United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For T-Systems	MR JONATHAN COHEN (of Counsel) Instructed by: Messrs Kimballs LLP Solicitors Power House Davy Avenue Milton Keynes MK5 8RR
For Miss K Raju	MR KEITH KNIGHT (of Counsel) Instructed by: Messrs Shah & Burke Solicitors 490-492 Neasden Lane North London NW10 0DG
For Allied Worldwide Ltd	MR JONATHAN CROSFILL (of Counsel) Instructed by: Norris Bazzard & Co 111 High Street Old Amersham Buckinghamshire HP7 0DY


 


SUMMARY

Sex Discrimination: Contract Workers

Complex Sex Discrimination Act 1975 case involving contract workers. Allowed by consent. It was not permissible to remit the case to the Employment Tribunal as the opportunity to put all arguments and evidence was available at the Employment Tribunal when all parties were represented and it would be to expose the Respondents to new claims for the first time.


 


HIS HONOUR JUDGE McMULLEN QC

1. This case ultimately is about disposal of an appeal by consent. The judgment represents the views of all three members. We will refer to the parties Ms Raju as the Claimant and the two Respondents as "Allied" for Allied Worldwide Ltd and "T-Systems" for T-Systems Ltd.
2. It is an appeal against a judgment of an Employment Tribunal sitting over three days plus two days in discussion at Bedford (Chairman: Mr G T Plenderleath) registered with reasons on 8 September 2005. The Claimant and the Respondents were represented, as here, by respectively Mr Keith Knight, Mr John Crosfill and Mr Jonathan Cohen, all of Counsel.
3. The fact that all have reappeared today has been of great assistance in the way in which we have been able to deal with the case. The parties exchanged sequentially Skeleton Arguments and Mr Knight had the opportunity to see the way in which the appeals were being put.
4. Both the Respondents appealed against the judgment of the Employment Tribunal which was in two parts. As to the first, the Tribunal upheld a claim against both Respondents of victimisation, contrary to the Sex Discrimination Act 1975. As to the claim of direct discrimination, both Respondents were acquitted. There is no appeal and no cross-appeal in respect of that matter by the Claimant.
5. As is to be expected, where the parties are represented as skilfully as they are here, a good deal of common ground has emerged so that Mr Knight very properly accepted arguments raised by both Respondents. He accepted the basic facts (which we will recite in a moment) and he accepted the analysis of the law as presented respectively by Mr Cohen and Mr Crosfill.
6. Thus the simple issue was whether or not there were errors of law. Given that that is accepted, the issue was whether or not the judgment was unarguably right, notwithstanding those errors. Again, Mr Knight accepts that the Judgment should be set aside in respect of those parts which relate to the issues on appeal.
7. This is a matter which we are happy to deal with under paragraph 15 of the Practice Direction which enables a disposal by consent in certain circumstances. Usually, where it involves the setting aside of a judgment, it is necessary to give a short judgment. We say, at the outset, that we are satisfied from the representations we have heard and from the careful Skeleton Arguments that this is a proper case in which we can exercise our powers under the Practice Direction to set aside those parts of the judgment by consent, which are the subject of appeal.

The facts

8. The basic facts are agreed and are as follows:

(a) the First and Second Respondents were both engaged to work on an IT project for an end user (Daimler-Chrysler UK)

(b) for the purposes of that work, the First and Second Respondent both provided staff to work at Daimler Chrysler's premises.

(c) of relevance for present purposes is Scot Lester, an employee of the Second Respondent. Scot Lester fulfilled the role of team leader on the project. As that title implied, Scot Lester co-ordinated the work to be done.

(d) many of the staff members allocated to the project by the First Respondent were contract workers. This included the Claimant and Nigel Whiteside.

(e) the Claimant's claim before the employment tribunal was that Nigel Whiteside had treated her less favourably as a result of her sex, essentially by harassing her in the workplace.

