United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr PHILIP MEAD (of Counsel) Instructed by Legal Services London Borough of Camden Camden Town Hall Judd Street London WC1H 9JE
For the Respondent	MS HARJIT GREWAL (of Counsel) Instructed by: Messrs. Johns & Saggar Solicitors 233a Kentish Town Road London NW5 2JT


 


SUMMARY

RACE DISCRIMINATION: Inferring discrimination / Burden of proof

The Claimant was made redundant after being placed in a pool of one. He brought proceedings alleging race discrimination and victimisation. In finding for him the Tribunal assumed a hypothetical comparator of a different race but did not consider how such a comparator would have been treated. It merely assumed that because there was a hypothetical comparator the onus of proof had passed and then found the onus had not discharged. The Tribunal also assumed the 'reverse burden' applied to the victimisation claim.


 


HIS HONOUR JUDGE REID QC

1. The Respondent Council appeals against a judgment of the London Central Employment Tribunal (Chairman Employment Judge Miss Lewzey) entered in the register on 19 October 2007. The Claimant's claim that he had been unfairly dismissed was upheld and there is no appeal in respect of that cause of action but the Council does appeal against the findings against it in relation to the Claimant's claims of discrimination and harassment on grounds of race and victimisation by reason of a protected act on grounds of race.
2. The essence of the Council's appeal in relation to the race discrimination claim is that the Tribunal misunderstood and misapplied the two-stage test in respect of the burden of proof applicable to race discrimination claims under section 54A of the Race Relations Act 1976. The parties are agreed that the appeal in relation to the harassment issue stands or falls with the race discrimination appeal. So far as the victimisation appeal is concerned the Council says that the Employment Tribunal erred in applying the same burden of proof test as is applicable to discrimination claims when the burden of proof does not transfer in the same way when victimisation on the grounds of race is alleged.

The facts

3. The Claimant is of Asian Bangladeshi origin He was employed by the Council from 30 July 2001 until 31 October 2006, commencing his employment as a Youth Offending Team ("YOT") member/education officer. There were two teams within the YOT, the Early Intervention Team, which dealt with young people not known to the court, and the Reduction Team, which dealt with young people who were known to the court. Initially he was managed by Ms Williams in the Reduction Team. From March 2003 he moved to the Early Intervention Team managed by Ms Johnson.
4. Ms Martins joined the Respondent in July 2003 as Principal Officer for the YOT. She changed the Claimant's line management back to Ms Williams, who is African Caribbean. He had irregular supervisions with Ms Williams, but on 5 March 2004 he had an appraisal with Ms Williams when three training needs were identified to support achievement of targets, including education legislation and processes.
5. At this time there were ongoing concerns on the part of Ms Clark, who was the School Inclusion Team Manager, about the Claimant's understanding of educational provision and legislation. On 13 May 2004 a supervision of Ms Williams by Ms Martins took place. This referred to concerns in relation to the Claimant's communication skills and the need for him to have elocution lessons. On 29 July the Claimant made a presentation on school attendance. On 6 August a further supervision of Ms Williams by Ms Martins took place at which it was recorded that David Fourmey would look at elocution lessons for the Claimant, and on 11 August he had supervision with Ms Williams where Ms Williams commented on the Claimant's presentation and advised of training/personal development opportunities such as speech therapy to assist with pronunciation.
6. On 8 September 2004 there was a supervision that Ms Williams had with Ms Martins at which Ms Williams expressed concerns about the Claimant's sick leave and poor performance. On 8 December 2004 there was a further supervision of Ms Williams by Ms Martins at which Ms Williams expressed further concerns about his performance. Further supervisions took place of Ms Williams by Ms Martins on 12 January, 9 February and 9 March 2005 at which his performance was discussed but there is no evidence that any action plan was implemented.
7. On 21 March 2005 the Claimant presented a grievance against Ms Williams to Ms Doran, the Assistant Director of Children and Families Division of Camden Social Services. It catalogued incidents between the Claimant and Ms Williams from July 2004 until 2005. He complained that Ms Williams' behaviour was racially motivated.
8. On 31 May 2005 Ms Martins wrote to Ms Riddel expressing concern about the Claimant's performance. In May 2005 Mr Collins became the Claimant's line manager at the request of Ms Martins. Also at around this time Ms Riddel transferred the Claimant to the Medburn Centre which was where Behaviour Support Services were located. Previously he had worked at Gospel Oak which is where the YOT was based.
9. Ms Sassienie, an Educational Psychologist, was seconded to the YOT in May 2005 to assess the viability of learning needs assessments carried out by the YOT. The Claimant invited her to accompany him to a meeting with one of the young people. At this meeting he used an off the shelf assessment tool which had been obtained some years earlier by another manager. Ms Sassienie reported that the Claimant had difficulty reading some of the words in the assessment, though it appears that Ms Sassienie did not tell him of her concerns.
10. On 23 June 2005 the Claimant attended a meeting with Mr Collins, Ms Riach (the Manager of the Behaviour Support Service) and Ms Riddel at which he was told that he was being referred for an independent assessment. It was agreed that he would be referred to Dr Estelle Doctor. She is a Psychologist who works with adults.
11. On 6 July the instruction was sent to Dr Doctor. The relevant paragraphs read:

"A recent meeting with a child, observed by an Educational Psychologist within the service, revealed that the Education Officer could not read the words correctly and did not know their meaning. You will appreciate that this is a serious matter making all the assessment work he has done with young people unsound. In normal conversation he displays limited vocabulary and poor pronunciation making it difficult to understand his utterances. I have also observed some receptive language difficulty with him to the extent that he does not consistently respond accurately to the structure of questions where the information is beyond common functional requests.

English is not this person's first language and there may be some EAL issues. I do not think it is appropriate for him to be assessed by a colleague on so sensitive a concern and my wish is for a neutral party to carry out the work. I have spoken to my colleague about this and have said that I will commission an independent assessment to which he has agreed."

12. On 20 July 2005 the outcome of the Claimant's first grievance was made available by a letter from Ms Doran. She upheld the grievance in one small particular relating to the timing of the presentation but dismissed it in respect of everything else. He had a right of appeal which he did not exercise.
13. On 21 July 2005 the Claimant had supervision with Mr Collins and Ms Riach (page 26 of the bundle). He wanted to know how he would be assessed. He understood that it was on his ability to administer a literacy assessment. Miss Riach said that it was broader then this. The Claimant asked for the nature of the independent assessment to be put in writing. On the same date 21 July Ms Riddel sent an e-mail to the Claimant saying that the doctor would look at his written and oral communication skills. On 25 July he sent an e-mail to Ms Riddel in which he said that the independent assessment was an extreme measure, that Ms Sassienie had never seen his written communications and asking Ms Riddel to confirm that the commission of an independent assessment was standard procedure. He also stated that he was ready to attend the assessment. Ms Riddel replied on the same day that the assessment was of his skills, as a duty of care was owed both to him and to the young people he worked with, but the reply omitted any answer to the question as to whether this was standard procedure.
14. At his supervision on 26 July by Mr Collins, the Claimant expressed his concern at working with Ms Sassienie. On 11 August the initial report of Dr Doctor, was made available and a summary of her findings was sent to the Claimant.
15. On 6 September in supervision, the Claimant said that he did not wish to visit schools with Ms Sassienie but would rather visit them with Mr Collins. On 12 September Ms Riddel sent an e-mail to Ms Berry, a Head Teacher, copied to internal members of staff, in which she said:

"There is a member of staff who is paid out of the BSS budget and who is located as an education worker in the YOT with whom we are following competency procedures. Recent assessment findings indicate that he does not have the skills required to carry out his current duties and while we could send him home on full pay while the process moves ahead we have decided to go down the route of alternative duties for him to ensure that some youngsters get something from Camden Council taxpayer's money."

16. On 12 September the Claimant was put on a performance improvement plan by Mr Collins. There follows an exchange of e-mails between Ms Riddel and Dr Doctor in which Ms Riddel asked Dr Doctor to amend various paragraphs of her report. At page 281 Ms Riddel writes:

"By this are you implying that he will be able to function effectively with support? What level of support would you have in mind. My preference would be that this sentence is removed".

Dr Doctor dealt with the matters that she was requested to by Ms Riddel and issued a revised report on 3 October. The overall tone of the report can be seen from the summary:

"General Intellectual Ability, General Language Ability and Working memory are all in the poor to very poor range. Overall Learning is average. Literacy related tasks: Speed of Single Word Reading is in the above average range while Reading Accuracy and Spelling are in the average range. Phonological awareness is in the very poor range while Writing is legible but stylistically immature. Factual and Inferential comprehension of complex print and aurally presented information are both limited."

The Claimant was sent a revised summary on 3 October.

