United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR PAUL TROOP (of Counsel) Instructed by: Messrs Thompsons Solicitors Congress House Great Russell Street London WC1B 3LW
For the Respondent	MR NEIL VICKERY (of Counsel) Instructed by: Messrs Eversheds LLP Solicitors Senator House 85 Queen Victoria Street London EC4V 4JL

SUMMARY

Race Discrimination

Novel point decided that the Employment Tribunal erred in concluding that, in a case where there was an issue as to whether the act complained of was by the Respondent (i.e. by someone for whom the Respondent was responsible) the Applicant failed to show that such was the case (so the burden of proof never passed). The Employment Tribunal should have treated such an issue as part of the prima facie case that the Applicant must present so as to transfer the burden of proof to the Respondent to prove that there was no unfavourable treatment by the Respondent significantly influenced by race.


 


THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)

1. This has been the hearing of an appeal by Ms Webster, for whom Mr Troop of Counsel has acted before us, as he appeared for her below, against the unanimous Decision of a Tribunal at Watford, in Reasons handed down on 2 August 2004, that the Respondent, Brunel University, had not discriminated against her or victimised her pursuant to the Race Relations Act 1976.
2. The allegations, which were made by the Applicant against the Respondent, were wide-ranging and complicated, and they are set out in paragraph 1 of the Tribunal's Decision in
   (a)-(f). The Tribunal dismissed all those six claims.
3. The bulk of the claims was based upon a complaint that the University had discriminated against her, itself , by failure adequately to investigate her complaints and in taking, or not taking, various other steps; and there is no appeal against the dismissal of those claims. The only dismissal of a complaint against which the Applicant appeals before us is in respect of what occurred on 27 May 2003 over the telephone, and the appeal has been resisted by the University through Mr Vickery of Counsel, who appeared before us, as he appeared below.
4. The background to the conversation of 27 May 2003 can be taken shortly. There had been complaints by members of the administration staff of the Respondent, particularly in the Accommodation Office, as to the operation of the IT system for which, in part, the Applicant was responsible, because she was employed as a Help Desk Officer, providing IT support to administrative staff of the University; she has been employed with the Respondent since September 1997, and was, it seems from paragraph 7 of the Tribunal Decision, highly regarded in that context by the University.
5. She alleged that the telephone conversation in question occurred as part of an unjustified series of such complaints, and that what she believed (and the Tribunal found) she had heard on the 27 May 2003 was part of an unjustified treatment of her by the accommodation staff. That aspect of her claim was rejected by the Employment Tribunal, and, in particular, her claim that the complaint by the responsible Accommodation Officer that she had been rude and abusive on the telephone to members of the Accommodation Office was one of the complaints that was dismissed by the Employment Tribunal.
6. The only claim, then, that is the subject of this appeal is set out in paragraph 1(a) of the Decision as follows, namely that she had been discriminated against because of her race in that:

"whilst giving advice over the telephone on 27 May 2003, she heard laughter in the background and the word "Paki", arguing that that was an act of racial discrimination and that the First Respondent was vicariously liable."

7. The Tribunal found, in paragraph 106 of its Decision, as follows:

"The Tribunal finds on a balance of probabilities that the term "Paki" was said and heard by the Applicant in her conversation with Ms Myers, on the 27 May 2003."

What is said to have occurred, in relation to which the Tribunal made that fairly minimalist finding of fact, was that, as alleged in paragraph 15 of the Decision:

"Around this time the Applicant received a call from Ms Myers saying that her photo editor was not working. The Applicant asked her to furnish details and she would deal with the request when she was free. During this conversation the Applicant heard constant laughing in the background and the words "Paki" and "e-mail" being used."

