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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Bergolis v Norinchukin International Plc [2003] UKEAT 0448_02_1305 (13 May 2003) URL: https://www.bailii.org/uk/cases/UKEAT/2003/0448_02_1305.html Cite as: [2003] UKEAT 448_2_1305, [2003] UKEAT 0448_02_1305 |
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At the Tribunal | |
On 7 April 2003 | |
Before
HIS HONOUR JUDGE PETER CLARK
MRS R CHAPMAN
MR G H WRIGHT MBE
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | MS T GILL Representative Commission for Racial Equality (Litigation Dept) St Dunstan's House 201-211 Borough High Street London SE1 1GZ |
For the Respondent | MR JAMES TAYLOR (Of Counsel) Instructed by: Messrs Hammond Suddards Edge Solicitors 7 Devonshire Square Cutlers Gardens London EC2M 4YH |
JUDGE PETER CLARK
Background
The Employment Tribunal decision
S3(4) provides:
"A comparison of the case of a person of a particular racial group with that of a person not of that group under s1(1) must be such that the relevant circumstances in the one case are the same, or not materially different in the other."
"35 In the present case, the ex-patriate employees of Norinchukin Bank were employed under different contracts. They had different benefits, different salaries, some benefits being paid from Japan. Their salary was reimbursed by Norinchukin Bank, Japan, although paid by the Respondent and they were secondees from the Japanese bank. A non-Japanese could be an ex-patriate and some local employees were Japanese although not ex-patriate. The ex-patriate employees could not be dismissed but could only be repatriated."
The Appeals
Direct Discrimination
"Thus, where the act complained of consists of dismissal from employment, the statutory definition calls for the way the employer treated the claimant (dismissal) and the way he treated or would have treated a person of a different racial group. It stands to reason that in making this comparison, with a view to deciding whether a person who was dismissed received less favourable treatment than a person of a different racial group, it is necessary to compare like with like. This self-evident proposition is spelled out in s3(4) the RRA 1976: see Dillon LJ in Bain v Bowles (1991) IRLR 356, 357. As originally enacted … s3(4) provides: (set out earlier).
This provision applies regardless of whether the comparator is an actual person or a hypothetical person. It is equally applicable to both types of comparator."
"12 Direct Discrimination. The Applicant was less favourably treated than each of the expatriate employees in the Respondent's trading department, none of whom were dismissed (or had the arrangement under which they worked for the Respondent in the United Kingdom terminated). The Applicant is a British man. Those employees are Japanese men. The Respondent has failed to provide a satisfactory reason for this difference in treatment. In the circumstances the Applicant will ask the tribunal to infer that he would not have been dismissed had he been a Japanese man."
In a footnote to the words in brackets the Applicant said this:
"The Respondent has indicated in its response to the Applicant's RRA questionnaire that the expatriate employees are employed by the Respondent's Japanese parent company and therefore that the Applicant is prevented from drawing a comparison with them. Pending disclosure of documentation relating to the employment arrangements of the expatriate employees the Applicant is unaware of the precise arrangements under which the expatriate employees are engaged, save that it is understood they were paid by the Respondent. Irrespective of the precise arrangements, the expatriate employees are clearly employed to work for the Respondent in its trading department and are, therefore, in circumstances which are not materially different to that of the Applicant."
"The Applicant's chosen comparators are all expatriate staff employed by the Respondent's parent Company, Norinchukin Bank, in Japan. Consequently …. The relevant circumstances of those individuals are neither the same nor materially so far the purposes of s3(4) Race Relations Act;"
"Whether the Respondent treated the Applicants less favourably on account of their race contrary to s1(1)(a) and s4(2)(c) of the RRA 1976, the detriments being those set out in paragraph 13 of the Originating Applications."
(i) Did the Employment Tribunal consider the comparator question?
At paragraph 35 the Employment Tribunal made certain findings of fact as to the differences between the Applicants, employed by the Respondent and the Japanese secondees. We have earlier set out those findings. At paragraph 36 they considered the first matter raised in paragraph 13(i) of the grounds of complaint, that the secondees worked under different contracts with the Bank, receiving higher salaries than the Applicants; that the Bank was a different corporate entity from the Respondent. They were satisfied that there was no comparison of like with like under section s3(4).
"The ex-patriates [secondees] were not employees of the Respondent and therefore are not true comparators."
(ii) Was the Employment Tribunal entitled to find that the secondees were not actual comparators?
In our judgment they were. We return to Ms Gill's point that the discriminatory act here complained of was dismissal of the Applicants by the Respondents on grounds of redundancy. In order to make a true like for like comparison the comparators must, at the very least, also be employees of the Respondent who were not dismissed. The secondees were not employees of the Respondent. Accordingly they could not be dismissed. Like the Employment Tribunal we do not accept that secondees who might be repatriated to Japan were comparable with employees of the Respondent who might be dismissed by reason of redundancy for the purposes of the specific complaint in these cases.
(iii) Ought the Employment Tribunal to have considered the question of hypothetical comparators?
We accept, of course, that where a Tribunal is required to consider hypothetical comparators the treatment of actual people, although not true comparators, may inform their decision as to how a hypothetical comparator would be treated - Chief Constable of West Yorkshire v Vento [2001] IRLR 124 (EAT. Lindsay P). In Wakeman v Quick Corporation [1999] IRLR 424, a case concerning the difference in pay between locally recruited English staff and Japanese secondees, Chadwick LJ (paragraph 62) identified the following factual questions for the Employment Tribunal: First were there any Japanese employees in relation to whom the circumstances relevant to remuneration were otherwise the same as, or not materially different from the circumstances of the complainants. That question was answered in the negative. Accordingly the second question, were the complainants less favourably treated than those actual comparators, there being none, did not arise. Thirdly, how would the Respondent have treated like for like hypothetical comparators, that is, Japanese employees in like circumstances to the Complainants. Fourth, was the Complainant's treatment less favourable than that afforded to those hypothetical comparators? The Employment Tribunal in that case considered those latter 2 questions and found no useful inference as to how locally recruited Japanese and similar management positions would have been treated in comparison to the Complainants.
"I am far from saying that in each and every case the tribunal has to be robustly interventionist and do the task which the applicant is not doing for himself or herself. Every case is different. But in this case, in my judgment, the chairman should have given in to her first instinct, which was; "that whether or not [Mr Balamoody] had been treated differently on the grounds of race was largely a question to be decided on the evidence and that a striking out order would be unusual …"
"(1) The complaint. The Industrial [Employment] Tribunal only has jurisdiction to consider and rule upon the act or acts of which complaint is made to it. If the Applicant fails to prove that the act of which complaint is made occurred, that is the end of the case. The Industrial Tribunal has no jurisdiction to consider and rule upon other acts of racial discrimination not included in the complaints in the Originating Application: See Chapman v Simon [1994] IRLR 124, 128, Paragraph 33(2) (per Balcombe LJ) and 129, paragraph 42 (Per Peter Gibson LJ)."
Indirect Discrimination