London Borough of Ealing v Rihal [2004] EWCA Civ 623

Case No A1/2003/2111 EATRF[2004] EWCA Civ 623
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
EAT/0987/01/SM
Venue Royal Courts of JusticeDate Friday 21 st May 2004
Strand,
London, WC2A 2LL
Before
LORD JUSTICE AULDLORD JUSTICE SEDLEYLORD JUSTICE KEENE
Between
London Borough of EalingAppellantMr Lakhbir RihalRespondent
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Harjit Grewal (instructed by Corporate Resources Legal Service) for AppellantCatherine Rayner (instructed by Thompsons, London, WC1B 3LW.) for Respondent
Judgment
[1]This is an employer’s appeal against a decision of the Employment Appeal Tribunal (“EAT”) dated 11 September 2003, whereby the EAT dismissed an appeal by the employer, the London Borough of Ealing (“Ealing”) against a decision of an Employment Tribunal sitting at Watford. That latter tribunal had upheld complaints by Mr Rihal that he had been directly discriminated against by Ealing on racial grounds while an employee. B. THE FACTS[2]Mr Rihal is a Sikh born in India but resident for many years in the United Kingdom. He described himself during the proceedings as having a pronounced accent. He began working for Ealing in 1988, being employed as a surveyor in the Housing Department. His complaints concerned a period beginning in 1996 and ending in July 2000. On a preliminary point about the time limit for presenting a complaint under the Race Relations Act 1976 (“the Act”), the Employment Tribunal took the view that the complaints related to a continuing course of conduct and were therefore brought in time. A challenge to that conclusion was rejected by the EAT and no appeal is brought on that issue. I mention it because it is of relevance to the approach adopted to the various individual complaints raised by Mr Rihal. The Employment Tribunal early in its Extended Reasons identified the underlying complaint as being that there was a “glass ceiling” in the Housing Department at Ealing, that is to say a barrier which made it very difficult for those who were not white to attain senior management posts. The Tribunal found as a fact that there was indeed such a “glass ceiling” in the Housing Department and the grounds of appeal to this court do not assert that that was a perverse finding. The staff audit figures show it to be well-founded.[3]The history of the present matter is set out in detail in the Extended Reasons of the EAT at paragraphs 4 to 13 inclusive and that makes it unnecessary for me to do more than summarise the principal facts. By 1992 Mr Rihal was one of two senior surveyors in the Central Technical Team of the Housing Department. The other senior surveyor was Mr Relf, who was white and British by birth. He and Mr Rihal were, the Employment Tribunal found, equally qualified. The Central Technical Team was divided into three departments: Mechanical and Electrical, Planned Maintenance, and Capital Programmes. Each of those was concerned with different types of building work on properties owned by Ealing. At that time the Head of the Central Technical Team was a Ms Herman, who also headed one of the sub-divisions, Capital Programmes. The other two were headed by a Mr Smith and a Mr Rose. When Mr Rose retired in 1992, he was not formally replaced. Instead Mr Relf “acted up” in Mr Rose’s position as Head of Planned Maintenance and reported direct to Ms Herman.[4]For a period of time Mr Rihal worked in the area office at Acton, but he returned to the Central Technical Team in March 1996. The Tribunal expressly found that, while at Acton and on return to the Central Technical Team, Mr Rihal was equal in terms of responsibility, capability and potential to Mr Relf and Mr Smith. It will be remembered that Mr Smith was Head of the Mechanical and Electrical sub-division, reporting like Mr Relf direct to Ms Herman.[5]Then in May 1996 Mr Relf retired as, in effect, the Head of the Planned Maintenance sub-division. He was not replaced and Mr Rihal, who was as well qualified as Mr Relf, was not promoted to that position. Instead the post was deleted. Mr Dicks, a white employee junior to Mr Rihal, was raised to his level and the responsibilities and work previously dealt with by Mr Relf were shared between Mr Rihal and Mr Dicks. Those responsibilities were divided into pre-contract and post-contract work. The Tribunal found that Mr Rihal was being joined on an equal level by someone inferior in grade, qualifications and experience.[6]In September 1996 Ms Herman retired and her position as Head of the Central Technical Team was taken over by Mr Foxall who was white. Her position as the Head of the Capital Programmes sub-division was taken on an acting-up basis by a Mr Gaffikin, who was white and who the Tribunal found was on a grade no higher than and who had fewer qualifications and less experience than Mr Rihal. Thus, the Tribunal concluded, Mr Rihal had been joined in level by Mr Dicks and had been overtaken by Mr Gaffikin, although both were of lesser qualifications and experience and were on a lower or the same grade. In the autumn of 1996 both Mr Dicks and Mr Rihal complained to Mr Foxall that the demarcation between pre-contract and post-contract work was unsuccessful and causing practical problems. The situation demanded urgent attention, but Mr Foxall left the system established by Ms Herman earlier that year in place.[7]Then as a result of a report by consultants in late 1997, the Central Technical Team was reorganised and renamed the Housing Investment Team. Mr Foxall was the Head of it. Below him there was to be a new single post of Housing Investment Manager. Below that there were to be two new posts, called Programmes Delivery Manager and Investment, Planning and Standards Manager. As a result of agreements reached with the relevant trade unions, a process called “assimilation” was used first to fill the posts in the new structure. I shall come back to this process later in this judgment, but in essence it was one whereby it was sought to establish whether an existing employee’s post matched sufficiently closely a new post. If it did, he or she was entitled to the new post, unless more than one person qualified on this basis, in which case there would be competitive interviews.[8]Mr Rihal applied to assimilate to the post of Housing Investment Manager and to the two posts below that of Programme Delivery Manager and Investment Planning and Standards Manager, but his applications failed. The Tribunal found that, although he had been aiming high in seeking the post of Housing Investment Manager, the post below it of Investment Planning and Standards Manager was well within his grasp. These events took place in 1998.[9]The remaining part of the history can be taken from the EAT’s judgment, at paragraphs 11 and 13:
“11 In February 1999 Mr Rihal again applied for the post of Investment Planning and Standards Manager; in a contest with Mr Gaffikin for that post, he lost. The Tribunal found that Mr Gaffikin was not as well qualified as Mr Rihal and that, if he had greater experience at a higher level, that was because he had been permitted to act-up after Ms Herman’s retirement. The dynamic on the interview panel, the Tribunal found, came from Mr Foxall (paragraph 40); and Mr Rihal in his interview was not but Mr Gaffikin in his interview was given the opportunity to demonstrate his capability and to shine (paragraph 41). 13 Having failed to obtain the post of Investment Planning and Standards Manager, Mr Rihal complained through Ealing’s grievance procedure. Mr Dallison was supposed to deal with the grievance, but he did not reply to Mr Rihal’s letter of complaint for over fourteen months. The Tribunal concluded that Mr Dallison realised that there was a racial element to Mr Rihal’s complaint, that he wanted to keep a lid on it and hoped it would go away because he was, consciously or at a subconscious level, afraid of what he might find if he looked into the complaint with vigour and that if a white employee had complained Mr Dallison would have delegated the complaint to Human Resources or dealt with it quickly. ”
C. THE EMPLOYMENT TRIBUNAL’S DECISION[10]One of Mr Rihal’s complaints of discrimination (complaint (c)) was abandoned during the Tribunal hearing. There were six remaining complaints, and for convenience I keep the EAT’s original lettering of them:(a) His not being appointed to “act-up” in May 1996 on the retirement of Mr Relf;(b) The allocation of duties to him on an interim basis in or before November 1996; (d) His failure to be assimilated to the post of Programme Delivery Manager in 1998; (e) His failure to be assimilated to the post of Investment Planning and Standards Manager in 1998; (f) His failure to be appointed to the post of Investment Planning and Standards Manager in February 1999; (g) The manner in which his grievance was dealt with by Mr Dallison.[11]The Employment Tribunal reminded itself in its decision of a number of the leading cases on discrimination law and the principles to be derived from them, including King –v- The Great Britain China Centre [1991] IRLR 513, West Midlands Passenger Transport Executive –v- Singh [1988] IRLR 186, Zafar –v- Glasgow City Council [1998] IRLR 36, Qureshi –v- London Borough of Newham [1991] IRLR 264, Chapman –v- Simon [1994] IRLR273, and Anya –v- University of Oxford [2001] IRLR 371.

(a) :

“A person discriminates against another in any circumstances relevant for the purposes of this Act if (a) on racial grounds he treats that other less favourably than he treats or would treat other persons.”
In referring to Zafar it repeated the need to decide whether the applicant had been treated by the alleged discriminator “less favourably” than that person treats or would have treated another.

(d) :

“It cannot be inferred 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.”
There can be little doubt that the Tribunal had the necessity of applying the less favourable treatment test firmly in mind in arriving at its decision on the individual complaints.[12]So far as complaint (a) was concerned, that is to say the non-appointment of Mr Rihal to act-up in May 1996 on the retirement of Mr Relf as de facto Head of Planned Maintenance in the old organisational structure, the Tribunal found that there was a clear difference in treatment and a difference in race. No real explanation for the difference in treatment had been forthcoming from Ealing. It concluded that racial grounds had played a significant part in that decision. This conclusion was challenged, unsuccessfully, before the EAT but it is not challenged before us. Nonetheless I mention it because it is a relevant part of the whole picture and indeed is entangled with complaint (b), which is part of the subject-matter of this appeal.[13]Complaint (b) concerned the allocation of duties to Mr Rihal up to November 1996, under which arrangement he shared with Mr Dicks the duties previously carried out by Mr Relf. The Employment Tribunal concluded that this situation, in which Mr Rihal remained at a comparatively low level of responsibility, was one put in place by Ms Herman and perpetuated by Mr Foxall when he succeeded her in September 1996 as Head of the Central Technical Team. As the EAT said, this head of complaint was really directed at the period between May and November 1996, during which Mr Rihal was having to share responsibilities with someone, Mr Dicks, to whom he was superior in payment grade, qualifications and experience, according to the Employment Tribunal’s findings. It also recorded that in September 1996, after Ms Herman’s departure, her other post as head of the Capital Programmes sub-division was filled on secondment by Mr Gaffikin, a white employee with fewer qualifications and less experience than Mr Rihal. The Tribunal saw these events as showing a difference in treatment and could identify no explanation for them other than the inferred one of racial difference.[14]Complaints (d) and (e) were dealt with by the Employment Tribunal together, involving as they both did the assimilation process as part of the re-organisation in 1998. The Tribunal noted that the process of matching new and existing job descriptions was complicated by the fact that the existing job descriptions often did not bear more than a passing resemblance to what the individual was actually doing. Moreover, in awarding marks to applicants in respect of their existing jobs, Mr Foxall as Head of the new team had to exercise a judgment on the extent to which an existing job matched in a particular characteristic the new post. Therefore, commented the Tribunal, there was a subjectivity in Mr Foxall’s marking.[15]It went on to say this about the assimilation process:
“36. Many people fared badly in the assimilation process and again in isolation it would be impossible to conclude that there were any racial grounds for that having occurred. The relevance is the insight in to the way Mr Foxall was thinking about the various employees, and especially the Applicant. There was a particularly telling part of his evidence in which he was describing why the Applicant had been given a relatively poor mark in respect of his application to assimilate to the post of Investing Planning and Standards Manager. Mr Foxall talked about the fact that although there was on the face of it a reasonably close match between what the Applicant was in fact doing and the various job items in the description for the Investing Planning and Standards Manager, there was a difference in “scope and level”
