Appeal No. UKEAT/0564/11/DM

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

		At the Tribunal
		On 3 July 2012

Before
THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
MR A HARRIS
MRS D M PALMER

(1) BIRMINGHAM CITY COUNCIL
(2) MRS S SEMLALI	APPELLANTS

MRS P MILLWOOD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellants	MR EDMUND BEEVER
(of Counsel)
Instructed by:
Birmingham City Council
Legal Services
Ingleby House
11-14 Cannon Street
Birmingham
B2 5EN
	
For the Respondent	MR SIMON SWANSON
(Representative)
Employment Consultants
Malika House
81 George Street
Lozells
Birmingham
B19 1NS	

SUMMARY
RACE DISCRIMINATION – Inferring discrimination

An employee who was black was treated disadvantageously when compared to an Asian employee found to be in the same material circumstances.  Though the Employment Tribunal accepted this did not without more justify a shifting of the burden of proof, it held that there was more.  However, it did not identify the “more”, and left it unclear as to whether it might simply have relied upon different race, different status, and detriment as needing to be explained by cogent evidence from the employer.  This was an error of law.  However, held that a finding that there had been a number of explanations offered for the difference in treatment all of which were not believed could be taken into account in determining whether the burden of proof shifted.  Accordingly, the case was remitted to the same Tribunal to consider the same facts in the light of submissions in accordance with the EAT’s Judgment.

THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
Introduction
1.	This appeal is against a decision of an Employment Tribunal in Birmingham that upheld a complaint made to it by the Claimant that she had in one respect been directly discriminated against on the ground of her race.

The background facts
2.	The Claimant was black British and of Afro‑Caribbean background.  She worked in the education field initially as a nursery‑room leader in May 2005.  In the summer of 2006 it was agreed between her and the then headteacher of Mansfield Green School that she would move into a family support role in order to avoid a threatened redundancy.  She was not given to understand that the post was a seconded post.  She first learnt that it was thought by her employer to be so in mid‑June 2007.  That had implications for her, because when she subsequently lost a post as an acting nursery manager she reverted not to the role of family support worker as she would have wished but the role from which it was said she had been seconded.  That was to her disadvantage.

3.	She began her work as family support worker at the same time as did one Harein Qousar.  She was Asian; there was therefore a difference in race.  The Tribunal held that the Claimant and Ms Qousar were comparable; that was because both the Claimant and she had been teaching assistants until September 2006 and had both worked as family support workers from 2006.  There was a difference, however, to the disadvantage of the Claimant in the way in which the two were treated.  In December 2006 Ms Qousar was given a written contract setting out that she was a permanent employee as a family support worker.  Although on 20 November 2006 an email had been sent by HR chasing the provision of contracts in writing for both Ms Qousar and the Claimant, the Claimant did not get a contract in writing.  The Tribunal found on the evidence that if she had done, then at the time there was no reason to think it would not have been a permanent contract, since it found that she had been appointed to a permanent post.

4.	Accordingly, when the Tribunal came to consider various complaints by the Claimant that she had been discriminated against on the ground of her sex and her race, it had amongst the other complaints that it rejected in total to consider the allegation that the Claimant was assured by a Mr Knight she would be in the role of family support worker; she was given no contract, and was informed that the role was not permanent but a secondment.  It was considering an allegation that focused upon the absence of a written contract being provided before the summer of 2007 to the Claimant and her being told in 2007, in July, that her role was not permanent but a secondment.

The Tribunal’s findings 
5.	In the critical paragraphs, which Mr Beever, who appears for the Appellant counsel, rightly identifies as being from paragraphs 6‑32 as to the background facts and paragraphs 110‑121 the relevant findings leading to the decision, the Tribunal concluded that the Claimant had received no contract compared to Ms Qousar; that from September 2006 until 2007, when the Claimant received a contract for the role, she was in exactly the same situation as Ms Qousar.  The contract in September 2007 was not on a permanent basis.  The Tribunal went on to note there was no material difference between their situations until September 2008.  At paragraph 113, having said there was no material difference, the Tribunal then commented that the difference between the two women was that Ms Qousar had gone to the chair of governors and the staffing subcommittee to obtain a contract as an FSW and the Claimant had not.  Then the Tribunal said this:

“114. At this point, the tribunal considered the recent decision in [Hammonds LLP and Ors v] Mwitta [UKEAT/0026/10, 1 October 2010, a decision of the Appeal Tribunal presided over by Slade J] to which we were referred by Mr Beever, in particular paragraphs 64-72.  As Mr Beever highlighted to us there needs to be something more than a difference in status and treatment.  We have considered paragraph 67 where we are cautioned against drawing inferences from unexplained unreasonable conduct.
115. In respect of this allegation, the tribunal concludes that there was something more.  In doing so, we have looked, during the first stage of our analysis, at the explanation for the treatment given by the respondent, as we are permitted to do following the line of cases culminating in Madarassy [v Namura International [2007] ICR 867].
116. We have found that both women were in similar circumstances.  Ms Qousar asked for a permanent contract from the Chair of Governors and the staffing committee approved her permanent contract.  […]
117. There is a difference in status between the two women (one Black British, one Asian) and less favourable treatment.  The explanation for the claimant not being given a contract was that Mrs Semlali was having administration problems at the time.  This explanation, as we have shown in our findings of fact is not consistent.  Ms Qousar got her permanent contract very quickly after the meeting approving her appointment.  Further, the explanation that Mrs Semlali wanted to protect the claimant as the funding for FSW was limited does not stand up to examination.  Whatever Mrs Semlali’s position in this, the fact is that the governors under Roshan Dug, had given Ms Qousar a permanent contract and not done the same for the claimant.
118. The claimant has satisfied us that we can conclude she was treated less favourably than Harein Qousar with effect from December 2006 when Ms Qousar got her permanent contract.
119. The burden of proof shifts to the respondent for an explanation as to why this happened.  We know what Mrs Semlali felt about the appointment of Ms Qousar being irregular, but we have not been given an explanation as to why Ms Qousar got a permanent appointment and the claimant did not.  Mrs Semlali was not present at the committee meeting where the decision was made.  She understands that Ms Qousar got the permanent job because she asked for it and had relevant experience.  But with respect to Mrs Semlali, she could not know that for certain.  She was not there.  We simply do not know why Ms Qousar got a permanent contract and the claimant did not, despite Ms Burns [HR personnel] asking for contracts for both of them in her email of 20 November.
120. In the absence of an explanation for this treatment by the respondent, the claim of direct race discrimination in respect of this allegation is therefore upheld.  The claimant was directly discriminated against by the governing body on the grounds of her race.”

The law
6.	Direct discrimination was at the time of these proceedings proscribed by the Race Relations Act 1976 (RRA).  By section 1(1):

“A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if—
(a) on racial grounds he treats that other less favourably than he treats or would treat other persons […].”

7.	By section 54A it is provided:

“(1)  This section applies where a complaint is presented […] that the respondent—
(a) has committed an act of discrimination, on grounds of race or ethnic or national origins […].
(2) Where on the hearing of the complaint the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent—
(a) has committed such an act of discrimination […] against the complainant […].
the Tribunal shall uphold the complaint unless the respondent proves that he did not commit, or, as the case may be, is not to be treated as having committed, that act.”

The appeal – ground 1
8.	Two grounds are advanced by Mr Beever in economical, focused and careful submissions before us.  First, he submits that for discrimination to exist at all the complainant and the chosen comparator, where there is one, must be in materially similar circumstances.  We accept that.  He submits that as a matter of fact the Claimant and Ms Qousar could not be said to be in materially similar circumstances and the Tribunal was wrong so to find.  His submission is that the Tribunal should have, but did not, take into account circumstances preceding the time when both of them began work under contract as family support workers in September 2006.  He accepts that the passage we have cited above, in which the Tribunal expressed its view that they were in comparable circumstances, was factually accurate, but he submits it ought to have recognised that there was a material difference.  The material difference arose in the nature of the experience that Ms Qousar had and that, he submitted, the Claimant by comparison did not.

