MR G SAINI v 1) ALL SAINTS HAQUE CENTRE 2) Mr D BUNGAY 3) Mr S PAUL [2008] UKEAT 0227_08_2410

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0227_08_2410Case No Appeal No. UKEAT/0227/08Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR G SAINIAPPELLANT1) ALL SAINTS HAQUE CENTRE 2) Mr D BUNGAY 3) Mr S PAULRESPONDENT
Before
Lady Smith Mr P R A JacquesDate 24 October 2008
[1]APPEARANCES For the Appellant MS SALLY ROBERTSON (of Counsel) Instructed by: Messrs Davies and Partners Solicitors Latham House 33-34 Paradise Street Birmingham B1 2BJ For the Respondent No appearance or representation by or on behalf of the Respondent SUMMARY Religion or Belief Discrimination Discrimination on grounds of religious belief. Tribunal erred in considering only whether or not the Respondents mistreated the Claimant on the grounds of his religion in circumstances where they found as fact they mistreated him for the purpose of seeking to get rid of another employee on the grounds of that employee's religion. THE HONOURABLE LADY SMITH This is an appeal by a Claimant from the judgment of an Employment Tribunal sitting at Birmingham, Employment Judge van Gelder, dismissing his claim against the Respondents of discrimination on grounds of his religious faith and harassment. The judgment was registered on 3 March 2008.[2]Both the Claimant and a fellow employee, Mr J Chandel, were successful in establishing that they had been unfairly dismissed and wrongfully dismissed. Mr Chandel also succeeded in establishing that he was discriminated against on the grounds of his faith. The Claimant was not, however, successful in his discrimination claim. Both the Claimant and Mr Chandel are of the Hindu faith. Their case before the Tribunal included that they had been treated in a discriminatory manner by a group who were adherents to the Ravidass faith. The second and third Respondents were both Ravidassis. The Ravidassis form a distinct group with distinctive religious beliefs that distinguish them from both the Sikh and Hindu communities. BACKGROUND[3]The All Saints Haque Centre is an advice centre located in the All Saints district of Wolverhampton. Its services include the provision of immigration advice. Mr Chandel was employed as its projects manager until his dismissal on 3 July 2006. The Claimant was employed as a senior advice worker from 11 August 2003 until his resignation on 11 July 2006.[4]The third Respondent was employed by the Centre as an advice worker until June 2005 when his post came to an end due to the loss of the requisite funding for it. The second Respondent was a volunteer worker at the Centre until the work he had been doing came to an end also in June 2005. Non Ravidassis remained in post at the Centre including Mr Chandel. Both the second and third Respondents resented the fact that they had lost their posts and that non Ravidassis had, as they saw it, been retained in post by the Hindu manager, Mr Chandel.[5]By the end of October 2005, control of the board of directors of the Centre had passed to the second and third Respondents and their associates from the Ravidass community. The second and third Respondents, by that stage, wanted to get rid of Mr Chandel. The reason that they wanted to do so was that he was a Hindu.[6]In April 2005, the Office of the Immigration Services Commissioner ('OISC') began an enquiry into certain complaints by users of the Centre about its charging practices. It concluded, in a report dated 3 November 2005, that financial charges had wrongly been made to process applications for work permits and threatened that in the event of any further complaint regarding such charging being upheld, the Centre would lose valuable exemptions from compliance with certain statutory requirements. That report was critical of Mr Chandel; it was critical of the inadequacy of his supervision. It gave the Centre cause for concern and seems to have given the second and third Respondents support for their plan to get rid of Mr Chandel. In December 2005, the second Respondent reassured the Claimant that his position was safe; he and the third Respondent were only interested in having Mr Chandel ousted and replaced.[7]Following receipt of the OISC report, the board of the Centre decided to stop charging for legal services. The Centre subsequently, in March / April 2006, received three complaints from users regarding the Claimant's handling of their cases in 2004 and 2005, prior to the OISC investigation. The complaints included allegations relating to the charging of significant sums.