Appeal No. UKEAT/0296/09/LA

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 26 January 2010

Before

THE HONOURABLE MR JUSTICE LANGSTAFF

PROFESSOR S R CORBY

MR B M WARMAN

DR D C ARHIN (APPELLANT)

ENFIELD PRIMARY CARE TRUST (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
DR D C ARHIN (The Appellant in Person)

For the Respondent
MS M MURPHY (of Counsel)

Instructed by:
Messrs Bevan Brittan LLP
Fleet Place House
2 Fleet Place
Holborn Viaduct
London
EC4M 7RF

PRACTICE AND PROCEDURE: Appellate Jurisdiction/Reasons/Burns-Barke

REDUNDANCY

UNFAIR DISMISSAL

RACE DISCRIMINATION

The employer was found not to have acted by reason of race when selecting one of two possible candidates for a post without giving the other any interview, but by "slotting in". "Slotting in" in these circumstances was, however, held to be unfair so as to found a finding of unfair dismissal. The reasons given by the Tribunal showed it had not clearly identified the requirements of the new post or the jobs actually being done by the Claimant and her comparator, without which the finding made (that the reason was not race, but mistake) appeared illogical. Appeal allowed with remission to a fresh tribunal.

1. This is an appeal against the Decision of an Employment Tribunal at Watford whose reasons were delivered on 23 January 2009. By those reasons, the Tribunal upheld the Claimant's complaint that she had been unfairly dismissed by her employer, rejected her complaint that she had been automatically dismissed, and rejected her complaint that she had been discriminated against on the grounds of race. This appeal is brought against the Tribunal's determination in respect of the latter matter only.

1. The Tribunal recorded the length of the hearing, perhaps a testament to the complexity of some of the issues. The Tribunal spent one and a half days pre reading and followed that by five and a half days of evidence and consideration.

1. The underlying facts were these. The Claimant (now the Appellant) had been employed by the Respondent as an assistant director of health improvement/consultant in public health medicine. The Tribunal records that there was a review of the services in public health and a reorganisation of the directorate in which the Claimant worked principally with a view to improving services but saving money. A consequence was that the Claimant's post became redundant. The Tribunal thought that that was a genuine redundancy. The Tribunal found that essentially four consultant posts were being reduced to two and that of the posts which the Claimant and another man, a white man, Mr Stewart, occupied there would thereafter be one post.

1. The Respondent employer decided to fill that one post by slotting in; that is, by providing that one of the post holders currently in post should simply move over to the new job. The other post holder would necessarily be made redundant subject only to the availability of alternative employment. It decided to do this without there being any form of competitive exercise in respect of which both the Claimant and Mr Stewart, for they were the two people concerned, could compete one against the other. It was part of the Claimant's case that she alone of the two held a medical qualification and had been highly qualified for longer than her comparator, Mr Stewart, though it has to be said that both her CV and that of Mr Stewart, which the Tribunal saw and we have seen, demonstrate people both of whom are of considerable ability.

1. The Employment Tribunal decided that the Claimant should have been considered for slotting in. They took the view that she had wrongly been excluded from taking part in the competitive exercise which, had the employer's policy been properly applied, should have been adopted. It found that although the employer had made all reasonable efforts to assist the Claimant in obtaining alternative employment, nonetheless the findings that she had been unfairly denied the opportunity of taking part in a competitive exercise for the one remaining post and that another had simply been slotted into that post justified a conclusion that she had been unfairly dismissed.

1. Those facts essentially underlay the complaint which the Claimant made that she had been discriminated against on the grounds of race. In her ET1 she complained that her CV demonstrated that she was better qualified to continue in the role of assistant director/consultant in public health than was her comparator, had been denied any form of competitive selection for the post and, accordingly, there was an inference that she had been discriminated against on account of her colour contrary to section 4(2) of the Race Relations Act 1976.

