Appeal No.UKEAT/0639/03/MAA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 26 March 2004

Before
HIS HONOUR JUDGE PETER CLARK
MR J R CROSBY
MISS G MILLS

MRS F MOYO	APPELLANT

TOWER HAMLETS CONSORTIUM	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	THE APPELLANT IN PERSON	
For the Respondent	MR D REES
(Legal Officer)
First Assist Group Ltd
Jasmine House
Kingston Stert
Chinnor
Oxon OX39 4NL	

SUMMARY

Practice and Procedure
Perversity

Race discrimination
Victimisation

Victimisation - conscious motivation - material finding of fact contrary to the evidence.

HIS HONOUR JUDGE PETER CLARK

1	This is an appeal by Mrs Moyo, the Applicant before the Stratford Employment Tribunal, against that Tribunal’s Decision promulgated with Extended Reasons on 12 June 2003, dismissing her complaints of racial discrimination and victimisation brought against her former employer, the Respondent, Tower Hamlets Consortium.  She is black.  

2	The original grounds of appeal were many and various, including allegations of bias levelled at the Tribunal Chairman, Ms Manley.  However, at a preliminary hearing held before a division presided over by Mr Justice Rimer, sitting on 28 November 2003, those grounds of appeal were reduced to one question of law, itself in two parts, on which the appeal was permitted to proceed to this full hearing with both parties present, all other grounds being dismissed at the preliminary hearing stage.  Accordingly our enquiry is limited to examining the proposition, encapsulated at paragraph 38 and following of the judgment delivered by Mr                    Justice Rimer, and in the Order of the EAT following the preliminary hearing which reads as follows:
“This appeal be set down for a full hearing on one ground of appeal only, namely:
That the Employment Tribunal failed to direct itself and/or to have regard to the consideration that discrimination within section 1(1)(a) of the Race Relations Act 1976 and victimisation within section 2 does not require proof of a conscious motive or intention, but may be committed by the alleged discriminator either consciously or unconsciously.  All other grounds of appeal are hereby dismissed.”

Direct Discrimination
3	The Tribunal’s self direction in law is to be found at paragraphs 12 - 14 of their Extended Reasons.  Reference is there made to the Court of Appeal’s guidance contained in King -v- Great Britain China Centre [1991] IRLR 513 and Anya -v- University of Oxford [2001] IRLR 377 and that of Lord Browne-Wilkinson in the House of Lords case Zafar -v- Glasgow City Council [1998] IRLR 36.  Like Mr Justice Rimer’s division we can see no patent misdirection in the Tribunal’s approach there set out.

4	Did the Tribunal misapply the law?  Mrs Moyo appears before us in person as she did below.  Her written Skeleton Argument in support of her appeal focuses on the result of the Tribunal’s reasoning rather than the reasoning itself. - a result with which she profoundly disagrees.  However the question for us is whether the Tribunal’s approach is wrong in law.  If not, we cannot interfere with that result.  

5	The Tribunal express their findings on this part of the complaint, under the heading “Conclusions” at paragraphs 16 - 23 of their Reasons.  First, the question of difference in treatment between the Applicant and an actual or hypothetical comparator.  They considered each of the Applicant’s factual complaints of alleged less favourable treatment, as enjoined to do by Lord Justice Sedley in Anya.  They found as follows:
(1) that the Applicant had not received less support from the Director, Amanda Johnson, in her capacity as Team Manager than did any other member of staff.

(2) There was no less favourable treatment of her in terms of insubordination or abuse by a junior member of staff, Miia Tolvenan, nor in respect of her complaints about that person, which were dealt with promptly.  

(3) Her factual complaint that her grievance was handled unfairly by the Respondent was not made out.  Thus this basis for an allegation of less favourable treatment failed.

(4) The Tribunal accepted that the Applicant’s grievance appeal was dismissed without a hearing.  That gave rise to potentially less favourable treatment when compared with a hypothetical white comparator. The Tribunal concluded, however, that a hypothetical white manager would have been treated in the same way.  The Applicant had been afforded an opportunity to appeal.  She failed to supply grounds of appeal, although requested to do so.  There was no evidence to suggest to the Tribunal that in these circumstances a white manager would have been treated differently, that is, would have been granted an appeal hearing.  

