United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant For the First Respondent: British Telecommunications Plc	MISS NICOLA BRAGANZA (of Counsel) Instructed By: Messrs Hereward & Foster Solicitors 101 Barking Road Canning Town London E16 4HQ NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE FIRST RESPONDENT
For the Second Respondent: Kelly Services (UK) Limited For the Third Respondent: Imagination Limited	MRS LINDA GOLDMAN (of Counsel) Instructed By: Kelly Services (UK) Ltd Advisory Consulting & Training Associates Limited 4 Crafton Mentmore Nr. Wing Bucks LU7 0QL MISS CATHERINE CALLAGHAN (of Counsel) Instructed By: The Simkins Partnership Solicitors 45-51 Whitfield Street London W1T 4HB


 


THE HONOURABLE MR JUSTICE RIMER:

1. This is an appeal by Miss Serena Lerica against a decision of an employment tribunal sitting at London South on 29 August 2001 and chaired by Mr G.P.Self. The tribunal's extended reasons were promulgated on 17 October 2001. The matter before the tribunal was an interlocutory one as to whether Miss Lerica had correctly joined Imagination Limited ("Imagination") as the third respondent to her complaint based on allegations of breach of contract and sex and race discrimination. The first and second respondents to her application are British Telecommunications Plc ("BT") and Kelly Services (UK) Ltd ("Kelly"). The tribunal held that Imagination had not been properly joined and dismissed the claim against it.
2. We should refer first to Miss Lerica's originating application, presented on 9 February 2001, in order to see the nature of the case she was seeking to make against Imagination. Miss Lerica described herself in it as a single, black woman, aged 26, who registered with Kelly for temporary work. On 8 May 2000, she was assigned employment as a host on the BT Talk Zone in the Millennium Dome, where her duties involved interacting with the public and introducing them to the Talk Zone. The conditions of service she signed with Kelly indicated that she was not their employee but was engaged as a self-employed worker. Miss Lerica does, however, contend that she became an employee of BT when assigned to them.
3. During her time at the Talk Zone, Miss Lerica came into contact with Dominic Baker, Imagination's technical manager. Imagination was said by Miss Lerica to have been hired by BT to provide it with technical support at its Talk Zone, and we understand that to be admitted, at any rate by BT. She alleges that Mr Baker subjected her to sexual harassment and she details her complaints. She alleges that she then left the Talk Zone but returned to it after a short period. She then had a short sexual relationship with Mr Baker, but asserts that, following its termination, he re-commenced acts of harassment towards her, of which she again gives details. She asserts she was wrongfully dismissed. That part of her complaint is not directed against Imagination.
4. It is in fact difficult to identify anything in the originating application which might be said to make out any sort of a case against Imagination. Miss Lerica alleges that Mr Baker subjected her to sexual harassment and appears to assert (in paragraph 7) that this amounted to direct discrimination contrary to section 6 of the Sex Discrimination Act 1975 ("the SDA"). Section 6 is in Part 11 of the SDA, headed "Discrimination in the Employment Field." But there can be no claim under section 6 against Imagination by reason of Mr Baker's alleged acts, because Imagination was not her employer. Further clues as to the basis of Miss Lerica's case are to be found in paragraphs 25 and 26 of the application. They read:

"25. [Miss Lerica] claims less favourable treatment on the grounds of sex contrary to Section 1(1)(a) of the [SDA] and that she has been subjected to detriment contrary to Section 6 of the [SDA]. This is both in relation to the sexual harassment that she has suffered and also in the way in which [BT] and [Kelly] responded to her complaint of harassment.

26. [Miss Lerica] also claims less favourable treatment on the grounds of race contrary to Section 1(1)(a) Race Relations Act 1976 and that she has been subjected to detriment contrary to Section 4 Race Relations Act 1976. This claim includes the way in which her complaints were dealt with by [BT] and [Kelly]."

