Appeal No.	 EAT/864/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 March 2000

Before
HIS HONOUR JUDGE COLLINS CBE
LORD GLADWIN OF CLEE CBE JP
MR J A SCOULLER

WEST LONDON HEALTHCARE NHS TRUST	APPELLANT

MR M A JOSEPH	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	 Mr J Hopkins
(of Counsel)
Messrs Bevan Ashford
Solicitors
35 Colston Avenue
Bristol
BS1 4TT	
For the Respondent	In Person	

JUDGE COLLINS:

1.	This is an appeal against the decision of an employment tribunal sitting at London North.  The extended reasons were promulgated on 30 April 1998.  It is a complaint of racial discrimination in July 1996.  

2.	By their decision the tribunal held that there had been racial discrimination against the appellant by subjecting him to a detriment within the meaning of s4(2)(c) Race Relations Act 1976. The detriment in question was suspending him contrary to the appellants' own disciplinary procedure.  They awarded him £1,000 for injury to his feelings.  There was a claim before the tribunal of victimisation under s2 Race Relations Act 1976.  The tribunal held that the respondent had not done any act which was protected under s2 and dismissed that claim.

3.	The essential facts are that the respondent was a clinical team leader at a psychiatric intensive care unit under the management of the appellants.  His employment began on 4 February 1996.  On 22 July 1996 he was suspended after an allegation that he had been asleep while on night duty and in charge of a patient who was a potential danger, either to himself or others.  It is not entirely clear, even now, whether the allegation relates to his being asleep on 7 June or  7 July.  

4.	An investigation hearing took place on 5 August 1996; Mr Tucker, the Nursing Manager, who held the investigation hearing, was the same person who had written the letter of suspension of 22 July 1996.  At the investigation hearing persons gave evidence to Mr Tucker that they had noticed the respondent asleep and the respondent himself said that he may have dozed off and it is possible that he could have fallen asleep.  Not withstanding those admissions, Mr Tucker decided that the matter would not be taken any further and wrote to the respondent saying that his suspension was lifted and his period of suspension would be treated as sick leave.  Subsequently for unconnected reasons, so as far as we are concerned at any rate, the respondent has gone to work at another hospital.  

5.	The background to the case is that the respondent objected to the practice of other nursing managers in the unit placing patients on seclusion.  He felt that this was done arbitrarily and without proper regard to the interests of the patients and made his views clear.  Partly as a result of this and partly as a result of other factors, he maintains that there was an atmosphere of racial disharmony in the unit, that the white nurses stuck together, the black nurses stuck together and he is of the view that racial considerations were at the heart of the allegations which were made against him.

6.	The tribunal in paragraph 9 of their decision recite some of the generalised complaints and specific complaints which the respondent made, but they have done so without stating whether or not they accept their substance.  The tribunal had before them the appellants' disciplinary procedure;  in paragraph 16 they hold that the appellants were clearly in breach of that procedure in two respects.  First, they hold that under the procedure the appellants should have carried out an investigation before deciding to suspend the respondent.  Second, they point out that the suspension should normally be for up to 3 days, while the appellant was suspended for nearly 2 weeks.  

7.	Having stated that conclusion in paragraph 16, they devote the next two paragraphs to the victimisation claim, which they dismiss.  Then in paragraph 19, they refer to there being a negative attitude towards the respondent by white staff on the ward, partly because he was black and partly because of his outspokenness; one person in particular, namely the person who reported him for being asleep was said to be a principal in this regard.  In paragraph 21, the tribunal hold: 

“We find on balance that a white clinical team leader involved in a similar incident would not have been suspended from duty.

8.	It is not clear from the tribunal’s reasons that there was any evidence on which they could have come to that conclusion.  They recite no evidence which is directly related to that finding, nor do they elsewhere in their reasons set out material which could have justified that conclusion.  While in paragraph 23 they state that there is no acceptable explanation why steps could not have been taken to investigate the allegations before suspending because on any view the sleeping incident was stale, they do not explain why that treatment was less favourable than it would have been to others. In paragraph 24 they state the essence of their conclusion : 
“In view of our findings about his suspension, we find on balance that the Applicant was less favourably treated than other white clinical team leaders would have been treated, and we draw the inference that this was on racial grounds.”

We shall return to this conclusion after completing our consideration of the procedural issues.

9.	Mr Hoskins on behalf of the appellant has submitted that the tribunal misread the disciplinary procedure, although he was obliged to concede that it was badly and confusingly written.  Paragraph 3 sets out  the procedure for investigation.  Paragraph 4 sets out what is called procedural principles and begins in these words:
'If the decision is taken to consider the case at a formal disciplinary hearing, the following principles will apply…' 

and then  (i) to (vii) follows, (vi)  dealing with suspension. It might be suggested,  and this is the view which the tribunal took,  that the question of suspension only arises once the decision has been taken to consider the case at a formal disciplinary hearing.  Mr Hoskins points out that if one reads the whole of (vi) and in particular the second sub-paragraph, it is clear that suspension is to precede  the investigatory hearing and not come after it.  

