LOOK AHEAD HOUSING & CARE LIMITED v MRS BOLA AKINDE [2008] UKEAT 0130_07_3101

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0130_07_3101Case No Appeal No. UKEAT/0130/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
LOOK AHEAD HOUSING & CARE LIMITEDAPPELLANTMRS BOLA AKINDERESPONDENT
Before
His Honour Judge ReidDate 31 January 2008
[1]APPEARANCES For the Appellant MISS ELAINE BANTON (of Counsel) Instructed by: Messrs Levenes Solicitors Ashley House 235-239 High Road Wood Green London N22 8HF For the Respondent MR SATVINDER SINGH JUSS (of Counsel) Instructed by: Messrs Fadiga & Co Solicitors 2 The Boulevard Balham High Road London SW17 5BW SUMMARY Practice and Procedure: Perversity Race discrimination: Inferring discrimination / Comparison The Respondent was dismissed from her post as a night hostel worker after abusing a resident. She claimed, inter alia , race discrimination. The Tribunal upheld the claim. Held: the decision was not Meek compliant and was perverse. HIS HONOUR JUDGE REID QC This is an appeal from a decision of an Employment Tribunal held at Stratford on 31 January and 13 April 2006, followed by consideration in chambers on 25 May 2006. The judgment was eventually dated 18 December 2006 and was entered on the register on 8 January 2007. There is no explanation as to why the judgment took so long to prepare and deliver. By the judgment the Tribunal held that the Appellant, Look Ahead Housing and Care Limited ("Look Ahead") had been guilty of what it described as a "serious act" of race discrimination, and found that the Claimant, Mrs Akinde, should be awarded £10,000 by way of remedy.[2]Mrs Akinde, the Claimant, had presented two complaints to the Tribunal. The first, dated 10 January 2005, was a claim for unfair dismissal. The second claim, apparently received by the Tribunal on 1 February 2005, alleged race and sex discrimination. Claims relating to unpaid wages and holiday pay were also raised but the Tribunal was informed that those had been settled between the parties before the hearing. The claim for unfair dismissal was discontinued by a letter dated 6 April 2005. The issues before the Tribunal were therefore as to race and sex discrimination. Basic Facts[3]The Claimant had worked as a night hostel worker with Look Ahead since September 1988. The Claimant's role was to provide night cover at its 158 bed Aldgate hostel. Look Ahead is a Special Housing Association operating in southeast England. It provides support and care for different client groups, in particular, homeless people, many being young persons with drug problems and other substantial difficulties. It has many residential facilities and has more than 500 employees.[4]At 31 August 2003 the Claimant had two warnings on her file: a final warning relating to her use of the clients' laundry facilities for her own purposes, which was to remain on her file for 2 years from May 2003, and a first written warning to remain on her file for a year from September 2003 following an incident when she had been found asleep on duty.[5]On 31 August 2004 the Claimant was on duty at the hostel with Freddy, a fellow employee, and the team leader, Patrick Onwuka, an agency worker. All three were of black African (Nigerian) origin. During breakfast, there was an incident. There were two agency staff serving in the canteen and the Claimant was on duty with Freddy.[6]At about 7:30 a.m. Freddie left the canteen to do a wake-up call for a resident. This had been arranged by the daily staff and Freddy had been told he should do it by the team leader. The Claimant was left as the only support worker with the two canteen agency workers in the dining area with the residents. She was of the same grade as Freddy and had no authority to countermand the instructions or to require him to stay in the canteen with her. She was equipped with a walkie-talkie and was aware that she should not be left alone in the canteen without a fellow worker. However, she made no attempt to call the team leader or anyone else to ask for a replacement to cover for Freddy, although cover was available.[7]During Freddy's absence there was an incident in which a resident, Resident D, became abusive because his tray was wet. When the Claimant intervened she was racially abused and threatened by Resident D. During the altercation she made an abusive remark about the resident's mother. Following the incident the Claimant was distressed. She went to the manager's office and was sent home. She should have filled in an incident sheet for the hostel's incident book. She was told she could do this when she next came in. Neither then nor subsequently did she record the incident.[8]The resident complained and a disciplinary investigation took place. Between 1 September and 9 September the deputy manager Mr Phillippo, assisted by Ms Chiazza from Look Ahead's HR Department, took statements from the agency workers in the canteen, which he wrote out and they signed. He also took a statement from another resident who was present, and on 9 September he saw Resident D who prepared his own statement. He then interviewed the Claimant on 14 September.[9]The management took the view that the appropriate course was to deal with the disciplinary action against the Claimant first and then deal with the complaint that the resident had racially abused the Claimant. Following the taking of statements a disciplinary hearing took place at which the Claimant was represented by a union representative. The charge was that she did not act in accordance with the expected standards of professional behaviour detailed in Look Ahead's code of conduct. At the hearing the Claimant denied she had used the language complained of and her representative raised the issue that she had been left alone in the canteen contrary to Look Ahead's Personal Safety at Work policy.