United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S BARBER Regional Officer Greater London UNISON 1st Floor Congress House Great Russell Street London WC1B 3LS
For the Respondent	MR S DEVONSHIRE (of Counsel) Brent Legal Services Town Hall Annexe Forty Lane Wembley HA9 9HD


 


MR COMMISSIONER HOWELL QC

1. This appeal, before us today for full hearing of the remaining issue on which such a hearing has been directed, is brought by Miss Sonia Beverly Edwards against the decision of the London (North) Employment Tribunal, comprised in extended reasons at pages 6 – 12 of the appeal file, sent to the parties on 19 October 1998, following a hearing spread over 3 days on 22 and 23 July and 6 October 1998.
2. The complaints originally made to the Employment Tribunal by Ms Edwards were that she had suffered race discrimination, sex discrimination and victimisation at the hands of the London Borough of Brent who were her employers, she having been a team leader in the Social Services Department, working in particular at the Dollis Hill Day Centre under the direction of Ms Joy Bussey, the respondents' business director whose conduct featured in the evidence.
3. The Employment Tribunal in their decision of 19 October 1998 rejected the Applicant's complaints and held that she had not been sexually or racially discriminated against and had not been victimised. That decision was given in a reserved judgment, after consideration of lengthy evidence over 3 days of hearing.
4. The one single issue which comes before us on this appeal is whether in that decision the Employment Tribunal have or have not failed to address a material issue and record reasons and findings on that issue. It is alleged by Mr Barber, who appears on the Appellant's behalf before us as he did before the Tribunal, that there was before the Employment Tribunal a material issue on whether the Appellant had suffered less favourable treatment by comparison with a Mr White, who was also a former employee of the Council, although not in the same unit at the same time as the Appellant herself had been.
5. We have been shown a press cutting dated 9 March 1998 which was also before the Employment Tribunal, from which it appears that Mr White's case was one of some notoriety. The suggestion in the newspaper report is that he had siphoned off large sums of public money from the London Borough of Brent, in order to finance a group run by friends and associates of his. It appears, from the press report, and this was confirmed in evidence given to the Employment Tribunal, that there had been an investigation into Mr White's activities, but that in the end no disciplinary proceedings had been taken against him; for reasons about which no evidence was given to the Employment Tribunal, in circumstances which we shall outline.
6. When the matter came before the EAT for the usual preliminary hearing the issues on the appeal were gone into and in a division of this court presided over by His Honour Judge Clark on 17 February 1999, directions were given for the production of the Chairman's Notes of Evidence and comments by the Chairman to shed light on how the matter of Mr White's activities, and whether they provided a comparison that ought to have been taken into account by the Employment Tribunal, had been dealt with at the hearing.
7. It is clear and common ground that in the Originating Application itself, and in the particulars subsequently quite rightly supplied identifying the comparators whose circumstances were being relied on by and on behalf of the Applicant, no reference to Mr White is made at all; and Mr Barber makes no bones that that is the case. Thus, as recorded by His Honour Judge Clark in the judgment given on 19 February 1999, (page 35 of our appeal file)

"We can see no reference to this comparison in the pleadings, both the Originating Application and Further and Better Particulars, however Mr Barber tells us that the point arose as a result of discovery and we do see that at paragraph 1 of the Tribunal's Extended Reasons they record that it was maintained that white and/or male employees were treated more favourably than was the Appellant."

8. When the Chairman's Notes of Evidence had been produced the matter again came before another division of this court presided over by His Honour Judge Clark for directions on the adjourned preliminary hearing. Again, the question of whether Mr White had been expressly introduced into the proceedings as a comparator, in the way he should have been if the comparison was to be relied on, was raised and His Honour Judge Clark's judgment at page 5(e) of the Appeal File on that date records

"The complaint that the Tribunal failed to make necessary findings of fact raises different considerations. In the Appellant's first Originating Application presented on 2 October 1997 alleging direct race and sex discrimination it was alleged that whereas the Appellant was suspended for nine months on charges of gross misconduct, she believed that others facing similar complaints were not suspended. One of those was said to be a white male and Mr Barber tells us that although the name was not given, that was a reference to a Mr Terry White. Accordingly, it was alleged that the Appellant was less favourably treated on grounds of her race and/or sex than was that comparator.

Before the Employment Tribunal, we see from the Chairman's Notes, there was evidence given particularly by Mr Scott that Mr Terry White was accused of theft of Council funds, but no disciplinary action was taken against him.

