SUMMARY
PRACTICE AND PROCEDURE – Case management
DISABILITY DISCRIMINATION – Disability
VICTIMISATION DISCRIMINATION
Detriment
Dismissal
Preliminary hearings by consent
converted to full hearings, since both parties in attendance.
The Employment Tribunal did not err in
refusing an adjournment for the Claimant to provide additional medical
evidence. This was a matter of case management and discretion. Caston
applied.
The Employment Tribunal did not err in
holding the Claimant was not disabled. She had a mental impairment, but it did
not have a substantial adverse effect on her relevant activities.
The Employment Tribunal correctly
found the Claimant was not victimised when it found that a comparator who had
not raised a disability claim would have been treated in the same way. This
approach should have informed the finding in favour of the Claimant of
victimisation, which was set aside and a finding made by the EAT that there was
no discrimination. The award of compensation was set aside.
The finding of unfair dismissal and
compensation was not challenged. Costs orders remain in place.
HIS HONOUR JUDGE McMULLEN
QC
1.
In this case the parties are Miss Rachel Flattley (the
Claimant) and the Cleveland Police Authority (the Respondent). This Judgment
is written partly in the first person singular and partly in the first person
plural because, of the four cases, two are applications under rule 3(10),
ordered to be heard by a Judge alone, and two are appeals to a three-person
Tribunal.
Introduction
2.
The substance of the case is an appeal by the Claimant against the
dismissal of most of her claims relating to disability discrimination, but she
was successful in her claim of unfair dismissal, not the subject of any
challenge by the Respondent. Associated with this is an appeal by the
Respondent against one aspect in which the Claimant succeeded in her claim of
victimisation.
3.
The short description of the case is that the Claimant was a civilian
employed by the Respondent who developed over time a mild anxiety disorder and
on the basis of that contended that she was disabled under the Disability Discrimination Act 1995
(DDA) and, as a consequence of that, she was discriminated against in various
ways by the Respondent.
4.
That short description belies the massive case management that has gone
into the Judgments before us. About a dozen case management hearings were
conducted in order to get this case on the road. The product is a sequence of
Judgments made by the Employment Tribunal under the chairmanship of
Employment Judge Forrest sitting in the north‑east. The first,
which is not appealed, is an application to adjourn, where certain issues were
raised by the Claimant at the outset of her hearing, but the Tribunal decided
to press on without an adjournment.
5.
The second, being the first the subject of an appeal, relates to a
further application made by the Claimant. She has for almost all of the
proceedings that we are aware of been represented by Ms Jane Callan
of counsel, and the Respondent by Mr Colin Bourne. The application
was made on day three of the hearing, when it was sought to introduce new
medical evidence from Dr Mumford, who had not at that stage produced any
report; that application was refused and is the subject of the first appeal.
6.
Thereafter the Employment Tribunal decided on the question of
disability. It had been earmarked as a discrete issue to be tried as a
preliminary point originally; that decision was the subject of a ground of
appeal, but that has fallen away, and so what remains is a Judgment on
disability sent to the parties on 11 May 2012. This is a decision
made on remittal by the Tribunal following the successful appeal to the
Employment Appeal Tribunal presided over by HHJ Peter Clark. The
substance of the appeal before that division of the EAT was said to be a
misdirection on disability, and that aspect of the appeal succeeded so that the
case was remitted to the same Employment Tribunal for a rehearing. It was left
to the Employment Tribunal to decide precisely how to go about this. The appeal
itself had been allowed because the EAT, unusually, applied the principles of Ladd v Marshall [1954] 1 WLR 1489 and admitted fresh medical evidence, and with this fresh
medical evidence the case was remitted for the Tribunal to consider whether the
Claimant was disabled within the statute. It decided not.
7.
The third Judgment – and this is before the three of us now – is the
outcome of the substantive hearing on the Claimant’s claims, which was
conducted over 15 days during 2012 and resulted in a Judgment sent to the
parties on 16 October 2012 running to 53 pages. That is the subject
of a bipartisan attack, the Claimant contending that the three acts of
victimisation that she alleged should have resulted in the same conclusion in
her favour whereas only one was; as to that, the attack is made by the
Respondent that the Tribunal applied the law incorrectly.
