MISS B CAMPBELL v (1) MR V ONUEGBU (2) MS L REITH (3) TOTTENHAM LEGAL ADVICE CENTRE [2003] UKEAT 1402_01_1504

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 1402_01_1504Case No Appeal No:.EAT/1402/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS B CAMPBELLAPPELLANT(1) MR V ONUEGBU (2) MS L REITH (3) TOTTENHAM LEGAL ADVICE CENTRERESPONDENT
Before
His Honour Judge J BurkeDate 15 April 2003
[1]APPEARANCES For the Appellant MISS A MORGAN (of Counsel) Instructed by: Ms Zoe Billingham Solicitor 15 Fairthorn Road Charlton London SE7 7RL For the 1st Respondent For the 2nd and 3rd Respondents The Respondent in person No appearance or representation by or on behalf of the Respondents HIS HONOUR JUDGE J BURKE QC The Appeal In this appeal, Miss Campbell, the Second Respondent before the Employment Tribunal, challenges the decision of the Tribunal, sitting at London Central, chaired by Mr Haynes and promulgated with Extended Reasons on 8 September 2001, that she had been guilty of racial discrimination against Mr Onuegbu. At the material time, in 1999 and 2000, Mr Onuegbu was employed as a solicitor by the Tottenham Legal Advice Centre ("TLAC"), who were the Third Respondents before the Tribunal. TLAC was a charitable organisation, providing legal advice in Tottenham and run by a management committee, chaired by Ms Reith, the First Respondent before the Tribunal. Miss Campbell was, until August 2000 when she resigned, the Director of TLAC; she is not a qualified lawyer.[2]Mr Onuegbu made a series of complaints of discrimination and victimisation against all three Respondents; it is not necessary to go through those complaints. He was successful in respect of some of his complaints against Miss Campbell; and TLAC were found to have been vicariously liable for the discrimination found against Miss Campbell. The complaints against Ms Reith failed.[3]By the time of the hearing of this appeal, and indeed well before it, TLAC (the precise constitution of which is unknown to us) had gone into liquidation; we were told that there were no funds available to meet any award to Mr Onuegbu and that, if the findings against Miss Campbell stood, she would have to meet any award, so far as possible, herself. We have before us a letter from TLAC's liquidator, dated 24 October 2002, saying that he would not be attending the hearing or "defending this action" i.e. resisting this appeal. We also had a letter from Ms Reith, dated 20 May 2002 stating that she did not intend to oppose Miss Campbell's appeal and that, on the contrary, she fully supported it.[4]It was no surprise, in the light of these letters, that neither TLAC nor its liquidator, nor Ms Reith or anyone on her behalf, appeared at the hearing before us. Miss Campbell was represented by Ms Adrienne Morgan of Counsel, who had appeared for all the Respondents before the Tribunal; Mr Onuegbu appeared in person. The history[5]The Tribunal heard evidence over eight days; they had over five hundred pages of documents before them. Their decision in this case covers forty-five pages; it sets out the Tribunal's findings of fact and their conclusions as to Mr Onuegbu's complaints in great detail. However, because we are only now concerned with those of his complaints against Miss Campbell which succeeded, we can set out the relevant history, insofar as it is necessary to do so for the purposes of this appeal, with relative brevity.[6]Mr Onuegbu is black and of Nigerian ethnic origin. Miss Campbell is also black, of Afro-Caribbean ethnic origin. In 1999 a vacancy arose for a solicitor to act as supervisor of a Legal Aid Franchise in immigration work for the purpose of obtaining and thereafter working under such a franchise. Miss Campbell believed that such a supervisor would have to have three years' post-qualification experience in immigration work; and the advertisement for the post so specified. She also believed that such experience had to be full-time. The sole original applicant was offered the post in October 1999 but preferred another offer. The post was re-advertised. This time there were two external applicants, one of whom was a barrister; there were doubts about whether he could qualify for the post; the other was a solicitor, Mr Bild, who Miss Campbell believed to be qualified for the post. Mr Onuegbu did not apply. However, before interviews took place, the Local Authority reduced their grant to TLAC by the amount of the salary which went with the post; and an appointment could not be made. Miss Campbell told Mr Bild that, if the funding situation improved, she would write to him again.