EAT/191/01 MS WANGUI WA GORO v (1) LONDON BOROUGH OF HACKNEY (2) MS JANET DOBSON [2002] UKEAT 191_01_2103

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 191_01_2103

Case No Appeal No. EAT/191/01 EAT/197/01 EAT/198/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

EAT/191/01 MS WANGUI WA GOROAPPELLANT

(1) LONDON BOROUGH OF HACKNEY (2) MS JANET DOBSONRESPONDENTS

EAT/197/01 EAT/198/01 LONDON BOROUGH OF HACKNEYAPPELLANT

MS WANGUI WA GORORESPONDENT

Before

Mr Justice Lindsay

Lord Davies of Coity

Date 21 March 2002

[1]APPEARANCES FOR MS WANGUI WA GORO MS K MONAGHAN (of Counsel) Instructed By: Messrs Webster Dixon Solicitors 21 New Fetter Lane London EC4A 1AW FOR LONDON BOROUGH OF HACKNEY AND MS JANET DOBSON MR A BUTLER (of Counsel) Instructed By: Hackney Legal Services 183-187 Stoke Newington High Street London N16 0LH MR JUSTICE LINDSAY (PRESIDENT): We have before us three appeals, two by the London Borough of Hackney, Ms Wa Goro's former employer, and one by Ms Wa Goro, a black of Kenyan origin, the applicant below, who was an Equalities Assessment Officer in Hackney's Education and Leisure Services Directorate. She raised claims which included Race discrimination, Sex discrimination, victimisation and unfair dismissal. All the appeals arise out of decisions of the Employment Tribunal at London (North) under the Chairmanship of Mr P.R.K. Menon. Two Originating Applications - 961/95 and 621/97 - were heard and decided together and led to a majority decision on liability in the former IT1 and a unanimous decision as to no liability in the latter. The consequential decision on remedy in 961/95 was unanimous. Hackney appeals against parts of the liability decision which it lost and appeals also against the later remedies decision; Ms Wa Goro appeals against the liability decision in 621/97 by which her claims (or some of them) were dismissed. Mr Butler appears for Hackney, Ms Monaghan for Ms Wa Goro.

[2]Ms Wa Goro began her employment with Hackney in November 1990. In October 1993 she was instructed to prepare gender guidelines for Hackney Secondary schools. Her research led her to a document prepared by Lancashire County Council ("LCC") - their "Equal Opportunities Gender" Report. She gave copies of it to Ms Emvar Ali, the Equalities Manager in her department and her immediate line manager and also to another Equalities Officer, Mr Gary Burton, (a black African-Caribbean) who from time to time "acted up" as Ms Wa Goro's line manager in Ms Ali's absence. She also spoke to Ms Coyle of the LCC but Ms Coyle did not give permission for any use to be made of the LCC document (although permission would very likely have been granted had it been requested formally in writing).

[3]In terms of management, both Ms Ali and Mr Burton reported directly or indirectly to Mrs Janet Dobson, a white, the head of Strategic Services in the Directorate. Mrs Dobson reported to Mr Gus John, a black African-Caribbean, the Senior Personnel Officer in the Directorate.

[4]On the 18th January 1994, Ms Wa Goro, having produced a draft report, she then discussed it with Mrs Dobson with a view to its presentation to the Education Committee on the 8th February 1994. The report which she prepared had a passage in it which said:- "Most of the material has been derived from the issues arising in discussions with teachers, and governors, particularly in INSET, and with other practitioners and researchers in other LEAs' own institutions. Some of it is also derived from research of other good practice guidelines available." Mrs Dobson suggested some minor amendments to the draft but commended Ms Wa Goro on the draft. Mr John presented it, in Ms Wa Goro's absence, to the Education Committee on the 8th February 1994. It was approved for circulation to school heads and governors for their comments. On the 19th July 1994 Mr John presented the final version of the document to the Committee.

[5]The document that the Committee received was very extensively plagiarised from the LCC document. Ms Wa Goro had not told Miss Ali, Mr Burton, Mrs Dobson, Mr John or the Committee that that had been the case.

