UNISON v MR CARL JERVIS [2006] UKEAT 0134_06_2903

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2006] UKEAT 0134_06_2903Case No Appeal No. UKEAT/0134/06Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
UNISONAPPELLANTMR CARL JERVISRESPONDENT
Before
Mr Justice Bean Mr A Harris Mr B M WarmanDate 29 March 2006
[1]APPEARANCES For the Appellant MR A WHITE QC AND MS E MISRA (Of Counsel) Instructed by: Messrs Berrymans Lace Mawer Solicitors Salisbury House London Wall London EC2M 5QN For the Respondent MR CARL JERVIS (The Respondent in Person) SUMMARY 4 and 13 Sex Discrimination Race Discrimination Employee brought discrimination claims against employer – TU declined support – TU official gave evidence for respondents – ET rejected subsequent discrimination claims against TU based on refusal of support and the fact of official giving evidence but upheld claims based on providing witness statement to employer's solicitors – no evidence to show even prima facie that this was discriminatory – TU's appeal allowed and claims dismissed. THE HONOURABLE MR JUSTICE BEAN This an appeal by the Trade Union UNISON against a decision of an Employment Tribunal chaired by Mr Andrew Gumbiti-Zimuto, sitting at Watford on 17 November 2005, that they had discriminated on the grounds of both sex and race against Mr Jervis who is of Afro-Caribbean ethnic origin.[2]He began work as a mental health nurse in March 1972 originally at the Leavesden Hospital and became a member of what was then COHSE in April 1972. COHSE amalgamated with NALGO and NUPE in 1993 to form UNISON. In 1995, Mr Jervis was transferred to the Eric Shepherd Unit and worked night shifts. During 2001 and 2002, he raised an objection to the introduction of new shift working arrangements which culminated in grievance and disciplinary hearings. His UNISON regional officer was Lorraine Howlett, his branch secretary was Sandra Beeton. Ms Howlett was, of course, not employed by the NHS Trust but Mrs Beeton was.[3]In May 2002, Mr Jervis was signed off sick. On 4 September 2002, he submitted a letter of resignation which he later sought, unsuccessfully, to retract. His employment was terminated in early December 2002. Prior to that date he had taken advice from the Union. Ms Howlett wrote to him on 29 October 2002 saying that:
"If you do feel that you were placed under undue pressure within that meeting (on 4 September with management) and that you had no alternative other than to resign, you could bring a claim under the Employment Tribunal proceedings (seek) for unfair dismissal/constructive dismissal… However I do have to inform you that, having discussed your case thoroughly with Sandra Beeton, UNISON could not support any claim that you were to bring with regard to those issues. As already stated, you do however have the right to do so without UNISON support, and I have advised you of the appropriate procedure to follow."
[4]On 9 December 2002, Mr Jervis began Employment Tribunal proceedings against the Trust complaining of unfair constructive dismissal. He was not supported by the Union but was represented by a solicitor at his own expense.[5]On 17 April 2003, the complaint was amended to include a claim for race discrimination and at the first day of the subsequent hearing it was re-amended to include a claim for sex discrimination.[6]On 23 July 2003, Mr Jervis wrote to UNISON asking them to pay the legal costs of his claim against the Trust. By letter of 13 August they refused. During August 2003, Ms Howlett was asked by the Trust's solicitors to provide a witness statement. They had discussions with her and drew up a draft statement which she declined to sign. On 28 August, the Employment Tribunal at the request of the Trust's solicitors issued a witness order requiring Ms Howlett to attend to give evidence and likewise made a similar order in relation to Mrs Beeton.[7]The hearing took place beginning on 14 October 2003. Mr Jervis gave evidence on his own behalf. The Trust called among others, Mrs Beeton and Ms Howlett to give evidence. The hearing occupied nine sitting days. The Applicant and the Trust, the Hertfordshire Partnership NHS Trust, were each represented by counsel; the Tribunal was chaired by Mr Mahoney.[8]By its reserved decision promulgated on 30 December 2003, the Tribunal upheld Mr Jervis' complaints of unfair dismissal though with a finding of 40 per cent contributory fault, and of sex discrimination. The complaint of race discrimination was dismissed. We do not have the remedies decision but Mr Jervis has told us that he was subsequently awarded, in round figures, some £3,000 for unfair dismissal and some £57,000 for sex discrimination, a total of approximately £60,000.[9]He had, however, incurred substantial legal costs in establishing that case and wrote to UNISON on 11 February 2004 and again on 9 September 2004, complaining of its refusal to pay his costs. On 11 January 2005, he began proceedings in the Tribunal against UNISON alleging sex and race discrimination. In Box 11 of the Originating Application he gave details of his complaint as follows:
"When my former employer Hertfordshire Partnership NHS Trust tried to change our shift pattern I was treated less favourably by UNISON compared to the way UNISON treated my colleagues who are female and white. I consider that I have been treated very badly by UNISON and request that the Tribunal agrees with me that I was sexually and racially discriminated against."
