United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR LINCOLN CRAWFORD (of Counsel) Instructed By: Messrs Christian Fisher Solicitors 42 Museum Street London WC1A 1LY
For the Respondents	MR PHILIP MEAD (of Counsel) Instructed By: Russel Power London Borough of Tower Hamlets Legal Services Town Hall Mulbery Place 5 Clove Crescent London E14 2BG


 


MR COMMISSIONER HOWELL QC:

In this appeal Mrs Maureen Ledeatte seeks to have set aside as erroneous in law the decision of the Stratford Employment Tribunal comprised in Extended Reasons sent to the parties on 23 April 1999, in which the Tribunal dismissed her complaints that she had been victimised contrary to section 2 of the Race Relations Act 1976 by her employers, the London Borough of Tower Hamlets. Section 2 provides so far as material that:

"Discrimination by way of victimisation

2. (1) A person ("the discriminator") discriminates against another person ("the person victimised") in any circumstances relevant for the purposes of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has -

(a) brought proceedings against the discriminator or any other person under this Act; ..."

and section 4 makes such discrimination by an employer against an employee illegal.

The single issue on which the appeal was allowed to proceed to a full hearing before us was on whether the Employment Tribunal had erred in law in directing themselves that for victimisation under section 2 to be established it was necessary to show that the acts complained of had been done with a conscious and deliberate intention of victimising her, following the decision of the Court of Appeal in Nagarajan v London Regional Transport [1998] IRLR 73, when the law as it stood on the basis of the Court of Appeal's decision at the time of the Tribunal hearing had been reversed by the majority decision of the House of Lords in the same case some three months afterwards on 15 July 1999: [1999] ICR 877. All other grounds of appeal as set out in the original Notice of Appeal lodged on Mrs Ledeatte's behalf were dismissed by another division of this Court at the preliminary hearing on 5 October 1999, for reasons set out comprehensively in the judgment delivered by His Honour Judge Hicks QC on that date, and we are not in any way concerned with them.

Following that judgment and the order made on the preliminary hearing the Notice of Appeal has been substantially amended and, as set out in its amended form at pages 6 (c) to 6 (d) of the appeal file, now relies on the way the Tribunal dealt with three specific instances of alleged victimisation in May, June and July 1997. It is contended that the Tribunal erred in law in basing itself on the propositions that to show unlawful conduct under Section 2 of the Race Relations Act 1976 the person who committed the acts complained of must not only have known of a previous complaint within the protection of Section 2(1) made by the complainant but also have acted deliberately to her disadvantage; and also that it was necessary for the complainant to show conscious motivation on the part of the Respondent. Those propositions are said to be inconsistent with the law as the majority of the House of Lords in Nagarajan's case had held it to be.

The amended Notice of Appeal also contained two additional paragraphs, raising further points which had not been included in the issues directed by the EAT to go forward for a full hearing of this appeal, and we will refer further to them below.

The matter has a long and convoluted history, which is set out in detail in the comprehensive statement of reasons given by the Tribunal for its decision. Those reasons, set out over 18 close-typed pages at pages 7 to 24 of the appeal file, cover many issues of fact and law beyond the scope of the limited victimisation questions before us. The tribunal proceedings themselves were protracted, having initially come on for full hearing on three days in July 1997 and then having had to be adjourned for a prolonged period, and not concluded until after a further four-day hearing in February 1999. The background to the victimisation issues was that Mrs Ledeatte, who is black and had first been employed by the London Borough of Tower Hamlets in November 1986, considered that she had been mistreated by the Council in a number of different ways over a prolonged period and had initially made a complaint of race discrimination in 1994 on the ground that she had been wrongly barred from possible promotion. An internal review concluded that she had not been the subject of discriminatory practices although there had been some mishandling of her case, but Mrs Ledeatte was not satisfied at this outcome and on 7 September 1994 issued an Originating Application alleging racial discrimination in relation to her promotion and career development.

Subsequently, while those proceedings were still on foot, she issued further proceedings on 27 June 1997 alleging victimisation under Section 2 of the Race Relations Act 1976, following these up with amplified allegations in August 1997 (which were themselves listed with a separate application number by the Tribunal). It is those combined allegations of victimisation with which we are concerned on this appeal, all of them being dealt with by the Tribunal in the course of its decision issued on 23 April 1999.

