THE AARONCARE PARTNERSHIP v MRS T DAVIES [2000] UKEAT 280_99_0712

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] EAT 280_99_0712Case No Appeal No. EAT/280/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
THE AARONCARE PARTNERSHIPAPPELLANTMRS T DAVIESRESPONDENT
Before
Mr Justice CharlesLord Gladwin of CleeDate 7 December 2000
[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT For the Respondent MISS EUDORA OKORO (Representative) Instructed By: Merseyside Trade Union Community & Unemployed Resource Centre 24 Hardman Street Liverpool L1 9AX MR JUSTICE CHARLES : The parties to this appeal are Aaroncare Partnership who is the Appellant before us and was the Respondent before the Employment Tribunal and Mrs T. Davies.[2]The appeal and the proceedings have a fairly long history.[3]At no stage have the Appellant partnership appeared. At each stage they have invited firstly the Employment Tribunal and then this Tribunal to deal with their case on the documents and their written assertions or submissions.[4]We note that a number of the letters that have been written on behalf of the Appellant partnership have been written by Mr B.R. Camp who is shown as a partner. To-day we have been told that he is a solicitor. The content of the letters written by Mr B.R. Camp on behalf of the Appellant partnership (and other letters written on their behalf) indicate that they have been written by (or with the assistance of) a person with legal qualifications.[5]The appeal is against a decision of an Employment Tribunal sitting at Liverpool on 30 November 1998. The Extended Reasons for their decision were sent to the parties on 7 January 1999. Their decision was that:
"(i) the applicant's complaint that the respondents had unlawfully discriminated against her by victimising her contrary to the provisions of the Sex Discrimination Act 1975, as amended, is well-founded; (ii) the respondents are ordered to pay the applicant the sum of £1,500.00 as compensation."
[6]The claim was based on events that took place in 1997 and the hearing before the Employment Tribunal had initially been adjourned to await the decision of the European Court of Justice in Coote v Granada Hospitality Ltd [1999] ICR 100 . Progress of the appeal[7]This appeal came before this Tribunal by way of preliminary hearing on 15 June 1999. I was the Chairman of that Tribunal.[8]At that stage the grounds of appeal relied on were as follows:
"On the 3rd November 1997 the Applicant signed ACAS Form COT3 (IT) accepting the sum of £500.00 ' in full and final settlement ... of all and any claims which she could bring against the Respondent arising from her contract of employment and the termination thereof '. In such circumstances the Tribunal had no jurisdiction to hear any further claim by the Applicant in relation to her contract of employment with the appellant. This lack of jurisdiction was raised with the Tribunal by the appellant and a preliminary hearing requested on this point of law. The Tribunal refused to hold a preliminary hearing and has thus issued an award based on the hearing that it was not entitled to call."
[9]In paragraphs 13 and 14 of my judgment on that preliminary hearing I said this:
"13 For the reasons given we would be minded to hold that there is no reasonably arguable point raised on this appeal. However, we think it is right that as the Appellant has again chosen not to appear that before dismissing this appeal we should give them an opportunity to make representations to us on matters of law, either in respect of the application in the United Kingdom of the Coote case, or to advance further arguments based on the compromise relating to the jurisdiction of the Employment Tribunal. 14 We shall therefore direct that the Appellant be given 14 days from notification by this Tribunal of our decision to fix a further preliminary hearing at which they can (with or without representation) seek to persuade us, or another Tribunal, that the views expressed in this judgment are wrong. If they do not apply to obtain a date within that 14 day period this appeal is dismissed for the reasons given in this judgment."
[10]A transcript of that judgment was received by the Appellant partnership on 20 July 1999 and on 29 July 1999 they applied for a further preliminary hearing to be fixed.[11]That preliminary hearing came before a differently constituted Tribunal chaired by the President on 12 January 2000. Again, the Appellant partnership did not appear but we understand that they lodged a skeleton argument.[12]On that occasion this Tribunal were of the view that the arguments advanced on behalf of the Appellant partnership in support of their appeal did not raise reasonably arguable points of law. In paragraph 2 of his judgment the President said this:
"2 … In its Notice of Appeal Aaroncare persists in barking up the wrong tree. It is quite plain that a case can be made for victimisation after dismissal of earlier proceedings … 3 Fresh victimisation is here complained of by a fresh IT1 and Aaroncare's repeated cry that it settled the earlier proceedings does not assist it at all. …"
However, the President went on to say that from the study by that Tribunal of the papers a number of points did appear to them to be arguable. He then identified those points and in paragraph 8 of his judgment said this:
"8 It is difficult to feel any sympathy for Aaroncare which either was or threatened to be vindictive and which had not taken the trouble to appear at the Employment Tribunal or indeed to appear before us today. But, if, within 21 days after it being sent a copy of the transcript of this judgment Aaroncare amends the Notice of Appeal to take all or any of the four points we have just described we shall permit those added points only to go to a full hearing. We do not permit the grounds stated in paragraph 6 of the current Notice of Appeal to go to a full hearing."
