MS P STEPHEN v LONDON BOROUGH OF BRENT [2000] UKEAT 46_97_1505

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] UKEAT 46_97_1505

Case No Appeal No. EAT/46/97

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MS P STEPHENAPPELLANT

LONDON BOROUGH OF BRENTRESPONDENT

Before

Mr Justice Morison

Date 15 May 2000

[1]APPEARANCES For the Appellant MR S BARBER (a friend) For the Respondents MR S DEVONSHIRE (of Counsel) Instructed by: The Solicitor London Borough of Brent Brent Town Hall Annexe Forty Lane Wembley Middlesex HA9 9HD MR JUSTICE MORISON (PRESIDENT) : After a six day hearing, Ms Stephen's applications for unfair dismissal and unlawful discrimination grounds of race were dismissed. She withdrew her other complaint of unlawful deductions from wages.

[2]The appellant was dismissed from her employment in April 1996. She had been suspended from duty from 6 September 1994 until her dismissal, save for a short period between 25 April 1995 and 5 July 1995.

[3]The appellant commenced her employment with Brent as a social worker in October 1991, firstly in the Children and Family Division [CFD] and latterly in the mental health division. More than half the social workers in the CFD were black. The Tribunal found that the appellant received no training in the CFD "and was ill served by her superiors".

[4]A particular problem emerged during legal proceedings affecting one of the clients of the CFD and, at the request of a Family Division Judge, Brent undertook an independent review of the conduct and workings of the CFD. The result of the investigation showed that the appellant was one of the key workers on the particular case and she was named in the report along with her line managers. Disciplinary charges were formulated against the appellant and she and the three line managers were suspended from their duties in September 1994. All charges against all the four people were withdrawn and a return to work agreement was signed on 25 April 1995. Part of the agreement was that the appellant should return to work as an outreach social worker and that, with the assistance of her union representative, she should be introduced to her new line manager, a Mr Patel. There was toing and froing between the parties in an attempt to set up a meeting and discussions took place about outstanding leave entitlement. Eventually, Brent's patience came to an end and they issued an ultimatum demanding that the appellant attend the meeting fixed for 4 July or face the consequences. Her response was to present the first of her complaints alleging that she was being discriminated against on the grounds of her race. She did not attend the meeting, claiming that she had a migraine. Brent's response was to re-suspend her indicating that the return to work agreement had been 'frustrated' and that she would face the original charges which, as part of that agreement, had been withdrawn. Those disciplinary proceedings progressed at a snail's pace and the tribunal record that "the atmosphere in which the proceedings were being conducted had become exceedingly acrimonious". Brent then discontinued those proceedings in March 1996 as they had sent her a notice of impending redundancy to take effect on 8 April 1996. This notice advised the appellant that if she were successful in the selection process which would determine who would stay and who would go, then the redundancy notice would be withdrawn.

[5]The redundancy notice followed on from what was called a fundamental review of the Council's Social Services function, which concluded that savings of about £500,000 should be made from the department's budget. Consultation with the Unions took place. Brent were proposing that existing staff should undergo a written competency test. The Union objected to the proposal and recommended to their members, including the applicant, that they should not participate in it. Most of them did not. Brent said that staff who were not prepared to undergo the test or be interviewed would be assessed on the basis of their appraisals alone.

[6]The Tribunal were critical of the way the appellant reacted to her situation. They noted that she refused to attend any interview with prospective managers in other divisions; she refused to present herself for testing; she refused an offer of an interviewing skills training session. In fact, a manager carried out an appraisal of her in relation to other cases handled by her whilst she was in CFD and concluded that these had been handled no better than the one for which she had been criticised in the report. Although, at the last minute, the appellant showed interest in working in the mental health division she did so after the closing date for applications. Accordingly her employment came to an end on 8 April 1996.

[7]The Tribunal dealt with each of the Originating applications.

[8]In relation to the first, which complained that she had been, on grounds of race, suspended for an alleged act of misconduct (which charge the Council had subsequently withdrawn), the tribunal said this:

"The applicant complained that other staff within the Division who were criticised in the report had not been suspended or disciplined. ... Although the Applicant has chosen Ms Eaton as her comparator the other two employees who were suspended with her were black. In the circumstances we find that [Brent] did not act unreasonably in suspending the four employees ... as the circumstances against which the suspensions were made were extremely serious. Although Ms Eaton was returned to work and the [appellant] was not that was because Ms Eaton returned to the CFD her parent division while the applicant sought to be placed with another division but was not prepared to submit to an interview of any kind prior to her return to work."

