Miss S Greaves v North West Ambulance Service NHS Trust and T Kenworthy-Dowdall: 2407259/2021
JUDGMENT
[1]The second respondent continues to be joined to these proceedings.[2]The claimant’s claim is allowed to proceed out of time, on the exercise of the tribunal’s just and equitable discretion.REASONS
Conclusions
[1]Should the second respondent be joined to the claim.[2]Was the claimant’s claim out of time, if so was it just and equitable to extend the time. Witnesses[3]The claimant gave evidence and was cross-examined by the first respondent and the second respondent. There was an agreed bundle. Tribunal’s Findings of Facts The Tribunal’s findings of facts are as follows.[5]The claimant has worked for the respondent since 26 August 2003 and was on modified duties when on 22 January 2021 she was advised by a colleague that the second respondent had made an offensive racist remark about her on 4th or 5th December 2020. The next day the claimant reported the matter to the Section Manager and made it clear she wanted to complain about the matter. She submitted a formal grievance on 23 January 2021[6]On 25 January she spoke to NC her union Branch Secretary, UNITE. The claimant explained that although she was described as a Branch Secretary this was in name only, that NC was the lead officer and did the branch secretary work for both branches in the respondent’s area, the claimant’s role was more akin to being convenor for Greater Manchester UNITE the union.[7]The claimant explained that she had a lot less experience than NC who had been Branch Secretary for six years and she had never been involved in a Tribunal case before. Further that whilst employment rights and going to a Tribunal may have been covered in a shop steward course she had not attended that course for ten years and although she had attended a Branch Secretary’s course more recently it did not cover those issues.[8]On 28 January the second respondent wrote an apology letter to the first respondent “to the investigating officer and whoever it may concern , following the concern raised about inappropriate language I used in the communal area I would like to take this opportunity to apologise, due to the passing of time since the incident and the following complaint I am unable to recall specifically the context in which I used the unacceptable language, however it was never my intention to cause any colleague offence or distress and I can only offer a full unreserved apology, I feel I have let down myself, my colleagues and the Trust I so enjoy working for, I do not dispute the possibility I have used the offensive word, my home life includes two teenage daughters who are in long term relationships with ethnic minority partners, they regularly pay topical rap museum and watch topical stand up colleagues which includes this word, it is quite common for them to use this word to describe themselves in a comedic self-referral fashion due to the popular way it is used within this comedy and music settings however this is no excuse for me to have used it in a work setting and I personally refute any racist connotations as unacceptable and repugnant to me. Therefore I unreservedly apologise to anyone affected and promise to use my best efforts to never use such language again knowing the deep upset and distress it could possibly cause people directly and indirectly”.[9]On 1 February the claimant heard from colleagues that in fact R2 had used the same expression before and by mid-February/early March became aware that this earlier incident had been witnessed by managers.[10]In fact today the claimant advised us that she had in fact heard the use of this term because she had recently spoken to the second respondent who had asked her what she was doing and she had told her she was on a union zoom call. The second respondent then went outside and she overheard her using the offensive word. The claimant went outside to try and find out what had happened but could not find the second respondent and no comments were made by the other people present. However she has since learnt that allegedly a member of management who was there did take the second respondent to one side and warned her about her unacceptable language. She was told that she was never to use that word again but no other action was taken. Because the there had been no reaction from those present she assumed because of the unacceptable nature of the comment made that she must have misheard, she could not believe that if she had heard it that the members of management present outside and her colleagues would not have acted more vigorously.[11]The claimant agreed that she kept in touch with NC throughout this period but that after she referenced a second incident he advised her to speak to GO ,the regional officer,, the claimant accepted that GO advised her of the time limits for a Tribunal, telling her that it was three calendar months less one day, that she could join the second respondent and that she needed to speak to ACAS.[12]The claimant had no recollection of any discussion regarding when that time limit would expire and she assumed that it would run from the date she found out about the comment i.e. 22 January.[13]The claimant also said that in terms of her health she was not in a good place and it was difficult to get motivated, she was taking anti-depressants and was on adjusted duties at the time of the incident. She said she needed’ her head to be in the right space’ in order to progress matters with the Tribunal claim. In relation to ill health she was able to speak to her union officials, present a grievance and communicate with the grievance investigator. There was advice from Occupational health in the bundle which did not suggest she would be unable to engage with the tribunal process although it was obviously not produced specifically to address this issue. Contemporaneous notes said she was getting better in the relevant period.[14]The claimant applied for early conciliation with Acas on 4 April. This was a month after the time limit would have expired based on the originally reported remark being made on 5 December She spoke to ACAS on 4 April and it is the claimant’s evidence that they advised her there was no point in adding the second respondent as in these situations the first respondent would take responsibility for any discrimination. However I do not accept this as practitioners will know that ACAS does not give legal advice, no doubt something was said regarding the issue but the claimant would not have been advised that she need not add the second respondent.[15]The claimant agreed that subsequently she spoke to GO and that he advised her that he thought she should add the second respondent. An ACAS certificate was discharged on 16 May and on 21 May she presented her claim form.[16]It was evident from the claim form that the claimant thought that the relevant date was when she became aware of the comment as she said “I raised the matter with my UNITE regional official … in our discussion I was unsure of the specific time I became aware of the comment and so he advised I commence ACAS EC due to the likely looming limitation. I commenced this on 4 April 2021 (when the limitation would have in fact been 21 April 2021, three months less one day from the date I became aware of the alleged comment namely 22 January 2021). I have provisionally named only my employer as the respondent but hope this can be extended to include the individual concerned TKD in any subsequent proceedings that might be lodged. My employer is yet to conclude his actions and decisions into this matter (which it commenced in late January 2021) and that due to the absence of a critical colleague that any disciplinary action is not now expected to be concluded within the next four weeks (so until that leaves the 14th June which coincidentally around the same time as the ET limitation mindful of the ACAS EC certificate date. I am still waiting the investigation report which was completed approximately the end of April 2021”.