Appeal No.	 EAT/654/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 1 June 1999
Judgment delivered on 12 November 1999

Before
HIS HONOUR JUDGE PETER CLARK
MR A C BLYGHTON
MR P A L PARKER CBE

THE CROMWELL HOSPITAL	APPELLANTS

(1) MR F FRANCIS (2) MR K LICORISH	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR P OLDHAM
(of Counsel)
Instructed by:
Mr C Henson
Regional Director
PPC Consultants Ltd
Enterprise House
Great North Road
Little Paxton
Cambridgeshire
PE19 4BQ

For the Respondents	MR W PANTON
(of Counsel)
Instructed by:
Mr Anunay Jha
Principal Legal Officer
Commission for Racial Equality
Elliott House
10/12 Allington Street
London
SW1E 5EH	

JUDGE PETER CLARK:	This is an appeal by the employer, The Cromwell Hospital [‘Cromwell’] against a reserved decision of the London (North) Employment Tribunal sitting on 12th, 13th and 16th March 1998, promulgated with extended reasons on 27th March 1998, upholding complaints of unlawful racial discrimination and breach of contract brought by the applicants, Franklyn Francis and Kenneth Licorish.

Background

1.	Both applicants were employed by Cromwell as security officers at their West London private hospital. Both are of African-Caribbean racial origin. Mr Francis commenced employment on 4th December 1995, Mr Licorish on 17th January 1996.

2.	Previously, Mr Francis had 19 years service as a security officer in NHS hospitals and was the holder of a Royal Humane Society award and two citations for bravery. Mr Licorish had 32 years service in the NHS, rising to Assistant Head Porter.

3.	The head of security at Cromwell was Mr Joyce, whose previous experience had been in the Army, the Police Force, the Ambulance Service and overseas. He is white.

4.	Both applicants were dismissed by Cromwell during November 1996 in the following circumstances. Mr Licorish was on duty at the hospital on 12th November. During the course of his shift he gave the keys to the Radiotherapy Department to one of the doctors without recording that fact in the appropriate record book. The following day he received notice of a disciplinary hearing which was to take place on 15th November. The charge against him was failure to comply with Security Procedures relating to the issue and return of keys. The keys handed over by Mr Licorish apparently went missing at 7.45 a.m. on 13th November, and were found later that day at 4.30 p.m. in the key cabinet, but on the wrong hook and with the tag removed.

5.	The disciplinary hearing took place on 15th November. It was conducted by Mr Joyce with Mrs Middleton of personnel in attendance. Mr Licorish accepted that he acted in breach of the key procedures and was summarily dismissed for gross misconduct. Against that decision he appealed to Mr Anderson, Clinical Manager, who was advised by Mr Simpson of Personnel. The decision to dismiss was upheld, but the seriousness of the charge was reduced from gross misconduct to serious misconduct, with the result that he was dismissed with pay in lieu of notice and a favourable reference.

6.	On 20th November Mr Francis was called into a meeting with Mr Joyce and Mrs Middleton. He was told that he was being dismissed because he had shown a marked reluctance to take part in telephone training. Further, his accent on the telephone was said to be deep and broad and difficult to understand. No complaints about his accent had previously been made or made known to him. By a letter of that date Mr Joyce said that because of his reluctance to undertake telephone training he would be unable to deal with an emergency and that his services were being terminated for unsatisfactory performance.

7.	Mr Francis also appealed to Mr Anderson. By letter dated 6th December Mr Anderson suggested that the reason for dismissal was a general deterioration in Mr Francis’ performance and flexibility, a seeming lack of willingness to learn new duties together with concerns regarding his ability to take on those duties. It was also pointed out that he had no automatic right of appeal.

8.	On 18th December and 23rd January Mr Francis attended brief meetings with Mr Anderson and Mr Simpson. Between those meetings an investigation was put in hand, the tribunal found, in an effort to justify Mr Francis’ dismissal. A further meeting was arranged for 5th March, that is, after the three-month time for complaints to an Employment Tribunal had expired. By then Mr Francis had presented his complaint on 6th February 1997. In these circumstances he did not attend the further meeting fixed for 5th March. Mr Francis did not receive a reference.

9.	At the appeal stage both applicants raised issues of unlawful racial discrimination which were dismissed out of hand by the employer without investigation.

10.	In addition to the chronological background the tribunal made the following further findings of fact:

(1)	In October 1996 Mr Joyce visited the offices of the Corps of Commissionaires to discuss recruitment and training. The tribunal found, and there was evidence from Mr Joyce to support this finding, contrary to the contention originally advanced by Mr Oldham in Cromwell’s Notice of Appeal, that the Corp generally recruited from former servicemen and police officers, so that it could be anticipated that anyone put forward for employment by the Corps would be white. At that time Cromwell was seeking to replace a white security officer, Mr Lacey who had left in September and one other to increase the establishment. Very soon after their dismissal the applicants were replaced by white recruits procured through the Corps.

