United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR SIMON DEVONSHIRE (of Counsel) Instructed by: Messrs Bates Wells & Braithwaite Solicitors 138 Cheapside London EC2V 6BB
For the Respondent	MR JACQUES ALGAZY (of Counsel) Instructed by: Messrs George Davies Solicitors Fountain Court 68 Fountain Street Manchester M2 2FB


 


HIS HONOUR JUDGE J McMULLEN QC

1. This case is about race discrimination and victimisation. We will continue to refer to the parties as Applicant and Respondent. It is an appeal by the Respondents in those proceedings against a Decision of an Employment Tribunal sitting at Manchester, Chairman Mrs C Porter, over five days in 2000, promulgated with Extended Reasons in 39 pages on 21 January 2001. The Applicant was represented there and here by Mr Algazy of Counsel; the Respondents were represented by Mr Garnett, solicitor, and today, they instruct Mr Devonshire of Counsel.

Introduction

2. The Applicant complained of constructive unfair dismissal, race discrimination, victimisation and breach of contract. The Respondents denied the allegation. The First Respondent contended that it did not dismiss the Applicant but that if it did, it acted fairly and on grounds of redundancy. It denied wrongful dismissal; all Respondents denied discrimination and victimisation.
3. The essential issues, as defined for the Employment Tribunal, were to make findings on the events of 1999 to early 2000. The competing submissions of the advocates were set out at length at the front of the Employment Tribunal's Reasons, from which can be derived the essential issues. The Tribunal decided that the First Respondent, the Trust, unfairly dismissed the Applicant, and was in breach of contract by also wrongfully dismissing him; that all three Respondents unlawfully discriminated against the Applicant on the racial grounds and the First and Second Respondents unlawfully discriminated against the Applicant by way of victimisation; the Trust failed to pay accrued holiday pay.
4. We are happy to note that the remedy hearing, also foreshadowed by the Employment Tribunal, resulted in a compromise agreement in respect of all of the claims, save for the claims under the Race Relations Act 1976 and we have been told that an agreement was made in monetary terms and payment has been made to the Applicant on behalf of the Respondents.
5. The three Respondents appeal against the findings of discrimination and victimisation on grounds set out an 18-page Notice of Appeal, and a Skeleton Argument and oral submissions today. Directions were given in this appeal by Mr Recorder Langstaff QC presiding at the EAT on 18 September 2001 at a preliminary hearing.

The facts

6. The Trust is a nationwide charitable organisation; it employed, at the relevant time, 21 staff at its Greater Manchester division of volunteers, including the Applicant. The ethnic or national origin of those members of staff was as follows: Bangladeshi 2, Black Caribbean 1 (the Applicant), Indian 2, Pakistani 3, White, 13.
7. Mr Scott, the Second Respondent is the Assistant Executive Director of the Trust's volunteers, operationally responsible for the volunteers' programme throughout England. At the relevant time he was the Director of the Greater Manchester region. He had previously been seconded to the Trust, prior to his employment by them, from a high street retail organisation. The Trust runs a volunteers programme, a 12-week long course for unemployed young people, designed to build their self-confidence and communication abilities in team work; the programme has been run for 10 years. Each of the three Respondents recognises that as a consequence of the make-up of the client group - the volunteers - these courses are challenging. The Third Respondent, Ms Gardner, was the Trust's Operations Manager for that division.
8. The Applicant was employed by the Trust as an Assistant Team Leader from 1 September 1998. His original contract was for one year; Mr Scott was involved in his appointment. It was funded by the Professional Footballers Association for one year. His position was due to expire at the end of August 1999, it did not.
9. In February 1999, the Applicant was appointed team leader of a volunteers team on the Trust's "Don't Let Us Be a Minority" Project. This aimed to run volunteers' programmes, targeted specifically at young people from ethnic minority backgrounds. On 23 August 1999, the Applicant took his volunteers' team on a residential week at Borrick Hall in Lancaster. On 26 August, a female course participant, Ms H, made a complaint that the Applicant had behaved inappropriately by trying to kiss her. The Applicant was interviewed about this complaint the following day. On 3 September the complainant told the Trust that she wished to present a formal complaint, and on 6 September, the Applicant was summoned to a meeting with Mr Scott and Ms Gardner, at which this complaint was rehearsed. As a result, the Applicant was suspended. The Tribunal found that he was put under pressure by Mr Scott and Ms Gardner to resign. The Tribunal also found that on that occasion a decision was taken to disband the Applicant's team.
10. On 22 September the Applicant attended an investigative meeting, conducted by Ms Hemming, the Trust's Human Resources Director. As a result, on 1 October 1999, the Trust wrote to the Applicant that it would not be proceeding with the allegation made by Ms H of sexual harassment, but that he:

"may have wilfully disregarded the advice of the Trust and thereby created a situation where damaging allegations of sexual harassment, likely to bring the Trust into disrepute could be made"

The Applicant was requested to attend an investigative meeting on 7 October, which would establish whether formal disciplinary action was called for. Mr Scott signed that letter.