[10]In its decision the panel commented on this latter point "You allowed another member of staff to leave the canteen but you did not radio for a replacement member of staff". As to the allegation of misconduct the panel upheld the allegation of misconduct and taking into account the final written warning imposed the sanction of dismissal with payment in lieu of notice. It also expressed concern that no action was being taken pending the outcome of the disciplinary process, but did not attempt to prejudge what that action should be.[11]The Claimant appealed. In her appeal she raised issues as to:(1) the circumstances in which she was left as the only member of staff in the dining area;(2) whether she had in fact been verbally abusive to the resident; and(3) the management's conduct towards her. Her appeal was dismissed.[12]The resident was given a six months final written warning some six weeks after the incident but left the hostel for other reasons. The Claimant began her two sets of proceedings. Issues for the Tribunal[13]The "Details of Claim" annexed to the Claimant's IT1 in the present case were conspicuously lacking in clarity. It appears she used identical details in her unfair dismissal claim. There was a case management discussion on 10 June 2005 as a result of which the Tribunal defined the issues as follows:
"5.1. the Claimant's racial and ethnic origin, 5.2. whether the Respondent treated the Claimant less favourably on grounds of her gender by not taking any disciplinary action against her colleagues Freddy and Patrick in respect of the fact that she was left alone in the canteen whereas that fact featured heavily in the Claimant's disciplinary procedures and in the decision to dismiss her, and 5.3. whether the Respondent treated the Claimant less favourably on the grounds of her race by taking no action against Resident D when compared against a white comparator the Respondent would either, under the same circumstances, have taken appropriate action against Resident D or if the Respondent did not take any action against Resident D then the Respondent would not have taken action against the staff member concerned."
[14]The first of the issues was not a matter of debate. It was common ground that the Claimant was of black African (Nigerian) origin, as were Freddy and Patrick. The second issue was disposed of by the Tribunal in favour of Look Ahead. It held that Patrick (who was not an employee but an agency worker) was not an appropriate comparator. It held that Freddy was an appropriate comparator but that the claim of sex discrimination failed. There is no appeal against that decision. This appeal turns on the third issue. This third issue had been refined after the Claimant abandoned her initial claim which was based on Resident D as a comparator. The Tribunal's approach[15]The Tribunal said it was accepting the guidance set out in Igen v Wong [2005] EWCA Civ 142 . It said it approached its task in this way:
"(i) The determination of cases such as this requires a staged process. We first have to make findings of primary fact and to determine whether those show less favourable treatment and a difference in race and gender, in respect of both claims, ? The test is: are we satisfied, on the balance of probabilities and with the burden of proof resting on the Claimant, that this Respondent treated this black woman less favourably than he treated or would have treated someone in the same situation that was white and male. (ii) If we are so satisfied, we proceed to the second stage and consider whether we could draw an inference that the less favourable treatment was on the grounds of race and/or the fact that she is female. It requires some investigation of the Respondent's thought processes: what is the "reason why" the treatment occurred? There may be findings of fact relevant to the issues discussed above which influence us here, or other findings of fact ? (iii) At this stage we direct ourselves in accordance with section 63A of the SDA and 54A of the RRA. If we could draw an inference of race and sex discrimination, we look to the Respondent to see whether it provides a credible, non-discriminatory explanation or reason for the difference in treatment. In the absence of such an explanation, or rather in the absence of anything which we accept as proven on the balance of probabilities, we will infer or presume that the less favourable treatment occurred because of the Claimant's race and gender, as claimed."
The findings on Race Discrimination[16]The only issue in relation to race discrimination was the narrowly defined issue set out as issue 5.3 above. This was the only claim based on race discrimination with which Look Ahead had to deal.[17]The Tribunal's findings of fact which it felt "could lead to inferences of less favourable treatment [on the grounds of race]" were in part dealt with at paragraphs 72 and 76 of the judgment but were finally set out at paragraph 82. Paragraph 82 is in these terms:
"82. The Tribunal found facts which could lead to inferences of less favourable treatment. These are as follows: the fact that the Respondent seized upon the apparent breach of the Personal Safety at Work Code and used it against the Claimant in her disciplinary hearing, in the dismissal letter and at the appeal, the fact that the Respondent failed to take any action against Resident D until some time had passed and not until after the disciplinary hearing and then did not find it necessary to inform the Claimant that action had been taken until much later and possibly not until these proceedings were underway."
