Sugrue & Anor v Boateng [1995] UKEAT 346_94_2301

EAT
Sugrue & Anor v Boateng
[1995] UKEAT 346_94_2301 · 1995-01-23
MRS JUSTICE SMITH: This is an appeal from the decision of an Industrial Tribunal sitting at London North on four days in December 1993. The unanimous decision of the Tribunal was that the appellants, Mr Sugrue and the London Borough of Hackney had discriminated against the respondent, Mr Boateng, contrary to sections 1(1)(a) and 4(2)(c) of the Race Relations Act 1976 . They ordered the appellants to pay £16,000 compensation.The respondent was employed by the London Borough of Hackney (`Hackney') from January 1987 until his dismissal on 18th February 1992. At the time of his dismissal, he was employed as Directorate Personnel Officer in the Directorate of Planning and Environmental Health. The disciplinary proceedings which resulted in the termination of his employment took place in two stages. The initial hearing at which the respondent was dismissed, described in the appellants' disciplinary code as a Local Officer Hearing was conducted by the first appellant Mr Sugrue and took place on 14th November 1991. There followed an appeal hearing which took place on 18th February 1992. The disciplinary code provided that the contract of employment should continue pending the determination of the appeal. On 16th December 1991, the respondent lodged an originating application in the Industrial Tribunal alleging unfair dismissal and discrimination on racial grounds. The Tribunal refused to hear the claim of unfair dismissal on the ground that the application had been made prematurely, before the effective date of termination of the employment. Accordingly, they heard only the claim under the Race Relations Act .The respondent Mr Boateng is black and is of Ghanaian origin.The tribunal found the following facts. The Personnel Department in Hackney operated within the Directorate of Corporate and Information Services. Within that department, the respondent's immediate line manager was Mr Yeboah, Head of Personnel. For most of his employment, the respondent was seconded to the Directorate of Planning and Environmental Health, where in respect of operational matters he reported to the Head of the Directorate, Mr Michael. The Tribunal found that the Respondent did not have a good working relationship with Mr Michael and believed him to be reluctant to accept a black person as his Directorate Personnel Officer.Under Hackney's `Code of Official Conduct', of which the respondent was aware, there were provisions restricting employees' activities outside their employment. In so far as relevant to this appeal, these were:5.1. The Council does not seek to limit beyond the protection of its own interests the activities of its employees in their own time. However, the Council does require that efficiency and performance of official duties shall not be impaired by paid or unpaid employment outside of the Council's normal working hours. Implicit in this is the requirement that there must be no question of employees undertaking activities in circumstances which might lead to the suspicion of undue favour being granted, or undue or improper influence exercised in relation to contracts or any kind of consent, permission etc which the public may seek from the Council.5.2. All employees are expected to ensure that their private interests and their public duties do not conflict. Individuals will need to consider whether action taken as a result of membership of various organisations such as political groups.........comes into conflict with their duty as Council employees.5.3 Employees should not undertake paid or unpaid outside work if their official duties overlap with their proposed work in a way which will cause a conflict of interest, or which makes use of material to which the employee has access by virtue of their position (eg.........).5.4 Private work should not be undertaken for any person company or contractor who is known by the employee to have a contractual relationship with the Council, or who is seeking work from the Council.In January 1990, the respondent and some Ghanaian friends set up a company called Fast Shipping and Forwarding Company Ltd (`Fast Shipping'). The respondent was a director but was not actively involved in the business of the company. He did not inform his employers of his interest in this company. The tribunal found that this omission was due to an oversight.In March 1991, Albert Nelson, the commercial director of Fast Shipping applied to Hackney for a lease of commercial premises which had been advertised to let. The respondent was named as the proposed guarantor on the application form. The Tribunal found that he was unaware of the company's application at that time.On 28th June 1991, during the routine processing of the company's application, Mr Bynoe, Hackney's Valuation Officer, noticed the name `Kwako Boateng' as guarantor on the application form. He wished to know whether the respondent was the named guarantor, so he telephoned him to ask. The Tribunal found that this call was made while the respondent was busy in a meeting and that