MS E C MAGAGNIN v CHIEF CONSTABLE OF THE WEST YORKSHIRE POLICE [2005] UKEAT 0653_04_0903

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0653_04_0903Case No Appeal No. EAT/0653/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS E C MAGAGNINAPPELLANTCHIEF CONSTABLE OF THE WEST YORKSHIRE POLICERESPONDENT
Before
His Honour Judge J R ReidDate 9 March 2005
[1]APPEARANCES For the Appellant MS SANDHYA DREW (of Counsel) Instructed by: Messrs Thompsons Solicitors Arundel House 1 Furnival Street Sheffield South Yorkshire S1 4QL For the Respondent MR DAVID JONES (of Counsel) Instructed by: West Yorkshire Police Legal Services Police Head Quarters Laburnum Road Wakefield West Yorkshire WF1 3QP HIS HONOUR JUDGE J R REID QC This is an appeal from a decision of an Employment Tribunal held at Leeds (Mr AJ Simpson chairman). After a hearing lasting nineteen days and two days deliberation the Tribunal held that the Applicant's claim of sex discrimination by victimisation contrary to section 4 of the Sex Discrimination Act 1975 was not well founded. The decision was promulgated on 10 June 2004. The hearing did not run smoothly and at the end, having considered whether to make a costs order of its own volition, the Tribunal made no order for costs, having come to the view that each side had contributed to the excessive costs incurred as a result of the inappropriate conduct of the case.[2]The appeal concerns both procedural and substantive matters.[3]The Applicant was employed as a civilian Senior Administrative Officer within the Special Branch of the West Yorkshire Police Force ("the Force"). She was line-managed by a serving police Inspector who in turn reported to a Chief Inspector who was the operational head of the Special Branch. He in his turn reported to the Detective Chief Superintendent heading the Crime Operations Department. The Applicant's employment commenced on 6 March 1989. From then until 1999 she worked full-time. She then took maternity leave. Some eight months after her return in August 2000 she was allowed to reduce her working hours to 30 hours per week because of her parental responsibilities. In May 2002 she was notified that her post would disappear in an administrative re-organisation intended to save the Force a substantial amount of money. On 8 August 2002 she was removed from her duties on the grounds that she had become disaffected and a security risk. She continues to be employed by the Force but since that time has been on sick leave.[4]DCI"A" had been appointed to head Special Branch in February 2001. He had a mandate to reorganise Special Branch, which had previously been something of a backwater supervised by officers coming to the end of their careers. In addition he was required (despite his objections) to contribute to finding savings of £200,000 a year required by the Detective Chief Superintendent. His management style, and in particular the way he sought to push through changes within Special Branch, was on occasions inappropriate and on other occasions gave rise to considerable concern and dissatisfaction from those he was managing.[5]DCI "A" perceived that the Applicant's hours were not beneficial to Special Branch. On 5 October and 14 November 2002 the Applicant and DCI "A" had meetings. An important issue was her hours, which DCI "A" said he would be reviewing in light of increased workload following recent events and the future relocation of the unit. His view was that her absence for several hours a week was noticeable in terms of the lack of effective administrative support. The latter meeting was attended by the Applicant's Trade Union representative, Rachel Hemingway, and by Dl "B". The Applicant's hours were not changed.[6]It was the Applicant's case that Ms Hemingway had raised the issue of sex discrimination at the meeting of 14 November and that as a result the question of altering her hours was not pursued. The Tribunal rejected the suggestion that the question of sex discrimination was raised. It "inclined to the view that the assertion by the Applicant and her representative that sex discrimination had been mentioned at the meeting on 14 November was introduced later to bolster her case". The Tribunal did however find that there was mention of the Applicant's childcare difficulties. It went on to remark that "it could be argued, therefore, that the Applicant's family circumstances were at least an oblique reference to the fact that as a single working mother she may be faced with difficulties. This in turn could have pointed towards the possibility of discrimination if any action were taken regarding the Applicant's hours." It was further suggested on behalf of the Applicant (and not accepted by the Tribunal) that DCI "A" was not happy at being unable to implement the change he wished. The Tribunal accepted that DI "A" had been told he could not insist on her altering her hours and that once it became apparent the Applicant would not agree to an alteration, the issue was left at that and not revisited.[7]On 13 May 2002, the Applicant was notified that her post would disappear in the course of the proposed re-organisation. It was her case that this was as a result of the meeting of 14 November and her declining to work more hours per week. This case was rejected by the Tribunal. The Applicant was criticised by DCI"A" and by DCS Milsom, over her reaction to the news of the deletion of her post. On 14 May Ms Hemingway, wrote to DCS Milsom about deletion of her post. On 17 May DCI"A" requested removal of the Applicant from Special Branch. This request was refused by DCS Milsom.