Traynor v Littlewoods Organisation Plc [1994] UKEAT 874_93_1212

EAT
Traynor v Littlewoods Organisation Plc
[1994] UKEAT 874_93_1212 · 1994-12-12
MR JUSTICE MUMMERY (PRESIDENT) : This is an Appeal against the Decision of the Industrial Tribunal held at Liverpool on 13 and 14 April 1993. For full reasons sent to the parties on 10 June 1993, the Tribunal unanimously decided that the Applicant, Mr Traynor, was not unlawfully discriminated against by the Littlewoods Organisation, his former employers, contrary to the provisions of the Race Relations Act [1976] .Mr Traynor appealed against that Decision by a Notice of Appeal dated 20 July 1993. There was a preliminary hearing of the Appeal by the Employment Appeal Tribunal on 17 March 1994. Directions were given for the Appeal to proceed to a full hearing. The chairman's notes of evidence were ordered to be produced. Skeleton Arguments were ordered to be exchanged. Those interlocutory orders have been complied with. This is the full hearing of Mr Traynor's Appeal.At the hearing of the Appeal, Mr Traynor has conducted his own case and the Littlewoods Organisation has been represented by Counsel, Mr Bradley. We are indebted to both Mr Traynor and Mr Bradley for the clear presentation of the arguments. The background to the dispute is this: Mr Traynor began to work for the Littlewoods Organisation on 3 August 1987. He was employed as a packer and fork lift truck driver in the stationery department. His immediate supervisor was a Mr Holmes.Mr Traynor complained that Mr Holmes had made remarks which were racist. He complained that in August 1988, Mr Holmes had said to him "They should put you all back on a boat" and a year later, Mr Holmes was overheard by another employee saying:

"... What did your last nigger die of."

Mr Holmes was suspended in August 1989. Also in August 1989, there was due to be heard a disciplinary hearing involving a matter of Mr Traynor's lateness record. In relation to that disciplinary hearing, Mr Traynor prepared a document headed "Points to be made before the Disciplinary Meeting begins 10th August 1989". It sets out over three pages, various points which Mr Traynor wished to make. On the third page, it says:
"... Due to all these facts, and more, I feel that I can no longer work for this company, although I do not intend to resign without receiving compensation. I intend to go to an Industrial Tribunal on the following grounds:-

Discrimination

Victimisation

Harassment

Deterioration of health - asthma attacks brought on by stress

Injured Feelings

Loss of Livelihood

I would also point out that my case will be widely publicised as a lesson to all, but especially as a means of informing the public that Littlewoods is not such an equal opportunities company as it would like to think it is..."On 20 November 1989, Mr Holmes was redeployed at another site which did not involve supervisory functions. On 20 November 1989, there was also held a meeting attended by Mr Traynor. The others present were Mr Wilkinson, Mr Irving and Mr Bassey. Mr Wilkinson was the company secretary, Mr Irving the personnel director and Mr Bassey the principal personnel officer in the Respondents' equal opportunities department.The meeting was held, as Mr Traynor had taken up his complaints through the grievance procedure. The meeting lasted about 1 1 / 2 hours. In its findings of fact the tribunal stated that it was satisfied that the meeting was wide-ranging in its content. The tribunal accepted the point made by the Littlewoods Organisation that it was anxious that Mr Traynor should not leave its employment. Mr Wilkinson thought that the meeting would serve to solve Mr Traynor's perceived problems. It was felt at that time that Mr Traynor was capable of eventual promotion. Mr Wilkinson's confidence was not shared by Mr Traynor, as appears from a letter which was sent by Mr Traynor on the same day addressed to Mr Wilkinson. That letter stated:
"... Further to our meeting, which took place earlier today, I have thought very carefully about what was said about furthering my career and racism in general.
I do not feel much progress was made as a 'clean slate' would imply I was guilty [the reference to a 'clean slate' is to the disciplinary matters relating to his lateness]. I am not, others are, and not much seems to be getting done as a deterrent.Due to these facts I do not think I can work for this company any longer and wait for the next incident. I would consider the basic redundancy offer for two years service to be totally unacceptable, bearing in mind I am not the guilty party, and the other offer was put forward to me. I would consider it, but if not I would hope a court would offer me a higher settlement.I would appreciate it if you could reply to this letter as soon as possible, as my solicitor is waiting upon further instructions..."Mr Wilkinson replied to that letter on 22 November. He referred to the meeting that had taken place on 20 November, stating he was writing to record the outcome of our discussions. He wrote:
"... Mr Irving explained that the purpose of the meeting was of a counselling nature. There have been significant changes since your letter of 10th August [that refers to the memorandum I have already quoted from and he then sets out four numbered paragraphs (a), (b), (c) and (d) which are relevant in view of what happened later]. (a) Mr Holmes, your previous supervisor, has moved to another position outside JM Centre [JM Centre was where Mr Traynor was working]. (b) The Company is currently in the process of appointing a new supervisor in Stationery Department. (c) The new supervisor will receive training in managing a multi-racial workforce and improving morale and efficiency in the Stationery Department. (d) Your complaints have been discussed in detail with the relevant managers and investigated by the Equal Opportunities Unit."