8. The suggestion by that Applicant was thus not that Ms Myers, who was a temporary employee in that office, used those words, but that she heard a voice or voices in the background using the words alleged, during the call, and, as we have indicated, the finding by the Tribunal was that the term "Paki" was said, and was heard by her, during her conversation with Ms Myers. No more than that is found. Nothing as to the nature or accent or tone of the voice, or as to how the Applicant heard the words said to have been "in the background" of an internal telephone call used on the ordinary telephone system.
9. On the basis of that finding the Applicant sought to establish both ('complaint 1(a)') a simple finding that that amounted in itself to unfavourable treatment on grounds of race, and also ('complaint 1(b)')that the complaint, to which we have referred, that was made against her, for her allegedly abusive way of dealing with the complaint, was itself influenced by race, and in paragraphs 107 and 108 of the Tribunal's Decision, as we have already said, the latter aspect of the claim was dismissed, and there is no appeal against that finding. Paragraphs 107 and 108 read as follows:

"107) The Tribunal further finds that the Applicant was having difficulties in dealing with the staff of the Accommodation Department, namely Ms Standing, Ms Goldthorpe and Ms Myers for which the Applicant felt she was being given the run around in that the staff of the Accommodation Office should have been able to resolve their problems following the advice she had given. As a fact, the Tribunal find that the advice given had not resolved the problems.

108) The Tribunal does not find on these facts, that an inference can be drawn that the Applicant was being given a difficult time from the Accommodation staff on account of her race. The Tribunal particularly finds that the Accommodation Office is a busy public place of the University and that numerous visitors enter throughout the day, and for which the term "Paki" could have been used by anyone; the Accommodation Staff, as well as any visitor to the office."

10. Mr Troop has told us that in fact he did not pursue in his closing submissions at the end of the tribunal hearing what had been complaint 1(b), which was thus dismissed in any event by the Tribunal, but his complaint is that the Tribunal did not uphold what we have called the simple complaint 1(a), once it had made the finding it did that, on the balance of probabilities, the term "Paki" was said, and was heard by the Applicant, during the conversation.
11. The investigations, to which we have referred, included, sometime later, at the instance of the Applicant and those advising her, the obtaining of copies of e-mails, at any rate some e-mails, sent by members of the staff of the Accommodation Office during the relevant period, and in paragraphs 109-111 the Tribunal assesses the content of those e-mails, noting in paragraph 109 that there was no evidence of the term "Paki" being used in the e-mails

"…although other disparaging remarks had been used which could amount to discrimination. However, as regards the specific allegations of the Applicant, there is nothing to tie the Accommodation staff complained against, to the word "Paki", the basis for the Applicant's complaint."

12. The conclusion in paragraph 112 of the Decision is as follows:

"In these circumstances, this Tribunal does not find any acts for which the Applicant has been treated less favourably so as to amount to an act of discrimination or facts from which an inference of discrimination can be drawn, even allowing for any racist tendencies that may have existed on the part of any of the staff of the Accommodation team."

13. The grounds upon which Mr Troop seeks to challenge the dismissal of this one claim of the Applicant by the Tribunal are twofold. The first can loosely be referred to as a complaint based upon the onus of proof. He submits that what the Tribunal here did was to leave on the Applicant, at all times, the onus of establishing that there was unfavourable treatment on grounds of race, and that it simply decided, applying that onus and looking at all the facts, that she had not proved her case, and consequently the claim fell; whereas he submits that the Tribunal should at least have considered (and had it considered, he submits would have, or at any rate might have, concluded) that the onus should transfer.
14. The second ground, he submits, is that either, on consideration of the transfer of onus or, in any event, even if he lost on the first ground, the Tribunal was perverse in its approach towards consideration of the e-mails. He submits that the Tribunal, having looked at the
    e-mails, and found, as it itself records, that there were "disparaging remarks used which could amount to discrimination", although not the word "Paki", was perverse in two respects at least:

(1) in not taking into account the fact that this was only a sample of e-mails from the relevant department; such that it may well have been that there were other e-mails in which other disparaging comments could have been used, given what the Tribunal itself described as at least a possibility of racist tendencies on the part of staff at the Accommodation Office and such that it ought not to have reached the conclusions it did by reference to that snapshot, without at least taking into account that possibility.

(2) that, even on the basis of the limited e-mails, it was irrational, where unpleasant references to Indians were made in those e-mails, to conclude that that meant that there was not a likelihood that the word "Paki" was used, whereas at best it could be a neutral conclusion and, in his submission, it might even be said to support his case that the word "Paki" was used by an employee in the office, rather than by a visitor, given the racist tendencies that he alleges those e-mails indicate.

