Appeal No. EAT/1236/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 7 February 2002

Before
HIS HONOUR JUDGE A WILKIE QC
MS S R CORBY
DR D GRIEVES CBE

MR S O WILLIAMS	APPELLANT

HM PRISON SERVICE	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR DEEN TIYAMIYU
Representative	
For the Respondent	MR D TATTON-BROWN
(of Counsel)
Instructed by:
The Treasury Solicitor
Queen Anne's Chambers
28 Broadway
London SW1H 9JS	

HIS HONOUR JUDGE A WILKIE QC

1	This is an appeal by Mr Williams against a Decision of the Employment Tribunal sitting at London Central on 25, 26 and 27 July 2000, which unanimously dismissed Mr Williams’ complaint that he had been discriminated against, contrary to the Race Relations Act 1976, by the Prison Service.  

2	Mr Williams’ complaint was on three bases: the first alleged discrimination when he took part in, but failed, an assessment process at Birmingham Prison on 14 June 1999, with a view to his becoming a Prison Officer.  

3	Secondly, he complained of racial discrimination when, in re-applying for a post as a Prison Officer, this time at Highpoint Prison, in September 1999.  His application was rejected on the ground that he had not satisfied the ‘sift criteria’.  Connected with that second complaint was a further complaint by Mr Williams that the rejection of his application in respect of Highpoint Prison was victimisation, as in the meantime, he had lodged an Originating Application in respect of the Birmingham alleged discrimination, on 18 September 1999, that is to say, before his ‘sift criteria’ rejection.  

4	The Decision of the Tribunal commences with giving a factual overview, describing Mr Williams’ initial joining of the Prison Service at operational support grade, leading through an application he had made in 1998 for the position of Prison Officer at Pentonville Prison, when he had been rejected as not having satisfied the ‘sift criteria’, on the ground that he did not have a recognised qualification.  That rejection was wrong, in that Mr Williams did have a relevant educational qualification, and therefore he should not have been rejected at that stage.

Mr Williams made no complaint that this initial rejection was racially discriminatory in itself, though it was part of the background which the Tribunal was presented with, and which it correctly, in our view, recorded in its Decision.  

5	They then set out, briefly, the events of the 1999 application, and the subsequent application in September 1999.  In paragraphs 5 - 18 of the Decision, the Tribunal addressed the question of the alleged discrimination at the JSAC assessment at Birmingham.  They record the fact that Mr Williams was referring to two other candidates, one a fellow Nigerian, Mr Igoh, and another, Mr Smith, a white candidate.  

6	The Tribunal goes on to record, respectively, what the marks were of Mr Igoh, Mr Smith and Mr Williams in the JSAC test, and refer to evidence of those who conducted the assessments, explaining how those results came about.  In paragraph 16 they record Mr Williams as challenging that procedure as being inherently discriminatory, and summarised his main contentions.  

7	In paragraph 18, the Tribunal make a series of findings of fact, in respect of the JSAC assessment of 14 June, including the following:
“(i)  the assessment of Mr Williams was carried out according to the internal guidelines set out and that overall score sheets show no evidence that he was discriminated against
(ii)  the JSAC system complies with the CRE Code of Practice
(iii)  the proportion of those from ethnic minorities who took and passed JSAC was the same proportion as those of white candidates.”

8	The Tribunal Decision, then in the next few paragraphs, from 19 - 22, refer in some detail to the second, the Highpoint application.  In paragraph 19 they refer to evidence which they took from the person responsible for that particular recruitment campaign, Mr Sutherland, and they record his evidence that he was obliged to follow mandatory rules on recruitment policy and procedures, that all candidates had to meet the minimum ‘sift criteria’:
“ set out in Order 8100 paragraph 4 and paragraph 5.4.6.”
The Tribunal then goes on to set out paragraph 5.4.6:
“Candidates who fail to meet the standard at JSAC are unlikely to do so without further life experience or coaching/training in interpersonal skills.  Accordingly, candidates must be advised not to apply again for at least 12 months.”

