United Kingdom Employment Appeal Tribunal

APPEARANCES

 

 

For the Appellant	MS N SIVANANDAN (Representative)
For the Respondent	MS SUSAN CHAN (Of Counsel) Instructed by: Office of the Solicitor DWP New Court Room 549 48 Carey Street London WC2A 2LS

SUMMARY

Race Discrimination

Race Discrimination – claimed based on victimisation. ET1 originally alleged harassment and direct discrimination tribunal correct not to deal with allegation in detail in light of the way that case was presented to them.

Tribunal's reasons more reasons obtained and after preliminary hearing – were they sufficient – he held that they were.

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HIS HONOUR JUDGE ANSELL

1.                   This is a hearing of an appeal from a decision of a London (South) Tribunal who following a hearing which took place in March of last year unanimously decided that the Appellant Mrs Thompson was not treated less favourably on the grounds of her race and her application was dismissed. Her claim essentially was one of victimization in relation to detriments that she said she suffered as a result of having previously made a complaint to a tribunal on the grounds of race.
2.                   Leave for this hearing was given by HHJ McMullen and a tribunal sitting on 20 January of this year when he limited the issues to four in number although one of those issues is sub-divided. We are grateful to Counsel for keeping to the four points which have been raised today and generally not veering off into other avenues.
3.                   We return to Judge McMullen's decision below. The background facts can actually be summarized quite shortly. The Respondents are an agency of the Department of Health with staff who are civil servants although the Secretary of State is devolved upon the Chief Executive of that Agency personnel matters. Mrs Thompson joined the Department of Health in 1979, rose to the rank of IP2, and obtained a Masters in Business Administration in 1996. It is not clear when actually she transferred to the Agency but she became in charge of a team of five people in the Inspection and Enforcement Department. In 2001 she presented the application which forms the basis for the victimization claim that this tribunal had to deal with and ACAS began brokering an agreement in March 2002 although in fact it took a considerable amount of time for that to be completed.
4.                   Her complaints were related to the way that she was treated thereafter in attempts to find her alternative employment within either the Agency or the Department of Health. We need not go into the details of each and every allegation but the tribunal dealt with a number of instances in relation to the way that she was treated by the overall superiors, Mr Le Fevre who was Human Resources manager, Mr Savage the Finance Department manager, and then at a lower level, Miss Orhiere who was her immediate manager, and Mr Bashar who replaced her. The complaints related to attempts to find her alternative jobs, jobs that she was found which she did not like, meetings that took place and the general attempts to sort out her problems. The tribunal coming to a overall conclusion that the prime causes of the Appellant's difficulties were two fold; one being the decision on the part of the Department of Health in January 2003 to make reduction in their staff numbers which effectively made it more difficult for her to be re-located; and the second major factor they found to be the inaction by Mrs Thompson herself in not applying for posts which might become vacant combined with the fact that she did not take to her new post in finance.
5.                   As we have indicated Judge McMullen identified four issues to go forward to this full hearing. He also noticed that there were two paragraphs 27 in the Tribunal's Original Decision and suggested that the second of those should be re-numbered 27a. There was also two issues which he required the tribunal chairman to comment upon and those issues will become apparent below.
6.                   The Tribunal took it upon itself to issue a further decision dealing with the problems concerning paragraph 27 and what they did was to attach the original '27' to the end of '26' and the '27a' as suggested by Judge McMullen the same became simply paragraph 27. However, in addition some of the wording in the decision was altered and we are concerned about that. Indeed we are concerned how the amended decision was promulgated in its present form because parts of it simply are not comprehensible. We refer in particular to what has now become the beginning of paragraph 26 which is not the same as the original paragraph and also the fact has been pointed out to us that at the end of new paragraph 26 the word 'unpleasant' has replaced the earlier word used 'unfavourable'. We would hope that our comments can be reported back to the Chairman to make sure that what we regard in part certainly is not the best quality work would not be repeated. Parties who come to a tribunal hearing and then receive Reasons are entitled to receive a document that looks as though someone has actually been through it and checked that it is correct. It looks to us that it was not checked. On behalf of the Tribunal service, we can only apologize to the parties for the document as it emerged and is before us now.
7.                   We turn to the four matters which have been raised in this Appeal. As we have already indicated the tribunal in going through the various incidents came to a view that none of them arose as a result of this lady having made a previous complaint. At the end of the paragraph that dealt with their conclusions they said this:

"Most telling of all was the statement of Ms Abram her trade union representative and a very experienced person in the Department of Health that on her observation Mrs Thompson's treatment by the Respondents was not motivated by the fact that she had complained of race discrimination."

