MR A R LINDSAY v ALLIANCE & LEICESTER PLC [2000] UKEAT 1317_98_0303

"6. The grounds upon which this appeal is brought are: (i) that the Employment Tribunal erred in law in considering the Appellant's complaint of unlawful race discrimination by way of victimisation and in the use of file notes and monitoring the attendance. (ii) The decision in respect of this part of the claim was perverse."

"2. The issues By Application dated 13 February 1997 Adrian Richard Lindsay alleges racial discrimination/victimisation against the Respondent, Alliance & Leicester Plc, by which company he was employed on 13 June 1994 as a customer advisor at its branch at 85 Gracechurch Street in London. At the time of that Application he was still so employed by the Respondent and his complaint was succinctly put by his indication at Box 11 of that Application, namely that it '… is in relation to the victimisation that I have received as a result of raising a grievance in relation to the racial discrimination and harassment I was experiencing'. He said that his grievance related to his complaint of lack of opportunity for promotion, lack of access to training and development and being the target and witness to racial abuse and racial insensibility by senior members of staff. He said he had be (sic) constantly turned down for jobs which he had applied for within the Respondent group. He explained that the victimisation became first formally evident 'by way of file note dated 15 November 1996 which was highly critical of my performance, attitude and ability'. He directly associated his complaint of victimisation with other file notes of which he became aware subsequently."

"7. It also came to be agreed between the parties' representatives that it 'will not be necessary for the Tribunal to enquire into the question whether or not the initial grievance was justified. Without accepting that the grievance was justified, the Respondents do accept that it was bona fide'. The evidence in this case, therefore, was concerned with the Respondent's handling of the grievance and the Applicant's complaints that he was victimised as a result. Mr Lindsay confirms that it is his case that, to a greater or lesser extent, all those individuals identified were consciously motivated by racial considerations and he suggests that the factual basis of that assertion is 'sufficiently set out in the particulars already provided'."

"11. This has been an unusual case if only that there have been very few differences of fact between the parties. We have little doubt all the witnesses have given their evidence to the best of their recollection and with commendable frankness. Mr Lindsay has presented as a witness with a very real sense of grievance. We do not believe he has attempted to mislead us in any way. Happily we make the same observation of each of the Respondent's witnesses. Almost all the material facts have been easy to find because of the coincidence of views. The real issues between the parties are straightforward to contemplate. Mr Lindsay says that the Respondent's dealing with his grievance and the events thereafter was remiss and the only explanation we should find is that he has been treated differently and victimised by the Respondent because of a difference in treatment on account of race. The Respondent's case is that it stands by its conduct in every way, that its reaction to the Applicant's complaint was an investigation conducted thoroughly and exhaustively, that it could reasonably have done no more, that it denies any difference in treatment but if it did exist, such difference of treatment was because of the facts of this case and in no way related to a difference in race. We comment that this analysis does not set out the statutory question posed by s. 2 of the Race Relations Act 1976 either as a composite question, or as a question divided into its constituent parts. We shall return to the statutory question. However at this stage we point out that the statutory question does not raise the question whether "an employer victimised an employee", or whether "a difference in treatment was on account of race or related to a difference in race"

"13 The law Section 1 of the Race Relations Act 1976 provides as follows: (i) A person discriminates against another in any circumstances relevant for the purpose of any provision of this Act if: (a) on racial grounds he treats that other less favourably than he treats or would treat other persons; (b) not applicable to the issues before us. Section 2 of the 1976 Act provides: (i) A person ('the discriminator') discriminates against another person ('the person victimised') in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has: (a) brought proceedings against the discriminator or any other person under this act; or (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act; or (c) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person; or (d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them."

'In order for there to be unlawful victimisation a protected act must constitute the reason for the less favourable treatment. That requires conscious motivation. It is not sufficient if the influence is subconscious. Nor is it sufficient that the discriminator was consciously aware of the protected acts done by the victimised person and was influenced by those acts in treating him less favourably. The mere fact that a person has knowledge of the protected acts cannot in itself justify an inference at he was thereby consciously motivated to treat the complaint less favourably.'

"3(3) In this Act - (a) references to discrimination refer to any discrimination falling within section 1 or 2; and (b) references to racial discrimination refer to any discrimination falling within section 1, and related expressions shall be construed accordingly. (4) A comparison of the case of a person of a particular racial group with that of a person not of that group under section 1(1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."