Mr Bynoe did not tell the respondent the name of the applicant company. He simply told the respondent that he had the name `Kwako Boateng' as guarantor for an applicant and asked whether he had any knowledge of such an application. The respondent said that he had not.On 27th September 1991, Mr Bynoe informed his line manager, Mrs Collins the Borough Valuer, of the conversation he had had with the respondent. She informed Mr Michael, who instructed her to undertake a company search of Fast Shipping. The search of the Companies Register revealed that the Kwako Boateng who was a director of Fast Shipping lived at the respondent's address.On 28th October, Mr Michael wrote a memorandum to Mr Yeboah, copied to the Chief Executive, in which he set out the Valuation Department's discovery of the respondent's involvement in Fast Shipping. He said that he saw no evidence of any impropriety but he was concerned for three reasons. The first was that he thought there may have been a breach of paragraph 5 of the Code of Official Conduct. Second, it appeared to him that the respondent had denied his connection with the company, which denial he plainly suspected was less than frank. Third, he considered that the respondent's outside activities might have detracted from his work performance. He said that he had discussed the issues with the Chief Executive and asked Mr Yeboah to investigate the matter and inform him what managerial action he proposed to take.On 31st October 1991, Mr Michael arranged a meeting with the respondent, after which, on 4th November, he sent a further memorandum to Mr Yeboah, reporting that the respondent had told him that he knew the `Kwako Boateng' who was a director of Fast Shipping but it was not he. The respondent did not accept the contents of that memorandum as an accurate account of the discussion of that day. The Tribunal did not make any finding as to what was said at that meeting or as to whether the respondent did deny his connection with Fast Shipping. They did not regard the issue as sufficiently crucial.On 5th November, the day after Mr Michael's second memorandum, Mr Yeboah suspended the respondent pending disciplinary proceedings. He wrote to Mr Michael informing him of this decision and concluded by expressing his strong disappointment that Mr Michael should have discussed an operational matter with the Chief Executive rather than directly with him, the respondent's line manager. Mr Yeboah considered that this implied a lack of confidence in him and he considered that the involvement of the Chief Executive was designed to put pressure on him to respond appropriately. Mr Michael quickly replied that no lack of confidence was implied; it was just that he (Mr Michael) had needed the advice of the Chief Executive. The Tribunal considered that Mr Michael's actions had been most unusual.The formal Notice of Complaint against the respondent dated 5th November 1991 alleged two disciplinary offences. First it was alleged that he held a directorship in Fast Shipping in contravention of paragraphs 5.1-5.4 of the Code and that he had not declared this. Second, it was alleged that he had denied his connection with Fast Shipping when questioned about it by a valuer (Mr Bynoe) processing an application from the company.The disciplinary hearing or Local Officer Hearing took place on 14th November. It was conducted by the first appellant Mr Sugrue, the Director of Corporate and Information Services. He found both allegations proved. There is no proper contemporaneous record of the proceedings although on 21st November Mr Sugrue wrote a long detailed letter explaining his decision. The Tribunal do not record the details of his conclusion although it is clear from the letter that he had not accepted the respondent's explanation that he had denied knowledge of any connection with an application out of genuine ignorance. He considered that Mr Boateng had deceived Mr Bynoe. He also thought that Mr Boateng had lied to Mr Michael on the 31st October in saying that he was not the Kwako Boateng who was involved with Fast Shipping. It was the second offence, the deception of Mr Bynoe over the telephone, which he regarded as serious and categorised as gross misconduct. It seems to us, that if Mr Sugrue had been in doubt about Mr Boateng's claim that he had misled Mr Bynoe as the result of an honest mistake, he would have been influenced against Mr Boateng by other evidence of dishonesty, such as Mr Michael's memorandum of 4th November. So far as the offence of non-disclosure was concerned, Mr Sugrue made it plain that he did not consider that the respondent had been motivated by gain but he considered his conduct to be unprofessional and it had created the risk of a conflict of interest. It was the dishonesty which weighed most heavily in his mind.The appeal hearing took place on 18th February 1992 and the dismissal was confirmed.In his Originating Application dated 16th December 1991, the respondent complained:
"My dismissal is discriminatory on the grounds that white officers who contravened the Code of Conduct in similar circumstances were not dismissed."