11. Between the letter and the meeting, the Applicant lodged a grievance against the fact, as he put it, that he had not been acquitted of the charges against him. It is important to look at the terms of the grievance, since it is relevant to one of the two substantial grounds of appeal. The Applicant said:

"I find your comment "no evidence ….to disprove the allegation made" very worrying indeed. I also find the conduct of yourself and Janet Gardner unacceptable throughout the course of this matter. Accordingly I would like to register a formal Grievance against (a) The fact that it is clear I have not been acquitted of the charges. (b) The manner in which you have investigated this, in particular our meeting of 6^th September. (c) It appears that as you have been unable to hang unfounded allegations upon me, now you appear to want to discipline me for something that is clearly not my fault.

As there were no ground for the original complaint, when can I come back to work?"

He also said:

"any issues around training should be included and heard with my Grievance".

On 7 October the Applicant went on sick leave.

12. At some stage a meeting took place between Mr Scott and officers of Rochdale and Oldham Groundwork, in which it was proposed to transfer the funding for the project to them. The Tribunal firmly rejected Mr Scott's evidence that this took place on 18 October. It is, however, apparent that a meeting at some stage took place and the competing date appears to be at some stage in late November. We will return to this dispute.
13. On 20 October 1999, the Applicant served a race relations questionnaire which the Respondent appears to have received on the 22^nd ; he replied on the 28^th On 30 November, the Applicant advised the Trust that he would be fit to return when his sick note expired on 15 December, and sought to know what arrangements were in place for his return to work. Mr Scott replied, inviting him to attend a meeting with Ms Gardner, to discuss changes in the project, on 13 December; he did not attend that meeting. In its response to the statutory questionnaire, the Trust decided to consult relevant staff on 13 December, concerning the proposal to take forward four of the remaining eight courses. During most of this period Mr Scott had been away, certainly from the end of October to 22 November.
14. By early December a redundancy situation "therefore was inevitable", as the Trust put it. Had Groundwork chosen not to take on four of the courses, the Trust would have been left with eight courses which would only have required two team leaders for their delivery over the relevant period. By 13 December it was clear to Mr Scott that he would in fact need only one team leader as a result of Groundwork's decision that they would run four of the courses and would wish to appoint a team leader from their own community.
15. When the Applicant returned to work on 15 December, Ms Gardner said that he was to undertake outreach work in the community, looking for possible partners to work with the Trust. He did not attend for work again. A letter was sent to him dated 15 December, advising him of the possibility of redundancies amongst project team leaders and of interviews for the one vacancy, which would be held on a date which was subsequently to become 24 December. According to the Applicant's evidence, this was a great shock to him, as there had been no indication of redundancies prior to that date, so the following day, 16 December, the Applicant met Mr Scott and another officer from the HR Department to deal with the suggestion of redundancies. The Applicant was told that his grievance would be dealt with through the disciplinary appeal procedure in the new year and that the remaining disciplinary and investigative issues would be dealt with after the appeal.
16. On 4 January 2000 the Applicant wrote to the Trust, threatening his resignation. The Trust responded by extended the deadline for interviews for the job we have described, until 11 January; on that day the Applicant resigned and on 26 January he filed his Originating Application to the Employment Tribunal.
17. The Tribunal decided, in summary, as follows:

(1) Mr Scott racially discriminated against the Applicant by his conduct towards him from 6 September 1999 to 11 January 2000.

(2) Ms Gardner racially discriminated against the Applicant by her conduct towards him on one day, 6 September 1999.

(3) The Trust was vicariously liable for their actions.

(4) Mr Scott and Ms Gardner's treatment of Mr Beckford at the meeting on 6 September 1999 was one of a series, probably the first, of specific incidences which include the following:

(a) Mr Scott's decision to disband Mr Beckford's team on 6 September.

(b) The continued suspension of Mr Beckford after 7 September.

(c) Mr Scott's conduct towards Mr Beckford following the meeting on 22 September and his writing of the letter on 1 October, extracts from which we have cited above, raising fresh allegations which the Tribunal epitomised as being for the purposes of justifying:

"a second bite at the cherry, a second chance to oust him from his employment"

(d) The Trust's failure promptly to redress the Applicant's grievance.

