United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR O A ADEEKO Solicitor
For the Respondent	MS C IVIMY (of Counsel) Instructed by Ms H Vautier Solicitor London Borough of Greenwich 29-37 Wellington Street Woolwich London SE18 6PW


 


MR JUSTICE LINDSAY (PRESIDENT)

1. We have before us today the full hearing of the Appeal of Mr P O Fasuyi in the matter Fasuyi v The London Borough of Greenwich. Today Mr Fasuyi has appeared by Mr Adeeko and the London Borough of Greenwich by Ms Ivimy.
2. On 2 November 1992 Mr Fasuyi, a black of West African racial origin, began to work for Greenwich. In January 1997 he launched a first set of proceedings complaining of racial discrimination and victimisation; he had also raised a number of equal opportunity and other grievance complaints.
3. In June and July 1997 he lost those first set of Tribunal proceedings. Over time, he had applied for a number of promotions to a higher grade but had not been successful.
4. In November 1997 Greenwich advertised for a temporary Tenancy Services Officer. The abbreviation "TSO" is generally used for this particular job. Mr Fasuyi applied for the job. He passed the written test. He went to interview and he had 12 competitors. He was not successful. He suspected that victimisation or racial discrimination had played a part in his failing to get the job and on 12 March 1998 he launched a fresh IT1 claiming victimisation and discrimination. His complaint was not only as to the failure to get the TSO job that had begun to be considered in November 1997 but he sought also to range over some earlier complaints as well.
5. On 1 May 1998 Greenwich responded with an IT3 and that led in time to a 5 day hearing, on the 12, 13, 14, 15 and 16 April 1999 at the Tribunal. The Tribunal was at London (South) under the chairmanship of Miss M E Stacey and their decision was sent to the parties on 12 May It was a long decision because there were a number of points that had to be decided. There is no appeal against this "Liability" decision, only against the later "Remedies" decision, but it is necessary first to describe the earlier of the 2 decisions. It read as follows:

"The unanimous decision of the Tribunal is that:

(i) the Tribunal does not have jurisdiction to consider the Applicant's complaint of race discrimination in connection with his non-selection for interview for the vacant post of Tenancy Services Officer on 27 February 1997 and it is not just and equitable to extend the period of time in which to validate the complaint;

(ii) the Tribunal does not have jurisdiction to consider the Applicant's complaint of race discrimination in the failure of the Respondent to afford the Applicant an appeal against the decision not to select him for interview for the vacant post of Tenancy Services Officer on 27 February 1997 and it is not just and equitable for time to be extended in order to validate the complaint;

(iii) the Tribunal does not have jurisdiction to consider the Applicant's complaint of victimisation under section 2 of the Race Relations Act 1976 in connection with his non-selection for the post of Tenancy Services Officer on 27 February 1997 and the Tribunal does not consider it just and equitable to extend the period of time to enable consideration of the claim;

(iv) the Applicant was not discriminated against on grounds of sex when he was not appointed to one of the vacant posts of Tenancy Services Officer in January 1998;

(v) the Applicant was not discriminated against on grounds of race when the Respondent failed to appoint him to one of the vacant posts of Tenancy Services 1998;

But, now we come on to the most material part.

(vi) the Applicant was discriminated against by way of victimisation within the meaning of section 2 of the Race Relations Act 1976 when he was not appointed to one of the vacant posts of Tenancy Services Officer in January 1998; and

(vii) the case is listed for a remedy hearing on the finding of victimisation at 2.00 p m on 25 May 1999 unless the parties are able to reach an agreement in the meantime, in which case they will inform the Tribunal as soon as possible."

6. A Remedies Hearing was to be fixed unless the parties reached an agreement, which they failed to do. So the only matter that needed to go forward to a Remedies Hearing was as to racial discrimination in relation to victimisation, in terms related to Mr Fasuyi's failure to be appointed to a vacant post as TSO in January 1998. The Tribunal held that Mr Fasuyi had been more harshly judged or more stringently marked than had been his competitors for that job.
7. The Tribunal looked at Greenwich therefore for an explanation of that. They held that the explanation in relation of Mr Fasuyi's case was not satisfactory. They held that the interviewing panel had probably known of his earlier complaints, which were "protected acts", and that the reasons given for the relatively low marks ascribed to Mr Fasuyi at the interview were unimpressive. There was no direct racial discrimination, they said, but the Tribunal felt it could draw an inference of victimisation.
8. "We find", they said, "that they" [Greenwich employer] "had victimised the Applicant and we further consider it appropriate to drawn an inference of a conscious motivation to victimise the Applicant to prevent him from being successful in his application for the post of TSO in January 1998."
9. There is, as we have said, no appeal against any part of that decision, which as I say, was sent to the parties on 12 May 1999. The Remedies Hearing took place on 25 May 1999 and on 23 June the decision on Remedies was sent to the parties. It says:

