Employment Cases Update: Bijlani v Mr R Stewart QC & Ors UKEAT/0228/11/RN

Bijlani v Mr R Stewart QC & Ors UKEAT/0228/11/RN

Appeal against a finding by the ET dismissing all the claimant’s complaints under the RRA and the DDA. Appeal dismissed.

The claimant, a barrister, brought claims of race and disability discrimination to the ET following several incidents where clerks within her chambers had made racist comments. She complained that the respondent had failed to prevent, abate or condemn the racist conduct of her colleagues. The clerks were not dismissed although the respondent accepted the resignation of one of them. The ET rejected the claims and said the respondent, when taking the decision not to dismiss, was motivated in part by a desire if possible to secure the outcome that there should be no practical harm to the business of chambers - in short, that the clerks were too good at their job to be lost to chambers, and that this was a commercial decision and not one in any sense based on race. The claimant appealed, arguing that the reference to “in part” left open the possibility that the decision not to dismiss was taken to avoid the reputational damage to chambers if it became known by their dismissal that there had been racists in the clerks’ room. A decision to decline to dismiss because of the fear of identification as being or having been implicated in racism was to act on racial grounds.

The EAT dismissed the appeal. The ET judgment did not leave open the interpretation that the ET found or should have found that a reason for the decision of the respondent was a fear that dismissals of the clerks may lead to reputational damage to chambers for harbouring racists in their clerks’ room. Also, the EAT held that it was not perverse for the ET to fail to hold that one of the clerks was allowed to resign to avoid the reputational damage through the clerks’ room being identified as racist.

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Appeal No. UKEAT/0228/11/RN

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX

At the Tribunal

On 28 & 29 June 2012

Judgment handed down on 20 December 2012

Before

THE HONOURABLE MRS JUSTICE SLADE DBE; MR P GAMMON MBE; MR R LYONS

BIJLANI (APPELLANT)

(1) MR R STEWART QC; (2) MR J FENWICK QC; (3) MR J POWELL QC; (4) MS L WISEMAN (RESPONDENTS)

Transcript of Proceedings

JUDGMENT

**APPEARANCES**

For the Appellant
MR PATRICK GREEN (One of Her Majesty's Counsel) & MS NATASHA SETHI (of Counsel)

Bar Pro Bono Unit

For the Respondents MR RICHARD LEIPER (of Counsel)

Instructed by:
DWF LLP
Capital House
85 King William Street
London
EC4N 7BL

**SUMMARY**

RACE DISCRIMINATION

Direct

Detriment

The Employment Tribunal did not err in holding that the actions complained of in the Complaints the subject of the appeal were not taken on grounds of race. They did not misdirect themselves in law on this issue and their judgment and reasons did not include expressly or by implication a finding that a decision of which complaint was made was taken in part on such grounds. Nor, reading the reasons as a whole, did the Employment Tribunal leave open this possibility. Insofar as the Employment Tribunal held that intention or 'targeting' was relevant to the question of whether the Complainant suffered a detriment they erred.

**THE HONOURABLE MRS JUSTICE SLADE DBE**

The Appellant, Dr Bijlani who is a barrister, appeals from the dismissal by an Employment Tribunal ('ET') in a judgment sent to the parties on 3 March 2010 of her claims under the Race Relations Act 1976 ('RRA'). Dr Bijlani, brought thirty two claims under the RRA1 and the Disability Discrimination Act 1995 ('DDA') against three successive Heads of the Chambers, 4 New Square ('4NS'), of which she is a member, and against the Senior Clerk. The ET recorded in paragraph 37 that Dr Bijlani said that each of the allegations under the RRA:

"…amounted to unlawful treatment under the 1976 Act, being, depending on the particular complaint, said to be one or more of: direct discrimination, victimization, or (after the relevant provision came into force) harassment."

The ET dismissed all the complaints made under the RRA and the DDA. One of the complaints under the DDA was dismissed on the basis that it was presented out of time. All the other complaints were dismissed on their merits. We will refer to the parties as Dr Bijlani and the Respondents. References below to paragraph numbers are to the judgment of the ET unless otherwise indicated.

The grounds of appeal as originally drafted and as amended were considered on the 'sift' to disclose no arguable ground of appeal. On a hearing under the Employment Appeal Tribunal Rules 1993 ('EAT Rules') rule 3(10) it was held by Langstaff J (as he then was) in paragraph 24 that there was one matter which gave rise to a potential argument. It arises out of one of the three incidents the subject of Complaint 8 which together with Complaints 9 and 10 were dealt with in paragraphs 584-615 of the judgment of the ET. It was held that in respect of disciplining of three clerks for a racial incident:

"25. …the question in essence was why it was that one or other or all of the Clerks was not dismissed, or more seriously disciplined than they were. In the course of its discussion, the Tribunal took the view that the executive committee of Chambers, in taking a decision not to follow Mr Gibson's recommendation that two Clerks should have been dismissed, were motivated in part by a desire if possible to secure the outcome that there should be no practical harm to the business of chambers. In short, that the Clerks were too good at their job to be lost to chambers, and that this was a commercial decision and not one in any sense based on race.

26. However, the words "in part" leave room for some other consideration. At paragraph 607 dealing with one of the episodes, the Tribunal thought that a concern on the part of the senior manager and the Head of Chambers was for the reputation of the Clerks' room as a whole. In context, Mr Green has submitted, that may and should properly be understood as a reference to the Clerks' room being identified as racist, and chambers having tolerated having a racist Clerks' room within its midst. If so, the argument goes, the refusal to discipline by dismissal was a decision which arguably was reached because in part a disciplinary dismissal would recognise to the world that Chambers had tolerated, and had not effectively prevented racism within its clerks' room, and a decision to decline to do so because of the fear of identification as being or having been implicated in racism was to act on racial grounds.

**Conclusion**

27. If that is the proper interpretation of it, then it is arguable that the reputational aspects of chambers, to which there are other references in the paragraphs to which I have referred, may have a link with race; and it is arguable, perhaps, that the conclusion which the Tribunal came to at paragraph 614, in which concerns on the one hand were balanced by explanations on the other, was not one to which the Tribunal might have been entitled to come had it appreciated, as it ought to have done on this argument, that part of the reasoning had regard to issues of race."

The EAT ordered that the appeal be set down for a full hearing solely on Complaints 8, 9 and 10. The remaining grounds of appeal were dismissed. The three complaints before the ET in respect of which it was held that the appeal could proceed to a full hearing are as follows:

"(8) Failure to prevent, abate or condemn the racist conduct of the Claimant's clerks Mr Peck, Mr Sabini and Mr Purse, before or after their racist outbursts in 2000 (all three), 2004 (Mr Sabini) and 2006 (Mr Sabini).

(9) Failure to provide or require Equal Opportunities Training for the clerks from the outset of their employment onwards, monitor their conduct and performance or to appoint an Equal Opportunities Member of Chambers Officer and/or Committee in Chambers.

(10) Appointing Mr Peck, Mr Sabini and Mr Purse to clerk the Claimant."

An application for permission to appeal from the decision of the EAT that the remaining grounds of appeal be dismissed was dismissed by the Court of Appeal at an oral hearing.

By letter from the EAT of 12th June 2012 responding to an enquiry from the Respondents' solicitors it was made clear that:

"2. The judgment given on 18 May 2011, in the light of the Grounds of Appeal advanced to the court, identifies the appealable point.

3. The context was one in which the issue was one of harassment/detriment being caused to the Appellant by the continued presence in the clerks' room of those whom she regarded as ill-disposed toward her on racial grounds. The argument (put briefly) was that the "guilty" clerks had to be removed or sufficiently disciplined by the Respondents to prevent that effect. The decision to retain the clerks, and thereby expose the Appellant to continuing detriment/harassment, was said to be reached on (or, rather, partly on) racial grounds. It was this point which was held arguable. As Moore-Bick LJ said in the C.A.:

"26. In my view it is not arguable that the Employment Tribunal disregarded that matter, but it was for the tribunal to decide in the light of all the evidence whether the continued employment of the clerks amounted to less favourable treatment of the applicant or created a hostile working environment for her. However, this was the one point on which the judge was persuaded that there was a sufficiently arguable case to go to a full hearing. He identified the fact that the tribunal had found that the decision to retain the clerks was in part a desire to retain a strong team in the clerks' room, which suggested that other motives may also have been at work.""

In paragraph 2 of his skeleton argument, Mr Patrick Green QC for Dr Bijlani rightly characterised the 'ambit of the appeal' as 'fairly narrow and circumscribed by three complaints before the Employment Tribunal (rather than by particular Grounds of Appeal)'. He writes that this is clear from the order and judgment of Langstaff J (on the EAT Rules rule 3(10) hearing) and the judgment of the ET.

