Appeal No. UKEAT/0368/12/DM
UKEAT/0427/12/DM
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX
At
the Tribunal
On
15 February 2013
Before
THE
HONOURABLE MR JUSTICE MITTING
MR D J JENKINS OBE
MR G LEWIS
MR
G BURRELL APPELLANT
MICHELDEVER TYRE SERVICE
LTD RESPONDENT
MICHELDEVER TYRE SERVICE
LTD APPELLANT
MR
G BURRELL RESPONDENT
Transcript of Proceedings
JUDGMENT
SUMMARY
RACE DISCRIMINATION
Inferring discrimination
Detriment
Conduct capable of being racially discriminatory – burden of
proof transferred to employer – whether Employment Tribunal entitled to
conclude it had not been discharged – whether ET also entitled to conclude that
employee was required to change his place of work by reason that he had
undertaken a protected act, raising a grievance about racial harassment and the
manner in which the employer had dealt with it.
THE HONOURABLE MR JUSTICE MITTING
1.
We have two appeals; one brought by the employee and one brought by the
employer. To avoid confusion we shall call the employee the Claimant
throughout and the employer the Respondent throughout.
2.
The Claimant was employed as a tyre-fitter from 11 November 2008 until
he was dismissed on 28 July 2010. The Respondents are a large firm of
tyre-fitters with depots all over the country; two of their depots were at Fareham and Micheldever. Micheldever it seems was the centre of their operation, Fareham an ordinary branch. The Tribunal found that some 40 people were employed at
Micheldever which had a turnover of £10 million. We are told, and it is not
controversial, that some ten people were employed at Fareham.
3.
The Claimant was the only black employee at Fareham. His line manager
was Paul Wright. The foreman was Chris Thompson.
4.
The Respondent’s case was that from the start there was an exchange of
banter between the Claimant and the other white employees of a racial nature.
Their case was that the Claimant gave as good as he got and at least at the
start did not take exception to it. His case was that he had objected to it at
the start. The Tribunal determined that issue against him as they were
entitled to. They found that the Respondent’s account that the Claimant was a
willing participant in those exchanges until September 2009 was right and that
the exchanges up to that time had been fundamentally good natured on all sides.
5.
In September 2009 the position changed. The Claimant complained to Mr
Wright. He called a team meeting for the Fareham employees on 11 September
2009 and made it clear to the whole team in unambiguous terms that there should
in future be no more name calling or abusive remarks, whether or not in jest
between team members. For a short while matters improved but the banter
restarted.
6.
The Tribunal accepted that from the time of the meeting onwards the
Claimant’s attitude to racial and abusive name calling changed. In November
2009 he told Miss Shore, the Respondent’s Human Resources Manager, that he did
not find such language and exchanges funny anymore. Coincidently he had been
off sick with a viral illness. On 3 November he had a return to work interview
with Mr Wright. As the Tribunal pithily put it, it turned into “a return to
work argument”. The Tribunal were far from clear what the cause of the
argument was but were about the outcome: Mr Wright sent the Claimant home. He
then asked whether he would be paid the next day. Miss Shore sensibly arranged
for him to come back to work on 5 November. He made it again clear to Mr
Wright and Darren Godwin, the Local Area Manager, that name calling had become
annoying and was unwelcome. He was told that he could bring a grievance about
it if he wished, which he then declined to do. Four days later Miss Shore wrote to him, reminding him of his right to bring a grievance and telling him
that the Respondent would take seriously any further incidents of name calling
or abuse and would take disciplinary action against anyone responsible.
7.
The Claimant then appears, not for the last time, to have changed his
mind. He submitted a grievance on 11 November. It was focused on the nature
of his suspension by Mr Wright following the argument on 3 November. Later he
wrote to Miss Shore in clear terms on 16 December making it plain that he
complained about a number of matters including bullying, harassment and
discrimination. No steps were then taken to investigate his complaints until
the end of January 2010. The Claimant sent her a chasing letter on 8 February
2010, she then considered his grievance. She wrote him a lengthy outcome
letter on 18 February 2010. By this time the Claimant was again signed off
sick.
