United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS NICOLA BRAGANZA (of Counsel) Instructed by: Messrs Atkins Hope Solicitors 74-78 North End Croydon CR9 1SD
For the Respondent	MR DRJEN BASU Instructed by: London Borough of Lambeth Legal Services Room 21 Lambeth Town Hall London SW2 1RW


 


MR RECORDER UNDERHILL QC

1. The facts giving rise to this case and to this appeal can be summarised as follows:

(1) The Appellant, who is a woman of Nigerian origin, was employed by the Respondents as a Housing Officer between May 1992 and 11 April 1999.

(2) In December 1996 there was an incident in which she alleged that a colleague, Mr Jones, made a racist comment directed at her. The matter was investigated and Mr Jones was told to apologise. He did so. She believed that the apology was inadequate, but the Respondents decided otherwise and the matter was taken no further at that time. Although the term 'harassment' is perhaps inappropriate for a single incident we will refer to this for convenience as "the 1996 harassment complaint".

(3) On 25 August 1998 the Appellant went off sick with depression. She remained away from work for over five months, returning on 15 February 1999; but even on her return she was far from recovered.

(4) On 6 October 1998, while she was off sick, the Appellant made an informal complaint to her manager Mr Ebbett, who was visiting her at home as part of the Respondents' sickness procedure, of conduct by her colleagues in the months leading up to her going off sick, which she said amounted to sexual discrimination. It apparently took the form of some kind of sexual harassment.

(5) She repeated those allegations by way of a formal complaint on 20 January 1999 and also complained of what she regarded as the unsatisfactory resolution of the 1996 harassment complaint. We refer to her complaints about sexual harassment in the earlier part of 1998 as "the 1998 harassment complaints".

(6) Following her return to work she had a meeting on 25 February 1999 with Mr Bascombe who had been appointed to investigate both sets of complaints. She was extremely distressed at the meeting. It is plain that she had by no means recovered from her depression. Because of the difficulty in dealing with the matter in the context of the meeting she was asked to supply details of her complaints in writing, which she did sometime early in March.

(7) In the meantime she was finding her return to work extremely difficult as a result of her continuing ill health. On 12 March 1999 she submitted a letter of resignation giving four weeks' notice.

(8) Two days later she sought to withdraw her resignation, but the Respondents were not prepared to allow her to do so and her employment was treated as having expired at the end of her notice period.

That is the essential factual background.

2. On 12 April 1999 the Appellant brought proceedings in the Employment Tribunal. The local branch of UNISON was named as her representative. Box 1 on the Originating Application identified her claim simply as one for unfair dismissal. Box 10 gave the details of her complaint. The broad case there advanced was that it was unreasonable of the Respondents in all the circumstances to hold her to a resignation which they knew, or ought to have known, was made when she was under great stress. There was a reference to the 1996 harassment complaint by way of "background" (so described), and there was also a reference to the ongoing investigation of both her complaints as being a reason why it was unreasonable of the Respondents to hold her to her resignation. But neither of the harassment complaints were advanced as a claim in their own right.
3. In subsequent correspondence, to which we will refer in more detail below, the Appellant sought to amend her Originating Application to introduce claims of racial and sexual discrimination and of victimisation. At the commencement of the hearing before the Tribunal on 4 October 1999 the Appellant was permitted to amend her claim in these respects, but only as regards discrimination after August 1998.
4. The precise meaning and effect of what the Tribunal decided will be considered below, but, in essence, it went on to uphold the Appellant's claim for unfair dismissal but to dismiss her claims under the Sex Discrimination Act 1975 and the Race Relation Act 1976 to the extent that they had been permitted to proceed.
5. The Appellant appeals on two distinct decisions by the Tribunal. First, she appeals against the refusal to allow her to amend in order to allege discrimination prior to August 1998, i.e. in effect to claim in respect of the 1996 and 1998 harassment complaints. Secondly, she appeals against the dismissal of that part of her discrimination and victimisation claims that had been allowed to proceed. We consider these two appeals in turn.

A The Amendment Appeal

6. It is convenient to start by setting out in full the relevant paragraphs of the Employment Tribunal's Reasons dealing with the amendment application:

2 "At the commencement of the hearing the Applicant sought to amend or clarify her Originating Application to include complaints of race and sex discrimination and victimisation from 1996 to the present day. The Applicant had informed both the Tribunal and the Respondent of the intention to seek leave to amend the Originating Application to include the claim of sex and race discrimination and victimisation on 13 August 1999.

