United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS CLAIRE McCANN (of Counsel) Instructed by: Royal College of Nursing Legal Services Department 20 Cavendish Square London W1G 0RN
For the Respondent	MR T SHEPPARD (of Counsel) Instructed by: Croner Consulting Croner House Wheatfield Hinckley Leicestershire LE10 1YG


 


HIS HONOUR JUDGE PETER CLARK

1. This appeal, brought by Mrs Odenore against a decision of the Watford Employment Tribunal, promulgated with Extended Reasons on 21 June 2002, dismissing her complaint of direct racial discrimination against her former employer the Respondent, Associated Nursing Homes Ltd, raises the following questions of law:

(1) whether the Tribunal made all the necessary findings of primary fact;

(2) whether the Tribunal correctly approached the comparison to be made between the Applicant and an actual or hypothetical comparator;

(3) whether they correctly approached the drawing of inferences arising from their findings of fact;

(4) whether they gave adequate reasons for their conclusion that the Applicant's complaint was not made out.

Findings of Primary Fact

2. As Sedley LJ made clear in Anya v University of Oxford [2001] ICR 847, in deciding a complaint of direct racial discrimination it is first necessary for the Tribunal to make findings of primary fact on incidents and events said by the Applicant to indicate less favourable treatment on racial grounds.
3. At paragraph 5 of their Extended Reasons the Tribunal set out their findings on the incidents relied on by the Applicant in her Originating Application and in evidence. That exercise has been completed with one exception, so Ms McCann submits.
4. The Applicant, a black Nigerian woman, was employed by the Respondent from 19 February until 7 August 2001 as a staff nurse at their Middlesex Manor Nursing Centre. It was her case that after Mr Sheba Chengun took over management of the centre in July 2001 he subjected the Applicant to a campaign of harassment because of her African origins. He treated her less favourably than he treated or would treat non-African staff.
5. It is submitted by Ms McCann that one of the eight incidents on which she (the Applicant) relied was that Mr Chengun shouted at her for not adhering to a new breakfast time, of which the Tribunal found she was unaware (see reasons paragraph 5 (c)).
6. Having considered the Applicant's witness statement (paragraph 6) which refers to Mr Chengun berating her, and the way in which this part of the case was put by the Applicant's representative below, not Ms McCann, we are not persuaded that there is anything in this point. We are satisfied that the Tribunal made all necessary findings of primary fact based on the evidence and argument before them on this particular allegation.

The Comparison

7. Based on their findings of primary fact, the Tribunal concluded that the Applicant had been badly treated and unreasonably treated by the Respondent and in particular Mr Chengun. We take one example, dealt with at paragraph 5 (b). It was the Applicant's complaint that she had been chastised by him for taking the blood pressure of a dying patient, whereas an Asian nurse who similarly acted was not so criticised.
8. The Tribunal found that the Applicant was criticised by Mr Chengun and there was no reason for that criticism. However, they failed to make a finding as to the similar incident involving the Asian nurse. That finding was necessary to determine whether the Applicant had, in this instance, been less favourably treated than the actual comparator put forward.
9. A further example, dealt with in part at paragraph 5 (c) of their reasons, concerned the breakfast time incident. It was the Applicant's evidence that she had not seen Asian staff similarly treated. Yet the Tribunal made no finding as to whether there was a difference in treatment between the Applicant and her Asian comparators.
10. We have concluded that these two examples illustrate a wrong approach by the Tribunal. The sequence to be followed is this: was there a difference in treatment between the Applicant and an actual or hypothetical comparator; was there a difference in race; was the treatment afforded to the Applicant less favourable than that afforded to her comparator; if so, has the Respondent provided an adequate explanation for the difference in treatment; if not, should the Tribunal draw an inference on unlawful discrimination on grounds of her race? See King v Great Britain China Centre [1992] ICR 516.
11. Instead, the Tribunal appears to us to have gone straight to the House of Lords guidance in Zafar v Glasgow City Council [1998] ICR 120, where Lord Browne-Wilkinson makes clear that unreasonable treatment by an employer will not, of itself, amount to less favourable treatment on grounds of race.
12. Their overall conclusion is expressed at paragraph 8 thus:

8 "The Applicant's case relies heavily upon her contention that Mr Shengun [sic] conducted a campaign against African staff with a view to making it easier to employ Indian or West Indian staff in their place. This contention is not made out by the Applicant. She was, as we have said, badly treated, but not necessarily less favourably than someone in the position of her hypothetical comparator. The burden of proof is upon her and she has failed to discharge that burden."

13. Although the Tribunal was perfectly entitled to reject the Applicant's broad case that Mr Chengun was conducting a campaign against African staff with a view to recruiting West Indian or Indian staff, that does not deal with the specific incidents of less favourable treatment in which actual comparators were invoked. To say that the Applicant was badly treated but not necessarily less favourably than someone in the position of her hypothetical comparator does not answer the questions which we posed earlier in accordance with King, itself approved by Lord Browne-Wilkinson in Zafar.
14. The real difficulty, we think, is that the Tribunal proceeded on the basis that the Applicant's case was based solely on hypothetical comparators, whereas in at least two instances she compared herself with actual comparators. There are no findings as to whether those comparators were more favourably treated than the Applicant or not. Since it is Mr Sheppard's submission before us that the Employment Tribunal gave adequate reasons for their conclusion that there was no less favourable treatment; if we reject that submission it follows that the further steps in the King approach were not followed and this appeal must succeed.

Inferences

15. It also follows that having failed to make all necessary findings on the comparative incidents relied on by the Applicant, the Tribunal was not in a position to decide whether any adverse inference should be drawn (it does not necessarily follow) if they concluded (1) that there was a difference in treatment, (2) a difference in race, (3) an inadequate explanation by the Respondent had been given, having stood back and looked at those incidents cumulatively in order to decide whether the inference should or should not be drawn. See Qureshi v Victoria University of Manchester [2001] ICR 863 (EAT, Mummery P), cited with approval in Anya, paragraph 9.

Adequate Reasons

16. We have concluded that the Tribunal has failed to give adequate reasons for its unreasoned conclusion expressed at paragraph 8 of its reasons. Although, as Mr Sheppard submits by reference to the judgment of Arden LJ in Tran v Greenwich Vietnam Community [2002] IRLR 735, paragraph 40, terse reasons may be enough, the reasoning leading to the Tribunal's conclusions in this case, in our judgment, is insufficient. The parties do not know why they have won and, particularly in the case of the Applicant, why she has lost. In our judgment, these reasons are not "Meek compliant", to use the expression coined by Sedley LJ in Tran, paragraph 17.

Conclusion

17. It therefore further follows, in our judgment, that this decision cannot stand. The appeal is allowed and the decision set aside. Contrary to Ms McCann's submissions, first, we find ourselves quite unable to determine whether or not this complaint is made out correctly applying the law. Second, we agree with Mr Sheppard that on remission the matter should be heard by a fresh Employment Tribunal, lest there be any perception of the first Tribunal forming a concluded view prior to the remitted hearing. Accordingly the matter is remitted to a fresh Tribunal for complete rehearing.