The Originating Application in the initial race discrimination complaint is at pages 22 to 27 of the present appeal file, from which it appears that the complaint is made simply against the London Borough of Tower Hamlets with no individuals being named as additional Respondents. It is common ground that the head of the Council's Personnel Department, a Mr Watson, was aware that this complaint had been made; but in considering the complaints of victimisation in May to July 1997 with which we are concerned, the Tribunal recorded (see paragraph 36 of their reasons) that the Respondents relied on the absence of any evidence that anyone involved in these particular acts of alleged victimisation was aware of Mrs Ledeatte's previous claims at the time that the incidents occurred. The degree and extent of knowledge that has to be shown in pursuing a complaint of victimisation against a large organisation such as a Council in such circumstances formed the main ground of the argument before us and this is an issue to which we shall return.

The detailed facts relating to the victimisation claims before the Tribunal, which included claims relating to incidents before May 1997 as well as those to which the main issue before us on this appeal is addressed, are set out at paragraph 18 of the Tribunal's Extended Reasons. The 1997 incidents stemmed from what happened after Mrs Ledeatte was offered the job of a pre- and post- qualification training and development officer on Grade PO2 in September 1996, and when she returned after a period of maternity leave taken at the end of that year and into the Spring of 1997. As the Tribunal recorded in paragraph 18 (13)-(18) of their reasons:

"(13) … after Mrs Ledeatte's appointment to the PO2 post, it had been decided that this post would be deleted, notwithstanding strenuous correspondence from Mr Pyner [the Respondents' Project Director, who had been supportive of Mrs Ledeatte in his department through the various difficulties she had experienced].

(14) On 16th April 1997 Mrs Ledeatte wrote to confirm that when her maternity leave ran out on 17th April 1997, she would be taking her remaining annual leave and so returning to work on 2nd June 1997, as indeed she did. There then followed correspondence about her entitlement to annual leave, where the Respondents, as they now accept, wrongly told Mrs Ledeatte that she was not entitled to her leave.

(15) Having returned to work on 2nd June 1997, Mrs Ledeatte found that personnel had failed to notify her line manager of her return, so that no provision had been made for her.

(16) On 25th June 1997 Mrs Ledeatte was taken ill at work, and was sent home. Although she sent in a doctor's certificate it did not reach Mr Pyner. The Respondents stopped Mrs Ledeatte's pay. The Respondents now admit that this was wrong: the full extent of the muddle is analysed in Mr Stephens' memorandum to Mr Pyner of 31st July 1997.

(17) Both the leave issue and the pay issue have since been resolved. But the Tribunal accept that both issues were potentially capable of amounting to victimisation contrary to section 2 of the Act.

(18) Mrs Ledeatte also complains that the Respondents had failed to issue a new statement of particulars."

The three incidents relied on in the amended Notice of Appeal arising out of these facts were that:

(a) she had been wrongly informed by a Mr Capstick on behalf of the Respondents in a letter dated 15 May 1997 that she could not carry over her 1996/97 leave entitlement to a following year;

(b) her post in Mr Pyner's department had been deleted while she was on maternity leave and the post given to her on her return was materially different; and

(c) that the Personnel Department had stopped her pay when she went home on sick leave, even though she had sent in a doctor's certificate.

These incidents together with the earlier ones on which Mrs Ledeatte had sought to rely before the Tribunal were dealt with in paragraphs 36 to 43 of their Extended Reasons as follows:

"36 The Respondents objected that several of these complaints were out of time. But their principal defence, was that Nagarajan showed it was necessary for Mrs Ledeatte to show that there had been a deliberate act with the intention of victimising her, and with the knowledge of her complaint of discrimination. Although it was accepted that Mr Walsh [involved in a sickness counselling meeting and other discussions with her in 1995 and 1996] knew about the claims, there was no evidence that anyone else involved in the alleged victimisation was aware of Mrs Ledeatte's claims at the time that the incidents occurred.

37 Mrs Ledeatte chose not to pursue her claim relating to the 1995 assimilation process as it was clearly out of time. The allegations relating to the sickness counselling meeting on 9th May 1996, and the allegations of obstructive behaviour in August/September 1996, are also out of time. We do not find that they are part of a continuing act. Nor do we find that there is any evidence which would support the Tribunal in extended jurisdiction under section 68(6) Race Relations Act 1976 on the grounds that it was just and equitable to do so. Mrs Ledeatte has demonstrated by the capable manner in which she has prosecuted these claims, that she was well aware of the law: and yet she chose to do nothing to pursue complaints in respect of the 1995 and 1996 incidents until June 1997. We can find no satisfactory explanation for that delay. We therefore dismiss those claims on the basis that the Tribunal has no jurisdiction.

