United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR WILLIAM MACKENZIE (Representative) Croner Consulting (Litigation Department) Croner House Wheatfield Way Hinckley LE10 1YG
For the Respondent	MR L R T OGILVY (Representative) Ogilvy & Ogilvie Associates 253 McLeod Road London SE2 0YJ


 


SUMMARY

VICTIMISATION DISCRIMINATION – Protected disclosure

Employment Tribunal, by a majority decision, found that the First Respondent had committed an act of racial victimisation against the Claimant and awarded the Claimant compensation including interest in the sum of £4,021.67 for injury to feelings. Appeal allowed on basis findings of fact made by majority that the First Respondent had failed to properly investigate allegations of victimisation and race discrimination perverse. EAT agreed with view of the Employment Judge set out in his minority judgment. In addition the majority misapplied the law as it relates to victimisation. Failure by ET to explain basis on which conclusions reached.


 


THE HONOURABLE MR JUSTICE SUPPERSTONE

Introduction

1. This is an appeal against the decision of an Employment Tribunal sitting at Ashford and sent to the parties on 27 June 2011 insofar as it relates to the decision of the majority of that Tribunal that the First Respondent committed an act of racial victimisation against the Claimant and the Claimant be awarded compensation, including interest, in the sum of £4,021.67 for injury to feelings. The Claimant cross-appealed against the dismissal by the Tribunal of claims of racial discrimination and harassment against the First Respondent and the dismissal of claims of racial discrimination, harassment and victimisation against the Second Respondent. On 22 May 2012 HHJ David Richardson dismissed the cross appeal.

The facts

2. The essential facts are set out at paragraphs 10 to 23 of the Tribunal's decision. The Claimant commenced employment with the First Respondent on 21 February 2005. In March 2007 she commenced her role as a support manager at Bromley as part of a scheme called Bromley Support Housing (BSH). She is of black African origin. Her line manager, the Second Respondent, was white, as were all her other colleagues in the Bromley office. BSH is a supported housing project providing support and accommodation for homeless people. In 2008, the Claimant presented a claim of race discrimination against the First Respondent to an Employment Tribunal. The First Respondent accepted that this was a protected act for the purposes of the Race Relations Act 1976.
3. On 24 March 2010, the Claimant made an allegation of race discrimination against the Second Respondent at a grievance meeting. The First Respondent accepted that this was also a protected act. On 21 September 2009, the Claimant presented a written grievance to Mr Prendergast regarding a meeting on 14 August 2009 to which she was not invited but at which matters relating to her responsibilities were discussed and decisions were made upon them. She also complained about the lack of prior consultation in respect of matters discussed at a further meeting on 18 August 2009. On 23 November 2009, an incident occurred while the Claimant was absent on leave; a burglary took place at the Respondents' premises and it was alleged the two members of staff who were line managed by the Claimant had failed to follow proper procedures. The Claimant dealt with the matter on her return to work by an informal discussion with them during their quarterly performance reviews. Later however, without informing the Claimant, Mr Prendergast, on the advice of Human Resources, appointed an independent manager, Mark Foster, to investigate the incident.
4. On 29 January 2010, Mr Prendergast attended a meeting with officers from the London Borough of Bromley Council to discuss failings within the operation of BSH. Management of the scheme was criticised, the Claimant was mentioned by name and her management was specifically criticised. Following the meeting, Mr Prendergast met with the Claimant on 15 February 2010 and informed her that he and Mr Nightall had decided in view of the Council's critical comments that she was to be transferred from Bromley to the Dartford office. Hannah Hatch, the BSH property manager, was also to be transferred although she was at this time absent on sick leave. Mark Foster and Joan O'Beirne were brought in as relief managers to replace them. On the same day, 15 February 2010, the Claimant went absent on sick leave and never returned to work.
5. On 22 February 2010, the Claimant lodged a further written grievance complaining of her treatment by Mr Prendergast. On 5 March 2010, while at home on sick leave, the Claimant was informed in an email that she was suspended following allegations of gross misconduct. That suspension was confirmed in a letter dated 11 March 2010 which contained details of alleged abuse of position, failure to follow procedures, failure to follow management instructions, obstruction and serious acts of negligence regarding the running of BSH. On the same date, 11 March 2010, Hannah Hatch was also suspended by means of a similar letter. On 24 March 2010, the Claimant attended a grievance meeting with Mr Nightall regarding her grievance lodged on 22 February 2010. At this meeting she produced a statement in which she complained, amongst other things, of race discrimination by Mr Prendergast, including victimisation as a result of the 2008 Employment Tribunal complaint.
6. On 23 April 2010, Mr Nightall wrote to the Claimant confirming his decision that her grievances had not been upheld. On 12 May 2010, the Claimant presented a complaint of race discrimination to the Employment Tribunal. In May 2010, the Claimant attended a formal investigation meeting regarding the matters for which she had been suspended.
7. On 6 July 2010, the Claimant attended a grievance appeal meeting with Derek Caren. The outcome of that appeal was notified to her in a letter dated 28 July 2010. Her appeal was refused and Mr Nightall's decision was upheld. On 6 September 2010, the Claimant presented a second complaint of race discrimination to the Employment Tribunal regarding the handling of her grievance.
8. At a case management discussion held on 25 January 2011, the issues between the parties were identified and by Order dated 1 February 2011, Employment Judge Wallis set out at paragraph 3 of the Order the issues for the Tribunal. The only issues material to this appeal are issues 3.9 and 3.10. They are as follows:

"3.9 Was there a failure to conduct a thorough and objective investigation of the grievance.

3.10 Was there a failure to accept any of the Claimant's grievances;"

9. On the issue at paragraph 3.9, there was a split decision by the Tribunal. Paragraphs 35.2 and 35.3 set out the majority decision:

"35.2 The majority found this fact proved. Mr Nightall and Mr Caren failed to address the complaint by Hannah Hatch of discrimination against the Claimant, including the alleged "bitch" comment as part of their investigation into the Claimant's grievance. Also they both failed to mention in their outcomes that the Claimant had made allegations of race discrimination and victimisation during the grievance hearing on 24 March 2010 or to otherwise suggest that they had given any consideration to this possibility or to conducting further investigation of the same.

35.3 The Tribunal concluded that because the Claimant had done the protected act on 24 March 2010 of complaining about race discrimination added to the protected act in 2008 in complaining to an Employment Tribunal, she was treated less favourably in this respect than a person who had not done such protected acts would have been treated. The less favourable treatment was failing to properly investigate her complaint by not investigating Hannah Hatch's complaints as they related to her complaints and failing to directly address the Claimant's complaints of race discrimination. The complaints had been raised at her grievance and appeal hearings and clearly identify race discrimination as a major issue. At no stage during their investigations or in the decisions did they mention or identify that race discrimination had been investigated which left the Claimant doubting that her complaints had been investigated. They had deliberately failed to properly and thoroughly investigate those matters which might have lent weight to the Claimant's complaints of race discrimination, and the reason for the deliberate failure was the fact of her complaints of race discrimination. The Tribunal found that it was an act of victimisation under section 2 of the Race Relations Act 1976."

10. The minority decision as set out at paragraph 35.4 reads as follows:

"The dissenting decision was that of the Employment Judge. His view was that Hannah Hatch's grievance was not part of the Claimant's grievance, it was eventually withdrawn and she failed to attend a meeting to take it further forward. The reference to the comment of "bitch" had no racial connotations and there was no more basis for Hannah Hatch's complaint of race discrimination against the Claimant and the Claimant's complaint on her own behalf. There was therefore no failure to investigate a relevant matter to her complaint. Additionally, Mr Nightall and Mr Caren did address the issue of less favourable treatment, and that implicitly included addressing the complaint of race discrimination. It was investigated and confirmed in both outcome letters. The Respondent did conduct a thorough and objective investigation into the Claimant's grievances and that part of the Claimant's complaint was not proved."

11. At paragraph 36, the Tribunal dealt with the issue at paragraph 3.10:

"36.1 On the basis of the majority decision above, the failure to properly and thoroughly investigate the grievances resulted in a failure to provide a proper basis for not upholding her grievances. On that basis the Tribunal majority found that 3.10 was an act related to, and part of the act of victimisation.

