United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR RICHARD LEIPER (of Counsel) Instructed by: The Bar Pro Bono Unit
For the Respondent	MR CHRISTOPHER TAFT (of Counsel) Instructed by: Manchester City Council Legal Services City Solicitor's Division Town Hall PO Box 532 MANCHESTER M60 2LA

SUMMARY

The claimant alleged race and victimisation discrimination. The Tribunal dismissed both claims. They found that the burden of proof did not shift in relation to the first claim, and that whilst it did with respect to the victimisation claim, there was a non-discriminatory explanation. The principal ground of appeal with relation to the race claim was that the Tribunal had misinterpreted the guidance given by the Court of Appeal in Igen v Wong [2005] ICR 931 and had taken into account factors at the first stage which ought properly only to have been considered at the second stage. The challenge to the finding of no victimisation was based, inter alia, on alleged failures by the Tribunal to analyse certain evidence satisfactorily. The EAT dismissed the appeals and held that the Tribunal had approached the issues properly. Observations made on the application of the burden of proof provisions as interpreted in the Igen case.


 


THE HONOURABLE MR JUSTICE ELIAS

1. This is an appeal against the unanimous decision of the Employment Tribunal which, following a six-day sitting in March and July of last year, concluded that the Appellant's claims of race and victimisation discrimination failed.
2. The alleged act of racial discrimination was bullying, and the victimisation discrimination related to the dismissal of the Appellant, which he alleged was the result of his raising with his employers his complaint of racial discrimination. The case raises the proper approach to the burden of proof provision found in section 54A of the Race Relations Act as interpreted in Igen Ltd v Wong [2001] ICR 931.

