WANDSWORTH BOROUGH COUNCIL v MR K WARNER [2005] UKEAT 0671_04_0607

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0671_04_0607Case No Appeal No. UKEAT/0671/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
WANDSWORTH BOROUGH COUNCILAPPELLANTMR K WARNERRESPONDENT
Before
His Honour Judge Peter Clark Mr D Bleiman Mr D G SmithDate 6 July 2005
[1]APPEARANCES For the Appellant MR JOHN CAVANAGH QC (of Counsel) Instructed by: Messrs. DMH Solicitors 40 High Street Crawley West Sussex RH10 1BW For the Respondent MR NICHOLAS TOMS (of Counsel) Instructed by: Messrs Thompsons Solicitors Congress House Great Russell Street London WC1B 3LW SUMMARY Race discrimination -and- Unfair Dismissal Adequacy of reasons. The Employment Tribunal substitution of own view (unfair dismissal and direct race discrimination). Perversity. Delay by the Employment Tribunal in promulgating decision. HIS HONOUR JUDGE PETER CLARK This is an appeal by Wandsworth Borough Council, the Respondent before the London (South) Employment Tribunal chaired by Ms C Hyde promulgated with Extended Reasons on 20 April 2004 upholding the Claimant, Mr Kelvin Warner's, complaints of direct racial discrimination and unfair dismissal. We shall refer to the parties as described below. Factual Summary[2]The Claimant, a black British man, commenced a period of continuous employment with the Respondent or its predecessor on 5 May 1998. In July 2000 he worked as a Landlord Liaison Officer in the Council's Housing Benefits Office.[3]On 11 October 2000 an incident occurred in the call centre contained within the building in which the Claimant worked involving the Claimant, his then girl-friend, Jennifer Thompson, who worked in the call Centre and her supervisor, Kerry Essop, who was of Asian ethnic background. As a result both the Claimant and Ms Thompson took out a grievance against Ms Essop on 22 October 2000. That led to an unsuccessful reconciliation meeting held on 14 November 2000. That was followed by complaints made against the Claimant by:(1) Ms Essop. She alleged, first, that on 16 November 2000 she and the Claimant passed each other and "he lifted both arms up and out and touched her on the arm in an intimidating fashion". Her response was to say "Sorry Kelvin". Secondly, that on 24 November 2000 the Claimant, in the Tribunal's words, "invaded her personal space by brushing the left side of his body against her as he reached with his right hand for a piece of stationery from the booth occupied by the person seated next to Ms Essop".(2) Mr Lord, a Manager, that the Claimant had deliberately bumped into him on 28 November 2000.(3) By Mr Murphy, another Manager, that the Claimant had bumped into his shoulder, also on 28 November 2000.[4]A disciplinary investigation into these complaints was carried out by Mrs Smith, Contract Manager and Mrs Murray-Chen, Head of Departmental Support. Having carried out a series of interviews with those involved in the complaints no disciplinary charges were then levelled at the Claimant arising from those complaints.[5]Following a period of sick leave from 26 January 2001 the Claimant was immediately suspended on his return to work on 12 March 2001 pending two unrelated complaints made against him by Mr Fletcher (a canteen worker) and by a former girl-friend, Ms Davis. Mr Fletcher's complaint, that the Claimant had said "You better watch your back or else", was not pursued to a disciplinary charge; Ms Davis's initial complaint of harassment was similarly not pursued.[6]However the Claimant remained on suspension. In September 2001, the Tribunal found (Reasons paragraph 79) a decision was taken by Mrs Murray-Chen and, reluctantly, Mrs Smith, in consultation with Ms Bland, Personnel Officer, to pursue disciplinary proceedings against the Claimant in respect of the Essop, Lord and Murphy complaints after it had become clear that the Fletcher and original Davis allegations were unsustainable. In October 2001 the Respondent conducted a further investigation into an allegation that the Claimant had improperly failed to disclose his relationship with Ms Davis, who was a housing benefit claimant.[7]On 4 January 2002, following a recommendation by Mrs Smith and Mrs Murray-Chen that the Claimant's behaviour towards Essop, Lord and Murphy amounted to deliberate and serious abuse towards them with intent to intimidate those Supervisors, the Claimant was required to attend a disciplinary meeting which was held on 14/15 January charged(a) with the second allegation relating to Ms Davis and(b) gross misconduct in relation to the original complaints, dating back to November 2000, made by Essop, Lord and Murphy. Following that disciplinary hearing he was summarily dismissed for gross misconduct by Mr Barr on the basis of the complaints by Essop, Lord and Murphy. He found that there was insufficient evidence to support the charge of impropriety in respect of Ms Davis.[8]The Claimant's internal appeal against the decision to dismiss him was rejected by the Staff Management Sub-Committee on 18 July 2002, by which time he had commenced these Tribunal proceedings. The Claimant's Case[9]The Tribunal helpfully summarise the Claimant's case as to unlawful race discrimination and unfair dismissal at paragraphs 3-4 of their Reasons thus: In relation to racial discrimination:
