Appeal No. UKEAT/0592/10/SM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 23 May 2011

Before
HIS HONOUR JUDGE RICHARDSON
MRS M V McARTHUR BA FCIPD
MR P M SMITH

MR E KOMENG	APPELLANT

SANDWELL METROPOLITAN BOROUGH COUNCIL	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MS JENNIFER EADY
(One of Her Majesty’s Counsel)
Instructed by:
Free Representation Unit
6th Floor
289-293 High Holborn
London
WC1V 7HZ	
For the Respondent	MR JOHN LIVESEY
(of Counsel)
Instructed by:
Sandwell Metropolitan Borough Council
Sandwell Council House – Legal Services
Freeth Street
Oldbury
Shropshire
B69 6DE	

SUMMARY
RACE DISCRIMINATION – Direct
PART TIME WORKERS

Discrimination on grounds of race and/or part-time status – whether Tribunal addressed the Claimant’s case and gave adequate reasons in respect of an alleged failure to afford the Claimant training, including in particular attendance at an NVQ course.

Held:  On this issue the Tribunal did not address a significant part of the Claimant’s case and did not give adequate reasons.

HIS HONOUR JUDGE RICHARDSON 

1.	This is an appeal by Mr Eugene Komeng (“the Claimant”) against a judgment of the Employment Tribunal sitting in Birmingham (Employment Judge Roper presiding) dated 11 May 2010.  By its judgment the Tribunal rejected the Claimant’s complaints that he had been subjected to unlawful discrimination on the grounds of his race and his part-time status by his employer Sandwell Metropolitan Borough Council.

2.	At the hearing before the Tribunal the Claimant alleged that he was the subject of unlawful discrimination in three main respects: the provision of training; the provision of supervision; and the provision of a reference.  Initially his appeal was put more widely, but following a preliminary hearing at which the Claimant was represented by Jennifer Eady QC he was given permission to amend his Notice of Appeal to focus on the Tribunal’s reasoning in respect of the provision of training, and in particular on his allegation that the Respondent failed to ensure that he was placed on an NVQ course within a reasonable time.

3.	Put briefly, the Claimant’s argument is that the Tribunal failed sufficiently to address the specific complaints which the Claimant made relating to the provision of training and to apply the statutory tests to those specific complaints; further the Tribunal should have found that the Claimant was treated less favourably than his comparators in those specific respects, and therefore ought to have found that the burden of proof shifted to the Respondent to show that the difference in treatment was not on the grounds of race or part-time status.

The factual background
4.	The Respondent owns and manages Grafton Lodge, a residential home for older people with mental health needs.  The Claimant comes from Ghana; he describes himself as black and British.

5.	On 6 July 2006 the Claimant began work for the Respondent as a care assistant, working part-time covering evening shifts amounting normally to 15 hours per week.  He also worked overtime during the week on a regular basis.   He was, we were told, the only black care assistant at Grafton Lodge.  His line manager was Denise Miller until the latter part of 2007 and thereafter Margaret Underhill.

6.	The Respondent provided induction training for new care assistants.  This training was mandatory unless the care assistant had care experience and up to date qualifications.  The induction training lasted for 5 days and there was in addition an induction pack which the employee was required to work through, normally within the first 6 months of employment.  Mandatory induction training was provided by an organisation known as Transform Sandwell.

7.	Other training opportunities were not compulsory.  One opportunity was to take the NVQ level 2 in care.  This was a valuable qualification for a care assistant.  The NVQ was provided by the Crest Training Team at Oldbury.  There were also courses on deaf and blind awareness and on dementia and mental health needs.

The NVQ Level 2 – the Claimant’s case
8.	The complaint upon which the Claimant’s appeal focuses relates to the NVQ level 2 in care.  It should be noted, however, that he also complained that his induction training was not completed for nearly 12 months and that he was not afforded opportunities to do other courses to the same extent as other care assistants.

