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United Kingdom Employment Appeal Tribunal |
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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Law Society v. Bahl [2003] UKEAT 1056_01_3107 (31 July 2003) URL: http://www.bailii.org/uk/cases/UKEAT/2003/1056_01_3107.html Cite as: [2003] UKEAT 1056_01_3107, [2003] IRLR 640, EAT 1056/01, EAT/1056/01, [2003] UKEAT 1056_1_3107 |
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| At the Tribunal | |
| On 7-11 July 2003 | |
Before
THE HONOURABLE MR JUSTICE ELIAS
MR D J HODGKINS CB
MR D A C LAMBERT
| APPELLANT | |
| RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
| For the Appellant | MR R de MELLO (Of Counsel) and MR T BROWNE (Of Counsel) Instructed by: Messrs Khan's Solicitors 165 Ley Street Ilford Essex IG1 4BL |
| For the Respondent | MR PAUL GOULDING QC and MS DINAH ROSE (Of Counsel) Instructed by: Messrs Herbert Smith Solicitors Exchange House Primrose Street London EC2A 2HS MS INGRID SIMILER (Of Counsel) Instructed by: Messrs Fox Williams Solicitors City gate House 39-45 Finsbury Square London EC2A 1UU |
THE HONOURABLE MR JUSTICE ELIAS:
Introduction.
"We regret that we have been driven to the conclusion that the Vice President resorted at times to bullying tactics. She treated the staff without due consideration demanding immediate response to her own wishes without regard to their other duties. Her treatment of staff was at times demeaning and humiliating and at other times offensively aggressive. In many ways, she usurped the Secretary General's role as head of staff and introduced an atmosphere of fear and confusion in the line of command."
The hearing before the Employment tribunal
The alleged areas of discrimination.
"Whether the respondents unlawfully discriminated against Kamlesh Bahl contrary to section 1(1)(a) and 11 of the Race Relations Act and/or section 1(1)(a) and 12 of the Sex Discrimination Act by:
(i) the way in which the respondents dealt with the complaints against Kamlesh Bahl in breach of the Law Society's Dignity at Work Policy as set out at paragraph 7 of the Originating Application, namely:
(a) no thorough and immediate investigation of the complaints. Kamlesh Bahl was not informed of the details of the complaints for some time;
(b) confidentiality was maintained in the case of the complainants, but not Kamlesh Bal, nor in relation to the complaints or the procedure followed to investigate them; and
(c) those investigating (Robert Sayer, Jane Betts and Jean Johnson) were connected with the complaints. All three had a clear conflict of interest in investigating the complaints against Kamlesh Bahl.
(ii) making public the complaints against Kamlesh Bahl and the report of Lord Griffiths' findings;
(iii) failing to accord Kamlesh Bahl a right of appeal;
by breaching the requirements of natural justice and Kamlesh Bahl's right to a fair hearing by not giving Kamlesh Bahl sufficient time to
respond to the complaints made against her."
18. In addition to these six so-called 'issues' Dr. Bahl also identified thirty-one factual allegations of discrimination. These allegations were provided in response to a request by the respondents for full particulars of each and every allegation of discrimination. At a preliminary hearing for directions, Dr. Bahl had been ordered to answer this request, and she did so. It was contended before the employment tribunal that the only issues on which the tribunal could find discrimination were the original six allegations of discrimination. The respondents before the tribunal argued that none of the other thirty-one allegations could constitute an independent ground for finding discrimination, although they accepted that they were relevant evidentially when the tribunal considered the six principal issues. The tribunal considered certain authorities and rejected this contention. They concluded that they should consider whether or not there was unlawful discrimination in relation to each of these thirty-one factual allegations as well as in relation to the original 'issues'. That decision is not the subject of any appeal before us.
19. We will not set out the thirty-one detailed factual matters in respect of which allegations of discrimination were made, but we append them as an appendix to this judgment. (In fact there are various sub-grounds even in these thirty-one and we are told that in total there were over seventy separate specific complaints.) Suffice it to say that it has been alleged that virtually every act or decision taken in connection with the making and hearing of the complaints of bullying has been identified by Dr. Bahl. Some of the allegations were little short of ludicrous. For example, Dr. Bahl contended that she was discriminated against by the Law Society by being given insufficient time to prepare her response to the bullying complaints. This was despite the fact that the timetable had been set by Lord Griffiths and had been agreed by all counsel, including Dr. Bahl's own counsel. Similarly, she alleged unlawful discrimination arising out of the fact that the report was published, even though she had agreed that it should be; and also that she could not appeal the findings of Lord Griffiths notwithstanding that it had been accepted in advance that she would only be allowed to do so if the findings were alleged to be perverse. It assisted neither her case nor the tribunal's task for allegations to be showered on the appellants in such an undiscriminating way.
The Findings of Fact
"The senior managers and I are experiencing some problems in our relations with the Deputy Vice President, whose leadership style is proving to be highly authoritarian and confrontational rather than collaborative. Two members of the management team have been deeply upset by her style, others have developed a coping mechanism of 'giving as good as you get' and the rest are beginning to disengage. Until last week I have tried to mediate and deal with each incident individually but now the overall problem seems to be building up into something considerably more serious.
There is a growing sense of disappointment and frustration that the relationship with the putative head of the executive committee is not working better. If not dealt with promptly, the result could be to the detriment of the essential team spirit between Council members and staff that we have tried (with considerable success) to build over the past two years."
"I think we need to tackle the problems caused by the behaviour towards the staff of the Deputy Vice President. I have, as you know, found her conduct towards me unacceptable on a number of occasions, and I have equal concerns about her conduct towards a number of other members of my Directorate. I know from informal conduct [sic] with colleagues that I am not the only Director who has encountered similar problems.
