United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR JOEL KENDALL (Of Counsel) Instructed by: Securicor Management Services Ltd Sutton Park Road Sutton Surrey SM1 4LD
For the Respondent	MR GARY MORTON (Of Counsel) Instructed by: Messrs Sternberg Reed Taylor & Gill Solicitors Focal House 12-18 Station Parade Barking Essex IG11 8DN


 


JUDGE ALTMAN

1. This is an appeal from the decision of the Employment Tribunal sitting at London Central on 6 days in November 2001 when it was found that the Appellant discriminated against the Applicant, first Respondent in this appeal, on grounds of race and that the complaint against the second Respondent fell to be dismissed for want of jurisdiction. The claim for breach of contract was dismissed and that for holiday pay was stayed. The act of discrimination found against the first Respondent, Securicor, related to the dismissal of Miss Williams following an incident of violence in which she was involved with the second Respondent, Miss Wendy Whitehorn who has taken no part in this appeal.
2. Miss Williams' contract of employment provided that for gross misconduct there would be summary dismissal and an example of such qualifying conduct was described as "striking a fellow employee". Securicor have a clear equal opportunities policy. Part of Miss Williams' duties involved attending at a Magistrates Court to be responsible for prisoners in the custody suite. On 24 July 2001 an incident occurred between her and Miss Whitehorn. Miss Whitehorn took a break and Miss Williams offered to stand in for her. Whilst doing so Miss Williams agreed to leave open the small 'wicket' door in a prisoner's cell door so he could have more air, although she knew that this was wrong as there is a perceived risk that an open 'wicket' may be used as a 'ligature point' for a prisoner contemplating suicide.
3. When Miss Whitehorn returned the Tribunal found that she was abusive to Miss Williams and demanded that Miss Williams should close the 'wicket'. Miss Williams refused on the ground that she was making tea for the prisoner. It seems that a row flared up and the two ladies approached each other during what the Tribunal described as a discussion. Whilst there was some uncertainty as to exactly what happened there appears to have been violence between the two women. The Tribunal found that Miss Whitehorn was at least partially successful in grabbing Miss Williams' throat. Her partner and vehicle escort officer, Mr Kibuye, intervened and escorted Miss Whitehorn away, Miss Williams following and continuing to shout at her so that Mr Kibuye then turned his attention to Miss Williams and escorted her away. Then it appears that Mr Thomas, the manager, in order to take statements, gave forms to the two protagonists and others although only Miss Williams wrote a statement. Whilst she was doing this Miss Whitehorn approached and referred to Miss Williams as a "black bitch".
4. The Employment Tribunal then analysed in some detail the various accounts given by the two women as to what had happened. Amongst other things it does appear that Miss Williams was asserting that she was defending herself. The women were examined, Miss Williams having a graze to her right neck and Miss Whitehorn grazes to her left face and left neck.
5. The Employment Tribunal found that both Miss Williams and Miss Whitehorn:

"were then suspended for similar reasons, Mr Sweet (the employee of Securicor charged with conducting the investigation) referring to an incident having taken place which resulted in an allegation of assault by the other which he noted was a serious allegation."

Ms Smith, the other investigating officer, made a report in which Miss Whitehorn admitted to grabbing the Applicant's neck which was consistent with the medical evidence. Ms Smith noted that whilst Miss Williams admitted attempting to hit Miss Whitehorn and not making contact, Miss Whitehorn herself claimed that contact was made and there was medical evidence of the injuries to which I have referred. Ms Smith concluded that there had been a serious breach of the rules of professional conduct.

