MR M RUBERY v H M PRISON SERVICE AGENCY [2003] UKEAT 0418_02_2503

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2003] UKEAT 0418_02_2503

Case No Appeal No. EAT/0418/02

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR M RUBERYAPPELLANT

H M PRISON SERVICE AGENCYRESPONDENT

Before

Mr Justice Burton

Date 25 March 2003

[1]APPEARANCES For the Appellant MR M McCLUGGAGE (of Counsel) Instructed by: Messrs Lees Lloyd Whitley Solicitors Castle Chambers 43 Castle Street Liverpool L2 9TJ For the Respondent MR P COPPEL (of Counsel) Instructed by: The Treasury Solicitor Queen Anne's Chambers 28 Broadway London SW1H 9JS THE HONOURABLE MR JUSTICE BURTON (PRESIDENT) This is the appeal by the Applicant, Mr Rubery, against the dismissal of his claim by the Employment Tribunal sitting at Manchester on 1 November 2001, the Decision being handed down on 6 March 2002, for victimisation by the Respondent, Her Majesty's Prison Service Agency. Before the Tribunal, the Appellant brought two claims, one for discrimination and one alleging victimisation; both were dismissed, but he appeals only against the dismissal of the victimisation claim.

[2]The circumstances can be very shortly set out. He wrote a memo dated 8 April 2000 to the Governor of H M Prison, Risley, which was headed up:

"Re Allegations of Racial Nature", and in material part it read as follows: "

Sir, I am writing to you about a matter which is causing me increasing concern and stress affecting my work and private life. For what is now the third time I find myself having to defend my name from totally unjustifiable racial allegations, and I feel the time has now come to bring this matter to your attention as the usual avenues appear to me to be unsatisfactory." He then set facts from his point of view in relation to accusations which he alleged to be wholly unfounded, that had been made against him by black or mixed race prisoners, alleging that he had discriminated against them on racial grounds, and denying those facts and alleging that he had not been properly dealt with by the authorities who, on his case, had been too favourable towards the, as he saw it, unjustified complaints by the prisoners. His memo ended as follows, each page being headed up "Allegations of Racial Nature":

"I am beginning to feel that there is a "

Get Rubery" conspiracy on the wing, although I have no idea why I should be singled out. I am writing to you therefore to ask that this matter be dealt with once and for all. A clear message must be sent to those of a malicious nature that the Race Relations Policy is in place to ensure equality of treatment and opportunity for all, not as an ace up the sleeve for those of an ethnic or religious minority with a grudge. If you are unable to deal with this problem then I must regrettably inform you that I may then be obliged to use the full extent of the Race Relations procedures and beyond in order to seek public redress to restore my good name." He sent copies of that memorandum, as was made clear at the bottom of it, to the Governor, to whom the memorandum was addressed, the Deputy Governor, Prison Office Slattery, who, as we understand it, was his direct superior, Senior Officer Plumb, who was named in the memo as having been supportive of him, and the POA, the Prison Officers Association. The response to that memorandum, the Tribunal found, was to transfer him to lesser duties, duties which he had in fact done some time before, and from which he had been transferred into his then present job, and he saw this, and indeed the Tribunal so found, as effectively a de-grading of his position. It was in respect of that that he claimed race discrimination.

[3]The Tribunal set out its findings of fact in paragraph 7. The somewhat unusual background is that the decision to transfer had been take by P O Slattery, but she was not called as a witness by the Respondent. In her absence, therefore, the Tribunal had to do the best it could, by reference to those witnesses that it did hear, including the Deputy Governor of the relevant prison, and looking at documents, but it is quite clear that the central issue arose out of the sending of that memo and the consequence of its being sent. The findings, in relevant parts, can be very shortly referred to. At the end of paragraph 7(viii) and the beginning of 7(ix), the Tribunal set out as follows, that. "(viii) ….. The Tribunal accepted that the applicant wanted the position to be investigated and inmates at the prison made aware that the complaints procedure was not to be used to satisfy a personal grudge. He was hoping for a quick investigation but most importantly hoping to be exonerated. He also wanted the respondents to convey a message to prisoners that they should not make baseless allegations. There is, critically, however, an indication that the applicant might pursue his complaint elsewhere if he is not satisfied with the outcome." We specifically refer to that last sentence. The next sub-paragraph begins:

"(ix) Almost immediately the applicant is transferred from his fixed post on "cleaners" back to correspondence duties."

