United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR W BROWN (Solicitor) Instructed by: Lewisham Law Centre Ltd 28 Deptford High Street London SE8 4AF
For the Respondent	MS I OMAMBALA (of Counsel) Instructed by: Messrs Osborne Clarke Solicitors Hillgate House 26 Old Bailey London EC4M 7HW


 


MR RECORDER LANGSTAFF QC

1. This appeal, from a decision of the Employment Tribunal at London (South), which was promulgated on 14 September 2000, raises questions, yet again, as to the desirability of a Tribunal determining an application to strike out a claim or to regard there as being no case to answer, part way through the proceedings.
2. It also emphasises, yet again, the desirability of a Tribunal taking time to identify with the parties, in clear and unmistakable terms, the issues which are going to be determinative of the applications before it.
3. By its decision, the Tribunal dismissed the Appellant's complaints that she had been discriminated against on the grounds of race, by her employer, that she had been victimised on the grounds of her race, by her employer, and that she had been unfairly dismissed, the dismissal being constructive, by her employer. It did however award her some sums in respect of a breach of contract, which is not otherwise material to this appeal.
4. The complaint made by the Appellant in person in her Originating Application was in respect of unfair dismissal, in particular by her Line Manager, one Ms Costa. It was not, however, limited to unfair treatment by her.
5. It extended in one short sentence, in paragraph 3, to an allegation that senior members of the Respondent's management had promised that steps would be taken to correct harm done allegedly by Ms Costa and that by the date of her resignation nothing had been done.
6. So far as racial discrimination is concerned, there was no obvious complaint of victimisation. The complaint appeared to be one of indirect discrimination.
7. When the matter came to the Tribunal it appears that the Tribunal began by considering whether or not to allow claims for direct discrimination and for victimisation to proceed. They decided to entertain such claims.
8. The Appellant gave evidence. She had prepared a witness statement which ran to some 126 paragraphs. That was before the Tribunal. For reasons which will become apparent, the Appellant queried, during the course of the proceedings leading up to this hearing today, whether the chair of the Tribunal, or the members, had actually read the statement. We are told by a letter of yesterday that he did so and we see absolutely no basis for going behind that assurance.
9. In addition, she gave some evidence. There is a complaint that she was not permitted to give evidence by reading out or by direct reference to her statement. There is a complaint that her husband, who acted as representative, was not allowed to ask any more than a few questions to elaborate her evidence in chief. That this happened is, essentially, common ground. However, in our view, nothing in this appeal turns upon it directly. In particular, it is constructively and sensibly recognised by Mr Brown, who appears for the Appellant, that a Tribunal is entitled, under Rule 9 of the Rules as they then were (the 1993 Rules were applicable at the time), in effect, to determine its own procedure. His concern was directed to that which had been a concern of the Appellant throughout, whether or not her case had been fully appreciated by the Tribunal.
10. The case, so far as it related to direct discrimination, had in support of it what was said in paragraphs 117-125 in the witness statement of the Appellant. That was evidence. It began under the heading 'Racial Discrimination'.
11. At paragraph 117 her statement asserted, as a general belief, that the Appellant's progress in employment as a representative of Pfizer had been hampered by racial considerations. She had reached a position of Executive Hospital Representative. She sought to go further. She was complaining, in essence, that she had not done so. This failure she attributed to the Respondents.
12. Her claim that it was due to the Respondent's discrimination was based upon the fact that, as she said in evidence, to gain promotion it was first necessary to secure managerial support. She noted, at paragraph 119, that by the date of the coming into effect of the resignation she had been unable to secure such managerial support. She set out reasons why she found that surprising and particularly disappointing.
13. At paragraph 121 she repeated that she had been unable to secure such support for her desire to become a senior hospital representative. She compared her position with that of someone who was white, who had had a faster progress towards seniority than she had.
14. She made other, more general references to a background in which, she argued, those who were white had advantage. Those who were from a minority ethnic community, as was she, were disadvantaged. That part of her written evidence was amplified when she gave oral evidence.
15. In the Chairman's notes of evidence she attributed her claim of discrimination to three matters; the first was when she had applied for the position of Assistant Public Relations Manager and she had been unsuccessful. That was December 1997.
16. The second was in September 1998 when she had applied for the post of District Sales Manager and had again been unsuccessful. But the third was in respect of something headed 'Development Plan' in the Chairman's notes: she was plainly complaining that she had not received a Personal Development Plan, or one to her satisfaction.
17. The significance of a Personal Development Plan is, it appears upon the basis on which she put her case, that this would identify whether or not she had the support of managers for promotion and would identify those matters of personal development necessary to make her fit for promotion.
18. In essence, she maintained that more than a mere application for a post was a prerequisite of obtaining the post; she had also, and first, to be in a position to apply. She would only be able to be in that position if the Personal Development Plan were in place and fulfilled.
19. She complained in those paragraphs of her written statement to which we have already referred of the absence of such a plan. She amplified that complaint in various other paragraphs. Suffice it to say that Counsel for the Respondent was unable, when pressed, to point to any unequivocal statement that she actually had a Personal Development Plan. Her evidence in the written statement was very much to the effect that she was complaining about not having one.
20. When it came to the close of her oral evidence in chief, before she was subject to any cross examination and before she was able or entitled to call any of the four witnesses whom she had lined up to support her claim, an application was made that the race discrimination claims should go no further. We describe it in that way because we are told by Ms Omambala that the application that she actually made was not quite that which the Tribunal recorded itself as acceding to.
21. She tells us that she made an application in relation to the acts of discrimination relied upon being out of time to the effect that there had been no evidence upon which those time limits might be extended. She told the Tribunal that in the Applicant's evidence none of the essential elements of discrimination had been made out.
22. Thus, whereas discrimination under section 1 of the Race Relation Act 1976 requires less favourable treatment of the Applicant than of others, whether actual or hypothetical, none had been identified.
23. She addressed the Tribunal that, so far as victimisation was concerned, section 2 of the Race Relation Act 1976 required that the Respondent should have discriminated against the Appellant by reason that the Respondent had done a number of protected acts, or that the Respondent knew that the Appellant intended to do, or suspected that the Appellant intended to do, any of them. There was, she had argued, no evidence of any protected act, nor had there been any evidence of any detriment in consequence of the commission of a protected act, or the intended or suspected commission of it.
24. What the Tribunal said was this:

10 "After Mrs Zishaan closed her case a submission of no case to answer was made on behalf of the Company in relation to her claim for race discrimination and victimisation. However, Mrs Zishaan led no evidence whatsoever on these two heads of claim. The evidence from her witness Mr Ajetunmobi was wholly irrelevant to these head of claim. As regards direct discrimination, the only jobs for which she had applied, were that of Professional Relations Manager in October 1997 and Sales Training Officer on the 8 May 1998. She failed to get any of these jobs and never complained that her rejection was on the ground of race. Even if the possibility of a claim for direct race discrimination existed in relation to these two jobs, they were well out of time. There was no evidence of any condition or requirement which disproportionately affected her and therefore a claim for indirect race discrimination could not succeed. Equally, there was no evidence of victimisation. This whole case was about constructive dismissal. Accordingly, we acceded to the submission and struck out Mrs Zishaan's claim for race discrimination and victimisation."

25. It will be apparent already, from what we have said, that the Tribunal were in error in describing the submission as having been made at the close of her case. It was not. It was not even made at the close of her evidence. It was made after she had given evidence in chief.
26. It will also be apparent that the submission is mis-described by the Tribunal. It will also be apparent, from our recitation of that which was before the Tribunal, both in terms of the written witness statement and also the oral evidence as recorded by the Chairman, that it was wrong to say that she had "led no evidence". Yet the Tribunal expressed itself in hyperbolic terms "no evidence whatsoever". In fact, Mrs Zishaan had led some evidence. The assessment of its force may be another matter.
27. Next, it will be apparent that any evaluation of the evidence from the witness, Mr Ajetunmobi was misplaced in any consideration the application to strike out. It could not be relevant for the very good reason that, at the time the application was made and accepted, that evidence had not been given. Although he, as other witnesses, had made a witness statement that witness statement was handed in only at the start of the evidence of the witness concerned. It was not, therefore, material before the Tribunal at the time that it heard the application.
28. Further, the implication of the next sentence is that the claim in respect of direct discrimination was limited to the application for and failure to obtain the two jobs identified. Nothing is said about the complaint in respect of the failure to provide a Personal Development Plan. This is despite the repeated reference to it in the witness statement, and despite the fact that when the Chairman made his notes in respect of the Appellant's evidence of discrimination, it is one of the three matters he recorded as being relied upon.
29. The suggestion that the two job applications were out of time is well-founded. Mr Brown, for the Appellant, does not suggest that these were relied upon as free-standing acts of discrimination. They were, rather, background.
30. But, the same could not be said in respect of the time point in relation to the allegation that the Appellant had not received a Personal Development Plan. Section 68(7) of the Race Relation Act 1976 says, so far as material, that for the purposes of determining the time when it happened:

68 (7)…

(c) "a deliberate omission shall be treated as done when the person in question decided upon it;

and in the absence of evidence establishing the contrary a person shall be taken for the purposes of this section to decide upon an omission when he does an act inconsistent with doing the omitted act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the omitted act if it was to be done."

