Northamptonshire County Council v Dattani [1993] UKEAT 314_91_1702

EAT
Northamptonshire County Council v Dattani
[1993] UKEAT 314_91_1702 · 1993-02-17
MR JUSTICE WOOD (PRESIDENT) After a hearing over three days during March and April 1991 an Industrial Tribunal sitting at Bedford rejected Ms Dattani's allegation of direct racial discrimination under S.1(1)(a) and S.4 of the Race Relations Act 1976 ("the 1976 Act"), but found in her favour on an allegation of victimisation under S.2(1)(a) of the same Act. At a hearing on 14th June 1991 she was awarded £8,925 compensation in respect of that victimisation. The County Council appeal against the finding of victimisation and the award of compensation, and Ms Dattani cross-appeals against the rejection of her allegation of direct racial discrimination.Ms Dattani was a social worker employed as such by the Northamptonshire County Council ("the County Council"). She is of Indian origin and came to the United Kingdom in 1982. Responsibility for her salary was shared by central Government and the County Council: she was what is called a "S.11 ethnic minority social worker". Her work lay predominantly amongst workers who were referred to during the hearing as "black" workers. Her existing appointment had been from August 1988.During the Spring of 1990 Ms Dattani applied for secondment for a period of two years to a college, where she could obtain the full qualification of a social worker in all aspects. During that period of secondment, the County Council would be responsible for her salary.Under this Scheme there were at this time 6 vacancies and 24 applicants. Of these 24, 20 submitted written applications and based upon those written applications 10 of that 20 were selected for short-listing. Ms Dattani was by no means outstanding in her written applications, but she was short-listed by Mr Reynold and Mrs Bresnahan who made the decision jointly. There was a policy within the County Council of giving those from an Ethnic Minority priority when it came to secondment in order to obtain qualifications.Ms Dattani was interviewed on 9th April 1990 by Mr Reynolds and Mr Merriman. On 31st May she was told that she had not been successful. On 6th June she wrote to the assistant director of Social Services asking for an interview.On 9th July she issued her Originating Application alleging racial discrimination.On 11th July she had a meeting with Mr Cook, the assistant director, who promised to investigate her case.On 27th July a decision was reached by the County Council to offer Ms Dattani an extension of her appointment from August 1990 to 30th June 1991. This offer was made in writing to her on 3rd August and accepted by her on 17th August. By a handwritten letter of that same date she wrote to the County Council as follows:
"I wish to terminate my employment with social services department as I will be away for full time education.
My last working day will be 17 September 1990.

Yours sincerely"

Ms Dattani indicated to the Industrial Tribunal that her real complaint was that the reason for her failure to be selected for secondment was that her experience was not adequate because it was limited to working with "Blacks". She would not have complained if the reason had been that she was not ready for the course, or that other candidates were considered more suitable.At the meeting of 11th July, to which we have referred, Mr Cook promised to investigate her complaints and to do so despite the imminent issuing of proceedings before an Industrial Tribunal. In a letter of 12th July, Mr Cook suggested to Mr Brooks that Mr Crich the Personnel Officer be asked to start a formal investigation. The Industrial Tribunal then say:
"... We heard from Mr Brooks that at that point the respondents learned that an Originating Application alleging racial discrimination had been presented by the applicant, and it was for that reason that no further steps were taken to investigate the applicant's complaints. No steps were taken to inform the applicant that no investigations would in fact be made and indeed it may well be that the applicant was led to believe that investigations were being made."
The initial allegation was of direct discrimination and the findings of the Industrial Tribunal on this issue are contained in paragraphs 10 and 11 of their decision:
"10 There is nothing in writing about this interview, save the note which was made a short time afterwards on the bottom of the letter to which I have referred. We have little doubt that the applicant herself believes that she was told that she lacked experience because her work had been mainly with black workers. Having listened very carefully to all the evidence and having read the exhibits, however, we are not satisfied that this was said to the applicant. The respondents' policy is clearly set out in the documents, and this is to favour ethnic minority workers, rather than to discriminate against them. Mr Crofts admits that this is so, but says that his charge is that the policy was not in practice carried out on this occasion. It is clear that there was a great deal of talk about black clients and social work with the blacks at the applicant's interview, because this was, of course, precisely the work done by the applicant. Any discussion of the applicant's work would be bound to revolve around her clients who are black.
