Appeal No.	 EAT/0339/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 June 2002

Before
THE HONOURABLE MR JUSTICE MAURICE KAY
MR D J JENKINS MBE
MR J R RIVERS

BLOSSOM SIMON	APPELLANT

(1) BUPA CARE SERVICES
(2) LESLEY COCKBAIN	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR MARC JONES
(Solicitor (pro bono))
Messrs Underwoods Solicitors
83-85 Marlowes
Hemel Hempstead
Herts
HP1 1LF	
For the Respondents	MR PAUL EPSTEIN
(of Counsel)
BUPA Legal Dept
BUPA House
15-19 Bloomsbury Way
London
WC1A 2BA	

THE HONOURABLE MR JUSTICE MAURICE KAY

1	This Appellant, Blossom Simon, is a black woman who was employed by the Respondents as a Care Assistant at one of the Respondent’s nursing homes.  In 1999 she lodged an application to an Employment Tribunal alleging race discrimination.  That case against the Respondents was heard in or about January 2000 but the decision was not promulgated until some time later.  In the meantime, on 2 February 2000, the Appellant was involved in an altercation with a white woman, Ms Cardy, who was also employed in the nursing home as a Care Assistant.  The altercation was about the allocation of their respective duties.  Voices became raised.  It seems that Ms Cardy called the Appellant “ignorant” and the Appellant described Ms Cardy’s face as “ugly” and probably said something to her about putting bleach on her face so as to improve it.  

2	The manager of the nursing home was Ms Cockbain.  She had heard some of the altercation.  Her initial reaction was to admonish both women in similar terms.  In the event however, the matter did not end there.  Ms Cockbain reported the incident to the Respondent’s Human Resources Department.  The Extended Reasons provided by the Employment Tribunal in the present case state:

“…it appears that notwithstanding the fact that the incident appeared to have been dealt with equitably by treating both participants alike and admonishing them both, a Miss Titterington instructed Ms Cockbain to conduct a formal investigation into Ms Cardy’s ‘complaint’.”

As a result of that instruction, Ms Cockbain obtained statements from a number of members of staff and documents were forthcoming from, amongst others, the Appellant and Ms Cardy.  The Employment Tribunal found it significant to note that Ms Cardy referred to the incident as:

“… a tirade of abuse”

but did not at any time complain that she was subjected to such treatment on account of her race.

3	On 6 March 2000 disciplinary proceedings against the Appellant were heard by Mr Unsworth.  The Extended Reasons record that no witnesses were called and there was no exploration by Mr Unsworth of the question whether there had been a racial element in the exchange of hurtful comments.  Nevertheless he decided that the appropriate response was for the Appellant to be summarily dismissed.  The letter of dismissal refers to the Appellant having:

“… used racial remarks towards a fellow employee.”

In due course the Appellant appealed.  Her appeal was heard by Mr Thomas on 15 May 2000.  That appeal was dismissed.  Mr Thomas did not enquire further into the alleged racial element nor seek to resolve the differing accounts of the precise language that had been used.

4	So far as Ms Cardy is concerned, she resigned very shortly after the incident.  In her letter of resignation she referred to problems of illness and family bereavement and said that she did not need or want any further upset or aggravation.  She added:

“I absolutely refuse to be spoken to or put up with the kind of verbal abuse I endured yesterday…  I have no intention of being treated in that way again.”

5	The Appellant lodged an application with the Employment Tribunal alleging both unfair dismissal and race discrimination in the form of victimisation.  Her application was heard in October and November 2000.  The decision of the Tribunal was promulgated on 8 January 2001.  The claim that she had been unfairly dismissed succeeded.  The Employment Tribunal took a dim view of various procedural shortcomings in the investigation undertaken on behalf of the Respondents.  They concluded:

“The Tribunal has no doubt that the Respondents were satisfied that the Applicant had addressed abusive remarks to Ms Cardy since that was admitted, but their belief that the remark in question was racial, albeit genuine, was not the product of a reasonable investigation.  Accordingly we find that the dismissal was unfair.  ….it is clear that the Respondents fundamentally breached their own procedure.”

That finding of unfair dismissal resulted in a modest award of compensation which was itself reduced by fifty percent on the basis of contributory fault.

6	There is nothing before us by way of appeal or cross-appeal in relation to the unfair dismissal aspect of the claim.  What is before us is an appeal by the Appellant against the finding of the Employment Tribunal that she was not discriminated against on grounds of her race.  The claim in that regard was put on the basis of Section 2 of the Race Relations Act 1976 and was directed at an allegation of victimisation linked to the making of the previous claim of race discrimination which remained unresolved by the Employment Tribunal at the date of the events with which this case is concerned.  The relevant part of Section 2 is to be found in Section 2(1)(a) in the following words:

“(1)	A person (“the discriminator”) discriminates against another person (“the person victimised”) in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has –
(a)	brought proceedings against the discriminator or any other person under this Act.”

