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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Look Ahead Housing & Care Ltd v. Bola Akinde [2008] UKEAT 0130_07_3101 (31 January 2008) URL: https://www.bailii.org/uk/cases/UKEAT/2008/0130_07_3101.html Cite as: [2008] UKEAT 130_7_3101, [2008] UKEAT 0130_07_3101 |
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At the Tribunal | |
On 17 December 2007 | |
Before
HIS HONOUR JUDGE REID QC
MR J MALLENDER
MS P TATLOW
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MISS ![]() ![]() ![]() (of Counsel) Instructed by: Messrs Levenes Solicitors Ashley House 235-239 High Road Wood Green London N22 8HF |
For the Respondent | MR SATVINDER SINGH JUSS (of Counsel) Instructed by: Messrs Fadiga & Co Solicitors 2 The Boulevard Balham High Road London SW17 5BW |
SUMMARY
Practice and Procedure: Perversity
Race discrimination: Inferring discrimination / Comparison
The Respondent was dismissed from her post as a night hostel worker after abusing a resident. She claimed, inter alia, race discrimination. The Tribunal upheld the claim.
Held: the decision was not Meek compliant and was perverse.
HIS HONOUR JUDGE REID QC
Basic Facts
Issues for the Tribunal
"5.1. the Claimant's racial and ethnic origin,
5.2. whether the Respondent treated the Claimant less favourably on grounds of her gender by not taking any disciplinary action against her colleagues Freddy and Patrick in respect of the fact that she was left alone in the canteen whereas that fact featured heavily in the Claimant's disciplinary procedures and in the decision to dismiss her, and
5.3. whether the Respondent treated the Claimant less favourably on the grounds of her race by taking no action against Resident D when compared against a white comparator the Respondent would either, under the same circumstances, have taken appropriate action against Resident D or if the Respondent did not take any action against Resident D then the Respondent would not have taken action against the staff member concerned."
The Tribunal's approach
"(i) The determination of cases such as this requires a staged process. We first have to make findings of primary fact and to determine whether those show less favourable treatment and a difference in race and gender, in respect of both claims, ? The test is: are we satisfied, on the balance of probabilities and with the burden of proof resting on the Claimant, that this Respondent treated this black woman less favourably than he treated or would have treated someone in the same situation that was white and male.
(ii) If we are so satisfied, we proceed to the second stage and consider whether we could draw an inference that the less favourable treatment was on the grounds of race and/or the fact that she is female. It requires some investigation of the Respondent's thought processes: what is the "reason why" the treatment occurred? There may be findings of fact relevant to the issues discussed above which influence us here, or other findings of fact ?
(iii) At this stage we direct ourselves in accordance with section 63A of the SDA and 54A of the RRA. If we could draw an inference of race and sex discrimination, we look to the Respondent to see whether it provides a credible, non-discriminatory explanation or reason for the difference in treatment. In the absence of such an explanation, or rather in the absence of anything which we accept as proven on the balance of probabilities, we will infer or presume that the less favourable treatment occurred because of the Claimant's race and gender, as claimed."
The findings on Race Discrimination
"82. The Tribunal found facts which could lead to inferences of less favourable treatment. These are as follows: the fact that the Respondent seized upon the apparent breach of the Personal Safety at Work Code and used it against the Claimant in her disciplinary hearing, in the dismissal letter and at the appeal, the fact that the Respondent failed to take any action against Resident D until some time had passed and not until after the disciplinary hearing and then did not find it necessary to inform the Claimant that action had been taken until much later and possibly not until these proceedings were underway."
"87. ?We find that in a case where a white worker is threatened by a resident and reacts by making an inappropriate remark both aspects of that incident would have been treated seriously and dealt with at the same time and treated equally as seriously by the Respondent. This would have been the case even it the white worker had an existing final written warning on their file for [an] unrelated matter which did not involve inappropriate behaviour to residents. The Respondent would also have considered the threatening behaviour towards the worker as a serious matter and would have given due consideration to whether it amounted to provocation in eliciting the inappropriate outburst from the worker, if it was out of character. It is also our judgment that the issue of the breach of the Personal Safety at Work Policy would not then have become the main issue in the disciplinary hearing and certainly not at the appeal hearing.
