United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR NICHOLAS HART (Solicitor Advocate) Messrs Slee Blackwell Solicitors 10 Cross Street Barnstaple Devon EX31 1BA
For the Respondents	MISS MARY O'ROURKE (of Counsel) Messrs Hempsons Solicitors 33 Henrietta Street Covent Garden London WC2E 8NH


 


MR JUSTICE LINDSAY (PRESIDENT): We have before us the full hearing of the appeal of Mr J M Vogler in Vogler v British Dental Association. Today Mr Hart has represented Mr Vogler and Miss O'Rourke has represented the BDA.

1. The argument involves quite a careful look at section 4 of the Sex Discrimination Act 1975. The section is concerned with victimisation and with the concept of a protected act. It arises because Mr Vogler's complaint was that his dismissal, which was held to have been on 3rd June 1998, was an act of victimisation on the part of the BDA, his employer. We need to look at section 4 in some detail:

"(1) A person ("the discriminator") discriminates another person ("the person victimised") in any circumstances relevant for the purposes of any provision 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 or the Equal Pay Act 1970 or sections 62 to 65 of the Pensions Act 1995 [no allegations of that kind arise and so (1)(a) we can forget about), or

(b) given evidence or information in connection proceedings brought by any person against the discriminator or any other person under this Act or the Equal Pay Act 1970 or sections 62 to 65 of the Pensions Act 1995 in relation [again, that subparagraph does not require any further consideration in relation to Mr Vogler's case], or

(c) otherwise done anything under or by reference to this Act or the Equal Pay Act 1970 or sections 62 to 65 of the Pensions Act 1995 in relation to the discriminator or any other person [It is not entirely clear whether that is going to be relevant or not; we will have to return to that.], or

(d) [has] alleged [and this is the most important and most relevant of the subparagraphs] that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act or give rise to a claim under the Equal Pay Act 1970 or under sections 62 to 65 of the Pensions Act 1995,

or by reason that the discriminator knows the person victimised intends to do any of those things, or suspects the person victimised has done, or intends to do, any of them."

Then there is a reference in 4(2) to cases where the allegation was false and not made in good faith. We do not need to look into that and we do not think we need read out 4(3).

2. Well, of course, to discriminate within section 4 is not, of itself, a contravention of the Act. So far as is material to this appeal, to make the discrimination unlawful it needs to be shown, and this is relative to the facts of this case, that it was an employer who was the discriminator and that therefore section 6(2)(a) and (b) has been brought into play. Section 6(2) says:

"It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her-

(a) in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or

(b) by dismissing her, or subjecting her to any other detriment."

So, reverting to section 4(1)(d) and leaving aside the BDA itself as it was not said that any protected act consisted of an allegation of a contravention of the 1975 Act committed before 3rd June 1998 by the BDA, the "any other person" within 4(1)(d) needs to be an employer of an individual who has been the victim of whatever contravention has been alleged and the allegation needs to be of discriminatory behaviour of a kind such as falls within 6(2)(a) or (b). Supposing there is shown a protected act within 4(1)(c) or (d), then one has to ask if the person victimised, and here the claim is Mr Vogler's, has been treated by the discriminator, here the BDA, "less favourably than" in comparable circumstances that discriminator would treat other persons? Here, therefore, the less favourable treatment alleged, as we shall see, was that of Mr Vogler's dismissal by the BDA Chief Executive, Mr Hunt, which was on 3rd June 1998. If that is the less favourable treatment, then one has to ask the important causal question, was that dismissal "by reason" of the protected act? It has to be recognised that the impugned actor, here Mr Hunt, does not need to be conscious that he is acting as he does by reason of the protected act; it suffices if he unconsciously acts by reason of the protected act. It is, of course, difficult to see how the actor can act by reason of the protected act if he does not know of it, nor of the victimised person's intention to do it, nor have any suspicion that the victimised person has done it or intends to do it. So the actor's knowledge comes into play and has to be the subject of proof or inference. So much for the background to the Act.

