MR C ANIEDOBE v LONDON BOROUGH OF HAMMERSMITH & FULHAM [2000] UKEAT 481_98_1102

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 481_98_1102Case No Appeal No. EAT/481/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR C ANIEDOBEAPPELLANTLONDON BOROUGH OF HAMMERSMITH & FULHAMRESPONDENT
Before
Mr Justice Charles Ms S R CorbyLord Davies of CoityDate 11 February 2000
[1]APPEARANCES For the Appellant MS N BRAGANZA (of Counsel) Instructed By: Mr Tony Eaton (Solicitor) For the Respondents MR D STILITZ (of Counsel) Instructed By: M/s Karen Tickner Legal Services Division London Borough of Hammersmith & Fulham Town Hall King Street London W6 9JN MR JUSTICE CHARLES : The parties to this appeal are a Mr Aniedobe (the Applicant before the Employment Tribunal and the Appellant before us) (the Appellant) and the London Borough of Hammersmith and Fulham (the Respondent Borough). The appeal is against a decision of an Employment Tribunal sitting at London (North), the Extended Reasons for which were sent to the parties on 4 February 1998. The Employment Tribunal sat for five days in January 1998. The Extended Reasons contain a Reserved Decision and the Reasons for it.[2]The decision was that the Appellant "was not racially discriminated against and this application fails". Procedural History[3]The Appellant prepared a Notice of Appeal dated 14 March 1998. It is a lengthy document and it is not the Notice of Appeal that is now before us.[4]The Chairman of the Employment Tribunal commented on the original Notice of Appeal by a letter dated 30 April 1998.[5]The Appeal came before this Tribunal by way of Preliminary Hearing on 20 July 1998, when this Tribunal made the following[6]The Appellant prepared and served an amended Notice of Appeal dated 27 July 1998 and the Borough put in an Answer to that on 19 August 1998. This amended Notice of Appeal and Answer are not the Notice and Answer before us today because they have both been subsequently amended.[7]A hearing for directions took place before the President (Morison J) on 19 November 1998. The President declined to determine the key issues on this appeal and said this:
"I do not consider that it is my function to seek to determine the key issues of the appeal. It seems to me that my function is to make sure that whether the hearing comes before the full court, the case will be in a shape which can readily be managed. Accordingly, I think that the first steps that should be taken at this time, is to order that an amended notice of appeal be filed on behalf of the Appellant in this case and that it should be filed within 28 days of today. If there is difficulty about complying with the time limit in that order, then I will give liberty to apply that application may be made in writing without the need for a further attendance here, and obviously the respondents must be given an opportunity to say what they wish in response to that application. It is likely that if an application is made and granted, that there will be an Unless Order attached to that further order, because it does seem to me that the time has now arrived where we need to make clear that which is not clear at the moment and which was not clear at the Employment Appeal Tribunal on 20 July when the matter was last before it. As to notes of evidence I have indicated to the parties the general reluctance of the Employment Appeal Tribunal to make an order for notes of evidence, for a number of reasons, not least because they are almost always not pertinent to any issue of law which must be raised in a notice of appeal, but it seems to me that no adjudication can be made on that matter until after the issues on the appeal have been properly clarified. When that has been done, if there is need to apply for notes of evidence, then such application will have to be made and supported by a skeleton argument specifying precisely what evidence is required and to what issue that relates in the amended notice of appeal and why it is said that the point cannot be dealt with without the notes. If such an application is made whether resisted or not it will be considered at an oral hearing, ordering notes of evidence is not something that I would be prepared to do as a result of merely a written application, whether it was opposed or not."
The order made by the President on this hearing was in the following terms:
"IT IS ORDERED that leave be granted to re-amend the Notice of Appeal within 28 days of the date of this Order in accordance with the Judgment of the Employment Appeal Tribunal. LIBERTY to apply in writing for a further extension of time in which to file the re-amended Notice of Appeal if so required. IT IS FURTHER ORDERED that the application for Chairman's Notes of Evidence be adjourned pending the compliance of the Order."