The background

3. The First Respondent, the City of Manchester Council, maintains a number of local housing offices, which provide support services for the local community. Typically, they handle applications for housing, requests for repairs, and resolve neighbourhood disputes, or at least seek to do so.
4. The Appellant held various agency posts at a number of housing offices for different Councils.
5. He commenced work for the Council at the Monsall Street Housing Office, which is the place where the alleged incidents in dispute arose, on Monday 5 April 2004. He was employed as a Community Support Officer. He was engaged through an Agency called Capita. He was not considered to be an employee of the First Respondent.
6. At the Monsall Street Office he worked with a number of other employees. The principal Local Services Officer was Steve Finnegan, the second Respondent to this appeal. Beneath him was the Local Services Manager, Tracey Cullen, and beneath her, the Deputy Services Manager, Helen Taylor. They are all white, and the Appellant is black and of West-Indian origin.
7. Apart from the Appellant, there were two other Community Support Officers, Lloyd Bogle and Michael Tetteh-Lartey. They were also both black.
8. Helen Taylor was the Claimant's first Line Supervisor. She had worked as the Deputy Local Services Manager from the 17 November 2003, but she had little managerial experience or training. The Tribunal noted that she was ill-equipped to handle any confrontation with employees.
9. The Appellant was responsible for a particular area, known as his "patch", within the Monsall Street area. When he commenced employment there were, as might be expected, certain ongoing matters with which he had to deal. He did not at that stage raise any concerns about pressure of work. Initially, the work went well. He received praise for the work that he did in a particular housing estate to resolve anti-social behaviour problems, and there were no complaints regarding his performance.
10. After about five weeks, however, it was noted that the Appellant's performance was deteriorating. He was not responding timeously to emails, and he was finding difficulty in keeping up to date with letting empty properties. He wrongly accepted a tenant for a particular property which was reserved for the over 60s, and that tenant had to be removed.
11. Helen Taylor noted that he was getting into minor, but regular, disputes with other members of staff and with one of the Housing assistants, a Michelle Edmonds, in particular. Other officers found certain difficulties with the Appellant. He would request, for example, advice on procedures but then argue with them about their answers.
12. Helen Taylor concluded that he might be under stress. She knew he was studying for a legal practice course. Indeed his working hours were arranged to enable him to have Wednesday afternoons off to attend classes connected with that course.
13. On the 18 June 2004 Helen Taylor called Karen McArthur, who was the Capita officer involved in arranging the placement of the Appellant. She told Ms McArthur that the Appellant's performance was satisfactory and that he would remain until at least September. She said that the Appellant's performance was not as high as she would have expected of a permanent employee, but the Council's expectations of an agency worker were lower. Moreover, it was recognised that the situation for the Council could be worse if a fresh, but inexperienced, replacement agency worker were to be provided.
14. There was a meeting between Karen McArthur and Helen Taylor. The Tribunal noted this was for two reasons. First, because the Claimant had received two pay rises, which were being resourced by Capita, and he was now seeking a third pay rise, and the funding of that needed to be discussed. Second, in any event, Ms McArthur wanted to review the service provided by Capital generally to the Council.
15. That meeting took place on the 21 June. Helen Taylor indicated that the service it was receiving from Capita was acceptable, but that the Council would not fund a further pay increase to the Appellant.
16. The following day the Appellant contacted Capita to complain about his being required to have a photograph taken. Helen Taylor verified that this indeed was required, but that a proper consideration would be given to any reasonable argument why it was inappropriate to do this. The Appellant simply asserted his right to privacy. Helen Taylor notified Ms McArthur that it was a Council requirement, and that if the matter could not be resolved, then the particular Agency arrangement would have to be terminated. The agency contract under which the Appellant was provided envisaged a week's notice.
17. On the 25 June 2004 there was a heated argument between the Claimant and Ms Edmonds. The Appellant had asked Ms Edmonds to input a routine repair job onto the computer. Helen Taylor told the Appellant that he should do it, but he said he did not have the relevant computer access codes so she sent them to him. Later he raised with Helen Taylor the question whether it was appropriate for him to ask a Housing assistant to raise repair jobs. She told him that he ought to be doing this himself. This was the practice, as one of the other Community Service Officers, Michael Tetteh-Lartey, confirmed to the Tribunal, but the Appellant remained unhappy with it and he objected loudly at having to do so in the presence of other staff. As a result, Helen Taylor was concerned about his attitude and asked to see him later that day to discuss his work and his attitude.
18. This resulted in a meeting in the afternoon of the 25 June. It was what the Tribunal describe as "a difficult interchange". He was told that his attitude should change, that he should comply with deadlines, and cease being so confrontational with other members of staff. He remained unhappy, and he emailed Tracey Cullen.
19. Helen Taylor also sent an email to Tracey. She set out what she had told the Appellant at that meeting, and commented that she had warned him that if he could not agree to the conditions that she had stipulated then she would bring the arrangement to an end. These conditions included that he should stop being confrontational, and arguing back in front of staff; that he should follow direct instructions; and that he should respond to emails promptly. She noted she had given him until 4.00 p.m. that afternoon to decide whether he was willing to comply with those conditions.
20. She also sent an email to the Appellant, in which she upbraided him for arguing with her about instructions even after he had been asked several times not to do this, and she repeated that unless he complied with the conditions we have outlined, then the Agency arrangement for the provision of his services would be terminated.
21. The Appellant himself sent three emails to Helen Taylor during the course of that day. The first was, in fact, prior to Helen Taylor sending her email to him.
22. The Tribunal set out these emails in the body of their Decision. Essentially, in the first he alleged that he was not being confrontational and that he felt that Helen Taylor was showing no respect for him, and that he had been hurt by her attitude. In the second email he said that he felt he was being targeted and treated differently from other staff, which was making working conditions difficult.
23. Helen Taylor then emailed Karen McArthur, with a copy to Tracey Cullen, in which she indicated that she and Tracey considered that the Appellant was being confrontational, although they could not, for confidentiality reasons, disclose in detail who had raised issues with them about this. They felt he did not fully understand why they were concerned about the matter. However, this email terminated on a relatively positive note, saying that they had agreed not to terminate the contract at that time but to "start afresh on Monday with a positive attitude to teamwork, etc.".
24. Karen McArthur responded and indicated that she would ask the Appellant to see her on Monday after work.
25. After the emails had been sent, there was a meeting between Helen Taylor and Tracey Cullen and the Appellant, who was again asked to provide a photograph. This is displayed on the Office Notice Board in the Reception area and is something that is requested of all staff. It is part of the Council's policy on public accountability.
26. The Appellant was apparently contesting at the Tribunal that this board with photographs attached did not exist. The Tribunal rejected that. All staff who gave evidence confirmed that it did, and all had photographs displayed on the board.
27. On the 29 June Karen McArthur emailed Helen Taylor following her meeting with the Appellant. She indicated that she had had a discussion with the Appellant and hoped that he might deal with his frustrations differently in the future, but she recognised that this may not work and she commented that she had two suitable candidates who would become available over the coming few weeks if matters did not turn out as well as she hoped.
28. There was a reply to this email from Helen Taylor, stating that she thought that the Appellant did not realise that his reactions were inappropriate and that he was being defensive, but they would "see how things pan out".
29. Matters did, however, improve, and on the 5 July Helen Taylor assured Karen McArthur that the Appellant "seems to be okay at the moment", but the Appellant remained unhappy with his situation, and he told Karen McArthur so on the 8 July.
30. Problems about the photograph continued, the Appellant refusing to allow his photograph to be displayed. There was a meeting on the 21 July, where he confirmed again that he would not allow his photograph to be taken, on grounds of privacy. He was told that this would be treated as refusing a reasonable Management request and could give rise to terminating his placement. He asked to have the opportunity to consider the matter overnight and that was granted to him.
31. The following day he sent a lengthy email, in which he set out complaints of race discrimination against Helen Taylor. He disputed that it was a reasonable Management instruction to have his photograph taken and contended that his refusal was a point of principle. He accused Helen Taylor of having problems with black staff only, and that she was not complying with the Council's Dignity at Work Policy. He did not send a copy of this to Steve Finnegan, as procedurally he ought to have done. He justified this by saying that Mr Finnegan was on leave at the time but that, in fact, was incorrect. He sent the email instead to Finnegan's superior, Mr Stephens, and the Tribunal concluded that there was no proper reason to do that.
32. This complaint of race discrimination was the second raised at Monsall Street, so Mr Finnegan arranged for a totally independent Manager, rather than himself, to conduct an investigation. This was Susan Taylor, the Local Services Manager, at the Varley Housing Street Office.
33. She conducted an immediate investigation. She interviewed many members of staff at Monsall Street, and the Tribunal saw the notes of these interviews.
34. The Tribunal noted that whilst a number of these statements indicated shortcomings in Helen Taylor's management style, there was no evidence of disparate or unequal treatment.
35. Susan Taylor characterised the Appellant as being un-cooperative, and stated that he did not elaborate on his complaint sufficiently to assist the investigation. In that context, it is pertinent to note that the Employment Tribunal also found that he was at times inconsistent and obscure, could be confrontational and intemperate, and was unwilling to accept the simplest of factual submissions made to him. He was unable to accept that he had made incorrect statements. Similarly, Karen McArthur, whom the Tribunal in terms stated had impressed them as an efficient and honest witness, told the Tribunal that the Appellant was difficult and that he could be abrupt and rude.
36. When Susan Taylor interviewed the Appellant and the staff at Monsall Street she was accompanied by Mr Finnegan. No complaint was directed towards his presence, although the Tribunal was alert to the possibility that this might affect the independence of the interviews. They were satisfied, however, having considered that matter, that it did not. They were satisfied also that although Susan Taylor spoke about the matter with both Mr Finnegan and Tracey Cullen, she had reached her own entirely independent conclusions, without any influence from these persons.
37. Her conclusion, in brief, was that although Helen Taylor had been guilty of inappropriate behaviour, there had been no bullying or harassment of any kind.
38. Immediately after Susan Taylor had notified the Appellant about the outcome of that investigation, Mr Finnegan took over the meeting and terminated the appointment. He gave three reasons for this: first, because there had been a refusal to obey a Management order relating to the photograph; second, he was concerned about the Appellant's attitude, and his ability to continue to work as part of a team; and third, because the relationship between the Appellant and Helen Taylor had broken down.
39. He described the Appellant in that context as "dangerous" in the sense that his presence would be disruptive within the office. He also told the Tribunal that he was very conscious of the potential for a race discrimination claim resulting from his decision to terminate the appointment on that day. He admitted that he had been irritated by the Appellant's failure to notify him of the race discrimination complaint, and he was suspicious of the motives of the Appellant, his having raised the race issue on the very day when he was required to give a response as to whether or not he would have his photograph taken. Mr Finnegan also confirmed that he would have terminated the appointment for refusing to supply the photograph alone.
40. It was decided that in the circumstances he should leave the premises immediately. The Appellant was escorted from the premises.
41. The Appellant complained about the manner of this, and the fact that he was not able to obtain information from his computer before being compelled to leave, but the Tribunal rejected both these allegations. They held that the actions of Mr Finnegan were justified and that he conducted himself in a mild and appropriate manner throughout.
42. There was then a further complaint lodged against Mr Finnegan, that he had acted in a racially-discriminatory manner and that he had victimised the Appellant. It was said he had humiliated and belittled him, when escorting him from the premises. That complaint was rejected by the Respondents. Further attempts were made to re-open the matter by the Appellant but they were rejected by the Council.
43. As a result of the investigation, Helen Taylor was given further in-house management training.