. Upon further enquiry we discovered what he meant. To take one example (and we could take many more) item 8 on the job specification profile read “responsible for researching setting negotiating over and driving forward technical standards”. The maximum marks were ten. Initially the Applicant scored zero. After comments to Mr Foxall he was given the mark 2. In a letter of explanation dated 26 August 1998 page 240 in the bundle, Mr Foxall said “the role envisaged is about setting technical standards across the entire department and for all elements”. That is a matter of “scope”. Items 10 and 11 are respectively:
“Ambassadorial/PR role with a variety of internal stakeholders” (maximum score 5, Applicant scores 2). “Promotional and Negotiating role with a variety of external stakeholders” (maximum score 4, Applicant scores nil). In his letter of explanation Mr Foxall says at page 341: I have given the score 2 as I feel this represents your Ambassadorial role as described. The scope of the post envisages extensive consultation with all external stakeholders at a constant strategic level”. and “The post holder will be negotiating with external stakeholders over funding options partnership agreements etc. I do not believe that the duties you have outlined encompass this”
. This is a matter of “level” 37. Mr Foxall was effectively saying that he did not think the Applicant would “fit in” to a role of wider and higher responsibility involving negotiating and adopting a PR role with internal and external “stakeholders”. Stakeholders are nothing more than people who have an interest in the contract. Mr Foxall explained for example that the Applicant would have to talk to politicians and organisations of business people about partnership funding. Mr Foxall was saying at this stage, very emphatically and with great conviction on his own part, that he was not assessing the Applicant’s capability to do this but rather simply whether or not he had been doing it. Quite simply no body had been doing it at the scope and level of the new jobs for the very simple reason that they were new jobs with no direct counter part in the old system. The Respondents were unable to produce to us comparative markings of other people. It would have been interesting to see how for example Mr Gaffikin was assessed. But for the lengthy period of time which had elapsed which made it acceptable that the Respondents could not find these comparative scores we would have drawn adverse inferences from their failure to do so. But we do not in this case. We do find as a fact that although Mr Foxall said he was not thinking in terms of the Applicant’s capability or potential he was, at some level of consciousness, doing exactly that. In essence when he was doing the assimilation process Mr Foxall in our judgement had a picture in his mind of those members of his existing staff who would “fit in” at the various levels in the new structure. The Applicant did not in Mr Foxall’s mind “fit into” those posts. The Respondent’s case throughout was that the various process for career progression had “a mind of their own” (our phrase). As Sedley L.J. said in Anya “discrimination” in the non-legal sense involves making choices. In the context of direct discrimination, people rather than processes make choices. If no person makes a choice, it cannot be on racial grounds, or on any ground. However, in this case, we find that at every stage people did make choices. Mr Foxall, and Ms Herman before him, made choices. Was the Applicant to be allowed to “act up” to a higher post or not? How many points was he given between maximum and minimum in the assimilation process? Every time the answer was to the Applicant’s disadvantage.” In his letter of explanation Mr Foxall says at page 341: and

This is a matter of “level”

[16]The Tribunal then turned to the 1999 application by Mr Rihal to be appointed to the post of Investment Planning and Standards Manager, a post which it described as well within his grasp. This related to complaint (f). It noted that before applying for the post, Mr Rihal had had a conversation with Mr Dicks, who wanted him to help out with some tasks. Mr Rihal was willing but Mr Foxall was not. Mr Dicks’ evidence, accepted by the Tribunal, was that when he put it to Mr Foxall that:
“… if Mr Rihal was not allowed to help him the only alternative would be delay in the completion of the contracts, Mr Foxall’s reply was “delay the contracts”
. When Mr Dicks asked why, Mr Foxall’s reply was “he (Mr Rihal) is pending an appeal on a job evaluation and I don’t want to give him the ammunition”.” The Tribunal observed that the more experience and responsibility one has, the better one is likely to do in any competitive interview process and that Mr Foxhall’s decision must have worked to Mr Rihal’s disadvantage.[17]The Tribunal went on to say this at paragraph 40; “At an interview on 18 February 1999 the Applicant, in a straight contest for the post of Investment Planning and Standards Manager, lost to Peter Gaffikin who was white. Mr Gaffikin was not as well qualified. To the extent that he had greater experience that was because he had been allowed to act up on the retirement of Ms Herman.”[18]Mr Foxall’s evidence was that in relation to the experience issue, Mr Gaffikin’s experience on the planning of Capital Programme expenditure was directly related to the post in question. The Tribunal commented:
“During the course of the interview Mr Rihal’s complaint, which we accept as true and valid was that the questions by the interview panel was such that Mr Gaffikin was given the opportunity to demonstrate his capabilities and “shine” whereas the Applicant did not have that opportunity. Therefore, when we look at the situation as a whole, and do not do what all of the Respondents Witnesses have done which is to break up the history into little pieces none of which individually give a full picture, what we see is that during the re-organisation process which commenced in early 1998 and continued through to February 1999 the Applicant failed not only to be assimilated to posts but failed to be successful at interviews, in the same circumstances where white people were successful.”
