United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MRS L GOLDMAN MR A HODGE (of Counsel) Instructed by: Hertfordshire County Council County Hall Pegs Lane Hertford Hertfordshire SG13 8DE
For the Respondent	The Respondent in person


 


HIS HONOUR JUDGE PETER CLARK

1. This is an appeal by Hertfordshire County Council, the Respondent before the Employment Tribunal sitting at Watford under the Chairmanship of Mr V J Adamson against part of that Tribunal's Decision, promulgated with Extended Reasons on 9 April 2002, that the Applicant, Ms Mullings was unlawfully discriminated against on the grounds of her race in the way that the Respondent handled her grievance. By a majority, the Tribunal awarded her £1,500 compensation for injury to feelings plus interest.
2. At an earlier directions hearing held before a Chairman, Mr Garnon, on 5 July 2001, three issues arising from the Applicant's Originating Application dated 6 April and presented to the Tribunal on 9 April 2001, were identified for determination; first, whether a failure to shortlist the Applicant for the position of Team Leader (Youth) was an act of direct racial discrimination, secondly whether she had been victimised (those complaints being rejected by the Adamson Tribunal) and thirdly:

"whether the way in which the Applicant's grievance to Mr Connah was handled by him constituted unlawful racial discrimination in the sense that a white person making a complaint in the same or similar circumstances would not be treated more favourably"

(the third complaint).

The facts

3. The Applicant is black Caribbean. At the relevant time she was employed by the Respondent as a Young Citizen Project Manager.
4. During 2000-2001 an internal departmental restructuring was carried out by the Respondent. The existing Education and Social Services Departments were to merge into one department known as the Children, Schools and Families Service. Instead of the Applicant being slotted into the new post of Team Manager - Youth, as she and others had earlier contended for, she was required to apply for the new post along with others. She did apply but was not shortlisted by the recruitment panel.
5. The Respondent operated a grievance procedure which provided:

"2.1 In the first instance the employee should submit the grievance to their immediate supervisor. The supervisor will then arrange to discuss the grievance with the employee.

2.2 If the matter is not thus settled to the satisfaction of the employee and they wish to pursue it, they may ……request the supervisor to arrange a meeting at which the employee …. May present the grievance. At this stage one or more meetings will be held at which the high levels of management and …… the employee's Trade Union …. may be represented. The employee will have the right to attend."

The Tribunal found (Reasons paragraph 25) that at the initial stage of the grievance process, meetings, if necessary many meetings, would be held to attempt to resolve the grievance.

6. It appears that the shortlist was finalised on 20 March 2001. On 22 March the Applicant wrote to Bob Ballard, Chair of the Selection and Recruitment Panel, expressing her feelings at not being shortlisted for the post of Team Manager - Youth; asking why she was not successful in being shortlisted and asking for the composition of the panel in terms of race and gender.
7. Shortly after midnight on 23 March Mr Ballard met with Mick Connah, Senior Human Resources Manager. Thereafter Mr Ballard responded to the Applicant's enquiry in writing the same day, save that he did not mention the race or gender composition of the panel members.
8. On 26 March the Applicant wrote to Mr Ballard, expressing dissatisfaction with his response, and indicating that she would be taking out a grievance. A few minutes later she e-mailed her line manager, Nick Smith, and his superior Mr Rees, attaching a copy of her memo to Mr Ballard, formally starting the grievance procedure by informing her manager/senior manager, that is, Mr Smith/Mr Rees. She also spoke to Mr Smith and raised her concerns regard her ethnicity.
9. The Tribunal found (Reasons paragraph 31) that the grievance was not within Mr Smith's power to resolve. He spoke to Stuart Petrie, a personnel officer. Mr Petrie probably was aware of the issue of race raised in the Applicant's complaint. On 28 March Mr Petrie e-mailed Mr Smith, telling him that the Applicant's complaint was being taken seriously and being considered presently. A decision in respect of her complaints was hoped for by Friday. Whilst it was being considered no appointments to the new posts would be made.
10. The Tribunal found (Reasons paragraph 33) that Mr Connah treated the Applicant's complaint as one which, the Tribunal accepted, may be made by any number of disgruntled applicants for jobs namely, he treated the extent of her complaint as one where she had applied for a job, that she considered she met the criteria and ought to have been shortlisted. Mr Connah acted as if no grievance had been lodged, although the Tribunal found that it had.
11. The new structure was due to be implemented on 1 April. Mr Connah, the Tribunal found, was aware that there could be a significant managerial problem with the setting up of the new departments if the Applicant lodged a grievance involving race or if it was upheld. He acted quickly to inform the successful candidates of their selection and did so on 2 April. On that day he e-mailed the Applicant. He told her that he had put the appointment process on hold, but now, having satisfied himself that the process was completed in accordance with the Respondent's procedure, that he would meet her, and her representative if she wished, to discuss the matter, without prejudice to her access to the grievance procedure, and that he was asking Mr Ballard to inform the short-listed candidates of the outcome of the earlier interviews. That was done on 2 April.
12. Still dissatisfied the Applicant e-mailed Mr Connah, requesting an independent investigation of the process and stating that she would be pursuing her grievance. She then presented her complaint to the Tribunal on 6 April.

