London Borough Of Camden v Watson [1994] UKEAT 613_93_1710

EAT
London Borough Of Camden v Watson
[1994] UKEAT 613_93_1710 · 1994-10-17
MR JUSTICE MUMMERY (PRESIDENT): This is an appeal from the decision of the Industrial Tribunal held at London South over four days between 18 and 21 May 1993.For Full Reasons notified on 24 June 1993, the majority decision of the Tribunal was that the Respondents, the London Borough of Camden, had racially discriminated against the Applicant, Mr Watson. The Tribunal ordered payment of £1,500 in respect of Mr Watson's injured feelings and compensation for loss of earnings as specified in the Reasons.The London Borough of Camden was dissatisfied with the decision and appealed by a Notice of Appeal dated 4 August 1993.The factual background to the appeal is that Mr Watson was employed as a mobile warden service manager by the Council from 18 December 1989 until his dismissal on 11 September 1991. It will immediately become apparent from those dates that, as he had less than two years' continuous service, he was not entitled to bring a claim for unfair dismissal. The claim brought by him was for race discrimination. It is explained in his Notice of Application, presented on 7 December 1991, that Mr Watson is of Afro-Caribbean origin and was sacked by the Council for an alleged assault. He appealed against the decision to dismiss him. On a majority decision his appeal was unsuccessful. He contended inthe IT1:"The circumstances under which the decision was taken [and that is the decision on the appeal] were unusual and a departure from normal practice".He specifically alleged that there were a number of cases of similarly charged staff where lesser penalties had been given. The majority of those cases were concerned with white male staff. His case was that the Council took the side of the white complainant in relation to the alleged assault without properly considering the possibility that the allegation incident may have been clouded by racist assumptions.The Council contested the claim and gave as the reason for dismissing Mr Watson gross misconduct in the form of an incident in which he is alleged to have assaulted an LEB official in a car park at Bidborough House. The Council referred to a disciplinary hearing at which the decision was made to dismiss him, to the appeal panel and to the issues before both the disciplinary hearing and the appeal panel. Reference was made to the fact that he was represented and to the fact that it was not suggested that the allegation and the incident which gave rise to the disciplinary proceedings had been clouded by racist assumptions.It is asserted that a fair procedure was followed and nothing occurred in the procedure which amounted to unlawful discrimination. It was admitted that in other cases staff had not been dismissed following assaults, but denied that the difference in treatment amounted to discrimination on the grounds of race.Those were the issues before the Industrial Tribunal at the hearing last year. The facts found by the Tribunal were not seriously disputed. The main ground which arises on this appeal is what inferences could properly be drawn from those facts. The facts are that there was indeed an incident at Bidborough House car park on 25 July 1991. Mr Watson was involved in an altercation with another driver of an LEB vehicle. An assault took place. A complaint was lodged by the LEB official. As a result Mr Watson was suspended.On 9 September a disciplinary hearing was held by Mr Watson's line manager, Mr Reynolds, the Assistant Director of Housing. At the disciplinary hearing Mr Watson was represented by counsel and by his union representative. The Tribunal found that he had a full and fair hearing before a decision was taken to dismiss him. The Tribunal found that, there was no suggestion of racial discrimination arising at that early stage of the proceedings.The events which have given rise to this appeal concern the inferences drawn by the majority of the Industrial Tribunal from findings of fact about the appeal which Mr Watson initiated by letter of 23 September 1991.At the appeal, which took place on 28 October 1991, Mr Watson wished to lay before the panel mitigating circumstances about his case, in particular the circumstances of the incident, his excellent employment record, and the treatment of similar incidents involving white male employees.There was in evidence before the Tribunal (copies have been produced for this hearing) minutes of the hearing of the staff's appeal board. A number of councillors were present, seven in all. Councillor Maggie Cosin was appointed chair for the meeting. Apologies for absence were received from three other councillors. Of the seven councillors present two of those who were there at the beginning of the hearing were not there at the end of the hearing. One left for the conclusion of the evidence. The other left after the conclusion of the evidence but before the conclusion of the deliberations.It appears from the notes that the management case was presented to the appeal board by Mr Reynolds. He called as a first witness, a Mr Peter Rawle, who was an eye witness of the incident. No evidence was given either to the appeals board or subsequently to the Industrial Tribunal by the LEB driver involved in the incident. The other witness called by Mr Reynolds was Helen Scullard, the Elderly Persons Service Manager in Camden since 1987. She had been in her post in the Housing Department since 1989. Since the end of that year she had known Mr Watson. It appears from the notes that, quite early on in her evidence, she gave evidence of Mr Watson's character and his alleged involvement in other incidents. Miss Watkins, the NALGO union representative for Mr Watson, made an objection. She asked specifically why this character evidence was not