In their skeleton arguments and oral submissions before us, both Patrick Green QC and Richard Leiper for the Respondents dealt with both issues, whether Dr Bijlani had been subjected to a detriment and whether the actions complained of had been taken on grounds of race. In relation to Complaints 8, 9 and 10, these were whether the decision to retain the clerks was taken on grounds of race and whether Dr Bijlani had suffered a detriment as a result of the circumstances considered in Complaints 8, 9 and 10. The basis upon which Langstaff J considered that the challenge to the conclusion of the ET on whether actions of the Respondents were on grounds of race was arguable was confined to the decision of the Respondents not to dismiss the three clerks in 2000. This was repeated by Moore-Bick LJ and quoted in the letter of clarification sent by the EAT on 12 June 2012. It turned on an identified passage in the judgment of the ET which related to that disciplinary decision.

**The Judgment of the ET**

The hearing before the ET took five weeks. The judgment ran to 735 paragraphs. There were more than nineteen witnesses and thirty lever arch files of documents. The ET observed that the scale and scope of the litigation was substantial.

After a pupillage in 4NS chambers in September, in 1994 Dr Bijlani became a tenant. Dr Bijlani considered that her practice did not flourish as it should and that she was subjected to the discrimination, victimisation and harassment of which she complained in thirty two complaints before the ET.

John Powell QC was Head of Chambers from 1 January 1997 to 31 December 1999, and Justin Fenwick QC from 1 January 2000 to 31 December 2005 and Roger Stewart QC became Head of Chambers on 1 January 2006. Ms Wiseman was appointed Practice Manager on 1 January 1998 and Senior Clerk from 1 January 1999. The other members of the clerking team to whom Complaints 8, 9 and 10 relate were Dominic Sabini, Dennis Peck and Steve Purse. Dominic Sabini joined chambers on 1 July 1997. By 1998 he had become Second Junior Clerk and in 1999 joint First Junior Clerk with a Mr Milsom. In 1999 Dennis Peck and Steve Purse joined chambers as clerks. In early 2000 Mr Milsom left and Mr Sabini became sole First Junior Clerk. By mid 2000 Ms Wiseman was Senior Clerk, the First Junior Clerk was Mr Sabini and the other clerks were Dennis Peck, Steve Purse and Nick Bryant. There were therefore five clerks. Later in 2000 Steve Purse resigned. He rejoined chambers in November 2003. In 2008 Mr Peck because First Junior Clerk. Mr Peck was Dr Bijlani's clerk from 1999 until September 2000. She was clerked by Mr Sabini from November 2001 until November 2003. From November 2003 Dr Bijlani was clerked by Mr Purse. Mr Sabini left chambers in 2007.

**Complaint 8**

Complaint 8 is of:

"Failure to prevent, abate or condemn the racist conduct of the Claimant's clerks, Mr Peck, Mr Sabini and Mr Purse before or after their racist outbursts in 2000 (all three), 2004 (Mr Sabini) and 2006 (Mr Sabini)."

We set out below a summary of the findings of fact made by the ET in relation to each incident.

**Incident in May 2000 – remarks concerning Ms P** (ET Judgment paragraphs 221-234)

On 26 May 2000 Mr Peck telephoned a receptionist, Ms P, when she was at home. Ms P is black. He heard the answer-phone message on Ms P's telephone. Mr Peck put the phone on loudspeaker so that Mr Sabini and Mr Purse who were with him could hear the answer-phone message when he called the number again. The answer-phone tape recorded comments by Mr Peck and Mr Purse. The ET held:

"222. After the answer-phone message had been heard Mr Peck comment that Ms P was bright and had done pretty well, but he then mimicked her Caribbean accent and made the remark to his colleagues: "I hate educated wogs". This drew the response: "Is she that educated?" from someone later identified as being Mr Purse. Mr Peck responded: "No, but people think they do…". He then referred to the sportsmen "Eubank" (obviously Chris Eubank) and Paul Elliott, mimicking Mr Elliott's accent."

Ms P made a complaint to chambers and also referred the matter to the police. An investigation was carried out by a member of chambers, Charles Gibson QC, and Ms Wiseman. They interviewed the three clerks. Justin Fenwick QC, who was then Head of Chambers, sent a confidential email to all members of chambers on 1 June 2000 the day before the interviews. He informed them that an incident in which a racially abusive comment had been made by Mr Peck in the presence of Mr Sabini and Mr Purse and that an investigation was being conducted.

On Monday 5 June Mr Gibson QC and Ms Wiseman provided a memorandum to Mr Fenwick QC regarding the incident. The ET found at paragraph 224:

"In particular Mr Peck had accepted that he may have said "I hate educated wogs", but said that if he did so it was in the context of affectation of voice and manner."

On 6 June at least Mr Sabini re-interviewed after Mr Gibson QC and Ms Wiseman listened to the answer-phone tape. The ET held that it appears that they also re-interviewed Mr Peck and Mr Purse. Mr Fenwick QC met Ms P and her husband. The outcome of the meeting was that in principle, subject to a compromise agreement being drawn up and entered into and the approval of the Executive Committee of Chambers ('EC'), Ms P was to leave chambers and be paid compensation in settlement of all potential claims against chambers or their employees.

There was a meeting of the EC on 5 June 2000. Mr Gibson QC recommended to the EC that Mr Peck, who made the remark and Mr Sabini because he was the senior clerk present, should be dismissed. He recommended that Mr Purse should receive a written warning. At paragraph 227 the ET record that the collective decision of the EC:

"…was not to accept that recommendation but to recommend that all three clerks should be given written warnings, but also given appropriate racial awareness training. However the EC left the final decision to Mr Fenwick, as Head of Chambers."

The ET found that before Mr Fenwick QC came to his final decision, he and Ms Wiseman between them spoke to the three BME members of chambers: Dr Bijlani, Ms Mirchandani and Mr Asif. The ET set out their findings of fact relating to these meetings in paragraphs 229, 230 and 231. They found that both Mr Asif and Ms Mirchandani took the view that sanctions were a matter for the EC. When asked, Ms Mirchandani said that she no longer wished to be clerked by Mr Peck.

Mr Fenwick QC met Dr Bijlani. The ET held at paragraph 231:

"We were satisfied that she was given the same essential details including the envisaged sanctions, as were the other two; and that Mr Fenwick allowed her the same general opportunity to make any observations on clerking arrangements, sanctions, or any other aspect, that he allowed Mr Asif."

They held that if she did not know precisely what Mr Peck said, Dr Bijlani could have asked Mr Fenwick QC and he would have told her.

Having considered the evidence the ET found at paragraph 232 that:

"There was no suggestion that the Claimant had advocated the dismissal of any of the three clerks, and we did not so find; nor did we find that, when Mr Fenwick met with her, she asked that Mr Peck cease clerking her."

There was a full meeting of the chambers on Thursday 8 June 2000. Mr Fenwick QC reported the EC's recommendations and the agreement in principle reached with Ms P. The ET inferred that there was no significant mood of dissent from these proposals at the meeting. The ET held at paragraph 234:

"Mr Fenwick's considered decision was that Messrs Sabini and Peck should each receive a final written warning and Mr Purse a written warning. All of them as well as the other members of the administrative staff, were also given diversity training."

**Remark by Mr Sabini about Mr Asif – October 2004**

On or about 20 October 2004, a BME member of chambers, Mr Asif, spoke on the telephone to his clerk, Mr Sabini, about his brief fee for a case which had resolved unexpectedly just before trial. Mr Asif asked Mr Sabini to raise the question of payment of the brief fee with the solicitors. At the end of the conversation Mr Sabini said to whoever he was addressing in the clerks' room: "cover your ears" and then said "greedy cunt". Neither Mr Sabini nor Mr Asif had yet properly hung up their phones and Mr Asif overheard the remark.

Ms Wiseman asked Mr Sabini to attend a disciplinary interview. Mr Fenwick QC and Mr Asif exchanged emails. Mr Asif felt that the matter must be taken very seriously. Ms Wiseman met Mr Sabini on 27 October 2004. On 4 November 2004 she wrote to Mr Sabini telling him that he was to be given an oral warning and that the letter would be placed on his file for six months. The ET held at paragraph 240:

"She said she concluded that although his comment and tone could be interpreted as exhibiting a dislike or feeling of contempt towards Mr Asif or members of chambers generally, this was not a reflection of his attitude but was a reaction to a situation in which he felt criticised."