31. That leaves it open as a matter of decision and judgment for a Tribunal when, at the latest, a Personal Development Plan should have been provided: the allegation was of an omission to provide one. There is no consideration of that time limit in paragraph 19 of the decision. Indeed, the implication is that this part of her claim, which was, we are told, the effective allegation of direct discrimination, was simply not considered by the Tribunal at all.
32. The Tribunal proceed, having dealt in the way we have described with the claim for direct discrimination, by dealing with indirect discrimination and victimisation. However, worryingly, the next sentence reads, "This whole case was about constructive dismissal". The reason that is worrying is that it occurs in the course of a paragraph which deems that there was no evidence upon which discrimination could be established. It would follow that there was no evidence which might carry with it an inference of discrimination.
33. As everyone knows, discrimination is rarely advertised as such by those who discriminate. Frequently a Tribunal may have a difficult judgment to make whether unreasonable treatment may justify an inference that it is unreasonable upon the grounds of race.
34. This Tribunal was at one and the same time as resolving the application made to it, in respect of the race discrimination claim, aware that no such application was being made in respect of the allegations of constructive dismissal. Yet, constructive dismissal can only be established if four conditions are satisfied.
35. The first is that the employer is in breach of contract toward the employee. The second is that breach is sufficiently serious to justify the employee in treating him or herself as discharged from further performance of his or her obligations as employee, in other words, that it is a repudiatory breach. The third is that in consequence of the repudiatory breach the employee resigns and, fourth, that the employee has not, before resigning, acted in such a way as to affirm the continued existence of the contract notwithstanding the breach, for instance, by delay. Necessarily, therefore, any claim of constructive dismissal must establish that there has been not only a breach but a breach to such a serious degree as to amount to a repudiatory breach.
36. There was, it would seem, a prima facie case that this was so in the case of the Appellant. It was subsequently to be dismissed for reasons which we shall have to deal but at the time of the application to strike out it seemed to have some potential force and called for an explanation.
37. We cannot see why acts which might be regarded as so serious a breach as to be repudiatory should at this stage of a case, at any rate, be categorised as relevant only to constructive dismissal and as irrelevant and providing no evidence of discrimination.
38. It will be apparent from what we have said thus far that we cannot sustain the reasoning of the Employment Tribunal as expressed in paragraph 19. It may be that the approach taken was a consequence of a lack of clarity in the Appellant's case as presented to the Tribunal. It cannot have helped the Tribunal that there were no clear particulars of the discrimination being alleged. It cannot have assisted that the claim of victimisation arose, if not at the hearing itself, then just before.
39. One, therefore, must have some sympathy with the Tribunal in dealing with the matter in the way that it did. Again, having, in effect, determined to go ahead and hear the claims of direct discrimination and victimisation, without resolving finally a challenge made to their jurisdiction to do so, by the Respondent at the outset, the Tribunal may have felt inclined to resolve those claims at an early stage in the hearing.
40. Nonetheless, we consider that the basis of the reasoning upon which the case against the Respondent was struck out, or regarded as insufficient to require and answer, in so far as it relied upon allegations of direct race discrimination. The Tribunal should have gone on, in our view, to hear and determine it.
41. This is not to say that a Tribunal may not, in an appropriate case, determine that a submission of no case to answer should be accepted. It is within the Rules open to a Tribunal to do so. But it is common ground between the parties before us that it is desirable that a Tribunal should do so only in the most exceptional of cases and where the situation is clear. This situation was neither exceptional nor clear.
42. We have next to deal with the question of whether or not the Tribunal was, in any event, plainly and unarguably right in reaching the conclusions that it did on any of the discrimination claims.
43. We will say nothing about the claim in respect of direct race discrimination. This, we think, is not a case in which we can say that the Tribunal were plainly and unarguably right. However, the only evidence which was before the Tribunal which was said to support the claim of victimisation was that which occurred in paragraph 55 of the Appellant's witness statement. That paragraph reads as follows, in a relation to a meeting of 23 April 1999 between the Appellant, her husband and John Young and Richard Gane (both Managers of the Respondent):