[13]Unsurprisingly, the Appellant partnership took up that opportunity and served an amended Notice of Appeal on 25 February 2000.[14]It is this amended Notice of Appeal which comes before us today. We shall return to its precise terms but at this stage we note that it does not take all of the points described in the judgment of the President. The IT1 in this case[15]This is clearly an important document on this appeal because at the heart of the reasoning of this Tribunal in the judgment delivered by the President on 12 January 2000 are the points he made therein concerning the importance of staying within the strict parameters of the IT1 and the Tribunal were of the opinion that:
"5 …The only 'pleaded' form of victimisation, was circularisation by Aaroncare in writing to local residential and nursing homes of the alleged reasons for Mrs Davies' dismissal. …"
[16]In our judgment that is an incorrect reading of the grounds set out in the IT1.[17]In box 1 of the IT1 the claim was described as a claim for "Sex Discrimination, Victimisation". The details of the complaint were contained in an attachment. This was in the following terms:
"(1) The applicant brought proceedings, specifically a claim of sex discrimination, against the respondent in June 1997 (Mrs T Davies v Arroncare (sic) Partnership 2102994/97). (2) The case was listed to be heard on 31st October 1997 but settled out of court via ACAS on 29th October 1997. (3) The applicant's representative was sent the settlement cheque from the respondent on 14th November 1997. The respondent also sent a covering letter and the signed ACAS COT 3 form. (4) The respondent's covering letter stated, 'we confirm that all residential and nursing homes in the area will be advised of the reason for your client's dismissal from our employment'. This did not form any part of the out of court settlement worded agreement. (5) The applicant's representative wrote to the respondent on 12th December 1997 asking the respondent, inter alia, which residential / nursing homes had been contacted and what reason had been given for the applicant's dismissal." (6) The respondent's reply dated 6 th January 1998 stated, 'we do not wish to enter into any further correspondence with you in respect of Mrs T. Davies.' (7) It is submitted that the applicant has suffered victimisation as she: (a) brought proceedings against the respondent in June 1997. (b) suffered less favourable treatment than other care assistants who were not kept on by respondents during their trial period due to unsuitability. It is submitted that the respondents do not write to all the nursing homes in the area to advise of an ex-employee's reason for dismissal unless they had been involved in malpractice or abuse of any kind. The reasons provided for the applicant's dismissal by the respondent were merely unsuitability and 'she was not capable of complying with the company's work ethic.' (c) Less favourable treatment was due to carrying out the protected act. It is submitted that the fact that the applicant's representative was informed of the above extraordinary action when the settlement cheque was sent to him is the clearest indication of this."
[18]In our judgment if that document is read alone it clearly contains a complaint based on the threat referred to in paragraph 4 whether or not it has been carried out. Indeed we would go further and say that that is the primary complaint made in that document[19]As we read the President's judgment this Tribunal thought that paragraph 7(b) of the details of the complaint has the consequence, or supports the conclusion, that the only complaint pleaded, or made, thereby was that the threat had been carried out (see paragraph 6 of that judgment). We do not so read paragraph 7(b) in its context. As we read the details of the complaint the primary meaning and effect of paragraph 7 (b) is that it is an explanation why the threat was vindictive and founded a claim for discrimination by way of victimisation (whether or not it was carried out).[20]In our judgment the conclusion that such a claim (i.e. one based on the threat whether or not it was carried out) is included within the IT1 is confirmed by the other exchanges between the parties prior to the hearing before the Employment Tribunal and, in particular, the letter referred to in paragraph (xii) of the Extended Reasons dated 9 February 1998 which contains the following paragraph: "The alleged victimisation is that the respondent stated 'we confirm that all residential and nursing homes in the area will be advised of the reason for your client's dismissal from our employment.'[21]In our judgment if one stands back and asks the question as at the date of the hearing before the Employment Tribunal whether the Appellant partnership (the Respondents before the Employment Tribunal) could have alleged that they did not understand that a claim of discrimination by way of victimisation was being made against them on the basis of the threat contained in the letter of 14 November 1997, whether or not it had been carried out, we are of the clear opinion that the answer is that they could not.