"The unanimous decision of the Tribunal is that the Respondent is ordered to pay to the Complainant compensation of £10,221.34."

10. The Remedies Decision shows that the Tribunal took the view that, but for the victimisation, Mr Fasuyi would have been appointed a TSO by 1 January 1998. In turning to quantifying loss, they first consider the period from 1 January 1998 to 31 May 1999. The difference between Mr Fasuyi's existing salary (because he then worked and still works for Greenwich) and the salary that he would have got had he been appointed TSO in January 1998 was awarded to him in total; there was no discount. The Tribunal continued in their paragraph 4 as follows:

"However, the financial losses cease at the end of May 1999 as the Respondent offered the Applicant the post of TSO in one of four offices, which he refused (page 27, R1). The Applicant's refusal to accept the TSO post was unreasonable in that he could have been appointed to one of the offices as TSO had his original job application succeeded, which was the subject matter of these Tribunal proceedings. He did not take the post because he has lost confidence."

11. As compensation for injury to feelings the Tribunal awarded £7,000. In their paragraph 9 they said this:

"The Applicant did not seek a recommendation pursuant to section 56(1) (c) None therefore is made."

12. We need to refer to section 56(1)(c) because a ground of appeal relates to it. 56(1) reads:

"Where an Employment Tribunal finds that a complaint presented to it under section 54 is well founded the Tribunal shall make such of the following as it considers just and equitable

(a) An Order declaring that the rights of the Complainant and the Respondent in relation to the act to which the complaint relates;

(b) An Order requiring the Respondent to pay to the Complainant compensation of an amount corresponding to any damages he could have been ordered by a county court or by a sheriff court to pay to the Complainant if the complaint had fallen to be dealt with under section 57;

(c) A recommendation that the Respondent take within a specified period action appearing to the Tribunal to be practicable for the purpose of obviating or reducing the adverse effect on the Complainant of any act of discrimination to which the complaint relates.

13. On 1 August 1999 a succinct Notice of Appeal was lodged by Mr Fasuyi. It raised 3 grounds, which we shall need to return to. On 28 August those 3 grounds were amplified in particulars which Mr Fasuyi served.
14. On 24 November 1999 at the Preliminary Hearing all 3 grounds were permitted to go forward to a full hearing and Chairman's notes of evidence were requested and they have been received, together with a letter from the Chairman to which we shall later refer. We have had Skeleton Arguments from both Mr Fasuyi and on behalf of Greenwich and the 3 grounds that Mr Fasuyi and, on his behalf, Mr Adeeko pursue are as follows. The first one ought to have the heading 'Interest'. Mr Fasuyi and Mr Adeeko refer us to the Employment Tribunal (Interest On Awards In Discrimination Cases) Regulations 1996 SI 1996 No 2803, Paragraph 2 and Paragraph 7.

Paragraph 2 of that provides:

2-(1) Where at any time after the commencement of these Regulations, an employment tribunal makes an award under the relevant legislation-

(a) it may, subject to the following provisions of these Regulations, include interest on the sums awarded; and

(b) it shall consider whether to do so, without the need for any application by a party in the proceedings.

That is 2(1), and para 7 says:

7.-(1) The tribunal's written statement of reasons for its decision shall contain a statement of the total amount of any interest awarded under regulation 2 and, unless this amount has been agreed between the parties, either a table showing how it has been calculated or a description of the manner in which it has been calculated.

(2) The tribunal's written statement of reasons shall include reasons for any decision not to award interest under regulation 2."

