United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR GHAZAN MAHMOOD (of Counsel) Instructed by: Messrs. Birchfields Solicitors 10 Knowsley Street Cheetham Hill Manchester M8 8GF
For the Respondents	MR JASON SEARLE (of Counsel) Instructed by: Messrs. Weightmans Solicitors 41 Spring Gardens Manchester M2 2BG

SUMMARY

Race Discrimination

ET misdirected itself by examining a history of alleged discrimination by reference to each separate incident, rather than examining the whole picture to see whether there was a prima facie case of discrimination on grounds of race.


 


HIS HONOUR JUDGE D SEROTA QC

1. This is a full hearing of an appeal from an Employment Tribunal of the two Decisions of an employment tribunal at Manchester (chaired by Mr J E Goodman). In the first decision registered on 19 August 2004 the employment tribunal dismissed the Claimant's case that he had been discriminated against on the grounds of race and dismissed his case that he had been subject to victimisation. In a second judgment registered on 11 January 2004, Dr Ghosh was ordered to pay £5,000 towards the costs of the hearing.
2. The Claimant sought a review which was rejected on 8 October 2004. The basis of the application for a review was that the Employment Tribunal had denied the consultant acting on behalf of the Claimant, Dr Simba, sufficient time to take instruction from a witness. It also regarded as misconceived a suggestion that in addition to Dr Simba the Claimant personally should have been permitted to cross examine the witness. We need not go through the procedural history in the Employment Appeal Tribunal. There seem to have been no less than seven orders made on various occasions. The result is however that HHJ Clark in March of this year sent both appeals for a full hearing.
3. Let me now say something very briefly about the unusual factual background to this matter. We need not go into it in any great detail but suffice it to say that the Claimant joined the Respondent in August 1990 and he worked as a psycho-sexual medical officer. It was only after he resigned or retired, we believe sometime in the year 2003, that he presented an Originating Application in which he asserted he had been the victim of discrimination on the grounds of race virtually from the time he began his employment. There is a complete dearth of complaint so far as one can tell during the course of his employment and he complained in particular of discriminatory conduct and harassment from sometime I think in November 1993 until August 2003 by the first Respondent, Ms S. Williams, a nurse manager, the precise dates matter not.
4. The details of the allegations are set out in the Decision of the Employment Tribunal and we need not go through them but suffice it to say he referred to a number of specific incidents and he maintained that he had been the victim of a continuing act of discrimination virtually throughout his employment. He did, as I have said, retire in May 2004 and during the course of his employment he had not made any complaints, save possibly in the year 2003 when some relatively minor matter was dealt with through the British Medical Association.
5. Now when the matter came before the Employment Tribunal the Claimant was represented by a consultant, Dr Simba. We do not know very much if anything as to Dr Simba's knowledge of the law. On the other hand the Respondent NHS Trust was represented by Counsel. We enquired of Mr Searle, who was present before the Employment Tribunal, as well as before us, whether in fact the Employment Tribunal's attention was drawn to the relevant authorities, of which there are now a number, as to the way in which an employment tribunal should approach allegations of discrimination particularly allegations of discrimination over a period of time in which one might find what appeared to be non-discriminatory detriments which when seen together or collectively might form a pattern. He told us that the Employment Tribunal's attention had not been drawn to such authorities.
6. May we say that we are all of the opinion that had the Employment Tribunal's attention been drawn to the relevant authorities briefly and, it being made clear to the Employment Tribunal the approach which they should have adopted, it is inconceivable that the Employment Tribunal would have dealt with the matter in the way it did. We say this with concern because we propose, for reasons I shall give shortly, to allow this appeal. We can only lament that at least four days, valuable days of the time of the Employment Tribunal have been taken up. It is likely that the re-hearing will take up just as many days and there is a significant cost not only to the resources of the Employment Tribunal service but also to public funds as represented by the Respondent NHS Trust, as well of course, as the cost to Dr Ghosh.
7. Now the way in which this matter should have been approached by the Employment Tribunal is set out in a number of authorities. It is quite clear from those authorities that it is the obligation of the Employment Tribunal to consider the evidence as a whole. It is only when it has considered the evidence as a whole that it should go on to consider the individual incidents and whether, either viewed collectively or individually, the facts founds by the Employment Tribunal give rise to a prime facie case, after which the burden of proving that the acts complained of were not discriminatory will lie upon the employer.
8. We draw attention to what was said by the Employment Appeal Tribunal presided over by Holland J, in the case of Driskel v Pensinsular Business Services Ltd [2000] IRLR 151:

"12. In the course of argument we were additionally and helpfully referred to two decisions of this tribunal specific to sexual discrimination. Insitu Cleaning Co Ltd v Heads [1995] IRLR 4 and Reed and Bull Information Systems v Stedman, op cit. On the basis of the foregoing the tribunal's approach should be as follows:

(a) The tribunal hears the evidence and finds the facts. As has already been pointed out, it is desirable not to include in this exercise judgments as to the discriminatory significance, if any, of individual incidents - judgment thus far should be limited to the finding of all facts that are prima facie relevant. If ad hoc assessments 'discrimination or no' are made the result is a fragmented and discursive judgment; more importantly, there is the potential noted in Reed and Bull for ignoring the impact of totality of successive incidents, individually trivial.

