United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR C SHELDON (of Counsel) Instructed By: Ms K Tickner Policy & Administration Department Legal Services Division London Borough of Hammersmith & Fulham Town Hall King Street London W6 9LU


 


JUDGE PETER CLARK: The real point in this Appeal may be shortly stated. At all relevant times the applicant below, Ms Ezeonyim, who is of Nigerian racial origin, was employed by the Council as a care assistant. Her immediate line manager was Mr Hutchings. The Director of Social Services was Mr Alltimes.

1. A colleague of the applicant, Mr Aneadobe, also Nigerian, brought a complaint of race discrimination against the Council. During the hearing of his complaint the Applicant gave evidence on his behalf. In the course of these proceedings, she became aware of a memorandum written by Mr Hutchings about her.
2. She took exception to the contents of that memorandum which was written to the Council's Occupational Health Officer and dated 7^th February 1997. She made a formal complaint under the Council's written Harassment procedure of harassment and victimisation against her on grounds of her race by Mr Hutchings in connection with that memorandum.
3. The Harassment procedure, so far as is material, is set out at paragraph 14 of Employment Tribunal's reasons, as follows:

"Where the complaint and the alleged harasser work in close contact the employer director can in consultation with IR and if satisfied that the complaint is of nature it may be difficult for both parties to continue to work together as usual to consider:

transferring the alleged harasser for the period of the investigation;

suspended any of the parties from duty on full pay during the period of the investigation as a means of

(a) relieving stress and pressure on both parties,

(b) preventing the risk and physical assault of victimisation or intimidation and

(c) ensuring that both parties are treated fairly.

Reorganising or re-allocating work so as to avoid the need for contact between the complainant and the alleged harasser".

4. The Applicant asked Mr Alltimes to transfer Mr Hutchings during the investigation of her complaint, the first option under the procedure. Mr Alltimes declined to do so; instead he arranged for the Applicant to be managed by the Deputy Manager in her department, the third option in the procedure.
5. A black manager, Doreen Redwood, was appointed to investigate the Applicant's complaint. In the event, she concluded the complaint was not well founded. The Applicant's complaint at the Tribunal was the subject of an interlocutory hearing at which the issues were identified in this way.
6. First, whether the Council and Mr Hutchings unlawfully discriminated against her by victimising her contrary to section 2 of the 1976 Act; the protected act relied on being her giving evidence in the Tribunal Complaint brought by Mr Aneodobe and by her invoking the harassment procedure in relation to Mr Hutchings, and secondly, whether the three respondents, that is the Council, Mr Alltimes and Mr Hutchings discriminated against her by harassing her and by failing to operate the harassment procedures thereby unlawfully discriminating against her under sections 1(1)(a) and 4(2)(c) of the Act.
7. The Tribunal dismissed her complaints of harassment but upheld the second part of her complaint identified above, that is a failure on the part the Council and Mr Alltimes to operate the harassment procedure.
8. The principal point made by Mr Sheldon in this Appeal against that finding is that the Tribunal has misconstrued the harassment procedure with the result that the crucial finding by the Tribunal that Mr Alltimes failed to operate the protection of the harassment procedure on which their conclusions adverse to the Appellants was based, was unsupported by evidence. Put shortly the steps set out in the procedure are discretionary, not individually mandatory.
9. It seems to us that first ground of appeal identifies an arguable misdirection in law on the part of the employment tribunal and consequently it will be permitted to proceed to a full hearing.
10. Mr Sheldon takes two further points in his grounds of appeal. The first is that the Tribunal reached a perverse finding in concluding that the Applicant had suffered a detriment. It seems to us that if he succeeds on his first ground then the result will be that this case must be remitted for a re-hearing. In those circumstances, the detriment point becomes academic. If he fails in his first ground of Appeal, we are not satisfied that any arguable point of law arises on the detriment ground.
11. Mr Sheldon submits that the Tribunal having found that Mr Hutchings did not harass the Applicant after she had commenced the grievance procedure, means that she cannot have suffered a detriment even if the Tribunal was entitled to find that Mr Alltimes did not operate the harassment procedure. We reject that submission. It seems to us that if the Appellants fails on the first point, it follows that the Tribunal was entitled to conclude that there was a failure by Mr Alltimes to operate the harassment procedure by transferring Mr Hutchings and that of itself is capable of amounting to a detriment for the purpose of the Act.
12. His final point is a challenge to the Tribunal's finding in paragraph 61 of their reasons that Mr Alltimes did not consider the Applicant's complaint of racial harassment with the seriousness that it deserved. We understand Mr Alltimes concern at that finding so far as his position is concerned, but we have to consider whether or not this third ground of appeal raises an arguable point of law.
13. Mr Sheldon has sought to persuade us that that finding is inconsistent with the Tribunal's earlier findings as to the way in which the harassment complaint was investigated by Mr Alltimes on behalf of the Council. We are not satisfied that the finding is one which can properly and arguably be characterised as perverse and in these circumstances, we reject the third ground of appeal.
14. It follows in the circumstances that the appeal will be allowed to proceed to a full hearing on paragraph 6.1 on the Notice of Appeal only. Paragraph 6.2 and 6.3 are dismissed.
15. For the purpose of the full hearing we give the following directions: the Appeal will be listed for half a day, category C. Having heard Mr Sheldon on the question of Chairman's notes of evidence, we do not regard it as necessary to require notes of the oral evidence given. Although ground 1 alleges that the Tribunal made a material finding of fact which was unsupported by the evidence, the focus at the full Appeal hearing will be on the written procedure. Notes of the oral evidence given by the witnesses are not material to that investigation. Accordingly, there will be no order for Chairman's notes.
16. Finally, the parties will exchange skeleton arguments 14 days before the date fixed for the full appeal hearing. Copies of these skeleton arguments to be lodged with this tribunal at the same time.