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Cite as: [2009] UKEAT 0412_08_0810

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BAILII case number: [2009] UKEAT 0412_08_0810
Appeal No. UKEAT/0412/08

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
             At the Tribunal
             On 5 May 2009
             Judgment delivered on 8 October 2009

Before

HIS HONOUR JUDGE McMULLEN QC

PROFESSOR S R CORBY

SIR ALISTAIR GRAHAM KBE



ST CHRISTOPHER’S FELLOWSHIP APPELLANT

MS B WALTERS-ENNIS RESPONDENT


Transcript of Proceedings

JUDGMENT

© Copyright 2009


    APPEARANCES

     

    For the Appellant MS H WINSTONE
    (of Counsel)
    Instructed by:
    Messrs Trowers & Hamlins LLP
    Sceptre Court
    40 Tower Hill
    London EC3N 4DX

    For the Respondent MR P LINSTEAD
    (of Counsel)
    Instructed by:
    Messrs Thackray Williams Solicitors
    Kings House
    32-40 Widmore Road
    Bromley
    Kent BR1 1RY


     

    SUMMARY

    PRACTICE AND PROCEDURE: Case management

    UNFAIR DISMISSAL: Constructive dismissal

    RACE DISCRIMINATION: Burden of proof

    An Employment Tribunal did not err in law when it upheld the Claimant's claim in part that she had been discriminated against by being excluded from a recruitment process, in which as a manager she should have been involved, on the ground of her race, and as an aggregate of all the events of which the Claimant complained she was constructively unfairly dismissed. The Tribunal's refusal to allow a Respondent's late application to call new witnesses was not an error of law or an unfair procedure but was within its case-management powers.


     

    HIS HONOUR JUDGE McMULLEN QC

  1. This appeal is about constructive unfair dismissal, race discrimination and case management of witnesses by an Employment Tribunal. This is the judgment of the Court to which all members appointed by statute for their diverse specialist experience have contributed. We will refer to the parties as the Claimant and the Respondent.
  2. Introduction

  3. It is an appeal by the Respondent in those proceedings against a judgment of an Employment Tribunal chaired by Employment Judge Hyde sitting over seven days and a day in private at London (South) registered with reasons on 24 June 2008. The Claimant has been represented by Mr Peter Linstead of counsel. The Respondent is represented here by Ms Hilary Winstone and by different counsel below. The Claimant claimed unfair dismissal, race discrimination and victimisation. The Respondent denied dismissal and contended its actions were fair and non-discriminatory. The Tribunal upheld the claim of unfair dismissal and only one of the many claims of race discrimination. The Respondent appeals. A remedy hearing was subsequently conducted over one day, and on 6 November 2008 a judgment and reasons were sent to the parties by which the Respondent was ordered to pay £28,195.80 by way of compensation for unfair dismissal and £14,767 in respect of race discrimination. There is no separate appeal from that judgment.
  4. Directions sending this appeal to a preliminary hearing were given in chambers by HHJ Ansell. He found the judgment "somewhat rambling", and the relevant issues needed to be selected. This was done at a preliminary hearing by HHJ Reid QC and members. The Notice of Appeal was cut down before sending the remainder to the full hearing but no reasons are extant to assist us.
  5. The legislation

  6. The relevant provisions of the legislation are not in dispute. Section 1(1) of the Race Relations Act 1976 outlaws direct and indirect discrimination on racial grounds. By section 3, racial grounds include colour and race. The form of discrimination in this case is set out in section 4(2)(c), i.e. subjecting the Claimant to "any other detriment" than dismissal.
  7. Very substantial powers of case management are given to an employment tribunal by the 2004 Employment Tribunal Rules, which include at Regulation 3 the overriding objective to deal with a case justly and by Rule 10 case managing proceedings, including the making of decisions in relation to witnesses.
  8. An overview of the Employment Tribunal Judgment

