United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0211/16/BA

 

 

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

 

 

                                                                                                             At the Tribunal

                                                                                                             On 20 January 2017

 

 

 

Before

HER HONOUR JUDGE EADY QC

(SITTING ALONE)

 

 

 

 

 

 

MR M STAPH                                                                                                          APPELLANT

 

 

 

 

 

NORGREN EUROPEAN LOGISTICS COMPANY LTD                                RESPONDENT

 

 

Transcript of Proceedings

 

JUDGMENT

 

 

 

 

 

 

 

 

 

APPEARANCES

 

 

 

 

 

For the Appellant	MR ALASDAIR HENDERSON (of Counsel) Instructed by: Messrs Slater & Gordon (UK) LLP 50-52 Chancery Lane London WC2A 1HL
For the Respondent	MR JULIAN MILFORD (of Counsel) Instructed by: Messrs Norton Rose Fulbright LLP 3 More London Riverside London SE1 2AQ

 

 

SUMMARY

RACE DISCRIMINATION

PRACTICE AND PROCEDURE - Appellate jurisdiction/reasons/Burns-Barke

 

Direct race discrimination - constructive dismissal

Adequacy of reasons

The Claimant made complaints of direct race discrimination and harassment, complaining of some 48 separate matters but also claiming that these discriminatory acts had amounted to an unlawfully discriminatory constructive dismissal.

The ET considered each of the separate allegations of discrimination, rejecting the Claimant’s complaints both taken individually and cumulatively.  It failed, however, to expressly address the complaint of discriminatory constructive dismissal in its original reasoned Judgment.  On the Claimant’s subsequent application for reconsideration, the ET clarified that it had rejected the complaint of discriminatory constructive dismissal, based on its dismissal of the individual matters relied on as the basis for that dismissal (viewed both individually and as a cumulative whole).

On the Claimant’s appeal

Held: dismissing the appeal

The ET had correctly considered the Claimant’s complaints of unlawful discrimination, taken separately but also viewed as a whole, and had permissibly rejected his claims of direct discrimination and harassment.  It had failed to expressly address the separate claim of constructive discriminatory dismissal in its original Judgment but it had made good that omission in its response to the Claimant’s reconsideration application.  In clarifying that it had rejected the discriminatory dismissal claim as based on allegations of discrimination that the ET had comprehensively rejected, the ET had provided adequate reasons so that the Claimant might understand why he had lost.  It had, further, adopted a permissible approach to the claim of constructive discriminatory dismissal given the way the Claimant’s case had been put.

 

HER HONOUR JUDGE EADY QC

 

1.                  In this Judgment I refer to the parties as the Claimant and Respondent, as below.  This is the Full Hearing of the Claimant’s appeal against a Judgment of the Birmingham Employment Tribunal (Employment Judge Findlay sitting with Mr Parvin and Mrs Wegg over some ten days in September 2015, with an additional day in chambers; “the ET”), sent to the parties on 19 October 2015, comprising some 72 pages.  Both parties were represented by counsel below, although Mr Henderson did not then appear - he started to represent the Claimant on this appeal at the earlier Rule 3(10) Hearing on 20 July 2016, at which I was persuaded to permit this matter to proceed to a Full Hearing.  I did so on the basis that it was reasonably arguable that the ET, in rejecting the Claimant’s claims of race discrimination and harassment, had erred in law or given inadequate reasons in failing to address his claim of having suffered direct race discrimination in his constructive dismissal.  I dismissed his other grounds of appeal.

 

The Background Facts

2.                  The Respondent is one of three divisions of IMI plc, a global engineering and manufacturing business, based in Birmingham.  The Claimant is black and of African origin; he is a qualified accountant with past experience as an IT Director and Chief Information Officer (“CIO”) and in high-level consultancy roles, in particular in the IT sector.  In or about May 2013 the Claimant was approached to act as the Respondent’s CIO, having previously worked for it for a short period as interim IT Director in 2008.  He accepted the role, working in that capacity from 30 September 2013 until his resignation on 5 March 2015.

