MR O OLASEHINDE v PANTHER SECURITIES PLC [2008] UKEAT 0554_07_1006

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2008] UKEAT 0554_07_1006

Case No Appeal No. UKEAT/0554/07

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR O OLASEHINDEAPPELLANT

PANTHER SECURITIES PLCRESPONDENT

Before

Mr Justice Underhill Dr B V Fitzgerald

Date 10 June 2008

[1]APPEARANCES For the Appellant MR A ELESINNLA (of Counsel) Instructed by: Messrs MTG Solicitors Warley Chambers 2nd Floor Warley Road Hayes Middx UB4 0PU For the Respondent MR N WEINIGER (of Counsel) Instructed by: Panther Securities PLC Legal Services Panther House 38 Mount Pleasant London WC1X 0AP SUMMARY RACE DISCRIMINATION Detriment CONTRACT OF EMPLOYMENT Wrongful dismissal Appellant wrongly and unreasonably accused by employers of sexual harassment. Employers accept his denial but instruct him not seek to discuss the charges with the alleged victim. Appellant subsequently disobeys that instruction and is summarily dismissed. Tribunal holds:(1) Appellant not entitled to a claim that dismissal was discriminatory because no such claim raised until closing submissions.

(2) Original accusations constituted racial discrimination within s.1(1)(a) of Race Relations Act 1976 but not unlawful because they did not constitute a detriment for purposes of s.4(2)(c).

(3) Summary dismissal for disobedience of instruction lawful. Appeal dismissed on (1) and (3) but allowed on (2) - Making of false and unreasonable disciplinary accusations capable of constituting a detriment even though no sanctions were imposed: De Souza v Automobile Association

[1986] ICR 514

considered. THE HONOURABLE MR JUSTICE UNDERHILL This is an appeal against the decision of an Employment Tribunal sitting at Stratford dismissing the Appellant's claims of racial discrimination and wrongful dismissal. The Tribunal also dismissed a claim of sex discrimination, but there is no appeal in that respect. The Appellant has been represented before us by Mr Ayoade Elesinnla, who did not appear below. The Respondents have been represented by Mr Noah Weiniger, who did appear below. The Facts

[2]It is unnecessary that we summarise the Tribunal's findings of fact in any detail. For the purposes of this appeal the following will suffice.

[3]The Respondents are a property investment company. They own and manage premises in Whitechapel which include a number of residential flats. From 18 May 2005 until his dismissal on 24 March 2006 the Appellant, who is black, was employed as the caretaker of the premises. One of the tenants was a young lady called Caroline Joyce, a trainee solicitor. On 3 March 2006, which was a Friday, some furniture was delivered for Miss Joyce. The Appellant helped to bring it up to her flat, which was on the fifth floor. In the course of doing so he accidentally locked her out of the flat, and a locksmith had to be called to obtain access. Miss Joyce telephoned the Respondents at their office to obtain a refund of the locksmith's charge.

[4]In Miss Joyce's evidence to the Tribunal about her call to the Respondents she said that she initially spoke to a secretary and explained the problem about the locksmith; but that in the course of doing so she said something to the effect that she felt "uncomfortable" in the presence of the Appellant, at which point, one of the directors, a Mr Doyle, took over the conversation and suggested that she was saying that the Appellant was "imposing himself" on her. On her account, that was not at all what she had said and she became upset. Mr Doyle also gave evidence about this conversation but his account was different. He said that Miss Joyce was already distressed when he took over the call and that she did indeed complain of what was, if true, serious misbehaviour on the part of the Appellant. A note taken, apparently contemporaneously or near-contemporaneously, summarised his version of the conversation in the following terms:

"He [that is to say the Appellant] keeps asking her out. If mail is delivered he takes it up to her flat, knocks on the door, barges past her in to the flat and sits down asking why she's still not going out with him."

In her evidence to the Tribunal Miss Joyce denied that account of what she had said. It seems likely that she did refer to the Appellant having asked her out, since she told the Tribunal that he had indeed done so on one occasion about three months earlier, and it was largely that which was responsible for her feelings of "discomfort" about him. But she did not say that he "kept doing so" nor that he had behaved as alleged when delivering mail. The Tribunal expressly accepted what she said about that; and it follows that, as it indeed found, Mr Doyle had seriously exaggerated and distorted what she had said about the Appellant.

[5]It appears that Mr Doyle came to see Miss Joyce and her mother later the same day. According to his evidence before the Tribunal, she again described the Appellant's behaviour in a way which went beyond the very limited allegation, if it can so be called, which she told the Tribunal that she had made; but the Tribunal must be taken to have rejected his evidence on that point.

