Atabo v Kings College London & Ors James Newman Patricia Methven Madeleine Law

This is my long delayed judgment on the application by Sandra Atabo (the applicant) for permission to appeal against the decision of the Employment Appeal Tribunal (EAT) in a constitution chaired by its President, Elias J (sitting with Mr. P Gammon MDE and Mr. A Harris as its lay members) given on 23 February 2006. The EAT, at a preliminary, ex parte hearing, dismissed the applicant’s appeal against the decision of the Employment Tribunal (the Tribunal) for London South which, after a hearing lasting eight days (with a ninth day in chambers) had on 20 May 2005 promulgated a unanimous decision dismissing the applicant’s claims of sex / race discrimination, sexual harassment, victimisation and breach of contract brought against her former employer, Kings College London (hereinafter KCL), and three of its employees, James Newman, Patricia Metven and Madeline Law.

The delay in dealing with the matters derives, firstly, from the fact that on her initial appearance before me the applicant was not legally represented, and sought an adjournment, which I granted, to enable her to obtain legal advice and representation. When she appeared on the second occasion, by counsel, on 24 November 2006, it had become known to me that a different constitution of this court was due to deliver reserved judgments dealing directly with an issue central to the applicant’s case, and identified in this court by Peter Gibson LJ in the well-known case of Igen Limited v Wong [2005] EWCA Civ 142, [2005] IRLR 258 (hereinafter referred to as Igen ) namely the proposition that in cases of sex and race discrimination the court or tribunal needed to go through a two stage process, first identifying the less favourable treatment complained of (where the burden of proof is on the applicant) and then identifying the reason for that treatment (where the burden of proof is on the respondent to show that his / her / its conduct is not discriminatory).

In these circumstances, I decided on 24 November 2006 that the fairest and most economic way of dealing with the appellant’s application was to hear counsel and then to adjourn to await the outcome of the three cases in which judgment was awaited from this court. I also suggested that any submissions which counsel might have on those cases should be addressed to me in writing in order to save the cost of a further appearance.

The judgments of this court in the three cases are: (1) Appiah and another v Governing Body of Bishop Douglass Roman Catholic High School [2007] EWCA Civ 10 (hereinafter Appiah) ; (2) Brown v London Borough of Croydon and Johnston [2007] EWCA Civ 32 (hereinafter Brown) ; and (3) Madarassy v Nomura International PLC [2007] EWCA Civ 33 (hereinafter Madarassy ). Judgment in all three cases was handed down on 26 January 2007. In each case the constitution comprised Mummery, Laws and Maurice Kay LJJ. Madarassy was a sex discrimination appeal; Appiah and Brown were race discrimination appeals. Brown and Madarassy were appeals from the EAT: Appiah was an appeal from the county court in a school exclusion case. The judgments in Madarassy , which was informally treated as the lead case, and Brown were given by Mummery LJ: that in Appiah was given by Maurice Kay LJ. Although judgments were handed down separately, the three cases were heard together and cross-refer to one another. Together, they plainly represent an authoritative statement of the current law, to which I will turn once I have set out the facts of the applicant’s case.

The judgment of the Tribunal runs to some 168 paragraphs over 33 pages. It examines the facts in very careful detail. Such an exercise is not necessary for the purposes of this application, and I therefore propose to take the essential facts from the judgment of the EAT.

The applicant, who described herself as British of black African origin) was employed by KCL for six months from 30 September 2003 to 9 March 2004 in its Information Services and Systems Directorate (ISSD) as a Legal Compliance Assistant. She was employed for a probationary period of six months which was not extended. The reason given by KCL for not extending the period was that the applicant was considered unsuitable for the post. The applicant’s case was that she was discriminated against on the grounds of race and sex (particularly the latter) and that her dismissal was itself discriminatory. She alleged discrimination from the recruitment process onwards. As the EAT put it:-

The EAT identified the next allegation made by the claimant as being KCL’s request for a further reference. The Tribunal found that the obvious reason KCL made the request was that it had received only one and not two references; that this was normal practice and had nothing whatever to do with race or sex.

