Appeal No.	 EAT/889/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 25 March 1997

Before
THE HONOURABLE MR JUSTICE KEENE
MR D CHADWICK
MR R SANDERSON OBE

ASHWORTH HOSPITAL AUTHORITY	APPELLANTS

MR R BONOMALLY	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR M DUGGAN
(of Counsel)
Messrs Reid Minty
Solicitors
19 Bourdon Place
Mayfair
London
W1X 9HZ	
For the Respondent	MR GRUNDY
(of Counsel)
Messrs Lees Lloyd Whitley
Solicitors
Castle Chambers
43 Castle Street
Liverpool
L2 9TJ	

	MR JUSTICE KEENE:   The respondent to this appeal was a Registered Mental Nurse working on Blake Ward at Ashworth Hospital. The appellant was his employer.

	Mr Bonomally, who is from Mauritius, claimed that he had been discriminated against in a number of respects in his treatment by his employer, and that that discrimination was on grounds of race. An Industrial Tribunal at Liverpool decided by a majority that there had been racial discrimination by the appellant in one respect but not in the others alleged by the respondent. 

	The appellant now appeals against that decision in so far as the tribunal found it to have racially discriminated against Mr Bonomally. There are no cross-appeals.

	The one respect in which the respondent’s complaints were upheld was in relation to a failure by the hospital authority to allow him to carry over a holiday entitlement from one year to the next. This complaint arose because it was said by Mr Bonomally that Mr Westley, who was his Ward Manager up to the beginning of May 1995, had agreed that his holiday entitlement from the year 1994/95 could be carried over into 1995/96. The tribunal commented that such an arrangement was on the face of it beyond Mr Westley’s power to agree.

	As from 3rd May 1995, or thereabouts, Mr Westley was replaced by Mr Eley. The respondent thereupon sent Mr Eley a copy of a letter which Mr Bonomally had allegedly sent to Mr Westley dated 3rd March 1995, apparently confirming certain agreed leave dates for 1995/96 which would reflect some degree of carrying over of leave from the previous year. However, Mr Eley then came across another letter from the respondent to Mr Westley, a letter also dated 3rd March 1995, but this time setting out different leave dates. This caused Mr Eley some doubts as to the alleged agreement. Further correspondence took place between Mr Eley and the respondent and there were oral discussions as well.

	At a meeting on 8th July 1995 the respondent for the first time said to Mr Eley that the agreement was to carry forward his entire annual leave from the previous year, that is to say a total of some five weeks. During the course of these exchanges Mr Eley expressed his doubts as to whether the alleged carry over of leave was justified.

	Then on 15th September 1995 he wrote to the respondent as follows:

“I have now had an opportunity to review all your requests for leave and demands for time off which you claim were agreed by the former Ward Manager and which I agreed to allow you time off for with the caveat that it would not necessarily be classed as annual leave.
I have also discussed this matter with your Clinical Manager and have come to the following conclusions. Annual leave can only be carried over for up to one week with the permission of the Ward Manger and up to a maximum of two weeks with the Clinical Manager’s agreement. Public Holidays cannot be carried over. Leave and Public Holidays not taken due to sickness can be taken in the preceding Annual Leave Year.
In your case between September 1994 and March 1995 you were sick for a period of only six weeks. As such there is no justification for carrying any leave over due to sickness. Leave owed to you, therefore, for the period in question can only amount to a maximum of two weeks which your Clinical Manager had agreed can be carried forward.”

Dates were then set out and the letter concluded  on this aspect with words:

“I trust this finally resolves the matter.”

	The respondent then lodged a grievance which raised four heads of complaint. One of which was the refusal by Mr Eley to honour the leave arrangements agreed with Mr Westley. The hearing took place on or about 24th November 1995, and the Clinical Manager, Mr Scully, accepted that the Hospital should adhere to the holiday arrangement which Mr Bonomally claimed had been agreed with Mr Westley. In the end, therefore, the respondent was allowed his five weeks holiday carry over.

	In his Originating Application, Mr Bonomally alleged race discrimination because of this treatment amongst other things. The tribunal heard from a number of witnesses, including Mr Gardiner who had been Mr Eley’s superior. The tribunal in its decision said this:

“52 Mr Gardiner told us that had there been conclusive evidence of such an agreement with Mr Westley, then the letter of 15 September would not have been produced. Rather, he would have been obliged to refer the matter up to his superiors, given the unprecedented period Mr Bonomally was claiming to be able to carry forward. That is the step we believe he would have taken had he believed Mr Bonomally was telling the truth and that such an agreement existed.
53 The reason he and Mr Eley had been prepared to grant only two weeks was, he claimed, the doubts he and Mr Eley entertained concerning the existence of that agreement.”

