Appeal Nos. EAT/1169/00 EAT/565/01; EAT/566/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 December 2001

Before
THE HONOURABLE MR JUSTICE MAURICE KAY
MR B GIBBS
MISS D WHITTINGHAM

THE HOME OFFICE	APPELLANT

MR S A BUTT	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR G BRANCHFLOWER
(of Counsel)
Instructed by:
Ms Sharon Hiles
The Treasury Solicitor
Queen Anne's Chambers
28 Broadway
London SW1H 9JS	
For the Respondent	MR D MENDES DA COSTA
(of Counsel)
Instructed by:
Messrs Eatons
The Old Library
34 Darley Street
Bradford
West Yorkshire BD1 3LH	

MR JUSTICE MAURICE KAY

1	This is an appeal by the Home Office against a Decision of an Employment Tribunal sitting in Leeds in July 2000.  The background to the case is that the Respondent, Mr Butt, worked with the Drugs Prevention Initiative, based in Bradford.  He started to work there in October 1991 on a three year fixed term contract.  However, that was later extended by agreement until March 1995.  It seems that he was then put on a further fixed term contract on 1 April 1995 for a period of four years.  That would normally have expired on 31 March 1999.  At the relevant time Mr Butt was the only member of the seven or eight of a group of employees at the DPI in Bradford who was from an ethnic minority background; he is a person of Asian origin.  

2	The history of Mr Butt’s employment with the DPI appears to have been uneventful until February 1998 when he took sick leave.  That turned out to be lengthy sick leave.  The first period of employment resulted in an earlier application to the Employment Tribunal which was heard in August and October 1998.  

3	During the course of that Tribunal hearing, Mr Butt discovered certain things about the future of the agency with which he was working.  It seems that a decision had been taken to discontinue the DPI with effect from 1 April 1999 and to replace it with a new agency known as the Drugs Prevention Advisory Service.  Mr Butt had seen an advertisement for positions of Drugs Prevention Advisors in 1998, and he had made an enquiry during the Employment Tribunal hearing in October 1998 as to how members of the West Yorkshire DPI team had been informed about the advertisement.  Those present at the Tribunal apparently did not know the answer to that question.  

4	The Employment Tribunal in the present case found that a Home Office Notice had been issued to the DPI staff in Bradford on or about 4 September 1999 to the effect that vacancies were being advertised in the national press for Regional Managers and Drugs Prevention Advisors to work in the Drug Prevention Advisory Agency.  

5	The Central Drugs Prevention Unit sent application packs containing the necessary Application Form direct to the Bradford office and no doubt to other offices as well and these were distributed to the existing staff who were then able to make the appropriate applications for the positions in the new agency.  Mr Butt did not make such an application, although he had seen the advertisements.  However, he had not received an application pack.  

6	On 4 January 1999 Mr Butt’s solicitors wrote to the Treasury Solicitor who had represented the DPI in the original Tribunal proceedings.  The letter asked whether Mr Butt could return to work “once he is fit to do so, and if so, on what basis”.  The letter did not say, in terms, that Mr Butt was by then fit to return to work.  It was not until 5 March 1999 that the Central Personnel Management Unit of the Home Office replied to that letter.  The reply was in these terms:
“Once Mr Butt informs us that he is fit to return to work we will find a job for him. Mr Butt may wish to be aware that we do not intend to engage him at our Bradford Office but will want to post him to our Manchester Office.  We would, of course, pay any additional travel costs that this would incur.”

7	Amongst the facts found by the Employment Tribunal is a finding that Mr Butt had indicated, at an early stage of his absence from work, that various types of correspondence should not be forwarded to him during his absence and in due course, had indicated that no correspondence at all should be sent to him.  He left a message on the telephone answering machine to that effect and the office acted upon that message.  The Home Office witnesses were eventually to explain that that was the reason for not having sent Mr Butt an application pack in September 1998.  

8	In the event, Mr Butt did not proceed to work in Manchester.  His account was that he had been fit to return to work in January 1999 and that was accepted by the Employment Tribunal.  There was, it seems, little or no communication between Mr Butt and the office in Bradford in early 1999; the Employment Tribunal concluded that he had wished to return to work either in Bradford or Manchester; all that he had to do was to say so in specific terms, prior to 31 March when his contract was due to come to an end.  That date duly passed and the employment came to an end.  

9	However before that, Mr Butt’s solicitors served a questionnaire pursuant to Section 65 of the Race Relations Act 1976.  In it the Home Office confirmed that no correspondence had been sent to Mr Butt about the Drugs Prevention Advisory Service and answered numerous other questions.  Upon the basis of those answers and his perception of the situation, Mr Butt commenced proceedings alleging unlawful race discrimination in the form of both direct discrimination and discrimination by way of victimisation.  These allegations were contained in a number of complaints.  Those complaints were, in due course, listed by the Employment Tribunal and determinations were made in relation to each of them.  

