SHAFTESBURY HOMES & ARETHUSA TRADING v DEVON CARNEY [2005] UKEAT 0479_05_1312

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2005] UKEAT 0479_05_1312

Case No Appeal No. UKEAT/0479/05/MAA & UKEAT/0480/05

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

SHAFTESBURY HOMES & ARETHUSA TRADINGAPPELLANTS

DEVON CARNEYRESPONDENT

DEVON CARNEYAPPELLANT

SHAFTESBURY HOMES & ARETHUSA TRADINGRESPONDENTS

Before

Mr Justice Burton

Date 13 December 2005

[1]APPEARANCES For the Appellant (Mr Devon Carney) MS C RAYNER (of Counsel) Instructed by: Messrs Thompson Solicitors Congress House Great Russell Street London WC1B 3LW For the Respondent (Shaftesbury Homes & Arethusa) Ms L McVICKER on behalf of MR N DE MARCO (Of Counsel) Instructed by: Messrs Pinsent Masons Solicitors Dashwood House 69 Old Broad Street London EC2M 1NR SUMMARY Race Discrimination: Direct; Victimisation & Unfair Dismissal: Constructive Dismissal Employment Tribunal judgment delivered 15 months after the (short) hearing, dealt wholly inadequately with claims for victimisation (upheld) and race discrimination and constructive dismissal (dismissed) such that both Claimant and Respondent appealed. Both appeals allowed without opposition at the hearing and remitted to fresh Tribunal. THE HONOURABLE MR JUSTICE BURTON This has been the date fixed for hearing of appeals by both the Claimant, Mr Devon Carney, and the Respondent, Shaftesbury-Homes & Arethusa Trading against the decision of an Employment Tribunal at London (South) after a hearing on 10, 11 and 12 March 2004. We are now in December 2005 and the first and obvious question that arises is why are we now sitting in December 2005 to deal with an appeal against a judgment in respect of a hearing in March 2004, when the system at the Employment Appeal Tribunal is now relatively speedy? The answer is that there was inexplicable and inordinate delay by the Tribunal in the delivery of its judgment. The last date of the hearing, as we have indicated, was 12 March 2004. The ordinary time for even the most difficult of Employment Tribunal cases to come to a judgment is some 3 to 3½ months. Without any explanation given, this Tribunal (chaired by Mr Lincoln Crawford OBE) did not produce its judgment until it was sent to the parties on 10 June 2005 - a wholly unsatisfactory period of 15 months, in respect of a case which was not one of the most difficult.

[2]This delay has not been made the specific ground of appeal by either Appellant in respect of their two appeals, although certainly referred to. But, in our judgment, the delay plainly contributed to the inadequacy of the reasoning of which both parties, Claimant and Respondent, have complained in their respective appeals, and of which we shall give illustration in the course of this short judgment.

[3]This judgment arises in this way. Last week, having read the papers and noted that both parties were appealing quite independently against the Tribunal judgment, we explored with the parties whether a possible acceptable result to both sides was that both appeals should succeed and the matter be remitted to a fresh Tribunal to be reheard: and both sides confirmed that it was, which has saved some cost of a contested hearing. This, of course, is not a happy result for either party in respect of events which were, as we have indicated, the subject matter of a hearing the first time round in March 2004, and related (for reasons which are not entirely clear to us) to events in late 2001 and early 2002, although leading to the resignation of the Claimant in early 2003. But this judgment cannot, by reference to the detailed criticisms of it by both sides, stand, either to its decision with regard to the claim for victimisation (which it found to be established and is now the subject matter of the appeal by the Respondent) or in respect of the claims for direct race discrimination and constructive dismissal, which the Tribunal dismissed, and which dismissal has now been the subject of appeals by the Claimant.

[4]Because we are remitting the matter to an entirely fresh Tribunal in circumstances when that Tribunal will need to start afresh, there is no sense in our analysing the evidence as recorded by the Tribunal or setting out the facts in great detail. It will suffice to explain why it is that the decisions, all three of them, of this Tribunal in respect of the matters which they did deal with, must be set aside, on the basis of the challenges to them by both Claimant and Respondent.

