United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0197/15/DA

 

 

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

 

 

                                                                                                             At the Tribunal

                                                                                                             On 27 May 2016

 

 

 

Before

HER HONOUR JUDGE EADY QC

(SITTING ALONE)

 

 

 

(1) MR B LADIENDE                                                                                           APPELLANTS

(2) MR C BICAR

(3) MR O OGUNBAYO

(4) MS A ADEKO

 

 

ROYAL MAIL GROUP LTD                                                                              RESPONDENT

 

 

Transcript of Proceedings

 

JUDGMENT

 

 

 

 

 

 

 

 

 

APPEARANCES

 

 

 

 

 

For the Appellants	MISS NAOMI LING (of Counsel) Instructed by: Rahmann Lowe Solicitors 29th Floor One Canada Square Canary Wharf London E14 5DY
For the Respondent	MR STEVE PEACOCK (Solicitor) Weightmans LLP Solicitors 100 Old Hall Street Liverpool L3 9QJ

 

 

SUMMARY

RACE DISCRIMINATION - Direct

VICTIMISATION DISCRIMNIATION - Other forms of victimisation

 

Race Discrimination - direct discrimination - victimisation

The Claimants - all long-serving, black employees of the Respondent - complained of less favourable treatment as compared to a named (non-black) comparator/a hypothetical comparator in terms of their treatment as Temporarily Promoted Managers and had also complained of direct race discrimination and victimisation in respect of how the Respondent had responded to their grievance.

 

On the Claimants’ appeal against the ET’s rejection of their complaints:

Held: allowing the appeal in part

The Claimants complained that they had not been considered for/informed of vacant higher grade roles whereas their comparator had been slotted into such a role.  The Respondent’s general explanation (accepted by the ET) - that there were no such vacancies at the Claimants’ workplace - was put into question by the treatment of the comparator.  That said, it was apparent from the ET’s findings that the more favourable treatment of the comparator arose from a genuine mistake on the part of the Respondent (both in respect of the position of the comparator and also as to the position of the Claimants) and was in no way because of race.  Although that left a question as to why this had not been rectified once the Respondent had learned of the error, the continuing position was not an issue before the ET and fell to be considered on the subsequent ET claims brought by the Claimants.

 

The Claimants had further complained that they had not been paid at the appropriate level for some ten years but that was again answered by the ET’s finding that their move to Temporary Promoted managers in 2004 had erroneously not been communicated to the Respondent’s payroll: the ET had gone to the “reason why” question and had permissibly found that the answer was also unrelated to race.

 

As for the final complaint - of direct race discrimination and victimisation in respect of the handling of the Claimants’ grievance - the ET expressed a number of concerns in this respect but then failed to have regard to those matters when determining the issue of discrimination.  There was a troubling confusion in the ET’s reasoning, which suggested an erroneous application of the burden of proof.  Moreover, having found an absence of explanation provided by the Respondent, the ET erroneously considered that it was its role to provide the missing explanation.  The errors in these respects also tainted the ET’s decision on victimisation.  The appeal in respect of the grievance complaints (both of direct race discrimination and victimisation) would thus be allowed.

 

HER HONOUR JUDGE EADY QC

 

Introduction

1.                  I refer to the parties as the Claimants and the Respondent as below (save where it is necessary to distinguish between the Claimants, in which case I do so by name).  This is the Full Hearing of the Claimants’ appeal against a Judgment of the Employment Tribunal sitting at London (Central) (Employment Judge Goodman sitting with Mrs Bradfield and Mr Carroll over four days in February 2015, with a further two days in Chambers; “the ET”), sent to the parties on 18 March 2015.  The parties were represented below but not by the advocates who now appear before me.  By its Judgment the ET (relevantly) dismissed the Claimants’ claims of direct race discrimination and of victimisation.  The Claimants appeal and after an Appellant-only Preliminary Hearing before HHJ Shanks were permitted to do so on amended grounds.

 

The Background Facts

2.                  The case concerns how the Respondent treats three types of persons working as managers.  First, there is the Operational Postal Grade (“OPG”) who has been assessed as suitable to act up or substitute when cover is needed for a manager’s job when he or she will be called an Acting or Deputy Manager.  Second there is a Temporarily Promoted Acting Manager (“TP”), where the substitution into a manager’s job lasts for a longer period.  Third, there is the Substantive Manager, graded ML4.