[7]TLAC nevertheless needed a supervisor for immigration work if they were to maintain their application for a Legal Aid Franchise in that area. Mr Onuegbu who, prior to his qualification as a solicitor in 1998, had worked in immigration, employment and housing, but had since October 1998 worked only in the first two of those three areas, was asked to act as locum supervisor for three months from 1 January 1999 and thereafter on a month-to-month basis; and the Legal Aid Board accepted that his qualifications permitted him to work in that locum position.[8]In early March 2000 the Local Authority restored the funding for the supervisor's post. Mr Bild was asked, by Miss Campbell's letter of 10 March, whether he was still interested in the post; on 20 March, Miss Campbell asked Mr Onuegbu, when he rang her on another matter, if he wished to put himself forward. As a result, both Mr Bild and Mr Onuegbu became candidates. They were interviewed on 20 April by two members of TLAC's management committee and an external solicitor. Mr Bild obtained a higher score and was offered the post. The Tribunal's Decision[9]Mr Onuegbu made a large number of detailed complaints of discrimination against various people involved in that selection process, both as to the interviews themselves and as to what had occurred between 10 March, when Mr Bild was asked whether he was still interested in the post, and 20 April when the interviews themselves took place. Some of these criticisms were directed at Miss Campbell. There were also complaints about matters occurring after the selection process had been completed and matters occurring earlier in the history. Mr Onuegbu asserted that, in respect of each separate aspect of which he was critical, there had been discrimination on racial grounds.[10]The Tribunal correctly directed themselves to determine whether there was less favourable treatment of Mr Onuegbu and a difference in race and, if so, whether they should draw an inference that such less favourable treatment was on the grounds of race. They then approached the issue of less favourable treatment by considering each of Mr Onuegbu's many criticisms or complaints separately and, where they found that there was less favourable treatment, they then considered whether such treatment was on the grounds of race. They sub-divided the complaints as a whole into five separate sections, of which the third was "The Immigration Solicitor Job Application". Under that heading the Tribunal considered no less than seventeen specific criticisms of what had occurred. The last of these was that Mr Onuegbu was not given the job; nine related to the interviews themselves in which Miss Campbell was not involved.[11]The Tribunal found that Miss Campbell had made what the Tribunal regarded as a genuine mistake as to the qualifications needed for the supervisor's job and whether Mr Onuegbu had those qualifications, although that mistake was not appreciated until well after the interviews and the subsequent appointment. In fact Mr Onuegbu was qualified for the job when it first became vacant. In contrast, although neither Miss Campbell nor anyone else at TLAC knew it, Mr Bild was not qualified for the job because he had not at the material time taken one essential course, although it appeared from his application form that he had. He did not take that course until July 2000, after the interview and after he had been offered the job.[12]However, the Tribunal found that Mr Onuegbu was not intending to apply for the post when it was first advertised in 1999; he became a candidate in March 2000 and was not barred from applying because of Miss Campbell's views about his qualifications. Nor did any perceived lack of such qualifications affect the interview process; the Tribunal found, at paragraph 10.4.8.7, that the panel was not aware of a need for the candidates to show any particular level of qualifications or experience and assumed that all such matters had been considered before the two candidates were invited to interview.[13]Two days before the interviews, the management committee decided that although, unlike Mr Bild who was, of course, an external candidate, Mr Onuegbu as an internal candidate had not been asked to complete an application form, that was unfair to Mr Onuegbu because the panel would have, from his application form, information about Mr Bild but would not have such information about Mr Onuegbu. It was resolved that Mr Onuegbu be asked to fill in such a form; but it was also resolved that the application form would not be marked and that the candidates would be marked on the basis of their interviews and their performance in the test which they were both to be required to undergo. The Tribunal found that, on the morning of 19 April, Miss Campbell prepared a note informing Mr Onuegbu of the need to complete an application form and asking him to complete it by the end of the day, but that she put the note on his desk where it became covered by other post, and Mr Onuegbu did not see it until later in the day. However, he did then see it. He did not complete it; but he was permitted to proceed with the interview in any event. There is no suggestion in the Tribunal's decision that the absence of an application form handicapped him.