[He then added]

"The preferred course of action is for a fresh start to be made in the Stationery Department. You should try to forget the perceived difficulties in the past and, on our part, your (and your colleague's) late and absence records will be disregarded.
With commitment on both sides, there is no reason why you should not succeed in your employment and be eligible for promotion in the future.Mr Bassey, Mr Irving and I all urged you to take this opportunity, despite the misgivings that attitudes amongst lower management had not changed. Mr Bassey pointed out that your lateness record in itself would result in apparent confrontation and with better management, this could be controlled..."

[The letter continued]

"... You undertook to consider the options for a few days

[and then says]

During yesterday afternoon, I was sorry to receive your letter of 20th November stating that you did not think you could work for the Company any longer.Under the current redeployment exercise agreed with the Unions, your voluntary redundancy entitlement is £2,063.63.I would urge you, however, to reconsider your decision, which is a short term view, and to take the opportunity for a fresh start. We are all committed to ensuring that you succeed with the Company and there is no reason that with a new supervisor and a committed approach on your part why you could not have a very promising career with the Company.

I hope you will change your mind..."

On the next day, 23rd November, Mr Traynor sent an internal memo to Mr Wilkinson, acknowledging receipt of the letter just read. That sets out a number of comments by Mr Traynor, including the following in the penultimate paragraph:
"... You have offered me redundancy in the sum of £2,063.63. I would suggest that a figure of, say, 1 1 / 2 times my salary would be more appropriate in order for me to set myself up in a trade that will enable me to live up to my present standard of living.
I would be grateful to hear from you as soon as possible with an offer of compensation."We have been told by Mr Bradley this morning that 1 1 / 2 Mr Traynor's salary would have produced a sum of about £8,000.00.The response was a letter from Mr Wilkinson to Mr Traynor on 24 November, saying:
"... As I informed you, your complaints that you have been unfairly treated on racial grounds have been fully investigated, both by management and by the equal opportunities unit. Appropriate action has been taken to deal with the matter. I had hoped that you would feel able now to accept the situation and on management's part, your very poor record of attendance would be disregarded.
As I stated, you and management must now make a joint effort to work together in the future for the benefit of all.As you seemed reluctant to accept this at our meeting, I offered to you the alternative of applying for voluntary redundancy upon the current terms as agreed with the Unions. It was not my intention to offer you compensation on any other basis. I am afraid, therefore, your suggestion of a payment of 1 1 / 2 times your salary is quite unacceptable.I hope that you will not continue your employment in the Stationery Department. However, if you decide you wish to leave the Company, the offer of redundancy will remain open to you..."After that letter was sent, Mr Traynor was away from work for a period due to illness. He returned to work on 18 January 1990. By that time, the Tribunal found that various items, in the letter of 22 November, had been implemented. The Tribunal found that item (a) relating to the moving of Holmes to another position outside the JM centre, had been implemented. He had been moved to premises in Edge Lane and in that position, he would not be responsible for other staff.The Tribunal found that as to item (b), which concerned the appointment of the new supervisor in the stationery department, Mr Ray Stowbridge had been appointed supervisor with effect from 9 January 1990. He had not yet received additional training referred to, though it has since taken place.Sofar as item (d) was concerned, (that was dealing with complaints which had been discussed with relevant managers and investigated by the Equal Opportunities Unit), the Tribunal found that what had been stated earlier in its decision, far from being ignored, Mr Traynor's complaints had received due consideration. It therefore appears that the only item in the letter of the four items stated in the 22 November, that had not been implemented, was the training of Mr Stowbridge in managing a multi-racial workforce.On the day when Mr Traynor returned to work, things did not go well as far as he was concerned. The Tribunal stated, in their findings of fact, that when he returned to work on 18 January, Mr Traynor felt that he was being shunned. He alleged that Mr Keys (Mr Keys was Mr Traynor's line manager) had stared at him and walked straight past him, though he had spoken to all the other lads in the department, except Mr Traynor. The Tribunal commented that Mr Traynor's subsequent reaction might well be seen as somewhat "impetuous". He spoke to Mr Wilkinson saying that he could not remain and wanted to apply for voluntary redundancy. He was referred to Mr Roberts who was the personnel manager and Mr Roberts indicated that his application should be in writing. His application was made in writing and was accepted. The position was that on 18 January, Mr Traynor signed a document, apparently typed by Mr Roberts and addressed to him, which said:
"... Dear Mr Roberts,
I wish to apply for Voluntary Redundancy under the terms of the Company Redeployment Agreement.If this is acceptable, I wish to terminate my employment on Friday, 19th January 1990..."The letter of the same day signed by Mr Roberts confirmed Mr Traynor's request for voluntary redundancy being accepted and confirmed that his employment would terminate on 19 January. It stated that:
"... Under the terms of the Redeployment agreement you will receive the following payments:-