The next suggestion was that Mr. Newman, KCL’s Legal Compliance Manager in the ISSD had appointed her in part for sexual motives. The applicant’s case was that he then proceeded sexually to harass her. The Tribunal examined this allegation in considerable detail, and rejected it. It found the applicant’s account “tortuous and untrue”. As the EAT put it: -

In paragraph 6 if its judgment, the EAT commented:-

On 10 February 2004, there was an important incident shortly before the applicant went on holiday. The EAT summarised it in the following way:-

In paragraphs 8 and 9 of its judgment, the EAT summarised the Tribunal’s other findings:-

The EAT’s summary of the Tribunal’s findings was, accordingly, that the applicant had “exaggerated various incidents, had lied about others, had given inconsistent accounts and that her allegations were wholly without foundation”. By contrast the Tribunal found that KCL’s behaviour was generally honest and considerate and “as favourable to the (applicant) as could possibly have been hoped for”.

I have read the Tribunal’s judgment more than once, and I agree with the EAT’s summary of it. Moreover, it seems to me that, as the “industrial jury” it was for the Tribunal to find the facts. The only basis for any challenge to the facts as found, in my judgment, would have to be based on perversity. Here there was abundant material on which the Tribunal could properly make the findings which it did, particularly in relation to witness credibility. The applicant gave evidence to the Tribunal for three days. It has ample opportunity to assess her. The simple fact of the matter is that it wholly rejected the applicant’s evidence. She had simply not made out even a prima facie case. That, in my judgment, made her task in her appeal to the EAT very difficult, and it also puts a very substantial obstacle in her way in pursuing an application for permission to appeal to this court.

The EAT rejected the submission made on the applicant’s behalf that the Tribunal had erred in law by failing to analyse the applicant’s complaints in the two stage manner required by Igen . Firstly, it took the view that the Tribunal did not have to go on to consider less favour treatment if it was satisfied that the incidents alleged to found the act of sex or race discrimination or harassment had not taken place.

Secondly, and in any event, basing itself on the speech of Lord Nicholls of Birkenhead in Shamoon v Chief Constable of the RUC [2003] UKHL 11; [2003] IRLR 285, the EAT held that it was not always necessary to go through the two stage process discussed in Igen , particularly in a case in which it was satisfied that the reason for the employer’s behaviour had nothing whatsoever to do with sex or race. For example, in relation to the applicant’s complaint about being chased for a reference, the EAT found that there was an obvious explanation given by KCL which had nothing to do with race or sex. It was thus unnecessary for the Tribunal in these circumstances to go through the artificial exercise of identifying whether or not there was less favourable treatment in this respect. There plainly was not. The view of the EAT was that Employment Tribunals should not have “to dance on the end of pin” to make such distinctions when the factual matrix was plain.

The EAT dealt with other matters in its judgment, but it seems to me that the conclusions which I have summarised go to the heart of its reasoning. In so far as the Tribunal had not dealt with a number of particular instances, the EAT held that it had been entitled not to do so. In relation in particular to the allegations of harassment, the conclusion reached by the Tribunal made it perfectly clear to the applicant why she had lost (the classic Meek v Birmingham City Council [1987] IRLR 250 reasons test). The EAT thus took the view that the appeal had no merit and should be stopped at the preliminary hearing stage.

In a skeleton argument dated 17 November 2006, and running to some 122 paragraphs over 32 pages, Ms Andrea Chute takes a number of points. The first relates to the Tribunal’s reasons. In my judgment, whilst Ms Chute’s analysis, is undoubtedly erudite, her attempt to assert that the Tribunal’s reasons for its decision are inadequate wholly fails. The Tribunal spent no less than eight days hearing the applicant’s claims, and as I have already pointed out, its painstaking and detailed decision runs to some 168 paragraphs. Reading it, I am in no doubt at all why the applicant did not succeed. As I have already made clear, I agree with the EAT’s analysis. No objective reader of the judgment could possibly assert that the Tribunal’s reasons are inadequate. The applicant so asserts because she does not agree with the findings made against her. That is understandable, but provides no basis for asserting that the Tribunal made an error of law.