38 However, if we are wrong on the jurisdiction point in respect of the 1995 and 1996 matters, Mrs Ledeatte still has to show there has been a deliberate act in each case. We found no evidence that that was the case. On the contrary, these incidents appeared typical of the Respondents' incompetent management techniques. It appears that the Respondents' witnesses were wholly taken by surprise at the counselling meeting on 9th May 1996, when Mrs Ledeatte announced that she was pregnant for a second time, and simply did not know what to do. The muddle and confusion relating to the allegations of obstructive behaviour are amply demonstrated in Mr Pyner's memorandum to Mr Capstick of 23rd October 1996: Mr Pyner's exasperation with his colleagues is underlined by his saying that he is 'sick and tired of this process'. He clearly shares that exasperation with Mrs Ledeatte, and is anxious to welcome her to the team for a job which he sees as 'absolutely key to the implementation of a pre- and post-training continuum in the department'.

39 This leaves the incidents which occurred in May, June and July of 1997, around the time of Mrs Ledeatte's return from maternity leave. We are satisfied that each of the acts on which Mrs Ledeatte relies is capable of amounting to an act of victimisation. However, it is necessary for Mrs Ledeatte to show that the perpetrator not only knew of her complaint (that is, 'the protected act'), but also acted to her disadvantage deliberately.

40 It was Mr Capstick who wrote to Mrs Ledeatte on 15th May 1997 to say that she could not carry over her 1996/97 leave. There is no evidence that Mr Capstick knew of the 'protected act', or, that if he had done so, he wrote that letter in a deliberate attempt to disadvantage Mrs Ledeatte. In the event the matter was subsequently resolved. It is yet another example of incompetence and confusion on the part of the Respondents.

41 The correspondence and to-ings and fro-ings relating to Mrs Ledeatte's return from maternity leave and her new post are little short of farce. Having given her the PO2 post in Pyner's department as a result of the assimilation process, it was then decided to delete the post as part of the Council's savings at a time when Mrs Ledeatte was still on maternity leave and therefore not physically occupying the post. But it is clear from the correspondence that Mr Pyner was determined to have Mrs Ledeatte work in his department. He found alternative funding which would enable her employment there to continue. He clearly made substantial efforts to ensure that Mrs Ledeatte had a job to come back to. However, because of the decision to delete the post she had been given initially, the work that Mrs Ledeatte was given at the outset was not the work she had expected to do. We find that it was gravely incompetent of the personnel department not to explain this to Mrs Ledeatte, or to ensure that her department were briefed about her return. The failure to issue a new statement of particulars is part and parcel of this muddle. But again, we can find no individual who is responsible for this state of affairs, who has both the knowledge of the 'protected act', and the conscious intention of disadvantaging Mrs Ledeatte. The complaints on these grounds must, therefore, fail.

42 Shortly after Mrs Ledeatte returned to work in June 1997, she was taken ill at work, and was sent home. She sent in a doctor's certificate. However, she does not appear to have followed the sickness procedure to the letter. On 3rd July 1997 Mrs Marchant from the Respondents' personnel department wrote to say that she would be stopping Mrs Ledeatte's pay with effect from 26th June 1997 'for the whole period of your absence'. This was clearly a Draconian over-reaction on the Respondents' part. The full extent of the muddle is set out in a memorandum from Mr Stephens of 31^st July 1997. As a result of Mr Stephens' investigation and his conclusions, the issue was resolved.

43 It is hardly surprising that by this stage Mrs Ledeatte simply refuses to accept that the continuing series of problems that she has encountered can be explained by anything other than a deliberate campaign against her on the grounds of her race. Anyone subjected to the experiences that Mrs Ledeatte has had to put up with would be bound to seek an explanation. The Tribunal, too, has a duty to seek an explanation. However, in this last instance, as in the others, we can identify no perpetrator who had knowledge of the protected act and who had the intention to victimise. In short, despite the length of the history of Mrs Ledeatte's problems with her employers, the Tribunal's conclusion is that the explanation is one of muddle and incompetence."

Mr Crawford who appeared before us on behalf of the Appellant made two main criticisms of the way the Tribunal had thus treated the victimisation issues. In the first place he submitted that paragraphs 24 and 36 of the Tribunal's Extended Reasons where they referred to the Court of Appeal's decision in Nagarajan's case showed they had erred in assuming that a deliberate act with the intention of victimising had to be demonstrated, since this had been clearly shown by the subsequent decision of the House of Lords to be erroneous and too strict a test.

