Appeal No. UKEAT/0138/04/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 September 2004

Before
HIS HONOUR JUDGE PROPHET
MR B BEYNON
MR B M WARMAN

MOORFIELDS EYE HOSPITAL NHS TRUST	APPELLANT

MS C CALLISTE	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR D BASU
(Of Counsel)
Instructed by:
Messrs Bircham Dyson Bell
Solicitors
50 Broadway
London
SW1H OBL	
For the Respondent	NEITHER PRESENT NOR REPRESENTED	

SUMMARY

Employment Tribunal found race discrimination in the handling of an internal guidance.  Error of law in their approach, having regard to Glasgow City Council v Zafar [1998] IRLR 36.  Appeal allowed and remitted for rehearing before a differently constituted Employment Tribunal.

HIS HONOUR JUDGE PROPHET

1.	On 19 December 2002, Ms Calliste who was working as a medical secretary at St Georges Hospital, Tooting presented a complaint to the Employment Tribunal at London South.  She indicated in her application that her representative was a Mr Lewis.  He had prepared on her behalf a letter dated 14 December 2002 to accompany the application and which set out the details of her complaint.

2.	That made it apparent that although Ms Calliste’s complaints against her employer were described in both the application and that letter as:

“racism, harassment, bullying and victimisation”
Her complaints were being made under the Race Relations Act 1976.

3.	Those centred on her alleged treatment by her manager, Ms Carter and of the alleged failure by her employer to deal properly with her internal complaints and grievances against that treatment.  The employers’ defence, subsequently amended following a direction by a Chairman of the London South Employment Tribunal, was to resist the complaint and to deny that there had been any race discrimination against Ms Calliste.

4.	The case duly came up for hearing before an Employment Tribunal sitting at Croydon, with Mr Self as the Chairman and Mr Callingham and Ms Foster Norman as the lay members.  It occupied the Tribunal over three days in September 2003.  Ms Calliste represented herself at the Tribunal and the employer was represented by Mr Catherwood of Counsel.

5.	The outcome of the case in a decision with Extended Reasons promulgated on 5 November 2003 was that the employers had discriminated against Ms Calliste on the grounds of her race and an award was made of £5,000 plus interest.  

6.	Most of the case was taken up with issues relating to Ms Calliste’s alleged treatment by Ms Carter.  The employers had accepted at a Directions Hearing on 3 April 2003 that if the Employment Tribunal found there was any race discrimination by Ms Carter they would accept liability for it.  However, the Extended Reasons indicate that albeit in some respects by a majority the Tribunal could find no race discrimination by Ms Carter.and therefore no liability fell upon the employer in that respect.

7.	The Tribunal’s finding of race discrimination by the employer was in respect only of the manner in which the employer handled her internal grievance related to her complaints of her treatment by against Ms Carter.  Paragraphs 23, 24 and 25 of the Extended Reasons set out the Tribunal’s reasoning in respect of their finding of race discrimination:

“23.   The final part of the Applicant’s claim was that the manner in which the Respondent handled her grievance was discriminatory on the grounds of her race.  The Tribunal unanimously finds that the failings of the respondent in this area were lamentable.  The allegations levelled against the Trust were very serious being a complaint of race discrimination against a manager of a multi cultural work force.  It should have been dealt with under the harassment procedure as opposed to the grievance notwithstanding the title given to it by the Applicant.  Although the Tribunal accepts that time was lost through the timing of the takeover of the service it is plain that the Respondent did not wish to deal with the issue although there was a risk that they were using the services of a racially discriminatory manager.  We find that this attitude demonstrates a reluctance on the part of senior management to act in a manner commensurate with the seriousness of the complaint.

24.   Een when the complaint was taken on by the respondent it was given to a member of the Human Resources team who had little or no experience in diversity issues and certainly no training in the same.  This inexperience was demonstrated in Miss Bridle’s wholesale failure to investigate the complaint properly.  She interviewed no other staff, failed to compare letters or sickness records all of which would have assisted her in understanding whether there was any basis for the claim that the treatment meted out was race related or indeed even amounted to less favourable treatment.  She was in a position to conduct a full review into serious allegations and failed completely.

