United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS K NEWTON (of Counsel) Instructed by: Messrs TLT LLP Solicitors 1 Redcliff Street Bristol BS1 6TP
For the Respondent	MR S SAMMAKIA (The Respondent in Person)


 


SUMMARY

RACE DISCRIMINATION

Inferring discrimination

The Employment Tribunal were in error in finding an employer guilty of racial harassment by employees when the Claimant had specifically not claimed against the employees and one of the two acts complained of was not the subject of a written grievance and not part of a series of continuing acts. The other act was unproved.


 


HIS HONOUR JUDGE BIRTLES

Introduction

1. This is an appeal from an Employment Tribunal sitting at Nottingham in November 2008. The reserved judgment was sent to the parties on 16 February 2009. By a majority, the Employment Tribunal found that the Respondent had harassed the Claimant contrary to section 3A of the Race Relations Act 1976. The Respondent below, UPS Ltd, appeals against that decision. There is no cross-appeal. Today the Appellant has been represented by Ms Katherine Newton of Counsel and the Respondent, Mr Sam Sammakia, has appeared in person.

History of the Case

2. Mr Sammakia brought a claim for race and sex discrimination in the Employment Tribunal. The allegations of race discrimination and harassment are set out in paragraph 5 of the judgment. I list them as follows:

"(1) That the Claimant was turned down for every job he applied for.

(2) Constant harassment and bullying from management and staff.

(3) The Team Captain role was removed in February 2006.

(4) Further bullying and harassment upon return from sick leave in or about September 2006.

(5) Blocked application for DIAD training in July 2006.

(6) Unfair verbal warning on 20 September 2006.

(7) Suspension on full pay on 21 September 2006.

(8) A further unfair verbal warning given on 9 January 2007.

(9) Demotion from Import Broker to Export Broker on 9 January 2007.

(10) The erasure of his computer identification number between September 2006 and January 2007."

The only allegations found proved by the Tribunal were numbers (2) and (4).

3. The only other preliminary matter I need to refer to is the fact that there were case management directions given, which are referred to in paragraph 1 of the judgment. The proceedings were initially issued against UPS Ltd, Mr Sammakia's employer, and also against a Mr Mays and a Mr Macefield, who were managers.
4. On 19 October 2007, at the case management discussion, Mr Sammakia withdrew his claims against Mr Mays and Mr Macefield and the case proceeded thereafter only against UPS Ltd.

The Material Facts

5. The Employment Tribunal's findings of fact are to be found in paragraphs 7.1 to 7.30 of the judgment. In light of the fact that we are concerned only in this appeal with the allegations of racial harassment, we will confine our summary of facts to these matters:

"7.1 The Claimant was born in Lebanon. When he was asked what he considered his nationality was he stated that he wished to be thought of as an Englishman but accepted that he was Lebanese and he considered that the reason why he had been subjected to discrimination and harassment was that he was Lebanese. …

7.2 The Claimant commenced work for the Respondent on 6 September 1999. The Respondent is an international parcel and goods delivery service. The Claimant commenced work in the brokerage department of the Respondent. Brokerage involves dealing with Customs and other legal formalities relating to importing and exporting goods. The Claimant commenced work as a Customer Contact Clerk. As soon as he started work the Claimant tried to better himself and his position within the Respondent. In or about 2000 he applied to become a trainer but was unsuccessful. …

7.3 In 2001 the Claimant was promoted to an Import Broker Grade 1. He was promoted to Import Broker Grade 2 in 2002. …

7.4 On 26 February 2002 the Claimant filed a grievance alleging he had been subjected to what he termed bullying from 'certain individuals'. He asserted that this had been discussed with members of management previously…. As a result of this letter the Claimant had a meeting with members of management on 28 February 2002. ... In short, the Claimant asked for assistance with dealing with the bullying but stated that he did not want management to intervene at that time."

6. In 2005, the Claimant was appointed to the position of Team Captain. The Tribunal found:

"7.5 …The position of Team Captain is not a promotion. It is a development position into which employees wishing to be promoted to Team Leader are placed to give them experience of team leadership.