6. Mr Watts was the manager who conducted the disciplinary hearing. The women were required to attend separate disciplinary hearings to answer allegations of gross misconduct for striking a fellow employee. He had interview notes and a statement from Miss Williams which referred to her being shouted at as "you bitch" without any reference to colour. It was when Miss Williams wrote a statement for her union representative some days after the incident that it appears she first mentioned the taunt "I will see to it that you lose your job you black bitch". The Tribunal found that Miss Williams denied assault and suggested that the injuries to Miss Whitehorn may have been caused by Mr Kibuye. At the end of the interview Miss Williams' union representative noted, amongst other things, that Miss Whitehorn had called Miss Williams "a black bitch". The Tribunal noted that Mr Watts did not pursue that any further. The Tribunal placed some considerable emphasis in its analysis of this case on the fact that Mr Watts let the matter drop at that stage. He informed Miss Williams that he was satisfied that she was violent towards Miss Whitehorn, corroborated by the medical report, and indicated that there would be some penalty to follow. Miss Whitehorn was then interviewed. Both employees were then seen again by Mr Watts and he dismissed them. The women then appealed and the dismissals were confirmed.
7. The Tribunal then recorded the submissions made by the representatives of the parties and the case law to which they referred. At this stage of the decision the chairman made reference to the submission by Mr Morton on behalf of Miss Williams, that the dismissal was racially discriminatory because she was treated less favourably than Miss Whitehorn. The Tribunal found as follows:

"So far as this is concerned, if it is intended to be a submission that (Miss Whitehorn) is an actual comparator, the Tribunal concluded that this must fail because the detriment about which (Miss Williams) complains, namely dismissal, was the same detriment suffered by (Miss Whitehorn); there is therefore, an absence of the necessary less favourable treatment; see Sidhu, paragraph 39."

The Race Relations Act 1976 provides in the sections to which the Employment Tribunal properly directed itself:

"1 (1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if:

(a) on racial grounds he treats that other less favourably than he treats or would treat other persons…

4(2) It is unlawful in the case of a person employed by him… to discriminate against that employee…

(c) by dismissing him, or subjecting him to any other detriment."

Mr Morton submits in the cross-appeal that the Employment Tribunal erred in rejecting the proposition that Miss Whitehorn was a comparator and that Miss Williams had been treated less favourably than her. It is said that the very fact that they were both treated in the same way, by dismissal, is in effect unequal treatment, for Miss Whitehorn was the aggressor and Miss Williams the victim in a racially motivated attack. However, it seems to us that such an argument destroys the concept of a comparator and presupposes findings of fact on the part of the Tribunal that this was a racially motivated attack, and that there was a marked distinction to be drawn between aggressor and victim in what took place. It seems to us that in any event there is extreme evidential difficulty, where a proposed comparator has on the face of it in fact been treated in the same way, in constructing a factual scenario to prove that although the comparator and alleged victim have in fact on the face of it been treated in the same way, if certain facts were present the comparator would have been treated differently. In this case, if the following proposition had been raised before the Employment Tribunal, namely 'if Miss Whitehorn had been the victim of an attack and had acted as Miss Williams did, she would not have been dismissed', and if there had been some evidential basis for that proposition, then there may have been an argument for saying in this case that Miss Williams had been treated "less favourably than (Securicor) would treat (Miss Whitehorn)". However, it does not appear that there was such evidence. In any event, we reject this ground of cross appeal in the light of the Court of Appeal's decision referred to by the Employment Tribunal of Sidhu v Aerospace Composite Technology Ltd [2000] IRLR 602. Peter Gibson LJ said at paragraph 39 (and we interpolate the names of the parties in this appeal for convenience):

"It would have to be shown that (Miss Whitehorn) was or would have been more favourably treated in circumstances the same as (Miss Williams). (Miss Whitehorn) has never actually in (Miss Williams') circumstances been subjected to provocation in the form of a physical and verbal attack. If one looks only at (Miss Whitehorn's) circumstances of using violence and racial abuse, it is hard to see how she was more favourably treated than (Miss Williams) when (Miss Whitehorn) too was dismissed."

8. In those circumstances, and even if Miss Williams could be said to have been subject to provocation, it cannot be said that the Employment Tribunal erred in following Sidhu and the cross-appeal fails.
9. The Employment Tribunal then dealt with the allegation of race discrimination that related to the assault incident itself and found that it was out of time. Nonetheless, whilst that could not then represent a free standing valid complaint, it was treated by the Employment Tribunal as a factual background to what then followed. The Tribunal found as follows:

"The Tribunal also noted that just after the physical confrontation Miss Whitehorn abused the Applicant in racial terms. It appeared to the Tribunal that the apparent difference in treatment and the difference in race would give rise to the requirement for an explanation from (Miss Whitehorn). Having regard to the racial abuse and the lack of any explanation from (Miss Whitehorn) the Tribunal concluded that this was a racial incident, albeit one in respect of which the Tribunal has no jurisdiction to order a remedy."