[22]In our judgment this view is supported by the fact that the Appellant partnership have never asserted that they did not understand that the claim made against them included one that the threat (whether or not it was carried out) was relied on by the Applicant as a basis for her claim.[23]The threat proves itself because it is contained in the letter dated 14 November 1997.[24]In respect of the claim based on the threat if it was not carried out the questions that were asked and are set out in the Extended Reasons for the decision of the Employment Tribunal as to what references (if any) the Appellant partnership had given are relevant to the issues of less favourable treatment and causation and thus to both parts of the statutory question posed by s. 4 Sex Discrimination Act 1975.[25]Those questions are also relevant to the alternative claim based on references made in pursuance of the threat (or possibly before the threat was made). We add that in our view the details of complaint annexed to the IT1 read alone, or read together with the further exchanges between the parties prior to the hearing before the Employment Tribunal, is that a claim was also being made by the Applicant that residential and nursing homes in the area had been provided with unfair or unjust information relating to the Applicant. We therefore agree with the judgment of the President on the second preliminary hearing that such a claim was made in the IT1 but disagree that it was the only claim made thereby.[26]Again, in our judgment, the Appellant partnership (as the Respondents before the Employment Tribunal) could not reasonably have said that they did not understand that the claim being made against them included such an allegation. In our judgment, this conclusion is supported by the fact that the Appellant partnership did not raise this point prior to the judgment of this Tribunal on the preliminary hearing in January 2000 and the fact that on this appeal the Appellant partnership are asserting that the IT1 made such a claim.[27]Accordingly, in our judgment, on a fair reading the IT1, read alone and together with the exchanges between the parties prior to the hearing before the Employment Tribunal, made it clear that the Applicant was making a claim for discrimination by way of victimisation on the following cumulative or alternative bases:(a) the threat contained in the letter dated 14 November 1997 whether or not it had been carried out, and further or alternatively(b) the provision of unfair or unjust information by the Appellant partnership to nursing homes in the area. The Extended Reasons for the decision of the Employment Tribunal[28]These are lengthy and we shall not set them out in this judgment. They should however be read with this judgment and, in our view it would be appropriate for any reader of this judgment to read the Extended Reasons at this stage. Comment on and in respect of the Extended Reasons[29]As appears from the Extended Reasons an issue before the Employment Tribunal was whether an unfavourable reference in respect of the Applicant had been given after the termination of her employment by the Appellant partnership (ie after March 1997). In this context in the exchanges leading up to the hearing before the Employment Tribunal the Appellant partnership had denied that they had given any references in respect of the Applicant.[30]As to this issue it is apparent from the Applicant's statement and the Chairman's Notes that the Employment Tribunal had before them two letters. The first letter is dated 17 October 1997 and is written by the body representing the Applicant to a Ms Joan Atkinson at Knowsley Care Society at Fazakerley House, Park Road, Prescot, Liverpool. That letter is in the following terms:
"Re: Mrs T Davies I act on behalf of the above named. My client informs me that in late March or early April 1997 she was offered a job as a care assistant for your company, subject to references. My client claims that the job offer was withdrawn following a bad verbal reference from her former employer, Aaroncare Partnership, Aaron Grange Nursing Home. I would be grateful for your prompt response."
The reply to that letter is dated 27 October 1997 and is in the following terms:
"Re Mrs T Davies In answer to your letter dated 17.10.97 and following our telephone conversation of yesterday. Earlier this year, Mrs Davies applied for a 14 hour weekend post with our Society. Following a successful interview Mrs Davies was informed that the post would be offered to her subject to satisfactory references. As the reference I received did not meet company requirements, the post was not confirmed."