I think it may now be necessary for me to initiate a formal complaint under the Dignity at Work Policy, both in respect of my own position and on behalf of others in the Directorate. However, I recognise that this is a serious step. I would be grateful, therefore, for the opportunity to discuss it with you before taking matters any further."
"As I said last Thursday, I don't want to fall out with you. I had an issue raised with me by a member of staff about the way you had treated them. Fortunately they did not want to make it official provided I raised it with you. If I had not and an official complaint had been made by a member of staff about the way you treated them it would have caused embarrassment not only to you but to the Society and I would have been at fault. I hope you will accept that. If so then I suggest we put it behind us….
We have both got more important things to spend our energies on. If you support me on what I want to achieve I will support you. That offer is on the table….
So do we have peace, will you work with me and put last week behind us or not? If the answer is yes then please accept that we both have different strengths. You can get the beurocracy [sic] under control, I have an almost infinite range of ideas, some good some impracticable but I can throw them out like a machine gun. Let's work together to set up some dedicated teams to try them out. If half of them work it would transform the Society within ten months. If you don't want to be part of that I'll do it on my own. I prefer you onboard but it has to be on the basis that we have to adopt a more active and imaginative approach then we have at present."
"This was an important email in our judgment, hence the length of the quotation. It had all the hallmarks of an ultimatum. We consider that Robert Sayer was content to tolerate Kamlesh Bahl's behaviour until the point where the staff complaints about it impinged directly upon him and his objectives for his presidency. His message in the email was clear. Unless Kamlesh Bahl reined in or heeded his instruction (as Michael Napier recorded in his notes of the meeting) to: "take note and ease off", she would be cut loose and left to her own devices. Contrary to his assertion, we find this was anything but a conciliatory email. The cooling off between them that followed was due to his belief, well founded as events transpired, that Kamlesh Bahl could damage both the Law Society and his position as President by her behaviour."
"We cannot accept that any reasonably competent senior employee could hold out such reassurance nor that a competent solicitor holding the officer of President of the Law Society would lend himself to it, without having clearly assessed and weighed its implications. They did not do so recklessly."
"Jane Betts joined the meeting 1.5 hours after the schedule time."
"Jane Betts sent a statement of the Special Committee. She represented that it was a complaint "on behalf of all staff" and offered to act as a witness at the inquiry. It was a substantial analysis of the matters entitled "Complaints against Kamlesh Bahl – discussion points". Bearing in mind the history of the matter and the attempts made to raise issues of behaviour with Kamlesh Bahl it was appropriate for Jane Betts to deal with the issues extensively. However the use of emotive language, and graphic metaphor gave her document the flavour of a personal attack on Kamlesh Bahl."
The tribunal then set out certain phrases which it subsequently relied upon as evidence of race and sex discrimination. We deal with these later.
"…we found it …inconceivable that there could have been any member of the Law Society staff who, upon hearing that announcement, did not immediately realise that the meeting concerned the complaints against Kamlesh Bahl. To that extend the tannoy message was a clear reference to her and would have been embarrassing and humiliating."
The Law
The statutory scheme.
Section 1(1)(a) of the RRA defines direct race discrimination as follows:
"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."
"Racial grounds" are defined at section 3(1) of the RRA as including "colour, race, nationality or ethnic or national origins."
"A comparison of the case of a person of a particular racial group with that of a person not of that group under section 1(1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."
The parallel provisions in the SDA, concerning sex discrimination, are to be found in s1(1)(a) and s5(3).
1. That Kamlesh Bahl had been treated less favourably by Robert Sayer and Jane Betts than a white person and/or a man was or would have been treated in the same or materially similar circumstances;
2. That the less favourable treatment had been afforded to Kamlesh Bahl on racial and/ or gender grounds; and
3. That through such treatment, Kamlesh Bahl had been subjected to a detriment.
Using the nomenclature of Lord Nicholls in the case of Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] IRLR 285, we will refer to the first issue as the "less favourable treatment" issue, and the second as the "reason why" issue.
Direct discrimination: undisputed principles.
"Section 2 should be read in the context of section 1. Section 1(1)(a) is concerned with direct discrimination, to use the accepted terminology. To be within section 1(1)(a) the less favourable treatment must be on racial grounds. Thus, in every case it is necessary to inquire why the complainant received less favourable treatment. This is the crucial question. Was it on grounds of race? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job? Save in the obvious cases, answering the crucial question will call for some consideration of the mental process of the alleged discriminator. Treatment, favourable or unfavourable, is a consequence which follows from a decision. Direct evidence of a decision to discriminate on racial grounds will seldom be forthcoming. Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances."
Similar observations were made by Lord Browne Wilkinson (p.508D). The observations of Lord Nicholls were adopted and followed by Lord Rodger in Shamoon v Chief Constable of the RUC [2003] ICR 337 at para134.
"As [Lord Brightman] put it in Ministry of Defence v Jeremiah [1980] QB 87, 104B, one must take all the circumstances into account. This is a test of materiality. Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment? An unjustified sense of grievance cannot amount to "detriment": Barclays Bank plc v Kapur and others (No 2) [1995] IRLR 87. But, contrary to the view that was expressed in Lord Chancellor v Coker and Osamor [2001] IRLR 116 on which the Court of Appeal relied, it is not necessary to demonstrate some physical or economic consequence."
"Under s.54 of the 1976 Act, the complainant is entitled to complain to the Tribunal that a person has committed an unlawful act of discrimination, but it is the act of which complaint is made and no other that the Tribunal must consider and rule upon. If it finds that the complaint is well founded, the remedies which it can give the complaint under s.56 (1) of the 1976 Act are specifically directed to the act to which the complaint relates. If the act of which complaint is made is found to be not proven, it is not for the Tribunal to find another act of racial discrimination of which complaint has not been made to give a remedy in respect of that other act."