10. We have some difficulty in analysing the application of that finding in relation to the dismissal for violence for which the claim was being made against Securicor. The Tribunal had already found earlier, just before the passage quoted above, that Miss Whitehorn had a history of abuse and rudeness and had received warnings in respect of it and it does not appear that that was found to relate only to conduct with racial overtones. Furthermore the incident of violence, it appears from the findings of the Tribunal, could be explained by Miss Whitehorn's discovering that the wicket had been left open in her absence and then being met by refusal on the part of Miss Williams to close it when that was demanded, in no doubt fairly abusive and aggressive terms. Whilst the Tribunal would have expected an explanation as to why the racial abuse itself was used, we find that it is strongly arguable that, in the light of their findings, it erred in concluding that there was a factual basis for saying that there was no other explanation forthcoming from Miss Whitehorn. Indeed the Tribunal had plenty of evidence before it from Miss Whitehorn's interviews at the disciplinary hearing and appeal as to her explanation for her conduct. The Tribunal used the word "racial incident" and seem to have viewed the racist abuse as reflecting backwards over the violent incident that had preceded it and then to have superimposed their view that there was a lack of explanation as to their other findings in order to conclude that there was an absence of an explanation and consequently a racial incident. This was an important issue because the Tribunal were later to find that the dismissal which followed this incident was race-specific, because it was

"in response to a racial incident".

Furthermore we have been told by Mr Kendall that the case was never really put forward by Miss Williams on the basis that the attack was racist or racially motivated. Mr Kendall has conceded that there is some reference in one part of the Originating Application to the suggestion that Miss Williams claimed that had she been white the incident would never have occurred. However it is asserted by him, and not contradicted by Mr Morton, that whilst in paragraph 45 of their decision the Employment Tribunal were to find that Miss Williams was responding, in the way she behaved, to a racial incident, in fact this had never been suggested from the time of the incident to closing submissions on her behalf.

11. Mr Kendall forcefully argues, it seems to us, that against that background it is difficult to see how the Tribunal are able to rely on the fact that after the altercation and when statements were being filled in Miss Whitehorn called Miss Williams a "black bitch" as establishing that the assault itself was a racist assault. In paragraph 43 the Employement Tribunal found this was a "racial incident" on the basis, in the passage quoted in paragraph 9 above, that there was an apparent difference in treatment that gave rise to the need for an explanation. However, in paragraph 45 the Employment Tribunal went on to find that:

"the incident started because Miss Williams wrongly left open a wicket".

It seems to us that the finding that there was no explanation was inconsistent with the Employment Tribunal's findings of fact. Fights do sometimes start over trivial matters, but that does not, it seems to us, establish that there was "no explanation" in the context of the tests in King v Great Britain China Centre (1992) ICR 516. It seems to us that the Employment Tribunal erred in concluding that there was no other explanation for the attack. It seems to us that the Employment Tribunal did not analyse the cause of the violence itself. We were referred to Owen and Briggs v James [1982] ICR 618 625 and we accept the proposition that the Tribunal is entitled to rely on words said afterwards as casting light on someone's actions at the time. Of course, the fact that someone used the words "black bitch" after an attack may be important evidence as to the nature of the attack and the proposition that it was on racial grounds. But it is of course important for the Tribunal to weigh the other evidence as to the grounds for the attack, which does not appear to have occurred here.

12. However, even if we are wrong in that conclusion, Mr Kendall's main argument relates to the finding that the decision to dismiss itself, and the dismissal of the appeal, were race-specific incidents:

"The reason for the decisions to dismiss and not to allow the appeal were the alleged striking of (Miss Whitehorn) by (Miss Williams). However, as, if it happened, that was in response to a racial incident, the Tribunal has concluded that it led to those decisions themselves being race-specific."

