Appeal No. EAT/234/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 7 November 1994

	Before

	THE HONOURABLE MR JUSTICE MUMMERY (PRESIDENT)

	MISS C HOLROYD

	MRS P TURNER OBE

LAURENS MANOR NURSING HOME	APPELLANTS

MRS M MITCHELL	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR P OLDHAM
(OF COUNSEL)
Newbald Kay
26 Lendal
York YO1 2AG

For the Respondent	MR E M ALEXANDER
(OF COUNSEL)
Makenda & Co
Paul Anthony House
724 Holloway Road
London N19 3JD

	MR JUSTICE MUMMERY (PRESIDENT):  This appeal is from the Industrial Tribunal held at Leeds on 15 January 1994.  The Tribunal heard a complaint of racial discrimination made by Mrs M Mitchell against her former employers, Laurens Manor Nursing Home, a partnership involving a Mr and Mrs Tait and a Mrs E A Walls in carrying on the business of a nursing home.

	The Tribunal unanimously decided that the nursing home had discriminated against her on racial grounds in contravention of section 4(2) of the Race Relations Act 1976 and the nursing home was ordered to pay her the sum of £3,387.32.  The full reasons for that decision were sent to the parties on 29 January 1993.  The nursing home was dissatisfied with the decision and appealed by Notice of Appeal dated 9 March 1993.

	The background to the case is that Mrs Mitchell is a state enroled nurse.  She has been in nursing for about 20 years.  She went to work for the nursing home from early November 1991 down to the middle of March 1992.  The work she did there was satisfactory.  She worked on a daily shift from 12.30 to 9 pm.  The set up at the nursing home was that a Mrs Rowe was the matron.  There were two deputy matrons, Mr Ridsill and Ms Dunn.  They were responsible for the staff of qualified nurses and care assistants.  There was no clear chain of command below the two deputy matrons.

	The events which led up to these proceedings started 15 March 1992 when one of the elderly patients, Mr Faulkner, who was partially paralysed, was scalded by hot ovaltine.  Mrs Mitchell was blamed for the incident and given a verbal warning.  Two days later a new nurse joined the staff, Mrs Williams, a state registered nurse.  Shortly after her arrival there were disagreements between her and Mrs Mitchell about the medication of a patient.  That disagreement occurred on 18 March.  There was a good deal of acrimony in the disagreement between them.  There was a clash of personalities.

	The incident led to a complaint to the matron.  A meeting took place on 20 March attended by Mrs Mitchell, Mrs Rowe and Mrs Walls.  Nothing was said at the meeting about a dismissal of Mrs Mitchell, but there was an emotional outburst by Mrs Mitchell in which threatening words were used by her in relation to Mrs Williams.  Two days later on 22 March, Mrs Mitchell was dismissed.  That is a broad outline of the relevant events.  We will refer to details of the evidence where relevant. 

	The letter of dismissal was sent by Mr Tait and reads as follows:

		"In view of the threats and comments you made to Mrs S Rowe (MATRON) and Mrs E A Walls (Co OWNER) on Friday 20th March 1992, and also taking into consideration the events that took place on Sunday evening 15th March 1992, I have no alternative but to dismiss you immediately on the grounds of gross misconduct.  I have a duty to safeguard the welfare of our residents, and also the staff.

		Please return all company property, uniforms locker key etc, any monies due to you, can be collected on Friday 27th March 1992".

	Mrs Mitchell was not entitled to bring any claim for unfair dismissal, because she was not able to satisfy the two year qualifying period.  She presented her Originating Application to the Industrial Tribunal on 28 May 1992 in which her complaint was stated to be race discrimination.  In her complaint she set out details of her starting work at the nursing home, the shift she worked, the fact that there were no complaints about her work and that she was congratulated by patients and staff on her efforts for them.  She gave her account of the events which took place between 15 and 22 March and concluded:

		"I think I have been discriminated against because of my race and colour.  I seek a declaration to that effect and I ask for compensation."

Although the fact is not stated in the complaint the ethnic origins of Mrs Mitchell are that she was born in the West Indies in 1944 of Spanish and Portuguese parents.