 

3.                  It was the Claimant’s case that there had been a series of incidents between October 2013 and 27 March 2015 that had led to a gradual erosion of his role and responsibilities and had undermined his authority in the business; he considered he had been subjected to direct race discrimination and harassment such that he had been constructively dismissed.  He lodged his ET claim the day before his resignation.

 

4.                  At an earlier Preliminary Hearing, on 6 May 2015, before Employment Judge Dimbylow, the Claimant clarified that he was not complaining of constructive unfair dismissal - he did not have the required two years’ service - but was claiming discriminatory constructive dismissal.  He was directed to provide a Scott Schedule, detailing his complaints, to:

“1.1. … include any matters the claimant relies upon in relation to the element of constructive unfair dismissal which forms part of the direct discrimination claim.”

 

5.                  The Claimant duly served a Scott Schedule in which he set out 48 separate allegations of discrimination, some of which he relied on as acts of direct race discrimination only, others as both direct race discrimination and harassment.  The ET made findings on each of the 48 allegations made by the Claimant, rejecting his claims in respect of each.  Having considered each allegation separately, in its conclusions, the ET then stood back to consider whether any aspect of the Claimant’s case of race discrimination or harassment was made out but concluded that it was not.  The ET observed that, although the Claimant might have had an arguable claim of constructive unfair dismissal had he had two years’ service, it was concerned only with complaints of direct race discrimination and harassment; these were not made out, either separately or cumulatively, the ET concluding:

“6.102. [For] the reasons set out above, the claimant’s allegations of direct discrimination because of race and of harassment do not succeed.  Having reached conclusions on the individual allegations we reflected upon whether there was anything about our conclusions as a whole which would cause us to change our minds, but we did not consider that there was.  In particular, although Mr Colgan and Mr Mockler [have] been named by the claimant as perpetrators of discrimination in respect of many of the allegations, in fact their direct contact with the claimant was extremely limited, and we have not seen any evidence which would suggest that either of them were influenced by the claimant’s race or behaved at firstly [sic] towards him for reasons related to his race.

6.103. So far as Mr Rickard is concerned, we do not consider that he was adversely influenced by the claimant’s race, or treated the claimant adversely for reasons related to his race.  His initial comments about the claimant, in relation to the claimant’s 2013 to 2014 bonus, were favourable, and we have seen that he defended the claimant where he thought others, including Paul Rushton, were acting so as to undermine the claimant.  He told Mr Morgan that he considered the claimant to be a talented individual.  To summarise, although Mr Rickard could be blunt on occasions, and became irritated with the claimant because the claimant brought a grievance in October 2015, we accept that, as Mr Rickard told Mr Mockler, he had, if anything, been protective towards the claimant up until that point.

6.104. In particular, he had tried to explain to the claimant why it would be in his own best interests to develop a good working relationship with Mr Sharp and Mr Rushton rather than appear to obstruct them, and he did not take action against the claimant on the occasions in February and March 2014 when the claimant effectively went over Mr Rickard’s head by circulating the IT/IS strategy priorities and seeking to obtain a bonus for Mike Elliott when both he and Mr Miller had previously said no.  The claimant had not given Mr Rickard a proper opportunity to discuss matters with him or even to respond to the e-mails on either occasion.

6.105. There is no evidence from which we could conclude that any of the alleged perpetrators applied racial stereotyping to the claimant, and the actual comparators named by the claimant were not appropriate.  Given our factual conclusions, the limitation points raised by the respondent do not arise for determination.”

 

6.                  The Claimant subsequently applied to the ET for reconsideration, specifically to address his complaint of constructive dismissal, but that was refused in a further Judgment, sent out on 20 November 2015, in which the ET, relevantly, stated:

“1.9. … The tribunal was well aware of the claimant’s complaint under section 39(2)(c), but found no direct (or any other kind) of discrimination within the meaning of the Act, so that the claim that discrimination was effected by this means was bound to fail.  This rejection of the section 13 claim put an end to any claim that the means by which the discrimination was effected was by dismissing the claimant - there simply was no discrimination.”

