United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR ADAM SOLOMON (Of Counsel) Instructed by: Messrs Zermansky & Partners Solicitors 10 Butts Court Leeds LS1 5JS
For the Respondent	Mr M WEST Employment Consultant Peninsula Business Services Ltd Riverside New Bailey Street Manchester M3 5PB


 


LORD JOHNSTON

1. This is an appeal by the employee Appellant ("Mr C Singh") against the decision of the Employment Tribunal sitting in Leeds consequent upon an application made by him in relation to allegations of discrimination in terms of the Race Relations Act 1976 which claims were dismissed.
2. The background to the matter is that the Appellant worked for the Respondents who are an Employment Agency, in this particular case at the works of a company called Allsops. It would appear to be that the need for the number of workers at that particular site reduced and in due course the Appellant was told that his services were no longer required at that particular plant. He has complained in this respect to the Employment Tribunal as regards both racial discrimination and victimisation not least in relation to the selection process, that went on in relation to the removal of him from his job at that particular site.
3. It is not disputed between the parties that what occurred in fact on 4 January 2002 and subsequently very recently thereafter in relation to this matter constituted a protected act within the meaning of the legislation which I shall categorise as related to the question of selection. What thereafter appears to have happened that the Appellant contacted on a number of occasions various employees of Allsops to state his concern over his position and against that background, putting it quite generally, he was informed by his employers that there was a threat against him of court proceedings being taken by them by way of injunction in relation to this matter.
4. That is not disputed by either party to be effectively a detriment to his interests and this whole case before us is therefore predicated against the fact that there is at least one protected act. There were many questions which suggest that there might be more but one is sufficient and the detriment relates to that protected act. The issue therefore to be determined by us against the background of the Tribunal's decision as to whether in all the circumstances the decision of the Tribunal that there was no discrimination can stand the appropriate test in this Tribunal.
5. In this context therefore the important part of the Tribunal's decision is paragraphs 23 -25:

"23. On the basis of that guidance, the applicant was clearly treated less favourably than other employees who had not made any complaint. They were not subjected to the detriment of a threat of court proceedings of any sort. The applicant was so subjected and suffered the detriment. Thus, far, the applicant succeeds on two of the limbs of that complaint. However, and crucially, it is inherent in a complaint of victimisation that the less favourable has occurred "by reason that" there has been a protected act. The meaning of that phrase was recently reviewed by the House of Lords in Chief Constable of West Yorkshire Police -v- Khan [2001] IRLR 830. Although the facts of that case are obviously very different from the instant case, we can take some guidance from three of the judgments. Before doing so, we record that Mr Tucker submitted that the existence of a protected act must be a reason why the respondents treated the applicant as they did. It did not have to be the only reason. He suggested that it had to be a significant influence on the outcome. It had to be something that is a noteworthy factor. It seems to us, however, that those submissions do not accurately set out the effect of the decision in Khan. Lord Nichols indicated that the phrase "by reason that" does not raise a question of causation, as that expression is usually understood. The test is a subjective one; why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Although Lord Hoffman indicated that the phrase did raise a question of causation, he also indicated that the Tribunal should consider why the less favourable treatment had occurred. Lord Scott indicated that the language of section 2(1) is not the language of strict causation. The words "by reason that" suggest that it is the real reason , the core reason, the motive for the treatment complained or, that must be identified.

24. We take that last judgment to indicate that if, as appears here, there may be more than one potential reason for the alleged treatment, the Tribunal is required to identify the core reason. That does not seem to us to be dissimilar to the test of "the principal reason", as used frequently in the Employment Rights Act 1996 in respect of unfair dismissal.