"19 Our findings of fact We are conscious that any short finding of fact may never reflect clearly the depth of the detailed evidence we have had placed before us so fully and skilfully by both Mr Kibling and Mr Nicholls. In making our findings of fact we have given very great attention and taken very great care to consider all the evidence before us and the documentary evidence as well. 20 The material facts we found were as follows (c) When Mr Lindsay started his work Roger Gaywood was the branch manager. Very shortly thereafter in September 1994 Wendy Blanks began working for the Respondent as senior customer advisor. (e) During 1994 and 1995 certain racist remarks had been made which offended Mr Lindsay, although not put directly to him. These had been made by Roger Gaywood and Valerie Steer but the Applicant did not complain of them at the time and subsequently the Respondent came to recognise what had been said and cautioned staff accordingly. We are not required to make findings prior to the presentation of the Applicant's grievance on 5 September 1996. Nevertheless, we record that we accept the Respondent's explanation that disciplinary action concerning the earlier remarks had been thought inappropriate because of the time which had passed before those remarks came to be complained of by Mr Lindsay. Also we note that after his employment began Mr Lindsay made unsuccessful promotion applications in December 1994, August 1995, November 1995, January 1996 and July 1996 at which time he applied for promotion to branch manager of the Harrow branch. There was a further application made during 1995 but which did not result in the Applicant achieving an interview because, said the Respondent, he had badly failed in one particular aptitude test as part of that selection process. (f) On 5 September 1996 Mr Lindsay filed a formal grievance. He complained of a 'very uncomfortable environment to work in', that he believed the Respondent was not complying with its own Equal Opportunities Policy Statement and that his career was suffering. In his evidence he came to tell us of his deep frustration at the lack of promotion. He felt he ought to have progressed more rapidly because of his background and achievement at Barclays Bank. (g) On 11 September 1996 Mr Lindsay met with Vicky Wilkinson and Les Nicholson. He explained his grievance and that he felt there were 'racist issues'. He challenged some of his performance appraisals and referred to the earlier racist comments. Mr Nicholson agreed to conduct a further investigation. Vicky Wilkinson agreed to reply formally to his grievance letter and to prepare a career development plan. Mr Lindsay was encouraged to pursue an appeal against his performance rating but he did not come to do so. (h) On 16 September Vicky Wilkinson wrote a confirmatory letter to the Applicant. She informally interviewed the Gracechurch branch staff and warned them that racist comments would not be tolerated. (i) Between 19 September 1996 and 8 October Mr Nicholson conducted certain investigations with branch staff, all of whom denied racist comments had been made, save Reba Ward who confirmed that certain racist comments had been made but with no intention to insult or offend Mr Lindsay. (k) On 15 November 1996 Sonya Clegg wrote a file note concerning the Applicant referring to his removal of the safe keys and their retention when he was sick the next day, certain comments concerning headaches which she recorded the Applicant said derived from stress he was feeling as a result of his race discrimination claim, and his absences at the branch for medical appointments made during the 'lunchtime' period. Whereas that notice to some extent is ambiguous, we accept her evidence that it was not intended to refer to absence for two complete days, intending to refer to the lunch period only. Mr Lindsay noticed that file note on 16 November on Sonya Clegg's desk. She had taken over as acting branch manager from Vicky Wilkinson during Mrs Wilkinson's sick absence. We prefer the evidence of Sonya Clegg that she left the note concealed and it was not placed in an obvious position in the centre of her desk as Mr Lindsay asserted. He was very upset by the content of the note which he said had never been checked with him and was inaccurate in any event. (l) On 22 November 1996 Stephen Phillips and Les Nicholson heard the Applicant's second stage grievance at the Hove branch of the Respondent. Mr Phillips agreed to investigate the file note and at a meeting held at Gracechurch Street on 28 November an amended or corrected minute was prepared concerning it and with which the Applicant was satisfied. Between 8 October and 19 November four separate file notes had been prepared concerning the Applicant containing a total of eight separate entries. Five were made by Wendy Blanks, the notes not having been brought to the Applicant's attention. The 15 November note had alerted the Applicant to what he believed was a campaign of victimisation against him because of his grievance. (m) By an undated note but written after 28 November, Mr Lindsay commented upon the 15 November file note indicating that he thought it was 'by misinterpretation, bad presumption, incorrect evidence or a lack of communication' which had caused its inaccuracy. (o) By letter dated 12 December Mr Lindsay confirmed he would like to invoke the third stage grievance procedure and he said that he was exercising his rights in seeking advice from other advisory bodies. (p) On 2 January 1997 Wendy Blanks wrote a further file note critical of Mr Lindsay both as to his time of arrival and his performance. That note related to 23 and 24 December 1996. Wendy Blanks was not then in the office and the note did not convey who had passed the information to her and which lead her to write it. Certain entries were made by Wendy Blanks on the attendance record sheet for 1996 indicating the times of the Applicant's alleged late arrival over an extended period but particularly during October that year. The Applicant denied those entries were correct. (r) On 16 January Mr Lindsay became sick and never returned to his work with the Respondent."