[17]The first respondent’s defence was received (ET3) on 25 June. In its ET3 the first respondent indicate it would rely on the reasonable steps defence which allows a respondent to escape liability if they have done everything reasonable to try and ensure such discrimination does not occur. I am not aware of the matters the respondent seeks to rely on but generally it is a high bar, although it would be highly unlikely that if training was undertaken on discrimination the use of offensive racist language was not covered. Of course other issues would arise such as when the training was undertaken and how often. It could possibly be argued by not tackling the alleged first use of the offensive word the first time round ( if that is established)the reasonable steps defence may struggle.[18]Meanwhile the claimant had applied for legal assistance from the union but this had not yet been decided. On 27 July 2021 R2 was dismissed by the respondents in respect of the same incident the claimant complains of.[19]By 24 August 2021 she had been granted legal representation and the legal advice to the claimant was that she needed to add the second respondent and she made an application to do so the next day on 25 August. This was accepted by NW REJ who also stated it would be examined at the subsequent preliminary hearing. The Law Addition of a respondent[20]Under Rule 34 of the Employment Tribunal Rules and Procedure 2013 (the rules) state “under addition/substitution and removal of parties” the Tribunal may under its own initiative or on the application of a party or any other person wishing to become a party add any persons to a party by way of substitution or otherwise if it appears that there are issues between that person and any of the existing parties falling within the jurisdiction of the Tribunal which it is in the interests of justice to have determined in the proceedings and may remove any party apparently wrongly included”.[21]In Vaughn -v- Modality Partnership 2021 EAT the focus should be on the real practical consequences of allowing or refusing the amendment including consideration of the following questions:-a. If the application is refused how severe will the consequences be in terms of the prospect of success of the claim;b. If the application is permitted what would be the practical problems in responding.[22]In Enterprise Liverpool Limited -v- Jonas and Others EAT 2009 the substitution of trade unions for individually named claimants was held by the EAT to be an amendment altering the basis of an existing claim without raising a new head of complaint. The claimant’s counsel described this as a relabelling exercise and stated that this situation was identical to Enterprise Liverpool although Mr Norbury pointed out that in his opinion where a respondent was added this was a different scenario. Applicability of time limits[23]Time limits fall to be considered on or where the amendments seeks to add a brand new course of action, and where an amendment sought is the addition of a respondent. In this case the time limit in respect of the original claim is also an issue.[24]The relevant date for assessing time limits is the date on which the ET1 is first presented, Cocking -v- Sandhurst (Stationers) Limited and another 1974 NIRC affirmed in Ryan -v- Bennington Training Services Limited EAT 2008. However, it has to be emphasised that time limits are just one factor to take into account and that the overall test was the balance of hardship and injustice in all the circumstances. Ladbrooks Racing Limited -v- Trainer EAT 2006 sets down guidance in relation to the timing and manner of the application and Tribunals should consider:-(i) why the application is made at the stage at which it is made and why it was not made earlier i.e. the reason for the delay;(ii) whether the amendment is allowed delay will ensue and whether there are likely to be additional costs because of delay or because of the extent to which the hearing will be lengthened if a new issue is allowed to be raised, particularly if the costs are unlikely to be recovered by the party who incurs them;(iii) whether a delay will put the respondent in a position where evidence relevant to the new issue is no longer available or is of lesser quality than it would have been earlier. Time Limits generally[25]Under Section 123 of the Equality Act 2010 the time limits are for a discrimination claim (subject to Section 140(b) proceedings on a complaint within Section 120 may not be brought after the end of:-(a) a period of three months starting with the date of the act which the complaint relates; or(b) such other period as the Employment Tribunal thinks just and equitable.[26]The discretion under just and equitable is a wide discretion Adedeji -v- University Hospitals Birmingham NHS Foundation Trust 2021, a mechanistic approach should not be adopted, all the factors need to be assessed which are relevant in any particular case. Merits of the claim[27]It is permissible to consider the merits of the claim such as has it got a reasonable prospect of success as referred to in Olayemi -v- Athena Medical Centre EAT 2010. Other Factors[28]Reasonable ignorance of a fact that is crucial or fundamental to a claim will in principle be a circumstance rendering it impracticable for the claimant to present her claim in time, Machine Tool Industry Research Association vs Simpson and Marley (UK) Limited and another -v- Anderson 1996 Court of Appeal. Whilst those cases refer to the not reasonable practicable test they are also relevant to just and equitable. A claim was allowed nine years after the event in a race discrimination claim, London Borough of Suffolk -v- Afolabi 2003 Court of Appeal. In DPP -v- Marshall 1998 reasonable ignorance of one’s rights is a factor which militates in favour of granting an extension of time on a just and equitable basis.[29]A reliance on incorrect legal advice is a relevant factor, militating in favour of the extension of the discretion, in Chohan -v- Derby Law Centre 2004 the advisor was a Trainee Solicitor and the EAT found that the relevant legal point arising was a difficult one and the claimant should not be blamed for the fact their legal advisor “got it wrong”.[30]In addition, a delay caused by awaiting the completion of internal grievance which covered all the allegations militates in favour of granting an extension on just and equitable basis especially where it has resulted in the preservation of evidence, Wells Cathedral School Limited -v- Soot and another EAT 2020.[31]Finally the claimant’s illness may also constitute a relevant factor giving rise to an extension of time on a just and equitable basis, Bosiat – Mansey -vTelefonica UK Limited EAT 2012. Hardship and prejudice[32]It is necessary for the Tribunal to balance the prejudice to the respondent(s) and to the claimant . The Tribunal must not focus on whether the claimant ought to have submitted her claim on time, a Tribunal erred when it refused to grant an extension by failing to consider balance of prejudice, especially in circumstances whereby the Tribunal found that the claimant’s claim would have succeeded but for the limitation bar Szmidt -v- A C Produce Imports Limited EAT 2014 Submissions Claimant[33]The claimant submitted that R2 had already been added to these proceedings and therefore the test should be that that decision was perverse.[34]That the balance of hardship and justice militates in the favour of retaining R2 as a respondent as R2 then stands to escape liability on “technicality”.