(1) MISS S THOMAS (2) COMSOFT LIMITED v MS J ROBINSON [2002] UKEAT 737_01_2110

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 737_01_2110

Case No Appeal No. EAT/737/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

(1) MISS S THOMAS (2) COMSOFT LIMITEDAPPELLANT

MS J ROBINSONRESPONDENT

Before

His Honour Judge J R Reid

Date 21 October 2002

[1]APPEARANCES For the Appellants MISS B SUNDERLAND Solicitor Messrs Doyle Clayton Solicitors 69-70 Mark Lane London EC3R 7HS For the Respondent MR W PANTON (of Counsel) Instructed By: Mr W. Parry Davis Dowse & Co 23 & 25 Dalston Lane London E8 3DF JUDGE J R REID QC : Introduction This is an appeal from a decision of an Employment Tribunal held at London South on 7 March 2001. By its decision the Tribunal dismissed the bulk of the claims Ms Robinson had made and found she had not been unfairly dismissed by Comsoft Ltd. However it found that one remark made by Miss Thomas "constituted racial harassment" of Ms Robinson. Since it was made during the course of Miss Thomas's employment by Comsoft Ltd both she and Comsoft Ltd were held liable for racial discrimination contrary to sections 1(1)(a) and section 4(2)(c) of the Race Relations Act 1976 . The Tribunal awarded £2,500 compensation to Ms Robinson, £500 against Miss Thomas and £2000 against Comsoft Ltd. Against this decision Miss Thomas and Comsoft Ltd appeal.

[2]The two complaints made by the Appellants are(1) that their solicitor was not permitted to cross-examine Ms Robinson as she wished to and

(2) that the Tribunal erred in law by failing to address the question whether Ms Robinson suffered any detriment as a result of the conduct of the Appellants. The facts

[3]The underlying facts as found by the Tribunal were: Ms Robinson is of Black Afro-Caribbean origin. She was born and bred in or near Coventry. Comsoft is a small company with six employees at the time in question. It is the appointed dealer of Access Accounting Software ("Access") which represents 80% of its turnover. Apart from Ms Robinson all of its employees were white. Its employees are required by Access to attend and pass courses provided by Access for which Comsoft pays.

[4]Miss Thomas started work for Comsoft at the beginning of April 2000 as an office administrator. Miss Thomas was 27 and lived in a small village outside Great Yarmouth until one week before she started work with Comsoft. Ms Robinson started work for Comsoft on 25 April as a Computer Support Analyst. Both Miss Thomas and the Applicant were taken on a three month probationary period. The other employees of Comsoft were Mr Roger Chadwick (Managing Director), his wife, her son Nicholas Chadwick and the office manager, Joanne Manon. They all worked in one room.

[5]In separate conversations with the Applicant before June 2000, Miss Thomas(a) said that her dog was frightened of black people because it had been frightened by a black youth when it was young;

(b) discussed with the Applicant the fact that her parents had moved to Coventry from the Caribbean and how the Applicant was trying to bring up her daughter in the English and Caribbean lifestyle;

(d) referred to her former employers in Great Yarmouth as Pakis.

[6]From 12 to 16 June Ms Robinson and Miss Thomas were booked to attend a course run by Access at Colchester. Three days before the Access Course Miss Thomas asked Ms Robinson where her parents had lived. The Applicant explained that they had recently returned to Caribbean. Miss Thomas's response was that she had seen a programme about Caribbeans coming over here in the 60s to live and then returning. Miss Thomas's view was that "they come over here and scrounge off the system and then go back". The course was attended by some 12-16 delegates altogether and Ms Robinson and Miss Thomas both stayed at a small 4 bed room hotel called the Sun Hotel in a nearby village. Between Monday 12 and Wednesday 14 June further conversational exchanges took place between the Applicant and Miss Thomas in which Miss Thomas(a) invited Ms Robinson to her wedding and said (among other things) that she should not be offended if her elderly relatives looked at her and talked amongst themselves as they were not used to seeing non-white people

(b) referred to a fellow delegate on the Access course who was of Chinese origin as Chinky. The Applicant objected immediately to this. There was a substantial amount of evidence about the inter-relationship of Ms Robinson and Miss Thomas during the course and how they socialised but the Tribunal did not make any findings about it.