8.                   The Complaint before Judge McMullen which has gone forward was firstly whether or not Mrs Abram ever made that comment in that form or any other similar form, and secondly whether it was right for the tribunal to give such emphasis to a piece of evidence which the Appellant says appears to deal more with motivation rather than facts and, might be said in a sense, be usurping the Tribunal's own function in coming to a conclusion as to whether or not the way that this lady was treated resulted from her previous complaint.
9.                   We have a variety of documents to assist on what was said by Mrs Abram. Mrs Abram herself had already filed a statement before Judge McMullen saying that she did not remember being asked about this matter. The Chairman has been asked about it and he has responded in a letter, that is Mr Booth, and he said his Note had been checked, as has the member's Note. The question he records was:

"Was she disadvantaged because of her complaint so far as you could see?"

The answer is:

"No."

Although the members note that the phrase that he used was:

"the mark of Cain is upon her"

because she had complained. And the 'mark of Cain' is the phrase that actually appears first of all in the Note from the Respondent's solicitor and we are grateful for that detailed Note where the question that was forwarded is:

"Was the mark of Cain on Margaret Thompson because she complained?

And the answer is:

"No."

Similar question recorded by Mrs Thompson's sister who has prepared a Note

"Was there a mark on Margaret because she complained?"

Answer:

"I don't think so."

So other than that slight variation in terms of the answer we are satisfied overall considering all the versions that Mrs Abram was asked about the matter and she was asked in terms:

"Was there a mark, or a mark of Cain upon her because she had complained?"

And the answer was no.

10.               It is unfortunate in our view that the Tribunal have indeed used the phrase "motivation" because motivation never appeared in the question and never appeared in the answer that Mrs Abram was asked. We accept of course that motivation is not a phrase necessarily that is to be encouraged in any discrimination case and we are acutely aware of the warnings that have been given by higher courts in relation to the dangers in looking for motivation or otherwise because discrimination is often not a matter of conscious motivation but sub-conscious or indeed unconscious motivation. We are conscious of the dangers of asking about motivation.
11.               Should this piece of evidence have been taken into account? We are satisfied that matters of evidence generally are matters for the tribunals, as to what weight is given to them. We are reminded of a number of passages particularly in one of Eclipse Blinds Ltd v Wright [1992] IRLR 133 where the Court of Session said this:

"The weight to be attached to any evidence in any case is a matter for the tribunal."

12.               We are of the view that it was appropriate for them to give consideration, if they wanted to, to Mrs Abram's view of matters. In simple terms she was being asked no more or no less than from her perspective was the treatment this lady suffered sustained in any way because of the fact that she had previously made a complaint. We have to remember that this lady was Mrs Thompson's own trade union representative and was present for a great deal of these events and, it seems to us that it was legitimate for the tribunal to take this evidence into account although, the use of the phrase "not motivated" was unfortunate.
13.               Whether or not they needed to use the expression "most telling" does not seem to us to be of the utmost importance since there was an abundance of other evidence detail in the decision where they had come to conclusion that the events which occurred were not related in any way to the previous complaint. We are satisfied that the tribunal were merely adding into the equation the evidence that they had heard from Mrs Abram, as it were as the spectator to everything that had occurred; a spectator, who for the Tribunal viewed would not be unfavourable to Mrs Thompson being her own representative. Accordingly, we could find no substance in the first ground of the complaint.
14.               The second matter relates to the findings or otherwise that may have been made in relation to the knowledge of the managers who were the alleged perpetrators of the unfair treatment following the protected act. It is a defence for those who have carried out alleged acts of victimisation to show that they did so without knowledge of the previous proceedings, so that it cannot be said they acted because of those proceedings. The issue of knowledge did not actually figure in the Tribunal's conclusions. They concluded on the facts of each incident, and looking at the incidents as a whole they were prompted because of the staff problems and inactivity in looking for a position.
15.               They recorded in paragraph 26 that the Respondent had made a submission and again it is an unfortunate use of words which does not make particular sense, that:

"Any of the parties who had been in charge of the particulars of her complaint to the Tribunal"

There was a reference to the submission made, not in final written submissions but in oral submissions, that certainly the two junior managers who had been involved in these matters did not have knowledge of the previous proceedings. It was not in dispute that Mr Le Fevre and Mr Savage had knowledge of the previous case. Judge McMullen thought that the tribunal should have reached a conclusion on that issue, and obviously that would provide a defence for certainly two of the alleged perpetrators. The Tribunal Chairman in his letter of 14 March 2005 when dealing with Mrs Abram's evidence also dealt with this matter, and again in a somewhat confusing and elliptical way, he said this:

"The Respondent's submissions at paragraph 27 of the Decision as set out in paragraphs 30 and 31, in particular the second and third sentences in paragraph 30 beginning 'They had found her work to do despite long periods of sickness over a period of nearly 18 months. They had approached the Department of Health, they had circulated the agency that had asked for her CV.' And the sentence in paragraph 31 'Thereafter the agency…' I hope these sentences make it clear which we accepted the Respondent's submission that there was no evidence of her managers in the finance division knew of the contents of her complaint to the Tribunal and that her treatment even if unfavourable, which we did not find, was not on account of her complaint."