10	A number of the allegations did not find favour with the Employment Tribunal.  This included an allegation that the failure to send the application pack to Mr Butt was an act of direct discrimination on racial grounds.  Dealing with that allegation in that form, the Employment Tribunal said, at page 11 of our bundle:
“In the case of the Application Pack, a deliberate decision was made that the Pack would not be sent.  Again, not without some hesitation, we have concluded that was not a matter of direct discrimination.  The reason argued by the Respondent for the failure to send the Pack, namely the Applicant’s [Mr Butt’s] request that no correspondence be sent to him, is one that the Tribunal can, and does, accept.  Accordingly, the less favourable treatment which the Respondent concedes occurred was not on racial grounds, but by reason of the Respondent making a decision to comply with the Applicant’s [Mr Butt’s] own request.”

That was the third in sequence of the complaints that were dismissed.  The three following complaints, however, succeeded before the Employment Tribunal and, in relation to each of them, the Home Office seeks to appeal.  

11	The first of these related to an allegation that the failure to supply the application pack amounted to victimisation, pursuant to Section 2 of the 1976 Act.  We set out in full the findings of the Employment Tribunal in relation to that complaint, they are at page 12 of our bundle and are in the following quotation:
“The Applicant [Mr Butt] obtains considerable assistance from the evidence of Maxine Walton, on behalf of the Respondent.  She told the Tribunal that when the Application Packs were received, she spoke to Diana Green in the Central Personnel Management Unit …….to ask her advice about the Applicant [Mr Butt] and about sending him an Application Form.  Ms Green, apparently, told Ms Walton that in view of the fact that the Applicant [Mr Butt] had made it clear that he did not wish to receive any correspondence from the DPI, it would be prudent not to send him an Application Form. 
“as it could be taken the wrong way by [the Applicant]” [Mr Butt].”
We enquired as to what was meant by that quoted phrase.  Ms Green was not called as a witness and could not provide any direct evidence.  Nor surprisingly, Ms Walton was not able to give any real assistance as to what Ms Green meant in her advice.  Nonetheless, since both Ms Green and Ms Walton were, at the relevant time, employees of the Respondent, the Respondent is liable for their joint and several advice and actions.  In the context of that advice being given by Ms Green during the currency of Employment Tribunal proceedings, it is impossible not to draw the inference that the decision not to send the Application Pack was directly caused by the Applicant [Mr Butt] having committed the protected act.  We draw that inference from all of the evidence.  We hold that the failure to send the Application Pack to the Applicant [Mr Butt], or at the very least, to notify him that it was available for collection, was an act of victimisation  For the reasons set out above, it is also unlawful.  The Applicant’s [Mr Butt’s] complaint in respect of that matter, therefore, succeeds.”

On behalf of the Home Office, Mr Branchflower seeks to challenge that finding as being legally erroneous.  He advances three separate grounds of appeal.  

12	The first ground of appeal relies upon a comparison of the passage which we have just quoted in full with the previous finding in which the Employment Tribunal had unequivocally accepted, or found, that the omission to send the application pack was not a matter of discrimination, and was not made on racial grounds, but by reason of the Home Office making a decision to comply with Mr Butt’s own request not to send correspondence to him.  On the face of it, those two different parts of the Extended Reasons do not live easily together.  On behalf of Mr Butt, Mr Mendes da Costa has sought to explain the apparent incompatibility of those two passages by submitting that the later passage, the one dealing with victimisation, is the one taken by reference to “all the evidence”, whereas the earlier part, dealing with the rejected complaint of direct discrimination, was based on a more limited review of the evidence.  In our judgment, that is not a persuasive distinction between the two passages.  

13	We accept Mr Branchflower’s submission that the earlier part of the Extended Reasons found as a primary fact that the Home Office had not omitted to send the application pack for any reason attributable to racial grounds, but for an entirely different and uncontaminated reason.  In those circumstances, we have come to the conclusion that on this point, the Decision of the Employment Tribunal cannot stand.  We shall leave, until a later stage, what ought now to follow from that Decision allowing the appeal on that point.  