Mr Asif later emailed Mr Fenwick QC and Ms Wiseman that this view was factually incorrect as he had merely made a request of Mr Sabini not a criticism. He made reference, as he had before, to the incident involving Mr Peck and Ms P in 2000 and to the culture in the clerks' room not having changed. Mr Fenwick QC agreed that the matter needed to be discussed at the EC. The ET record at paragraph 245 that Mr Asif responded to Mr Fenwick QC that:

"…he was not suggesting that there was a cultural problem, merely that there might be, that the executive committee needed to know about it and Ms Wiseman needed to be vigilant to ensure that standards were maintained, particularly when Ms Wiseman was not there."

The matter was discussed at the EC who were told by Ms Wiseman that disciplinary action had been taken. In response to a question from Ms Wiseman after the meeting, Mr Asif said that he did not want to discuss anything further with her.

**2006 Incident – Mr Sabini and Ms B**

The ET referred to any incident in 2006 in which it was alleged that Mr Sabini used abusive and sexual language to a member of staff of Iranian nationality with whom he had had a personal relationship. He swore at and cursed her. She picked up the phone to call for help. The member of staff, Ms B, made a complaint to Ms Wiseman. She made a statement setting out her account of what Mr Sabini had said. Ms B alleged that Mr Sabini had said "don't worry we'll get rid of your lot do it myself get rid of your lot".

On 18 December 2006 Mr Sabini was suspended by Ms Wiseman who said she would investigate the matter in the New Year. There followed an exchange of emails in which Mr Sabini expressed contrition. He prepared a written statement in which he broadly accepted what Ms B said about the language used by him. He agreed that he said "one day we will get rid of all of yours". The ET record at paragraph 249 of Mr Sabini's statement:

"His account opened and closed with an unreserved and wholehearted apology and he described his behaviour during the incident as truly appalling and disgraceful and said that he was absolutely disgusted with himself."

On 8 January 2007 Ms Wiseman met Mr Sabini. The outcome of their meeting was his resignation.

**The Judgment of the ET on Complaint 8**

The ET considered that the focus of Complaint 8 was on the handing by the Respondents who were involved and by the EC of the incidents in 2000, 2004 and 2006 and their aftermath. They posed the question whether that was capable of constituting detrimental treatment of Dr Bijlani. The ET held at paragraph 588 of the incident in 2000:

"…it might be argued that, for example, by not dismissing Mr Peck and Mr Sabini, Mr Fenwick took a decision which did have some impact on the Claimant, because she continued to be in a clerking relationship with Mr Peck in particular, which would have ended had a decision to dismiss him been taken. Ultimately we concluded that it is not sufficient, that it can be said merely to have some impact on them of that sort. There has to be some factor operating on the mind of the decision-maker, whether consciously or unconsciously, which relates to the person alleging detriment, or at least a specific defined group of which she is a member. That feature was absent in this case and therefore we found that none of the decisions relating to the handling of these episodes constituted detrimental treatment of the Claimant."

Because the ET found the detriment point to be very finely balanced, in case they were wrong they considered whether the reason for the actions complained of in Complaint 8 of Mr Fenwick QC, Mr Stewart QC and Ms Wiseman were taken on grounds of race.

The ET recorded at paragraph 591 that counsel then acting for Dr Bijlani suggested that any employer treating the 2000 incident seriously would have dismissed Mr Peck and Mr Sabini. The ET recorded that she suggested that the settlement was reached with Ms P "in order to facilitate the specific objective of enabling the clerks concerned to remain in chambers' employment". The ET held:

"592. It was plain from various evidence that we had from a number of witnesses that Messrs Peck and Sabini were widely regarded among members at this time as very good and able clerks who had served chambers outstandingly well. By way of example Mr Stuart-Smith told the Tribunal, when asked, that his impression was that those who knew Mr Sabini well would have regarded him as one of the best clerks at that sort of level that one could hope to have. We had no doubt that (looking at the matter, for the moment, entirely in isolation from what view may or may not have been taken of the incident itself) a significant number of members would have regarded it as a great loss if either one and certainly both of them at the same time, were to go.

593. It seemed to us that the EC in particular were motivated in part by a desire if possible to secure that the outcome of the practical harm to chambers' business, that they considered would be incurred by the loss of Messrs Peck and/or Sabini, be avoided. We drew this inference from a number of aspects including, the decision of the EC as such not to follow the recommendation of Mr Gibson, the failure to request a formal record of Mr Gibson's recommendation or to minute that important EC meeting, and the timing of the consultation of the BME members of chambers, occurring as it did only after the EC had reached their view, and notwithstanding that the final decision rested with Mr Fenwick."

The ET then considered the conduct of Mr Fenwick QC and Ms Wiseman in relation to the 2000 incident. They held that it was fair to assume that Mr Fenwick QC:

"Would have appreciated that it would be enormously useful to the task with which he and the EC were faced, to know [Ms P's] views and intentions."

The ET held at paragraph 595:

"It seemed to us that, going into that meeting with Ms P and her husband, Mr Fenwick could have assumed that her intentions as to possible litigation or criminal proceedings might affect the legal or representational risk to which chambers might be exposed by one decision or another in the disciplinary process…"

In our judgment the ET were referring in this passage to the possibility that disciplinary action taken might affect the view taken in any proceedings of the strength of Ms P's claim. Further, the public forum of civil or criminal proceedings brought on a complaint by Ms P could expose their disciplinary decisions to particular scrutiny. The ET concluded their comments about Mr Fenwick QC's meeting with Ms P by observing that they did not regard them as incompatible with his having a genuine concern for Ms P.

The ET then considered the timing of consultation with the BME members of chambers and concluded that there was nothing significant in their being spoken to after the EC met.

The ET held:

"598. Our overall conclusion was that a driving consideration for the EC was not to lose the services of either or both of Mr Peck and Mr Sabini, if practically possible. As matters did in fact unfold, the outcome of the meeting with Ms P, and of those with the BME members, which followed the EC meeting, were regarded as leaving that possibility open. As Mr Fenwick was left to make the final decision, it appears that it would, strictly, have been open to him to decide to dismiss Mr Peck and/or Mr Sabini. However, it seemed that, realistically, there would have been a heavy implicit pressure on him at this point, to follow the EC's recommendation, unless subsequent events precluded him from doing so, or obviously dictated a reappraisal; but it appeared to him that they did not.

599. Ultimately we concluded that there was not the basis to infer that Mr Fenwick, in his role in this matter, did not view the conduct of Mr Peck and his colleagues with the degree of seriousness and disapproval that he was adamant in evidence to us that the did. Although Ms Wiseman conducted the investigation with Mr Gibson and co-authored the preliminary report, she did not participate in making any recommendation to the EC. Although there is some suggestion in the evidence that she flagged up the alternative to dismissal at their meeting, we did not feel able to draw any particular inference about the degree of seriousness or otherwise with which she for her part regarded the underlying episode."

The ET stated in paragraph 600 that the thrust of Dr Bijlani's case regarding the episode in 2004 involving Mr Sabini and Mr Asif was that Mr Fenwick QC and Ms Wiseman had downplayed the incident and let Mr Sabini off unduly lightly by giving him an oral warning.

The ET recorded in paragraph 601 that:

"Mr Fenwick's evidence was that he had reached the conclusion that this was an incident of general vulgar abuse, but not race discrimination."

However he was anxious to discuss with Mr Asif his concerns since he had raised the issue of cultural problems. The ET held that both Mr Fenwick QC and Ms Wiseman were aware from what he said that Mr Asif regarded the incident as raising a general issue about her management. They also held that Ms Wiseman's note to Mr Asif with a copy of her disciplinary interview with Mr Sabini was surprisingly charitable to the clerk. They found, contrary to his assertion, that a reference to cultural issues in a note Mr Asif wrote about the incident was intended to be a reference to race. They found that there was concern on the part of Ms Wiseman and Mr Fenwick QC that the matter would be pursued at the EC including issues at to Ms Wiseman's management of the clerks. The ET held:

"The subsequent round of emails reflected an attempt by Mr Fenwick diplomatically to defuse that situation."

Mr Asif spoke at the EC after which "he appears to have treated the matter as closed". The ET held at paragraph 607:

"In summary, to the extent that there was some management with a view to 'containing' Mr Asif's reaction to this episode, the driving force seems to have been concern on the part of Ms Wiseman in relation to which she received the support of Mr Fenwick, to contain the impact on the reputation of the clerks' room as a whole, and the perceived attack upon the competence of her management."

As for the incident in 2006 concerning the behaviour of Mr Sabini towards Ms P, at paragraph 608 the ET "found it unsurprising that Mr Sabini was offered the opportunity to resign. Whilst the ET expressed themselves troubled by the relaxed and friendly tone of email exchanges between Ms Wiseman and Mr Sabini after his departure they found nothing remarkable about the treatment of the incident by Mr Stewart QC and Ms Wiseman.