	The Originating Application, beyond stating that complaint and the summary of the events over that week in March, does not give further details of what was alleged to have constituted race discrimination.  The claim was contested by the nursing home in the Notice of Appearance dated 4 June 1992.  They stated that the reason for Mrs Mitchell's dismissal was gross misconduct in the form of threatening behaviour.  It was pointed out that Mrs Mitchell had received a verbal warning for what is described as "unprofessional conduct" relating to the incident of the scalding of the patient on 15 March 1992.

	That was the issue before the Industrial Tribunal.  The Tribunal considered the facts of the case in detail and came to these conclusions.  First, as regards the incident of Mr Faulkner on 15 March, they referred to the decision of Mr Tait that a verbal warning should be given to Mrs Mitchell on the basis that, in the view of the management who were notified of the position by Mrs Rowe, Mrs Mitchell was to be blamed for what had happened.  They said that, before that warning was administered, Mrs Pauline Williams, the new nurse, joined the staff.  Details were set out of the disagreement between Mrs Mitchell and Mrs Williams on 18 March.  They referred to the meeting which took place on 20 March and gave details of the evidence that Mrs Mitchell was very upset when she was given the verbal warning relating to the events of 15 March.  

	The Tribunal said this: (paragraph 7)

		"We are satisfied that she [Mrs Mitchell] expressed herself with some degree of vehemence and said among other things that she would hang, or kill Mrs Williams and furthermore, that she would not work with her or take orders from her.  We are satisfied that this represented an emotional outburst rather than a purposeful threat to do anything criminal or unlawful.  There was a long conversation as to which none of the 3 witnesses have been able to give a very coherent account but ultimately the applicant was asked if she would like to go home but said she would not and went back and completed her duties for that day.  Nothing was said to her on that occasion concerning the possibility of dismissal or any further disciplinary action."

	On the next day Mrs Rowe prepared a written confirmation of warning relating to the incident of 15 March. Mrs Rowe also reported back to Mr Tait, telling him about the conversation that she had had with Mrs Mitchell.  She was concerned that she felt some considerable anxiety as to the relationship between Mrs Mitchell and Mrs Williams and their apparent inability to work together.  She had not come to the conclusion that the behaviour of Mrs Mitchell was such that there was no alternative course to dismissal, but Mr Tait did decide to dismiss and he sent the letter quoted.  The Tribunal observed that Mr Tait, who conducted the case of the nursing home in the Tribunal, did not give evidence, but Mr Tait informed the Tribunal that his reasons for dismissing Mrs Mitchell were those contained in the letter of 22 March.  

	Having found those facts the Tribunal had to look at the relevant law and decide what conclusion they would reach by applying it to the facts.  The Tribunal referred to section 1, 3 and 4 of the 1976 Act.  The complaint was of direct discrimination.  The relevant section 1(1)(a) provides that:

		"A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if

			a) On racial grounds he treats that other less favourably than he treats or would treat other persons."

The Tribunal, in referring to section 3, quoted the definition of "Racial grounds".  That does not present any particular problem in this case.  The Tribunal did not refer to the important provision in section 3(4).  That provides:

		"A comparison of the case of a person of a particular racial group with that of a person not of that group under section 1(1) [and that is the section directly in point in this case] must be such that the relevant circumstances in the one case are the same or not materially different, from the other."

The Tribunal quoted section 4(2) which relates to discrimination against employees.  No particular point arises on that.  No authorities were cited.  

	The Tribunal set out in paragraph 10 the reasons for their conclusion.  In the final sentence of that paragraph they said:

		"We therefore hold that this complaint succeeds and the applicant was discriminated against by reason of her race."

We start with this observation.  The approach of the Tribunal was that there was no direct evidence of discrimination.  The matter was therefore to be approached on the basis of what inferences could be drawn from all the evidence.  That is a perfectly correct approach.  As observed by Neill LJ in King v GB China Centre [1992] ICR 516 at 528:

		"(1) It is for the applicant who complains of racial discrimination to make out his or her case.  Thus if the applicant does not prove the case on the balance of probabilities he or she will fail. (2) It is important to bear in mind that it is unusual to find direct evidence of racial discrimination.  Few employers will be prepared to admit such discrimination even to themselves". (3) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal".