  9. This case has been made excessively complicated by the number of issues required to be decided by the Employment Tribunal. At a CMD, some 50 issues of fact were set out over 5 pages. In addition, there are 11 issues of law. The 50 issues of fact were answered in a summary check-list form extending over 6 pages, responding to each of the issues. The Tribunal did not set out the relevant provisions of the statute nor the authorities relied upon, being content simply to say that it had received written submissions from both counsel. Thus its account of the submissions and the relevant law takes up no more than 10 lines in a judgment of 42 pages. It is not sufficient for an employment tribunal to give an account of the law simply by saying it has received submissions: see Rule 30.
  10. A very large number of the issues has now fallen away by reason of the limited findings of the Employment Tribunal and the dismissal of certain points at the EAT. Nevertheless, since the claim of constructive dismissal roams over the territory of the criticisms made by the Claimant of the Respondent's conduct, some of which was alleged to have been racially discriminatory, many of the issues are still live.
  11. The Employment Tribunal took an astringent approach and found three significant matters relating to constructive dismissal upon which it based its finding that there had been a dismissal and that it was unfair; and three significant allegations of race discrimination as to which it found only one to have been proved.
  12. The facts

  13. The Claimant is black African Caribbean. She had been employed as Manager of the Fostering Department at a salary of about £48,000 a year. The Respondent runs care homes and a fostering service. Its head office is in Putney, and the Claimant worked at Mitcham, both in South-west London, and it has offices in Southend, Essex. The Claimant is a successful businesswoman. She opened her business of Elite Fostering Limited in 2003. On 23 January 2006, the Respondent bought the business, and the Claimant's employment transferred to the Respondent. By November 2006, she was expressing dissatisfaction, in part relating to her profit share.
  14. The Respondent contends that the Employment Tribunal had overlooked important aspects of this commercial transaction. It did, however, find (paragraph 24) that these were a relevant background to the employment issues in the case. The role of the Claimant was particularly important for the Tribunal found this:
  15. 29. The Respondent confirmed to the Claimant in e mail correspondence at a fairly early stage (May 2005) that she would be regarded as Head of the Fostering Services of the Respondent. This was not subsequently varied nor was it dependent on any other matters. It is understood by both the Claimant and Mr O'Shaughnessy who was conducting the negotiations with her at the time that this assurance was given, that this would mean that the Claimant would have a significant role in recruitment decisions. It was also understood prior to the transfer that all fostering communications and decisions would happen through the Claimant. The title Fostering Manager was necessary for external regulatory purposes. The Claimant was further entitled to expect on the basis of negotiations before her employment commenced that she would have a central role in the development of the Mitcham office and the Southend services plus any other fostering opportunities being taken up by the Respondent. Further Mr O'Shaughnessy agreed with the Claimant that she would be given a high degree of autonomy in running the business (a reference to the fostering service of the Respondent). It was anticipated that she would run the fostering services ("this part of the organisation") very much as she was doing when she was managing Elite Agency." (our emphasis):

  16. The other actors in this drama are Mr O'Shaughnessy, who is Director of Development, Ms Morgan, Director of Human Resources, Mr Parker, Head of Children's Services and the Claimant's line manager. Two other managers were relevant as to which the Tribunal made the following finding:
  17. "16. The Respondent made an application at the end of the first part of the hearing in January 2008, on the fifth day of the Hearing, to call the Chief Executive Jonathon Farrow and Mark Earl, Human Resources Officer/Administrator to give evidence. No witness statements had been provided for these witnesses and the Claimant objected to them being called to give evidence. The Tribunal refused to allow those witnesses to give evidence, having regard to the stage of the proceedings at which the application was made, the absence of good reason for the failure to adduce witness statements for the witnesses at the directed time, and to the overriding objective."

