Sampong v London Borough Of Hackney & Anor [1998] UKEAT 343_96_0206

EAT
Sampong v London Borough Of Hackney & Anor
[1998] UKEAT 343_96_0206 · 1997-05-15
MR JUSTICE MORISON (PRESIDENT) : This appeal raises some difficult issues. In essence, Mr Sampong complains that he was not given a fair hearing by the Industrial Tribunal which adjudicated on his complaint of discrimination on grounds of race brought against his former employers, the London Borough of Hackney and a senior officer of the Borough, Mr Ray Michael.It will be convenient first to set out the relevant chronology of events.At the end of 1993 a Mr Boateng persuaded an Industrial Tribunal that he had been unlawfully discriminated against by Mr Ray Michael whilst employed by the London Borough of Hackney. The decision in that case was delivered orally on 21st December 1993.On 25th January 1994 Mr Sampong presented his complaint against Mr Michael under the Race Relations Act 1976 .On behalf of the respondent, the Borough Solicitor denied discrimination and invited the tribunal to fix a preliminary hearing. By letter dated 24th November 1994, the Regional Office of the Industrial Tribunals, London (South), wrote to the parties informing them that a Chairman of the Industrial Tribunals had instructed that the London Borough of Hackney be joined as a respondent to the application. By letter dated 23rd December 1994, the Borough's solicitors stated that they would adopt the same Notice of Appearance as that which they had previously submitted on behalf of Mr Michael.On 20th January 1995 a preliminary hearing took place at the Industrial Tribunal and a date fixed for the substantive hearing of his complaint. One of the purposes of that hearing was to determine whether the Industrial Tribunal had jurisdiction to determine Mr Sampong's complaint having regard to the time limit provisions contained in the Race Relations Act 1976 . In arriving at its conclusion, the Industrial Tribunal noted that Mr Sampong's application contained a complaint that in disciplinary matters Mr Michael treated him less favourably on racial grounds than he treated a comparator who was named as Mr Scheiner; that Mr Michael conspired with another to procure Mr Sampong's dismissal whereas he condoned and connived at similar activities carried out by Mr Scheiner; that Mr Michael failed to carry out investigations which had been ordered to be made "and had continued to do so". Mr Sampong concluded his application with these words:
"As a consequence I have suffered detriment in accordance with section 1(a) [ sic ] and section 4(2) of the Race Relations Act 1976."
At the Industrial Tribunal preliminary hearing, Mr Sampong gave evidence; and he called as a witness Mr Boateng. He provided to the Industrial Tribunal the Boateng decision and an Industrial Tribunal decision on a previous claim which Mr Sampong himself had presented. It was Mr Sampong's contention before the Industrial Tribunal that his cause of action crystallised as at 21st December 1993 when the Industrial Tribunal announced its decision in favour of Mr Boateng. Mr Sampong had previously taken the view that Mr Boateng's complaint stood no reasonable prospect of success and was "dodgy". He also was of the view that there was a risk that Mr Boateng would be sued for defamation having regard to the tone of the respondents' letters which had been sent to Mr Boateng's solicitors. Mr Sampong was asked by Mr Boateng to be a witness in his case, and as a result of Mr Sampong being shown some correspondence by Mr Boateng, he began to believe that he had himself been discriminated against by Mr Michael. Accordingly, he wrote to Mr Michael in May expressing his concerns and asking for copies of documents and reports. His application for documents was refused by the Local Authority on the grounds that as he was no longer employed by them it would be wholly inappropriate for them to supply him with copies of the documents he was requesting. There the matter rested until Mr Boateng's case which concluded on 21st December 1993. Shortly after the oral decision in the Boateng case, Mr Sampong went abroad and returned to this country on 12th January 1994.In giving its written decision containing the tribunal's extended reasons the learned Chairman rejected Mr Sampong's submission that his cause of action crystallised on 21st December 1993. They held that at the very latest Mr Sampong knew by 21st May the basis upon which he believed that there had been racial discrimination. They found that the respondent's failure to provide the information requested was a substantial cause of delay. The tribunal said:
"The fact is that he did not have the information which would have enabled him to form a reasoned assessment of the merits of his claim before commencing proceedings."
