Appeal No. UKEAT/0487/08/MAA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 March 2009

Before
THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)
MR T HAYWOOD
MRS L TINSLEY

1) LONDON BOROUGH OF HACKNEY
2) MR H SINDHU	APPELLANTS

MS S DISTANT	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR DANIEL TATTON-BROWN
(of Counsel)
Instructed by:
London Borough of Hackney
Legal Secretary
298 Mare Street
London
E8 1EA	
For the Respondent	No appearance or representation by or on behalf of the Respondent

SUMMARY
RACE DISCRIMINATION – Direct discrimination
The Employment Tribunal in a race discrimination claim failed to identify the particular acts on which it based its finding of discrimination – Had it done so, it would have been clear that the only acts potentially covered by its finding had not been pleaded and/or were incapable of justifying an inference of discrimination.

THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)
1.	The Claimant, who is the respondent in this appeal, is a social worker.  She is of Afro-Caribbean origin.  She was employed by the London Borough of Hackney, to which we will refer as the “Council”, from April 2003 until her summary dismissal with effect from 13 February 2007 as a team manager in the duty and assessment service, which is part of the Council’s children and young people’s service.

2.	Following her dismissal the Claimant brought proceedings against the Council for unfair dismissal and against the Council and three individual managers - Mr Sindhu, Mr McCallum and Ms Morris - for racial discrimination and victimisation.  Following a ten-day hearing in March 2008 in the Stratford Employment Tribunal, chaired by Employment Judge Leonard, her claim of unfair dismissal was upheld.  A claim of racial discrimination against the Council and Mr Sindhu, who was head of the duty and assessment service, was also upheld.  Claims of victimisation against the two other managers were dismissed.  The Tribunal’s Judgment and Reasons were sent to the parties on 21 July 2008.

3.	The Council and Mr Sindhu appeal against the finding of racial discrimination.  There is no appeal against the decision that the Claimant was unfairly dismissed.  The Claimant’s solicitor has written to this Tribunal stating that she does not intend to resist the appeal.  Accordingly we have heard argument only from the Council, which has been represented before us by Mr Daniel Tatton-Brown of counsel.  We are grateful to him for his helpful skeleton argument and clear and succinct oral submissions.  The fact that the appeal is not opposed does not of course mean that it should be allowed unless we are persuaded that it is well-founded.

4.	The essential facts can be summarised as follows.  One of the cases for which the Claimant’s team was responsible was that of a child referred to in the Reasons as Y.  That case was considered on 29 August 2006 by an early intervention panel.  The Claimant attended that panel.  The same day Mr Sindhu wrote to Mr McCallum, who was a group manager within the service and thus intermediate between himself and the Claimant, expressing concerns about the Claimant’s work on Y’s case and on two other cases.  Apparently, and oddly, the Tribunal had no evidence from Mr Sindhu about what triggered that letter, but it would appear that he was concerned by the Claimant’s performance at the panel meeting.  It must be presumed, though again there was apparently no evidence about this, that other matters occurred or came to Mr Sindhu’s attention over the following weeks, because on 21 July 2006 he called the Claimant to a meeting, with no prior notice, and told her that she was suspended because of “flawed performance judgments” in three cases which “potentially resulted in children being left at serious risk of harm and abuse”.  The three cases were those of Y and two other children described as X and Z.  Disciplinary proceedings followed that suspension.  They began with an investigation conducted by a Mr Avraam.  As a result of his report disciplinary charges were formulated, again alleging flawed judgments on the Claimant’s part which had led to delays in action being taken, as a result of which children were left at risk.  A disciplinary hearing took place before a Ms Trowler on 6 February 2007, following which the decision to dismiss was taken.  The Claimant appealed but her appeal was unsuccessful.

5.	The Tribunal in its Reasons identified a number of fundamental failings in the disciplinary process and found the dismissal to be both procedurally and substantively unfair.  It said that it was dismayed, almost to the point of outrage, at how the Claimant had been treated.  We have not of course been addressed on this aspect; but the decision not to challenge the Tribunal’s judgment on this point is a clear recognition on the part of the Council that there were indeed very serious failings in its handling of the Claimant’s case, and we would not want anyone reading this judgment to be left with the impression that the Claimant had in fact been guilty of any incompetence that merited dismissal.

6.	The issue for us, however, is whether the Tribunal was entitled to reach the conclusion that it did on the discrimination claim.  That conclusion is put as follows in its formal Judgment:
“Her complaint of race discrimination in the initiation conduct and conclusions of the disciplinary process succeeds against the first and second respondents.”

The phrase “initiation conduct and conclusions of the disciplinary process” should be noted.