 

3.                  The Claimants are all long-serving employees of the Respondent, each is black and of Nigerian origin, save for Mr Bicar who is of Caribbean origin.  Each Claimant had worked as an OPG at the Respondent’s Mount Pleasant site.  In September 2004, each was given TP as a result of a widespread exercise to regularise the status of Acting Managers, but did not receive the formal letter of contract variation that would normally follow.  They continued as TPs until 2014 but their contracts were not formally changed to reflect that nor were they paid at the Substantive Manager rate as would usually be the case.

 

4.                  The Claimants’ named comparator in the ET proceedings was a Ms King.  She was made a TP in November 2011 when she was working at the Respondent’s South London Sorting Office on a contract with the Department for Work & Pensions (“the DWP”).  In January 2012 she moved to Mount Pleasant and in July 2012 was, in error, treated as a Substantive ML4 in the Respondent’s records. 

 

5.                  In January 2014, the DWP contract came to an end making Ms King’s role surplus.  Considering her to be a Substantive ML4, the Respondent slotted her into another manager post, which is when she started to work alongside the Claimants.  She was continuing in that post as at the date of the ET hearing.

 

6.                  On 3 March 2014, the Claimants were told that, due to reorganisation, all Acting Manager posts were at risk and TPs might revert to OPG at the end of April.  On 16 April 2014, the Claimants raised a grievance, complaining of the failure to pay them appropriately since 2004, of the failure to appoint them as Substantive Managers, and of the threat that they might revert to OPG status whereas Ms King had been promoted to a Substantive Manager post without going through a competitive selection process.  Further detail of their grievance was provided by their solicitors in early May, including the complaint that the Respondent’s “blatant use of subjective criteria” constituted direct race and sex discrimination.  The Claimants’ grievance was the protected act for the purpose of the victimisation claims before the ET.

 

7.                  One of the Respondent’s managers, Mr Wilkinson, was appointed to investigate the grievance and met with each Claimant in May 2014.  In those interviews, Mr Wilkinson suggested that, because Ms King was also of a black minority ethnic group, race did not arise as an issue (Ms King identified herself as “of Filipino origin”). 

 

8.                  Meanwhile, the Claimants were considering lodging ET claims and an Acas conciliation process ran between the end of May and the end of June 2014.  The claims were lodged in July.  The Claimants were only told the outcome of their grievance, however, in letters received on 10 and 11 September 2014.  Those letters stated that Ms King was a Substantive OPG and had been given long term TP to ML4 status in 2011 but was not a Substantive Manager.  Mr Wilkinson did not address the Claimants’ issues regarding whether they were OPG substituting or TP Managers, or their complaint of underpayment.  Between May and September 2014 the Claimants reverted to OPG; Ms King did not.

 

9.                  The Claimants appealed the grievance decision and the Respondent’s Plant Manager, Mr Gyde, was appointed to deal with the appeals, meeting with the Claimants on 23 and 24 October, when he explained that Ms King had been believed to be a Substantive Manager but was now known not to be.  As for why she was continuing to act up, that was down to the Shift Manager (although Mr Wilkinson had said that was for the Plant Manager to decide).  On 19 and 20 January 2015, the Claimants learned the outcome of their grievance appeals.  In the cases of those who had been able to show the TP letters they had received in 2004 - Mr Ladiende and Mr Ogunbayo - it was accepted they had been underpaid in their TP roles.  That was not accepted in the cases of Mr Bicar and Ms Adeko because they had apparently not been able to produce TP letters in the same way.  Their discrimination complaints were rejected: Ms King had been slotted into the vacant manager role because it was erroneously believed she was a Substantive ML4.  Her position was, in any event, different to that of the Claimants: she had been displaced because she was surplus whereas the Claimants were not surplus.

