MRS B E GREEN v WELLCARE NURSING HOMES LTD [1999] UKEAT 1131_98_2206

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 1131_98_2206Case No Appeal No. EAT/1131/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS B E GREENAPPELLANTWELLCARE NURSING HOMES LTDRESPONDENT
Before
His Honour Judge J AltmanLord Davies of CoityDate 22 June 1999
[1]APPEARANCES For the Appellant MR E GRANT (REPRESENTATIVE) Northern Complainant Aid Fund Check Point 45 Westgate Bradford BD1 2TH For the Respondents MS M ANDERSON (REPRESENTATIVE) Peninsula Business Services Ltd Advocacy & Litigation Department Stamford House 361-365 Chapel Street Salford Manchester M3 5JY JUDGE J ALTMAN: This is an Appeal from the decision of the Employment Tribunal sitting at Liverpool on 19 th March 1998 and in Chambers on 5 th June 1998, presumably when the members and Chairman met to reach their Reserved Decision. The Employment Tribunal found that the Appellant was constructively and unfairly dismissed but that the claims in relation to breach of contract and racial discrimination failed and were dismissed. The Appellant appeals from the dismissal of the complaint of racial discrimination. A very brief history of the matter is worth noting. The Applicant was an employee of the Respondents from February 1992 until October 1997 when she left with notice intimating a claim for constructive dismissal. Not long before, the Respondents had undergone some reorganisation and change of ownership. On 12 th December 1997, a complaint of constructive dismissal simplicitor was presented to the Tribunals. On 18 th December, another application was received at a time when the Appellant was receiving advice from other representatives who now appear before us in the shape of Mr Grant, alleging additionally, unlawful discrimination on the ground of race. An enlarged complaint was made in the form of a witness statement running to some 3 pages referring to a number of incidents which took place during the course of employment and masses of complaints of the way in which the Appellant received treatment at the hands of her employers which, putting it globally, she complained, undermined her position, demoted her, changed the work content of her employment to cut out administrative responsibilities and deprived her of certain benefits, particularly in relation to a company car.[2]In its decision, the Tribunal set out a very detailed analysis of their findings of primary facts, having first of all, directed themselves to the statutory provisions relating to both unfair dismissal and unlawful discrimination on the ground of race and also, referring to important legal authorities on those matters. Having dealt with the various findings of fact, many of which on a factual basis, were found against the Respondents, they came to the conclusion, at the end of the decision, that there was a constructive dismissal. They say this:
"The position which she had previously occupied, apparently without difficulty, was effectively undermined by the way in which she was, in more recent times, treated by the Respondents."
[3]They then go to deal with the remaining matters and it is worth quoting the decision of the Tribunal in full. "In relation to the claim of alleged racial discrimination our task as a Tribunal is to look at the evidence as a whole and to decide whether the Complainant has made out her case. What she has to show is that it is more probable than not that she was less favourably treated than other persons were or would have been on racial grounds. One has to remember that direct evidence of discrimination on this ground is rarely going to be available. So the evidence of discrimination will normally consist of inferences to be drawn from the primary facts. There are three questions to be asked. First, has the Complainant been "less favourably treated" than other persons? Secondly, is there a difference of race? Thirdly, was there less favourable treatment of the Complainant on racial grounds?"[4]And then, having pointed out that the intentional prejudice of the Respondent is not a necessary ingredient, they go on to say this:
"However, the Complainant should not fail simply because there is no evidence of ill will or prejudice. Having carefully considered all the evidence the Tribunal is not satisfied that the Applicant succeeds on this ground. There is not sufficient evidence available for it to draw the necessary inference. Therefore, that claim fails."