(5) As to her complaint that under the probationary process whilst she, the Applicant, was not confirmed in post a white comparator, Christine Saddle was.  That was the fact and the Tribunal acknowledged that there was here a difference in treatment and a difference in race.  What was the Respondent’s explanation for that difference in treatment?  First, that the Respondent had found difficulties with the Applicant’s management style; further, the Applicant had not attended an earlier initial assessment in March 2002, so that she had not gone through the same two-stage assessment as had her comparator.  It seems that the Applicant had refused to attend supervision meetings with the Director, who was to carry out the final assessment.  The Tribunal accepted the Respondent’s explanation (see King).  

(6)  Next, the Tribunal rejected the Applicant’s factual case that she had been excluded from external meetings by the Director.  Accordingly no question of less favourable treatment here arose.

(7)  As to the Applicant’s medical suspension, the Tribunal found on the facts that the Respondent had reasonable grounds for believing that the Applicant was sick and that on the same facts a hypothetical white manager would also have been suspended.  There was no basis for finding a difference in treatment.  

(8)  Finally, as to the Applicant’s contention that her dismissal constituted less favourable treatment on racial grounds, the Tribunal examined the Respondent’s proffered reason for dismissal.  It was that the Applicant, who had been displaying symptoms of sickness and was on medical suspension, then refused to give any information, either through her General Practitioner or the Occupational Health Department about her health.  The Tribunal concluded that a hypothetical white manager would also have been dismissed.  On a separate point the Tribunal noted that, contrary to their own procedures, the Applicant was not informed by the Respondent of her right of appeal in the letter of dismissal.  The Tribunal accepted the Respondent’s explanation that that was an error and were not persuaded that a white manager would have been differently treated.  The same error would have been made (see Zafar).  Where then lies the error in the Tribunal’s approach in law to the question of unlawful direction discrimination?  Having carefully reviewed the concerns expressed by our colleagues at the preliminary hearing we are unable to detect any question mark other than in relation to the Tribunal’s handling of the question of the Respondent’s motive.  We shall consider that point more fully when we turn to the complaint of victimisation, however in relation to direct discrimination we are quite unable to see any error of law within the framework of the question posed in the Order made following the preliminary hearing.  We accept Mr Rees’ submission that, on analysis, the Tribunal’s approach to this part of the claim is wholly in accordance with their self-direction, itself unimpeachable at law.  

Victimisation
6	The Tribunal’s self direction on victimisation is to be found at paragraph 14 of their Reasons; their conclusions on this part of the claim at paragraphs 24 - 26.  

7	It is correct to say that in Nagarajan -v- London Regional Transport [1999] IRLR 572 the House of Lords, disagreeing with the Court of Appeal in that case and the earlier case of Aziz -v- Trinity Street Taxis Ltd [1988] IRLR 204 (CA), held that it was not necessary for the Applicant to show, in a claim of victimisation, that the Respondent’s actions complained of were consciously motivated by the protected act.

8	In the present case the first protected act was the Applicant’s first complaint to the Employment Tribunal which preceded both her medical suspension and her dismissal in time.

9	Thus the question for the Tribunal was whether (a) the medical suspension and/or (b) the dismissal amounted to an act of unlawful victimisation.  That required the Tribunal to answer the question, as Mrs Moyo submitted, and Mr Rees agreed, did the Respondent treat the Applicant less favourably than it would treat a person who had not done the protected act because of his knowledge of the protected act done by the Applicant (here, the lodging of her first form IT1) see Lord Steyn in Nagarajan paragraph 41.  Conscious motivation is not a necessary ingredient of the statutory tort (per Lord Nicholls, paragraph 18).  

