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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Martin v Board of Governors of St Francis Xavier 6th Form College (RACE DISCRIMINATION) [2024] EAT 22 (27 February 2024) URL: https://www.bailii.org/uk/cases/UKEAT/2024/22.html Cite as: [2024] EAT 22, [2024] IRLR 472 |
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Fetter Lane, London, EC4A 1NL |
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B e f o r e :
MR NICK AZIZ
DR GILLIAN SMITH MBE
____________________
MR D MARTIN |
Appellant |
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- and - |
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THE BOARD OF GOVERNORS OF ST FRANCIS XAVIER 6TH FORM COLLEGE |
Respondent |
____________________
Mr Jonathan Heard (instructed by Lyons Davidson) for the Respondent
Hearing date: 12 December 2023
____________________
Crown Copyright ©
SUMMARY
RACE DISCRIMINATION
This judgment considers the law relating to comparators in discrimination cases, including actual statutory comparators, evidential comparators, and hypothetical comparators. The judgment also considers the interrelationship between the use of comparators and the shifting burden of proof in section 136 of the Equality Act 2010.
The Employment Appeal Tribunal held that the majority of the Employment Tribunal in this case did not misdirect itself in law, did not reach a perverse decision, and gave adequate reasons for its conclusions. Accordingly, the appeal is dismissed.
THE HONOURABLE MR JUSTICE CAVANAGH:
Introduction
The facts as found by the Majority, and their conclusions
i) the measures which he took to ensure that students sitting public examination were not disadvantaged;
ii) the measures which he took to ensure his prompt arrival at the Respondent to meet the contractual requirement of directed hours; and
iii) whether or not this instance of late arrival was an isolated event or part of a pattern of poor punctuality.
The applicable law
Direct race discrimination
"(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others."
Comparators
"(1) On a comparison of cases for the purposes of section 13…. there must be no material difference between the circumstances relating to each case."
"107. There has been, in my opinion, some confusion about the part to be played by comparators in the reaching of a conclusion as to whether a case of article 3(1) discrimination - or for that matter a case of discrimination under section 1(1) of the Sex Discrimination Act 1975 , or under section 1(1) of the Race Relations Act 1976 , or under the comparable provision in any other anti-discrimination legislation-has been made out. Comparators come into play in two distinct and separate respects.
108. First, the statutory definition of what constitutes discrimination involves a comparison: "treats that other less favourably than he treats or would treat other persons". The comparison is between the treatment of the victim on the one hand and of a comparator on the other hand. The comparator may be actual ("treats") or may be hypothetical ("or would treat") but "must be such that the relevant circumstances in the one case are the same, or not materially different, in the other" (see article 7). If there is any material difference between the circumstances of the victim and the circumstances of the comparator, the statutory definition is not being applied. It is possible that, in a particular case, an actual comparator capable of constituting the statutory comparator can be found. But in most cases a suitable actual comparator will not be available and a hypothetical comparator will have to constitute the statutory comparator. In Khan's case [2001] ICR 1065 one of the questions was as to the circumstances that should be attributed to the statutory hypothetical comparator. It is important, in my opinion, to recognise that article 7 is describing the attributes that the article 3(1) comparator must possess.
109. But, secondly, comparators have a quite separate evidential role to play. Article 7 has nothing to do with this role. It is neither prescribing nor limiting the evidential comparators that may be adduced by either party. The victim who complains of discrimination must satisfy the fact-finding tribunal that, on a balance of probabilities, he or she has suffered discrimination falling within the statutory definition. This may be done by placing before the tribunal evidential material from which an inference can be drawn that the victim was treated less favourably than he or she would have been treated if he or she had not been a member of the protected class. Comparators, which for this purpose are bound to be actual comparators, may of course constitute such evidential material. But they are no more than tools which may or may not justify an inference of discrimination on the relevant prohibited ground, e g sex. The usefulness of the tool will, in any particular case, depend upon the extent to which the circumstances relating to the comparator are the same as the circumstances relating to the victim. The more significant the difference or differences the less cogent will be the case for drawing the requisite inference. But the fact that a particular chosen comparator cannot, because of material differences, qualify as the statutory comparator, e g, under article 7 , by no means disqualifies it from an evidential role. It may, in conjunction with other material, justify the tribunal in drawing the inference that the victim was treated less favourably than she would have been treated if she had been the article 7 comparator.
