United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR K HENRY THE APPELLANT IN PERSON
For the Respondent	MR A THOMPSON (of Counsel) Instructed By: London Borough of Newham Legal Services Newham Town Hall East Ham London E6 2RP


 


HIS HONOUR JUDGE BIRTLES:

Introduction

1. This is an appeal from the decision of an Employment Tribunal sitting at Stratford (Chairman Mr Patrick Milmo QC) which dismissed Mr Henry's complaint of unfair dismissal against the Respondent. The decision was sent to the parties and entered in the register on 28 August 2002.
2. By a Notice of Appeal received on 9 September 2002 Mr Henry appealed against that decision. The matter came before a differently constituted panel of the Employment Tribunal on 10 December 2002 for a Preliminary Hearing. The judgment was delivered by His Honour Judge Altman. The Employment Appeal Tribunal limited Mr Henry's grounds of appeal to five separate matters as set out in that judgment. It is that appeal which we have heard today.

The material facts

3. Mr Henry is, and has for some time been employed on a part-time basis by the London Borough of Newham as a library assistant. The Employment Tribunal found that he principally worked at the Respondent's Forest Gate and Green Street libraries. Mr Henry's Originating Application, which was received by the Employment Tribunal on 4 July 2001, made a number of allegations of racial discrimination by officers of Newham Council. He alleged that these amounted to race discrimination or victimisation. The actions referred to are alleged to have occurred at various times between November 1977 and June 2001. Those complaints were denied by the Respondent Council.
4. Since the presentation of his Originating Application in July 2001 Mr Henry made further complaints in correspondence to the Employment Tribunal of further conduct by the Respondent which he alleged were further acts of discrimination and/or victimisation. The hearing before the Employment Tribunal took some four days in May and July 2002. The material facts as found by the Employment Tribunal are set out in paragraphs 6–24 of its decision and we accept them for the purposes of this appeal.

Employment Tribunal Decision

5. Having found the facts the Employment Tribunal then set out Mr Henry's case (paragraph 25), the Respondent's case (paragraph 26), the law (paragraphs 27-29) and then in paragraphs 30-40 it set out its conclusions. The structure of the decision is exactly as one would expect to find in a reasoned decision of an Employment Tribunal.

The grounds of appeal

6. As we have indicated a different panel of this Tribunal identified five specific grounds of appeal which it thought raised an arguable point of law. We will take each in turn.

Ground 1

7. The first ground of appeal is that the Employment Tribunal erred in law in that having accepted that institutional racism was an issue, first, refused to permit Mr Henry to read the first six paragraphs and the last three pages of his witness statement in support of that allegation and second, failed to give reasons as to why it found no evidence of institutional racism amongst the matters that Mr Henry raised before it and therefore why they dismissed the allegations.
8. The Employment Tribunal found that Mr Henry did raise an issue of institutional racism. In paragraph 25 of its decision it attempted to summarise Mr Henry's complaints in the following way:

"25 The Originating Application is somewhat loosely worded, but taken with the Applicant's evidence and the statements he made to the Tribunal his complaints of discrimination on racial grounds in relation to his employment by the Respondent can be summarised as follows:

(Not relevant)

Furthermore there was institutional racism endemic within the Respondent which was the prime cause of the discriminatory treatment of the Applicant outlined above, which had generally infected the management and was responsible for the way in which it dealt with the Applicant and responded to his grievances."

The Tribunal's conclusion is set out in paragraph 30 of its decision as follows:

"30. There should first be considered the charge of 'institutional racism' which according to Mr Henry prevailed throughout the management of the Respondent. We find this allegation wholly unsupported by any evidence. What we have heard about are a series of incidents involving Mr Henry and various officers of the Respondent concerned with the management of Library Services and Leisure Services or the work of Human Resources within these departments. Whether these incidents involved discrimination against Mr Henry on racial grounds is a matter which will have to be considered individually in relation to each incident, but there are no grounds for concluding or even suspecting, that there was a culture or policy of racial discrimination within the Respondent's organisation, or within the Library or Leisure Services departments."