13. The detriment in this case is accordingly the dismissal itself, and the issue here is the application of section 4(2)(c) of the Race Relations Act 1976.
14. Mr Kendall submits that even if the Employment Tribunal were entitled to find that the incident of violence was a racial attack upon Miss Williams, the Tribunal erred in law in concluding that the dismissal that followed was thereby race-specific. As has already been pointed out the Tribunal rejected the proposition that there was an available comparator in this case and confined themselves to a finding of racial discrimination through a race-specific act of dismissal. This concept finds expression by Ward LJ in Smith v Gardner Merchant Ltd [1998] IRLR 510 & 516:

"….the kind of conduct which constitutes sexual harassment can be, indeed usually is, gender-specific."

15. The learned judge then referred to the case of Porcelli, in which the abuse complained of was of a woman being shown a screw nail and asked if she wanted a screw and a penis shaped glass rod-holder and asked if she had use for it. The learned Lord Justice went on:

"it was this sort of behaviour which ineluctably compelled the conclusion that "… it was a particular kind of weapon based upon the sex of the victim which, as the Industrial Tribunal recognised, would not have been used against an equally disliked man"… If any of the weapons used against the complainer could be identified as what I call "a sexual sword" … The conclusion must be that the sword had been unsheathed because the victim was a woman"

These are conclusions of fact … It is not the case that because the abusive conduct is gender specific that there is no necessity to look for a male comparator; but it is rather the case that if it is gender-specific, if it is sex-based, then, in the nature of the harassment, it is almost certainly bound as a matter of fact to be less favourable treatment as between the sexes. The male employee would never have been subjected to the indignity of being asked if he wanted a screw or had a use for the phallic rod-holder. Thus, in those circumstances, there is no need for a comparator simply because res ipsa loquitur."

16. As Mr Kendall points out the tool of gender or race-specific conduct is commonplace and is easy to understand in harassment cases. However it is rightly pointed out that whilst there is no evidential need for a comparator where the evidence is provided by a race-specific incident, the element of causation is still required to satisfy Section 4.
17. We accept the submission that it is difficult to see how a dismissal can in itself be race-specific. The Tribunal did find that there was a link between the incident itself and the dismissal to be noted in the fact that the two men handling the dismissal and appeal proceedings did not pick up the element of race discrimination that had been referred to by Miss Williams or investigate it. Indeed it appears that the evidence was that Mr Watts had given evidence that his approach was to deal with the assault at that time and to deal with any matter of racial discrimination later on. That record of the evidence was helpfully agreed by Counsel in this case. In paragraph 49 of their decision the Tribunal drew attention to that and found:

"The Tribunal find it difficult to understand the lack of investigation by both Mr Watts and Mr Metcalfe bearing in mind that they had both been senior police officers and had investigations experience."

18. However, the Tribunal left a question mark over the reason for the lack of investigation, and did not find that that conduct in itself constituted any form of racial discrimination.
19. It then appears that there was a leap in the reasoning of the Tribunal to conclude that, because the striking of Miss Whitehorn by Miss Williams was a response to a racial incident, the dismissal that followed because of that behaviour by Miss Williams was race-specific. We agree with Mr Kendall that the element of causation is not made out, that there is no racial link between the attack and the dismissal, and that to establish that the act of dismissal was an act of racial discrimination, it must be shown to have been on racial grounds. In causation terms it does represent an impermissible leap in the chain of events leading from the fight to the dismissal. We agree with the submission that the dismissal did not inexorably flow from any racial incident but was an independent act. We agree that this argument is strengthened by the Tribunal's own finding in paragraph 44, in concluding that the original assault by Miss Whitehorn was out of time, that

"the Tribunal did not consider that there was sufficient evidence to suggest that the action of (Miss Whitehorn) could be combined with the decisions of Mr Watts and Mr Metcalfe to amount to an "act extending over a period" since it did not appear to the Tribunal that the different actions could themselves be the result of a policy, rule or practice."

