United Kingdom Employment Appeal Tribunal
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URL: http://www.bailii.org/uk/cases/UKEAT/2016/0139_15_1702.html
Cite as: [2016] UKEAT 0139_15_1702, [2016] UKEAT 139_15_1702
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EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
Before
CROYDON HEALTH SERVICES NHS TRUST APPELLANT
Transcript of Proceedings
JUDGMENT
APPEAL & CROSS-APPEAL
APPEARANCES
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(of Counsel) Instructed by: Capsticks Solicitors LLP 1 St Georges Road Wimbledon London SW19 4DR
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(of Counsel) Direct Public Access |
SUMMARY
RACE DISCRIMINATION - Direct
HARRASSMENT
UNLAWFUL DEDUCTION FROM WAGES
UNFAIR DISMISSAL - Constructive dismissal
The ET had found that the Respondent directly discriminated against the Claimant (a registered Nurse and Midwife) because of race in its referral of her to the Local Supervising Authority (“LSA”). It further found that the Respondent directly discriminated against her because of race and unlawfully harassed her after she had given notice of resignation (by way of retirement) in (i) demoting her and (ii) pursuing disciplinary and sickness review procedures against her. The ET also found the Claimant’s demotion was without any contractual basis and thus the subsequent reduction in her pay amounted to an unauthorised deduction of wages. That said, the ET did not find that the Claimant had resigned due to any breach of contract by the Respondent (the demotion had taken place after her resignation) but for other reasons.
On the Respondent’s appeal and the Claimant’s cross-appeal.
Held: Allowing the appeal in part and dismissing the cross-appeal.
In reaching its conclusion that the referral of the Claimant to the LSA had been an act of direct race discrimination, the ET had drawn a direct (“statutory”) comparison with a previous employee of the Respondent. Allowing that comparison was identified in the list of issues (although not particularly clear) and that there had been a relevant difference in treatment between the two cases (again, unclear), the ET failed to demonstrate regard to potentially material differences between the two cases; an omission that might have been apparent if the ET had engaged with the Respondent’s explanation for referring the Claimant to the LSA but it did not. That rendered the finding of direct race discrimination in respect of the LSA referral unsafe and the ET’s conclusion in this regard could not stand.
As for the findings on the post-resignation complaints, the ET had again relied on the same comparison - this time, treating the former employee as an evidential comparator - without engaging with the material differences between the two cases. Whilst the individual cases did not have to be identical, the hypothetical comparator thereby constructed had to involve a like with like comparison; the ET’s failure to engage with this point again rendered its decision unsafe, both on direct race discrimination and harassment.
The ET had, however, reached a permissible conclusion on the unauthorised deduction claim; the Respondent had not identified a relevant contractual basis for the demotion.
On the cross-appeal, the Claimant had challenged the ET’s findings on breach of contract but that still left its conclusion that she had not left in response to any breach of contract. That being so, the cross-appeal could not succeed and would be dismissed.
HER HONOUR JUDGE EADY QC
Introduction
1. I refer to the parties as the Claimant and Respondent, as below. This is the hearing of the Respondent’s appeal and the Claimant’s cross-appeal against a Judgment of the London (South) Employment Tribunal (Employment Judge Macinnes, sitting with members on 13-23 October and in chambers on 6 and 7 November 2014 and 2 January 2015; “the ET”), sent out on 9 February 2015. The Respondent appeared then and now by Mr Scott of counsel. A consultant represented the Claimant below; she now appears by Mr Dutton of counsel.
2. By its Judgment the ET (relevantly) upheld the Claimant’s claims of direct race discrimination, harassment because of race, and unauthorised deductions; the Respondent appeals from those rulings. The ET further found, however, that the Respondent did not dismiss the Claimant, a finding against which the Claimant cross-appeals.
The Background Facts
3. The Claimant, who is black and of African descent, was employed by the Respondent as a Midwife from 21 March 2005 until her retirement in May 2013, at which point she had been a Staff Nurse and Midwife for over 31 years. During the period with which the ET was most concerned - 2012 onwards - a number of incidents occurred involving the Claimant, raising concerns about her conduct. There was also an ongoing issue regarding her sickness absence. I do not set out the ET’s findings on these matters save as necessary for this appeal.
4. In February and May 2012 complaints were made about the Claimant by other Midwives (including other black Midwives) and in April and May there were two separate Doctors’ complaints about her. More particularly, concerns were raised as to whether the Claimant failed to take appropriate action when, on 12 May 2012, she was looking after a patient who had a pathological cardiotocography (“CTG”) - problems with her baby’s heart rate indicating distress and requiring regular monitoring and escalation; “the CTG incident”.
5. Having conducted a summary risk management investigation into the CTG incident, Ms Fosbrook (the Respondent’s Governance and Risk Support Midwife) suspended the Claimant on full pay as from 25 May 2012, reporting this to the Local Supervising Authority (“LSA”). The LSA is a statutory body with a supervisory role in respect of Nurses’ and Midwives’ professional standards; it sits within health service organisations, providing mentoring and support, but may refer Midwives to the Nursing and Midwifery Council (“NMC”), the body that registers and regulates the Nursing and Midwifery profession.
6. Ms Brintworth, the LSA’s Supervisor of Midwives, duly carried out a supervisory investigation into the CTG incident. She reported on 9 October 2012, recommending the Claimant undertake a period of supervised practice and that the matter be referred to the NMC.
7. Meanwhile, within the Respondent, a disciplinary hearing in respect of the CTG incident took place on 17 September and 25 October 2012. The allegations were found substantiated and the Claimant issued with a final written warning, to remain on her file for 18 months. The Respondent also confirmed that the matter would be referred to the NMC. The Claimant appealed but was unsuccessful; a decision communicated to her on 28 January 2013.
8. On 5 December 2012, the Claimant had attended a stage two sickness absence review meeting and, by letter of 11 December, she was given a warning for poor attendance, to remain on her file for nine months. On 14 January 2013 the Claimant appealed against that outcome.
9. On 21 January 2013 the Claimant was invited to attend two disciplinary hearings, relating to the Midwives’ and the Doctors’ complaints. Although the cases were to be dealt with separately, given the commonality of themes (relating to the Claimant’s attitude, behaviour and communication when dealing with colleagues) they were to be considered at the same hearing. The invitation warned this could lead to formal disciplinary action up to and including dismissal and the Claimant anticipated the result would indeed be her dismissal, something the ET recorded as also anticipated by the author of the letter, Ms Morling (the Director of Midwifery), albeit that is a finding with which the Respondent takes issue.
10. By letter of 14 February 2013 the Claimant requested special class retirement with effect from 21 May. The ET found that was the Claimant’s letter of resignation.
11. On 25 February 2013, after a hearing, the NMC imposed conditions of practice on the Claimant for 18 months. On 28 February - the day arranged for the disciplinary hearings - the Claimant went on sick leave, signed off as suffering “stress/work related”. She did not return.
12. By letter of 28 February 2013, without warning or consultation, the Respondent demoted the Claimant from Band 7 to Band 2, explaining:
“… we are unlikely to meet imminently to discuss the NMC Interim Order. Therefore I need to inform you that with effect from the 25th February 2013, you are no longer able to work in any clinical setting or any clinical role as a registered Nurse or Midwife. Consequently, you are presently, unable to fulfil the requirements of your contract and your grade will be changed to a Band 2 from this point to reflect the restrictions noted above. You were placed in the administrative role to support you pending the Local Supervisory Practice programme; however, the LSAMO to date has been unable to secure a place for the programme. The decision to downgrade you has been made in consideration of the recent subsequent NMC order. Should you wish to appeal against this decision then please do so to Michael Burden, Director of Human Resources by 25th March 2013.”