	The tribunal, however, regarded the letter of 15th September as not being explicable simply on the basis of doubts, but only the basis that Mr Eley and Mr Gardiner had decided that there was no agreement between Mr Westley and Mr Bonomally to the effect claimed by the latter.

	The tribunal’s decision then continued as follows in paragraphs 56-61, which, since they are crucial to the issues in this appeal, we propose to quote in full:

“56 We must then ask ourselves whether that was a reasonable view for them to have taken.
57 Certainly, the production of the apparently conflicting letters at R70 and R71 was bound to be a relevant consideration.
58 However, in the light of Mr Westley’s character and the acknowledgement by Mr Eley and Mr Gardiner that Mr Bonomally had not taken his entitlement to holiday the previous year, the majority view was that any reasonable employer would have accepted Mr Bonomally’s claim in this respect. The minority view was that it was not unreasonable for the Hospital still to have disbelieved Mr Bonomally.
59 We have no reason to believe that Mr Eley and Mr Gardiner are generally irrational. We must ask ourselves why it was that they acted so unreasonably in this case, as we have concluded they did.
60 In the absence on any other explanation for their actions, we only assume that the reason is Mr Bonomally’s race or colour.
61 In other words the refusal by the Hospital to accept Mr Bonomally’s entitlement to carry over his entire holiday entitlement for the previous year (until the grievance was resolved) amounted to unlawful discrimination by them.”

	The tribunal then awarded the respondent the sum of £1,000 as compensation for injury to his feelings.

	The tribunal’s decision was based upon its interpretation of s.1(1)(a) of the Race Relations Act 1976. That provides:

“(1) A person discriminates against another in any circumstances relevant to the purposes of any provisions of this Act if-
(a)	on racial grounds he treats that other less favourably than he treats or would treat other persons; ...”

	Two grounds of challenge are now put forward on behalf of the appellant. First it is argued that the majority of the tribunal failed to apply the statutory provision properly or at all in relation to this particular claim advanced by the respondent, in that the tribunal confused the test of unreasonable behaviour with that of less favourable treatment. The tribunal, it is said, asked itself whether Mr Eley and Mr Gardiner had behaved reasonably, when it should have been posing the question: was the respondent treated less favourably than other persons were or would be treated by them. Mr Duggan submits that the tribunal’s approach was wrong in law. He relies for this submission on paragraph 56 of the decision which we have already quoted, and to that part of paragraph 58 where the majority view is expressed that “any reasonable employer would have accepted Mr Bonomally’s claim”.

	On this first ground, Mr Grundy on behalf of the respondent makes three points. First, he draws attention to the fact that on other claims made by the respondent the tribunal did clearly apply the proper test. When dealing with the issues of what were called “the pay back” shift, and the change from night to day shift, the tribunal expressly applied the statutory test of whether Mr Bonomally had been treated any less favourably than any other actual or hypothetical person. It would, it is argued, be surprising if the tribunal then forgot to apply the right approach when it dealt with the third category of claims concerning holiday entitlement.

	Secondly, the respondent argues that when considering if there has been discrimination it is a proper approach to ask whether a reasonable employer would have behaved differently. Thirdly, Mr Grundy contends that the right test is implicit in paragraph 59 of the decision where the tribunal states that there was no evidence that Mr Eley and Mr Gardiner were generally irrational. That, he says, means that the tribunal was saying that Mr Eley and Mr Gardiner would not have treated hypothetical comparators in the same way. 

	We shall deal with this first issue before turning to the second ground of challenge and to the arguments advanced on that second ground.

	There is no doubt that there are two elements in direct discrimination as covered by s.1(1)(a) of the Race Relations Act 1976. It must first be proved that there has been discrimination, that is to say that the complainant has been treated less favourably than others in his circumstances had been or would be treated. Then it has to be established that such discrimination was racial, that is to say that it was on racial grounds. But the first element involves the comparative approach. 

	Save in one aspect, there is no disagreement between the parties as to the law on this. This issue thus concerns principally a matter of interpretation of the tribunal’s decision in this case. The one exception to that arises from Mr Grundy’s proposition, his second argument, that it is a proper approach to ask whether a reasonable employer would have behaved differently. That proposition is not accepted by the appellant. We agree with the appellant. It is one thing to say that a reasonable employer would have behaved differently, but quite another to say that this employer would have behaved differently towards another employee, actual or hypothetical. It is the latter which provides the true test in such cases. It could be highly misleading in some circumstances to treat the first of those two propositions as a substitute for the second.