[35]In respect of the Vaughn questions R1 relies on the reasonable steps defence and whilst the bar is higher in a reasonable steps defence the defence is still available and may result in the first respondent’s escaping liability.[36]That the evidence has been preserved therefore there are no practical problems arising from adding R2, that certainly the second incident was raised with her within weeks of the actual incident, six weeks, and therefore she has a good chance of recalling the actual words used, that there are other witnesses in any event who can give evidence.[37]Nature of the amendment – it is a relabelling as there are no new facts or no new cause of action.[38]Relevance of time limits – if time limits are relevant to adding the second respondent it would be just and equitable to allow the matter out of time and the claimant expressed the desire to include R2 in her proceedings when she first lodged on 21 May. Timing and manner of the application[39]The three reasons for delay.(i) the claimant was a litigant in person, albeit she indicated she wished R2 to be added, that she did not know until the receipt of the R1’s ET3 that the respondents sought to rely on the reasonable steps defence, that she did not receive legal advice assistance until 24 August; and(ii) adding R2 will not result in any delay in the proceedings and the length of the hearing is unlikely to be affected.(iii) cogency of the evidence. The evidence has been retained by the respondent, the addition R2 would increase the cogency of the evidence as she has vital evidence to present to the Tribunal. Merits[40]The case against R2 is strong, while she now seeks to deny that she used racist terms her apology letter and contemporaneous statements of the witnesses shows that there is a strong case. Time Limits (B)[41]On the balance of prejudice firmly militates in favour of extending time in the claimant’s favour. Ignorance of Fact[42]It is not in dispute that the claimant did not know about the racist term being used until 22 January 2021 and she raised it the next day. Ongoing Grievance[43]It is entirely appropriate for the claimant to raise a complaint first and the fact that the respondents delay in addressing the claimant’s concerns contributed to the delay in the claimant seeking external resolution. Ignorance of rights time limits[44]The claimant was told there was a time limit of three months less one day on 29 March 2021 but it was her understanding this ran from when she heard about the complaint, it is not unusual that a litigant in person would make this mistake. It is not a straightforward legal question Chohan.[45]Regarding the claimant’s status as a Union Official her evidence was that she had not been involved in Tribunal proceedings before, she did not recall receiving training on Employment Tribunal time limits, that the only specific training there might have been that she might have attended was ten years previously. Ill Health[46]The evidence shows that the claimant was not well at the time, she had high blood pressure, impaired sleep, work related stress and anxiety and was taking anti-depressants. Balance of prejudice[47]Regarding the balance of prejudice, there is no prejudice to R1, it has retained all its records, it made a full investigation of the incident. It has its own evidence regarding the reasonable steps defence.[48]Prejudice to R2. There is prejudice to R2 in that she will have to respond to a claim that she was unaware of until August but she has responded to in the investigation. She has brought an unfair dismissal claim and therefore her own evidence will be in play in that claim.[49]Prejudice to the claimant. The claimant may be left without a remedy if the reasonable steps defence succeeds but it is also important that the claimant has a remedy against the actual person who used the most appallingly racist term against her and who she worked with for many many months following the first racist terminology unaware that she was working with somebody who would use that word to describe her. First Respondents Submissions Re-joining the second respondent.[50]The second respondent needs to show that REJ Franey’s decision to add her was a perverse decision as the actions had already been taken.[51]If the respondent’s reasonable steps defence succeeds the claimant will be left without any remedy. Time Limits[52]The reason the claimant was late submitting her claim boils down to the claimant’s mistaken belief that the time limit would run from the date she discovered about the racist incident rather than from the actual incident itself. She agreed that she had advice regarding the time limit on the 29 March and she made no further effort to discover how the time limit operated.[53]In respect of her health the entry in OH notes in February 2021 said she felt better and in March the occupational health report did not say that she was suffering from a lack of motivation or mentioned that she had been prescribed anti-depressants or that it was affecting her communication ability, she had been able to contact ACAS subsequently to this, therefore the first respondents submitted that her health was not the reason for her delay.[54]From her position as a Trade Unionist she understood she had an actionable ride of discrimination and that such remark would be considered race discrimination.[55]She knew all the facts on the 22 January and it was incumbent upon her to make further enquiries, likewise, regarding the time limits she made no further enquiry. The union itself had a website with legal summaries on and a helpline that she could have rung to ascertain the correct time limit. She knew on 29 March that there was a time limit of three months and yet still delayed for five to six days before approaching ACAS. In respect of prejudice and hardship there was prejudice to the respondent in having to meet the claim, when the claimant had failed to comply with the Tribunal’s requirements. Second respondent submissions[56]The second respondent submitted that substituting a claimant as in the Enterprise case was entirely different from adding a respondent. The respondent would be unaware of the claim until the date the application was made and there were a number of things that might prejudice the respondent in that situation such as for example, poor recollection of what occurred or the failure to keep relevant documents.[57]The claimant was aware from the 29 March that she could add the second respondent as a respondent and relies on the advice allegedly given by ACAS when the situation is (assuming general knowledge of people using the Tribunal system) that ACAS did not give advice in these terms. In any event, the claimant was then given different advice she advised by GO that she should add the second respondent and she was fully aware of this as she flagged this up in her claim form but still did not make any application to add the second respondent until she received legal advice over two months later. The claimant chose not to name the second respondent.[58]In respect of merits the second respondent submitted that the words were not admitted and the apology did not comprise of admission of using the actual expressions referred to. Even by the end of January it would be difficult for the second respondent to recall what was said on the 4th or 5th December, particularly when the context that she was given at the time of the investigation was erroneous, i.e. she was told it was in a mess room when in fact it was in an ambulance with only the person she spoke to.