[8]A re-amended Notice of Appeal dated 26 February 1999 was served and the Respondent Borough's Answer to that re-amended Notice of Appeal is dated 12 April 1999. These are the Notice of Appeal and Answer that are before us today.[9]No application was made for Notes of Evidence in accordance with the comments and order of the President, or at all.[10]In addition to the re-amended Notice of Appeal and Answer we have received Skeleton Arguments from the representatives of the parties. We are grateful for these. The Grounds of Appeal[11]These are identified in the Appellant's Skeleton Argument. They are as follows:
" Grounds of Appeal"
In different order from that set out in Appellant's re-amended Notice of Appeal of 26 February 1999 the grounds of challenge are as follows: (a) Direct discrimination – (i) The misapplication of law by the Employment Tribunal in considering the Appellant's claim of direct discrimination; (ii) Its failure to give adequate or any reason for its final conclusion that the Appellant suffered no discrimination. (b) Victimisation – The misapplication of law by the Employment Tribunal in its failure to consider at all whether the circumstances of the Appellant's claim and its own findings fell within the provisions of Section 2 of the Race Relations Act 1976, so amounting to a finding of victimisation. (c) Procedural Unfairness of the Employment Tribunal. (d) Misapplication of the evidence of facts by the Employment Tribunal and so reaching a conclusion no reasonable Employment Tribunal could have made.

(c) and (d) of the Grounds of Appeal

[12]Before us Counsel for the Appellant did not pursue these grounds of appeal. In our judgment Counsel for the Appellant was correct to take this course for the following reasons:(a) On the information we have we are of the view that if at the Preliminary Hearing, or at the Hearing for Directions that took place, this Tribunal had considered whether or not these grounds disclosed points of law that were reasonably arguable it would have concluded that they did not,(b) as to the allegation of procedural unfairness, in our judgment the letter from the Chairman of the Employment Tribunal and the Skeleton Argument put in on behalf of the Respondent Borough indicate that assessed through the eyes of a third party observer there was no procedural unfairness and the decisions complained of were well within the range of the discretion of the Employment Tribunal, and(c) as to ground(d) in the absence of Notes of Evidence it would not be practical for this Tribunal to deal with this ground of appeal, no application for Notes of Evidence was made on behalf of the Appellant and, in any event, on the information before us we are of the view that such an application would have been refused.

(a) of the Grounds of Appeal – direct discrimination

[13]Firstly it is said that the Employment Tribunal misapplied the law in considering the Appellant's claim of direct discrimination. The alleged misapplications are as follows:(i) The Employment Tribunal did not address its mind to the correct comparator. It was submitted that the comparator should be a white employee and in paragraph 21 of the Extended Reasons the Employment Tribunal refer to an employee "of a different ethnic origin".(ii) In considering whether the investigating panel made up of Mr Davies and Ms Wilkinson were biased the Employment Tribunal asked itself the wrong question and approached the case incorrectly.(iii) The Employment Tribunal erred in its approach to the issue whether or not it should draw an inference of direct discrimination. We shall deal with these in turn.[14]In our judgment the allegation that the Employment Tribunal referred to and considered the case by reference to an incorrect comparator is a bad one. In our judgment this ground of appeal is based upon a reading of the Extended Reasons that is too technical and therefore incorrect (for example see Holister v National Farmers Union [1970] ICR 542 at 552/553). We agree with the submission made on behalf of the Respondent Borough that in their Extended Reasons the Tribunal do not seek to differentiate between terms such as "race discrimination", "discrimination on the basis of his ethnic origin" and "discrimination on the basis that he is black". Further we agree that it appears from the Extended Reasons that the Employment Tribunal considered whether or not the Appellant had been discriminated against on the basis of his race by looking at the issue of his colour and his ethnic origin. The fact that they considered the issue by reference to his colour and, in particular, that he was black and the investigating panel were white appears in their outline of the Appellant's allegations in paragraph 2 of the Extended Reasons where they state:
"2 … He particularly complained that both members of the investigation panel, Mr R Davies and Ms A Wilkinson were white. In his opinion, a fair panel would have consisted of a white and a black person."