brought up at the disciplinary hearing. The staff board went on nevertheless to hear hearsay character evidence unfavourable to Mr Watson since it was related to alleged losses of temper by him on other occasions. No prior notice had been given to Mr Watson or Miss Watkins, as his representative, of intention to call this evidence. It was not called at the disciplinary hearing before Mr Reynolds. No notice was given, in the period between that hearing and the staff appeals court hearing, that such evidence would be called.The decision of the Tribunal was that the staff appeals board hearing, which resulted in a majority decision confirming Mr Watson's dismissal, could be criticised in two respects. First, for the introduction for the first time of the hearsay character evidence without prior notice and secondly, in the departure of two of the councillors on the board before a final decision was made.The critical parts of the Tribunal decisions are in paragraphs 22 onwards in which the Tribunal said this:
"22. The Tribunal are unanimous in its conclusion that in particular in relation to the manner and content of the character evidence introduced the Appeal hearing was conducted unfairly. The Tribunal diverges as to what inference should be drawn from that unfairness. The finding of the majority of the Tribunal is that the involvement of the Applicant's line manager and section manager in the introduction of the evidence, the failure of the Councillors either to rule out the evidence at the time when it was first introduced, or indeed at all during the hearing, the failure of the Clerk to the Council of the Personnel Officer also to rule out the evidence, the fact that at least one Councillor showed an interest in the point all demonstrate an unsympathetic and unfairly unfavourable attitude by a number of people present at the hearing (obviously to a greater or lesser degree) which in the conclusion of the majority of the Tribunal can only be explained by the colour of the Applicant.
23. The majority of the Tribunal are reinforced in their drawing of that inference by what they find to be the somewhat offhand approach of the Appeal hearing in allowing Councillors to leave without any particular formality or approach to the Applicant for representations one way or the other. Furthermore, if further corroboration were needed, the majority of the Tribunal take the view that the failure by the Respondents to reply in any way to the Applicant's representative's complaints as set out in her letter at page 126 of 20 November 1991 until January 1992, was symptomatic of an approach to the Applicant ....".The reference to the letter of 20 November is to a letter written by Miss Watkins on behalf of Mr Watson setting out her complaints about the manner in which the appeal hearing was conducted. It is a lengthy letter in which she asked in the opening paragraph that the appeals panel should be reconvened to hear the case because, in her submission, the appeal was discriminatory, unfair and went against natural justice. She made a number of allegations. The first was the biased introduction of hearsay evidence, as she described it, the second was the inconsistent practice of panel members and the third section of the letter was headed Discriminatory Factors, in which Miss Watkins identified a number of respects in which she alleged that discrimination had to come into play in the decision making process.The reply given to that letter by Camden Borough Council in January 1992 did not, in the view of the majority of the Tribunal, address itself to the issues clearly raised on behalf of Mr Watson. In particular, the allegation that there had been introduction of hearsay evidence painting him as "an aggressive black man".In those circumstances, the Tribunal majority concluded that no real explanation had been put forward, on behalf of the Council, as to why and how such unfavourable character evidence had been made against Mr Watson at the appeal hearing for the first time. The overall conclusion of the majority of the Tribunal was that the behaviour could only be explained as racial discrimination.In paragraph 25 the dissenting minority view was noted. Although the minority member agreed with the overall findings of fact and agreed that the facts found operated unfairly upon Mr Watson, no inference could be drawn of racial discrimination. The view formed by the minority member was that the matters which had troubled the Tribunal and which have been criticised, flow principally from accidental causes and were an example of incompetence rather than racial discrimination.The Tribunal went on to consider a number of other matters relevant to compensation which were dependent on the majority finding that there had been racial discrimination. It is unnecessary to consider those matters if we are persuaded by Mr O'Brien, who appeared for the Council on the appeal, that there was an error of law in the majority decision in making an inference of racial discrimination.Mr O'Brien made a number of valuable points. He made one point, which we would dispose of at the outset; and that is that it was not open to the Tribunal to make an inference of racial discrimination from the manner in which character evidence had been introduced on the appeal, because the introduction of the character evidence on the appeal was not the subject of the original complaint. He pointed out that that was not specifically mentioned in the Originating Application, which contained a general complaint that the decision to dismiss on the appeal hearing was taken in unusual circumstances and a departure from normal practice.A request was made by the Council for particulars of that allegation and sought from Mr Watson details of the unusual circumstances, the normal practice referred to and the respects in which the normal practice had not been followed. The reply to the request made on 6 May 1992, was given by Miss Watkins on behalf of Mr Watson, in a letter of 19 June 1992. In answer to that particular enquiry, it was stated that the unusual circumstances were that a number of panel members were not present when the decision to uphold the dismissal was taken. Nothing was said in the particulars about the unfairness or discriminatory nature of the introduction of character evidence.It is, however, right to point out that, in answer to the particulars sought under another aspect of the case, Miss Watkins answered for proper consideration:
"I would refer you back to the letter to the Chief Executive setting out the complaints"
. That is the letter of 20 November 1991 which contains specifically, and in detail, the complaints about the character evidence.The Tribunal seemed to have been aware of these problems of identifying precisely what Mr Watson's complaints were about. They dealt with it in paragraph 2 as follows:"2. It seems to us that the main grounds of the claim and the main allegations are most conveniently and fully set out in the 4 page grounds of appeal at pages 37-40 which were the points notified to the Appeal Committee to be relied upon on behalf of the Applicant formulated by Phoebe Watkins. A further letter dated 20 November 1991 to the Respondents' Chief Executive at pages 126-128 rehearses the grounds and adds further complaints as to the conduct of the appeal hearing. Whilst to a certain extent Mr O'Brien made points based on the matters set out in the Originating Application it seemed to us that the Respondents have been for a very long time fully aware of the principal planks of the Applicant's case as championed by his Union representative".In our view, that was a correct way for the Tribunal to deal with the question of precisely what complaints were made by Mr Watson, and were alleged to be discriminatory. The Council, if it had been taken by surprise at the hearing by the point of character evidence, could have asked for an adjournment. It appears from the decision that they were ready to deal with the allegations which, although not contained in the Originating Application as particularised, had been fully ventilated on behalf of Mr Watson in the letter of 20 November 1991.On that aspect of the case, we find no error of law in the decision of the Tribunal, though we agree with the passage which Mr O'Brien relied on in the recent court of appeal case of Chapman and another v Simon [1994] IRLR 124 at page 129 where it was pointed out by Balcombe L.J. in paragraph 33 that, if a complaint of racial discrimination is made, the jurisdiction of the Industrial Tribunal is limited to the complaints which have been made to it. If no complaint is ever made of particular matters, it is not open to the Tribunal to find that there has been racial discrimination.We find that, in this particular case, the complaints in relation to the character evidence had been clearly made known to the Council before the Industrial Tribunal hearing took place and were dealt with at the hearing by both the Council and by Mr Watson's evidence. That leaves what, in our view, is the crucial point on the appeal identified by Mr O'Brien in his skeleton argument, as follows:"1(1) Where there is evidence of `unfair treatment' which is otherwise not linked by the evidence to race can the tribunal draw an inference that it was race that was the cause".There can be little doubt, on the facts found by the Tribunal, that Mr Watson did not receive fair treatment in the conduct of the appeal before the staff appeal board. It was a very unsatisfactory procedure for new evidence to be introduced on the appeal hearing which was not placed at all before Mr Reynolds or before Mr Watson and his advisers at the original disciplinary hearing. If it was going to be introduced, prior warning should have been given, particularly as it was in the nature of prejudicial hearsay evidence.It is also, we agree with the Tribunal, a matter for criticism that two members of the board left before the hearing had been concluded. There may have been good reasons for them leaving the hearing, but the matter should have been dealt with with more care. At least, Mr Watson and his representatives should have been given an opportunity to make representations as to whether the appeal hearing should continue before fewer councillors than were there at the start of the hearing. If the two had remained the result, which went 3/2 against Mr Watson, might have been different. There were elements of serious unfairness in this hearing. But that was not the issue before the Tribunal on Mr Watson's complaint. He could not, as we have explained, bring a case for unfair dismissal. His case was race discrimination. As pointed out in the case of Chapman v Simon , in various passages cited by Mr O'Brien, a Tribunal must have carefully in mind both the provisions of the Race Relations Act 1976 and the guidance given to Tribunals by the Court of Appeal in that case and in the earlier case King v The Great Britain-China Centre [1991] IRLR 513 . The essential provision of the 1976 Act is the provision that defines racial discrimination,section 1."1(1) A person discriminates against another in any circumstance relevant for the purposes of any provision of this Act if - (a) on racial grounds he treats that other less favourably than he treats or would treat other persons; ...".The cases emphasise that, in order to justify a finding of racial discrimination, there must first be a finding of discrimination: that is, a finding that the complainant has been less favourably treated than the person complained about has treated some other person. Without a finding of discrimination, there is nothing on which to base a finding of racial discrimination.The other