[19]It observed that all the new senior management posts in the new structure of the Department were held by white people, as were the senior positions in the four Area Housing Offices. This contrasted with other Departments of Ealing, where 25 per cent of those on the senior management boards were not white. It was in part this analysis, together with the experience of Mr Rihal and another non-white employee, which led the Tribunal to its finding, to which I have already referred, that a “glass ceiling” existed in Ealing’s Housing Department. The Tribunal concluded that in relation to complaint (f), Mr Rihal succeeded. Racial grounds did play a significant part in the decision.[20]In respect of the final complaint, that concerning the delay in dealing with Mr Rihal’s grievance that he had been unfairly treated, the Tribunal concluded that there had been a huge delay in dealing with it. This was due to the fact that Mr Dallison realised from the outset that there was a racial element to the complaint and he hoped that it would go away. The Tribunal commented as follows:
“We think Mr Dallison was on a conscious or subconscious level afraid of what he might find if he looked into this matter with vigour and in that respect there was a racial ground to his decision to pursue the complaint so tardily. If a white employee had complained, he would have delegated the complaint to H.R. or dealt with it quickly.”
[21]In its overall conclusion the Tribunal could find no satisfactory explanation “… for a man of Mr Rihal’s abilities to have stagnated as he has over a long period of time and ultimately to have fared so badly in comparison to his white colleagues in a re-organisation exercise. Assisted by our two positive findings that Mr Foxall expressed reservations about the Applicant’s ability to act as a PR man and his reluctance to give the Applicant in the early part of 1999 the opportunity to deal with more work which would have given him the edge perhaps during the forthcoming interviews, we conclude that racial grounds did play a significant part in all of the decisions made.” It concluded that there was “… a “force” in existence throughout that prevented Mr Foxall and others from picturing a turban wearing Sikh with a pronounced accent in the managerial roles, which a person of the Applicant’s qualification and experience could easily have achieved. He is not only adequate but excellent in his technical role in the eyes of Mr Foxall. However to reach senior management level, anyone in this area of work must have someone above them who has faith in him to manage others (especially when the person has a Diploma in Management) and deal with people outside the council. Some “force”, not ill intentioned, has prevented anyone having that faith in Mr Rihal. There being no adequate explanation to explain the less favourable treatment we conclude that “force” was a racial ground.” D. THE APPEAL[22]That decision is now challenged by Ealing. On its behalf Ms Grewal submits that the Employment Tribunal did not make adequate findings of primary fact on each of the complaints. It must do so if it is to conclude that the complainant has been less favourably treated and that this was on racial grounds. Reliance is placed on the decision of this court in Chapman –v-Simon, where Peter Gibson LJ said this at paragraph 43:
“More often racial discrimination will have to be established, if at all, as a matter of inference. It is of the greatest importance that the primary facts from which such inference is drawn are set out with clarity by the Tribunal in its fact-finding role, so that the validity of the inference can be examined. Either the facts justifying such inference exist or they do not, but only the Tribunal can say what those facts are. A mere intuitive hunch, for example, that there has been unlawful discrimination, is insufficient without facts being found to support that conclusion.”
[23]Ms Grewal contends that the Tribunal adopted too generalised an approach and drew upon matters which were not the subject of a formal complaint in order to reach a conclusion about those matters which were. It lost sight of particular issues because of the general picture.[24]Before turning to the specific criticisms directed at the Tribunal’s decisions on the individual complaints, it seems to me helpful to set out the proper approach of a Tribunal on this aspect in such a case as a matter of law. Both parties have relied on passages from the decision of the EAT in Qureshi –v- Victoria University of Manchester [2001] ICR 863, 874 – 5 which were cited with approval by this court in Anya. In Qureshi, Mummery J referred to the process of drawing inferences on the issue of racial grounds from “… all the primary facts. Those primary facts may include not only the acts which form the subject matter of the complaint but also other acts alleged by the applicant to constitute evidence pointing to a racial ground for the alleged discriminatory act or decision.” He went on to say:
“The function of the tribunal is to find the primary facts from which they will be asked to draw inferences and then for the tribunal to look at the totality of those facts (including the respondent’s explanations) in order to see whether it is legitimate to infer that the acts or decisions complained of in the originating applications were on “racial grounds”
. The fragmented approach adopted by the tribunal in this case would inevitably have the effect of diminishing any eloquence that the cumulative effect of the primary facts might have on the issue of racial grounds.”[25]I respectfully agree with that, although I believe that one qualification needs to be made. It is clear that in those passages Mummery J was dealing with what is sometimes regarded as the second issue in discrimination cases, namely whether there were racial or sexual grounds for the less favourable treatment. One sees that earlier in his judgment, where he specifically distinguished between the issue “was the applicant treated less favourably than the alleged discriminator treated or would treat other persons of a different racial group in the same, or not materially different, relevant circumstances” and the issue “if there was a difference in treatment involving persons of a different race, was that treatment on racial grounds?” There can be no doubt, and indeed it is accepted on behalf of Ealing, that when a Tribunal is dealing with that second issue it is entitled and indeed obliged to look at all the material put before it which is relevant to the determination of that issue, which may include evidence about the conduct of the alleged discriminator before or after the act about which complaint is made. One has in that context to look at the total picture.[26]But it has to be borne in mind that the division of the statutory test into the two issues identified by Mummery J is not rigid, nor is it appropriate in all cases. Lord Nicholls of Birkenhead in Shamoon –v- Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] ICR 337 at paragraph 8 pointed out that this sequential analysis may give rise to needless problems. He said:
“Sometimes the less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue. The two issues are intertwined ”
[27]He went on to state at paragraphs 11 and 12 of his speech:
“This analysis seems to me to point to the conclusion that 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 complainant 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 most convenient and appropriate way to tackle the issue arising on any discrimination application must always depend upon the nature of the issues and all the circumstances of the case. There will be cases where it is convenient to decide the less favourable treatment issue first. But, for the reason set out above, when formulating their decisions employment tribunals may find it helpful to consider whether they should postpone determining the less favourable treatment issue until after they have decided why the treatment was afforded to the claimant.”