15. Accordingly, even if neither side applies for or addresses a Tribunal in relation to interest, there is a duty upon the Tribunal to consider interest. It is mandatory that it shall consider it. In the case at hand the Employment Tribunal's Extended Reasons show no consideration being given to the subject of interest at all. There was no award of interest and no expressed refusal of it. There was, accordingly, in our view, an error of law in this part of the case. Indeed, the Chairman of the Employment Tribunal has, as one would expect, made a very candid comment on this point and it transpires it was just a simple oversight.
16. Ms Ivimy's Skeleton Argument says:

"1. In light of the letter from the Chairman of the Tribunal to the EAT dated 7^th March 2000 stating that the Tribunal by oversight did not include interest in its award to the Applicant, the Respondent accepts that the Tribunal erred in law by failing to award interest.

2. The Respondent is willing to pay such sum by way of interest as the EAT should direct. For the assistance of the EAT the Respondent attaches to this skeleton argument its calculations of the sum due.

And then there was a calculation that comes in all to £445.32.

17. Mr Fasuyi and Mr Adeeko have only seen the calculation of interest very recently and have not had time to work out whether it should be agreed with or not. In the circumstances, and recognising there is an error of law in the Tribunal's decision on this point, we allow the Appeal so far as concerns the argument as to interest and remit the topic of Interest to the Employment Tribunal. We do, however, greatly hope that when a little time has been afforded to the parties for them to talk together on the computation that they will be able to agree terms and that the remission will therefore become unnecessary. Otherwise far more would be spent in costs, we suspect, than would be truly in issue. However, as a matter of formality, we allow the Appeal on the Interest subject and remit it in order that the Employment Tribunal, should the parties not have agreed it, can make an award Of Interest.
18. So much for that first heading, the second heading is Section 56(1(c) The Race Relation Act 1976. We have already read the section but we do need to remind ourselves of the single sentence in the Tribunal's decision on the point which said:

"The Applicant did not seek a recommendation pursuant to section 56(1)(c). None therefore is made."

It is plain that the Tribunal has section 56 sub-section 1 in mind. Not only do they award compensation which they could only do under section 56 sub-section 1, they referred in terms, as we have seen, to section 56(1)(c).

19. Two vices, as we have understood the argument, are alleged by the Appellant in relation to this part of the case. One vice emerges from the expression "None therefore is made". The other consists of an assertion on behalf of Mr Fasuyi that he had, in fact, applied to the Employment Tribunal for a recommendation under section 56(1)(c) notwithstanding that the Tribunal took the view that he had not sought a recommendation under section 56(1)(c). We

take that latter point first. We have the Chairman's notes which include Notes of Submissions. The notes contain nothing that could fairly be taken to be an application or a request by Mr Fasuyi for a recommendation to be made under section 56(1)(c). Nor do they show any record of anything from the Greenwich side which could be taken to be a response to such an application or request.

20. We also have copies of written submissions lodged by Mr Fasuyi at the Remedies Hearing. The written submissions plainly show Mr Fasuyi arguing for monetary compensation within 56(1)(b). The concluding words of those written submissions handed in by Mr Fasuyi to the Employment Tribunal say that "Ultimately the award and its size are the domain of the Tribunal. I am not worthy of referring the Tribunal to any authority, but to just annotate these. I pray that the Tribunal should exercise their discretion not only to provide full compensation, but also to impose a real deterrent on the discriminator/victimiser."
21. Those words - a real deterrent on the discriminator/victimiser - read out of context, may be thought (although perhaps over generously in Mr  Fasuyi's favour) to be an invocation of section 56(1)(c). However, in context, in a paragraph that begins with a reference to the size of the award, it could fairly be taken by the Tribunal to refer only to an award of such a sum as would be a deterrent, in fact an impermissible submission as the award can in general only be compensatory rather that penal or deterrent above being compensatory."
22. Moreover, the Chairman's notes show the Chairman asking Mr Fasuyi precisely what he was seeking and he said: "I am seeking future losses. Losses to date to be calculated together with interest, injury to my feelings which have been hurt over a period of 18 months, aggravation - the failure of the Respondent to deal with my complaint before coming to the Tribunal and their continued failure to apologise to me."
23. We cannot, in all the circumstances, accept a contention (if it is made, which is not entirely clear) that Mr Fasuyi had, in effect, made a request or application for a recommendation to be made under section 56(1)(c). The sentence by the Tribunal:

"The Applicant did not seek a recommendation pursuant to section 56(1)(c) "

was, to that extent, justified. That Mr Fasuyi applied for such an Order from the Employment Tribunal as it saw fit is an allegation we could accept but not that, within that broad description of an application, he sought any recommendation pursuant to section 56(1)(c). The remaining question under this heading is this: "Is it an error of law for a Tribunal which can be seen to have had section 56(1)(c) in mind not to make a recommendation under that sub-section because none was sought.