15. We are quite satisfied that it is not possible for the Applicant to succeed on this ground of perversity. The cases in the Court of Appeal, most recently in Crofton v Yeboah [2003] IRLR 632, have made the position entirely clear, namely that this Appeal Tribunal, even if it would have reached a different decision from the Tribunal, is not entitled to substitute that view and is not entitled to say that the Tribunal was wrong. In order to establish perversity there has to be an overwhelming case either that there was no evidence upon which the Tribunal could reach the conclusion it did, or that the conclusion was so startlingly wrong that it can only be said to be totally perverse. It is emphasised again and again by the Court of Appeal, and indeed by this Appeal Tribunal, that the industrial jury is the judge of the facts, and if this industrial jury reached the conclusion it did, then there is no ground upon which we would think it appropriate to interfere, on the basis of the submissions made to us by Mr Troop.
16. But that leaves Mr Troop's first ground, which introduces, it seems to us, an important question of law. The starting point for argument was the formula put forward by H.H. Judge Ansell in Barton v Investec Henderson Crostwaith Securities Ltd [2003] IRLR 332, and, in particular, paragraph (8) of the guidelines which he sets out in that case at paragraph 25, to which we will return. But the real starting point is not simply the Council Directive, as Mr Troop submitted, but the terms of the statute, namely in this case section 54A of the Race Relations Act 1976, by which statutory provision is made for the transfer, in appropriate circumstances, of the onus of proof.
17. There is no doubt at all that in, at any rate, all reported cases of which we know, the question of when the onus of proof passes has been looked at in the context of facts being found, involving the respondent or its employees, which require an explanation; in the sense of whether or not facts from which a discriminatory conclusion could be reached have an alternative innocent explanation, the onus being upon the respondent to oust the prima facie interpretation given by the applicant that there was unfavourable treatment on grounds of race or sex, by establishing some alternative explanation.
18. In Sinclair Roche & Temperley v Heard [2004] IRLR 763, we said (at paragraph 10) that:

"Such explanations, if any, must be fully considered and:

(i) it may be, either obviously or after analysis, that there is no explanation;

(ii) there may be an explanation which only confirms the existence of discrimination;

(iii) there may be a non-discriminatory explanation which redounds to its discredit, e.g. it always behaves this badly to everyone;

(iv) there may be a non-discriminatory explanation which is wholly admirable;

but the employment tribunal must address the respondent's response."

19. The facts of this case, however, are different from a normal case in which the transfer of the onus of proof and then the looking to the Respondent for an explanation have been considered. The facts here are stark. The Applicant asserted that she had heard the words in question over the telephone when she was speaking to a fellow employee in the Respondent's premises, and the Tribunal has found that those words were used. It is, perhaps, a surprising conclusion of fact by the Tribunal, and its concise finding, which we have recited, at least leaves open the possibility even that the word, if heard, could have been heard by way of some kind of interference on the line. But that there is a finding of fact that the Applicant heard the words, and that words were said by someone, is clear.
20. The issue then is whether those words were used by an employee of the Respondent. The Applicant says that it falls on the transfer of the onus side of the line to do that which the Tribunal here did, namely make a conclusion that there was no unfavourable treatment by the Respondent because, in the paragraph which we have recited, it refers to the large number of people who may well have been coming in and out of the Accommodation Office. Consequently the Applicant submits that what ought to have been done was that the Tribunal ought to have concluded that there could have been discriminatory treatment by the Respondent because the treatment alleged, which the Tribunal found, could have been by an employee of the Respondent, and then transferred the onus.
21. Mr Vickery submits, however, that before the onus passes it is necessary for the Applicant to establish that there was unfavourable treatment by the Respondent from which inferences could be drawn that that treatment was discriminatory on grounds of sex or race, and it is only at that stage that the onus transfers to the employer.
22. We shall turn to any question of policy which arises, but it is first necessary to look at the statutory context. The relevant Directive, to which Mr Troop has drawn our attention, is Council Directive 2000/43/EC, and in the preamble to that Directive the words used are:

"(21) The rules on the burden of proof must be adapted when there is a prima facie case of discrimination and, for the principle of equal treatment to be applied effectively, the burden of proof must shift back to the respondent when evidence of such discrimination is brought."

