United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS INGRID SIMLER QC (of Counsel) Instructed by: Messrs Cobbetts Solicitors LLP One Colmore Square Birmingham B4 6AJ
For the Respondent	MR BENJAMIN UDUJE (of Counsel) Instructed by: Messrs TMP Solicitors 29th Floor 1 Canada Square London E14 5DY


 


SUMMARY

RACE DISCRIMINATION

Inferring discrimination

Burden of proof

Findings of race discrimination by the Employment Tribunal were set aside by the Employment Appeal Tribunal because (a) the acts which were said to be acts of race discrimination were not the ones of which complaint had been made, (b) the Tribunal did not identify the facts from which race discrimination could be inferred, (c) the Tribunal did not explain why race discrimination could be inferred from the facts which it found proved and (d) for other reasons.


 


THE HONOURABLE MR JUSTICE KEITH

Introduction

1. The Claimant, Monday Ugiagbe, is black. He is of African ethnic origin. He was employed by the Respondent, Tower Hamlets Primary Care Trust ("the Trust"), from 11 February 2002 to 31 December 2006. Following the ending of his employment, he presented claims to the Employment Tribunal ("the Tribunal"), complaining of unfair dismissal and race discrimination. His complaint of race discrimination included a claim that his dismissal itself had been discriminatory, and included 26 other acts of allegedly discriminatory treatment, which had been identified at a case management discussion. Following a hearing which lasted 10 days, the Tribunal found that his dismissal had been both unfair and discriminatory, and it upheld 10 of the 26 allegations of other discriminatory treatment. The Trust now appeals against the findings of race discrimination, including the finding that Mr Ugiagbe's dismissal had been discriminatory, there being no appeal against the finding that Mr Ugiagbe's dismissal had been unfair on other grounds. There is no cross-appeal by Mr Ugiagbe in relation to the 16 allegations of discriminatory treatment which the Tribunal dismissed. All references in this judgment to sections of an Act are references to sections of the Race Relations Act 1976 ("the Act") unless otherwise stated. When quoting from the Tribunal's decision, we have referred to the parties as Mr Ugiagbe and the Trust rather than Claimant and Respondent, and we have avoided the use of acronyms.
2. The hearing of the appeal has had a chequered history. It was originally given a time estimate of 1½ days, although two days were actually set aside for the hearing, with a starting time of noon on the first day to give us additional time to read the papers. Unfortunately, the original estimate proved inaccurate, and by the time the Tribunal adjourned at the end of the second day of the hearing, the parties thought that at least another full day was required. Problems in finding another day which was convenient for both counsel and the members of the Tribunal meant that over four months passed before the hearing could be resumed. Correspondence between the parties dealing with a query which we had voiced on the resumed hearing raised further issues which had to be clarified. Difficulties in then finding judgment writing time together with the need for the draft judgment to be formatted to suit the Employment Appeal Tribunal's house style and to be approved by the lay members has accounted for much of the lapse of time since then.

