United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1022_95_0105

Appeal No. EAT/1022/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 1 May 1996

Before

THE HONOURABLE MR JUSTICE BUTTERFIELD

MR R SANDERSON OBE

MRS R A VICKERS

---

LONDON BOROUGH OF CAMDEN          APPELLANTS

MR V FANAWOPO          RESPONDENT

---

Transcript of Proceedings

JUDGMENT

Revised


 


---

APPEARANCES

For the Appellants MR D A PEARL

(Of Counsel)

The Borough Solicitor

London Borough of Camden

Town Hall

Judd Street

London

WC1H 9LP

For the Respondent MR S M LAXHA

(Of Counsel)

MR V FANAWOPO

2 Mackeson Road

London

NW3 2LT


 


MR JUSTICE BUTTERFIELD: By a decision promulgated on 9 August 1995, the Industrial Tribunal sitting at London (North) unanimously held that the London Borough of Camden had discriminated against Mr Fanawopo contrary to the Race Relations Act 1976. The Tribunal awarded Mr Fanawopo £10,000 in compensation. Against that decision, the Appellants, London Borough of Camden, now appeal. The Respondent, Mr Fanawopo, has abandoned his own cross-appeal in respect of the award of compensation. The cross-appeal therefore is dismissed.

Although the history of this matter is complicated in its detail, the essential facts are on the findings made by the Tribunal clear. The Respondent is a solicitor. He was admitted in 1990, having completed his Articles in a small London firm, where he gained experience in a wide spectrum of the law. He remained with those solicitors until the autumn of 1992, when he was made redundant. He then obtained employment with the Appellants as a locum Assistant Solicitor in general litigation. Thereafter, he continued in employment with the Appellants as a locum solicitor, on a series of short-term contracts, each of which was renewed until 31 March 1994.

In July 1993, Ms Kelly was appointed Borough Solicitor to the Appellants, a position she took up in November 1993. In January 1994 Mr Hopkins who had been a colleague of Ms Kelly's at her earlier place of work, was appointed as a Senior Solicitor. By January 1994, the litigation team in the Appellant's Legal Department comprised twenty-three people, headed by a principal solicitor and divided into three teams. The Respondent worked in one of those teams headed by Mr Hopkins. The evidence which was accepted by the Tribunal, clearly establishes that by early 1994 the Appellant's Legal Department was administratively cumbersome and inefficient. Ms Kelly the new Borough Solicitor, decided that the department should be restructured and part of that process involved the creation of a post of permanent Assistant Solicitor within a new general litigation team.

The Respondent's contract as a locum solicitor was due to expire on 31 March 1994. He discussed his future with the Appellants in February and March. On 16 March he was told by Ms Kelly that his contract might not be renewed. First, because funding might not be available and secondly, because even if funding was available, she was not happy about the way in which he had discharged his work as a locum solicitor. On 18 March the Respondent went on holiday. Whilst on holiday, he applied for the new post of permanent Assistant Solicitor, which had by now been advertised. The Respondent's contract was not renewed, so that he ceased to be employed by the Appellants at the end of March.

On his return from holiday in early April 1994, he learned through outside sources, that the Appellants were seeking to recruit a locum Assistant Solicitor with ability to do employment law. That was precisely the same work that the Respondent had carried out for the Appellants. The Respondent applied for this position. Having heard indirectly about the post to which we have referred, he spoke on 7 April 1994 to Mr Carmichael the Director of Corporate Services and the person to whom Ms Kelly reported, expressing his concern about the situation. Mr Carmichael promised to write to Ms Kelly, which he did on 8 April 1994, stating that the Respondent was "beginning to smell an extremely large rat". Although there is no express finding by the Tribunal on this issue, the only sensible inference in our judgement to be drawn from that observation, is that Mr Carmichael had gained the clear impression that the Respondent thought he was being discriminated against in some way.

