Submissions
A Issues
(i) Race
The Claimant, in his IT1 raises numerous bullet points whereby he claims he has been discriminated against. These are basically the same points as were raised at the Grievance Hearing and Appeal in front of Messers (sic) Jenkinson and Peel.
The issue, put simply, is whether or not the Claimant was discriminated against by Roger Boden or the college, or both during the course of his employment either directly or indirectly.
Did the Respondents justly and severally act unreasonably? If so was that behaviour promoted by discrimination against the Claimant?
(ii) Redundancy
The claim by the Claimant is that the redundancy is a sham and was nor really a redundancy situation. Was the redundancy situation brought about as a pretext to 'get rid' of the Claimant or was it a true redundancy?
Was the redundancy situation manufactured by Roger Boden and promoted by him through a puppet finance committee and a puppet Governing Body to get rid of the Claimant because Roger Boden was racially motivated?
Was there really a redundancy situation?
If so was the correct procedure adopted?
Was there Consultation?
Were there offers of alternative employment?
Is this a fair dismissal under section 98 ERA 1996?
Did Roger Boden and/or the College behave reasonably?
What was the real reason for the dismissal and is this a fair reason within Section 98?
B Law
The Race Relations Act 1976 Section 4 (2) provides.
'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.'
Discrimination is defined by Section 1 of the Act as follows-.
'(1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if -
(a) on racial grounds he treats that other less favourably than he treats or would treat other persons'
Racial grounds and racial groups are defined by section 6 of the Act.
Section 54A of the Act provides at section 54A (2):-
'Where, on the hearing of the complaint, the complainant proves facts from which the Tribunal could, apart from this section, conclude in the absence of any adequate explanation that the respondent - (a) has committed such an act of discrimination or harassment against the complainant, or (b) is by virtue of section 32 or 33 to be treated as having committed such an act of discrimination or harassment against the complainant the Tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed, that act.'
(a) has committed such an act of discrimination or harassment against the complainant, or (b) is by virtue of section 32 or 33 to be treated as having committed such an act of discrimination or harassment against the complainant
(b) is by virtue of section 32 or 33 to be treated as having committed such an act of discrimination or harassment against the complainant
Section 32 deals with liability of employers:-
'(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 there under) as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval.' 'There is a defence for employers in section 32(3) if the employer 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.'
'There is a defence for employers in section 32(3) if the employer 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.'
To establish direct race discrimination the burden is on the claimant to prove, in relation to each allegation, each of the following:-
(i) that the complainant has been treated less favourably by the discriminator than a person of another racial group was or would have been treated in the same or materially similar circumstances; (ii) that the less favourable treatment has been afforded to the claimant on racial grounds; (iii) that through such treatment the claimant has suffered a detriment.
(ii) that the less favourable treatment has been afforded to the claimant on racial grounds;
(iii) that through such treatment the claimant has suffered a detriment.
The first issue is the less favourable treatment and the second is the reason why, Shamoon v Chief Constable of the Royal Ulster Police [2003] IRLR 285.
There are certain principles of law which apply to establish race discrimination.
The onus is on the claimant to establish, on the balance of probabilities, facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination which is unlawful under Part 2 of the Act or by virtue of sections 32 and 33.
The discrimination need not to be conscious; sometimes a person may discriminate on racial grounds as a result of inbuilt and unrecognised prejudice of which he or she is unaware.
The discriminatory reason for the conduct need not be the sole reason or even the principle reason for the discrimination; it is enough that it is a contributory cause in the sense of a significant influence: Lord Nichols Naiaragan - London Regional Transport [1999] IRLR 572.
In determining whether there has been discrimination it is necessary, in all except the most obvious cases, to discover what was in the mind of the alleged discriminator. As there will generally be no direct evidence on this point the Tribunal has to make appropriate inferences from the primary facts which it finds. At this stage the Tribunal is not making a definitive determination. It is looking at the primary facts proved by the claimant to see what inferences of secondary facts could be drawn from them.