Miss Chute then embarks on an equally erudite analysis of the statutory provisions and associated jurisprudence relating to direct discrimination. This includes a section on the burden of proof. She conducts similar exercises in relation to victimisation. Her submissions begin at paragraph 64 on page 19 of her skeleton argument. She identifies three grounds of challenge. They are (1) procedural failures; (2) failure properly to apply the burden of proof test; and (3) failure to take into account a comparator.

As to the first, Ms Chute complains that the Tribunal failed to deal appropriately with the applicant’s application for witness orders. In effect, her application for such orders in relation to a variety of witnesses were – in effect – brushed aside and not properly dealt with at the hearing, despite the applicant’s attempts to raise the issue.

Ms Chute also complains that there was insufficient hearing time allocated to the two claims, thereby inappropriately curtailing the applicant’s ability to cross-examine KCL’s witnesses. A further complaint is that there was no clarification of the issues by the Tribunal at the outset. Ms Chute complains that the Tribunal misunderstood the nature of the claim. The applicant had been asked to provide three references, not two. It had also reached a perverse conclusion on the point relating to the provision of an additional reference, by finding that there could be no discrimination when she had actually been appointed to the post in question. After dealing in considerable detail with the evidence on the point, Ms Chute concludes that everything in relation to the procedural complaints could give the appearance of bias.

Erudite as the argument is, I am completed unpersuaded by it. It is, in my judgment, quite impossible to argue that the applicant did not have a fair trial, or that she was disadvantaged by being in person. The Tribunal points out that the applicant’s witness statement, which stood as her evidence in chief, amounted to some 213 paragraphs over 106 pages. Ms Chute herself records that the applicant gave evidence for three days. The care which the Tribunal gave to the case is manifest from its reasons, the introductory paragraphs of which set out the matters which the Tribunal read and heard and the manner in which the hearing was conducted.

I am always brought back to the same elementary point. The Tribunal decided this case on its facts. The facts were for the Tribunal to find. The Tribunal did not believe the applicant, and found she had simply not made out a case. These matters were essentially the Tribunal’s province. On the material before it, the Tribunal was manifestly entitled to conclude as it did. Even if there were any minor procedural irregularities (which I am not persuaded there were) they would have made no difference. Equally, the applicant could have called any number of witnesses: it is highly unlikely, in my judgment, that any of them would have affected the Tribunal’s assessment of the applicant’s credibility.

There has to be an element of proportionality in these cases. Furthermore, Employment Tribunals are, within the Rules, masters of their own procedure. I can detect no element of procedural unfairness in this case.

The argument relating to the burden of proof raises, fair and square, the issue on the basis of which I adjourned the case on 24 November 2006. As it happens, however, the three cases Appiah , Brown , Madarassay seem to me essentially to confirm the position as it was stated in Igen. In Madarassy, which I have already indicated, was treated informally as the lead case, Mummery LJ expresses surprise at the apparent difficulties being encountered by Employment Tribunals in dealing with the burden of proof in sex and race discrimination cases. I cite paragraphs 5 to 14 of his judgment:-

We were informed that, as evidenced by this clutch of appeals and by appeals pending in other cases, employment tribunals are experiencing difficulty with the burden of proof in sex and race discrimination cases. This is surprising, as the Court of Appeal analysed the law in depth and gave clear and sound detailed guidance in Igen v. Wong [2005] EWCA 142; [2005] ICR 931. At the end of the judgment of the court an Annex set out guidance in 13 short and logically arranged numbered paragraphs. The judicial guidelines were framed with expert assistance from the Commissions for Equal Opportunities, Racial Equality and Disability Rights, which, with the permission of the court, intervened in Igen v. Wong and made submissions through leading counsel (Mr Robin Allen QC). None of the parties in these appeals challenges the correctness of Igen v. Wong .