"21 Our conclusions By his very full submissions Mr Kibling reminds us of the Respondent's witnesses lack of awareness of the Company Equal Opportunity Policy and that this offends the code of practice prepared by the Commission for Racial Equality. He reminds us of the lack of knowledge exhibited in that regard by each of the Respondent's witnesses and of the apparent absence of any procedure for monitoring the promotion and/or recruitment from ethnic minority groups. We agree with him. We consider that at the material times the Respondent (both individually and collectively) fell far below the standard expected of it. Nevertheless, we must also recognise that those deficiencies have to a large degree been accepted and recognised by the Respondent's senior witnesses and Mr Nicholson and Mr Dearsley in particular. Perhaps that is a criticism (we are told matters have now been put right) of the Respondent's failure to provide proper training and procedures for its staff rather than a contempt of the need for Equal Opportunity awareness. It is of course entirely proper for Mr Kibling, as he does, to ask us to take these matters into consideration when we examine the race discrimination allegations brought by Mr Lindsay. Nevertheless, we must be very careful not to fall into the trap of assumption that because at the time of Mr Lindsay's complaints the Respondent's procedures may be remiss, it does not follow there was any individual or collective atmosphere of disregard for racial or Equal Opportunity awareness. We do not find there was, either on a collective or an individual basis. 22 The Applicant says that the Respondent's failure to deal with his grievance as he felt proper and the series of file notes in particular, some unfavourable, should lead us to only one view, namely that the Respondent was guilty of his victimisation. He says that we cannot properly conclude otherwise in the face of his repeated failure to gain promotion. He says there is no other likely explanation. 23 We have carefully considered the evidence of the Respondent's witnesses. In each case we are entirely satisfied that the Applicant's grievance was taken seriously and responsibly at every stage. That is not to say the Respondent is beyond criticism or that with hindsight it might have acted differently. Nevertheless, save one single exception, we find no difficulty in accepting the Respondent's explanation at every stage of the grievance investigation and that from the outset there was a genuine attempt to correct any wrong which had been done, investigate fully, discipline staff if felt appropriate and rehabilitate Mr Lindsay within the organisation. We recognise the Applicant's apprehension at the file notes which came to his attention. Yet we accept the evidence of the Respondent's witnesses, namely that file notes always ought to be made to record significant events and it seems to us to be only common sense for the Applicant's senior staff to be particularly vigilant in regard thereto in the knowledge that a formal complaint had already been made by Mr Lindsay. We see nothing within those file notes to lead us to a conclusion of victimisation in the absence of any other explanation. 24 It seems to us the nub of the Applicant's complaint turns on his failure to achieve promotion. We took trouble to question each of the Respondent's senior witnesses as to their own career progress. Without exception, each of those senior employees themselves took considerably longer than the career progression anticipated by Mr Lindsay. Sadly it seems to us that Mr Lindsay may have harboured an over-inflated view of his own ability and the significance of his work as a cashier at Barclays Bank. That is not to say we see any evidence he may not have achieved the promotion he desired in due time but it seems to this Tribunal to be entirely unrealistic for Mr Lindsay to have expected to achieve the level of branch manager within the short duration of his work with the Respondent. Each of the Respondent's witnesses has confirmed likewise. 25 We are disappointed not to have had the benefit of any other staff files for comparison for we are told, by a number of the Respondent's witnesses, that the maintenance of file notes concerning staff was an important part of the Respondent's manager's task and particularly so whenever the sickness absence procedure came to be implemented. We have accepted the Respondent's evidence that the sickness procedure became appropriate in the case of Mr Lindsay. As we have said we have examined the various file notes upon which Mr Lindsay relies in support of his victimisation claim but we are not persuaded, on the balance of probabilities, there is evidence which must only lead us to the view those file notes record a campaign of victimisation against the Applicant. The single exception to which we refer relates to the time keeping entries inserted, apparently with great precision and care, by Wendy Blanks upon Mr Lindsay's record and in particular during October 1996, shortly after the grievance was received. We were told, although we saw no evidence, that other staff had their lateness similarly recorded. We appreciate that Sonya Clegg was unable to speak with any real authority in the absence of Wendy Blanks but we do not regard her explanation as plausible, namely that the absence of entries on other staff records was because none of the other staff were late. Whilst it is not for us to offer our own explanation, we are not persuaded [following Zafar ] that only because there is no obvious explanation before us, there must follow a finding of discriminatory conduct. There may be other obvious explanations. It is not for us to conjecture. 26 We have carefully examined all the evidence before us, applying such common sense as we are able, but all of which leads us to the view that notwithstanding certain deficiencies, the Respondent did its very best at all levels and at all times to deal properly with the Applicant's grievance. In particular, we consider that, although perhaps his style appeared to Mr Lindsay as somewhat abrupt, Mr Dearsley did his very best to rehabilitate Mr Lindsay within his organisation during the stage three grievance hearing. We have been wholly unable to find any evidence which could properly lead us to the view that the Respondent consciously victimised Mr Lindsay because of his implementation of a grievance or indeed otherwise. As we are constantly reminded by the Employment Appeal Tribunal and otherwise, it is important that we should undertake our task in a common sense way, taking all the evidence before us in the round. The lay members of this Tribunal have asked that it be recorded in particular that in their industrial experience they perceive little within the Respondent's investigation of the Applicant's grievance or indeed the implementation of that grievance procedure itself which is capable of real criticism. We reject completely the submission made by Mr Kibling on behalf of the Applicant that 'the attitude of those hearing the grievance was that there was no substance to the allegation'."