17. On 14 October 2005 Mr Collins wrote to the Claimant inviting him to a performance improvement plan meeting at which a personnel manager would attend. The letter records what the initial investigation would focus on. A number of points were listed including the report prepared by Dr Doctor, specifically the conclusions around the Claimant's communication skills and recording and how this would impact on his ability to undertake and complete the tasks identified in his job description. Mr Collins held meetings with the Claimant on 11 and 18 November 2005 and wrote on 23 November enclosing the performance improvement plan. On 25 November the Claimant's Unison representative, Mr Walden, complained about the content and evidence for the matters in the performance improvement plan.
18. On 30 November the Claimant issued a grievance letter against Mr Collins stating that he believed that continuous harassment was due to his race. On 9 December Mr Collins replied to Mr Walden setting out the individual points and refuting the assertion that the whole process was flawed. On the same day Mr Collins wrote to the Claimant saying that he found it deeply regrettable that the Claimant felt that he was the subject of harassment and saying that it was unclear why the Claimant felt he was singled out.
19. On 13 January 2006 there was a performance improvement plan meeting attended by Mr Collins, Mr Walden and the Claimant at which the issues raised were gone through and at which the Claimant said he felt he was being treated unfairly and bullied. On 17 February Mr Collins notified the Claimant that he was pursuing the performance issues under the Council's under-performance policy and procedure and invited him to attend a stage one meeting. The meeting took place on 3 March 2006. In that meeting the Claimant asserted that the issues raised against him were because of his race. On 14 March 2006 he appealed against the issue of the stage one under-performance warning by writing to Mr MacFarlane, the Head of Human Resources. On the same day he presented a grievance to Heather Shroeder, Director of Schools, Children and Families, relating to unfair treatment on the grounds of race. On 15 March there was an under-performance meeting. Two letters were sent on 21 March asking the Claimant to fill in a pro forma for his appeal and also for his grievance. He returned these on 29 March. Ms Satwat Rehman, Partnership Manager for EYDCP was appointed to investigate his grievance against Mr Collins. On 11 April Mr Collins notified him that he was no longer on the performance improvement plan, although the under-performance warning would remain on his file.
20. In May 2006 Ms Riddel and Ms Martins met and concluded that it was necessary to redefine how the YOT engaged with young people and to consider a restructure. By August 2006 it was proposed that the person best suited to assess suitability would be an Educational Psychologist and therefore the Claimant's post would no longer meet the requirements of the YOT. The proposal was driven by changes in legislation.
21. In August there was an exchange of e-mails about the Claimant's role and his fitness for it and on 25 August Ms Martins sent a revised job description and briefing paper to the Claimant with an invitation to attend an individual consultation. On 18 September an individual consultation meeting took place between the Claimant, with his union representative Mr Olulode, and Ms Martins and Miss Birkett of Human Resources. A second consultation meeting took place on 20 September. On 28 September 2006 a third consultation meeting took place. The Claimant accepted that he had plenty of opportunity to put forward his arguments in the consultation meetings and stated that his argument was with the process. He had an option to take an enhanced redundancy or for the Respondent to undertake an enhanced redeployment search in which case he would only be able to take basic redundancy payment. On 29 September 2006 a letter from Ms Martins to the Claimant set out the terms of redundancy.
22. On 9 October 2006 the Claimant complained to the Chief Executive, Ms Gibbs, and to a Councillor, Mr K Moffat. On 12 October 2006 he raised a grievance to Ms Martins about the restructuring but he failed to attend the final consultation meeting on 12 October 2006. On 20 October 2006 the Council wrote to the Claimant in relation to the restructure and enhanced redundancy payment saying that he must respond by 25 October 2006. A further letter dated 23 October 2006 to the Claimant from Mr G MacFarlane, Head of Human Resources, deleted his post. On 28 October 2006 the Claimant completed a formal grievance form. On 31 October 2006 a dismissal letter was sent. By a letter dated 10 November 2006 to Mr MacFarlane the Claimant accepted enhanced redundancy pay but stated that he had been forced into the position of accepting enhanced redundancy pay.
23. Thereafter on 27 November 2006 Ms Rehman invited the Claimant to a formal grievance meeting under Stage 1 of the Respondent's procedure in relation to his second grievance to take place on 14 December 2006. Ms Rehman dismissed the second grievance by her letter of 18 December 2006. On 9 January 2007 Ms J Rogerson, who was commissioned to investigate the third grievance, had an investigatory interview with the Claimant. She also interviewed Ms Riddel and Ms Martins and had telephone conversations with Mr Walden, Mr MacFarlane and Ms Doran. On 31 January 2007 Ms Y Stanley, Assistant Director of Partnership Strategy and Commission, invited the Claimant to a formal grievance hearing on 9 February 2007.On 20 April 2007 a grievance meeting took place.. The outcome was set out in the letter of 27 April which concluded that the deletion of the Claimant's post was not part of systematic harassment, nor was it racially motivated.