Balcombe LJ made observations to like effect: see para 33.
Two disputed issues.
"These two appeals demonstrate the importance, in my opinion, when dealing with complaints under the 1975 Act and the other anti-discrimination Acts, of keeping in mind that they are intended to combat discrimination. They are anti-discrimination statutes. Absent discrimination, objectionable conduct by employers must be countered by other means than complaints under these Acts."
Unreasonable treatment and discrimination.
"The reasoning of the industrial tribunal on this issue is wholly defective. The Act of 1976 requires it to be shown that the complainant has been treated by the person against whom the discrimination is alleged less favourably than that person treats or would have treated another. In deciding that issue, the conduct of the hypothetical reasonable employer is irrelevant. The alleged discriminator may or may not be a reasonable employer. If he is not a reasonable employer he might well have treated another employee in just the same unsatisfactory way as he treated the complainant in which case he would not have treated the complainant "less favourably" for the purposes of the Act of 1976. The fact that, for the purposes of the law of unfair dismissal, an employer has acted unreasonably casts no light whatsoever on the question whether he has treated the employee "less favourably" for the purposes of the Act of 1976. I cannot improve on the reasoning of Lord Morison, delivering the opinion of the court, who expressed the position as follows, 1997 S.L.T. 281, 284:
"The requirement necessary to establish less favourable treatment which is laid down by section 1(1) of the Act of 1976 is not one of less favourable treatment than that which would have been accorded by a reasonable employer in the same circumstances, but of less favourable treatment than that which had been or would have been accorded by the same employer in the same circumstances. It cannot be inferred, let alone presumed, only from the fact than an employer has acted unreasonably towards one employee, that he would have acted reasonably if he had been dealing with another in the same circumstances."
"His case was that the evidence showed two critical things. One was the preconceived hostility to him: this depended on matters of fact which it was for the industrial tribunal to ascertain or refute on the evidence placed before them. The other was a racial bias against him evidenced by such hostility: this was a matter of inference for the industrial tribunal if and in so far as it found the hostility established. Experience shows that the relationship between the two may be subtle. For example, a tribunal of fact may be readier to infer a racial motive for hostility which has been denied but which it finds established than for hostility which has been admitted but acceptably explained. The industrial tribunal in paragraph 5 of its reasons directed itself correctly in law about this, with one arguable exception: it concluded the paragraph with this remark:
"If an employer behaves unreasonably towards a black employee, it ought not to be inferred, without more, that the reason for this is attributable to the employee's colour; the employer might very well behave in a similarly unreasonable fashion to a white employee."
As Neill LJ pointed out in King, such hostility may justify an inference of racial bias if there is nothing else to explain it: whether there is such an explanation as the industrial tribunal posit here will depend not on a theoretical possibility that the employer behaves equally badly to employees of all races, but on evidence that he does."
The relevance of unreasonable treatment.
The problems of proof.
"Frequently, of course, a woman may claim that her employer discriminated against her in a situation where she cannot point to any actual case in which a male employee has been treated more favourably. What she says is that the employer treated her less favourably than he would have treated a male employee in the same circumstances. The words "would treat" in article 3(1)(a) specifically recognise that she can do this. In a contested claim before a tribunal the applicant has to prove how her employer would have treated a male employee in circumstances which, ex hypothesi, have not actually occurred. That male employee is often referred to as a "hypothetical comparator". In some cases the applicant's task may be relatively easy. For example, she may be able to point to an established policy or practice of the employer that involves treating women less favourably than men in virtually all circumstances. By proving the existence of the policy or practice the applicant may hope to satisfy the tribunal that, in the (unique) situation in which she found herself, her employer treated her less favourably than he would have treated a male employee if the same had happened to him. In many cases, however, the applicant leads more general evidence and invites the tribunal to find facts from which it can infer that her employer treated her less favourably than he would have treated a male employee in the same circumstances.
The task facing an applicant in such cases may well be difficult. Indeed it was to try to obviate these difficulties that at one time employees ran the argument that it was sufficient if an applicant could satisfy the tribunal that her employer had treated her as no reasonable employer would have treated an employee. In Zafar v Glasgow City Council 1996 SC 502, 505I - 506C that approach was stamped out, even though it was recognised that suitable evidence might be difficult to come by in these cases. Some of the arguments advanced in favour of the appellant's interpretation of article 7 echo this discredited plea ad misericordiam. They too must be rejected."
The relationship between the two issues.
"I turn to consider the application of these provisions in practice. In deciding a discrimination claim one of the matters employment tribunals have to consider is whether the statutory definition of discrimination has been satisfied. When the claim is based on direct discrimination or victimisation, in practice tribunals in their decisions normally consider, first, whether the claimant received less favourable treatment than the appropriate comparator (the 'less favourable treatment' issue) and then, secondly, whether the less favourable treatment was on the relevant proscribed ground (the 'reason why' issue). Tribunals proceed to consider the reason why issue only if the less favourable treatment issue is resolved in favour of the claimant. Thus the less favourable treatment issue is treated as a threshold which the claimant must cross before the tribunal is called upon to decide why the claimant was afforded the treatment of which she is complaining.
No doubt there are cases where it is convenient and helpful to adopt this two step approach to what is essentially a single question: did the claimant, on the proscribed ground, receive less favourable treatment than others? But, especially where the identity of the relevant comparator is a matter of dispute, this sequential analysis may give rise to needless problems. Sometimes the less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue. The two issues are intertwined.
