United Kingdom Employment Appeal Tribunal
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URL: http://www.bailii.org/uk/cases/UKEAT/2015/0045_15_0411.html
Cite as: [2015] UKEAT 45_15_411, [2015] UKEAT 0045_15_0411
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EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
Before
THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
MISS S M WILSON CBE
ESSEX COUNTY COUNCIL APPELLANT
Transcript of Proceedings
JUDGMENT
APPEARANCES
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(of Counsel) Instructed by: Essex Legal Services New Bride House 60-68 New London Road Chelmsford CM2 0PD
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(of Counsel) Instructed by: Scott-Moncrieff & Associates Ltd 88 Kingsway Holborn London WC2B 6AA
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SUMMARY
RACE DISCRIMINATION
RACE DISCRIMINATION - Comparison
An Employment Tribunal considered 28 matters said to amount to acts of race discrimination, arising in relation to the employment of the Claimant as a solicitor for the Defendant council. In respect of each it asked if it had caused a detriment, but did not enquire if it was an act of less favourable treatment than that given to those of a race different from that of the Claimant. It did not consider any of the comparators where they were named in respect of the allegations, nor explore the characteristics of an hypothetical comparator to assess if such a person would have been less favourably treated. There was one exception to this - central to the Claimant’s case was that she should have been appointed to a post as head of employment, rather than the woman who was. This was a comparison. However, there was no consideration whether the two were in materially the same circumstances: the successful candidate had applied for the post (the Claimant had not), and was an employment specialist, as she was not, and the Employment Tribunal did not consider whether these features vitiated the comparison. It thus wrongly concluded the burden of proof had shifted, in circumstances where it had merely asked whether the acts of the Respondent had caused detriment.
Secondly, the Employment Tribunal took a blanket, across-the-board approach when deciding that the burden of proof shifted in respect of all the allegations: this was in error, since it should have asked in respect of each whether the burden shifted, but did not.
Thirdly, the Employment Tribunal made material errors of fact.
Fourthly, it found that there had been victimisation by the acts of a Mr Thomson in causing the dismissal of the Claimant because she had done two protected acts. Since the only detriment alleged was dismissal, and the second act was the issuing of a claim form complaining of the dismissal, the finding could not be sustained on that ground: and in respect of the earlier protected act, there was no evidence (as there needed to be) that Mr Thompson knew of the act, as he would have to do if his actions were because the Claimant had done the protected act.
Finally, the parties agreed that the Employment Tribunal was in error in finding that the same act was both harassment and discrimination, since to do so was contrary to the provisions of section 212 of the Equality Act 2010.
Appeal allowed: case remitted to a fresh Tribunal for determination.
THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
Introduction
1. This appeal, against a decision on liability by a Tribunal sitting at Colchester (Employment Judge M Warren, Mrs Prettyman and Dr Ukemenam) reached for Reasons delivered on 19 September 2014, demonstrates the importance of bearing in mind the statutory provisions that apply to what may often be complicated facts, the very detail of which may distract a Tribunal from the essential nature of its enquiry.
Overview
2. The essential facts are set out in a lengthy and detailed Judgment of the Tribunal. The Claimant complained that she had been discriminated against by the Respondent on the ground of or because of her race, that she had been subject to harassment for that reason - though not by reason of dismissal itself, though that is what the Tribunal ultimately found - had been victimised because she had complained about her treatment, had been unfairly dismissed and that her employer had been in breach of contract to her. She was a barrister-turned-solicitor who had a background in property litigation (see paragraph 50) and who described herself in those terms (see paragraph 51). Late in 2009 she became a team manager for the Litigation Adult Social Care & Education Team within the Essex Litigation Service of the County Council. She was dismissed, purportedly by reason of redundancy, in 2011.
3. The background in part to that was that the County Council decided to restructure the way in which its legal teams were organised. That meant that the members of five teams would become members of three. One new post would be created at grade 9, grade 9 being high, but two posts at grade 8 (the Claimant being grade 8) would be shed. Overall, therefore, one post ultimately was made redundant, but in referring to that the Tribunal noted at paragraph 76 that it was anticipated that most savings in the reorganisation would come from support posts rather than from fee-earners and it was therefore anticipated that few if any lawyer posts would be removed. There were to be two fewer team leaders, but an extra position created as assistant county solicitor. It was thus on the cards at the outset that a solicitor might lose their job by reason of redundancy.
4. Of the three new teams, headed “People”, “Places” and “Dispute Resolution”, the latter was itself divided into four sub-teams. They were Claims Handling, Personal Injury and Civil Litigation, Advocacy and Enforcement, and Employment. The heads of the three main teams were to be appointed by the end of September 2011 before the heads of the four teams within “Dispute Resolution” were themselves appointed. The first central complaint made by the Claimant was that she was not appointed to the post of head of the Employment team. She had been in competition in a ring-fenced exercise with one other for the post of head of Dispute Resolution. She was not appointed to that post. She did not actually apply for the post of head of the Employment team, though it was not entirely clear that she was expected to do so.