On the face of their reasons the Employment Tribunal do not appear to have dealt with the alleged comparison between the Appellant and Mr White and further, with a Mr Platt at any stage."

9. On that footing this Tribunal directed a full hearing of Mrs Edwards' appeal limited to that single issue, more particularly defined in paragraph (i) – (iii) under the heading "submission" in the Notice of Appeal on page 4 of the appeal file. Though reference had been made at that stage of the proceedings to an alleged error on the part of the Tribunal to make findings and deal with another possible comparison with a Mr Platt, Mr Barber opened his case before us this morning by conceding that he was not pursuing the appeal as regards any comparison with Mr Platt. We were only concerned with the alleged failure of law on the part of the Tribunal to deal with Mr White as a proper comparator.
10. We have already made reference to the pleadings in the form of the Originating Application and Further and Better Particulars and copies of those have been helpfully provided to us. The ones to which it is necessary to refer for this purpose are at pages 1 – 3 of the supplemental bundle in a response providing Further and Better Particulars, sent by Mr Barber on behalf of the Appellant on 15 December 1997. The comparators being relied on for the race discrimination complaint are there specified as "Simon Potter and A. N Other (?) (alleged misuse of telephone)" and "Annette Cummins, alleged financial mismanagement". It is common ground that "A N Other" referred to there was not in fact Mr White. Although Mr Barber at some stage appears to have been under the impression that he was one of the people being referred to, and so informed this Tribunal on 14 September 1999, that is now accepted to have been incorrect.
11. The group of potential comparators alleged to be material, for the purpose of determining whether the Applicant had received less favourable treatment than other employees had or would have had, can be discerned from the terms of a questionnaire submitted on behalf of the Appellant to the Respondents on 17 December 1997 at page 7 of the supplemental bundle provided to us by the Respondents. The material question was in the following terms

"Please provide full details of all staff within Ms Bussey's unit who were either subject to a disciplinary investigation, disciplinary action or the disciplinary process in any way between January 1996 and July 1997." Then there is a list of more specific details required of any such cases.

12. The response to that came in a letter dated 19 February 1998 on page 11 of the Respondents supplemental bundle. It identified the three people within that group against whom disciplinary action had been taken between January 1996 and July 1997 as a Simon Potter, a Jason Chan and Annette Cummings, with the addition of one other employee of African origin, to whom it is not necessary to make any further reference to the purposes of this appeal.
13. The case, so far as the application and the particulars are concerned, thus came before the Tribunal on the basis that it was those three employees who were being put forward as potential comparators, and those three alone. However, in the Applicant's witness statement which was produced on the first day of the hearing in the usual way on 22 July 1997, specific reference was made to Mr White as well. In the paragraph that now appears at the foot of page 92 of our appeal bundle, under the heading "Incitement of Admin", the Applicant alleged that: -

"Other white officers that had been disciplined received much more lenient penalties i.e. misconduct charges, speedy hearing, no final written warning etc. These white officers are Annette Cummings, Mark Platt and Simon Potter. Terry White was never disciplined at all. Terry White was the Unit Director prior to Ms Bussey. He committed multiple gross misconduct, including embezzlement of Council funds, yet he was never disciplined (see newspaper 9 March 1998)"

14. At the hearing on 22 July 1998, Ms Edwards attended and gave her evidence in chief and was cross-examined. In addition Mr Barber on her behalf, called as a witness a Mr Scott, who was an employee of the Respondents. He was the Service Manager of the physical disabilities department who had earlier written an e-mail, which was in evidence before the Tribunal and provided to us, dated 9 September 1996. In this he had been critical of Ms Bussey's conduct and the way this particular case involving Ms Edwards had been handled. The criticism of Ms Bussey's conduct had included a reference to Mr White, but only peripherally since the criticism as set out on page 1 of the Appellant's supplementary bundle was simply that she had failed to close an account pertaining to her business unit on which he had been an authorised signatory. The e-mail concluded with a paragraph in which Mr Scott said

"Unfortunately, Brent has acquired a reputation for having been involved in the largest number of race related IT cases than any other authority in the UK. Given the facts as I have observed them, Joy's action (Ms Bussey) of today to suspend Ms Edwards, in my view, will be adding to that sorry reputation."

