Appeal No. UKEAT/0229/11/JOJ
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At
the Tribunal
On
29 June 2011
Before
HIS
HONOUR JUDGE McMULLEN QC
MRS C BAELZ
MR M CLANCY
MRS
H PUROHIT APPELLANT
(1)
HOSPIRA UK LTD
(2) MS E MARSH RESPONDENTS
Transcript of Proceedings
JUDGMENT
PRELIMINARY HEARING – APPELLANT ONLY
SUMMARY
PRACTICE AND PROCEDURE – Case management
RACE DISCRIMINATION –
Direct
SEX DISCRIMINATION – Direct
The Employment Tribunal did not err in taking statements as read,
and in not adjourning. It dealt with each of the 12 issues raised by the
Claimant and dismissed them all, either because the event did not take place or
when it did, the Employment Tribunal directed itself correctly on the law.
HIS HONOUR JUDGE McMULLEN
QC
Introduction
1.
This case is about sex and race discrimination, victimisation and sexual
harassment, and Employment Tribunal procedure. It is the Judgment of the court
to which all members appointed by statute for their diverse specialist
experience have contributed. We will refer to the parties as the Claimant and
the Respondents, Hospira UK Ltd, and Ms Marsh.
2.
It is an appeal by the Claimant in those proceedings against a reserved judgment
of an Employment Tribunal sitting at Watford over about ten days under the
chairmanship of Employment Judge Bedeau. It was constituted of the
Judge, Mrs K Boak and Mr G Phillips. The Reasons were
given in 30 pages, following correction on 20 April 2011. The
correction was simply as to the title of the Respondents. The Claimant was represented
by her husband, who has some legal qualifications and operates, pending
registration, under the title of Surush Legal Services. The Tribunal
recognised that he was experienced and understood his way around the law, and
so do we, having heard from him and read the extensive legal arguments in
support of the case. The Respondent was represented by counsel. The Claimant
made a number of claims of direct sex and race discrimination.
3.
The 12 issues listed in paragraph 2 were fully ventilated. The Tribunal
dismissed all of the claims against both Respondents. Ms Marsh, the Second
Respondent, had a limited role. The Claimant appeals. Directions sending this
case for a preliminary hearing were given by Underhill P following a
direction he gave to the Employment Judge to respond to three grounds of appeal
raised by the Claimant. There are two other appeals in this case which he
decided had no prospect of success and which I will hear this afternoon under rule 3(10).
The questions directed to the Employment Judge have been answered, and we are
grateful to him. They have also been the subject of further submissions by
Mr Purohit and by the Respondent, for the President directed that the
Respondent should provide written submissions. The Respondent has appeared
today through Ms Canavan, who was at the Employment Tribunal, but we have
not invited her to play any part in these proceedings.
The facts
4.
A short description of the facts will probably not do justice to the
complex relationships in this case, but we will do the best we can to keep it
simple. The Tribunal introduced the parties and Mr Purohit in this way:
“7.1 The first respondent is a health care provider. It
produces components for the National Health Service and health care industry.
Its finance and administration offices are in Leamington Spa. It also has
premises in Park Royal, South London and Aston. It is an international company
with businesses in Spain, Germany, Austria, Italy and Portugal.
7.2 The claimant commenced employment with the respondent on
5 January 2004, as Technical Assistant. In October of that year she
was appointed to the position of Production Technician with effect from
25 October 2004. From 1 August 2008, she was given the
title of Releaser. On 5 November 2008, she was seconded to the
position of Senior Checking Technician, Lead MTO4 equivalent to start from
1 January 2009. Her secondment came to an end on
30 April 2009. She then reverted to her releasing role. Her place
of work was at the first respondent’s Park Royal premises North West London. Her husband was also employed by the first respondent until his dismissal for
misconduct on 8 June 2009. His unfair dismissal and race
discrimination complaints were dismissed by a different tribunal in
September 2010. The claimant assisted him and gave evidence in support of
the case. Her complaints before us were many and varied. We now take them in
chronological order.
7.3 Ms Elaine Marsh was employed by the respondent as
Senior Operational Technician in charge of the Compounding Team. The
Compounding Team puts together the drugs into packages. There were 22 members
of staff in the Compounding Team. We find that 16 out of the 22 during
Ms Marsh’s employment with the first respondent, were Asian. Ms Marsh
is white. She was managed by Ms Dimple Kavia, who is Indian. The
packages would be checked by those in the Releasing Team, including the
claimant. The releasers were part of the Quality Team and reported to
Mr Anton Joseph, Assistant Quality Manager, who in turn reported to
Mr Gavin Nixon, Quality Manager.”