The present case is a good example. The relevant provisions in the Sex Discrimination (Northern Ireland) Order 1976 are in all material respects the same as those in the Sex Discrimination Act 1975 which, for ease of discussion, I have so far referred to. Chief Inspector Shamoon claimed she was treated less favourably than two male chief inspectors. Unlike her, they retained their counselling responsibilities. Is this comparing like with like? Prima facie it is not. She had been the subject of complaints and of representations by Police Federation representatives, the male chief inspectors had not. This might be the reason why she was treated as she was. This might explain why she was relieved of her responsibilities and they were not. But whether this factual difference between their positions was in truth a material difference is an issue which cannot be resolved without determining why she was treated as she was. It might be that the reason why she was relieved of her counselling responsibilities had nothing to do with the complaints and representations. If that were so, then a comparison between her and the two male chief inspectors may well be comparing like with like, because in that event the difference between her and her two male colleagues would be an immaterial difference.
I must take this a step further. As I have said, prima facie the comparison with the two male chief inspectors is not apt. So be it. Let it be assumed that, this being so, the most sensible course in practice is to proceed on the footing that the appropriate comparator is a hypothetical comparator: a male chief inspector regarding whose conduct similar complaints and representations had been made. On this footing the less favourable treatment issue is this: was Chief Inspector Shamoon treated less favourably than such a male chief inspector would have been treated? But, here also, the question is incapable of being answered without deciding why Chief Inspector Shamoon was treated as she was. It is impossible to decide whether Chief Inspector Shamoon was treated less favourably than a hypothetical male chief inspector without identifying the ground on which she was treated as she was. Was it grounds of sex? If yes, then she was treated less favourably than a male chief inspector in her position would have been treated. If not, not thus, on this footing also, the less favourable treatment issue is incapable of being decided without deciding the reason why issue. And the decision on the reason why issue will also provide the answer to the less favourable treatment issue.
This analysis seems to me to point to the conclusion that employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was. Was it on the proscribed ground which is the foundation of the application? That will call for an examination of all the facts of the case. Or was it for some other reason? If the latter, the application fails. If the former, there will be usually be no difficulty in deciding whether the treatment, afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others.
The most convenient and appropriate way to tackle the issues arising on any discrimination application must always depend upon the nature of the issues and all the circumstances of the case. There will be cases where it is convenient to decide the less favourable treatment issue first. But, for the reason set out above, when formulating their decisions employment tribunals may find it helpful to consider whether they should postpone determining the less favourable treatment issue until after they have decided why the treatment was afforded to the claimant. Adopting this course would have simplified the issues, and assisted in their resolution, in the present case."
"It is, I think, open to question whether the issue of less favourable treatment should be examined separately from the third issue with which the tribunal dealt under Article 3(a) namely which was whether the treatment which the appellant received was "on the ground of her sex". The third issue is the primary question. It directs attention to the question why the claimant was treated as she was. It calls for an examination of all the facts. If the two issues are to be examined separately, it may be helpful to for this question to be addressed first."
"Parliament has not spelled out what constitute "the relevant circumstances" in article 7. The meaning of the words must therefore be deduced from the context. They occur in a provision prescribing how anyone administering the Order is to determine whether an alleged discriminator treated a woman less favourably than a man on the ground of her sex under article 3(1). So "the relevant circumstances" must be those circumstances that are relevant for that purpose. In Nagarajan v London Regional Transport [2000] 1 AC 501, 510H - 511B, Lord Nicholls of Birkenhead pointed out that in every case of alleged discrimination it is necessary to enquire why the complainant received less favourable treatment. As he went on to say, save in obvious cases, this will call for some consideration of the mental processes of the alleged discriminator in order to identify the grounds of his decision. I accordingly infer that "the relevant circumstances" in article 7 are those which the alleged discriminator takes into account when deciding to treat the woman as he does or when deciding to treat the man as he treats, or would treat, him."
The implications of Shamoon.
Reasons
"It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of a refined legal Draughtsmanship but it must contain an outline of the story which has given rise to the complaint and a summary of the tribunals basic factual conclusions and a statement of the reasons which led them to reach the conclusion which they do so on those basic facts. The parties are entitled to be told why they have won or lost. There should be a sufficient account of the facts and the reasoning to enable EAT or on further appeal this court to see whether the question of law arises……"
"More often racial discrimination will have to be established, if at all, as a matter of inference. It is of the greatest importance that the primary facts from which such inference is drawn are set out with clarity by the Tribunal in its fact-finding role, so that the validity of the inference can be examined. Either the facts justifying such inference exist or they do not, but only the Tribunal can say what those facts are. A mere intuitive hunch, for example, that there has been unlawful discrimination, is insufficient without facts being found to support that conclusion."
He added later in his judgment (paragraph 47) that:
"…in my judgment it is not fair to those found guilty of racial discrimination that…an inference should stand in the absence of primary facts that would support it."
"There is at least one further obstacle to Mr Underhill's stalwart defence of the industrial tribunal's decision. The courts have repeatedly told appellants that it is not acceptable to comb through a set of reasons for hints of error and fragments of mistake, and to try to assemble these into a case for oversetting the decision. No more is it acceptable to comb through a patently deficient decision for signs of the missing elements, and to try to amplify these by argument into an adequate set of reasons. Just as the courts will not interfere with a decision, whatever its incidental flaws, which has covered the correct ground and answered the right questions, so they should not uphold a decision which has failed in this basic task, whatever its other virtues."
"In my judgment the Employment Appeal Tribunal were correct to hold that there was an error of law in the decision of the Employment Tribunal as identified by the Employment Appeal Tribunal. In a situation in which it is expressly found that there was no deliberate or conscious racial discrimination, it is necessary, before drawing the inference sought to be drawn, to set out the facts relied on and the process by which the inference is drawn. In some cases that process of reasoning need only be brief; in other cases more detailed reasoning will be required. The Employment Appeal Tribunal approached the matter in this way:
"... we do suggest that the less obvious the primary facts are as pointers or the more inconclusive or ambivalent the explanations given for the events in issue are as pointers, the more the need for the Employment Tribunal to explain why it is that from such primary facts and upon such explanations the inference that they have drawn has been drawn. The more equivocal the primary facts, the more the Employment Tribunal needs to explain why they have concluded as they have."