[4]The explanation that was put forward by the Respondent to the Tribunal for this transfer was one that was not accepted by the Tribunal, being, effectively, that this was an administrative move or an operational move. In rejecting that suggestion, the Tribunal concluded that it was:

"not satisfied on the evidence that this was an operational move, entailing the transfer of a number of officers …. In any event this job on correspondence was a job that the applicant in his long employment with the Prison Service had done previously. The respondents did not even attempt to suggest that this could be viewed as part of the applicant's career progression nor did they suggest that there was anything in the applicant's previous employment history that indicated a need for further training on his part in correspondence duties."

[5]The Tribunal set out the law, which of course is contained, so far as the victimisation claim is concerned, in sections 2 and 4 of the Race Relations Act 1976 . Section 2(1) provides as follows:

"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 or not the allegation so states) would amount to a contravention of this Act."

Section 4 relates to the particular unlawful discrimination to be relied upon, and sets out in sub-paragraph (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 - …. (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."

The Tribunal referred to a number of authorities, including King -v- Great Britain China Centre [1991] 1RLR 513 , and Nagajaran -v- London Regional Transport

[1999] IRLR 573

and Chief Constable of West Yorkshire -v- Khan

[2001] IRLR 830

[6]The Tribunal's findings in respect of the relevant elements of the tort and victimisation were as follows: (1) The Transfer of the Appellant was because he had sent the memo. We quote from paragraph 22 of the Decision:

"Clearly P O Slattery transferred the applicant because he had had the temerity to send his memorandum" (2) Such transfer was a detriment.

(c) , and their findings at paragraph 18 are: "

The Tribunal was prepared to find that this amounted to a detriment because both the applicant and to a certain extent the respondents accepted that this was a step backwards in the applicant's career progression." They also found that this was less favourable treatment, in the sense that they concluded, as we have indicated, that it was because he had complained and thus was treated less favourably than an officer who had not put in a memorandum. There is no cross-appeal in respect of those findings.

[7]The Tribunal further concluded that the sending of the memorandum was a protected act, within the meaning of section 2(1)(c) of the Act. It appears to us that they could as well have concluded, as they did, that it was within the Act for another reason also, namely that within section 2(1)(d) it was an allegation that the discriminator had "committed an act which, (whether or not the allegation so stated) would amount to a contravention of the Act"; but it was sufficient for the Tribunal to find that it had fallen within 2(1)(c), namely that the memo, containing the contents to which we have referred, was something "done under or by reference to the Act in relation to the discriminator". It is, perhaps, not the most usual of victimisation cases, because this applicant was white; but it is not a complicated or far-fetched example. This is not, for example, someone who feels that they are discriminated as a result of the colour of someone else's skin, which, even then, might, on the basis of established authority, come within the meaning of the section; this is someone who was alleging in the memorandum that he had been discriminated against because he was white, and in favour of prisoners who were not white.

[8]There is a cross-appeal against the finding that the memo amounted to a protected act; that cross-appeal is set out in the answer, as follows:

"The Respondent maintains that the writing of that memo cannot properly be characterised as something "done …..under or by reference to the Race Relations Act". "