Some of the difficulties with the new burden of proof are attributable to the process of adapting to change. It takes time for everyone to get used to a new law. Over the years tribunals were guided by Neill LJ's lucid explanation of the burden of proof in discrimination cases. For over a decade the passage in his judgment in King v. Great Britain-China Centre [1992] ICR 516 at 528-529 became one of the most frequently cited in all discrimination law. It clarified and settled the law. It worked well in practice.

Now tribunals and courts are faced with amended statutory provisions, which changed the law, but do not explain how it actually works. The difficulty is in knowing how much difference the amendments should make in practice. Although Igen v. Wong is authoritative on the construction of the statutory provisions and helpful in its guidance, it seems that tribunals are now faced, as was this court on these appeals, with contradictory arguments by the parties about the effect of Igen v. Wong . As Elias J observed in one of the more recent cases ( Laing - see below) "There still seems to be much confusion created by the decision in Igen v. Wong ." (paragraph 71).

Some submissions in these appeals prompt me to alert practitioners to what Igen v. Wong did not decide.

First, it did not decide that judicial guidance is a substitute for section 63A(2), (or section 57ZA(2)). On the contrary, the Court of Appeal went out of its way to say that its guidance was not a substitute for statute: see paragraph 16. Courts do not supplant statutes. Judicial guidance is only guidance.

Secondly, Igen v. Wong did not decide that a tribunal commits an error of law by omitting to repeat the judicial guidance in its decision or by failing to work through the guidance paragraph by paragraph. The Court of Appeal expressly warned against this possible misuse of the guidance: see paragraph 16. Omitting to refer to guidance or to apply it may increase the risk of errors of law in a decision, but such an omission is not in itself an error of law on which to found a successful appeal.

Having said what Igen v. Wong did not decide, I should add that there really is no need, at this level of decision, for another judgment giving general guidance. Repetition is superfluous, qualification is unnecessary and contradiction is confusing.

I do not underestimate the significance of the burden of proof in discrimination cases. There is probably no other area of the civil law in which the burden of proof plays a larger part than in discrimination cases. Arguments on the burden of proof surface in almost every case. The factual content of the cases does not simply involve testing the credibility of witnesses on contested issues of fact. Most cases turn on the accumulation of multiple findings of primary fact, from which the court or tribunal is invited to draw an inference of a discriminatory explanation of those facts. It is vital that, as far as possible, the law on the burden of proof applied by the fact-finding body is clear and certain. The guidance in Igen v. Wong meets these criteria. It does not need to be amended to make it work better.

The only possible value of this judgment and of the judgments in Brown and Appiah is in showing how the burden of proof should work. Problems arise when the parties are in dispute about the application of the relevant law to the facts of their particular case.

Other decisions in the Court of Appeal and in the Employment Appeal Tribunal, both before and after Igen v. Wong , were cited. The discussions in them clarify law and practice and assist in their development. They iron out some of the misunderstandings evident from the legal submissions to the tribunal. They illustrate the implications of the amended legislation as it is worked through in practice, case by case: see Bahl v. The Law Society [2004] IRLR 799 (Court of Appeal pre-section 63A(2) applying King v. Great Britain China Centre [1992] ICR 516 at 528-529 and Glasgow City Council v. Zafar [1998] ICR 120 at 125-126); Brown (EAT-Elias J- February 2006, one of the appeals heard along with this case); Network Rail Infrastructure Ltd v. Griffiths-Henry [2006] IRLR 865 (EAT-Elias J-23 May 2006); NUT v. Watson (UK EAT/0204/06/DA-Elias J-13 June 2006); Li v. Atkins & Gregory Ltd (UK EAT/0157/06-Elias J-5 July 2006); Fox v. Rangecroft and Elmbridge BC ([2006] EWCA Civ 1112 Court of Appeal-13 July 2006); Fernandez v. Office of the Parliamentary Commissioner (UK EAT/0180/06/SM-Bean J-28 July 2006); Laing v. Manchester City Council [2006] IRLR 748 (EAT-Elias J- 28 July 2006).