area highlighted by the authorities and particularly important in this case, is the circumstances in which a Tribunal can, in a race discrimination case, make an inference of racial discrimination. As was pointed out in King v The Great Britain- China Centre , although it is for the Applicant complaining of racial discrimination to make out his case, it is important to bear in mind that it may be difficult to do that, if all that the complainant can rely on is direct evidence. In only a few cases will there be direct evidence. The outcome of a race discrimination case often depends on what inferences can be legitimately drawn by a Tribunal from the primary facts. The approach of the Courts and the Industrial Tribunals is well established. If discrimination is established on the facts, that is disparate treatment of persons of different race, the Tribunal looks to the employer to explain that treatment. If he does not give an explanation or if he gives an explanation which the Tribunal considers inadequate or unsatisfactory, it is legitimate for the Tribunal to infer that the discrimination was on racial grounds.Mr O'Brien referred us to a number of passages in the case of Chapman v Simon , showing how the Court of Appeal have applied those general principles and those statutory provisions to the facts of that case. In the particular case, the Tribunal reversed the finding of racial discrimination saying that they could not see how it was legitimate in that case to infer discrimination, even if there had been such, on racial grounds. They allowed the appeal and dismissed the complaint of racial discrimination.Mr O'Brien submits that that is what we should do in this case. He reminded us of the primary findings of fact in the decision. The employer did not discriminate in finding that Mr Watson had committed an unlawful assault on a member of the public. It found there was no discrimination in the refusal of the Tribunal to permit Miss Watkins to use comparable cases involving white male employees in assaults. There was no question of statistical evidence indicating that Mr Watson's dismissal was part of a pattern of discriminatory disciplinary acts; that Mr Watson himself wished to raised the issue of character; that the departure of the two councillors made no difference to the outcome and did not invalidate the proceedings. They were for legitimate reasons quite unconnected with race.It was also found that Mr Watson and Miss Watkins, his representative, wanted the matter to proceed and would have made that representation if they had been invited specifically to address the Tribunal on the question of an adjournment. Favourable to Mr Watson, the Tribunal found that the introduction of the unfavourable character evidence, without warning, was unfair to him, but found that, even if there had been a fair hearing, the result was likely to have been the same. He points out that there was no finding by the Tribunal that Mr Reynolds had been influenced by racial considerations in permitting his witness to give this evidence upon the appeal. He had not been so influenced at the original disciplinary hearing conducted before him.There was no finding that the councillor who chaired the meeting was influenced by racial considerations in permitting the character evidence to be given. She gave evidence to the Tribunal. It was never put to her that she was influenced by racial considerations. There was no finding that the councillors who took part in the deliberations were influenced by racial considerations in their deliberations on the question of dismissal. Any finding that there was discrimination, or less favourable treatment, was confined to the procedure which was adopted in the admission of the character evidence and in the continuance of the deliberations in the absence of two of the councillors. The main criticism that Mr O'Brien made of the decision in these circumstances was that the Tribunal had erroneously made an inference which was not supported by the primary facts and that had the effect of converting findings of unfairness into findings of racial discrimination. He pointed out that there was nothing which indicated race, rather than any other factor, as determining the procedure before the Tribunal. He specifically pointed out that allegations of racial influence in the procedure of the Tribunal were not put in cross-examination to the witnesses. He reminded us again that it could not be said on the findings of the Tribunal that the issue of character would have made any material difference to the outcome. On the balance of probabilities, the result of the appeal would have been the same.Those are the detailed points made by Mr O'Brien. His critical submission comes down to a simple point. That is, that the inference of racial discrimination made by the majority of the Tribunal was not a permissible inference from the primary facts unanimously found by the Tribunal. There was not even a finding of discrimination from which an inference of racial discrimination could be made, let alone a finding that any discrimination there was on racial grounds rather than for other reasons. He therefore asks that we allow the appeal and dismiss the complaint of racial discrimination.Miss Hyde has responded to these arguments with a number of points. We agree with her that, in the absence of notes of evidence of the chairman, it was not open to Mr O'Brien to rely on matters which were not apparent from the decision itself. She made that point at the outset of the argument, because, if such matters could be made, she would be at a disadvantage since she was not at the hearing, whereas Mr O'Brien was. An application for notes of evidence of the chairman was refused at an earlier stage.Miss Hyde clearly accepted that the Tribunal did not expressly deal with the need to show