 

The Relevant Legal Principles

7.                  This appeal concerns the Claimant’s claim of direct race discrimination in what he says was his constructive dismissal; an act of direct discrimination as defined by section 13 Equality Act 2010 (“EqA”), which would be rendered unlawful by reason of section 39(2)(c) of that Act.  Although the Claimant was not complaining of constructive unfair dismissal pursuant to section 98 of the Employment Rights Act 1996 (“ERA”) - he did not have sufficient service to do so - dismissal for the purposes of section 39(2)(c) EqA similarly expressly includes constructive dismissal (see section 39(7)(b) EqA). 

 

8.                  The Claimant’s case of constructive discriminatory dismissal was not put on the basis of a single breach but as a last straw case.  In the context of constructive unfair dismissal claims it has been clarified that would mean that the repudiatory conduct relied on might consist of a series of acts or incidents - some of them perhaps quite trivial - that, cumulatively, amount to a repudiatory breach of the implied term of trust and confidence (see per Neill LJ in Lewis v Motorworld Garages [1985] IRLR 465 at page 468).  In such a case, the breach of the implied obligation to maintain trust and confidence may consist of a series of actions on the part of the employer that cumulatively amount to a breach of the term, although each individual incident may not do so; in particular, the last action of the employer that leads to the employee leaving need not of itself be a breach of contract.  The question is: does the cumulative series of acts taken together amount to a breach of the implied term?  See per Glidewell LJ in Lewis at page 469, and also see the Court of Appeal’s further guidance on this point in Omilaju v London Borough of Waltham Forest [2005] IRLR 35.

 

9.                  In the present case, however, the Claimant was not merely relying on a series of actions that together might amount to a breach of the implied term of trust and confidence; he was going further and relying on those actions as acts of unlawful discrimination.  He contended that, because he was forced to resign as a result of these various acts of unlawful discrimination, this amounted to a discriminatory constructive dismissal. 

 

10.              Where a Claimant relies on a number of individual incidents as acts of unlawful discrimination - and, here, the Claimant had made 48 separate allegations - an ET will need to consider each matter individually but will also need to be astute not to thereby miss the overall picture; stepping back and viewing the accumulation of incidents may present a very different perspective as to what was really happening (see for example the guidance to that effect provided by Mummery J (as he then was) in Qureshi v London Borough of Newham [1991] IRLR 264 EAT, cited with approval by the Court of Appeal in Rihal v London Borough of Ealing [2004] IRLR 642).  The need for such an approach may be all the more required where the treatment complained of might have been because of unconscious or subconscious discrimination (and see the observations of Kerr J to that effect in Geller v Yeshurun Hebrew Congregation [2016] ICR 1028 EAT at paragraphs 49 to 52).

 

11.              As for the requirement on an ET in respect of its reasoning, that is set out by Rule 62 of the ET Rules 2013, contained in Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.  Specifically, at Rule 62(5) it is provided that:

“In the case of a judgment the reasons shall: identify the issues which the Tribunal has determined, state the findings of fact made in relation to those issues, concisely identify the relevant law, and state how that law has been applied to those findings in order to decide the issues.  Where the judgment includes a financial award the reasons shall identify, by means of a table or otherwise, how the amount to be paid has been calculated.”

 

12.              Rule 62 does not, however, provide a straitjacket for ETs; the requirement is for an ET to substantially comply with that Rule.  The Reasons provided should be sufficient for the parties to be able to understand why it was that they won or lost (see Meek v City of Birmingham District Council [1987] IRLR 250 CA), bearing in mind that the Reasons will be directed primarily towards parties who know in detail the arguments and issues in dispute and do not need those details to be spelled out as might be required if the Reasons were directed solely towards strangers (Derby Specialist Fabrication Ltd v Burton [2001] ICR 833 EAT). 

