Henry v Foreign & Commonwealth Office [1998] UKEAT 397_98_0112

EAT
Henry v Foreign & Commonwealth Office
[1998] UKEAT 397_98_0112 · 1998-12-01
MR JUSTICE LINDSAY : We have before us as a preliminary hearing, the appeal of Mr D Henry in the matter Henry against the Foreign and Commonwealth Office. After a hearing of some 15 days and four days in chambers, the Industrial Tribunal, under the chairmanship of Mr D N Milton at London (South), promulgated a decision on 13th January 1998. It is some 25 pages of close typing. The decision was as follows:
"The unanimous decision of the Tribunal is that:- (i) on the consolidated cases it finds and declares that the Respondents discriminated against the Applicant on the ground of race
(ii) on the case number 9529/95 the Tribunal finds and declares that the Respondents unfairly dismissed the Applicant(iii) the Respondent is ordered to pay to the Applicant damages and compensation to be calculated in accordance with paragraph 95-99 of the Reasons including damages for injury to feelings in the sum of £7,000.

(iv) the claim of victimisation is dismissed."

So it was a substantial victory for Mr Henry.Mr Henry appeared then as today by Mr C Gutzmore, a lay representative. Mr Henry has lodged a Notice of Appeal on 23rd February 1998, it is accompanied by a paper from Mr Gutzmore headed "Notice of Appeal with Preliminary Ground", which is some four pages of typing identifying what are called "Provisional Grounds of Appeal". I am bound to say it manifestly does not comply with the Practice Direction which is found at page 1624, para. 5040 of the Butterworths Employment Handbook, which requires the Notice of Appeal clearly to identify the point of law which forms the ground of appeal and does not make any provision for "preliminary" or "provisional" grounds. On 6th April 1998 a further instrument was added entitled "Affadavit and Skeleton Argument of Cecil Robert Gutzmore". It was received by the EAT, it is some 25 pages of close typing. So there is a good deal of material before us, albeit in a novel form, novelty of itself not necessarily being an objection.But in the papers thus put in front of us, which have been referred to by Mr Gutzmore this morning, there are a number of contenders for points of law which ought to go to a full hearing. Without addressing them in any specific order of importance, one of them raises the question, in effect, of the period to which the Industrial Tribunal could properly look when examining whether there had or had not been racial discrimination. Of course, the conclusion on that subject cannot have been against Mr Henry in sense that racial discrimination was found in his favour, but if the Industrial Tribunal looked at the wrong period, then it could be that the award was wrong for having looked at too short a period. For example, they did give an award for injury to feelings and one can imagine that if injury to feelings was looked at on the basis that there was a short period of injury, well then, one kind of award might have been appropriate, whereas if, properly speaking, the injury properly to be examined had been spread over a longer period, it might be that a greater award would be proper. So that in that sort of way the notion of the period to which the Industrial Tribunal should have looked for racial discrimination is brought into play. The relevant section is s. 68 of the Race Relations Act 1976 subsection (1) says:
"An industrial tribunal shall not consider a complaint under section 54 unless it is presented to the tribunal before the end of the period of three months beginning with the act complained of was done."
There is the familiar ability to extend if it is just and equitable to do so; that is subsection (4). Subsection (7) provides:

"For the purposes of this section -

...(b) any act extending over a period shall be treated as done at the end of that period; ..."The Industrial Tribunal turned to this issue in their extended reasons at paragraph 74 (page 52 in the bundle) and there they say:
"It is obvious we find that the matters occurring before March 1993 are outside the three month time limit laid down by section 68 Race Relations Act 1976 [the Applicant's first Originating Application having been presented on 28 July 1994] unless the Applicant brings those matters within section 68(7)(b) Race Relations Act 1976."
On this subject they refer to the case of Owusu v London Fire and Civil Defence Authority [1995] IRLR 574 , a decision of the EAT presided over by Mummery P. The Owusu case shows that where racial discrimination is exerted (if that is the right word) as a matter of policy, rule or practice, then one can more readily look back to the earlier period outside the prescribed three months period provided for by s. 68(1). In the bold print that summarises the case, the EAT held:
"... An act extends over a period of time if it takes the form of some policy, rule or practice, in accordance with which decisions are taken from time to time, A succession of specific instances can indicate the existence of a practice which in turn can constitute a continuing act extending over a period."
Well here, on the facts of this particular case, there is no finding of any such policy, rule or practice. What the tribunal do say in their paragraph 97 (page 57 of the bundle) is this:
"... As is we believe obvious from our conclusions above this is a case where without descending into a deep psychological analysis the source of the racial discrimination was what we describe as a mixture of unconscious stereotypical attitudes and approaches and a degree of incompetence which it is impossible for us to define or unravel in detail. ..."
That does not suggest policy, practice or rule in the encountering of racial discrimination, but rather that the matter was unconscious, as they have found. We do not find this to be a case where the Owusu principle is supported on the facts. In this particular case we see no reason to find error of law in the conclusion to which the Industrial Tribunal came, namely, that the matters occurring before March 1993 were outside the period and, to that extent, not proper to be brought into consideration. So on that particular head, we find no error of law.Another important area that is asserted as being an area in which there was or might have been an error of law, is that it is said that the award of £7,000 for injury to feelings should have been considerably higher. The briefer form of Notice of Appeal says at 2.3.1.:
"The Tribunal also made such a low award under the injury to feeling head because it is - against its expressed intention - racially biased and was unable to accept that a vigorous young black man of over six feet in height must be exaggerating feeling of hurt from the apparently 'genteel' racial discrimination of the Foreign and Commonwealth Office."
On the subject of injury to feelings, the Industrial Tribunal said this at paragraph 98 (page 57 of the bundle):
"We bear in mind that the Applicant is to be compensated for the circumstances leading up to the controversial final appraisal and also to a degree for the failure by the Respondent's machinery to provide a just solution to the complaints which he raised. For all the foregoing reasons we have come to the conclusion that the proper figure to reflect the injury to feelings in this case is a figure of £7,000."
So that the tribunal do set about, as best they can, a quantification of an award under this heading.It has to be borne in mind that an award of this kind does not represent any exact scientific calculation. A given sum cannot be proved to be right. But equally, it cannot be proved to be wrong. It is not here a figure so out of line with what one might commonly expect to provoke the thought "Surely that must be wrong". We cannot say that the figure of £7,000 was an "impermissible option", to use the language of another case. We do not find in the award as a whole any justification for the attack made in paragraph 2.3.1. that I cited, that the Industrial Tribunal itself, by the nature of its award, indicated that it was itself racially biased.Another heading of complaint is that the Industrial Tribunal should have awarded aggravated damages. This is dealt with in paragraph 96 of the tribunal's reasons (page 57 of the bundle) at some length. First of all in paragraph 96 the tribunal said this:
"By the time we had reconvened in chambers to reach our conclusions and decision in this case a decision had been handed down by the Court of Appeal in Northern Ireland in the decision of McConnell v Police Authority for Northern Ireland [1997] IRLR 625. We considered that decision and the decision of Armitage Marsdon and HM Prison Service v Johnson [1997] IRLR 163. It seems to us as a humble Tribunal of first instance that there is a degree of disagreement between the decisions and reasons in each particular case as to the proper approach to be adopted by a Tribunal in these cases. In the result, however, we did not feel it necessary to be obliged to each a conclusion as to the proper approach to aggravated damages, i.e. whether it should be approached as part and parcel of the overall award for injury to feelings or whether it should be viewed as a separate parcel of damages in addition to any damages for injury to feelings."
The tribunal went on in paragraph 97:
"We accept Mr Gutzmore's argument that it is deplorable that a body such as the Foreign Office should have handled a dismissal in this fashion and we have set out our conclusions on that issue above. We considered whether the Respondent in this case behaved in "a high handed, malicious, insulting or oppressive" manner. As is we believe obvious from our conclusions above this is a case where without descending into a deep psychological analysis the source of the racial discrimination was what we describe as a mixture of unconscious stereotypical attitudes and approaches and a degree of incompetence which it is impossible for us to define or unravel in detail. Whilst the result in our finding plainly is a case of racial discrimination we do not accept that this is a case which we should approach as one where the damages include an element to reflect aggravation."