8.
In case management of these four matters, I suggested to counsel that
the preliminary hearings that had been ordered by Judge Peter Clark
might usefully be converted into full hearings, since both parties were to be
heard at the hearing and this very old case required urgent consideration, and
very helpfully both counsel agreed. Ms Callan also agreed that at the
3(10) hearings into the first two Judgments Mr Bourne might, if necessary
to help me, be able to make a contribution, and he has done, sparingly.
Reporting
9.
The final matter that has to be dealt with today is an application by
Ms Callan for a restricted reporting order, to which I shall now turn.
The power to make such an order is contained in section 32 of the Employment Tribunals Act 1996,
but, as she accepts, this is not available today, because on an appeal against
an interlocutory decision of an Employment Tribunal that has made an order and
that has not been revoked, the EAT may make an order. In this case, there was
at some stages in the proceedings a restricted reporting order, since this case
relates to disability, but that has lapsed and not been renewed, so the
statutory basis for making the application has fallen away.
10.
Instead, Ms Callan relies upon the provisions of Articles 6 and 8 of the
European Convention on Human Rights, the Claimant’s right to privacy.
The application was limited to the proceedings today, and in the course of the
hearing I ruled that the order should not be made. Mr Bourne contended
there was no basis for the making of the order. I have not heard from the
press about whether or not such an order might be made, which is a relevant
consideration under Article 6, since legal proceedings should be
pronounced in public unless there are reasons.
11.
The Claimant has advanced a broad proposition that her right to privacy
ought to give her the protection of anonymity in these proceedings. I note she
is a seasoned campaigner in the Employment Tribunal, and her name appears on
all of the documents apart from the Judgment of Judge Peter Clark in
the EAT. No strong case was made to us about the reason why the Claimant’s
privacy precluded her being named in these legal proceedings. They are very
old, they have gone on for a long time, there are many Judgments of the
Employment Tribunal, it has occupied the ET for I dare say about 30 or 40 days over
the years, and no compelling case was made to me necessary for the protection
of the Claimant’s privacy in keeping her name undisclosed until the end of the
proceedings. And so, balancing the interests of public justice and the narrow
issue in this case, it seemed to us that the order should be refused.
Rule 3(10)
12.
My approach to applications under rule 3 is found in Cheema v Kumar
UKEATPA/0250/12, and that approach has been approved, for example, in Evans v University of Oxford [2010] EWCA Civ 1240 by the Court of Appeal. The two rule 3
cases follow opinions by HHJ Peter Clark on the sift that they had no
reasonable prospect of success, and so the Claimant exercised her right to have
a reconsideration at an oral hearing, which has been conducted before the three
of us but upon which the only decision is mine.
The legislation
13.
The legislation in this case Disability Discrimination Act 1995 pre‑dates
the Equality Act and provides as follows:
“55 Victimisation
(1) For the purposes of Part 2 […] a person (‘A’) discriminates
against another person (‘B’) if—
(a) he treats B less favourably than
he treats or would treat other persons whose circumstances are the same as B’s,
and
(b) he does so for a reason mentioned
in subsection (2).
(2) The reasons are that—
(a) B has—
(i) brought
proceedings against A or any other person under this Act; or […]
(iv) alleged that A or any other
person has (whether or not the allegation so states) contravened this Act; or
(b) A believes or suspects that B has
done or intends to do any of those things.
(3) Where B is a disabled person, or a person who has had a
disability, the disability in question shall be disregarded in comparing his
circumstances with those of any other person for the purposes of
subsection (1)(a).
(4) Subsection (1) does not apply to treatment of a person
because of an allegation made by him if the allegation was false and not made
in good faith.”
14.
The provision is supplemented with a requirement that the relevant
circumstances of a comparator who was in that legislation necessary actually or
hypothetically to be invoked are the same or not materially different. The
burden of proof applies so that the burden would shift from stage one to stage
two, calling for an explanation from the Respondent if the Claimant has made a
case that could lead to a finding of less favourable treatment on the grounds
of having done a protected act.
