Appeal No. EAT/429/90

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 1 December 1992
	Judgment delivered on 4 December 1992

	Before

	THE HONOURABLE MR JUSTICE TUCKER

	MR G H GALBRAITH CB

	MR R JACKSON

BARKING, HAVERING AND BRENTWOOD
HEALTH AUTHORITY	APPELLANTS

MRS L E YEARWOOD-GRAZETTE	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR J BOWERS
	        (of Counsel)
Messrs Wiseman Lee
        Marshall
Solicitors
7 High Street
Rayleigh
Essex SS6 7EU

For the Respondents	MR T KIBLING
	        (of Counsel)
Messrs Brian Thompson &
        Partners
Solicitors
102 St George's Square
London SW1V 3QY

	MR JUSTICE TUCKER:   This is an employer's appeal from the decision of an Industrial Tribunal sitting at London North in June 1990 that the first and second Respondents (the Health Authority and Mr Allison) discriminated against the Applicant Mrs Yearwood-Grazette on racial grounds and ordering them to pay the Applicant compensation of £1750.  The Applicant now the Respondent to this appeal is employed by the Appellants as a District Enrolled Nurse and has been so employed since 1979.  In her application she complained that she had been victimised and discriminated against contrary to the Race Relations Act 1976 in a number of respects.  She named as the Respondents to her Application (1) the Health Authority (2) Mr Allison and (3) Mrs Edgar.  As has been indicated the Tribunal found the complaint to have been established against the first and second Respondents.  They made no order against the third Respondent.  This Appeal is brought only by the first Respondent, the Health Authority thereby leaving the order outstanding against the second Respondent.  The Tribunal expressly found that there had been no systematic ill-treatment of the Respondent and confined themselves to allegations concerning disciplinary action taken against her in the three months preceding the presentation of her Originating Application.  The Tribunal clearly had in mind the provisions of Section 68(1) of the Act and did not consider it just and equitable to consider any earlier allegations as substantive matters of complaint as referred to in Section 68(6).  Nevertheless the Tribunal went on to say that they considered them as part of the background to the case.

	The only substantive matter considered by the Tribunal was that arising out of an incident on the 12th March 1989 when the Respondent visited an elderly patient named Mrs Shuttleworth at her home.  The patient and her husband complained that the Respondent had put Mrs Shuttleworth on the lavatory and had left her there for three quarters of an hour unattended.  When Mr Shuttleworth complained to the Respondent about this he alleged that he was met with a tirade of shouting, threats and verbal abuse causing him and his wife extreme fear and distress.  He set out this complaint in a letter to Mrs Edgar dated 13th March 1989.

	On the 16th March Mr Allison suspended the Respondent on full pay pending investigation.  He did not at that stage tell her the nature of the complaint, but he wrote a letter to her that day confirming her suspension and saying that it was not part of the disciplinary procedure.  On the 23rd March Mr Allison wrote to the Respondent again requiring her to attend an interview on the 30th March to discuss and further investigate allegations that had been made against her regarding her conduct as a District Enrolled Nurse on the 12th March in her care of Mrs Shuttleworth.  He set out the allegations in that letter and stated that they were of a very serious nature and that his investigations might lead him to take formal disciplinary action.  He referred to the Health Authority Disciplinary Procedure and advised the Respondent of her right to be accompanied at the interview by her Trades Union representative or a friend.

	At the interview on the 30th March the gist of the Shuttleworths' allegation was made known to the Respondent.  By letter of the following day Mr Allison asked the Respondent to attend for further interview on the 6th April.  On the 5th April the Respondent wrote to Mr Allison saying that she appreciated that this interview did not constitute formal disciplinary action.   We do not understand why she should say this in the light of the contents of the letter of the 23rd March.

	The hearing resumed on the 6th April and it is clear from the notes of that interview that the Shuttleworths' allegations were again put to the Respondent.  She presented her written statement denying that she had made any threats or abusive remarks and alleging she had been subjected to racial abuse by the Shuttleworths.

	By letter dated 7th April to the Respondent Mr Allison confirmed his decision made at the hearing to issue the Respondent with a formal written warning.  In the second paragraph of that letter he said this:

"My investigations revealed that your response to Mr Shuttleworth's remonstrations were unacceptable and that your threats and verbal abuse of both Mr and Mrs Shuttleworth caused them extreme fear and distress.   The mitigating circumstances offered in your statement, that you yourself were the victim of racial harassment, were given full consideration when making my decision."

	The Tribunal found that the way in which Mr Allison dealt with these complaints was unfair and contrary to natural justice.   They find as they said in paragraph 8 of their decision that the Respondent was led to believe that the interviews she attended were not of a disciplinary character though they might lead to disciplinary action.   We find it difficult to understand how the Tribunal could have reached this conclusion having regard to the contents of the letter of the 23rd March to which we have already referred.   Equally we find it difficult to understand how the Tribunal could have found as they did that the Respondent was not given the full details of the complaints.   They were set out in the letter of the 23rd March and read out at the interview on the 6th April.

	Paragraph 9 of their decision having found that the Respondent was subjected to detriment in the manner in which the complaint was dealt with the Tribunal go on to say that they do not believe that Mr Allison was consciously activated by racial considerations.   They then say this:

"On the other hand, the deficiencies of justice to which we have referred clearly require an explanation.   We were not impressed by such explanation as was offered in evidence to us.   We cannot believe that complaints and counter- accusations are normally dealt with by the Respondents in this way.   To put it another way, we do not believe that a white nurse in the Applicant's position would have been so dealt with."

and at paragraph 10 the Tribunal say this:

"On the balance of probabilities, and in the absence of any acceptable explanation, we are prepared to find that these matters constituted discrimination on racial grounds."

	Counsel for the Appellants submits with some justification that in these passages the Tribunal are mistakenly transferring the burden of proof to the employers once the finding of unfavourable treatment has been made.   Moreover he submits that when the Tribunal found as they did that the only person mentioned in their decision i.e. Mr Allison was not consciously activated by racial considerations they cannot have found that the provisions of Section 1(1) of the Act were satisfied and they ought to have dismissed the complaint.   Furthermore Counsel submits that the decision of the Tribunal is expressed in such a way that it is impossible for the Appellants to know the grounds on which it lost the case.   Nowhere do the Tribunal make findings as to what would have happened to a white nurse in a comparable situation or spell out what would have happened in such a case.   He submits that without any such comparison the words set out by the Tribunal in paragraph 9 amount to a mis-direction.   As against this Counsel for the Respondent reminds us of the well known authorities for the proposition that the Tribunal's reasons are not intended to include a comprehensive or detailed analysis of the case.   Their purpose is to tell the parties in broad terms why they lose or win.   He submits correctly that decisions should not be subjected to detailed analysis or gone through with a fine toothcomb.   We bear these considerations very much in mind.   Nevertheless in our opinion there are several apparent contradictions and mistakes in the Tribunal's reasons which are in our view sufficient to flaw their decision.   We propose to allow this appeal and to remit the case to a differently constituted Tribunal for further consideration.   In these circumstances it is neither necessary nor appropriate for us to deal with the question of compensation.