United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant

MR JOHN HENDY QC (Of Counsel) Instructed by Messrs Alison Trent & Co Solicitors 149 Fleet Street London EC4A 3DL

For the Respondent

MR THOMAS COGHLIN (Of Counsel) Instructed by Messrs Beachcroft Wansbroughs Solicitors 100 Fetter Lane London EC4A 1BN

SUMMARY

Race Discrimination and Working Time Regulations

Indian male doctor treated less favourably than a black African female in relation to vocational training. (Sex Discrimination Act 1975 s 14; Race Relations Act 1976 s 13) but Employment Tribunal failed to give reasons for rejecting his arguments once the burden of proof passed to Respondent to prove there was no discrimination. Applying Sinclair Roche this appeal was allowed and this aspect remitted to same Employment Tribunal to hear argument and reach a fresh Judgment, with reasons. Parties to report to the Employment Tribunal on ACAS conclusion


 


HIS HONOUR JUDGE MCMULLEN QC

1. This case is about the adequacy of reasons given by an Employment Tribunal for its findings that less favourable treatment of an Indian male trainee doctor by a training body was not on the ground of race or gender. The Judgment represents the views of all three members. We will refer to the parties as Claimant and Respondent.

Introduction

2. It is an appeal by the Claimant in those proceedings against a reserved judgment of an Employment Tribunal sitting over a number of days at London (Central), Chairman Mr BC Buckley, registered with reasons on 14 December 2004. The Claimant was represented by junior counsel and today by Mr John Hendy QC. The Respondent was represented there and here by Mr Coghlin, of Counsel. The Claimant claimed race and sex discrimination. The Respondent denied the claim on the merits.

The issue

3. The essential issues as defined by the Employment Tribunal was to examine the treatment by the Respondent of two doctors applying to train as general medical practitioners and to decide if the Claimant was the object of race or sex discrimination. The nature of the discrimination was that he had been required to submit to a competitive interview and his comparator had not. The Tribunal decided that there was less favourable treatment of the Claimant in those circumstances but it was not on the ground of race or gender. Thus, the Claimant had proved half of his case but lost when the burden shifted to the Respondent to produce explanations which the Tribunal accepted.

The legislation

4. The relevant provisions of the legislation are set out in the Reasons of the Employment Tribunal. are not in dispute and need not be recited here. Section 14 of the Sex Discrimination Act 1975 and section 13 of the Race Relations Act 1976 expose a body responsible for vocational training to liability for unlawful discrimination. The Tribunal directed itself by reference to the principal provisions of the Acts, noting that it was concerned with a training case, and to what we hold to be the leading authorities which are cited in its reasons in considerable detail. It is unnecessary for us to recite them as it is accepted by Mr Hendy, with one complication, that they are correct.