 

13.              Where a party considers that an ET has failed to deal with a particular issue in its reasoned Judgment, in the first instance the appropriate course is to ask the ET - utilising the reconsideration procedure - to amplify its reasoning (Bansi v Alpha Flight Services [2007] ICR 308 EAT at paragraph 22; May v Greenwich Council UKEAT/0102/10 at paragraph 9).  Where an ET has duly responded to such a request, any subsequent elucidation that it thus provides should be read alongside the original reasoning when determining any later adequacy of reasons appeal; that must follow from the approach directed in cases such as Bansi and also from the Burns v Royal Mail Group plc [2004] IRLR 425 EAT / Barke v SEETEC Business Technology Centre Ltd [2005] IRLR 633 CA procedure.

 

14.              The absence of express findings or conclusions on one or more than one specific area of complaint will not, however, amount to an automatic ground of successful appeal; a complainant must show that the failure to give reasons was material such that the absence of reasons gives rise to an error of law or unsustainable factual conclusion (Royle v Greater Manchester Police Authority [2007] ICR 281 EAT, at paragraph 28).

 

Submissions

The Claimant’s Case

15.              On behalf of the Claimant, it was observed that his case of discriminatory constructive dismissal had always been put as the accumulation of a series of incidents that, taken together, amounted to a repudiatory breach of his contract of employment; it was never a case of a single breach but a last straw case (specifically, see paragraph 31 of the grounds of complaint attached to his form ET1).  In particular, the Claimant had emphasised the failure to deal adequately with his grievance: that was the last straw, albeit that the grievance had not been expressly referenced in his Scott Schedule.

 

16.              More than that, the essence of the Claimant’s case was always that he had felt pushed out; it had all culminated in his constructive dismissal, and that focus to his complaint had been recognised at the earlier Preliminary Hearing before Employment Judge Dimbylow.  The problem identified on the appeal was that the ET at the Full Merits Hearing had lost sight of that focus; it had failed to see the wood for the trees and had thus failed to address the crux of the Claimant’s complaint.  The ET had needed to look at all of the relevant matters and incidents complained of and assess whether, cumulatively, there had been a breach of contract by the Respondent (see the EAT’s judgment in Omilaju at paragraph 14, cited at paragraph 12 of the Court of Appeal’s judgment; there had been no challenge to that particular direction).  If so, the ET then needed to consider whether that cumulative repudiatory breach was discriminatory, asking whether the facts taken as a whole evidenced any unconscious or subconscious discrimination (see Geller at paragraphs 49 to 52).

 

17.              In the present case, the ET had failed to consider whether there had been a cumulative repudiatory breach and if so whether that was discriminatory on an unconscious or subconscious level.  Although the ET - in its decision on the Claimant’s reconsideration application - had relied on the rejection of the Claimant’s individual allegations of direct race discrimination and harassment, it was wrong to conclude that it inevitably followed that there was no constructive dismissal.  The nature of a last straw constructive dismissal was that each of the matters complained of would not of itself amount to a repudiatory breach of contract but taken together would do.  By analogy, in a case where the complaint was of a last straw discriminatory constructive dismissal, although specific incidents might be satisfactorily explained by the Respondent such that an ET was not persuaded that they were individually discriminatory, taken together they might be so.  It was, however, not an answer to rely on the ET’s observation at paragraph 6.102 that it did not consider that there was anything about its conclusions taken as a whole that would cause them to change their minds.  That was not approaching the case as one of constructive dismissal and did not demonstrate that the ET had turned its mind to the need to consider the cumulative effect of the matters complained of.  The ET was, rather, considering whether or not to revisit any of its conclusions on the individual complaints of direct race discrimination and harassment in the light of its conclusions on other complaints, not whether the overall course of conduct was discriminatory.  Moreover, the ET’s further reflection at paragraph 6.102 did not demonstrate it had considered the possibility of subconscious or unconscious discrimination; the additional step identified in Geller.

