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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Transport for London & Anor v Aderemi (Race Discrimination : Direct) [2011] UKEAT 0006_11_0411 (4 November 2011) URL: https://www.bailii.org/uk/cases/UKEAT/2011/0006_11_0411.html Cite as: [2011] UKEAT 6_11_411, [2011] UKEAT 0006_11_0411 |
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At the Tribunal | |
On 16 May 2011 | |
Before
HIS HONOUR JUDGE HAND QC
SIR ALISTAIR GRAHAM KBE
MR A HARRIS
(2) MR A MCGILL |
APPELLANT |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellants | MR ANDREW SHORT (One of Her Majesty's Counsel) & MR DAVID E GRANT (of Counsel) Instructed by: Transport for London Legal Services Windsor House 42-50 Victoria Street London SW1H 0TL |
For the Respondent | MR KEVIN HARRIS (of Counsel) Instructed by: Messrs HCL Hanne & Co Solicitors St John's Chambers 1C St John's Hill London SW11 1TN |
SUMMARY
RACE DISCRIMINATION
Direct and Victimisation
Burden of Proof
The Employment Tribunal conflated the two concepts of firstly less favourable treatment and secondly whether there was a prima facie case that it was on the grounds of race. The phrase "from which it could conclude" at paragraph 45 of the judgment is redolent of precisely the same error identified by the Court of Appeal at paragraph 31 of the judgment in Igen v Wong [2005] ICR 93 and there had to be a finding that Mr McGill had treated the Respondent less favourably before the second concept arose.
The conclusion that there was less favourable treatment of the Respondent by TFL rested to a considerable extent, on the finding at paragraph 57 of "institutional, unconscious, attitudinal racism, at least in relation to persons of black African ethnicity" in TFL and was a finding based on a collection of single incidents of limited scope not justifying an inductive conclusion so broad in scope; the conclusion was unsound; Commissioners of Inland Revenue v Morgan [2002] IRLR 776 followed.
Victimisation also rested in part on the above finding and was equally unsound.
Remitted to a differently constituted Tribunal for a complete re-hearing.
HIS HONOUR JUDGE HAND QC
Introduction
The issues
i. Whether the Respondent had shown facts from which the Tribunal could conclude, in the absence of an explanation from the Appellants "that he had been subjected to direct race discrimination in respect of his career advancement and promotion?"
ii. If that was shown then the next question to be answered was had the Appellants "shown by cogent evidence on a balance of probabilities that their treatment of the [Respondent] was in no way whatsoever on account of his race?"
iii. Did the [Respondent] complain of race discrimination and, if so, when?
iv. If so, was he treated less favourably because he had made such a complaint by not having been "appropriately redeployed?
Paragraphs i and ii are related to direct race discrimination; iii and iv are related to victimisation.
The factual background
"Yes I know it wasn't about money. Seemed unfair to me that's all."
"… at a disadvantage in the up-coming reorganisation in December because he lacked contact centre management skills/experience."
" … his career progression, duties and achievements, including tabulated comparisons with his management colleagues in comparison to whom his career "remains static and this not for lack of ambition, taking up additional tasks or competence" but because he has not been given the opportunity to move forward seeking to understand "why is [the Second Respondent] omitting to do key things that could promote my career" and adding: "I am asking myself what makes me different to the other within his team whom he has promoted and developed. I hope you will kindly explore that question as well.""
" … the entire history of events to date including the comparators, some of whom had failed to achieve the Band 3 benchmark but were seconded nevertheless with full documentation, the failed job re-evaluation and his desired remedies - Band 4, back-pay lost, a move to another area in the organisation and full investigation of his grievances"
and he also said this (see also see paragraph 26 at page 10):
"… I feel disregarded and treated with levity by [the Second Respondent] who constantly ignores my development needs" … when compared with Paul Cowan, Volkan Altinok, Darren Kelly and Tim Marsh. "I leave you to draw your own conclusions as to what makes these people different to me. Being treated less favourably than them must be because of something peculiar to me and [the Second Respondent] needs to prove otherwise … I bear these gentlemen no grudges … I merely use them as comparators."
