SUMMARY
RACE DISCRIMINATION
Direct
Comparison
The Appellant was found to have been guilty of direct race
discrimination arising from specific incidents of racial abuse and failure to
consider his grievances properly while promptly investigating allegations
against him. There were 15 grounds of appeal - attacking the Employment Tribunal’s
finding as to a contributory act, as to comparators and as to factual
conclusions. Held - none of the grounds succeeded. No new principle involved.
HIS HONOUR JEFFREY BURKE
QC
Introduction
1.
This is an appeal by the Respondent before the Employment Tribunal,
Southern Cross Healthcare, against the Judgment of the Employment Tribunal
sitting at Newcastle-upon-Tyne, chaired by Employment Judge Shepherd and sent
with written Reasons to the parties on 29 November 2010 after a three‑day
hearing earlier in that month. By that Judgment the Employment Tribunal found
that the Claimant, Mr Owolabi, had been the victim of direct racial
discrimination by the Respondent. They awarded him £10,000 compensation for
injury to feelings, £2,000 compensation for psychiatric injury and a sum of
£5,600‑odd for loss of earnings; and they made a recommendation about
which there is now no issue.
Grounds of appeal
2.
By their amended grounds of appeal the Respondent (as we will call the Appellant,
for they were the Respondent before the Tribunal) have put forward 15 grounds
of appeal, which are advanced under the following broad heads.
3.
Ground 1 asserts that the Tribunal considered and adjudicated upon
claims of discrimination which had not been raised in the Claimant’s claim form
and, more specifically, in his further and better particulars of his claim
form, provided pursuant to an order of the Tribunal; and the Tribunal,
therefore, had no jurisdiction to adjudicate on that part of the claim.
4.
Grounds 2‑6 relate to what came to be called “the chimp
incident”. It related to events said to have occurred in October or
November 2008; however, the Claimant’s ET1 was not put in until
October 2009. It is said this claim was submitted out of time; no claim
for an extension of time was made, and therefore the Tribunal had no
jurisdiction. Under ground 3 it is said that the chimp incident as a
separate allegation related to events before 5 April 2009, at which
time the late and unlamented statutory grievance procedures still existed.
They were not complied with, and for that reason too the Employment Tribunal
had no jurisdiction in respect of the chimp incident. Ground 4 complains
that the Tribunal, in considering the chimp incident, used the wrong
comparator; ground 5 asserts that no detriment arising from that incident
was found to have existed, and therefore that incident could not constitute in
law an established act of race discrimination; and ground 6 asserts that
the reasons for the Tribunal’s conclusion on the chimp allegation were
inadequate.
5.
The focus then switches to subsequent allegations. Ground 7 asserts
that the Tribunal erred in concluding that there was a continuing act of race
discrimination up to September 2009; ground 8 asserts that the
Tribunal, in considering the complaint that the Respondent had not taken the
complainant’s grievances seriously, used the wrong comparator; ground 9 asserts
that, in considering the same area, the Tribunal came to factual conclusions
that were perverse; ground 10 asserts that, on the basis of the Tribunal’s
conclusions, it can be seen that they found that the Respondent’s reasons for
failing to treat seriously the Claimant’s grievance or grievances was a non‑discriminatory
reason and therefore inconsistent with their finding that there was race
discrimination in that respect; ground 11 relates to the issue as to
whether there was or was not a finding that there had been racial
discrimination by the Claimant being isolated by other members of staff; and
ground 12 relates to what came to be called “the monkey incident” (so that
in this case there was both a chimp incident and a monkey incident!); it is
said that the Tribunal’s factual conclusions on that incident were perverse.
6.
There are two grounds 13. Ground 13 number 1 asserts
that the monkey incident took place more than three months before the issue of
proceedings on 2 October 2009, therefore was out of time; and no
application to extend time was made. The second ground 13 asserts that
the Tribunal erred in law in inferring racial discrimination, or a difference
of treatment which was capable of being race discrimination, from no more than
unreasonable conduct. Lastly, in what is, perhaps slightly oddly, in the
amended Notice of Appeal described as “Ground 7”, point is taken on
quantum, and we need not develop that any further.
History in outline
7.
Having set out the grounds of appeal in brief terms, we turn to an
outline history of the facts, taking our outline from the details of the
Tribunal’s findings of fact, those details covering a very substantial part of
a substantial Judgment. The Claimant was employed by the Respondent as a nurse
in 2008. In the autumn of 2008, he moved to their care home, which was a home
for vulnerable elderly persons, at Ayresome Court, which is in Yarm,
Cleveland. In February 2009, he complained to Ms Fellows, the
manager of the home, that in his early days at Ayresome Court he had been
called a “chimp” by another employee, Helena Scott, who had also said that he
was “the most obnoxious being on the planet”. Ms Fellows met the Claimant
two days later. He named witnesses as having been present at the chimp
incident. The Tribunal found that Ms Fellows told the Claimant that
further statements would be taken and he would be notified, but no
investigation took place and the allegation that the Claimant made was not put
to Helena Scott until a week before the Employment Tribunal hearing, which took
place in November 2010.
8.