(e) The Trust's failure to follow its own redundancy procedure, and in particular, that Mr Scott contrived by what the Tribunal described as a "sham of redundancy" to unseat Mr Beckford.

18. During the course of its Reasons, it generally rejected the evidence of Mr Scott and upheld the Applicant's, with only one minor, we hold, exception. It did, however, reject the Applicant's complaint about Ms Hemming and this matter is taken no further.
19. In the experience of this Appeal Tribunal these are as strong findings as we have ever seen of direct race discrimination and of victimisation by a corporate body and by individuals. They are strong because they are cogently organised and argued, so that we can see clearly the thinking behind each decision and finding and the process of reasoning from which the Tribunal moved from primary finding to inference to conclusion.

Tribunal directions

20. The Tribunal directed itself according to the relevant provisions of the Race Relations Act and to the relevant authorities which are set out by reference to the advocates' competing arguments in paragraphs 3 and 4 of its Reasons. So far as is relevant to the surviving issues in this case, we hold them to be Nagarajan -v- London Regional Transport [1999] IRLR 572; Aziz -v- Trinity Street Taxis Limited [1988] IRLR 204; Glasgow City Council -v- Zafar [1998] ICR 120. There is no dispute between Counsel today as to the correct self-directions contained within those submissions, the dispute is as to the application of the law to the facts.

Conclusions on the submissions

21. The three Respondents submitted that the Employment Tribunal had erred in the decisions which it had made because the Tribunal either misdirected itself in law as to the victimisation claim or made perverse decisions as to that claim and as to the principal claim of racial discrimination. Broadly speaking, the majority of the acts of discrimination found against the Trust by the Employment Tribunal were committed by Mr Scott, for whose actions the Trust was, of course, vicariously liable.
22. The Tribunal made a number of findings which the Respondents regard as highly damaging in respect of Mr Scott. Chosen by Mr Devonshire are two: first that Mr Scott had deliberately contrived, in further disciplinary proceedings against the Applicant on 1 October 1999, to oust him from employment, and, secondly, that he had deliberately contrived a redundancy situation with the intention of removing Mr Beckford from his position. It is contended that those findings are perverse.
23. The Tribunal decided that the Trust and the two individual officers had acted unlawfully. During the course of this appeal, Mr Devonshire has put at the forefront of his complaints about the Tribunal's Decision, its decision on victimisation and we will take that first, since it reveals a difficult legal question. It was contended, on behalf of the Applicant, that two protected acts had been taken. This is a reference to section 2 of the Race Relations Act 1976 which provides as follows:

"(1) 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 person, and does so by reason that the person victimised has -

…

(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,

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."

24. The two protected acts relied on are:

(1) issuing the Applicant's grievance on 4 October ;

(2) service of the Applicant's statutory race relations questionnaire on or about 22 October;

The authorities on this subject have been put before us. It seems to us that we are dealing with both subconscious and conscious acts; for the purposes of this case they are conscious, see Nagarajan.

25. In Waters -v- Metropolitan Police [1997] ICR 1073 at 1097, Lord Justice Waite considered a submission based upon section 4(1)(d), which is the relevant subsection for the purposes of our appeal. He rejected a submission made that a broad approach was to be taken to protected acts:

"That submission fails, in my judgment, for this reason. True it is that the legislation must be construed in a sense favourable to its important public purpose. But there is another principle involved - also essential to that purpose. Charges of race or sex discrimination are hurtful and damaging and not always easy to refute. In justice, therefore, to those against whom they are brought, it is vital that discrimination, including victimisation, should be defined in language sufficiently precise to enable people to know where they stand before the law. Precision of language is also necessary to prevent the valuable purpose of combating discrimination from becoming frustrated or brought into disrepute through the use of language which encourages unscrupulous or vexatious recourse to the machinery provided by the discrimination Acts. The interpretation proposed by Counsel would involve an imprecision of language leaving employers in a state of uncertainty as to how they should respond to a particular complaint, and would place the machinery of the Acts at serious risk of abuse. It is better, and safer, to give the words of the subsection their clear and literal meaning. The allegation relied on need not state explicitly that an act of discrimination has occurred - that is clear from the words in brackets in section 4(1)(d). All that is required is that the allegation relied on should have asserted facts capable of amounting in law to an act of discrimination by an employer within the terms of section 6(2)(d)."

It seems to us that for a complaint of a protected act to fall within the definition there must be some way from which the discriminator can know that an assertion has been made which is linked to discrimination by him or her, contrary to section 6(2)(b).