The facts

5. The Respondent is The London Department of Postgraduate Medical and Dental Education General Practice Education and Training.. It is known as the London Deanery and is formally the University of London. It is responsible for the training of general practitioners, in London at, among other places, Newham Hospital in East London and North Middlesex Hospital in North London. The actors in this drama are female: Dr Anthea Lints who is the relevant officer of the Respondent and who is by ethnicity white Scottish; Dr Jennifer Darkwah who is the Claimant's comparator and who is black African; and Dr Sarah Lightowlers, who is a Consultant in Psychiatry at the comparator's hospital, Newham. There was no evidence as to her ethnicity.
6. The male Claimant is a medical practitioner who came to England some ten or so years before these relevant events. He is of Indian origin and had done medicine in this country for 10 years or so. By about the age of 40 he had decided that he wished to train as a general practitioner for which there is now a comprehensive regime of supervised training. This involves a period in specialist disciplines during which there is a requirement to undertake fortnightly sessional training in general practice, followed by 12 months on the general practitioner registrar programme, known as the GPBTS programme.
7. The Claimant and his comparator, Dr Darkwah had come across each other because they were both provided with advertising material indicating that they would be considered for the process at the hospitals to which we have referred and at which they respectively wound up, the Claimant at North Middlesex and Dr Darkwah at Newham. The impression given to them was that they would attend as a Senior Health Officer (SHO) in their respective discipline, the Claimant in A&E and Dr Darkwah in Care of the Elderly. They then would go through an interview which is confusingly known as a formality but which they appreciated would be effected in a non-competitive way. They then would engage upon the remainder of the planned training which would consist of, as we have said, 12 months on a General Practitioner Registrar.
8. The Respondent had created confusion about the way in which these doctors should continue their vocational training and each of them had good grounds to believe that the description that we have given above would be applied to them. The Claimant accepted his position specifically on the basis that he was being offered part of a training programme and not simply a six month contract as SHO in A&E at North Middlesex. In due course, each of them was invited to an interview. The Claimant found that he was in competition with others for the GP Registrar position and he failed. He has not been appointed following the completion of his SHO programme, and has been unemployed for the best part of the succeeding two years.
9. A question was originally raised about the circumstances of the comparator. Would credit be given for the time served in particular disciplines in full or only in part? The control of such questions is in the hands of the Joint Committee which is responsible for the accreditation of medical and surgical practitioners. She, however, had a supporter in the form of Dr Lightowlers who intervened with the result that the Respondent effectively changed the basis upon which her programme would be continued. It was decided by Dr Lints that she need not attend any formal interview and that the matter was to be left to the relevant senior practitioner, Dr Jones to decide.
10. In fact she did have an interview but as Dr Jones put it this was simply a chat and may well have been the sort of interview that the Claimant and Dr Darkwah envisaged they were going to get in any event. The exchange of email between Dr Lints and Dr Jones is telling for Dr Lints said, "Could you do the necessary 'informally'". It was suggested by Dr Lints (speaking of Dr Jones). "I give him authority to recommend that she be appointed to a GPR posting … without further interview if he feels fit. This is an exceptional and unrepeatable arrangement that I have made with him." In response he said engagingly, "The deed is done." Thus it was that Dr Darkwah continued the programme.
11. However, the Claimant's case was treated differently and when he attended at his hospital he was given an interview which was rigorous and which was in competition with others. He failed to reach the necessary score. He claims that the reason for this was sex and/or race discrimination.
12. The Tribunal upheld his claim that there were reasonable grounds for his belief that he was on an 18 month programme, that the Respondent had caused whatever confusion there was in his mind about this, it was shared by North Middlesex Hospital, and that he was treated less favourably than Dr Darkwah. Applying the approach in Barton v Investec (now see Igen v Wong [2005] ICR 931 CA at 956 Annex) the Tribunal turned to the Respondent for an explanation. The Tribunal accepted that there was no intention to mislead or confuse either the Claimant or Dr Darkwah but that the confusion arose from the apparent novelty of the appointment to posts in this region. The responsibility for that was laid squarely at the door of the Respondent.
13. The Tribunal made a number of critical findings against Dr Lints about being the cause of the confusion and about her seeking to rationalize what had already occurred. She also made a personal judgment against the Claimant which is as follows:

"6.19 Although she had not met the Claimant she formed a view of him by 5 May 2003 that he may not be the type of personality who would be suitable as a GP. This view was said by Dr Lints to be based upon his correspondence and telephone calls and upon information which she had been given about an incident which had allegedly occurred in the staffing department at Newham General Hospital, when the Claimant was making enquiries on 11 October 2002 as to whether Dr Darkwah was going to accept the post on offer to her.

6.20 We do not consider that the view expressed by Dr Lints in correspondence to the BMA on 5 May 2003 unfairly influenced her as to whether he should have been required to attend a competitive interview on 3 April 2003 or caused her to maintain her stance that he was not appointed to a "fully packaged" GP VTS. In any event it was not a view which we inter was formed on the basis of the Claimant's race or sex."

14. The Tribunal decided that there were no grounds on which Dr Lints could have formed that view of the Claimant. Thus far the Tribunal had decided to uphold the Claimant's case. There was an apt comparator in all respects. It may well be said that he was more appropriately qualified because in respect of his case there was no issue whether his service in a particular discipline would be regarded as full or part time. He had identified treatment given to both of them and identified that while on the one hand she had been waived through with an interview which was informal, he had gone through a competitive interview and had failed.
15. The Tribunal turned to its assessment of the evidence of the Respondent. And said this:

"7 The Tribunal's Conclusion

We are satisfied by the Respondents' evidence, in particular from hearing Dr Lints and analysing the correspondence, that the Claimants' less favourable treatment when compared with Dr Darkwah was not on grounds of his race or sex. The Respondents' evidence portrays genuine confusion caused by the manner of dealing with the new NHS Trust converted posts, after they had been returned to the Trusts. In the case of Dr Darkwah her situation was improved by the intervention of her Consultant at Newham and she was consequently treated more favourably than the Claimant. This was not for reasons of race or sex."