And having weighed up the various considerations which a tribunal must take into account when considering whether it would be just and equitable to extend time, the Industrial Tribunal concluded that, having regard to the principles of justice and equity, the application should continue notwithstanding that it was presented out of time.The respondents appealed this interlocutory decision. On 11th July 1995 the Employment Appeal Tribunal dismissed the appeal. Thereafter, there were two interlocutory hearings in November 1995 and December 1995 and the substantive hearing of Mr Sampong's complaint was listed for 29th January 1996. There was a problem about documentation being provided to by the respondents Mr Sampong. When the matter came on for hearing on 29th January 1996 he made an application for discovery without success, and was on that day presented with a very large bundle of documents on which the respondents intended to rely. It contained in excess of 1,000 pages. Not satisfied with the refusal of the tribunal to make an order for discovery, Mr Sampong appealed to the Employment Appeal Tribunal. It was heard on 30th January 1996, but was dismissed and Mr Sampong was ordered to pay a substantial sum by way of costs.The hearing reconvened on 31st January 1996 and was completed on 9th February 1996 when the Chairman read out the decision. The decision with extended reasons in writing was promulgated on 12th February 1996.Mr Sampong presented an appeal against that decision on 22nd March 1996 and there was a preliminary hearing on 24th July. Two arguable points of law were identified.The first point was Mr Sampong's complaint that the Industrial Tribunal wrongly refused to allow him to cross-examine Mr Michael about the Boateng decision. The Industrial Tribunal in the Boateng case were critical of Mr Michael and had upheld the complaint of discrimination on grounds of race against him. At the preliminary hearing at the EAT it was argued on behalf of Mr Sampong that:
"It was not right for Mr Michael to put himself forward as a person with an impeccable record, when he well knew, or it is to be inferred he must have well known, what the Tribunal had found against him and what our own Tribunal had upheld; to the effect that he was not a man of impeccable record, on the contrary, his conduct in the matter of Mr Boateng was deserving of criticism.
That was an important part of the case of Mr Boateng which was accepted, to the effect that he had been discriminated against. Our Tribunal has said as a matter of law that was right, it is of course the fact that the Industrial Tribunal was merely recording their conclusions on evidence which they had heard, which might or might not be correct. Nonetheless, ... that was a matter which should have been disclosed if Mr Michael was to be put forward as a person of impeccable character in race relations matters ... It seems to us though that with [ Mr Sampong's Counsel's ] explanation on instructions of what happened, if indeed there was a failure to allow that cross-examination, that was wrong. It is not for us to say whether that vitiated the decision, but certainly it is a blemish and if Mr Michael was put forward as an impeccable character, either he should have said, or Counsel on behalf of Mr Michael and the Authority should have disclosed, that there was this decision in which he had been criticised in connection with another race relations complaint."The second ground on which the Employment Appeal Tribunal permitted Mr Sampong's appeal to be advanced at a full hearing related to another Industrial Tribunal decision which was promulgated on 22nd February 1996. A complaint had been made against Mr Michael by a Mr Chan and in the Industrial Tribunal's decision they referred to Mr Michael in terms which were plainly critical of his behaviour. Mr Michael did not give evidence in that case but the Industrial Tribunal inferred that Mr Michael had treated Mr Chan less favourably on racial grounds. Accordingly, it was argued on Mr Sampong's behalf that the decision of the Industrial Tribunal in Chan should be received as fresh evidence. The Employment Appeal Tribunal said this:
"We think that a far less arguable point. First of all it is not the decision that matters, but the proper cross-examination of the witness or the proper assessment of the witness on such material as the parties are able to lay before the Tribunal. Bearing in mind that we are giving leave with regard to the contention that cross-examination was prevented about the Boateng case, we think it right to give leave also to urge upon this Tribunal, as a matter of appeal, that the decision of the Industrial Tribunal in Chan should be admitted as fresh evidence, or alternatively that consideration should be given to whether what is said in the Chan should in some way be admitted before this Tribunal and should be considered on the question whether the decision which we are dealing with should stand."
