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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Khan & Anor v The Home Office [2006] UKEAT 0026_06_1711 (17 November 2006)
URL: http://www.bailii.org/uk/cases/UKEAT/2006/0026_06_1711.html
Cite as: [2006] UKEAT 26_6_1711, [2006] UKEAT 0026_06_1711
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| At the Tribunal | |
Before
HIS HONOUR JUDGE McMULLEN QC
MRS R CHAPMAN
MR R A LYONS
1) MRS M KHAN
2) MRS I O KING
APPELLANTS
THE HOME OFFICE RESPONDENT
2) MRS I O KING |
APPELLANTS |
| RESPONDENT |
Transcript of Proceedings
JUDGMENT
JUDGMENT
- What happens when one of Britain's least impressive managements, by its sole consistent attribute of procrastination, drives two long-service Asian women to become uncooperative and dismissive? The answer is systemic race and sex discrimination against them and dismissals unfair according to every tenet in the canon, rightly found by an Employment Tribunal and wisely not appealed. Sophisticated employment procedures applicable to the two cases, collectively consulted on and agreed over the years, have been left in wreckage by the mismanagement over 15 years of no less than 101 HR professionals and managers, some disingenuous and blind to discrimination. It reached its nadir when its HR director, steering this organisation of 8,000 people, single-handedly by his misjudgement caused the hearing to be aborted after eight days at enormous cost to the women and to the public purse, with the result that they had to give their evidence all over again, one year later, before a different Employment Tribunal and at a different hearing centre.
- This complex case is about automatic and ordinary unfair dismissal, redundancy, discrimination, victimisation and harassment on the grounds of both race and sex, detrimental treatment and dismissal for making a public interest disclosure, unlawful deductions from pay, breach of contract, costs, and Employment Tribunal procedure in giving reasons.
- The Judgment represents the views of all three members. We will refer to the parties as Claimants and Respondent unless an individual Claimant is required to be identified. Their circumstances are identical. We will identify the shift disturbance allowance as the allowance.
- It is an appeal by the Claimants and the Respondent in those proceedings against a Reserved Judgment and a Reserved Review Judgment, and additional reasons in answer to questions raised by the EAT of an Employment Tribunal sitting at London (Central). The hearings took sixteen days and three days in Chambers and resulted in combined reasons of 67 pages, following the examination by the Tribunal of over 20 witnesses and 5,000 pages of documents.
- The Tribunal was constituted as Mr A Stuart, Chairman, Mrs D Harlow and Mr C J Storr. The parties were represented respectively by Mr Imtiaz Aziz of Crescent And Star Consulting and Mr Adam Tolley of Counsel. The Claimants made the case summarised above in five identical pairs of claims between 16 December 2002 and 4 May 2005, falling under headings by the Employment Tribunal as now relevant:
- During the course of nine case management discussions the Claimants' case was organised into 41 separate complaints. It is important to note, however, as we have cited above, that the presentation of those issues to the Employment Tribunal was based upon the convenient groupings set out in accordance with Mr Aziz's assistance. That was the road map the Tribunal was invited to follow and we reject criticisms made by Mr Aziz that the Tribunal has failed to deal with every one of the 41 complaints. We also make it clear at the outset that we reject the criticism that the Tribunal failed to give adequate reasons for the Judgment, which it made on the relevant point in issue.
- We hold that by the combination of the substantive Judgment, the Judgment on review and the additional reasons supplied in answer to the EAT, the Tribunal has discharged its duty to the parties to give reasons. This was a careful and conscientious Judgment in a very complex case, enabling us to see clearly the findings and the reasoning behind the conclusions. The Respondent denied the claims but admitted dismissal, that the Claimants had done protected acts for the purposes of victimisation and made protected disclosure for the purposes of whistle-blowing claims. It contended the dismissal was for redundancy and contended some aspects of the case were out of time.
- The essential issues were defined by the Employment Tribunal as follow:
- The Tribunal dismissed the majority of the Claimants' individual complaints under the headings listed above. It decided in their favour that only two complaints were out of time, that they had been dismissed unfairly for redundancy, that they were unlawfully discriminated against in the handling of their grievances, both on race and on sex grounds, that the Respondent had failed to pay them the allowance they were due and in its award of the contribution to the costs. The Tribunal also found that the burden of proof shifted to the Respondent in a number of respects so that the Respondent was required to produce an explanation. This explanation was accepted and thus the Claimants failed at the second stage, for the Respondent's explanations were accepted, apart from those findings relating to grievances which we have cited above.
- The Respondent also appeals the allowance and the costs issues. Of the fifteen aspects of the Judgment the Claimants thus appeal seven, the Respondent appeals two, leaving undisturbed three findings against the Claimants and three against the Respondent.
- Extensive directions sending this appeal to a full hearing were given on a number of occasions. We need not recite the procedural history, which explains the delays at the Employment Tribunal and the EAT: see for example the Judgment on 24 July 2006 of HHJ Serota QC and members now sitting today with me.
- The relevant provisions of the legislation are concisely summarised by the Employment Tribunal and we adopt that summary since both parties rely on it. It is as follows:
- The Tribunal directed itself by reference to what we hold to be the leading authorities, which are cited in paragraph 86(xviii):
- To these must be added procedural rules relating to costs as applicable at the time, namely the 2001 Employment Tribunal Rules, rule 14:
- The Claimants are interpreters of Asian origin. Mrs King is Asian-Iranian of Armenian decent and speaks Farsi. Mrs Khan is Asian-Indian of Sikh decent and speaks Indian languages. Both are British citizens. They are members of the PCS Union. They were employed respectively from 1979 and 1985 until 4 February 2005, when they were dismissed on the ground of redundancy. The main actors in this drama are: Mr Stephen Barnett, the then Senior Director of the Immigration and Nationality Department of the Home Office HR Department; Mr Jon Wild, his Deputy Director; Ms Frances Ackland, Deputy Director; Ms Sue Murrell, Assistant Director, and; Ms Sarah Young, Head of the Equality and Diversity Unit, and Mr William Jeffrey, then Director General of IND. The Tribunal found the facts as follow:
- There was no substantive response to this until 20 September 2002. 101 HR and line managers were engaged in the enquiries relating to the Claimants' issues. The Claimants were on sick leave and ready to return. They did not want to return to London Heathrow Airport Terminal 3. They were put on special leave. On 30 October 2002 there was a meeting with Mr Barnett. Action points were agreed. This was said of them shortly thereafter:
- Representations were made to them on a number of significant occasions relating to the continuation of their rate of pay but it is fair to say that some of these in the later stages are capable of being references to continuation of their pay if they took alternative work. Yet at the same time none of these letters indicates any reduction in their pay during their continued period of employment as interpreters.
- In December 2002 the first claim in this case was submitted to the Employment Tribunal. They were then litigants in person. They were offered postings in a department known as IBU, which was immediately accepted by the Respondent to be unsuitable and they were only there for one day, 6 January 2003. On 14 February 2003 management wrote as follows:
- On 30 April 2003 there was a meeting. It is suggested that on that date the dismissal process appeared to start. There then began a long period, during which management attempted to get the Claimants to change their stance and take alternative work:
- During this time a number of grievances was presented by the Claimants. The Tribunal then said this:
- The Claimants were dissatisfied and wrote saying so. The Tribunal then went on and found this:
- The reference to the letter of 22 November 2004 is accepted to be an error, for this was merely a draft which the Claimants did not see. There can be no criticism of the Tribunal for this but it is the common position today. Nevertheless, it is relied on by the Claimants as evidence of a decision having been made by management at or before that date. On 28 January 2005 Ms Ackland wrote this:
- They were dismissed by letter on 4 February 2005 with six months' pay in lieu of notice, as against their entitlement to three months' notice. A formal appeal letter was launched, thereafter they moved through the appeal process, which has built in time periods for various stages to occur. There has been no criticism of that timescale, nor of the reasons for the apparent delay in hearing the appeal which occurred on 13 June 2005. It was unsuccessful.
- Relevant to an important issue of construction in this case are documents dealing with special leave. The provisions on special leave include the following:
- The examples given, all of a domestic nature, are initiated by the employee. The Claimants were regular shift workers and were entitled to the allowance. The allowance could be withdrawn on four weeks notice of transfer to day duties. There is special provision for the continuation of shift allowance in the following circumstances:
- The Civil Service Compensation Scheme (CSCS) is available to make payments for redundant employees but it does not apply if they refuse to accept futable alternative employment reasonably. We have not been taken to the detail of this scheme.
- With that very brief summary of the facts we will deal with the legal conclusions reached by the Tribunal.
- The Tribunal upheld the Respondent's case that the reason for dismissal was redundancy, having referred to section 139(1)(b) of the Employment Rights Act 1996 The requirements of the Respondent for employees to carry out the work of interpreters had ceased because that work was, for business reasons, being done by freelancers. The facts that the decision was "lost in the mists of time", and that Mr Wild erroneously believed that at one stage they could not be made redundant because of their contractual terms, were irrelevant to that finding. The Tribunal went on to say this:
- The Claimants would not let sleeping dogs lie and pressed for a resolution of their grievances. The way in which they were treated fell below the standards of a reasonable employer. There was condign criticism of the failure by the Respondent to follow its own redundancy procedures. For nine explicit reasons these dismissals were unfair, contrary to section 98(4) of the Act.