The facts
15.
The Claimant began to work in 2004 as liaison and staff officer
assistant. On 2 January 2007 she transferred to the post of alarms
administrator, which was confirmed after a trial period. The Claimant had
hitherto raised a grievance in 2006, and in 2008 the matter was still ongoing.
The Claimant continued to pursue her grievance. There were a number of
hearings about the matter. There were disputes involving the Claimant about
handover arrangements for cover and about the Claimant’s refusal to attend. On
7 November 2008 the Claimant submitted her first claim. She sought
to add further grievances and amendments, and on 15 February 2009 the
Claimant was absent on account of her injury.
16.
The Claimant was due to return to work on 26 March 2009, but
three days earlier, on 23 March 2009, five line managers of her in
the central business unit (CBU) submitted a devastating memo complaining about
her. It was issued, the Tribunal found, because of the Claimant’s imminent
return to work. It is a shocking account of life within that team and the
Claimant’s wholly unreasonable conduct within it. The findings by the Tribunal
about the Claimant’s conduct are extensive and condign. She certainly was a
very difficult person to work with and to manage, particularly in an employment
situation which is hierarchical and depends on a command structure. In this
memo there is a direct reference to the Claimant having issued Tribunal
proceedings and the amount of time that was being taken up managing her and her
concerns. On 26 March 2009 the Claimant was suspended by her civilian
manager Anne Hall.
17.
The memo itself is the substance of the first complaint of less
favourable treatment, and the suspension the second. The Claimant made a
further claim on 5 May 2009, and on 1 February 2010 a
disciplinary hearing ended and the Claimant was notified that her grievances
were dismissed and the Claimant was to be dismissed. She appealed and her
appeals were rejected on 26 March 2010, and a further claim was
submitted to the Employment Tribunal.
18.
Meanwhile, the Claimant was complaining of a mental impairment, which is
the subject of her disability claim. In due course the full records of the
Claimant’s medical history going back to when she was seven months old were
examined by the doctor jointly appointed by the parties on the Tribunal’s
direction, Dr Bradbury, who is a clinical psychiatrist. The gist of the
Claimant’s complaint is that she had MADD by reason of which she was disabled
within the meaning of the statute and that the Respondent had acted unlawfully.
19.
The Tribunal found that the Claimant had done protected acts; there were
nine of them. As Mr Bourne succinctly puts it, one is enough. Everybody
knew that the Claimant was contending she was disabled and that the Respondent
was denying it and that she had made a number of Tribunal claims and raised
issues within the grievance machinery, and this extended over a period of
time. Notably, the Tribunal found that the first serious one of these was the
submission of the claim form in November 2008, and, as we point out, no
unfavourable treatment is alleged by the Claimant for five months thereafter.
Indeed, the contentions the Claimant makes about protected acts go back to the
early part of 2008.
20.
The Tribunal wrung out of the Claimant the three contentions upon which
she relied for her complaints of victimisation – they were the memo, the
suspension and ultimately the dismissal – and the overall contention that she
was unfairly dismissed contrary to section 98 of the Employment Rights Act 1996.
The result was mixed. The Tribunal first addressed itself to the sequence of
questions raised in the Judgment of HHJ Peter Clark and members in HM Prison Service v Ibimidun
[2008] IRLR 940, and they are as follow:
“(1) Did the Claimant do a protected act(s)?
(2) Was he treated less favourably than others who did not do
the protected act(s)?
(3) Was he less favourably treated by reason that he had done
the protected act(s)?
(4) If so, is he nevertheless disqualified for relying on the
victimisation provisions … because the allegations were false and not made in
good faith?”
21.
As the Tribunal pointed out, the Respondent did not rely on the fourth.
The first question the Tribunal asked was whether or not there were protected
acts, and the Tribunal found that there were. It may be noted that immediately
before the first of the two detriments, the memo and the suspension, were the
submission of further particulars, which was the answer to a request relating
to the Claimant’s application to the Tribunal on 19 March 2009.
22.