1. The response of the employer, so far as material, is contained at paragraphs 15 and 16 of the ET3. The employer there denied that the Claimant should have been permitted to compete for the post reorganisation assistant director post or that it was inappropriate for the PCT to slot Mr Stewart into that post. The Respondent contended that his role as assistant director/public health specialist was materially the same as the role of the post reorganisation assistant director. It further contended that the Claimant's role, despite having a similar title to Mr Stewart's, was entirely different to that of either Mr Stewart or the post reorganisation assistant director such that it was not appropriate for the Claimant to be considered for that post. One might be forgiven for thinking that the Respondent's case was, therefore, that a deliberate but justifiable decision had been made to prefer Mr Stewart for the post in circumstances which did not require the employer to interview the Claimant.

1. The Tribunal's decision was fairly briefly set out for a case of the length it was. We should indicate that we have no complaint whatsoever about that. Tribunals are rightly enjoined to be brief where brevity will suffice. There are undoubtedly problems which may be caused by tribunals being over long. There is no requirement for a tribunal to dot every 'i' and cross every 't'. Ms Murphy reminded us of these points in her submissions for the employer and rightly so.

1. It is nonetheless axiomatic that a Tribunal's judgment must be sufficient in the circumstances of the particular case to enable the losing party to understand why it is that she has lost and, for that matter, the successful party why it is that they have won. There are at least three reasons for this which have been identified in the by now copious case law which refers to it. Indeed, for her part Dr Arhin has in her submissions referred us to the well known case of Meek v The City of Birmingham District Council [1987] IRLR 250 and Ms Murphy to what was said in relation to the same point in Balfour Beatty Power Networks Ltd v Wilcox [2007] IRLR 63, in that case to the effect that Rule 30(6) of the 2004 Rules, which requires sufficient reasons, is intended to be a guide and not a straitjacket so that if it can be reasonably spelled out from a determination that that which the rule requires has been provided by the Tribunal, then no error of law will have been committed.

1. The case law requires first that as a matter of elementary justice both parties should know the basis for a Tribunal's decision. Secondly, the Tribunal will inevitably find it an essential discipline to remind itself of the main findings it has to make to ensure that it has left nothing material out of consideration, nor included anything which is completely immaterial. Thirdly, sufficiency of reasoning is necessary if a court sitting on appeal, as we do, is to understand why it is a Tribunal has reached the decision it ultimately has, so that if there has been an error of law it may be identified and put right and, if there has been none that we may have the assurance that that is so.

1. Thus with those considerations in mind, we look at the conclusion to which the Tribunal came. It began at paragraph 4.28 under the heading "Race Discrimination":

"4.28 In respect of the Claimant's allegation that she was less favourably treated on the grounds of her race, the Claimant is black, she alleges that the relevant comparator is her white former colleague Glenn Stewart who held the other assistant director post and the fact that she was not allowed to compete for the post of assistant director was on the grounds of her race.

4.29 The Tribunal asked itself has the Respondent given an explanation for the less favourable treatment. As the Tribunal has already found it is clear there was a redundancy situation. What the Respondents fell down on was their failure to put the Claimant in a pool for selection and then allow her to compete for the one post. That was clearly unfair. However, the Tribunal cannot jump to the conclusion that that unfair treatment was on the grounds of the Claimant's colour. The Respondent's explanation was particularly Dr Okoli's that she felt that the Claimant's post disappeared in her proposals for reorganisation and thus believed mistakenly that then Mr Stewart's post could be slotted into the new one. That decision would have been made regardless of the Claimant's colour, race, ethnicity. We say that albeit the decision made by the Respondents was unfair we repeat that does not then lead the Tribunal to jump to the conclusion that it must be on the grounds of colour. We simply could not draw that inference."

1. Much of the Notice of Appeal by Dr Arhin was directed towards an argument that the Tribunal could not properly have come to the conclusion it expressed in that paragraph without there being a requirement that it should find that racial discrimination was the reason for the less favourable treatment it had identified. The unfairness of the treatment stood out. The explanation was not an explanation which justified that treatment. The conclusion thus would follow, given the shifting burden of proof, that - there being no justifiable explanation for the treatment - it must be that the treatment was afforded to the Claimant on the grounds of her race.

