Appeal No. UKEAT/0056/11/RN

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

		At the Tribunal
		On 2 February 2012

Before
HIS HONOUR JEFFREY BURKE QC
MR A HARRIS
MRS M V McARTHUR FCIPD

SOUTHERN CROSS HEALTHCARE	APPELLANT

MR J OWOLABI	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR K SONAIKE
(of Counsel)
Instructed by:
Abbey Legal Services
2nd Floor – Corinthian House
17 Lansdowne Road
Croydon
Surrey
CR0 2BX	
For the Respondent
	MS G NOLAN
(of Counsel)
Instructed by:
Royal College of Nursing 
Legal Services
2nd Floor, Avalon House
St Catherine’s Court
Sunderland Enterprise Park
Sunderland
Tyne and Wear
SR5 3XJ

SUMMARY
RACE DISCRIMINATION
Direct
Comparison

The Appellant was found to have been guilty of direct race discrimination arising from specific incidents of racial abuse and failure to consider his grievances properly while promptly investigating allegations against him.  There were 15 grounds of appeal - attacking the Employment Tribunal’s finding as to a contributory act, as to comparators and as to factual conclusions.  Held - none of the grounds succeeded.  No new principle involved.

HIS HONOUR JEFFREY BURKE QC
Introduction
1.	This is an appeal by the Respondent before the Employment Tribunal, Southern Cross Healthcare, against the Judgment of the Employment Tribunal sitting at Newcastle-upon-Tyne, chaired by Employment Judge Shepherd and sent with written Reasons to the parties on 29 November 2010 after a three‑day hearing earlier in that month.  By that Judgment the Employment Tribunal found that the Claimant, Mr Owolabi, had been the victim of direct racial discrimination by the Respondent.  They awarded him £10,000 compensation for injury to feelings, £2,000 compensation for psychiatric injury and a sum of £5,600‑odd for loss of earnings; and they made a recommendation about which there is now no issue.

Grounds of appeal
2.	By their amended grounds of appeal the Respondent (as we will call the Appellant, for they were the Respondent before the Tribunal) have put forward 15 grounds of appeal, which are advanced under the following broad heads.

3.	Ground 1 asserts that the Tribunal considered and adjudicated upon claims of discrimination which had not been raised in the Claimant’s claim form and, more specifically, in his further and better particulars of his claim form, provided pursuant to an order of the Tribunal; and the Tribunal, therefore, had no jurisdiction to adjudicate on that part of the claim.

4.	Grounds 2‑6 relate to what came to be called “the chimp incident”.  It related to events said to have occurred in October or November 2008; however, the Claimant’s ET1 was not put in until October 2009.  It is said this claim was submitted out of time; no claim for an extension of time was made, and therefore the Tribunal had no jurisdiction.  Under ground 3 it is said that the chimp incident as a separate allegation related to events before 5 April 2009, at which time the late and unlamented statutory grievance procedures still existed.  They were not complied with, and for that reason too the Employment Tribunal had no jurisdiction in respect of the chimp incident.  Ground 4 complains that the Tribunal, in considering the chimp incident, used the wrong comparator; ground 5 asserts that no detriment arising from that incident was found to have existed, and therefore that incident could not constitute in law an established act of race discrimination; and ground 6 asserts that the reasons for the Tribunal’s conclusion on the chimp allegation were inadequate.

5.	The focus then switches to subsequent allegations.  Ground 7 asserts that the Tribunal erred in concluding that there was a continuing act of race discrimination up to September 2009; ground 8 asserts that the Tribunal, in considering the complaint that the Respondent had not taken the complainant’s grievances seriously, used the wrong comparator; ground 9 asserts that, in considering the same area, the Tribunal came to factual conclusions that were perverse; ground 10 asserts that, on the basis of the Tribunal’s conclusions, it can be seen that they found that the Respondent’s reasons for failing to treat seriously the Claimant’s grievance or grievances was a non‑discriminatory reason and therefore inconsistent with their finding that there was race discrimination in that respect; ground 11 relates to the issue as to whether there was or was not a finding that there had been racial discrimination by the Claimant being isolated by other members of staff; and ground 12 relates to what came to be called “the monkey incident” (so that in this case there was both a chimp incident and a monkey incident!); it is said that the Tribunal’s factual conclusions on that incident were perverse.

6.	There are two grounds 13.  Ground 13 number 1 asserts that the monkey incident took place more than three months before the issue of proceedings on 2 October 2009, therefore was out of time; and no application to extend time was made.  The second ground 13 asserts that the Tribunal erred in law in inferring racial discrimination, or a difference of treatment which was capable of being race discrimination, from no more than unreasonable conduct.  Lastly, in what is, perhaps slightly oddly, in the amended Notice of Appeal described as “Ground 7”, point is taken on quantum, and we need not develop that any further.

