Title: Appeal No.
Author: S Hodgkinson
Last saved by: Joe
Company: Employment Tribunal Service

Appeal Nos. EAT/444/00, EAT/493/00 
& EAT/494/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 19 October 2000

Before
HIS HONOUR JUDGE PETER CLARK
MR J HOUGHAM CBE
MR D A C LAMBERT

EAT/444/00
MISS F RYAN	APPELLANTS
EAT/493/00
MS A D SAVIN
EAT/494/00
MS L A MURPHY

BIRMINGHAM CITY COUNCIL	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE

Revised

	APPEARANCES

For the Appellants

MISS E SMITH
(of Counsel)
Deighton Guedella
Solicitors
Top Floor
30-31 Islington Green
London
N1 8DU

	JUDGE PETER CLARK:	

1.	The appellants, applicants before the Birmingham Employment Tribunal, brought the following complaints:

(1)	all three alleged that the respondent, Birmingham City Council, had taken action short of dismissal against them on grounds of their trade union membership or activities contrary to s.146 of the Trade Union Labour Relations (Consolidation) Act 1992, and

(2)	Miss Ryan and Ms Murphy complained of victimisation contrary to s.2 of the Race Relations Act 1976.

2.	The tribunal heard the case in two tranches. First, from 4th-7th May 1999 and secondly from 15-19th November 1999.

3.	By a decision with very full extended reasons promulgated on 2nd March 2000 all complaints were, by a majority, dismissed. Against that decision these appeals are brought.

The Facts

4.	In summary the appellants were lay officials of the trade union, UNISON, which was recognised by their employer, the respondent Council.

5.	On 3rd February 1997 Miss Ryan, the Chief Union Steward, met with Miss Holsey, employed by the respondent as a team leader in the Neighbourhood Advice and Benefits Unit. The meeting was called for by Miss Ryan to discuss Miss Holsey’s disciplining of a union member GS, over her personal hygiene.

6.	The meeting did not go well and at the end Miss Ryan indicated that a grievance would be taken out against Miss Holsey alleging racial harassment and a request made that Miss Holsey be suspended.

7.	Miss Holsey was reduced to tears at the end of the meeting and she in turn decided to take out a grievance against Miss Ryan. In fact she eventually raised two separate grievances against her.

8.	The complaint against Miss Holsey, made on behalf of GS, alleged racial harassment/discrimination and sex discrimination.

9.	Then, on 17th February Miss Murphy, a Benefits Steward raised a complaint under the Council’s “Racial and sexual harassment at work” policy against Miss Holsey on behalf of a union member, AC and Ms Savin, the UNISON Deputy Chief Steward, raised a complaint against Miss Holsey in respect of a member, Tony Hartley.

10.	In response to those complaints, on 20th February 1997, the respondent moved Miss Holsey from the office at which she was based.

11.	Upset by these complaints, Miss Holsey took out her second grievance against Miss Ryan on 24th February. Essentially she contended that she was the victim of a conspiracy, orchestrated by Miss Ryan, to raise complaints against her, whereby Miss Ryan was abusing her position as Chief Steward.

12.	The tribunal noted that on 23rd February Mr Hartley wrote to Ms Savin withdrawing the complaint made on his behalf against Miss Holsey. He did have a complaint relating to his disability, but it was not directed to Miss Holsey.

13.	Between April and May 1997 the respondent carried out investigations into the complaints made by AC and GS against Miss Holsey. In May 1997 the chair of the investigation panel, Margaret Elcocks issued a report which recommended that no action should be taken against Miss Holsey and that GS should be spoken to about her personal hygiene. In a second report, relating to AC, the panel found she had not been harassed or intimidated by Miss Holsey, the complaint was largely unsubstantiated and given that AC had waited over 12 months before making a complaint they questioned whether Miss Holsey had been the victim of a conspiracy.

