Subasinghe-Sharpe v London Borough Of Brent [1991] UKEAT 583_89_0512

EAT
Subasinghe-Sharpe v London Borough Of Brent
[1991] UKEAT 583_89_0512 · 1991-12-05
MR JUSTICE KNOX: The appellant Mrs Subasinghe-Sharpe appeals the decision of the Industrial Tribunal sitting at London (North) on 17th, 19th and 20th July and 29th August 1989 that she was neither subjected to race discrimination nor victimisation, and was not constructively dismissed by the respondents the London Borough of Brent ("Brent"). At the outset there were three Originating Applications before the Industrial Tribunal. The first, presented on the 13th August 1989 and dated the previous day, was held at a preliminary hearing on the 3rd April 1989 to be out of time and the Industrial Tribunal refused to extend time. Although it was not substantive before the Industrial Tribunal at the hearing from which this appeal is brought, its existence is a highly material fact in relation to the appeal on the second of the two Originating Applications namely that alleging victimisation contrary to s.2 of the Race Relations Act, 1976. The third Originating Application claiming relief for unfair dismissal is closely linked to the victimisation issue in that if there was, as the Industrial Tribunal held, no victimisation, it was not seriously disputed that but that there was no constructive dismissal when Mrs Subasinghe-Sharpe took early retirement on 7 October 1988.Mrs Subasinghe-Sharpe was employed by Brent from 1978 at the latter's Kingston Lane residential home for children as a social worker. She held the rank of Senior Social Worker for a number of years when financial difficulties overtook Brent in mid summer 1987 and it was decided to close (inter alia) the Kingston Lane home.The officer who had responsibility for child care centres in Brent at all material times was a Mr Booth. He appointed in October 1987 as head and deputy head of the Kingston Lane home two persons, a Mr Turnbull and a Mr Pavey and it was those appointments that Mrs Subasinghe-Sharpe later challenged in the first of the three Originating Applications mentioned above as constituting racial discrimination against her.Other matters of complaint by Mrs Subasinghe-Sharpe related to claimed malpractices by other members of staff at Kingston Lane about which she made a complaint in March 1988 and a decision to change the key worker, previously Mrs Subasinghe-Sharpe herself, appointed to a particular child, Remi Cole, at the Kingston Lane home. An initial decision later in March 1988 not to take disciplinary action concerning Mrs Subasinghe-Sharpe's conduct in relation to this change of key worker because of her expected early retirement was reconsidered when Mrs Subasinghe-Sharpe stated in a letter of the 23 May 1988 that in the light of the amounts estimated which she would receive on early retirement she declined to take such retirement until a better offer was made. Disciplinary procedures were reactivated but a fruitful meeting was held on 20 June 1988, attended by Mrs Subasinghe-Sharpe, her union representative Mr Sunderland, Mr Rafael Halahmy a principal officer of Brent for the residential care section and Mr Turnbull the acting head of the Kingston Lane home, at which a general compromise was reached. The charges that were to be the subject of the disciplinary procedures were withdrawn and it was agreed that Mrs Subasinghe-Sharpe should not go back to the Kingston Lane home but should become a redeployed employee. A letter confirming the meeting was sent on 22 June 1988 by Mr Peter Bibby Deputy Director of Operations in Brent's Social Services Department which included the following:
"You have already had some discussion with certain officers regarding your future place of work and you should contact, at the earliest opportunity Di Kaufman and Rafael Halahmy to make plans in this regard. During the recent discussion the possibility of a transfer to Woodcock Hill was mentioned. If it is the case that you wish to pursue the possibility of work at that unit and wish to be redeployed into a vacant post there you are, of course, entitled to a preferential interview which the Principal Officer, Rafael Halahmy will chair. Finally you raised the issue of future contact with children with whom you have had dealings in the past. This is essentially a practice issue and you should arrange a discussion with the senior officers concerned, principally Rafael Halahmy and Brian Turnbull."