[6]On the following Monday, 6 March, Mr Doyle, accompanied by a colleague called Mr Peters, held a meeting with the Appellant at which he told him that Miss Joyce had complained that he was "harassing" her. The version of her allegations which he put to the Appellant was consistent with, although it contained some further elaborations of, the distorted and exaggerated version of her original statement. There was a dispute before the Tribunal as to whether the Appellant was told that Miss Joyce's allegation was of "sexual harassment" or simply of "harassment". The Tribunal, by a majority, held that it was the latter. But the majority also said that at the end of the day the point might not make much difference, since it was "… certainly of the view that the allegation of harassment was presented in a context and manner that gave it manifest undertones of sexual motivation, and the examples given were all examples of [the claimant] trying to become more intimate with [Miss Joyce]." We agree that the point does not have the importance which it appears that the parties attached to it at the hearing. The Appellant denied the allegations as they were reported to him.

[7]The Tribunal's finding as to the eventual outcome of the meeting on 6 March was put at paragraph 2.3 of the Reasons as follows:

"… the Respondent informed Mr Olasehinde that his denials were accepted but he was instructed that any future contact with Caroline Joyce must be on a professional basis and he must not speak to her about the allegations which had been made by her and discussed at the meeting."

In a subsequent passage of the Reasons (see paragraph 11) the Tribunal put it a little differently, although the difference is not one of substance:

"What is not disputed about this meeting on 6 March 2006 is that Mr Doyle informed Mr Olasehinde that they would accept his word for what had happened, or had not happened, as between himself and Miss Joyce. And Mr Olasehinde was instructed not to talk to Miss Joyce about what he had told Mr Doyle and Mr Peters."

The Appellant was - understandably if the allegations were untrue - deeply upset, and the Tribunal found (see para. 2.3 of the Reasons) that he was:

"… so angered or disturbed by what he had been accused of that the following day he went and complained to the police but they took no action."

[8]On 23 March 2006 there was an incident between Miss Joyce and the Appellant, which she described in an email to Mr Doyle later that day. Her account in that email was as follows:

"As I was exiting the lift this morning on my on my way to work Ola [that is, the Appellant] waved at me to attract my attention and handed me a parcel. Although I was clearly in a hurry to get to work and listening to music on my MP3 Player, he asked if he could ask me a question. I explained I was running late and didn't have time but he insisted that I stay and listen to what he had to say. Ola then proceeded to question me about the complaint I had made to you on 3 March 2006. He told me that I should not tell you anything about this conversation. It was not a particularly pleasant experience and consequently I was late for work."

[9]Later that day, Mr Doyle got to hear of the incident (it is not clear how) and telephoned Miss Joyce at work to obtain her account of it, which she gave in the email which we have just quoted. The next day, 24 March, he confronted the Appellant, who accepted that, contrary to Mr Doyle's express instructions on 6 March, he had spoken to Miss Joyce about her allegations. He was then summarily dismissed.

[10]Following the Appellant's dismissal, he lodged a written grievance. In the Respondents' response Mr Doyle repeated the distorted and exaggerated version of Miss Joyce's initial allegations, and he also distorted her complaint about the incident of 23 March by saying that it was she who had made the initial complaint to him - whereas it was in fact he who had contacted her for her account of the incident; and indeed it was her evidence to the Tribunal that although she had not been at all pleased by what the Appellant had done she had not been intending to take it further. Mr Doyle also said that Miss Joyce had complained that the Appellant had "blocked her path of exit from the building, forcing her to stop": Miss Joyce had said no such thing. The Proceedings and the Tribunal's Judgment

[11]The Appellant's claim was presented on 31 May 2006. The claim was put in a number of different ways, most of which were not in the end pursued before the Tribunal. Particulars were given in a document served with the ET1 headed "Claim". This set out in summary form the Appellant's version of the facts and then set out, head by head, the particular legal claims which he was advancing. The claim of racial discrimination is made in paragraph 13 of the document, and is in the following terms:

"Management accused the Claimant of sexual harassment at the meeting of 6th of March 2006 in a meeting with Mr John Doyle and Mr Peters. In their letter of the 6th of March 2006 the Respondent then denies any knowledge of the fact that the Claimant had been told that the Complaint allegedly made by Miss Joyce was a complaint of sexual harassment. Further the Respondent stated to Miss Joyce that there were other women who had made complaints about the Claimant, suggesting that there were further complaints relating to sexual harassment. [We pause to interpose that that was not a matter on which the Tribunal made any finding in the Reasons.] The Claimant believes that the Respondents' actions were racially motivated, and made the presumption of guilt on the Claimant's part, without investigating the issues, because of the prejudicial image of a predatory black male."