[14]The Tribunal were, in various respects, critical of the panel's approach to the interviews but found that there was no unlawful discrimination in the way in which the interviews were carried out, because there was no differential treatment or because any less favourable treatment was not on racial grounds.[15]However the Tribunal found that:- (1) Although Miss Campbell genuinely believed that Mr Onuegbu did not have sufficient qualifications for the post, she had accepted Mr Bild as qualified without his having given any details of being supervised or having gained recent experience of operating a Legal Aid Franchise. This approach, the Tribunal found at paragraph 10.4.1 of their decision, was:
"considerably different and entirely less favourable to"
Mr Onuegbu. (2) Miss Campbell had treated Mr Onuegbu less favourably than Mr Bild by not writing to Mr Onuegbu on 10 March informing him that recruitment for the supervisor's post was now proceeding, as she did in the case of Mr Bild. It was TLAC's duty so to inform him, the Tribunal concluded; and Miss Campbell failed to do so. This, the Tribunal held at paragraph 10.4.3, was clearly less favourable. (3) Miss Campbell's placing of the note as to the decision that Mr Onuegbu should complete an application form on Mr Onuegbu's desk was "quite inappropriate; she …… should have told him verbally." The Tribunal continued, at paragraph 10.4.7:
"Whilst we appreciate that the relationship between the two of them may have deteriorated as a result of the various events which we have recorded, this did not absolve her, as a manager, from telling him what was an extremely important piece of information. The Applicant offered no specific comparator for this incident. This is a situation where we can look for a hypothetical comparator. There was no evidence that Miss Campbell was so inconsiderate to others. This must be less favourable treatment. "
[16]The Tribunal did not find differential treatment in respect of any of the other criticisms made by Mr Onuegbu of Miss Campbell.[17]After making findings as to the complaints which did not involve Miss Campbell, the Tribunal turned to consider whether, in the instances in which Mr Onuegbu had, on the Tribunal's findings, been less favourably treated, that treatment occurred because of Mr Onuegbu's race and, in the absence of any overt evidence, whether they could draw inferences to that effect from the primary facts which they had found.[18]At paragraph 13 the Tribunal said:
"The individual mainly concerned in our findings of less favourable treatment was Ms Campbell. We note that she is black but is of Afro-Caribbean race. A thread runs through her evidence that she was not prepared to accept that the Applicant was effectively qualified to be a full-time, rather than a locum, supervisor for Legal Aid Franchise purposes. On a close reading of the standards in the Legal Services Commission rules, it is clear that he does qualify. She had formed the opinion that a supervisor must have three years' post-qualification experience and of course the Applicant had not attained that at any time. She say that she checked the position with the Legal Services Commission and her view had been confirmed. As that view is incorrect, it throws doubt upon the effectiveness with which she had done this. Having once made up her mind, she was unwilling to change it and it is noticeable that even after April 2000 the position was being queried with the Legal Services Commission. On the other hand, Mr Bild's qualifications, which we have found to be suspect, were accepted without question or investigation. There is a duality of approach which the Tribunal finds to be of importance. And at paragraph 15 the Tribunal said: 15 We have considered her explanation for these matters. We do not consider them to be adequate. There are too many incidents when her conduct was adverse to the Applicant for us to consider that they were just errors. There must have been some reason which was personal to the Applicant. In the absence of any acceptable explanation as to why this should be, the Tribunal is led inevitably to consider that the reason must be the Applicant's race. We therefore find that Ms Campbell did discriminate against the Applicant in respect of these matters."