The Tribunal listed all of the allegations that had been set out in
writing exhaustively, and then there is this:
“111. There was one other potentially significant, operative
protected act, not set out in Mrs Callan’s list in her Skeleton Argument, but
referred to orally in submission, which we accepted. We made a finding above,
in paragraph 59, that ‘at some stage following the CMD (on 22nd
January 2009) Mrs Llewellyn, who was the Force Solicitor representing
the Authority, informed Mrs Borsumato and Mrs Tranter that it appeared likely
that Miss Flattley would be submitting a further Tribunal application’. That
intention of Miss Flattley’s, to make an allegation that the Force had
contravened the DDA, was also a protected act.”
23.
As it happens, this point did occupy quite a large position in the
account, even though it looks like esprit d’escalier. The finding by
the Tribunal was that the three acts relied on as victimisation followed the
submission of the first Tribunal claim in November 2008 and all the
managers were well aware of it. The second question, therefore, was: was the
Claimant treated less favourably than others who did not do the protected act?
Ms Callan accepts that the following direction is correct
(paragraph 114):
“The question is: was Miss Flattley treated less favourably
than a colleague who had behaved in a similar fashion, but had never referred
to health or disability?”
24.
That means that the Tribunal had to ask what the circumstances were of
another colleague, and the Tribunal firmly came to the view that the same
treatment would have been afforded to a person who had not done the protected
act. The Tribunal said this:
“113. We discussed with the Representatives how we should
construct the appropriate, hypothetical comparator. It was agreed that we
should take an employee in the same circumstances as Miss Flattley: an employee
who had commenced employment at the same time, had gone through the same events
in 2005 and 2006, including the same absence from work, and submitting a
grievance about the way she had been treated. The comparator would have the
same anxious personality. The comparator should have behaved in the same way
towards her management and received the identical treatment from them,
including the identical exchanges of e‑mails and so on. The one key difference
is that the comparator would not have complained of her health in such a way as
to indicate that her medical condition might amount to such a disability, nor
would she have ever complained that any treatment she received could have
amounted to a breach of the DDA, in any way, nor of course, would the
comparator have ever submitted complaints to the Employment Tribunal under the
DDA.
114. The question is: was Miss Flattley treated less
favourably than a colleague who had behaved in a similar fashion, but had never
referred to health or disability? If management were faced with the same
situation, an intransigent employee who they were finding it impossible to
manage, it seems to us that management would have composed and submitted the
same memo. They were evidently failing to manage the employee, who was taking
up significant amounts of management time, and causing distress and disruption;
they did not know what to do, and so sought help. The Tribunal claims, the
allegations of discrimination, contributed to the disruption and distress, but
even without them, the memo would still have been sent. On that basis, we will
find that this part of Miss Flattley’s claim for victimisation fails, in
relation to the management memo, since a comparator would have been subjected
to the same unfavourable treatment.”
25.
It did the same in relation to the dismissal. Ms Callan accepts
that the approach of the Tribunal is the same, in that it found that a person
would have been treated no differently from the Claimant who had done the
protected act. The Tribunal said this:
“121. Dismissal is clearly capable of amounting to less
favourable treatment, but we are not persuaded that an employee who had behaved
in a similar fashion to Miss Flattley, but who had never complained of
disability or discrimination, would have been treated any differently.
Following Mr Jackson’s report, and the voluminous evidence available at
the disciplinary hearing, there was strong evidence from which management could
conclude that dismissal was the appropriate sanction. We find that an employee
facing the same allegation, but who had never complained of disability, would
also have been dismissed.
122. Moreover, by that stage, although the disability
discrimination claims were being vigorously litigated, they had little
significance in the disciplinary proceedings. Mr Jackson had expressly
declined to investigate the issues of disability and, although health issues
and the proceedings are referred to at the disciplinary hearing, we find that
Miss Flattley’s protected acts were not a significant factor, to any
degree, for DCC Bonnard when reaching his decision to dismiss. They were
simply crowded out by the positive evidence of misconduct. Miss Flattley
was not dismissed by reason that she had complained of disability discrimination.”
26.
