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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Famy v. Hilton UK Hotels Ltd [2006] UKEAT 0639_05_1010 (10 October 2006) URL: https://www.bailii.org/uk/cases/UKEAT/2006/0639_05_1010.html Cite as: [2006] UKEAT 639_5_1010, [2006] UKEAT 0639_05_1010 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE BURKE QC
MR J MALLENDER
MR D NORMAN
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | Ms Jane Russell (of Counsel) Instructed by: Messrs ELS Solicitors Orion House 104-106 Cranbrook Road ILFORD ESSEX IG1 4LZ |
For the Respondent | Mr Richard O'Dair (of Counsel) Instructed by: Messrs SAS Lawyers 30 Greek Street Stockport Cheshire SK3 8AD |
SUMMARY
The Appellant's race discrimination claims, based primarily on the Respondents' failure to promote him over many years, failed, as did his constructive dismissal claim. On appeal against the Tribunal's decision on the discrimination claims, held that the Tribunal were entitled find as fact that when the managers post the Appellant said he should have been promoted into was vacant, the Respondents advertised the vacancy internally and externally, that the Respondent had a policy of appointing on formal application only, that the Appellant did not formally apply and that the appointees did. The appointees were, therefore, not like for like comparators; and the Appellant would have fared no better in the case of hypothetical comparators. The Tribunal's decision that the Appellant had not shown treatment from which an inference of discrimination could be drawn was upheld. Matthews v Kent & Medway Fire Authority and Rihal v London Borough of Ealing distinguished.
HIS HONOUR JUDGE BURKE QC
The History
The Constructive Dismissal Decision
(1) When the Club Bar Manager, Mr Brown, left in April 2000 it was decided not to replace him. Although Mr Famy applied for promotion to Bar Manager on this occasion, there was no vacancy (paragraph 34).
(2) The job to which Mr Famy was to be re-allocated when the Club Bar closed and the Homage opened was that of Bar Supervisor; that had been his previous role; he was not demoted (paragraph 35).
(3) Hilton dealt with Mr Famy's grievance properly and in a constructive way (paragraph 36).
(4) Accordingly there was no breach of the implied term of trust and confidence. As we have said, there is no appeal against these conclusions.
The Discrimination Issues
(1) by failing to promote Mr Famy on seven occasions between 1993 and 2000;
(2) by not promoting Mr Famy but appointing someone else on 6 occasions between 1993 and 2004
(3) the first 5 of each sub-allegation under these 2 heads are related to the same events e.g. the first sub-allegation under (1) was a failure to promote Mr Famy after Michelle Soma left in 1993; the first allegation under (2) was not of promoting Mr Famy when "Peter" was appointed Bar Manager in 1993, he having been Michelle Soma's successor;
(4) by demoting Mr Famy and changing his place of work in September 2004;
(5) by not inviting Mr Famy to a 20 year continuous service ceremony in June 2004;
(6) by failing to address and redress the grievances presented in October 2004.
The Tribunal's Conclusions on Race Discrimination
"We have also considered the complaints of race discrimination cumulatively as we are required to do under the guidelines in Anya v University of Oxford. There is nothing from which we can infer that the treatment received by Mr Famy was because of his race. Mr Famy did not apply for any of the posts that he sought and it was his assumption that he should be promoted simply because of experience without applying that led to his unhappiness with the Respondent. He has failed to demonstrate any evidence from which the Tribunal can infer race discrimination."
The Notice of Appeal
(1) Jurisdiction. This ground goes to the Tribunals decision that there was no continuing act within section 68(7)(b) of the 1976 Act.
(2) Hypothetical comparator. It is asserted that it was incumbent upon the Tribunal to raise the issue of a hypothetical comparator in circumstances where the Claimant had chosen an unsuitable actual comparator; by implication it is contended that the Tribunal did not consider the case of the hypothetical comparator where it was appropriate to do so.
(3) Failure to promote. It is asserted that the Tribunal erred in law in concluding or perversely concluded that Mr Famy was not treated less favourably in relation to promotion on the various occasions between 1993 and 2004 which were examined in the evidence.
(4) Demotion to Supervisor. This head was abandoned by Ms Russell during the course of the hearing.
(5) Burden of proof. It is asserted that the Tribunal failed to apply the burden of proof correctly and ought to have considered whether a prima facie case of discrimination was made out without reference to any explanations given by Hilton. Reliance is also placed on a Race Relations Act questionnaire.
Preliminary Point
"68 Period within which proceedings to be brought
(1) An employment tribunal shall not consider a complaint under section 54 unless it is presented to the tribunal before the end of--
(a) the period of three months beginning when the act complained of was done;"
Section 68(7) provides:-
"(7) For the purposes of this section—
(b) any act extending over a period shall be treated as done at the end of that period."
