Appeal No.UKEAT/0672/05/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 20 February 2006

Before
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
              MR M CLANCY

MR M WORTHINGTON

MR E BROWN	APPELLANT

1) LONDON BOROUGH OF CROYDON	RESPONDENTS
2) MR D JOHNSTON

Transcript of Proceedings

JUDGMENT

		
	APPEARANCES

For the Appellant	MR BECKETT BEDFORD
(Of Counsel)
	
For the Respondent	MR CLIVE SHELDON
(Of Counsel)
Instructed by:
Messrs DMH Stallard Solicitors
40 High Street
Crawley
West Sussex RH10 1BW

SUMMARY
Race Discrimination – direct; interfering discrimination

Claim of race discrimination.  Claimant alleged that the Tribunal were obliged to identify less favourable treatment and then go on to the second stage, if necessary of analysing the reasons why.  Respondent contended that in fact this had been done.  EAT held not always necessary to deal with the two issues of less favourable treatment and reason why sequentially, relying upon dictum of Lord Nicholls in Shamoon.  Other grounds, turning on the facts, rejected.

THE HONOURABLE MR JUSTICE ELIAS

1.	This is an appeal against a unanimous decision of the Employment Tribunal sitting in London (South), in which it held that the Claimant, the Appellant before us, had not suffered any discrimination on grounds of his race or any victimisation discrimination, as a consequence of certain complaints he made.

2.	No distinction has been drawn before us in argument, as between race and victimisation, and we will simply deal with the race issue on the basis that the victimisation arguments will really stand or fall with the race grounds.  

3.	The background is as follows.  The Appellant is black and of West Indian parentage.  He started work for the Respondent, on 2 June 2003, as a Business Advisor, formally titled Business and Finance Officer.  It was a newly created post in the Early Years in Child Care Department of the council.  He worked within a team whose members included a number of women, including, as the Tribunal found, two female members who were black.  

4.	The Appellant was initially on probation for 6 months.  His manager was Mr Johnston, who is the Second Respondent in the Tribunal.  He had to determine whether or not the probationary period should be confirmed.  Certain difficulties arose at the place of work.  At a meeting on 10 July 2003, between certain members of the Senior Management Team (SMT), a Miss Mathieson raised a concern which she had about a conversation with the Claimant which had made her feel uncomfortable.  She reported that another member of staff, a Mrs Green, had reported to her a similar incident.  There were no formal complaints against the Claimant.  

5.	Mr Johnston agreed that he would mention it to the Claimant.  He had a one-to-one meeting with the Claimant on 22 July.  The Claimant was asked about his view of the incident, as alleged by Miss Mathieson, and he responded.  

6.	There was a further SMT meeting on 4 September.  On this occasion there were further concerns, again raised by certain other women, including Mrs Green, a Miss Treacy and Miss Hilderly.  They also said that they felt uncomfortable and vulnerable when speaking to the Claimant.  Mr Johnston’s evidence before the Tribunal, was that this was due to his manner of starting argumentative conversations with people, particularly when they were on their own.  

7.	Again, Mr Johnston thought he should raise these concerns with the Claimant because obviously he was worried about a breakdown in working relationships in his team.  He had a scheduled one-to-one meeting with the Claimant, on 18 September, and raised those concerns again.  Notes of the meeting were taken but after the meeting was concluded.  The notes (which the Tribunal accepted) indicated that Mr Johnston was told that as a newcomer he must make efforts to restore relationships with these women.  

8.	There was a further meeting on 9 October between the two men.  At that meeting the Claimant gave Mr Johnston a letter in which he indicated that he had been confounded to hear of these concerns expressed by these women; he was very hurt by them.  He asked why it was his problem and said that he wanted evidence to support the allegation that he was not a “team player”.  The Claimant was represented by his union representative at that meeting.  