History in outline
7.	Having set out the grounds of appeal in brief terms, we turn to an outline history of the facts, taking our outline from the details of the Tribunal’s findings of fact, those details covering a very substantial part of a substantial Judgment.  The Claimant was employed by the Respondent as a nurse in 2008.  In the autumn of 2008, he moved to their care home, which was a home for vulnerable elderly persons, at Ayresome Court, which is in Yarm, Cleveland.  In February 2009, he complained to Ms Fellows, the manager of the home, that in his early days at Ayresome Court he had been called a “chimp” by another employee, Helena Scott, who had also said that he was “the most obnoxious being on the planet”.  Ms Fellows met the Claimant two days later.  He named witnesses as having been present at the chimp incident.  The Tribunal found that Ms Fellows told the Claimant that further statements would be taken and he would be notified, but no investigation took place and the allegation that the Claimant made was not put to Helena Scott until a week before the Employment Tribunal hearing, which took place in November 2010.

8.	Three weeks later the Claimant, nothing having happened in the interim period, wrote to Ms Pilkington of the Respondents (Ms Fellows being on holiday), saying that he was not pursuing his complaint any further.  He suggested that he would move; he was told that that would not solve the problem and that something needed to be done about it, but in fact nothing was done.  Late in March and early April complaints were made to Ms Fellows by other members of staff and a “service user” (which means a client or resident at the home), that the Claimant had behaved in an ill‑tempered and offensive manner.  Prominent among the complaints was a complaint that, on 1 April, he had been asked to turn off a buzzer alarm and had screamed in an aggressive manner that he was on his break; this was described as “the buzzer incident”.  We will come back later to what happened between the initiation of those complaints and the suspension of the Claimant on full pay on 3 April while a “full and thorough” investigation was to be carried out.
 
9.	In the course of an investigatory meeting on 29 April Ms Fellows put the complaints against the Claimant to him and sought his version.  His response is set out at paragraphs 5.18 and 5.19 of the Judgment.  We can summarise it by saying that he responded in terms of continuing racist behaviour towards him.  He was then invited to a disciplinary hearing on 14 May in respect of the buzzer incident and another incident, called “the birthday incident”, when he was said to have expressed his displeasure loudly when dispensing drugs from the drugs trolley and the lights were turned off because of the presentation to a resident of a birthday cake, which he did not know was going on.  At the disciplinary hearing, he was asked if he felt that staff did not listen to him because of racial issues, and said, “I don’t know, somebody called me a chimpanzee, one of those in the same group, Helena said it”, and then he said, relating to the withdrawal of his complaint, that it had not been dealt with and that he could get on fine until this happened, referring to the fact that a disciplinary meeting was taking place in respect of the matters that I have referred to.

10.	On 19 May the person who had conducted that disciplinary meeting, Ms Bainbridge, issued to the Claimant a formal final written warning, requiring him not to show aggression around the home, to take breaks in the staff room and to help other staff when they needed help.  He appealed against that warning.  By that time, a number of further complaints had been made about his conduct and he was again suspended.  At his appeal hearing on 17 June, heard by Lesley Shaw, he was asked whether he wanted to pursue the original allegation of racial discrimination, which was described by Lesley Shaw as a serious allegation; he said he did, and the meeting was adjourned.  Over the next four weeks, the Tribunal found, various further staff were interviewed about the complaints against the Claimant, in particular in relation to the buzzer incident, and were asked if they had racial reasons for their conduct towards the Claimant; unsurprisingly, they said they had not.

11.	On 22 July, the Claimant’s appeal against the disciplinary decision was rejected, it seems without a hearing, but no point appears to have been taken as to that.  On 25 July he was asked by Ms Fellows to attend another disciplinary hearing relating to the subsequent complaints.  He went off sick before that hearing took place, and on 26 August the Royal College of Nursing on his behalf put forward a detailed further grievance setting out a history of what he said had happened to him generally and specifically, describing the monkey incident as having occurred in June 2009, when a van was parked outside Ayresome Court by a resident’s son which contained a monkey.  There seems to have been some issue as to whether it was a real monkey or a toy, which does not matter now.  The Claimant, who was upstairs, heard his name being shouted repeatedly, and a nurse came upstairs to inform him of the monkey and insisted that he should come and look at it.  Just as a number of members of staff had been named as witnesses to the chimp incident, so names were also given of witnesses to the monkey incident.

12.	On 28 September 2009 there was a grievance hearing before an operating manager of the Respondent, Melanie Auckland.  We need not go into details at this stage; but it was found that his grievances were not upheld.  These proceedings then started.  At the date that they started, as we understand it, the appeals or earlier stages of the second disciplinary process were still outstanding, as was his appeal against the grievance decisions.

The Tribunal’s decision
13.	Having set out the factual history as they found it, the Tribunal set out the law at paragraphs 6‑9 of their Judgment in a manner which has not been the subject of any criticism, on behalf of the Respondent in this appeal.  They then addressed the issues and set out their conclusions.  Their conclusions, so far as relevant for the purposes of this appeal, can be summarised as follows.
(1)	The complaints of race discrimination put forward by the Claimant at the hearing were raised in his ET1 and in his further and better particulars; and the Tribunal had jurisdiction to hear them (paragraphs 10‑12 and 20).

