United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr Erskine Grant Representative Northern Complainant Aid Fund Checkpoint 45 Westgate Bradford BD1 2TH
For the First Respondent For the Second Respondent	Mrs Rollins-Elliott 73 Merlin Crescent Edgware Middx HA8 6JB No appearance or representation by or on behalf of the Second Respondent


 


MR COMMISSIONER HOWELL QC:

1. By her amended Notice of Appeal lodged pursuant to the directions of the Appeal Tribunal on the preliminary hearing on 10 March 2000 and explained in the judgment of His Honour Judge Collins given on that date, Mrs Jasbeer Rooproy contends that the decision of the London North Employment Tribunal set out in Extended Reasons sent to the parties on 12 October 1999, rejecting her complaints of racial discrimination by way of victimisation, was erroneous and must be set aside as the Tribunal misdirected themselves as to the relevant law.
2. For the reasons given below, we allow the appeal on that ground, set aside the decision of the Tribunal, substitute our own decision that the Respondents did unlawfully discriminate against her in the one respect we shall identify, and remit the case to the Tribunal to consider and determine what, if any, compensation or other remedy is due to her as a result.
3. The background to the Tribunal proceedings may be shortly summarised from the Tribunal's findings of fact in paragraph 9 of their Extended Reasons. The Second Respondent, Manor House Hospitals Ltd (which has now gone into liquidation and played no part in the appeal proceedings before us) ran the Manor House Hospital in Golders Green for many years, until it closed it down on 31 March 1999.
4. The First Respondent, Mrs Rollins-Elliott was the Matron of the hospital in the period immediately prior to its closure. Apart from a few administrative staff, all the staff employed at the hospital were made redundant in the period leading up to its closure: some 45 - 50 of the 60 nursing staff were made redundant in February 1999 and all the rest, including the Appellant Mrs Rooproy and Mrs Rollins-Elliott herself, were made redundant on 31 March 1999.
5. In the negotiations which took place in regard to the redundancies it was agreed with the trade unions representing the nursing staff that each nurse would be provided with an open reference before she left, and Mrs Rollins-Elliott was the person responsible for writing these references. The Appellant, who was a Senior Night Sister at the hospital, had been involved in employment difficulties between her and the other Senior Night Sister during the last two years of her employment which led to her initiating a grievance under the hospital's grievance procedure in 1998, and to her presenting complaints of racial discrimination to the Employment Tribunal, naming as Respondents both the Respondents to this present appeal.
6. Following a hearing spread over several days in March 1999 the Tribunal upheld one complaint of less favourable treatment in relation to the hospital's grievance procedure in 1998, but rejected the Appellant's other complaints as they were out of time. That decision was however not issued until 15 June 1999, so that although the Tribunal hearings had been completed shortly before 31 March 1999 when the hospital closed down, the proceedings were still pending at that date and the outcome was uncertain.
7. March 1999 was of course a difficult time for both Mrs Rooproy and Mrs Rollins-Elliott, with the impending closure of the hospital and the loss of their employment; made more difficult by the fact that Mrs Rooproy's mother had died so that she had to go out to Malaysia to attend the funeral in February, and Mrs Rollins-Elliott's own mother had also recently died. Both of them were away from the hospital in the latter part of March 1999, so as to use up outstanding leave entitlements which they would otherwise have lost. Before going away, they had of course both been involved in the hearings of Mrs Rooproy's proceedings before the Employment Tribunal, which had taken place from 15 to 19 March.
8. When Mrs Rollins-Elliott went on leave following the hearing, she had prepared the open references for all the other nursing staff who would be remaining in the Second Respondent's employment until the final closure on 31 March 1999. Only Mrs Rooproy's remained to be prepared: and in general terms it is quite understandable that Mrs Rollins-Elliott would have deferred doing this while they both remained involved in the tribunal hearings.
9. On the morning of 30 March 1999, the Appellant went to the hospital to collect her P45 and her reference, but found that the reference was not ready and Mrs Rollins-Elliott was still away. After what appears to have been a rather angry conversation between Mrs Rooproy and Mr Taylor the Managing Director at the hospital, Mrs Rollins-Elliott came in specially from her leave in the afternoon of the same day to prepare the Appellant's reference. She had obviously been concerned about what she should include in it in the circumstances and had taken informal advice from a solicitor friend. As a result of that, she believed that she was under a duty to make a mention of the still unresolved Tribunal proceedings in the reference she was preparing, and did so. The terms of the reference itself are set out in paragraph 9(9) of the Tribunal's Extended Reasons and it is not necessary to refer to them in detail, beyond confirming that it included the sentence:

"We are currently awaiting the outcome of an Employment Tribunal at which she alleged racial discrimination against her by Manor House Hospital and myself";

and noting the Tribunal's finding of fact that:

"It is accepted by all the parties that the terms of this reference are barer and less glowing than those in one given in February 1999 to Nurse Jayerajah, another senior ward sister, who was made redundant at that time, having fewer years of service, fewer academic qualifications and having had 202 days of sick leave on three occasions in the last two years."