110. In summary, the comparator required for the purpose of the statutory definition of discrimination must be a comparator in the same position in all material respects as the victim save only that he, or she, is not a member of the protected class. But the comparators that can be of evidential value, sometimes determinative of the case, are not so circumscribed. Their evidential value will, however, be variable and will inevitably be weakened by material differences between the circumstances relating to them and the circumstances of the victim."
Emphasis added
"37. It is probably uncommon to find a real person who qualifies under section 3(4) as a statutory comparator. Lord Rodger's example at para 139 of Shamoon of the two employees with similar disciplinary records who are found drinking together in working time has a factual simplicity which may be rare in ordinary life. At any rate, the question of whether the differences between the circumstances of the complainant and those of the putative statutory comparator are "materially different" is often likely to be disputed. In most cases, however, it will be unnecessary for the tribunal to resolve this dispute because it should be able, by treating the putative comparator as an evidential comparator, and having due regard to the alleged differences in circumstances and other evidence, to form a view on how the employer would have treated a hypothetical person who was a true statutory comparator. If the tribunal is able to conclude that the respondent would have treated such a person more favourably on racial grounds, it would be well advised to avoid deciding whether any actual person was a statutory comparator."
"…. 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."
The burden of proof
"(1) This section applies to any proceedings relating to a contravention of this Act.
(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.
(3) But subsection (2) does not apply if A shows that A did not contravene the provision."
"61. In many direct discrimination claims the claimant does not rely on a comparison between his treatment and that of another person. The claimant relies on other types of evidence from which it is contended that an inference of discrimination should be drawn, the comparison being with how the claimant would have been treated had he had some other protected characteristic.
62. In other cases, the claimant compares his treatment with that of one or more other people. There are two ways in which such a comparison may be relevant. If there are no material differences between the circumstances of the claimant and the person with whom the comparison is made (the person is usually referred to as an actual comparator), this provides significant evidence that there could have been discrimination. However, because there must be no material difference in circumstances between a claimant and a comparator for the purpose of section 23 EQA it is rare that a claimant can point to an actual comparator. The second situation in which a comparison with the treatment of another person may provide evidence of discrimination is where the circumstances are similar, but not sufficiently alike for the person to be an actual comparator. The treatment of such a person may provide evidence that supports the drawing of an inference of discrimination, sometimes by helping to consider how a hypothetical person whose circumstances did not materially differ to those of the claimant would have been treated (generally referred to as a hypothetical comparator). Evidence of the treatment of a person whose circumstances materially differ to those of the claimant is inherently less persuasive than that of a person whose circumstances do not materially differ to those of the claimant. That distinction is not always sufficiently considered when applying the burden of proof provisions in section 136 EQA:
…
63. Probably the most regularly quoted passage concerning section 136 EQA is from the judgment of Mummery LJ in Madarassy v Nomura International plc [2007] ICR 867 at paragraph 56:
"56. The court in Igen Ltd v Wong [2005] ICR 931 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."
64. It is worth noting that in Madarassy the Employment Tribunal did not analyse the treatment of the claimant in comparison to actual comparators. Ms Madarassy's claim was not analysed on the basis that there were men who were actual comparators, but that the scoring of men in a redundancy exercise could help establish how a hypothetical comparator would have been treated.
