United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R BALLAMOODY (the Appellant in Person)
For the Respondent	MR M SUTTON (of Counsel) Instructed by: Messrs Ward Hadaway Solicitors Sandgate House 102 Quayside Newcastle upon Tyne NE1 3DX


 


THE HONOURABLE MR JUSTICE KEITH

Introduction

1. The Appellant, Mr Rengasamy Ballamoody, comes from Mauritius. He is of Indian origin. He arrived in the United Kingdom in 1970, and qualified as a state registered nurse in 1974. On 1 August 1996, the Respondents, the United Kingdom Central Council for Nursing, Midwifery & Health Visiting, but now known as the Nursing & Midwifery Council ("the Council"), ordered that his name be removed from the Nursing Register ("the Register"). In due course, Mr Ballamoody applied for his name to be restored to the Register. After his first application was refused, he applied again. His second application was also refused, this time on 9 December 1998.
2. Mr Ballamoody presented a complaint to the Industrial Tribunal (as it was then called). He complained that the refusal in December 1998 of his second application for the restoration of his name to the Register had amounted to racial discrimination and victimisation. The complaint of racial discrimination was based on his allegation that his race, colour or ethnic origin had played a part in the refusal of his second application for the restoration of his name to the Register. The complaint of victimisation arose out of proceedings which he had commenced in the Industrial Tribunal in May 1996 against the Manchester Health Authority ("the Authority"), which had reported to the Council his conviction at the Manchester Magistrates' Court of six offences contrary to Regulation 15(3) of the Nursing Homes and Mental Nursing Homes Regulations 1984 (SI 1578/84). Mr Ballamoody believed that in reporting him to the Council the Authority had been racially motivated, and in the course of those proceedings he applied, initially successfully, for the Council to be joined as a Respondent. The complaint of victimisation was that a desire to punish Mr Ballamoody for joining the Council in those proceedings played a part in the refusal of his second application for the restoration of his name to the Register. It should be recorded that the joinder of the Council was set aside on appeal to the Employment Appeal Tribunal (Lindsay P presiding), and that occurred before December 1998 when the decision complained of in these proceedings was made.
3. For reasons which it is unnecessary to set out, Mr Ballamoody's current claims against the Council were not decided until November 2002 when an Employment Tribunal (as it had by then become) sitting in Manchester dismissed his complaints of racial discrimination and victimisation. Mr Ballamoody filed a Notice of Appeal against the dismissal of those claims. A preliminary hearing was ordered. At that hearing, the Employment Appeal Tribunal (Judge Peter Clark presiding) dismissed the appeal against the dismissal of Mr Ballamoody's complaint of victimisation, and it directed that the appeal against the dismissal of his complaint of racial discrimination should proceed to a full hearing on one ground only. This is the Employment Appeal Tribunal's judgment following that full hearing.

The relevant facts

4. In order to put the one remaining ground of appeal into its proper context, it is necessary to set out some of the background facts. Prior to 1992, Mr Ballamoody's career in nursing had not been the subject of any criticism. In 1992, though, Mr Ballamoody became involved in the setting up of a nursing home in the Manchester area. After a while, the Authority became concerned about the way it was being run. The six offences for which Mr Ballamoody was prosecuted related to his stewardship of the nursing home. Three of the offences related to his responsibilities as the proprietor of the nursing home. The other three offences related to his failure properly to administer, or to record the administration of, drugs to patients at the nursing home. Mr Ballamoody pleaded not guilty. He has always maintained that he was let down by the matron of the nursing home whom he says was really responsible for any failings in the running of the nursing home. But the offences were found proved, and Mr Ballamoody was fined.
5. The Authority reported the convictions and the facts underlying them to the Council. Disciplinary proceedings were commenced against Mr Ballamoody. Those were the proceedings at the end of which the Council's Professional Conduct Committee ("the Committee") on 1 August 1996 ordered Mr Ballamoody's name to be removed from the Register. As we have said, he applied for his name to be restored to the Register. That application was refused on 21 November 1997. In giving its decision, the Committee expressed the view that Mr Ballamoody appeared to show "a lack of insight into the gravity of [his] misconduct".
6. Not long afterwards, Mr Ballamoody applied a second time for the restoration of his name to the Register. That was in April 1998. It was refused again, the Tribunal finding that the Committee had rightly thought that Mr Ballamoody was "still finding it impossible…to acknowledge his role in the offences of which he was convicted". For the record, we should add that a third application was refused in August 1999, though that refusal, like the first, is not the subject of these proceedings. We also observe that there was a considerable lapse of time between each application for the restoration of Mr Ballamoody's name to the Register and the determination of that application; but that may have been the consequence of the multiplicity of proceedings which Mr Ballamoody had commenced.