  18. Two comparators were cited by the Claimant for the purposes of her discrimination claim, Sue Dove and Karen Irving, but the Tribunal rejected both. Relevant however are Kayleigh Morrison, who is the Claimant's stepdaughter and was employed in the business, and Margaret Haywood, who had previously worked with the Claimant and in respect of whose continued employment an issue arose concerning her possible employment at the Southend office.
  19. The Respondent care organisation is regulated by statute and by code, which prescribe the circumstances in which staff may be appointed by their family members. The Respondent was scrupulous to demonstrate its adherence to the principles of non-favouritism.
  20. The events fell within a short period. In December 2006 there was a dispute about the recruitment of Kayleigh Morrison. In January and February 2007 there were disputes about the recruitment of a manager for the Southend office, the expectation of the Claimant that Ms Haywood be a candidate, and the exclusion of the Claimant from further participation in that exercise. The Claimant raised a grievance. She went off sick on 26 March 2007 (she returned to work on 6 April 2007, 11 days later, and continued to work to the end of her notice period) and received a written response to her grievance on 20 April 2007. On 10 May 2007 she gave notice and her employment terminated on 9 July 2007.
  21. Having worked through the very substantial list of issues, the Employment Tribunal singled out three which formed the basis of the Claimant's constructive dismissal. The Tribunal said this:
  22. "137. The Tribunal considered the Claimant's submission that the constructive dismissal complaint was based on a last straw argument and the Tribunal should look at the cumulative effect of the various matters relied on by the Claimant. Having considered the findings of fact above the Tribunal considered that three matters dominated. The first was the Kayleigh Morrison selection procedure and the way in which it was handled by the Respondent. Whilst the Tribunal acknowledged that the Respondent had legitimate and valid reasons for seeking to ensure that they were not susceptible to criticism for the recruitment and appointment of the stepdaughter of a member of staff, the Respondent did not deal with this matter appropriately with the Claimant, and had no reasonable and proper cause for giving her such inadequate explanations even after the Christmas period when only Mr Earl was covering the HR department.
    138. The restrictions on the Respondent's ability to appoint new members of staff who had a connection with existing staff arose from their role as a housing association. The Claimant, to the Respondent's knowledge, had no background in this field as she came from a social work background. Further the Respondent's Human Resources officer was himself unfamiliar with the details and the rationale for concern. This was reflected in the confused way in which he communicated the information to the Claimant which, quite reasonably, fed her suspicions about what was going on. The Claimant also took appropriate action to dispel her suspicions about the actions being taken in respect of Kayleigh Morrison by communicating them to the Respondent through her line manager. She raised objections about the two occasions on which head office had intervened in the appointment of Kayleigh Morrison. These did not elicit proper explanations. The Tribunal considered that the manner in which the Respondent dealt with the Claimant's grievance about these issues reflected their attitude towards her at the time. Thus Ms Morgan's description of the position in relation to Kayleigh Morrison in April 2007 was somewhat grudgingly apologetic for the muddle that was in fact presented to the Claimant at the time. Immediately after stating that Mr Earl did not 'perhaps' provide the Claimant with a full explanation on these points and apologising for this, Ms Morgan continued, 'But if you were not satisfied with his response to you, I do not understand why you did not contact me. I could have cleared the matter up immediately'. She went on to acknowledge that Mr Earl did not have as much understanding about the issue of Schedule 1 of the Housing Act as she believed.
    139. Against this background the difficulties that emerged with the second significant issue, namely the recruitment of the Southend administrator in late February/early March 2007, were extremely damaging. The significant elements of the recruitment process were the failure to address directly with the Claimant the fact that the Respondent intended to exclude her from the selection process, and the reasons for doing so. The Claimant would have been entitled to be deeply distressed by this action even if it had not initially been intended that she should take part in the process. The change of heart of which she became aware at the beginning of March 2007 can only have been very damaging to the mutual trust and confidence given the lack of explanation and as it turned out the absence of a good reason for excluding her from the process. The exclusion carried with it a clear implication at the very least that the Respondent did not consider that it was appropriate for the Claimant to exercise normal line management responsibilities as Head of Fostering, and at worst that she could not be trusted for some unspecified reason to participate in the recruitment of a relatively junior member of her staff. Mrs Walters-Ennis asked for but was not given an explanation. She made it clear to her line manager at the time that she did not understand what the reason for the action was.
    140. The final nail in the coffin in the Tribunal's view was the way in which the Respondent dealt with the Claimant's grievance dated 26 March 2007. Having set out her grievance in detail, and having complained that she believed that she was the subject of race discrimination and bullying by the Respondent and Mr Farrow in particular, the Claimant was reasonably entitled to expect a more appropriate response, and certainly a response which complied with the Respondent's own procedures. There was no reference in Ms Morgan's letter to having brought the matters complained of to Mr Farrow's attention. She simply denied for example that there had been a directive. The tone of the response was in the Tribunal's view somewhat dismissive and patronising. The Claimant was reasonably entitled to believe that her grievance had not been properly investigated and the Respondent did not particularly value her or her well being as an employee. The failure to deal with the grievance in accordance with the procedure was not justified.
    141. The attempts, two or three weeks later, once the Claimant handed in her resignation, to pass a message to the Claimant through Mr Giddens in an informal meeting in a pub, that Ms Morgan's response was not the end of the matter and that Mrs Walters-Ennis could have a face to face meeting was unsuccessful, as the Tribunal has found. In any event, the Tribunal considered that Ms Morgan was only prompted to offer the face to face meeting (albeit indirectly) by the fact that the Claimant had tendered her resignation and she must have been aware how significant the way in which she had dealt with the grievance was. However, the failure to treat the grievance sufficiently seriously even at that late stage and/or to respond at all to the resignation letter until the letter from Mr Farrow just before the Claimant left must have further confirmed the Claimant in her perception that the Respondent no longer wanted her as part of its organisation.
    142. In assessing the effect of the Respondent's actions on the Claimant, the Tribunal gave careful consideration to the probable reactions of a hypothetical employee in the Claimant's position with whom there had been no background of difficulties surrounding the financial arrangements following the merger. On the other hand, the Respondent was the other party to the discussions about the renegotiation of the terms. To the extent that those discussions put a strain on the relations between the parties, they ought to have anticipated that effect. The Tribunal emphasises however that the conclusions reached on the issue of constructive dismissal were reached on the basis that the Tribunal concluded that any senior employee occupying the position Mrs Walters-Ennis did, and on the basis agreed with Mr O'Shaughnessy as to the level of her authority and autonomy, would on reasonable grounds have interpreted the Respondent's actions as constituting a fundamental breach of the term of mutual trust and confidence. The Tribunal in effect rejected the Respondent's contention that the probable causes for the Claimant's resignation were her deep dissatisfaction with the terms of the Deed of Transfer and her unjustified belief that she was no longer in control of the Fostering Services."