[7]At about 9.00pm on Wednesday 14 June the Applicant spoke on the telephone to Mr Roger Chadwick to complain about racist remarks made to her by Miss Thomas. He said this issue would be addressed at the meeting already fixed for Monday 19 June with Miss Thomas and Ms Robinson to discuss the course. After 9.00pm the Applicant went to the pub with a fellow delegate a Miss Dobson. She returned to her room in the Sun Hotel in the early hours with Miss Dobson and the barman of the pub, Luke. Miss Dobson stayed all night in the Applicant's room. Luke left between 4.30 and 5.00am. Their conduct and the noises and the nature of the noises they made led to complaints from other guests.

[8]After the course had finished on the journey back to London Ms Robinson complained in very direct terms to Miss Thomas regarding her alleged racist remarks. Miss Thomas apologised if what she had said had caused offence. Miss Thomas then rang Mr Roger Chadwick from her home at approximately 5.30pm on Friday 16 June. Mr Chadwick told her that there would be a formal investigation of the Applicant's complaint of racial abuse. Mr Chadwick also spoke to Mr Tierney, the manager of the hotel. It is to be noted that none of this occurred until after Ms Robinson's night-time activities had become an issue.

[9]Ms Robinson met Mrs Chadwick on Monday 19 June. They discussed the alleged racial abuse by Miss Thomas and the incident at the hotel. The Applicant did not give a full account of the incident at the hotel: she omitted the presence of Luke. Mrs Chadwick took note of the Applicant's complaint of racial abuse and said she would take it up with Miss Thomas. She sought to remedy the situation and referred to Miss Thomas as a Norfolk lass with a direct manner. She told the Applicant the incident at the hotel was serious and brought Comsoft into disrepute. She told the Applicant that she should not go on another Access course due to start the following day for two days at which she would have again stayed at the Sun Hotel. The interview concluded with Ms Robinson in tears. Mrs Chadwick suggested she collect her things and go home which she did. The Applicant did not return. That evening Monday 19 June Mr and Mrs Chadwick decided to dismiss Ms Robinson as a result of the hotel incident

[10]Miss Thomas was unwell on Monday 19 June but was told that she should go on the Access course for the following two days if she was well enough and she did. She was not interviewed by Mrs Chadwick until 18 July as Mrs Chadwick had to look after her grandchildren. Miss Thomas admitted making the comments referred to above and was given a verbal warning.

[11]Comsoft had no equal opportunities policy and before the incident complained of had taken no steps to prevent any racial abuse of Ms Robinson.

[12]Ms Robinson also alleged that Miss Thomas had said that in the afternoon of Wednesday 14 June Miss Thomas said to her, inter alia, regarding black people "they are criminals, always in trouble. I hate blacks. I never look at blacks when I am on the bus, just looking at them makes me sick". Miss Thomas denied using any such words or that she had had any conversation with the Applicant at that time. The Tribunal preferred Miss Thomas's evidence on the point. The conduct of the hearing

[13]During the course of Ms Robinson's evidence she said she had been shocked by Miss Thomas's outburst and deeply offended by her remarks. When the solicitor for Comsoft and Miss Thomas sought to ask her questions about the remark and its effect on her, the Chairman interrupted. His interruption was recorded contemporaneously by the solicitor as "all racial abuse detriment". He stopped further cross-examination on the subject. The Chairman made no note of his stopping cross-examination at the time. Almost exactly a year later he commented from memory:

"My recollection is that I enquired of the Appellant's solicitor Ms Sunderland the purpose of her cross examination of the Applicant, on how she felt about Miss Thomas's remarks. Ms Sunderland explained she was seeking to establish less favourable treatment. I said words to the effect that where race specific abuse is concerned it is accepted as less favourable treatment ….. My recollection is that I said that cross-examination on the point could only be to establish the degree of hurt caused to Ms Robinson and was therefore a matter for cross-examination on remedy should we ever get there."