Three weeks later the Claimant, nothing having happened in the interim
period, wrote to Ms Pilkington of the Respondents (Ms Fellows being
on holiday), saying that he was not pursuing his complaint any further. He
suggested that he would move; he was told that that would not solve the problem
and that something needed to be done about it, but in fact nothing was done.
Late in March and early April complaints were made to Ms Fellows by other
members of staff and a “service user” (which means a client or resident at the
home), that the Claimant had behaved in an ill‑tempered and offensive
manner. Prominent among the complaints was a complaint that, on 1 April,
he had been asked to turn off a buzzer alarm and had screamed in an aggressive
manner that he was on his break; this was described as “the buzzer incident”.
We will come back later to what happened between the initiation of those
complaints and the suspension of the Claimant on full pay on 3 April while
a “full and thorough” investigation was to be carried out.
9.
In the course of an investigatory meeting on 29 April
Ms Fellows put the complaints against the Claimant to him and sought his
version. His response is set out at paragraphs 5.18 and 5.19 of
the Judgment. We can summarise it by saying that he responded in terms of
continuing racist behaviour towards him. He was then invited to a disciplinary
hearing on 14 May in respect of the buzzer incident and another incident,
called “the birthday incident”, when he was said to have expressed his
displeasure loudly when dispensing drugs from the drugs trolley and the lights
were turned off because of the presentation to a resident of a birthday cake,
which he did not know was going on. At the disciplinary hearing, he was asked
if he felt that staff did not listen to him because of racial issues, and said,
“I don’t know, somebody called me a chimpanzee, one of those in the same group,
Helena said it”, and then he said, relating to the withdrawal of his complaint,
that it had not been dealt with and that he could get on fine until this
happened, referring to the fact that a disciplinary meeting was taking place in
respect of the matters that I have referred to.
10.
On 19 May the person who had conducted that disciplinary meeting,
Ms Bainbridge, issued to the Claimant a formal final written warning, requiring
him not to show aggression around the home, to take breaks in the staff room
and to help other staff when they needed help. He appealed against that
warning. By that time, a number of further complaints had been made about his
conduct and he was again suspended. At his appeal hearing on 17 June, heard
by Lesley Shaw, he was asked whether he wanted to pursue the original
allegation of racial discrimination, which was described by Lesley Shaw as a
serious allegation; he said he did, and the meeting was adjourned. Over the
next four weeks, the Tribunal found, various further staff were interviewed
about the complaints against the Claimant, in particular in relation to the
buzzer incident, and were asked if they had racial reasons for their conduct
towards the Claimant; unsurprisingly, they said they had not.
11.
On 22 July, the Claimant’s appeal against the disciplinary decision
was rejected, it seems without a hearing, but no point appears to have been
taken as to that. On 25 July he was asked by Ms Fellows to attend
another disciplinary hearing relating to the subsequent complaints. He went
off sick before that hearing took place, and on 26 August the Royal
College of Nursing on his behalf put forward a detailed further grievance
setting out a history of what he said had happened to him generally and
specifically, describing the monkey incident as having occurred in
June 2009, when a van was parked outside Ayresome Court by a resident’s
son which contained a monkey. There seems to have been some issue as to
whether it was a real monkey or a toy, which does not matter now. The
Claimant, who was upstairs, heard his name being shouted repeatedly, and a
nurse came upstairs to inform him of the monkey and insisted that he should
come and look at it. Just as a number of members of staff had been named as
witnesses to the chimp incident, so names were also given of witnesses to the
monkey incident.
12.
On 28 September 2009 there was a grievance hearing before an
operating manager of the Respondent, Melanie Auckland. We need not go into
details at this stage; but it was found that his grievances were not upheld.
These proceedings then started. At the date that they started, as we
understand it, the appeals or earlier stages of the second disciplinary process
were still outstanding, as was his appeal against the grievance decisions.
The Tribunal’s decision
13.
Having set out the factual history as they found it, the Tribunal set
out the law at paragraphs 6‑9 of their Judgment in a manner which
has not been the subject of any criticism, on behalf of the Respondent in this
appeal. They then addressed the issues and set out their conclusions. Their
conclusions, so far as relevant for the purposes of this appeal, can be
summarised as follows.
(1) The
complaints of race discrimination put forward by the Claimant at the hearing
were raised in his ET1 and in his further and better particulars; and the
Tribunal had jurisdiction to hear them (paragraphs 10‑12 and 20).
(2) The
Claimant’s case was one of a series of events which amounted to an act over a
period up to 28 September 2009. The Employment Tribunal application
was 2 October; so none of the allegations were out of time. The Tribunal
referred to the well‑known principle in Hendricks v The Commissioner of Police for the Metropolis
[2003] IRLR 95 (paragraph 13).
(3) The
appropriate comparator in relation to the chimp incident was a white nurse who
was called a chimp; but in any event that remark, if made, was race‑specific.
In relation to the allegations of failing to investigate the Claimant’s
complaints the Tribunal considered actual or hypothetical members of staff who
raised complaints but were white (paragraphs 15‑16). They found
that the investigation into the chimp incident was not adequate, and that the
persons named as present were not interviewed about it; Helena Scott was not
interviewed about it until the very last moment.
