United Kingdom Employment Appeal Tribunal

APPEARANCES

EAT/0001/08/LA

 

For the Appellant	No appearance or representation by or on behalf of the Appellant
For the 1st Respondent	MR PETER KIRBY (of Counsel) Instructed by: Kent County Council Legal & Secretariat Sessions House County Hall Maidstone Kent ME14 1XQ
For the 2nd Respondent	MR STEPHEN WHALE (of Counsel) Instructed by: Kent County Council Legal & Secretariat Sessions House County Hall Maidstone Kent ME14 1XQ
For the 3rd Respondent	MR GARY SELF (of Counsel) MR MATTHEW CURTIS (of Counsel) Instructed by: Messrs Eric Robinson Solicitors Queens Keep Cumberland Place Southampton Hants SO15 2YB

APPEARANCES

UKEAT/0002/08/LA

For the Appellant	MR STEPHEN WHALE (of Counsel)
For the 1st Respondent	MR PETER KIRBY (of Counsel)
For the 2nd Respondent	No appearance or representation by or on behalf of the 2nd Respondent
For the 3rd Respondent	MR GARY SELF (of Counsel) MR MATTHEW CURTIS (of Counsel)

UKEAT/0003/08/LA

For the Appellant	MR PETER KIRBY (of Counsel)
For the 1st Respondent	No appearance or representation by or on behalf of the 1st Respondent
For the 2nd Respondent	MR STEPHEN WHALE (of Counsel)
For the 3rd Respondent	MR GARY SELF (of Counsel) MR MATTHEW CURTIS (of Counsel)


 


SUMMARY

PRACTICE AND PROCEDURE

Appellate jurisdiction/reasons/Burns-Barke

Perversity

UNFAIR DISMISSAL

Reason for dismissal including substantial other reason

Procedural fairness/automatically unfair dismissal

RACE DISCRIMINATION

Direct

Inferring discrimination

SEX DISCRIMINATION

Direct

Inferring discrimination

Over long Employment Tribunal Reasons. Meek compliance. Delay in promulgating Judgment. Perversity. Reason for dismissal (s103A). Race and sex discrimination. Victimisation.


 


HIS HONOUR JUDGE PETER CLARK

1. We have before us for Full Hearing three conjoined appeals arising out of proceedings before the Ashford Employment Tribunal in which the parties were Mrs Burmis, Claimant and (1) The Governing Body of Aylesford School (the School) (2) Mr Michael Grosvenor (Mr Grosvenor) (3) Mr Douglas Lawson (Mr Lawson), Respondents. The appeals, numbered 0001 - 3/08/LA are brought respectively by Mr Grosvenor, Mr Lawson and the School against the Judgment of an Employment Tribunal chaired by Ms N Amin promulgated with reasons on 11 October 2007. These appeals are resisted by the Claimant in all respects save for two matters in the appeal of Mr Lawson to which we shall return.

The Proceedings below

2. The case, originally listed for 15 days, occupied some 40 days between 7 November 2005 and 13 October 2006. Whilst it is not unheard of for an Employment Tribunal hearing to greatly exceed the original time estimate, what is unprecedented, in our collective experience, is for the Employment Tribunal to then spend a total of 26 days deliberating in private before promulgating the Judgment and Reasons. That is what happened in this case. The first meeting in Chambers was held on 30 October 2006 and the last on 3 September 2007. The Employment Tribunal's Judgment and Reasons, together with Appendices, totalled 378 pages. It was completed and signed off by the Chairman on 28 September 2007.
3. The delay in disposing of the case and the format of the Reasons has been the subject of sustained criticism before us on appeal. "The Reasons are repetitive, prolix and the structure could have been improved upon." That was the description given by Counsel for the Claimant in resisting these appeals.
4. We would make these observations on the question of prolixity and delay. The format of the Employment Tribunal's Reasons will not set the benchmark for future induction training courses for part-time Employment Judges. There is far too much evidential narrative; what is required, having identified the issues in the case, is a succinct chronological statement of the facts found, explaining where necessary why factual conflicts in the evidence have been resolved by the Employment Tribunal in the way that they have. There must be a concise statement of the law; in the present case (paragraphs 902 – 1008), as Mr Kirby for the School points out, the Employment Tribunal has almost entirely repeated the submissions in closing of Ms Chute, Counsel then appearing for the Claimant, adding its own self direction on time limits (paragraphs 997-1002) and adopting two paragraphs from Mr Kirby's submissions below on "continuing acts". However, it is not suggested that the Employment Tribunal's statement of the law is in any respect incorrect. Finally, the Employment Tribunal's reasoning, applying the law to the facts as found, explaining their conclusions on the issues raised. That decision-making process is to be found in Rule 30(6) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004
5. However, whilst criticism may be fairly levelled at the structure of this Employment Tribunal's Reasons we accept Mr Self's broad submission on behalf of the Claimant that these Reasons, whilst over long, meet the requirements of Rule 30(6). They are 'Meek-compliant'. The issues are identified, the facts found, the law is correctly stated and, reading the Reasons as a whole, the Employment Tribunal has explained why it reached its conclusions on the issues.
6. As to delay, we have taken into account the judgment of Mummery LJ in Bangs v Connex South Eastern Ltd [2005] IRLR 389. Whilst a delay of 1 year in promulgating an Employment Tribunal judgment ought never to happen (the maximum period stipulated by the President of Employment Tribunals is 3½ months) the unusual feature of this case, as we have said, is the number of days spent by the Employment Tribunal considering the matter. It is not a case where there was a large gap in time between the Employment Tribunal's deliberations and production of the Judgment and Reasons by the Chairman (now Employment Judge). The last meeting in Chambers took place 3 weeks before the Chairman completed the final Judgment and Reasons. Thus, absent perversity to which we shall return when considering the individual appeals, the mere fact of delay here is not, of itself, a free-standing ground of appeal.