[5]We deal first with the issue of victimisation, which was the subject of the appeal by the Respondent. In order for there to be a successful claim of victimisation by reference to the Race Relations Act 1976 , there must be a protected act as defined by that Act, namely a complaint falling within s2 of the 1976 Act.

(c) which, in material terms, reads as follows:

"2 Discrimination by way of victimisation (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- (a) ….. (b) ….. (c) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person"

. The Tribunal must first identify the protected act and then it must, of course, decide whether there was unfavourable treatment and/or detriment and whether that was "by reason" of the protected act.

[6]A large number of possible protected acts were put forward to the Employment Tribunal at various stages by the Claimant; but of the number of protected acts sought to be relied upon by the Claimant, in respect of his employment by the Respondent as an education adviser, the Tribunal directed itself that it could only address any which ante-dated the alleged unfavourable treatment in March 2002 was, as set out in paragraph 49 of the Tribunal's judgment. It said as follows:

"In the written submission of counsel on behalf of Mr Carney, a number of other acts were cited as protected acts but they all came after 12 March 2002 when the formal complaint of alleged misconduct was made against him by Ms Gentles [who, we interpose, was his immediate line manager]. We accept the submission of counsel on behalf of the respondent that the protected acts must come before and cause the less favourable treatment alleged."

[7]There is no challenge to that approach.

[8]The submission of the Respondent is briefly summarised in paragraph 50:

"The Respondent's case is that Mr Carney did not do anything capable of being a protected act and that if he did; it was not the cause of the less favourable treatment alleged"

. The finding by the Tribunal in relation to the protected act is contained in paragraph 51. "51. We have considered carefully the argument that the Claimant did not do anything capable of being construed as a protected act. We do not accept it. In our Judgment Mr Carney's complaint to senior management that the assault upon him by "SC" [a young boy in his care] was racially motivated and his further complaint about Ms Gentles' failure to warn him about the racist attitude and "SC" were acts done by reference to the Race Relations Act 1976 . As we have shown, no steps had been taken to bring disciplinary proceedings for misconduct against Mr Carney prior to his complaints".

[9]Those two matters, it seems, were thus the alleged protected acts found by the Tribunal which in its view sufficiently founded the causation required by the subsection of the Act. There are, however, fundamental problems in relation to that finding by the Tribunal. First, it was not suggested to the Tribunal by the Claimant that these were such protected acts. It was not the Claimant's case, it was not the content of submissions and, on the case put forward by the Respondent on appeal, there are, in any event, no facts to support any finding that anything of the kind occurred, still less amounted to a protected act. Secondly, even now, in her able Skeleton Argument in support of her own appeal and in opposition to the Respondent's appeal, Ms Rayner of Counsel does not suggest that those were the protected acts upon which the Claimant was entitled to or did rely.

[10]The original plea of protected acts comes in page 13 of a document called "Replies to Respondent's Request for Further and Better Particulars of Originating Application" served in the Employment Tribunal on 5 January 2004 and the reply is in response to a request to specify the protected acts relied upon. The answer was: "The Applicant made protected acts in June 2002 and in January 2003. The Applicant claims that the treatment that he received since his protected acts in June 2002 were acts of victimisation as well as less favourable treatment" and then there is further reference to events after January 2003.

[11]At that stage, therefore, the only protected acts – in June 2002 and January 2003 - being relied upon were acts which, on the subsequent finding by the Tribunal in paragraph 49, which is not sought to be made the subject of challenge, would not have qualified. However, prior to the hearing, in a Skeleton Argument, the Claimant's case settled down, it seems, as follows, in a short document prepared by Ms Rayner for the purpose of summarising the issues. The question that was asked by Ms Rayner of the Tribunal was, in paragraph 4 of that document: Were any or all of the following protected acts within the meaning of s2 Race Relations Act 1976 ?

[12]There were five suggested such protected acts, listed (a)-(f) inclusive: (b)-(f) all post-dated March 2002 (and, indeed, included the events in June 2002 and January 2003 earlier referred to): (a) however reads as follows: "A's grievance against his line manager in December 2001".