By Article 8(1), under the heading "Burden of Proof" the Directive states

"Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment."

23. The result of the need for compliance with that Directive was the amendment to the Discrimination Acts, and for our purposes the relevant section is section 54A of the Race Relations Act 1976, which reads as follows:

"(2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent -

(a) has committed such an act of discrimination or harassment against the complainant…

the tribunal shall uphold the complaint unless the respondent proves that he did not commit… that act."

24. It is in that context that the guidance by Judge Ansell was given in Barton. The relevant paragraphs of that guidance (which related to a sex case, but applies of course to race also) are as follows:

"(1) Pursuant to section 63A of the Sex Discrimination Act 1975, it is for the Applicant who complains of sex discrimination to prove on the balance of probabilities facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the Respondents have committed an act of discrimination… These are referred to below as "such facts"

(2) If the Applicant does not prove such facts he or she will fail.

…

(8) Where the applicant has proved facts from which inferences could be drawn that the Respondents have treated the Applicant less favourably on the grounds of sex, then the burden of proof moves to the respondent.

(9) It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed that act."

Guideline 10 in Barton has been subsequently disapproved by another constitution of this court, namely in Chamberlin Solicitors v Emokpae [2004] IRLR 592, a decision with which we agree, but that is not relevant to the consideration in this case.

25. The guidelines in Barton were subsequently considered by the Employment Appeal Tribunal in University of Huddersfield v Wolff [2004] IRLR 534 in which I said, giving the judgment of the Tribunal, the following, at paragraph 26:

"The right course, therefore, for the Tribunal, had it set out at first to find material facts, ... would be to address section 63A and, in particular, to conclude that the burden moves where the applicant has proved facts from which inferences could be drawn that the Respondents have treated the Applicant less favourably on the grounds of sex. It must therefore arrive at a conclusion that there is a prima facie case that the respondent has treated the applicant less favourably on the grounds of sex. Once it has done that, then it passes to consider the respondent's explanations; it must, if it has not already done so, make findings of fact, or draw inferences from findings of fact, for the purposes of concluding whether any of the explanations put forward by the Respondent satisfy them, the burden being on the Respondent to show that the less favourable treatment was not on the grounds of sex."

And at 28:

"Once the burden is reversed, of course, the burden falls upon the Respondent in the manner described by Judge Ansell in Barton, and the explanations have to be looked at. It is the more important that there be appropriate findings on the basis of which the prima facie case of less favourable treatment on the grounds of sex are made, and, of course, above all that there is such a prima facie finding, because it is only once there is such a finding that the Respondent knows, and thus the Tribunal knows, what the Respondent has to justify."

26. In paragraph 10 in Sinclair Roche & Temperley, to which we have referred above, I said as follows:

"The general structure required for a discrimination finding by an employment tribunal is now clear from the decisions of Barton v Investec Henderson Crossthwaite Securities Ltd [2003] ICR 1205, as supplemented by the decisions in University of Huddersfield v Wolff [2004] IRLR 534 EAT/0596/02, and Chamberlin Solicitors v Emokpae EAT/0989/03 (at paragraphs 32 to 40). The tribunal must set out the relevant facts, draw its inferences if appropriate and then conclude that there is a prima facie case of unfavourable treatment by reference to those facts (identifying it), and then look to the respondent for an explanation to rebut the prima facie case. The employment tribunal must plainly make quite clear what the unfavourable treatment is which is prima facie discriminatory, so that the respondent can understand what it is that it has to explain."

27. The wording of Judge Ansell in guideline 8, to which we return, says:

"Where the applicant has proved facts from which inferences could be drawn that the Respondents have treated the Applicant less favourably on the grounds of sex, then the burden of proof moves to the respondent."

This sits easily within the usual context in which this question arises, namely that the facts are proved, for example that a particular employee of the respondent has done something, and the question is whether inferences are to be drawn from those facts that the treatment, which is established to be prima facie unfavourable on the grounds of sex, was on those grounds, or could be found to be on those grounds, or whether there is some other non-discriminatory explanation, which the tribunal looks to the respondent to provide.