[18]The Tribunal said that it then "look[ed] to the Respondent for a non-discriminatory reason for this treatment of the Claimant". In so far as it did so it appears to have done so at paragraphs 84 and 85 of the judgment. At paragraphs 86 the Tribunal discounted the Claimant's proposed actual comparators (none of whom had spoken inappropriately to a resident) and at paragraph 87 the Tribunal determined that it had to look at a hypothetical comparator, "a white worker with an existing final warning on their file who was accused of speaking inappropriately to a resident who have behaved in a threatening manner towards him/her".[19]The Tribunal then went on to make its findings of race discrimination in these terms:
"87. ?We find that in a case where a white worker is threatened by a resident and reacts by making an inappropriate remark both aspects of that incident would have been treated seriously and dealt with at the same time and treated equally as seriously by the Respondent. This would have been the case even it the white worker had an existing final written warning on their file for [an] unrelated matter which did not involve inappropriate behaviour to residents. The Respondent would also have considered the threatening behaviour towards the worker as a serious matter and would have given due consideration to whether it amounted to provocation in eliciting the inappropriate outburst from the worker, if it was out of character. It is also our judgment that the issue of the breach of the Personal Safety at Work Policy would not then have become the main issue in the disciplinary hearing and certainly not at the appeal hearing. 88. If there had been no prolonged discussion of the breach of the Personal Safety at Work Policy at the hearings and instead the issue of provocation had been properly considered, the Respondent would then have found itself with a worker who displayed misconduct towards a resident which she had never done before and who had a final written warning on her record from an unrelated type of incident ie breach of their laundry facilities. This is a worker who has been employed since 1988 without ever having behaved towards a resident in that way prior to this incident. In our judgement, such a comparator would not have been dismissed. It is probable that in the case of the hypothetical comparator the Respondent would have applied some other sanction short of dismissal. 89. We therefore find that the Claimant suffered a detriment because the Respondent failed to consider the racial abuse she suffered seriously enough, failed to deal appropriately with Resident D or to inform her when they did and instead, took into account irrelevant uninvestigated considerations at the internal hearings which resulted in her being dismissed. The Claim of discrimination contrary to Section 1 of the Race Re1ations Act 1976 is well founded."
[20]The Tribunal made further findings when it came to the question of remedy. They determined that the award should be "within the middle band of Vento " and awarded £10,000. In coming to that conclusion they observed that the Claimant has worked in this environment with vulnerable residents for a long period of time and the Tribunal finds that it is likely that she has faced provocative and difficult situations before, none of which has resulted in her behaving in this way. They stated there was no evidence that this formed part of the Respondent's consideration when deciding how to deal with this incident at para 103:
"103. ?The Claimant did behave inappropriately towards him in her response to him and she always admitted this. However, this remark was made in a particular context and there is no evidence that the Respondent took that context into account in deciding what sanctions to impose on her. 104. In our findings we also stated that the Respondent placed significant emphasis on the alleged breach of the Personal Safety at Work Policy even though the investigation had not focused on or dealt with that in any way and no-one else had been questioned about this alleged breach and it had not been properly considered as an item of misconduct for which she should be disciplined. However, this is taken by the Respondent once inadvisably mentioned by the Claimant's representative and used in effect, as the reason to dismiss her. This is clearly less favourable treatment and resulted in the Claimant losing a job to which she was obviously committed and had been prepared to work at for a considerable period of time."
Look Ahead's case[21]Look Ahead attacked the decision of the Employment Tribunal on two fronts. First it submitted that the Tribunal failed to explain or give adequate reasons for its finding that the Claimant had established sufficient facts, from which in the absence of an adequate explanation, the Employment Tribunal might draw an inference that the acts of which she complained as amounting to less favourable treatment were by reason of her race. Second it attacked the Tribunal's failure to consider Look Ahead's "non-discriminatory explanations". It submitted that the result was a decision which was perverse or wrong in law.[22]As to the first line of attack, Look Ahead submitted the Tribunal failed to give adequate consideration to the facts that showed that the Respondent had a non-discriminatory reason for acting as it had, namely that she had committed an act of misconduct in breach of the Respondent's Professional Conduct Code and had a final written warning on her record. The Employment Tribunal accepted that Look Ahead's employees had a duty to maintain professional standards of behaviour in their dealings with especially vulnerable residents and that the Claimant's retort to Resident D was not in accordance with such standards and that she had been disciplined for breach of the Respondent's Professional Conduct Code.[23]As to the second line of attack, it was submitted that if less favourable treatment was properly found by the Tribunal, it erred by failing to consider the non-discriminatory explanation for the Claimant's treatment. The two matters the Tribunal found at paragraph 82 could lead to inferences of less favourable treatment were:(a) "The fact that Respondent seized upon the Claimant's apparent breach of the Personal Safety at Work Code and used it against the Claimant"; and(b) "The fact that the Respondent failed to take any action against Resident D until some time had passed and not until after the disciplinary hearing and then [delayed in informing the Claimant]."[24]As to (a) the Tribunal had witness statements from and heard evidence from Mr Walker and Mr Phillippo but failed to consider the Respondent's non-discriminatory explanation. The personal safety at work policy was not the main subject of discussion. The issue was raised by the Claimant who alleged that Look Ahead had breached this policy as the Claimant was on duty on her own at the time of the incident. Look Ahead properly responded to the Claimant's case and pointed out that the policy required an employee to radio for additional cover in circumstances where an employee was alone on duty and the Claimant did not do this. The criticism of the Respondent for mentioning the policy issue at the appeal was misguided and perverse. As the Tribunal acknowledged the Claimant appealed on the policy issue. Therefore such findings should not have led a properly directed ET to draw an inference of less favourable treatment on grounds of race.