MS CAROLE PALMER v DUNEDIN CANMORE HOUSING ASSOCIATION LTD [2006] UKEAT 0004_06_0607

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2006] UKEAT 0004_06_0607Case No Appeal No. UKEAT/0004/06Venue 52 MELVILLE STREET, EDINBURGH, EH3 7HF
Between
MS CAROLE PALMERAPPELLANTDUNEDIN CANMORE HOUSING ASSOCIATION LTDRESPONDENT
Before
Lady Smith Mrs A E Hibberd Mr J Keenan McIpdDate 6 July 2006
[1]APPEARANCES For the Appellant Mr O'Carroll (Advocate) Messrs Thompsons Solicitors 16-18 Castle Street Edinburgh EH2 3AT For the Respondents Mr Kennedy (Solicitor) SUMMARY The claimant alleged that she had been victimised contrary to the provisions of s.2(1) of the Race Relations Act 1976 . The tribunal were satisfied that the claimant had carried out a protected act and that she had been treated less favourably than an appropriate comparator. The tribunal were of the view that the respondents acted unreasonably in disciplining the claimant but they were not satisfied that there was any direct evidence or evidence from which it could be inferred that that treatment was by reason of her having carried out a protected act. The Employment Appeal Tribunal were not persuaded that their conclusion was a perverse one nor that they should have considered whether the claimant had carried out a protected act under a subparagraph of s.2(1) of the 1976 Act that was not founded on. THE HONOURABLE LADY SMITH Introduction This case concerns a claim of victimisation in the context of racial discrimination. It is an appeal by the claimant in those proceedings against the judgment of an Employment Tribunal sitting at Edinburgh, Chairman Mr A Worthington, registered on 3 August 2005, rejecting that claim. The claimant was represented by Ms Fox, trainee solicitor, before the tribunal and by Mr O'Carroll, advocate. The respondents were represented by Mr I Kennedy, solicitor, before the tribunal and before us.[2]We will refer to parties as claimant and respondents. Background[3]The respondents are a housing association which owns some 1500 houses and runs a hostel. At the relevant time they employed senior managers including a woman named Fiona Stringfellow. She reported to the respondents' director, Ewan Fraser. The manager of the hostel reported directly to Fiona Stringfellow. The claimant was employed as a housing and support worker based at the hostel. She reported to a group of co-ordinators who, in turn, reported to the hostel manager. Fiona Stringfellow was, accordingly, considerably senior to the claimant.[4]In 2004, a former colleague of the claimant's began tribunal proceedings against the respondents in which she alleged racial discrimination. Her claim included allegations about an event which had been witnessed by the claimant. As is explained in more detail in the tribunal's judgment, the respondents' solicitor, Mr Kennedy, decided that he required to interview a number of the respondents' employees including the claimant, who appeared on the colleague's list of witnesses. A date was set for the interviews and Fiona Stringfellow met with those employees to explain that they would be required to meet with Mr Kennedy on a particular date. She followed up that meeting with a letter to each of the employees concerned, including the claimant, in which she advised:
'You must attend on the time and date required.'
[5]The claimant did not attend on the time and date specified. Again the details are specified in the tribunal's judgment. It is sufficient for present purposes to note that she had to attend hospital with her daughter that day. The manner of her intimating her non-availability was, however, such that, in the tribunal's findings, Fiona Stringfellow felt 'incredibly undermined'. It seemed to her that the claimant was failing to react in a positive and proactive manner in respect of a serious and reasonable management instruction and that she had no intention of keeping the appointment that was originally made with Mr Kennedy. A distinction could be drawn between her and another employee, Kevin Brodie, who, as soon as he realised that he would be on night shift on the date of the planned meetings, advised the respondents and took reasonable steps to fix an alternative time.[6]The claimant gave evidence on behalf of her ex colleague at the subsequent tribunal hearing. Thereafter, disciplinary proceedings were commenced against her, the outcome of which was that she received a written warning in respect that she had failed to understand the seriousness of a direct management instruction and to make every effort to respond to it timeously. As a result, her annual bonus was restricted by £150. Relevant Law[7]The relevant victimisation provisions are contained in s.2(1) of the Race Relations Act 1976 which provides:
"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 or does so by reason that the person victimised had (a) brought proceedings against the discriminator or any other person under this Act: or (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act; or (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 or by reason that the discriminator knows that the person victimised has done, or intends to do, any of them."
