MS P GRAVELL v LONDON BOROUGH OF BEXLEY [2007] UKEAT 0587_06_2409

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2007] UKEAT 0587_06_2409Case No Appeal No. UKEAT/0587/06Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS P GRAVELLAPPELLANTLONDON BOROUGH OF BEXLEYRESPONDENT
Before
His Honour Judge AnsellDate 24 September 2007
[1]APPEARANCES For the Appellant MS RUSSELL (of Counsel) (Bar Pro bono unit) Instructed by: 11 Sheridan Road Bexleyheath Kent DA7 4AP For the Respondent MR M SHERIDAN (of Counsel) Instructed by: Bexley Council Civic Offices Broadway Bexleyheath Kent DA6 7LB SUMMARY Race Discrimination Tribunal Chairman in error in striking out part of a victimisation claim relating to comparison of treatment with another female employee when allowing similar allegations to be heard. HIS HONOUR JUDGE ANSELL This has been the hearing of an appeal from a Chairman alone, Ms Wallis, sitting at Ashford on 4 September 2006, who, in a written decision delivered to the parties on 20 September, struck out that part of the claim which related to the allegation of victimisation; other parts were allowed to proceed subject to payment of a deposit.[2]The Chairman also struck out two specific allegations of racial harassment. At the sift stage Judge Richardson was concerned about the approach taken by the Chairman on those matters, and allowed the matter through to a full hearing. Indeed, His Honour Judge Clark, on 2 March of this year, reinstated those claims and they are now pending at the Tribunal waiting, I am told, a result of this case.[3]The appeal in relation to the matters that I am concerned with was initially refused on the sift by Judge Richardson, but at the Rule 3(10) Hearing Mr Recorder Luba QC on 3 June allowed this full hearing to take place. At the hearing below the employers, London Borough of Bexley, were represented as they have been today very ably by Mr Sheridan of Counsel. The claimant appeared in person before me today. She has had the considerable benefit of representation by Ms Russell, to whom I am indebted.[4]The nature of the hearing was consideration of whether these claims should be struck out as having no reasonable prospect of success, and I am told that the manner in which the case was dealt with was that Mr Sheridan was invited to outline, as it were, the respondent's position on each contention, and the claimant was then invited to comment on the respondent's approach. There was, it is right to say, even by that stage, a considerable volume of documents and material before the Chairman, in the form of ET1s, 3s and additional particulars.[5]The background is that Ms Gravell had, from June 2001 until 15 January of this year, been employed as a Prevention and Advice Officer in the Housing Department, and Judge Clark described her as white with British/English nationality. She had launched a sex discrimination claim on 6 February 2002 against her employers relating to an unsuccessful application of a post in the legal department, and it is accepted that was a protected act. The first part of her claim as originally drafted alleged less favourable treatment by the legal department and members of it, running on from 23 January 2003.[6]The Chairman, in the decision, began by setting out what the issues were, in particular as to whether the proceedings were scandalous, vexatious or had no reasonable prospect of success. She explained at paragraph 5 the process that she had taken, as I have already set out, in asking Mr Sheridan to set out the position and seeking replies from the claimant.[7]In particular, at paragraph 6, she reminded herself of the warnings from this court, and indeed the Court of Appeal, that particularly with fact-sensitive issues such as victimisation there was a danger in seeking to take an early shortcut approach before, in particular, discovery and disclosure had taken place. She also reminded herself of the danger of being seen to deal with the facts of the case, particularly against areas where it is necessary to first of all find primary facts and then consider what inferences can be drawn from them and also the dangers of picking out or eliminating particular pieces of evidence from a whole course of conduct.[8]I pause of course to comment that the eradication or elimination of causes of action does, to my mind, necessarily prevent them being adduced in evidence by way of background to other allegations, providing those other allegations obviously are still live issues. In particular, the Chairman reminded herself of the case of Ezsias v North Glamorgan NHS Trust (UKEAT/0705/05 and 0612/05. 25 July 2006), then at the EAT stage, though it subsequently went to the Court of Appeal. It is useful that I remind myself at the outset particularly of the passage at paragraph 58 of the decision of The Honourable Mr

Justice Elias (President) where he said this:

"However, where the facts themselves are in issue, in my judgment it can only be in the most extreme case that the Chairman can say without any evidence being tested in cross-examination that the disputed facts will inevitably or almost inevitably be resolved against the claimant. Such a finding involves a ruling that the claimant is either dishonest or very fundamentally misguided. The evidence suggesting that may sometimes be strong but that is a far cry from justifying an inference from such facts as are revealed in the papers alone that the claimant's case has no real merit."