5.
During the course of her career at the Respondent she was in the
presence of people who seemed to take lightly comments which are held to be
either racist or sexist. The Respondent has in place a system for dealing with
matters under its Dignity at Work Policy. The Tribunal, in the course of its
chronological approach to the issues in the case, made findings and then
conclusions. The Tribunal addressed itself to issues of law in seven pages,
and focussed upon the statutes themselves that is, sections 1(1),
4(2), 3(4), and the burden of proof under section 54A of the Race Relations Act
1976 and the corresponding sections and burden of proof under the Sex
Discrimination Act 1975. The Tribunal directed itself in accordance with
harassment under section 3A and victimisation under section 2 of the Race
Relations Act. It also considered the relevant authorities.
6.
The Claimant was not accepted for the most part as a reliable witness of
the events that had occurred, and particularly in respect of a things to do
list, which she said she kept contemporaneously but which the Tribunal
found she did not.
7.
The Tribunal first considered the complaint against Ms Marsh about
a remark said to have been made by her. It was not. That is a finding that
was open to it: there was competing evidence, it accepted Ms Marsh’s case,
and rejected the Claimant’s. It did not need to consider the matter any
further in relation to any of the statutes, since the primary basis of the Claimant’s
case had not been made out. So the Tribunal was entitled to find that the
remark attributed to Ms Marsh was not made.
8.
The rest of the case dealt with a series of allegations against a number
of the employees of the Respondent, and in respect of each one the Tribunal
made findings dismissing the allegation either because the remark was not made
or in its context did not constitute discrimination of the kind alleged by the
Claimant. The Tribunal took an analytic approach to the list of issues and answered
each one against the Claimant. On each, the finding by the Tribunal was one
that it was entitled to come to.
9.
It is fair to say that the Claimant made some progress in the
allegations which she made. First, a disgraceful text sent by Mr Browne’s
mobile phone on 15 May 2010 was found to have been sent by a friend
at his cricket club, who sent it to 15 contacts including 3 employees,
one of whom was the Claimant. It was in very bad taste and it was explicitly
sexual; it caused offence to the Claimant. The matter was fully investigated,
no fault was found at the feet of Mr Browne, and he apologised to the
Claimant for what his friend had done. The matter was fully developed through
the Respondent’s policy.
10.
As to Mr Browne, the Claimant criticised the comparative treatment
of him and another employee, Mr Pham, and that Mr Browne had, as it
were, been let off. The Tribunal upheld the Respondent’s case that he was
treated differently because he did not know of the text until it had been sent.
The failure to suspend Mr Browne, the Tribunal found, was based upon its
findings of fact about who did what at the cricket club.
11.
A remark was made by Mr Browne when asked what he had done over the
weekend; he said he had bought a cat. The Claimant contended that that was
discrimination on the grounds of sex. The Tribunal found that this had no
reference to sex or the female sex, and was not a comment of a sexual nature;
it dismissed that allegation.
12.
The Claimant complained of a remark about wearing a shirt and a lab
coat. The Tribunal held that there was simply a suggestion regarding the heat,
and it was nothing to do with the Claimant as a woman not being able to take
off her shirt without being embarrassed. The Tribunal decided that the
statement was directed at everyone and it was about a discussion between two
workmates.
13.
An allegation was made about someone singing a crude song. The Tribunal
found the song was not sung; that was a matter of fact.
14.
The Claimant contended that her work colleagues were in the habit of
asking questions about whether she had problems. The Tribunal, having made
findings of fact, found that questions put to the Claimant were wholly
innocent, unrelated to her sex or race, and dismissed the claim.
15.
A substantive issue arose about whether Mr Browne was directed to
work differently in a different place from the Claimant. The Tribunal heard
evidence, to which we will turn in a moment, and decided that they were not
working together.
16.
The Claimant contended that, from the sending of the text until
30 June 2010, she was not contacted about her welfare, but the
Tribunal made findings of fact that she was so contacted on 17 May,
21 May and 4 June 2010, and twice on 30 June 2010. It
dismissed that case.
17.
A comment was made by Mr Pham: “be careful that the contract is
given to Indians; you cannot trust Indians.” The Tribunal found that this was
an overtly racist comment. The issue before it arose under section 32(3)
of the Race Relations Act, which was the statutory defence pleaded by
the Respondent that it had in place a policy known to staff against harassment,
it was to do with respect. Once the matter was made known to the management, a
disciplinary hearing was conducted immediately against Mr Pham and he was
put under some disciplinary action. The Tribunal upheld the Respondent’s case
that it had taken all reasonably practicable steps to prevent Mr Pham from
behaving in the way he did by the Dignity at Work Policy and the Respect in the
Workplace training. The defence was made out.