At page 11:
"As we have mentioned the tribunal repeatedly said that there had been no intention to discriminate. That, of course, is not in itself an answer but it is likely to lead to a position in which the reasons for the inference of racial discrimination need to be fully explained."
"Justice will not be done if it is not apparent to the parties why one has won and the other has lost"
"Where permission is granted to appeal on the grounds that the judgment does not contain adequate reasons, the appellate court should first review the judgment, in the context of the material evidence and submissions at the trial, in order to determine whether, when all of these are considered, it is apparent why the judge reached the decision that he did. If satisfied that the reason is apparent and that it is a valid basis for the judgment, the appeal will be dismissed…."
The EAT's jurisdiction
"It is common ground that an error in law is made by a tribunal if it finds less favourable treatment on racial grounds where there is no evidence or material from which it can properly make such in inference. See North West Thames Regional Health Authority v Noone [1988] ICR 813, [1988] IRLR 530 at p.824 of the former report. Although an employment tribunal is less formal in its procedures than a court of law and is not bound by the rules of evidence, it must be satisfied that the complaint is proved, on the balance of probabilities, by the person who makes it. In the absence of direct evidence on an issue of less favourable treatment on racial grounds, the tribunal may make inferences from other facts which are undisputed or are established by evidence. However, in the absence of adequate material from which inferences can be properly made, a tribunal is not entitled to find a claim proved by making unsupported legal or factual assumptions about disputed questions of less favourable treatment on racial grounds. This is so whether the discrimination is alleged to arise from conscious or subconscious influences operating in the mind of the alleged discriminator."
Summary of the disputed legal issues.
This does not mean that it is irrelevant whether an explanation is reasonable or not. The more obvious the 'innocent' explanation for the treatment, the stronger should be the evidence to displace it. Conversely, if the explanation given for the treatment is unreasonable or unsatisfactory then that may justify the tribunal inferring that it is not genuinely held. If there is no other cogent explanation arising from the evidence for the treatment complained of, then the rejection of the reason may (not must) justify an inference of discrimination. If, however, the tribunal accepts that the reason given for the treatment is genuine, then unless there is evidence to warrant a finding of unconscious discrimination, such that the tribunal is really finding that the alleged discriminator has concealed the true reason even from himself, there will be no basis to infer unlawful discrimination at all. Tribunals can in a proper case make a finding of unconscious discrimination, but it is a significant finding for a tribunal to hold that they can read someone's mind better than the person himself, and they are not entitled to reach that conclusion merely by way of a hunch or speculation, but only where there is clear evidence to warrant it.
The conclusions of the tribunal on discrimination.
"we record our findings on both the six primary allegations and the 31 factual allegations. We then consider whether we may draw inferences of less favourable treatment and, if so, to what extent. …. We leave these to the end. We do so that we may be sure that our drawing of inferences is done, and may be seen to be done, in accordance with Qureshi, by looking at "the totality of [the] facts.""
130. In its factual analysis, the tribunal reaches certain conclusions as to whether Dr. Bahl has suffered what it terms a "detriment." In some cases this seems to mean less favourable treatment (notwithstanding that the tribunal states that it is leaving that issue to the end.) The concept of detriment is also used in some cases to mean disadvantage resulting from unreasonable treatment. By contrast there are numerous places where the tribunal concludes that there is no detriment because the treatment is reasonable and is no different to that which would have been meted out to a white male. This confuses detriment with discrimination. As we have said, there may be a detriment from reasonable and non-discriminatory treatment.
Having made findings of "detriment" the tribunal then considered the explanations for the treatment. In some cases it disbelieved them and in some cases it accepted them but considered them to be unreasonable. It then drew the inference that the treatment was less favourable than would have been accorded to a white male and also was on the proscribed grounds. We consider below the basis for those inferences.
Robert Sayer.
"that between 30 August and 9 December 1999 he did not attempt to have an informal discussion with Kamlesh Bahl about the complaint.
that on 9 December 1999 he was a member of the panel comprising three people who were all connected with the complaint of Russell Wallman some way.
that on 13 December 1999 he stalled over whether Kamlesh Bahl could see the papers that were to be put to Council or address Council herself."
No informal discussion.
"After 26 August 1999 there were no attempts to discuss the matter informally despite Ann Frazer's further complaints which she made to Robert Sayer. He had last spoken to Kamlesh Bahl about her conduct towards staff on 26 August 1999. His evidence was that her behaviour had improved for a short period after he had done so. He decided not to do so again.
If he had spoken to her there would have been the possibility of informal resolution. That treatment was to Kamlesh Bahl's detriment because the opportunity for early, informal resolution was not offered to her at that stage. Whether informal resolution would have succeeded, or whether the final outcome would have been materially different, is another matter."
Member of the Panel.
"These two allegations overlap to such an extent that they can properly be taken together. As a matter of fact the allegations are correct. The panel was convened and Kamlesh Bahl was not told of the complaint prior to the meeting. The procedure that was adopted was broadly in accordance with Bindmans' advice. However, Bindmans had referred explicitly to paragraph 6.10 of the Dignity at Work Policy, which required that a copy of the complaint be copied to the council member. This was not done. They also advised in emphatic terms that those investigating the complaint should not be "connected with the allegation in any way".
Implicit in all this was a requirement that the complaint be assessed objectively and that the panel should act fairly.