less favourable treatment in respect of the finding that the manner in which the appeal hearing was conduced disadvantaged Mr Watson. But she went on to attempt to persuade us that, reading the Decision as a whole, the Tribunal knew that, in coming to this decision, they had to make that kind of comparison. She took us to a number of passages in the decision to support that contention. She made a particular point that the Tribunal were aware, in the passage of the decision in which they excluded the comparables which Miss Watkins wished to introduce, that they had to look to see whether there were comparators more favourably treated than Mr Watson.In those circumstances, it would be wrong to assume that the Tribunal misdirected themselves in relation to the finding of race discrimination. She then pointed to a number of matters which showed that the course taken by the Appeal Board of allowing hearsay character evidence to be adduced, was an unexceptional course. It was one from which the Tribunal could infer that, on the balance of probabilities, such a course would not have been followed if the case before them had been one of a white employee. She reminded us that the evidence was that the hearsay character material had not been put before Mr Reynolds at the initial hearing on 9 September 1991. She took us in detail through Miss Watkins's letter of protest to the Chief Executive of the Council dated 20 November 1991. She also referred us to some correspondence that there was with councillor Graham about the hearing. He was one of the councillors who left before the appeal board made its decision. She made submissions about the point taken by Mr O'Brien on the pleading which we have already resolved in her favour. She addressed the question of matters before the Tribunal intended to show that Mr Watson's race may have been an important factor. She complained that stereotypical evidence had been admitted before the appeal panel which was likely to portray Mr Watson as "an aggressive black man". There was a risk of that having been taken into account in the ultimate decision of the Tribunal. She referred to questions asked by councillors on this point during the course of the hearing. She submitted that the Tribunal accepted Mr Watson's complaint that the hearsay evidence was introduced to paint him in a stereotypical manner. If they had not accepted that there would have been no purpose in their addressing their minds to the lack of adequate explanation from the Council's witnesses as to why and how such evidence had been laid at the appeal hearing for the first time.Miss Hyde concluded her submissions on this part of the case by arguing that, if we thought that there was an error in law in the approach of the Tribunal to this case, it would not be right to dismiss Mr Watson's complaint. The correct course would be to remit the matter to the Industrial Tribunal for reconsideration.Those are the rival contentions. We are grateful to both parties for their careful detailed arguments on the appeal. We have reached the conclusion that the appeal should be allowed and that the case should be remitted, for consideration by a different Industrial Tribunal. The position is that there was no serious issue as to the primary facts. There was a division of opinion about the inferences. The simple question is whether the inferences made by the majority as to the existence of racial discrimination were permissible inferences on the primary facts. In our view, they were not.The Tribunal performed an impermissible act, in making a leap from findings of unfair treatment in the conduct of the appeal board hearing to a finding of race discrimination. They made no clear finding that there had, in fact, been less favourable treatment of Mr Watson than would have been given to a white employee in a similar situation. There was no material on which they could infer properly that there had been different treatment on the grounds of race. That really is the end of the appeal. It is unfortunate that this has happened. The events which gave rise to the proceedings happened in October 1991. It would be tempting to seek to bring an end to the proceedings by giving a final decision one way or the other, but we feel unable to do this. We do not accede to Mr O'Brien's invitation that we should dismiss the complaint. It appears to us that, reading the Decision as a whole, the Tribunal, in considering all the details of the evidence, failed to focus on the essential questions of "was there discrimination and if there was, can it properly be inferred that that discrimination was on racial grounds?"In those circumstances, the only safe course to take is to remit this matter for a fresh hearing by a different Tribunal. They can look at all the evidence again, and decide what inferences, if any, should be made from the facts.We would add two matters for consideration of the parties in making that order. First, both sides seemed to be agreed that there was very little dispute about the facts. We would suggest that, in a remitted hearing, the parties should attempt to agree and place before the Industrial Tribunal, an agreed statement of facts. If any facts cannot be agreed, then it will be permissible for the parties to bring forward evidence, oral or documentary, before the Tribunal reconsidering this matter.We would also mention, that it does appear to us on the undisputed facts that there was unfair treatment of Mr Watson in the manner in which the appeal hearing was conducted. That may well be a point to be borne in mind by the Council in deciding what further steps to take in this matter. What steps they take is entirely a matter for them. But we thought it right to make our views made known on that point. The appeal is allowed and the case is remitted to a different Industrial Tribunal for hearing.