(b) The tribunal then makes a judgment as to whether the facts as found disclose apparent treatment of the female applicant by the respondents as employers in one or more of the respects identified in s.6(2)(a) and (b) that was less favourable than their treatment, actual or potential, of a male employee.

(c) The tribunal further considers any explanation put forward on behalf of the respondent employers. In the light of any such explanation is the discrimination so far potentially identified real or illusory?

(d) In making judgments under (b) and (c) above (and in practice these two stages may elide together) the following guidance is applicable:"

9. There are of course other authorities which stress the importance of looking at all of the facts. It is also important to have regard to the guidance which is now given in the decision of Igen v Wong which has varied in a relatively modest way the guidance given by the Employment Appeal Tribunal in the decision of Barton v Ivestec. The relevant passages in Igen v Wong [2005] EWCA Civ 142 are as follows:

"17

The statutory amendments clearly require the ET to go through a two-stage process if the complaint of the complainant is to be upheld. The first stage requires the complainant to prove facts from which the ET could, apart from the section, conclude in the absence of an adequate explanation that the respondent has committed, or is to be treated as having committed, the unlawful act of discrimination against the complainant. The second stage, which only comes into effect if the complainant has proved those facts, requires the respondent to prove that he did not commit or is not to be treated as having committed the unlawful act, if the complaint is not to be upheld.

18

There was some debate before us as to whether the statutory amendments merely codified the pre-existing law or whether it had made a substantive change to the law. Miss Elizabeth Slade QC (appearing in Wong v Igen Ltd for the employer), in initially arguing for the former, relied on the comment by Simon Brown U in Nelson v Carillion Services Ltd [2003] IRLR 428 at paragraph 26:

'It seems to me tolerably clear that the effect of s.63A [of the SDA] was to codify rather than alter the pre-existing position established by the case law'.

That comment was made obiter in a case relating to alleged indirect discrimination. We think it clear, as Mr Allen submitted and as Miss Slade accepted, that the amendments did not codify, but altered, the pre-existing position established by the case law relating to direct discrimination. It is plain from the Burden of Proof Directive that Member States were required to take measures to ensure that once the complainant established facts from which it might be presumed that there had been discrimination, the burden of proof shifted to the respondent to prove no breach of the principle of equal treatment. Looking at Neill LJ's guidelines in King (set out in paragraph 6 above), it is plain that paras. (1), (4) and (5) need alteration. It is for the applicant complaining of discrimination only to make out his or her case to satisfy the first stage requirements. If the second stage is reached, and the respondent's explanation is inadequate, it will be not merely legitimate but also necessary for the ET to conclude that the complaint should be upheld. The statutory amendments shift the evidential burden of proof to the respondent if the complainant proves what he or she is required to prove at the first stage.

21

Mr Antony White QC, appearing for the employee in Wong, takes issue with Miss Slade on this point. He submits, and is supported by Mr Allen in that submission that in considering what inferences or conclusions can be drawn from the primary facts, the ET must assume that there is no adequate explanation for those facts. Mr White accepts that that does not prevent the ET from taking into account at the first stage the fact that the respondent has given an inadequate explanation, but he argues that that is in no way inconsistent with the assumption which the words 'in the absence of an adequate explanation' require to be made.

22

We agree with Mr White. The words 'in the absence of an adequate explanation', followed by 'could', indicate that the ET is required to make an assumption at the first stage which may be contrary to reality, the plain purpose being to shift the burden of proof at the second stage so that unless the respondent provides an adequate explanation, the complainant will succeed. It would be inconsistent with that assumption to take account of an adequate explanation by the respondent at the first stage. We think that Miss Slade seeks to extract more significance from the words used by Burton J in Wolff than they can reasonably have. It is of course possible that the facts found relevant to the first stage may also relate to the explanation of the respondent.

23

We accept Mr White's suggestion that in view of our conclusion it may be helpful for the Barton guidance to include a paragraph stating that the ET must assume no adequate explanation at the first stage. That suggestion was supported by Mr Allen."