Secondly he said that the Tribunal had erred in holding on the facts that the requisite knowledge had not been demonstrated for the purpose of establishing that the Appellant had been victimised by reason of having made a previous protected complaint against the Council within Section 2 of the 1976 Act. Mr Crawford drew attention to the difficulties of proving actual knowledge on the part of large organisations against whom complaints may have to be made when people have suffered adverse treatment following the making of a protected complaint, and to the provisions of Section 32 of the 1976 Act by which anything done by a person in the course of his employment is to be treated for the purposes of the Act as done by his employer as well as him, whether or not done with the employer's knowledge or approval. On that basis he submitted that a case of unlawful conduct on the part of the Council contrary to Section 2 of the Act was made out where, as here, (1) incidents had occurred which the Tribunal had expressly held to be "capable of amounting to an act of victimisation", (2) the head of the responsible department, the personnel department, was well aware that a protected complaint had been made, and (3) it was at the hands of members of that department that the Appellant had suffered the treatment she complained of. For this purpose it was not necessary for the Appellant to prove positively that each individual person who carried out the acts relied on as victimisation had himself or herself been aware of the protected complaint before carrying out the act; alternatively sufficient knowledge for this purpose on the part of the entire department should have been inferred by the Tribunal from all the circumstances.

In this context we were informed by Counsel that the Respondents' personnel department, headed by Mr Watson, numbered some hundreds of people: Mr Capstick had been the head of the Appellant's particular section consisting of ten to a dozen people. It was also common ground that there had been no evidence of actual awareness of the previous protected complaint, on the part of Mr Capstick or the other identified employees of the Council who had carried out the acts complained of. Mr Crawford's submission was that such evidence was not necessary: it was sufficient if actual knowledge of the protected act was shown either on the part of the individual perpetrator, or on the part of the head of the department responsible as was the case here.

On behalf of the Respondents Mr Mead readily conceded that the Tribunal's reliance in terms on the "conscious motivation" test laid down by the Court of Appeal in Nagarajan's case embodied a misdirection in law in view of the later decision of the House of Lords. However, he submitted that that had not been the only or even the principal ground on which the complaints of victimisation had failed, as the Tribunal's reasons clearly showed. Independently of the question of conscious motivation, they had reached and recorded the clear conclusion that no actual knowledge of the protected complaint had been shown on the part of any of the individuals who had committed the acts relied on as "victimisation". In those circumstances the Tribunal had been correct in holding that the complaint of unlawful conduct contrary to Section 2 had not been made out, because without such knowledge it could not be shown that the acts relied on as less favourable treatment of the Appellant had in any degree been done "by reason that" the protected complaint had been made as the wording of the section expressly requires.

In support of this submission Mr Mead referred us in particular to the opinions of Lord Nicholls and Lord Steyn in Nagarajan at [1999] ICR 877, 884-896 as showing that it was in all cases necessary for the complainant to prove that it was the making of the previous protected complaint that had caused the less favourable treatment to be imposed, and that this was quite impossible where the person carrying out the acts relied on was not shown to have been aware of the protected complaint at all. He referred in particular to the formulation by Lord Steyn at [1999] ICR 893D, 895D-E as showing that actual knowledge by the discriminator of the protected act was an essential element: as posed by Lord Steyn the straighforward question that needed to be answered was "did the defendant treat the employee less favourably because of his knowledge of a protected act?" (emphasis added).

Consequently, as the Tribunal had clearly found that the real reason for the way the Appellant had been treated was muddle and incompetence on the part of the Council and not in any degree that the individuals involved had been affected by any knowledge of her earlier protected complaint, Mr Mead's submission was that the decision should stand on that ground and that their reference to the Court of Appeal's judgment in Nagarajan had not resulted in any material error of law affecting their actual decision.

On the main issue we have concluded that those arguments on behalf of the Respondent Council are to be preferred. We accept that insofar as the Tribunal's decision depended upon the application of a "conscious motivation" test for victimisation under Section 2 of the 1976 Act, paragraph 24 shows a clear (though understandable) misdirection in following the principle laid down by the Court of Appeal, then still the authoritative statement of the law but subsequently reversed. The majority decision of the House of Lords in Nagarajan makes it quite clear that, just as in a race discrimination case the unlawful conduct is established if a person is treated less favourably on racial grounds, without further inquiry into whether the motives of the person so treating him or her were consciously racist or even well meaning, so in a case of alleged victimisation under Section 2 the unlawful conduct consists of treating a person less favourably by reason of their having made a previous complaint or other protected act, without inquiry into whether this was done with a conscious intention to punish them or from any other conscious or unconscious motive: such matters are irrelevant to direct discrimination and victimisation alike.