55 "My husband began by saying that he had discussed the matter with colleagues and that the first question always asked was whether there could be a racial element to all of this. John and Richard vigorously shook their heads as though it was impossible. My husband then said jokingly and dismissingly that he would reply to colleagues that Pfizer was an American outfit and it was "into faddish things like equal opportunities". John and Richard nodded along and were amused at the "faddish" comment."

44. There is no other matter which is relied upon by Mr Brown in evidence, either in this witness statement or in any other witness evidence, which he has told us was or might have been available to the Tribunal, which is capable of demonstrating a protected act.
45. The definition of a protected act, in section 2 of the Race Relation Act 1976, is that the alleged discriminator:

2 (1) "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…

(b) given evidence or information in connection with proceedings brought by any person against the discriminator…

(c) otherwise done anything under or by reference to this Act in relation to the discriminator…; or

(d) alleged that the discriminator…has committed an act which …amount to a contravention of this Act."

46. Pausing there, it is not suggested that any proceedings have been brought, any evidence given, anything done, or any allegation made. The claim is based on the words which follow, which read:

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

If this was a claim of victimisation it would be a claim based upon the Respondent suspecting that the Appellant intended to allege a contravention of the Race Relation Act 1976.

47. The evidence in support of that, that the Respondents had such a suspicion, is, on analysis, that the Appellant's husband reported what other people were saying. It is not suggested he endorsed it – far from it – as Mrs Omambala has submitted, he then disassociated himself and, in the context, the Appellant from it.
48. We cannot see that there is here any material which could possibly justify a Tribunal coming to a conclusion that there had been any protected act. We therefore cannot uphold this appeal in so far as it relates to victimisation.
49. We are happy to come to that conclusion in the light of the knowledge that, as it happens, victimisation would add nothing, save for a finding to that effect, to the damages award which the Appellant might otherwise receive in respect of direct discrimination because the detriment which she alleges she suffered and the less favourable treatment which she identifies, in respect of her claim for direct discrimination, is exactly that which she says was a consequence of the alleged victimisation, namely a failure to provide her with a Personal Development Plan in good, proper or reasonable time.
50. We are concerned whether or not the Tribunal were plainly and unarguably right as well in respect of the claim made for indirect discrimination. However, given our view that the Tribunal should not have proceeded when it did to determine that issue at that stage, knowing that evidence might be given which would cast a different light upon the claim of discrimination, conscious as we are that discrimination is defined as "discrimination" in section 1 of the Race Relation Act 1976 and only sub-divided by reason of the nature of the proof which is necessary in different circumstances to establish it into what is conventionally termed "direct" and "indirect" discrimination, we cannot conclude that this Tribunal was necessarily right to come to the conclusion it did in this respect. We think that the appropriate course is for the issue of discrimination to be remitted as a whole to the Employment Tribunal but, as we have indicated, with no issue of victimisation.
51. We are left, before we turn to the remedy which we propose, to deal with the balance of the case in respect of constructive unfair dismissal. This stands in a different category altogether because the Tribunal heard the entire case. It heard the witnesses and was in a position to assess them over a total of some 3 days of hearing.
52. It posed the questions, at paragraph 9, which we have already identified for ourselves as being the conditions which must be fulfilled if a claim for constructive dismissal is to succeed. We remind ourselves that the definition to which the Tribunal should have addressed itself, and in paragraph 9 did, is that contained in the Employment Rights Act 1996 at section 95, in which an employee is taken to be dismissed if:

95 (1) (c) "the employee terminates the contract under which she is employed (with or without notice) in circumstances in which she is entitled to terminate it without notice by reason of the employer's conduct."

53. Having posed those tests at paragraph 9 it appears to us that the Tribunal then answered those tests, first by setting out the evidence to which it was particularly attracted and then by summarising its conclusions in paragraph 18. Paragraph 18 reads as follows:

18 "We are satisfied that there was no fundamental breach of Mrs Zishaan's contract by the company. She quite naturally wanted to move on in her career and it is a pity that the relationship between her and Ms Costa broke down. Ms Costa did a lot to advance her career, but perhaps due to impatience on the part of Mrs Zishaan she did not appreciate how much was being done for her. Once she had been on secondment she did not want to return to territory especially when the job to which she was seconded became vacant. She did not seem to understand the importance of the launch of Viagra and seemed to feel that whatever the circumstance the company should put her career development first. She resigned from her job to take up position with another company. It is our judgment that Mrs Zishaan was not constructively dismissed."

