United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR EGYPT EGYPT (of Counsel) (Non-Practising) Instructed by: Cain & Abel Law Firm 62 Trafalgar Avenue LONDON SE15 6NR
For the Respondent	MS SUE SLEEMAN (of Counsel) Instructed by: Messrs Deighton Guedella Solicitors 382 City Road Islington LONDON EC1V 2QA

SUMMARY

RACE DISCRIMINATION

Direct

SEX DISCRIMINATION

Direct

Appeal against findings of sex, race and victimisation discrimination. The EAT held that there was a firm evidential basis for the findings of sex and victimisation discrimination, but that the Employment Tribunal erred in its approach to the question of race discrimination. Since there was no evidence which could possibly justify that inference referred to in the decision, the EAT substituted a finding that there had been no such discrimination.


 


THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)

1. This appeal arises out of claims for sex, race and victimisation discrimination. The claimant was employed as an administrative assistant with the Islamic Cultural Centre and the London Central Mosque Trust Committee. The mosque is apparently the largest in Europe. It is funded by Middle Eastern Islamic States. The director general is nominated by the Saudi Arabian Government, and his deputy and four imams are appointed by the Egyptian Government. There are forty members of staff, including some teachers and much help is secured from volunteers.

2. Dr Teinaz, the second respondent, is a principal environmental health officer with the London Borough of Hackney, but he also acted as health and safety and management adviser to the mosque on a voluntary basis. Later he became head of administration and human resources, again on a voluntary basis.

