United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR KOLA SONAIKE (of Counsel) Instructed by: Northumberland County Council Legal Services County Hall Morpeth Northumberland NE61 2EF
For the Respondent	MS JANE CALLAN (of Counsel) Instructed by: Messrs Thompsons Solicitors The St Nicholas Building St Nicholas Street Newcastle upon Tyne NE1 1TH


 


SUMMARY

PRACTICE AND PROCEDURE: Perversity

Perversity appeal against Employment Tribunal findings of direct race discrimination and victimisation by the Claimant's line manager for whose acts the employer (Respondent) was responsible.

High threshold not crossed. Appeal dismissed.


 


HIS HONOUR JUDGE PETER CLARK

1. This case has been proceeding in the Newcastle-upon-Tyne Employment Tribunal. The parties are Mrs Rosene Railton, Claimant and Northumberland County Council, Respondent. By a Judgment with reasons extending to 55 pages promulgated on 19 December 2008 (the liability judgment) an Employment Tribunal chaired by Employment Judge Rogerson upheld the Claimant's claims of direct race discrimination and victimisation contrary to the Race Relations Act 1976 (RRA) in part following a 13 day hearing with 3 further days of deliberations in private. Remedy was adjourned and heard on 18 February 2009. Following a day's deliberations on 24 February the same Employment Tribunal promulgated their remedy judgment on 23 March 2009, awarding the Claimant total compensation in the sum of £111,668.79.
2. Against the liability judgment the Respondent appealed to this Tribunal, by a Notice lodged on 29 January 2009 (EAT/0095/09/ZT). The detailed grounds of appeal, settled by Mr Sonaike, who, like Ms Callan, appeared below, ran to 25 pages. Those grounds were considered on the paper sift by HHJ McMullen QC, who permitted what may be termed the substantive grounds to proceed to a full hearing. That is the hearing now before us. Separately, he applied a direction under Employment Appeal Tribunal Rule 3(7) to those grounds which challenged the Employment Tribunal's finding that the claims were not time-barred. In relation to that direction the Respondent exercised its right to an oral hearing under Rule 3(10). That application came before me on 8 May 2009 when I dismissed it for the reasons given in a judgment delivered on that day. We are therefore not concerned with the issue of limitation.
3. Separately the Respondent appealed the Remedy Judgment by a Notice lodged on 1 May 2009. By order dated 29 May Judge McMullen directed that that appeal be stayed until after the liability appeal was heard. I shall give separate directions in relation to that appeal on paper.

History

4. The Claimant is of Indian origin. She worked continuously in local government service from 1983 until commencing employment with the Respondent as a Partnership Manager (PM) on 14 November 2005. She actually started work, following a period of pre-arranged leave, on 13 January 2006. She was one of 10 candidates interviewed in September 2005 for two PM vacancies by a panel which included her eventual line manager, Barbara Paterson (BP). The other successful candidate, also appointed in November 2005, was Claire McKenna (CM), a white woman. Both were subject to a probationary period of six months.
5. The purpose of the 8 PMs was to deliver cleaning, catering and allied services to schools within the Council's region. They were split into two teams of four PMs, one managed by BP, the other by Rudy Imhoof. Both the Claimant and CM were allocated to BP's team.
6. It was the Respondent's case below that BP had a forthright, no nonsense style of management, but she treated those she managed in the same way. Inevitably, particularly in relation to the Claimant's complaints of direct race discrimination, comparisons were made between her treatment of the Claimant and CM. At review meetings held on 27 April 2006 BP was critical of both the Claimant and CM. Both had their probationary periods extended. On 12 June CM gave notice of termination and left the Respondent's employment on 7 July. On 21 July the Claimant raised a grievance against BP, complaining that she had been bullied and harassed and that such treatment could be racially motivated.
7. On 28 July that grievance was determined. In two respects it was upheld. BP placed the Claimant on the Respondent's capability procedure, something with which both the Claimant and CM had been threatened on 23 May. On 1 August the Claimant invoked stage 2 of the grievance procedure. Later that month BP gave informal notice of resignation, leaving on 20 October. Meanwhile, on 14 August the Claimant commenced a period of sick leave, never to return to work before her ill-health retirement, aged 43, in November 2008. The capability proceedings against the Claimant were discontinued following termination of BP's employment. She then invoked stage 3 of the grievance procedure and presented her claim Form ET1 to the Employment Tribunal on 5 March 2007.