[10]As Mr Antony White, QC who has appeared before us for UNISON has pointed out, those brief grounds appear to relate entirely to alleged less favourable treatment while Mr Jervis was employed by the Trust rather than subsequently to the termination of his employment. It alleged in other words a failure of representation in dealings with the former employer rather than of representation before the Tribunal.[11]On 15 February 2005, UNISON responded to the claim; denying discrimination and also taking the point that the claims were out of time. The issue of whether the claims were out of time came before Mr Gumbiti-Zimuto, sitting alone, on 2 June 2005. The learned Chairman ruled that Mr Jervis' complaints relating to events prior to the termination of employment in December 2002 were out of time. He refused to exercise his discretion under the "just and equitable" sections of the discrimination statutes to extend time.[12]However, the Originating Application was not, by this time, the sole basis of the complaint. The Chairman's judgment at paragraph 5 says this:
"The second category of complaints which the claimant makes is that the Union failed to support him during the period when he brought his claim to the Employment Tribunal. He says that he requested assistance with his legal costs in about July 2003 and sometime thereafter the Union refused. The Claimant stated that after he received the liability decision in his favour, that he revised his complaint and subsequently that decision to refuse him legal assistance was either re-affirmed or another decision to the same effect was made."
[13]As to the complaint of lack of support from UNISON in relation to the Employment Tribunal claim made by Mr Jervis against the NHS Trust the Chairman held, as was plainly the case, that those complaints too were out of time but held that it was just and equitable for time to be extended so that the Tribunal could consider them. He directed Mr Jervis to provide an Amended Originating Application particularising his complaints that UNISON failed to provide him with support in his proceedings against the Trust.[14]Mr Jervis provided an Amended Originating Application on 6 June 2005. It is a handwritten document running to 25 paragraphs. Most of them, unfortunately, related to Mr Jervis' treatment prior to December 2002 which the Chairman had ruled was out of time. However, paragraph 21 begins:
"At the full merits hearing in October/November 03…Sandra Beeton (UNISON Branch Secretary) and Lorraine Howlett (UNISON Regional Officer) gave evidence on behalf of my ex employer, Hertfordshire Partnership NHS Trust."
[15]At paragraph 25 the document says:
"UNISON have breached their own policy regarding the aims and objects of the Union. See extract from UNISON Rules Booklet (Aims and Objects of the Union)."
[16]The relevant part of the Union Rule Book is in our papers. The arguably relevant sections of the Aims and Objects of the Union as set out in the rule book are:
"B1.2 to seek to ensure equality of treatment and fair presentation for all members and to work for the elimination of discrimination on grounds of race, gender, sexuality, disability, age or creed. B1.3 to seek to protect the rights of all members to be treated with dignity and respect irrespective of race, gender, sexuality, disability, age or creed. B3.1 to provide minimum guaranteed standards of advice, representation and service (to members)."
[17]Mr Jervis' Amended Originating Application was met with amended grounds of resistance which began by noting, we believe correctly, that the Chairman's order of 2 June 2005 had limited the issues for determination by the Tribunal at the forthcoming substantive hearing to the following:
"Did the Respondent treat the Claimant less favourably on the grounds of race and/or sex contrary to section 11 of the Race Relations Act 1976 or section 12 of the Sex Discrimination Act 1975 by failing to support him (financially or otherwise) in his litigation against his former employer the Hertfordshire Partnership NHS Trust from the date that he brought proceedings to the time they concluded in or around June 2004?"
