United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For Mrs C Johnson	MR R JOHNSON (Husband)
Sanctuary Care Services Ltd and Sanctuary Housing Association & Others	MR D BROWN (of Counsel) Instructed by: Messrs Trowers & Hamlins Solicitors Sceptre Court 40 Tower Hill London EC3N 4DX

SUMMARY

Race Discrimination: Burden of Proof

Tribunal did not deal with time limits although raised by employer in ET3. Tribunal used additional matters for background facts without giving Respondent employer the opportunity to comment. Tribunal failed to make proper findings of fact or draw proper inferences of discrimination.


 


HIS HONOUR JUDGE ANSELL

1. This is an appeal and cross-appeal from various decisions of the Watford Tribunal in January and July 2004. The merits decision followed the hearing in July 2004 when they held that a claim of race discrimination should succeed in part.
2. The cross-appeal relates to two Orders for Costs that were made at hearings on 20 January and 26 January for, in the former case, £1,848.75 and in the latter case, a sum of £1,492.25. That latter sum had been increased slightly as a result of some further costs that were said to be incurred in relation to a dismissal of the review hearing.
3. The act of discrimination alleged was that Mrs Johnson had been treated less favourably on the grounds of her race by being called to a disciplinary hearing in respect of an alleged work incident on 25 and 26 July whereas her white comparator, Ms Rowicka, who was her immediate superior was not subjected to a hearing in respect of Ms Rowicka's alleged involvement in the self-same incident.
4. In dealing with the matter, it is convenient if we deal first of all with the history of the case itself in some detail as that will enable us to deal firstly with the cross-appeal relating to costs which, in tine, are the earlier Orders that were made. The lengthy hearing had been fixed to start on 19 January 2004 with a reading day and then evidence to start the following day. At 4.40pm on 19 January, a faxed was received at the Tribunal allegedly from Mrs Johnson's home address in Leicester indicating that she was not well, had a medical certificate and would be unable to attend the hearing the following day, 20 January, and a medical certificate would follow. The employers were also sent that certificate.
5. The hearing did convene on 20 January and Mr Johnson, who represented his wife, attended and produced a medical certificate from Dr Bayer in Wembley, indicating that she should refrain from work for two weeks and diagnosing her condition as what appeared to be SBE. On oath, Mr Johnson had said that his wife had been unwell for some time, been under a consultant of immunology at the Clementine Churchill Hospital in Sudbury, seen a consultant the previous week who had wanted to see her again in three or four weeks. He and his wife had come down early from Leicester on the previous day; she had been feeling ill prior to this but then felt worse and went to see the GP that afternoon and had then obtained the certificate. He did say that his wife had been feeling unwell the previous week and had not worked but since she was doing agency work, she did not have a medical certificate certifying her off work.
6. Without going into further details, the hearing was initially adjourned until the following day in order that further clarification of the doctor's medical certificate could be obtained. On 21 January that clarification was not available and the hearing was then adjourned again until the following Monday more information about the illness, in particular what SBE meant and what conclusions the doctor had reached in his examination on 19 January to be made available for the Tribunal.
7. On Wednesday, 21 January, the Tribunal had dealt with some preliminary procedural matters in relation particularly as to who was the employer, when was the date of termination and also dealing with the position of a number of other respondents who had been joined in the proceedings. Certainly by the end of 21 January hearing, the issues had been narrowed down to two namely the issue that we have already set out regarding Ms Rowicka and a similar issue where the comparator was Mr X. There, the discrimination was said to be both sex and race.
8. The first Order for Costs had been made on 20 January, the Tribunal taking the view that, particularly over the last 10 days prior to the date fixed for the hearing, there was ongoing ill-health on the part of the Applicant and that her representative could have done something earlier. When Rimer J gave leave to appeal on the costs appeal, he highlighted the issue as to whether or not that Order was outside the Tribunal's discretion in relation to the fact that Mrs Johnson's illness had become worse on 19 January. Rimer J said:

"It was not obvious to me that her state of health during the previous 10 days was such that it would have been grounds for an adjournment.

This is the ground that Mr Johnson has today adopted in relation to that first Order for Costs.