It is asserted in the answer that further grounds/findings of the Tribunal, which would be fully particularised in the Respondent's Skeleton Argument, might be relied upon further by way of cross appeal, but that has not been pursued. It can be seen that the cross-appeal was relatively exiguous, and it has to depend upon a conclusion that the Tribunal was perverse in arriving at the conclusion it did. Mr Coppel fairly accepted that the cross-appeal was not a strong one, and left it, as he put it, for the Tribunal to consider in the peace of its room, if it thought there was anything in it. We do not think there is anything in it. The finding that the Tribunal erred in this regard would require a conclusion that no reasonable Tribunal could have concluded that the sending of the memo was an act done under or in reference to the Act, when its contents are, as we conclude, clear, both by virtue of the context of the letter and its heading and the nature of the complaint, but in particular by virtue of the last paragraph of the letter, which we have quoted. Consequently, it cannot be said that it was perverse of the Tribunal to reach the conclusion that it was a protected act in the circumstances; but it is a long way from the conclusion that it was not perverse for the Tribunal to reach the conclusion that it was a protected act, to reach the opposite conclusion, namely that no reasonable Tribunal could have done other than find that it was a protected act; and those on the face of it, are the boundaries of the argument that has ranged before us. But it is not at all a clear conclusion by this Tribunal, as we will now indicate.

[9]At paragraph 21 the Tribunal sets out its conclusions, apparently, on protected acts, as follows:

"Had the applicant taken a protected act? The Tribunal although with some hesitancy it has to be said, concluded that the memorandum could just bring itself within the meaning of section 2(1)(c)."

It can be seen that the words used are "could just", we conclude that the word "just" is there to show that it may have been a near run thing, and although the words "could just bring itself" are used, it is not intended simply to refer to the potentiality of such a conclusion, but rather to amount to an actual conclusion; because it is quite clear that the Tribunal has reached such a conclusion when it comes to consider the matter further in paragraph 22 of the Decision, to which we shall further refer.

[10]The Tribunal continues:

"The only basis however that the Tribunal could rely on for drawing this conclusion was the use by the applicant in the final paragraph of his memorandum of 8 April 2000 of the words " or beyond"

. The Applicant used this phrase (in fact it was " and beyond")in the context of an assertion on his part that he was prepared to use not only the race relations procedures but go beyond that. He also used the phrase "public redress". The Tribunal was prepared to draw the conclusion that this was a vague allusion to the "provisions of the Race Relations Act." We find it difficult to see why the Tribunal concentrate on the words "or beyond" or regard the reference as "vague", when there is in fact the plain terminology in the letter "using the full extent of the race relations procedures" which must of itself infer a claim that he himself is being or has been discriminated against. The Tribunal continues in paragraph 21:

"The Tribunal was prepared to conclude that these two phrases within the memorandum were just sufficient to bring the applicant within the ambit of the phrase "otherwise done anything under or by reference to this Act"

. Then there are the words upon which Mr Coppel has relied:

"The Tribunal accepted however that it was not clear cut and certainly it was not immediately obvious to anyone other than a person familiar with the legislation that this is what was envisaged or might have been envisaged by this phrase."

We shall return to that .

[11]There is, however, a finding, to which Mr Coppel has taken exception by his cross appeal, with which we have dealt, that the sending of the memo, particularly with its last paragraph, was, albeit just, a protected act. The Tribunal, however, notwithstanding the finding that the sending of the memo was a protected act, and that the detrimental transfer occurred because the Appellant had sent the memorandum, nevertheless do not put those two facts together to establish liability, and paragraph 22 has therefore to be addressed in order to see how the Tribunal failed to make what one would have thought would have been the consequential finding that if he was transferred because he sent the memo, and the sending of the memo was a protected act; he was therefore transferred because of the protected act. The words are as follows:

"However that lack of clarity made the applicant's task more difficult when the question was answered as to whether the commission by the applicant of a protected act was the "real reason" or the "core reason" for the response of P O Slattery. Mr Coppel in his closing submissions argued that P O Slattery or for that matter any other individual receiving this memorandum would not have immediately understood that the applicant was making reference to the Race Relations Act in its broadest sense."

[12]The reference to the "broadest sense" appears to be a cross-reference to the case of Aziz -v-Trinity Street Taxis Ltd

[1988] IRLR 204

, in relation to a document in which the complainant said that the possibility was beginning to form in his mind that what had happened might amount to a form of racial discrimination, and that correspondingly some form of legal redress might be available to him, was found to be enough to entitle an Employment Tribunal to find that the Appellant had done an act by reference to the Act. That appears from paragraphs 28 and 29 of the judgment of Slade LJ, and paragraph 29 of that judgment continues:

"The phrase 'by reference to' is in our judgment, a much wider one than 'under' and should be read accordingly. An act can, in our judgment, properly be said to be done 'by reference to the Act' if it is done by reference to the race relations legislation in the broad sense, even though the doer does not focus his mind specifically on any provision of the Act."