Of course, if there is no aggravated position which needs to reflected, then the issue of whether it should properly be approached as part and parcel of injury to feelings or should be a separate award, never arises. We do not feel that the approach of the Industrial Tribunal to the question of aggravated damages indicates any error of law.Another point that is raised by Mr Gutzmore is that Mr Henry was unlawfully stopped from completing his probation, which was extended from time to time, and thus denied the benefits which would have accrued to him had he had the chance of completing his probation. To a degree, of course, it is speculative whether he would have successfully completed it or not, leaving aside the racial discrimination. It is hard to tell. We do not see in the decision of the Industrial Tribunal any indication that submissions or evidence on this particular point were put to the Industrial Tribunal. They do not deal with it; they do not rule it in and they do not rule it out. The loss that the Industrial Tribunal did look to was a loss of net wages. What they say in paragraph 95 is:
"The Applicant is entitled to be compensated for the loss which he has sustained as a result of the discrimination and his unfair dismissal. It is our conclusion therefore that he is entitled to the net wages which he would have earned as an Administrative Officer from the expiry of his notice in December 1994 until the commencement of his new employment, 29 September 1996, less appropriate deductions for tax and national insurance. ..."
There has as yet been no remedies hearing. It seems to us that, at the remedies hearing, where it is likely that detailed figures will need to be gone into, the question of whether some award especially directed to the question of whether Mr Henry suffered loss from being unable by reason of racial discrimination and dismissal to complete his probation, is a matter that can be gone into then. If there is anything in the point, it not seeming to have been raised previously, it can be raised then. It does not seem to be so much a matter of appeal but rather as a subject which has not yet been dealt with but which can be dealt with in the future.Then next, interest. The notes which Mr Gutzmore provided raise a point about interest. At 2.6 it says:
"The Tribunal erred in law in awarding the Appellant interest to run for only half the period of loss of earnings. It should have applied to the whole period. While this matter was in the discretion of the Tribunal this particular exercise of it is unreasonable and reveal a bias against the Applicant which falls to be explained as racial in its nature."
What the Industrial Tribunal said on the subject of interest was this at paragraph 99 (page 58 of the bundle):
"... The Respondent's solicitors are instructed to calculate the net pay which would have been earned (including of course any intervening pay rises); to calculate an overall total including the damages for injuries to feelings less the sums already received by the Applicant and to add to that sum interest at the rate of 8% payable from the midpoint of the termination of the Applicant's employment until payment of the sum in question. ..."
If interest had been awarded on the whole final aggregate award from December 1994, that would quite unreasonably represent the position as it would have been if that final aggregate of lost earnings had been owing from the beginning of the period from December 1994, rather than, as was the fact, that that aggregate only fell due as an aggregate at the end of the period, namely, in September 1996. A simple way which is quite often used in tribunals to provide a rough and ready, but not necessarily unjust, system in order to reflect that there was not the whole sum owing for the whole of the period (because at the beginning of the period there would only, in this case, have been one month's or one week's salary due and so on) is to pay interest on the whole sum but only over half the period. I suppose, alternatively, much the same result could be arrived at by awarding interest on half the sum for the whole of the period. It is a thing that is quite frequently done. It certainly does not indicate bias, racial or otherwise. But, when one looks at the Regulations more strictly, there is a real doubt as to whether such a system is open under the Regulations. The Industrial Tribunals Act s.14, the Industrial Tribunals Interest Order 1990 and the Race Relations Interest Regulations 1994 prescribe systems which, arguably at least, are not honoured in this award by the rough and ready system which the Industrial Tribunal here preferred. So there is here a prospective point of law. Of course it could well be, it would need some careful mathematical thought to be applied - that if the system required by the Regulations was adopted then less interest would ultimately become payable to Mr Henry than is payable under the system which the Industrial Tribunal here ordered or required to be computed. So we will come back to the question of interest because it seems to us there is a pragmatic way of dealing with it. But here, in this area, there is at any rate a real point of law. Whether it is worth arguing is another matter.As another heading Mr Gutzmore complains about the Industrial Tribunal's treatment of the question of victimisation. This is dealt with in paragraph 80 of the Industrial Tribunal's reasons (page 3 of the bundle) and what they say there is this:
"By an amendment made during the course of the proceedings Mr Gutzmore on behalf of the Applicant put forward a claim of victimisation contrary to section 2 Race Relations Act 1976. The full grounds of that claim are set out in his letter to the Tribunal office dated 25 March 1997. Dealing with these matters in turn it is our conclusion that although the decision to dismiss the Applicant was seriously flawed by reason of racial discrimination and was unfair it was not done either intentionally or unintentionally as some kind of retribution upon the Applicant. As we have stated above in our detailed reasons it is our conclusion that the Respondent went to a considerable amount of time and trouble to carry out an investigation of the Applicant's complaints of racial discrimination.