The conclusion the ET reached on whether the handling by Mr Fenwick QC, Mr Stewart QC and Ms Wiseman of these three incidents was detrimental treatment of Dr Bijlani on grounds of race is set out in paragraphs 612 to 614:

"612. Looking back over these episodes as whole, three broad themes emerge. The first is that Ms Wiseman was very powerfully driven by her concerns to preserve, and develop, what she, and many members of chambers, regarded as an outstanding clerking team. She was also fiercely defensive of her own management of the team; and her natural instinct was to defend them. In the high store she set by the clerking team it would appear she had consistently strong support from successive Heads of Chambers and the EC. The second was a related desire on the part of chambers' management generally to avoid what was perceived to be the severe damage that might result from dismissals, in the wake of such episodes, rather than actions short of dismissal, or, where deemed unavoidably necessary, what might be called managed departures. Such instincts appeared to prevail even in relation to Mr Brooks-Wilkin, a junior member of staff who was, if anything, according to Ms Wiseman's account, regarded as a difficult employee who had already outlived his usefulness.

613. Ms Brown put it bluntly to more than one of the Respondents in cross-examination that they were apologizing for racism, an allegation that was fervently rejected. We considered it indeed to be wide of the mark. The Tribunal was mindful that plainly, on each occasion, actions were taken. Warnings were issued, statements were made and training was given. The Tribunal was also mindful that there are practical limits to the degree to which individual behaviour from day to day and hour to hour can be supervised or monitored. The third theme, consistently with our appraisal of chambers' management's work in the area of diversity practices generally, is that the level of awareness of these issues, and the standards of handling them, were not in accordance with the highest standards of modern thinking and practice; but nor were chambers' management indifferent to, or purely neglectful of such matters.

614. What we had to decide, to come back to the point of departure that led to this assessment, was whether, if the handling of these particular episodes was capable, conceptually, of amounting to detrimental treatment of the Claimant, it was in fact on grounds of race. Whilst we had registered some real concerns in particular in relation to Ms Wiseman's judgment in the handling of certain aspects of these matters, ultimately we were satisfied that the explanations for the conduct both of her and Messrs Fenwick and Stewart in relation to these matters, did not include a failure to act more robustly on grounds of race, in relation to the Claimant, or BME members as a group (nor, we add, though these events almost entirely preceded them, by reference to the Claimant's protected acts, or to any connection with her disability)."

**Complaint 9**

Complaint 9 is of:

"Failure to provide or require Equal Opportunities Training for the clerks from the outset of their employment onwards, monitor their conduct and performance or to appoint an Equal Opportunities Member of Chambers Officer and/or Committee in Chambers."

The ET held at paragraph 585:

"Complaint 9 embodied a general criticism of chambers management, in the shape of successive Heads of Chambers, Ms Wiseman and the EC, in terms of their approach and alleged lack of sufficient rigour and proactivity in relation to equal opportunities and diversity issues in general and monitoring and associated systems in particular. Having regard to all our previous findings and conclusions, and whilst the Tribunal did consider that chambers' management's handling of these matters over the period fell short of the standards of best practice in this area, we were satisfied that the explanation for the way in which these matters were overall handled was not in any sense targeted at the Claimant, or BME members, and did not include any element of detrimental treatment of the Claimant on grounds of race, related to disability or victimisation."

**Complaint 10**

Complaint 10 is of "Appointing Mr Peck, Mr Sabini and Mr Purse to clerk the Claimant". The ET held at paragraph 586:

"Turning to complaint 10, we note that this was specifically about the decisions to appoint each of Messrs Peck, Purse and Sabini to clerk the Claimant. In light of our findings of fact we were satisfied that these were on each occasion the result of ordinary administrative re-organisation and re-shuffling of clerking arrangements from time to time. They were not confined in their impact to the Claimant or BME members. There was no basis to conclude that she was, consciously or unconsciously, given any of these clerks as an act of detrimental treatment on grounds of race, related to her disability or by way of victimisation. We in fact could find no occasion on which the Claimant specifically asked that one of these individuals cease clerking her and had her request refused. The only occasion in respect of which we were able to find a specific request was, following the issue of these proceedings, when she asked in 2009 no longer to be clerked by Mr Purse, and he was replaced by Mr Barrass."

Complaints 8, 9 and 10 were dismissed.

**Relevant statutory provisions**

Race Relations Act 1976 ('RRA')

"Section 1

(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.

…

Section 3A

(1) A person subjects another to harassment in any circumstances relevant for the purposes of any provision referred to in Section 1(1B) where, on grounds of race or ethnic or national origins, he engages in unwanted conduct which has the purpose or effect of-

…

(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him.

…

Section 26A

...

(2) It is unlawful for a barrister or barrister's clerk, in relation to a pupil or tenant in the chambers in question, to discriminate against him-

…

(d) by…subjecting him to any…other detriment."

**Submissions of the Parties**

Patrick Green QC advanced two grounds of appeal to challenge the decision of the ET to dismiss Complaints 8, 9 and 10. He contended that the ET erred in their consideration whether the Respondents had subjected Dr Bijlani to a detriment within the meaning of RRA. Further, in relation to Complaint 8, Mr Green QC contended that the ET erred in failing to find that the decision not to dismiss the clerks involved in the Ms P incident was taken on grounds of race. It was said that these points affect the decision of the ET on Complaints 9 and 10 as well as 8. Mr Green QC contended that Langstaff J addressed them together and so did the ET. They properly fell to be considered together.

Mr Green QC's submission that the ET erred in considering whether Dr Bijlani was subjected to a detriment is commendably clear. He contended that the ET erred in directing themselves in paragraph 588 that to be held to have subjected a person to a detriment within the meaning of the RRA "there has to be some factor operating on the mind of the decision-maker, whether consciously or unconsciously which relates to the person alleging detriment, or at least a specific defined group of which she is a member". Mr Green QC referred to De Souza v Automobile Association [1986] ICR 514 in which at 522G May LJ explained that for a detriment within Sex Discrimination Act 1975, to be established:

"a court or tribunal must find that by reason of the act or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work."

The existence of a detriment did not depend upon the state of mind of the perpetrator of the act causing the detriment. Once the requirement that the claimant establish that they have suffered a detriment as a result of the respondent's act is satisfied, all the circumstances must be taken into account as explained in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337.

Mr Green QC contended that the ET misdirected themselves in holding in paragraph 688 that it was necessary to establish a detriment within the meaning of RRA for:

"some factor operating on the mind of the decision-maker, whether consciously or unconsciously, which relates to the person alleging detriment."

The ET therefore erred in concluding that none of the decisions the subject of Complaint 8, relating to the clerks actions in 2000, 2004 and 2006 constituted detrimental treatment of Dr Bijlani.

In urging us to substitute a decision that the Respondents' actions in respect of which complaint was made in Complaint 8 caused Dr Bijlani a detriment, Mr Green QC contended that failure to take steps to remove the clerks who had been guilty of racially offensive behaviour so that they remained in the clerking team had that effect. Further, Mr Green QC contended that failing to inform Dr Bijlani of the behaviour in which the clerks had been engaged in 2000 and 2004 caused her a detriment. He relied on the email of 1 June 2000 in which Mr Fenwick QC informed members of chambers that Mr Peck had made a racially abusive comment about Ms P when Mr Sabini and Mr Purse were present. Although the three clerks were identified by name, at the point when disciplinary action was being considered, members of chambers including Dr Bijlani were not told what roles Mr Sabini and Mr Purse had played in the incident. It is in that context that the failure to inform Dr Bijlani at the time when it occurred what Mr Asif had alleged Mr Sabini had said about him in 2004 should be viewed. Mr Green QC contended that not being informed of the roles Mr Sabini and Mr Purse played in the 2000 incident deprived Dr Bijlani of the opportunity to engage in a discussion on sanction. This was a detriment. Mr Green QC did not think that the detriment alleged to have been suffered by Dr Bijlani was spelt out in the ET1 but it was obviously intended to allege that the continued presence in the clerks' room of the three clerks who had displayed racist attitudes was a detriment.

Similarly, it was said, the ET erred in concluding that because the Respondents' actions complained of in Complaints 9 and 10 were not targeted at Dr Bijlani they did not "include any element of detrimental treatment of the Claimant on grounds of race".