5. As regards Imagination, those paragraphs appear to advance her case no further. On the face of her originating application, Miss Lerica simply fails to allege any arguable case at all against Imagination. However, Miss Braganza, who appeared before us for Miss Lerica, also asked us to have regard to the allegations made in paragraph 35(5) of certain further particulars that Miss Lerica gave of her complaint. That paragraph asserted no more than that Imagination's staff had extensive knowledge about Mr Baker and his alleged sexual behaviour with children.
6. On 29 June 2001, a directions hearing was held by the employment tribunal (Ms C Hyde sitting alone as chairman). Paragraphs 1 to 3 of the First Schedule to their order identified the issues in general terms, but did not shed any more light on precisely what Miss Lerica was alleging against Imagination. It is no surprise that Imagination's stance was that they had been wrongly joined as a respondent to her application, and so in paragraph 9 the tribunal directed the following:

"Preliminary Hearing

9. A preliminary hearing will take place on 29 August 2001 in order for a Tribunal to consider whether [Imagination] is properly joined as a Respondent, having regard to sections 4, 7, 32 and 33 of the Race Relations Act 1976 and sections 6, 9, 41 and 42 of the Sex Discrimination Act 1975."

7. The tribunal was therefore apparently directing a preliminary hearing as to whether the facts alleged by Miss Lerica in relation to Mr Baker enabled her to set up any arguable case against Imagination to the effect that they had unlawfully discriminated against her either under the SDA or the RRA. Section 6 of the SDA was (it seems to us) a non-runner, as was its equivalent in the RRA (section 4), and Miss Braganza (who appeared before us for Miss Lerica) did not argue otherwise. That left two main questions. The first was whether the interrelationship between sections 9 and 41 of the SDA (or their equivalent in the RRA, sections 7 and 32) enabled Miss Lerica to maintain that the facts she alleged added up to an arguable case of discrimination against Imagination. The second was whether it was arguable that Imagination was primarily liable under section 42 of the SDA (or its equivalent under the RRA, section 33) as having knowingly aided another to do an act made unlawful by the SDA or the RRA.
8. We will set out the material parts of sections 9, 41 and 42 of the SDA:

"9. Discrimination against contract workers

(1) This section applies to any work for a person ('the principal') which is available for doing by individuals ('contract workers') who are employed not by the principal himself but by another person, who supplies them under a contract made with the principal.

(2) It is unlawful for the principal, in relation to work to which this section applies, to discriminate against a woman who is a contract worker-

…

(d) by subjecting her to any other detriment. …

41 Liability of employers and principals

(1) Anything done by a person in the course of his employment shall be treated for the purposes of this Act as done by his employer as well as by him, whether or not it was done with his employer's knowledge or approval.

(2) Anything done by a person as agent for another person with the authority (whether express or implied, and whether precedent or subsequent) of that other person shall be treated for the purposes of this Act as done by that other person as well as by him.

(3) In proceedings brought under this Act against any person in respect of an act alleged to have been done by an employee of his it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing in the course of his employment acts of that description.

42 Aiding unlawful acts

(1) A person who knowingly aids another person to do an act made unlawful by this Act shall be treated for the purposes of this Act as himself doing an unlawful act of the like description.

(2) For the purposes of subsection (1) an employee or agent for whose act the employer or principal is liable under section 41 (or would be so liable but for section 41(3)) shall be deemed to aid the doing of the act by the employer or principal. …"

9. The preliminary hearing came before the employment tribunal on 29 August 2001, and it is the decision of that tribunal which is challenged on this appeal. The tribunal's extended reasons are refreshingly unextended. They referred first to the direction which had been given for the preliminary hearing, which required them to decide whether Imagination "were properly joined to the proceedings having regard to the appropriate sections of both the [SDA] and the [RRA]." They briefly outlined the allegations we have summarised and they recorded that Miss Lerica's complaint was that Mr Baker had sexually harassed her and that Imagination was vicariously liable for such harassment.
10. The tribunal said that the sexual harassment, if proved, amounted to sex discrimination within section 1 of the SDA, and they referred to section 6 of that Act. They recorded Miss Lerica's concession that she had never been employed by Imagination and had never had any contractual relationship with them. In paragraphs 4 and 5, the tribunal expressed their conclusions as follows:

"4. Section 6 of the [SDA] deals with discrimination by employers against employees or prospective employees and section 9 deals with discrimination against workers who are contracted to another employer. [Miss Lerica] accepted before us that she has never been an employee of [Imagination] and had had no contractual relationship with them whatsoever. Employment in the Act is defined at section 82(1) and [Miss Lerica] cannot be said to come within that definition because of this lack of any contractual relationship to carry out any service, work or labour for [Imagination].

