Appeal No.	 EAT/850/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	                   At the Tribunal
	                On 27 June 2002
Judgment delivered on 22 October 2002

Before
MS RECORDER COX QC
MR J HOUGHAM CBE
MS B SWITZER

NORTH STAFFORDSHIRE COMBINED HEALTHCARE NHS TRUST	APPELLANT

DR K A AYES	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised 23/10/02
______________________________________________________________________________

	APPEARANCES

For the Appellant	MR P DEAN
(of Counsel)
Instructed by:
Messrs Mill & Reeve
Solicitors
Midland House
132 Hagley Road
Edgbaston
Birmingham
B16 9NN

	
For the Respondent	MISS A HADLEY
(Representative)
British Medical Association 
BMA House
Tavistock Square
London WC1H 9JP	

MS RECORDER COX QC

1	This is an appeal by the Trust (the Appellants) from a Decision of the Birmingham Employment Tribunal, promulgated on the 11th June 2001, upholding the Respondent’s complaint of direct racial discrimination.  The Appellants contend that the Tribunal misdirected itself by incorrectly applying the statutory test for determining whether there has been “less favourable treatment” of the Respondent, within the meaning of section 1(1)(a) of the Race Relations Act 1976.  The Respondent argues that this was a carefully structured and reasoned decision and that the Tribunal did ask itself the right question, so that no error of law arises and we should not interfere.

2	It is common ground that the Tribunal directed itself correctly as to the law which was to be applied.  The issue in this appeal is therefore whether the law was correctly applied to the facts found.  On that issue we have had the assistance of Mr. Dean of counsel, appearing for the Appellants, and Ms. Hadley from the BMA for the Respondent.

Background

3	The Respondent, Dr. Khalid Ayes, was employed by the Appellants from 5th February 1997 to 30th June 1999.  He is of Sudanese origin.  He worked initially as a locum registrar in general and geriatric medicine but, during the summer of 1997, he obtained a permanent residency qualification from the Immigration Service and became eligible to apply for the specialist registrar rotational training scheme through the West Midlands Regional Post-Graduate Dean.  He was appointed to the scheme on 3rd November 1997 and commenced work as a substantive specialist registrar.  Following complaints  that he had, on two occasions, failed to provide appropriate support and advice to junior doctors and, in a separate incident, had behaved in an aggressive and threatening manner towards a nurse, charges were brought against him and the Respondent was suspended from duty on 11th November 1997.

4	There was then a lengthy investigation into the allegations, which raised issues of both personal and professional conduct.  There was considerable delay in dealing with these matters, which delay the Medical Defence Union described as “intolerable” in correspondence on behalf of the Respondent.  The investigation into the professional conduct matters was not concluded until December 1998 and the disciplinary hearing relating to the personal conduct issue did not take place until March 1999.  By that time the Respondent had been suspended for some 16 months.  No disciplinary penalties were imposed in respect of any complaint but matters were not finally resolved until the end of June 1999, when the Respondent was able finally to return to clinical duties and moved to a new post with a new employer on the Geriatric Medicine Training Rotation.

5	He issued a complaint in the Tribunal on 24th September 1999 complaining of breach of contract, racial discrimination and victimisation in relation to the treatment he had received.  He alleged that his prospects of finding a consultation post following such lengthy suspension had been considerably diminished.   The Appellants denied all the allegations, though they admitted that there had been regrettable delay.  Several explanations were put forward for the delay and, further, the Appellants referred to letters of apology which had been written to the Respondent and his representative in July 1999.

6	The Tribunal hearing lasted some 5 days in August 2000 and March 2001.  The Tribunal dismissed the claim for victimisation and also the claim for breach of contract, in respect of which there was no jurisdiction to hear the complaint because the Respondent had not been actually or constructively dismissed.  However, they upheld the complaint of direct racial discrimination, against which finding the Appellants now appeal.

The Tribunal Decision

7	The Tribunal set out its findings of fact at paragraphs 7 – 64.  The precise details of the complaints are not relevant for the purposes of the issue in this appeal.  After describing the events leading up to the Respondent’s suspension the Tribunal records the date of suspension as the 11th November 1997, at which time it was hoped that the preliminary investigation into the complaints would be completed within ten days.  The subsequent paragraphs confirm that this was a wholly inaccurate estimate because it was not until 8th December 1998 that the Respondent received a letter from the Trust telling him that the investigation into the professional matters had been completed.  The Respondent then decided to accept proposals for some rehabilitative training, which had been recommended following the various inquiries made.  He was told that a position could be found within the West Midlands which could accommodate him and that his suspension would then be lifted.