We think that the contemporaneous note should be preferred. The Chairman, not having made any note at the time, was at a great disadvantage in recalling matters so long after the event and after, no doubt, dealing with many other cases in the meanwhile. Moreover his memory is plainly in error when he recalls Ms Sunderland explaining "she was seeking to establish less favourable treatment". It would have been Ms Robinson's advocate, not Miss Sunderland, who would have been seeking to establish that. The Tribunal's decision

[14]The Tribunal found that the words used by Miss Thomas to the Applicant to the effect that people of Black Afro-Caribbean origin "come over here and scrounge off the system and then go back" constituted "racial harassment" of the Applicant, but that none of the other disparaging remarks made by Miss Thomas discriminated against the Applicant on racial grounds as Miss Thomas would have used such terms to anybody regardless of race and they were not addressed to the Applicant on grounds of her race. The Tribunal went on:

"It is therefore our unanimous decision that Miss Thomas has committed an act of racial discrimination and that these remarks were made during the course of her employment on a work course paid for by Comsoft."

It therefore found racial discrimination both against Miss Thomas and against Comsoft. It found that the act of discrimination, while it was serious, was at the lower end of the scale. Comsoft was a small company and Miss Thomas as an individual had acted with ignorance and insensitivity but not in a high handed, malicious, insulting or oppressive manner. It made no award for aggravated damages, but made an award of £2,500 for injury to feelings £2,000 against Comsoft and £500 against Miss Thomas.

[15]Mr Panton, who appeared for Ms Robinson, accepted that the finding that the offending remark was made during the course of her employment on a work course paid for by Comsoft, was an error. This finding was inconsistent with the evidence and was contrary to the Tribunal's earlier finding that the remark was made about three days before the course. This may have been a significant error in the context of the case. The Appellants' case

[16]On behalf of the Appellants Miss Sunderland submitted that the Employment Tribunal erred in law in making its findings. It failed to consider whether there was "any other detriment" contrary to section 4(2)(c) of the Race Relations Act 1976 but simply jumped from the finding that the words were used to an assumption of detriment. In doing so it did not follow the correct tests. Detriment means being subjected to a disadvantage ( MOD v Jeremiah

[1980] QB 87

) and an unjustified sense of grievance could not amount to a detriment ( Barclay's Bank v Kapur

[1995] IRLR 87

). The only evidence before the Tribunal was as set out in the Applicant's written statement read out to the Tribunal when she stated that she had been "shocked by her outburst and deeply offended by her remarks" and the Appellants had been denied the chance to cross-examine on this point.

[17]Her submissions continued by relying on DeSouza v The Automobile Association

[1986] ICR 103

in which May LJ said at page 107:

"Racially to insult a coloured employee is not enough by itself, even if that insult caused him or her distress: before the employee can be said to have been subjected to "some other detriment" the Court or Tribunal must find that by reason of the act or acts complained of, a reasonable worker might or might take the view that he or she had thereby been disadvantaged in the circumstances in which he had thereafter to work"

. It was accepted that treatment which could lower the Applicant's standing in the eyes of others, especially superiors, is a detriment whether or not she knew of it at the time: see Garry v London Borough of Ealing

[2001] IRLR 681

. The Tribunal failed to consider the effect that these words had on the Respondent and had taken into account the actual alleged abuse rather than the effect of the alleged abuse on the Respondent contrary to the Court of Appeal's findings in DeSouza v Automobile Association

[1986] ICR 514

when it was stated that the offence or acts of abuse must be such that a reasonable employee might have felt disadvantaged in the circumstances and conditions of his or her employment. The Employment Tribunal failed to consider whether the Respondent's working environment had been affected in any way so as to result in a detriment.

