MRS S J CHINYANGA v BUFFER BEAR LIMITED [2003] UKEAT 0300_02_0805

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0300_02_0805Case No Appeal No. EAT/0300/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS S J CHINYANGAAPPELLANTBUFFER BEAR LIMITEDRESPONDENT
Before
His Honour Judge J McMullenDate 8 May 2003
[1]APPEARANCES For the Appellant MISS ELEANA MISRA (of Counsel) Instructed by: Messrs Curwens Solicitors Crossfield House Gladbeck Way Enfield Middx EN2 7HT For the Respondent MISS ALISON SLATER (of Counsel) Instructed by: Messrs Bond Pearce Incorporating Cartwrights Solicitors Marsh House 11 Marsh Street Bristol BS99 7BB HIS HONOUR JUDGE J McMULLEN QC This case is about unfair dismissal, race discrimination, (in part) race victimisation, and Employment Tribunal procedure. The judgment represents the views of all three members. We will refer to the parties as Applicant and Respondent.[2]It is an appeal by the Applicant in those proceedings against a decision of an Employment Tribunal sitting at London (South), Chairman Ms C E Taylor from 30 July to 3 August 2001 (five days). It met in chambers on 19 December 2001. Its decision was registered with Extended Reasons on 25 February 2002. We will return to that chronology.[3]The Applicant was represented by other Counsel and today by Miss Eleana Misra. The Respondent was represented there and here by Miss Alison Slater of Counsel. The Applicant claimed unfair dismissal, race discrimination, victimisation and wrongful dismissal. The Respondent contended the dismissal was fair and was not on grounds of race; nor was any other matter of complaint the subject of race discrimination. The issue of wrongful dismissal was not pursued. The Issues[4]The essential issues, as defined by the Employment Tribunal at previous hearings and rehearsed by the instant Tribunal were set out in eleven paragraphs. Nine dealt with claims under the Race Relations Act 1976 and the others with unfair and wrongful dismissal. The Legislation[5]The relevant provisions of the legislation are the Race Relations Act 1976 section 1(1) (a), 3 (4), 4(2) (b) and (c): 1 (1) "A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if- (a) on racial grounds he treats that other less favourably than he treats or would treat other persons; or (b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but- (i) which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and (ii) which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied; and (iii) which is to the detriment of that other because he cannot comply with it. 3 (4) A comparison of the case of a person of a particular racial group with that of a person not of that group under section 1 (1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other. 4 (2) It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee- (a) in the terms of employment which he affords him; or (b) in the way he affords him access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or (c) by dismissing him, or subjecting him to any other detriment." Section 2 has been relevant and is not here reproduced.[6]In addition, the right to claim unfair dismissal is regulated by section 98 (4) of the Employment Rights Act 1996: (4) "Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)-(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and(b) shall be determined in accordance with equity and the substantial merits of the case." The Decision[7]The Employment Tribunal found against the Applicant on all her claims. She appeals against those findings on the grounds of delay and by reference to the Employment Tribunal's treatment of the evidence given by her and on her behalf. Further, the decision on unfair dismissal was perverse and the Employment Tribunal failed to deal with the Applicant's central case on the handling of her grievance.[8]Directions sending this appeal to a full hearing were given at a Preliminary Hearing by Judge Reid QC and members on 31 July 2002 and at the date fixed for a full hearing by Mr Justice Rimer and members on 31 January 2003, when the appeal was postponed and the Applicant was ordered to pay substantial costs. The facts[9]The Applicant is Black African. She was employed by the Respondent or its predecessor from 1994 to 5 January 2001. The Respondent is as a small organisation in which the Applicant played a pivotal role.[10]The Respondent was incorporated in 1999. At the relevant time it operated 18 children's nurseries in the South East of England. The Board consisted of Dr K Turner and Mr Brian Wilson. The company secretary was Mr Ian Cross, who was Dr Turner's partner. Mr Wilson played no active role in the running of the business.[11]In 1999 the Respondent was searching for a Managing Director and it appointed Ms Carol Lines, initially as General Manager with a view to becoming Managing Director.[12]During 1999 Westminster City Council put the running of its nurseries out to tender. There was an internal bid which failed. The employees of that internal part of the Council were the subject of a transfer pursuant to the Transfer of Undertaking (Protection of Employment) Regulations 1981 on 1 April 2000 from the City Council to the Respondent. Thus the contracts of employment, including the Applicant's, were all transferred by operation of law.