3. Looking at the chronology of the matter, it is as follows: on 31st August 1998 Mr Vogler lodged an IT1 for unfair dismissal, breach of contract, sex discrimination, wages and trade union activities. His IT1 was supported by a long and detailed explanation of the nature of his case. So far as concerned sex discrimination (and that is the only aspect that we are concerned with) his amplification of his IT1 said:

"Prior to my dismissal, I was assisting a number of female employees in pursuing complaints of harassment against senior managers with the Greater Glasgow Community NHS Trust. The subject and nature of the complaints were capable of being pursued under the 1975 Sex Discrimination Act, following the exhaustion of the internal mechanisms and procedures of the Greater Glasgow Community NHS Trust. One of these employees was Dr Isobel Quarrell who was an accredited representative of the British Dental Association."

A little later he says:

"My actions in respect of pursuing complaints of harassment in relation to Dr Quarrell and her colleagues, was not referred to as part of the grounds for my dismissal. …"

and then:

"Action I was taking to support Dr Quarrell and her colleagues was by reference to the Sex Discrimination Act for the purposes of Section 4(1)(c) of this Act.

The principal or substantive, contributory reason for my dismissal was in relation to my action in support of female BDA members. Accordingly, my dismissal amounts to discrimination for the purposes of Section 4(1) of this Act."

He had been employed for less than two years, so, on the face of things, he could not raise a claim for unfair dismissal, but the case of Seymour-Smith was at the time awaiting decision in the House of Lords.

4. On 22nd September 1998 the BDA put in its IT3 and, so far as concerned sex discrimination, they said this at paragraph 10 of their grounds of resistance:

"Insofar as it is understood that the Applicant's case is based (solely) on a complaint of victimisation contrary to section 4 of the Act, it is denied that his dismissal was in anyway caused by or connected or related to any complaint under the Act by Dr Quarrell or any of her colleagues, and the Applicant is put to strict proof of the allegations he makes in this respect (and specifically the causal link to his dismissal as alleged) and particularly as to knowledge of such matters on the part of the Respondent's Chief Executive prior to or at the time of his dismissal. Further, the Respondent reserves the right to seek further particularisation of this allegation and discovery of all relevant documentation."

A little later:

"11. … The Applicant is put to proof of the genuineness of his complaint under the Sex Discrimination Act 1975 rather than the use of such a complaint to avoid the problems of lack of a qualifying period for a complaint of unfair dismissal, and the consequent dismissal of his claims on or after a preliminary hearing."

5. Mr Vogler served further particulars which at two points (but, as it seems to us, only at two points) could arguably be taken as alleging that the BDA or any other person (and here it would have to be "any other person") had committed an act which could amount to a contravention of the 1975 Act. Those passages in his particulars are at page 93 of our bundle, at paragraph 6, and one has to precede a reading of the passages by noting that the reference is to public holiday entitlement for employees at Glasgow Council Mental Health NHS Trust:

"However, the Director of the Community Dental Service then refused to implement this agreement. I wrote a number of letters to the Director of Human Resources on this but he did not respond. As a consequence, sometime between June and August 1997 I formally registered a dispute on this issue. …"

Whether that issue did allege that the employer, the Glasgow NHS Trust, had committed a contravention of the 1975 Act would depend on a sight of the complaint, which was said to have been registered by Mr Vogler. Then on page 96 of our bundle at paragraph 14, there is another reference:

"On or around the afternoon of 13th March 1998, I met with Dr Patterson (BDA, Head of Salaried Services) and I raised with him issues concerning the Greater Glasgow Community and Mental Health Trust. I iterated that I felt the actions of the Community Dental Service Management Team towards their staff were completely unacceptable. As before, Dr Patterson agreed. …"

Well, whether that "iteration" included an allegation of a contravention of the 1975 Act would, again, depend on evidence. One has to bear in mind, and it is a thing I shall be saying more than once in the course of this judgment, the particulars are not evidence. Now whether, even if these were relevant allegations of a contravention, the Chief Executive of the BDA (Mr Hunt who dismissed Mr Vogler on 3rd June 1998, as the Employment Tribunal held, in consequence of a conversation with him on 2nd June 1998) knew of them so that they could, consciously or unconsciously, have operated on his mind on 2nd or 3rd June 1998, would plainly need to be a matter of evidence. The particulars said at paragraph 26, page 102 of our bundle:

"Dr Patterson would meet with the BDA Chief Executive on a regular basis. I was not privy to the agenda or content of those meetings, but it would be highly likely that Dr Patterson would have advised the BDA Chief Executive of issues and developments arising from the Greater Glasgow Community and Mental Health NHS Trust."

