WANDSWORTH NHS PRIMARY CARE TRUST v MS A K OBONYO [2006] UKEAT 0237_05_1407

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2006] UKEAT 0237_05_1407Case No Appeal No. UKEAT/0237/05Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
WANDSWORTH NHS PRIMARY CARE TRUSTAPPELLANTMS A K OBONYORESPONDENT
Before
His Honour Judge Peter Clark Dr S R Corby Mrs R A VickersDate 14 July 2006
[1]APPEARANCES For the Appellant MISS MONICA CARSS-FRISK QC Instructed by: Messrs Bevan Brittan LLP Solicitors Fleet Place House 2 Fleet Place Holborn Viaduct London EC4M 7RF For the Respondent MS YETUNDE RUBAN (Of Counsel) Free Representation Unit 6th Floor 289-293 High Holborn London WC1V 7HZ SUMMARY ET upheld Claimant's complaints of direct race discrimination; victimisation; harassment and constructive unfair dismissal. Following Burns/Barke reference back and ET Response the findings of direct discrimination and victimisation were set aside and the remaining findings upheld. HIS HONOUR JUDGE PETER CLARK This Final Judgment should be read in conjunction with our Interim Judgment delivered on 8 February 2006. The parties before the London (South) Employment Tribunal were Mrs Obonyo, Claimant and Wandsworth NHS Primary Care Trust, Respondent. We shall so describe them. This appeal is brought by the Respondent against the Judgment of an Employment Tribunal chaired by Mrs Gleeson and promulgated with Reasons on 23 February 2005, upholding the Claimant's complaints of direct race discrimination, victimisation, racial harassment and constructive unfair dismissal. The first hearing before us resulted in certain questions being referred back to the Employment Tribunal under the Burns/Barke procedure. The Employment Tribunal Chairman responded to those questions on 22 February 2006 (the Response). A further hearing was convened before us on 11 May 2006 in the light of that response. These are our conclusions on the appeal. Background[2]The Claimant is black and of Ugandan origin. She was born in Uganda on 2 April 1942. She trained and practised as a Health Worker in Uganda, moving to the UK in August 1988. She was employed as a 'G' grade health visitor by the Croydon NHS Trust from January 1990 until her resignation to take up employment with the Respondent in the same capacity on 24 February 2003. She was assigned to work as part of a team operating from the Brocklebank Health Centre. She was the only black member of that team, which was managed by Ms Fran Brewster. Her local induction was overseen by a younger, white 'G' grade Health Visitor, Ms Louise Campbell.[3]The Employment Tribunal's detailed findings of fact reveal that difficulties arose between the Claimant and other members of staff almost immediately after her joining the team. In May 2003 an issue arose over her NMC Registration; on 30 June 2003 she made a formal complaint of racial harassment by team members and Ms Brewster. When the members of her team received letters outlining her allegations against them on 28 August they sent her to Coventry.[4]The Claimant was suspended on 5 September. On 3 December she presented her first Originating Application to the Employment Tribunal, complaining of race discrimination, harassment and victimisation. She resigned from the Respondent's employment on 26 March 2004 and on 22 June she presented a second Originating application complaining of race discrimination, constructive dismissal, victimisation and 2 further complaints with which we are not concerned. The Employment Tribunal Judgment[5]The paragraph numbering in the Employment Tribunal's Reasons has gone awry. On Page 17 of the internal pagination paragraph 69 then moves back to paragraph 51 and following. We shall refer, where necessary, to both the Employment Tribunal paragraph number and the internal pagination.[6]In our Interim Judgment we acknowledged the force of Miss Carrs-Frisk's submissions as to the adequacy of the Employment Tribunal's reasoning in relation to all 3 complaints brought under the Race Relation Act 1976 (RRA). Hence the Burns/Barke questions put to the Employment Tribunal. In finally considering this appeal we have taken into account the Employment Tribunal Response in conjunction with their original Reasons. The Appeal[7]It is convenient to deal with the case by reference to each of the 4 complaints upheld by the Employment Tribunal. Direct Race Discrimination[8]The reversal of the Burden of Proof under Section 54A RRA does not alter the requirement for Employment Tribunals, at the first stage of the test propounded by the Court of Appeal in Igen v Wong [2005] ICR 931 , to carry out a comparative exercise; has the Claimant proved on the balance of probabilities facts from which it could conclude, on the assumption that the Respondent has no adequate explanation, that the employer has committed an act of discrimination? In the case of direct discrimination the Claimant must show that she has been treated less favourably than a relevant comparator on the grounds of her race.