14.	Following those reports Miss Holsey reminded the respondent of her two grievances against Miss Ryan. On 28th July Miss Ryan was interviewed and on 6th August she was suspended pending an investigation into Miss Holsey’s complaints and her recognition as Senior Steward was withdrawn.

15.	That investigation proceeded through August and September 1997. Miss Ryan, alone of the appellants, remained suspended.

16.	This panel, chaired by Miss Lee, reported in September 1997. The panel’s main findings were:

(1)	it was inappropriate for Miss Ryan to make a complaint of race discrimination against Miss Holsey and for her suspension to be demanded by the stewards, and

(2)	by including an allegation of sex discrimination there appeared to be a deliberate attempt by Miss Ryan to escalate the complaint against Miss Holsey.

17.	They recommended to the Council that a formal complaint should be submitted to UNISON in respect of inappropriate actions and behaviour of the UNISON representative. Whilst they did not believe that there was a conspiracy against Miss Holsey to contrive complaints of race and sex discrimination, their actions were outside the policy and procedures of the Council and UNISON.

18.	Thereafter a formal complaint was made by Miss Pearce, Head of Neighbourhood Advice and Benefits against the three appellants. Following investigation the respondent decided to take no formal disciplinary action against any of the three.

The Employment Tribunal decision

19.	(1)	Action short of dismissal
		The issues to be decided by the tribunal were these:

(a)	did the respondent take action short of dismissal in each case?
(b)	if so, was it taken for the purpose of preventing or deterring the appellants and each of them from taking part in the activities of the union or penalising them for doing so?
	The tribunal recognised that the burden lay on the respondent to show that its purpose or intention in taking the relevant action, if any, was not for the prohibited purpose (s.148 of the 1992 Act).

(2)	Victimisation
	It being accepted by the respondent that each of the appellants had done a protected act, namely making a complaint of discrimination on behalf of a union member, the question was whether they were treated less favourably than a person who had not done a protected act by reason of the fact that they had done the protected act? The tribunal were reminded of the guidance given by the House of Lords on this question in Nagarajan v London Regional Transport [1999] IRLR 572. Conscious motivation is not, contrary to the earlier authorities in the Court of Appeal, a necessary ingredient in establishing victimisation.

The majority view

20.	It was conceded by the respondent that Miss Ryan’s suspension was action short of dismissal. The tribunal thought it less clear as to whether the other two appellants were subjected to action short of dismissal.

21.	On the second question under the 1992 Act complaint, what was the employer’s purpose, the majority were satisfied that the respondent was perfectly entitled to investigate Miss Holsey’s grievances. They, the tribunal, thought there was something in them. In suspending Miss Ryan and investigating the actions of all three their purposes was not to prevent or deter their taking part in trade union activities nor to penalise them for doing so. The respondent had discharged the onus placed on it by s.148.

22.	As to the claim of victimisation, there was no less favourable treatment of Miss Murphy (Ms Savin did not pursue a complaint of victimisation). Miss Ryan was less favourably treated in that she was suspended, but that was not by reason of her having done a protected act, it was in order that the respondent could properly investigate Miss Holsey’s complaints against her.

23.	The minority member took a contrary view on the facts and would have upheld all the complaints of action short of dismissal and Miss Ryan’s complaint of victimisation. He is silent as to the Miss Murphy’s complaint of victimisation.

24.	At all events, the majority view prevailed and the complaints were dismissed.

The Appeals

25.	In these appeals Miss Smith takes the following five points:

(1)	she submits that the appellants did not get a fair hearing before the tribunal, to which they were entitled under Article 6(1) of the European Convention on Human Rights, now contained in the Human Rights Act 1998, due to the delay between the first tranche hearing in May 1999 and the second in November 1999. 

	She complains that as a result of the six month delay between the hearings the tribunal made factual errors in their decision and this was in turn attributable in part to their direction that they would not hear oral submissions at the end of the case from the parties’ advocates on matters of fact.