5. The person appointed as head, a Ms Thomas, had begun service with Essex in 2009, after a career with Birkett Long as an employment lawyer. She was recognised as an employment specialist though she may not have had much management experience. The role as head of the Employment team was a leadership role but did not involve much management, that being the function of the head of Dispute Resolution. The Claimant, by contrast, had stated in her interview in 2009 (see paragraph 56) that she was not an employment lawyer. The Tribunal recorded at paragraph 68 that she had sought advice on one occasion as to the status of locums and employees, which implies that she had some uncertainty about that area of law, that she did not understand the concept of slotting and ring-fencing (paragraph 123) and that she felt she should have been appointed to the Employment lead role having worked for the Respondent for two years. She said that by then she regarded herself as an employment lawyer. The Tribunal found that having come to her post largely to occupy a management role only a small element of her role was fee-earning, and an element only of that was employment law (paragraph 214.1) such that she had, as apparently she accepted, charged only 230 hours in the employment field in the last full year of her employment.
6. Nonetheless, the Tribunal went on to hold that not offering her the Employment sector lead role was an act of discrimination against her. It might be thought that this would have involved a close comparison of the relative merits of the person appointed, who was white, and those of the Claimant as aspirant for the post, she being black African. Her case was advanced upon the basis that she was black African.
7. A broad overview of the rival contentions before the Tribunal was that in respect of this post, which was central, the Claimant had been seeking a role as Employment team leader, and though not satisfied with a role she could do (which was offered) wished to fill this slot, although the employer, or at least one of the senior Employment team, thought she was less well qualified to do so than Ms Thomas. Seen from the employer’s perspective, the Claimant was thus expressing a sense of entitlement that was not fully justified in the circumstances. Viewed from her perspective, the Claimant had the sense that she had been badly treated by her managers, in particular the head of Legal Services, a Mr Thomson. He, for instance, had held a performance review of her earlier in the year in which the reorganisation occurred in the autumn. The review was concluded by April. His view, which the Tribunal thought not inappropriate, was that the Claimant had not fully met her targets, but he did not tell her this, nor discuss it with her, despite having met her on more than one occasion since, nor did he give any feedback of a relevant sort to enable her to improve her performance until, on 21 June, when the reorganisation was just getting underway, he told her for the first time of the result of her appraisal. This treatment, which she regarded as unfair, was coupled with other events that occurred in her relationships with her senior managers which led her to think that the reason she had been treated as she was in this and in other respects was because she was black African. The great majority of those employed were not.
8. The Claimant complained, eventually, in February 2012 of a number of incidents that were said to be incidents of race discrimination against her. In all there were 29 numbered allegations of direct discrimination, although, since one had no content, there were 28 actual allegations put before the Employment Tribunal.
The Tribunal’s Judgment and the Appeal
9. The Tribunal approached the allegations in a manner that both counsel characterised as heterodox.
10. Having set out the law and introduced the cast list in its earlier paragraphs, it dealt with findings of fact. What it was doing when making these findings was purportedly addressing direct discrimination under the Equality Act 2010 (“EqA”) under the terms of section 13 of the Act. Section 13(1) provides:
“(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”
11. What this calls for is well established. It has, first, to be shown that there was less favourable treatment. That is not “unfavourable” treatment. Treatment may be unacceptable, inappropriate, bullying or irrational, but it may nonetheless be no less favourable than that given to others, the “others” in the context of a claim for race discrimination being those of a race other than that of the Claimant. This is so well established in case law that neither counsel thought it necessary to refer us to any particular authority upon the point, but if one were needed, reference might be had to Glasgow City Council v Zafar [1998] ICR 120, a decision of the House of Lords to that effect. Establishing “less favourable” treatment calls for a comparison. The comparison may or may not show that people of the same racial characteristic have been treated equally as badly as each other, but that those who are not of that characteristic have not, or it may show that there is no significant difference in the treatment of a person of one race when compared to that of another. Bad treatment is not necessarily less favourable treatment: it is less favourable treatment, not merely bad treatment, which is a necessary step in establishing a claim for direct discrimination. Indeed treatment which is not “bad” at all may nonetheless be “less favourable” if better treatment is given to others.
12. There may be cases, of which this is not one, where no comparison with others is needed because it is plain that there has been detrimental treatment on the ground of race because of the particular criterion by which it is applied to an individual. An example, not in the field of race but that of sex, was that of the granting to female pensioners the right to enter a swimming pool free of charge at the age of 60 whereas male pensioners had to be aged 65 to qualify for free entry. There the very criterion (being in receipt of an old age pension) contained the discrimination and no further comparison was required. By contrast, in a case such as this, section 23 of the Equality Act 2010 comes into play. That is headed “Comparison by reference to circumstances”. It provides:
“(1) On a comparison of cases for the purposes of section 13, 14 or 19 there must be no material difference between the circumstances relating to each case.”
13. The comparator considered may be an actual comparator or an hypothetical one: the phrase is “treats or would treat” others. In this case, the Claimant had submitted further information in relation to her claim in which by individual reference to the several allegations she made she put the names of comparators: either actual comparators to whom she was referring or hypothetical ones. There are some boxes where no comparator is named, but otherwise a number of persons whose identities were clearly spelt out.