It is now well established in the authorities culminating in Nagarajan v London Regional Transport [1999] IRLR 572 that any victimisation under that Section does not have to be shown to have been conscious or motivated by an express desire to victimise.  It is also well established that the jurisprudence concerning the drawing of inferences in an appropriate case originally developed in the context of direct race discrimination is equally applicable to a case of victimisation.  It is not necessary for us to set out the authorities in that regard.

7	The reasoning of the Employment Tribunal on the victimisation claim is set out in paragraph 12 of its Extended Reasons.  It is necessary for us to quote extensively from that paragraph.  It states:

“Turning to the allegation that the Respondents discriminated against the Applicant on grounds of her race.  This is a complaint which arises under S:2 of the Race Relations Act 1976 and it is for the Applicant to establish that she was treated less favourably by the Respondents because she had brought proceedings against them.  The Applicant has adduced no evidence beyond a bare assertion that she would not have been subjected to disciplinary proceedings or dismissed but for the complaint she had made.  It is however right to recognise that it is often difficult for an applicant to produce direct evidence in these circumstances and it is for that reason that we approach the task by looking to see whether there are established primary facts from which we might properly draw an inference.”

Pausing there for a moment, there is no criticism on behalf of the Appellant of that introduction to the task which the Employment Tribunal was to perform.  Addressing the particulars of the present case, the Employment Tribunal stated:

“In this case there can be no question that the Applicant was engaged in conduct, which properly brought her to her employer’s attention.  She has admitted being a party to the argument and has admitted that she used words of abuse to Ms Cardy.  It is also the case that on one occasion Ms Cardy reported a form of words which the Respondents used to construe racial harassment.  There is no evidence that Ms Cardy was aware of the Applicant’s earlier proceedings when she made her complaint.  Indeed she initially disclosed her version of the events to her employers whilst herself being admonished for her part in the matter and this cannot in our view give rise to any inference that the matter was raised artificially.  This leaves the question of the disciplinary proceedings and the sanction of dismissal.  If, following a proper investigation, the charge had been properly proved against the Applicant then the Respondent’s established policy would have permitted summary dismissal on grounds of gross misconduct and thus we cannot properly draw an inference from the fact of dismissal.  The investigation was flawed and we have found that the procedure adopted was deficient, but on a balance of probabilities we conclude that his was the product of ineptitude.  Accordingly there is no basis upon which an inference can be drawn that the Respondents treated the Applicant less favourably because she had brought proceedings against them and her claim that she was discriminated against is dismissed.”

8	On behalf of the Appellant Mr Jones makes a number of criticisms of this passage.  First, he submits that the Employment Tribunal erred by making no reference to, and inferentially by attaching no importance to, the fact that Mr Unsworth at the time of the decision to dismiss knew of the protected act.  Mr Jones submits that the Employment Tribunal failed to consider whether that knowledge subconsciously affected the decision to dismiss.  On behalf of the Respondent Mr Epstein submits that it was common ground that Mr Unsworth had that knowledge of the protected act.  So there was no need to make an express finding about it.

9	In our judgment, although it was common ground that Mr Unsworth had that knowledge, the question whether that knowledge played any part in the decision, was very relevant to the issue that was before the Employment Tribunal.  We have come to the conclusion that it was erroneous of the Employment Tribunal not to address Mr Unsworth’s state of knowledge when considering whether or not it was appropriate to draw an inference of discrimination.  We conclude, on that issue, that the Employment Tribunal either wrongly failed to consider it and its potential relevance, or, if they did consider it, they failed to explain why, in the circumstances, it was not significant in relation to the question of the possible drawing of an inference.  

10	So far as that latter alternative possibility is concerned, this is one of a number of points in this case where we have had to have regard to the authorities on the subject of the adequacy of reasons in the decisions of Employment Tribunals.  We have taken the law to be that set out in Meek v City of Birmingham District Council [1987] IRLR 250 at 251, Lindsay v Alliance and Leicester plc unreported 3 March 2000, paragraph 39, and High Table v Horst [1997] IRLR 513 at paragraphs 24 and 25.  

11	The next criticism advanced by Mr Jones goes to the treatment in the Extended Reasons of Ms Cardy’s lack of knowledge of the protected act.  The submission is that that lack of knowledge was simply not relevant to the issue under consideration at that part of the reasoning.  It was not being suggested that Ms Cardy was party to any victimisation by reference to a protected act.  Indeed, we infer it was not being suggested that Ms Cockbain was either, because although she had been a Respondent to the application when it was lodged by the Appellant, at the outset of the hearing the Appellant withdrew the complaint against Ms Cockbain and it was consensually dismissed.  It seems to us to be clear that the Appellant’s case at the hearing was that “the Respondents” victimised her and that reference to “the Respondents” is clearly a reference to those who decided to dismiss her and possibly to those who decided to institute the disciplinary proceedings after the matter had been initially dealt with somewhat informally by Ms Cockbain.