65. Where there is an actual comparator, it might be said that there is more than the bare fact of a difference of status and a difference of treatment. In Laing v Manchester City Council and another [2006] ICR 1519 Elias J noted:
"65. In our view, if one considers the burden of proof provision in the context of what a claimant needs to establish in a discrimination claim, what it envisages is that the onus lies on the employee to show potentially less favourable treatment from which an inference of discrimination could properly be drawn. Typically this will involve identifying an actual comparator treated differently or, in the absence of such a comparator, a hypothetical one who would have been treated more favourably. That involves a consideration of all material facts (as opposed to any explanation)."
66. Laing was approved by the Court of Appeal in Madarassy, which itself was approved by the Supreme Court in Hewage v Grampian Health Board [2012] UKSC 37; [2012] ICR 1034 and Efobi v Royal Mail Group Ltd [2017] UKEAT 0203/16, [2018] ICR 359 ; see the analysis of Underhill LJ in Base Childrenswear Limited v Nadia Otshudi [2019] EWCA Civ 1648 at paragraphs 16-18 .
67. If anything more is required to shift the burden of proof when there is an actual comparator it will be less than would be the case if a claimant compares his treatment with a person whose circumstances are similar, but materially different, so that there is not an actual comparator.
68. For example, if two people who differ in a protected characteristic attend a job interview and one is appointed but the other is not, that, of itself, would not be enough to shift the burden of proof, but if they scored the same marks in the assessment, so there is an actual comparator, the difference of treatment would seem to call out for an explanation. As Elias J noted in Laing at paragraph 73:
"As I said in Network Rail Infrastructure Ltd v Griffiths-Henry (unreported) 23 May 2006, para 17, it may be legitimate to infer that a black person may have been discriminated against on grounds of race if he is equally qualified for a post which is given to a white person and there are only two candidates, but not necessarily legitimate to do so if there are many candidates and a substantial number of other white persons are also rejected."
69. Accordingly, where a claimant compares his treatment with that of another person, it is important to consider whether that other person is an actual comparator or not. To do this the Employment Tribunal must consider whether there are material differences between the claimant and the person with whom the claimant compares his treatment. The greater the differences between their situations the less likely it is that the difference of treatment suggests discrimination."
Constructive dismissal
Perversity
Failure to give adequate reasons
"57. The following principles, which I take to be well established by the authorities, govern the approach of an appellate tribunal or court to the reasons given by an employment tribunal:
(1) The decision of an employment tribunal must be read fairly and as a whole, without focusing merely on individual phrases or passages in isolation, and without being hypercritical. In Brent v Fuller [2011] ICR 806, Mummery LJ said at p. 813:
"The reading of an employment tribunal decision must not, however, be so fussy that it produces pernickety critiques. Over-analysis of the reasoning process; being hypercritical of the way in which a decision is written; focussing too much on particular passages or turns of phrase to the neglect of the decision read in the round: those are all appellate weaknesses to avoid".
This reflects a similar approach to arbitration awards under challenge: see the cases summarised by Teare J in Pace Shipping Co Ltd v Churchgate Nigeria Ltd (The "PACE") [2010] 1 Lloyds' Reports 183 at paragraph 15, including the oft-cited dictum of Bingham J in Zermalt Holdings SA v Nu-Life Upholstery Repairs Ltd [1985] 2 EGLR 14 that the courts do not approach awards "with a meticulous legal eye endeavouring to pick holes, inconsistencies and faults in awards with the object of upsetting or frustrating the process of arbitration". This approach has been referred to as the benevolent reading of awards, and applies equally to the benevolent reading of employment tribunal decisions.
(2) A tribunal is not required to identify all the evidence relied on in reaching its conclusions of fact. To impose such a requirement would put an intolerable burden on any fact finder. Nor is it required to express every step of its reasoning in any greater degree of detail than that necessary to be Meek compliant (Meek v Birmingham City Council [1987] IRLR 250). Expression of the findings and reasoning in terms which are as simple, clear and concise as possible is to be encouraged. In Meek, Bingham LJ quoted with approval what Donaldson LJ had said in UCATT v. Brain [1981] I.C.R. 542 at 551:
"Industrial tribunals' reasons are not intended to include a comprehensive and detailed analysis of the case, either in terms of fact or in law …their purpose remains what it has always been, which is to tell the parties in broad terms why they lose or, as the case may be, win. I think it would be a thousand pities if these reasons began to be subjected to a detailed analysis and appeals were to be brought based upon any such analysis. This, to my mind, is to misuse the purpose for which the reasons are given."