3 After listening to representations from both parties, the Tribunal concluded that the Respondent was fully aware of the Applicant's allegations of race discrimination and had been since 6 October 1998 and indeed an investigation had been undertaken by the Respondent into the allegations that the Respondent would not suffer prejudice in its ability to represent itself and answer the allegations, if the amendment to the Originating Application was permitted. The Respondents knew or ought to have known that the reference to 'harassment' in the Originating Application referred to the allegations of discrimination that had been made by the Applicant to them. This decision did not determine the time points issue, which the Tribunal would decide at the end of the hearing.

4 The Tribunal did not permit an allegation of discrimination in 1996 or allegations of discrimination from the period 1996 to August 1998 to be included in the amended Originating Application. Allegations of discrimination which post-dated the termination of the Applicant's employment and the lodging of the IT1 were not permitted to be included by the Tribunal: fresh proceedings would need to be brought for these allegations if the Applicant wished to pursue them.

5 Following the amendment the Respondent sought a postponement of the hearing, which the Applicant opposed. After retiring and considering the representations of both sides, the Tribunal concluded the case would proceed, but the Respondent be allowed any extra time for preparation necessary following the conclusion of the Applicant's evidence in chief and indeed that of her witnesses. It was apparent that the case would exceed the two days for which it was listed and there would be, of necessity, a postponement of at least part of the hearing which would provide the Respondent with additional preparation time.

6 The Respondent sought their costs, as they considered the conduct of the Applicant was vexatious or otherwise unreasonable in seeking a later amendment to the Originating Application. The Tribunal decided to order costs as the Applicant's conduct did amount to unreasonableness or vexatiousness and the Tribunal considered there was in any event no additional work incurred through the request for amendment having been made at the time when it was. The Respondent's only concern was the lateness of the amendment sought and this did not involve them in any additional work."

7. Unfortunately those paragraphs are far from clear and it is necessary to set out some background history as regards how the claim had been put up to 4 October 1999:

(1) As already noted, the claim was originally formulated as a pure unfair dismissal claim, with the harassment claims being referred to only by way of background.

(2) On 9 August 1999 the Appellant wrote to the Tribunal in the following terms:

"I am writing to request for an amendment for further claims in the above case. The amendment should include the following:

(1) A claim for unfair dismissal / constructive dismissal

(2) The amendments to include further claims of race discrimination and sex discrimination

(3) A further claim of victimisation under section 2 of the Race Relation Act 1976.

I look forward to hearing from you."

On 13 August 1999 a letter in very similar terms was sent to the Tribunal from the Lambeth branch of UNISON as her representative. Neither of the letters states what the acts of discrimination or victimisation relied on are. They were certainly wholly inadequate to raise any claim in respect of the 1996 and 1998 harassment complaints. Insofar as they could have been understood at all by the Tribunal or by the Respondents, it could only have been as putting different labels on the facts already alleged in the Originating Application. These applications were, it appears, dismissed by the Tribunal without a hearing, by letter dated 1 September 1999, though we have not seen that letter.

(3) On 29 September 1999 – that is, four days before the hearing – Mr Rogers of UNISON wrote a much fuller letter applying for permission to amend the application:

"to include a complaint of victimisation contrary to s4(2)(c) of the Race Relation Act 1976 read with s2(1)(d) of that Act."

The nature of the victimisation is not identified, but the obvious inference was that the Appellant wished to say that the reason why her request to withdraw her resignation was refused was that she had raised the 1996 and 1998 harassment complaints with the Respondent. The application is, on any view, only a request in relation to victimisation and only in relation to racial (as opposed to sex) discrimination. Various points were made in support of that request. We need not set them out in full here.

(4) The Respondents made it clear that that application would be opposed and that if persisted in it should be raised before the Tribunal at the start of the forthcoming hearing.

(5) At the beginning of the hearing, Mr Rogers for the Appellant submitted a manuscript draft of the amendment that he wished to make. Most regrettably, no-one made a copy of that document and the original apparently cannot now be found in the Employment Tribunal's file. The Tribunal does not, as we have seen, explicitly state what the application was. We accordingly do not know precisely what Mr Rogers was seeking. It is clear that his application went beyond the letter of 29 September in that he wished to claim that the Respondents' decision not to allow the Appellant to withdraw her resignation not only constituted victimisation but was itself taken directly on grounds of race or sex, and, as noted above, the amendment in that regard was allowed. However, it seems that he sought also to revive the 1996 and 1998 harassment complaints themselves in their own right, i.e. not simply as background to the unfair dismissal claim or as the subject matter of the complaints which constituted protected acts for the purpose of the victimisation claim. That such an application was made can be inferred from paragraph 2 of the Extended Reasons and in the first sentence of paragraph 4: it is possible that there was some confusion as to precisely what Mr Rogers was asking for, but it seems to us that the only natural reading of those two paragraphs is that a formal application to include the 1996 and 1998 harassment complaints was expressly made and was refused.