- The Tribunal dismissed the claims for whistle-blowing both on detriment and dismissal. The Claimants' case that they were protected disclosures was accepted from 2001 but the Tribunal rejected the Claimants' case that the refusal to pay them CSCS compensation was to do with those disclosures. The Tribunal found that the decision was in no way connected to any particular event or complaint. It was a decision that the Respondent believed it had the right to make because it judged the Claimants had refused suitable alternative jobs.
- There is no dispute that the Tribunal constructed a hypothetical comparator correctly. There is no challenge to its finding that the Claimants had presented sufficient facts from which it could be concluded in the absence of an adequate explanation that the Respondent had committed race discrimination against them. In doing so the Tribunal considered the answers given by the Respondent to questionnaires raised under the Race Relations Act and the Sex Discrimination Act. It drew adverse inferences from the answers given. But it also indicated that the Respondent was not obliged to answer questions presented more than 21 days after the statutory time limit under the relevant statutory orders. These require such questionnaires, if made once proceedings have been commenced, to be made within twenty one days or for permission to be sought and given.
- It then considered the explanations of the Respondent. This is stage two procedure, set out in Igen Ltd v Wong [2005] ICR 931 (CA), to which we will return. It found in their favour in relation to the handling of their grievances, for it said this:
- It took the same approach to the claims of sex discrimination, again referring to the statutory questionnaires. The Tribunal was at pains to recognise and to do the best it could to separate the inferences it was required to draw from those two grievance issues which it had upheld. The first grievance appears to stem from 13 September 2001, which related to sex and race discrimination. Again the Tribunal reached the same conclusion. It upheld the Claimants' case in respect of the handling of their grievance under the Sex Discrimination Act, but it dismissed their claims in respect of lack of work, special leave, dismissal and CSCS compensation. In doing so it accepted explanations given by the Respondent in respect of each one.
- The treatment by the Tribunal of these claims differed, for it held that their evidence failed to show such facts as would require the burden of proof to pass to the Respondent. In dealing with this matter it set out five grounds on which it came to that conclusion and in respect of each one refused to accept the Claimants' case that what is known as a prima facia case, or a stage one case, had been made out of less favourable treatment on the ground of having made a protected act.
- The same is true of the two issues of harassment presented by the Claimants. That is to do with derogatory remarks made by co-workers and their posting to the IBU, as we have said, on 6 January 2003. The Tribunal said this when applying the legal definition of harassment:
- The Tribunal then turned to the other issues which it had to deal with and, so far as is now relevant on appeal, it accepted in part the Claimants' case that they were entitled to be paid pursuant to the allowance for 60 days in respect of the years 2002 to 2005 each. It rejected the claim for notice pay, noting as it went that the Claimants had been paid six months set against their contractual three, and it simply did not understand the holiday pay claim, citing as it did Commissioners of Inland Revenue v Ainsworth [2005] IRLR 465 (CA).
- Further explanation of the Judgment in relation to the allowance is found in the Review Judgment, where the Tribunal held as follows:
- This therefore represents the consolidated view of the Tribunal upon the review initiated by the Respondent. The Tribunal was asked to give further reasons by the EAT and it did so. We are grateful to the Chairman for recording these reasons for us. These additional reasons enabled us to make the conclusion which we did at the outset of this Judgment, since they cleared up the residual questions we had about certain aspects of the notice of appeal.
- At the end of its Judgment the Tribunal descended upon the issue of costs. This arose because of a hearing at Watford Employment Tribunal, aborted after eight days because the principal HR witness for the Respondent Mr Barnett, its senior Director of HR, compromised the proceedings. His wife is a lay member of the Employment Tribunal at Watford and at the completion of the seventh day when he had given his evidence he approached the two lay members on their way to the retirement room. He asked to speak to the Chairman. One of the members informed him that he was not allowed to speak "to us" (the Tribunal), whereupon he said it was nothing to do with the case. He was told "you cannot speak to us as it might be perceived wrongly". He left the room. As the members left the room. Mr Barnett then said "can you give the Chairman a message that my wife Louise Barnett, who he sat with on panels in the Tribunal, sends her regards."
- The matter was canvassed the next day with the parties. It was the Tribunal's judgment that it could be perceived from what was said that these unfortunate comments might cause in the eyes of a fair-minded observer a real possibility that justice might not be done. There is no challenge to the determination by the Tribunal that it should recuse itself from that hearing. As a result a year passed before the case could be reconstituted, this time in London (Central) and with the Claimants, as we have said, required to submit their evidence again.
- As part of the Claimants' claim for discrimination there was a claim for compensation in respect of costs incurred by their representative Mr Aziz. The sum claimed was £14,000 (£2,000 per day). The Tribunal awarded £9,000, considering that the sum claimed was too high, but found that it was appropriate to make such an award because the Home Office, through Mr Barnett, had conducted the proceedings unreasonably.
- The greatest part of the Claimants' argument turns on the application of the burden of proof in the unsuccessful parts of the race and sex discrimination claims. The principal claim is that if a case passes the stage one threshold and an explanation is called for from the Respondent, if what arrives is not a valid explanation then the Respondent will necessarily be liable. The Respondent offered no explanation for not following the Redundancy process well-established in this organisation and, in the absence of that, the Tribunal was bound to find discrimination. The second fundamental criticism is that Ms Ackland was tainted in her decision to dismiss by reason of the grievances submitted by the Claimants and upheld by the Tribunal as being discriminatory on the grounds of race and sex. Broadly speaking the Claimants accept the findings of fact but they seek to unseat the finding that there was a redundancy. The redundancy is a pretext for the dismissal on discriminatory grounds.
- As to the individual incidents of discrimination, Mr Aziz contends that, in respect of pay, the Tribunal came up with its conclusion which it handed to the Respondent, for the Respondent had not pleaded that there was a business need to pay the rates in place for staff interpreters like the Claimants on the one hand and the freelancers on the other. In respect of a comparison with other executive officer grades in the Civil Service, the only one without enhancement is the interpreter, and thus the only explanation offered by the employer was not valid and discrimination should be found.
- It was contended that the Tribunal had erred in the application of the statutory disputes resolution procedures and that the dismissal should have been unfair under section 98A (automatically unfair). This was because: a step one letter was not made inviting the Claimants to a meeting; a step two meeting never took place because Ms Murrell had no power to resolve the dispute but was simply, as the Claimants put it, a "post-woman"; step three took place an unreasonably long period of time after the appeal was made (time, for this purpose, beginning on 4 November 2004 and not on 4 February 2005 when formal notice of dismissal was given).
- On special leave and annual leave it is contended that while the Claimants were shift workers, and there was no notice in place to terminate that arrangement on four weeks notice, they should continue to be paid. These were unique circumstances. Special leave is provided to an employee for domestic reasons and not on imposition by the employer. In addition, the Tribunal was wrong to find that special leave was not a detriment, citing the Judgment of Lord Hoffman in Chief Constable of the West Yorkshire Police v Khan [2001] ICR 1065, paragraph 53, and the Judgment of Lord Nicholls in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 117, paragraph 105. The value of these allowances was substantial. Each has lost about £17,500 and each was forced into a position where her skills would atrophy. A shift allowance was payable throughout the time, giving them an entitlement to a 10.5 % uplift. There was no consultation with them about posting to this position.
- In summary, the shift allowance raised two issues: posting onto special leave and the payment applicable thereafter. This point arose as a result of an excavation of the original Judgment of the Tribunal in the Claimants' favour. It was submitted that if permission were needed we should give it for the point to be argued as it was. As to dismissal, it was contended that the Judgment of the Tribunal at paragraph 92 (see paragraph 28 of this Judgment) could not stand with the Judgment of the Tribunal at paragraph 126(iv), which is this:
- It was further contended that the Tribunal erred in failing to draw inferences adverse to the Respondent by its failure to answer questions. Questions were sought within 21 days of the most recent claim form. It was contended in respect of the issues in which the Claimants failed to cross the first stage in Igen, there was an error in the Tribunal's approach to the definition of harassment, the claim for public interest disclosure (whistle-blowing) was wrongly resolved by the Employment Tribunal and there was no explanation by the Respondent from the actual change of position of Ms Ackland in respect of CSCS, first acknowledging it should be paid and then the opposite. On victimisation it is contended that many of the points for direct discrimination argued above apply here and that the threshold of stage one was crossed.
- Mr Aziz turned to what we described as the rule 3 points. These were a number of arguments addressed in the Skeleton Argument but which had been dismissed under the EAT rule 3 procedure. All these were still live, albeit on instructions from his clients they had not been advanced orally. No argument was raised by Mr Aziz as to costs; he relied upon the Employment Tribunal's judgment.
- On behalf of the Respondent it is contended that the explanation to be given by a Respondent at stage two of Igen is one of substance not form. It is for findings to be made by the Employment Tribunal and that such findings must be that the explanation is genuine and shows no discrimination whatsoever. The explanation need not be good; it could be wrong-headed provided it is genuine and free of discrimination. An employer who is proved wrong, for example as to an event occurring, is not thereby precluded from giving an explanation. If something occurs such as that during the course of the proceedings the question is this: is the Tribunal satisfied from all the evidence that the explanation is genuine and non-discriminatory? An Employment Tribunal, when giving its reasons, must explain why it is satisfied with a Respondent's explanation if that is its conclusion.
- As to the structure of this case, it is contended that the Tribunal did not proceed on the basis of the 41 individuated complaints. It rationalised them following the agreement of the parties and that is the reason why there is not a one-by-one treatment of each of the complaints. The further reasons given by the Employment Tribunal are a complete answer to the criticism of inadequacy of reasons.
