Appeal No. EAT/1271/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	                   At the Tribunal
	           On 30 January 2002
Judgment delivered on 11 March 2002

Before
MR COMMISSIONER HOWELL QC
MS N AMIN
MR K M YOUNG CBE 

MRS A AHUJA 	APPELLANT

INGHAMS (ACCOUNTANTS)	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR J SYKES
(of Counsel)
Instructed by:
Messrs Nigel Adams  & Co
Solicitors
4th Floor, Knightrider Court
London EC4V 5JP	
For the Respondents	MS H GREWAL
(of Counsel)
Instructed by:
Messrs Cox Clitheroe
Solicitors
1 Malet Street
London WC1E 7JN	

MR COMMISSIONER HOWELL QC

1	This is an appeal by Mrs Angela Ahuja against the Decision of the London (Central) Employment Tribunal sitting on 31 July and 1 August 2000 which rejected her complaints of racial discrimination and constructive dismissal on the part of her former employers, Inghams, a firm of accountants.  The Tribunal’s reasons are set out in the Statement of Extended Reasons sent to the parties on 6 September 2000, at pages 11 - 18 of the appeal file before us.  

2	By the Order of the Appeal Tribunal at the preliminary hearing on 23 March 2001, only two grounds out of those in the original Notice of Appeal were directed to proceed to a full hearing before us. Both related to incidents of alleged bullying of Mrs Ahuja, a typist, by a Ms Middleton, her supervisor, on 1 and 7 September 1999 respectively.  These the Appeal Tribunal at the preliminary hearing accepted had been alleged, albeit somewhat obliquely, in the Applicant’s evidence before the Employment Tribunal, to have amounted to acts of discrimination against her on racial grounds.  The issues directed for full hearing were whether the Tribunal, in rejecting all the allegations of racial discrimination, had erred in failing to identify a proper comparator in relation to those two incidents, or alternatively in failing to address specifically the comparator alleged to have been identified in the Applicant’s evidence: a Mrs Stuart, another typist who was white.  The remaining grounds in the original Notice of Appeal were not directed for full hearing.  However Mr Sykes, who appeared on Mrs Ahuja’s behalf, sought also to pursue a similar set of arguments on the treatment of comparators by way of appeal against the Tribunal’s rejection of a separate ground of complaint referred to in a third ground of the original Notice of Appeal, based on an alleged failure on the part of the Respondents to investigate Mrs Ahuja’s complaints of racial discrimination adequately.  This he did on the basis that the Appeal Tribunal’s judgment on the preliminary hearing rejecting that ground of appeal had referred to it only in the context of constructive dismissal claims, and not as a separate issue on racial discrimination.

3	The context in which these incidents of alleged discrimination came to be raised in the course of the evidence before the Tribunal was that Mrs Ahuja’s Originating Application dated 18 November 1999 had set out a narrative of instances over the years since January 1997 when Ms Middleton took over as her supervisor, down to her decision on 18 November 1999 to resign from the firm’s employment and make claims for constructive dismissal and racial harassment because of the intimidating way she felt she had been treated by Ms Middleton over the years.  

4	At an earlier Tribunal hearing, it had been determined or agreed that Mrs Ahuja’s complaints about the majority of this period were too late to be the subject of complaint in their own right as acts of discrimination in these Tribunal proceedings, and this was not a case where what she was alleging amounted to one “continuing act” for the purposes of Section 68 Race Relations Act 1976.  In consequence the Tribunal at the full hearing of this case was only concerned to consider whether or not there had been any acts of discrimination among the incidents she relied on in the period on or after 21 August 1999, and that was recorded by the Tribunal in paragraph 2 of their Extended Reasons.  They went on also to record that:
“3    The issues so far as this Tribunal were concerned were therefore agreed at the outset of the hearing as follows:
(a) Race Discrimination.  Whether Mrs Ahuja had been subjected by Ms Middleton to adverse treatment on the ground of race, Mrs Ahuja being Asian, which led to Mrs Ahuja going sick from 8 September 1999 and subsequently taking out a grievance.  
(b)  Whether there had been discrimination on the ground of race by the Respondent in failing properly to investigate or take action to stop discrimination by Ms Middleton.
…….
(d)  In her Originating Application, Mrs Ahuja had made reference to being forbidden to go out to lunch at a certain time on 1 September and also an incident that occurred on the stairway.  However, this is not reflected in the evidence before the Tribunal so the Tribunal has not found this matter proved.”