Tribunal's conclusions

44. The Tribunal summarised its factual findings in the following terms:

"35. Having considered all the evidence and having assessed the parties and witnesses, the Tribunal concludes that the claimant was a very difficult employee. He was confrontational and argumentative. He was capable of being rude at times. He did not take kindly to being directed by management. His work was clearly of an adequate standard and he was capable of doing good work as was shown by his early results.

36. Helen Taylor was in many respects an inadequate manager, primarily due to her lack of experience, ability and training. She would become frustrated with the claimant's attitude and the way in which he would confront and argue with her. She had not developed any proper response to those circumstances and would resort to raising her voice towards the claimant. However it is abundantly clear from the evidence taken by Susan Taylor, which has been corroborated by the witnesses before the Tribunal, that Helen Taylor's attitude was not limited to the claimant nor indeed limited to black employees. Her lack of management skills was demonstrated to all members of staff over whom she had authority. Whatever the failings of Helen Taylor in terms of management abilities, the Tribunal finds that they were not based in any way upon any racial discrimination against the claimant or any other member of staff.

37. The actions of the second respondent have been given very careful consideration. The Tribunal concludes that he did not influence the investigation and findings of Susan Taylor in any way. The second respondent's decision to terminate the claimant's appointment was taken immediately after the conclusion of the investigation into his complaint and the Tribunal acknowledges that this is prima facie evidence of victimisation against the claimant. The Tribunal has heard the reasons provided by the second respondent and, in the circumstances of this case, conclude that he is right in thinking that the claimant would have continued to have been an argumentative, confrontational and generally disruptive member of staff whose relationship with co-workers had broken down to the extent that he could never be reintegrated into the staff at Monsall Street. Despite his self acknowledged annoyance with the claimant's conduct, the Tribunal is satisfied that the decision of the second respondent was objective and without any personal or racial bias. Accordingly we find that the second respondent had a proper and independent reason to terminate the claimant's appointment that was not in any way based on discrimination against the claimant or any other member of staff."