He explains the approach.  Where there is a finding of difference in race and difference in treatment, the case will point to the possibility of racial discrimination.  In those circumstances the Tribunal looks to the employer for an explanation.  If no explanation is put forward, or if the Tribunal considers that the explanation is inadequate or unsatisfactory, it is legitimate for the Tribunal to infer that the difference in treatment was on racial grounds.

	With that approach in mind we examine the paragraph which contains reasoning criticised by Mr Oldham on behalf of the nursing home.  He asked us to look in detail at the stages by which the Tribunal arrive at the decision that there was discrimination.  The Tribunal stated first that they were not satisfied that Mrs Mitchell was to blame for the incident of Mr Faulkner.  They went on to hold that they would not regard the response of the nursing home in issuing a verbal warning as beyond the range of a reasonable employer who had, on reasonable grounds, come to the conclusion that the offence had been committed.  So the Tribunal were of the view that, although they would not agree with the employer, they were satisfied that the employer had reasonable grounds in believing that Mrs Mitchell was to blame and that it was reasonable to issue a verbal warning to her.

	The Tribunal proceeded to deal with the reasons for the dismissal of Mrs Mitchell.  They stated this:

		"We are satisfied that the dismissal of the applicant arose out of her unsatisfactory relationship with Mrs Williams.  As Mrs Rowe very frankly put it in her evidence "There was a very serious conflict of personality here."

They refer to the evidence of the care assistants who were inclined, from what they had seen, to blame Mrs Mitchell rather than Mrs Williams.

	The Tribunal stated:

		"From the evidence we have heard we would say that the differences between the two women concerned were in themselves petty in the extreme and that the true nature of the trouble was indeed a clash of personalities... We are quite sure that a man [Mr Tait] of his knowledge and sophistication would not have dreamed of acting as he did in dismissing the applicant so quickly and summarily had he not felt that he was perfectly safe in so doing because of the short period of her employment.  She was not entitled after so short a period to come before this Tribunal to complain of unfair dismissal."

Having observed that there was no direct evidence which showed specifically that Mrs Mitchell was or was not discriminated against, they correctly said they had to draw an inference from all the surrounding facts.  They stated, as the inference that they drew, this:

		"The inference we draw is that Mr Tait felt that there was likely to be continued trouble by reason of the differences between the applicant and Mrs Williams.  Mrs Williams was a very new employee of whom he could at the time know little but who was white and born in the United Kingdom.  The applicant was a foreign lady given perhaps to expressing her emotions and feelings more extravagantly than might someone of Northern European extraction.  In our view he decided that to keep a happy work force the best course for him was to get rid of the applicant."

The last few sentences of the paragraph are important to the submissions on each side.  I will read them in full:

		"On such facts as we have heard we are satisfied that he [Mr Tait] decided to do this because of her foreign birth and foreign ways of which he did not approve.  These, however, were not matters which at that stage justified any disciplinary procedure.  It is noteworthy that he took no such action as regards Mrs Williams.  We are satisfied on the evidence that we have heard that he treated the applicant less favourably than he would have treated other persons and in particular Mrs Williams because of her race.  The matter clearly falls within subsection 2(c) of section 4 of the Act because the applicant was dismissed.  We therefore hold that this complaint succeeds and the applicant was discriminated against by reason of her race."

	In his submissions on behalf of Mrs Mitchell, Mr Alexander correctly stated that this Tribunal only has a limited jurisdiction.  It only has jurisdiction to hear appeals on questions of law.  It follows from that that there is no jurisdiction in the Tribunal to substitute for the views of the Industrial Tribunal its own views about the facts of the case.  Mr Oldham, on behalf of the nursing home, says he is not inviting the Tribunal to substitute any views of its own as to the facts; he is relying on error of law in paragraph 10 of the decision.  He put his case clearly and succinctly as follows:

	The first error of law was that the Tribunal failed to conduct the complete exercise under the 1976 Act which is necessary before a conclusion can be reached as to whether or not there has been racial discrimination.

