United Kingdom Employment Appeal Tribunal

Appeal No. UKEATPA/0245/11/CEA

 

 

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

 

 

               At the Tribunal

               On 14 September 2011

 

 

 

Before

HIS HONOUR JUDGE McMULLEN QC

(SITTING ALONE)

 

 

 

 

 

MS J LONGSTRETH                                                                                             APPELLANT

 

 

 

 

 

 

 

 

Transcript of Proceedings

 

JUDGMENT

 

 

 

 

 

 

 

 

 

 

 

 

APPEARANCES

 

 

 

 

 

For the Appellant	MS J LONGSTRETH (The Appellant in Person)

 

 

 

SUMMARY

FIXED TERM REGULATIONS

The Employment Tribunal did not err in dismissing the claim of unfair dismissal and unlawful discrimination when a law lecturer’s fixed term contract came to an end.

HIS HONOUR JUDGE McMULLEN QC

 

1.            This case is about race discrimination, discrimination against a fixed-term employee, whistleblowing and unfair dismissal.  I will refer to the parties as the Claimant and the Respondent.

 

Introduction

2.            It is an appeal by the Claimant in those proceedings against a judgment of an Employment Tribunal chaired by Employment Judge Balogun, sitting at London South, over 4 days and 2 days in chambers, registered with Reasons on 18 January 2011.  The Claimant represented herself.  The Respondent was represented by counsel.

 

3.            The Claimant made the claims summarised above.  The Respondent contended it dismissed her fairly for some other substantial reason - that is, the ending of a fixed-term contract - and did not discriminate against her.  It also took jurisdictional points relating to the statutory grievance procedure and the presentation of claims in time.

 

The issues

4.            The issues were set out by the Employment Tribunal in paragraph 3 of its Judgment, and these replicated decisions made at a Case Management Direction hearing before Employment Judge Baron on 21 April 2010.  One aspect of that relates to a concession that the Respondent made which was that the Claimant was dismissed for redundancy, a matter which the Tribunal did not fully accept.

 

5.            The Employment Tribunal dismissed all of the Claimant’s claims.  She appealed.  Initially the papers were put before HHJ Peter Clark on the sift and, although the Claimant made a fresh Notice of Appeal, what HHJ Peter Clark gave as his opinion on the first Notice of Appeal still has life for the present, fresh Notice of Appeal.  For he said this:

 

“The Appeal has no reasonable prospect of success.  Taking the headed grounds of appeal in turn:

1.   Burdon of Proof.  The Employment Tribunal correctly directed themselves as to the burden of proof in discrimination cases (paragraphs 12-14).  Their reference to the Appellant failing to discharge the burden of proof (paragraph 36) means, in context, that she failed to raise a prima facie case on the facts found at Stage 1, such as to transfer the burden to the Respondent at Stage 2 of Igen v Wong.  She therefore lost her race discrimination case on its merits.

2.   That claim also failed (a) in the absence of a statutory grievance; and (b) as being out of time.  For those reasons her unmeritorious claim also failed.

3.   There was, on Employment Tribunal’s findings of fact, no less favourable treatment of the Appellant on the grounds of her fixed-term status; she was engaged on a 1 year fixed-term contract as a law lecturer to cover the sabbatical of Mr Coates.  The term expired; her employment was not then continued.

4.   She was not dismissed by reason of redundancy but on expiry of her fixed-term contract.  The Employment Tribunal found that there was then no alternative position for the Appellant to take (paragraph 45).  The dismissal was fair.

5.   The Employment Tribunal was entitled to find that the Appellant did not make a protected disclosure but that if she had done so as alleged it was not the reason for her dismissal nor a ground for the detriment (none being found) on which she relied.

6.   The reason for dismissal was not redundancy (see under paragraph (4) above).

7.   Right to a fair hearing under Article 6; at paragraphs 21-22 the Employment Tribunal give cogent and unimpeachable reasons for refusing the Appellant’s postponement applications.  Whether the Appellant was genuine or disingenuous was for the Employment Tribunal to assess.”

 

6.            In a second Notice of Appeal, considerably reduced from the first of 18 pages down to 6, the Claimant makes essentially the same points and her fresh appeal caused no alteration in Judge Clark’s view when he gave his Reasons on 13 June 2011.

 

7.            The Claimant’s case as presented in this rule 3 hearing consists of a skeleton argument of over 100 pages (the longest I have seen for any EAT hearing), a bundle of extracts from 120 authorities, roughly 30 citations from statutes and a supplementary bundle of 350 pages in addition to the core bundle.  Today the Claimant, again representing herself, having had the opportunity to discuss her case with counsel under the ELAA scheme, invites me to consider further documentation, which she accepts was not before the Employment Tribunal, relating to “certain factual matters” of her students.  The material, therefore, is voluminous.

