United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR I TRUSCOTT (One of Her Majesty's Counsel) Instructed by: NHS Scotland Central Legal Office Anderson House Breadalbane Street Bonnington Road Edinburgh EH6 5JR
For the Respondent	MR B NAPIER (One of Her Majesty's Counsel) Instructed by: Quantum Claims Employment Division 70 Carden Place Queens Cross Aberdeen AB10 1UP


 


SUMMARY

SEX DISCRIMINATION: Burden of proof

RACE DISCRIMINATION: Inferring discrimination

Tribunal found Claimant to have suffered both sex and race discrimination in course of her employment as a consultant orthodontist. On appeal, Tribunal found to have failed to carry out a like for like comparison with chosen comparators and to have, wrongly, only considered Appellants' submissions anent inappropriateness of comparators at the second stage of the 'Igen' test. There was no material on which the Tribunal could properly have inferred that there was a like for like comparison being relied on by the Claimant and so no basis for inferring discrimination. Appeal upheld and claims of discrimination dismissed.


 


THE HONOURABLE LADY SMITH

INTRODUCTION

1. This is an employers' appeal against certain findings of discrimination in the judgment of an Employment Tribunal sitting at Aberdeen, Employment Judge Mr N M Hosie, registered on 7 December 2007. We will continue to refer to parties as Claimant and Respondents. The Claimant was employed by the Respondents as a consultant orthodontist between 1 December 1993 and 31 March 2005. She is a British citizen of Asian origin.
2. The Tribunal's judgment was in the following terms:

"The unanimous judgment of the Tribunal is that:-

(1) the claimant was unfairly dismissed by the respondent;

(2) the respondent unlawfully discriminated against the claimant in terms of Sections (1)(1)(a) and 6(2)(b) of the Sex Discrimination Act 1975;

(3) the respondent unlawfully discriminated against the claimant in terms of Sections 1(1)(1)(a) and 4(2) c) of the Race Relations Act 1976; and

(4) the case is continued in respect of the award of compensation."

3. The finding of unfair dismissal was not appealed against, it having been conceded by the Respondents in the course of the hearing that the Claimant had been constructively and unfairly dismissed. It was not, however, conceded that the Claimant's resignation was by reason of her having been discriminated against in any respect. The Respondents' position, as explained in the course of the appeal hearing, was that the possibility of the Claimant's resignation being by reason of discrimination was not raised as an issue before the Tribunal. It was not a case of which they had had notice.
4. Before the Tribunal, the Claimant was represented by Mr Lefevre, solicitor, and by Mr Napier QC, before us. The Respondents were represented by Ms Locke, Advocate, before the Tribunal and by Mr Truscott QC, before us.

BACKGROUND

5. The facts found by the Tribunal, relevant for the purposes of the Appeal were as follows:
6. Throughout the period of her employment with the Respondents, the Claimant was a consultant orthodontist. In 1996, she became Head of Service for the orthodontics department.
7. On 4 April 2002, Helen Strachan, the Service Manager for surgical specialities, made an unfounded allegation against Professor Forrester, who was then the Head of Service for opthalmology, a much larger department than orthodontics. She alleged that he had manufactured his waiting list the previous day, the result of which was that an operation that had been scheduled for her mother was cancelled. She indicated that her information had come from one of his colleagues, which was also an unfounded allegation. His colleagues in the department were in fact wholly supportive of him. Professor Forrester was furious. His decision to cancel certain operations had been made purely on the basis of his judgment as to clinical need. Thus, on 5 April 2002, he wrote to Mr Cumming, the Respondents' Chief Executive intimating his resignation from the position of Head of Service. At the end of his letter he stated:

"… I feel I do not have the support of my colleagues either in management or clinically and I think it is appropriate that I resign from Head of Service today. As you know I took this position in order to try to restore order to the Clinical Department when in fact I have very great pressure of duty in my University role."

8. At that time, Professor Forrester made it clear to the Assistant Chief Executive (Deb Grant), the Medical Director (Dr Roelf Dijkhuizen) and the Director of Nursing (David Benton), with whom he met to discuss the reason for his resignation, that he would not be prepared to return to the position of Head of Service if Helen Strachan continued to have responsibility for the department of opthalmology. After these discussions with Professor Forrester, a pragmatic plan was determined on whereby Helen Strachan would not have day to day involvement with the running of the department; that would be the task of a Deputy to the Head of Service. The Respondents then, 6 or 8 weeks later, advertised the post of Head of Service for the department of opthalmology. Professor Forrester was the only applicant and he was appointed after having made it clear that he would resign again if Helen Strachan was given Service Manager responsibilities for his department again. The plan to have a Deputy deal with the day to day running of the Department, rather than Helen Strachan, was implemented. There was an employee, Fiona Mckenzie, due to return from a secondment who could carry out the necessary responsibilities in the context of a dual role of Senior Nurse and Service Manager.
9. On 9 September 2003, the Claimant attended a monthly meeting with Helen Strachan and the Clinical Nurse Manager (Edith Munro). At that meeting, Helen Strachan and Edith Munro were verbally abusive, hostile and aggressive to the Claimant. She was very upset by their conduct towards her. There is no finding (nor was there any allegation) that their conduct was on the grounds of the Claimant's sex or race. Following the meeting, the Claimant could not bring herself to talk to anyone about the way she had been treated (paragraph 17). She did, however, consult an occupational health doctor, Dr Murphy, on 6 October 2003, who wrote to the Respondents' Chief executive, Mr Cumming to advise him that the Claimant had "work place" rather than "health" "issues". The Claimant met with Mr Cumming on 7 October 2003. She told him "about the difficulties that she had been experiencing with Mrs Strachan and Mrs Munro and told him what had happened at the meeting on 9 September 2003" (paragraph 18).
10. At the meeting on 7 October 2003, the Claimant told Mr Cumming that it would be very difficult for her to continue to work with Mrs Strachan and Mrs Munro after the way they had treated her on 9 September and that "she would be considering her position." (paragraph 19).
11. On 7 November 2003, Dr Murphy wrote to Mr Cumming and advised that the Claimant was "generally improving" (paragraph 18).
12. On 30 November 2003, the Claimant resigned from her position as Head of Service. There is no finding in fact as to what was her reason for doing so at the time that she resigned nor is there any finding in fact as to what reason, if any, she gave to the Respondents for doing so. She was on parental leave at the time she resigned from that post. Mr Colin Larmour, consultant orthodontist, took over from the Claimant as Head of Service, on a temporary basis.
13. By letter dated 9 December 2003, the Claimant wrote to the Respondents' Associate Medical Director, Mr K McLay, to complain formally about the way that she had been treated by Mrs Strachan and Mrs Munro at the meeting on 9 September (paragraph 20). Her complaint was referred to Dr Dijkhuizen.
14. On 12 December 2003 the Claimant attended a meeting with Mr Larmour and Sister Moira Munro to discuss whether or not there should be a consultant present on the interviewing panel for the appointment of dental nurses. Prior to that meeting, when the Claimant was Head of Service, she had repeatedly made it known that she was of the view that there should be a consultant present at these interviews. Sister Moira Munro had not agreed with her about that. Sister Moira Munro had suggested that there be a meeting to discuss the issue. Hence the meeting of 12 December 2003, by which date Mr Larmour had taken on the role of Head of Service. At that meeting, the Claimant evidently argued for there being a special relationship between the medical staff of orthodontics and their nurses which was different from any other department. Sister Munro did not agree and referred to maxillo facial as a department where the nurses also worked closely with the medical staff (and which was a department to which nurses rotated from orthodontics) but the interview panels did not include a consultant. Sister Munro's position was that it would not be appropriate for some nurses to have been interviewed by a panel including consultants when others would not be. Matters were left that the Claimant should liaise with her colleagues in maxillo facial and find out what their views were.
15. After the discussion on 12 December, Mr Larmour spoke to a consultant in the maxillo-facial department about the matter who agreed that there should be a consultant on the interview panel. That was reported by him to Sister Munro and she decided, as stated by her in an email dated 12 December 2003:

"Following our meeting this morning to discuss the interviewing of dental nurses, I understand that Mr Larmour contacted Mr Donachie and that the following is the procedure that we will take in the future both in the Orthodontic department and Maxillofacial Unit.

A Consultant will be present on the interview panel for Dental Nurses with the Senior Dental Nurse being the appointing Officer.

This will be reviewed after two interview incidences to see if it is proving to be workable and an efficient use of staff time."

16. By letter dated 4 March 2004, Dr Dijkhuizen advised the Claimant that he had decided to proceed with a formal investigation in terms of the Respondents' "Dignity at Work Policy". He appointed a panel of three people to deal with it.
17. In April 2004 Mr Larmour was appointed Head of Service of orthodontics on a permanent basis. In March 2004 he had told the Claimant that Mr Chisholm, the General Manager, had said to him that if he had any problems with Helen Strachan, then he was to let him know immediately. He also told her that Kenneth McLay, the Associate Medical Director, had said to him "be friends with" the service manager and "you'll get anything signed".
18. On 15 June 2004, a copy of the main body of the Dignity at Work investigation report was sent to the Claimant by the Chairman of the panel. The Claimant was distressed as it merely repeated the stated positions of the parties involved (Helen Strachan and Edith Munro refuted the Claimant's allegations and Helen Strachan alleged that the Claimant had been responsible for Helen Strachan's Assistant Service Manager, Gillian Cartwright, going off work with stress). The report did not reach conclusions or recommendations. It included the allegation about the Claimant anent Gillian Cartwright despite the fact that Ms Cartwright had, prior thereto, advised the Respondents that it was Helen Strachan who was responsible for her going off work; she had lodged a formal complaint about Mrs Strachan on her return to work in January 2004.
19. On 24 June 2004, the Claimant met with the Respondents' General Manager, Mr Chisholm, and requested that Helen Strachan be removed from her Service Manager responsibilities in relation to the department of orthodontics.
20. The Claimant wrote with her detailed comments on the report in a letter dated 28 June 2004. The panel issued its final report on 6 August 2004. It contained some recommendations. Regarding the Gillian Cartwright matter, it stated that the panel had been able to "evidence that the reason for the Assistant Service Manager's absence was not related to Mrs Hewage."
21. Dr Dijkhuisen was disappointed with the report. He considered that it was weak and that only one of its recommendations – "attempts be made to establish effective working relationships"- remained relevant. It came too late. He met with the Claimant on 20 August 2004 to review the report. The Claimant expressed the view that the report was a "shambles" and requested again that Service Manager responsibilities for the Department of Orthodontics be removed from Helen Strachan. Dr Dijkhuisen apologised for the delay in the issuing of the report. He told her that there was, though, no basis in it for removing Helen Strachan from responsibility for orthodontics. He subsequently wrote to the Claimant, Helen Strachan and Edith Munro, indicating that he would write again in the week beginning 13 September 2004 to indicate how the Respondents would take forward the recommendations of the report. However, he then wrote, on 15 September 2004 to advise that he did not believe that implementation of the report's recommendations would improve working relationships and he would not, therefore, be recommending any future action on the report. The Claimant was annoyed and very upset to receive that letter and wrote to Dr Dijkhuisen in reply, by letter dated 3 November 2004; there had been substantial delay in the production of the report and:

"As a victim who has been subjected to bullying and harassment I wish to appeal against the decision due firstly to the panel failing to acknowledge that the attack on myself took place and secondly the decision of the organisation not to take any action."

22. Having been advised of her right to seek a review, the Claimant wrote to Mr Chisholm by letter dated 30 November 2004 intimating that she wished to do so.
23. By letter dated 24 December 2004 the Claimant resigned from employment with the Respondents, giving three months notice with effect from 1 January 2005. At that stage,
    

Mr Chisholm had not responded to her review application. The Tribunal found (paragraph 44):

"…she decided to resign as her health continued to be adversely affected by the way she had been treated and there appeared to be no progress in addressing her complaint properly."

24. The Tribunal make no findings of fact to the effect that the Claimant's resignation was attributable to her considering that she had been discriminated against. On the Tribunal's findings of fact, no mention of discrimination was made by her to the Respondents prior to her resignation, at the time of her resignation or indeed at any time prior to it being alleged on her behalf, by the British Medical Association, in June and August 2005, in letters to which we refer below. The treatment referred to by the Claimant as being part of the reason for her resignation would appear to be the treatment she received from Helen Strachan and Edith Munro and the treatment she received from the Respondents in connection with the Dignity at Work report. The lack of progress referred to would appear to be a reference to the delay in the production of the report, the decision not to take forward its recommendations and the fact that the Claimant had had no reply from Mr Chisholm. On the Tribunal's findings it seems plain that those were the matters that comprised the Claimant's concerns at the time she resigned.
25. By letters dated 30 June and 22 August 2005, the British Medical Association, acting on behalf of the Claimant, set out the details of a grievance that had been intimated by the Claimant on 18 May 2005 (see: Tribunal's reasons at paragraphs 46 and 47). They included the following terms:

"….we wish to notify you that it is the opinion of Mrs Hewage that the treatment afforded her during the seventeen months prior to her resignation was discriminatory when compared to the treatment afforded to a white male consultant doctor in a similar situation." (letter of 30 June 2005)

and

"Mrs Hewage submitted that a white male consultant colleague, Professor John Forrester, Head of Opthalmology, also experienced difficulties with the Service Manager, Mrs Helen Strachan. Unlike Mrs Hewage's situation, when she continued to be subjected to continuing bullying and harassing treatment until her resignation, Opthalmology was removed from the Service Manager's remit after the problem was highlighted. In view of his different treatment, Mrs Hewage believes that she was subjected to less favourable treatment to her white male colleague on the grounds of her sex and race." (letter of 22 August 2005).

26. A panel was convened to consider the Claimant's grievance. It reported in March 2006. In respect of the Claimant's claims of race and sex discrimination it found:

"The panel is certain that it did not hear evidence that supported the allegation of bullying and harassment or discrimination on grounds of race or sex."