"… "I am not suffering from stress because of the wider remit I have been covering for more than a year. The stress is due to the fact that my line manager is discriminating against me and treating me less favourably than others under his management; coupled with the fact that Ian Henderson refuses to act on the matter to ensure that my assignment to cover both customer relations and Oyster is documented with attendant remuneration and JD because his hands are tied." "
" … it was hard to imagine why anyone would wish to subsequently fabricate such an inadequate and scrappy "supportive" document. "
" The Tribunal formed the overall view that the Respondent's conduct of its case in respect of the disclosure of documents and information was shambolic and unhelpful to its own case as well as inconvenient for the Tribunal and stressful for the Claimant, particularly as he was unrepresented. "
The Employment Tribunal's judgment
" … a white man with the same skills, qualities, education, work record, high quality appraisals, ambition and style of dealing with colleagues, which the Tribunal found to be polite, respectful, courteous and at times understated and yet firm, ambitious, appropriately assertive and with a fluent and articulate written style."
"… from which it could conclude, in the absence of an explanation from the Respondents, that the Claimant had been treated less favourably than real and/or hypothetical comparators in respect of his promotion /career development:"
Firstly, the use by Mr McGill of the expression "he had many mouths to feed" had racist overtones. Mr McLeod had accepted as much under cross examination. Secondly, and more generally, the Employment Tribunal regarded the fact that the Respondent was of black African origin and his comparators were not as significant, particularly when he had been admitted to Band 3 as an "outstanding performer" whereas two of the others had acted up and then been confirmed as Band 3 and two had been acting up and, although they had not been confirmed as substantive Band 3, had been paid more.
"The Tribunal's unanimous conclusion on all the evidence before it was that the Second Respondent had failed to satisfy it on a balance of probabilities that the Claimant's race had played no part whatever in his treatment of him. The Tribunal concluded unanimously that although the Second Respondent objectively and consciously perceived and appreciated the Claimant's high quality performance in his role, there was an operative sub-conscious racism in his attitude towards him which manifest (sic) in a reluctance in fulfilling his own promises of advancement, which the Claimant's performance in post clearly fully merited, and a foot-dragging delay in actively promoting his advancement towards a Band 4 position when compared to his proactive advancement of other managers whose abilities were often less than the Claimant's. The Tribunal was not satisfied the Second Respondent would have treated the hypothetical comparator with the same reluctance and delay."
i. Mr Henderson's lack of reaction to the "many mouths to feed" remark;
ii. Mr McLeod's similar lack of reaction to it, coupled with the fact that he had spotted that it had racist connotations but had dismissed it as being only one instance and not at "the high end"
iii. none of the witnesses called by TFL had received any racial awareness or equal opportunities training;
iv. the failure of TFL's Human Resources Department to grasp that the Respondent was making allegations of race discrimination despite what the Employment Tribunal regarded as a clear statement to that effect by the Respondent in his emails; on the contrary it had been said that he was not complaining of "any behaviours";
v. the fact that the Respondent's job evaluation had been stopped but others had proceeded.
" … at least in this segment of the First Respondent's organisation, what can only be described as institutional, unconscious attitudinal racism, at least in relation to persons of black African ethnicity; a corporate blindness to indications of racist thinking and to the possible implications of a complaint of race discrimination being raised in the context of a wider complaint of unfair or less favourable treatment."
i. that had never been said when the Respondent's case was submitted for evaluation;
ii. other cases had proceeded to evaluation;
iii. a "job freeze" was never advanced at the time as a reason for delaying or stopping the Respondent's job re-evaluation; the only information supplied at the time was that matters were held up pending clarification and there was never any clarification;
iv. Mr McLeod's explanation that the evaluation had been held up by a reorganisation, as was the general policy in such circumstances, was unsupported by written evidence of any such policy.
"60. In the absence of a Band 4 vacancy, job re-evaluation was the only route forward for the Claimant. The Respondents' explanations for the halting of this process were not consistent with the evidence before the Tribunal and in the absence of any more cogent explanation, the Tribunal was not satisfied that the Claimant's race had played no part in this process, particularly in the light of the Tribunal's finding of the bad faith in which the Claimant's management had put forward his job re-evaluation request in the first place, their failure to provide the clarification sought by the job evaluation team and Mr McLeod's own grievance finding that the process was "not entirely clear". This must be taken against the background of the far more rapid pace of advancement and promotion (by whatever means) of more junior and less able colleagues than the Claimant, where he alone was of black African ethnicity and the Tribunal's finding of institutional racism as defined in paragraph 57 of these Reasons.
61. The Tribunal did not accept, on all the evidence that the hypothetical comparator would have been treated as the Claimant was in respect of his career progression and promotion.
61. The Claimant's complaints of direct race discrimination against both First and Second Respondents are accordingly well founded and succeed. On the evidence before it at the Full Merits Hearing, the Tribunal formed the view that the greater responsibility as between the Respondents lies with the First Respondent, whose corporate culture appears to be permissive of, if not engendering, racism."