"(1)The Applicant (Claimant) denied any wrong doing. He believed that the allegations by Mr Lord, Mr Murphy and Ms Essop would not have been made if he had been white. (2) The Applicant believed that the investigation against him was carried out with undue enthusiasm and vigour by Ms Smith and Ms Murphy-Chen and Ms Blan. The Applicant believed that the investigation was carried out with a view to recommending his dismissal and was not approached by the investigators in an objective way. The Applicant believed that this was due to his race. In similar circumstances, the Applicant and Ms Thompson's complaint against Ms Essop was not investigated with the same vigour and enthusiasm. (3) A white colleague, Tommy Regan, had assaulted Mr Lord by grabbing him around the neck. This incident was far more serious than any allegations made against the Applicant, yet no investigation had been carried out against Mr Regan and Mr Regan was not suspended, dismissed or in any other way disciplined. (4) The Applicant believed that when the Investigators discovered that Ms Davis' allegations against him were unfounded, the investigators tried to substantiate other allegations about his failure to disclose his relationship with Ms Davis. The Applicant believes that this would not have been done if he had been white. (5) The manner in which the Applicant had been treated throughout the period from November 2000 to the way in which the investigation against him was carried out, to his dismissal, amounted to race discrimination. The Applicant believed that he was stereotyped into an aggressive violent black man."
[10]In respect of the unfair dismissal complaint the Applicant accepted that the Respondent's reason for dismissal was misconduct. He denied any wrong doing or misconduct. He contended that the dismissal was unfair on the following grounds:
"(1) That no reasonable employer would have reached the conclusion that the Applicant was guilty of any misconduct. (2) That the Respondent failed to carry out a full and proper and objective investigation. (3) That even if the allegations of Mr Lord, Mr Murphy and Ms Essop were true, dismissal was not a just sanction in all the circumstances."
The Tribunal's Reasoning Racial discrimination (1) Less favourable treatment[11]The Claimant relied on two comparators for the purpose of showing prima facie less favourable treatment and a difference in race. They were Ms Essop (Asian) and Mr Regan (white). The Employment Tribunal was not satisfied that the Claimant was treated less favourably than Ms Essop in the investigatory procedure followed by the Respondent in their respective cases (Reasons paragraph 159).[12]The Tribunal made detailed findings of fact concerning 'the Regan Incident' at paragraphs 115-127 of their Reasons. In August 1993 Mr Regan was suspended following an allegation of assault made against him by Mr Lord, one of the complainants against the Claimant. The background, the Tribunal found, was that that Mr Lord accused Mr Regan of putting rotting food into a Supervisor's office fridge. According to Mr Lord an altercation then took place during which Mr Regan put his finger into Mr Lord's face in anger. Mr Regan denied physical contact with Mr Lord and in this was supported by a majority of the witnesses present. The disciplining manager, Mr Heywood (Director of Finance), concluded that he could not establish that a physical assault took place; he found Regan guilty of serious misconduct and administered a severe reprimand and final warning by way of penalty. The warning was to remain on his record for two years, although on appeal the Panel considered that it should be reviewed by the director after one year.[13]The Tribunal found (Reasons paragraph 161) that a proper comparison could be made between the way in which the Claimant was treated and that afforded to Regan and that the Claimant was less favourably treated in the way in which the disciplinary investigation was carried out in his case, as compared with Regan. Secondly, the Tribunal accepted that he showed prima facie less favourable treatment on the part of the investigators, particularly Mrs Smith, Mrs Murray-Chen and Ms Bland in failing to approach their investigation objectively and in trying to substantiate a second allegation in respect of Ms Davis after the first was found to be unsubstantiated.[14]The Tribunal was not satisfied that the Respondent had rebutted the presumption of unlawful discrimination, applying the new burden of proof regulations, inserted at Section 54A of The Race Relations Act 1976 . In reaching their overall conclusion they appear to have taken into account a number of factors, including the Respondent's failure to investigate similarities with the Regan incident during the Claimant's disciplinary hearings and the attitude of Mr Erridge, Head of Personnel, to a complaint of racism made on the Claimant's behalf by his trade union representative, Mr Daley, the Unison Black Workers Group officer. Unfair Dismissal[15]The principal finding by the Tribunal, applying the Burchell test to this dismissal by reason of conduct, as explained and approved by the Court of Appeal in Post Office v Foley [2000] IRLR 827 , was that dismissal fell outside the range of reasonable responses open to the employer (Reasons, paragraph 168). In arriving at that conclusion the Tribunal, we think, took into account their earlier findings that no reasonable employer would have found the matters in respect of which the Respondent found the Claimant guilty amounted either individually or as a whole to incidents of gross misconduct (Reasons, paragraphs 147) and that the dismissal