United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR J CAVANAGH (of Counsel) The Solicitor Wandsworth Borough Council The Town Hall Wandsworth High Street London SW18 2PU
For the Respondent	MR M FORD (of Counsel) Director of Legal Services UNISON 1 Mabledon Place London WC1H 9AJ


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal against a decision of an Industrial Tribunal held at London (South) on 28 January 1997 which held that it was just and equitable for the Applicant's complaints of unlawful discrimination, on grounds of race, to proceed to a full hearing on a date fixed in May 1997.

The parties to this appeal are the employers, the Appellants, the London Borough of Wandsworth and a named officer of the Council, who was the Applicant's line manager on the one hand, and the complainant, who is the Respondent to this appeal, a former employee of the Council, Ms Louis, who we shall call the Applicant, on the other.

In her Originating Application the Applicant complained of unlawful discrimination on the grounds of race and of constructive dismissal. The dates of her employment were, in her IT1, said to be between 24 September 1991 and 7 July 1996. In paragraph 11 of her complaint she wrote this:

"Constructive Dismissal and Racism

Constructive dismissal related to my treatment in the London Borough of Wandsworth, from December 1994 to 18 June 1996. A continuous and systematic campaign of harassment that made it unviable for me to remain in the authority as I could not work effectively. The situation was seriously impacting on my personal life. Over the period of December 1994 to 18 June 1996 my line manager behaved in an unprofessional and discriminatory manner towards me. This included rubbishing my work, deliberately sabotaging my professional development, questioning my integrity and honesty, and making allegations of a serious nature on my professional conduct, which if it had been allowed would at best have led to me being reprimanded, and at worst dismissal. The harassment was of such a nature and degree, that it forced me out of a secure job position and caused me out of desperation to take a short term contract."

It was, as it seems to us, clear that she was saying that she was subjected to a continuous course of mistreatment due to her race, which spanned the period from December 1994 to 18 June 1996, and that the person responsible for this alleged mistreatment was primarily her line manager, the Council's officer who was named as Second Respondent.

At the request of the Council the Industrial Tribunal made an order requiring the Applicant to:

"Give a full and detailed account of all events on which you rely to support your claim of constructive dismissal and discrimination."

That order was made on 14 August 1996 and she complied with it by providing a detailed typewritten document running to some 14 pages and 63 paragraphs. This written statement is coherent and sets out chronologically exactly what she is complaining about, with general and more detailed complaints. It also states what she says she tried to do to correct matters and the reasons why she did not take matters further. For example, she alleged that she told a more senior officer that she felt unsafe. She said, in colourful language, that in February 1996, and I quote, "I was left feeling anxious and terrorised". I quote paragraphs 59, 60 and 63 of the document:

"59. By the end of April it was clear that Ms Bean could never come to terms with my working as a resource officer; and that she would use every means in her power to force me out of that job. She had, in my view, deliberately sabotaged my Systemic Family Therapy training, then excused her behaviour by stating she did not think it was 'relevant to the work' I was doing; after herself, identifying it as essential and later, acknowledging that the training had been utilised in my work. She had rubbished my work to a number of people across the department, including in the forum of a business meeting with colleagues and managers I had to have a close working relationship with. She humiliated me by trying to force me to copy another worker's style of presentation, even though, by her own admission mine was considered appropriate by other relevant professionals outside of herself. She had fabricated a case of serious misconduct against me. Given the support she received from Ms Stern in this last mentioned matter, I was in no doubt that further allegations would happen. There was no supervision session in which Ms Bean did not attack my competence and casework decisions or make hurtful personal remarks.

60. Having the responsibility of a mortgage and a dependant child I could not walk out of the job as I felt increasingly pressured to do. I was so desperate that I took the first available post that I was offered, which is only on a two year fixed term contract.

63. After I presented my last assessment to the Specialist Childminding Panel on 14th June 1996, I was approached by Ms Stern who asked me for a leaving date. I said it was the 7th July 1996. Ms Stern stated that 'You have had a harassing year'. I asked Ms Stern what she meant by that remark. She stated that 'You've had a really harassing time with the situation you've had in work'. I was too surprised to respond and Ms Stern added, 'I realise the situation has not always been fair to you, but at least you have learnt some new skills'."

