Appeal No.	 EAT/1243/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 19 May 1997

Before
HIS HONOUR JUDGE PETER CLARK
MR E HAMMOND OBE
MRS R A VICKERS

EALING RACIAL EQUALITY COUNCIL	APPELLANTS

MR S HOMER	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR JOHN BUTTERWORTH
(Consultant)
Mr G Gremer
Ealing Racial Equality Council
2 The Green
High Street
London
W5 5DA	
For the Respondent	MR ROBIN HAWKER
(Representative)
34 Sacombe Round
Sacombe
Ware
Hertfordshire
SG12 0JW	

	JUDGE PETER CLARK:   This is an appeal by the employer, Ealing Racial Equality Council [“EREC”], against a decision of the London (North) Industrial Tribunal that it had victimised the applicant employee, Mr Homer, contrary to s.2(1) of the Race Relations Act 1976. The tribunal awarded him compensation for injury to feelings in the sum of £750.00. Extended reasons for that decision are dated 18th September 1996.

The Facts
The applicant is of Afro-Caribbean origin, born in Trinidad. He was at all relevant times employed by EREC as a training officer working on the South Acton Training Project, set up to train African and Afro-Caribbean residents on the South Action estate in Information Technology and job search and interviewing techniques.

	The project opened in mid-November 1993 and was started by the applicant and a Mr Nadoo, who managed the project.

	In July 1994 Mr Nadoo left the project and EREC advertised the vacant post. Applications were received, and in due course a short list of seven was drawn up, including the applicant. Six of the candidates came from the ethnic minorities. The seventh was a white woman, Tracy Walters.

	Interviews were conducted on uniform lines and each candidate was marked by the panel. Ms Foster scored marginally more than the applicant. She came out top and was appointed to the post.

	One of the panel members, Miss Villaruel, thought that the applicant ought to have been appointed. She believed that the Asian majority on EREC did not want to see the advancement of Afro-Caribbeans to management level. The tribunal who heard her evidence, found that there was no evidence to support that contention.

	Having been informed he was not to be appointed the applicant lodged a protest with Mr Cramer, the chairman of EREC, and presented an Originating Application to the Industrial Tribunal on 18th December 1994 [“the first complaint”].

	In that application he raised two matters; the first was that he had been unlawfully discriminated against by EREC, in that Ms Walters had been appointed to the manager’s post instead of him; secondly, he alleged that the chairman of the management committee, Mr Alakija, had victimised him.

	Following Ms Walters appointment, so the tribunal found, the applicant resented that appointment and did not co-operate with her in running the scheme. As a result she had difficulties dealing with the project and with the applicant.

	This difficult relationship culminated in Ms Walters administering an oral warning to the applicant on 23rd January 1995 about his undermining her position as his line manager. Following that warning the applicant presented a further complaint to the tribunal on 11th March 1995 alleging victimisation by both EREC and Ms Walters [“the second complaint”].

	Both complaints came on for hearing together before the London (North) Industrial Tribunal on 4th to 6th September 1996.

The Industrial Tribunal decisions
The tribunal dismissed the first complaint. Directing themselves in accordance with the well-known guidance to be found in the judgment of Neill LJ in King v Great Britain China Centre [1992] ICR 516, 528F-529C, the tribunal found that EREC had provided a satisfactory explanation for the appointment of Ms Walters in preference to the applicant on the grounds that she had scored marginally better than him in a properly conducted selection exercise. The separate claim of victimisation against Mr Alakija was also dismissed.

	However, the second complaint of victimisation was upheld. The tribunal’s reasoning was as follows. It found that Mr Cramer did not deal satisfactorily with the resentment engendered by Ms Walters’ appointment to the project manager’s role. He allowed the situation to fester and when Ms Walters tried to bring the matter to her manager’s attention she was informed that it was extremely sensitive because the applicant had already made an application to the Industrial Tribunal. As a result of this Ms Walters felt that the situation was intolerable and she wished to show the applicant that she was now in charge of the project and was his line manager. Accordingly, after consultation with Mr Cramer, who gave her no assistance in dealing with the matter, she saw the applicant privately on 23rd January and gave him the oral warning.

	The tribunal found that in so doing Ms Walters failed to follow EREC’s internal disciplinary procedure, which required that where an oral warning was being considered the matter should be referred to a panel from the personnel department, which should decide how the matter should proceed after considering all the circumstances. Mr Cramer accepted in evidence that this was not a proper disciplinary matter and he removed the complaint from the applicant’s file.

	The tribunal expressed their conclusions in paragraphs 7 to 8 of their reasons in this way:

“7	It is quite clear to us that the reason why the matter was not dealt with in accordance with the procedures was due to the fact that the Applicant had already issued proceedings in this Tribunal and the management were afraid of exacerbating the situation. Miss Tracy Walters therefore was left without proper guidance and because of the situation decided to issue the oral warning which is the basis of this claim.
8	We find on these facts therefore that the Applicant was victimised contrary to section 2 of the Race Relations Act 1976 in that he was disciplined as a result of him asserting a right under the Race Relations Act. Section 2(1) gives a person a right to claim victimisation if that person is treated less favourably if (a) he has brought proceedings against the discriminator or any other person under this Act .... Therefore we find the Applicant was victimised and is entitled to a remedy.”

