At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)
MR P DAWSON OBE
MR D J HODGKINS CB
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | MR M McCLUGGAGE (of Counsel) Instructed by: Messrs Lees Lloyd Whitley Solicitors Castle Chambers 43 Castle Street Liverpool L2 9TJ |
For the Respondent | MR P COPPEL (of Counsel) Instructed by: The Treasury Solicitor Queen Anne's Chambers 28 Broadway London SW1H 9JS |
THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)
"Sir,
I am writing to you about a matter which is causing me increasing concern and stress affecting my work and private life.
For what is now the third time I find myself having to defend my name from totally unjustifiable racial allegations, and I feel the time has now come to bring this matter to your attention as the usual avenues appear to me to be unsatisfactory."
He then set facts from his point of view in relation to accusations which he alleged to be wholly unfounded, that had been made against him by black or mixed race prisoners, alleging that he had discriminated against them on racial grounds, and denying those facts and alleging that he had not been properly dealt with by the authorities who, on his case, had been too favourable towards the, as he saw it, unjustified complaints by the prisoners. His memo ended as follows, each page being headed up "Allegations of Racial Nature":
"I am beginning to feel that there is a "Get Rubery" conspiracy on the wing, although I have no idea why I should be singled out.
I am writing to you therefore to ask that this matter be dealt with once and for all. A clear message must be sent to those of a malicious nature that the Race Relations Policy is in place to ensure equality of treatment and opportunity for all, not as an ace up the sleeve for those of an ethnic or religious minority with a grudge.
If you are unable to deal with this problem then I must regrettably inform you that I may then be obliged to use the full extent of the Race Relations procedures and beyond in order to seek public redress to restore my good name."
He sent copies of that memorandum, as was made clear at the bottom of it, to the Governor, to whom the memorandum was addressed, the Deputy Governor, Prison Office Slattery, who, as we understand it, was his direct superior, Senior Officer Plumb, who was named in the memo as having been supportive of him, and the POA, the Prison Officers Association. The response to that memorandum, the Tribunal found, was to transfer him to lesser duties, duties which he had in fact done some time before, and from which he had been transferred into his then present job, and he saw this, and indeed the Tribunal so found, as effectively a de-grading of his position. It was in respect of that that he claimed race discrimination.
"(viii) ….. The Tribunal accepted that the applicant wanted the position to be investigated and inmates at the prison made aware that the complaints procedure was not to be used to satisfy a personal grudge. He was hoping for a quick investigation but most importantly hoping to be exonerated. He also wanted the respondents to convey a message to prisoners that they should not make baseless allegations. There is, critically, however, an indication that the applicant might pursue his complaint elsewhere if he is not satisfied with the outcome."
We specifically refer to that last sentence. The next sub-paragraph begins:
"(ix) Almost immediately the applicant is transferred from his fixed post on "cleaners" back to correspondence duties."
"not satisfied on the evidence that this was an operational move, entailing the transfer of a number of officers …. In any event this job on correspondence was a job that the applicant in his long employment with the Prison Service had done previously. The respondents did not even attempt to suggest that this could be viewed as part of the applicant's career progression nor did they suggest that there was anything in the applicant's previous employment history that indicated a need for further training on his part in correspondence duties."
"A person ("the discriminator") discriminates against another person ("the person victimised") in any circumstances relevant for the purposes of any provision of this Act if he 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 - …..
(c) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person; or
(d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act."
Section 4 relates to the particular unlawful discrimination to be relied upon, and sets out in sub-paragraph (2):
"It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee - ….
(b) in the way he affords him access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or
(c) by dismissing him, or subjecting him to any other detriment."
The Tribunal referred to a number of authorities, including King -v- Great Britain China Centre [1991] 1RLR 513, and Nagajaran -v- London Regional Transport [1999] IRLR 573 and Chief Constable of West Yorkshire -v- Khan [2001] IRLR 830.
(1) The Transfer of the Appellant was because he had sent the memo. We quote from paragraph 22 of the Decision:
"Clearly P O Slattery transferred the applicant because he had had the temerity to send his memorandum"
(2) Such transfer was a detriment. The Tribunal did not come to the conclusion that the transfer came within the provisions of section 4(2)(b); they concluded that it would be unduly stretching the language to bring it within that provision, but they plainly concluded that it was a detriment, within section 4(2)(c), and their findings at paragraph 18 are:
"The Tribunal was prepared to find that this amounted to a detriment because both the applicant and to a certain extent the respondents accepted that this was a step backwards in the applicant's career progression."