9. Over-turning an Order for Costs made by any tribunal is very unusual. Costs are a matter for them to consider; whether there has been effectively unreasonable conduct on the part of the party in the conduct of litigation and the Tribunal here formed a view that, irrespective or not of whether the illness became worse on the Friday, there was ongoing ill-health and some steps could have been taken during the previous week, particularly, as the Tribunal noted, that Mrs Johnson was not well enough to work the previous week and had recorded that fact; some steps should have been taken by Mr Johnson to alert both the Tribunal and the other parties to the possibility that the hearing might not proceed.
10. We cannot find any fault in that approach by the Tribunal. It seems to us that the decision they took was within their discretion; we remind ourselves, that the Tribunal heard evidence from Mr Johnson about the matter and had formed some preliminary view of the nature of the illness and its effect on Mrs Johnson the previous week. We cannot find fault with that decision.
11. By the time we get to 26 January, the following Monday, Mr Johnson had indeed collected a clarification letter from the doctor. He maintains that he did not collect it until quite late on the Friday afternoon and did not open it. When the Tribunal saw it and they set it out at paragraph 87 of their costs decision, they reached a conclusion that, indeed, Mrs Johnson was not fit to attend Court and as a result, the hearing on that Monday, had to be further adjourned until, as it happened, dates in July, commencing on 19 July.
12. Again, an Order for Costs was made. The Tribunal took the view that the previous Friday, Mr Johnson could have opened the letter, faxed it to the Tribunal and also the Respondent's representatives; the Tribunal therefore considered that there was wasted time on Monday 26 and awarded the second sum of costs that we have already outlined. Rimer J again felt that there was an issue, possibly to be explored on appeal, in relation to the fact that according to the timing that Mr Johnson gave Rimer J, the letter was not collected until 6pm by which time, it was for all practical purposes, too late to achieve an adjournment.
13. It is not clear from the Tribunal's Decision as to whether or not they asked Mr Johnson what time he collected the letter, but in any event, the issue of Mrs Johnson's health was still at large. It was an issue that had been adjourned over on two occasions the previous week and, as Mr Johnson pointed out to us, the Tribunal were already in possession of a certificate from Dr Bayer, indicating that she would not be fit for a period of two weeks and it therefore seems to us that both the Tribunal and, indeed, the Respondents were already on notice that there was the potential for the case being adjourned again if Dr Bayer's explanation had satisfied the Tribunal, as indeed, it turned out so to do.
14. As far as Mr Johnson was concerned, his understanding was provided he, on the Monday on 26 January, provided a letter which satisfied the Tribunal, it was unlikely that the main hearing was to go ahead. In those circumstances, we are of the view that the Tribunal were wrong in imposing that second penalty for costs. That was really outside their discretion; it was not unreasonable conduct on the part of Mr Johnson in the way that he conducted himself on the Friday and the Monday and we accordingly would set aside that second Order for Costs.
15. We turn now to the main part of the appeal, the employer's appeal against the Tribunal's finding of race discrimination. Mrs Johnson had been employed since May 2000 as a registered nurse at a nursing home in Rowanweald and the facts record that this was a nursing home divided into three units of 15 residents in each; one unit, Arden, was on the second floor, Rheola and Pelena were on the ground floor. Mrs Kisby was the overall manager of Rowanweald and Mrs Johnson generally worked on the night shift, covering Rheola and Pelena, together with two care assistants. Mrs Johnson would be mainly responsible for Pelena; the care assistants would look after Rheola. Ms Rowicka, the white comparator, worked on the day shift on Rheola and Pelena. She was described as a unit manager and was also Mrs Johnson's line manager. There were some background matters that the Tribunal refer to in relation to conflicts within the staff, but the key incident occurred overnight on 25-26 July 2002 and arose from the fact that at 8.30am, Ms Rowicka having come on to her day shift at about 7.40am, visited an elderly patient who had been having problems during the night and, as a result of Miss Rowicka's investigation, she was found to have a broken leg and was taken to hospital.