Rather, as stated by the Tribunal at paragraph 49, it found:

"We do however (with the benefit of hindsight) see pattern of incidences which, if the organisation had been able to stand back and analyse the situation on a holistic basis, may have been handled differently. Rather than look at each alleged incident in isolation taking an overview of the pattern of events, it may have been possible to see that some working relationships within the department have become unco-operative and to an extent destructive and that more structured intervention by the organisation was required."

THE CLAIMANT'S CLAIM

27. In the light of the issues that arise in this appeal, it is important to identify the nature of the Claimant's claim: what is it that she gave fair notice of? As discussed by this Tribunal in the case of Ladbrokes v Traynor [2007] UKEATS/0067/06/MT, it is not open to a claimant to pursue a case of which fair notice has not been given to the respondent.
28. The Claimant claimed in respect of unfair dismissal and in respect of discrimination on grounds of sex and race. The terms of her form ET1 intimate the following allegations:

- that she was subjected to a verbal attack by the Service Manager (Helen Strachan) and the Nurse Manager at a meeting on 9 September 2003, which was unprovoked and unprofessional

- that she subsequently suffered further bullying and harassment emanating from Helen Strachan

- that she felt it necessary to resign from the post as Head of Service so as to minimise her contact with Helen Strachan; that resignation was after September 2003, but before she lodged a formal complaint

- that she subsequently, in December 2003, made a formal complaint about her treatment by Helen Strachan and the Nurse Manager at the meeting on 9 September 2003

- that the Respondents delayed in responding to her complaint, when they did report, she was not satisfied with its contents, she appealed and the Respondents did not fix an appeal hearing. In the meantime the bullying treatment of her continued

- since, by December 2004, the bullying by Helen Strachan was continuing and the Respondents had not dealt with her complaint timeously, there had been a fundamental breakdown in the Claimant's trust and confidence in the Respondents and she tendered her resignation , giving three months notice .

29. Those allegations all read as relating to her claim for unfair dismissal. The only person said to be responsible for the harassment and bullying complained of after 9 September 2003 was Helen Strachan. In particular, the Claimant does not seek to make a case of institutional harassment and bullying.
30. In a separate paragraph the Claimant states:

"The Claimant is a female consultant doctor of Asian origin. The Claimant submits that other white male consultants were not subjected to the same bullying and harassing treatment that she suffered and that she would not have been treated in the way in which she was were it not for her sex and race. Accordingly, the Claimant submits that she was subjected to less favourable treatment on the grounds of her sex and race contrary to the Sex Discrimination Act 1975 and the Race Relations Act 1976."

31. On the findings of the Tribunal, it was not a matter of other male consultants not being bullied and harassed by Helen Strachan; in the case of one such consultant, Professor Forrester, there are clear findings to the effect that he was indeed bullied and harassed by her. Rather, the Claimant's complaints of discrimination arose out of what the Respondents did (or did not do) about Helen Strachan in light of the way that she was behaving, a matter to which we will return.
32. Also, in part 3 of the ET1, the Claimant has ticked the box to indicate that her claim is about something "in addition to the dismissal". That "something" is a complaint of discrimination that was set out in the written grievance that was intimated to the Respondents in the two letters from the British Medical Association, on her behalf, dated 30 June and 22 August 2005; the Claimant refers, in her ET1, to her grievance. We have set out the relevant parts of those letters above. Being a complaint other than that the Claimant was dismissed, she required, of course, to have complied with the statutory grievance procedures in respect of it (Employment Act 2002, s.32 and Schedule 2; Employment Act 2002 (Dispute Resolution) Regulations 2004).
33. "Dismissal", in the form ET1, is explained as including a claim for constructive dismissal where an employee has resigned because of something that their employer "did or failed to do". In separating out her complaint of less favourable treatment on grounds of race as compared to Professor Forrester and, possibly, at least one other unnamed consultant, the Claimant makes it clear that hers is not a complaint of discriminatory dismissal. Her complaints of unfair dismissal and of discrimination are separate and distinct. It was not open to the Tribunal to regard the Claimant's complaint as being that she had suffered discriminatory dismissal.
34. In some respects, the Tribunal clearly treated the claims as separate. They begin their reasons, at paragraph 1, by stating:

"Mrs Hewage claimed that she was constructively and unfairly dismissed by the Respondent and that she was discriminated against on grounds of her race and sex." (our emphasis).

Also, at paragraph 97, they state:

"….in the course of the Hearing the Respondent conceded that the Claimant had been constructively and unfairly dismissed. This left the sex and race discriminatory claims for us to consider."

and they considered each of a series of alleged "incidences" (which were not set out either in the ET1 or, other than the Professor Forrester matter, in the grievance letters) of discrimination and made discreet findings as to whether, in each case, there had been sex and race discrimination. Further, the terms of their judgment, as set out above, were not such as to involve a finding of discriminatory unfair dismissal. Where a Tribunal is satisfied that a dismissal has amounted to unlawful discrimination, it is to be expected that it will be expressly stated in the order in its judgment, that that is the finding that it makes.

35. At paragraph 134, when referring to the matter of compensation, however, the Tribunal state:

"As the dismissal was both unfair and discriminatory the heads of compensation overlap, but they cannot be awarded twice…"

36. They make further mention to the effect that the dismissal was discriminatory at paragraph 141. These references to the dismissal being a discriminatory one arrive in the Tribunal's reasons without, as we have observed, their having made any specific findings that the conduct of the Respondents which was such as to entitle the Claimant to resign was unlawful discrimination. All that is stated is, at paragraph 44:

"….she decided to resign as her health continued to be adversely affected by the way she had been treated and there appeared to be no progress in addressing her complaint properly."

