Bijlani v Stewart & Ors [2013] EWCA Civ 1887

Case No A2/2013/0082[2013] EWCA Civ 1887
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Venue Royal Courts of JusticeDate Wednesday, 6 November 2013
Between
BIJLANIAppellant
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE RICHARDS
LORD JUSTICE ELIAS
v
Between
STEWART QC & ORSRespondentDAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)Mr J Hendy QC (instructed by Bar Pro Bono) appeared for AppellantMr R Leiper (instructed by Farrer & Co LLP) appeared for RespondentJ U D G M E N T

LORD JUSTICE ELIAS:

[1]This is an oral application for permission to appeal to the Court of Appeal, having been referred to the court for such a hearing by Mummery LJ. The application is from a decision of the EAT presided over by Slade J in which she dismissed an appeal from the decision of the employment tribunal.[2]The background is this: Dr Bijlani is a barrister of Indian origin and was in a set of chambers at 4 New Square. She originally brought 32 claims under the Race Relations Act and Disability Discriminations Act against three heads of her set of chambers. The allegations were of direct discrimination, victimisation discrimination and harassment. Her practice had not developed as she hoped and she considered that she had been sidelined because of her race in particular, and was not given the same opportunities as her contemporaries.[3]Following a meeting in February 2006 where her concerns were raised, which went very badly by all accounts, she suffered clinical depression and claimed to be the subject of further discrimination thereafter. Relations with chambers deteriorated further.[4]The alleged discriminatory acts on which she relied before the employment tribunal are contained within the 32 claims she brought.[5]The employment tribunal heard the case over some five weeks and produced a judgment of around 190 pages. There was very considerable evidence; we were told that over 30 bundles were analysed and assessed in great detail, and of course the tribunal heard extensive oral evidence. They dismissed all the claims bar one on the merits, and that one was dismissed as being out of time.[6]Dr Bijlani appealed all the findings and sought to introduce fresh evidence. The appeal and the application were initially rejected on the sift by Underhill J, now Underhill LJ, but following an oral hearing under rule 3.10, the President, Langstaff J, allowed the appeal on three grounds whilst dismissing the remaining grounds. In addition, he dismissed the application for fresh evidence.[7]The three grounds related in particular to three alleged racist incidents, the first involving three of the clerks, Messrs Peck, Sabini and Purse in 2000, and two later incidents in 2004 and 2006 involving Sabini only, and certain related matters.[8]The complaints which the President allowed to go forward to a full hearing were identified as follows, being numbers 8, 9 and 10 of the original complaints. 8:
"8. Failure to prevent, abate or condemn the racist conduct of the claimants' clerks, Mr Peck, Mr Sabini and Mr Purse, before or after their racist outbursts in 2000 (all three), 2004) Mr Sabini) and 2006 (Mr Sabini). "9: Failure to provide or require equal opportunities training for the clerks from the outset of their employment onwards, monitor they are conduct and performance or to appoint an equal opportunities member of chambers officer and/or committee in chambers. "10:Appointing Mr Peck, Mr Sabini and Mr Purse to clerk the claimant."
[9]The applicant sought permission to appeal to this court that part of the President’s order which had dismissed the remaining grounds of appeal. That application was considered on paper by Mummery LJ and refused, and then was considered in an oral application before Moore-Bick LJ and again refused. In addition, the application to adduce fresh evidence was also rejected by those judges. It follows that Dr Bijlani before us can pursue only the three grounds for which permission was given.[10]The EAT found against the applicant on each of these three grounds, and that is the decision she now challenges. She has been very fortunate to obtain representation of the highest calibre, if I may say so, from Mr Hendy QC, who is acting pro bono, having been instructed by FRU.[11]I should that we have allowed also Dr Bijlani to reopen certain grounds of her own, which she wished to put to the court. Normally, given that Mr Hendy addressed the court, we would not have allowed her to make submissions, but we recognised the gravity of this matter from her point of view, and we gave her a short period in which to develop her submissions. I am not going to deal with them in any detail. We have carefully considered them, but we reject them.[12]I will simply mention them in outline: first, she is making certain allegations of fraud against certain members of chambers, and also against their counsel, Mr Leiper, who appears in court today. Suffice it to say that it is quite impossible to raise that as a ground of appeal at this stage. It seems to us that much of what she is alleging to us, if not all of it, had in fact been advanced before the courts below, and in particular was considered by Moore-Bick LJ. That is also true with respect to the application for fresh evidence which she has sought to resurrect.[13]Insofar as she submits there is new fresh evidence not before Moore Bick LJ, she will in due course, if she continues to pursue it, have to make good that application in the courts below. They will have to consider whether it has any merit and whether it should be considered in the light of the material before Moore-Bick LJ. On any ground, it is not a matter which we can properly hear today as a ground of appeal.