[12]It should be noted, because it is important to one of the issues in this appeal, that that pleading contains no express allegation that the dismissal of the Appellant was on racial grounds. The act complained of appears to be specifically the accusations made on 6 March and the way in which those were presented. Nothing is said about the incident of 23 March or the Appellant's dismissal on 24 March.

[13]There was also a claim pleaded of unfair dismissal, said to be unfair because the Appellant had made a complaint about health and safety: that was one of the complaints which were not in the event pursued. There was no claim of wrongful dismissal, although one was in due course permitted to be advanced.

[14]There was a case management discussion on 15 December 2006. The summary produced by the chairman contained some amplification of the facts alleged but there remains nothing in the summary to suggest that the Appellant was seeking to complain that his dismissal was on racial grounds. Indeed, paragraph 5.2 of the summary tends to confirm that it was not. That reads as follows:

"The Claimant put his case on the basis of a hypothetical comparator, namely a white man who had allegations of sexual harassment made against him. He alleges that [such a] hypothetical comparator would have been treated differently by the Respondent who would have fully investigated the allegations being made against their employee."

The act complained of there again appears to be the putting forward an allegation without proper investigation.

[15]The case was heard before the Tribunal over three days in August 2007. The Respondents were represented, as we have already noted, by Mr Weiniger. The Appellant was represented by a Mr Ocloo of Equinox Law. Despite the name of that business, it is not a firm of solicitors and so far as we can see from the papers Mr Ocloo does not appear to have been a solicitor or barrister.

[16]The Judgment, with Reasons, was sent to the parties on 10 September 2007. The Tribunal, as we have said, unanimously dismissed the Appellant's claim of sex discrimination, but on the claim with which we are concerned in this appeal its decision was by a majority. The Judgment is expressed as follows:

"(i) the Claimant was discriminated against by the Respondent on racial grounds but such discrimination did not subject him to any detriment; (ii) the Respondent was contractually entitled summarily to dismiss the Claimant; (iii) accordingly, the complaints of unlawful race discrimination and wrongful dismissal fail and must be dismissed."

[17]The Tribunal's reasoning on the two claims which were thus dismissed can be summarised as follows. Racial discrimination

[18]At paragraph 23 of the Reasons the Tribunal made the following finding:

"… we have no difficulty in reaching the conclusion that the Respondent would not have embellished, exaggerated and distorted complaints about the conduct of a caretaker if the caretaker had been a white male. Accordingly we find that Mr Olasehinde has been subjected to less favourable treatment. Furthermore in the absence of any explanation from the Respondent it should have acted as it did, and none has been provided, we are bound to infer that the reason for the Respondent behaving in this way was racially motivated. In short, the Claimant received less favourable treatment because of his race."

Something seems to have gone wrong with the precise wording of the penultimate sentence, but the sense is clear.

[19]The Tribunal then proceeded to address what it described at paragraph 24 as "… [the] one outstanding issue, namely whether Mr Olasehinde has suffered a detriment by reason of the Respondent's discriminatory act." It recorded what it described as a "tentative suggestion" by Mr Ocloo that the detriment constituted the Appellant's dismissal, but it rejected that submission on the basis that it had never been pleaded or otherwise advanced until closing submissions. It observed that:

"… if it was considered that [Miss Joyce's] evidence enabled Mr Olasehinde to advance the case that he was racially discriminated against by his dismissal, an application to amend could have been made at the outset of the Hearing. In fact, no application to amend was made at any stage, even by Mr Ocloo in his final address. Thus in considering whether the Respondent has discriminated against Mr Olasehinde by subjecting him to detriment we cannot treat his dismissal as that detriment."

It then referred at paragraph 25 to Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

, and in particular to the speech of Lord Hope at paragraphs 31ff. (see pp. 349 - 350) and said this:

"The broad ratio of the case is that there need not be financial or economic loss for there to be detriment. Lord Hope reminded us that 'detriment' was a word which must be given a wide construction; and he adopted May LJ's statement in the case of De Souza v Automobile Association [1986] IRLR 103 , 107 as to what constituted detriment which Lord Hope summarised as follows: ' The Court or Tribunal must find that by reason of the act or acts complained of, a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances of which he had thereafter to work.' "

[20]The Tribunal continued, at paragraph 26 of the Reasons, as follows:

"In this case the Tribunal would have unhesitatingly and unanimously come to the view that there was detriment if, by way of example, at the end of the meeting on the 6 March 2006, Mr Olasehinde had been informed that, although the Respondent was not going to take any action, it would leave the allegations on Mr Olasehinde's file and would have reference to them should it be appropriate in the future course of his employment. However, that is not what happened. It is not disputed that not only was there no adverse finding made against Mr Olasehinde at the conclusion of the meeting, he was told that his word would be accepted and that, to paraphrase to some degree, a line would be drawn under the whole incident. In these circumstances the view of the majority is that Mr Olasehinde did not suffer any detriment as a result of the inflated accusations which were made against him in the course of the meeting of the 6 March 2006. Our member, Mr Banks, has a different opinion. He considers that the allegation of sexual harassment continued to hang over Mr Olasehinde. The allegation was, in fact, 'on file' because all the notes and correspondence relating to the 6 March meeting and other incidents were retained by the Respondent. There was no express clearance of the Claimant's name, which there should have been, and it was an allegation which, on Mr Olasehinde's evidence, continued to worry him. Furthermore, Mr Banks concludes that it was because of the accusation of sexual harassment which, even though not accepted, caused there to be imposed upon Mr Olasehinde the direction that he should not speak to the Miss Joyce about the matter and it was that direction which eventually led to his dismissal. So, in Mr Banks' view there was not only racial discrimination, there was racial discrimination which included subjecting Mr Olasehinde to a detriment."

Wrongful dismissal

[21]Turning to the claim for wrongful dismissal, at paragraph 28 of the Reasons, the Tribunal reminded itself that the Appellant was not entitled to claim for unfair dismissal because he did not have sufficient qualifying service. Under the terms of his contract of employment he could be summarily dismissed if he had committed "gross misconduct". The question for the Tribunal was accordingly whether he had indeed committed gross misconduct. As to that, its conclusion at paragraph 29 was as follows:

"Looked at objectively the simple fact is that Mr Olasehinde had been given and express instruction by the Respondent which he had knowingly and blatantly disobeyed. In the view of the majority that instruction was not arbitrary or unreasonable because whatever the nature of the complaint which had been made by Miss Joyce, the Respondent was clearly entitled to impose restrictions upon what Mr Olasehinde said to her which would ensure that Miss Joyce, a tenant, was not embarrassed or unsettled by the fact that she had spoken to the Respondent about the conduct of Olasehinde. Accordingly, although Mr Olasehinde's dismissal might be regarded as demonstrably unfair, in the view of the majority, the Respondent was contractually entitled to dismiss him without notice. Mr Banks, again, disagrees with that conclusion. In his view, what Mr Olasehinde did was not unreasonable in the light of the accusation as relayed to him and there were substantial mitigation circumstances. Mr Banks considers the Respondent was not entitled summarily to discuss Mr Olasehinde and was in breach of contract in so doing. However, in the light of the majority view the claim of breach of contract, and indeed the claim of discrimination must fail."

[22]Finally, it is fair to note that at paragraph 30 of the Reasons the Tribunal said this by way of concluding observations:

"It has to be stated that the majority have reached their conclusions with reluctance and with some disquiet. In their view, the way in which Mr Olasehinde has been treated in this matter reflects no credit upon the Respondent or upon the manner in which it deals with its employees. If Mr Olasehinde had been in employment with the Respondent a month longer, he would have had an unanswerable case of unfair dismissal. Furthermore, he has had to face accusations of pestering a young girl [we think 'a young woman' would have been a better term] when there was no basis for such accusations. However, our duty is to apply the law and in doing so the majority reach the conclusion that this complaint must fail."

The Appeal

[23]The Appellant's grounds of appeal as originally lodged were plainly inadequate; but at a preliminary hearing on 13 February 2008 he was granted permission to amend the notice of appeal, and the appeal was permitted to proceed on the further grounds there given. We will consider separately the grounds relating to the discrimination claim and the wrongful dismissal claim. The Discrimination Claim

[24]There is no cross-appeal against the Tribunal's finding that the making by Mr Doyle at the meeting of 6 March of exaggerated and distorted allegations against the Appellant - plainly amounting, however they were formulated, to allegations of sexual harassment - constituted less favourable treatment on racial grounds. The only issue is whether he thereby suffered a detriment. Two potential forms of detriment have been canvassed in the course of the proceedings -(a) the making of those allegations themselves and

(b) the Appellant's dismissal over a fortnight later.