16. This patient had been seen twice during the early hours of the morning out of her bed on the floor and the employers, in due course, obviously investigated the matter and particularly, Ms Rowicka carried out that investigation as to who had any responsibility in terms of looking after her observation and, in particular, noting that she had suffered this injury. Eventually – this was not until February 2003 – a letter was sent on 4 February which was received by Mrs Johnson on or around 10/11 February, calling her to a disciplinary hearing to consider the allegations, namely that she was aware that this elderly patient had fallen but did not conduct a thorough assessment of her, which resulted in a failure to detect that the hip was fractured, omissions in the nursing home's documentation, particularly failure to fill in an accident form and failure to review the effect of Paracetemol that she had been given at 7.15 and leaving her soiled at the end of her shift.
17. In fact, Mrs Johnson never attended that interview as she was ill. We need not go into the history of what happened; in due course she left alleging constructive dismissal. Miss Rowicka was due not only to have conducted the investigation but, in fact, was due to present the case before the disciplinary hearing which had been arranged for 20 February. Miss Rowicka herself, although the injury was not discovered until some half an hour or so into her own shift, was not required to attend any form of disciplinary hearing.
18. As we have indicated, the issue was defined by the Tribunal, as far as Ms Rowicka has concerned, in relation to the potential race discrimination as between Mrs Johnson and Ms Rowicka in the fact of Mrs Johnson being called to a disciplinary hearing yet Miss Rowicka had not. The issue, itself, did not identify the date on which Mrs Johnson was called to a disciplinary hearing, but there is no doubt from the manner in which the Tribunal considered the matter, that that related to the letter sent on 4 February 2003 which was received by Mrs Johnson a few days later. Her claim was not instituted until 16 June 2003 and on the face of it, that introduced the potential for an issue as to time limits since it is well know that the normal time limit is three months unless a Court considers it just and equitable to extend that limit. It was not suggested, certainly before the Tribunal or, indeed, any other documents that there was any form of continuing discrimination thereafter.
19. Mr Johnson, today, has raised the possibility of continuing discrimination in that because of her illness, the disciplinary hearing had to be adjourned on two occasions and there was a request for her to attend two further hearings. Certainly, one of the requests in April would have brought her within the three month time limit. The issue of time limits was highlighted both in the Respondent's reply, the ET3, and in the submissions that Counsel who appeared below, Mr White, had prepared for the January hearings before, of course, those hearings were adjourned. The time limit issue was not raised by him specifically in the further submissions that he prepared for the hearing which eventually took place in July. The Tribunal Chairman, Mr Mahoney, was asked about that matter and he contends he had no recollection of it ever having been raised at any of the hearings and did not feature in the opening submissions from Mr White dated 18 July, nor was it raised in final oral submissions and he said this finally: "It therefore appears that the point was effectively abandoned".
20. Before us, Mr Brown submits that one cannot abandon time limit issues. They go to jurisdiction and, indeed, they are matters which can be raised even on appeal where they have not been raised below. Many authorities support this proposition. He has referred to us only one, in particular Rogers v Bodfari (Transport) Ltd [1973] IRLR 172 where the late Sir John Donaldson said this at paragraph 13:

"Mr Mitchell, for the appellant, has given us every possible assistance. He has considered this matter very carefully and finally come up with two arguments, and they are these. First, in his submission, once a tribunal has reached a conclusion as to whether a man has been fairly or unfairly dismissed, it is too late to raise the time bar point. As to that, the major difficulty in his way is the decision of this Court in Westward Circuits Ltd v Read [1973] IRLR 138. There the Court held that bearing in mind the wording of para. 5 of the Sixth Schedule to the 1971 Act, the time limit must be regarded and interpreted as a jurisdictional provision – which of course the parties cannot waive – and not as a limitation provision which they can waive or may be stopped from taking"

and later at paragraph 15, he confirms that a time limit, which he calls a jurisdictional point, can be taken at any time. It seems to us that it was incumbent upon the Tribunal Chairman, the issue certainly having been raised before him on the ET3 and in the earlier submissions, to deal with that issue and, if he felt appropriate, consider granting leave for time to be extended or, alternatively, to consider the matter which Mr Johnson now advances, which is that there was continuing discrimination by reason of the further requests to attend disciplinary hearings. It seems to us that this ground alone requires that the case will have to be reheard either by the same or a fresh Tribunal and we will come back to that aspect below.

21. We turn now to the substantive issue and how the Tribunal dealt with it. It is right to say that both, in terms, of documentation leading up to the hearing and Mr Johnson's presentation, the Tribunal had considerable difficulty in identifying precisely what Mrs Johnson's case was and, it is clear that, unfortunately, at times, it seems that the Tribunal became somewhat exasperated with Mr Johnson's attitude. From our brief encounter with him today, we have not formed the same view and we congratulate him on the way that he has presented the case on behalf of his Mrs Johnson. But, as with all lay persons, they have difficulty in identifying at times, the wood from the trees, and what are issues that have to be defined and what are the relevant issues to be put before a tribunal.
22. In the ET1, which one can see on page 66 of the bundle, the Applicant, Mrs Johnson, had left the issue very wide and spoke of race and sex discrimination, compared herself with Ms Renata Rowicka and Mr X, who were not subjected to this "kind of victimisation" and the victimisation that she had listed did include being called to a disciplinary hearing. The matter was never further particularised until a witness statement was eventually received from Mrs Johnson. We have actually not seen that witness statement, although the issues which the Tribunal identified eventually seem to have been taken from that statement.
23. At the beginning of the Tribunal's decision, they described what they called the first issue in relation to Mr X in relation to the discrimination by reason of race or sex in being called to a disciplinary hearing whereas he was not and then go on to set out some further matters by way of background involving Mr X.
24. They defined the second issue, simply in terms of the bare allegation in relation to being called to a disciplinary hearing and certainly at the beginning of their decision, they do not identify any other matters on which they are going to rely by way of background for the purpose of looking at the issue of drawing inferences. They then set out the history of the matter. We do not propose to set it out. Suffice it to say that although it was no means totally certain that this poor unfortunate patient had suffered the injury whilst Mrs Johnson was on duty, there was a strong possibility that it had happened during that period as opposed to the much shorter period when Ms Rowicka was in charge.
25. When the Tribunal dealt with this issue, they record first of all that Mr White, on behalf of the employers, was taking a strong line by submitting that there was really no comparison between the two employees, describing the attempts to compare them as "misconceived, ridiculous and probably vexatious". They do not there set out what Mr White assured, and we accepted, was that the core of his submissions, which was that there was an easily identifiable non-race reason for distinguishing between them because of the likelihood that the injury had occurred during Mrs Johnson's shift, as opposed to the unlikelihood of it occurring during Miss Rowicka's shift. Later on, the Tribunal maintained that no reasons at all were given by Mr White as to why there was any difference but we do not accept that that was correct at all.
26. The Tribunal then set out what they understood to be Mrs Johnson's case in terms of – as they put it – the case put forward by her and they there set out some 11 matters which apparently they have picked out of her evidence in support of her case of discrimination.

"22.1 There was a history of confrontation between the Applicant and Mrs Kisby [that is the manager] before 25 July 2002.

22.2 Mrs Kisby and d Ms Rowicka were friends.

22.3 Any reasonable manager informed of a patient having broken a leg after 0830 hours would be aware that the break could have taken place during the night shift or alternatively at the beginning of the day shift, for which Ms Rowicka was responsible. In those circumstances Ms Rowicka should not have been put in charge of the investigation.

22.4 As X was junior to the Applicant, it was inappropriate for him to be part of the investigating team, given the history of confrontation between X and the Applicant.

22.5 Any reasonable person considering the witness statements of Mr Kekembo, Ms Doyle, the Applicant and Ms Rowicka together with the Daily Statement and Accident Record Book would have seen glaring inconsistencies.

22.6 Further the statements taken were so short and vague as to useless. This would have been apparent to any independent person considering them.

22.7 The history of the matter after 26 July 2002 shows an inconsistent approach to the Applicant compared to Ms Rowicka.

22.8 The grievance meeting on 22 August 2002 appeared to have resolved matters satisfactorily.

22.9 The disciplinary letter dated 4 February 2002 was less favourable treatment of the Applicant.

22.10 Mrs Kisby, Ms Rowicka and X are white. The Applicant is black.

22.11 Therefore a prima facie case of discrimination on the grounds of race has been made out by the Applicant."

Although they start off by setting out these matters as the Applicant's case, certainly by subparagraph 11, they appear to have concluded that they amounted to "prima facie discrimination".