Following that ruling, in accordance with the Employment Appeal Tribunal's Practice and Procedure, the respondents were required to file an answer to Mr Sampong's Notice of Appeal. Essentially, the respondents put in issue the factual basis upon which the appeal had been allowed to proceed. In particular, the respondents made the following contentions:(1) The appellant was not barred from cross-examining Mr Michael or any other witness about the Boateng decision or, indeed, any other matter.(2) Copies of the Boateng decision in the Industrial Tribunal and in the Employment Appeal Tribunal were in the hearing bundles prepared by the respondents.(3) Further, considerable reliance was placed by the appellant on the Industrial Tribunal's decision in Boateng at a preliminary hearing on jurisdiction.(4) Contrary to paragraph 10 of the tribunal's decision, and to what Mr Sampong was asserting, it was not until the afternoon of 2nd February 1996, upon the conclusion of the respondents' evidence, that the tribunal of its own motion raised the question of whether any further reference to the Boateng decision should be permitted during the remainder of the hearing.(5) Despite objection by both the respondents and the appellant, the tribunal ordered that they should not consider the Boateng case further.In the light of these contentions the matter came before me, in chambers, to consider how the appeal should proceed. I directed that the appellant file an affidavit to deal with those five matters and that in his affidavit the appellant should say in what respect he had been prejudiced by the tribunal directing the employer's case to be presented first and why the complaints referred to by Mr Sampong were not raised by him when the matter came before the Employment Appeal Tribunal on 30th January 1996.Pursuant to my order, Mr Sampong swore an affidavit on 21st March 1997 and, by way of reply, an affidavit was sworn by an associate solicitor in Messrs Kingsford Stacey who had the conduct of the case on the respondents' behalf. It is to be observed that there is substantial conflict in the recollection of the parties as to what occurred and the learned Chairman when asked to comment said that he was inclined to prefer the recollection contained in the affidavit on behalf of the respondents, but that as it was over a year since the case was heard he could not attempt to comment on the case in the detail demanded by the affidavits.Because Mr Sampong had criticised the way in which the hearing was conducted by the learned Chairman, again in accordance with our Practice and Procedure, he had been invited to give his comments on the Notice of Appeal. In an undated note which accompanied a letter from the Industrial Tribunal's office of 3rd December 1996, the learned Chairman said this:
"The similarity between Mr Sampong's case and [ Mr Boateng's case ] was that the Respondents in each case were identical and certainly in part of the case there were the same comparator, Nathan Scheiner. There were however a number of differences between the cases:
(1) Mr Boateng was dismissed from the Council, Mr Sampong was not.(2) Mr Boateng and Mr Scheiner had both been guilty of similar acts of misconduct namely failing to declare an interest in a property in which application had been made to the Council for grants of money.The Applicant's claim was based on a much broader comparison namely that Mr Michael was keen to discipline him whereas he was not keen to discipline Nathan Scheiner. ... It seems to us that the decision in Mr Boateng's case gave us no help and was not relevant to our consideration. There was no decision in that case which could be said to have bound us within the res judicata principle which only applies to the same action between the same parties. The fact that another Tribunal dealing with another employee of the London Borough of Hackney was prepared to draw an inference cannot be a factor which should persuade us to draw a similar inference in the case of Mr Sampong.Quite clearly we would be prepared to allow cross-examination of Mr Michael if in the case before us he gave evidence which was at odds with evidence he had given in the Boateng case. And we were quite prepared to allow that. However, the sought of cross-examination which could only lead to the claim "Boateng won his case so should I" appeared to us to have no relevance at all to our decision and therefore we were not prepared to allow cross-examination or speeches upon that issue. I am bound to say that having today reread both our decision and that of the London (North) Tribunal, I can see nothing in that decision which would have persuaded us to adopt it as relevant evidence in our case.Essentially discrimination cases are about perceptions of acts which are often agreed, the observations of the demeanour of the witnesses and the willingness of the particular tribunal trying the case to draw inferences. We made trenchant criticisms of the Council in parts of our decision but that does not mean that a finding of discrimination automatically follows. There are no Notes of Evidence on this topic because evidence was not heard."The appeal came on for hearing before us on 15th May 1997.The Industrial Tribunal decision against which this is an appeal, lasted for 8½ days and commenced, as I have indicated, on 29th January 1996. It is common ground between the parties that the Industrial Tribunal either invited or directed that the respondents gave evidence first. Mr Sampong, who is not inexperienced in Industrial Tribunal cases, had prepared himself on the basis that his case would start first and that he would have the opportunity of opening his case. In the event the Industrial Tribunal heard oral evidence from Mr Michael, a Mr Peter Clark, a Mr Michael Brooks, Mr Michael knew Ms Cathy Warnock and Mr Ralph Patel, and the applicant himself gave evidence and called four witnesses. The Industrial Tribunal also had the benefit of six bundles of documents totalling 1,000 pages.In paragraph 10 of their decision the Industrial Tribunal said this:
"Before the evidence was called we were asked to adjudicate upon two preliminary issues between the parties."