Unfortunately from then on matters deteriorated. On the 23 June 1988 a local paper gave further publicity to the allegations of malpractice at Kingston Lane which Mrs Subasinghe-Sharpe had earlier raised. Her union representative told the Industrial Tribunal about this:
"I was not pleased by this article. It destroyed all the goodwill from the June 20th meeting."
Moreover no effective steps to redeploy Mrs Subasinghe-Sharpe were taken by Brent officers. As already mentioned in August 1988 Mrs Subasinghe-Sharpe presented her first Originating Application to the Industrial Tribunal claiming discrimination against her on grounds of race. This followed immediately upon her approach on the subject to the Commission for Racial Equality ("the CRE"). Mrs Subasinghe-Sharpe on the 4 October 1988 wrote a letter asking what was being done to Brent's Divisional manager, Personnel and Training and sent a copy to Mr Sunderland. The latter knew that there was a time limit on redeployment in that those who were not redeployed were to be made redundant by December 1988, so that he was concerned on Mrs Subasinghe-Sharpe's behalf and he got in touch with Mr Halahmy. The latter had in the meanwhile been in repeated contact with Mrs Subasinghe-Sharpe. He gave evidence before the Industrial Tribunal which expressed the view that he was patently honest and sincere and it accepted his version of certain critical telephone conversations upon which Mrs Subasinghe-Sharpe's complaint of victimisation depend and which are dealt with later in this judgment. Mr Halahmy's evidence to the Industrial Tribunal, which it appears very likely it accepted, was that he formed the view of Mrs Subasinghe-Sharpe that she had feelings of rage at the way she felt she had been treated, that she felt unwanted, unloved and deskilled. She also had matrimonial differences with her husband. Mr Halahmy's opinion was that it was very important that she should return to work but that she should do so only when not under stress, when she had had time to resolve her difficulties.The critical conversations took place on or shortly before the 5 October 1988. At this stage Mr Booth knew, but Mr Halahmy did not know, that Mrs Subasinghe-Sharpe had presented her originating application claiming racial discrimination as already set out above.Mr Halahmy before the 5 October 1988 spoke to both Mrs Phillips, head of the Woodcock Hill home and to Mr Booth. Mrs Phillips was concerned that Mrs Subasinghe-Sharpe's problems should be resolved before she was taken on at Woodcock Hill and said so to Mr Halahmy. The most important conversation for the purposes of this appeal was that between Mr Booth and Mr Halahmy both of whom gave evidence to the Industrial Tribunal. Their evidence was not the same more especially on the question whether or not the existence of Mrs Subasinghe-Sharpe's complaint to the CRE and originating application claiming racial discrimination was revealed by Mr Booth to Mr Halahmy but the Industrial Tribunal in accepting, as it did, Mr Halahmy's version of the relevant conversations and in finding, as it did, that Mr Halahmy did not know about the complaint to the CRE or the Originating Application based upon it the Industrial Tribunal must have rejected Mr Booth's evidence where it differed from that of Mr Halahmy on that matter. Apart from that aspect there was a large measure of agreement between the evidence of Mr Halahmy and Mr Booth. Mr Halahmy, whose evidence was accepted by the Industrial Tribunal, is recorded as having said in evidence of his conversation with Mr Booth:-
"We agreed if complaints were dropped and the whole issue has been resolved that we should pursue redeployment on the acceptable respondent procedures."
So far as Mr Halahmy is concerned those complaints cannot have been understood by him to refer to the complaint to the CRE or the originating application that followed it because he knew nothing about them. They must therefore have been understood by Mr Halahmy to refer to the other issues which he had been discussing from time to time with Mrs Subasinghe-Sharpe and many, if not all of which, had been thought on both sides to have been agreed to be forgiven, if not forgotten, at the meeting of the 20 June 1988. So much is clear from the Industrial Tribunal's decision. What is very much less clear, and indeed quite uncertain, is what view the Industrial Tribunal took of Mr Booth's understanding of the conversation he had with Mr Halahmy.The Chairman's notes of Mr Booth's evidence reveal that he gave internally contradictory evidence. At one stage he said this:-
"There were no outstanding complaints the applicant had leaving aside her complaints to the C.R.E and the Industrial Tribunal. The only ones therefore these complaints all that existed between the applicant and the respondent."