14. The Tribunal, when it set out the law, set out the issues that it had to determine. At paragraph number 8 it set out the 28 allegations of substance following the introductory words, “Whether or not the Respondent treated the Claimant less favourably in the following respects”. The words are, therefore, appropriate. It turned to comparators and noted that the Claimant relied upon the actual comparators as set out in her further information or, further and alternatively, would rely on an hypothetical comparator. When it set out the case law, it reminded itself of the terms of section 13. It gave considerable detail by reference to the case law of the ingredients of section 13 other than less favourable treatment and comparison, and the ingredients of harassment and of victimisation, and it spent some time referring to the burden of proof, under section 136, which provides as follows, insofar as material:
“(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.”
It noted that that section required it to establish primary facts. Without establishing primary facts, the burden of proof could not shift from the Claimant, upon whom the burden lay to establish those primary facts, to rest instead upon the shoulders of the Respondent, whose obligation at that stage only would then be to explain why the adverse treatment which was less favourable than it would have been of someone who was of a different protected characteristic had occurred.
15. The Tribunal did not, however, set out any detail of the meaning of less favourable treatment nor of the approach it should adopt to comparisons and comparators. When it came to the analysis of the facts it had found, it said at paragraph 211:
“211. We consider first of all the specific allegations of less favourable treatment and whether if upheld, they amount to detriments, before turning to consider whether there are primary findings of fact from which we could conclude, absent an explanation from the Respondents, that Ms Jarrett was the victim of discrimination in relation to those allegations, in so far as we find the factual aspect of the allegations well founded.”
16. So far, so good; but Mr Sheldon, for the Respondent, argues that thereafter the Tribunal fell into error. What the Tribunal did was deal with each of the 28 allegations in turn, and by number from 1 to 29. In respect of none of them did it ask whether the treatment it found proved (if it did) on that particular occasion was less favourable than that which was given or would have been given to someone of another race. Nor, if it had in mind any comparator, did it identify that comparator. Despite the naming of comparators by the Claimant, the Tribunal did not consider any of the comparators at all in respect of the detail of their cases. One exception to that is that in respect of one of the allegations the Claimant had noted Ms Thomas as a comparator; that was in respect to the decision not to offer the post of Employment sector lead to the Claimant but to offer it to Ms Thomas instead. Its treatment of this exception, however, demonstrated a further problem.
17. The problem the Tribunal fell into, as Mr Sheldon submits and as we agree, was a failure to analyse the nature of the comparison. It was called upon by section 23 to ask if Ms Thomas and the Claimant were in the same material circumstances. It dealt with the allegation, number (v), at paragraph 215. It said that it would analyse the reason why she was not appointed and why she was offered another role further on in its analysis, but it did not ask whether by failing to offer the Claimant the post of Employment sector lead she was being treated less favourably than Ms Thomas. We conclude that that was sufficiently answered elsewhere in the Judgment, but that the Tribunal also in this case would have to ask whether the Claimant and Ms Thomas were in materially the same circumstances. There were two particular features relating to Ms Thomas that arguably made her position very different from that of the Claimant. They were, first, that she had applied for the post but the Claimant had not; second, that she was an employment specialist, and had been so throughout her career, but the Claimant was not. This is not to say, we hasten to add, that the Claimant did not have an ability in employment law, but the Tribunal made it clear in its findings in a number of places that she was not at this stage to be regarded as an employment specialist as such. Whether that made a material difference should have been evaluated by the Tribunal but was not.
18. The further difficulties of taking an approach of not asking the question posed by section 31 in respect of each and every allegation may be gauged by taking an example, but it is only one example, of the effect of the same erroneous approach. For instance, at paragraph 228, in respect of allegation (xviii), there was an allegation that the Respondent through Mr Thomson had subjected the Claimant to comments during the course of meetings with her to the effect that he would use the restructure as a means of “getting rid of people he did not want”. The Tribunal thought as a matter of fact that that was the sort of thing Mr Thomson might have said and found on the balance of probability that he did. It went on to say that the allegation was upheld and amounted to a detriment (that is, plainly, to the Claimant) and, thus far, one might think there was no problem. But what it then said by way of explanation of the detriment was:
“228.2. … for such remarks will create a sense of insecurity within a team, as individuals will fear they are amongst those not wanted, and may find themselves redundant, not as a result of a fair process, but because of the personal preferences of an individual.” (Our emphasis)
19. This is not asking whether the Claimant suffered a detriment that those of another race would not. Once one accepts, as appears to have been common ground below, that “the team” contained a number of people who were not of her race, it is difficult to understand how the Tribunal could here conclude that making this remark was less favourable treatment of those of the Claimant’s race as opposed to merely unfavourable treatment. Had the Tribunal asked itself the appropriate question, it may have come to the conclusion that what Mr Thomson did was to subject the Claimant to a detriment that was particular to her or those of her race (potentially at this stage, because of her race) in a way that it was not to others. But it did not do that, and as a result found itself talking about insecurity within a team without appearing to appreciate that the team contained those of different racial backgrounds.
20. It is not, in our view, necessary to go further in respect of each and every one of the allegations. The bold point taken by Mr Sheldon, which we have indicated we accept, was that it was necessary at this stage to examine whether the treatment involved was less favourable before the Tribunal asked the question of whether the burden of proof had shifted. Instead, it shifted the burden, and then asked if the treatment which had caused it to shift was less favourable. Mr Sheldon complains that the Tribunal did not ask the question whether the treatment was less favourable than that of a comparator or a hypothetical comparator (having gone through each of the allegations as we have described and found that as a matter of fact what the Claimant complained of either had or had not occurred) before it began at paragraph 240 to say:
“240. We now turn to consider what primary findings of fact we have made and from those, absent an explanation from the Respondent’s witnesses, whether we could conclude that discrimination lay behind the allegations that we have upheld.”