24. In our judgment the answer to that can only be that it depends on the circumstances of the case. It is of the nature of a recommendation, if it is to be within the sub-section, that certain attributes have to be required of it. The action to be recommended must appear to the Employment Tribunal to be practicable for the purpose of obviating or reducing the adverse effect upon the complainant of the upheld act of discrimination. Thus, whilst a recommendation for a purpose which is generally ameliorative may be justified if its effects are such that it will obviate or reduce the adverse effect on the complainant as a person within that generality, it is the practicability relating to the effect on the complainant that the Tribunal must focus upon.
25. Secondly, the adverse effect on the complainant the amelioration of which is to be the the practicable purpose of the recommendation is not some nebulous or general adversity but its the adverse effect on the complainant of the very act or acts of discrimination which shall have been complained of and which shall have been held by the Tribunal to have been well-founded.
26. Thirdly, the recommended action must be such that the Tribunal could be expected to be able to specify a period within which it has to be taken.
27. Fourthly, as the non-compliance with it may have substantial adverse effects on the Respondent, one can expect the recommendation to be capable of being specified with reasonable clarity so that the Respondent can clearly see what is and is not required of it in order that it should comply with the recommendation. Lord Justice Fox in Irvine v Prestcold Ltd [1981] IRLR 281 and 283 in the Court of Appeal described at some length how the recommendation in that particular case had been unsatisfactorily expressed.
28. Fifthly, careful consideration needs to be given to whether an apparently obvious step to be recommended would not itself be potentially discriminatory against others. Thus a recommendation that a complainant who has been denied promotion on the ground of race should be given the next promotional vacancy may be improper as itself discriminatory against some other person - see British Gas Limited v Sharma [1991] ICR 19 at p41 EAT and see also North Thames RHA v Noone [1988] ICR 813 for other difficulties that the makers of a recommendation may encounter.
29. Moreover, although in some cases this or that practical step will be likely to appear to the Tribunal unprompted by anything beyond their own experience and knowledge - for example, that Mr X should receive immediate training as to equal opportunity requirements or Mr Y as to how best to avoid racial discrimination - it will often require detailed information as to the surrounding circumstances of the workplace and the job and the practices in the workplace to be given to the Tribunal and that it would be reasonable to expect that some practicable ameliorating steps should have come unbidden to the Tribunal's mind. Still less, in such cases, would it be reasonable that the Tribunal should be expected to specify a recommendation without receiving argument from and the assistance of the parties.
30. We are thus unable to say that it is invariably an error of law for a Tribunal which has the sub-section in mind not to make a recommendation because none was sought. It depends, as we have said, on the circumstances of the case. As to those circumstances here, there had been no finding of direct racial discrimination against Greenwich. It is worth reminding ourselves of what had happened at the earlier hearing under the heading of Direct Race Discrimination. In their paragraph 67 the liabilities hearing had said this:

"We do not draw an inference of direct race discrimination from the unsatisfactory explanations of the Respondent. We were impressed with the statistics of the racial make-up of the Respondent (page 333 and 364 to 6). The Respondent demonstrated their commitment to equal opportunities through their policies, ethnic breakdown of the work force and through accurate and efficient record keeping enabling them to produce, at speed , detailed breakdown as requested by the Tribunal during the hearing.

Neither do we draw the inference of sex discrimination from the Respondent's explanation of the difference in treatment at the Applicant's interview. The gender breakdown amongst the Respondent's workforce and the Housing Department is good. The racial and gender breakdown of the short-list panel for interview for these particular posts does not demonstrate anything from which an inference can be drawn because of the wider pattern in the work force and neither did any of the oral or written evidence which we have heard from the witnesses or had produced in the bundle before us, enable us to do so."