9.	The complaint concerning the NVQ level 2 course was at the forefront of his claim form.  He said:

“I had been requesting to be enrolled on NVQ2 in care for almost 3 years, my last request made on 4 January 2009.  Been given many excuses notably that I am on a waiting list.  On 20 April 2009 whilst having a chat with a colleague I found out he and another lady had been on the course.  I was employed on care however before these two colleagues are and hence felt aggrieved.  These colleagues are white British and work full time.   I believe I have been discriminated as a result of my colour and also the fact that I work on weekends only.”

10.	Subsequently he identified the two comparators as Mr Cotterill and Ms Sharp.

11.	By the time of the Tribunal hearing records had been disclosed which confirmed the following.

12.	The Claimant asked to do the NVQ Level 2 at a supervision on 24 December 2006.  It was recorded that he had been nominated for the course at a supervision on 20 January 2007.  He raised his wish to do the course again at supervisions on 12 August 2007, 12 April 2008, 7 June 2008 and 4 January 2009.  At the supervision on 7 June 2008 he was told that he was on a waiting list.  At the supervision on 4 January 2009 he said that he felt he had been passed by.  On 15 May 2009 he raised a grievance which included complaint about lack of training opportunities.  At a grievance meeting on 22 May 2009 he was told the Respondent would look into the question of his NVQ course.  He was subsequently told that the NVQ team appeared to have mislaid his application form.  He was given a new application form to complete and told he would be given priority.  The application form was received by the NVQ team on 6 June 2009.  He began the course in October 2009.

13.	The Claimant’s comparators were Mr Cotterill and Ms Sharp.  They worked longer hours than the Claimant.  Mr Cotterill was a carer driver.  He asked to go on the course in August 2008 and started it shortly afterwards.  Ms Sharp was a care assistant.  She asked to go on the course in July 2007 and started it March 2008.  She, like the Claimant, was supervised by Ms Underhill.

14.	The Claimant, in his witness statement for the hearing, referred to “two white full time employees managing to get on the course within months of requesting to be enrolled on it”.   He referred to the occasions when he mentioned the matter and said:

“Not once on any of those occasions was I given an application form to fill or did management come back telling me why on the previous requests nothing concrete had been done about it ....
By not giving me an application form to fill in in the first place as already mentioned above, I was disadvantaged with regards to the selection process.”

15.	The Respondent gave disclosure of application forms for the NVQ course during the relevant period.  There was no application form relating to the Claimant prior to June 2009.  The Respondent called Ms Jane Nock, who managed the Crest Training Centre, as a witness.  She said that she operated a booking in system for applications and that no application was booked in until June 2009.

The NVQ Level 2 – the Respondent’s answer
16.	The Respondent’s case was that the Claimant was “nominated” for the NVQ level 2 course in January 2007, in the sense that the Claimant was then added to a list of people wishing to attend the course.  As Mr Livesey explained the Respondent’s case to us, the Respondent was not in a position to say that an application was ever completed or sent off for the Claimant.  Certainly there was no reason to identify any particular date when an application was sent off.

17.	The Respondent’s case was that there was general inefficiency in the processing of NVQ level 2.  Mr Livesey pointed to examples of other employees who wished to go on the course but were not put on it.   He identified in particular Ms Headley and Ms Wilkes by reference to documents in the bundle (the Tribunal did not refer to them).  He submitted that the Tribunal’s reasoning was sufficient to tell the Claimant why he had won and lost on the training issue.

The Tribunal’s reasons
18.	It is important to keep in mind that the Tribunal had issues other than training to consider, and that the NVQ was only part of the training issue.

19.	Before turning to the Claimant’s specific complaints, the Tribunal described the forms of training available and continued as follows:

“11. The managers at Grafton Lodge had access to a central training resource which provides training to the respondent’s staff, and those from other Councils.  Training was provided in response to an application form which required signed authority from a manager.  We have heard from Mr Downing, who is a Learning Development Officer employed by Transform Sandwell, a partnership between the respondent Council and BT Liberata.  In 2008 he succeeded Mr Houghton who left after long term sickness absence.  Unfortunately this created a considerable backlog from 2006, and a substantial problem in providing training.  Mr Downing has worked hard to remedy the position, but between 2006 and 2008 there were clearly problems for Grafton Lodge, and others of the respondent’s care homes, in securing training for their staff.  The position was clearly unsatisfactory, and applications during that time appear to have been either ignored or lost.  In addition the specialist trainer for the Deaf Blind Awareness course took extended sickness and then maternity absence and never returned.  The respondent had no system in place between 2006 and 2009 to check whether applications submitted were accepted and being processed, but this was introduced following these training difficulties.”