8	Meanwhile a disciplinary hearing for the personal conduct matter concerning behaviour towards a nurse was fixed for 19th March 1999, at which it was decided that his conduct was not such as to warrant any disciplinary penalty.  However, the Respondent still had not been placed on the re-training programme, despite a suitable post having been identified in February.  The Respondent’s period of suspension ended only on 30th June 1999, when he resumed clinical duties and moved to his new post.  He was, as the Tribunal found:
“by far the longest suspended doctor in the history of the Trust”
(see paragraph 55).

9	At paragraph 49 the Tribunal set out facts which emerged from the Appellants’ replies to questionnaire.  In view of their findings on discrimination these are relevant facts and we repeat them here.  

“(a)	The respondent undertakes ethnic monitoring of all staff including medical staff by grade.  The respondent employ 4,115 members of staff of which 3,987 are white and the remainder from the ethnic minorities.
(b)  Four medical staff have been suspended in the last five years, all of whom have been from the ethnic minorities.  It includes Dr Foreman who is white, but who considers himself as belonging to an ethnic minority, having issued proceedings himself for race discrimination against the Trust.  
(c)  A total of four medical staff have been subjected to professional conduct/competence procedures.  All four belonging to ethnic minorities, including Dr Foreman above.
(d)  Two medical staff have been subject to personal conduct procedures - one white and one black African.
(e)  Two medical staff have been subject to professional conduct/competence and personal conduct procedures but not suspended.  One of them is white (not Dr Foreman) and one Indian.
(f)  All 11 members of the Trust board are white.
(g)  The Trust has an equal opportunities policy but does not have a separate racial/sexual discrimination policy.  It does have a policy on harassment at work which is set out at pages 384-389 in the bundle.
(h)  The Trust does not maintain a central register for suspensions of employees.  Suspension decisions are, however, reviewed on a two-weekly basis by the Medical Director.  Where a doctor is suspended, a regular report is made at every subsequent Trust board meeting.”

10	They found also that, by the early to mid 1990s, the profession generally was becoming increasingly concerned at the lengthy delays involved in disciplinary procedures and suspensions.  Guidelines were issued in October 1994, which sought to lay down time limits to be followed by NHS Trusts when practitioners were suspended.  The Tribunal found that there was a serious deficiency in the procedure laid down, in that no time limit was set for the conclusion of the preliminary investigation.  The Appellants’ case was that the matter never in fact proceeded beyond the preliminary stage.  Thus, despite the very long period of suspension, they had technically not been in breach of the procedure (see paragraph 76).

11	At paragraphs 65 – 76 the Tribunal set out the law which had to be applied, referring both to the relevant statutory provisions in the 1976 Act and, in respect of the breach of contract claim, the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994.  They set out in particular the provisions of section 1(1)(a) of the Act, which state that:

“(1)  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.”

12	They were also referred to a number of authorities relied upon by the parties.  In paragraphs 73 – 75 they stated as follows:

“73    In arriving at our decision we have had regard to the guidance given by the Court of Appeal in King -v- Great Britain-China Centre [1992] IRLR 513 and by the House of Lords in Zafar -v- Glasgow City Council [1998] 36.  We remind ourselves that we must look at all the evidence and that the applicant must show that it is more probable than not that on racial grounds the respondent treated him less favourably than he treated or would have treated others.  We remember that direct evidence of racial discrimination is rarely available so evidence will normally be inferences from primary facts.
74.     We ask ourselves on the facts found:-
(1)  Did the respondent treat the applicant less favourably than others comparing 
like for like?
(2)  Was there a difference in race?
(3)  Was the treatment on racial grounds?
75.     We remind ourselves that if the answer to (1) and (2) above is “yes” then it is common sense to look to the respondent for an explanation.  There is no question of shifting the burden of proof but only the respondent can explain the reason for its actions.  If there has been no explanation or the explanation is inadequate or unsatisfactory, the tribunal should be prepared to infer that the treatment was on racial grounds.  We have to look critically at the respondent’s explanation and not supply our own.  We note that it is unpalatable to decide that the treatment was on racial grounds in the face of a respondent’s sworn evidence to the contrary but we know that race discrimination does exist and that it is improbable that any respondent will admit it.  We have to resolve conflicts of evidence by decision.  It is not necessary to show that the respondent was ill-intentioned or prejudiced.  We remind ourselves that whilst we may be entitled to draw inferences from primary facts as we find them, we are not obliged to do so.  The question at the end of the day is: “has the applicant shown that it was more probable than not that he was a victim of racial discrimination”.

13	It is common ground between the parties, and we agree, that this was essentially a correct direction in law on how to approach the direct racial discrimination complaint.  However, it will be seen that they did not refer expressly to the words of section 3 (4) of the Act, which provide that:
“(4)  A comparison of the case of a person of a particular racial group with that of a person not of that group under s.1(1) must be such that the relevant circumstances in the one case are the same, or are not materially different, in the other.”

This appears to have been summarised as “…..comparing like for like” in paragraph 74 (1).    	