The primary facts found by the Tribunal

3. An overview of Mr Ugiagbe's employment. Mr Ugiagbe's post when he started working for the Trust in 2002 was Nurse Recruitment and Retention Co-ordinator in the Trust's Directorate of Nursing and Therapies. The head of the Directorate, the Director of Nursing and Therapies, was Caroline Alexander, and Mr Ugiagbe's post was at the highest grade for a clinical nurse on the grading system which then applied to staff working within the National Health Service. In 2004, a substantial reorganisation took place within the National Health Service. It was called Agenda for Change, and it resulted in a new framework for terms and conditions of staff and the introduction of a new grading system. Mr Ugiagbe's post was assessed at grade 8A under the new grading system.
4. In 2005, the Directorate of Nursing and Therapies was amalgamated with the Directorate of Medicine. The head of the Directorate of Medicine was Dr Douglas Russell, who the Tribunal wrongly referred to as Mr Russell. The new directorate became known as the Co-Directorate of Medicine, Nursing and Therapies, and was headed jointly by Ms Alexander and Dr Russell. The amalgamation of the two directorates resulted in the disestablishment of Mr Ugiagbe's post, and the creation of the new post of Practice Development Facilitator. Where there was at least a 75 per cent match between a disestablished post and a new one, the Trust's practice was to allocate the holder of the disestablished post to the new one. That applied to these two posts, and accordingly Mr Ugiagbe was allocated the new post. Pending a decision as to the grade at which this new post should be assessed, it was treated as a grade 8A post for the purpose of Mr Ugiagbe's pay and benefits. Mr Ugiagbe's line manager in this new post was Zora Bampoe. Her job title was Associate Head of Nursing and Therapies (Personal and Professional Development).
5. In 2006, another national initiative – known as Commissioning a Patient-led NHS – led to a further restructuring of the posts now within the Co-Directorate of Medicine, Nursing and Therapies. That restructuring included the disestablishment in the summer of 2006 of the posts held by Mr Ugiagbe and Ms Bampoe, and the creation of two new posts, Associate Director of Clinical Leadership and Workforce Development and Head of Professional Development. These new posts were not regarded as representing at least a 75 per cent match with the two disestablished posts, and so Mr Ugiagbe and Ms Bampoe were not automatically allocated them. They were invited to apply for the posts, and told that the posts would be ring-fenced for them. Mr Ugiagbe applied for both posts, but he had not been interviewed for either of the posts by the time his employment with the Trust came to an end.
6. The grading exercise. In December 2005, the grading panel assessed Mr Ugiagbe's new post of Practice Development Facilitator at grade 8A, the same grade as his previous post of Nurse Recruitment and Retention Co-ordinator. It did so by reference to the job description for the post. Mr Ugiagbe was not told of that assessment at the time. That was because Ms Alexander (and Veronica Husband, the Trust's Human Resources Manager, for that matter), were dissatisfied about the grade at which Mr Ugiagbe's new post had been assessed. The Tribunal found that Ms Alexander thought that it should have been assessed at a lower grade. The Tribunal said that there had been no evidence about why the Trust was dissatisfied with the grade, but it went on to record that the grading panel had treated the post of Nursing Consultant as the appropriate benchmark for evaluating the new post of Practice Development Facilitator, and that the Trust's case had been that that had been inappropriate. For example, unlike the post of Nursing Consultant, the post of Practice Development Facilitator had only limited clinical responsibilities. Indeed, Ms Bampoe (who was called to give evidence on Mr Ugiagbe's behalf) agreed that the post of Nursing Consultant was not the best comparator. But the Tribunal did not agree with the Trust that the grading panel's assessment of the new post was suspect. The Tribunal thought that the panel was likely to have taken the differences between the post of Nursing Consultant and the post of Practice Development Facilitator into account when settling on the appropriate grade.
7. When there was concern about the grading of a particular post by the grading panel, the relevant protocol provided for the post to be referred to a consistency checking panel for it to consider whether the grade allocated to the post by the grading panel was consistent with the grades for comparable posts both locally and nationally. That did not happen in the case of Mr Ugiagbe's post. Instead, Ms Alexander instructed Ms Husband and Claire Strickland, the staff side representative for the implementation of Agenda for Change, to reassess the post so that it was downgraded. It is said on behalf of the Trust that there was no evidence to support such a finding. We do not agree. The Tribunal found that Ms Alexander was subsequently to tell Ms Bampoe that she had asked Ms Husband and Ms Strickland to reassess the post "to ensure that it was scored lower". The Tribunal found that this was "a separate ad hoc and informal procedure" for dealing with concerns about the grading of a post. The process was carried out on 13 January 2006. Although Ms Husband and Ms Strickland thought that the grading panel had given insufficient weight to some areas ("Policy & Service" and "Planning & Organisational Skills"), they thought that the grading panel had given too much weight in other areas ("Patient/Clinical Care", "Research and Development" and "Mental Effort"). Their opinion was that 8A was not an appropriate grade for the post.
8. This conclusion was reported to Ms Alexander, but the Tribunal made contradictory findings about whether the issue of the appropriate grade had then been referred back to the grading panel or not. In paras. 56 and 135 of its decision, the Tribunal said that the issue had been referred back to the grading panel, and that the post had still been assessed at grade 8A. That was Mr Ugiagbe's case. However, in para. 38, the Tribunal said that it had not been referred back to the grading panel. That was the Trust's case. Indeed, the Tribunal said in para. 35 that it was because the grading panel had not been asked to review the grade that no-one knows whether the grading panel would have agreed with the criticisms of its assessment. Whatever the position, though, the Tribunal found that Ms Alexander had tried to enlist Ms Bampoe's help in getting Mr Ugiagbe's post assessed at grade 7. She wanted Ms Bampoe to look at the job description for the post to that end. Ms Bampoe thought that Ms Alexander was thinking more of the holder of the post than the post itself, and she refused to take any further part in the grading of Mr Ugiagbe's post.
9. In the meantime, Mr Ugiagbe was not being kept informed of what was happening. It is said on behalf of the Trust that the Tribunal made no finding that it was Ms Alexander who had failed to tell Mr Ugiagbe about the grade which the grading panel had given to his post. We do not agree. The Tribunal found that Ms Alexander had told Ms Bampoe that Mr Ugiagbe was not to be told the grade which the grading panel had given to the post. Indeed, he was not told of her concerns about the grade, or the steps she had taken to get the grading for the post re-assessed. The Tribunal said that it was not given a reason for that either. A job analysis questionnaire relating to the assessment was sent to Mr Ugiagbe on 17 May 2006, but eventually Mr Ugiagbe complained about the delay in the assessment of the post, and it was following this that on 10 July 2006 he received an e-mail from Ms Husband about what had been happening. Eventually, Mr Ugiagbe's now disestablished post was re-assessed by the grading panel, this time consisting of three different members from those who had constituted the panel in December 2005, and taking into account the job analysis questionnaire which had been completed. That re-assessment took place on 30 November 2006. The grading panel re-assessed the grade for the post as grade 7, and Mr Ugiagbe was informed of that on 13 December 2006.
10. There were features about the grading exercise relating to Mr Ugiagbe's post which applied to the posts of other employees. A document created in July 2006 showed that Mr Ugiagbe's post was one of 43 which were still to be finally graded. The document shows that Mr Ugiagbe was among the only 8 post holders who had yet to be interviewed, and that was what the Tribunal meant when it said that "unlike most of the 43 … his process was yet to start". There is no breakdown of the ethnicity of those 8 post holders compared with the other 35 members of staff, but the Trust says that at least some of the 8 were white, although it does not look as if the Tribunal ever asked what their breakdown was.
11. Having said that, the Tribunal looked in detail at the cases of the four members of staff other than Mr Ugiagbe who the Trust had said, in response to a questionnaire under the Act, had had to wait over a year for their posts to be finally graded. Although the course of events in their cases differed slightly depending on what the problem with the initial grading had been, what was common to all of them, so the Tribunal found, was that they had been informed of the grades which the grading panel had assessed their posts at, and they had been involved in the attempts to resolve such problems as were perceived to exist in their grading, much earlier than Mr Ugiagbe had been. We presume that this was what the Tribunal was referring to when it said that Mr Ugiagbe "was the only worker who had no participation in the process". Although the Tribunal made no findings about the ethnicity of these four members of staff, the Trust's response to the questionnaire shows that three were white and one was from Pakistan. Of these four members of staff, the Trust says that none were managed by Ms Alexander, and two of the four (including the one from Pakistan) were managed by Dr Russell, though it does not look as if the Tribunal was told that. The Tribunal found that what distinguished Mr Ugiagbe from these four members of staff was that unlike them Mr Ugiagbe was kept uninformed about the problem with the grading of his post.
12. The recruitment of outsiders. In the summer of 2006, two women – both white – were recruited outside the Trust's normal recruitment procedures to perform tasks which either had been, or could have been, carried out by Mr Ugiagbe. They were Melanie Warner and Yvonne Waterhouse. At a meeting on 27 July 2006 at which Mr Ugiagbe and others were present, Dr Russell announced his decision to recruit Ms Warner to run the Trust's protected learning time programme ("the PLT programme") which Mr Ugiagbe usually ran. Mr Ugiagbe was embarrassed by this announcement of which he had no prior knowledge or warning. As it turned out, Ms Warner did not begin to run the programme until October, but the running of the programme was the only part of Mr Ugiagbe's work which Dr Russell managed. A little later, but while Mr Ugiagbe was on sick leave, Ms Alexander arranged for Ms Waterhouse to be seconded from the local health authority to assist her with the planning of a conference and to do other work. This was work which Mr Ugiagbe could have done. Indeed, even after Ms Waterhouse's secondment came to an end, Ms Alexander arranged for another white woman, Adrienne Fitzgerald, to continue the work which Ms Waterhouse had been doing.
13. Ms Bampoe's concerns. Ms Bampoe was concerned about the appointment of Ms Warner and the removal of Mr Ugiagbe's responsibility for the PLT programme. She was also concerned about the extension of the secondment of Teresa McInerney, a member of staff who Mr Ugiagbe had managed when he had been responsible for the PLT programme, and about how Mr Ugiagbe would be managed during a period of sick leave which she was about to go on. She therefore met Ms Alexander and Dr Russell on 1 August 2006 to discuss these issues. At the meeting, she was told that Mr Ugiagbe was incompetent, and that neither Ms Alexander nor Dr Russell believed that he could deliver on the tasks or objectives set for him. Dr Russell said that his personal view was that Mr Ugiagbe was "lacking in mental capacity", and Dr Russell made a similar remark to Ms Bampoe the next day. On that occasion, Ms Bampoe told Dr Russell that Mr Ugiagbe had two masters' degrees. Dr Russell's response was to say: "Wow! Big deal!" However, the Tribunal found that Dr Russell's belief that Mr Ugiagbe was incompetent was based only on a report written by Mr Ugiagbe about the PLT programme. He had never spoken to Mr Ugiagbe about his performance, and neither he nor Ms Alexander had spoken to him about how his performance could be improved or offered him training and support. On the contrary, there was evidence of Dr Russell commending Mr Ugiagbe on a particular piece of work.
14. Most people would have assumed that when Dr Russell referred to Mr Ugiagbe's lack of mental capacity, he was talking about Mr Ugiagbe's intellectual capacity. He was commenting on how bright he thought Mr Ugiagbe was. The Tribunal did not consider that possibility. It took Dr Russell's words more literally than most people would think he intended them. It commented that Dr Russell's belief was not based on any psychological examination or assessment of Mr Ugiagbe, and that as a general practitioner Dr Russell did not have the expertise to make such a judgment. It said that Dr Russell was being dismissive and disparaging of Mr Ugiagbe, and that his comment was insulting. It noted that Ms Bampoe said that she had never heard Dr Russell describe a white colleague in such disparaging terms.
15. Later on, Ms Bampoe raised her concerns about Dr Russell's treatment of Mr Ugiagbe with Martin Cusack, the Trust's Deputy Chief Executive. She told him in effect that Mr Ugiagbe's race may have been behind his treatment. Mr Cusack promised to deal with the issue, but when Ms Bampoe heard nothing further, she raised a written grievance with Alwen Williams, the Trust's Chief Executive. If the report produced by Ms Williams following her investigation of the grievance is anything to go by, it looks as if the only part of the grievance which related to Dr Russell's treatment of Mr Ugiagbe was the "Wow! Big deal!" comment. Indeed, even then, the Tribunal noted that Ms Bampoe was not then suggesting that Mr Ugiagbe's race may have been behind his treatment. Instead, she was complaining about what she regarded as a lack of professionalism on Dr Russell's part. By the time Ms Bampoe's grievance was determined, Mr Ugiagbe's employment had come to an end, but Ms Williams was to find that Dr Russell had been unduly dismissive of Mr Ugiagbe's degrees. She noted that Dr Russell had apologised for his behaviour, and in the context it is plain that she was referring to the fact that Dr Russell had apologised to her. However, it looks as if the Tribunal thought that Ms Williams was saying that Dr Russell had apologised to Mr Ugiagbe. Since he had not done that, it led the Tribunal erroneously to find that Dr Russell had either told Ms Williams that he had apologised to Mr Ugiagbe (when he had not) or that she had told him to (which he had not done).
16. Acting up. Ms Bampoe had been on sick leave between October 2005 and March 2006. Ms Alexander claimed that during that time she asked Mr Ugiagbe to perform two of Ms Bampoe's functions – namely, to cover the meetings she usually attended and to manage the contract which the Trust had with City University. Ms Alexander said that she picked up the rest of Ms Bampoe's duties. The Tribunal concluded that Mr Ugiagbe had in effect been acting up for Ms Bampoe even though there were no formal acting-up arrangements in place. Ms Bampoe went on sick leave again in September 2006. This time Ms Alexander refused to let Mr Ugiagbe act up for Ms Bampoe, even though as before he performed some of her duties during her absence. The Tribunal found that if Mr Ugiagbe had been allowed to act up for Ms Bampoe, that would have "greatly assisted in his development and would have enhanced his chances of promotion and advancement within the Trust". Ms Alexander's explanation for not permitting him to act up was that he was unwell and suffering from stress at the time. Indeed, Mr Ugiagbe was on sick leave for two weeks during the period of Ms Bampoe's absence, and the Tribunal found that within a few weeks of his return to work, very little work was being allocated to him.
17. The disestablishment of Mr Ugiagbe's post. It was on 5 July 2006 that Mr Ugiagbe was informed by Dr Russell that his post of Practice Development Facilitator would be disestablished in the restructuring following the Commissioning a Patient-led NHS initiative. They talked about Mr Ugiagbe's possible redundancy – albeit only in vary general terms – since by then Mr Ugiagbe had begun to worry about his future at the Trust. However, Mr Ugiagbe was not looking at redundancy as a possible outcome, because he was expecting to be confirmed in one of the two new posts which were to be created, for which Ms Alexander told him on 15 August 2006 he and Ms Bampoe would be "ring-fenced". He was told that interviews for those posts would take place in September. In fact, he was never interviewed for either post. The Trust's explanation for that was that it was waiting for Ms Bampoe to apply for one or both of the posts, though in the event she never did because she thought that she ought to have been allocated one of them automatically.
18. The fact that Mr Ugiagbe might have to be dismissed for redundancy had been a possibility ever since it was known that his post of Practice Development Facilitator was to be disestablished. Indeed, he had been informed by Ms Alexander on 15 August that he was "in a redundancy situation". In September, she was suggesting that he go on-line and look for other jobs. He was advised about who he should contact if he needed counselling, and he was told that if he was going to be made redundant, it would not be before June 2007. Although Ms Alexander had said that she would pass him any information about job opportunities, she did not do so.
19. The further involvement of Mr Cusack. Mr Cusack had been Mr Ugiagbe's line manager earlier on in his employment with the Trust. They had established a good working relationship then, and Mr Ugiagbe had previously enlisted Mr Cusack's help, albeit unsuccessfully, over the delay in the grading of his post. But on 16 November 2006, Mr Ugiagbe went to see Mr Cusack again. The Tribunal did not make any findings about what Mr Cusack actually said to Mr Ugiagbe, but whatever it was, Mr Ugiagbe got the impression that there would be no place for him in the Directorate following the latest restructuring, and that no-one really wanted him to stay on as an employee of the Trust. It was in the light of this that Mr Ugiagbe asked about redundancy terms during the meeting, and he was left with the impression that it would be in the region of a year's salary. However, the Tribunal found that Mr Ugiagbe had no intention of resigning – or presumably of accepting dismissal for redundancy – at the time. He had survived previous reorganisations within the Trust, and he was expecting to be retained by the Trust following the reorganisation.
20. The termination of Mr Ugiagbe's employment. There was conflicting evidence before the Tribunal about the circumstances in which Mr Ugiagbe's employment came to an end. The Trust's case was that Mr Ugiagbe had not been dismissed, but that his employment with the Trust had been terminated by mutual consent when he agreed to take voluntary redundancy on agreed terms. Since the Tribunal's finding that he was dismissed is not challenged, it is possible to deal with these events relatively briefly. The Tribunal found that at a meeting on 20 November 2006 Mr Ugiagbe had been told by Ms Alexander (who was accompanied by Dave West, the Trust's Head of Employee Relations) that he would be made redundant straight away, and that his redundancy would not be deferred until June 2007. The Trust subsequently tried to dress this up as if there had been a voluntary redundancy, but Mr Ugiagbe made it clear that he had not asked to be made redundant at all.
21. A further meeting took place on 13 December 2006 to discuss the terms of Mr Ugiagbe's redundancy. It was at that meeting that Ms Alexander (who was again accompanied by Mr West) told Mr Ugiagbe that his now disestablished post of Practice Development Facilitator had been re-assessed at grade 7. That came as a shock to Mr Ugiagbe because he had been expecting the original assessment of grade 8A to be confirmed. He must have talked about appealing against the re-assessment because he was told that if he lost the appeal his redundancy payment would be calculated on the basis that his post was a grade 7 one. There was a significant difference in pay between grades 7 and 8A. The highest annual salary for a grade 7 post was £37,236.00, whereas the highest for a grade 8A post was in the region of £43,335.00. Mr Ugiagbe was also told that his redundancy would be taking effect on 15 December, i.e. in two days' time. Mr Ugiagbe protested, and in due course it was agreed that his redundancy payment would be £42,786.26 (i.e. an amount appropriate to a grade 8A post), that his employment would end on 31 December, and that he would be paid three months' salary in lieu of the notice to which he would otherwise be entitled. He reluctantly accepted those terms because, had he not done so, he would have run the risk of his redundancy payment being calculated by reference to a grade 7 post, not a grade 8A one.