On 12 April 1994, Ms Kelly, who had herself just returned from holiday, spoke to the Respondent on the telephone. The Respondent's evidence was to the effect that he told Ms Kelly that her actions in failing to renew his contract, in his view, amounted to race discrimination against him. The following day (13 April) Ms Kelly, Mr Hopkins and another employee considered the applications for the post of permanent Assistant Solicitor. The Respondent was not shortlisted for interview. On 15 April 1994, the Respondent wrote to Ms Kelly setting out his views of her attitude. He wrote:

"The arguments you have raised to support your decision appear to amount to direct discrimination against me when the actions taken in pursuant of these arguments are examined.

You will be aware that I have applied for both the permanent and locum assistant solicitor posts that you have advertised and await your decision as to my suitability for an interview for both these posts."

He sent a copy of that letter to Mr Carmichael in which he reiterated his concern that Ms Kelly's actions were racially motivated. Over the next few days the Appellant's considered the applications for the post of locum solicitor. Again, the Respondent was not shortlisted for interview. On 27 April 1994 Ms Kelly replied to the Respondent's letter. She set out in detail her response to the Appellant's complaints and herself raised allegations of unprofessional conduct against the Respondent. The letter concluded with these paragraphs:

"I have taken the trouble to set these matters out and given you a full reply to your letter because it clearly contained a veiled threat of legal action. You accuse me of discrimination.

I do not believe that I have in any way treated you differently from other locum staff employed last year. Indeed as I have explained to you in this letter, all our locum staff whose funding depended on additional contributions from the client departments left at the end of the financial year.

However you need to be aware that not only will any claim be vigorously resisted, but will expose you to serious charges relating to your professional conduct and competence, which will establish beyond doubt why I was not anxious to retain you in the Council's employment for a further term."

The Tribunal concluded having heard the evidence in this matter, that the last paragraph of this letter was a threat of an unpleasant nature with no substantive facts to support it. That conclusion cannot be and is not challenged by the Appellants. Much time was spent at the Tribunal hearing which lasted no less than seven days, in investigating the allegations of unprofessional conduct made against the Respondent: both the allegations contained in the letter of 27 April 1994 and additional allegations raised by the Appellants in the course of the Tribunal hearing. Those allegations were all rejected by the Industrial Tribunal as unfounded and unsubstantiated. Indeed there was a raft of evidence before the Tribunal speaking highly of the Respondent's legal ability and professional integrity. The Respondent was described by wholly independent witnesses who had enjoyed the benefit of his services, as very conscientious, hard-working, efficient, courteous and professional.

Against that background, the Tribunal considered the allegation of victimisation. They set out the relevant statutory provisions, reminded themselves of the burden and standard of proof and identified the matters which, under the relevant legislation, they were required to address. It is accepted by the Appellants that the Tribunal correctly directed itself on all relevant matters of law. The Tribunal found as a fact that Ms Kelly and Mr Hopkins had made up their minds that they would not consider the Respondent for either the post of permanent assistant solicitor or that of locum solicitor. The reasons advanced by them for not so considering the Respondent, namely, that he was not competent to do the work and did not have sufficient experience, were rejected by the Tribunal. Their findings were summarised in paragraph 23 of the decision. It reads as follows:

"Mr Hopkins and Ms Kelly said that the reason they did not wish to consider Mr Fanawopo was because they did not believe he was competent to do the work, that is carry the caseload, and that he had not experience save in the employment field. We find these not to be convincing reasons having regard to the evidence of Mr Fanawopo's witnesses as to his capabilities and his personality. He undoubtedly spent the last part of his period as a Locum Assistant Solicitor dealing only with employment law, but when he was with a private firm he had experience of general litigation and as a qualified solicitor he would be perfectly capable of picking up the necessary skills. We are satisfied having regard to Ms Kelly's letter of 27 April, and in particular the last three paragraphs, and her evidence, that she was outraged at being told she was discriminating. We find whether consciously or unconsciously this was the substantial reason for her refusal to consider Mr Fanawopo for the locum post that was advertised in April or for the permanent post. The locum post was in effect one which he had been doing, and doing successfully, while employed by the Respondents. This means that she has discriminated against Mr Fanawopo contrary to Section 2(1)(d) in that she treated Mr Fanawopo less favourably than she would have treated other persons because he had alleged she had committed an act of racial discrimination. As a result of that victimisation, we find Mr Fanawopo was not shortlisted for the post of Locum Assistant Solicitor or for the post of Permanent Assistant Solicitor."