37. Mr Napier, for the Claimant, submitted that the ET1 did give notice of a claim of unfair discriminatory dismissal although he did seem to accept that the Tribunal had not approached the issue of whether or not the dismissal was discriminatory in the correct way. In particular, he accepted that the Tribunal had looked at five different matters separately, determined whether each of them, separately, amounted to unlawful discrimination and then jumped to the statement in paragraph 132, that the dismissal was discriminatory. He said, in terms, that we may feel, in the light of the Tribunal's failures in that regard, that the issue required to be remitted. Mr Truscott, for the Respondents, on the other hand, submitted that discriminatory dismissal was not an issue in the case. The ET1 did not give notice of such a claim and it was not, accordingly, open to the Tribunal (or any Tribunal on a remit) to make any such finding. We agree with Mr Truscott. The form ET1 gives notice of an allegation of unlawful sex/race discrimination as compared to the treatment afforded to Professor Forrester. It does not give fair notice that the Claimant raises the distinct and separate issue of whether the constructive dismissal was discriminatory. The Tribunal ought to have realised that fairness and justice required the Claimant to have given notice in her ET1 of such a claim if she sought to pursue it and that, since she had not done so, discriminatory dismissal was not an issue in the case. In fairness to them, at the outset of their reasons, in the terms of their judgment and in the manner in which they separated out the discrimination allegations and dealt with them separately, they appear to have done so. That approach appears to have been forgotten, however, in the later part of their reasons.
38. We turn to the question of whether the Claimant gave fair notice of any allegation of discrimination beyond that which involved comparing her with Professor Forrester. The Professor Forrester matter is explained in the second of the BMA grievance letters and is accordingly imported into the ET1 by reference. On behalf of the Claimant, Mr Napier sought, however, to support the Tribunal's findings that the Claimant had received discriminatory less favourable treatment in respect of two separate matters, as compared to another consultant, Mr Larmour. Those two matters were the occurrences involving Mr Larmour in December 2003 and March 2004 which we have detailed above. We do acknowledge that in the allegation of discrimination part of her ET1 the Claimant refers to consultants in the plural. That is all the notice that is, however, given of anything relating to any consultant other than Professor Forrester. Mr Napier pointed out that, unlike a case of equal pay, it was not necessary to state separate comparators but that is, we consider, not the relevant issue here. The issue is one of fair notice and we are not satisfied that the Claimant had said anything in her ET1 that could properly form the basis of a finding of discrimination in relation to anything involving any consultant other than Professor Forrester, bearing in mind the basic and important requirements of fair notice. Any allegation of discrimination is a serious matter and Respondents are entitled to be told, in advance, what it is that the Claimant alleges them to have done that amounts to unlawful discrimination. As was commented by Elias J, sitting in this Tribunal in The Law Society v Bahl [2003] IRLR 640, at para. 90, it is not for a tribunal to extend the range of complaints of its own motion, which is what this tribunal appears, in this respect, to have done.

THE TRIBUNAL'S FINDINGS OF DISCRIMINATION

39. The Tribunal's consideration and determination of the Claimant's claims of discrimination are contained in paragraphs 97 – 133 of their judgment. They begin by setting out some of the provisions of the Sex Discrimination Act 1975 ('SDA') and the Race Relations Act 1976 ('RRA') although they do not refer to section 5(3) of SDA or section 3(4) of the latter. They are important provisions which were highly relevant to the case and it is a little surprising that the Tribunal has not done so.

The Tribunal then set out verbatim the guidance contained in the Annex to the judgment in Igen v Wong [2005] IRLR 258 observing that Igen was recently reaffirmed by the Court of Appeal in the case of Madarassy v Nomura International Plc [2007] IRLR 246 although they do not refer to any particular parts of that judgment. After the quotation from the guidance in Igen the Tribunal state:

"104. We proceeded, therefore, to consider each of the "incidences" referred to above, having regard to the statutory framework and the helpful guidance in Igen."

The reference to incidences is a reference to:

i. the Claimant having sought to draw a comparison between the way she was treated and the way that Professor Forrester was treated regarding Helen Strachan being Head of Service for the departments in which each of them worked;

ii. the Claimant having sought to draw a comparison between the way that she was treated and the way that Dr Larmour was treated regarding the matter of whether or not there should be a consultant on the nursing appointment panel;

iii. the Claimant having sought to draw a comparison between the way that she was treated and the way that Dr Larmour was treated regarding support given to each in connection with handling Helen Strachan;

iv. the Claimant asserting that she was discriminated against in respect of the Dignity at Work Panel's handling of Helen Strachan's unfounded allegation that she, the Claimant, was responsible for Gillian Cartwright's absence from work;

v. the Claimant having sought to draw a comparison between the way that her formal complaint was dealt with and the way that a formal complaint lodged by Gillian Cartwright was dealt with;

vi. the Claimant's complaints about the way she was treated in connection with what was known as the Argyll House Working group;

vii. the Claimant's complaints about the handling of the grievance that she lodged after having left the Respondents' employment;

viii. various individual complaints that the Claimant had regarding the way she had been treated by Helen Strachan (other than the incident on 9 September 2003).

40. The Tribunal found that the Claimant had been discriminated on grounds of sex and race in respect of matters i), ii) and iii) above and on grounds of race in respect of the matters referred to at iv) and v). On her behalf, Mr Napier only sought to support the findings of discrimination in respect of i), ii) and iii). He accepted that it was not open to the Tribunal to make the findings of discrimination that it had done in respect of the Dignity at Work Panel and the comparison with the handling of Gillian Cartwright's complaint.
41. The Tribunal's approach in each case is shown by what they state at paragraph 107:

"We were required to go through a two stage process. The first stage required Mrs Hewage to prove facts from which we could, apart from the section, conclude in the absence of an adequate explanation that the Respondent had committed or is to be treated as having committed, the unlawful act of discrimination against the Claimant. We were mindful in considering this issue that we were required to make an assumption at this stage, the purpose being to shift the burden of proof at the second stage so that, unless the Respondent provides an adequate explanation, the Claimant will succeed. It would, of course, be inconsistent with the assumption that we had to make to take account of any adequate explanation by the Respondent at the first stage."

42. In the case of what is referred to as the "Professor Forrester" "incident", the Tribunal then proceed to refer to Professor Forrester being a white British male, to him being a consultant at Aberdeen Royal Infirmary "at the relevant time", to the Claimant being an Asian female, to her being a consultant at Aberdeen Royal Infirmary "at the relevant time" and state, at paragraph 107:

"In view of the similarities in their respective positions and the difference in treatment which we detailed above, we were satisfied that Mrs Hewage had proved such facts. In our view she had established a prima facie case of both sex and race discrimination which meant that the second stage came into effect which required the Respondent to prove that it did not commit, or is not to be treated as having committed, the unlawful act."

43. The treatment referred to by the Tribunal was that they said there were marked differences in how the Respondents dealt with their respective complaints. At paragraph 106, they state:

"Mrs Strachan was removed as Service Manager to Professor Forrester's Department and replaced. Professor Forrester was thereafter re-appointed Head of Service. Despite Mrs Hewage making repeated requests over a lengthy period that Mrs Strachan should be replaced as Service Manager to her Orthodontics Department, the Respondent refused to remove her as they had done when faced with the same request from Professor Forrester."

We observe that on the Tribunal's findings, there were just two occasions when the Claimant requested that Helen Strachan be removed. One was on 24 June 2004 and one was on 20 August 2004.

44. Having found that the "Igen" second stage had been reached, the Tribunal then turned to consider a series of submissions that had been made on behalf of the Respondents to the effect that Professor Forrester was not an appropriate comparator (para.108) and in the next paragraph state:

"We did not find this explanation at all convincing."

45. Still in the context of considering whether or not the Respondents had discharged the burden of proof that they had determined as having passed to them, the Tribunal add, at paragraph 109:

"We were satisfied ……..that this was a "like for like" comparison. The core issue was the deterioration in the relationship between a Consultant and Head of Service and the Service Manager which appeared to be irretrievable."

46. At paragraph 110, the Tribunal concluded that it was not "merely legitimate" but "necessary" for them to uphold the complaints of both race and sex discrimination. They have not given any separate consideration to the issues of sex and race.
47. The Tribunal's approach to their findings of discrimination in respect of the two other "incidences" which Mr Napier sought to support, both involving Dr Larmour, is of the same nature. They took no account of submissions for the Respondents that Dr Larmour was not an appropriate comparator at the first stage. They have not given consideration to those submissions until after they have found that the Claimant established a prima facie case of discrimination and thus, on the basis that the burden of proof had passed to the Respondents.