18.
As to managers spending more time with Mr Browne discussing matters
with him and less with the Claimant, the Employment Tribunal found that the
reference was made to only one discussion, and that did not constitute the
claim.
The procedural matters
19.
The procedural matters which caused questions to be asked of the
Employment Judge are three allegations in the Notice of Appeal. The first
relates to what happened when the case opened, on Friday, 18 February 2011.
One of the lay members, Mr Phillips, who is described as “the employee
member” by the Employment Judge and “the employed member” by Mr Purohit,
who is disabled, had an urgent medical appointment, and would be unable to sit
that day but would be ready for the next day of what was to be an eight‑day
hearing. The Judge asked whether there were any objections to a Tribunal of
two. (This is permitted if consent is given: Employment Tribunals Act
1996 s 4.) He did not indicate that Mr Phillips had been hospitalised,
but simply that he had an urgent appointment. The Judge reports in his answers
to the President that Mr Purohit made no objections. The Judge noted that
Mr Purohit provides business advice, Employment Tribunal advice and
representation under the name of Surush Legal Services and if he had objected,
he would have adjourned to start the case with a Tribunal of three the following
day. The hearing went on. Directions were given as to various applications
being consolidated.
20.
The second matter was to do with the evidence and the strike out of a
paragraph. The Judge indicated that the statements would be taken as read. The
case stopped. On the next day the matter was raised about taking statements as
read, and there the three‑person Tribunal considered again the
application Mr Purohit made for witnesses to read their statements aloud and
refused it.
21.
The third procedural matter relates to what is said to be the finding of
fact that Mr Browne did not work with the Claimant. The Judge has
consulted his notes, and the finding which was made by the Employment Tribunal
in paragraph 7.42 is adhered to, this time with additional comments. The
Employment Judge rejected the allegation against the Tribunal that there was
bias against the Claimant. We normally consider self‑serving that kind
of assertion, but it is a necessary and human response. It is to be given some
weight in the light of what the Judge says about it. The Tribunal had to
consider 12 complaints and deliberate over 2 days before reaching
conclusions. The Tribunal was satisfied that Mr Browne was transferred to
another department until he left the company in September 2010, and from
15 June 2010 the two did not work together; that was a finding of
fact open to it.
22.
The fourth procedural issue relates to cross‑examination of the
Claimant by the Respondent’s counsel on 24 February 2011, the
statement having been taken as read; interruptions were made by
Mr Purohit. The Tribunal found proper questions were asked by the
Respondent’s counsel, and the Claimant was clear and lucid in her responses;
she showed no obvious signs of distress. At 3.30pm Mr Purohit apologised
to the Tribunal for his interventions, as he said he wanted to relieve the
Claimant from stress. The Tribunal did not sit the next day.
23.
On Monday 28 February 2011 the Claimant did not attend. Mr Purohit
handed to the Tribunal a letter from her doctor. The conclusion is this: “Under
these circumstances she feels that it has become very difficult for her to
attend court tomorrow. I would appreciate if another date can be arranged
after four weeks.” Mr Purohit applied for an adjournment; he said his
wife was suffering from stress as a result of the cross‑examination.
This took the Tribunal by surprise, as at the time of the cross‑examination
she showed no obvious distress at the questions put to her.
24.
A possible solution was advanced by Mr Purohit that questions from counsel
should be put in writing and answered in writing; the Tribunal said that that
would not be fair, and in any event the counsel’s cross‑examination would
be for only a short period of time. The Tribunal decided that it would not
accede to the application on medical grounds. It said that this material was
insufficient to conclude that she was unable to participate in the proceedings,
but reflected only her own view. She was ordered to attend at 2.00pm and the
hearing was adjourned until then.
25.
At 2.00pm she became incoherent, and the Judge elicited from her that
she was taking sleeping tablets. When he asked her if she could delay until
after her evidence, she said she could, so the Tribunal adjourned the case
until the following day, and if she remained unwell there would be
submissions. The following morning the Judge asked her how she was feeling;
she replied she was feeling much better than the previous day, as she had only
taken half a sleeping tablet. He reminded her that if she needed to take a
break she should only ask. She gave evidence in the same manner with no
obvious signs of distress.
26.