The Liability decision

8. At paragraph 1 of their reasons the Employment Tribunal identify eight separate allegations of direct discrimination made by the Claimant against BP (for whose acts and omissions the Respondent accepted responsibility). For that purpose the Employment Tribunal identified CM, a white fellow probationer, as an actual comparator where appropriate, otherwise a hypothetical comparator. At paragraph 2 they identified eight alleged acts of victimisation.
9. By their judgment they upheld six acts of direct discrimination by BP and three acts of victimisation, one of which, a vague reference given by Rudy Imhoof on the Claimant on 5 July 2006, is not the subject of appeal. All acts of direct discrimination and victimisation upheld against BP are challenged in this appeal.

The Law

10. There is no challenge to the Employment Tribunal's self-direction as to the law (reasons para. 7). The Employment Tribunal directed themselves as to the effect of the reverse burden of proof under s54A RRA, by reference to Igen v Wong [2005] ICR 931 (CA), in relation to the allegations of direct discrimination, noting that s54A did not apply to the victimisation claims (Oyarce v Cheshire County Council [2008] ICR 1179 (CA)). Of particular relevance to the present appeal, we think, was the Employment Tribunal's self-direction that in order for the Claimant to raise a prima facie case of direct discrimination at stage 1 of the Igen test there must be something that raises a suggestion that the prohibited factor, here race, may have been in play. There must be something more than a mere difference in treatment and in race to pass the first stage hurdle; see Madarassy v Nomura International Plc [2007] ICR 867 para. 56. per Mummery LJ.

General observations

11. The question in this appeal is whether or not the Employment Tribunal properly applied the law to the facts as found, where necessary drawing permissible inferences from the primary facts, in arriving at their conclusions on the matters alleged. In doing so they were entitled to look at the overall picture, see Qureshi v Victoria University of Manchester [2001] ICR 863 (note: approved in Anya v University of Oxford [2001] ICR 847 (CA), para. 9, per Sedley LJ).
12. Mr Sonaike places at the forefront of his submissions a complaint that the Employment Judge adopted a haphazard approach in deciding that some allegations of direct discrimination were made out and others not; that there is no proper explanation by the Employment Tribunal as to why they found that the Claimant had been less favourably treated than her comparator in some cases but not others. We disagree. Looking at those instances where no less favourable treatment, or no detriment or no less favourable treatment on grounds of race were found at stage 1 (reasons paragraph 8.2) it is plain to us why those claims were rejected when read with the relevant findings of primary fact at paragraph 4.
13. The question, to which we shall return in detail shortly, is whether the six allegations upheld at paragraph 8.3 and each of them are sustainable as a matter of law. We shall then deal with the two allegations of victimisation upheld against BP.
14. In considering that question we must necessarily engage with the principle of legal perversity, invoked by Mr Sonaike throughout his submissions. It is common ground that the relevant principles are helpfully collected in the judgment of Mummery LJ in Yeboah v Crofton [2002] IRLR 634, paragraphs 92-96. In particular, Mr Sonaike relies on the observation that the perversity ground will be made out where an Employment Tribunal misunderstands the evidence or makes a crucial finding of fact unsupported by evidence (para. 95). That said, we must also bear in mind the need for an appellant to make out an overwhelming case that the Employment Tribunal reached a conclusion which no reasonable tribunal on a proper appreciation of the evidence and the law would have reached (general perversity) (para. 93). We must be wary of appeals on fact dressed up as points of law, our jurisdiction being limited to correcting errors of law only.
15. Finally, Mr Sonaike prays in aid the observation of Peter Gibson LJ in Bahl v The Law Society [2004] IRLR 799, paragraph 126, that in that case it was important for the employment tribunal to explain why they found certain treatment of the claimant discriminatory in circumstances where (a) they had found non-discriminatory considerations present and (b) unconscious discrimination.
16. It is against that background that we turn to the individual findings now under appeal.