So those were the particulars but not, of course, the evidence.

6. Witness statements were exchanged, including a long one from Mr Vogler, which we have not, in fact, seen.
7. On 10th, 11th and 12th August 1999 there was a hearing at the Employment Tribunal. On 3rd September 1999 the decision was sent to the parties. It was the decision of the tribunal at London (North) under the chairmanship of Miss Lewsey sitting with Mr Carter and Mr Mothersdale and it was:

"The unanimous decision of the Tribunal is that

(a) the Applicant's complaint of unauthorised deduction from wages in respect of the period from 2 to 9 June 1998 fails;

(b) the Applicant's complaint of unauthorised deduction from wages in respect of holiday pay fails;

(c) the Applicant's complaint of sex discrimination by way of victimisation under section 4(1) of the Sex Discrimination Act 1975 fails;

(d) the Applicant's complaint of unfair dismissal is stayed pending the outcome of the decision of the House of Lords in R –v- Secretary of State for Employment ex parte Seymour-Smith and Perez."

So far as concerns the appeal it is only (c) that we are concerned with, the aspect of sex discrimination.

8. On 12th October 1999 the Employment Appeal Tribunal received a long Notice of Appeal from Mr Vogler. The matter came on for a preliminary hearing at the Employment Appeal Tribunal on 22nd May 2000 and an order was made which said:

"THE TRIBUNAL ORDERS that the Appeal be allowed to proceed to a full hearing of the Employment Appeal Tribunal limited to the issue of whether the Employment Tribunal erred in law in holding that the Applicant's complaint of sex discrimination by way of victimisation was wholly misconceived because they failed to have proper regard to the construction of Section 4(1)(d) of the Sex Discrimination Act 1975

…

THE TRIBUNAL FURTHER ORDERS that within 14 days of the date of this Order the Appellant do lodge an Amended Notice of Appeal"

No order was made, and it seems that no request was made, for Chairman's Notes of Evidence.

9. On 30th May 2000 an amended Notice of Appeal was lodged by Mr Vogler and I think it is probably best, because there has been a certain amount of confusion about what the Notice of Appeal allows Mr Hart to argue and what it does not in relation to the order I have just read, to refer to it. It says:

"The ground upon which this appeal is brought are that the Employment Tribunal erred in law in that:

At paragraph 30 of the extended reasons the Learned Chairman stated:

i. "There is no suggestion of evidence that when Mr Vogler was dismissed the complaints of those two dentists were in any way complaints of sex discrimination". As a matter of fact the Appellant's further and better particulars made it quite plain that there was a suggestion of complaints of sex discrimination and,

ii. "In addition Mr Vogler was only acting as a representative and none of the matters of which a complaint is made by Dr Quarrell and Dr Blair relate to Mr Vogler". The protection and ambit of Section 4(1) of the Sex Discrimination Act 1975 does not exclude employees or others merely acting as a representative of colleagues or co-employees. It is irrelevant and immaterial that none of the matters of which complaint was made by Dr Quarrell and Dr Blair relate to Mr Vogler. It is, if the same were alleged by the Respondent, irrelevant that the Appellant was not a co-employee of Dr Quarrell and Dr Blair.

iii At paragraph 31 of the extended reason the Learned Chairman stated:

"It is the unanimous decision of the Tribunal that Mr Vogler's complaint of sex discrimination by way of victimisation is wholly misconceived". That decision is wrong as a matter of Law. The Appellant's complaint falls quite properly under Section 4(1)9c) and (d) of the Sex Discrimination Act 1975."

10. With that before us, we go then to the extended reasons. The tribunal heard oral evidence. It says at paragraph 3:

"… The Tribunal heard evidence from Mr Vogler and his witnesses, Ms Burchett, Dr R Howell, Ms Y Cleary, Dr Y Blair and Dr I Quarrell, and also heard evidence on behalf of the Respondent from Mr J Hunt, the Chief Executive of the Respondent."