(4) Similarly
the subsequent complaints about other matters, including the monkey incident,
were not adequately investigated; only two of the four witnesses named in the
Royal College of Nursing grievance letter had been interviewed. The employers
would have carried out a more thorough investigation in the case of a
hypothetical white comparator (paragraphs 17‑19). The Tribunal
found that the monkey incident had occurred, as they found that the chimp
incident had occurred, and that in each case there had been racial
discrimination (paragraphs 17, 19 and 22).
(5) The
Claimant had established facts in relation to both the chimp incident and the
monkey incident and in relation to the lack of proper investigation, from
which, in the absence of an adequate explanation, the Tribunal could consider
that there had in those respects been race discrimination (paragraph 21).
(6) The
Tribunal, at paragraph 22, in summary considered the well‑known
principle, set out in Glasgow City Council v Zafar [1998] ICR 120
and in The Law Society and Ors v Bahl [2003] IRLR 640, that the
fact that conduct is unreasonable does not of itself enable a Tribunal to infer
that it was capable of being treated as discrimination but not adequately
explained. The principle was set out; and the Tribunal reminded themselves,
too, that they had to take into consideration all potentially relevant non‑discriminatory
factors. They found that the Respondents had not shown the burden of proof
having shifted to them, that any of the matters which the Tribunal had found to
constitute prima facie discriminatory treatment were not on the grounds of race.
They therefore determined that there had been direct discrimination in respect
of the chimp incident and the monkey incident, and the failures properly to
investigate them. We will come to compensation later.
The appeal
14.
We now turn to the submissions, and our response to those submissions,
in relation to each of the grounds which we have earlier summarised. The first
ground can be described as the “not pleaded” ground. Mr Sonaike, on
behalf of the Respondent, has referred us to authorities such as Chapman v Simon
[1994] IRLR 124, which set out that, as a matter of principle, a Claimant
before the Employment Tribunal must set out in advance the arguments which he
wishes to raise, and that it is not for the Tribunal to find some other act or
acts of racial discrimination which have not been the subject of complaint.
Mr Sonaike submits that in this case the ET1 was in very general terms,
therefore the Tribunal ordered further and better particulars, and the Claimant
was entitled only to proceed on what was in the further and better particulars.
He submits that the further and better particulars did not identify a complaint
of failure of proper investigation of matters subsequent to the chimp
incident. The only complaint there identified as a failure to investigate was
that made to Ms Fellows in February 2009 about the chimp incident.
Therefore the Tribunal did not have jurisdiction to deal with the subsequent
complaint and the subsequent failures to investigate. It is said that this
point was taken during the course of the hearing and that the Tribunal said
that it would hear all the evidence and decide on the point at the end but did
not do so and simply included subsequent complaints and failure to investigate
them along with everything else.
15.
We do not accept these submissions. In the ET1 the Claimant complained:
of the chimp incident, of staff behaving adversely towards him as a result,
that he had been isolated by staff, that there had been an incident when he was
kept out of the picture when the birthday cake was presented and the lights
were turned off (the birthday incident), of the buzzer incident, and such
behaviour continuing and of Ms Fellows’ failure to address the above and
that that conduct continued after he came back from his holidays in March, the
monkey incident, that he was told that matters would be investigated by Lesley
Shaw, who dealt with his appeal hearing in relation to the disciplinary
process, but they had not been and of the rejection of his appeal against the
disciplinary warning. At the end of the lengthy narrative that he set out, he
said this:
“This total disregard of the racial abuse towards me and lack of
full and proper feedback to me of any investigation into my complaint by two
Managers has been perceived by me that as a man of colour I am not considered
in the same light as my white colleagues.
My feelings have been disregarded, I felt humiliated and
demeaned by their attitudes and disregard of me as a human being and a
professional Nurse. […]
There has been no support offered to me by Ms Fellows to
address these issues […].
My request to the Operational Manager Lesley Shaw for the racial
abuse to be investigated and lack of feedback demonstrates a lack of care to me
as a staff member.”
16.
Mr Sonaike submits that there is no reference to any complaint
other than the February complaint to Ms Fellows in the further and better
particulars. There is something in that submission, but, at paragraph 20,
the further and better particulars do refer to failure to take the Claimant’s
complaint into account properly and, more significantly, at the beginning of
the further and better particulars these words appear: “The matters set out
below are to be read in conjunction with the Claimant’s ET/1 issued on 2nd October 2009”.
Mr Sonaike submits that the further and better particulars in effect
constitute and must be taken to constitute all of the Claimant’s complaints and
that, in so far as anything further can be said to appear in the ET1, that
cannot be relied upon because it does not appear in the further and better
particulars, the Claimant having been ordered to provide further and better
particulars of his complaints.
17.
