(1) ABBEY NATIONAL PLC (2) MS J ROLLINSON v MS T A ACKROYD [1999] UKEAT 987_98_2907

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 987_98_2907Case No Appeal No. EAT/987/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
(1) ABBEY NATIONAL PLC (2) MS J ROLLINSONAPPELLANTSMS T A ACKROYDRESPONDENT
Before
His Honour Judge Peter Clark Miss C Holroyd Mr D A C LambertDate 29 July 1999
[1]APPEARANCES For the Appellants MR J SWIFT (of Counsel) Instructed by: Mr A Squires Principal Lawyer Corporate and Contract Law Unit Abbey National PLC Genesis House 301-349 Midsummer Boulevard Milton Keynes MK9 2JE For the Respondent MR E GRANT (Representative) Northern Complainant Aid Fund Check Point 45 Westgate Bradford BD1 2TH JUDGE PETER CLARK : Abbey National decided to open a Tele-service call centre in Bradford. They aimed to recruit some 280 new staff. For this purpose they employed the services of Reed Staffing Services Ltd ["Reed"] in conducting the recruitment exercise.[2]The applicant, Ms Ackroyd who is black and of Afro-Caribbean racial origin, applied for a position as a Tele-service customer adviser with Abby National. She was interviewed by Miss Paula Widdop of Reed on 1st October 1997. That process consisted of two tests; spelling and computer literacy tests and a series of structured question and answer sessions which were marked by Miss Widdop. The applicant scored below par on the spelling and computer tests but scored exceedingly well on other aspects of the process. Miss Widdop accepted the applicant, describing her as a strong candidate.[3]There was some debate before the Employment Tribunal sitting at Leeds which heard the applicant's subsequent complaint of racial discrimination, brought against Abbey National and its employee, Mrs Jacqueline Rollinson, as to whether the applicant was told by Miss Widdop that she had got the job with Abbey National. The tribunal found that Miss Widdop told the applicant that her formal offer of employment was subject to approval by Reed.[4]The next stage was an open day to be held by Abbey National on 7th October. The applicant attended on that day together with other potential staff recruits. Mrs Rollinson, a team manager, was in charge of that event. The purpose of the open day was to give prospective employees a tour of the operation and an opportunity to sit with a teleservice adviser to see what the job entailed. They were called "Buddies".[5]The tribunal found that the applicant was keen to create a good impression. She arrived on time and assembled in a group with other potential employees. Whilst the group were waiting for Mrs Rollinson to take them to the first meeting the applicant went outside to deal with a disability parking ticket on her car. The tribunal found that, for reasons which were not clear, the Abbey National staff wrongly assumed that she had gone out for a smoke. That, the tribunal thought, may have affected Mrs Rollinson's attitude to the applicant during the course of the day.[6]The applicant was to be placed with a Buddy called Mark Hayes. Before joining him she asked if she could take a drink from a coffee machine. She did so and, as the tribunal put it in their extended reasons dated 16th June 1998, the machine supplied an incorrect drink. Pausing there, it appears from the evidence of Mrs Rollinson, contained in her witness statement, that the applicant complained about the fact that her coffee did not have sugar as she had required. Mrs Rollinson thought her tone quite aggressive when she complained about the lack of sugar. The tribunal were unable to see why Mrs Rollinson thought that the matter was important.[7]Whilst the applicant was sitting with Mr Hayes he formed the view that she had a negative attitude on the grounds that she was looking around the room, asked him whether taking calls was "all he did all day" and because she asked him whether he ever became bored. The tribunal thought that this was a perfectly normal attitude for an enthusiastic and competent candidate to display. When she was placed with a second buddy she indicated that the calls were interesting and that she had not believed the system was so organised.[8]At the end of the open day the applicant felt that she was snubbed by Mrs Rollinson, who did not shake her hand. That inference was rejected by the tribunal, who found that Mrs Rollinson was engaged with another candidate when the applicant left. There was no deliberate refusal on the part of Mrs Rollinson to shake the applicant's hand.