"…amounted to unlawful treatment under the 1976 Act, being, depending on the particular complaint, said to be one or more of: direct discrimination, victimization, or (after the relevant provision came into force) harassment."
"25. …the question in essence was why it was that one or other or all of the Clerks was not dismissed, or more seriously disciplined than they were. In the course of its discussion, the Tribunal took the view that the executive committee of Chambers, in taking a decision not to follow Mr Gibson's recommendation that two Clerks should have been dismissed, were motivated in part by a desire if possible to secure the outcome that there should be no practical harm to the business of chambers. In short, that the Clerks were too good at their job to be lost to chambers, and that this was a commercial decision and not one in any sense based on race. 26. However, the words "in part" leave room for some other consideration. At paragraph 607 dealing with one of the episodes, the Tribunal thought that a concern on the part of the senior manager and the Head of Chambers was for the reputation of the Clerks' room as a whole. In context, Mr Green has submitted, that may and should properly be understood as a reference to the Clerks' room being identified as racist, and chambers having tolerated having a racist Clerks' room within its midst. If so, the argument goes, the refusal to discipline by dismissal was a decision which arguably was reached because in part a disciplinary dismissal would recognise to the world that Chambers had tolerated, and had not effectively prevented racism within its clerks' room, and a decision to decline to do so because of the fear of identification as being or having been implicated in racism was to act on racial grounds. Conclusion 27. If that is the proper interpretation of it, then it is arguable that the reputational aspects of chambers, to which there are other references in the paragraphs to which I have referred, may have a link with race; and it is arguable, perhaps, that the conclusion which the Tribunal came to at paragraph 614, in which concerns on the one hand were balanced by explanations on the other, was not one to which the Tribunal might have been entitled to come had it appreciated, as it ought to have done on this argument, that part of the reasoning had regard to issues of race."
"(8) Failure to prevent, abate or condemn the racist conduct of the Claimant's clerks Mr Peck, Mr Sabini and Mr Purse, before or after their racist outbursts in 2000 (all three), 2004 (Mr Sabini) and 2006 (Mr Sabini). (9) Failure to provide or require Equal Opportunities Training for the clerks from the outset of their employment onwards, monitor their conduct and performance or to appoint an Equal Opportunities Member of Chambers Officer and/or Committee in Chambers. (10) Appointing Mr Peck, Mr Sabini and Mr Purse to clerk the Claimant."
"2. The judgment given on18 May 2011 , in the light of the Grounds of Appeal advanced to the court, identifies the appealable point. 3. The context was one in which the issue was one of harassment/detriment being caused to the Appellant by the continued presence in the clerks' room of those whom she regarded as ill-disposed toward her on racial grounds. The argument (put briefly) was that the "guilty" clerks had to be removed or sufficiently disciplined by the Respondents to prevent that effect. The decision to retain the clerks, and thereby expose the Appellant to continuing detriment/harassment, was said to be reached on (or, rather, partly on) racial grounds. It was this point which was held arguable. As Moore-Bick LJ said in the C.A.: "26. In my view it is not arguable that the Employment Tribunal disregarded that matter, but it was for the tribunal to decide in the light of all the evidence whether the continued employment of the clerks amounted to less favourable treatment of the applicant or created a hostile working environment for her. However, this was the one point on which the judge was persuaded that there was a sufficiently arguable case to go to a full hearing. He identified the fact that the tribunal had found that the decision to retain the clerks was in part a desire to retain a strong team in the clerks' room, which suggested that other motives may also have been at work. ""
"Failure to prevent, abate or condemn the racist conduct of the Claimant's clerks, Mr Peck, Mr Sabini and Mr Purse before or after their racist outbursts in 2000 (all three), 2004 (Mr Sabini) and 2006 (Mr Sabini)."
"222. After the answer-phone message had been heard Mr Peck comment that Ms P was bright and had done pretty well, but he then mimicked her Caribbean accent and made the remark to his colleagues: "
"Is she that educated?" from someone later identified as being Mr Purse. Mr Peck responded: "
"In particular Mr Peck had accepted that he may have said "
"…was not to accept that recommendation but to recommend that all three clerks should be given written warnings, but also given appropriate racial awareness training. However the EC left the final decision to Mr Fenwick, as Head of Chambers."