The Tribunal Decision

13. Against that factual background the Tribunal expressed their conclusion on the relevant third complaint at paragraph 38 of their Reasons thus:

"We find that the Applicant's grievance of which Mr Connah was aware, contained an important and significant element of race and potentially unfair treatment. The Respondent did not follow its normal procedures. We consider that the reason the Respondent acted as it did was because if a grievance of a nature the Applicant wished was pursued, it could delay the appointment of staff for the position of Team Manager - Youth Post and affect the implementation of the new departmental structure. The Applicant's grievance, containing the elements of potentially unfair treatment on the ground of her race, could have had a delaying effect were it to be treated in accordance with the Respondent's grievance procedure as normal. We find that the Applicant was less favourably treated than others on the ground of her race."

The Appeal

14. We begin with the submission by Mrs Goldman that the Tribunal was wrong to find that the Applicant had in fact submitted a formal grievance (Reasons paragraph 33). That is a challenge to a finding of fact and is in any event not correct. The e-mail to Mr Smith on 26 March, timed at 13.42 hours, clearly started the first stage of the Respondent's grievance procedure. Further Mrs Goldman advanced an argument, based on the unfair dismissal case of Iceland Frozen Foods -v- Jones [1982] IRLR 439, that in some way the Tribunal had impermissibly substituted their view for that of the employer in this case. Whilst we accept, as a matter of law, that the prohibition on substitution can affect discrimination cases, see particularly, for example, Martins -v- Marks & Spencer PLC [1998] ICR 1005, 1019 G, per Lord Justice Mummery, a race discrimination case, and the disability discrimination case dealing with justification, Post Office -v- Jones [2001] ICR 805 paragraph 41 per Lady Justice Arden, we are quite unable to see how that principle impacts on the facts of the present case.
15. The real questions in the appeal, we think, are:

(1) whether the Tribunal correctly applied the provisions of section 1(1)(a) of the Race Relations Act 1976, read with sections 3(4) and 4(2)(b) ; and

(2) whether, in drawing an inference of less favourable treatment on racial grounds the Tribunal made any findings of primary fact to support such an inference;

(3) whether they gave adequate reasons for their conclusion on the third complaint.

The Law

16. By section 1(1) RRA. 1976 a person discriminates against another in any circumstances relevant for the purpose of any provision of the Act if, on racial grounds he treats that other less favourably than he treats or would treat other persons.
17. Thus the Applicant must, presently show that she has been less favourably treated than an actual or hypothetical comparator. By section 3(4) the comparison of the case of the Applicant of a particular racial group and the case of a person not of that group must be such that the circumstances in the one case are the same or not materially different in the other. It follows that it is necessary for the Tribunal to identify precisely the actual or hypothetical comparator, complying with section 3(4) for the purposes of the necessary comparison. Was the complainant less favourably treated than the appropriate comparator in any circumstances relevant for the purpose of any provision of the Act? In the present case that can only be subjecting the Applicant to a detriment for the purpose of section 4(2)(c). That simply means putting her at a disadvantage in some way.
18. Having found less favourable treatment, was that treatment meted out to the complainant on racial grounds? Direct evidence supporting this part of the Applicant's case will be rare, as the Court of Appeal pointed out in King -v- Great Britain China Centre [1991] IRLR 513. The relevant guidance from the judgment of Lord Justice Neill is set out in this Tribunal's Reasons at paragraph 14. Often it will be a matter of inference. Where there is a difference in treatment and a difference in race the Tribunal will look to the Respondent for an explanation. If that explanation is considered inadequate or unsatisfactory the Tribunal may, not must (see Zafar -v- Glasgow City Council [1998] IRLR 36) draw an inference of unlawful racial discrimination.
19. However, before drawing an inference of unlawful discrimination there must be some primary facts on which such an inference can be based. If not, then the Tribunal has fallen into error. See, for example, Chapman -v- Simon [1994] IRLR 121, Effa -v- Alexandra Healthcare NHS Trust & Another (CA ) unreported 5 November 1999 EATFR 1998/1330/A1); Coyne -v The Home Office [2000] ICR 1443 (CA) (Lord Justice Sedley dissenting). The mere fact that an employer has acted unreasonably does not, without more lead to the inference of unlawful discrimination - see Zafar.