In a slightly out‑of‑order passage the Tribunal then looked
at the reason why; that is, the third question in Ibimidun. But
it is common ground, as the Tribunal says, that this is not necessary for its
decision. The Tribunal went on to deal with the involvement of the Claimant’s
claims and protected acts as a factor in the decisions. In our judgment, the
proper place for this is as auxiliary reasoning not necessary for its
Judgment. It is fair to say that the Tribunal does here arguably make errors in
looking for the principal reason and looking at whether there were significant
contributions by way of protected act to the thinking. But all of that is
irrelevant, because the decision had been made prior to this excursion into the
law. The finding by the Tribunal, for what it is worth, is that the memo was
written by the managers because the managers needed guidance and not by reason
that she brought a Tribunal claim or had done any protected act. So, that is a
firm finding that the reason for the writing of the memo was not the protected
act, and if it were necessary for the decision to have gone to the third stage
of Ibimidun, then that would be sufficient.
27.
As to the second act, suspension, the Tribunal found in favour of the
Claimant, and the firm finding is that the Claimant was making a complaint in
which the disability discrimination was highly significant. The real finding
here is difficult to grasp: it is that the Claimant was treated less favourably
than a person who had not done a protected act, in that she was victimised,
because she was allowed to so misconduct herself as to be on the threshold of
gross misconduct when, had she not raised the disability issue, management
would have acted firmly and robustly to put her in her place at an earlier
stage before risking gross misconduct dismissal and suspension. As we say,
that is a difficult concept, but that is what the Tribunal found; that was the
less favourable treatment.
28.
The Tribunal then considered unfair dismissal and found that the Respondent
had unfairly dismissed the Claimant because of the breakdown and her
misbehaviour. The clear findings are that however many warnings she be given
she was unlikely to improve. The failure to give her a prior warning of what
was coming was unfair, and this rendered the dismissal itself unfair.
29.
The Tribunal then went on to consider whether the Claimant was
responsible for her own dismissal because she was blameworthy, and said this:
“162. In our view, Miss Flattley’s conduct was culpable and
blameworthy to a considerable degree. She seems to have had no conception that
her obligation under the contract of service is to serve: to obey instructions;
that, in exchange for accepting employment and her employer’s salary, she cedes
to her employer the right of control, still a fundamental features of the
employment relationship, even in the 21st century. Of course, that
control, that right to instruct, must be exercised reasonably within the
confines of the contract and the job description, and appropriately, for the
office environment in which Miss Flattley worked. However, the Police
Force is necessarily a disciplined and structured environment.
Miss Flattley, despite advice from Miss McKay and others, never
accepted the discipline. She repeatedly, as we have seen, challenged her
Managers and would not accept their rulings.
163. In our view, she was treated with consideration and
respect; she was shown a degree of tolerance and forbearance far beyond what
many managements could be expected reasonably to show. Indeed, it is precisely
that forbearance that has led us to find her dismissal unfair.
Mrs Borsumato apologised in her evidence for one occasion (see
paragraph 46) when her patience snapped, and she slapped the desk; and
Miss Flattley made her pay for that, citing it repeatedly as an instance
of the bullying she says she was subjected to. It was nothing of the sort; in
the circumstances, Mrs Borsumato’s gesture was moderate, proportionate and
appropriate.
164. We regard Miss Flattley’s behaviour as culpable and
blameworthy […].”
30.
It reduced her compensation by two‑thirds. Prior to that, it
considered whether she would have survived in the environment given her
background and decided that there was only a 20 per cent chance of
her doing it if the employer had gone about things more quickly and in a proper
way; she would not have easily altered her conduct in the course of any number
of disciplinary warnings, and so, as the Tribunal put it, arithmetically for
every £100 lost she would be awarded only £6.66. The Tribunal went on to award
compensation at a remedy hearing in Reasons sent to the parties on
11 January 2013. The order was in respect of victimisation in the
single act of suspending the Claimant; it was for £10,183, and there was a basic
award £633 and a compensatory award after deductions of £4,240.
31.