(f) given that both the Claimant and Whiteside were contract workers, this gave rise to interesting issues of vicarious liability on the part of the First Respondent for the discrimination of a contract worker. Ultimately, the employment tribunal round that the First Respondent were not so liable. There is no cross appeal by the Claimant against this finding.

(g) the Claimant further claimed that she had complained to Scot Lester about the behaviour of Nigel Whiteside and that despite the complaint, Scot Lester had not acted. The Claimant did not suggest that this was an act of sex discrimination on the part of Scot Lester and Scot Lester was never cross examined to the effect that it was, though the employment tribunal found that it was and that Scot Lester would have treated the complaint of a male worker more seriously. In any event and unsurprisingly, the employment tribunal found that since the Claimant was not a contract worker of the Second Respondent, she was not entitled to claim against it for this alleged act of discrimination and the complaint failed.

(h) the Claimant also claimed that the termination of her contract by the First Respondent was an act of victimisation. The difficulty with this claim for the Claimant was her inability to identify any protected act. Though the Claimant suggested that she had complained about the conduct of Nigel Whiteside, she claimed tl1at the complaint had been made to Scot Lester. Since no complaint had been made to the First Respondent (and the First Respondent gave evidence to the effect that it was not aware of any comp1aint having been made), the victimisation complaint did not succeed.

(i) these were the three complaints made by the Claimant. All three had failed. There is no cross appeal in respect of any of these complaints.

(j) the employment tribunal went on however to consider a claim under s42(1) of the 1975 Act. This was despite counsel for the Claimant specifically stating at the start of the hearing that he was making no claim under the aiding and abetting provisions of the Act.

(k) section 42(1) requires firstly that it is established that a person has done all acts 'made unlawful by this Act', and then that another person has knowingly aided that unlawful act.

(l) the employment tribunal found that Scot Lester decided to terminate the Claimant's contract. Scot Lester so decided either because of the Claimant's sex or because she had complained to him about the behaviour of Nigel Whiteside (it is not clear whether the employment tribunal have attributed two different motives to Scot Lester or consider that his mental processes involved both direct discrimination and victimisation). However the Second Respondent could not be liable for that discrimination because the Claimant was not a contract worker of theirs (judgment paragraph 16.9).

(m) notwithstanding that, the employment tribunal, at paragraph 16.12 of the judgment, found that the First Respondent victimised the Claimant by terminating her contract, because the First Respondent was "responsible for this act of victimisation". The employment tribunal rely in that paragraph upon a concession from Mr Crosfill (Counsellor the First Respondent). Mr Crosfill plainly made no such concession. In fact, his arguments were precisely to the opposite effect.

(n) the employment tribunal went on to find that because Scot Lester had decided that the Claimant's contract should be terminated, he knowingly, assisted the unlawful action of the First Respondent. Accordingly, the Second Respondent was liable for the victimisation of the Claimant.

9. The analysis of the claims reveals that the concession said to have been made was not made and it is submitted by Mr Cohen that that is the sole bridge to liability for victimisation which was fastened upon the Respondents.
10. We accept the agreed analysis of the law on the relevant issues is as follows:

a. The first ground of appeal relies upon a well-settled principal of natural justice the right to be heard. The tribunal fell into error both by failing to permit the Respondents to be heard and by deciding a case that they had no jurisdiction to entertain.

b. It is well established that where a tribunal are contemplating deciding a case on a basis not advanced by the Claimant before them then it is essential that the opposing party be given a proper opportunity to he heard on that issue. For example see British Gas Services Ltd v McCall [2001] IRLR 60 at paragraph 31

"It is important that tribunals in such cases should deal with the complaints 'less favourable treatment' as they are defined by the applicant and not as the tribunal subsequently chooses to define them. If a tribunal finds less favourable treatment in some act or omission of which the applicant has not complained there is a grave danger that there will have been a breach of the rules £?f natural justice because the other party will not have been put on notice that this might be held against it."

