Berry v Ravensbourne (NHS) Trust [1995] UKEAT 578_94_0310

EAT
Berry v Ravensbourne (NHS) Trust
[1995] UKEAT 578_94_0310 · 1995-10-03
MR JUSTICE MORISON: This is an appeal from an Industrial Tribunal held at Ashford which unanimously rejected Mrs Berry's complaint that she had been unlawfully discriminated against on the grounds of her race, she being of Indian origin. The decision of the Tribunal was entered in the Register on 20 April 1994. It related to events which occurred in early 1992, some two years before the four-day hearing before the Industrial Tribunal. By their decision the Tribunal also unanimously held that Mrs Berry had been unfairly dismissed by reason of redundancy. It is only against the dismissal of her complaint of race discrimination that an appeal has been brought. There is no appeal against the finding of unfair dismissal. Since the date of the Decision the Chairman has retired, as has one of the two lay Members.The facts underlying this appeal may be shortly stated and are taken from the Tribunal's decision. Mrs Berry was employed by Ravensbourne (NHS) Trust as a pharmacist attached to Cane Hill Mental Hospital. The then head of her unit had envisaged that as that hospital was closed down and the patients put to live in the community, the pharmacy unit of the hospital would have a continuing role to play in the provision of drugs to those who had or would have been patients, had the hospital remained open. That vision was not entirely fulfilled. At the beginning of January 1992, without prior consultation or warning, Mrs Berry was told that she had been selected for redundancy. She appealed against that decision. The decision was upheld but the appeal panel added a rider and I quote `that every effort must be made to find the Applicant alternative employment'.The effective date of the termination of her employment was on 31 March 1992. At that time Mrs Berry and other employees enjoyed the benefit of Personnel Policy No.18, which was a sensitive and fair policy designed to avoid redundancy by re-deployment, re-training and a restriction on recruitment. However the employers went on recruiting and did not consider that re-training was a viable option for Mrs Berry. The terms of the policy and of the relevant Whitley Council statement are set out in detail in the Tribunal decision at paragraph 4(p) to 4(t) inclusive. The Tribunal found as a fact that during the period of notice three possible jobs became available which were, contrary to the procedure, advertised nationally. In relation to the first job the employers deliberately omitted Mrs Berry from consideration for it. The Tribunal recites the reasons put forward by the employers for this at paragraph 4(v)(1). Mrs Berry discovered the availability of the second job through the national advertisement for it, but was given no proper interview in relation to it because the person concerned had, without prior interview, already decided that she was unsuitable and was not prepared to consider, despite the offer of funding, re-training. The Tribunal recites the employers' case in relation to this job at paragraph 4(v)(2) of their decision. The third position was not regarded by Mrs Berry as suitable for her needs since it was a part-time position.On the basis of the evidence which they heard, the Industrial Tribunal concluded that the employers had acted unfairly towards Mrs Berry and we quote:
"... They did not follow their policies in relation to their guidelines of prevention, consultation, preferential treatment or protected pay awards."
"... They did not make any real attempt to find the applicant suitable alternative employment."... Mrs McNamara and Mrs Macey could have done a great deal more to assist the applicant. In fact they did not assist her at all. They failed to have any dialogue with her during her three months notice except for the specific appeal requested by her and a letter drawing her attention to a part-time position which was sent after the effective date of dismissal."
"... We find that she should have been consulted properly and that consultation may have resulted in a different outcome for the Applicant. We find that she should have been offered the post of the Grade D job [that is the second job] even if only on a trial basis originally."
Having decided that her dismissal was unfair, the Industrial Tribunal then considered her application under the Race Relations Act 1976 . The whole of their decision on this aspect of her complaint is to be found in paragraph 14 of the Decision, I quote:
"Mrs Berry maintains that she was chosen for redundancy and subsequently treated without consideration by the personnel department due to her racial origins. As we have said the applicant was of Indian origin but had lived and worked and been educated in this country since the age of 9. We can find no evidence on the facts before us of any racial discrimination and indeed we believe the witnesses when they say that the question of her racial origin was not considered in their dealings with her. The applicant, herself, is unable to point to any specific instances or draw any specific conclusions from her treatment but alleges it must have been due to her race."
On behalf of the Appellant it was argued before us that this paragraph was unsatisfactory. It does not set out the gravamen of her complaint, which was that the employers were not generally unfair but had been unfair to her in contradistinction to the way they had dealt with certain white persons, who were also in danger of redundancy. She points to the fact that this is a case where the employers have failed to follow their own procedures; that there appears to be no rational basis for her treatment, when compared with white comparators and that the Industrial Tribunal should have carefully considered and analysed the primary facts, from which the Industrial Tribunal should have been prepared to draw the inference that the reason why she had been unfairly treated was on the grounds of her race.For the employers it was said that the Tribunal decision cannot be faulted. That the Industrial Tribunal have found as a fact that the employers were not motivated by race and that that is an end of the matter.We have come to the conclusion that the way the Industrial Tribunal have dealt with the complaint of unlawful discrimination is unsatisfactory. It seems to us that the Tribunal have not applied their minds to the question of drawing inferences, although they have referred to the relevant authorities. An Applicant is entitled to have a reasoned decision and we do not consider that paragraph 14 contains any proper reasoning. As it was put in argument, the Tribunal have rejected the complaint of unlawful discrimination without having identified what was involved in that complaint and without subjecting the complaint and the employers response to it to reasoned analysis. That being so, the choices are stark and unattractive. In the first place we were invited to draw the inference of racial discrimination. We were tempted to do so but concluded that we could not fairly do so without a better knowledge of all the facts. This is the sort of case where a Tribunal could well draw an inference of racial discrimination because subconscious considerations of race may provide the best explanation for the employers' failure to follow their own procedures when dealing with Mrs Berry, as opposed to their treatment of comparable white persons.It is not possible to have the case remitted to the same Tribunal for them to reconsider their decision, therefore the complaint of unlawful racial discrimination must be remitted to a newly constituted Tribunal. That Tribunal will proceed on the basis of the facts as found by the first Tribunal but will be permitted to hear such additional evidence as the parties wish to put before them, solely in relation to the race issue. We are confident that a new Tribunal will be able to perform this somewhat unsatisfactory task in a way which does justice between the parties. They will wish to concentrate on the difference between the treatment of Mrs Berry and that of the named comparators and then to consider whether this is a proper case to draw an inference that despite what may well be honest denials, race was either a conscious or subconscious factor, which differentiated her case from theirs.Therefore, to that extent, we allow the appeal and remit the matter back to a newly constituted Tribunal. We would express the hope that any further hearing in this matter will be dealt with as a matter of priority by the newly constituted Tribunal, having regard to the time which has already elapsed between the events which gave rise to the complaint of unlawful discrimination.