[25]Look Ahead's evidence was as stated in the dismissal letter that the dismissal was based on the allegation of misconduct. The Tribunal failed to acknowledge the clear evidence borne out by its dismissal letter that the reason for dismissal was the breach of Professional Conduct and also that taking into account the final written warning; the sanction was dismissal with payment in lieu of notice.[26]As to (b) the Tribunal accepted that the Look Ahead's duties to its employees and residents are different and appeared to accept the Respondent's explanations regarding the delay that action was not taken against the Resident D until the disciplinary was concluded against the Claimant. Look Ahead also stated that it expected a higher standard of behaviour from its staff than residents. The finding that Look Ahead failed to treat the Resident D's actions seriously was contrary to the finding recorded by the ET that Resident D was in fact given a final written warning and told that any repeat behaviour would lead to his eviction.[27]The Tribunal failed to explain why it determined that a white employee who had a final written warning on their record would not have been treated in the same way. In any event the Claimant had two written warnings on her record at the time (one final and one first written warning), so the hypothetical comparator was wrong. Had the Tribunal considered the evidence appropriately the Respondent would have been found to have discharged the burden and a finding of race discrimination would not have been made. The decision was in terms which made it impossible to understand why it was that the Tribunal had reached the conclusion which it did and the decision was therefore either perverse or at the least not compliant with the requirements of Meek v Birmingham City Council [1987] IRLR 250 . The Claimant's case[28]The Claimant submitted:(i) An appeal tribunal can only intervene to upset a finding of fact by a tribunal of first instance on the ground of perversity. It can only do so if the decision reached was not a "permissible option". In this case, the finding by the ET was not "unsupported by any evidence" and its conclusions reached were "a permissible option".(ii) The Tribunal adopted the two-stage process. From the facts found the ET concluded that it "found facts which could lead to inferences of less favourable treatment", and identified the facts in paragraph 82. The ET did as a fact-finding tribunal give adequate reasons for its findings that the Claimant had established sufficient facts, from which, in the absence of an adequate explanation, the Employment Tribunal might draw an inference that the acts of which she complained amounted to less favourable treatment by reason of her race.(iii) It then "looked to the Respondent for a non-discriminatory reason for this treatment." It noted that "The Respondent's case is that the Claimant was disciplined and eventually dismissed because of a breach of the Respondent's professional conduct code", found that "the workers at the Respondent would have a duty to maintain professional standards ..." but concluded that, "The claimant was disciplined for breach of the professional conduct code. However, her dismissal was for something different". It then gave specific reasons for this view:
"[Look Ahead] interpreted the personal safety at work policy to her detriment. The apparent breach of the Personal Safety at Work Code features and becomes the main subject of discussion in her disciplinary hearing and appears even more prominently in the appeal hearing and was therefore in the mind of the dismisser when the decision to dismiss rather than apply any other sanction short of dismissal. The Respondent then put that incident together with the final written warning which she had received sometime before over her misuse of the laundry facilities, it was decided that they had no choice but to dismiss her. This is not therefore a dismissal based on the breach of the professional conduct code."
It is not the case that the Tribunal "failed to give adequate consideration to the facts that showed the Respondent had a non-discriminatory reason" because the Tribunal was there demonstrating that it did give the point proper consideration. (iv) This decision was a "permissible option" on the facts as found by the Tribunal. The clearest basis for this is to be found after the Employment Tribunal in considering the Claimant's sex discrimination claim gave detailed consideration to whether there was "a non-discriminatory reason for the difference in treatment between the Claimant and Freddy" and concluded that, "? the Claimant was in actuality, disciplined for the alleged breach of the Personal Safety at Work Code. In comparison, no one is questioned about it", and noted that, "The Claimant is not alone in her breach of the Code ..." yet, "None of the employees concerned had been dismissed as a result". (v) Nor was it the case that the Tribunal failed to give sufficient prominence to the fact that the Claimant had had committed an act of misconduct in breach of the Respondent's Professional Conduct Code and had a final writing warning on her record. But employers cannot construct a reason for a dismissal. In this case, the Tribunal found that the non-discriminatory reasons for dismissal were not sustainable on the evidence. It had earlier observed at paragraph 53 that:
"?The Respondent's decision to leave the matter of dealing with the Resident D to one side while they proceed with the disciplinary action against the Claimant could have led the claimant to conclude that they doubted her and other witnesses' evidence and/or that they had not taken the issue of racial abuse seriously. It is apparent that at the time the Respondent considered the Claimant's retort to the resident to be more serious than the racial abuse and threats of violence towards her." (vi) It did not follow that just because the Claimant had a "final warning" against her that she would have automatically been dismissed as a result of this incident. The ET dealt with this issue very carefully before concluding that the Claimant had clearly suffered a detriment as a result of her employer's actions. (vii) The ET had the benefit of hearing the evidence. It concluded that if a white hypothetical comparator were threatened by a resident and reacted by making an inappropriate remark, both aspects of that incident would have been treated seriously and dealt with at the same time and treated equally as seriously by the Respondent. It observed that: "
If there had been no prolonged discussion of the breach of the Personal Safety at Work Policy at the hearings and instead the issue of provocation had been properly considered, the Respondent would have found itself with a worker who displayed misconduct towards a resident which she had never done before and who had a final written warning on her record from an unrelated type of incident; ie breach of their laundry facilities." And that:
"the Claimant suffered a detriment because the Respondent failed to consider the racial abuse she suffered seriously enough, failed to deal appropriately with Resident D or to inform her when they did and instead took into account irrelevant uninvestigated consideration at the internal hearing which resulted in her being dismissed."