 

The ET Proceedings Decision and Reasoning

10.              The Claimants presented their ET claims on 25 July 2014.  Before the ET the following complaints (relevant to this appeal) were identified as acts of direct discrimination: (1) failing to inform the Claimants of the vacant position of Substantive Manager/Acting Deputy Manager or any other role on higher grade and pay; (2) failing to advertise the role of Substantive Manager and/or Deputy Acting Manager; (3) failing to promote the Claimants when an ML4 post became vacant or provide opportunities for such promotion; (4) failing to promote the Claimants and/or pay wages in accordance with the Respondent’s reward policy; (5) failing to pay the Claimants’ wages at the appropriate managerial rate despite their assignment as TP in 2004; and (6) failing to properly investigate and/or deal with the Claimants’ grievance (something also relied on as an act of victimisation).

 

11.              The ET grouped the first three complaints together.  It considered it relevant that there was a background of constant change and reduction in headcount in London going back to 2002, when the Respondent had first introduced a no-redundancy policy, as there were always displaced managers to place; there was no advertisement of ML4 posts at Mount Pleasant.  Jobs elsewhere were advertised, indeed, Mr Ladiende had applied for them.  There was no less favourable treatment to the Claimants.

 

12.              On the failure to properly treat as TP and then, thus, properly pay the Claimants - complaints (4) and (5) before me - the ET noted that another black Nigerian TP had received a contract variation letter, the thing that should have triggered the sending of information to payroll.  That suggested the reason for the failure to properly record the Claimants’ TP and pay them correctly was due to administrative mix-up rather than race.  As for the failure to accept that all four Claimants had been wrongly paid, the ET noted that Mr Bicar appeared to have received a TP letter, it was in the hearing bundle, but had been treated as not having received one, possibly because he had not produced it at the grievance appeal, but he was not present at the ET to answer questions.  More generally, whilst it acknowledged that the Claimants had substituted for a very long time - so it was arguable that the Respondent should have recognised that and formalised their status, even if the original letters had disappeared - given the large numbers of black and minority ethnic managers at Mount Pleasant, and the lack of evidence as to how the reward policy had applied to Substituting Managers of any ethnicity after 2004, the ET found it hard to discern a pattern to suggest race was the reason.  It concluded that it was more likely that the constant sequence of closures and head count reduction put any review far down the agenda and noted that neither the Claimants nor their union had complained about the failure to make any acting up appointments substantive.

 

13.              Turning to the complaints about the grievance - complaint (6) and the victimisation complaint - the ET acknowledged there were a number of concerns as to how it was handled, including the delay and Mr Wilkinson’s failure to address points relating to the race discrimination complaint (which he appeared not to understand or deliberately chose not to) and failure to appreciate there was more to race and racial group than simply the categorisation of black and minority ethnic.  All that said, the ET found it difficult to say this was less favourable treatment because of race; whilst Mr Wilkinson’s approach to the issue of race might be evidential material from which an adverse inference could be drawn, there were explanations other than race for the failure to address all the points, not least because Mr Wilkinson might have focused on other parts of the lengthy grievance, and because the Claimants had refused to let him see the full content of the letters they had received in 2004. 

 

14.              Considering a hypothetical comparator, had the Claimants been white and made the same complaint about Ms King’s promotion and the failure to pay them properly for ten years, the ET concluded Mr Wilkinson would similarly have ignored these issues when responding to the grievance; it was a lack of competence or loss of focus.  There was no other evidence to suggest he favoured white or Asian people over black staff.  As for the delay, the only explanation the ET could see was because the Claimants had presented an ET claim but it considered white people in the same circumstances may have been treated in the same way.  There was more inexplicable delay in the handling of the grievance appeal but the Respondent’s procedure was less prescriptive at that stage.  Although unclear why this took two and a half months - albeit Christmas fell within that period - the ET considered there was reasonable explanation sufficient to negate any presumption that delay was because of race. 

 

15.              As for Ms King’s promotion, after realising slotting her into an ML4 position had been on the erroneous assumption she had been substantively promoted, there was no re-examination of the position.  The failure to address that anomaly was unexplained but the ET considered:

“103. … to our mind, it is probably because, once the decision was made - for non-discriminatory reasons - the Respondent is reluctant to change the status quo, not because of the difference in race. …”

 

16.              The ET then returned to the victimisation claim put on the basis that Mr Wilkinson’s failure to address the pay complaint was because the Claimants made allegations of race discrimination.  Mr Wilkinson had investigated but had been hampered by not being allowed to see the 2004 letter, such that he overlooked the pay issue.  Whilst he missed the fact that Ms King was mistakenly thought to be substantive, he did not have much evidence that the Claimants were more than OPGs and thought he had found the reason for the difference in treatment.  As for his approach to the race issue he was wrong, but both Mr Bicar and Ms Adeko had told him that the issue for them was not about race or sex but unfairness and favouritism.  It could not be said there was no reason for his approach.