The first issue related to the ambit of the case before the Industrial Tribunal in the light of the earlier interlocutory hearing. In essence, the issue between the parties was whether Mr Sampong was entitled to criticise the actions of officers other than Mr Michael in his claim against the London Borough of Hackney. Mr Sampong had brought an earlier case against a Miss Wendy Collins which had been dismissed, but he sought to use those proceedings to open up the Council's vicarious liability for acts committed by a number of officers other than Mr Michael. The Industrial Tribunal refused that application. They did so on the basis of the decision of the preliminary hearing and held that the hearing was solely concerned with the acts of Mr Michael. They then said this:
"We therefore treated Mr Michael as the discriminator. The role of the London Borough of Hackney being only to become vicariously liable as his employer. It seemed to us that having squeezed through a fairly narrow gate upon which to mount this action Mr Sampong should not be allowed to broaden his action about things which he had known about for many years."
The second application concerned the extent to which the Industrial Tribunal should consider two other cases which had been decided by other Industrial Tribunals. The first was an unsuccessful complaint brought by Mr Sampong against Wendy Collins over his treatment at Hackney Borough Council. The second was the Boateng case. The tribunal referred to the Boateng case in these terms:
"Also an employee called Boateng had brought an action against Hackney Borough Council and they had decided that the Council through Mr Michael had discriminated against him. Mr Michael was a named respondent. The comparator quoted by Mr Boateng was Mr Scheiner and Mr Sampong hoped that if he could show his case was close enough to Mr Boateng's then this case should then be decided in his favour."
The decision on this issue is contained in paragraph 15 of the Industrial Tribunal's written decision and it reads:
"We decided that we should consider neither case. They were not between the same two parties as our case and were not therefore res judicata. Those Tribunals heard different witnesses upon different facts and we did not see how an exploration of facts and findings in those cases could possibly assist."
The Industrial Tribunal then proceeded to deal with the substance of Mr Sampong's complaint. We can summarise the relevant parts of the Industrial Tribunal's decision in this way. Mr Scheiner was manager of the Housing Branch of the Valuers Department. He is white; Mr Sampong is a black Ghanaian. At some date before 6th July 1987, Mr Sampong discovered that Mr Scheiner had been compiling a dossier on him and he took exception to this and invoked the grievance procedure. His grievance was ultimately upheld by the Personnel Committee who directed that five things should be done to redress the grievance. The Industrial Tribunal noted that it took a regrettably long time for those steps to be implemented. In particular the investigation into Mr Scheiner's conduct was never completed because, as the tribunal found, it was overtaken by Mr Sampong's retirement from the Council's employment in February 1992. One of Mr Sampong's complaints related to disciplinary proceedings which were taken against him during the course of his employment. In relation to that complaint the Industrial Tribunal noted that there was an issue as to the correct method of valuing premises. A written instruction was given that a particular method was to be used, which was not the method that Mr Sampong favoured. He refused to comply with that instruction because it was his view that it touched on his professional integrity. Accordingly, in May 1988, disciplinary proceedings were commenced against Mr Sampong by his employers, commencing with a notice of complaint that he had persistently refused to comply with proper instructions to carry out work which was required of him by his job description. Mr Michael was to adjudicate on the formal complaint. Mr Sampong objected to his participation, because Mr Michael had already approved the policy decision as to the method of valuation. Mr Michael's attitude was that as the person concerned was the Council's valuer, he, Mr Michael, though it right to defer to his expertise and that the issue was simply a disciplinary one. Mr Sampong refused to attend the disciplinary hearing and it proceeded in his absence. On 5th August 1988 Mr Michael published his conclusions, namely that Mr Sampong should be issued with a severe reprimand and a warning that further failure to comply with those instructions would be treated as gross misconduct and would lead to further disciplinary action which could result in his dismissal. Mr Sampong appealed that decision, but his appeal was not heard until 11th April 1990. Meanwhile, Mr Sampong still refused to carry out the valuations as the Council were insisting.Before the appeal was heard against the issuing of the severe reprimand, the valuer issued a second notice of complaint accusing Mr Sampong of accumulative and gross misconduct by persistent refusal to obey reasonable instructions. Mr Michael felt that having adjudicated upon the first matter he should not adjudicate again on similar facts. Therefore, the Chief Executive was asked to assign another chief officer to hold the second hearing. That officer