- As to the questionnaire, it is contended that, as a matter of law, there is no obligation to answer questions made more than 21 days after the substance of a complain made. It is an abuse of the process of the Tribunal to seek to resurrect a claim earlier made and to hang upon the new claim questions which should have been raised earlier. In any event, the findings by the Tribunal on the questionnaire are adverse to the Respondent and the Tribunal of course would have in mind those findings when it considered as a whole the Respondent's explanation.
- As to special paid leave, there was no ground for suggesting that the placing of them on special leave was discriminatory. Again, a complete answer was given by the Tribunal in its supplementary reasons.
- As to pay, the original case made by the Claimants of a comparison with freelancers must have failed as it was hopeless. In any event, a new case was raised by the Claimants that they sought to be paid market rates, and that failure so to do was both a breach of contract and discrimination. But this was never "pleaded" and so the Respondent never came up with an explanation in its formal pleadings, but it did do when it was raised in the course of the hearing. There is no point in the Claimants' case relating to comparison with immigration officers for there was no investigation or evidence of the racial or gender composition of the pool of immigration officers.
- In respect of the victimisation claim, it will be recalled the burden of proof did not move, no facts were proved; this was a question of fact for the Employment Tribunal. Nor were grounds shown in respect of the whistle-blowing case. It was recalled that an unjustified sense of grievance cannot justify a claim for detriment: see Shamoon at paragraph 105.
- As to harassment, again the burden had not shifted and there were adequate facts for the Tribunal's finding.
- On the statutory dispute procedure, it was contended that a letter had been written which contained an invitation and an explanation had been given at the stage two meeting with Ms Murrell.
- As to the criticism of delay in the internal appeal, it was noted that this was not the subject of a Judgment by the Employment Tribunal, save in the broadest of terms. The clock did not begin to run in November 2004 but on 4 February 2005. If the EAT detected an error in the Tribunal's approach the Respondent's position, echoed by the Claimants, was that the EAT should deal with it here.
- It was never contended by the Respondent that there was breach of an implied duty to provide work. Special leave is accepted to be a position where, in this case at least, the Claimants were required to be available and to be regarded as susceptible to be called in if the Respondent sought to do so. On holiday pay it is contended that there is no basis for that claim. No evidence was produced to the Tribunal as to what holiday had been taken by the Claimants and in any event the Claimants had received six months' instead of three months' notice, also an answer to the notice point.
- On the shift allowance, it is accepted that during this period of special leave there are difficulties of construction in the clause. But each period, while it may begin afresh when there are sequential absences, does not start the 60 day period again when there is a continuous period of absence. In respect of the one day found by the Employment Tribunal to restart the procedure on 6 January 2004, that is negligible and should not be taken into account.
- Finally as to costs it is contended the Tribunal erred because payment to a non-legally qualified representative is not within the rules, that the conduct of Mr Barnett was not the conduct of the proceedings within the rules, and in any event with the figures in play here, albeit within the limit of £10,000 vouchsafed to a Tribunal, the award should have been the subject of a detailed assessment if it were otherwise applicable.
- For the most part we prefer the arguments of the Respondent but we will allow the appeal in part.
- Just as it is not open to a Claimant to raise complaints out of time, it is not open to them to start time running again for the purpose of a statutory questionnaire by issuing a fresh claim form rehearsing claims made in the pervious claim form. Those second claims would be struck out or would be dismissed at a full hearing, and so we hold would any parasitic question asked in the statutory questionnaire. Although the questionnaire must be levied within 21 days of a claim form, or permission be sought, where the Claimant rehearses claims already made in previous proceedings and already before an employment Tribunal, it is an abuse of the process of the Employment Tribunal to seek to hook a new questionnaire onto the new claim form.
- In any event it may be some consolation to the Claimants to know that the Tribunal did take against the Respondent for its behaviour in submitting the answers to the questionnaire which it did. There are very strong criticisms of the answers and we have no doubt that the Tribunal had those criticisms in mind when it came to consider stage two of the procedure under Igen, to which we now turn.
- The central point in this appeal relates to the application of the tests for discrimination set out by the Court of Appeal in Igen, where what is described as the Barton Guidelines were determined to be the law. They are:
- These have now been refined in three Judgments of the EAT given by Elias J (President) and members. They are: Network Rail v Griffiths-Henry [2006] IRLR 865; Brown v London Borough of Croydon, unreported UKEAT 0672/05; and, Laing v Manchester City Council [2006] IRLR 748. In our judgment the correct test in Brown is as follows:
- A similar approach was taken in line with that in Network Rail:
- We consider that the approach taken to question of discrimination is set out with most clarity by Lord Nicholls in Khan above:
- This reflects, as his Lordship says, his own Judgment in Nagarajan v London Regional Transport [1999] ICR 877, where he was at pains to point out the distinction between what might be called the "but for" approach and the "reason why" approach.
- The major problem for the Claimants on their discrimination allegations is the finding in their favour on unfair dismissal. They contend that the redundancy was simply a pretext. Yet they succeeded in showing that their employer had conducted the procedure leading to their dismissal in a way which led to unfairness in a large number of respects and also there was sex and race discrimination in the handling of their grievances. However, as we have examined the reasons of the Tribunal, the Tribunal itself was aware that it had to make separate decisions. It considered it was wholly consistent with its approach to find sex and race discrimination in the Respondent's handling of the grievances and yet no discrimination in the dismissal. The reasons why are set out. The procedure was entirely different and the decision maker was different.
- Thus the question which arises both on unfair dismissal and discrimination is: what was the reason why they were dismissed? A reason for the purposes of unfair dismissal must be put forward by the Respondent and the finding made by the Tribunal.
- Essentially it is to get into the mind of the decision maker; so it is in to relation to discrimination. Where there are separate people involved it is quite understandable for separate judgments on discrimination to be made by a tribunal.
- We have looked with care at the way in which the central part of the Claimants' case is presented. In our experience it is very difficult for a Claimant to attack the economic case of redundancy when presented by an employer. Generally speaking redundancy is accepted and the major territory over which the battle of unfair dismissal is fought is on unfair selection and unfair procedures. In this case, showing that redundancy was bogus was bound to be an uphill march.
- The Tribunal noted that from as early as 1988 the Claimants had been under threat of redundancy, albeit maybe not that they would have been dismissed. The vacillation by the Respondent over the succeeding 17 years does not take away the fact, as found by the Tribunal, that the reason for the dismissal was redundancy. It does not defeat that decision to know that the Respondent was not able to pinpoint in time when that decision was made.
- Not only is it a problem for the Claimants because they have a finding in their favour, but it also is a finding of fact which is not susceptible to appeal in this Tribunal unless it is perverse. But why should the Claimants be alleging perversity in a Judgment in their favour? There is a perfectly clear free-standing successful claim for unfair dismissal on the ground of redundancy. There was ample evidence for the Tribunal to make the conclusion of fact that the reason for dismissal was redundancy and there is no attack on the reasoning of the Tribunal as to unfairness.
- Again, central to the Claimants' difficulty is what Mr Tolley described in his own submission as being a cheap forensic point, but one which, as we told him at the time, was on the contrary a central issue in the case. That is that there must be a distinction between the background against which a dismissal occurs and the reason for it. It is quite consistent for the Tribunal to find that, but for the Claimants being exercised about their status as long ago as 2001, they may have continued in employment until requirement, which was the Tribunal's finding, if they had been prepared, as the Tribunal found, to let sleeping dogs lie. But that does not mean that when they are dismissed four years later they are dismissed for raising those issues which were accepted to be protected acts.
- The fact that there has been a long history, we have described it as systemic, of race and sex discrimination in the handling of the grievances raised by the Claimants does not mean that the final outcome, their dismissal by redundancy, is itself tainted by those earlier findings. We accept the submissions made by Mr Tolley as to what has to be decided by an Employment Tribunal when applying the Igen test and, as we hold it to be, its proper application as set out in Brown v London Borough of Croydon (paragraph 65 above). The Tribunal is required to consider the evidence as a whole and to be satisfied, if this is to be its finding, with the explanation given by the Respondent. If not it will find in favour of the Claimants.
- As to detriment, we accept Mr Aziz's submission that if the allowance was duly payable, as we have found it to be (see below), then it was itself a detriment not to make it available during the period of special leave, detriment being a principle of discrimination. We would also accept in this particular case that the Claimants, while being placed on special leave, albeit not in breach of contract, were susceptible to a detriment for the Tribunal has found effectively that they enjoyed their work and they wanted to be put back to doing it so that they could exercise their professional skills. Those are, in our judgment, proper matters of detriment and we would hold, again with great respect to the Employment Tribunal, that it rather missed the point when it found that they were enjoying a benefit for they were not required to work. The Tribunal might be excused in part since we have formed a different view about the allowance than it did, but for those two reasons we uphold Mr Aziz's point. However, these do not get over the problem, which was that there was no less favourable treatment found.
- As to the redundancy process, Mr Aziz accepted that the formulation by the Tribunal in its Judgment of "being dismissed" includes both the dismissal and the process. That seems to us to be a complete answer to the complaint that the process of dismissal was tainted by discrimination, and for the reasons which we have held, upholding the Tribunal on dismissal, we uphold it on "being dismissed", meaning the process.
- These relate to pay, special leave and CSCS. Again we accept Mr Tolley's analysis of the Tribunal's reasons. On each point in respect of, separately, sex and race discrimination an explanation has been given by the Respondent which the Tribunal accepted and it was entitled on the evidence to accept it. In our judgment there is no error.