The Tribunal then set out the material statutory provisions and directed itself according to the well known case of Igen v Wong [2005] ICR 931. This sets out the two stage approach, the onus being on the claimant to establish facts from which a finding of discrimination could be inferred, and if that is done the burden shifting to the employer to provide a non-discriminatory explanation.

45. The Tribunal then stated in terms that :

"40.…the Claimant has not proved, on the balance of probabilities, facts from which the Tribunal could conclude that he had been subjected to racially motivated bullying or harassment in the workplace. The claimant's case in this respect is directed towards the conduct of Helen Taylor. There is no doubt that Helen Taylor did not act appropriately in her supervisory role towards the claimant. However, it is clear that this was not a result of any bias against the claimant or black employees in general. Helen Taylor had at the material time poor management skills and as a result, she acted inappropriately towards any employee who she considered was not obeying her or satisfying her requirements of them".

They concluded further that even if the conduct could properly be characterised as bullying, the Tribunal were satisfied that it was not on grounds of race or ethnic or national origin.

46. As to the allegation of victimisation discrimination, the Tribunal were satisfied that the Claimant had proved facts from which a Tribunal could conclude, in the absence of an adequate explanation, that the First and Second Respondents had victimised the Claimant. The timing of the dismissal, so closely after the complaint had been investigated, raised a prima facie case that required an explanation, but the Tribunal found that a satisfactory explanation had been provided. They accepted that Mr Finnegan was an honest witness. They noted that they had examined all aspects of the evidence to establish if it could be said he had acted for a discriminatory reason. They were satisfied that he had not. The reasons for the termination were the failure to obey a reasonable Management order, and the fact that the Appellant's relationship with the staff in general, and Helen Taylor in particular, made it impossible to reintegrate him into the Monsall Street workforce. So they were satisfied that the burden of proof had been discharged.

The Grounds of Appeal

47. There are appeals directed at both the race discrimination and victimisation finding. We shall consider them separately.

The race discrimination claim.

48. The first and most fundamental ground alleges that the Tribunal did not properly apply the burden of proof when assessing whether or not there had been racial discrimination by Helen Taylor. Specifically, it is said that the last sentence of paragraph 36, which we set out above, was reached only after having considered the explanation for her treatment, and that it is illegitimate to have regard to that at the first stage. The fact that Ms Taylor dealt with everyone, black and white, in the same unreasonable way was part of the explanation for her treatment and should have been considered only at the second stage.
49. This argument involves consideration of the evidence which a Tribunal is permitted to consider when the two stages adumbrated in Igen are under consideration.

The relevant law

50. Section 54A of the Race Discrimination Act is as follows:

This section applies where a complaint is presented under section 54 and the complaint is that the respondent –

(a)has committed an act of discrimination, on grounds of race or ethnic or national origins, which is unlawful by virtue of any provision referred to in section 1(1B)(a), (e) or (f), or Part IV in its application to those provisions, or

(b)has committed an act of harassment.

(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, or

(b) is by virtue of section 32 or 33 to be treated as having

committed such an act of discrimination or harassment

against the complainant,

the Tribunal shall uphold the complaint unless the respondent provides that he did not commit or, as the case may be, is not to be treated as having committed, that act.

Similar provisions are found in other discrimination legislation. The section is giving effect to the Burden of Proof directive (Council Directive 97/80/EC.)

51. We note in particular three features of this section. First, the onus is on the complainant to prove facts from which a finding of discrimination, absent an explanation, could be found. Second, by contrast, once the complainant lays that factual foundation, the burden shifts to the employer to give an explanation. The latter suggests that the employer must seek to rebut the inference of discrimination by showing why he has acted as he has. That explanation must be adequate, which as the courts have frequently had cause to say does not mean that it should be reasonable or sensible but simply that it must be sufficient to satisfy the Tribunal that the reason had nothing to do with race: see Glasgow City Council v Zafar [1998] ICR 120 (H.L) and Bahl v The Law Society [2004] IRLR 799 (C.A.)
52. The proper construction of the burden of proof provision was considered by the Court of Appeal in the Igen case. Peter Gibson LJ handed down the judgment of the Court. At paragraph 17 he said this:

" 17. The statutory amendments clearly require the employment tribunal 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."

