Appeal No.	EAT/1218/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 July 1999

Before
HIS HONOUR JUDGE D M LEVY QC
MR A E R MANNERS
MR P M SMITH

MS D CYRUS	APPELLANT

THE SECRETARY OF STATE 
FOR EDUCATION & EMPLOYMENT	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR S FINN
(Solicitor)
Messrs Kidd Rapinet
Solicitors
26 High Street
High Wycombe
Bucks  HP11 2AD	
For the Respondents	MR T PITT-PAYNE
(of Counsel)
Instructed By:
Mr J Emmott
Messrs Dibb Lupton Alsop
Solicitors
117 The Headrow
Leeds  LS1 5JX	

	JUDGE LEVY:	Ms D Cyrus, the Appellant, made a complaint to an Employment Tribunal.  It was received on 14 August 1997.  She complained of racial discrimination in her employment.  

1	Her employer entered an appearance on 8 September 1997.  Her complaint was heard by an Employment Tribunal sitting at Reading on 13 May 1998 and 10 July 1998.  The decision was sent to the parties on 21 July 1998.  The Tribunal found that the Appellant was not discriminated against, as alleged, and dismissed her application.  

2	There were no authorities referred to in the Extended Reasons of the Tribunal.  The Extended Reasons show that the parties were represented at the hearing; Ms Cyrus by her Trade Union Representative and the Respondent, her employer, by a solicitor.  Unhappily, the Extended Reasons failed to show that the hearing was on 13 May as well as 10 July 1998.  It helps this Tribunal if all days of the hearing are shown on the first page of the Extended Reasons of the Employment Tribunal. 

3	From the unanimous decision of the Tribunal, headed by a very experience Chairman, the Appellant appealed by a notice dated 13 August 1998.  Her appeal came before a different panel on 17 February 1999 on the preliminary hearing system.  On that date this Tribunal dealt with a number of grounds raised by the Appellant in the Notice of Appeal she had prepared for herself, and dismissed them.  However, she had the advantage of Counsel appearing under the ELAAS scheme for her and the Tribunal permitted her to amend her Notice of Appeal to allege grounds which has been argued before us this morning. 

4	The amended Notice of Appeal reads:

“1)	The Tribunal erred in law in concluding in paragraph 9 and 10 of the Extended Reasons that the Respondent had not discriminated against the Appellant because the acts complained of were not racially motivated.
2)	The Tribunal erred in law in considering that the Respondents motives were determinative of the question of whether there had been discrimination against the Appellant contrary to section 1(i)(a) and section 4(2)(c) of the Race Relations Act 1976.”

It appears from the Employment Tribunal’s decision that three complaints of racial discrimination were pursued before that Tribunal.  They were complaints made in relation to the delays in dealing with a complaint of the Appellant sent to the Personnel Manager on 3 June 1997.  In that account the Appellant complained of bullying, racial discrimination and harassment by her Business Manger.  The Extended Reasons deal in paragraph 6 with the delays in this way:

“Mrs D McAree said in evidence that she could not have dealt with the applicant’s complaint between 3 June and 12 August 1997.  She said that at the time when the applicant’s internal complaint was assigned to her on 19 June 1997 she was already dealing with eight other complaints.  She produced a chart which demonstrated that it took her nine months to deal with the applicant’s complaint which involved interviewing 17 people and cost £5,671.38.  Other complaints took even longer.  She instanced that one took 11 months and two took 11½ months each, but none involved interviewing so many people nor did they cost as much.”

The second matter the Appellant complained of was that she was moved to Maidenhead from the High Wycombe office of the Respondent while her internal complaint was investigated while the six individuals against whom she had made allegations were not moved.  This was dealt with in paragraph 7 of the Extended Reasons in this way:

“Another point made on behalf of the Applicant was that the internal rules laid down that if a complaint was made by one member of staff against another both should be moved from the office in which they worked.  She asked us to infer that in requiring only her to move the respondent was racially motivated.  The respondent countered that by saying that if they had moved the six people she had accused it would have had the effect of almost denuding the High Wycombe office.  As the office had to be kept running they deemed it expedient only to move her.”

The third matter of which the Appellant complained is that the Office Manager did not accede to her request to be given the access code to allow her to enter her former office after she had been moved to Maidenhead.  The factual background was dealt with in paragraph 8 of the Extended Reasons in this way:

“After the applicant ceased to work at the High Wycombe office the code to the security locks was changed.  To gain access after hours it was necessary to know the current access code.  After she was transferred to Maidenhead she telephoned Mr P Humphrey, the High Wycombe Office Manager, and said she wanted to collect some things from the High Wycombe office and asked for the access code.  He said that she could collect her things, but did not give her the code.  When asked why he said in evidence that although he did not refuse her the code he did not volunteer it and seemingly she did not pursue her request.  Notwithstanding that she did not then repeat her request she asks us to infer that Mr Humphrey discriminated against her in not volunteering the then current code.”

All these complaints were rejected by the Tribunal for reasons to which we will come in a moment.  