[13]The Applicant is highly qualified, initially as an SEN, but having further qualifications past Master's degree. Sadly, she did not settle well within the Respondent. There were a number of difficulties, disputes and disagreements between herself, Ms Lines and Dr Turner, almost immediately upon transfer which were never satisfactorily resolved.[14]The Applicant is recorded by the Tribunal in its list of issues as raising a number of substantial complaints which the Tribunal dealt with in turn.[15]The principal focus of the dispute in the case was two letters by the Applicant's juniors, described as "direct reports," Ms Reache and Ms Roberts. Ms Reache is Black Caribbean, Ms Roberts is white. Both of these junior officers made very serious allegations against the Applicant which required investigation. The decision was taken to put the investigation out to an independent person who was a Human Resource Advisor, made available through the Respondent's solicitors, Messrs Clarks. Her name was Ms Trish Brooke. Ms Lines suspended the Applicant on 27 July 2000.[16]A dispute arose as to whether sufficient compliance had been made with the relevant disciplinary procedure which was inherited from Westminster City Council. That procedure requires information about the allegations to be given to a person who is to be suspended and sets out a procedure for investigation.[17]The Tribunal decided there was no unfairness in the decision to suspend the Applicant upon the material available to Ms Lines on 27 July, the substance of which is fully set out in a letter from Ms Lines to the Applicant.[18]Ms Brooke's investigation took place. The Applicant refused for a number of reasons to co-operate. The investigation went on until 27 October 2000 when, it is common ground, formal allegations were directed at the Applicant, requiring her to engage in the disciplinary process. Her refusal to co-operate was the sole cause of that delay. The Applicant was at all times a member of UNISON and had the advantage to be represented by branch officers of that union.[19]The Applicant declined to attend personally a disciplinary hearing which was convened. She objected to its taking place on premises where she worked, she was off sick, and she objected to Ms Lines chairing the disciplinary hearing. Instead, submissions were made by her in writing and on her behalf by Mr Beirne, the Assistant Branch Secretary of UNISON.[20]Ms Lines decided that the length of the proceedings should be restricted and the Applicant's representative further objected to that. The hearing took place on two days. Ms Lines was satisfied the proceedings were conducted in a fair manner, given the constraints of working with a complex disciplinary procedure. Ms Lines concluded the Applicant was blameworthy in respect of all of the allegations made against her, many of which derived from the complaints by the two junior officers. The Applicant was dismissed by letter of 3 January. She appealed to Dr Turner who rejected her appeal.[21]The Tribunal considered the submissions of both parties, which it recorded in full, and then reached conclusions which correspond to the list of issues upon which it began its task. It noted that the Respondent had correctly viewed the allegations against the Applicant by Ms Roberts and Ms Reache as serious complaints and was left with few options.[22]As far as the appeal is concerned, three paragraphs of the Tribunal's reasoning are of importance and they are set out below as follows:
"75 We heard no evidence that a manager who was white or of a different race to that of the Applicant would have been treated differently in the same or similar circumstances. We therefore find no evidence of less favourable treatment. We conclude that the Applicant was not unlawfully discriminated against on the ground of her race when she was suspended from her job. 79 Following the disciplinary hearing the Respondent was satisfied that the allegations against the Applicant were well-founded. This was a small organisation in which the Applicant had a pivotal role. It was clear that following her actions the normal working relationships between the Applicant and at least two of the managers that reported to her could not be restored. In those circumstances the Respondent dismissed her; the Tribunal found no evidence that race was a factor in this decision. One of the managers who complained about the Applicant was black and the other was white and both had until recently worked satisfactorily with the Applicant. They both gave sound reasons, supported by correspondence they had received from the Applicant, why they could not longer work with her. The Tribunal heard no evidence that a white manager would have been treated differently in the same or similar circumstances. That being so, the Tribunal find that the Applicant was not less favourably treated. The Applicant's complaint of discrimination fails. 84 The Applicant complained that her grievances were not taken as seriously as those of her subordinate staff. This is a claim constructed from the fact that the complaints of Ms Reache and Ms Roberts were found to be proven. The Tribunal was satisfied that the Respondent had reasonable grounds to prefer the evidence of the Applicant's direct reports. Therefore we find that the Applicant was not unlawfully discriminated against on the ground of her race."