5. It seems to the Tribunal that the situation which we are presented with is one where the issue, inter alia, before the main Tribunal will be the extent to which [BT] and/or [Kelly] can be held to be liable for the acts of the employee of [Imagination] who is a third party with no contractual nexus with [Miss Lerica] at all. Pursuant to section 41(1) of the Act an employer's secondary liability is limited to discriminatory acts committed by his employees in the course of their employment. The extension to primary liability characterised in cases such as Burton v. De Vere Hotels Ltd ICR 1 may mean that there is the possibility of a valid claim against the employer if the necessary test is passed but there is no suggestion in that case or indeed any other that liability may be extended so that the third party might validly be joined. Accordingly we find that [Imagination] has not been properly joined and we dismiss all claims against them."

11. Miss Lerica's notice of appeal against that decision was dated 21 November 2001. It raised several grounds of appeal, but we need not take time referring to them because the scope of her appeal was materially narrowed by the order of this appeal tribunal at the preliminary hearing on 16 January 2002. All her grounds of appeal were dismissed bar one. The only surviving ground was explained in the judgment of this appeal tribunal (delivered by Mr Commissioner Howell QC), and is also reflected in the order it made. We will identify it by reference to paragraph 2 of the judgment:

"2. That issue which we accordingly direct is whether, on the basis of what we were told by Ms Sivanandan, who appeared today before us for [Miss Lerica], about the way the case was presented to the Tribunal on 29 August by Ms Lerica, the Applicant who was appearing in person on that date, it was an error of law for the Employment Tribunal to determine the preliminary issue of whether [Imagination] was joined as a proper party to the proceedings, and immediately to dismiss the proceedings against it, on the basis only of the case alleged in the original Originating Application dated 9 February 2001 and the statutory provisions referred to in the Tribunal's Extended Reasons of 17 October 2001, and without regard to the additional factual case sought to be made against [Imagination] by Ms Lerica for knowingly aiding acts of discrimination under sections 42 of the Sex Discrimination Act 1975 and section 33 of the Race Relations Act 1976 as identified in the paragraph beginning 'It is my case' in [Miss Lerica's] written submission presented to the Tribunal on 29 August 2001 which has been produced to us." (Our emphasis)

12. In our view, that formulation of the only ground of appeal which Miss Lerica was to be permitted to pursue to a full hearing confined her to an extremely narrow point. We do not interpret it as permitting her to argue that the employment tribunal were wrong in their conclusions that she had no arguable case under sections 6, 9 and 41 of the SDA (or their equivalents in the RRA). We interpret it as simply enabling her to argue that the tribunal may have been led to error in their overall conclusion without also having regard to "the additional factual case" to which they refer. That suggests, on the face of it, that the appeal tribunal was accepting that Ms Lerica had presented such an "additional factual case" to the tribunal on 29 August 2001. It is, however, clear that they were not necessarily accepting that she had done so. That appears from paragraph 6 of their judgment, in which they said:

"6. In the circumstances we will direct that the Chairman should be supplied with a copy of the transcript of this judgment and [Miss Lerica's] 'written submission' for the Tribunal Hearing on 29 August 2001 and invited to give any comments he thinks fit for the assistance of the Appeal Tribunal on the extent to which the additional basis of claim against [Imagination] identified at the end of that document was sought to be relied on by [Miss Lerica] at that hearing."

13. We regard it as clear that if in fact Miss Lerica had not advanced any such "additional factual case" at the hearing, then her appeal must simply fail, since the appeal tribunal were plainly not permitting her to take points by way of appeal she had not taken before the employment tribunal.
14. As to whether Miss Lerica did advance the "additional factual case" to the employment tribunal, there is now a certain amount of material before us. First, on 29 January 2002, Miss Lerica made an affidavit to which she exhibited what she described as the written submission she says her legal advisers had prepared for her for use at the hearing on 29 August 2001. She says she only had one copy of it with her at the hearing, and did not hand it to the tribunal clerk. She says she told the chairman she only had one copy, and that she read the document aloud to the tribunal. She said in paragraph 4 of her affidavit:

"4. I am able to inform the Court that I read the entire document to the tribunal word for word and call [sic] recall that the Chairman asked me what 'Acts' I was relying upon with regard to [Imagination]. In response to his question, I re-read aloud all of the sections in the submission that related to the said 'Acts'. I believe that the chair and panel members made notes when I was speaking and may have recorded what I read out about section 42 of the Sex Discrimination Act 1975 and Section 33 of the Race Relations Act 1976."