The relevant statutory provisions

7. Section 1(1)(a) of the Race Relations Act 1976 ("the Act") provides, so far as is material:

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….."

If the Council's treatment of Mr Ballamoody in refusing his second application for the restoration of his name to the Register amounted to discrimination, it was accepted by the Council that section 12(1) of the Act would have rendered that discrimination unlawful. Section 12(1) provides, so far as is material:

12 (1) "It is unlawful for [a]…body which can confer [a]…qualification which is needed for…engagement in a particular profession…to discriminate against a person -

…

(b) by refusing…his application for it…"

The Tribunal's approach

8. In considering whether Mr Ballamoody's race, colour or ethnic origin had played a part in the refusal of his second application for his name to be restored to the Register, the Tribunal had in mind the comparative rarity of direct evidence of discrimination. It acknowledged that it had to consider whether, on the primary facts which it found, Mr Ballamoody had been treated less favourably than the Council would have treated persons of a different race, colour or ethnic origin in comparable circumstances. If Mr Ballamoody had been treated less favourably than such comparators, the Tribunal would look to the Council for an explanation for the less favourable treatment. If no explanation was put forward, or if the explanation was regarded by the Tribunal as inadequate or unsatisfactory, it would then be legitimate for the Tribunal to infer that the less favourable treatment had been on racial grounds. That was the effect of the Court of Appeal's decision in King v Great Britain-China Centre [1992] ICR 516.
9. But first the Tribunal had to choose a proper comparator. It is here that the sole remaining ground of appeal arises. The governing provision is section 3(4) of the Act, which provides:

3 (4) "A comparison of the case of a person of a particular racial group with that of a person not of that group under section 1(1) … must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."

The operation of this section was summarised by Ward LJ in Ballamoody v United Kingdom Central Council for Nursing, Midwifery and Health Visiting [2002] ICR 646, in which Mr Ballamoody successfully appealed against the striking out of his current claims at paragraph 54 as follows:

54 "The task set by section 3(4) is broadly to compare like with like. It is the same under section 5(3) of the Sex Discrimination Act 1975. If the applicant can point to an actual person whose circumstances are the same or not materially different from his own, then so much the better. Frequently, however, there may be no actual comparator whom it can be shown has been treated more favourably than the applicant. In those circumstances it is necessary to construct a hypothetical comparator to show how a person of the other racial group would have been treated."

10. An actual comparator could not be found for Mr Ballamoody, and it was therefore necessary to construct a hypothetical comparator. Mr Ballamoody's counsel suggested to the Tribunal that the hypothetical comparator should be a "white person with similar convictions and findings of misconduct [to Mr Ballamoody] which leads to his removal from the Register and who after a not insubstantial period of time applies to be restored after a period of some voluntary work in health care." The Council's counsel, Mr Mark Sutton, who has appeared for the Council on this appeal, suggested to the Tribunal that in order to compare like with like "the comparator should…be a person who has not been able to show 'insight' into the gravity of the misconduct found proved against him and which resulted in removal from the Register."
11. In deciding between these two contentions, the Tribunal bore in mind the caution which the Employment Appeal Tribunal had given in Chief Constable of West Yorkshire Police v Vento [2001] IRLR 124 about the construction of a hypothetical comparator not being too narrowly drawn. At paragraph 12, Lindsay P said:

12 "…it is all too easy to become nit-picking and pedantic in the approach to comparators. It is not required that a minutely exact actual comparator has to be found. If that were to be the case then isolated cases of discrimination would almost invariably go uncompensated."

