Appeal No.	 EAT/709/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 August 2002
Judgment delivered on 7 October 2002

Before
HIS HONOUR JUDGE J R REID QC
MR B V FITZGERALD MBE
MR S M SPRINGER MBE

BRADFORD HOSPITALS NHS TRUST	APPELLANT

MR W AL-SHABIB	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MISS MELANIE TETHER
(of Counsel)
Instructed By:
Messrs Hempsons
Solicitors
Clarendon House
9 Victoria Avenue
Harrogate HG1 1DY	
For the Respondent	MR TARIQ SADIQ
(of Counsel)
Instructed By:
Messrs Davis Wallis Foyster
Solicitors
5 Castle Street
Liverpool L2 4XE

JUDGE J R REID QC:

Introduction
1.	This is an appeal from a decision of an Employment Tribunal held at Leeds on 29, 30, and 31 January 2001 and 2, 3 and 9 April 2001.  The decision was sent to the parties on 24 April 2001.  By the decision the Tribunal dismissed the great bulk of the complaints made by Mr Al-Shabib against the Trust but held that he had been discriminated against on the grounds of race when his membership of the Trust's gym at the Bradford Royal Infirmary was withdrawn and in the manner in which his grievance procedure was dealt with, and that he was also victimised (contrary to section 2 of the Race Relations Act 1976) in the treatment of his grievance procedure.

2.	The appeal raises two entirely separate areas of concern.  The first is that it is said that the Tribunal had no jurisdiction to make any finding of victimisation because there was no claim of victimisation was made in Mr Al-Shabib's claim.  The second area relates to the findings of discrimination and it is suggested that the Tribunal fell into error by finding that the Trust had acted unreasonably and proceeded straight from that finding to an assumption that the reason for the behaviour was racially based.

The facts
3.	The Tribunal had to deal with a great many issues of fact, most of which are irrelevant to the issues on this appeal.  So far as relevant, the facts can be summarised as follows:  Mr Al-Shabib is of Iraqi national origin.  He obtained a post as a researcher in the Medical Physics Department of the Bradford Royal Infirmary on a fixed term contract from 12 July 1999 to 9 July 2000.

4.	On 25 August 1999 he joined the Infirmary's Staff Gym.  On doing so he signed a memorandum agreeing to abide by its rules.  The rules included one limiting card usage to members only and stating that for safety reasons non gym members, relatives or friends should not be allowed into the gym.  It was specifically provided that any deliberate breach of the guidelines would result in loss of membership without refund and exclusion from any future use of the gym area.

5.	Notwithstanding the rules Mr Al-Shabib brought his wife and child into the gym and, it appears, his wife used gym equipment.  Other members complained.  Mr Al-Shabib was identified and on 21 January 2000 was asked by the Gym Staff Officer, Miss Coles, not to do so.  Mr Al-Shabib acknowledged what was said to him but the following day he confronted her angrily and she became upset.  She then rang Miss Steele, the Director of Rehabilitation, and later Mr Al-Shabib also rang her complaining that there should be segregated sessions for men and women, because he said it was not acceptable within his religion for him to exercise in the company of women other than his wife.  On 24 January Miss Steele told Mr Stuart, the manager responsible for the gym, to investigate.  He had been away from work on 21 January.  Miss Steele, the Tribunal found, "equivocated about her knowledge of the applicant's racial or national origin" in her evidence to the Tribunal. 

6.	Mr Stuart spoke to Miss Coles but not to Mr Al-Shabib.  He accepted in his evidence to the Tribunal that it was a mistake not to have done so.  Thus he did not conduct a thorough investigation.  With the approval of Miss Steele he wrote to Mr Al-Shabib cancelling his gym membership.  He did so because he formed the view that he could not trust Mr Al-Shabib not to break the rules in the future.  Mr Al-Shabib's reaction was to write to the Chief Executive complaining.  The Chief Executive referred the matter to Dr Dugdale, Mr Al-Wahid's line manager, and also to Mr Dean, the Human Resources Manager.  Because by this time other issues involving Mr Al-Shabib had arisen, his grievance was then passed on to Mrs Rose Stephens, the Director of Patient Care.