25. In fact, on the evidence, we do not consider that there were here multiple reasons for the treatment. The reason consistently argued by the respondent for the accepted less favourable treatment was the wish to protect the commercial relationship with its client. Indeed, the applicant's own case, referring to the possibility of an injunction, points inexorably to that being the reason for that threat. By its nature, an injunction is specifically related to preventing a particular course of conduct. In the context of this matter, that conduct can only have been further contact between the applicant and Allsops. The only possible motive for obtaining an injunction would be to protect the commercial relationship. The obtaining of an injunction of the sort would not act as any realistic form of ill-treatment of the applicant in respect of the protected act. Even if a more mild form of words is accepted, that is that there would be a claim for damages in respect of lost business, again that points exclusively to the relationship between the First Respondent and Allsops. All three respondents were anxious to protect that very important relationship and made such threats as they did entirely for that reason. The real reason, the core reason, the motive for the treatment, was entirely the protection of the commercial relationship and not because any threat of race discrimination proceedings had been made. Those particular findings apply to the specific act of discrimination again alleged against the third respondent, Mr Tinsley, as they apply to the first and second respondents. Those specific complaints are therefore dismissed."

6. Against that background Mr Solomon of Counsel for the Appellant opened his submission by submitting against the factual basis of the Tribunal's decision that they either misunderstood or misinterpreted the evidence, particularly of Mr Tinsley, in respect of his attitude he had towards the fact that a number of contacts had been made to the employees of Allsops, having regard of his concerns for his own business, that is to say the Agency. Be that as it may we are satisfied that such complaints had been made or at least such contacts had been made and that the Tribunal were therefore entitled to approach the matter upon the basis that the question of discrimination had to be considered against a background where there were in existence a claim not yet constituted as an application for victimisation in the racial sense against the employer Respondent and also concerns by the employer Respondent for the commercial interests of their company in the context of this whole matter i.e. competing causes. We obviously will return to that.
7. The main challenge taken by Mr Solomon was that the Tribunal as a matter of law had confused the issues of commercial interests and the existence of the claim being made by the Appellant and it was impossible to segregate that out purely as a simple issue relating to commercial interests. If the Tribunal had properly understood the matter they should have recognised that the threat of an injunction was bound to impinge upon the claims being made by the Appellant as regard his own interests and therefore could not be said to be justifiable in the context of discrimination or any other attitude. The position was simply plainly unlawful.
8. In this respect he focussed particularly on the part of the Tribunal's decision relating to the questions of competing causes, as part of the quotation we have already made. In the final analysis his position was the matter had to be reheard because the Tribunal had confused these two issues and that of any view of the matter they have come far too narrow of the view of the position particularly as regard to the case quoted by the Tribunal in their own decision namely the Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830.
9. Mr West of Counsel for the Respondents maintained that the Tribunal had properly addressed the issue against the background of concerns for the commercial interests of his clients, both having regard to the effect that the continuing of existing contacts that had been made by Mr Singh might have and also the general commercial relationships that existed between the two companies. In essence, however, his position was that the issue involved a question of fact which their Tribunal had properly identified when they addressed their conclusions in paragraph 25.
10. In approaching this matter we have to say that the statement in that paragraph to the effect "that the only possible motive for obtaining an injunction would be to protect the commercial relationship" may in fact take the matter too far but we are prepared to approach the matter upon the basis that there were competing causes present at the very highest as to why the injunction would be sought, namely, on one view for which there is no positive evidence, the motive might be to obstruct Mr Singh's claims, the other being to protect the commercial interests of the company in general terms by reason of what had happened subsequent to the committing of the protected act.
11. It goes without saying that whether a protected act has been established and a detriment has been established are essential prerequisites to any claim. Nevertheless at the end of the day it must be shown that what is said to be the detriment is causally connected with the original protected act in some way or another. This is where the case of Khan becomes very important.
12. It also has to be borne in mind that this Tribunal will only interfere with decisions of the lower Tribunal on questions of fact, which the issue here undoubtedly is, where it can be shown that the Tribunal has misdirected itself in law or taken into account factors which it should not take into account or left out of account factors that it should have taken account. In this case in particular in paragraph 25 we are of the view that the Tribunal directed itself to the correct test and that they came to the conclusion that the motive for making the threat of court proceedings by way of injunction was related entirely to the commercial interests of the company and not directly related to the claim by Mr Singh. Whatever view we might have taken of the matter is nothing to the point. It is our clear view that that was a decision and a factual conclusion which the Tribunal were entitled to make and it is one therefore, that applying the usual rules of the industrial jury and the role of this Tribunal in that context, we will not interfere. In those circumstances the appeal is dismissed.