[18]When Mr Jervis, who was then and is now appearing in person, served his witness statement in the Tribunal proceedings against UNISON, he did so by adapting the document originally filed as an Amended Originating Application, giving it a new heading suitable to a statement rather than a pleading; then setting out the 25 previous paragraphs with some helpful page references; and adding at the end, after the allegation that UNISON had breached their policy regarding the aims and objects of the Union, some references to letters and file notes which were said to support the case.[19]Ms Howlett provided two witness statements to be adduced on behalf of UNISON in the proceedings: the first a very short narrative dated 28 July 2005, the second and rather longer one dated 10 August 2005. Mr Jervis also submitted a supplemental witness statement in response to Ms Howlett's first statement complaining that he did not receive any support from Ms Beeton, nor from Ms Howlett. He complained that when he asked Ms Howlett what he could do, she said that Mr Trewin (that is the relevant line manager) did everything right and that he must try not to get up management's nose. He made a complaint that she had not informed the Trust that his previous shift pattern was a term of his contract of employment and that the attempted variation of that term was potentially a fundamental breach. He complained further that she had not advised him to raise a grievance against his employer. All these were complaints of pre-termination matters which had been ruled out of time. At the end of the witness statement he said:
"Lorraine Howlett never advised me regarding my legal rights."
[20]The hearing before the Employment Tribunal took place on 10 and 11 October 2005. We have been provided without objection with an attendance note compiled by Ms Shabana Mahmood, solicitor of Berrymans Lace & Mawer who were acting for UNISON which records in considerable detail her note of what was said and done. It has therefore been unnecessary to trouble the learned Chairman. (There is also a manuscript note by Ms Misra, of counsel, who represented the Union. Naturally, since Ms Misra was on her feet for part of the time, this is less full and it is no disrespect to her to say that we have not been referred to it.)[21]Ms Mahmood's note shows that at the very outset of the hearing, Ms Misra raised her concern that the large volume of documentation before the Tribunal included what she described as a lot of irrelevant material. The vast majority of the documents, she said, related to matters which were no longer live issues before the Tribunal following the Chairman's interlocutory decision to refuse to extend time in respect of the December 2002 issues.[22]The hearing proceeded. Mr Jervis read out his witness statement and was then asked questions in the nature of evidence in chief by the Chairman. In Ms Mahmood's note at paragraphs 12 to 16, we find these questions by the Chairman and answers by Mr Jervis."12. What other support did you ask UNISON for other than legal costs? A. Support all the way. I was entitled to support all the way. UNISON are there to provide support for members.13. What is it you expected? A. They could have stressed the points in my favour. They were able to carry on and represent me at the employment tribunal hearing. They did not support my case and so I had to get solicitors of my own. UNISON should have been the ones supporting me.14. Once you decided to start the case, how do you say there was a lack of support from the Union? A. I thought they could have pressed my employer and maybe try to get me some more family support my wife is also an employee and a member of UNISON.15. Did you receive help in the conduct of your case? Such as someone to talk to? A. No they didn't help me conduct the case. I had to instruct my own solicitor because they would not support me and give me legal representation.16. Did you ask? A. No they knew all about it. They never even advised me, you know, that I could raise a grievance."[23]After cross-examination by Ms Misra and a few final questions from the Tribunal, the Claimant's case concluded and Ms Howlett then gave evidence. She was cross-examined first by Mr Jervis and at paragraph 23 of this section of the Notes the following exchanges occurred (the passage in square brackets is Ms Mahmood's):
"23. Why did you and Sandra Beeton give evidence at my tribunal hearing? A. I was witness ordered and wasn't given a choice, once you have a witness order you have to attend, and the same is true for Sandra Beeton. Chairman reference to bundle and letters from Gemma Webb. Chairman: Why were you in communication with the Trust? A. Well, in one sense I am always in communication with the Trust because I sit on a group which reviews their policies. So we are always reviewing their internal policies to make sure that they are not breaching employment regulations. Oh sorry, I misunderstood -in relation to this case and Mr Jervis, I was not in communication with the Trust. They approached me to give evidence and I refused and said I would not give evidence without a witness order. Chairman Basically you went behind your member's back. I mean that would obviously make him feel bad wouldn't it? You simply went behind your member's back and helped out his former employer? [What is that being based on? Raise with EM -inappropriate tone and questioning of Lorraine -not raised by Mr Jervis]. A. I did not go behind Carl's back. At page 338 I had said that I was not appearing as a witness without an order I was not doing it voluntarily. I wasn't volunteering my information or my views or my assessment of the case and what I believe was right or wrong I said that I would not do it without a witness order. Chairman How often have you appeared for a respondent against one of your members? A. Me personally, this is the only time that I can recall."