[25]So far as the latter is concerned, the Tribunal, as we have said, by a majority dismissed this contention, essentially on the basis that it had not been raised at any time until the Appellant's representative's closing submissions, which were of course, following the normal order, the very last submissions which the Tribunal heard. In order to ensure that full information on that aspect was before the Tribunal, a request was made following the preliminary hearing of this appeal that the members of the Tribunal should:

"… provide their comments if practicable … on the following question namely 'whether it was contended on behalf of the Claimant below that the less favourable treatment (as found unanimously by the Employment Tribunal at paragraph 23 of their reasons) was a significant factor in his dismissal' "

. The chairman, Employment

Judge Milmo QC, answered that question as follows:

"2. The short answer to the question I believe should be 'no'. The less favourable treatment found by the Tribunal was the embellishment, exaggeration and distortion of the tenant's complaints when confronting the Claimant with them on 6 March 2006. It was not suggested on behalf of the Claimant that this was a factor in his dismissal. What is recorded in my notes of the Claimant's representative's final address, under the heading 'detriment' are the words, 'presumption of guilt led to dismissal', and plainly this was an endeavour by the representative to develop an assertion made in paragraph 13 of the Claim Form quoted in paragraph 22 of the Reasons. This assertion of 'presumption of guilt' at the 6 March meeting was the core of the Claimant's case as set out in the Claim Form, and so it remained in a slightly expanded form, to encompass the lack of investigation before convening the meeting, during the Hearing. 3. As recorded in paragraph 24 of the Reasons there was a tentative suggestion in the course of the Claimant's representative's final address that his dismissal was discriminatory. This had never been alleged before, and we did not consider it right to allow it to be raised for the first time at the stage of the Claimant's final speech."

Mr Banks, however, the member who had been in the minority, said this:

"It was contended by Mr Ocloo on behalf of the claimant that the less favourable treatment was a significant factor in the claimant's dismissal. This was done by Mr Ocloo at the end of the hearing during Mr Ocloo's summing up."

It is a pity that these answers do not provide a completely clear or consistent picture of how the case relating to the Appellant's dismissal was formulated by Mr Ocloo, to the extent that it was. It does however seem to be common ground that it was only in his closing submissions that the Appellant's dismissal was put forward as the, or a, detriment relied on for the purpose of the racial discrimination claim. There does appear to be a difference between the members as to whether, when he did so, Mr Ocloo was saying that the decision to dismiss was itself taken, at least in part, on racial grounds, or that it was to be treated as having been taken on racial grounds because it was to a significant degree a consequence of the earlier discrimination.

[26]Ultimately, however, we do not think that the uncertainty about how Mr Ocloo formulated his submission matters. However the point was put, we can see no error of law in the majority taking the view that the Appellant was not allowed to rely on a detriment which he had alleged for the first time in his closing submissions. Mr Elesinnla in his succinct and clear submissions sought to persuade us that the Tribunal's findings inevitably meant that the Respondents had been guilty of a sequence of discriminatory conduct, which may have started on 6 March but which also included the events of 23 and 24 March; or, to put it another way, that the eventual decision to dismiss was "infected" or "tainted" with discrimination because the instruction of which the Appellant had been in breach was itself discriminatory, or originated in the discriminatory events of 6 March. That does not however get round the Tribunal's reasoning. It is of prime importance in any discrimination case that the claimant should clearly identify, and (save in exceptional circumstances) formally plead, each act of which he or she complains as an act of discrimination: see Chapman v Simon

[1994] IRLR 124

. The Appellant in this case had, as all the members of the Tribunal recognised, never before his closing submissions sought to raise his dismissal as an act complained of. That is, in our view, by itself sufficient to justify the Tribunal's decision; but we would add that there must be a real chance that the case would have been run differently, to a greater or lesser extent, if the Appellant had identified his dismissal as one of the detriments which he sought to allege.

[27]The Appellant might feel a grievance that an otherwise viable case was lost because of the way in which his case was put, or not put, before the Employment Tribunal. That being so, it is fair that we should add that we are in any event doubtful whether if Mr Elesinnla's submission had been advanced before the Tribunal it could have succeeded. While we accept that there were common features to the Respondents' conduct on 6 March and 24 March - in that on both occasions Mr Doyle distorted and exaggerated what Miss Joyce had said - it does not follow that the racial motivation found on the first occasion necessarily carries over into the second. There was a completely new element on 24 March, namely the Appellant's disobedience of an explicit instruction not to speak to Miss Joyce about the events of 6 March: we will have to return to this aspect again in due course. The metaphor of a "taint" of discrimination is attractive and sometimes useful, but it may be ambiguous and what is meant by it needs to be clearly understood. A decision can be said to be tainted by discrimination if the decision-taker is motivated, even subconsciously, to a significant extent by the complainant's race (or sex, or whatever it may be). But Mr Elesinnla seemed to use the terms "tainted" or "infected" also to refer to the fact that the whole incident of 23 March, and thus the dismissal of 24 March, would not have occurred but for the earlier incident on 6 March, which the Tribunal found to involve discrimination on the Respondents' part, and that the one was an important cause of the other. This approach, however, seems to us to fall foul of Lord Nicholls' well-known observations in Chief Constable of West Yorkshire Police v Khan

