MR A MURRAIN v LONDON BOROUGH OF HACKNEY [2003] UKEAT 0114_02_2002

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0114_02_2002Case No Appeal No. EAT/0114/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A MURRAINAPPELLANTLONDON BOROUGH OF HACKNEYRESPONDENT
Before
His Honour Judge J McMullenDate 20 February 2003
[1]APPEARANCES For the Appellant MS C RAYNER (of Counsel) APPEARING UNDER THE EMPLOYMENT LAW APPEAL ADVICE SCHEME For the Respondent MISS C MACLAREN (of Counsel) Instructed by: London Borough of Hackney 183-187 Stoke Newington High Street London N16 OLH HIS HONOUR JUDGE J McMULLEN QC This case is about the correct test for victimisation in race discrimination. We will continue to refer to the parties as Applicant and Respondent.[2]It is an appeal by the Applicant in proceedings against a decision of an Employment Tribunal sitting at Stratford (East) over two days in 2001, Chairman Mr Jeremy Cole. The Chairman gave the decision and reasons of his Tribunal at the end of the third day and the decision was promulgated with Extended Reasons on 7 November 2001. The Applicant was not represented. The Respondent was represented there and here by Miss MacLaren of Counsel. Today Ms Rayner represents the Applicant.[3]The Applicant claimed unfair dismissal and victimisation following a claim that he had been discriminated against on racial grounds. The Respondent contended that the Applicant had not been dismissed and denied victimisation.[4]The essential issues, as defined by the Employment Tribunal in paragraphs 22 to 24 of its reasons, were to decide whether the Applicant had one or two contracts of employment with the Respondent and, if two, then whether the termination of the second was unfair and/or on the grounds of his making a claim of race discrimination.[5]The Employment Tribunal dismissed the claim of victimisation. It upheld the claim of unfair dismissal finding the Respondent had not proved the reason for the dismissal was a potentially fair one and thus it was automatically unfair; but it reduced the compensation by 100%.[6]There is no appeal against the finding of unfair dismissal. Initially the Notice of Appeal complained of the reduction in compensation but following the announcement of our decision on the victimisation issue and discussion between Counsel Ms Rayner took instructions from her client and no longer pursues the quantum issue.[7]The sole ground of the appeal on which she now relies is set out in a Notice of Appeal and the Skeleton Argument and oral submissions she has made today. It is that the Employment Tribunal got the test of victimisation wrong, pursuant to section 2 of the Race Relations Act 1976 .[8]Directions were given in this appeal by Mr Recorder Langstaff QC and members on 8 July 2002 at a Preliminary Hearing. The Applicant was represented by Counsel under the ELAAS Scheme. The EAT allowed the victimisation point to be argued and the compensation point which is not now live. The facts[9]The Respondent is a London Borough Council. The Applicant was employed by it from 1982 as a Play Centre Worker. In 2000 the Applicant asked Ms Davis of the Learning Support Service about the possibility of doing extra hours as a Learning Support Assistant. He was given permission to do that and paperwork supporting that addition to his work was provided.[10]In his capacity as a Play Centre Worker he was engaged at Queensbridge School. On 13 March 2000 he absented himself from work without authority because he said he was concerned about a man waiting for him at the school gates. He was found to have not told the truth to his relevant manager about what he was doing on that day. He said that he was due to see Ms Hopfinger, an officer of the Respondent. She did indeed meet him on 14 March 2001 and instructed him not to attend and in due course suspended him so that an investigation could ensue into what happened on 13 March. There was also concern about the Applicant's conduct in relation to a cinema visit with children on 15 February. Ms Hopfinger was the person engaged in that expression of concern.[11]On 11 May 2000, at the request of Ms Hopfinger, Ms Troughton, a senior investigator for the Respondent's audit and antifraud unit, produced a report about the Applicant's conduct. On 24 and 31 May meetings were arranged for the Applicant to attend but he did not on either occasion. Instead, on 31 May he delivered his letter of resignation dated 26 May. That terminated, it is common ground, his employment by the Respondent in the Play Centre function. Nevertheless, the additional hours which he worked as a Learning Support Assistant at a different school, London Fields, was continued.[12]The term ended on 25 July 2000 until it resumed early in September 2000. In the meantime two important events occurred. Ms Troughton wrote to Alan Radford of the Learning Support Centre, where the Applicant was engaged, saying this:
"I enclose a copy of the report of the investigation commissioned by the Play Service into incidents involving Alan Murrain. In my view having resigned his post with the Play Service, Alan Murrain has in effect resigned his post with you, given the contractual status of his employment with you. Should you wish to continue employing Alan it would have to be on an independent basis, with your service taking and managing any consequences. I would say that the issues with Alan never involved his competence as such, however, as the report, makes clear dismissal was recommended because of dishonesty and the risk to children and others. I have taken the liberty of copying this fax to Neil Henderson, the HR Consultant who advised us on this case. I have also spoken to Jackie Hopfinger who will be contacting you shortly because she is unaware of the various arrangements between your two services."