7.	The hearing of the grievance did not proceed smoothly.  By this time Mr Al-Shabib had served an RR65 questionnaire.  In the course of the hearing before Mrs Stephens he persistently asserted he was the victim of racism.  He said the Hospital was happy to provide substandard services, and that the management was incompetent and less than honest.  Miss Steele and Miss Coles were jealous because they were single people without families.  He made allegations that members of the ethnic minorities were dying "here" ie in the hospital.  He said he had no confidence in the system.  People were ganging up on him.  They were all gangsters.  He was, the Tribunal found, "at times difficult to control.  He was given to using emotive language."  Mrs Stephens rejected his grievance relating to the withdrawal of his gym membership, finding it was a straightforward matter of breach of the rules and had nothing to do with race discrimination or sex discrimination (which Mr Al-Shabib was also alleging).

8.	The Tribunal found that "Mrs Stephens closed her mind to the applicant's case" because she felt her authority challenged by the way Mr Al-Shabib conducted himself.  The Tribunal's view was that Mr Al-Shabib "does not behave in what one might describe as a conventional Anglo-Saxon way" and for Mrs Stevens to have expected him to do so was unreasonable and showed "a lack of awareness of racial and cultural differences."  Mr Al-Shabib was not satisfied with her treatment of his grievance and took it to the next stage where the chairman of the panel was a Mr Gibson.  Mr Al-Shabib apparently had no complaints about this grievance hearing, held on 20 June 2000, although (so far as we can tell) the result was the same.

9.	There were no direct comparators available to the Tribunal.  The only other persons whose gym membership had been revoked all had it done for failure to pay subscriptions. 

Victimisation
10.	The Tribunal held that Mr Al-Shabib had been victimised contrary to section 2 of the 1975 Act by Mrs Stephens.  It held that there were two protected acts:  the issue of the RR65 questionnaire and his persistent allegations of racism in the course of the grievance procedure.  The Tribunal found that Mrs Stephens was biased against Mr Al-Shabib because of the things he said to her including the allegations of that he was a victim of race discrimination and for that reason closed her mind to his allegations.  It therefore found that there was discrimination by victimisation.

11.	The Tribunal only had jurisdiction to decide those complaints which had been put before it:  see Chapman v Simon [1994] IRLR 124.  It could not therefore properly make a finding of victimisation if the issue was not raised in the ET1.  Even allowing the most generous degree of latitude to the applicant who had made his complaint without legal representation in determining whether the issue was raised, there was nothing in Mr Al-Shabib's ET1 or the witness statement he annexed to it which could properly have put the Trust on notice that there was any claim for discrimination by victimisation.  We were invited by counsel for Mr Al-Shabib to look at a variety of paragraphs of the statement annexed to the ET1, but none of them put the Trust on notice of this claim, nor was there material there which should in our view properly have done put the Trust on notice.

12.	The Chairman did not raise the issue of victimisation in the course of the hearing, nor did he invite any amendment.  Had he done so different considerations might have applied.  No submissions were made about victimisation.  The result was that the Trust was unaware until receipt of the decision that the Tribunal was even considering the possibility of a finding of victimisation.

13.	In these circumstances the finding of victimisation cannot stand.  It was not a matter which was before the Tribunal and the Tribunal had no jurisdiction to make a finding of victimisation.  Even if it had had jurisdiction, the matter would have had to be remitted because it was contrary to natural justice for the Tribunal to decide the issue without giving the Trust an opportunity of dealing with the point and making submissions on it:  see Hereford and Worcs CC v Neale [1986] IRLR 168 and Albion Hotel (Freshwater) Ltd v Maia da Silva [2002] IRLR 200.

Racial Discrimination
14.	It is necessary to differentiate between the two ways in which the Tribunal found Mr Al-Shabib had been discriminated against.  The first related to the withdrawal of his gym membership.  The second was in the way Mrs Stephens conducted the grievance hearing.  So far as the first is concerned the Trust submitted that there was no evidence on which the Tribunal could find that a person of a different race would have been treated differently.  Counsel submitted that the Tribunal had made the error of confusing unreasonable treatment with less favourable treatment.