7.6

Shortly after becoming Team Captain, a grievance was filed against the Claimant from his co-workers. There was a grievance hearing on 11 January 2006. …"

7. There was a further grievance meeting on 24 January with the whole of the team and it was agreed that further support would be given to the Claimant.
8. There was an incident in January 2006 when there was a complaint by an employee called Rachel Sutton about the Claimant. The Tribunal found that after these incidents the Claimant's performance started to deteriorate and the Respondent concluded that he was under considerable stress.
9. In September 2006 the Claimant received a verbal warning in respect of mistakes he had made. On 21 September 2006 there was an incident involving the Claimant and another employee, Sharon Hibbert. The Claimant was suspended. On 26 September he went absent on sick leave and remained so until his return to work in January 2007. During his absence on sick leave the Claimant filed a grievance, dated 14 October 2006. The grievance is at EAT bundle pages 124-133. The covering letter states this:

"Dear Mr Macefield,

Please find attached herewith ten pages of grievances against the management of UPS for Discrimination, Harassment, Bullying and causing me to suffer work related stress and recurring work related stress." (EAT bundle page 124.)

10. At EAT bundle page 125, the first page of the grievance, is a summary. It says this:

"I would like to raise grievances against the management of UPS on account of either conducting or encouraging the following behaviour.

Unwanted contact that violated my dignity, constantly intimidated, degraded and humiliated me.

I suffered all of the above treatment from both the management and staff of UPS for the last seven years. The reasons mentioned hereunder stopped me on many occasions to raise grievances before:

The fear from the might of the managers of such a majestic company.

Promising me promotions into management.

The fear of more bullying.

Please note that although the employees are mentioned here, these grievances are solely against the management of UPS Ltd which consists of Managers, Supervisors, Team Leaders and Team Captains."

11. There are detailed allegations at EAT bundle pages 127-129 as examples of management permitting harassment and bullying. Each page of the grievance of 14 October 2006 has at the bottom a rubric which says:

"Grievances against the management of UPS Ltd."

12. On 19 October 2006, the Respondent acknowledged the Claimant's grievance and stated that a grievance hearing would be organised. On 13 November 2006 the Claimant attended a meeting with Ms Hampson and Ms Susie Herbert, the Brokerage Supervisor. The Claimant said he was fit to return to work, but he remained upset and broke down in tears at the end of the meeting. He remained on sick leave.
13. On 21 November 2006 the Claimant posted a further grievance comprising eight closely-typed pages. The grievance is at EAT bundle pages 135-143. The covering letter at EAT bundle page 135 says this:

"Dear Mr Macefield,

Please find attached herewith eight pages of the completion of my grievances dated the 14.10.06 against the management of UPS for Discrimination, Harassment, Bullying and causing me to suffer work related stress and recurring work related stress."

14. The first page of the document is at EAT bundle page 136. In the summary it says:

"Please note that although employees are mentioned here, these grievances are solely against the management of UPS Ltd which consists of Managers, Supervisors, Team Leaders and Team Captains."

15. There are allegations of unfair and malicious treatment in the grievance letter at EAT bundle pages 141-142. Again, each page at the bottom has the rubric:

"Grievances against the management of UPS Ltd."

It is said to be supplemental to the main grievance dated 14 October 2006.

16. On 27 December 2006 Mr Macefield, the Division Manager, wrote to the Claimant apologising for the delay in responding to the grievances, but excusing the delay by reason of having to make a full investigation. On 3 January 2007, the Claimant attended the grievance hearing with Mr Macefield and the Tribunal was shown a copy of the notes of that meeting. The relevant passages in the Tribunal's judgment of findings of fact are at paragraphs 7.20(b)(c).

"7.20

(b) There was a discussion regarding name calling. The Claimant's assertions were read and countered by the notes of interviews from his co-workers stating they could not remember any such comments. The Respondent concluded that 'it is very difficult to support your version or comment". It is important to note that Mr Broadhurst admitted under examination that he had heard the Claimant called 'ass jockey' by Lee Johnson while in the works break area. In the notes of an investigatory meeting with Mr Johnson, dated 16 November 2006 he did not remember hearing any of the comments or any name calling. Mr Broadhurst did not think it was malicious and thought that someone like the Claimant might accept the comment as a joke. Mr Broadhurst did not take the matter any further.