	The Tribunal referred to section 1 and it referred to section 4 in the final part of paragraph 10.  The Tribunal failed, he submits and we agree, to have any regard to the comparative exercise which is required in a case of direct racial discrimination by section 3(4).  It appeared from the decision that, insofar as it considered the position of a comparator, the Tribunal used Mrs Williams.  But it was not possible, Mr Oldham submitted, to use Mrs Williams as a comparator in conformity with section 3(4).  The comparison should be made by a person who is not of the applicant's ethnic group; and who is in the same relevant circumstances as the complainant or in circumstances which are not materially different from the complainants.

	Mr Oldham pointed out that, in fact, the relevant circumstances of Mrs Williams and Mrs Mitchell were different in a relevant aspect.  He pointed out that it was Mrs Mitchell who had spoken the threatening words about Mrs Williams.  There was no similar action on the part of Mrs Williams in relation to Mrs Mitchell or anybody else.  On this part of the case Mr Oldham submitted that the Tribunal should have asked itself the question - "Would someone of different racial origin in the same or not materially different circumstances have been treated in a more favourable manner?".  The Tribunal did not ask that question and did not answer it.  He submits that if they had asked that question then, on the facts found, they were bound to come to the conclusion that there was no direct discrimination under section 1(1).

	The second point made by Mr Oldham is in relation to the reason for dismissal which was obviously crucial to the case.  Mrs Mitchell was complaining that the reason for her dismissal was racial.  The nursing home was saying that the reason for the dismissal was not racial.  It was by reason of misconduct in the form of threatening behaviour by Mrs Mitchell.  

	We are satisfied on Mr Oldham's submissions that there are internal inconsistencies in paragraph 10 of the decision in identifying what exactly was the reason for Mrs Mitchell's dismissal.  The Tribunal said, in early parts of the paragraph, that they were satisfied that the dismissal arose out of the unsatisfactory relationship between Mrs Mitchell and Mrs Williams; that there was a clash of personalities and, although the differences between them were petty, the true nature of the trouble was that clash.  They drew an inference that Mr Tait felt that there was likely to be continued trouble in the nursing home by reason of the clash between Mrs Mitchell and Mrs Williams.  He decided that, in order to keep a happy workforce, the best course for him was to dismiss Mrs Mitchell.

	Up to that point one would have thought that the conclusion reached by the Tribunal was that there was no racial discrimination, because the Tribunal was finding as a fact that the reason for the dismissal was not racial, but related to the personality clash and the conduct of Mrs Mitchell at the interview.  It is also fair to add that in this case we have the notes of evidence of the Chairman.  There is no hint in any of the evidence that the reason for the personality clash between the two women was connected with racial differences.  Instead of coming to the conclusion one would have expected from that reasoning, the conclusion is, as appears from the decision, that Mr Tait treated Mrs Mitchell differently than he would have treated Mrs Williams because of her race and therefore it was racial discrimination.

	I have quoted enough of paragraph 10 to show that there were inconsistencies as to the reason for the dismissal.  The Tribunal states early in the paragraph that the reason was personality clash and yet the conclusion at the end was that dismissal was on grounds of race.

	Mr Alexander, for Mrs Mitchell, has pointed out to us the importance of reading the decision as a whole and of bearing in mind the important fact that the Industrial Tribunal heard all the evidence, saw the witnesses cross-examined and were in the best position to decide whether there was racial discrimination or not.  He placed a great deal of importance in his submission on the sentence in the decision where the Tribunal said:

		"We are satisfied on the evidence that we have heard that he [Mr Tait] treated the applicant less favourably than he would have treated other persons and in particular Mrs Williams because of her race."

That, he says, is a conclusion on the facts which we should not disturb.  He added a further point that we should bear in mind that it appeared from the decision and the notes that Mr Tait never actually gave any evidence to the Tribunal.  The Tribunal may have attached significance to that fact in the conclusion it reached.  He took the decision to dismiss.  As the Tribunal observed in paragraph 8 of the decision:

		"[he] conducted the case for the respondent but has not given evidence."