However, the judgments of the House of Lords also appear to us to establish beyond doubt that (as Section 2 itself expressly says) acts of less favourable treatment are only made unlawful under the section if they are carried out "by reason that" the person victimised has done or intends to do some act within the protection of the section. Those words, and the opinion of Lord Nicholls at [1999] ICR 886E-F, appear to us to make it absolutely clear that an actual causal link between the act complained of, and the protected complaint or act by the person victimised, has to be proved in every case and is an essential element of the conduct made unlawful by Section 2.

In the normal case therefore, actual knowledge of the protected act on the part of the perpetrator of the acts complained of as victimisation will be essential to establishing a causal link between the two as contemplated by Lord Steyn, and must be affirmatively established to the satisfaction of the Tribunal on the balance of probabilities. It is no doubt possible to imagine circumstances in which a causal link to satisfy Lord Nicholls's formulation is established so as to make the conduct unlawful under Section 2, even though actual knowledge on the part of the person carrying out the final act in the chain is not present. For example, if one employee in a large organisation who is aware a person has made a protected complaint makes a general comment that he or she is a troublemaker, and another employee takes that as the cue for leaving the person off a short-list for promotion, the causal link between the making of the complaint and the eventual mistreatment may be established on the facts, even though the second employee was unaware of the protected complaint or the reason why the comment had been made.

But that does not detract from the need to show in relation to any act of less favourable treatment alleged to constitute victimisation contrary to Section 2, that the doing of that particular act has been caused by the protected act. It is not possible to meet Lord Nicholls's test that the protected act was a "significant influence" on what has been done without showing that actual awareness of the protected act played a part in what led to the doing of the act of alleged victimisation itself. To introduce a doctrine of imputed or "collective" knowledge into this area of the law as Mr Crawford's argument would have us do, would in our judgment be plainly inconsistent with the express requirement, in section 2 itself and in the Lords' opinions, of an actual causal link between the protected act and the conduct of which complaint is made.

It appears to us quite clear on a fair reading of the Tribunal's stated reasons at paragraphs 39 to 43 that actual awareness of the making of the Appellant's previous protected complaint had not been shown to play any part in what led to the various acts relied on by her as acts of victimisation in May, June and July 1997. Indeed, Mr Crawford did not contend that the evidence showed this in the sense we consider to be required. In view of that finding which appears to us to be a justifiable one on the primary evidence to which the Tribunal referred, we consider that Mr Mead's submission was correct that no material error of law such as to invalidate the Tribunal's conclusion has been shown, despite the apparent misdirection on the question of "conscious motivation" shown in paragraph 24.

The additional issues sought to be introduced by Mr Crawford at the appeal hearing before us, not the subject of the EAT's earlier direction as issues on which the appeal was to go forward, consisted of first an entirely fresh point alleging that on the Tribunal's finding that a post offered to the Appellant had been deleted while she was away on maternity leave, the Respondents had been guilty of direct sex discrimination contrary to Section 1 (1) (a) of the Sex Discrimination Act 1975 and we should make our own declaration to that effect; and secondly that the Tribunal had been wrong in declining to exercise their discretion to admit her earlier complaints of alleged victimisation by reference to incidents in 1995 and 1996, although not made within the prescribed time limit under Section 68 of the Race Relations Act 1976.

We do not consider that we should accede to Mr Crawford's submissions on either of those issues. None of the three Originating Applications made by the Appellant in these proceedings had raised any issue of sex discrimination and nor was any such complaint raised in the proceedings before the Tribunal. The question of whether the Appellant might have been entitled to a declaration that she had been sexually discriminated against is outside the proper scope of this appeal, even if an entitlement to such a declaration was shown to be established on the facts, which we do not accept. The second contention that the Tribunal erred in declining to extend the time limit for pursuing earlier potential complaints of victimisation does not, in our judgment, show any arguable ground for interfering with their decision. This was a matter for the discretion of the tribunal, which did properly consider whether these additional earlier complaints should be allowed in out of time. Their reasons for determining that the facts did not justify an exercise of discretion in favour of the Appellant are clearly explained in paragraph 37 of their statement quoted above, and appear to us to justify the course they took.

For those reasons, we unanimously dismiss this appeal.