[13]It appears to us that the example of what occurred in Aziz , which was found to fall within the Act, is a close one to the case here and, if anything, the facts here are a fortiori in terms of incorporating reference to intent to proceed under the race relations legislation "in its broadest sense". The Tribunal continued:

"The Tribunal agreed with this proposition. It is inconceivable that any individual let alone P O Slattery would have deduced from the memorandum that Mr Rubery was arguing that either the Prison Service or more likely the three inmates in question were doing something that might amount to a breach of the Race Relations Act or related anti-discrimination legislation. Clearly P O Slattery transferred the applicant because he had had the temerity to send his memorandum but her response should be seen solely in that context. This was a manager receiving a memorandum that had been copied to all senior managers within the prison at Risley. Whilst the Tribunal was prepared to accept that the action of the manager was in response to that memorandum and that the memorandum did refer to allegations of racism made against the applicant, it was not a protected act, namely the contention that the prison service or prisoners had contravened race relations legislation, that prompted the response of P O Slattery. It could not be said that the assertion by the applicant that he was prepared to take his grievance elsewhere and seek public redress was the core reason or the real reason for the decision taken by P O Slattery. Therefore although there had been a protected act on the part of the applicant it was not that protected act that motivated P O Slattery either consciously or unconsciously. Adopting the words of Mr Coppel it is inconceivable that P O Slattery on reading this memorandum and in particular the section quoted above would have understood that Mr Rubery was obliquely referring to race relations legislation. The necessary link between her response and the protected act complained of therefore had not been made out and the applicant's claim for victimisation failed."

[14]It is apparent that Mr Coppel, who appeared before us, as he appeared for the Respondent below, succeeded before the Tribunal, by dint of some hard work and some good advocacy, and it appears to have been his submissions which the Tribunal adopted; but we conclude that it was not a correct interpretation or use of the legislation to carry out the exercise which they did, and we are persuaded by Mr McCluggage, who has appeared before us today and ably argued the matter, representing the Appellant for the first time, that Mr Coppel is indeed wrong, as was, therefore, the Tribunal in accepting his submissions.

[15]Before turning to the authorities, it may be worth looking again at the way in which the Tribunal found itself able to reach the apparent conclusion it did. It appears that there was a combination of looking at the contents of the letter, and construing it down in some way, so as to regard it as vague, or oblique at best, with which we cannot associate ourselves in reading the memo in its perfectly understandable form, as set out above, and of attempting to ascribe some other motive to the Respondent for acting as they did, overriding or subsuming the finding that it made which was that it was the sending of that memo, with the contents apparent, which caused the transfer.

[16]We deal with the second way of approaching it first. This appears to be something which arose in the light of the Tribunal rejecting the actual reason that was put forward by the Respondent, namely the administrative or organisational reason, to which we have referred; and it is worth recollecting that it is made, in any event, in the absence of the person who carried out the transfer, so that there was not even the excuse or reason of having listened to the evidence of someone strenuously explaining away what might otherwise follow as a matter of course, and thus preferring to accept what was put before them through her evidence. None of that occurred, and thus the Tribunal did not have any extra ammunition arising out of her oral evidence, which would enable them to reach a conclusion. Mr McCluggage suggests that there should have been an adverse inference drawn against the Respondent by virtue of the absence of their witness; we do not see that it is necessary to form that conclusion. The simple fact is that the Tribunal did not have the benefit of her evidence, and made the finding it did that it was the sending of the memo which prompted the transfer.