In our judgment a number of factors indicate that Robert Sayer and Jane Betts had decided that, as and when as formal complaint was raised, and whoever raised it, it would be treated as a complaint that required further investigation and action. Those factors were:
The lack of any attempt after 26 August 1999 to raise the potential of complaints informally with Kamlesh Bahl, despite the fact that there had been some improvement in her behaviour after that meeting.
The extensive discussions with MSF about bringing complaints forward.
The degree to which legal advice had been taken prior to a formal complaint being made.
The reassurances offered to MSF on the way any complaint would be handled.
There was, on our judgment, no objective assessment of the complaint on 9 December 1999. Despite Bindmans' advice all three of those who comprised the panel had, to a greater or lesser extent, been "connected with" Russell Wallman's complaint either as a witness to the behaviour about which he complained or in dealing with the consequences of it. Robert Sayer gave an explanation for the panel being thus comprised and having met and considered the complaint. It was that they had understood the concept of being "connected with" the complaints in a restricted way, as meaning only that the members of the panel should neither be a complainant nor an alleged perpetrator. That they did so was detrimental to Kamlesh Bahl who was entitled to the benefits of the Dignity at Work Policy, as well as to be subjected to its rigours, if appropriate.
We also appreciated it may have been the case that any panel of persons discharging the same function would have reached the same conclusion. Kamlesh Bahl accepted as much in cross-examination. We have not attempted to assess what the prospects for informal resolution, even at this stage, would have been if the matter had been considered by a panel who were not connected with the complaint in any way."
Stalling about the rights of Dr. Bahl to be given information and address the IEC.
"These allegations are closely allied. Robert Sayer did not, in fact, refuse either of these requests but said he would take legal advice on them. Kamlesh Bahl was a member of Council. Robert Sayer could not have thought for an instant that she was not entitled to see the documents or to place her views before the Council, when her own position was to be considered. The effect of saying that he wanted to take legal advice was to stall or temporise over these matters. By doing so he created a doubt that the requests would be granted. That was, to a limited extent, to Kamlesh Bahl's detriment at that time."
"As to there being no attempt at informal resolution Robert Sayer's explanation was that he could have spoken to Kamlesh Bahl but he did not want to fall out with her and that he did not want to make the wrong working relationship any worse.
When Robert Sayer had last spoken to Kamlesh Bahl about her behaviour it had improved, albeit briefly. It seemed to us that the natural, logical thing for Robert Sayer to do would have been to speak to Kamlesh Bahl informally. We would have expected the President at least to warn his Vice President in general terms of potential formal complaints when Ann Frazer reported further problems to him. It might well have been a difficult meting, but the failure to do so cried out for an explanation.
We have already rejected part of Robert Sayer's evidence on this point…. The explanation he gave for not speaking to Kamlesh Bahl again was weak to the point where it was not credible. Robert Sayer, above all, had no reason to be cowed by Kamlesh Bahl.
In our judgment, had the person complained of been a white person or male, then Robert Sayer would at least have attempted to deal with the matter informally.
The explanation Robert Sayer gave for believing that he was not "connected with" the complaint in any way when convening the panel was not satisfactory. Anybody receiving Bindmans' advice would realise that there was not justification whatsoever for such a restricted reading. That the Law Society's President, Secretary General and Director of Human Resources would choose to read it in such a way was astounding.
We came to the conclusion that had the person concerned been a white person or a man the Respondents would have taken particular care to ensure that an "unconnected" panel was convened.
Robert Sayer explained the he reasonably wanted to seek legal advice on Kamlesh Bahl's requests both to see the papers that were to be put before Council and to have an opportunity to speak at the meeting. As we have explained we did not accept that he believed he needed such advice at the time. The requests were obviously in line with all rules of natural justice."
"We have also found that Robert Sayer set his face against Kamlesh Bahl after the meeting of 28 August 1999. From then on, in our judgment, his actions had the effect of making the presentation of formal complaints more likely. We have found that he deliberately omitted to read her email on 8 September 1999. He did not, for that reason, respond to it. We found that he was informed about the process of taking legal advice from Bindmans to a greater extent than he admitted. We noted he had changed his evidence about the date when he alleged Jane Betts had warned him that MSF were preparing to submit a formal complaint. We found that Robert Sayer and Jane Betts were discussing the question of formal complaints from at least 15 November 1999 onwards. We found that Robert Sayer did tell Jane Betts to "get it sorted"….
We also too into account in assessing the way in which Robert Sayer treated Kamlesh Bahl the way in which John Young was treated. The comparison was restricted to two specific aspects. The informal raisings of allegations with the office holder and the conduct of the relevant Council meetings."
"Looking at the totality of the facts we have found, the explanations we have rejected and the respects in which we have found Robert Sayer's evidence wanting, we draw the inference that an effective cause of his treatment of Kamlesh Bahl was on both racial grounds and the ground of her sex.
In each of the allegations of detrimental treatment we have upheld we find that Kamlesh Bahl was treated less favourably by Robert Sayer than a white person or a man who would have been treated in similar circumstances. But for her race and sex she would not have been subjected to detriment in those respects.
We do not distinguish between the race or sex of the Applicant in reaching this conclusion. Our reason for that is simple. The claim was advanced on the basis that Kamlesh Bahl was treated in the way she was because she is a black woman. Kamlesh Bahl was the first office holder that the Law Society had ever had who was not both white and male. There was no basis in the evidence for comparing her treatment with that of a white female, or a black male, office holder. We can only draw inferences. We do not know what was in the minds of Robert Sayer and Jane Betts at any particular point. It is sufficient for our purposes to find, where appropriate, that in each case they would not have treated a white person or a man less favourably. If we need to refine our approach for the purposes of dealing with remedy the parties may address this issue at that stage."