53. He then pointed out that the amendment did more than codify the existing law, as laid down in King v Great Britain-China Centre [1992] ICR 516 because whereas that case held that a Tribunal was entitled to infer discrimination where a prima facie case was made and no adequate explanation was given, the effect of the statute is to oblige Tribunals to infer discrimination in such circumstances.
54. His Lordship then considered whether the employer's explanation could be taken into account when considering whether the prima facie case had been established, and concluded that it could not. It is pertinent to note that the court approved the submission of counsel for the employees that "in considering what inferences or conclusions can be drawn from the primary facts, the employment tribunal must assume that there is no adequate explanation for those facts." As the Court recognised, this is an artificial exercise, but one dictated by the statutory language.
55. Then at para. 24 Peter Gibson LJ said this:

"the language points to the complainant having to prove facts and there is no mention of evidence from the respondent. However, it would be unreal if the employment Tribunal could not take account of evidence from the respondent if such evidence assisted the employment Tribunal to conclude that in the absence of an adequate explanation unlawful discrimination by the respondent on a proscribed ground would have been established."

In an annex the Court summarised in thirteen paragraphs certain guidance to assist Tribunals in approaching this issue. Paragraphs 1 to 5 were as follows:

(1) Pursuant to section 63A of the 1975 Act, it is for the claimant 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 respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part II or which by virtue of s.41 or s.42 of the 1975 Act is to be treated as having been committed against the claimant. These are referred to below as "such facts".

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

(3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that "he or she would not have fitted in".

(4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the Tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal.

(5) It is important to note the word "could" in s.63A(2). At this stage the Tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a Tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them."

The two stage test

56. The argument of Mr Leiper, Counsel for the Appellant, is this. He says that when considering whether a prima facie case is made out, the only material which the Tribunal can consider is the evidence adduced by the complainant together with any evidence adduced by the respondent which assists the Tribunal in reaching the conclusion that it has been made out. It must consider no other evidence. He relies on the fact in particular that paragraph 17 (and indeed the statute itself) refers to the complainant establishing facts, and also on the observations of Peter Gibson LJ in para 24 of Igen to which we have referred. He submits that by focusing on the fact that evidence from the employer may be material to establishing a prima facie case, the obvious and inevitable inference from that paragraph is that evidence adduced by the employer pointing the other way, that is, tending to undermine the complainant's case, cannot be considered at that first stage.
57. In this case he rightly points out that the key factor which caused the Tribunal to find that there was no prima facie case was evidence adduced by the employer that Ms Helen Taylor indiscriminately treated all subordinates in an abrupt fashion. That, he says, was part of the explanation, and ought to have been ignored at the first stage. It was not part of the evidence adduced by the employee, nor evidence adduced by the employer but assisting his case, and therefore it was irrelevant to whether or not there was a prima facie case.
58. Mr Taft, Counsel for the Respondents, says that the Tribunal should have regard to all facts at the first stage to see what proper inferences can be drawn, and the treatment of others by Ms Taylor was plainly a highly material fact.

59. We agree with the Respondents, for a number of reasons. First, we think that their argument is strongly supported by paragraphs 4 and 5 of the annex, which we have set out. These paragraphs focus on all the primary facts before the Tribunal. In our view the reference to "the claimant proving facts" in Section 54A(2) does not mean that it is only the facts adduced by him (plus supporting facts adduced by the Respondent) that can be considered; it is merely indicating that at that stage the burden rests on the claimant to satisfy the Tribunal, after a consideration of all the facts, that a prima facie case exists sufficient to require an explanation.

59. Second, the obligation for the employer to provide an explanation once the prima facie case has been established, strongly suggests that he is expected to provide a reason for the treatment. An explanation is just that; the employer must explain. Why has he done what could be considered to be a racially discriminatory act? It is not the language one would expect to describe facts that he may adduced to counter or put into context the evidence adduced by the claimant.
60. To take an example discussed in the course of argument. Assume that an employer

withholds pay from a group of workers, one of whom is black, for working to rule but they do not do this to similarly placed workers not working to rule. On Mr Leiper's analysis the black worker could allege that he had money withheld because he was black, and no doubt he could point to white colleagues (not working to rule) who were being treated differently. Taking his evidence in isolation, the Tribunal would have to conclude that he had been treated differently and to his detriment in circumstances which could point to race. Accordingly, at that stage- unless he accepted in cross examination that other white workers had been similarly treated- the onus would switch to the employer.

62. The case could of course be rebutted by the employer adducing in evidence the fact that many white workers had been treated the same way. But that evidence could not, in our view, properly be described as an explanation for the treatment. Rather it is merely factual evidence presenting a fuller picture of the material facts and putting the facts adduced by the employee in context, and thereby demonstrating that there is nothing about the circumstances to justify an inference of race discrimination, whatever the reason for withholding the money may be. The explanation for the treatment, if that were to become material, would be that the money was withheld because the worker was working to rule.

63. Third, Mr Leiper's approach would be requiring tribunals to adopt mental gymnastics. They will of course have heard all the evidence; they are then being asked to differentiate between the evidential source of different facts and artificially to pretend at stage one that they are not aware of those adduced by the employer. To leave out of account the explanation, as they are required to do, is itself artificial, although the distinction between fact and explanation is at least usually tolerably clear. But this approach would significantly and artificially complicate the fundamentally simple question of asking why the employer acted as he did.

