At the Tribunal | |
Before
HIS HONOUR JUDGE McMULLEN QC
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR L COUTHINO (The Appellant in Person) |
For the Respondent | MR N DILWORTH (of Counsel) Instructed by: Messrs Goodman Derrick LLP Solicitors 90 Fetter Lane London EC4A 1PT |
SUMMARY
PRACTICE AND PROCEDURE: Striking-out/dismissal
VICTIMISATION DISCRIMINATION: Other forms of victimisation
The Employment Judge wrongly struck out the Claimant's claim of victimisation under the Race Relations Act 1976 when, post-termination of employment, the Claimant contended the Respondent took steps to avoid paying a sum awarded by the Employment Tribunal and ordered by the County Court.
HIS HONOUR JUDGE McMULLEN QC
Introduction
1. The Claimant, the respondent to this appeal, is an IT specialist. He describes himself as British Asian. In January 1997 he commenced employment with the appellant company, Vision Information Services (UK) Ltd ("Vision"), which is a subsidiary of a US company providing stock management software to major entertainment corporations which sell products in the UK market. From about 2002 the business began to do badly. In November 2002 negotiations began to sell it to a subsidiary of the Rank Corporation called Deluxe Media Services Ltd ("Deluxe"). The negotiations proceeded patchily and appeared to have fallen through altogether in May 2003; but they resumed in late 2003. On 22 March 2004 the Claimant was dismissed, ostensibly for redundancy, with effect from 31 March. Vision's business was sold to Deluxe some four months later, on 31 July 2004.
2. On 28 June 2004 the Claimant brought proceedings in the Employment Tribunal against Vision claiming:
(a) that he had been unfairly dismissed and
(b) that Vision had discriminated against him on racial grounds, both by reference to a long sequence of problems which he claims to have suffered during his employment and by his eventual dismissal.
(In fact the claim was originally brought not against Vision itself but against its U.S. parent; but that error was soon rectified.)
3. In May 2005 the Claimant raised a claim that there had been a relevant transfer of Vision's undertaking to Deluxe within the meaning of reg 3 of the Transfer of Undertakings (Protection of Employment) Regulations 1981 ("TUPE"), and that his dismissal had been for a reason related to that transfer, with the result that all Vision's liabilities arising out of the employment relationship transferred to Deluxe by virtue of reg 5 of TUPE (as applied in the decision of the House of Lords in Litster v. Forth Dry Dock & Engineering Co Ltd [1990] 1 AC 546). Deluxe resisted being joined but by order of the Tribunal dated 28 November 2005 it was joined as Second Respondent.
4. The claim came before a Tribunal sitting at Watford on 25/26 April and 2 May 2006. In a reserved judgment sent to the parties on 26 June 2006 ("the liability judgment") the Tribunal found that there had indeed been a "TUPE transfer" to Deluxe and that the Claimant's dismissal had been for a reason related to that transfer. It held that the dismissal was not for an "economic, technical or organisational ["ETO"] reason" within the meaning of reg 8 (2) of TUPE and that accordingly the dismissal was automatically unfair within the meaning of reg 8 (1). It also found for the Claimant as regards some, but not most, of his claims of racial discrimination.
5. On the basis adumbrated above, liability in relation to both the unfair dismissal and the discrimination claim passed to Deluxe. For reasons which will appear, it is necessary that we set out the precise form which the liability judgment took. It was expressed as follows:
'1. The Claimant's claim for unfair dismissal is upheld.
2. The Claimant's claim of race discrimination is upheld.
3. It is determined that there was a relevant transfer from [Vision] to [Deluxe] within the meaning of regulation 3 of the Transfer of Undertakings (Protection of Employment) Regulations 1981 and that the transfer was the principal reason for the Claimant's dismissal.'
6. There was a remedies hearing on 18/19 July 2006. By a reserved judgment sent to the parties on 5 October 2006 ("the remedies judgment") the Tribunal made the following order
'1. The Claimant is awarded compensation for unfair dismissal in the total sum of £57,025, which is payable to the Claimant by [Deluxe].