 

8.            In Haritaki v South East England Development Agency [2008] IRLR 945 at paragraphs 1-13 I set out my approach to rule 3; it should be read with this Judgment.  That approach has been approved by the Court of Appeal in, for example, Hooper v Sherborne School [2010] EWCA Civ 1266 and Evans v University of Oxford [2010] EWCA Civ 1240.

 

The legislation

9.            The relevant provisions of the legislation were set out by the Employment Tribunal, ss.1(1)(a), 4(2)(c) and 2 of the Race Relations Act 1976.  S.2 deals with victimisation for doing a protected act, and relevant circumstances for the purposes of comparison are dealt with in s.3(4).  The burden of proof was set out by the Employment Tribunal under s.54A by reference to the authorities including Igen v Wong [2005] IRLR 258, and Madarassy v Nomura International plc [2007] IRLR 246.

 

10.         The Fixed Term Employee Regulations 2002 give the right to a person not to be treated less favourably than the employer treats a comparable permanent employee as regards the terms of her contract or by subjecting her to any detriment.

 

11.         Provisions relating to whistleblowing injected into the Employment Rights Act 1996 are found at ss.103 and 43B.  Unfair dismissal, in its ordinary sense, is dealt with by ss.94 and 98.  Case management powers are given to Employment Tribunals including the power to determine the length of a hearing.

 

 

The facts

12.         The Tribunal introduced the parties in this way:

 

“1. The Claimant is a Black British Citizen of West African origin.

2.   The Respondent is a Higher and Further Education College, consisting of 3 colleges, Croydon Sixth Form College; Croydon Skills and Enterprise College; and Croydon Higher Education College.

3.   The Claimant was initially employed by the Respondent on a sessional basis, from 25 September 2007 to 21 September 2008, as a lecturer in the law department.  In August 2008, the Claimant accepted a position as a Full Time lecturer in Law on a 1 year fixed term contract from 22 September 2008 to 21 September 2009, covering a full time member of staff, Simon Coates, who had taken a 12 month sabbatical.

4.   The Claimant alleges that on 1.12.2008, Stella Diamantidi (SD), Curriculum Co-ordinator, dealt with her in an angry and aggressive manner after the Claimant had excluded a pupil from class for being disruptive.  SD denies this, claiming that she was firm when speaking to the Claimant as she considered her actions inappropriate and was concerned by them.  This suggests to us that she was speaking to the Claimant not in her usual tone.  The Claimant says in her statement that this was the first time that she had experienced problems with SD and that up until then they had previously enjoyed amicable relations.

5.   Having observed the Claimant over the course of the hearing, we consider that she is a sensitive person who is jealous of her professional reputation.  As a result, she is affronted by any challenges to her professionalism.  This is one such occasion, as her decision on how to control her class was being challenged.  We believe that the Claimant would have perceived SD’s questioning of her decision and the manner of doing so as an act of aggression.”

 

13.         Just pausing for a moment, the Claimant put to me that she was a conscientious law lecturer and had done nothing to harm the college.  I am at once prepared to accept that, but I also take the view in the light of the considerable industry the Claimant has put into this by reason of her learning, that she is jealous of her professional reputation and seeks to make a powerful presentation of the matters which she puts forward with great scholarship.

 

The Claimant’s case and conclusions

14.         The Tribunal reached conclusions, having heard submissions, and it is important to recognise that she failed at the threshold on certain jurisdictional matters.  The Tribunal made its conclusions first in relation to race discrimination and the statutory procedures for raising grievances.  The simple point was that during the relevant period when a grievance under the Employment Act 2002 had to be lodged before presenting a claim to a Tribunal, none was raised in respect of race.

 

15.         Such matters as the Claimant raised were in a claim form more than three months after the last putative event.  There is cogent evidence, in my judgment, for the findings by the Tribunal on the chronology.  These claims were indeed out of time.  They were not presented in accordance with the statutory grievance regime.  As a matter of jurisdiction, the Tribunal could not deal with the race claims, but it made alternative findings in relation to time based upon what is known as a “continuing act”.  It found against the Claimant; that is a question of fact (see the judgment of the Court of Appeal upholding my Judgment in Lyfar v Brighton & Sussex University Hospitals Trust [2006] UKEAT 0651/05/3101).  I can see no error of law in the Tribunal’s approach to the timing and the chronology.

