Lisk-Carew v Birmingham City Council [2004] EWCA Civ 565

Case No A1/2003/2404[2004] EWCA Civ 565
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
EMPLOYMENT APPEAL TRIBUNAL
Venue Royal Courts of JusticeDate Friday, 23 April 2004
Strand
London, WC2
B E F O R E:
LORD JUSTICE KENNEDY
LORD JUSTICE MAY
LORD JUSTICE HOOPER
Between
RONALD LISK-CAREWAppellant-v-
Between
BIRMINGHAM CITY COUNCILRespondentDr SONIA SHARPRespondent
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
The Appellant appeared in person for in personMR EDWARD PEPPERALL (instructed by Legal Services, Birmingham City Council ) appeared for Respondents
J U D G M E N T

LORD JUSTICE HOOPER:

This

[1]is an appeal brought by Mr Lisk-Carew against the decision of the Employment Appeal Tribunal (His Honour Judge Richardson, Mr I Ezekiel and Mr Lyons) dismissing his appeal from a decision of the Employment Tribunal as to the appropriate remedy following an earlier decision that the respondents have discriminated against the appellant by way of victimisation.[2]The Employment Tribunal made an award of £5,000 compensation for injury to the appellant's feelings. The Tribunal rejected the appellant's claim for financial loss resulting from his loss of employment and failure to secure alternative employment. The Tribunal held that the loss of employment was caused not by the victimisation but by a fair dismissal. The Tribunal also held that the failure to secure fresh employment flowed from the fair dismissal. The Tribunal further rejected the appellant's claim that ill health had resulted from, or had been exacerbated by, the act of victimisation. Thus the Tribunal found that the act of victimisation had not caused any special damage and had not caused any injury to health. These conclusions are to be found set out in paragraphs 9 and 10 of the decision of Employment Tribunal at the Remedies hearing as follows:
"9 The applicant is entitled to be compensated for the damages which flow from the acts of victimisation identified by this tribunal in the earlier decision. The applicant has lost his employment and has yet to secure alternative employment. However the loss of employment was caused by a fair dismissal and the failure to secure fresh employment flows from that fair dismissal. His ill health does not result from the act of victimisation nor has that ill health been exacerbated by the act of victimisation. 10 Accordingly, the act of victimisation has not caused any special damage (in the sense of loss of earnings) to be sustained by the applicant. The act of victimisation has not caused any injury to health."
[3]During the course of argument this morning Mr Lisk-Carew has submitted that the Employment Tribunal did not even consider this issue. It seems to me to be clear from those two paragraphs that they did consider the issue and considered it carefully.[4]Permission to appeal to this court was granted by Pill L.J. on one issue, and one issue only, which had earlier been identified by Elias J at a preliminary hearing before the Employment Appeal Tribunal. Elias J had stated:
"There is arguably some contradiction between the finding of fair dismissal and the finding of victimisation."
[5]To understand the remedies decision of the Employment Tribunal, it is necessary to look at the decision on the merits, although that is not the subject matter of this appeal. The Employment Tribunal identified the three principal issues which it had to determine:
"Whether the dismissal of the applicant was unfair; whether the dismissal of the applicant was direct discrimination on grounds of race; whether the dismissal of the applicant was by way of victimisation."
The tribunal was concerned with events after 2 June 1999. Two earlier Employment Tribunals had rejected complaints made by the appellant relating to the period before that date.[6]By letter dated 2 June 1999, the appellant was suspended from duty with immediate effect. He was told by letter that he had undermined the element of trust and confidence between him and his employer in that - "You are unwilling to implement City Council policy. You repeatedly failed to comply with reasonable management directions. You have made repeated unsubstantiated allegations against management and other colleagues. Your attitude towards management is unacceptable in that it is both offensive and uncooperative."[7]The disciplinary hearing took place on 9 February 2000. Dr Sonia Sharp found the appellant guilty of gross misconduct and he was summarily dismissed. The letter written by Dr Sharp dismissing the appellant stated:
"At the hearing evidence was adduced that you: • had demonstrated unwillingness to implement City Council policies, • had repeatedly failed to comply with reasonable management directions, • had failed to withdraw unsubstantiated allegations against managers and other colleagues, • had behaved in a way towards management that is unacceptable and both offensive and uncooperative."
The letter continued:
"After careful consideration of the evidence, I have decided that the allegations contained in John Smail's statement of the case have been substantiated."
