Appeal Nos. UKEAT/0296/11/ZT
UKEAT/0297/11/ZT
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX
At
the Tribunal
On
9 November 2011
Before
HIS
HONOUR JUDGE McMULLEN QC
(SITTING ALONE)
MRS
H PUROHIT APPELLANT
HOSPIRA
UK LTD RESPONDENT
Transcript of Proceedings
JUDGMENT
SUMMARY
PRACTICE AND PROCEDURE
Striking-out/dismissal
Costs
It was open to the Employment Judge to
strike out part of the Claimant’s claim, the remainder being later dismissed at
a full hearing. The Employment Judge was entitled to find that the Claimant
jumped the gun in bringing her claim that the Respondent had not promptly
investigated her complaint, and to award costs relating to that part of the
claim. Barnsley Metropolitan Borough Council v Yerrakalva
[2011] EWCA Civ 1255, Dean & Dean [2-11] EWCA Civ 1331 and Arrowsmith
[2011] EWCA Civ 797 applied.
HIS HONOUR JUDGE McMULLEN QC
1.
This case is about the striking out of claims by an Employment Judge and
an award of costs. I will refer to the parties as the Claimant and the
Respondent.
Procedural introduction
2.
I will be brief in my account of the proceedings, since there is an
extant Judgment at a rule 3(10) hearing on 29 June 2011, at which
I allowed three points to be argued. That followed a Judgment I gave on behalf
of the EAT in a preliminary hearing that day (UKEAT/0229/11). The sequence may
seem a little odd, since today’s appeals are in relation to interim decisions
made by Employment Judge Ryan on 27 September 2010, ahead of and
shaping the eight‑day hearing which was then conducted before Employment
Judge Bedeau and members in 2011; that latter case was determined at the preliminary
hearing. All of the grounds advanced on behalf of the Claimant were dismissed,
and permission to appeal was refused, by the Court of Appeal, Elias LJ
making it clear that the Judgment of Judge Bedeau and members was correct,
the appeal from it had no merit whatsoever, and permission to take the matter
to an oral hearing in the Court of Appeal was refused.
3.
I understand that there are other proceedings on foot in respect of the
Claimant, and so I will say little about them. There are appeal proceedings in
relation to her husband, Mr Purohit, which have been dismissed by an
Employment Tribunal and have no prospect of success on appeal, but
Mr Purohit is awaiting a hearing under rule 3(10). In those
proceedings his claims against the same Respondent were dismissed, and he was
ordered to pay £10,000 in costs. So I incorporate in this Judgment the
Judgment I gave in UKEAT/0229/11 and the rule 3(10) Judgment I gave in
this case.
Grounds of appeal
4.
There are three short points, and I will deal with the arguments about
them at the same time as I give my conclusions.
Investigation and the costs order
5.
The first issue relates to the Claimant’s case that the Respondent
discriminated against her on the grounds of race (she is Indian) in conducting
an investigation into an offensive text sent to her. The Judge decided that
the Claimant had jumped the gun. The offensive text was sent on
15 May 2010; 15 minutes later, there was a retraction indicating
that the phone from which it was sent, Mr Browne’s, had been taken over by
one of his friends in the dressing room at his cricket club, and later that
Saturday night a complaint was made to a manager Sergio Gonzalez. On
17 May there was a meeting, followed by an exchange of email between those
who were present. This was said to be an informal meeting. What Mr Gonzalez
wanted was, as he put it, the Claimant’s assistance to help the Respondent
address the issues that were set out. It is plain the Claimant was upset by
the text. It is recorded that she was not intending to raise a formal
grievance against Mr Browne, as the relationship between the two of them
had always been fine and this is the first time that something had happened,
that the Claimant was happy for the Respondent to deal with the issue via the
formal disciplinary process against him, and that the Claimant would co‑operate
if required by the disciplinary officer and that she would be content to keep
working as usual.
6.
