Appeal No. UKEAT/0182/06/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 17 July 2006

Before
HIS HONOUR JUDGE SEROTA QC
MRS C BAELZ
MS P TATLOW

QUEENSCOURT LTD	APPELLANT

MISS N NYATEKA	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	Dr Laxman Varsani
(Barrister)
Instructed by:
Queenscourt Ltd
30 Corporation Street
Rotherham
S60 1NG	
For the Respondent	Mr Alastair B Hodge
(of Counsel)
Instructed by:
Messrs Howells Solicitors
33 Love Street
Sheffield
S3 8NW	

Summary
Race discrimination – Direct – Injury to feelings
ET correctly on evidence found harassment on grounds of race and also discriminatory conduct.  However, certain findings by the ET as to discriminatory conduct in the conduct of an investigation into the Claimant's grievance were not justified by the evidence and on the evidence that conduct did not appear to have been discriminatory.  By agreement compensation for  injury to feelings reduced from £1500 and £1250.

HIS HONOUR JUDGE SEROTA QC

1.	This is an appeal by the Respondent employer, Queenscourt, against the decision of the Employment Tribunal at Sheffield of 13 December 2005, Mr R L Williams was the Chairman of the Tribunal.  The Claimant had claimed that she had been discriminated against on the grounds of her race and that she had suffered harassment.  The Employment Tribunal accepted both of these claims but also found that she had not been dismissed as the Claimant claimed.  The matter was referred to a full hearing by the President, Elias J on 10 February 2006.  There was a cross appeal by the Claimant seeking to upset the finding that she had not been dismissed, but that was disposed of under rule 3 of the Employment Appeal Tribunal rules of procedure by the President and that matter has not been pursued.  

2.	We have had the benefit today of hearing Dr Varsani, a consultant, appearing on behalf of the Respondent employer and Mr Hodge for the Claimant.  May we start our judgement by expressing our gratitude to both of you for the succinct and economical way in which you have helped us both with your written submissions and also with your oral submissions.  If all cases were dealt with in this way, we would have a lot more time on our hands. 

3.	The factual background of this matter is, and we take this from the decision of the Employment Tribunal, that the Claimant is a black female of Zimbabwean origin.  The Respondent is a company that holds a number of franchises and therefore operates restaurants both Kentucky Fried Chicken and Pizza Express.  It has an equal opportunities and harassment policy which is set out in its handbook which forms part of the staff conditions of employment.  The Claimant was employed from about June 2003 until 2 January 2004, mainly in the Haymarket, Sheffield Kentucky Fried Chicken restaurant, as a team leader.  It is right that we should say something about the working conditions as found by the Employment Tribunal and as set out in paragraph 4 of its decision.  The atmosphere was good and friendly, the staff got on well enough together and there was a good deal of friendly banter.  Most of the staff members were young, some were students working part time and there was in general quite a jovial atmosphere.  Some of the banter, the Employment Tribunal considered, might appear to some what they regarded as “stayed individuals” as rather ribald.  The participants were robust in their remarks and on occasions black members of staff, by which the Employment Tribunal included those each of Eastern ethnic origin, would call one another 'nigger' or 'paki' and female members referred to one another as 'bitch'.  However, the Employment Tribunal was told that it was not permissible for white persons to use those words or for those from ethnic minorities to refer to their white colleagues in similar disparaging ways.  According to one of the witnesses called by the Claimant, Mr Ezekah Sinclair, it had more to do with friendship then racial colour and to a large extent was  dependent on everyone’s mood at a particular time, for example whether the atmosphere on the day in question was conducive to such banter.  