2. It is declared that [Vision] discriminated against the Claimant on the grounds of race.
3. Compensation for race discrimination is awarded to the Claimant in the sum of £12,500, together with interest in the sum of £2,781.25, which is payable by [Deluxe].'
It is unnecessary to set out the Tribunal's detailed reasoning which led to those figures, but we should note that the award of compensation for racial discrimination contained no element for aggravated damages. It will be seen that the pecuniary remedies were, correctly, awarded only against Deluxe; but that the declaration named Vision as the discriminator.
7. At both hearings the Claimant, who is evidently both intelligent and articulate, represented himself. At the liability hearing Vision was represented by Mr Pasha of Aaron and Partners LLP and Deluxe by its Human Resources manager, Mr Wright. At the remedies hearing Mr Pasha appeared for both Vision and Deluxe. (On the face of it, their interests might not appear identical; but we were told that, as is common, there were indemnity arrangements in place between the two companies.)"
"15 (1) Any sum payable in pursuance of a decision of an industrial tribunal in England and Wales which has been registered in accordance with industrial tribunal procedure regulations shall, if a county court so orders, be recoverable by execution issued from the county court or otherwise as if it were payable under an order of that court."
The appeal
"There is no jurisdiction for the Tribunal to hear Claimant's Claim. It is a question of enforcement which is not a matter which the employment tribunal has power to interfere with. Any potential victimisation claim would have to flow on link between the bringing of the claim and the less favourable treatment."
'A Chairman, Ms Manley, has therefore decided that it cannot be accepted.'
"6.2.22 I contend that the following behaviour of Rank Nemo constitutes Victimisation as per S2(1) RRA 1976:
-Disposal of Assets without regard to debt owed to me. To make the ET award unenforceable. (From 30/6/2006 to mid 2007)
-Offering a 'settlement' of £20,000 as a take it or leave it. (1/2/2008)
-Declining to enforce an indemnity with my ex-employers. (1/2/2008)
-Misrepresenting the financial situation of the company. (17/10/2008 to 1/2/2008)
-Withholding payment & preferential treatment of other creditors/employees. (1/2/2008)
Rank Nemo have treated me differently and to my detriment when compared to how others (creditors ex-employees & a hypothetical comparator) have or would have been treated, and I believe that the reason for the difference in treatment is my previous proceedings against them. (a protected act)."
"4(2) It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee --
(b) in the way he affords him access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or
(c) by dismissing him, or subjecting him to any other detriment."
"34. It is clear to us, if one is looking, with Lord Nicholls, at examples of the kind of non-contractual expectation which an employee will have, that this is not limited simply to an expectation that a requested reference will assist him in obtaining a new job, which was the example by Lord Nicholls in paragraph 36. It is the combined experience of this Tribunal that that is not the sole occasion when an employee's expectation will arise. An employee will have a similar expectation of assistance, at any rate of non-discriminatory conduct on the part of an employer, whenever there may be contact or communication with a subsequent employer or would-be employer, in relation to the performance or conduct of the ex-employee; and there is in our judgment no qualitative difference between the act of an employer in spoiling a subsequent employment on an unsolicited basis and the act of an employer in giving or refusing a formal reference. Of course, on the facts, as we have indicated, victimisation may not arise or proximity may not arise, as we shall discuss in a moment, but we see no distinction by way of applying the facts of this case to the examples given by Lord Nicholls between his analysis of incidents of an employment relationship and what occurred here.