5	Essentially, what arises on this appeal is the submission that the Employment Appeal erred in treating the Respondents’ motives as being determinative of the issues where there had been racial discrimination and reference was made by Mr Finn in his submissions to the decision of the Court of Appeal in King v Great Britain-China Centre [1992] ICR 516 and later approved by the Court of Appeal in Zafar v Glasgow City Council [1998] IRLR 36.  In King at page 518, Neill LJ, giving a judgment with which the other two Lord Justices agreed having referred to various authorities, said:

“From these several authorities it is possible, I think, to extract the following principles and guidance.  (1) It is for the applicant who complains of racial discrimination to make out his or her case.  Thus if the applicant does not prove the case on the balance of probabilities he or she will fail.  (2) It is important to bear in mind that it is unusual to find direct evidence of racial discrimination.  Few employers will be prepared to admit such discrimination even to themselves.  In some cases the discrimination will not be ill-intentioned but merely based on an assumption that “he or she would not have fitted in.”  (3) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal.  These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 65(2)(b) of the Act of 1976 from an evasive or equivocal reply to a questionnaire.  (4) Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of difference in race will often point to the possibility of racial discrimination.  In such circumstances the tribunal will look to the employer for an explanation.  If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds.  This is not a matter of law but, as May LJ put it in North West Thames Regional Health Authority v Noone [1988] ICR 813,822, “almost common sense.”  (5) It is unnecessary and unhelpful to introduce the concept of shifting evidential burden of proof.  At the conclusion of all the evidence the tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts.  They should then reach a conclusion on the balance of probabilities, bearing in mind both the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case.”

6	In considering that decision in the preliminary hearing, the panel headed by Judge Clark accepted a submission by Mr Tatton-Brown that the questions to be asked by an Industrial Tribunal were these:
(1)	was there a difference in treatment between the Appellant and an actual or hypothetical comparator
(2)	was there a difference in race
(3)	if so, has the Respondent provided an adequate explanation for that difference in race, if not, should an adverse inference of unlawful discrimination be drawn against the Respondent?

7	For the Appellant here, Mr Finn has submitted that as question (4) has been answered by in the decision of the Tribunal, it meant that question (1) has been answered positively in her favour.  Against that Mr Pitt-Payne, on the behalf of the Respondent, submitted that the decision is examined closely, it is quite clear that although it does not set out the four questions in sequence, it is quite clear from reading it that the Employment Tribunal has properly directed itself and has come to an impeccable conclusion.  He submits that it is not necessary for the four questions arising from King to be set out as if a mantra.  He points out that the Employment Tribunal reached a specific finding as to the first of the complaints in paragraph 9(a) of the decision in these terms:

“Mrs McAree could not, between 3 June 1997 and 12 August 1997, have serviced the applicant’s internal complaint and that the length of time that was taken was reasonable and not influenced or affected by the fact that the applicant was black”.

8	He submits that the basis for the finding clearly was the evidence summarised at paragraph 6 of the Employment Tribunal’s decision which we have already recited.  He submitted that given that finding, there was no possible basis for saying that there was a difference in treatment between the Appellant and an actual or hypothetical comparator, thus there was no need for the Employment Tribunal to set out the four stage test in King.  The Appellant’s complaint did not get past stage one of the test.  We accept that submission. 

9	As to the second complaint of the Respondent, this was dealt with at paragraph 9(b) of the Extended Reasons in this way:

“(b) that the respondents were not racially motivated:-
(i)	in transferring the applicant to Maidenhead whilst her internal complaint was investigated; and
(ii)	in not denuding the High Wycombe office by moving the six people she accused of racially harassing her”.

10	Mr Pitt-Payne accepted that, looked at in isolation, the words “racially motivated” used by the Employment Tribunal was not happily worded.  He accepted that the right test for race discrimination was not whether there was a conscious motive or intention to discriminate, but whether, but for her race, the Appellant would have been differently treated.  He submitted that the paragraph needed to be read in its context.  The Tribunal had already directed itself in impeccable terms in the previous paragraph by asking whether the Appellant’s treatment was “influenced or affected” by the fact that she was black.  He submitted that it was highly unlikely that at paragraph 9(b) the Tribunal was adopting a different test.  He submitted that a fair reading of the decision as a whole led to a conclusion that the phrase “racially motivated” was shorthand, referring back to the question correctly identified in the previous paragraph.  He submitted that the paragraph also needed to be read in conjunction with the findings in paragraph 7 also already recited in this judgment.  

11	He further submits that what happened was that the Appellant relied on a difference between the way in which she was treated and the treatment which she said was envisaged by the Respondent’s rules.  The Respondent put forward a non-racial explanation for the difference in treatment.  That explanation was clearly accepted by the Tribunal as a true explanation.  It followed that there was no possible basis from which discrimination could be inferred.  Inevitably therefore, the claim of discrimination failed.  Again, we accept Mr Pitt-Payne’s submissions.  

12	On the failure to supply the Appellant with the access code, this was dealt with in paragraph 9(c) of the findings of the Employment Tribunal.  They said:

“that Mr Humphrey was not racially motivated when he did not accede to the applicant’s request, after she had been transferred to Maidenhead, to be supplied with the access code to the High Wycombe office.”

Mr Pitt-Payne submitted that the same approach should be taken to this holding as had been taken with the second heading, this time having regard to paragraph 8 of the Extended Reasons.  If this was done it was clear that Mr Humphrey had put forward a non-racial explanation of his treatment to the Appellant, that is, she did not persist in her request; the Employment Tribunal accepted the truth of that explanation.  Inevitably there was then no basis for an inference of discrimination and the Appellant’s complaint was bound to be dismissed.  Again, we accept Mr Pitt-Payne’s submission.  

13	In our judgment close reading of the Extended Reasons shows in reality, why the Appellant’s claim failed in the Industrial Tribunal.  We do not think it necessary for the questions in King to be set out in sequence, though it is obviously not helpful for the words “racial motivation” to be used in a way which can be misconstrued in the context of employment law.  In the circumstances, having carefully considered the submissions of Mr Finn and those of Mr Pitt-Payne, we are satisfied that the decision of the Tribunal below was right and accordingly, we dismiss this appeal.