Direct discrimination

(1) Setting the Claimant up to fail

17. At paragraph 8.3.1 the Employment Tribunal concluded, based on their findings of fact at paragraphs 4.29-4.35 that the Claimant had been given an excessive workload covering for her "buddy" Wally Smith whilst he was off sick. They make a comparison with CM and the other PMs and concluded that none were expected to cover for the period of time involved. That was less favourable treatment of the Claimant and it was prima facie on the ground of race because BP had formed the view (first expressed at the review meeting on 27 April) that the Claimant did not 'fit in'. They inferred that this view was formed by BP subconsciously by reason of the Claimant's race. They also took into account BP's failure to follow the Respondent's policies for probationary employees and the code of practice. For these reasons the Employment Tribunal considered that a prima facie case had been made out; they looked to BP, who gave evidence below, for an explanation unconnected with the Claimant's race and rejected it. It therefore followed, applying the reverse burden of proof, that this complaint was made out.
18. In challenging that conclusion Mr Sonaike first submits that the Employment Tribunal chose the wrong comparator. The correct comparator, he argues, was a PM of a different race whose 'buddy' was on extended sick leave. He further contends that there was evidence before the Employment Tribunal from Dave Pears, PM, and Rudy Imhoof that Dave Pears and Wally Smith had to cover for their 'buddies' during sickness for two and four weeks respectively. He has taken us to the witness statement of Dave Pears, paragraphs 9 and 11 (Bundle p. 199) and note of his cross-examination (p. 254).
19. This submission exemplifies the danger of this Employment Appeal Tribunal embarking on an analysis of selected parts of the evidence placed before the Employment Tribunal. In response Ms Callan points to the fact that Dave Pears was never a probationer and thus not a precise comparator and further that, whilst Mr Sonaike relies on an offer of help by Dave Pears, Ms Callan points out (reasons para. 4.31) that BP did not instruct any of the Claimant's colleagues to help her out.
20. We do not propose to further trawl through the evidence. In our judgment the Employment Tribunal were entitled to conclude (a) that the Claimant had been less favourably treated than the (white) actual comparators (b) that there was 'something more'; the 'fitting in' perception and breach of procedures and that the explanation given by BP was not accepted. This complaint was therefore made out.

(2) BP instructing the Claimant to produce evidence of work done by the Claimant and without good reason failing to review it.

21. This finding is dealt with at paragraph 8.3.2. The question raised in this appeal is whether this was a complaint raised by the claimant in the proceedings; Chapman v Simon [1994] IRLR 124. Mr Sonaike submits that it was not and therefore the Employment Tribunal had no jurisdiction to make this finding of direct discrimination.
22. In Chapman v Simon the claimant put her case on less favourable treatment in three different ways, each of which was rejected by the Employment Tribunal. However the Employment Tribunal went on to find an act of discrimination wholly different from the three pleaded allegations. That was impermissible; see per Peter Gibson LJ, paragraph 45.
23. In the present case the Claimant raised in her Form ET1 a complaint that BP had criticised and humiliated her. No further particulars were provided or requested of that allegation. Ms Callan has taken us to paragraph 52 of the Claimant's witness statement (pp. 153-4) in which the Claimant cites an incident in June 2006 where she had collated certain information as requested by BP at a review meeting held on 23 May but BP did not wish to go through it with her. She contended that this was a further example of the humiliating treatment to which she was subjected. That matter was expressly put to BP in cross-examination (p. 272). It was expressly referred to in Ms Callan's closing submissions, p. 11, under the heading of the Claimant being set up to fail. Closing submissions were exchanged between counsel prior to their final oral addresses to the Employment Tribunal.
24. In these circumstances we are not persuaded that this was not a complaint before the Employment Tribunal. It was broadly covered in the Form ET1; in the evidence of the two protagonists and in closing. We therefore reject this ground of appeal.

(3) BP was rude and nasty to the Claimant

25. This conclusion by the Employment Tribunal is dealt with at paragraph 8.3.3. Mr Sonaike complains that in making this finding of direct discrimination the Employment Tribunal relied on a remark made by CM in the course of a statement given by CM during the Claimant's stage 1 grievance procedure; that BP seemed to treat the Claimant differently from CM. CM did not give evidence before the Employment Tribunal. We see no reason why the Employment Tribunal, which is not bound by strict rules of evidence, could not take that material into account. It is for the Employment Tribunal to decide what weight, if any, to attach to that material. It is not permissible for the Respondent here to sift through the evidence, as appears at paragraph 22 of the long grounds of appeal, in order to seek to show that the Employment Tribunal ought to have taken a different view of that comment. We accept that the Employment Tribunal found BP to have a strong management style which could be intolerant and one from which CM felt she had suffered (reasons para. 4.10). It probably, we think, led to CM's resignation. However, it was for the Employment Tribunal, focussed on the issue of less favourable treatment, to determine whether, in this particular respect, the Claimant was treated less favourably than CM. They were expressly alerted to the 'Zafar' point; that unreasonable treatment across the board does not necessarily amount to less favourable treatment; see Glasgow City Council v Zafar [1998] IRLR 36, by Mr Sonaike in his closing submissions (reasons, para. 5.2). We do not believe that they fell into that trap.
26. Finally, Mr Sonaike 'notes' (ground of appeal para. 75) that the Employment Tribunal made no finding as to what was actually said by BP under this head. However, we agree with Ms Callan that sufficient primary findings of fact were made on this issue at paragraphs 4.22-4.24.