The Claimant's case

16. The Claimant essentially made one submission. It is contended that this was a case which lacked reasons for the Tribunal's judgment and without going so far as to indicate what the only conclusion would be, it is simply said that the Tribunal had erred in law in failing to provide adequate reasons. The analysis of the Tribunal's depiction of the law was helpfully subjected to a careful analysis by Mr Hendy himself. But he indicated that there was really no significant change. The key issue in the case was whether or not the Claimant should have been subjected to a formal interview.
17. The sole basis of the Tribunal's findings about the intervention of Dr Lightowlers did not explain the reason for the treatment of on the one hand Dr Darkwah and on the other the Claimant. In a graphic image, he suggested that while Dr Darkwah and the Claimant were standing outside the door admitting to general practitioner/registrar status, Dr Darkwah had the advantage to be accompanied by Dr Lightowlers and on that basis had been admitted whereas he had not. Simply to say that there was an intervention by Dr Lightowlers did not provide an explanation for the Respondent which was free of gender and race taint.
18. Dr Darkwah was called before the Employment Tribunal by the Tribunal itself and was cross-examined by both sides. In written arguments before the Tribunal by then Counsel for the Claimant, eight points were made relating to the explanations put forward by the Respondent. These explanations were inconsistent, changed and were not borne out by the other evidence which the Respondent had been promoted to bring. Examination of the agreed notes of evidence at the hearing indicated withdrawal of certain aspects of the case made by the Respondent and acceptance by Dr Lints in particular of either mistakes or lack of logic and inability to explain various stages.
19. It is contended that the point made by Dr Lints about intimadatory conduct by the Claimant was unfair and should not have been part of the reasoning of the Respondent. The Tribunal had failed to address itself to the possibility of unconscious discrimination and this was particularly focused upon the view taken by Dr Lints of intimidation. And by reference to the two leading authorities the Tribunal had failed adequately to explain its reasons. These are Anya v University of Oxford [2001] EWCA Civ 405 and Deman v Association of University Teachers [2003] EWCA Civ 329. It was contended that statistics were not dealt with by the Tribunal.
20. It was contended that this matter should be the subject of a remission to a different Employment Tribunal for it to decide the second stage in a case where a burden of proof had shifted.
21. Finally, it was contended that it was not sufficient for the Tribunal to have formed the view and decided that the Respondent was genuine, by implication not dishonest. This does not provide an explanation for the Respondent's treatment of on the one hand the Claimant and on the other Dr Darkwah.

The Respondents' case

22. The view given by the Respondent was consistent throughout that both of the practitioners were on the same parallel tracks. That they were not on what was described as a fully packaged programme and each would have to be re-evaluated by way of some secondary process at the end of their SHO training. The crucial question to determine was why there was a different treatment of the two practitioners. This was given by Dr Lints as being the intervention by Dr Lightowlers who had spoken in glowing terms of Dr Darkwah. On that basis, the Respondent had justified its treatment of Dr Darkwah enabling her to sidestep its own requirement that there should be an interview on a competitive basis.
23. The Tribunal had considered whether the explanation for the action was of the Respondent acting disingenuously or with the intention to discriminate. As to the intimidatory behaviour upon which Dr Lints formed a judgment, the Tribunal did consider this matter and it was submitted that the guidance in the authorities was adopted by the Tribunal.
24. The statistics were directly not referred to by the Tribunal. An objection had been taken by Mr Coghlin at the written submission stage. No opening had been made by the Claimant's Counsel as to the use of the use of these statistics and there had been no case put by the Claimant to Dr Lints about the implication in race or gender terms of the particular figures. It was accepted that in a discrimination case the bar for determining whether or not a tribunal has given sufficient reasons is set higher than in unfair dismissal cases and the Tribunal had nevertheless surmounted it. A limit had been set on the scope of the judgment by a judgment of the Court of Appeal in Miriki v Bar Council [2002] ICR 505 at para 45.
25. If the matter came to be remitted to the Employment Tribunal further limited steps should be taken. It was contended that there was no bar applying the sequence of reasoning and factors in Sinclair Roche [2004] IRLR 763 and remitting to the same Tribunal.