Let us assume for present purposes that all of the other allegations, from 1993 to the appointment of Mr O'Reilly in September 2004, contrary to the Tribunal's conclusions, formed part of an act extending over a period but that there was no discrimination after 8 October 2004; that continuing act would be treated as done at the end of that period i.e. in September 2004 and would have been completed more than 3 months before the presentation of Mr Famy's claim. Since it was not argued before the Tribunal and is not sought to be argued before us that it would have been just and equitable to extend the ordinary 3 month time limit pursuant to section 68(6) of the Act, all of the allegations of race discrimination prior to October 2004 i.e. other than that in relation to the grievance would arguably fail on the basis of a lack of jurisdiction.
Failure to Promote. General Points
"A comparison of the case of a person or a particular racial group with that of a person not of that group under Section 1(1) or 1(a) must be such that the relevant circumstances in the one case are the same, or not materially different in the other."
"We have considered the individual instances of alleged race discrimination."
It is entirely clear that the Tribunal concluded as fact that (save in 2000) Mr Famy had not applied for the position to which he claimed that he should have been promoted and that the person appointed had formally applied for the post in each case and that therefore, in the Tribunal's view, the proposed actual comparators were not true comparators because their relevant circumstances were not the same as or were materially different from those of Mr Famy. That this was the Tribunals approach is evidenced by their specific reference, in the alternative, to hypothetical comparators in paragraph 57.
Failure to Promote. Specific Occasions
1992
"Mr Famy says that he asked Mr Blight for promotion at that time but there is no evidence of a formal application"
"The Tribunal considered each part of the potential actual comparators in turn. In relation to Peter, there is no evidence that Mr Famy applied for the job whereas Peter did. The job was advertised both internally and externally and Mr Famy did not apply. Accordingly, the relevant circumstances are not the same or materially the same and Peter cannot be an appropriate comparator."
1993
"When Sylvie Gourdon was appointed, she applied for the post and Mr Famy did not. All that he did when Peter left was to ask the departing barman, Peter, if he could be promoted. This does not amount to an application and therefore cannot be said to be materially the same as Ms Gourdon who did apply."
"It was important to bear in mind in deciding whether the Claimant had proved such facts that it was unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination would not be an intention but merely based on the assumption that 'he or she would not have fitted in'."
1994
1996
"The next comparator is Mr David Smith. There is no evidence before the Tribunal to confirm the allegation in the Claim Form that Mr Famy asked Ms Hindermann if he could be appointed. In any event, he did not apply and David Smith did and therefore the two are materially different."
1997
"On 18 August 1997, Gerry Brown was appointed as Bar Manager. This position was advertised in the Evening Standard and the "Caterer and Hotel" paper. We have a copy of the letter of application in response to this last advertisement at page 121. The evidence before us was that Mr Brown was considered by the hotel to be an exceptionally good Bar Manager. He left on 16 April 2000."
And, at paragraph 55,:-
"In relation to Gerry Brown, the post was advertised internally and externally and all who did not apply were not considered. Mr Brown did apply and therefore the circumstances are not materially the same."
2000
"On 20 June 2000, Mr Famy made an application (page 134) addressed 'To whom it may concern' in the following terms:
'I would like to apply for the position as Bar Manager in the Club Bar which has become available. As I have been in the Club Bar working for the past 17 years I feel I am the best person suited to fill this position…'
The letter is annotated 'Paul Smith to talk'. Mr Smith gave evidence before us and explained that he did speak to Mr Famy although this was not an interview in the sense that he was interviewing Mr Famy for the position. He met with Mr Famy to explain why he was not going to replace Mr Brown and to say why he did not think that Mr Famy would be suitable for the job. In essence, the position that Mr Brown had occupied was not available. It was never advertised because there was not authority to fill it. Mr Smith explained to Mr Famy that he was not replacing the bar manager and the position was not there. Mr Brown had created a structure where the bar ran very effectively allowing Mr Brown to be in the front of the house meeting and greeting customers. This was one of the reasons that Mr Smith had for not re-appointing a Bar Manager."
And at paragraph 56:-
"Mr Famy was not appointed when Mr Brown left because of the explanation which the Tribunal accepts put forward by Mr Smith that no Bar Manager was required. Therefore Mr Famy had applied for a post that the Respondent did not need to be filled. However, Mr Smith explained the situation to Mr Famy. There is no evidence to suggest that anybody else who had made an application at the same time as Mr Famy would have been treated any differently."
Bar Manager from 2000 to 2004; therefore the Tribunal should not have found that there was no vacancy and should have found that Mr Famy, who had on this occasion specifically applied for the post, had been the victim of discrimination when his application was rejected.