was Mr Stewart, the Head of Leisure. Following a hearing he concluded that Mr Sampong should be dismissed.The Appeals Committee considered both the appeal against Mr Michael's decision and the appeal against Mr Stewart's decision. One of the members of the Appeals Committee was a councillor to whom Mr Michael took objection because the councillor had accused him and his department of racism. A substitute councillor was found and the appeal took place on two occasions, on 11th April and 20th April 1990. The Appeals Committee decided, upon advice, to hear the appeal in respect of Mr Michael's adjudication first. They concluded that Mr Sampong had indeed unjustifiably disobeyed instructions but they "reduced the penalty from a severe reprimand to a reprimand because the principal issue was one of professional disagreement". As a result of that, the Appeals Committee felt that they did not need to hear the appeal against the second letter, and reversed Mr Stewart's decision concluding that the matter was not one of gross misconduct which would have justified dismissal but of continued misconduct and dismissal was not possible within the Council's disciplinary code. The tribunal noted that Mr Michael was disappointed by the decision of the Appeals Committee but nevertheless had to accept it and shortly afterwards Mr Sampong returned to work.The then Head of Valuations was replaced by Wendy Collins, who arrived on the scene in early 1991. She issued a notice of complaint against Mr Sampong. He issued a complaint against her to an Industrial Tribunal. Discussions then took place between the parties as to the possibility of Mr Sampong's early retirement and, at the end of February 1992, he resigned on early retirement terms.When the second complaint had been issued against Mr Sampong in 1989, he had been suspended. Another officer of the Council issued a notice ending the suspension because he was of the view that the suspension was being used as some kind of punishment before there had been any hearing. Before that other officer could issue the letter lifting the suspension, Mr Michael intervened and directed that it be intercepted and not despatched. Mr Sampong relies on this incident as showing that Mr Michael was keen to see that he was punished.Mr Sampong sought to compare the way that he had been treated in a disciplinary context with the way that the Council had treated Mr Scheiner. Mr Scheiner was a senior officer in Valuation. He attended a meeting of the Borough's Housing Department in about 1986 in relation to a particular property, and claimed that he was representing his mother who was the owner. An issue arose as to whether it was appropriate for Mr Scheiner to represent his mother bearing in mind his position with the Council. I due course he was instructed that he could not do so. But a year later it was discovered that Mr Scheiner was not representing his mother but was himself the owner of the property; and that therefore he had lied to the Housing Department about his involvement with it. The matter was drawn to Mr Michael's attention in strong terms in February 1988 when an officer complained that this serious matter had not been dealt with. The Industrial Tribunal were critical of way that the Local Authority dealt with this. They said:
"... There is no trace of anything having happened to make any further enquiries or to take disciplinary proceedings against Mr Scheiner. Until five years later. Another employee, Mr Boateng, who had been dismissed for failing to declare an interest in a property in which the Council were involved began unfair dismissal proceedings and race discrimination proceedings alleging that Mr Scheiner had been treated more favourably than he. Panic then gripped the Council. They resurrected the papers and immediately began proceedings against Mr Scheiner, some five years after the event. As a result, Mr Scheiner was demoted by two grades and after three years allowed to retire on a pension relating to his previous grade. Mr Boateng won his case and Mr Sampong asked us to treat Mr Scheiner as a white comparator in this case arguing that Mr Scheiner should have been sacked and that the fact that nothing was done about Mr Scheiner in 1988 whilst Mr Sampong was being disciplined is an obvious example of racial discrimination."
Mr Sampong also relied on Mr Michael's failure to deal with a grievance which he had raised against a fellow employee who Mr Sampong alleged had threatened him with violence and abused him. Mr Michael took the view that this was a storm in a teacup and found no evidence to corroborate Mr Sampong's complaint and therefore did not suspend the other employee. The Industrial Tribunal found as follows in relation to this incident:
"We note at this point that the name of Mr Michael only appears once in this saga and also that the issues between the Council and Mr Scheiner and the Council and Mr Sampong are markedly different. However, we find it less than satisfactory that Mr Michael, being aware that an investigation was going on into the activities of one of his senior officers by a person who was directly responsible to him was not followed up by him, despite the pressures upon him. We cannot accept that an allegation of dishonesty against his head of Housing Valuation could entirely have slipped his mind, although of course, Mr Cornish has far more to answer for in respect of this incident.