11 We are satisfied that there is no evidence, and no inference which we should draw, of any racial discrimination in this case. It is not for us to decide whether the applicant was fairly selected or whether, for example, she should have been selected rather than applicant `P' or anybody else. The evidence is that Mr Reynolds and Mr Merriman considered that the applicant was not ready for secondment to this college. Mr Cassidy considered that she was ready but he was judging an entirely different matter. The Respondents were set to decide which of their employees should be paid while they took a course for two years. Mr Cassidy was merely concerned with accepting suitable students for his college. The respondents are not saying that the applicant was not suitable. They are saying that the others were more suitable, and that they were more ready than she was for this particular secondment. In our view this was an "innocent explanation", to use Mr Justice Browne-Wilkinson's expression, of their treatment of the applicant. We have therefore decided unanimously that the complaint of racial discrimination fails."It is convenient first to deal with the cross-appeal. Mr Whitmore submits that the decision of this Tribunal was perverse, in that in reaching its decision it failed to take account and to make express reference to evidence; in particular the remarks written on the interview forms by the two interviewers, and the way in which the interview forms had been used. Secondly, failure to look at comparable cases. Thirdly, that the Tribunal had no right to accept an explanation from the County Council as "innocent", without a suitably sceptical approach and investigation. Fourthly, that had the Tribunal taken the content of the interview notes into account, it could not have preferred Mr Reynold's version of a conversation which he had with Ms Dattani rather than hers. Lastly, the failure to refer to the relevant Code of Practice indicated an inappropriate approach.It was submitted, and rightly, that one must look at the overall approach of the Tribunal and that each of the above criticisms should be considered as part of a whole, but the keystones to his argument are to be found in the interview forms and the finding of "innocent explanation".We are satisfied that, initially, Ms Dattani's case was that she was less favourably treated because she came from an ethnic minority and that secondly, she had been less favourably treated because she had worked with blacks. As the argument developed before us, it became clear that the latter was the real point, and indeed when one looked at her letters and the finding of the Tribunal to which we have already referred, it was clear that this was her main anxiety. Reliance was placed by Mr Whitmore upon the case of Showboat Entertainment Centre Ltd v. Owens [1984] ICR 65 where this Tribunal in a reserved judgment held that
"... that less favourable treatment "on racial grounds" in section 1(1)(a) of the Act of 1976 could be read both as referring to the racial characteristics of the complainant alone, or as applying to any case where the race, whether of the complainant or of a third party was an effective cause of the detriment suffered by the complainant; ..."
The Tribunal found that the County Council were not saying that Ms Dattani was unsuitable for this secondment, but that others were "more suitable" - "readier for that secondment". We can imagine that social workers or potential workers would find it desirable to have a very wide experience of many of the aspects of social work. The question which the Tribunal had to ask themselves is "what was the reason for Ms Dattani's failure to be selected?" And secondly, did that reason contain a significant "racial grounds" component"?We turn to the criticisms which have been made. The Tribunal saw and heard the witnesses, who were clearly cross-examined at some length. The Tribunal had before it a bundle of some 266 pages containing every relevant document and in particular all those referable to the selection process. In paragraph 5(vi) - part of the paragraph where facts were found, the Tribunal say:
"We have been into these interviews in great detail. We have seen the notes made by the interviewers, and we have heard evidence of the questions which were put to the applicant and of questions which were put to some of the other applicants. We have also read the remarks on the sheets, completed by the interviewers. The applicant was not selected. The notes were fairly short. We have heard, however, from Mr Reynolds and Mr Merriman the reason for non-selection. To summarise what they said; they came to the conclusion that the applicant was not yet ready for secondment."
From this passage it is clear that the Tribunal made the closest examination of the interview forms and the comments therein. It must also have examined possible comparators in so doing. Moreover, when considering the conversation between Mr Reynolds and Ms Dattani, the Tribunal rely upon a contemporaneous note written by Mr Reynolds at the foot of a letter.Criticism is made of the use of the phrase "no evidence" in paragraph 11 of the decision. This paragraph must be read as a whole and in that sentence it seems to us that the Tribunal was saying that there was no evidence, which satisfied them, that inferences should be drawn therefrom.The reference to "an innocent explanation" is really to find that the Tribunal accepted the truth of the case being put forward by the County Council - the reason for the non-selection of Ms Dattani - and that it did not contain substantial elements which could fall within the phrase "less favourable treatment on racial grounds".We therefore find no error of law in the reasoning of this Tribunal on this issue and the cross-appeal will be dismissed.On the first day of the three-day hearing, the issue of victimisation was included by way of amendment. Until that stage Ms Dattani had not appreciated that the County Council had not proceeded with her grievance as promised. No authorities were cited to the Tribunal on this issue. We do not accept that those authorities could not have been so cited, but no doubt they were well known to the Tribunal.After setting out S.2 of the 1976 Act the finding of the Tribunal is contained in paragraph 13 -
"Mr Supperstone has argued that it was the fact of the Originating Application having been presented which brought the enquiries to a halt. The enquiries did not halt by reason of the fact that the applicant had brought proceedings. He argues that this is a fine distinction. it is too fine a distinction for us to understand, and we consider that this is a straightforward case of victimisation. The object of this victimisation provision is to safeguard people who take advantage of the Race Relations legislation from being penalised in any way. Mr Brooks has made it quite clear that the very thorough investigation which had been suggested to him by Mr Cook were never in fact made because the applicant had presented an Originating Application alleging racial discrimination. This is treating the applicant less favourably, and indeed there has been no argument that failure to investigate was not treating the applicant less favourably. We have heard various suggestions as to what would have happened had the investigations been made. This, however, is not a question whether or not there was victimisation. it is relevant purely to the amount of compensation in the event of a finding of victimisation. As I have already indicated, we are in no doubt about this. There was victimisation within the meaning of the Act when the investigatory process was halted by Mr Brooks, on the advice of Mr Crich, after the Originating Application had been presented."