9. Institutional racism was pleaded by Mr Henry in his Originating Application: pages 37 and 38 of the EAT bundle. Furthermore, it was specifically referred to in his revised witness statement: EAT bundle pages 47 and 57. There is also the specific conclusion of the unanimous Employment Tribunal: paragraphs 25 and 30 of its decision. We therefore reject Mr Henry's assertion in his statutory declaration that "at no point was the issue of institutional racism discussed at the Hearing": EAT bundle page 59. Mr Henry initially attempted in his submissions to us to repeat this point but subsequently seemed to have resiled from it. In our view it was completely proper for the Employment Tribunal to consider this issue as it had been raised before it by Mr Henry. Institutional racism as such gives rise to no individual cause of action under the Race Relations Act: Commissioners of Inland Revenue v Morgan [2002] IRLR 776 at pages 782-783 paragraphs 45-46 per Lindsay P. The only possible relevance of it to this case was a potential claim under Section 19B of the Race Relations Act 1976 inserted by Section 1 of the Race Relations (Amendment) Act 2000. However, Section 19B(6) specifically excludes the application of Section 19B(1) if any act of discrimination is made unlawful by virtue of any other provision of the Race Relations Act. Mr Henry's claim was under Sections 1, 2 and 4 of the 1976 Act. Section 19B therefore has no application to this case. Neither can we find any error of law in the reasoning of the Employment Tribunal set out in paragraph 30 of its decision. This Tribunal heard the evidence over a period of four days and made findings of fact in relation to a series of incidents involving Mr Henry and other officers of Newham Council. It found no evidence of a pattern or culture or policy of racial discrimination against Mr Henry. In the light of its findings of fact in paragraphs 31-39 of its decision there can be no criticism of the Employment Tribunal's conclusion in paragraph 20 that there was no evidence of institutional racism in this case. As to the second point identified by Judge Altman at the Preliminary Hearing we find that Rule 11(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 gives an Employment Tribunal very wide discretion indeed as to what evidence to admit. The Tribunal was fully entitled to request Mr Henry not to read parts of his witness statement. It felt that it was not relevant to the issues it had to decide. In any event a letter to the Employment Appeal Tribunal from the Chairman makes clear that the whole statement was "certainly read by members of the Tribunal": EAT bundle page 69. We can find no error of law here.
10. In his oral submissions to us Mr Henry sought to argue a third ground in relation to the institutional racism issue. His submission was that the Employment Tribunal's consideration of the issue obscured or in some way hijacked its proper consideration of his substantive claims of individual acts of discrimination and/or victimisation. This was not a ground which was apparently argued at the Preliminary Hearing. There is no reference to it in the judgment of Judge Altman. This Appeal Tribunal will not permit a point of law to be argued which has not been given leave at a Preliminary Hearing except in the most exceptional circumstances: Miriki v General Council of the Bar and Another [2002] ICR 505. In any event we see no substance in this point. It is abundantly clear that the Employment Tribunal did carefully examine the facts relating to the individual incidents of alleged racial discrimination and/or victimisation: decision paragraphs 8-24 (fact-finding) and paragraphs 31-39 (conclusions). Furthermore, the Employment Tribunal specifically states that it will have to examine the individual incidents of alleged racial discrimination and/or victimisation: decision paragraph 30.

Ground 2

11. The second ground of appeal identified by the Preliminary Hearing was that the Employment Tribunal erred in law in failing to find evidence of a continuing act or acts of discrimination and/or victimisation against him: see Section 68(7)(b) of the Race Relations Act 1976. The relevance of this is that the Employment Tribunal found that many of the alleged acts of discrimination against Mr Henry were out of time and with one exception that it would not be just and equitable to extend time to permit those acts of discrimination to be considered by the Employment Tribunal.
12. The law on this subject is now comprehensively set out in Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96 at page 101 paragraphs 51-52 per Mummery LJ. That decision was given on 27 November 2002 and thus post-dated the decision of the Employment Tribunal (28 August 2002). The decision in the Court of Appeal has recently been heard on appeal by the Judicial Committee of the House of Lords. However, no decision of the House of Lords has been handed down and we therefore proceed on the basis that the law as stated by Mummery LJ is correct. He said this:

"51 In my judgment, the approach of both the employment tribunal and the Appeal Tribunal to the language of the authorities on 'continuing acts' was too literal. They concentrated on whether the concepts of a policy, rule, scheme, regime or practice, in accordance with which decisions affecting the treatment of workers are taken, fitted the facts of the case: see Owusu v London Fire & Civil Defence Authority [1995] IRLR 574 at paragraphs 21-23; Rovenska v General Medical Council [1997] IRLR 367 at p.371; Cast v Croydon College [1998] IRLR 318 at p.322. (cf the approach of the Appeal Tribunal in Derby Specialist Fabrication Ltd v Burton [2001] IRLR 69 at p.72 where there was an 'accumulation of events over a period of time' and a finding of a 'climate of racial abuse' of which the employers were aware, but had done nothing. That was treated as 'continuing conduct' and a 'continuing failure' on the part of the employers to prevent racial abuse and discrimination, and as amounting to 'other detriment' within s.4(2)(c) of the 1976 Act).