Since the EAT cannot substitute its own view for that of the Employment Tribunal the EAT cannot intervene if the Tribunal's decision is within the range of 'permissible options'. In this case, it was. Discussion[29]There was no real dispute as to the law involved. "It is the job of the industrial tribunal to find the facts, apply the relevant law, and to reach the conclusion to which its findings and the experience of its members lead. When an industrial tribunal has done just that, it will not be often that it can be said legitimately that its conclusion offends reason or was one to which no reasonable tribunal could have come. If the industrial tribunal did not err in law, its decision should not be disturbed by an appellate court unless it can be said in effect:
'My goodness, that was certainly wrong. ' " The County Council of Hereford & Worcester v Neale [1980] IRLR 168 per May LJ at para. 45, (CA): "The danger in that approach is that an appellate court can very easily persuade itself that, as it certainly would not have reached the same conclusion, the Tribunal that did so was 'certainly wrong'
. The more dogmatic the temperament of the judges, the more likely they are to take that view. That is a classic non sequitur?. What matters is whether the decision under appeal is a permissible option. To answer that question in the negative in the context of employment law, the EAT will almost always have to be able to identify a finding of fact which was unsupported by any evidence or a clear self-misdirection in law by the tribunal. If it cannot do this, it should re-examine with the greatest care its preliminary conclusion that the decision under appeal was not a permissible option and has to be characterised as 'perverse' ". Piggott Bros & Co Ltd v. Jackson [1991] IRLR 309 per Lord Donaldson MR at para. 17, (CA). An appeal on the ground of perversity should only be allowed where an overwhelming case has been made out that the Tribunal has reached a conclusion which no reasonable tribunal could have reached: Yeboah v Crofton [2002] EWCA Civ 794 . "It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises; and it is highly desirable that the decision of an Industrial Tribunal should give guidance both to employers and trade unions as to practices which should or should not be adopted." Meek v City of Birmingham Council [1987] IRLR 250 per Bingham LJ at para. 8 (CA).[31]The current provisions in the discrimination legislation require a tribunal to go through a two stage process. The first stage requires the claimant to prove facts from which the tribunal could conclude in the absence of adequate explanation that the respondent has committed or is to be treated as having committed the unlawful act of discrimination against the claimant. If the claimant is successful at that stage the second stage comes into play. The second stage requires that unless the respondent proves he did not commit or is not to be taken as having committed the unlawful act if the complaint is not to be upheld: see Igen v Wong [2005] EWCA Civ 142 . Madrassy v Nomura International Plc [2007] EWCA Civ 33 (which clarifies the law as set out in Igen ) made it clear(1) the burden of proof does not shift to the employer simply because the claimant establishes a difference in status (eg sex) and a difference in treatment and(2) there must be more sufficient material (taking into account both the claimant's and the respondent's evidence) from which a reasonable tribunal could properly conclude that on the balance of probabilities the respondent had committed an unlawful act of discrimination.[32]The Tribunal dealt with the case by the two stage process envisaged by Igen . It did not, of course, have the benefit of the later Court of Appeal decision in Madrassy . In dealing with the first stage it identified two matters(1) "the fact that the Respondent seized upon an apparent breach of the Personal Safety at Work Code...." and(2) "the Respondent failed to take any action against Respondent D until some time had passed" and then delayed in telling her the result of that action.[33]In making its decision the Tribunal appears to have considered the case on the basis that "the Claimant did behave inappropriately towards [Resident D] in her response to him and she always admitted this." (see paragraph 103 of the decision). Judged by the high standard imposed by Crofton , this was perverse. According to the documents she denied any inappropriate conduct up to and at the appeal hearing. The Claimant denied that she used the language complained of.