21. This was to ask a question from which it came to the conclusion at paragraph 241:
“241. These facts, combined with those of the allegations that we have upheld, are sufficient that we may conclude, absent an explanation from the Respondent, that Ms Jarrett’s race lay behind the acts complained of and therefore, the burden of proof shifts to the Respondent.”
22. It then went on to consider whether the Respondent had sufficiently explained each of the allegations that had been upheld. At that stage in the second sentence of paragraph 242 it said:
“242. … In the following analysis [that is, after it had decided the burden of proof should shift], we considered in each instance whether a white person in the same situation as Ms Jarrett, (a hypothetical comparator) would have been treated in the same way”
23. It is actually difficult to see that the Tribunal did that, because it never referred in terms to the particular characteristics of the comparator, it never referred in any of the allegations, bar one, to the comparator, and it plainly had not considered an actual comparator because it was looking at an hypothetical comparator. However, the essential point that Mr Sheldon makes as part of his ground 1 is that the Tribunal had no business to be considering whether the employer could prove that there had been no discrimination by satisfying the Tribunal that there was a non-discriminatory ground for the treatment before sufficient facts had been established upon which to shift the burden of proof in the first place, and those necessarily involved, he submitted, finding the primary facts to which section 13 of the Act makes reference.
24. In her response Mrs Belgrave focused heavily upon the facts and emphasised a number of aspects of the way in which, on her submission, the Claimant had been badly treated by her employer. She reminded us in her skeleton argument that this Tribunal should respect the factual findings of a Tribunal below and should not strain to identify an error merely because it is unhappy with any factual conclusions; it is not to use a fine tooth comb, nor to subject the Reasons of an Employment Tribunal to unrealistically detailed scrutiny (see paragraph 55 of ASLEF v Brady [2006] IRLR 576 per Elias J, as he then was). The words of Lord Hope in Hewage v Grampian Health Board [2012] ICR 1054 were in point (paragraph 26):
“26. It is well established, and has been said many times, that one ought not to take too technical a view of the way an employment tribunal expresses itself, that a generous interpretation ought to be given to its reasoning and that it ought not to be subjected to an unduly critical analysis. …”
25. She emphasised that the Tribunal here had had the witnesses before it. It had taken a dim view of much of the evidence given to it by the two principal witnesses for the Respondent, Mr Thomson and a Ms Jarlett. She accepted that in some respects the Tribunal had taken a dim view of parts of the Claimant’s evidence too, but this showed a Tribunal taking its own careful steps through a great number of detailed facts. She acknowledged that the Tribunal had taken an unusual approach to its conclusions, that its expression of what it had done was infelicitous and that in many areas its expression of what it had done was not the best, but if one took a broad view one could see that it was looking in the first place from paragraphs 211 to 240 at all the allegations to see first of all those allegations that ought to be taken seriously on the one hand, and those that could be ignored and ruled out of further analysis because they were never going to succeed on the other.
26. It was in respect of those which passed this initial scrutiny that the Tribunal then asked, having considered matters from primary evidence that would add to any finding of less favourable treatment and a difference of race, about the explanation that the Respondent had given and the consideration of less favourable treatment envisaged by paragraph 242. Taking a broad overview, and not giving too critical a scrutiny to the facts and approach of the Tribunal, one could see from the primary facts how the Tribunal reached the conclusions it did, and that each could as a separate matter be justified as a finding upon the facts. It did carry out a comparative exercise, even if it did not say clearly that that was what it was doing, because there were natural comparators at every stage. The Tribunal was aware of those witnesses concerned with each allegation who were credible and who were not. The fact that part of the decision did not follow what might be regarded as the usual template does not mean to say that the usual matters were not thought of and considered.
Discussion on Ground 1
27. The Tribunal’s Judgment displays a wholesale failure to deal with comparators at all, despite the fact they had been detailed. The only exception was in the case of Ms Thomas. There was a wholesale failure to deal with whether the treatment of the Claimant was less favourable and, so far as Ms Thomas was concerned, a failure to consider whether she was in the same material circumstances. The findings cannot support a finding of direct discrimination. Discrimination may be simplified by regarding it as treating those in a like situation in an unlike manner, or those in an unlike situation in a like manner. The Tribunal simply did not show that it had conducted that exercise, as directed by the words of section 13, since it did not consider at all whether others were in a like or unlike position.
