Appeal No. EAT/0604/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 24 April 2002
Judgment delivered on 9 May 2002

Before
HIS HONOUR JUDGE PETER CLARK
MR D J HODGKINS CB
MR H SINGH

(1)	LONDON BOROUGH OF GREENWICH
(2)	SIMON TROTTER	APPELLANT

MS JACINTH BROWNE	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR P OLDHAM
(Of Counsel)
Instructed by:
London Borough of Greenwich
Legal Services
29-37 Wellington Street
Woolwich
London
SE18 6PW	
For the Respondent	MR W D PANTON
(Of Counsel)
Instructed by:
Messrs Stewart & Co
Solicitors
76 West Green Road
Tottenham
London
N15 5NS	

JUDGE PETER CLARK

1.	This is an appeal by the Respondents before an Employment Tribunal sitting at Ashford under the chairmanship of Mr John Warren against that Employment Tribunal’s decision, promulgated with Extended Reasons on 2 April 2001, upholding the Applicant, Ms Browne’s complaint of unlawful direct discrimination and victimisation contrary to the Race Relation Act 1976 (RRA).

Background
2.	The Applicant, who is black and of African-Caribbean origin, commenced employment with the 1st Respondent Council as an educational psychologist in September 1990.

3.	In 1996 she brought a successful claim of racial discrimination against the Council and its then Head of Psychiatric Services, Dr Booker.  That was a ‘protected act’ for the purposes of Section 2(1)(a) RRA.

4.	The instant complaint, presented by the Applicant on 27 September 1999, related to disciplinary proceedings taken against her by the Council and conducted by Mr Trotter, the 2nd Respondent below and Assistant Director employed by the Council, culminating in a final written warning.  That warning was later expunged on appeal to a panel of 3 senior officers of the Council.  The Applicant contended that her treatment at the hands of Mr Trotter during the course of those disciplinary proceedings amounted to both direct racial discrimination and victimisation.

The Employment Tribunal decision
5.	The Employment Tribunal sat over 5 days during May and November 2000.  On the last day, 21 November, the Employment Tribunal deliberated in private.

6.	The structure of the Employment Tribunal’s reasons, finally promulgated on 2 April 2001, falls into 3 sections, following an introduction which sets out the issues in the case.  First, there is, in chronological sequence, a statement of the primary facts found by the Employment Tribunal, running to 55 sub-paragraphs, at paragraph 5 of the reasons.  Next there is a statement of the law.  Finally and critically we think, the Employment Tribunal’s conclusions at paragraphs 10-15.  It is this final concluding section of the Employment Tribunal’s reasons which requires close attention in this appeal.

The Appeal
7.	It is convenient to deal with the submissions made by Mr Oldham and Mr Panton’s response under the following heads:

(1)	No evidence

Mr Oldham contended that the Employment Tribunal had made certain material findings of primary fact which were wholly unsupported by evidence.  That is a legitimate ground of appeal.  Piggott Bros Ltd v Jackson [1992] ICR 85, 92D (Per Lord Donaldson MR).  However, in that same case Lord Donaldson went on to highlight the need for chairman’s notes of evidence where such a ground of appeal is raised.  It may be otherwise where a perversity ground is raised on the basis of the Employment Tribunal’s findings of fact.  See Hawkins v Ball and Barclays Bank Plc [1996] IRLR 258.

8.	In this case no application was made for the chairman’s notes of evidence.  In these circumstances, having considered his position, Mr Oldham indicated that he would not pursue this ground of appeal.

(2)	Correct application of the law to the facts.

9.	We return to the structure of the Employment Tribunal’s reasons.  Mr Oldham suggests, with we think some force, that on its face the Employment Tribunal’s reasons appear to have been drafted in stages.  First, the primary findings of fact which give the appearance of having been agreed by the members of the Tribunal during their deliberations in Chambers on 21 November 2000.  That, it seems to us, is a perfectly proper approach.  That statement of the primary fact is quite unexceptionable.  Next, the summary of the law which may, as Mr Oldham suggests, have been taken off the word-processor.  As Mr Panton submits, the law is there correctly stated.  Finally, the conclusion section.

