United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	DAVID BEAN QC Messrs Harvey Ingram Owston Solicitors 20 New Walk Leicester LE1 6TX
For the Respondent	ALTHEA BROWN (of Counsel) Instructed by: Mr A Jha Commission for Racial Equality Elliot House 10/12 Allington Street London SW1E 5EH


 


MR JUSTICE KIRKWOOD: This is an appeal by the Post Office and Mr Cook from the decision of an Industrial Tribunal sitting at Bedford on 13th, 14th and 15th November 1996 that the appellants had discriminated against Mr Chin on account of his race.

The relevant statutory provision is to be found in the Race Relations Act 1976, s.4(2)(c):

"(2) It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee-

...

(c) by dismissing him, or subjecting him to any other detriment."

The important words for the purposes of this appeal are "subjecting him to any other detriment".

At the same time, the Industrial Tribunal dismissed Mr Chin's complaint of victimisation.

Mr Chin began work for the Post Office on a casual basis as a Postal Assistant in January 1995. In due course Mr Cook, the Operations Service Manager (who is the second appellant), decided to appoint Mr Chin to a permanent post, initially for a probationary period of six months.

Mr Duckett was Mr Chin's Supervisor. Mr Chin has no complaints about the time when Mr Duckett supervised him. But at times when Mr Duckett was not there, Mr Chin's Line Manager was a Mr Bruce, an Acting Manager.

Over the period of his employment, Mr Chin had a number of complaints. All were considered by the Industrial Tribunal and all but one held by the Industrial Tribunal to be ill-founded.

During his probationary period Mr Chin was, like others, assessed on his performance.

Mr Chin's first assessment was by Mr Bruce on 5th April 1995. It was satisfactory. His second, also by Mr Bruce, was on 16th May and was not satisfactory. His continued employment was not recommended.

Mr Chin thereupon raised his various complaint with Mr Bruce and an arrangement was made for Mr Chin to see Mr Cook on 18th May.

On 18th May, Mr Cook discussed with Mr Chin Mr Chin's under performance; and Mr Chin raised his various complaints.

The story is taken up in the extended reasons:

"2(10) However, when Mr Chin told Mr Cook that he was upset by the racist remarks directed at Mr Hollist, Mr Cook outlined to Mr Chin the First Respondents' policy and procedures relating to harassment and explained the First Respondent's guidelines designed to prevent and deal with harassment. ... Mr Cook further asked Mr Chin if he wanted to make a formal complaint and offered his support to Mr Chin should he wish to make a formal complaint. Mr Chin did not wish to do so.

(11) Immediately after the meeting with Mr Chin on the 18th, Mr Cook asked Mr Bruce to investigate the issues surrounding the alteration of Mr Chin's time sheets and also the issues surrounding the racist remarks. Mr Chin had identified two employees, namely Mr C Bull and Mr G Gould as those making the remarks in question. Mr Cook instructed Mr Bruce on how to deal with the matter. He did not deal with it himself.

(12) ... Mr Bruce spoke also to Mr Bull and Mr Gould both of whom denied making the remarks. Mr Bruce accepted their explanation without question. He spoke similarly to Mr Cadd and was satisfied with her explanation. Mr Bruce then spoke to all employees on duty in their work groups reminding them of the First Respondent's policy on harassment. ..."

There then, in the chronology set out by the Industrial Tribunal, follow various matters to do with Mr Chin's time-keeping, with warnings being given to Mr Chin.

On 28th July he made a complaint to the Industrial Tribunal of racial harassment. He also sent a questionnaire under s.65 of the Race Relations Act 1976.

This came to the attention of Mr Young, the Regional Manager, who had not previously known of Mr Chin's complaints. Mr Young was so concerned that he commissioned a report from Mr Hughes, Service Liaison Manager. The Industrial Tribunal found:

"4(17) ... Mr Young wrote a memorandum to Mr Hughes on 3 August asking him to prepare a report. He did so stating

"This incident leads me to believe that there may be an underlying problem where some staff including Managers are either indulging in or allowing this form of bullying to be tolerated."

Mr Young suggested to Mr Hughes who should be interviewed, albeit he allowed Mr Hughes the freedom to interview whomsoever he saw fit in addition. ..."

The reasons of the Industrial Tribunal then continue with various findings of fact as to the background of the matter. The tribunal then found

"2(21) The First Respondent has an Equal Opportunities policy. There is a specific policy on harassment. A copy of the policy is displayed on Notice Boards and there is also an individually mounted notice relating to harassment prominently displayed separately on a wall near the canteen, the notice being by the water fountain.

(22) The policy makes it the responsibility of the Managers, following alleged harassment to ensure that no further harassment has occurred. It further puts responsibility on Managers following the apparent resolution of a case of harassment to take steps after an appropriate period of time to speak to a complainant in order to ensure that the harassment has in fact ceased. There is no requirement for there to be formal complaint. There is a requirement for complaints to be investigated.