Finally, we were asked to consider Mr Michael's record in equal opportunities. He asserted and called evidence which satisfied us that he had an impeccable record in race relations. Hackney is a Borough where very clearly race relations have a very high profile and everybody agreed that he was an excellent manager. He had been active in promoting equal opportunity issues so that disadvantaged persons could obtain more qualifications and had instituted good race relation practices in his department long before others had. He gave us examples of where in similar circumstances to Mr Sampong's case he had dismissed white employees whereas he had only reprimanded Mr Sampong. He was able to demonstrate that even after reprimanding Mr Sampong he took steps to ameliorate the situation by directing that if possible, until the outcome of the appeal, Mr Sampong should not do those cases which had caused a contentious atmosphere. The fact that after a time this became impossible due to the huge backlogs in right to buy cases, did not make any difference."The finding by the Industrial Tribunal that they were satisfied that Mr Michael had an impeccable record in race relations, must have been based in part upon evidence given by Mr Michael New whose written statement was read to the Industrial Tribunal when he came to give evidence. Mr New said this:
"I was shocked to learn that an allegation of racial discrimination had been made against Ray Michael. During my working association with Ray Michael, he has never discriminated against anyone by reason of their colour, nor has he shown favourable treatment to white members of staff. Indeed, during his employment with the Council, Ray played a positive and innovative role in introducing new schemes within his directorate to implement the Council's policies upon equal opportunities, many of which are still in existence today and have been implemented in other directorates of the Council. ... Ray is one of the best managers that I have worked for or with during my working career and I have the greatest respect for him. He is not a racist and in the 14 years that I have worked with him, he has done everything to promote the rights and opportunities of black and ethnic minority staff."
The Industrial Tribunal then record the parties' submissions which were made to them. Mr Sampong's submission was that there was clear evidence that Mr Michael had connived at the activities of Mr Scheiner and was responsible for Mr Sampong's continued suspension. He submitted that Mr Scheiner's offence was obviously gross misconduct but that Mr Michael did not pursue it. Mr Scheiner was a valid comparator because the essence of both cases was the disobedience of instructions (Mr Scheiner had continued to press his claims in respect of his property when instructed not to do so).
"He further complained that Mr Michael had intercepted a letter from [ another officer of the Council ]. He accepted that Mr Michael's interpretation of the Council's rules was correct but claimed that extreme action of intercepting another senior officer's correspondence displayed his extreme keenness to discipline Mr Sampong and his lack of keenness to pursue Mr Scheiner. Similarly Mr Michael's complaint about [ the involvement of the councillor on the Appeals Committee ] was unprecedented in anybody's experience and showed a similar keenness to act against Mr Sampong. He reminded us that Mr Michael had in effect put his character in issue, claiming long and fair involvement in the equal opportunities issues. That he reminded us does not end the matter. Good intentions are no defence to an act of discrimination. Mr Michael's excuse is that he was overworked should carry little weight. A committee had ordered that there be an investigation into Nathan Scheiner, one of his senior officers. He had handed it over to another officer and two years later nothing had been done about it. Similarly, in the case of Mr Scheiner an allegation of dishonesty against a senior officer could not be dealt with by delegating and forgetting it. To use the vernacular the buck should stop on Mr Michael's desk."