The relevant legal principles

22. The complaints of race discrimination which the Tribunal upheld were all allegations of direct race discrimination. It is not possible to understand the Tribunal's reasons for upholding these complaints without an appreciation of what constitutes direct race discrimination, and of the law which the Tribunal had to apply in relation to the burden of proof and the drawing of inferences in cases of alleged discrimination. The Trust would have directly discriminated against Mr Ugiagbe on racial grounds if it had treated him less favourably than it would have treated a comparable person of another racial group. For that discrimination to have been unlawful, the Trust must have subjected Mr Ugiagbe to some detriment: see sections 1(1)(a) and 4(2). Not every instance of less favourable treatment amounts to a detriment. The question for the Tribunal was whether Mr Ugiagbe might reasonably have taken the view that his less favourable treatment resulted in him being disadvantaged in the circumstances in which he had to work: see Lord Hope in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 at [34]. The burden of proof is covered by section 54A. Its effect was that if Mr Ugiagbe proved facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the Trust had discriminated against him, the Tribunal had to uphold any complaint of discrimination unless the Trust proved that it had not discriminated against him.
23. Guidance on how this shifting burden of proof works – and the two stages of the analysis which are involved – was given by the Court of Appeal in Igen Ltd v Wong [2005] ICR 931. The first stage in the analysis was for the Tribunal to decide whether Mr Ugiagbe had proved facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the Trust had discriminated against him. The outcome at that stage of the analysis would depend on what inferences the Tribunal could draw from the primary facts found by it, on the assumption that there had been no adequate explanation for those facts. In Laing v Manchester City Council [2006] ICR 1519, the Employment Appeal Tribunal (Elias P (as he then was) presiding) held that the primary facts which the Tribunal should be addressing at this stage in the analysis were not limited to the facts relied on by the claimant. The Court of Appeal in Madarassy v Nomura International Plc [2007] ICR 867 at [69] agreed with that. Accordingly, the Tribunal in this case had to take into account the primary facts relied on by the Trust as well.
24. Two things should be added to that. First, in Madarassy, the Court of Appeal held at [57] that, subject to the assumption which the Tribunal had to make about the absence of an adequate explanation for the treatment of the claimant, the evidence which the Tribunal would need to consider at the first stage of its analysis was all the evidence relevant to the complaint of discrimination, including "all the evidence of the reasons for the differential treatment". Thus, if Mr Ugiagbe had been treated differently from any selected comparator (whether an actual or a hypothetical one), such evidence as the Trust gave for the reasons for such differential treatment should be considered at the first stage of the analysis as well as the second. Secondly, in Madarassy, the Court of Appeal also held at [56] that the burden of proof did not shift simply because the claimant had been treated differently from someone of a different racial or ethnic origin. As Mummery LJ said, "[t]he bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination". They do not, without more, provide a sufficient basis on which a tribunal could properly conclude that a claimant had been treated less favourably than other comparable employees because of his race.
25. If Mr Ugiagbe proved facts from which the conclusion could be drawn that he had been treated less favourably than other comparable employees because of his race, then the burden of proof shifted to the Trust to prove that it had not discriminated against him. That was the second stage of the analysis. To discharge that burden, the Trust had to satisfy the Tribunal, on the balance of probabilities, what the explanation for its treatment of Mr Ugiagbe had been, and that that explanation had had nothing to do with his race, though since the facts necessary to prove that explanation would usually be in the possession of the respondent to a complaint of race discrimination, the Tribunal would normally expect cogent evidence to discharge that burden of proof. In Madarassy, the Court of Appeal held at [58] that the absence of an adequate explanation for the treatment of the claimant only becomes relevant at this stage of the analysis.
26. However, in Laing, the Employment Appeal Tribunal warned employment tribunals not to approach these questions too mechanistically. At [75], it said:

"The focus of the Tribunal's analysis must at all times be the question whether or not they can properly and fairly infer race discrimination. If they are satisfied that the reason given by the employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then that is the end of the matter. It is not improper for a Tribunal to say, in effect, 'there is a nice question as to whether or not the burden has shifted, but we are satisfied here that even if it has, the employer has given a fully adequate explanation as to why he believed as he did and it has nothing to do with race'."

In Madarassy, the Court of Appeal at [81] described the discussion in Laing of those cases in which the Tribunal could go straight to the second stage of the analysis as "valuable".

27. We turn to the drawing of inferences in cases of alleged discrimination. The leading case in this area is The Law Society v Bahl [2003] IRLR 640. The Employment Appeal Tribunal (Elias J (as he then was) presiding) held at [94] that the mere fact that a claimant had been treated unreasonably could not lead to an inference that he had been treated less favourably than a comparable person from another racial group would have been treated. As Lord Browne-Wilkinson said in Zafar v Glasgow City Council [1997] ICR 120 at p.123, in adopting the language of Lord Morison in the Court of Session, "[i]t cannot be inferred, let alone presumed, only from the fact that an employer has acted unreasonably towards one employee, that he would have acted reasonably if he had been dealing with another in the same circumstances". But as the Employment Appeal Tribunal went on to say at [100] and [101], where the alleged discriminator has acted unreasonably, the Tribunal will want to know why. It will be all the more incumbent on the alleged discriminator to give a comprehensive and credible explanation for the treatment of the claimant. In such a case, the Tribunal will more readily reject that explanation if the treatment of the claimant has been unreasonable. But if the alleged discriminator's non-discriminatory explanation for the treatment of the claimant is convincing – in the sense that it was honestly given – it is likely to be a full answer to any claim of discrimination. When Bahl got to the Court of Appeal – [2004] IRLR 799 – the Court approved at [101] what it described as the Employment Appeal Tribunal's "impressive analysis" of the issue. As we shall see, the principal criticism of the Tribunal is that it assumed that such treatment of Mr Ugiagbe which it found to be unreasonable must have been because of his race.
28. Since race discrimination is all about someone being treated less favourably because of their race than how someone from another racial group would have been treated, it was necessary for the Tribunal to compare how Mr Ugiagbe had been treated with how someone from another racial group would have been treated. That reflects the requirements of section 3(4), which required Mr Ugiagbe's treatment to be compared with that of a person of a different racial group whose relevant circumstances were the same as his, or at least not materially different from his. It used to be thought that this meant that an actual comparator (or a hypothetical comparator when there was no actual comparator) had to be identified, and the treatment of the claimant compared with such a comparator. However, in Shamoon, Lord Nicholls made the point at [11] that "employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as [he] was". So if the claimant was treated as he was because of his race, "there will usually be no difficulty in deciding whether [his] treatment [for that reason] was less favourable than was or would have been afforded to others". That led the Employment Appeal Tribunal in Bahl to conclude at [126] that "tribunals need not be unduly concerned to identify which is the hypothetical comparator in order to address the issue of less favourable treatment, as though this was a necessary stage in the reasoning process".
29. This, then, was the legal framework within which the Tribunal was operating, but before considering each of the complaints of race discrimination which the Tribunal upheld, there is one other principle which should be mentioned, and which applies to cases such as the present where there are a number of allegations of discrimination over a substantial period of time. In such a case, it would be wrong to treat the individual incidents complained of in isolation from one another or from the history of the employee's employment as a whole. Such a fragmented approach would overlook the relevance which the wider picture may have to the decision to be reached on those individual complaints. What emerges from looking at the wider picture may well inform the assessment of whether, in respect of each of the individual complaints, the employee has been treated less favourably than a comparable employee from a different racial group would have been. That is the effect of the decision of the Court of Appeal in London Borough of Ealing v Rihal [2004] EWCA Civ 623 at [31]-[32], applying the approach of the Employment Appeal Tribunal (Mummery J (as he then was) presiding) in Qureshi v Victoria University of Manchester [2001] ICR 863.
30. The Tribunal's summary of the relevant legal principles was less detailed than the one we have attempted to give. That is not necessarily a criticism of the Tribunal, but it is noteworthy that it did not spell out what was described in Bahl at [127] as "the Zafar trap", namely that it was not legitimate to infer that an employee had been discriminated against simply because the employee had been treated unreasonably. It is also noteworthy that the Tribunal spent as much time in summarising the effect of provisions which had not been relied upon by the parties but which the Tribunal drew to the parties' attention: section 38, which provides that positive discrimination in providing facilities for training for people from ethnic minorities is not unlawful, and the Code of Practice issued by the Commission for Racial Equality on the duty to promote race equality under section 71, which included the duty on primary care trusts among others to prepare and publish a race equality scheme.

The structure of the Tribunal's decision

31. The Tribunal's decision for the most part followed a conventional structure. The Tribunal set out the primary facts which it found, and then dealt with the complaint of unfair dismissal. It found that the circumstances of the termination of Mr Ugiagbe's employment amounted to his dismissal, but that he had not been redundant as there had been work which he could have done, even though that work was being performed by Ms Warner and Ms Waterhouse, and subsequently by Ms Fitzgerald, until the Trust was ready to fill the two posts which had been ring-fenced for Mr Ugiagbe and Ms Bampoe. It found that the real reason for Mr Ugiagbe's dismissal had been his race, and that his dismissal had been automatically unfair for that reason. It also found that his dismissal had been procedurally unfair because the relevant statutory disciplinary procedure had not been completed as a result of the Trust's failure to comply with its requirements.
32. The Tribunal dealt with the 26 allegations of other discriminatory treatment by identifying in various passages in its decision those facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the Trust had discriminated against Mr Ugiagbe. It then set out, in para. 132 of its reasons, its findings on each of those 26 allegations. It upheld some of those complaints, but rejected others. It is at that stage that the structure of the Tribunal's decision becomes troubling. Although it had made findings about each of those complaints, the Tribunal then purported, in paras. 134-146, to "draw" various "conclusions" from these 26 complaints. It is questionable whether that was what the Tribunal was doing. In paras. 135-139, it simply reiterated some of its reasons for upholding some of those complaints, and it then considered in para. 140 what one might have expected it to have done before it made its findings in para. 132, namely to consider who should be treated as an appropriate comparator for Mr Ugiagbe. It rejected Mr Ugiagbe's contention that Ms Bampoe was a suitable comparator, and held that if a comparator was needed, the appropriate hypothetical comparator was a white manager in a grade 8A post which had been disestablished as a result of the Commissioning a Patient-led NHS initiative while the post was being assessed following the re-organisation brought about by the Agenda for Change initiative. In a number of respects, it found in para. 141 that such a comparator would have been treated differently from Mr Ugiagbe.
33. The Tribunal then went on to say in para. 142, as if it had not already made its findings, that "therefore" the burden shifted to the Trust "to provide a non-discriminatory reason for [its] treatment" of Mr Ugiagbe. It noted that the Trust had not advanced a non-discriminatory reason for his dismissal in the event of the Tribunal finding that Mr Ugiagbe had been dismissed, i.e. the Trust had not contended that if Mr Ugiagbe had been dismissed, his dismissal would have been for redundancy, but the Tribunal reiterated in paras. 142-144 its previous finding that in any event Mr Ugiagbe had not been redundant. As for those of the ten other complaints of race discrimination which it had already upheld, the Tribunal found in para. 145 that there had not been any "persuasive, reasonable non-discriminatory reasons" for the Trust's treatment of Mr Ugiagbe, and it reiterated some of the reasons it had previously given for upholding those complaints.