The Law
The following provisions of the 1976 Act are material.

	S.2(1):

“(1) A person (“the discriminator”) discriminates against another person (“the person victimised”) in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has-
(a)	brought proceedings against the discriminator or any other person under this Act. ...
	(2) Subsection (1) does not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith.”

	S.4(2):

	“(2) It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee-
	...
	(c) 	by dismissing him, or subjecting him to any other detriment.”

	S.32 reads:

“(1) Anything done by a person in the course of his employment shall be treated for the purposes of this Act (except as regards offences thereunder) as done by his employer as well as by him, whether or not it was done with the employer’s knowledge or approval.
...
	(3)  In proceedings brought under this Act against any person in respect of an act alleged to have been done by an employee of his it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing in the course of his employment acts of that description.”

	The applicantion of s.2(1)(a) of the Act was considered by the Court of Appeal in Aziz v Trinity Street Taxis Ltd [1988] IRLR 204. The following principles emerge:

(1)	Has the applicant done a protected act? Here, the protected act was the applicant’s first complaint to the Industrial Tribunal.

(2)	Has the applicant been less favourably treated than an employee who had not done the relevant protected act?

(3)	If so, was the respondent’s motive for applying that treatment to the applicant caused by his having done the protected act?

	In Aziz, the applicant succeeded in surmounting the first two hurdles but failed at the third, the question of causation.

The Appeal
In support of the appeal Mr Butterworth takes the following points:

(1)	That the respondent would have treated an employee who had not done the protected act in the same manner, notwithstanding that their internal procedures were not followed.

(2)	The applicant failed to establish any causative link between the treatment complained of, that is the oral warning administered by Ms Walters, and the protected act.

(3)	The tribunal failed to give any reasons as to why the claim did not fail under s.2(2) of the Act, the “good faith” provision.

(4)	The tribunal failed to identify which of the two respondents, EREC and Ms Walters, was liable for victimising the applicant, and failed to give reasons as to:

(a)	why they considered that Ms Walters was acting in the course of her employment (s.32(1)); and
(b)	why EREC had not made out the statutory defence under s.32(3).

Conclusion
We shall take each of the grounds of appeal in turn.

(1)	The tribunal found expressly in paragraph 7 of their reasons that the reason why the matter was not dealt with in accordance with the internal procedures, that is to refer it to a panel from the personnel department, was because the applicant had issued the first complaint. From this we infer that the tribunal was finding that an employee who had not done the protected act would have been dealt with in accordance with that procedure, rather than being dealt with directly by the very manager who was complaining about the applicant’s behaviour. It is accepted by Mr Butterworth that the hypothetical comparator test may be applied.

(2)	Causation. In our judgment the tribunal concluded, and was entitled to conclude, that it was precisely because EREC’s senior management regarded the matter as sensitive as a result of the applicant making his first complaint, and due to management’s failure to support Ms Walters and advise her, that she was left in the position where she felt that she had no option but to breach the internal procedures by administering the oral warning herself. But for the first complaint management would have dealt with the matter by referring Ms Walters’ complaint to a panel from the personnel department. That is how an employee who had not done the protected act would have been treated. It seems to us that these were findings which were open to the Industrial Tribunal. They cannot be characterised as perverse, as Mr Butterworth submits.

(3)	There is some dispute as to whether the bad faith point under s.2(2) of the Act was taken below, however, assuming that it was, we infer from the tribunal’s reasons for dismissing the first complaint, that it did not find that the first allegation there made, that the applicant had been unlawfully discriminated against by EREC on the grounds of his race in the appointment of Ms Walters, a white female, to the project manager’s post, was made falsely and in bad faith. Secondly, although the complaint of victimisation against Mr Alakija was misconceived as a matter of law, since no protected act had taken place before the matters complained of against him, again, there is no suggestion in the tribunal’s reasons that this complaint was made mala fide.

(4)	It is correct to say that the tribunal’s decision and reasons do not specify which of the two respondents is liable for the victimisation. They held:

“The unanimous decision of the Tribunal is that the Applicant was victimised by Tracy Walters when she disciplined him on 23 January 1995.”

	By this we understand the tribunal to be saying that Ms Walters victimised the applicant in the course of her employment with EREC, and that EREC is vicariously liable for that act of victimisation under s.32(1) of the Act, there being no grounds for holding that EREC had established the statutory defence under s.32(3).

	Again, there is a dispute between the representatives as to whether either of these points under s.32 were taken below. Even if they were, we are quite satisfied on the tribunal’s findings that there is no question of Ms Walters having acted outside the course of her employment in administering the oral warning to the applicant, applying the approach of the Court of Appeal in Jones v Tower Boot Co Ltd [1997] IRLR 168; nor can we see any evidential basis for concluding that EREC had established the statutory defence under s.32(3) by showing that it had taken all reasonably practicable steps to prevent Ms Walters acting as she did. On the contrary, it was the lack of advice and guidance from senior management which led her to take matters into her own hands.

	In these circumstances we have concluded that there are no grounds in law for interfering with this tribunal’s decision that both respondents are liable to the applicant in the sum of £750.00 by reason of having victimised him contrary to s.2(1)(a) of the Act.

	Accordingly, the appeal is dismissed.