At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE ELIAS
MS J DRAKE
MR B V FITZGERALD MBE
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | MR S CRAMSIE (Of Counsel) (On Pro Bono Basis) |
For the Respondent | MR P COPPELL (Of Counsel) Instructed by: The Treasury Solicitor Queen Anne's Chambers 28 Broadway London SW1H 9JS |
MR JUSTICE ELIAS
"I confirm that the Applicant complains of racial discrimination contrary to the Race Relations Act."
Paragraph 2 set out various protected disclosures and paragraph 4 set out the incidents of harassment etc complained of, identifying the occasions when it was alleged that the relevant officers who had subjected her to harassment had done so, and what it was that they had done. Paragraph 5 set out the detriment suffered by the Applicant as a result of the failure by the Respondent to meet its legal obligations. It was as follows:
"5 The detriments suffered by the Applicant as a result of the Respondent's failure to meet a legal obligation, i.e. to pay attention to the Health and Safety of the Applicant and to deal with presumed racist victimisation are as follows:
(1) Having had to undergo continued anxiety, demoralisation and feat.
(2) Having been segregated at work (unlike colleagues).
(3) Having been refused renewal of contract in circumstances which are presumed to have remained unchanged since previous renewals - except that the Applicant had entered a written complaint.
(4) Having been refused promotion (after passing all the tests associated with recruitment to Prison Officer Grade) - allegedly because of failures to integrate in a team (where harassment and prejudice operated) and also because of health grounds which were not referred to - although known about - until the letter of refusal of promotion was sent"
"Subject to one matter which recently came to light, the facts pleaded are substantially the same in respect of
i. Protected Disclosure, and
ii. (RRA Section 2) Victimisation.
If there is a case on merit based on the EPA (as amended) (that is a reference to the provisions in the Employment Rights Act) then there would one based on the RRA Section 2."
The Striking Out Decision
"The Respondent failed to deal with harassment based on racial discrimination against the Applicant."
He said that the focus of the Originating Application had been on the failure of the Respondent to take up and resolve the harassment complaints, and that it did not in terms indicate that the Appellant was complaining directly about the incidents which gave rise to the harassment and which was set out in paragraph 4 of the further and better particulars. We consider that that is too narrow an analysis of this documentation.
We now turn to the second appeal. In order to deal with this we need briefly to set out the legislative material. Section 43B(1)(b) and (d) of the Employment Rights Act 1996 are as follows:
"(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,
(d) that the health or safety of any individual has been, is being or is likely to be endangered,"
"[47B Protected disclosures
(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure."
"4. We do find, however, that on the Applicant's evidence as heard this morning, none of the disclosures made tended to show any of the matters set out in section 43B of the Employment Rights Act 1996. We have looked very carefully at the Applicant's statement and we have looked at out notes of her oral evidence given today. At page 7 of her letter of 12 June to Mrs Field, she states "I feel under constant pressure and stress awaiting the next incident". That is not a statement which tends to show that her health or safety has been, is being or is likely to be endangered. At no time did the Applicant say anything to a manager which would tend to show that there had been a breach by the Respondent of the Race Relations Act.
5. Finally, we considered whether the Applicant's disclosures or any of them tended to show a failure by the Respondent to comply with any of its legal obligations. We find that they did not. Almost every day in almost every workplace employees complain to managers of their treatment by other employees, often with good reason. Indeed, what has been revealed here appears to have been a hotbed of malice and petty spitefulness. It cannot possibly be the case, however, that each complaint tends to show a failure by the employer to comply with a legal obligation. The legal requirement on the part of an employer not to breach trust and confidence between employer and employee is not broken by an employer every time one employee behaves badly to another. It cannot be within the compass of the statutory provisions contained in sections 43B an d47B of the Employment Rights Act that every time there is bad behaviour by one person to another on works premises, the aggrieved employee may complain of it and then obtain the protection of the statute.
6. We do not consider that the wording of section 43B of the Employment Rights Act in any event allows Tribunals to look at disclosures collectively. Each one must be looked at individually and none of these complaints made by the Applicant to her managers was such that it tended to show a failure to comply with the implied term of trust and confidence which must exist in every contract of employment.