[14]She also alleges bias on behalf of Slade J. This apparently was a ground that was identified after the judgment has handed down. The basis of it is not entirely clear but I understood it to be that Slade J knows some of the key witnesses for the respondents. No grounds have been identified for saying why that allegation is made. Dr Bijlani has apparently sought to send letters to find out in greater detail what contacts Slade J had and has receive no reply. That is not a basis for inferring any inappropriate connection. It is simply a basis for assuming that Slade J did not reveal any connections because she did not believe that there were any relevant connections to disclose.[15]There were also other matters raised in her skeleton in particular in which she sought to challenge the findings of the employment tribunal and to contend that in various ways they were perverse and flew in the face of the relevant evidence. Those matters were certainly issues that she has sought to advance below in her appeal They were unsuccessful, no permission was given to renew them, and they certainly cannot be reopened before us.[16]I turn, then, to the matters which were advanced by Mr Hendy on her behalf. In order to put those in context, it is necessary to focus on the three instances of allegedly racist behaviour, and in particular the first instance, which is without doubt the most important from Dr Bijlani's point of view. Given the significance of it, I will put in paragraphs 12 to 19 of the EAT decision which summarised the essential features of that incident:
"12.On 26 May 2000 Mr Peck telephoned a receptionist, Ms P, when she was at home. Ms P is black. He heard the answerphone message on Ms P's telephone. Mr Peck put the phone on loudspeaker so that Mr Sabini and Mr Purse who were with him could hear the answerphone message when he called the number again. The answerphone tape recorded comments by Mr Peck and Mr Purse. The ET held: "
'222. After the answerphone message had been heard Mr Peck comment that Ms P was bright and had done pretty well, but he then mimicked her Caribbean accent and made a remark to his colleagues:
"I hate educated wogs."
This drew the response:
"Is she that educated?" from someone later identified as being Mr Purse. Mr Peck responded: "
No, but people think that they do ...". He then referred to the sportsmen "Eubank" (obviously Chris Eubank) and Paul Elliot, mimicking Mr Elliot's accent.' "13.Ms P made a complaint to chambers and also referred the matter to the police. An investigation was carried out by a member of chambers, Charles Gibson QC, and Ms Wiseman. They interviewed the three clerks. Justin Fenwick QC, who was then Head of Chambers, sent a confidential email to all members of chambers on 1 June 2000 the day before the interviews. He informed them that an incident in which a racially abusive comment had been made by Mr Peck in the presence of Mr Sabini and Mr Purse and that an investigation was being conducted. "14.On Monday 5 June Mr Gibson QC and Ms Wiseman provided a memorandum to Mr Fenwick regarding the incident. The ET found at paragraph 224:
"'In particular Mr Peck had accepted that he may have said "
I hate educated wogs", but said that if he did so it was in the context of affectation of voice and manner.' On 6 June at least Mr Sabini reinterviewed after Mr Gibson QC and Ms Wiseman listened to the answerphone tape. The ET held that it appears that they also reinterviewed Mr Peck and Mr Purse. Mr Fenwick met Ms P and her husband. The outcome of the meeting was that in principle, subject to a compromise agreement being drawn up and entered into and the approval of the Executive Committee of Claims ('EC'), Ms P was to leave chambers and be paid compensation in settlement of all potential claims against chambers or their employees. "15.There was a meeting of the EC on 5 June 2000. Mr Gibson QC recommended to the EC that Mr Peck, who made the remark and Mr Sabini because he was the senior clerk present, should be dismissed. He recommended that Mr Purse should receive a written warning. At paragraph 227 the ET record that the collective decision of the EC:
"'... was not to accept that recommendation but to recommend that all three clerks should be given written warnings, but also given appropriate racial awareness training. However the EC left the final decision to Mr Fenwick, as Head of Chambers.' "16.The ET found that before Mr Fenwick QC came to his final decision, he and Ms Wiseman between them spoke to the three BME members of chambers: Dr Bijlani, Ms Mirchandani and Mr Asif. They found that both Mr Asif and Ms Mirchandani took the view that sanctions were a matter for the EC. When asked, Ms Mirchandani said that she no longer wished to be clerked by Mr Peck. "17.Mr Fenwick QC met Dr Bijlani. The ET held at paragraph 231: "
'We were satisfied that she was given the same essential details including the envisaged sanctions, as were the other two; and that Mr Fenwick allowed her the same general opportunity to make any observations on clerking arrangements, sanctions, or any other aspect, that he allowed Mr Asif.' "They held that if she did not know precisely what Mr Peck said, Dr Bijlani could have asked Mr Fenwick QC and he would have told her. "18.Having considered the evidence the ET found at paragraph 232 that:
"'There was no suggestion that the claimant had advocated the dismissal of any of the three clerks, and we did not so find; nor did we find that, when Mr Fenwick met with her, she asked that Mr Peck cease clerking her.' "19.There was a full meeting of the chambers on Thursday 8 June 2000. Mr Fenwick QC reported the EC's recommendations and the agreement in principle reached with Ms P. The ET inferred that there was no significant mood of dissent from these proposals at the meeting. The ET held at paragraph 234: 'Mr Fenwick's considered decision was that Messrs Sabini and peck should receive a final written warning and Mr Purse a written warning. All of them as well as the other members of the administrative staff, were also given diversity training.'"