4.	As we understand the matter the Claimant worked part time and also spent time working in a BT call centre.  We believe that there were 8 staff employed at the Haymarket branch, a number of whom, as we have said, including the Claimant were part time.  What has given rise to these proceedings relates to a fairly unfortunate incident that took place on 11 November 2004:-

	“5.	Ben Adlam, the manager, did not himself engage in such banter as a general rule.  From what we were told he was well liked and respected and enjoyed a perfectly satisfactory relationship with his ethnic minority colleagues many of whom he had interviewed and engaged, trained and, in some cases, promoted.
6.	On 11 November 2004 the claimant attended work and discovered that Mr Adlam, who should have been taking a day off, was present to attend a management meeting.  The claimant as a member of the management team herself knew nothing whatsoever about it.  The claimant was and had been concerned about problems relating to her pay and on 11 November and in the week prior thereto had expressed those concerns to Ben Adlam.  He believed she had been paid correctly but said he would look into it.  The claimant was still somewhat disenchanted when she spoke to him on 11 November and at the same time raised with him the subject of the meeting that was to take place, the meeting she knew nothing about and to which she had not been invited.  She asked Mr Adlam directly whether she might attend and, according to the claimant, he said ‘No’ and made plain that he was not keen for her to attend.  Mr Adlam’s version was that he asked whether, if she were to come, she would allow the meeting to follow its agenda rather than continue to raise issues relating to her wages.  From his point of view it was all done in a jocular vein, a point of view which was certainly not shared by the claimant.  The conversation continued along these lines.  The claimant asked why Ezekah was invited to the meeting and not herself and Mr Adlam, she said, responded by saying “maybe it’s because I like Ezekah better than you”.  When she persisted Mr Adlam, according to the claimant, retorted “maybe I am being racist to a black woman, the lowest of the low’.  Mr Adlam’s version was that he had never said “the lowest of the low” or used the word “racist”.  He did however acknowledge that he had said “maybe it’s because your black” or words to that effect.  He told the claimant afterwards that he had been joking and that he had not meant to cause offence.  The claimant who was not all amused felt very degraded and reported the matter to Sue Crabtree who was one of the area managers.  She took the rest of the evening off and went home.  There she wrote out her account of what had taken place.  She was, she said, very upset.”

5.	The Claimant was clearly distressed as the Employment Tribunal found.  Mr Adlam was prepared to apologise, although he was not prepared to accept the version of the conversation in its terms as put forward by the Claimant.  He did however admit to having said something like, “maybe it’s because you are black”, it is also right to say that evidence was given by one of the  Claimant’s colleague who was also black, a Mr Mateyu Sisiyu, that the Claimant had perhaps misunderstood what Mr Adlam had said.  The Respondent took steps to investigate.  She was not invited to work during the course of the investigations, she was never formally suspended from work but she was unquestionably not paid for her absence and this is said to have been an administrative error.  She treated herself as though she had been suspended but Mr Adlam, although on holiday for some of the period, certainly returned to work on or about 24 November and continued working up until the date of 30 November when a letter was sent to the Claimant setting out the results of the investigation into her grievance.  She was invited to return to work, we think on 30 November, and she was told that if she did not wish to work at the Haymarket branch where Mr Adlam was the manager then she could work elsewhere in the city.  

6.	The Employment Tribunal found that the investigation that was carried out by a Lisa Silcock from the Respondent’s Human Resources Department, was carried out properly and reasonably.  Thereafter the Respondent instructed Dr Varsani, who is as we understand it, a consultant with expertise in race relations, to carry out an investigation on its behalf.  Dr Varsani has appeared both before us and also before the Employment Tribunal as advocate for the Respondent.  He spoke to a number of people but not to the Claimant.  He gave evidence before the Employment Tribunal as to why it was that he had not, in fact, during the course of his investigation (which involved also an investigation to the grievance and into the conduct of Mr Adlam) invited the Claimant to be interviewed by him.  Dr Varsani had given evidence to the Employment Tribunal that he had not in fact wished to interview her because he started on the assumption that she made a statement that was truthful.  She was distressed and he did not therefore wish to trouble her or upset her further.  His role was to ensure there was no cover up and that no one was hedging matters in clear of recrimination.  Neither he nor a colleague Mr Sisiyu could see that by his not involving the Claimant she would anyway thereby be treated less favourably, still less would she suffer any detriment.  She had been treated differently but not on racial grounds and the explanation was the Respondent’s anxiety to be supportive and reasonable towards her.  It is right however to record, that the Employment Tribunal found that the Claimant was aggrieved that she had not been interviewed by Dr Varsani.  

