MRS O O ATIJOSAN v LAMBETH SERVICE TEAM T/A TEAM LAMBETH [2000] UKEAT 968_99_2606

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 968_99_2606Case No Appeal No. EAT/968/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS O O ATIJOSANAPPELLANTLAMBETH SERVICE TEAM T/A TEAM LAMBETHRESPONDENT
Before
His Honour Judge Peter ClarkLord Gladwin of CleeDate 26 June 2000
[1]APPEARANCES For the Appellant MR D OGUNTIMOJU Represented By: Messrs Ogun Solicitors 368 City Road London EC1V 1LR For the Respondent MR S T CHEVES (of Counsel) Instructed By: Mr R A J Bedford Messrs Machins Solicitors Victoria Street Luton LU1 2BS JUDGE PETER CLARK : This is an appeal by Mrs Atijosan, the applicant before the London (South) Employment Tribunal chaired by Mr I.S. Lamb, sitting on 17 – 19 November 1998, against that part of the tribunal's decision, finally promulgated with extended reasons on 14 July 1999, following a meeting in Chambers held on 22 December 1998, dismissing her complaints of unlawful race and sex discrimination brought against her former employer, the respondent Lambeth Service Team t/a Team Lambeth. She further complains that the tribunal failed to adjudicate on a complaint of victimisation brought under both the Sex Discrimination Act 1975 and the Race Relations Act 1976 .[2]By her Notice of Appeal dated 2 August 1999 she set out 9 separate grounds of appeal. At a preliminary hearing held before a division of the EAT presided over by Judge Altman, sitting on 14 October 1999, the appeal was permitted to proceed to this full inter partes hearing on grounds 2, 3, 4, 8 and 9 only, all other grounds being then dismissed. This judgment is directed to those 5 remaining grounds. Background[3]The appellant, who is black and of African racial origin, joined the Education Department of Lambeth Council (Lambeth) from Hackney Council in March 1990 as Head of Education Catering. She was at all relevant times a senior employee. On 9 April 1997 her employment was transferred to the respondent, which had been set up to manage Lambeth's blue collar services.[4]On 28 August 1997 the appellant was informed that her post was redundant. She was given notice of dismissal on 24 October 1997, that notice taking effect on 26 January 1998. The Employment Tribunal Decision[5]The tribunal identified the following issues for determination:(1) whether she was unfairly dismissed(2) whether she was directly discriminated against on grounds of her sex and/or race in that: (a) she was treated less favourably on grounds of her race/sex when compared with two named white male comparators, Messrs Eden & Drummond, in that she was dismissed and they were not, (b) she was subjected to a course of bullying and humiliation by successive directors of the respondent, namely Mr Hayes and then Mr Edmundson, which amounted to less favourable treatment of her than an appropriate comparator on the grounds of her race/sex.[6]The tribunal resolved those issues in the following way:(1) they found that she was dismissed by reason of redundancy and that dismissal was unfair due to a total lack of consultation with the appellant.(2) the complaint of direct race/sex discrimination was dismissed on the basis (a) that although the appellant was properly to be compared with Messrs Eden and Drummond, who were retained, 6 other white males holding senior positions with the respondent were also dismissed as redundant. The treatment of the appellant in dismissing her was not on the grounds of her race/sex, (b) although the appellant was subjected to humiliation, bullying and unreasonable conduct on the part of both Messrs Hayes and Edmundson, this was as a result of prejudice against her on the basis of her ability, not her race/sex.[7]The tribunal's decision makes no mention of a separate complaint of victimisation under the respective Acts. The Appeal[8]It is convenient to deal with the remaining grounds of appeal separately and in a slightly different order to that which appears in the Notice of Appeal, using the same numbering. (2) In the judgment delivered by Judge Altman at the preliminary hearing there was some confusion as to whether this ground related to the tribunal's findings at paragraphs 59 – 60 of their reasons, or to paragraph 49. Before us, Mr Oguntimoju has confirmed that his complaint is directed to paragraph 49. Paragraph 49 reads:
"49. We accept that there is a factual basis to the complaint that two white men were not dismissed. They were Mr Eden, head of building maintenance, and Mr Drummond, who was promoted from operations manager to operations director. They were in subordinate positions and benefited from the departure of those above them. In the first six months of the new contracted arrangements, decisions were made to remove six managers or directors, other than Mrs Atijosan, and they were all white males, earning between £28,000 and £38,000 p.a."
