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United Kingdom Employment Appeal Tribunal
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Hamill v. Islington [2005] UKEAT 0409_05_2411 (24 November 2005)
URL: http://www.bailii.org/uk/cases/UKEAT/2005/0409_05_2411.html
Cite as:
[2005] UKEAT 0409_05_2411,
[2005] UKEAT 409_5_2411
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BAILII case number: [2005] UKEAT 0409_05_2411 |
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Appeal No. UKEAT/0409/05 |
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
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At the Tribunal |
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On 24 November 2005 |
Before
HIS HONOUR JUDGE PETER CLARK
LORD DAVIDES OF COITY CBE
MRS D PALMER
MR D HAMILL |
APPELLANT |
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THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF ISLINGTON |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
© Copyright 2005
APPEARANCES
For the Appellant |
MR G WONG (Of Counsel) Bar Pro Bono Unit
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For the Respondent |
MISS N JOFFE (Of Counsel) Instructed by: London Borough of Islington Law & Public Service Department Town Hall Upper Street London N1 2UD
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SUMMARY
Race Discrimination and Practice and Procedure
Full hearing. Employment Tribunal failed to deal with one aspect of Claimant's victimisation claim. Remitted to same Employment Tribunal (Sinclair Roche considered) for determination of specific issue.
HIS HONOUR JUDGE CLARK
- This is an appeal by Mr Damian Hamill against a judgment of the London Central Employment Tribunal, promulgated with Reasons on 17 January 2005, dismissing his complaints of direct racial discrimination and victimisation brought against the Respondent, the London Borough of Islington.
Background
- The Claimant was an agency worker employed by THS Resourcing Ltd. Between 16 February and 16 March 2004 he was assigned to work as a Technical Administration Officer at the Respondent.
- At 10.56 a.m. on 15 March the Respondent's Chief Executive circulated an e-mail to all staff inviting them to attend a 3-minute silence at 11.00 a.m. outside Islington Town Hall as a mark of respect for the victims of the Madrid train bombings which had taken place the previous week. The team in which the Claimant worked were based in offices half an hour away from the Town Hall. Asked by a colleague whether he was off to the Town Hall, the Claimant sang, "No, I'm off to sunny Spain (Viva L'Espagna)", in what the Tribunal described as a spirit of levity. There was then talking and laughing in the Claimant's workplace during the designated 3-minute silence.
- A manager, Mr Hutchison, on the floor below the Claimant's team sent an e-mail to Mr Litherland, a senior department manager, complaining about misbehaviour. Mr Litherland interviewed the Claimant about the matter between 1.35 p.m. and 1.55 p.m. that day. There was a factual dispute as to the precise contents of that discussion. The Tribunal preferred Mr Litherland's account for reasons set out in paragraph 13 of their Reasons. It was, in summary that the Claimant readily agreed to apologise for his behaviour earlier in the meeting; this was to take place the following morning in Mr Litherland's presence. Mr Litherland probed the Claimant's motivation for what he regarded as a stupid act of disrespect in singing. Mr Litherland noticed from his accent (as was the case) that he originated from Northern Ireland and sought an apology which might convey the need for sensitivity towards others. The Respondent operated a 'Dignity for All' policy. The Claimant said that he had the right to freedom of expression: he also objected to his national origins being brought into the discussion.
- It might be thought that the matter would be closed by the Claimant's apology the next day. But it was not. The Claimant decided to take a stand. First he e-mailed Mr Litherland retracting his agreement to apologise. Mr Litherland first saw that e-mail the following morning. He spoke to colleagues senior to him, Mr Ready and Mr Gilby, and they agreed that in those circumstances THS should be asked to terminate the Claimant's placement with the Respondent.
- This led to a debate between Mr Pidgen, the Area Director of THS and separately, Mr Gilby and Mr Litherland. Mr Pidgen then persuaded the Claimant to apologise on the basis that a warning would be placed on his file at THS. The Claimant e-mailed what he described as a without prejudice communication to Mr Litherland who had not agreed to his reinstatement. Mr Litherland responded the following day thanking the Claimant for his apology and hard work and wishing him well in his future appointments.
- On the previous afternoon the Claimant had e-mailed Mr Pidgen asking THS to instigate a formal complaint against Mr Litherland on the basis that during the initial interview Mr Litherland had introduced the Claimant's Northern Irish origins. The Claimant decided to pursue that complaint on 17 March. Mr Pidgen was furious, thinking that the Claimant had thereby undermined his efforts on his behalf and that the reinstatement was off.
- The Tribunal found that Messrs Ready and Gilby were prepared to reinstate the Claimant, thus overruling Mr Litherland's objections, but in view of his current attitude, describing his without prejudice apology to Mr Litherland as being made under duress and accusing Mr Litherland of what the Tribunal describe as scandalous conduct, they concluded that this undid the sincerity of his apology and made reinstatement out of the question.
