Appeal No. EAT/777/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 7 December 1995 
	Judgment delivered on 13 February 1996

	Before

	HIS HONOUR JUDGE P CLARK

	MR R SANDERSON OBE

	MRS M E SUNDERLAND JP

OLDHAM METROPOLITAN BOROUGH COUNCIL	APPELLANTS

MR RAYMOND T DIXON	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR NIGEL GRUNDY
	(of Counsel)
	Janet Goodman
	Legal & Secretarial Services
	Oldham Metropolitan Borough 	Council
	Civic Centre
	PO Box 33
	West Street
Oldham
OL1 1UL

For the Respondent	MR COURTNEY HAY
	(Community Worker)
	Northern Complainant
	Aid Fund
	Checkpoint
	45 Westgate
	Bradford
	West Yorkshire		

	JUDGE P CLARK:     This is an appeal by the employer, Oldham Metropolitan Borough Council against a unanimous decision of the Manchester Industrial Tribunal, following four days of evidence and argument in April 1994, that it had unlawfully discriminated against its employee, Mr Dixon, on the grounds of his race.  Their extended reasons for that decision are dated 4 July 1994.  They made an award of £1500 compensation for injury to Mr Dixon's feelings.

	The Respondent commenced employment with the Council in July 1988.  At the relevant times he was a full-time child care officer at the Hardman Fold School.  From April 1990 the Head of the school was a Mr Maycock.

	In his Originating Application dated 14 August 1993 the Respondent alleged a series of acts of racial discrimination against him by Mr Maycock.  These are set out by the Tribunal in paragraph 7 of the extended reasons, and rejected by the Tribunal at paragraph 8.  The decision then goes on to focus on disciplinary proceedings taken against the Respondent by his employer during the period April - June 1993.

	That process began with what may broadly be described as a complaint of sexual harassment against the Respondent by a white female member of staff at the school, Helen Price, to Mr Maycock on 2 April 1993.  That complaint was reduced into writing.

	Further complaints of sexual harassment then followed from other female staff members; Susan Gleaves, in a statement by her dated 3 April; Anne Harris on 4 April; Marie Carlisle on 5 April, and Judith Blease on 14 April.

	The school referred these matters to the Education Department of the Council, which then carried out an investigation.

	On 26 April a disciplinary enquiry meeting was held.  The investigators were Mr Tweed and Mrs Tidy; the Respondent attended that meeting with his Trade Union representative, Mr Madden.

	On 7 May the 5 complainants were seen by Mr Tweed and Mrs Tidy and as a result further typed statements were taken from each of the complainants.  Those statements are each dated 11 May, although Mrs Harris did not sign hers until 17 May, and Mrs Blease made a manuscript addition before she signed her statement.

	Those statements were disclosed to Mr Dixon and his representative at the next disciplinary enquiry meeting, held on 11 May.

	The formal disciplinary hearing initially scheduled for 25 May was put back to 16 June to allow Mr Madden to consider the statements of the complainants collected by the investigators.

	Between 25 May and 16 June the earlier statements of the complainants Harris, Price and Carlisle were typed up, but with some additions by each of those women.

	The new statements were served on the Respondent on 10 June.

	Accordingly, by the time that the disciplinary hearing took place on 16 June all the statements made by the complainants, that is 3 statements by Carlisle, Price and Harris and 2 each by Gleaves and Blease had been served.  The five complainants attended the hearing and were subject to cross-examination.  The senior officer chairing the hearing was Mrs Holmes.  She found all the allegations of sexual harassment proven; the penalty imposed was a final warning which was to remain on the Respondent's record for 2 years.

	Against Mrs Holmes decision the Respondent appealed.  The matter came before the Council's appeal committee by way of a re-hearing on 3 November 1993.  He was represented by a solicitor; all the complainants gave evidence again.  The committee decided to reduce the penalty to a warning which was to lie on his file for 12 months instead of 2 years.

	Meanwhile, the Respondent had commenced Industrial Tribunal proceedings, and had instituted the section 65 Questionnaire procedure.  Section 6(e) of the Questionnaire dated 30 September 1993 requested copies of any documents/statements which were used in the internal investigation.  Correspondence then took place between the parties, culminating in a letter from the Council's legal department dated 20 January 1994.  Pausing here, the short answer to the request for statements was that the Respondent had all the relevant statements, and had had them since June 1993.  However, in relation to the period 25 May - 16 June 1993, Mrs Goodman, the solicitor dealing with the matter on behalf of the Council said this:

		"No further statements were taken by the investigating officers.  The existing statements were however re-typed between the two hearings.  This was on the advice of the Personnel Officer, Gillian Hindley.  She advised that the statements were not in a clear form and some were not signed and dated.  She advised that the contents should not be changed and indeed the contents of the statements were not changed."