[9]Mr Oguntimoju accepts that the tribunal's finding that 6 white male managers or directors were also removed from their posts is based on the evidence of Mr Walker, director of the respondent. He told the tribunal that having undertaken a review of the operation of 5 (out of 17) contracts entered into between Lambeth and the respondent he found that they were top heavy. There was a need for redundancies at the top tier, that is service director / contract manager level. Consequently 6 white male managers, in addition to Mrs Atijosan, had their posts deleted.[10]Mr Oguntimoju points out that that information was provided by way of Mr Walker's Witness Statement , only days before the hearing commencing on 17 November 1998. It had not been provided(a) when the appellant asked Mr Walker who else was to be made redundant on 28 August 1997(b) in the respondent's answer to a questionnaire served under section 65 of the Race Relations Act 1976 or(c) in the grounds for resistance contained in the respondent's form ET3.[11]Further, an order for discovery of an audit report relied on in the form ET3 as containing a recommendation for the deletion of the appellant's post was made on 4 November 1998. At the hearing on 17 November the respondent informed the appellant's representative that there was in fact no written audit report.[12]None of these matters are recorded in the tribunal's reasons. In these circumstances it is submitted that the tribunal failed to provide adequate reasons for accepting Mr Walker's evidence; alternatively the finding based on that evidence was perverse.[13]We have considered that material and the alternative submissions advanced by Mr Oguntimoju. We remind ourselves of the tribunal's duty to give reasons as explained by the Court of Appeal in Meek v City of Birmingham District Council [1987] IRLR 250 . In our view it is sufficient that the tribunal made the necessary finding of facts. We are not prepared to assume, because they are not set out in the reasons, that the tribunal overlooked the points made by Mr Oguntimoju before us, as they were below. Further, we cannot say that the tribunal acted perversely in accepting the evidence of Mr Walker, supported as it was by the evidence of Ms Walsh, human resources manager, to which Mr Cheves has taken us. Consequently we reject this ground of appeal. (4) This ground also relates to the tribunal's finding that the appellant was not less favourably treated on grounds of her race/sex than were Messrs Eden and Drummond.[14]Mr Oguntimoju has taken us to a number of management charts to show that Messrs Eden and Drummond were truly comparable with the appellant in terms of their positions in the respondent's hierarchy. We accept that proposition, as did the tribunal (reasons, paragraph 49).[15]In these circumstances he submits that there was no distinction to be drawn between the appellant and her two comparators. Consequently the tribunal were bound to draw an inference of unlawful discrimination based on the well-known guidance given by Neill LJ in King v The Great Britain-China Centre [1991] IRLR 513 , as approved by the House of Lords in Zafar v Glasgow City Council [1998] IRLR 36 , cases, incidentally which were specifically considered by the tribunal (reasons, paragraph 56).[16]We cannot accept that submission. Applying the principles in King , having found a difference in race/sex between the appellant and her comparators and a difference in treatment, it was then necessary for the tribunal to look to the respondent for an explanation. The explanation given was that the respondent adopted a policy of stripping out senior levels of management. As a result 7 senior posts were deleted, including that held by the appellant. The other 6 were held by white male employees. We are satisfied that the tribunal accepted the respondent's explanation. The appellant was not dismissed because of her race/sex, but as a part of a process of removing unnecessary senior management posts. That policy was applied regardless of the race/sex of the postholder. The tribunal were entitled to reject the appellant's complaint of unlawful discrimination, as they did at paragraph 64 of their reasons, in those circumstances. Accordingly we reject this ground of appeal. (8) This ground challenges the tribunal's finding that the reason for dismissal was redundancy. It is submitted that in view of the special terms of the catering contract made between Lambeth and the respondent, which(a) expressly incorporated Lambeth's Equal Opportunities policy and(b) stipulated that there must be a contract manager for the duration of the contract and named the appellant as that contract manager, coupled with the requirement that the post could not be deleted without the prior agreement of Lambeth, since no such agreement was reached the appellant could not have been made redundant.