(2)	Although there was a short statement in Cromwell’s Employee Handbook on Equal Opportunities this was given a low priority by Mr Joyce; as he put in evidence:

“Ethnic minorities not a priority.”

(3)	Although Cromwell’s in-house Department was a recent creation, previous mishaps involving other security officers (white) had occurred and had involved losses or subsequent payments of money. These provoked no investigation, no charges and no dismissals.

(4)	By a letter dated 4th November 1996 security officers were advised of proposed changes in their shift rotas and working hours and sent a revised job description which included responsibility for operation of the hospital switchboard. There would be a consultation period before the changes took effect on 1st January 1997. There was to be a staff appraisal in November and training apart from telephone training would be given by the Corps.

	We have read that letter. What it says is:

“REVISED ROTA AND SALARY
You will be aware of the proposed changes in shift rotas and working hours for the Security Unit with effect from 1st January, 1997. I left for your attention, perusal and consultation copies of the proposed rota at the beginning of October and, to date, I have received no alternative proposals.
I have to inform you, therefore, that the new rota system will become operative as from 1st January, 1997. …”

The Tribunal decision

11.	Racial discrimination
	The applicants brought their claims of direct racial discrimination under ss.1(1)(a) and 4(2)(c) of the Race Relations Act 1976 which provide:

“1	Racial Discrimination
(1) A person discriminates against another in any circumstances relevant for the purpose 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;

4	Discrimination against applicants and employees
	…
	(2) It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain to discriminate against that employee-
…
(c)	by dismissing him, …”

The structure of the tribunal’s conclusions on these complaints begins at paragraph 12 of their reasons where it is announced:

“12.	From the above findings of fact we draw inferences that the Respondent unlawfully discriminated against the Applicants on racial grounds.”

Having stated that proposition the tribunal then move to their conclusions. At paragraph 13 they record that the tribunal was referred to the following authorities:

King v Great Britain China Centre [1991] IRLR 513 (CA)
Chapman v Simon [1994] IRLR 124 (CA)
Zafar v Glasgow City Council [1998] IRLR 36 (HL)

They state that they are aware of the guidance given by Neill LJ in King (later approved by the House of Lord in Zafar) and then direct themselves as follows:

“13 … In this case there is a difference of race and the Applicants have suffered the detriment of dismissal. We are aware of the recent caution issued in Zafar. While it is for the Applicants to prove their case on the balance of probabilities, we are entitled to draw inferences from the findings of primary fact. ...”

They then deal with the individual applicant’s cases. We should set out their findings in full:

“The First Applicant [Francis]
In relation to this Applicant, Mr Joyce started by taking issue with his accent. This Applicant has not been recruited for switchboard duty. Nevertheless, no though whatever was given to the possibility of elocution lessons or putting him on the day shift with his other white colleagues where he would not be required to man the switchboard. Although he was shortly to be appraised, his dismissal could not wait for that nor for the end of the consultation period. Mr Joyce complained that this Applicant was not a team player but there was no evidence offered by him on the matter of team building. The Respondent’s policy did not provide for an appeal in relation to employees of less than two years’ continuous employment. Whilst affording the Applicant the benefit of an appeal, the Respondent dragged its feet in such a way as to take him perilously close to end of the three month limit.
The Second Applicant [Licorish]
This Applicant gave keys to a doctor without obtaining a signature. At the time he was engaged on the switchboard and an alarm was going off. Sometimes security officers sign the book themselves. Sometimes, according to Doctor Bey, the book as in this case was not signed by anyone. The Applicant admitted his fault and paid the price. Compared to other white officers (Lacey, Topliss on other occasions) he was treated less favourably. He was aware of Mr Joyce’s negative perception of his black subordinates. He remained distant and there was little or no dialogue between them. This compared unfavourably with his friendly disposition to white subordinates.”

Finally, the tribunal make certain observations about Equal Opportunities within the department.

12.	Breach of contract
The tribunal deal with these complaints in a single paragraph:

“14	We will now consider the claim for breach of contract. It is put on the basis that there was a consultation period and that these Applicants were dismissed before the expiration of that period. We find that the Applicants were entitled to recover for the portion unexpired of the consultation period of which they were deprived by their dismissal.”

The question of remedies was adjourned.

The Appeal

13.	Racial discrimination
We make no apology for setting out the steps to be taken by an Employment Tribunal in determining complaints of racial discrimination, by reference to the decided cases. This is not a mantra which tribunals are required to recite as a matter of form. It goes to the substance of their reasoning, which must show the parties the process of reasoning by which they have come to win or loose. Meek v City of Birmingham District Council [1987] IRLR 250.