Counsel for the respondents submitted that Mr Sampong's application was opportunistic and was being made by a troublesome and litigious employee. There was evidence of Mr Sampong making some 11 other complaints of discrimination during his employment against other members of staff, but none against Mr Michael. It was only when Mr Boateng won case, some 18 months after Mr Sampong had left the Council, that he realised that he might have a case. Mr Sampong having brought three earlier complaints to Industrial Tribunals knew the procedure very well and the fact that he could issue more complaints than anybody else in his department showed that he was not slow to take up grievances. Counsel invited the Industrial Tribunal to draw the conclusion that he had no genuine sense of grievance against Mr Michael on any issue let alone race discrimination. The Industrial Tribunal cases brought by Mr Sampong go back to 1978 and therefore, so it was argued, demonstrate some 20 years intermittent arguments with management. Counsel noted that Mr Sampong did not join Mr Michael in the earlier Wendy Collins case although Mr Michael was her superior there. Furthermore, Mr Michael had known Mr Sampong for a number of years and had never taken out disciplinary proceedings against him. Nor had he authorised any. Counsel further submitted that Nathan Scheiner was not a true comparator. If he were, it would lead to the absurd conclusion that following Mr Boateng's victory in the Industrial Tribunal, anyone who was not a white male Jew and who had been disciplined by the Council could bring an action naming him as a comparator. The similarity had to be much closer than that. Mr Sampong richly deserved the disciplinary treatment he suffered whilst at Hackney Borough Council. Counsel further submitted that even if the Industrial Tribunal found that Mr Michael had treated Mr Sampong less favourably than he treated Mr Scheiner in similar circumstances then looking at the case as a whole Mr Michael's explanations should be accepted and therefore no inference of race discrimination should be drawn.The Industrial Tribunal's decision is contained in paragraphs 57 to 60. We may summarise it in this way. The Industrial Tribunal asked themselves three questions:(1) Could any of the acts relied by Mr Sampong against Mr Michael constitute a detriment?(2) Was there any evidence that the treatment was less favourable than that which was or might have been afforded to a person not of Mr Sampong's race?(3) Were the tribunal satisfied that the explanation for such difference in treatment could exclude discrimination on racial grounds?Their answers to the three questions were as follows. Firstly, they were satisfied that the acts alleged against Mr Sampong could constitute a detriment. Secondly, they were satisfied that there was evidence that the treatment was less favourable than that which was or might have been afforded to a person not of Mr Sampong's race. They observed:
"Mr Scheiner was in the same Directorate, was the Mr Sampong's line manager and the parallel between the two was that each had disobeyed an order. There were of course differences but the similarities were sufficient to bring the comparison within section 3(4)."
As to the third question, the tribunal were satisfied that Mr Sampong had not been less favourably treated than Mr Scheiner on racial grounds. They concluded that Mr Michael was justified in disciplining Mr Sampong in the way that he did; that he was entitled to revoke the letter lifting Mr Sampong's suspension; there was no causal relationship between the investigation into Nathan Scheiner on the one hand and the disciplining of Mr Sampong on the other; the Scheiner investigation was not a disciplinary matter it was a response to a request from the Council originally directed to another officer to carry out an investigation and whilst there was clearly a failure of management to get that done "we cannot conclude that it is caught by the Race Relations Act having regard to the provisions of section 3(4)." Finally they concluded that it was legitimate for either party to an appeal to object to a Councillor sitting on the appeal and that therefore no adverse inference could be drawn against Mr Michael for his objection. The tribunal continued:
"Furthermore even though we believe that Mr Sampong received his just desserts from a serious and continued list of disciplinary offences and misdemeanours, nevertheless the fact that Nathan Scheiner was not disciplined at all until 1993 seems to us to demonstrate that Mr Sampong's treatment was less favourable than that of Mr Scheiner. Mr Scheiner is not of course an exact comparator but the law does not require that. Mr Sampong is right to concentrate not on the precise actions but on the keenness to act against him and the total inaction against Mr Scheiner. That is a serious matter and Mr Michael cannot in our view escape censure for his lack of action against Mr Scheiner who had it not been for the Boateng action would have escaped any action at all for telling a serious lie over a matter in which he had a financial interest."
The Industrial Tribunal declined to draw an inference of race discrimination after very careful consideration on the basis that Mr Michael acted against Mr Sampong only when formal notices of complaint were put to him obliging him to take action whereas in Mr Scheiner's case he was only consulted on the one occasion to approve further investigation. There was no evidence that he took any steps to slow down that investigation or to obstruct it.The final conclusion of the Industrial Tribunal was expressed as follows:
"Whilst therefore we find that there was a difference in treatment, having heard and observed closely some ten witnesses and above all having compared the demeanour and replies of Mr Michael and Mr Sampong we conclude that we do not have grounds for making the inference that the treatment of Mr Sampong by Mr Michael was on racial grounds."