We do not accept that argument. The words at the beginning of the
further particulars were intended deliberately by the drafter, no doubt as a
safeguard, to incorporate the further particulars and the ET1 together. In our
judgment, the two documents should be taken together; and the ET1 plainly
covers complaints on a much wider basis than the complaint to Ms Fellows
alone. They were sufficient to put the employers on notice that they had to
address subsequent failure to investigate, beyond the original complaint of
February 2009. We are supported in this view by the fact that, in their
very detailed response, the Respondent referred in detail to the steps they had
taken to proceed with the further investigation. We accept that the fact that
something is addressed in a response is not enough of itself, but, coupled with
the ET1 and the further and better particulars, there is sufficient to show
what in essence is all that it is necessary to show, that the Respondent knew
that this was part of the case that they had to meet at the Tribunal hearing.
18.
It is worthy of note that, in their Judgment, the Tribunal at
paragraph 12 address this objection in a rather different way. They say:
“Mr Sonaike said that the further particulars named Angela
Fellows, Helena Scott and Arma Celestine and that the jurisdiction of the
Tribunal was limited to hearing complaints against those individuals.”
If that is the way in which the point was put, that is a rather
different point from that which is now taken. Whether the Tribunal correctly
described the point which Mr Sonaike then took, or whether they
incorrectly described it, we do not have to decide because we are satisfied,
treating Mr Sonaike as having made the objection which he says now that he
made (and accept that that is what he remembers as having happened), and
treating hypothetically the situation on the basis that he did make the
objection which he now says he made, in our judgment the Tribunal were right to
proceed despite it, because it was not well founded for the reasons we have set
out.
19.
We then go on to ground 2. This is headed “‘Chimp’ allegation:
Jurisdiction (time limit)”. The principle that for the purpose of deciding
whether complaints of race discrimination are in time, where there is what the
Tribunal decides to have been an act extending over a period, time begins to
run from the last of the acts within that period is not in dispute. It is
contained in the case of Hendricks to which we have already
referred, a case with which anybody who works in the world of discrimination law
is entirely familiar. Mr Sonaike submits that the Tribunal could not have
found, and, if they did, should not have found, that there was here a
continuing act, or an act extending over a period (those expressions amount to
the same thing) because they did not find any act of race discrimination
between the chimp incident in November 2008 and the failure to deal with the
Claimant’s complaints about it to Ms Fellows in February 2009. The
chimp incident was, therefore, a standalone complaint which was presented way
out of time, it having occurred in October or November 2008, and the ET1
having been presented something in the region of a year later. If the Tribunal
found that it was part of an action over a period, then they were not entitled
to do so.
20.
As to the first point, it was, in our judgment, open to the Tribunal to
regard the chimp incident and what followed it as a continuing act over a
period. It was the Claimant’s case that the chimp incident set in train a
campaign of adverse behaviour, including the bringing of complaints against him
and including the monkey incident; and the Claimant’s evidence as to the chimp
incident and the monkey incident was accepted by the Tribunal. There is
nothing in the Judgment which shows that the Tribunal rejected his evidence
that discriminatory conduct was taking place between the chimp incident and his
complaint to Ms Fellows three months later about it. Of the other
employees who were managers, only Ms Fellows was called; and, it seems,
she did not suggest, and it probably was not suggested at all, that it was
untrue that there had been adverse conduct after the chimp incident. Thus the
chimp incident need not be seen and, indeed, could not be seen as a standalone
incident. But, even if there was no such conduct in between at all,
nevertheless it was open to the Tribunal to regard the course of events,
looking at the picture as a whole from October/November 2008 through to
the presentation of the ET1, as an act extending over a period. It is, as
anyone who has worked in the discrimination field knows, far from uncommon in
this class of case for there to be individual acts of discrimination which form
part of an extended series of such acts yet occur, comparing one act with
another, three months or more apart. We conclude that there is nothing in this
point and that the Tribunal were entitled to treat the whole of the conduct
complained of as an extended act falling within the Hendricks
principle.
21.
But did they do so? That is the second point taken under this ground.
Mr Sonaike points us to paragraph 28 of the Judgment, in which the
Tribunal say:
“The claimant was subject to a continuing act of race
discrimination for a significant period of time. This was from
February 2009 until he went off sick on 29 July 2009. It
continued after that time, certainly until the grievance hearing on
28 September 2009.”
However, that paragraph, in our judgment, is a paragraph directed
not to making any findings about an extended series of acts but to the quantum
of compensation for injury to feelings. In saying what the Tribunal said in
the first three lines of that paragraph, the Tribunal may have been, and we
think probably were, understating the effect of their previous conclusions; for
there is no doubt, as we see it, that they found that the extended act
continued not from February 2009 but from the time of the chimp incident in
paragraphs 11‑13 of their Judgment. In paragraph 11 they said,
relating to the particulars:
“These referred to the various allegations naming Helena Scott,
other members of her staff present and laughing when she was alleged to have
referred to him as a chimp It referred to other members of staff beginning to
isolate the claimant and no action being taking [sic] by Angela Fellows.”
22.
They then went on to say that the particulars referred to the monkey
incident and to the failure to deal properly with the Claimant’s complaint. At
the beginning of paragraph 13, they refer to a point to which we are about
to come, namely that if the chimp incident was a standalone incident, it
attracted the provision of the Dispute Resolution Regulations under the Employment Act 2002.