The legal principles

26. The legal principles to be applied in this case appear to us to be as follows:

(1) An Employment Tribunal is required to give reasons for its principal findings in any disputed case, see for example Burns v Consignia (No 2) [2004] IRLR 425.

(2) Not every point in contention must be adjudicated. See Miriki above.

(3) The full rigour of Anya above has been tempered by the citation from with Miriki that indicates that not every single point must be the subject of an express finding.

(4) An Employment Tribunal should make findings and give reasons for the primary facts which it finds and inferences it draws; and equally important, for the decision not to draw an inference when asked to do so. See Deman above at Paragraph 46 Potter LJ giving the judgment of the Court.

(5) It is not a legal requirement for an Employment Tribunal to set out the statute and all the relevant case law as long as it has clear in its mind the principles to be applied. There is however, an inherent danger, if the statute to be applied is not cited. See Miriki.

(6) Failure to provide proper findings or reasons for findings and conclusions may result in the judgment being set aside or it may be remitted by the Employment Appeal Tribunal to the Employment Tribunal for further reasons.

(7) When deciding on the disposal of an appeal the factors in Sinclair Roche should be considered.

Conclusions

27. We uphold the submissions of the Claimant and allow the Appeal. This is indeed an inadequate reasons case. The Tribunal failed to give reasons in response to the submissions of Counsel relating to the explanation of the Respondent. This is the point in the proceedings where the focus is on the Respondent by reason of the shift in the burden of proof.
28. The explanations advanced by the Respondent were summarized by Counsel for the Claimant in written form. They were not all in our judgment powerful submissions. But that is not the correct perspective. We do not know what the Tribunal's response was or would have been. These are summarized in paragraphs (i) to (viii) in the Skeleton Argument of Mr Mahmood advanced on behalf of the Claimant by Mr Hendy today. Thus, having examined each one, the Tribunal was bound at least to respond if only in a line or even a phrase to submissions which had been made. Each of them, we are satisfied, was based upon an analysis of the evidence which was produced orally and in writing, and each one required to have a response, so that the parties could see how that argument had fared before the Tribunal.
29. We then turn to the complaint that the Tribunal had failed to consider unconscious or subconscious discrimination. As we have indicated the Tribunal did not err by failing to set this out in full. The reference to the Barton guidelines and the reference to Bahl v Law Society [2004] IRLR 799 necessarily involves an excursion into consideration of the judgment of the House of Lords in Nagarajan v London Regional Transport [1999] ICR 877 which is the leading authority on unconscious discrimination.
30. Thus, the Tribunal did not err in failing explicitly to cite an authority relating to unconscious discrimination. We note that it could be included in the template currently going the rounds in the Employment Tribunals and which has turned up in this and in other cases. It will need to be modernized and we would recommend that a self-direction of unconscious discrimination be included in this if this template is to be used again.
31. As to the failure by the Tribunal to recite the relevant sections of the two statutes relating to training, this is not a criticism which has any substance, and in fairness Mr Hendy invited us not to make that criticism. It is plain that both sides agreed this was a training case and we can understand the Tribunal's approach to this matter.
32. We then turn to the statistics. We reject the ground on which this argument is put and it will not need to be re-considered by the Employment Tribunal for we accept in full the argument that the statistics were introduced at a stage where it was inappropriate. This may well be a matter of case management. Mr Coghlin argued that the case had not been put to the relevant witnesses and had not been opened to the Tribunal. Thus, it would be the more difficult for this matter to be overturned on appeal. In any event this point apparently goes nowhere for Mr Hendy was unable to contest the arithmetic in Mr Coghlin's submission that indicated that statistics relating to persons of the ethnicity of respectively the Claimant and Dr Darkwah did not indicate a bias towards African doctors or against Indian doctors. No submission was made to us as to where the statistics of general practitioners might go. Thus, we reject this submission.
33. Finally we consider the written argument adopted by Mr Hendy in relation to the allegation of intimidation. We propose that this matter be dealt with again by the Employment Tribunal for the Tribunal has not given clear reasons as to why, when it rejected the logic of Dr Lints, it should have upheld the Respondent's case that these allegations did not lead to the suggestion that the Claimant was the victim of at least unconscious discrimination.