 

17.              At the appeal stage the delay was explicable to the extent it related to the complexity of calculations.  As to why Ms King remained in post, that was inexplicable, but it was not because of the Claimants’ allegations and their return to OPG status was not because they had presented a grievance but because all TPs were at risk.

 

The Appeal and  the Parties’ Submissions

The Claimants’ Case

18.              The grounds of appeal are referenced to the complaints before the ET, as identified at paragraph 10 above.  In respect of the direct discrimination claim and on the first three complaints, the Claimants contend: (1) there was inadequate reasoning as to why they had not succeeded on complaints (1) and (2); (2) the ET erred in law in failing to consider whether they had been treated less favourably than their comparator; (3) in assessing the Respondent’s explanation the ET erred in law (a) in its treatment of the fact that the Claimants’ comparator was still in post at the time and (b) in failing to give any weight to the inconsistent explanations for whose decision it was to appoint or move her out of her substantive role.  At the EAT Preliminary Hearing, part of paragraph 5 - concerned with the first three complaints - was missing from the ET Reasons.  That was since made good but still demonstrated no determination of the second complaint and no explanation why roles were not advertised.  The ET failed to address the difference in treatment of the Claimants as compared to Ms King and to consider this in the light of her continuation in the ML4 role after the error had come to light.  The best explanation the Respondent could give was inconsistent as between the evidence of Mr Wilkinson and Mr Gyde, an inconsistency that could itself give rise to an inference of discrimination (Veolia Environmental Services UK v Gumbs UKEAT/0487/12/BA).  The ET’s subsequent reflection that the “Respondent is reluctant to change the status quo” was far from the cogent evidence required to discharge the burden of proof.

 

19.              Complaints (4) and (5) concerned with the failure to pay the Claimants correctly as TPs.  The ET had (1) perversely discounted the fact that Mr Bicar had received a letter entitling him to TP on the basis that he had not been tendered as a witness when he had been available for cross-examination if necessary (albeit that was not a stand-alone ground of appeal); and (2) in determining whether the burden of proof transferred, failed to take into account that the Respondent did not correct the error in respect of Ms King’s treatment when drawn to its attention.  The Respondent’s pleaded explanation for the failure to pay the Claimants in accordance with their TP status was because they had not, in fact, been so promoted (see paragraph 12 of the ET3), but at the appeal stage it was stated:

“It has not been possible to ascertain why this is the case but the most likely explanation is that his temporary promotion and consequent pay was entered as substitution by mistake. …”

 

20.              The ET had approached these issues in the wrong way, setting out the explanation and concluding the treatment was not because of race before asking whether the burden of proof had shifted.  Had it considered first whether Claimants had established sufficient to shift the burden, it would have taken into account the continued failure on the Respondent’s part to correct the error and would have considered what inference it should draw from this and from Mr Wilkinson’s failure to address the pay point when dealing with the grievance.  If the ET had, thus, approached its task correctly it would then properly have considered the question of explanation on the basis that the Respondent bore the burden of proof.  It would not have required Mr Bicar to explain why he had a TP letter and why this had not been shown.

 

21.              On issue (6) and the victimisation complaint, the ET appeared to have found Mr Ogunbayo had suffered less favourable treatment because of race (paragraph 100) but still went on to dismiss the claims.  Alternatively, its findings were not Meek compliant.  It further erred in failing to consider whether the burden of proof had transferred based on Mr Wilkinson’s attitude to race demonstrated during the grievance process and in concluding that in the absence of an explanation for conduct it was for the ET to establish that explanation.  Here (paragraphs 96 and 98) the ET indulged in conjecture and surmise in reaching a conclusion as to the reason why, both in relation to Mr Wilkinson’s failure to deal with the pay aspect of the grievance and in respect of the delay in dealing with the grievance appeal.  It also erred in its construction of a hypothetical comparator and had put a burden on the Claimants on the basis of a lack of positive evidence that Mr Wilkinson treated white people more favourably than black people.