In deciding whether there is discrimination, the Tribunal must consider the totality of the evidence; Qurishi v Victoria University of Manchester [2001] ICR 863 and Anya v University of Oxford [2002] ICE 337.
The Tribunal can make adverse inferences, if it just and equitable to do so, from evasive or equivocal replies to a questionnaire or other questions within section 65.
The claimant must prove facts, from which the Tribunal can, drawing the appropriate inferences, conclude that there is prima facie case of less favourable treatment on the grounds of race. The Tribunal then looks to the respondent to rebut the prima facie case.
The Tribunal must consider the explanation given by the respondent which may show:-
(a) that obviously, or after analysis, that there is no explanation; (b) the explanation confirms the existence of discrimination; (c) there is a non discriminatory explanation which rebounds on the respondent, e.g. the employer always behaves badly to his employees-, (d) There is a non discriminatory explanation which is wholly admirable.
To discharge the burden the respondent must prove, on the balance of probabilities, that the treatment was not significantly influenced, as defined by Naiaragan on the grounds of race.
The Tribunal has to evaluate the respondent's evidence to be satisfied that the respondent has satisfied the burden of proof.
There is a need to identify a detriment in addition to finding less favourable treatment on the prohibited grounds.
The test for establishing a detriment was defined by Lord Hope in Shamoon as follows:-
'As Lord Brightman put it in Ministry of Defence v Jeromiah [1980] 1QB 87 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 that in all the circumstances it was a detriment? An unjust sense of grievance cannot amount to detriment Barclays Bank Plc v Kapur & Ors No2 [1995] IRLR 87.... It is not necessary to demonstrate some physical or economic consequence'.
The question of whether or not a detriment exists must be looked at from the victim's point of view. If there is discriminatory treatment it may not necessarily be race discrimination. There can be many acts of an employer which causes a detriment to the employee but the act may not be discriminatory. The Tribunal can only make findings of discrimination from the matters which are contained in the claim form or any amendment to it, Chapman v Simno [1994] IRLR 124.
A Tribunal cannot infer that there has been unlawful discrimination from the mere fact that the employer has treated the employee unreasonably. Glasgow City Council v Zafar [1998] ICR 120. In order to establish unlawful discrimination it is necessary to show that the employer's reason for acting was on of the prescribed grounds. Racial bias may be inferred if there is no explanation for the unreasonable behaviour. Selby LJ Anya v University of Oxford.
The Tribunal is referred to the Decision in Madden v Preferred Technical Group Cha Limited [20051 IRLR P46. Where the Tribunal was entitled to decline to draw an inference that the less favourable treatment was on the grounds of the Applicant's race because there were no facts which would from the basis for it not to do so.
There is nothing in Statute or Shamoon that leads to the conclusion that the hypothetical comparator must be, in effect, a clone of the applicant in every respect (including personality and personal characteristics) except that of a different race. 'The reality is that many employees are treated less favourably then others without it necessarily following that the less favourabie treatment is on the grounds of race'.
And also Bradford Hospitals NHS Trust v Al-Shabib [2003] IRLR 4. Where the Tribunal failed to distinguish between reasonableness and less favourable treatment and this thought was followed in Bahl v Law Society [2004] IRLR 799 CA where it was held that unreasonable treatment did not of itself lead to an inference of discrimination even if there was nothing else to explain it.
In addition to the cases cited above the Tribunal is referred to the following cases:-
King v Great Britain China Centre [1992] ICE 516 McDonald v Ministry of Defence [2003] ICR 937 Marks & Spencers plc v Martin [1998] ICR 1005 Effa v Alexandra Healthcare NHS Trust; Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065 Barton v Invetec Henderson Crossthwaite Securities [2003] IRLR 332 The Law Society v Bahl [2003] IRLR 640; Pratt v Sanden International (Europe) Ltd EAT/0529/02; University of Huddersfield v Wolff [2004] IRLR 534; Chamberline Solicitors v Emokpae [2004] IRLR 595; Sinclair Roche & Temperly v Heard [2004] IRLR 763.
The question for the Tribunal to answer is why the alleged discriminator acted as he did?