[17]It is against that background that the Tribunal found itself in the position of articulating some other reason than either the organisational one or what would appear to us to be the obvious content of the memo; and for that one goes to paragraph 20 of the Tribunal's Decision, which reads as follow:

"As far as the change of duties was concerned the most that the Tribunal could infer from the facts was that the applicant was being singled out for a petty response on the part of his employer not because he had made allegations that raised the spectre of racism but solely because he was in the Tribunal's view undermining the authority of his manager by firstly questioning the decision to transfer him and secondly copying his grievance to managers senior to P O Slattery. On the facts the Tribunal was not prepared to draw the inference that the decision of P O Slattery was anything other than an unprofessional and irrational retaliation on the part of a manager whose managerial decision had been questioned."

In the course of argument, Mr Hodgson put to Mr Coppel the question as to whether that paragraph was not misconceived. It suggested that the transfer or, at any rate, the decision to transfer, came before the sending of the memo, when in fact, as indeed the Tribunal itself found, the decision to transfer came after the memo, and Mr Coppel, who had originally put forward this paragraph in the very forefront of his submissions, as indicating the thought processes of the Tribunal, was, understandably, forced to backtrack and, indeed, to attempt to find some other justification. It is plain that the Tribunal are incorrect in the descriptions and conclusions that they set out in this paragraph.

[18]Given the finding that they later make that the memo was the cause of the transfer, it plainly cannot have been the transfer which caused the memo. It is not right that P O Slattery can have been upset as a result of the memo "questioning the decision to transfer him", because that decision to transfer him had not occurred, or even been thought of. Consequently, it cannot be right to characterise the decision of P O Slattery as "unprofessional and irrational retaliation on the part of a manager whose managerial decision had been questioned", because she had not yet taken that managerial decision. The whole basis of paragraph 20 is, in those circumstances, untenable and falls away.

[19]Mr Coppel seeks to rescue paragraph 20 by suggesting that the memo, which cannot have been a criticism of the managerial decision of P O Slattery to transfer the Applicant, for the reasons that we have just given, must have been, or can be seen to have been, criticism of some other managerial decision of P O Slattery, for example, some failure on the part of P O Slattery to carry out the earlier investigations into prisoners' complaints; but there is not a sign of that in paragraph 20, and, more important, there is not a sign of that in the memo. P O Slattery is not named in the memo, nor is any alleged managerial decision of hers the subject of any criticism; if anyone is criticised, it would appear to be the Deputy Governor, in relation to the conduct of some of the investigations. There may have been, of course, upset on the part of P O Slattery that a copy of the memo was being sent to the Governor - we do not know because nobody heard from her - but it would hardly seem particularly significant that a complaint which is being made, which involves at least a Deputy Governor and relates to investigations of prisoners' complaints, is being sent not only to her immediate superior, but also to the Governor and Deputy Governor. There is, in our judgment, nothing in paragraph 20 which can begin to put forward any alternative explanation, even if it were relevant or necessary in the light of the Tribunal's own findings as to the reason for the transfer.

[20]The other basis on which the Tribunal appears to shy away from what we conclude to be the inevitable conclusion, once they had made the findings of fact they did, was this suggestion that the memo was not clear-cut, was not immediately obvious to anyone other than a person familiar with legislation, and, indeed even higher, and this is where we return by cross-reference to what we said earlier in this judgment, that it was "inconceivable" that any individual, including P O Slattery, would have deduced from the memorandum that the Prison Service was doing something that might amount to a breach of the Race Relations Act . We cannot begin to conceive how the clear words of the last paragraph of that memo could not be so read by a reasonable person, indeed, would not be so read; and indeed, we are far from convinced, particularly as the Tribunal did not hear from her, that P O Slattery herself would not have been someone who was, at least, to be expected to be familiar with the legislation, even on the pretty narrow approach taken by the Tribunal in paragraph 21. But all this argument which, in any event, we conclude is to no purpose, only demonstrates the inappropriateness of this exercise, in our judgment.

[21]Once the conclusion has been reached that the document was a protected act, amounting to a threat or a complaint, involving the possible use of race relations legislation, and that the Appellant suffered a detriment, namely the transfer, because of his having sent that memorandum, it is in the context of the inadvisability, save in the most extreme cases, some of which were canvassed in argument before us, of going behind such a finding, that the problem has arisen. The reason why it is apparent that there was some attempt to go behind it, in the light of Mr Coppel's understandable desire to find some way of succeeding on behalf of his clients, in case, as indeed turned out to be the case, the other hostile findings were made against them, can be illustrated in the two decisions to which we were referred, Nagarajan and Khan .