[5]In his submissions to us, Mr Grant has pointed out that there were allegations, as he would describe it, of racial discrimination or of the facts from which such an inference could be drawn. He refers, first of all, to the change in availability of a motor car. The Appellant had a motor car which the Tribunal found was taken from her and she was given the opportunity of a pool motor car. But effectively, she was denied the use of it on the finding of the Tribunal and it became used by the Company Surveyor "with the Applicant no longer, for all practical purposes, having access to it or control over it."[6]In para 2 of her second Originating Application, the Appellant, in describing this incident, described her liability to pay tax which the white users did not have to do. Mr Grant complains that there was no finding of less favourable treatment in relation to that incident and he says that the Tribunal should have so found it. The point is made in relation to this and other matters that on the statements before us and the Notices of Appearance, no comment was made by the Respondents, but we do not have the benefit of the Notes of Evidence in this case, because quite properly, they were never asked for. We do not know what the evidence was or the answers were of the Respondents to particular allegations before the Tribunal. Simply because a matter is not dealt with in a Notice of Appearance or, indeed, a Witness Statement, is not fatal to the proposition that Respondents did provide an answer before an Employment Tribunal. It would be an unduly onerous requirement, it seems to us, to say that a Respondent was not permitted to raise at an Employment Tribunal matters of fact that had not been specifically stated in witness statements or in Notices of Appearance, and therefore, it would be wrong to draw an inference at this level from its absence from some of the evidence without knowing what the oral evidence was.[7]The second matter was a curious incident in which the Tribunal found that Mr Litten, the person in charge of her, offered her £7,000 for her amicable departure from the home. That appears to have taken place alongside the fact that the Appellant was never disciplined for misconduct or challenged about her capabilities in relation to the work she was supposed to do. There may have been a number of reasons for that, as Mr Grant says, but if it was a clash of personality between her and Mr Cox, who supervised her, why was she being offered money to leave rather than Mr Cox? One could well imagine a very good answer to that question, but Mr Grant says that should have been asked by the Tribunal.[8]Thirdly, there was the introduction into the home of a home manager, Mrs Harding, who had been a matron at another home together with a deputy matron; two new appointments ostensibly to improve the management of the home and to relieve the Appellant to concentrate on nursing and not administrative tasks. But the Tribunal found as follows:
"… that the chain of command, the boundaries and responsibilities as between that post and Mrs Green's post as matron were not …clearly defined, leading to both confusion and, rather more significantly, to a feeling on the part of the Appellant that her position was being undermined."
[9]Mr Grant says that in relation to that the Tribunal should have asked themselves what real explanation was there for doing that, although it seems to us that the finding of the Tribunal was that the explanation was confusion.[10]Then there was a further matter in relation to that which was that the appointment of those people, particularly the deputy matron, was not something that involved the Appellant or for which she was allowed to compete and the Appellant had drawn attention to the fact, in her Originating Application that the post was filled by someone who was white, namely Mrs Harding.[11]Then there was an incident where two patients were assessed, not by the Appellant but by Mrs Harding and the Deputy Matron, the two new employees at the home where the Appellant worked. The Tribunal accepted that by her being sidelined in relation to this incident, there was a further "significant undermining of her position and authority".[12]Those four matters have been drawn to our attention by Mr Grant as matters in relation to which it is said there was an obligation as to the Employment Tribunal to consider whether the Appellant suffered less favourable treatment than other people, and then to go on, in the event of there being less favourable treatment, to consider whether or not it was on racial grounds. The people identified, in relation to those matters, were the surveyor in relation to the motor car to which I referred; Mr Cox in relation to the choice of the Appellant rather than him to be on the receiving end of an offer to leave with £7,000; Valya Harding in relation to which there was no opportunity for the Appellant to apply to that post; and the deputy matron who was involved in assessing two patients in relation to which the Appellant was sidelined and not involved.[13]We have considered the authorities to which we have been helpfully referred in this case. The first one is Chapman & Anor -v- Simon , [1994] IRLR 124 and in particular the Judgment of Lord Justice Peter Gibson. In the Judgment at page 129 he says this:
"Racial discrimination may be established as a matter of direct primary fact…. More often, racial discrimination will have to be established, if at all, as a matter of inference. It is of the greatest importance that the primary facts from which such inference is drawn are set out with clarity by the Tribunal in its fact finding role, so that the validity of the inference can be examined. Either the facts justifying such inference exist or they do not, but only the Tribunal can say what those facts are. A mere intuitive hunch, for example, that there has been unlawful discrimination, is insufficient without facts being found to support that conclusion."