was unfair in that a reasonable employer would have taken a suspension of ten months originally imposed on other grounds into account when deciding whether to continue with disciplinary action and what penalty to impose on a finding of guilt. The Appeal[16]Mr Cavanagh QC has organised his submissions under four separate, but interrelated heads. It is convenient to take them in the following order. (1) The Tribunal's Reasons[17]Mr Cavanagh submits that the Tribunal's reasons were inadequate (non "Meek-Compliant") and confusing. He reminds us of the importance of tribunals giving a properly reasoned decision and of following a logical process of reasoning, stressed by the Court of Appeal in Anya v University of Oxford [2001] ICR 847 , paragraphs 12; 19-26, per Sedley LJ, following the criticisms made by the Court of the Industrial Tribunal's reasons, long and ill-organized, in Marks & Spencer PLC v Martins [1998] ICR 1005, 1010D-1011F, per Mummery LJ.[18]His first complaint is that the formal Decision does not fit together with the Tribunal's later Reasons. We have earlier set out the Decision. As to paragraph 1(i) it is argued that no reasons are given for that finding; however, we think that the findings encapsulated at paragraph 79, to which we have earlier referred, support the Tribunal's conclusion at paragraph 1(i) and (ii) of their Decision. True it is that there are no specific findings to support the observation at Decision paragraph 1(iii) that the Claimant was stereotyped as an aggressive violent black man. However, like Mummery LJ in Hendricks v Commissioner of Metropolitan Police [2003] IRLR 96 , paragraph 48, we do not find references to racial stereotyping particularly helpful in the context of complaints of unlawful racial discrimination under the Race Relations Act and are not satisfied that such observation was necessary to this Tribunal's overall conclusion of unlawful discrimination. More substantively, the Tribunal's conclusion at paragraph 1 (iii) of their Decision that the manner in which the Claimant was treated throughout the Respondent's investigation, we think compared with the case of Regan, is amply supported by their subsequent findings to which we have adverted. (2) Substitution[19]It is now well-settled law that it is not for the Employment Tribunal to substitute their own view for that of the employer. This is particularly so when considering the question of fairness in a complaint of unfair dismissal, see Iceland Frozen Foods Ltd v Jones [1982] IRLR 439 , approved in Foley , and cited to this Tribunal (Reasons, paragraph 133). It is also true when considering complaints of unlawful direct discrimination, see Martins 1019G-1020F, per Mummery LJ.[20]We agree with Mr Cavanagh that during the course of their Reasons the Tribunal appear to make findings of fact as to the underlying complaints which led to the Claimant's dismissal. For example, at paragraph 152 the Tribunal express themselves not to be satisfied on the balance of probabilities that either physical contact had taken place or had taken place in the way alleged by Mr Murphy or Mr Lord, based on their earlier analysis of direct evidence relating to those incidents, eg. at paragraphs 33, 43 and 103; at paragraph 156 they conclude that the decision to bring major offence disciplinary action and then to find those offences proved and to dismiss were "gross overreactions" and at paragraph 168 they find that the decision to dismiss fell outside the band of responses of a reasonable employer to the conduct they should have found .[21]We have anxiously asked ourselves whether those observations by the Tribunal are such as to vitiate their conclusions, both as to race discrimination and unfair dismissal. In our judgment they do not. Dealing first with the finding of racial discrimination, we are satisfied that it was for the Tribunal to find as fact whether Mr Regan was the true comparator for the purposes of Section 3 (4) of the 1976 Act. This they did permissibly. Secondly, it was necessary for the Tribunal to assess the motivation of the investigators in pursuing disciplinary charges which had earlier lain dormant (see Reasons paragraph 79). In determining whether the Respondent had discharged the onus placed upon them to disprove prima facie discrimination they were, it seems to us, entitled to form their own view as to Mr Erridge's reaction to Mr Daley's complaint of racism. All of these were matters for the fact-finding tribunal, not for this tribunal on appeal.[22]As to the finding of unfair dismissal, we attach particular importance to the Tribunal's finding, at paragraph 147 of their Reasons, that no reasonable employer would have concluded that the matters in respect of which the Respondent found the Claimant guilty amounted either individually or as a whole to incidents of gross misconduct. That seems to us to be a clear finding that even on the Respondent's case (regardless of the view of the underlying facts formed by the Tribunal) dismissal fell outside the range of reasonable responses open to the Respondent. That is a permissible conclusion in our view.[23]It follows that our conclusion is that although in the course of their reasons the Tribunal strayed into doubtful areas of fact-finding, their decision on both heads of claim is supported by permissible findings based on a proper approach in law. (3) Perversity[24]We are conscious of the high hurdle placed before appellants relying on this ground of appeal, see Yeboah v Crofton [2002] IRLR 634 , paragraphs 92-95, per Mummery LJ. It is not our function to retry the facts.