52 The concepts of policy, rule, practice, scheme or regime in the authorities were given as examples of when an act extends over a period. They should not be treated as a complete and constricting statement of the indicia of 'an act extending over a period'. I agree with the observation made by Sedley LJ, in his decision on the paper application for permission to appeal, that the Appeal Tribunal allowed itself to be sidetracked by focusing on whether a 'policy' could be discerned. Instead, the focus should be on the substance of the complaints that the Commissioner was responsible for an ongoing situation or a continuing state of affairs in which female ethnic minority officers in the Service were treated less favourably. The question is whether that is 'an act extending over a period' as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed."

13. Unlike many cases where a time point is taken the Employment Tribunal in this case heard all of the evidence before reaching any conclusions. It made findings of fact about the individual incidents: decision paragraphs 8-24, referred to the relevant Section 68 of the 1976 Act: decision paragraph 28, and then went on to make conclusions about each incident: decision: paragraphs 31-39. The Tribunal noted the dates of the alleged incidents and the fact that a number of them were years out of time and specifically found that there was no campaign directed against Mr Henry "or that the various incidents can be regarded as part of a series of acts deliberately targeted at Mr Henry": decision paragraph 31. The care which the Tribunal took is exemplified by the fact that in one matter it did extend time: decision paragraph 34. In our judgment there was no error of law here.

Ground 3

14. The third ground of appeal identified by the Employment Tribunal was that Mr Henry was not permitted by the Employment Tribunal to amend his application to include a complaint that he was discriminated against by the Council's refusal to grant him compassionate leave. The material facts here are set out in paragraph 22 of the Employment Tribunal decision. The Tribunal say this:

"22 In July 2001 Mr Henry had to go at short notice to Jamaica to arrange and attend the funeral of an uncle. He complains that he asked Human Resources for and was not granted funeral or compassionate leave. Mr Rice in his evidence explained that the procedure normally followed when an employee suddenly had to take leave for a family bereavement was for the leave to be regarded as part of the annual leave until an application for special leave was made and considered after the employee's return. This was because there was usually not time to deal with the application before departure. This is what happened in this instance. Mr Henry made an application on 2 September 2001 for special leave from 2 July to 17 July (A 131) and he was granted 5 days funeral leave, one day more than normal (A 132)."

15. Mr Henry conceded that he had not in fact made an application to the Employment Tribunal to amend his Originating Application to make a complaint about racial discrimination and/or victimisation in respect of his application for compassionate leave. That is sufficient to dispose of the point. If no application was made then there can be no appeal against any refusal to permit such an amendment. However, even assuming that the issue arose before the date of the Originating Application (4 July 2001) the Tribunal clearly accepted the evidence given to it by Mr Rice on behalf of Newham Council. The Employment Tribunal was fully entitled to accept that evidence and find that the procedure adopted by Newham was rational both in its design and application and that it could not therefore draw any inference of racial discrimination and/or victimisation from it.