Ground 2
28. The second ground that the Respondent addressed was what it termed the burden of proof error. The way in which the Tribunal approached the burden of proof was to take what Mr Sheldon describes as a blanket approach. It called for an explanation in respect of each and every one of the allegations that it had found worthy of further consideration at the first stage. It did so upon the basis of its conclusion between paragraphs 240 and 241 that the burden of proof had shifted. This was therefore to shift the burden of proof in respect of every allegation as an across-the-board exercise. Mr Sheldon complains that that is not a proper approach. Each allegation of discrimination is a separate allegation; it needs to be separately considered. It may be that in respect of some allegations there is sufficient material for the burden of proof to shift so that an explanation is required. The Tribunal here had directed itself to take a two stage approach. It might not have needed to do so, but it did, and having done so it failed to adopt its own declared approach. The findings that were made generally at paragraph 240 were in any event not fully and properly justified on the facts. Thus Mr Sheldon drew attention to the fact that at paragraph 240.7 one of the features that caused the Tribunal to think that it was appropriate to shift the burden of proof under section 136 was expressed as follows:
“240.7. There was a culture of attributing inappropriate nick names: starting with Mr Thomson as, “piggy eyes”, (an apparent reference to the way he looks at women), the Claimant referred to as, “Evil Lyn” and Ms Isaacs as, “Miss Tease” which she understandably found very offensive. The Respondent’s denial of such a culture and of awareness of such name calling lacked credibility, particularly in light of Ms Isaacs’ evidence. Sexists are not necessarily racists, and racists are not necessarily sexists. However, the existence of such a culture is indicative of a working environment were [sic] diversity issues are not taken seriously and where there is a lack of respect for such issues. To the point, Mr Thomson headed up a department where such a culture was able to exist.
240.8. That brings us to the Hitler comments. We have explained above why it is that any person from a minority group, (well really, any right thinking person) would regard any favourable reference to Hitler in the workplace as offensive. Any person in a position of senior management ought to understand that. This is another indication of a lack of appreciation of diversity issues. However, there is more to it than that; that a person makes a favourable reference to Hitler, might be an indication of an underlying admiration for him, or of underlying racist views.
240.9. Mr Thomson must have understood that the reference to Hitler might create difficulties for him in this case, that is why he denied in his witness statement ever seriously suggesting that Hitler had good management ideas and he states that he has no knowledge of discussing Hitler with anyone. The problem for Mr Thomson is that two credible witnesses, one for the Respondent, do recall him discussing Hitler, on 2 separate occasions. Not only did that undermine Mr Thomson’s credibility as a witness, it cast a shadow over him as a person, it is something from which the inference may be raised that he is a person who may well treat a person less favourably because of their race.
240.10. That in turn, leads us to our concerns regarding Mr Thomsons’ [sic] personal involvement in the process that led to Ms Jarrett’s dismissal. ELS [Essex Legal Services] is clearly very much run by Mr Thomson. Whilst Human Resources have devised a scheme for implementation of the reorganisation that was professional, reasonable and fair, it was clear that all key decisions on implementation were deferred to Mr Thomson. It was he who:
240.10.1. Finally decided on where the ring-fences should be;
240.10.2. Decided who should be allowed to slot-in and who should not, and
240.10.3. Decided that whilst there were two Band 6’s interviewed and appointable to Sector Leads for Employment and for PI/Civil Lit, Ms Jarrett should be offered one post as suitable alternative employment, but not the other, offering her a job he knew she did not want and was unlikely to take.”
29. The Tribunal went on to say that the combination of those facts together with the allegations it upheld gave sufficient basis for shifting the burden of proof. As a discrete though linked point to the first ground Mr Sheldon makes a number of complaints about these findings. He argues that to use sexist nicknames is no evidence that Mr Thomson, as head of the department where those nicknames were used, himself had an attitude toward the Claimant that discriminated against her because of her race. He complains as to the comment about Hitler. He argues that for Mr Thompson to say that there were things that Hitler did that might be appreciated - he gave the example of the way in which one might sway a mass meeting by advocacy or eloquence - was not to approve of the policies that he adopted in power. He argues that the reference was said to be no more than a reference to his management techniques and that in itself carried no connotation of racism. As to the last words of paragraph 240.10, it was unfair, and unevidenced to conclude that Mr Thomson had offered the Claimant a job he knew she did not want and was unlikely to take when there was no evidence that she had expressed any view about wanting or not wanting that particular job prior to the offer of it, and indeed when the evidence showed that, for some time after the offer had been made and initially rejected, it had been held open in case the Claimant might change her mind. These facts suggested that he wanted to keep, not to lose, her services.
30. Mr Sheldon also drew attention, in the same vein, to the way the Tribunal dealt with allegation (xi), in which the Tribunal accepted that the Respondent through Mr Thomson had instructed a junior member of the business support team in September 2011 to prepare a written statement on the Claimant’s state of mind when she was absent from work due to illness. It commented on that at paragraph 222.2:
“222.2. The allegation is therefore made out and does amount to a detriment; asking junior staff to gather evidence on a managers [sic] mental health undermines that manager. It is also suggestive of a stereotype that upset and distress on the part of people of ethnic minority can be seen as a mental health issue whereas they might not be on the part of a White British person.”
The Claimant herself had said, “Perhaps he thought as a black person I was more susceptible to mental health problems”. That was the only direct evidence by which that evidence might be supported if it were not to be a matter of judicial notice: Mr Sheldon complained this was speculative and insufficient.