[24]In closing submissions both orally and in writing, Ms Misra sought to emphasize that Mr Jervis should be limited to the case which he had put. "Counsel: If the Tribunal finds that he was not supported, that is in and of itself, not enough. You must find that he was not supported on the grounds of his race or his sex. This is not a claim that the Applicant has seriously put forward over the course of the hearing. Chairman: Yes, but in terms of Lorraine Howlett and Sandra Beeton, I mean, they gave evidence in the Employment Tribunal proceedings. Counsel: Yes, they did. They were witness ordered. Chairman: Yes, but it seems as if Lorraine Howlett has tried to cover her back. To say that she only attended because of the witness order flies in the face of the documents. She spoke to Jerry Butler. It seems to me that she was in discussions with them from the outset and was helping them and asked for a witness order to cover her back. Counsel: Lorraine Howlett's evidence on this point was clear in that she said that she was not going to give evidence unless a witness order was obtained. Chairman: Yes. So she was basically covering her back. Counsel: No, in my submission that is not correct and the Tribunal has no basis on which to say that. I would remind the Tribunal that the Applicant has not challenged that aspect on the grounds of race or sex. It is remarkable that he simply has not put forward a positive allegation of race or sex discrimination. Chairman: Well, the critical point is what leads up to the evidence. It seems to me an important feature there was never any attempt to contact Mr Jervis regarding his perception of the degree of co-operation between Lorraine Howlett and the Trust. It seems that there was a degree of co-operation beyond simply turning up and giving evidence." There were further exchanges in the same vein.[25]In its reserved decision which followed a discussion in Chambers on 25 October, the Tribunal found in Mr Jervis' favour on both sex and race discrimination. In paragraph 4 they said:
"The issues that the Tribunal has had to consider are whether the Respondent discriminated against the Claimant on the grounds of sex or race by failing to provide him with representational assistance in the bringing of his claim made against the Trust; whether the Respondent discriminated against the Claimant on the grounds of his race or sex when it declined to pay the Claimant's legal expenses; and whether the Respondent discriminated against the Claimant in that they were in breach of its (sic) own policy regarding the aims and objects of the Union in that they failed "to provide minimum guaranteed standards of advice, representation and service" to the Claimant."
[26]In their findings of fact they rejected, as they were entitled to do, the evidence of Ms Howlett that she was not willing to support the Trust against the Claimant or willing to give evidence for the Trust. They noted that this was the only occasion of which Ms Howlett could give evidence where a regional officer had given evidence for the employer against the Union member in a Tribunal.[27]After referring to the Race Relations Act and Sex Discrimination Act and the decision of the Court of Appeal in Igen v Wong [2005] ICR 931 they confirmed in paragraph 7:
"In this case there was no actual like for like comparator, it was necessary therefore for the Tribunal to construct a hypothetical comparator. In this case the key characteristics of our hypothetical comparator is that they are a person of a different race and sex to the claimant who has tendered their resignation, sought to withdraw it and then sought support of the union representatives as the claimant did."
[28]They then went on to deal with the issues one by one. Firstly in paragraph 8 they said:
"When considering the question whether by failing to provide the Claimant with representation or assistance in the bringing of his claim made against the Trust, the Respondent acted unlawfully the Tribunal is satisfied that the Respondent did not. When looking at the decision not to assist the Claimant the Tribunal consider that the actions of Lorraine Howlett, would have been the same to any type of hypothetical comparator. Lorraine Howlett's actions were due to her view that the Claimant's case had no merit. There is nothing to suggest that the view she took of the merits was tainted by considerations of the Claimant's sex or race. In this part of the Claimant's case the Tribunal consider that the Claimant has failed to prove such facts so as to require the Respondent to provide an explanation for their actions."