The letter also confirmed the disciplinary hearing would be rearranged for 8 March 2013.
13. The consequence of the Respondent’s decision to demote the Claimant should have been the loss of her right to special class retirement, although in fact she did not lose any rights in that regard. She appealed against her demotion but any hearing in respect of that was postponed pending medical notification that she would be fit to attend.
14. Since early March 2013, the Respondent had been seeking to arrange an Occupational Health appointment for the Claimant and also a long-term sickness review and stage three meeting, albeit the Claimant had said she wished to be left alone, having been advised that she needed to concentrate on her health. After a number of rearranged or missed appointments, on 17 April the Claimant forwarded a Consultant’s report, confirming she had been advised to avoid work related issues. Although the Respondent stated it would need its own Occupational Health report, thereafter the matter was left. The Claimant’s ill health absence had also impacted upon the disciplinary process in respect of the Midwives’ and the Doctors’ complaints. After the initial postponement, the hearing was again vacated and rearranged for 19 April, but, when apparent the Claimant would still be unable to attend, the Respondent confirmed it would be further postponed until such time as she was medically able to do so. Ultimately, that never happened; the Claimant’s employment duly ended upon her retirement.
The ET’s Conclusions and Reasoning
15. On the claim of direct race discrimination the ET first considered what it characterised as the Claimant’s case that, in referring her to the LSA in respect of the CTG incident, the Respondent had treated her less favourably than a Ms Jarman. Ms Jarman was a white comparator - also a Band 7 Midwife - who had been given a final written warning after a finding of gross misconduct in failing to follow standard protocols when attending a home birth in July 2008 as a consequence of which the baby had died (in passing, I note that paragraph 224 of the ET’s Reasons refers to this as being in 2010, but that must be a typographical error). Ms Jarman, the ET recorded, had not been referred to the LSA or the NMC and was ultimately not required to undertake a recommended six-month period of management supervision. In a meeting with the Respondent’s then Head of Midwifery, Ms Brittain, Ms Jarman had said she was intending to retire in five months’ time and could not bear to return to the labour ward. It was agreed she would work reduced hours in the antenatal clinic until her retirement, meeting with her line manager to ensure adequate supervision but not otherwise completing the period of management supervision.
16. The ET found that the Claimant - referred to the LSA after only a summary risk management investigation - was treated less favourably as compared with Ms Jarman and that this amounted to direct race discrimination:
“250. Although the Respondent has known that the Claimant will rely on Ms Jarman as a comparator since before the preliminary hearing on 9 August 2013 nevertheless it produced no evidence of the reason for the decision not to report Ms Jarman to the LSA (or the NMC). The treatment of the Claimant was clearly less favourable than the treatment of Ms Jarman to the extent that as at 29 May 2012 the only material difference in their circumstances was that the consequences of Ms Jarman’s gross misconduct was the death of a baby while happily in the case of the Claimant’s gross misconduct no damage to the baby resulted. The Claimant is black. Ms Jarman is white. These bare facts only indicate a possibility of discrimination. However the difference in the consequences of the Claimant’s and Ms Jarman’s gross misconduct was so extreme that it was our unanimous judgment that we should ask the Respondent to explain why we should not draw the inference that the difference in treatment of the Claimant and Ms Jarman was because of her race.
251. The Respondent’s explanation was the reason for the difference in treatment was [sic] that Ms Jarman was shortly to retire. This we have found to be false.
252. The Claimant was reported to the LSA within 17 days of the CTG incident. In Ms Jarman’s case the baby died in the early hours of 12 July 2008. There was an informal meeting on 16 July 2008, an investigation meeting on 29 July 2008 and a disciplinary hearing on 17 October 2008. The issue of retirement was not discussed at any time before it was first raised by Ms Jarman at her meeting with Ms Brittain of 24 March 2009.
253. In the absence of any other explanation it is our unanimous Judgement that the Respondent treated the Claimant less favourably than Ms Jarman in this respect because of her race. The claim of direct discrimination is made out.”
17. Relevantly, in addressing the post-resignation complaints (as to which, see below), the ET observed that Ms Jarman was not:
“261. … a statutory comparator as her and the Claimant’s circumstances were in material respect different. Nevertheless there was evidence from which we could infer how a hypothetical statutory comparator would have been treated.”
18. Otherwise, the ET did not find the Claimant’s case made out regarding the other complaints made against her.
19. The ET then turned to the Respondent’s treatment of the Claimant after her letter of resignation of 14 February; the post-resignation complaints. It observed that, during the course of the hearing, the issue as to how the Respondent treated the employees who were shortly to retire (at paragraph 260 the ET uses the word “resign”, but that must be a typographical error) had been extensively canvassed; the Respondent’s case being that its benign treatment of Ms Jarman was explicable because of her impending retirement. The ET explained its approach to the Respondent’s case in this regard as follows:
“262. Although we have found the Respondent’s explanation of the failure to refer Ms Jarman to the LSA because she was shortly to retire was false nevertheless we inferred from that statement that the Respondent would normally expect to treat employees who are shortly to retire with consideration and sympathy appropriate to their impending retirement. …”
20. It found that the Respondent’s treatment of Ms Jarman was indeed:
“264. … an example of the considerate/sympathetic attitude that it was the Respondent’s practice to show to people about to retire. …”
21. It contrasted that with the response to the Claimant, who had even less time to go (three months, as opposed to Ms Jarman’s five) before her retirement.
22. On the Claimant’s demotion to Band 2 the ET found:
“265. Taking the demotion first we find that it amounted to a fundamental breach of the Claimant’s contract of employment. The contract of employment did not entitle the Respondent to reduce the Claimant’s wages in the event of the NMC making an Interim Order as it did. The Staff Policy dealt only with lapsed registrations. Nor was the contractual status of the Staff Policy clear. The Claimant’s contract required compliance with policies procedures and protocols. This deals with the way in which an employee should conduct herself. The Claimant did not waive the breach. She protested by appealing against the decision.
If the Respondent had wished to terminate the Claimant’s contract as a Band 7 midwife and offer the Claimant a new contract as a Band 2 HCA it would have had to give the Claimant six week’s [sic] notice.
266. We particularly noted that the Claimant was not consulted or given any warning of the decision (as Ms Jarman was by Ms Brittain regarding her employment for last 5 months [sic]). Ms Morling did not write to the Claimant saying that she was contemplating this decision giving the Claimant an opportunity to comment. No effort was made or opportunity given to the Claimant to find alternative work which would either not involve with demotion or involve a lesser demotion.”
23. It noted the Respondent’s explanation for the treatment - as the Claimant was no longer able to undertake clinical work (essential for a Band 7 Midwife) she should be demoted to Band 2 - but observed it had not taken account of the fact that the Claimant was off sick so could not undertake Band 2 work either. Unlike the response to Ms Jarman, no consideration or sympathy was given to the Claimant because she was shortly to retire, and there was no attempt to consult. Further, there had been a determined and vigorous pursuit of the disciplinary process (in respect of the Midwives’ and Doctors’ complaints) and the sickness review process, notwithstanding the Claimant was certified sick with work related stress, and the Respondent’s explanation - it had to follow process - indicated neither consideration nor sympathy.