88. If there had been no prolonged discussion of the breach of the Personal Safety at Work Policy at the hearings and instead the issue of provocation had been properly considered, the Respondent would then have found itself with a worker who displayed misconduct towards a resident which she had never done before and who had a final written warning on her record from an unrelated type of incident ie breach of their laundry facilities. This is a worker who has been employed since 1988 without ever having behaved towards a resident in that way prior to this incident. In our judgement, such a comparator would not have been dismissed. It is probable that in the case of the hypothetical comparator the Respondent would have applied some other sanction short of dismissal.
89. We therefore find that the Claimant suffered a detriment because the Respondent failed to consider the racial abuse she suffered seriously enough, failed to deal appropriately with Resident D or to inform her when they did and instead, took into account irrelevant uninvestigated considerations at the internal hearings which resulted in her being dismissed. The Claim of discrimination contrary to Section 1 of the Race Re1ations Act 1976 is well founded."
"103. ?The Claimant did behave inappropriately towards him in her response to him and she always admitted this. However, this remark was made in a particular context and there is no evidence that the Respondent took that context into account in deciding what sanctions to impose on her.
104. In our findings we also stated that the Respondent placed significant emphasis on the alleged breach of the Personal Safety at Work Policy even though the investigation had not focused on or dealt with that in any way and no-one else had been questioned about this alleged breach and it had not been properly considered as an item of misconduct for which she should be disciplined. However, this is taken by the Respondent once inadvisably mentioned by the Claimant's representative and used in effect, as the reason to dismiss her. This is clearly less favourable treatment and resulted in the Claimant losing a job to which she was obviously committed and had been prepared to work at for a considerable period of time."
Look Ahead's case
The Claimant's case
(i) An appeal tribunal can only intervene to upset a finding of fact by a tribunal of first instance on the ground of perversity. It can only do so if the decision reached was not a "permissible option". In this case, the finding by the ET was not "unsupported by any evidence" and its conclusions reached were "a permissible option".
(ii) The Tribunal adopted the two-stage process. From the facts found the ET concluded that it "found facts which could lead to inferences of less favourable treatment", and identified the facts in paragraph 82. The ET did as a fact-finding tribunal give adequate reasons for its findings that the Claimant had established sufficient facts, from which, in the absence of an adequate explanation, the Employment Tribunal might draw an inference that the acts of which she complained amounted to less favourable treatment by reason of her race.
(iii) It then "looked to the Respondent for a non-discriminatory reason for this treatment." It noted that "The Respondent's case is that the Claimant was disciplined and eventually dismissed because of a breach of the Respondent's professional conduct code", found that "the workers at the Respondent would have a duty to maintain professional standards ..." but concluded that, "The claimant was disciplined for breach of the professional conduct code. However, her dismissal was for something different". It then gave specific reasons for this view:
"[Look Ahead] interpreted the personal safety at work policy to her detriment. The apparent breach of the Personal Safety at Work Code features and becomes the main subject of discussion in her disciplinary hearing and appears even more prominently in the appeal hearing and was therefore in the mind of the dismisser when the decision to dismiss rather than apply any other sanction short of dismissal. The Respondent then put that incident together with the final written warning which she had received sometime before over her misuse of the laundry facilities, it was decided that they had no choice but to dismiss her. This is not therefore a dismissal based on the breach of the professional conduct code."
It is not the case that the Tribunal "failed to give adequate consideration to the facts that showed the Respondent had a non-discriminatory reason" because the Tribunal was there demonstrating that it did give the point proper consideration.
(iv) This decision was a "permissible option" on the facts as found by the Tribunal. The clearest basis for this is to be found after the Employment Tribunal in considering the Claimant's sex discrimination claim gave detailed consideration to whether there was "a non-discriminatory reason for the difference in treatment between the Claimant and Freddy" and concluded that, "?the Claimant was in actuality, disciplined for the alleged breach of the Personal Safety at Work Code. In comparison, no one is questioned about it", and noted that, "The Claimant is not alone in her breach of the Code ..." yet, "None of the employees concerned had been dismissed as a result".