27. Mr Brown complains, with justifiable criticism, about this Tribunal's approach. Although the Tribunal Chairman, in a letter dated 31 January 2005 sought to suggest that the Respondent's Counsel should have been very well aware of all these matters, the Tribunal suggest that in the decision that they themselves had considerable difficulty in working out precisely what Mrs Johnson case was. From a letter received from one of the wing members, Mr Ray, it appears that these 10 or 11 points for consideration – we can call them that – in fact did not appear until the Tribunal were either discussing the case or the Chairman was actually drafting his decision. Mr White tells us in his affirmation quite frankly that he had no idea that these additional matters were going to form part of the sub-strata of the discrimination case.
28. It is also of concern to us but is by no means clear whether the Tribunal were seeking to put these additional matters in by way of further acts of discrimination or simply facts from which discrimination might be inferred. If it be the former, there is clear authority that new acts of discrimination cannot simply be introduced in this way at the thirteenth hour by a Tribunal into their decision. The Tribunal had been very clear in defining what was the act of discrimination and many authorities, particularly cases such as Chapman v Simon [1994] IRLR 124, make it abundantly clear that one cannot introduce further serious acts of discrimination without proper warning being given to the parties and, of course, consideration being given to any time limit implications that may arise. If it be the case that the Tribunal were seeking to draw inferences from these primary facts, again they have not conducted that exercise. What inferences of race can be drawn from the fact that Mrs Kisby and Ms Rowicka were friends? At first sight the contrary inference would be drawn from that that it was friendship and not race that played a part in that part of the analysis of involving those two members of staff; and nowhere within those 10 or 11 points is a proper analysis conducted as to what inferences of racial discrimination could be drawn from those primary facts. Indeed, it is not clear whether primary facts have been properly drawn. For example, at 22.5 they refer in vague terms to "glaring inconsistencies". What primary facts did that disclose that have relevance to the case of discrimination? Again, the Tribunal have apparently ignored considerable evidence suggesting from the records of the witnesses and the documentation the strong possibility that the injury occurred prior to 7.30 that morning.
29. It seems to us that the Tribunal have not conducted what we consider to be the proper analysis, an analysis which is now well-known in all discrimination cases, recently approved of by this Court in Sinclair Roche & Temperley v Heard [2004] IRLR 763 at paragraph 16 of the President's Decision.

"16. It is apparent that, particularly given the reversal of the burden of proof, it is essential that, if the tribunal satisfies itself that there has been on the face of it unfavourable treatment, it has effectively only reached halfway; it must set out clearly its conclusions as to the nature and extent of such unfavourable treatment, and it must then fully and carefully consider, having thus identified the conduct which requires explaining, what the explanations of the employer were, and why, if such be the case, such explanations provide no answer. Against that background we turn to consider whether this Tribunal has complied with its legal obligations in regard to the two questions of referrals and part-time working.

It seems to us that the error in this case was then compounded when one reaches the Tribunal's conclusions where they say this:

"…the Tribunal considers the Applicant has made out on the balance of probabilities facts from the Tribunal could conclude the Applicant had been discriminated against on the grounds of her race"

and they then go on to say

"No explanation whatsoever was put forward by the Respondent; the Applicant succeeds on this issue".

As we have already pointed out, that is a major error on the part of the Tribunal because it is abundantly clear to us from the documents and from what we have seen in Counsel's affirmation that indeed, an explanation was put forward if they were to get to the stage of finding primary facts of less favourable treatment based on race, that the decision to call Mrs Johnson to a hearing as opposed to Ms Rowicka was ground for reasons other than racial ones. Indeed, that was very much part of the Respondent's case before the Tribunal. We therefore fail to see how a Tribunal could make a finding that no explanation had been offered by way of the second stage of any discrimination case.

30. From our criticism, it will become apparent that we cannot allow this decision to stand. We are urged, on the facts of the case, to impose our own view that no finding of race discrimination could possibly follow from the facts of this case. The problem is that the Tribunal have not found facts in many instances; they have raised possibilities, but not come to findings or conclusions and it seems to us that it would be stepping outside our normal sphere of operation if we were to come to conclusions from what we have read and seen. So, regrettably, this matter will have to return to a hearing before a new tribunal who will have to consider the issue of time limits and the issue of race discrimination as set out in paragraph 2.2. of the Tribunal's decision of 29 September 2004 and to further consider the background circumstances set out in paragraph 22 of that Decision.
31. The first costs decision of 20 January - that appeal is dismissed. The second costs decision of 26 January – that appeal is allowed.