36.2 On the basis of the minority decision above, there was a proper basis for not upholding the Claimant's grievances, and it was not part of an act of victimisation."

12. Mr Mackenzie, for the First Respondent challenges the decision of the majority on two grounds; first he submits that the decision of the majority was perverse; second he submits that the majority misapplied the law as it relates to victimisation.

The first ground of appeal

13. As for perversity, the material paragraph in the decision of the Tribunal is paragraph 35.2. In that paragraph the findings of the majority are set out and in the next paragraph, paragraph 35.3 the majority's conclusions from those findings are set out. Mr Mackenzie submits that the finding by the majority at paragraph 35.2 that Mr Nightall and Mr Caren failed to address the complaint by Hannah Hatch of discrimination against the Claimant, including the alleged "bitch" comment as part of their investigation into the Claimant's grievance is perverse. The reason it is perverse is because Hannah Hatch's complaints form no part of the Claimant's grievance. The Claimant made no mention of Hannah Hatch's grievance until her grievance appeal meeting on 6 July 2010, then the only matter she raised was the "bitch" comment. Mr Caren dealt with this in his letter to the Claimant dated 28 July 2010 where he notes on page 3 of the letter:

"On the issue raised by your co Manager, Hannah Barry, [Hannah Hatch's maiden name] handed to me at your Grievance Hearing. I took this matter up with the Regional Director, Mr Nightall and asked Mr Prendergast to comment and he responded by saying that he had no recollection of having said or made this comment. The disappointing fact here for me is that this alleged comment was made seven or eight months ago, and is only being raised now to me, the Managing Director. I would ask why this alleged issues was not taken up or raised with the Regional Director or Union Official at the time or discussed with Mr Prendergast back in October 2009."

14. It seems to us that the majority of the Tribunal appear to have overlooked this response by Mr Caren. Mr Ogilvy for the Claimant submits that another complaint made by Hannah Hatch in her grievance that was adopted by the Claimant was the Claimant's exclusion from a meeting some time in August 2009, just before the service validation review by Supporting People. Mr Ogilvy submits that the First Respondent failed to investigate that matter. In fact, it was dealt with by Mr Nightall in his letter of 23 April 2010, see the last paragraph on the second page of the letter, where he concludes he could find no evidence that the Claimant was purposely excluded from the meeting.
15. The Claimant did not raise that issue again at her grievance appeal hearing on 6 July 2010. We agree with the view of the Employment Judge set out in his minority Judgment at paragraph 35.4 that Hannah Hatch's grievance was not part of the Claimant's grievance. Moreover, as the Employment Judge noted Hannah Hatch's grievance was eventually withdrawn and she failed to attend the meeting to take it further forward. Further, as the Employment Judge observed, the reference to the comment of "bitch" had no racial connotations and there was no more basis for Hannah Hatch's complaint of race discrimination against the Claimant than the Claimant's complaint on her own behalf. There was, therefore, no failure to investigate a relevant matter to her complaint.
16. However finally, as we have stated, in fact Mr Caren did deal with this matter in his letter to the Claimant dated 28 July 2010 and Mr Nightall did deal with the other matter about which Hannah Hatch complained that was adopted by the Claimant, namely the exclusion from the meeting, in his letter of 23 April 2010.
17. The only other finding made by the majority, which led to their conclusions that the First Respondent had committed an act of racial victimisation, was the finding at paragraph 35.2 that Mr Nightall and Mr Caren both failed to mention in their outcomes that the Claimant had made allegations of race discrimination and victimisation during the grievance hearing on 24 March 2010 or to otherwise suggest that they had given any consideration to this possibility and to conducting another investigation of the same.
18. At paragraph 35.3, the majority concluded that Mr Nightall and Mr Caren had failed to directly address the Claimant's complaints of race discrimination. In fact, in the Claimant's email dated 22 February 2010 entitled, "Formal Grievance" there is no complaint of race discrimination. In that document the Claimant summarises her grievance as follows:

"In essence therefore, this grievance is ostensibly about the continued failure of my line manager to fully support me in my role as Support Manager, especially through the challenging times of the past 2-3 years. Consequently I feel undervalued, victimised, intimidated and vulnerable whilst at work."