9.	There was a further meeting, on 31 October, when Mr Johnston responded to the Claimant’s letter.  Mr Johnston apparently re-emphasized that he had not accused the Claimant of not being a team player but was raising these concerns to assist the Claimant in carrying out his job effectively.  

10.	At one of these meetings, on 9 October, Mr Johnston told the Claimant that he would be looking to extend his probationary period.  Mr Johnston told the Tribunal, and they expressly stated that they were satisfied with his evidence on this, that he would have treated others in the same way.  He gave reasons as to why he was seeking to extend the period.  One was because of the problems with the working relationships (which we have identified) and also he did not know exactly what the Claimant had been doing in his role as Business Advisor.  

11.	In fact, after discussing the matter with staff in the educational personnel, Mr Johnston was told that there was insufficient evidence to seek an extension and he notified (orally) the Claimant, on 18 December, that he had passed his probationary period.  He did not complete, however, a probationary report because he said he did not have the evidence to do it.  Subsequently he was required to do it, and one was provided, although not until January of 2005.  

12.	Meanwhile, it seems in December 2003 or perhaps January 2004, Miss Treacy told Mr Johnston that she had discovered that the Claimant, (who had been a childminder, and his partner was still a childminder), was on the local authority’s list as being available for childminding.  The list apparently showed that he had vacancies.  Mr Johnston raised this issue at a one-to-one meeting and the Claimant told Mr Johnston he was not childminding anymore.  And that was the end of the matter.  

13.	There was an additional problem in relation to a claim for mileage expenses.  Expenses sheets had to be submitted within 3 months of the expense being incurred and they had to be completed in a particular way.  On 21 January 2004 the Claimant gave Mr Johnston his draft mileage expense form but it was in pencil and it was not in the usual form.    Moreover, the expenses related to periods more than 3 months in the past, that is, from August to November 2003.  Mr Johnston asked whether the Claimant had made them up.  The Claimant gave an explanation as to how the mileage had been calculated, and Mr Johnston accepted that it was correct and told the Claimant that he should submit a final version of the form and the expenses would be authorised.  

14.	In relation to these matters the Claimant made before the Tribunal three distinct allegations of discrimination.  These were, in fact, formulated at a Case Management Conference because the original Original Application was in rather general terms.   In dealing with the complaints, the Tribunal dealt expressly and, in turn, with each of these allegations.  (I should add that there were certain others but they are not the subject of any appeal).  

15.	First, it was alleged that Mr Johnston had acted in a discriminatory manner by telling the Claimant that two members of the staff felt vulnerable when left alone with him and, it was said, that he, Mr Johnston, should have clarified and investigated these allegations before raising them with the Claimant.  Second, it was alleged that there was a discriminatory act by Mr Johnston in seeking to extend the probationary period and also in not providing a written probationary report.  Third, it was said that Mr Johnston had discriminated by falsely accusing the Claimant of working on his own account in the childminding business and further, by falsely accusing the Claimant of dishonesty in the mileage claim on expenses.

16.	The Tribunal dealt with each of these allegations.  They found the facts in relation to each and then they summarised the outcome in the conclusions, which they set out towards the end of their decision.  

17.	In relation to the first allegation, the Tribunal concluded that Mr Johnston was seeking to manage his department properly and that if other staff were having similar difficulties, he would have raised the issue with them, irrespective of their race or colour.  It was a proper management decision, in effect, to seek to ensure good working relations.  

18.	In relation to the second allegation, in fact the specific complaint had been that Mr Johnston had discriminated against the Claimant by seeking to extend the probationary period because “he was not fitting into the team”.  The Tribunal found as a fact that those words were not said, but they then set out the reasons why Mr Johnston was proposing to extend the probation period.  And we have already mentioned what those were.  And, at paragraph 29, the Tribunal concluded in terms that the difficulties in the working relationship between the Claimant and his colleagues caused Mr Johnston to have concerns about the Claimant’s suitability and, in the circumstances, he was entitled to consider whether the probationary period should be extended.  They felt that he had proposed the extension because of the difficulties the Claimant had encountered in the first four months of his employment and that it had nothing to do with race.  