5	The facts found by the Tribunal recited the earlier history of Mrs Ahuja’s employment and the deterioration of relationships from 1997 when her previous supervisor had been replaced by Ms Middleton.  As the Tribunal recorded, they were satisfied on the evidence they had heard that this lady was: 
“what is popularly described as an office bully”.
To understand the context of the two incidents with which we are concerned on 1 and 7 September 1999, it is necessary also to quote the Tribunal’s findings about what had happened earlier at the beginning of August (that is shortly before the period with which they were directly concerned):
“11     At that time [the beginning of August 1999] Ms Middleton asked Mrs Stuart if she would like to type some complicated accounts or another document; neither was urgent at the time.  Mrs Stuart decided to opt for the other document on the basis that more complicated accounts were generally typed either by Mrs Ahuja or Ms Middleton herself.  A couple of days later the accounts had become urgent because the particular client had informed the Respondent that he was shortly to go away on holiday and it was necessary for him to sign the accounts before he left.  Accordingly, Ms Middleton gave the accounts to Mrs Ahuja to type.  The mere fact of giving accounts to Mrs Ahuja was not unusual since, as already indicated, either Ms Middleton or Mrs Ahuja would type the more complicated accounts.  However, Mrs Ahuja had understood that Mrs Stuart had simply refused to type these accounts and Mrs Ahuja felt that she was being treated differently.  Accordingly, Mrs Ahuja declined to type the accounts.  Ms Middleton referred the matter to the Respondent partners who called Mrs Ahuja in to discuss the matter.  Mrs Ahuja made clear to the Partners that she was trying to make a point in refusing to type the accounts, namely, as she told them at the time, that she believed that she was given work that others did not want to do (presumably a reference to Ms Middleton and Mrs Stuart) and also that she was treated differently from Mrs Stuart. 
12	However, after she had aired this grievance and there had been a discussion between Mrs Ahuja and the Partners, Mrs Ahuja indicated that as she had now made the point she wanted to make she was quite prepared to type the accounts and she duly typed them.  They had to be checked and they came back to her a couple of days later for final preparation before being sent to the client.
13.	However, Mrs Ahuja was dissatisfied by the circumstances of what had happened.  Accordingly, on the day she left for her holiday, 19 August 1999, she wrote a letter to the Respondent Partners expressing that she was dissatisfied with the situation and hoping that they would investigate matters further.”

6	The Tribunal’s findings on the two incidents relevant to this appeal are recorded simply in paragraph 15 and 16 of their Extended Reasons as follows:
“15.	Mrs Ahuja returned to work on 1 September 1999.  On that day she found that there were two sets of accounts for her to deal with which Ms Middleton had started but with which she appears to have got into something of a muddle…….
16.	Nothing else happened until 7 September when Mrs Ahuja was shouted at by Ms Middleton in what Mrs Ahuja describes as “her usual rude voice”.  
17.	On 8 September Mrs Ahuja became so stressed by her feelings towards Ms Middleton that she left on sick leave and in the event did not return.”
7	As noted in the Appeal Tribunal’s judgment on the preliminary hearing the suggestion that these two incidents amounted to acts of racial discrimination against Mrs Ahuja in their own right only appears obliquely, in one sentence of the witness statement put before the Tribunal by Mrs Ahuja (who was conducting her own case) saying that when she returned from holiday:
“There was another big pile of management accounts left for me to do which was another job that neither [Ms Middleton] nor [Mrs Stuart] liked doing.”

It is, we think, a fair inference from this and from the Tribunal’s record of the submissions of the Respondents’ Counsel about what questions on Ms Middleton’s conduct they were concerned to decide (which referred only to the different incident, of which no evidence had been given at all: see paragraphs 3(d) and 23-24 of the Extended Reasons) that these two incidents were never put before the Tribunal by Mrs Ahuja in any more specific terms than the one sentence in her witness statement we have quoted, as incidents of discrimination relied on in their own right.  Nevertheless, since they were the only two incidents of mistreatment by Ms Middleton in the relevant period identified in the Tribunal’s factual findings, we think it has to be assumed that it was these the Tribunal must have had in mind when they explained their reasons for rejecting the complaints of racial discrimination in relation to her conduct, as follows:
“Discrimination by Ms Middleton
31  The Tribunal was satisfied from what it had heard from a number of witnesses that Ms Middleton is something of a bully.  However, although Mrs Ahuja suffered as a result of Ms Middleton’s conduct, the Tribunal were satisfied that it was not conduct based on Mrs Ahuja’s race.  The Tribunal had found that Ms Middleton had also, for some time at least, bullied Mrs Reed who is white while, on the other hand, she had been friendly with another Asian woman, Mrs Patel.  Accordingly, those matters about which Mrs Ahuja complains in respect of the period on or after 21 August 1999 do not amount to a detriment contrary to section I and/or section 4 of the Race Relations Act 1976 and her complaint in that regard fails.”