(i) the minute of the investigation meeting with the Claimant:

"I never called his mother a cunt"... "
I think I acted professionally": (ii) the report of the investigation:
"[the Claimant] completely denies calling [Resident D's] mother 'a cunt' and feels she 'acted professionally' at all times"; (iii) the minutes of the disciplinary hearing "
Q. From the report [resident D] was abusive and swearing, but you didn't swear? A. No, I didn't swear" and (iv) the minutes of the appeal hearing "[The Claimant] stated she did not say what she was accused of - she would have admitted it if that was the case. [The Claimant] continued that she said to the service user that he had to respect her the way he respects his mum." And "[The Claimant's representative] summed up the case in that they maintain that [the Claimant] did not swear at a service user." No suggestion was made to the EAT that the documents were incorrect or that there was oral evidence from the Claimant to support the finding, nor is there anything in the Tribunal's decision which indicates why (if such were the case) it did not accept the accuracy of the documentary evidence.[34]When it dealt with the race discrimination claim the Tribunal at paragraph 80 of its judgment made the finding that "[Look Ahead] did not take the issues of the racial abuse and physical threats ? seriously." This was the first head of the detriment which the Tribunal, at paragraph 89 of the judgment, found the Claimant suffered.[35]The evidence in support of that finding was said to be(1) that Look Ahead failed to take action against [Resident D] at the same time as the decision was made to discipline the Claimant,(2) that the investigation only began when he complained even though her manager had been aware of the incident on the following morning as she had been visibly shaken at the handover,(3) that Resident D was interviewed as part of the investigation on the morning following the incident whereas she was not interviewed until the 9 September,(4) when they did decide to give him a warning they did not inform her of this until much later, and(5) they failed to consider whether the racial abuse provoked the Claimant into behaviour which was unprofessional but out of character and to determine the sanction accordingly.[36]Of these five findings (1) and (4) formed the second of the three facts from which the Tribunal at paragraph 82 of its judgment found it possible to infer less favourable treatment.[37]We had difficulties with the five findings. Look Ahead did not take action against Resident D until after the disciplinary hearing but evidence was given to the effect that the manager intended to speak to the resident on the Monday following the hearing. He had intended to have the disciplinary process finished before dealing with the resident. The disciplinary panel took the view that he should already have dealt with the resident and he then promptly did so, giving a final warning. We can see nothing in this set of facts from which it could properly be suggested that Look Ahead did not take the resident's behaviour seriously, nor is there any suggestion in the decision that the Tribunal did not accept that evidence.[38]The second finding based on the fact that the investigation did not begin until Resident D had made his complaint similarly seems an odd basis for asserting that Look Ahead did not take the treatment of the Claimant seriously. The Claimant was upset at the handover and was told she could complete an incident sheet later. In fact she never did. It is difficult to see how failing to start an investigation before receipt of any account of the incident from the Claimant could be said to show that Look Ahead was not treating the maltreatment of the Claimant seriously.[39]The third finding of fact is simply wrong as to dates, though it is correct that the Claimant was interviewed last. The uncontested evidence was that Mr Phillippo was approached by Resident D who complained. He then saw and took statements from the two agency canteen workers on respectively 1 and 6 September and then another resident who the agency workers mentioned as having been present. On 9 September he interviewed Resident D. He then arranged to interview the Claimant. That interview took place in the presence of her union representative and a member of Look Ahead's HR department. Again, we have difficulty in seeing how this shows any indication that the resident's misbehaviour was not being taken seriously.[40]The fourth finding was that that they did not inform the Claimant of the warning given to the Resident until "much later". Again, we cannot see how this indicated that Look Ahead did not treat the resident's misconduct seriously. In comparing the relevant treatment of the resident and the Claimant the important context was how the resident was dealt with and not what or when the Claimant was told about it. In this connection the minutes of the appeal meeting on 15 November are instructive. They record "HS [Hilary Simon, Director of the Look Ahead] stated that until action was taken regarding staff members behaviour then action should not be taken [against a service user]." There was no issue raised by the Claimant or her representative as to this policy at the appeal hearing. The inevitable consequence of this policy decision was that any action taken against the resident would follow the conclusion of proceedings against the employee and communication of the outcome was inevitably much later. It can be said with considerable force that Look Ahead were guilty of lack of consideration to the Claimant in not keeping her informed what was done about Resident D, but that is not the same as saying that it did not treat the result of his misconduct seriously.[41]The last fact relied upon was the supposed failure to take account of the provocation the Claimant suffered in determining the penalty. It is unclear on what basis this finding was made. The minutes of the appeal hearing contains the following passage "HS [the chair of the appeal panel] asked [Mr Walker] whether the disciplinary panel discussed the provocation that [the Claimant] might have had. Mr Walker confirmed that the statements do reflect that there was service user provocation, but her response to this was considered." There is no record that the Claimant's representative referred to the issue of provocation, perhaps not surprisingly since (contrary to the Tribunal's view) his case was that there had never been any misconduct by the Claimant. The decision letter stated that:
"in reaching its decision, the panel gave full consideration to the oral submission by Glen Walker, the chair of the disciplinary panel who summarized the proceedings of the disciplinary hearing and notes of the disciplinary hearing, which concluded in the decision to dismiss you. The appeal panel also gave full consideration to your written letter of appeal and the oral submission made by both yourself and William Everett on your behalf during the hearing."