20. The Tribunal sought to distinguish the Sidhu case on the ground that in that case the Court was dealing with an established policy that was even handed in that when investigating an act of violence the employers in that case declined to consider any explanation for provocation whether it be a retaliation to a racial taunt or any other sort of reason. It is true that in the Sidhu case there was a specific act of separating off the incidents of violence from any reason for provocation. But in this case there is no evidence that the employer declined to consider explanations of provocation only because they were based on race. Indeed the Tribunal avoided making a finding that the failure to investigate the racial element was part of the racial discrimination that they found Securicor had committed. Furthermore at page 606 of the Sidhu case Peter Gibson LJ said:

"The policy was plainly not race-specific. … It would of course have been different if the policy … had been only to disregard provocation if based on race."

21. In those circumstances it seems to us that the distinction of Sidhu is without a difference. In the Sidhu case the policy was an established policy of even-handedness. In the case before us there is no evidence or finding by the Tribunal that the failure to consider provocation as a mitigation of penalty was because it was due to race.
22. It does seem to us that the case before the Tribunal was similar to that in the Sidhu case. It is true that the reason for the judgment of the Court of Appeal included the finding of Peter Gibson LJ:

"I am unable to see how the application of ACT's non-race-specific policy in leaving out of account all provocation can result in a finding of less favourable treatment on racial grounds than other persons, without proof of more favourable treatment of other comparators."

23. In this case there was no evidence of more favourable treatment of other comparators in relation to the way in which mitigating factors were considered. The position may have been different if the Tribunal had had material before them upon which they could conclude, and had consequently concluded, that, on the one hand, the employer had failed to take account of the mitigation that the provocation which led to Miss Williams' retaliation was a racial attack, whilst on the other hand, in the case of other comparators, provocation which was not caused be racist attack, would not have led to dismissal. But that illustrates, it seems to us, that not only is there no essential difference between this and the Sidhu case, but that where one is at a dismissal that follows a racial attack one still is in the arena of comparators and the need for causation in relation to the incident itself.
24. It seems to us that the very essence of a 'race-specific' incident is that the nature of the incident is of such a kind that it provides clear factual evidence that the person who perpetrates it is a person who thereby discriminates unlawfully on grounds of race. It can be seen from the nature of the incident itself; a racial taunt, or, for example, the type of incident in the Porcelli case. Here the incident was a dismissal. That is not race-specific, because a dismissal may or may not be racially discriminatory. One can picture many reasons that may lead an employer to dismiss for conduct even though that conduct was provoked by a racial attack, such as that the employee's conduct was still far too serious. In order to decide if the dismissal itself was an act of racial discrimination the Tribunal would, it seems to us, have had to consider the usual issues in determining whether a particular act is an act of unlawful discrimination on the grounds of race. The fact of the dismissal does not, itself and without more, speak 'racial discrimination', it is not, to apply the Latin phrase used by Ward LJ, 'res ipsa loquitur'
25. When considering whether a dismissal or an appeal are racially discriminatory it seems to us that an Employment Tribunal must focus on those actions of dismissal and conduct of the appeal. It seems to us that it could only amount to race discrimination if the treatment of the dismissal and the appeal were conducted and determined in a less favourable way than where the racial element was absent. In a particular case there may be, indeed, a racial link between a dismissal and the incident that leads to it. This could occur, for instance, in a case where, following a racist incident, the employer, knowing the motivation, effectively adopts it and decides to dismiss the victim. However, that would not make the dismissal 'race-specific'. It would be revealed on an examination of the evidence surrounding the dismissal so as to determine whether it had been 'on grounds of race'. In this case and on their own findings such factors were not present.
26. In O'Neill v (1) Governors of St Thomas More RCVA Upper School (2) Bedfordshire County Council [1996] IRLR 372 when Mummery J as he then was said that the Tribunal's approach to causation should be

'… further qualified by the principle that the event or factor alleged to be causative of the matter complained of need not be the only or even the main cause of the result complained of (though it must provide more than just the occasion for the result complained of)."

We accept Mr Kendall's submission that the fight was no more than "the occasion for the result complained of" (that is dismissal).