8	On behalf of Mrs Ahuja it was submitted by Mr Sykes that in reaching the conclusions expressed in that paragraph the Tribunal had erred in making comparisons with two people who, in his submission, were not proper comparators for the purposes of Section 3(4) Race Relations Act 1976 at all.  They were both persons employed at a superior grade to Mrs Ahuja, and their circumstances could not properly be said to be the same as, or not materially different from, those of Mrs Ahuja for the purpose of determining whether there had been discrimination against her.  Further or alternatively, the Tribunal had erred in failing to address specifically the proper comparator who was Mrs Stuart: also employed as a typist, and with no material difference in her circumstances, apart of course from the difference in race.  Mr Sykes’ contention was that the Tribunal’s error stemmed from what he said was a fundamental flaw in the Tribunal’s approach in that they had:
“considered Mrs Stuart only as someone treated differently but not in terms of her colour or race”.

The issue of whether there were racial grounds for the Respondents’ actions was, in his submission, the first question a Tribunal considering a complaint of alleged racial discrimination had to consider.  Only then could it move on to a properly informed judgment on the issue of whether the complainant had suffered less favourable treatment or not.  This he said flowed from the fact the words “on racial grounds” appear first in Section 1(1)(a) of the 1976 Act, dealing with direct discrimination.  

9	Ms Grewal on the other hand submitted for the Respondents that by reference to well established authority this was a reversal of the process a Tribunal considering a question of racial discrimination were required to undertake.  In her submission, the inquiry could be analysed into three stages: first, whether the complainant had suffered any treatment which could be identified as a detriment; second, whether that treatment was “less favourable” by reference to a proper comparator; and third, whether if those two questions were answered in the affirmative, it was proper to find or infer from all the facts and circumstances that this had been on racial grounds.  She readily accepted that the Tribunal’s reasoning in paragraph 31 of their Extended Reasons was not expressed as analytically as it might be, but submitted it was a case of sound reasoning poorly expressed.  On a fair reading of what they were saying, it could be taken as implicit that the Tribunal were finding or assuming in favour of the Applicant that she had suffered less favourable treatment than Mrs Stuart: a white person at the same grade who had not been bullied. That made her so obvious a comparator that this part of the reasoning could be taken as read. On that basis it could be seen that what the Tribunal were doing was to address, entirely properly by reference to all the circumstances including the way Ms Middleton behaved towards other persons, the third question of whether they were satisfied it was right to draw the inference that any identifiable differences in treatment of Mrs Ahuja had been due to racial factors.

10	In our judgment, Ms Grewal’s analysis of the questions a Tribunal is required to ask itself in considering a complaint of this nature was plainly the correct one.  As she said, it reflects well established authority.  We found Mr Sykes’ argument against it confused: to demonstrate the incorrectness of his suggestion that the question whether a Respondent has acted “on racial grounds” is the first one to be determined, even before finding that the complainant has suffered any less favourable treatment, it is only necessary to refer to one short passage from the judgment of Balcombe LJ in Chapman -v- Simon [1994] IRLR 124 at paragraph 33 where he said:
“(2) In order to justify a finding of racial discrimination, there must first be a finding of discrimination, i.e. in the present case that Ms Chapman treated Ms Simon less favourably than she treated some other person - see s1(1)(a) of the 1976 Act.  In relation to their finding - that Ms Chapman had prejudged the case against Ms Simon - the Industrial Tribunal made no finding that Ms Chapman had treated Ms Hoyle or some other person more favourably.  There was therefore no finding of discrimination on which to base a finding of racial discrimination.
(3) In order to justify an inference, a Tribunal must first make findings of primary fact from which it is legitimate to draw the inference.  If there are no such findings, then there can be no inference: what is done can at best be speculation.”

11	However when it comes to the actual approach adopted by the Tribunal in this present case, we have had to conclude despite Ms Grewal’s very well argued submissions that the reasoning process recorded in paragraph 31 of the Extended Reasons was defective. It does not show the Tribunal to have adequately separated out in their minds the questions of whether there was detrimental or less favourable treatment by reference to a proper comparator, and whether if so, that was due to racial factors; and if anything it shows the reverse.  As a practical matter we reach this conclusion with some reluctance, since as already indicated the allegations of how the conduct complained of after 21 August 1999 could amount to unlawful discrimination were not put before the Tribunal anything like as clearly as they might have been, at a hearing when many other grounds of complaint were being advanced, and on any footing these two particular incidents, neither of which had even been mentioned in the Originating Application, were not the most prominent or serious of the allegations relied on. Moreover the tribunal’s finding in paragraph 11 about why the more complicated accounts were generally given to Mrs Ahuja rather than Mrs Stuart may provide the answer to at any rate the first of them.  