24. On the Respondent’s post-resignation conduct, the ET concluded:
“275. Having regard to Ahsan [v Watt (formerly Carter (sued on his own behalf and on behalf of the other members of the Labour Party) [2007] UKHL 51, [2008] IRLR 243] the inference we have drawn is that a white person such as Ms Jarman was and would be treated with concern for their expression of concern such as not being able to “bear it” and their impending retirement and consequently the Respondent would temper its actions appropriately with a degree of consideration and sympathy. In the case of the Claimant whose period to retirement was shorter and whose distress was greater, and who was off sick the Respondent did not temper its actions in any way at all.
Its explanation that it was following the processes merely begs the question, why?
276. In the absence of any other explanation it is our unanimous judgment that this was less favourable treatment. The Claimant was considered less worthy of consideration or sympathy than a hypothetical white comparator because of her race. It is our unanimous judgment that the Respondent discriminated against the Claimant because of her race.”
25. The ET further found the Respondent’s conduct after the Claimant’s resignation was unwanted and created an intimidating, hostile and offensive environment for her, and it was reasonable for her to have the perception of that conduct as such. Moreover, as the unwanted conduct related to the Claimant’s race (see above), it amounted to unlawful harassment.
26. As for the unauthorised deductions claim, there was no contractual provision entitling the Respondent to reduce the Claimant’s wages from Band 7 to Band 2 and she had not consented to it; the reduction in her pay amounted to an unauthorised deduction.
27. On the question of dismissal, the ET concluded the reason the Claimant had resigned was because - in the light of the letter of 21 January 2013 inviting her to two disciplinary hearings and the other events around that time, such as the notification of the refusal of her appeal against the final written warning for the CTG incident and the forthcoming NMC hearing - she had prudently considered her position and determined to take special class retirement while she could. There was no dismissal.
The Relevant Legal Principles
28. Starting with the claim of direct race discrimination, the statutory definition is found at section 13 Equality Act 2010 (“EqA”):
“(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.”
29. The requirement of less favourable treatment imports the notion of a comparison, although this may be with an actual (“treats”) or hypothetical (“would treat”) comparator. In constructing a hypothetical comparator (and determining how they would have been treated), evidence that comes from how individuals were in fact treated is likely to be crucial, and - of course - the closer the circumstances of those individuals are to those of the complainant, the more relevant their treatment. Such individuals are often described as “evidential comparators”; they are part of the evidential process of drawing a comparison and are to be contrasted with the actual, or “statutory”, comparators (see, on this point, the speech of Lord Hoffmann at paragraph 36 in Ahsan v Watt [2007] UKHL 51, [2008] IRLR 243 HL; set out below in the citation from London Borough of Islington v Ladele [2009] IRLR 154).
30. Whether considering the case of the actual or hypothetical comparator, however, there must be no material difference between the circumstances relating to their case and that of the complainant (section 23(1) EqA).
31. Although direct discrimination thus requires a (real or hypothetical) comparison, the existence of less favourable treatment will not be determinative of the existence of direct discrimination; it still needs to be because of the relevant protected characteristic, albeit the two issues will often be intertwined. The point was made clear in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337, per Lord Nicholls of Birkenhead:
“7. … When the claim is based on direct discrimination or victimisation, in practice tribunals in their decisions normally consider, first, whether the claimant received less favourable treatment than the appropriate comparator (the “less favourable treatment” issue) and then, secondly, whether the less favourable treatment was on the relevant proscribed ground (the “reason why” issue). Tribunals proceed to consider the reason why issue only if the less favourable treatment issue is resolved in favour of the claimant. Thus the less favourable treatment issue is treated as a threshold which the claimant must cross before the tribunal is called upon to decide why the claimant was afforded the treatment of which she is complaining.
8. No doubt there are cases where it is convenient and helpful to adopt this two step approach to what is essentially a single question: did the claimant, on the proscribed ground, receive less favourable treatment than others? But, especially where the identity of the relevant comparator is a matter of dispute, this sequential analysis may give rise to needless problems. Sometimes the less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue. The two issues are intertwined.”
32. The facts of Shamoon illustrate the point. Chief Inspector Shamoon complained she had been treated less favourably than two male officers of the same rank within the same force. She had suffered a detriment by having certain responsibilities removed after complaints had been made about her. Her comparators were men doing the same job and the same duties, but no complaints had been made about them. As Lord Nicholls continued:
“9. … Is this comparing like with like? Prima facie it is not. She had been the subject of complaints and of representations by Police Federation representatives, the male chief inspectors had not. This might be the reason why she was treated as she was. This might explain why she was relieved of her responsibilities and they were not. But whether this factual difference between their positions was in truth a material difference is an issue which cannot be resolved without determining why she was treated as she was. It might be that the reason why she was relieved of her counselling responsibilities had nothing to do with the complaints and representations. If that were so, then a comparison between her and the two male chief inspectors may well be comparing like with like, because in that event the difference between her and her two male colleagues would be an immaterial difference.”
33. And the force of the point is not diminished if the comparison is with the case of a hypothetical rather than actual comparator:
“10. … Let it be assumed that … the most sensible course in practice is to proceed on the footing that the appropriate comparator is a hypothetical comparator: a male chief inspector regarding whose conduct similar complaints and representations had been made. On this footing the less favourable treatment issue is this: was Chief Inspector Shamoon treated less favourably than such a male chief inspector would have been treated? But, here also, the question is incapable of being answered without deciding why Chief Inspector Shamoon was treated as she was. It is impossible to decide whether Chief Inspector Shamoon was treated less favourably than a hypothetical male chief inspector without identifying the ground on which she was treated as she was. Was it grounds of sex? If yes, then she was treated less favourably than a male chief inspector in her position would have been treated. If not, not. Thus, on this footing also, the less favourable treatment issue is incapable of being decided without deciding the reason why issue. And the decision on the reason why issue will also provide the answer to the less favourable treatment issue.”
34. Without seeking to prescribe a one size fits all approach (see paragraph 12 of his speech), Lord Nicholls suggested (paragraph 11) that ETs might sometimes be able to avoid arid and confusing disputes about the identification of any appropriate comparator by concentrating primarily on the reason why the complainant was treated as she was.
35. An ET’s determination of these questions must now also demonstrate proper application of the burden of proof, as laid down by section 136 EqA, so that:
“(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.
(3) But subsection (2) does not apply if A shows that A did not contravene the provision.”
36. Although guidance as to how to approach the burden of proof has been provided by this and higher appellate courts, all judicial authority agrees that the wording of the statute remains the touchstone. That was made clear by the Court of Appeal (see the Judgment of Peter Gibson LJ) in Igen Ltd v Wong [2005] ICR 931, where guidelines were set out in an annexe to the Judgment, with the express caveat that this was not a substitute for the statutory language.
37. In Laing v Manchester City Council [2006] ICR 1519, the EAT noted that the Court of Appeal in Igen had ruled that:
“17. The statutory amendments clearly require the employment tribunal to go through a two-stage process if the complaint of the complainant is to be upheld. The first stage requires the complainant to prove facts from which the tribunal could, apart from the section, conclude in the absence of an adequate explanation that the respondent has committed, or is to be treated as having committed, the unlawful act of discrimination against the complainant. The second stage, which only comes into effect if the complainant has proved those facts, requires the respondent to prove that he did not commit or is not to be treated as having committed the unlawful act, if the complaint is not to be upheld.”