[9]Thereafter the applicant was informed by Miss Widdop that the job offer had been withdrawn, as she had been told by Mrs Rollinson. As a result, the applicant brought a claim of racial discrimination and breach of contract before the tribunal. The latter claim was dismissed, the tribunal finding that there was no concluded contract of employment made between Abbey National and the applicant. Racial discrimination[10]It was the respondent's case that a decision was made by Mrs Rollinson not to proceed with the employment of the applicant on the basis of two pieces of observation:(1) the coffee incident; and(2) the applicant's negative attitude displayed to Mark Hayes in the ways described above.[11]The tribunal rejected that explanation and concluded that the respondents had treated the applicant less favourably than they treated or would treat other persons on racial grounds by not employing her. The relevant findings are set out at paragraph 26-7 of their reasons as follows:
"26. As we have indicated, there was nothing in the Applicant's behaviour, demeanour or conduct, before she took a drink from the machine, which could possibly form the basis for any decision that the Applicant was not a suitable person to be employed. When Ms Rollinson saw the Applicant's reaction to the supply of the drink, she grossly over-reacted. She must have seen that the Applicant was black. She must have associated the fact that the Applicant was black with the fact that the Applicant made it apparent that she was unhappy with the product supplied to her. We have no doubt whatsoever that Ms Rollinson's over-reaction was the direct result of her noting that the Applicant was a person of Afro-Caribbean origin. We have no doubt whatsoever that Ms Rollinson would not have reacted in that way if the Applicant had been white. Perfectly innocent conduct which, in the case of a white person, would have been forgotten within seconds, was blown up by Ms Rollinson out of all proportion to its real importance only because the Applicant was of Afro-Caribbean origin. It seems to us that there was here an element of stereotyping, in that a black person, in the position of this Applicant, was being subjected to far higher standards than Ms Rollinson did or would have applied to a white candidate for employment. 27. Having reached those views, Ms Rollinson then went in search of Mr Hayes. It is inconceivable that Ms Rollinson's views were not made clear to Mr Hayes. Given the respective positions of those parties, in that there are some two or three lines of management between Mr Hayes and Ms Rollinson, it is hardly surprising that Mr Hayes went along with Ms Rollinson's approach. It would be an extremely brave junior employee, in the position of Mr Hayes, who would seek to case doubt upon the views already formed by a senior manager such as Ms Rollinson."
[12]In considering whether the applicant had made out her case under ss. 1(1)(a) and 4(1)(c) of the Race Relations Act 1976 the tribunal considered the guidance provided by Neill LJ in King v Great Britain China Centre [1991] IRLR 513 , as approved by the House of Lords in Zafar v Glasgow City Council [1998] ICR 120 . They were further reminded of the need to make findings of primary fact from which they could legitimately draw an inference of unlawful discrimination. Chapman v Simon [1994] IRLR 124 .[13]With those principles in mind, and based on their findings of fact, which involved rejecting the respondent's witnesses' evidence as to what actually occurred on the open day and as to the "aggressive attitude" of the applicant on that day, the tribunal concluded:(1) That the applicant was less favourably treated than other actual successful candidates following the open day, and that there was a difference of race. Had it been necessary they would have similarly so found comparing the applicant's treatment with that of an hypothetical comparator.(2) That the respondent's explanation for the less favourable treatment was unsatisfactory. It was rejected.(3) That this was not merely a case of unreasonable and inefficient management (cf. Zafar ). In any event, that was not the issue before the tribunal.(4) Having rejected the respondent's explanation the tribunal, properly directing themselves, accepted that they were not bound to draw an inference of discrimination on racial grounds but having considered all the circumstances of the case, in the exercise of their judgment, did so. The complaint was made out. The Appeal[14]Mr Swift, who appeared below and can be taken to have argued the case with his usual skill and tenacity before the Employment Tribunal, has reminded us that it is not enough for tribunals to draw an inference adverse to the respondent based on an "intuitive hunch" ( Chapman paragraph 43); there must be clearly articulated and permissible findings of primary fact on which it is proper to draw the inference. He further relies upon the Court of Appeal judgments in Martins v Marks & Spencer Plc [1998] ICR 1005 and Nagarajan v LRT [1998] IRLR 73 .