United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR K McNERNEY (Legal Officer) Royal College of Nursing Legal Department Raven House 81 Clarendon Road Leeds LS2 9PJ


 


JUDGE J ALTMAN

1. This is an appeal from the decision of the Employment Tribunal held at Liverpool on 7, 8 and 9 May 2002 and it comes before us by way of preliminary hearing to determine if there are grounds in law that can properly be argued in full before the Employment Appeal Tribunal.
2. The Appellant Applicant complained of unlawful discrimination on grounds of both sex and her race. Her employer was the second Respondent Guy Pilkington Memorial Home Limited. They were contracted to the first Respondents, the Merseyside Fire and Civil Defence Authority and in the course of her employment with the second Respondents and in pursuance of their contract with the first Respondents the Applicant worked at the premises of the first Respondents as an occupational health nurse working to a large extent with firemen.
3. There was a strike of firemen during the course of her employment and arising out of her application, it appears, for a management post with the first Respondents. It is unnecessary to spell out the facts behind that but it appears that during the course of the strike the Applicant was subjected to what was described as follows by the Chairman in the decision:

"There was adverse comment in the Press about her relationship with (the Assistant Chief Fire Officer and Director of Human Resources). A website was started which published offensive and on occasion obscene material about him and the applicant. Some of the comment was racist."

4. Accordingly on the face of it, it appears that the Applicant was on the receiving end of both sexual and racial abuse. In consequence she declined to work with the fire officers, a position with which this Tribunal wholly sympathises. She was as a result unable to give support to Dr Jones who worked at the site and what then happened was that the second Respondents spoke with the Applicant. The Tribunal found that she was told that if she refused to do her job at the fire headquarters the second Respondents would have to terminate her contract. The Employment Tribunal found:

"She said that she quite understood their position. They talked about possible future contracts between her and the hospital. She said she had in any case been looking for other contracts and was considering work with another firm."

5. As a result of what followed, which was the consequent dismissal of the Applicant, she brought proceedings before the Employment Tribunal and set out in her Originating Application the nature of her complaints. Against the first Respondents complaint was made of sex and race discrimination because of their allowing the abuse to which I have referred being on an unofficial website for firemen and on an official website run by the first Respondents. Against the second Respondents the complaint was restricted to the allegation that the dismissal was "because she had complained to the MFS and Fairfield about the racially and sexually discriminatory comments".
6. At the outset of the hearing before the Tribunal the complaints against the first Respondents were withdrawn. We do not know the reason but it may have been related to the issue as to whether or not there was an employment relationship between those parties. As a result, the party who was alleged to be the main cause of her experience in the sense that the complaint was that all this abuse went on without intervention as a result of which she felt driven to refuse to work, presented the second Respondents with a considerable dilemma. But this conduct of the first Respondent was a matter for which the Applicant in the event had no redress against them.
7. Accordingly the Tribunal then had to consider the complaint that the reason for dismissal was the racially and sexually discriminatory comments in the dismissal by the second Respondents who were the only parties by then. In the decision which is terse to the point of being almost but not quite impenetrable the Tribunal found as follows:

"5.(a) The second respondents terminated the applicant's contract of employment. Did they do so because she protested against the racist and sexist abuse to which she had been subject? They did not. They were not personally motivated by disapproval of her protest; on the contrary. But, more importantly, her particular protest was not, as a matter of fact, the efficient cause of their termination of her contract. (Pausing there for a moment we suspect that what was meant was effective cause) The cause that led without interruption to it was her refusal to work. That refusal was largely conditioned by racial and sexual insult. But the result would have been the same if it had been otherwise conditioned. All that she had to do for the second respondents she was refusing to do. That and only that accounted for their treatment of her."

8. Mr McNerney contends in relation to the essence of this appeal that the Tribunal there applied the wrong legal test. He says that they used the wrong comparator but more importantly he says that they looked at the narrow legal question of causation in reality and asked themselves what he would describe as a 'but for' question: "But for the conduct of the Applicant would she still have been dismissed?" Reference was made to Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830. In that case where the Police Authority declined to give a reference because of an outstanding Tribunal case it was argued to have been discrimination on racial grounds because that was the reason why the proceedings had began. However, the main reference is to the general approach as identified by the House of Lords and reference was made to the head note in which Lord Nicholls is reported as finding that:

"The phrase "by reason that" does not raise a question of causation as that expression is usually understood. The test is the subjective one of why did the alleged discriminator act as he did? What consciously or unconsciously was his reason?"