(d) "

So the claim was added by late amendment. It is always dangerous not to use the words of the Act and one does not find the words "retribution" or "penalise" in the Act. But the overall sense of that paragraph, which we have just cited, is clear. We do not detect in it a conclusion to which no reasonable Industrial Tribunal properly instructing itself could have come. So, speaking generally of victimisation, we detect no error of law. Of course, as is familiar and well-known, the EAT is concerned only with errors of law.A particular kind of victimisation is selected also for treatment by Mr Gutzmore. He says that the respondent's internal processes had elected to pay to Mr Henry no compensation and that that itself was a form of victimisation. In this particular case, it is not entirely clear which "protected act" was said to have been involved. One has to be quite cautious and detailed about the timing of things, but, assuming that the protected acts were the same as those cited in paragraph 80 of the decision, what does the tribunal say about that? Well, they say this in paragraph 82 (page 54 of the bundle):"Finally on this point, Mr Gutzmore argued that the decision by those responsible in the Respondent's management to award "no compensation" was a further example of victimisation. ... We were not satisfied that the Applicant proved that he was entitled to payment of compensation in the circumstances of his dismissal and we do not accept therefore that he was treated less favourably than a notional white comparator.

(d) "

On that head of claim Mr Henry failed to satisfy the Industrial Tribunal that he was less favourably treated and failed also, even assuming that he might have been less favourably treated, in showing that that less favourable treatment was by reason of a "protected act" or a suspicion or threat of it. What Mr Gutzmore says about that is this in 2.7:
"... Why did the Tribunal rely on the unfair and legally erroneous criterion that it was 'not satisfied that the Applicant had proved that he was entitled to compensation ...'"
We do not find that an incorrect approach. The onus of proving victimisation plainly lay upon Mr Henry and so it was not incorrect to approach the matter in the way that the tribunal did. There is no material before us that suggests that the conclusion at which the Industrial Tribunal arrived was not one that could properly have been arrived at. So, again, there is no error of law on that subject.There is, however, an area that has caused us some concern. It is whether the Industrial Tribunal took the view that Mr Henry had, by his actions, contributed to the existence of racial discrimination against him. That we found to be a difficult area; not at all one that is simple. If the award in his favour was diminished on that account, there would, we think, be a real arguable point of law proper to send the matter to a full hearing. But was there any diminution of the award on such an account? There was a diminution or there might have been a diminution by reason of Mr Henry's conduct or performance. It is a familiar area, when unfair dismissal comes to be discussed, that an employee has to some extent contributed to his own dismissal. That has no connotations of race as such. It is a question that commonly arises quite irrespective of race. But looking at paragraph 88 (page 55 of the bundle) what the Industrial Tribunal says is this:
"It is we hope clear on the findings which we have set about above that we accept on all the evidence before us and of in particular Mr Lewis and to a limited extent Mr J M Brown that the Applicant was indeed guilty within his last few months of employment whilst he was working within their department of some instances of poor performance and incompetence. We have found as we set out above, that the assessment of the degree of that poor performance and incompetence by management to have been exaggerated and tainted by racial discrimination."
So they held themselves entitled to regard Mr Henry as having contributed to some extent by reason of poor performance and incompetence. And then there is a long discussion that seems to be directed to the subject of how far, if at all, a man can have contributed to racial discrimination against himself and whether there should be some adjustment on that account. In paragraph 91 (page 56 of the bundle) they conclude:
"... We find it impossible to define the matter in any more precise fashion than that and it is certainly quite impossible for us to seek to allocate any sort of percentage in this causation exercise."
Doing the best we can, because the reasoning is not as clear as it might have been, we see the case as one in which there could properly have been some diminution by reason of incompetence on Mr Henry's part and poor performance on his part, but that the Industrial Tribunal discounted ultimately any reduction on the basis that he had in some way contributed to such racial discrimination as he suffered. Accordingly, although the point has troubled us, we ultimately do not see it as a point that justifies being taken further, because it would seem that no percentage was attributed to it.Mr Gutzmore makes a broad complaint and, looking again at the shorter form rather than at the affidavit, in 2.1 of the provisional grounds of appeal he says:
"The Tribunal even more unfortunately gives the impression of a systematic bias against the Appellant: this is reflected in many of its findings of fact which are against the weight of the evidence; ..."
This form of unspecified and unreasoned criticism really does not add any weight to the appellant's case. In course of argument, or certainly in the course of reading the papers put in front of us by the appellant, we have sometimes had to pinch ourselves to remember that this is a case where racial discrimination was found to have been proved, so that to that extent Mr Henry succeeded, that unfair dismissal was held in his favour, and that a not insubstantial, (indeed, in the terms of awards in this area) a substantial award in his favour emerged both as to loss of wages and injury to feelings.Treating the matter broadly, we have been able to detect no errors of law that cannot usefully be corrected, if they need to be, at the remedies hearing.What we shall do is this. We shall direct that at the remedies hearing Mr Henry shall be at liberty, if he sees fit, and that the Foreign and Commonwealth Office also shall be at liberty, if they see fit, to adduce evidence and to make submissions as to the effect, if any, of Mr Henry's being stopped from completing his probation period and as to any award in his favour proper on that account. They will be at liberty, if they see fit, to adduce that evidence and to make submissions at the remedies hearing. As we indicated earlier, nothing seems to have been yet done on that subject and we leave that subject over. It is not so much a matter of appeal as a matter properly to be left to the remedies hearing. But, for clarification, we indicate that the parties are to have liberty of the kind that we have just described.Looking then to the only remaining question, which was interest, on which we found that there was a prospective real point of law, what we say is this. If within 14 days of receiving the transcript of today Mr Henry indicates to the Foreign and Commonwealth Office in writing that he wishes the award of interest in paragraph 99 of the Industrial Tribunal's decision to be set aside, then, if he does, then both parties will be free, at the remedies hearing, to make submissions and adduce evidence on the subject of interest, unless, upon receiving that written notice from Mr Henry, the Foreign and Commonwealth Office within 14 days from its receipt indicate that they would prefer the matter first to go to a full hearing at the EAT. The object of that somewhat complicated procedure is that Mr Henry will have an opportunity first to look with some care at the detailed Regulations to which we have drawn attention, and work out really whether he is actually advantaged by taking the question of interest further. It could be, as we mentioned earlier, that he is not. It could be that the difference between a strict computation and the rough and ready method adopted by the Industrial Tribunal is trivial. It could be, therefore, that when he has had an opportunity of looking at it in some detail and when he has realised that the reference to interest being payable only on half the aggregate sum is no way racial or biased but rather is a quite familiar rough and ready technique, he might decide that the matter just is not worth taking further. Equally, the Foreign and Commonwealth Office, if there is here a real point of law, would be entitled to have it dealt with at a full hearing in the EAT if they really wished that to be the case, but, on the other hand, they might recognise that quite the simplest course would be the one that we have suggested, namely that if Mr Henry wishes the point to be raised at all, it is best left over to the remedies hearing. And so for that reason we have given the Foreign and Commonwealth Office 14 days in which to require there to be a full hearing on the point, if it is really necessary. We hope in that way, by giving both parties an opportunity to think about the matter, that a full hearing on the subject is avoided and that the subject, if it needs to be raised at all, can be raised at the remedies hearing. That represents a point of law that is proper to go to a full hearing, but as to which a full hearing may be avoided in the way in which we have indicated.On the other points that have been raised, we have not gone in great detail on every point in the affidavit by Mr Gutzmore, but, on the points that we have considered, we have found no error of law and accordingly, with the exception described, having given that direction in relation to interest and having given that indication as to the loss, if any attributable to the failure to be able to complete probation, we dismiss the appeal.