20.	We have quoted this paragraph, but it is important to keep in mind that most of what is said here does not apply to the NVQ issue.  Applications for the NVQ course did not go to the facility which was run by Mr Houghton and Mr Downing.  That facility was concerned with mandatory training and perhaps with some other voluntary courses.   As we have said applications for the NVQ 2 course went to the Crest Training Centre at Oldbury.   The only sentence in this paragraph which has any potential relevance to the NVQ issue is the last: there was no system in place to check whether applications submitted were accepted and being processed.

21.	As regards the NVQ course, the Tribunal found:

“14. The claimant started the NVQ Level 2 training during 2009.  He had requested it and had been nominated for attendance in January 2007, and his application was submitted in about June 2007.  His managers applied on his behalf as promised.  Unfortunately the application was never properly processed and was not followed up.  It became the victim of the respondent’s sometimes disorganised and unsatisfactory training regime which prevailed at that time.”

22.	As regards comparators, the Tribunal said:

“16. We have considered the training records of a number of fellow employees to which we were referred and we find that they were broadly comparable to the claimant’s.  There is nothing striking by way of comparison between the claimant’s training record and those of his fellow employees.  It is true that two full-time white employees, namely Lee Cotterill and Kath Windle were provided with some training which the claimant did not receive, or otherwise received some training more promptly than the claimant.  It is equally true that other full time and/or white employees fared much worse than the claimant in the provision of training during this time.  This includes T Hough, S Parsonage and D Lloyd.”

23.	The Tribunal went on to summarise the relevant law, referring to relevant provisions of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 and the Race Relations Act 1976.  The Tribunal identified the provisions within the legislation which provided for the burden of proof to shift to the respondent: regulation 8(6) and section 54A.  It then continued as follows.

“37. In this case the claimant has failed to prove any facts which indicate that he has been treated less favourably on the grounds of either his part-time status or his race.  In short he was not treated less favourably in connection with training.  His training was broadly comparable with others.  It was slightly later and less extensive than two white and full-time employees, but equally it was better and more prompt than other full time or white employees.  All of this was against a background of disorganised administration and delays in training which have since been remedied.  There is no evidence that his treatment relating to supervision following continued misconduct was any less favourable than any actual or hypothetical comparator who was full time or from a different racial group.  As to the reference he suffered no detriment, it was not in breach of the DPA or any policy, and it was even generous in the circumstances.”

Submissions
24.	On behalf of the Claimant, Ms Eady QC submits that the Tribunal did not deal adequately with the Claimant’s case concerning training, as illustrated by the NVQ issue.   In her submission, his complaint was that he was continually overlooked for NVQ training between December 2006 and June 2009 by management at Grafton Lodge.

25.	She submits that the Tribunal has not addressed his complaint about the initial request in December 2006.  He said that he was never even asked to complete an application form for the NVQ training.  The Tribunal has made no finding about this.  It has apparently found that a form was sent in June 2007, but it has not explained how this could have occurred if he was not asked to complete a form.

26.	She further submits that the Tribunal failed to address its mind to the question why nothing was done in respect of his subsequent references to the matter in the course of supervision during 2007, 2008 and 2009.

27.	She further submits that the Tribunal has not examined at all the circumstances of the Claimant’s comparators.  Those comparators were relied on specifically in relation to the NVQ claim.  There is no assessment of their appropriateness as comparators.  It is essential, she submits, to assess them as comparators for the NVQ claim.  It is not sufficient to point to other full time or white employees who fared much worse than the Claimant in terms of training.

28.	On behalf of the Respondent, Mr Livesey submits that the Tribunal has dealt sufficiently with this issue.  He submitted general inefficiency coupled with bad luck was the reason why the Claimant’s request to undertake the NVQ 2 was not answered; and there was ample evidence on which the Tribunal could reach this conclusion.  These facts indicate that the practices and procedures concerning training could be improved; but are not material from which the Tribunal could conclude that the management discriminated against the Claimant on grounds of race or part-time working.