2. Dr Al-Dubayan, the Director General of the mosque, is an attaché with the Saudi Arabian Embassy. Mrs Mahmoud started work as a library assistant some eight years ago. She did a lot of work for the director general and indeed was described by Dr Teinaz as "the director general's personal assistant". The Tribunal were satisfied that she fulfilled that function although not called that by name.
3. Initially, relations between Mrs Mahmoud and Dr Teinaz were good but they deteriorated about a year later. By the time he was appointed adviser in May 2004 a number of allegations were being made by Dr Teinaz against the claimant. On one occasion he wished to have access to the notice board. She had been told by the director general not to release the key to anyone and she refused to give Dr Teinaz the key and she was subject to some abuse from him. She wrote to the director general complaining about this and saying that she considered she was the subject of sex discrimination.
4. Dr Teinaz replied setting out a number of very serious allegations against the claimant. She was said to be breaching confidentiality in Dr Al-Dubayan's affairs; arranging marriages of convenience in the mosque; being involved in black magic; providing food for functions in the Cultural Centre; and being involved in tax fraud. The Tribunal noted that these were merely rumours in the mosque and although Dr Teinaz suggested that he was merely reiterating those rumours, they considered that this was not the tone or purpose of the letter.
5. The deputy director general, Sheikh Mady, sought to resolve these issues by calling the parties together. Dr Teinaz, however, reiterated his assertion at the meeting that the claimant was involved with magic, which she denied angrily. Other problems then subsequently arose: a further incident concerning the notice board; another where Mrs Mahmoud was alleged to have been involved in black magic by another worker; and her removal from the Cultural Centre by a security guard who confirmed, that he was required to do this at the request of Dr Teinaz.
6. As a result of this last incident, Mrs Mahmoud again complained that she was being subjected to sex discrimination and that nothing was being done. The director general informed Mrs Mahmoud that she could use the Cultural Centre when she wished, but otherwise no further action was taken.
7. On 24 November 2004 there were two further complaints, one by Dr Teinaz concerning the use of a notice board and one by a volunteer imam, a Mr Hussein, who complained about the way he was addressed by Mrs Mahmoud. The Tribunal considered that there was a "strong likelihood" that Dr Teinaz was instrumental in this latter complaint. Mrs Mahmoud was not told of it.
8. On 26 December 2004 Mrs Mahmoud was removed from the position of working for the director general to providing administrative services to the Immam Support Service. This, in essence, involved working for the deputy director general.
9. A further allegation was made by Dr Teinaz on 30 December, including a suggestion that Mrs Mahmoud had accused a man of trying to rape her and of stealing her mobile phone. No allegation of rape had been made and the issue over the phone was sorted out by the director general.
10. When she complained to the director general that Dr Teinaz had looked at her in a disrespectful manner, Dr Teinaz wrote a letter accusing her of intimidation, bullying and using dirty words and he threatened legal action against her.
11. On 28 January he again alleged that she had been guilty of gross misconduct and he sought her dismissal. After he was appointed head of administration and human resources on 31 January 2005, matters continued to deteriorate. He refused to allow her to deal with paperwork relating to marriages and divorces, repeating his assertion that she was arranging unauthorised marriage contracts.
12. He wrongly complained that she had become involved with a divorcing couple, thereby creating acrimony and a violent exchange at the mosque which required police attendance. When she gave her account of the incident with the divorcing couple, Dr Teinaz replied by letter, which she copied to the director general, accusing her of being "objectionable, rude and arrogant" and informing her that her unprofessional conduct and lack of courtesy had been recorded.
13. She took time off work when her aunt died and was alleged to have been in breach of office regulations. Later, in order to comply with obligations imposed by the Criminal Records Bureau, documents were obtained from Mrs Mahmoud and various other people to provide clearance to work with children. There were certain differences in Mrs Mahmoud's name on some of these documents, but the Tribunal noted that there was nothing particularly alarming about these discrepancies, and indeed some of them arose in the mosque's own records.
14. Dr Teinaz sought further documents, including her marriage and divorce certificates, and Home Office documents confirming her status. Mrs Mahmoud at that point sought advice from the Egyptian Association of Great Britain. They wrote to Dr Teinaz about the question of the issue of documents. Following this, he wrote to Mrs Mahmoud giving her a final written warning.
15. Some further documents were provided, but not what Dr Teinaz had requested, and he accused Mrs Mahmoud of fraud and obtaining her job by deception. This was based, as the Tribunal found, not on any real evidence of deception or fraud but merely as a result of a confusion in the spelling of names. Although all members of the mosque had originally been asked for documents, only she was being pressed to provide this additional information.
16. Mrs Mahmoud felt understandably harassed by this treatment. She wrote to Sheikh Mady complaining about it. However, on 9 May 2005 the director general wrote to the Egyptian Association supporting Dr Teinaz in relation to the question of documents.
17. Mrs Mahmoud took five weeks off work for stress which a consultant psychiatrist, Dr Turner, had confirmed continued until late autumn 2005. She subsequently returned to work on 14 June 2005 and raised a formal grievance on the basis of sex discrimination with the director general on the same date. She gave a number of examples of what she considered to be harassment on grounds of sex.
18. Dr Teinaz responded by suggesting that she should be suspended on full pay, pending the provision of relevant documentation. He denied the allegations made against him and lodged a grievance against Mrs Mahmoud for making false allegations.
19. The director general responded to the grievance of Mrs Mahmoud by rejecting the allegations of harassment and discrimination and again sought the additional documents. The Tribunal noted that no attempt had been made to ensure that her grievance was subject to proper consideration through the recognised procedures.
20. On 22 September 2005 Mrs Mahmoud raised another formal grievance claiming harassment and less favourable treatment on grounds of nationality or ethnic or national origins. She lodged her application to the Tribunal on 7 October 2005 with respect to sex discrimination and on 3 November 2005 on the basis of race discrimination. This time a formal grievance was considered by a committee which had been set up specifically to investigate it.
21. Dr Teinaz made efforts to create further complaints against the claimant. The Tribunal set out how he had sought to persuade another gentleman to make a complaint of sexual harassment. The matter was investigated by Sheikh Mady and the gentleman told him that he was pressurised by Dr Teinaz. The man gave evidence to the Tribunal denying this but the Tribunal believed Sheikh Mady. Dr Teinaz also wrote to the police making certain allegations against Mrs Mahmoud. She is alleged to have physically attacked a woman at Heathrow Airport, although that was never put to her, and to have conducted and arranged the marriage of a woman who was already married.
22. The Tribunal identified evidence which showed that these allegations were false. They concluded that it was: "dishonest behaviour intended to harass Mrs Mahmoud". The Tribunal gave other examples of similar attempts to stir up complaints against Mrs Mahmoud.
23. The committee set up to consider her grievance reported on 8 February 2006 and concluded that there was no sex or race discrimination but that she might have felt harassed because of the letters requiring her to clarify her identity. There was an appeal but it was turned down.
24. Then on 6 February Mrs Mahmoud lodged a further grievance with the director general claiming that Dr Teinaz had victimised her because she had raised her race and sex discrimination claims. She identified two matters. The first was the complaint by the gentleman whom the Tribunal found had been pressurised into making a complaint by Dr Teinaz and who had admitted that to Sheikh Mady. Then she submitted that as a result of her complaint he had made these allegations about assault at Heathrow Airport and certain allegations about her arranging marriages improperly. Further claims of victimisation were provided in the application to the Employment Tribunal.
25. Subsequently Sheikh Mady, the deputy director general, wrote to the director general complaining about the conduct of Dr Teinaz. The letter covers many activities but includes the attempt to incite members of staff to write complaints about other members of staff, and Mrs Mahmoud was specifically identified. This ultimately led to Dr Teinaz's removal from his position in the mosque on 12 June 2006 but the Tribunal noted that he continued to act on behalf of the mosque in the conduct of the tribunal proceedings.
26. The respondent's contention before the Tribunal was essentially that Dr Teinaz may have acted in a heavy handed way and displayed poor management, but it was not on grounds of sex or race. The Tribunal noted that others had made complaints about this abusive behaviour, and indeed there had been a petition about his generally overbearing manner. They also complained about harassment, bullying, an unprofessional approach and a Dr Fatima Amer brought a legal action against the mosque as a result of bullying and harassment. But the Tribunal noted that nobody else appeared to have been the subject of such a concerted long campaign of treatment.
27. The Tribunal also noted that the petition from users of the mosque stated that Dr Teinaz "has no respect for women". Sheikh Mady considered that Dr Teinaz's behaviour amounted to "an exploitation of the weakness of women in Islamic culture"
28. The Tribunal then recounted the submissions by the parties and set out the material law. It is not alleged that they misdirected themselves in law. The charge is that they did not properly apply the law to the facts they found.