(2)	The Claimant’s case was one of a series of events which amounted to an act over a period up to 28 September 2009.  The Employment Tribunal application was 2 October; so none of the allegations were out of time.  The Tribunal referred to the well‑known principle in Hendricks v The Commissioner of Police for the Metropolis [2003] IRLR 95 (paragraph 13).

(3)	The appropriate comparator in relation to the chimp incident was a white nurse who was called a chimp; but in any event that remark, if made, was race‑specific.  In relation to the allegations of failing to investigate the Claimant’s complaints the Tribunal considered actual or hypothetical members of staff who raised complaints but were white (paragraphs 15‑16).  They found that the investigation into the chimp incident was not adequate, and that the persons named as present were not interviewed about it; Helena Scott was not interviewed about it until the very last moment.

(4)	Similarly the subsequent complaints about other matters, including the monkey incident, were not adequately investigated; only two of the four witnesses named in the Royal College of Nursing grievance letter had been interviewed.  The employers would have carried out a more thorough investigation in the case of a hypothetical white comparator (paragraphs 17‑19).  The Tribunal found that the monkey incident had occurred, as they found that the chimp incident had occurred, and that in each case there had been racial discrimination (paragraphs 17, 19 and 22).

(5)	The Claimant had established facts in relation to both the chimp incident and the monkey incident and in relation to the lack of proper investigation, from which, in the absence of an adequate explanation, the Tribunal could consider that there had in those respects been race discrimination (paragraph 21).

(6)	The Tribunal, at paragraph 22, in summary considered the well‑known principle, set out in Glasgow City Council v Zafar [1998] ICR 120 and in The Law Society and Ors v Bahl [2003] IRLR 640, that the fact that conduct is unreasonable does not of itself enable a Tribunal to infer that it was capable of being treated as discrimination but not adequately explained.  The principle was set out; and the Tribunal reminded themselves, too, that they had to take into consideration all potentially relevant non‑discriminatory factors.  They found that the Respondents had not shown the burden of proof having shifted to them, that any of the matters which the Tribunal had found to constitute prima facie discriminatory treatment were not on the grounds of race.  They therefore determined that there had been direct discrimination in respect of the chimp incident and the monkey incident, and the failures properly to investigate them.  We will come to compensation later.

The appeal
14.	We now turn to the submissions, and our response to those submissions, in relation to each of the grounds which we have earlier summarised.  The first ground can be described as the “not pleaded” ground.  Mr Sonaike, on behalf of the Respondent, has referred us to authorities such as Chapman v Simon [1994] IRLR 124, which set out that, as a matter of principle, a Claimant before the Employment Tribunal must set out in advance the arguments which he wishes to raise, and that it is not for the Tribunal to find some other act or acts of racial discrimination which have not been the subject of complaint.  Mr Sonaike submits that in this case the ET1 was in very general terms, therefore the Tribunal ordered further and better particulars, and the Claimant was entitled only to proceed on what was in the further and better particulars.  He submits that the further and better particulars did not identify a complaint of failure of proper investigation of matters subsequent to the chimp incident.  The only complaint there identified as a failure to investigate was that made to Ms Fellows in February 2009 about the chimp incident.  Therefore the Tribunal did not have jurisdiction to deal with the subsequent complaint and the subsequent failures to investigate.  It is said that this point was taken during the course of the hearing and that the Tribunal said that it would hear all the evidence and decide on the point at the end but did not do so and simply included subsequent complaints and failure to investigate them along with everything else.

15.	We do not accept these submissions.  In the ET1 the Claimant complained: of the chimp incident, of staff behaving adversely towards him as a result, that he had been isolated by staff, that there had been an incident when he was kept out of the picture when the birthday cake was presented and the lights were turned off (the birthday incident), of the buzzer incident, and such behaviour continuing and of Ms Fellows’ failure to address the above and that that conduct continued after he came back from his holidays in March, the monkey incident, that he was told that matters would be investigated by Lesley Shaw, who dealt with his appeal hearing in relation to the disciplinary process, but they had not been and of the rejection of his appeal against the disciplinary warning.  At the end of the lengthy narrative that he set out, he said this:

“This total disregard of the racial abuse towards me and lack of full and proper feedback to me of any investigation into my complaint by two Managers has been perceived by me that as a man of colour I am not considered in the same light as my white colleagues.
My feelings have been disregarded, I felt humiliated and demeaned by their attitudes and disregard of me as a human being and a professional Nurse.  […]
There has been no support offered to me by Ms Fellows to address these issues […].
My request to the Operational Manager Lesley Shaw for the racial abuse to be investigated and lack of feedback demonstrates a lack of care to me as a staff member.”

16.	Mr Sonaike submits that there is no reference to any complaint other than the February complaint to Ms Fellows in the further and better particulars.  There is something in that submission, but, at paragraph 20, the further and better particulars do refer to failure to take the Claimant’s complaint into account properly and, more significantly, at the beginning of the further and better particulars these words appear: “The matters set out below are to be read in conjunction with the Claimant’s ET/1 issued on 2nd October 2009”.  Mr Sonaike submits that the further and better particulars in effect constitute and must be taken to constitute all of the Claimant’s complaints and that, in so far as anything further can be said to appear in the ET1, that cannot be relied upon because it does not appear in the further and better particulars, the Claimant having been ordered to provide further and better particulars of his complaints.