38. The EAT in Laing then went on itself to provide the following guidance:
66. It is only if the claimant succeeds in establishing that less favourable treatment that the onus switches to the employer to show an adequate, in the sense of non-discriminatory, reason for the difference in treatment. That requires a consideration of the subjective reasons which caused the employer to act as he did: see Shamoon … para 7, per Lord Nicholls of Birkenhead.
68. That is not to say that fact and explanation are hermetically sealed compartments. There is plainly a relationship between them. Facts will frequently explain, at least in part, why someone has acted as they have. The fact that an employee has committed misconduct will provide the reason why the employer disciplines him. So facts are not unrelated to the explanation, although they are not to be confused with it.
74. [An] example where it might be sensible for a tribunal to go straight to the second stage is where the employee is seeking to compare his treatment with a hypothetical employee. In such cases the question whether there is such a comparator - whether there is a prima facie case - is in practice often inextricably linked to the issue of what is the explanation for the treatment, as Lord Nicholls pointed out in Shamoon … paras 7-12, it must surely not be inappropriate for a tribunal in such cases to go straight to the second stage.
75. The focus of the tribunal’s analysis must at all times be the question whether or not they can properly and fairly infer race discrimination. If they are satisfied that the reason given by the employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then that is the end of the matter. It is not improper for a tribunal to say, in effect, “there is a nice question as to whether or not the burden has shifted, but we are satisfied here that, even if it has, the employer has given a fully adequate explanation as to why he behaved as he did and it has nothing to do with race”.”
39. In the case of London Borough of Islington v Ladele [2009] IRLR 154 the EAT gave further guidance on the question of comparison and the application of the burden of proof as follows:
“40. …
(1) In every case the tribunal has to determine the reason why the claimant was treated as he was. As Lord Nicholls put it in Nagarajan v London Regional Transport [1999] IRLR 572, 575 - ‘this is the crucial question’. He also observed that in most cases this will call for some consideration of the mental processes (conscious or subconscious) of the alleged discriminator.
(2) If the tribunal is satisfied that the prohibited ground is one of the reasons for the treatment, that is sufficient to establish discrimination. It need not be the only or even the main reason. It is sufficient that it is significant in the sense of being more than trivial …
(3) As the courts have regularly recognised, direct evidence of discrimination is rare and tribunals frequently have to infer discrimination from all the material facts. The courts have adopted the two-stage test which reflects the requirements of the Burden of Proof Directive (97/80/EEC). These are set out in Igen … That case sets out guidelines in considerable detail, touching on numerous peripheral issues. Whilst accurate, the formulation there adopted perhaps suggests that the exercise is more complex than it really is. The essential guidelines can be simply stated and in truth do no more than reflect the common sense way in which courts would naturally approach an issue of proof of this nature. The first stage places a burden on the claimant to establish a prima facie case of discrimination:
‘Where the applicant has proved facts from which inferences could be drawn that the employer has treated the applicant less favourably [on the prohibited ground], then the burden of proof moves to the employer.’
If the claimant proves such facts then the second stage is engaged. At that stage the burden shifts to the employer who can only discharge the burden by proving on the balance of probabilities that the treatment was not on the prohibited ground. If he fails to establish that, the tribunal must find that there is discrimination [original emphasis]. …
(4) The explanation for the less favourable treatment does not have to be a reasonable one; it may be that the employee has treated the claimant unreasonably. That is a frequent occurrence quite irrespective of the race, sex, religion or sexual orientation of the employee. So the mere fact that the claimant is treated unreasonably does not suffice to justify an inference of unlawful discrimination to satisfy stage one. As Lord Browne-Wilkinson pointed out in Zafar v Glasgow City Council [1997] IRLR 229:
‘it cannot be inferred, let alone presumed, only from the fact that an employer has acted unreasonably towards one employee that he would have acted reasonably if he had been dealing with another in the same circumstances.’
Of course, in the circumstances of a particular case unreasonable treatment may be evidence of discrimination such as to engage stage two and call for an explanation: see the judgment of Peter Gibson LJ in Bahl v Law Society [2004] IRLR 799, paragraphs 100, 101 and if the employer fails to provide a non-discriminatory explanation for the unreasonable treatment, then the inference of discrimination must be drawn. As Peter Gibson LJ pointed out, the inference is then drawn not from the unreasonable treatment itself - or at least not simply from that fact - but from the failure to provide a non-discriminatory explanation for it. But if the employer shows that the reason for the less favourable treatment has nothing to do with the prohibited ground, that discharges the burden at the second stage, however unreasonable the treatment.
(5) It is not necessary in every case for a tribunal to go through the two-stage procedure. In some cases it may be appropriate for the tribunal simply to focus on the reason given by the employer and if it is satisfied that this discloses no discrimination, then it need not go through the exercise of considering whether the other evidence, absent the explanation, would have been capable of amounting to a prima facie case under stage one of the Igen test … The employee is not prejudiced by that approach because in effect the tribunal is acting on the assumption that even if the first hurdle has been crossed by the employee, the case fails because the employer has provided a convincing non-discriminatory explanation for the less favourable treatment.
(6) It is incumbent on a tribunal which seeks to infer (or indeed to decline to infer) discrimination from the surrounding facts to set out in some detail what these relevant factors are: see the observations of Sedley LJ in Anya v University of Oxford [2001] IRLR 377 …
(7) As we have said, it is implicit in the concept of discrimination that the claimant is treated differently than the statutory comparator is or would be treated. The proper approach to the evidence of how comparators may be used was succinctly summarised by Lord Hoffmann in … Ahsan … a case of direct race discrimination by the Labour Party. Lord Hoffmann summarised the position as follows (paragraphs 36-37):
‘36. The discrimination … is defined … as treating someone on racial grounds “less favourably than he treats or would treat other persons”. The meaning of these apparently simple words was considered by the House in Shamoon … Nothing has been said in this appeal to cast any doubt upon the principles there stated by the House, but the case produced five lengthy speeches and it may be useful to summarise:
(1) The test for discrimination involves a comparison between the treatment of the complainant and another person (the “statutory comparator”) actual or hypothetical, who is not of the same sex or racial group, as the case may be.
(2) The comparison requires that whether the statutory comparator is actual or hypothetical, the relevant circumstances in either case should be (or be assumed to be), the same as, or not materially different from, those of the complainant …
(3) The treatment of a person who does not qualify as a statutory comparator (because the circumstances are in some material respect different) may nevertheless be evidence from which a tribunal may infer how a hypothetical statutory comparator would have been treated … This is an ordinary question of relevance, which depends upon the degree of the similarity of the circumstances of the person in question (the “evidential comparator”) to those of the complainant and all the other evidence in the case.