As the Tribunal commented in the present case, "to identify a hypothetical comparator who is virtually identical to the applicant when a true comparator of such description cannot be found renders the exercise of comparison almost irrelevant." It was against that background that the Tribunal took as the hypothetical comparator the model advanced on Mr Ballamoody's behalf.

12. The Tribunal then had to decide how such a comparator would have fared on an application for his name to be restored to the Register. The Tribunal concluded that, all other matters being equal, such a comparator would most likely have had his name restored. On that basis, the Tribunal held that Mr Ballamoody had been treated less favourably than the hypothetical comparator it adopted, and it looked at the Committee's explanation as to why Mr Ballamoody had been treated less favourably. The explanation given to the Tribunal was that Mr Ballamoody "had not adequately demonstrated to the Committee a sufficient level of insight into the circumstances giving rise to his removal from the Register". Nor had the Committee been provided with sufficient materials or references covering Mr Ballamoody's activities since his removal from the Register or his plans for the future. In those circumstances, the Committee had not been satisfied that it was yet safe to permit Mr Ballamoody to return to practice. The Tribunal was satisfied with that explanation. As a result, there was no basis to infer that the failure to restore his name to the Register had been connected with his race, colour or ethnic origin.

The ground of appeal

13. The ground of appeal is that the Tribunal did not understand the principles governing the selection of a hypothetical comparator, and that it failed to draw the inferences which were appropriate to Mr Ballamoody's case. In our judgment, the Tribunal displayed a keen understanding of the difficulties of constructing an appropriate hypothetical comparator, though as we shall show if the Tribunal erred at all in the selection of the hypothetical comparator, it erred in favour of Mr Ballamoody, not against him. Indeed, it is odd for Mr Ballamoody to complain about the Tribunal's selection of a hypothetical comparator since the Tribunal adopted as the appropriate hypothetical comparator the model advanced on Mr Ballamoody's behalf, and as a result found that Mr Ballamoody had been treated less favourably than the hypothetical comparator would have been treated.
14. It may be that Mr Ballamoody's real argument is that, having found that Mr Ballamoody had been treated less favourably than the hypothetical comparator would have been treated, the Tribunal should then have inferred that that difference in treatment was, in part at least, as a result of Mr Ballamoody's race, colour or ethnic origin. Indeed, that is what the Employment Appeal Tribunal thought the real point was when it decided that this ground of appeal should proceed to a full hearing. It said

6 "The Tribunal having accepted the hypothetical comparator advanced on behalf of [Mr Ballamoody], found that there would have been a difference in treatment between [Mr Ballamoody] and that hypothetical comparator, and yet have concluded that the explanation put forward by the [Council] is an adequate and acceptable one so that no direct discrimination arose. It is this part of the appeal which we think ought to proceed to a full hearing without in any way giving an indication as to how the matter may be ultimately resolved."