19.	The Claimant had, in fact, in the context of this particular complaint, identified certain specific comparators who he claimed had been treated less favourably.  The Tribunal dealt with those comparators and demonstrated that they were not in similar circumstances.  As to the failure to complete a probationary report, the Tribunal found that precisely the same had occurred in relation to another member of staff who had been through the probationary period.  

20.	In relation to the final allegation of discrimination, the Tribunal found that Mr Johnston quite properly raised the question of childminding activities and mileage expenses with the Claimant.  They said that it was “unfortunate” that he had asked the Claimant if he had made the mileage up but they were satisfied that there was no discrimination on grounds of race.

21.	Mr Bedford, in making his submissions to us, has identified three particular Grounds of Appeal which he says are displayed in his Tribunal decision.  First, he submits that the Tribunal erred in law, in failing specifically to identify where it had found less favourable treatment, and distinguishing that from the reason why the employer might have caused that less favourable treatment.  He submits that it is not possible to tell from this Tribunal decision, in each of these allegations, whether or not the Tribunal found that Mr Brown had been less favourably treated than a white person would have been.  Were the Tribunal finding no less favourable treatment; or were they finding less favourable treatment but accepting that the reason had nothing to do with race?  

22.	We were referred to the well-known case of Igen v Wong [2005] ICR 931.  As that decision makes clear, (and as is set out in paragraphs 9 to 11 of the Annex which set out the guidance for Tribunals in this area), there is a two-stage test.  The first is that the Claimant has to prove facts from which conclusions could be drawn that the employer has treated the claimant less favourably on the ground of race; if that is done then the burden moves to the employer and at this stage, it is for the employer to prove on the balance of probabilities that the treatment was in no sense whatsoever on the grounds of race.  (Igen was a sex discrimination case but the same principles apply in the field of race.)  

23.	Mr Bedford submits that the Tribunal has not made this clear distinction and, as such, has erred in law.  Mr Sheldon, for the Respondent, says that although the Tribunal has not used that language, it is clear that in fact, in relation to the first two allegations in particular, it has concluded both that there was no less favourable treatment, and that in any event, the reason for any treatment had nothing to do with race.

24.	It is not necessary for a Tribunal, in each and every case, specifically to identify the two-stage process.  In many circumstances an employee making a claim of this kind will identify a specific, actual comparator who has been treated less favourably.  In those circumstances it is easy then to see that the burden must switch to the employer.  

25.	In other circumstances, where there is no actual comparator, the employee must rely upon a hypothetical comparator.  Again, in some cases it may be relatively plain to a Tribunal that the burden switches to the employer.  That is likely to occur, for example, where the employer acts in a way which would be quite atypical for employers.  Conversely, if the employer acts in a way which would appear perfectly sensible, and does the kind of thing which most employers would do, then the burden is unlikely to transfer.  For example, if an employer warns an employee for drunkenness at work, and it is not disputed by the employee that he was drunk, it is not likely in those circumstances, in the absence of particular evidence demonstrating otherwise, that that would create an inference of less favourable treatment so as to require some explanation for the employer.  

