Augustus v Forestdale Hotels Ltd [1995] UKEAT 540_94_0711

EAT
Augustus v Forestdale Hotels Ltd
[1995] UKEAT 540_94_0711 · 1995-11-07

JUDGE HULL Q.C. :

Mrs Augustus, the appellant to us, and the complainant before the Industrial Tribunal, is a lady in middle years. She apparently came in the first place from St Helena, in the South Atlantic, and she has apparently said, and it is accepted, that she is a person of mixed race, although if she had not said so it would be far from obvious. The Tribunal thought that there was no sign that she was of any particular race, as they put it.She brought a complaint against her employers, Forestdale Hotels Ltd. She was employed by that organisation at Lyndhurst Park Hotel, Lyndhurst as a laundry operative or laundress. She began work with them on 23rd August 1993 and she stormed out, as she put it, on 17th September 1993, after an incident involving her daughter Karen who had come to the hotel.She made complaint to the Industrial Tribunal, which sat at Southampton under the Chairmanship of Mr Hollow on 6th April 1994, that she had been subjected to detriment on the ground of her race, that there had been racial discrimination against her in the way that she was treated. Her predecessor in the job had been a young woman called Teresa Way, and that young woman stayed on and did work with Mrs Augustus for the first week of her employment. Mrs Augustus detected various ways in which, she thought, Teresa Way had been treated, or was being treated, more favourably than she was. Those matters of which she made complaint were all, or almost all, subject to some sort of explanation which might very well be an entirely reasonable one, or might not. But at any rate she made that point.Over-arching all this was a general complaint, and one which she made repeatedly and with details, that she was throughout this very short period of employment subjected to continual criticism, carping, harassment, and she said, "I believe that is because of my race, I am a person of mixed race from St Helena, and I believe that is why I was treated in this way. Miss Teresa Way was not, she was a native born English person." So that was the general nature of her complaint, and depending on one's point of view, it might be said to be a very flimsy affair, or it might be said to be a serious affair. Clearly it would be serious from her point of view that she felt impelled to make these complaints. There was one remark made to her daughter, on the day that she left, which did suggest that the lady who made it, who I think was the assistant housekeeper, had a feeling of racial dislike. She apparently said in the course of or after a row, "Bloody foreigners!" or words to that effect. But that was not said to the applicant and not said during her employment. That was the complaint that she made to the Industrial Tribunal.It seems to us that a very important point here is that Mrs Augustus is not, of course, a young person, young people are sometimes irresponsible or fanciful; she was an experienced laundry operative. She had worked for these respondents in other hotels for very substantial periods. She had worked, according to the Tribunal, from 1977 to 1989, a period of 12 years, at two hotels nearby owned by the respondents, in Brockenhurst and in Southampton. She said that her long period of employment there, doing this not terribly exalted and not terribly pleasant or easy work, had been pleasant and satisfactory; she had got on perfectly well with everybody there. That is a very important matter if one is considering fact. Of course we do not have to consider facts, but this was not a complaint by somebody of no known background, somebody who might be malicious, somebody who might be very eccentric or something of that sort. It was a complaint made by a person whom the employers knew perfectly well as a responsible and satisfactory employee over a long term; and then she had started this new employment. Why should she, having always apparently been a satisfactory employee and a satisfied employee, have found this three weeks so intolerable as she said she did? Of course it may be that what she complained of was merely the instruction and correction necessary at the beginning of a job, because this was a hotel where she had not worked, certainly not worked for some time. So it might well be that management methods had changed, that it was necessary to ask her to change her way of going on. It might have been necessary, so to speak, to teach the old dog new tricks, but there it is. That was the nature of her complaint.So we look to see how the Industrial Tribunal dealt with it. They heard her, and in their conclusions they say that a submission was made to them, so to speak, at half-time, having heard the evidence for the applicant. They deal with it in this way, to which our attention has been particularly invited.:
"22. Having observed the Applicant and her daughter give evidence, we have formed a view on the complaints which the applicant has put before the Tribunal. We think that the Applicant's complaints of criticism and harassment at work are overstated and, in reality, amount to nothing more than a normal and reasonable instruction of an employee by management. Apart from the incident on 17 September 1993, [ that is the last day of employment ] there is nothing in the Applicant's evidence which amounts to a clear suggestion of any form of racial abuse and we do not think that we could reasonably and properly infer from the evidence that the criticism was motivated on racial grounds. ..."
They go on in paragraph 23 again saying that there was no clear evidence of a requirement to clean the laundry room and they say that there is no clear evidence that the employers refused or intended to deny her her contract of employment and statement of terms.So they acceded to the submission, saying that although they had heard all this evidence, they thought that it was not clear, they did not think they could reasonably infer from that that the criticism was motivated on racial grounds. They took the view of the evidence which I have mentioned as the possible alternative view.Various criticism of detail, as I say, are made of that. The authorities are quite clear on what should be the approach of an Industrial Tribunal in these circumstances. The fact is that the Industrial Tribunal is not like a Court of Law, in at any rate in one important respect; it is charged with the duty of enquiring. It does not have strict adversarial rules that apply for all purposes in our Courts of Law. Therefore, it is able to act in rather a different way, and sometimes is required to act in a rather different way. The case of Owen & Briggs v James is cited to us, and there are a number of cases really to substantially similar effect. This was a case in which a young woman of colour answered a newspaper advertisement, and complained that she had been discriminated against in not being offered the job which was advertised. The Industrial Tribunal rejected the potential employers' submission of no case to answer, and this Tribunal, sitting under the Chairmanship of Slynn J (as he then was), said:
"... adopting the same principle as in cases under the Sex Discrimination Act 1975, it would only in exceptional cases be right for an industrial tribunal to find at the end of the applicant's case that there was no case to answer and that it was not necessary to hear the respondents; and that, in the light of the evidence before the industrial tribunal, it would have been wrong for them to have acceded to a submission of no case to answer. ...
(2) That having regard to the difficulty of finding direct evidence of discrimination in cases where discrimination on the ground of race was alleged, an industrial tribunal had a duty to look behind an employer's denial to see whether the correct inference from the evidence was that the employer had been guilty of discrimination; that the industrial tribunal were entitled to draw inferences of discrimination and that in the circumstances they had correctly held that the applicant had been unlawfully discriminated against on the ground of her race contrary to the Race Relations Act 1976."The potential employer had made a remark which was certainly capable of suggesting a racial motive in his mind. At page 383 they cite from certain of the authorities. They say at 383G:
"It is for the industrial tribunal to investigate all the reasons which are put forward and to see whether there has been discrimination."
At page 384C our Tribunal said, dealing with the submission of no case to answer:
"That, it seems to us, on the evidence which was before the tribunal at the stage when the applicant's case was closed, is wholly untenable. The evidence of the second girl who went for interview, about what the partner had said, in our judgment quite plainly called for an answer on the part of the firm. We have said on a number of occasions, both in relation to applications under the Sex Discrimination Act and in relation to applications under the Race Relations Act, that it will be an exceptional case when an industrial tribunal is entitled to stop the proceedings at the conclusions of the applicant's case. There may be a case which is perfectly hopeless. But, because of what we see to be the approach that ought to be adopted by industrial tribunals in theses cases, it seems to us that an answer will normally be required from the respondent, and that cross-examination of the respondent's witnesses may be an important part of the case."
The authority of that case is not questioned. Mr Patel accepted a way of formulating it, which I put to him, like this: If the Tribunal feels able to say at the end of the applicant's case, "this case is simply not being brought in good faith, there is simply nothing here at all, we think that the evidence given to us by the applicant is untrue"; or, "we are satisfied that there is nothing which could possibly amount to discrimination or discrimination on account of race"; that would be the sort of case (it would obviously be a rare case) where the Tribunal could say "there is here no case to answer, and we must not trouble the respondent, we will not hear any more."But it is clear that in the case with which we are dealing that that was not the view of the Tribunal. They did not say "these complaints are not being made in good faith", they say "they are overstated, and we think that they amount to nothing more than a normal, reasonable instruction." And, says Mr Patel, of course at the end of the case they would be entitled to say that, having heard all the evidence, but the fact is that here there was evidence which (unless it was rejected as being entirely fanciful, or not given in good faith) was evidence that she had, on the face of it, been treated badly whereas previously she had had nothing of the sort to complain about of in a long history of employment by the same company. That, he said, was just the sort of case where the Tribunal should have continued to hear the rest of the evidence, and not acceded to a submission of no case.Mr Broom who appears for the employers, puts it very shortly, having referred us to Coral Squash Club v Matthews [1979] ICR 607 which we have looked at. He says that here all the matters which were raised by the applicant were considered by the Industrial Tribunal, and they are the same matters which are being raised before us here. He said that the Tribunal concluded that the applicant had not shown less favourable treatment, and unless she shows that, her case does not begin. She has got to show that she has been treated less favourably, on the ground of her race, and unless she can show she has been treated less favourably, of course logically the case does not begin, and the Tribunal is under no duty to go into the question of discrimination.We can see the force of that logically. But the fact is that Mrs Augustus had given the plainest evidence which, if accepted, showed that she was being treated in a very strange way, she was being harassed, and so forth. They treated her in a way to which she was quite unused. On the last day of her employment this remark was made, which might possibly show that the lady who made it was indeed motivated in some way or other by feelings of race. That might be the explanation of what Mrs Augustus was complaining of.We are all of the opinion that the complaints made by the appellant in this case were not so obviously untenable, so fanciful or so dishonest (the Tribunal certainly did not find that they were dishonest) that they could be dismissed out of hand on the basis that they might very well be dismissed after the Tribunal had heard all the evidence. They raised a case where this lady said that she had been treated in a very strange and very unfortunate way. We think that the Tribunal, having heard that evidence, should not have made up their minds about it in the sense of saying: well really we think that it is rather overstated and exaggerated, and it really does not add up to anything, except the ordinary give and take that has to accompany a new employee's employment. They should have gone on and said: No, we propose to hear all the evidence in this case. Having heard it they might have reached precisely the decision which they did. They might have said, having heard the employers, "we are entirely satisfied about the reasons why they found it necessary to give a large number of instructions, we are entirely satisfied with the explanations given for any difference of treatment between Mrs Augustus and this young woman Miss Way." But that they could only say after hearing all the evidence, having regard to the approach to these cases which has been so repeatedly enjoined by this Tribunal, which is based perhaps more on public policy and the policy of the legislation, than on any analogy with the way in which courts normally proceed. We think that this Industrial Tribunal should have followed those authorities and should have gone on to hear the whole of the case. We would not venture to say whether they would have reached the same conclusion that they did, or a different conclusion. They thus deprived Mrs Augustus, through her advocate of course, of the opportunity to cross-examine any witnesses they chose to call, and they invited the Tribunal to reach a conclusion at a stage at which we think they should not have been asked to make up their minds about what they had heard so far.In those circumstances we think that the matter should be remitted to a Tribunal differently constituted to hear the matter anew; and to try it in of course in such a way as they think right, to arrive at the truth of the matter and the complaint which is made to them. To that extent we allow the appeal.