31. As to this ground, Mrs Belgrave relies heavily upon the fact that the evidence of Ms Isaacs was accepted in a way in which that of the main protagonists was not. She had (see the Notes of Evidence) reported that Ms Jarlett had complained to her that the Claimant had been difficult to get to know - whereas she, Ms Isaacs, had had no such problem. She said she had been approached by Ms Jarlett to make comments upon the mental health of the Claimant prior to her going off sick, and the Tribunal preferred her evidence on that matter to that of Ms Jarlett, who denied there had been such a request. She had given evidence of the general culture and the use of nicknames. This was therefore a case in which lies were told by the central witnesses for the Respondent. The making of lies may be sufficient when added to other material to justify a reversal of the burden of proof (see, for instance, the observations of HHJ Serota QC in Solicitors Regulation Authority v Mitchell UKEAT/0497/12, citing Birmingham City Council and Anor v Millwood UKEAT/0564/11 in particular at paragraphs 26 and 27).
32. We do not need, it seems to us, to descend into detail in dealing with ground 2. We are of the view that it was an error to take a blanket approach, and to regard the burden of proof as shifted on all allegations. Although it may create a difficult task for some Tribunals who are faced with a very significant number of allegations to analyse each by asking in respect of each separately whether less favourable treatment by reference to an actual or hypothetical comparator has been established, whether detriment exists and whether in the light of those findings and others the burden of proof might be shifted, in practice we think that those problems can be overstated. Although each allegation must of course be looked at separately, since it forms a separate complaint, the fact that there are other allegations that are thought individually to be substantiated will give force to the suggestion in respect of the next allegation that it too is to be substantiated, and the next beyond that, such that there is such evidence as justifies the reversal of the burden of proof in respect of each of those allegations. Each allegation if substantiated necessarily has an effect upon each other allegation, just as each allegation if not substantiated may equally inform a decision on another though it will not be decisive of it. If the Tribunal had made it clear that it was adopting some such approach, we would have found it easier to accept it, but it did not. Its adoption of a blanket approach was unreasoned.
33. As to the individual matters that we have outlined, we think there is considerable force in Mr Sheldon’s observations about the use of sexist nicknames generally amongst staff not justifying an inference that their most senior manager, not himself said to have used those nicknames, could be inferred to be racist because of it. We think too there is very considerable force in the suggestion that the stereotype referred to by the Tribunal is one that is unevidenced, unfamiliar and not one that the Tribunal could properly draw for itself. We accept that there was no evidence that Mr Thomson knew that the Claimant did not want the job of PI/Civil Litigation, even if there was evidence that she did want the employment law post and therefore evidence that she would have preferred that post. To prefer one post to another is not the same thing as rejecting that other. We were not attracted by his attempt to explain away the Hitler comment - we think that such a comment cannot so easily be regarded as casting no shadow upon the speaker - but we do note that it is ambiguous. In a case such as this it may be indicative of an admiration not for the policies of racial cleansing for which Hitler is so notorious but for an approach to management that is macho. The former is indicative of racism, whereas the latter is indicative of what might be seen by those subject to it as unfavourable treatment, but on its face is racially neutral. One comes back to the point that Mr Sheldon made at the outset: whether what the Tribunal had accepted here was unfavourable, as opposed to discriminatory, treatment.
Ground 3
34. As to ground 3, he argued that there had been a number of findings of fact in respect of which the Tribunal simply got it wrong. Mrs Belgrave’s response to this is first the general response that a Tribunal should not too easily be criticised, particularly when it deals with a mass of facts, for making some errors; it is almost inevitable that it will. She argued that to make a mistake of fact was not to make a mistake of law. We are clear that it would not be a mistake of law unless it were material. We have therefore looked at the factual errors alleged by Mr Sheldon and asked first of all whether they were factual errors and secondly whether if so they were material in the circumstances of this particular case.
35. We should add that at this stage we do not need, it seems to us, to make conclusions in respect of grounds 3, 5 and 6, because we have sufficiently decided the case such that a positive finding in favour of the Respondent on the appeal in respect of those grounds would not affect the conclusion, but because it has been argued and for the sake of completeness we should set out our reasoning shortly.
36. We accept that the Tribunal was in error when it said at paragraph 206.3.4:
“206.3.4. Reference was made to someone called Ms Odigie who was Black African who had apparently left and to whom attempts had been made to persuade her to stay. We do not know who this person is, it was not explained to us by either party.”
Suffice it to say that it is agreed between counsel that indeed the Tribunal had been given information about her. She was named in Mr Thomson’s witness statement. The significance of her case was in part explained by him, and the Tribunal therefore was in error. Was this material? We are persuaded that it was. The reason why, is that the Tribunal concluded that Mr Thomson had acted as he did albeit because it reversed the burden of proof, but also found that he was acting because of the race of the Claimant. In assessing that question it is plainly relevant, though in no sense decisive, to know how that person has treated others of the same ethnic origin in the same or a similar position under his management. His evidence was that he had made efforts to prevent Ms Odigie leaving the post and had wished her to continue. She had been a senior manager. In the event, she did not stay. Mrs Belgrave makes the point that the Tribunal did not know why she had left; she was given leave of absence but did not return. That may be true, but the point was not her reason for leaving or staying; the issue was what if anything this episode was capable of showing about Mr Thomson and his attitude and approach. As to that, plainly, the latter was relevant.
37. The second incident on which Mr Sheldon relied was that the Tribunal had said:
“It may be that Ms Thomas was a more able employment lawyer than Ms Jarrett, but we were not offered any evidence about that.”