- Although not directed to agency workers the Respondent activated their internal grievance procedure. Mr Ready carried out an investigation interviewing other staff involved but not the Claimant. He produced what the Tribunal described as a cursory report rejecting the Claimant's complaint against Mr Litherland. The Claimant did not return to work for the Respondent.
The Tribunal's Conclusions
- The Claimant's case on direct discrimination and victimisation was summarised by the Tribunal at paragraph 1 of their Reasons thus:
The Claimant complains that he was treated less favourably by the Respondent on the grounds of his Northern Irish national origin, in that:
(i) A higher standard of behaviour was expected of him by Mr Litherland, the Respondent's senior manager.
(ii) He was treated more harshly than others by Mr Litherland.
(iii) When he protested, the Respondent procured the termination of his placement as a temporary contract worker with it.
(iv) It also tried to procure disciplinary proceedings against him by his employing agency and generally exerted indirect pressure on him to withdraw his complaint.
(v) The Respondent refused properly to deal with his grievance and complaint in an attempted whitewash.
(iii), (iv) and (v) above are alternatively complaints of victimisation because he had made a complaint of race discrimination against the Respondent.
- The Tribunal concluded:
(1) That the Respondent's treatment of the Claimant had nothing to do with his national origins; it was to do with his sign of disrespect to the Madrid bomb victims and his subsequent retraction of his initial apology.
(2) Mr Monaghan, an employee of the Respondent who was of Southern Irish origin had also shown levity on the occasion of the 3-minutes' silence. He was a permanent employee of the Respondent, however, he had admitted that he was ashamed of his behaviour and agreed to apologise. He did not withdraw that offer. He was not, found the Tribunal, an appropriate comparator within the meaning of s.3(4) of the Race Relations Act 1976 (RRA).
(3) The Claimant had not made a claim of race discrimination to the Respondent, as opposed to Mr Pidgen of THS, before the decision to terminate his work placement was made. Accordingly s.2 RRA was not engaged.
(4) The Respondent's investigation of the Claimant's complaint against Mr Litherland was less than satisfactory. It was a fact which raised a prima facie act of discrimination. They looked to the Respondent for an explanation. That explanation is summarised at paragraph 32 of their Reasons. It was accepted by the Tribunal who found that any short-term agency worker would have been dealt with in exactly the same way.
(5) As to victimisation, again the Tribunal found that a hypothetical comparator, that is a short-term temporary agency worker who had made a complaint of any other kind would not have been treated differently.
(6) Even if less favourable treatment had been made out the Tribunal was satisfied that the protected Act was not part of the Respondent's reason for handling the investigation of the Claimant's complaint unsatisfactorily.
The Appeal
- The initial Notice of Appeal drafted by the Claimant in person was initially stayed pending a review application and then rejected by HHJ Prophet under the Rule 3(7) procedure. The Claimant exercised his right to an oral hearing under Rule 3(10). That hearing took place before HHJ McMullen QC on 7 July at which the Claimant was represented by Counsel, Ms Emma Smith under the ELAAS pro-bono scheme.
- By Judge McMullen's order dated 11 July Grounds 1, 3, 5 and 6 of an Amended Notice drafted by Counsel were permitted to proceed to this full hearing. As to Grounds 2 and 4 questions were to be put to the Tribunal under the Burns Procedure, since approved by the Court of Appeal in Barke v Seetec [2005] EWCA Civ 578.
- The Tribunal Chairman, Ms Stewart, responded to those questions on 3 August. The EAT order provided for the Claimant to make written submissions as to Grounds 2 and 4 following receipt of those comments by 12 August for consideration by Judge McMullen on paper under the Rule 3(10) procedure. He did not do so.
- At the outset of this hearing we enquired of Counsel as to their understanding as to the status of Grounds 2 and 4. Having heard argument we ruled that those Grounds should be considered along with the remaining grounds, Miss Joffe being prepared to deal with them, but on an inter partes basis.
- We say at once, having considered argument on all six grounds of appeal that there is only one point in this case. That point is taken in Ground 3.
- It is clear from the written closing submissions below, as Miss Joffe accepts, that the victimisation claim in relation to the termination of the Claimant's placement with the Respondent fell into two parts:
(a) the initial decision to terminate the placement taken by the Respondent on 16 March. On the Tribunal's findings of fact the first protected act was the Claimant's complaint in a letter hand delivered to the Respondent on 17 March of racial discrimination by Mr Litherland. It followed that the act complained of could not be causally connected with that protected act which post-dated it. The Tribunal so found at paragraph 28 of their Reasons. There is no appeal against that finding;
(b) the decision taken on 17 March, after the Claimant's letter had been delivered, that his reinstatement was out of the question. Thus the critical issue for the Tribunal was whether the real reason for the treatment complained of, a refusal to reinstate the Claimant, was the fact that he had complained of racial discrimination by Mr Litherland, see Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830 (House of Lords).
