Appeal No. EAT/335/91

	EMPLOYMENT APPEAL TRIBUNAL
	4 ST. JAMES'S SQUARE, LONDON, SW1 4JU

		At the Tribunal
		On 27 November 1991

	Before

	THE HONOURABLE MR JUSTICE TUCKER

	MR J D Daly

	Mr R H Phipps

MR N SAUBOORAH	APPELLANT

RICHMOND TWICKENHAM & ROEHAMPTON HEALTH	RESPONDENTS
 AUTHORITY

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR J CLAY
(Representative)
Free Representation Unit
13 Gray's Inn Square
LONDON
WC1

For the Respondents	MR J BOWERS
(Of Counsel)
Messrs Wilde Sapte
Solicitors
Queensbridge House
60 Upper Thames Street
LONDON
EC4V 3BD

	MR JUSTICE TUCKER:  This is an employee's appeal from a Decision of the Industrial Tribunal held at London (South) on the 1st March and the 22nd and 26th days of April of this year whereby they dismissed the Appellant's claim of racial discrimination.

	The Appeal as originally formulated related to the Tribunal's findings that no indirect discrimination had occurred but we allowed an amendment at a late stage to include an appeal against the Tribunal's finding that no direct discrimination had occurred either.

	The Appellant is a State Enrolled Nurse employed by the Respondents the Richmond Twickenham and Roehampton Health Authority, at Queen Mary's Hospital, Roehampton.  He worked on permanent night duty.  It is important to note as the Tribunal found and as the Appellant's representative Mr Clay agrees, that that was of the Appellant's own choice.  He could have gone on to rotating days and nights had he so wished but he elected to stay on nights.  He had been so employed since 1978.

	The matter arose out of the implementation by the Department of Health and Social Security of a new clinical grading structure for nurses which took place in April 1988.  Nine new scales were introduced designated A at the lowest to I at the highest.  They replaced the existing grades for nurses.  In May the Department wrote to the Respondent setting out the new scales.  The Appellant was undoubtedly qualified to be paid on at least Scale C and the question was whether he possessed the appropriate qualifications to be paid on the next highest scale D.  Scale D is in these terms:  it applies to posts in which the post holder is responsible for the assessment of care needs and the development of programmes of care and/or the implementation or the evaluation of these programmes.  The post holder is expected to carry out all relevant forms of care without direct supervision and may be required to demonstrate procedures to and supervise qualified and/or unqualified staff.  The post holder is required to have:-
	1)	 first level registration or
	2)second level registration plus a recognised post basic certificate or to have an equivalent level of skill acquired through experience or
	3)	second level registration and to supervise the work of other staff.
Mr Clay describes these terms as requirements or conditions.  Mr Bower for the Respondents describes them as factors or criteria and says there are five of them to be identified in the terms of the definition.

	When the Appellant's qualifications were assessed his basic qualification was found to be a second level registration.  Thus in order to qualify for Scale D he would have to be in a position where he supervised the work of other staff. 

	In September 1988 the Respondents notified the nurses, including the Appellant, of their implementation of the new structure, and the Appellant was graded scale C.  He was disappointed about this.  He thought he was qualified to be paid at the higher scale D.  He took advantage of the appeal procedure in order to advance his case, which was that he did supervise the work of other staff.  He was unsuccessful at each stage of the appeal procedure.  On the 26th September he was sent a letter saying his post did not meet the grading criteria of E but curiously contained no explanation why he had not been graded D.

	On the 15th December 1989 that is to say over a year later an analysis was made of the Appellant's responsibilities.  It showed that over the period under consideration he had worked 167 shifts but that he had been senior nurse on duty for only 23 of them.

	The Respondents had, unknown to the Appellant, applied a rule for grading at Scale E for 20% of the shifts rostered, 20% of 167 is 33.   The Respondents appeared to have adopted the same approach to the question of supervision for the purposes of Scale D. 

	The 20% rule was derived from guidance which had been received relating to the employee being in charge for an entire shift or more each week.  That is where the one in five, or 20% comes from.  It is not suggested that there was anything unreasonable or unfair about the application of such a rule taken by itself.  It is obvious that some such guidance would be necessary in approaching the very great number of applications with which the Respondent had to deal.

	The Appellant's case is that in the absence of any clear explanation why he did not meet the supervising criteria he could only conclude that he had been discriminated against by reason of his race.  When in due course he came to set out the grounds for his application in his Originating Application he said as much.  His complaint at that stage was of direct discrimination.  There was no reference in that document to indirect discrimination.  But meanwhile a very significant event had occurred.  The Respondents discovered that they had made a mistake.  Their calculations and their analysis of the Appellant's working duties and responsibilities had been in error.  They acknowledged this error in a letter of the 12th July 1990.

	In the course of that letter they said:
"that although we do not agree with every single date that you have put forward our analysis does show that you meet the criteria to warrant re-grading to Scale D. We are going to notify the Payroll Department to make the necessary back payments and this letter is formal notification of your re-grading."

then they offered a very handsome apology for what had occurred and the writer of the letter said this:
"I can assure you that this was a genuine error resulting from the fact that the information was held on a variety of records that need to be cross referenced to get a complete picture taking account of sickness cover and agency usage."

The Appellant does not accept that it was a genuine error.  

	The importance of this letter in our view is that it demonstrates not only that the Appellant could, while working on night shift, qualify for the necessary number of nights supervisory work but that he had in fact, done so.  He had all the time been qualified for Scale D and it is was only the most regrettable mistake, on the part of the Respondent, that prevented recognition of this fact.