[2001] ICR 1065

(picking up his earlier speech in Nagarajan v London Regional Transport

[1999] ICR 877

) to the effect that tribunals should eschew the language of "causation", which he described as "slippery", and should instead ask what was the reason why the decision-taker acted as he did. Since the question whether the Appellant's dismissal was an act of discrimination was held by the majority not to arise, the question of the reason why the Respondents took the decision to dismiss was not directly addressed by the Tribunal. However, it seems likely from the terms of its findings in paragraph 29 of the Reasons that the majority would have held that the only reason why the Appellant was dismissed was that he had disobeyed the instructions given to him on 6 March. As we say, however, that is not a point on which we have to reach a final view.

[28]We return, therefore, to the other of the two potential detriments identified at paragraph 24 above, namely the making of the exaggerated and distorted allegations on 6 March. As we have seen, the Tribunal held that that did not constitute a detriment, essentially because the making of those allegations gave rise to no formal consequences: the Respondents accepted the Appellant's denial, and no disciplinary action of any kind was taken. (In that connection we should say that Mr Weiniger submits, and we accept, that the instruction to the Appellant not to discuss the events of 6 March with Miss Joyce was not a disciplinary step but a simple consequence of the situation which had arisen.)

[29]The relevant law can be summarised as follows. Section 1(1) of the Race Relations Act 1976 provides (so far as relevant):

"(1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if – (a) on racial grounds he treats that other less favourably than he treats or would treat other persons– (b) … "

. It is trite law that section 1 does not itself render such discrimination unlawful: the scheme of the Act is that discrimination is defined in Part I and that in subsequent Parts of the Act it is rendered unlawful in certain specified fields, including, so far as relevant to the present case, the employment field. Section 4(2), which falls under Part II of the Act, provides that:

"It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee (a) … (b) … (c) by dismissing him or subjecting him to any other detriment. "

[30]It follows that, as Lord Hoffmann said in Khan (above) - see paragraph 53 at page 1077:

"Being subjected to detriment (or being treated in one of the other ways mentioned in section 4(2)) is an element in the statutory cause of action additional to being treated 'less favourably' which forms part of the definition of discrimination. A person may be treated less favourably and yet suffer no detriment."

We are bound to say, however, that we are far from sure that the draftsman split the two concepts advisedly, and there will be at the very least a very considerable overlap between the two.

[31]There have been a number of cases on what may or may not suffice to constitute detriment for the purposes of section 4(2). For present purposes, it is sufficient for us to refer to the decision of the House of Lords in Shamoon (above). In that case the applicant, who was a Chief Inspector in the Royal Ulster Constabulary, complained that on the grounds of her sex she had been stopped from carrying out one of her previous job roles, namely performing appraisals of police constables, which led to her feeling undervalued and marginalised. One of the issues in the case was whether that constituted a detriment. The leading speech, so far as regards this point, is that of Lord Hope. We need for present purposes to set out only paragraphs 34 - 37, which read as follows:

"34. The statutory cause of action which the appellant has invoked in this case is discrimination in the field of employment. So the first requirement, if the disadvantage is to qualify as a "detriment" within the meaning of article 8(2)(b), is that it has arisen in that field. The various acts and omissions mentioned in article 8(2)(a) are all of that character and so are the words "by dismissing her" in section 8(2)(b). The word "detriment" draws this limitation on its broad and ordinary meaning from its context and from the other words with which it is associated. Res noscitur a sociis. As May LJ put it in De Souza v Automobile Association [1986] ICR 514 , 522G, the court or tribunal must find that by reason of the act or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work. 35. But once this requirement is satisfied, the only other limitation that can be read into the word is that indicated by Lord Brightman. As he put it in Ministry of Defence v Jeremiah [1980] QB 87, 104B, one must take all the circumstances into account. This is a test of materiality. Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment? An unjustified sense of grievance cannot amount to "detriment": Barclays Bank plc v Kapur and others (No 2) [1995] IRLR 87. But, contrary to the view that was expressed in Lord Chancellor v Coker and Osamor [2001] IRLR 116 on which the Court of Appeal relied, it is not necessary to demonstrate some physical or economic consequence. As Lord Hoffmann pointed out in Khan's case, at p 1959, para 52, the employment tribunal has jurisdiction to award compensation for injury to feelings whether or not compensation is to be awarded under any other head: Race Relations Act 1976, section 57(4); 1976 Order, article 66(4). Compensation for an injury to her feelings was the relief which the appellant was seeking in this case when she lodged her claim with the tribunal. Her complaint was that her role and position had been substantially undermined and that it was becoming increasingly marginalized. 36. The question then is whether there was a basis in the evidence which was before the tribunal for a finding that the treatment of which the appellant complained was to her detriment or, to put it more accurately as the tribunal did not make any finding on this point, whether a finding that the appellant had been subjected to a detriment could reasonably have been withheld. 37. It is clear that the treatment of which the appellant complains was in the field of her employment. The practice by which she did the appraisals of constables as part of her job in the Urban Traffic Branch had been terminated. As for the question whether a reasonable person in her position might regard this as a detriment, the background is provided by the fact that not only was it the practice for the appraisals to be done by the chief inspectors but this was, as the tribunal put it, endemic in the Force. There was evidence that the appellant had carried out as many as thirty five appraisals since she was promoted to the rank of chief inspector. Once it was known, as it was bound to be, that she had had this part of her normal duties taken away from her following a complaint to the Police Federation, the effect was likely to be to reduce her standing among her colleagues. A reasonable employee in her position might well feel that she was being demeaned in the eyes of those over whom she was in a position of authority. The tribunal did not make an express finding to that effect, but there was material in the evidence from which this conclusion could be reasonably be drawn. The respondent did not lead any evidence to the contrary, so he is in no position to resist the drawing of these inferences from the evidence.

(b) "

Lord Hutton agreed:

see paragraph 91 (at p.370). Lord Scott, too, said at paragraph 104 (p.372) that he was in "general agreement" with Lord Hope, although at paragraph 105 he expressed a reservation in the following terms. "105. My only reservation is that the test of detriment as expressed by Brightman LJ in Ministry of Defence v Jeremiah

[1980] QB 87

at 104, cited by Lord Hoffmann in Chief Constable of the West Yorkshire Police v Khan

[2001] 1 WLR 1947

at 1959-1960 (see paras 33 and 35 of Lord Hope's opinion), namely, that "a detriment exists if a reasonable worker would or might take the view that the [treatment] was in all the circumstances to his detriment", must be applied by considering the issue from the point of view of the victim. If the victim's opinion that the treatment was to his or her detriment is a reasonable one to hold, that ought, in my opinion, to suffice. In Khan the complainant, desiring to apply for a new job, wanted a reference to be given by his employers. His employers refused to give one. It was clear that if they had given one it would have been an unfavourable one. It might be said that a reasonable worker would not want an unfavourable reference. But the complainant wanted to be treated like all other employees and to be given a reference. The House concluded that this was a reasonable attitude for him to adopt and that the refusal to give him a reference constituted "detriment". He was being deprived of something that he reasonably wanted to have. And while an unjustified sense of grievance about an allegedly discriminatory decision cannot constitute "detriment", a justified and reasonable sense of grievance about the decision may well do so. On the facts of the present case I agree with Lord Hope that the appellant was entitled to a finding that she was subjected to a detriment within the meaning of Article 8(2)(b) of the 1976 Order." Lord Rodger agreed with Lord Hope without qualification: see paragraph 124 (at p. 377). Lord Nicholls did not expressly refer to the detriment issue at all, but he plainly agreed with the majority.

[32]Mr Elesinnla submits that it is clear from Shamoon and the other authorities cited by Lord Hope that the Tribunal in the present case, despite purporting to direct itself by reference to those passages, took too narrow an approach. He submits that, adopting the broad approach expounded by Lord Hope, it is evident that any normal employee would regard it as a detriment to be confronted by his employer with allegations of sexual harassment (whether or not that precise term was used), even if in the end the employer decides to "accept his word" (whatever exactly that means) and to take no further action.

[33]Mr Weiniger, by contrast, submits that the case is essentially analogous with that of mere insulting words and refers us in particular to the decision of the Court of Appeal in De Souza v Automobile Association

[1986] ICR 514

. He relies in particular on a passage in the judgment of May LJ at p.522 G - H, where he refers to a submission from counsel that the detriment or disadvantage to the employee should be in the "employment context". After referring to the authorities cited by counsel, he says this:

"Apart from the actual decisions in these cases I think that this necessarily follows upon a proper construction of section 4 and in particular Section 4(2)(c) of the Act. Racially to insult a coloured employee is not by itself enough, even if that insult caused him or her distress; before the employee can be said to have been subjected to some "other detriment" the court or tribunal must find that by reason of the act or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work."