Severance Pay 1092.42

Notice payment (8 weeks) 971.21

2063.63..."Mr Traynor's employment ceased on 19 January. On the same day, he presented an application to the Industrial Tribunal, making a number of complaints. I should mentioned that at this stage, Mr Traynor had made an earlier application to the Industrial Tribunal under case number 1630/90, in which he complained of acts of race discrimination committed in August 1988. In that complaint, he alleged that there had been racial discrimination in a number of respects, namely that Mr Holmes had made racist comments in August 1988 and August 1989. He alleged that Mr Keys wanted more applicants for his job in August 1987 and that a Mr Officer has prevented Mr Traynor from attending health and safety courses.When that application was heard by the Industrial Tribunal on 28 March 1990. They decided, for reasons notified to the parties on 3 April 1990, that the Originating Application was out of time and it was dismissed for lack of jurisdiction.On 9 April 1990, Mr Traynor presented the application case number 9102/90, which is the subject of this Appeal. In that he complained of race discrimination and stated that the date on which the action complained of took place or first came to his knowledge was 18 January 1990. His complaint was briefly stated as follows:
"... 1. I had been informed that a new supervisor would be trained in 'managing a multi-racial workforce'. When I returned to work on 18.1.90 I found that this had'nt happened.
2. I had to leave work through Littlewoods not keeping to their promises it was affecting my health and social life.3. I was also promised that Mr Holmes my previous supervisor would be sacked if he made racist comments in work..."He said he was not sacked. He found it impossible to work in these conditions. He was told that the managers would start afresh when he returned to work on 18 January 1990. The conditions and atmosphere of the managers were the same.The form of those complaints led Littlewoods to request Further Particulars and in the Particulars which were given on 30 April 1990, Mr Traynor said this:
"... I address the issues raised...as follows...
On 19 January, 1990 I left my employment, because I found it detrimental to work in a situation which remained unresolved with regard to racism which I had experienced from my direct Supervisor, Mr Holmes, who had said to me "If I had my way, I'd send you all back on the boat. Also, in August 1989 Mr Holmes said to another manager, in the hearing of another Black employee, "what did your last nigger die of". Not only was Mr Holmes the subject of my using Littlewoods' grievance procedures, Mr Keys, the Stationery Manager, and Mr Officer, the Offices Service Manager, were also the subject of my grievances regarding discrimination contrary to the 1976 Race Relations Act.I invoked the grievance procedure on several occasions when I was confronted with racism within my workplace, to no avail. My health began to suffer and I received medial care for rapid weight loss due to stress, and insomnia. I was off ill for the first three weeks of 1990 up until 19th January when I found it impossible to remain in my employment. I resigned and took voluntary redundancy which I was offered as an option. I believe I was offered this on racial grounds because Littlewoods could not resolve the issue of discrimination and racism which I, and other Black colleagues, have experienced. [He adds]I believe I was constructively dismissed and I was discriminated against contrary to the Race Relations act 1976 Section 1(1)A. 2.3 - in the way I was offered redundancy and the terms and conditions offered to me which were contrary to the Race Relations act 1976 Section 1(1)B, Section 3(1)-(2). [He also said]I believe the redundancy offer was tantamount to victimisation (Race Relations Act 1976 Section 2(1)) as I believe I was offered this because Littlewoods wanted to be rid of me because of my complaints as a Black man against discrimination and victimisation.All these matters were raised in August, 1989 with Littlewoods through their procedures, and things steadily got worse result in my leaving on 29th January. I claim discrimination under the Race Relations Act 1976 as to the circumstances of my resignation..."There was a request for Further Particulars supplied on 12 June 1990. In that document, Mr Traynor referred to Mr Holmes' racist comments and he added this in the last paragraph, when he was asked to identify what conduct of Littlewoods between 9th January and 19th January had been repudiatory or an act of racial discrimination. (The request in relation to repudiatory conduct was raised in response to Mr Traynor's allegation of constructive dismissal). He said:
"... As you well aware, I was off sick with bad health, due to the constant discrimination and ill feelings towards me from earlier incidents. Are you not aware of the Race Relations Act 1976 which it states that "it is unlawful for an employer to treat someone less favourably than another, because he has made allegations in good faith". I consider management ignoring me and being discriminatory against me tantamount to victimisation..."