They then said:
“The Tribunal is satisfied that the allegations made by the
claimant related to a series of events continuing over a period of time and has
considered the case of [Hendricks] in this regard. The allegations
represent an act extending over a period […]. The allegations raised by the
claimant continued in respect of his allegation of failure to investigate his
claims and to treat his complaints seriously.”
The Tribunal there were not
separating the Claimant’s allegations generally from the chimp incident.
23.
If those three paragraphs are read together, while the Tribunal
undoubtedly could have set out their conclusion in a more explicit manner, it
is, in our judgment, wholly clear that they were finding that the act extending
over a period included the chimp incident. If that were not so, what was the
purpose of the reference at the beginning of paragraph 13 to the issue
arising over the lack of a statutory grievance procedure? In our judgment,
there was a sufficient analysis of the issue, there was a sufficient
explanation for the Tribunal’s conclusion (as we have said, it could have been
more precisely spelt out, but it is sufficiently spelt out for their conclusion
to be clear); and it was a conclusion that the Tribunal were entitled on the
facts to reach.
24.
We turn, therefore, to ground 3, entitled “‘Chimp’ allegation:
Jurisdiction - Breach of Statutory Grievance Procedure”. This ground stands or
falls by the outcome of the rival submissions on ground 2.
Mr Sonaike accepts that, if the continuing act arguments which he has put
forward fail, then ground 3 fails too. No doubt everybody is grateful
that we do not now have to look at the regulations made under the 2002 Act.
The difficulties which they pose is no excuse for not looking at them if one
has to; but the reality is that we do not, because of the decision to which we
have just come on ground 2.
25.
Ground 4 is entitled “‘Chimp’ Allegation - inappropriate
comparator”. Here the submission is that the Tribunal, by using as the
comparator a white nurse who was called “a chimp” have erred. The Claimant is
black, and was dealing with plates when Helena Scott was in the area at the
time of the event. The correct comparison is it is said, not a white nurse who
was called a “chimp” but a white nurse who happened to be carrying out the same
act whilst Helena Scott was in the area. Mr Sonaike asks rhetorically in
his skeleton argument, “Would Helena Scott have referred to such a person as a
chimp?” The obvious answer to that question reveals the inappropriateness of
treating this part of the case on a comparator basis, and it can be seen that
whether or not the Tribunal in paragraph 15 wrongly identified the
comparator, were it necessary to go down the comparator route, they did not
determine this part of the case on that basis. They said this:
“The word ‘chimp’ in this context is race specific and, if the
Tribunal concludes that the claimant was referred to as a chimp, then that
would be on the grounds of his race.”
26.
As we read it, it is clear that the Tribunal either were not in truth
making the comparison complained of or were putting forward an alternative
basis for their conclusion, which alternative basis stands up whether or not
the comparator approach was correct. It is accepted by Mr Sonaike, with
appropriate professional candour, that the expression relied upon could be
taken as being race‑specific; he does not present any submissions that
the Tribunal could not so approach it, and they did, at least as one route to
their conclusion, approach it in that way. That being so, this ground also
fails.
27.
Ground 5, which is headed “‘Chimp allegation - No detriment” in
Mr Sonaike’s skeleton, we can deal with extremely quickly. We might be
tempted to have dealt with the argument that there was no detriment, or no
detriment found, at some length were it necessary to do so, but it is not
necessary to do so, because Mr Sonaike, again, with professionalism which
is admirable, accepts that if we find that there was a continuing act causing
the consequences which are subsequently described in the Tribunal’s Judgment,
this ground cannot be advanced, and therefore we need say no more about it. We
should add that Ms Nolan in her skeleton takes the preliminary objection
to this ground that it cannot be argued as a free‑standing ground because
it was not in the original Notice of Appeal, but we do not need to deal with
that point, and put it aside.
28.
By ground 6, headed “Chimp allegation - Inadequacy of Reasons”,
Mr Sonaike criticises the findings of the Tribunal at paragraph 22. In
that paragraph the Tribunal said:
“The Tribunal is satisfied that the claimant had been referred
to as a chimp. He was clear and consistent on this. He referred to a number
of witnesses and the circumstances in which it happened. There was no evidence
that it had been put to Helena Scott in these terms. Helena Scott’s evidence
was vague and she continually indicated that she could not remember events from
so long ago and, in the circumstances, the Tribunal prefers the evidence of the
claimant.”
29.
The basis of Mr Sonaike’s criticism is that the Claimant, in his
evidence, varied as to when the chimp incident happened. He said at first that
it occurred in October, and then in November; he was not able to give a precise
date for it. He had a diary but had not entered it into his diary. He said
that he could not explain (and that really means he could not adequately
explain, although it is clear from the notes that he did give some explanation)
why he had not made the complaint for three months, and there were, it was
said, detailed factual differences between one account and another account of
the incident which he had given. It is said that those arguments, which were
all put forward in closing, no doubt, by Mr Sonaike, are not reflected in
the Judgment; and there are therefore no proper reasons given by the Tribunal
as to why they preferred the evidence of the Claimant about this incident to
that of Ms Scott, who denied it.
30.