- It will be recalled that the Claimants failed to pass the stage one threshold for victimisation. On the burden of proof, it is not being contended that that is a wrong approach. There may be arguments that the burden of proof does not apply to victimisation claims. Nevertheless, the central question is the one we have answered above. Though the setting of the dismissal may have been against years of grievances and some sex and race discrimination, the reason for the dismissal was not the protected act whistle-blowing. The same analysis in applies in respect of whistle-blowing where the burden of proof does not shift.
- On harassment, a criticism is made relating to the statutory construction of the amendment to the Race Relations Act for the Tribunal's reasoning was set out by us above. In our judgment the Tribunal has here dealt with both aspects of the section. "No intention to harass" deals with what is the purpose and the finding as to having that effect is the other alternative route to liability. In our judgment the Tribunal correctly applied the statue; no error can be put at its door. This was the correct application of the statute on facts reasonably available to it.
- We agree with Mr Tolley that no sensible issue arises here. As we have indicated the Tribunal had difficulty with both these cases and dismissed them summarily. As we understand it now the holiday pay issue is this: because the Claimants were dismissed on 4 February 2005 and the holiday year expired on 28 February 2005 they should have been treated as leaving on that date and entitled to pay for untaken holiday.
- The criticism made by Mr Aziz is as to the reference to Commissioners of Inland Revenue v Ainsworth [2005] IRLR 465, which is itself a Working Time Regulations case. We accept that but there are passages in that case which indicate that there cannot be transposition of one form of leave for another. The Tribunal did not err by referring to Ainsworth for there is substance in it for this approach. No evidence was led as to what time had been taken on holiday and so the Tribunal was correct to dismiss this as a claim either for unlawful deductions or for money outstanding on termination. In any event taking a realistic approach, as the Tribunal did, the extra three months' pay given to these two employees would seem to extinguish it.
- We will take little time up with these matters for nor did Mr Aziz nor Mr Tolley. Whatever may be the formal position about whether these points survive, the opinion which I gave on rule 3, that there was no reasonably prospect of success in these points, is now shared by all three members. Grounds 146 to 153 were criticism but which were answered by the Tribunal throughout. The Tribunal fully explained the correctness of its Judgment on these grounds and the allegations of inadequacy fail. As to grounds 155 to 164 these too raise no points of law for, as Claimants themselves say, they are concerned with errors of fact as to which the EAT has no jurisdiction: see section 21 of the Employment Tribunals Act 1996.
- The Claimants contended that there was no step one letter. That is absurd. There was a letter. It did invite them to a meeting. They then contend that the meeting which was conducted by Ms Murrell did not correspond to step two, that Ms Murrell did not have authority. In our judgment that too is absurd. She conducted a meeting. She passed on the material which she was asked to do and it was accepted by Mr Aziz in debate that an explanation was given by her for the Respondent's position. That is what is required: see Shergold v Canary Wharf, an opportunity for both sides to explain their respective cases. On the admission by Mr Aziz in this court this complaint cannot survive.
- We turn then to step three. This requires there to be "no unreasonable delay" in the hearing of an appeal; see paragraph 12 of schedule 2 to the Employment Act 2002. The Employment Tribunal did not here provide a proper timetable but we have reconstructed it. Its approach was to dismiss this point as there is no specific time limit under the schedule. In our respectful judgment, on this point the Tribunal erred. It is not enough to say there is no specific time limit. The mandatory requirement is for there to be no unreasonable delay. The candidates in this case are 5 November 2004 and 23 February 2005. We consider that it is open to us to look at this matter now, having detected an error in the Tribunal's reasoning in failing to consider whether either of those candidates constituted the beginning of an unreasonable period. It is now open to us to either remit the matter to the Employment Tribunal or to make a decision ourselves. Neither party wants remission.
- In our view the clock started here on 5 November 2004. The documentary material to which we have referred to shows that by that date or by 23 November 2004 there was a decision made by the Respondent that there would be dismissal of the Claimants for redundancy, they having refused by the deadline of 5 November 2004 to accept the offers made to them. That is action. It is in the form of a dismissal. It engages the statutory procedure and the Respondent itself acknowledged that the letters written to the highest levels in the Home Office, its Permanent Secretary and the Home Secretary himself, were acknowledged to be appeals against their dismissals. Thus no action was taken at any time to deal with their appeal. If we are right about that, Mr Tolley has no explanation for the succeeding period of three months, or it may be said for the period up until the appeals were lodged again in February 2005. By comparison with ordinary standards applicable in Tribunals three months with nothing happening is unreasonable. Compare for example the 28 days for a grievance to be presented and dealt with before proceedings may be launched in an Employment Tribunal, and the three months deadline for presenting a claim for unfair dismissal. Thus three months with nothing happening in an internal appeal is, in our judgment, unreasonable absent an explanation, of which there is none.
- That means that the dismissal is automatically unfair, carrying with it the opportunity for the Claimants at the forthcoming remedy hearing to seek uplifts in compensation if the Tribunal were so minded. If, however, we are wrong about the clock starting, and it only began when the Claimants submitted their appeal on 23 February 2005 after actual dismissal, we would hold that there is nothing on the material we have seen to make that time unreasonable. Although the appeal was not heard until 13 June, a month was taken up because the Claimants' union representative could not appear. And other periods were taken up by the operation of the very important procedures operated within the Civil Service. Neither party has said that anything turns upon those delays. If we are wrong in our primary finding then we would not hold the Respondent to have automatically dismissed the Claimants by reason of a finding that time began to run in February.
- We will allow this point to be made at the Employment Appeal Tribunal, albeit it has not been made below. There is no prejudice to the Respondent in allowing the argument to be ventilated. There is no violation to the principle of finality, since the Respondent itself sought to appeal a point on the allowance. The point is one of simple construction. We start from the premise Mr Tolley accepted, which is that these internal regulations are not clear, and so we will adopt the principle of construing ambiguity against the Respondent and in favour of the Claimant if there is one. We find there is. We will also take account of the principle that the law will not take account of negligible exceptions to a general rule. This applies in Employment Tribunals and the EAT: see Saggar v Ministry of Defence [2005] ICR 1073 EAT,.
- We would support the Tribunal's finding, as we have recorded it above, in relation to special leave as a matter of construction. We know that this is a matter of importance to the Respondent for other purposes. The competing arguments are that the period available to an employee for the allowance is a maximum of 60 days. It is suggested by Mr Tolley that the words "will be limited to 60 days in any period of twelve months" is applicable also to limit to 60 days the payment for any period of absence which exceeds twelve months. With respect, we cannot see that construction. The period of 60 days in any period of twelve months means that the period must restart on the anniversary in each case of the absence, and thus the Tribunal was correct as a matter of construction. We would, however, hold that the Tribunal erred in using the one day at the IBU as a ground for restarting the process. That is negligible within the scale of the absence here, some three years, and applying the principle of negligibility we would hold that the Tribunal's approach of starting the clock again by reference to a single day's working is not correct.
- That, however, does not take the case as far as the Claimants had sought. The basis of the Claimants' case is that since they were available for work at all times, and while no notice had been given to them pursuant to paragraph 2884 to terminate the shift allowance, they continued to be shift workers. We have to say that the special leave provisions simply are inapt for the case of the two Claimants. The provision we have cited deals purely with domestic arrangements by an individual employee. It is generally envisaged that this will be five days as a maximum, although it can, on reference to higher management, be extended. All of the examples given fit within the context of domestic exigencies, and none of them is triggered by management. Here management imposed this period of abstention because it simply could not make up its mind about what to do in the circumstances.
- What should the pay have been for these two Claimants? There are two routes to resolution in the Claimants' favour which we find attractive. The first is based upon the representations made to them. We acknowledge that we are without findings by the Tribunal on what the parties jointly intended, but construing the evidence as we do, and starting with the representation that they should be paid their full pay, we consider that that must mean the rate of pay before the letters were written and it includes the allowance. The fact that Mr Wild did not think about this point and assumed that they were going to get their full pay adds strength to that consideration.
- We hold on the material available to us that the agreement between the parties while The Claimants were in limbo was that they should continue, as they had for the ten months of their sickness, to be paid their full pay, which for this purpose includes the allowance. That then disposes of the case in the Claimants' favour, but there is an additional reason which we canvassed with Mr Tolley before giving our Judgment, and it is as he accepted a logical and attractive proposition. It is this: since it is accepted that the Claimants were available for work, the work they would be available for would be their shift work. They could be called in to work according to their shift pattern during the time of this special leave, thus they are in a unique position. None of the other examples appears to be apt, given in paragraph 2877(b). To all intents and purposes, as is reflected by Mr Wild's evidence, they were regarded as employed, although their particular obligations as employees were different. They were not obliged to come in unless asked. But that does not change the nature of their relationship with their employer, nor their conditions.
- So the simple approach to this case is that, while they were available to work and until notice were given that they should not be regarded as shift workers, they were available to do shift work and were entitled to that payment. So for those two reasons we would uphold the Claimants' new point in their own particular case that they were entitled to the allowance. That in no way undermines the finding of the Employment Tribunal in relation to the ordinary application of these rules, which is we hold to be correct.