[9]The relevant comparator(s) may be actual or hypothetical. An hypothetical comparator may be constructed drawing on the employer's treatment of an actual person who does not strictly fall within the definition of a relevant comparator under Section 3(4) RRA.[10]In the present case, the Employment Tribunal record, at paragraph 69 (p 16) of their Reasons that Ms Ruban, appearing on behalf of the Claimant below as she does before us, relied upon a hypothetical white comparator. In their core reasoning, paragraghs 66 – 67 (p 23) the Employment Tribunal do not in terms identify the relevant comparator(s), nor, on the face of the reasons, do they appear to carry out the necessary comparative exercise. Hence we asked the Employment Tribunal, on reference back, what, if any, actual or hypothetical comparator(s) were used by the Tribunal in considering the claim of direct discrimination? Their response was(i) a hypothetical white person and(ii) Ms Louise Campbell.[11]The first difficulty with that response is that Ms Campbell was not put forward by the Claimant as a relevant actual comparator. Applying the principle in Chapman v Simon , referred to at paragraph 3(3) of our Interim Judgment, it was not open to the Employment Tribunal, in our view, to determine this part of the case on a basis not advanced by the Claimant.[12]We accept, as Ms Ruban submits, that it was open to the Employment Tribunal to rely upon a hypothetical white person as a relevant comparator and it is not necessarily an error of law for the Employment Tribunal not to identify the hypothetical comparator in order to address the issue of less favourable treatment. The Law Society v Bahl [2003] IRLR 540, (EAT) paragraph 126, per Elias J, applying the approach of the House of Lords in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 .[13]However, our second question to the Employment Tribunal under the head of direct race discrimination was to enquire in what respects did the Tribunal find at Stage 1 of the Igen enquiry, that the Claimant was treated less favourably than such comparator(s)? The Employment Tribunal response, in relation to a hypothetical white comparator, was as follows:
"There would have been no previous race complaint to taint the investigation of her complaint of exclusion (passim)"
[14]We have endeavoured, with the assistance of both counsel, to unravel that somewhat delphic reply. What is absolutely clear to us is that, given a further opportunity to explain their reasoning as to the finding of less favourable treatment of the Claimant when compared with a hypothetical white comparator, the Employment Tribunal has chosen to focus on the fact that such hypothetical comparator would not have made a previous race complaint. In our judgment Miss Carrs-Frisk is correct in submitting that this response demonstrates a confusion in the Employment Tribunal's mind between direct race discrimination and victimisation. The fact that an hypothetical comparator had not made a previous race complaint (and, on the facts of this case, the Employment Tribunal may be referring here either to the Claimant's complaint to the Respondent on 30 June, or to her complaint of race discrimination made to her previous employer, Croydon PCT, as to which we shall return under the heading of victimisation below) will be a relevant distinction between the complainant and her comparator for the purposes of a victimisation complaint (one has done a 'protected act', the other has not) it is not relevant to the issue of less favourable treatment on grounds of race in a direct discrimination complaint.[15]For these reasons we have concluded that the Employment Tribunal has misdirected itself as to the test for direct race discrimination and hence this part of their Judgment cannot stand and must be set aside. Victimisation[16]Section 2 RRA requires a comparison between the complainant, being a person who has done a protected act and a comparator who has not done the protected act. There must be less favourable treatment of the former than the latter by reason of the former having done the protected act.