Thereafter the Tribunal went on to make an award of costs, again sent to
the parties on 11 January 2013. Neither this nor the remedy Judgment
is the subject of a direct appeal. In the costs Judgment the Claimant was
ordered to pay, after review, the sum of £10,000 in connection with the
adjourned PHR and £5,662 in respect of the proceedings issued against the
solicitor to the police force. So, it is common ground that were the appeal to
succeed, the Judgment on remedy would be affected. Mr Bourne submits the
Judgment on costs is regardless of the outcome of these three appeals.
Discussion and conclusions
32.
We turn first to the decision on adjournment. The Tribunal decided that
it would not adjourn the proceedings so that evidence could be called from
Dr Mumford. By this stage of the remitted hearing Dr Bradbury, the
joint expert, had given evidence. The Tribunal declined to allow a further
adjournment. The Tribunal noted that no specific ground was put forward as to
why fresh medical evidence was now required. My attention in the rule 3
hearings was drawn to the indication that the Tribunal might want to reconsider
this matter in the light of an appeal, but the Tribunal considered all of the
medical evidence, gave an account of the long history where the Claimant had
not been forthcoming and co‑operative, and there was no basis for
adjourning. The Tribunal did not know what if any challenge might be involved
to Dr Bradbury’s report; it is fair to say that her report second time
around arrived only days before. But nevertheless the emergency CMD held in
the wake of the EAT Judgment remitting the case indicated that the evidence was
ready to be tried without further medical evidence coming from Dr Mumford.
33.
It is notable that in the second part of this order the Tribunal sets
out to deal with disability as a discrete issue and, although that was a ground
of appeal, it no longer survives. What is noteworthy is that in the second
part there is a classic balancing of all of the factors relating to case
management. A Tribunal will not lightly be overturned by the EAT or the Court
of Appeal in its exercise of case management powers; see the Judgment of
Longmore LJ in Chief Constable of Lincolnshire Police v Caston
[2010] IRLR 327. It is the duty of Tribunals to case‑manage. It decided
– unimpeachably, it appears now – to balance all the factors and to go ahead
with the discrete disability point, and both this and the decision on
adjournment are classic exercises in case management; there is no error of law.
34.
The second issue, which arose for me under the rule 3 hearing, was
the Judgment in relation to disability. The principal argument addressed by
Ms Callan was that the Tribunal had made a finding in the Claimant’s
favour in its first decision, the one overturned by the EAT, and had made a
different decision on remission. I regard this argument as hopeless. The
Tribunal was clearly correct to follow the EAT’s direction and to decide itself
how to handle the matter. It decided as follows:
“8. On the morning of 15 March, we heard submissions from the
parties; neither side wished to adduce further evidence. We outlined to the
parties the approach we proposed to take in consideration of this issue. We
should avoid the approach of consideration the fresh evidence with a view to
seeing whether it caused us to alter any of our previous findings on the
question of disability. Rather, we should revisit the evidence previously
given on the question of disability, by Miss Flattley, Miss Harding,
Mrs Borsumato and Mrs Tranter, and all the medical evidence
previously before us and freshly admitted; and, to the extent that it related
to disability, the more recent evidence from Mrs Borsumato, Ms Davies,
Ms Tranter; and having done that, consider afresh the various questions raised
in consideration of the issue of disability. Both representatives agreed that
that was the appropriate approach; and in preparation for that reconsideration,
we read our notes from the previous hearing, and the witness evidence.”
35.
The Tribunal looked at all of the material going back to the Claimant’s
infancy. There is no challenge to the legal approach it adopted. The evidence
that it had from Dr Bradbury was that there was a mental impairment but at
none of the times which were considered analytically was there a condition
meeting the standards in Schedule 1 to the Act, which is that there was a
substantial effect on the Claimant’s day‑to‑day activities. That
finding is one of measurement, assessment and fact and does not produce any
question of law. In my judgment, the finding is unimpeachable. The sole
dispute relates to paragraph 40, where the Tribunal says this:
“40. More generally, considering the fresh medical evidence, we
share the views of Dr Bradley, recorded in Paragraph 16 above. It is all
of a piece within the medical records we considered previously. There are no
striking acute episodes; no dramatic reports; there is a continuing pattern of
low level concerns and prescriptions. Looking at this overall period, and
considering the fresh medical evidence as part of the total picture, alongside
the previous evidence, we reach the same conclusion as before. Miss Flattley
was not a person with a disability, and her claim for disability discrimination
(save for victimisation) must be dismissed.”