That approach was approved by the Court of Appeal and in particular in the judgment of Maurice Kay LJ.[9]The first part of the claim related to what was said to be a course of less favourable treatment, as I have said, by the Legal Services Department, arising out of what had to be their knowledge of the earlier Tribunal proceedings. The five allegations set out in paragraph 10 were that:
"The Legal Services Department ignored her requests for advice; they sent her advice or decisions which were perverse; that on 21 June 2005, she was told that her correspondence with private housing landlords had to include a paragraph drafted by the Legal Department to accord with the requirement to give a caution under the provisions of the Police and Criminal Evidence Act 1984; that her request for Counsel's opinion in respect of the need to include such a paragraph had been refused; that her complaint about members of the Legal Services Department was dealt with by another member of that Department."
[10]The Chairman noted that in her grievance letter the claimant had alleged, that it was not until January 2005 when she heard that Mr Atkins, a solicitor in the Legal Services Department, was away from the office at the Tribunal in Ashford, that she considered the delays that she was encountering in obtaining advice from the legal department might have something to do with the possibility that Mr Atkins could have seen, and had access to, her file in respect of her original Tribunal claim. The claimant told the Chairman this was not simply a hunch but that she had had clear examples that her work had been treated differently, and therefore the Tribunal would be able to draw the inference that she had been victimised because of her original Tribunal claim.[11]The Chairman's conclusions from paragraph 16 were that:
"In order to succeed, the Claimant would have to show, on the balance of probabilities, that Mr Atkins and subsequently his colleagues were aware of the Claimant's original claim and that because of that claim they had acted in such a way in respect of the cases that she referred to them that would amount to less favourable treatment. "
The claimant accepted that she had no direct evidence about this but that because she thought that she could show her work was treated differently then she would invite the tribunal to draw an inference that this was the case. "Two members of staff of the Legal Department were mentioned by name by the Claimant had not, apparently, been employed by the Respondent at the time of that original Tribunal complaint. "The Chairman concluded that, in order to have any prospect of success, the Claimant would have to prove facts from which the Tribunal could conclude that the Respondent's Legal Department had embarked upon a course of action which involved deliberately giving wrong or incorrect advice to one of the Respondent's Housing Officers (the Claimant) and that they had done so because they were aware of her original Tribunal claim. The Chairman accepted the submissions of the Respondent that such a scenario was inherently incredible. There may well have been a difference of opinion between the Respondent's lawyers and the Respondent's Housing Department and/or the Claimant. It may well be the case that different cases were treated differently, for various reasons. However, the Chairman concluded that as a basis for a claim of victimisation, this contention had no reasonable prospect of success."[12]The complaint made by the appellant before me is firstly relating to the general complaint that the Chairman has taken this view without the close examination of documents and witness evidence which would of course take place in a full hearing, and before disclosure had taken place. Therefore, in a case of this sort it was very dangerous to take this approach: to shut out a claimant who was effectively being asked, through a series of questions before the Chairman, to justify her case; the Chairman clearly not being able to take in all the material that had been already disclosed in the documents beforehand.[13]Before me, Ms Russell in particular has concentrated in relation to the issue of knowledge, relying not just on the fact that there was the potential of an inference being drawn that Mr Atkins had sufficient knowledge from January 2005 when the claimant discovered that he was away from the office at the Tribunal in Ashford, but in particular that later on that year reference to the tribunal proceedings had been mentioned in an email to one of the members of the Legal Department, named Hamish Craig; an email sent on 14 March 2005.[14]The difficulty that I have about that email is that that document was not in front of the Chairman, although it is right to say that in the body of the documentation there is certainly one reference to that email -- in passing I should comment that the email makes no reference to the nature of the Tribunal claim other than it was launched "as a matter of principle" following what the claimant described as "a series of ridiculous questions at the job interview".[15]Mr Sheridan rightly points out that there is no claim of perversity in relation to the finding that I have already read out, where at paragraph 17 it is said that the claimant accepted she had no direct evidence about this. It is a little difficult to understand, when the Chairman makes that comment, whether she is talking about direct evidence about knowledge or direct evidence about the detrimental treatment. But since it follows paragraph 16 when references are made to both knowledge and detrimental treatment, one can only assume that the Chairman is referring to the claimant's answers to both. Nor is there any application before me to adduce fresh evidence.