The BDA is described in its role as Mr Vogler's employer. The tribunal says of the BDA:

"4 … It represents dentists across the whole spectrum of the profession and has three main functions, those of a professional body, a scientific society and a trade union. One of the departments of the Respondent was the Salaried Services Department, which provided advice and assistance to individual members of the BDA in relation to their employment, from general queries to representation at disciplinary hearings. The head of this department was Dr Pat Patterson and his deputy was the departmental manager, Sara Osborne. Mr Vogler was one of the executive secretaries to the department, of whom there were two."

Mr Vogler had assisted Dr Quarrell with an issue that was not one of sex discrimination. In paragraph 6 the tribunal says:

"Mr Vogler became involved in assisting Dr I Quarrell in relation to difficulties she was encountering with the Greater Glasgow Community and Mental Health Trust. An issue arose in relation to the time at which a mobile dental clinic, at which Dr Quarrell was in attendance left Twechar School. Mr Vogler was involved in this issue and told the Tribunal that he had discussed it was with Dr Patterson."

In doing so he wrote a letter which the Employment Tribunal held to be potentially defamatory, alleging a fabrication of comments by a man who seems to have been another member of the BDA. The recipient of the letter or those acting on behalf of the recipient of the letter took the matter very much to heart. They wrote:

"This is an offensive and extremely serious allegation. Indeed, it is a libel which has been referred to the Medical and Dental Defence Union."

Mr Hunt, the Chief Executive, travelled to Glasgow and on his return he decided to dismiss Mr Vogler. He met Mr Vogler on 2nd June 1998. The tribunal said:

"18 … At the beginning of the meeting, Mr Hunt told Mr Vogler that he was being dismissed for gross misconduct. Mr Vogler had not been told what the meeting was to be about prior to attending it and the dismissal was made at the beginning of the meeting without explanation, although the meeting then went on to consider in detail the reasons for the dismissal."

On 3rd June 1998 Mr Hunt wrote to Mr Vogler saying:

"I am writing to confirm what I said to you yesterday. At that meeting I dismissed you with immediate effect on the grounds of gross misconduct.

The misconduct in question was your action in sending a letter dated 23 March 1998 to the Chief Executive of the Greater Glasgow Community and Mental Health Trust in which you made extremely prejudicial and potentially defamatory remarks about an employee of the Trust. In so doing you exposed the Association to a very considerable risk of legal action; brought the Association into disrepute and caused a number of Members to question their continued membership of the Association."

The tribunal said that:

"23 … it is our unanimous decision that the effective date of termination of his employment was 3 June 1998."

So far as concerned unfair dismissal, the tribunal, of course, recognised that Mr Vogler did not have the necessary length of service and they state that that part of his case was to await the House of Lord's decision in Seymour-Smith but they went on to say:

"33 The Tribunal has, however, indicated that, were it to have jurisdiction, then it would make the following findings:-

(a) The [our emphasis] reason for Mr Vogler's dismissal was his conduct in sending the letter of 23 March 1998. That is a reason relating to conduct, which is a potentially fair reason for dismissal under section 98(2)(b) of the Employment Rights Act 1996."

They did have jurisdiction to find that as a fact. The finding that the reason for the dismissal was Mr Vogler's conduct in sending the potentially defamatory letter, a matter that seems to be unrelated to sex discrimination, makes it very difficult, perhaps impossible, for him to argue that his dismissal was by reason of any protected act under the 1975 Act. But let it be assumed that that is not the case. The Employment Tribunal did deal with sex discrimination separately and they dealt with it in their paragraphs 28 to 31 inclusive. In paragraph 28 they simply set out the whole of Section 4(1) of the 1975 Act and it is not suggested that they set it out wrongly. The tribunal therefore had the whole of the relevant provisions of the statute plainly in front of them. In paragraph 29 the tribunal begins by first saying that 4(1)(a) and 4(1)(b) are not of relevance and that is not disputed. Their reasons for regarding them as not of relevance might be a little confused, but it is common ground that 4(1)(a) and (b) are irrelevant. At to 4(10(c) they say:

"29 … Mr Vogler has not said that anything has been done under or by reference to the Act in relation to the BDA and therefore section 4(1)(c) cannot apply."