	During the course of the Industrial Tribunal the Respondent made a number of allegations of race discrimination arising from the disciplinary proceedings.  They are set out by the Industrial Tribunal at paragraph 20 of their reasons in this way:

			"(a)  A screen had been introduced at the disciplinary hearing contrary to previous practice.  It was highly prejudicial to the applicant's case and suggested a pre-judgement that there would be intimidation of the women complainants.  The Tribunal was invited to decide that no such screen would have been provided if the applicant had been white.

			(b)  The decision to use 5 complaints instead of 2 was prejudicial to the applicant and was done at the last moment before a disciplinary hearing.  The Tribunal was invited to decide that this would not have happened to a white applicant.

			(c)  Statements were changed between the hearings and the Tribunal was invited to decide that such a change would not have been made if the applicant had been white.

			(d)  The decision made by Helen Holmes that the applicant should have a written warning which was to stay on his file for 2 years was twice as long as any previous case of a similar type.  The Tribunal was invited to decide that this would not have happened if the applicant had been white.

			(e)  Part of the answer to the questionnaire under Section 65 of the Race Relations Act 1976 was contrary to Section 65(2)(b).  The Tribunal were invited to infer that the respondents as a consequence had committed an unlawful act.

			(f)  The respondents' explanations for the situations where the applicant was treated differently from other employees was unsatisfactory and inadequate and the Tribunal was invited to infer within the authority of King v The Great Britain - China Centre [1991] that the decisions were made on racial grounds." 

	As to those complaints, the Tribunal dismissed each apart from those identified at paragraph 20(c) and (e).  As to those they said;

		"26.  However, the Tribunal found no satisfactory explanation why the complaints were changed between the hearings.  This could not be explained even by the importance which the respondents gave to the feelings of the complainants.  Applying the authority of King v The Great Britain - China Centre the Tribunal inferred that the reason for the change in the statements was racial grounds.

		27.  Finally in the case of the answer to the questionnaire the Tribunal was given no explanation whatsoever as to why Mr Shipp [Director of Legal and Secretarial Services under whose hand the letter went out] said that there had been no changes in the statements.  The Tribunal decided that it was bound to consider Section 65 subsection (2)(b).  The reply had not been evasive or equivocal but it had been untruthful.  The Tribunal was entitled to infer from this that the respondents had committed an unlawful act."

	On the basis of those matters they found that there had been racial discrimination contrary to the 1976 Act.

	In attacking that conclusion Mr Grundy takes the following points:

		(1)  The Industrial Tribunal erred in law in that it made no finding of unequal treatment on which to base its eventual conclusion.

		(2)  The Tribunal drew an automatic inference of unlawful discrimination, and in so doing misapplied or misunderstood the guidance given by Neill L.J. in King v The Great Britain - China Centre [1992] ICR 516, 528F - 529C.  In this connection he relied upon the Court of Appeal decision in Qureshi v London Borough of Newham [1991] IRLR 264 and this Appeal Tribunal's decision in Leicester University Students' Union v Mahomed [1995] ICR 270.

		(3)  The Industrial Tribunal wrongly drew an inference of unlawful discrimination from the Appellants' answer to the questionnaire in their letter dated 20 January 1994, set out above.  

		(4)  The Tribunal failed to identify in what way the facts found amounted to unlawful discrimination under section 4 of the 1976 Act.

	Both representatives accepted that before making a finding of discrimination on the facts as found in this case it was necessary for the Tribunal to engage in a 5-stage process (bearing in mind that the onus of proof is on the applicant):

		(1)  it must first find unequal treatment; that is, that Mr Dixon was less favourably treated than an actual or hypothetical comparator.  See Chapman v Simon [1994] IRLR 124 (CA).  

		(2)  there must be a difference in race

		(3)  what explanation for the unequal treatment is put forward by the employer?

		(4)  is that explanation adequate and/or satisfactory?  If not

		(5)  ought, not must, an inference of unlawful discrimination be drawn from these facts?

	Only where all of these conditions are made out in favour of the applicant is it right to find unlawful discrimination.   

	Mr Hay accepted during argument that the Tribunal's reasons contain no finding of disparity in treatment in relation to the altering of witness statements.

	This may be contrasted with findings of disparate treatment made in relation to paragraph 20 (a) and (d) of the reasons.

	In our judgment that omission renders this decision fatally flawed.  If stage 1 of the 5 stage process identified above is left out, the ultimate conclusion cannot stand.

	It follows that this decision must be set aside.  We have canvassed with Mr Grundy and Mr Hay the appropriate action for us to take.  Neither was keen to re-run this old case over 4 days.  However, we have concluded that it cannot be said that the final decision is unarguably wrong and we shall not reverse the Tribunal's finding of discrimination.  Equally, we think it undesirable for the case to be remitted to the same Tribunal for reconsideration.  In the result the whole matter will go to a fresh Tribunal for re-hearing.  We hope that it will be re-listed as soon as is practicable.