MS O DONOVAN v THE HOUSING CORPORATION [2004] UKEAT 0444_04_2212

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0444_04_2212Case No Appeal No. UKEAT/0444/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS O DONOVANAPPELLANTTHE HOUSING CORPORATIONRESPONDENT
Before
His Honour Judge J R ReidDate 22 December 2004
[1]APPEARANCES For the Appellant MS O DONOVAN (the Appellant in Person) For the Respondent MR PAUL EPSTEIN (of Counsel) Instructed by: Messrs Cobbetts Solicitors Ship Canal House King Street Manchester M2 4WB SUMMARY Sex Discrimination Part-Time Workers A complained she was victimised by not being offered a job when her contract expired: said it was because of racial harassment complaint she had made. Held by ET (unimpeachably) that she was not treated as she was because of her complaint and that the reason she was not offered a full-time job was because of the unreasonable hours she demanded. Appeal dismissed. HIS HONOUR JUDGE J R REID QC This is an appeal from a decision of the Employment Tribunal held at Central London. The hearing took place on 30 September, 1, 8 and 9 October, 22 December of 2003 and 15 March 2004. There was a deliberation between the members on 16 March and the decision was promulgated as a reserved decision on 15 May 2004.[2]By the decision the Tribunal unanimously held that the complaints of the Applicant who is here the Appellant, Ms O Donovan, that she had been victimised under sections 2 and 4(2) (c) of the Race Relations Act 1976 and her complaint of less favourable treatment as a fixed term employee under Regulation 3 of the Fixed Term Employees Prevention of Less Favourable Treatment Regulations 2002 should be dismissed. Ms Donovan appeals against that decision.[3]I can deal very shortly with the third point that she sought to make in her grounds of appeal. She asserted that the Tribunal erred by failing to make a finding as to the nature of her dismissal and that they should have found that she was unfairly dismissed. That is a point which was not open before the Tribunal. It is not open before us.[4]At the time that the IT1 was issued she was still employed by the Respondent Housing Corporation. The IT1 does not make any complaint of unfair dismissal as it indeed it could not have done; see paragraph 1:
"Please give the type of complaint you want the Tribunal to decide (for example, unfair dismissal, equal pay)", under which she has entered: "
Suffered less favourable treatment as a fixed term employee (FTE 2002 Reg 7); Race Discrimination (RRA 1976 + amendment 2002)". Then further on when she filled in boxes 9 and 10, in box 9: "If your complaint is not about dismissal, please give the date when the matter you are complaining about took place: she put "11/06/2003" and she left blank box 10 (for unfair dismissal applicants only).[5]It follows that the Tribunal were entirely correct not to deal with the unfair dismissal point which she has sought to raise before us. That leaves the two substantive matters with which she has come to this Appeal Tribunal. The first is that she asserts that the Tribunal erred in law by dismissing claims of victimisation without taking into account what she described as "the following facts:(a) The decision to terminate the Appellant's contract was taken (31 January 2002) whilst the race complaint was ongoing.(b) The Respondent's decision to remove the job task to the Appellant who is black and given to white staff in another section in order to dismiss her".[6]As to those Mr Epstein points out that there are findings of fact and it is clear that the Tribunal took into account the various matters relating to the race complaint. He says that it was not in fact ongoing at the material time because there had been a complaint which had been made on 30 September, a report produced on it on 5 December and there was a further discussion about that which took place on 22 January 2003. There was then nothing until a grievance was raised on 5 March which was decided on the 7 May 2003.[7]In the course of her submissions Ms Donovan said to us that the Tribunal failed to make a finding in relation to a meeting that she had on 4 February where she said certain matters were raised which related to her initial complaint. We have to say having looked at the note of evidence which she produced in her statement before the Tribunal which purports to deal with this, we are far from satisfied that that was a further continuation of the original complaint. In any event, it seems to us that the Tribunal fully took into account all the matters relating to the race complaint, and it cannot be said that they failed to take them into account in making their decision. We should say in passing that for these purposes it has been accepted that the decision to terminate her contract was taken on 31 January 2002 though there is no finding of the Tribunal to that effect and that may or may not be a correct date.[8]The second of those two points, the decision to remove job tasks of hers, she being black and give them to white staff in order to dismiss her, was the subject of findings: see paragraph 9(2) at page 15 of the Decision. It seems to us, that she has fallen into the trap of suggesting that merely because she was black and that after the reorganisation somebody who is white had taken over the job that she had been doing, that therefore she was subject to discrimination. The Tribunal considered the matter and made positive findings in paragraph 9(2) of the Decision, at page 15 of our bundle that:
"When the Applicant was offered the fixed-term contract to fill the role of Mr Osunwoke who was on secondment, Mr Douglas, for genuine reasons, decided to move the post from the Development Section to the Information Section under Ms Parkinson the job-share Information Manager. Ms Meghani, Ms Parkinson's job-share partner as Information Manager, expressed the view that on Ms Parkinson's return to her substantive post in Maple House on 31 March 2003, she did not want to take on the responsibility of line-managing the post-holder in the Applicant's role. At the same time Mr Douglas knew that Mr Osunwoke, the substantive post-hold would not be returning to the post. For genuine reasons he decided to transfer the post to Regulation, where the duties of the post were absorbed within the roles of two existing members of Regulation. He did not do so because the Applicant had previously complained of race discrimination."