If what has been done is reasonable in the eyes of the Tribunal then the reason must be non-discriminatory.
It is submitted that on all counts alleged by the claimant the College or Roger Boden has provided a reasonable explanation of behaviour and as a result no inference may be made that the alleged actions are tainted with race. Nothing in this hearing can possibly lead the Tribunal to a conclusion that what has transpired has been tainted with race.
If the Tribunal is minded to make an award for discrimination then the Tribunal is referred to the now familiar case of Vento and that any award should realistically be perhaps at towards the top of the bottom band.
The Law relating to Redundancy has been settled for some time.
ERA Section 98 (2) applies as to whether or not the employee was redundant Section 98 (4) requires the employer to behave reasonably and the law is laid down in Section 139 ERA as to consuItation/alternative employment.
A. As to Race
It is submitted that because of the Act and the case Law that the Tribunal does not have sufficient evidence from which an inference of Race Discrimination may be drawn.
All the alleged Acts of Discrimination have been answered and a reasonable explanation given. It is submitted that there is no case of Race Discrimination to answer and that the Claimant has not provided sufficient evidence, which is unexplained, from which are inference of discrimination may be drawn.
B. As to Redundancy
It is submitted that there was a true redundancy situation. That the resolution was passed by the finance committee (which was not in the 'pocket' if Roger Boden) as to redundancy; that the redundancy was put into abeyance pending the investigation; that once that investigation was over the college proceeded properly in consulting and discussing alternative employment.
It is submitted that since there was only one job applicant then there is no reason to delay and the appointment was made rapidly but without undue haste. It is submitted that the appointment of Julie Hernandez does not prove anything other than that she was the only internal candidate who applied. The whole process had taken a long time already.
Submissions on Evidence
The Tribunal heard from 3 witnesses for the Claimant and 3 witnesses for the Respondent and had to consider a large amount of documentation.
It is submitted
(1) On the Race Case
It is submitted that there was no evidence of discrimination nor was there sufficient for the Tribunal even to infer racial behaviour. The Race claim should be dismissed in total.
(2) On Redundancy
It is submitted that Roger Boden started the process of looking at staff salaries. In the accounts department which led him to review the whole department. By looking at the accounts department and the position of other colleges he propounded to the Finance Committee, a proposal for redundancy.
The process for a review of the department has to go through several stages. We submit that there is no evidence that the finance committee and the governing body are puppets to Roger Boden. In fact the evidence is to the contrary.
The Finance Committee quite properly decides to proceed.
The Claimant only raises Race at this time as he becomes aware that his job might be one in the Pool for Redundancy.
Because of the race claim the redundancy is put on hold for some time. The grievance is dealt with, we submit, entirely correctly. When the outcome of that is clear then the finance committee decides to proceed.
The Claimant is aware of the position and goes as far as to contact finance committee members directly but with little support or success.
The Claimant is consulted 5 or 6 times.
The Claimant refuses to think of alternatives to become part of the process and to apply for this new job. He states that it is a sham but has no evidence to support this.
The Claimant does not approach the college with any suggestions e.g. as to the protection of his salary (or even a negotiated salary). How must (sic) stronger his case would have been had he applied for this job and been turned down.
The college interviews and appoints the Claimant's number two In fact the only Applicant Counsel for the Claimant tired to suggest something improper with this appointment or that it was too rapid. There was only one internal Applicant and after waiting. Months everyone wanted to see the process over, There was no evidence that Julie Hernandez had been promised the job all along as maintained by the Claimant.
The evidence was that substantial savings had been made; external Auditions were not being used more often than before; that Julie Hernandez even was on a 4 day week; that considerable savings had been made.
It is submitted that this was a redundancy case quite correctly handled by the college. The Claimant could have helped himself much more.
(3) In Total
In spite of this taking 5 days of hearing with nearly 1300 pages of evidence id is submitted that this is in reality a section 98 case.
The Tribunal are asked not to be confused by a spurious Race Claim and to decide that the reason for the dismissal was redundancy that this is a fair reason under the act and that the redundancy was dealt with fairly.
The Tribunal is asked to dismiss both claims.