[8]At meetings on 4 and 17 July (the latter meeting being with members of the Diversity Unit) the Applicant made complaints of sex discrimination and of victimisation under the 1975 Act . Her complaints were initially referred to the Force's Discipline and Complaints Unit but were referred on to the Diversity Unit, with the approval of the Applicant and her Trades Union representative. There was no subsequent request for the matter to be referred back to the Discipline and Complaints Unit at any stage. At a meeting on 23 July and e-mail on 24 July, DCI"A" renewed his request that the Applicant be removed on the ground she had become disaffected and posed a security risk. His request was acceded to and the Applicant was removed on 8 August.[9]As stated above, the Applicant remains employed by the Respondent but has been on sick leave since her removal from her Special Branch post.[10]Before the hearing, because of the nature of the work of the various police witnesses consideration was given to ways in which their identity could be protected. The result of this was a ruling that for the appropriate parts of the case the Tribunal would sit in private, and it did so for the evidence of several witnesses, one of whom was a civilian police employee. It appears, however, owing to an error after the relevant witnesses had finished their evidence there was what must have been a short period when the hearing continued with a "private" sign still hung on the door. When this was noticed the sign was immediately reversed so that the sign was no longer showing.[11]The Employment Tribunal dealt at an early stage with a preliminary issue as to whether the Originating Application made claims both of sex discrimination and of victimisation. It held that the application raised only three instances of what was said to be victimisation and that it was too late for the Applicant to seek to raise a case of sex discrimination. Leave to amend to add a considerable number of allegations of sex discrimination was refused. The case therefore proceeded as a victimisation case in relation to the three specified instances.[12]Logically the first of the grounds of appeal (though not appearing first in the notice of appeal) was that the effect of the hearing being in part in private was to render the decision unlawful and so a nullity. Counsel for the Applicant relied on Storer v British Gas [2000] IRLR 495 in which the Court of Appeal held that there was a statutory requirement (subject to very limited exceptions) for a hearing to be held in public and where a hearing was conducted in private, even though no member of the public had sought to attend, the hearing was unlawful. The Court held that under RSC O.59 r.10(3), which was then in force, the Court had a power to remedy the defect in any way from remitting for a rehearing to concluding no re-hearing was necessary. In that case the Court held that the holding of the hearing in public was both fundamental to the function of the tribunal and important in its own right and therefore the case should be remitted for a re-hearing. Counsel also referred to the Human Rights Act 1998 and Article 6 of the Convention and to XXX v YYY [2004] IRLR 137.[13]The powers in the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2001 under which a Tribunal can decide to sit in private are contained in rules 8 and (10)3 of Schedule 1. Rule 8(1) enables a minister in certain circumstances to direct that the hearing take place in private or that steps are taken to conceal the identity of a particular witness in Crown employment proceedings. Rule 8(2) enables a Tribunal, if it considers it expedient in the interests of national security, by order to do anything it could be required to do by direction under rule8(1). Rule 10(3) is directed at hearing evidence in private to maintain the confidentiality of the information being given by the witness concerned. It is not a regulation intended to protect the identity of the witnesses concerned.[14]The position in this case was that there was a consent order pursuant to rule 8(2) at a directions hearing on 2 April 2003 for the evidence of Special Branch officers to be given in private. That direction clearly remained in force although other directions then given were subsequently altered because of the delay in the anticipated hearing date as a result of an appeal to the Employment Appeal Tribunal on a question of disclosure. There was then an attempt by the Tribunal to see if instead the officers' evidence could be given from behind screens, and a direction was recorded at a further directions hearing on 10 February 2004:
"The Regional Chairman will enquire of the Regional Secretary as to whether or not a form of screen can be erected around the witness table in Tribunal J so as to facilitate a public hearing and at the same time protect those witnesses who need protection. [Afternote: Screens are already in place in Tribunal J so that it may be possible to arrange them in order to provide anonymity to witness giving evidence.]"