26.	But often particularly when dealing with the question of hypothetical comparators, it is both difficult, and artificial, to separate out the two limbs of less favourable treatment and the reason why.  This was made clear in the speech of Lord Nicholls of Birkenhead, in Shamoon v Chief Constable of the RUC [2003] ICR 337.  In that case the applicant was a chief inspector who was female.  She complained that on grounds of sex she had been denied the right to complete appraisals for junior staff.  The employers contended the reason she had been denied the right to carry out those appraisals was because there had been various complaints about the way she had done this, and that her male comparators, had not been subject to the same complaint.  Lord Nicholls observed that in the normal case Tribunals will first consider whether the Claimant received less favourable treatment than the appropriate comparator and then go on to consider whether that less favourable treatment was on the relevant proscribed ground.  But he then went on to say this:
“8  No doubt there are cases where it is convenient and helpful to adopt this two step approach to what is essentially a single question: did the claimant, on the proscribed ground, receive less favourable treatment than others? But, especially where the identity of the relevant comparator is a matter of dispute, this sequential analysis may give rise to needless problems.  Sometimes the less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue. The two issues are intertwined.
9  The present case is a good example. The relevant provisions in the Sex Discrimination (Northern Ireland) Order 1976 are in all material respects the same as those in the 1975 Act which, for ease of discussion, I have so far referred to. Chief Inspector Shamoon claimed she was treated less favourably than two male chief inspectors. Unlike her, they retained their counselling responsibilities. Is this comparing like with like? Prima facie it is not. She had been the subject of complaints and of representations by Police Federation representatives, the male chief inspectors had not. This might be the reason why she was treated as she was. This might explain why she was relieved of her responsibilities and they were not. But whether this factual difference between their positions was in truth a material difference is an issue which cannot be resolved without determining why she was treated as she was. It might be that the reason why she was relieved of her counselling responsibilities had nothing to do with the complaints and representations.  If that were so, then a comparison between her and the two male chief inspectors may well be comparing like with like, because in that event the difference between her and her two male colleagues would be an immaterial difference.
10  I must take this a step further. As I have said, prima facie the comparison with the two male chief inspectors is not apt. So be it. Let it be  assumed that, this being so, the most sensible course in practice is to proceed on the footing that the appropriate comparator is a hypothetical comparator: a male chief inspector regarding whose conduct similar complaints and representations had been made. On this footing the less favourable treatment issue is this: was Chief Inspector Shamoon treated less favourably than such a male chief inspector would have been treated? But, here also, the question is incapable of being answered without deciding why Chief Inspector Shamoon was treated as she was. It is impossible to decide whether Chief Inspector Shamoon was treated less favourably than a hypothetical male chief inspector without identifying the ground on which she was treated as she was. Was it grounds of sex? If yes, then she was treated less favourably than a male chief inspector in her position would have been treated. If not, not. Thus, on this footing also, the less favourable treatment issue is incapable of being decided without deciding the reason why issue. And the decision on the reason why issue will also provide the answer to the less favourable treatment issue.
11  This analysis seems to me to point to the conclusion that employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was. Was it on the proscribed ground which is the foundation of the application? That will call for an examination of all the facts of the case. Or was it for some other reason? If the latter, the application fails. If the former, there will be usually be no difficulty in deciding whether the treatment, afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others.”

27.	It follows from Lord Nicholls’ analysis that there will be cases where the two issues are so intertwined that adopting the sequential analysis can give rise to needless problems.  We think that is the case here.  The Tribunal were fully entitled, in circumstances where the facts themselves were not in dispute in any fundamental way, to focus on the reason why.  

28.	We see some force in the observations of Mr Sheldon, that the Tribunal have in fact, particularly in the first two allegations, concluded that there was no less favourable treatment.  But we would accept, as Mr Bedford submitted to us that they have certainly not clearly identified the difference between the two stages.  However, it seems to us, as it seemed to Lord Nicholls, that there is no detriment to an employee in circumstances where the Tribunal focuses on the “reason why” issue.  The burden is then on the employer, of course, whereas the burden is on the employee at the first stage of the two-stage sequential analysis.  But it seems to us that even if the Tribunal reached no conclusion as to whether or not there was less favourable treatment at the first stage, they could perfectly well say to themselves in effect, whether or not this strictly constitutes less favourable treatment, we are satisfied from the evidence that the employer has given that this treatment has nothing to do with reasons with of race.  

29.	In those circumstances they do not need to go through the sequential analysis.  It may simply create undue confusion in their decision to seek to do so.  