Mr Green QC contended that the ET erred in their approach to deciding whether the actions that are the subject of Complaints 8, 9 and 10 were taken by the Respondents on grounds of race. Lord Phillips in R (E) v Governing Body of JFS (SC (E)) [2010] 2 AC 728 at p745-6, paragraph 13 made it clear that in the context of the RRA "grounds" mean the "factual criteria applied by the discriminator in reaching his decision". They do not mean the motive for taking it. Mr Green QC contended that the circumstances of this case should have led the ET to infer that the reason why the Respondents did not discipline the clerks for the 2000 incident was on grounds of race. The reason for the disciplinary action taken in relation to the clerks should have been judged in the context of the serious racially offensive conduct in which they had engaged. He referred to Baker v Cornwall County Council [1990] ICR 452 in which the Court of Appeal noted that discrimination can often result from a wish to preserve pattern of employment in, for example, a particular workshop or department which has worked well and harmoniously in the past rather than from any deliberate wish to exclude the complainant as an individual.

Mr Green QC contended that the ET referred on occasion to how well the clerking team had worked together. A wish to preserve the team judged in the context of the racial behaviour of some of its members may have led a properly directed ET to conclude that action to retain the clerking team was influenced by race.

Further, Mr Green QC advanced the submission which Langstaff J considered raised an arguable basis for an appeal. Mr Green QC contended that the reference by the ET in paragraph 593 to the EC when considering the disciplinary sanction to be applied to the clerks for the 2000 incident being motivated in part (bold emphasis added) by a desire if possible to secure that the outcome of the practical harm to chambers' business, that they considered would be incurred by the loss of Messrs Peck and/or Sabini, be avoided should be understood as a reference to avoiding reputational damage. It was suggested that this reputational damage could have arisen from a disciplinary dismissal which would recognise to the world that chambers had tolerated, and had not effectively prevented, racism within its clerks' room. A decision to decline to dismiss because of the fear of identification as being or having been implicated in racism was to act on racial grounds (see rule 3(10) Judgment 18.05.11 paragraph 26).

In his skeleton argument Mr Green QC pointed out references by the ET to the value placed by Mr Fenwick QC and Mr Stewart QC on the reputation of the clerking team and its contribution to the reputation of chambers (paragraph 493). In the context of Mr Fenwick QC meeting Ms P and her husband the ET held at paragraph 595:

"It seemed to us that, going into that meeting with Ms P and her husband, Mr Fenwick could have assumed that her intentions as to possible litigation or criminal proceedings might affect the legal or reputational risk to which chambers might be exposed by one decision or another in the disciplinary process: and that he would also have had some general appreciation and awareness of the high esteem in which the clerks were widely held."

The proposition which Mr Green QC derived from these passages in the judgment of the ET was summarised by him in his skeleton argument as follows:

"51. In the light of the Tribunal's own findings, therefore, the approach which appears to have permeated dealings with these issues was one by which the reputational damage from the clerks' room being identified as racist in any disciplinary proceedings (and possibly resulting dismissal and potential ET claims), mitigated against taking such steps."

Mr Green QC contended that Complaints 8, 9 and 10 should be considered together against the background of an unwillingness on the part of chambers to deal appropriately with racial incidents. In this regard Mr Green QC drew attention to the criticism made of chambers by the ET in paragraph 613 that the level of awareness of diversity practices and the standards of handling them were not in accordance with the highest standards of modern thinking and practice. Mr Green QC contended that all these matters should have led the ET to conclude that the acts complained of were taken on grounds of race.

At the outset of his submissions before us, Mr Leiper for the Respondents said that before the ET they apologised that racially offensive remarks had been made by clerks. He pointed out that the ET had found that there was no general culture of racism in chambers.

Mr Leiper dealt first with Complaint 8 looking first at the incident in 2000 and then the incidents in 2004 and 2006. The case for Dr Bijlani advanced by counsel then acting for her was that Mr Fenwick QC did not treat the incident in 2000 of Ms P with the seriousness that it warranted. The ET rejected this proposition in paragraph 599. The issue for the ET was whether the Respondents had acted in a manner which amounted to unlawful discrimination.

Mr Leiper drew attention to the self direction made by the ET in paragraph 454. They reminded themselves that discrimination may be conscious or subconscious. They said they should draw on all relevant primary findings to assess the wider picture, that "detriment" is to be determined by reference to the reasonable view that the recipient of the treatment would or might of take of it. They directed themselves that for:

"…treatment in respect of which there is no actual comparator a better approach to determining whether there has been less favourable treatment on prescribed grounds is often not to dwell first in isolation on the hypothetical comparator, but to ask the crucial question: 'why did the treatment occur?"

Mr Leiper contended that the ET directed themselves correctly in paragraph 455 that an act is taken on racial grounds if race is an effective, non-trivial cause of the action complained of.

With regard to the criticism made by Mr Green QC that the ET erred in considering that the intention or motive for the conduct complained of or whether it was targeted at Dr Bijlani in order to establish that she suffered a detriment, Mr Leiper contended that the motive for an act can be relevant. Where the act complained of is not restricted to a complainant or to the racial group of which they are a member there must be some connection between the complainant and the reason why the alleged discriminator acted. He drew attention to JFS to illustrate that in cases in which the act complained of is not inherently discriminatory, motive can be considered.

Even if the ET were found to have misdirected themselves in their approach to whether the Respondents subjected Dr Bijlani to a detriment, Mr Leiper contended there was no basis upon which they could have concluded that Dr Bijlani had suffered a detriment as a result of the acts complained of. Dr Bijlani knew of the racist comment made about Ms P in 2000. She and other members of chambers were so informed by Mr Fenwick QC's email of 1 June 2000. Before Mr Fenwick QC came to his final decision on disciplining the three clerks, he spoke to the three BME members of chambers. The ET made a finding of fact in paragraph 231 that if Dr Bijlani did not know precisely what Mr Peck has said about Ms P she could have asked Mr Fenwick QC and he would have told her. The ET did not find that when Mr Fenwick QC met her Dr Bijlani asked that Mr Peck cease clerking her. Mr Leiper pointed out that it was only now in the context of these proceedings that Dr Bijlani says that in those circumstances she suffered a detriment by Mr Peck and Mr Sabini being disciplined by a written warning rather than by dismissal. Mr Leiper suggested that Dr Bijlani is now contending in respect of the 2000 incident that she would only have been subjected to no detriment if Mr Peck and Mr Sabini had been dismissed.

As for the incident regarding Mr Asif in 2004, Mr Leiper contended that the comment made by Mr Sabini was not racist although the ET did not accept that Mr Asif did not view it as such. It was submitted that the 2006 incident of racial abuse by Mr Sabini to a former partner member of staff caused no detriment to Dr Bijlani as he resigned and was no longer in chambers.

After the 2000 incident Dr Bijlani was clerked by Mr Peck, then Mr Sabini and Mr Purse. Mr Leiper contended that the picture Dr Bijlani gave was not of "soldiering on". He drew attention to the finding in paragraph 164 that in an email of 17 November 2003 Dr Bijlani thanked Mr Sabini for all his past efforts as her clerk. Further, the ET recorded in paragraph 349 that on 28 September 2006 Dr Bijlani emailed Mr Stewart QC in the course of email exchanges about other matters that "Mr Purse was a very good clerk and she wished to continue working with him".

Mr Leiper contended that if the ET were found to have erred in their approach to the issue of whether Dr Bijlani had suffered a detriment in relation to the allegations in Complaint 8, they could only come to the same conclusion applying the causation approach. That she had suffered no detriment. Further, even if the ET were wrong in their approach to "detriment" they were right on the issue of whether the Respondent took the acts complained of on ground of race.

Mr Leiper contended that the acts complained of in Complaint 8 were not inherently racially discriminatory. The reason for the decision in 2000 not to dismiss Mr Peck and Mr Sabini for their conduct in the Ms P incident required further investigation. The decision not to dismiss the two clerks would only be an act of race discrimination if the decision makers were racially motivated not to do so. Mr Leiper referred to JFS in which Lord Clarke, who was of the majority view, held at page 785 paragraph 132:

"In my opinion the state of mind of JFS, the Chief Rabbi and the OCR are all irrelevant to the determination of the critical question under section I(I)(a). I agree with Lord Mance JSC that there are two ways in which direct discrimination can be established. The first is where, whatever the motive and whatever the state of mind of the alleged discriminator, the decision or action was taken on a ground that was inherently racial and the second is where the decision or action was taken on a ground that was subjectively racial. Until now this distinction has not perhaps been as clearly identified in the authorities as it should be."