[8]As the tribunal correctly summarise, that means that there are three stages to consider. Firstly, whether the employee carried out whichever of the four activities set out in (a) to (d) (generally referred to as 'protected acts') are founded on, secondly whether the employer has treated the employee less favourably that he treats or would treat others in the same circumstances and thirdly whether he has done so by reason of the fact that he knows that the employee has done or is intending to do a protected act.[9]Comparators can be actual or hypothetical, as the tribunal correctly recognised. It is not, however, necessary to construct a hypothetical comparator if an actual one can be identified, as happened in this case.[10]When it comes to the third stage, it is important to bear in mind, as it was put so clearly and succinctly by Elias J, in Law Society & Ors v Bahl [2003] IRLR 640 , whilst all unlawful discrimination is unreasonable, not all unreasonable conduct that an employer directs towards an employee of minority race or colour is discriminatory. The focus is on the reason or reasons. Why did the employer act as he did? The importance of this was stressed by Elias J at paragraph 100 of Bahl , where he said:
"By contrast, where the alleged discriminator acts unreasonably then a tribunal will want to know why he has acted in that way. If he gives a non-discriminatory explanation which the tribunal considers to be honestly given, then that is likely to be a full answer to any discrimination claim. It need not be, because it is possible that he is subconsciously influenced by unlawful discriminatory considerations. But again, there should be proper evidence from which such an inference can be drawn."
On the other hand, if a claimant leads evidence from which an inference of discrimination could be drawn according to the Igen Ltd v Wong [2005] IRLR 258 guidance, and no evidence amounting to a non-discriminatory explanation is led, then it is likely that a tribunal will not find it difficult to infer discrimination, as occurred in the case of National Probation Service for England and Wales (Cumbria Area) v Kirkby [2006] IRLR 508 . However, in the present case, it is clear that evidence was led on behalf of the respondents in the course of which a non-discriminatory explanation for the less favourable treatment was advanced.[11]Finally, it should be remembered that for victimisation to be made out, the protected act does not require to be the only reason for the less favourable treatment; it is enough if it is shown that it had a 'significant influence on the outcome' ( Nagarajan v London Regional Transport [1999] IRLR 572 ). The Tribunal's Judgment[12]It is plain from the clear reasoning of the tribunal that they were satisfied that the sole reason why the respondents disciplined the claimant was Fiona Stringfellow's view that the claimant's response to the direct management instruction that she had been given was such as to undermine her authority. That was against a background of the idea of interviewing the respondent's employees including the claimant having emanated from their independent legal advisor, their solicitor Mr Kennedy. She thought she had issued a reasonably management instruction. Further, the decision to proceed to discipline the claimant had been taken after having consulted Mr Kennedy and on, it seemed, his advice. The tribunal majority unequivocally explain that the above was the conclusion which, on the evidence, they reached, in both paragraphs 33 and 38.[13]On the foregoing basis, the majority of the members of the tribunal did not see that there was any room for an inference of discriminatory victimisation to be drawn. We note that although the minority member dissented from the outcome of the case, he comes close to agreeing with the majority's analysis in attributing the decision to discipline the claimant to the fact that the Fiona Stringfellow and Mr Kennedy were under stress and irritated by the claimant's unhelpful actions. He accepts that would not be enough for the purposes of s.2(1) but goes on and attributes to them a motivation, established prior to the tribunal hearing and prior to the claimant giving any evidence that they were influenced by 'the fact that this unhelpful member of staff was to give unhelpful evidence at the … Tribunal.' There was, though, we note, no finding by the tribunal regarding the likely tenor of the claimant's evidence at all. In particular, there was no finding that the respondents were aware, in advance, of what the claimant was going to say in evidence and whether it would prove to be helpful or unhelpful to their case. The Claimant's Case on Appeal[14]Mr O' Carroll, for the claimant, made submissions in support of two separate grounds of appeal.[15]The first ground of appeal was to the effect that the tribunal's decision was a perverse one. They were bound to conclude that the decision to discipline was connected with the claimant's participation in the tribunal hearing as a witness. That was because the findings in fact demonstrated an unequivocal link between the claimant's attendance at and proposed attendance at the colleague's tribunal hearing as a witness, the requirement that she attend a meeting with Mr Kennedy and the disciplinary sanction. It was clear that it was proposed at an early stage that she would be a witness and it was clear that it was because of that that she was required to meet with Mr Kennedy.