15. In our judgment, there was no inconsistency between the finding that Mr Ballamoody had been treated less favourably than the hypothetical comparator would have been treated and the finding that that difference in treatment had not been on racial grounds. This was just the sort of situation in which the Tribunal had to look carefully at the Committee's explanation for not restoring Mr Ballamoody's name to the Register. The Tribunal's finding that the explanation given to it was what the Committee had honestly believed inexorably led to its conclusion that the differential treatment had not been on racial grounds.
16. The real question is whether the Tribunal's finding that the explanation given to it by the Committee was what the Committee had honestly believed was one which the Tribunal could not reasonably have reached. In its Reasons, the Tribunal recorded the points made on this topic by Mr Ballamoody's counsel. They were that the nature of the misconduct found proved against Mr Ballamoody was not the most heinous and there were mitigating factors in relation to it, that Mr Ballamoody had stated to the Committee that he had learned lessons, that he had insight into the offences and that he wished to move on, that the members of the Committee had failed to consider that Mr Ballamoody's body language, the manner in which he answered questions and his style of presentation may have been linked to cultural differences, that the chair of the Committee had exhibited hostility towards him, that the Committee had not given reasons for its decision not to restore his name to the Register, and that the Committee's failure to provide any advice to Mr Ballamoody regarding any future applications indicated a wish to discourage such applications in the future.
17. We think that it would have been better for the Committee to have given Mr Ballamoody reasons for its decision at the time. But the Tribunal made the point that it was not the seriousness of Mr Ballamoody's original misconduct which had caused the Committee not to restore his name to the Register. It noted that the Committee had been entitled to take everything which Mr Ballamoody had said into account, and not just to take at face value the literal meaning of the words he used. It commented that the chair of the Committee had had not merely the right but also the obligation to press Mr Ballamoody about matters over which the Committee was concerned. It recorded its view that Mr Ballamoody was an intelligent man who had lived in this country for 30 years and who was perfectly capable of expressing himself properly. And it noted that Mr Ballamoody had previously been given advice as to future applications for the restoration of his name to the Register, so that the failure of the Committee to repeat that advice did not indicate any attempt to discourage future applications for the restoration of his name which all of the members of the Committee who had given evidence to the Tribunal confirmed had not been its intention. In our judgment, it is simply not possible to characterise the Tribunal's finding that it had been given the Committee's honest explanation for not restoring Mr Ballamoody's name to the Register as so perverse that it was one which the Tribunal could not reasonably have reached.
18. We can see how in some cases there may well be a tension between a finding that an applicant of Indian origin has been treated less favourably than an indigenous white hypothetical comparator would have been treated and a finding that the difference in treatment is not attributable to racial grounds. But that tension is completely neutralised in the present case by the reservation which the Tribunal attached to its conclusion that the hypothetical comparator which it selected would have had his name restored to the Register. That reservation was "all other matters being equal". In the present case, the Tribunal found that there was in truth no equality between Mr Ballamoody and the hypothetical comparator adopted by the Tribunal. We see that from paragraph 31 of the Tribunal's reasons, in which the Tribunal said:

31 "If [Mr Ballamoody] had presented before the Committee in 1998 with reasonably sound references and with an approach to the Committee which led them to believe that he had had insight into the circumstances surrounding his conduct, this Tribunal is of the unanimous view that [Mr Ballamoody] would have been restored to the Register."

That, no doubt, was why, although not actual comparators, other persons who Mr Ballamoody identified as persons whose names were not removed from the Register in the first place, were treated in the way that they were.

19. The logical consequence of the Tribunal's view that there was in truth no equality between Mr Ballamoody and the hypothetical comparator adopted by the Tribunal rather suggests that the Tribunal should have chosen as the hypothetical comparator the model suggested by Mr Sutton, because only then would like have been compared with like, as required by section 3(4) of the 1976 Act. Paragraph 39 of the Tribunal's reasons tells us what the Tribunal would have decided in that event. The Tribunal said:

39 "The Tribunal would also wish to add that, if the correct comparator should not be as identified by [Mr Ballamoody's counsel] but suggested by Mr Sutton, the Tribunal's decision would be exactly the same, namely that such comparator would have been treated in exactly the same way as [Mr Ballamoody]."

20. Finally, we note that since the Tribunal's decision the House of Lords has handed down judgment in the case of Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337. The House of Lords endorsed the view expressed in Vento about the inappropriateness of the search for a hypothetical comparator in cases where no true comparator could be found. As Lord Hope of Craighead said at paragraph 52:

52 "The crucial question is whether there was discrimination, and it would defeat the purpose of the [Act] if this question could not be addressed simply because the complainant was unable to point to anyone else who was in fact in the same position as she was. Isolated or unique cases would be left without the protection which the legislation is designed to provide."