Mr Leiper also drew attention to Bull and another v Hall and another [2012] 2 AER 1017, referred to by Mr Green QC, the case of two men being refused a room in a hotel because of the hotel owner's views, on religious grounds, of homosexual orientation. Rafferty LJ held at paragraph 40:

"The restriction therefore discriminates against the respondents because of their sexual orientation just as the criterion at the swimming baths discriminated against Mr James because of his sex. For this reason alone it is directly discriminatory. Put another way the criterion at the heart of the restriction, that the couple should be married is necessarily linked to the characteristic of a heterosexual orientation. There has in my view been direct discrimination by virtue of reg 3(1) and (3)(a) together with reg 4 – less favourable treatment on grounds of sexual orientation."

Mr Leiper contended that even if it is right to say that reputational issues were relevant to Mr Fenwick QC and that one of the reasons he decided not to dismiss Mr Peck and Mr Sabini was to protect the reputation of chambers, that reason was not something which necessarily included an element of race. It was not an inherently discriminatory reason not to dismiss the clerks. Accordingly the reason why Mr Fenwick QC took the action he did in warning rather than dismissing the clerks would only be on grounds of race if his motivation for so acting was racial. In this case there was a clear finding by the ET that a driving consideration for the EC was not to lose the services of the two clerks. The ultimate decision was for Mr Fenwick QC to take. The ET held that realistically there would have been heavy implicit pressure on him to follow the EC's recommendation. The ET made no finding of fact which would support an inference that race influenced Mr Fenwick QC's decision.

As for the incident in 2004 involving Mr Sabini and Mr Asif, the ET held at paragraph 604 that both Mr Fenwick QC and Ms Wiseman considered that it raised a more general issue about Ms Wiseman's management of the clerks' room. They held at paragraph 606 that there was concern on the part of Mr Fenwick QC and Ms Wiseman that the matter would be pursued at the EC including Ms Wiseman's management of the clerks. The ET held at paragraph 607:

"In summary, to the extent that there was some management with a view to "containing" Mr Asif's reaction to this episode, the driving force seems to have been concern on the part of Ms Wiseman, in relation to which she received the support of Mr Fenwick, to contain the impact on the reputation of the clerks' room as a whole, and the perceived attack upon the competence of her management."

Mr Leiper submitted that the ET did not find that a reason for the treatment of Mr Sabini for the 2004 incident was race.

The ET found it "unsurprising" that Mr Sabini was offered the opportunity to resign over the Ms P incident in 2006. Mr Leiper submitted that no specific challenge is made to that conclusion. There is nothing to suggest that giving Mr Sabini the opportunity to resign was a detriment to Dr Bijlani or was on grounds of race.

Accordingly Mr Leiper submitted that the conclusion reached by the ET in paragraph 614 was unassailable. They concluded that even if the three episodes, the subject of Complaint 8 were capable, conceptually, of amounting to detrimental treatment of Dr Bijlani, the treatment was not on grounds of race.

Mr Leiper pointed out that the ET rightly treated Complaints 9 and 10 as discrete subjects. As for Complaint 9, failures regarding equal opportunities training for the clerks and monitoring their conduct and performance and failure to appoint an Equal Opportunities Officer or Committee in paragraph 553, in relation to another complaint which was not found to be established, the ET held that:

"…what had been done nevertheless fell short of the standards of best modern practice in this area, for example in relation to the frequency and coverage of training, and the definition and profile of the equalities officer role."

The ET correctly directed themselves:

"What we have had to decide was whether the reason why this state of affairs existed, involved discriminatory grounds or other unlawful treatment as claimed."

Mr Leiper submitted that the ET directed themselves to consider the relevant issues. The ET concluded in paragraph 585 that the failures alleged in Complaint 9, did show less than best practice. However the ET were satisfied that the explanation for the way in which these matters were handled did not include any element of detrimental treatment of Dr Bijlani on grounds of race. Whilst the ET referred to the handling of these matters being "not in any sense targeted at" Dr Bijlani, these failures were not inherently discriminatory and the ET accepted the Respondents' explanations for the matters criticised. Mr Leiper drew attention to the judgment of the Court of Appeal in Qureshi v London Borough of Newham [1991] IRLR 264 in which it was held that there was no basis for inferring that a failure to apply equal opportunities policies was discriminatory. It could not be assumed that such a policy would apply to a person of a different racial group. Mr Leiper submitted that the ET did not err in dismissing Complaint 9.

Complaint 10 was of the decisions to appoint Messrs Peck, Purse and Sabini to clerk Dr Bijlani. Mr Leiper pointed out that there was nothing inherently discriminatory in the appointment of Messrs Peck, Sabini and Purse to clerk Dr Bijlani. The finding of the ET at paragraph 586 that:

"There was no basis to conclude that she was, consciously or unconsciously, given any of these clerks as an act of detrimental treatment on grounds of race, related to her disability or by way of victimisation."

was not reached in error. In paragraph 14 of his skeleton argument Mr Green QC alleged that if keeping the clerks in 2000 for reasons which should be regarded as on grounds of race, rostering clerks from this pool to clerk Dr Bijlani is not an answer to the allegation that allocating the clerks to her was on such grounds. The ET did not accept Dr Bijlani's evidence that she asked not to be clerked by Mr Peck. In 2001 she had the opportunity to say she did not want to be clerked by Mr Sabini but she did not do so. The ET found at paragraph 155 that on the only occasion Dr Bijlani made a specific clerking request when following the issue of proceedings in 2009 she asked no longer to be clerked by Mr Purse, Mr Barrass replaced him. Mr Leiper contended that the ET did not err in dismissing Complaint 10.

The appeal had been argued as a challenge to the findings of the ET on direct race discrimination. Although permission to proceed to a full hearing was not given on this basis, if it were to be contended that the decision to retain the three clerks in 2000 was an act of harassment and the ET erred in not so finding, Mr Leiper contended that such an appeal should be rejected for the same reasons as the appeal from the dismissal of the claims of direct race discrimination fail.

Mr Leiper submitted that if any of the grounds of appeal were to succeed the claim would have to be remitted to the ET in any event to determine whether discretion should be exercised to extend time to permit Dr Bijlani's claims 8, 9 and 10 to be heard. They were presented out of time. The complaint in relation to the 2000 incident was presented eight years out of time and that relating to the 2006 incident 18 months out of time. Mr Leiper pointed out that the ET made at paragraphs 730 to 734 specific findings whether time should be extended to hear the reasonable adjustments claim. They rejected the submission that time should be extended on just and equitable grounds. However Mr Leiper recognised that if the claims were to be remitted the issue of whether the complaints were presented in time and if not, whether time should be extended on just and equitable grounds would have to be considered by the ET.

**Discussion and Conclusion**

The ET rightly observed at paragraph 615 that the matters raised in Complaints 8, 9 and 10 did not occur during the period when Mr Powell QC was Head of Chambers. In light of all their other findings the ET held that there was no basis to find that he had treated Dr Bijlani unlawfully in relation to Complaints 8, 9 and 10. There is no appeal against this finding.

This appeal turns principally on whether the ET erred in failing to hold that the decision not to dismiss Messrs Peck and Sabini in 2000 was taken on grounds of race. The foundation for this argument is that the ET held at paragraph 593 that the EC in particular were motivated "in part" that the outcome of the practical harm to chambers by the loss of Messrs Peck and/or Sabini be avoided. Drawing on comment in paragraph 607 it was said that the reference to "in part" left open the possibility that the decision was taken to avoid the reputational damage to chambers if it became known by their dismissal, that there had been racists in the clerks' room.

Whilst this argument more naturally engages the question of whether the ET erred in holding that the decision not to dismiss was not taken on grounds of race, it was made clear by the letter from the EAT of 12 June 2012 that the point which was held arguable also has a bearing on whether the ET erred in holding that Dr Bijlani had not been subjected to a detriment.

Langstaff J considered there was an arguable point meriting a full hearing albeit he reached this decision:

"With considerable hesitation and not a few misgivings." (Transcript of Rule 3(10) Hearing 19.05.11 paragraph 1)

In paragraph 454 the ET correctly directed themselves that:

"…a 'detriment' does not necessarily have to involve some physical or economic consequence: it is to be determined by reference to the reasonable view that the recipient of the treatment would or might take of it."

The ET referred in a footnote to Shamoon [2003] ICR 337. In considering the scope of the word 'detriment' in the Northern Ireland legislation equivalent to RRA, Lord Hope held at page 349 paragraph 34:

"As May LJ put it in De Souza v Automobile Association [1986] ICR 514, 5229, the court or tribunal must find that by reason of the act or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work."