This email was the second sent by Mr Gonzalez. The Claimant
responded with her own account, indicating that it was the Respondent’s duty to
act upon these texts, and she confirmed in the email that she was advised to
keep the incident confidential, but as to working as usual the matter was not
discussed at the meeting; in other words, the working relationship between her
and Chris Browne was not discussed. On 18 May Mr Gonzalez said this:
“In terms of your position regarding a formal grievance against
Chris Browne, I understand that you prefer to rely on us to deal with the issue
via a formal disciplinary process against him. If this is not the case and you
are intending to raise a formal grievance instead, can you please let me know
ASAP and write to us stating your grounds for complaint so we can deal with the
issue via a formal grievance process? Otherwise we will initiate the preparations
following the disciplinary procedure as explained.
Finally, I understand that you are upset with the whole
situation so please keep us informed if anything relevant occurs.”
7.
A disciplinary officer was appointed, Gavin Nixon, to investigate a
disciplinary matter about sending inappropriate text messages. The HR adviser
on 19 May said this:
“To enable completion of the investigation Gavin [Nixon] has
requested your assistance in order to take your statement. Please note that
your assistant [sic] is only required as a witness/recipient of the text
messages.
I would therefore like to invite you for the meeting with Gavin
Nixon and myself as HR representative which will take place on Friday
21 May 2010 in the HR office at 11am.
If you have any question please let me know.”
8.
Chris Browne was required to attend a meeting that day (that is,
21 May) as well, at 2.00pm. The Claimant did not wait for that meeting,
which did take place on 21 May; instead, she issued her claim form. Meanwhile,
on 20 May, an outsider Joe Craddock, who was found by management and by
the Tribunal to have written the offensive text, wrote to Gavin Nixon
indicating that Chris Browne knew nothing about the text message and could not
be held accountable; he was very sorry. A signed copy of that was sent on
25 May. It appears that the 20 May email may not have been before
the Employment Tribunal, but its precise content was replicated in the signed
copy of 25 May 2010. There never has been any other explanation, and so
it was Joe Craddock who played the tasteless prank on his friend Chris Browne,
causing legitimate upset to the Claimant and her family.
9.
The first issue that I have decided arises is whether the claim form was
in time or too early. The Judge decided that to bring proceedings on
20 May following the meeting on 17 May, in the circumstances of the
email trail set out above, was unreasonable. The claim was that the Respondent
had discriminated against the Claimant by failing to carry out a timely
investigation. On the basis of that he considered that the Claimant should pay
costs of £2,000 for the decision to issue proceedings on that date. His view
was as follows:
“32. Just because an allegation is made by an employee, it does
not mean that necessarily it is true or it is of itself actionable harassment.
Indeed, as I have found here even if this comment had been in a text message
from Mr Browne it was not actionable before the tribunal. That much is
particularly the case where incidents occur outside working time and the work
place. It is axiomatic, in my judgment, that the respondents must have a
reasonable opportunity to investigate the circumstances of such an allegation
and to say that somehow the claimant was further harassed because that did not
occur within three days, is in my respectful judgment to make an allegation
which is truly misconceived.”
10.
It is clear that a refusal to carry out an investigation could
constitute an act of discrimination, and so could dragging your feet in such an
investigation, but the management in this case did not refuse. On the
contrary, they offered the Claimant the opportunity to present the matter as a
formal grievance; she declined to do so, being content to appear as a witness
in an investigation conducted by a disciplinary officer.
11.
At one stage in the proceedings it was contended that the Claimant has a
case about the way in which she was asked questions at the meeting on
17 May. I can see nothing offensive about the question: “Do you want to
invoke formal disciplinary proceedings against Chris Browne?” Given that the
Claimant did not pursue that and left it to management, it seems to me that the
Judge was entitled to form the view that at the time the claim crystallised by
its presentation on 20 May the Respondent could not be said to have
committed any tort of discrimination. In my view the most telling piece of
evidence against the Claimant’s proposition is the email on 19 May
inviting her to a meeting to assist, and yet her response was immediately to go
to the Employment Tribunal. The Judge was entitled to hold that that was
unreasonable. At that stage it could not be said that there was a fully
constituted tort, and in my judgement the measure of time by the Judge was open
to him as a matter of fact. It is actually shorter, in that given that the
Claimant was exchanging email about the way in which she wanted this matter to
be moved on, the clock really starts on 19 May when she was invited to a
formal meeting after which time the Respondent had seen Mr Browne. In
those circumstances the Judge cannot be criticised for his finding about the
measure of time.