[16]Mr O'Carroll sought to approach his submissions on the basis that the tribunal had found that the claimant was disciplined because of her failure to attend the meeting with Mr Kennedy but it having been drawn to his attention that there was no finding to that effect, he confined his submissions thereafter to submitting that, on the evidence, the disciplinary sanction was imposed for that reason; the submission seemed to amount to an argument that the link was obvious and it was not open to the tribunal to sever it. Ultimately, he encapsulated the argument in a submission that whilst he accepted that the tribunal were entitled to come to the view that Fiona Stringfellow's feeling of being undermined was material to the decision to discipline, they were not entitled to fail to find that it was also because of her failure to attend the meeting with Mr Kennedy.[17]Mr O'Carroll's motion in respect of the first ground of appeal was that this tribunal should set aside the finding of the Employment Tribunal and remit the case to a freshly constituted tribunal for a rehearing.[18]The second ground of appeal was not contained in the original notice of appeal but was intimated as an application to amend the grounds one week prior to the hearing before us. Mr Kennedy very fairly indicated that he was prepared to deal with it, despite its lateness and despite the fact that it was plainly a fresh ground of appeal that had not been sifted, we acceded to Mr O'Carroll's motion that he be permitted to address us on it.[19]It was to the effect that the tribunal failed to consider whether the case involved a protected act under s.2(1)(c) of the 1976 Act. He sought to distinguish between the claimant's participation in the tribunal as a witness and her attendance at the meeting with Mr Kennedy; the former was covered by s.2(1)(b) and the latter by s.2(1)(c). He ultimately accepted that 'the matter of s.2(1)(c) was not put explicitly to the tribunal' but submitted that they should, nonetheless, have considered whether the claimant had done a protected act that fell within that subparagraph. If they had done, then, given the reason for disciplining the claimant was for not fulfilling a reasonable management instruction to attend the meeting with Mr Kennedy, the necessary link between the protected act and the less favourable treatment would have been bound to be held as established.[20]Mr O'Carroll's motion in respect of his second ground of appeal was that the case should be remitted back to the same tribunal to hear submissions on s.2(1)(c) but not to hear further evidence.[21]For completeness, we should add that although there was a review hearing on 28 October 2005 at which submissions were advanced on behalf of the claimant which were rejected, Mr O'Carroll did not, before us, seek to open the issues raised at the review hearing or to advance any appeal directed against the order that followed thereon, which was registered on 11 November 2005. The Respondent's Case[22]Regarding the first ground of appeal, Mr Kennedy submitted that the tribunal had not misdirected itself in law. It had, on the facts, decided that the respondents had taken action against the claimant not because she intended to do anything in relation to the colleague's tribunal claim but because she failed to carry out a reasonable management instruction. The onus of proof lay with the claimant, the tribunal had not reached a perverse decision, and the decision reached was one which was open to them on the facts. The outcome of the tribunal was a matter of indifference to the respondents and was a footnote to and exemplar of other concerns of a governance, regulatory and reputational nature. There had been no question of the respondents seeking to distort or suppress evidence, manipulate or oppress witnesses or 'win' at all costs.[23]Regarding the second ground of appeal, Mr Kennedy pointed out that nowhere in the claimant's originating application was a case under s.2(1)(c) advanced. Further, no such case had been advanced before the tribunal. No evidence was led in support of or in refutation of such a case. The tribunal had, however, considered the effect of the claimant's failure to attend the meeting with him. It was wholly artificial to seek to separate out the circumstances of the meeting in the way that the claimant sought to do. S.2(1)(c) was a 'catchall' provision and would not arise in a case where there was a protected act established as having been done under s.2(1)(b). Further, even if the claimant were to make out that she had carried out a protected act under s.2(1)(c) that would not, as a matter of logic, establish that she had received less favourable treatment because of it. She would be 'back at square one'. The mere fact of a protected act was not evidence of victimisation. Discussion[24]It was not suggested that the tribunal had failed to take account of the relevant law or misunderstood it. We agree, having read the carefully explained reasons in this case, that that was so. We are readily satisfied that they bore in mind the correct legal tests and the step by step analysis that the legislation and the authorities to which we have referred, required of them.