The law.

29. The basic legal principles are not in dispute. I shall not lengthen this decision with a recitation of statutory provisions. The essential features which need to be borne in mind are these. First, direct discrimination with respect to race or sex is established by the claimant demonstrating that she has been subject to less favourable treatment than someone who does not share the characteristic in issue (sex or race as the case may be). The comparator may be an actual comparator or a hypothetical one. In identifying the comparator, it is crucial that the tribunal identifies a person whose circumstances are similar to that of the claimant. If that is not done, then no proper inference of discrimination can be drawn.
30. In approaching the question of direct discrimination, a tribunal must have regard to the principles laid down by the Court of Appeal in Igen v Wong. That case provides that typically tribunals should adopt a two stage approach. At stage one they have regard to all the evidence, other than the explanation given by the employer, to determine whether an inference of discrimination could be drawn. Where that is so, the burden then shifts at the second stage to the employer to demonstrate that the reason for the treatment is not the forbidden grounds. If it is a significant factor in the treatment, which simply means more than trivial, then he will not discharge the burden.
31. Victimisation discrimination occurs where a person is treated less favourably because he or she has done a protected act. These include raising a grievance alleging that the discrimination has occurred; lodging claims in tribunals; or taking steps in connection with such proceedings. The tribunal has again to focus on the reason why the employer acted as he did.

The Tribunal's decision.

The sex discrimination finding.