26. The Applicant's letter raises serious dissatisfaction with Mr Scott and Ms Gardner; it does not in any sense reflect a complaint which relates to race. Indeed, it is a complaint of unfair treatment of him as an employee, making no specific or even general complaint based on race. Nor could it be said that Mr Scott or Ms Gardner could or should have divined that the complaint was of race discrimination. Just because an employer has treated unfairly one of its employees who is black does not mean that it has done so because he or she is black, otherwise the rule in Zafar would be given no purpose. An employer is equally capable of treating unfairly persons from a range of ethnic groups; it becomes contrary to the anti discrimination statute when such action is on racial grounds or, in a case of victimisation, is because of the discriminator's knowledge that the person concerned has committed a protected act.
27. We thus uphold Mr Devonshire's submission that the protected act complained of on 4 October did not fall within section 2(1)(d) and turn to the second. This is uncontroversial; it is accepted that the questionnaire is a protected act. It is necessary, therefore, to examine the approach of the Employment Tribunal. It found that Mr Scott had initiated the programme to oust the Applicant by reason of redundancy. As can be seen from the date of the questionnaire, 18 October became a relevant issue. If Mr Scott began his campaign to oust the Applicant at a meeting on the 18^th, then it could not be in response to, or in retaliation for, the questionnaire which was served four days later. The Tribunal disbelieved Mr Scott when he said that he had made his decision on that day.
28. The Tribunal has given cogent reasons for that finding; it is not open to us to interfere. We can, however, add a perspective: what really is at issue in this case is the decision which the Respondent averred was taken on 7 December to begin a programme of redundancies which led to the Applicant's dissatisfaction and, as was held, his wrongful and constructive unfair dismissal. Since there is really no doubt that there was a meeting between Mr Scott and Groundwork, at some stage prior to that, it is important to step back for a moment and consider what it is that was in issue before the Tribunal.
29. Less important, in our judgment, is the date of 18 October, and more important is the decision to make redundancies and its connection to the provision of funding. The Tribunal found that Mr Scott, a few weeks before December 1999, took the decision to transfer four of the project teams to Groundwork, and that was his decision alone. As far as the Applicant was concerned, it saw life in the correspondence he was sent, indicating consultation on redundancy in the middle of December. Thus, as a matter of reality, the questionnaire was followed by steps directly targeted at the Applicant which involved his selection for consideration of redundancy. The causal connection between the two was made by the Tribunal; that is a matter of fact for it. We see no reason to interfere with it, based as it is upon the extremely powerful infrastructure of findings and reasons. This ground of appeal is therefore dismissed.
30. We turn to the principal ground. Here it is contended that the Tribunal made a perverse decision in that its findings were unsupported or unsupportable. In great detail, Mr Devonshire has analysed certain aspects of the Tribunal's reasoning. We have to say, standing back, that these are minor criticisms, even if they are valid. The overall impression, which a Tribunal is enjoined to make - see Anya -v University of Oxford [2001] ICR 847 CA - is one which emerges clearly from its reasoning. It found a string of incidents over a short period of time which were in themselves discriminatory and which, as a whole, also created a full landscape of discrimination by Mr Scott and the Trust and, as a small aspect, by Ms Gardner.
31. Thus, criticisms about the involvement of Ms Hemming seem to us to go nowhere; there is a straight line of involvement by Mr Scott throughout the whole of the period for which he was condemned by the Employment Tribunal as committing discriminatory acts. He was, of course, in charge, so Ms Hemming's advice, well received, and no doubt, correct, and, indeed praised by the Tribunal, was what it said it was: advice.
32. The handing of the grievance was a matter criticised by the Employment Tribunal and obviously formed part of its Decision in relation to other matters. The criticism made by Mr Devonshire that the Tribunal's findings were perverse about the treatment of the Applicant on 6 September fail, in our judgment, to reach the high threshold placed in front of such complainants by the EAT in Stewart -v- Cleveland Guest [1996] ICR 535 EAT Mummery P.
33. We have no doubt that the Tribunal has demonstrated with sufficient findings and reasoning, its approach to each of the discrete issues of discrimination and has also drawn back and looked at them holistically. It cannot be said that these are the findings which no reasonable Tribunal could make, indeed, we fully see how its Decision was reached.
34. The second ground of appeal against the substantive discrimination finding is dismissed in respect of all three Appellants. We wish to thank both Counsel before us today for the expeditious way in which they have taken us through a very dense framework of documentation and reasoning and enabled us to see our way through to a decision in this case.