MRS H BAYLISS v LONDON BOROUGH OF HOUNSLOW & OTHERS [2000] UKEAT 1177_98_1212

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 1177_98_1212Case No Appeal No. EAT/1177/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS H BAYLISSAPPELLANTLONDON BOROUGH OF HOUNSLOW & OTHERSRESPONDENT
Before
His Honour Judge D M LevyDate 12 December 2000
[1]APPEARANCES For Mrs Bayliss MR A GUMBITI-SIMUTO (of Counsel) Instructed by Messrs Hanne & Co St John's Chambers 10 St John's Hill London SW11 1TN For the Respondent MRS E ANDREW (of Counsel) Instructed by Mr T Welsh London Borough of Hounslow Civic Centre, Lampton Road Hounslow Middlesex TW3 4DN (2nd Respondent) MRS J LEMMINGS (In person) JUDGE LEVY We have before us today an Appeal and a cross Appeal in proceedings commenced by Mrs Henrietta Bayliss which ended in a hearing before a Tribunal sitting in London (North) on a number of days in 1997 and 1998. There were 2 respondents to her applicant:- the Mayor and Burgesses of the London Borough of Hounslow ("the Council") and Mrs J Lemmings. The issues before the Council arose under the Race Relations Act 1996. There were 2 complaints before the Tribunal. There were a large number of days of hearings. Mrs Bayliss was represented by Mr Cheshire of Counsel for a number of days and then in person assisted by her husband thereafter. Mrs Lemmings was in person; Mrs Andrew appeared below and she has appeared before us for the Council. Mr Gumbiti-Simuto appears today for Mrs Bayliss.[2]At the end of the proceedings the Tribunal held that there was no jurisdiction to hear a number of complaints made by Mrs Bayliss because they have been made outside the statutory 3 month period and the Tribunal did not consider it just and equitable in all the circumstances to extend the time. Mrs Bayliss's complaints of victimisation and the unfair dismissal under the 1966 Act in her first complaint against the second respondent failed and was dismissed and Mrs Bayliss's originating application under a second complaint was dismissed for duplication. An application by the Council for costs was refused.[3]There was a preliminary hearing of the Appeal before an Employment Appeal Tribunal headed by Judge Altman on 22 October 1999 when the Tribunal ordered that the Appeal be allowed to proceed to a full hearing in accordance with the judgment of the Employment Appeal Tribunal. Counsel accept that 2 issues were allowed to come forward for consideration before a full Tribunal namely, first was there an error by the Tribunal in deciding that an event which they were considering was not a continuing act in relation to the Race Relation Act in the context of Mrs Bayliss's complaint; and, secondly, if it was not a continuing act, could the events which took place which were the subject of complaint on 19 August 1997 be considered to be a matter for which the Council could be responsible under the provisions of the Race Relation Act. We have not yet heard the cross Appeal by the Council as to costs.[4]As to the grounds of appeal which we have heard, Mr Gumbiti-Simuto made elaborate submissions to us referring to a number of points of law as to whether the incident was a discreet incident and submitted for a number of reasons that it could not possibly be so. Mrs Andrews submitted that on a true analysis it was quite clear that it was a discreet incident and that the Employment Tribunal reached the decision which was within the bounds of its remit and it was one which therefore we were not entitled to reverse, albeit a different Tribunal might have come to a different decision.[5]It would be convenient with no disrespect to Mr Gumbito-Simuto if we first Mrs Andrews' submissions, because that course requires an analysis of the facts. If that analysis is right those points of law put forward by Mr Gumbito-Simuto simply do not get off the ground. The background to the facts in dispute can be gleaned from a chronology which Mrs Andrews produced for us today, read in the context of other documents which we have seen and the extended reasons of the Tribunal.[6]Mrs Bayliss commenced employment with The Council in April 1989 and from 1989 onwards it would be fair to say in summary that she was subject to unpleasant behaviour at the hands of Mrs Lemmings. A number of incidents are set out in the chronology from 1993 and we have heard evidence about other unhappy incidents as well. However what is central to what we have to consider is events to which occurred on and after 6 June 1994, when Mrs Baldwin, (a new manager) started work at Catherine Parr House, where both Mrs Bayliss and Mrs Lemmings worked.