17.	We do not accept that argument.  The words at the beginning of the further particulars were intended deliberately by the drafter, no doubt as a safeguard, to incorporate the further particulars and the ET1 together.  In our judgment, the two documents should be taken together; and the ET1 plainly covers complaints on a much wider basis than the complaint to Ms Fellows alone.  They were sufficient to put the employers on notice that they had to address subsequent failure to investigate, beyond the original complaint of February 2009.  We are supported in this view by the fact that, in their very detailed response, the Respondent referred in detail to the steps they had taken to proceed with the further investigation.  We accept that the fact that something is addressed in a response is not enough of itself, but, coupled with the ET1 and the further and better particulars, there is sufficient to show what in essence is all that it is necessary to show, that the Respondent knew that this was part of the case that they had to meet at the Tribunal hearing.  

18.	It is worthy of note that, in their Judgment, the Tribunal at paragraph 12 address this objection in a rather different way.  They say:

“Mr Sonaike said that the further particulars named Angela Fellows, Helena Scott and Arma Celestine and that the jurisdiction of the Tribunal was limited to hearing complaints against those individuals.”

If that is the way in which the point was put, that is a rather different point from that which is now taken.  Whether the Tribunal correctly described the point which Mr Sonaike then took, or whether they incorrectly described it, we do not have to decide because we are satisfied, treating Mr Sonaike as having made the objection which he says now that he made (and accept that that is what he remembers as having happened), and treating hypothetically the situation on the basis that he did make the objection which he now says he made, in our judgment the Tribunal were right to proceed despite it, because it was not well founded for the reasons we have set out.

19.	We then go on to ground 2.  This is headed “‘Chimp’ allegation: Jurisdiction (time limit)”.  The principle that for the purpose of deciding whether complaints of race discrimination are in time, where there is what the Tribunal decides to have been an act extending over a period, time begins to run from the last of the acts within that period is not in dispute.  It is contained in the case of Hendricks to which we have already referred, a case with which anybody who works in the world of discrimination law is entirely familiar.  Mr Sonaike submits that the Tribunal could not have found, and, if they did, should not have found, that there was here a continuing act, or an act extending over a period (those expressions amount to the same thing) because they did not find any act of race discrimination between the chimp incident in November 2008 and the failure to deal with the Claimant’s complaints about it to Ms Fellows in February 2009.  The chimp incident was, therefore, a standalone complaint which was presented way out of time, it having occurred in October or November 2008, and the ET1 having been presented something in the region of a year later.  If the Tribunal found that it was part of an action over a period, then they were not entitled to do so.

20.	As to the first point, it was, in our judgment, open to the Tribunal to regard the chimp incident and what followed it as a continuing act over a period.  It was the Claimant’s case that the chimp incident set in train a campaign of adverse behaviour, including the bringing of complaints against him and including the monkey incident; and the Claimant’s evidence as to the chimp incident and the monkey incident was accepted by the Tribunal.  There is nothing in the Judgment which shows that the Tribunal rejected his evidence that discriminatory conduct was taking place between the chimp incident and his complaint to Ms Fellows three months later about it.  Of the other employees who were managers, only Ms Fellows was called; and, it seems, she did not suggest, and it probably was not suggested at all, that it was untrue that there had been adverse conduct after the chimp incident.  Thus the chimp incident need not be seen and, indeed, could not be seen as a standalone incident.  But, even if there was no such conduct in between at all, nevertheless it was open to the Tribunal to regard the course of events, looking at the picture as a whole from October/November 2008 through to the presentation of the ET1, as an act extending over a period.  It is, as anyone who has worked in the discrimination field knows, far from uncommon in this class of case for there to be individual acts of discrimination which form part of an extended series of such acts yet occur, comparing one act with another, three months or more apart.  We conclude that there is nothing in this point and that the Tribunal were entitled to treat the whole of the conduct complained of as an extended act falling within the Hendricks principle.

21.	But did they do so?  That is the second point taken under this ground.  Mr Sonaike points us to paragraph 28 of the Judgment, in which the Tribunal say:

“The claimant was subject to a continuing act of race discrimination for a significant period of time.  This was from February 2009 until he went off sick on 29 July 2009.  It continued after that time, certainly until the grievance hearing on 28 September 2009.”

However, that paragraph, in our judgment, is a paragraph directed not to making any findings about an extended series of acts but to the quantum of compensation for injury to feelings.  In saying what the Tribunal said in the first three lines of that paragraph, the Tribunal may have been, and we think probably were, understating the effect of their previous conclusions; for there is no doubt, as we see it, that they found that the extended act continued not from February 2009 but from the time of the chimp incident in paragraphs 11‑13 of their Judgment.  In paragraph 11 they said, relating to the particulars:

“These referred to the various allegations naming Helena Scott, other members of her staff present and laughing when she was alleged to have referred to him as a chimp  It referred to other members of staff beginning to isolate the claimant and no action being taking [sic] by Angela Fellows.”