- Mr Tolley has researched the point and found no authority. The question is: are costs awardable by an Employment Tribunal restricted to costs of a legal representative? Our answer is yes. The nearest this gets to a resolution is the Judgment of the EAT, Burton J and members in Dunnachie v Kingston Upon Hull CC (No. 3) [2004] ICR 227. It is clear enough that in that case the EAT was dealing with an issue relating to costs of a litigant in person. In our judgment a person represented by a non-lawyer, for the purposes of the 2001 Rules, is a litigant in person. Costs were at that stage not available to be claimed by a litigant in person. We accept the arguments of Mr Tolley that it would be odd that the expansion of the right to costs and preparation time given by the 2004 Rules should in fact be regarded as narrower than the position applying under the 2001 Rules. As Burton J said, the lacuna in the 2001 Rules for litigants in person has been made good by the 2004 Rules.
- The correct analysis is that a litigant in person and a person represented by a non-lawyer are the same, and in these circumstances the Tribunal was wrong to apply the 2001 rule to what are said to be costs payable to a non-lawyer. This is consistent also with the approach in the CPR and the common law. Nowadays the only avenue would be for preparation time. We also hold that Mr Tolley is correct in that the provision relating to a detailed assessment by a costs judge in the County Court would be difficult to apply where, as here, a consultant has charged time.
- There is no direct approach except for a possible analogy under CPR 48.6 in relation to a lay representative in a small claim. But apart from that we consider that the costs judge in the County Court would not have experience in dealing with the assessment of costs in respect of a non-lawyer. Thus in our judgment the Tribunal was wrong to award, under the heading of costs, payments towards Mr Aziz's fees.
- It is not necessary for us to consider therefore the two subsidiary points. But we will hold, since we have heard argument on it, that Mr Barnett was conducting the proceedings and did behave unreasonably. As to Mr Barnett the challenge is to whether or not he was conducting the legal proceedings. The Tribunal's findings are expressed. He was the lead officer of HR on behalf of the Respondent. We imagine in every sense he was the client of the legal representatives. Although the Director of IND was present and giving evidence the principal challenge to the Home Office here was as to its human resources management and the conduct of those officers. Mr Barnett was the highest ranking HRD person, being the Director. From his professional experience and from his marriage to a Tribunal member, he knew perfectly well what the dangers were of informal contact between a lay witness and the Tribunal bench. It is not disputed that he acted unreasonably. We would say that the finding by the Tribunal that this was unfortunate and unreasonable is a tribute to the Tribunal's self-restraint and understatement. It is not necessary to go further than saying he conducted himself unreasonably, and for this purpose he is to be regarded as a party. We can think of little more damaging than for the highest ranking officer of a party in litigation to talk to the bench out of court when in the course of legal proceedings.
- Finally as to quantum, it is contended that this amount should have gone to a detailed assessment, even if it were within the scope of the rule. We would disagree. The Tribunal was given power at the time it was controversial to award up to £10,000 without any form of detailed assessment. It has done a robust and rudimentary assessment here and slashed Mr Aziz's claim by £5,000. Mr Tolley, on behalf of his client, is sceptical as to the obligation of the Claimants to Mr Aziz and as to the amount by which they are obliged by some form of contract to pay him. Be that as it may, it cannot be said that in the exercise of its discretion the Tribunal erred in law in failing to send this matter to a detailed assessment. We asked Mr Tolley what the costs of the Respondent were in those eight aborted days. Doing the best he could he put to us figures that were not very different from the £9,000 awarded to Mr Aziz, taking account of his hourly rate which is the appropriate method of charging by Counsel to the Treasury Solicitor, and attendance by a relatively junior solicitor for most of the time. Thus it needs to be seen in context. In our judgment if we are wrong on part one then there was no error in part three of the criticism made by Mr Tolley about the costs order.
- We would thus allow the Claimants' appeals in part and add a finding that the dismissal was automatically unfair, and that the Claimants were at all times entitled to be paid shift disturbance allowance. We will allow the Respondent's cross-appeal on costs and dismiss its appeal on the allowance. We would very much like to thank Mr Aziz for his extremely thorough and courteous presentation to us of the issues. We say the same of Mr Tolley. They have both put the issues on behalf of their clients extremely clearly and succinctly and allowed us to see our way through this very complex case within the envelope of time allowed to it.
| For the Appellants | MR I AZIZ (Representative) Crescent And Star Consulting 386 Hanworth Road Hounslow Middlesex TW3 3SN |
| For the Respondent | MR A TOLLEY (of Counsel) Instructed by: The Treasury Solicitor – Employment Team One Kemble Street London WC2B 4TS |
SUMMARY
Sex Discrimination – Equal treatment directive
Practice and Procedure – Costs
Practice and Procedure – 2002 Act and Pre-Action Requirements
Race Discrimination – Indirect
This complex appeal raised issues in 10 jurisdictions. Primarily the Claimants, who won unfair dismissal and sex discrimination and race discrimination claims, contended that their dismissals were tainted by the discrimination and that the finding in their favour on redundancy was incorrect. It was held that the Employment Tribunal correctly separated the decision-making and instead of applying a "but for" test of causation properly sought to ask the reason why they were dismissed.
The Claimants were exceptionally allowed to argue a new point conceded below when the issue of shift allowance was reopended by the Respondent, and a Judgment made in their favour on construction of the conditions and the representations made to them.
The Employment Tribunal was wrong to award costs to the Claimants whose hearing had been aborted by the unreasonable conduct of the Respondent's director. While the conduct was to be regarded as that of a party, costs under the 2001 Rules were not available to pay for non-legal representation.
HIS HONOUR JUDGE McMULLEN QC
Introduction
"With the assistance of their Representative Mr Aziz at the outset of the Hearing, the Claimants' complaints were conveniently grouped under eight headings as follows:
9. Lack of Work: The Claimants were treated less favourably on the ground of their race and/or their sex in that the Respondent failed to provide them with the opportunity to work as interpreters, the work being given instead to freelance interpreters increasingly from about the late 1990's until the date of the Claimant's dismissal.
10. Further, the continuing failure of the Respondent to provide interpreting work for the Claimants constituted victimisation from 30 April 2003 until 4 February 2005 by reason that the Claimants had made allegations of race/sex discrimination and/or had commenced Tribunal proceedings
11. Further, the Respondent's failure to provide interpreting work constituted sexual and/or racial harassment in that it placed the Claimants in a degrading and humiliating situation in the eyes of other staff.
12. Further, the Claimants have been treated less favourably on the ground of their race and/or sex in that the Respondent ignored their inquiries regarding the possibility of posts in the Central Interpreters' Unit in 2000, and Mrs King was treated less favourably on the ground of her race and/or her sex in that the Respondent ignored her expression of interest in a post in the Heathrow Interpreters' Unit in February 2001.
13. Pay: The Claimants were treated less favourably on the ground of their race and/or their sex in that the Respondent failed to pay them the correct rate of pay for their work as interpreters having regard to the increasing rates of pay of the freelance interpreters who were paid at prevailing market rates and failed to look into the Claimant's complaints regarding this issue.
14. Further, the Respondent's failure to pay the correct rate of pay and to take their concerns seriously constituted both victimisation and harassment on the ground of their race and/or sex, in that it created the perception that the Claimants were not valued or had done something wrong.
15. Grievances: The Claimants were treated less favourably on the ground of their race and/or their sex and/or were victimised and/or were subjected to harassment in that the Respondent failed properly to respond to the Claimant's grievances dated 13 September 2001 which have still not received a final response. The Claimant's have been denied proper access to the Respondent's grievance procedure in so far as their grievances of 13 September 2001 up to 2 February 2005 have been ignored or not properly addressed or dealt with.
18. Special Leave: The Claimants were treated less favourably on the ground of their race and/or sex and/or were victimised and/or subjected to harassment in that the Respondent placed them on special leave from 30 September 2002 until 4 February 2005 (save for one day at work on 6 January 2003) without consultation. This isolated the Claimants from access to facilities, caused their skills to atrophy and created the perception that they were not wanted or had done something wrong.
19. Further, the Claimants were treated less favourably on the ground of their race and/or sex in that the conditions in which the Claimants were required to work on 6 January 2003 were inappropriate for full-time members of staff.
20. Dismissal: The Claimants were treated less favourably on the ground of their race and/or sex and/or were victimised and/or were subjected to harassment in that the Respondent contrived their dismissal between 30 April 2003 and 4 February 2005 on the pretext of redundancy. Further, the process and procedure by which the Respondent dismissed the Claimants constituted less favourable treatment and/or victimisation and/or harassment.
21. Further, the Claimants' dismissal was substantively and/or procedurally unfair under the provisions of s 98A and/or s 98 Employment Rights Act 1996.
22. Further, the reason or the principal reason for the Claimant's dismissal was because they had made protected disclosures on 12 October 2004, 7 January and 2 February 2005 and they are therefore to be regarded as unfairly dismissed under the provisions of s 103A Employment Rights Act 1996.
23. Civil Service Compensation Scheme: The Claimants were treated less favourably on the ground of their race and/or sex and or were victimised and/or were subjected to harassment in that the Respondent denied them payment of proper compensation under the CSCS upon termination of their employment.
24. Further, this denial of proper compensation constitutes unlawful detriment under the provisions of s 47B Employment Rights Act 1996 on the ground that the Claimants had made protected disclosures on 12 October 2004, 7 January and 2 February 2005.
25. In respect of all of their discrimination complaints the Claimants contend that they, as two ethnic minority women who comprised the entirety of the permanent staff interpreters department, were treated less favourably than other permanent full-time staff in other departments were or would have been treated by the Respondent. Further, the Claimants contend that the entire IND Human Resources department was afflicted with an attitude indicative of institutionalised racism in which complaints of race discrimination were not taken seriously.