A further matter referred to by the President was that the Tribunal
changed its mind. The Judge has reported that the Tribunal met in private on
11 March 2011 to have a discussion on the case, and decided
unanimously to dismiss the claims. The Judgment was dictated and sent off for
typing. It was signed on 4 April 2011 and instructions were given for
it to be promulgated. During this time, apparently, staff at Watford were
making arrangements for a reconvened hearing on remedy and case management on
other matters. From that Mr Purohit formed the view that it was to deal
with what would on this hypothesis then be a successful claim. The Judge is
categoric in his replies to the President. On the basis that the decision was
made by the three members when they met, and signed by the Judge on
4 April 2011, it cannot, he says, have been the case that a decision
was made in the Claimant’s favour that would lead to a remedy hearing.
The submissions
27.
Very substantial arguments, at least in length, have been raised before
us; 26 pages of a skeleton argument have been advanced by Mr Purohit. The
body of the skeleton deals with legal submissions. Some of these are simple
statements of the law, and, with respect, they do not say why the Employment
Tribunal, having given itself a correct direction, did not apply that. He
makes contentions, for example, that the Tribunal refused to make an inference,
or that it did not consider the burden of proof. We reject these allegations
on the basis simply of looking at the Tribunal’s Judgment; it did direct itself
in accordance with those matters, and all of the issues in the burden of proof
under Igen Ltd v Wong [2005] EWCA Civ 142.
28.
The Respondent’s submissions focus on the procedural issues, and
generally make the point that most of the rest of the appeal is based upon
allegations of perversity. We will deal with them as we discuss the appeal
below.
Discussion and conclusions
29.
We will first deal with the procedural matters. The first is whether
the two‑person Tribunal was right to strike out part of the Claimant’s
witness statement. This is the Judge’s answer to paragraph 7.16 of the
Notice of Appeal. In our judgment, the Employment Tribunal had power to do
that, since it related to a without prejudice discussion between the Claimant,
Mr Purohit and the Respondent’s counsel about another case, and the
decision was that this was not to be raised in the proceedings.
30.
That is a matter of case management, relevance and so on; it was taken
by the Judge with Mrs Boak present. As the Respondent points out, whatever
objection there may be to the then constitution of the Tribunal, this was a
decision within the Judge’s case management discretion, and was one that he was
entitled to make. It is also correct, in our judgment, for it was to do with
an irrelevant matter.
31.
We take a slightly different approach, however. It is plain that
informed consent was given by Mr Purohit to matters being dealt with by a
two‑person Tribunal at various stages. The stages were very short: there
was that striking out of the paragraph, and there was the issue to do with the
reading of the statements. The Tribunal is entitled to consider evidence to be
taken as read (see Mehta v Child Poverty Agency
[2011] IRLR 305), and the decision made by the Judge with Mrs Boak was one
that he was entitled to make. However, if that was wrong procedurally, the
matter was renewed the following day by Mr Purohit, and the three‑person
Tribunal ruled against him. It is a matter of case management entirely open to
it, applying the law in Mehta; no error has occurred. Indeed, it
would seem to be in the Claimant’s favour, since she was obviously distressed
at various stages in the case, and it is usually a great relief for a witness
to know that all their evidence in written form has already gone in.
32.
The third matter relates to the contentions about Mr Browne and his
working with the Claimant, and in the light of both the original finding by the
Tribunal and the additional comments by the Judge it cannot be said to be
perverse; the Tribunal made its decision on the evidence.
33.
The next procedural issue was to do with the health of the Claimant on
28 February 2011. The Tribunal was entitled to take the view that
the hearing should not be adjourned for four weeks, following Teinaz v London Borough of Wandsworth [2002] ICR 1471. It is correct, as the
Judge says, that the doctor’s letter does not indicate that the Claimant should
not take part in the proceedings; it was open to the Tribunal to decide this.
When the Claimant became affected by sleeping tablets after lunch, the Tribunal
properly adjourned and came back the next day; on that day she indicated no
discomfort. We see no error of law in that either.
34.
Finally, as to the suggestion that the Tribunal stood on its head, this
cannot survive the further comments of the Judge. It is plain the Tribunal
made its decision long before, and providentially set up the
11 April 2011 hearing should there be need for a remedy hearing,
which there was not. This allegation is misconceived.
35.
We then turn to the substantial allegations in this case. With respect,
many of these are about perversity, and none of them reaches the high threshold
that it is necessary for a successful Appellant to surmount. In our judgment,
the Employment Tribunal addressed each of the issues it was required to
consider. It made findings against her, some of which were based upon her
unsatisfactory evidence or her appreciation of the facts. It has dealt in the methodical
way we have looked at it above in respect of each of the matters, and has come
to conclusions having directed itself correctly. We broadly accept the
submission of counsel for the Respondent in writing that these issues do not
constitute errors of law, and none has been demonstrated to us by
Mr Purohit in his careful address to us. The appeal is dismissed.