"We were satisfied that she was given the same essential details including the envisaged sanctions, as were the other two; and that Mr Fenwick allowed her the same general opportunity to make any observations on clerking arrangements, sanctions, or any other aspect, that he allowed Mr Asif."
"There was no suggestion that the Claimant had advocated the dismissal of any of the three clerks, and we did not so find; nor did we find that, when Mr Fenwick met with her, she asked that Mr Peck cease clerking her."
"Mr Fenwick's considered decision was that Messrs Sabini and Peck should each receive a final written warning and Mr Purse a written warning. All of them as well as the other members of the administrative staff, were also given diversity training."
"cover your ears" and then said "greedy cunt"
"She said she concluded that although his comment and tone could be interpreted as exhibiting a dislike or feeling of contempt towards Mr Asif or members of chambers generally, this was not a reflection of his attitude but was a reaction to a situation in which he felt criticised."
"…he was not suggesting that there was a cultural problem, merely that there might be, that the executive committee needed to know about it and Ms Wiseman needed to be vigilant to ensure that standards were maintained, particularly when Ms Wiseman was not there."
"His account opened and closed with an unreserved and wholehearted apology and he described his behaviour during the incident as truly appalling and disgraceful and said that he was absolutely disgusted with himself."
"…it might be argued that, for example, by not dismissing Mr Peck and Mr Sabini, Mr Fenwick took a decision which did have some impact on the Claimant, because she continued to be in a clerking relationship with Mr Peck in particular, which would have ended had a decision to dismiss him been taken. Ultimately we concluded that it is not sufficient, that it can be said merely to have some impact on them of that sort. There has to be some factor operating on the mind of the decision-maker, whether consciously or unconsciously, which relates to the person alleging detriment, or at least a specific defined group of which she is a member. That feature was absent in this case and therefore we found that none of the decisions relating to the handling of these episodes constituted detrimental treatment of the Claimant."
"592. It was plain from various evidence that we had from a number of witnesses that Messrs Peck and Sabini were widely regarded among members at this time as very good and able clerks who had served chambers outstandingly well. By way of example Mr Stuart-Smith told the Tribunal, when asked, that his impression was that those who knew Mr Sabini well would have regarded him as one of the best clerks at that sort of level that one could hope to have. We had no doubt that (looking at the matter, for the moment, entirely in isolation from what view may or may not have been taken of the incident itself) a significant number of members would have regarded it as a great loss if either one and certainly both of them at the same time, were to go. 593. It seemed to us that the EC in particular were motivated in part by a desire if possible to secure that the outcome of the practical harm to chambers' business, that they considered would be incurred by the loss of Messrs Peck and/or Sabini, be avoided. We drew this inference from a number of aspects including, the decision of the EC as such not to follow the recommendation of Mr Gibson, the failure to request a formal record of Mr Gibson's recommendation or to minute that important EC meeting, and the timing of the consultation of the BME members of chambers, occurring as it did only after the EC had reached their view, and notwithstanding that the final decision rested with Mr Fenwick."
"Would have appreciated that it would be enormously useful to the task with which he and the EC were faced, to know [Ms P's] views and intentions."
"It seemed to us that, going into that meeting with Ms P and her husband, Mr Fenwick could have assumed that her intentions as to possible litigation or criminal proceedings might affect the legal or representational risk to which chambers might be exposed by one decision or another in the disciplinary process…"
"598. Our overall conclusion was that a driving consideration for the EC was not to lose the services of either or both of Mr Peck and Mr Sabini, if practically possible. As matters did in fact unfold, the outcome of the meeting with Ms P, and of those with the BME members, which followed the EC meeting, were regarded as leaving that possibility open. As Mr Fenwick was left to make the final decision, it appears that it would, strictly, have been open to him to decide to dismiss Mr Peck and/or Mr Sabini. However, it seemed that, realistically, there would have been a heavy implicit pressure on him at this point, to follow the EC's recommendation, unless subsequent events precluded him from doing so, or obviously dictated a reappraisal; but it appeared to him that they did not. 599. Ultimately we concluded that there was not the basis to infer that Mr Fenwick, in his role in this matter, did not view the conduct of Mr Peck and his colleagues with the degree of seriousness and disapproval that he was adamant in evidence to us that the did. Although Ms Wiseman conducted the investigation with Mr Gibson and co-authored the preliminary report, she did not participate in making any recommendation to the EC. Although there is some suggestion in the evidence that she flagged up the alternative to dismissal at their meeting, we did not feel able to draw any particular inference about the degree of seriousness or otherwise with which she for her part regarded the underlying episode."