It seems on the basis of this material that there was no basis for the Tribunal's finding that Look Ahead failed to take the provocation into account, nor is there any indication (if such were the case) as to why the Tribunal found that the decision letter did not accurately reflect the views of the panel and the reasons for its decision. Despite the failure of the Claimant's representative to raise the point it is clear the disciplinary panel and the appeal panel were alive to the issue of provocation.[42]The Tribunal then went on to state that Resident D was not a proper comparator (as had been conceded by the Claimant before the hearing started) but to say that the facts found showed that Look Ahead had failed to deal swiftly and decisively with an incident dealing with an element of racial abuse to an employee at the same time as it dealt with the conduct of the employee in the same incident. It concluded that "They did not treat both elements of the incident with the same seriousness as in our judgment they ought to have done." It is difficult to see why the fact that one participant in the incident was dealt with before the other shows that the two elements were not treated with the same seriousness.[43]The Tribunal at paragraph 82 found three facts which could lead to an inference of less favourable treatment. They were (1) and (4) which we have dealt with at paras 37 and 40 above. The remaining fact was that "[Look Ahead] seized upon the apparent breach of the Personal Safety at Work Code and used it against the Claimant in her disciplinary hearing, in the dismissal letter and at the appeal".[44]What is unclear is why the Tribunal took the view that Look Ahead had "seized upon" the point. The way in which the point arose was that it was raised by the Claimant's representative and persisted in not only at the initial hearing but on the appeal. The issue as to the apparent breach of the Personal Safety at Work policy was made by her representative by way of explanation of the background to the incident or as excuse or mitigation and by way of criticism of the management in allowing her to be alone (save for the agency canteen workers) when the incident occurred. It was therefore necessary for Look Ahead to deal with the point. Similarly the point was raised as a principal ground of appeal and so again had to be dealt with. In these circumstances it is difficult to see how it could be said that Look Ahead had "seized on" the point. It was a point regarded as being important by the Claimant and it would have been utterly wrong for the point not to have featured prominently in the proceedings and on the appeal.[45]At this stage in its judgment the Tribunal had not looked for any actual or hypothetical comparator. It is difficult to see in those circumstances how it could have found an inference of "less favourable treatment". "Less favourable than what?" is the obvious question. Resident D was not a comparator. The Claimant had rightly discarded him as a comparator because the position of the staff and the disadvantaged residents of the hostel could not properly be compared. But the terms of findings (1) to (4) and paragraph 81 clearly suggest that in truth the Tribunal was using Resident D as the comparator. If it was not, it was simply asserting that because it found the way in which Look Ahead dealt with the incident was unsatisfactory, therefore there was an inference of less favourable treatment on the grounds of race.[46]The Tribunal did go on at paragraph 86 to reject certain proposed actual comparators and then at paragraph 87 adopted a hypothetical comparator. However the Tribunal appears to have selected the wrong hypothetical comparator, given that(a) it makes no reference to the comparator having a second written warning on his record and(b) no mention to any racial element in the conduct suffered by the hypothetical comparator. It may well be that the latter of these disparities would have adversely affected Look Ahead and the former may well have been of marginal relevance, but even so the hypothetical comparator was not a true comparator.[47]Even assuming for present purposes that the Tribunal was in some way silently referring back its hypothetical comparator, introduced at paragraph 87 of the judgment to its earlier finding of an inference of less favourable treatment at paragraph 82 and assuming that the hypothetical comparator was a sufficiently accurate comparator for the purposes of the case there remains a further difficulty. There is nothing in the judgment to indicate why the Tribunal thought that the treatment of the Claimant which it regarded as unsatisfactory might in any way have been connected to her race.[48]In our judgment the findings of the Tribunal were not such as could properly have led it to the conclusion that there was an inference of less favourable treatment on the grounds of race and that should have been the end of the matter.[49]Even if, contrary to our view, that the Tribunal was entitled to hold on those facts that the onus had shifted to Look Ahead, there are further problems with the decision. The Tribunal looked at Look Ahead's case that the Claimant was disciplined and dismissed for breach of the professional conduct code at para 84, but the Tribunal found that "her dismissal was for something different" as set out. It said:
"The Respondent interpreted the personal safety at work policy to the Claimant's detriment. The apparent breach of the Personal Safety at Work Code features and becomes the main subject of discussion in her disciplinary hearing and appears even more prominently in the appeal hearing and was therefore in the mind of the dismisser when the decision to dismiss rather than apply any other sanction short of dismissal. The Respondent then put that incident together with the final written warning which she had received over her misuse of the laundry facilities, it was decided that they had no choice but to dismiss her. This is not therefore a dismissal based on the breach of the professional conduct code."
[50]The evidential basis on which the finding was based was as follows: Mr Phillippo's evidence was that "The only allegation against Bola at the hearing was that set out in Look Ahead's letter of 28 September 2004 that she had breached Section i of the Professional Code of Conduct". At the disciplinary hearing her Union Representative raised the issue of why she was on her own in the canteen when the incident occurred. Under Look Ahead's Personal Safety at Work policy an office should be staffed by two members of staff where possible. There was also a protocol in place at the hostel that no one remained alone in the canteen. It was not raised as an allegation of misconduct that Bola had breached the Personal Safety at Work policy or this protocol and I understood from her Union Representative that he was raising this as a mitigating factor in her defence."[51]Mr Walker's evidence was "The only allegation that the disciplinary panel considered was the allegation that she had verbally abused a resident. There was discussion during the disciplinary hearing as is evidenced by the note of the hearing regarding the fact that Bola was left alone on duty in the canteen. Bola's Union Representative, Will Everett, raised this as a factor in her defence and that she had been alone. The panel took this into account once it had made the findings in relation to the allegation against Bola but it was not dealt with as a separate allegation against her."[52]There was no suggestion by either party that anything relevant to this issue was said in cross-examination by either of these witnesses.[53]The dismissal letter following the disciplinary hearing stated:
"On the allegation of misconduct that you breached Look Ahead's Code of Conduct, particular section i 'professional conduct' the panel have made the decision to uphold the allegation of misconduct. Taking into account that you have on file a final written warning in existence the sanction being imposed by the panel is that of dismissal with payment in lieu of notice."