To this long account of her complaints, the Council responded with a 21 page document in September 1996. At paragraph 1.1 of the Council's long response, they said this:

"1.1 The Further and Better Particulars make clear that the Applicant complains about incidents and matters dating back to at least 1993. The Originating Application was presented on 22nd June 1996. The Respondent will say that the Applicant's complaints about incidents etc., which took place before 22nd March 1996 are out of time. Only paragraphs 58 to 62 of the 63 paragraphs of Further Particulars deal with matters arising within the period of three months before the Applicant's Originating Application was presented."

And at paragraph 1.4 they said:

"1.4 In addition, the Respondent respectfully requests a hearing before the Industrial Tribunal to determine which of the complaints made by the Applicant are in time. If the Industrial Tribunal finds that a number of the Applicant's claims are out of time, the duration of the hearing on the merits of the Applicant's claim is likely to be significantly reduced."

It will be observed at this stage that the employers, the Council, could not suggest that the Applicant's complaint of unfair constructive dismissal was out of time since her complaint was presented on 22 June. In any such hearing the Applicant would be relying on exactly the same facts and matters as she was relying on in relation to her complaint of unlawful discrimination. The unreasonable conduct by her employer, on which her constructive dismissal case rested, was, she says, racially motivated. Thus, a time point would not effect the admissibility of the very same evidence in relation to her complaint of unfair dismissal which it was sought to exclude in relation to her race complaint. Therefore, the only purpose of seeking to strike out her complaint of racial discrimination was because the remedies available to the Applicant would be substantially less if her race complaint could be suppressed.

Second, it was her case in relation to both complaints that she was subjected to a continuing course of conduct, which evidenced a practice of mistreatment, she says, because she was black. Looking at her pleaded case, it is clear, we think, that whatever the dates of the specific acts relied upon, her complaint of the unlawful practice was within time, having regard to the provisions of section 68(7)(b) and (c) of the Race Relations Act 1976. She was saying she was driven out of her employment by this alleged racially motivated mistreatment of her by her line manager, in particular.

Furthermore, having regard to the contents of her pleaded case, it was obvious, we think, that every Industrial Tribunal would be likely to say that it was just and equitable to allow her to seek relief in relation to her complaint of racial discrimination were they required to do so.

The substance of her complaint was that she was driven out of her job. If she were to succeed her compensation will stem from the loss of her job and for injury to feelings. Only to a very small extent, probably, will she be entitled to any remedy for the individual acts themselves. The Originating Application was presented within days of the doing of the real act complained of, namely the forcing her out of her employment which, she says, was due to unlawful pressure.

So it is against that background that we turn to the Industrial Tribunal decision in this case. In paragraph 2 of their decision they note that the complainant complains of a series of acts beginning with an allegation that she was humiliated in front of colleagues, in relation to an application for a promotion post, on explicit racial grounds on 2 February 1995, and some seven other incidents occurred between then and February 1996.

That statement in paragraph 2 of the Tribunal's decision is entirely based upon a document which was presented to them by the Applicant's representative at the hearing. No doubt, for ease of presentation, he had sought to summarise, in one sentence form, the various more serious specific incidents which the Applicant, herself, had referred to in her coherent long written statement.

In paragraph 4 the Tribunal say this:

"4. Mr Snow, on the Applicant's behalf, explained that she had been employed by Wandsworth Borough Council since 24 September 1991 and had got on well with the First Respondent ... until the events of February 1995. It was then that a series of acts [occurred].... Mr Snow told us that whilst to a lawyer it would have been obvious that she could bring a complaint immediately claiming the detriment of injury to feelings she felt that until she had resigned from her post in June 1996 that she had nothing concrete by way of loss to complaint about. Furthermore, the grievance procedures which applied to her provided her with no remedy within her employment in respect of racial discrimination by her manager".

In paragraph 5 the Tribunal say this:

"5. Mr Kavanagh for the Respondents said that it was clear that if the incidents of February 1995 were as serious as the Applicant claimed, she would have known that she had some remedy within the Race Relations Act which she could bring to a Tribunal and that section 2 of the Act prevented her from being victimised as a result of them being brought. Moreover, memories were bound to fade and it would be some 27 months between the original act complained of and the hearing of this case. It should therefore not be allowed to proceed. He conceded that the principal witnesses were still in post and could be contacted."