32. We shall deal separately with the findings of race, sex and victimisation.

In their conclusions on sex discrimination, they said this (para 9.2.2):

"For the purposes of a complaint of direct sex discrimination the Claimant has to show that she has been treated less favourably than an actual or hypothetical comparator of the opposite sex and has to prove facts from which the Tribunal could conclude that the treatment was on grounds of sex. We accept that the nature of the treatment is such that the Claimant has been less favourably treated than a hypothetical comparator of the opposite sex and that she has proved facts from which we could conclude that the treatment was on grounds of sex. In particular we take into account the lengthy campaign of ill treatment commencing when Dr Teinaz took objection to being denied access to the notice board in May 2004 and the nature of some of the false allegations and the evidence of Sheikh Mady. It is worth referring again to Sheikh Mady's view that Dr Teinaz's behaviour amounted to an exploitation of the weakness of women in Islamic culture. A hypothetical male comparator would not have been treated in this way. We therefore go on to consider whether the Respondents have provided that they did not treat the Claimant less favourably on the grounds of sex. In our view none of the Respondents has shown this. Dr Teinaz who gave the main evidence for the Respondents was, as we have observed, an evasive and unreliable witness. His explanation was that these matters were not connected to differences in sex and that he has treated everybody in the same manner however unfortunate that manner may have been. We do not accept this. His explanation is not an adequate explanation of his lengthy campaign of ill treatment. The complaint of sex discrimination therefore succeeds against him and the Mosque which is responsible for the behaviour of its agent. Insofar as Dr Al-Dubayan failed to deal adequately with the complaints made by Mrs Mahmoud the Mosque is also responsible."

33. We note in passing that this is not a wholly satisfactory analysis of the two stage process in Igen v Wong. Its conclusion that a hypothetical male comparator would not have been treated in the same way is a final conclusion, but the Tribunal treats it as a finding sufficient to shift the burden of proof. Nevertheless, the substance of the reasoning is clear. Mrs Mahmoud was subject to treatment over and above that meted out to others; that raised an inference of sex discrimination and it had not been rebutted.
34. Mr Egypt advances two principal arguments in support of his contention that the Tribunal erred in the way it approached the question of sex discrimination. He referred to Bahl v The Law Society [2004] EWCA Civ 1070 [2004] IRLR 799 and particularly paragraphs 74 and 75 which emphasise that where there are obvious reasons for the treatment the Tribunal must, if they reject an obvious explanation, give cogent and considered reasons for doing so. In this case he submits that there are two independent potential explanations which the Tribunal failed properly to give adequate consideration.
35. The first was that the origin of this campaign of treatment had been the argument over the notice board. He submits that the obvious explanation for all the treatment was that Dr Teinaz was irritated at the behaviour of an employee junior in the hierarchy. Indeed, he appeared to be submitting at one stage that it necessarily followed thereafter that this was the reason for the campaign. But that cannot be right; plainly it could be the reason but it does not follow that it necessarily is the reason. It may be true that but for that original incident the campaign may not have continued, but that does not mean that the reason for the campaign was the original incident. As Ms Sleeman pointed out, often discriminatory conduct may be triggered by a non-discriminatory event.
36. His second argument was that there was plenty of evidence that Dr Teinaz had treated badly men and women alike. Indeed, Ms Sleeman accepted that that was so in her submissions to the Tribunal. Accordingly, he says that the obvious explanation for this treatment was Dr Teinaz's generally hostile and abrasive manner rather than anything to do with sex.
37. Again, we make the same point that this could well be an explanation for the treatment. Therefore it is a matter that needs to be considered by the Tribunal, but as we will indicate, it was so considered in this case. Mr Egypt suggests that it is impossible in practice for a tribunal to differentiate between the extent to which Dr Teinaz may have treated Mrs Mahmoud when compared with other persons.
38. We do not accept that. They found as a fact that this was a continuing course of harassment which went beyond the kind of treatment meted out to other persons. That was plainly enough to raise a prima facie case of discrimination, requiring the burden to shift to the employer. They then considered the reasons advanced for that treatment. In that context is it pertinent to note that they considered Dr Teinaz to be an unreliable and unimpressive witness. They also had regard to Sheikh Mady's evidence. That alone, once accepted, provided a proper evidential basis for their conclusions, and it was not the only evidence. But his view was also reflected in the observations in the petition. Moreover, Dr Teinaz had also considered that Mrs Mahmoud had acted in a way which was inappropriate for her "as a woman." The evidential material to sustain their conclusion was indeed very strong.

The race discrimination finding.