8.
In her letter Miss Shore addressed the Claimant’s complaints. She
concluded that the meeting held by Mr Wright in September 2009 (that is the
meeting at which he made it clear that banter and such like was to cease and
would be the subject to disciplinary action if it continued) had been
ineffective and that name calling had continued. She said she believed that
both the Claimant and his colleagues were equally involved in unacceptable
behaviour and that as a result she had decided to take no disciplinary action
but would attempt to deal with the situation informally. She said that she had
spoken to Darren Godwin, the Area Manager, and asked him to hold a meeting at Fareham at which the staff would be told that this type of conduct must cease immediately
and any subsequent breach would result in disciplinary proceedings. The
Tribunal found that there was no evidence that any such meeting as envisaged by
Miss Shore in fact took place. That, as we shall explain, was a significant
finding. The Claimant appealed, as he was entitled, against Miss Shore’s determination. A grievance appeal hearing conducted by Mr Harley took place at
Micheldever on 15 April 2010.
9.
The Claimant appears to have concentrated on procedural questions. Mr
Harley’s decision to was uphold Miss Shore’s determination. He dismissed the
appeal for reasons which are set out in the letter of 24 May 2010. At that
point the grievance procedure came to an end. The Claimant was dissatisfied
with the outcome and submitted the first of his two ET1 forms on 6 April 2010.
Matters then came to a head. On 8 June the Claimant unexpectedly and without
prior warning returned to work at Fareham. There was a dispute about what had
then occurred. The Respondent’s case was that the Claimant had at least made
veiled threats towards some of his colleagues at Fareham by telling others of
his colleagues that “they were in the clear”. The Tribunal was not persuaded
that the Claimant did make veiled threats. On the following day 9 June, the Claimant
was given two weeks paid leave whilst at the Respondent’s suggestion and with
his agreement ACAS were to be involved to try and mediate and resolve the
differences that had arisen.
10.
The Claimant then changed his mind and withdrew his consent to that
initiative which accordingly lapsed. It was not clear to the Tribunal on the
evidence which it heard whether the Claimant ever returned to work thereafter
apart from attending meetings at Micheldever to deal with his case. A second
grievance process appears to have been started although nothing more is said
about that. The Tribunal said that they were inclined to accept that he did
not return to work for more than two days.
11.
On 25 June the Respondent wrote to the Claimant putting forward the
first time a suggestion that he should relocate and come back to work as a
tyre-fitter at their Micheldever site rather than returning to Fareham. There was a meeting on 29 June at which the proposal was discussed. The
Claimant’s reaction was that he wanted to return to Fareham but he would go
away and think about the proposal. On 2 July the Respondent wrote to the
Claimant reiterating their offer and pointing out that there were now two
vacancies at Micheldever; one for a tyre-fitter, the second for a mechanic. The
Claimant would choose which he preferred. The Respondent said that they
believed that his journey to work time and costs would be the same to
Micheldever as to Fareham but if they were more they would subsidise them, and
further that the opportunities at Micheldever in terms of salary, were
significantly better than at Fareham.
12.
There was a further meeting on 13 July at which those proposals were
discussed. The Claimant by that stage was adamant that he would not go Micheldever.
He said he liked working at Fareham.
13.
The Claimant’s terms of employment permitted the Respondent to require
him to work at another work place other than Fareham.
14.
In letter of 15 July they informed the Claimant that they had the
contractual right to relocate him to an alternative work place but they wished
him to go to Micheldever as either a tyre-fitter or a mechanic, at his choice,
but they believed that that was a reasonable request or instruction and if he
continued to refuse it they would consider terminating his employment. They
set out their reason for that request or instruction: a return to Fareham was not a sensible or realistic option given the past history and difficulties
between the Claimant and other employees there and the Respondent’s continuing
duty of care towards all their employees including the Claimant. They proposed
that the relocation should take effect on 21 July. There was a further meeting
on 20 July, the Respondent told the Claimant that moving him rather than his Fareham colleagues to Micheldever was the only practical solution. The Claimant was
adamant that he should return to Fareham and the other staff should be
disciplined and that it was he who was being victimised.