The difficulty to which we eluded at the outset of this judgment stems partly from the dispute between the parties as to what precisely took place at the Industrial Tribunal. We approach the appeal on the basis that the events occurred as Mr Sampong alleges. In short, we approach the appeal on the basis that at the outset of the hearing Mr Sampong was told by the Industrial Tribunal that he would not be permitted to make any reference to the Boateng case. But that said, it is plain from the extracts of the Industrial Tribunal's decision to which we have referred, that the Industrial Tribunal were well aware that another Industrial Tribunal had concluded that Mr Michael had discriminated against Mr Boateng on the grounds of Mr Boateng's race. Manifestly, as the Industrial Tribunal itself noted, there were significant differences between the Boateng case and the complaint raised by Mr Sampong. Although the comparator was the same in both cases, namely Mr Scheiner, in the Boateng case Mr Michael had dealt with Mr Boateng more harshly than he had dealt with Mr Scheiner. Mr Boateng's conduct was different in extent but not in kind from the behaviour of Mr Scheiner. One can well understand in those circumstances that an Industrial Tribunal would be prepared to draw an inference of race when comparing Mr Michael's behaviour in relation to Mr Boateng on the one hand and Mr Scheiner on the other. But it certainly does not follow that because Mr Michael had discriminated against Mr Boateng on the grounds of Mr Boateng's race that it can be inferred that Mr Michael discriminated against Mr Sampong on the grounds of his race. We agree with the Industrial Tribunal that there are significant differences between the two cases. It is to be regretted that the Industrial Tribunal decided, despite the submissions of both parties, that it should not pay regard to the Boateng decision. It is also regrettable that the Industrial Tribunal expressed themselves as being satisfied that Mr Michael had an impeccable record in race relations when they knew that an Industrial Tribunal, upheld by the Employment Appeal Tribunal, had concluded that Mr Michael had acted unlawfully vis-à-vis Mr Boateng. If this Industrial Tribunal were intending to say that because Mr Michael had not been named as a respondent in the Boateng case the finding against him could be ignored, then we would respectfully disagree. Further, as the Industrial Tribunal themselves noted, Mr Sampong was complaining that it was unfair for the respondents to put in evidence Mr Michael's good conduct in race relations matters through, for example, the evidence of Mr New, and deny Mr Sampong the opportunity of cross-examining Mr Michael about his behaviour in that area towards Mr Boateng.We have to be satisfied on an appeal on this sort that there has been a material misdirection by the Industrial Tribunal. That means that the tribunal must have misdirected themselves in law in a material respect. Whilst we consider that their direction as to the use which could be made of the Boateng decision was flawed, we are not satisfied having heard argument that any prejudice has been caused to the parties by that failure. In other words, we are not satisfied that the misdirection was material to the outcome of the hearing before the Industrial Tribunal. For the reasons given in paragraph 59 of their decision it seems to us that the Industrial Tribunal were well entitled to conclude that there were differences between Mr Sampong's case and that of Mr Boateng to justify them in concluding that merely because he had been discriminatory in one case it did not follow that he had been discriminatory vis-à-vis Mr Sampong. There were good reasons, in our judgment, as stated by the Industrial Tribunal for them not drawing an inference of race discrimination. Those findings did not depend upon their earlier finding that Mr Michael had an impeccable record in race relations. Rather it depended upon their finding that although there was similarity between the case of Mr Sampong on the one hand and Mr Scheiner on the other there were sufficient differences to justify the Industrial Tribunal in concluding that there was illogicality in finding against Mr Sampong despite the earlier decision in Boateng .Having read the decision in Chan it seems to us that there is no further material which suggests that Mr Michael could be categorised as a racialist so that whenever he had dealings with an employee one could infer that he was racially motivated against them. We have to say that we consider that Mr Sampong was fortunate in being permitted to present his complaint out of time. It seems to us that the respondents' Counsel was justified in describing Mr Sampong's application as opportunistic. If Mr Boateng had not succeeded in his claim we have no doubt that Mr Sampong would not have brought the present proceedings. In other words, he did not think that he was being discriminated against on the grounds of his race at the time when he had dealings with Mr Michael. Ultimately, we think the Industrial Tribunal was entitled to regard the cross-examination of Mr Michael about the Boateng case as surmounting to no more than a contention that "Boateng won his case so should I". The tribunal were not obliged to relitigate the Boateng case. If Mr Michael had disputed the findings of the Industrial Tribunal all that could be said is that he was not prepared to accept an adjudication against him and that he had been found guilty of discrimination in the past. Neither of those points carries much weight in our view in the light of the material in the Industrial Tribunal's decision. It seems to us in all the circumstances that this appeal should be dismissed because there is no evidence that there has been any material misdirection in the way that the Industrial Tribunal have approached this difficult case.