The terms of Mrs Rooproy's reference were shown by Mrs Rollins-Elliott to Mr Taylor on the same day, 30 March 1999, and thereupon approved or at any rate acquiesced in by him and posted to the Appellant's home address, though it was not in fact received there by her until 4 April 1999, that is after her employment had come to an end.

10. As recorded in paragraph 9(12) of the Tribunal's Extended Reasons, in March and early April the Appellant contacted three nursing employment agencies with a view to seeking employment. They told her that there were many jobs available for which her qualifications and experience suited her but that she would have to provide a reference from her former employers. The Applicant did not forward the reference dated 30 March 1999, because she considered it unfair and did not want it to be on record with any of her prospective employers as she thought it would jeopardise her chances of obtaining employment with them.
11. To complete the story, following correspondence between the Royal College of Nursing and the Respondent's solicitors, a further and more favourable reference was eventually provided for Mrs Rooproy on 7 June 1999 making no mention of her Tribunal proceedings; so that the adverse effect of what happened on 30 March 1999 has been limited in time, and the question of whether any actual loss from it can be demonstrated has yet to be assessed. However there remains an issue for us to determine on this appeal, whether what took place or rather did not take place by 30 or 31 March 1999 when the Appellant's employment came to an end (and she alone of all the nursing staff had not been provided with a satisfactory open reference in as favourable and unqualified terms as the others had) amounted to less favourable treatment of her by reason of her previous Tribunal proceedings, so as to constitute discrimination against her by way of victimisation within the terms of Section 2 Race Relations Act 1976; and whether the Tribunal correctly directed themselves on the law on that question in deciding the case against her.
12. Mr Grant, who appeared on behalf of Mrs Rooproy, made it clear that as this was a case brought only under the Race Relations Act 1976 she was not able to base her claim for discrimination by way of victimisation on any conduct of the Respondents after the termination of her employment on 31 March 1999, and in our judgment he was right so to concede in the light of the decision in Post Office v Adekeye [1997] ICR 110. Nevertheless Mr Grant submitted that even focusing entirely on the position down to and including 31 March 1999 it could be readily seen from the Tribunal's findings of fact that the failure to provide Mrs Rooproy with an equivalent reference to that provided to the other nursing staff before the termination of their employment, and the terms of the reference that the Respondents did draft on 30 March 1996 and send out to her, amounted to less favourable treatment of her than what had been done for the other nursing staff; and moreover that this less favourable treatment was directly attributable to the fact that she had brought her previous Tribunal proceedings.
13. In addition to the express reference to the Tribunal proceedings themselves and the "bareness" of the terms of the reference as found by the Tribunal in paragraph 9(9) of their Extended Reasons, Mr Grant drew our attention to the Respondent's own submission recorded in paragraph 11(iv):

" ... that as to the reference drawn up by Mrs Rollins-Elliott on 30 March, it must be borne in mind that it was drafted at a time when the outcome of the proceedings heard between 15 and 19 March was not yet known and so its wording was understandably guarded";

and to the Tribunal's own conclusions recorded in paragraphs 13 and 14 of their Extended Reasons that Mrs Rollins-Elliott had deliberately not drawn up a reference for the Appellant along with the other nursing staff in the early part of March because of the existence of her pending Tribunal proceedings and because Mrs Rollins-Elliott had decided to wait until those proceedings were over before drafting Mrs Rooproy's reference. Moreover this deferment had had the further effect that by the time she did come to draft the reference for Mrs Rooproy on the penultimate day of the hospital's existence, she did not have the Appellant's personal file available to her when compiling the reference because it had been filed away due to the closure of the hospital; so that she had had to rely on her memory alone and this was responsible for omissions which made the reference less favourable by underestimating Mrs Rooproy's length of service and so forth.

14. Given those findings, Mr Grant submitted, and we accept, that the only possible conclusions to which the Tribunal could have come were that in relation to the provision of her reference Mrs Rooproy had, if the matter stood to be looked at objectively, been treated less favourably than the other nursing staff; and that this less favourable treatment had been caused by, and had resulted directly from, the fact that she had brought her earlier Tribunal proceedings which are of course a protected act under Section 2(1)(a) Race Relations Act 1976. We consider that conclusions of fact to that effect are necessarily implicit in the Tribunal's statement of Extended Reasons: even though not spelt out expressly in view of the Tribunal's clear assumption that these were not the two crucial questions that decided the victimisation issue, but that they were instead required to determine that issue according to whether they were or were not satisfied that there was some racial motivation or desire to victimise the Appellant for having brought her previous proceedings.
15. Having considered the whole of the Tribunal's Extended Reasons in the context in which they were given, we think that it is unavoidable that the Tribunal did regard the question of motivation and a desire to victimise as the determinative issue in the case, since this was the way in which they expressed the conclusions on numerous occasions throughout paragraphs 12 - 18 of their Statement of Reasons, on which they stated they based their finding and determination in paragraphs 19 - 20 that the Appellant had not satisfied them that she had been victimised by either of the Respondents in relation to the provision of a reference on the termination of her employment. In particular, they said in paragraph 13 that:

"…..Our conclusion is that it was not by any conscious or unconscious desire to victimise Mrs Rooproy that the reference was not available for her to collect when she went to the hospital on the morning of 30 March";

in paragraph 14 that:

"14………We therefore accept that, in making the omissions, Mrs Rollins-Elliott did not do so, either consciously or subconsciously, with a view to victimising Mrs Rooproy.";

in paragraph 15 that:

"15……..Mrs Rollins-Elliott did not have the Applicant's file to hand when she was compiling the reference. It would, we think, have been better if she had had it but we hold that her failure to obtain it was not motivated, consciously or subconsciously, by any racial malice";

in paragraph 16 that the mention of the Tribunal proceedings:

"was not, in our view, inserted on account of any conscious or subconscious desire to victimise Mrs Rooproy";

and in paragraph 18 that:

"It is true that the [reference] she wrote was rather barer than the one she had written in February for Nurse Jayerajah (whose race was not disclosed to us but which we assume to be different from Mrs Rooproy's) but we accept her evidence that she was not consciously or unconsciously motivated by a desire to victimise the Applicant for having brought the previous proceedings. In the light of Mrs Rollins-Elliott's explanation, we hold that this is not a case where we should draw any inference of racial motivation against her and it follows that none should be drawn vicariously against the Second Respondent either."

16. Those extracts in our judgment demonstrate plainly that the Tribunal misdirected themselves by addressing the wrong question in determining whether the facts necessary to constitute discrimination by way of victimisation within Section 2 Race Relations Act 1976 had been established, and we accept Mr Grant's submissions that they thereby erred in law by failing to apply correctly the relevant two-part test for the purposes of Section 2, as laid down in the judgment of Lord Nicholls in Nagarajan v London Regional Transport [1999] IRLR 573 at 576 which they themselves quoted in paragraph 5 of their Extended Reasons, as follows:

"The key question under s.2 is the same as under s.1(1)(a): Why did the complainant receive less favourable treatment? The considerations mentioned above regarding direct discrimination under s.1(1)(a) are correspondingly appropriate under s.2. If the answer to this question is that the discriminator treated the person victimised less favourably by reason of his having done one of the acts ("protected acts") listed in s.2(1), the case falls within the section. It does so, even if the discriminator did not consciously realise that, for example, he was prejudiced because the job applicant had previously brought claims against him under the Act …….."

17. For those reasons we allow the appeal, set aside the decision of the Tribunal rejecting the Appellant's claim for discrimination by way of victimisation, and substitute our own decision that based on the Tribunal's findings of primary fact which are not in our judgment open to proper dispute, the two Respondents did each discriminate against Mrs Rooproy contrary to Sections 2(1)(a) and 4(2)(c) Race Relations Act 1976 in that by failing to provide her before the termination of her employment on 31 March 1999 with as favourable an open reference as was provided for the other comparable nursing staff in the ways above outlined, they treated the Appellant less favourably than the other nursing staff who had not brought Tribunal proceedings under the Act, and did so by reason of her having brought such proceedings. The Second Respondent thereby discriminated against her by reason of the acts or omissions of Mrs Rollins-Elliott, whose responsibility it was to prepare the references on its behalf, being attributed to it under Section 32(1) of the Act; and Mrs Rollins-Elliott herself is separately liable for her own acts amounting to discrimination, by virtue of Sections 33(1) and 33(2), with the consequence that the present proceedings were properly brought against each of them under Section 54(1).
18. That leaves the question of any appropriate remedy, which we remit for consideration by either the same or a differently constituted Tribunal in the light of such evidence as the parties wish to place before it as to the actual consequences flowing from the omission to provide an open reference comparable to that given to the other nursing staff before Mrs Rooproy's employment actually ended, and the less favourable terms in which the reference drafted on 30 March 1999 was in fact expressed.
19. It may assist the Tribunal (or the parties themselves if they wish to consider the possibility of a negotiated solution) as a starting point if we record our own views that on the material before us:

(i) any enquiry as to adverse financial consequences is necessarily limited to the period before 7 June 1999, when the more favourable reference in terms satisfactory to Mrs Rooproy was provided;

(ii) it will be necessary for her to produce evidence to demonstrate and supplement what is said in paragraph 9(12) of the Tribunal's Extended Reasons and establish what actually happened in terms of lost employment or opportunities she was actively seeking in this period; furthermore that

(iii) this does not appear to us to be a case where any very substantial award of general compensation needs to be considered, particularly against Mrs Rollins-Elliott personally, in view of the Tribunal's apparent and entirely proper acceptance on the evidence before it that she had acted throughout in good faith and not from any malicious or improper motive, and the fact that the action she took was only shown to have been contrary to the Race Relations Act by the subsequent House of Lords decision

20. The appeal is allowed and the case remitted accordingly.
__________________________