The appellants' notice of appearance contained a simple denial of discrimination.By letter dated 30 October 1992, the respondent indicated that he would seek to draw comparisons between his treatment and that afforded to white employees who had been disciplined. He sought discovery of the papers relating to employees NS, RH, CP, AD and ML. In the event only Mr NS was treated as a relevant comparator. By letter dated 18th February 1993, Mr Boateng's solicitors explained that they would seek to compare Mr Boateng's treatment with that of Mr NS, who in similar circumstances, had not been disciplined.At paragraph 7(26), the Tribunal say this about Mr NS:
"He is a senior officer in the Valuation Department, more senior in rank than (Mr Boateng). He works under Mr Michael. His undisputed offence is of a far more serious nature than (Mr Boateng's) and he also appears to have played an active role and to have profited from it whereas (Mr Boateng) played no part in the Fast Shipping application and it is accepted by Hackney that (Mr Boateng) did not profit. Yet, although this case was known to Mr Michael and had been under investigation since 1986, no action has been taken against Mr NS. Following (Mr Boateng's) allegation that he has been less favourably treated than Mr NS, Hackney has initiated disciplinary proceedings against him. However, those disciplinary proceedings have not been completed."
In considering that passage, we are concerned that the Tribunal seems to have overstated the case against Mr NS, in particular in describing it as `undisputed' and far more serious than Mr Boateng's case.The information about his conduct came from internal documents, mainly memoranda passing between Council officers during 1986-1988. The gist of the problem was that in 1986, while working as a valuer for the Council, Mr NS entered into negotiations with the Council, in respect of a tenanted property which, being in poor condition, might be the subject of statutory enforcement or compulsory purchase by the Council. He had apparently said that the property belonged to his mother and he was representing her. After some inter-departmental exchanges, in October 1986, he was advised that he ought not to represent his mother in negotiations with the Council due to a conflict of interest.In January 1988, it appeared that he was again involved in negotiations over the property but that he and his mother were now asserting that he was the owner and had been for some years. A memorandum dated February 1988 expressed great concern that NS might have deliberately misled the Council over the question of ownership. It queried whether he ought to be allowed to negotiate on his own behalf in respect of the property and whether disciplinary action should be taken. It was suggested that the question of ownership should be established.There are apparently no further documents in the NS file and it appears that no enquiry was ever made to establish ownership and no disciplinary interview or proceedings took place. Thus although, on the face of it, the case of NS bore a striking resemblance to that of the respondent, involving as it did an element of conflict of interest and an element of concealment, it must be remembered that the case had never been tested.Before setting out the reasons for their decision, the Tribunal referred themselves to the relevant statutory provisions, section 1(1)(a), 3, 4(2)(c), 32 and 33 of the Race Relations Act 1976. They reminded themselves of the guideline cases of King v. Great Britain - China Centre [1992] ICR 516 and North West Thames Regional Health Authority v. Noone [1988] ICR.At paragraph 10 of the decision the tribunal declared that the crucial question for them to decide was whether, assuming the appellant was guilty of the offences as charged, the appellants had discriminated against him on racial grounds in deciding to dismiss him rather than imposing some lesser penalty.Then, at paragraph 12, the Tribunal analysed the differences between the Council's treatment of Mr NS and Mr Boateng. They concluded that the Council plainly treated Mr NS much more favourably. Here they did clearly recognise that the case against Mr NS was only ever a `prima facie' case. They noted that the alleged breach of the Code by Mr NS was of a more serious nature than in Mr Boateng's case; that Mr NS was in a more senior position; that in contrast with the case of Mr NS, there was no allegation that Mr Boateng had profited from his non-disclosure. They contrasted the actions of Mr Michael in relation to two men both in his department. He took no active part in Mr NS's case, whereas in Mr Boateng's case, he had taken an unusually active part. He had raised the case with the Chief Executive and had sanctioned the search of the Companies Register. In NS's case, it appears, the Land Registry was not searched to establish ownership. They contrasted the speed of events. In Mr Boateng's case, the investigation proceeded quickly and within a few weeks, he was dismissed. Mr NS's case had been allowed to drift on for years without any action being taken and the Tribunal thought that the recent