26. Breach of Contract/unauthorised deductions from wages: The Respondent is in breach of contract in not having paid to the Claimants their contractual notice pay. Further, the Respondent has failed to pay the Claimants' contractual entitlement to shift allowance and premium payments during their involuntary period of special leave and the payment due during their period of detached duty at IBU.
27. Further, the Respondent has failed to pay the Claimants' holiday … pay …"
The issues
"(i) Whether the Tribunal is precluded from hearing any of the Claimants' complaints because they have been presented outside of the time limits set by the variously applicable statutory provisions? Whether or not certain acts alleged can be regarded as part of a single act extending over a period of time so as to be treated as done at the end of that period, or, in the case of alleged deductions from wages, whether or not these constitute a series of deductions?
(ii) What was the reason for the Claimants' dismissal? In particular, was it by reason of redundancy as contended by the Respondent or was it on the ground of the Claimants' race and/or their sex and/or because they had made protected acts or disclosures as alleged by the Claimants?
(iii) Was their dismissal to be regarded as unfair by virtue of a statutory provision and/or in any event fair or unfair, substantively and/or procedurally?
(iv) Whether the Claimants have shown facts from which the Tribunal could conclude, in the absence of an adequate explanation, that either or both of them have been subjected to unlawful discrimination on the ground of their race and/or their sex in any of the respects alleged in their complaints as set out above?
(v) If so, has the Respondent satisfied the Tribunal on a balance of probabilities that its treatment of the Claimants was in no sense whatsoever on the grounds of their race and/or their sex?
(vi) It was not disputed that the Claimants had done protected acts. The issues were therefore; whether the Claimants have shown facts from which the Tribunal could conclude in the absence of an adequate explanation that the Respondent had treated either or both of them less favourably than a real or hypothetical comparator who had not done a protected act? If so, has the Respondent shown on a balance of probabilities that its treatment of the Claimants was not by reason that they had done a protected act?
(vii) It was not disputed that the Claimants had made protected disclosures. The issue was therefore whether or not the Claimants had suffered the alleged detriment of non-payment of compensation under the CSCS scheme on the ground that they had made protected disclosures, it being for the Respondent to show the ground on which they did not pay CSCS to the Claimants?
(viii) Whether or not the Claimants have shown on a balance of probabilities their contractual and/or other legal entitlement to the sums which they claim as set out in paragraphs 26 and 27 of these reasons?"
The Claimants' appeal
The legislation
"(i) It is unlawful for an employer to discriminate against an employee . . in the way he affords her access to opportunities for promotion. . .or any other benefits, facilities or services or by deliberately omitting to afford her access to them ... or by dismissing her or subjecting her to any other detriment (s 4(2) (b) and (c) Race Relations Act 1976, s 6(2) (a) and (b) Sex Discrimination Act 1975).
(ii) An employer discriminates when on racial grounds and/or on grounds of her sex he treats an employee less favourably than he treats or would treat other persons (s 1(1) (a) Race Relations Act 1976, sl(2)(a) and s 2(1) Sex Discrimination Act 1975).
(iii) An employer also discriminates against an employee where he applies a provision, criterion or practice to her which applies or would apply equally to persons not of the same race and/or to a man but which puts or would put persons of her race or ethnic or national origins and/or women at a particular disadvantage when compared with other persons/men, which puts the Claimant at that disadvantage and which he cannot show to be a proportionate means of achieving a legitimate aim (S 1(1 A) Race Relations Act 1976 and s 1 (2) (b) Sex Discrimination Act 1975).
(iv) The Tribunal must therefore compare the employer's treatment of each of the Claimants with his treatment of real and/or hypothetical other persons (the "ucomparators") who are not of the same racial group and/or sex as the Claimants but are otherwise in the same, or not materially different, relevant circumstances (s 3(4) RRA 1976, s) 5(3) SDA 1975).
(v) A person discriminates against another person by way of victimisation if he treats her less favourably than he treats or would treat other persons by reason that the person victimised has . . .(a) brought proceedings under this Act or ... (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 ... unless the allegation was false and not made in good faith (s 2(1) and (2) RRA 1976, s 4(1) and (2) SDA 1975).
(vi) Discrimination may not be deliberate and may consist of unconsciously operative assumptions on the part of the employer. It is incumbent upon the Tribunal to examine indicators from the surrounding circumstances and events both prior and subsequent to the acts complained of in order to assist it in determining whether or not particular acts were discriminatory (Anya v University of Oxford [2001] IRLR 337).
(vii) Inferences or unlawful discrimination may not properly be drawn solely from the fact that the Claimant has been unreasonably treated, although they may properly be drawn from the absence of any explanation for such unreasonable treatment. (Bahi v The Law Society [2004] IRLR 799).
(viii) A person subjects another to harassment where on the grounds of her race/her sex he engages in unwanted conduct which has the purpose or effect of violating her dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her. Conduct shall be regarded as having that effect only if, having regard to all the circumstances, including in particular the Claimant's perception, it should reasonably be considered as having that effect (s 3A RRA 1976, s 4A (1) (a) and (2) SDA 1975).
(ix) Where the Claimant proves facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the Respondent has committed an act of discrimination against the Claimant ... the Tribunal shall uphold the complaint unless the Respondent proves that he did not commit that act (s 54A (2)(a) RRA 1976, s 63A (2)(a) SDA 1975).
(x) The Tribunal had regard to the guidance set out in the case of Igen Ltd v Wong [2005] IRLR 258 in approaching its task.
(xi) The Tribunal shall not consider a discrimination complaint unless it is presented to the Tribunal before the end of a period of three months beginning when the act complained of was done,...or... if it is out of time, if the Tribunal considers in all the circumstances that it is just and equitable to consider the complaint ... and ... any act extending over a period shall be treated as done at the end of that period (s 68 (1) (a), (6) and (7) (b) RRA 1976, s 76(1)(a), (5) and 6(b) SDA 1975).
(xii) A worker has the right not to be subjected to any detriment by any act or deliberate failure to act by her employer on the ground that she has made a protected disclosure (s 47B Employment Rights Act 1996) and it is for the employer to show the ground on which any act or deliberate failure to act was done (s 48(2) of the same Act).
(xiii) An employee who is dismissed shall be regarded as unfairly dismissed if the reason or the principal reason for dismissal is that the employee made a protected disclosure (s 103A Employment Rights Act 1996).
(xiv) It is for the employer to show the reason for dismissal and that it is a potentially fair reason for dismissal within the meaning of s 98 (1) Employment Rights Act 1996. This includes the reason that the employee was redundant within the meaning of s 139 of the same Act; ... that the dismissal was wholly or mainly attributable to ... the fact that the requirements of that business for employees to carry out work of a particular kind ... have ceased or diminished (s 139(1) (b)).
(xv) Where the employer has fulfilled the requirements of s 98(1), the Tribunal shall determine whether, in all the circumstances, including the size and administrative resources of the employer's undertaking, he acted reasonably or unreasonably in treating that reason as sufficient reason for dismissing the employee; that issue to be determined in accordance with equity and the substantial merits of the case (s 98 (4)).
(xvi) An employee who is dismissed shall be regarded as unfairly dismissed if ... applicable statutory procedure has not been completed and ... this is wholly or mainly attributable to failure by the employer to comply with its requirements (s 98A Employment Rights Act 1996).
(xvii) In a claim for breach of contract it is for the Claimant to show, on a balance of probabilities, entitlement to the sums claimed and in respect of any such sums to which entitlement is shown and which fall within the definition of "wages" set out in section 27 of the Employment Rights Act 1996, the Claimants have the right not to suffer unauthorised deductions from their wages under section 13(1) of the same Act. However, a Tribunal shall not consider a complaint under section 13 unless it is presented within three months from the date of the deduction ... or the last deduction in a series of deductions (section 23 (2) and (3) of the same Act). Where the Tribunal is satisfied that it was not reasonably practicable for the complaint to have been presented within three months, it may consider the complaint if it is presented within such further period as the Tribunal considers reasonable (section 23 (4))."
(xviii) The Tribunal was referred in argument to the following additional principal cases: Qureshi v London Borough of Newham (1991] IRLR 264, Nagarajan v London Regional Transport (1999] IRLR 572, New Century Cleaning Co Ltd v Church (2001] IRLR 27, Hendricks v Metropolitan Police Commissioner (2003] IRLR 96, Dresdner Kleinwort Wassersteln Ltd v Adebayo [2005] IRLR 514.
"57. For ease of reference, the material extract from the applicable provision (rule 14) of the 2001 ET Rules is set out below:
"(1) Where, in the opinion of the tribunal, ... a party or a party's representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, ... the tribunal shall consider making, and if it so decides, may make:
(a) an order containing an award against that party in respect of the costs incurred by another party;
(3) An order containing an award against a party ("the first party") in respect of the costs incurred by another party ("the second party") shall be-
(a) where the tribunal thinks fit, an order that the first party pay to the second party a specified sum not exceeding £10,000; ...
(c) in any other case, an order that the first party pay to the second party the whole or a specified part of the costs incurred by the second party as assessed by way of detailed assessment (if not otherwise agreed).
(6) Any costs required by an order under this rule to be assessed by way of detailed assessment may be so assessed in the County Court in accordance with the Civil Procedure Rules 1998."