"Mr Fenwick's evidence was that he had reached the conclusion that this was an incident of general vulgar abuse, but not race discrimination."
"The subsequent round of emails reflected an attempt by Mr Fenwick diplomatically to defuse that situation."
"In summary, to the extent that there was some management with a view to 'containing' Mr Asif's reaction to this episode, the driving force seems to have been concern on the part of Ms Wiseman in relation to which she received the support of Mr Fenwick, to contain the impact on the reputation of the clerks' room as a whole, and the perceived attack upon the competence of her management."
"612. Looking back over these episodes as whole, three broad themes emerge. The first is that Ms Wiseman was very powerfully driven by her concerns to preserve, and develop, what she, and many members of chambers, regarded as an outstanding clerking team. She was also fiercely defensive of her own management of the team; and her natural instinct was to defend them. In the high store she set by the clerking team it would appear she had consistently strong support from successive Heads of Chambers and the EC. The second was a related desire on the part of chambers' management generally to avoid what was perceived to be the severe damage that might result from dismissals, in the wake of such episodes, rather than actions short of dismissal, or, where deemed unavoidably necessary, what might be called managed departures. Such instincts appeared to prevail even in relation to Mr Brooks-Wilkin, a junior member of staff who was, if anything, according to Ms Wiseman's account, regarded as a difficult employee who had already outlived his usefulness. 613. Ms Brown put it bluntly to more than one of the Respondents in cross-examination that they were apologizing for racism, an allegation that was fervently rejected. We considered it indeed to be wide of the mark. The Tribunal was mindful that plainly, on each occasion, actions were taken. Warnings were issued, statements were made and training was given. The Tribunal was also mindful that there are practical limits to the degree to which individual behaviour from day to day and hour to hour can be supervised or monitored. The third theme, consistently with our appraisal of chambers' management's work in the area of diversity practices generally, is that the level of awareness of these issues, and the standards of handling them, were not in accordance with the highest standards of modern thinking and practice; but nor were chambers' management indifferent to, or purely neglectful of such matters. 614. What we had to decide, to come back to the point of departure that led to this assessment, was whether, if the handling of these particular episodes was capable, conceptually, of amounting to detrimental treatment of the Claimant, it was in fact on grounds of race. Whilst we had registered some real concerns in particular in relation to Ms Wiseman's judgment in the handling of certain aspects of these matters, ultimately we were satisfied that the explanations for the conduct both of her and Messrs Fenwick and Stewart in relation to these matters, did not include a failure to act more robustly on grounds of race, in relation to the Claimant, or BME members as a group (nor, we add, though these events almost entirely preceded them, by reference to the Claimant's protected acts, or to any connection with her disability)."
"Failure to provide or require Equal Opportunities Training for the clerks from the outset of their employment onwards, monitor their conduct and performance or to appoint an Equal Opportunities Member of Chambers Officer and/or Committee in Chambers."
"Complaint 9 embodied a general criticism of chambers management, in the shape of successive Heads of Chambers, Ms Wiseman and the EC, in terms of their approach and alleged lack of sufficient rigour and proactivity in relation to equal opportunities and diversity issues in general and monitoring and associated systems in particular. Having regard to all our previous findings and conclusions, and whilst the Tribunal did consider that chambers' management's handling of these matters over the period fell short of the standards of best practice in this area, we were satisfied that the explanation for the way in which these matters were overall handled was not in any sense targeted at the Claimant, or BME members, and did not include any element of detrimental treatment of the Claimant on grounds of race, related to disability or victimisation."