[31]This exchange of correspondence took place shortly before the settlement of the first claim made by the Applicant against Aaroncare Partnership for sex discrimination. That claim was due to be heard on 31 October 1997. It was settled shortly before that and on 3 November 1997 the Applicant signed ACAS form COT 3 (IT) which was the form identifying the settlement which was originally relied on by the Appellant partnership as the basis for its defence to the second claim and this appeal.[32]That correspondence includes a letter which makes it clear that the Applicant was asserting that it was Aaroncare Partnership that had given her a poor verbal reference before the threat contained in the letter dated 14 November 1997 was made. This exchange of correspondence, which was before the Employment Tribunal, therefore makes it clear that the Applicant was asserting at the time the earlier proceedings were on foot and before the threat was made by Aaroncare Partnership in their letter of 14 November 1997 that Aaroncare Partnership had given her a poor reference after she left their employment.[33]In our judgment, having regard to(a) the Applicant's statement and oral evidence as appearing from the Chairman's Notes,(b) the view that the Employment Tribunal took of the Applicant (see paragraph 11 of the Extended Reasons),(c) the exchanges between the parties prior to the hearing and set out in the Extended Reasons,(d) the history of the Applicant's employment as set out in the Extended Reasons and the documents referred to therein, and(e) the correspondence we have cited above the Employment Tribunal had evidence before them from which they could make the inference and reach the conclusions that they did in paragraph 18 of the Extended Reasons (i) that after her employment with the Appellant partnership had terminated the Appellant partnership had given a reference in respect of the Applicant which had resulted in her not obtaining a job, and thus (ii) that answers given in this respect by the Appellant partnership were untrue.[34]As to this we add that it is apparent from what we have said that the Employment Tribunal had more information before it than this Tribunal at the preliminary hearing on 12 January 2000 thought it had (see paragraph 3 of the judgment of the President).[35]In our judgment the conclusion reached by the Employment Tribunal as to this earlier reference is relevant in respect of the claim for discrimination by way of victimisation based on the threat made in the letter of 14 November 1997 (whether or not it was carried out after the letter was sent) in three respects (which are interconnected) namely:(a) whether the Applicant was justified in being upset on receiving the threat and whether it amounts to less favourable treatment and a detriment,(b) causation, and(c) quantification of damage[36]The above conclusions as to the finding concerning the earlier reference have the result that the first point which this Tribunal on 12 January 2000 thought was reasonably arguable and was identified in paragraphs 3 and 4 of the President's judgment, does not in our judgment on closer analysis provide a good ground of appeal.[37]The findings as to the earlier reference would also in our judgment be relevant to a consideration of the question whether the Appellant partnership carried out the threat contained in the letter of 14 November 1997.[38]As to that (in agreement with the view reached by this Tribunal on the preliminary hearing held on 12 January 2000) in our judgment the Employment Tribunal do not make any findings as to whether the threat was carried out and in paragraph 19 of the Extended Reason the Employment Tribunal treat the threat (whether or not it was carried out) as the basis of the claim.[39]These conclusions as to the basis of the finding on liability made by the Employment Tribunal cover the second and third points raised by this Tribunal at the preliminary hearing on 12 January 2000 (see paragraphs 5 and 6 of the President's judgment) and have the consequence that they do not on analysis provide good grounds for appeal. Our conclusions as to the reasoning of the Employment Tribunal in reaching its finding that the Applicant was a victim of discrimination by way of victimisation and the IT1[40]As appears above in our judgment the Employment Tribunal reached this conclusion on the basis that whether or not it was carried out the threat contained in the letter dated 14 November 1997 founded the claim.[41]In our judgment in reaching that conclusion and in their quantification of damage the Employment Tribunal were entitled to take into account the issues relating to the earlier reference and the communications between the parties leading up to the hearing before the Employment Tribunal.[42]Further, in our judgment, the basis of this claim was included within the IT1 whether it is read alone or together with the communications between the parties leading up to the hearing before the Employment Tribunal. The amended grounds of appeal[43]These are as follows. "The appellant withdraws the ground of appeal set out in paragraph 6 of its Notice of Appeal dated the 16 th February 1999 and substitutes therefor the following grounds of appeal:(a) That the Regional Tribunal erred in Law in considering the subject that an unfair or unjust reference had been given by the appellate despite: (i) there being no allegation in the Respondent's Form IT1 as to references or (ii) no proof having been submitted that the appellant had given any reference or (iii) no evidence had been adduced that the Respondent had identified the appellant as an employer from whom a reference could be sought or (iv) no evidence had been adduced that the new prospective employer had approached the appellant for a reference.(b) That the burden of proof upon the Respondent to show that the appellant had written letters in relation to the alleged reasons for the Respondent's dismissal from its employment had not been discharged by the Respondent and that the inference drawn by the Regional Tribunal was without foundation and thus the Regional Tribunal erred in Law.