[7]Very shortly after she arrived, Mrs Baldwin became aware of Mrs Bayliss' complaints and asked what Mrs Bayliss wanted her to do and suggested that she did not want to make a complaint. Very shortly thereafter there was a most unpleasant incident where Mrs Lemmings said that the Applicant's colour would rub off on her if she cuddled her. Following that incident, Mrs Lemmings, having had lengthy supervisions with the manager, was instructed to amend her behaviour and went on holiday on 17 June for some weeks. Catherine Parr House was closed to children for some weeks thereafter; it re-opened on 15 July 1994.[8]On 20 June 1994 Mrs Bayliss was told that Mrs Lemmings had been spoken to about her behaviour and on that date Mrs Bayliss complained about the bad atmosphere at Catherine Parr House at the time. At that time Mrs Lemmings was not there. On 12 July there was supervision by Mrs Baldwin with Mrs Lemmings and further supervision on 27 July. There was an incident on 30 July when Mrs Bayliss said that Mrs Lemmings did not say "hello" to her, when she and her husband brought a video into the Centre. That was not thought, we understand, to be an offence against Race Relation Act.[9]At the beginning of August 1994, Mrs Bayliss went to seek advice from others. She visited the Racial Equality Council and her Union Representative on dates in August. On 19 August 1994, a letter was sent by Mrs Baldwin to Mrs Lemmings informing her that a complaint of racial harassment had been made against her. This is the important date for the purposes of what is said to have been a discreet incident. On that date Mrs Baldwin also saw Mrs Bayliss. Mrs Baldwin asked Mrs Bayliss if she would like to discuss her complaints with Mrs Lemmings. Mrs Bayliss replied that she would not mind doing that, provided that Mrs Baldwin was there when the conversation took place. After Mrs Baldwin put the position to Mrs Lemmings, the unexpected happened. Mrs Lemmings tackled Mrs Bayliss and asked if she would like to discuss the complaints with her. Mrs Bayliss said she would, provided Mrs Baldwin was present and then Mrs Lemmings made the remarks, complained of. The Extended Reasons on this incident (Paragraph 11, sub paragraph 2) read:
"The only allegation which Mrs Bayliss makes against Ms Lemmings, which falls within the period 8 August to 7 November 1994 is the allegation that on 19 August 1994, she was approached by Mrs Lemmings who asked her in an angry manner "
By the way, why am I the only one who is having all the flak? What about the others who are calling you names?" to which Mrs Bayliss replied that she would only be prepared to speak to her if Mrs Baldwin was present as a witness. Whilst it might have been unwise of Ms Lemmings to have initiated that conversation, she did so on Mrs Baldwin's advice and these comments by Ms Lemmings were not capable of being an act of race discrimination or victimisation against the Applicant within the meaning of sections 1(1)(a), 2 and 4(2)(c) of the Act." Reference is then made to some authorities.[10]Mrs Andrews submits that the matters complained of by Mrs Bayliss prior to the incident of 19 August were all matters to which had been stopped by the time Mrs Bayliss and Mrs Lemmings met on 20 June. That was an end to the discrimination of which Mrs Bayliss could properly complain and those were matters as the Tribunal below found and from this there was no permitted Appeal. They were out of time for a complaint under the Race Relations Act. She pointed to the distance of time from 16 June to the beginning of August. She pointed to the supervisions and steps which Mrs Bayliss was taking, in that time and steps which the Council were taking in that time and submitted this was a discreet incident. We looked to the complaint, which was made by the Mrs Bayliss in her IT1. We take it from Box 10, noting in Box 9 that she said:
"If your complaint is not about dismissal, please give a date when the action you are complaining about took place (or the date when you first knew about it). And the dates given are 26 November 1993 to 19 August 1994."