[59]In respect of hardship there would be massive hardship on the second respondent, she would have to now look to obtain and pay for legal representation for at least a three-day hearing. If she had known the claimant was contemplating bringing a claim she may well have taken a different view of the disciplinary hearing but the disciplinary hearing took place before the claimant sought to add her as a second respondent. In the event that the respondent’s reasonable steps defence succeeds, the claimant will be the only person to which any remedies hearing could be made and the financial burden of that on top of having to pay for a lawyer is a massive prejudice to the claimant who has nothing else to gain from this litigation compared to the claimant.[60]The claimant has a reasonable case against the first respondent and the bar for a reasonable steps defence is very high, therefore it is not correct to say that there is a high likelihood that she will fail against the first respondent. If the other parties want the second respondent to give evidence they can seek a Witness Order. Conclusions[61]This was not an easy case to decide the submissions of all parties were excellent and thorough and the second respondent was particularly ably represented by Mr Norbury’s compelling and eloquent submissions. Adding the second respondent[62]On balance I have decided that it is correct to add the second respondent. I have not approached this on perversity grounds but on first principles.[63]The reasons for my decision is that until August the claimant was a litigant in person, whilst it is disappointing that the lay union officials including the claimant herself had limited knowledge it is not determinative. There is often a negative view taken of naming individuals in tribunal and a preference to rely on the employer. This is the reality and it is not based solely on financial considerations. Possibly it is felt that the employer should have made their policies clearer or that until proven that the individuals did something discriminatory it is rather harsh for that the individuals who may not have been aware of the right behaviours .Whatever the reasons although I did not accept that Acas would have advised the claimant not to add the second respondent it is something that is often said – that the respondent will take responsibility, so why add the individual and increase the personal element ( particularly if both parties are still employed);and the employer is a ‘better bet’ to pay any compensation.[64]However this is not the case here as the reasonable steps defence is relied on. and the claimant would not have known this until the first respondent’s grounds of resistance were received on or around 25 June 2021 that they were intending to rely on the reasonable steps defence. So even though the possibility was raised with her by GO in March they were early days and the claimant would not be aware of why it might be more important than not to add the individual.[65]Neither would I expect a litigant in person to really grasp the significance of a reasonable steps defence contention before obtaining legal advice which was not available until 24 August 2021. The claimant then acted quickly making an application the next day[66]In addition the claimant had flagged up the possibility of adding the second respondent in her claim form in May, although this of course would not be known to the second respondent so she had no advance knowledge and the tribunal on receipt would not step into the arena and advise the claimant to issue against the second respondent in case she became out of time or for any other reason.[67]I therefore do not count the issues of timing against the claimant in respect of the addition of the second respondent. It was only 3 months after she issued proceedings and 2 months after the second respondent had been dismissed by the first respondent.[68]This also is relevant to the practical issues, having just dealt with a case where a respondent was added a year late and where all the relevant personnel had left and were not contactable, I appreciate what a real problem this can be however in this case the second respondent had been involved only recently in a disciplinary where she would have had to make her position clear so it is not a persuasive argument that it is now so long ago that the second respondent will not be able to remember. Neither is she been asked to remember anything complex, it is one word, a well-known offensive word, which she is alleged to have used twice. Accordingly, I cannot see that the passage of time will have had a necessarily negative effect on the second respondent’s ability to remember what she said. In any event that would be apparent when she was first asked about it and certainly by the time of the letter of apology. What she said will also be recorded in the disciplinary hearing.[69]In addition the second respondent brings her own claim of unfair dismissal.[70]Accordingly I find no practical difficulties of the type envisioned in Vaughan arise.[71]Finally considering the hardship question again this is not so obvious as in many cases as here the claimant has another claim. It is relevant that the first respondent is relying on the reasonable steps defence, it is true also that is a high bar to overcome by the first respondent. However there is a risk there to the claimant and she could suffer hardship. there is also always hardship to a respondent in these or similar amendment situations but where there is no particular hardship ( such as no witnesses being still employed) the prejudice is still greater to the claimant.[72]The hardship here is that an individual is involved rather than a corporation. However if parliament had intended tribunals to consider the greater difficulty an individual is in they would have set out the relevant provisions differently. Neither is there any case law which directs me to treat an individual more favourably or even reflects that proposition. Whilst Mr Norbury says it is absurd to allow a claimant to add a party as a result of the contents of a response form that is precisely what happens everyday in the tribunal, often at the behest of the tribunal itself where there is a TUPE transfer for example or an agency agreement involved.[73]Accordingly, on balance I have decided that the second respondent should be added to the proceedings. Time limits generally[74]The claim is that the second respondent used a racially offensive word about the claimant in July (probably) and then 4 or 5 December 2020. the claimant gave new evidence at the Tribunal that in July she thought she had heard the second respondent use this word but then thought she had misheard due to the lack of reaction from the other people present outside. Nevertheless the issue is that the second incident was on 4/5 December 2020 at the latest and the claimant went to ACAS on 4 April 2021 so at best she is one month out of time with that incident. Obviously with the earlier incident she is further out of time.[75]The claimant’s reason for the delay is that she thought time would run from when she heard about the incidents, the December one she heard about on 22nd January 2021 and the earlier one after that date. Whilst this is incorrect legally it has long been accepted and established in case law that these are acceptable reasons for being late and the proper approach is to consider whether that factor is a good reason for exercising the just and equitable discretion, particularly in a case where a claimant did not then act as quickly as possible. Here there were approximately 2 and half months before the claimant went to ACAS after the January information . Again this was based on her erroneous assumption, not corrected by any of the union officials that the 3 months ran from when she heard about the incident (s). On this basis she would be in time.[76]I find it is a reasonable error for a litigant in person to make – sadly it is made time and time again. The correct position is that a claim should be brought as soon as possible where someone learns about an earlier incident which means they are already out of time or if in time by the relevant date which would have been the 4 March 2021.The claimant was therefore 1 month late in seeking conciliation from ACAS.