United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	DR C HUSBANDS (Representative) The Claimant's Partner
For the Respondent	MS I SIMLER QC Instructed by: Messrs Denton Wilde Sapte LLP Solicitors One Fleet Place London Central EC4M 7WS


 


SUMMARY

Race Discrimination: Victimisation / Burden of proof

Unfair Dismissal: Reasonableness of dismissal

Victimisation – the reason why question Art 8 ECHR confidentiality and business e-mails. reverse burden of proof under s54A RRA.


 


HIS HONOUR JUDGE PETER CLARK

1. This is an appeal by Professor Fosh, the Claimant, against the judgment of an Employment Tribunal sitting at Cardiff under the Chairmanship of Mr G H Prichard, following a 15 day hearing, dismissing her claims of unfair dismissal and victimisation contrary to s2 Race Relations Act 1976 (RRA) brought against her former employer, the Respondent, Cardiff University. That judgment, with reasons, was promulgated on 20 July 2007.

Background

2. The Claimant took up her appointment with the Respondent in September 1995. She specialized in Labour Relations and HR Management within the Cardiff Business School (CARBS), with a particular interest in the Chinese economy. The Head of CARBS was Professor Mansfield.
3. In 2003 a Dr Chen, who had been studying for a PhD under the Claimant's supervision commenced proceedings against the University complaining of race discrimination. Initially, his claim, presented to the Employment Tribunal on 17 March 2003, was backed by the Commission for Racial Equality (CRE). The Commission later withdrew their support and the Claimant took on his representation, appearing on his behalf at directions hearings held on 30 June and 1 September. A full hearing of his complaint was listed for 12 - 19 January 2004.
4. During November and December the Claimant exchanged correspondence with Professor Mansfield, asking for time off to attend Dr Chen's tribunal as a witness. That request was granted in part.
5. On 19 December the Respondent's director of Personnel, Mr McDougall, wrote to and emailed the Claimant, stating that as well as being a witness for Dr Chen in the forthcoming hearing she was also representing him. That was said to give rise to a serious conflict of interest; further, Mr McDougall contended that the Claimant had disclosed confidential information to Dr Chen, acquired in her role as a senior member of the University, privy to 'reserved business' subject to the usual conventions of confidentiality. She was asked to cease representing Dr Chen in his proceedings.
6. She declined to cease acting for Dr Chen and continued to do so, instructing solicitors to write to the University invoking the victimisation provisions of the RRA and the Public Interest Disclosure provisions of the Employment Rights Act 1996.
7. The Employment Tribunal found that the Respondent had no objection to the Claimant appearing as a witness for Dr Chen; it was her representation of him and what was perceived to be the conflict of interest which this engendered.
8. Following the Chen hearing (in which he was unsuccessful) the Claimant was suspended on full pay by Mr McDougall by letter dated 21 January 2004. Thereafter the Respondent, with the authority of the Vice-Chancellor, Dr Grant, conducted a search of the Claimant's e-mail account, leading to further disciplinary charges against her. She was also accused of misconduct in the matter of an application by Dr Chen for a Leverhulme Fellowship at CARBS. It appears, on her account, that she involved herself directly in the preparation of his application using research co-authored by herself, Dr Chen and a Dr Zhao.
9. The Claimant's e-mail correspondence revealed strong and at times abusive criticisms of Professor Mansfield to former students. Further, the tone of her e-mails to students appeared to the Respondent to be unprofessional.
10. In due course three disciplinary charges were formulated against the Claimant by the Respondent; the conflict of interest complaint concerning her representation of Dr Chen; her involvement in Dr Chen's application for the Leverhulme Fellowship and thirdly her provision of accommodation to students in her home without declaring that fact to the University, abusive criticism of Professor Mansfield and inappropriate correspondence by e-mail with students.
11. The disciplinary hearing took place before an external panel chaired by HHJ Prosser QC, resulting in a recommendation that the Claimant be dismissed. That decision was reviewed by a barrister, Mr Philip Rees (not Queens Counsel, as ET record at paragraph 58 of the reasons). He upheld the panel's decision. Dr Grant accepted the recommendation and the Claimant was dismissed on 26 April 2005.

ET Decision

12. The ET reached the following principal conclusions on the claims before it.

Unfair Dismissal

13. The Employment Tribunal found that dismissal on grounds of the Claimant's conduct was procedurally fair. Although the Claimant was suspended for a period of 15 months that did not, in the particular circumstances of this case, render it unfair (reasons, paragraph 56). It made no criticism of the disciplinary process conducted by Judge Prosser's panel and Mr Rees. It rejected a point taken on behalf of the Claimant that Mr Rees was hearing an appeal from a panel chaired by a more senior member of the legal profession. The Employment Tribunal accepted the principle of independence within the profession. It is implicit in their reasoning that they found that the sanction of dismissal fell within the range of reasonable responses open to the Respondent.