1. We have not heard Dr Arhin elaborating upon those submissions because in the event we called upon Ms Murphy first in this case. We did so because it seemed to us on preliminary consideration that the Decision of the Tribunal might not be one which satisfied the requirements of Meek and the other cases to which we have referred and might be internally inconsistent. Her submissions did not persuade us that we should call upon Dr Arhin to expand on her written arguments. We should simply say that, as we understand the law, the question which a tribunal has to address is whether less favourable treatment has been accorded to an employee on the grounds of race. If the reason for less favourable treatment in an allegation of direct discrimination is not race but is some other reason, then the allegation is not made out. If the employer satisfies the tribunal that there is some other reason, it does not have itself to be an inherently justifiable one. It does not have to be a good reason in a moral sense. It simply has to be a reason which has nothing to do with race. Where, for instance, treatment has been given by mistake then the fact that it had been given by mistake is an entirely sufficient reason provided the mistake itself has nothing to do with race.

1. As to that, it is plainly necessary to know something about the nature of the mistake. The fact that to be mistaken is rarely, if ever, justifiable, however understandable it may be, does not mean that it is not a perfectly adequate and proper reason to advance before a tribunal as the reason for particular adverse treatment, nor does it mean that a tribunal which so finds is in error of law to do so. Accordingly, had we called upon Dr Arhin to elaborate she would, on our current understanding of the law, have had a difficult row to plough in persuading us that the Tribunal could not simply dismiss her claim on the basis that that would be an insufficient reason.

1. We return to what the Tribunal decided. It was, viewed broadly, a decision that the employer's conduct was a mistake, made in paragraph 4.29. This is where, in our view, the difficulties begin. The judgment to be sufficient needs to explain what the mistake was, that it was relevant and that it had nothing to do with race. Here it is difficult to follow precisely what it is that the Tribunal thought was the mistake if one approaches what is said as a matter of literal logic.

1. Focusing upon the central sentence in paragraph 4.29:

"The Respondent's explanation was particularly Dr Okoli's that she felt as the Claimant's post disappeared in her proposals for reorganisation and thus believed mistakenly that then Mr Stewart's post could be slotted into the new one."

1. The word "thus" appears. The mistaken belief is said to be consequent upon the Claimant's post disappearing. However, it is implicit in the sentence that Mr Stewart's post, too, disappeared. Otherwise there would have been no question of his slotting in. He would merely have continued in the post he had hitherto occupied. It is thus a mistake which, as expressed, is not relevant to a decision that one existing post-holder should be slotted in and the other not interviewed, rather than both being interviewed, if the mistake truly was about the post disappearing, or if it was about the ability to slot in Mr Stewart's post as a consequence of the post disappearing. Neither appears logically sustainable.

1. What may lie behind this, taking a broader view of the judgment as a whole and bearing in mind the observations made in Balfour Beatty, may be a perception by the Tribunal that Mr Stewart was regarded by the Respondent as occupying a very different role from that performed by Dr Arhin. It might be possible to salvage the way in which the Decision is, though tersely, expressed if it could be shown that the Tribunal was clearly of the view that the Respondent honestly believed that Dr Stewart was occupying a very different role or, indeed, that he was occupying a very different role. That was clearly flagged up for the Tribunal's determination at paragraphs 15 and 16 of the Respondent's ET3. Ms Murphy in the course of her submissions before us repeatedly emphasised that the whole thrust of the Respondent's case was that although the job descriptions were on paper similar for the role which Dr Arhin for the one part and Mr Stewart for the other occupied, in practice what they did was very different. Thus, the mistake properly understood was on her submission a mistake not about the disappearance of one post leading to slotting in of another, but a mistake as to the necessary application in the circumstances of the slotting in procedure provided for by the employer's policies.