31. So the Tribunal was not dealing with a case where the practices of the employer were so hopeless that quite simple practicable steps could be expected to have come unbidden to the Tribunal's mind. Moreover, the adverse effect on the complainant found by the Tribunal to exist was that he had been denied promotion (and hence money) and had suffered injury to feelings, and both of those particular adverse effects were intended by the Tribunal to be met by a monetary award of compensation. It might be thought that to have required Greenwich to apologise for the victimisation would have been to reduce the adverse effect suffered by Mr Fasuyi, but, against that, an apology that is made only upon an Order to apologise might be reasonably be thought to lack the contrition which, in a spontaneous apology, might have caused an amelioration in Mr Fasuyi's position.
32. That apart, it is not clear to us, even now, what particular action apart from the monetary award, could have been expected to have appeared to the Tribunal to be practicable for the purpose of either of obviating or reducing the adverse effect Mr Fasuyi had suffered by reason of the victimisation that was held to have occurred, given the danger which we have mentioned that simply to appoint him or to bind themselves to appoint him to the next available promotional vacancy could itself be a discriminatory and was, on the authorities, proper to be avoided.
33. There is no hint in the Tribunal's reasons that they had some practicable recommendation in mind but did not make it simply because it was not asked for. Tribunals are very conscious of their duties under Employment Tribunal Rule 9(1) and the Chairman's notes show the Tribunal drawing out Mr Fasuyi at several points in the case. If they had had in mind some possible practicable recommendation we do not doubt that they would have mentioned it to, and would have tested it with, the parties. That was not done and, in our judgment, that can reasonably be taken to indicate that whilst they had section 56(1)(c) in mind they had not for themselves spotted any practicable step to recommend for the limited purpose that the sub-section is directed to.
34. We cannot describe that omission as an error of law in the particular surrounding circumstances of this case and bearing in mind that section 56(1)(c) was plainly in the Employment Tribunal's mind, as they expressly refer to it, we hold there to have been no error of law in their having made no recommendation within the sub-section by reason of its not having been sought. Thus on this second point Mr Fasuyi's Appeal fails.
35. The third heading should be Perversity. The perversity which is alleged to be visible in the Tribunal's decision lies in the fact that they held that the financial loss by reason of Mr Fasuyi's not being appointed to the TSO job should stop as at the end of May 1999. We have already read the paragraph 4 in which the Tribunal dealt with this point. The Chairman's notes show that the Tribunal had an open written offer before them made by Greenwich to Mr Fasuyi and we have been handed it this morning. We had not seen it previously. Greenwich's representative at the Tribunal, in his final submission, said this:

"The Respondents have made an 'open offer' to give the Applicant a permanent TSO post as per their letter to the Applicant. These include posts which the Applicant could and would have been appointed to, had he been successful in the application which was the subject matter of the substantive proceedings. His refusal to accept the offers now made represented a break in the chain of causation and there should therefore be no award for future loss."

36. Mr Fasuyi's subsequent final submissions seem to have had no answer to that point. He plainly rejected the offer there and then. He described it as threatening, antagonistic and provocative. He said in evidence that he was going to remain in his present position. There is no suggestion in the evidence that deals with the position of how far, if at all, the offer was regarded as indivisible and was refused or declined because of some unacceptable part within it. That needs a little further explanation. The letter which, as I say, we were handed this morning, first of all says:

"In the light of the Employment Tribunal's finding that you were victimised contrary to section 2 of the Race Relations Act 1976, the Directorate of Housing is willing to offer you a permanent post of Tenancy Services Officer at one of the following Offices; Coldharbour, Plumstead (where there are two posts available), Long Walk or Glyndon. The Council is aware that the Tribunal is unable to make an order to this effect and views this offer as the best way to progress your career in Housing.

In addition, the Council is prepared to pay you the sum of £5000 to compensate for other losses you have suffered in line with the Tribunal's decision. This sum covers the injury to your feelings as well as a sum to represent the difference in pay between your earnings as a Customer Services Officer and the earnings of a newly employed Tenancy Services Officer from January 1998 to the end of May 1999. The Council will also pay you at the appropriate rate of pay for a Tenancy Services Officer until you take up the new employment.

This offer is made openly and can be referred to at the Tribunal by both parties but unfortunately will have to be withdrawn at 1.45pm on 25^th May. For your information, I will be at the Tribunal from about 1.30pm.