15. The exhibited submission starts by making clear that Miss Lerica claimed to be making a complaint against Imagination both under the SDA and under the RRA. It then asserted her belief that Mr Baker was employed by Imagination at the material time, a point made in answer to Imagination's assertion that he was self-employed. Under the heading "Vicarious liability under the Race Relations Act 1976 and the Sex Discrimination Act 1975," it said:

"I believe that [Imagination] are correctly joined in this matter due to the fact that Section 32 of the 1976 Act and Section 41 of the 1975 Act state that employers, agent or principals are liable for any acts done by a person in the course of employment/work. Their acts are treated as if they were acts of the employer, agent, or principal."

16. The particular part of the submission referred to by this appeal tribunal in its judgment is headed "Section 42 Sex Discrimination Act 1979 [sic] and section 33 of the Race Relations Act 1976." It reads:

"It is my case that [Imagination] aided Mr Baker to carry out the discriminatory Acts by not disciplining him and encouraging his behaviour. I refer to the letter above, which clearly shows that [Imagination] were aware of the behaviour but choose not to deal with it. I refer the tribunal to my Notice of Application. In addition I am able to provide other example."

17. The letter referred to is described as dated 8 May 2001, although in fact it was written on 8 May 2000. It was from Mr Myerscough-Walker of Imagination to Mr Baker and gave Mr Baker guidelines as to the importance of respecting other peoples' boundaries in the workplace, and to avoid crossing them. The inference is that there had been some complaints about his behaviour.
18. We should perhaps mention that Miss Lerica's affidavit was a little misleading. The inference from it is that the form of the exhibited submission was exactly as it had been provided to her by her legal advisers. In fact it was not. The exhibit was in the nature of a made up copy of the original submission, which had been transmitted by email to Miss Lerica by her solicitors, Hereward & Foster. The content was the same, but we consider that Miss Lerica would have done better to explain the precise nature of the document she was exhibiting to her affidavit.
19. Mr Gary Self, the tribunal chairman on 29 August 2001, was sent a copy of this appeal tribunal's judgment of 16 January 2002, together with a copy of the submission. By his letter of 5 February 2002 in response, he said that "I am quite sure that no such document was presented to the Tribunal at the hearing on 29 August 2001 … I am quite sure, both from my clear independent recollection and also from my recent perusal of the notes that [Miss Lerica] produced no skeleton argument at that hearing. I am quite sure that the first time I saw that document was when it came through attached to the EAT judgment." Mr Self wrote a rather fuller letter to this appeal tribunal on 28 May 2002. He there said he was quite sure of the following:

"1). No written submission on behalf of [Miss Lerica] was submitted to the Tribunal on 29 August 2001. The written records indicate this as does my own clear recollection. The only skeleton argument put in was on behalf of [Imagination].

2). At no stage was there any indication from [Miss Lerica] that she had prepared a written argument. Had she done so I would have asked her to either read the same or alternatively hand the same in for the Tribunal to read. I would also have directed that the other parties should be given a copy to enable them to make representations thereon. I understand from correspondence on the Tribunal file that [Imagination] at least had no knowledge of written submission from [Miss Lerica].

3). I did not observe [Miss Lerica] reading from a pre-prepared script. Had I done so again I would have carried out the steps at (2) above.

4). I am quite sure that the information contained within [Miss Lerica's] written submission was not relied upon. If it had been referred to orally by [Miss Lerica] it would be in my notes of evidence. It is not.

5). I recall clearly that [Miss Lerica] was nervous and almost reticent in making any submissions. The statements made and recorded in the notes of evidence came from my questioning of her rather than any attempt by her to make submissions as such.