The EAT has therefore identified the precise circumstances of how this racist incident occurred and the way in which the senior members of chambers dealt with it.[17]The second incident involved just Mr Sabini alone. It is succinctly summarised in the decision of the Employment Appeal Tribunal at paragraphs 20 to 21:
"20.On or about 20 October 2004, a BME member of chambers, Mr Asif, spoke to the telephone to his clerk, Mr Sabini, about his brief fee for a case which had resolved unexpectedly just before trial. Mr Asif asked Mr Sabini to raise the question of payment of the brief fee with the solicitors. At the end of the conversation Mr Sabini said to whoever he was addressing in the clerks' room: 'cover your ears' and then said 'greedy cunt.' Neither Mr Sabini nor Mr Asif had yet properly hung up their phones and Mr Asif overheard the remark. "21.Ms Wiseman asked Mr Sabini to attend a disciplinary interview. Mr Fenwick QC and Mr Asif exchanged emails. Mr Asif felt that the matter must be taken very seriously. Ms Wiseman met where Sabini on 27 October 2004. On 4 November 2004 she wrote to Mr Sabini telling him that he was to be given an oral warning and that the letter would be placed on his file for six months. The ET held at paragraph 240: 'She said she concluded that although his comment and tone could be interpreted as exhibiting a dislike or feeling of contempt towards Mr Asif or members of chambers generally, this was not a reflection of his attitude but was a reaction to a situation in which he felt criticised.'"
[18]The third incident involved Mr Sabini alone again. He admitted to using abusive and sexual language to a member of staff of Iranian origin with whom he was in a personal relationship. He professed to be absolutely disgusted with himself, and he was allowed to resign following his suspension pending an investigation.[19]The tribunal concluded at paragraph 526 that whilst these matters did not disclose a general culture of racism and racist attitudes permeating the clerks' room, they did disclose that there were:
"... certain clerks who, to greater or lesser degrees, and at different times, displayed racist attitudes ..."
[20]As a consequence, and read against the disparity between Dr Bijlani's fees and those of her comparatives, the ET was satisfied that the burden of proof had shifted in relation to these matters and that the onus was on the defendants to demonstrate that race was not the reason why they had acted as they did.[21]I turn to complaint 8. The gist of this complaint was that Dr Bijlani suffered a detriment as a consequence of the way in which these grievances were handled, and that the ET had erroneously concluded otherwise. Mr Hendy submits that if properly robust disciplinary action had been taken in respect to each of these incidents, the clerks would have been dismissed and the claimant would not have had to have put up with, or have dealings with, clerks displaying such racist attitudes. Alternatively, they would have been given more rigorous training, thereby ensuring that no discrimination occurred.[22]The ET had analysed this question of discrimination under two heads: first, whether Dr Bijlani had suffered a detriment; and second, whether it was on the grounds of her race. They held that there was no detriment, and that even if wrong about that, the reason for treating Dr Bijlani in the way they had been treating her was not connected to race.[23]The EAT concluded that the ET had erred as a matter of law in directing itself as to what constitutes a detriment. I will assume in her favour that had the ET properly directed itself on this point, she may have been able to demonstrate that she had suffered a detriment within the proper meaning of that term.[24]So the central issue was whether the ET had erred in law in its assessment of the reason for the action or actions which allegedly gave rise to the detriment. In an allegation of discrimination, including victimisation or harassment, the central question is whether the treatment giving rise to the detriment is on grounds of race.That in turn involves asking the question: why were the clerks treated as they were? More precisely in this case, why were they not dismissed for their misconduct? Lord Nicholls pointed out in the Nagarajan case that in order to determine whether or not treatment is on grounds of race, the most appropriate question to ask, in cases of direct discrimination at least, would be why the defendants acted as they did, and that approach has been repeated in many cases since.[25]As Mr Hendy properly reminds us, it is not necessary of course for race to be the whole or even the main reason for the treatment. It is enough that it was one of the reasons causing the defendant to act in a discriminatory way.