At another point the notes read:-

"Did I say applicant would have to drop her complaints? No the conversation I was thinking was the issue of redeployment. I was wanting the problems to be dealt with of getting the applicant back into operational situation. I am not agreeing that I said the complaints must be dropped before we could redeploy the applicant."
There are no specific findings in the Industrial Tribunal decision beyond what is implicit in its acceptance of Mr Halahmy' evidence about what Mr Booth meant or understood in that conversation with Mr Halahmy. Mr Meeran naturally relied strongly on Mr Booth's admission at one point that there were no outstanding complaints between Brent and Mrs Subasinghe-Sharpe. When coupled with Mr Halahmy's evidence that he and Mr Booth agreed that if complaints were dropped they should pursue redeployment, it clearly makes it at least arguable that what Mr Booth, as opposed to Mr Halahmy, had in mind was the dropping of the complaint to the CRE and the originating application.The other important conversations on the telephone were between Mr Sunderland and Mr Halahmy and between Mrs Subasinghe-Sharpe and Mr Halahmy. As regards these there are clear findings by the Industrial Tribunal which rejected the evidence of Mr Sunderland and Mrs Subasinghe-Sharpe that it was said by Mr Halahmy that the complaint to the CRE must be dropped before redeployment could take place. The Industrial Tribunal gave this account of Mr Halahmy's evidence about his conversation with Mr Sunderland:-
"He" (that is Mr Sunderland) " said that he had spoken to both Mr Booth and Mr Phillips and "we felt that there were problems because of all the complaints. I was hoping to redeploy her on the basis that everything could be set aside, that she could cope with it and not let it spill over on to the children". He (that is Mr Halahmy) "said there were no problems if the applicant was prepared to drop those complaints and to start afresh. He did not know the nature of the complaints."
It does therefore appear to have been specifically found by the Industrial Tribunal that Mr Halahmy did say to Mr Sunderland that if complaints were dropped redeployment could be pursued but that in doing so Mr Halahmy was not referring to the complaint to the CRE of the originating application which followed it for the excellent reason that he knew nothing about them. It follows of course that he had no relevant intention regarding the withdrawal of the complaint to the CRE or the originating application.There are no separate findings about a telephone conversation between Mr Halahmy and Mrs Subasinghe-Sharpe except what can be deduced from its acceptance of Mr Halahmy's evidence which quite clearly conflicted with Mrs Subasinghe-Sharpe's evidence that Mr Halahmy confirmed her version of what Mr Sunderland had told her Mr Halahmy had said to him, Mr Sunderland. It is we think very clear that her evidence on this was rejected. Apart from that critical point Mr Halahmy agreed with what Mr Sunderland said in his evidence.The Industrial Tribunal, having accepted Mr Halahmy's evidence as truthful, rejected the claim based on victimisation. It also rejected the argument addressed to it, but not repeated to us, that there was discrimination on racial grounds in the appointments of the head and deputy head of the Kingston Lane home or in the disciplinary procedures concerning the change in key worker for Remi Cole or in the failure to arrange a redeployment interview for Mrs Subasinghe-Sharpe. Mr Halahmy was specifically exonerated from those charges and the Industrial Tribunal then said this in para 30 of its decision:-
"If it is being alleged that there was a conspiracy on the part of a number of respondent employees to stop the applicant from being redeployed, we would make the same observation as we have regarding Mr Halahmy. Having heard and seen Mr Booth, Mr Bibby, Mrs Kaufman, we are satisfied that the treatment of the applicant by them was in no way motivated by racism."