RELEVANT LAW

48. By s.1(1) of the SDA:

"A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if-

(a) on the ground of her sex he treats her less favourably than he treats or would treat a man…….."

Section 5(3) provides that a comparison of the cases of persons of different sex under s.1(1):

"must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."

49. These provisions are reflected in substantially similar terms in sections 1(1) and 3(4) of the RRA. Discrimination involves affording a person less favourable treatment i.e. less favourable as compared to someone whose circumstances were the same or not materially different (someone who could be a "hypothetical" comparator in the absence of an actual one) and doing so on the grounds of sex or race. The latter was said to be an objective test of causal connection (O'Neill v St Thomas More School [1997] ICR 33) which ought to be approached by the Tribunal in a "simple , pragmatic and commonsensical" manner (O'Neill at p.43F). Since then, the importance of considering the reason why a person has received less favourable treatment has been emphasised as has the need to recognise that ascertaining the "reason why" is a question of fact and, accordingly, a subjective test: see, for instance, Chief Constable of West Yorkshire Police v Khan [2001] 1 WLR 1947 at para. 29.
50. In relation to both the SDA and the RRA, the Claimant would have suffered unlawful treatment for which the Respondents were liable if she was discriminated against on grounds of sex or race by any of their employees in the course of their employment. The burden of proof is on the Claimant to prove that she has been discriminated against. Given the provisions of s.63A, she could seek to discharge that burden by proving:

" … facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the Respondent –

has committed an act of discrimination or harassment against the complainant which is unlawful by virtue of Part 2, …"

because if she did so, the Tribunal was obliged to uphold her complaint:

" … unless the Respondent proves that he did not commit ………that act."

51. Similar "burden of proof" provisions in relation to race discrimination claims are to be found at s.54A of the RRA. Working through this "burden of proof" process is now regularly referred to by reference to it being a two stage test.
52. The essence of the issue that has to be addressed in a claim such as the present, and addressed not only at the second of the "Igen" stages but at the first one as well, was encapsulated in paragraph 10 in the case of Zafar v Glasgow City Council [1998] IRLR 36, Lord Browne Wilkinson commented:

"Although at the end of the day s.1(1) of the Act of 1976 requires an answer to be given to a single question (viz has the complainant been treated less favourably than others on racial grounds?), in the present case it is convenient for the purposes of analysis to split that question into two parts – (a) less favourable treatment, and (b) racial grounds …".

As the Tribunal rightly noted, the Court of Appeal gave guidance as to application of the burden of proof provisions in the case of Igen. The Court of Appeal stressed, however:

" … employment tribunals must obtain their main guidance from the statutory language itself."

53. There has been further discussion of what a claimant requires to do to achieve the shifting to the respondent of the burden of proof. Of particular relevance to the present case is the judgment of the Court of Appeal in the case of Madarassy v Nomura International plc [2007] ICR 867. The claimant there sought to argue that the burden of proof would shift if a claimant simply proved a difference in status and difference in treatment. The following passages in the judgment of Mummery LJ are of note:

"52 … Mr Allan is obviously right in saying that the subsection does not require Ms Madarassy to prove a "conclusive case" of unlawful discrimination. She only has to prove facts from which the tribunal "could" conclude that there had been unlawful discrimination by Nomura, in other words she has to set up a prima facie case.

…

54. I am unable to agree with Mr Allan's contention that the burden of proof shifts to Nomura simply on Ms Madarassy establishing the facts of a difference in status and a difference in treatment of her. This analysis is not supported by Igen v Wong ... nor by any of the later cases in this court and in the Employment Appeal Tribunal. It was not accepted by the appeal tribunal in the above mentioned cases of Network Rail Infrastructure [2006] IRLR 865, para 15 and Fernandez (paras 23 and 24 and by the Court of Appeal in Fox [2006] …

…

56. The court in Igen v Wong … expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the tribunal conclude that the Respondent "could have" committed an act of unlawful discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal "could conclude" that, on the balance of probabilities, the Respondent had committed an unlawful act of discrimination.

57. "Could … conclude" in section 63A(2) must mean that "a reasonable tribunal could properly conclude" from all the evidence before it. This would include evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the Respondent contesting the complaint...the tribunal would need to consider all the evidence relevant to the discrimination complaint; for example, evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the complainant were of like with like as required by section 5(3) of the 1975 Act; and available evidence of the reasons for the differential treatment."

54. It is also plain from what was said in the case of Shamoon v Chief Constable of the RUC [2003] ICR 337 that it will not be enough simply to show that there was a difference in status and a difference in treatment; there, their Lordships made it clear that no inference of discrimination could fairly be derived from the difference in treatment meted out to the appellant (who was a chief inspector) and to two other chief inspectors, looking purely at the difference in treatment and that they were of the same rank. There were other factors that required to be taken into account namely that the male chief inspectors did not have complaints pending against them whereas the Claimant did. Similarly, in the case of Network Rail Infrastructure Ltd v Griffiths – Henry [2006] IRLR 865, where a black woman had not been successful in a competition for posts in a redundancy situation whereas five white male colleagues were successful, Elias J commented, at paragraph 15:

"It is submitted that the mere fact that she is a black woman and the others are white men and that she was not appointed could not constitute sufficient primary facts to justify an inference of discrimination. We would accept that those mere facts would not do so."

and then went on to observe that, in that case, there was in fact rather more that was relevant at that stage, namely that five of the claimant's colleagues were appointed out of a total of eight, that all candidates including the claimant were equally well qualified and that there had been defects in the assessment of the claimant by the employee of the respondents who had made the selection of candidates which had been the subject of criticism by the Tribunal.

55. As Mummery LJ alludes to in the above passage from Madarassy, one of the things that a complainant requires to prove before she can establish a prima facie case which shifts the burden of proof is that she has suffered less favourable treatment and to do so she requires to draw a like with like comparison. It is fundamental that in making comparisons for the purpose of seeing whether an inference of discrimination can properly be drawn, that like is compared with like. Care requires to be taken to see to it that that is done. In a case such as the present one, that means that the Claimant must compare herself to an actual "like for like" comparator, or with a hypothetical "like for like" comparator. The Claimant here sought only to present an "actual" comparator case, though. There was no suggestion that a hypothetical comparator could or should be constructed. In the light of counsel's submissions, we should stress that it is a matter of the Tribunal being able properly to draw an inference, not as was suggested by Mr Napier, a prima facie inference, which could be seen as indicating somewhat lesser concept.
56. Another matter which the above passages make clear is that when considering whether or not the claimant has established a prima facie case, the tribunal should look at all the evidence. That that is what the Court of Appeal considered was the correct approach is spelt out in subsequent paragraphs:

"65. There has been a debate in the cases and on this appeal as to what evidence from the Respondent is relevant at the first stage. It was observed in Igen v Wong, para.24, that the language of section 63A(2) points to the complainant having to prove facts, but there is no mention of evidence from the Respondent. The court added that 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. …

66. We should take this opportunity to consider the relevance of the Respondent's evidence at the first stage. This point has been contentious in the appeal and is of practical importance.