The Tribunal's decision

24. Following the termination of his employment the Claimant brought proceedings in the Employment Tribunal alleging unfair dismissal, religious discrimination, discrimination on the grounds of race, harassment and victimisation.
25. The Tribunal rejected his claims of direct discrimination, harassment and victimisation under the Employment Equality (Religion or Belief) Regulations 2003 but held that he had been successful in his claim of direct race discrimination under the Race Relations Act 1976 in relation to three of the eight points (one of the points on which he was successful was sub-divided into two) which he had raised. His claim for victimisation under that Act was successful on two of his points. The Tribunal held he had been unfairly dismissed by reason of redundancy and went on to award him £12,000 (including £2,000 aggravated damages) for injury to feelings and £9,790.40 loss of earnings. In addition there was interest awarded on those sums.
26. There is no appeal against the finding of unfair dismissal by reason of redundancy and nothing needs to be said about it.
27. On the subject of direct discrimination, the points on which the Tribunal upheld the Claimant's claim were as follows.

(1) [The Claimant's point 4(i), "the IQ test point"] "I was forced to undertake an IQ test on 27 July 2005 commissioned by the YOT and by Joan Riddel the Education Manager. The test was presented to me as a tool to help with training and development but was subsequently used to justify under-performance proceedings against me for which I received a formal warning".

(2) [Point 4(ii), "the excess monitoring point"] "Stuart Collins was excessively monitoring my work, attending meetings where he was not supposed to attend without discussing with me, writing to external agencies about my performance and recording items in supervision notes without discussing with me and then he was using these items against me."

(3) [Point 7, "the insult point"]:"On 9 August 2006 Joan Riddel insulted me by saying publicly that I was unfit for carrying out my work."

(4) [Point 8, "the deletion point"] "On 25 August 2006 Miss Rhonke Martins sent me a letter saying she would delete my post and appoint two psychologists in post. We appealed and submitted a grievance on 12 October 2006. The appeal was turned down and the grievance is still pending."

28. In dealing with these complaints the Tribunal set out s.1(1)(a) and s54A(2) of the Race Relations Act 1976 and referred to s.4(2)(c) . It then set out the revised Barton guidelines from the annex to Igen v Wong [2005] EWCA Civ 142 It went on to state its approach in these terms:

"Mr Miah has to show that the Respondent has committed the acts of less favourable treatment that he complains about. He has to show that he was less favourably treated than a real or hypothetical comparator. In the present case he relies on a hypothetical comparator. In order to determine these matters the Tribunal has to go through each of the detriments which are pleaded and also look at the position overall. We have to ask ourselves whether if there is less favourable treatment and difference in race, we could draw an inference and if that is the case then the burden passes and we have to consider the matter in the light of section 54A(2). There are also out of time issues in relation to some of these matters and we deal with these at a later stage." [Para 63]

29. The Tribunal never identified the attributes of the hypothetical comparator, beyond saying "so we can take that as a difference in race". Nor did the Tribunal at any point consider the question of whether there was "less favourable" treatment as opposed to treatment which was unfavourable (i.e. treatment which amounted to a detriment).
30. Dealing with the IQ test point the Tribunal said

"The IQ test was clearly a detriment and Mr Miah relies on a hypothetical comparator so we can take that as a difference in race. In these circumstances the situation is that we could draw an inference and therefore the burden must pass. We take into account that no-one else was required to attend an independent assessment or an IQ test. It was not part of the procedures. Ms Riddel never answered Mr Miah's request as to whether this was standard procedure. It was Ms Riddel who selected Dr Doctor and then asked the doctor to change her report before the main report was issued to Mr Miah. We are not satisfied that the Respondent did not commit the act. They have failed to provide an adequate explanation and therefore in relation to this first part of point 4 the complaint must succeed." [Para 68]

31. On the excessive monitoring point the Tribunal said:

"Again Mr Miah relies on a hypothetical comparator so the matter is one where we have to consider the Respondent's explanation." The matter was raised by Miss Sassienie and Mr Collins was a new manager for Mr Miah. He felt that he must monitor Mr Miah to see if he was under-performing, but the cause for the monitoring goes back to Mr Miah's accent and pronunciation. There were issues of under-performance and that was accepted by MrWalden, Mr Miah's trade union representative, but there was an increase in monitoring once Mr Miah had been moved to the Medburn Centre. Taken in conjunction with Ms Riddel's requests to other managers for information about Mr Miah's performance the Respondent was trying to build a case against Mr Miah. We do take into account Ms Riddel's e-mail of 12 September to Poppy Berry which appears at page 277 and we do not find the explanation put forward for this by the Respondent to be acceptable and in these circumstances the second part of point 4 succeeds." [Para 69]

32. On the insult point the Tribunal noted that

"Ms Riddel did make comments in an open e-mail which was copied to Mr Miah. This is a detriment and Mr Miah relies on an hypothetical comparator. The Respondent relies on the same explanation as they have put forward for the report of Dr Doctor which we have already rejected and in these circumstances the Respondent has not provided an adequate explanation for point 7 which therefore succeeds."