7.	Now it is important to note at this point in time that the Employment Tribunal has recorded Dr Varsani’s evidence.  There is nothing to suggest that the Employment Tribunal regarded Dr Varsani as anything other than a wholly honest witness.  It may be that Dr Varsani and we have expressed no view as to this, was mistaken in his decision not to involve the Claimant; generally speaking it is the best practice to involve a Complainant in any investigation concerning a grievance.  Nonetheless we mention this because albeit, it may be fairly said that there was differential treatment, it may be said that there was a detriment suffered, that if Mr Varsani’s evidence was correct, and we certainly do not see that evidence rejected by the Employment Tribunal, it seems difficult to say that it was a detriment suffered as a result of what we would compendiously call discriminatory treatment.  After Dr Varsani’s investigation all staff were given a one day course, equal opportunities training, and thereafter all staff were warned of the potential seriousness of discriminatory conduct.  

8.	So far as the Claimant was concerned the Employment Tribunal described there being a form of hiatus.  The Claimant believed that the Respondent should do more in relation to addressing her grievance, the Respondent believing it had done everything that it could.  Despite the fact that Mr Adlam was willing to apologise the Claimant was not prepared to return to work while he remained at the Haymarket branch.  After a few weeks the Respondent believing the Claimant had decided not to return to work, as she had found work elsewhere, sent her, her P45.  The Claimant was surprised because she was expecting the Respondent to do something about her grievance.  Her employment came to an end on 7 January 2005.  The Claimant not having been at work since 11 November, the date of the unhappy incident after which she had gone home in a state of some distress.  It is important that we recall, that the Respondent took a serious view of Mr Adlam’s misconduct and on 23 December 2004, the disciplinary proceedings that were initiated against him were concluded and he was told that he was given a written warning which was to remain on his file for 6 months.  The Respondent believed it had dealt with everything in an appropriate and responsible way.  

9.	Now, the Employment Tribunal set out the facts as we have largely described them.  I will come shortly to some other matters which need to be addressed but they  correctly, in our opinion, directed themselves to the laws as to direct discrimination, as to harassment and as to vicarious liability, see paragraphs 21 to 24.  In paragraph 26 the Employment Tribunal correctly directed itself as to the burden of proof and then referred to the guidance given to Employment Tribunals as to the application of the new provisions relating to burden of proof set out in Igen v Wong 2005 IRLR 258.  In paragraphs 28 and 29 the Tribunal correctly set out its approach as to issues of discrimination, at paragraph 30, as to the need to look at all of the evidence before drawing any inferences.  It was referred to the decision of the Employment Appeal Tribunal presided over by the former President, Morrison J, in the case of Reed Bull Information Services Ltd v Stedman in which it was held that for the purposes of discrimination or harassment a single incident was sufficient; the law in that regard is therefore noticeably different from the definition of harassment to be found in the Protection from Harassment Act where the statutory definition of harassment requires it to be a course of conduct and therefore at least 2 incidents.  It is right to say that after Reed Bull, as a reference to Harvey on industrial relations will make clear there have been other cases approving the views expressed by the President in relation to questions of harassment under the various statutes dealing with discrimination.  