(1)	was the complainant treated less favourably than an actual or hypothetical comparator of different racial origin in circumstances where the case of the complainant is the same or not materially different from that of the comparator. (S.3(4))? It follows that it would be necessary for the tribunal to identify an actual or hypothetical comparator complying with s.3(4).

(2)	if so, why did the complainant receive that less favourable treatment? Was it on the grounds of race or for some other reason? See Nagarajan v London Regional Transport [1999] IRLR 572, paragraph 17, per Lord Nicholls.

(3)	it will be rare to find direct evidence of racial discrimination. Thus, where there is less favourable treatment and a difference in race between the complainant and the comparator(s) the tribunal will look to the respondent for an explanation.

(4)	if, on its findings of fact, the tribunal considers that explanation to be inadequate or unsatisfactory the tribunal may draw an inference of unlawful discrimination. See Zafar.

(5)	It is essential that the tribunal makes all necessary findings of primary fact before going on to consider whether or not such an inference ought to be drawn. See Chapman v Simon, paragraph 43, per Peter Gibson LJ.

With that approach in mind we turn to the submissions made by Counsel in this part of the appeal.

14.	Less favourable treatment
	Who were the relevant comparators?

	In the case of Mr Licorish it appears that the tribunal drew a comparison with two white security officers, Lacey and Topliss. The only references to those two officers in the tribunal’s reasons appear at paragraph 13, where they say:

“Compared to other white officers (Lacey, Topliss on other occasions) he was treated less favourably.”

	and at paragraph 8 it is said:

“8	Although the Respondent’s in-house Department was a recent creation, previous mishaps involving other security officers (white) had occurred and had involved losses or subsequent payments of money. These provoked no investigation, no charges and no dismissal.”

	We are prepared to assume, contrary to Mr Oldham’s submission, that the person for whose acts Cromwell was vicariously responsible and who was found to have discriminated against each applicant by dismissing him, was Mr Joyce.

	In what circumstances were Lacey and Topliss treated more favourably than Mr Licorish? The tribunal’s findings of primary fact simply do not relate in sufficient detail. We see from the pleadings that Cromwell contended that the cases of Lacey and Topliss were not properly comparable with that of Mr Licorish. In the absence of clear findings of fact we are unable to say whether those cases were truly comparable. 

	Mr Panton submits that we should infer from paragraph 8 of their reasons that the tribunal did not accept the explanation put forward by Cromwell for the difference in treatment between Mr Licorish and the two white officers. In our judgment that is not sufficient. Clear findings of fact and the tribunal’s reasons for rejecting Cromwell’s explanation are a necessary minimum.

	In the case of Mr Francis it is common ground that no comparator, actual or hypothetical is identified by the tribunal. In the absence of any proper comparison the decision in his case is open to the challenge that the tribunal has inferred discrimination solely from their implicit conclusion that Mr Francis was unfairly treated by Cromwell, rather than that the less favourable treatment, dismissal, was on grounds of his race.

	In these circumstances we have concluded, contrary to Mr Panton’s submissions, that the tribunal has failed to meet the minimum requirements for a reasoned decision in accordance with the principles in Meek. It cannot stand. We shall set aside this part of the decision, that is the findings of unlawful racial discrimination in each case and direct a rehearing before a fresh Employment Tribunal.

15.	Breach of contract
	It is axiomatic that the tribunal is here required to identify:

(1)	the relevant express or implied term of the contract, and
(2)	the facts amounting to a breach of that term, and
(3)	the loss flowing from that breach.

	Mr Panton accepts that there are limitations to the tribunal’s reasons in paragraph 14 of the reasons. We agree. There is no finding as to the relevant term of the contract and consequently it is difficult, from the tribunal’s reasons, to identify the breach. Finally, it is not apparent how the loss flowing from such breach is to be quantified.

	Mr Oldham strongly submits that in these circumstances there is here no identifiable term of the contract in respect of which Cromwell could be in breach. He urges us to allow this part of the appeal and simply dismiss the claim for breach of contract.

	We have carefully considered that submission, but we accept Mr Panton’s contention that the proper course, if we set aside the tribunal’s finding of breach of contract, is to remit this claim also to a fresh tribunal.

	We think that the real difficulty here is that the applicants have never properly particularised their breach of contract claims. Accordingly we shall allow this appeal and remit the whole case for rehearing before a fresh tribunal. Further, in the exercise of our powers under s.35(1) of the Employment Tribunal Act 1996 we shall, of our own motion pursuant to Rule 4(1)(a) of the Employment Tribunals Rules of Procedure, direct that within 28 days of the date of the promulgation of this judgment the applicants provide the following further particulars of their breach of contract claims, stating:

(1)	what is the term of the contract of employment relied upon and whether that term is express or implied. If express, identifying the document(s) in which it is contained; if implied, setting out all facts and matters relied upon in support of the contention that such a term is to be implied;

(2)	the nature of the breach of such term;

(3)	what loss is said to flow from that breach?