12	The Respondent’s answer to all this is that whatever Ms Cockbain’s initial view may have been, management were entirely justified in taking a more serious view.  Ms Cardy had resigned, at least in part as a result of the incident and the abuse emanating from the Appellant.  In these circumstances it was appropriate for the Employment Tribunal to address the question of Ms Cardy’s knowledge, not least because, submits Mr Epstein, it was unclear as to precisely what case of victimisation the Appellant was running before the Employment Tribunal.  

13	We cannot agree with that submission.  We conclude that Ms Cardy’s knowledge of the protected act was indeed irrelevant. We are at a loss to understand why the Employment Tribunal concerned itself with Ms Cardy’s state of knowledge and, ostensibly at least, not at all with Mr Unsworth’s knowledge.  We are not impressed with the Respondent’s submission as to the Appellant’s case having been unclear.  Whilst that might have been a fair comment about the Originating Application, it became apparent once solicitors had become involved and further and better particulars had been supplied, albeit somewhat laconically, that the victimisation claim related to:

“The Respondents action in handling the disciplinary investigation and disciplinary hearing.”

which it was said amounted to victimisation under Section 2:

“ie  the applicant previously brought proceedings against the respondent for race discrimination.”

14	Making every allowance for the somewhat laconic nature of that pleading, it seems to us, that whilst there may have been ambiguities in the presentation of the Appellant’s case before the Employment Tribunal, it was abundantly clear as to what level in the Respondent was being accused of race discrimination by victimisation.  Accordingly, we conclude that the Employment Tribunal did indeed fall into error by attaching apparent significance to Ms Cardy’s state of knowledge.  

15	The next criticism advanced on behalf of the Appellant is that the Employment Tribunal erred by not identifying an appropriate comparator.  The concept of a comparator, of course, goes to the issue of whether or not a person has been less favourably treated.  We are assisted in this area by the decision of the Employment Appeal Tribunal in Lindsay v Alliance and Leicester plc [2000] ICR page 1234.  In giving the judgment of the Employment Appeal Tribunal, Mr Justice Charles said in paragraphs 52 to 54:

“After the decision of the House of Lords in Nagarajan v London Regional Transport [1999] ICR 877 in the House of Lords the single statutory question can be posed in terms that are closer to that set out by Lord Brown-Wilkinson in Glasgow City Council v Zafar [1998] ICR 120, in relation to a claim for direct racial discrimination under section 1(1)(a) of the Race Relations Act 1976, namely: “Has the complainant been less favourably treated than others because he had done a protected act?”
…. it is convenient, and in our judgment generally either essential or important for the purposes of analysis and a proper explanation of the reasons why a claim for discrimination by way of victimisation has succeeded or failed, to split the question into its constituent parts, namely, less favourable treatment, in the circumstances relevant for the purpose of the Act, and protected act and thus the reason for the less favourable treatment or causation.
The first part of the question, less favourable treatment, necessarily involves the making of a comparison and thus the identification of an actual or hypothetical comparator.”

We refer also to a later passage in the judgment at paragraph 75 where it is said:

“All the above approaches involve the identification of the statutory question, and the fact-finding and reasoning which has led to the decision to allow or dismiss a claim for discrimination by way of victimisation by reference thereto.  This is what is needed, and we repeat that generally, to satisfy their duty to give reasons, it will be necessary for an employment tribunal to identify the constituent parts of the statutory question and to deal with them, or to explain why it is not necessary for them to deal with a part of the overall statutory question in answering it.”

16	The submission of Mr Jones is that the Employment Tribunal did not identify a comparator either actual or hypothetical.  He submits that in the circumstances of this case the appropriate comparator would have been a hypothetical black woman who had not done a protected act.  

17	Mr Epstein’s submission is that the reasoning of the Employment Tribunal contains within it the implied identification of such a hypothetical comparator.  He submits that that flows from two passages in the Extended Reasons.  Firstly, in paragraph 1 where the Employment Tribunal states that the Appellant’s allegation is that:

“… because of that matter the Respondents were trying to find fault with her and would not have taken action against her but for the fact of her complaint to the Tribunal.”

and in the later passage:

“Accordingly there is no basis upon which an inference can be drawn that the Respondents treated the Applicant less favourably because she had brought proceedings against them and her claim that she was discriminated against is dismissed.”

Also, to the extent that this aspect of the Appellant’s case contains within it another Meek criticism, the response of Mr Epstein is to say that we should be slow to impose too great a burden on Employment Tribunals in this regard.  He refers to the authorities summarised at paragraph 39 in Lindsay, particularly inviting us to read the words of the decision “benevolently and not as a statute”.  We have no intention of reading without benevolence and we certainly do not seek to comb the words of the Extended Reasons as if we were engaged in a task of statutory interpretation.  