	As has been indicated the Respondents immediately placed the Appellant on Scale D and they backdated his pay, so he has not suffered financially but has, he claims, suffered injury to his feelings.

	How is his Appeal put before us?  Mr Clay submits that indirect discrimination occurred under the provisions of Section 1(1)(b) of the Race Relations Act 1976.  I read the whole terms of that sub-section:
"(1)  A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if -

(a)on racial grounds he treats that other less favourably than he treats or would treat other persons;  or

(b)he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but -

(i)which is such that the proportion of the persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it;  and

(ii)which he cannot show to be justifiable irrespective of colour, race, nationality or ethnic or national origins of the person to whom it is applied and

(iii)which is to the detriment of that other because he cannot comply with it."

We think that this Appeal fails on a number of grounds.  

	First, in our opinion the Respondents did not apply any requirement or condition to this Appellant.  We agree with what is said about the formulation of the 20% test.  Mr Clay submits that if it was such a requirement or condition, then it was discriminatory because a smaller proportion of one racial group could comply with it than another.  That is because the night staff are comprised of a very much higher proportion of ethnic minority groups and nurses than the day staff and have less opportunity of supervising work.  

	That is Mr Clay's argument but it is in our view, difficult to sustain.  First, the test was certainly not applied to this Appellant since it was he who made the choice to work on the night shift and not the Respondents who kept him there.

	Secondly, we are not satisfied that this 20% rule was a requirement or condition.  There was no finding by the Tribunal to that effect.  We agree with Mr Bowers that it was no more than one of a number of factors.  We adopt what is said on this topic by Lord Justice Balcombe in the case of Mere v. London Borough of Tower Hamlets [1988] IRLR p.399.  We look at a passage at page 401 of the Judgment in paragraph 10 where the learned Lord Justice cites a passage from the earlier case of Perera v. Civil Service Commission.
"(2)  That a person claiming by virtue of Section 1(1)(b) of the Act that he had been discriminated against must prove that a requirement or condition had been applied to him with which he had been unable to comply and with which a substantially smaller proportion of qualified persons of his racial group would be able to comply than the proportion of similarly qualified persons of a different racial group."
That the Board in taking a number of factors into account in assessing the personal qualities of the Applicant were not thereby applying a condition or requirement and accordingly the complaint under Section 1(1)(b) also fail.

	At paragraph 13 to be found at page 402 of the Report, Lord Justice Balcombe himself said this:
"I have read from the Judgment in Perera at rather greater length than I would have wished because of the way in which Mr Seddley has put his arguments to us.   That case seems to me clear authority that a requirement or condition under s.1(1)(b) of the 1978 Act is a "must" -something which has to be complied with."

	In our view the 20% rule is not a "must".  It is not a requirement or condition;  it is a criterion; it is a test but it is not the only criterion or test;  it is one of many factors to be taken into account.

	But the most clear obstacle to the success of this Appeal is the third matter, which is this.  Even if the 20% test was a requirement it was not to the detriment of the Appellant because he cannot say that he could not comply with it (see Section 1(1)(b)(iii)).  The Appellant could comply with it and did so.  He was not caused any detriment by that rule.  Any detriment which he sustained was not due to that requirement, if it be a requirement, but to the mistake which regrettably occurred in the Respondents' administration.  That is what caused him any detriment.  There was no racial discrimination on the Respondent's part.

	That brings us to the question of direct discrimination about which we feel it unnecessary to say a great deal.  We agree with Mr Bowers' submission on this, that the Appellant has to show a difference in treatment to him on racial grounds.  The Respondents' case is first, he has not been treated less favourably than anyone else and secondly, if he has it was not on racial grounds but due to the mistake that occurred.  The Appellant says that the condition, if it be a condition or requirement applied differently to him, but it did not.  In our view Mr Bowers is right in his submission that this was a requirement or condition  criterion or factor, call it what you will, which applied to everyone. 

	The Appellant submits that it had a different impact on him, but it cannot be said to be a difference in treatment between a person on racial grounds.  This condition or requirement, factor or consideration applied to everyone in the Respondent's employment.  There was no discrimination here, racial or otherwise.  

	We agree with one of the submission which Mr Clay makes that the reasoning of the Tribunal might have been more felicitously expressed in paragraph 10 of their Reasons where they certainly purport to be saying on the face of it that the onus seems to be on the Appellant to make out his case of racial motivation.  That is not the law and we cannot think that is what the Tribunal intended to say.  One finding is perfectly clear and that is this:
"We are quite satisfied that in this instance that the mistake made by the employees of the Respondents was an honest one and was not actuated by any motives of a racial nature at all"

Mr Bowers interprets the findings in that paragraph as being a synomous use of the word "motive" for "reasons".  We do not feel that in that paragraph alone the Appellant has shown the reasoning of this Tribunal to be flawed.  

	The main obstacle in his way is that which we have sought to highlight that is to say this Appellant was not prejudiced by the imposition of this condition.  He could meet it;  he could comply with it and he did comply with it.  Accordingly, this Appeal must fail and it is dismissed.

	In our view this is a case which it was unnecessary to bring and it was unreasonable to bring it.  We take the view that appeals such as this should be discouraged.  We propose to make an Order for Costs.  On the other hand we bear in mind the position of the Appellant and the fact that he is not supported by his Union but is represented, and if we may say so, been very ably represented by the Free Representation Unit.  We direct that he pay £100 towards the Respondents' costs.  Whether the Respondents enforce that Order is a matter for them.