The core criticisms of the Tribunal's approach

34. A key criticism of the Tribunal advanced by Ms Ingrid Simler QC for the Trust (who did not represent the Trust in the Tribunal) is that it failed to conduct a proper comparison of how Mr Ugiagbe had been treated with how someone from another racial group would have been treated. Only then would the Tribunal have been in a position to conclude whether he had been treated less favourably than his comparator. We do not agree with this criticism of the Tribunal. It is plain from paras. 140 and 141 of the Tribunal's decision that in relation to a number of the complaints it compared Mr Ugiagbe's treatment with how the hypothetical comparator which it identified had been treated. It is true that the Tribunal's structure suggests that the Tribunal carried out that exercise after it had made its finding on each individual complaint of race discrimination, but we think that was just the product of inept drafting.
35. A more compelling criticism of the Tribunal's approach is that when it did compare Mr Ugiagbe's treatment with how his hypothetical comparator would have been treated, the inferences which it drew from the facts which had been proved that Mr Ugiagbe had been less favourably treated, and that his less favourable treatment had been on racial grounds, were completely unreasoned. The only conclusion which can be drawn about the way the Tribunal approached its task was that it focused on whether the treatment of Mr Ugiagbe by the Trust had been reasonable, and if the treatment of him had not been reasonable, it considered whether that unreasonable treatment had been adequately explained. The Tribunal then inferred discrimination in those instances where the unreasonable treatment could not be adequately explained. It is unquestionably the case that if that had been the Tribunal's approach, its approach would have been flawed. The principal issue which the appeal raises is whether that was the Tribunal's approach.
36. That issue has to be addressed in the context of what the Tribunal said about the ten individual complaints of race discrimination which the Tribunal upheld, and the finding that Mr Ugiagbe's dismissal had been discriminatory. The Tribunal assigned numbers to each of the 26 individual complaints of race discrimination (other than the complaint that his dismissal was discriminatory), and we propose to keep to the Tribunal's numbering.

The ten individual complaints of race discrimination which the Tribunal upheld

37. (1) "The outcome of the December 2005 job evaluation process under Agenda for Change was not made known to Mr Ugiagbe until November 2006". This complaint was that the Trust's failure to notify Mr Ugiagbe until November 2006 that his post had originally been assessed at grade 8A was an act of race discrimination. A curious feature of this complaint is that it assumes that Mr Ugiagbe was indeed informed of the original assessment, albeit as late as November 2006. We have not discerned any finding in the Tribunal's decision to the effect that Mr Ugiagbe was ever told about the original assessment. He was told, of course, about the subsequent re-assessment of his post at grade 7, but not, so far as we can tell, about the original assessment. However, the appeal was conducted on the basis that he had been told of the original assessment in November 2006, and we approach the appeal on that basis.
38. It should be noted that this complaint related only to the delay in informing Mr Ugiagbe of the original assessment of his post. There was only one other complaint among the 26 individual complaints of race discrimination which related to the grading exercise. That was complaint (19), which the Tribunal treated as a complaint that the continuing re-assessment of the grade for Mr Ugiagbe's post despite its disestablishment in the summer of 2006 was discriminatory. However, a possible reading of the Tribunal's decision is that the Tribunal treated as complaints of race discrimination two other aspects of the grading exercise, namely Ms Alexander's attempts (a) to get Mr Ugiagbe's post downgraded by an informal process which was not sanctioned by the appropriate protocol, and (b) to enlist Ms Bampoe's help in getting the post downgraded. If that is what the Tribunal did, that was not permissible. As Peter Gibson LJ said in Chapman v Simon [1994] IRLR 124 at [42] (in a passage cited in Bahl at [104]):

"…the complainant is entitled to complain to the Tribunal that a person has committed an unlawful act of discrimination, but it is the act of which complaint is made and no other that the Tribunal must consider and rule upon … If the act of which complaint is made is found not to be proven, it is not for the Tribunal to find another act of racial discrimination of which complaint has not been made to give a remedy in respect of that other act." (Emphasis supplied)

39. We turn to the relevant passages in the Tribunal's decision. The first is in para. 43 of its decision where the Tribunal said that "the Trust's failure to or decision not to inform Mr Ugiagbe of his 8A grading by the Agenda for Change Panel in December 2005, the decision to put it through a consistency checking process and [the] way that Mr Ugiagbe's whole Agenda for Change banding process was handled by the Trust constitute facts that could lead us to infer less favourable treatment on the grounds of race".
40. There are a number of comments to be made on this passage. First, these purported to be the facts from which the Tribunal found that it could conclude, in the absence of an adequate explanation, that Mr Ugiagbe had been treated less favourably than his hypothetical comparator because of his race. That constituted the first stage of the analysis. However, although the Tribunal identified the facts which could lead it to infer less favourable treatment on the grounds of race, it did not identify what that less favourable treatment was. The less favourable treatment cannot have been the failure to inform Mr Ugiagbe about the original grading of his post until November 2006 because that was stated to be one of the facts from which an inference of less favourable treatment could be drawn. So what the Tribunal was apparently finding was that these facts could have led the Tribunal to infer less favourable treatment of Mr Ugiagbe on the grounds of race in a generalised and unparticularised way.
41. Secondly, we do not really know what the Tribunal meant when it referred to "the way that Mr Ugiagbe's whole Agenda for Change banding process was handled by the Trust". It could not have been the failure to inform Mr Ugiagbe of the original grading of his post or the use of the informal process for getting his post downgraded because they were already referred to in the passage. It can therefore only have been Ms Alexander's attempt to enlist Ms Bampoe's help in getting the post downgraded (apart, of course, from the fact that the grading of the post continued to be re-assessed despite its disestablishment, which was the subject of a separate complaint). That ties in with what the Tribunal found in para. 56, namely the fact that Ms Alexander had asked Ms Bampoe in effect to "interfere in the Agenda for Change process that Mr Ugiagbe was awarded a Band 7 or less is a fact that could lead us to infer less favourable treatment on the ground of race". Again, the Tribunal did not identify what that less favourable treatment was. But we proceed on the assumption that what the Tribunal was intending to say in these passages was that Ms Alexander's attempts to get Mr Ugiagbe's post downgraded (a) by an informal process which was not sanctioned by the appropriate protocol and (b) by enlisting Ms Bampoe's help were the facts from which the Tribunal found that it could conclude, in the absence of an adequate explanation, that the Trust had discriminated against Mr Ugiagbe when it kept him uninformed of the original grading for his post. If there were other facts which the Tribunal had in mind as enabling it to draw that inference, we have not been able to identify what they were, though since it would have been wrong for the Tribunal to treat this complaint in isolation of the other complaints which it upheld, it may be that the Tribunal had in mind the facts relating to those other complaints as well.
42. One problem with what we are assuming to be what the Tribunal was saying is that there is no analysis in the Tribunal's reasons of how the facts which the Tribunal had in mind were capable of giving rise to the inference of race discrimination. In other words, there is no analysis in the decision of why those facts were capable of showing that in not informing him that his post had originally been assessed at grade 8A, (a) Mr Ugiagbe had been treated less favourably than someone who was not a black man would have been, or (b) such less favourable treatment had been because Mr Ugiagbe was black. To be blunt, the Tribunal did not explain why the things which Ms Alexander did to get Mr Ugiagbe's post downgraded were capable of showing that if Mr Ugiagbe had not been black, he would have been told much earlier than November 2006 that his post had originally been assessed at grade 8A.
43. Moreover, we do not see why Ms Alexander's attempts to get Mr Ugiagbe's post downgraded should have led to the conclusion that Mr Ugiagbe's hypothetical comparator would not have been kept uninformed about the original grading of the post, and that accordingly the reason why Mr Ugiagbe was kept uninformed about it was because he was black. On the face of it, the most obvious reason why he was kept uninformed about it was because Ms Alexander wanted to get his post downgraded, and that she did not want to tell him about the original grading in the hope that she would be successful in getting his post downgraded.
44. Indeed, when the Tribunal came to its conclusion on whether this complaint of race discrimination had been established, it incorporated thinking very much along those lines. The relevant passage in its decision is para. 132(1), which reads:

"Mr Ugiagbe was not informed about the outcome of the evaluation Agenda for Change process until December [sic]. There was no explanation as to why it took so long. From the facts we conclude that there is a strong likelihood that the delay occurred because Caroline Alexander was seeking to ensure that Mr Ugiagbe was graded as a Band 7 when the job he had been doing should have been graded as a Band 8A which meant that it was not easy to achieve the desired result. We are not sure why the Trust continued to pursue the matter of the Agenda for Change banding of Mr Ugiagbe's now long dis-established post. There was no evidence on why it was necessary to continue grading a job which no longer existed and which Mr Ugiagbe had not been doing since it was dis-established in June. Even if they did have a valid query, which we are not convinced that they had about the initial grading of Band 8A, they should have followed the set consistency-checking protocol, which they failed without adequate explanation to do. The way Mr Ugiagbe's Agenda for Change grading process was handled made it subjective rather than the objective, anonymous process it was designed to be. It is our judgment that this was done on the grounds of Mr Ugiagbe's race and is therefore well-founded." (Emphasis supplied)

45. What this shows is that unsurprisingly the Tribunal did indeed find that it was strongly likely that the reason why Mr Ugiagbe was not informed about the original grading of his post was because Ms Alexander wanted to get the post downgraded. So when at the end of the passage the Tribunal found that "this" was done on the grounds of Mr Ugiagbe's race, the Tribunal was referring to something other than the failure to inform him about the original grading of the post. It is apparent that what the Tribunal was referring to was Ms Alexander's bypassing of the usual method of re-assessing questionable grades, namely by referring the grade to a consistency checking panel – and using instead an informal ad hoc process which lacked anonymity and objectivity. The flaw in the Tribunal's approach is that this was not the complaint of race discrimination which had been identified at the case management discussion as the one to be adjudicated upon. The possible reading of the Tribunal's decision to which we referred in [38] above is indeed the correct one.
46. The Tribunal expanded on its findings in paras. 134-136 as follows:

"134. It is our judgment that Caroline Alexander wanted to have Mr Ugiagbe's post down-graded to a Band 7 and that when the Agenda for Change process did not deliver this result, she asked [Ms] Bampoe to ensure that it happened but as she was not co-operative with this intention, she ensured that Veronica Husband and Claire Strickland did this instead.

135. Mr Ugiagbe is never informed that his post has been graded 8A and that it was in the process of being consistency checked by the Trust. In our judgment Mr Ugiagbe was unique in that regard. The other individuals whose Agenda for Change banding process had taken a long time to complete had all been involved in the process from quite early on. They were told of the initial outcome of the banding process and involved in the appeals, consistency checking process, completion and assessment of a job analysis questionnaire and the rest of the process until … banding was awarded. By contrast, Mr Ugiagbe was not told the result of his Agenda for Change grading exercise when it was first graded 8A on Ms Bampoe's return from sick leave or the second time it came out at grade 8A. Even when he was asked to complete a job analysis questionnaire he was still not told the grade. The Trust decided not to abide by their written policies in this regard and we were given no explanation for this.