Jane Betts.
"that on 9 December 1999 she was a member of the panel comprising three people who were all connected with the complaint of Russell Wallman in some way.
that on 13 December 1999 she breached confidentiality by confirming to Isabel De Sa that a complaint had been received about Kamlesh Bahl.
that on 15 December 1999 she did not alert the IEC that Andrew Hall's complaint was not validly made under the Dignity at Work Policy, nor of the need to follow the procedure that had been established.
that on 20 December 1999 she instructed Robin Lewis of Bindmans to make enquiries of the Union at the EOC about other allegations against Kamlesh Bahl.
that on 26 January 2000 she permitted the Union to broadcast a tannoy message to all staff."
Member of the Panel.
As to being a member of the panel of three, the tribunal set out their concerns in the passage recited above in relation to Robert Sayer.
Breach of confidentiality.
Their conclusions were briefly described as follows:
"Jane Betts did tell Isabel De Sa about the complaint against Kamlesh Bahl in response to a query which suggested that the latter knew of the complaint in any event. In our judgment the news of the complaint having been made formally was probably common knowledge to Law Society staff within a matter of hours. It was to Kamlesh Bahl's detriment that Jane Betts did confirm the complaint because at that stage there was still a likelihood that Kamlesh Bahl would have to work with Isabel De Sa and other Law Society staff. The Law Society and the named Respondents were all purporting to deal with the matter confidentially. In our judgment Jane Betts would have been more likely to have maintained confidentiality had the complaint involved a white person or a male. Her explanation for doing so was that Isabel De Sa seemed to know what was going on."
Andrew Hall's complaint was not validly made
"We came to the view that once Andrew Hall's complaint was put before the IEC it was inevitable that they would refer it to Council which was shortly to meet. The real issue was thus how it came to be before the IEC. That was wholly due to Jane Betts.
Jane Betts was an extremely well qualified and very experienced manger. She was entirely familiar with the circumstances of Andrew Hall leaving the Law Society 2 months earlier. She, above all, had been a key person in reviewing the Dignity at Work Policy and taking advice from Bindmans on how to apply it.
We came to the conclusion that Jane Betts would, in these circumstances, have recognised the problems with the complaint immediately. She would have taken this complaint to the IEC at this time irrespective of the race or sex of the person about whom the complaint was made. However she should have alerted the IEC that it was not valid or, at least, of the need to follow the procedure that had been established."
The EOC inquiries.
Permitting the tannoy announcement.
"This message was broadcast in general terms but there could have been no member of staff who was not aware that it referred to Kamlesh Bahl and complaints against her. It was broadcast after three emails to staff abut the presentation of such complaints and very shortly before the expiry of the extended deadline for presenting complaints.
By permitting the Union to broadcast to all staff in this way Jane Betts was facilitating the making of further complaints. Whilst the announcement of union meetings may have been standard practice the same was not true of meetings of all staff organised by the MSF. The announcement was detrimental of Kamlesh Bahl."
"Jane Betts [gave] no explanation for considering that she was not "connected with" the complaint of Russell Wallman. In effect Robert Sayer's unsatisfactory explanation was given on behalf of the panel.
Jane Betts' explanation for the, albeit limited breach of confidentiality, was that Isabel De Sa appeared to know what was going on. As an explanation for breaching the confidentiality this was inadequate. That there was a breach of any sort by Jane Betts and that the reason was so weak were also, of themselves, factors which supported our general conclusions about her attitudes and actions.
Jane Betts' explanation for not appreciating that Andrew Hall's complaint was one which could properly be determined under the Dignity at Work Policy was that she did not address her mind to the fact that Andrew Hall was an ex-employee. She added that the complaint had arisen because he was an ex-employee and that she understood he had left the Law Society because of Kamlesh Bahl. As we have held earlier we consider that she would have appreciated immediately the problems with the complaint. She had been concentrating on the Dignity at Work Policy and taking advice about it over several weeks. We reject her explanation for not having alerted the IEC about the problem.
Jane Betts was asked about giving permission for the broadcasting of the tannoy message. Her explanation was that she could see not reason to refuse it. It was an explanation that we rejected and, as we have said, caused us to question her motives."
"We also took into account Jane Betts' stated perception that Kamlesh Bahl was taking over her role. Understandably Jane Betts resented this. She, as we have found, kept Robert Sayer informed about the process by which the formal complaints came forward. It was she in whom Phillip Hamer detected a sense of triumph when she brought in the complaint from Andrew Hall to the IEC meeting at Carey Street on 15th December 1999. She commented to Lord Hunt about working closely with the Union.
In the case of Jane Betts we find that her use of language in the document she gave to the Special Committee and that she used at Lord Griffiths' Inquiry both give a clear indication that, perhaps unconsciously, her actions and omissions were on racial or gender based grounds. Her use of the expression that it was as if a culprit was to be found "and hands were going to be chopped off" to describe Kamlesh Bahl's behaviour to Lord Griffiths was the prime example of this. This phrase, descriptive of a sanction in Shariyah law, had clear racial overtones.
In evidence she apologised for speaking of Kamlesh Bahl's "quite girlish, charming chatter". She was unwilling when first challenged to acknowledge the obvious racial context of the word "lebensraum" or her statement to Michael Napier on his becoming Deputy Vice President that his arrival was like "the American forces relieving Belsen."
Jane Betts explained that she was a languages graduate and would use graphic imagery. There were many other examples of how she did so. The use of graphic language is possible without it having any basis on concepts related to race or gender. We well understand how in conversation expressions perhaps learnt in earlier life when awareness of the offence that certain terms can cause may unwittingly be used. We are alert not to attach too great a significance to an isolated usage however much we may deprecate it. In Jane Betts' case the language was used deliberately, repeatedly and graphically. Having weighed her explanation for using it we consider that it was another feature from which we might legitimately draw inferences.