[28]Lord Rodger of Earlsferry made a similar point at paragraph 125 when he observed that it may in certain cases be helpful to divide the single question into two parts, but that there will be other cases where the issues are so intertwined that attempting to deal with them separately may hinder rather than help.[29]This has repercussions for the evidence which may be relevant. That can be seen from a passage in the speech of Lord Scott of Foscote in Shamoon at paragraphs 109-110, when he was dealing with the topic of comparators. (Article 7 of the Order under consideration in that case was in similar terms to section 5(3) of the Sex Discrimination Act 1975 and to section 3(4) of the 1976 Act). Referring to comparators, Lord Scott commented:
“… But they are no more than tools which may or may not justify an inference of discrimination on the relevant prohibited ground, eg sex. The usefulness of the tool will, in any particular case, depend upon the extent to which the circumstances relating to the comparator are the same as the circumstances relating to the victim. The more significant the difference or differences the less cogent will be the case for drawing the requisite inference. But the fact that a particular chosen comparator cannot because of material differences, qualify as the statutory comparator, eg, under article 7, by no means disqualifies it from an evidential role. It may, in conjunction with other material justify the tribunal in drawing the inference that the victim was treated less favourably than she would have been treated if she had been the article 7 comparator. In summary, the comparator required for the purpose of the statutory definition of discrimination must be a comparator in the same position in all material respects as the victim save only that he, or she, is not a member of the protected class. But the comparators that can be of evidential value, sometimes determinative of the case, are not so circumscribed. Their evidential value will, however, be variable and will inevitably be weakened by material differences between the circumstances relating to them and the circumstances of the victim.”
[30]It must always be remembered that there does not have to be an actual comparator to satisfy the statutory test. Section 1(1) of the 1976 Act defines discrimination by a person as occurring where on racial grounds “he treats that other less favourably than he treats or wouldtreat other persons ” (emphasis added). As has long been acknowledged, the words I have emphasised enable a hypothetical comparator to be used, and in such a situation the Tribunal has to construct a picture of how such a hypothetical comparator would have been treated in comparable circumstances. In constructing that picture, the Tribunal may have to look at various events and at past acts to decide how the alleged discriminator would have acted in respect of such a hypothetical person. In short, it may have to look beyond the immediate circumstances of the incident about which complaint is made. Of course, the more dissimilar those other events and acts are from the circumstances of the incident complained of, the less evidential value they are likely to possess. Nonetheless, what this demonstrates is that it will not always be right for a Tribunal to confine such evidence of the wider picture to its consideration of the grounds on which the alleged discriminator acted, i.e. Mummery J’s second issue. That wider evidence may also be of value in determining whether the complainant has been less favourably treated than another, not of his or her race, would have been.[31]Moreover, where there are allegations of discrimination by an employer over a substantial period of time, it would be wrong for a Tribunal to treat the individual incidents complained of in isolation from one another. That would be, to use Mummery J’s words in Qureshi, a “fragmented approach” and would overlook the relevance which the wider picture may have to the decisions to be reached on those individual complaints.[32]Consequently I do not accept the criticism advanced on behalf of Ealing of the approach adopted by the Tribunal in the present case. It was entitled to consider the wider picture in determining whether racial factors were involved in the treatment of Mr Rihal and to use its conclusions on that to inform its assessment of whether in respect of each of the complaints he had been less favourably treated than a white employee in the Department in similar circumstances would have been. With that in mind, I turn to consider the submissions made in respect of the individual complaints which the Tribunal had to determine, bearing in mind that no appeal is brought as to the decision on complaint (a) about Mr Rihal not having been allowed to “act-up” in May 1996 on the retirement of Mr Relf. The fact that he was racially discriminated against on that occasion is therefore to be treated as established.[33]The treatment of Mr Rihal between May and November 1996 formed the subject-matter of complaint (b), namely the way in which he had to share Mr Relf’s former responsibilities with Mr Dick, a man to whom he was superior in both qualifications and experience. The Tribunal’s finding of racial discrimination on this complaint is criticised by Ealing but only insofar as its concerns the conduct of Mr Foxall, that is to say between September and November 1996. Again, I note that there is no challenge to the Tribunal’s finding of discrimination insofar as it relates to the period May to August 1996 inclusive. Ealing’s appeal concerns the finding on this complaint only to the extent that it relates to the involvement of Mr Foxall. It is contended by Ms Grewal that the Tribunal did not address the statutory issue arising under section 1(1)(a) of the Act, namely whether Mr Foxall would have acted differently had Mr Rihal been white and not a turban-wearing Sikh with a pronounced accent. She submits that it was not enough for the Tribunal to say that Mr Foxall “perpetuated” the situation created by Ms Herman, even though that state of affairs meant that Mr Rihal was still being treated in the way which had earlier amounted to discrimination. The Tribunal’s approach is said to be unfair to Mr Foxall.