[23]In addition, the Tribunal rejected the Applicant's evidence on principal matters: 87 "The Tribunal considered that against such a background that Ms Lines and Dr Turner may have demonstrated some impatience with the Applicant. We also accepted Ms Kemp's evidence that occasionally Dr Kay or Ms Lines would speak in a careful way to the Applicant, which Ms Kemp interpreted as being a 'child like' fashion. However, we found no evidence that they ignored the Applicant or demonstrated any disrespect towards her. Having considered the surrounding circumstances the Tribunal finds that there was no less favourable treatment and finds the Respondent did not unlawfully discriminate against the Applicant."[24]The Applicant did not pursue her claim of wrongful dismissal. In respect of unfair dismissal the Tribunal found that the reason for the dismissal was that the Respondent believed that she had committed acts of gross misconduct when, amongst other things, she accused her juniors of misconduct, without evidence to support her conclusion.[25]The Tribunal then went on to consider the fairness of the procedure and said as follows: 94 "… [T]he Respondent gave the Applicant every opportunity to put her defence to the many charges during the disciplinary hearing and to put any points in mitigation. The Applicant's representative conducted that proceedings in such a manner that the proceedings became unnecessarily protracted. In those circumstances we do not accept that the Respondent rendered the proceedings unfair when it curtailed the evidence of Ms Reache. We find the appeal process was fair. The Applicant herself chose not to take any active part in the proceedings. That is a matter for her, we are satisfied that she had every opportunity to do so and her failure to participate does not in our view render the disciplinary procedure unfair." Employment Tribunal Directions[26]The Tribunal directed itself in accordance with the relevant provisions of the Race Relations Act 1976 and the Employment Rights Act 1996 and the leading authorities which we hold to be King v Great Britain-China Centre [1991] IRLR 513 , and British Home Stores v Burchell [Note] [1980] ICR 303 . The submissions[27]In a carefully constructed Skeleton Argument, Ms Misra for the Applicant submitted that the Tribunal had erred in that it failed to deal with the evidence given by and on behalf of the Applicant, in particular through Ms Kemp; it failed to deal with the Applicant's case relating to her grievance; and there is no finding as to the credibility of the Applicant's evidence or why the Tribunal rejected it and preferred the Respondent's version of the evidence. It was contended that the passages we have cited from reasons, paragraphs 75 and 79, are not tenable findings, given the evidence by Ms Kemp; the Tribunal failed to apply itself in accordance with Anya v University of Oxford [2001] IRLR 377 .[28]As to unfair dismissal, it was contended that there was unfairness in the length of time which the investigation covered and in the matter having been heard at first instance by Ms Lines who had had, as Ms Misra put it, many run-ins and a personality clash with the Applicant; and then on appeal by Dr Turner who had been involved at an earlier stage.[29]It was contended that both of these were affected by a view taken by Dr Turner set out in an email of 19 July 2001, in which it is clear to us, for we accept the submission, that Dr Turner was not only a witness but formed a view prejudicial to the Applicant on the very subject matter of the issues raised by Ms Reache and Ms Roberts; and communicated that in the email to Ms Lines giving her directions as to how to deal with the matter.[30]It was also contended that the decision by the Employment Tribunal that the decision to dismiss was within the band of reasonable responses was perverse. There was unfavourable treatment of the Applicant in her grievance, as compared with the treatment of the grievance raised by the two juniors against her; and, finally, there had been delay which, coupled with the failure by the Employment Tribunal to deal with such matters set out above, made the hearing unfair. She had not had a fair trial.[31]On behalf of the Respondent it was contended that the Tribunal had carried out the task it had set itself in answering all of the issues. The Tribunal was not required to speak about every single document put in front of it. There was a plain recital by the Tribunal of large parts of the documentation verbatim and also by reference to page number. The Tribunal had followed, without citing it, the judgment of the Court of Appeal which was extant before the hearing, and published in the law reports before its later deliberations, in Anya (above), drawing upon Qureshi v Victoria University of Manchester [2001] ICR 863 .