[29]They went on to find:
"In relation to the issue whether the Respondent discriminated against the Claimant on the grounds of his race or sex when it declined to pay the Claimant's legal expenses we are satisfied that it did not."
[30]In paragraph 11 they went on to the third and final head of claim, which was a complaint that:
"…Lorraine Howlett and Sandra Beeton did not support the Claimant's case against the Trust but instead assisted the Trust and gave evidence for the Trust at the hearing."
[31]They said:
"The Tribunal has firstly considered whether the Claimant's complaint is within the scope of sections 12 of the 1975 Act and 11 of the 1976 Act. The Tribunal consider that any complaint about Lorraine Howlett and Sandra Beeton giving evidence for the Trust is outside the scope of sections 12 and 11 of the 1975 and 1976 Acts respectively. The union officials both gave evidence pursuant to a witness order and the Tribunal do not consider that giving evidence to an Employment Tribunal pursuant to a witness order is capable of being an act of discrimination within section 12(3) or section 11(3) of the 1975 and 1976 Acts respectively."
[32]At paragraph 12 they said:
"In the case of Lorraine Howlett it is clear that her conduct went beyond merely giving evidence but also amounted to supporting the Trust in the preparation of their case against the Claimant. We have considered the Union's aims and objects that contain a provision that the Claimant is entitled to "minimum guaranteed standards of advice, representation and service.""
[33]After setting out section 12(3) of the Sex Discrimination Act and section 11 of the Race Relations Act, the Tribunal continued:
"15. The Tribunal is satisfied that by giving support to the Trust in the preparation of their case the Claimant has been subject to a detriment. Lorraine Howlett gave information which supported the Respondent's case and assisted them in the preparation of their case against him. Lorraine Howlett's only involvement in the case comes from her representation of the Claimant. In not informing the Claimant of her involvement in the case Lorraine Howlett was in our view failing "to provide minimum guaranteed standards of advice, representation and service."
A union member in circumstances such as the Claimant in this case can expect that his union representative will not assist his employer in the preparation of a case against him even when the union is not supporting his case. To do so is our view a breach capable to amounting to a detriment within the sections 12 and 11 of the 1975 and 1976 Acts respectively. 16. It is not the fact of giving evidence, which was done subject to a witness order, it was the provision of assistance to the Trust and the failure to inform the Claimant of her actions that the Tribunal consider to be the discriminatory act in this case. 17. The Tribunal has gone on to consider whether the Claimant has proved facts from which conclusion could be drawn that the Respondent has treated the Claimant less favourably on the ground of sex or race. We take into account the fact that Lorraine Howlett in her evidence stated that she was not aware of any other case like this, where a union official has given evidence against the a union member that they had represented. We have also considered the fact that we expressly reject the suggestion made by Lorraine Howlett that she did not support the Trusts case against the Claimant. We have also considered that when measured against a hypothetical comparator the actions of Lorraine Howlett would have been to comply with the aims and objects of the union and provide a minimum guaranteed standard of advice, representation and service. The Tribunal is satisfied that having regard to the provisions of both section 63A of the Sex Discrimination act 1976 and section 54A of the Relations Act 1976 the Claimant has proved facts from which conclusions could be drawn that the Respondent has treated the Claimant less favourably on the grounds of sex and or race."[34]Mr White's first ground of appeal is that the Tribunal found against his clients on a ground which had not been put forward by Mr Jervis. The allegations which Mr Jervis had made, of failure to support his Tribunal proceedings by the provision of presentation or assistance, and the subsequent failure to pay the legal fees which he had occurred, were rejected as allegations of discrimination by the Tribunal. In contrast, those negative allegations having been rejected, the Tribunal found UNISON liable on the grounds that Ms Howlett had inappropriately provided assistance to the Trust, (other than by the giving of evidence itself, which the Tribunal rightly found not to be capable of being a detriment), and had compounded that inappropriate behaviour by the failure to inform the Claimant of her actions. Those positive allegations, Mr White complains, were introduced into the proceedings by the Chairman and formed no part of Mr Jervis' pleaded case.[35]In the well-known decision of Chapman v Simon [1994] IRLR 124 Balcombe LJ, Gibson LJ and Stuart-Smith LJ held that an employment tribunal had erred in law in making a finding of race discrimination where the matters on which the finding was based had not been the subject of complaint in the Originating Application. Gibson LJ said at paragraph 42:
"If the act of which complaint is made is found not to be proven, it is not for the Tribunal to find another act of race discrimination of which complaint has not been made to give a remedy in respect of that other act."