Representation

7. The Claimant had the advantage of legal expenses insurance to cover her costs below. However, that cover is now exhausted. In the absence of funding Ms Chute, as she is professionally entitled to do, declined the brief on appeal. That left the Claimant in a real difficulty. Responding to these appeals requires more than the mantra, it is all a question of fact for the tribunal. An emergency legal aid certificate was issued on 2 June 2008 and Mr Self agreed to represent the Claimant in these appeals at short notice and with no certainty that a full certificate would be issued. We trust that it will. We should each of us wish to formally acknowledge the enormous assistance which he and his junior, Mr Curtis, have provided in our consideration of this matter. In the circumstances Mr Self's skeleton argument was understandably delayed. However, no objection was taken by Mr Kirby or Mr Whale, appearing for Mr Lawson. A copy was served on Mr Grosvenor, who represented himself on appeal as he did before the Employment Tribunal. He did not appear before us but e-mailed his opposition to our considering Mr Self's skeleton argument served out of time. We acceded to Mr Self's application for an extension of time; giving Mr Grosvenor an opportunity to respond to the substance of the document. He has not done so. We have seen earlier correspondence between the case handler, Ms Anilkumar and Mr Grosvenor concerning his document dated 3 December 2007, setting out his grounds of appeal. For the avoidance of doubt we have treated that document as his skeleton argument, as he invites us to do by an e-mail dated 2 June 2008, and have taken it into account in our deliberations.

Synopsis

8. The Claimant was born in Birmingham on 18 April 1968. She is black and of Jamaican ethnic origin. She joined the school as an agency supply teacher on 30 April 2001. She became a permanent member of staff in January 2002. Mr Lawson was Deputy Head Teacher at the School from September 2000. He became Acting Head Teacher from 12 January 2004 until April 2005 during the sick absence of the Head Teacher, Mr Carruthers. On 1 May 2005 Mr Lawson was appointed Head Teacher in succession to Mr Carruthers.
9. Mr Grosvenor joined the School staff teaching in the French Department in 1983. He was made Head of Year shortly after Mr Lawson's arrival in 1992 and then further promoted to a Key Stage Manager, discharging a pastoral role.
10. The Claimant was the only black teacher at the School. The Employment Tribunal found (paragraphs 114 – 136) that from May 2001 she was regularly exposed to racial abuse by pupils. Although she reported this treatment to, among others, Mr Lawson, no proper action was taken to prevent this behaviour. Further, the Claimant was exposed to racial remarks by teachers (paragraphs 151 – 230). In particular, whilst rejecting the Claimant's complaint that a remark by Mr Lawson, "Is the sun hot enough for you, Sam" had racial connotations (paragraph 218), the Employment Tribunal did accept (paragraphs 307-8) that in private conversations Mr Lawson used the words "dark meat" and "nigger" to describe the Claimant.
11. The events which precipitated her dismissal by the School in June 2004 occurred on a school trip to Marchant Hill between 9-11 July 2003. It was the School's case that on that trip the Claimant was guilty of gross misconduct in the form of neglect of her duties. Mr Grosvenor was the senior staff member in charge on the trip; also on the trip were the Claimant and another teacher, Mr Crombie. The specific complaints against her were that she engaged in sexually explicit discussions in the presence of two older pupils who were acting as helpers and that staff had failed to prevent drug taking by a pupil and member of staff (Mr Grosvenor).
12. It was the Claimant's case that she was subjected to sexual harassment by Mr Grosvenor, that when she complained about it her grievance was, as in the case of the earlier racial abuse by pupils and staff, not properly investigated. She also 'blew the whistle' on cannabis smoking on the school trip and as a result she was disciplined and finally dismissed. She further complained to the Employment Tribunal that Mr Grosvenor and Mr Crombie were treated more favourably than her following the school trip. They were allowed to resign without first being suspended, as she was, and they were given favourable references whereas she was not. The issue of a reference given by Mr Lawson on Mr Grosvenor to his new employer developed into a trial within a trial occupying 5 days of the hearing before the Employment Tribunal.