[17]It follows that a central question is whether the complainant has done a protected act. In this case the sole pleaded protected act relied on by the Claimant (set out in her Further and Better Particulars dated 22 March 2004) was her complaint of race discrimination and harassment made to the Respondent's Miss Fryer on 30 June 2003.[18]During the course of the Employment Tribunal hearing the Respondent sought to introduce a note of a telephone conversation which took place on 9 October 2003 between Ms Miller, the Respondent's Human Resources Adviser and Ms Kate Ford, a Human Resources Officer with Croydon PCT. That led to a finding by the Employment Tribunal (Reasons paragraph 6) that there had been a substantial and deliberate failure on the part of the Respondent, on the advice of junior counsel then representing the Respondent (Miss Carrs-Frisk QC did not appear below) to disclose relevant documents. Based on the oral and documentary evidence before them the Employment Tribunal found (Reasons paragraphs 54 -58; Pp 15 – 16) that prior to the telephone conversation on 9 October 2003 Ms Fryer was aware that the Claimant had complained of racial discrimination when employed by Croydon PCT.[19]It is clear from Section 2(1)(c) RRA that a complaint of race discrimination against a previous employer ("any other person") is capable of amounting to a protected act for the purposes of a complaint of victimisation against a subsequent employer. However, it is also clear that no application was made on behalf of the Claimant to amend these proceedings to add as a second protected act, the Croydon race complaint. (See again, Chapman v Simon ). We have carefully considered that passage in Ms Ruban's lengthy written closing submissions below (paragraphs 102 – 106) where a somewhat equivocal position is taken. At paragraph 103 she submitted:
"Although the claimant had not identified that act (the Croydon race complaint) as a protected act, it is the case that Section 2 covers the situation where the victimiser subjects the person to less favourable treatment by reason that the discriminator, knows or suspects that the person victimised has done or intends to do any of the acts at paragraphs (1)(a) – (d) of Section 2 of the Act. The question for the tribunal therefore is was the claimant subjected to less favourable treatment because the respondent knew or suspected that she had made a complaint of racial discrimination against her line manager when she left Croydon." and at paragraph 106 Counsel posed and answered this question: "
Were these less favourable treatment by reason of the protected act of 30 June 2004 (sic) and or the 'suspected' complaint in Croydon. The answer is yes." She continued:
"Who is the comparator, the comparator should be a person who had not done a protected act – Chief Constable of West Yorkshire Police v Khan [2001] UKHL 48 at paragraph 27 …"
[20]Dealing first with the protected act issue, we accept Miss Carrs-Frisk's submission that the Employment Tribunal have fallen into error in basing their finding of unlawful victimisation in part on the unpleaded protected act, namely the Croydon race complaint. Either it was incumbent on the Claimant, through her Counsel, to make a formal application to the Employment Tribunal for permission to amend her Further and Better Particulars to add a second protected act, so that the Respondent knew fully the case it had to meet; or it may have been open to the Claimant to contend that the emerging knowledge of the Respondent of the Croydon complaint contributed to less favourable treatment of the Claimant by reason of the pleaded protected act, the Claimant's harassment complaint of 30 June 2003. What is not permissible, in our judgment, is for the Employment Tribunal to proceed on the basis of both protected acts. That is what they say they did in their Response.[21]However, that is not the end of the appeal against the Employment Tribunal's finding of unlawful victimisation.

(s) By their Response they identified 3 comparators:

"(i) a person who had not made a race complaint in her previous employment (ii) Ms Louise Campbell (in relation to difficulties with other member (sic) of staff in the same grade); and (iii) a hypothetical white person."