12.
Thereafter the question of costs was a matter for him. The Judge
recognised that it is rare in an Employment Tribunal for costs to be awarded, but
they may be, under rule 40. He considered the circumstances carefully, and
in my judgment his exercise of discretion is not to be interfered with, as the
Court of Appeal has so recently found in Barnsley Metropolitan Borough Council v Yerrakalva
[2011] EWCA Civ 1255 and in upholding my approach in Dean & Dean
[2-11] EWCA Civ 1331 and Arrowsmith [2011] EWCA Civ 797.
Victimisation
13.
I then turn to the other aspects of the case. Logically, I suppose, in
time is the contention by the Claimant that she was victimised, a claim struck
out by the Judge. The basis of the claim was that the secondment of the
Claimant was terminated as a result of her assisting her husband in his
disciplinary proceedings. In those disciplinary proceedings it is said that
Mr Purohit said he had been discriminated against. But as Judge Ryan
put it when recording the evidence that Mrs Purohit gave to him, that was
not by reference to race but simply to frustration. The Judge set out the
circumstances in which that was put, and he recorded his grave reservations
about the accuracy of Mrs Purohit’s evidence. As it turns out, those
reservations inured into hard findings by the Bedeau Tribunal as to the
Claimant’s reliability. Being generous to her, Judge Ryan was prepared to
assume that she is right and that Mr Purohit did say he had been
discriminated against.
14.
So he turned to victimisation under section 2 of the Race Relations Act,
and set out the circumstances in which it might arise. He succinctly
summarised the position in the following way:
“10. So in order for the claim of victimisation to run there has
to be a protected act as it is called within the terms of sub‑paragraphs
(a) to (e) and then the claimant has to show that that is the reason why she
was subjected to the treatment.”
15.
His conclusion was based upon what the Claimant said occurred.
In her claim form she does raise the issue, it seems to me, and does say that
she made a witness statement for her husband. It is plain that that succeeded
and did not precede the alleged act of victimisation in relation to the
secondment, and so that cannot be part of the allegation. Confining himself
therefore to the attendance of the Claimant when her husband made the remark,
the Judge said this:
“11. Clearly the bringing of proceedings, the giving of evidence
or the making of allegations do not apply because none of those things
occurred. Could Mrs Purohit’s presence as a work place representative at
her husband’s disciplinary meeting at which he said that he felt discriminated
against, be considered as doing otherwise anything under or by reference to the
Act. In my judgment it is necessary only to state that proposition to
immediately recognise that the answer must be in the negative. There is no way
in which that could be said to amount to a protected act for the purposes of a
claim of victimisation. I find without hesitation that that allegation has no
reasonable prospect of success. In any event, finding as I do that that
allegation is not within the claim form, I am driven to the conclusion that it
is substantially out of time and it would not be just and equitable to extend
time to include it. For those two reasons, I refuse permission to amend to
include that claim.”
16.
As those findings make clear, there is a question of law, yet that question
is not itself before me. The correct analysis of section 2 is not for me
to decide, but as it happens it seems to me that the Judge made the right
decisions as to the proposition. Plainly, bringing proceedings or being a
witness in someone else’s proceedings under the Race Relations Act is
a protected act, but that, as I have said above, does not arise here. That
means that the claim itself, if properly made out, could not as a matter of law
amount to a breach of section 2.
17.
The Judge went on, in the passage I have cited, to say that the claim
was not made in the claim form and that it ought not to be allowed to be put
in. In his reply to me after Mr De Marco, counsel for the Respondent, had
made his submissions, my attention was drawn to parts of the claim form not
previously relied upon. It is submitted that the Claimant in her claim form
did raise the allegation that she had attended with her husband. I am prepared
to accept for this purpose that there is in the very broadest and non‑specific
terms an allegation. For the Claimant says that, having remained present as a
work colleague in a disciplinary and appeal meeting, she was discriminated
against. True it is she mentions the witness statement, but
Mr De Marco submitted this was made as a matter of chronology later
and cannot be relevant. Mr Purohit did not challenge that, so I am dealing
only with her remaining present as a work colleague. The Judge has ruled as a
matter of law that that is not capable of constituting a protected act, and if
necessary for my decision, I would agree.