9.	Thus he submits that, although she had not been employed prior to September 2006 as a family support worker, Ms Qousar had, though formally appointed as a teaching assistant, actually occupied the role of family support worker.  That was evidenced by the Tribunal’s words in paragraph 119.  It came also from what Mrs Semlali, the headteacher of the school, had said in evidence.  A passage from counsel’s notes was set out at paragraph 7 of the Notice of Appeal.  It said that Ms Qousar had come into school shortly after Mrs Semlali did to support “family – translation and […] teachers” and that she “Was actually doing family support worker but voluntarily” and “Also supporting children of reception age”.  When children centre status was obtained she did much family‑orientated work and work in respect of women who were victims of domestic violence.  He submits the Tribunal did not reflect that evidence in its decision; had it properly taken that into account, it would have been bound to find that Ms Qousar was in materially different circumstances because of her materially greater experience in family support work.

10.	Against that, in written submissions more fully than orally, it was submitted by Mr Swanson that that was a short passage extracted from greater evidence and no proper basis upon which to rely for a submission that the evidence compelled different findings of fact.  He argued that the evidence was such that the Claimant too had significant experience but in any event the Tribunal was entitled to form a view, which was not plainly and obviously wrong, as to the comparability of Ms Qousar and the Claimant.  Mr Beever having recognised that his argument had to go as far as showing that the conclusion the Tribunal came to was perverse or reached in material misapprehension of fact, he could here do neither.

Discussion – ground 1
11.	As to this first ground, we entirely accept the submissions of Mr Swanson.  A Tribunal does not have to dot every “i” and cross every “t” when dealing with the evidence.  It is entitled to come to a conclusion as to comparability and express broadly why it regards two people as being in materially similar circumstances; this Tribunal did just that.  What essentially was comparable about the positions of Ms Qousar and the Claimant was that they had both held appointments as teaching assistants prior to September 2006, they had both been appointed as family support workers in September 2006, and neither had formerly worked in that position.  They were thus in positions that the Tribunal was entitled, it being a judgement for the Tribunal, to conclude were comparable for the purposes of determining discrimination.

12.	We should add that it was observed by HHJ Peter Clark when granting permission for this appeal to be heard that paragraph 113, which we have cited above, might explain why the two women were treated differently.  It set out what might have been regarded as a difference in their situations that might materially have been a significant difference.  However, Mr Beever’s grounds of appeal did not focus at all upon that as a distinction.  When his argument briefly strayed onto the point, he freely and properly accepted that it was not a point he could take before this Tribunal, since no argument of the sort had been addressed to the Employment Tribunal below.  Accordingly, we did not have to determine the case upon that basis.

13.	It follows that we conclude that the Tribunal was entitled to come to the conclusion it did that these two women, the Claimant and Ms Qousar, were in similar relevant circumstances.

The appeal – ground 2
14.	The second ground raises more difficult issues.  Mr Beever argues that the Tribunal erred in law in its approach to determining when the burden of proof should shift.  He argues that it was succinctly put by Mummery LJ in Madarassy, as cited by Slade J in Mwitta at paragraph 66, that:

“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.”

15.	He argues that at paragraph 115 the Tribunal had therefore, and correctly, looked for “something more” than a difference of race and a difference of treatment.  He submits, however, that however it is dressed up and elaborated upon, there was no more in their findings and they never identified the “something more” to which the referred in paragraph 115.  Thus paragraph 116 began with the words, “We have found that both women were in similar circumstances”, and it dealt with that.  Paragraph 117 began with there being a difference in status between the two women – one black British, one Asian – and less favourable treatment, and then an elaboration of that, such that in paragraph 118 less favourable treatment was concluded and at 119, as though it followed, “the burden of proof shifts to the respondent for an explanation as to why this happened”.  This, therefore, looked at by looking at the broad basic structure of the Judgment, was saying no more than that which is recognised in case law, of which Mwitta is a recent example, to be insufficient, namely a difference in race and a difference in treatment to the detriment of the complainant.