67. As Elias J pointed out in Laing v Manchester City Council [2006] ICR 1519, the evidence from the Respondent at the first stage goes wider than the particular examples given in Igen v Wong, para.24. It was argued in Laing v Manchester City Council para.56, that the only material that the tribunal can consider at the first stage is the evidence adduced by the complainant together with any evidence adduced by the Respondent which assists the tribunal in reaching the conclusion that a prima facie case has been made out. It was argued that the tribunal must not consider, however, any other evidence, such as evidence from the Respondent pointing the other way and tending to undermine the complainant's case.

68. In Laing for example, the key factor which caused the complainant to fail at the first stage was the Respondent's evidence that the complainant was indiscriminately treated by the alleged discriminator in the same way as all subordinate employees…the complainant objected that this was part of the Respondent's "explanation" which, in accordance with section 63A(2) had to be ignored at the first stage.

69. The Employment Appeal Tribunal (Elias J President) rightly rejected the complainant's submission.

…

72. Such evidence from the Respondent could, if accepted by the tribunal, be relevant as showing that, contrary to the complainant's allegations of discrimination, there is nothing in the evidence from which the tribunal could properly infer a prima facie case of discrimination."

57. We also note that the Court of Appeal in Madarassy rejected a submission that at the first stage the tribunal should proceed on the basis of a presumption of a lack of adequate
    

explanation. At paragraph 77, Mummery LJ said:

"In my judgment, it is unhelpful to introduce words like "presume" into the first stage of establishing a prima facie case. Section 63A (2) makes no mention of any presumption."

58. That is a passage that the tribunal in the present case would appear to have overlooked, given their comments in paragraph 107 about being required to make an assumption at the first stage.
59. There is another matter that the complainant requires to address at the first stage; the reason why she received less favourable treatment. As Lord Nicholls put it, in the case of Shamoon v Chief Constable of the RUC [2003] ICR 337, the reason why is an issue which is "intertwined" (para. 8) with the issue of whether or not the complainant has received less favourable treatment. Both issues co-exist, however, and the burden of proof will not pass to the respondent without the complainant addressing both and satisfying the Tribunal that facts have been established from which it could properly conclude that she has not only received less favourable treatment than her chosen comparator but that that less favourable treatment has been meted out on one of the proscribed grounds, in this case, race and / or sex.

SUBMISSIONS FOR RESPONDENTS

60. We have already referred to Mr Truscott's submissions regarding the question of whether or not discriminatory dismissal was an issue properly before the Tribunal. Regarding other matters, he said that the Respondents accepted that they had not done as well by the Claimant as they could have done – hence their acceptance of unfair constructive dismissal - but they did not accept that they had discriminated against her in any respect. The Tribunal had erred in their findings in that respect. Their error was a fundamental one. In considering whether or not the Claimant had established facts from which discrimination could properly be inferred, they had failed to compare like with like, as they were obliged to do. Comparing the Claimant with Professor Forrester was not comparing like with like. Comparing her with Dr Larmour was not comparing like with like. It was not enough that there were similarities identified. They were quite different. Different individuals had been involved in the decision making in each case and the circumstances were not comparable when properly examined. The burden of proof provisions had not relieved Claimants of the need to establish an appropriate comparison. The Tribunal had not set out any delineation of an appropriate comparator, as would have been expected. They had not identified what was important for comparison purposes. The fact of the Claimant being a female, the comparator being a male and their both being consultants was not enough. There had been no attempt by the Tribunal to build up other characteristics that showed that the comparison was an appropriate one. Without an appropriate comparison, stage 1 of the process could not be achieved. He referred to the discussion at paragraphs 15 – 22 of the Network Rail Infrastructure Ltd case. He also pointed to the need for a Tribunal to look at all the evidence at the first stage. What the Tribunal had done was they had found the first stage to have been passed, with the burden of proof passing to the Respondents, and only then looked at the question of whether like for like comparisons were being used. At the first stage, they had excluded consideration of the evidence showing the differences between the Claimant and the comparators, regarding it as the Respondents' explanation for the difference in treatment. That was wrong.
61. Mr Truscott also submitted that the Tribunal had erred in failing to separate out their considerations of race discrimination and sex discrimination at the first stage. The two had been lumped together without thought as to why discrimination in each respect could properly be inferred.
62. Mr Truscott submitted that in the circumstances, the appeal should be allowed and the claim dismissed. In the event that we were not satisfied that what now remained of the Claimant's case ought to be dismissed then fairness dictated that there should a remit for a rehearing. The remit should be a freshly constituted Tribunal in the light of the trenchant views expressed by the Tribunal.