Well, that fails to notice that a protected act can be something done by Mr Vogler not just in relation to the BDA but "in relation to any other person". Whilst that is an oversight, it does not seem to us to lead anywhere, because the only things in fact arguably done by Mr Vogler in relation to a person other than the BDA were the allegations of contravention of the 1975 Act by others that would fall, in any event, within 4(1)(d). The tribunal did recognise that 4(1)(d) was relevant. It would perhaps be as well if we read the whole of paragraphs 30 and 31:

"30 Mr Vogler complains that Dr Quarrell and Dr Blair had complaints at the time of his dismissal. The evidence before the Tribunal is that at the time of Mr Vogler's dismissal those complaints related to alleged victimisation on the grounds of the trade union representative activities of those dentists. There is no suggestion or evidence that when Mr Vogler was dismissed the complaints of those two dentists were in any way complaints of sex discrimination. It is only in the last three months that Dr Quarrell has made a complaint under the Sex Discrimination Act. That is after the date of Mr Vogler's dismissal and after the date of presentation of his Originating Application. In addition, Mr Vogler was only acting as a representative and none of the matters of which complaint is made by Dr Quarrell and Dr Blair relate to Mr Vogler.

31 It is the unanimous decision of the Tribunal that Mr Vogler's complaint of sex discrimination by way of victimisation is wholly misconceived and it is our unanimous decision that his complaint is dismissed."

11. The topic of sex discrimination is concluded paragraph 31. It can only be read as on the basis that it was the matter in paragraph 30 that occasioned the result in paragraph 31. There is no other reason that appears independently in paragraph 31. So the question is, so far it is a question of law, can the matters set out in paragraph 30 justify the conclusion in paragraph 31? The opening sentence shows that on Mr Vogler's own case the allegations of a contravention of the Act which were asserted by him were allegations by him made in the framework of complaints by Dr Quarrell and Dr Blair, the allegations being that it was the Glasgow NHS Trust, i.e., any other person than the BDA, that had contravened the 1975 Act. If causation was possibly to be determined in his favour, then he would also need to have shown as a fourth ingredient that such allegations had been made before 3rd June 1998 or at least before his dismissal on 3rd June 1998. No case seems to have been made as to a suspicion that he would make allegations or a knowledge that he intended to make allegations. The case seems to have depended simply on the alleged making of allegations of contravention of the 1975 Act.
12. But that formulation by Mr Vogler was not accepted by the tribunal. They held that as at the 3rd June 1998 Dr Quarrell's and Dr Blair's complaints were not allegations of sex discrimination but complaints as to trade union activity and they held that there was no evidence that by 3rd June 1998 the Quarrel and Blair allegations made by or on their behalf by Mr Vogler were as to sex discrimination. We do not have the Chairman's Notes of Evidence. There has been no request for them, as we have mentioned. We cannot assume that after cross-examination or after oral evidence from others, the Employment Tribunal simply accepted all that Mr Vogler had said in his witness statements and indeed, as I have mentioned, we have not even got his witness statements. We cannot assume that the tribunal accepted the version of allegations raised by Mr Vogler in his particulars; particulars are not evidence. It looks as if at the hearing Mr Vogler had concentrated on the Quarrel and Blair complaints as being the allegations he had made and if he did do that (and we have no reason to think he did not) then he plainly failed on the evidence. Mr Hart complains in particular of the passage that we have cited:

"30 …In addition, Mr Vogler was only acting as a representative and none of the matters of which complaint is made by Dr Quarrell and Dr Blair relate to Mr Vogler."

