MR M CROWE v LONDON BOROUGH OF ENFIELD [2000] UKEAT 1254_99_0203

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 1254_99_0203Case No Appeal No. EAT/1254/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR M CROWEAPPELLANTLONDON BOROUGH OF ENFIELDRESPONDENT
Before
HIS HONOURABLE JUDGE COLLINS CBEMR I EZEKIELMR D A C LAMBERTDate 2 March 2000
[1]APPEARANCES For the Appellant Mr A Zimuto For the Respondent Mr D Basu JUDGE COLLINS CBE This is a hearing of an appeal against the decision of an Employment Tribunal at Stratford whose reserved extended reasons were promulgated on the 27 th 1999. By its decision the Tribunal held that they had been no racial discrimination against the Appellant. By his notice of appeal dated the 8 th October 1999, the Appellant alleges that the Tribunal misdirected itself in its application of the decision of the House of Lords in Zafar v Glasgow City Council [1998] IRLR 36 and in particular was wrong in deciding that one Miss Wilted was not an appropriate comparator for the purpose of deciding whether or not the Appellant had been subjected to less favourable treatment.[2]The essential question is with in connection with a re-grading exercise, which took place in February of 1999. Mr Crowe contends that there had been racial discrimination in relation to his original grading when he commenced work for the Respondents in July 1996 as a Residential and Community Support Worker. And the pressure to regrade him appropriately came to a head in February of 1999, when the appropriate officer, Mr O' Connor advised in strong terms that he should indeed be regraded and the terms are set out in paragraph 19 of the Tribunal's reasons but for reasons which are at the heart of the case the re-grading was no made retrospective until 1 st November 1998, which left the Appellant at a considerable advantage compared with the position he'd been in if he'd been on the, what he claims to have to been, the correct status on the pay spine right from the beginning.[3]The case proceeded before the Tribunal on the basis that a Miss Willett's who had been employed at the same time as the Appellant was an appropriate comapartor and it was said that the result of the regrading exercise should have been to have put the Appellant on the same position of the pay scale as Miss Willits. The Tribunal disagreed they held that Miss Willett's was not the subject of the regrading exercise in February 1999 and the only proper comparator would be a notional comparator who would be subject to that regrading exercise and they held that in all the circumstances of the case there was no evidence that such a notional comparator would have been treated any differently by Mr O'Connor, than the Appellant was, and therefore the compliant of racial discrimination fell at the first hurdle of being able to show that Mr Crowe was treated less favourable than some other employee.[4]The submissions, which Mr Zimuto has made to us, is to the effect that it is reasonable arguable that that was an erroneous conclusion and that the Tribunal should have held that Miss Willet's was a proper comparator. He proceeds to the next stage of his argument by reference to paragraph 22 of the Tribunals reasons. In the last sentence of that paragraph they said this and I quote:
"Because of our conclusion that Mr O' Connor and the others involved in the process would have not treated the notional comparator any differently, it is unnecessary to conclude whether or not Mr O' Connor, or those others, was [sic] aware that Mr Crowe is of mixed race."
The relevance of that the Tribunal had pointed out whether appropriately or not I need not consider for the purposes of this judgment that to use their words, "the casual observer would consider that he is white UK". Accordingly, Mr Gumbitzis Zimuto submits that the Tribunal never consider whether or not there was in fact any racial motive for any of the actions of Mr O' Connor and while he accepts that the Tribunal said in paragraph 22 that there was no satisfactory basis on which they conclude that Mr Crowe's racial background played any part of the process, Mr Zimuto submits that since they never considered whether Mr O' Connor was aware of Mr Crowe's race that is a flawed conclusion.[5]We think that these arguments are reasonably arguable. We think that it ought to be possible for Mr Crowe to argue at a full hearing firstly that Miss Willet's should have been selected as the appropriate comparator, secondly that by comparison with her, Mr Crowe received less favourable treatment and that in those circumstances, the Tribunal by the course which it adopted in relation to the evidence had disabled itself from decided whether or not that less favourable treatment was on racial grounds and for those reasons we shall order that this proceeds to a full hearing. We shall give the case a time estimate of half a day listing categories C and direct that those skeleton arguments be submitted 14 days before the date of the hearing.