(23) Whilst Mr Cook took seriously the Applicant's complaints of harassment, he took the view that since the Applicant had made no further complaint or formal complaint to him, the problem had been resolved. He took no steps to ascertain that this was in fact the case nor did he follow the First Respondent's procedures and guidelines."

It was common ground in this appeal that a racial insult may amount to harassment of a complainant when it is made to or about somebody other than the complainant, but made in the complainant's presence or hearing in circumstances that cause him or her genuine detriment. That does, however, involve three factual ingredients - the making of the insult, the presence or hearing of the complainant, and detriment.

It was also common ground that an employer (but not another employee) may be vicariously liable for an act done by a person in the course of his employment, whether or not it was done with the employer's knowledge or approval (s.32(1) Race Relations Act 1976). In that regard, however, the employer has a defence if he proves that he took all reasonable steps to prevent the employee from doing that act (s.32(2) of the 1976 Act).

The Industrial Tribunal approached their findings in those regards in what seems to have been a sequential fashion.

"5. The Applicant's other complaint is of racial discrimination and harassment. We are satisfied on the facts which we have found that racial taunts and harassment of Mr Hollist were established. These taunts were made openly and in the Applicant's presence. This was not merely a case of someone overhearing a remark which was not intended to be heard. We are satisfied that the Applicant was thereby subjected to racial abuse and harassment and that such abuse and harassment constituted a detriment within the meaning of the Act.

6. The question which arises is whether the Respondents are liable? The remarks were made by the employees of the First Respondent. Were they made in the course of employment? ..."

The Industrial Tribunal then considered the relevant law and concluded:

"6. ... we are satisfied that the racial abuse and harassment was in the course of employment.

7. The Respondents can escape liability if they can show that they attempted to prevent the particular act, harassment in this case. The First Respondent has an Equal Opportunities Policy and a Policy on Harassment. That Policy is prominently displayed and the First Respondent took all reasonable practicable steps to bring it to its employees' attention and make employees aware of the serious consequences of such action on their part. When the Applicant complained, he was appraised of the appropriate steps to take. Prior to the complaint the First Respondent was unaware of any problems."

I there interpose in my recital of the reasons of the Industrial Tribunal because two observations need to be made at that stage of the Industrial Tribunal's decision. The first is that they appear to lump together both the Post Office and Mr Cook in the word "Respondents". In a subsequent letter the Industrial Tribunal confirmed that that was their intention. Mr Cook should not, of course, have fallen for consideration at all under s.32.

Secondly, the Industrial Tribunal there found that there had been harassment of Mr Chin but that up to 18th May 1995 the Post Office had taken reasonable steps and was protected from liability in accordance with s.32(2) defence. The reasons of the Industrial Tribunal continue:

"However, after the complaint was made on 18 May, the question which arises is whether the Respondents took all reasonable steps to protect the Applicant from further harassment. Burton and Rhule -v- De Vere Hotels [1996] IRLR 597 and also Go Kidz Go Limited -v- Bourdoune IDS Brief 578/December 1996. Mr Cook albeit that he asked Mr Bruce to investigate the Applicant's complaint took no further steps thereafter to satisfy himself that the harassment had ceased which was contrary to the First Respondent's own policy. The harassment did not cease as is evident from the Report commissioned by Mr Young in August. Mr Cook took the view that the problem was resolved because the Applicant did not raise a further complaint. No active steps were taken by the Respondents to protect the Applicant in circumstances where there was clearly an appreciable risk of the harassment reoccurring. That in our unanimous view renders the Respondents liable and we so find."

In short, for the period running from 18th May 1995 until the complaint to the Industrial Tribunal on 28th July 1995, the s.32(2) defence was not made out so the Post Office was liable. Again, the Industrial Tribunal coupled Mr Cook with the Post Office in that vicarious liability.

So far as Mr Cook is concerned, Miss Brown, for the respondent in this appeal, readily concedes that the Industrial Tribunal was wrong in law and that the appeal could not be resisted. We indicated that we allowed Mr Cook's appeal. We go further and emphasise that there was nothing whatever in the case that could conceivably warrant a finding of personal liability for racial discrimination in Mr Cook's case and he is fully exonerated.

The point raised on behalf of the Post Office is that the finding of the Industrial Tribunal in the sentence "the harassment did not cease as is evident from the Report commissioned by Mr Young in August" is wholly inadequate as a finding of fact. It does not contain findings of the facts material to establishing liability and is, in any event, unsupported by the Report.

The argument for the appellant is that it was necessary for the Industrial Tribunal to find to have occurred after 18th May (a) racial insult to Mr Hollist, (b) in the presence or hearing of Mr Chin the complainant, and (c) detriment to Mr Chin.

But the sole source of the Industrial Tribunal's finding, as the Industrial Tribunal expressed it, was the Report of Mr Hughes commissioned by Mr Young. That Report is expressed to be a generalisation. The Report contains these passages:

"Everybody apart from one had heard comments about this particular individual [Apparently Mr Chin] and in one case had made them. The comments made and heard were always about laziness and no one recalled any racist remarks.