(v) Nor was it the case that the Tribunal failed to give sufficient prominence to the fact that the Claimant had had committed an act of misconduct in breach of the Respondent's Professional Conduct Code and had a final writing warning on her record. But employers cannot construct a reason for a dismissal. In this case, the Tribunal found that the non-discriminatory reasons for dismissal were not sustainable on the evidence. It had earlier observed at paragraph 53 that:
"?The Respondent's decision to leave the matter of dealing with the Resident D to one side while they proceed with the disciplinary action against the Claimant could have led the claimant to conclude that they doubted her and other witnesses' evidence and/or that they had not taken the issue of racial abuse seriously. It is apparent that at the time the Respondent considered the Claimant's retort to the resident to be more serious than the racial abuse and threats of violence towards her."
(vi) It did not follow that just because the Claimant had a "final warning" against her that she would have automatically been dismissed as a result of this incident. The ET dealt with this issue very carefully before concluding that the Claimant had clearly suffered a detriment as a result of her employer's actions.
(vii) The ET had the benefit of hearing the evidence. It concluded that if a white hypothetical comparator were threatened by a resident and reacted by making an inappropriate remark, both aspects of that incident would have been treated seriously and dealt with at the same time and treated equally as seriously by the Respondent. It observed that:
"If there had been no prolonged discussion of the breach of the Personal Safety at Work Policy at the hearings and instead the issue of provocation had been properly considered, the Respondent would have found itself with a worker who displayed misconduct towards a resident which she had never done before and who had a final written warning on her record from an unrelated type of incident; ie breach of their laundry facilities."
And that:
"the Claimant suffered a detriment because the Respondent failed to consider the racial abuse she suffered seriously enough, failed to deal appropriately with Resident D or to inform her when they did and instead took into account irrelevant uninvestigated consideration at the internal hearing which resulted in her being dismissed."
Since the EAT cannot substitute its own view for that of the Employment Tribunal the EAT cannot intervene if the Tribunal's decision is within the range of 'permissible options'. In this case, it was.
Discussion
"It is the job of the industrial tribunal to find the facts, apply the relevant law, and to reach the conclusion to which its findings and the experience of its members lead. When an industrial tribunal has done just that, it will not be often that it can be said legitimately that its conclusion offends reason or was one to which no reasonable tribunal could have come. If the industrial tribunal did not err in law, its decision should not be disturbed by an appellate court unless it can be said in effect: 'My goodness, that was certainly wrong.' "
The County Council of Hereford & Worcester v Neale [1980] IRLR 168 per May LJ at para. 45, (CA):
"The danger in that approach is that an appellate court can very easily persuade itself that, as it certainly would not have reached the same conclusion, the Tribunal that did so was 'certainly wrong'. The more dogmatic the temperament of the judges, the more likely they are to take that view. That is a classic non sequitur?. What matters is whether the decision under appeal is a permissible option. To answer that question in the negative in the context of employment law, the EAT will almost always have to be able to identify a finding of fact which was unsupported by any evidence or a clear self-misdirection in law by the tribunal. If it cannot do this, it should re-examine with the greatest care its preliminary conclusion that the decision under appeal was not a permissible option and has to be characterised as 'perverse'".
Piggott Bros & Co Ltd v. Jackson [1991] IRLR 309 per Lord Donaldson MR at para. 17, (CA).
An appeal on the ground of perversity should only be allowed where an overwhelming case has been made out that the Tribunal has reached a conclusion which no reasonable tribunal could have reached: Yeboah v Crofton [2002] EWCA Civ 794.
"It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises; and it is highly desirable that the decision of an Industrial Tribunal should give guidance both to employers and trade unions as to practices which should or should not be adopted."
Meek v City of Birmingham Council [1987] IRLR 250 per Bingham LJ at para. 8 (CA).
"HS [the chair of the appeal panel] asked [Mr Walker] whether the disciplinary panel discussed the provocation that [the Claimant] might have had. Mr Walker confirmed that the statements do reflect that there was service user provocation, but her response to this was considered."
