LONDON BOROUGH OF LEWISHAM v MS ORLENE HENRY [2001] UKEAT 153_00_0902

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 153_00_0902Case No Appeal No. EAT/153/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
LONDON BOROUGH OF LEWISHAMAPPELLANTMS ORLENE HENRYRESPONDENT
Before
His Honour Judge Peter Clark Mrs T A Marsland Mr K M YoungDate 9 February 2001
[1]APPEARANCES For the Appellant MR E JANKOWSKI Solicitor Lewisham Legal Services Lewisham Town Hall London SE6 4RU For the Respondent MR A ZIMUTO (of Counsel) Instructed by: Ms S Larmer UNISON Employment Rights Unit 1 Mabledon Place London WC1H 9AJ JUDGE PETER CLARK Ms Orlene Henry commenced employment with the London Borough of Lewisham in November 1989. She worked from the Sydenham Neighbourhood Housing Office.[2]On 3 November 1997 she presented her first Originating Application (the first complaint) to the Employment Tribunal alleging race discrimination and on 22 April 1998 presented a second complaint alleging race discrimination and/or victimisation. In addition to Lewisham she named as Respondents Ms Christine Warwicker and Ms Sue Clinton.[3]The complaints were heard together by a Tribunal sitting at London South under the chairmanship of Ms C Taylor from 6 - 22 September and were considered in chambers by the Tribunal on 26 - 28 October 1999. Eleven separate allegations were identified in the first complaint and two further allegations were raised in the second complaint.[4]By a reserved decision promulgated with extended reasons on 22 December 1999 the Tribunal dismissed the first complaint in its entirety and further dismissed the Applicant's claims against the named individual Respondents, Ms Warwicker and Ms Clinton. As to the second complaint they found one, not the other allegation of race discrimination proved. That finding is expressed by the Tribunal in this way in the decision:
"….Lewisham unlawfully discriminated against the Applicant when it failed to take action to ensure that the Applicant had a safe working environment following its investigation into the incident which occurred on 23 January 1998."
Against that finding Lewisham bring this appeal.[5]The facts It is clear from reading the Tribunal's findings that the Sydenham Neighbourhood Housing Office was not a happy ship and that the Applicant proved difficult to manage. Ms Johnston, the Customer Services Manager from 31 July 1995 until February 1997, described without exaggeration, so the Tribunal found, how she came close to a nervous breakdown as a result of her efforts to manage the office. Ms Warwicker, who replaced Ms Johnston, with effect from 24 March 1997, did in fact suffer clinical depression leading to her being an inpatient in a psychiatric hospital from 16 January until 9 February 1998.[6]It was during that period that Ms Warwicker was shown a newsletter published by the trade union, Unison, which accused the housing managers of being racist. Incensed by that she left the hospital on 23 January 1998 and tricked her way into the local Unison office where she ranted and threatened the branch secretary, Derrick Barton, with six-inch masonry nails. She also shouted at and intimidated another union member. She said that she wanted to damage people who wanted to hurt her and added "When you try to get people to do their [expletive deleted] work they take up a grievance against you and call you racist". We interpose that the Applicant, who is black, was not present at the union offices on that occasion; indeed she was on leave at the time from her work. By this time the Applicant had taken out two separate grievances against Ms Warwicker, the second of which, dated 14 July 1997, had been superseded by a further grievance dated 28 July alleging race discrimination. Ms Warwicker is white. Following her tirade, Ms Warwicker left the union offices before security staff could be called to eject her.[7]Mr Barton was understandably shaken by this incident and he reported it to Steve Gough, Assistant Director of Housing. He told Mr Gough that he believed the Applicant and the union convenors Mr Stephenson and Ms Atwell were at risk from Ms Warwicker. The Applicant was informed of the incident by Ms Clinton, the Neighbourhood Manager, who visited her at home.[8]Mr Gough considered, at Mr Barton's request, whether to seek a Court Order restraining Ms Warwicker from carrying out her threats directed at the Applicant and the union convenors. Having discussed the matter with other housing managers and personnel managers, although not with the Council's solicitors, Mr Gough concluded that taking such a step would be futile, first because the Council would, in such proceedings, have to reveal the home addresses of the union officers involved, secondly, possibly bearing in mind Ms Warwicker's then mental state, because he felt that an injunction would not guarantee the prevention of a future attack.[9]The Tribunal's self-direction in law At paragraph 85 of their reasons the Tribunal directed themselves as to the relevant law. They identified the question posed by section 1(1)(a) of the Race Relations Act 1976 ; was the Applicant treated less favourably than other employees on racial grounds? They reminded themselves of the well-known guidance given by Neill LJ in King v GB China Centre [1991] IRLR 513 , and they paid attention to the principle in Glasgow City Council v Zafar [1998] IRLR 36 , that a Tribunal which finds less favourable treatment and a difference in race is not bound to infer that the treatment was accorded on racial grounds. It must consider whether that was the reason for the treatment.[10]The Tribunal's findings The Tribunal's reasoning which led them to uphold the Applicant's complaint on the single ground identified above is contained in paragraph 102 of their reasons. We should set it out in full:
"102 The London Borough of Lewisham failing to take action to ensure that the Applicant had a safe working environment following its investigation into the incident of 23 January 1998. We find that the Applicant was treated less favourably than others on grounds relating to race. Ms Henry was absent from work and on holiday. Ms Clinton discussed with her what steps could be taken as protection against Ms Warwicker. It appears therefore that the Respondent accepted that it was possible that Ms Warwicker might return to harm the Applicant. Having decided that an injunction would not be obtained the Respondent failed to make any alternative arrangement to ensure that either the Applicant or the union convenors would receive protection in the event that Ms Warwicker sought to do them any harm. The Respondent took no steps to contact the hospital or the police. They had no grounds on which to believe that the events would not recur and we consider that without having sought professional medical and other advice it was not reasonable of the Respondent to remain complacent. Ms Warwicker had keys by which she could enter by the staff entrance or the public entrance. The Respondent failed even to consider whether some extra security for at least a short time to prevent Ms Warwicker gaining access to the building. We do not consider, however well intentioned, that providing the Applicant with a hairspray constituted sufficient steps to protect her security. We were satisfied that there was a prima facie case of less favourable treatment. We were not satisfied with the Respondent's explanation. We find therefore that the Applicant was less favourably treated. We do not accept the Respondent's explanation that they left it to Mr Barton at the union office to contact the police and for the union to take steps to protect its own members, including the Applicant"
[11]The Appeal Various points were taken in the Notice of Appeal, but at a preliminary hearing held in this case on 9 May 2000, identified two points which were considered to be arguable at this full hearing. They were formulated in this way:(1) The Employment Tribunal has not identified an actual comparator for the purposes of section 1(1)(a) of the Race Relations Act 1976, nor has it indicated by its reasoning that it has considered what treatment Lewisham would have meted out to an hypothetical comparator.(2) The Employment Tribunal has proceeded from rejecting Lewisham's explanation for the treatment complained of to automatically draw an inference of unlawful race discrimination. That approach disregards the House of Lords guidance given in Glasgow City Council v Zafar [1998] IRLR 36 ."[12]In advancing the appeal Mr Jankowski submits first that the Tribunal has given no explanation as to why it found that the Applicant was less favourably treated than a hypothetical white comparator would have been treated in the same circumstances. He relies on the reasoning of Lord Morison in the Court of Session judgment in Zafar , expressly approved by Lord Browne-Wilkinson in his speech in Zafar at paragraph 12 of the IRLR report. It cannot be inferred, let alone presumed, merely from the fact that the employer has, as this Tribunal found, acted unreasonably towards one employee, that he would have acted reasonably if he had been dealing with another in the same circumstances.[13]Secondly, he submits that there are no findings of primary fact and no explanation by the Tribunal as to why they inferred less favourable treatment on racial grounds in this case. cf Chapman v Simon [1994] IRLR 124 , paragraph 33(3). Per Balcombe LJ. A mere intuitive hunch that there has been unlawful discrimination is insufficient without facts being found to support that conclusion, ibid per Peter Gibson LJ, paragraph 43.[14]In response, Mr Zimuto, in a submission conspicuous for its integrity even by the generally high standards of the Bar, was driven to accept that on the first ground of appeal the Tribunal's reasons lacked any explanation for their finding of less favourable treatment of the Applicant when compared to a hypothetical comparator. There was no actual comparator. Further, the treatment complained of was not race specific so as to obviate the need for a hypothetical comparison. Compare Sidhu v Aerospace Composite Technology Ltd [2000] IRLR 602 , paragraph 31, per Peter Gibson LJ.[15]Equally, he was unable to point to any finding or explanation by the Tribunal as to why they decided to draw the inference of unlawful discrimination, having found the Respondent's explanation for the treatment complained of inadequate.[16]We accept the common ground between Counsel. In our judgment both grounds of appeal are made out. The Tribunal fell into error as a matter of law. Accordingly this appeal is allowed.[17]Disposal It is again common ground that the material complaint on which the Applicant succeeded below is a discrete one.[18]Mr Jankowski invites us to order that that allegation only be reheard by a differently constituted Employment Tribunal. He advances two grounds in support of that course. The first is that he wishes to challenge certain findings of fact made by Ms Taylor's Tribunal. That is not a proper ground for remitting the case to a different Tribunal. However the second ground is more substantial. He contends that having reached a firm conclusion on the issue the original Tribunal cannot be expected to reconsider the matter impartially. Whilst we do not accept that as a fact, we can see that there will be a perception of partiality were the matter to return to the same Tribunal. Accordingly, on that ground, we shall direct that it be reheard by a differently constituted Tribunal.[19]No Order as to costs.