10.	It is here that we consider the Employment Tribunal’s reasoning runs into difficulties.  One of the points taken by Mr Oldham in this appeal is that there was unacceptable delay between the Employment Tribunal’s Chambers meeting and the eventual promulgation of the decision.  We are aware of the general, although not inflexible rule in the Immigration Appeal Tribunal, that decisions of immigration adjudicators should be delivered within 3 months, failing which the case will be reheard.  That is because such decisions are particularly fact-sensitive, often dependent on the credibility of the Applicant.  We do not consider that such a firm rule applies in the Employment Tribunal, although justice delayed may, in some cases, be justice denied.  Further, as Lord Hope of Craighead observed in Anyanwu v South Bank Students Union [2001] IRLR 305, para 37, questions of law in discrimination cases are often highly fact-sensitive.

11.	As the Court of Appeal have made it clear, notably in Chapman v Simon [1994] IRLR 124 and Martins v Marks & Spencer Plc [1998] IRLR 326,

(i)	it is necessary to answer the relevant statutory questions.  Thus, in the case of direct discrimination, two questions are posed; (a) was the Applicant treated less favourably than the Respondent treated or would treat other persons in the same circumstances (the relevant comparison) and (b) if so, was that less favourable treatment on racial grounds (the causation issue).  In the case of victimisation a different comparison is made, not on the basis of race, but a comparison between the Applicant who has done a protected act (as here) and one who has not.  The causation issue also differs. Was that less favourable treatment by reason of the fact that the applicant has done a protected act?  That need not be the sole reason for the treatment, but must be an important or significant cause, as this Employment Tribunal observed by reference to the speeches in Nagarajan v London Regional Transport [1999] IRLR 572.  For the purposes of both direct discrimination and victimisation the motives of the Respondent are irrelevant; the unlawful acts of the Respondent may be conscious or subconscious.

(ii)	In order to draw the inference of unlawful discrimination or victimisation, applying the guidance in King v Great Britain China Centre [1991] IRLR 513, as approved by the House of Lords in Zafar v Glasgow City Council [1998] IRLR 36, it is not enough to rely on an ‘intuitive hunch’ (Chapman. Para 43. per Peter Gibson LJ); there must be primary facts justifying the drawing of an inference of unlawful discrimination/victimisation.

12.	It is against that background that we look to see whether, as Mr Panton submits, the reasoning of the Employment Tribunal in their concluding section is sustainable.  In our judgment, for the reasons advanced by Mr Oldham, it is not.

13.	First, the relevant comparisons.  There are no findings as to whether the Applicant received less favourable treatment than an actual or hypothetical comparator (a) for the purposes of the direct discrimination complaint and (b) for the purpose of the victimisation complaint, those comparators not necessarily being the same.  It is not sufficient simply to find, as this Employment Tribunal did, that Mr Trotter acted unreasonably in his treatment of the Applicant during the disciplinary process.

14.	Secondly, the causation issue.  There are no findings which explain the Employment Tribunal’s conclusion that any assumed less favourable treatment was on racial grounds, given that the Employment Tribunal rejected the Respondents’ explanation for the treatment meted out to the Applicant.  As to the victimisation complaint, the Employment Tribunal merely observe, at paragraph 14 of their reasons, that the protected act (the previous claim brought by the Applicant in 1996) was “at the back of Mr Trotter’s and Mrs Tubbs’ minds”.  That does not, it seems to us, properly answer the causation issue under Section 2 RRA, particularly in light of the Employment Tribunal’s finding of fact at paragraph 5(51) that Mr Audibert, Head of Personnel, was anxious to ensure that any steps taken by the Respondents  would comply in all respects with the law and not give rise to further claims by the Applicant. Why did the Employment Tribunal conclude that Mr Trotter’s failure to give the Applicant copies of reports obtained from Mr Collins and Mr Holland, external advisors to be both racially motivated and an act of victimisation, whereas his conduct of the disciplinary hearing itself, of which complaint was made,  was ‘just inexperience’?

15.	In short, we cannot tell from the Employment Tribunal’s reasoning why these complaints and each of them succeeded.  That is, in our judgment, a fatal flaw vitiating this decision.

(3)	General perversity
16.	Mr Oldham submits that, based on the Employment Tribunal’s primary findings of fact, no reasonable Employment Tribunal could draw the inference of unlawful discrimination/victimisation in this case.

17.	We are not persuaded that this is so.  It seems to us that, upon a proper analysis of the statutory questions, it was open to the Employment Tribunal to reach a conclusion favourable to the Applicant on each of her heads of complaint.  The difficulty we have lies in our inability to discern from the Employment Tribunal’s final reasoning how they arrived at their conclusions.

Conclusion
18.	In these circumstances we have no alternative but to allow this appeal and remit the case for rehearing before a different Employment Tribunal.