[32]No complaint had been made about the delay which was foreshadowed at the end of the oral hearing. The comments of the Chairman on the Applicant's documentation complaining of the decision should be supported since they indicate the Chairman pointing out that much of the material put in front of her for comment in December 2002 related to opinion evidence. Further, the Tribunal had dealt with the grievance point and had rejected it in paragraph 84 which we have cited. There was a distinction between the Applicant's case and the two juniors in relation to the grievance.[33]As to unfair dismissal, it was contended that the Applicant had failed to co-operate with the investigation by Ms Brooke and the procedure for suspending her was complied with, since the outline of the allegations was supplied to her.[34]The response of the leaders of this Respondent was within the range of responses of a reasonable employer. There was no less favourable treatment since there was a limited structure for hearing disciplinary matters. The Applicable Principles[35]The relevant principles are:(a) It is of course a guarantee, under Article 6 of the European Convention on Human Rights , that a person in civil proceedings is entitled to a hearing within a reasonable time, which includes the announcement of a judgment. In Barker & Others v The Home Office EAT/804 7 August 2002; a judgment of His Honour Judge Reid QC and members, a decision delayed for one year, coupled with the fact that the decision did not deal with the issues of fact which the parties required to be dealt with, was set aside.(b) As to discrimination, the principles set out by Neill LJ in King (above) require consideration of primary facts, and inferences may be drawn where explanations as to differential treatment of persons of different racial groups is not forthcoming or unsatisfactory.(c) From Anya it will be recalled that a Tribunal is required to make decisions upon the issues of substance before it; and to make decisions without conclusions under the statute, in respect of evidentiary or background facts which may illuminate the decision of the Tribunal on the substantial issues with which it is dealing.(d) Findings do not have to be made on every single issue which is raised during the course of the hearing but the Tribunal is required to deal with those matters and submissions which are vital, essential or critical (see English v Emery Reinbold & Strick Ltd [2002] 1 WLR 2409 .(e) An employer engaged in disciplinary proceedings should appoint officers with an open mind to hear the case and any appeal and to decide issues fairly upon the material which is put in front of them. Our Conclusions[36]We will deal first with delay. We have set out the timetable of this case above. For some reason, Employment Tribunals seem to be exempt from the regime which applies in the civil courts and in the EAT, and in criminal jurisdictions, which is that any reserved judgment must be made and delivered in open court within three months of the conclusion of the oral proceedings; or special license be obtained from the presiding judge or, in our case, the President of the EAT. This regime comes from the Lord Chancellor and follows a number of celebrated cases where judgment was delayed and injustice occurred.[37]The timescale in this case is six and a half months. That is unacceptable. It cannot be right that in a small business a case of race discrimination and unfair dismissal which is fact-sensitive and which causes, to all of those engaged in the resolution of it, such strong feelings should be left undecided for six and a half months before the result of the oral hearing.[38]In this case the Employment Tribunal told the parties that because of difficulties in arranging with the lay members for an early date there would be a significant delay and the parties would be unlikely to see a decision before the end of the year. That was on 3 August 2002.[39]Special considerations obviously apply in a jurisdiction which is tri-partite and relies upon the services of part-time appointments, both as Chairman and as lay members. But Ms Misra is right when she submits that a delay of four and a half months before the Tribunal members deliberated in chambers and a further two months before delivery of the Extended Reasons is unacceptable. The three month deadline for making these complaints is as a matter of policy very short, for the reasons given in Southwark LBC v Alofabi [2003] ICR 800 by Peter Gibson LJ at para 35. Going hand in hand with that policy is early determination of employment law complaints. The question is whether the delay made the decision unsafe.[40]It must be appreciated that her submission to us is based upon the Barker judgment, in that she contended that the errors which she had submitted appeared in the Tribunal's reasons had occurred because, over the long span of time, the Tribunal had forgotten some of the evidence which it had heard and thus had caused prejudice. Of course, she is not in a position to know the reason why, if she makes good any point, the Tribunal failed to deal with it; but she is entitled to say that if this were dealt with by the Employment Tribunal in chambers much earlier than it did, it may not have made the errors which she alleges occurred.