[13]Ms Rayner, in her Skeleton Argument before us, submits that that is still her case on the Appellant's behalf, and somehow or other the Tribunal's judgment must be reconstituted so that we can come to the conclusion that, notwithstanding the Tribunal's findings in paragraph 51 (which we have read), not those protected acts - unsupported by argument or fact as we described earlier - but rather the submission of the grievance, upon which she then relied and still does rely, should be deemed by us to be the protected act found by the Tribunal.

[14]It is quite plain that the Tribunal did not so find in its judgment, which we have read. We are not saying that it is not possible for the submission of such a grievance document to have been a protected act. However, without more, it appears to us difficult for the Tribunal so to have found. We have that document, dated 17 December 2001, a two-page letter sent by the Claimant to Ms Eccles (the Assistant Director of Education). That letter does not anywhere make any complaint, on the face of it "under or by reference to" the Race Relations Act. It begins:

"I would like to take up a formal grievance against Sarah Gentles, Manager of Education Service."

It refers to a meeting of 7 December 2001, as to which he complained that only when he arrived did he find out that it was to do with the investigation of the incident with "SC". He complained of Ms Gentles' attitude and approach towards him at that meeting, and that he felt insulted and aggrieved to be constantly subjected to behaviour by Ms Gentles, which he purports to describe in the course of the letter.

[15]It would plainly require careful findings by the Tribunal before they could be persuaded by the Claimant, if persuaded they were, that the sending of that grievance letter amounted to a protected act within the meaning of s2(1)(c), whether by reference to Waters v Commissioner for the Police of the Metropolis

[1997] IRLR 589

, upon which Ms Rayner would seek to rely, or otherwise. Given the fact that it is quite clear to us that the Tribunal did not so find, the question as to whether they could have so found, and whether any of their reasoning begins to establish a case in that regard, does not arise. Certainly, it is the case that the protected acts which they did find (which are not supported by Ms Rayner, as we have previously described, except in her attempt somehow to assert that the Tribunal was not making those findings but was finding that the sending of the letter was the protected act) would have the further problem of the difficulty of establishing causation. Even if it were in some way permissible to find some other protected act, then the Tribunal did not begin, in our judgment, to approach the question as to whether the allegations of misconduct (which plainly followed in February 2002) were in any way by reason of the protected acts which this Tribunal found: whereas if they had managed to find, and another Tribunal were to find, that the grievance constituted such protected act, then the issue of causation might well not arise as a separate question, because it might be considered more easily to follow. If one looks at the mechanism by which the Tribunal sought to make a finding of causation by reference to the protected acts which they had found in paragraph 52 of the judgment, we agree with Mr De Marco, for the Respondent, that they do not succeed in penetrating the haze.

[16]Thus, we have no hesitation in allowing the appeal in respect of the finding of victimisation. It is not the practice of this Appeal Tribunal to allow an appeal by consent. We have described the circumstances in which we are, in fact, taking the matter shortly, allowing both appeals. That could not have been done by consent otherwise than by a concerted approach to the Tribunal to ask us to consider that possibility, on paper; and we would then have needed to have done that which we have done, namely given careful consideration to the papers in order to follow that course, and we entirely understand the difficulty in which both parties would find themselves in suggesting that course. However, the moment that we suggested it last week, both sides accepted the proposed course with alacrity. We have considered the judgment and we are entirely satisfied that the conclusion on victimisation cannot stand, for the reasons we have given.

[17]We then turn to the appeal by the Claimant which, perhaps, shows even more starkly the inadequacy of this judgment. The race discrimination case is approached in paragraph 55 by reference to the Tribunal setting out, in fairly acceptable form, the approach which it is required to follow. There is mention made of s54A of the Race Relations Act 1976 and the need for the Tribunal to consider first whether there is a prima facie case of less favourable treatment on grounds of race and if they are so satisfied, then the onus shifts to the Respondent to give its explanation. The fact that the approach is set out in one paragraph (paragraph 55) is commendable. There is need for lengthy recitation of authority provided that the approach, on its face, is correct. What, however, does not appear to us to be commendable is the fact that the entire consideration by the Tribunal of whether race discrimination was made out either prima facie , so as to transfer the onus, or at all is in one paragraph (paragraph 56) which we now read. "Mr Carney's case is that he was less favourably treated by Ms Gentles who bullied, harassed and humiliated him by comparison with James Wheildon. That Ms Eccles failed to investigate his complaint adequately and that Ms Gentles sought to bring disciplinary proceedings against him". That may or may not be an adequate recitation of the Claimant's case for race discrimination. But it is then dealt with in 2½ lines by the Tribunal, reads as follows: "Having considered the whole of the evidence, we are not satisfied that Mr Carney was treated less favourably on the grounds of race and his claim for race discrimination is hereby dismissed".