[26]The ET examined with some care the question of why the clerks were not dismissed following the 2000 incident, and they summarised their conclusions at paragraphs 592 to 593:"592. It was plain from various evidence that we had from a number of witnesses that Messrs Peck and Sabini were widely regarded among members at this time as very good and able clerks who had served chambers outstandingly well. By way of example Mr Stuart-Smith told the tribunal, when asked, that his impression was that those who knew Mr Sabini well would have regarded him as one of the best clerks at that sort of level that one could hope to have. We had no doubt that (looking at the matter, for the moment, entirely in isolaton from what view may or may not have been taken of the incident itself) a significant number of members would have regarded it as a great loss if either one, and certainly both of them at the same time, were to go."593. It seemed to us that the EC in particular were motivated in part by a desire if possible to secure that the outcome of the practical harm to chambers' business, that they considered would be incurred by the loss of Messrs Peck and/or Sabini, be avoided. We drew this inference from a number of aspects including, the decision of the EC as such not to follow the recommendation of Mr Gibson, the failure to request a formal record of Mr Gibson's recommendation or to minute that important EC meeting, and the timing of the consulation of the BME members of chambers, occurring as it did only after the EC had reached their view, and notwithstanding that the final decision rested with Mr Fenwick.".[27]Counsel for the applicant below seized on the words "in part" in the first sentence of paragraph 593. The contention was that one of the other reasons for not dismissing these clerks was a desire to keep out of the public domain the fact that the clerks' room might have been identified as racist. This, which I will describe as reputational damage, was a factor, it is alleged, which influenced the decision not to dismiss, and albeit perhaps not the principal factor, was of sufficient relevance to constitute a reason amounting to racial discrimination.[28]The EAT concluded that there was no proper basis to infer that reputational damage had been one of the reasons why the decision was taken in 2000 not to dismiss the clerks. The EAT pointed out that the ET had given other reasons at paragraph 590 why the clerks were not dismissed, apart from the reluctance to get rid of good clerks. These included the fact that Ms P herself, that is the victim of the racist comments in 2000, did not want them to be dismissed; nor indeed, it seems, did any of the BEM members of chambers when they were consulted about it; and that bearing in mind Ms P's wishes in particular, and the fact that the clerks were required to undertake equal opportunities training, the conclusion was reached that dismissal was not necessary.[29]The EAT held that paragraph 590 had to be read together with paragraph 593, and this explained why the phrase "in part" had been used in the later paragraph.[30]It is also to be noted that the EAT had expressly rejected the submission that the incident had not been treated with the seriousness which it warranted.[31]Mr Hendy submits that this is inadequate reasoning. His argument is deceptively simple. He says the clerks were disciplined for racial misconduct, and the disciplinary measures were therefore necessarily taken on racial grounds. Since it was those measures which caused the detriments alleged, it necessarily followed that the claim for racial discrimination was established.[32]In my judgment, this proves too much. It would mean that whenever someone was disciplined short of dismissal on racial grounds, anyone who suffered a detriment in any way by their continuing in the job could thereafter claim racial discrimination. Indeed, following that logic, it seems to me that even if there were a dismissal, in some cases it may be possible for a member of chambers to establish detriment as a result of that.[33]In my view, the premise of this analysis is false. The act of discipline was not a racial act simple because the misconduct was racial, any more than an act of discipline is a criminal matter when the conduct is criminal. The issue is whether the act of discipline was itself in part influenced by considerations of race quite independently of the reasons why it was necessary to impose a disciplinary sanction.[34]Was one of the reasons why the clerks were not dismissed or alternatively why they were not given what Dr Bijlani would accept as effective training, to do with race? That is what in my view has to be established on the authorities.[35]In my judgment, the EAT was right to conclude that the ET did make clear factual findings as to the reason, or more accurately, the reasons, why the clerks were not dismissed following that incident, and they did not include any racial element. The EAT did not accept that the ET either had found or ought to have found that a reason for not dismissing them was that chambers’ reputation would be damaged. The fact that any chambers might have been pleased to avoid such damage does not make it a reason for their action.[36]I agree with Slade J that there was no justification for going behind the very detailed analysis of the ET itself as to why dismissal had not been sanctioned following the incident in 2000. The desire to keep the clerks, a desire apparently shared unanimously at the time by all members of chambers, and the attitude of the victim Mrs P, fully explain the decision.[37]Mr Hendy submits that this is too narrow a focus, and that it was an error for the tribunal to confine its analysis of reputational damage to the resolution of Ms P's situation. It should have looked more widely at all the circumstances which faced the chambers at that time.