[6]In late July 1994, whilst away on holiday but, she said, whilst checking the final draft of the document which had gone to the Committee, Ms Wa Goro, she said, had realised that by mistake it had been the LCC document that had gone to the Committee and not the document (albeit based thereon) which she had prepared for the purpose. She tried to contact Mrs Dobson and Mr Burton by telephone but neither was available. She then spoke by telephone to Hackney's principal solicitor, Ms Gurney, and told her that a mistake had been made. Miss Gurney reported the call to Mrs Dobson. Ms Wa Goro, said Miss Gurney, had been extremely upset. She had said that there were two versions on word processor disks; one was more up-to-date than the other and in error the earlier one had been used. Ms Wa Goro also reported the error to the Directorate's Deputy Director. However, Mrs Dobson was concerned; she had discussed Ms Wa Goro's draft with her in January and had not been told that it had been taken from the LCC document. She asked for a comparison to be made by Mr Burton between the drafts that had gone to the committee in February and July 1994 and the LCC document. Mr Burton reported back that pages 1-14 of the Hackney report were verbatim copies of pages 1-17 of the LCC document except for some words or phrases that had been changed and a few minor omissions. Mr Burton reported that in essence the Hackney report was a straight copy of the LCC one. Mr Burton felt strongly that Ms Wa Goro had "Thoroughly undermined our integrity and professionalism as Equalities Officers".

[7]On the 23rd August 1994 Ms Wa Goro returned from her holiday. She was upset at Mr Burton's treatment of her and went off on sick leave. Mrs Dobson discussed the matter with the Directorate's Senior Personnel Officer, Mr Buckingham. They took the view that there had been plagiarism and a deception of Mrs Dobson, in not alerting her, in the discussion which she had had with Ms Wa Goro, of the use which had been made of the LCC document and of Mr John and of the Committee. They felt that there had been gross misconduct.

[8]On the 23rd September 1994 Ms Wa Goro returned to work. Mrs Dobson met her and gave her a piece of paper which read:- "The allegations are that the officer plagiarised a report of the Lancashire Education Committee and deceived and misled both the Director of Education and the Education Committee; also that the officer subsequently sought to deceive and mislead the Deputy Director and members in respect of the matter."

[9]Mrs Dobson explained that she had power to suspend Ms Wa Goro and added that if the allegations were held proven she could be dismissed for gross misconduct. Ms Wa Goro, who had had no prior indication of concern from her managers, was asked to respond. She complained that these allegations should have been put to her in writing in advance in accordance with Hackney's Conduct Code and that she should have been given the opportunity to attend with her Trade Union representative. She denied the allegations but refused to comment further. She was told she could not remain in the building and that she was placed on leave; she was escorted out of the building.

[10]Next there was an investigatory meeting on the 26th September 1994. Mrs Dobson told Ms Wa Goro that it was the first stage of the formal disciplinary procedure. Ms Wa Goro had attended with a colleague as no Union representative was available. At the meeting Ms Wa Goro was suspended.

[11]A formal investigatory meeting was then held on the 28th September 1994. This time Ms Wa Goro was represented by her Trade Union. The allegations were put to her; she answered that there had been a mistake and that she had acted in good faith. Mrs Dobson indicated that she did not believe Ms Wa Goro's explanation to be satisfactory and that an "NOC", a "Notice of Complaint", would issue. Ms Wa Goro's suspension was confirmed.

[12]On the 14th October 1994 an NOC was issued specifying in detail four complaints namely (broadly speaking) of Ms Wa Goro's having produced work as if it were her own but which was not, her putting it forward to Mrs Dobson and then to the Committee as if her own work in February 1994, her re-submitting it, similarly, in July 1994 and her misleading conduct as to her claim that a mistake (as to the word processing disks) had been made. The NOC indicated that it was believed that these actions constituted gross misconduct and, if proven, could lead to dismissal.

[13]Ms Wa Goro responded on 19th October by saying that she refuted the allegations and that a full explanation would be given at the "LOH", the Local Officer Hearing.

[14]Hackney's disciplinary code, set out in a publication entitled "The Purple Book" contained a provision which included within the definition of gross misconduct the concealment of any serious matter which should be reported. The Purple Book made provision for suspension, making it clear that it was not a punishment, but it did not prescribe a timetable. There was, though, a "Guide to Discipline" which did. The Employment Tribunal held:- "The procedure for issuing a Notice of Complaint (NOC) and a Local Officer Hearing (LOH) - i.e. the disciplinary hearing, is set out ..... as to time limits; it is set out ..... as follows:

"The time limit from the employee's response to the Notice of Complaint (or the expiry of the deadline) to any formal hearing is normally 10 working days, but can be up to three months. Head of Personnel Services can extend this period for a Local Officer Hearing by one month in exceptional circumstances, but after this the complaint will lapse (except where the Director of Corporate and Information Services decides that this would be against the Council's interests)."