30.	Accordingly, we reject the first ground advanced by Mr Bedford.  We see nothing wrong in principle in the Tribunal focusing on the “reason why” issue in a case of this kind.  We do not accept that it meant that the Tribunal did not identify the conduct which the employer had to demonstrate had not been on grounds of race.  That was clear in this case.  It was raising the concerns of the women with the Claimant; it was proposing to extend the probation period and not giving the written probationary report; and it was raising with him the issue of childminding and expenses.  

31.	We turn then to the second Ground of Appeal.  This relates to the Tribunal’s conclusion that there was no discrimination in relation to the third allegation, that is the allegation that raised the issues in relation to childminding and mileage expenses.  

32.	The original Grounds of Appeal suggested that it would not be normal for a manager to put an allegation of moonlighting to a member of staff without first establishing whether there is any basis for it, nor of making his mileage up without some basis for it.  We have not heard, in fact, anything in relation to the “moonlighting” aspect of this matter.  Indeed, Mr Bedford accepted in the course of argument that it was a perfectly proper matter for Mr Johnston to have raised with the Claimant.  The reason for raising the concern over expenses was, as the Tribunal found, that he had, as we have indicated, not filled out the form in the appropriate way or within the appropriate time and, therefore, Mr Johnston, could not understand the basis of the claim being made.  

33.	Mr Bedford emphasizes that the real concern here was the observation made by Mr Johnston, as to “whether he had made them up”.  He says that that was an allegation of dishonesty.  Mr Sheldon, for the Respondents, has indicated that in evidence Mr Johnston was submitting that he had not suggested that they were dishonest but that it looked as if they had been made up retrospectively.  Be that as it may, we accept that it would have been desirable for the Tribunal to have said a little more about that particular matter and what they understood was being alleged.  But it is plain that he was entitled to raise concerns about the expenses and to want a proper explanation as to how they had been incurred given that they were not presented in the way which made that immediately apparent.  

34.	The Tribunal was satisfied that that was not on grounds of race.  They were satisfied that none of the other allegations were on grounds of race and it seems to us that they were quite entitled to reach the conclusion that that particular remark also was not made on the grounds of race.  

35.	So we reject that second Ground.

36.	The third Ground appears to be this.  Mr Bedford submits that the Tribunal erred because when dealing with the first allegation they simply focused upon whether Mr Johnston was entitled to raise the concerns of staff with the Claimant.  But they did not focus on the consequence of that, which was that he was proposing to extend the probationary period, at least if he could.  He identifies the paragraphs where the Tribunal dealt with this first allegation and it is perfectly correct that they do not identify, at that stage, any evidence relating to the extension of the probation period.  

37.	But we think this is, with very great respect, a misconceived complaint.  That complaint is part of the second allegation.  The Tribunal deal expressly at paragraph 29 with the reason why Mr Johnston was considering extending the probationary period.  He could not do it, he was told by personnel staff but that of course does not mean that he was acting on grounds of race.  The Tribunal set out his reasons and they concluded that they were genuine reasons and had nothing to do with race.  

38.	The Tribunal also concluded in relation to the failure to provide a written probationary report that there was another person in relation to whom Mr Johnston had also failed to produce such a report.  Mr Bedford accepts that the evidence there justified the Tribunal concluding that there had been no discrimination on grounds of race.  He says that that finding by the Tribunal informed its conclusion that the Claimant’s suitability for probation was also not on the grounds of race.  Had the Tribunal made that error then we agree with Mr Johnston that it would have been an improper approach.  But we do not accept that.  The Tribunal has quite clearly and, for quite different reasons, been satisfied by the evidence from Mr Johnston that the reason that he had considered extending the probationary period was because his concerns for the Claimant’s suitability for the post, and that had nothing to do with race.  So this ground also fails.

39.	 For these various reasons, and notwithstanding the attractive and persistent way in which Mr Bedford put his arguments to us, we are all satisfied that this appeal should be dismissed.