18.
In any event there must be severe doubts, as the Judge found, as to
whether a remark about discrimination was made. Even so, such remark was not in
the context of race, and therefore arguably protected by the Act, but of other
matters. That was the oral evidence given to Judge Ryan by Mrs Purohit.
In my judgment the primary finding by the Judge, which is not appealed,
remains, and so his finding as to whether it was in the claim form does not
arise. If I were to disagree with that, since it is arguable that in the claim
form there is a reference to attendance at the meeting, the matter would still
fail for the legal reason that I have described above, and so the Judge was
correct to strike it out.
Working together and harassment
19.
The third issue relates to the working relationship with Mr Browne.
The simple truth is that Mrs Purohit did not come up to proof, for she
disavowed the suggestion that management had refused her request to be parted
from Mr Browne; as she says, the issue did not come up. Management cannot
be criticised for failing to remove Mr Browne from working closely with
the Claimant and therefore this ground of appeal is dismissed.
20.
The nature of the harassment claim is based upon a finding that the
Claimant had asked for Mr Browne to be removed, but that is not the
finding, and so all of this to do with Mr Browne stemming from the meeting
on 17 May as forming a harassment claim in itself is misconceived.
21.
I allowed the adduction of new material in an email of
19 November 2010. Mr De Marco did not dissent from my
dealing with this matter. What it says is this:
“We also had meetings with [the Claimant] in May and June (Paul
and myself) in order to understand her issues and explore how we can best
support her, unfortunately [she] was not happy with this and she made some
noises indicating that this type of meetings were part of harassment and
bullying strategy.
[…]
As a reasonable employer, we are aware of our duty of care and
have been as supportive as we can, unfortunately with Hetal’s attitude we are
down if we do and we are down if we don’t, this of course has been already
stated in our formal responses to the tribunal.”
22.
The value of this email for Mrs Purohit’s case is that it reflects
the understanding of the management as to what the meetings were doing to the
Claimant, and I was minded at the rule 3(10) hearing to allow this matter
to be argued. It does not provide the support that she seeks to draw from it.
It refers to a number of meetings, and what I am here dealing with is the
meeting on 17 May; that was the only meeting, and as a matter of substance
I find nothing in the accounts of that meeting demonstrated by the email
exchanges and the action of the management in setting up the disciplinary
hearing that could give substance to a claim that the meeting itself was
harassment. In any event that claim was not made in the claim form and
therefore could not be taken forward. The Judge was correct in his approach to
each of those allegations.
Conclusion
23.
I appreciate that today I have taken a different view from the
provisional view I took, which of course was based upon hearing only
Mr Purohit, and I indicated that this matter should be sent to a preliminary
hearing together with submissions of the new material. It seems to me that the
Judge was correct in the decisions he made, or at least in the exercise of his
discretion; it is not right on appeal for this matter to be interfered with.
In those circumstances the appeal is dismissed. I would like to thank
Mr Purohit and Mr De Marco for their help today.
Appeal
24.
An application has been made by Mr Purohit for permission to
appeal. As he knows from his now extensive experience in litigation, grounds
have to be put forward; he is himself legally qualified. No grounds have been.
Being generous to him, I assume they are all the grounds that he put before
me. There is no reasonable prospect of success, and insofar as factual matters
are relied upon the findings of the Bedeau Tribunal about the credibility of
Mrs Purohit would weigh against any further consideration in the courts.
There is no compelling reason for this case now to receive the attention of the
Court of Appeal, and I bear in mind the language of Maurice Kay LJ in Eszias
[2007] IRLR 603 that this is an interim appeal, and the standard for appeal to
the Court of Appeal ought to be higher for such matters, at least in respect of
the discretions involved here. There has already been a trial of the
Claimant’s whole case. Permission is refused.