6). I am quite sure that [Miss Lerica] was given every opportunity to make whatever submissions she wanted. I am mindful to the difficulties litigants in person face and always ensure that they have said all they wish.

7). The detail contained with the 'written submission' is new to me e.g reference to a letter dated 8 May 2001. Had that specific letter been referred to it would be in the notes of evidence. It is not.

In conclusion, I am able to say that I am sure that the 'written submission' was not put to the Tribunal at the hearing of 29 August 2001. If it had been it would have been carefully considered."

20. Finally, on 20 January 2003, Grant Boyd-Hall, BT's solicitor, who was at the hearing on 29 August 2001, made an affidavit confirming that he had no recollection or record of Miss Lerica reading from a pre-prepared statement or informing the tribunal that she was doing so. He said the first time he was aware of any such written submission was when he saw Miss Lerica's affidavit of 29 January 2002. By paragraph 5.1 of its answer to the notice of appeal, Imagination also asserts that Miss Lerica did not make any point at the hearing that it should be joined in reliance on s. 42 of the SDA and 33 of the RRA.
21. In that state of evidential play, there is a conflict before us as to whether or not Miss Lerica did in fact read from a pre-prepared submission at the hearing on 29 August 2001 – including in particular the "additional factual case" directed at section 42 of the SDA and section 33 of the RRA. We did not consider it appropriate for this appeal tribunal to hear oral evidence and cross-examination on the point, nor did any party suggest that would have been appropriate. In the light of the disagreement between the parties themselves as to what happened at the hearing, we consider we should rely on the chairman's recollection, supported by his notes, as the best guide as to what happened. We regard that approach as supported by the decision of the Court of Appeal in Hayman v. Rowlands [1957] 1 WLR 317, referred to by this appeal tribunal in Aberdeen Steak Houses Group PLC v. Ibrahim [1988] ICR 550, at 555, 556. We will confine ourselves to citing two sentences (at 556) from Wood J's judgment delivered in the latter case:

"It is clearly right that where the parties cannot agree between themselves upon the accuracy or inaccuracy of the notes of a court that the version given by the court should remain supreme. In the absence of some such rule it would be impossible to keep any control over the number of continuing issues on the subject."

22. In this case, there is of course no note here by the chairman that Miss Lerica did not read from anything. Nor, if she did not, could there be any such note. But we consider that we should proceed on the basis that if Miss Lerica had done what she says she did, it would have been noted in some manner by the chairman, as he asserts it would have. But it was not. We proceed, therefore, on the basis that Miss Lerica did not make the points to the tribunal on 29 August 2001 which she now claims she did. In short, we approach this appeal on the basis (i) that she did not advance the "additional factual case" referred to in this appeal tribunal's earlier order, and (ii) that she therefore advanced no proposition to the effect that her case was that Imagination aided Mr Baker in his allegedly harassing or racially discriminatory activities.
23. On the hearing of this appeal, Miss Braganza did not argue very strongly against our arriving at this conclusion, but she nevertheless unfolded a careful argument directed to the proposition that the tribunal were in error to dismiss Imagination from the proceedings. She reminded us that tribunals should be wary of striking discrimination claims out in advance of a full hearing on the merits, and referred us to Lord Steyn's observations in his speech in Anyanwu and another v. South Bank Student Union and another (Commissioner for Racial Equality intervening) [2001] 1 WLR 638, at 647:

"24. … For my part such vagaries in discrimination jurisprudence underline the importance of not striking out such claims as an abuse of the process except in the most obvious and plainest cases. Discrimination cases are generally fact-sensitive, and their proper determination is always vital in our pluralistic society. In this field perhaps more than any other the bias in favour of a claim being examined on the merits or demerits of its particular facts is a matter of high public interest. Against this background it is necessary to explain why on the allegations made the by the appellants it would be wrong to strike out their claims against the university."