[13]The second event was the production of a report by Professor Neil Thompson. He is engaged by the London Borough of Hackney as a Commissioner at the Independent Referral Unit. This unit is born of a previous report by Mr Lincoln Crawford into compendious allegations of race discrimination made by employees against the London Borough of Hackney.[14]Professor Thompson reported on 16 August 2000. He reported following a complaint the Applicant had made to him about his suspension. The Applicant had contended that that suspension was motivated on account of race. The report made criticisms of the Respondent in the application of its disciplinary procedures. As a result Ms Hopfinger was extremely concerned at criticisms which, we take it, had been made about her or her use of the procedures.[15]On 5 September 2000 Ms Davis met the Applicant at the London Fields School. According to the Tribunal she told him that on advice the view had been taken that he had resigned from his substantive post, that is at Queensbridge, and therefore was no longer employed by the Learning Support Service at London Fields School; the latter depended on the former.[16]At that point the Applicant gave her a copy of Professor Thompson's report. By the following day Mr Radford had been informed by Ms Davis of the meeting and he on that day at least knew of the criticisms made by Professor Thompson.[17]On 7 September, following a conversation at some stage prior to that date with Ms Davis, Mr Radford wrote on behalf of the Respondent terminating the second contract of employment on the basis that the Applicant had resigned from his primary contract. The Applicant however was able to secure work at the school within the relevant department following his dismissal and indeed continues to be so employed. The Legal Issue[18]The issue for the Tribunal, therefore, was to determine essentially the fairness of his treatment and whether it was motivated by the Applicant's complaint to the Independent Referral Unit.[19]The Tribunal decided that there was little dispute about the character of the evidence. It categorised the Applicant as having an honest realisation of the issues behind this case, which the Tribunal depicted as "complicated". The Tribunal noted that the Applicant had accepted responsibility for certain incidents which cast a bad light upon his work with the Respondent. He nevertheless asserted that there was a feeling of disquiet at his dismissal which he believed was retribution for his referral of a case to the Independent Referral Unit.[20]The Tribunal addressed itself to the legislation and cited in full the relevant provisions of the Employment Rights Act 1996 (Section 98) and Sections 1 (1) (a), 3, 4 (2), 68 (1) and 6 of the Race Relations Act 1976 . It will be noted at once that it did not cite Section 2 which is the provision dealing with victimisation as follows: 2 (1) "A person ("the discriminator") discriminates against another person ("the person victimised") in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has - … (c) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person; or (d) alleged that the discriminator or any other person has committed an act which (whether the allegation so states) would amount to a contravention of this Act. or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them."[21]The Tribunal directed itself impeccably by reference to the relevant authorities which we hold to be King v Great Britain China Centre [1991] IRLR 513 , Zafar v Glasgow City Council [1998] IRLR 36 , Anya v University of Oxford [2001] IRLR 377 and Qureshi v Victoria University of Manchester & Another [2001] ICR 863 , Mummery J presiding in the EAT.[22]It will be noted that none of those cases concerns victimisation. The principal authorities are Nagarajan v London Regional Transport [1999] ICR 877 , Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065 and Cornelius v University College of Swansea [1987] IRLR 141 CA.[23]The point we make is that the Tribunal did not apparently focus on the legislation or the jurisprudence relating to the sole issue arising under the Race Relations Act 1976 in this case; that is, victimisation. It expressly directed itself to a three-stage test, which is of course relevant for race discrimination in its direct form, under Section 1 of the Act when asking – was the difference of treatment on the grounds of race?[24]The approach, however, as enjoined by the House of Lords is to consider the following. See Lord Nicholls of Birkenhead at page 1071 of the Khan case.(a) What are the relevant circumstances?(b) Was there less favourable treatment than others in the control group?(c) Was the treatment by reason of a protected act?[25]Lord Nicholls approved the judgment of Bingham LJ in Cornelius (above). He said this: 30 "A situation closely comparable to that in the present case arose in Cornelius …This was a decision of the Court of Appeal, comprising Sir John Donaldson Fox and Bingham LJJ. Like the present case, Cornelius concerned steps taken by employers to preserve their position pending the outcome of proceedings. A college declined to act on an employee's transfer request or to operate their grievance procedure while proceedings under the Sex Discrimination Act 1975 brought by the employee against the college, were still awaiting determination. Giving the only reasoned judgment, Bingham LJ said, at pp 145-146, para 33:
"There is no reason whatever to suppose that the decisions of the Registrar and his senior assistant on the Applicant's requests for a transfer and a hearing under the grievance procedure were influenced in any way by the facts that the Appellant had brought proceedings or that those proceedings were under the Act. The existence of proceedings plainly did influence their decisions"."