1. The trouble is that however obvious this may be to Ms Murphy, the Tribunal in our view needed to say so. What is conspicuous by its absence in the whole of the Tribunal's reasoning is any view upon this particular central plank of the Respondent's case. Indeed, insofar as anything is said, it tends, though not conclusively, to the opposite effect. Thus, at paragraph 4.16 the Tribunal notes that the Claimant and Mr Stewart had before the organisational changes held, "... substantially the same job descriptions whatever the Trust or Dr Okoli sought to advance". That may well be referring to job descriptions as they are written out on paper, but that is perhaps the less likely reading of the paragraph given the last nine words since one would expect there to be little dispute about the similarity on paper of descriptions clearly set out and, therefore, little room for the Trust or Dr Okoli to advance the fact that one job description differed from another. What might be referred to there is, therefore, the jobs as they were performed on the ground; that is, the practical job description, the description which the employer would give if asked to describe day to day that which the employee concerned actually did.

1. Such a similar inference is also perhaps to be gleaned from paragraphs 4.18 and 4.19. 4.18 discusses the policy. It provides so far as material that employees will be slotted into posts where:

"• The new post contains significant elements of the old post.

...(and)

• There is no other employee who could claim to be 'slotted in' to the same post."

1. In paragraph 4.19 the Tribunal comments that if one looked at the first bullet point that would apply to the Claimant and to Mr Stewart when looking at their job descriptions. This suggests looking at the job descriptions on paper, though it might be examining the jobs as performed.

1. In the second bullet point we have set out above, the Tribunal commented that that clearly did apply, as the Claimant could and should equally have been considered for slotting in. The experience, particularly the experience of the lay members, of this Tribunal is that a slotting in procedure is much more likely to reflect the practical realities of what is being performed in the workplace than it does the linguistic technicalities of a job description perhaps issued many months or maybe years earlier. It makes no sense to slot in someone who, though on paper is doing the same job, is, in fact, doing something very different from the job which he is to be required to do once he has slotted in.

1. Thus, the Tribunal here appear, if anything (and we emphasise those last two words) to be suggesting that in practice there was little between Mr Stewart and the Claimant. If that is so, it becomes very difficult to understand precisely what the Tribunal was saying was the nature of the mistake and why it was that it was content that it had nothing to do with race.

1. The problem is compounded by this consideration. What at essence was the problem here was the allegation that two people were doing essentially the same job (that was the Claimant's allegation) and both, therefore, were to be considered for doing essentially the same job in the future as that which they had been doing in the past. The Respondent's case, essentially, was that two people were not doing the same job and that it was, therefore, sensible that the one who was doing the same job as that which was to be done in the future should continue to do it. What that required at the very least was, first of all, a consideration as to what it was in practical terms first Dr Arhin and secondly her comparator were actually doing and, second, what it was that the new job was to consist of. Without knowing those three things - her job, his job and the new job - it simply could not be said that the Tribunal would be in a position to reach any evaluative decision.

1. As to the new job, the Tribunal at paragraph 4.12 said that there was no job description for the new post. At paragraph 4.15 they commented that without a job description it was difficult to decide what type of post the trust was, in fact, talking about. If those observations are correct, then it is very difficult to see how they could be satisfied that Mr Stewart was doing a job similar to the new one so that he could be slotted in because they simply were confessing an inability to know what the new job consisted of, and they made no findings about it. This is inconsistent with what is said at paragraphs 4.18 and 4.19. We quoted the first of the bullet points at 4.18 above, and the Tribunal's response in 4.19. In those paragraphs, the Tribunal seemed to be saying that the new post did contain significant elements of the old post, yet they have at paragraphs 4.15 and above appeared to say that they do not know what the new post consisted of. We do not understand.

1. In the absence, then, of findings which need, we repeat, only to have been fairly simple and fairly brief as to what it was the Claimant did, what it was Mr Stewart did, and what it was that the new job was to require of one or other of them, the Tribunal could not in our view come to its conclusion (expressed at paragraph 4.29 in the words that we have set out) in any meaningful way. We have already commented upon the linguistic difficulties of that sentence. In the light of the deficiencies we have identified, taking a wider view gives us no further assistance. However much we might be inclined to be forgiving, as one should be, of many deficiencies in a tribunal's decision, in our view this decision in its central elements and in its failure to grapple with the essence of the case as between the Claimant and the Respondent fails. It fails both because it fails to deal with the central issue satisfactorily between the Claimant and Respondent and in its explanation of the reasons why it comes to the conclusion it does.

