Central Manchester University Hospitals NHS Foundation Trust v Browne (Race Discrimination : Inferring discrimination) [2011] UKEAT 0294_11_1002

EAT

Central Manchester University Hospitals NHS Foundation Trust v Browne (Race Discrimination : Inferring discrimination)

[2011] UKEAT 0294_11_1002 · 2012-02-10

[1]This is an appeal from the Judgment of an Employment Tribunal sitting in Manchester in October - December 2010 and January - February 2011. The reserved Judgment and Reasons were sent to the parties on 14 March 2011. The Judgment is a substantial one and runs to 118 paragraphs spread over 92 pages.

[2]The appeal is against the Tribunal’s Judgment that the claims of direct race discrimination and victimisation (contrary to the Race Relations Act 1976 ) were well founded. There is no appeal from the Tribunal’s Judgment that the Claimant was both unfairly and wrongfully dismissed.

[3]The Appellant is represented by Mr Aidan O’Neill QC, and the Respondent by Mr Andrew Short QC and Mr Andrew Allen of counsel. We are grateful to counsel for their written and oral submissions. The factual background

[4]The Tribunal heard evidence and submissions over 18 days. It was provided with written submissions totalling 45 pages. It considered its decision in chambers for a further six days.

[5]The Tribunal made careful findings of fact at paragraphs 12.1‑12.213 (with some additional findings of fact made at paragraphs 53 onwards).

[6]In summary, the Employment Tribunal made findings as follows:(a) There had been overspends in 2007 of £1.4 million in the Medical Services Division and of £888,000 in the Surgical Services Division. Although Gill Heaton (Deputy Chief Executive and Executive Director) increased her one to one meetings with the relevant Divisional Directors (both of whom were white British) she took no further action against them, did not tell them that their jobs were in jeopardy, did not state that their positions were untenable and did not invoke the capability procedure (paragraphs 12.18‑12.30);

(b) In contrast, Gill Heaton did tell the Claimant that his job was in jeopardy (paragraph 12.52) and did so before any one to one meetings had been held (paragraph 96); did tell him that his position was untenable (paragraph 12.82) and not retrievable (paragraph 12.83) and passed the matter to HR to initiate the formal capability procedure (paragraph 12.88). Ms Heaton had, “run roughshod through the Trust’s established Capability procedures” (paragraph 63.18);

(c) Gill Heaton had not provided a cogent or satisfactory explanation for the difference in her treatment of the Claimant and of the two white Divisional Directors nor for why her treatment of the Claimant had not been in accordance with those capability procedures (paragraph 96);

(d) The Claimant had expressed a reluctance to co-operate with the capability procedure but that when a meeting was arranged (for 12 June 2007) he reluctantly agreed to attend, although in the event the meeting was postponed with the agreement of both parties (paragraph 57). Thereafter the procedure was held in abeyance pending the negotiation of a compromise agreement and no further meetings were arranged. Neither the Claimant nor his representative had not been told that disciplinary action could be taken if the Claimant did not attend any such meetings (see generally at paragraphs 12.94‑12.104);

(e) On Friday, 6 June 2007 the Claimant submitted a grievance complaining, amongst other things, that Gill Heaton had unfairly discriminated against him on the grounds of his race (paragraph 12.108);

(f) On Tuesday, 10 June 2007 Mr Welsh (Director of Human and Corporate Resources) responded stating, amongst other things, that serious concerns had arisen in relation to the Claimant’s performance so that an investigation and a hearing would take place to determine whether the Trust had the necessary trust and confidence in the Claimant (paragraph 12.109);

(g) On 17 July 2007 the Claimant (who was and remained on sick leave) was suspended, purportedly under but in breach of the Trust’s Disciplinary Procedure for breach of confidentiality (paragraph 12.110);

(h) On 30 July 2007 the Claimant invoked the Trust’s Fairness at Work policy complaining of unfair treatment and the inequitable application of standards possibly on the grounds of race (paragraph 12.124);

(i) On 2 August 2007 Mr Welsh wrote to the Claimant to inform him that an investigation was to commence under the Trust’s Disciplinary Procedure into allegations of breach of confidentiality and loss of trust and confidence;

(j) There was no fair and reasonable investigation into the allegations of misconduct (paragraph 66.2) – instead, the decision to dismiss had been predetermined and the lengthy procedure was a sham (paragraph 63.19);

