MS FOZZIA MALIK v MS GILLIAN MCHAFFIE [2003] UKEAT 0010_02_1812

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0010_02_1812Case No Appeal No. EATS/0010/02Venue 52 MELVILLE STREET, EDINBURGH EH3 7HF
Between
MS FOZZIA MALIKAPPELLANTMS GILLIAN MCHAFFIERESPONDENT
Before
Lord Johnston Miss J A Gaskell Miss A MartinDate 18 December 2003
[1]APPEARANCES For the Appellant Ms R Sorrel, Solicitor Of- Ethnic Minorities Law Centre 31 St Vincent Place GLASGOW G1 2ER For the Respondent Mr M West, Representative Of- Peninsula Business Services Riverside New Bailey Street MANCHESTER M3 5PB LORD JOHNSTON: This case has a long history and this judgment should be looked at in the context of the decision of this Tribunal dated 7 February 2003 and the Note from the Chairman of the Employment Tribunal to this Tribunal dated 3 September 2003. In passing we accept the explanation for the length of time that has elapsed between these two events.[2]The terms of the Note are as follows:- "We refer to the judgement of the Employment Appeal Tribunal in this case dated 29 th January 2003. Before dealing with the matters raised in the decision of the Employment Appeal Tribunal we apologise for the length of time taken to issue this note. One of the members of the Tribunal ceased to be a Tribunal member after the issue of the decision of the Employment Tribunal, but before the 29 th January 2003. The parties were not prepared to agree that the Note be issued by an incomplete Tribunal, and, in these circumstances, it proved necessary to take steps to have the member who had retired re-appointed. As soon as he was re-appointed the Tribunal met to formulate the terms of this Note. We now refer to paragraph 4 of the judgement of the Employment Appeal Tribunal. (In the light of authorities subsequent to the decision of the Employment Appeal Tribunal, we doubt if it is necessary to go through the sequential process set out in that paragraph, but do not think that the issue is of any importance). The legal "wrong" of which we have found the respondent to be guilty was a failure on her part to pay the applicant wages in lieu of notice. We proceeded on the basis (favourable to the applicant) that it was not to be presumed that the respondent withheld pay in lieu of notice from other employees so that it was established before us that the applicant received treatment that was less favourable than that meted out others. The crucial issue, therefore, related to whether the applicant had received that treatment "on racial grounds". We could find nothing in the evidence to suggest that the withholding of wages in lieu of notice was in any way tainted by racial considerations. It may be of some significance to note that, by far, the principal focus of attention at the hearing related to whether or not a specific comparator had received a benefit (training) that had been denied to the applicant. Not only was that case not proven, we were quite satisfied that the position of the applicant was not remotely comparable to that of the alleged comparator. The remaining issues (including the issue of notice), though undoubtedly raised, did not attract the same degree of attention or investigation before us. It was undoubtedly the case that, when the applicant was interviewed before being recruited, there was some discussion about the fact that her employment would be temporary. The respondent was not present at that interview. Although we have found that the applicant was entitled to notice pay, we are also entirely satisfied that all the circumstances surrounding the terms upon which the applicant was employed and the manner in which employment came to an end were hopelessly confused. At least initially no-one could tell us when the applicant commenced employment with the respondent or when it came to an end. There was considerable confusion about whether the applicant had been taken on for a fixed period or indefinitely. In this state of affairs, and particularly bearing in mind that there was at least some suggestion that the applicant had been taken on for a fixed period, and the fact that the respondent was losing money, and the complete absence of any evidence accepted by us that might have suggested hostility on the part of the respondent towards the applicant, we were not prepared to find that the decision (if there ever was a conscious decision) to withhold pay in lieu of notice was tainted by racial consideration. The facts that – it was initially suggested – gave rise to the inference of race discrimination (the fact that the applicant worked on her own more than others or that she did more of the tidying up than others or the fact that on her last day at work the respondent did not wish the applicant well) were either adequately explained, or simply not proven. There was