c. Deciding the claim on a basis not advanced by the Claimant goes beyond a mere breach of the rules of natural justice but goes to the very jurisdiction of the tribunal. It is claimed in the Respondent's answer that 'a tribunal is not bound to deal with a claim solely on the basis of the competing arguments before it' [Respondent's answer para 8]. Even if that is right that does not entitle a tribunal to seek out claims or complaints not raised by a claimant and to decide them against a Respondent without notice. There is no jurisdiction to entertain a complaint not advanced by the Complainant. See Chapman and another v Simon [1994] 1 IRLR 124 at para 41 and 42 per Peter Gibson LJ

"Complaints of racial discrimination are by their nature serious, The complainant who can establish unlawful discrimination against him or her on racial grounds has suffered a serious wrong, for which Parliament by the Race Relation Act 1976 has provided remedies. For the respondent to such a complaint, a serious accusation has been made, particularly so when the respondent is a professional person such as a teacher, and even more so when that teacher is the headteacher of a school containing a high proportion of children of ethnic minorities. For a respondent local authority which has within its area many from ethnic minorities, an allegation of unlawful discrimination is also a serious matter affecting its relationship with the community which it serves. It is therefore appropriate that in .such a case as the present, Industrial Tribunals should perform their duties with meticulous care.

Under s.54 of the 1976 Act, the complainant is entitled to complain to the Tribunal that a person has committed an unlawful act of discrimination, but it is the act of which complaint is made and no other that the Tribunal must consider and rule upon. If it finds that the complaint is well founded, the remedies which it can give the complainant under s.56(1) of the 1976 Act are specifically directed to the act to which the complaint relates. If the act of which complaint is made is found to be not proven, it is not for the Tribunal to find another act of racial discrimination of which complaint has not been made to give a remedy in respect of that other act".

d. In additions to submissions in relation to findings of fact the tribunal's attention could and would have been directed to matters of law. In particular the tribunal would have been directed towards the proposition that in order that a complaint to fall within section 4(1)(d) of the Sex Discrimination Act 1975 the complaint must be about an unlawful act see Waters v Commissioner of Police for the Metropolis [1997] IRLR 589. The tribunal have properly concluded that (whilst reprehensible) the acts of NW were not unlawful. In those circumstances, it was not open to the tribunal to conclude that the complaint to SL (even on the Claimant's case) was a protected falling within section 4(1)(d)".

It is accepted, therefore, that applying those authorities, the Tribunal decided a matter which was not in issue or, as Mr Knight puts it, that had not been put in the way suggested.