15.
On 21 July the Respondent wrote to the Claimant changing his place of
work from Fareham to Micheldever and telling him that he should attend for work
there from 23 July onwards and that any failure to do so would be treated as a
disciplinary matter likely to lead to dismissal. The Claimant did not come to
work on 23 July but attended another meeting on 28 July at which he was dismissed
by Mr Harley. He exercised his right of internal appeal against that. A Mr
Sawney rejected it and wrote to him on 8 September upholding the decision to
dismiss.
16.
The Claimant brought three complaints before the Employment Tribunal:
first that he had been the victim of direct racial discrimination in the manner
in which the Respondent had dealt with his grievance arising out of the manner
in which he had been treated by his colleagues at Fareham; secondly, he
complained that he had been victimised because he had been dismissed because he
had raised a grievance against that conduct; and, thirdly, that he had been
unfairly dismissed.
17.
The Tribunal analysed first of all how the Respondent had dealt with the
grievance, it reached the following conclusions; first Miss Shore did not seem
to have appreciated that what may have been previously acceptable to the
Claimant was acceptable no longer; secondly, there was a lack of firm, decisive
and effective action such as did occur at other depots to ensure that
unacceptable conduct ceased at Fareham; thirdly, there was no evidence that a
meeting with the Fareham workforce as recommended by Miss Shore had ever taken
place. The Tribunal expressed the view, unsurprisingly that there should have
been clear and unambiguous written instructions to all staff at Fareham to
ensure that such behaviour ceased immediately and that disciplinary action
would follow in the event of any recurrence. The Tribunal concluded that that
did not happen and the objectionable behaviour continued.
18.
Finally, the Tribunal noted that concerns had been expressed by Miss Shore to Mr Harley and Mr Godwin in February 2010 about the incidents at Fareham which
were not acted upon by them. That is a reference to her recommendation to Mr
Godwin in his capacity as Area Manager to convene a meeting at which staff
would be told that this type of conduct must cease immediately and that a
subsequent breach of that instruction would result in disciplinary proceedings.
19.
The Tribunal then addressed itself to the law. It concluded,
uncontroversially as Ms Mayhew for the Respondent accepts, that failing to take
effective action upon the Claimant’s grievance and delaying the process of
dealing with it was conduct which could give rise to the conclusion that in the
absence of an adequate explanation the Respondent had committed an act of
discrimination against the Claimant. In so doing, it correctly directed itself
to section 54A of the Race Relations Act 1976 which provides that in
those circumstances the burden of proof is transferred to the Respondent.
20.
We accept Ms Mayhew’s proper concession that the Tribunal were entitled
on the evidence that we have referred to, to reach that conclusion. They then
asked themselves the correct question, “Whether they have proved that those
flaws and failings are not so attributable”. Their conclusion was that they
did not believe that they had done so. The only explanation offered by the
Respondent was the lack of staff in a small human resources department. They
accepted that that was to some extent understandable and that the delays were
not, “obviously gross” but did state that they would expect an investigation
into such a troubling state of affairs where overtly racist name calling was
admitted and accepted, “to be a top priority of the Respondent” and that it was
not clear that it was. Secondly they concluded, “the lack of managerial action
in such circumstances is both troubling and largely unexplained”. No reason
was given for the failure to take firm and decisive action on or after 5
November 2009. Accordingly, the Employment Tribunal found that claim proved.
21.
Ms Mayhew submits that the Tribunal was not entitled to reach that
conclusion without conducting a detailed analysis of the thought processes of
all involved in the procedural failings. There is, she submits correctly, no
adverse finding against Miss Shore. She draws attention to a recent authority
of this Tribunal, Royal Bank of Scotland Plc v Morris UKEAT/0436/10/MAA
in which on the findings made by the Employment Tribunal about failings in a
disciplinary process within the bank, it held that the Employment Tribunal was
not entitled to conclude that there had been direct discrimination.
22.