35. Secondly, we are entirely satisfied that Lord Nicholls was looking at incidents of an employment relationship, as he describes them in paragraphs 36, 37, 44 and not necessarily the continuation of the employment relationship as a whole. When he said in paragraph 44 'the obligation not to discriminate applies to all the incidents of the employment relationship, whenever precisely they arise' he was referring to the kind of incidents of such a relationship such as the discriminatory non-provision of a reference, or, as here, if proved, possibly discriminatory statements made about an ex-employee in an employment context, and certainly those with a view to spoiling the subsequent employment of the employee, if such be found; both could be incidents of an employment relationship and they could, as indeed Lord Nicholls himself foresees in paragraphs 41 and 42, arise years after the employment relationship itself had ended. In those circumstances, we are satisfied that Lord Nicholls stands on the side of the line together with Lord Rodger and Lord Hobhouse, and that the facts alleged here, if proved, would amount to discriminatory conduct of an incident of employment relationship.
36. On the other hand, a much simpler test is set out, in our judgment, and one which the Employment Tribunal may well find it far easier to adopt, applying the commonsense of an industrial jury, namely the tests set out by Lord Hobhouse and Lord Rodger: whether there is a substantial connection with the employment relationship, or a sufficiently close connection with the employment, or whether the employer was here discriminating qua employer, or whether the facts alleged are sufficiently proximate to, or not remote from, the employment of the employment relationship. We are satisfied that that is a matter which this Employment Tribunal can resolve and might resolve against the Applicant; that is a matter for the Employment Tribunal when it fully hears the facts. But it appears to us that if it be proved that an employer deliberately set out to spoil a subsequent employment, however long after its own employment had ceased, or so acted, knowing of the likely consequences of its actions, it would be acting qua former employer, to quote Lord Rodgers' words. That is not to say, of course, that it would necessarily be victimising, because it may have other motivations for its act, but that if such were proved, there would be, in our judgment, sufficient proximity and a sufficiently close connection with the employment."
"28. It is, however, clear in our judgment that the House of Lords in Rhys-Harper intended to lay down boundaries to the jurisdiction to entertain complaints of post-termination discrimination so as to protect ex employers against a massive new exposure to claims which would or might arise if ex-employees had "open house" to make such claims. The nature and extent of those boundaries were considered in detail in the Employment Appeal Tribunal in Metropolitan Police Service v Shoebridge [2004] ICR 1690; in giving the judgment of the Employment Appeal Tribunal in that case, the President, Burton J, analysed the differing formulations of those boundaries to be found in the speeches of the House of Lords in Rhys-Harper (which, it must be remembered, were addressing direct discrimination by subjecting the ex-employee to detriment and not by failure to make adjustments). We gratefully accept and adopt the conclusions in the EAT's judgment, at paragraphs 25 and 34-36, that the majority of their Lordships did not set the boundaries at the point at which the employment relationship ceased to continue but the point at which the subject matter of the complaint against the ex-employer was no longer an incident of the employment relationship and a benefit which the ex-employee was entitled to expect would be provided post-employment-which is the same boundary as that set by Lord Hobhouse and Lord Rodger i.e. whether the facts alleged are sufficiently proximate to and are not too remote from the employment relationship-and that on which side of the boundaries the facts fall in any individual case is a matter for the Employment Tribunal to resolve on the evidence.
29. But how should those principles be applied in this case? Miss Newton submits that the Employment Tribunal alone can determine on the facts whether the request made on Mr Baynton's behalf by his union on 17 January 2004 was sufficiently proximate; Miss Seymour submits that the relevant facts are not in dispute and point unerringly to the correctness of the Tribunal's decision. There was no contractual right in Mr Baynton to any further reconsideration of the dismissal; he had exhausted all appeal procedures. There was no evidence or allegation of any custom or practice in South West Trains whereby such reconsideration could be expected of them by the union or by Mr Baynton. In contrast to a reference case, a post-termination appeal case or a case such as Shoebridge-in which the employee could expect a proper or accurate assessment of the issue raised-no such expectation could exist at all in this case; and therefore there could not be sufficient proximity to give the Tribunal jurisdiction.
33. For these reasons we are persuaded that the decision in the Employment Tribunal on this issue was correct and that there was no jurisdiction in the Employment Tribunal to hear a complaint by Mr Baynton based solely on the rejection of his request to South West Trains for a rescission of the dismissal."