The Tribunal heard the evidence. They were entitled to form a judgment
as to the Claimant’s clarity and consistency. They were entitled to make a
judgment as to the strength, or lack of strength, of Ms Scott’s evidence.
It comes as no surprise to us that they reached the conclusion they did in
favour of the Claimant’s account, although he was hazy about the date on which
the event occurred or about some of its detail. The Employment Tribunal heard
the Claimant give evidence; they also heard Ms Scott. It is clear from
the notes which we have seen that she said that she did not use the expression
complained about, but her evidence is peppered with “I don’t remember” in
answer to questions she was asked in cross‑examination about the relevant
period, and she was not asked at all about the chimp incident until a week
before she gave evidence; in other words, for two years after the incident had
taken place. The Tribunal, in saying that the Claimant had been clear and
consistent, were not saying that he had been consistent about dates; they said
that he had given a clear account of what had happened and a consistent account
of what had happened. It was up to them to value, at whatever point in the
scale of values they wished, such inconsistencies as there were. The fact that
the Claimant said that what had happened two years before could have been in
October or early November and did not know which seems to us to have been
entirely unremarkable, but it is not our judgment which counts. The Tribunal
were certainly entitled to regard it as such; similarly his inability to
remember the precise date. He did give an explanation about the diary; it is
in the notes. None of the four suggested witnesses as to what happened were
called by the Respondent to say that the incident did not happen; the only
contrary evidence was the evidence of Ms Scott, which I have described.
The Tribunal were entitled to evaluate her evidence as they were entitled to
evaluate that of the Claimant.
31.
The Tribunal made a finding of fact of a routine nature in the life of an
Employment Tribunal. We are not suggesting that it is not important, but it
does not have any special features to it. In making a finding of fact of that
nature, a Tribunal does not, as part of its reasons, have to set out each and
every argument as to why a particular witness should not be believed and deal
with it. They are entitled to express their conclusion in rather more general
terms as long as, so as to be compliant with the standards set out in Meek v City of Birmingham District Council
[1987] IRLR 250, they say enough to allow the parties to know why on this issue
they have respectively won or lost. They said in their Judgment that the
Claimant had been clear and consistent, and they said that Ms Scott’s
evidence was vague and she continually indicated that she could not remember
events from so long ago. That is enough to explain to the parties why they
respectively won or lost on this issue. There is, in our judgment, no
inadequacy in their reasons.
32.
In ground 8, headed “Failure to treat his grievance seriously.
Incorrect comparator”, the Respondent’s focus falls on paragraph 16 of the
Employment Tribunal’s Judgment:
“With regard to the further acts of discrimination, it is
alleged that, on a continuing basis, the respondent failed to take the
claimant’s complaints seriously. The Tribunal has to consider the appropriate
comparator in this regard. Mr Swift on behalf of the claimant referred to
the other members of staff who had raised complaints against the claimant.
These were investigated immediately and the claimant was suspended. The
Tribunal has concluded that these other members of staff could be the
appropriate comparators or, if not, they will provide evidence from which the
Tribunal could construct an appropriate hypothetical comparator. That is a
white person who raised similar complaints to those of the claimant and the
alacrity with which the respondent dealt with the complaints on or around
2 April 2009 provides clear evidence that the claimant has suffered
less favourable treatment. He was suspended on 3 April 2009.
Whereas the complaint the claimant raised on 20 February 2009 was not
brought to the attention of the person he named, Helena Scott, until
October 2009 and she only saw the letter of complaint about her behaviour
about a week before the Tribunal hearing.”
33.
The Respondent submits that the Claimant’s complaints at this stage
about the chimp incident did not cause any harm to any service users, the
residents of the home, whereas the complaints against the Claimant did in a
number of respects, set out in paragraph 50 of Mr Sonaike’s skeleton.
Therefore there is no true comparison. The Tribunal were not comparing two
sets of complaints that were anywhere near each other, it is said, in terms of
importance and magnitude.
34.
In our view, this argument, too, is not well founded. Firstly, the
Tribunal’s findings of failure to investigate do not only relate to the chimp
incident; the first grievance was about that incident; there are many further
complaints in Sandra Bullock’s letter (see paragraph 5.41). But in any
event, concentrating on the complaint as to the chimp incident, whether the
comparison was one which could be made was a matter for the Tribunal unless it
was so impossible as a comparison that it could not fall within a permissible
solution to the comparator question. In our judgment, there was not the
enormous difference that Mr Sonaike relies upon. A complaint that
somebody has acted adversely in a way which affects the residents in the home,
of course, is important, but so too is a complaint that one member of staff has
called a black member of staff a “chimp”. Neither could be said to be
trivial. As to a comparison of seriousness, that was a matter for the Tribunal
and not for us, unless, as we have said, the Tribunal’s comparison exceeded the
permissible limits; it did not.
35.
Secondly, the Tribunal in any event did not fall into the trap of
regarding the treatment of the complaints against the Claimant as conclusive.
What they said in paragraph 16 was that therein could lie the
appropriate comparators, but:
“If not, they will provide evidence from which the Tribunal
could construct an appropriate hypothetical comparator. That is a white person
who raised similar complaints to those of the complainant.”