[34]I find this argument unpersuasive. This complaint by Mr Rihal related to his treatment over the whole of the period between May and November 1996, a period beginning with the decision to put him on a par with Mr Dicks, a person of fewer qualifications and less experience. His treatment for most of that period is accepted by Ealing as involving racial discrimination. What happened in September 1996 was that Mr Foxall took over from Ms Herman as Head of the Central Technical Team, but the treatment of Mr Rihal did not change. If an employer institutes an arrangement which is racially discriminatory, that arrangement does not cease to be so merely because the manager in charge changes. It seems to me that the attempt by Ealing to divide this period up into May to August and September to November is artificial and ignores the fact that it was Ealing against whom this complaint was made, not Mr Foxall. Moreover, while Mr Rihal’s position remained unchanged through this period, Mr Gaffikin who was white but with fewer qualifications and less experience than Mr Rihal was, on Ms Herman’s retirement in September 1996, promoted on an “acting-up” basis to a position of greater seniority than Mr Rihal. The Tribunal noted that the clear difference in treatment was not something which Mr Foxall could explain (paragraph 27). In those circumstances the Tribunal was entitled to draw the inference that the racially discriminatory treatment of Mr Rihal continued during September to November 1996.[35]Much of the argument advanced during this appeal concerned the finding about the complaints concerning the 1998 assimilation process, namely complaints (d) and (e). Those were the complaints respectively that Mr Rihal was not assimilated to the post of Programme Delivery Manager or the post of Investment Planning and Standards Manager in the new restructured organisation. Here again Ealing criticise the Tribunal for a lack of findings of primary fact from which an inference of racial discrimination could be drawn. Ms Grewal points out that nowhere does the Tribunal expressly find that Mr Rihal would have been assimilated to either post, had he been white. She submits that one cannot discern from the decision why the Tribunal concluded that Mr Foxall, in attributing scores to Mr Rihal’s existing post, was thinking in terms of Mr Rihal’s capability or potential, even though he denied doing so in evidence. Emphasis is placed on the Tribunal’s findings that Mr Foxall was “an honest and honourable man” and on the fact that his explanation that he was seeking to arrive at a score reflecting the extent to which the existing job matched the characteristics of the new post was described by the Tribunal in paragraph 35 as “genuine and true”. It is said that it is unclear why the Tribunal reached the conclusion that it did and that consequently the decision is bad for a lack of reasons.[36]There are really two separate points being made by Ealing about the Tribunal’s conclusions on the assimilation complaints. The first is that the Tribunal did not find that Mr Rihal, had he been white, would have been assimilated to either of these two new posts. That is right. However, that does not seem to me to undermine the Tribunal’s finding of racial discrimination on this part of the case. It was unnecessary that there should be such a finding before the treatment of Mr Rihal could be regarded as amounting to less favourable treatment on racial grounds. If he was given a lower score in the assimilation exercise than would have been given to a white person in his existing post, that in itself would amount to less favourable treatment, and if that was on racial grounds such treatment would be unlawful in terms of section 4(2) of the Act, because it would be discrimination within paragraph (b) “in the way he (an employer) affords him access to opportunities for promotion, transfer or training” or at the very least within paragraph (c), “subjecting him to any other detriment.” As Brandon LJ said in Ministry of Defence –v- Jeremiah [1979] IRLR 436, that latter phrase does not mean anything more than “putting under a disadvantage”. It is clearly implicit in the Tribunal’s findings that Mr Rihal was given a lower score as a result of his race. Whether that would prove to merit a significant award of compensation was a matter for the later remedies hearing.[37]As the EAT pointed out, there can be no doubt that the Tribunal was very conscious of the need to carry out the comparative exercise required by the Act. It reminded itself at the outset of this need by setting out the terms of section 1(1)(a) and by summarising leading decisions such as Zafar (paragraph 8(d)). It returned to it at the end of its decision at paragraph 47 when it referred to Mr Rihal having “fared so badly in comparison to his white colleagues in a re-organisation exercise.” I agree with the EAT that it can readily be seen that the Tribunal had the importance of the necessary comparative exercise well in mind.[38]The second point is whether the Tribunal made adequate findings of primary fact to support its conclusion that Mr Rihal received a lower score as a result of his race and that “at some level of consciousness” Mr Foxall was allowing his view of Mr Rihal’s capability or potential to influence the scoring. What the Tribunal found amongst other things was that there was on the face of it a reasonably close match between what Mr Rihal was in fact doing in his existing post and the various job items in the description for the post of Investment Planning and Standards Manager; that Mr Foxall made a judgment about the extent to which the existing and the new job characteristics matched; that Mr Rihal received a relatively poor mark; that the new post involved talking to politicians and organisations of business people about partnership funding; that Mr Foxall had in his mind a picture of who would fit in at senior management level; and that Mr Foxall told Mr Dicks that he did not want to give Mr Rihal any “ammunition” in his appeal on job evaluation. In addition the Tribunal heard Mr Foxall give evidence and it reached an adverse judgment about his evidence that he was not considering Mr Rihal’s ability to do the new job. The Tribunal was entitled to do that, particularly because racial considerations may affect a person’s judgment without that person recognising that they have done so. In my view, the Tribunal made sufficient