...

In answer to my specific questions no one was aware of any harassment or racial abuse taking place at this centre.

...

A senior manager ... had on one occasion overheard a racist remark and left the individual in no doubt of the consequences of any repeat performance.

...

One interviewee stated that they had heard a member of staff making racist remarks to and about individuals on a regular basis. Also it was stated that no one in the company of this person had ever been heard to take them to task.

I interviewed one member of staff who was a recipient of practical jokes and some racist comments. This person is not based at Crow Lane but has worked on this site at regular intervals. [Apparently Mr Hollist.]

...

He honestly believes that practical jokes and comments have to be accepted as a part of life ...

There had been one incident at Crow Lane which had upset him enormously, racial comments had been made to him by one individual. The person concerned did feel it necessary to apologise but probably only due to the recipients reaction."

There was, accordingly, nothing in Mr Hughes' report to place any incident of racial insult after 18th May 1995, nor to place Mr Chin in the presence or hearing of it, nor to show any detriment. To extent that "harassment" referred to by the Industrial Tribunal as being evident from that report referred to harassment of Mr Hollist, the report did not place it after 18th May; and so far as it was meant to refer to Mr Chin (the harassment of whom was the question before the Industrial Tribunal), the report did not begin to evidence it.

That finding of the Industrial Tribunal in paragraph 7 of its extended reasons is to be coupled with its finding of fact at paragraph 2(12) "it became apparent from the subsequent Report commissioned by Mr Young which we deal with subsequently, that the racial taunts of Mr Hollist continued".

The appellant argues, therefore, that not only did the Industrial Tribunal loose the thread in paragraph 7 when it wrongly found Mr Cook to be vicariously liable; but it also lost the thread in looking to the question of harassment of Mr Hollist rather than the harassment (and the ingredients of it) of Mr Chin. In either case, the Industrial Tribunal found harassment established upon material which did not support such a finding.

This appeal presents us with a difficulty of discerning how far we should properly go in analysing and dissecting the extended reasons of the Industrial Tribunal. The reasons must be cogent reasons for the decision and contain sufficient findings of material fact to show that the reasons in the decision are in accordance with the facts.

In this case, the Industrial Tribunal made two statements of a general nature which underlie their findings in the decision. The first was that findings were made "having heard the evidence of witnesses and observed their demeanour whilst they were giving their evidence ...". The second was that "if there is some detail which we have omitted to mention, it does not mean that such detail has been overlooked".

The Industrial Tribunal had Mr Chin's Originating Application, Form IT1, they had his written statement of evidence which was taken as part of his evidence and incorporated into the Chairman's Notes of Evidence, and they heard the oral evidence of Mr Chin including cross-examination.

In his Originating Application Mr Chin said:

"Even after the 18th May I still overheard Kenny being called names and being tormented."

That was not addressed at all in the respondent's Notice of Appearance.

Mr Chin's written evidence contained these passages:

"Even though I complained the name calling did not stop. ...

Eileen returned to work and Kenny return to the main post office site. This was around July/August. I still recall, however, names being called. ..."

In oral evidence, and referring to 31st May, Mr Chin said:

"The name calling was still continuing at this time."

In answer to a question from the Chairman, Mr Chin said:

"The racial abuse effected my performance ... I heard the remarks. They were not nice names to be called. I was upset both for Mr Hollist and for myself ... Mr Hollist came in once or twice a month when Eileen was off. Then he was there for five or six weeks to cover sometime in the summer. He was taunted daily at any time during the day. Some of the taunts were in the open. Others were behind his back."

There was accordingly the evidence of Mr Chin upon which the Industrial Tribunal could have found, specifically, that the ingredients of harassment of Mr Chin continued after 18th May 1995. On the other hand, it is plain that the Industrial Tribunal did not accept the totality of Mr Chin's evidence - his victimisation claim failed - and the Industrial Tribunal did not make any specific findings about Mr Chin's evidence on the question of harassment. They neither specifically accepted it nor specifically rejected it.

However, the finding of continued harassment after 18th May and the Post Office's liability in respect of it, though purportedly based upon the evidence of Mr Hughes' report, was entirely in keeping with the evidence of Mr Chin, which was not, so far as we can tell, challenged.

We have concluded that we must review the extended reasons in the round, putting ourselves as best we can in the position of those who had heard the evidence and seen the witnesses in the context of the live issues and of the totality of the material. It is inconceivable to us that the Industrial Tribunal did not have Mr Chin's evidence in the forefront of its mind; and it is inconceivable that the Industrial Tribunal would have reached the conclusion that it did had it found Mr Chin's evidence on this aspect to be worthless. The concentration in the extended reasons upon Mr Hughes' report was infelicitous: it laid open an argument on appeal. But viewing the matter as a whole we are not persuaded that the Industrial Tribunal reached a conclusion that was not properly open to it on the material that it had, so that the appeal of the Post Office is dismissed.