[77]In respect of the earlier incident this was not brought to her attention at the time and therefore the same considerations apply as above and there is a prospect that the claimant could establish continuous conduct given the allegation of two incidents using the same word.[78]I also find it entirely reasonable of the claimant to raise the matter internally first before considering going to tribunal. Although by itself it would not be enough.[79]I do not find the claimant was so ill as to be unable to understand what advice she was being given or unable to progress matters with the tribunal.[80]As referred to above the prejudice to the claimant in not being able to pursue this matter and seek some compensation ( not just financial) outweighs that to the respondents who have been aware of the issues throughout. I also refer to the factors I have taken into consideration in relation to the joining of the second respondent, above.[81]Accordingly, I also exercise my just and equitable discretion to allow this claim out of time.Background
[1]The claim of harassment contrary to the provisions of section 26 Equality Act 2010 as against the second respondent is upheld[2]The claim of direct discrimination because of race contrary to the provisions of section 13 Equality Act 2010 as against the second respondent is dismissed[3]All claims as against the first respondent are dismissed[4]The matter is listed for a Remedy Hearing on 20 March 2023[1]The claimant presented an ET1 Claim Form on 21 May 2021 alleging "race discrimination". This was initially registered only naming the first respondent as a respondent to the proceedings but a subsequent application to add the second respondent was accepted by Regional Employment Judge Franey, albeit subject to such decision being examined at a subsequent Preliminary Hearing[2]The matter came before the Employment Tribunal at a Preliminary Hearing on 22 December 2021 ("the first PH"). The matter was listed for a Final Hearing and also for a further Preliminary Hearing to consider: 2.1. The objections to the adding of the second respondent which took place on 6 September 2021; and 2.2. Whether the claims against the first and second respondents are out of time and, if so, should time be extended on the basis of the just and equitable discretion[3]The matter accordingly came back before the Tribunal by way of further Preliminary Hearing on 9 February 2022 ("the second PH")[4]At the second PH, the judgment of the Tribunal was: 4.1. The second respondent continues to be joined to these proceedings 4.2. The claimant's claim is allowed to proceed out of time, on the exercise of the Tribunal's just and equitable discretion[5]The claims concern allegations of an offensive and racist term being used by the second respondent with reference to the claimant (who describes herself as being of black African/Caribbean descent or origin) on two separate occasions, namely in or about July 2020 and in or about December 2020. Given the offensive nature of the term allegedly used, it was agreed by all participating in the hearing that the term would be referred to as "the n-word" and this practice is continued within this JudgmentIssues
[6]The second respondent's position in summary is that she may have used the n-word in or about July 2020 but not in the manner alleged and not directed towards or in reference to the claimant. She denies using the n-word as alleged in or about December 2020. She denies all claims accordingly[7]The first respondent's position is that it accepts the allegations of the n-word having been used by the second respondent on both occasions but relies upon the statutory reasonable steps defence[8]The issues arising were discussed and agreed at the first PH. These were discussed at the outset of the Hearing and distilled further within the parties' closing submissions as the following: Harassment (section 26 Equality Act 2010) Did the second respondent use the n-word in reference to the claimant in or about July 2020 and/or in or about December 2020? Direct Discrimination (section 13 Equality Act 2010) This claim is pursued only in the alternative, in the event that the claim or claims of harassment fail Statutory defence (section 109(4) Equality Act 2010) In the event that the claim or claims are well-founded, did the first respondent take all reasonable steps to prevent [the conduct] of the second respondent?[9]The Tribunal records that at the conclusion of the claimant's evidence the second respondent's representative made an application for the claims to be struck out on the basis that there was no case to answer. This application was objected to on behalf of the claimant and rejected by the Tribunal. The Tribunal noted that it should only be in exceptional and very clear circumstances that such an application, particularly in the context of a discrimination claim, should succeed. In summary, the Tribunal was satisfied that there had been sufficient evidence produced to it on behalf of the claimant such that the Tribunal should proceed to hear the respondents' evidence before any final Judgment was reached Facts[10]The parties had agreed a bundle of documents and references to numbered pages in this Judgment are to pages as numbered within such bundle. The bundle originally comprised 405 pages but this was increased to 436 pages by the addition of supplementary documents by the first respondent which was not objected to by the other parties[11]The claimant gave evidence on her own behalf. Her representative also tendered a written statement from Ms Laura Herbert. Ms Herbert did not give oral evidence before the Tribunal and accordingly this evidence was not given on oath nor was it able to be subject to cross-examination. The witness statement in fact references a further statement made as part of the first respondent's internal investigation (pages 82 – 83). In the circumstances, the claimant's representative accepted that very little weight could properly be attached to such evidence[12]The first respondent called a total of four witnesses to give evidence: Mr Anthony Davies, Senior Paramedic; Mr Jason Shaw, Senior Paramedic Team Leader; Mr Malcolm Saunders, Operations Manager; and Ms Joanne Jones, Human Resources Business Partner[13]The second respondent gave evidence on her own behalf[14]The Tribunal came to its conclusions on the following facts, limited to those relevant to the issues, on the balance of probabilities, having considered all of the evidence before it, both oral and documentary General[15]The first respondent is an Ambulance Trust with a workforce of approximately 6,900[16]Both the claimant and the second respondent were employed by the first respondent at Oldham Ambulance Station. They had in fact known each other since their teenage years[17]The claimant commenced her employment with the first respondent in or about 2003 and most recently has held the post of paramedic. She has also, for a number of years, performed the role of Branch Secretary for Unite although not as a full-time Officer[18]The second respondent commenced her employment with the first respondent in or about 2005, most recently holding the post of Emergency Medical Technician 1. She was dismissed from her post in or about July 2021[19]The chronology is somewhat intertwined but the Tribunal has sought to untangle the individual aspects of the matter in setting out its factual findings July 2020 incidentThe Law