33. On the deletion point the Tribunal held

"This does amount to a detriment and for Mr Miah relies on hypothetical comparator. The Tribunal must consider the adequacy of the explanation. The explanation was that, because of changes in the way that the YOT operated, Mr Miah was the only person considered for redundancy and that there was therefore a pool of one. Only one post was considered. No inquiry was made as to whether the post on the list of available posts was suitable for Mr Miah and Ms Martins made no enquiry. Mr Miah was taken off the performance improvement plan in April 2006. Having taken these matters into account we are not satisfied with the explanation put forward and therefore point 8 will succeed." [Para 73]

34. The Tribunal went on to make findings of harassment in relation to the four points in these terms:

"In relation to points 4, 7 and 8 we have already concluded in relation to the direct discrimination complaint that there was no adequate explanation. We could conclude in relation to points 4, 7 and 8 that these were for the purpose of violating the dignity of the [Claimant], The Respondent has not proved that the conduct did not have that purpose, the effect was in the context of a background that it did violate the Claimant's dignity and created an intimidating hostile and humiliating environment."

35. The parties are agreed that if the appeal in relation to direct discrimination succeeds, then the appeal in relation to harassment also succeeds. Similarly if the appeal on direct discrimination fails, the harassment appeal fails as well.
36. In relation to the victimisation claim the Tribunal held that the grievances of 21 March 2005 and 14 March 2006 could be the protected acts. It operated on the basis that the reverse burden of proof applied and held that as the Council had not provided any adequate explanation in respect of the IQ test point, the excessive monitoring point and the insult point, those matters did amount to victimisation. The Tribunal also held that "there is a causal link between [the Claimant's] complaints [i.e. the two grievances] and the remark that [the Claimant] was unfit". No explanation of or reasoning for this finding was expressed.

The Council's submissions

37. The first two grounds of appeal concern the absence of reasoning given by the Employment Tribunal in determining that the burden of proof transferred to the Council so as to require it to provide an explanation and the Tribunal's apparent conclusion that because the Claimant relied upon a hypothetical comparator, the burden transferred to the Respondent to explain its conduct. It was pointed out that in dealing with each of the points, the Employment Tribunal used a shorthand formulation in considering whether the first stage of the two-stage test in Igen v Wong. Thus the Employment Tribunal stated as follows: "The IQ test was clearly a detriment and [the Claimant] relies on a hypothetical comparator so we can take that as a difference in race. In these circumstances the situation is that we could draw an inference and therefore the burden must pass". A similar shorthand was used in dealing with the excessive monitoring point and in relation to the insult point and the deletion point an even shorter formulation was used: "This [is] a detriment and [the Claimant] relies on a hypothetical comparator."
38. The Council noted that the Tribunal had directed itself correctly by stating (at paragraph 63):

"The Claimant has to show that the [Council] has committed the acts of less favourable treatment that he complains about. He has to show that he was less favourably treated than a real or hypothetical comparator. In the present case he relies on a hypothetical comparator. In order to determine these matters the Tribunal has to go through each of the detriments which are pleaded and also look at the position overall. We have to ask ourselves whether if there is less favourable treatment and difference in race, we could draw an inference and if that is the case then the burden passes and we have to consider the matter in the light of section 54A(2)."

But the Council argued that the Employment Tribunal has failed to apply the guidance it has cited when considering each of the detriments relied upon by the Claimant. In short what the Employment Tribunal has done is to say: (i) the act complained of is a detriment; (ii) the Claimant relies upon a hypothetical comparator (of a different race); (iii) therefore the burden of establishing that there has been no discrimination passes to the Respondent.