[15]Hackney's disciplinary guide, if not contractual, was, impliedly, the procedure it usually applied and was the yardstick by which it was content to have its respective treatment of men and women and blacks and whites to be judged. As Ms Wa Goro had responded to the NOC on the 19th October 1994, the LOH should thus have been held, if no such extension was given, by the 19th January 1995 at the latest. Although the Employment Tribunal do not expressly say so, it is implicit in their reasoning that once an NOC had expired, the suspension related to the charges within it should also have lapsed at the same time. On that footing, and in the absence, as here, of an intervention by the Director of Corporate and Information Services, unless an extension were to be granted of, at most, one month, the suspension would have had to have ended not later than 19th January 1995.

[16]There were a number of attempts to convene an LOH and each side, at one stage or another, had reason to seek a postponement or cancellation. It was also seen to be appropriate that someone from outside the Directorate of Education should be the Chairman of whatever LOH was convened. No extension of time for the LOH was applied for or granted within the three-month period from Ms Wa Goro's response to the NOC. Nonetheless, the suspension continued.

[17]On the 22nd December 1994 or thereabouts Ms Wa Goro presented her first IT1, given a number ending 961/95. Beyond indicating that she felt that she had a case in sex and race discrimination it did nothing to explain what were the details of her case. Later she served Particulars in which she identified, albeit not by name, under the heading of "Race Discrimination", the cases of two white women who, she said, to an extent not unlike hers, had plagiarised works of other Local Authorities but who had not faced any disciplinary charges. She referred also to the case of a male officer who had used a document of another Local Authority without disciplinary action being taken against him. As we shall see, these three were later identified as Mr Burton, Ms Connor and Ms McCollum. She said that she had been treated less favourably on grounds of both race and sex by comparison with those three comparators. She said there was a custom and practice of sharing good practice which is tried and tested by all the local authorities, particularly those in the London area. She said that it was her understanding that several documents in Hackney had drawn their ideas and materials from other authorities and that there had been no disciplinary cases to answer in the other individuals' instances. Her Particulars mention that she had been suspended from duties in September of 1994 and faced charges of plagiarism and deceit. She could not, of course, at that stage complain that her suspension had continued even after the NOC had lapsed because, at that date, the NOC had not yet lapsed.

[18]In its IT3 in 961/95, which was not put in until November 1995, Hackney set out that Ms Wa Goro had been suspended following allegations of plagiarism and of her having intentionally misled senior officers and members of the Council, that she had sought to mislead by reference to the mistake claimed to have been made as to word processing disks, that she had been issued with an NOC on the 14th October 1994, that the LOH had not taken place, that she had returned to work on the 12th June 1995 and that her comparators were not true comparators.

[19]It was the case that Ms Wa Goro had returned to work on the 12th June 1995, there having been no LOH. Her suspension had thus continued long after the lapse of the NOC and without Hackney having told her that, the NOC having lapsed, she was in a position to return to work. Of the allegations in the NOC, there having been no LOH, the Tribunal said:- "To this day they remain allegations only, not proven facts."

[20]In the meantime, on or about 19th September 1995, the Employment Tribunal received another IT1 form which, confusingly, had completed within its details the number of her first IT1, 961/95. It was, it seems, accompanied by a document headed "Details of Complaint" and which contained complaints about matters later than the date on which she had lodged her original IT1, 961/95. Perhaps because of that the Employment Tribunal gave this form of IT1 a new and different number that ended 028/95. In a decision sent to the parties on the 9th April 1996 the Employment Tribunal (under a different Chairman) ruled that the original IT1, 961/95, was in time in relation to the complaint which Ms Wa Goro had made about her suspension but that the second IT1, 028/95, was out of time in relation to complaints not encompassed within her original complaint and that it would be not just and equitable for the Tribunal to grant an extension as to 028/95. It is not clear whether the Tribunal, on that occasion indicating that 961/95 was in time "in relation to the complaint which the applicant makes about her suspension" meant to include within that description her complaint, which they had earlier recited, that she had remained under suspension until June 1995, that is for a period of 9 months, although the Tribunal was then well aware of the complaint that 961/95 should not contain within it, as actionable complaints, events occurring after the date of its presentation.

[21]On the 10th December 1996 Ms Wa Goro's employment with Hackney ended.