Unfortunately it emerged that the screens were only five feet high and were so positioned that the officers (a) would be clearly visible to the public on entering and leaving and (b) would be invisible to counsel whilst at the witness table. The result of this was that the Tribunal decided that (in accordance with the subsisting direction) the evidence of the officers should be heard in private. No objection was taken to that decision at the time.[15]In our view the Applicant cannot now complain about what happened. There was an order made by consent for the private hearing so far as these witnesses were concerned. Whether the Tribunal was right or wrong in deciding that the proceedings were properly to be regarded as Crown employment proceedings when it made the original direction, that order was never the subject of appeal (and indeed could not have been since it was made by consent) and it remained in place. The Tribunal went out of its way to try to ensure as public a hearing as possible. What it did was not the subject of any objection at the time. The Tribunal took the pragmatic view that it did, bearing in mind not only the rights of the Applicant but also the rights of the officers to be protected and the interests of national security. In these circumstances even if the Tribunal conducting the hearing had been in error in allowing the evidence to be given in private (which, in the light of the earlier direction, in our view it was not), having taken full account of the importance of the statutory requirement for the hearing to be in public, we would have regarded this as a case where no remission or re-hearing was necessary.[16]Different considerations apply to the hearing of the evidence of the civilian witness (a computer consultant) in private. His evidence was not the subject of the earlier direction and objection was taken at the hearing. The Tribunal decided to hear his evidence in private under rule 10(3). In his case in cross-examination, in the view of the Chairman expressed when asked to comment of an affidavit submitted on behalf of the Applicant in furtherance of her appeal, "gave significant detail in relation to issues concerning special branch machines and procedure and the information technology implications which arose." In our view the decision was not only one which when made was well within the judicial discretion of the Tribunal but also one which subsequent events showed to be entirely justified.[17]The remaining point taken as to the hearing being in private was in relation to the failure to remove the "Private" sign from the hearing room door as soon as the evidence being heard in private was concluded. As soon as the error was noticed it was corrected. In our view this error was de minimis and cannot lead to either to a holding that the hearing was illegal or to an order for a re-hearing of the case.[18]The second procedural issue related to the Tribunal's refusal to allow an amendment of the Applicant's claim. On the afternoon of the second day of the hearing (the first day having been a reading day) counsel for the Applicant submitted that the claim was both one of direct discrimination and one of victimisation. She referred to the IT1 which identified the claim as "Sex discrimination/victimisation" and then gave details:
"This claim is based on three acts of discrimination/victimisation. 1. That the claimant's proposed redundancy was an act of victimisation following a complaint she made of sex discrimination in October 2001. The decison to propose redundancy amounted to less favourable treatment on the grounds of sex. 2. That the refusal of the employers on the 19th July 2002 to follow up a complaint of sex discrimination was an act of less favourable treatment following the making of the complaint. 3. That the removal of her from her duties in August 2002 was an act of victimisation following the making of the sex discrimination complaint in July 2002."