136. Even if there was panel fatigue it is not clear why this would prevent Mr Ugiagbe being told about what was happening with the grading of his post. If the Trust believed that an anomaly has arisen through the normal Agenda for Change process then there is no need for the Trust to have created a separate ad hoc and informal procedure for dealing with it as was conducted by Ms Strickland and Ms Husband. There was a protocol already in existence for just that event and we were given no reason for the Trust's failure to follow it. We were told of no-one else's Agenda for Change grading that was dealt with in this way. Also, if there was an objective reason why Mr Ugiagbe's grading needed to be consistency checked then we were given no reason why he was not informed about the Band 8A grade as soon as it was given and involved in the consistency checking process which appears to us to have been the practice in the Trust. There was no explanation given to us, even if the grading was incorrect, for the Trust to decide not [to] inform the post-holder, involve him in the process or not refer the post back to the original or another panel which had been set up for that purpose. We were also not told of any other post which was consistency checked by Ms Husband and Ms Strickland without the post-holder being informed or involved in any way or at all."

47. The Tribunal's findings here are clear. Ms Alexander did not agree with the original grade allocated to Mr Ugiagbe's post. She thought that it should be downgraded. She tried to enlist Ms Bampoe's help. When that failed, she tried to get it downgraded outside the relevant protocol. No other post had been re-assessed in that way, and no explanation was given for that approach. Moreover, Mr Ugiagbe was kept uninformed about things. He was not informed of the grading panel's original assessment or of Ms Alexander's attempts to get the post downgraded. No-one else had been treated in that way, and again no explanation was given for that. It was these findings which fed into the Tribunal's conclusion at para. 137 of its decision:

"The way in which the acting up issue and the Agenda for Change banding process [was carried out] lead us to the judgment that Mr Ugiagbe was being treated differently from his colleagues. It is our judgment this was done on the grounds of Mr Ugiagbe's race."

Accordingly, the Tribunal found in para. 146 that complaint (1) "of less favourable treatment against the Trust" was well-founded.

48. The reference to "the acting up issue" in para. 137 is one to which we shall return, and we have added the words "was carried out" to para. 137 to give it grammatical sense. Although the Tribunal referred to "different" rather than "less favourable" treatment in para. 137, it is plain from para. 146 that it had less favourable treatment in mind. And although it omitted the words "on racial grounds" in para. 146, it must have had that in mind as well. But the conclusions in paras. 137 and 146, derived as they are from paras. 134-136, are in our judgment subject to the same flaws as we have identified about para. 132(1). Although the Tribunal found that the Trust did not give an explanation for keeping Mr Ugiagbe uninformed about the original assessment of his grade, the Tribunal found that the reason for it was because Ms Alexander wanted to have the post downgraded. So the reason why no-one else had remained uninformed about their original grades must have been because, although there was a problem with the grading of their posts, it was not a problem which involved Ms Alexander wanting them to be downgraded. Indeed, that is consistent with what we were told, namely that none of the four members of staff who had problems with the grading of their posts had been managed by Ms Alexander.
49. Finally, in para. 141 of its reasons, the Tribunal compared the treatment of Mr Ugiagbe in this respect with his hypothetical comparator. The Tribunal said:

"That person would have been told the outcome of the Agenda for Change grading process in January when the first grading had been done and informed that the Trust were going to put it through a consistency checking process, if it was thought appropriate, and invited to be part of the process involved in doing so."

The difficulty with that comparison is that it failed to factor into the post of the hypothetical comparator Ms Alexander's wish to have the post downgraded. Like was not being compared with like.

50. (2) "In September 2006 Mr Ugiagbe was not asked to act up fully during the absence of his manager, Zora Bampoe, on sick leave (as he had been asked to [do] previously)". The Tribunal addressed this complaint at the same time as it dealt with complaint (3), which was that Mr Ugiagbe had been bullied by Ms Alexander into attending meetings during Ms Bampoe's absence. The Tribunal's findings on these two complaints are at paras. 132(2) and (3) of its decision:

"No satisfactory explanation was given as to why Mr Ugiagbe had not been asked to act up. He had been asked him [sic] to attend meetings where his expertise and knowledge were useful to the Trust. He was not given the choice as to whether or not he wanted to go to those meetings but in our judgment he was not bullied into going, but rather, he was instructed to do so. It is our judgment that he was asked to fill in for Zora at meetings owing to his 'local knowledge' rather than be given the recognition of 'acting up' in that capacity. It is our judgment that the failure to ask him to officially 'act up' was done on the grounds of his race and is therefore well-founded."

So although the Tribunal in para. 146 purported to uphold complaint (3), in truth it rejected the complaint on the basis that Mr Ugiagbe had not been bullied into attending the meetings. However, it upheld complaint (2), though it gave no reasons for doing so in this passage.

51. The Tribunal gave its reasons for upholding complaint (2) in para. 145 of its decision:

"… in respect of the decision not to allow Mr Ugiagbe to act up for Zora Bampoe, the Trust's case was that Mr Ugiagbe was stressed and sick at the time and that was the reason for their refusal to allow him to act up. Mr Ugiagbe was off sick for a two week period which occurred during the time that Ms Bampoe was off sick which confirms that the decision that he should not be given the opportunity to 'act up' had already been made. In addition, he was asked to do work which he would have done while acting up but not given the recognition which the title would have given him or the benefit in relation to his future within the organisation. This was not in keeping with the Trust's responsibilities under sections 38 and 71 of the Race Relations Act and what [it] should have included in its Race Equality Scheme. We have been given no persuasive reason for this."

52. Unlike complaint (1), the Tribunal did not say in so many words that Ms Alexander's decision not to permit Mr Ugiagbe to act up could justify the conclusion, in the absence of an adequate explanation from her, that the Trust had discriminated against him. In other words, the Tribunal did not specifically say, in respect of this complaint, what its conclusion was at the first stage of the analysis. However, it looks as if the Tribunal was addressing the second stage of the analysis when it came to para. 145 of its decision. We are prepared to assume, therefore, that the Tribunal concluded that the burden had shifted to the Trust. Again, there was no specific reference in para. 145 of the Tribunal's decision to whether Mr Ugiagbe's hypothetical comparator would have been treated in the same way. But since the Tribunal had in paras. 140 and 141 of its decision compared Mr Ugiagbe's treatment in a number of other respects with the way in which his hypothetical comparator would have been treated, we have to proceed on the assumption that the Tribunal found that Mr Ugiagbe's hypothetical comparator would have been allowed to act up during the absence of their manager.
53. It is true that the Tribunal spoke in para. 145 of its decision of the absence "of any persuasive, reasonable non-discriminatory reasons" for Mr Ugiagbe's treatment, and that it was not given a "persuasive" reason for him not being permitted to act up. But that does not mean that the Tribunal's conclusion was based on the fact that Mr Ugiagbe had been treated unreasonably. The Tribunal was saying that there had not been a reasonable explanation for his treatment. It would have been better if it had stuck to the statutory language and talked of the absence of an adequate explanation for its treatment of him, but we do not think that it can fairly be said that the Tribunal fell into "the Zafar trap".
54. It was argued on behalf of the Trust that the explanation which Ms Alexander gave for not permitting Mr Ugiagbe to act up – that Mr Ugiagbe was unwell at the time and suffering from stress – was not rejected by the Tribunal as untrue. The Tribunal simply regarded the explanation as "unsatisfactory". We do not agree. We read the Tribunal as having reasoned in para. 145 that since Mr Ugiagbe did not go on sick leave himself until after Ms Bampoe went on sick leave, there must have been a time during which he could have acted up for her when he was able to. There must therefore have been some other reason why Ms Alexander in the period between Ms Bampoe going on sick leave and Mr Ugiagbe going on sick leave did not permit Mr Ugiagbe to act up for her. Having said that, this reasoning was inconsistent with those parts of Ms Alexander's evidence which the Tribunal did not reject. Her evidence was that Mr Ugiagbe went on sick leave only three days after Ms Bampoe's sick leave began. That gave very little time for him to have acted up for her. Moreover, his sick leave was due to stress – caused at least in part by concern over his future following the disestablishment of his post – and Ms Alexander's evidence was that his stress was very apparent.
55. There is another reason for our conclusion that the Tribunal's ruling on complaint (2) cannot be upheld. It relates to the first stage of the analysis. We have not discerned any basis on which the Tribunal could have decided that, on the facts which the Tribunal found proved, the Tribunal could conclude in the absence of an adequate explanation that the Trust had discriminated against Mr Ugiagbe. We have not seen any material difference between what happened while Ms Bampoe was on sick leave in 2005 and what happened when she went on sick leave in 2006. On both occasions, Mr Ugiagbe was assigned some of her duties. On neither occasion were formal acting-up arrangements in place. The Tribunal said that in 2005 he had in effect been acting up for her, but we do not know on what that was based, or what it meant, or what practical effect it had, and we have not seen how that differed from what happened in 2006. The flaw in the Tribunal's reasoning was that, to the extent that it thought that race discrimination could be inferred because of the difference in treatment between 2005 and 2006, we have not discerned any basis on which it could be said that there was such a difference in treatment.
56. (4) "In September 2006 part of Mr Ugiagbe's role was handed to Melanie Warner by Ms Alexander and Dr Russell". This complaint related to the recruitment of Ms Warner to run the PLT programme. As we shall see, the Tribunal's findings on this complaint went beyond the complaint itself and dealt with the recruitment of Yvonne Waterhouse and Adrienne Fitzgerald as well, even though there was no specific complaint in respect of their recruitment. Unlike complaint (2), the Tribunal specifically identified its conclusion on this complaint at the first stage of the analysis. At para. 53 of its decision, the Tribunal said:

"We find that both Yvonne Waterhouse and Melanie Warner were white women who were recruited outside of the Trust's normal Equal Opportunities recruitment procedures. Both appear to have been recruited within a short space of time and to fulfil what the Trust perceived to be immediate need. However, both women were recruited to perform tasks that Mr Ugiagbe could have performed and were within the remit of his previous job although that had now been dis-established as a result of the reorganisation that was ongoing at this time. We find that the recruitment of Melanie Warner and Yvonne Waterhouse by Douglas Russell and Caroline Alexander are [sic] facts that could lead us to infer less favourable treatment against Mr Ugiagbe by the Trust."

Like complaint (1), the Tribunal did not spell out what that less favourable treatment was, but presumably it was the recruitment of Ms Warner to take over the PLT programme.

57. When it came to the second stage of the analysis, the relevant passage in the Tribunal's decision was para. 132(4):

"The Trust did take the administration of the PLT away from Mr Ugiagbe and give it to Melanie Warner. Yvonne Waterhouse was also recruited to assist with work which Mr Ugiagbe could have done. This would have been at variance with is [sic] in contravention of the Trust's Equal Opportunity Policy in relation to recruitment. By doing this they effectively took away his job. Adrienne Fitzgerald, Melanie Warner and Yvonne Waterhouse were both [sic] white. Our judgment is that the failure to give Mr Ugiagbe these pieces of work and to recruit these women instead was on the grounds of his race and is therefore well-founded."