  23. On the basis of those findings, the Claimant's claim to have been constructively dismissed unfairly was upheld.
  24. Turning to race discrimination, the Tribunal upheld only one of the three claims it identified as the Claimant's case. It held this:
  25. "143. The race discrimination complaint was put on the basis that, aside from race, there was no other explanation for the high handed way in which the Claimant was treated, such as being excluded entirely from recruitment decisions, certain matters in relation to management, and the Respondent's lack of communication. It appeared to the Tribunal that the Claim form raised specific complaints of direct race discrimination at paragraphs 20 (withdrawal of Kayleigh Morrison's post); 26 (exclusion from recruitment for Southend administrator); 36 (excluded and sidelined by comparison with Sue Dove, the new manager in Southend).
    147. The exclusion of the Claimant from the recruitment of the Southend administrator was the next complaint of direct race discrimination. The Respondent compounded the earlier difficulties relating to Kayleigh Morrison by failing to give any explanation to the Claimant for the exclusion. It also followed hard on the heels of the Claimant's complaint in mid February 2007 to Gordon Parker about her judgment being questioned. The difference between this issue and the earlier one concerning the recruitment of Kayleigh Morrison is that Ms Morrison was the Claimant's stepdaughter to everyone's knowledge. The potential for offending the rules as to conflict of interest or lack of probity is therefore obvious. Whatever was going on behind the scenes, Mr Parker (and the Respondent) singularly failed to communicate appropriately with the Claimant about why they felt she needed to be kept out of the Southend recruitment. The nature of the relationship between Ms Haywood and the Claimant was not apparent. The Tribunal considered that the failure to clarify its nature and to agree with the Claimant how to deal with any issue arising in terms of the recruitment exercise was patronising and contemptuous. Excluding Mrs Walters-Ennis led to the unusual situation of the selection decision being made by a manager who had not been involved in the shortlisting stage. Further, Mr Parker's witness statement evidence as to his lack of involvement in the recruitment process was contradicted by his own record of involvement in the shortlisting stage which emerged as part of the documents disclosed after the Hearing was underway [R6]. These circumstances taken with the relevant differences in race led the Tribunal to consider that the Claimant's treatment could have been on racial grounds.
    148. Taking all those matters into account, the Tribunal considered that the burden of proof had shifted to the Respondent to prove that the Claimant's race (colour) formed no part whatsoever of the reason for the exclusion. The Respondent failed to do so. The Respondent's failure to address this issue by way of direct evidence from Mr Parker, Mr Farrow or Mr Earl left a good deal unexplained. In addition, the Tribunal had no confidence in the evidence given on this issue by Lynda Morgan as it did not appear to be based on a proper investigation of the events. Thus at paragraph 26 of her witness statement she repeated the Respondent's position that the post had been advertised both internally and externally which implied that the Respondent had been open about the recruitment at the time contrary to the Claimant's case. There was not a shred of evidence to support that contention. In fact, as emerged from the oral evidence and later disclosure, the Respondent contacted an agency to request cvs of likely candidates. As stated above although Mr Parker was involved in the shortlisting, he failed to deal with this in his witness statement saying only, incorrectly, that he had no involvement other than to confirm the position of the successful candidate.
    149. Ms Morgan's statement at paragraph 27 described the Respondent's reasons for excluding the Claimant. She gave no detail however of the process such as describing who was involved and when this decision was taken. She also gave no explanation as to why the Claimant was not consulted. It was also an unsatisfactory account in the light of the late disclosure. She asserted that the Claimant was excluded from the process, '[as] Margaret had applied for the role ...' However, the evidence showed that Mrs Walters-Ennis was excluded from the recruitment process before Ms Haywood even knew that the Respondent was recruiting for the vacancy.
    150. In order to discharge the burden of proof, a Respondent must put forward cogent evidence of the reason for the treatment. The Respondent's evidence on this issue fell far short. In all the circumstances, the Claimant was racially discriminated against by being excluded from the recruitment process of the Southend administrator."