[36]In another case this time in this Tribunal, British Gas Services Ltd v McCaull [2001] IRLR 60 , Keene J, as he then was, giving the judgment of this Tribunal, said:
"If a Tribunal finds less favourable treatment in some act or omission of which the Applicant has not complained there is a grave danger that there will have been a breach of the rules of natural justice because the other party will not have been put on notice that this might be held against it."
[37]We respectfully agree with that and would add that we accept Mr White's submissions that that danger is accentuated since the new provisions relating to the burden of proof; the decision of this Tribunal in Barton v Investec Henderson Crosthwaite Securities [2003] ICR 1205 , and, particularly, the decision of the Court of Appeal in Igen Ltd v Wong . If a Tribunal makes a finding on the basis of facts which were not complained of in the originating application and where the party against whom the finding is made had had no proper opportunity to respond to the allegations; then uses that finding to find (under the first step in Igen v Wong ) that a prima facie case has been made out; and then goes on, as this Tribunal did, to find that the Respondents have not advanced adequate evidence to displace the burden of proof, the potential failure of due process is particularly serious.[38]The Tribunal regarded it as a matter to be held against UNISON that Ms Howlett had not dealt with this issue in her witness statement. In paragraph 18 of their decision they say:
"In her witness statement, Lorraine Howlett gives no explanation for her actions."
She was entitled not to do so because the allegation had not at that stage been made.[39]Mr White's second point is that the Tribunal drew an unsustainable distinction between the giving of evidence and steps preparatory to the giving of evidence. As a criticism of paragraphs 15 and 16 of the Tribunal's decision we think that this short submission is well founded. But it does not stop there. Mr White's first two points can properly be combined in this way. The Tribunal found that in not informing the Claimant of her willingness to testify on behalf of the Trust and the provision of assistance to the Trust preparatory to the actual giving of evidence, Ms Howlett had committed a discriminatory act. But that as we see it could only be the case if Ms Howlett would have behaved differently had Mr Jervis been white or female or both. There is in our view nothing in the material before the Tribunal which would even amount to a prima facie case that Ms Howlett would have behaved differently in this respect had the relevant Union member been white or female or both and the Tribunal make no such finding. In the absence of such a finding we regret to say that we simply do not see on what basis it could have been found that these actions by Ms Howlett constituted prima facie evidence of race or sex discrimination.[40]The Tribunal in this case, so far from making such a finding, had been emphatic in paragraph 8 that:
"(a) failing to provide the Claimant with representation or assistance in the bringing of his claim, the Union through Ms Howlett would have acted the same towards any type of hypothetical comparator; (b) that Lorraine Howlett's actions were due to her view that the Claimant's case had no merit.; and (c) that there is nothing to suggest that the view she took of the merits was tainted by considerations of the Claimant's sex or race."
[41]Having made those findings it would have been quite extraordinary for the Tribunal to have gone on to find, that had Mr Jervis been white or female or both, Ms Howlett would have refrained from providing assistance to the Trust before the Tribunal hearing, or would have kept the Claimant informed of her communications with the Trust. In fact they did not do so.[42]These conclusions make it unnecessary for us to consider Mr White's final point which is that in any event Ms Howlett was not personally a party to the proceedings and that UNISON could only be found liable for discrimination by her, whether under section 41 of the Sex Discrimination Act or section 32 of the Race Relations Act if the requirements of subsection (2) of each of those sections was satisfied and that in this case they were not. That raises an interesting point about the scope of the authority conferred by the Union on a full-time official. We will not venture to deal with it in this case.[43]Mr Jervis told us at the outset of his brief and helpful submissions that he had experienced a great deal of stress and depression as a result of the way he has been treated and that that stress and depression have continued. We sympathize with that and, we sympathize with the fact that he has had to cope with this case, including the appeal to us, without assistance. Nevertheless, it seems to us that the law is very clear and that the Tribunal's decision in his favour cannot be sustained.[44]We therefore allow the appeal, set aside the decision of the Employment Tribunal and dismiss the Originating Application.