[17]We reject that submission. First, because the question as to whether or not the respondent was in breach of the catering contract with Lambeth has no bearing on the statutory question posed by section 139 (1) of the Employment Rights Act 1996 . Secondly, because the question as to whether or not the respondent established a potentially fair reason for dismissal is immaterial to the issue of unlawful sex/race discrimination. (9) It is contended that the tribunal fell into error by taking into account (reasons, paragraph 63) the fact that the appellant had made no complaint of race/sex discrimination prior to her dismissal in rejecting the complaint of discrimination based on the bullying and humiliating behaviour of Messrs Hayes and Edmundson.[18]The short answer to that complaint, in our judgment, is that this was a factor which the tribunal was entitled to take into account. It cannot be said to be an irrelevant factor. Accordingly this ground of appeal also fails. (3) That brings us to what we regard as the most interesting and potentially difficult ground of appeal.[19]Put shortly, Mr Oguntimoju submits that there was before the tribunal a complaint of victimisation contrary to section 4 (1) of the Sex Discrimination Act 1975 and section 2 (1) of the Race Relations Act 1976 .[20]The nature of the complaint was that following the filing of the Originating Application on 27 November 1997 the respondent withdrew an earlier offer of enhanced redundancy payment. The protected act was the lodging of the Originating Application alleging race/sex discrimination. The appellant was less favourably treated than a person would have been treated who had not done the protected act. The tribunal failed to rule on that complaint. That was a clear error of law; the tribunal is bound to rule on all claims properly before them. He invites us to allow the appeal on this point and either substitute a finding of victimisation or remit the complaint of victimisation to the Employment Tribunal for determination.[21]We begin with the state of the pleadings.[22]In her Originating Application presented on 27 November 1997 the appellant categorised her complaints in box 1 as follows:
"1. Continuous racial and sexual discrimination 2. Unfair selection for redundancy."
[23]In her detailed particulars of complaint she concludes with this paragraph:
"I also believe that Team Lambeth and its Directors' treatment of me is persistent acts of harassment, victimisation and discrimination on the grounds of my sex and colour contrary to section 1(1)(a), section 4(2) and section 33(1) of the Race Relations Act 1986 (sic). Also section 6(2) and section 41(1) of the Sex Discrimination Act 1975 and my selection for redundancy is contrary to the provisions of the Employment Rights Act 1996."
[24]Pausing there, reading the form IT1 as a whole, we are satisfied that although the word "victimisation" appears there was no true complaint of victimisation in the statutory sense. No protected act is identified, leading to less favourable treatment. The claim is one of direct sex and race discrimination only, coupled with a claim of unfair dismissal. In any event, that Originating Application could not anticipate the alleged act of victimisation now complained of, namely the withdrawal of an offer of enhanced redundancy payment following and as a result of the presentation of that Originating Application. In reaching this view we have considered the approach of the Court of Appeal in The Housing Corporation v Bryant [1999] ICR 123 .[25]What happened next was that the appellant sought leave to amend her Originating Application in the form of a document headed "Amended Application to the Industrial Tribunal" and dated 1 April 1998.[26]That document is in the form of a narrative account of the appellant's case, concluding substantively with this paragraph:
"Further, Team Lambeth had originally by letter dated 13.10.1997 proposed to make a severance payment to the Applicant in the sum of £20,772.70. However, following the lodgment of this application with the Tribunal on 26.11.97, Team Lambeth wrote to the Applicant's Union in terms that the Applicant would not receive the enhanced redundancy payment unless she withdrew the claim she had lodged with the Tribunal."