(c) There was a discussion regarding the Claimant being called a 'bomber' following news reports of a bombing incident in Lebanon. The Respondent noted that the alleged maker of the statement, Dean Vandome, stated that he had not made the statement."

7.23 On 9 January 2007 Mr Macefield wrote to the Claimant with his findings from the grievance hearing. Mr Macefield concluded there was nothing to uphold the assertion that there was a plot to dismiss the Claimant. … In relation to the allegations of bullying he stated 'it is my conclusion that overall your allegations of bullying or management collusion is not substantiated'. This conclusion [the Tribunal said] appears to be based on the fact that interviews with other members of staff indicated that they did not recall the matters alleged by the Claimant or that it was denied that they had occurred.

7.24 On 10 January 2007 the Claimant appealed the result of the grievance hearing. …

7.26 The Claimant met with Mr Roger Mays, Direct Labour Manager, on 2 March 2007 for his appeal… Mr Mays wrote to the Claimant 0n 23 March. He stated that as a result of the Claimant's suggestion prevention of bullying would be included in the induction training and that it would also be included in managerial training.

7.27 In June 2007 the Claimant brought to the attention of Mr Pryce [one of his Line Managers] that there was some offensive graffiti relating to him on a nearby bus shelter. The words used were 'for anal sex see Sam S'. In giving his evidence Mr Pryce stated [to the Tribunal] that he thought it was 'a matter of paranoia'. The bus shelter was about 100 metres from the Respondent's premises and it crossed Mr Pryce's mind that it had come from the Respondent's workforce. Mr Pryce stated that this was the first time that he had become aware of any comments relating to anal sex and the Claimant. He also stated that he was aware that the Claimant wished to sort his own problems out and that carrying out an investigation within the workforce might be counter-productive. He also concluded that the Claimant was a person who was not capable of sorting out his problems alone. Mr Pryce called the airport authorities asking for the graffiti to be removed and this was accomplished.

7.28 On 22 June the Claimant emailed Mr Pryce stating that he had established the identity of the person who had made the graffiti and it 'was not done maliciously'. The Claimant stated that he would tell the person off in a friendly manner on the following Monday. He added that he did not think it was the same kind of 'malicious attack' that he had suffered in the past. The Claimant was at pains to show that this would not cause disharmony in his team and he apologised for wasting Mr Pryce's valuable time."

17. The Tribunal finally noted that it had received evidence from Rachel Sutton, who had been employed with the Appellant in a number of roles, including providing training. She was involved in the presentation of equal opportunities training and the Tribunal was shown copies of the slides used to accompany the training. A list of 42 persons who had received that training was provided. The Tribunal found that the programme did not provide training to the whole of the Respondent's Brokerage workforce. We will come back to that in a moment.

The Tribunal's Conclusions

18. Again, it is only necessary to set out the Tribunal's conclusions on the allegations of racial harassment.

"8.2 Constant harassment and bullying from management and staff.

The Tribunal finds it important to note that the Claimant had a somewhat idealistic view of his work colleagues and what was expected of him if he was to be considered British or, in his words, 'an Englishman'. The Tribunal is satisfied that the Claimant considered that to be accepted he should fight his own battles and be stoic about the abuse he was receiving. The Tribunal is satisfied that the Claimant did not want to give the impression that he was in any way incapable of withstanding the abuse for fear that it might reflect badly on him and thus affect his prospects of promotion."

19. Paragraph 8.2 goes on to stress the Claimant's desire to better himself within the Appellant's organisation.
20. The Tribunal then say this:

"8.2

The Tribunal finds that the Claimant was subjected to harassment from members of the Respondent's workforce. The Tribunal accepts the Claimant's evidence that he was subjected to assertions that he indulged in anal sex and that these assertions were based upon the premise that Lebanese people in general, and thus the Claimant, indulged in anal sex. The Tribunal is satisfied that the harassment was on the basis of the Claimant's race. It is noted that the Claimant made the Respondent aware of these assertions on a number of occasions and the Respondent acknowledges that it was made aware of these assertions. As early as February 2002, the Claimant brought the assertions to the Respondent's attention. The Tribunal has noted that on that occasion the Claimant asked for help in responding to the harassment rather than the intervention of management to prevent harassment. On that occasion the Respondent respected the Claimant's wishes and simply provided some guidance to him. On later occasions Mr Broadhurst admitted that he had heard Lee Johnson call the Claimant an ass jockey but took no action as he thought it was spoken in jest by a work colleague who was friendly with the Claimant.