In para. 141 the Tribunal dealt with how a hypothetical comparator would have been treated. It said: "It is our judgment that a hypothetical comparator would not have their duties taken away from them in the way that the PLT was ….." The Tribunal acknowledged in para. 145 that it was for the Trust in exercising its powers of management to decide how work should be allocated, but when it came to deal with what it understood to be the Trust's explanation for the recruitment of Ms Warner to run the PLT programme, the Tribunal said:

"The Trust's decision [sic] for doing so was that Mr Ugiagbe was incompetent and lacked mental capacity. As no evidence was provided for those we conclude that those decisions [complaint (5) as well as complaint (4)] were made on the grounds of Mr Ugiagbe's race."

The word "decision" is obviously a mistake for "explanation".

58. At the first stage of the analysis, the Tribunal's finding that Ms Warner was recruited outside the Trust's normal recruitment procedures to perform duties which came within Mr Ugiagbe's remit was the critical component in the Tribunal's conclusion that her recruitment was something from which race discrimination could be inferred. However, where the Tribunal got the idea that Ms Warner had been recruited outside the Trust's normal recruitment procedures is not possible to tell. The evidence of both Ms Alexander and Dr Russell was that Ms Warner was already employed by the Trust as the Head of Learning and Development. Although Mr Ugiagbe had previously run the PLT programme in his post as Practice Development Facilitator, the disestablishment of the post resulted in the post's functions having to be allocated to other posts. That part of the post's functions relating to the running of the PLT programme was added to the responsibilities of the Head of Learning and Development. That was how, on the Trust's case, Ms Warner came to perform that function. Far from being recruited from outside, she performed those functions because they were allocated to the post she already held as a result of the disestablishment of Mr Ugiagbe's post.
59. There is no reference to any of this in the Tribunal's decision. If the Tribunal had rejected the evidence of Ms Alexander and Dr Russell on this topic, we would have expected it to say that and to explain why. We are left with the uncomfortable feeling that the Tribunal overlooked this evidence.
60. There is another problem with the Tribunal's approach to this complaint. In para. 145 the Tribunal referred to what Ms Bampoe was told when she met Ms Alexander and Dr Russell on 1 August 2006. She was told that Mr Ugiagbe was incompetent, and Dr Russell added that in his view Mr Ugiagbe was "lacking in mental capacity". If Mr Ugiagbe's perceived incompetence and lack of mental capacity had been the reasons why the running of the PLT programme had been removed from him, his race would not have been the reason for it.
61. (5) "In September 2006 a major area of Mr Ugiagbe's job was coming to an end and Ms Alexander did not offer suitable alternative work". This complaint related to Ms Alexander's failure to allocate to Mr Ugiagbe alternative work when the running of the PLT programme had been assigned to Ms Warner. Like complaint (2), the Tribunal did not say in so many words that Ms Alexander's failure to allocate Mr Ugiagbe alternative work could justify the conclusion, in the absence of an adequate explanation from her, that the Trust had discriminated against him. In other words, the Tribunal did not specifically say, in respect of this complaint, what its conclusion was at the first stage of the analysis. However, as with complaint (2), it looks as if the Tribunal addressed the second stage of the analysis in various passages towards the end of the decision, and we are prepared to assume, therefore, that the Tribunal concluded that the burden had shifted to the Trust.
62. In para. 132(5), the Tribunal said:

"There is no reason given as to why he was not given alternative work after the PLT had been taken away from him and his other work came to an end. Our judgment is that this was done on the grounds of Mr Ugiagbe's race and is therefore well-founded."

In para. 141, the Tribunal dealt with how a hypothetical comparator would have been treated. It said:

"It is our judgment that a hypothetical comparator would not have their duties taken away from them in the way that the PLT was or duties that they could do not given to them in the way that Yvonne Waterhouse was brought in to assist Ms Alexander with work while he waited for his post to be graded and a re-organisation was taking place. In that case the evidence shows that the Trust would have done all in their power to keep that person occupied with work and to engage and actively support them through the process."

In para. 145, the reference to Mr Ugiagbe's incompetence and lack of mental capacity was linked to this complaint, as it had been linked to complaint (4).

63. The Tribunal found that some of the tasks which had been within Mr Ugiagbe's remit were allocated by Ms Alexander to Ms Waterhouse, but Ms Alexander's evidence about this complaint was that she was not keen to overwhelm Mr Ugiagbe with other work at a time when he appeared to be very stressed by the disestablishment of his post. She therefore wanted to ensure that he was able to cope with the work he was given, and in fact gave him some projects to do until he was re-deployed. For the Tribunal to uphold this complaint, it had to find that the Trust had not proved that Ms Alexander's explanation was true. In fact, there is no reference to Ms Alexander's evidence on this topic in the Tribunal's decision, let alone any scepticism of its truth.
64. There are two other problems with the Tribunal's approach to this complaint. First, although we have assumed that the Tribunal found that the burden of proof had shifted to the Trust, the Tribunal gave no reasons for that. In other words, the Tribunal did not explain why Ms Alexander's failure to allocate Mr Ugiagbe alternative work when the running of the PLT programme had been assigned to Ms Warner was capable of amounting, in the absence of an adequate explanation, to an act of race discrimination. To be blunt, the Tribunal did not say why it could be inferred that it was because Mr Ugiagbe was black that he was treated in that way. It is difficult for us, therefore, to exclude the possibility that the Tribunal inferred that race had played a part in Mr Ugiagbe's treatment simply because it had been unreasonable for the Trust not to allocate other work to him. The other problem with the Tribunal's approach to this complaint is the same one which affected its approach to complaint (4) and which is referred to in [60] above. What we said there applies to complaint (5) as well.
65. (12) "[Dr] Russell claimed that Mr Ugiagbe 'lacked mental capacity' during 2006 and used negative language about Mr Ugiagbe and his intelligence in Mr Ugiagbe's presence and the presence of others". This complaint related to Dr Russell's comment to Ms Bampoe on 1 and 2 August 2006 that Mr Ugiagbe was "lacking in mental capacity". There is nothing in the Tribunal's decision which suggests that there was any other occasion on which Dr Russell commented on Mr Ugiagbe's intelligence either in his presence or in the presence of anyone else. Like complaints (2) and (5), the Tribunal did not say in so many words that Dr Russell's comment about Mr Ugiagbe's mental capacity and intelligence could justify the conclusion, in the absence of an adequate explanation from Dr Russell, that the Trust had discriminated against him. In other words, the Tribunal did not specifically say, in respect of this complaint, what its conclusion was at the first stage of the analysis. However, as with complaints (2) and (5), it looks as if the Tribunal addressed the second stage of the analysis in various passages towards the end of the decision, and we are prepared to assume, therefore, that the Tribunal concluded that the burden had shifted to the Trust.
66. We should mention one thing here before we come to those passages. It will be recalled that Dr Russell's "Wow! Big deal!" comment was regarded by Ms Williams as an unduly dismissive remark about Mr Ugiagbe's degrees. The Tribunal said in para. 65 of its decision:

"The fact that [Dr Russell] has been told to apologise by the Chief Executive for a comment which was considered inappropriate and continues to refuse to do so is a fact from which we can infer less favourable treatment on the grounds of race."

We make two comments on that finding. First, like complaints (1) and (4), the Tribunal did not spell out what that less favourable treatment was. Presumably it was the "Wow! Big deal!" comment. The difficulty with that is that the "Wow! Big deal!" comment was not among the 26 acts of race discrimination which Mr Ugiagbe alleged. Secondly, the Tribunal's finding was based on a misapprehension of the evidence. As we said at [15] above, Ms Williams had not required Dr Russell to apologise to Mr Ugiagbe. Indeed, the Tribunal compounded that error in para. 139 when it said: "Although Ms Williams found that Douglas Russell had made an inappropriate comment about and to Mr Ugiagbe and he should apologise, he never did and was never made to do so."

67. The relevant passages in the Tribunal's decision about this complaint are in paras. 132(12) and 141. Para. 132(12) reads:

"In our judgment this was said. We found it to be dismissive and disparaging. We have found no non-discriminatory reason or justification for Douglas Russell speaking about or to Mr Ugiagbe in this way. It is our judgment that Douglas Russell felt that it was acceptable to speak to [sic] Mr Ugiagbe in this way because of his race and that it is therefore an act of less favourable treatment by him of Mr Ugiagbe. It is therefore well-founded."

The word "to" should read "of" because there is no finding by the Tribunal that Dr Russell referred to Mr Ugiagbe's "lack of mental capacity" in his presence. And in para. 141, the Tribunal said:

"… [Mr Ugiagbe's] hypothetical comparator would not have been described by [Dr] Russell in his/her presence as lacking in mental capacity, even if they were not performing well at their job."

68. How dismissive and disparaging the remark that Mr Ugiagbe was "lacking in mental capacity" was depended on what it meant. We have noted in [14] above what the Tribunal thought it meant, but we think that the Tribunal took the words far too literally. It is not without significance that when this complaint was first formulated at the case management discussion, Mr Ugiagbe's mental capacity was linked to his intelligence. The Tribunal's comment that Dr Russell was being dismissive and disparaging of Mr Ugiagbe has to be seen in that light. The same is true of Ms Bampoe's comments that she had not heard Dr Russell describe a white colleague in such disparaging terms.
69. As we understand it, complaint (12) was not that Dr Russell expressed a view about Mr Ugiagbe's mental capacity which he did not genuinely hold. The complaint related to the fact that he expressed his view about Mr Ugiagbe's mental capacity in a disparaging and dismissive way. From the language the Tribunal used in para. 132(12), we think that this was the Tribunal's view as well. However, in considering whether Dr Russell would have expressed his view about the mental capacity of someone who was not black in such a disparaging and dismissive way, the nature of the lack of mental capacity is important. It is one thing to say about someone that he is not very bright. One might say that about someone irrespective of their racial origin. It is quite another thing to say of someone that from a psychiatric point of view their mental capacity is questionable. That is not something which you are likely to say irrespective of someone's racial origin, because of the danger that you might be accused of thinking that people of a particular racial origin lacked mental capacity. So when the Tribunal said in para. 132(12) that Dr Russell "felt that it was acceptable to speak [of] Mr Ugiagbe in this way because of his race", the Tribunal may have come to a very different view about whether Dr Russell would have felt it acceptable to speak of Mr Ugiagbe's intellectual abilities because of his race. The same applies to the Tribunal's comment in para. 141. It may be that Dr Russell would not have described Mr Ugiagbe's hypothetical comparator as someone whose mental capacity was questionable in psychiatric terms, but the Tribunal may have come to a very different view about how he would have described Mr Ugiagbe's hypothetical comparator's intellectual prowess. In the circumstances, the Tribunal's approach to this complaint was flawed because the premise on which it proceeded – namely that Dr Russell was talking in psychiatric terms about Mr Ugiagbe's faculties – was false.
70. (14) "Dr Russell undermined Mr Ugiagbe in a PLT management meeting by announcing that Melanie Warner was taking over the management of PLT from Mr Ugiagbe". This complaint speaks for itself. It relates to the announcement Dr Russell made at the meeting on 27 July 2006. There is only one reference to this complaint in that part of the Tribunal's decision which relates to its conclusions. It is para. 132(14), which reads:

"This did occur. We were given no reason why [Dr] Russell chose to do this in this meeting rather than wait until the consultation on the Commissioning a Patient-led NHS had completed. It may have been because he was enthusiastic about the new arrangements which he was putting into place but he did not consider Mr Ugiagbe when he made that announcement and had not considered telling Mr Ugiagbe before-hand and it [is] this lack of consideration which we judge arose out of [Dr] Russell's attitude to Mr Ugiagbe which we found is based on Mr Ugiagbe's race. This complaint is therefore well-founded."