[16]Ms Russell merely points to this as an obvious result and a danger of what can occur when, as it were, an over-robust approach is adopted at too early a stage in these proceedings without due consideration of the minutiae of what is contained in what was considerable documentation.[17]However, the fact remains, it seems to me, that the Chairman cannot be faulted on the approach that she took. She had set out the correct principles, she had reminded herself of the dangers of shutting out a claim, or part of a claim, at this early stage, and had noted the guidance in Ezsias ; and in particular had clearly based her decision on this part of the claim on what she had been told by the claimant. It seems to me that it is not unreasonable, even if there is a vast amount of documentation, for a Chairman to try and get to grips with a case and to try and establish what a claimant is saying about a particular part of a case, in particular the key ingredients of a case. She was faced with a position here there was no direct evidence that either Mr Atkins or other members had direct and detailed knowledge of the particular claim. Even if that was incorrect, the suggestion advanced by the Claimant that in an attempt has to do her down they had decided to give wrong advice to a member of a significant department in a local authority.[18]The Chairman, it seems to me, was entitled to take the view that overall, even at this early stage, it was, as she described it, inherently incredible. It was based on alleged knowledge of proceedings that had been commenced some three years previously, and it seems to me that the Chairman, having considered the issues and the way in which the case was being presented to her by both parties, was entitled to reach the conclusion that she did. This, to my mind, was not a breach of the guidance given in the earlier authorities, simply because, on the key issue of knowledge, there were not really disputed facts to the extent that the claimant was not able to point to the relevant members of the Legal Department of 2005 having sufficient and direct knowledge of the earlier proceedings. Without the ability to show that, the claim of victimisation would not get off the ground.[19]The second part of the claim related to further acts of victimisation because of the Tribunal proceedings, and the three elements that were struck out by the Chairman were items (i), (iii) and (v). Item (i) was an allegation that:
"The Housing Management Team insisted on becoming involved when the Claimant experienced problems with the Legal Services Department, but did not get involved when the claimant had difficulties with a work colleague, Mrs Purewal."
[20]At paragraph 26 this part of the claim is dealt with, and the Chairman finds:
"… it is difficult to see how the Claimant suffered a detriment, even if she is right that she did not ask her Management Team to become involved in either dispute."
Firstly, as regards the use of the language, "It is difficult to see", some criticism is made of that approach, rather than using the correct language which is of course "Having no reasonable prospect of success". If that paragraph were taken in isolation one could see there might be some merit in the submission, but if one looks down to paragraph 32 there is an overall conclusion that the three paragraphs which are struck out; namely (i), (iii) and (v), "Have no reasonable prospect of success". It seems to me that, taken together, that indicates that the Chairman did in fact apply the correct test.[21]I have pressed Ms Russell today as to whether in fact there is any evidence, even on the papers that was, as it were, concealed and tucked away, that might show such a detriment. She has not been able to satisfy me that there is any material on that particular aspect, and again I cannot find fault with the Chairman's approach. However, the other two matters do concern me, since they alleged a detrimental treatment in the way that she was dealt with on matters, as compared to the treatment of her work colleague, Miss Moore.[22]The difficulty that I have is that in another allegation which was allowed through, (ii), there is similar comparison made to the treatment of a colleague, Miss Moore, and although the Chairman has sought to justify the decision in relation to the paragraphs that she struck out, with regard to item (iii) again there was no detriment; in regard to claim (v) that she would not be able to show that the reason that her emails were vetted was the previous tribunal claim. I am not able to see why the allegation at (ii) involving Miss Moore has been left in, when other allegations concerning the comparison with the way that Miss Moore was dealt with had been struck out, although the Chairman has sought to justify it.[23]In addition, in both those items that have been struck out, the Chairman in individual paragraphs has used the language, "It seems unlikely". I accept that there is the sweeping up paragraph in paragraph 32, but I am concerned at her use of the language, "It seems unlikely" is not appropriate to a striking out claim.[24]In addition claim (vi) was allowed through, even though the Chairman concludes, "It is not clear upon which events this claim is based". I therefore am forced to conclude that the Chairman's discretion was not exercised properly in terms of a proper consideration of these two parts of the claim. It seems to me that she was wrong to strike out those two parts and leave in a similar allegation in claim (ii). I therefore propose to allow the appeal to extend to allowing reinstating allegations of (iii) and (v).[25]I do sincerely hope this will not lead to further litigation, we can actually get on with this lady's claim. I am sure she wants it to be heard.