16.	For the Claimant, Mr Swanson argues that there is something more that is identified.  That is because in paragraph 117 reference is made to an explanation put forward to the Tribunal by Mrs Semlali; that was that she had administration problems and therefore the Claimant had not been given a contract.  The Tribunal had observed that that finding of fact was not consistent.  In the same paragraph it referred to a second explanation: that Mrs Semlali wanted to protect the Claimant as the funding for FSW was limited, but the Tribunal had found that that “did not stand up to examination”.  What he might have said was a third explanation is contained in paragraph 119.  Mrs Semlali again gave the evidence.  She understood that Ms Qousar got the permanent job (and it must follow that the Claimant did not) because Ms Qousar asked for it and had relevant experience.  Thus, he submits, three reasons were put forward; that last was not determined, because there was no sufficient evidence of it, but the findings of fact in paragraph 117 were rejected by the Tribunal.

Discussion – Ground 2
17.	The process, logically, that section 54A of the RRA 1976 requires of a Tribunal is somewhat artificial.  It requires a two‑stage approach in logic, which is not usually reflected in the way in which evidence is received by the Tribunal.  Though the analysis must be in two parts, the evidence comes in one bit.  In a reflection of that factual circumstance Elias J, as President of the Appeal Tribunal, had held in Laing v Manchester City Council [2006] ICR 1519 that a Tribunal in drawing the inferences that it might have to draw could legitimately consider, and should legitimately consider, all the evidence put before it prior to concluding whether the burden of proof had shifted so as to require an explanation from the employer that the acts complained of had in no way been taken on the ground of race, and cogently establishing that.  He drew a distinction between facts – that is, evidence – on the one hand and explanation on the other.  He noted that a Tribunal did not necessarily fall into error merely because it failed to adopt a two‑stage approach, though (see paragraph 73) no doubt in most cases it would be sensible for a Tribunal formally to analyse a case by reference to those two stages.  He reminded Tribunals that the focus of their analysis must at all times be the question of whether or not they can properly and fairly infer race discrimination.

18.	His decision, broadly, was endorsed by the Court of Appeal in Madarassy.  In the course of his leading Judgment Mummery LJ dealt with the words in the Sex Discrimination Act, which that case concerned, that are the equivalent of the words “could […] conclude” in section 54A of the RRA at paragraph 57.  He said that those words must mean:

“[…] that ‘a reasonable tribunal could properly conclude’ from all the evidence before it.  This will include evidence adduced by the complainant in support of the allegations of [in that case] sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment.”

19.	I draw attention to those last seven words.  He went on:

“It would also include evidence adduced by the respondent contesting the complaint.  Subject only to the statutory ‘absence of an adequate explanation’ at this stage (which I shall discuss later), the tribunal would need to consider all the evidence relevant to the discrimination complaint; for example, evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the complainant were of like with like as required by section 5(3) of the 1975 Act; and available evidence of the reasons for the differential treatment.”

20.	And I draw attention to those last words too.  He went on to say:

“58. The absence of an adequate explanation for differential treatment of the complainant is not, however, relevant to whether there is a prima facie case of discrimination by the respondent.”

21.	As he had promised in paragraph 57, he returned to the question of the meaning of the words “in the absence of an adequate explanation”.  He began by referring back to the earlier Court of Appeal decision of Igen v Wong [2005] ICR 991 at paragraph 22, where it had held that that expression indicates that in considering what inferences or conclusions could be drawn from the primary facts at stage 1, the Employment Tribunal is required to make an assumption:

“[…] which may be contrary to reality, the plain purpose being to shift the burden of proof at the second stage, so that unless the respondent provides an adequate explanation, the complainant will succeed.  It will be inconsistent with that assumption to take account of an adequate explanation by the respondent at the first stage.”