29.	He further submits that the Tribunal was not required to make any more detailed findings concerning the two comparators.  It was, moreover, entitled to take into account that others apart from the Claimant who were white and full-time had problems getting on the course: he points to Jill Headley a full-time worker, who asked for NVQ training in November 2006 and still had not received it by 2010, and Linda Wilkes, whose training was delayed for 4 years.  He also submitted that there was no evidence that the Claimant’s comparators were full-time workers for the purposes of the 2006 Regulations.

The applicable law
30.	The following are the principal relevant provisions of the Race Relations Act 1976.

“1 Racial discrimination
(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.
….
3 Meaning of ‘racial grounds’, ‘racial group’ etc
(4) 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) or (1A) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.
…
4 Applicants and employees
(2) It is unlawful for a person, in the case of a of a person employed by him at an establishment in Great Britain, to discriminate against that employee –
(b) in the way he affords him access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them.
…
54A Burden of proof: employment tribunals
(2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent –
(a) has committed such an act of discrimination or harassment against the complainant, or 
(b) is by virtue of section 32 or 33 to be treated as having committed such an act of discrimination or harassment against the complainant,
the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed, that act.”

31.	The following are the principal relevant provisions of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000.

“5 Less favourable treatment of part-time workers
(1) A part-time worker has the right not to be treated by his employer less favourably than the employer treats a comparable full-time worker –
(a) as regards the terms of his contract; or
(b) by being subjected to any other detriment by any act, or deliberate failure to act, of his employer.
…
8 Complaints to employment tribunals etc
(6) Where a worker presents a complaint under this regulation it is for the employer to identify the ground for the less favourable treatment or detriment.”

32.	It should be noted that under the Regulations there must a comparable worker.  Reg 2, which we need not set out in this judgment, makes detailed provision for the circumstances in which a worker will be a comparable full-time worker.  Under the Race Relations Act, a comparator may be actual or hypothetical.

Discussion and conclusions
33.	Our starting point, which we must always keep in mind, is that the Appeal Tribunal’s jurisdiction extends only to the correction of errors of law.  If the Tribunal has applied the law correctly, dealt with the issues which it was required to address, given reasons which are sufficient in law, and made findings of fact which are tenable, then the Appeal Tribunal has no jurisdiction to intervene at all.

34.	On the question of reasons, the Tribunal is required to explain how it determined the issues before it.  There is no hard and fast rule as to the amount of detail a Tribunal must give.  It is, however, essential that the reasons should tell the parties why they have won or lost, giving a sufficient account of the facts and the reasoning for an appellate court to see whether the law has been correctly applied and the issues dealt with.  Where issues of discrimination arise, it will be particularly important for a Tribunal to set out with care its findings of fact and follow them through in its reasoning to reasoned conclusion: Anya v University of Oxford [2001] IRLR 377 at paras 24-25.   The Tribunal must demonstrate how it got from its findings of fact to its conclusions: Tran v Greenwich Vietnam Community [2002] IRLR 735 at para 17.

35.	It is, we think, unfortunate that the Tribunal has dealt compendiously with different types of training.  As we have seen, mandatory training and perhaps some other forms of training were the responsibility of Transform Sandwell.  Applications for NVQ level 2, on the other hand, went to the Crest Training Centre.  Different considerations apply to each.  In paragraph 11 of its reasons, therefore, the Tribunal for the most part deals with considerations which have nothing to do with the failure to process his level 2 NVQ.  Only the lack of a system for checking upon applications once made was potentially applicable to level 2 NVQ.

36.	It is, we think, noticeable that, in so far as the Tribunal deals with the NVQ level 2 issue as a discrete issue, it deals with it very briefly.  The Claimant’s case is summarised in a sentence, as being that his requests to undertake Level 2 NVQ were not processed.  The only findings specific to the processing of the Level 2 NVQ are in paragraph 14 of the reasons.

37.	We have reluctantly reached the conclusion that these very brief reasons do not do justice to the Claimant’s case.  We will now explain why.