37. It is probably uncommon to find a real person who qualifies … as a statutory comparator. … At any rate, the question of whether the differences between the circumstances of the complainant and those of the putative statutory comparator are “materially different” is often likely to be disputed. In most cases, however, it will be unnecessary for the tribunal to resolve this dispute because it should be able, by treating the putative comparator as an evidential comparator, and having due regard to the alleged differences in circumstances and other evidence, to form a view on how the employer would have treated a hypothetical person who was a true statutory comparator. If the tribunal is able to conclude that the respondent would have treated such a person more favourably on racial grounds, it would be well advised to avoid deciding whether any actual person was a statutory comparator.’ ”
40. In Madarassy v Nomura International plc [2007] ICR 867 the Court of Appeal, per Mummery LJ, approved the guidance laid down in Igen, holding:
“54. I am unable to agree with Mr Allen’s contention that the burden of proof shifts to Nomura simply on Ms Madarassy establishing the facts of a difference in status and a difference in the treatment of her. This analysis is not supported by Igen … nor by any of the later cases in this court and in the Employment Appeal Tribunal. It was not accepted by the appeal tribunal in the above-mentioned cases of Network Rail Infrastructure [v Griffiths-Henry] [2006] IRLR 865, para 15 and Fernandez [v Office of the Parliamentary Commissioner for Administration and Health Service Commissioner UKEAT/0180/06] (paras 23 and 24) and by the Court of Appeal in Fox [v Rangecroft] [2006] EWCA Civ 1112, paras 9-18.
55. In my judgment, the correct legal position is made plain in paras 28 and 29 of the judgment in Igen Ltd v Wong:
“28. … The language of the statutory amendments [to section 63A(2)] seems to us plain. It is for the complainant to prove the facts from which, if the amendments had not been passed, the employment tribunal could conclude, in the absence of an adequate explanation, that the respondent committed an unlawful act of discrimination. It does not say that the facts to be proved are those from which the employment tribunal could conclude that the respondent ‘could have committed’ such act.
29. The relevant act is, in a race discrimination case … that (a) in circumstances relevant for the purposes of any provision of the [Race Relations Act 1976] (for example in relation to employment in the circumstances specified in section 4 of the Act), (b) the alleged discriminator treats another person less favourably and (c) does so on racial grounds. All those facts are facts which the complainant, in our judgment, needs to prove on the balance of probabilities.”
…
…
65. There has been a debate in the cases and on this appeal as to what evidence from the respondent is relevant at the first stage. It was observed in Igen … para 24, that the language of section 63A(2) points to the complainant having to prove facts, but there is no mention of evidence from the respondent. The court added that it would be unreal if the employment tribunal could not take account of evidence from the respondent, if such evidence assisted the employment tribunal to conclude that, in the absence of an adequate explanation, unlawful discrimination by the respondent on a proscribed ground would have been established. …”
41. Turning to the harassment claim, the statutory definition is provided by section 26 EqA:
“(1) A person (A) harasses another (B) if -
(a) A engages in unwanted conduct related to a relevant protected characteristic, and
(b) the conduct has the purpose or effect of -
(i) violating B’s dignity, or
(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
…
(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account -
(a) the perception of B;
(b) the other circumstances of the case;
(c) whether it is reasonable for the conduct to have that effect.”
42. Guidance as to how ETs should approach their task in a harassment claim was laid down under the previous legislation in Richmond Pharmacology v Dhaliwal [2009] ICR 724, EAT. Specifically, on the question of the effect of the unwanted conduct, it observed:
“15. … although the proviso … is rather clumsily expressed, its broad thrust seems to us to be clear. A respondent should not be held liable merely because his conduct has had the effect of producing a proscribed consequence: it should be reasonable that that consequence has occurred. … overall the criterion is objective because what the tribunal is required to consider is whether, if the claimant has experienced those feelings or perceptions, it was reasonable for her to do so. … Whether it was reasonable for a claimant to have felt her dignity to have been violated is quintessentially a matter for the factual assessment of the tribunal. It will be important for it to have regard to all the relevant circumstances, including the context of the conduct in question. One question that may be material is whether it should reasonably have been apparent whether the conduct was, or was not, intended to cause offence (or, more precisely, to produce the proscribed consequences): the same remark may have a very different weight if it was evidently innocently intended than if it was evidently intended to hurt. …”
43. As for the unauthorised deduction of wages claim, the statutory protection is provided by section 13 of the Employment Rights Act 1996 as set out by the ET at paragraph 289 of its Reasons.
44. Finally, in respect of the constructive dismissal issue, the ET set out the relevant principles derived from the case law at paragraphs 239 and 240 of its Reasons. In determining an employee’s reason for leaving, however, it has been observed that, whilst objective facts may be relevant in testing what the employee says, they cannot be determinative:
“23. … the enquiry is into what the reason actually was for the Claimant leaving. … there may be other reasons too. There is no need to find a predominant or effective or main reason, so long as acceptance of a repudiatory breach is at least part of the reason for leaving.” (See per Langstaff J in Lochuack v London Borough of Sutton UKEAT/0197/14)
The Appeal
The Respondent’s Case
Direct Race Discrimination
(1) The Reference of the Claimant to the LSA
45. The act complained of was Ms Fosbrook’s reporting of the Claimant to the LSA in respect of the CTG incident. The ET had, however, erred in its approach to the comparator issue. First, because the Claimant had not identified Ms Jarman as the relevant comparator in respect of this allegation. Second, because the ET assumed Ms Jarman was not referred to the LSA, but the evidence (focussed on why she was not referred to the NMC) had not confirmed that; the ET apparently inferred that no reference to the NMC meant no LSA reference. Third, there were material differences between the two cases; specifically, different managers were involved, a factor expressly recognised as relevant in Shamoon.
46. Further, the ET erred in its approach to the burden of proof. It had wrongly proceeded - contrary to Madarassy - on the basis that it was sufficient to identify a difference in status and a difference in treatment. Although it had concluded the difference in treatment was “extreme” (and allowing that an “extreme” difference in treatment might be sufficient to amount to “something more”), that finding was based on material misunderstandings: (1) as to the view the Respondent took of the conduct (it gave final written warnings in both cases); (2) in assuming, as it was not entitled to do, Ms Jarman had not been referred to the LSA; (3) as to the material circumstances (the ET needed to put Ms Jarman in the same circumstances - involving the same managers - as the Claimant, and needed to have regard to Ms Jarman’s indication that she would remove herself from the professional register). Further, in (again, contrary to Madarassy) taking account of what it regarded as a lack of adequate explanation, the ET had erred in finding the Respondent’s explanation to be false: this was a mischaracterisation of counsel’s submission (relating to the NMC referral, not the LSA), not the witness evidence.
47. Even if the burden of proof had shifted, the ET erred by failing to engage with the thinking of the decision maker, Ms Fosbrook (who referred the Claimant to the LSA). The ET neither addressed her reason for the reference - including her understanding of her own professional obligations - nor any reason for rejecting it. Given the seriousness of the finding that the reference constituted an act of direct race discrimination, it was incumbent on the ET to consider that evidence. Relevantly, there had been no complaint about the Claimant’s suspension, but the ET found notifying the LSA of that was objectionable. Alternatively the ET’s Reasons were not Meek compliant (Meek v City of Birmingham [1987] IRLR 250 CA).
(2) The Post-Resignation Acts of Direct Race Discrimination
48. First, the ET erred by adopting as an additional issue the question whether the Claimant was treated with sympathy and consideration in the run-up to her impending retirement.
49. Second, in constructing the hypothetical comparator - using Ms Jarman as the evidential comparator - the ET followed Ahsan but failed to give the parties the opportunity to address it on this. Given the opportunity to do so, the Respondent would have observed that Ms Jarman was not the appropriate evidential comparator: she was not the subject of two continuing disciplinary procedures and an ongoing sickness review procedure, and did not have an NMC restriction on her practice. Allowing that differences need not mean no value could be drawn from the comparison, the material differences between the cases were stark, and deprived the comparison of any significant evidential value (Shamoon, paragraphs 114 and 115).