The Tribunal has been particularly concerned about the graffiti discovered by the Claimant near the Respondent's premises. The Respondent's reaction appears to have been to suggest that the Claimant should not be paranoid. Again, the Claimant sought to fight his own battles and notified the Respondent that he knew who had caused the graffiti and that he would have a word with them directly. This was at a time when the Claimant was seeking a job as a Bench Account Executive. As a result the Respondent took no action other than to seek the removal of the graffiti.

…

8.4 Further bullying and harassment upon return from sick leave in or about September 2006.

The Tribunal repeats its comments in relation to allegation #2 above. The Tribunal is satisfied that the Claimant continued to be subjected to harassment from colleagues on his return from sick leave."

21. We pause to note that beyond the matters referred to in paragraph 8.2, there are no specific findings of fact by the Tribunal as to incidents of bullying or racial harassment. Of course, the matters we have mentioned in paragraph 8.2 occur in the conclusions and not in the findings of fact.
22. In paragraph 9, the Tribunal go on to consider whether or not the Appellant had established the statutory defence under section 32(3) of the Race Relations Act 1976. While its earlier findings had been unanimous, the Tribunal at this point split.

"9.1 The majority view of the Tribunal is that the Respondent was aware of the assertions from the Claimant that he was being racially harassed and in particular he was receiving abuse alleging he participated in anal sex because he was Lebanese. While it is acknowledged that the Claimant wanted to fight his own battles, it should have been clear to the Respondent that he was not being successful in this respect. Coupled with his tendency to overwork the Claimant's health was failing seriously and the Respondent should have recognised that the abuse he was receiving would be contributing to his stress. It has been accepted that Mr Broadhurst heard the Claimant being called an ass jockey. Regardless of the circumstances this should have been recognised as unacceptable abuse. The Respondent has accepted that it knew that the Claimant was complaining of harassment and bullying. Perhaps the most telling incident relates to the graffiti. The view of management appears to be that the Claimant should not be paranoid about it and move on. However it should have been clear that this graffiti probably originated from the Respondent's workforce and it was totally unacceptable. The Respondent took no remedial action. It is noted that the Claimant asked to be allowed to handle the matter himself but the fact that a person has not asked for help should not preclude intervention by a responsible employer. The Tribunal has further noted that while the Respondent had an equal opportunities training programme, it was not completed by all members of the brokerage workforce.

9.2 By a majority the Tribunal finds that the Respondent has not taken such steps as were reasonably practicable to prevents its employees from harassing the Claimant, or from doing, in the course of his employment acts of that description. Specifically the Respondent should have recognised that the Claimant was not able to manage the abuse he was receiving. The Tribunal accepts that direct intervention without the Claimant's consent might not have been possible but the Respondent should have provided the Claimant with greater support and counselling to see if procedures could be developed that would prevent the abuse without undermining the Claimant's desire to be fully integrated into the workforce. The Tribunal notes that the training programme on equal opportunities was not provided to the whole workforce and that this might have been a vehicle through which to explain to the workforce the need to prevent harassment and to explain the consequences in the event that one employee was found to be harassing another employee.

10 The minority view from Mr Chester was that the requests from the Claimant to be allowed to resolve his issues without intervention from the Respondent created an insurmountable difficulty for the Respondent. He was satisfied that the requests by the Claimant to be allowed to fight his own battles made it difficult to the point of being impossible for the Respondent to intervene further without creating a worse position for the Claimant. He was satisfied that the Respondent had done what it could within the consent of the Claimant to support him. He considered that this was sufficient to establish that the Respondent had made out the statutory defence."

The Law

23. The Tribunal set out a number of sections of the Race Relations Act. Some of them have no application to this appeal. The relevant sections, which are relevant, are section 3A, which says this:

"3A Harassment

(1) A person subjects another to harassment in any circumstances relevant for the purposes of any provision referred to in section 1(1B) where, on grounds of race or ethic or national origins, he engages in unwanted conduct which has the purpose or effect of -

(a) violating that other person's dignity, or

(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him.