28. Effectively what Mr Troop has submitted to us, however, is that that guideline should not be limited to such a situation. To meet his submission there could be a rewriting of the guideline, so as to read:

"Where the applicant has proved facts from which conclusions could be drawn that the Respondents have treated the Applicant less favourably on the grounds of sex…"

His case is that all the applicant has to do is to establish what could be called the "could" stage and that he or she can do that by establishing, as the Tribunal here was satisfied there were established, facts which include a finding from which it could be inferred or concluded that the treatment in question was not only unfavourable and on grounds of sex, (both of which of course are necessary ingredients), but – an even more necessary ingredient – was by the respondent, and that the latter will be necessary where there is an issue as to whether the conduct in question was by a respondent.

29. In the course of argument we put examples to Mr Troop which are perhaps more realistic that the somewhat unusual circumstance here of the alleged overhearing of background words used on the telephone. One such example was if an employee entered a room and, as he or she enters the room, believes, and is found to be correct in the belief, that he or she had heard someone in the room using words which could, unless otherwise explained, amount to unfavourable treatment on the grounds of race; but that it is not clear which person in the room used the words, and some people in the room are (and some are not) employees of the Respondent. Mr Troop submitted that in that example the onus on an applicant is only to establish that something was said which could have been said by the respondent i.e., at any rate assuming that there is a sufficient proportion of its employees in the room, to have been prima facie said by the respondent. It is not up to the applicant to prove that they were said by any particular person, who is then shown to be an employee of the respondent. It is sufficient for the applicant to establish a prima facie case and the burden of explaining then passes to the respondent. Such explanation, submits Mr Troop, not only includes an explanation as to why the conduct was not discriminatory, which would be the normal case, but also an explanation as to why it is that the act or treatment, which looks as though it was by the Respondent, was not in fact by the Respondent because it was not by one of its employees.
30. The guidelines in which Judge Ansell laid out in Barton are helpful but are no substitute for the statute and indeed it has, on occasions, been suggested that they are, in any event, too prolix. In the University of Huddersfield v Wolff case, and in the Sinclair Roche case, to both of which we have referred, I sought to summarise what Judge Ansell was there saying by indicating that what was necessary for the Applicant was to establish a prima facie case of unfavourable treatment on the relevant prohibited ground by the respondent, by reference to findings of fact, before looking to the respondent for an explanation to rebut the prima facie case. If that is, in broad terms, the right way of approaching the statute, then the establishment of a prima facie case would include, on Mr Troop's case, the establishment of a prima facie case not only that the unfavourable treatment occurred, not only that an inference of the relevant discrimination could be drawn from it, but also that it was by the respondent.
31. We are satisfied that, in fact, that can be made good by looking at the wording of the statute itself. In Article 8(1) of the Directive the word "presumed" is used, which is neither the word "inferred" (or "inference") nor the word "concluded" (or "conclusion") in the discussion of the Barton Guidelines which we had with Mr Troop, in the course of argument, to which we referred above. But the statute appears to us to be straightforward and simple. We repeat it:

"Where… the complainant proves facts from which the tribunal could… conclude in the absence of an adequate explanation that the respondent has committed… an act of discrimination… the tribunal shall uphold the complaint unless the respondent proves that he did not commit… that act."

It appears to us that, even without purposive construction, that means that the onus of proof transfers to the respondent once it is prima facie established that there was an act of discrimination by such respondent.