14	The Tribunal’s conclusions in respect of racial discrimination appear at paragraphs 82 – 102.  In paragraph 82 they direct themselves, correctly, that:
“….any consideration of the respondent acting in the manner of a reasonable employer is irrelevant for these purposes.  We are not dealing with a claim for unfair dismissal.  We must ask ourselves why the alleged discriminator acted as he did.  If there is a difference in treatment we are entitled to look to the employer for an explanation and having received that explanation we may draw an inference but we are not bound to do so.”

15	They then set out their answer to the first question posed in paragraph 73, as follows:
 “83     Did the respondent treat the applicant less favourably than others, comparing like with like?
The applicant must show he has been treated ‘less favourably’.  It is necessary for the applicant to demonstrate this with reference to either an actual or hypothetical comparator.  The applicant relies on a hypothetical comparator.  The comparator can either be a hypothetical white specialist registrar in the same circumstances or any other white employee employed by the Trust.  We are satisfied that the applicant has been treated less favourably than a hypothetical white specialist registrar would have been treated in the same circumstances.  There is no white specialist registrar who has ever been suspended for this length of time or indeed, even been suspended.”

It is upon this paragraph that this appeal has concentrated because that is the extent of the reasoning and analysis by this Tribunal in respect of “less favourable treatment”.  The Tribunal then moves on to deal with the difference in race and whether the treatment was “on racial grounds”. In respect of this matter there is detailed consideration of the Appellants’ explanations for the delay, all of which the Tribunal finds inadequate.  They therefore conclude at paragraph 100 that:

“Viewed as a whole, the absence of satisfactory explanations for less favourable treatment against a hypothetical comparator are such, applying the King criteria, that we are prepared to draw an inference of race discrimination………
101.  We have looked at the statistical evidence provided by Dr. Foreman and Professor Jones.  The expert evidence of Professor Jones is that the number of doctors suspended are too few to be able to draw any direct connection between race and the risk of suspension.  Whilst that may be correct, the fact remains that the only doctors who have been suspended in this Trust are those from the ethnic minorities.  There is nothing in the evidence to suggest that this is a Trust which habitually treats its white doctors in the manner in which it treated Dr. Ayes.”

16	They conclude by finding that the Respondent had suffered a detriment within the meaning of section 4 (2)(c), his career being hampered by the long period of suspension and his reputation having suffered accordingly.

The Appeal

17	Mr. Dean submits that, in paragraph 83, this Tribunal wrongly confused an actual with a hypothetical comparator and, further, that there was no basis on which they could have come to the conclusion that the Respondent was treated less favourably than the correct comparator, namely a hypothetical white specialist registrar in the same or not materially different circumstances.  The onus was on the Respondent to prove less favourable treatment and this he failed to do.  The Tribunal erroneously confused the unreasonableness of the Appellants’ conduct with discrimination.  Ms. Hadley contends that the Appellants’ criticisms are semantic and that the Tribunal was entitled to find that there had been less favourable treatment based on the answers to a questionnaire, referred to at paragraph 49, and the statistical information in paragraph 101.  These, she submits, were the primary facts from which they were entitled to draw an inference of less favourable treatment.

18	In Zafar v Glasgow City Council [1998] ICR 120, at 123H the House of Lords confirmed that the question posed by a complaint of race discrimination was split into two distinct parts.  First, less favourable treatment and secondly racial grounds.  As to less favourable treatment Lord Browne-Wilkinson said:

“The Act of 1976 requires it to be shown that the complainant has been treated by the person against whom the discrimination is alleged less favourably than that person treats or would have treated another.  In deciding that issue the conduct of the hypothetical reasonable employer is irrelevant.  The alleged discriminator may or may not be a reasonable employer. If he is not a reasonable employer, he might well have treated another employee in just the same unsatisfactory way as he treated the complainant, in which case he would not have treated the complainant “less favourably” for the purposes of the Act of 1976.  The fact that, for the purposes of the law of unfair dismissal, an employer has acted unreasonably casts no light whatsoever on the question whether he has treated the employee “less favourably” for the purposes of the Act of 1976.”

In the case of Effa v Alexandra Healthcare NHS Trust and Jenkinson CA 5/11/99, unreported, the Court of Appeal also considered the correct approach to the question of less favourable treatment.  Lord Justice Mummery observed, at page 4 of the transcript,

“Although an Employment Tribunal is less formal in its procedures than a court of law and is not bound by the rules of evidence, it must be satisfied that the complaint is proved, on the balance of probabilities, by the person who makes it.  In the absence of direct evidence on an issue of less favourable treatment or racial grounds, the tribunal may make inferences from other facts which are undisputed or are established by evidence. However, in the absence of adequate material from which inferences can properly be made, a tribunal is not entitled to find a claim proved by making unsupported legal or factual assumptions about disputed questions of less favourable treatment on racial grounds…….
……under section 1(1) of the Act of 1976 a tribunal which has no evidence of the treatment of an actual comparator is bound to enquire whether the Trust had treated [the complainant] less favourably than it “would treat other persons”….. In order to answer that question the tribunal must examine all the relevant actual circumstances ….and decide what inferences may properly be made on the balance of probabilities about the treatment of a hypothetical [comparator]….in the same circumstances.”