That passage is in our view directed at the matters in respect of which Mr Halahmy had just been acquitted and was not, we think, directed to the agreement between Mr Halahmy and Mr Booth regarding the dropping of complaints before Mr Halahmy spoke to Mr Sunderland.The appeal before us was based on the submission that the Industrial Tribunal should have considered the state of mind of Mr Booth in agreeing with Mr Halahmy before the latter spoke to Mr Sunderland that if the complaints were dropped the redeployment procedures could be pursued and that since Mr Halahmy was Mr Booth's inferior in Brent's hierarchy Mr Halahmy's state of mind in passing on the management decision was irrelevant.Mr Devonshire for Brent submitted that the appeal was based on inferences of fact that were not supportable. First, he submitted that Mr Booth's agreement with Mr Halahmy regarding complaints being dropped did not necessarily refer to Mrs Subasinghe-Sharpe's formal complaint to the CRE and originating application in connection with it but might have referred to the complaints which Mr Halahmy, who did not know about the complaint to the CRE or the originating application, had in mind. In our view that is a possibility but no more than a possibility on the findings of the Industrial Tribunal which do not include a specific finding about Mr Booth's state of mind. Secondly, Mr Devonshire submitted that Mr Halahmy was much more than an intermediary and it is not right to impute Mr Booth's knowledge to him.This is in our view the critical issue in this appeal. The Industrial Tribunal has not made a finding on the question which of Mr Booth and Mr Halahmy took the operative decision regarding the statement that was found to have been made to Mr Sunderland that if the complaints were dropped the redeployment procedure could be pursued. We were referred by Mr Devonshire to Aziz v Trinity Street Taxis [1988] ECR 534 in which the Court of Appeal considered the meaning of S.2 of the Race Relations Act 1976 , relied upon by Mrs Subasinghe-Sharpe in the present case. S.2 provides as follows:-"(1) 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, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.(2) 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."

At p.548 Slade LJ giving the judgement of the Court said:-

"Paragraphs (a)(b)(c) and (d) of Section 2(1) however are all concerned with the motive which caused the alleged discriminator to treat the complainant less favourably than other persons. In our judgement (c) no less than paras (a)(b) and (d) contemplates a motive which is consciously connected with the race relations legislation."
It follows from the principle thus established that it is of critical importance to identify the mind that took the relevant decision for the act complained of to be done, because without that the relevant motive cannot be examined. It is clear in the Industrial Tribunal's findings of fact that it is at least possible that Mr Booth and Mr Halahmy used the "complaints" in quite different senses when they reached their argument. It is equally possible, but not in our view at all certain on the findings of the Industrial Tribunal, that, if it was indeed Mr Booth who took the decision to say to Mrs Subasinghe-Sharpe and her union representative that the redeployment procedures could be pursued if the complaints were dropped, he, Mr Booth, had no motive consciously connected with the Race Relations legislation in so doing. On the other hand if it was Mr Halahmy who took the decision and only consulted Mr Booth to keep him in the picture, as opposed to taking his instructions, then the findings of the Industrial Tribunal necessarily exonerate Brent because Mr Halahmy was clearly without the requisite motive.It is in our view only correct to take into account the knowledge and motive of a superior officer in an organisation that is said to have been guilty of an act of victimisation if that superior officer was the person who took the decision to do the act in question. We exclude a case where there is a racially motivated conspiracy between officers of different ranks when quite different considerations would apply.We conclude that the Industrial Tribunal's task is incomplete in that there is no finding(a) which officer in Brent's organisation took the decision that it should be said to Mrs Subasinghe-Sharpe and her union representative that if the complaints were dropped the redeployment could be pursued, nor(b) if that officer was Mr Booth, whether he had a motive consciously connected with the Race Relations legislation in doing so.The appeal will be allowed and the case remitted to the Industrial Tribunal to reconsider its decision in the light of this decision. We will hear the parties on the question whether the same tribunal, if it is available, or another one should hear the matter.