[20]Reference to this allegation emerged in the course of the first respondent's internal investigation into the December 2020 incident[21]On or about 1 July 2020, a number of senior staff were together in the courtyard of the Oldham Ambulance Station. The group comprised Mr Jason Shaw and Mr Malcolm Saunders, together with two other senior paramedic team leaders, Ms Kelly Barton and Mr Allan Green. This was at about 3pm, at the end of a shift[22]Mr Shaw's evidence is that the second respondent came out of the Station into the rear yard where the group was seated and approached them. As she approached, she said to the group "what's that [n-word] been doing all day". Mr Shaw took this to be a reference to the claimant who had been on alternative duties that day, which had been the subject of comment on other occasions by the second respondent. The claimant was the only black member of staff on duty that day. Mr Shaw informed the second respondent that she should not be using such language and that it should not be repeated[23]Upon reflection that night, he considered that the second respondent's conduct required to be followed up and he spoke to her again about it the following day. He recalls the second respondent "playing the comment down", saying that it was only made in jest and that she did not really mean it. Mr Shaw reiterated to the second respondent that the use of that word was unacceptable and racist and that it should not be used again. He believed that this was a one-off incident that would not be repeated and was accordingly content to leave matters there. He did however notify his line-manager, Mr Malcolm Saunders, of his actions[24]Mr Saunders gave similar evidence. He could not recall the exact words used but remembers the second respondent using the n-word and, although the claimant was not specifically named, this was by way of reference to the claimant (who was the only black person working at the Oldham Station that day) and her being on alternative duties that day[25]Mr Saunders describes all present as being "shocked and flabbergasted" at the second respondent's use of the n-word. He noted that Mr Shaw admonished the second respondent[26]The following day, Mr Shaw told him that he (Mr Shaw) had reinforced the message to the second respondent as to the unacceptability of the use of the n-word. The second respondent had also spoken with him that day confirming the further discussion with Mr Shaw[27]Mr Saunders felt that the incident had been appropriately dealt with at that stage and considered the issue closed on the basis that there would be no repeat[28]The second respondent's evidence was that she did recall the incident in July 2020 and that Mr Shaw had spoken to her concerning her use of the n-word. She does not recall any suggestion that the term was used with reference to the claimant[29]She believes that she may have used the word when engaged in a telephone call with a member of her family, namely her daughter's boyfriend who she describes as Afro-Caribbean, it being a word that is used by her and others in her home setting[30]There is accordingly a clear conflict of evidence to be determined by the Tribunal. The Tribunal concludes that there is no reason to doubt the direct evidence of Mr Shaw and Mr Saunders. There is no reason evident to the Tribunal why these witnesses should in any way seek to fabricate their evidence which was clearly and consistently given. It is also consistent with the statements they gave to the internal investigation (Mr Shaw's statement is at pages 101 – 102, Mr Saunders' statement is at pages 107 – 108) and those statements given also by the others present (Ms Kelly Barton at pages 103 – 104 and Mr Allan Green at pages 105 – 106)[31]The explanation given by the second respondent is inherently improbable. The evidence of Mr Shaw and Mr Saunders is that the second respondent was speaking directly to the group, not passing by them whilst on a telephone call. The wider context of the use of the word (a specific reference to alternative duties) also contradicts the version of events put forward by the second respondent. The evidence is that no such explanation was put forward by the second respondent contemporaneously[32]In all the circumstances, the Tribunal's conclusion on the evidence before it is that the allegation is made out and the second respondent did use the n-word with reference to the claimant on this occasion[33]There is a further factual issue for the Tribunal to determine also in relation to this incident, namely the claimant's awareness of the word being used. In the submission of the claimant's representative, "whether it was also heard by [the claimant] is irrelevant to the question of whether or not it happened", but the question is potentially relevant to remedy[34]The claimant's evidence is that she was on a conference call in an office facing the yard when she thought she heard the use of the n-word by the second respondent. She came out into the yard and noticed that a number of senior members of staff were present. She assumed that if the term had been used there would have been more reaction from those present and accordingly concluded she must have misheard. When, arising out of the internal investigation, she became aware of the evidence of those present, she realised that she had not misheard and had in fact heard the use of the n-word by the second respondent[35]The evidence of Mr Shaw and Mr Saunders is that the claimant did not at any point come into the yard at the relevant time and they were satisfied that she had left the site earlier[36]There is again therefore a direct contradiction in the evidence. The Tribunal again prefers the evidence of Mr Shaw and Mr Saunders. As stated, their evidence was clear and consistent. It is inherently improbable that the claimant, particularly given her role of Branch Secretary, believing she had heard a colleague use the n-word, would not pursue the matter but simply assume she must have misheard. The evidence of Mr Shaw – which was not challenged – was that he had spoken with the claimant after the December allegation arose and the claimant advised him she had been unaware of the July incident (see paragraph 10 of Mr Shaw's statement). This was in fact accepted by the claimant in the course of cross-examination. The Tribunal notes that in her statement given to the internal investigation on 6 February 2021 (pages 84 – 88) the claimant is asked (at page 87): "Other than the occasion LH has spoken to you about, are you aware of any other occasion where [the second respondent] has said something that might be considered racist/discriminatory?" The claimant in her reply makes no reference to the July incident[37]The Tribunal accordingly finds that the use of the n-word in the July incident was not known to the claimant until it was brought to her attention following the internal investigation. In terms of timing, the claimant's evidence was that she first learned of the July incident after the dismissal of the second respondent in July 2021 December 2020 incident[38]It was this alleged incident that gave rise to the internal investigation referred to above[39]The evidence of the claimant is that, on or about 22 January 2022, she was approached by a colleague, Ms Laura Herbert to ask how she was doing. The claimant replied that she had lodged a "Dignity at Work" grievance which named the second respondent (this document is at pages 57 – 58) but does not make any allegation of racist behaviour. Ms Herbert went on to disclose to the claimant that when she had been sharing an ambulance with the second respondent on a day early in December 2021, the second respondent had referred to the claimant as "that [n-word]"[40]The claimant reported this allegation to Ms Jones-Roberts (Sector Manager). Ms Jones-Roberts asked whether Ms Herbert would be prepared to put the allegation in writing and she did so, at the request of the claimant, by email dated 25 January 