10.	The Employment Tribunal went on to find on the facts that we have referred to, that the Claimant was not dismissed. We have already noted that although the Claimant sought to appeal against such finding it has been disposed of and there is no further appeal in that regard.  The Employment Tribunal were satisfied that the Claimant had in fact been discriminated against and had suffered detriment.  At paragraphs 49 to 51 they again referred to the rather relaxed atmosphere and banter in the Haymarket branch but the core findings are to be found at paragraphs 52 to 54:-

“52.	Turning to the particular events with which we are concerned, we accept that whatever may have gone on in the past between the claimant and Ben Adlam, on the evening of 11 November she was not happy about her pay or its payment and raised it as she had done before during that week with Mr Adlam.  He was on a day off but came in to attend a management meeting in the evening.  One can imagine that he would be in no mood for banter or to be questioned yet again by the claimant about her pay.  He did not want her to attend the meeting whereas, as a shift manager herself, she would normally be entitled and expected to attend.  When she first asked why she could not go to the meeting Mr Adlam suggested that she would be disruptive by raising issues relative to her pay rather than allow the normal agenda to be dealt with.  When she pressed the point and asked why her friend and colleague Ezekah, a black woman of African/Caribbean origin, could go he unwisely replied “maybe I like Ezekah better than you”.  When pressed yet again we find that he said “maybe it’s because I’m being racist to a black woman”.  It was, we believe, Ben Adlam’s way of saying he did not want her there.  Though he maintains it was said in jest it strikes us that it was more likely to have been delivered in a sarcastic tone, i.e. in the way of trying to make the claimant ‘get the message’ that he would rather she did not attend.

53.	There was a conflict as to whether the words “lowest of the low” were uttered as the claimant had suggested.  We have found it very difficult to resolve that.  We can well understand why Lisa Silcock came to the conclusion she did, namely that it was not proven against Mr Adlam.  Given what the claimant had said, what Ben Adlam and Mateyu Sisiyu had said, the fact that most thought highly of Ben Adlam from a race relations point of view and from what we can see from the varying interpretations of what might have been said (see Lisa’s own letter of 26 November at page 104) it would have been difficult to say with any conviction that Ben Adlam had uttered the exact words attributed to him by the claimant.  We found the claimant to be a fairly convincing witness but there again so was Mateyu Sisiyu.  Ben Adlam himself in many respects came across as being almost disarmingly frank.

54.	Again, we had to think hard as to why the claimant herself, so soon after the event, when one would imagine things would be freshest in her mind, wrote down in a note to Lisa the words she reiterated here before us.  We frankly found it impossible to decide but are confident that what we have factually found was said reflects the truth on the basis of the evidence as a whole.  That was, of itself, discriminatory in our view.  We do not think it was said in a jocular vein given what had gone on before.  Undoubtedly the claimant was hurt and shocked by it as Mr Adlam himself immediately acknowledged.  He proffered to sort of apology, excusing it as joke which it was not. Certainly the claimant did not see it as such.  The words of Mr Justice Morison in Reed are, we think, apposite.

11.	The particular core finding of course, is the finding that what was said, was not said in a jocular vein.  The Employment Tribunal noted that the Claimant was sufficiently upset to have wanted to go home.  They note that she had in fact then lodged a grievance and that when she was away she was told she would receive 3 shift payments but does not appear to have received any payment at all.  To some extent this is now said to be an administrative error.  The Employment Tribunal then had this to say at paragraph 57:-

“The effect of her suspension was that she remained off work and unpaid.  Ben Adlam on the other hand was not told to remain away although he was on holiday for a fortnight prior to his return on 25 November when he was interviewed as part of the investigation of the Claimant’s grievance he would have carried on working and would presumably have been paid for it.  He was treated differently to the Claimant and more favourably and all on account of having raised a legitimate grievance concerning discriminatory conduct on his part.”  