 

22.              On the victimisation claim the Claimants’ appeal was put on two grounds: (1) the ET erred in apparently finding the Claimants did not prove the treatment alleged by Mr Wilkinson in investigating their grievance and (2) failed to apply section 136 of the Equality Act 2010 in concluding no detriment occurred because they had complained of discrimination.  Having set out a litany of failures on Mr Wilkinson’s part (see paragraphs 94 and 95) and having concluded he had failed to answer the complaint about TP and pay, the ET then concluded he had investigated.  It had failed to assess the question of detriment from the perspective of the Claimants (St Helens MBC v Derbyshire [2007] ICR 841).  Either the ET misunderstood the issue and believed the complaint was a failure to investigate at all rather than a failure to investigate adequately, or it concluded that Mr Wilkinson had investigated adequately which would have been perverse given the findings on the grievance investigation.  Otherwise it had again failed to properly apply the burden of proof (see above). 

 

The Respondent’s Case

23.              The ET directed itself impeccably on the law and properly applied the law to the facts; it correctly applied the reverse burden of proof provisions and permissibly concluded the alleged treatment was not because of race or because of the protected act.  The burden of proof need not be applied in an overly mechanistic way (Hewage v Grampian Health Board [2010] ICR 1054 SC) and the ET was not necessarily required to apply a two-stage approach.

 

24.              On the first three complaints the ET concluded the reason why Ms King was appointed to the ML4 role at Mount Pleasant rather than that role being notified or offered to the Claimants was not because of race.  It accepted the Respondent’s explanation: in the context of constant and substantial headcount reductions, there were always surplus Substantive Managers to place.  As for the comparison with Ms King, and as for her remaining in post, that was the subject of a separate claim, yet to be heard.  Reading the reasoning as a whole, it was apparent the ET found a clear explanation for her treatment: she was genuinely, albeit erroneously, treated as a Substantive ML4 appointment.  Although the Claimants relied on the Respondent’s failure to correct the error: (1) that was not before the ET as an issue but was the subject of a second claim; (2) when the Respondent first became aware of the error in April 2014, Ms King had erroneously been treated as a Substantive Manager for some time (including prior to her January 2014 move); (3) even then the Respondent - reasonably, as the ET found - did not understand that the Claimants were TPs, it continued to consider they were OPGs.  The Respondent’s inaction did not undermine its explanation for any continued difference in treatment: until the end of the grievance appeal it considered the Claimants were substantive OPGs temporarily acting as ML4 managers; they did not fall into the category of managers substantively promoted to a managerial grade.  It was not until it investigated the grievance in 2014, that the Respondent became aware of the error in relation to Ms King, and not until the grievance appeal that it became aware of the error in relation to the Claimants. 

 

25.              As for complaints (4) and (5), the explanation as to why the Respondent did not formally promote the Claimants to TP or pay them as such, was again found not to be because of race; the ET was entitled to accept that the Respondent erroneously believed the Claimants had not been TP but had remained Substantive OPGs

 

26.              Turning to complaint (6) and the victimisation complaint - both relating to the grievance investigation - the ET recognised there was a substantial delay and a number of matters were not dealt with, but also found the Claimants’ concealment of part of a letter relevant to their promotion to TP and refusal to give a copy to Mr Wilkinson might have led to him to question the integrity of that evidence and explained why he did not appreciate the Claimants and Ms King were on the same grade.  It concluded the same complaint made by a hypothetical white comparator would have been dealt with in the same way.  It referred to the factors that would account for the delay in the grievance appeal and concluded there was a reasonable explanation sufficient to negate any presumption that delay was because of race.  On victimisation the ET found Mr Wilkinson had investigated (paragraph 106); a permissible conclusion. 

 

The Relevant Legal Principles

27.              The claims with which I am concerned are of direct discrimination defined by section 13 of the Equality Act 2010 (“the EqA”) and of victimisation defined by section 27.  The focus of the appeal concerns the approach to the burden of proof, as provided by section 136 EqA:

“(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.”