2021 (page 405)[41]This was then accepted as a formal complaint by the claimant and the internal investigation commenced[42]The starting point for the internal investigation was a meeting held on 27 January between Mr Saunders and the second respondent. Mr Saunders had prepared a document entitled "Initial Assessment and Risk Management" (page 59) which, according to his evidence, he went through with the second respondent to explain to her what was being investigated. It sets out as "Background Details" the following: "An allegation of racist language has been submitted against [the second respondent]. The allegation is that on the 3rd or 4th of December 2020 in Oldham station mess room, [the second respondent] in front of Oldham staff members (not in [the claimant's] presence) used racial language in referring to [the claimant]. Namely, whilst referring to [the claimant] used the phrase "that [n- word]" The evidence before the Tribunal as to how this document was compiled in the terms it was, was unclear. Mr Saunders believes he prepared the document having been asked to progress the matter by Ms Jones-Roberts but he could not explain why the allegation is phrased in the way that it is, given that the sole allegation at that stage was that made by Ms Herbert of an incident occurring whilst she was in an ambulance with the second respondent[43]The second respondent subsequently sent an email dated 28 January to Mr Saunders and a Mr James Stone headed "Apology" (page 60). The email states: "Following the concern raised about inappropriate language I used in the communal area I would like to take this opportunity to apologise" It goes on to refer to the passing of time and the possible background for the use of the word but continues: "However, this is no excuse for me to have used it in a work setting and I personally refute any racist connotations as unacceptable and repugnant to me. Therefore, I unreservedly apologise to anybody affected and promise to use my best efforts to never use such language again, knowing the deep upset and distress it could possibly cause people directly and indirectly"[44]The second respondent denies making such a comment as alleged[45]The claimant was not herself present when it is alleged that the n-word was used by the second respondent but it was reported to her by Ms Herbert. The evidence in this respect before the Tribunal is (as referred to above) an unsworn statement by Ms Herbert which in turn refers to the statement she made in the internal investigation (pages 82 – 83 and specifically paragraph 6). This statement clearly sets out the allegation[46]The direct evidence of the second respondent is that she made no such comment. The claimant's representative sought to place great store on the fact (which is not disputed) that, on occasion, in the course of giving her evidence, the second respondent referred to not being able to recall making such a comment – one example being in direct response to her own representative in re-examination. He sought to persuade the Tribunal accordingly that this does not amount to a denial and, therefore, although accepting how little weight should be attached to it, Ms Herbert's statement overrides the second respondent's direct evidence. This argument is rejected by the Tribunal. It is accepted that the second respondent, in giving her evidence, did at times refer to not being able to recall the use of the n-word as alleged in December 2020. The Tribunal's experience however is that such a phrase is often used interchangeably by witnesses by way of denial and it was clear to the Tribunal in the overall assessment of the second respondent's evidence that she was maintaining a denial of having used the n-word as alleged in December 2020[47]The Tribunal noted the second respondent's apology at page 60. This however is clearly not a response to an allegation of having used the n-word by reference to the claimant in an ambulance in December 2020. The allegation put to the second respondent (page 59) specifically refers to it occurring in the "mess room" and the apology itself refers to a comment allegedly having been made in "the communal area" (which the evidence indicates were terms used interchangeably)[48]The claimant's representative urged the Tribunal to give material weight to admissions or concessions by the second respondent's Trade Union representative set out in the record of the internal disciplinary hearing. The second respondent herself was not present and her evidence was that she had given her representative no instructions to make such admissions or concessions. In the circumstances, the Tribunal was not prepared to give that documentation such weight[49]What the Tribunal was faced with in terms of evidence was one person's word against another but with one giving direct evidence to the Tribunal and the other giving evidence only as set out in written statements. The Tribunal did not assess the claimant as a dishonest witness. In all the circumstances, balancing the evidence before it and with particular emphasis on the direct evidence given to the Tribunal under oath and subject to cross-examination, the Tribunal's conclusion on balance is that the second respondent did not use the n-word when alongside Ms Herbert in an ambulance in December 2020 Reasonable steps[50]The first respondent admits, on the basis of the findings of its own internal investigation, that the two incidents of the use of the n-word occurred as alleged. It defends the claims on the basis that it took all reasonable steps to prevent such conduct[51]In addition to the manner in which the July incident was dealt with by the managers concerned, the following facts were brought to the Tribunal's attention in support of this argument[52]All staff of the first respondent receive mandatory training every three years, which includes elements of equality and diversity training and which requires a pass mark of at least 80% to be accepted as completed (see pages 406 – 436). This includes specific reference to "harassment" (page 418). The second respondent most latterly underwent such training in or about May 2019[53]The first respondent has a Dignity at Work Policy (pages 179 – 199). The policy includes a definition of bullying (page 185) and (page 187) states that "bullying and harassment is a breach of the Trust's Disciplinary Rules"[54]The first respondent has a Policy on Equality, Diversity and Inclusion (pages 227 – 240). This outlines the Trust's commitment to equality and diversity and includes (page 233) the responsibility to always act and speak "in a way which does not discriminate or harass and does not exclude others within the group"[55]There are a number of other initiatives which reflect the active promotion of workplace inclusion as referred to in the witness statement of Ms Jones, including: 55.1. Communications from the Chief Executive (pages 259 – 303) 55.2. Communication from the Trust's Equality and Diversity Team 55.3. Staff surveys 55.4. A Freedom to Speak Up Guardian 55.5. Staff support networks 55.6. A Treat Me Right toolkit Statutory Framework[56]Section 13 Equality Act 2010 (EqA) states that: (1) A person (A) discriminates against another (B) if, because of a protected characteristic [in this case, race], A treats B less favourably than A treats or would treat others[57]Section 26 EqA states that: (1) A person (A) harasses another (B) if - (a) A engages in unwanted conduct related to [race], and (b) the conduct has the purpose or effect of – (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading. humiliating or offensive environment for B … (4) In deciding whether conduct has the effect in subsection (1)(b), each of the following must be taken into account – (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.