[14]On the face of the decision it is clear to this Tribunal that the Learned Chairman set out in meticulous detail the primary facts in accordance with that requirement and indeed, the very arguments that Mr Grant has advanced to us have been based upon those very findings of primary facts. The approach to this sort of case was also considered in the decision by the House of Lords in Zafar –v- Glasgow City Council [1998] IRLR 36 . In the Judgment of Lord Browne-Wilkinson, he dealt with this aspect of the matter as follows:
"Claims brought under the Act of 1976 … presents special problems of proof for complainants since those who discriminate on the grounds of race or gender do not in general advertise their prejudices: indeed, they may not even be aware of them."
[15]He then quotes the Judgment of Lord Justice Neal in the case of King [1991] IRLR 513 , which has been quoted to us at some length. An important quotation from that case is as follows:
"Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not from racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances, the Tribunal will look to the employer for an explanation. If no explanation is then put forward, or if the Tribunal considers the explanation to be inadequate or unsatisfactory, it will be legitimate for the Tribunal to infer that the discrimination was on racial grounds. That is not a matter of law but, as May LJ put it Noone , "almost common-sense"
. It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. But at the conclusion of all the evidence, the Tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case."

Lord Browne-Wilkinson goes on:

"In my judgment that is the guidance which should in future be applied in these cases."
[17]From that, we approach the decision which was being drawn to our attention on the basis that it is permissive for an Employment Tribunal to draw inferences from primary facts of racial discrimination in the absence of a satisfactory explanation. We are alive to the proposition that were we to criticise any Industrial Tribunal for failing to ask themselves whether they had considered whether an explanation had been put forward and to fail to ask themselves whether or not an inference should be drawn, that we would then elevate to a matter of law what the House of Lords have clearly approved of as an issue of fact. We would be identifying as a matter of law an obligation upon a Tribunal to consider whether an explanation had been forthcoming and to consider whether or not an inference should be drawn. That, it seems to me, would be to go back to the authorities which the House of Lords in the case I have quoted specifically overrule.[18]We go back to the decision of the Employment Tribunal. Having set out the three questions that have to be asked it is not clear, on the face of the decision, that the Tribunal, in fact, answered those questions. There are two relevant questions. First of all, has the complainant been less favourably treated and was that less favourable treatment on racial grounds. There appears to be no issue but that. There was a difference of race between her and the others and it is quite clear to us, on the findings of the Employment Tribunal, that there were grounds upon which the Appellant was less favourably treated. Otherwise, there would have been no finding of constructive dismissal. The very use of the term "undermining" must connote a comparable position. But it is not clear to us, on a reading of the decision, which of those incidents, if any, gave rise to a judgment of less favourable treatment, and whether or not the Tribunal was directing its mind to the issue as to whether or not, if there were less favourable treatments in relation to a specific incident, it was on the ground of race or not. Accordingly, it seems to us, that on a very narrow ground the decision of this Tribunal falls to be criticised. Having set themselves three questions to be answered, the Tribunal did not, on the face of the decision, answer those questions, so that it is impossible for this Employment Appeal Tribunal to have a clear understanding on the face of the decision of the way in which the Tribunal reached that decision.[19]Accordingly, we are driven to find, as a matter of law, that the Tribunal failed to answer, on the face of the decision, those very questions, fundamental to its consideration, which it had asked itself. We are however, fully satisfied that there were all the findings of primary facts required for the reaching of answers to those questions. Furthermore, that the Tribunal correctly identified the law which they had to apply to those facts. But within the narrow ground to which I referred, we have come to the conclusion that this Appeal should be allowed.[20]As I have already indicated, we do not have sufficient material before us as to the information before the Tribunal for us to substitute our own answers to those questions and therefore, we have come to the conclusion that this case will have to be remitted for further hearing to an Employment Tribunal. It seems to us that, bearing in mind the nature of our decision, the best way to do that is as follows. This matter will be remitted to the same Tribunal, to deal with those questions which the Tribunal asked itself at the end of the penultimate paragraph and in order to do that, to hear such evidence in addition to that evidence which they have already heard from the Respondents which may be necessary to explore such explanation as the Respondents may have for the items of less favourable treatment which the Tribunal find. Such evidence from the Appellant as she may wish to put forward in answer to the question as to what is there within those incidents which gives rise to her feeling or believing or alleging that such conduct was on grounds of race may also be required. The parties were invited to make representations as to the way this matter should be remitted but did not wish to do so.