10	With that guidance in mind we turn to this Tribunal’s approach, noting that explicit reference was not made to Nagarajan, nor to the principle that conscious motivation on the part of the employer is not a necessary component of a successful complaint of victimisation under section 2 as it is equally not required in a complaint of direct discrimination under section 1 of the Race Relations Act 1976.  

11	At paragraph 35 of their Reasons the Tribunal ask themselves the question whether a hypothetical comparator, that is a person who had not carried out the protected act, would have been treated differently from the Applicant, both as to medical suspension and to dismissal, and treated in a way more favourable.  

12	True it is that in answering that question the Tribunal asked themselves whether the short gap in time between the Respondent learning of the Applicant’s first complaint to the Tribunal on 16 July 2002 and her medical suspension on 19 July indicated a possible discriminatory motive.  However, they then go on to find that the reason for the Applicant’s medical suspension was that she herself was indicating that she was ill on 19 July.  It was not her having done the protected act, that is presenting her first Tribunal complaint, including complaints of direct race discrimination and victimisation.  Can that finding stand?  Viewed alone we allow the possibility that it could.  Mrs Moyo told us that it was her case below that the Respondent had consciously treated her in the way that they did by suspending her on medical grounds and then dismissing her because she had lodged her first Originating Application on 11 July 2002.  That positive case had to be considered; the question is whether in rejecting that case the Tribunal then fell into the error identified in Nagarajan of requiring her to prove conscious motivation on the part of the Respondent in order to establish victimisation.  

13	We consider that the Tribunal may have fallen into that error, mainly due to a significant factual error made in paragraph 26 of their Reasons.  There, in concluding that there was no causal connection between the Respondent’s decision to dismiss and the earlier protected act, the first Originating Application, the Tribunal say that the Respondents concentrated at all times on the potential difficulties with the Applicant’s ill-health and at no time referred to her application to the Employment Tribunal.  A very lengthy and detailed disciplinary hearing made no mention of it.  There was nothing in the evidence to suggest that the protected act played any part in the decision to dismiss.  

14	Two matters concern us.  The first is that the Tribunal appeared to consider that the absence of express reference to the protected act pointed to no victimisation, when it will often be a matter of inference.  The second is that in fact in the notes of the disciplinary hearing held on 19 September 2002, at which the Applicant was not present, there are no less than five references to the Tribunal proceedings instituted by the Applicant in July.  Such reference was made both by the Director, Ms Johnson, who presented the management case and by Councillor Williams who, with Reverend Gingell, made up the panel hearing the case.  It is clear that those earlier proceedings were very much in the mind of both people.

15	Whether or not that evidence pointed conclusively to the necessary causal connection is not for us to say.  What is clear is that the Tribunal did not simply overlook those references, it was in our view, contrary to Mr Rees’ submission, an important part of their reasoning that no mention of the Tribunal was made at the disciplinary hearing.  

16	In these circumstances we are driven to conclude that the Tribunal made a material finding of fact which was not simply unsupported by any evidence but was contrary to the evidence before them.  That is an error of law, as Lord Donaldson, M.R. pointed out in Piggott Bros Ltd -v- Jackson [1992] IRC 85, 92D.  Further, we are not persuaded by Mr Rees that the Tribunal properly directed themselves as to the correct approach to section 2 of the Act as revealed by the House of Lords in Nagarajan.

17	For these reasons the Tribunal’s decision as to victimisation cannot stand and is set aside.  The appeal is allowed to that extent only.  There are no grounds for interfering with the findings as to direct race discrimination.  The question then arises as to what course we should now take.  Mr Rees urges us to remit the victimisation claim to the same Employment Tribunal; Mrs Moyo, having complained that she did not receive a fair hearing on the last occasion, asks us to remit the case to a fresh Tribunal.  

18	We prefer to take the course advanced by Mrs Moyo, appreciating that this will necessitate some repetition of the evidence.  On balance we consider that the perception of fairness, rather than any actual fear of unfairness before the first Tribunal, requires us to remit the victimisation complaint to a fresh Tribunal for determination in accordance with the Nagarajan approach. We so direct.