22.	They then went on to say that the particulars referred to the monkey incident and to the failure to deal properly with the Claimant’s complaint.  At the beginning of paragraph 13, they refer to a point to which we are about to come, namely that if the chimp incident was a standalone incident, it attracted the provision of the Dispute Resolution Regulations under the Employment Act 2002.  They then said:

“The Tribunal is satisfied that the allegations made by the claimant related to a series of events continuing over a period of time and has considered the case of [Hendricks] in this regard.  The allegations represent an act extending over a period […].  The allegations raised by the claimant continued in respect of his allegation of failure to investigate his claims and to treat his complaints seriously.”

The Tribunal there were not separating the Claimant’s allegations generally from the chimp incident.

23.	If those three paragraphs are read together, while the Tribunal undoubtedly could have set out their conclusion in a more explicit manner, it is, in our judgment, wholly clear that they were finding that the act extending over a period included the chimp incident.  If that were not so, what was the purpose of the reference at the beginning of paragraph 13 to the issue arising over the lack of a statutory grievance procedure?  In our judgment, there was a sufficient analysis of the issue, there was a sufficient explanation for the Tribunal’s conclusion (as we have said, it could have been more precisely spelt out, but it is sufficiently spelt out for their conclusion to be clear); and it was a conclusion that the Tribunal were entitled on the facts to reach.

24.	We turn, therefore, to ground 3, entitled “‘Chimp’ allegation: Jurisdiction - Breach of Statutory Grievance Procedure”.  This ground stands or falls by the outcome of the rival submissions on ground 2.  Mr Sonaike accepts that, if the continuing act arguments which he has put forward fail, then ground 3 fails too.  No doubt everybody is grateful that we do not now have to look at the regulations made under the 2002 Act.  The difficulties which they pose is no excuse for not looking at them if one has to; but the reality is that we do not, because of the decision to which we have just come on ground 2.
 
25.	Ground 4 is entitled “‘Chimp’ Allegation - inappropriate comparator”.  Here the submission is that the Tribunal, by using as the comparator a white nurse who was called “a chimp” have erred.  The Claimant is black, and was dealing with plates when Helena Scott was in the area at the time of the event.  The correct comparison is it is said, not a white nurse who was called a “chimp” but a white nurse who happened to be carrying out the same act whilst Helena Scott was in the area.  Mr Sonaike asks rhetorically in his skeleton argument, “Would Helena Scott have referred to such a person as a chimp?”  The obvious answer to that question reveals the inappropriateness of treating this part of the case on a comparator basis, and it can be seen that whether or not the Tribunal in paragraph 15 wrongly identified the comparator, were it necessary to go down the comparator route, they did not determine this part of the case on that basis.  They said this:

“The word ‘chimp’ in this context is race specific and, if the Tribunal concludes that the claimant was referred to as a chimp, then that would be on the grounds of his race.”

26.	As we read it, it is clear that the Tribunal either were not in truth making the comparison complained of or were putting forward an alternative basis for their conclusion, which alternative basis stands up whether or not the comparator approach was correct.  It is accepted by Mr Sonaike, with appropriate professional candour, that the expression relied upon could be taken as being race‑specific; he does not present any submissions that the Tribunal could not so approach it, and they did, at least as one route to their conclusion, approach it in that way.  That being so, this ground also fails.

27.	Ground 5, which is headed “‘Chimp allegation - No detriment” in Mr Sonaike’s skeleton, we can deal with extremely quickly.  We might be tempted to have dealt with the argument that there was no detriment, or no detriment found, at some length were it necessary to do so, but it is not necessary to do so, because Mr Sonaike, again, with professionalism which is admirable, accepts that if we find that there was a continuing act causing the consequences which are subsequently described in the Tribunal’s Judgment, this ground cannot be advanced, and therefore we need say no more about it.  We should add that Ms Nolan in her skeleton takes the preliminary objection to this ground that it cannot be argued as a free‑standing ground because it was not in the original Notice of Appeal, but we do not need to deal with that point, and put it aside.

28.	By ground 6, headed “Chimp allegation - Inadequacy of Reasons”, Mr Sonaike criticises the findings of the Tribunal at paragraph 22.  In that paragraph the Tribunal said:

“The Tribunal is satisfied that the claimant had been referred to as a chimp.  He was clear and consistent on this.  He referred to a number of witnesses and the circumstances in which it happened.  There was no evidence that it had been put to Helena Scott in these terms.  Helena Scott’s evidence was vague and she continually indicated that she could not remember events from so long ago and, in the circumstances, the Tribunal prefers the evidence of the claimant.”

29.	The basis of Mr Sonaike’s criticism is that the Claimant, in his evidence, varied as to when the chimp incident happened.  He said at first that it occurred in October, and then in November; he was not able to give a precise date for it.  He had a diary but had not entered it into his diary.  He said that he could not explain (and that really means he could not adequately explain, although it is clear from the notes that he did give some explanation) why he had not made the complaint for three months, and there were, it was said, detailed factual differences between one account and another account of the incident which he had given.  It is said that those arguments, which were all put forward in closing, no doubt, by Mr Sonaike, are not reflected in the Judgment; and there are therefore no proper reasons given by the Tribunal as to why they preferred the evidence of the Claimant about this incident to that of Ms Scott, who denied it.