19	In his submissions to us Mr. Dean referred in particular to paragraph 83 and we agree with the criticisms he levelled at this paragraph in the Reasons.  Firstly, though recognising that the Respondent was relying upon a hypothetical comparator, they then identify that comparator as someone who could be either a hypothetical white specialist registrar in the same circumstances or “any other white employee employed by the Trust”.  This latter comparator was clearly erroneously identified as such, since the comparison does not compare like with like.  A white unqualified nursing assistant, for example, would not be a correct comparator for this Respondent.

20	Secondly, in the same paragraph, whilst the Tribunal describes itself as satisfied that the Respondent was treated less favourably than a hypothetical white specialist registrar would have been treated in the same circumstances, no explanation for that conclusion appears.  There is no analysis of the evidence being relied upon to justify it and no findings as to the primary facts found and inferences being drawn as to the treatment of the Respondent and treatment which would have been meted out to the hypothetical white specialist registrar in the same circumstances.  Indeed, it is impossible to detect from the findings of fact what evidence could have been relied upon to justify their conclusion on less favourable treatment.

21	The only reason given for the finding, which appears in the final sentence, is expressed to be that there is no white specialist registrar who has ever been suspended for this length of time or indeed ever been suspended.  We agree with Mr. Dean that, at this point, the Tribunal confused a comparison between an actual and a hypothetical comparator and, in so doing, erred in law.  The fact that there had not previously been a white specialist registrar in the same or similar circumstances as the Respondent was the reason why a hypothetical comparator was necessary in this case.  

22	Further, in our view, the fact that no white specialist registrar had previously been suspended did not, without more, entitle the Tribunal to conclude that the Respondent had been treated less favourably.  It may be a relevant factor from which an inference could be drawn in an appropriate case, but the Tribunal makes its finding, in relation to the hypothetical comparison relied upon, solely by reference to that one piece of actual evidence.  There is no attempt to examine all the relevant actual circumstances and decide what inferences if any it was appropriate to draw in relation to less favourable treatment of a hypothetical white specialist registrar facing the same charges.  

23	Nor is there any further analysis of less favourable treatment anywhere else in their Decision.  The reference in paragraph 101 to statistical evidence and the statement that:
“There is nothing in the evidence to suggest that this is a Trust which habitually treats its white doctors in the manner in which it treated Dr. Ayes”
 is, in our view, inadequate as a justification for their finding that the Respondent was treated less favourably than a white specialist registrar in the same circumstances would have been treated.  The relevant circumstances were that the hypothetical comparator was facing the same complaints as to professional and personal conduct as the Respondent.  The sentence referred to amounts to no more than an assertion, which is not supported by the evidence and findings of fact in this case.  The Tribunal has in our view made unsupported assumptions about less favourable treatment in the absence of adequate material from which inferences can be properly made.  This as the Court of Appeal made clear in Effa is an erroneous application of the statutory test.  It appears to us that this Tribunal, despite having reminded themselves that unreasonable conduct was irrelevant to the questions to be asked under the 1976 Act, nevertheless allowed itself to be influenced in deciding the issue of less favourable treatment by their earlier conclusion that the Appellants’ treatment of the Respondent really amounted to a breach of the implied contractual term of trust and confidence.  However, as Zafar makes clear, unreasonableness and unfairness on the part of an employer is irrelevant to the questions to be posed and answered under the 1976 Act.  

24	In addition, the reliance upon statistical evidence at paragraph 101 is in our view erroneous.  The Tribunal appears to have accepted the evidence of Professor Jones that the number of doctors suspended are too few to be able to draw any direct connection between race and the risk of suspension.  That being so, their finding, drawing upon that statistical evidence, that “….the fact remains that the only doctors who have been suspended in this Trust are from ethnic minorities” does not justify any inference being drawn about a difference in treatment with regard to the Respondent’s suspension.  

25	For these reasons the Tribunal erred in law in finding that the Respondent was less favourably treated than a hypothetical white specialist registrar facing the same charges in the same circumstances would have been treated.  We therefore allow this appeal.  We consider that the primary findings of fact in this case would not have permitted an inference of less favourable treatment to be drawn and that it was not therefore possible for the Tribunal to infer that the Appellants’ treatment of the Respondent was racially discriminatory.  The finding of racial discrimination cannot therefore stand.