39. The conclusion which the Tribunal reached on this is set out in para 9.3.2. It is as follows:

"We have found that the treatment of Mrs Mahmoud over a lengthy period was on the basis of her sex. It was also argued on her behalf that in relation to the request for documentation racial discrimination had also occurred. On our factual findings the letter written on Dr Teinaz's behalf of the 11 April 2005 did not amount to less favourable treatment. It followed the implementation of a policy at the Mosque which applied to all those working there. However from 17 April 2005 onwards the treatment of Mrs Mahmoud in relation to the documents issue clearly did amount to less favourable treatment. Although we have found that the chain of ill treatment related to a difference in sex there is no reason why it should not also amount to less favourable treatment on the basis of race as well. In relation to direct discrimination on the basis of race or ethnic or national origin the question is whether the Claimant has been treated less favourably than a real or hypothetical comparator from a different racial group. We have no doubt that this treatment in relation to the documentation amounts to treatment less favourable than that which would have been accorded to a UK born or UK national administrative assistant. The Claimant has proved facts from which the Tribunal could conclude that the treatment was on the grounds of race or ethnic or national origin. There is a difference in race and origin and less favourable treatment in the demand for amongst other thins, Home Office papers which relate to Mrs Mahmoud's right to be in the UK when she commenced employment several years earlier. The burden on the Respondents in relation to this matter is high in that they have to show that any less favourable treatment is not in any sense whatsoever on the grounds of race or ethnic or national origin. The Responents have not discharged this burden. It is clear from the correspondence that it was insisting on the sort of documentation which a comparator would not be required to produce. In this respect the Respondent has been unable to show that there was no connection in any sense whatsoever with the Claimant's race or ethnic or national origin. This complaint also succeeds".

40. Mr Egypt contends that this is wholly inadequate and that the Tribunal has simply relied on the factors identifying sex discrimination and transposed them across to race discrimination without any proper analysis of the case. The relevant circumstances which might justify an inference of sex discrimination is simply lacking with respect to the race allegation.


42. Ms Sleeman has explained to us that there were in fact two quite distinct allegations of race discrimination advanced before the Tribunal. The first was that Mrs Mahmoud had indeed been discriminated against because of her Egyptian origins. It was apparently alleged that there was some hostility towards her from Dr Teinaz because he was a Libyan.

41. The second, which emerged rather in the course of the hearing, was that the form of discrimination which occurred here was that Mrs Mahmoud was being discriminated against on racial grounds because the treatment meted out to her was not treatment that could be meted out to a UK national. They would not need the relevant documentation which Dr Teinaz was seeking. Therefore, unlike the first way in which the race allegation was put, it was alleged that this was discrimination not specifically on grounds of Mrs Mahmoud's Egyptian origin or nationality but on the basis of her being a non-UK citizen.


44. The Tribunal's reasoning, it has to be said, does not identify precisely which of these two arguments it was considering. If it was intending to deal with the first argument then we have no doubt that it fell into legal error. In determining whether or not Mrs Mahmoud had been discriminated against on grounds of her Egyptian origin it is quite inappropriate to fix as the comparator a UK citizen who does not need the papers in question. Plainly, that is not a comparator whose circumstances are remotely similar to that of Mrs Mahmoud and the comparison tells us nothing.

42. Whilst there may be some dispute as to precisely how to characterise the appropriate comparator, broadly he or she would have to be somebody who has been the subject of a similar hostility over the period concerned, who also has the relevant documentation and who has failed to provide it, but is of a different national origin. In truth, there was simply no evidence from which the Tribunal could have inferred race discrimination of this nature, or at least none referred to in the decision.
43. The obvious explanation for this treatment was precisely the same explanation as for the other incidents which had occurred, namely the hostility fuelled by sex discrimination. There is simply no evidential basis vouchsafed by the Tribunal for picking out this particular incident and alleging that it is on grounds of ethnic origin when none of the other incidents are even alleged to have been for that reason. Whilst we accept of course that in principle race and sex discrimination can occur at the same time, there was no evidence to justify that inference here.
44. From the comparison made by the Tribunal, it appears in fairness that they may not have meant to address this form of discrimination. They must have focused on the second way in which the claim was advanced, although it has to be said that the reasoning is often somewhat less than adequate. Even assuming that this was their intention, in our judgment the Tribunal fell into error. It is true that but for the fact that she was a non-UK national, Mrs Mahmoud would not have been required to have these papers in the first place. In that sense, her non-UK nationality or national origins, was a cause of her treatment in the sense of causa sine qua non; but for this factor, she would have been treated differently.