"Turning to complaint 10, we note that this was specifically about the decisions to appoint each of Messrs Peck, Purse and Sabini to clerk the Claimant. In light of our findings of fact we were satisfied that these were on each occasion the result of ordinary administrative re-organisation and re-shuffling of clerking arrangements from time to time. They were not confined in their impact to the Claimant or BME members. There was no basis to conclude that she was, consciously or unconsciously, given any of these clerks as an act of detrimental treatment on grounds of race, related to her disability or by way of victimisation. We in fact could find no occasion on which the Claimant specifically asked that one of these individuals cease clerking her and had her request refused. The only occasion in respect of which we were able to find a specific request was, following the issue of these proceedings, when she asked in 2009 no longer to be clerked by Mr Purse, and he was replaced by Mr Barrass."
"a 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."
"some factor operating on the mind of the decision-maker, whether consciously or unconsciously, which relates to the person alleging detriment."
"It seemed to us that, going into that meeting with Ms P and her husband, Mr Fenwick could have assumed that her intentions as to possible litigation or criminal proceedings might affect the legal or reputational risk to which chambers might be exposed by one decision or another in the disciplinary process: and that he would also have had some general appreciation and awareness of the high esteem in which the clerks were widely held."
"51. In the light of the Tribunal's own findings, therefore, the approach which appears to have permeated dealings with these issues was one by which the reputational damage from the clerks' room being identified as racist in any disciplinary proceedings (and possibly resulting dismissal and potential ET claims), mitigated against taking such steps."
"…treatment in respect of which there is no actual comparator a better approach to determining whether there has been less favourable treatment on prescribed grounds is often not to dwell first in isolation on the hypothetical comparator, but to ask the crucial question: 'why did the treatment occur?"
"In my opinion the state of mind of JFS, the Chief Rabbi and the OCR are all irrelevant to the determination of the critical question under section I(I)(a). I agree with Lord Mance JSC that there are two ways in which direct discrimination can be established. The first is where, whatever the motive and whatever the state of mind of the alleged discriminator, the decision or action was taken on a ground that was inherently racial and the second is where the decision or action was taken on a ground that was subjectively racial. Until now this distinction has not perhaps been as clearly identified in the authorities as it should be."
"The restriction therefore discriminates against the respondents because of their sexual orientation just as the criterion at the swimming baths discriminated against Mr James because of his sex. For this reason alone it is directly discriminatory. Put another way the criterion at the heart of the restriction, that the couple should be married is necessarily linked to the characteristic of a heterosexual orientation. There has in my view been direct discrimination by virtue of reg 3(1) and (3)(a) together with reg 4 – less favourable treatment on grounds of sexual orientation."
"In summary, to the extent that there was some management with a view to "containing"
"…what had been done nevertheless fell short of the standards of best modern practice in this area, for example in relation to the frequency and coverage of training, and the definition and profile of the equalities officer role."
"What we have had to decide was whether the reason why this state of affairs existed, involved discriminatory grounds or other unlawful treatment as claimed."
"…a 'detriment' does not necessarily have to involve some physical or economic consequence: it is to be determined by reference to the reasonable view that the recipient of the treatment would or might take of it."
"As May LJ put it in De Souza v Automobile Association[1986] ICR 514 , 5229, 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."
"There has to be some factor operating on the mind of the decision-maker, whether consciously or unconsciously, which relates to the person alleging detriment, or at least a specific defined groups of which she is a member. That feature was absent in this case and therefore we found that none of the decisions relating to the handling of these episodes constituted detrimental treatment of the Claimant."
"…it might be argued that, for example, by not dismissing Mr Peck and Mr Sabini, Mr Fenwick took a decision which did have some impact on the Claimant, because she continued to be in a clerking relationship with Mr Peck in particular, which would have ended had a decision to dismiss him being taken. Ultimately we concluded that it is not sufficient, in order for a decision to amount to detrimental treatment of an individual, that it can be said merely to have some impact on them of that sort."