 

18.              Alternatively, the ET’s reasoning was simply inadequate for the Claimant to know why he had lost on his complaint of constructive dismissal.  There was no reasoning on this aspect of the case.  Accepting that a reasons challenge could only succeed if the failure to give reasons was material, i.e. the absence of reason gave rise to an error of law or unsustainable factual conclusion (see Royal), this was a case where the absence of reasoning indeed gave rise to such an error of law.  The ET had acknowledged that had the Claimant been employed for two years he may well have had a claim for constructive unfair dismissal under section 98 ERA, and although others not of the Claimant’s race were also pushed out by the Respondent that had been in circumstances where the employees had entered into compromise agreements.  Given this context, the ET’s failure to explain why the Claimant’s last straw constructive dismissal complaint did not succeed was a serious one, and the ET’s defective reasoning was not made good on the reconsideration.  First, its decision on that application merely defended its earlier reasoning; it added nothing more.  Secondly, it was wrong to say, as the ET did at paragraph 1.4, that there was nothing outside the matters referred to in the Scott Schedule; that was incorrect, given that the Claimant had expressly referred to the grievance in his ET1, albeit he had not himself raised the point in his reconsideration application.

 

 

 

The Respondent’s Case

19.              For the Respondent, it was contended that the ET had not failed to address the Claimant’s complaint of discriminatory constructive dismissal; it had properly addressed that complaint as particularised in the Scott Schedule.  The nature of the complaint was that the Respondent had treated the Claimant in a discriminatory fashion amounting to a repudiatory breach of contract as a result of which he had resigned.  The ET had expressly rejected all of the Claimant’s allegations of discrimination, finding the Respondent did not discriminate against him in any way.  His complaint of discriminatory constructive dismissal therefore fell away as a matter of inevitable logic.  The ET explicitly explained this position, to the extent it was not already clear, in its rejection of the Claimant’s application for reconsideration.

 

20.              The question whether or not an act amounts to unlawful discrimination, and the need to view a series of acts both individually and cumulatively, was different to the exercise an ET had to undertake when assessing whether or not there was a repudiatory breach of contract.  On a discrimination case, the ET should - and in this case did - consider both the acts complained of individually and cumulatively to see whether there was unlawful discrimination.  If it had done so and concluded that there was not, the simple fact that a number of matters had been the subject of a complaint could not simply by aggregation establish discriminatory conduct. 

 

21.              Moreover, if there had been any failure to give proper reasons by the ET, it would not be such as to properly give rise to the basis of a successful appeal: a ‘reasons’ appeal was only entitled to succeed where the failure to give reasons suggested, or was capable of suggesting, that the ET had erred in law or reached an unsustainable finding of fact.  Here, the only possible conclusion on the ET’s unchallengeable findings of fact was that the Claimant’s alleged dismissal was not discriminatory.  Specifically, the Claimant knew that his allegations of discrimination were solely those in the Scott Schedule and thus that his claim of discriminatory constructive dismissal was founded upon those acts and stood or fell with the ET’s findings on the Scott Schedule complaints.  If there were any gaps in the ET’s reasoning, they had been filled by the clarification on the reconsideration application, the ET explaining that it had indeed considered the claim of discriminatory constructive dismissal but rejected it on the basis that there was no discriminatory treatment of the Claimant whatsoever.

 

22.              The ET very much kept its focus on the Claimant’s case that he was pushed out of his employment, in particular by the Respondent bringing in another employee (Mr Morgan) and as to how the Respondent had responded to his complaints and grievances in that regard (see the ET’s findings on allegations 32 to 48 of the Scott Schedule); that was in keeping with how the Claimant’s case had been pursued below by his then counsel.  There had been no separate reliance on any allegations concerning the Claimant’s grievance save to the extent specified in the Scott Schedule, which had in fact included his complaints relevant to the handling of his grievance.  In the alternative, even if the Claimant’s appeal were to succeed, the appropriate course would be for the EAT to so hold but to itself dismiss his claim, as that would be the inevitable logic of the ET’s primary findings.

 

Discussion and Conclusions

23.              The Claimant’s claims before the ET had expressly included a complaint of discriminatory constructive dismissal.  That had been identified at an earlier Preliminary Hearing but was not identified and addressed explicitly and separately in the conclusions of the ET in its Judgment after the Full Merits Hearing.  The question on this appeal was whether this gave rise to an error of law, either because the ET had failed to address part of the claim before it or because it had failed to provide adequate reasons for its conclusion on that complaint.