They also found that this was less favourable treatment, in the sense that they concluded, as we have indicated, that it was because he had complained and thus was treated less favourably than an officer who had not put in a memorandum. There is no cross-appeal in respect of those findings.
"The Respondent maintains that the writing of that memo cannot properly be characterised as something "done …..under or by reference to the Race Relations Act". "
It is asserted in the answer that further grounds/findings of the Tribunal, which would be fully particularised in the Respondent's Skeleton Argument, might be relied upon further by way of cross appeal, but that has not been pursued. It can be seen that the cross-appeal was relatively exiguous, and it has to depend upon a conclusion that the Tribunal was perverse in arriving at the conclusion it did. Mr Coppel fairly accepted that the cross-appeal was not a strong one, and left it, as he put it, for the Tribunal to consider in the peace of its room, if it thought there was anything in it. We do not think there is anything in it. The finding that the Tribunal erred in this regard would require a conclusion that no reasonable Tribunal could have concluded that the sending of the memo was an act done under or in reference to the Act, when its contents are, as we conclude, clear, both by virtue of the context of the letter and its heading and the nature of the complaint, but in particular by virtue of the last paragraph of the letter, which we have quoted. Consequently, it cannot be said that it was perverse of the Tribunal to reach the conclusion that it was a protected act in the circumstances; but it is a long way from the conclusion that it was not perverse for the Tribunal to reach the conclusion that it was a protected act, to reach the opposite conclusion, namely that no reasonable Tribunal could have done other than find that it was a protected act; and those on the face of it, are the boundaries of the argument that has ranged before us. But it is not at all a clear conclusion by this Tribunal, as we will now indicate.
"Had the applicant taken a protected act? The Tribunal although with some hesitancy it has to be said, concluded that the memorandum could just bring itself within the meaning of section 2(1)(c)."
It can be seen that the words used are "could just", we conclude that the word "just" is there to show that it may have been a near run thing, and although the words "could just bring itself" are used, it is not intended simply to refer to the potentiality of such a conclusion, but rather to amount to an actual conclusion; because it is quite clear that the Tribunal has reached such a conclusion when it comes to consider the matter further in paragraph 22 of the Decision, to which we shall further refer.
"The only basis however that the Tribunal could rely on for drawing this conclusion was the use by the applicant in the final paragraph of his memorandum of 8 April 2000 of the words "or beyond".
The Applicant used this phrase (in fact it was "and beyond")in the context of an assertion on his part that he was prepared to use not only the race relations procedures but go beyond that. He also used the phrase "public redress". The Tribunal was prepared to draw the conclusion that this was a vague allusion to the "provisions of the Race Relations Act." We find it difficult to see why the Tribunal concentrate on the words "or beyond" or regard the reference as "vague", when there is in fact the plain terminology in the letter "using the full extent of the race relations procedures" which must of itself infer a claim that he himself is being or has been discriminated against. The Tribunal continues in paragraph 21:
"The Tribunal was prepared to conclude that these two phrases within the memorandum were just sufficient to bring the applicant within the ambit of the phrase "otherwise done anything under or by reference to this Act".
Then there are the words upon which Mr Coppel has relied:
"The Tribunal accepted however that it was not clear cut and certainly it was not immediately obvious to anyone other than a person familiar with the legislation that this is what was envisaged or might have been envisaged by this phrase."
We shall return to that .
"However that lack of clarity made the applicant's task more difficult when the question was answered as to whether the commission by the applicant of a protected act was the "real reason" or the "core reason" for the response of P O Slattery. Mr Coppel in his closing submissions argued that P O Slattery or for that matter any other individual receiving this memorandum would not have immediately understood that the applicant was making reference to the Race Relations Act in its broadest sense."
"The phrase 'by reference to' is in our judgment, a much wider one than 'under' and should be read accordingly. An act can, in our judgment, properly be said to be done 'by reference to the Act' if it is done by reference to the race relations legislation in the broad sense, even though the doer does not focus his mind specifically on any provision of the Act."