48. But that does not assist when determining what the reason for her treatment was. For reasons we have already given, there is simply no basis for inferring that the reason which motivated Dr Teinaz in relation to this matter was any different to that which was the reason why he ill treated her in relation to the other incidents. The Tribunal has confused a question of causation with the different question of the reason why the employer acted as he did. Accordingly, we are satisfied that the Tribunal had no proper basis for inferring race discrimination in this case. We substitute a finding that there has been no race discrimination in this case.

Victimisation.

45. We turn to the question of victimisation. This was limited to certain of the incidents which had occurred after Mrs Mahmoud had lodged her grievance alleging that Dr Teinaz was discriminating against her on sexual grounds, and also after she had lodged her claim to the Employment Tribunal.
46. They included, in particular, the allegation which the Tribunal found to be true, that Dr Teinaz had instigated a false complaint from a third party. They also included certain other matters which were provided by Dr Teinaz to the committee that was considering the grievances, namely the accusations relating to Mrs Mahmoud attacking a woman at Heathrow Airport and making arrangements for marriage for money.
47. There is no complaint about the legal analysis by the Tribunal. They set out their conclusions in the following way (para 9.4):

"…Our factual findings show that we accept that Dr Teinaz encouraged the complaint by Shahid Hussein when Mrs Mahmoud entered her grievance based on race discrimination and so far as the allegations at page 372 are concerned [these are the other complaints to which we have made reference] we have considered these and found them to be false. In respect of those two matters therefore there is in our view clear victimisation. There are protected acts, less favourable treatment facts from which the Tribunal could conclude that the treatment was by reason of the protected acts and the Respondent has failed to prove the less favourable treatment was not by reason of the protected acts. …"

48. We have given careful consideration to this part of the decision. The analysis is wholly cogent so far as it goes. The criticism advanced by Mr Egypt was that the Tribunal did not address at all the issue whether the reason for Dr Teinaz acting in this way was the same as his reason for ill treating Mrs Mahmoud before she had done any of the protected acts. In other words, if this was because he acted badly to everyone, or even because he was hostile against her for reasons connected with her sex, that provides an obvious explanation for this conduct continuing.
49. There is some force in that submission, but we think read fairly there is enough evidence before the Tribunal for its decision to be sustained. In particular, it must be borne in mind that under Igen v Wong once the prima facie case is raised that there may be discrimination on these grounds, the onus shifts to the employer to establish that the reason for the conduct is not because the employee has done the protected act.
50. It is then highly significant in this case that the Tribunal spelt out in terms that where there were conflicts of evidence they preferred the evidence of Mrs Mahmoud and indeed felt that Dr Teinaz was "an evasive and unreliable witness". That meant that his explanation was one they could not rely upon.
51. Equally importantly, the Tribunal identifies in its decision the close links between these allegations and the protected acts. In the case of instigating the false accusation he appears to have made a request for the accusation to be made shortly after Mrs Mahmoud raised her grievance on 22 September.
52. In relation to the other matters they were raised while the committee were still deliberating over the grievance and indeed were observations made to the committee and in some cases to the Police. The link here between the raising of the grievance and the incidents is striking.
53. Accordingly, whilst we consider that the Tribunal might have provided a fuller account of its reasoning on this matter, we are equally satisfied that there would be no purpose in remitting the case to them for further findings. The evidential basis for their conclusion that the respondent had failed to prove that less favourable treatment was not by reason of the protected acts was indeed strong.

Conclusion.

54. In our judgment the appeal succeeds with respect to the finding of race discrimination but fails with respect to the other two grounds. We will hear from the parties about the extent to which this ought to affect the amount of compensation awarded by the Tribunal.