The test of whether a claimant has been subjected to a detriment by an act of race discrimination is purely one of causation. Intention is not material or necessary to establish that a claimant has been subjected to a detriment. The question as in the passage in Lord Hope's speech at paragraph 34 is whether "by reason of the act or acts complained of" a detriment was suffered. Accordingly in our judgment the ET erred in holding at paragraph 588 in dealing with Complaint 8:

"There has to be some factor operating on the mind of the decision-maker, whether consciously or unconsciously, which relates to the person alleging detriment, or at least a specific defined groups of which she is a member. That feature was absent in this case and therefore we found that none of the decisions relating to the handling of these episodes constituted detrimental treatment of the Claimant."

Whilst the reference by the ET to Shamoon in the footnote to paragraph 454 indicates that they were considering "detriment" as set out in RRA Section 26A (2)(d), in our judgment there is force in the observation in Mr Leiper's skeleton argument at paragraph 68 that in paragraph 588 the ET were grappling with whether Dr Bijlani could complain of discrimination at all. Had she been treated less favourably?

The ET observed at paragraph 588:

Moore-Bick LJ dealt with the consequence of the treatment complained of having "some effect" on the claimant. He made clear at paragraph 21:

"I accept that to demonstrate some effect on the claimant is sufficient to establish less favourable treatment…"

Whether the ET were referring in paragraph 588 to detrimental treatment as less favourable treatment than a comparator or to detriment caused by such treatment, in our judgment they erred in holding that "some impact" of such treatment was not sufficient to establish less favourable treatment of Dr Bijlani or that she had suffered a detriment. In this respect too in our judgment the ET erred in deciding whether Dr Bijlani had been subjected to a detriment.

The ET found that their decision that the Respondents' handling of the three episodes the subject of Complaint 8 did not constitute detrimental treatment of Dr Bijlani was very finely balanced. They explained in paragraph 589 that if they were wrong on this point then they:

"…deliberated what, in light of our findings of fact, we thought we have learned from their handling of these various episodes, about the reasons for the actions of Mr Fenwick, Mr Stewart and Ms Wiseman."

The ET considered the reasons for the actions of Mr Fenwick QC, Mr Stewart QC and Ms Wiseman in order to determine whether they were taken on grounds of race.

Whilst in considering Complaint 8 the ET clearly distinguished between the question of whether Dr Bijlani had been subjected to a detriment and if so whether it was on grounds of race, this is not so in relation to Complaints 9 and 10.

The ET held in relation to the matters complained of in Complaints 9 and 10 that they were satisfied that they "did not include any element of detrimental treatment of the Claimant on grounds of race" (Complaint 9, paragraph 585). They held that re-allocation of clerks to members of chambers gave rise to "no basis to conclude that she was, consciously or unconsciously, given any of these clerks as an act of detrimental treatment on grounds of race…" (Complaint 10 paragraph 586). If and to the extent that the ET considered the treatment of which complaint was made was consciously or unconsciously "targeted" at the complaint as relevant to the question of whether she suffered a detriment by reason of those acts they erred. However it is clear that the ET in dealing with each of these complaints considered whether such action was taken on grounds of race. It is only if the ET erred in their consideration of that issue that the appeal against the dismissal of those claims could succeed.

The ET directed themselves at paragraph 454 to consider whether the treatment of which complaint was made was on grounds of race by asking the question "why did the treatment occur?" The ET held at paragraph 455:

"For there to be discrimination on racial grounds, or victimisation, the proscribed grounds do not have to be the sole or main reason for the treatment:

…discrimination requires that racial grounds were a cause, the activating cause, a substantial and effective cause, a substantial reason, an important factor. No one phrase is obviously preferable to all others, although in the application of this legislation, legalistic phrases, as well as subtle distinctions, are better avoided so far as possible. If racial grounds or protected acts had a significant influence on the outcome, discrimination is made out.

The introduction of the statutory burden of proof provisions has not altered that test, as such, and the "merely trivial" still falls below the threshold of unlawful treatment. We understood the terms "significant", "material" and "non-trivial" all to be directing us to the same test."

In a footnote the ET recorded that:

"We note that, in R v Governing Body of JFS [2010] IRLR 186, Lord Phillips, the President of the Supreme Court, said, citing Nagarajan and earlier authorities, that "grounds" refers not to motive, but to the "factual criteria applied by the discriminator in reaching his decision" or "which influenced the discriminator to act as he did"."

It is clear from the speeches in JFS that in deciding whether action complained of was taken on grounds of race a distinction is to be drawn between action which is inherently racially discriminatory and that which is not. To establish that the action was taken on racial grounds in the former case motive or intention of the perpetrator is irrelevant. In the latter it is relevant. Lord Mance held at paragraph 78:

"Direct discrimination can arise in one of two ways: because a decision or action was taken on a ground which was, however worthy or benign the motive, inherently racial within the meaning of section 1(1)(a), or because it was taken or undertaken for a reason which was subjectively racial: R v Birmingham City Council, Ex p Equal Opportunities Commission [1989] AC 1155, 1194 C-D per Lord Goff of Chieveley, James v Eastleigh Borough Council [1990] 2 AC 751, 772 B-G per Lord Goff, and Nagarajan v London Regional Transport [2000] 1 AC 501, 511A, per Lord Nicholls of Birkenhead, and 520H-521B per Lord Steyn."

Lord Clarke at paragraph 132 stated:

"I agree with Lord Mance JSC that there are two ways in which direct discrimination can be established. The first is where, whatever the motive and whatever the state of mind of the alleged discriminator, the decisions or action was taken on a ground that was inherently racial and the second is where the decision or action was taken on a ground that was subjectively racial."

In this case it has not been found that the actions complained of were taken on inherently racial grounds. Accordingly the ET rightly considered the reason why the decisions or actions the subject of Complaints 8, 9 and 10 were taken.

Whereas intention or motivation is not relevant to the question of whether Dr Bijlani was subjected to a detriment and would not have had relevance if the matters complained of were inherently racially discriminatory they are relevant, as explained in JFS by Lord Clarke amongst other members of the Supreme Court at p789, paragraph 145 in considering whether an action which is not inherently discriminatory was taken on grounds of race.

The principal argument that the ET erred in failing to hold that the decision not to dismiss Messrs Peck and Sabini in 2000 was taken on grounds of race was that the finding that the decision of the EC was motivated "in part" by a desire to avoid harm to chambers by the loss of the two clerks left open the possibility that there were other racially discriminatory reasons for the decision not to dismiss them.

The argument advanced by Mr Green QC was, in effect, that the unexpressed reason for deciding not to dismiss was or was likely to be that the reputational damage from the clerks' room being identified as racist in any disciplinary proceedings, resulting in dismissal and potential ET claims militated against dismissing the clerks.

We will consider whether there is any foundation for this argument in the contentions advanced to the ET on behalf of Dr Bijlani, and the findings of fact made by them.

The argument advanced by Mr Green QC at the rule 3(10) hearing and before us was not set out in the ET1 in paragraph 10.1:21 in which Dr Bijlani deals with the 2000 incident. The case put on behalf of Dr Bijlani before the ET was that the 2000 episode was not treated with the seriousness that it warranted (paragraphs 590 and 591). The ET recorded that counsel for Dr Bijlani was contending:

"…that any employer treating this matter seriously would, after due investigation, and in light of the facts that emerged, have followed Mr Gibson's recommendation and dismissed Mr Peck and Mr Sabini."

Further, the ET recorded at paragraph 591 that it was a particular strand of Dr Bijlani's case put by her counsel to Mr Fenwick QC in cross-examination that he conducted his meeting with Ms P and her husband with a view to a full and final settlement calculatingly, in order to facilitate the specific objective of enabling the clerks concerned to remain in chambers' employment. It appears that it was not part of the case advanced on behalf of Dr Bijlani before the ET that the decision not to dismiss Mr Peck or Mr Sabini for the 2000 incident was taken in part as a concern lest the clerks' room be identified as racist and chambers tolerating a racist clerks' room. Nor was the argument raised on the original grounds of appeal settled by counsel who appeared for Dr Bijlani at the ET or the amended grounds settled by Dr Bijlani herself. The argument appears to originate from submissions made by Mr Green QC at the rule 3(10) hearing.

The ET set out their findings of fact regarding the 2000 incident in paragraphs 221 to 234. At paragraph 226 they set out the outcome of the meeting between Ms P and her husband and Mr Fenwick QC. The ET found that:

"Ms P also conveyed to Mr Fenwick at that meeting that she did not wish to see the clerks concerned lose their jobs."

The ET record that at a meeting of the EC later that day their collective decision was not to accept the recommendation of Mr Gibson QC that the clerks be dismissed. They recommended that they be given written warnings and racial awareness training. The EC left the final decision to Mr Fenwick QC.