71. Like many of the other complaints, the Tribunal did not say in so many words that Dr Russell's conduct could justify the conclusion, in the absence of an adequate explanation from him, that the Trust had discriminated against him. Nor is there any specific reference to whether Mr Ugiagbe's hypothetical comparator would have been treated in the same way. But we are prepared to assume that the Tribunal concluded that the burden of proof had shifted to the Trust, and that Mr Ugiagbe's hypothetical comparator would not have been treated in the same way.
72. It is argued on behalf of the Trust that the complaint which the Tribunal found proved was not the same one as complaint (14). Whereas complaint (14) was about Dr Russell undermining Mr Ugiagbe in the presence of others, the complaint which the Tribunal upheld was about his lack of consideration for Mr Ugiagbe which arose out of his attitude towards him because of his race. We reject this criticism of the Tribunal. Dr Russell's lack of consideration for Mr Ugiagbe simply took the form on this occasion of undermining him in the presence of others. The latter was just an example of the former.
73. The problem with the Tribunal's approach, though, was its conclusion that Dr Russell's attitude to Mr Ugiagbe was based on Mr Ugiagbe's race. The Tribunal did not explain why it reached that conclusion. Of course, once the burden of proof had shifted, it was for the Trust to prove that Dr Russell's attitude to Mr Ugiagbe was not based on Mr Ugiagbe's race. But on what basis could the Tribunal have found that, on the primary facts which were proved, it could conclude that, in the absence of an adequate explanation from Dr Russell, his attitude to Mr Ugiagbe was based on Mr Ugiagbe's race? How could the Tribunal have excluded the possibility that it was based on Dr Russell's belief that Mr Ugiagbe was incompetent? What were the primary facts on which the Tribunal could infer that Dr Russell's attitude to Mr Ugiagbe was based on Mr Ugiagbe's race? And if Mr Ugiagbe was being treated less favourably than his hypothetical comparator, the Tribunal does not appear to have factored into the attributes of the hypothetical comparator someone whose lack of competence was comparable to what Dr Russell believed to be Mr Ugiagbe's lack of competence.
74. (19) "Mr Ugiagbe was downgraded from his current band 8A to band 7 instead of being banded at a higher grade than band 8A". The Tribunal did not treat this complaint as relating to the decision of the grading panel on 30 November 2006 to downgrade Mr Ugiagbe's disestablished post to grade 7. It treated this complaint as a complaint that the Trust continued to re-assess the grade for the post despite the fact that it had been disestablished in the summer of 2006. In other words, the fact that the post had been disestablished was ignored by Ms Alexander in her determination to get the post downgraded. That this was how the Tribunal treated the complaint is apparent from its finding at para. 132(19):

"In our judgment this is true. Mr Ugiagbe was expecting it to be higher than band 8A and certainly higher than band 7. This grading we find also takes him out of management and so is quite a significant change in his situation. We were not given a persuasive reason as to why the Trust continued with the banding exercise after the post was dis-established. The banding exercise is supposed to be about the post rather than the post holder and should no longer be necessary once the post had ceased to exist. In our judgment the only reason for continuing with the process at that time was, with the intention of ensuring that it came out at a band 7 which had been Ms Alexander's stated aim from the beginning. We find that this was done on the grounds of Mr Ugiagbe's race and is well-founded."

75. Like many of the other complaints, the Tribunal did not say in so many words that Ms Alexander's insistence on the post being re-assessed despite its disestablishment could justify the conclusion, in the absence of an adequate explanation from her, that the Trust had discriminated against Mr Ugiagbe. Nor was there any specific reference to whether Mr Ugiagbe's hypothetical comparator would have had the grading for his post re-assessed in similar circumstances. But we are prepared to assume that the Tribunal concluded that the burden of proof had shifted to the Trust, and that Mr Ugiagbe's comparator would not have been treated in the same way.
76. The problem with the way the Tribunal treated this complaint is that we doubt very much whether it was the way the parties had looked at it. They did not regard the complaint as focusing on the fact that the post had been disestablished. Ms Alexander's witness statement (and Dr Russell's for that matter) did not address at all the question of why the grade for the post continued to be assessed despite its disestablishment. Indeed, even after the Tribunal's decision had been promulgated, it was still not apparent to the parties that this was what the Tribunal had regarded as the focus of complaint (19). The impact of the disestablishment of the post on the continuing need or otherwise for its grade to be re-assessed was not addressed in the skeleton argument of either Mr Benjamin Uduje for Mr Ugiagbe or Ms Simler. We are left with the uncomfortable feeling that the Tribunal dealt with complaint (19) in a way which had not been appreciated by the parties, and which they did not address. For example, if the Trust had realised what the Tribunal thought the complaint was about, the Trust would have ensured that Ms Alexander explained why she wanted the grade for the post to be re-assessed despite the post's disestablishment.
77. (20) "Mr West and Ms Alexander threatened Mr Ugiagbe at a meeting in November 2006 that he would dismiss Mr Ugiagbe and would withdraw the redundancy entitlements if Mr Ugiagbe appealed his banding. He told Mr Ugiagbe that an appeal would not lead to the banding coming out higher than band 7". It is unclear what the threat about withdrawing Mr Ugiagbe's "redundancy entitlements" meant. Was Mr Ugiagbe being threatened that his dismissal would be treated as a dismissal for a reason other than redundancy, so that Mr Ugiagbe would not be entitled to a redundancy payment at all? Or was he being threatened that, although his dismissal would still be treated as a dismissal for redundancy, he would not be entitled to a negotiated redundancy package, but only the statutory redundancy payment? In fact, it was neither of the two, because what the Tribunal actually found was that Mr Ugiagbe was merely told that if he lost any appeal which he lodged against the re-assessed grade for his post, his redundancy payment would be calculated on the basis that his post was a grade 7 one.
78. The primary facts which the Tribunal found show that in making this complaint Mr Ugiagbe got the sequence of events wrong. There were two meetings: the first was on 20 November 2006 and the second was on 13 December 2006. The grade for his post had not been re-assessed by the first meeting. It had only been re-assessed by the second. And it was at the first meeting that Mr Ugiagbe was told that he would be made redundant. It was not a case of him being threatened with redundancy. Indeed, the Tribunal treated complaint (20) as a complaint relating to a threat which Mr Ugiagbe alleged was made at the meeting on 13 December 2006 about what Mr West would do if Mr Ugiagbe appealed against the re-assessment of the grading of his post at grade 7.
79. The Tribunal's findings on this complaint are at para. 132(20) of its decision:

"At that meeting Mr Ugiagbe was told that if he chose to remain employed by the Trust and appeal against his band 7 grading and lost that appeal, he would find that any redundancy payment he received at the end of that process would be a reduced sum compared to the sum that was proposed on that day, as it would be calculated using the band 7 rate of pay. His redundancy would be delayed while he pursued the appeal. Mr Ugiagbe drew the conclusion from that statement that he was being threatened by the Trust. They were presenting him with the options – all of which were negative as far as he was concerned but it is not our judgment that he was actually threatened. The Trust appeared to be in a hurry to conclude matters with Mr Ugiagbe and he was not given any time to consider his options or to seek advice. They also do not appear to have communicated with him properly. Mr Ugiagbe's union representative who was with him at that meeting appears not to have been that helpful to him either, as at no time during that meeting did he confer privately with Mr Ugiagbe to ensure that he understood what was happening. It is our judgment that the way the options were presented to Mr Ugiagbe was deliberately done to ensure that he accepted redundancy and that this was done on the grounds of his race and is well-founded."

80. This passage shows that the discriminatory conduct which the Tribunal upheld was rather limited. It was not what he was being threatened with which constituted the discrimination. Indeed, the Tribunal found that he had not been threatened with anything, let alone threatened with the withholding of his redundancy entitlements. Nor were the options which the Trust did give him discriminatory. The discrimination consisted of the way the options were presented to him – which the Tribunal found was done to ensure that he went along with his redundancy. And the feature of the manner in which the options were presented to him which amounted to the discrimination was that he was being required to make up his mind there and then, which meant that he could not take advice on the matter and consider in an unhurried way which of the options he should go for. That is a very different complaint from the one which the Tribunal was being asked to adjudicate on. It was not the one which the Trust had had to address. This was classically an example of the Tribunal doing the very thing which the Court of Appeal in Chapman v Simon said the Tribunal should not do.
81. (22) "Mr Ugiagbe applied for the jobs of Head of Professional [Development] and Associate Director of [Clinical Leadership and] Workforce Development but was not invited for interview and no explanation given to him as to what happened to his applications". These were the two posts created following the restructuring of posts as a result of the Commissioning a Patient-led NHS initiative. They were ring-fenced for Mr Ugiagbe and Ms Bampoe. It will be recalled that the Tribunal found that Mr Ugiagbe applied for both those posts. He had not been interviewed for either of them by the time his employment with the Trust came to an end. Although the Tribunal did not refer to this in its decision, the unchallenged evidence of Ms Alexander was that the post of Head of Professional Development was a grade 8B post (having been originally assessed as a grade 8A post), and the post of Associate Director of Clinical Leadership and Workforce Development was a grade 8C post.
82. The Tribunal acknowledged that the explanation which Ms Alexander gave for not interviewing Mr Ugiagbe earlier for either of the two posts was that the Trust needed to know whether Ms Bampoe would be applying for either or both of them before making arrangements to interview Mr Ugiagbe. Indeed, in para. 80 of its decision, the Tribunal noted that on 18 September 2006 Ms Alexander had written to Mr Ugiagbe to tell him, among other things, that there would be a slight delay in confirming interview dates. That was because Ms Bampoe "was on sick leave", and she needed to confirm Ms Bampoe's "intentions" before she could "finalise arrangements", which she agreed to do as soon as possible.
83. The Tribunal rejected that explanation on the basis of what Ms Bampoe had said in a letter which she wrote on 18 September 2006 to Ms Alexander. In that letter, she said that both of the new posts were a "75% fit to my existing post". She was therefore saying that she should have been automatically allocated one of the two posts without having to apply for them. What the Tribunal found about that in para. 81 of its decision was this:

"We have had sight of correspondence between the Trust and Zora Bampoe from September 2006 which demonstrates that she was initially pursuing an informal and then in October a formal grievance process with the Trust and had made it quite clear that she had no intention of applying for either jobs as presently drafted as she believed that she ought to have [been] assimilated into the senior post (Graded at Band 8D). She stated that she had been unfairly treated in general throughout the whole process. The Trust had no indication from her that she was ever going to submit an application for either job. In those circumstances, the fact that the Trust had effectively refused to interview Mr Ugiagbe for a role for which he had been ring-fenced, for which he was the sole applicant and for which he must have been qualified, for a period of 4 months (August to December) and left him in an indeterminate state for that period of time is a fact from which the Tribunal could infer less favourable treatment on the grounds of race."