And the speech of Lord Hoffmann is summarised in the head note:

"Whether the Applicant was treated less favourably "by reason that" he had brought proceedings raised a question of causation: was the fact that he brought proceedings a reason why he was treated less favourably. It is not enough to say that but for the protected act the applicant would not have been treated in the way he was."

9. The point being made there is that for an applicant to succeed in an allegation of race discrimination it is not sufficient for him to establish that 'but for' the protected act he would not have been treated as he was. Applying that approach to the case here it seems to us what would be said was that it would be not enough for the Applicant to show that but for the fact that she had complained of racist comments and refused to work for that reason she would not have been dismissed. In other words it seems to us there is a distinction drawn by the Tribunal which does not appear in the comparable situation in Khan between the background motivation of the Applicant's refusal to work being the complaint of race discrimination and the refusal to work itself.
10. Lord Hoffmann goes on:

"A test which is likely in most cases to give the right answer is to ask whether the employer would have refused the request if the litigation had been concluded, whatever the outcome."

It is difficult to translate that to the facts of the case before us but it does seem to us to permit a Tribunal when asking what the subjective reason is of the employer to say to themselves: 'Well how would the employer have acted 'but for' the existence of the litigation? We were referred to the speech of Lord Nicholls at paragraph 29 where he said:

"Contrary to views sometimes stated, the third ingredient ('by reason that') does not raise a question of causation as that expression is usually understood. Causation is a slippery word, but normally it is used to describe a legal exercise. … , a causation exercise of this type is not required. The phrases 'on racial grounds' and 'by reason that' denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact."

11. The Tribunal in this case therefore had to ask themselves: What was the employer's reason for dismissal? Why did the employer dismiss? What consciously or unconsciously was his reason? Lord Hoffmann at paragraph 49 says:

"The purpose of the statute is that a person should not be victimised because he has done the protected act. It seems to me no answer to say that he would equally have been victimised if he had done some other act and that doing such an act should therefore be attributed to the hypothetical 'other persons' with whom the person victimised is being compared. Otherwise the employer could escape liability by showing that his regular practice was to victimise anyone who did a class of act which included but was not confined to the protected act."

12. Whilst the language of the Chairman in the decision in this case is a little confusing when first examined, because it does appear to purport to use traditional expressions of causation as opposed to specifically setting out the subjective ones, it is important, it seems to us, to look at the general tenor of the findings. The findings of fact in paragraph 5(h), referring to the conversation which I have quoted, show that the Applicant was told that if she refused to do her job her contract would be terminated and that she said that she understood their position. It is only then, on that basis of fact, that the Tribunal go on then to ask themselves the question, following the termination of contract, whether the Respondents terminated employment because the Applicant protested against the racist and sexist abuse to which she had been subject. The Employment Tribunal then answer that question briefly in three words 'they did not' and they go on to say:

"They were not personally motivated by disapproval of her protest; on the contrary. But, more importantly, particular protest was not as a matter of fact the effective cause of their termination of her contract. The cause that led without interruption to it was her refusal to work. … that and only that accounted for their treatment of her."