(3) It follows from (2) that it is not legitimate for an appellate court or tribunal to reason that a failure by an employment tribunal to refer to evidence means that it did not exist, or that a failure to refer to it means that it was not taken into account in reaching the conclusions expressed in the decision. What is out of sight in the language of the decision is not to be presumed to be non-existent or out of mind. As Waite J expressed it in RSPB v Croucher [1984] ICR 604 at 609-610:
"We have to remind ourselves also of the important principle that decisions are not to be scrutinised closely word by word, line by line, and that for clarity's and brevity's sake industrial tribunals are not to be expected to set out every factor and every piece of evidence that has weighed with them before reaching their decision; and it is for us to recall that what is out of sight in the language of a decision is not to be presumed necessarily to have been out of mind. It is our duty to assume in an industrial tribunal's favour that all the relevant evidence and all the relevant factors were in their minds, whether express reference to that appears in their final decision or not; and that has been well-established by the decisions of the Court of Appeal in Retarded Children's Aid Society Ltd. v. Day [1978] I.C.R. 437 and in the recent decision in Varndell v. Kearney & Trecker Marwin Ltd [1983] I.C.R. 683."
58. Moreover, where a tribunal has correctly stated the legal principles to be applied, an appellate tribunal or court should, in my view, be slow to conclude that it has not applied those principles, and should generally do so only where it is clear from the language used that a different principle has been applied to the facts found. Tribunals sometimes make errors, having stated the principles correctly but slipping up in their application, as the case law demonstrates; but if the correct principles were in the tribunal's mind, as demonstrated by their being identified in the express terms of the decision, the tribunal can be expected to have been seeking faithfully to apply them, and to have done so unless the contrary is clear from the language of its decision. This presumption ought to be all the stronger where, as in the present case, the decision is by an experienced specialist tribunal applying very familiar principles whose application forms a significant part of its day to day judicial workload."
The grounds of appeal
Ground 1: Error in finding that Mr White was not an appropriate actual/statutory comparator under section 23 of the EqA.
Ground 1A
Ground 1B
Ground 1C
Discussion
Ground 2A: the Majority erred in law in holding that neither Mr Spindler nor Mr McQuitty was an appropriate comparator
Discussion
Ground 2B
Discussion
Ground 3: The Respondent impermissibly relied upon an alternative reason to justify its actions which did not form part of its pleaded case
"in light of safeguarding requirements and against a backdrop of rail strikes, the respondent was justified in investigating both the exam incident and the claimant's time-keeping."
Discussion
Ground 4: the Majority failed to determine the Appellant's claims of race discrimination properly and/or misapplied the burden of proof under EqA, section 136, and/or reached conclusions that were inadequately reasoned
a. Ms Flannery's false and/or inconsistent/contradictory explanation for initiating the formal investigation against the Claimant on 7 June 2017 after observing him arrive late. Mr Stephenson said that it was incumbent upon the ET to resolve the inconsistencies in her evidence and make primary findings of fact to consider if discrimination could be inferred;
b. Mr Thompson's failure to take notes and/or failure to keep records of his interviews with Mr Spindler, Ms Preece, and Mr McQuitty as recommended by paragraph 17:04 of the Equality and Human Rights Commission Code of Practice for Employment;
c. Mr Taylor and Ms Houston failed to keep any written record of their rationale for
taking the decisions in respect of the Claimant's disciplinary;
d. The Respondent did not have an equal opportunity policy;
e. Mr Thompson had not attended any formal equality training since 2003 or 2004;
f. Mr Thompson and Mr Taylor failed to investigate the Claimant's complaints of
race discrimination raised during his disciplinary hearing on 8 September 2017.