[18]The Tribunal had not allowed cross-examination on the evidence that Ms Robinson had been "shocked by the outburst and was deeply offended by the remark". It heard no evidence and made no findings of fact that she felt that comments made by a colleague who had been employed for the same amount of time as she had and who had no influence and was not senior to her, would affect her position within the working environment. The Tribunal had misdirected itself by stating that all harassment will be deemed to be a detriment. The Respondent's case

[19]Mr Panton, on behalf of Ms Robinson, submitted that the Tribunal made clear findings of fact that the offensive remark was made by Miss Thomas, the Appellant, and decided that it constituted racial harassment of the Respondent, Ms Robinson. Less favourable treatment could consist of treatment of a particular type to which a person would not have been vulnerable but for her race, colour, nationality, or ethnic or national origins, such as racial harassment or abuse, Sidhu v Aerospace Composite Technology Ltd

[2000] IRLR 602

. It could also be based on assumptions about the characteristics of particular racial groups which have the effect that a person is treated not as an individual but as a racial stereotype, Alexander v The Home Office

[1998] 2 All ER 118

. The Tribunal distinguished between the racist remark and other disparaging comments relating to ethnic minority groups. None of the other disparaging remarks made by Miss Thomas discriminated against Ms Robinson on racial grounds as Miss Thomas would have used such terms to anybody regardless of race and they were not addressed to her on grounds of her race. By implication, therefore, the Tribunal was expressing its view that the racist remark was directed at the Respondent because of her race. He submitted that the Tribunal concluded that Ms Robinson was harassed because of her race, that the conduct is race-specific and so it was not necessary to show that a person of another race would be treated more favourably. The very action complained of was in itself less favourable treatment on racial grounds, Burton v De Vere Hotels

[1996] IRLR 596

[20]The Tribunal was, he submitted, entitled to find that Ms Robinson suffered a detriment as a result of the offensive racist remark. Subjecting her to "any other detriment" simply means no more than "putting her under a disadvantage", Ministry of Defence v Jeremiah

[1980] QB 87

; and lnsitu Cleaning Co Ltd v Heads

[1995] IRLR 4

. He referred to the dictum of Bingham LJ in Barclay's Bank Plc v Kapur

[1989] ICR 753

at 767G:

"Since 'subjecting him to any other detriment' is to be given its broad, ordinary meaning ... it is plain that almost any discriminatory conduct by employer against employee in relation to the latter's employment will be rendered unlawful by section 4 (2)."

Further, a single comment may be sufficient to found a claim. It is a matter of fact and degree, lnsitu Cleaning Co Ltd v Heads at para 11 . The Tribunal found that Ms Robinson "was shocked by her outbursts and deeply offended by her remarks". It was, in the circumstances, entitled to find, on the evidence, that Ms Robinson was put at a disadvantage by the Appellants' conduct. The Tribunal found the First Appellant's words constituted racial harassment. There was no separate finding of detriment because racial harassment was self-evidently a detriment. The decision of the Tribunal illustrates an approach which was both proper and unassailable in its conclusion. The Tribunal made a proper distinction between racist comment and other disparaging comments. It reached the decision that the Appellants discriminated against the Respondent after careful assessment of the witnesses and the evidence. The appeal disclosed no error of law. Discussion

[21]The words complained of should never have been used. Comsoft recognized this and disciplined Miss Thomas promptly for her remarks. The words were not directed at Ms Robinson, born and raised in Coventry, but they could have been taken as being aimed at her parents. It does not matter whether the words reflected Miss Thomas's own views or merely purported to relay the effect of a television programme.

[22]The Tribunal deprived the Appellants of the chance of cross-examining Ms Robinson about the effect of the words on her. Whether cross-examination would have made matters better or worse from the Appellants' point of view we cannot know. The issue of the effect of the words was not an empty one. The Tribunal erroneously said in its conclusion that the words were spoken during the course. They had been said some three days before the course, but no complaint was made at that time. During the course it is clear that Ms Robinson and Miss Thomas socialised and that they got on well enough for Miss Thomas to invite Ms Robinson to her wedding. There was material on which a substantial cross-examination could have been mounted as to the true effect of the words on Ms Robinson. This would only have been immaterial if the Tribunal was correct in its view that proof that the words were spoken was the end of the matter and that if they were there was necessarily detriment.