15.	The approach a Tribunal should adopt in deciding whether there has been unlawful discrimination is well-established.  There are, essentially two questions the Tribunal must ask:  (1) whether the employer treated the applicant less favourably than it treated or would treat other persons; and (2) if so, whether that less favourable treatment was on unlawful grounds.  The importance of the first question was spelt out in Glasgow City Council v Zafar [1998] ICR 120, by Lord Browne-Wilkinson at p 124 A-C:

“The Act of 1976 requires it to be shown that the complainant has been treated by the person against whom the discrimination is alleged less favourably than that person treats or would have treated another.  In deciding that issue, the conduct of a hypothetical reasonable employer is irrelevant.  The alleged discriminator may or may not be a reasonable employer.  If he is not a reasonable employer he might well have treated another employee in just the same unsatisfactory way as he treated the complainant in which case he would not have treated the complainant ‘less favourably’ for the purposes of the Act of 1976." 

As Neill LJ pointed out in King v Great Britain China [1991] IRLR 513 hostility to a black worker may justify an inference of racial bias if there is nothing else to explain it.  In Anya v Oxford University [2001] IRLR 377 at para 14 the Court of Appeal noted that the explanation that an employer might behave equally badly to all employees depends not on a hypothetical possibility but on evidence.

16.	Those principles were applied in Marks and Spencers plc v Martins [1998] ICR 1005, where the Court of Appeal held that an employment tribunal had fallen into error when, instead of asking whether the applicant had been treated less favourably than a person of a different racial group, it instead asked itself whether there had been ‘bias” on the part of the employer - see at 1018H to 1019G.  The effect of these principles is that, in order to sustain a complaint of discrimination, the complainant must show that some other person was or would have been treated differently by the employer in the same or similar circumstances.  Where an applicant cannot show evidence relating to the treatment of an actual comparator whose circumstances were the same or not materially different, it is necessary for the tribunal to construct a hypothetical comparator and to test the applicant’s treatment against that benchmark:  see Balamoody v United Kingdom Central Council for Nursing, Midwifery and Health Visiting [20021 IRLR 288, in which Chief Constable of West Yorkshire v Vento [[2001] IRLR 124 was approved. 

17.	The Trust accepted that Mr Stuart should have spoken to Mr Al-Shabib before withdrawing his membership and that a hypothetical comparator would have been heard before his membership was withdrawn.  The Tribunal held that the failure to speak to Mr Al-Shabib was "less favourable treatment".  The Tribunal went on to make the finding of which complaint is made "we also found that a hypothetical comparator would have been given the opportunity to give an undertaking to abide by the rules as a condition precedent to the return of his or her membership card."  This, it was held, also constituted less favourable treatment.

18.	There were no direct comparators.  As the Tribunal pointed out, the only other persons whose membership had been withdrawn, were non-payers.  There was no evidence about anyone having been disciplined and required to give an undertaking as to future behaviour.  There was no evidence that non-payers were spoken to before having membership withdrawn or that they were re-admitted on undertaking to pay in the future.  So far as hypothetical comparators were concerned, counsel for Mr Al-Shabib was unable to indicate to us any evidence from which the Tribunal could have constructed the hypothetical rule-breaking comparator who would have been treated differently.  The decision of the Tribunal gives no indication of how the hypothetical comparator was constructed.  In our view there was simply no evidence from which the Tribunal could draw any inference of different treatment.  The finding that the Appellant should have spoken to the Applicant cannot, without more, support the conclusion in the following sentence that a hypothetical comparator would have been treated differently.  It demonstrates that the ET failed to distinguish between the issue of reasonableness and the issue of less favourable treatment.  In our judgment the Tribunal erred in leaping from the admitted fact that Mr Stuart should have spoken to Al-Shabib to the conclusion of discrimination and in doing so erred in law.  The Tribunal then further erred in going onto hold, in the absence of any expressed basis for finding that a hypothetical comparator would have been treated differently, that he was treated less favourably by not being offered the chance to give an undertaking as to his future behaviour.