[18]Once the Tribunal had, presumably, found the case in victimisation proved on the basis of some kind of satisfaction that race was, in some way, involved in it, it would appear very strange that there was, at any rate, not some consideration of the race issue when the Tribunal came to consider the issue of race discrimination. But, in any event, this sentence is quite plainly wholly inadequate. The Tribunal certainly does not need to set out once again its findings of fact, which it has already done in the early part of the judgment, but it can, where appropriate, refer back to those findings. But it must give some reasoning. It appears to us that this inadequacy of dealing may well be the consequence of the inordinate delay in the compilation of the judgment to which we earlier referred.

[19]Was there, at least, a prima facie case of unfavourable treatment by the Respondent of the Claimant, and if so, on grounds of race? If so, did the onus pass to the Respondent? If so, what were the reasons or explanations put forward by the Respondent for the unfavourable treatment not being on grounds of race, if there was any such treatment, and were they acceptable to the Tribunal, the onus being upon the Respondent, and if so, why? Once again, we do not begin to anticipate whether there is a case for race discrimination as alleged by the Claimant or at all. That is a matter for the Tribunal to resolve. The very fact that we are left completely uncertain as to whether there even is a case is emphasised by the unacceptable brevity of the way in which this Tribunal has dealt with it, and we certainly conclude that it cannot be understood by the Claimant why he lost nor which of the Respondent's explanations, if explanations were required, were found to be acceptable by the Tribunal.

[20]We turn to constructive dismissal, which is dealt with in its entirety in one paragraph which reads as follows:

"57. The Tribunal accepts the Respondent's submission that there was no fundamental breach of Mr Carney's contract of employment. There was nothing the Respondent had done in the days before Mr Carney handed in his notice to resign that could amount to a fundamental breach of his contract of employment. Accordingly, this head of his claim is also dismissed"

. In this regard, there is a very noticeable absence of findings of fact, never mind conclusions of law, which may be indicative of the fact that there were no facts to find, but that is something which we do not know. The stark position is that the misconduct allegations made by the Respondent against the Claimant were made in February 2002. It does not appear that they were ever, in the end, pursued and Mr Carney went into hospital for surgery and was absent from work between 5 August 2002 and 20 January 2003. The Claimant resigned on 21 March 2003.

[21]Once again, we indicate no view one way or the other as to whether there is a case for constructive dismissal, but the concise way in which the Tribunal addressed its conclusion is quite plainly insufficient in relation to a case of constructive dismissal. Were there any breaches of contract by the Respondent? If so, when? Were any of those breaches sufficient to amount to what the Tribunal referred to as a fundamental breach, and if so, on what basis would such be the case or, as they concluded, would such not be the case? In the alternative, were they capable of being concluded, taken together, to amount a fundamental breach? If there were any breaches, either separately or cumulatively, when did they occur and had they ceased, at some stage, in 2002, such that, if breaches there were, they had been waived or acquiesced in? If so, was there or was there not some matter, be it a breach or otherwise, which amounted to an arguable "last straw" such as to revive, if it did, any or all of those earlier breaches and if not, why not?

[22]The dealing by this Tribunal, perhaps again because of the inordinate delay, is quite plainly wholly unsatisfactory. We therefore allow the appeal of the Claimant in respect of the findings on race discrimination and constructive dismissal, as we have allowed the appeal by the Respondent in respect of the finding of victimisation. All these matters will therefore return to a fresh Tribunal. We express two hopes:(i) that after all this time, it may be possible for the two parties to be able to arrive at some satisfactory conclusion short of the distress, inconvenience and costs of a further hearing. We are directing that the papers be referred to ACAS in the hope that they may be able to conciliate.

(ii) that, if this case must go forward for a rehearing, it is, as is quite essential, restored for such hearing as soon as conceivably and practicably possible.