22.	He went on to observe (paragraph 69) that the only factor that section 63A(2) – that is, the equivalent in the 1975 Act to section 54A in the 1976 Act – stipulates shall not form part of the material from which inferences may be drawn at the first stage is “the absence of an adequate explanation from the respondent”.  He observed that the section did not expressly or impliedly prevent the Tribunal at the first stage from hearing, accepting or drawing inferences from evidence adduced by the Respondent disputing and rebutting the complainant’s evidence of discrimination.  He commented (paragraph 71) that the Respondent might adduce evidence at the first stage to show that the acts that were alleged to be discriminatory never happened:

“[…] or that, if they did, they were not less favourable treatment of the complainant; or that the comparators chosen by the complainant or the situations with which comparisons are made are not truly like the complainant or the situation of the complainant; or that, even if there has been less favourable treatment of the complainant, it was not on the ground of her sex or pregnancy.”

23.	Those last words of course relate to the reason why the treatment occurs.

24.	Finally, and relevantly, at paragraph 78, despite his general acceptance of Laing, he added that he did not think there was much to be gained by invoking or analysing possible distinctions between “explanations”, “reasons” and “facts”.

25.	It seems to us that two issues arise for our determination.  The first is whether as a matter of law Mr Beever is correct in his submission that whatever the explanations advanced for the treatment of the Claimant and however inadequate or wrong they might be, the Tribunal could not simply upon the basis of the difference in race and status coupled with the inadequacies of the excuses proffered regard the burden of proof as shifting.  If he is right in that submission, then the appeal must succeed and the claim must be dismissed.  If he is wrong in that submission, we have to ask whether the Tribunal by asking for “something more” identified that which Mr Swanson submits they did: that there had here been a number of rejected explanations put forward for consideration.  We approach this question by remembering that the purpose of the provisions is to identify a proper claim of discrimination, recognising that it is highly unlikely in the real world that there will be any clear evidence that that has occurred.  The inference will have to be drawn if a claim for discrimination is to succeed at all.  Though a difference in race and a difference in treatment to the disadvantage of the complainant is insufficient and something more is required, Mr Beever was prepared to accept that where as part of the history that the Tribunal was examining an employer had at the time of the alleged discriminatory treatment given an explanation for it which a Tribunal was later to conclude was a lie, that might, coupled with the difference in race and treatment, justify a reversal of the burden of proof.  We agree.

26.	What is more problematic is the situation where there is an explanation that is not necessarily found expressly to be a lie but which is rejected as opposed to being one that is simply not regarded as sufficiently adequate.  Realistically, it seems to us that, in any case in which an employer justifies treatment that has a differential effect as between a person of one race and a person or persons of another by putting forward a number of inconsistent explanations which are disbelieved (as opposed to not being fully accepted), there is sufficient to justify a shift of the burden of proof.  Exactly that evidential position would have arisen in the days in which King v Great Britain‑China Centre [1992] ICR 516 was the leading authority in relation to the approach a Tribunal should take to claims of discrimination.  Although a Tribunal must by statute ignore whether there is any adequate explanation in stage one of its logical analysis of the facts, that does not mean, in our view, to say that it can and should ignore an explanation that is frankly inadequate and in particular one that is disbelieved.

27.	Mr Beever submitted, with some force, that if an explanation was simply inadequate, then that on its own would not, coupled with the difference in status and treatment, be sufficient to shift the burden of proof.  We do not need to decide for present purposes whether he is right in that submission, because it is not this case; nor are we helped by his reference to the facts of Mwitta, not least because (see paragraph 52) the Employment Tribunal did not disbelieve a witness as to his reasons but merely thought that another conclusion would have been “more logical”.  To prefer one conclusion rather than another is not, as it seems to us, the same as rejecting a reason put as being simply wrong.  In essence, the Tribunal in the present case appeared not to believe at least two of the explanations that were being advanced to it, and there were, we accept from what Mr Swanson has said, some three inconsistent explanations put forward for the difference in treatment that constituted the alleged discriminatory conduct.