Victimisation

14. The Employment Tribunal rejected the Respondent's contention that the Claimant had not acted in good faith within the meaning of s2(2) RRA.
15. As to her complaint of victimisation under s2(1) the Employment Tribunal focussed on the Respondent's initial reason for suspending the Claimant, namely her representation of Dr Chen in his race discrimination proceedings in an Employment Tribunal against the University. Whilst accepting, again contrary to the Respondent's case, that representation of a Claimant in race discrimination proceedings could amount to a 'protected act', the reason for the Respondent's treatment of the Claimant, suspending and ultimately dismissing her, was not her doing of a protected act but her placing herself in a position of conflict of interest between the duty owed to her employer under her contract of employment and the obligation which she assumed to represent the interests of Dr Chen in his litigation against her employer. The Employment Tribunal did not find her position to be analogous to, for example, a trade union representative (whose position is in certain circumstances protected by s152 TULR (C)A 1992). They said at paragraph 82:

"82. The conflict of interest was at its most obvious when the claimant herself personally conducted the case. That is because it was quite clear at the hearing of the Chen case that she was more than just a representative. She was someone who had private and personal knowledge of the respondent's selection procedures, indeed she had privilege knowledge as a senior employee, which she was able to use to Dr Chen's advantage in the proceedings. She was privy to "reserved business". Hypothetically, a barrister or solicitor would have declined to act, on grounds of professional embarrassment, in circumstances where they were thought to have a privileged and relevant knowledge of the procedures of the opposing party. To our minds the conflict of interest here was glaringly obvious, and unacceptable."

The Appeal

16. Having read the Claimant's grounds of appeal and skeleton argument prepared by Dr Husbands, her partner and a fellow academic who has represented her throughout these proceedings, we noted that a full written version of the Claimant's argument in the appeal was in the course of preparation. We invited Dr Husbands to provide a copy of that document to the division hearing this appeal and to Ms Simler QC, who appeared on behalf of the Respondent, in advance of the hearing. He was good enough to oblige. It is an impressive piece of work, extending to 111 typed pages. The question for us, however, remains; does the appeal identify any errors of law in the Employment Tribunal's approach to the issues raised before it?
17. In answering that question we shall deal in this judgment with the issues of law which seem to us to arise and which were ventilated in the oral hearing. They may conveniently be considered under the following heads:

(1) The causation question in the victimisation claim.

(2) The reverse Burden of Proof under s54A RRA.

(3) The application of Article 8 of the European Court of Human Rights (ECHR).

(4) Delay in the disciplinary process.

(5) Perversity.

Causation

18. S2(1) RRA provides, so far as is material,

" A person … discriminates against another person … if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has -

…

(b) given evidence or information in connection with proceedings brought by any person against the discriminator … under this Act; or

(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person …"

19. The Employment Tribunal proceeded on the basis that by representing Dr Chen in proceedings under the Act the Claimant had done a protected act under s2(1)(c). Dr Husbands points out and Ms Simler accepts that in their reasons the Employment Tribunal make no mention of a further protected act relied on by the Claimant, namely providing information to the Welsh CRE in connection with Dr Chen's claim.
20. However the critical issue is whether the Respondent treated the Claimant in the manner complained of by reason that she had done the protected acts relied on or for some other reason.
21. The 'causation issue' in a complaint of victimisation has been considered by the House of Lords in Khan v Chief Constable of West Yorkshire Police (2001) 4 AER 834, and more recently in St. Helens Metropolitan Borough Council v Derbyshire (2007) IRLR 540.
22. We reject Dr Husbands' submission that the Employment Tribunal wrongly held that the Claimant's act of representing Dr Chen was not a protected act. They proceeded on the basis that it was. Nor do we find it helpful to consider the purely factual distinction that exists between the present case and that of Aziz v Trinity Street Taxis Ltd (1988) IRLR 204 (CA), to which the Employment Tribunal referred at paragraphs 64-69 of their reasons. The question is whether the Employment Tribunal correctly applied the principles developed in the cases in deciding the 'reason why' question (Lord Nicholls cautioned against the use of the legal concept of 'causation' in this context in Khan, paragraph 29).
23. We accept Ms Simler's submission that the Employment Tribunal did correctly apply the law. The findings of fact at paragraph 82 of the reasons are clear and unequivocal. It was the perceived conflict of interest and breach of confidentiality which motivated the Respondent, consciously or subconsciously, to treat the Claimant as it did. Not the protected act of representing Dr Chen.
24. As to the lacuna in the Employment Tribunal's reasons concerning information provided by the Claimant to the Welsh CRE, we also accept Ms Simler's submission that it is plain from the Employment Tribunal's findings that the reason for the Respondent's treatment of the Claimant was not a proscribed reason under s2. Accordingly it is unnecessary to refer the matter back to the Employment Tribunal for further reasons on this aspect of the case.
25. Finally, we should deal with Dr Husbands' submission that s72(3) RRA applies in this case. In our judgment it does not. Section 72(3) declares void any term of a contract which purports to exclude or limit any provision of the Act. The implied term of mutual trust and confidence present in this and every contract of employment, to which the Employment Tribunal referred (see reasons paragraph 79) does not purport to exclude the provisions of s2 RRA. The question under s2 is why did the Respondent treat the Claimant as it did? If the answer is, because she did a protected act, then the statutory tort of victimisation is made out. If not, as the Employment Tribunal, we are satisfied, permissibly found, then the claim fails.