Mr Supperstone submitted that the Applicant, in order to succeed, would have to prove that in refusing or admitting to afford her access for opportunities for transfer, or by subjecting her to the detriment of denying her access to the grievance procedure, the County Council treated her less favourably than they would in the same circumstances had treated other persons: and that they did so because Ms Dattani had brought proceedings against them under the Sex Discrimination Act. He referred to Cornelius v. University College of Swansea [1987] IRLR 141 and in particular to paragraphs 31, 32 and 33 in the judgment of Bingham LJ and also to Aziz v. Trinity Street Taxis Ltd [1988] ICR 534 at p.542 and p.548 . We accept these submissions.We were referred to the evidence given by Mr Brooks as recorded by the learned Chairman where he said:
"12th July 1990. Memo to me. Copy letter was nine. I cannot recall any other letter. Cooke had suggested that Crich should investigate. I saw him the next morning and asked him to act on this recommendation. In fact the following day, the 13th July, we received the formal notification of these proceedings. Mr Crich brought this to my attention and we discussed the position. He advised that as the matter was now in a formal process, which effectively investigates the applicant's complaint, that it should be dealt with through these processes - and so I said he should not proceed with what I had asked the previous day."
First, Mr Supperstone seeks to make the point that whether the Tribunal proceedings had been brought under the Sex Discrimination Act 1975, the 1976 Act or the Employment Protection (Consolidation) Act 1978, the grievance process would have been brought to a halt and therefore it was not by reason of the protected act that this took place.He made this submission to the Industrial Tribunal. It was rejected. The Industrial Tribunal find specifically:
"... Mr Brooks has made it quite clear that the very thorough investigations which had been suggested to him by Mr Cook were never in fact made because the applicant had presented an Originating Application alleging racial discrimination. ..."
Reading paragraph 13 of the Decision broadly we can find no error of law in the approach of this Industrial Tribunal and the facts it found against the County Council. The appeal must therefore fail on its first issue.At the Compensation hearing Ms Dattani did not give evidence.Compensation to be awarded in these circumstances is "for forseeable damage arising directly from an unlawful act of discrimination. It follows that an applicant can claim for any pecuniary loss properly attributable to an unlawful act of discrimination" per Lawton LJ in Skyrail Oceanic Ltd v. Coleman [1981] 864, 971.In this case the act was the cessation of the grievance procedure about which which Ms Dattani knew nothing until the first day of the hearing before this Industrial Tribunal. Her loss was the loss of a chance that this procedure would have ended in a decision that she should be seconded. This chance required assessment and decision. This was not carried out.Thereafter there was the question of mitigation for that loss.Thirdly, came damages for injury to feelings.The calculation made by the Tribunal is contained in paragraph 16 as follows:
"We have unanimously decided that, even taking some failure to mitigate into account, the pecuniary loss attributable to this victimisation, when added to a reasonable compensation for injury to feelings, amounts to more than the maximum of £8,925. We therefore award compensation of £8,925."
Based upon the principle of Meek v. City of Birmingham District Council [1987] IRLR 250 . CA , Mr Supperstone argues that it is impossible to understand how the heads of damage have been assessed and what was the method of calculation. It could on certain findings be that the maximum of £8,925 was not exceeded. We find that submission convincing. The assessment in the present case is clearly complicated and differs from the simple approach which was possible in Sharifi v. Strathclyde Regional Council [1992] IRLR 259.This would be sufficient for the appeal on compensation to be allowed, but it is submitted further that there was no evidence to support two passages in the Compensation decision. The first is where the Tribunal state in paragraph 13,
"In our view the respondents showed themselves to be caring employers. That investigation, we feel, would have been a thorough one. The applicant made it clear to us at the last hearing that she would have been satisfied if she was given a reasonable explanation as to why she was not selected. We feel that the respondents would have counselled her and that there would have bee every chance of their persuading her to remain in their employment and to try for secondment again the following year."
We agree that we can find no evidence to support this latter sentence.Secondly, Mr Supperstone points to a sentence in paragraph 15 which reads:
"... The fact that the applicant had to wait for some 8 months before being informed that the respondents had not continued with their investigation aggravated the injury rather than the reverse."
There is no finding of "the injury" suffered from the less favourable treatment of which Ms Dattani was unaware until the first day of the hearing. It is submitted that no such injury could therefore be aggravated.We are satisfied that the compensation issues must be remitted and we will listen to submissions on the appropriate form of order.