13. In other words it seems to us the Employment Tribunal is clearly directing itself as to the factual reasons that the employer had at the time. It seems to us that whilst the language is perhaps a little inelegant it is clear that the Employment Tribunal were directing their minds to the true reason for the employer acting as the employer did and in so doing they rejected the proposition that it was by reason of any sexual or racist abuse and therefore by reason of any victimisation.
14. Reverting to the very narrow issue that was raised before the Tribunal in the Originating Application it seems to us that in reality we must look at what was actually going on in the Tribunal and not what theoretical arguments or other arguments might have been raised then or could be raised as it were with hindsight. The simple issue proposed by the Originating Application was whether the dismissal was done because of the complaint to the first Respondents about racial and sexual discriminatory comments or whether it was done for a refusal to work. There may be cases in which the two are wrapped up together but that was not the factual situation as we understand it here, and as found by the Employment Tribunal.
15. Mr McNerney goes on to complain that even when looking at what was in the employer's mind the Tribunal fell into error by approaching that question by asking themselves whether the situation would have been different if there had been no complaint about race or sex which led to no refusal to work or if there had been a complaint about race and sex and no refusal. But Lord Hoffmann, it seems to us, in the passage that we quoted invites the Tribunal effectively to do just that. There is a world of difference, it seems to us, in the position of the employer and the position of the Tribunal. The Tribunal should not confine itself to legal tests of causation and ask themselves whether an applicant can succeed merely by showing that but for a particular element a result would not have followed.
16. When the Tribunal itself comes to the exercise of trying to establish what was in the mind of the employer in order to test out the thinking of the employer one of the ways may well be for the Tribunal to ask itself: 'Well, what otherwise would the employer have done?' and they asked other questions. As an exercise in factual analysis it seems to us the Tribunal are not shut out from asking a particular question in testing what is in an employer's mind by some legalistic strait-jacket which prevents a broad analysis by the Tribunal of the facts before them. They are the fact finding body and they must be permitted to make their findings of fact. This is a different exercise from applying a legal test to the facts as found by them. That legal test is not one of simple causation.
17. Accordingly, we find that there was no error in the way in which the Tribunal approached the question because we reject the construction put before us by Mr McNerney that the Tribunal adopted a 'but for' approach and a 'strict causation' approach even though we sympathise and understand that one can be led into that sort of construction when looking at some of the words used in the decision we have analysed.
18. The next matter that is complained of essentially is that the Tribunal found that the result would have been the same if the reason for refusing to work had not been conditioned by the Applicant being the victim of racial and sexual insult. The complaint is that there was no factual basis for that conclusion and the Tribunal did not give its reasons. However it seems to us that that is "the flip side" as it were for their other reasons. They have found that the reason was the refusal to work and in a sense it follows from that, and that the factual evidence must be the same, that it would have been the same whatever the background reasoning. In other words the Employment Tribunal were rejecting and did reject the Originating Application that the reason for dismissal was because the Applicant had raised complaints with the first Respondents.
19. Other matters are raised in the grounds of appeal in which the Tribunal is criticised for failing to draw an inference of discrimination effectively against the second Respondents, being vicariously responsible for the accusations, for failing to deal with the accusations that the Applicant made about the abuse itself. However it is properly conceded that that is a difficult argument to address against the second Respondents in the light of the Originating Application and it seems to us that those are all points not taken in the Tribunal below and therefore not capable of being taken here. There was also an appeal on the ground of incomplete disclosure of evidence but, for the same reason, the point not being complained of below it seems to us it cannot be taken here.
20. Finally, there was an assertion that it was perverse of the Tribunal to come to the conclusion that the termination was not by reason of victimisation but that again cannot stand in the face of the dismissal of the earlier grounds. In the Tribunal this matter proceeded on a very narrow factual issue and the Employment Tribunal determined that factual issue against the Applicant. It does not seem to us that there is any arguable point of law that arises from it when one reads carefully the way the Tribunal approached the matter.
21. We would only add one word. It is not of course a purpose of the decision of the Employment Tribunal to make the task of an appellate Tribunal easier and the fact that we may have found considerable difficulty in identifying and analysing the decision of this Tribunal because of the very condensed way in which it is expressed cannot in itself, of course, be any matter of complaint. However the parties spent three days before an Employment Tribunal arguing a case in a situation where clearly the Applicant has been placed in the most awful situation in relation to her work and in which the parties are placed in a terrible dilemma when the source of her discomfort is not from her true employers but from an environment where they are contracted to provide her to work. In such a situation we can understand that there must be an underlying sense of grievance if the thoughts and reasoning of the Tribunal are encapsulated in such a condensed document as is in this case.
22. The great tradition of Employment Tribunals is to enable the parties to have a full and clear understanding of the findings and thought processes of the Employment Tribunal set out in a way that makes them readily understandable to the man in the street. We can well understand, if it be the case, that that aspiration was not accomplished by the decision in this case. That however is simply a matter of observation. The essential issue is that in the absence of an arguable point of law this appeal must be dismissed at this stage.