(k) On 1 May 2008 the Claimant was summarily dismissed. The dismissing officer (Mr Readman) gave confused and unsatisfactory evidence as to the reason for the dismissal (paragraph 12.172) and did not hold the honest and genuine belief that the Claimant was guilty of acts of misconduct or poor performance that justified summary dismissal (paragraph 60);

(l) The various investigations into the Claimant’s grievance were cursory and did not investigate whether the application of the capability and disciplinary procedures had been discriminatory (paragraphs 12.141, 12.188 and 77.14‑77.18);

(m) The available statistics showed that employees with a Caribbean African or other black background accounted for: (1) 3-5% of those employed but 29.2% of those dismissed after 2003 (paragraph 12.213 and EAT bundle 184A), (2) 4.9% of those employed but 24.4% of those dismissed in 2005/6 [1] (paragraph 12.211 and EAT bundle 218), and (3) 3% of those employed but 22.1% of those dismissed in 2007/8 (paragraph 12.212 and EAT bundle 363); [2]

(n) The Trust had not responded to these statistics satisfactorily – although it had been alerted to the potential problem two or three years earlier, it had done nothing about it (paragraphs 77.9‑77.12). Mr Welsh had been content to put forward assumptions unsupported by any evidence or investigation (paragraphs 12.91 and 77.10). The Employment Tribunal’s conclusions

[7]The Tribunal directed itself as to the law at paragraphs 13‑53. Paragraphs 31‑53 deal with race discrimination and victimisation. Comparators are dealt with at paragraphs 31 (for race discrimination) and 33 (in respect of victimisation). The burden of proof is dealt with at paragraphs 40‑48 (for race discrimination) and 49 and 52 (in respect of victimisation). The Tribunal directed itself properly, and those self‑directions contain no error of law. Save for the application of King v Great Britain-China Centre

[1992] ICR 516

to a victimisation claim the Appellant does not suggest that there was any misdirection of law. Indeed, Mr O’Neill did not argue this point.

[8]The Tribunal sets out its conclusion on the claims at paragraphs 54 onwards. Unfair and wrongful dismissal are dealt with at paragraphs 54‑70. The Tribunal noted the unsatisfactory nature of the Trust’s evidence as to the reason for the Claimant’s dismissal. It found that the disciplinary procedure was a sham, and there was no honest and genuine belief in the reported grounds for the Claimant’s dismissal. We have noted that there is no appeal from these findings or the conclusion.

[9]The Tribunal sets out its conclusions as to race discrimination at paragraphs 74‑117, and those as to victimisation at paragraphs 108‑118. The burden of proof in discrimination claims

[10]The relevant law is contained in the revised Barton v Investec Securities Ltd

[2003] ICR 1205

, guidance as endorsed and amended in Igen v Wong

[2005] ICR 931

and as further explained in Madarassy v Nomura International PLC

[2007] ICR 867

[11]Stage 1 of the two‑stage approach: insofar as is relevant to this appeal, paragraphs (1)‑(9) of the revised Barton guidelines provide as follows:

“(1) Pursuant to s.63A of the SDA, it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part II […]. These are referred to below as ‘such facts’. (2) If the claimant does not prove such facts he or she will fail. (3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. […] (4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. (5) It is important to note the word ‘could’ in s.63A(2). At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary facts could be drawn from them. […] (9) Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent.”

[12]Further guidance was given in Madarassy as to the proper approach at stage 1. Mummery LJ gave the only Judgment. He said:

“56. The court in Igen v Wong expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the tribunal could conclude that the respondent ‘could have’ committed an unlawful act of sex discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination. 57. ‘Could conclude’ in section 63A(2) must mean that ‘a reasonable tribunal could properly conclude’ from all the evidence before it. This would include evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint. Subject only to the statutory ‘absence of an adequate explanation’ at this stage (which I shall discuss later), the tribunal would need to consider all the evidence relevant to the discrimination complaint; for example, evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the complainant were of like with like as required by section 5(3) of the 1975 Act; and available evidence of the reasons for the differential treatment. 58. The absence of an adequate explanation for differential treatment of the complainant is not, however, relevant to whether there is a prima facie case of discrimination by the respondent. The absence of an adequate explanation only becomes relevant if a prima facie case is proved by the complainant. […]”

[13]Stage 2 of the two‑stage approach: insofar as is material, the revised Barton guidelines state:

“(9) Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent. (10) It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act. (11) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since ‘no discrimination whatsoever’ is compatible with the Burden of Proof Directive. (12) That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question. (13) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof. […]”

[14]In Madarassy , Mummery LJ summarised stage 2 as follows:

“58. The consideration of the tribunal then moves to the second stage. The burden is on the respondent to prove that he has not committed an act of unlawful discrimination. He may prove this by an adequate non‑discriminatory explanation of the treatment of the complainant. If he does not, the tribunal must uphold the discrimination claim.”

