Marian Nursing Home v Shun [1996] UKEAT 1034_95_2901

EAT

Marian Nursing Home v Shun

[1996] UKEAT 1034_95_2901 · 1996-01-29

JUDGE CLARK :

This is an employers appeal against a decision of the London (South) Industrial Tribunal following a hearing held on 24th July 1995 that the appellant had unlawfully discriminated against the respondent on the grounds of his race. He was awarded £500 compensation for injury to his feelings.

At this preliminary hearing our task is to determine whether or not the appeal raises an arguable point of law which ought to go to a full hearing before the appeal tribunal.

We take the basic facts from the tribunal's extended reasons dated 22nd August 1995.

On 7th December 1994 the appellants placed an advertisement in the Croydon Post for a Night Duty Care Assistant to work at the Home. The respondent's evidence was that he applied for the job by telephone. His name and accent clearly indicated that he was of African descent. A woman answered his call and told him that the job had gone. He then asked a white colleague, Mr Carl Read, to telephone the home and enquire about the job vacancy. A woman answered and Mr Read was immediately invited for interview the following Monday.

On the respondent's complaint of racial discrimination the tribunal accepted that the respondent had not been answered by the Matron, Mrs Singleton. There was an entry for Mr Read's interview in the appellants desk diary written in a different hand to that of Mrs Singleton. However, the tribunal accepted the respondent's account of the telephone call which he said he placed with the Home.

The appellant could not explain the difference in treatment between the respondent and Mr Read. The calls may have been taken by members of staff or even patients. On balance, in paragraph 7 of their reasons, the Industrial Tribunal found that it was a member of staff who rejected the respondent's enquiry.

As a matter of inference the tribunal found that that member of staff had unlawfully discriminated against the respondent, that the appellant was vicariously liable for that unlawful act under Section 32(1) of the Race Relations Act 1976 ; and that the appellant could not rely upon the statutory defence set out in Section 32(3) of the Act in the absence of instructions to staff not to discriminate unlawfully.

This appeal attacks the findings of the tribunal in five ways. First, it is said by Mr McAteer that no account was taken by the Industrial Tribunal of the burden of proof which lay on the respondent to prove his case. Secondly, they took no account of the balance of probabilities requirement in making findings of fact. Thirdly, they failed to inspect the available evidence. Fourthly, the Chairman carried out the bulk of the questioning since the appellants were in person and in so doing overlooked various matters, and fifthly they attack the finding that the appellant was vicariously liable for an employee who behaved in a discriminatory way and in rejecting the statutory defence provided by Section 32(3) of the Act.

Dealing first with the question of burden of proof it is submitted that since the respondent's statement that he telephoned the home and received the reply which he said he did was uncorroborated, and bearing in mind the steps which the appellants take to avoid any discrimination in a workforce which is multi-ethnic, that the tribunal failed properly to apply the burden of proof on the respondent and ought not to have found that the telephone call was made. That really amounts to a complaint of a perverse finding by the Industrial Tribunal. One that no reasonable Industrial Tribunal properly directing itself could come to. In our judgment, that argument is doomed to failure. There was evidence before the Industrial Tribunal from the respondent as to the relevant telephone call. The appellant was unable to directly contradict that evidence. The question for the tribunal was therefore whether or not they accepted the respondent's evidence, they plainly did, they were entitled to do so and that finding of fact cannot be interfered with by this Appeal Tribunal.

Mr McAteer's second point really follows on from the first. That on the balance of probability the Industrial Tribunal ought to have rejected the respondent's evidence. For the reasons given in relation to the first point, we do not think there is any substance in that argument.

Thirdly, the failure to inspect available evidence. Although the appellant was in person, it is for the parties to adduce such evidence as they see fit before an Industrial Tribunal. If they fail to do so, it is not a matter of which they can complain when they come before this Appeal Tribunal.

Fourthly, no doubt the Chairman did, as is often the case, assist an unrepresented party, and carry out some of the questioning. But again, it is a matter for that party to raise any matters by way of cross-examination which seem to him to be appropriate. He cannot simply rely on the Chairman of the tribunal to bring out the whole of his case.

Finally, the question of vicarious liability and the statutory defence. The Industrial Tribunal's finding at paragraph 7 was that on balance they thought that the person who answered the respondent was a member of staff, that is not a finding with which we can interfere, it is a matter of fact for the Industrial Tribunal, and therefore it follows from that finding, that the person who spoke to the respondent was an employee, and one for whom the appellant is vicariously liable under Section 32(1) of the Act.

The final point is in relation to the statutory defence under Section 32(3) of the Act which provides:

"(3) In proceedings brought under this Act against any person in respect of an act alleged to have been done by an employee of his it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing in the course of his employment acts of that description."

The relevant findings of the tribunal are contained in paragraph 8 of the reasons which read:

"8. Mr McAteer for the Respondent asked us to give the Respondent the benefit of the defence contained in section 32(1) of the Act. The Tribunal felt that it could not. Mrs Singleton had openly said that none of the staff had been told that they were not to discriminate against people applying for jobs when they received telephone calls. Clearly Mrs Singleton and the proprietors thought it unnecessary. Equally clearly someone, whether it was a member of staff or a patient, had responded in a way which was unlawfully discriminatory. The Tribunal does note the Respondent is a small organisation with limited resources. However, even a small employer can remind its staff of the obligation on them not to discriminate. For those reasons the Tribunal has refused to allow the Respondent to take advantage of the defence contained in section 32(3) of the Act."

Pausing there, we think the reference to Section 32(1) at the beginning of that paragraph is an error and should be a reference to Section 32(3).

What Mr McAteer says is that all members of staff on recruitment are issued with a manual and in particular an Equal Opportunity Policy which was before the Industrial Tribunal having been annexed to the appellant's notice of appearance. That document provides in these terms:

"When recruiting staff irrespective of grade, ensure that if the prospective candidate is capable of the duties expected of them will employ regardless of:

...

E. Race or colour ..."

He says having laid down that Equal Opportunities Policy the appellant has taken all reasonably practicable steps to prevent unlawful discriminatory acts by the employees of the home. However, the Industrial Tribunal balanced that against the evidence of the Matron, Mrs Singleton, that no steps were taken to inform the staff specifically not to discriminate against people applying for jobs when applications were received by telephone. Mr McAteer makes the point, "well we can't legislate for every possible eventuality" and of course that is true. But it is open to an Industrial Tribunal to hold that simply to issue a one page written statement head Equal Opportunity Policy is not sufficient. It is necessary to embark on a rather more detailed course of training of the staff before it can properly be said that the employer has proved that he has taken all reasonably practicable steps. The question for us is whether or not that finding in paragraph 8 can be regarded as perverse. In our judgment it cannot.

In these circumstances, although it is quite clear from the tribunal's findings that there is no question here of the proprietors of the home seeking to discriminate against ethnic minority applicants, as the tribunal specifically find in paragraph 6, unfortunately, this is a case in which on the tribunal's finding an employee of the home has discriminated against an applicant for a job in circumstances where the statutory defence is not made out. In our judgment these were conclusions which the Industrial Tribunal was entitled to reach given their findings of fact. Accordingly we have no alternative but to dismiss the appeal at this stage.