- Mr Wong submits that the Tribunal failed to answer that material question. Miss Joffe accepts that there is no express finding, but argues that on the basis of the Tribunal's findings of fact, particularly at paragraph 19 of their Reasons, the Tribunal found that the sole reason for the Respondent's refusal to reinstate was the view formed by Messrs Ready and Gilby that the sincerity of the Claimant's apology was effectively undone by the contents of his letter. That was the reason for the treatment complained of.
- We have carefully considered whether the Tribunal's findings as a whole permit us to reach the conclusion that they implicitly rejected, after proper consideration, the second way in which this part of the Claimant's victimisation claims was put. We are unable to do so.
- We bear in mind Lord Nicholls' dictum in Khan, following, in the context of direct discrimination, the House of Lords decision in Nagarajan v London Regional Transport [1999] IRLR 572, that it is for the Tribunal to discern what, consciously or unconsciously, was the Respondent's reason for the treatment complained of. Whilst, at paragraph 19, the Tribunal accepted the evidence of Messrs Ready and Gilby that the sincerity of the Claimant's apology was undermined by what he had said in his letter of 17 March, there is no indication that they considered what was their reason or their reasons, conscious or unconscious, for deciding that reinstatement was out of the question. There is no finding of fact as to each manager's knowledge of the contents of the letter. Each apparently said that they were unaware of the complaint of racial discrimination until 18 March. Both said they heard about the letter from each other. Both could not be correct in that.
- In these circumstances we are driven to accept Mr Wong's submission that, on this aspect of the claim, the Tribunal's reasons are not Meek compliant. Before dealing with the consequences of that finding we should first dispose of the remaining grounds of appeal.
- Taking them in the order submitted by Mr Wong:
(1) Ground 4.
The original complaint was that the Tribunal did not deal with the issue between the parties that a Mr Tom Barnes was an appropriate comparator in the claim of direct discrimination. The Tribunal have now dealt with the point, following the Burns referral, in the Chairman's Comments of 3 August. We accept their finding that he was not a true comparator for the reasons there given.
(2) Grounds 1 and 6
The first ground of appeal relates to the Tribunal's preference for the account given by Mr Litherland of his initial interview with the Claimant. The complaint here seems to us to be directed towards the Tribunal's permissible finding of fact. No point of law is raised. Ground 6 relates to the submission that the Respondent's management did not refer the complaint about the Claimant, as an agency worker, to the Human Resources Department as the Respondent's policy required. We accept Miss Joffe's submission, contained in her skeleton argument which we did not require her to develop orally, that there was no free-standing complaint of direct discrimination/victimisation arising from this failure. In our view it was not a necessary finding for the Tribunal to make.
(3) Ground 5
Attention here focuses on a comment made by the Tribunal at paragraph 36 of their Reasons that there seemed to be no reason why Mr Litherland would discriminate against the Claimant (who was Northern Irish) and not Mr Monaghan (who was Southern Irish). We find that an odd comment, since the Tribunal had found that Mr Monaghan was not a true comparator. It is not clear whether the sub-text was that no distinction can be drawn by persons of North and Southern Irish origins. If so, it is an immaterial consideration. However, we are not persuaded that that comment either informed or undermines the Tribunal's relevant findings in their Reasons.
(4) Ground 2
Mr Wong advanced no separate submissions to those contained in the amended Notice of Appeal. The point was adequately dealt with, it seems to us, by the Tribunal in the Chairman's comments by reference to specific findings in their original Judgment reasons. It concerns the question as to whether the Claimant was employed by the Respondent (see for example the discussion in DACAS v Brook Street Bureau (UK) Ltd [2004] IRLR 358, Court of Appeal). The Tribunal found that he was genuinely dealt with by the Respondent as an agency worker, not an employee to whom the Respondent's disciplinary procedures applied. We cannot see that this point has any real relevance to the Claimant's complaints of discrimination/victimisation.
Disposal
- It follows that we are concerned only with the matter raised in ground 3. We uphold the submission that the Tribunal failed to give adequate reasons for dismissing ground (b) of the victimisation claim as we have earlier identified it.
- We accept Miss Joffe's submission that this point should be remitted to the same Tribunal for adjudication. Applying the principles in Sinclair Roche & Temperley v Heard [2004] IRLR 763, cited without disapproval by Lord Justice Dyson in Barke, (see paragraphs 31 and 38) we have concluded that there is no ground for gainsaying this Tribunal's professionalism in dealing with the point on remission. It is proportionate to ask the same Tribunal, seized of the case, heard one year ago, to fill the gap in their reasoning, just as they were asked to do by Judge McMullen in relation to grounds 2 and 4. The difference is that we shall allow the appeal and remit the case for rehearing by the same Tribunal on this limited point. A hearing will be necessary. We do not accept Mr Wong's submission that in carrying out this exercise the Tribunal will inevitably be open to the charge of partiality or the appearance of bias.