, there was no statutory requirement to that effect. So far as victimisation was concerned, there was a specific finding that the difference in treatment between Mr Galloway and Mr Mua was not racially based.

Discussion

16. The Tribunal set out the relevant passage from the judgment of Neill LJ in the King case but did not make any mention in their judgment of Nagarajan. It appears that Lindsay (on which Mr Galloway placed considerable reliance before us) was not cited to the Tribunal. At the time of the decision the House of Lords had not decided the Khan case. The Tribunal recited the terms of both section 1(1)(a) and 2(1)(c) and (d) of the Act and specifically said it had taken account of the submissions of the parties. Those submissions made it clear that Mr Galloway was relying on Mr Mua as his comparator. No other comparator was mentioned.
17. In these circumstances the Tribunal was clearly well aware that the question it had to answer in relation to the claim of direct discrimination contrary to section 1 of the Act was whether Mr Galloway had been treated less favourably than others (ie Mr Mua) on racial grounds. In its decision the Tribunal did not expressly seek to split out that question into the two parts identified by Lord Browne-Wilkinson at para 10 of Zafar, "(a) the less favourable treatment, and (b) racial grounds". As counsel for the Respondents said at the start of his submissions, this left the Tribunal open to criticism and made the decision less readily intelligible than it might have been. It did not however mean that the decision in relation to direct discrimination was necessarily flawed. There is no statutory requirement as to how the Tribunal sets about answering the composite question posed. As Charles J pointed out in Lindsay at para 61 Lord Browne-Wilkinson in Zafar was not rewriting or redefining the statutory question or setting down a rigid approach applicable in all cases. However it will very often be convenient to break the question down and for the purposes of explaining and analysing the decision it may well be important, if not essential.
18. In the present case it would have been helpful if the Tribunal had spelt out the two separate stages in the way in which it answered the composite question. But on the particular facts of the case we can well see why it did not do so. The background to the complaint was the breakdown in relations between Mr Galloway and the other two members of the modeling team. The Tribunal had to look at five particular instances in which Mr Galloway said he had been discriminated against and was asserting that Mr Mua would have been treated differently. The Tribunal looked at each of those five incidents and decided why it was that Mr Eastman had behaved as he did. They did this because it was central to the way that Mr Galloway had put his case before the Tribunal that Mr Eastman was motivated by a desire to sweep his grievance under the carpet in order to avoid scrutiny of Mr Haynes actions for fear this would disclose discrimination.
19. In respect of the first incident, immediately after Mr Galloway had been disciplined for racially discriminatory behaviour towards Mr Mua (who had by then left the Council), the Tribunal found that Mr Eastman was giving Mr Galloway a friendly warning to try to get him to adopt a less abrasive and confrontational approach. The Tribunal found that the reasons why he acted as he did were not only in what he perceived to be the best interests of the department but also in the best interests of Mr Galloway himself. He regarded the grievance as not having any real substance and took the view that continuation of a formal grievance procedure would be likely to have injurious consequences to Mr Galloway's fragile state of health (Mr Galloway had had substantial periods off work as a result of stress as his solicitors later underlined when asserting a claim for personal injury as a result of the amount of work he had been called upon to perform). It was self-evident from these findings that Mr Galloway's race played no part in the action that Mr Eastman took. Whilst it might have been prudent to spell out that the Tribunal was finding that Mr Eastman would have treated anyone of whatever race in the same way in the same circumstances, any fair reading of the decision reveals that finding is implicit.
20. Similar considerations apply to the remaining four specific complaints. The failure to progress the grievance followed on from Mr Galloway saying at his meeting with Mr Eastman that he would have to think about whether he wanted to continue with the grievance and then not doing anything to get Mr Eastman to progress it. Again, it is implicit in the decision that the treatment of the grievance would have been the same whatever Mr Galloway's race. The same applies to each of the other three allegations, though it is only in relation to the last that the Tribunal expressly say that Mr Eastman's comment that the use of the grievance procedure for a purely financial end was "distasteful" "was not a comment which suggested Mr Eastman was behaving in a racially discriminatory manner towards Mr Galloway."
21. In our judgment therefore the Tribunal did not err in law in reaching its conclusion that Mr Eastman (and through him the Council) did not directly discriminate against Mr Galloway. The decision might have been expressed more fully, but on a proper reading it is clear that the Tribunal correctly understood the law and applied it to the facts it found. The Tribunal found that Mr Galloway was not being treated differently from the way in which anyone else would have been, and that therefore there was no question of a difference in treatment by reason of Mr Galloway's race arising.
22. So far as the claim for victimisation is concerned, as Charles J pointed out in the Lindsay case at para 53 since the decision in Nagarajan the single question in victimisation cases can be posed in terms "Has the complainant been less favourably treated than others because he has done a protected act?" Again, it is usually at least desirable to break down the answer to the question into two constituent parts. In this instance Mr Galloway was treated differently to Mr Mua in that his complaint of discrimination was not immediately processed. The Tribunal considered the reasons why there was this differentiation in treatment and concluded that the motives were a wish to encourage a positive working environment within the Department and Mr Eastman's genuine concerns over Mr Galloway's health. There was then an express finding "[The Tribunal] did not conclude that the nature of the allegations in themselves caused Mr Eastman to treat Mr Galloway differently from Mr Mua." The Tribunal thus answered the questions required of them by the statute and found no victimisation.

Conclusion

23. It follows that there was no error of law made by the Tribunal in reaching its conclusions and the appeal should be dismissed.