24. Miss Braganza sought first to show that the facts alleged by Miss Lerica arguably established the basis of a viable discrimination claim against Imagination based on the relationship between sections 9 and 41 of the SDA (and the equivalent in the RRA). Her proposition was that BT was the principal for the purposes of section 9 and that Miss Lerica was the contract worker. She then submitted that Imagination should be regarded as BT's agent, and as such answerable for the acts of harassment committed by Mr Baker. She advanced an argument that, on this analysis, the combined effect of sections 9 and 41 enabled Miss Lerica to advance a viable argument of unlawful discrimination against Imagination.
25. We say no more about Miss Braganza's argument than that we do not accept that it was open to her to advance it on this appeal. We have earlier outlined the narrow confines of this appeal, and they did not permit Miss Lerica to advance the type of arguments based on sections 9 and 41 which Miss Braganza did advance - and which we have no doubt were not advanced before the tribunal by Miss Lerica herself. This is a case in which Miss Lerica's originating application is woefully inadequate in identifying any arguable case against Imagination, and we are satisfied that no arguable case based on sections 9 and 41 was outlined to the employment tribunal. In the light of the decision made at the preliminary hearing of her appeal, Miss Lerica was not entitled to re-open before us any argument based on those sections.
26. We would be disposed to deal in a similarly summary way with Miss Braganza's submission that Miss Lerica has at least an arguable case that Imagination was a person who knowingly aided another person to do an act made unlawful by the SDA, so as to render Imagination liable under section 42 of the SDA (and its equivalent in the RRA). That is because, as we have said, this appeal tribunal only permitted such an argument to be made if in fact Miss Lerica had advanced such a case to the employment tribunal – that is, by advancing to it her "additional factual case" – whereas we have concluded that we must assume she did not do so.
27. In any event, we regard the case against Imagination based on sections 42 and 33 as hopeless. There is nothing in the material we have seen which justifies the advancing of a case that Imagination knowingly aided any unlawful act of discrimination by anyone else. In the Anyanwu case, supra, Lord Bingham of Cornhill said (at [2001] 1 WLR 638, at 641) that:

"5. … A person aids another if he helps or assists him … While any gloss on the clear statutory language is better avoided, the subsection points towards a relationship of co-operation or collaboration; …

In the same case (at [2001] 1 WLR 654), Lord Millett said:

"49. … But aiding is a very different concept from encouraging or inducing on the one hand and causing or procuring on the other. It requires a much closer involvement in the act of the principal."

28. Both Lords Bingham and Millett returned to the point in Hallam and another v. Avery and another [2001] 1 WLR 655. Lord Bingham said, (at 659):

"9. … But the judge was at pains to point out that section 33(1) [of the RRA] required more than a general attitude of helpfulness and co-operation. As he accurately put it: 'The Act requires them to have knowingly aided the council to do an act made unlawful by the Act.'"

Lord Millett too emphasised the importance of correctly identifying the action of the principal which the accessory is said to have aided. He also said (at [2001] 1 WLR 661):

"18. … The man who helps another to make up his mind does not thereby and without more help the other to do that which he decides to do. He may advise, encourage, incite or induce him to do the act; but he does not aid him to do it. As I said [in the Anyanwu case] aiding requires a much closer involvement in the actual act of the principal than do either encouraging or inducing on the one hand or causing or procuring on the other."

29. Having regard to these guidelines as to what is required before a case of "knowing aiding" can be made out, we look in vain at Miss Lerica's originating application and particulars for anything in the nature of the assertion of a factual case to the effect that Imagination knowingly aided either Mr Baker or anyone else to commit any allegedly unlawful act of discrimination. We record that Miss Callaghan, for Imagination, submitted with force that there is in fact nothing in the SDA or RRA rendering unlawful what Mr Baker is alleged to have done. But we find it unnecessary to rule on that submission because, even assuming that Mr Baker did commit an unlawful act of discrimination, we presume that Miss Lerica put her case as high as she could in her written submission: and the most she was there able to assert was that Imagination "aided Mr Baker to carry out the discriminatory Acts by not disciplining him and encouraging his behaviour." Even if there was a failure on Imagination's part to discipline Mr Baker, we have no doubt that such failure could not constitute an act of "knowing aiding" by Imagination. As for the assertion that Imagination encouraged his behaviour, there is not a murmur of an allegation to that effect in the originating application or in the particulars given under it. Even if there were, Lord Millett has twice made it clear that merely encouraging another to do an act does not by itself amount to the "aiding" of its doing.
30. In our view, the tribunal were entirely right to dismiss Miss Lerica's claim against Imagination; and we dismiss her appeal against their decision.