[8]The Centre took forward those complaints by instituting procedures which targeted Mr Chandel. They set about an exercise in which they attempted to gather together evidence of misconduct by him. It was carried out in a wholly inappropriate manner, as detailed in the Tribunal's findings, and involved suspending him on 24 May 2006 and dismissing him summarily on 7 July 2006. The Tribunal found that the Respondents' investigation had been quite inadequate, that they were not entitled to conclude that the Claimant was guilty of misconduct and that the fact of Mr Chandel's Hindu belief was a substantial and effective cause for the inappropriate disciplinary action that was orchestrated by the second and third Respondents.[9]Included in the Respondents' conduct was certain action that they took in respect of the Claimant. Firstly, they interviewed him on 30 May 2006. It was an interview by a panel comprising seven members of the board of directors including the second and third Respondents. A series of written questions was posed. One was whether he was aware of "these complaints against you". The Claimant volunteered information which implicated Mr Chandel and indicated that he had acted on his instructions including charging for work on immigration cases. At the end of the interview he was told that he would not be needed any further. He was given no feedback after the interview, he was not allowed to examine relevant files and was left in a state of uncertainty.[10]Secondly, the Claimant was subjected to a further interview on 16 June 2006, this time by a panel of five. He became increasingly anxious as he was questioned again about the complaints and about whether or not the charging practices had continued. He asked the third Respondent what would happen next. He was told by the third Respondent "We will take action". Nothing in particular was specified nor was any explanation given to the Claimant of how that fitted with him having been told in December 2005 that his position was safe.[11]Thirdly, on 23 June 2006, the third Respondent caused the Claimant anxiety by demanding the production of certain files at short notice.[12]Fourthly, the Claimant was suspended at 4 pm on 23 June 2006, action which, not surprisingly, caused him to suffer further anxiety. By that stage he felt that he was being pressured by the Respondents to provide them with ammunition to justify their taking action against Mr Chandel rather than it being a matter of any proper investigation being carried out. The Claimant followed matters up by writing a letter of grievance dated 26 June 2006 and writing to a local councillor on 28 June 2006, expressing his concerns about the procedures that were being adopted and his belief that the Respondents were involving him, the Claimant, for an ulterior motive. He felt that he was being intimidated and bullied.[13]Fifthly, the Claimant was called to a disciplinary hearing. He attended it 'under duress' according to the Tribunal's findings, only for it be adjourned to 11 July 2006. He resigned on 11 July 2006.[14]The Tribunal found that the Claimant had been entitled to conclude that the Respondents were not intending to operate a fair or impartial disciplinary process, that he had lost trust and confidence in them and that he had been entitled to do so. The Tribunal's Judgment[15]The Claimant was, as we have noted, successful in his case of unfair constructive dismissal and wrongful dismissal. He also claimed that he had been discriminated against on grounds of religion / belief. The Tribunal's conclusion on that part of his claim is at page 40 where, having referred to paragraphs 3(1)(a) and 5(1)(b) of the Employment Equality (Religion or Belief) Regulations 2003 ('the 2003 Regulations') they state:
"Mr Saini does not identify a comparator. Assuming a notional comparator would have been an employee of the same status as Mr Saini who was not a Hindu but had been subject to the allegations which were under investigation in the circumstances in which the tribunal found the investigation was being conducted i.e. as a vehicle to implicate the Centre manager who the board, principally the second and third respondents, were intent on removing from his post. The tribunal have noted that Mr Saini had been told in December that he was safe and that the interest of the second and third respondents was the removal of Mr Chandel. The tribunal concluded that this genuinely was a motive for the actions that were taken by the respondents. Mr Saini was a victim of that process but not a target of that process."
The Tribunal conclude:
" ……that had a similar employee who had not been a Hindu been similarly implicated – the tribunal did not find that there had been a specific attempt to find evidence to implicate Mr Saini as a Hindu in order to initiate the disciplinary investigation – then that individual employee would have been treated in a similar manner. Whilst the actions of the respondents amounted to a repudiatory breach of the implied term of trust and confidence the tribunal did not conclude that their actions had been motivated by the fact that Mr Saini was a Hindu. Consequently his claim under Regulation 3(1)(a) is dismissed."