15. Mr Scott attended to give evidence on behalf of the Appellant only reluctantly and under service of a witness order, since he was of course an employee of the Respondents. In the course of his evidence, (of which of course Mr Barber was unable to provide a witness statement in advance, since he had no detailed knowledge of what Mr Scott would say as he was attending under compulsion), Mr Scott was asked about the position relating to Mr White, again under questioning relating to the reference to Mr White in that e-mail of 9 September 1996. He said in evidence as recorded on page 50 of the appeal file, that he was concerned that Mr White had been promoted and he, Mr Scott, had made it clear that he should not be trusted with funds. Then he said specifically

"I am aware there was a recommendation on behalf of an internal investigation unit that Mr White be the subject of discipline. It was not pursued.

Mr White received a payment in addition to the lost funds and he did not come back to work."

16. He then added that he did not know whether Joy Bussey was aware of this.
17. At the conclusion of Ms Edward's own evidence which had been taken first, Mr Devonshire, who appeared before the Tribunal as he has before us on behalf of the Respondent authority, had asked her specifically to identify the people with whom she was claiming she should be compared for the purposes of her race discrimination allegations. She had replied

"I compared myself with Jason Potter etc. They were suspended and received written warnings."

That is as the Chairman recorded it on page 47.

18. It is common ground, and we have specifically ascertained from both sides that this is the case, that the reference to "Jason Potter etc" was in fact a reference to the three comparators identified in the earlier particulars of people against whom disciplinary action had been taken within Ms Bussey's unit. They were Simon Potter, Jason Chan and Annette Cummings, and not any other employees, in particular not Mr White.
19. On that footing, when Mr Scott came to the conclusion of his evidence in chief, Mr Devonshire on behalf of the Respondents did not cross-examine him on whether Mr White was a proper comparator with the Applicant for the purposes of assessing her claims of race discrimination. Also conspicuous by its absence, either at the conclusion of Ms Edwards' evidence in chief or at the conclusion of Mr Scott's evidence in chief, was any application by Mr Barber on behalf of Ms Edwards to amend the previously stated list of comparators so as to include Mr White's name in the light of the answers that had been given in particular by Mr Scott, which appeared in some way to corroborate the suggestions being made by Ms Edwards in her witness statement, that she at least viewed him as another Council employee who had been guilty of misconduct but had not been disciplined in the same way as she was. It has also to be borne in mind that Mr White was not a member of the same unit at the same time as Ms Edwards had been and not a member of the group identified as being the proper basis of comparison in the specific questionnaire which had been submitted on her behalf by Mr Barber.
20. Nor was there any such application at the conclusion of the Applicant's case, which came after Mr Scott's evidence had been given and Mr Scott had been cross-examined on the matters Mr Devonshire, at that stage, considered relevant and had also been asked questions by the Tribunal itself.
21. The Respondents' own evidence was then called. No evidence was led on their behalf with regard to the position of Mr White, as would of course have been necessary had he been put forward as a proper comparator; since the Respondents would then have had to produce evidence of their own to indicate what his particular circumstances were and to assist the Tribunal on whether his circumstances were properly comparable to those of the Applicant in determining whether she had received less favourable treatment than he had.
22. Ms Bussey gave evidence on behalf of the Respondents herself, and that evidence is recorded at pages 55-62 of the Chairman's notes in our file. It is further noteworthy that no cross-examination was addressed to Ms Bussey by Mr Barber on the Applicant's behalf about the position of Mr White; and it was not suggested to her that she had acted in any way improperly or that the Respondents had treated the Applicant differentially by way of any comparison, with Mr White. It is further admitted by Mr Barber that no amendment of the list of potential comparators was made on behalf of the Appellant at any stage, nor was any application made to the Tribunal for such an amendment.
23. On that footing, the Tribunal's consideration appears to us fairly and correctly to have been restricted to such comparators as were put forward on the basis of what can loosely be called the pleadings. As the Tribunal recorded in paragraphs 3 and 25 of their extended reasons on pages 7 and 12 of the appeal file, the thrust of the case as they understood it was in any case rather different from the comparison now suggested with Mr White. Paragraph 3 recorded that

"Ms Edwards claimed that she was subjected to various acts of race and sex discrimination by Ms Bussey which were on going and that the suspension and disciplinary action was a continuation of this and constituted further ongoing race and sex discrimination. The allegation was expanded in the further and better particulars provided but, the crux of Ms Edwards' complaint was that her grievance had not been processed."