Discussion
Ground 5: The Tribunal made a finding of fact which was unsupported by the evidence
Discussion
Ground 6: The Majority wrongfully concluded that the Respondent had not acted unreasonably or in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence
Discussion
"95. The claimant also claims he was unfairly constructively dismissed. Both parties in their submissions set out the relevant test to be applied.
96. At the risk of duplication, the majority addressed the claimant's allegation (list of issues 12a-g) and concludes:
a. The claimant was not disciplined. He resigned before Mr Thompson reached a conclusion. It is not therefore correct to allege he was disciplined and Mr Spindler and Mr McQuitty (who were at least as culpable) were not. Mr Spindler addressed the failings. The respondent did not discover Mr McQuitty was also late on the 26/5/2017 until much later in 2017. The other person who was absent on 26/5/2017 (Mr White) was in fact disciplined.
b. Ms Flannery undertook a fact-finding exercise; she spoke with the claimant; a short note was made and that led to the appointment of Mr Thompson to conduct a formal investigation.
c. The majority absolutely rejects the claimant's contention that there was no policy for reporting lateness and absence included lateness. The claimant was subject to that policy and indeed had received several emails (over time) about it.
d. Mr Thompson was involved in the search for the set texts prior to the exam starting on 26/5/2017. That, however, did not create any conflict of interest or prevent him from conducting the investigation. In any event, the only matter which was taken forward from his investigation outcome, was the timekeeping issue, not what had taken place prior to the exam starting.
e. The Tribunal concludes that Ms Flannery did not take the decision for the outcome of the investigation to lead to disciplinary action to be taken. That was Mr Taylor's decision.
f. The respondent's policy provided that the full range of disciplinary sanctions are available to the disciplining officer. At Mr White's disciplinary meeting, Ms Flannery had the sanction of summary dismissal open to her; and she gave Mr White a formal oral warning. Mr White's absences were seemingly more serious than the claimants. The majority concludes that Mr Taylor approached the disciplinary meeting with an open mind and there is nothing to suggest the sanction of summary dismissal would have been applied to the claimant; albeit the full range of options remained, including the case being dismissed.
g. It is not correct to say the allegations against the claimant were weak. Mr Thompson was satisfied that there was, on the claimant's own admission, evidence of a pattern of lateness. Some of these occasions were when the claimant was due to be teaching. Mr Thompson was also concerned that the claimant was not taking enough responsibility to ensure he arrived at work on time. Mr Taylor clearly agreed with this analysis as he considered there was a case to answer at a disciplinary meeting. Another employer may have dealt with these issues outside the formal disciplinary framework. This respondent did not and there is nothing unreasonable about that, particularly in view of the safeguarding issues. Mr White was also subject to formal disciplinary action for the same headline reason of absence. The majority concludes it was reasonable for Mr Thompson to take the view that it was 'inconceivable' that the claimant could arrive at work on time if he caught the 8.27am train from Norbury. At the time, there were ongoing train strikes. Irrespective of that, the Tribunal takes judicial notice that trains do not regularly run on time. They are cancelled and delayed. The claimant's journey comprised various elements of public transport, each of which can fail (as it did on the 26/5/2018). The respondent was entitled to take the view and to communicate the same to the claimant (whether in formal proceedings or not) that he was simply not allowing enough latitude to get to work on time.
97. There are steps which the respondent has taken which can be criticised (for example, the use of the gate data or missing one of the disciplinary sanctions off the invitation letter). The respondent however has not acted unreasonably or in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust. Any respondent can always handle things in a different way from which they did. In this case, the respondent could have done things better; however all it was seeking to do was to address the claimant's time-keeping.
98. As a result of those conclusions, the majority finds that the claimant's claims of direct race discrimination contrary to the EQA fail and are dismissed. Similarly, there was no fundamental breach of the claimant's contract of employment by the respondent which entitled him to resign without notice. There was no breach at all of the implied term of mutual trust and confident by the respondent."
Conclusion