All of these cases turn on their particular facts and little assistance
is to be derived from comparing one with another. In this case, the Tribunal
correctly identified that the Respondent had not investigated serious
complaints with the speed and diligence and effectiveness required, and that they
had not taken the steps which had been recommended by the person who did
investigate the grievance, Miss Shore, to ensure that they would not occur
again. They did not call Mr Godwin, the person charged with the task of
enforcing discipline in this respect at Fareham. In those circumstances it is
hardly surprising that the Tribunal concluded that the Respondent had not
discharged the burden cast upon them by section 54A of proving that conduct
which was on its face capable of being discriminatory was not.
23.
The Tribunal was entitled to reach their conclusion and accordingly the
Respondent’s appeal against the first of their findings is dismissed.
24.
The next issue which the Tribunal determined was the victimisation
claim. To our mind, surprisingly, the Tribunal expressed the view that the
issue was, “relatively straightforward”. It cited Chief Constable of West Yorkshire v Khan [2001] ICR 1065 and directed itself in these terms:
“In order to determine whether there has been less favourable
treatment the statute calls for a simple comparison between the treatment
afforded to the complainant who has undertaken the protected act and the
treatment which was or would be afforded to other employees who have not done
the protected act.”
25.
It was common ground that the protected act was the raising of the
grievance. As a bald statement of the law that was inadequate. It is not
sufficient simply to compare what has happened to someone who has undertaken a
protected act with what has not happened to someone who has not. The Tribunal
went on to compound the error by observing:
“The reason or motive for that treatment is immaterial at least
as far as the issue of liability is concerned”
26.
That, with respect to the Tribunal, is a misstatement of the statutory
test as explained in binding case law. Section 2 of the 1976 Act provides:
“(1) A person (“the discriminator”) discriminates
against another person (“the person victimised”) in any circumstances relevant
for the purpose of any provision of this act if he treats the person victimised
less favourably than in those circumstances he treats or would treat other
persons, and does so by reason that the person victimised has …
(c) otherwise done anything under or
by reference to this act in relation to the discriminator or any other person.”
27.
The critical phrase is, “by reason that”. That does require an analysis
of the reason for taking the step said to constitute victimisation, as the
House of Lords unanimously made clear in the case to which the Tribunal was
referred, Chief Constable of West Yorkshire Police v Khan: see
for example the speech of Lord Nicholls at paragraph 29:
“The phrases, “on racial grounds” and, “by reason that” is
different exercise. Why did this alleged discriminator act as he did? What,
consciously or unconsciously, was his reason? Unlike causation this is a
subjective test … Causation is a legal conclusion, the reason why a person
acted as he did is at question of fact.”
28.
It was necessary, therefore, for the Tribunal to ask itself the question
whether or not the less favourable treatment, the requirement to move to
Micheldever, was, “by reason that” the Claimant had undertaken a protected act,
the raising of the grievance. The Tribunal then directed itself to the
conclusion which flowed from the test which it posed:
“Applying that test, it is plain that at least part of the
reason for the Claimant’s proposed relocation from Fareham to Micheldever was
because of his having raised a grievance, the protected act in question, which
involves allegations against his Fareham colleagues. As a result it was
proposed to move the Claimant from his existing place of work whereas his
colleagues who had not raised any such grievance were to remain where they
were. That must, it seems to us, amount to less favourable treatment.
Accordingly, the victimisation claim must succeed.”
29.
To draw the sting from that conclusion, however, the Tribunal went on to
make the following observations:
“We should say at this point for the avoidance of doubt that we
do not find the Respondents actions in proposing to relocate the Claimant to
amount to what is popularly misunderstood as being victimisation in the sense
that the Respondents were only proposing the move in a cynical attempt to try
to get rid of the Claimant. We do not accept that. We do accept that the
Respondents were, to a considerable extent of their own making, in a very
difficult position in the early summer of 2010 in seeking to ensure the
Claimant’s return to work at Fareham and that what they proposed was, we
accept, a reasonable and arguably the best solution that they could come up
with.”
30.