[41]Having made those observations, we would be minded to set aside a decision which was the result of a delay of six and a half months unless there were some compelling reason not to do so. In this case, we have detected one, but only one, error in the handling of the Race Relations Act 1976 claim. In respect of the unfair dismissal claim, we have decided to allow this appeal.[42]We have decided not to set aside the whole of the decision and send it to a different Tribunal because we have dealt clinically with the submission made to us that what is required to be shown is delay plus some additional error. We do not consider that justice will be done by setting aside the whole of this decision in the light of the consideration which we have given to it. We then turn to the issues of substance.[43]The primary ground which the Applicant raised was about the disparate treatment she received in respect of her grievance as compared with her two juniors. The reason given was this. "Ms Lines considered that she could not carry out an investigation herself because of the limited lines of management available to hold a disciplinary hearing if one was necessary. She therefore instructed [Ms Brooke]".[44]The Tribunal does not expressly decide whether that was the right thing to do. The Applicant's grievance was in a form which was recognised by the Westminster City Council as containing serious matters; for as it was when the statutory transfer occurred, the Applicant was due to be heard before a panel of elected members, which is Stage III of the Westminster City Council procedure.[45]Because the grievance was resolved at a Preliminary Hearing before the Employment Tribunal without the Tribunal knowing the details of it, there is very little material upon which the Employment Tribunal can make the like for like comparison required by section 3 (4) of the Race Relations Act 1976 . Such material as there is, however, does point to a serious grievance being raised by the Applicant, since in the correspondence from the City Council the grievance is summarised as relating to:(1) Her treatment by the Director of Education;(2) Allegations relating to management of the day nursery budget in 1994;(3) Issues concerning the letting of the day nursery contract;(4) Assurances regarding any future employment reference provided by Westminster City Council.[46]It is submitted by Ms Misra that the Head of Personnel at the City Council suggested that this grievance should normally be heard by a manager of the Respondent of suitable authority who would normally hear grievances, for example, the Managing Director. Thus, it seems to us the Applicant had made out a case to be treated equally in respect of the handling of her grievance and the Tribunal does not appear to have answered that claim, for in the general summary we have given above, the Tribunal does not descend into an answer beyond noting that the Applicant had complained that her grievances were not taken as seriously as those of her subordinate staff.[47]We will remit this part only of the complaint to the Employment Tribunal for it to make a decision and to give reasons and it will decide whether to hear evidence or not about that matter.[48]We turn then to the other issues raised by the Applicant. Principally they relate to the complaint that the evidence of Ms Kemp was ignored. There are few references to Ms Kemp, but some. We have looked at her evidence. It contains some aspects of direct primary evidence by a lay witness; but in very considerable part there is the expression of a legal opinion or an opinion on the merits of the Applicant's case: see for example paragraphs 57, 58 and 61 of her witness statement.[49]The Chairman was shown a very detailed synopsis of the Applicant's case that certain evidence had not been dealt with and in an undated letter received on 9 December 2002 the Chairman, having looked at her notes, said this:
"The matters referred to by the Applicant are a reflection of her view of the pleadings, statements, documents and race relations questionnaire all of which she has annotated; they do not appear to me to relate to the oral testimony of the witnesses aside from their written statements. Whilst I agree that Mr Beirne and Mr Patel gave evidence that in their view the Applicant had been treated unfairly and/or unreasonably, that is merely their opinion. It is my view that their opinion does not equate to evidence that a manager who was white would have been treated differently in the same or not materially different circumstances. I conclude therefore that paragraphs 75 and 79 adequately reflect the Tribunal's findings having heard the evidence and seen the documents put before us. There was no evidence to support the Applicant's contention and therefore (whilst I would be able to provide all of my notes of evidence) I am unable to provide notes of evidence in the terms requested by the order."