9	They record that Mr Williams complained that he had not been advised in June 1999 that he should not re-apply for a further twelve months.  He also complained that a white female colleague, Miss Cadoza, had been allowed to reapply within that twelve month period.  The Tribunal go on in paragraph 21 to record that there was no evidence presented to them to support his allegation in respect of Miss Cadoza, and further, there was evidence in a document placed before the Tribunal, that Mr Williams received a letter from the Prison Service in July 1999, informing him of the twelve month rule.  In paragraph 22, the Tribunal made their findings of fact in respect of this aspect of the case, and they say this:
“Although the Tribunal heard evidence as to the possible ambiguity of paragraph 5.4.6 our finding is that on any interpretation Mr Williams would have been unable to reapply as early as September 1999.”

10	The Tribunal then goes on to deal with the Law, and in paragraph 23 they refer to the relevant laws, set out in the Race Relations Act 1976 sections 1, 2, and 4; refer to some case law and state that they have followed the guidelines and:
“ considered the evidence firstly, as to whether Mr Williams was treated less favourably than other employees and secondly if the treatment was less favourable was it on the grounds of his race.”

They indicate that they had also taken account of the dicta to the effect that they should not make separate decisions on each allegation but should look at the overall picture.  

11	In paragraph 26, they record that Mr Williams had brought forward examples of white employees whom he claimed had been treated differently from himself.  First of all they refer to a claim in respect of Mr Smith, to the effect that he did not have the minimum educational requirements which would have seen him through the ‘sift criteria’.  The Tribunal concludes, as a matter of fact, that Mr Williams has been unable to demonstrate that Mr Smith did not meet the standards required, and relied on written evidence to the effect that Mr Smith had completed work for an NVQ, but that at the relevant time his portfolio had been forwarded to the awarding body for accreditation, so no certificate had been issued.  In the subsequent two subparagraphs of paragraph 26, the Tribunal then addressed other direct comparators, alleged by Mr Williams, namely Miss Cabble and Miss Cadoza.  They concluded that neither of these cases demonstrated any less favourable treatment, as between Mr Williams and the particular comparators.  

12	In paragraph 28 the Tribunal sets out its conclusions.  They state that they have considered the specific allegations made by Mr Williams and have placed them within the context of an admittedly predominately white employer.  They say they have
“ come to the conclusion that there is no evidence that in JSAC process or the Highpoint recruitment was Mr Williams treated any differently from his white colleagues. “

They go on to say that it is therefore not possible to make any findings that any of the treatment was discriminatory, on the grounds of his race. They go on to say that:
“In addition there is no evidence that the rejection of Mr Williams Highpoint application was on account of his having started Tribunal proceedings in respect of the JSAC complaint.”

13	Mr Tiyamiyu, for Mr Williams, has addressed us on the basis of the amended Grounds of Appeal and on the basis of his helpful Skeleton Argument.  Essentially, his complaint is that the Tribunal has failed to ask itself the relevant statutory questions, and as a result of that, it has failed to come to any proper conclusions, in respect of each of the claims made by Mr Williams.  He has reminded us of the authorities which set out the standards required of Tribunals in stating their Reasons.  He has reminded us of the general rule which is established in the case of Meek -v- City of Birmingham District Council, and in particular, he has reminded us of the specific requirements where a complaint is made of racial discrimination, and even more so, where the complaint is one of victimisation.  He has referred us to the unreported Decision of the EAT in the case of The London Borough of Hackney and Another -v- Fashola heard on 12 January 1996, and in particular the passage at 7D - 8F.  He has, in addition, referred us to the Decision of the EAT in the case of Lindsay -v- Alliance & Leicester PLC [2000] ICR 1234.  He has referred us to a number of passages in the judgment, but it seems to us that the essential ones are those which set out the requirements in such cases for Tribunals to give reasons.  In particular, paragraph 45 states:
“It follows that we have to consider on a benevolent approach to the extent of reasons whether (i) the employment tribunal asked themselves the wrong question, and further or alternatively, (ii) whether the extended reasons make it sufficiently clear that the employment tribunal posed themselves and answered, the correct statutory question, and in doing so give a sufficient account of their findings of fact and reasoning to enable us to identify why the respondent employer won and the applicant lost.  
…….
50  Thus we have to consider whether the employment tribunal posed and answered the statutory question posed by section 2 of the Race Relations Act 1976 and thus, for example, we have to consider: whether the employment tribunal decided that there was less favourable treatment, and what the approach and conclusion of the employment tribunal was on the issue of causation.”