[15]At the beginning of paragraph 2 of the Extended Reasons the Employment Tribunal refer to the fact that the Appellant is of Nigerian ethnic origin. As we read that sentence it is a recognition by the Employment Tribunal both of his ethnic origin and of the fact that he is black. That latter fact is picked up in the quotation we have set out above which appears later in paragraph 2.[16]It follows that from a reading of the Extended Reasons alone we are satisfied that(i) the Employment Tribunal considered whether the Appellant had been discriminated against because he was black and of Nigerian ethnic origin,(ii) the Employment Tribunal considered whether the Applicant would have been treated differently if he was white and(iii) in context a fair reading the last sentence of paragraph 21 of the Extended Reasons (cited in paragraphs 24 and 30 hereof) is that the Employment Tribunal concluded that the investigation would have been conducted in the same manner with an employee who was white.[17]We also accept the submission made on behalf of the Respondents in their Skeleton Argument that during the course of the hearing both the Appellant and the Respondent used the terms "race discrimination" and "discrimination on the basis that the Applicant is black" interchangeably. For example, this can be seen from the Appellant's written submissions to the Employment Tribunal. Further, the Appellant in his closing written submissions to the Employment Tribunal refers to the Black Workers Group, of which he was Chairman, as "an ethnic group".[18]Accordingly, in our judgment, this ground of appeal fails.[19]In support of the second alleged error of law under this heading we were referred on behalf of the Appellant to Marks & Spencer Plc v Martins v [1998] ICR 1005, in particular at 1019, between C and G where Mummery LJ says this:
"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. In a complaint under the Act of 1976 the focus is not on whether the conduct of the employer or putative employer towards the complainant is biased or unreasonable or unfair: as Lord Browne-Wilkinson said in Glasgow City Council v Zafar the fact that an employer has acted unreasonably, for example, in the sense relevant to a claim for unfair dismissal, casts no light whatsoever on the question whether he has treated the employee 'less favourably' for the purposes of the Act of 1976. Adapting the words of Lord Morison in the Court of Session in Glasgow City Council v Zafar , [1997] S.L.T. 281, 284, it cannot be inferred only from the fact that the interviewers acted in a biased way towards the applicant, that the same interviewers would have acted in an unbiased way in dealing with another applicant in the same circumstances. The tribunal wholly failed to address itself to the issue, which the applicant had to establish in order to make out a claim for racial discrimination, whether she had been treated less favourably than the interviewers would have treated another applicant in the same circumstances. The finding that Marks & Spencer Plc interviewers were guilty of 'bias' against the applicant is not a relevant or meaningful finding for the purpose of the Act of 1976."
[20]The first, and in our judgment by itself a conclusive, answer to this ground of appeal is that in dealing with the issue whether or not the investigators were biased the Employment Tribunal was dealing specifically with an allegation which was made repeatedly by the Appellant that the investigators were biased. Counsel for the Respondent took us to six written examples of this allegation being made by the Appellant. We stopped him from referring us to further such examples.[21]It follows that the issue whether or not the investigators were biased was at the heart of the Appellant's case. We have no doubt that if the Employment Tribunal had not dealt with this allegation in terms they would have been criticised by the Appellant for not doing so.[22]Looking at the facts of the Marks & Spencer case set out at pages 1014 B, 1015 A and 1016 B/C [1998] ICR, we are not sure why Lord Justice Mummery says that the Employment Tribunal in that case "simply asked itself whether there was 'bias' on the part of Mrs Cherrie and Mr Walters against the Applicant and concluded that there was". However, on the assumption that that is all that the Employment Tribunal did in that case it seems to us that there is a distinction between:(a) a case in which an Employment Tribunal asks itself that question and concludes from its finding of bias that there was direct discrimination, and(b) a case such as this one in which the main allegation of the Appellant is that there was bias and having regard thereto that direct discrimination should be inferred and find that there was no such bias.[23]It seems to us that in the latter type of case the passage cited above from the Marks & Spencer case is not wholly in point. Of course that is not to say that an Employment Tribunal can properly simply ask themselves the question "were the investigators biased?". They have to consider that question in the statutory context and thus in the light of the statutory question referred to in the citation in Marks & Spencer and in Glasgow City Council v Zafar [1998] ICR 120 , at 123 H.[24]It seems to us that on a fair reading of the Extended Reasons the Employment Tribunal in this case have considered the Appellant's allegation of bias and that the investigation was unfair and amounted to harassment in the context of the statutory question posed by the Race Relations Act. In our judgment this appears from paragraphs 20 and 21 of the Extended Reasons when they are read against the earlier findings of fact. Paragraph 21 is in the following terms:
"We have made findings that the Respondent could have conducted the investigation in a different manner and we have expressed our concerns from the evidence that we have heard. However, we cannot infer from this evidence that the Respondent has behaved, in conducting the investigation, in a racially discriminatory manner. The investigation may well have been conducted differently. However, we find that they would have conducted the investigation in the same manner with an employee of a different ethnic origin from that of Mr Aniedobey."