There were then particulars of these three incidents. There were no references to any other matters of complaint.[19]Counsel, on the basis that there was a claim of direct discrimination under section 1, submitted that she should be allowed to raise a whole string of other issues. The Tribunal indicated that it regarded the claim as being one of victimisation simpliciter . Counsel then asked for leave to amend to raise these additional matters. Counsel for the Respondents opposed this application, submitting that he and his clients had come to the Tribunal prepared to address only the three issues raised by the IT1. He pointed out that the point of pleadings was to enable a party to know the case it had to meet and that if the case had been put as one of direct discrimination rather than one of victimisation different considerations would have applied and such matters as comparators would have had to be considered. The Tribunal refused leave to amend and directed that the case proceed as a claim for victimisation under section 4 of the Sex Discrimination Act and only in relation to the issues raised in the IT1.[20]Before the Employment Appeal Tribunal counsel did not seek to say that the decision to refuse her to introduce a whole raft of new complaints was wrong. Instead she argued that the Tribunal was wrong to hold that the IT1 did not raise a case under section 1 of the[21]Sex Discrimination Act in respect of the three matters complained of in the IT1, or alternatively there was no prejudice in allowing the claim to be amended so as to raise a direct discrimination case in respect of those three issues.[22]In our judgment there is no substance in her submission that the initial complaint did identify a complaint under section 1 of the Act as well as one under section 4. The expression "sex discrimination" can be used to encompass both direct discrimination and discrimination by victimisation. In each case the complaint is made under the Sex Discrimination Act 1975 . When one looks at the whole of the IT1 there is nothing to indicate that there is any intention to make a claim under section 1 as opposed to section 4. The entirety of the IT1 is addressed to the incidents said to found the claim in victimisation and the language used is the language of a claim in victimisation. The Tribunal were entitled to take the view that it expressed in paragraph 7 of its decision and hold(1) the Respondent had approached the case on the basis that it was a claim under section 4 only,(2) the Respondent might well be prejudiced by having at that stage to face a completely different case,(3) the last matter complained of was 18 months previously, and(4) it was a very late stage for the Respondent to have to consider the question of comparators, real or hypothetical. It cannot be said that there was any error of law either in the Tribunal's construction of the IT1 or its refusal to allow an amendment.[23]Even if we had taken the view that the Tribunal was wrong not to admit a claim for direct discrimination, it is clear that (given the Tribunal's findings of fact on other matters) the claim would have failed. The only matters identified to us from which it was said an inference of discrimination could have been drawn were the views apparently expressed by two officers in the course of cross-examination that the Applicant's role was too highly graded. Even if such views were something from which sex discrimination could be inferred (which we doubt), the other findings of the Tribunal would have made it inevitable that the sex discrimination claim would have failed.[24]As to substantive grounds of appeal, counsel for the Applicant started from the well known case of Anya v University of Oxford [2001] IRLR 377 and then referred to section 63A of the 1975 Act . She rightly submitted that it was for the Tribunal to make the necessary findings of primary fact, and if an applicant has proved facts from which the inference could be drawn that the respondent has treated the applicant less favourably on the grounds of sex, then to look to see if the respondent has discharged the onus placed on him of showing that the treatment was not by reason of the fact that the applicant had committed a protected act. She submitted that since such evidence will normally be in the hands of the respondent alone cogent evidence will be required to discharge the burden. She criticised the Tribunal for not making express reference to Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332 to which both parties had referred in their arguments below.[25]Counsel submitted that the Tribunal was required to assess and reach conclusions as to the evidence on(1) the protected act,(2) the less favourable treatment and(3) the reason for the treatment. She then identified three areas in which it was said that the Tribunal had failed to make the necessary findings of fact.[26]First Counsel, seeking to sidestep the fact that the Tribunal had rejected her client's evidence as to the occurrence of the first "protected act" (ie her raising the question of sex discrimination at the meeting of 14 November 2001), picked on the Tribunal's statement in relation to the meeting of: "it could be argued, therefore, that the Applicant's family circumstances were at least an oblique reference to the fact that as a single working mother she may be faced with difficulties. This in turn could have pointed towards the possibility of discrimination if any action were taken regarding the Applicant's hours," and submitted that the Tribunal had failed to make the findings which it ought to have done "as to what was suspected or known by the Respondent as to the Applicant's future intention".[27]It was further argued that the Tribunal "erred in law in appearing to hold that the Applicant's claim was not capable of falling within section 4 of the 1975 Act" but should have held that there was a protected act whether or not she had referred to the question of sex discrimination at the meeting and that she had suffered detriment even though the suggestion she should vary her hours was immediately dropped when it was made clear she would not agree to do so. It was said that since the Act is a protective one, it should be construed broadly.