84. This was, therefore, the Tribunal's finding at the first stage of the analysis. As we understand it, the Tribunal's reasoning was that Ms Bampoe had made it clear that she had no intention of applying for either of the posts, and so there was no need for Ms Alexander to put off interviewing Mr Ugiagbe further.
85. The Tribunal's conclusion at the second stage of the analysis is at para. 132(22) of its decision:

"The Trust failed to interview Mr Ugiagbe for either post for which he had been ring-fenced from August 2006. There is no persuasive reason as to why they failed to do so. In our judgment, this did not happen because of Zora Bampoe as her clear evidence to us was that she was not interested in applying for either post as she believed that she should have been assimilated into the 8d post and should not have been forced into an open recruitment for it. The correspondence between the Trust and Ms Bampoe that we saw confirms this. This reorganisation is being spearheaded by Caroline Alexander and Douglas Russell. It is our judgment that the failure to interview him and appoint him to even the more junior of the two posts is an act of less favourable treatment on the grounds of his race and is therefore well-founded."

86. In our view, there are two problems with the Tribunal's approach to this complaint. First, Ms Bampoe's letter of 18 September 2006 went on to say that she was not well enough to discuss "work issues" at the time. She therefore wanted to defer discussing them until she had recovered from her ill-health. Accordingly, the Trust's case in the Tribunal was that it was not until Ms Bampoe had returned to work, and had been able to discuss with Ms Alexander whether her assessment of the match between the new posts and her previous post was correct, that Mr Ugiagbe could be interviewed, because it would not be known until then whether Ms Bampoe could be allocated one of the posts automatically. Indeed, when expressing her conclusion in February 2007 (and therefore after Mr Ugiagbe's employment had come to an end) on the formal grievance which Ms Bampoe had raised, Ms Williams had said that when Ms Bampoe was fit enough to return to work, she should be "slotted into" the post of Head of Professional Development. That reinforced the Trust's point that it was premature to interview Mr Ugiagbe for the posts until it was known whether one would be regarded as a sufficient match with Ms Bampoe's previous post to justify allocating it to her automatically. We have not discerned any consideration of that in the Tribunal's decision.
87. Secondly, the Tribunal did not explain why Mr Ugiagbe was treated less favourably than his hypothetical comparator would have been. To be blunt, the Tribunal did not say why it could (at the first stage of the analysis), and indeed should (at the second stage of the analysis), be inferred that it was because Mr Ugiagbe was black that he was not interviewed for the posts. Even if the explanation advanced by the Trust was not to be accepted – and as we have said the Tribunal did not address that explanation at all – an equally plausible possibility was that Ms Alexander did not think that Mr Ugiagbe was sufficiently competent to perform the duties of either post.
88. (25) "Ms Alexander had previously put Ms Bampoe under pressure to dismiss Mr Ugiagbe from the Trust". This is a curious allegation. Ms Bampoe would not have been able to dismiss Mr Ugiagbe from the Trust herself, and one of the possibilities is that the allegation was along the lines that Ms Alexander put pressure on Ms Bampoe to support the proposal that Mr Ugiagbe should be dismissed for redundancy. Another possibility is that the complaint did not relate to his dismissal at all, but it related to Ms Alexander's attempts to enlist Ms Bampoe's help in getting Mr Ugiagbe's post assessed at grade 7 by looking at the job description for the post. However, the Tribunal did not think that the allegation related to either of these possibilities. The Tribunal thought that the allegation related to something else altogether, because its finding in respect of this allegation at para. 132(25) of its decision reads as follows:

"It is our judgment that Ms Alexander did put pressure on Ms Bampoe to manage Mr Ugiagbe out of the Trust but that she refused. Mr Ugiagbe was never told about this at the time. We find that this occurred because of Mr Ugiagbe's race and is therefore well-founded."

So the Tribunal thought that the allegation was that Ms Alexander put pressure on Ms Bampoe "to manage Mr Ugiagbe out of the Trust".

89. We do not know what that means. We can only guess that what the Tribunal had in mind was that Ms Bampoe was put under pressure by Ms Alexander to manage Mr Ugiagbe in such a way that either he chose to resign, or that his duties became so restricted that his dismissal for redundancy might be justified. But that is simply guesswork on our part. The truth is that we have no idea what the Tribunal meant.
90. But whatever the Tribunal meant, there are a number of problems with the Tribunal's approach. First, the complaint that Ms Alexander put pressure on Ms Bampoe to manage Mr Ugiagbe out of the Trust was not the complaint of race discrimination which had been identified at the case management discussion as the one to be adjudicated upon. It was therefore not appropriate for the Tribunal to adjudicate on it. Secondly, the Tribunal made no findings of primary fact which related to any pressure exerted by Ms Alexander on Ms Bampoe to manage Mr Ugiagbe out of the Trust. The Tribunal only found that Ms Alexander tried to enlist Ms Bampoe's help in getting Mr Ugiagbe's post downgraded. Thirdly, the Tribunal presumably found – though it did not say so in so many words – that Ms Alexander would not have exerted pressure on the manager of Mr Ugiagbe's hypothetical comparator to manage his comparator out of the Trust. But the Tribunal did not explain why it came to that conclusion. To be blunt, the Tribunal did not say why Mr Ugiagbe was singled out for that treatment because he was black. An equally plausible possibility was that Ms Alexander wanted Mr Ugiagbe managed out of the Trust because she thought he was incompetent.

The discriminatory nature of Mr Ugiagbe's dismissal

91. The Tribunal found that Mr Ugiagbe was dismissed because of his race. Its reasons for that finding were set out in paras. 124-125 of its decision:

"124. It is our judgment that at the time of Mr Ugiagbe's dismissal he was not redundant. There was work that he could have done although Melanie Warner and Yvonne Waterhouse and subsequently Adrienne Fitzgerald, among others were performing the tasks that he could have performed until the Trust were ready to recruit to the ring-fenced jobs.

125. The findings which we have made lead us to conclude that Mr Ugiagbe's race was a feature in the Trust's treatment of him and his managers' relationship with him. Caroline Alexander and Douglas Russell considered that Mr Ugiagbe was incompetent and lacked mental capacity or sufficient 'energy' to perform his job. However, they were unable to point to any evidence in support of these descriptions of him. Mr Ugiagbe had applied for both jobs for which he had been ring-fenced but was [sic] for which he was never interviewed. After the closing date for applications had passed and Ms Bampoe had made it quite clear that she was not interested in making an application for either job, there was no reason for Mr Ugiagbe not to be interviewed for at least one of the jobs, even if the Trust wanted to continue trying to persuade Ms Bampoe to apply for one. To leave him 'hanging on' in an indeterminate, uncertain way for months as they did was failing in their duty of care towards a senior employee. This leads us to conclude that the Trust's decision to dismiss Mr Ugiagbe was on the grounds of his race."

92. The problem with this passage is that the findings which the Tribunal had made about the other treatment of Mr Ugiagbe contributed to its conclusion that his race had played a part in his dismissal. That was an entirely permissible approach to take in the light of Rihal. However, the Tribunal regarded as particularly important the fact that Mr Ugiagbe had not been interviewed for the two posts which had been ring-fenced for him and Ms Bampoe – repeating the error made elsewhere in the decision about Ms Bampoe having made it clear that she was not interested in applying for either post, when it was not as if she did not want either post, only that she thought that she should not have to apply for them. And if the Tribunal's other findings are suspect – as this judgment shows they are – a critical factor underpinning the Tribunal's conclusion that his dismissal was discriminatory is undermined.
93. Moreover, the Tribunal noted that Ms Alexander and Dr Russell both considered that Mr Ugiagbe was incompetent or that he lacked "mental capacity" or "sufficient energy" to perform his current job. The Tribunal did not say that it disbelieved their evidence. In other words, although the Tribunal doubted whether their views about Mr Ugiagbe were correct because of the absence of any evidence to support their views about him, it did not doubt that their views about him were genuinely held. In the circumstances, there was another reason why Mr Ugiagbe might have been dismissed, namely Ms Alexander's and Dr Russell's belief that he was incompetent, even if it would have been unfair to dismiss him for that reason. The Tribunal did not explain why that possibility was rejected.

Conclusion

94. For these reasons, we have concluded that none of the Tribunal's findings of race discrimination can stand, because the Tribunal's conclusions on each of the complaints of race discrimination which it upheld were infected by errors in its approach which can only be characterised as errors of law. The Trust's appeal must therefore be allowed, and the findings of race discrimination made by the Tribunal must be set aside. Ms Simler argued that in those circumstances we should substitute for the findings made by the Tribunal findings that the Trust had not discriminated against Mr Ugiagbe. That was argued, we think, more in hope than in expectation, because the one thing which cannot be said is that on the primary facts which the Tribunal found the only conclusion was that Mr Ugiagbe had not been discriminated against by the Trust. The case has to be remitted to the Tribunal, and the only question is what the nature of that remission should be.
95. If the problems with the Tribunal's judgment were limited to its failure to give reasons for its conclusions that Mr Ugiagbe's treatment was attributable to his race, we might have been inclined to remit the case to the Tribunal for it to give those reasons. But in many instances we have found the Tribunal's judgment to be flawed for reasons relating to its approach. Even then, we might have been prepared to remit the case to the Tribunal for it to reconsider the complaints of race discrimination in the light of this judgment. But we do not believe that to be the appropriate course to take in a case where the Tribunal's approach has been as flawed as we have found it to be. In any event, we think that this is a case in which, having concluded that the Trust discriminated against Mr Ugiagbe in many respects, the members of the Tribunal might be tempted, albeit completely unconsciously, on re-visiting the issues which the case raises to decide those issues in a way which would not alter significantly the ultimate outcome of the case. We therefore conclude that the case should be re-heard by a differently constituted Tribunal. We very much regret the inconvenience which this will cause and the expense which it will incur, but we do not think that we have any real alternative. It goes without saying that the Tribunal will only be considering the complaints which have been the subject of this appeal. It will not be open to the Tribunal to reconsider the fairness of Mr Ugiagbe's dismissal or the complaints of race discrimination which the Tribunal dismissed.