[22]Mr McCluggage referred to the plain terms of Lord Steyn's speech in Nagarajan . Lord Steyn with whom also the other members of the House agreed, including Lord Nicholls in a separate speech, disapproved of any interpolation into race relations legislation of the need to find a motive, and Lord Steyn's very clear conclusion at paragraph 42 of his speech is, by reference to an academic article by Jennifer Ross in 1990 53 MLR 391, the following:

"She said that the obiter dictum of Slade LJ" [and that is in Aziz ] "

'wrongly emphasises the underlying motivation of the alleged discriminator rather than the immediate cause of the unfavourable treatment.'" Lord Steyn simply said he agreed, and that appears to us to be the clear result of Nagarajan . The underlying motivation must be disregarded or otherwise one is going to get into this kind of problem that the Tribunal entered into here, which is "Well, here is this memorandum, it did contain the threat of the use of racial discrimination legislation, but, even without hearing P O Slattery, we are satisfied that it was not that which caused the problem, it was simply resentment at receiving such an impudent memo per se". Of course, that will always be a difficult question in any event, and, if applicable generally, would lead to many cases of victimisation escaping simply because the onus of proof is, at the end of the day, on the applicant, who may not be able to establish it to the full if he or she cannot get inside the mind of the doer, or sender, of the offending act, or document, particularly if that person is not called as a witness. But we do not conclude that that is the appropriate course; we equally do not conclude that injustice will be done if that is not the case, because, of course, if in an appropriate case it is apparent, after hearing evidence, that a tribunal cannot be satisfied that it was the content of the relevant memo, for example, which caused the detriment, it will so conclude.

[23]Mr Coppel, and indeed Mr McCluggage, referred us to the case of Chief Constable of West Yorkshire Police -v- Khan where, in all lower courts, the conclusion was reached that the act of the Chief Constable in question amounted to victimisation, and that was, in that case, a refusal to give a reference because of fear of prejudicing the Chief Constable's case before a Tribunal; and it was found before a Tribunal and upheld that that was the reason for the non-giving of the reference, and that did not amount to victimisation. That appears to us to be a completely different question, and certainly one which is not comparable with a case in which the Tribunal has made the specific finding that the sending of the memorandum was a protected act, and that the detriment resulted from the receipt of that memorandum. Lord Nicholls, in his speech in Khan , at paragraph 29, said this:

"From the many events leading up to the crucial happening, the court selects one or more of them, which the law regards as causative of the happening. Sometimes the court may look for the 'operative' cause, or the' effective' cause;. Sometimes it may apply a 'but for' approach;. For the reasons I sought to explain in Nagarajan -v- London Regional Transport [1999] IRLR 572 , 575-576, a causation exercise of this type is not required …. The phrases 'on racial grounds' and 'by reason that' denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact."

There is nothing in Khan which causes us to doubt the applicability of Lord Steyn's central test in Nagarajan or which ought to have led the Tribunal to walk the tightrope that it did.

[24]This is not, or at any rate, not primarily, a perversity appeal. This is an appeal based on the fact that the Tribunal bolted on an additional and inappropriate question, on the facts of this case, to the proper approach to the race relations legislation. It was a simple case in which they concluded that P O Slattery, who did not in fact give any evidence anyway, received this memo and as a result transferred the Applicant to his detriment. As she gave no evidence, which might perhaps, in certain circumstances, have provided some other explanation, they were left to construe the documents themselves, and, in our judgment, it was inappropriate of them to carry out the exercise they did, there was no call for them to do it, and in any event it led them to reach the wrong conclusion. There had been a protected act on the part of the Applicant; motivation such as they referred to in paragraph 22 of the Decision is irrelevant, and it was the protected act which caused the detriment, on their own finding. Consequently, they ought to have concluded that there was victimisation, and we allow the appeal.