“It was confrontational and it felt as though there was a culprit to be found and blame was going to be apportioned and hands were going to be chopped off.”
“Those investigating the complaint should not be connected with the allegation in any way.”
“So do we have peace, will you work with me and put last week behind us or not?”
“The cooling off between them that followed was due to his belief, well-founded as events transpired, that Kamlesh Bahl could damage both the Law Society and his position as President by her behaviour.”
“Evelynne, you write nice letters, you write it.”
“We regret that we have been driven to the conclusion that the Vice-President resorted at times to bullying tactics. She treated the staff without due consideration demanding immediate response to her own wishes without regard to their other duties. Her treatment of staff was at times demeaning and humiliating and at other times offensively aggressive. In many ways, she usurped the Secretary-General’s role as head of staff and introduced an atmosphere of fear and confusion in the line of command.”
“Understandably Mrs. Betts resented this.”
“Where there is an obvious explanation for treatment, then the tribunal ought to indicate in its reasoning that it has recognised that fact, and it should set out those considerations which have led it to the conclusion either that other discriminatory considerations have wholly displaced the obvious explanation, or at least have justified the conclusion that the obvious explanation is not the only explanation and that race or sex considerations have also played a part in the decision.”
“239. For all these reasons we consider that the tribunal has in a number of ways approached the issue of discrimination, both in relation to Mr Sayer and Mrs Betts, in an incorrect way. It has failed to take account of the obvious explanation for any detrimental treatment. Both Mr Sayer and Mrs Betts, for their own distinct and separate reasons, had reason to feel hostile toward Dr. Bahl. On occasions they have allowed their personal animosity towards Dr Bahl to distract them from their duty to act objectively and fairly towards her. But that is a far cry from establishing the very serious allegation that they have discriminated on grounds of race and sex. In addition, the tribunal has made findings of discrimination where no proper evidential basis for it exists; and it has inferred in some cases that unfair and unreasonable treatment alone is evidence of discrimination. 240. We do not think that the tribunal has in truth stepped back to consider the implications of its conclusions, notwithstanding that it has expressly stated that it looked at the totality of the matter. Of course, it is possible that someone may discriminate in relation to a particular disciplinary process in certain respects but not in others. But if there is unconscious discrimination operating, one would not expect it to surface in such an apparently arbitrary and piecemeal way. The tribunal has not considered why these discriminatory motives would have influenced some decisions but not others.”
“We recognise that Dr. Bahl feels aggrieved by aspects of her treatment. She is obviously a woman of exceptional skills and talents which, effectively harnessed, could make a significant contribution to any organisation. She may with some justification feel that neither Mr Sayer nor Mrs Betts gave her the support they might have done and arguably ought to have done. They - and particularly Mrs Betts - became actively involved in seeking to prosecute the case against her and indeed ultimately Mrs Betts herself formally complained about Dr Bahl’s conduct. Mrs Betts had understandably been upset by Dr. Bahl’s behaviour and its effect on her staff, and felt her position being undermined. As a consequence, as the tribunal’s decision shows, she did not at all times maintain the professional detachment that her position required. We are, however, satisfied that there is no proper basis for concluding that she was treating Dr. Bahl less favourably because of Dr. Bahl’s race or sex. Similarly, there is even less justification in the light of the evidence for imputing such improper discriminatory conduct to Mr Sayer.”
“(3) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal…. (4) Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances, the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds…. (5) It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts.”
“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. The fact that, for the purposes of the law of unfair dismissal, an employer has acted unreasonably casts no light whatsoever on the question whether he has treated the employee ‘less favourably’ for the purposes of the Act of 1976.”
“It cannot be inferred, let alone presumed, only from the fact that an employer has acted unreasonably towards one employee that he would have acted reasonably if he had been dealing with another in the same circumstances.”
“ As Neill LJ pointed out in King…., such hostility [i.e. unreasonableness] may justify an inference of racial bias if there is nothing else to explain it: whether there is such an explanation…..will depend not on a theoretical possibility that the employer behaves equally badly to employees of all races but on evidence that he does.”
“Were it so, the employer could never do so where the situation he was dealing with was a novel one, as in this case.”
“The inference may also be rebutted – and indeed this will, we suspect, be far more common – by the employer leading evidence of a genuine reason which is not discriminatory and which was the ground of his conduct. Employers will often have unjustified albeit genuine reasons for acting as they have. If these are accepted and show no discrimination, there is generally no basis for the inference of unlawful discrimination to be made. Even if they are not accepted, the tribunal’s own findings of fact may identify an obvious reason for the treatment in issue, other than a discriminatory reason.”
“Thus the less favourable treatment issue is treated as a threshold which the claimant must cross before the tribunal is called upon to decide why the claimant was afforded the treatment of which she is complaining. No doubt there are cases where it is convenient and helpful to adopt this two step approach to what is essentially a single question: did the claimant, on the proscribed ground, receive less favourable treatment than others? But, especially where the identity of the relevant comparator is a matter of dispute, this sequential analysis may give rise to needless problems. Sometimes the less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue. The two issues are intertwined.”
“….employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was. Was it on the proscribed ground which is the foundation of the application? That will call for an examination of all the facts of the case. Or was it for some other reason? If the latter, the application fails. If the former, there will be usually no difficulty in deciding whether the treatment, afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others.”
“….the complainant is entitled to complain to the Tribunal that a person has committed an unlawful act of discrimination, but it is the act of which complaint is made and no other that the Tribunal must consider and rule upon…. If the act of which complaint is made is found not to be proven, it is not for the Tribunal to find another act of racial discrimination of which complaint has not been made to give a remedy in respect of that other act.”
“Understandably, Jane Betts resented this.”
“There was a further tirade from Kamlesh to me in the ladies’ toilets at the Bournemouth conference on the subject of Andrew Hall. I was embarrassed but also fascinated by her self-control. Once she had got her way she went back to quite girlish charming chatter ….”
“In my judgment, it is quite impossible, looking at the detailed findings as a whole, to find a decisive pointer towards a racially discriminatory attitude. It is impossible to find in the judgment of the Employment Tribunal any reason why they drew the inference they did from the facts they found. Bingham LJ stated in Meek[v City of Birmingham Council[1987] IRLR 250 ] that a party before an employment tribunal is entitled to know why it lost. The respondents in this case have no sufficient indication of that from the judgment of the Employment Tribunal. In the absence of reasoning, there is a real danger that the inference has been wrongly drawn.”
“We do not distinguish between the race or sex of the Applicant in reaching this conclusion. Our reason for that is simple. The claim was advanced on the basis that Kamlesh Bahl was treated in the way she was because she is a black woman. Kamlesh Bahl was the first office holder that the Law Society had ever had who was not both white and male. There was no basis in the evidence for comparing her treatment with that of a white female, or a black male, office holder. We can only draw inferences. We do not know what was in the minds of Robert Sayer and Jane Betts at any particular point. It is sufficient for our purposes to find, where appropriate, that in each case they would not have treated a white person or a man less favourably. If we need to refine our approach for the purposes of dealing with remedy the parties may address this issue at that stage.”
“There is something quite unrealistic, in our view, in concluding that either Mrs Betts or Mr Sayer, in not appreciating that they should remove themselves from a panel whose decision seemed both wholly uncontroversial and, indeed, inevitable, would have been influenced by unconscious race or sex considerations.”
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