The submissions[19]Ms Morgan, on behalf of Miss Campbell, firstly submitted, in relation to all three findings that Miss Campbell had been guilty of discrimination, that the Tribunal had, in paragraph 15 of their Decision, adopted the approach that, once Miss Campbell's explanations for her treatment of Mr Onuegbu were rejected, there was no alternative but to find that the reasons for that treatment was race. This, she submitted, was an error of law; the Tribunal were bound to look at all the findings of fact which they had made and to consider those findings of fact as a whole before reaching a conclusion that an inference that the less favourable treatment was on the grounds of race should be made, consistently with the principles set out in the decision of the Court of Appeal in Chapman -v- Simon [1994] IRLR 273 and Anya -v- University of Oxford [2001] IRLR 377 . She submitted that, had the Tribunal considered the history overall, they would or should have come to the conclusion that any differential treatment was not on racial grounds and that by treating as inevitable a finding to that effect, once Miss Campbell's explanations had been rejected, the Tribunal were misdirecting themselves.[20]While Miss Morgan eschewed any perversity argument, she drew attention to a number of findings which, she submitted, demonstrated that Miss Campbell was not hostile to Mr Onuegbu, despite the number of complaints which he had made against her and the difficulties in their relationship, and that she had sought to help him by checking his qualifications. These findings were to be found in the Tribunal's extended findings of fact but appeared to have been set on one side when the Tribunal came to consider the issue of whether differential treatment was on racial grounds.[21]Alternatively, Ms Morgan submitted, the Tribunal, in the case of all three findings of differential treatment, had reached their conclusions on the basis not of a comparison between an actual or hypothetical comparator in the same or similar circumstances, but on the basis of their view that Miss Campbell's conduct had not been reasonable, contrary to the principles expressed by the House of Lords in Zafar -v- Glasgow City Council [1998] IRLR 36 .[22]As to the finding of discrimination in relation to the failure to advise Mr Onuegbu that TLAC were again recruiting for the post of a supervisor in immigration, Ms Morgan submitted that(1) the Tribunal had found, at paragraph 10.4.3, as was the undisputed evidence, that everyone in TLAC's small organisation knew that the post was available; there could have been no differential treatment;(2) in finding that it was the employer's duty to advise Mr Onuegbu of the vacancy, even though he was aware of it, the Tribunal were proceeding on the basis of what they thought a reasonable employer should have done;(3) if the Tribunal did not make a finding as to whether Mr Onuegbu was unaware or not of the availability of the post, that was a fundamental omission on their part because:(4) if he was so aware, there could have been no differential treatment.[23]As to the Tribunal's conclusions of discrimination in Miss Campbell's failing to inform Mr Onuegbu orally of the need to fill in an application form and simply putting a note on his desk, the Tribunal had erred in:(a) erroneously judging Miss Campbell by standards of reasonableness;(b) while directing themselves to consider the question of differential treatment on the basis of a hypothetical comparator, failing then to make any findings as to what would have happened in the case of a hypothetical comparator.[24]As to the finding of discrimination in relation to the qualifications, Ms Morgan submitted that:(1) the Tribunal found, at paragraph 10.4.1, that Miss Campbell genuinely believed that Mr Onuegbu's qualifications did not satisfy the Legal Aid Authority's criteria, that on the facts found at paragraphs 3(xliv) and (xlvii) Miss Campbell enquired of the authorities and that she had been told that Mr Onuegbu did not satisfy those criteria. Ms Morgan referred to other specific findings as to the history of the checking of Mr Onuegbu's qualifications. She further referred us to the witness statements of Miss Campbell and Miss Reith which demonstrated that both regarded the Authority's letters as confirming their views. It was not correct, she told us, that Miss Campbell did not accept that Mr Onuegbu was qualified until the hearing; what had happened was that, at the hearing, the Chairman had gone through the relevant rules and put his own interpretation on them which was new to Miss Campbell - and also to Ms Reith - but which they then accepted as correct.(2) In relation to this finding too, there had not been an appropriate examination of a comparison between Mr Onuegbu and a person in his circumstances, but of different race.[25]Finally, Ms Morgan submitted that the Tribunal did not find that, in respect of any of the three findings of differential treatment, Mr Onuegbu was thereby subjected to any disadvantage or detriment and that each of the differential treatments were so minimal in nature and effect as to fall within the maxim " de minimus non curat lex". She accepted, however, that all three of the Tribunal's findings against Miss Campbell fell within the section 4(2)(b) of the Race Relations Act 1976.[26]Mr Onuegbu, justifiably and correctly, reminded us that the Tribunal's conclusions as to differential treatment and that such treatment was on racial grounds were findings of fact and that we should not interfere with those findings, in the absence of any error of law, even if we took the view that we would have decided those issues differently. He referred in support to the recent decision of the Court of Appeal in Yeboah -v Crofton [2002] IRLR 636 . He submitted that all the relevant factual findings were, in law, open to the Tribunal to make, that they had set out adequate reasons for their findings and that they had correctly directed themselves to the legal framework within which their findings were made.