"64. The Tribunal concluded on all the evidence before it that both the Respondent's policy and normal practice was for staff raising grievances against other staff to be found a temporary alternative placement, wherever possible. This is in any event in accordance with the accepted norms of the conduct of fair and unimpeded grievance process in the workplace and an employer's duty of care to its employees – whether complainants or those against whom complaints are made. The Claimant's request was first made by the Claimant himself … and this was forwarded to Ms Fearon-McCaulsky … [who] … told Ms Burkin it was not necessary … . The Tribunal concluded that given this chronology and the evidence of Mr Henderson, no genuine or serious consideration whatever was given to the relocation request in contravention of the First Respondent's grievance policy, and that no attempt was made to comply with it.
65. The Tribunal was at a loss to understand why the Claimant's request for temporary relocation, backed up by his Counsellor, and, incidentally, on 6 May 2010 by the OH Doctor, has been persistently ignored by the First Respondent, in contravention of its own policy and normal custom and practice up until the outcome of the grievance … No coherent explanation of this state of affairs was offered by the Respondent, whether in the particular person of Mr Henderson whose decision it apparently was, or otherwise. There was no evidence whatever before the Tribunal that any other member of staff who made a grievance of whatever kind against his/her line management had been treated in the same way as, or differently from, the Claimant in respect of a request for temporary relocation pending the resolution of a considerable grievance."
"The Tribunal unanimously drew the inference from the above cumulation of facts that the Respondent's wilful disregard for the Claimant's request for relocation pending the outcome of his grievance against his line management for difference in treatment predicated upon his race, was, on a balance of probabilities, because he had made such a complaint. This is set against a background of the Tribunal's finding of institutional racism as set out in paragraph 57 of these Reasons"
The submissions
" … an explanation which would satisfy it, by cogent evidence, on a balance of probabilities that his treatment of the Claimant was in no sense whatsoever on the grounds of his race."
This was an error. The Employment Tribunal had, first of all, to establish whether there was less favourable treatment. When, at paragraph 45 of the judgment, the Employment Tribunal said, that it had:
"… found the following facts from which it could conclude … that the Claimant had been treated less favourably …"
this demonstrated a conflation between "less favourable treatment" and "on the grounds of race". The first of the facts, which followed in the same paragraph of the judgment, related not to less favourable treatment but to evidence of "racist overtones". The second dealt both with the Respondent's ethnic background and with his comparative position so it was a mixture of the two concepts.
"We would readily accept that the treatment of an actual male comparator whose position was wholly akin to Mrs Vento's in relation to the Mr Value incident was not in evidence. It followed that the tribunal had to construct a picture of how a hypothetical male comparator would have been treated in comparable circumstances. One permissible way of judging a question such as that is to see how unidentical but not wholly dissimilar cases had been treated in relation to other individual cases."
So the Employment Tribunal had been entitled to compare the Respondent's treatment with Messrs Cowan, Altinok, Kelly and Marsh to construct how the hypothetical comparator might have been treated.
Discussion and conclusions
"… at least in this segment of the First Respondent's organisation, what can only be described as institutional, unconscious attitudinal racism, at least in relation to persons of black African ethnicity; a corporate blindness to indications of racist thinking and to the possible implications of a complaint of race discrimination being raised in the context of a wider complaint of unfair or less favourable treatment."
"60. In the absence of a Band 4 vacancy, job re-evaluation was the only route forward for the Claimant. The Respondents' explanations for the halting of this process were not consistent with the evidence before the Tribunal and in the absence of any more cogent explanation, the Tribunal was not satisfied that the Claimant's race had played no part in this process, particularly in the light of the Tribunal's finding of the bad faith in which the Claimant's management had put forward his job re-evaluation request in the first place, their failure to provide the clarification sought by the job evaluation team and Mr McCleod's own grievance finding that the process was "not entirely clear". This must be taken against the background of the far more rapid pace of advancement and promotion (by whatever means) of more junior and less able colleagues than the Claimant, where he alone was of black African ethnicity and the Tribunal's finding of institutional racism as defined in paragraph 57 of these Reasons."
and then refer to it again in the last part of the second sentence of the second iteration of paragraph 61, although in the context of apportionment of fault as between Mr McGill and TFL. There it has become "corporate culture ... permissive of, if not engendering racism."
Disposal
Note 1 We were told that it has been evaluated since as being Band 3 but we did not find that information to be of any assistance to us in resolving the issues in this case. [Back]