18	Nevertheless, we are unable to accept Mr Epstein’s submission that the Extended Reasons contain an implied identification of a hypothetical comparator such as would satisfy what we understand to be required in the circumstances of this case.  In our view it was incumbent upon the Employment Tribunal expressly to identify the appropriate hypothetical comparator, namely a black woman who had not done a protected act.  We conclude that the Employment Tribunal did not so identify a comparator expressly, nor did it do so by implication.  In those circumstances we identify a further error in the Extended Reasons.

19	Mr Epstein made a further submission to the effect that in the present case it was not necessary for a comparator, actual or hypothetical, to be identified at all.  In support of that submission he relied, in particular, on the judgment of Lord Justice Ward in Balamoody v United Kingdom Central Council for Nursing, Midwifery and Health Visiting [2002]IRLR 288.  Whilst we acknowledge, as did Lord Justice Ward and his colleagues who agreed with him, that he was not saying that in each and every case the Tribunal has to be robustly interventionist and do the task which the applicant is not doing for himself or herself, and whilst we acknowledge the other passages to which Mr Epstein referred, and particularly paragraphs 57 and 61, we conclude that the circumstance of the present case did call for such an identification of a comparator.  It was not forthcoming, expressly or impliedly, and the Employment Tribunal thereby erred.

20	The next criticism advanced by Mr Jones relates to the procedural deficiencies which were identified by the Employment Tribunal when making its finding of unfair dismissal.  Mr Jones’ submission is that those deficiencies were part of the picture for consideration of possible inference drawing in the context of the victimisation claim.  Mr Epstein submits that the procedural deficiencies were in fact considered in the context of victimisation but were found not to justify an inference of discrimination.  As the Employment Tribunal said:

“The investigation was flawed and we have found that the procedure adopted was deficient, but on a balance of probabilities we conclude that this was the product of ineptitude.”

Thus, submits Mr Epstein, consideration was given to the question whether the procedural deficiencies were, or might have been, conditioned by conscious or subconscious discrimination, but such a possibility was rejected.

21	This part of the appeal causes us some unease.  We take the view that the way in which the Employment Tribunal explained itself when rejecting the procedural deficiencies as possible fertile ground for the drawing of inferences fell foul of the Meek test.  We take the view that the Employment Tribunal did not explain itself sufficiently in that regard.  Whether or not it could have rendered that part of the decision valid and ‘Meek proof’ by expressing itself more fully or more carefully, we hesitate to say.  In other words, so far as this part of the appeal is concerned, we take the view that it succeeds as a Meek point but we say no more about it.

22	The final area which Mr Jones seeks to raise for our consideration is whether the decision that there was no discrimination in this case was in fact a perverse decision.  He draws attention to a number of aspects of the case which he says ought to have been treated separately and together and which, he submits, if they had received that treatment would have led inexorably to a finding of discrimination.  In this regard he submits that there was relevance in the lack of any complaint of race discrimination by Ms Cardy, the initial response of Ms Cockbain, the time frame in which these events occurred, having regard to the proximity of the earlier Employment Tribunal hearing, and the other matters to which we have had to concern ourselves when covering the grounds of appeal to which we have already provided our answers.  

23	We do not consider that a case of perversity is made out in the present case.  We have indicated where we consider that the Employment Tribunal erred, we have indicated where we believe that its reasoning processes as articulated were inadequate, but we find ourselves unable to conclude that the decision was a perverse one.  

24	In conclusion therefore we summarise our findings in this way.  By reason of the previous matters considered in the course of this judgment we take the view that this appeal must succeed.  We have considered Mr Jones’ invitation to substitute our own decision on discrimination by way of victimisation for that of the Employment Tribunal but are entirely satisfied that it would be wholly inappropriate for us to do so.  We have not seen any of the parties, and Chairman’s notes, whilst we have the benefit of them, are no substitute.  They are not comprehensive nor would we expect them to be, and we lack the advantage of a live hearing.  Accordingly, our order will be to quash the decision of the Employment Tribunal and to remit the matter for consideration by a differently constituted Tribunal, limited, of course, to the issue of race discrimination, the matter of unfair dismissal having been concluded between the parties.

25	We are concerned about the costs and protraction of these proceedings.  As we have indicated the original hearing took place over two or three days.  This appeal, having originally been listed for a Preliminary Hearing, has now been the subject of a substantive hearing.  If the parties wish for their matter to be resolved by an Employment Tribunal, well then, of course, they have the right that that should take place, but since the outcome of such further hearing can not in our judgement be regarded as inevitable from either side’s point of view, we would encourage the parties to consider the possibility of trying to resolve their remaining dispute by less formal and less expensive means.