36.
Ms Callan submits that this is a perversity challenge, because
there was in one report in 1999 the word “acute” and so the Tribunal is wrong
to say that. In my judgment, this has to be looked at in context. This is a
report of Dr Bradbury considering all of the medical records. Dr
Bradbury’s account shows a mental impairment but of not sufficient substance,
and a continuing pattern of low‑level concerns and prescriptions. The
fact that the Tribunal records no striking acute episodes indicates that it has
seen the report of Dr Durkan, which does indicate passages from his
report, but the Tribunal was entitled to take as a whole Dr Bradbury’s
opinion; no error of law occurred.
37.
Also in this passage is the basis for the criticism of the Tribunal that
it did not look at whether the condition was likely to recur. In my judgment,
the finding is that the low level of concern is still insubstantial for the
purposes of the statute and that if it were to recur, it would recur at that
level. That is obviously the lesson Dr Bradbury teaches having looked at
the Claimant’s complete record. So I dismiss the application under rule 3(10)
in respect of the adjournment and the disability Judgments, and those matters
will be taken no further. Had the adjournment issue or the disability issue
succeeded, they would have caused the two appeals that I now turn to to be
stayed.
38.
The argument of Ms Callan in respect of the two findings against her
rests on the proposition that the Tribunal did not examine correctly the reason
why. In our judgment, Mr Bourne is correct when he points out that the
finding by the Tribunal as to the comparator is fatal. You do not get past
stage two in the Ibimidun test if you do not show relevant
circumstances. The Tribunal faithfully followed the sequence of decision‑making
set out by the one authority relied upon by Ms Callan for this proposition, Chief
Constable of West Yorkshire Police v Khan [2001] ICR 1065, where the
first question is to look at all the relevant circumstances for the purposes of
the Act.
39.
The second question is whether there is less favourable treatment in
those circumstances, and Lord Nicholls said the following:
“24. The second ingredient in the statutory definition calls for
a comparison between the treatment afforded to the complainant in the relevant
respect with the treatment he affords, or would afford, to other persons 'in
those circumstances'.
25. As appears from my summary of the authorities, different
views have emerged on the correct way to identify the ‘others’, or the
comparators or control group, as they are usually known. One approach is that,
to continue with my example, if an employee is dismissed the control group comprises
the other employees. The complainant was less favourably treated because he
was dismissed and they were not. There may be good reasons for this difference
in treatment but, on this approach, that is a matter to be taken into account
at the third stage when considering why the employer afforded the employee less
favourable treatment. This was the approach adopted in Aziz v Trinity
Street Taxis Ltd [1989] QB 463. It was the approach adopted at all levels in
the present case. Sergeant Khan was treated less favourably than other
employees, because references are normally provided on request and Sergeant
Khan was refused a reference. It was also the approach adopted in Brown v
TNT Express Worldwide (UK) Ltd [2001] ICR 182. […]
27. There are arguments in favour of both approaches. On the
whole I see no sufficient reason for departing from the former approach,
adopted by Slade LJ in the Aziz case: [1989] QB 463, p 483. 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.”
40.
It will be noted that Lord Nicholls then goes on to deal with the
third “by reason that”, and he sets out what is required of a Tribunal to get
into the mind of an alleged discriminator, for he says this:
“29. Contrary to views
sometimes stated, the third ingredient (‘by reason that’) does not raise a
question of causation as that expression is usually understood. Causation is a
slippery word, but normally it is used to describe a legal exercise. From the
many events leading up to the crucial happening, the court selects one or more
of them which the law regards as causative of the happening. Sometimes the
court may look for the ‘operative’ cause, or the 'effective' cause. Sometimes
it may apply a 'but for' approach. For the reasons I sought to explain in Nagarajan
v London Regional Transport [2001] 1 AC 502, 510-512, a causation exercise
of this type is not required either by section 1(1)(a) or section 2. 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 his 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
fact.”