30.	The Tribunal heard the evidence.  They were entitled to form a judgment as to the Claimant’s clarity and consistency.  They were entitled to make a judgment as to the strength, or lack of strength, of Ms Scott’s evidence.  It comes as no surprise to us that they reached the conclusion they did in favour of the Claimant’s account, although he was hazy about the date on which the event occurred or about some of its detail.  The Employment Tribunal heard the Claimant give evidence; they also heard Ms Scott.  It is clear from the notes which we have seen that she said that she did not use the expression complained about, but her evidence is peppered with “I don’t remember” in answer to questions she was asked in cross‑examination about the relevant period, and she was not asked at all about the chimp incident until a week before she gave evidence; in other words, for two years after the incident had taken place.  The Tribunal, in saying that the Claimant had been clear and consistent, were not saying that he had been consistent about dates; they said that he had given a clear account of what had happened and a consistent account of what had happened.  It was up to them to value, at whatever point in the scale of values they wished, such inconsistencies as there were.  The fact that the Claimant said that what had happened two years before could have been in October or early November and did not know which seems to us to have been entirely unremarkable, but it is not our judgment which counts.  The Tribunal were certainly entitled to regard it as such; similarly his inability to remember the precise date.  He did give an explanation about the diary; it is in the notes.  None of the four suggested witnesses as to what happened were called by the Respondent to say that the incident did not happen; the only contrary evidence was the evidence of Ms Scott, which I have described.  The Tribunal were entitled to evaluate her evidence as they were entitled to evaluate that of the Claimant.

31.	The Tribunal made a finding of fact of a routine nature in the life of an Employment Tribunal.  We are not suggesting that it is not important, but it does not have any special features to it.  In making a finding of fact of that nature, a Tribunal does not, as part of its reasons, have to set out each and every argument as to why a particular witness should not be believed and deal with it.  They are entitled to express their conclusion in rather more general terms as long as, so as to be compliant with the standards set out in Meek v City of Birmingham District Council [1987] IRLR 250, they say enough to allow the parties to know why on this issue they have respectively won or lost.  They said in their Judgment that the Claimant had been clear and consistent, and they said that Ms Scott’s evidence was vague and she continually indicated that she could not remember events from so long ago.  That is enough to explain to the parties why they respectively won or lost on this issue.  There is, in our judgment, no inadequacy in their reasons.

32.	In ground 8, headed “Failure to treat his grievance seriously.  Incorrect comparator”, the Respondent’s focus falls on paragraph 16 of the Employment Tribunal’s Judgment:

“With regard to the further acts of discrimination, it is alleged that, on a continuing basis, the respondent failed to take the claimant’s complaints seriously.  The Tribunal has to consider the appropriate comparator in this regard.  Mr Swift on behalf of the claimant referred to the other members of staff who had raised complaints against the claimant.  These were investigated immediately and the claimant was suspended.  The Tribunal has concluded that these other members of staff could be the appropriate comparators or, if not, they will provide evidence from which the Tribunal could construct an appropriate hypothetical comparator.  That is a white person who raised similar complaints to those of the claimant and the alacrity with which the respondent dealt with the complaints on or around 2 April 2009 provides clear evidence that the claimant has suffered less favourable treatment.  He was suspended on 3 April 2009.  Whereas the complaint the claimant raised on 20 February 2009 was not brought to the attention of the person he named, Helena Scott, until October 2009 and she only saw the letter of complaint about her behaviour about a week before the Tribunal hearing.”

33.	The Respondent submits that the Claimant’s complaints at this stage about the chimp incident did not cause any harm to any service users, the residents of the home, whereas the complaints against the Claimant did in a number of respects, set out in paragraph 50 of Mr Sonaike’s skeleton.  Therefore there is no true comparison.  The Tribunal were not comparing two sets of complaints that were anywhere near each other, it is said, in terms of importance and magnitude.

34.	In our view, this argument, too, is not well founded.  Firstly, the Tribunal’s findings of failure to investigate do not only relate to the chimp incident; the first grievance was about that incident; there are many further complaints in Sandra Bullock’s letter (see paragraph 5.41).  But in any event, concentrating on the complaint as to the chimp incident, whether the comparison was one which could be made was a matter for the Tribunal unless it was so impossible as a comparison that it could not fall within a permissible solution to the comparator question.  In our judgment, there was not the enormous difference that Mr Sonaike relies upon.  A complaint that somebody has acted adversely in a way which affects the residents in the home, of course, is important, but so too is a complaint that one member of staff has called a black member of staff a “chimp”.  Neither could be said to be trivial.  As to a comparison of seriousness, that was a matter for the Tribunal and not for us, unless, as we have said, the Tribunal’s comparison exceeded the permissible limits; it did not.

