Kabemba v ISS Eaton Ltd & Anor (Sex Discrimination : Direct) [2012] UKEAT 0584_11_2610

EAT
Kabemba v ISS Eaton Ltd & Anor (Sex Discrimination : Direct)
[2012] UKEAT 0584_11_2610 · 2012-10-26
[1]The parties to these proceedings before the London Central Employment Tribunal are Mr Kabemba, Claimant, and ISS Easton Limited and ISS Facility Services, Respondents. An Employment Tribunal chaired by Employment Judge Mrs L S Walker heard the Claimant’s complaints of racial discrimination and unfair constructive dismissal over four days. Having done so, the Tribunal dismissed those claims by a judgment with reasons dated 14 July 2011.[2]Against that judgment the Claimant appealed. The appeal was set down for an all parties preliminary hearing which came before HHJ Serota QC and members on 11 April 2012. By an order seal dated 16 April 2012 the appeal was permitted to proceed to a full hearing on one issue, formulated at paragraph 1 of the Order in this way. “This appeal be set down for a full hearing solely on the issue as to whether or not the Employment Tribunal gave adequate and proper consideration to the allegation of race discrimination, including dismissal, in particular on the ground that the Employment Tribunal had confined its consideration to each specific allegation separately rather than considering the totality of the facts found to determine whether an inference of discrimination could be properly drawn.” The remaining grounds of appeal were dismissed.[3]As appears from the judgment given by Judge Serota on the date of hearing, see paragraph 3, the appeal against the finding of no constructive unfair dismissal was not pursued and does not form part of the appeal now before us. In short, this is a Qureshi point, see Qureshi v The Victoria University of Manchester [2001] ICR 863 , note Mummery P; approved by the Court of Appeal in Anya v University of Oxford [2001] ICR 847 . Did the Tribunal adopt an impermissibly fragmented approach to the factual complaints raised by the Claimant rather than standing back and looking at the cumulative effect of the facts found, see Qureshi page 875 G-H?[4]If we find that the Tribunal fell into error, then the question arises as to disposal of this appeal; a question to which we shall return. Background[5]The Claimant, who is black and of African origin commenced employment as a chef at the Mark Mason Hall in September 2004. In about August 2007 the catering function at the hall was contracted out to the Respondent and the Claimant’s employment then transferred to the Respondent under the provisions of the TUPE Regulations 2006 ; we are not concerned with the distinction between the two corporate Respondents. On 10 July 2009 he resigned from the employment in circumstances which he contended amounted to constructive dismissal. The Tribunal rejected that contention, based on their findings of fact in relation to incidents or combinations of incidents by the Claimant, see paragraph 50. The Respondents had not breached the implied term of trust and confidence; paragraph 53. The issues before the Employment Tribunal[6]At paragraph 3, the Tribunal refer to a series of events relied on by the Claimant as amounting to racial discrimination, set out principally in a document annexed to a case management discussion order. We called for that order, made by Employment Judge Tayler on 27 April 2010. Paragraph 6 of the annex sets out a number of incidents listed (a) to (n); a total of 14.[7]The Tribunal’s reasons set out their findings of fact under the incident headings listed in the CMD annex document, as amended during the course of the hearing. We summarise their findings of primary fact in this way; the Claimant’s managers, Messrs Godfrey and Riberio, did not bully the Claimant, it was he who was, from time to time, confrontational and they reacted accordingly. A remark by Mr Godfrey that, “You people cannot count” was not directed at the Claimant’s race or ethnicity but to the staff generally. When it came to the operation of the Respondent’s grievance procedure, engaged by the Claimant, by Ms Siddall-Collier, that exercise was poorly managed.[8]Having made their findings of fact in relation to the various allegations, the Tribunal expressed their conclusions on the race discrimination claim at paragraphs 45 to 46 thus:
“45. Nevertheless, we are satisfied that all of this (the grievance process) is poor management. There is nothing to suggest that it was motivated by race and in fact there is no evidence of any racial motivation whatsoever. It is quite clear that the Tribunal has to find something from which we could consider that there was a racial motivation and case law makes it clear that that has to be something with some evidential value in it from which we could conclude that there has been discrimination - the mere theoretical possibility is not sufficient. 46. That being the case, we then considered whether or not the burden of proof had shifted onto the Respondent to disprove the situation. Case law makes it clear that before we consider whether the burden of proof has shifted, we can take into account the Respondent’s explanation and we have as we made clear, we have taken into account the facts described by both parties and we are satisfied that the burden of proof did not shift to the Respondent. Had if shifted, again, we would be satisfied that the Respondent gave the Tribunal adequate explanations to justify that their conduct was on each occasion not done because of race, and therefore the race claim fails.”
The appeal[9]We turn first to the Qureshi point identified at the preliminary hearing. We accept the Tribunal has not, on the face of its reasons, plainly indicated that it has looked at the overall picture created by the facts as found in dismissing the complaint of racial discrimination. They do appear to have taken a fragmented approach without then putting all the pieces together. To that extent, the Claimant has identified an error of law.[10]The question then arises as to what we should do with the appeal. We canvassed three broad options in the course of argument;(1) allow the appeal and substitute a finding of unlawful racial discrimination on the basis that the Tribunal’s decision was plainly and unarguably wrong, see Dobie v Burns International Security Services [1984] ICR 812 . We should then remit the matter to the Employment Tribunal to determine remedy. This is the option favoured by Dr Vaidya on behalf of the Claimant;(2) dismiss the appeal on the basis that notwithstanding the error of law identified, the decision is plainly and unarguably correct, that is the course advocated by Mr Moon for the Respondents;(3) allow the appeal and remit the race discrimination complaint to the Employment Tribunal, either the same or a different Tribunal. Here Mr Moon adopts the first alternative; Dr Vaidya the second.[11]Having considered the arguments on both sides, we have concluded that option 2 is the appropriate course for the following reasons. Unlike Anya the Employment Tribunal has made all necessary primary findings of fact in this case. As to the conduct complaints, those findings favour the Respondent. In relation to the grievance process, the Tribunal found that the reason for the treatment complained of by the Claimant was poor management. It had nothing to do with the Claimant’s race.[12]Thus, looking at the factual matrix overall and answering Lord Nicholls reason why question posed in Shamoon [2003] ICR 337 , the reason for the Claimant’s treatment had nothing to do with his race so that the Tribunal was entitled to conclude (paragraph 46) that even if stage 1 of the test in Igen v Wong [2005] ICR931 is passed by the Claimant at stage 2 the Respondent has succeeded in proving an explanation which is wholly untainted by race. Specifically, in relation to the grievance process, unreasonable or incompetent management behaviour does not of itself amount to unlawful discrimination; see Glasgow City Council v Zafar [1998] ICR 120 .[13]We reached these conclusions without attempting to identify any racial motivation in the sense stated by the Tribunal at paragraph 45 of their reasons in concluding that stage 1 of Igen had not been passed. We acknowledge, of course, that racial discrimination may be unconscious or sub-conscious. It is not necessary to show conscious motivation before finding unlawful racial discrimination.[14]Finally, we bear in mind the approach commended by Jacobs LJ in Bournemouth University Higher Education Corporation v Buckland [2010] IRLR 445 at paragraphs 57 to 58. Since all the primary facts have been found by the Employment Tribunal, we should decide the point ourselves rather than remit the case thereby prolonging the matter for the parties and increasing costs. For these reasons, this appeal is dismissed.