[25]That being so, we ask ourselves whether, from a reading of their judgment, we are satisfied that the findings in fact that they made were ones which, on the evidence, they were entitled to make? It is not difficult to conclude that they were. Indeed, Mr O'Carroll did not suggest that they were not. Ultimately, he was driven to arguing that the problem was that there was another finding in fact which they should have made.[26]Before turning to that proposition, we consider it important to note that, at paragraph 38, the tribunal state: "…we do not consider that the claimant has established on a balance of probabilities that there is any other inference to be derived from the primary facts other than that the respondents acted unreasonably towards her in handing down a written warning and reducing her bonus. As we have already said, that conduct related solely, in our view, to the fact that Mrs Stringfellow felt undermined by the claimant's failure to do what she had been told …" (our emphasis) and that they did so against a background of recognising that there was a sharp issue between the parties as to the reason for the claimant being disciplined and after having found the respondents' witnesses credible and reliable. It was, of course, the respondents' evidence on the matter that was critical on the point since they could give direct evidence as to the reasons for their actions whereas the claimant's case was evidently confined to seeking to draw an inference from other evidence.[27]We have, accordingly, no difficulty in concluding that the finding that the sole reason for the claimant being disciplined was Mrs Stringfellow's feeling of being undermined when the claimant failed to follow a reasonable management instruction, was one which the tribunal were entitled to make. We also observe that it was not suggested on behalf of the claimant that it was a finding that we should interfere with.[28]Turning to Mr O'Carroll's submission that there should have been an additional finding, the effect of which would be to establish that the claimant was disciplined by reason of her having done a s.2(1)(b) protected act, we are wholly satisfied that we cannot accede to it. We can see that, in the circumstances advanced, it would have been open to the tribunal to make the finding that Mr O'Carroll argued for; they could, for instance, have rejected the respondents' witnesses wholly non discriminatory explanations as incredible or unreliable or both and drawn the inference that the claimant sought. They did not, however, do so. It was not that they were being perverse; they were simply exercising the very judgment that was their function.[29]We, accordingly, reject the first ground of appeal.[30]The second ground of appeal can be shortly dealt with. We have given careful consideration to the terms of the claimant's IT1 form. In the part of the explanation of the claim (which appears to have been drafted by a Unison representative) which sets out the legal basis founded on, it states:
"In giving evidence and/or preparing to give evidence in support of Ms Islam's grievance and/or tribunal case Ms Palmer performed a protected act within the meaning of the race relations act 1976. But for her role as witness in support of Ms Islam, Ms Palmer would not have been subjected to disciplinary action."
That, plainly, gives notice of a claim under reference to s.2(1)(b) of the 1976 Act but not of a claim under reference to s.2(1)(c). It is evident, from the beginning of the tribunal's judgment, that that is how they also interpreted it. Further, at paragraph 25, they record that Ms Fox, for the claimant, presented her case only under reference to s.2(1)(b).[31]In these circumstances, the tribunal did not err in law in failing to consider whether the actions of the respondents amounted to victimisation on any of the other grounds in s.2(1) of the 1976, which was the claimant's submission before us. Indeed, had they done so, we consider that parties may well have been able to level justified criticism at them for having done so in circumstances where neither the evidence nor the submissions had been directed to such a case.[32]In any event, we agree with Mr Kennedy that even if it had been established that the claimant had done a protected act covered by s.2(1)(c), that would not have a produced a different outcome. She would still have been left with the insurmountable hurdle that the tribunal were satisfied that there was one reason for the respondents acting as they did and one reason only and it was not anything to do with the claimant having carried out a protected act. Disposal[33]In all the foregoing circumstances, we shall pronounce an order dismissing the appeal.