The Appellant's submit that the Tribunal fell into error in two respects. First, it is submitted, as a discrete point, that on the facts of the case, there was no evidence to justify the finding that the reason for not shortlisting the Respondent for the permanent post was because he had alleged Ms Kelly was discriminating against him on racial grounds. It is asserted that, in reality, the first occasion on which Ms Kelly was aware of any such suggestion, was on receipt of the Respondent's letter of 15 April. Such indeed was the submission of the Appellant's to the Industrial Tribunal. Because of the way in which the case proceeded before the Tribunal, as a result of the illness of the Respondents' Counsel, closing submissions in this case were made in detail in writing. Thus when it came to consider its decision, the Industrial Tribunal had the considerable benefit of closely argued written submissions on both sides.

On this particular issue, the Appellant submitted that discrimination by way of victimisation did not arise in the case of the shortlisting for the permanent post, because of the chronology. For the Respondent it was submitted, that the shortlisting for the permanent post took place on 13 and 14 April, after the Respondent had complained about race discrimination in his conversation with Ms Kelly on the 12 April. There was plainly evidence which entitled the Tribunal to conclude that Ms Kelly had been told of the Respondent's views by him that she had racially discriminated against him, the very day before the shortlisting procedure for the permanent post took place. The Industrial Tribunal decision is silent on this point and makes no reference to the detailed evidence in relation to the conversation. Mr Pearl submits that we should conclude therefrom that the Industrial Tribunal did not act upon the evidence and thus could not have found as they did. We reject that submission. The point was plainly before the Industrial Tribunal in writing for their consideration. They cannot be expected to refer to every piece of evidence. Whilst it might have been better had they mentioned the conversation in their reasons, we are quite unable to conclude from their failure so to do, that they found that the first occasion on which Ms Kelly was aware of such a suggestion was after receipt of the letter of 15 April 1994. Such a conclusion would fly in the face of the rest of the decision.

The central thrust of the Appellant's case however rests on the findings set out in paragraph 23 to which we have referred. First, it is submitted that the Tribunal entirely omitted to consider the necessary causative link between the protected act, in this case the allegation that the Appellants had racially discriminated against the Respondent, and the victimisation, in this case the exclusion of the Respondents from the two shortlists. It is submitted that the Tribunal should have asked themselves whether the Appellants, in not shortlisting the Respondent, had treated him less favourably than they would have done had he not made the allegation of racial discrimination. We of course accept that the causative link must be established: See Aziz v Trinity Street Taxis Ltd [1988] IRLR 204.

In our judgement, the decision taken as a whole, incorporating as it does a citation of the relevant statute, and a proper direction on the law to be applied, cannot sensibly be criticised on this ground. The words of the decision make it quite clear that the Tribunal rejected the explanation advanced by the Appellants for not including the Respondent on the shortlist. The Tribunal further found that Ms Kelly was outraged by the suggestion she had racially discriminated against the Respondent, and were satisfied that the substantial reason for not including the Respondent on the shortlist, was because he had told her she was discriminating against him. That chain of reasoning is quite sufficient to demonstrate that the causative link was considered and applied. Mr Pearl further submits that the decision is deficient in spelling out the nature of the Appellant's complaints against the Respondent and its specific findings in respect of each. We reject that complaint. It was not incumbent upon the Tribunal to deal with the detail. They found that the evidence of others established the Respondent's competence and that his employment history established his necessary experience to do the jobs for which he was not short-listed.

The final matter on liability concerns the use of the words "consciously or unconsciously" in paragraph 23. Mr Pearl submits that it is not enough for the Respondent to prove, as he did, that Ms Kelly was outraged at his allegation that she was racially discriminating against him or that this outrage at the suggestion was what caused her deliberately to omit him from the shortlists, which again he did. The Respondent must go further, it is submitted, and prove that when Ms Kelly determined that he should not be shortlisted, she made that decision consciously, that is knowingly, knowing that what motivated her was the outrage at his allegation. In reliance for that submission, Mr Pearl points to the decision of Aziz. The facts of that case are very different to the matter before us and do not require to be repeated by us. It concerned the consideration in particular of Section 2(1)(c) of the 1976 Act.