10. In the present case the Employment Tribunal reminded itself of sections 2 and 4 of the Race Relations Act and also to section 54(A)(2) of the Act which provided for the reversal of the burden of proof when a prima facie case had been made out. The Employment Tribunal did not have regard, or did not say that it had regard to its obligation to consider matters overall. What the Employment Tribunal then went on to do was to take each and every factual allegation made by Dr Ghosh, and it dealt with each of them, seemingly in isolation and dismissed all of them. In each case it asked itself whether or not an explanation was called for because a prima facie case had been made out and in three specific cases it felt that an answer was called for and it was satisfied with the answer.
11. What it did not do, or at least it never said that it did, was to look at the overall effect of the facts that it had found. Now, it may be that that is what the Employment Tribunal did in fact do but that is not apparent from its judgment and indeed there are indications in its judgment that it simply did not do that. Mr Searle sought to rely upon paragraph 40 of the Decision of the Employment Tribunal showing that the Employment Tribunal did take the overall approach. We regret to say that we cannot read paragraph 40 in that way. If anything paragraph 40 of the decision of the Employment Tribunal suggests that it had taken the fragmented approach which the Decision of Driskel said should not be taken.
12. Now let it be said at once that the Employment Tribunal had ample material before it upon which it could have concluded that the case of Dr Ghosh was misconceived. There was ample material before it to enable it to have rejected both in the round and individually all of the allegations that he made. Regrettably, however, that is not the way as it seems to us that the Employment Tribunal dealt with the matter and, with great reluctance, we have concluded that the appeal must be allowed and that it is necessary for the matter to be remitted for a re-hearing.
13. There are one or two suggestions that the Employment Tribunal, at least to some extent may have looked at the matter in the round. For example in three paragraphs, paragraph 21, 22 and 33, it is clear that their conclusions are based on having considered overall that they preferred the credibility of Ms Williams to the Claimant. Paragraph 39 might also be a straw in the wind but we do not consider however that the Employment Tribunal has demonstrated that it correctly directed itself and applied itself to the facts in the way it was required to do so.
14. We do not in the circumstances consider it necessary to refer to the other submissions made by Mr Mahmood - save that we would say this - Mr Mahmood has criticized the Employment Tribunal for rejecting allegations and finding that no prima-facie case is made out. Because, although there was reference to one in the Claimant's Witness Statement they were not the subject of any cross examination, and on a number of occasions the Employment Tribunal held that where the witness alleged to have been guilty of discriminatory conduct had not been cross examined, on the basis that he or she had been guilty of discriminatory conduct, the Employment Tribunal held that there was no prima facie case. Mr Mahmood submitted that the Employment Tribunal was nevertheless required to look at the facts and ask whether the facts produced the appropriate prima facie case which an explanation need be sought. Without determining the matter we feel bound to say that an Employment Tribunal must be justified in appropriate circumstances in rejecting a factual allegation of discriminatory conduct, on the part of a named individual when that named individual has been called to give evidence and cross examined and, these specific allegations are not put to him, the Employment Tribunal is justified in those circumstances in assuming that no case is being made out. We need say no more about it than that.
15. We considered very carefully what we should do. We have considered whether in fact it is appropriate for us to remit this matter for hearing by the same tribunal or whether the matter should go back to a different tribunal. We are extremely conscious, as we have already said, of the cost to the parties and also the cost in resources of the Employment Tribunal service. Nonetheless, albeit, for reasons of proportionality and saving of cost, we would have liked to send the matter back for further consideration by the same tribunal, it seems to us that it would not be fair to do so on the facts of this case.
16. This is a case in which the Employment Tribunal has made a finding in the costs application that Dr Ghosh's application was misconceived and was also critical of Dr Ghosh for having failed to substantiate any of his allegations. It seems to us that an informed and fair bystander may well feel that if the matter were sent back to the same tribunal it would not be able to deal with the matter with a wholly fresh and impartial mind.
17. We also consider that the mistake in approach of the Employment Tribunal is so fundamental that it also would not be appropriate for the matter to be sent back. In the circumstances therefore this matter must be remitted to be heard by a fresh tribunal. The Employment Tribunal will doubtless give directions. It seems to us that it is most important in this case that directions are given to isolate clearly the allegations that are being made and we have no doubt the Employment Tribunal will give appropriate direction.
18. We would say this before we conclude. The Claimant needs to be realistic as to his chances of success at any re-hearing and the Respondent needs to be realistic at the cost to it in terms of resources and legal costs. It is for that reason that we mention to the parties the free mediation service which is offered by ACAS in the Employment Tribunal and, we strongly recommend to the parties that they should seek to take advantage of the facilities offered by ACAS, to see whether it is possible for them to compromise their differences without the need for a further hearing which is likely to last some four days or more.
19. It only remains for us to thank Mr Mahmood and Mr Searle for their assistance. It must follow from what we have said that the Appeal in relation to costs must be allowed. We say no more about that.