14	We turn next to the grounds of appeal which are directed towards the findings that the decision to post Mr Butt to Manchester, rather than Bradford, was both victimisation and direct discrimination.  We deal firstly with the Extended Reasons provided by the Employment Tribunal in relation to the complaint of victimisation.  They referred to the letter from Ms Green, dated 5 March, which we have already quoted.  The Extended Reasons then proceed as follows:
“It is in very clear terms and does not allow for any discussions or negotiations between the parties.  In addition to that evidence, we have heard the evidence of Mr Jones to the effect that it was decided that it would be 
“in everyone’s best interests for [the Applicant] [Mr Butt] to start afresh in the  Manchester team.”
As the Applicant [Mr Butt] properly pointed out, he was not consulted as to whether it was in his best interests that he should work in Manchester; he was, in effect, presented with a fait accompli.  In those circumstances, we are bound to ask whether the decision that the Applicant should work in Manchester was made not in everyone’s best interests but solely in the Respondent’s best interests.  What were those interests?  We can only conclude that those interests were those of the Respondent in avoiding, even for the very short period of three or four weeks that remained before the Applicant’s [Mr Butt’s] contract expired, having the Applicant working with his colleagues at the Bradford office.  We heard lengthy explanations from the Respondent’s witnesses to the effect that there was a shortage of staff in Manchester and that there was very little work to do in the Bradford office.  That may well have been the case, but the contribution that the Applicant [Mr Butt] could have made to the work of the Manchester office over that very short period must also have been extremely limited.  Further, both the Bradford and Manchester offices were winding-down, as DPI itself ceased to exist.  In any event those explanations are not contained in Ms Green’s letter.  That letter does not seek to give the explanation for which the Respondent now contends nor, indeed, does it give any explanation for the decision to re-deploy.  It is simply a statement of an intention to redeploy.  The explanation as to the relative value of the Applicant [Mr Butt] at the two offices is inconsistent with the evidence of Mr Jones.  It is impossible not to draw the inference that the decision that there should be re-deployment was directly connected with and was caused by the Applicant’s recent proceedings before these Tribunals.  It is therefore an act of victimisation.”

15	Mr Branchflower’s challenge to those findings, and that conclusion, raises a number of points.  The principal ground of appeal, in relation to this aspect of the case, criticises the finding of inconsistency between the evidence of Mr Jones and the evidence of other employees and contends that the Employment Tribunal did not make an appropriately clear finding for rejecting the reasoning advanced on behalf of the Home Office by its witnesses.  

16	The evidence of Mr Jones began in a witness statement that was before the Employment Tribunal which contained the following passage:
“By the time the letter of 4 January was received, Mr Butt had been on long term sick leave for almost a year.  During this time drugs prevention projects on which he had been engaged before February 1998 had either been abandoned or taken over by colleagues.  The organisation was winding down, because of the impending closure of the office, and there were no new projects.  It would have been difficult to keep Mr Butt usefully engaged in the Bradford office.  He could have been more usefully employed in the Manchester office, and it was decided that it would be in everyone’s best interests for Mr Butt to start afresh in the Manchester team.”

That, as we have seen, survived through cross-examination into the form in which the Employment Tribunal expressed it in its Extended Reasons.  

17	We have to ask ourselves whether there is any force in Mr Branchflower’s submission that the findings of the Employment Tribunal do not include an intelligible rejection of the reasons advanced by the Home Office witnesses, and do not contain a basis upon which the inference of victimisation could properly be drawn.  In our judgment, read as a whole and in context, the Employment Tribunal was entitled to reach the conclusion that it did on this point, and we find no legal error in the process by which it did so.  It is clear to us that the Employment Tribunal was attaching significance to the words “in everyone’s best interests” and that it was entitled to do so.  It was also entitled to have regard to those aspects of the evidence, to which it referred, in leading it to the eventual conclusion which Mr Branchflower seeks to challenge.  He seeks to meet the point about the reasoning not having been included in Ms Green’s letter by pointing out that the reasoning was included in the response to the questionnaire to which we have referred.  However, that, it seems to us, does not cast a doubt on the omission from Ms Green’s letter being a tenable, relevant factor.  The questionnaire, of course, came later.  

18	It is also the case, as Mr Mendes da Costa has observed, that in the course of his evidence, Mr Jones said certain things that were helpful to Mr Butt in this regard.  So far as the proposed relocation of the work was concerned, Mr Jones conceded:
“It does seem odd not to have asked you.”
In other words he was finding oddity in the lack of consultation that had occurred, and later, in answer to the Chairman of the Tribunal, Mr Jones said:
“I can see how he might see it as victimisation”.

19	Mr Branchflower also sought to challenge this finding by submitting that the Extended Reasons do not embrace a specific finding that requiring Mr Butt to work in Manchester for those three or four weeks amounted to less favourable treatment.  In this regard he sought to place some reliance on the decision of the Court of Appeal in The Post Office - v- Essian (18 October 1996, unreported).  In our judgment, that does not avail him in the present circumstances because, as Mr Mendes da Costa right submits, it is self-evident and clear beyond a peradventure that being required to work those three or four weeks in Manchester, some thirty or more miles away across the Pennines was, on any basis, less favourable treatment.  We have therefore come to the conclusion that whilst another Employment Tribunal may have reached a different conclusion, the conclusion of this Employment Tribunal on the question of victimisation in relation to the move to Manchester, was not vitiated by any legal error.  