41.
It follows that the Tribunal was literally following the sequence in Khan
upon which it had been addressed in that passage that we have cited under the
heading “The reason why”. It also follows that this was unnecessary for its
decision‑making because the Claimant had failed to show that she was
treated differently from a person who had not done the protected act. That is
expressly in respect of the memo written by the managers. We note that the
same approach we have cited is applied to the dismissal, and so both of these
claims failed by reason of the fact that someone who had behaved as
outrageously as the Claimant would have been the subject of the memo and would
have been dismissed even if she had not done a protected act. This ground of
appeal is dismissed.
42.
We then turn to the appeal by the Respondent in respect of the suspension.
In our judgment, the Tribunal erred in its approach to this. What it did was
to involve itself with the criticism of the failure of management to deal with
the Claimant earlier. This is the reason why the dismissal in its simple sense was
unfair. Management should have acted more quickly to deal with the Claimant in
a firm manner. But, with respect to the Tribunal, it is not faithful to the
way in which the case was put before it.
43.
The primary criticism Mr Bourne makes is that the Tribunal went outside the
directions it had given itself and breached the rule in Chapman v Simon
[1993] EWCA Civ 37 by deciding a matter which was not before it. The principal
claim of the Claimant was that the decision to suspend her, which is the second
act of victimisation relied on, was taken by Anne Hall because of a grievance
she had made in 2006. That was rejected comprehensively by the Employment
Tribunal. What the Tribunal did was to go on to look at a different case that
had not been put to it as to the suspension being on account of the protected
act. That would be sufficient to allow this appeal.
44.
If we are wrong about that, there is force in Mr Bourne’s second
point, which is that the timing of the events is critical. The Claimant was
due to come back to work; on the day she returned, she was suspended. Three
days earlier, the five managers wrote the letter. It is the writing of the
letter at that time that the Tribunal at one stage in its Judgment identifies
correctly as the critical period. Mr Bourne asks rhetorically: what more was
Anne Hall to do faced with this? The connection to the Claimant’s
disability is plain; there is the background, set out in the memo, of the
Claimant’s claims and her reference to her health and, as she put it, her
disability. But the real question is: was the suspension an act of
victimisation for having made that claim? In our judgment, the Tribunal erred
in not identifying clearly the time issue, which was that the Claimant was due
to return to work, and it was that that caused the suspension and not the fact
of her having made the claim. The earlier history as to the giving of warnings
is neither here nor there. It is a good point to make, and the Tribunal makes
it in respect of unfair dismissal, but what is at issue here is the reason for
the suspension and, again, the comparator is a person who had returned to work
following the making of the managers’ comments. In our judgment, this betrays
an error in the approach of the Employment Tribunal.
45.
Given that that is our finding, we canvassed with counsel the likely outcome.
Mr Bourne contends that all the material is here for us to decide;
Ms Callan contends the matter should go back to a, or the, Employment
Tribunal. In our view, it is not necessary to engage in the ping‑pong
between this court and an Employment Tribunal graphically described in Buckland v Bournemouth University [2010] EWCA Civ 121. The application of the correct
test leads to only one answer, and it is of the same character as the other two
findings. To be consistent, all three go together. The Tribunal correctly
dealt with the first and third allegations, and this one should have been dealt
with in the same way.
46.
So, for those reasons, the appeal of the Claimant is dismissed, the
appeal of the Respondent is allowed, and the Judgment on remedy is set aside to
the extent that the awards in paragraphs 1 and 2 are set aside. The
Claimant may have at least some security in knowing that there was no challenge
to the finding of unfair dismissal. We do not know whether that is any
consolation to her; she has been fighting this campaign for a very long time in
a condition that is exacerbated by stress, and we hope that our co‑operative
measures today with counsel have enabled this matter to come to a conclusion
much earlier than it might have done. We would like to thank both counsel very
much for their help today.