 

28.              Although guidance as to how to approach the burden of proof has been provided by the appellate courts, all judicial authority agrees the wording of the statute remains the touchstone; that was made clear by the Court of Appeal in Igen Ltd v Wong [2005] ICR 931 (see the judgment of Peter Gibson LJ), in which guidelines were set out in an annex to the judgment with the express caveat that this was not a substitute for the statutory language.  Also see Hewage v Grampian Health Board [2012] ICR 1054 SC, in which Lord Hope (approving Underhill J, as he then was, in Martin v Devonshires Solicitors [2011] ICR 352) observed:

“32. … it is important not to make too much of the role of the burden of proof provisions.  They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination.  But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other. …”

 

29.              That said, the importance of the burden of proof in discrimination cases has been recognised, for example, by Mummery LJ in Madarassy v Nomura International plc [2007] ICR 867 CA, who acknowledged:

“12. … There is probably no other area of the civil law in which the burden of proof plays a larger part than in discrimination cases.  Arguments on the burden of proof surface in almost every case.  The factual content of the cases does not simply involve testing the credibility of witnesses on contested issues of fact.  Most cases turn on the accumulation of multiple findings of primary fact, from which the court or tribunal is invited to draw an inference of a discriminatory explanation of those facts. …”

 

30.              Where a Claimant has shown facts from which an ET could find that there has been unlawful discrimination under the EqA, section 136 operates to shift the burden of proof to the Respondent who is then required to show a reason for the conduct in question that is other than the protected characteristic.  As Mummery LJ explained in Madarassy:

“58. … The burden is on the respondent to prove that he has not committed an act of unlawful discrimination.  He may prove this by an adequate non-discriminatory explanation of the treatment of the complainant.  If he does not, the tribunal must uphold the discrimination claim.”

31.              In determining whether the burden has shifted, the ET is not obliged to adopt a strict two-stage approach.  In some cases it may consider it appropriate to move straight to the Respondent’s explanation, the reason why (see Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 HL).  Where it does so, however, that must be on the assumption that the burden may have shifted to the Respondent, so considering its explanation on that basis (see paragraph 81 of Madarassy); it is that assumption that means there will be no prejudice to the Claimant in moving straight to the second stage of the assessment.

 

Discussion and Conclusions

32.              I follow the course adopted by the parties and consider the grounds of appeal, in the light of the complaints before the ET, as grouped together by Miss Ling. 

 

33.              The first three direct discrimination complaints related to the Claimants contention that they were not considered for, or informed of, vacant Manager, Deputy Manager or other higher grade roles.  That was something that fell to be considered under the Claimants’ complaint of less favourable treatment as compared to Ms King and/or a hypothetical comparator.

 

34.              If looked at in general terms, the ET’s reasoning provides an answer: the Claimants were treated in the same way as everyone else; managerial and other vacancies were not advertised (other than outside Mount Pleasant), because - given the ongoing headcount reduction, coupled with the no-redundancy policy - there were none; there were always displaced managers to place and, thus, no vacancies.  At this general level the ET may not have clearly referenced the burden of proof provisions when stating its conclusions but it did not need to do so.  It could go straight to the reason why; it was obvious.

 

35.              The difficulty is that the Claimants’ complaint was not limited to the general but specifically referred to the case of Ms King, who had been slotted into a managerial vacancy even though she was not, in fact, a Substantive Manager.  As was apparent by the time of the ET hearing, she should have been treated in the same way as the Claimants; her position was the same.  When one considers the Claimants’ complaints in the light of how Ms King was treated, the general explanation would seem to be put into question.  It is - I put it neutrally - unfortunate that the ET did not expressly consider the position of Ms King when addressing these complaints in its reasoning.  That said, as Miss Ling recognised, the ET made findings of fact as to Ms King’s position at an earlier stage in its Judgment and it is right that I have regard to those findings when considering the reasoning on these complaints; the ET is, after all, entitled to expect its Judgment to be read as a whole.  Doing so, it is - as Miss Ling accepted - apparent that it found there was an explanation as to why Ms King had been slotted into a Substantive Manager post in January 2014; it was because she was erroneously believed to be an ML4 (the payroll records showing her to be a substantive rather than temporary Manager) and the Respondent was not aware it was treating her differently.