[8]The statement of the case is a document of some 9 pages. As the Employment Tribunal stated at paragraph 18 - "The first main allegation made against the applicant was that he was unwilling to implement City Council policy and had repeatedly failed to comply with reasonable management directions. The policy referred to was the Council's Sickness Management Policy. These allegations centred around the events surrounding the return to work of the applicant in October 1998 ..... "[9]The second area of complaint in the statement of case related to what were found by Dr Sharp to be unsubstantiated allegations against management. It was alleged that:
"Ron has made repeated unsubstantiated allegations against management and other colleagues and Ron's attitude towards management is unacceptable in that it is offensive and uncooperative."
There then followed a series of examples of what were said to be allegations made by the appellant against managers. It was said that the actions were malicious and vexatious and that the appellant had "sought to place himself beyond all reasonable management through his repeated and unsubstantiated allegations of management misconduct at all levels". According to the statement of the case none of the allegations had been found to be true.[10]The Employment Tribunal at the merits hearing reached the following conclusions in respect of the claim for unfair dismissal:
"SUBMISSIONS ON UNFAIR DISMISSAL. 31 The applicant submitted that there were no grounds for dismissal. The respondent, in written submissions, submitted that the principal reason was misconduct and that the respondent had behaved reasonably in treating that as a reason to dismiss. CONCLUSIONS IN RESPECT OF UNFAIR DISMISSAL. 32 The dismissing officer was Dr Sonia Sharp. She gave honest and open evidence to the tribunal. She responded courteously to detailed cross-examination. In her evidence she insisted that the main factor for the dismissal was the repeated refusal of the applicant to comply with reasonable instructions, to comply with a return to work and to accept work. In cross-examination she confirmed that she based her decision on the allegations contained in pages 118 to 112 of John Smail's statement to the disciplinary hearing. That section of the statement dealt with the issues of the return to work in October 1998. In answer to the tribunal she confirmed that her main decision was based on the failure of the applicant to comply with reasonable instructions which led her to conclude that the relationship of trust and confidence had broken down. 33 The first respondents have satisfied us that the principal reason for dismissal was the misconduct of the applicant in failing to comply with reasonable instructions given to him. That was a matter of conduct. 34 The respondents carried out a full investigation and gave the applicant and his representative a full opportunity to be heard. The decision was made by Dr Sonia Sharp after that process had been completed. The applicant was afforded the opportunity to appeal. 35 The decision to dismiss in those circumstances was within the range of penalties which a reasonable employer, behaving reasonably, could impose."
[11]As to the claim that the appellant's dismissal was direct discrimination on the grounds of his race, the Tribunal concluded that the claim had not been made out and dismissed it.[12]The Tribunal then turned to the complaint that his dismissal had constituted discrimination by way of victimisation. The Tribunal set out Section 2 (1) of the Race Relations Act 1976 which provides:
"A person ('the discriminator') discriminates against another person ('the person victimised') in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has - (a) brought proceedings against the discriminator or any other person under this Act; or (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act; or (c) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person; or (d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act ..... "
The Tribunal also referred to subsection (2) which provides:
"Subsection (1) does not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith."
[13]The Tribunal concluded that the appellant's actions in making allegations were "potentially protected acts within the definition of section 2 (1)".[14]Having considered the letter of suspension dated 2 June 1999, the letter of dismissal dated 9 February 2001 and the evidence of Dr Sharp before the Tribunal, the Tribunal concluded:
"It is the Tribunal's view that those allegations must have had a significant influence on the decision to dismiss even if that influence was subconscious rather than conscious."
[15]The tribunal said that it followed from this conclusion that the appellant would have established discrimination by way of victimisation unless the Tribunal was satisfied that the allegations made by him were false and not made in good faith (section 2 (2)). In so far as the allegations made by the appellant against John Smail himself on 12 October 1998, a majority of the Tribunal concluded that the allegations were both false and made in bad faith. The Tribunal continued at paragraphs 60 to 61:
"60 With that exception, it is the unanimous view of the tribunal that the applicant has made his allegations of discrimination both to the employment tribunals and in the context of the tribunal proceedings in good faith. This tribunal accepts that at the time of dismissal four of the applicant's tribunal claims had been dismissed. Nonetheless, this tribunal holds that throughout the applicant has held the genuine, if misguided, belief that he had been discriminated against by the respondents on the grounds of his race. This tribunal does not accept, save for the majority finding in the respect of the allegation against John Smail, that the applicant has used allegations of racial discrimination as a weapon or has made the allegations in bad faith with a view to securing a reward unjustly from the tribunal. 61 Accordingly, the tribunal uphold the applicant's complaint that the first respondents have discriminated against him by way of victimisation."
[16]Mr Lisk Carew before us this morning has attempted to re-open those issues. He cannot do so, having regard to the limited ground upon which he was given permission to appeal.[17]I turn to the decision of the Employment Appeal Tribunal. It stated (paragraph 45):
"The starting point of the decision concerning the victimisation claim is the finding, not opposed, that the Council had treated Mr Lisk-Carew less favourably. The treatment which the Employment Tribunal identified was the dismissal."
The Employment Appeal Tribunal continued in paragraph 46:
"The central question is whether the dismissal is by reason of protected acts and if so to what extent and in what respect. This the Employment Tribunal dealt with in paragraphs 59-60 of its Decision ..... "
Paragraph 59 related to the finding that the allegation against Mr Smail had been both false and made in bad faith. In paragraph 60, which I have set out in full, the Tribunal found that the other allegations had not been so made.[18]The Employment Appeal Tribunal then set out its observations on paragraphs 59 to 60 of the Employment Tribunal's decision. In paragraph 47 the Employment Appeal Tribunal said:
" ..... the Employment Tribunal did not find that the dismissal was by reason of the conduct of Mr Lisk-Carew in making an allegation of discrimination against Mr Smail in his letter dated 12 October. If the Employment Tribunal had made such a finding, then since that conduct was an allegation made falsely and in bad faith, section 2 (1) would not have applied to the dismissal. This supports and is consistent with the finding of the Employment Tribunal that misconduct in failing to comply with reasonable instructions was the principal reason for dismissal."
That must, in my view, be right.[19]After citing two authorities, the Employment Appeal Tribunal went on to note the use of the phrase "significant influence" in paragraph 57 of the Employment Tribunal's decision on the merits. In paragraph 50 the Employment Appeal Tribunal stated:
"It follows in our judgment that the Employment Tribunal cannot necessarily be taken as finding that the decision to dismiss would have been different, absent the protected acts."
The Employment Tribunal continued:
"Indeed, if the Employment Tribunal had meant in the Merits Decision to say that the decision to dismiss would not have been made but for the protected acts, it cannot in our judgment be reconciled with the cumulative effect of the findings it had made: that the principal reason for the dismissal was Mr Lisk- Carew's conduct in connection with the return to work, that there was a fair dismissal, that Dr Sharp was honest and that any influence was subconscious and that Mr Lisk-Carew had made a false allegation of racial discrimination in bad faith."
[20]I am not sure that I follow the relevance of Dr Sharp's honesty, of the fact that any influence was subconscious or of the fact that Mr Lisk-Carew had made a false allegation of racial discrimination in bad faith. However the other two findings that the principal reason for the dismissal was the appellant's conduct in connection with the return to work and that the dismissal had been a fair one are, in my view, both highly relevant and decisive.[21]In paragraph 51 the Employment Appeal Tribunal said:
"We do not consider that the Employment Tribunal can be taken as finding that the decision to dismiss would have been different, absent the protected acts."
Although I am not sure that I would have put it in that way, nonetheless it seems to me that the conclusion is unimpeachable. The Employment Appeal Tribunal decided at the remedies hearing that the loss of employment was caused by a fair dismissal, the reason for which was the appellant's unwillingness to implement the City Council's policy and his repeated failure to comply with reasonable management directions.[22]That conclusion followed inexorably it seems to me from its conclusions at the merits hearing. Even if it did not, it was a conclusion which the Tribunal was entitled to reach. To put it another way, the Tribunal at the remedies hearing decided that the appellant would still have been dismissed and fairly dismissed if the only grounds for dismissal had been those relating to the appellant's unwillingness to implement the City Council's policy and his repeated failure to comply with reasonable management directions.[23]It could be put in an alternative way: was the appellant's unwillingness to implement the City Council's policy and his repeated failure to comply with reasonable management instructions an effective and dominant cause of his dismissal? On the findings of the Employment Tribunal the only answer to that question is yes.[24]For these reasons I would dismiss the appeal.