[22]Again, we regret to say that the Employment Tribunal's Response demonstrates a flawed approach to the comparator question in relation to the victimisation claim. Taking each of the 3 comparators identified by the Employment Tribunal in turn. First, the comparator who had not made a race complaint in her previous employment is a reference to the unpleaded protected act, namely the Croydon race complaint. That is not a valid comparator on the case as it stood.[23]Secondly, Ms Louise Campbell. She is an actual, as opposed to a hypothetical comparator but not one relied on by the Claimant in the victimisation claim any more than in the direct discrimination claim. Thirdly, a hypothetical white person. This third comparator neatly illustrates, in our judgment, the Employment Tribunal's failure to clearly distinguish between the necessary ingredients of direct discrimination and victimisation. Victimisation is not concerned with less favourable treatment on racial grounds, where the comparator will be of a different race or colour; the comparison is between the complainant who has done a protected act and a comparator who has not. Race is immaterial.[24]For these reasons we are again persuaded by Miss Carrs-Frisk that the Employment Tribunal's finding of unlawful victimisation on the part of the Respondent is flawed in law and cannot stand. Racial Harassment[25]In this appeal 2 issues have been raised as to the proper approach to the new tort of harassment now contained in Section 3A RRA, as inserted by regulation 5 of the Race Relations Act 1976 (Amendment) Regulations 2003. Regulation 5 came into force on 19 July 2003.[26]The first issue we considered and ruled on in our Interim Judgment (Transcript. P3A-G). We then held that Section 3A did not require the comparative exercise to be found in the case of direct discrimination or victimisation.[27]The second issue arose for the first time in Miss Carrs-Frisk's second skeleton argument dated 27 April 2006, dealing with the Employment Tribunal's Response. It is not raised in the Notice of Appeal settled by junior Counsel who appeared below.[28]We must always be conscious of the principle that new points ought not to be permitted on appeal save in exceptional circumstances. The point which Miss Carrs-Frisk seeks to raise is that it is not open to the Claimant to rely on events occurring prior to 19 July 2003, the commencement date for Section 3A RRA, as part of a complaint of racial harassment.[29]We propose to deal with the point on two levels. First, having read the written closing submissions of Counsel then appearing for the Respondent below, we are unable to discern any argument drawing the distinction which Miss Carrs-Frisk now seeks to draw between pre and post-19 July 2003 alleged acts of harassment. In these circumstances we are not provisionally persuaded that the point is properly made for the first time on appeal. However, we did not understand Ms Ruban to object to the point being taken on the ground that it is a new point. Secondly, we have some sympathy for Miss Carrs-Frisk's position given that, in their original Reasons, the Employment Tribunal gave no reasoning to explain their conclusion that the complaint of harassment under Section 3A had been made out. In these circumstances we have considered the point on its merits.[30]At the hearing before us on 11 May we were referred to an extract from the 4 th Edition of Bennion on Statutory Interpretation (2002). That extract appeared to us to be incomplete and we are grateful to Miss Carrs-Frisk for supplying a fuller extract following the hearing.[31]We readily acknowledge the general presumption against retrospectivity in new legislation. However, we have looked closely at the nature of the new statutory tort of harassment contained in Section 3A. It clearly contemplates a course of conduct occurring over a period of time. On the findings of this Employment Tribunal, expressed in their Response, the first act of harassment in time concerns the Claimant's treatment over the matter of her NMC Registration; that was in May 2003. On 30 June the Claimant complained to the Respondent of harassment and bullying. The next event specified by the Employment Tribunal in their Response concerns the Claimant's suspension on 5 September 2003. Finally, they refer to instances of the Respondent's failure to support the Claimant and the hostile environment which built up at the Brocklebank Health Centre, something which, on the Employment Tribunal's findings of fact contained in their Reasons (paragraphs 39 – 40; 45), straddled the 19 July 2003 date. What is, we think, of significance is that not only was the distinction between alleged acts of harassment pre and post 19 July not taken as part of