It is undoubtedly confusing and confused. But that is not to say that it is entirely without weight. It easy enough to postulate a circumstance where an employer dismisses a person because of a protected act but where the protected act did not directly concern the employer. One can imagine the case of an employer Company (1) who employs Mr X and Company (2) which employs his friend Mr Y. Company (1) dismisses Mr X. On behalf of Mr X, Mr Y as X's friend and X's representative, alleges to Company (1) that Company (1)'s dismissal of X was because X had earlier done a protected act. Company (2) then dismisses Mr Y because he had espoused Mr X's cause and had made allegations against Company (1). Even though Y had acted only as a representative, his case could fall within 4(1)(d). When Mr Y then takes Company (2) to the Employment Tribunal there would have been no prior allegation that the discriminator Company (2) had contravened the Act but rather that another person Company (1) had done so, and that could suffice as a protected act upon which Mr Y could rely against Company (2). It would be immaterial that X's complaint against Company (1) espoused by Mr Y had not related in any way to Mr Y or to Company (2). But that is not to say that facts that a person has acted only in a representative capacity in making an allegation or that the allegation principally related to someone other than the respondent, are insignificant. At a factual level and recognising broadly what prompts people to act or to act badly, when a causal link between the prior protected act and the less favourable treatment said to have been generated by it falls to be considered, it is surely not at all unlikely to be more difficult to infer that link where only a representative capacity or only the activity of a third party is in issue. Would not the employer in many cases be less likely to treat, say, an employed solicitor, barrister, friend or adviser making a complaint less favourably by reason of allegations which a person makes if the employer could see that the person concerned had only been acting for another and, perhaps, merely doing his job. Equally, would not an employer in many cases be less likely to visit a protected act with, say, a dismissal, if the allegations in the protected act were not against him but only against some third party. Indeed, a point touched on in the papers but not at seems thoroughly ventilated at the Employment Tribunal hearing, may it not be the case that, where an allegation is made by an employee on his employer's writing paper and as part of his duties to that employer, that an allegation which he makes in the course of that employment is not to be regarded as by him but, perhaps, by his employer? If that were the case here, it would surely be that the person claiming to have been victimised, Mr Vogler, would not be the person who had made the allegation relied on as the protected act and section 4(1)(d) would never have arisen at all. We will leave that aside because, although it seems to have been touched on, it was never formally ruled on by the tribunal.

13. If that last passage which we have referred to as being criticised by Mr Hart, namely:

"… In addition, Mr Vogler was only acting as a representative and none of the matters of which complaint is made by Dr Quarrell and Dr Blair relate to Mr Vogler."

had been the only matter relied upon by the tribunal for its conclusion we would have seen considerable force in this being a case which needed to be remitted. However, as we see it, the preceding part of the tribunal's paragraph 30, referring to the absence of evidence of the complaints that were made on or before 3rd June 1998 being complaints of sex discrimination, is a ground which suffices on its own. In paragraph 31 it is said by the tribunal that Mr Vogler's complaint was wholly misconceived. That does not necessarily mean misconceived only in point of construction of the 1975 Act. If, as they did, they held that there was no evidence whatsoever of an allegation that fell within section 4(1)(d) they were entitled to describe Mr Vogler's case as misconceived even though it was a somewhat inflammatory description of his case. Nor did they need to go on to deal with whatever difficulties were in Mr Vogler's path in relation to what knowledge Mr Hunt did or did not have, either consciously or unconsciously.

14. We have no material on which to conclude that the tribunal's conclusion that there was no protected act is in any way unjustified. There is some reason in the papers to suppose that Mr Vogler, who represented himself below, had not pressed questions as to sex discrimination. But, leaving that aside, we have no material to suppose that the tribunal's conclusion that there was no evidence of any material allegations, allegations made by Mr Vogler falling within 4(1)(d) or being activity of a kind falling within 4(1)(c), was unsupported by evidence. We mention again that there was no request for Chairman's notes and we mention again that particulars are not evidence.
15. We have had heard Miss O'Rourke in a short and powerful argument in support of the conclusion that the Employment Tribunal reached. She emphasises the passage in paragraph 30 that says:

"The evidence before the Tribunal is that at the time of Mr Vogler's dismissal those complaints related to alleged victimisation on the grounds of the trade union representative activities of those dentists."

and, also she emphasises the passage:

"There is no suggestion or evidence that when Mr Vogler was dismissed the complaints of those two dentists were in any way complaints of sex discrimination."

It seems to us that those are the two passages on which to concentrate. We have no reason to think that they were without foundation and accordingly we must dismiss the appeal.

[Miss O'Rourke, on behalf of the BDA, makes an application for costs against Mr Vogler]

16. Miss O'Rourke, we make no order as to costs.