35.	Secondly, the Tribunal in any event did not fall into the trap of regarding the treatment of the complaints against the Claimant as conclusive.  What they said in paragraph 16 was that therein could lie the appropriate comparators, but:

“If not, they will provide evidence from which the Tribunal could construct an appropriate hypothetical comparator.  That is a white person who raised similar complaints to those of the complainant.”

36.	That, in our judgment, was an entirely appropriate approach by the Tribunal; it is not a flawed approach.

37.	We turn to ground 9, a perversity argument in relation to the Tribunal’s conclusion that there was a failure to treat the Claimant’s grievance seriously.  The substance of the submission is that the Tribunal came to a perverse conclusion, because if a comparison is made between the process of the Claimant’s complaint and the process of the complaints against him, it can be seen that an initial note of the complaint was made by Ms Fellows when it was taken but nothing happened for three weeks, and the same can be said as to the process that occurred in the case of the complaints against the Claimant.  That, we see from the Tribunal’s very detailed findings of fact, is not an accurate representation of their factual conclusions.  It is an accurate description in part of what happened to the Claimant, but it is not a complete description, because the Tribunal did not regard the Claimant’s complaint as having come to an end, in terms of investigation when he withdrew it; and in any event he subsequently revived it when he was subjected to disciplinary proceedings, yet it was not investigated.  So, the non‑investigation endured for much longer than the three weeks that Mr Sonaike has identified.

38.	Secondly, the process in his case and the process, as found, in the case of the complaints against him can be seen to have been very different.  The findings show that, the Respondent having received the first complaint against him on 25 March, statements were taken from six people (paragraphs 5.8‑5.12), and another potential witness was interviewed, who said that in effect he did not have anything to say about the complaints against the Claimant, except that the Claimant had insisted on getting him to take his tablets at a time when he was not ready (which was not the subject of any complaint against him that was pursued, as far as we know).  Within a few days of these complaints developing, by 3 April, the Claimant had been suspended.  It is not necessary for us to read through the details of paragraphs 5.8‑5.12 or the fact that, thereafter, there were further investigations; somebody was interviewed on 21 April, and Helena Scott was interviewed on the same day, although not about the chimp incident, but about the buzzer incident on 1 April.  Another witness (Alison Worthy) was interviewed on 21 April and a further witness was interviewed on 24 April, Arma Celestine; so it can be seen that between the beginning of those complaints and 24 April, over roughly a three‑week period, a great deal was done.  Yet in the case of the Claimant’s complaint, on the findings, apart from taking an original note of his complaint, nothing at all was done in that same or similar period.  In our judgment, looking at the findings of fact as we have done, the argument put forward by Mr Sonaike does not come near to demonstrating overwhelmingly that the Tribunal had reached a conclusion which no reasonable Tribunal could reach, that being, of course, the test for perversity as set out by Mummery J, as he then was, in Yeboah v Crofton [2002] IRLR 634.  Thus this ground fails as well.

39.	Ground 10 also relates to the failure to take a grievance seriously.  It is submitted that the Tribunal, at paragraph 24, found that the reason why Ms Fellows did not take up the investigation more vigorously was a non‑discriminatory reason, which excluded the Tribunal from coming to the conclusion to the contrary which they reached.  In paragraph 24 the Tribunal say this:

“Angela Fellows was the only manager who appeared before the Tribunal.  The Tribunal does have some sympathy with her.  She was an inexperienced manager who indicated that she had had no training in equal opportunities or dealing with grievances.  However, she made much more effort to investigate the allegations against the claimant than she made in respect of his serious allegations of race discrimination.  She did not take the claimant’s allegations seriously, neither did any of the other managers involved.  However, the allegations against the claimant which, the Tribunal considers to be of a less serious nature, were investigated with a degree of thoroughness.  The failure to take the claimant’s complaints seriously was on ground of his race.  There was a lack of comprehension of the seriousness of these issues.  There was a complete lack of sensitivity towards a man of the claimant’s ethnic origin and how reference to him as a chimp or comparisons to a monkey would affect him.  The Tribunal is satisfied that the claimant was subject to direct race discrimination.”

40.	The submission based on that paragraph, in our judgment, fails to embrace the well‑known principle that race discrimination does not have to be proved to have occurred by a person or persons who is or are racially motivated.  Unhappily it is well known that people can stumble into discrimination through ignorance, incompetence or otherwise.  The findings about Ms Fellows at paragraph 24, we are satisfied, are sufficient to explain why the Tribunal concluded that there had been racial discrimination, that there was differential treatment that was capable of being race discrimination, and that there had been no adequate explanation of that difference.  Her lack of comprehension or sensitivity towards the Claimant and towards his racial complaint were matters from which the Tribunal were entitled to infer, as they did, that there was discrimination and that the explanation was not sufficient or acceptable.  That is the exercise that the Tribunal were carrying out in paragraph 24; and it was an exercise which was a permissible one.