That passage was referred to by Lord Hope in Shamoon with approval and, as we have seen, was specifically referred to by the Tribunal in its Reasons. It does not, however, seem to us that the effect of those observations is that there was no detriment on the facts of the present case. What occurred in the present case goes beyond a mere insult. The Appellant was called by two directors of the Respondents to a meeting and serious allegations were put to him. Although (which was in itself a matter of criticism) the Respondents did not use any procedural formalities, what was clearly happening in practice was that a disciplinary charge was being brought against him. If, as the Tribunal found, there was no reasonable basis for the making of that charge, we do not see how to be confronted with it can be said to be anything other than a detriment. If it were necessary (in the light of the passage from the judgment of May LJ in De Souza to which we have referred) to characterise what happened as causing the Appellant a disadvantage in the circumstances in which he thereafter had to work, we have no difficulty in discerning such a disadvantage in the present case. The Appellant had been told in clear terms of a serious allegation which it was being said had been made against him by a tenant in the block of which he was a caretaker, who was a person with whom he was going to have to continue to deal on a regular basis in the course of his employment. That was bound to cause real difficulties and constraints to him in his conduct towards her.

[34]We should in this connection remind ourselves of the facts in De Souza . The putative detriment in that case consisted of the appellant overhearing, when passing an open door, a manager asking one of his subordinates to give some typing to 'the wog', meaning her. The remark, though evidently offensive, was not directed at her or intended to be heard by her. It was in that context that the Court of Appeal held, as summarised, in the headnote:

"… that for the employee's description as 'the wog' to have constituted … a detriment, it had to be shown both that she had been intended to hear it and that having heard it a reasonable coloured employee in the same situation would have felt disadvantaged in the circumstances and conditions of her employment, but that such a conclusion was not supported by the findings of the industrial tribunal … ."

That was a very different factual background, and the general observations of May LJ must be read in the light of those facts and those issues.

[35]We accordingly believe that the Tribunal was wrong in law to hold that the facts which it found did not constitute a detriment to the Appellant. We should say that that would be our view even on the basis simply of the speech of Lord Hope in Shamoon . It would be further reinforced if we had regard to the qualification made by Lord Scott at paragraph 105 of his speech; but it is unnecessary that we rely on that passage for the purpose of our decision.

[36]The consequence is that a finding of racial discrimination on 6 March 2006 must be made. We overturn the decision of the Employment Tribunal on this issue with less reluctance because, as we have already quoted from the Reasons, the Tribunal was itself uneasy about the conclusion to which it felt compelled to come.

[37]The case must be remitted to the Tribunal for consideration of the question of remedy. As we understand the Tribunal's findings, that compensation will be essentially on the basis of injury to feelings. If we have correctly understood (see paragraph 27 above) that the Tribunal's view was that the dismissal of the Appellant was essentially distinct from the discriminatory acts which it had found on 6 March, and was not (save in the "but for" sense) a consequence of those acts, compensation for that dismissal would be inappropriate. The Wrongful Dismissal Claim

[38]On the face of it, we can see nothing wrong in the conclusion of the majority that it constituted gross misconduct for the Appellant to seek to raise with Miss Joyce the question of what she had said to the Respondents about him on 6 March. He had been given a clear instruction to that effect, which he flatly and deliberately contravened. The Tribunal expressly found that the instruction was reasonable, evidently on the basis that it was reasonable for the Respondents to take the view that it was inappropriate for Miss Joyce, having said what she did in good faith, to be confronted directly about it by the Appellant. The Tribunal was entitled to take that view. The deliberate flouting of a reasonable instruction is well recognised as gross misconduct of a kind sufficient to justify summary dismissal at common law.

[39]Mr Elesinnla, however, submitted that the instruction in the present case could not be regarded as reasonable, or indeed lawful, since it was rooted in the discriminatory events of 6 March and - to use that term again – "tainted" by discrimination. It is far from clear whether that point is in fact open to him. It does not seem to have been raised by Mr Ocloo before the Tribunal, and there has accordingly been no express consideration by the Tribunal of whether or not the giving of the instruction was indeed discriminatory. But, even if it is open to us to consider the question, on the basis of the facts as found we would reject Mr Elesinnla's submission. The Tribunal plainly took the view that, however discriminatory the Respondents' conduct may have been in the way in which Mr Doyle misrepresented and exaggerated Miss Joyce's comments, the instruction to the Appellant not to raise those comments with her was a separate matter and was, as we have said, reasonable. We do not see any sign that the Tribunal found it to have been tainted by discrimination, nor do we think that it follows from the findings that it made that it must have been.

[40]In those circumstances, we dismiss the appeal as regards the wrongful dismissal claim.