39. It submitted that were such a formulation correct, the test at stage one would be satisfied by establishing a detriment had been suffered by a Claimant. There would be no need to formally prove less favourable treatment and no advantage in relying upon an actual comparator. The Employment Tribunal failed to establish primary facts from which an inference could be drawn that there had been less favourable treatment on grounds of race. It appeared to have concluded that a hypothetical comparator would have been treated differently without explaining why. No explanation is provided as to how a hypothetical comparator would have been treated or the evidential basis for such a conclusion. The Tribunal appeared to assume that because the comparator was a hypothetical person that that person would of necessity have been treated differently without providing any basis for arriving at such a conclusion.
40. The Council went on to argue that the Employment Tribunal applied the wrong test in law in rejecting the adequacy of the Respondent's reasons for treating the Claimant as they did, and that the Employment Tribunal was wrong to reject the Council's explanation and make a finding of discrimination in the light of further express findings in the judgment that indicated a non-discriminatory reason for the Claimant's dismissal.. The finding in respect of the deletion point was particularly stark given that, in relation to the further claim in respect of point 8 as to whether the Respondent had victimised the Claimant by deleting his post, the Tribunal found that "[t]he Respondent had decided it wanted a qualified educational psychologist in the YOT because of the changes in the legislation." The Council submitted that since the Tribunal had failed to construct the test at stage one adequately or sufficiently by failing to come to a conclusion as to whether a hypothetical comparator would have been treated in a different way, there was then no basis for testing at stage two whether the explanation of the Respondent was "in no sense whatever on grounds of [race]" (see guideline (11) in Igen). It was important to recognise that when assessing the adequacy of the Council's explanation , what is being assessed is not whether, in the round, the explanation is adequate (in the sense of being satisfactory or reasonable), but whether the explanation is adequate in being non-discriminatory.
41. As to victimisation, the Council argued the only basis on which the victimisation claim could stand was by reference to the test applied and the findings made in respect of the direct discrimination claim. Since that reasoning was defective, the finding of victimisation could not stand. In addition, the Tribunal has quite clearly applied the two stage Igen test to the victimisation claim in circumstances where the test does not apply: Oyarce v Cheshire County Council [2008] EWCA Civ 434, which held that the reversal of the burden of proof does not apply to victimisation claims under the Race Relations Act 1976. The findings were in any event inadequately explained and were not supported by any evidence.

The Claimant's submissions

42. Ms Grewal on behalf of the Claimant submitted that the Tribunal did not understand the position to be that because the Claimant was relying on a hypothetical comparator, if he proved a detriment, that in itself was sufficient to shift the burden to the Council. Where one is relying on a hypothetical comparator there will be no evidence of actual less favourable treatment, and deciding whether the hypothetical comparator would have been treated more favourably often involves drawing inferences from all the evidence in the same way as one does for deciding whether the treatment was on racial grounds. She did not dissent from the proposition that the hypothetical comparator should be (a) of a different race from the Claimant but (b) similar in that he had difficulties with his written and oral communication skills. She submitted that a person's accent was very much dependent on their race and that therefore the action taken against the Claimant because he was difficult to understand could properly be said to amount to discrimination because of his race. If the Tribunal concluded that a claimant was treated less favourably than a person of a different race would have been in similar circumstances, it would be very difficult to conclude that was not on the grounds of race. In the case of a hypothetical comparator the issues of "less favourable treatment" and the "reason why" are often a single issue.
43. In Laing v Manchester City Council [2006] IRLR 748 the EAT held that a tribunal should have regard to all facts at the first stage to see what proper inferences can be drawn. The onus lies on the claimant to show potentially less favourable treatment from which an inference of discrimination could properly be drawn. This involves a consideration of all material facts, as opposed to any explanation. In Laing the example was given that if a manager acted rudely to a black employee that would not necessarily raise a prima facie case if there was evidence that that conduct was manifest to all indiscriminately regardless of race. The converse of that must be that if there is evidence that the manager acted rudely to only the black employee, that was a factor from which an inference could be drawn. This approach was approved by the Court of Appeal in Madarassy v Nomura International [2007] EWCA Civ 33. In that case the Court of Appeal said that at the first stage the tribunal needed to consider all the evidence relevant to the discrimination complaint and that included available reasons for the differential treatment.
44. In this case in respect of each of the detriments the Tribunal asked itself: (i) whether the Claimant had been subjected to a detriment; (ii)if he had, whether having regard to all the evidence and the facts that it had found, it could conclude (draw inferences) that he had on racial grounds been treated less favourably than a white employee of English origin would have been; (iii) if it could so conclude and the burden shifted, whether the Council had satisfied it that it had not discriminated on racial grounds. The Tribunal was entitled to conclude that it could from these facts infer less favourable treatment on the grounds of race, and that the burden, therefore, shifted to the Respondent. The Tribunal found that the Council had not put forward any acceptable, in the sense of satisfactory or credible, explanation for this, and concluded that in those circumstances the Council had not satisfied it that it had not discriminated on racial grounds.
45. The Tribunal accepted that Ms Riddel had made insulting comments about the Claimant in an email. The making of the remark would have been unjustified. It is clear from the Tribunal's conclusion that it viewed this as being closely linked to the requirement to attend an independent assessment/IQ test. As the Tribunal had rejected the Respondent's explanation (i.e. had not believed it) and for the same reasons that it had concluded it could infer race discrimination on that issue, it concluded that the burden shifted in respect of this complaint. The burden having shifted, the Respondent failed to satisfy the Tribunal that it had not discriminated on racial grounds.
46. The Tribunal did not repeat the evidence and facts from which it drew inferences in respect of each complaint. Clearly there is a link between the complaints, and the Claimant's accent and pronunciation are a recurrent theme. It is clear that the tribunal drew inferences from the same evidence for a number of the complaints.
47. So far as victimisation was concerned, the Tribunal found that the Claimant's complaints of victimisation succeeded in respect of the IQ test point, the excess monitoring and the insult point. The three essential ingredients that the Claimant had to establish were: (i) the Claimant had done a protected act (i.e. in this case lodge grievance); (ii) the Claimant had been subjected to a detriment; and (iii) the Claimant had been subjected to a detriment by reason that he has done the protected act ("the causal link").
48. While it was accepted that the case law on the reversal of the burden of proof does not apply in victimisation cases under the Race Relations Act 1976, the Tribunal found that the three ingredients had been made out. It did not accept the explanation put forward by the Council. In the absence of a credible explanation it was entitled to conclude that the reason for the Council's action was the protected act. Thus it concluded that 'the Claimant "had established a causal link'" between [the Claimant's] complaints and the remark that he was unfit". There was no error in law in those circumstances in concluding that the complaints of victimisation had been made out.