    The Respondent's case

  26. On behalf of the Respondent, Ms Winstone contends that the Employment Tribunal was wrong in the application of the burden of proof, arguing that the Tribunal did not find sufficient material upon which racial discrimination could be found such as to shift the burden of proof under section 54A of the Race Relations Act 1976 to the Respondent. In any event, the Respondent had a sufficient explanation as to the exclusion of the Claimant from taking part in the process of selection where Ms Haywood, thought (wrongly) to be a close friend, was a candidate for a short period. It was contended that the Tribunal had made an error of fact in that the Respondent had excluded the Claimant only after it discovered that Ms Haywood was a candidate, and not before.
  27. It is further contended that the Respondent's explanation as to the treatment of the Claimant in relation to the Southend appointment should have been accepted by the Employment Tribunal, i.e. the relationship thought to exist between the Claimant and Ms Haywood. The Tribunal failed to deal with the issue of a comparator although it is accepted by Ms Winstone it is not in every case required that there be an examination of actual or hypothetical comparators provided the Tribunal has found the "the reason why" the Respondent acted as it did in relation to the issues put against it.
  28. In relation to unfair dismissal, listed low down 8 of 8 in Ms Winstone's grounds of appeal, it is contended that the Tribunal failed to give "proper consideration to the wealth of evidence" in relation to matters put before it. This is particularly in relation to the deed of sale.
  29. Finally, it is contended that the Tribunal erred in law in excluding the two witnesses sought to be adduced by the Respondent to give evidence before it. It is accepted that this was a late application occurring deep into the trial after the Claimant had already given her evidence pursuant to directions of the Employment Tribunal to produce and exchange this material in writing in advance.
  30. The Claimant's case

  31. On behalf of the Claimant, Mr Linstead contends that the Employment Tribunal considered, in respect of the sole issue upon which it found in favour of the Claimant, the correct allocation of the burden of proof. The finding as to the reason why the Respondent treated the Claimant less favourably than others was correct. The detriment was the recruitment process rather than simply standing her down from interviews. The sequence of events constituting constructive dismissal in aggregate constituted reasons for the Claimant to contend that there had been a repudiatory breach of the contract of employment, and the Tribunal was correct so to find. The exclusion of the two witnesses' evidence, Mr Farrow and Mr Earl, was a matter of case management. The Respondent had not complied with the orders of the Tribunal, and it could not be said that the evidence of the Claimant disclosed new material upon which it was necessary for the Respondent to respond late in the day by new evidence. Mr Farrow and Mr Earl were directly implicated in the Claimant's case and should have been there to give evidence. It was not appropriate for the Tribunal to abort the proceedings, nor over the space of the adjourned proceedings was any attempt made to appeal against this decision.
  32. Neither in respect of constructive unfair dismissal nor the exclusion of the witness evidence did we find it necessary to call upon Mr Linstead to add anything to his written skeleton.
  33. The legal principles

  34. Our approach to this case is regulated by the principles set out in the following authorities. In Laing v Manchester City Council [2006] ICR 1519 at paragraph 52 the EAT, Elias P and members said the following:
  35. "The proper construction of the burden of proof provision was considered by the Court of Appeal in the Igen case. Peter Gibson LJ handed down the judgment of the Court. At paragraph 17 he said this:
    '17. The statutory amendments clearly require the employment tribunal to go through a two-stage process if the complaint of the complainant is to be upheld. The first stage requires the complainant to prove facts from which the ET could, apart from the section, conclude in the absence of an adequate explanation that the respondent has committed, or is to be treated as having committed, the unlawful act of discrimination against the complainant. The second stage, which only comes into effect if the complainant has proved those facts, requires the respondent to prove that he did not commit or is not to be treated as having committed the unlawful act, if the complaint is not to be upheld.' "