Please contact me on extension 6096 or 317 5389 to indicate your acceptance of this offer and I will draft the relevant agreement. The agreement will be in full and final settlement of this claim.

It was dated 24 May for a hearing on 25 May listed to start at 2 o'clock.

37. One can see grounds for disquiet, at least, on Mr Fasuyi's part at the tightness of the timetable. But, so far as one can tell from Mr Fasuyi's written submissions handed into the Tribunal and so far as one can tell from the Chairman's notes of evidence on the day, there is nothing to suggest that Mr Fasuyi's refusal of the offer of the job was solely on the ground that he thought that the sum offered, £5000, to compensate "for other losses" was too low. It is likely that there were negotiations to which, of course, the Tribunal would not have been party and of which it was unlikely to have received evidence. But the Tribunal, limiting itself to the matter that it did have, in evidence in front of it, took the view that it has been unreasonable on Mr Fasuyi's part not to accept the TSO posts or one of them that were offered to him as we have seen from the quotation in paragraph 4. Mr Fasuyi's statement read to the Tribunal complained of the lateness of the offer but so far as one can tell he did not seek time to consider it nor did he argue that if was to have the effect of stopping time running in his favour that the time should be postponed by, say, a month or so in order that he could further consider the offer."
38. The Tribunal say in terms that Mr Fasuyi did not take the post of TSO "Because he has lost confidence" but it is not held that that loss of confidence was a consequence of the victimisation successfully complained of and the loss of confidence manifestly was not of such a degree as seriously to damage the degree of trust and confidence he was entitled to have in his employer as such because he was content that the relationship of employer and employee should continue and he has remained in the Council's employ until the present day.
39. The Tribunal held that his refusal, as we mentioned, to accept any of the 4  posts offered was unreasonable and that rather suggests that, in the way in which they understood the case on the day from the evidence put in front of them, that the open offer was divisible in the sense that it would have been possible to Mr Fasuyi to accept the offer of the TSO job without necessarily binding himself to take only £5,000 in monetory compensation. We say that because, as we mentioned earlier, the Tribunal itself ordered £7,000 as monetary compensation and one would expect that if they had thought that the offer was indivisible and would therefore have bound Mr Fasuyi never to achieve more than £5,000 they would not have thought the declining of the offer to have been unreasonable.
40. The Chairman's notes in particular show that the job that Mr Fasuyi was offered in May 1999 included the very posts which he had earlier applied for and which he had complained that he had failed to obtain. The finding to that effect by the Employment Tribunal has not been challenged.
41. Mr Fasuyi, in his Notice of Appeal's particulars says:

"The respondent's offer was a joint and cumulative offer of (i) TSO job and (ii) £5,000.00 as full and final compensation. The respondent made it clear that the rejection of one element was a rejection of the whole offer.

The appellant approached and informed the respondent's barrister that the £5,000.00 compensation offer was in fact less than the amount that the appellant was owed by the respondent.

The respondent's barrister thereafter withdrew the respondent's offer.

There were no vacancies at the material time in the specified offices where the responden t offered the appellant the position of TSO.

But that, as it seems to us, is new material that was not given in evidence, so far as we can tell from the Chairman's notes. Indeed, in his Skeleton Argument Mr Fasuyi says:

"The only evidence before the Tribunal was that the appellant failed to agree with the respondent on the respondent's offer."

42. One cannot criticise an Employment Tribunal as having been perverse when the accusation is that it failed to take into account factors that, on the face of things, were not in front of it. The Chairman's notes and the written submissions of Mr Fasuyi do not show evidence or submissions as having gone as far as the allegations in the Skeleton Argument and Notice of Appeal now suggest.
43. We have to bear in mind that the test of perversity is a very stern one. If we ask ourselves whether a reasonable Employment Tribunal properly directing itself on the law and looking to the material actually laid before it could have arrived at the conclusion that it did in its paragraph 4, namely, firstly, that it was unreasonable for Mr Fasuyi to decline the offer and, secondly, that that broke chain of causation - we cannot answer that such a Tribunal could not properly have come to that conclusion.
44. The perversity charge in our view thus fails. Accordingly, save for the Interest heading, the Appeal is dismissed and, as to the Interest heading, as we mentioned earlier, we remit that but in the hope that the parties can agree terms to make the remission unnecessary.