61. Mr Leiper's analysis becomes even more artificial, and requires an even more gross distortion of language, if the employee is falsely alleging that he has suffered treatment which is discriminatory, for example wrongly contending that he was the subject of abusive racist comments. The Tribunal, having heard all the evidence, might be wholly convinced that the treatment relied upon simply did not occur. It is absurd to say that the employer is providing an explanation for the treatment when it did not even take place; he is simply adducing facts to dispute the evidence of the employee. It is plainly unjust to place the onus on the employer to show that the comments were not made and to prove that the employee is lying. It is for the employee to prove that he suffered the treatment, not merely to assert it, and this must be done to the satisfaction of the Tribunal after all the evidence has been considered. Matters of credibility in particular can only be assessed in the light of all the evidence, and it cannot be right to require the employer to prove- let alone, in the language of the section, to "explain" - that the employee is lying.
62. In our view, if one considers the burden of proof provision in the context of what a claimant needs to establish in a discrimination claim, what it envisages is that the onus lies on the employee to show potentially less favourable treatment from which an inference of discrimination could properly be drawn. Typically this will involve identifying an actual comparator treated differently or, in the absence of such a comparator a hypothetical one who would have been treated more favourably. That involves a consideration of all material facts (as opposed to any explanation).
63. It is only if the claimant succeeds in establishing that less favourable treatment that the onus switches to the employer to show an adequate, in the sense of non-discriminatory, reason for the difference in treatment. That requires a consideration of the subjective reasons which caused the employer to act as he did: see Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 per Lord Nicolls at para. 7.

67. In general - but obviously not in all cases - evidence that the employer has treated other blacks in the same way as the alleged comparator will be an example of factual matters which will be likely to displace any inference of discrimination. That evidence is likely to come from the employers. If Mr Leiper were right, that evidence would be material in determining whether there was a prima facie case if it was given in evidence by the employee but not if it were given by the employer. This would be so even if the employee deliberately concealed this fact or, indeed, falsely denied it.

64. That is not to say that fact and explanation are hermetically sealed compartments. There is plainly a relationship between them. Facts will frequently explain, at least in part, why someone has acted as they have. The fact that an employee has committed misconduct will provide the reason why the employer disciplines him. So facts are not unrelated to the explanation, although they are not to be confused with it.
65. There is a further argument advanced by Mr Leiper in support of his construction of section 54A. He relied upon some observations of mine in Network Rail Infrastructure v Griffiths-Henry UKEAT/0642/05 at para. 20 to the effect that the stronger the prima facie case the more that might be expected by way of explanation to discharge the burden imposed on the employer. He submits that if that is so then a Tribunal will need to decide on the strength of the prima facie case before determining whether the explanation rebuts the inference of discrimination.
66. This argument does not assist him in relation to what facts are relevant at the first stage. At most it lends support to the contention that it is always necessary for the tribunal to make the two stage analysis. For reasons we set out below, we do not think that a tribunal does necessarily fall into error merely because it fails to adopt the two stage approach. Moreover, the impact of the prima facie case on the explanation is likely to be material only where there is a strong prima facie case, and in such circumstances it will not in practice be difficult for the Tribunal to make a finding at the first stage.

Discussion.