And at paragraph 6 they set out their decision:

"6. We sympathise with the Applicant's point and understood how if she was, as alleged, driven to resignation by her treatment she would want to wait until after she had resigned before bringing this action. Furthermore, we understood why she should wish to persevere at her job in the hope that things would get better. The time span of two years, although long, was by no means as long as we are used to seeing at this Tribunal and the series of acts complained of continued to within four months of the laying of the application. That seemed to us to be relatively recent and within the memories of those concerned. In all the circumstances we decided that it was just and equitable that these complaints be heard and allowed the case to proceed."

Mr Cavanagh, in a submission which he presented to us, points out that the Industrial Tribunal dealt with the case as though there were a series of one-off incidents rather than by reference to section 68(7). He observes that the Applicant was represented at the hearing by a trade union official, who put in the list of specific incidents, and did not make a submission that section 68(7) applied. He submitted that we, as the Employment Appeal Tribunal, could not, and should not, substitute our own view of the way that the complainant could, or might put her case. He said that parties must be allowed to advance their case in their own way and that it would be inappropriate, if not improper, for us to go behind the way that she chose to present her case. He said that, on the basis on which the Tribunal were asked to deal with the matter, it was right for them to treat all the allegations as though they were technically out of time and that she needed to invoke the Tribunal's wide discretion, which the statute gives them. But, he says, before exercising their discretion, the Industrial Tribunal would require evidence from the Applicant. It was not sufficient, he said, that her representative should tell the Industrial Tribunal why she had not presented complaints before. The Industrial Tribunal heard no evidence. Therefore, their findings and sympathy, which they expressed for the Applicant's point of view, was a finding which was wholly unsupported by evidence and could not be sustained.

We see the force of those submissions but, on the other hand, remind ourselves that the approach of Industrial Tribunals to evidence is less formal than is to be found in the Courts. Indeed, the Rules of Procedure of the Industrial Tribunals specifically contemplate that possibility. Paragraph 9.(1) of the rules provides:

"9.(1) The tribunal shall, so far as it appears to it appropriate, seek to avoid formality in its proceedings and shall not be bound by any enactment or rule of law relating to the admissibility of evidence in proceedings before the courts of law. The tribunal shall make such enquiries of persons appearing before it and witnesses as it considers appropriate and, ... shall otherwise conduct the hearing in such manner as it considers most suitable to the clarification of the issues before it and generally to the just handling of the proceedings."

It seems to us, on the particular facts of this case which can be regarded as special, the Tribunal were entitled to treat at an interlocutory stage, the extensive Further and Better Particulars, which the Applicant had provided, as a form of statement of evidence by the Applicant. That was a summary of the evidence which she was proposing to give.

Whilst we are prepared to accept that in almost every case on a time limit point the Tribunal may consider it sensible to hear some evidence, we fully understand that there may be cases, and this is one of them, where there is a real danger that, if they embark on a course of hearing evidence, there is no reason why they should not then go on to hear the whole of the case.

If the Applicant in this case had sought to give evidence as to why she was so frightened by her line manager that she was unable, or felt unable, to make a complaint to an Industrial Tribunal and thought it was better to hang on for as long as possible, having regard to her personal circumstances, then Counsel for the Council would have been entitled to cross-examine her about the validity of her belief and to challenge the factual basis on which she was relying. That would, in turn, have led to a trial of the very issues which will confront the Industrial Tribunal in May of this year.

It seems to us that what occurred in this case was that her representative, who was not legally qualified, was simply making submissions to the Industrial Tribunals about the nature of the case, which was being advanced, and which was fully documented in the extensive documentation which the Applicant has provided pursuant to the Court's orders. He was indicating that it was her case that she could not reasonably have been expected to have made her complaint before.

Having regard to the overlap between the issues, which they were bound to hear in any event, that is, between the constructive dismissal and race discrimination issues, it is not in the slightest bit surprising, as it seems to us, that the Tribunal should take the exceptional course in this case of not requiring her to give evidence.

So we are prepared to conclude, on the special facts of this case, that they were quite entitled to act as they did, albeit that it was an unusual course for them to have adopted.

For the reasons we have already given, it was, in any event, an empty application which was before them since, in our judgment, it is manifestly clear that this complainant, right or wrong, is saying that she was driven out of her employment by a course of conduct which represented some kind of practice being put into operation against her such that these were not one-off incidents, as was apparently the basis on which it was being put before the Industrial Tribunal, but rather a course of conduct with continuing effect within Section 68(7).

Accordingly, despite the interesting argument which was addressed to us, we regard the position adopted by Mr Cavanagh as technical and without merit and we are happy to be able to dismiss this appeal as we do.