2004
"The final comparator is Mr Richard O'Reilly who was appointed to thepost of Bar Manager of the Homage bars. He responded to an advertisement. The advertisement was made both internally and externally. Mr Famy did not respond to the internal advertisement buy raised the matter in his grievance… Mr Famy never applied for the post to which Mr O'Reilly was appointed."
Acting Up
"8 In paragraph 19 of their decision the Tribunal was entirely right to say that it is not enough for an applicant simply to show unreasonable behaviour and that a difference of sex was a hypothetical comparator. In other words, in effect, simply to show unreasonable behaviour is unreasonable to satisfy the requirements of the section in case law. As the Tribunal said, the applicant has to go further. In the fourth sentence of paragraph 19 they said "he needs to show at least a prima facie case that his treatment is on the grounds of his sex or, as the EAT in Bahl put it, that the employer could have been influenced by unlawful discriminatory considerations". Second of these two alternative formulations, is we believe, good law."
Matthews
"I am not confident however that the Tribunal gave sufficient wait to the extent to which the work on which both groups of fire fighters were engaged was "the same" work. The pains taking way in which they address themselves to the various differences was a necessary and admirable reaction to the way the evidence was presented and the issues argued before them. But it led them to concentrate on the differences and not to assess the weight that ought to be given to the similarities. Their conclusion that the job of the whole time fire fighter was a fuller wider job than that of the retained fire fighter was not, as they appear to have thought the end of the exercise. They still had to address the question posed by the statute which was whether, not-withstanding the fact that the job of the whole time fire fighter was a fuller and wider job, the work on which both groups were engaged could nethertheless be described as broadly similar."
The Grievance Process
"The third aspect of the claim of breach of contract is a failure to address and provide the redress for grievances as set out in the Claimant's letter of 12 October 2004. In this connection, the Tribunal took into account that once Mr Famy had formulated his grievances in writing and made them known to the Respondent by the letter of 12 October 2004 (page 158-160), the Respondent dealt with them properly. Ms Spittlehouse responded on 13 October and a grievance meeting took place before Mr Bauer and Ms Spittlehouse on 20 October. The Tribunal found Mr Bauer to be a credible witness who was genuinely concerned about the grievances the Respondent dealt with all those that were within their domain in a constructive way. Mr Bauer wrote to Mr Famy on 25 October (page 168-170) dealing with the various matters including the award of his star points and long service award and genuinely trying to resolve the matters between them."
They referred to the grievance process again in paragraph 59 in the context of the discrimination claim. They said:-
"The next claim is a failure to address and provide redress to the grievances as set out in Mr Famy's representatives' letter of 12 October 2004. On the evidence, the Respondent addressed all the grievances with celerity. Mr Famy had a grievance meeting with Mr Bauer and Ms Spittlehouse during which Mr Bauer tried to be constructive in dealing with the grievances. The matter was further investigated and Mr Bauer dealt point by point with Mr Famy's grievances. The appeal hearing also dealt with the grievances and Ms Scott at the appeal sought to address all of Mr Famy's grievances and told him that if he wanted to work in the cocktail bar that is where he would work. She adjourned the appeal hearing and re-fixed it although the re-fixed hearing did not take place because Mr Famy resigned. Mr Famy has failed to demonstrate that the Respondent failed to address and provide redress of his grievance and even if they had, he has not demonstrated that there is any evidence that a hypothetical white comparator in those circumstances would have been treated any differently."
Rihal
"There is nothing from which we can infer that the treatment received by Mr Famy was because of his race. Mr Famy did not apply for any of the post that he sought and it was his assumption that he should be promoted simply because of experience without applying that lead to his happiness with the Respondent. He has failed to demonstrate any evidence from which the Tribunal can infer race discrimination."
The third of the sentences from paragraph 60 from which we have quoted strikes us as telling in the light of the Tribunal's findings of fact.
Other Matters Relating to Failure to Promote
The Equal Opportunities Policy
"All colleagues with relevant experience and ability should be considered for promotion and a transfer"
Job Specifications etc
The Evidence of Mr Umali
The Race Relations Act Questionnaire
Further Matters
Hypothetical Comparator
The Burden of Proof
"He has failed to demonstrate any evidence from which the Tribunal can infer race discrimination."
"This does not mean, in our view, that in a case involving alleged race discrimination, it will be sufficient at this first stage for an applicant who is black simply to show, for example, that a white comparator was promoted to a post for which he had applied. In view of the 'like for like' requirement in s.3(4) and the need for the relevant circumstances in the applicant's case to be the same or not materially different in the case of the comparator, the applicant in such a case would have to show not only that he met the stated qualifications for promotion to the post, but that he was at least as well qualified as the successful candidate. The relevant information as to the successful candidate's qualifications could be obtained in the usual way, through correspondence or using the questionnaire procedure."
Jurisdiction
Conclusion