[27]In response to Ms Morgan's specific arguments, Mr Onuegbu submitted that:(1) In paragraph 15 the Tribunal had not concluded that, once they had rejected Miss Campbell's explanations, they had no alternative but to find that she had acted on racial grounds; that the words "the Tribunal is led inevitably to the conclusion" meant no more than that the Tribunal were convinced of their conclusion.(2) That Miss Campbell had not put forward any alternative reasons for the differential treatment other than race; there was nothing to indicate in paragraph 15 that the Tribunal had not properly considered all the facts before reaching their conclusion.(3) As to the differential treatment in respect of his being informed as to the renewed availability of the supervisor's post, he did not know that the post has become available and the Tribunal had not found that he did have such knowledge; thus the differential treatment was established without recourse to any question of reasonableness.(4) The Tribunal were entitled to treat the differential treatment which they had found as evidence of discrimination on racial grounds.(5) The Tribunal did not refer to or rest their decision on any test of reasonableness.(6) As to the qualification issue, Mr Onuegbu referred to paragraph 10.7.1 of the Tribunal's decision in which they addressed a particular complaint made by Mr Onuegbu as to Mr Bild's qualifications and said that they had treated the matter as part of the background; in the light of the background and the Tribunal's findings in paragraph 13, that Mr Onuegbu was qualified for the post but Mr Bild was not, which findings were not attacked by Ms Morgan, the Tribunal were entitled to conclude as they did.(7) No separate submission was made as to the Tribunal's conclusion in relation to the placing by Miss Campbell of the note on Mr Onuegbu's desk. Conclusions[28]We address first the argument that, by using the word "inevitably" in paragraph 15 of their decision, the Tribunal were indicating a view that, once they had reached the conclusion that there was differential treatment, there was no alternative but to find that the differential treatment was on racial grounds. At paragraph 9 of their decision the Tribunal expressly directed themselves that:
"In the absence of such an explanation, or the absence of such an explanation which we accept, it may well be appropriate (although each case must be considered on its individual facts) for us to draw an inference that the less favourable treatment occurred because of the Applicant's race."
Reading the decision as a whole, including the above excerpt from paragraph 9, we have no doubt that the Tribunal did not discard, in paragraph 13, their own self direction and substitute for it a different direction, namely that the finding of differential treatment led inevitably to a finding that such treatment was on racial grounds.[29]While we do not regard it as appropriate, in considering paragraph 15, to read the word "inevitably" as if "convincingly" were substituted for it, we interpret the Tribunal's words "we are led inevitably" to mean that on the facts, they saw no alternative but to reach the conclusion that they did.[30]However, the Tribunal, in their decision, did not set out why that conclusion was inevitable. In contrast to the great detail in which the Tribunal set out their findings of fact and conclusions on all the many allegations of differential treatment, paragraph 15 is expressed in stark terms. In paragraph 13 the Tribunal set out a general explanation given by the Respondents (without differentiating between them) that they saw nothing wrong in what they had done or that there was a degree of administrative incompetence in their handling of matters. It is clear, though, that Miss Campbell's explanations went further than that; her explanation in relation to the delayed information as to the renewed availability of the supervisor's post was, at least in part, that Mr Onuegbu was aware that the post was again available, as was everyone in the office and that it was Miss Campbell herself who had, as the Tribunal expressly found as fact at paragraph 3(xxiii), invited him to apply for the post. Her explanation on the qualifications issue was, at least in part, that she had made enquiries in the appropriate place and genuinely believed that Mr Onuegbu was not qualified, as indeed, again, the Tribunal expressly found. It does not appear from paragraph 15 that the Tribunal considered these aspects of Miss Campbell's individual explanations; they could not be subsumed into a general explanation based on administrative error or based on a belief that nothing wrong had been done.[31]Nor, in our judgment, did the Tribunal adequately set out why they rejected Miss Campbell's explanations or what findings of fact drove them to the conclusion that the differential treatment was on racial grounds. There were clear possible alternatives to that finding; the Tribunal indicated at paragraph 3(xxx) that the relationship between Mr Onuegbu and Miss Campbell was not good; at paragraph 3.1 they said:
"The Applicant is a man of considerable ability. He is, however, prone to exaggeration. It is also clear from the evidence and particularly from the correspondence, that he readily adopts a bullying attitude when challenged. This appears from …… the various complaints which he made. He appears unable to accept criticism in any form, even when quite mild. When criticised or when affairs do not take the turn which he expects, he is over ready to ascribe this to discrimination."