38. He submitted this was an error of fact; we do not agree. There was ample evidence that she was an employment specialist who had spent her professional life largely if not entirely in that field, but as to her ability there was, as far as we can see, no evidence of that prior to her appointment to the post. There was evidence afterwards that showed that she was indeed of the highest quality, but we do not think that its finding, relating to the employer’s perception of her qualities before appointed was in reality an error of fact by the Tribunal, and we have been persuaded by Mrs Belgrave that it was not material to the decision. This is not to say that a proper comparison did not need to be made between Ms Thomas and the Claimant in respect of the post, as to which comparative experience was relevant.
39. Mr Sheldon made other suggestions that seemed to us, taking it generically, to be no more than arguments about fact, and to be re-running submissions that were or might have been made to the Tribunal in respect of issues on which the Respondent failed below. Amongst them was the suggestion that there was no evidence that would justify the Tribunal saying in respect of Mr Thomson that he probably made remarks suggesting that his approach might be to get rid of people he did not want because in its view it was reflective of his approach. It was suggested that evidence of his having made such comments had been provided to the Claimant by a Mr Lapite, but the fact that Mr Lapite had had that conversation with Mr Thomson was never put to Mr Thomson in evidence. Mrs Belgrave accepts that that is true in so far as it goes, but she has pointed out that the general allegation that he had taken the view that the reorganisation would be a means of getting rid of people he did not want, and had expressed it, was made to him in the course of cross-examination so he had every opportunity to deal with the point. It was therefore not unfair to rely upon it and the Tribunal was entitled to draw the conclusion it did.
40. We accept the final point that was made: that the Tribunal’s comment at paragraph 249.1 that they had not been referred to evidence that suggested that other senior managers were treated in the same way in this process by Mr Thomson was not entirely correct. This related to an allegation that in itself was an allegation, rather unusually found by the Tribunal to be the case, that he had given evidence in cross-examination as to his practice, as the Notes of Evidence reveal (see Notes of Evidence, page 6), and that had been advanced in closing submissions at paragraph 12 on behalf of the Respondent. Though satisfied that the conclusion as it goes is not sufficiently expressed, we do note that we are not clear that there was evidence in respect of other managers that the outcomes of appraisals, though formally concluded by April, had not been notified to them until June, which was the essential thrust of the complaint of the Claimant in respect of her treatment with regard to her performance appraisal.
Ground 4
41. We turn to ground 4, which is in relation to victimisation. The Tribunal had to consider four protected acts after which and by reason of which it was said that the Claimant was victimised. Those were as set out by the Tribunal at paragraphs 8.4(3)(b)(i)-(iv). Between paragraphs 257 and 264 the Tribunal disposed of two of those, (ii) and (iii), as being protected acts on which she could rely. It found that the Claimant had complained of race discrimination to Ms Jarlett on 16 September 2011, and that when she issued her claim form to the Employment Tribunal on 8 February 2012 she had alleged race discrimination. The sole detriment relied upon in the complaint of victimisation was the act of dismissal. Dismissal factually was consequent upon the failure of the Claimant, for reasons she explained, to accept the post that had been offered to her as suitable alternative employment; in the event, her redundancy, as it happened, which she had declined to regard as suitable and to accept. She was given notice of termination in December prior to the issue of the claim form. The act of dismissal and the decision to dismiss therefore could not have been a consequence of the second of these remaining two alleged protected acts, the issuing of the claim form: there was no suggestion here that there was a proper opportunity or occasion on which the Respondent could have and should have reconsidered its decision.
42. This left and leaves the complaint that the Claimant made to Ms Jarlett on 16 September 2011 as the only protected act which might have led to the detriment of dismissal. The Tribunal answered the question of detriment in paragraph 263:
“263. The question then arises, was the dismissal of Ms Jarrett an act of victimisation? In some respects this is otiose, as we have already found that the act of dismissal was an act of discrimination. However, we perceived a hardening of attitude toward Ms Jarrett after her meeting with Ms Jarlett on 16 September and in particular have seen that Mr Thomson was irritated by Ms Jarlett’s [sic] correspondence; referring to her heavy dose of fiction, commenting that she had not been doing the job she was paid for and reacting to the grievance by asking if he could now terminate her employment.”
43. The grievance was a matter that the Tribunal had specifically found was not a protected act. The question that arises here is against whom and on what basis did the Tribunal make these findings. Mr Thomson, whose behaviour is that which gave rise to this detriment, would under the law have to know or be in a position where he should have known that there had been a protected act before he could victimise the Claimant for having done it. Mr Sheldon’s complaint is that there was no evidence that he did. Mrs Belgrave’s response is that it is to be inferred from the circumstances. Our conclusion is that if it were to be inferred from the circumstances the Tribunal needed to say more as to those circumstances from which it inferred his knowledge, without which it could not conclude that however unfairly and unreasonably he acted towards the Claimant this was because she had made a complaint to another in a conversation to which he was not at the time party. The appeal in respect of ground 4 is upheld.
Ground 5
44. As to ground 5, the complaint is that the Tribunal reversed the burden of proof when dealing with the Employment sector lead role; it did this because the Tribunal said in paragraph 244.2, considering in dealing with the evidence of Mr Thomson to the effect that clients had said that the Employment team needed to be led by someone who was more of an employment specialist, that they had “been shown no objective evidence of that”. Mr Sheldon’s argument is that the burden of proof is to be discharged on a balance of probabilities. Here, he submits, the Tribunal was showing that it required more than that; it required not just a balance of probabilities but in addition what it would term “objective evidence”. This set the standard too high.