commencement of proceedings against NS had all the hallmarks of an attempt at `damage limitation'. They considered that Mr Michael had eagerly and actively involved himself in the complaint against Mr Boateng, but he had not even bothered to find out what, if any, action was contemplated against NS.At paragraph 14, the Tribunal held that Mr Boateng had clearly been treated less favourably by the Council than had Mr NS, a white person, in circumstances which were not materially different. We consider that despite their earlier erroneous description of Mr NS's case as being `undisputed' and much more serious than Mr Boateng's, that conclusion was plainly justified on the evidence. They asked whether they should infer that this was on racial grounds. They recorded that Hackney had not advanced any adequate or satisfactory explanation for Mr Boateng's less favourable treatment. They observed that no other senior employee had been dismissed for a similar breach of the Code of Conduct. They thought that a lesser penalty than dismissal would have been a reasonable sanction in Mr Boateng's case. They considered that both appellants, that is Mr Sugrue and Hackney, were eager to dismiss Mr Boateng and took the opportunity to dismiss him. They drew the inference that the less favourable treatment of dismissal was indeed on racial grounds. They said that they also considered that he had been subjected to a detriment on racial grounds in that he had received less favourable treatment than Mr NS in the disciplinary process.The Tribunal rejected the defence that as the decision was taken by Mr Sugrue, who had no knowledge of the case of NS, the decision to dismiss could not have been tainted by racial discrimination. The Tribunal held that Hackney were vicariously liable for the actions of all its officers. They said that Hackney, Mr Sugrue and the personnel officers had a responsibility to ensure that Mr Boateng was treated fairly and consistently with other similar cases.Mr Thompson's first ground of appeal is that the Tribunal erred in concluding that Mr Sugrue's decision to dismiss had been an act of racial discrimination. The conclusion was said to be illogical. Mr NS was not mentioned at the dismissal hearing; nor was any other comparator. Mr Sugrue was not aware of the circumstances of the NS case. It was submitted that if Mr Sugrue did not know about the NS case, the conclusion that he had discriminated on racial grounds was untenable. He could not have been guilty of discrimination on the basis only that he ought to have found out something that he did not know, which if he had found out, ought to have resulted in him making a different decision.Mr Thompson submitted that no reason was given for the conclusion that Mr Sugrue was eager to dismiss Mr Boateng; nor was there any finding of fact from which that could be inferred. It was accepted that the same could not be said of Mr Michael; there was material to justify the finding that Hackney, in the person of Mr Michael were `eager' to dismiss.Mr Munasinghe did not accept that Mr Sugrue did not know about the case of NS. But if he did not know about it, he must, he asked us to assume have been found by the Tribunal to have been infected by the attitudes of other officers as the result of discussing the background of Mr Boateng's case and becoming aware of its ramifications. We are not prepared to make such an assumption in the absence of evidence or finding.We have asked ourselves first what was the basis of the tribunal's conclusion that Mr Sugrue had discriminated against Mr Boateng. The basis apparent on the face of the decision is that they found that, if he had carried out his duties properly, he ought to have known about Mr NS's case and ought therefore to have known that he had not been disciplined for doing something similar to Mr Boateng.There was before us a dispute as to whether there was any evidence below that Mr Sugrue did in fact know of the case of Mr NS. On his behalf it was claimed that he had said that he did not. The notes of evidence had not been provided for us. Mr Munasinghe declined to admit that Mr Sugrue was unaware of the case of Mr NS. However, we think a clear inference is to be drawn from the decision. We think the tribunal found that Mr Sugrue did not know of the case of NS but thought that he ought to have done.If he did not know of the case of NS and if no other comparators were placed before him, as they were not, we find it hard to understand the logic of how it could be said that Mr Sugrue had discriminated against Mr Boateng. We accept Mr Thompson's submission that Mr Sugrue's failure to find out about something of which he was unaware, cannot logically lead to the conclusion that he had treated Mr Boateng less favourably than the person about whom he failed to find out. Discrimination or `less favourable treatment' implies knowledge of both sets of circumstances. It does not necessarily imply a conscious decision to treat one person less favourably than the other. But the person who discriminates must at least be aware of both sets of facts.We would not wish it to be thought that we disagree with