[25]Mr Cavanagh points to certain errors of fact contained in the Tribunal's Reasons. For example, as Mr Toms' accepts, at paragraph 90 the Tribunal wrongly recount that at the claimant's disciplinary hearing Mr Barr heard evidence from Ms Thompson; Mr Barr was not involved in the earlier Regan investigation (cf Reasons, paragraph 38); other statements of fact are said by Mr Cavanagh to be inaccurate. Mr Toms takes issue with that characterization. Put shortly, we are not satisfied that any such inaccuracies are sufficient to found the perversity ground of appeal. We shall return to their further relevance when considering the final ground of appeal, delay.[26]More generally we have carefully considered the Tribunal's Reasons as a whole and have then stood back to consider the question, can it be said that no reasonable Employment Tribunal, properly directed as to the law, could reach the conclusions reached by this Tribunal on the facts as found? Our emphatic answer is no. (4) Delay[27]Originally this ground of appeal was placed at the forefront of the amended grounds of appeal settled by Mr Cavanagh, who did not appear below. The point then taken was that delay by the Tribunal in promulgating its Decision rendered the Decision unsafe. The relevant chronology was that the Tribunal heard the case over 8 days between 14-17 April and 28-31 October 2003. The panel then met in private to consider their decision on 26-27 January 2004. A Decision, with reasons, was finally promulgated on 20 May 2004. In advancing that formulation of the first ground of appeal Mr Cavanagh relied on the Employment Appeal Tribunal judgment delivered by Burton P in four appeals heard together, the lead case being Kwamin v Abbey National PLC [2004] ICR 841 . The fourth of those appeals was the case of Bangs v Connex South Eastern Ltd . Each case involved a substantial delay between termination of the Tribunal hearing and promulgation of the Tribunal's decision. For example, in Bangs written closing submissions following the oral hearing were completed and exchanged on 15 August 2002. The Tribunal decision was finally promulgated on 18 August 2003, one year later, following private deliberations held by the Tribunal on 22-23 August 2002, 8 April and 25 June 2003. In Kwamin the delay from final day of hearing to promulgation was 14 months.[28]In three out of four of those cases, including Bangs , Burton P and members held that the decision was unsafe and the appeals were allowed. The Employment Appeal Tribunal held that an appellant must show a material error or omission showing that there was a real risk that there had been a failure of recollection on the part of the employment tribunal so as to establish that the decision is unsafe.[29]At the outset of the hearing before us we raised with Counsel the question as to whether the Court of Appeal had pronounced on the subject of delay in promulgation following the EAT judgment in Kwamin . As a result of further researches by Counsel and those instructing them we were referred to the Court of Appeal decision in Bangs [2005] EWCA Civ 14 , since reported [2005] IRLR 389 .[30]At paragraph 43 of the leading judgment, with which Dyson LJ and the President agreed, Mummery LJ set out seven principles to be applied on appeal where the complaint is that there has been an unreasonable promulgation of an employment tribunal decision (now judgment).[31]Material to the present appeal is, first, that the Court of Appeal took a different view to the Employment Appeal Tribunal in that unreasonable delay per se does not give rise to an appealable point of law. Nor do material factual errors and omissions resulting from delay render the decision 'unsafe' so that it may be set aside on appeal. It is necessary to further show perversity in the legal sense and we have earlier rejected Mr Cavanagh's submissions on that part of the appeal.[32]However, Mummery LJ did allow of exceptional cases in which unreasonable delay in promulgation of the Tribunal's decision can properly be treated as a serious procedural error or material irregularity giving rise to a question of law justifiable on the basis that the appellant was deprived of his right to a fair trial under Article 6(1) of the Convention.[33]In these circumstances Mr Cavanagh applied, without opposition from Mr Toms, to re-amend the grounds of appeal to recast ground (1) to fit in with that formulation of a permissible ground for complaint.[34]Is this an 'exceptional case'? We are not persuaded that it is. The delay consisted of three months between the end of the hearing and the two day meeting of the Members of the Tribunal for discussion and a further period of just under four months before the decision was promulgated. We have compared the facts in Bangs . Despite the delay of twelve months from close of submissions to promulgation the Court of Appeal was not persuaded that the right to a fair trial had been nullified or that it would be unfair or unjust to allow the decision to stand for the reasons given by Mummery LJ at paragraph 51. Those reasons apply equally to the present case. Conclusion[35]Having considered the various ways in which this appeal has been put, we are not persuaded that any error of law on the part of the Tribunal such as to vitiate part or all of its decision is made out. Consequently the appeal is dismissed.