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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Ballamoody v. Nursing & Midwifery Council [2003] UKEAT 0079_03_2410 (24 October 2003) URL: https://www.bailii.org/uk/cases/UKEAT/2003/0079_03_2410.html Cite as: [2003] UKEAT 79_3_2410, [2003] UKEAT 0079_03_2410 |
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At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE KEITH
MRS A GALLICO
MR P R A JACQUES CBE
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | MR R BALLAMOODY (the Appellant in Person) |
For the Respondent | MR M SUTTON (of Counsel) Instructed by: Messrs Ward Hadaway Solicitors Sandgate House 102 Quayside Newcastle upon Tyne NE1 3DX |
THE HONOURABLE MR JUSTICE KEITH
Introduction
The relevant facts
The relevant statutory provisions
1 (1) "A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if -
(a) on racial grounds he treats that other less favourably than he treats or would treat other persons….."
If the Council's treatment of Mr Ballamoody in refusing his second application for the restoration of his name to the Register amounted to discrimination, it was accepted by the Council that section 12(1) of the Act would have rendered that discrimination unlawful. Section 12(1) provides, so far as is material:
12 (1) "It is unlawful for [a]…body which can confer [a]…qualification which is needed for…engagement in a particular profession…to discriminate against a person -
…
(b) by refusing…his application for it…"
The Tribunal's approach
3 (4) "A comparison of the case of a person of a particular racial group with that of a person not of that group under section 1(1) … must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."
The operation of this section was summarised by Ward LJ in Ballamoody v United Kingdom Central Council for Nursing, Midwifery and Health Visiting [2002] ICR 646, in which Mr Ballamoody successfully appealed against the striking out of his current claims at paragraph 54 as follows:
54 "The task set by section 3(4) is broadly to compare like with like. It is the same under section 5(3) of the Sex Discrimination Act 1975. If the applicant can point to an actual person whose circumstances are the same or not materially different from his own, then so much the better. Frequently, however, there may be no actual comparator whom it can be shown has been treated more favourably than the applicant. In those circumstances it is necessary to construct a hypothetical comparator to show how a person of the other racial group would have been treated."
12 "…it is all too easy to become nit-picking and pedantic in the approach to comparators. It is not required that a minutely exact actual comparator has to be found. If that were to be the case then isolated cases of discrimination would almost invariably go uncompensated."
As the Tribunal commented in the present case, "to identify a hypothetical comparator who is virtually identical to the applicant when a true comparator of such description cannot be found renders the exercise of comparison almost irrelevant." It was against that background that the Tribunal took as the hypothetical comparator the model advanced on Mr Ballamoody's behalf.
The ground of appeal
6 "The Tribunal having accepted the hypothetical comparator advanced on behalf of [Mr Ballamoody], found that there would have been a difference in treatment between [Mr Ballamoody] and that hypothetical comparator, and yet have concluded that the explanation put forward by the [Council] is an adequate and acceptable one so that no direct discrimination arose. It is this part of the appeal which we think ought to proceed to a full hearing without in any way giving an indication as to how the matter may be ultimately resolved."
31 "If [Mr Ballamoody] had presented before the Committee in 1998 with reasonably sound references and with an approach to the Committee which led them to believe that he had had insight into the circumstances surrounding his conduct, this Tribunal is of the unanimous view that [Mr Ballamoody] would have been restored to the Register."
That, no doubt, was why, although not actual comparators, other persons who Mr Ballamoody identified as persons whose names were not removed from the Register in the first place, were treated in the way that they were.
39 "The Tribunal would also wish to add that, if the correct comparator should not be as identified by [Mr Ballamoody's counsel] but suggested by Mr Sutton, the Tribunal's decision would be exactly the same, namely that such comparator would have been treated in exactly the same way as [Mr Ballamoody]."
52 "The crucial question is whether there was discrimination, and it would defeat the purpose of the [Act] if this question could not be addressed simply because the complainant was unable to point to anyone else who was in fact in the same position as she was. Isolated or unique cases would be left without the protection which the legislation is designed to provide."
Perhaps these cases should be approached on the basis that it may be a little artificial to divide into separate compartments the issue of whether an applicant has been treated less favourably than a proper comparator would have been treated and the issue whether that difference in treatment was attributable to racial grounds. As Lord Nicholls of Birkenhead said at paragraphs 8 and 11:
8 "No doubt there are cases where it is convenient and helpful to adopt this two step approach to what is essentially a single question: did the claimant, on the proscribed ground, receive less favourable treatment than others? But, especially where the identity of the relevant comparator is a matter of dispute, this sequential analysis may give rise to needless problems. Sometimes the less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue. The two issues are intertwined.
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."
Conclusion
43 "Although not a matter which is strictly within the province of this Tribunal, its members felt that it was appropriate to express its sentiments regarding [Mr Ballamoody's] position generally. Although the amount of litigation in which [Mr Ballamoody] has been involved over the years is prodigious, [Mr Ballamoody] presented his evidence to the Tribunal in a calm and moderate manner. He is, as other Courts have identified, an intelligent person. The offences in respect of which he was convicted and for which he was removed from the Register, though obviously serious, were not of a 'heinous' nature. They occurred as long ago as 1992. He had not been found guilty of any misconduct prior to or since those offences, even though he remained practising as a registered nurse unti1 1996. The [Council's] witnesses confirmed that 'all other things being equal', a person in [Mr Ballamoody's] position who had satisfied the Committee as to proper 'insight' into the circumstances leading to his or her removal and had provided clearer and better details and references regarding his activities would most likely have been restored to the Register by now. The Tribunal feels that, if only the [Mr Ballamoody] could make the mental transition from preoccupation with the perceived injustices of the past, concentrate on his skills rather than his weaknesses and realise that it is for him to satisfy the [Committee] that it is safe and proper to restore him to the Register rather than expect it to rectify an 'historic wrong', then the chances are that he cou1d achieve his desired objective of restoration to the Register. He is urged by this Tribunal, hopefully with proper advice and assistance, to revise his approach to the problem. Equally, however, and without any way presuming to have the temerity to seek to interfere with the [Council's] exclusive responsibilities in this area, it may be that any future application for restoration by [Mr Ballamoody], on the assumption he plays his part in the equation, can be considered by the [Committee] in the light that different persons have different personalities and preoccupations and that the 'wood should not be hidden by the trees' when and if the question of [Mr Ballamoody's] suitability for restoration comes to be reconsidered again."
We endorse those remarks in their entirety and wish to be associated with them.