The Employment Tribunal's conclusions

13. These are set out in the Employment Tribunal's Judgment, and may be summarised as follows:

Mr Grosvenor

14. He directly discriminated against the Claimant under s1 of the Sex Discrimination Act 1975 by sexually harassing her. The harassment provisions of s3A were not in force at the relevant time. The harassment consisted of repeated attempts to kiss and fondle her between January and July 2003. The Employment Tribunal found (paragraphs 268 – 272) that Mr Grosvenor had laid a bet with Mr Crombie as to which female members of staff, including the Claimant, would be unfaithful to their spouses. The Employment Tribunal also found, as part of the sexual harassment of the Claimant, that Mr Grosvenor falsely claimed that he had sexual intercourse with the Claimant during the school trip. The Employment Tribunal found that the School's failure to properly investigate the Claimant's sexual harassment grievance against Mr Grosvenor during the period July 2003 until she presented her claim to the Employment Tribunal on 6 July 2004 meant that there was a continuous state of affairs going back to the start of the harassment in January 2003; alternatively, that it was just and equitable to extend time (paragraphs 1017 – 1026).

Mr Lawson

15. The Employment Tribunal found that Mr Lawson directly discriminated against the Claimant on grounds of her sex and race and victimised her in six respects listed at paragraph 12 of their Judgment.

The School

16. (1) unfairly dismissed her. The dismissal was automatically unfair under s103A of the Employment Rights Act 1996 (ERA). Further, it was both substantively and procedurally unfair if, contrary to the Employment Tribunal's primary finding under s103A, the School had shown a potentially fair reason for dismissal.

(2) her dismissal was an act of direct sex and racial discrimination and victimisation.

(3) further discriminated against her on grounds of sex and race and/or victimised her in eight respects listed at paragraph 4 of the Judgment.

(4) was vicariously liable for the discriminatory acts of Mr Grosvenor and Mr Lawson.

However

(a) two alleged acts of direct discrimination were dismissed (Judgment, paragraph 9).

(b) a claim of detriment under s47B ERA was dismissed as being time-barred.

(c) the racial abuse by pupils was not actionable, as was conceded on behalf of the Claimant.

The Appeals

Mr Grosvenor

16. The principal argument advanced by Mr Grosvenor concerns limitation. This issue is also addressed by Mr Kirby in his submissions on behalf of the School, which was held vicariously liable for the discriminatory acts of Mr Grosvenor.
17. We accept the submission by these Appellants that the acts of harassment by Mr Grosvenor between January to July 2003 ended there. Any failure by the School to deal properly with the Claimant's grievance about that harassment cannot be laid at Mr Grosvenor's door, and cannot constitute a continuous state of affairs so far as he is concerned.
18. However, we are satisfied that the Employment Tribunal was entitled to conclude that it would be just and equitable to extend time for bringing this complaint for the reasons given at paragraphs 1019 – 1023.
19. Mr Kirby takes a procedural fairness, rather than substantive point in relation to the Employment Tribunal's finding that it was just and equitable to extend time in relation to the sexual harassment complaint against Mr Grosvenor and through him, the School. He submits that the School (and we include Mr Grosvenor for the purposes of this submission) was not given a proper opportunity to deal with the just and equitable question by way of cross-examination. The point was only raised at the end of proceedings in Ms Chute's closing submissions. We think that there are two answers to that submission. First, at a case management discussion (CMD) held before Ms V.G. Wallis on 1 October 2004 the question as to whether time should be extended was left to the Tribunal conducting the Final Hearing (CMD Order 11 October 2004, paragraph 10). Secondly, as Mr Kirby concedes, no application was made by him (or Mr Grosvenor), for the Claimant to be recalled for the purposes of cross-examination in the light of Ms Chute's closing submissions. In these circumstances we uphold the Employment Tribunal's finding on the just and equitable extension of time.
20. As to Mr Grosvenor's remaining grounds of appeal, under the headings Admissibility of Evidence, Parity of Treatment and Factual Inaccuraries, none of these raise any point of law. Mr Grosvenor lost on the issue of sexual harassment because he was found to lack credibility as a witness; the Claimant's evidence was accepted. That is not altogether surprising given his admissions that he had forged documents and lied to the Employment Tribunal (paragraph 90).
21. Finally, we have considered Mr Grosvenor's submissions under the heading Case Management in the context of the delay by the Employment Tribunal in promulgating its Judgment and Reasons to which we have earlier referred.
22. In these circumstances we shall dismiss Mr Grosvenor's appeal.