19. It was not until the grievance hearing on 24 March 2010, see notes of the meeting in tab 4 of the bundle at pages 6 to 14, that the Claimant made an allegation of discrimination. Then she did say she was being treated differently and there was racism and victimisation by the Second Respondent, see notes of the meeting at tab 4 at pages 11 and 12.
20. In his letter dated 23 April 2010 to which we have referred, Mr Nightall set out the issues he investigated and concluded as follows:

"Overall, I've been unable to substantiate your claims that you have been treated differently from John's other managers and have been supported less than your peers. I cannot find any evidence of bullying by John."

21. Mr Caren, in his letter dated 28 July 2010, again a letter to which we have referred, following the grievance appeal hearing on 6 July 2010, concluded:

"I do not uphold any aspect of your grievance against John Prendergast in that you have been treated differently or unfairly."

22. The Employment Judge in his minority Judgment at paragraph 35.4 noted:

"Mr Nightall and Mr Caren did address the issue of less favourable treatment, and that implicitly included addressing the complaint of race discrimination. It was investigated and confirmed in both outcome letters. The Respondent did conduct a thorough and objective investigation into the Claimant's grievances and that part of the Claimant's complaint was not proved."

23. We agree; there was no obligation on Mr Nightall and Mr Caren to state in express terms that they rejected the allegations of victimisation and race discrimination. It is clear in our view that they considered those issues raised by the Claimant and the allegations that she made and rejected them. Accordingly we consider the findings of the majority at paragraphs 35.2 and 35.3 of the Tribunal's decision to be perverse.
24. In the light of this conclusion, it is not necessary for us to go on to consider the second ground of appeal; however, we shall do so briefly.

The second ground of appeal

25. The relevant statutory provisions at section 2 and section 54A of the Race Relations Act 1976, the First Respondent accepts that the Claimant made a protected act through her grievance. The correct approach by Lord Nicholls in Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830:

"The statute is to be regarded as calling for a simple comparison between the treatment afforded to the complainant who has done a protected act and the treatment which was or would be afforded to other employees who have not done the protected act."

26. Mr Mackenzie submits that the majority have failed to carry out that comparison exercise, although they state at paragraph 35.3 that she was treated less favourably in this respect than a person who had not done such protected acts would have been treated. No comparator, hypothetical or otherwise, has been identified.
27. Further, the majority has failed to consider properly the issue of motive. Once a comparison exercise has been conducted, it is necessary to consider the question of motive. As Lord Nicholls said at paragraph 29 in Khan:

"The phrases 'on racial grounds' and 'by reason that' denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was the reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of the fact. The motive of the alleged victimiser has to be examined. Were the actions taken in response to the protected act and were they intended subconsciously or not to put the employee making that disclosure at a detriment."

28. At paragraph 35.3 of the Tribunal's decision, the majority made the findings that Mr Nightall and Mr Caren had deliberately failed to properly and thoroughly investigate the Claimant's complaints of racial discrimination which might have lent weight to the Claimant's complaints of race discrimination and the reason for the deliberate failure was the fact of her complaints of race discrimination.
29. Assuming for present purposes, contrary to our view, that the First Respondent deliberately failed properly to investigate the Claimant's complaints of racial discrimination, in our judgment, the majority failed to explain the basis on which they reached their conclusion that the reason for this deliberate failure was the fact of the Claimant's complaints of racial discrimination. We are further of the view that in the absence of a comparator, the majority have failed to explain the basis on which they reached their conclusion that the Claimant was treated less favourably than a person who had not done the protected acts would have been treated.
30. Accordingly, we would also allow the appeal on the basis that the majority misapplied the law as it relates to victimisation.

Conclusion

31. In conclusion, we allow this appeal and having found as we do that the decision of the majority was perverse, there is no question of this case being remitted to a Tribunal for re-determination. The complaint that the First Respondent committed an act of racial victimisation fails and it is dismissed.