38.	We begin with the period up to the latter part of 2007.  During this period the Claimant’s line manager was Denise Williams, who was not called as a witness.

39.	The Claimant’s case was that he was never given and never completed an application form for the Level 2 NVQ until June 2009; and the Respondent never produced such a form or even a copy of such a form.  It is plain, however, that the form was designed for the applicant to complete with a countersignature from the manager.  The Tribunal has not said whether it accepted his evidence in this respect, and if so what conclusion it drew as to why he was not given a form to complete.

40.	The Claimant did not accept that an application form was ever sent to Crest Training.  We have already said that the Respondent could not produce a form or copy form, and that Ms Nock, who ought to have received the form, denied receiving it.  The Tribunal found that a form was sent in June 2007; but the Tribunal has not explained why it reached this important finding.  It is particularly puzzling that the Tribunal made an express finding as to the month in which the form was delivered.   Mr Livesey could not suggest any basis for finding that the form was delivered in June 2007 or at all.

41.	The Claimant’s case then was that he made numerous subsequent requests to go on the NVQ 2 course.  We have mentioned those which are supported by references in the documents.  The Tribunal made no findings at all about these subsequent requests.  It did not evaluate the evidence of Ms Underhill, to whom most of the requests seem to have been made.  It did not say what her reason was for taking no action upon the requests, whether it accepted the reason she gave, and whether it found that the reason she gave was or was not consciously or unconsciously infected either by considerations of the Claimant’s race or status.

42.	We turn then to the question of comparators.  The Claimant’s case was that he was treated less favourably by comparison to his named comparators (as well as a hypothetical comparator for the race discrimination claim).  The Tribunal has not addressed the similarities and differences between the position of the Claimant and the position of his named comparators.    It is particularly striking that Ms Sharp’s case is not mentioned when she was also a care assistant supervised by Ms Underhill, and her request to go on the course was answered within a few months.

43.	We think the explanation for the Tribunal’s failure to deal with the comparators may lie in the finding that the Claimant’s application was lost after being made in June 2007.   This would be an obvious difference between the circumstances of the Claimant and the circumstances of his comparators.  But that finding (as we have already said) is itself unexplained.  Even then, on the Tribunal’s findings, there would be a 6 month delay between December 2006 and June 2007 which is not addressed and to which the treatment of the comparators would be relevant.  The Tribunal was entitled to take into account other potential comparators put forward by the Respondent, but not at the expense of considering and making findings concerning the Claimant’s comparators.

44.	Finally we do not find it altogether easy to be sure to what the Tribunal referred when it said that the application “became the victim of the respondent’s sometimes disorganised and unsatisfactory training regime”.  As we have said, processing the NVQ 2 application had nothing to do with the state of affairs at Transform Sandwell which the Tribunal described in paragraph 11 of its reasons. If the Tribunal considered that there was disorganised and unsatisfactory administration at Grafton Lodge or elsewhere, it has not said so.

45.	Tribunals should, we think, take care before accepting an explanation that the reason for less favourable treatment (if proven) lies merely in general poor administration.  There is always the risk that poor administration masks real disadvantage to a particular group or a particular individual on prohibited grounds.  In this case, for example, Mr Cotterill and Ms Sharp, the Claimant’s named comparators, did not suffer any less favourable treatment by reason of poor administration.  It is important to examine carefully why his various requests to go on the course were not addressed.

46.	For these reasons the appeal will be allowed and the issue of training remitted to a fresh Tribunal for rehearing.  Although the submissions on this appeal have been concerned mainly with the NVQ 2 course, we think that, since the Tribunal dealt with training compendiously, the only safe course is to remit the whole issue of training for reconsideration.  In all other respects the Tribunal’s decision will stand.

47.	The question whether Mr Cotterill and Ms Sharp were full time employees for the purposes of the Part-time Workers Regulations should be considered by the Tribunal hearing the remitted claim.  Contrary to Mr Livesey’s submission, the issue is plainly raised by the Claim Form taken with the naming of the comparators in the Claimant’s further details dated 31 January 2010; (and it is mentioned in the Claimant’s statement which we have quoted).