[54]The letter setting out the decision of the appeal panel stated:
"It is the decision of the panel that the allegation of misconduct as concluded by the disciplinary panel be upheld in this instance on the basis that you breached Look Ahead's Code of Conduct, section i Professional Conduct. The panel took into account the fact that you had on file a final written warning in existence and therefore imposed the sanction of dismissal with payment in lieu of notice. Having carried out a proper investigation, we feel that there was sufficient evidence to reasonably believe that you were verbally abusive to a service user."
[55]We take the view that this passage in the judgment simply does not inform Look Ahead as to why the point has been decided against it. The Tribunal jumps from the fact that the disciplinary panel had in mind a factor which was raised as a matter of defence or mitigation, which was specifically raised by the Claimant in her grounds of appeal, and which had to be investigated if it was to be given weight, to the conclusion that the misconduct found proven was not that set out in the letter but some other misconduct. It does the same in relation to the decision of the appeal panel. The judgment then goes on to assert that Look Ahead had "put that incident together with the final written warning" and decided that "they had no choice but to dismiss her. This is not therefore a dismissal based on the breach of the professional conduct code." This is simply a non sequitur . Both the disciplinary panel and the appeal panel spelled out clearly the two-stage process through which they went(1) a finding of misconduct by breach of the professional conduct provisions of Look Ahead's code and(2) the imposition of a penalty, at which stage the existence of a final written warning was taken into account.[56]On the state of the evidence before the Tribunal, and in the absence of any reasoning in the Tribunal's judgment as to why it rejected the express evidence of the two witnesses or as to why it found that the two letters did not reflect the true reasons for the panels' respective decisions, it seems to us(a) that the decision is not " Meek compliant" and(b) that, bearing in mind the high hurdle set by Crofton , it is perverse. There was, it seems to us, no evidentiary basis on which it could have come to the conclusion which it did.[57]The Tribunal then constructed its hypothetical comparator and went on to find discriminatory treatment in paragraph 87 (set out at paragraph 19 above) and to make its finding at paragraph 88:
"?.This is a worker who has been employed since 1988 without ever having behaved towards a resident in that way prior to this incident. In our judgement, such a comparator would not have been dismissed. It is probable that in the case of the hypothetical comparator the Respondent would have applied some other sanction short of dismissal."
[58]This, in our view, reveals the Tribunal's suspicion that the Claimant was ill-advised to withdraw her claim for unfair dismissal. This may or may not have been the case, but it was irrelevant to the issues before the Tribunal. The decision gives no reason at all for these conclusions. It is notable that the Tribunal does not put its decision in terms that Look Ahead had failed to discharge the onus on it of showing that there was "no discrimination whatsoever", but in terms of a positive finding that a white worker would have been treated differently. Again we take the view that not only is the decision not " Meek compliant" but that it is " Crofton perverse".[59]At paragraph 89 the Tribunal then summarised its conclusions on race discrimination, finding that the Claimant suffered detriment in three respects(1) that Look Ahead "failed to consider the racial abuse she suffered seriously enough;(2) that it failed to "deal appropriately" with Resident D or "to inform her when they did", and(3) took into account irrelevant uninvestigated considerations at the internal hearings which resulted in her dismissal".[60]The first and third of those points have been dealt with above. As to the second, it was a point taken into account at the stage when the Tribunal considered whether there was material from which it could draw an inference of race discrimination. It was not revisited at the second stage when the Tribunal should have considered Look Ahead's reasons for its actions. It did not do so. The explanation given (to which the Tribunal made no reference in its judgment) was given by Mr Phillippo at the disciplinary hearing:
"Q. Have you had any meetings with [Resident D] regarding this? A.I had a conversation, informing [Resident D] that I would need to discuss the matter further with him. I obviously didn't want to get into a discussion re [the Claimant's] position and I intend to speak to him on Monday following the outcome of this investigation. Q. Has he not been written to even though he has racially abused a member of staff, I think something should be done about this matter? A. I think you are right about [Resident D]. I should have written to say that he has been abusive. But where allegations have been made against staff the policy is very clear, but with service users the procedure is less clear. I didn't want to prejudice the situation, and I was not able to discuss why [the Claimant] was not at work."
[61]In our judgment if the Tribunal had considered that explanation it ought to have come to the conclusion that Look Ahead had discharged the onus on it of showing there was no element of race discrimination in the way the Claimant was dealt with in this respect.[62]It follows that in our view the decision of the Tribunal cannot stand. There was a combination of error of law and perverse findings of fact. The appeal should therefore be allowed and the Claimant's claim for race discrimination must be dismissed.