24. That referred to a separate grievance procedure mentioned by the Employment Tribunal on the same page taken out by Ms Edwards against Ms Bussey. This had been deferred pending the disciplinary proceedings against Ms Edwards herself in accordance with what the Employment Tribunal were told was the Council's standard practice. As recorded in that paragraph, the Employment Tribunal understood the main thrust of the complaint that they had to consider to be that the grievance procedure launched by Ms Bussey had been wrongly deferred. Thus it was for them to determine whether that was treatment that she had been exposed to which other employees had not been or would not have been exposed to in similar circumstances. Further in paragraph 25 on page 7 of the appeal file the Employment Tribunal recorded their conclusions on the issue of comparison in the following terms: -

"No evidence has been produced to show that a woman and/or a male of a different ethnic origin would have been treated differently. The whole nub of Ms Edwards, case is that her grievance was not processed speedily. We are satisfied on the evidence that the disciplinary procedure had to take precedence over the grievance allegation and that if Ms Bussey had still been employed by the Respondent the grievance procedure would have gone ahead."

Consequently they held that they could not find that the Applicant had been treated adversely or victimised in the respects alleged.

25. Mr Barber who appeared before us for Ms Edwards today relied first on the terms of Mr Scott's e-mail and the press report which were before the Employment Tribunal; secondly on the extract from Ms Edwards': own witness statement, which we have read; and thirdly, on the evidence given orally by Mr Scott in response to Mr Barber's questioning in chief, in support of his argument that it was an error of law on the part of the Employment Tribunal not to have addressed the potential comparison with Mr White. However he acknowledged that no amendment to the list of comparators put forward for the Employment Tribunal's; consideration was ever made. He said that such evidence having been given it was made absolutely clear to the Employment Tribunal that a potential comparison with Mr White existed; and that it was a breach of duty on the part of the Employment Tribunal not to consider and address the issue: even though not specifically raised by amendment, and not specifically brought to their attention as an additional issue in the course of the proceedings, at the stage when the case was opened or while the evidence was being taken.
26. In addition to that, he said that his recollection was that he had specifically mentioned this as a potential issue on which he was relying, in his closing address to the Employment Tribunal at the conclusion of the proceedings. It has also to be recorded that Mr Devonshire's clear recollection is that that was not raised as an issue in the course of Mr Barber's closing submissions, any more than it had been stated to be raised as an issue at any earlier stage of the proceedings. Mr Devonshire pointed to the terms in which the Employment Tribunal had recorded the thrust of the Appellant's case as they understood it, to which we have already referred, and submitted that that was consistent only with his own recollection. We find it inexplicable that if the matter had been raised in the specific way that Mr Barber submitted it had at the closing of the proceedings, no mention should have been made of it by the Employment Tribunal in their decision; but such an issue of disputed recollection between representatives is of course a difficult, if not impossible question for us sitting as a Tribunal of law to resolve. The Chairman's Notes of the Evidence are not accompanied by any additional comments by the Chairman herself, to indicate whether she understood the point to have been raised.
27. We would find it very difficult on the material before us to be satisfied that a comparison with Mr White was raised in a sufficiently clear form, as it should have been, by way of specifically submitting that it was an issue to be addressed if not by amendment of the pleadings themselves. That would appear to find no corroboration in the actual records of the Employment Tribunal's proceedings which are before us. But however that may be, we are satisfied that to have raised the point in a specific form only during closing submissions after all the evidence had been taken, would in any event, have been far too late for the matter to be fairly and properly raised as an issue for the Tribunal to address. We have already drawn attention to the fact that if a comparison with Mr White had been a relevant issue for the Employment Tribunal to consider then it would have been necessary for the Respondents to be given an opportunity of calling evidence themselves to demonstrate that he was not in fact a proper comparator by reference to his own particular circumstances. On any view of the way in which the matter was put before the Employment Tribunal on behalf of the Appellants, the Respondents had been deprived of that opportunity. Nor, (quite rightly on the way the matter was, at that stage, put before the Employment Tribunal) did they think it necessary to cross-examine Mr Scott about Mr White. Additionally it is significant, we think, that Mr Barber does not appear to have considered it necessary himself to cross-examine Ms Bussey about Mr White which would have been obviously necessary if Mr White had throughout the proceedings been put in issue as a potential relevant comparator.
28. The matter having come before the Employment Tribunal in that way, we are not satisfied that the fact that they did not themselves open up the possibility of Mr White as a potential comparator or refer to his position specifically in their decision, shows any error of law on their part. We have been assisted by two authorities in particular, in assessing the duty of an Employment Tribunal in circumstances such as these. In all race discrimination cases very difficult and sensitive matters have to be assessed, and in fairness to both sides it is necessary for the case to be considered by the Employment Tribunal to be clearly understood by all parties. Race discrimination is a detestable evil, but this makes it all the more important that allegations of such discrimination should be clearly defined and made, so that those concerned should know the serious charges that they have to meet.