There was a finding of fact that the post was to be transferred to a different department where it could be dealt with by two existing members of staff who had it appears free time in their duties. It follows that complaint too is one which is without substance.[9]The assertion that those matters set out in her grounds of appeal were facts is in any event, in our view, mistaken. What she is doing is asserting contentions which had in fact been rejected by the Tribunal. She went on in her Notice of Appeal to suggest any reasonable Tribunal would consider these actions as clear indication of victimisation. The hurdle to be surmounted in a claim perversity such as this is a very high one. Nothing Mr Donovan said indicated to us that she came within measurable distance of overcoming that hurdle.[10]The second matter that she raised was her evidence that the reorganisation affecting her post was "unprecedented". There is a dispute between the parties as whether this was an accurate description of the evidence that was given. We do not need to resolve that. Whether unprecedented or not, there was no basis for asserting that the Tribunal failed to take into account the evidence that this was an unusual step and that the Tribunal failed to take a proper approach to this in its fact finding and analysis. Its approach cannot be impugned. There is an assertion that this re-organisation was outside any existing policies and procedures, but that does not amount to showing any error of law on the part of the Tribunal. The Tribunal was not dealing with the question of whether this was a situation which had been previously faced; the question was whether Ms Donovan had proved victimisation. The Tribunal held the re-organisation was for genuine reasons.[11]She then moved on to assert that the Tribunal failed to consider whether her race complaint was a protected act. That it seems to us was inaccurate. It is at least implicit in the Tribunal's decision that it was proceeding on the basis that her complaint was indeed a protected act, and it is difficult to conceive that any experienced Tribunal would not have proceeded on such a basis. Ms Donovan then goes on to complain that she was treated less favourably then comparable permanent employees. She took us to four comparators that she would have wished us to look at. Of those, Mr Hewlings, was (the Tribunal pointed out at the time) not an appropriate comparator. The wording of Regulation 3 is:
"A fixed term employee has a right not to be treated by his employer less favourably then the employer treats a comparable permanent employee. (a) regards to the terms of his contract or (b) by being subjected to anyone other detriment by any act or deliberate failure to act as employer."
[12]Note the words: treats a comparable permanent employee. Mr Hewlings was not a permanent employee; he was a fixed term employee who in fact subsequently became a permanent employee. There was no attempt to suggest that he was treated more favourably at any time after he became a permanent employee. The gist of the complaint, as we understand it, was that she was treated less favourably than Mr Hewlings, in that he became a permanent employee. The second of the comparators was Ms Brewster who was a permanent part-time employee who was re-deployed. The Tribunal dealt with her and it made a finding of fact in relation to her that she was not a suitable comparator. Paragraph 9 (1) the Tribunal said:
"Mrs Brewtser was not an appropriate comparator. She was offered part-time work due to health reasons."