16.               We do not necessarily accept that the decision as originally drafted made it clear that they were making findings of knowledge. There is no reference to knowledge in those findings. The Chairman's comments are also confusing to this extent that Mr Savage was also a manager in the finance division and it has never been suggested other than he had knowledge of what was going on. Overall, we read the letter of 14 March as no more than saying that effectively the two junior managers, whose names we have already mentioned, did not have knowledge of the previous proceedings.
17.               Ms Sivanandan before us has attempted to show that there was evidence that this was a perverse conclusion but she has only been able to produce one memorandum which is dated after the events took place, 30 September 2003, where Mr Bashir and Miss Orhiere have been copied in on an email between, Le Fevre and Mr Savage which refers to the settlement agreement as yet uncompleted that related to the previous proceedings. At the end of the day the Chairman's supplementary conclusions do no more than provide an additional defence certainly to the two junior staff that they had no knowledge of these matters. Again, we can find no substance in the complaint.
18.               Finally, we turn to the complaint that the tribunal made no findings in relation to harassment or direct race discrimination. The complaint emerges because it is said certainly from the IT1 and, more particularly from a Directions Hearing that was heard in this case in November 2003 before Miss Stacey (sitting alone) that issues in relation to direct discrimination and harassment were left as potentially live issues in this case. Harassment would be a very limited because the harassment provisions only came in on 19 July 2003 and the IT1 in this case was presented some three or four weeks later in August by which time effectively most of the incidents had taken place.
19.               The Tribunal however, were no doubt conscious of the fact that as a result of Miss Stacey's directions final and full particulars had to be put in by Mrs Thompson of her case. At the beginning of that document there is a recital in these terms:

"My complaint is of an on-going course of victimisation, harassment resulting from the previous tribunal claim of race discrimination made in August 2001."

Quite clearly within that document she was nailing her flag to the mast of victimization, and indeed, she also did so at the beginning of her Witness Statement, where she says this:

"I am bringing this claim on the grounds that I have been subjected to an ongoing course of victimisation and harassment resulting from a previous Tribunal…"

We understand harassment in that sense to be used rather than the specific legal sense under the regulations to be used in the more general sense of how she claims she was unpleasantly treated by members of staff.

20.               The Tribunal dealt with that issue in this way at paragraph 2:

"the particulars when reached contained no mention of items in support of claims of direct discrimination and harassment and therefore we concentrated upon the principle allegation of victimisation"

And at the very end of their case they say this:

"That they have been conscious of the need to try and as they say keep their eye on any evidence of direct discrimination or harassment, to the avoidance of doubt we should state that we found none, and therefore even if that matter had been pleaded, it would still have been dismissed."

21.               The complaint made is that the Tribunal should have picked up the fact that at an earlier stage that there was the potential for these claims and should have dealt with them. However, the fact remains that by the time the case reached the final hearing the documentation before them in terms of the particulars and the Witness Statement made it abundantly clear that the case was a victimization claim. We have asked for any particulars which were given to the Tribunal in relation to direct discrimination within the Witness Statements. There is mention of comparators but it is by no means clear to us whether those comparators are in relation to direct race discrimination or, indeed, in relation to victimization, and really by the end of her submissions, Ms Sivanandan had to concede that it was by no means clear that there were any direct race comparators ever put before the Tribunal.
22.               In terms of harassment there was the potential for a claim in relation to incidents post 19 July but the Tribunal have made no findings in relation to any incidents after that date. We read the final sentence of paragraph 31 as the Tribunal saying we just cannot find any incidents that will begin to substantiate either of these claims and that is why we are not dealing with them. It is said that that final sentence is not, Meek compliant, we cannot agree. We read that final sentence as we indicate already, simply as the Tribunal's inability to find any incidents to meet the requirements for harassment or direct race discrimination. We repeat this case was presented before the Tribunal quite clearly on victimization that was the way that this lady chose to present the case, she put before them particulars which run into ten or eleven pages within which there is not a specific reference to harassment or direct race discrimination. We cannot fault the Tribunal for taking the action that they did with the reservation of course that they had in the back of their mind, as I have indicated, the necessity just to check that no specific incidents had emerged that could in any way be considered as direct race discrimination or harassment. No incidents did emerge and they were entitled to conclude as they did.
23.               For the reasons therefore that we have indicated we would dismiss this Appeal.