[15]The Tribunal expressly directed itself in accordance with these authorities at paragraph 43.

[16]It is also apparent that the Tribunal properly addressed stage 1 at paragraphs 75‑79, finding that the burden had passed to the Respondent given all of the evidence (and in particular that set out at paragraph 77). Once the burden had passed, the Tribunal considered the explanation put forward by the Trust and rejected it at paragraphs 81‑104. As a consequence, the Tribunal upheld the claim of race discrimination as it was bound to do. The Trust has not challenged the Tribunal’s rejection of the Trust’s explanations at stage 2. The Notice of Appeal

[17]The Notice of Appeal contains four grounds of appeal, but the fourth ground of appeal, relating to misdirection on the burden of proof in relation to the victimisation claim, has now been withdrawn. We take each ground of appeal in turn.

(a) of the Race Relations Act 1976

[18]This ground of appeal is an attack on the Tribunal’s construction of a hypothetical comparator. Mr O’Neill criticises the Tribunal’s findings at paragraph 76 of its Reasons, where it said this:

“76. There is no actual comparator. No other Clinical Head of Division has declared a loss of confidence in the Divisional Director. No other Divisional Director has been told that their position was untenable, not sustainable. No other Divisional Director has been started on the Formal Capability Procedure. No other Divisional Director has been suspended or summarily dismissed. The Claimant is the only and first black Divisional Director that has been treated unreasonably and unfairly. We have therefore constructed a hypothetical comparator. We are satisfied that the treatment of the Claimant was so unfair, so contrary to the Respondent’s own procedures, that the Respondent, in treating the Claimant in this way, did treat the Claimant less favourably than the Respondent would have treated a hypothetical white comparator.”

[19]Mr O’Neill submits that the Tribunal should have focussed at this stage on what the Claimant did, not (as it does in paragraph 75) on how the Appellant treated him. Having established a comparator in the same “relevant circumstances” in terms of the job done by him and the manner in which he carried it out, the issue to which the Tribunal should have then directed itself is whether or not a person who was not black would have been treated in the same way by the Respondent employer (see the comments of Browne‑Wilkinson LJ in Glasgow City Council v Zafar

[1998] ICR 120

at 124A‑E).

[20]Mr Short submits that the Tribunal correctly set out the legal framework at paragraph 31 of its Reasons. It constructed a hypothetical comparator with the same key characteristics, and there is sufficient material to show that the comparator would have been treated more favourably. Discussion

[21]The use of a hypothetical comparator raises three questions:(a) What are the attributes of the comparator?

(b) Would such a comparator have been treated differently?

[22]The Tribunal addresses each of these questions at paragraphs 75 - 77. The Tribunal notes the most important of the characteristics of an appropriate comparator at the first two bullet points of paragraph 75, namely that it would be someone about whose performance and capability the Clinical Head of Division and Gill Heaton had genuine concerns.

[23]The Tribunal then goes on to consider (at paragraph 75) how the Claimant was treated and asks itself (at paragraph 76) if a hypothetical white comparator would have been treated in the same way. It finds that he would not have been treated in that way. It is apparent that the Tribunal has reached this conclusion in part by comparing the treatment of the Claimant with that of the other Divisional Directors. Comparing the treatment of those in non‑identical but not wholly dissimilar cases is a permissible means of judging how a hypothetical comparator would have been treated (see Chief Constable of West Yorkshire v Vento

[2001] IRLR 124

per Lindsay J at paragraph 7).

[24]Furthermore, although the conclusion is given at paragraph 76, it is apparent that the reasoning for that finding includes paragraph 77, where the Tribunal explain why they consider that they could properly conclude that the Claimant’s treatment was on the grounds of his colour (from which it would also follow that a hypothetical white comparator would have been treated differently). There is no error of law.

[25]The courts have repeatedly observed that it can be difficult and artificial to separate the question of how a hypothetical comparator would have been treated with that of the reason for the treatment (see Nicholls LJ in Shamoon v Chief Constable of the RUC

[2003] ICR 337

at paragraphs 8‑11 and Brown v London Borough of Croydon [2005]

UKEAT/0672/05

per Elias J at paragraphs 22‑27 approved by the Court of Appeal at IRLR 259 at paragraphs 26 and 40).