50. Third, turning to the specific matters of complaint, the ET needed to apply the two-stage burden of proof in respect of each issue. On the demotion issue it erred in placing reliance on Ms Jarman as an evidential comparator when her circumstances were materially different (see above); wrongly treated the burden as having shifted without a prima facie case having been made out and failed to scrutinise the reason for the demotion. On the pursuit of the disciplinary and sickness review procedures, even if pursuing standard procedures was unreasonable, that was not sufficient to shift the burden. Alternatively, the reasoning was inadequate.
51. To the extent the ET found the reference to the NMC was an act of race discrimination, the Respondent also appealed against that; although, Mr Dutton (for the Claimant) accepted this issue had been withdrawn so it was not a matter that concerned me on the appeal.
Harassment
52. As the ET’s conclusion on harassment depended upon its conclusion on direct race discrimination, the two matters must stand or fall together. Separately, the ET wrongly conflated consideration of the Claimant’s subjective perception with the question whether the effect was reasonable (see Dhaliwal), failed to take account of all relevant circumstances and reached a perverse view. There was no explanation of how it concluded the effect was reasonable, tested objectively, and it failed to take account of the circumstances faced by the Claimant - such as the NMC ruling - which might explain the effect suffered: was it reasonable for the Respondent’s actions to have that effect when objectively viewed in context?
Unauthorised Deduction of Wages
53. The Respondent contended there had been no breach of contract. The Registration of Staff policy was expressly incorporated into the Claimant’s contract of employment, and paragraph 5.5 of that policy entitled the Respondent to act, the Claimant’s registration having in substance temporarily lapsed as a result of the NMC interim conditions of practice order.
The Claimant’s Case
Direct Race Discrimination
(1) The Reference of the Claimant to the LSA
54. As to whether the Claimant had identified her reliance on Ms Jarman as a comparator in relation to this issue: paragraph 23 (recording the issues) - which raised the general question whether the acts identified under issues 9.1 to 9.15 amounted to less favourable treatment as compared to “the above-named white comparators” - had been sufficient to do so.
55. Turning to the ET’s treatment of that issue and the application of the burden of proof: it did not simply rely on a difference in status and a difference in treatment, but, even if it did, there was nothing in Madarassy to prevent an ET at stage one relying on less favourable treatment. Paragraph 250 of the ET’s findings referred to the difference in treatment, but, before that, it had referred to the Respondent’s failure to provide any evidence in relation to whether Ms Jarman was reported to the LSA. That was “something more”: a lack of evidence. The Court of Appeal in Madarassy (paragraph 65) had allowed that a Respondent’s explanation could be taken into account at the first stage; conversely, the ET must be able to take into account a lack of evidence or explanation. Further, the ET permissibly took into account less favourable treatment - not necessarily the same as a mere difference in treatment. Whilst the Court of Appeal in Madarassy had rejected the submission that a difference in status and a difference in treatment was sufficient (paragraphs 51 to 54), it had approved the Judgment of Elias J in Laing, in which the EAT had allowed that showing less favourable treatment (not simply a difference in treatment) was sufficient to discharge the burden of proof. That must be right: if there is less favourable treatment, the Claimant is halfway to making good her section 13 complaint; why should the burden of proof not shift?
56. At stage two, the question was whether what was required was an explanation of the difference in treatment or an explanation of the subjective reasoning in the Claimant’s case. If applying a two-stage test, it was the former. It was only if the ET adopted the Shamoon approach - going straight to the “reason why” - that it had to assess the subjective reason for the Claimant’s treatment. The ET here permissibly adopted the two-stage approach, so the question was: what was the explanation for the less favourable treatment? The Respondent further criticised the ET for failing to take into account differences in the two cases, but had itself failed to put that case; its only explanation - albeit related to the NMC reference - was that Ms Jarman was due to retire. The ET was entitled to infer this was also the explanation for Ms Jarman not being referred to the LSA.
(2) The Post-Resignation Complaints
57. The Respondent now complained of the ET’s reliance on Ms Jarman as an evidential comparator, but it had not objected below: this was a new point and should not be permitted.
58. As for the suggestion that the ET determined an unpleaded issue - whether the Claimant was treated with sympathy and respect - there was a difference between an issue and a matter determined on the way to deciding an issue: the first requires prior notice, the second does not. The question of consideration and sympathy was a general evidential tool used to assist the ET in determining the issues; this was not a Chapman v Simon [1994] IRLR 124 CA point.
59. As for the ET’s reliance on Ahsan (a well known leading House of Lords authority) and the fair hearing/natural justice point, the Respondent could have made submissions as to the appropriateness of any comparators but did not do so. This was a sufficiently well established point to assume that the parties would be alive to it.
60. In any event, the ET was not required to slavishly stick to the list of issues (Parekh v London Borough of Brent [2012] EWCA Civ 1630 per Mummery LJ at paragraph 31). It did not have to explore with the parties whether (if not a statutory comparator) Ms Jarman was an evidential comparator; it had been obliged to consider this when constructing a hypothetical comparison.
61. On the burden of proof, there were two alternative interpretations of the ET’s approach. Whichever was correct, it did not err. First, there were sufficient similarities for Ms Jarman to be an evidential comparator: both had been found guilty of gross misconduct and given final written warnings; both were due to retire; the ET had in mind the material differences, but equally had in mind - as it was entitled to do - the material similarities. Having found less favourable treatment on the basis of a hypothetical comparator, the question arose as to the adequacy of the Respondent’s explanation (paragraph 269); which the ET rejected (paragraph 277). Second, alternatively, the ET had not just relied on a difference in treatment but also on unreasonable treatment - the determined pursuit of procedures despite the Claimant being off sick; that was a relevant “something more” (Ladele, paragraph 40.4).
62. On the demotion issue, the Respondent had sought to suggest this was in response to the NMC interim order but that did not require a demotion; previously, the Respondent had put the Claimant on administrative duties, which the NMC’s order permitted.
Harassment
63. The ET’s reasoning was sufficient to demonstrate it had applied an objective test, hence its use of the word “reasonable”. Given its earlier findings (specifically paragraphs 269 to 274), it was clear why the ET found, objectively speaking, the conduct had the relevant effect.
Unauthorised Deductions
64. Neither the contract nor the procedure relied on provided for the deduction in question.
The Respondent in Reply
65. On Parekh, in fact that case made clear the general rule that the list of issues will need to be followed; there was no material change in circumstances such as to justify a departure from the list of issues (per HHJ Hand QC in Serco Ltd v Wells UKEAT/0330/15).
The Cross-Appeal
The Claimant’s Case
66. The cross-appeal related to the rejection of the Claimant’s claim that she was dismissed by the Respondent (explained shortly at paragraph 242). The Claimant complains the ET failed to make adequate findings on the breaches relied on by her. Specifically, it made no finding as to whether the reference to the LSA - an act of direct race discrimination - amounted to a breach of the implied obligation to maintain trust and confidence (and even if the Respondent succeeded on its appeal, that would leave a question as to the Claimant’s perspective of its treatment of her as compared to Ms Jarman). Similarly, the ET failed to adequately engage with the failure to provide the Claimant with the opportunity to undergo a 450-hour practice programme - as the LSA recommended - and her complaint regarding redeployment, or to take into account the punitive aspect of the Respondent’s conduct in its dealings with the Claimant prior to her resignation, and consider whether these might amount to a last straw.