Ground 4

16. Judge Altman identified this point as being whether the Tribunal failed to consider the issues of victimisation raised by Mr Henry in his evidence to the Tribunal which covered other matters including "the actions of Mr Burbage, the way he was treated and other general patterns. This, no doubt, relates to his complaint about a continuing act".
17. There is only one specific matter referred to here by Judge Altman. Mr Burbage was the Council's Chief Executive. On 4 April 2001 Mr Henry wrote a letter to Mr Burbage which is headed "A Complaint Under the Whistle blowing Procedure". The allegations relate to alleged acts of bullying and harassment by Mr Henry's line manager, Ms Gurdip Ahadi, which had not allegedly been properly investigated by four identified managers: EAT Bundle page 104. Mr Burbage wrote back to Mr Henry on 18 April 2001 and stated that he did not see the relevance of the contents of the letter to the Council's whistle-blowing procedure. He suggested that Mr Henry co-operate with the disciplinary procedures and pursue a grievance if he wanted to do so: EAT bundle page 106. Mr Henry replied to Mr Burbage on 23 April 2001 and stated that he would be consulting his solicitor: EAT bundle page 107. There the matter seems to have ended. The Employment Tribunal referred to Mr Henry's letter of 4 April to Mr Burbage: decision paragraph 19. This was in the context of the fact-finding part of its decision. The Originating Application does not refer to the correspondence with Mr Burbage as being an act of discrimination in itself or a matter which was relied on by Mr Henry to establish a series of continuing act. Indeed, it does not refer to the correspondence at all. The revised witness statement does refer to the correspondence: EAT bundle pages 47 and 54. However, that is in the context of a complaint that Mr Burbage's refusal and/or failure to investigate Mr Henry's complaints of racial discrimination and/or victimisation was itself an act of racial discrimination and/or victimisation. The complaint about Mr Burbage fell within the three month period prior to the presentation of the Originating Application (4 July 2001). Though the Employment Tribunal did not specifically make a finding in relation to the complaint of alleged racial discrimination and/or victimisation by Mr Burbage, they clearly referred to the matter and had the correspondence before it. There can be no doubt that the Employment Tribunal implicitly rejected this allegation. Neither can we find any error of law on the part of the Employment Tribunal in not specifically referring to the matter as evidence of a continuing act. The Employment Tribunal clearly had the issue of a continuing act in mind (see ground 2 of this appeal) and had the material before it. In light of the fact that no submission or suggestion appears to have been made to it by Mr Henry that Mr Burbage's letter was part of a continuing act (rather the reverse) we see no error here.

Ground 5

18. The final ground of appeal is that Mr Henry complains that there was a period of monitoring that he was told about but that he later found that monitoring had been continued beyond that date without his knowing about it contrary to procedure and he relied upon it as evidence of discrimination. He alleged there was some confusion on the facts as to when monitoring ended and who actually knew about it. The Preliminary Hearing identified this as an arguable point of law in the following way:

"11 It seems to us that Mr Henry has an arguable case that the Employment Tribunal did not address the question as to whether any inference fell to be drawn from the fact that he was monitored without his knowledge in the context of race discrimination.": EAT bundle page 76 paragraph 11.

19. The Employment Tribunal looked at the issue of the Council's monitoring of Mr Henry in detail: decision paragraphs 8-11. It is not necessary to set out that evidence out here. The Employment Appeal Tribunal made specific findings of fact as to the period of time when it found monitoring had taken place. It found that those periods of monitoring were (a) from November 1997 until March 1998: paragraphs 8-9 and (b) March 2000 – September 2000 (paragraphs 10-11). The Employment Tribunal was clearly seised of Mr Henry's case that there was continual monitoring from November 1997 onwards and that that constituted racial discrimination: decision paragraph 25(1).
20. The Employment Tribunal discussed the issue at length: decision paragraph 32. It made the findings of fact set out above, it rejected Mr Henry's case and it gave reasons for doing so. It found that there was no continuing act and found that in any event the monitoring ended in September 2000. As the Originating Application was presented on 4 July 2001 there could be no question of any allegation of racial discrimination being in time as it did not fall within the three months limitation period. To be in time the monitoring would have to have continued to at least 4 April 2001. The Employment Tribunal records that Mr Henry put forward no reasons as to why it was just and equitable to extend time. In any event that is not a ground of appeal that is before us today.
21. In his oral submissions Mr Henry sought to rely on documents in the EAT bundle to persuade us that the Employment Tribunal erred in making its findings of fact. It is not necessary to set out those documents in detail, some of which are minutes of meetings. Mr Henry relied on (a) the note of a meeting on 7 December 2000: EAT bundle page 119 and the note of a meeting on 4 April 2001: EAT bundle page 95. Mr Thompson for the Respondent Council directed us to a note of a meeting on 27 June 2000: EAT bundle pages 86-88 and 90. It is clear to us that this material was before the Employment Tribunal and that although some of the remarks are potentially ambiguous there was ample material upon which it could make the findings of fact that it did. We cannot interfere with those findings of fact.
22. It follows that as the Employment Tribunal decided that the monitoring did not continue until past 4 April 2001 and that there was no continuing act of racial discrimination and/or victimisation then it was not necessary for it to decide whether that monitoring constituted such racial discrimination and/or victimisation. It cannot be criticised for not doing so.

Conclusion

23. For these reasons we find no substance in this Notice of Appeal and the appeal is therefore dismissed.