(2) Conduct shall be regarded as having the effect specified in paragraph (a) or (b) of subsection (1) only if, having regard to all the circumstances, including in particular the perception of that other person, it should reasonably be considered as having that effect."

24. Section 32 says this:

"32 Liability of employers and principals

(1) Anything done by a person in the course of his employment shall be treated for the purposes of this Act (except as regards offences thereunder) as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval."

25. Subsection (2) is not relevant.

"(3) In proceedings brought under this Act against any person in respect of an act alleged to have been done by an employee of his it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing in the course of his employment acts of that description."

The Notice of Appeal

26. The Notice of Appeal appears at EAT bundle pages 20-25. It has been supplemented by Ms Newton's written and oral submissions. The Respondent's answer appears at EAT bundle pages 26-27. Mr Sammakia relies upon the Employment Tribunal judgment. He has made short oral submissions to us.
27. There are five grounds of appeal. We take each ground of appeal in turn. Grounds 1 and 2 can be run together. Ms Newton submits that the Employment Tribunal erred in finding that acts committed by junior employees in the Brokerage Department in circumstances where the Claimant had clarified both in his grievances and at the Tribunal hearing that his claims were only against management in respect of the manner to which they had responded to such alleged harassment.
28. Ms Newton refers us to the two grievances, to which I have referred, dated 14 October 2006 and 20 November 2006. Both were, as I have made clear, grievances expressly stated to be against the management of UPS.
29. At the hearing, the Claimant clarified that his claims were only against management and not against junior brokerage employees (see the Appellant's solicitor's notes of evidence, EAT bundle pages 40 and the submissions of Ms Newton and the response of the Employment Judge at EAT bundle page 41).
30. At page 40, Mr Sammakia said that his grievance was against the management and not against employees. Page 110 of the bundle:

"KK: So you never raised a grievance against your co-workers?

SS [Mr Sammakia]: Not formally."

31. In her oral submissions to the Tribunal, Ms Newton said this:

"KN [Ms Newton]: He has complained against management and not about employees. His grievance is not in relation to that.

JJ [Judge]: He has nailed his colours to the mast on that one. He has said it is not against employees."