There is no record that the Claimant's representative referred to the issue of provocation, perhaps not surprisingly since (contrary to the Tribunal's view) his case was that there had never been any misconduct by the Claimant. The decision letter stated that:
"in reaching its decision, the panel gave full consideration to the oral submission by Glen Walker, the chair of the disciplinary panel who summarized the proceedings of the disciplinary hearing and notes of the disciplinary hearing, which concluded in the decision to dismiss you. The appeal panel also gave full consideration to your written letter of appeal and the oral submission made by both yourself and William Everett on your behalf during the hearing."
It seems on the basis of this material that there was no basis for the Tribunal's finding that Look Ahead failed to take the provocation into account, nor is there any indication (if such were the case) as to why the Tribunal found that the decision letter did not accurately reflect the views of the panel and the reasons for its decision. Despite the failure of the Claimant's representative to raise the point it is clear the disciplinary panel and the appeal panel were alive to the issue of provocation.
"They did not treat both elements of the incident with the same seriousness as in our judgment they ought to have done."
It is difficult to see why the fact that one participant in the incident was dealt with before the other shows that the two elements were not treated with the same seriousness.
"The Respondent interpreted the personal safety at work policy to the Claimant's detriment. The apparent breach of the Personal Safety at Work Code features and becomes the main subject of discussion in her disciplinary hearing and appears even more prominently in the appeal hearing and was therefore in the mind of the dismisser when the decision to dismiss rather than apply any other sanction short of dismissal. The Respondent then put that incident together with the final written warning which she had received over her misuse of the laundry facilities, it was decided that they had no choice but to dismiss her. This is not therefore a dismissal based on the breach of the professional conduct code."
"The only allegation against Bola at the hearing was that set out in Look Ahead's letter of 28 September 2004 that she had breached Section i of the Professional Code of Conduct". At the disciplinary hearing her Union Representative raised the issue of why she was on her own in the canteen when the incident occurred. Under Look Ahead's Personal Safety at Work policy an office should be staffed by two members of staff where possible. There was also a protocol in place at the hostel that no one remained alone in the canteen. It was not raised as an allegation of misconduct that Bola had breached the Personal Safety at Work policy or this protocol and I understood from her Union Representative that he was raising this as a mitigating factor in her defence."
"The only allegation that the disciplinary panel considered was the allegation that she had verbally abused a resident. There was discussion during the disciplinary hearing as is evidenced by the note of the hearing regarding the fact that Bola was left alone on duty in the canteen. Bola's Union Representative, Will Everett, raised this as a factor in her defence and that she had been alone. The panel took this into account once it had made the findings in relation to the allegation against Bola but it was not dealt with as a separate allegation against her."
"On the allegation of misconduct that you breached Look Ahead's Code of Conduct, particular section i 'professional conduct' the panel have made the decision to uphold the allegation of misconduct. Taking into account that you have on file a final written warning in existence the sanction being imposed by the panel is that of dismissal with payment in lieu of notice."
"It is the decision of the panel that the allegation of misconduct as concluded by the disciplinary panel be upheld in this instance on the basis that you breached Look Ahead's Code of Conduct, section i Professional Conduct. The panel took into account the fact that you had on file a final written warning in existence and therefore imposed the sanction of dismissal with payment in lieu of notice. Having carried out a proper investigation, we feel that there was sufficient evidence to reasonably believe that you were verbally abusive to a service user."
"?.This is a worker who has been employed since 1988 without ever having behaved towards a resident in that way prior to this incident. In our judgement, such a comparator would not have been dismissed. It is probable that in the case of the hypothetical comparator the Respondent would have applied some other sanction short of dismissal."
"Q. Have you had any meetings with [Resident D] regarding this?
A.I had a conversation, informing [Resident D] that I would need to discuss the matter further with him. I obviously didn't want to get into a discussion re [the Claimant's] position and I intend to speak to him on Monday following the outcome of this investigation.
Q. Has he not been written to even though he has racially abused a member of staff, I think something should be done about this matter?
A. I think you are right about [Resident D]. I should have written to say that he has been abusive. But where allegations have been made against staff the policy is very clear, but with service users the procedure is less clear. I didn't want to prejudice the situation, and I was not able to discuss why [the Claimant] was not at work."