findings of fact to justify the conclusion which it drew, namely that Mr Foxall could not see Mr Rihal, a turban-wearing Sikh with a pronounced accent, fulfilling a senior management role with “ambassadorial” elements to it. The Tribunal’s reasoning is also sufficiently clear for the parties to be able to understand why they won or lost on this issue: like the EAT, I regard the decision as meeting the test set out in Meek –v- City of Birmingham DistrictCouncil [1987] IRLR 250. The Tribunal’s reference to Mr Foxall being an “honest and honourable man” (paragraph 48) is not inconsistent with him being unwittingly influenced by racial considerations. As Neill LJ said in King –v-Great Britain China Centre at page 528: “Few employers will be prepared to admit such discrimination even to themselves. In some cases discrimination will not be ill-intentional but merely based on an assumption that “he or she would not have fitted in”.” (my emphasis) Nor is Ealing assisted by the fact that the Tribunal accepted as genuine and true Mr Foxall’s explanation of what he was seeking to do in the scoring. That was simply the Tribunal accepting that Mr Foxall was honestly describing what he was trying to do in that exercise. As it said a little later, he gave this evidence with great conviction on his own part. That in no way leads to a conclusion that he was not influenced by racial considerations, albeit without appreciating it.[39]For these reasons I have reached the conclusion that there is no error of law to be found in the Tribunal’s decision on complaints (d) and (e) about the assimilation process.[40]I turn next to Ealing’s challenge to the decision on complaint (f), which concerned the non-appointment of Mr Rihal in 1999 to the post of Investment Planning and Standards Manager. It is contended that, insofar as the interviewing panel asked the same questions of Mr Gaffikin and Mr Rihal, and insofar as the former gave better answers than the latter, that should have been the end of the claim of racial discrimination. Ms Grewal, in her impressive argument, emphasises that Mr Foxall gave an explanation for the selection of Mr Gaffikin, to the effect that the questions were related to the specification for the job and that Mr Gaffikin’s previous experience enabled him to answer the questions better than Mr Rihal did. That explanation was not rejected by the Tribunal. Thus it was Mr Gaffikin’s experience by that date which enabled him to shine in interview and although that experience may have been obtained as a result of the earlier decision allowing him to “act-up” in place of Ms Herman, no complaint was contained in the Originating Application about that earlier decision. Nor does the Tribunal find that the questions were so formulated as to favour Mr Gaffikin. It was therefore wrong to uphold this complaint.[41]In considering this argument, it is important to note, as did the EAT, that there was here an actual comparator for the Tribunal to use, in the shape of Mr Gaffikin. Indeed that was common ground before the EAT. If one analyses what happened here, it is clear that, since Mr Gaffikin was appointed and Mr Rihal was not, the Tribunal could properly find that there was less favourable treatment of Mr Rihal. The issue therefore becomes whether it was open to the Tribunal to find that this difference in treatment was on racial grounds.[42]On this it seems to me, as it did to the EAT, that the Tribunal did not accept Mr Foxall’s explanation for the questions asked at interview. In paragraph 41 it found that the questions asked were such that Mr Gaffikin was given the opportunity to demonstrate his capabilities and to “shine”, whereas Mr Rihal was not given that opportunity. The Tribunal had by then already found that the post of Investment Planning and Standards Manager was well within Mr Rihal’s grasp, that he was better qualified that Mr Gaffikin and that to the extent that Mr Gaffikin had greater experience than Mr Rihal, that was because he had been allowed to act up on the retirement of Ms Herman. That last factor cannot be ignored just because it was not itself the subject of a formal complaint. As I have sought to indicate earlier, it was potentially relevant to the decision which the Tribunal had to make, and the interview cannot be treated in isolation from Ealing’s earlier treatment of Mr Rihal. Once the selection process concentrated on experience, that process had to take into account any handicap which the employer had imposed on a candidate by earlier discriminatory conduct.[43]Moreover, in determining whether the decision not to appoint Mr Rihal was on racial grounds, the Tribunal was entitled to take into account its finding that a “glass ceiling” operated in Ealing’s Housing Department in respect of non-white employees, as well as the evidence about Mr Foxall, the moving force on the interview panel, resisting Mr Rihal’s taking on more work and gaining more experience because it would assist him in his appeal on job evaluation. That last episode seems to have taken place only a short time before the appointment process itself took place. In all those circumstances there was an ample evidentiary basis for the Tribunal’s conclusion that the less favourable treatment of Mr Rihal in the appointment process was significantly influenced by racial grounds.[44]Finally, there is Mr Rihal’s complaint about the way Ealing, in the shape of Mr Dallison, dealt with his grievance and in particular the “vast delay” in dealing with it. On this Ealing submits that the Tribunal, in making a finding here of racial discrimination, failed to perform the necessary comparative exercise. Ms Grewal argues that the proper comparator would have been a white complainant lodging a grievance about racial discrimination. Yet there is, she says, no finding that Mr Dallison would have dealt more quickly with such a grievance. Consequently the Tribunal’s approach was legally flawed.[45]On this issue Ms Rayner on behalf of Mr Rihal puts forward two contentions. First she argues that Mr Rihal’s grievance was one of unfair treatment, not one expressly of racial discrimination. She draws attention to the terms of the grievance, where Mr Rihal said:
“I wish to put on record that I am aggrieved because I feel I have been less favourably treated than others, particularly since March 1996.”