SUBMISSIONS FOR CLAIMANT

63. Mr Napier began by accepting that the Tribunal's analysis was, as he put it, flawed in part. The flaws were, however, relatively unimportant in light of the overall findings in fact. They were, he submitted, sufficient to satisfy both stage 1 and stage 2 of the "Igen" test. He submitted that two questions arose: Was there a basis for drawing a prima facie inference of discrimination? and: Had the Respondents put forward an explanation which cancelled out that inference? In the event that we did not agree that the findings in fact were enough to support the conclusion of discrimination, there should a remit to the same Tribunal, which failing to a fresh one.
64. The flaw in the Tribunals' reasoning that was conceded by Mr Napier was that the Tribunal did not approach the question of whether or not the dismissal was discriminatory in the right way. That was a concession that was, in our view, well made although, as we have indicated, the Tribunal should not have been addressing the question of whether this was a case of discriminatory dismissal at all.
65. We have already referred to the extent to which Mr Napier indicated that he did not seek to support the Tribunal's findings of discrimination.
66. In support of his submission that the findings of fact justified a conclusion of discrimination, Mr Napier referred to the case of Bahl at paragraph 85, where it was commented that the Tribunal requires to consider the totality of the facts, to the case of Chattopadhyay v Headmaster of Holloway School [1981] IRLR 487 for the proposition that it may be appropriate to consider events that postdate the alleged acts of discrimination, to the passage at paragraph 10 in Zafar, to the case of Khan for the importance of looking, in the evidence, for the reason "why" the Claimant received less favourable treatment and also for the need to look, at the first stage, at another person whose relevant circumstances are the same or not materially different from the Claimant.
67. Mr Napier recognised that the Tribunal had not distinguished between sex discrimination and race discrimination but that did not, he said, matter so far as reaching the stage one conclusion was concerned, a submission which we consider is probably correct so long as the Tribunal is satisfied that it can properly infer that there must have been discrimination of one sort or the other. The two aspects would have to be separated out at the second stage and when it came to compensation but it was acceptable, at the stage of making the prima facie inference, to take the two together.
68. Turning to the facts of the case, Mr Napier submitted that the Respondents' actions in removing Professor Forrester's department from Helen Strachan's area of responsibility could be contrasted with their inaction and procrastination following the Claimant having complained about her in December 2003 and having sought her removal from orthodontics in June 2004 and thereafter. He submitted that that was significantly different treatment that was less favourable. The role of this Tribunal was, he submitted, limited. The Employment Tribunal had rejected the argument that the circumstances of the two consultants were different. There was limited scope for interference in that conclusion. He referred, in that respect, to the case of Shamoon, at paragraph 17 in the judgment of the Court of Appeal of Northern Ireland. The test was whether no reasonable person would have ignored the particular facts relied on. Further, this was not a perversity appeal. It was presented as an appeal in respect of error of law by the Tribunal and the Respondents' case of error of law was not a good one.
69. Mr Napier submitted that there was also additional material which enabled the Tribunal to draw the inference of discrimination. He made reference, in that regard, to the facts surrounding the two "Mr Larmour" "incidents". Regarding the findings of fact relating to the other "incidences" (which Mr Napier did not seek to support as amounting to acts of discrimination) he submitted that they were, nonetheless, relevant because the Claimant's case of discrimination involved looking at her whole treatment. In that regard he relied on thirteen separate matters: the less favourable treatment of the Claimant as compared to Professor Forrester, the finding that he was an appropriate comparator, the less favourable treatment of the Claimant as compared to Mr Larmour regarding the appointment panel matter, the finding that Mr Larmour was an appropriate comparator, the less favourable treatment of the Claimant regarding the giving of support by senior management as compared to that given to Mr Larmour, the "volte face" by Dr Dikhjuisen regarding taking forward the Dignity at Work report recommendations, his failure to do anything regarding a report which had failed to do its job, his inability to explain why he failed to do so, the failure of the Dignity at Work panel to do its job properly, the failure of that panel to follow its own practice, the failure of the Respondents to find that Helen Strachan's behaviour towards the Claimant was unacceptable (as it had done in the case of Gillian Cartwright), the failure of the Respondents to call a witness from the Dignity at Work panel to explain its actions and their failure to call Mr McLay as a witness. It was, he said, appropriate to look at all these factors for stage 1 purposes. They amounted to an overwhelming case to support the requisite prima facie inference.
70. Mr Napier said that he was conscious that there might be cause for concern at the appropriateness of using Professor Forrester and Mr Larmour as actual comparators. However, even if they were not appropriate actual comparators, they could be hypothetical comparators. He referred, in that regard, to the case of Ashan v Watt [2008] IGLR 243. Thus, if the choice of comparator by the Tribunal was wrong, the case should not be dismissed. It might be possible for another Tribunal to approach matters by constructing a hypothetical comparator. It was not for this Tribunal to substitute its own decision. He referred, in support of that submission to Porter v Oakbank School [2004] Scot CS 70 and to the case of LBC v Miah [2009] UKEAT 0031/08/2601.