They went on to find that the suggested relocation was neither unfair
nor unreasonable and explained in the passage of their decision that dealt with
the unfair dismissal claim that:
“The great difficulties involved in integrating him back to work
at Fareham and the risks involved in so doing for both the Claimant and his
colleagues, it was reasonable for the Respondents to seek to relocate the
Claimant rather than his colleagues given both the numbers involved and where
they all lived at another depot.”
31.
And further that:
“The alternatives the Claimant put forward of either relocating
all the staff at Fareham involved or dismissing them were, we find, not
reasonable”
32.
Mr Hinton, who appears today for the Claimant and who represented him at
the latter stages of the hearing below accepts that there is nothing in the
other findings made by the Tribunal to support or justify the conclusion that:
“At least part of the reason for the Claimant’s proposed
relocation from Fareham to Micheldever was because of his having raised a
grievance which involved allegations against his Fareham colleagues.”
33.
It seems to us that on the clear findings of the Tribunal made in
relation to the history as to how matters had got to where they ended up and as
to the lack of any realistic alternative to relocating the Claimant from
Fareham to Micheldever, that far from the raising of the grievance having been
in the minds of anyone responsible for the decision to require him to relocate,
it played no part in it.
34.
The history which we have recited demonstrates that matters came to a
head a fortnight after the grievance had finally been resolved by Mr Harley on
8 June 2010 when the Claimant unexpectedly and without prior warning returned
to work at Fareham. That gave rise to the sensible decision by the Respondent
to require him to take two weeks’ fully paid absence and to involve ACAS in an
attempt to resolve the differences which had arisen. It is only after the
Claimant has withdrawn his consent to that initiative that the Respondent first
made the proposal that he should relocate to Micheldever which they did by
letter of 25 June. That proposal was, as the Tribunal found, a reasonable one and,
indeed, arguably the best solution to the problem which had arisen. We are,
therefore, driven to the conclusion that there was no foundation in the
evidence for the Tribunal’s conclusion that it was the raising of the grievance
which formed at least part of the reason for the proposed relocation. If there
is no evidence upon which such conclusion can be based and if it flies, as it
does, in the face of the other findings of fact made by the Tribunal then the
Tribunal have made an error of law in reaching the conclusion. We, therefore,
allow the Respondent’s appeal against the second of its findings.
35.
The Claimant appeals against the finding that he was fairly dismissed.
In the light of all that we have said it is self-evident that the Tribunal were
entitled to conclude that the dismissal was fair. Mr Hinton submits that what
set the train of events in motion which lead to dismissal was, as the Tribunal
found and were entitled to find, an act of direct racial discrimination.
Accordingly, he submits that everything that occurs thereafter is tainted by it
and that while in other circumstances it may have been reasonable for the
Respondent to treat the Claimant’s refusal to relocate to Micheldever as
sufficient to justify his dismissal, in the particular circumstances it was
not. That was a matter of judgement for the Tribunal; it made no error of law
in reaching the conclusion that it did and we dismiss the Claimant’s appeal
against the third of its findings.
36.
We do not wish, however, to leave the appeal without some concluding
remarks. The fact that there is an undisturbed finding of direct racial
discrimination in favour of the Claimant will require the Tribunal, when
dealing with remedies, to examine the loss which that has caused to him in
consequence.
37.
The fact that he has been fairly dismissed is but a feature of what
occurred to him following upon that direct discrimination. The Tribunal will
have to consider carefully whether or not the Claimant can properly seek
compensation for the period after dismissal. In so doing it will no doubt
consider whether or not he has unreasonably failed to mitigate his loss by
accepting the offer of relocation. All of those are issues for the future. It
does not, however, automatically follow that because the dismissal was fair, so
no compensation can be awarded in respect of any period after it occurred.
These are far from straightforward issues which if not resolved by the parties
by agreement will have to be determined at the remedies hearing by the same
Tribunal as that which heard the liability issues.
38.
For the reasons which we have given, we allow the Respondent’s appeal
against the victimisation finding. We dismiss the Respondent’s appeal against
the finding of direct discrimination. We dismiss the Claimant’s appeal against
the finding that he was fairly dismissed and we remit the matter to the same
Tribunal to consider remedies in respect of the upheld finding of direct
discrimination.