The present case

20. How did this Tribunal approach its task in deciding the relevant third complaint? First it was necessary to select an appropriate comparator. No actual comparator is identified - what of the hypothetical comparator?
21. At the earlier directions hearing the comparator was identified as "a white person making a complaint in the same or similar circumstances" (Reasons paragraph 2(iii) ). We shall assume that this Tribunal adopted that comparator, without spelling out what were the same or similar circumstances. Again, it may be presumed that the appropriate comparator was a white Young Citizen Project Manager who had applied for one of the new Team Manager Youth posts, was qualified for that post; was not shortlisted for interview and then raised a grievance with his or her line manager in accordance with the Respondent's stage 1 grievance procedure. The question then for the Tribunal is whether the way in which the Applicant's grievance was treated by Mr Connah up until the presentation of her Originating Application was less favourable than the treatment which would have been afforded to that hypothetical comparator. The Tribunal concluded that the Applicant was less favourably treated "than others". How did they arrive at that conclusion?
22. The answer, submits Mrs Goldman is that it is far from clear. At paragraph 33 they accepted that Mr Connah treated the Applicant's complaint as one which may be made by any number of disgruntled applicants for jobs, he treated her as he would the comparator whom we have earlier identified. Further, his concern (paragraph 34) was that there could be a significant managerial problem with the setting up of the new department if the Applicant lodged a grievance involving race or if it was upheld. He acted quickly to fill those posts for the operation of the new organisational structure.
23. Turning to the critical conclusion paragraph, paragraph 38, the Tribunal, having found that the Respondent did not follow its normal procedures, concluded that the Respondent acted as it did because if the grievance was pursued, it could delay the appointment of staff to the new posts and affect the implementation of the new structure.
24. In these circumstances, submits Mrs Goldman, far from leading to the conclusion based on primary findings of fact, that the correct hypothetical comparator would have been treated more favourably than the Applicant, the only inference is that he or she would have been treated by Mr Connah in precisely the same way as he treated the Applicant. He would have deferred consideration of the grievance until after the appointments had been made in the interests of implementing the organisational restructuring.
25. Even if that was unfair or unreasonable treatment in terms of the person pursuing the grievance, the object of which, if it was upheld, being to gain a place on the shortlist for interview, because by the time it had been processed it would be too late to enter the final selection process, any manager, regardless of race would be treated in the same way.
26. Thus, it is not simply that the Tribunal has provided no logical chain of reasoning leading from the facts as found to the conclusion of less favourable treatment; the facts point entirely the other way. In the absence of less favourable treatment the question of racial grounds simply does not arise.
27. We see the force of that submission. In response, Ms Mullings, who has conducted her case with conspicuous courtesy and tenacity, albeit without, understandably, a full grasp of the legal principles, recognises the gaps in the Tribunal's reasoning identified by Mrs Goldman. She has sought to introduce other comparators; first, the seven white managers who were shortlisted when she was not. However, those comparators were relevant to the first complaint, identified at paragraph 2(1) of the Tribunal's Reasons, which complaint was dismissed by the Tribunal. There is no cross-appeal against that finding. Secondly, she suggested actual comparators; white managers who had raised different grievances on other occasions, which grievances had been dealt with more speedily; however, such actual cases do not provide comparators complying with section 3(4) RRA and do not form a component in the material third complaint identified at paragraph 2(iii) of the Tribunal's Reasons.
28. Driven back to what we regard as the only appropriate comparator, as we have earlier identified him or her, Ms Mullings was unable to take us to any finding of fact by the Tribunal which could support the conclusion that she was treated less favourably than that hypothetical comparator.
29. We accept Mrs Goldman's submissions, first that the Tribunal failed properly to identify the appropriate comparator and secondly, that had they done so, they were bound to find on their findings of primary fact, that no less favourable treatment had been made out.
30. It follows, in our judgment, that this Decision is fatally flawed in law. The appeal is allowed. Further, all necessary primary findings of fact having been made, we have concluded that the proper course is not to remit the case on the third complaint to the same or a different Employment Tribunal. In the absence of any factual basis for concluding that the Applicant was less favourably treated by Mr Connah than the correct hypothetical comparator, the correct course is to reverse the Tribunal's Decision and dismiss this complaint, cf Effa and Coyne