 

36.              Miss Ling submits, however, that this was not the end of the matter: the Claimants had not limited their comparison to Ms King to the position as at the time of her appointment, but were complaining of the difference in treatment on an ongoing basis.  Ms King had continued in the Substantive Manager position even after the Respondent had learned of its error.  That undermined its explanation and the ET needed to grapple with that.  For the Respondent, Mr Peacock says this is an unfair extension; this was not a point expressly raised in the list of issues, hence the absence of full evidence on the issue. 

 

37.              Whilst initially troubled by the failure to address the extended case put by the Claimants in this regard, ultimately I consider Mr Peacock is correct.  The question before the ET related to why the Claimants had not been informed of, or considered for, vacant higher grade positions such as that into which Ms King was slotted in January 2014.  The answer to that - the general explanation that the ET accepted - was put into question by Ms King’s case, but, as the ET had found, that anomaly arose due to genuine error, an explanation that was other than race.  The point before the ET - why the Claimants had not been offered or considered for such a vacancy - did not actually raise the further question (why had the Respondent not moved to remedy its error in respect of Ms King as soon as that had become apparent?).  That was because the ET had found that the Respondent did not appreciate the Claimants were in the same position as Ms King: it was only at the grievance appeal stage that it accepted that the Claimants had been appointed to TP status (after two of the Claimants had been prepared to show the full letters they had received in 2004 to that effect).  There may still be a question as to the ongoing treatment of Ms King as compared to the Claimants - and I understand that is the subject of a separate ET claim - but I consider this ET, on the claims before it, was entitled to restrict its deliberations as it did.  I, therefore, reject the grounds relating to these three complaints.

 

38.              The next two complaints concern the treatment of the Claimants as TPs, essentially failing to pay them at the appropriate level for ten years.  Again, in addressing this issue in its Reasons, the ET does not reference the burden of proof provisions and it is unclear whether it adopted a two-stage process, and, if it did, whether it found that the burden had shifted.  These complaints were again put on the basis that the Claimant had been treated less favourably either as compared to Ms King or as compared to a hypothetical comparator. 

 

39.              The ET’s Reasons reflect an attempt to deal with the generality of the complaint before returning to the specific comparison with Ms King.  That is not necessarily a helpful way of addressing the claim but it does not constitute an error of law.  On the complaint in general terms - allowing for the possibility of a hypothetical comparator - the ET’s reasoning shows that it has again gone to “the reason why” question: the reason why the Claimants were not paid at the appropriate level was because their move to TP status in 2004 was - erroneously - not communicated to payroll and they did not receive letters of variation of contract which would otherwise have served as the trigger for such communication.  As for the on-going failure to pay the Claimants on an appropriate basis, the ET answered that question by its finding that there had been no complaint by the Claimants or their trade union and an ongoing sequence of closures and headcount reduction had put any self generated review far down the Respondent’s agenda.  As for the specific comparison with Ms King, the answer remains that she had erroneously been treated as a Substantive ML4 and treated accordingly.

 

40.              Miss Ling complains that the ET erred in stepping in itself to provide the explanation for the Respondent in this instance, stating what was “more likely” to have happened, rather than what it actually accepted was the Respondent’s explanation.  I do not consider, however, that is a fair reading of the text in this regard.  It seems to me that the language used by the ET is reflective of the burden of proof.  The ET was finding what was more likely to be the explanation and made this finding after looking to see whether there was any broader pattern that might otherwise have led it to a different conclusion.  Whilst the reasoning may not do justice to the ET’s thought process in this regard, these grounds of appeal are not made out.

 

41.              The last complaint arising in respect of the direct discrimination complaint overlaps with the appeal in the victimisation claim (both relating to the investigation of the Claimants’ grievance).  The ET explicitly found a number of concerns in the Respondent’s handling of the grievance and considered Mr Wilkinson’s erroneous approach to race was “a piece of evidence from which to draw conclusions as to whether the grievance handling was discriminatory” (paragraph 95).  The difficulty is that there is no sign the ET then took that evidence into account when determining whether the handling of the grievance was discriminatory.  Mr Peacock says the ET’s finding as to how the Respondent would have responded to a hypothetical white comparator is a sufficient answer, but there remains a troubling confusion in the reasoning, which starts with the Respondent’s explanation and then descends into the question of less favourable treatment.  A further problem arises in that the ET’s second reference to the hypothetical white comparator approaches this on the basis it would be sufficient that such a comparator “may have received the same treatment” (paragraph 98). 