 

16.         However, as the Claimant put it in her argument to me, the Tribunal approached the case wearing “belt and braces” and so, in the third position in relation to race, the Claimant was found not to have passed the burden of proof to the Respondent.  For cogent reasons it seems to me, the Tribunal dismissed the Claimant’s case saying the following:

 

“36.              Even if we are wrong, we do not believe the Claimant has discharged the burden of proving that she was racially discriminated against by SD.  We have already found that SD is by nature a person who is firm forthright and makes very clear when she is displeased about something.  As indicated in our findings, there were a number of occasions when SD had cause to discuss concerns with the Claimant and became impatient with her because of the Claimant’s responses which were viewed as unhelpful.  The Claimant has not pointed to any actual comparators and we find that a hypothetical comparator not of the Claimant’s race would have been treated in the same way in similar circumstances.”

 

17.         The Tribunal then turned to victimisation and the logic of the Tribunal’s findings in relation to this, in dismissing the Claimant’s case, are clear in the light of the foregoing.  The Tribunal came to this conclusion:

 

“37.              The Claimant cannot bring a claim of race victimisation as she did not do a protected act under the race relations act during her employment.  We have found as a fact that the Claimant did not allege to SD that she was racially discriminating against her.  Also, there was no allegation of race made in the grievance or on any other occasion.  In the absence of a protected act, the victimisation compliant inevitably fails.”

 

18.         In its conclusions on fixed-term worker, the Tribunal said this:

 

“38.              There is no evidence whatsoever to support a finding that the matters complained about in relation to racial discrimination by SD amounted to detrimental treatment on grounds of the Claimant’s fixed term status.  Unlike other forms of discrimination where the characteristic relied on is an intrinsic part of the Claimant’s identity, the fixed term status is imposed by agreement with the employer.  It is therefore inconceivable that having agreed that status, the Respondent would seek to harass the Claimant because of it.

39. On the issue of access to financial assistance for post graduate studies.  In view of our findings at paragraph 29, we find that there has been no less favourable treatment in this regard and the claim fails.”

 

19.         That deals with the aspects of fixed-term worker discrimination the Claimant had raised.  Reference is made to the Tribunal’s findings on per‑employment discrimination against a fixed‑term worker, at paragraph 29, and this part of the Judgment is illustrative of its approach.

 

“29.              The Claimant says that the behaviour of SD towards her, as well as being on grounds of race, was also because of her fixed term employee status.  The Claimant also contends that she was treated less favourable in terms of benefits.  She says that a Louise Powell Cook, a permanent lecturer at the college, received a bursary to finalise her LLM, whereas she (the Claimant) was not given financial assistance to complete her dissertation.  The Claimant says she was told that she would not benefit from the bursary because of her fixed term.  Helen Price, explained in evidence that fixed term employees were not excluded from the bursary.  A certain amount of money is available each academic year for bursaries and once it has been allocated, staff have to wait for the next academic year to apply, when a new allocation of funds becomes available.  The Claimant never formally applied for a bursary but if on making enquiries she was in fact told that she would not benefit because of her fixed term contract, that may well have been because of the expiry date of her fixed term contract (before the new academic year and therefore before a new allocation of funds) rather than its status.  We consider that a permanent employee making enquiries at the same time as the Claimant, whose contract was due to come to an end through, say, resignation or redundancy before the new academic year would have also been told that they would not benefit from a bursary.”

 

20.         I see some difficultly in paragraph 38, cited above, in the logic of the Tribunal’s conclusion.  It is axiomatic in discrimination claims brought by employees that they have been taken on by their employer knowing that they have a protected characteristic - BME or gender or disability, for example - but what occurs is some event during that career.  However, I have looked most carefully at the substance, rather than at the supposed inconceivability, of the findings by the Tribunal, and the Tribunal has dealt with the Respondent’s approach to fixed-term working.  In my judgment, those were questions of fact.  The availability of a bursary and the failure to continue the fixed-term contract were matters of fact for it to decide.

 

21.         The Tribunal then turned to whistleblowing.  This claim failed, principally as a matter of chronology, but also as a matter of the presentation of the Claimant within s.43; that is, reasonable belief in the information she disclosed.  The Tribunal held that, at best, the Claimant was mistaken and the question for it was whether the Claimant had, on reasonable grounds, a belief the material which she was being asked to handle was wrongful.