Discussion and Conclusions

49. The Tribunal must scrutinise all the evidence in order to determine whether, all other things being equal save the issue of race, a hypothetical person with the same relevant characteristics as the Claimant would have been treated differently. As the Court of Appeal held at paragraphs 28 and 29 of Igen, (cited with approval in the subsequent case of Madarassy v Nomura International) the task of the Employment Tribunal at stage 1 is to consider whether the complainant has proved facts from which the Employment Tribunal could conclude, in the absence of an adequate explanation, that the respondent committed an unlawful act of discrimination. That requirement applies to proving the relevant circumstances for the purpose of founding a cause of action under the 1976 Act, that there has been less favourable treatment, and that such an act was on racial grounds.
50. It is not in all cases necessary for a tribunal to go through an express and sequential "stage1, stage 2" process: see Brown v Croydon LBC [2007] EWCA Civ 32 at para 40. In this case the Tribunal purported to do so. Thus in relation to the IQ test point, the Employment Tribunal found that "the IQ test was clearly a detriment and [the Claimant] relies on a hypothetical comparator so we can take that as a difference of race. In these circumstances the situation is that we could draw an inference and therefore the burden must pass."
51. On the IQ test point the Tribunal then went on to point out the factors that led it to the view that the Council had not discharged the onus on it: no other person had been required to attend an independent assessment; such an assessment was not part of procedures; Ms Riddel never answered the Claimant's request as to whether this was standard procedure; Ms Riddel selected the expert and then asked the expert to change her report before sending the finalized report to the Claimant. The Tribunal then stated:

"We are not satisfied that the Respondent did not commit the act. They have failed to provide an adequate explanation and therefore in relation to this first part of point 4 the complaint must succeed."

52. Similarly in relation to the excessive monitoring point, the Employment Tribunal found that

"[the Claimant's] work was monitored closely and this could be a detriment. Again [the Claimant] relies on a hypothetical comparator so the matter is one where we have to consider the [Council's] response."

On the Tribunal's findings the cause of the monitoring was concerns raised by Miss Sassienie; Mr Collins, the Claimant's manager, felt that it was necessary to monitor the Claimant to see if he was under-performing; there were issues of under-performance as was accepted by the Claimant's trade union representative; the monitoring increased once the Claimant had been moved to the Medburn Centre; Ms Riddel made requests to other managers for information about the Claimant's performance; and the Council was trying to build a case against the Claimant; the Tribunal then said

"We do take into account Ms Riddel's e-mail of 12 September to Poppy Berry … and we do not find the explanation put forward by this Respondent to be acceptable and in these circumstances the second part of point 4 succeeds."

53. In relation to the insult point the Employment Tribunal found:

"The Respondent relies upon the same explanation as they have put forward for the report of Dr Doctor which we have already rejected and in these circumstances the Respondent has not provided an adequate explanation for point 7 which therefore succeeds."

54. In relation to the deletion point, the Tribunal found:

"This does amount to a detriment and Mr Miah relies on a hypothetical comparator. The Tribunal must consider the adequacy of the explanation. The explanation was that because of changes in the way the YOT operated the Claimant was the only person considered for redundancy and that there was therefore a pool of one. Only one post was considered. No inquiry was made as to whether the post on the list of available posts was suitable for the Claimant and Ms Martins made no enquiry. The Claimant was taken off the performance improvement plan in April 2006. Having taken these matters into account we are not satisfied with the explanation put forward and therefore point 8 will succeed."