[50]It seems to us that although Ms Kemp's evidence is not specifically referred to, it does fall into the same category as the depiction by the Chairman of the evidence of Mr Beirne and Mr Patel. Thus we agree with her that when, on behalf of her Tribunal in paragraphs 75 and 79, she speaks of no evidence, she is correct.[51]We do not consider that this Tribunal, which as was pointed out in argument was diverse, made an error when it described in one part of its reasons Ms Reache as being black, rather than Black African or Black Caribbean, or that it lost sight of the Applicant's case that she was discriminated against on the ground that she was Black African, as opposed to Black Caribbean or white.[52]That central thrust of Ms Misra's case on behalf of the Applicant, therefore, fails. The Tribunal cannot be faulted in its overall decision that each of the claims made by the Applicant failed and we reject the contention that the failure expressly to deal with Ms Kemp's evidence indicated an error of law. As we have noted, the Tribunal is required to make findings upon the principal issues set before it and not on every single matter which it hears.[53]We are satisfied that the Tribunal directed its attention to each of the issues and cannot be criticised on the basis of Anya that it failed to take a holistic approach. There appear to be findings on all of the issues and we have not been shown what might be described as evidentiary or background matters upon which the Tribunal would be required, pursuant to Qureshi , to make findings falling short of conclusions on the basis of discrimination. Put simply, the Tribunal decided this matter by reference to primary findings of fact and, as Ms Slater put it, did not need to resort to inferences.[54]We then turn to the claim of unfair dismissal. In our judgment the principal failing of the Employment Tribunal was not to address, in terms, the allegation by the Applicant that Ms Lines and Dr Turner should not have been dealing with the disciplinary proceedings against her.[55]The submission is justified by the evidence which we have seen, to show that there were, as Ms Misra put it, run-ins and a personality clash between the Applicant and Ms Lines and clear dissatisfaction with the way in which Dr Turner dealt with the Applicant. She was also a witness at the disciplinary hearing.[56]It was submitted that the Respondent, even in this organisation in which the Applicant was pivotal, could have obtained someone other than these two leading actors to deal with the case against the Applicant. For example, Ms Brooke was brought in from outside to conduct an investigation and Mr Cross could have heard the appeal.[57]We thus consider Ms Misra is right when she submits that this Tribunal erred in failing to recognise the seismic fault line which went through the disciplinary proceedings by their having been conducted by Ms Lines and Dr Kay. This is not, in our judgment, simply a procedural matter, since their involvement with the Applicant at an earlier stage has affected the whole of the decision which they made. For this reason the Tribunal erred in deciding that the dismissal was not unfair.[58]We were asked to consider whether we would substitute our judgment. Having heard submissions from both parties on this, we will do so. We find that the dismissal, on the grounds the Respondent put forward, was unfair by reason of the decision making in the disciplinary procedure of the two officers.[59]It follows that this case will be remitted to the Employment Tribunal for it to determine a remedy in relation to unfair dismissal having heard evidence and submissions in relation to contribution and to Polkey vAE Dayton Services Ltd [1988] ICR 142 HL principles.[60]The case will also deal with the remitted matter upon which we have already given directions. We are grateful, again, to both advocates for their careful arguments and for concluding their submissions within the time available. The appeal on unfair dismissal is allowed; and on race discrimination is allowed and remitted in part.