Perhaps these cases should be approached on the basis that it may be a little artificial to divide into separate compartments the issue of whether an applicant has been treated less favourably than a proper comparator would have been treated and the issue whether that difference in treatment was attributable to racial grounds. As Lord Nicholls of Birkenhead said at paragraphs 8 and 11:

8 "No doubt there are cases where it is convenient and helpful to adopt this two step approach to what is essentially a single question: did the claimant, on the proscribed ground, receive less favourable treatment than others? But, especially where the identity of the relevant comparator is a matter of dispute, this sequential analysis may give rise to needless problems. Sometimes the less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue. The two issues are intertwined.

11 This analysis seems to me to point to the conclusion that employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was. Was it on the proscribed ground which is the foundation of the application? That will call for an examination of all the facts of the case. Or was it for some other reason? If the latter, the application fails. If the former, there will be usually be no difficulty in deciding whether the treatment, afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others."

Conclusion

21. For these reasons, we have concluded that if the Tribunal's approach to the identification of the hypothetical comparator was flawed, its error was to be too benevolent to the model advanced on Mr Ballamoody's behalf. If the model which should have been adopted was that advanced by Mr Sutton, no question of less favourable treatment would have arisen. But if the Tribunal's approach to the identification of the hypothetical comparator was not flawed, there is, in the light of the Tribunal's finding of fact, no basis for challenging its unwillingness to draw the inference contended for by Mr Ballamoody. It follows that this appeal must be dismissed.
22. We wish finally to add this. Mr Ballamoody told us that he has applied, now for the fourth time, for his name to be restored to the Register. That application has not yet been considered, no doubt because of this appeal. But before departing from this appeal, we think that it is worth recording what the Tribunal said in paragraph 43 of its Reasons, after it had dismissed Mr Ballamoody's complaints. It said:

43 "Although not a matter which is strictly within the province of this Tribunal, its members felt that it was appropriate to express its sentiments regarding [Mr Ballamoody's] position generally. Although the amount of litigation in which [Mr Ballamoody] has been involved over the years is prodigious, [Mr Ballamoody] presented his evidence to the Tribunal in a calm and moderate manner. He is, as other Courts have identified, an intelligent person. The offences in respect of which he was convicted and for which he was removed from the Register, though obviously serious, were not of a 'heinous' nature. They occurred as long ago as 1992. He had not been found guilty of any misconduct prior to or since those offences, even though he remained practising as a registered nurse unti1 1996. The [Council's] witnesses confirmed that 'all other things being equal', a person in [Mr Ballamoody's] position who had satisfied the Committee as to proper 'insight' into the circumstances leading to his or her removal and had provided clearer and better details and references regarding his activities would most likely have been restored to the Register by now. The Tribunal feels that, if only the [Mr Ballamoody] could make the mental transition from preoccupation with the perceived injustices of the past, concentrate on his skills rather than his weaknesses and realise that it is for him to satisfy the [Committee] that it is safe and proper to restore him to the Register rather than expect it to rectify an 'historic wrong', then the chances are that he cou1d achieve his desired objective of restoration to the Register. He is urged by this Tribunal, hopefully with proper advice and assistance, to revise his approach to the problem. Equally, however, and without any way presuming to have the temerity to seek to interfere with the [Council's] exclusive responsibilities in this area, it may be that any future application for restoration by [Mr Ballamoody], on the assumption he plays his part in the equation, can be considered by the [Committee] in the light that different persons have different personalities and preoccupations and that the 'wood should not be hidden by the trees' when and if the question of [Mr Ballamoody's] suitability for restoration comes to be reconsidered again."

We endorse those remarks in their entirety and wish to be associated with them.