12.	The Employment Tribunal at paragraph 58 were perfectly satisfied that the investigation, apart from the fact that the Claimant was told to stay away from work and Mr Adlam not, was fairly conducted by Lisa Silcock.  The Claimant herself agreed that that was so and also accepted that the sanction imposed on Mr Adlam was not unreasonable.  She herself had not necessarily wanted to see him dismissed but she did feel that he was the one that should have been asked to move rather than herself.  The Employment Tribunal was not told that moving Mr Adlam had even been considered.  This was a question raised by the Employment Tribunal itself in its questioning of Miss Silcock and she was prepared to accept that even though there was no vacancy for a manager in another branch she had not thought of the possibility of swapping Mr Adlam with another manager.  

13.	The Employment Tribunal then went on to consider Dr Varsani’s investigation.  We have already drawn attention to the evidence in that regard.  The Employment Tribunal having referred itself to the speech of Lord Hoffman in West Yorkshire Police v Khan and also that of Lord Scott, to the effect that there was a distinction between the question as to whether treatment was less favourable and whether it had damaging consequences, noted that from the Claimant’s point of view she felt denied by not being interviewed by Dr Varsani and had suffered further hurt.  Now the Employment Tribunal took the view this was different and less favourable treatment and her lack of opportunity to discuss matters with Dr Varsani may have hardened her attitude and thus prevented or delayed resolution of the problem.  The Employment Tribunal however, do not in terms say that somehow or other Dr Varsani’s conduct and thus that of the Respondent was somehow tainted by discrimination on the grounds of race.  Even be it the case that applying Igen v Wong and the correct approach to the burden of proof as to whether a prima facie case is made out, it seems to us, particularly as the Employment Tribunal had a perfectly credible explanation from a witness whose veracity was not challenged that the Employment Tribunal, were perhaps wrong in making a finding that failure to involve the Claimant in Dr Varsani’s investigation amounted to differential treatment or detriment on the grounds of her race.  

14.	The Employment Tribunal went on to find that the Claimant had not been dismissed, we have already noted that and at paragraph 66 the Employment Tribunal had this to say, “the Claimant was discriminated against on grounds of her race and we also accept that what was said on 11 November by Ben Adlam, amounted to a form of harassment and a breach of section 4(2)(a) of the Race Relations Act 1976.  The discriminatory conduct continued post 11 November because of the Claimant’s suspension and by not being involved in Dr Varsani’s investigation.  The Respondent said that she herself had not sought a meeting with him, this is true, but by then we would suggest it was too late.”  The matter was then referred to a remedy hearing and that took place on 13 February 2006 and the Claimant was awarded the sum of £2745.45 of which the sum of £1500 together with a modest amount of interest was for her hurt feelings.  

15.	What the Employment Tribunal had to say about it, is this in paragraph 5.  Firstly, it directed itself to the helpful guidance given in the case of Vento v The Chief Constable of West Yorkshire and they found that the appropriate sum, having regard to the fact that generally Mr Adlam had had rather good reviews with most people, many of whom were of ethnic minorities, that it was a one off incident when he said something which was wrong and discriminatory and upset the Claimant and thereafter the Claimant was to some extent kept in limbo, although the Respondent may have been seeking to do its best to resolve the matter in what it considers to be a proportionate way.  The Employment Tribunal took into account the fact there was a distinction between the way in which the Claimant was treated and the way in which Mr Adlam was treated.  The Claimant saw Mr Adlam allowed to continue at work whereas she was not and if she wanted to return to work she would either have to work alongside Mr Adlam or move elsewhere, something she was not particularly keen on doing.  The Employment Tribunal also noted that she felt missed out in not seeing Dr Varsani.  The Employment Tribunal therefore came to the conclusion that the appropriate sum to award for injury to feelings was £1500.  

