MR M CROWE v THE LONDON BOROUGH OF ENFIELD [2000] UKEAT 1254_99_2610

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 1254_99_2610Case No Appeal No. EAT/1254/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR M CROWEAPPELLANTTHE LONDON BOROUGH OF ENFIELDRESPONDENT
Before
His Honour Judge J R ReidDate 26 October 2000
[1]APPEARANCES For the Appellant MR A GUMBITI-ZIMUTO (of Counsel) Commission for Racial Equality Elliot House 10-12 Allington Street London SW1E 5EH For the Respondents MR D BASU (of Counsel) The London Borough of Enfield Legal Department PO Box 50 Civic Centre Silver Street Enfield EN1 3XA JUDGE REID QC : This is an appeal from a decision of an Employment Tribunal sitting at Stratford which was entered on the Register on 27th August 1999. By that unanimous decision the tribunal held that that the applicant, Mr Crowe, was not discriminated against on racial grounds. Mr Crowe had made his complaint by an Originating Application dated 16th March 1999 which was amended pursuant to the leave of the tribunal on 14th June 1999.[2]The terms of his complaint are set in paragraph 3 of the decision in these terms:
"I claim unlawful race discrimination as follows. The decision of the respondent (by Mr O'Connor and/or others) on or about 26 February 1999 to re-grade me to Scale B point 21 is unlawful direct race discrimination compared to the position of or treatment of Rachel Willett who was appointed (at the same time as me) in June 1996 at Scale B point 23 and who is or was therefore at point 25 or 26 by February 1999, bearing in mind that my relevant experience was and is at least as great or as valuable as hers. This is direct discrimination based on my race (mixed race) and/or the fact that some of my experience was gained in an ethnic minority workplace, which experience was undervalued by the respondent at all material times."
[3]The nub of the appeal is that the tribunal answered the questions posed on the wrong material and failed properly to apply the law as set out in the well-known case of King v Great Britain China Centre [1991] IRLR 513 CA , where Neill LJ at page 518, paragraph 38, set out five principles in what I might respectfully described as the locus classicus ; and also in the decision of the House of Lords in Glasgow City Council v Zafar [1998] ICR 120 , in which Lord Browne-Wilkinson, delivering the substantive speech with which all other of their Lordships agreed, not only commended the passage to which I have referred but also said this at page 123G: "Although, at the end of the day, section 1(1) of the Act of 1976 requires an answer to be given to a single question (viz. Has the complainant been treated less favourably than others on racial grounds?), in the present case it is convenient for the purposes of analysis to split that question into two parts –(a) less favourable treatment and(b) racial grounds – as did the Second Division." [ Our emphasis ][4]What is said is that the tribunal failed in their interpretation of the law because they allowed themselves to be sucked into considering on the first of those two sub-questions, unfavourable treatment, matters which should have been left only to the second of those sub-questions, namely the discrimination on racial grounds point.[5]The facts are set out in paragraphs 10 to 20 of the decision of the tribunal and I can take them from those paragraphs fairly briefly: Mr Crowe is of mixed race, having a black South African father and a white English mother. He is described in the decision in these terms:
"His colour is white, his features are Caucasian and, having been born and educated in the UK, English is his first language. … He takes pride in his heritage and, when asked, will openly acknowledge his mixed racial background."
It was necessary for the tribunal to give that description of Mr Crowe because one of the issues which was raised but on which the tribunal did not feel it necessary to reach a conclusion in the event, was that nobody at the respondent Council was aware of Mr Crowe's racial characteristics.[6]In early 1996, Mr Crowe applied for a vacancy with the respondent as a residential and community support worker at the Claire Project, which an organisation devoted to the care of adults with mental health problems. He and two other, one of whom was Ms Willett, were the successful candidates. Mr Crowe was thought to be the strongest candidate. After his appointment he was engaged on just the same duties as the other two appointed with him. But he was not paid the same and that difference in treatment is at the heart of the complaint.[7]The job that he was offered by a letter dated 7th May 1996 was referred to RASC Grade A and indicated a salary of £11,373 plus £1,176 London Weighting, a salary at SCP (spinal column point) 16.[8]In June 1998 he raised grading concerns with Ms Lyn Nash who had been head of the interview panel and was manager of the Claire Project until July 1998. He raised those matters with her about fortnight before she moved on.[9]The source of his concern was that Ms Willett in particular had started at a higher level, beginning at Grade B. But the reason that she had started at a higher level was that she had worked for another Local Authority in a similar capacity and in accordance with national agreements had transferred to the respondent at the same salary as previously enjoyed without being required to complete a fresh probationary period.[10]Mr Crowe's career should have been followed through with regular appraisals allowing him the opportunity to demonstrate his capability and with that the opportunity to progress to higher grades and salaries.[11]It has never been an issue that Mr Crowe has performed his duties to a high standard or that properly considered he would have achieved progress to Grade B and to a higher SCP, and that did not occur as it should have done.[12]Eventually, the errors were addressed at a formal grievance hearing in June 1999, after there had been a preliminary hearing before the Employment Tribunal, and that process led to the respondent recognising its errors and to regrading Mr Crowe with effect from December 1996.[13]The position before that had been that after Ms Nash moved on a Mr O'Connor was recruited from an agency to replace her as manager of the Claire Project and that there were concerns about the manner in which he discharged his duties.[14]When in mid-October 1998 it was realised that Mr Crowe's expressions of concern about his grading had not addressed, Mr O'Connor was required to look into the matter which he did, on what, it appeared to the tribunal, was an inadequate understanding of his role and what was required to correct the injustice done to Mr Crowe.[15]In February 1999 Mr O'Connor did reach a determination, and he took the view that Mr Crowe should be upgraded. His recommendation concluded that Mr Crowe "fulfils without doubt all the criteria as laid down for the higher grading. I would also recommend, most strongly, that this upgrading is, if possible, retrospective; at least from November 1st 1998." That date would appear to have been selected as being the beginning of the month next following the referral of the issue to Mr O'Connor. As the tribunal said:
"Whilst it may been rational it was wrong; Mr Crowe's case that he had earlier demonstrated his capability and merited an increase was unanswerable, a fact readily recognised at the grievance hearing."