"The Tribunal agreed with this proposition. It is inconceivable that any individual let alone P O Slattery would have deduced from the memorandum that Mr Rubery was arguing that either the Prison Service or more likely the three inmates in question were doing something that might amount to a breach of the Race Relations Act or related anti-discrimination legislation. Clearly P O Slattery transferred the applicant because he had had the temerity to send his memorandum but her response should be seen solely in that context. This was a manager receiving a memorandum that had been copied to all senior managers within the prison at Risley. Whilst the Tribunal was prepared to accept that the action of the manager was in response to that memorandum and that the memorandum did refer to allegations of racism made against the applicant, it was not a protected act, namely the contention that the prison service or prisoners had contravened race relations legislation, that prompted the response of P O Slattery. It could not be said that the assertion by the applicant that he was prepared to take his grievance elsewhere and seek public redress was the core reason or the real reason for the decision taken by P O Slattery. Therefore although there had been a protected act on the part of the applicant it was not that protected act that motivated P O Slattery either consciously or unconsciously. Adopting the words of Mr Coppel it is inconceivable that P O Slattery on reading this memorandum and in particular the section quoted above would have understood that Mr Rubery was obliquely referring to race relations legislation. The necessary link between her response and the protected act complained of therefore had not been made out and the applicant's claim for victimisation failed."
"As far as the change of duties was concerned the most that the Tribunal could infer from the facts was that the applicant was being singled out for a petty response on the part of his employer not because he had made allegations that raised the spectre of racism but solely because he was in the Tribunal's view undermining the authority of his manager by firstly questioning the decision to transfer him and secondly copying his grievance to managers senior to P O Slattery. On the facts the Tribunal was not prepared to draw the inference that the decision of P O Slattery was anything other than an unprofessional and irrational retaliation on the part of a manager whose managerial decision had been questioned."
In the course of argument, Mr Hodgson put to Mr Coppel the question as to whether that paragraph was not misconceived. It suggested that the transfer or, at any rate, the decision to transfer, came before the sending of the memo, when in fact, as indeed the Tribunal itself found, the decision to transfer came after the memo, and Mr Coppel, who had originally put forward this paragraph in the very forefront of his submissions, as indicating the thought processes of the Tribunal, was, understandably, forced to backtrack and, indeed, to attempt to find some other justification. It is plain that the Tribunal are incorrect in the descriptions and conclusions that they set out in this paragraph.
"She said that the obiter dictum of Slade LJ"
[and that is in Aziz]
" 'wrongly emphasises the underlying motivation of the alleged discriminator rather than the immediate cause of the unfavourable treatment.'"
Lord Steyn simply said he agreed, and that appears to us to be the clear result of Nagarajan. The underlying motivation must be disregarded or otherwise one is going to get into this kind of problem that the Tribunal entered into here, which is "Well, here is this memorandum, it did contain the threat of the use of racial discrimination legislation, but, even without hearing P O Slattery, we are satisfied that it was not that which caused the problem, it was simply resentment at receiving such an impudent memo per se". Of course, that will always be a difficult question in any event, and, if applicable generally, would lead to many cases of victimisation escaping simply because the onus of proof is, at the end of the day, on the applicant, who may not be able to establish it to the full if he or she cannot get inside the mind of the doer, or sender, of the offending act, or document, particularly if that person is not called as a witness. But we do not conclude that that is the appropriate course; we equally do not conclude that injustice will be done if that is not the case, because, of course, if in an appropriate case it is apparent, after hearing evidence, that a tribunal cannot be satisfied that it was the content of the relevant memo, for example, which caused the detriment, it will so conclude.
"From the many events leading up to the crucial happening, the court selects one or more of them, which the law regards as causative of the happening. Sometimes the court may look for the 'operative' cause, or the' effective' cause;. Sometimes it may apply a 'but for' approach;. For the reasons I sought to explain in Nagarajan -v- London Regional Transport [1999] IRLR 572, 575-576, 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."
There is nothing in Khan which causes us to doubt the applicability of Lord Steyn's central test in Nagarajan or which ought to have led the Tribunal to walk the tightrope that it did.