No: A1 2000 3346

Neutral Citation Number: [2001] EWCA Civ 771
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(MR RECORDER BRIAN LANGSTAFF QC)         

  Royal Courts of Justice
                                    Strand
                                    London WC2

Friday, 11th May 2001
B e f o r e :

LORD JUSTICE MUMMERY

- - - - - - - - - - - -

MRS BOLOJI GARRY

APPELLANT/APPLICANT
‑ v ‑

LONDON BOROUGH OF EALING

RESPONDENT
- - - - - - - - - - - -
(Computer Aided Transcript of the Stenograph Notes  of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HG
Telephone No: 0171‑421 4040/0171‑404 1400
Fax No: 0171‑831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - -

MR C HUTCHINSON (instructed by Messrs Liberty, London E2 8AU) appeared on behalf of the Applicant.
THE RESPONDENT did not appear and was not represented.

- - - - - - - - - - - -

J U D G M E N T

JUDGMENT
1.	LORD JUSTICE MUMMERY: This is an application for permission to appeal and for an extension of time in which to appeal. At a late stage in the application a Mr Hutchinson was instructed to appear for the applicant, Mrs Garry. He helpfully handed to the court just before the hearing, a skeleton argument, summarising the main point on which it is submitted that Mrs Garry has a real prospect of succeeding on her appeal.
2.	The background to the case is that Mrs Garry brought a claim in the Employment Tribunal for unfair dismissal and for race discrimination. The claims arise out of the circumstances in which her employment as a housing benefits manager came to an end. She had been employed in that position by the London Borough of Ealing, the proposed respondents to the appeal. She started to work for them at the beginning of September 1991. In November 1996, investigations were begun into her activities. I should mention at this stage that Mrs Garry is of Nigerian origin.
3.	Those investigations were considered by the head of the housing investigations team, Mr Bailey, to warrant the investigation of a special investigator, Mr Ravinder Singh. The investigation was prompted to some extent by the fact that Mrs Garry had been previously employed by another London borough where she had been subject to investigations.
4.	The investigations resulted in a provisional report on 10th March 1997 and a final report on 4th August 1997. Having considered those reports Mr Dallison, the Director of Regeneration and Housing for London Borough of Ealing, decided not to take disciplinary action. Despite that, the fact found by the Employment Tribunal in their extended reasons sent to the parties on 14th May 1999 was that the investigation continued. The findings of fact in relation to that are set out paragraph 30 of the extended reasons. It is said that not only was Mrs Garry not told of Mr Dallison's decision, but also the investigation continued. No one appears to have taken responsibility for it. Mr Hibberd, who gave evidence, said that he conducted investigations only at the request of Mr Singh. Mr Bailey's evidence was that it was a joint investigation between Mr Hibberd and Mr Singh, but Mr Singh had control.
5.	The Tribunal went on to say that there appears to have been no one who questioned the purpose of continuing the investigation. It was on that basis that the Tribunal went on to conclude that, although Mrs Garry's claim for unfair dismissal failed and although her allegations of race discrimination in resepct of the commencement of the investigation and the failure of Mr Dallison to inform her of the outcome failed, she did succeed in establishing race discrimination in respect of the continuance of the investigation.
6.	The summary of the Tribunal's conclusion on this matter is at paragraph 36(1) where this is said:
“The Applicant was the subject of discrimination on the
grounds of her ethnic origin because the investigation that was commenced into her circumstances continued way beyond a date where it should reasonably have been concluded” 
7.	Their reason was that it had continued beyond a time when it would have done for someone who was not Nigerian. That appears also from paragraph 30 of the extended reasons.
8.	Mr Hutchinson's submission is that the Tribunal arrived at the finding of discrimination without any error of law. Therefore it was wrong of the Employment Appeal Tribunal, which heard the appeal by the London Borough of Ealing against that decision, to allow the appeal. The grounds on which the appeal was allowed by the Appeal Tribunal are contained in the judgment of the Tribunal given on 9th October last year by Mr Recorder Langstaff QC on behalf of the Tribunal. The crucial part of the Appeal Tribunal's reasoning for allowing the Council's appeal and dismissing Mrs Garry's action for race discrimination is contained in paragraphs 31 and 34. The reasoning of the Appeal Tribunal was that it appeared that Mrs Garry was lacking awareness of the continuance of the investigation and that did not, in their view, constitute “detriment” for the purposes of Section 4 of the Race Discrimination Act 1976. The Tribunal said in paragraph 31:
“We consider that it must be difficult in any case to say, as the tribunal appear to have said, that the lack of awareness of steps being taken might (but do not in the event) result in disadvantage can be said to be itself a detriment or disadvantage.. The adage, 'ignorance is bliss' is realistic in such a case. As one
of the members of the tribunal observed in the course of argument, if a tax payer is aware that the Inland Revenue has begun an investigation into his affairs, he might well be seriously worried. If, however, he learns after the event that they have conducted such an investigation, but it has led to no charge or penalty, he would in the event be very much less concerned, and possibly even relieved”. 
9.	The Tribunal went on to deal with the question of the continuance of the investigation in paragraphs 32 and 33. In paragraph 34 they said this:
“We are conscious that the question of whether or not certain treatment is less favourable within the meaning of section 1 of the 1976 Act, and the question whether, if it is less favourable, it constitutes a detriment that did not within the employment context, are ultimately questions of fact. We cannot interfere with a finding of fact unless there is no reasonable basis upon which the Employment Tribunal could reach the conclusion it did. However, try as we can, we can find no reasonable basis for thinking that there was in the circumstances as found by the Employment Tribunal anything that could realistically be described as a detriment to her arising out of her lack of awareness and continuation of the investigation. This is so even if we were to assume that the continuing investigation, minimal as it was, amounted to less favourable treatment on the grounds of race because of its genesis as described by the Employment Tribunal” 
10.	Paragraph 38 the Appeal Tribunal explained why in the light of their decision they had decided not to remit the matter to the Employment Tribunal but to reverse its finding in respect of detriment and to dismiss the claim.
11.	In my judgment, Mrs Garry does have a real prospect of persuading the full court on the hearing of an appeal that the Appeal Tribunal were not, for the reasons which they gave, entitled to interfere with what they themselves accepted was essentially a question of fact for the Employment Tribunal.
12.	Mr Hutchinson submits that the Appeal Tribunal's analysis of the situation was legally flawed. He submitted that, on the facts found by the Employment Tribunal, Mrs Garry had been treated less favourably on the grounds of her race and on the grounds of discrimination and detriment. It was irrelevant whether or not she knew of the continuation of the investigation. He went on to submit that less favourable treatment itself on the grounds of race was detriment and referred to the test laid down in D'Souza v. The Automobile Association [1986] ICR 514. In brief, he contends that where there is less favourable treatment on the grounds of race, as found by the Employment Tribunal, Mrs Garry was entitled to succeed on her claim of race discrimination and that issues of knowledge at any particular time might be relevant to the question of the quantum of compensation, but were not relevant to the determination of whether or not there was established race discrimination. In my judgment, these arguments warrant full development and consideration by the full court. I would grant permission to appeal.
13.	I should add that this does not mean that the appeal will necessarily succeed. Mrs Garry should be aware that in this court, if an appeal does not succeed, there may be different consequences as to costs than there are in the Employment Tribunal and the Employment Appeal Tribunal, where the normal rule is that no costs are ordered whatever the outcome of the case. In this court the normal rule is that, if an appeal fails, then the person who has been successful is entitled to an order for costs against the unsuccessful appellant. Thank you for your help, Mr Hutchinson. For the reasons I have given permission granted.
Application granted; costs in the appeal.