In giving the judgment of the Court of Appeal, Lord Justice Slade said this:

"We accept that a person can treat another `less favourably than ... he treats or would treat other persons' within the meaning of the opening words s.2(1), even though the relevant treatment itself has no racial element. Paras.(a),(b),(c) and (d) of s.2(1) however, are all concerned with the motive which caused the alleged discriminator to treat the complainant less favourably than other persons. In our judgment para.(c) no less than paras.(a),(b) and (d) contemplates a motive which is consciously connected with the race relations legislation."

It is submitted that since the Tribunal here found that Ms Kelly may not have appreciated that what had motivated her was the allegation that she had racially discriminated against the Respondent, even though that was in fact what had motivated her, the Respondent has failed to prove his case.

It is submitted on behalf of the Respondent that firstly: this is a new point, in the sense that it was not advanced in the original grounds of appeal. That may be so, but if necessary we grant any appropriate leave to amend. The Respondent further submits that we should simply ignore the words "consciously or unconsciously" and treat the decision as if those words were simply not there. That submission is based on the proposition that looked at as a whole, the Tribunal cannot possibly have intended by them to indicate that Ms Kelly did not fully appreciate what she was doing and the reasons why she was doing it, and that therefore those words must have crept into the decision by oversight or mistake.

The final alternative it is submitted, that if there was a mis-direction by the Tribunal here, this Court should ask itself whether had there not been that mis-direction, would the result have been any different. We are very conscious of the importance that both parties attach to this decision as has been made plain to us. We have not found this an easy matter to resolve. But in the end, and after considerable hesitation, we have come to the conclusion that there is here an ambiguity of considerable importance in the decision. That ambiguity must be resolved. That will not be a matter of great difficulty.

We propose to remit this decision to the Industrial Tribunal which decided it, for them to consider whether on the balance of probabilities, the reason that they have found for excluding the Respondent from the shortlist was reached consciously or unconsciously. If it was reached unconsciously, it seems to us that the Respondent will not be entitled to any award by way of compensation. If it was reached consciously, he will be entitled to an award by way of compensation. That would be a matter for the original Tribunal.

We consider now the question of compensation. As we have already indicated, this Tribunal saw and heard the witnesses over a period of several days. Having performed that exercise, the Tribunal concluded that Ms Kelly and Mr Hopkins had made unsubstantiated and unfounded allegations about the Respondent's professional conduct. He was, they found, angry and insulted by such allegations. The Tribunal observed that to question a person's professional integrity is a very serious matter indeed, and that this was a serious case of victimisation causing serious injury to the feelings of the Respondent. Those are findings of fact made by the industrial jury. We could not and do not seek to disturb a single one of them. It was, in those circumstances, a matter for the experience and good sense of the Industrial Tribunal Chairman and her assessors, to determine what compensation should here by awarded. The size of the award was substantial. So, according to the findings of the Tribunal, was the injury done to the feelings of the Respondent. In our unanimous judgement the size of this award was not outwith a reasonable award and was certainly not one which no reasonable Tribunal could have reached.

The Tribunal had the advantage of very detailed written submissions about the matters which it was invited to take into consideration in determining its award. In our judgement it was plainly a justified award in all the circumstances. The Appellants submit that the Tribunal has failed to take into consideration the fact that the Respondent's feelings may well have been hurt before the acts of victimisation found to be proved; that undue weight was given to the professional status of the Respondent and that it may be the Tribunal has taken into consideration events which did not form part of the original allegations of professional incompetence.

We have considered all those submissions, but none of them persuade us to disturb in any way the findings made by the Tribunal. The appeal is therefore allowed to the limited extent that we have indicated. It will be a matter for the parties as to whether they think any further money need be directed at this litigation. That is the order we make.