the part of the decision in which the tribunal say that it is incumbent upon a man who is about to conduct a disciplinary hearing to find out from the Personnel Department what is the usual range of sanctions for the type of case he is about to hear. Also, we agree with the observation that an organisation such as Hackney ought to ensure that their Personnel Department disseminates appropriate information to officers who are to carry out disciplinary proceedings so as to ensure a proper degree of consistency of treatment. There is no evidence that Mr Sugrue sought or was offered any such information in this case. It may be that if this had been an unfair dismissal case, his failure to seek information on the usual tariff of penalties would have been a legitimate ground of criticism. But we do not see how the failure of Mr Sugrue to obtain such information (always assuming that it existed) could lead to the conclusion that he had treated Mr Boateng less favourably than anyone else.Before concluding that the tribunal had erred in their finding against Mr Sugrue, we considered whether their conclusion might have been based, and properly based, upon their finding that Mr Sugrue had been eager to dismiss Mr Boateng. It seemed to us that that finding could only have been based upon their conclusion that Mr Sugrue had treated Mr Boateng harshly.That conclusion appears at paragraph 9, where the Tribunal observed that much of Hackney's evidence had been directed towards proving that they had acted reasonably in deciding that dismissal was the appropriate penalty. This, they said, was not the crucial issue in a race discrimination case. They considered however, that if this had been an unfair dismissal case, they would have concluded that the penalty of dismissal was outside the range of reasonable responses and was too harsh a penalty for a reasonable employer to have imposed. It seems to us that the Tribunal's conclusion that Mr Sugrue was eager to dismiss was probably based on their finding that he had imposed too harsh a penalty.We are puzzled by this passage and feel bound to say that if Mr Sugrue's conclusions as to Mr Boateng's dishonesty were not susceptible of challenge, dismissal must have been one of the options open to him. It seems to us that the Tribunal have criticised the penalty in the light of their own view of the facts rather than Mr Sugrue's. The Tribunal thought that the failure to disclose an interest was due to an oversight. Mr Sugrue did not. Also the Tribunal appear to have thought that Mr Boateng had no intention to deceive Mr Bynoe. We know that Mr Sugrue thought he had. In other words, the Tribunal regarded Mr Boateng's actions as a not very serious breach of the Code of Conduct for which dismissal was far too harsh.They would, in our view, be entitled to consider the matter in that way if they found that Mr Sugrue had been biassed or unfair in his conduct of the hearing or if they thought that he had been misled by Mr Michael's memorandum into finding Mr Boateng to have been dishonest. However, there is no mention of Mr Sugrue's conduct of the hearing and the Tribunal expressly declined to make a finding as to the truth or falsity of Mr Michael's account of what Mr Boateng said on 31st October. In those circumstances, we do not think it was open to the Tribunal to criticise Mr Sugrue's penalty as being unduly harsh. It follow that we cannot see any basis for the inference that Mr Sugrue was eager to dismiss Mr Boateng.As will have appeared, we consider there is much force in Mr Thompson's submissions in respect of Mr Sugrue. We consider that the tribunal's conclusion that he discriminated against Mr Boateng, whether on the grounds of race or at all, was logically flawed and not based upon their findings of fact.Mr Thompson submitted that if we were to find that the Tribunal's finding of racial discrimination by Mr Sugrue could not stand, it would follow that there was an end to the case against Hackney. He submitted that it was only Mr Sugrue and his decision on penalty that had ever been `in the frame.' The finding against Hackney was based only on their vicarious liability for the actions of Mr Sugrue. He pointed to the passage in the decision in which the Tribunal say that the crucial question for them to decide is whether in imposing the penalty of dismissal, the respondents treated Mr Boateng less favourably on racial grounds. He pointed to the Originating Application in which the complaint was that the dismissal was discriminatory on the grounds that white officers who contravened the Code of Conduct in similar circumstances were not dismissed. Mr Thompson submitted that that demonstrated that the complaint had been limited to the harshness of the penalty imposed.He relied on the case of Chapman v. Simon 1994 [IRLR] 124, as authority for the proposition that an industrial tribunal must confine its findings of racial discrimination to the act or acts of which complaint is made. Of course we accept that that is so. But we do not accept the submission that this complaint was limited to the imposition of the penalty of dismissal and we do not accept