(c) The Respondent's Form IT1 did not complain of a threat to write to local nursing homes but complained of the actual writing of the letters. In such circumstances the inference drawn in paragraph 19 of the Regional Tribunal's decision was an inference outside the terms of the Respondent's complaint and thus the Regional Tribunal erred in Law.(d) If the Regional Tribunal held no more than there had been a threat that the Respondent would write to others then that, ie the threat, was not a case which the Respondent's IT1 required the appellant to meet and in such circumstances the Regional Tribunal erred in Law in considering further the question of whether letters had been written."[44]As we have mentioned these grounds of appeal do not follow precisely the formulation of the argument contained in the judgment of the President given on the preliminary hearing held on 12 January 2000.[45]In particular these grounds of appeal do not raise the point referred to in paragraph 7 of that judgment that it might be arguable that a mere threat not carried out in relation to a former employee would not satisfy the Coote v Granada test.[46]Paragraph 27 of the judgment in Coote v Granada Hospitality Ltd [1999] ICR 100 , is in the following terms: "27 However, contrary to that Government's submissions, having regard to the objective of Directive (76/207/E.E.C.), which is to arrive at real equality of opportunity for men and women ( Marshall (No.2), p.931, para. 24), and to the fundamental nature of the right to effective judicial protection, it is not, in the absence of a clear indication to the contrary, to be inferred from article 7 of the Directive that the legislature's intention was to limit the protection of workers against retaliatory measures decided on by the employer solely to cases of dismissal, which although an exceptionally serious measure, is not the only measure which may effectively deter a worker from making use of the right to judicial protection. Such deterrent measures include, inter alia, those which, as in the present case, are taken as a reaction to proceedings brought against an employer and are intended to obstruct the dismissed employee's attempts to find new employment. Having regard to that paragraph in our judgment the Appellant partnership were correct not to include in their Notice of Appeal an assertion that if the threat contained in the letter of 14 November 1997 had not been carried out that threat did not, of itself, satisfy the approach or test in Coote v Granada .[47]It will be apparent from what we have already said that, in our judgment the amended grounds of appeal do not raise points which establish that the Employment Tribunal erred in law. We shall deal with them briefly in turn.[50]Ground (a). In our judgment for the reasons we have given the Employment Tribunal did not err in law in considering the issue whether an unfair or unjust reference had been given. This earlier reference was not referred to expressly in the IT1 but, as we have said, in our judgment it was relevant to the claims made therein. Further, it is apparent from the communication between the parties leading up to the hearing before the Employment Tribunal that references given by the Appellant partnership since the termination of the Applicant's employment with them, were in issue. We repeat that in our judgment there was evidence before the Employment Tribunal upon which they were entitled to reach the conclusion that they did. Indeed, we would go further and comment if we had taken the same view as the Employment Tribunal of the Applicant as a witness having regard to the further matters listed in paragraph 33 above we would have reached the same conclusion.[51]Ground (b). The Employment Tribunal accept that the burden of proof was on the Applicant. As we read this ground implicit therein is an assertion that the Employment Tribunal found that the threat had been carried out. As we have explained in our judgment the Employment Tribunal do not make that finding. However, we would add that in our judgment they would have been entitled to do so on the evidence before them and in particular on the matters identified in paragraphs 30 to 33 above.[52]Ground (c). In our judgment the IT1 did complain of a threat (whether or not it had been carried out). It follows that in our judgment the conclusion in paragraph 19 is one which accords with a claim made in the IT1 and was one which the Employment Tribunal were entitled to reach.[53]Ground (d). As we read this ground it is internally inconsistent. The first part of the ground is essentially a repetition of ground (c) and the second part is essentially a repetition of ground (b).[54]More generally, as appears above, in our judgment the amended grounds of appeal proceed on a misinterpretation of the nature and extent of the claim made in the IT1. As we have explained in our judgment the IT1 included a claim that the threat contained in the letter of 14 November 1997 (whether or not it was carried out) constituted discrimination by way of victimisation. In our judgment the Employment Tribunal made no error of law in concluding that it did. Result[55]We dismiss this appeal. Further comment[56]The conclusion we have reached means that it is unnecessary for us to consider whether we should set aside the leave to amend the notice of appeal that was given by this Tribunal at the preliminary hearing in the absence of the Respondent on the basis that it raises new grounds that(i) were not argued below, and(ii) were not included in the original notice of appeal by the Appellant partnership who have throughout had access to, and it appears taken the benefit of, legal advice from one of their partners or others and who throughout have deliberately chosen not to attend (and therefore before the Employment Tribunal take the risk of being cross examined) and to put forward the arguments they wish to on paper.[57]In our judgment the Employment Tribunal are to be commended for the care they took in dealing with this case in the absence of attendance before them by the Appellant partnership.