"There is only one other matter to which I would refer. In these cases Parliament has expressly left the determination of all questions of fact to the industrial tribunals themselves. An appeal to the appeal tribunal lies only on a point of law: and from that tribunal to this court only on a point of law. It is not right that points of fact should be dressed up as points of law so as to encourage appeals. It is not right to go through the reasoning of these tribunals with a toothcomb to see if some error can be found here or there – to see if one can find some little cryptic sentence. I would only repeat what Lord Russell of Killowen said in Re t arded Children's Aid Society Ltd v Day [1978] ICR 437, 444: 'I think care must be taken to avoid concluding that an experienced industrial tribunal by not expressly mentioning some point or breach has overlooked it, and care must also be taken to avoid, in a case where the Employment Appeal Tribunal members would on the basis of the merits and the oral evidence have taken a different view from that of the industrial tribunal, searching around with a fine toothcomb for some point of law.' It does seem to me that in this particular case, if one does not use a toothcomb, if one looks at the findings of this tribunal broadly in accordance with what they have said, it is found that there was a substantial reason for this dismissal. Not only was there a substantial reason, but in the circumstances of the case the employers acted reasonably in treating it as a substantial reason having regard to equity and the substantial merits of the case. Therefore the dismissal was fair. I would reverse the appeal tribunal and restore the decision of the industrial tribunal."

"The guiding principle, when it comes to construing the reasons of an industrial tribunal at an appellate level, must be that, if the tribunal has directed itself correctly in law and reached a conclusion which is open to it on the evidence, the use in other passages of its reasons of language inappropriate to the direction it has properly given itself should not be allowed to vitiate the conclusion unless the relevant words admit of no explanation save error of law."

"In the present case the industrial tribunal had correctly directed itself in law by citing the limitations of issue estoppel. It had demonstrated an awareness of the issues raised in the pension dispute on the one hand and the unfair dismissal claim on the other, and had noted the differences between them. It had reached a conclusion expressed to be a finding of its own, and had done so after independent consideration of the relevant correspondence between the parties and after hearing the oral evidence of the applicant and argument on both sides. Is there any explanation, save error of law, for its emphasis upon, and subservient references to, the findings of the county court? In my view there is. It lies in the fact that the industrial tribunal was dealing, unusually in its jurisdiction, with a submission of no case to answer. The general guidance in the authorities cautions, as the tribunal itself observed, against adopting such a procedure in the tribunals. It would be natural therefore for the industrial tribunal, before deciding whether in its discretion to entertain a submission of no case, to see if there were any exceptional circumstances justifying a departure from the normally accepted practice. The fact that another court, in another jurisdiction, and for analogous but different purposes, had reviewed the same evidence and reached a conclusion which coincided with its own independent impression could properly be regarded as providing such circumstances. When the decision is read as a whole with that consideration in mind, the misuse of language involved in applying the term 'binding' to the antecedent findings of the county court can reasonably be explained, in my judgment, as an attempt on the tribunal's part to indicate that it was looking to those findings, not for guidance as to what its own decision should be, but rather as providing justification for acting summarily on its own independently formed conclusion through acceptance of a submission of no case to answer. It is preferable, in my view, and more in tune with the traditional approach to the construction of a tribunal's decision, that its reasoning should be construed benevolently in that way. The alternative interpretation would involve imputing to the industrial tribunal what would amount, given the correct direction it had stated for itself in law, to a major error, namely, a misplaced application of the principle of res judicata. This is, in short, a case of sound reasoning poorly expressed. The decision of the industrial tribunal should on that basis be upheld. I would accordingly allow the appeal and restore the order of the industrial tribunal."