32. In his oral submissions to us, Mr Sammakia indicated that certainly in the case of Lee Johnson and one other person, they were in fact Managers, as he defined it; Mr Johnson was a Team Leader. It was Mr Johnson, of course, who is alleged to have made the comments about Mr Sammakia being an ass jockey. Unfortunately, the Employment Tribunal do not make any findings of fact as to the status of anyone who is alleged to have racially harassed Mr Sammakia. The passages I have read, both in the findings of fact and in the conclusions, are the totality of the material in front of us and contain all of the relevant findings of fact by the Employment Tribunal. They simply seem to have forgotten what the Employment Judge accepted in his exchange with Ms Newton that there were no allegations against members of staff, but only against management. It seems to us that in that respect the Employment Tribunal have erred.
33. Ms Newton has also referred to us the well-known decision of the Court of Appeal in Chapman v Simon [1994] IRLR 124 where the Tribunal made clear that an Employment Tribunal was limited in its findings to the allegations made by the Claimant. It was not open on the evidence for the Employment Tribunal to make findings of, in this case, race discrimination, which were not allegations made by the Claimant. It seems to us that in this respect also the Employment Tribunal made an error of law.
34. Ground 3 - the graffiti allegation. The submission here is that the Tribunal made an error of law in finding the graffiti discovered by the Claimant near the Respondent's premises in a bus shelter to have been an act of racial harassment. It clearly was a matter that troubled the Tribunal, as I have read the relevant passage of their conclusions. Ms Newton submits that the Tribunal were in error first, because the Claimant had not lodged a written grievance in relation to this allegation and therefore the Tribunal had no jurisdiction to deal with it. Second, that at the pre-hearing review, which considered whether particular allegations were or were not in time, there was simply no reference to it at all and the order made by the Employment Judge, both at the pre-hearing review on 14 January 2009 and the review hearing on 11 July 2009, did not include the allegation in respect of graffiti. Neither was it referred to in the claim form itself.
35. Mr Sammakia said in his oral submissions to us that the graffiti was an example of a continuing act. The difficulty about that submission is that it was not pleaded in the ET1 and was not found to be part of the series of continuing acts by the Employment Judge at the pre-hearing review or at the review of that pre-hearing review. We agree with Ms Newton. It was simply not open to the Employment Tribunal to find that the graffiti was an act of racial harassment, either freestanding or as part of a series of continuing acts. Again, Chapman v Simon applies.
36. Ground 4 - consideration of the statutory defence. Because we have found that the graffiti was not an act of racial harassment and the Tribunal were in error in finding that it was it was, it follows that the only allegations made by the Claimant which the Tribunal found proved related to undated assertions that he engaged in anal sex and that on some occasions Lee Johnson had called the Claimant ass jockey. At the Tribunal, Mr Broadhurst, the Manager, admitted that he had heard Mr Johnson call the Claimant that name, but took no action as he thought it was spoken in jest by a work colleague. That was the first time that the Respondent was aware that Mr Broadhurst had overheard Mr Johnson making that suggestion. In the inquiry which the Appellant had conducted on receipt of the grievances of October and November 2006, all of those interviewed (I think some 16 employees) had denied any knowledge of such name calling or harassment; either they had not heard any such thing, or they denied that it had happened. One of those people was Mr Broadhurst.
37. It follows on those facts that the Tribunal should have found that the defence under section 32(3) did not need to be applied or considered by it. We therefore do not find it necessary to consider Ms Newton's detailed submissions on whether or not the Tribunal applied section 32(3) correctly.
38. However, we would add that having looked in detail at those submissions we think there is force in Ms Newton's argument that the Tribunal, in paragraphs 9.1 and 9.2, approached the matter in the wrong way for the reason she gives in her skeleton argument.
39. Ground 5 - failure to consider the time point. Ms Newton submits that in the light of the findings by the Tribunal in its conclusions the only incident found to be proved was in August 2006 when the name calling of Mr Sammakia took place by Mr Johnson. That was the Claimant's case (see EAT bundle page 127).
40. In those circumstances, Ms Newton says it was incumbent upon the Tribunal to reconsider the time point. Having done so, it should have concluded that that allegation was out of time and it was not just and equitable to extend time because there were no compelling reasons put forward by the Claimant as to why it should. In our judgment, this is an erroneous submission. It is quite clear when one looks at the very full judgment of the pre-hearing review on 14 January 2008 before Employment Judge McMahon that he made a quite specific ruling. It appears clearly in three separate places in the judgment:

At paragraph 1

The claim of race discrimination submitted in July 2007 is in time." (EAT bundle page 93).

At paragraph 5.7:

"I find that the examples of race discrimination put forward by Mr Sammakia constitute or amount to an act extending over a period. I am satisfied that the alleged incidents of discrimination are linked to one another (as the claim is put by Mr Sammakia) and that they are evidence of a continuing discriminatory state of affairs based on racial grounds. It follows that I accept that all of the allegations set out above in paragraph 4.5 are to be treated as in time. I am also satisfied that it is in the interests of justice to treat the claim as amended by the addition of the further particulars put forward at the hearing and recorded in paragraph 4.6." (EAT bundle page 93)

And finally at paragraph 5.19:

"In summary, I am satisfied that:

(i) the claim of race discrimination submitted in July 2007 was in time and the tribunal has jurisdiction in that respect and further that the actions complained of within that claim form (and the further matters referred to in paragraph 4.6 above) amounted to an act extending over a period which ended on 31^st May 2007." (EAT bundle page 95)

41. In our judgment, the Employment Judge was not deciding that the allegations put forward by Mr Sammakia and summarised in paragraph 4.5 of the Reasons were capable of being a continuing act; he was deciding that they were in fact a continuing act. He was, having heard evidence, making findings of fact, as such his decision was res judicata. As far as the merits Tribunal was concerned they were bound by his finding. It was therefore not incumbent upon the Employment Tribunal to reconsider the issue of time having dismissed most of Mr Sammakia's allegations of racial harassment. For those reasons, the appeal will be allowed.

Disposal

42. We are going to apply Dobie v Burns International Security Services Ltd [1984] IRLR 329 and remit the case back to the same Tribunal to reconsider its judgment in the light of our judgment. We will leave it to the Employment Tribunal to decide whether it wishes to call for further evidence or simply decide the matter on the basis of submissions.