41.	Ground 11 is a slightly unusual ground, in so far as it is a ground at all.  What is said is this: the Claimant complained to the Tribunal, and indeed to the employer, that he had been isolated by other staff members.  That he had so complained is clear; it is referred to in the grievance letter which emanated from the Royal College of Nursing.  What Mr Sonaike says is that it is not clear is whether the Tribunal made a finding that that isolating conduct by staff members had in truth occurred.  The Tribunal undoubtedly found that the chimp incident had happened and that the monkey incident had happened, but, says Mr Sonaike, it is not at all clear that the Tribunal found that there was, as a matter of fact the isolating behaviour; and if they did, there are no reasons given for their making that finding.

42.	The nearest that the Tribunal come, in our judgment, to making such a finding is in paragraph 23, where they are addressing not whether there was that behaviour but whether there had been a failure to deal properly with the Claimant’s complaints.  At the end of that paragraph, they say, “The claimant’s aggression arose following an incident in which he was called a chimp and he was then isolated by other members of staff”.  Ms Nolan, on behalf of the Claimant, agrees that there is no express finding by the Tribunal that that behaviour actually occurred; and, in our judgment, that is correct; not only is there no express finding, but reading the Judgment as a whole one cannot find sufficient, adding together various strands, to amount to such a finding.  That being so, it is obvious that there is no criticism to be made of a finding which the Tribunal did not make.  Why they did not make that finding we do not know.  It may have been accidental; we do not need to speculate, as there is no cross‑appeal about it, nor is there any need for us to say any more on that topic.

43.	We turn to ground 12, which asserts that the Tribunal reached a perverse conclusion in finding that the monkey incident had happened.  The only evidence about the monkey incident came from the Claimant.  There was evidence as to what other people had said in response to the investigation, but nobody was called by the Respondent to give a different version.  He said (and we have been helpfully provided with his witness statement, and we have assumed, and nobody has suggested to the contrary, that his witness statement constituted his evidence‑in‑chief with supplementary questions of no relevance), that some time in June in the afternoon a van was parked outside the home by a resident’s son.  There was a monkey in the van.  The Claimant was upstairs at the time, and heard his name being shouted repeatedly at the monkey by care staff.  Then another nurse, Arma Celestine, came upstairs yelling and insisted that he should come with her to have a look at the monkey in the van, an invitation that he declined.  As we say, there appears to be no evidence on the other side.

44.	It is suggested that the Claimant was upstairs when he heard his name being shouted, and did not see or witness the shouting or the cause.  He was, however, entitled to state the cause; he was being shouted at in relation to the monkey.  He does not have to have seen the people who were shouting and does not even have to be able to identify the persons who were shouting.  His name was being shouted at the monkey; that was his evidence, and then Ms Celestine came upstairs and insisted that he should come down with her to have a look at the monkey.  It was, in our judgment, permissible for the Tribunal to find as they did that that incident occurred broadly as described by the Claimant.  We have already described the high hurdle that confronts an appellant who seeks to argue that a finding of fact was perverse; that high hurdle has not been overcome in this case.  There appears to be no suggestion that the Tribunal, having found the facts, did not act appropriately in finding that that was differential treatment and that there was no adequate explanation; there was no adequate explanation because no evidence was called about it, and thus we need not take this point any further.

45.	The first ground 13 goes to the application of the three‑month time limit to the monkey incident, it having occurred in early June 2009, and the ET1 having been presented in October.  However, it is accepted that if we come to a conclusion on ground 2 (the act extending over a period ground) in favour of the Claimant, this ground goes.  We have so concluded; so we say no more about this ground.

46.	Lastly, in terms of liability, in the second ground 13 in the Notice of Appeal it is argued that the Tribunal made the mistake of inferring a difference in treatment which could be caused by discrimination only from unreasonable conduct.  This is in particular, no doubt, in relation to the failure to investigate, although, as it is put, the argument appears to embrace everything.  We have said earlier that the Tribunal at paragraph 22 expressly reminded themselves not to make that mistake, as they also reminded themselves to take into consideration all the potentially relevant non‑discriminatory factors; and in our judgment there is nothing persuasively to demonstrate that they did make the mistake which the ground asserts.  It is to be noted that, at the end of paragraph 22, referring to the chimp incident and to the failure to take the Claimant’s complaint about that incident seriously, the Tribunal said, “this was not just unreasonable treatment; the Tribunal is satisfied that it was unreasonable treatment on grounds of the claimant’s race”.  Thus we reject, too, that ground.

47.	That brings us to the last ground, which is a very limited ground as now developed.  Although originally there was an attack on the Tribunal’s award of compensation for psychological injury, it is now accepted by Mr Sonaike that there was some evidence to support that finding.  This ground therefore came down to a discussion about the extent to which the Tribunal’s findings as to compensation would have to be reconsidered if we found in the Respondent’s favour on any of the grounds of appeal in relation to any of the aspects of discrimination that the Tribunal found to have existed.  Since we have not found in their favour, this ground need not be considered any further, so we also say no more about that.

Conclusion
48.	We have, we think, now dealt with all of the grounds that have been advanced.  We are grateful to counsel on both sides for dealing with something like 15 grounds of appeal between them in just over two‑and‑a‑half hours. That demonstrates admirable economy which we may not have been able to match in this Judgment, but we have tried to deal with all the matters with which we felt it was necessary to deal.  The appeal is dismissed.