19.	As to the rejection of Mr Al-Shabib's grievance, Tribunal’s reasons for finding that the decision to reject the Applicant’s grievance was made on racial grounds were because Mrs Stephens’ reasons “were unreasonable and disproportionate and because she gave us in her evidence the clear impression that she felt challenged in her authority by someone who presented unconventionally.  What made the applicant unconventional was his racial and national origin”.  There is no indication that, in considering Mrs Stephens’ response to the Applicant’s grievance, the Tribunal asked itself whether the Applicant had shown that Mrs Stephens had treated him less favourably than she treated or would have treated some other person in similar circumstances who behaved in a similar way.  The whole of the Tribunal's analysis is concerned with its assessment of Mrs Stephens’ attitude towards the Applicant, in particular its conclusion that she was “prejudiced against him because of the things he said to her, which included his allegation of race discrimination”.  The Tribunal failed to consider whether she treated him less favourably than she would have treated a comparator.  The Tribunal again elided reasonableness and less favourable treatment.  This emerges clearly from the finding that discrimination was made out “because [Mrs Stephens’] reasons were unreasonable and disproportionate”.

20.	Mrs Stephens told the Tribunal that Mr Al-Shabib had used language which was inflammatory and in all the circumstances excessive, and these were factors which led her to conclude that the option of returning the Applicant’s membership card in return for an undertaking to abide by the rules in future would be unworkable.  In the light of that the Tribunal should have considered how Mrs Stephens would have treated a person of a different race who behaved in the manner in which Mr Al-Shabib behaved.  The Tribunal described Mr Al-Shabib as “at times difficult to control” and “given to using emotive language”.  However, they found that it was “unreasonable” for Mrs Stephens to expect him to conduct himself differently because (as the Tribunal saw fit to put it at paragraph 38) “he does not behave in what one might describe as a conventional Anglo-Saxon way”.  According to the Tribunal, Mrs Stephens’ expectations showed “a lack of awareness of racial and cultural differences”.  This analysis was based on the assumption that Mr Al-Shabib was unconventional in that he was difficult to control and given to using emotive language, and "what made [him] unconventional was his racial and national origin".

21.	Whilst it may sometimes be legitimate for a tribunal to take into account differences in behaviour which reflect racial and cultural differences, it is wrong for a tribunal to make findings based on the existence of such differences unless there is some evidential basis for them, frequently in the form of expert evidence.  For a tribunal simply to assume that a particular ethnic group has a specific characteristic, e.g. that they are given to using emotive language, is fundamentally wrong, even if the assumption is made for benign purposes.  Where, as here, the assumption forms the basis of a finding that an employer is guilty of racial discrimination, it is plainly impermissible.  It was wrong for the Tribunal to criticise Mrs Stephens for lacking an awareness of racial and cultural differences, and for failing to adjust her reactions accordingly, without some proper evidential basis for finding that those differences had the effect assumed.  The very broad distinction assumed by the Tribunal that there is a difference between “Anglo-Saxon” and “Iraqi” behaviour, is impermissible just as is the assumption apparent in the decision that persons of Iraqi nationality or Arabic origin are difficult to control or given to using emotive language.  The question which the Tribunal should have asked but did not was whether Mrs Stephens would have adopted the same approach in the case of any employee who behaved discourteously and used inflammatory language in the course of a grievance hearing.

Conclusion
22.	In our view, since the Tribunal has taken upon itself a jurisdiction it did not have in relation to the victimisation question and has failed to address all the questions it should have done before making findings as to discrimination, the decision of the Tribunal should be set aside and the discrimination claim remitted for re-hearing (if that is indeed necessary) of the very limited issues which were the subject of this appeal before a different Tribunal.  It would, of course, be open for Mr Al-Shabib to apply to amend to add a victimisation claim arising out of these same limited facts.  Whether or not that application would succeed would be a matter for the Tribunal.  The matters the subject of this appeal formed only a small and comparatively trivial part of Mr Al-Shabib's complaints before the Tribunal:  the bulk of them have been finally disposed of.  The events in question took place over two years ago, and on any view there were errors on each side.  It should not be beyond the power of the parties with a modicum of good sense and reasonableness to reach some form of compromise and so avoid a further expensive and time-wasting hearing.  We express the hope that they will do so.