7.	The Tribunal had said in the early part of its Reasons that it intended to deal separately with the general background facts, with a special focus on unfair dismissal, and then with the facts specific to the claims of racial discrimination and victimisation.  It did not in fact entirely achieve that separation and some relevant findings are made in the earlier section, in particular a finding at paragraph 64 that a critical remark about the Claimant attributed to Ms Morris had not been made on racial grounds.  But the main factual findings specific to the race discrimination claim are made at paragraphs 140 to 146 of the Reasons, which read as follows:  
“140 It is not to be expected that a claimant will be able to disclose direct evidence as to the motives of those whose actions are under challenge.  Evidence has, however, been adduced relevant to the issues.  

141 It was given in evidence that three black social workers had made complaints of racial discrimination against Mr Sindhu.  That evidence has not proved to be of assistance to the Tribunal.  Mr Sindhu, facing serious challenges in a failing organisation, had to take firm measures in order to drive up standards.  It was inevitable that some would be resentful of the pressure applied to them.  Three black women represent too small a sample from which, without direct evidence of the particular circumstances, an adverse inference could be drawn.  The Tribunal has not heard such direct evidence and the fact alone that such complaints were made will not suffice. 

142 The evidence relating to the remark made to Ms Distant by Ms Morris is of no value in considering the wider claims.  The Tribunal having accepted Ms Morris’s explanation, it can be seen as an entirely isolated event. 

143 Of greater relevance is the admitted remark by Mr Sindhu to the effect that the social workers within his former employer were better than those within Hackney.  The comparison being made was between his former team who were predominantly white, with his new team who were predominantly black.  It is suggestive of an assumption, perhaps one held unconsciously, that black women did not do as well in social work as white woman.  

144 The evidence in the case requires the conclusion that Mr Sindhu’s intervention was decisive in the launching of disciplinary action against Ms Distant.  When Mr McCallum was in at least as good a position to make a judgment about the performance of the Claimant, no serious concerns were raised.  Giving evidence to this Tribunal represented Mr Sindhu with an opportunity to explain upon what his concerns were based and why he thought them so serious that only immediate suspension could be appropriate; he has not taken that opportunity.  The Tribunal does know that he discussed the Claimant with Mr McCallum and it is a proper inference that, seeing the force with which Mr Sindhu expressed those concerns, Mr McCallum was prompted to re-appraise his opinion of the situation. 

145 Mr Sindhu’s unwarranted refusal to make a simple concession to the Claimant over the question of a holiday during her period of suspension is indicative of an animosity.  The circumstances indicate that Mr Sindhu had already made up his mind that the Claimant was guilty of gross misconduct.  

146 When a senior manager expresses himself so clearly, it will be a natural tendency among his subordinates to assume that the must be right.  Such an assumption is evident throughout the investigation and disciplinary hearing.  Rigour and some courage will be required to say to the manager that the evidence simply does not support the concerns held by the manager; that rigour was lacking in all those who had to manage the disciplinary process.” 

Its conclusions on the race discrimination claim follow at paragraphs 147 to 154:  
“147 Is there evidence upon which a tribunal could conclude, absent an explanation by the Respondents, that Ms Distant was, on racial grounds, treated differently than someone in similar circumstances, who was of a different racial group?  Ms Distant was treated most unfairly and was singled out for harsh criticism.  That list must include the team manager dealing with X, whose decision it was to authorise closure when, in Mr McCallum’s opinion, that decision was to leave a child exposed to risk.  It will include all the social workers who, when charged with a responsibility to act, failed to carry out instructions; a category that must include Ms O’Neill.  It will include Mr McCallum who, when aware of the material facts, failed to act appropriately.   It might have included Mr Sindhu, whose stewardship of case Y, though the medium of the early intervention panel, failed to maintain effective direction and oversight. 

148 From its experience gained in dealing with cases involving Hackney, the Tribunal is aware that the Borough, a few years ago, had to face serious criticism of the effectiveness of its policies in combating race discrimination.  It has claimed that it took sweeping steps, introducing new initiatives and safeguards, that have provided a determined and effective response to those concerns.  Whilst the Respondent has acknowledged no failings in its handling of this case,  there is no room for a finding, by the Tribunal, that such failings as have been identified were representative of the way in which it deals with all such cases; nor do we believe that to be the case. 

149 Ms Distant, a black woman, worked as a manger in an organisation whose senior manager had, albeit by implication, expressed the view that black woman were not as successful in social work as their white colleagues. 

150 Taking into account all the material circumstances, the Tribunal must answer the question posed at the commencement of this part in the affirmative; that must shift to the Respondents the burden of providing evidence that satisfies the Tribunal of a non-discriminatory explanation.  With the marked exception of Ms Morris, that test is not satisfied. 