	It is an unfortunate and regular occurrence that tribunal hearings are interrupted for sometimes a considerable period of time. It arose in this case because originally the matter was listed for four days following a directions hearing at which that time estimate was given. It then became necessary to find a further five days in order to dispose of the matter; and it took six months before a slot could be provided by the tribunal, on which all members of the tribunal were able to sit. 

That said, we are not satisfied that this is a case in which the appellants have been deprived of a fair hearing. It seems to us, looking at the reasons as a whole, that the tribunal took care to consider the conflicting factual evidence that was before them and we also take into account the fact that both parties’ advocates were permitted to put in written submissions at the close of the case and did so; those submissions, inevitably, would touch on the factual matters which the tribunal had to decide.

(2)	Miss Smith contends that the majority misapplied the provisions of s.2 of the 1976 Act in considering the claims of victimisation by the first and third appellants. Having correctly directed themselves in accordance with Nagarajan that motive was irrelevant it is submitted that they failed to ask themselves the question but for the protected act done by relevant appellants, would the respondent have treated them less favourably?

	We were referred to the later Court of Appeal decision in Chief Constable of West Yorkshire and others v Khan [2000] IRLR 324. 

	We have those cases very much in mind, but we do not understand either the House of Lords or the Court of Appeal to be suggesting that there need be no direct cause or connection between the doing of the protected act and the less favourable treatment complained of. It seems to us ‘by reason’ in s.2(1) of the 1976 Act involves a causal question. It is absolutely clear to us that on the facts this tribunal found there were no causal connection between the doing of the protected act and the less favourable treatment in Miss Ryan’s case, suspension. That, it seems to us, is a permissible finding both in fact and in law.

(3)	It is submitted that there was no evidence to support the findings in paragraph 44 of the decision by the majority as to this being a personal grudge held by Miss Ryan.

	We have considered the findings set out in paragraph 44. The majority of the tribunal, having heard evidence over some eight days, were satisfied, as a matter of fact, that the complaints by the three appellants on behalf of members of UNISON were orchestrated by Miss Ryan and that accordingly the respondent was entitled to have suspicions as to their motives and actions and investigate the matter. 

	Miss Smith contends that there was no evidence to support that finding. We disagree. The tribunal have set out at some length the circumstances surrounding the complaints of, respectively, GS, AC and Mr Harley. It was Miss Holsey’s contention from the outset that she was victim of a conspiracy by these three stewards. The respondent did not find such a conspiracy, nor, indeed, did the tribunal. But the tribunal plainly took the view that Miss Ryan was motivated by a personal grudge in the actions which she took. 

These findings do not, of themselves, answer the question, what was the respondent’s purpose, but we cannot say that they are irrelevant for the tribunal when considering what that purpose was.

(4)	It is submitted that the tribunal took into account irrelevant factors, particularly the findings at paragraph 44.

	As we indicated earlier, we do not regard those matters as irrelevant, nor, indeed, was it irrelevant that the national union and officers of the national union at the time did not appear to support the appellants in this case, particularly where their complaint was that they had been discriminated against on the basis that they had taken part in the activities of that union.

	Miss Smith points out that she called evidence from members of the local branch in support of the appellants and that fact is not recorded within the tribunal’s reasons.

	It is well established, see Meek v City of Birmingham District Council [1987] IRLR 250, that it is not necessary for a tribunal to set out each and every piece of evidence it received or each and every issue of fact, only those matters which are necessary to explain the conclusion which they reached.

(5)	Miss Smith submits that the tribunal made certain factual errors in their reasons and that this amounted to an error of law.

	We have considered those submissions. It is not our function to decide questions of fact. We are not persuaded that any error of law is made out under this head. Nor indeed any head of appeal now advanced before us.

26.	Put shortly, we think that this was a robust decision by the tribunal on the facts. They asked and answered the relevant legal questions. There is no error of law in their approach. Consequently, these appeals must be dismissed.

Copyright 2000

EAT/444/00, EAT/493/00 & EAT/494/00

EAT/444/00, EAT/493/00 & EAT/494/00
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