British Telecommunications Plc v Grant [1993] UKEAT 816_92_2012

EAT
British Telecommunications Plc v Grant
[1993] UKEAT 816_92_2012 · 1993-12-20
MR JUSTICE TUCKER: This is an appeal by employers from a decision of the Industrial Tribunal sitting at London (North) given on the 17th September 1992, after a hearing over four days in July of that year, that the Appellants were in breach of Sections 2(1)(a) and 4(2)(b) of the Race Relations Act 1976 .The parties were represented before the Tribunal by the same Counsel who have appeared before us, which is very helpful in arriving at a decision as to what took place before the Tribunal.The principal ground of appeal is that the Tribunal erred in law in finding that the Appellants were in breach of the Sections of the Act to which we have referred. The second ground advanced before us is that the Respondent was not treated less favourably. The third ground is, that if he was, he was not treated less favourably than others and that in so finding the Tribunal erred in law or their decision was perverse.The Respondent, Mr Michael Grant, was employed by the Appellants, British Telecommunications plc, as a trainee technician, Grade T2B. He was promoted to a technician, Grade T2A. Thereafter he was transferred to a scheme known as TOIT (Technical Officer in Training). He expected that after two years he would be promoted to Technical Officer TO but that did not happen: he reverted to his Grade T2A. The main thrust of the Respondent's complaint to the Tribunal was that he had been discriminated against during his training course. As to that the Tribunal found against him. They dealt with the matter at paragraph 14 of their decision. They referred to the Respondent having made four major mistakes which they outlined. They then say that they were satisfied that there was no discrimination in relation to the seating in the department. They went on to say this:
"But we are satisfied that anyone who was falling below the standard Mr Scripps wanted would have had monthly assessments as indeed anyone on TOIT did bar a period when they lapsed and they would not have known what those assessments said."
Then the Tribunal make this important finding:
"We do not find there has been any discrimination in relation to his TOIT training, albeit as we have said there are many improvements which could be made but the method of training would have been the same for all TOIT personnel."
There was another complaint, which in our opinion was a secondary one, which appeared at the end of the Originating Application. It related to a period of further training offered to the Respondent. It was not to that that the Respondent objected to but the fact that the Appellants refused to allow him to move from one department, and in particular from one manager, or supervisor, to another. As to this the Tribunal found in paragraph 15 of their decision:
"that that refusal to allow Mr Grant [the Respondent] to move and be supervised by new managers was as a result of his complaint of racial discrimination"
they went on to say this:
"It was possible for Mr Grant to move and he should have been moved. We find that that act was an act of victimisation contrary to section 2 of the Act, and the act of victimisation resulted in discrimination in the way the Respondents afforded him access to an opportunity for promotion and training contrary to Section 4(2)(b) of the Act as is evidenced by the failure of the extra 4 months training under Mr Scripps."
though how that last finding follows from the previous finding we find it difficult to understand.The Appellants submit that it was in reaching this finding that the Tribunal made the several errors of which the Appellants now complain. First it is to be noted that although in the passage in paragraph 15, to which we have referred, the Tribunal themselves refer to an act of victimisation under Section 2 of the Act, their formal decision was that the Appellants were in breach of Section 2(1)(a). The Appellants submit, with justification, that this was not a mere slip since at paragraph 12 of their decision the Tribunal had recited that provision with some particularity and had not cited any other provision contained in Section 2(1).Section 2 of the Act deals with discrimination by way of victimisation. It is a Section designed to prevent an employer from victimising an employee who has taken, or intends to take, any proceedings against the employer under the Race Relations Act or, who has helped anyone else to do so. It is a Section under which protection is afforded only where what has been done is by reference to the Act and subparagraph (a) refers specifically to the bringing of proceedings under the Act, that is to say, a complaint of racial discrimination made under the provisions of the Act to an industrial tribunal.The difficulty in the present case is, that at the time of the act of discrimination to which the Tribunal refer, there had been no such complaint. That had only been made when the Respondent applied to the Industrial Tribunal by means of his Originating Application which is dated 3rd September 1991. The complaint upon which the Tribunal based their decision did not constitute the bringing of proceedings under the Act, it was an internal complaint made in July 1991.We do not understand how the Tribunal came to make that decision. Miss Hyde seeks to explain it by reference to the concluding words of the subsection which are:
"or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them."
But the Tribunal make no reference to those words in their recital of the Statutory Provisions in paragraph 12 of their decision or anywhere else in their decision. We do not accept that they are comprehended in a passage in paragraph 9 of their decision, to which Miss Hyde drew our attention, where the Tribunal refer to a possibility of Mr Grant complaining to an Industrial Tribunal. Miss Hyde herself concedes that it is difficult to argue that the case fell within Section 2(1)(a). She submits that it could properly fall to be considered under subparagraph (d) or possibly subparagraph (c). If there had been no further ground of appeal we might have been persuaded to do as Miss Hyde asks, that is, to substitute a decision under subparagraph (d) but that is not the end of the matter. We next have to consider whether the Respondent was treated less favourably than other persons. This was a situation where the Respondent was not being refused training. He had undergone a course in relation to which the Tribunal found that there had been no discrimination. He was not thereafter rejected by the Appellants and returned to his former status but was offered the opportunity of being given further training. No doubt they were as anxious as he was that the time and money which they had invested in his training should come to fruition. That could not be described as less favourable. Was it less favourable that he should be asked to complete the course under the same managers, and if so, less favourable to whom? He was under no obligation to undergo further training, the choice was his. It is difficult to see where the detriment was and the Tribunal did not address that question.There is a further difficulty, that the Tribunal failed to make any comparison - which must be necessary before any decision can be reached - as to whether any treatment is less favourable. The case of Aziz v. Trinity Street Taxis Ltd [1988] ICR 534 is authority for the proposition that the opening words of Section 2(1) containing the phrase "less favourably than" necessitate a comparison of some kind or another. No such comparison was attempted here. It is true to say that at one stage we found it difficult to see how a comparison could be made with anyone but Counsel have provided the answer. A comparison could and should have been made with another employee who had made a complaint against a supervisor, for example, of corruption or of sexual harassment, and an assessment then made as to whether the Appellant was less favourably treated than such a complainant would have been. It might have been a hypothetical exercise but at least such a comparison should have been attempted.Miss Hyde has striven valiantly to uphold the Tribunal's decision. She submits that it is extremely unlikely that the Tribunal did not have the treatment of others in mind when they considered the question of victimisation. All we can say is that there is nothing in their decision which leads us to say that they did.For these reason we conclude that the Tribunal were wrong in law to base their decision on Section 2(1)(a) and that their reasoning was perverse in the other respects which we have outlined in that they did not address their minds those the matters. Their decision was flawed in these respects and we must quash it. We substitute our decision that the Appellants were not in breach of the provisions of the Race Relations Act . This appeal must be allowed accordingly.