32. So far as policy is concerned, Mr Troop submits that it is part of the intention of the Directive that life should not be made difficult for an employee alleging discrimination, at any rate any more difficult that it in any event is to establish discrimination, and that it is, in fact, in any event the appropriate task for the employer to produce the evidence which will show that a prima facie act of unfavourable treatment was not in fact by one of his employees. It will, in fact, not differ greatly from the onus which is in any event on an employer to obtain the benefit of the statutory defence under section 32 of the 1976 Act.
33. Mr Vickery resists this submission, and he argues that before the onus passes there must at least be a finding, on the balance of probabilities, that the act in question was by the respondent, and he submits that the word "could" only then applies to the consequences thereafter. He not only points to the difficulties which will be placed on an employer, but also to the difficulties which may be placed on a tribunal in resolving the issue as to when to transfer the onus. In the example which we quoted, it may depend, submits Mr Vickery, on how may people there are in the room at the time when the applicant asserts that he or she heard the offending words, and how is the tribunal to know when to transfer the onus if there are 100 people in the room, of which only some are employees of the respondent.
34. We are satisfied that we are not, in any event, doing other than interpreting the statute, albeit this may be the first time that the statute has been so interpreted. We believe that the industrial jury will have no difficulty in applying the prima facie case formula to this issue, as to all other issues to which they must apply that test. It will be for a tribunal to ask itself, having found the facts as to what occurred, whether the treatment, which it, on the balance of probabilities, has established, could have been by the respondent. If it concludes that it could not have been by the respondent under any sensible view of a prima facie case, e.g. in the given example that there were 100 people in the room, 30 of whom were employees and 70 non-employees, then it may well be that the tribunal would find that the necessary prima facie case is just not established. But the central issue is going to be where the onus lies: whether the applicant must show that the treatment or the words were by an employee, and we are satisfied that that burden should not remain upon the applicant, once a prima facie case has been established.
35. Mr Vickery has made a submission that, by making the finding it did in paragraph 112, this Tribunal was in fact making a finding that there was no treatment of the Applicant by any of the employees without reference to the onus, such that it could be said that they may well have, without saying so, transferred the onus to the employer. We do not believe that that is a proper reading of the Decision, not least because we suspect that, at least until this judgment, no employment tribunal will have concluded that the onus did pass, because we know of no reported decision in such a case as this. But if and insofar as he is submitting that even if the Tribunal had correctly addressed itself as to the onus it would have reached the same conclusion, we do not feel ourselves sufficiently confident in that regard. We find the conclusion of the Tribunal as to the hearing of words in the background of the telephone conversation on 27 May difficult enough to understand that we are unable to put ourselves into the minds of this Tribunal so as to conclude what it would have decided had it specifically directed itself, in terms, as to whether the onus of proof had passed.
36. We are satisfied that any tribunal in a case such as this ought therefore, in future, to direct itself, by reference to section 54A, where there is an issue as to whether treatment complained of by the applicant, which is said to amount to sex or race discrimination, was by an employee of the respondent, that the same prima facie test applies to that question as to applies to all other questions in relation to race and sex discrimination; and that once the facts have been found on the balance of probabilities, from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed such an act, then the tribunal will uphold the complaint unless the respondent proves that he did not commit the act or, in the relevant case, that it was not an employee for whom he is vicariously liable who committed that act.
37. We are clear that this case must be remitted to the Employment Tribunal. There has been some suggestion as to whether the part-time Chairman would be available in the near future to hear the case, but, quite apart from that, we are satisfied that, as Mr Troop submits, there ought to be a hearing before a different tribunal. The reason why we do that, and we take into account the guidelines given in relation to sending matters back to tribunals, given in Sinclair Roche & Temperley itself, is that we believe that, if this test is now to be applied as it should be, it will require more thorough consideration by a tribunal of the facts before the tribunal can be sure that the onus can transfer, exactly as we indicated ought to be the case in Sinclair Roche itself. Because the Tribunal may not have appreciated the significance of the brief findings of fact that it was making in paragraph 106 of the Decision, it may find it difficult to reconsider those facts, now it knows that it must apply the test which we have laid down in this judgment.
38. We are satisfied that this matter should be sent back to a fresh tribunal to conclude:

(i) What precisely occurred on 27 May 2003?

(ii) Was there a prima facie case of unfavourable treatment by the Respondent, ie by someone for whom the Respondent is vicariously liable?

(iii) If so, upon the burden of proof passing, whether the Respondent can establish that there was no unfavourable treatment, by one of its employees, of the Applicant, significantly influenced by race.

(iv) If there were then a finding against the Respondent, the statutory defence under section 32 would then arise, which did not arise before this Tribunal because the claim was dismissed.

39. In those circumstances this appeal is allowed on Ground 1 only, and is remitted to a different tribunal.