Remission

34. As to the disposal of this case we have given careful consideration to the arguments of both sides particularly that the Employment Tribunal may have adopted what has really been a pre-determined position. Applying the factors in Sinclair Roche we consider it is proportionate for the same employment tribunal to repossess this case. It has devoted 5 days to it already. It cannot be said that it misdirected itself on the law, nor can it be said that the parties have lost confidence in it. We have after all a Claimant who has succeeded in proving a number of the initial stages in a discrimination case, that is less favourable treatment with an apt comparator and in turning the burden of proof over to the Respondent. which we hold he has done. We ourselves have not lost confidence in the professionalism of this Tribunal to be able to consider our judgment and to answer the points raised in argument by junior counsel at the hearing.
35. It will be open to it to reach a fresh decision. We would consider it would be unnecessary for it to hear any other evidence. Logically, since this is a reasons challenge, it would not be necessary for any further evidence. But both sides are agreed that if we were to take this step they should be allowed to make submissions. And we see no reason why that should not be as an oral hearing. We are not fearful that this Tribunal will seek to buttress its decision, for as has been put by sides, this is an experienced Tribunal which has made a decision which, at least to put it neutrally, the Respondent has not appealed, and is in the best position to consider the material it already has, and to satisfy the demands of the parties that it give reasons for findings on the Claimant's submissions.
36. We also have in mind the question of proportionality and costs and both of those point in favour of remission to the same Tribunal. No question at all arises as to bias or procedural impropriety and so the correct disposal of this case.
37. This case cries out for conciliation and now it is back in the Employment Tribunal, ACAS will have a role to play and we consider that Mr Hendy is correct when we raised this at the outset, that the issue of training medical practitioners is best left out of litigation, and in conciliation. The parties should consider this most carefully and we will direct that the parties report to the Employment Tribunal in 4 weeks time on steps which they have taken to conciliate with ACAS. We will send a copy of this Order to ACAS, so ACAS officers will be alerted to the possibility and steps will be taken to see if conciliation is to be forthcoming.
38. Meanwhile the parties will, so advised, submit written argument to the Employment Tribunal directed to the sole issue which is now outstanding. And an application will be made to the Tribunal for a one day hearing when this argument may be made and it will consider the points we have made.

Costs

39. An application has been made for costs of part of the Appeal relating to what is normally described as perversity. It is not clear to us which aspect of Rule 34 is relied upon but we must take it that it is based upon unreasonable conduct. The substance of the application is that this was put by Mr Hendy as a "no adequate reasons" appeal whereas it was originally put to include perversity. Work for a perversity appeal was more extensive and so is the documentation and the correspondence in agreeing for example the notes of the cross-examination. On behalf of the Claimant, Mr Hendy has contended that no additional work was done and that it was disingenuous to suggest that the work had been increased as a result of this perversity allegation. Essentially the same territory as covered as in a "no reasons" appeal. The same analysis of the documents and the same consideration of the evidence indicated that where evidence had been given and was the subject of a dispute it should have been the subject of the finding.
40. In our judgment this is not a case in which we should exercise our discretion to award costs. Frequently, perversity allegations are added to perfectly reasonable grounds of appeal and they do cause concern and additional work. And on occasion we will award costs where the case has become so one-sided as a result of all of the material which was used in respect of a perversity appeal which is not then run. This is not that case. In our judgment the case was properly put as one of inadequate reasons but it could also, covering the same territory, have been a perversity appeal. For, if all the evidence is going one way, and there is no finding on it, that is a perversity appeal.
41. The work done to agree witness evidence does not fall in the category limited only to the perversity allegations and it must be borne in mind that the Claimant has succeeded upon the major part of this case. It may well be that there are different appreciations about the amount of work put into this case.
42. We would very much like to thank both Counsel who have been succinct in their submissions and have enabled us to reach a Judgment quickly and having considered all the material relevant to this rather difficult factual case as recognised by Mrs Justice Cox at the sift stage.
43. The appeal is allowed.