[28]These submissions are unsustainable. The case put was that the Applicant had raised the question of sex discrimination at the meeting. The Tribunal rejected her evidence on that point. There was no need for it to make any further findings on the point, nor was there any indication that there was any material on which any such finding could have been based. The Tribunal dealt with case pleaded fully and properly. Given the absence of any protected act, the Tribunal did not have to go on and make findings of fact about any less favourable treatment or the reason for such treatment arising from the non-existent protected act. In any event the Tribunal was entitled to hold that a request to the Applicant to alter her hours which was not pursued did not amount to less favourable treatment.[29]The Tribunal went on to find that, although the deletion of the Applicant's post would have been less favourable treatment, the decision to make the Applicant's post redundant was not linked to the meeting of 14 November. The Tribunal held that DCI "A" only agreed to lose the Applicant's post in the spring of 2002 after he was pressed for cost savings by the Chief Superintendent. Her post was then only put forward reluctantly. There was therefore a finding of fact that there was no less favourable treatment by reason of anything which occurred at the 14 November meeting.[30]In order to overcome the difficulty presented by this finding of fact counsel submitted that it was perverse. She submitted that there was evidence that the Applicant's post had been put forward for deletion on 20 November 2001. It is true that there was such evidence from one witness but it is clear that the Tribunal did not accept it. No serious argument was presented to us to show how it could be said that the Applicant surmounted the high hurdle that has to be cleared before a finding of perversity can be made, as to which see per Mummery LJ in Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440 at para 33.[31]The second of the Applicant's complaints related to the alleged failure of the Respondent from 19 July 2002 to follow up a complaint of sex discrimination consequent on her selection for redundancy. The complaint was re-formulated in counsel's closing submissions at the Tribunal hearing as being a complaint that the Discipline and Complaints Unit did not proceed to investigate her complaint but referred it to be investigated by the Diversity Unit and this was an act of victimisation. The Tribunal found that the matter had been referred at the suggestion of the Diversity Unit and with the consent of the Applicant and her Union representative. There had been no request thereafter for the matter to be dealt with by the Discipline and Complaints Unit. Other officers who had issues with DCI "A's" handling of matters had had their complaints referred to the Diversity Unit against their express wishes.[32]Counsel submitted that the Tribunal took an "erroneously restrictive view" of this complaint, that the Tribunal should not have held there was no refusal to transfer the complaint back because there was no request that it be transferred, and that the Tribunal should not have relied on the fact that other officers had had their complaints referred to the Diversity Unit against their wishes without making findings about the nature of those complaints.[33]None of those complaints is of any substance. The Tribunal dealt with the complaint as presented to it. It was correct to make the point that there could be no substance in the complaint that the matter had been dealt with by the Diversity Unit when that was done with the consent of the Applicant and she had never thereafter asked for the matter to be dealt with by the Discipline and Complaints Unit. As to the point that the Tribunal should have made findings as to the nature of other complaints transferred to the Diversity Unit, this was little more than a postscript, and in context required no expansion by reference to the nature of the other complaints.[34]The third complaint related to the Applicant's removal from her duties. The Tribunal held that the Applicant had done the protected acts, namely making a complaint of sex discrimination at the meetings of 4 and 17 July 2002. It also held that her removal had been "less favourable treatment". The Tribunal went on to hold that the rationale for removing the Applicant was because she was considered to be a security risk as a result of her having become disenchanted with the way DCI "A" was running his department.[35]DCI "A" had formed this view following a meeting on 13 May when he had informed her of the intended abolition of her post. There was apparently evidence from both sides about a number of incidents though we were not asked to look at any notes of evidence about those incidents and the Tribunal did not think it necessary to make findings about them. What the Tribunal did find was that DCI "A" did have genuine concerns, although "it might well be those concerns were unfounded" and that it was not surprising given the sensitive nature of the work carried out by Special Branch he sought approval for the Applicant's redeployment. On 17 May he had written a memorandum setting out his concerns and his reasons for them to the Chief Inspector responsible for personnel matters and to DCS Milsom. The memorandum was not acted on at that time. On 23 and 24 July he repeated his request to DCS Brown, who had by this time taken over the role of DCS Milsom, and (through him) to ACC Maxwell. At this stage the request was acted on. The Tribunal held the reason for the request was as stated by DCI "A" and, pointing out that the original request antedated the protected act, rejected the suggestion that the renewed request was in some way to penalise the Applicant for the protected act. This was a conclusion to which the Tribunal were entitled to come. There was evidence to support it, and whilst there were inconsistencies in the evidence adduced it was for the Tribunal to make its findings as to what it accepted and what it rejected. Having done so, it was for the Tribunal to determine whether it was, as it said it was, satisfied on balance as to the rationale behind the applicant's removal. The findings made adequately disposed of the point, including the alternative point, faintly raised before us, that the doing of the protected act made DCS Brown and ACC Maxwell more receptive of the renewed request.[37]It follows that, all the Applicant's grounds of appeal having failed, the appeal must be dismissed.