67. Accepting, even if she established the ET erred in not finding fundamental breaches of contract, the Claimant had to deal with its finding that she did not resign in response; but on that, the ET should have adopted the approach indicated in cases such as Lochuack: the breach was not required to be the predominant, effective or main reason provided acceptance of a repudiatory breach was at least part of the Claimant’s reason for leaving.
The Respondent’s Case
68. The last straw argument had been raised in the list of issues (paragraph 11) and was firmly in the ET’s mind. The ET correctly directed itself as to the relevant law and reached an entirely permissible conclusion, notably that there was a mismatch between the Claimant’s case and the facts as the ET found them. That had to include the pleaded case on last straw. On the one pre-resignation matter found to amount to an act of direct race discrimination - the reference to the LSA - the ET plainly had that in mind but had not considered it amounted to a relevant breach of contract in terms of the Claimant’s reason for resigning. Otherwise, the ET’s rejection of each of the complaints of race discrimination constituted findings of fact not open to challenge on appeal. In any event, it had made a clear finding as to the Claimant’s reason for resigning, which was other than the matters relied on by her as breaches of contract: the reason for the resignation had to be a matter for the ET, which had reached a permissible conclusion given the evidence, in particular the Claimant’s letter of resignation.
The Claimant in Reply
69. It was insufficient to state the ET had followed the list of issues when that incorporated an erroneous assumption as to the legal approach to the reason for leaving and as to the factual basis of the ‘last straw’ case.
Discussion and Conclusions
Direct Race Discrimination and Unauthorised Deduction of Wages
(1) The Referral of the Claimant to the LSA
70. I start, as the parties did, with the appeal against the finding of direct race discrimination in respect of the referral to the LSA. In respect of all other matters pre-dating the Claimant’s letter of resignation, the ET rejected the Claimant’s case that these were acts of race discrimination. Specifically, it accepted the Respondent followed normal procedure in respect of the Midwives’ and Doctors’ complaints and had good, non-discriminatory reasons for its treatment of the Claimant in respect of her supervised practice programme and the issue of redeployment given the problems arising from the Claimant’s health issues.
71. The referral of the Claimant to the LSA arose from the CTG incident and the fact that she had been suspended after the initial investigation. There was no complaint before the ET about the Respondent’s initial response to that incident, the Claimant’s suspension or as to the disciplinary penalty; the ET was thus proceeding on the basis that it was accepted that those did not amount to racially discriminatory acts.
72. Ms Fosbrook’s evidence to the ET was that she considered that her notification of the Claimant’s suspension to the LSA was in accordance with NMC rules. Given what was not the subject of complaint (see above), unsurprisingly it was not suggested that the referral was, of itself, open to question; what made it so in this case was the comparison with the case of Ms Jarman. The ET clearly understood Ms Jarman to be the comparator relied on by the Claimant on this complaint, apparently treating her as a statutory comparator; certainly, its approach to Ms Jarman’s case on the LSA reference is to be contrasted in this respect with its identification of her as the evidential comparator in respect of the post-resignation complaints.
73. Using the list of issues, the identification of Ms Jarman as a statutory (or, indeed, evidential) comparator for the purposes of the LSA referral issue is hardly straightforward; it can be done but not readily. Drawing up of a list of issues in a case of this nature can be a complex matter, but it is unfortunate - I put it neutrally - that such a crucial comparison was not more clearly identified. That said, I allow that it cannot be said that it is impossible to draw that conclusion, and I would not allow the appeal on that basis.
74. Accepting, therefore, that Ms Jarman was identified as a relevant comparator before the ET, the question arises whether she was apt to be treated as such. The Respondent says that a preliminary question arises as to whether the ET was even right to proceed on the basis that there was any difference of treatment as between the Claimant and Ms Jarman in terms of any reference to the LSA. Certainly, whilst it had been accepted that Ms Jarman had not been referred to the NMC, the evidence was more ambivalent in respect of any reference to the LSA. This is a point that concerns me. I see Mr Dutton’s objection that if there was no clear evidence on this point then that might be the Respondent’s fault and the ET should not be criticised. I do, however, think that an uncertain evidential foundation is troubling when it might result in an ET proceeding on a potentially false assumption as to the facts.
75. Parking that concern for the moment, I turn to the question whether - assuming a difference in treatment in the relevant respect - the Claimant’s circumstances and those of Ms Jarman were otherwise subject to no material differences. The only matter identified by the ET was the tragic difference in the consequence of Ms Jarman’s misconduct as compared to the Claimant’s, but that fails to have regard to the other differences, not least the fact that one took place in 2008 involving the relevant manager at that time and the other took place in 2012 and involved a different manager. Given that in most cases it will be the mental processes of the relevant decision maker that must be scrutinised when looking at the explanation for the treatment (paragraph 40(1) Ladele), I am uncertain why the ET did not consider the different identities of the managers potentially material. Allowing that this might be a less significant question if an employer (through each decision maker) is purporting to act in accordance with a single policy or rule, the ET here did not consider Ms Fosbrook’s evidence as to her reliance on the NMC rules and standards: it did not look to see if the same standards applied in 2008 or whether they might be open to different interpretations by different managers.
76. Mr Dutton contends that the ET’s failure to descend into this detail might in part have arisen from the Respondent’s failure to underline these points. The Respondent, in turn, objects that was only because it did not appreciate this was the comparison on which it had to focus. Even, however, if the comparison with Ms Jarman was appropriate and served to shift the burden of proof - and, as Mr Scott accepted in submissions, an extreme difference in treatment, as the ET considered was demonstrated here, could provide the (per Madarassy) “something more” - the ET did not then engage with the Respondent’s explanation.
77. Mr Dutton says that - this being a case of an actual rather than a hypothetical comparator - the ET was entitled to look to the Respondent to provide an explanation for the difference in treatment not simply as to the treatment of the Claimant herself. Whilst I can see that what is required will depend upon the particular circumstances of the case, here the import of the Respondent’s evidence was that it could not say with any certainty what had happened in Ms Jarman’s case in respect of any reference to the LSA (it is common ground that the Respondent was not suggesting that there had been no reference to the LSA because of her impending retirement; that was counsel’s speculative response in respect of any reference to the NMC), but it could - courtesy of Ms Fosbrook - explain why it had taken the action it had in the Claimant’s case. I am not saying that the ET was bound to accept that evidence, but I do consider it was required to demonstrate engagement with it. That is consistent with the guideline authorities and with the ultimate requirement to consider the “reason why”. I thus consider the ET’s decision in this respect has to be regarded as unsafe.
78. Having reached that conclusion, I return to the point I had previously ‘parked’ and observe that proper consideration of the complaint regarding the LSA reference should have explained more clearly why the ET assumed no reference had been made in Ms Jarman’s case.
(2) The Post-Resignation Acts of Race Discrimination
79. I turn next to the ET’s finding of direct race discrimination on the post-resignation issues. So doing, I reject the Respondent’s preliminary objections that (1) the ET adopted an additional issue (whether the Claimant was treated with sympathy and consideration in the run up to her retirement), and (2) it had been denied the opportunity to address the ET on Ahsan. On (1), I agree with Mr Dutton: this was simply a means adopted by which the ET tested the evidence; it was not the identification of a new issue. As to (2), the use of actual individuals in the construction of the hypothetical comparator is sufficiently well known for it to have been unnecessary for the ET to specifically refer the parties to Ahsan. On this second point, it seems to me that the real complaint is that the Respondent had not appreciated that Ms Jarman’s case was to take on such a focus (either as a statutory or evidential comparator) but, as already indicated, I do not think the point was impossible to identify from the list of issues.