DISCUSSION AND DECISION

71. To discharge the burden of proof that the relevant statutory provisions placed on her, the Claimant required to establish facts from which the Tribunal could properly infer that she had been the victim of discrimination. Specifically, that required her to establish that she had received less favourable treatment on grounds of her sex and on grounds of her race as compared to a person whose circumstances were the same as hers or not materially different. As is plain from the statutory provisions, the Igen guidance and the discussions in recent authorities such as Madarassy, if the Claimant does not do so then there is no question of the Tribunal going on to ask whether the Respondent has proved that he did not commit an act of discrimination. That question does not arise if there is no prima facie case of discrimination to answer.
72. The Claimant's case regarding the instances of discrimination which Mr Napier sought, on her behalf, to support, was that a direct comparison could be drawn between her and (a) Professor Forrester, and (b) Mr Larmour. She relied on them as actual comparators. It was not her case that a hypothetical comparator should be constructed whether under reference to the facts relating to them or under reference to other facts in the case. The Tribunal in the present case thus required, when considering whether or not the Claimant had discharged the "stage 1" burden of proof, to determine whether or not Professor Forrester and Mr Larmour were "like for like" comparators. To make that determination, the Tribunal required to consider all the evidence and the submissions on the issue of whether or not what was being relied on was a like for like comparison or not.
73. Having considered the Tribunal's reasoning, in particular the passages from paragraph 107 onwards, to which we refer above, the majority of us are satisfied that the Tribunal has fallen into error. Firstly, it refers to being required, at the first stage, to make an assumption. They were not required to do so. We have already referred to the comments by Mummery LJ in Madarassy at paragraph 77 in that regard. Even less is it the case that the Tribunal requires to make an assumption for the purpose of shifting the burden of proof as this Tribunal misapprehended as being the situation, at paragraph 107. Secondly, the Tribunal looked, at its first stage considerations, only at limited aspects of the relevant evidence, namely that the Claimant and the comparators, who were consultants and heads of service were, on the one hand a female of Asian origin and, on the other hand, white British males had in their view, received different treatment. On that comparison alone, they found that the Claimant had satisfied the requirements of the first stage and the burden of proof therefore passed to the Respondents. However, the first stage requirement of establishing a prima facie case cannot be made out simply by establishing the facts of a difference in status and a difference in treatment, as discussed in the authorities to which we have referred (Madarassy; Shamoon) and those considerations do not really go much further than that.
74. Further, nor is the first stage to be regarded as having been passed by considering only part of the evidence and submissions. It is clear that the Tribunal, in what appears to be a misunderstanding of the effect of the burden of proof provisions, closed their minds to the evidence relied on by the Respondents as showing that Professor Forrester and Mr Larmour were not appropriate like for like comparators and to the submissions made on their behalf in respect of that matter. They treated the Respondents' case that these men were not appropriate comparators as a matter that only required to be considered after the burden of proof had passed to them. That was incorrect. The appropriateness of comparing the treatment afforded to the Claimant with that afforded to Professor Forrester and Mr Larmour was a matter to which careful consideration had to be given, at the first stage and bearing in mind all the evidence and the submissions for both parties on the issue of like for like comparison when asking whether or not the Claimant had discharged the initial burden of proof. The Tribunal did not do that. The question they in fact addressed on the matter of like for like comparison was not addressed by them until the second stage and was a different one, namely whether or not what the Respondents pointed to on that matter amounted to a convincing explanation for discrimination which, by that stage, they had inferred had taken place. That was the wrong question. Their error in this respect was fundamental and, as a result, their finding of discrimination as regards the Professor Forrester matter cannot stand. We have already indicated that we do not consider that it was open to the Tribunal to consider any allegations of discrimination other than that involving him but even if it had been, the other findings which Mr Napier sought to support, namely those involving Mr Larmour, also fall to be regarded as suffering from the same fundamental flaw as the Tribunal's approach to them was the same. Again they regarded the Respondents' case that Mr Larmour was not an appropriate comparator only at the second stage, as though it was being advanced as an adequate explanation in the light of a prima facie case already having been established. However, once again, the Tribunal had failed to consider all the evidence and the submissions made regarding the appropriateness or otherwise of using Mr Larmour as a comparator at the first stage.
75. Thus, the result was that the Tribunal failed to work its way through stage 1 of the Igen stages adequately or sufficiently. The majority of us consider that it was not entitled, on the basis that it proceeded, to conclude that they could properly infer that unlawful discrimination had occurred.
76. We should add that the majority of us do not accept, as Mr Napier seemed to suggest, that even in the face of the error that we identify above, we could be satisfied, given the findings in fact, that the conclusion of a prima facie case of discrimination was a sound one.
77. We will, accordingly, set aside the judgment of the Tribunal insofar as it finds that the Respondents discriminated against the Claimant on grounds of sex and race.
78. We turn then to consider whether the discrimination claims falls to be dismissed or whether there should be a remit. That depends on whether it was open to the Tribunal to find that "like for like" comparison was being made. Had the Tribunal done as it should have done and asked itself, at the first stage, whether or not, in relying on what had occurred in respect of Professor Forrester and Dr Larmour, the Claimant was relying on occurrences in respect of persons whose circumstances were the same or not materially different from the Claimant's, the majority of us consider that it would not have been open to them to reach a conclusion that the comparison being drawn was between persons in relevant circumstances which were the same or not materially different.
79. We so observe, noting that, regarding Professor Forrester, the differences between the two sets of circumstances were substantial. Professor Forrester was Head of Service of a much larger department who had agreed to take up that post to restore order, he resigned the post in a state of some anger immediately upon discovering that Helen Strachan had made serious unfounded allegations that went to the heart of his professional responsibility, no-one else applied for the post after had had resigned from it and he made it quite clear that he would only take it up and remain in it if Helen Strachan was not in the position of Service Manager of the department. The solution whereby she was removed was a pragmatic one arrived at by three individuals two of whom were not involved in receiving the Claimant's complaints about Helen Strachan and it was to do with getting him back into post as Head of Service in circumstances where he would remain in post. As compared to his circumstances, the Claimant, prior to her resignation from the post of Head of Service did not request Helen Strachan's removal; the Tribunal's finding goes only as far as being that she said she would have to consider her position if Helen Strachan remained in post. There is no finding that her resignation, when it occurred weeks later, was made under reference to Helen Strachan or the Respondents' approach regarding her, at all. Unlike the position in Professor Forrester's department, a new Head of Service was available to take the Claimant's place and it was not until six months later, on 24 June 2004, that she asked for Helen Strachan to be removed as Service Manager for the orthodontics department. By that time, Dr Larmour was the Head of Service. The situation was not one where the respondents required to secure an appropriate person as Head of Service for orthodontics. The request was not made by the person who was Head of Service. Nor was it one where they were dealing with an aggrieved outburst and immediate resignation directly related to particular conduct by Helen Strachan as had occurred in the case of Professor Forrester.
80. Further, even if the Tribunal had been entitled to consider the allegations regarding the Claimant's treatment as compared to that afforded to Mr Larmour, the majority of us consider that, again, had it asked itself the correct question, it would not have been open to it to conclude that like was being compared with like or indeed that, as regards the presence of a consultant on the nursing appointment panel, Mr Larmour received any better treatment than the Claimant did at all. As is evident from the facts found regarding that matter, Sister Moira Munro had suggested to the Claimant that there be a meeting to discuss the matter. She did not agree with the view that there should be a consultant present at the interviews but was evidently prepared to discuss it at a meeting. By the time of the meeting, Mr Larmour had been appointed and he attended along with the Claimant. It remained Sister's Munro's position at that meeting that she did not think it appropriate to have a consultant on the interview panel. Mr Larmour's presence at the meeting did not alter that. What she did accept was that, to compare the departmental practice with the situation in the maxillo-facial department (as she wished to do), it was appropriate to seek their views. There is no suggestion that it was at Mr Larmour's behest that she did so. In fact it is evident that she was expecting the approach to the other department to be made by the Claimant. In the event it was made by Mr Larmour and it was found that the other department did actually agree to a consultant presence on the panel. Mr Larmour relayed the fact of that interdepartmental agreement to Sister Munro and in the light of it she agreed to the limited trial referred to in her email of 12 December. The circumstances surrounding that agreement by Sister Munro, namely the joint interdepartmental view on the matter, do appear to be rather different from those pertinent to the Claimant's requests at an earlier stage, which did not, on the findings in fact, involve any such interdepartmental approach.
81. As regards the supportive comments made to Mr Larmour, the majority of us do not consider that the Tribunal could have found that there was a like for like comparison. He was new to the post of Head of Service and difficulties with the Service Manager had emerged. On the Tribunal's findings, that is the context in which the supportive comments referred to were made. There are no findings at all as to what support was given to the Claimant when she was new to the post or of what the position was with the Head of Service at that stage. Further, all that was relied on were two comments. There are no findings at all as to what, if anything, the Respondents would have done if Mr Larmour had asked them to take action with regard to Helen Strachan. There were no findings that he made such a request. Nor did the Claimant seek to suggest that any positive action was in fact taken in favour of Mr Larmour. No conclusion could be reached as to what would have happened if Mr Larmour had looked for positive action regarding Helen Strachan to be taken in his favour. The comparison the Claimant sought, it seems, to draw, was not with the absence of a supportive comment or two but with a lack of positive action in her favour, in respect of the difficulties she experienced with Helen Strachan.
82. In the judgment of the majority of us, having set aside the decision of the Tribunal regarding discrimination, the appropriate course is to dismiss the Claimant's claims of discrimination. The basis on which the Tribunal found that the onus of proof had shifted was erroneous, as we have explained. The factual material available to the Tribunal was not such as could have provided the basis for them properly to infer that discrimination had occurred because like was not being compared with like. The Claimant chose to present her case on the basis that she could compare herself to actual comparators. Hers was not a hypothetical comparator case. She did not invite the Tribunal to look at how a hypothetical comparator would have been treated. She confined herself to a case that she should be compared to actual comparators but the actual comparators chosen by her did not suffice for the purpose of discharging the burden of proof that lay on her. That being so, as is explained at point (2) in the Igen guidance, the Claimant's case must inevitably fail.

Minority View

83. Mr Thomson disagreed with the majority. He would refuse the appeal. In his opinion the Employment Tribunal were entitled to treat Professor Forrester, Mr Larmour and Ms Cartwright as valid comparators. They made clear and unambiguous findings in fact and did not accept the Health Board's explanation for how Dr Hewage had been treated. This was not a perversity appeal and this Tribunal should not interfere with their decision on evidence: Yeboah v Crofton. In his view the Tribunal decision complies with the criteria in Meek v City of Birmingham Council and other authorities and their reasoning should not be trawled through in order to overturn that decision.
84. There were in his opinion sufficient overall findings in fact to overcome any flaws in the Tribunal's analysis and satisfy both stage 1 and stage of the "Igen" test. If he was wrong in this he would remit this issue to the same Tribunal, which failing to a fresh one.

DISPOSAL

85. We will, accordingly, pronounce an order upholding the appeal and dismissing the Claimant's claims of discrimination.