8. That constitutes the background against which it is necessary to analyse the effect of paragraphs 2-6 of the Extended Reasons, and in particular paragraphs 3-4. They are on any view unsatisfactory. They do not, as we have already observed, set out the precise terms of the amendment sought. They do not refer to the refusal by the Tribunal of the applications on 13 August. They do not refer to the letter of 29 September. There are other deficiencies to which we will return shortly. Nevertheless, if read in the context of the rest of the decision there can be no real doubt about what the Tribunal was deciding. It was deciding that the Appellant could complain that the refusal to allow her to withdraw her resignation should be characterised not only as unfair dismissal but also as race or sex discrimination or victimisation. It was also, it appears, deciding that she could complain that the Respondents were dilatory in dealing with her complaint first made, albeit informally, in October 1998 and that that delay too constituted sex or race discrimination or victimisation. This much is apparent from paragraphs 8 and 9 of the reasons where the Tribunal sets out what the issues are in the light of the amendment, and from paragraph 53 where it sets out the Appellant's submissions.
9. All those allegations were of course out of time as at 4 October 1999. That is the "time point" to which the Tribunal refers at the end of paragraph 3. The course which the Tribunal was adopting was to allow the amendment without prejudice to the question whether the Respondent had a defence to the claims so admitted on the basis that they were out of time: that would be decided as a substantive issue rather than on the application to amend itself. That is a legitimate course: it enables the Tribunal to decide any issues as to, for example, whether an act complained of was continuing, or under the 'just and equitable' exception, once it has heard the full evidence. In the event, the time point never fell to be considered because the Tribunal held that the claims failed on their merits. That is why the Tribunal, having said in paragraph 3 that the issues would be decided at the end of the hearing, in the event did not do so.
10. That however was the full extent of the amendment permitted. The Tribunal refused the Appellant's apparent application to be allowed to claim in respect of the 1996 and 1998 harassments themselves.
11. Ms Braganza, who appears for the Appellant and has made her points succinctly and clearly, appeared in her Skeleton Argument to challenge that analysis of what the Tribunal decided but it is now clear that she accepts it. Her point however is that the Tribunal failed to give any reasons for its refusal of the Appellant's application to be allowed to introduce the 1996 and 1998 harassment complaints. She relies of course on the principle, most commonly referred to as stated by Bingham LJ in Meek v City of Birmingham District Council [1987] IRLR 250, that a party is entitled to know why he or she has won or lost and that a decision which fails adequately to give such reasons is bad in law. That in principle must apply to interlocutory decisions, and to decisions on particular issues within a larger case, as much as to final decisions, although in the nature of things less elaborate reasons will generally suffice.
12. In our view Ms Braganza must be right that the Tribunal gives no reasons for its refusal of the application to amend in these respects. However, it does not follow that the appeal must be allowed. It is well established that the Tribunal, in the exercise of its powers under section 35 (1) of the Employment Tribunals Act 1996, can dismiss an appeal notwithstanding an error of law by the Employment Tribunal if it is satisfied that the decision of the Employment Tribunal was right. The authority to this effect most frequently cited is Dobie v Burns International Security Services (UK) Ltd [1984] ICR 812. It is of course also well established that those powers must be used sparingly and not in circumstances where to do so would involve the Appeal Tribunal deciding issues of fact or other issues which are more appropriately matters for the Employment Tribunal. In such a case the only proper course is remission. We have been referred to no authority as to how those principles apply in the special case where an error of law consists of a failure to give reasons, but we can see no reason why the underlying position should be any different. It cannot be right that in every case the only possible remedy for a failure to give reasons is a remission to the Tribunal.
13. Although the point is taken for granted rather than expressly addressed, this was the approach adopted by Knox J in this Tribunal in Independent Research Services Ltd v Catterall [1993] ICR 1. In that case it was held that an Employment Tribunal had failed to give any reasons for excluding certain without prejudice correspondence from the evidence before it: that was an error of law, but the Appeal Tribunal proceeded itself to consider the substance of the matter "and see whether we agree with the result that the Chairman arrived at" (see at page 5 (c) – (e)). Ms Braganza submitted that that case was of no real application in circumstances like the present because the Tribunal there was concerned with a pure point of law rather than with the exercise, as here, of a discretion, namely the discretion whether to allow leave to amend; but we do not see that that can make a difference in principle.
14. In the present case we believe, first, that it is in fact reasonably apparent, albeit unstated, what the Tribunal's reasons for its decision were and, secondly, that those reasons were entirely legitimate and, we would believe, correct. The essential features in the situation facing the Tribunal on 4 October can be summarised as follows:

(1) The 1996 and 1998 harassment complaints had occurred, in the case of the former, three years previously and, in the case of the latter, over a year previously. They were therefore, on any view, stale. They were also formally out of time since the 1996 harassment complaint concerned a one-off incident, and even if the 1998 complaints comprised a continuing act, that act could not have continued beyond the time that the Appellant went off sick.

(2) Although the complaints had been raised with the Respondents by way of internal grievance, they had not been raised in the litigation as separate complaints notwithstanding two previous applications to amend. Indeed they were being raised for the first time on the morning of the hearing. Following on from that: –

(3) Most importantly, if the 1996 and 1998 harassment complaints had been allowed to proceed, entirely new factual areas would have had to be explored and new witnesses approached. It would have been necessary for the Respondents to interview and perhaps to call all those primarily involved in the 1996 and 1998 episodes. It is impossible to know how much work this would have involved, but on any view of the matter it radically changed the scope of the matters that would fall for decision in the hearing. It is one thing for those complaints to be part of the case as background, or as the subject matter of a protected act; it is quite another for them to be investigated by the Tribunal as complaints in their own right.

15. Those considerations are considerations which would inevitably have occurred to any Tribunal in the circumstances of this case and we have no doubt that they comprised the reasons why the Tribunal did not believe that it would be fair to allow the claim to be amended in the relevant respects.
16. Ms Braganza has submitted to us that the Appellant's mental state over the period culminating in the application has to be taken into account. There is in fact nothing in the material before us to suggest that this was urged on the Tribunal. In any event, notwithstanding the fact that as we of course accept the Appellant was suffering from a serious and debilitating depression. She had been able to launch the original unfair dismissal proceedings and to authorise the previous attempted amendments, and it is hard to see why, if she was in a position to raise those claims, she was not equally in a position to raise the underlying harassment complaints if that was what she had wished to do.
17. If we had been in the position of the Tribunal we have no doubt that we would have reached the same decision as the Tribunal for essentially those reasons.
18. Ms Braganza points out that the difficulty with this analysis lies in paragraph 3 of the Extended Reasons and to a lesser extent in paragraph 5. Those passages appear to suggest that the Tribunal considered precisely those points and rejected them: the Tribunal pointed out that the Respondent was already aware of the complaints from 6 October 1998 and would not therefore be prejudiced by their being raised late; also that any problem about extra preparation time being required could be met by the fact that, as was then apparent, the time allotted was insufficient and there would have to be a subsequent hearing, as eventually took place on 30 November and 1 December 1999.
19. That point is well taken. Paragraph 3 and paragraph 5 do indeed say those things. But it is in fact apparent that it cannot have been the Tribunal's intention to rely on those considerations in relation to the amendment in respect of the 1996 and 1998 harassment complaints. If it was, it is inconceivable that it could have reached the decision that it did. Nor does the point that extra preparation time was available in the anticipated adjournment have any application to the situation in which the Respondents would have found themselves had they been facing for the first time allegations based on what had occurred in 1996 and 1998. It is clear that the Appellant was due to give her evidence first, dismissal being in issue; and it would have been necessary for the Respondents to cross-examine her on the first, or at most the second, day on the subject matter of both of those two complaints. The Tribunal cannot possibly have thought, and we are sure did not think, that the Respondents would have been in a position to be prepared for such a cross examination there and then. It is clear to us that the reference to preparation was merely to further thinking time in relation to submissions that might have to be made at the conclusion of the hearing. It is in fact apparent that in paragraph 3 and paragraph 5 the Tribunal was concerned to explain why the Respondents were not prejudiced by the introduction of the post-1998 case. Although the considerations expressed could superficially be taken to apply to the pre-1998 allegations, the entire structure of paragraphs 3 and 4 is clearly that paragraph 3 is addressed to the part of the amendment that was to be admitted and paragraph 4 to the part that was to be rejected.
20. We are thus on this appeal able to fill the gap left by the Tribunal in failing to give an explicit statement of what were its reasons for refusing the application to amend in relation to the 1996 and 1998 harassment complaints. The reasons which we give both are what we believe were the Tribunal's reasons and in any event justify the decision which the Tribunal took. We emphasise that such an exercise would not be possible in every case; but we are satisfied that it is both possible and just in this case. We are comforted by the conclusion that this approach accords with the injunction with Mummery LJ in Bache v Essex County Council [2000] IRLR 251 that the remedy of remission for a rehearing should not automatically follow and that it is important, so far of course as justice permits, to observe some proportionality.