In Chapman –v- Simon [1994] IRLR 124 (at page 129, paragraph 42) Peter Gibson LJ defined the duty of an Employment Tribunal in the following terms: -

"Under [what was then] Section 54 of her 1976 Act, the complainant is entitled to complain to the Tribunal that a person has committed an unlawful act of discrimination, but it is the act which complaint is made and no other that the Tribunal must consider and rule upon. If it finds that the complaint is well founded, the remedies which it can give the complainant under Section 56(1) of the 1976 Act are specifically directed to the Act to which the complaint relates. If the act of which complaint is made is found to be not proven, it is not for the Tribunal to find another act of racial discrimination of which complaint has not been made, to give a remedy in respect of that other act."

29. It is apparent from the paragraphs which follow, which we do not set out in full here, that when Peter Gibson LJ is referring to the "act complained of" it is the particular act of discrimination by comparison with specific other colleagues that is being referred to. In those circumstances as Peter Gibson LJ recorded, if complaints of discrimination by reference to other people come up during the course of the hearing, the duty of the Employment Tribunal is to confine itself to the complaints specifically identified for it at the outset of the proceedings, unless, of course, it allows the Originating Application to be amended so as to bring into the proceedings the complaints not previously relied on.
30. The second authority we find of assistance is Martins –v- Marks & Spencer in which a different division of the Court of Appeal gave guidance as to the proper approach of Employment Tribunals to complaints of race discrimination, which by their nature involve identifying the true grounds of complaint from what may well be diffuse grounds of dissatisfaction. The judgment of the court given by Mummery LJ, (himself of course a former President of this Tribunal) at [1998] IRLR 326, page 333, paragraphs 59-60, confirms earlier judgments given by the EAT making the point that good judicial case management of proceedings by a Industrial Tribunal, particularly in race discrimination cases, is critical to a fair orderly and just and efficient hearing.

As Mummery LJ said

" In most cases of race discrimination it would be good practice to hold a meeting for preliminary direction so as to ensure so far as possible, that the parties of the Tribunal identify the issues before the hearing of the case begins. The Chairman can consider making directions such as agreement on the issues falling for determination of the hearing and if appropriate exchange of witness statements in advance of the hearing."

31. The purpose of identifying and clarifying the issues for the consideration of the Employment Tribunal at the outset is not continued to the practicalities of "case management," but is to ensure that there is a fair and just hearing for the benefit of all parties: of allegations which are understandably difficult for Appellants to establish, and understandably also difficult for Respondents to meet. Particularly in cases of race discrimination it is in our judgment important that Tribunals and parties should clearly identify, at the latest at the opening of the hearing in front of the Employment Tribunal, what the issues required to be considered by the Employment Tribunal are: and in particular what issues the Employment Tribunal is to be required to decide as to the proper comparison with other employees to determine whether less favourable treatment has been shown. If it should transpire in the course of the hearing that those issues need to be expanded, then it is the duty of the parties involved to make that clear to the Employment Tribunal so as to avoid potential injustice in the Respondents not knowing what case they have to meet, and difficulties for the Employment Tribunal in understanding what issues it needs to decide for the purposes of dealing with the complaints that have actually been made to it. If that is not done then the mere fact that other potential comparisons or allegations happen to have been referred to during the course of evidence, without any specific application being made for additional complaints to be introduced clearly into the Originating Application or particulars already given, does not in our judgment provide a ground for criticising the Employment Tribunal for not having itself questioned in the course of the hearing whether the pleadings require amendment. At all events where the Applicant is, as in this case, represented by an experienced adviser, the Employment Tribunal can properly deal with the case on the basis actually put before it on the Applicant's behalf, and confine itself to that.
32. For those reasons we are not satisfied that there was any error of law on the part of the Employment Tribunal in this case in determining it as they did, without adverting to the question of whether there was a potential comparison between the treatment of Mr White and the Appellant, Ms Edwards. Accordingly, we unanimously dismiss the appeal.