28.	Accordingly, we cannot say that the error in approach that may be identified from paragraph 115 would necessarily have the conclusion here that the Respondents would inevitably succeed.  In paragraph 115 the Tribunal said that it had looked during the first stage of its analysis at the explanation for the treatment given by the Respondents.  When those words were compared with the quote from Igen in the Judgment of Mummery LJ in Madarassy, Mr Swanson was prepared to concede that there might be an error of approach.  He urged us to consider, however, that perhaps what the Tribunal was saying was that it had regard to the inadequate or rejected explanations given by the Respondents that, as we have indicated, may in proper circumstances and upon a proper evaluation of what inferences to draw, would be sufficient for a Tribunal to regard the burden of proof as having shifted.

29.	We turn, then, to the second of the two points that we have regarded as important: did the Tribunal here actually identify what it regarded as “something more”?  Viewed broadly, as an Employment Tribunal Judgment generally should be, the pattern of the paragraphs is compelling toward a conclusion that the Tribunal did no more than identify a difference in race and a difference in treatment and think at paragraph 119 that it required an explanation capable of satisfying the burden of proof from the employer as to that.  We are persuaded that that is the basic pattern of these paragraphs, as Mr Beever has submitted.  However, taking the Judgment as a whole, we also ask what the purpose is in paragraph 117 of making reference in context to the explanations that were advanced.  We can see that they may simply be historical.  The Tribunal does not say words to the effect of, “this is the ‘something more’”.  What the Tribunal says is insufficiently clear, as it seems to us, to be sure that by the words it used, particularly given the general format of this part of its decision, that it had in mind that a reason additional to difference in status and treatment for concluding it could have found there was discrimination was the fact that several inconsistent and rejected explanations had been put forward for the treatment, the inference then being that the real reason was something that the employer would wish to keep hidden, and that in the circumstances would lead naturally to an inference that it might be race.

30.	A further problem arises in paragraph 120.  The conclusion there was not that the Claimant was directly discriminated against by Mrs Semlali, although she was the Second Respondent, but that the governing body had directly discriminated against the Claimant on the grounds of her race; but paragraph 119 is to the effect that the Tribunal simply did not know what the reasons were for the governing body acting as it did.  Mrs Semlali, it says, was not in a position to say; she was not at the meeting at which the decision was taken.  Therefore, so far as the governing body was concerned, which is the body against which the finding was made, there was on this analysis no more than a difference in status and a difference in treatment, which would be insufficient.

31.	We have come to the conclusion that the Tribunal, broadly, had identified that the Claimant was treated badly by comparison with someone of a different race and that explanations had been put forward for her treatment which were not accepted.  The question of what inference to draw from those facts is one for the Tribunal.  It seems to us that the Tribunal may not properly have addressed its mind to the law; hence there may be an error in paragraph 115.  It might have meant to say, but did not clearly do so, that it was the inadequacies of explanations that it rejected that made the difference, but there is no analysis of that nor full explanation of why that might be so and that that was what the Tribunal was doing.

Conclusion
32.	In all those circumstances, we have concluded that this Judgment cannot stand.  The failings of the Tribunal in the way in which it dealt with the law and facts between paragraphs 110 and 120 are such that we cannot be sure whether this Tribunal approached the matter upon a permissible or impermissible basis of law.  The conclusion therefore must be that this appeal is allowed on the second ground, the first being rejected, and the case remitted to an Employment Tribunal for determination in accordance with our Judgment on the law.  We shall hear the parties as to the scope of that remission.

Disposal
33.	Neither party suggests that the case should be remitted to a different Tribunal; we agree.  The Tribunal must have in mind the law as we have stated it in this Judgment.  It will be open to the parties to make whatever submissions they think appropriate in respect of that law and in respect of any inferences that are properly to be drawn from the primary facts.  The Tribunal is to consider those submissions in the light of the evidence that it has already heard: we see no need in this case, being a fairly recent decision and one taken at some length over some seven days, for any further evidence to be heard.  Having considered those submissions, the Tribunal will set out its conclusions as to this particular issue, the issue being the assertion:

“That the Claimant was assured by Mr Knight she had been in the role of family support worker, she was given no contract and was informed that the role was not permanent but a secondment.”

34.	As Mr Beever has observed, that will focus upon the issue of the permanent contract to the comparator and on the events of June 2007 when the Claimant was told that she was seconded and not herself permanent.