Before March 2000 he had made complaints against Miss Campbell which the Tribunal decided were unfounded. The findings of fact demonstrate that there had been a poor relationship between them before the post of supervisor became available again. The circumstances of Miss Campbell and Mr Onuegbu working together in a small legal advice centre, in which there were several employees who were black or from other ethnic minorities, and the managing committee was over fifty per cent black or other ethnic minorities, themselves both being black, albeit Mr Onuegbu was of Nigerian origin and Miss Campbell was not, were not such as readily to support an inference of action on racial grounds. The case was not one in which the position was so clear that there was no need for the Tribunal to set out any findings beyond those which they set out in paragraph 15.[32]In Anya -v- University of Oxford [2001] IRLR 377 Sedley LJ, giving the judgment of the Court, said, at paragraph 20:
"In a plain enough case, he submits, where there is no evidence of race discrimination at the actual point of complaint (here, the interview) it is legitimate for the tribunal of fact to decline to travel in detail through the prior history. Accordingly, so long as the industrial tribunal bore everything in mind but found Dr Roberts, as they did, to be an honest witness in his repudiation of any racial bias, they had no obligation to make any further findings."
Lord Justice Sedley continued "21 This may be so in an extreme case - but an extreme case in this context is one which is capable of being dismissed in limine on the ground that the facts relied on, even if proved, do not justify an inference of race discrimination. The present is not such a case, and the experienced solicitor who conducted it for the respondents before the industrial tribunal did not submit that it was. It was closer, in fact, to the opposite end of the scale. The choice between these two comparably well qualified candidates depended entirely on how the panel viewed their personal and professional qualities. Such a judgment is notoriously capable of being influenced, often not consciously by idiosyncratic factors, especially where proper equal opportunity procedures have not been followed. If these are to any significant extent racial factors, it will in general be only from the surrounding circumstances and the previous history, not from the act of discrimination itself, that they will emerge. This court and the Employment Appeal Tribunal have said so repeatedly and have required tribunals to enquire and reason accordingly. 22 If, nevertheless, the industrial tribunal thought that this was the class of case in which they could take the short cut, the least they were obliged to do was to say so……. 25 To assert this is not to demand, as Mr Underhill sought to suggest it did, an infinite combing by the industrial tribunal through endless asserted facts or an over-nice appraisal of them. It is simply that it is the job of the tribunal of first instance not simply to set out the relevant evidential issues, as this industrial tribunal conscientiously and lucidly did, but to follow them through to a reasoned conclusion except to the extent that they became otiose; and if they do become otiose, the tribunal needs to say why." In our judgment, the Tribunal in this case, which by no means could be described as a plain and obvious case, have not only failed to consider in full the explanations put forward by Miss Campbell, but have also failed to consider alternatives to a conclusion that differential treatment was on racial grounds or, if they did consider those alternatives, have not explained sufficiently - or indeed at all - their reasons for rejecting them.[33]We have reminded ourselves, as Mr Onuegbu reminded us, that any view of our own as to the facts must be put wholly on one side and that we must not, in the absence of an error of law, seek to undermine the Tribunal's essential findings of fact. We have, we are confident, not fallen into that error. In our judgment, the Tribunal's approach to and reasoning in respect of the reason for differential treatment was in error and their reasons were not satisfactorily set out. The decision simply does not state, in the presence of other alternatives, why they regarded themselves as driven inevitably to the conclusion which they reached.[34]We turn next to the arguments that the Tribunal had erred in approaching the question of differential treatment by considering what a reasonable manager in Miss Campbell's position would have done rather than by considering whether Miss Campbell had behaved towards Mr Onuegbu in a manner less favourable than the manner in which she would have treated an actual or hypothetical comparator in the same or similar circumstances but of different race. In Zafar -v- Glasgow City Council [1998] IRLR 36 Lord Browne-Wilkinson, with whom the other members of the House of Lords agreed, said this on the issue of less favourable treatment:
"9 As will be apparent from the passage which I have cited from its reasons, the industrial tribunal made the adverse finding of racial discrimination against the local authority wholly on the basis of two inferences: the first, an inference that because the local authority had afforded to the appellant treatment falling far below that of a 'reasonable employer', there was a presumption that they had treated the appellant differently and less favourably than others; second that in the absence of a non-racial explanation for such differential conduct the industrial tribunal had no choice in law but to draw the inference that the reason for such less favourable treatment was racial. The Second Division held the industrial tribunal to have been in error on both these points. I agree….. 11. The reasoning of the industrial tribunal on this issue is wholly defective. The Act of 1976 requires it to be shown that the claimant had been treated by the person against whom the discrimination is alleged less favourably than that person treats or would have treated another. In deciding that issue, the conduct of a hypothetical reasonable employer is irrelevant. The alleged discriminator may or may not be a reasonable employer. If he is not a reasonable employer, he might well have treated another employee in just the same unsatisfactory way as he treated the complainant, in which case he would not have treated the complainant 'less favourably' for the purposes of the Act of 1976. The fact that, for the purposes of the law of unfair dismissal, an employer has acted unreasonably casts no light whatsoever on the question whether he has treated the employee 'less favourably' for the purposes of the Act of 1976"
[35]In relation to the renewed availability of the supervisor's post, the Tribunal was critical of Miss Campbell on the basis, as set out in paragraph 10.4.3 of their Decision, that it was the employer's duty to advise Mr Onuegbu of this development, in effect even if he already was aware of it. Plainly the Tribunal took the view that Miss Campbell's conduct had been in breach of her duty as his manager; but the Tribunal did not ask themselves whether Miss Campbell would have acted differently if Mr Onuegbu had been of a different race. Mr Bild was not a true comparator; he had already made known his interest in the post and was an outsider who could not have known that the post had again become available without being told; Mr Onuegbu was an insider who had not previously applied for the post. The Tribunal neither considered whether the circumstances of Mr Bild were the same or sufficiently close to those of Mr Onuegbu for him to be a comparator nor, if they were not - as seems to us plainly to have been the case - what Miss Campbell would have done in the same situation if Mr Onuegbu had been of a different race. Instead the Tribunal concentrated on Miss Campbell's breach of her duty, as they saw it. That view is repeated and expanded upon in paragraph 14 of the decision.[36]The same approach appears, in our judgment, in the Tribunal's decision on the qualifications issue. The Tribunal did not consider whether Mr Onuegbu and Mr Bild were comparators in the same or similar circumstances; the position of each seems to have been very different, save that they were both seeking to secure the same post. The Tribunal appears to have focused their attention on their criticisms of Miss Campbell, although it is clear from their findings both that she genuinely believed Mr Onuegbu to have been not qualified for the post, a belief which was shared by Ms Reith, and that Miss Campbell did not prevent or deter Mr Onuegbu in any way from applying for the post. The Tribunal's criticisms of Miss Campbell in paragraph 13 of their Decision demonstrate, as we see it, that the Tribunal was considering whether, in their view, Miss Campbell had behaved correctly rather than making the essential comparison between Miss Campbell's treatment of Mr Onuegbu and the treatment that she would have given to somebody in the same or similar circumstances as Mr Onuegbu but of a different race.[37]It is necessary to refer to the Tribunal's view, expressed at the end of paragraph 13, that there was a duality of approach which the Tribunal found to be of importance; but in reality that duality of approach was, in the case of both applicants, on the Tribunal's findings, a failure to make proper investigation of the qualifications of each.