27. It seems to us that a potentially unjust result would flow from a proposition that if there is a race-specific incident by A which simply leads to consequences by B then B is liable for discrimination if what then follows constitutes a detriment to the victim of the original race-specific act whether or not such consequences have any racial element at all. That seems to us why the element of causation is important. It seems to us in deciding on final disposal that a correct legal analysis would have impelled the conclusion on the part of the Tribunal that the dismissal was not race-specific. We find that in making a finding that the dismissal was race-specific, the Employment Tribunal made a finding that could not be supported by the fact of the dismissal itself and thereby they erred in law.
28. Furthermore in drawing the conclusion they did the Employment Tribunal has focussed the entire case on not only the fact that it was a racial attack, but that Miss Williams was to some extent exonerated as responding to a racial attack and that therefore to dismiss her was race-specific. However as already pointed out, we accept from the evidence of the records of meetings that we have seen that Miss Williams never said that she had responded because of a racial attack and there was no evidence of racial provocation that led her to act as she did at the time. No case was put forward either at the disciplinary or appeal hearing of any awareness of racial motivation or comment at the time of the attack and indeed one of the striking features of this case is that in the initial statement made immediately after the incident there was no mention of any racial abuse at all. The Employment Tribunal referred to the Race Relations Code of Practice published by the Commission for Racial Equality, where it is said in paragraph 1.23:

"It is recommended that in applying disciplinary procedures consideration should be given to the possible effect on an employee's behaviour of "racial abuse or other racial provocation""

Again, as pointed out earlier, this does not seem to apply to the case as put forward by Miss Williams as Applicant. Whilst it was contended that Miss Whitehorn was racially motivated, it does not seem to have been clearly established by the Employment Tribunal that Miss Williams behaved as she did because she felt abused and racially provoked and it would be difficult to see why she should have thought that, when the accusation of "black bitch" which was the only evidence relied on by the Tribunal to demonstrate the racial nature of the attack was communicated to Miss Williams after the attack was over.

29. Mr Morton, for Miss Williams, referred us to the case of Nagarajan v London Regional Transport [1999] IRLR 573 at paragraph 14 in which Lord Nicholls in the House of Lords pointed out the relevance of motive:

"The reason why the alleged discriminator acted on racial grounds is irrelevant."

We respectfully agree with that proposition but before getting to any question of motivation there must, implicit in that finding at least, be racial discrimination "on grounds of" race. So of course there must be an examination of what caused the act complained of, so as to establish its grounds and the element of causation. Of course, once racial discrimination is established the motivation of the individual, we accept, is irrelevant.

30. It seems to us, therefore, that the Employment Tribunal erred in law by concluding that because there was no other explanation for it, the attack on Miss Williams was a racial attack for that was contrary to their own findings of what had caused it. Also, in relation to the abuse 'black bitch', the Employment Tribunal failed to give reasons for determining that this demonstrated that the attack was a racial attack, in preference, for example, to determining that the attack and the abuse were parallel events. The Employment Tribunal also erred in applying the term race-specific to the dismissal, and came to a conclusion that was not available on the evidence. Finally it seems to us that the Employment Tribunal erred in assessing the conduct of MissWilliams that led to dismissal as a response to a racial attack when it did not appear to have been her case that that was what prompted her actions at the time.
31. In each and all of those circumstances this appeal must be allowed. Mr Kendall raised a number of other matters dealing with the way in which the Tribunal approached the evidence which would have required requesting the Chairman's notes. As this matter was listed without a Preliminary Hearing he did not request such notes and was content for this matter to be heard on the grounds put forward so far on the basis that we did not need to examine other grounds. Accordingly we have considered no other grounds of appeal in this matter.
32. It must follow, it seems to us, from our judgment that had the Employment Tribunal applied the principles enunciated in Smith v Gardner Merchant Ltd. and in Sidhu, and as we have found them to be, they would have been bound to conclude, on the basis of their findings of fact, that the dismissal was not a race-specific act. In those circumstances it seems that the appropriate disposal is not to seek a further fact finding exercise by an Employment Tribunal, but rather to substitute such finding as would inevitably have followed if the legal provisions as we find them to be had been applied to the facts as found by the Employment Tribunal. In those circumstances, it seems to us, that it is appropriate to substitute for the order of the Tribunal, an order that Securicor did not discriminate unlawfully against Miss Williams on the ground of race. However, as agreed at the conclusion of the hearing, the parties have fourteen days in which they have liberty to apply as to the disposal of this appeal and pending such exercise the final order as to disposal is adjourned.