It is clear that the House of Lords was approving, in terms, the approach of the Court of Appeal to the issue of victimisation.[26]Lord Hoffman said at paragraphs 55, 59 and 60 of the Khan case: 55 "Of course in one sense the fact that he had brought proceedings was a cause of his being treated less favourably. If he had not brought proceedings, he would have been given a reference. In some contexts, a causal link of this kind will be enough. For example, in Crown v Birmingham City Council, Ex Parte EOC [1989] IRLR 173 the question was whether the Council had treated a girl less favourably "on the ground of her sex", contrary to section 1 of the Sex Discrimination Act 1975. The House of Lords decided that her sex did not have to be the reason why the Council had decided to treat her in that way. It was sufficient that she would have been treated differently if she had been a boy: see also James v Eastleigh Borough Council [1990] IRLR 288 . 59 [ Cornelius ], with which I respectfully agree, shows that once proceedings have been commenced, a new relationship is created between the parties. They are not only employer and employee but also adversaries in litigation. The existence of that adversarial relationship may reasonably cause the employer to behave in a way which treats the employee less favourably than someone who had not commenced such proceedings. But the treatment need not be, consciously or unconsciously, a response to the commencement of proceedings. It may simply be a reasonable response to the need to protect the employer's interest as a party to the litigation. It is true that an employee who had not commenced proceedings would not have been treated in the same way. Under section 1, one would have needed to go no further. Under section 2, however, the commencement of proceedings must be a reason for the treatment and in Cornelius 's case it was not. 60 A test which is likely in most cases to give the right answer is to ask whether the employer would have refused the request if the litigation had been concluded, whatever the outcome. If the answer is no, it will usually follow that the reason for refusal was the existence of the proceedings and not the fact that the employee had commenced them. On the other hand, if the fact that the employee had commenced proceedings under the Act was a real reason why he received less favourable treatment, it is no answer that the employer would have behaved in the same way to an employee who had done some non-protected act, such as commencing proceedings otherwise than under the Act."

Lord Mackay of Clashfern said this in the Khan case: 39 "In order that discrimination by way of victimisation under section 2 should occur it is necessary that there should be "circumstances relevant for the purposes of any provision of this Act". Secondly, it is necessary that the discriminator treats the person victimised less favourably than in those circumstances he treats or would treat other persons; and, thirdly, it is necessary that he does so by reason that the person victimised has done one of the protected acts. In my view, in order to ascertain who are the "other persons" with whom comparison should be made in any particular case one must identify the circumstances relevant for the purposes of the provision of the Act in which the discrimination is said to have occurred and then to consider how other persons in those circumstances have been treated.

[28]The process, therefore, is to through the three stages, as indicated by Lord Nicholls, whose judgment we have summarised above. The Tribunal, in this case, made a number of findings. The Applicant's Case[29]While accepting that the Tribunal did not address itself in terms to the legislation, Ms MacLaren argued that it made sufficient findings. She pointed out that the Tribunal had noted that the act complained of by the Applicant was of discrimination caused by vengeance because he had made a reference to the IRU.[30]The Tribunal also noted that the Applicant believed that his dismissal was retribution for that referral and further noted that he gave almost no evidence which touched or concerned his belief that he was dismissed by Mr Radford by way of reprisal. Thus, says Ms MacLaren, the Tribunal had in mind the Applicant's claim for victimisation and made findings consistent with that. Conclusion[31]The view we have come to is that the Tribunal lost sight of the statutory questions. Speeches in the Khan case had been made a fortnight before the hearing in the instant case and yet the very helpful approach indicated by their Lordships does not appear to have been drawn to the attention of the Tribunal.[32]The comparator which the Tribunal was looking for is a white person: see for example the phrase "We must not assume that if an employer behaves unreasonably towards a black employee then without more the reasons for this is attributable to the employee's race." As we have attempted to demonstrate the race of a person making a claim of victimisation is neither here nor there. A Tribunal further went on to say: 38 "…we do not think that that could possibly be attributed to a difference of treatment on the ground of race. [the Applicant] did not suggest any other employee of whatever ethnic origin would have been treated differently."[33]They are indications of the wrong comparison and therefore the Tribunal has misdirected itself as to the correct statutory test to be applied in this case and this appeal is allowed. Disposal of the appeal[34]Whether or not the matter should be sent back to this or a different Tribunal was the subject of submissions from both Counsel. The Tribunal decided that the Applicant had been unfairly dismissed. There is no appeal by the Respondent against that finding.[35]At first sight the finding of a reason for dismissal and the finding of a reason for taking action against a person who has made a complaint of race discrimination may be the same material. On the other hand, given no appeal by Hackney against the adverse finding, that decision stands. We will remit the case to the same Tribunal, unless in the opinion of the Regional Chairman this is impracticable, for it to make a decision on the matters to be considered within section 2 of the Race Relations Act 1976 .[36]It seems, at least at the moment, that it is common ground the complaint to Hackney's Independent Referral Unit is a protected act and was so in this case. The question is whether the dismissal was by reason of that.[37]It will be noted that no evidence was given by Mr Radford who was the dismissing officer and it will be for the Tribunal to consider whether or not his attendance plays any part in their decision.[38]The decision in relation to unfair dismissal stands as does the compensation which flows from it. The Tribunal will therefore have to consider, as a whole, the complaint under section 2 of the Race Relations Act 1976 .[39]We would like to thank both Counsel for the care and expedition with which they have conducted this case.