151 It will not assist an understanding of this judgment to repeat the very many concerns set out above, leading to a dismissal decision that was both substantively and procedurally unfair.  It invites the conclusion that the whole process was tainted by a prejudiced assumption that it was more likely than not that the claimant was seriously at fault because she is black.  Not only does the evidence not repudiate that possibility, it leaves the members of this Tribunal of the view that it provides the probable explanation.  By application of the burden of proof, the Tribunal must conclude that the complaint of unlawful discrimination on racial grounds, in the initiation, conduct and conclusions of the disciplinary process, succeeds.

152 In the light of the foregoing, the Tribunal cannot avoid the conclusion that the complaint of race discrimination must succeed against both the first and the second respondents.  The case against Ms Morris is not made out and that must be dismissed.  The Tribunal has given careful thought to the separate case against Mr McCallum.

153 Whilst critical of Mr McCaullum’s role in the process, there is no satisfactory basis for a conclusion that he dealt with the Claimant on any less favourable basis because of her race; indeed, we do not think that he did.  He is more easily to be criticised for his failure to effectively manage the Claimant and there is no evidence that he held the view that black women did not make competent social workers.  It is to be hoped that he will find much useful experience in this whole process.  The case that he discriminated against the Claimant on racial grounds is not made out and is dismissed.  

154 The Tribunal does not propose to go through each and every one of the many divisions and sub-divisions of the complaints set out pages 32-40 or to record separate conclusions in respect of them.  Save as set out in paragraph 151 above, the remaining specific instances relied upon are not made out and do not succeed.”  

Some of the references to the facts in those passages will not be clear by reference to our more abbreviated summary given above, but none of them require elucidation for the purposes of this appeal.

8.	We are sorry to say that we cannot regard the analysis by the Tribunal at paragraphs 147 to 154 as satisfactory.  The fundamental failure is that the Tribunal fails anywhere to particularise the actual acts which it finds to have been done on racial grounds.  A blanket finding referring to “the initiation conduct and conclusions of the disciplinary process” is not good enough.  That process involved a number of different acts done by different people - most obviously by Mr Sindhu, who initiated the process by suspending the Claimant and presumably putting in place the investigation; by Mr Avraam, the investigator; by the various managers and other witnesses who gave evidence to the investigation; by Ms Trowler who took the dismissal decision; and by the person (unnamed by the Tribunal) who conducted the appeal.  The identification of the acts in question is essential for at least three reasons.  

9.	First, it was necessary for the Tribunal to make findings only on such acts of discrimination as had been pleaded.  That has been trite law ever since the decision of the Court of Appeal in Chapman v Simon [1994] IRLR 124.  In the ET1 in the present case the particulars of the claim of discrimination pleaded under section 6 did not in fact complain at all of the Claimant’s dismissal or of any part of the process leading to it.  At a subsequent case management discussion she was required to particularise the acts complained of.  She did so by means of a schedule, and the case proceeded thereafter on the basis that her ET1 was amended accordingly.  Most of the particulars given in the schedule are in fact irrelevant for the purpose of this appeal since they relate to matters on the basis of which no finding against the Council or Mr Sindhu was made.  The only particulars relating to the “initiation, conduct or conclusions of the disciplinary process” are: (1) an allegation that the Council failed to provide “a racially diverse panel from the Claimant’s suspension onwards, whether during the fact finding investigation or as a panel member”; (2) an allegation that “the investigation and the way it was conducted was an act of less favourable treatment and/or a detriment suffered by the Claimant”, no particulars being given of that allegation save that all managers and other staff interviewed during it were white; and (3) some complaints about the manner of the Claimant’s suspension.  These read as follows:

“Without warning respondent 2, that is to say Mr Sindhu, called the claimant to his office and suspended her.  Contrary to policy the respondent 2 failed to give the claimant the opportunity to bring a colleague and failed to warn the claimant of the suspension.  The claimant was not given any documentation on the day of suspension by respondent 2, such as a copy of the disciplinary procedure and the claimant had to later ask for copies of documents.  Respondent 2 physically accompanied the claimant off the premises of respondent 1 immediately following her suspension.  The claimant was permitted to take only her coat and handbag.”

The schedule also contained a rubric by the Claimant in the following terms:

“Whilst the claimant accepts that she does not present complaints of dismissal related discrimination she relies upon the same as inference evidence of discrimination.”

The fact that the Claimant was not alleging that the dismissal was in itself discriminatory had already been identified by the Employment Judge at the CMD to which we have referred.

10.	Those being the only acts complained of, we do not see how any part of the Tribunal’s finding on dismissal can be sustained.  The first of the acts, namely the failure to provide a racially diverse panel, was not a matter alluded to by the Tribunal at all.  More generally, if the decision that the “conclusions” of the disciplinary procedure were discriminatory means, as it would naturally seem to, that the decision to dismiss was being held by the Tribunal to be an act of discrimination, such a claim had been explicitly disavowed.  As for the two specific complaints about the investigation and the suspension: 

(1)	The complaint about the conduct of the investigation was on its face a complaint about Mr Avraam, but the Tribunal makes no findings at all about his mental processes.  We return to this point more fully below, and it is in fact quite clear that discriminatory motivation on his part was not the basis of the finding of discrimination. 