[16]Unhappily Mr O'Connor's mistake as to the date from which the regrading should take effect was not noticed either when Ms Nash was asked to sign the appropriate document or by Ms Tona in Personnel who had to prepare the notification of change.[17]The result therefore clearly was that Mr O'Connor managed to treat the claimant unfavourably. But that is not the issue. The requirement of section 1(1) of the Race Relations Act 1976 is that for there to be discrimination a person should be treated less favourably than the discriminator treats or would treat other persons. For the purpose of the comparison, by section 3(4) the comparison must be with a person not of the complainant's racial group but must be one such that the relevant circumstances in the one case are the same or not materially different in the other.[18]The tribunal considered the position of Ms Willett and came to the conclusion which, in our judgment, they were beyond argument correct, that she was not in the same or similar position to Mr Crowe. She was treated on a different basis in the initial grading because she was in a different situation. Unlike Mr Crowe who had no previous Local Authority service to assist him and who therefore was appointed on RASC Grade A SCP 16, she had previous grading and as the tribunal found, was transferred at the same salary without the requirement for a fresh probationary period.[19]The tribunal was therefore, in our judgment, entirely correct in saying that Ms Willett was not an appropriate comparator and that the first sub-question was to be answered by considering whether or not a hypothetical comparator being re-graded at the same time (as Ms Willett was not) would have been treated less favourably. As the tribunal rightly found, there was no evidence to support that proposition. The beginning of paragraph 22 of their reasons is:
"The evidence does not permit the conclusion that Mr O'Connor, or any other of the respondent's officers, would have treated such a person [ i.e. the hypothetical comparator ] in any different way. Mr O'Connor's recommendation is couched in positive terms and it is difficult to see that he could have been more positive if addressing the same issue for the notional comparator."
[20]In our judgment, therefore, the tribunal came to the correct conclusion.[21]It has been suggested to us that they should not have come to that conclusion because they should not have addressed the question of Ms Willett's suitability as a comparator at the first stage in the enquiry when answering Lord Browne-Wilkinson's first question, but should have reserved that until the second point, when considering the racial element in the difference of treatment.[22]In our judgment that is incorrect. Two sub-questions have to be answered, and while it is usually convenient to look at them separately in determining the single overall question that has to be answered there is no rule of law to that effect.[23]The first sub-question was: was there less favourable treatment than of a comparator. It is not enough for the appellant to select someone as a comparator and say "I am treated less favourably than X, therefore you go automatically on to the question of racial grounds". It is essential that the tribunal look at and determine whether the person nominated as a comparator by the claimant is in truth a comparator. That involves not only looking at the job that is being done (in this case both were doing the same job) but at the other factors which led to the appointment on different terms. In this case, there were, as the tribunal found, good reasons why Ms Willett entered the employment of the respondents at a different point on the SCP, namely her previous experience and employment with another Local Authority. It followed from that that the tribunal correctly held that she was not an appropriate comparator and correctly went on to look for a hypothetical comparator.[24]In our judgment it cannot be said that the tribunal erred in law where it did not accept the appellant's proposition that Ms Willett was an appropriate comparator and then did not go on to look at all differences when looking at the second sub-question, namely racial grounds. It may be that the same piece evidence will bear on each of the two sub-questions and it may be that had the tribunal held that Ms Willett was an appropriate comparator they would then have had to look again at the same matters relating to her position and treatment when dealing with the racial grounds sub-question.[25]It cannot be said either that because evidence is material to one of the sub-questions it must necessarily be excluded in relation to the other of the sub-questions, or that the only material consideration in determining whether or not someone is less favourably treated than a proposed comparator when looking at the first part of Lord Browne-Wilkinson's question is:
"were they doing the same job but getting paid more?"
One has to look at a far fuller picture than that. This, the tribunal, in an admirable decision, did. It determined that Mr Crowe was not treated less favourably than a notional comparator would have been. It followed that the second sub-question did not arise.[26].. Notwithstanding the thorough and elegantly presented argument on behalf of the appellant by his Counsel, to which we are very grateful, we take the view that the tribunal was entirely correct in its appreciation of the law and in the way in which it dealt with the matter. The appeal is therefore dismissed.