For reasons which I do not understand, I received written submissions from Niran de Silva of counsel on behalf of the respondents dated 12 February 2007. These I have not taken into account. I also received a letter dated 9 February 2007 from the applicant’s solicitors (which simply asserted that the applicant’s case was distinguishable). I also received a written submission from the applicant herself dated 12 February 2007. I have taken the latter two documents into account in reaching my conclusion.

In her submission, the applicant helpfully sets out paragraph 58 of the decision in Madarassy . I think it appropriate, however, to flesh out the citation at little more, so I proposed to begin at paragraph 54:-

I am unable to agree with Mr Allen's contention that the burden of proof shifts to Nomura simply on Ms Madarassy establishing the facts of a difference in status and a difference in the treatment of her. This analysis is not supported by Igen v. Wong nor by any of the later cases in this court and in the Employment Appeal Tribunal. It was not accepted by the Employment Appeal Tribunal in the above mentioned cases of Network Rail Infrastructure ...paragraph 15) and Fernandez (paragraphs 23 and 24) and by the Court of Appeal in Fox (paragraphs 9-18 see above).

In my judgment, the correct legal position is made plain in paragraphs 28 and 29 of the judgment in Igen v. Wong.

The court in Igen v. Wong expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the tribunal could conclude that the respondent "could have" committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal "could conclude" that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.

"Could conclude" in section 63A(2) must mean that "a reasonable tribunal could properly conclude" from all the evidence before it. This would include evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint. Subject only to the statutory "absence of an adequate explanation" at this stage (which I shall discuss later), the tribunal would need to consider all the evidence relevant to the discrimination complaint; for example, evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the complainant were of like with like as required by section 5(3) of the 1975 Act; and available evidence of the reasons for the differential treatment.

The absence of an adequate explanation for differential treatment of the complainant is not, however, relevant to whether there is a prima facie case of discrimination by the respondent. The absence of an adequate explanation only becomes relevant if a prima facie case is proved by the complainant. The consideration of the tribunal then moves to the second stage. The burden is on the respondent to prove that he has not committed an act of unlawful discrimination. He may prove this by an adequate non-discriminatory explanation of the treatment of the complainant. If he does not, the tribunal must uphold the discrimination claim.

The applicant, in her submission, cites and acknowledges the force of a number of additional paragraphs from the judgment in Igen, and also recognises, as Elias J said in Laing , that it would be absurd if the burden of proof moved to the respondent to provide an adequate explanation for treatment which on the Tribunal’s assessment of the evidence had not taken place at all. However, the applicant seeks to distinguish Madarassy on what, I have to say are entirely technical, pleading grounds, namely that, in her case: -

I am wholly unable to accept the applicant’s argument that her case can be distinguished from the approach properly adopted by this court in the three decisions referred to, and notably in Madarassy . The simple fact of the matter is that the applicant did not make out a prima facie case of discrimination on the facts. It was therefore wholly unnecessary for the Tribunal artificially to go through the two stage Igen process. I can therefore detect no error of law in the Tribunal’s approach to the burden of proof.

Ms Chute’s third heading was the Tribunal’s alleged failure to take a comparator into account. This, in my judgment, is unarguable for the same reason. If there is no prima face case, there is no need for a comparator: the question simply does not arise.

In my judgment, this is a hopeless application for permission to appeal and must be dismissed. There is, in my judgment, no prospect whatsoever of a substantive appeal succeeding. The approach of the EAT was plainly correct, and I can detect no error of law in the Tribunal’s approach and conclusions. I only regret that the application has taken so long to determine, and that so much energy and cost has been put into its presentation.