the Respondent's case below; no point appears to have been taken on limitation. The first Originating Application alleging harassment was presented on 5 December 2003. The relevant limitation period is contained in Section 68 RRA. The primary limitation period is 3 months beginning when the act complained of was done (Section 68(1)). Section 68(7)(b) provides that for the purposes of the section any act extending over a period shall be treated as done at the end of the period. On the Employment Tribunal's findings referred to above the course of conduct found to amount to harassment continued beyond the 19 July. Consequently we reject Miss Carrs-Frisk's submission that the commencement of Section 3A on 19 July precluded the Employment Tribunal from taking into account events occurring prior to that date, which events formed part of a course of conduct which viewed overall constituted harassment.[32]Next, it is submitted that the matters referred to in the Response cannot form the basis of a properly supported finding of harassment. We disagree. The treatment identified by the Employment Tribunal, by reference back to their detailed findings of fact in their Reasons, is capable of falling within the definition of unwanted conduct by the Respondent contained in Section 3A.[33]Further, Miss Carrs-Frisk submits that the Employment Tribunal's Response identifies no adequate basis for concluding that the harassment found was on racial grounds. Again, we are satisfied, looking at the Employment Tribunal's reasons overall, that there are sufficient findings in the original reasons to support the conclusion that the harassment was on racial grounds.[34]Accordingly we reject the appeal against the finding of racial harassment. Constructive Unfair Dismissal[35]We have found the least difficulty with this part of the appeal. True it is, as Miss Carrs-Frisk submits, that the factual basis for the claims brought under the RRA coincide with the claim of unfair constructive dismissal under the Employment Rights Act 1996, as appears from paragraph 107 of Ms Ruban's closing submissions below. However, we do not accept that the constructive dismissal case depends upon a finding of a contravention of the RRA, although we have, in the event, upheld the Employment Tribunal's finding of racial harassment under Section 3A. Ms Ruban has taken us particularly to paragraph 64 (P.22) of the Employment Tribunal's Reasons, which follows a correct self-direction in law at paragraphs 61 – 63, and their reasoning at paragraphs 73 – 77, which satisfies us that in resigning on 26 March 2004 the Employment Tribunal was entitled to conclude that she did so in circumstances amounting to a constructive dismissal. It was not contended on behalf of the Respondent that if the Claimant was constructively dismissed that dismissal was fair. Disposal[36]It follows that this appeal succeeds in part. The Employment Tribunal's findings of direct race discrimination and victimisation contrary to RRA cannot stand and are set aside. However, the findings of racial harassment and constructive unfair dismissal stand.[37]What course, in these circumstances, should this case now take? We accept Miss Carrs-Frisk's submission that it would not be appropriate to now remit to Mrs Gleeson's Tribunal those issues for rehearing following our application of the Burns/Barke procedure in this case. It will instead be necessary to remit the issues of direct race discrimination and victimisation to a fresh Employment Tribunal for full rehearing.[38]We note (Reasons paragraph 78) that the issue of remedy was adjourned to a hearing originally fixed for 24 February 2005. We assume that that remedy hearing has been adjourned pending the outcome of this appeal. If so, our approach is this. Subject to any further appeal against our decision in this appeal (none being encouraged) it will be for the Claimant to decide whether(a) to pursue her claims of direct race discrimination and victimisation at a remitted hearing before a fresh Employment Tribunal, in which case the question of remedy for racial harassment and constructive unfair dismissal will be remitted to that fresh Tribunal or(b) not to pursue those 2 outstanding complaints, in which case the question of remedy for racial harassment and constructive unfair dismissal will remain with the Gleeson Employment Tribunal for determination.[39]We are conscious that this form of order has not been discussed with Counsel. Consequently we give liberty to both parties to apply on notice to each other on paper to the Employment Appeal Tribunal, marked for my attention, to vary or discharge the terms of our proposed order; such application to be made within 14 days of the date on which this Final Judgment is promulgated.