67. We would add this. There still seems to be much confusion created by the decision in Igen v Wong. What must be borne in mind by a Tribunal faced with a race claim is that ultimately the issue is whether or not the Employer has committed an act of race discrimination. The shifting in the burden of proof simply recognises the fact that there are problems of proof facing an employee which it would be very difficult to overcome if the employee had at all stages to satisfy the Tribunal on the balance of probabilities that certain treatment had been by reason of race.
68. The Courts have long recognised, at least since the decision of Lord Justice Neill in the King case to which we have referred, that this would be unjust and that there will be circumstances where it is reasonable to infer discrimination unless there is some appropriate explanation. Igen v Wong confirms that, and also in accordance with the Burden of Proof directive, emphasises that where there is no adequate explanation in those circumstances, then a Tribunal must infer discrimination, whereas under the approach adumbrated by Lord Justice Neill, it was in its discretion whether it would do so or not. That is the significant difference which has been achieved as a result of the burden of proof directive, as Peter Gibson LJ recognised in Igen.
69. No doubt in most cases it will be sensible for a tribunal formally to analyse a case by reference to the two stages. But it is not obligatory on them formally to go through each step in each case. As I said in Network Rail Infrastructure v Griffiths-Henry (at para.17), it may be legitimate to infer that a black person may have been discriminated on grounds of race if he is equally qualified for a post which is given to a white person and there are only two candidates, but not necessarily legitimate to do so if there are many candidates and a substantial number of other white persons are also rejected. But at what stage does the inference of possible discrimination become justifiable? There is no single right answer and tribunals can waste much time and become embroiled in highly artificial distinctions if they always feel obliged to go through these two stages.
70. Another example where it might be sensible for a Tribunal to go straight to the second stage is where the employee is seeking to compare his treatment with a hypothetical employee. In such cases the question whether there is such a comparator - whether there is a prima facie case - is in practice often inextricably linked to the issue of what is the explanation for the treatment, as Lord Nicholls pointed out in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 at paras 7-12, it must surely not be inappropriate for a Tribunal in such cases to go straight to the second stage.
71. The focus of the Tribunal's analysis must at all times be the question whether or not they can properly and fairly infer race discrimination. If they are satisfied that the reason given by the employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then that is the end of the matter. It is not improper for a Tribunal to say, in effect, "there is a nice question as to whether or not the burden has shifted, but we are satisfied here that even if it has, the Employer has given a fully adequate explanation as to why he behaved as he did and it has nothing to do with race".
72. Whilst, as we have emphasised, it will often be desirable for a tribunal to go through the two stages suggested in Igen, it is not necessarily an error of law to fail to do so. There is no purpose in compelling Tribunals in every case to go through each stage. They are not answering an examination question, and nor should the purpose of the law be to set hurdles designed to trip them up. The reason for the two stage approach is that there may be circumstances where it would be to the detriment of the employee if there were a prima facie case and no burden was placed on the employer, because they may be imposing a burden on the employee which he cannot fairly be expected to have discharged and which should evidentially have shifted to the Employer. But where the Tribunal has effectively acted at least on the assumption that the burden may have shifted, and has considered the explanation put forward by the employer, then there is no prejudice to the employee whatsoever.
73. Indeed, it is important to emphasise that it is not the employee who will be disadvantaged if the Tribunal focuses only on the second stage. Rather the risk is to an employer who may be found not to have discharged a burden which the Tribunal ought not to have placed on him in the first place. That is something which tribunals will have to bear in mind if they miss out the first stage. Moreover, if the employer's evidence strongly suggests that he was in fact discriminating on grounds of race, that evidence could surely be relied on by the Tribunal to reach a finding of discrimination even if the prima facie case had not been established. The Tribunal cannot ignore damning evidence from the employer as to the explanation for his conduct simply because the employee has not raised a sufficiently strong case at the first stage. That would be to let form rule over substance.

Applying the law to the facts.

74. The essence of Mr Leiper's argument seems to be that the only proper finding the Tribunal could reach was that there had been treatment of the Appellant which raised a prima facie case of race discrimination. Looking at the claimant's evidence in isolation, as Mr Leiper says should have been done, that is a sustainable argument. But if all the facts are considered then the fact that Ms Taylor displayed the same aggressive manner to all is obviously a potentially highly material fact.
75. If an employer withholds pay from ten similarly placed workers, including one black worker, it does not raise a prima facie case of race discrimination against that worker. Whatever the explanation for withholding the money, the case simply does not get off the ground. Similarly, if a manager acts rudely to a black employee, that will not necessarily raise a prima facie case if the evidence that that conduct is manifest towards all indiscriminately, regardless of race. The Tribunal here took account of Ms Taylor's treatment of others and also her lack of managerial experience. In so doing they were not having regard to the explanation for her specific conduct towards the Appellant. We think there is no error here at all.
76. We should add that even if in this case it could be said that the Tribunal did err in law in concluding that there was no prima facie case established, it is manifestly plain from this Tribunal decision that they considered the explanation from the employer as to why the Appellant was treated as he was, and they concluded it had nothing to do with race. Here was a difficult employee with some unsatisfactory levels of performance and making an issue about having his photograph displayed; some criticism of his conduct was plainly justified although Helen Taylor's manner of dealing with the issue left a lot to be desired (see paras 8.11-14 and 21of the Tribunal decision.)
77. The finding that this had nothing to do with race was an inference drawn from the primary facts, which the Tribunal drew following a detailed and careful analysis of the evidence.

Failure to take adequate account of the evidence.

78. We turn to the second ground relating to this part of this appeal. It is said that the evidence from certain witnesses was that Helen Taylor's conduct was bullying towards them, although their view was that it would not amount to discrimination on grounds of race. It is alleged that this is not the point, and the Tribunal must address this question itself. It is contended that had they properly transferred the burden of proof, they would have appreciated this fact.
79. We agree that the Tribunal must indeed reach its own independent view in the light of all the evidence. But we think that they plainly did so. It is an unjust reading of the Tribunal's decision to submit otherwise. At paragraph 36, it was spelt out by the Tribunal that Helen Taylor's attitude was not limited to the Claimant, nor indeed to black employees. They also say that that conclusion by Susan Taylor in her investigation was corroborated by the witnesses before the Tribunal. The perception of other workers, particularly black workers, is obviously of some evidential value, and in our view the Tribunal did not simply rely on the perceptions of those workers. The Tribunal reached its own independent conclusion, based on the fact that the bullying attitude, if that is indeed what it was, was not limited to black employees, but was more widespread. Unreasonable conduct even when directed towards a black person plainly does not of itself establish race discrimination (Bahl v Law Society [2004]IRLR 799 (C.A.)) and the Tribunal was entitled to conclude that it did not do so in this case where it was directed generally.
80. It was also contended that the Tribunal ought to have spelt out in terms that the "attitude" displayed by Ms Taylor, which is referred to by the Tribunal at para 36, is a reference to intimidatory conduct. The Tribunal ought to have noted in terms at that point that three black employees had been subject to such treatment. The fact that they two of them thought it had nothing to do with race was immaterial. We reject this argument. It is plain from the decision as a whole that the Tribunal was accepting that there was intimidatory conduct which might or might not justify the epithet "bullying". The Tribunal noted that it was manifest both to black and other workers. They set out their principal findings of fact on this aspect of the case and it is clear why they have drawn the inferences they have. We think that the criticism that they should have said more is misconceived.