[38]As to the placing of the note on Mr Onuegbu's desk, at paragraph 10.4.7, in the absence of an actual comparator, the Tribunal indicated that they had to look for a hypothetical comparator i.e. a hypothetical person in the same position as Mr Onuegbu but of different race. However the Tribunal made no finding as to what would have happened in the case of such a hypothetical comparator. Instead, they said that there was no evidence that Miss Campbell was "so inconsiderate to others". This sentence indicates not only that the Tribunal did not undertake the essential comparator exercise but also that they judged Miss Campbell on the basis of her inconsiderate i.e. unreasonable treatment of Mr Onuegbu. The Tribunal's finding that Miss Campbell had not been so inconsiderate to others was a finding of fact as to her general behaviour; it was not a finding as to how she had behaved in the same or similar circumstances to others; there was no live comparator; and the Tribunal did not say what, in their view, would have been the case if Miss Campbell had been dealing with a hypothetical comparator of a different race.[39]For these reasons, in our judgment, the Tribunal's decision against Miss Campbell was fundamentally flawed and cannot stand.[40]In view of what we have said so far, it is not strictly necessary for us to reach conclusions on Ms Morgan's other arguments; however, lest some of her points become relevant hereafter, we should state our view that:(a) it was not necessary for Mr Onuegbu to prove detriment; Ms Morgan conceded that the findings of discrimination against Miss Campbell all fell within the scope of section 4(2)(b) of the Race Relations Act 1976 ; it was, therefore, not necessary for Mr Onuegbu to rely on his having being subjected to any other detriment under section 4(2)(c). Mr Onuegbu suggested that what had occurred also fell within section 4(1); but, in view of Ms Morgan's concession as to the application of section 4(2)(b), it is not necessary for us to pursue Mr Onuegbu's alternative suggestion.(b) We do not regard it as the function of the Employment Appeal Tribunal, save perhaps in an extreme case, to reverse a decision of an Employment Tribunal that there has been discrimination on the basis that the discrimination was de minimis . Discrimination falling within section 4 of the Race Relations Act is unlawful; and a person who is a victim of discrimination ought to be able to bring a complaint, to have it adjudicated upon by the Employment Tribunal and to obtain any appropriate remedy, albeit that the nature of the discrimination might appear not to be of great substance. We acknowledge that, in particular, the discrimination in relation to the failure to give Mr Onuegbu the note as to the need for an application form in person, rather than placing it on his desk, appears to be of no great seriousness and that, in respect of all three acts of discrimination found by the Tribunal, there may well be great difficulty in proving any substantial injury or loss (we know nothing of what may have happened at any remedies hearing); but the Tribunal did not regard these matters as de minimis ; and it would be an error of law for us to impose any view we may have as to that.[41]Accordingly we do not accept Ms Morgan's arguments as to detriment and as to the application of the de minimis principle.[42]However, for the reasons that we have set out, Miss Campbell's appeal must be allowed. We cannot substitute any decision for that of the Tribunal; there must be a remission to a fresh Tribunal. That remission must be a narrow one; the Tribunal have eliminated by their decision all Mr Onuegbu's complaints save for the three which we have been considering in this appeal. Those three complaints only must be remitted to a fresh Tribunal for reconsideration.[43]For the avoidance of doubt, the remission relates only to the three alleged acts of discrimination referred to in paragraph 10.4 1, 10.4.3 and 10.4.7. There will be no need to re-open the Tribunal's findings of primary fact as set out in paragraph 3 of the decision; the Tribunal on remission will need to consider only whether, in the case of those three alleged acts, there was less favourable treatment of Mr Onuegbu and whether, if there was any such less favourable treatment that less favourable treatment was on racial grounds.[44]However, we would like to draw the attention of the parties to what seems to us to be the plain fact that, in the light of the dismissal of Mr Onuegbu's other complaints of discrimination, and in particular the Tribunal's rejection of Mr Onuegbu's complaint that he had been discriminated against in relation to the selection for the supervisor's post, and the Tribunal's findings that the qualifications issue had not affected the outcome of the interviews and that the application form did not form any part of the marking of the candidates, the parties might like to consider whether the expenditure of time and money on a further hearing could be justified. We strongly recommend the parties to consider whether it would not be better to take steps, perhaps using the services of ACAS, to achieve a consensual or mediated resolution of their differences rather than resorting to further litigation.