[38]I disagree. It was a significant feature of the decision that Ms P did not want these clerks dismissed, and that she was prepared to accept a resolution of her personal grievance without taking legal proceedings. It explains why chambers act as it did.[39]I would accept that if she had pressed for dismissal, for example, as a condition of reaching some sort of agreement, and that had not occurred, then potential reputational damage might well have come more firmly into play. But matters, it seems to me, never did reach that stage, and the tribunal was entitled to say that reputational damage had not been a cause. It is not legitimate to speculate as to what might have been had circumstances been otherwise.[40]Mr Hendy also submitted that the effect on the appellant and other BME members was foreseeable, and was a factor which the defendants either diminished or ignored.[41]I dispute the premise in fact. No-one pressed to have any of the clerks removed after either the 2000 or 2004 incident, and BME members were consulted in 2000, and in 2004, Dr Asif was very much at the centre of discussions about the incident affecting him.[42]There is a complaint that the consultation with BME members was inadequate, and that there should have been full disclosure to them in relation to that consultation, but the question is whether the impact on them was ignored, and in my view it plainly was not as a matter of fact.[43]But in any event, it is certainly not clear that it would necessarily have been in the interests of the BME members to remove the clerks given that they were apparently very able. It is not necessarily surprising that BME members, albeit perhaps in the absence of full consultation, did not press for that action.[44]But even if this factor should have weighed more heavily with the defendants, and assuming that Mr Hendy is right to say that it was not given the significance that perhaps it ought to have been, nevertheless it does not show that the reason for diminishing the significance of it, or ignoring it, had anything to do with race.[45]In my judgment, therefore, there was no error of law in the approach of the ET and no realistic chance of establishing one, notwithstanding, if I may say so, the interesting arguments advanced by Mr Hendy.[46]The arguments in respect of the 2004 and 2006 incidents are much weaker, and they were not really separately pursued by Mr Hendy. In 2004, no racist language was used. The ET accepted that the Head of Chambers at the time, Mr Fenwick, viewed the incident as one of general vulgar abuse rather than racism, although he was concerned that there might be an element of the latter and discussed the matter with Mr Asif, the target of the abuse. Mr Asif in fact said he did not see the incident in racial terms, although the ET itself believed that he had.[47]Critically, however, the tribunal found that Ms Wiseman, who was in charge of the clerks' room, was sensitive to criticism of the clerks and sought to protect them from criticism. She saw Mr Asif's complaint as directed in part at her, and although the tribunal was to some extent critical of the way the matter was handled, they found again that there was no element of race in that handling.[48]This again was plainly a finding on the evidence which was open to the employment tribunal, and discloses no arguable element of law.[49]As to the 2006 incident, the ET noted that it was "not unsurprising" that Mr Sabini should in the circumstances have been given the chance to resign. That observation is itself not unsurprising. There are obviously reasons to explain that decision. Most employers would want a difficult situation to be defused in that way, and there is no evidence that anyone at all was pressing for disciplinary action to continue, notwithstanding that Mr Sabini was willing to go. There was really no basis for assuming that this handling of the matter was connected in any way to racist conduct.[50]I am not sure that complaints 9 and 10 are being pursued independently. They were always, with respect, weak when considered separately from ground 8.[51]The employment tribunal summarised its reasons for finding there was no racial element in those complaints in paragraphs 585 and 586, and the Employment Appeal Tribunal in turn dealt with them at paragraphs 103 and 104 of their decision.[52]It is again right to say that the employment tribunal was critical of some of the shortcomings in the way in which chambers had dealt with equal opportunities issues, but that of course falls a long way short of demonstrating any action or inaction on grounds of race.[53]The EAT concluded in those two paragraphs that the ET was fully entitled to reach the decision that it had. I entirely agree. There is in my view no prospect of these arguments succeeding either.[54]I appreciate Dr Bijlani will be extremely disappointed that I have come to these conclusions. She will feel that she herself has not received justice, but our obligation is to analyse the points of law and see if they have merit. In my view they do not.

LORD JUSTICE RICHARDS: I agree, and I too would pay tribute to Mr Hendy for acting pro bono in this case.

[56]I have found Mr Hendy's arguments challenging, but agree with Lord Justice Elias's reasons why they should be rejected as having no real prospect of success.[57]It follows that the application for permission to appeal is refused.