At the Tribunal | |
Before
HIS HONOUR JUDGE J ALTMAN
MR D J JENKINS MBE
MRS D M PALMER
APPELLANT | |
MS L EZEONYIM |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellants | MR ADRIAN LYNCH QC Policy & Administration Department Legal Services Division London Borough of Hammersmith & Fulham Town Hall, King Street London W6 9JU |
For the Respondent | MISS SARAH MOOR (of Counsel) Messrs Thompsons Congress House Great Russell Street London WC1B 3LW |
JUDGE J ALTMAN
"She suggested that she should have the supervision with the Deputy Manager until the complaint had been fully investigated."
"We were particularly referred to the process of the investigation contained in paragraph 9. The heading in this is "managing both parties during the investigation stage".
9.1 states
"9.1 Where the complainant and the alleged harasser work in close contact, the employing Director can in consultation with the HRS Consultant and if satisfied that the complaint is of a nature where it may be difficult for both parties to continue to work together as usual, consider;
- transferring the alleged harasser(s) for the period of the investigation;
- suspending any of the parties from duty on full pay during the period of the investigation as a means of:
(a) relieving the stress and pressure on both parties,
(b) preventing the risk of physical assault, victimisation or intimidation
(c) ensuring that both parties are treated fairly;
- reorganising or reallocating work so as to avoid the need for contact between the complainant and the alleged harasser."
Any action taken should not unfairly disadvantage the complainant. There is no intention that there would be any inherent disadvantage to either party built into this procedure, but it is recognised that particular safeguards are necessary to protect a complainant.
If a decision about suspension, transfer or remaining in the workplace has been made, the alleged harasser must be informed of the arrangements being made to investigate the complaint and of the possibility of disciplinary action following the investigation, by the employing Director."
"Mr Alltimes was asked by the Applicant to transfer Mr Hutchings during the period of investigation but he failed to do that but he did offer to transfer Ms Ezeonyim instead. He did not consider whether either or both of the parties should be suspended meanwhile. Mr Alltimes set about establishing an investigating team under the provisions of the harassment procedure and following criticism that had been contained in the decision of the Tribunal on Mr Andeaobe's case, he appointed Doreen Redwood, Head of Strategic Planning who was black to be the investigation officer; she was scheduled to leave her employment at the end of March. Bridget Holden who was the designated personnel officer was also on the panel."
"He could not understand why the Applicant and her Union Representative were reluctant to attend the investigation interviews and as he had not had any detailed information he did not think it appropriate to change his view on the procedures or the actions under them."
"since you have refused to transfer the manager despite having other options namely suspension of either or both parties on full pay, you leave me with no option but to address the matter at a higher level."
Later, she said, in addition to this,
"why do you not suggest that Mr Hutchings himself voluntary transfer given that there is another manager present to run the Centre."
"on the basis of the information provided together with your refusal to meet with them no evidence of harassment can be found and the investigation is therefore terminated."
"It was difficult for Mr Alltimes to know exactly what the Applicant was complaining about and Mr Alltimes has under his control some 1300 employees and the Applicant refused to give details until she was physically separated from Mr Hutchings and that is why Mr Alltimes decided that this matter could not be proceeded with."
"Mr Alltimes failure to operate the protection of the harassment procedure was:
because of her race;
because she had given evidence against the First Respondent at the earlier Tribunal case;
because she had invoked the harassment procedure."
"The finding that we have made that Mr Alltimes did fail to follow the First Respondent's harassment procedures lead us to draw an inference that he did so because of the Applicant giving evidence in the previous Employment Tribunal case on behalf of Mr Andeaobe and also on the grounds of her race. Mr Alltimes agreed in evidence that there was institutionalised racism in the Council. It is clear that Mr Alltimes did not consider the Applicant's complaint of racial harassment with the seriousness that it deserved. The harassment procedures which we refer to, set out clearly what should be done in circumstance where a complaint is made. The harasser should be removed from the place of work during the time that the investigation is being carried out. This was not done and as a result of this the Applicant suffered a detriment within the meaning of the Race Relations Act. We are satisfied that Mr Alltimes would not have treated a complaint by another employee of harassment in this manner."
"once you detect that there has been a misdirection, and particularly that there has been an express misdirection of law, the next question to be asked in not whether the conclusion of the Tribunal is plainly wrong, but whether it is plainly and unarguably right notwithstanding that misdirection. It is only if it is plainly and unarguably right notwithstanding a misdirection that the decision can stand. If the conclusion was wrong or might have been wrong, then it is for an appellate tribunal to remit the case to the only tribunal which is charged with making findings of fact."