25.   The Applicant herself did not believe that Ms Bridle’s inaction was a product of any conscious discriminatory thoughts.  We find that Ms Bridle was given very little assistance from above.  The net result is that the chance of a full and timeous review of the allegations has been lost and that the same amounts to a detriment to the Applicant who was let down badly.  The overriding impression that we are left with is of an organisation reluctant to act in the first place; who failed to classify the allegations correctly and then failed to investigate adequately.  It did not seem to us that there was any evidence at all, notwithstanding the Equal Opportunities policy, to show that matters of race were taken seriously by the Respondent.  In those circumstances we are quite sure that that failing by the respondent amounts to less favourable treatment and we are unanimous in inferring that the treatment was on racial grounds.  We do not accept or believe that Human Resources would have carried out as shoddy a job on either other grievances or an investigation into other non race related conduct matters.”

8.	The Notice of Appeal by the employers is dated 16 December 2003 and the grounds of that appeal were drafted by Mr Catherwood.  Included in that notice was an application to refer at the appeal to the evidence given by Ms Calliste, and by Denise Bridle and Ken Gold on behalf of the employer in so far as that evidence related to the investigation and hearing of the grievance.

9.	The Employment Appeal Tribunal held a Preliminary Hearing of the appeal on 5 May 2004 in accordance with an Order made by His Honour Judge Wilkie on 6 February 2004.  At that Preliminary Hearing the appeal was set down for a Full Hearing and arrangements were made for the notes of evidence requested by Mr Catherwood to be made available for the Full Hearing.  

10.	We have convened today to conduct that Full Hearing.  Unfortunately Mr Catherwood is indisposed and Mr Basu of Counsel has taken his place.  Ms Calliste has written to us a letter dated 19 July 2004 indicating that she could not attend today due to a medical appointment.  She did not seek an adjournment of these proceedings but clearly envisaged our taking a decision on the appeal in her absence.

11.	The thrust of Mr Basu’s submission is are that the Employment Tribunal erred in law in its approach to determining whether there was race discrimination by the employer in respect of the handling of Ms Calliste’s grievance against Ms Carter.  He says that the Tribunal applied the wrong test.  It was not sufficient for the Employment Tribunal to move from its obvious disapproval of the employer’s handling of the grievance process to a finding of race discrimination without explaining why it rejected evidence from the employer’s witnesses as to the alleged short comings in that handling process.

12.	We have no doubt that had Ms Calliste been here she would have relied heavily on what is undoubtedly true as a generalisation, ie that race discrimination is notoriously difficult to prove and an Employment Tribunal is entitled to find race discrimination by drawing inferences.

13.	For Ms Calliste to establish race discrimination in respect of the way her grievance was handled, there had to be a finding by the Employment Tribunal that she had in that respect been treated less favourably than a person of a different race in essentially similar circumstances would have been treated and that that less favourable treatment was on the grounds of her race.  She would further have to show that through such treatment she had been subject to a detriment.

14.	We agree with Mr Basu that it is not possible to discern from the Employment Tribunal’s reasons set out in paragraph 7 above that it approached the complaint relating to the handling of the grievance on that basis.  There is no mention by the Employment Tribunal of whether it would have been helpful to them to construct a hypothetical comparator ie a person of a different race in similar circumstances in the absence of a named comparator.  By indicating that the Employment Tribunal felt that Human Resources would not have carried out as shoddy a job with other grievances or investigations into other non race related matters there is considerable danger that the Employment Tribunal was moving directly from finding unfair or unreasonable treatment by an employer to a finding of race discrimination, without giving sufficient attention to the warnings of so doing contained in Glasgow City Council v Zafar [1998] IRLR 36.  

15.	Finally and very important, there is insufficient indication or findings of fact by the Employment Tribunal in respect of the employers’ non racial explanations for any short comings alleged against them in the handling of the grievance and why those explanations were rejected.

16.	Accordingly, we have unanimously decided that this appeal against the finding of race discrimination arising from the handling of the grievance should be allowed, and that that matter be remitted for reconsideration by a differently constituted Employment Tribunal.