The ET made findings of fact regarding the meetings which Mr Fenwick QC thereafter had with Mr Asif and Dr Bijlani and which Ms Wiseman had with Ms Mirchandani. At paragraph 229 they held that Mr Fenwick QC told Mr Asif the main points of what was found to have occurred, the agreement in principle with Ms P, and the view of the EC that the clerks should be given written warnings. He invited Mr Asif's views, including any views on the proposed sanctions.

On the evidence at paragraph 231 the ET expressed themselves satisfied that when Mr Fenwick QC met Dr Bijlani he gave her the same essential details, including the envisaged sanctions, as had been given to Mr Asif and Ms Mirchandani. Having heard the evidence the ET made the following finding of fact in paragraph 232:

At paragraph 233 the ET found that at a full members of chambers meeting on 8 June 2000 there was "no significant mood of dissent" from the recommendation of the EC that Mr Peck and Mr Sabini be given written warnings. Mr Fenwick QC was to take the final decision on the disciplining of the clerks. The ET held at paragraph 234:

"Mr Fenwick's considered decision was that Messrs Sabini and Peck should each receive a final written warning and Mr Purse a written warning. All of them, as well as the other members of the administrative staff, were also given diversity training."

The ET set out their findings of fact on why the EC made its recommendation and why Mr Fenwick QC took his decision on disciplinary sanction. From footnote 63 to paragraph 593 it is apparent that the ET directed their minds to why the EC did not accept the recommendation of Mr Gibson to dismiss Mr Peck and Mr Sabini. The ET held at paragraph 592:

"We had no doubt that (looking at the matter, for the moment, entirely in isolation from what view may or may not have been taken of the incident itself) a significant number of members of chambers would have regarded it as a great loss if either one, and certainly both of them at the same time, were to go."

The ET concluded that in particular the EC was motivated in part to come to their decision by a desire not to lose the services of Messrs Peck and Sabini. On the findings of fact made by the ET did they or should they be taken as holding that a reason the EC decided not to dismiss the clerks was a fear of "reputational risk" to which chambers might be exposed if they took such action?

The ET thought it fair to assume that Mr Fenwick QC would have appreciated that it would be useful for him and the EC to know Ms P's views and intentions. By the time of the EC meeting it was known that a settlement was to be reached with Ms P and that she did not wish the clerks to lose their jobs. The ET recorded at paragraph 590 the reasons advanced by the Respondents for the decisions of the EC and Mr Fenwick QC:

"Specifically it was said that the aspect that particularly weighed with the EC and Mr Fenwick was the fact that Ms P had indicated that she did not want the clerks concerned dismissed; and that, having regard particularly to this aspect, together with the steps taken regarding equal opportunities training, the final outcome reflected that the whole episode was treated with the seriousness that it warranted."

At paragraph 591 the ET held by inference that the EC in particular wanted to retain the clerks. Mr Peck and Mr Sabini were regarded as able and good clerks. In the context of the "practical harm" to chambers' business which may be caused by their loss referred to in paragraph 592 it was not reputational damage but the damage the loss of one or two good clerks would cause to chambers. Nor in our view can it be inferred that part of the motivation for the EC's action was found by the ET or should have been so found on the facts to be:

"the reputational damage from the clerks' room being identified as racist in any disciplinary proceedings"

as submitted by Mr Green QC. We reach this conclusion for the following reasons. The ET made findings of fact about the reasons for the EC's decision advanced by the Respondents. They did not reject these reasons. If they were to have rejected them they would have made a finding to that effect. For example they expressly doubted at paragraph 605 the statement by Mr Asif that his reference to "cultural issues" in relation to the 2004 incident was not to race.

The ET went on to make a finding of the motivation of the EC which was not advanced by the Respondents. Since the reasons the Respondents gave for the decision of the EC were not rejected they formed part of the reasons. In our judgment there is no need to look further than those reasons set out in paragraph 590 to answer the question of what other reasons than the inferred desire to retain the clerks was being referred to in paragraph 593 as the part of the motivation of the EC. To read the judgment as suggested by Mr Green QC would be pure speculation. There is no need or justification for speculation when the ET had set out the other reasons for the decision of the EC advanced by the Respondents. Further the observations of the ET in paragraph 595 show that where they considered that a decision may have been influenced by reputational risk they said so. As can be seen from the observations of the ET on the way the case on behalf of Dr Bijlani was put and witnesses cross-examined it seems that it was not part of her case that the disciplinary decision in 2000 challenged in Complaint 8 was taken for reputational reasons.

In our judgment paragraph 593 read in the contexts of paragraphs 590, 592 and 595 does not leave open the interpretation that the ET found or should have found that a reason for the decision of the EC in 2000 was fear that dismissals of the clerks may lead to reputational damage to chambers for harbouring racists in their clerks' room.

The final decision on disciplinary sanction was left to Mr Fenwick QC. However the ET found that:

"…realistically, there would have been a heavy implicit pressure on him at this point, to follow the EC's recommendations unless subsequent events precluded him from doing so, or obviously dictated a reappraisal; but it appeared to him that they did not."

In our judgment for the reasons set out above there is no basis on which to conclude that the reason for Mr Fenwick QC's decision was based on an EC decision taken on grounds of race or that his decision was taken on grounds of race.

The submissions challenging the findings of the ET on the 2000 Complaint 8 were rightly directed to allegations of direct discrimination. The harassment provisions of RRA Section 3A did not come into force until 19 July 2003.

The ground of appeal relating to whether the Respondents' actions were on grounds of race was based on paragraph 593. This related solely to the 2000 incident. However Mr Green QC addressed arguments challenging the failure by the ET to find a wish by Ms Wiseman supported by Mr Fenwick QC to contain the reputational damage to the clerks' room following the 2004 incident of Mr Sabini's comment about Mr Asif led to a decision on grounds of race not to take more severe disciplinary action against the clerk. This amounts to a perversity challenge. In our judgment it was not perverse of the ET to fail to hold that because the driving force of the way in which Ms Wiseman supported by Mr Fenwick QC viewed the 2004 incident was a wish to contain the impact on reputation of the clerks' room, her decision to give Mr Sabini no more than an oral warning was taken on grounds of race. In any event it was not suggested if any other decision other than that dismissal for this offence should otherwise have been taken he would not have remained in the clerks' room.

Mr Sabini made deplorable and racist remarks to Ms P in 2006. The ET found at paragraph 608 "it unsurprising that Mr Sabini was offered the opportunity to resign". It was not perverse for the ET to fail to hold that Mr Sabini was allowed to resign to avoid the reputational damage through the clerks' room being identified as racist. There are no or no sufficient findings of fact to support such a contention.

In our judgment the ET did not err in concluding in paragraph 614 on Complaint 8 that they were:

"…satisfied that the explanations for the conduct both of [Ms Wiseman] and Messrs Fenwick and Stewart in relation to these matters did not include a failure to act more robustly on grounds of race."

As for Complaint 9, the ET found that chambers' handling of equal opportunities and diversity issues fall short of best practice. At paragraph 553 they directed themselves to decide:

"…whether the reason why this state of affairs existed, involved discriminatory grounds or other unlawful treatment as claimed."

The ET made findings at paragraph 554 that:

"Positive efforts were made, and, in so far as, by modern best standards, there were shortcomings in what was implemented and achieved, the explanations for this were not antipathy, but to do with matters of lack of appreciation of the full extent of actions that such standards required, issues of resource and time, the fact that the matter was handled 'in-house', views taken about priority areas for action, given the profile of this particular set and so forth."

In light of those findings of fact the ET did not err in concluding in paragraph 585 that they were satisfied that the explanation for the way in which equal opportunities matters were handled did not include any element of detrimental treatment on grounds of race. They rightly considered whether the reason this state of affairs existed involved discriminatory grounds or other reasons (see Qureshi paragraph 553).

As for the decisions to appoint Mr Peck, Mr Purse and Mr Sabini to clerk Dr Bijlani, the subject of Complaint 10, in our judgment the finding of fact by the ET in paragraph 586 that there was no basis to conclude that Dr Bijlani was given any of these clerks as a result of a decision taken whether consciously or unconsciously on grounds of race was not reached in error of law or perverse.

**Conclusion**

The ET did not err in dismissing Complaints 8, 9 and 10. The appeal is dismissed.

**Afterword**

We were much assisted by the careful preparation and presentations by counsel. We pay particular tribute to Mr Green QC who advanced at the rule 3(10) hearing and before us the best possible arguments which could be made in support of the appeal.

1 The ET noted at paragraph 42 that in closing submissions it was pointed out by the Respondents' counsel that Dr Bijlani did not identify whether her claim was on grounds of race, ethnic or national origin, colour or nationality. However this was not an issue before us or indeed before the ET.

Published: 30/12/2012 12:12

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