"Finally it was submitted that the Industrial Tribunal was under a duty to state the law, its primary findings of fact, its secondary findings of fact and its conclusions. This is wholly misconceived. The duty of an Industrial Tribunal is to give reasons for its decision. This involves making findings of fact and answering a question or questions of law. So far as the findings of fact are concerned, it is helpful to the parties to give some explanation for them, but is not obligatory. So far as the questions of law are concerned, the reasons should show expressly or by implication what were the questions to which the Tribunal addressed its mind and why it reached the conclusions which it did, but the way in which it does so is entirely a matter for the Tribunal."

"When considering whether the imposition of a condition was ';justifiable' within the meaning of section 1(1)(b)(ii) of the Race Relations Act 1976 industrial tribunals, applying an objective test, had to balance the discriminatory effect of the condition against the reasonable needs of the person who applied the condition; that only if the discriminatory effect could be objectively justified by those needs would the condition be 'justifiable'; that in reaching their decision on that issue, the tribunal had to give full reasons sufficient to explain to the parties why they had either lost or won; that as the tribunal had failed to identify the standards by which they are testing the Secretary of State's justification of the condition or to make any findings comparing the applicant's courses with the domestic one, their reasons were deficient; and that, accordingly, their decision on the conditions applied by the Secretary of State could not be upheld." and to the judgment of Balcombe LJ at pages 192 G to 193 D which is in the following terms: "

"However, in considering whether the reasons given by an industrial tribunal comply with its statutory obligation, it is very important to keep in mind the issues which the industrial tribunal was dealing with. It has, of course, to reach conclusions on the issues which the statute raises, viz. in the present case, have the employers established that the reason for the dismissals was redundancy and, if so, did they act reasonably in treating the redundancy as a sufficient reason for dismissing the employees? But, whilst it must consider all that is relevant, it need only deal with the points which were seen to be in controversy relating to those issues, and then only with the principal important controversial points … ."

"The industrial tribunal made a fundamental error of law in asking itself and in answering the wrong question, a different question from that required by the Act of 1976. In Glasgow City Council v Zafar [1998] ICR 120 , 123, Lord Browne-Wilkinson, with whose speech the other four members of the appellate committee concurred, said: '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?) … it is convenient for the purposes of analysis to split that question into two parts – (a) less favourable treatment and (b) racial grounds …' The first part of the question is: was the applicant treated by Marks & Spencer Plc less favourably than they treated or would treat another person of a different racial group in the same or relevantly similar circumstances? The answer to this question requires a comparison to be made between the treatment of the applicant and the treatment of a 27-year-old applicant of a different racial group with similar experience and qualifications applying for the same job. The tribunal did not attempt to make the compulsory comparison. Instead, it simply asked itself whether there was 'bias' on the part of Mrs Cherrie and Mr Walters against the applicant and concluded that there was. This approach is defective."

"Such an assessment cannot be beyond the powers of the tribunal. No doubt it will be a matter of degree whether the tribunal can give effect to its own view of the aptitude and skills of a particular individual. But in the present case the tribunal considered that Ms Scruton's assessment was 'plainly ridiculous'. Secondly I would hold that on the detailed oral evidence before it the tribunal was entitled to infer that Ms Scruton formed the view that the applicant was anti-management solely on the basis of her prior knowledge of his complaints against L.R.T. The drawing of such inferences is a paradigm of the fact-finding functions of the tribunal. In these circumstances it is impossible to say that the decision of the tribunal was perverse or irrational. Conclusion In the result I would hold that the Court of Appeal erred on all three points. I would allow the appeal and restore the decision of the industrial tribunal."