11. There can be doubt, as has been said on behalf of the Respondents today, that the conduct of Mr Whiteside was deplorable and is much regretted. This point is made in open Court and we hope it will go some way towards alleviating the distress which the Claimant obviously and genuinely feels about her treatment. However, as is plain from our judgment (setting aside parts of this judgment of the Employment Tribunal), this is a case where there genuinely is no remedy.
12. The sole issue before us is as to the disposal of the appeal. There are two options. As contended for by the Respondents, this matter should be disposed of finally today and without remission to the Employment Tribunal. If they are wrong about that, then it should be remitted to a differently constituted Tribunal. On the other hand, Mr Knight submits that the matter should be sent to a different Tribunal because there are still issues to be tried. We therefore heard argument from all three Counsel about which of those options was correct.
13. On behalf of T-Systems, Mr Cohen argued that there can be no act of victimisation by Allied, for Allied did not know of the protected act. As he put it, and we agree with him, there was a bridge which established liability only through Mr Crosfill's "concession" for Allied. Understandably, he was surprised to hear his concession related in the Tribunal judgment, for it was never made. So that cannot, of course, be any form of bridge. We accept Mr Crosfill's point that the same anxiety will have occurred to Mr Lester, for Mr Lester is implicated in a matter which was never put to him in cross-examination.
14. In addition to there being no knowledge of a protected act, there never was a protected act, as Mr Cohen argues. This is because of the analysis given to the facts in this case following the judgment in Waters (above). Whatever may be the state of the law, and it is accepted by Counsel for the Respondents that this it is not in a popular state, it does represent a clear analysis applicable to this case. The starting point is s4(1)(d) of the Sex Discrimination Act 1975. That does not require a specific allegation mentioning the Act, but it does require that there be some allegation of matters which would amount to a breach of the statute.
15. Mr Cohen submits that conduct, albeit unpleasant, is not the subject of a complaint under this statute unless it is also unlawful discrimination. On the Tribunal's findings properly analysed against the accepted errors, the case should go no further. If the matter goes back to a new tribunal, there would be a full hearing for the first time of the case now put as one based upon an oral complaint made by the Claimant to her employer, and upon an analysis of the law which admits of the concept of recklessness. Those matters should not be raised except by cross appeal here or genuine appeal. He accepts that when the statute was amended following judgments relating to police officers, the position of contract workers did not attract the attention of the law-makers. There are difficult issues in a modern environment where workers come together from different employment relationships which, as appears, are not fully covered by the statute. Put neutrally, where a group of workers work as a unit but are supplied by different employers (some may not be employed at all), there is bound to be someone in overall control. But that is not an issue which is available in this case.
16. Mr Crosfill supported the submissions made by Mr Cohen and continued to assert, on authority, that there was no reason for this case to be resubmitted to an Employment Tribunal. Although there is reference to an oral complaint in the Claimant's claim form, once the matter was put in clear terms by her Counsel at the outset of the Tribunal hearing, the oral complaint was not an issue.
17. Mr Knight contended that he should have the right to argue recklessness as a basis of liability under section 4. He should also be allowed to address the oral complaint which, although not put to the Employment Tribunal, was put in the claim form. Mr Knight resists the description by the Respondents of the Tribunal conjuring up liability, but he concedes that he did not put the case in the way in which the Tribunal decided it.
18. In our judgment, the arguments of the Respondents are correct. For reasons I gave on a ruling in case management yesterday, the long jurisprudence of the EAT, approved by the Court of Appeal, indicates that new points should not be taken unless there are exceptional circumstances. It would have been open to Mr Knight, if he considered that there were serious points to be made, to have argued on a cross-appeal, or on appeal, the point relating to recklessness and to argue further against the judgment in Waters. It was also open to him to take a point about the oral complaint. It is not now appropriate for this matter with new grounds to go afresh to an Employment Tribunal.
19. At an Employment Tribunal, as before any Court, the parties are under a duty to put the whole of their case to the Tribunal. This is not a remission for a re-hearing, our normal jurisdiction when a case is sent back to a Tribunal for it to follow a direction of the EAT. This would be, in real terms, an opportunity for the Claimant to put her case again differently in a way which stands a chance of succeeding when the first has failed. That is not the proper function of the EAT or of the Employment Tribunal. Although abuse of the legal process is a term which carries with it, in ordinary language, more than it does in legal language, it is correctly so described. We will not, therefore, allow this case to be remitted to a new Employment Tribunal. We uphold the submissions of the Respondents.
20. It is apparent to us that the changing nature of work would require some amendments to the discrimination legislation. Here is a good example. For the reasons we have given, where people work in a unit, coming from different sources, the legislation could take account of the factors mentioned above. There is specific treatment of contract workers in the Sex Discrimination Act. There have been amendments to deal with specific problems relating, for example, to police officers and it may well now be time to re-examine the reality of certain workplace relations where people are supplied through different contractual; relationships. Against that background, the recent judgment of the Court of Appeal in Hawley v Luminar Leisure Plc & Others [2006] EWCA Civ 18 may be of considerable assistance.
21. We would very much like to thank all three Counsel for the considerable help that we have received today. We would also hope that now that this matter has finally been disposed of, Miss Raju will take away with her the acceptances made on behalf of both Allied and T-Systems of the appalling conduct of Mr Whiteside, and that this may be some solace to her. Those parts of the judgment absolving the Respondents from liability, which have not been the subject of appeal, remain. The appeals are allowed.