There was then a preliminary hearing before the Industrial Tribunal on 4 July 1990 and on 7 September. For reasons notified to the parties on 13 November 1990, the Tribunal found that Mr Traynor had complied with the time limit requirements of Section 68 of the Race Relations Act [1976] , that accordingly the Tribunal had jurisdiction to consider the claim and that it should now go to a full hearing on the merits.Littlewoods appealed against that decision to the Employment Appeal Tribunal and the Employment Appeal Tribunal dismissed Littlewoods' Appeal on 18 November 1992.During the course of the Tribunal's Judgment given by Lord Coulsfield, he stated:
"... So long as the remedial measures which had been agreed on in November 1989 were not actually taken, a situation involving racial discrimination continued and allowing that situation to continue amounted to a continuing act. Of course, at this stage in the proceedings, the Industrial Tribunal have not decided that the employers' actions in allowing the situation to continue were, in fact, racially discriminatory or gave a good ground for complaint. We have to proceed upon the assumption that the situations which continued to prevail after November 1989 and up to the date on which the Respondent's employment was terminated may be capable of amounting to a continuation of discrimination. On that footing, we see nothing wrong with the decision of the Industrial Tribunal..."
The hearing then took place before the Industrial Tribunal at Liverpool. The Tribunal, in its Decision, referred to many of the matters already included details of this Judgment. The Tribunal found that three of the four items in the letter of 22nd November 1989 had been implemented. The only one that had not was that the additional training had not taken place. The Tribunal found that Mr Traynor's complaints had been dealt with, that he had not been treated less favourably than others and that his allegation that he had been ignored by Mr Keys when he returned to work on 18 January, did not justify him in treating his contract as repudiated.The Tribunal gave their reasons for their Decision that there was no racial discrimination or constructive dismissal in one paragraph. They set out in paragraph 9 the relevant legal considerations which concerned a complaint of racial discrimination. There has been criticism by Mr Traynor at this hearing of the legal principles summarised there. The Tribunal correctly stated they had to consider whether, in all the circumstances, it was appropriate for them infer racial discrimination from the facts before them. They stated again correctly that it was for Mr Traynor to prove his case and in considering whether he has discharged that burden, they had to consider the primary facts. If those facts demonstrate that he has been less favourably treated than others and the circumstances are consistent with the treatment being on the grounds of race, "we must consider the explanation given for the less favourable treatment". The Tribunal then referred to the views they had expressed with regard to the 1989 incident. They said that it was not something specifically directed at the applicant. It came to his knowledge and was something which caused him to be upset and concerned (That was the remark made by Mr Holmes which had been overheard). Those concerns were brought to the attention of the Respondent and the Tribunal then stated this:
"... We are entirely satisfied that, far from being ignored, every possible effort was made to deal with that and, indeed, any other perceived problems which the applicant felt he had in this context. We are in no doubt that the respondent did its best to assuage the applicant but, unfortunately, apparently without success. Action was promised, to deal with the specific problems with Mr Holmes, and, by the early part of 1990, this had, we accept, largely, though not yet completely implemented. However, when the applicant returned to work after his period of illness following the Christmas holiday, he still felt that he had problems and we have referred to the circumstances in sub-paragraph (8) above. Mr Traynor's reaction was precipitate and, after due consideration, we are entirely satisfied that the circumstances do not fall within the context of constructive dismissal bearing in mind the appropriate Section of the 1978 Act, and the authority already referred to. Our concluded view is that both claims should be dismissed."