[23]If the treatment under consideration is race specific, then there is no need for the applicant to show that a person of a different colour would have been treated differently. The very act of abusing someone in respect of their race is in itself less favourable treatment on racial grounds: see Burton v de Vere Hotels at paras 18 and 19. That however is not the end of the matter because under section 4(2)(c) the employee must show that the employer has subjected "him to any other detriment". "Subjecting to any other detriment", it is well established, does not mean anything more than "putting at a disadvantage": see for example per Brandon LJ in Jeremiah at para 22. But the Act does require that the claimant shows that he or she has been subject to detriment.

[24]In DeSouza at para 19, May LJ (with whose judgment Slade and Neill LJJ agreed) said:

"Apart from the actual decisions in these cases, I think that this necessarily follows upon a proper construction of s4, and in particular s4(2)(c) of the Act. Racially to insult a coloured employee is not enough in itself, even if that insult cause him or her distress; before the employee can be said to have been subjected to some "other detriment" the court or tribunal must find that by reason of the act or acts complained of a reasonable worker would or might take the view that he had been disadvantaged in the circumstances in which he had thereafter to work."

That dictum must now be treated with some reserve because it is clear that some levels of distress will now be regarded as detriment, and in any event a requirement of working in an environment where racist remarks are tolerated may itself be a detriment.

[25]A single act of verbal sexual harassment is enough to found a complaint: see the Insitu case at para 11. There is no reason why the same should not be true of a single act of racial harassment. But a single instance of racial abuse does not necessarily amount to harassment. The expression "harassment" involves two elements. The first is the targeting of the person being harassed. The second is the causing of distress to the target. The word is used in the context of discrimination proceedings as a shorthand to comprise the two elements which taken together make up actionable discrimination. Thus in the Insitu case Mrs Heads(a) suffered a grossly offensive remark and

(b) was very distressed by it. Similarly in the De Vere Hotel case Misses Burton and Rhule (a) suffered racist and sexist abuse and (b) were considerably upset and offended. Thus a Tribunal which is considering whether an employee has been discriminated against by the use of racist language should consider both whether the language has been used and whether the employee has suffered detriment as a result. If both elements are established, then as a matter of shorthand it can be said that the employee has been racially harassed. In very many cases the second element will be extremely easy for the employee to establish, but this is does not entitle the Tribunal to assume the second element, nor (as the Tribunal seems to have done here) to decide that the proof of the language created an irrebuttable presumption of detriment. There are some work environments in which (undesirable though it may be) racial abuse is given and taken in good part by members of different ethnic groups. In such cases the mere making of a racist remark could not be regarded as a detriment.

[26]In the present case there was a single remark, clearly not directed to Ms Robinson herself. It was made by a fellow junior employee. It was not the subject of complaint until considerably later. There was evidence of the two protagonists being on very good terms in the aftermath of the incident. There was material on the basis of which a substantial cross-examination could have been mounted to suggest that Ms Robinson was not upset by the remark at the time, but that she had decided to try to use it in a claim (all but this one allegation of which failed) in which she "threw the kitchen sink" at her former employer. Whether such a cross-examination would have made any impact on her claim or whether it was a tactically wise thing to attempt is not the issue for us. The position is that the Tribunal erred in law in failing to consider whether there was detriment and in preventing the Appellants from cross-examining to show that there was not. Conclusion

[27]In the light of these the decision of the Tribunal must be set aside and (if, now that more than two years have passed, the parties cannot resolve their differences amicably by the exercise of some goodwill and commonsense, and so save a considerable amount of time and cost) the issues of whether Miss Thomas and Comsoft was racially discriminated against by the making of the remark alleged against Ms Robinson and, if the remark was made, whether Ms Robinson thereby suffered some detriment will have to be remitted to be determined by a different Tribunal.