Burden of Proof

26. The Employment Tribunal was persuaded, as a matter of construction, that the provisions of s54A RRA did not apply to a claim of victimisation under s2. That view has since been endorsed by the Employment Appeal Tribunal in Oyarce v Cheshire County Council (UKEAT/0557/06/DA). We are aware that the decision in that case is to be considered by the Court of Appeal. However, we did not accede to Dr Husbands' suggestion that this appeal be stayed, pending the outcome of Ms Oyarce's appeal.
27. The reason is that at paragraph 87, the Employment Tribunal clearly found that even if the reverse Burden of Proof applied, they were satisfied by the Respondent's non-discriminatory explanation discussed earlier. That finding, in the light of all the evidence which they heard and the facts found, is sufficient to dispose of any argument based on the reverse Burden of Proof in line with the approach sanctioned by the Court of Appeal in Madarassy v Nomura International plc (2007) IRLR 246.

Article 8

28. It was and is the Claimant's case that the Respondent is an emanation of the state. The Employment Tribunal was 'not convinced' that this is the case. Ms Simler was not prepared to concede the point. We shall assume, without deciding the point, that the Claimant's submission is correct.
29. Article 8 ECHR provides:

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country … or for the protection of the rights and freedoms of others."

30. Dr Husbands has referred us to the jurisprudence of the European Court of Human Rights, most recently the case of Copland v UK (Appn. No. 62627/00) 3 July 2007. That case involved the monitoring of the applicant's e-mails, telephone calls and internet usage during her employment by Carmarthenshire College at the instigation of the Deputy-Principal of the College. The Court held, it being admitted that the college was an emanation of the State, that Article 8(1) was engaged and that the interference was not in accordance with domestic law.
31. Whilst apparently similar to the present case, Ms Simler points to two important distinctions. First, the search of the Claimant's e-mails was authorized in accordance with the Respondent's own internal rules; secondly, the present case post-dates the passing of the Regulation of Investigating Powers Act 2000 (RIPA) and Regulations made thereunder. That legislation was not in force at the time of the matters raised in Ms Copland's complaint.
32. The Employment Tribunal took those matters into account when deciding that the derogations in Article 8.2 applied (reasons paragraphs 47-49).
33. Thus, for the purposes of determining the complaint of 'ordinary' unfair dismissal, we apply the guidance of Mummery LJ in X v Y (2004) IRLR 625, paragraph 63. Since the Employment Tribunal was entitled to conclude that there was no violation of Article 8 the Claimant's convention rights do not bear on the fairness of her dismissal under s98(4).

Delay

34. The question before the Employment Tribunal was whether the Claimant's dismissal was unfair applying s98(4) ERA. The Claimant's case has never been advanced under s98A. We can see no grounds in law for interfering with the Employment Tribunal's reasoning at paragraph 56.

Perversity

35. Much of Dr Husbands' lengthy written submission is taken up with challenging the Employment Tribunal's findings of fact adverse to the Claimant. Although recognising the high hurdle faced by Appellants seeking to argue perversity Dr Husbands has not entirely put into effect his own self-denying ordinance. We have considered this part of the appeal but find ourselves unable to accept that perversity is made out.

Generally

36. We do not accept that this Employment Tribunal's reasons fail the Meek test. They adequately explain why the parties won or lost, with the exception of the Welsh CRE information point with which we have earlier dealt. Further, in our judgment the Employment Tribunal reached a permissible conclusion on the two claims before them based on their application of the law to the facts as found, which findings were supported by evidence.
37. In short, despite the admirable industry and research of Dr Husbands he has been unable to persuade us that any error of law in the Employment Tribunal's reasoning has been made out. Consequently this appeal fails and is dismissed.