On the question of constructive dismissal, the Tribunal had already stated in paragraph 7 of the Decision, the principles stated in the judgment of Lord Denning in Western Excavating (EEC) v. Sharp [1978] IRLR, page 27. There has been no criticism at this hearing of the summary of the relevant principals.In the hearing today, Mr Traynor, with the assistance of his written argument, has made many different points. The point he has concentrated on is this: that the offer of voluntary redundancy was made to him because he was black; it was an offer made on racial grounds. It was not an offer made to others; it was less favourable treatment and the reason he was offered it was to take the place of the proper use of the grievance procedure to resolve the difficulties which had arisen within Littlewoods. He emphasized that he was a contractually entitled to full and proper use of the grievance procedure. The offer of voluntary redundancy, with payment, was not only racial discrimination and victimisation. It also involved a constructive dismissal. The way in which Mr Traynor put the point of constructive dismissal was that the Littlewoods Organisation had acted in breach of an express term of the contract, the express term was that of mutual trust and confidence. Through the breach of that term, he had been forced to accept an offer of redundancy when there was not in fact a true redundancy situation. He complained that there had been non-compliance with the grievance procedure, and in those circumstances, it had been perverse of the Industrial Tribunal to find that there was no discrimination, victimisation or constructive dismissal.That is a summary of the points which Mr Traynor has made. They are set out in considerably more detail in the Skeleton Argument. He states in that Argument:
"... I believe I was constructively dismissed and I was discriminated against....in the way I was offered redundancy and the terms and conditions offered to me which were contrary to the Race Relations Act...
... I believe the redundancy offer was tantamount to victimisation ...as I believe it was offered this because Littlewoods wanted to be rid of me because of my complaints as a black man against discrimination and victimisation.I believe that no reasonable tribunal could have come to this conclusion on the evidence before them concerning particularly the misuse if the grievance procedure, as I believe I was unlawfully discriminated against in the operation of the grievance procedure, contrary to...the Race Relations Act. Also, the offer of redundancy on racial grounds, as the redundancy offered me was offered in such a way that...it constituted an unfair dismissal, as well as under Section 4(2)(c) of the Race Relations Act. I believe that the tribunal misunderstood the proper meaning of constructive dismissal in failing to grasp the statutory meaning of redundancy.I believe that this series of actions on the part of the employer cumulatively amounted to a breach of the implied contractual obligations of mutual trust and confidence and that the tribunal misapplied the law concerning this...... I also believe that the tribunal came to its decision without taking into account relevant evidence..."He referred to the preliminary case of 9102/90, paragraph 5.Those were all the important points made by Mr Traynor. He made a number of other points which I have not mentioned because they are not permissible points to raise on an Appeal, which is confined to questions of law. In particular, he sought to dispute the Tribunal's finding that three of the four items in the letter of 22 November had been implemented. The Tribunal found as a fact that they had been. We are bound by that finding of fact.We have given careful consideration to all these points, but are unable to find an error of law in the Tribunal's Decision. In our view, the Tribunal made findings of fact and their application of the law to those facts does not involve any error. The Tribunal found as a fact that Mr Traynor was not treated any differently or less favourably, because he was black. On that aspect of the case, the findings of fact had been reinforced for us by references to detailed passages in chairman's notes of evidence.On the question of constructive dismissal, the Tribunal found, as a fact that there was no breach of contract on the part of Littlewoods. There is no appeal against that finding of fact. There was no mis-statement or misunderstanding of the Tribunal of the relevant legal principles concerning constructive dismissal.As to the grounds of perversity, we have been unable to find any grounds on which we could hold that, on the facts before them and applying the law correctly, the Tribunal came to a decision that no reasonable tribunal could have come to.In the circumstances, we accept the submission made by Mr Bradley on behalf of Littlewoods that the submission by Mr Traynor that the offer of voluntary redundancy was not a genuine one and was made to get rid of him, because he was black, was an incorrect one. The employers, Littlewoods, did what they could to deal with Mr Traynor's complaints. They had a meeting with him, they tried to persuade him to stay. He asked for details of a leaving package. He was told of a voluntary redundancy offer open to everyone; he was not treated differently on the grounds of his race. As to the matters that had been agreed to be implemented, there was substantial performance of that agreement. The Tribunal found as a fact that Mr Traynor's leaving on 18 January 1990 was precipitated, having regard to his alleged complaints about Mr Key's treatment of him.In the circumstances, we agree with Mr Bradley that the Industrial Tribunal was entitled, on the evidence, to conclude that there was no discrimination, no victimisation and no constructive dismissal. In those circumstances, the Appeal is dismissed.