"I accept that to demonstrate some effect on the claimant is sufficient to establish less favourable treatment…"
"…deliberated what, in light of our findings of fact, we thought we have learned from their handling of these various episodes, about the reasons for the actions of Mr Fenwick, Mr Stewart and Ms Wiseman."
"For there to be discrimination on racial grounds, or victimisation, the proscribed grounds do not have to be the sole or main reason for the treatment: …discrimination requires that racial grounds were a cause, the activating cause, a substantial and effective cause, a substantial reason, an important factor. No one phrase is obviously preferable to all others, although in the application of this legislation, legalistic phrases, as well as subtle distinctions, are better avoided so far as possible. If racial grounds or protected acts had a significant influence on the outcome, discrimination is made out. The introduction of the statutory burden of proof provisions has not altered that test, as such, and the "merely trivial" still falls below the threshold of unlawful treatment. We understood the terms "significant", "material" and "non-trivial" all to be directing us to the same test."
"We note that, in R v Governing Body of JFS[2010] IRLR 186 , Lord Phillips, the President of the Supreme Court, said, citing Nagarajan and earlier authorities, that "grounds" refers not to motive, but to the "factual criteria applied by the discriminator in reaching his decision" or "which influenced the discriminator to act as he did"."
"Direct discrimination can arise in one of two ways: because a decision or action was taken on a ground which was, however worthy or benign the motive, inherently racial within the meaning of section 1(1)(a), or because it was taken or undertaken for a reason which was subjectively racial: R v Birmingham City Council, Ex p Equal Opportunities Commission[1989] AC 1155 , 1194 C-D per Lord Goff of Chieveley, James v Eastleigh Borough Council[1990] 2 AC 751 , 772 B-G per Lord Goff, and Nagarajan v London Regional Transport[2000] 1 AC 501 , 511A, per Lord Nicholls of Birkenhead, and 520H-521B per Lord Steyn."
"I agree with Lord Mance JSC that there are two ways in which direct discrimination can be established. The first is where, whatever the motive and whatever the state of mind of the alleged discriminator, the decisions or action was taken on a ground that was inherently racial and the second is where the decision or action was taken on a ground that was subjectively racial."
"…that any employer treating this matter seriously would, after due investigation, and in light of the facts that emerged, have followed Mr Gibson's recommendation and dismissed Mr Peck and Mr Sabini."
"Ms P also conveyed to Mr Fenwick at that meeting that she did not wish to see the clerks concerned lose their jobs."
"There was no suggestion that the Claimant had advocated the dismissal of any of the three clerks, and we did not so find; nor did we find that, when Mr Fenwick met with her, she asked that Mr Peck cease clerking her."
"Mr Fenwick's considered decision was that Messrs Sabini and Peck should each receive a final written warning and Mr Purse a written warning. All of them, as well as the other members of the administrative staff, were also given diversity training."
"We had no doubt that (looking at the matter, for the moment, entirely in isolation from what view may or may not have been taken of the incident itself) a significant number of members of chambers would have regarded it as a great loss if either one, and certainly both of them at the same time, were to go."
"Specifically it was said that the aspect that particularly weighed with the EC and Mr Fenwick was the fact that Ms P had indicated that she did not want the clerks concerned dismissed; and that, having regard particularly to this aspect, together with the steps taken regarding equal opportunities training, the final outcome reflected that the whole episode was treated with the seriousness that it warranted."
"…realistically, there would have been a heavy implicit pressure on him at this point, to follow the EC's recommendations unless subsequent events precluded him from doing so, or obviously dictated a reappraisal; but it appeared to him that they did not."
"…satisfied that the explanations for the conduct both of [Ms Wiseman] and Messrs Fenwick and Stewart in relation to these matters did not include a failure to act more robustly on grounds of race."
"…whether the reason why this state of affairs existed, involved discriminatory grounds or other unlawful treatment as claimed."
"Positive efforts were made, and, in so far as, by modern best standards, there were shortcomings in what was implemented and achieved, the explanations for this were not antipathy, but to do with matters of lack of appreciation of the full extent of actions that such standards required, issues of resource and time, the fact that the matter was handled 'in-house', views taken about priority areas for action, given the profile of this particular set and so forth."