“Suspension will normally only be for up to three days to allow an investigation to be carried out at which point an investigatory hearing will be convened.”

10.	In relation to the procedure, it is a further ground of appeal that the tribunal made its decision without giving an indication that they were considering it as material and without giving the parties an opportunity to be heard.  In the light of that allegation, the Chairman was asked for his comment which  we have in a letter written by him to the Registrar on 24 October 1999 .  In that letter  the Chairman fails to state one way or another whether the point was raised during the case of the hearing.  I asked Mr Joseph what his recollection was on this point and his reply was that  the tribunal had the materials before it. In those circumstances  we ought to conclude that the procedure point was not canvassed or raised before the tribunal.  But we are not prepared today on the material that we have, to say that the tribunal was wrong in holding that the procedure had not been complied with.  The question of construction is one which should be determined against the appellants in the events of any ambiguity. 

11.	I have referred to paragraph 23 of the reasons where it was pointed out that on any view of the incident relied on for the suspension, it was stale.  At paragraph 4 (6) of the Disciplinary Procedure, it is provided: 
“A disciplining manager may only suspend an employee from duty if it is felt likely that the presence of the employee constitutes a serious risk to patients, staff or NHS property.”
On the facts found it would have been open to the tribunal to conclude that there was no serious risk to patients, staff or NHS property from the presence of Mr Joseph on the premises and accordingly the procedure was not carried out properly, although they do not articulate this in their reasons.  For the purposes of this appeal we do not find it necessary to make any definitive finding on the question of whether or not the procedure was correctly carried out.  We have pointed out our reservations about the tribunal’s construction of the procedure and  our concern  that the  question of whether or not his presence constituted a serious risk may have been inadequately dealt with by the appellants.  

11.	We now turn to consider what seems to us to be central to this appeal. In order to succeed in an application for racial discrimination an applicant has to show that he was treated less favourably than the employer would have treated other persons, that that less favourable treatment was on racial grounds and that he was subjected to a detriment.  As I have already indicated, the tribunal’s finding that a white clinical team leader involved in a similar incident would not have been suspended from duty was derived from no facts or evidence which are apparent from the judgment.  Accordingly, we can see no basis on which they could have properly come to that conclusion.  It is true that in paragraph 9, there is a reference to the respondent's case that somebody had given stockroom keys to a patient who had broken into the stockroom, broken  bottles and harmed himself.  But the tribunal does not say that they accepted that assertion, nor  that it was a matter which they took into account when coming to the conclusion that a white clinical team leader involved in a similar incident would not have been suspended from duty.  Had there been evidence which supported that conclusion, we would have expected to find it set out in paragraph 21 of the reasons.  

12.	In any event the question of inferences has to be considered.  Mr Hoskins in his submissions  conceded that if there had been a breach of procedure, the tribunal were entitled to infer that it was on racial grounds, assuming of course that they had decided correctly that it amounted to less favourable treatment.  We are far from sure that that concession was correctly made. In  Zafar v Glasgow City Council [1988] I.R.L.R.36 the House of Lords approved the judgement of Neill LJ in King v The Great Britain China Centre [1991] I.R.L.R. 513 in relation to drawing inferences. It may be that something more was required. 

13.	Now while this tribunal does not interfere with the decision of the employment tribunal on its finding of primary facts, it is more ready to consider inferences  drawn from primary facts. We look to see whether there is any material disclosed in the judgment of the tribunal which justified the inference that the less favourable treatment they had detected was on racial grounds.  We can find nothing in the facts found by  or the reasoning of the tribunal to show why they drew that inference. The bald reference in paragraph 24 to their findings about the suspension do not in our judgment provide an adequate basis for such an inference. In those circumstances it seems to us impossible to allow the decision to stand. 

14.	For the sake  of completeness it ought to be recorded that a point was taken as to whether the suspension constituted a detriment under Section 4(2)(c).  Plainly, if the procedure was carried out correctly, and not in bad faith, it would be difficult to argue that it was detrimental to somebody who was its object. It seems to us  arguable that if the procedure was carried out incorrectly then a suspension,  in ordinary  language,  would be detrimental to the person who was suspended, but in view of the decision  which we have come to on the rest of the points which have been argued it is not necessary for us to express any concluded view.  

15.	We have considered what the practical consequences of our decision should be.  The choices are to dismiss the appeal or to remit the matter for a fresh hearing by a new tribunal.  We bear in mind that the matters concern events that occurred in July 1996, so that the option of remitting the case for a rehearing is most unattractive one. In the event it seem to us that we ought to proceed on the basis that the material findings of fact, are those which are set out in the tribunal’s reasoning. It is sufficient to dispose of this appeal that those material facts simply do not support the conclusions.  The result is that although we have considerable sympathy for Mr Joseph, who has argued his case very well before us and to impressed us as a truthful, decent and hardworking person, if he will allow us to say so must be that this appeal will be allowed and the finding of racial discrimination will be reversed.