  36. The judgment of the Court of Appeal in Igen v Wong [2005] IRLR 258 is distilled in the subsequent judgment of the Court of Appeal in Madarassy v Nomura International PLC [2007] IRLR 246 where Mummery LJ giving the judgment of the Court said the following:
  37. "56
    The court in Igen v Wong expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the tribunal could conclude that the respondent 'could have' committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal 'could conclude' that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.
    57
    'Could conclude' in s.63A(2) must mean that 'a reasonable tribunal could properly conclude' from all the evidence before it. This would include evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint. Subject only to the statutory 'absence of an adequate explanation' at this stage (which I shall discuss later), the tribunal would need to consider all the evidence relevant to the discrimination complaint; for example, evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the complainant were of like with like as required by s.5(3) of the 1975 Act; and available evidence of the reasons for the differential treatment.
    70
    Although no doubt logical, there is an air of unreality about all of this. From a practical point of view it should be noted that, although s.63A(2) involves a two stage analysis of the evidence, the tribunal does not in practice hear the evidence and the argument in two stages. The employment tribunal will have heard all the evidence in the case before it embarks on the two stage analysis in order to decide, first, whether the burden of proof has moved to the respondent and, if so, secondly, whether the respondent has discharged the burden of proof."

  38. Where an explanation has been given by a Respondent for its conduct, it is open to a Tribunal to make findings as was made clear in The Law Society v Bahl [2003] IRLR 640 at paragraph 174 where Elias J and members said this:
  39. "174. That leaves the fact that Mr Sayer was an unsatisfactory witness. In an appropriate case, where the tribunal does not believe the explanation for particular treatment, that may justify a finding of discrimination, as Neill LJ's judgment in King shows. . (This presupposes that the primary finding justifies the inference that the explanation is not credible; as we indicate below, we do not think in this case that they always do.) However, where the tribunal has accepted the explanation he gave for certain conduct, the fact that the reason was unsatisfactory, in the sense of being unjustified or unreasonable, does not justify any inference of discrimination; to hold to the contrary is to fall into the Zafar trap."
  40. All this is guided by the speech of Lord Nichols in Shamoon v Chief Constable of the RUC [2003] IRLR 285,289 HL where he said the following:
  41. "7
    With this introduction, I turn to consider the application of these provisions in practice. In deciding a discrimination claim, one of the matters employment tribunals have to consider is whether the statutory definition of discrimination has been satisfied. When the claim is based on direct discrimination or victimisation, in practice tribunals in their decisions normally consider, first, whether the claimant received less favourable treatment than the appropriate comparator (the 'less favourable treatment' issue) and then, secondly, whether the less favourable treatment was on the relevant proscribed ground (the 'reason why' issue). Tribunals proceed to consider the reason-why issue only if the less favourable treatment issue is resolved in favour of the claimant. Thus the less favourable treatment issue is treated as a threshold which the claimant must cross before the tribunal is called upon to decide why the claimant was afforded the treatment of which she is complaining.
    11
    This analysis seems to me to point to the conclusion that employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was. Was it on the proscribed ground which is the foundation of the application? That will call for an examination of all the facts of the case. Or was it for some other reason? If the latter, the application fails. If the former, there will be usually be no difficulty in deciding whether the treatment, afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others.
    12
    The most convenient and appropriate way to tackle the issues arising on any discrimination application must always depend upon the nature of the issues and all the circumstances of the case. There will be cases where it is convenient to decide the less-favourable-treatment issue first. But, for the reason set out above, when formulating their decisions employment tribunals may find it helpful to consider whether they should postpone determining the less-favourable-treatment issue until after they have decided why the treatment was afforded to the claimant. Adopting this course would have simplified the issues, and assisted in their resolution, in the present case."