The facts
"29. The core (that is non-agency) Home Office employs about 13,000 staff, of whom about 8,000 work in the Immigration and Nationality Directorate. The need for interpreting staff has varied considerably over the years according to the changing pattern of immigration and asylum seekers from various parts of the world. This has resulted in an ebb and flow of need for interpreters in different languages which is difficult to predict in advance.
30. The Respondent has employed only three interpreters over the years as staff members, including the Claimants. The last to be employed was Mrs Khan and the third employee has retired. Increasingly the need for interpreting services has been satisfied by the use of freelance interpreters called upon as the need for interpretation in various languages has demanded. About 6,000 freelance interpreters were being used by the Respondent at the time of the Claimant's dismissal some of whom were on 24 hour call to attend or carry out telephone interpreting duties as the urgency of the situation required.
31. The Claimants were employed as specialist interpreters in their various languages on a salary scale which was set out in their letters of appointment and which for the purposes of establishing a payscale was equated to the civil service general scale of Executive Officer (EO). It was common ground between the parties that the Claimants' contracts did not include the customary flexibility or mobility clauses which would entitle the Respondent to require a member of staff within reason to perform different duties or to move geographically their place of employment. The Claimants were based at Terminal 3 at Heathrow but willingly travelled occasionally to other locations nationwide as the need arose. They worked from 10 am to 5pm Sunday to Thursday or sometimes Monday to Friday, but remained to complete any interview which overran their finishing time.
32. The Claimants' tasks were to assist Immigration Officers in interpreting at interviews with passengers arriving in a variety of circumstances which required interviews to be conducted and to translate any documents presented by such passengers or their representatives. The Claimants' annual appraisal of their performance of their duties revealed a consistent grading of outstanding professionalism in all respects.
33. However, as early as 18 October 1988, when redundancy calculations were done by the Respondent and letters flagging up the possibility of redundancy were sent to the Claimants consequent upon the effect that changing visa requirements was having on the demand for interpreters, it appears that the Respondent's policy in regard to the employment of interpreters was changing. The Bratt Report of April 1990 and the Wheelhouse Report of 1996 reviewed the use of staff interpreters in the light of fluctuating language needs as opposed to the use of freelance interpreters as and when the need arose. A further review in 2000 expressed the view that full-time staff interpreters were not the most cost-effective way of meeting unpredictable and fluctuating future needs and suggested that the possibility of their redeployment be looked into. It also recommended the setting up of a Central Interpreters' Unit to standardize the terms of payment and engagement of freelance interpreters at the various ports of entry and other immigration establishments where they were used. The CIU was set up in September 2000 and its newsletter at Christmas 2000 included an article featuring the Claimants, with photographs.
34. Over the years freelance interpreters have increasingly been used and as their rates of pay have arisen in line with external market forces it was clear that their use was not invariably a cost-effective option especially when they were block-booked for a period of a week at a time, although the Respondent does not bear the cost of sick leave, pensions and other incidents of the employment relationship in respect of them. The Respondent was unable to point to a formal specific decision having been taken to cease to employ staff interpreters and move to the use of freelancers, describing such a decision as having been "lost in the mists of time". However, it was clear to the Tribunal that such a decision must indeed have been taken since its de facto outworkings were that no one was employed as a staff interpreter after Mrs Khan in 1985 and the use of some thousands of freelance interpreters has built up over the years. The main thrust of the various reports and reviews on the issue bear out that this was the policy direction in which matters were moving.
35. The Claimants grew to resent the use of freelance interpreters in preference to themselves. On 16 August 1995 Mrs King wrote a strong letter of complaint to her line manager regarding the use of a freelance Farsi interpreter in preference to herself when she herself had no work to do at Terminal 3. She ended her letter by stating that she had a case for constructive dismissal. This became a recurrent complaint, including its being noted by the Claimants in some of their annual appraisal reports. The Claimants have both argued throughout their employment that there was more than enough interpreting work to keep them employed on a full-time basis and that they themselves should be fully used in preference to freelancers."
"Dear John [Ferret, UKIS]
Thank you for your letter dated 24 October regarding Marti Khan and Odette King.
I am aware that both Marti and Odette have been deemed fit to work as of 30 September and that HRD Postings Team are looking at suitable Interpreter posts for them. Both are on full pay whilst positions are found and Postings Team will be In contact with them soon.
Copies by fax to: Odette and Marti
Yours sincerely
STEVE BARNETT"
"Dear Mrs Khan,
This is to advise you that with effect from 07th January 2003 you have been on special leave with pay. You will continue to receive special leave whilst HRD consider the outstanding issues regarding your posting. The purpose of this letter is to advise you that whilst on special leave the terms and conditions of service remain unchanged.
The terms of this period of special leave are as follows:
i. you must advise me of any period when you will be away from your home and cannot be contacted;
ii. you will continue to be entitled to take annual leave during this period of special leave and must comply with the normal arrangements for the taking of leave. You should therefore submit your annual leave sheet to your line manager in order that your leave may be properly authorised before you take it. You should also notify your line manager of any leave you have pre-booked prior to the period of special leave. In general there are no management reasons to prevent you from taking this leave and the expectation is that you will take it. Therefore if the period of special leave continues beyond your current leave year, you will not be allowed to carry forward more than 9 days untaken leave into the next leave year unless your circumstances are wholly exceptional;
iii. you will be paid during this period of special leave unless otherwise advised.
Should you wish to discuss anything further please do not hesitate to contact me on the number above.
Yours sincerely
Rabia Morley
Human Resources Manager"
"The Tribunal accepted the Respondent's evidence that the Claimants were genuinely difficult to place in alternative posts. The Tribunal also accepted that the Respondent was trying to effect a managed posting for the Claimants since it believed that it would have been very difficult for the Claimants to have satisfied the requirements of the usual competency-based application process in open competition, given their highly specialised experience and an absence from work of almost three years save for one day in January 2003."
"64. On 5 July 2004 Mr Wild wrote to the Claimants stating that they were redundant, that they were not required to accept redeployment (because he had by then received legal advice that their contracts exceptionally did not contain a flexibility/mobility clause), that he was willing to discuss, within a reasonable timescale, the possibilities of redeployment but that if they were not willing to consider redeployment their employment would be terminated on the ground of redundancy.
67. On 30 July 2004 Mr Wild wrote to the Claimants offering them a meeting to discuss their redeployment, and their redeployment only, with Ms Murrell, Assistant Director of IND Human Resources and therefore his subordinate in his own department.
68. The Claimants' individual meetings with Ms Murrell took place on 23 August 2004 in the presence of a union representative. Her function was essentially to hand out the two EO job descriptions to the Claimants. They regarded her as a mere "post-woman" for Mr Wild."
"75. The Tribunal accepted the evidence of Mrs Ackland, Deputy Director of the HR department, Ms Murrell's superior and the eventual dismissing officer, that it was in the aftermath of these two letters from the Claimants and as a result of their reiterated refusal to accept the jobs offered that she decided to dismiss the Claimants during early to mid November 2004, even though the dismissal letters were not actually written until 4 February 2005. The Tribunal had before it termination figures for the Claimants prepared on 23 November 2004 and accepted that the delay was due to Christmas holidays and the necessity to prepare the paperwork..
76. On 5 November 2004 the Claimants had also written to Sir John Gieve, the Permanent Secretary, and registered another formal grievance against Human Resources and Treasury Solicitors regarding their grievances and redundancy process in a letter to Mr Jeffrey. On 7 January 2005 they wrote to Charles Clarke, the Home Secretary. These letters were stamped "Treat Official" on 18 November 2004 and 3 February 2005 respectively and the Tribunal accepted that there was a certain time-lag before these letters were passed to the HR Department. The Claimants wrote again to Sir John Gieve on 2 February 2005, which letter was stamped "Treat Official" on 9 February.
77. Redundancy figures were sent to the Claimants in letters dated 26 January 2005 from Ms Murrell. Mrs Ackland wrote to the Claimants on 28 January 2005 regarding the move to termination of their employment and sent letters of dismissal to each Claimant dated 4 February 2005 terminating their employment with immediate effect. The letters set out their rights of appeal, which the Claimants duly exercised. The dismissal was upheld. Mrs Ackland told the Tribunal that she had decided that the Claimants were not entitled to compensation under the CSCS because they had refused the suitable alternative jobs which Ms Murrell had offered them and this precluded them from entitlement under the scheme. Mr Gautry, union representative, confirmed that there was no automatic entitlement and that suitable alternative employment must be accepted."
"Dear Mrs Khan
I have received the letters of 4 and 5 November 2004 sent jointly by yourself and Mrs King.
As you have rejected the offer of suitable alternative employment made to you, and as Sue Murrell explained to you in her letters of 25 October and 2 November, the Home Office will now move to termination of your employment by reason of redundancy. A separate letter will be sent to you about this in the next few days.
I am aware that you have appealed to Bill Jeffrey against this and your appeal will be considered by Ros McCool, Director HRD, in due course.
Yours sincerely
Frances Ackland"
The documents
"8.1 Special leave may be granted for the purpose of dealing with short-term domestic problems or to allow for satisfactory arrangements to be made for coping with longer-term problems. Each individual case is dealt with on its merits and careful account taken of the particular circumstances, the nature of the domestic problem and the needs of the Office. Paragraph 8.24 explains how to apply. Further information can be found HON 12411990.
82 Heads of Unit, or equivalent, have authority to grant special leave with pay up to a maximum of 5 days on any one occasion for domestic reasons.