12	Nevertheless, as these were the only instances of conduct by Ms Middleton identified as the potential sources of complaint after 21 August 1999, we think it was incumbent on the Tribunal in pronouncing expressly on such conduct in paragraph 31 to identify and record findings, based on a proper comparison, on whether they amounted to less favourable treatment, to provide themselves a proper focus for any determination of whether that specific treatment should be held to have been accorded on racial grounds or not.  The importance of making clear findings on which to base an evaluation of that last and most difficult issue is emphasised in the last part of the passage from Balcombe LJ quoted above, and again, more recently by the Court of Appeal in the case of Anya - v- University of Oxford [2001] IRLR 377.  

13	In the present case, having read and re-read the Tribunal’s paragraph 31, we have reached the conclusion that the lack of any overt reference to the only obvious comparator, and the ambiguity in the final sentence referring expressly to the question of “detriment”, when on Ms Grewal’s analysis they should have moved on from that to the question of racial grounds, make the Tribunal’s decision on this issue of discrimination unsafe, since it cannot be seen that they were addressing the comparison issue in relation to these two specific incidents correctly.  Accordingly, on that point only, we are compelled to set their Decision aside.  

14	Having done so, this not being a case where we can say with certainty what the Tribunal’s answers should have been to the relevant questions on discrimination had they been addressed correctly, we remit the case to a differently constituted Tribunal for rehearing and redetermination of the issues of (1) whether the two incidents on 1 and 7 September amounted to detrimental treatment and discrimination against Mrs Ahuja by the Respondents through the actions of Ms Middleton and (2) whether if so, that was on racial grounds.  We direct the new Tribunal that their reconsideration of the case is to be by reference to those two incidents only, as recorded in the existing Tribunal’s primary findings in paragraphs 15 and 16 of the Extended Reasons.  For the purpose of the rehearing, it will be for the Applicant or those representing her to define:
(a) in what respects it is alleged that these incidents amounted to less favourable treatment of Mrs Ahuja than Mrs Stuart or any alternative actual or hypothetical comparator identified and relied on; and
(b) the grounds relied on to justify drawing any inference that any discrimination so established was on racial grounds.  

15	We reject the second aspect of Mr Sykes’ submissions, that the Decision recorded in paragraph 32 of the Extended Reasons, rejecting the complaint of discrimination for alleged failure to investigate Mrs Ahuja’s complaints properly, should be set aside for similar reasons.  In the first place we think it extremely doubtful whether the first two grounds of the Notice of Appeal do extend to that aspect of the Tribunal’s decision so as to bring it within the proper scope of the appeal directed to be heard by us at all.   It is not so referred to in any of the detailed paragraphs 6.1 to 6.10 inclusive of the Notice of Appeal explaining the basis of those grounds of appeal, all of which plainly relate only to the two incidents of alleged discrimination by the conduct of Ms Middleton on 1 and 7 September 1999.   Nor was this separate complaint identified at all as an issue directed for full hearing in the detailed judgment of the Appeal Tribunal given by Mr Recorder Burke QC on 23 March 2001.  

16	But secondly and in any event, we considered the answer provided by Ms Grewal when this additional issue was sought to be raised at the full hearing to be conclusive.  In our judgment she was correct in saying that there was no arguable error of law on the part of the Tribunal, in relation to comparators or otherwise, in the way this separate head of alleged discrimination was dealt with.  In the first place the only actual comparator suggested by the Applicant under this head had again been Ms Middleton, who had also lodged a complaint or a grievance of her own at the beginning of August.  So far as those complaints were concerned the Tribunal had addressed the suggested comparison, but found as a fact that the action taken on them had been similar and there had been no difference in treatment.  On Mrs Ahuja’s complaints of alleged inaction following further correspondence in September and October (which was all that was within the jurisdiction of the Tribunal since the earlier matters predated 21 August) no comparison had been put forward, but the Tribunal in any event found as fact that the Respondents had progressed matters properly: nothing in their actions had amounted to a failure to investigate the Applicant’s complaint.  Given those findings which are not open to dispute, there was, as Ms Grewal rightly argued, no possible basis on which a complaint of less favourable treatment could arise.  Accordingly we dismiss that separate contention insofar as it is before us on the appeal at all.  In all respects other than the issues we have identified and remitted for rehearing under paragraph 14 above, the Decision of the Employment Tribunal promulgated on 6 September 2000 stands.