Looking at the totality of the facts we have found, the explanations we have rejected and the respects in which we have found Jane Betts' evidence wanting, we draw the inferences that an effective cause of her treatments of Kamlesh Bahl was on both racial grounds and the ground of her sex.
In each of the allegations of detrimental treatment we have upheld we find that Kamlesh Bahl was treated less favourably by Jane Betts than a white person or a man who would have been treated in similar circumstances. But for her race and sex she would not have been subjected to detriment in those respects.
As with Robert Sayer we draw no distinction on the grounds of race and sex. We have found that some of Jane Betts' expressions betray a racial element. The comment about "girlish charming chatter" supports the inference that Jane Betts treated Kamlesh Bahl less favourably because Kamlesh Bahl is a woman."
"We find in respect of both Robert Sayer and Jane Betts that there was a substantial element of deliberation in the acts they did which were detrimental to Kamlesh Bahl. That is not to say that we find that they were consciously motivated by grounds of race or gender. On the balance of probabilities we find that they were not conscious of their behaviour towards them being, in part, motivated by her race or sex."
The factors supporting unlawful discrimination.
The grounds of appeal.
Challenges to the general approach.
These can be considered under five heads.
Failing to distinguish racial and sexual discrimination.
"We do not distinguish between the race or sex of the applicant in reaching this conclusion. Our reason for that is simple. The claim was advanced on the basis that Kamlesh Bahl was treated in the way she was because she is a black woman. Kamlesh Bahl was the first office holder that the Law Society had ever had who was not both white and male. There was no basis in the evidence for comparing her treatment with that of a white female, or a black male, office holder. We can only draw inferences. We do not know what was in the minds of Robert Sayer and Jane Betts at any particular point. It is sufficient for our purposes to find, where appropriate, that in each case they would have not treated a white person or a man less favourably. If we need to refine our approach for the purposes of dealing with remedy the parties may address this issue at that stage."
We do not accept that submission. In our view the tribunal did err in law in failing to distinguish between the elements of alleged race and sex discrimination. The result was that it failed to reach properly reasoned findings on the question whether Dr. Bahl had satisfied the tribunal – the burden being on her – that discrimination had occurred in respect of either ground. This would, in our view, be a sufficient basis for upholding these appeals even in the absence of any other error of law.
Failing to consider what was in the minds of the appellants.
Failing to identify less favourable treatment or to construct a hypothetical comparator.
Inadequate reasoning
Accordingly, in our view the tribunal did not give an adequately reasoned decision because it did not give proper consideration to the obvious possibility that the reason for any adverse treatment may have been the fact that both Mr Sayer and Mrs Betts had their own reasons, untainted by sex or race, for their conduct.
The finding of discrimination was inconsistent with the evidence.
We will consider the argument in respect of each of the individual appellants.
Robert Sayer
Jane Betts.
The language.
"There was a further tirade from Kamlesh to me in the ladies' toilets at the Bournemouth conference on the subject of Andrew Hall. I was embarrassed but also fascinated by her self-control. Once she had got her way she went back to quite girlish charming chatter and we went back into the Conference hall…."
Later she wrote:
"I spent much of early 1999 focussing on Russell Wallman and how to find enough "lebensraum" for him to continue working whilst KB was around."
Finally, she said that when Michael Napier had been voted into office as Deputy Vice President she had said to him
"only half jokingly, that his arrival was like the American forces relieving Belsen."
The other comment was Mrs Betts' statement to the Lord Griffiths about the way in which Dr. Bahl had treated Russell Wallman on one occasion:
"It was confrontational and it felt as though there was a culprit going to be found and blame was going to be apportioned and hands were going to be chopped off."
Accordingly, we accept that the tribunal was not entitled to conclude that there was discrimination, even with respect to the occasions where it rejected Jane Betts' explanation for her conduct.
John Young; an inappropriate comparator.
"We also took into account the way in which Robert Sayer treated Kamlesh Bahl in the way in which John Young was treated. The comparison was restricted to two specific aspects. The informal raising of allegations with the office holder and the conduct of the relevant Council meetings."
"The tribunal's decision is vitiated by two fundamental errors. First, it overlooked the fact that Superintendent Laird had no authority over the two male chief inspectors who were in different regions. So, if they continued to do assessments, this was not because of any decision which Superintendent Laird had taken to allow them to do so. He did nothing in relation to them - he did not "treat" them at all. For that reason, it was not open to the tribunal to find in terms of article 3(1)(a) that Superintendent Laird treated the appellant less favourably than he treated the two male chief inspectors."
Lord Scott made a similar analysis; see para.112.
Challenges directed to specific findings.
Robert Sayer.
Lack of informal discussion
Membership of the panel of three.
It is to be noted that the tribunal do not find that the explanation given by any of these individuals was not their genuine belief as to how the rules should be construed. It found the explanation of Robert Sayer and Jane Betts for holding that belief to be unsatisfactory. It was on that basis that it inferred unlawful discrimination.
The stalling allegation
Miscellaneous matters.
Mrs Betts.
Membership of the panel of three.
Breach of confidentiality to Isabel De Sa.
Failing to alert the IEC that Andrew Hall's complaint was not validly made.
Seeking information of the EOC
The tannoy broadcast.
Conclusions.
The out of time challenge.
The cross appeal.
Summary.
We uphold the appeals in this case and overturn the findings of unlawful discrimination against each of the individual appellants, Robert Sayer and Jane Betts. It follows that the liability of the Law Society also falls away.
We dismiss that part of the appeal which sought to challenge the tribunal's decision to extend time; and we also dismiss the cross appeal.