54. We are invited by Ms Omambala to take the view that here the Tribunal were not only assessing whether there had been a breach and if so what the nature of the breach was, but in one sentence (the second last in the paragraph), drawing a conclusion about the reason for her resignation.
55. Given the way in which paragraph 9 is expressed and followed structurally within the decision by paragraph 18 we think she is right so to submit. The sentence, therefore, is a finding of fact which binds us, unless we are satisfied that it is a conclusion which could not be properly reached, or was reached by some improper procedure.
56. We regard it as binding upon us. We are told by Ms Omambala that it was an issue between the parties why it was that the Appellant had resigned. The Respondent's case was that she did so to take up another job. Mr Brown does not controvert that assertion. There is evidence within the Chairman's notes that the question of termination was explored during the course of the Applicant's evidence.
57. Accordingly, we think that there was evidence here upon which the Tribunal was entitled to rely, to come to the conclusion that the reason that the Appellant resigned was not by reason of any breach toward her by her employers but was because she wished to take up another job.
58. We are further supported in that view by noting that if she had resigned in response, as she claimed, to the continued failure by the Respondent to provide her with a Personal Development Plan, one might have expected there to be some incident or last straw which brought matters to a head. Yet, in her witness statement she recites, at paragraph 103 & 104 the three most recent incidents prior to her resignation. All of those appear to be incidents in which one or other managers, on behalf of her employer, were commending her, praising her or being positive.
59. It is not for us to evaluate that evidence. We do not do so, but we do consider that it is evidence upon which this Tribunal was entitled to rely, to come to the conclusion which it expressed, though tersely, in that one sentence. If that was, as we regard it, a finding of fact, then the various other criticisms which might be made in respect of the approach of the Tribunal toward constructive dismissal fall away.
60. Mr Brown has argued that the focus of the Tribunal was on events before 23 April 1999 and he said it should have been upon events thereafter and the continued failure to provide the Personal Development Plan.
61. However justified or not that complaint might be, it is a complaint which goes to the conclusion of the Tribunal in respect of whether there was a breach, and if so whether to categorise it as being sufficiently serious to justify resignation. It does not and cannot go to the issue of why it was that the Appellant resigned. Accordingly, we do not feel it necessary on this appeal to determine those particular grounds.
62. We should add that, although the Notice of Appeal raises matters in relation to the conduct of the hearing, at grounds 2-5, Mr Brown accepted before us that those were subsidiary to the substantial points in respect of race discrimination and constructive dismissal, which he wished to and did make, in support of grounds 6, 7 & 8. Therefore, apart from what we have already said about the way in which a Tribunal should be free to resolve its own procedure within reason, and to emphasise that it cannot and should not be criticised for adopting a case management approach in which a statement is taken as read and amplified only slightly in evidence by an Applicant or Respondent, we should comment no further.
63. It may be that the process of a Tribunal reading a statement privately is misunderstood by an Applicant as being a failure to take on board the Applicant's case. It would be a thousand pities if, worried that that might be the situation, Tribunals were not to take the approach of active case management which, in particular, the new Rules endorse.
64. It follows that we have concluded that, insofar as the appeal relates to the conduct of the hearing, there is no force in those allegations.
65. It follows that, insofar as the appeal relates to the substance of the claim for constructive unfair dismissal, it too should be dismissed on the basis of the finding of fact that we have identified.
66. However, insofar as it relates to discrimination, with the exception only of the claim in respect of victimisation, the matter should be remitted to a Tribunal.
67. We would urge, though we have no power to direct, that that Tribunal might think it appropriate to hold a Directions Hearing. We would hope that at that Directions Hearing there would be a clear agreement reached as to the legal and the principal factual issues to be determined at a subsequent hearing. In respect to one or more of the aspects of the claim consideration any also be given to subsequent costs, though that is a matter entirely for the Tribunal. But we think that whatever Tribunal hears the matter it should be a freshly constituted Tribunal.
68. To that extent this appeal is allowed.