24.              The Claimant’s constructive dismissal case had been clarified after the earlier Preliminary Hearing; the Scott Schedule he then lodged made clear his constructive dismissal case was put on the basis of the 48 individual allegations of discrimination on which he also relied as separate acts of unlawful discrimination.  At this hearing Mr Henderson has sought to make something of the Claimant’s reference to the Respondent’s handling of his grievance as a last straw in the grounds attached to his ET1.  I am satisfied, however, that the Claimant thereafter particularised how he was putting his complaint in that respect in the form of the individual allegations set out in the Scott Schedule, in particular from allegations 32 to 48.  As he had been directed, he had thereby stated his case as to the matters on which he relied as giving rise to his discriminatory constructive dismissal.  There was nothing more, and, to be fair, before this hearing the Claimant had not suggested there was.

 

25.              Returning to the ET’s Judgment, it was expressly recognised that the way the Claimant was treated during his employment with the Respondent might have been such as to give rise to a constructive unfair dismissal had the Claimant had sufficient continuous service to bring such a claim.  The Claimant relies on this as supporting his case: even if the individual acts on which he relied as instances of direct race discrimination and harassment were not found to have been made out, they could still have amounted to a discriminatory constructive dismissal.  After all - as he observes - where a Claimant in a constructive unfair dismissal case relies on the accumulation of matters as giving rise to a last straw constructive dismissal, the individual matters do not themselves have to amount to actual repudiatory breaches of contract; it is sufficient that the cumulative effect does so (see, for example, Omilaju).  More particularly, he submits, it is necessary for the ET to not only consider the individual acts complained of but to also step back and consider the cumulative picture to determine whether there is in fact any taint of unconscious or subconscious discrimination.

26.              I can see some force in those submissions.  I can accept that it would indeed have amounted to an error of law if the ET had rejected each of the 48 individual allegations of race discrimination, detriment and harassment but failed then to step back to consider the whole picture created from the cumulative detail.  That is not to say that an accumulation of incidents, none of which constitute individual acts of unlawful discrimination, can give rise to a finding of discrimination simply by weight of numbers.  That is obviously not so.  That said, the cumulative picture can provide a different perspective, and that is all the more likely to be useful to the ET where there is a possibility of unconscious or subconscious discrimination.

 

27.              On the present appeal, however, the answer to this point is that the ET in fact did precisely that: having considered each of the individual matters complained of, it stood back and asked itself whether there was anything about its conclusions as a whole that would cause it to take a different view (ET Reasons, paragraph 6.102).  I am satisfied that at that stage, as it had in fact done when considering the allegations individually, the ET was considering whether there might be any taint of discrimination, whether or not it was consciously so.  I have some sympathy for the Claimant’s objection that even then the ET did not expressly state it was considering this question in the light of the claim of discriminatory constructive dismissal; that, however, was to be implicitly understood: the parties knew that the Claimant’s complaint in that regard was founded solely upon the 48 allegations set out in the Scott Schedule.

 

28.              That is not to say that the ET’s failure to expressly address the discriminatory constructive dismissal claim should escape censure.  Failing to explicitly address a separate head of claim could, and did, give rise to the complaint that it had been overlooked.  That failing, however, was made good by the ET when addressing the Claimant’s (properly made) application for reconsideration, when it made explicit that which before had been implicit, that it had considered the claim of discriminatory constructive dismissal but had concluded it was not made out, the incidents relied on as the basis for that claim having been rejected whether considered individually or cumulatively.

 

29.              Thus the ET’s findings on the allegations set out in the Claimant’s Scott Schedule, on which he had relied for his claim of discriminatory constructive dismissal, were the answer to his appeal.  Although the ET had omitted to specifically refer to the discriminatory dismissal complaint, the parties would have understood that this was dependent upon the underlying allegations of discrimination that the ET had rejected, not just considering them individually but also viewing them collectively, as a whole.  Moreover, the ET had made clear its reasoning in this regard when earlier rejecting the Claimant’s application for reconsideration.  Read as a whole, the explanation provided was adequate for the Claimant to understand why he had lost.  The appeal must therefore be dismissed.