[27]By a letter from the tribunal dated 26 May 1998 an unidentified Chairman granted leave to the appellant to amend in terms of the document dated 1 April 1998.[28]By letter dated 29 June 1998 Lambeth, then a party but subsequently removed from the proceedings, requested "Further and Better Particulars". None of the information there sought related to a complaint of victimisation.[29]An order for those particulars was made by the tribunal by letter dated 7 July 1998.[30]By letter dated 22 July 1998 the appellant purported to answer the request. In the course of that letter the following appears:
"1. Our case is that you by your employees, and by your agents with your authority, unlawfully discriminated against Mrs Atijosan contrary to sections 1(1), 2(1), 4(2) and 32(1) and (2) of the Race Relations Act 1976 and under sections 4(1) and 6(2) Sex Discrimination Act 1975. … 3. The acts complained of are the termination of Mrs Atijosan's employment; the forced imposition of garden leave on Mrs Atijosan; and her general treatment by Mr David Hayes and Mr Philip Walker of Serviceteam in the period from 9 th April 1997 to 28 th August 1997 including the threat to withhold her enhanced redundancy payment unless she withdrew her application to the Industrial Tribunal."
[31]A later request for further and better particulars of the appellant's case did not result in any order being made, particularly at the interlocutory hearing held on 4 November 1998, and none were provided.[32]In these circumstances Mr Oguntimoju submits that the appellant was given leave, on 26 May 1998, to add to the complaints raised in her Originating Application a new complaint, namely an act of victimisation after presentation of the Originating Application.[33]Mr Cheves submits that it is not open to an applicant to add, by way of amendment, a cause of action or complaint arising after presentation of the Originating Application. We accept that submission. The proper course, procedurally, would have been for the appellant to present a second Originating Application, within time, alleging the act of victimisation which post-dated the first Originating Application (indeed, relied upon it as the relevant protected act) and had the two Originating Applications consolidated and heard together.[34]The question then arises, did the Chairman, on 26 May 1998, nevertheless allow such an amendment? We are not satisfied that he or she did. We have earlier observed that the Originating Application of 27 November 1997 did not, in any sense, raise a claim of victimisation, whether in law or fact.[35]The "Amended Application" dated 1 April 1998 makes no mention of victimisation in the statutory sense. Can it nevertheless be inferred that a factual claim of "post-IT1 victimisation" was raised in that document and leave to present that claim granted by the Chairman? We do not think that it can. Apart from the inherent unlikelihood of a Chairman granting leave to add a complaint which arose after presentation of the Originating Application, it may well be that the appellant was taken to be relying on the matters pleaded in the final paragraph of the "Amended Application" in support of her original complaint of direct race/sex discrimination.[36]Does it make any difference that by her further and better particulars dated 22 July 1998 she voluntarily set out her case on post-IT1 victimisation? We do not think that it can.[37]We are conscious that this may appear to be a harshly technical approach. However, we think that such an approach is required in the light of the Court of Appeal decisions in Bryant , Mensah v East Hertforshire NHS Trust [1998] IRLR 531 and Divine-Bortey v London Borough of Brent [1998] IRLR 525. In each case a liberal procedural approach taken by the EAT was overruled by the Court of Appeal taking a more formalistic approach.[38]Nevertheless we have considered this case on an alternative hypothesis, namely that, albeit wrongly, the Chairman on 26 May 1998 did grant permission to the appellant to add the post-IT1 victimisation complaint to the Originating Application by way of amendment. On this footing, what then?[39]Mr Oguntimoju submitted to us that such permission had been given on 26 May 1998, that he made submissions on the merits of the victimisation complaint in closing, having led evidence which the tribunal accepted and recorded at paragraph 48 of their reasons thus:
"48. There followed, during September and October, discussions and correspondence concerning the dismissal of Mrs Atijosan and the severance terms. Agreement was not reached, and the Applicant presented her Originating Application on the 27 November 1997. The Respondents thereafter decided that they would not pay her any more than the statutory minimum redundancy payment and would therefore not pay her the substantially enhanced terms which had been previously on offer. That decision was expressly linked to her commencement of these proceedings."