nothing that persuaded us that any of the failures of the respondent could reasonably be put down to an improper consideration. Somewhat similar comments apply in relation to the remaining factors quoted in the judgement of the Employment Appeal Tribunal. It is impossible to say with certainty how it came about that the applicant was paid one week in arrears whilst the remaining members of the workforce were paid on a current week's basis. The issue was not investigated – no doubt because none of the parties knew – at least initially – when the applicant commenced employment. The most likely explanation is that the respondent's organisation was not terribly efficient (a conclusion amply supported by the quality of the records provided by the respondent). We now refer to the failure of the respondent to provide copies of payslips paid to employees other than the applicant, contrary to the terms of the Document Order referred to in our decision. In our view, the circumstances in which the inference of discrimination is most compelling arise in this kind of context where the employer refuses to provide information that he would find embarrassing. In this particular case, there was absolutely nothing to suggest that the payslips would have disclosed anything favourable to the applicant. Indeed, the respondent's evidence that the other trainees were not paid at all by her was not challenged. There was not, in our view, the slightest reason to attach any significance to that failure. We now refer to the failure to answer fully the questionnaire. We have to say that we found ourselves in some difficulty in connection with this allegation. As noted in the decision, the applicant does not identify which failure or failures upon which she founds, nor does she disclose the reasoning whereby the inference is to be drawn. In these circumstances, we do not think that we can add anything to the content of the decision other than, perhaps, to say that there was nothing before us to suggest that the respondent was attempting to conceal evidence that might prove embarrassing from her point of view. We did consider whether we could and should draw an inference of unlawful discrimination from the cumulative effect of all of the failures on the part of the respondent, because we recognised that, even if there were no overt signs of racism, a stage could be reached at which it was improbable that there could be so many failures in relation to a specific individual, such as the applicant, without there being a sinister explanation, but even viewed cumulatively, we could discern nothing to give the treatment of the applicant a racial flavour.[3]Ms Sorrel, once again appearing for the appellant employee, submitted that the Note effectively had made no difference to her position. She submitted written submissions which are in the following terms:- "This Appeal was originally heard by the EAT in Edinburgh on 29 January 2003. At that appeal the Appellant submitted that the Employment Tribunal had erred in law in failing to follow the process in accordance with the case authorities of KING and ANYA (see pp.81 and 86 of the bundle), where findings of primary fact are made that a difference in treatment has been accorded to the Appellant to that of other staff members. In summary, the Appellant submitted that the Tribunal had deduced its own explanations as to the reasons for the difference in treatment that the Respondent accorded to the Appellant to which no inference of race discrimination was subsequently drawn. It was therefore submitted that in the absence of an explanation from the Respondent it was for the Tribunal to make an inference (or not) of race discrimination on the basis of that absence and not for it to deduce an explanation itself. (See Notice of Appeal p.22 of bundle). It its Judgement (dated 29 January 2003 –see p.69 of the bundle) the EAT upheld the appeal to the extent that at Paras. 5 & 6 p.75:
" …Mr. West, appearing for the respondent, accepted to some extent, we consider by its language the Tribunal may have elided those tests by looking for explanations where at least on one view they were really determining there was no justification to draw any inference of racial discrimination at all which would result in the issue of explanation not arising. We are unable to reach a clear conclusion on this question. We are therefore concerned to ascertain the precise basis on which the Tribunal have determined this matter against this background and we have therefore decided to remit the matter back to the same Tribunal for determination whether in writing by the Chairman or at a further hearing of the precise reasons which caused them to conclude that it was not legitimate to draw inference of racial discrimination, in relation to these peripheral issues."