LORD JUSTICE MAY: I agree that this appeal should be dismissed for the reasons which my Lord, Lord Justice Hooper, has given. I do not repeat, and gratefully adopt, his account of the facts and circumstances of this appeal.

[26]The Employment Tribunal found in its decision on the merits that the principal cause of the appellant's dismissal, leading obviously to his loss of employment, was his own conduct leading to a fair dismissal. They also found that all but one element of the victimisation of which he complained was established and had operated, albeit largely subconsciously, as a significant influence on the decision to dismiss him. The appellant does not have permission to appeal against this decision. It entitled him in principle to compensation for the victimisation. The Employment Tribunal awarded him £5,000 for injury to feelings but nothing for loss of employment or other particularly quantifiable amounts. The appellant has permission of Lord Justice Pill to appeal against the failure of the Employment Tribunal, upheld by the Employment Appeal Tribunal to award him greater compensation than they did.[27]The jurisdiction to award compensation is statutory. It is to award compensation of an amount corresponding to any damages which the respondent could have been ordered by a county court to pay to the appellant if the complaint had fallen to be dealt with under Section 57 of the Race Relations Act 1976. This is under an umbrella statutory provision of that which the tribunal considers just and equitable.[28]The Employment Tribunal held that the cause of the appellant's loss of employment was his own conduct leading to a fair dismissal. Mr Pepperall acknowledged in his written skeleton submission that there is something of a tension here, because of the Employment Tribunal's earlier finding that the victimisation was a significant influence. If, as I think is arguable, the Employment Tribunal’s merits decision is to be seen as a decision that the appellant’s loss of employment resulted from two causes - his conduct leading to a fair dismissal and the victimisation - there is a question of law as to whether the Employment Tribunal were wrong in their remedies decision not to award compensation for the victimisation, which was one of the causes.[29]The Employment Tribunal resolved that by their finding as to causation. They could alternatively, as my Lord has said, have carried through the obvious consequence of their earlier finding to hold that the effective, dominant cause of the relevant loss was the appellant’s own conduct and not the victimisation. They could yet further have held, again for obvious reasons, that it was not just and equitable to award more than the £5,000 which they did award. In my judgment, either or both of these in conjunction would have been correct in law and would have resulted in additional reasoning in support of the decision which the Employment Tribunal reached.[30]I therefore agree with my Lord, Lord Justice Hooper, that the relevant decision of the Employment Tribunal is not amenable to appeal and that the appeal should be dismissed.

LORD JUSTICE KENNEDY: I agree that the appeal must be dismissed for the reasons given by my Lords.

Order

Appeal dismissed with the costs to be subject to detailed assessment

Cited in 3 later judgments