[15]Against that background he makes the following submissions:(1) The tribunal failed to make any findings of fact to support any inference that the applicant had been less favourably treated than a notional comparator would have been treated. It seems to us that this finding by the tribunal was not necessary to their conclusion. Mr Grant points out that he based the applicant's case on the events of the open day. White candidates were accepted; the applicant was rejected. That is a comparison with actual comparators which the tribunal upheld. The tribunal's finding as to hypothetical comparators is thus immaterial.(2) The tribunal was wrong to find (paragraph 29) that there was no evidence that any such unreasonable and inefficient management applied to other candidates. Mr Swift points out that in evidence Mrs Rollinson referred to other candidates rejected at open days held on 4th September and 11th November 1997, one for being 'scruffy' and another for 'attitude'. We assume that those candidates were white. That evidence was unchallenged. In our view, this submission is an example of "fine toothcombing" an Employment Tribunal's reasons for a point of law (cf. Retarded Children's Aid v Day [1978] ICR 437 , 444D-E, per Lord Russell of Killowen). It is not necessary for the tribunal to mention expressly every piece of evidence which it heard in their reasons; failure to mention a part of the evidence does not mean that the tribunal has overlooked it. There are further difficulties with this submission. First, the tribunal clearly directed themselves that this was not a case of mere unreasonable and inefficient management and that in any event that was not the issue. Secondly, we find nothing inconsistent in the tribunal implicitly accepting that other candidates, on different occasions, were legitimately rejected for the reasons advanced by Mrs Rollinson and their finding that the reasons given by her for rejecting this applicant were not accepted. The tribunal did not accept, on the evidence, that the applicant behaved in the way described by Mrs Rollinson. That is a question of fact for the Employment Tribunal not for us.(3) The tribunal failed to set out the facts as found in relation to the coffee incident and what the applicant said to Mrs Rollinson on that occasion. Their conclusion (paragraph 26) that Mrs Rollinson grossly over-reacted because the applicant was black was based on an "intuitive hunch" and not on any factual basis. We disagree. It was for the tribunal to decide whether the applicant behaved aggressively on that occasion, as Mrs Rollinson suggested. They accepted the applicant's evidence that she did not. Again, the tribunal's omission from their reasons as to what was said by the applicant (that she had to leave her coffee because it did not have sugar in it and she wanted sugar) does not undermine the tribunal's critical finding that Mrs Rollinson over-reacted and their conclusion that she did so because the applicant was black.(4) The tribunal's conclusion (paragraph 27) that it was inconceivable that Mrs Rollinson's views were not made clear to Mr Hayes and that he went along with her approach is unsupportable on two grounds: (a) the point was not put to either witness in evidence, and (b) it is not based on direct evidence but on flawed logic. It is correct to say that in the Chairman's Notes of Evidence he records Mr Hayes stating that Mrs Rollinson proffered no opinion about the applicant before he was asked what he thought of her. That evidence was not accepted by the tribunal. They found it incredible that Mrs Rollinson would not have offered her opinion first, given their relative seniority. It seems to us that a distinction must be drawn between a tribunal deciding a matter of significance without giving the parties an opportunity to deal with it at all (cf. Lawrie v Holloway [1994] ICR 32 ) and its rejecting evidence which it has heard. There was no breach of natural justice in this respect. Further, the tribunal took a view of the credibility of that piece of evidence which was, in our judgment, open to it. We therefore reject this submission.[16]Looking at the tribunal's reasons as a whole we have reached the conclusion that its findings, albeit robust, were permissible; they found a legitimate factual basis for drawing the inference of unlawful discrimination. There was no patent misdirection in law.[17]This appeal is dismissed.