In response to the EAT judgement, the Employment Tribunal provided a note dated 3 rd September 03. (See p.78 of the bundle). As stated in the original Employment Tribunal Decision at page 20 line 1 (see p.20 of the bundle), the Tribunal summarised their findings of fact in which the Applicant received less favourable treatment and therefore may give rise to an inference of race discrimination. These were:- 1. The fact that the Respondent failed to give the Applicant notice, or payment in lieu. 2. The fact that the Applicant, unlike the remainder of the staff was required to work one week's lying time. 3. The procedural failures already mentioned, and the fact that the Respondent did not deal completely with the Section 65 Questionnaire. 4. The fact that the Respondent asked the Applicant if she was acquainted with another Asian lady. These matters will be dealt with in chronological order and in accordance with the Employment Tribunal Note:- 1. At page 79 of the bundle, lines 1-25, the Tribunal addresses this particular finding of fact and the grounds on which it was decided that an inference of race discrimination could not be drawn:- (Line 1) "We could find nothing in the evidence to suggest that the withholding of wages in lieu of notice was in any way tainted by racial considerations." (Line 20) "In this state of affairs, and particularly bearing in mind that there was at least some suggestion that the applicant had been taken on for a fixed period, and the fact that the respondent was losing money, and the complete absence of any evidence accepted by us that might have suggested hostility on the part of the respondent towards the applicant, we were not prepared to find that the decision (if there ever was a conscious decision) to withhold pay in lieu of notice was tainted by racial consideration." We would submit that this Note does not set out the respondent's explanation (if any) for this difference in treatment. The Tribunal has formed an explanation on the part of the Respondent which, is not in accordance with the case authorities of ANYA and KING . Further, KING states that if no explanation is put forward by the respondent it will be legitimate for the Tribunal to infer that the discrimination was on racial grounds. 2. At Page 79 of the bundle, lines 37-44, the Tribunal addresses this particular finding of fact and the grounds on which it was decided that an inference of race discrimination could be drawn:- (Line 37) "It is impossible to say with certainty how it came about that the applicant was paid one week in arrears whilst the remaining members of the workforce were paid on a current week's basis… (Line 41) The most likely explanation is that the respondent's organisation was not terribly efficient." We would submit that this Note does not set out the respondent's explanation (if any) for this difference in treatment. The Tribunal has formed an explanation on the part of the Respondent which, is not in accordance with the case authorities of ANYA and KING . Further KING states that if no explanation is put forward by the respondent it will be legitimate for the Tribunal to infer that the discrimination was on racial grounds. 3. At Page 79 of the bundle, lines 46-51 and Page 80, lines 1-12 the Tribunal addresses these particular findings of fact and the grounds on which it was decided that an inference of race discrimination could not be drawn:- We would submit that this does not set out the respondent's explanation (if any) for this difference in treatment. The Tribunal has formed an explanation on the part of the Respondent which, is not in accordance with the case authorities of ANYA and KING . Further, KING states that if no explanation is put forward by the respondent it will be legitimate for the Tribunal to infer that the discrimination was on racial grounds. 4. The fact that the Respondent asked the Applicant if she was acquainted with another Asian lady. The Tribunal Note does not address the finding of fact at all and we would therefore submit that the Respondent's explanation (if any) has not been properly considered and therefore the process of determination has not been in accordance of ANYA and KING . Further, KING states that if no explanation is put forward by the respondent it will be legitimate for the Tribunal to infer that the discrimination was on racial grounds. Further, the concluding comments made by the Tribunal in their original decision at page 20 of the bundle Line 43:- "As noted, the respondent employs another lady of Asian origin. It would have been a simple matter for the respondent simply to refuse to employ the applicant, has she been so inclined. We would submit that these comments have not been addressed in the Note, yet they clearly formed a basis for the original decision by the Tribunal and further that this comment was not an explanation put forward by the respondent but one deduced by the Tribunal in any event. In conclusion, we would therefore submit that the correct procedure to apply, as set out in Para.4 of the EAT judgment (see p.75 of the bundle) and in accordance with ANYA and KING , in order to drawn an inference of racial discrimination (or not) on the primary facts has still not been followed in this matter and that this appeal should therefore be upheld."[4]Mr West, appearing again for the respondent, submitted that the approach of the appellant was misconceived. In any given situation where a basic finding of fact had been made which disclosed treatment that might be described as unfavourable the result only was that it was legitimate to draw an inference of racial discrimination if no explanation was offered, and not inevitable. However, where as here, the Tribunal had looked at the matter across the board and had determined that there was no racial element in this case, it was illegitimate to draw an inference in that context.[5]With this last proposition we are in entire agreement. It was the role of the Tribunal to determine at an appropriate stage of the process whether there was any racial element in any of the subsidiary matters that have now been considered. They give reasons in each case for finding none. That is a legitimate approach. The approach of the appellant here misunderstands the consequence of the proposed steps to which the authorities make reference. They are not conclusive but merely a guide.[6]In these circumstances we affirm that there is no racial element in this case and this appeal will be dismissed for the reasons given by the Tribunal in their Note.