[26]As such, it is unsurprising and unobjectionable that the questions are entwined in the Tribunal’s decision and that the principal focus was on the last of them: was colour the reason for the treatment of the Claimant? The Tribunal was entitled to answer that question in the affirmative at stage 1 and to call for an explanation from the Trust. The complaint that the Tribunal “makes the very mistake that the House of Lords warned against in […] Zafar ,” can only be sustained by focussing exclusively upon paragraph 76 whilst ignoring the contents of paragraph 77. The fact that the complaint has been made underlines the danger of attaching great weight to particular sentences in isolation rather than reading the decision as a whole. The Tribunal had directed themselves in accordance with Zafar and The Law Society v Bahl

[2004] IRLR 799

at paragraph 52. They applied that direction at paragraphs 75‑79. They did not find the burden to have passed to the Respondent simply on the basis of the unreasonable treatment of the Claimant, but also on the basis of the contrasting treatment of the white Divisional Directors, the worrying statistics and unsatisfactory response of the Trust to those statistics and the Trust’s unsatisfactory response to a grievance about race discrimination. Given the findings of primary fact, the Tribunal was (at the very lowest) entitled to decide that it could draw the appropriate inference so as to find stage 1 satisfied and to call for an explanation from the Trust. The Tribunal did not move automatically to stage 2 just because there was a hypothetical comparator, as the Tribunal had done in London Borough of Camden v Miah

[2009] UKEAT 0031/08

[27]Furthermore, as is made clear in Shamoon and Brown , it is not always necessary for a Tribunal to deal with “arid” questions as to the characteristics or treatment of hypothetical comparators when those questions are sufficiently answered by identifying the reason for the treatment. These decisions suggest that, in an appropriate case, a Tribunal will not err by going straight to stage 2 and considering the explanation of the Trust (as indeed the Trust urged the Tribunal to do in this case; see paragraph 105). In this case, the Tribunal(a) only called for an explanation from the Trust after they had identified the additional racial factors at paragraph 77 and

(b) rejected the explanation then given by the Trust. The Trust was not prejudiced by the Tribunal taking that approach. Given that the Tribunal’s approach to identifying the reason for the treatment was not flawed, any error in the identification of characteristics of a hypothetical comparator does not undermine the decision as a whole.

(a) of the Race Relations Act 1976

[28]Mr O’Neill submits that the Tribunal failed to direct itself properly on the issue of establishing the reason why the Claimant was treated in the manner complained of, contrary to the guidance in Shamoon at paragraph 11 per Nicholls LJ. He also relies on Bahl at paragraph 104 per Peter Gibson LJ. Mr O’Neill also submits that the Tribunal failed to take account of all potentially non‑discriminatory factors when reaching its decision, and distinguished between unreasonable conduct that rendered the dismissal unfair and discriminatory treatment.

[29]Mr Short submits that the Tribunal correctly set out the legal framework at paragraphs 40‑47 and 51‑52 of its Reasons. In the Tribunal’s findings of fact there are a number of elements which permitted it to infer that the less favourable treatment was on racial grounds, and in particular:(a) The difference in treatment of the white Divisional Directors, Karen England and Jill Alexander (paragraphs 12.7 and 96);

(b) The statistics demonstrating a high dismissal rate of black employees (paragraphs 12.194, 12.210, 77.9‑77.12);

(d) The “swift” negative response to the Claimant’s allegations of race discrimination (paragraphs 12.108, 12.109 and 100); and

(e) The cursory and unreasonable manner in which the Claimant’s complaints of race discrimination were treated (paragraph 114). Discussion

[30]The Tribunal properly directed itself as to the law at paragraphs 40‑47.

[31]At paragraph 77 the Tribunal asks itself the correct question, namely whether the Claimant had proven facts from which the Tribunal could properly conclude that the treatment was on the grounds of his colour. The Tribunal make clear that they take the evidence as a whole into account when deciding that question.

[32]In particular, they do not limit their consideration to the evidence adduced by the Claimant or to those matters that supported the conclusion that the treatment was on the grounds of colour (see in particular sub‑paragraphs 77.1‑77.6). Having considered the whole of the evidence, they were entitled to take the view that the Claimant had proven such facts and that the burden had passed to the Trust to provide an explanation for the treatment.