[22]On the 29th January 1997 Mss Wa Goro presented her third IT1 (although the Tribunal call it her second). It was given a number ending 621/97. It was for race and sex discrimination, victimisation, wrongful selection for redundancy and unfair dismissal. In it she set out the background as in the earlier case, she referred to her suspension having lasted 9 months to the 12th June 1995, well beyond the period prescribed, she said, by Hackney's disciplinary code; she complained that Mrs Dobson had made it clear that when she was re-instated that she, Mrs Dobson, still believed in the veracity of the allegations contained in the NOC notwithstanding that the NOC had lapsed; she complained about not being re-integrated into the Equalities Team on her return and of being treated less favourably on racial grounds and on the grounds of her sex than Mr Burton; she complained of bullying and harassment by Mr Burton, that she had asked for a transfer to another section but that had been refused; she complained that Mr Burton had been assimilated into the one remaining post after the reorganisation in preference to her and that there was unfair treatment in the deletion of her post in that reorganisation. She claimed that the job specification for the new single remaining post had been drawn up by Mrs Dobson, tailored to give an edge or advantage to Mr Burton to her detriment and that she was, in effect, forced to take voluntary redundancy.

[23]Hackney denied her allegations and claimed that Mr Burton had been appointed to the new Equality Officer post simply because in interview he had performed better than she had done and that interview performance had ultimately been the criterion for selection. Ms Wa Goro, said Hackney, had accepted voluntary redundancy and had asked to be released and her employment had thus terminated as at the 10th December 1996.

[24]There was then a hearing at the Employment Tribunal spread between the 17th August 1999 and the 25th January 2000, with the Employment Tribunal sitting, as we have mentioned, under the Chairmanship of Mr Menon. The hearing of the combined 961/95 and 621/97 had taken some 10 days. Ms Wa Goro and four other witnesses were heard on the applicant's behalf; six witnesses were heard on Hackney's behalf. Of the comparators that we have mentioned, all, that is to say Mr Burton, Ms Connor and Ms McCollum, all gave evidence, as did Mrs Janet Dobson. The liability decision was sent to the parties on 30th March 2000. The majority decision in 961/95 was that Ms Wa Goro's complaints of sex discrimination and race discrimination succeeded; the unanimous decision in 621/97 was that the complaints of sex and race discrimination and victimisation under that originating application, and her complaint of unfair dismissal, failed. Ms Wa Goro, it was held, had not been unfairly selected for redundancy and had elected for voluntary redundancy. There was no unfair dismissal.

[25]On the 8th May 2000 there was a hearing as to remedy in IT1 961/95. Hackney had sought an adjournment on the ground of an impending appeal as to liability and also because Ms Wa Goro had served a witness statement as to remedy (in part seeking to attack Hackney's Counsel's conduct of the case) only 15 minutes before the remedies hearing. The adjournment was refused. The decision of the Tribunal on remedy was sent to the parties on the 30th May 2000. It was unanimous. Hackney was ordered to pay to Ms Wa Goro £18,038 in respect of injury to her feelings, which sum included £2,500 in respect of aggravated damages and £5,538 as to interest. Hackney was also ordered to pay to Ms Wa Goro £2,437 in respect of loss of opportunity in obtaining jobs, which sum included £437 for interest. In all therefore the Tribunal awarded Ms Wa Goro £20,475 including interest. The Tribunal also made a recommendation under section 65 (1) (c) of the 1975 Act and section 56 (1) (c) of the 1976 Act that Hackney should agree with Ms Wa Goro and her representative an agreed employment reference in respect of the time she had served with Hackney.

[26]As we mentioned earlier, the Tribunal's decisions have led to three appeals; Hackney appeals as to liability in 961/95 and as to remedy under that heading; Ms Wa Goro appeals against the failure of her claims in 621/97. We shall deal with the three appeals in that order but we should first mention that in neither 961/95 nor 621/97 were the Chairman's Notes of evidence, either of the liability or the remedies hearing, earlier applied for or available to us. At several points in this judgment we shall mention their absence. At one point during the hearing we invited the Appellant, in particular, to consider whether an adjournment in order to obtain them would be appropriate if issues raised before us were fully to be dealt with. However, Mr Butler shewed as little enthusiasm for them as did Ms Monaghan; there had been a conscious decision on Hackney's part not to seek them. We have thus proceeded in their absence.a. The Time Point

b. The Comparators; material differences between their cases and Ms Was Goro's? ".... In our view Ms McCollum (in relation to the Hackney Women's Unit document which was based on and not attributed to Hammersmith and Ms Connor in respect of the CCT document) are appropriate comparators in relation to the race discrimination complaint and Mr Burton is the appropriate comparator in the sex discrimination complaint ...." There is in our view, no error of law in that conclusion.