And Box 10 asks:
"Please give full details of your complaint and she states: Mrs Bayliss answers:- "
I am employed by Catherine Parr House as a residential social worker. During my employment I have been racially harassed and abused by a colleague, Jackie Lemmings. In April 1994 and May 1994 complaints were made about this abuse to the assistant manager Mrs Gill. No immediate action was taken in response to these complaints and I suffered continued harassment. On 8th June 1994 I was interviewed by 3 senior staff in the home about the racial abuse. Once again the managers failed to take action against Ms Lemmings. However Ms Lemmings became aware that a complaint had been made and on 13 th and 14 th August I was victimised as a result of making my complaint. Throughout my employment I suffered immense distress which has seriously affected my health. On 19 th August I was confronted by my harasser once again. After this incident I was advised not to return to work on medical grounds. Therefore, I conclude that a) I was racially harassed by Ms Lemmings. b) I was further victimised as a result of making a complaint against her. c) My employers have delayed taking racial action against Ms Lemmings and are therefore vicariously liable for the racial harassment I have suffered."[11]In our judgment Mrs Andrews is right when she submitted that steps were taken notwithstanding what was said in the complaint, prior to the date given by Mrs Bayliss in her complaint against Mrs Lemmings. We also conclude Mrs Andrews is right when she submitted that the incident in August was a discreet incident. We have set out the terms of it despite the able arguments of Counsel to persuade us that it could not be taken in isolation. We think that the complaint made in August was well after the matters really complained about against Mrs Lemmings had been acted upon by the Council. Therefore on the first ground of the Appeal in our judgment the Appeal fails. We can well understand that the Tribunal could have put its reasons more fully but, from the reasons given, we are satisfied that the Tribunal was entitled to consider that the event was a discreet incident in itself and was not part of the preceding complaints.[12]We turn to the second ground of appeal, which is whether the incident itself could have amounted to racial harassment. Here, we have been directed to the decision in De Souza v The Autumn Bill Association [1986] ICR 514 by both Counsel and we have also been taken by Mrs Andrews to the notes on detriment in at Q93 Harveys:
"Industrial Relations and Employment Law. At page 522 his judgment, of May LJ. After referring to Kirby and Manpower Services, and BL Carrs v Browne and other decisions said: "
Apart from the actual decisions in these cases I think that this necessary follows upon a proper construction of section 4 and in particular 4(2)(c) of the Act. Racially to insult a coloured employee is not by itself enough even if that insult cause him or her distress. Before the employee can be said to have been subjected to some other detriment the court or Tribunal must find that by reason of the act or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work"[13]We look at the circumstances of 19 August. We look at the remark, which was made by Mrs Lemmings. We look at the circumstances in which that remark was made. What the Council did in the context of race relations, given the complaints made by Mrs Bayliss, was nothing other than sensible to suggest that the 2 parties should meet to discuss to see whether the atmosphere could be improved. What Mrs Lemmings did was not something which the Council could have expected but nonetheless they are responsible for it. We therefore go to consider whether the remark made by Mrs Lemmings could be said to be detriment in the sense that Mrs Bayliss would have been disadvantaged in the circumstances in which she had thereafter to work. We can understand that a Tribunal considering that aspect of a case could have come to the decision which the Employment Tribunal did and, therefore not without some hesitation, we think that this aspect of the appeal fails also. We have ruled earlier on in the day that other grounds of appeal were not open to Counsel for The Council on this appeal and therefore the appeal fails.[14]Before we consider the Cross Appeal, we should inform Counsel that having regard to the decision of the EAT at the preliminary hearing, we have reached a provisional conclusion that it was perfectly proper for Mrs Bayliss to continue to mount the appeal on the permitted grounds.