 

22.         The Tribunal accepted SD’s evidence that she was not asking the Claimant to manipulate the scores, for the Tribunal said this:

 

“18.              As the Claimant was the sole marker of the seminar participation paper and it was the first time that the college had introduced this paper, SD decided to go through the results with the Claimant to ensure that the paper had been marked on a consistent and proper basis.  The Claimant says that she was told by SD to increase the marks of those students who had failed in order to give them a pass mark of 40%.  She also said that SD instructed her which of the students’ marks to increase and by how much.  SD denies this and says that all she instructed the Claimant to do was to review the scores.  We prefer SD’s account not least because the Claimant’s account was inconsistent with the document setting out the changes.  This shows that some students still failed despite having their scores increased while others had their scores decreased [163a-163b].  The Claimant, not for the first time, appears to have misunderstood the instruction she had been given.”

 

23.         The Tribunal looked for objective evidence and found none as to the instruction and did not accept that the Claimant had passed the test in ss.43B and 43C for protection as a whistleblower.  But chronology, again, is against the Claimant, for the Tribunal adopted a default position lest it be wrong on the primary position, and said this:

 

“42. Even if we are wrong, as the email in question post-dates the meeting of 15 June 09 at which the Claimant was notified of the decision not to renew her fixed term contract, the decision to dismiss could not have been on grounds of the disclosure.”

 

That, therefore, disposes of the whistleblowing case except that there is a detriment issue, further outstanding, and the Tribunal provided sufficient findings in relation to that at paragraphs 43 and 44. 

 

24.         The Tribunal went on to consider unfair dismissal.  Here, the matter of the Respondent’s concession arose, and the Tribunal dealt with it in the following way:

 

“45.              We find that the reason for dismissal was the non renewal of the Claimant’s fixed term contract on expiry.  This is a potentially fair reason pursuant to section 98(1)(b) ERA.  The Claimant entered into the contract knowing that it was for a finite period, she knew that she was covering for a teacher who had taken a sabbatical and was aware from February 09 that he would be returning to post in September 09 for the new academic year.  The reason given for dismissal is consistent with this arrangement.  The Respondent has confused the issue by telling the Claimant that because of her continuous service there was a redundancy situation.  This in our view is a misunderstanding of the definition of a redundancy.  A redundancy decision is not defined by length of continuous service but by whether the statutory definition of a redundancy at section 139 ERA is satisfied.  In this case it was not as the requirements for persons to carry out the teaching role undertaken by the Claimant had not diminished.  The Respondent still needed a Law Lecturer, to teach those subjects but someone other than the Claimant.  There were no alternative positions for the Claimant to take up and in those circumstances we find that the dismissal was fair.”

 

25.         One can see the difficulty facing the Tribunal in the light of the language used by the Respondent.  The role of the Tribunal under s.98 is to decide the reason for the dismissal having regard to the reason shown by the employer.  That means that it does not have to decide in accordance with what the employer says, but has to have regard to it.  Here, the correct analysis of what occurred at the college is set out by the Employment Tribunal and it reached a conclusion which was open to it.

 

26.         In her skeleton argument the Claimant also deals with a number of fairness points, which HHJ Peter Clark referred to.  They begin with the compression of time, for the Claimant sought a hearing of 16 days and the Tribunal allocated to her only four.  Nevertheless, those are decisions which were for the Tribunal to make, and I see no error in its case management of the hearing.

 

27.         As is now common, there is a Reasons challenge on appeal but, in my judgment, the Reasons of this Employment Tribunal meet the standard of Meek and Greenwood v NWF Retail Ltd UKEAT/0409/09/JOJ, and should not be struck down for want of detail.  See, as apt for this learned litigant, the postscript to the judgment in English v Emery [2003] IRLR 710 CA.

 

28.         The Claimant also makes the point that she is a litigant‑in‑person; indeed she is.  However, she is the category of litigants‑in‑person such as the distinguished academic claimant in Bailey v University of Westminster [2009] All ER (D) 47, about whom I made some observations.  The Claimant is entitled as a litigant‑in‑person to generous treatment at the Employment Tribunal and before this court because, although highly educated in law and a creditable performer on her feet in public, she necessarily suffers the kind of problems that any litigant‑in‑person does.  I have made due allowance for that.  I have read her skeleton argument and I understand the scope of the authorities to which she refers.

 

29.         She has put before me everything that could possibly be said in respect of arguments in her favour.  She has not presented any argument which has a reasonable prospect of success on appeal.  Some have to get over several cumulative hurdles.  Making my own decision, I agree with the reasons given by HHJ Clark, now that I have seen considerably more than he ever did.  The application is dismissed.