14	As far as the victimisation claim is concerned, what Mr Williams argues is that the Decision of the Tribunal failed to focus on the core of Mr Williams’ case.  His case was that he satisfied the ‘sift criteria’.  He should therefore have been admitted to the assessment part of the process.  The letter rejecting his application referred specifically to his failure to meet the ‘sift criteria’ for prison officers.  His complaint, therefore, was that he had been treated less favourably by being denied access to that assessment process when he manifestly satisfied the criteria, and that, therefore, the Tribunal should have asked itself the question whether he did have less favourable treatment, and should then have gone on to consider the adequacy of the explanation and to draw any inferences from any conclusion that they might come to as to the inadequacy of that explanation.  

15	It seems to us that both as a matter of form, and as a matter of substance, the Decision of the Tribunal does demonstrate that it addressed the right questions, and does not reveal any error of law, or inadequacy in the reasoning process.  It is clear that the Tribunal was in receipt of evidence which it accepted that the Prison Service acted on the footing that the paragraph 5.4.6 twelve month rule formed part of the ‘sift criteria’  Furthermore, the Tribunal concluded, as a matter of fact, that however one characterised the position of 5.4.6, Mr Williams would not have been able to apply within the twelve month period, and in that respect, whether generally or whether by reference to the individual comparators referred to by Mr Williams, he was not treated less favourably in this respect.  It therefore followed that there was no question of the Tribunal considering whether an inference might be drawn, because that stage was not reached.  It seems to us that if one looks at the substance of the matter, without any great effort or delving, it manifested that this was the process of reasoning which led the Tribunal to reject the claim, insofar as it was based on the Highpoint application, and in particular, to reject the victimisation claim.  

16	As far as the claim of direct discrimination under section 1 is concerned, the complaint of the Tribunal’s Decision is that is does not pose, specifically, the relevant questions and that by failing to do so, the Tribunal have fallen into error, in failing to consider as a comparison exercise, the position of a hypothetical comparator.  Indeed, the contention of Mr Williams is to the effect that even if there is an actual comparator, the treatment of whom can be compared with that of the Applicant, there is, in addition, always a duty upon a Tribunal to construct a hypothetical comparator.  In this case, Mr Tatton-Brown, for the Respondent, conceded that Mr Williams’ case had been presented on the basis of an actual comparator, namely Mr Smith, in respect of the Birmingham assessment.  He states that by virtue of the detailed consideration of Mr Smith’s performance in that assessment, compared with that of Mr Williams, this Tribunal have, in paragraph 18, by their findings, come to a specific conclusion that Mr Williams did not suffer less favourable treatment than Mr Smith, and that this finding is further reflected in the sentence in paragraph 28 to which we have already referred.  

17	Therefore, on the face of it, he accepts that this Tribunal, in its process of reasoning, did not have regard to any hypothetical comparator.  Mr Tiyamiyu, in support of his argument that there is an obligation in every case to look at, or construct, a hypothetical comparator, relies on a number of passages in the authorities to which I have already referred, and in particular, in the Lindsay case and in the London Borough of Hackney -v- Fashola case, as well as to paragraph 15 and 16 of the Employment Appeal Tribunal Decision in the unreported case of Jarman and London Borough of Hackney -v- Stenning.  

18	In each of these cases, however, it seems clear to us that the requirement is to look at the hypothetical comparator as an alternative to looking at a real comparator, such that if there is a real true comparator, with whom a comparison may be made, then if the Tribunal makes that comparison, it is not obliged then to construct a hypothetical comparator.  The logic of that seems to us clear because the comparator, actually cited, is a true one, and it is hard to see how any sensible construction of a hypothetical comparator could lead to any different result than arose from the comparisons with the true comparator.  