45. We do not accept that this is a proper and fair reading of what the Tribunal was saying. The Tribunal was saying that it did not accept Mr Thomson’s evidence that there genuinely was a criterion that the Employment team should be led by an employment specialist. Part of the reason for it doing so was that there was no (what it called) objective evidence to show that that was a requirement of the post. We do not need to say more about that particular allegation.
Ground 6
46. In ground 6 the Respondent argues that the Tribunal erred in law in taking a “blanket approach” to the question of the Respondent’s witnesses’ credibility. It is true that in respect of the last matter to which we referred above, that of Mr Thomson’s assertion that an employment specialist was required for the team, it rejected his evidence in part upon the basis that he was not a credible witness. That might suggest a blanket approach, but in our view, taking the holistic view that Mrs Belgrave has urged us to do, we see this Tribunal as having been careful on a number of occasions to reject the evidence of some of the Respondent’s witnesses, as well as much of what the Claimant herself said, whilst accepting other parts of this evidence. This is not indicative to us of a blanket approach; it is indicative, rather, of a Tribunal that took some care in respect of each of the points it was considering to ask whether it did or did not accept the totality of the evidence before it. It is trite law that in respect of any witness a fact-finder may accept all, reject all or accept some and reject the rest of that which the witness has to say. Juries up and down the country are directed in such terms every day. Accordingly, we see no real substance in grounds 5 and 6, and they are dismissed.
Ground 7
47. As to ground 7, it is common ground that this has to be allowed. The ground is that the Tribunal failed to pay regard to section 212(1) of the EqA in concluding that it should make a finding of harassment as well as discrimination. In section 212(1) the Act provides:
“‘detriment’ does not, subject to subsection (5), include conduct which amounts to harassment;”
48. Subsection (5) provides:
“(5) Where this Act disapplies a prohibition on harassment in relation to a specified protected characteristic, the disapplication does not prevent conduct relating to that characteristic from amounting to a detriment for the purposes of discrimination within section 13 because of that characteristic.”
49. In short, what is argued is that it was not open to the Tribunal here to conclude that the same conduct found to amount to acts of detriment for the purposes of a race discrimination complaint also amounted to harassment. That is accepted by the Claimant.
50. We should add that in dealing with harassment the Tribunal - and here, again, we accept Mr Sheldon’s unopposed submissions - did not explain nor analyse the perception of the Claimant nor the other circumstances of the case nor whether it was reasonable for the conduct to have the effect of creating the proscribed environment set out in section 26(1)(b) of the EqA 2010, and had provided no or insufficient reasons for its conclusion that such an environment had been created.
Conclusions
51. We go back to our overview of the case. We have allowed the appeal in respect of grounds 1 and 2; though it was unnecessary for our decision also to consider grounds 3, 5, 6 and 7, we have found grounds 3 and 7 to be substantiated, the latter by agreement; and, so far as ground 4 is concerned, we have set out our findings above. The appeal is allowed on grounds 1, 2, 3, 4 and 7; it is dismissed in so far as it relates to grounds 5 and 6.
52. It is a great pity that, given the findings of fact which are highly sensitive to the witnesses and the evidence they gave, the facts of the complaints that remain have yet to be determined by a competent Tribunal. We do not accept Mr Sheldon’s invitation to determine the matter for ourselves. We agree with both counsel that it has to be remitted. Mrs Belgrave asked us to remit to the same Tribunal, relying upon its professionalism. Mr Sheldon urges us that this decision was totally flawed, that this is not a case in which the Tribunal can sensibly have a second bite at the cherry and in effect submits that it would give a proper sense of injustice to the Respondent where a Tribunal that had so clearly expressed its view as to the merits of some of the witnesses that that Tribunal should rehear the matter and come to conclusions in the light of this Judgment.
53. We have come to the conclusion, inconvenient though it may be to the parties and expensive, that the matter will have to be reheard. As to that, having indicated our decision, though not at such great length, two hours ago, we invited counsel to consider what the scope of the remission should be. The grounds that were not rejected will be remitted to a fresh Tribunal for determination. At that determination it will be open to either party to call any evidence as to any of the facts, though we invite the parties to agree as many of the facts as they can, taking as their starting point perhaps those facts that have been found by this Tribunal, and noting that any unreasonable failure to do so may if the Tribunal hearing the case thinks it appropriate be taken into account in assessing whether there has been unreasonable conduct in the litigation in order to resolve any application there may be for costs. We make that latter comment bearing in mind that the litigation is likely to be time consuming and expensive of resources and money and we would not wish either party to be subject to any form of tactical pressure arising out of a failure to agree that which ought to be agreed. The purpose is to ensure that those matters that are really in dispute are fairly resolved as between the parties.
54. To that end we would recommend, though we leave it to the Tribunal to decide, that it holds a Preliminary Hearing in order to manage the case prior to the hearing to ensure that as much as possible is done to ensure that the next hearing before the fresh Tribunal will be as efficient and as concise as it is reasonable to hope.