[33]Given the note of caution expressed by May LJ in Noone v North West Thames Regional Health Authority

[1988] ICR 813

and those matters set out at paragraphs 77.8‑77.18, the Trust could not show (and seems not to have alleged) that the Tribunal reached a perverse decision in so finding.

[34]Insofar as ground 2 contains a “reasons” challenge, the decision is Meek v City of Birmingham District Council

[1987] IRLR 250

compliant. The Trust knows why it lost. The extensive and detailed findings of primary fact show that:(a) it treated the Claimant extremely unreasonably;

(b) the treatment contrasted with its treatment of white British colleagues who were in a similar position;

(c) the treatment took place against a background in which the Trust was unconcerned by statistics that showed black employees were many times more likely to be dismissed than their white colleagues and reacted negatively to complaints of race discrimination; and that

(d) the Trust was unable to explain why it had treated the Claimant in that unreasonable fashion.

[35]In his skeleton argument and oral submissions, Mr O’Neill made much of the Tribunal’s alleged abuse of the statistical material in front of it. Mr Short submitted that there was no reference in the Notice of Appeal to statistical evidence, and Mr O’Neill was attempting to re‑argue the issue before the Employment Appeal Tribunal; that this case is based on colour not race, and the Employment Tribunal was therefore correct to amalgamate the categories of “Caribbean” and “African”. It was entitled to put some reliance on the statistics put before it. The important point is that Mr Welsh did not examine the figures. He had conducted no investigation into them, but made assumptions. We do not think that the Tribunal’s approach to the statistical evidence before it undermines its conclusion on the issue of treatment on racial grounds. Ground 3: Insufficient reasons to establish the finding of victimisation

[36]Mr O’Neill submits that the Tribunal erred in failing to find an actual or hypothetical comparator in the same position as the Claimant. Again, he criticises the approach taken by the Tribunal at paragraphs 109‑110, when there were genuine concerns about the Claimant’s capability (paragraphs 116‑117).

[37]Mr Short submits that the Employment Tribunal was entitled to remark upon the nature of the reaction to the protected act, namely the race discrimination grievance made on 6 July 2007. It was entitled to draw the conclusion it did. Discussion

[38]The Tribunal properly direct themselves as to the substantive law (rather than the burden of proof) at paragraphs 32 - 33.

[39]The Tribunal identify the proper hypothetical comparator at paragraph 109 as someone who had not done the protected act.

[40]The decision makes clear why the Trust lost and is Meek compliant. The Trust asserted that the reason for the treatment was the Trust’s concerns as to the Claimant’s performance. However:(a) It was unable to provide any satisfactory explanation for the fact that it decided to instigate disciplinary proceedings immediately after the Claimant lodged his grievance;

(b) The disciplinary process was a sham;

(d) The Trust did not have an honest and genuine belief in the purported reasons for dismissal.

[41]Given these unchallenged findings of fact, the hostility shown by the Trust to the fact of the grievances, which, it was asserted, had been made in bad faith, and the otherwise cursory way in which the Trust responded to those grievances, the Tribunal was entitled to find as a fact at paragraph 116 that:

“Once the race discrimination grievance was put in […] the Trust closed ranks around Gill Heaton and commenced disciplinary action against the claimant to secure his removal from office. There were genuine concerns about the claimant’s capability but, on balance, we are satisfied that the protected act was a significant influence on the outcome.”

[42]The fact that the disciplinary proceedings did follow shortly (or, rather, immediately) after the lodging of the grievance does not mean that the latter necessarily caused the former. However, when the Trust was unable satisfactorily to intimate and then commence disciplinary proceedings, it is not surprising that an adverse inference was drawn leading to the finding of fact at paragraph 116. At the lowest, the Tribunal was entitled to draw that inference and make that finding of fact.

[43]In essence, the Trust is complaining of the Tribunal’s findings of fact and inference. There is no error of law. Conclusion

[44]For these reasons, the appeal is dismissed. [1] Mr Mills (Clinical Head of Division at the Manchester Royal Eye Hospital and who heard the final appeal on the Claimant’s grievance) said that there was no disparity between the rate at which white British and black and African Caribbean employees were called to disciplinary hearings – the disparity was in the rate of dismissal (paragraph 12.194) – although he had not identified this at the time and had based his decision and the information he subsequently gave the Disciplinary Appeal Panel on an incorrect interpretation of the statistics. [2] The 2006/7 Annual Equality and Diversity Report does not contain statistics for ethnicity of staff dismissed.