(4) Refusal of time off

27. The relevant conclusions of the Employment Tribunal are at paragraph 8.3.4. Again, this is a part of the appeal in which we are satisfied that Mr Sonaike is seeking to persuade us to retry the facts. He referred us to paragraph 14 of Dave Pears' witness statement (p. 200) in which he said that he 'felt' that the Claimant and CM's requests for time off were dealt with differently to those of other PMs. This neatly illustrates the dangers against which this Employment Appeal Tribunal was urged to guard by Mummery LJ in Yeboah v Crofton. We are simply not prepared to take one paragraph out of one witness statement in a case which ran for 13 days in the Employment Tribunal and hold that the Claimant and CM were treated no differently in this respect. It also overlooks the material finding of fact by the Employment Tribunal. At paragraph 4.28 the Employment Tribunal set out in careful detail BP's questioning of the Claimant's application for a day's leave on 22 May 2006. The conclusion at paragraph 8.3.4 was that BP did not question CM about her leave requests in the same way; that was the material difference in treatment; the Claimant was less favourably treated than CM in this respect.

(5) Unfair complaints against the Claimant

28. One of the two complaints upheld in the Claimant's grievance on 28 July 2006 was that BP had lodged historical complaints against the Claimant which had not been raised with her at the time. The Employment Tribunal found (para. 8.3.5) that in this respect she was treated less favourably. We reject Mr Sonaike's submission that this treatment did not cause a detriment to the Claimant. It was an aspect raised with her by BP at her probation review on 27 April as a matter of criticism. Further, we reject the complaint that there was no evidence to support this finding. The finding was not that BP herself had lodged complaints against the Claimant, but that she lodged complaints made by others against the Claimant in the past but had not, contrary to her usual management style, raised them with the Claimant at the time.

(6) Claimant not fitting in

29. The comparison here (paragraph 8.3.6) was between BP finding that the Claimant did not 'fit in', but making no similar finding in respect of CM, about whom BP had concerns. Although there was no direct evidence that this view was race related the Employment Tribunal drew the inference that it was in distinction to CM. Both were asked whether they felt that they fitted in at their 27 April review meetings. Again Mr Sonaike has sought to trawl through the evidence in order to demonstrate that in the opinion of others the Claimant did not fit in and indeed the Claimant herself did not think she had done so, a reference to a passage in her review interview (p. 204). We reject that approach.

Victimisation

(1) BP placing the Claimant on the capability proceedings

30. The relevant protected act was the Claimant raising a grievance against BP on 21 June in relation to treatment which she said could have been racially motivated. The grievance was determined on 28 July and two complaints were upheld. BP's response, the Employment Tribunal found (para. 4.68) on being told that two complaints had been upheld was to screw up her face and say; 'if that's what you want we'll put her on capabilities'. The question for the Employment Tribunal was whether the sole reason for her reaction and action was that the grievance had been upheld in part, in which case it may be said that a comparator who had raised a grievance against her which did not include a complaint of racial motivation would have been similarly treated, in which case victimisation is not made out, or whether the fact that the grievance included a racial complaint was a significant factor in her placing the Claimant on capability proceedings, in which case an inference of victimisation could be drawn. The Employment Tribunal found (para. 8.5.2) that both the fact of the racial complaint and that the grievance was upheld in part contributed to BP's reaction.
31. We are not persuaded that that finding is undermined by the fact that both the Claimant and CM were warned that they faced capability proceedings at the review meeting held on 23 May. In the event CM left before she was placed on capability proceedings; it is pure speculation as to whether she would have been so treated had she remained in employment. Nor are we persuaded that the Employment Tribunal's conclusion on this aspect can be properly characterized as perverse.

(2) The Claimant's attitude

32. The Employment Tribunal found (para. 8.54) that following the outcome of the grievance on 28 July BP persisted in contending that the Claimant had an attitude problem in preparing her report for the capability proceedings. The Employment Tribunal concluded that this was not a balanced view but was retaliation for the part successful grievance brought against her by the Claimant. They found that a person who had not done the protected act would not have been treated in this unfavourable way.
33. Mr Sonaike points out that BP had questioned the Claimant's attitude before the grievance was raised; see 5 June report (p. 218). Therefore this treatment was not by reason of the post-dated protected act. The answer, we accept, from Ms Callan is that BP persisted in this criticism during the ongoing capability procedure, notwithstanding that on 10 July (para. 4.61) BP told the Claimant that she had noticed an improvement in her interaction with her peer group. The Employment Tribunal saw and heard the witnesses at length. They were entitled to conclude that BP persisted in this criticism during the capability proceedings, not because she genuinely believed it but in response to the partially successful grievance, itself constituting the protected act. That is unlawful victimisation.

Disposal

34. It follows, having considered the various ways in which this appeal is put, that we can discern no error of law in the Employment Tribunal's approach. Consequently this liability appeal fails and is dismissed.