16.	Now in the Notice of Appeal, the first ground was that the Employment Tribunal were wrong to have found that what had been said by Mr Adlam was in fact capable of amounting to a discriminatory act and we use that as a convenient form of short hand.  Dr Varsani has pointed out to us the other findings of the Employment Tribunal as to the use of expressions which might have a racial connotation by members of minority ethnic groups.  He went so far in his Notice of Appeal and skeleton argument to suggest that it would be discriminatory so far as Mr Adlam was concerned if he were to be regarded as acting wrongfully in saying to the Claimant “I’m being racist” and “you’re a black woman” whereas a black person who might have in banter be found to have used terms such as “nigger” or “paki” would not.  He also pointed out the fact that Mr Adlam himself was aggrieved at the difference in treatment and Dr Varsani suggested that was contrary to the terms of the Act.  It seems to us however, that there are clear findings by the Employment Tribunal in this case which are unassailable.  The core finding was, of course, that what was said was not said in jest and that it had caused real upset to the Claimant in those circumstances even if the Claimant herself may, as we were told by Dr Varsani she did, have on occasion referred to white women as white bitches; it does not alter the fact that the Employment Tribunal has found quite clearly that what was said was discriminatory and amounted to harassment.  The Employment Tribunal, it seems to us, were perfectly entitled on those findings to have found that harassment under section 4(3)(a) of the act had been made out and perfectly entitled to find that even though it was an isolated incident it nonetheless was sufficient to bring the conduct of Mr Adlam within the meaning of section 3(a) of the act.  That is sufficient to deal with ground 1.

17.	So far as ground 2 is concerned, we have already expressed the view that the Employment Tribunal was perhaps wrong in finding, that Dr Varsani’s decision not to invite the Claimant to participate in his investigations and meet with him, was discriminatory on the grounds of her race.  We therefore say nothing further therefore about this, only in relation to the question of remedy.  Neither party was very sensibly, we may say, anxious that as a result of our findings the matter should be remitted to the Employment Tribunal and Mr Hodge, who appears on behalf of the Claimant, very properly accepted that the compensation might be reduced by the sum of £250 which seems to us to be eminently sensible and reasonable and Dr Varsani was equally reasonable and sensible in accepting that to be the case.  It therefore will follow that we ourselves will reassess the compensation on the basis of the concession accepted by Dr Varsani, having regard to the fact that we feel the Employment Tribunal’s findings as to the discriminatory conduct were somewhat broader than they should have been and reduced the some awarded from £1500 to £1250.  
18.	The third ground of appeal relates to the fact that the Employment Tribunal had found that the finding that there had been differential treatment in relation to suspension pending investigation was differential.  The Claimant had been told she would be paid for the shift she was asked to remain at home, and in fact she never was.  The Employment Tribunal, it is said, was wrong to presume that Mr Adlam would be paid, but it seems to us that this was a finding the Employment Tribunal were perfectly entitled to make.  The fact of the matter is that the Claimant did not receive any payment after 11 November at all.  Mr Adlam, albeit he was on holiday and was interviewed on his return from holiday so the Employment Tribunal found, even though the result of the incident was not put into the post until 30 November was not suspended at any time nor was any of his pay deducted.  That was sufficient to raise an inference of discriminatory treatment that was never rebutted and therefore the Employment Tribunal’s finding in this regard, to us seems unassailable.  

19.	Furthermore the Employment Tribunal was satisfied that it does seem to have been unfortunate that the Claimant who was the victim had been told that she was the one who would have to move while the Respondent had not given adequate consideration to the question as to whether or not it might be possible to find some kind of exchange of managers to ensure that it was Mr Adlam that who was the wrongdoer in all of this should be moved.  In the circumstances therefore, we are quite satisfied that the Employment Tribunal’s decision in relation to the third ground was correct and it follows that save as to the extent to which we have mentioned the appeal will be dismissed.  It is of course an important matter and we do not doubt that Dr Varsani will report back to the Respondent that the Respondent has generally after the conduct of Mr Adlam came to light acted with responsibility and propriety in having a thorough investigation and in taking immediate steps to ensure that all members of its staff are fully aware of an equal opportunities policy and the need to avoid this kind of conduct which, on this occasion, was justifiably found to have given serious offence to the Claimant.