that it was only Mr Sugrue's actions which were under examination. We consider that, as used in the originating application, `dismissal' is a term wide enough to encompass not merely the imposition of a penalty but the whole disciplinary process. That the case was to be put in that way was made clear by Mr Boateng's solicitors in their letter dated 17th February 1993, in which they made it plain that the comparison which they would seek to draw was with Mr NS. The basis of that comparison was that Mr NS appeared to have committed a very serious breach of the Code of Conduct but no disciplinary action had resulted.We see the force of Mr Thompson's reliance on the way in which the Tribunal set out their `crucial question.' We think that although they said that, it is plain from their detailed examination of the differences in treatment between Mr Boateng and Mr NS that they were in fact comparing the whole disciplinary treatment of the two men. We think they were entitled to do so. Indeed it would be quite artificial if an employer who allowed one employee to escape any discipline for an alleged offence but dismissed another for similar conduct, could escape the conclusion that he had treated the one less favourably than the other on the basis that it was not possible to compare the penalties.The reality of this case is that Mr NS was treated far more favourably than Mr Boateng, as the Tribunal found, in that on the basis of similar allegations, one was speedily disciplined and dismissed and the other was allowed to carry on. There was an abundance of evidence that the conduct of Mr Michael, who was fully aware of the circumstances of both cases, was markedly different in the case of Mr Boateng than it had been in the case of Mr NS. The Tribunal plainly thought that Mr Michael pushed for Mr Boateng to be disciplined.Given the difference of race between the two men, the Tribunal considered what inferences should be drawn. They held that there was no adequate explanation for this difference in treatment. So far as we are aware, there was no explanation at all for the difference in treatment between Mr Boateng and Mr NS. Indeed, the belated commencement of proceedings against Mr NS gives every appearance of an acknowledgment that there was no such justification. Mr Thompson submits that Hackney never had the opportunity to offer an explanation of this as the case was all focused upon Mr Sugrue's actions. If they had thought that the issue of different treatment over the whole disciplinary process were to be under discussion, they would have called evidence to show that it was due to incompetence that Mr NS had not been disciplined. It may be that Hackney did focus on Mr Sugrue but if they did they must take the consequences of that. After receiving the letter of 17th February 1993, they could have been in no doubt as to how the case was to be put.In our judgment, this was a case in which the Tribunal was clearly entitled to draw the inference of racial discrimination as a matter of common sense. In our judgment they erred in finding Mr Sugrue personally to have discriminated against Mr Boateng, but we are satisfied that their conclusion that Mr Boateng's dismissal was an act of racial discrimination was one which they were entitled to reach and which was indeed plainly right. Their finding against Hackney was not based on the vicarious liability of Mr Sugrue; it was based on the actions of other officers, especially Mr Michael.We turn now to the appeal on the assessment of compensation, which is almost uncontested.The tribunal ordered compensation of £11,000 for loss of earnings and £5,000 for injury to feelings. They said that the loss of earnings far exceeded £11,000 but they had to apply the statutory limit. They mistakenly thought that the statutory limit on compensation imposed by Section 56(2) of the Race Relations Act 1976 and Section 75 of the Employment Protection (Consolidation) Act 1978 was, at the material time, £11,000. In fact at the material time, the date of dismissal in February 1992, it was £10,000. The Tribunal also mistakenly thought that they were entitled to award a sum for injury to feelings over and above the statutory limit. Mr Munasinghe accepted that they could not. Thus the maximum available award in this case is £10,000.Mr Thompson also contended that £5,000 for injury to feelings was manifestly excessive. He pointed out that the tribunal had not given any reason for saying that they regarded the case as meriting an award at the higher end. The award for injury to feelings is essentially an exercise of the Tribunal's discretion. We see no reason to suppose that they have misdirected themselves. In any event, a modest reduction in the award of injury to feelings could have no effect on the overall award, in view of the tribunal's observation that the loss of earnings was well in excess of £11,000.The result is that this appeal is allowed to the extent that the order against Mr Sugrue, the first appellant, will be quashed and the order against Hackney, the second appellant will be varied so as to reduce the compensation payable from £16,000 to £10,000.