c. Was there discrimination on racial grounds? "There has been no satisfactory explanation for uniquely singling her out for such detrimental treatment in comparison with Ms McCollum, Ms Connor and Mr Burton and contrary to the usual practice in similar situations. In the absence of any satisfactory explanation by Hackney the majority of the Tribunal draws the inference that Hackney discriminated against the applicant on the grounds of her sex, contrary to ...." and the Tribunal then set out the relevant sections as to both discrimination under the 1975 and 1976 Acts.

d. Perversity "When the principal ground of appeal is, as here, perversity of the decision of the fact-finding Tribunal, there is an increased risk that the appellate body's close examination of the evidence and of the findings of fact by the Employment Tribunal may lead it to substitute its own assessment of the evidence and to overturn findings of fact made by the Employment Tribunal. Only the Employment Tribunal hears all the evidence first hand. The evidence available to the Employment Appeal Tribunal and to the Court of Appeal on an appeal on the question of law is always seriously and incurably incomplete. Much as one, or sometimes both, of the parties would like it to be so, an appeal from an Employment Tribunal is not a re-trial of the case. The scope of the appeal is limited to consideration of questions of law, which it is claimed arise on the conduct of the proceedings and the decision of the Employment Tribunal. The legal points must, of course, be considered in the context of the entirety of the proceedings and the whole of the decision, but with an awareness of the limitations on the Court's competence to question the evidential basis for findings of fact by the Employment Tribunal. It is a rare event for the appellate body to have all the documents put in evidence in the Employment Tribunal. No official transcript of the oral evidence exists. If an order is made for production of the Chairman's Notes, it is usually on a selective basis, related to the particular grounds of appeal, which should always be particularised on a perversity challenge. Most important of all, none of the witnesses give oral evidence on an appeal." We did not call back Counsel to comment on that passage as it is not so much novel as, rather, a clear, recent and authoritative setting-out of the law as it has been well understood for some while and such as could be derived from the cases which Ms Monaghan did cite to us. To the difficulties which Mummery L.J. refers one might add that here Chairman's Notes have not been made available or even sought. Even if they had, there would be the further difficulties to which Lord Hoffmann refers in Piglowska -v- Piglowski

[1999] 1 WLR 1360

H.L. . "I feel I should reserve my response to another time when I can respond." Another meeting was convened for the 28th September 1994. It was at this second meeting that Ms Wa Goro advanced the explanation that there was somewhere, either at work or at her home, a version of the report of hers which was not simply an adoption of the Lancashire document and that there were many versions of the document, on three computers, that in her absence the wrong one had been typed up and that instead of getting a version on which she had worked more extensively the committee by mistake received a report which was, to all intents and purposes, simply the Lancashire document. The Tribunal said:- "The applicant was never given a chance, as she would have been at a LOH, to explain her original telephone call regarding the missing disk." As we have mentioned, Ms Wa Goro had, whilst on holiday, volunteered that a wrong document, the Lancashire document, had been what the Committee had ended up with.

e. The Form of the Extended Reasons Conclusion on Hackney's appeal as to liability 2. Hackney's appeal as to remedy

(i) that the award of £10,000 for injury to feelings is said by Hackney to be excessive;

(ii) that the Employment Tribunal paid regard to post-originating application events which should, says Hackney, have been left out of account;

(iii) aggravated damages were, asserts Hackney, inappropriate;

(iv) account was taken by the Employment Tribunal of publicity said to be harmful to Ms Wa Goro, as to which, says Hackney, there was no evidence and as to which they had no opportunity to answer as to the effect, if any, of the same on Ms Wa Goro. We will take these questions in turn. (i) £10,000 for injury to feelings "In considering a subject as nebulous as injury caused to feelings by racial discrimination, a matter so personal to the complainant affected, so potentially variable from one complainant to another and so dependent on surrounding circumstances, the importance of the advantage enjoyed by those who have, over a period, seen and heard the complainant giving evidence is hard to exaggerate, especially where there is little or no reliable independent medical, psychiatric or physiological evidence." Mr Butler has not identified any error of law in the general directions which the Tribunal gave itself in relation to injury to feelings and we are unable to see the case as one of those where the size of the award itself suggests that there must have been error of law. (ii) Post-IT1 events (iii) Aggravated damages (iv) Publicity Conclusion on Hackney's appeal as to remedy . Conclusion on Ms Wa Goro's appeal in 621/97