Mr Lawson

23. This appeal is directed to the six findings of discrimination/victimisation set out at paragraph 12 of the Employment Tribunal's Judgment.
24. We begin with the concessions made by Mr Self. First, he accepts that it was not Mr Lawson but Mr Glen, who instigated disciplinary action against the Claimant. Accordingly the finding at paragraph 12.2 cannot stand and is set aside. Secondly, he accepts that it was Mr Carruthers, not Mr Lawson, who initially suspended the Claimant in September 2003 (Judgment paragraph 12.3). However, he submits that after 12 January 2004, when Mr Lawson became Acting Head in the absence of Mr Carruthers, the failure of Mr Lawson to lift the suspension was properly characterised as the act of discrimination/victimisation identified in paragraph 12.3.
25. Turning to the submissions advanced by Mr Whale on behalf of Mr Lawson, it is his case on appeal that the adverse findings made by the Employment Tribunal in relation to Mr Lawson's credibility (paragraphs 1078-1081) were based on a flawed chain of reasoning which means that they cannot stand.
26. Central to the Employment Tribunal's findings on credibility were their findings on the reference issue, Mr Whale submits. He has taken us in some detail to the source documents which were in evidence before the Employment Tribunal in order to undermine the Employment Tribunal's findings. We are not persuaded. The Employment Tribunal devote a significant section of their Reasons to the positive reference provided by Mr Lawson in respect of Mr Grosvenor to the Select Employment Agency (paragraphs 731 – 747) and to Filsham Valley School, at which he obtained temporary employment in October 2003 (paragraphs 748 - 821). In the case of Filsham Valley School Mr Lawson generated two versions of the reference on his computer, a 'good' reference and a 'bad' reference (paragraphs 750-751). The Employment Tribunal find his explanations for producing two versions of the reference incredible. Plainly they varied from time to time. We resist Mr Whale's attempt to persuade us to retry this factual question. The Employment Tribunal was plainly entitled to make the findings which it did concerning Mr Lawson's credibility, unpalatable though they may be to him both personally and professionally.
27. As to the specific findings of discrimination against Mr Lawson at paragraph 12 of the Judgment, save for the matters properly conceded by Mr Self we are not persuaded that the perversity threshold has been passed. Indeed, it is precisely the argument advanced by Mr Whale in this case that was deprecated by Mummery LJ in Yeboah v Crofton [2002] IRLR 634. We do not propose to set out the detail of the submissions. In our judgment the Employment Tribunal made permissible findings with which we cannot and will not interfere.
28. Finally we shall deal specifically with the finding of victimisation. Whilst at paragraph 12 of their Judgment the Employment Tribunal appear to "lump together" direct discrimination and victimisation, it is clear from paragraphs 1202 – 1203 that they correctly asked themselves and permissibly answered the issues arising in that part of the claim.
29. Accordingly we shall allow this appeal to the extent that paragraph 12.2 of the Judgment is set aside and paragraph 12.3 is varied whereby that finding is limited to the period after 12 January 2004. All other grounds of appeal are dismissed.

The School

30. We have earlier considered and rejected the general attack on delay on the part of the Employment Tribunal in promulgating its Judgment and Reasons and the point taken on the extension of time granted for the claim of sexual harassment against Mr Grosvenor.