55. In none of these cases did the Tribunal consider how a hypothetical comparator would have been treated. The Tribunal in each case goes from stating that the comparator is hypothetical straight to the assertion that in the circumstances the Tribunal could draw an inference so that the burden passed.
56. It appears that the Tribunal failed to construct the appropriate hypothetical comparator: the only reference to the characteristics of the comparator is at para 68 of the judgment "a hypothetical comparator so we can take that as a difference of race". There is no discussion as to any other characteristics of the hypothetical comparator of a different race from the Claimant or how such a comparator might have been treated in relation to any of the four points. There is no suggestion that it looked at how a person in the Claimant's position with the characteristics in relation to his intelligibility and lack of reading skills would have been treated.
57. Counsel for the Claimant was asked what material there was on which it could be suggested that a person of a different race who had the same disadvantages as the Claimant would have been treated differently. In particular she was asked what evidence or finding there was as to how a British person of a different race from the Claimant with a regional accent so strong that like the Claimant (as described by the Tribunal) he spoke "fluent but heavily accented English which is on occasion unclear" would have been treated differently. Having had the lunch adjournment to come up with an answer to the question, she was unable to do so.
58. In our view the Tribunal failed to construct the test at stage 1 adequately or sufficiently by failing to identify the characteristics of the hypothetical comparator beyond identifying a difference in race and to come to a conclusion as to whether a hypothetical comparator would have been treated in a different way. It therefore provided no basis for testing at stage 2 whether the explanation of the Respondent was "in no sense whatever on grounds of [race]" as suggested by guideline (11) in Igen. It follows that in our judgment the Tribunal fell into error and its decision on race discrimination cannot stand. As the parties are agreed, the findings on harassment then also have to be set aside.
59. As to the issue of victimisation, it is accepted by the Claimant in the light of Oyarce v Cheshire CC [2008] EWCA Civ 434 (decided after the hearing before the Tribunal in the present case) that the Tribunal erred in law in applying the two stage Igen test to the victimisation claim. The basis upon which the Tribunal made its findings of victimisation was that the onus had passed to the Council and that it had failed to provide an adequate explanation.
60. There was a separate difficulty in that in relation to finding:

"We are satisfied in relation to [the insult point] that there was no adequate explanation by the [Council] and there is a causal link between [the Claimant's] complaints and the remark that [the Claimant] was unfit and therefore that does amount to victimisation."

The first of the two grievances had been raised fifteen months before the "insult" against an African Caribbean lady. The second grievance (investigated by Ms Satwat Rahman) was raised over 4 months before the "insult" against, it appears, white fellow employees. It is difficult to see why it should be thought that the "insult" had anything to do with either grievance and there is nothing in the reasoning to explain the point. We were not directed to any evidence which could have justified such a finding and can only assume there was none.

61. In these circumstances the victimisation findings cannot stand.
62. The question then is whether the case should be remitted or whether the Employment Appeal Tribunal can substitute its own decision.
63. In our judgment the proper course is, having set aside the decision of the Employment Tribunal, to dismiss the Claimant's claims in respect of race discrimination and harassment. As the Court of Appeal pointed out in Madrassy at paras 54 to 61 the onus of proof does not shift simply on proof of a difference in status and a difference in treatment (save to the extent that there was evidence that no one else of any race had been required to undertake a test of the type administered by Dr Doctor). In this case there was no attempt to prove any difference of treatment. The material available was simply that the Claimant had suffered a number of unfavourable acts and that he was of Asian Bangladeshi origin. There was nothing to suggest any comparator of a different race would have been treated any differently. In our judgment the material before the Tribunal did not disclose any basis on which the Tribunal could properly have found that the onus of proof had passed. The Tribunal was entitled to find (as it did in its unappealed findings) that the Council's dismissal of the claimant was substantively unfair, but that is very different from finding race discrimination in the events leading up to the dismissal.
64. In relation to the victimisation claim, the Tribunal (not having the benefit of the decision in Oyarce) erred as to the "reversed onus of proof" point. If it had not done so, the victimisation claim would have failed. In those circumstances, leaving aside the difficulties about the finding of a causal connection between the protected acts relied upon and the acts of victimisation, the proper course is to dismiss the victimisation claims.
65. The appeal will therefore be allowed, the claims for race discrimination, harassment, and victimisation will be dismissed and the consequential amendments made to the award of compensation. The awards of £10,000 for injury to feelings, £2,000 for aggravated damages and the interest on those awards will be set aside, leaving an award of £9,790.40 for loss of earnings and £532.48 interest on that award.