  42. There is no requirement for either an actual or a hypothetical comparator provided the Tribunal can answer the "reason why" question: Shamoon.
  43. What must be borne in mind is that unfair or unfavourable treatment is a different concept from discriminatory treatment as was made clear by Zafar [1998] IRLR 36 HL. As to whether or not evidence of unreasonable or atypical behaviour is relevant, the judgment of the Court of Appeal in Brown v Croydon LBC [2007] ICR 909 at paragraph 25 is of assistance.
  44. "25. In other circumstances, where there is no actual comparator, the employee must rely upon a hypothetical comparator. Again, in some cases it may be relatively plain to a Tribunal that the burden switches to the employer. That is likely to occur, for example, where the employer acts in a way which would be quite atypical for employers. Conversely, if the employer acts in a way which would appear perfectly sensible, and does the kind of thing which most employers would do, then the burden is unlikely to transfer. For example, if an employer warns an employee for drunkenness at work, and it is not disputed by the employee that he was drunk, it is not likely in those circumstances, in the absence of particular evidence demonstrating otherwise, that that would create an inference of less favourable treatment so as to require some explanation for the employer."

  45. Where an allegation of perversity arises on appeal at the EAT, there is a high threshold to cross which requires an overwhelming case to be made. See Yeboah v Crofton [2002] IRLR 634.
  46. Finally, in relation to the Employment Tribunal's power to regulate its procedure, the judgment of the Court of Appeal in Noorani v Merseyside TEC [1999] IRLR 184 is helpful per Henry LJ at paragraph 32:
  47. "32. I am satisfied, contrary to what the Employment Appeal Tribunal found, the ET were here exercising the classic discretion of the trial judge in the issue of witness summonses and in like matters. Such examples of such a discretion lie not only in the issue of witness summonses but whether to grant an adjournment or whether to order the trial of a preliminary issue etc. These decisions are entrusted to the discretion of the court at first instance. Appellate courts must recognise that in such decisions different courts may disagree without either being wrong, far less having made a mistake in law. Such decisions are, essentially, challengeable only on what loosely may be called Wednesbury grounds, when the court at first instance exercised the discretion under a mistake of law, or disregard of principle, or under a misapprehension as to the facts, where they took into account irrelevant matters or failed to take into account relevant matters, or where the conclusion reached was 'outside the generous ambit within which a reasonable disagreement is possible', see v G [1985] 11 WLR at 647."

    Discussion and conclusions

  48. Applying those principles, we prefer the arguments of the Claimant. As to Tribunal procedure, it was entirely open to the Respondent to deal with the allegations made by the Claimant through the evidence of its leading officers responsible for decision-making at the time. We do not accept that the Claimant surprised the Respondent in the allegations she made. The two officers whose evidence was not allowed to be brought forward were in the thick of it, and it should have been predicted by the Respondent that their evidence would have been important when it came to examining the mind of the decision-maker in respect of allegation of discrimination. This was entirely a matter of case management and discretion for the Employment Tribunal. Bearing in mind the stage at which the proceedings had been reached and the complex pre-trial orders already made, we see no error in the Tribunal's approach.
  49. As to constructive dismissal, the Tribunal was entitled to filter out all the allegations that the Claimant made and to fine them down to three. Those were matters upon which the Tribunal made findings contrary to the Respondent's case, matters of fact and degree. It was not necessary for us to call upon Mr Linstead to deal with them. As to whether they in aggregate constituted a repudiatory breach, we hold the Tribunal was correct in its approach.
  50. We then turn to race discrimination. It will be recalled that the Claimant succeeded on only one finding in relation to a wealth of complaints. This was the appointment of the administrator at Southend. Contrary to the Respondent's submissions, we hold that the issue is not about the exclusion of the Claimant from the interviewing process but was about her exclusion from the recruitment process as the Tribunal in shorthand describes it. This was not simply attending the interview panel, but all stages prior to it. As Ms Winstone acknowledged in her oral submissions, the autonomy of the Claimant in her role was important. Autonomy as a manager includes participation in recruitment. The Claimant had been excluded by reason of the Respondent's wrong appreciation of the relationship between herself and Ms Haywood from involvement in the Southend recruitment process. It is not disputed that to undermine a manager by taking away an important role in her job may constitute a detriment for the purposes of the Race Relations Act. This is what the Tribunal found to have occurred and it rejected the Respondent's explanation. The Tribunal applied the law correctly as it had determined it to be.
  51. The appeal is dismissed.


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URL: http://www.bailii.org/uk/cases/UKEAT/2009/0412_08_0810.html