Unfair Dismissal

31. The first question in the School's appeal is whether the Employment Tribunal was entitled to find (paragraph 114) that the principal reason for dismissal was that the Claimant had made complaints of sexual harassment and drug consumption on the school trip. Those were protected disclosures (Reasons paragraph 1198 – 1200). Therefore the dismissal was automatically unfair under s103A ERA.
32. We accept Mr Self's submission that the Employment Tribunal was entitled to reach that conclusion. Even if the Employment Tribunal was wrong to find that the Claimant's conduct complained of by the School on the school trip did not amount to gross misconduct under its disciplinary code, the question remained, what was the reason or principal reason for dismissal? The Employment Tribunal found, having considered all the evidence at inordinate length, that it was not her conduct on the trip but the complaints, amounting to protected disclosures (not challenged in this appeal) which were the principal reason for dismissal. Mr Kirby relies on the fact that the dismissal on the grounds of gross misconduct was a decision reached by a panel of three Governors and upheld by three different Governors of the School on appeal. However, as Mr Self points out, that overlooks the findings of the Employment Tribunal, that Mr Lawson was driving the disciplinary hearing (paragraph 630) and that he, as the presenting officer, seemed to be in control of the hearing (paragraph 647). The Employment Tribunal was critical of the evidence given by Mr Weller, who sat on the appeal hearing (paragraphs 673 – 682) and concluded that the appeal panel had simply rubber-stamped the earlier decision.
33. It follows that the Employment Tribunal's alternative findings of reasonableness under s98(4) ERA are rendered moot. That section is not engaged in an s103A case. Consequently it is unnecessary to examine Mr Kirby's specific complaint that the Employment Tribunal was wrong to find that the School acted unreasonably in excluding tape recordings of conversations made by the Claimant (paragraphs 374 – 8), although that submission, based on Article 8 ECHR considerations not raised below, did not impress us.
34. Mr Kirby made much play of the events of Thursday night during the School trip, as he termed them. The Employment Tribunal made findings of fact in relation to the events of Thursday 10 July 2003 at paragraphs 340 – 357. Mr Kirby complains that in making findings at paragraph 349 about the "truth and dare" game played by the Claimant and Mr Crombie in the presence of two 16 year old pupils the Employment Tribunal omitted to record an admission by the Claimant that she had dared Mr Crombie to remove his trousers and had removed her skirt.
35. We agree with Mr Self that such findings are not critical to the Employment Tribunal finding as to the principal reason for dismissal. It remains open to the School to argue contributory fault at a future remedies hearing. We accept that it was open to the Employment Tribunal to find that the principal reason for dismissal related to the Claimant's conduct (whether it fell to be characterised as gross misconduct under the School's disciplinary policy or not). However, they rejected the School's case on the reason for dismissal and accepted that advanced by the Claimant. They were entitled to so do.
36. Having considered the various ways in which the School's appeal is put we are wholly unpersuaded that any error of law is made out.

Conclusion

37. The Judgment in this case was prepared for consideration by my lay colleagues, following our earlier discussions, at the end of July. On 31 July solicitors for Mr Lawson wrote to the Registrar applying for an Order requiring the Employment Tribunal to provide information as to whether Ms Amin had been out of the country on War Crimes Tribunal business between 7 November 2005 and 11 October 2007 (see paragraphs 1 and 2 above), whether she was out of the country for any other purpose during that same period and whether she was employed in this jurisdiction in any capacity other than as an Employment Judge. That request was apparently prompted by a letter from the Employment Tribunal dated 3 July 2008, informing those solicitors that Ms Amin was then sitting on the War Crimes Tribunal in Kosovo. A request for the information sought made to the Employment Tribunal was referred to this Tribunal by the Regional Employment Judge.
38. I directed that the Claimant's representatives' comments be sought. Unfortunately these were not provided until 15 September. Meanwhile the School joined with Mr Lawson's application by letter dated 21 August.

Conclusion

39. Following three days of argument we have concluded, as indicated above, that the appeals by the School and Mr Grosvenor fail and are dismissed and that Mr Lawson's appeal is allowed to the limited extent stated earlier.
40. We agree with the Claimant's solicitors that the information sought by the Appellants is irrelevant to our considerations in these appeals. At all relevant times, we believe, Ms Amin sat as a part-time Employment Judge. It follows, almost by definition, that she was in practice in other fields at that time. Where and in what capacity she practised is immaterial. The question for us is whether the delay, accompanied by perversity, in promulgating the Employment Tribunal's judgment gave rise to any error of law. For the reasons given we are not persuaded that this was the case. Accordingly these applications are dismissed.