[58]The burden of proof in discrimination claims rests initially with the claimant but section 136 EqA provides that if there are facts from which the Tribunal could decide, in the absence of any other explanation, that the respondent has acted in a way that is unlawful, the Tribunal must uphold the complaint unless the respondent shows that it did not so act[59]This requires a two-stage process. First, the complainant must prove facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an unlawful act of discrimination against the complainant. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a Tribunal ‘could conclude’ (namely, that a reasonable Tribunal could properly conclude from all the evidence before it) that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination. The second stage, which only applies when the first is satisfied, requires the respondent to prove that it did not commit the unlawful act. However, it is not necessary for the burden of proof rules to be applied in an overly mechanistic or schematic way[60]Section 109 EqA states that: (1) Anything done by a person (A) in the course of A's employment must be treated as also done by the employer … (3) It does not matter whether that thing is done with the employer's … knowledge or approval (4) In proceedings against A's employer (B) in respect of anything alleged to have been done by A in the course of A's employment, it is a defence for B to show that B took all reasonable steps to prevent A – (a) from doing that thing, or, (b) from doing anything of that descriptionConclusions
[61]The burden of proof under section 109(4) rests with the employer Submissions[62]All parties prepared and spoke to very helpful written submissions which the Tribunal does not propose to repeat in this Judgment but full account was taken of all that was put forward by all three representatives, including the various caselaw and the EHRC Code and Guidance, which is reflected in the Tribunal's findings and conclusions Conclusions July 2020 incidentConclusions
[63]The Tribunal refers to the finding of fact that this incident did occur as alleged[64]The second respondent's representative pursued the argument that, in the event of such a finding, the statutory definition was not met in that, as the claimant was not present and (as found by the Tribunal) did not directly hear the term used, it cannot have had the purpose or effect as set out in the statutory definition[65]The Tribunal rejects this argument. It is not necessary for a claimant to be present at or even aware of the conduct alleged for the statutory definition to be met. For the avoidance of doubt, the nature and context of the term used (as found by the Tribunal) is such that the Tribunal is satisfied that its use had "the purpose" set out in section 26 of the Equality Act. Further, without question, it must reasonably have had that effect. In any event, it is not in dispute that the fact of the conduct was known to the claimant when she learned of it arising out of the internal investigation[66]The second respondent's representative pursues the bare submission that "none of the matters complained of by the claimant arose as a result of the claimant's protected characteristic". The Tribunal find this a surprising submission. The very nature of the term used is clearly and, in the Tribunal's view, unarguably related to race and this submission is utterly rejected[67]In respect of this specific incident therefore, the claim is upheld as against the second respondent. It would further be upheld as against the first respondent but subject to the first respondent's argument as to the statutory defence[68]The claim of direct discrimination is expressly pursued as a claim in the alternative should the claim of harassment fail and is, on that basis, dismissed accordingly December 2020 incident[69]The Tribunal refers to the finding of fact that this incident did not occur as alleged[70]In such circumstances, in respect of this specific incident, all claims of harassment and direct discrimination fail Reasonable steps[71]The Tribunal notes the following guidance from the case of Allay v Gehlen [2021] IRLR 348: "The starting point is to consider whether the employer took any step or steps to prevent the harassment. In considering the reasonableness of any steps taken, the analysis will include consideration of the extent to which the step or steps were likely to prevent harassment. For example, it is not sufficient to ask if there has been training, consideration has to be given to the nature of the training and the extent to which it was likely to be effective … Once the Employment Tribunal has considered what if any steps have been taken by the employer, the Employment Tribunal should consider whether there were any other reasonable steps that [the employer] should have taken … The employer has to establish that they have taken all reasonable steps, which clearly is a high threshold."[72]Given the findings of fact, the relevant timeframe for the Tribunal to consider is that leading up to July 2020. As the Tribunal has found this effectively to have been a one-off incident, it does not fall to the Tribunal to consider the appropriateness or otherwise of the manner in which the first respondent dealt with the incident but rather the steps it took (and could additionally have taken) up to that point to prevent such conduct[73]The claimant accepts the factual evidence of the steps relied upon by the first respondent but does not concede they amount to all reasonable steps having been taken[74]The claimant argues that there is no direct reference within the mandatory training to not referring to co-workers with racial slurs behind their backs. The Tribunal does not accept this as a reasonable step but rather overly specific and not something that would be expected to be seen in such training. The mandatory training , in the Tribunal's view, is sufficiently – and reasonably – clear that conduct of this nature is unacceptable[75]The claimant further argues that such training is stale. Again, this is rejected by the Tribunal. The Tribunal considers three yearly training to be reasonable particularly given the size of the first respondent and its reliance upon public funding[76]The principal emphasis of the claimant is upon the reaction to and steps taken by the first respondent in response to the July incident. As found by the Tribunal, this cannot be relevant given the Tribunal's findings[77]Looking at the steps taken in the round, and acknowledging that there is a high threshold, the Tribunal is satisfied that all reasonable steps to prevent the conduct that occurred in the July incident had been taken and accordingly the statutory defence succeeds[78]Nothing further has been identified, either by the claimant or the Tribunal, which reasonably should have been taken Other proceedings[79]As will be clear from these Reasons, the Tribunal is aware that the second respondent was dismissed by the first respondent by reason of gross misconduct arising out of these allegations which, as stated, have been accepted by the first respondent[80]The Tribunal emphasises that, although passing reference has been made to aspects of both the internal investigation and subsequent disciplinary hearing, it has not been relevant to these proceedings for the full facts arising out of the internal process to be considered. The allegations presently to be determined require the Tribunal to come to its own factual findings. The second respondent's claim of unfair dismissal will fall to be considered on its own meritsRemedy
[81]The matter was, with the agreement of the parties, provisionally listed for a Remedy Hearing on 20 March 2023 and such hearing will now proceed unless the parties indicate in the interim that terms of settlement have been agreed