(2)	As regards the manner of the suspension, that is analytically distinct from an allegation that the decision to suspend was itself taken on racial grounds.  
	
That latter point might be thought to be over-analytical.  On a matter of this importance, however, we cannot agree; but in any event there are other difficulties about any finding that Mr Sindhu’s decision to suspend the Claimant was discriminatory, to which we turn below.

11.	The second problem about the absence of any clear analysis of the acts complained of is that without it is impossible to identify the individuals who did the acts, or took the decisions, in question, and to consider the reason why they acted in the way complained of - which means, in a case like this, a consideration of their mental processes or motivation: see, classically, the speeches of Lord Nicholls in Nagarajan v London Regional Transport [1999] ICR 877 and Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065.  There is in fact no consideration in the crucial passage of the Reasons of any part of the mental processes of any of the persons involved save Mr Sindhu.  That too, therefore, is fatal to any finding of discrimination in respect of anything save the suspension, which is the only act on the part of Mr Sindhu which is complained of (or in any event in respect of which any finding is made).  (In this respect we should note that the finding at paragraph 146 that some or all of those participating in the disciplinary process were influenced by a perception that Mr Sindhu wanted to see the Claimant dismissed can not by itself be a finding of racial grounds.)

12.	As to Mr Sindhu, we would accept Mr Tatton-Brown’s submission that the findings made by the Tribunal do not constitute a basis on which it could have found that the burden of proof had shifted in accordance with the principles established in Igen Limited v Wong [2005] ICR 931.  Most of the matters relied on by the Tribunal at paragraphs 147 to 154 amount to no more than the fact that the Claimant was black and was treated unfairly.  It is too well-established to need citation of authority that that by itself is not enough.  Insofar as paragraph 147 might be read as saying that all the other people whose conduct in the cases of children X, Y and Z could have been criticised, but was not, were white, that is not in fact what the Tribunal says, and it is in any event wrong.  As Mr Tatton-Brown told us, the team manager dealing with the case of X was a Ms Millen, who is black, and the social workers who had failed to carry out instructions included at least two other black women.

13.	In fact the only piece of evidence on which the Tribunal appears to have relied is the remark by Mr Sindhu referred to at paragraphs 143 and 148.  The Claimant’s evidence as to that had in fact been more explicit than is reproduced in the Reasons.  In her witness statement she said that Mr Sindhu had observed at a meeting that “workers in the shires” - as we understand it, he had previously been employed in a shire county - “were brighter and did not need to be instructed as much as black workers in LBH [that is, the London Borough of Hackney]”.  If the Tribunal had found that was indeed what Mr Sindhu had said it might well have been sufficient to shift the burden of proof; but it did not so find.  It is fairly clear from paragraph 143 that it found only that Mr Sindhu had said, as indeed he had admitted, that his team in his former employment was better than his team at Hackney.  He was not found to have said anything about the Hackney team being black: the distinction between the racial mix of the two teams was thus at most an inference as to his, perhaps unconscious, thinking.  Insofar as there is any doubt about what the Tribunal meant to find at paragraph 143, it is resolved by the terms of paragraph 149, which refer to what it believes to be the racial connotations of Mr Sindhu’s remark arising “by implication”.  We do not believe that a remark of that kind, which in itself had no racial overtones, is capable of bearing the weight of establishing a prima facie case of racial discrimination in the absence of any other such indications.

14.	A third reason why an accurate identification of the particular acts complained of was essential is that without it it was impossible to address any time point.  On the face of it, the Claimant’s suspension and much at least of the disciplinary process occurred outside the relevant time limits.  The Tribunal would only have had jurisdiction to consider any complaints about those matters if it had concluded that they formed part of an act extending over a period within the meaning of section 68(7)(b) of the Race Relations Act 1976, or had decided that it was just and equitable to extend time under subsection (6).  No consideration of those matters appears in the Reasons at all.  The questions which might have arisen had that point been considered are not entirely straightforward, and since as a result of the matters which we have already considered it is clear that this appeal will have to be allowed we need not consider this aspect further.

15.	It follows from our reasoning that this is not a case for remission to the Employment Tribunal.  Most, if not all, of the acts covered by the Tribunal’s blanket finding of discrimination were not in fact before it in the first place; but in any event, insofar as any of them may have been, we have found that there was no basis in the Tribunal’s primary findings on which a finding of discrimination could have been made.  We accordingly not only allow the appeal but dismiss the discrimination claims.