[9]As to the second, the essence of her complaint was that despite the return to work agreement signed in April, by 4 July she still had not been taken back into employment. The tribunal found that the decision to re-suspend the appellant was a business decision wholly untainted by considerations of race discrimination.

[10]By her third application, the appellant complained that the decision to re-charge her was an act of unlawful discrimination. The Tribunal said:

"We find that the action complained of was taken because the previous agreement had broken down and [Brent] wished to break the deadlock and move to a negotiated settlement. In relation to this application [Brent] is called upon to explain itself. It has given an explanation which we wholly accept."

[11]In her fourth application, the appellant alleged that the disciplinary hearing was procedurally defective. Having examined the complaints the tribunal dismissed them, acquitting of impropriety two named individuals, one of whom was the author of the report.

[12]The tribunal also rejected the fifth application, which related to the termination of the disciplinary process, noting that at the time "the [appellant] and her team were mightily relieved by this action". As to the eventual dismissal, the tribunal accepted the Council's evidence. They concluded that "She [ the appellant ] was offered assistance that would have been very much to her advantage but she showed no interest in availing herself of these services or in the alternative employment that was available. She would not attend for any interview and only showed interest in one particular job but only after the date for application had passed. We are satisfied that [ Brent ] acted reasonably in attempting to effect a return to work for [the appellant]. On this application as with the others we find that the Applicant has failed to prove that she was the object of discrimination and victimisation. Furthermore we find that [ Brent ] acted reasonably in treating redundancy as a sufficient cause for dismissing the applicant."

[13]For the appellant, Mr Barber of Unison, argued that the return to work agreement required the relevant employees to be appointed to alternative Social Worker posts with a comparable level of seniority. In other words, on his construction of the agreement the persons suspended would be 'slotted' in to new posts without the need for interview. He said that the applicant alone had to have an interview, although in evidence the Council suggested, for the first time, that the interview would be more of a chat to ensure that the appellant was willing to train to become qualified. He argued that she was picked upon by an employer who saw her as guilty of the untried charge and that she alone was re-charged with the offence. In truth, a number of employees had been criticised in the report and none of them faced a disciplinary charge at all. There was, he said, an amnesty reflected by the return to work agreement. Mr Barber drew attention to another report and sought to say that the social worker criticised in that document, who was white, was not suspended or charged with any disciplinary offence. The case for victimisation should have been upheld. The Council were trying to 'get the appellant out' by making her redundant and using the disciplinary process as spur to achieve a rapid resolution' and in this connection reference was made to an E mail which used such language. In any event her dismissal was unfair: the true picture was that the Council were inflexible whereas the appellant was not.

[14]The Council submitted for their part that the appeal was simply an attempt to re-litigate issues which had been determined against the appellant. The tribunal had not either overtly or implicitly misdirected itself and there were no grounds for allowing the appeal.

[15]It seems to us that the decision itself cannot be overturned by this court whose jurisdiction is confined to correcting errors of law. There was much to be said on both sides as to the implementation of the return to work agreement. Even assuming that the principal in the department believed that the appellant was guilty of being unprofessional in relation to the particular case, that does not of itself justify a finding of unlawful discrimination. There was a dispute between the parties as to the implementation of the return to work. There was unquestionably fault on the part of the appellant who, perhaps through suspicion of racial discrimination, never accepted any kind of interview or help with re-training. As a point of principle she decided that she was entitled to return to work with more ado. The Tribunal had to weigh the merits of the position and come to a conclusion. In the light of her uncooperative stance and her performance in the department the case for drawing an inference of race was weak.

[16]That said, there are two particular features about this case, which cause concern. In the first place it is important that tribunals recognise that categorising people by colour may well not assist them in arriving at the just answer. There should be no assumption made that one person who is black may not unlawfully discriminate on grounds of race against another black person. Race discrimination is not just about colour it is about ethnic origin and nationality as well. The fact that an employer treats all persons of colour in the same way may mean that he is racially biased, as also an employer who discriminates only against Nigerians or those from the Indian sub-continent. The latter employer may well treat people of colour who are not Nigerians in the same way but that will not provide a convincing answer to a claim of unlawful discrimination if the Nigerian has been treated less favourably than the other group.

[17]Second, it is troubling to find an employer such as Brent using a disciplinary process to produce a settlement or force an issue. For the employee, especially a person in the social services department, a charge of misconduct is likely to be worrying and of great concern. Management should realise that disciplinary procedures are to be used only for cases where the employers genuinely believe that there is a case to answer.