No victimisation.

81. A separate and quite independent ground of appeal relates to the finding that there was no victimisation. It is submitted here that the conclusions of the Tribunal on this matter, summarised in paragraph 46 above, were erroneous for a number of reasons. It is accepted that none of them is sufficient in itself to amount to an error of law, but it is said that they disclose an unsatisfactory approach when taken in the round.
82. The Appellant says that no attempt was made to compare the Appellant's treatment with that of an appropriate comparator, and that no attempt had been made either to conclude why the Appellant was seen as disruptive. It is also said that the Tribunal ought in terms to have considered the possibility of unconscious discrimination, and that it ought to have considered an additional factor, which was apparently of some concern to Mr Finnegan, namely that the work of the Appellant was of poor quality. This was because Mr Finnegan had apparently stated in evidence that poor performance was a consideration in his decision to terminate the contract, although it was not one of the reasons why he had done so.
83. Again, we think there is nothing in any of these points. What the Tribunal had to decide here was why Mr Finnegan acted as he did. He gave reasons for that and he was found to be an honest witness. These reasons were not connected with the fact that there had been allegations of race discrimination made against Ms Taylor. The Tribunal had to determine whether they accepted that that was truly the case. They were satisfied that it was. So they evaluated the evidence and assessed the veracity of the witness which is precisely what Tribunals have to do all the time.
84. As to the failure to identify a comparator, there is, it seems to us, a direct analogy with the speech of Lord Nicholls, to which we have made reference, in the case of Shamoon. As he pointed out in that case, it will often be meaningless to ask who is the appropriate comparator, and how they would have been treated, without asking the reason why. As we have said, it is often legitimate to focus on the latter question. That is what the Tribunal did here. They looked at the reason why. They were satisfied on the evidence given by Mr Finnegan himself that, notwithstanding the fact that he dismissed Mr Laing so soon after the investigation was completed, he was not acting out of pique at the fact that the complaint had been raised, but for other quite independent and proper reasons. There was in the circumstances no error at all in failing to identify an appropriate comparator.
85. It was also perfectly clear from the Tribunal's decision why Mr Finnegan considered the employee to be disruptive. Examples were given by a number of the witnesses, including Mr Finnegan himself, of difficult behaviour and problems the Appellant had with other staff members, and the Tribunal's own experiences of him bore out this analysis. It is quite fanciful to suggest that Mr Finnegan would be unaware of these problems or that he did not genuinely believe that they existed.
86. Nor in our view is it possibly an error for the Tribunal not to have in terms referred to the possibility of unconscious discrimination. Its reasons clearly negate any such finding. Similarly in our view the Tribunal cannot be justified at all in failing to raise the question of performance. The argument here was that if the Tribunal had referred to this, they might then have gone on to conclude that this criticism was not reasonable, and that might in turn have caused them to reconsider whether the evidence of Mr Finnegan was credible, or possibly whether he might have unconsciously discriminated against the Appellant. All this is in our view wholly unrealistic.
87. Since Mr Finnegan said that it was not a reason for dismissal, the Tribunal were entitled to take that at face value given that they found him to be an honest witness. Indeed, it seems to us that they could certainly have been criticised for using at as a non-racial explanation for dismissal when the witness had said that it was not a material reason. In any event there was clear evidence of some dissatisfaction with his performance. Mr Finnegan gave some examples in evidence but so did other witnesses. His dissatisfaction with performance was rooted in fact and would not have cast doubt on the veracity of his testimony.
88. Finally it is suggested that the finding with respect to victimisation depends upon the Tribunal's finding on the first issue regarding Ms Taylor. It was the failure to comply with her instruction and the difficulties of getting on with her in particular which led to the contract of the Appellant being terminated. We reject this analysis. Mr Finnegan knew of the complaint and the only issue was whether this was why he terminated the Appellant's employment. Whether the complaint was justified or correct or not was immaterial.
89. We have to say that we think that this appeal is seeking to make bricks out of straw. The Tribunal found in essence that the Appellant was a difficult man, not a team player, that he was not handled with the sensitivity he might have been, but that Ms Taylor's insensitivity was directed to all employees, and that the Appellant's subsequent dismissal had nothing to do with race. They set out clearly why they reached that conclusion. It was for them to assess the evidence to determine what inferences could be drawn. We think there is no legitimate criticism of this Tribunal decision at all.
90. Accordingly, notwithstanding the well crafted arguments of Mr Leiper, this appeal fails.