[25]In our judgment that paragraph, and in particular the final sentence, show that the Employment Tribunal were considering the correct statutory question (viz. Has the complainant been treated less favourably than others on racial grounds?). Indeed, it is clear that this last sentence indicates that the Employment Tribunal was making a comparison. Indeed this is confirmed by the first alleged error of law under this heading, which we have already dealt with, and is that they were making the wrong comparison.[26]The third alleged error of law under this heading is that the Employment Tribunal erred in its approach to the issue whether it should infer direct discrimination. We do not agree.[27]This ground of appeal is advanced in the face of the recital by the Employment Tribunal of the relevant cases in paragraph 20 of Extended Reasons.[28]In considering this ground it should be remembered that the way in which the Appellant put his case was to criticise certain aspects of the investigation. Each of his allegations of criticism are dealt with in paragraphs 12 to 19 of the Extended Reasons and findings are made in respect of each of them. In doing so the Employment Tribunal expressed some concerns and made some comments as to past and future conduct by the Respondent Borough in particular in paragraphs 12, 13, 16 and 19 of the Extended Reasons. It was argued that the Employment Tribunal erred in not looking to the Respondent Borough for an explanation in respect of the comments and concerns expressed in the Extended Reasons by the Employment Tribunal. We do not know the extent of any evidence or submission before the Employment Tribunal in respect of those comments and concerns but we accept that the Extended Reasons do not set out the comments, reasons or explanations of the Respondent Borough in respect of such comments and concerns. In our judgment whatever the extent of the evidence or submissions before the Employment Tribunal as to these comments and concerns the argument that the Employment Tribunal erred in not looking to the Respondent Borough for an explanation has no force because:(a) the comments and concerns flow from and are in respect of the allegations made by the Appellant and were made by the Employment Tribunal having regard to the evidence,(b) the fact that the Employment Tribunal made the comments and expressed the concerns demonstrates the absence in their mind of any adequate explanation, and therefore(c) the comments and expressed concerns found the argument of the Appellant that they are factors to be taken into account in considering whether or not an inference that the Appellant was less favourably treated on racial grounds should be drawn, but(d) as explained below the Employment Tribunal did take their comments and concerns into account in that consideration.[29]The wider argument put by the Appellant was that having regard the comments and concerns expressed by the Employment Tribunal it had sufficient evidence to infer discrimination on racial grounds and that it erred in law(i) in failing to do so, and(ii) in not considering whether or not to draw an inference having regard to the totality of the surrounding facts and circumstances (see Qureshi v Victoria University of Manchester and Brazier (1996) EAT 484/95). We reject this argument.[30]In our judgment a fair reading of the Extended Reasons as a whole demonstrates(i) that in making the comments and expressing the concerns it did the Employment Tribunal had in mind that they might have found an inference that the Appellant was treated less favourably on racial grounds (see in particular the opening words of paragraph 21 of the Extended Reasons), and(ii) that the Employment Tribunal had regard to the totality of the surrounding facts and circumstances in concluding that: " they would have conducted the investigation in the same manner with an employee of a different ethnic origin from that of Mr Aniedobe" and thus in refusing to make the inference (and thus the finding) they were invited to make by the Appellant.[31]Additionally the Appellant argued that the Employment Tribunal failed to give any, or adequate, reasons for its decision that the Appellant suffered no discrimination. In particular it was submitted that there was no reasoning at all as to why the Employment Tribunal did not draw the inference that the Appellant had been less favourable treated on racial grounds. This submission is therefore linked closely to, and to a large extent overlaps with, the submissions relating to the drawing of an inference. We do not accept it.[32]Whilst we accept that the Appellant disagrees with the decision of the Employment Tribunal in our judgment a fair reading of the Extended Reasons shows why he lost. In our judgment the Employment Tribunal considered its findings of primary fact and its comments and concerns in the context of the totality of the circumstances in reaching the conclusion cited in paragraph 30 above. That conclusion alone, and together with the findings on the allegations made by Appellant, shows why he lost. The fact that the Appellant does not agree with that conclusion (and those findings) does not mean(i) that the Extended Reasons do not explain why he lost, or(ii) that the Extended Reasons do not explain adequately why the Employment Tribunal reached that conclusion having regard to the evidence.