1. We would add this. Where an employer seeks to rely upon having made a mistake which disadvantages a person who may legitimately think that they might be the subject of discrimination, one would normally hope that mistake would be identified as a reason in the Respondent's notice. This enables a tribunal to explore and investigate whether the mistake is a genuine mistake or not. Mistake may, as we have noted, be a perfectly adequate reason if it is shown itself to be free of any (in this context) racial bias, but it demands necessarily close scrutiny. It is easy to allege. It therefore requires a focus by the Tribunal upon the likelihood of the mistake having been a genuine accident which in turn requires a tribunal to think in many cases as to what systems there may be within the employer which tend to prevent such a mistake being made. That may include, for instance, the impact of having a human resources department and advice which a human resources manager may give. It may include, as the Claimant alleges is the case here, considering the likelihood of a mistake being genuine where the employer is alerted to it yet has persisted in the conduct said to be a mistake, and it is admitted only at court to have been one. A tribunal must be scrupulous to ensure that it "mistake" is not just a handy cloak for discrimination. It is easy to allege but it must be carefully and critically, in the best sense, examined.

1. As we have indicated, "mistake" if relied on would normally be set out in the Respondent's notice. It was not set out in this case. That may be, of course, for reasons of shame or simple personal reluctance to admit mistake, or it may be that the focus of the argument was elsewhere, as it may well have been in this present case. An Employment Tribunal is entitled to be suspicious of a ground of mistake which emerges for the first time during the course of the evidence. If it does and if the Tribunal is satisfied by it in the sense that it adequately explains that the less favourable treatment alleged has been afforded on some ground other than race, that is an end of the matter. Inevitably, these are very general remarks. All must depend upon the particular circumstances of the case, but an Employment Tribunal will not necessarily be easily satisfied by "mistake" as an explanation.

1. Of course, issues as to race discrimination must necessarily be resolved by looking not just at the particular incident relied upon but that incident in the broader context of the relationship between the employer and the employee. In this case, there are classic examples of that which tend both in favour of the employer and the employee. For the employer, it was observed by Ms Murphy that the Tribunal had accepted, as they did, that considerable efforts had been made to favour the Claimant in her attempts to find suitable alternative employment. For Dr Arhin it was observed that on one such occasion she was not given, or considered for, a post dealing with older people because of an approach taken by the person in the Respondent's employment concerned with that, a Ms Brown, which was itself discriminatory. These points are necessarily part of the wider picture which, if they are relevant context, should be looked at by the Employment Tribunal.

1. Here, as we have indicated, the Claimant alleged as she did that Ms Brown had discriminated against her. When the Tribunal came to deal with that point at paragraph 4.25, they said that the Tribunal was satisfied by Ms Brown's evidence and they set out what the effect of that evidence was. We were addressed on paper by Dr Arhin as to the adequacy of the Tribunal simply declaring its satisfaction by particular evidence, and we heard Ms Murphy on this point. We should not be taken as having reached any concluded view on appeal as to that. It is accepted that a tribunal may in many circumstances not sufficiently be performing its critical role if it declares itself merely to accept one witness' evidence or, for that matter, to reject it, but there may be circumstances in which it is fully entitled to do so. We draw attention to this because we are conscious that as a result of our decision upon the appeal for the reasons we have thus far given it may yet become relevant before a later tribunal, and we would not wish any argument to begin upon the basis that this Tribunal has reached any concluded decision on that. It seems to us that there is something to be said on both sides about it.

1. It follows that for the reasons we have given the Decision cannot stand. We accept that the reasoning is inadequate and inconsistent and does not deal with the central issues between the Claimant and the Respondent clearly and, indeed, that the answer cannot properly be inferred from the reasoning for the reasons we have given. Accordingly, this appeal is allowed and we shall hear the parties at 2.15pm as to the consequence of our decision.