36.
That, in our judgment, was an entirely appropriate approach by the
Tribunal; it is not a flawed approach.
37.
We turn to ground 9, a perversity argument in relation to the
Tribunal’s conclusion that there was a failure to treat the Claimant’s
grievance seriously. The substance of the submission is that the Tribunal came
to a perverse conclusion, because if a comparison is made between the process
of the Claimant’s complaint and the process of the complaints against him, it
can be seen that an initial note of the complaint was made by Ms Fellows
when it was taken but nothing happened for three weeks, and the same can be
said as to the process that occurred in the case of the complaints against the
Claimant. That, we see from the Tribunal’s very detailed findings of fact, is
not an accurate representation of their factual conclusions. It is an accurate
description in part of what happened to the Claimant, but it is not a complete
description, because the Tribunal did not regard the Claimant’s complaint as
having come to an end, in terms of investigation when he withdrew it; and in
any event he subsequently revived it when he was subjected to disciplinary
proceedings, yet it was not investigated. So, the non‑investigation
endured for much longer than the three weeks that Mr Sonaike has
identified.
38.
Secondly, the process in his case and the process, as found, in the case
of the complaints against him can be seen to have been very different. The
findings show that, the Respondent having received the first complaint against
him on 25 March, statements were taken from six people
(paragraphs 5.8‑5.12), and another potential witness was
interviewed, who said that in effect he did not have anything to say about the
complaints against the Claimant, except that the Claimant had insisted on
getting him to take his tablets at a time when he was not ready (which was not
the subject of any complaint against him that was pursued, as far as we know).
Within a few days of these complaints developing, by 3 April, the Claimant
had been suspended. It is not necessary for us to read through the details of
paragraphs 5.8‑5.12 or the fact that, thereafter, there were further
investigations; somebody was interviewed on 21 April, and Helena Scott was
interviewed on the same day, although not about the chimp incident, but about
the buzzer incident on 1 April. Another witness (Alison Worthy) was
interviewed on 21 April and a further witness was interviewed on
24 April, Arma Celestine; so it can be seen that between the beginning of
those complaints and 24 April, over roughly a three‑week period, a
great deal was done. Yet in the case of the Claimant’s complaint, on the
findings, apart from taking an original note of his complaint, nothing at all
was done in that same or similar period. In our judgment, looking at the
findings of fact as we have done, the argument put forward by Mr Sonaike
does not come near to demonstrating overwhelmingly that the Tribunal had
reached a conclusion which no reasonable Tribunal could reach, that being, of course,
the test for perversity as set out by Mummery J, as he then was, in Yeboah v Crofton
[2002] IRLR 634. Thus this ground fails as well.
39.
Ground 10 also relates to the failure to take a grievance seriously. It
is submitted that the Tribunal, at paragraph 24, found that the reason why
Ms Fellows did not take up the investigation more vigorously was a non‑discriminatory
reason, which excluded the Tribunal from coming to the conclusion to the
contrary which they reached. In paragraph 24 the Tribunal say this:
“Angela Fellows was the only manager who appeared before
the Tribunal. The Tribunal does have some sympathy with her. She was an
inexperienced manager who indicated that she had had no training in equal
opportunities or dealing with grievances. However, she made much more effort
to investigate the allegations against the claimant than she made in respect of
his serious allegations of race discrimination. She did not take the
claimant’s allegations seriously, neither did any of the other managers
involved. However, the allegations against the claimant which, the Tribunal
considers to be of a less serious nature, were investigated with a degree of
thoroughness. The failure to take the claimant’s complaints seriously was on
ground of his race. There was a lack of comprehension of the seriousness of
these issues. There was a complete lack of sensitivity towards a man of the
claimant’s ethnic origin and how reference to him as a chimp or comparisons to
a monkey would affect him. The Tribunal is satisfied that the claimant was
subject to direct race discrimination.”
40.
The submission based on that paragraph, in our judgment, fails to
embrace the well‑known principle that race discrimination does not have
to be proved to have occurred by a person or persons who is or are racially
motivated. Unhappily it is well known that people can stumble into
discrimination through ignorance, incompetence or otherwise. The findings
about Ms Fellows at paragraph 24, we are satisfied, are sufficient to
explain why the Tribunal concluded that there had been racial discrimination,
that there was differential treatment that was capable of being race
discrimination, and that there had been no adequate explanation of that
difference. Her lack of comprehension or sensitivity towards the Claimant and
towards his racial complaint were matters from which the Tribunal were entitled
to infer, as they did, that there was discrimination and that the explanation
was not sufficient or acceptable. That is the exercise that the Tribunal were
carrying out in paragraph 24; and it was an exercise which was a
permissible one.
41.
Ground 11 is a slightly unusual ground, in so far as it is a ground
at all. What is said is this: the Claimant complained to the Tribunal, and
indeed to the employer, that he had been isolated by other staff members. That
he had so complained is clear; it is referred to in the grievance letter which
emanated from the Royal College of Nursing. What Mr Sonaike says is that
it is not clear is whether the Tribunal made a finding that that isolating
conduct by staff members had in truth occurred. The Tribunal undoubtedly found
that the chimp incident had happened and that the monkey incident had happened,
but, says Mr Sonaike, it is not at all clear that the Tribunal found that there
was, as a matter of fact the isolating behaviour; and if they did, there are no
reasons given for their making that finding.