(c) – victimisation

[33]The Appellant argued that the Employment Tribunal erred in law because it did not raise and then go on to deal with and make findings as to whether the Appellant had been victimised. We do not accept this argument.[34]As to this argument it was accepted that(i) the Appellant did not assert that he had been victimised, and(ii) in our judgment correctly it was not asserted that a claim for victimisation was particularised in the IT1, in which Box 1 is blank and Box 12 asserts and particularises a claim for "Racial harassment". He did not make his claim by reference to a protected act and thus, for example, he did not assert that he had been less favourably treated because he had instigated a complaint under the harassment procedure.[35]It was however submitted that(i) paragraph 12 of the Extended Reasons contained the ingredients of a claim for victimisation post the decision of the House of Lords in Nagarajan v London Regional Transport (Times 19 July 1999), and(ii) in reliance on the decision of this Tribunal in Quarcoopome v Sock Shop Holdings Ltd [1995] IRLR 353 that discrimination claims cover all types of discrimination and therefore a claim for victimisation was included in the Originating Application.[36]As to point (i):(a) This case was heard by the Employment Tribunal well before the House of Lords decision in the Nagarajan case and therefore at a time when the subjective motivation of the employer was relevant. That element is missing from paragraph 12 of the Extended Reasons. Further in considering whether the Employment Tribunal should itself have raised and dealt with a claim of victimisation this point should be remembered.(b) In our judgment although paragraph 12 refers to deterrence and thus a reason for making victimisation unlawful it does not refer to a protected act. In our judgment the reference to the Appellant's sense of grievance does not do this (or at least does not do it clearly) because it should be read with paragraph 6 of the Extended Reasons.[37]We were also referred by the Appellant to Mensah v East Hertfordshire NHS Trust [1998] IRLR 531 and Tchoula v Netto Foodstores EAT/1378/96. These cases show that it is good practice for an Employment Tribunal to clarify and identify the issues. Naturally we agree. But this does not mean that an Employment Tribunal has a duty in law to raise of its own motion a complaint that is not pleaded or asserted by the Applicant, or which is not raised by the Applicant in the sense that he is putting forward all the factual elements of the existence of a complaint. Indeed in the Mensah case the Court of Appeal held that there was no duty on an Employment Tribunal of its own motion to ensure that every allegation in an originating summons is dealt with (see in particular paragraphs 14 to 17 and paragraph 20). The Appellant relied in particular on the reference in the middle of paragraph 20 to it being a matter for the judgment of the Employment Tribunal in the circumstances of a particular case whether of its own motion it should investigate any pleaded complaint which it is for the litigant to prove but which he is not setting out to prove. But that paragraph ends with making the point that such a matter of judgment should not be raised into a duty leading to a conclusion that an error of law has been committed when that duty has not been complied with and the sentence:
"There was no such duty and accordingly there was no error of law"
[38]In our judgment if (as was held to be the case) there was no duty on the Employment Tribunal in the Mensah case to raise of its own motion the allegation made in the originating application but not pursued by Mrs Mensah at the hearing, and therefore it had not erred in law in not doing so:(a) there was no duty on the Employment Tribunal in this case to raise of its own motion and deal with a complaint of victimisation, and therefore(b) they did not err in law in not doing so.[39]We add that in our judgment:(a) this conclusion accords with the decision of the Court of Appeal in Chapman v Simon [1994] IRLR 124 , and(b) when a claim is raised and is being pursued by an Applicant different and additional considerations arise in connection with the duty of an Employment Tribunal to consider the legal elements (or possible legal elements) of such a claim (see for example Langston v Cranfield University [1998] IRLR 172 ).