 

42.              Can I see through this confusion to a finding as to the reason why the Claimants’ grievances were handled as they were?  I do not think that I can.  Here, I agree with Miss Ling: having found no explanation from the Respondent, the ET itself stepped into the breach:

“96. … In the absence of an explanation from Mr Wilkinson, the Tribunal has to establish why this may have been. …”

 

That was not the ET’s role.  It amounts to an error of approach which then informed its conclusions, thus: “It may have been because Mr Wilkinson … forgot the pay claim” (paragraph 96) and “It appears simply to be lack of competence” (paragraph 97).  Similarly, noting the lack of explanation at the appeal stage, the ET’s conclusion is reliant on its surmise and conjecture, not on the evidence before it.

 

43.              That brings me on to the claim of victimisation.  Here, the ET apparently rejected the complaint because it found that there was no detriment because Mr Wilkinson did investigate.  That, however, was not the point in issue.  The ET had to consider not whether there was an investigation but whether the investigation carried out was adequate or, rather, whether such inadequacies as the ET found amounted to detriments; something the ET needed to assess from the perspective of the Claimants.  Is the answer - as Mr Peacock contends - all in “the reason why”?  Even if there were detriments arising from inadequacies in the grievance process, has the ET not made sufficient findings that this was all unrelated to the protected act?  I do not think I can safely conclude that it has.  First, because - for the reasons outlined in respect of the direct discrimination case relating to the investigation of grievance, above - I am not satisfied that the ET applied the burden of proof provisions here.  This was not - on the ET’s findings - a case where it could simply avoid doing so: it had found a number of inadequacies and needed to make clear findings as to whether that meant the burden had shifted and, if it had, what it found to be the Respondent’s explanation on whether that showed a good explanation other than the protected act.  Second, the ET’s reasoning is tainted by its earlier error of approach in - absent an explanation by the Respondent - itself filling in the gaps (see paragraph 96 and the reference back to the earlier findings).  That underpins the ET’s conclusions on the victimisation claim and undermines any finding as to “the reason why”.  In the circumstances, I do not consider I can uphold the conclusion on the victimisation claim. 

 

44.              For those reasons, I duly allow the appeal on those two separate complaints: complaint (6) in respect of the direct discrimination case and the separate victimisation claim.

 

45.              Having given my Judgment in this matter, I heard further from the parties on the question of disposal.  For the Claimants, Miss Ling urges that - given the ET’s finding of a lack of explanation - I should substitute my own conclusion, there being sufficient findings for me to be clear what the answer must be.  Alternatively, she contends remission should be to a different ET.  The original ET’s approach was found to be wholly flawed and remission to the same ET would be seen as giving it a second chance to make good its earlier errors; it had expressed its view on these matters and the Claimants could not have confidence in it approaching its task afresh.  An added benefit of remission to another ET might permit (although Miss Ling did not necessarily urge this course) this matter to be heard by the ET due to determine the second ET claim.  For the Respondent, Mr Peacock says there were various explanations given in evidence before the ET; it could not be said that - properly applying the burden of proof provisions - there was only one answer.  Whilst not entirely resistant to this matter being remitted to the ET hearing the second claim (although not be entirely straightforward), the first ET should be given the chance to make good its conclusions. 

 

46.              Addressing first the question whether I can substitute my own decision on the appeal, I do not think I can: I do not feel I can say there is only one answer to this matter.  I turn to the question of remission.  In these circumstances, I think that there is a real question whether remission to the same ET will look as it is being given a second bite of the cherry; it would be hard for the Claimants to have confidence in the process where the ET has already expressed a view as to what it, itself, considered might provide an explanation.  Having regard to the guidance laid down in Sinclair Roche & Temperley v Heard [2004] IRLR 763, I take the view this matter should be remitted to a differently constituted ET.  If it can be heard by the ET due to hear the second claim that would seem an entirely proportionate course.  I do not, however, know all the issues and case management directions relating to that claim and therefore leave that decision to the good judgment of the ET.