19	Mr Tiyamiyu sought to support his argument by reference to a truncated account of a decision in the Court of Appeal on 6 December last, in the case of Balamoody -v- United Kingdom Central Council for Nursing Midwifery and Health Visiting.  That was a case in which an Employment Tribunal had held a preliminary hearing to decide whether the claim of discrimination and victimisation should be struck out as frivolous or vexatious.  The Chairman of the Tribunal had held that the matron of the home, put forward as a comparator by the applicant, was not a true comparator, nor were the nurses in the other cases relied on by the appellant.  On that basis the Employment Tribunal Chairman held that in the absence of any true comparators, no prima facie case of racial discrimination had been made out, and therefore, the case was dismissed at that stage as being frivolous and that it had no prospect of success.  

20	The Employment Appeal Tribunal had upheld that Chairman’s decision, but the Court of Appeal overturned both of those decisions.  The summary of the holding by the Court of Appeal records that it was incumbent on the Chairman, where there was no true comparator, and on the particular facts of the case, to construct a hypothetical comparator, and test the claim against that benchmark.  She should have considered whether it was at least arguable that the appellant had been treated differently from the way in which a hypothetical comparator would have been treated, and if so therefore, whether it was discriminatory.  

21	In our judgment, that may well be a correct analysis, where there is no true comparator, but it does not assist in supporting Mr Tiyamiyu’s contention that where there is a true comparator, there is a further duty to construct a hypothetical comparator.  We reject that submission.  It is argued on behalf of Mr Williams that the way that the Tribunal dealt with Mr Smith, in connection with his educational qualifications, or lack of it, demonstrates that they were not treating Mr Smith as a true comparator, and therefore, it may be that the argument goes that there was therefore no true comparator, so as to give further support to the contention that a hypothetical comparator should have been constructed.  

22	Mr Tatton Brown has argued before us, and we accept his submission, that what the Tribunal was doing in paragraph 26.1 was dealing with an argument, which is presented by Mr Williams, as part and parcel of the factual matrix from which, if a finding of less favourable treatment has been made, an inference adverse to the Respondent, at first instance, might have been drawn.  He contended, and we think that this is right, that Mr Smith was being put forward as a true comparator, insofar as it was his performance at the JSAC assessment exercise which was being looked at in comparison with that of Mr Williams, and that the Tribunal had manifestly accepted his example as a true comparison, and had dealt with that as a matter of substance.  

23	It seems to us, therefore, that although this Tribunal did not expressly refer to the precise terms of section 1 or section 2, their reasoning is manifestly transparent.  It is clear what were the thought processes through which it went; it made findings of fact which were open to it on the evidence, and they came to conclusions on the questions which they ought to have addressed themselves, and expressed them in paragraph 28 of the Decision in a way which informed the reader why Mr Williams did not succeed in his claims.  

24	We may, in addition, make this observation.  Assuming for the moment that we were wrong, and that there is an obligation on the Tribunals to construct a hypothetical comparator, even where there is a true comparator being relied on, it seems to us that the way in which the Tribunal has explained itself, in paragraph 18 of its Decision, satisfies that requirement.  They concluded that Mr Williams’ assessment was carried out in accordance with the internal guidelines, that that system complied with the CRE Code of Practice and that, in fact, looking at the global picture, the proportion of those from ethnic minorities who took and passed JSAC, was the same as those of white candidates.  Those findings would be well capable of supporting a conclusion that, taking a hypothetical comparator, Mr Williams did not suffer less favourable treatment.  Therefore, in substance, the Tribunal Decision revealed a process of reasoning which would have satisfied that requirement.  That may well have been over and above what they were required to do, but in our judgment, they did so.  

25	It therefore follows that, notwithstanding the very firm and able submissions which have been presented to us, both in writing and orally, we reject the appeal of Mr Williams on the grounds which he has advanced, and therefore this appeal must be dismissed.