[40]Further we add that the good practice of an Employment Tribunal seeking to identify and clarify the issue at a preliminary hearing or at the start of a full hearing is a practice that seeks to promote fairness for both sides. Race and sex discrimination are serious and damaging wrongs or unlawful acts and have been described as evils. It follows that allegations of race or sex discrimination raise serious issues and the making of false or unfounded allegations of race or sex discriminations are also serious and can be very damaging. It is thus good practice to promote fairness for both sides by seeking to ensure that(i) the Applicant identifies and puts his or her case ,(ii) the Respondent identifies and puts its defence and therefore(iii) both sides (and the individuals involved on both sides) know the allegations that are being made and have a proper opportunity to prepare and present their cases.[41]The conclusion in paragraph 38 above has the result that this ground of appeal fails even if the Quarcoopome case has the effect contended for by the Appellant namely that a claim for victimisation was included in the Originating Application. However as we heard argument based on the Quarcoopome case we express our views on it and that argument.[42]In this case the Quarcoopome case was relied on in respect of a claim for victimisation. First we mention that we agree with the conclusion of this Tribunal in Lewis v Blue Arrow Care Ltd (EAT/649/99) that:
"The observation by Buckley J in Quarcoopome that a claim of race discrimination includes a claim of victimisation was not necessary for the determination in that case and should be treated as an obiter remark. In our view, it cannot stand in the light of the Court of Appeal's judgment in the Bryant case."
The Bryant case is Bryant v The Housing Corporation [1999] ICR 123 . It follows in our judgment that a claim for victimisation in this case would have been a new claim not raised in the Originating Application.[43]The Lewis decision is confined to a claim for victimisation. We would go further.[44]If it had been necessary for us to do so we would have refused to follow the Quarcoopome case because in our judgment, for the reasons given in Smith v Zeneca (Agrochemicals) Ltd (EAT/1450/98), it is wrong. This would have had the consequence that we would have held that a claim for victimisation in this case would have been a new claim not included in the Originating Application.[45]Further, and in any event, in the Quarcoopome case this Tribunal concluded that an originating application which makes a claim for race discrimination incorporates any claim for direct or indirect race (or sex) discrimination and victimisation, and on that basis held that:(a) the addition to an originating application of an allegation of indirect discrimination that was "very difficult to understand from the existing paragraphs in the originating application" and therefore had not been previously particularised was not to be treated as a new claim and thus as a claim that was out of time, and(b) on the basis that the application to add the claim was to be treated as an application to amend the highest test that the Employment Tribunal should apply was to see whether any hardship or prejudice would be incurred by the Respondents sufficient to justify rejecting the application.[46]Therefore the Quarcoopome case:(a) recognises and proceeds on the basis that the additional claim therein of indirect discrimination could not be made without leave being given to add it (by way of amendment or particularisation) and it is therefore not authority for the propositions (i) that the Appellant in this case could make a victimisation claim without amending or particularising or otherwise giving proper notice of that claim, or (ii) that the Appellant in this case could make a victimisation claim without obtaining the permission of the Employment Tribunal to add it to the issues they were to decide, and(b) is not authority for the proposition that in this case the Employment Tribunal should of its own motion have raised or considered a claim for victimisation. Overall Conclusion[47]For the reasons set out above this appeal is dismissed.

Order

"THE TRIBUNAL ORDERS that there be an inter partes meeting for directions before a Judge alone to be listed for one and half hours to determine the key issues of the appeal what Chairman's Notes of Evidence if any are required and to consider any further directions. THE TRIBUNAL GIVES LEAVE to the Appellant to amend the Notice of Appeal with the assistance of the Employment Law Appeal Advice Scheme within 7 days."