80. I then turn to the matters found to constitute acts of race discrimination: the demotion of the Claimant and the attempt to pursue the disciplinary and sickness review processes at the time the Claimant was signed off sick and was, in any event, about to retire. As the demotion issue is one that arises separately in respect of the unauthorised deduction of wages claim, it is appropriate at this stage to take a detour to deal with the appeal on that matter.
81. The ET found the wage reduction as a result of the demotion was without contractual basis and thus amounted to an unauthorised deduction. The challenge to that finding is put on the basis that the registration of staff policy was incorporated into the employment contract and paragraph 5.4 of that policy entitled the Respondent to act, the Claimant’s registration having in substance temporarily lapsed as a result of the NMC’s interim conditions of the practice order. The difficulty for the Respondent is that its submission depends upon the insertion of the term “in substance” into the policy but its wording is limited to lapsed registrations, not those that are lapsed “in substance”. That being the challenge that has not been made out; the demotion was made absent any contractual right and gave rise to an unauthorised deduction of wages.
82. Bearing that in mind, I return to the ET’s finding of direct race discrimination on the post-resignation complaints. It was obviously concerned by the apparent discrepancy in treatment between the Claimant and Ms Jarman in the months leading up to their respective retirements. As the Respondent observes, however, their circumstances were not entirely the same. Not only had the Claimant been the subject of a final written warning in respect of a previous conduct issue raising matters of concern about her professional conduct - as had Ms Jarman - but she was also the subject of outstanding disciplinary complaints and proceedings (the invitation to the disciplinary hearing having gone out prior to her letter of resignation) and also of a continuing process under the sickness review procedure. There was, further, the question as to how the Respondent was to respond to the Claimant’s continuing employment given the NMC interim order, something that had not happened in Ms Jarman’s case. Although, as an evidential comparator, Ms Jarman’s case did not need to be the same as that of the Claimant, the circumstances of the hypothetical comparator - even if constructed using Ms Jarman - needed to have no material differences and I consider the ET lost sight of that fact.
83. There were plainly material differences between Ms Jarman’s case and that of the Claimant. Those differences do not necessarily provide an adequate non-discriminatory reason for why the Claimant was treated as she was (which included a demotion in breach of contract; see above), but if the ET was proceeding to test the case against a hypothetical comparator, it needed to ensure it was properly comparing like with like and to do so in respect of each of the issues under consideration, not simply lumping them together generally as examples of how an employee was treated in the months prior to retirement. Again, I conclude that the ET’s conclusions on these matters are rendered unsafe and cannot stand.
Harassment
84. Given that the ET’s conclusion on the harassment claim was founded upon its findings of direct race discrimination, it is inevitable that I must also allow the appeal against that decision. Even if I had not allowed the appeal on the race discrimination findings, however, I would have been troubled by the ET’s approach to the question of the reasonableness of the effect of the unwanted conduct in this regard. It needed to have regard not only to the Claimant’s perspective but to the wider circumstances - the NMC interim ruling for example - and determine what it was that was having the relevant effect, and, if it was the unwanted conduct, the extent to which - in those circumstances - it was reasonable for it to do so.
The Cross-Appeal
85. Having reached those conclusions on the appeal, I turn to the cross-appeal. I had previously permitted this to proceed to a Full Hearing because I was concerned the ET had not fully addressed the question of whether its finding of unlawful race discrimination in respect of the referral to the LSA had given rise to a relevant breach of contract and whether it had made findings on all of the matters relied on by the Claimant as potential breaches of contract.
86. As the Respondent observed, and as Mr Dutton (who did not draft the grounds of cross-appeal) acknowledged, the difficulty for the Claimant is that the ET concluded that she did not resign in response to any breach of contract but for other reasons (in respect of which no finding of race discrimination had been made; see paragraph 242). There was no cross-appeal against that crucial finding and so Mr Dutton’s arguments as to the ET’s approach to the determination of the reason for resigning do not properly arise. I see his point that there might have been an argument that the Claimant’s decision to take retirement on favourable terms might have also taken into account the various outstanding issues she faced at work (some of which she complained were breaches of the implied obligation to maintain trust and confidence), but that is not how the case was put below (when reliance was placed on matters that the ET did not find to amount to discrimination or breaches of contract, and when the demotion was said to be the last straw, notwithstanding that it post-dated the resignation) and it was not the basis of the cross-appeal. I have, therefore, to agree with the Respondent: the ET was alive to the issues relied on by the Claimant but rejected those as constituting her reason for resignation. That was a permissible determination and I am bound to dismiss the cross-appeal.
Disposal
87. Given my Judgment, it is inevitable this matter must return to an ET for rehearing of the claims of direct race discrimination and harassment. Mr Dutton urges this should be - to the extent it remains possible, the Employment Judge having since retired - to the same ET. He observes that I have not criticised the ET’s approach on a wholesale basis and submits there is no reason to think this ET could not approach the re-hearing on a wholly professional basis. For the Respondent, Mr Scott noted that when the Employment Judge had earlier responded to the EAT, he had observed that the bundles and all notes save his own had been destroyed upon his retirement, which had been some months previously; there was a question as to whether anything could be gained by sending the matter back to the same ET. There would, further, be the possible perception the ET was being given a second bite of the cherry. Having regard to the factors in Sinclair Roche & Temperley v Heard [2004] IRLR 763, it was better to remit to a freshly constituted ET.
88. I agree that this is not one of those cases where there has been a wholesale criticism of the ET; in many respects, its findings have remained unchallenged and not subject to any criticism. Overall the Reasons provided demonstrate a careful and balanced consideration of the evidence and the issues before the ET. That said, I am concerned as to the practicalities in seeking to maintain the same ET given the retirement of the Employment Judge. Even if he were persuaded to come back to hear this case, inevitably this would be a greater undertaking than would normally be required, particularly given that it seems the members’ notes and bundles have been destroyed. Applying Heard, and taking those factors into account along with the perception - I put it no higher than that - that this might seem to be providing the ET a second bite of the cherry, I consider I should remit to a differently constituted ET.
Costs
89. Having been largely successful on its appeal, the Respondent sought recovery of the sums incurred by way of fees, pursuant to Rule 34A(2A) of the Employment Appeal Tribunal Rules 1993 (as amended); the fees in question being £1,600. Mr Dutton objects that the appeal was only partly successful; moreover, the Claimant has no money and is substantially in debt. Responding on means, Mr Scott countered that the Claimant will be recovering money in respect of the unauthorised deductions claim and thus have the means to meet the award.
90. Following the introduction of the fees regime, whilst costs do not inevitably follow the event, Rule 34A(2A) signals that - where an Appellant has been wholly or partly successful - there might be a reasonable expectation they will be entitled to recover the whole or part of the fees they had to incur. That said, the EAT has a wide discretion as to whether to make such an award in any particular case. Here, the Respondent has been largely, but not wholly, successful in its appeal and I consider it appropriate to make an award. Equally I consider it just to take into account that it pursued points that did not succeed. I also have regard to the fact that the Claimant is said to be of limited means, even allowing for the award that will come her way following my decision on the unauthorised deductions claim. In the circumstances, I order that the Claimant pay £1,000 towards the Respondent’s costs incurred by way of fees, that sum to be set off against any monies due to her in respect of the unauthorised deductions claim.