42.
The nearest that the Tribunal come, in our judgment, to making such a
finding is in paragraph 23, where they are addressing not whether there
was that behaviour but whether there had been a failure to deal properly with the
Claimant’s complaints. At the end of that paragraph, they say, “The claimant’s
aggression arose following an incident in which he was called a chimp and he
was then isolated by other members of staff”. Ms Nolan, on behalf of the
Claimant, agrees that there is no express finding by the Tribunal that that
behaviour actually occurred; and, in our judgment, that is correct; not only is
there no express finding, but reading the Judgment as a whole one cannot find
sufficient, adding together various strands, to amount to such a finding. That
being so, it is obvious that there is no criticism to be made of a finding which
the Tribunal did not make. Why they did not make that finding we do not know.
It may have been accidental; we do not need to speculate, as there is no cross‑appeal
about it, nor is there any need for us to say any more on that topic.
43.
We turn to ground 12, which asserts that the Tribunal reached a
perverse conclusion in finding that the monkey incident had happened. The only
evidence about the monkey incident came from the Claimant. There was evidence
as to what other people had said in response to the investigation, but nobody
was called by the Respondent to give a different version. He said (and we have
been helpfully provided with his witness statement, and we have assumed, and
nobody has suggested to the contrary, that his witness statement constituted
his evidence‑in‑chief with supplementary questions of no relevance),
that some time in June in the afternoon a van was parked outside the home by a
resident’s son. There was a monkey in the van. The Claimant was upstairs at
the time, and heard his name being shouted repeatedly at the monkey by care
staff. Then another nurse, Arma Celestine, came upstairs yelling and insisted
that he should come with her to have a look at the monkey in the van, an
invitation that he declined. As we say, there appears to be no evidence on the
other side.
44.
It is suggested that the Claimant was upstairs when he heard his name
being shouted, and did not see or witness the shouting or the cause. He was,
however, entitled to state the cause; he was being shouted at in relation to
the monkey. He does not have to have seen the people who were shouting and
does not even have to be able to identify the persons who were shouting. His
name was being shouted at the monkey; that was his evidence, and then
Ms Celestine came upstairs and insisted that he should come down with her
to have a look at the monkey. It was, in our judgment, permissible for the
Tribunal to find as they did that that incident occurred broadly as described
by the Claimant. We have already described the high hurdle that confronts an appellant
who seeks to argue that a finding of fact was perverse; that high hurdle has
not been overcome in this case. There appears to be no suggestion that the
Tribunal, having found the facts, did not act appropriately in finding that
that was differential treatment and that there was no adequate explanation;
there was no adequate explanation because no evidence was called about it, and
thus we need not take this point any further.
45.
The first ground 13 goes to the application of the three‑month
time limit to the monkey incident, it having occurred in early June 2009,
and the ET1 having been presented in October. However, it is accepted that if
we come to a conclusion on ground 2 (the act extending over a period
ground) in favour of the Claimant, this ground goes. We have so concluded; so
we say no more about this ground.
46.
Lastly, in terms of liability, in the second ground 13 in the
Notice of Appeal it is argued that the Tribunal made the mistake of inferring a
difference in treatment which could be caused by discrimination only from
unreasonable conduct. This is in particular, no doubt, in relation to the
failure to investigate, although, as it is put, the argument appears to embrace
everything. We have said earlier that the Tribunal at paragraph 22 expressly
reminded themselves not to make that mistake, as they also reminded themselves
to take into consideration all the potentially relevant non‑discriminatory
factors; and in our judgment there is nothing persuasively to demonstrate that
they did make the mistake which the ground asserts. It is to be noted that, at
the end of paragraph 22, referring to the chimp incident and to the
failure to take the Claimant’s complaint about that incident seriously, the
Tribunal said, “this was not just unreasonable treatment; the Tribunal is
satisfied that it was unreasonable treatment on grounds of the claimant’s race”.
Thus we reject, too, that ground.
47.
That brings us to the last ground, which is a very limited ground as now
developed. Although originally there was an attack on the Tribunal’s award of
compensation for psychological injury, it is now accepted by Mr Sonaike
that there was some evidence to support that finding. This ground therefore
came down to a discussion about the extent to which the Tribunal’s findings as
to compensation would have to be reconsidered if we found in the Respondent’s
favour on any of the grounds of appeal in relation to any of the aspects of
discrimination that the Tribunal found to have existed. Since we have not
found in their favour, this ground need not be considered any further, so we
also say no more about that.
Conclusion
48.
We have, we think, now dealt with all of the grounds that have been
advanced. We are grateful to counsel on both sides for dealing with something
like 15 grounds of appeal between them in just over two‑and‑a‑half
hours. That demonstrates admirable economy which we may not have been able to match
in this Judgment, but we have tried to deal with all the matters with which we
felt it was necessary to deal. The appeal is dismissed.