	It is to be observed that the tribunal’s decision begins to adopt, on the face of it, a reasonableness test even before the tribunal deals with the carry over of holiday entitlement. In paragraphs 46 and 47, while dealing with the issue of the scheduling of holiday dates, the tribunal can be seen already saying that Mr Eley “reasonably did not perceive these dates falling within” the category of agreed dates; and its conclusion on that aspect was simply that there was nothing to criticise in Mr Eley’s scheduling of dates. None of that analysis involved any comparison with how he would have treated another person in such circumstances. 

	Then at paragraph 56 and paragraph 58 the tribunal was undoubtedly asking itself whether Messrs Eley and Gardiner had behaved reasonably. The whole tribunal did that. The only difference was that the majority concluded that those two men had not behaved reasonably, while the member in the minority concluded otherwise. Given those repeated references to that question, it would not be right in our view to place much weight on the fact that the tribunal had applied the right test earlier in its decision when dealing with the other claims advanced by the respondent.

	The final argument advanced by Mr Grundy is somewhat more persuasive. This is the suggestion that one can construe the reference to Messrs Eley and Gardiner not being generally irrational as an implied application of the correct test of “less favourable treatment”. We can see that that might have been what the tribunal had in mind, but we are not in the end persuaded that that is so. It is important in cases such as this that the tribunal should find and find in clear terms that some other person had been or would have been treated more favourably. That is the crux of the statutory test. As was said by the Court of Appeal in the case of Chapman v Simon [1994] IRLR 125, there must be a finding of discrimination on which to base a finding of racial discrimination. There is no finding here that we can discern that some other person had been or would have been treated more favourably.

	We are satisfied, therefore, that the tribunal did not apply the appropriate test in order to establish discrimination. The latter is not the same thing as unreasonable behaviour and they cannot automatically be equated. In Qureshi v London Borough of Newham [1991] IRLR 264, it was said by Leggatt LJ at page 267, paragraph 27 that:

“Incompetence does not, without more, become discrimination merely because the person affected by it is from an ethnic minority.”

We would only add that unreasonable behaviour is not converted into discrimination merely for that same reason.

	That it is sufficient to determine this appeal. But in deference to the argument advanced by the parties on the second ground of appeal, we shall deal briefly with the points raised under that heading.

	The appellant’s second attack on the majority decision of the tribunal is based upon paragraph 60 where it was said “in the absence of any other explanation for their actions, we can only assume that the reason is Mr Bonomally’s race or colour”. Mr Duggan argues that the words “can only assume” indicate that the majority was seeing the conclusion of a racial reason as the automatic and inevitable result of the absence of an explanation. Yet he points out that in fact an explanation had been given for the letter of 15th September 1995, and he argues that the mere fact that an explanation is unsatisfactory does not require that a racial inference should automatically be drawn. In support of that as a proposition he refers to the decision in Leicester University Students Union v Mohammed [1995] ICR 270 at page 280D. 

	Mr Grundy for the respondent submits that that phrase in paragraph 60 is not to be seen as indicating that the tribunal regarded such an inference as automatic. He draws attention to the fact that the tribunal had earlier in its decision at paragraph 54 found the explanation proffered for the letter to be inadequate, and he argues that in those circumstances it is proper for a tribunal to draw an inference of a racial basis for the discrimination as was indicated in King v Great Britain China Centre [1992] ICR 516.

	For our part we do not regard the use of the word “assume” as of particular significance. We read that passage to which Mr Duggan refers as one where the tribunal was really only saying that they were inferring that any discrimination was on racial grounds. It is also clear that there was an explanation for Messrs Eley and Gardiner’s actions, that is to say their doubts over the alleged agreement. But the tribunal had already concluded that that was not an adequate explanation. It is important, as this tribunal has said many times, that decisions such as this should be read as a whole, and when we read paragraph 54 in conjunction with paragraph 60 we do not find that the phrase upon which the appellant now relies has the particular significance which is asserted. Properly read, we do not find any error of law at that stage in the tribunal’s decision, although we are bound to say that this part of its decision could have been more happily phrased. Nonetheless, because we have concluded that the tribunal fell into an error of law in its approach to the issue of discrimination, the first element in racial discrimination, this appeal must be allowed. 

	We shall remit the claims categorised by the tribunal as (3) “Carried over and scheduling/verification of holidays” to be redetermined by a fresh tribunal. The reason why we do not confine that redetermination solely to the aspect of the carrying over of holiday entitlement and the letter of 15th September 1995 is that we do not believe that that aspect could be considered properly in isolation from the rest of the claims concerning holidays which were put into the third category along with it. But the tribunal’s decision on the claims (1) and (2) will stand.