[40]He contends that in these circumstances, on those findings of fact the tribunal was not only bound to deal with the victimisation claim, it was also bound to uphold it.[41]At the preliminary hearing Judge Altman's division directed that the Chairman, Mr Lamb, be requested to confirm, by making reference to his notes of evidence, whether victimisation formed any part of the proceedings before the Employment Tribunal.[42]In response, Mr Lamb wrote to the EAT on 30 November 1999. Having set out the interlocutory steps to which we have referred, the Chairman states that the understanding of the Employment Tribunal, according to his direction and advice, was that the tribunal should consider the complaint set out in the Originating Application as at the date of its presentation. If the applicant wished to present a complaint relating to events after that date, it would have been necessary for her to present a further Originating Application referring to those events. Accordingly no reference was made to a complaint of victimisation in the tribunal's extended reasons.[43]Further, having examined his detailed notes of closing submissions, he found no reference to any complaint of victimisation by Mr Oguntimoju. That is confirmed by Mr Cheves, who appeared below.[44]A further factor was raised during submissions before us. Mr Cheves produced, without objection, an extract from the contemporaneous note taken by the respondent's solicitor's representative at the end of the first day of hearing on 17 November 1998. It appears from that note that at the close of the appellant's case the Chairman made reference to events after proceedings were commenced on 27 November (1997). The note continues: "Only matters to pass judgment on are those before 27 November".[45]The note continues to the effect that if further proceedings are taken there are obstacles and then a reference to time (limitation) and res judicata.[46]Mr Oguntimoju has no recollection of the Chairman raising the matter of the victimisation complaint. He recalls only, as is common ground, that, probably on the final day, the Chairman raised a limitation point in relation to pre-dismissal acts of bullying and humiliating behaviour, to which Mr Cheves indicated that no point was taken.[47]We are satisfied that the Chairman did raise the matter of events post-dating the 27 November 1997. The question is whether he did so by way of enquiry or a firm ruling. Mr Oguntimoju cannot help us as to this, having no recollection of the matter at all. Mr Cheves submits that the matter was raised by the Chairman for debate. There was no response from the appellant's side then or at any later stage in the proceedings. Applying the principle in Mensah , it was for the appellant's representative to advance her case in argument, having first persuaded the tribunal that leave had indeed been granted on 26 May 1998 to add the post-IT1 victimisation complaint. He did neither. In these circumstances there was no duty on the tribunal to rule on a complaint which, even if raised, was not pursued at the hearing.[48]We accept that submission. Accordingly we reject this ground of appeal, first on the basis that there was no pleaded case of victimisation and secondly, if there was, it was not pursued at the hearing.[49]For completeness we should deal also with Mr Oguntimoju's submission that on the tribunal's findings of fact in paragraph 48 of their reasons they would have been bound to conclude that victimisation was made out. We cannot agree. In two recent cases, Chief Constable of West Yorkshire v Khan [2000] IRLR 324 and TNT Express Worldwide (UK) Ltd v Brown (The Times. 18 April 2000; Transcript. Case No. EAT RF/1999/0252/A1. Judgment 4 April 2000), the Court of Appeal has considered the appropriate comparison for the purpose of the victimisation provision in section 2 of the Race Relations Act 1976 (and, necessarily, section 4 of the Sex Discrimination Act 1975 ). The question is whether but for the proceedings under the Act, would the applicant have been treated as he or she was?[50]In the present case the appellant brought complaints not only of race/sex discrimination, but also unfair dismissal. Thus the question is not answered as easily as in Khan & Brown , where the only proceedings brought at the material times were under the Race Relations Act 1976 . Here, it would, in our view, have been open to the tribunal to find that the respondent's decision to withdraw the offer of enhanced redundancy payment was referable to the complaint of unfair dismissal, and thus not by reason of the protected act, that is the presentation of the discrimination complaints. We express no view on that issue. We merely observe that the tribunal's findings of fact at pargraph 48 do not lead inexorably to a conclusion that unlawful victimisation was made out. Conclusion[51]It follows, for the reasons given, that we reject each remaining ground of appeal and accordingly this appeal must be dismissed.