20	We next turn to the finding that the redeployment was also an act of direct race discrimination.  It seems to us that the reasoning of the Employment Tribunal, and our analysis and conclusions about it in relation to victimisation on this part of the case, apply equally to the finding of direct race discrimination, and for the same reasons, we conclude that the finding is not afflicted by any legal error.  So far we have considered the Extended Reasons of the Employment Tribunal purely by reference to the findings that were made and through a consideration as to whether they were findings and conclusions which, on the face of them, did or did not contain legal error.  

21	There is another submission made by Mr Branchflower that he applied both to the first ground of appeal, which we have allowed, and the part of the case in respect of which we have indicated that we shall dismiss the appeal.  We deal with that other ground of appeal here, and say the same about it in relation to each of the grounds, in respect of which it is raised.  The point which Mr Branchflower seeks to make is that the language of the Employment Tribunal, when deciding that “it is impossible not to draw the inference” either of victimisation in relation to the application pack or victimisation in relation to the redeployment to Manchester.  Mr Branchflower’s submission is that the language of “impossible not to draw the inference” is legally wrong.  In support of that submission, he relies upon the well known decision of the House of Lords in Glasgow City Council -v- Zafar [1997] 1 WLR 1659, and in particular, in the passage of the speech of Lord Browne Wilkinson at page 1664.  That passage is in these terms:
“If the tribunal meant to decide that, at this very last stage in the dealings between the parties, the attitude of the local authority on racial discrimination had changed and it had become racially prejudiced, the tribunal must surely have said so in the clearest terms.  Instead it expressed itself has having “no choice but to draw the inference” of racial prejudice, i.e. it held it was bound in law to draw the inference of racial prejudice in the absence of any other satisfactory explanation given by the local authority of the differential treatment accorded to the applicant.”

Whilst we see the superficial similarity as between the words “no choice but to draw the inference” and, in our case, “impossible not to draw the inference” what this Employment Appeal Tribunal has to do is to set the words used in the context in which they were found.  This is not a case in which there was an absence of explanation from the employer.   Explanations were, indeed, advanced.  Crucially, and we say this particularly in relation to the redeployment to Manchester, those explanations were rejected in an adequately reasoned way.  

22	It seems to us that at the end of the day, the challenge on the basis of the words “impossible not to draw” is ultimately somewhat semantic in the circumstances of this case. We are satisfied that what the Employment Tribunal was saying when it used those words was that, having regard to the law about the drawing of inferences in this context, having listened to but permissibly rejected the employer’s reasons as advanced for less favourable treatment, and not having found any other material compatible with an absence of victimisation, in all those circumstances, it was appropriate, and irresistibly so, in the eyes of the Employment Tribunal to draw the particular inferences.  In those circumstances we do not consider that the language used, in the context in which it was used, was fatal to the findings in the way that it was in Zafar.  

23	It follows from all that we have said, therefore, that we shall allow the appeal in relation to the application pack victimisation point but dismiss the appeal in relation to the redeployment to Manchester.  We shall hear further submissions on the implications of allowing the first part of the appeal when we resume in an hour’s time.  By then we hope that the parties will have digested this judgment to the point where they can decide the way in which we ought to consider the remedies appeal.  

24	Finally, and this is by way of remedying an omission, we ought to add this.  In connection with the application pack part of the appeal, Mr Branchflower did raise another point about whether or not the Employment Tribunal had approached the question of a comparator in the correct way.  We can see why, on the face of the Decision of the Tribunal, he takes that point and there may well be force in it.  The difficulty is that Mr Branchflower made a concession in the face of the Employment Tribunal, which is recorded at page 10 of the Decision.  It may be that the Employment Tribunal misunderstood the ambit of that concession.  However, in view of the way in which it was understood, it seems to us that it is inappropriate to probe further into that aspect of the case.  We have allowed the appeal on the main ground, in any event, and to consider further the part of the appeal which would have required investigation of that concession, and whether or not it was misunderstood, and why, if it was misunderstood on the face of the Decision, it did not lead to an application for review, are all matters which we think make it undesirable for us to venture further into that matter today.  

25	In connection with the failure to send the application pack we have considered now what should flow from that.  We have concluded that, in all the circumstances, there was a perverse finding; there was a drawing of an impermissible inference, having regard to a clear finding of fact, and in those circumstances, we propose not to remit the matter to the Employment Tribunal, but to substitute a finding of this Tribunal that there was no victimisation, in relation to the failure to send the application pack to Mr Butt.  We shall therefore proceed to hear the appeal and cross-appeal on the subject of compensation.  
(Later
26	We shall give leave for the withdrawal of the appeal and cross-appeal in relation to compensation and we shall, with the consent of the parties, substitute a total compensation figure, inclusive of interest, of £5,291.60