Indeed, it was Mr Dallison’s evidence that he was not aware that there was a racial element in the complaint. While the Tribunal rejected his evidence, he could not even have adopted this position, argues Ms Rayner, had the grievance been expressly about race discrimination. Therefore the Tribunal would have been entitled to use as a comparator simply a white employee who lodged a grievance of any kind.[46]I do not find this a convincing line of argument. It is implicit in the Tribunal’s finding about Mr Dallison that the grievance was in reality one of racial discrimination. It expressly found that Mr Dallison recognised this. But Ms Rayner’s second point has more force. She submits that, when the Tribunal says at the end of paragraph 46 “If a white employee had complained, he (Mr Dallison) would have delegated the complaint to H.R. or dealt with it quickly,” it was referring to a white employee who had made a similar complaint. I agree. When one look at the Tribunal’s decision as a whole, it is clear that the Tribunal was throughout conscious of the proper approach to the comparative exercise. Thus it reminds itself early on that it has to consider how the alleged discriminator would have dealt “with another in the same circumstances”: paragraph 8(d). It did not need to spell out this test in full each and every time it dealt with one of the individual complaints. The sentence quoted above implies a white employee complaining in similar circumstances. Therefore I do not accept that the Tribunal erred in law on this aspect of the case.[47]It follows that I would reject the challenge to the decisions made below about each of the individual complaints, as I would the more general criticism set out earlier in this judgment. For those reasons I would dismiss this appeal.[48]I agree with the judgment of Lord Justice Keene in all respects. I take the liberty of adding some remarks of my own.[49]Section 32 of the Race Relations Act 1976 provides: (1) Anything done by a person in the course of his employment shall be treated for the purpose of this Act (except as regards offences thereunder) as done by his employer as well as by him, whether or not it was done with the employer’s knowledge or approval. … (3) In proceedings brought under this Act against any person in respect of an act alleged to have been done by an employee of his shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing in the course of his employment acts of that description.[50]This section provides a carrot and stick. The stick is that employers will ordinarily be liable for the discriminatory acts of their staff. The carrot is that they will escape vicarious liability if they can show that they had done all they reasonably could to prevent their staff from discriminating on grounds of race. The plain purpose is to encourage employers to prevent racial discrimination by the use of procedures, training and monitoring. But the section also has a reverse effect. An employer which is unable to invoke s.32(3) - in other words, which has done little or nothing to prevent or halt possible racial discrimination on the part of its staff - faces an enhanced risk that their discriminatory acts will be found to have contained a racial element.[51]It is perhaps unfortunate that, in an otherwise convincingly reasoned decision, the employment tribunal in its extended reasons spoke of a "force" at work in Mr Rihal's department (see paragraph 21 above). This is not forensically useful language. What the tribunal is describing is a departmental culture, not some external influence. It was a culture, as Miss Rayner suggests, which visualised and placed people within the departmental hierarchy in large part by racial stereotype. Such a culture may well affect the judgment even of honest and honourable decision-makers.[52]The ethnic audit figures produced by Ealing for the tribunal hearing and summarised in paragraph 43 of the employment tribunal's reasons are disturbing. (It might have been better if this paragraph had been placed much earlier in the reasons.) In the housing department of the local authority of a multi-racial borough they portray an almost complete racial divide between upper management and the remainder of the staff. With the single exception of Ms Gomer (whose elevation the tribunal found explicable without negativing their general finding) the entire managerial team was white: this in a borough 40 per cent of whose population is from ethnic minorities, and in a local authority whose other departmental senior management teams typically contain about 25 per cent from ethnic minorities. These figures in themselves rightly put the tribunal on inquiry, because they suggested a clear possibility that there was a culture of white elitism in the upper echelon of the housing department. Such a culture, as the tribunal will have been well aware, can exercise a potent influence on individual decision-makers, of which they themselves may be aware faintly or not at all.[53]Ms Grewal, for the local authority, has relied upon what Balcombe LJ said in Chapman v Simon [1994] IRLR 124, para. 33:
"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."
What her argument overlooks is that there was no such want of primary facts here. The sharp ethnic imbalance revealed by Ealing's own figures was enough to entitle - indeed arguably to require - the tribunal to look for a convincing non-racial reason. In a well-run organisation there will be procedures, training and monitoring data capable of reassuring a tribunal that everyone has been treated on an equal footing and that any imbalances are caused by fortuitous or extraneous factors. When the tribunal failed to find an acceptable non-racial reason for the imbalance of which Mr Rihal's history formed part, they were entitled to infer that there was none: see West Midlands PTE v Singh [1988] ICR 614, 619. Their inference was supported by Mr Rihal's own history of persistent non-promotion.[54]We have been given no indication that this situation has been attended to by the borough council, even after the handing down of the tribunal's uncontested finding of an ethnic 'glass ceiling'. The only endeavour that seems to have been made is to overset the employment tribunal's meticulous and cogently reasoned decision. The borough's funds might have been better spent on putting its departmental house in order. It is to be hoped, not least in the Borough's own interests, that attention will now be given at an appropriate level to this court's judgment.

Lord Justice Auld:

[55]I also agree that the appeal should be dismissed for the reasons given by Lord Justice Keene.

Order

Appeal dismissed; Appellant to pay Respondent’s costs assessed in the sum of £4,051. (Order does not form part of the approved judgment)

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