Mr Alexander said he was the person who would be able to give the evidence, if anyone could, to satisfy the Tribunal as to the explanation for the dismissal.

	We have taken note of those submissions, particularly of Mr Alexander's submission that the Tribunal also stated that they were satisfied that Mr Tait decided to dismiss Mrs Mitchell because of her foreign birth and foreign ways of which he did not approve.  He says the reference to "foreign ways" is to the way in which she expressed her emotions and feelings at the interview on 20 March.  Those were racial characteristics of Mrs Mitchell. If he decided to dismiss her because of those ways he was taking a decision on racial grounds.

	We have considered all those arguments.  The difficulty with the arguments is that they fail to grapple with Mr Oldham's second main point: that is that, notwithstanding the statements relied on by Mr Alexander, there are earlier statements in the paragraph inconsistent with a finding that the reason for dismissal was on racial grounds.

	We agree with Mr Oldham's second point that in this case the decision is internally inconsistent on the reasons for dismissal.  Accordingly, the Tribunal cannot have applied the correct legal principles in deciding the complaint of racial discrimination.

	The Third main point made by Mr Oldham embraces the other two and emphasises them by a submission that the decision was perverse; that is on the findings of fact made and applying the law correctly, including section 3(4), no reasonable Tribunal could have reached the decision that this was a case of racial discrimination.  On this part of the case Mr Oldham emphasised that Mrs Mitchell had, as the Tribunal found, said in the interview that "she would hang or kill Mrs Williams and would not take orders from her"; that Mrs Mitchell had previously received a verbal warning and there was no finding that that verbal warning was in any way issued on racial grounds.  He pointed out that the dismissal arose, as the Tribunal found, because of the unhappy relationship between Mrs Mitchell and Mrs Williams.  Mr Tait was motivated by the wish to keep a happy workforce in the nursing home.  In those circumstances he submitted that the finding of racial discrimination must be perverse.  

	We agree with Mr Oldham on that point.  Looking at the facts found by the Tribunal down to the last few sentences of paragraph 10 of the decision we can find no basis for the conclusion of the Tribunal at the end of that paragraph that there has been racial discrimination.  In those circumstances we allow the appeal.  There have been errors of law, both in the failure to apply section 3(4) and in the inconsistency in the reasoning.

	We allow the appeal on the basis of those errors.  We also decide that this is a case where we should dismiss the complaint rather than referring the matter back to the Industrial Tribunal for a fresh hearing.  The reason for that conclusion is this.  The Tribunal heard evidence from those involved in the actual incidents and in the interview on 20 March.  The Tribunal made clear findings of fact in relation to all the relevant primary facts.  What they stated favourable to Mrs Mitchell at the end of paragraph 10 was a matter of inference.  In our view, for the reasons stated, they were inferences which no reasonable Tribunal could make on the basis of the facts found.  They were inconsistent with the inferences they themselves had made earlier in the decision.  In a word there was nothing in the primary facts from which it would be possible to infer, on a correct application of the law, that this was a case of racial discrimination.

	We add this.  That we are all sympathetic with the position of Mrs Mitchell.  She had been working at the home since November 1993 with no complaint and a satisfactory work record.  Within a period of a few days she found herself subject to a serious complaint in relation to the scalding of a patient and faced with an interview relating to her relations with Mrs Williams who had only arrived to work there on 17 or 18 March.  So, after months of satisfactory work, Mrs Mitchell found, in less than a week, that she had lost her job.  If she had a longer period of service to qualify her to bring a case of unfair dismissal the result might have been that she was unfairly dismissed.  But that is not the case that was brought. It was not a case that could have been brought.  The case was purely one of racial discrimination.  As emphasised by Neill LJ in the China case, the burden was on her to prove discrimination.  She either had to do it by direct evidence or by inference.  In the absence of direct evidence she had to rely on inference in this case.  If the facts were not there from which the inferences could be made her claim had to fail.  So, while expressing that sympathy for Mrs Mitchell, we feel bound to allow the appeal and dismiss the complaint.