Thus, she was not an appropriate comparator.[13]The third comparator was Mr Osunwoke. He was a substantive post holder and Ms Donovan was brought in on her fixed contract to cover his post. The reason that he was not in a comparable situation was that his employment was not terminated by the employer. He was due to return to his substantive post on the 1 April 2003, but before he did so, he resigned. Thus, the question of how he would have been treated on a re-deployment never arose.[14]The last of the comparators that she wished to place before us, was one who had not been placed before the Employment Tribunal and it cannot therefore be suggested that the Tribunal was in error in failing to take account of him, but he too was not appropriate comparator because he too was on a fixed term contract. He was given a permanent post on a trial period without interview, but there is no suggestion that she was treated less favourably than him in relation to any matter that took place after he received his permanent appointment. Thus, even if it were permissible for her to refer to him, as a comparator before us, which it was not, it would have been of no assistance to her.[15]Ms Donovan then moved on to say that the employer was in breach of its obligations because she was not given the full benefit of its code under the Redeployment Code of Practice. It is noteworthy that that code was drafted, as Ms Donovan pointed out to us, before the Regulations of 2002, the Fixed Term Employees Prevention of Less Favourable Treatment Regulations 2002 , came into effect and that the code is apparently not intended to cover people on fixed term contracts. Nonetheless, she was treated by an analogy with full timers. The code provides that the Corporation would seek to ensure a minimum of two formal offers of suitable alternative employment are made within six months of identification of the need for re-deployment. In this instance Ms Donovan was employed on a fixed term contract which initially should have expired on 31 March. As a result of two extensions, it finally expired on 31 July.[16]On Ms Donovan's own case the need for re-deployment was identified no later than 31 January, and she was therefore treated to the six month period to which she would have been treated under the code if fully applicable to her as a full time permanent employee. Secondly, it is to be noted that paragraph 7.1 of the code simply refers to "will seek to ensure a minimum of two formal offers of suitable alternative employment." This does not create an obligation to create particular post for someone who is likely to be re-deployed. In the case of Ms Donovan there were findings of fact by the Tribunal at paragraph 9 (1) of the Decision.[17]In these terms of paragraph 7.1 of the re-deployment procedures it was not possible for the Respondent to make any suitable job offers to the Applicant because of her rigid inflexibility in relation to the hours she was prepared to work. I should say, in parenthesis, that she was prepared only to work 28 hours per week. She preferred to spend her time in the gym rather than increase our hours of work Wednesday morning or Fridays which would have enabled the Respondent to offer her permanent employment. The Applicant's working pattern of 28 hours and no work on Wednesday morning and Friday could not be accommodated in the existing vacancies. Ms Harcourt tried her best. The Applicant was treated no less favourably then any other permanent employee in a similar situation. The Applicant chose to give a priority to her gym and other unspecified personal commitments, than to a need to obtain permanent work. The Respondent would have been able to offer her permanent employment had she been prepared to work full time, 35 hours a week Mondays to Fridays or reduce her hours to 21 hours per week or 17 ½ a week as a job sharer. The Applicant was not willing to consider those options. The reasons given by Ms Donovan to us were that her contract entitled her to work or required to work 28 hours a week and that she was not prepared from budge from that. She had, it appears, other higher priorities. It cannot be said that the Tribunal erred in making its finding of fact. The employer was bound only to seek to provide other suitable posts and seek to ensure the minimum of two formal offers of suitable alternative accommodation are made. There was no absolute obligation to do more. It was Ms Donovan's own intransigence which prevented the employer from providing her with an alternative permanent post.[18]We shall further say that it would not be possible for Ms Donovan to seek to say that a hypothetical comparator would have been treated more favourably. Regulation 3 unlike other discrimination Regulations deals in realities; 3.1 is in these terms (I have already read it once, but to repeat it):
"A fixed term employee has rights not to be treated by his employer less favourably then the employer treats a comparable permanent employee."
Not would "treats or would treat" a comparable permanent employee. In any event, even if a hypothetical comparator were available on the findings of fact, that would not avail her anything because she was treated on the findings of the Tribunal in as favourable a manner. The Tribunal clearly took the view that Ms Harcourt tried her best to accommodate the Applicant, but it was the Applicant's own intransigence which led to her not being offered alternative employment.[19]It follows therefore that none of the grounds that have been raised in this appeal are made out. Ms Donovan was not victimised, nor was she less favourably treated. The Tribunal reached the decision which not only was it one that it was justified in reaching , but it was one which on the facts as it found them was quite clearly correct both as a matter of fact and a matter of law. The appeal will therefore be dismissed.