B The Comparator Issue

21. The Appellant's essential complaints were that the Respondents' decision not to allow her to withdraw her resignation was taken on grounds of race or on grounds of sex and so constituted direct discrimination under section 1 of the 1975 or 1976 Acts; or was taken by reason of her previous complaints, which constituted protected acts, and so constituted victimisation within the meaning of sections 4 and 2 of the 1975 and 1976 Acts respectively.
22. The Tribunal dealt with those complaints as follows:

60 The Tribunal first considered whether the Applicant had been less favourably treated by the Respondent than employees who were not or Nigerian origin, the racial grounds relied on by the Applicant. The Tribunal reminded itself that a comparison with a person of a different racial group must be such that the relevant circumstances in the one case are the same, or not materially different, in the other. There was no actual comparator: the Tribunal was looking for an employee who had been off for five months with a long-term illness who is not of Nigerian origin and who had not been permitted to withdraw his or her resignation. In relation to the victimisation part of the claim, any actual comparator would need to have not performed a protected act. The racial origin of a comparator in the victimisation claim would not be relevant.

61 The Tribunal found that there is no evidence either direct or by inference, that the Applicant has been less favourably treated than a hypothetical comparator would be in the treatment of her resignation. The Tribunal consider that given the Respondent's concern about long-term sickness, any employee who had been absent from work for five months who then tendered their resignation, would have been treated in the same manner. The resignation would have been treated at face value and the Council would not have agreed to the resignation having been retracted. The Tribunal does not consider that the Applicant has been able to discharge the burden of proof required to establish (whether by direct evidence or inference) that Respondent or their officers were motivated either consciously or subconsciously by the Applicant's gender, ethnic origin, nor the fact that she had performed protected acts – either under the SDA or RRA.

62 Neither did the Tribunal consider that the Applicant had been treated less favourably than someone of a different gender, racial origin or someone who had performed a protected act under either the SDA or RRA, or both, in relation to the manner in which her complaint was investigated. It is unfortunate that Richard Bascombe was not appointed to investigate the Applicant's complaint until some two weeks after the Applicant had hand delivered her complaint. However, the Tribunal's conclusion is that the Applicant has not been able to establish, on the balance or probabilities that she was treated differently to those who had not made a complaint of race discrimination, or sex discrimination, or than a man would have been, or someone of a different racial origin to that of the Applicant.

63 Accordingly, the Tribunal finds that the Applicant's claims of sex and race discrimination and victimisation are not well founded."

23. Ms Braganza submits that in those passages the Tribunal erred in law by characterising the "hypothetical comparator" as someone with "a long-term illness" (see the formulation in paragraph 60). She submits that that is too loose a formulation and that the Tribunal should have considered the case of a hypothetical comparator suffering from a serious clinical depression. She submits that if the question had been formulated in that way the Tribunal might have reached a different decision.
24. We cannot agree that the Tribunal's formulation involved any error of law. We do not see how the precise nature of the Appellant's illness on the facts of this case was a "material" or "relevant" circumstance, to use the words of section 5 (3) of the 1975 Act and section 3 (4) of the 1976 Act. We cannot see, and Ms Braganza has not been able to suggest, any reason for supposing that the Tribunal's consideration of the decision whether a white or non-Nigerian person would have been treated differently might have been affected, if the comparison had been formulated in the way that she proposes.
25. Ms Braganza argues that the fact that the Appellant's illness took the form of depression was fundamentally important in this case: it was the reason why the Tribunal found, exceptionally, that the Respondents had acted unreasonably in taking her resignation at face value. But that is a wholly different question from whether it was material in deciding whether she had been less favourably treated on the grounds of the race or her sex, or by reason of any protected act. We cannot see that it was, and accordingly this appeal must be dismissed.