Examples of the sort of domestic circumstances in which Special Leave with pay for up to 5 days may be granted are:
a. marriage, provided you
i. intend to return to work after marriage;
ii. were in post before 1 March 1990;
iii. do not qualify for 6 weeks annual leave entitlement, and
iv. have not already had a period of marriage leave;
b. exceptional or unforeseen domestic difficulties at the time of the birth of a child;
c. the short-term care at home of a close relative or dependant,
d. domestic crisis such as serious illness or death of a close relative or dependant;
e. unavoidable severe damage or disruption to your property such as fire, flooding or burglary, requiring your presence at home; and
f. inability to return from detached duty due to transport difficulties;
g. paternity leave – see paragraph 8.5 for details"
"2877 The payment of shift disturbance allowances to regular shift workers will continue, subject to the conditions set out in Code paragraph 2878 and 2879:
b. during the following temporary absences from shift working
i. temporary transfer to day work at the behest of management, including day work during the temporary suspension of a shift roster
ii temporary absences on official business
iii. official authorised further education occurring during shift working. (Any cases of doubt should be referred to Training Division, the Office of the Minister for the Civil Service (OMCS)).
iv. paid sick leave (certificated or self-certificated)
v. paid special leave, including that authorised in accordance with the terms of paragraph 13 of Annex A to EC/324
vi. paid local absence authorised under the terms of paragraph 13(i) of Annex A to EC/324.
2878 The provisions of Code paragraph 2877 will apply, subject to the following conditions:
c. the total of temporary absences listed under sub-paragraph 2877b which may attract continuity of payment will be limited to 60 days in any period of 12 months. Weekends occurring within a period of absence will count towards the total for that period, but weekends occurring at the beginning or end of a period of absence will not count towards the total for that period."
Unfair dismissal
"The Tribunal unanimously concluded that the reason for the Claimants' dismissal was redundancy within the meaning of s 139 (1)(b) of the ERA 1996, namely, that the requirements of the Respondent for employees to carry out the work of interpreters had ceased because that work was for business reasons being done by freelancers. The fact that the formal decision was "lost in the mists of time" or that Mr Wild erroneously believed at one stage that the Claimants were not redundant because he believed that they could be compelled to accept alternative jobs did not alter the reality of the situation. The Tribunal formed the view that the Claimants had in fact been redundant in the statutory sense since 1988 or 1990 and that this was a genuine redundancy situation. What was striking was the Respondent's failure to grasp the nettle for a period of about 15 years. It seemed to the Tribunal that if the Claimants had not raised complaints about being under -utilised and paid less than freelance interpreters the situation may well have continued until their retirement or until some other event brought their situation to the attention of senior management. However, as professionals who were proud of their skills, they wished to use them to the full and did not find it acceptable that they were being paid to do very little or that their pay was not linked to the increasing rate paid to freelancers. It was also clear to the Tribunal that there was a strong sense of competitive rivalry among interpreters and the Claimants no doubt felt it keenly when their freelance colleagues were utilised or paid more than themselves."
Whistle-blowing
Race discrimination
"In relation to the Claimants' complaints regarding the Respondent's treatment of their grievances: The Tribunal found on all the evidence before it that the Respondent had treated the Claimants' grievances regarding race and sex discrimination differently from their other grievances in that the latter were seen as substantive, taken seriously and addressed whereas their discrimination complaints were not. This can clearly be seen from Miss Young's analysis of what the crux issues were and her non-perception of any other issue despite the clear wording of the Claimants' grievance. It can also be clearly seen from Mr Barnett's substantive letter of response on 20 September 2002 to the Claimants' first formal grievance of September 2001. In four and a half pages letter a total of four lines dealt with Miss Young's decision not to proceed under the Prevention and Tackling of Harassment Procedure. This did not appear under his heading "Substantive Issues" which contained all of the other matters raised by the Claimants. There was no further reference whatever in his letter to their race or sex discrimination complaints. He seems to have regarded discrimination grievances as an adjectival rather than a substantive matter."
Victimisation
Harassment
"However, the Respondent had sent the Claimants to the IBU in ignorance of the actual conditions there and at once accepted the unsuitability of those conditions when the matter was raised by the Claimants and did not ask them to return to the IBU. In respect of both matters, the Tribunal found no intention to harass on the part of the Respondent and, because of its prompt responses to the Claimants' raising of these matters, the Tribunal concluded that it should not reasonably be considered as having that effect in all the circumstances."
Contractual issues
"The Claimants' complaints that the Respondent is in breach of their contracts in not having paid them shift disturbance allowance during their period of sickness absence beginning in November 2001 and their period of special leave from 1 October 2002 until 4 February 2005 are well-founded and succeed to the extent that they are each entitled to be paid for the maximum period of 60 days during each 12 month period of their absence from shift-working commencing on the respective start-dates of their extended sickness absence in late October/early November 2001, recommencing on 7 January 2003 and terminating on the date of their dismissal."
The Claimants' case
"In relation to the Claimants' dismissal the Tribunal found that Mrs Ackland's decision to dismiss was made in November 2004 because of what she saw as the Claimants' final refusal to accept the jobs offered. The entire prior period was punctuated by ongoing Tribunal proceedings, included an aborted Hearing in September 2004. The Tribunal accepted that the Claimants' ongoing grievances and Tribunal applications were part of the picture and very probably gave added impetus to the Respondent's desire to reach a prompt solution. However, the Tribunal found no obvious connection between any of the Claimants' individual protected acts and any particular act of the Respondent regarding which the Claimants have complained to this Tribunal. It appeared to the Tribunal that the unfolding of events had acquired its own momentum without particular reference to protected acts. Any attempts by the Respondent to make a job offer or any other positive move in the period leading up to a Tribunal CMD (of which there were several) are readily explicable as a desire to demonstrate itself in the best light and in any event cannot be seen as "less favourable treatment"."
The Respondent's case
Discussion and conclusions
The questionnaire
The discrimination points
"Annex
(1) Pursuant to section 63A of the 1975 Act, it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the employer has committed an act of discrimination against the claimant which is unlawful by virtue of Part 2, or which, by virtue of section 41 or section 42 of the 1975 Act, is to be treated as having been committed against the claimant. These are referred to below as "such facts".
(2) If the claimant does not prove such facts he or she will fail.
(3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that "he or she would not have fitted in".
(4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal.
(5) It is important to note the word "could" in section 63A(2). At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.
(6) In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts.
(7) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 74(2)(b) of the 1975 Act from an evasive or equivocal reply to a questionnaire or any other questions that fall within section 74(2) of the 1975 Act.
(8) Likewise, the tribunal must decide whether any provision of any relevant code of practice is relevant and, if so, take it into account in determining such facts pursuant to section 56A(10) of the 1975 Act. This means that inferences may also be drawn from any failure to comply with any relevant code of practice.
(9) Where the claimant has proved facts from which conclusions could be drawn that the employer has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the employer.
(10) It is then for the employer to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act.
(11) To discharge that burden it is necessary for the employer to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since "no discrimination whatsoever" is compatible with the Burden of Proof Directive.
(12) That requires a tribunal to assess not merely whether the employer has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.
(13) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice."
"24 The second ingredient in the statutory definition calls for a comparison between the treatment afforded to the complainant in the relevant respect with the treatment the employer affords, or would afford, to other persons "in those circumstances".
26 The other approach is that when considering whether a complainant was treated less favourably there should be factored into the comparison features which make the situation of the complainant and the control group fairly comparable. The control group should be limited to employees who have not done the protected act but whose circumstances, in the material respects, are fairly comparable. This approach was adopted by the Employment Appeal Tribunal in Kirby v Manpower Services Commission [1980] ICR 420 and by the Court of Appeal in Nagarajan v London Regional Transport [1998] IRLR 73, 76, para 13 (this point was not the subject of the subsequent appeal to your Lordships' House [1999] ICR 877).
27 There are arguments in favour of both approaches. On the whole I see no sufficient reason for departing from the former approach, adopted by Slade U in the Aziz case [1988] ICR 534, 545—546. The statute is to be regarded as calling for a simple comparison between the treatment afforded to the complainant who has done a protected act and the treatment which was or would be afforded to other employees who have not done the protected act.
28 Applying this approach, Sergeant Khan was treated less favourably than other employees. Ordinarily West Yorkshire provides references for members of the force who are seeking new employment."
"The law has tried to strike the balance between on the one hand making such claims impossible to sustain, and on the other not subjecting employers to unwarranted and unfair findings of discrimination. The statutory burden of proof, as interpreted in Igen, by which of course we are bound, directs tribunals how the issue should be approached. Provided tribunals adopt a realistic and fair analysis of the employer's explanation at the second stage, we see no justification for requiring positive evidence of discrimination at the first stage."
"29 Contrary to views sometimes stated, the third ingredient ("by reason that") does not raise a question of causation as that expression is usually understood. Causation is a slippery word, but normally it is used to describe a legal exercise. From the many events leading up to the crucial happening, the court selects one or more of them which the law regards as causative of the happening. Sometimes the court may look for the "operative" cause, or the "effective" cause. Sometimes it may apply a "but for" approach. For the reasons I sought to explain in Nagarajan v London Regional Transport [1999] 1CR 877, 884—885, a causation exercise of this type is not required either by section 1(1)(a) or section 2. The phrases "on racial grounds" and "by reason that" denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact."
The other discrimination issues
Victimisation
Harassment
Holiday pay and notice pay
The rule 3 points
Automatic unfair dismissal
The allowance
Costs
Result