[16]The Tribunal then turn to the Claimant's harassment claim under Regulation 5(1)(b): "In view of the analysis in relation to Regulation 3(1)(a), although the behaviour of the respondents towards Mr Saini may have had the purpose or effect of violating his dignity and creating an intimidating and hostile, degrading, humiliating or offensive environment for him in accordance with the provisions of Regulation 5(1)(a) and (b), the tribunal did not conclude that the respondents had engaged in that unwanted conduct on grounds of religion and belief." and they dismissed the harassment claim as well.[17]It is, accordingly, plain that the Tribunal looked only at the question of whether or not the Respondents acted as they did towards the Claimant on grounds of his religion and belief. They did not consider the question of whether they did so because of Mr Chandel's religion or belief. They did not refer to or discuss any of the authorities in which the potential relevance of that question in a discrimination claim is discussed. We are satisfied that they have, however, considered the question of whether or not, on the facts found by them, the Respondents' conduct towards the Claimant fell within the description in regulation 5(1)(b) of the 2003 Regulations and concluded that it did. The only reason, as they saw it, that they could not find in his favour was that that conduct was not on the grounds of the Claimant's religion or belief. The Appeal[18]Ultimately, the appeal focussed on the single issue of whether or not the Tribunal had erred in its conclusion that the Claimant's claim under Regulation 5(1)(b) of the 2003 Regulations had to be dismissed. Ms Robertson submitted that the Tribunal had misdirected itself in confining its considerations to the question of whether or not the Respondents' conduct was on grounds of the Claimant's religion or belief. They should have considered whether it was on grounds of Mr Chandel's religion or belief. If it was, then the Claimant's claim of harassment should have been upheld.[19]In support of her submissions on this central issue, Ms Robertson made reference to the Framework Directive, the terms of paragraphs 3 and 5 of the 2003 Regulations, Weathersfield Ltd v Sargent [1999] IRLR 94 , Redfearn v Serco Ltd [2006] IRLR 623 and Coleman v Attridge Law [2008] IRLR 722 . It was plain from a consideration of the Framework Directive that the selection of a victim in order to target and discriminate against another person on grounds of their religion or belief fell within its purpose. It was plain from the authorities referred to that it did. The case under Regulation 5 required no comparator and the Tribunal had chosen the wrong comparator for the case under Regulation 3; it ought to have been a person who was not capable of being used as a tool against Mr Chandel. Her appeal was ultimately confined to the case under Regulation 5 though, which was sufficient for the Claimant's purposes and apt in the light of the particular facts and circumstances of the case. In essence, her case was that the Claimant suffered unwanted conduct amounting to harassment and it was because of Mr Chandel's religion. The Claimant was mistreated as a means of targeting Mr Chandel. It only happened because of Mr Chandel's religion. Such adverse treatment was within the object and intent of the legislation.[20]Separately, Ms Robertson submitted, under reference to the case of Judge v Crown Leisure Ltd [2005] IRLR 823 that the Tribunal had proceeded by making a finding in fact for which neither party had contended and had not but should have given parties the opportunity to address them on it . The finding in question was that although the behaviour of the Respondents may have had a purpose or effect which fell within the regulation 5(1)(b) description it was not on the grounds of the Claimant's religion but on account of their desire to target Mr Chandel. The Claimant's case had been one of discrimination and harassment directed at him on the grounds of his religion; had it been known that the Tribunal were minded to conclude that the conduct was on account of the desire to remove Mr Chandel, submissions would have been made to the effect that that was relevant discrimination since it was on grounds of Mr Chandel's religion. Relevant Law[21]The 2003 Regulations, as in force at the time of the events complained of, provided:
"5(1) For the purpose of these Regulations, a person ("
A") subjects another person ("B") to harassment where, on grounds of religion or belief A engages in unwanted conduct which has the purpose or effect of (a) Violating B's dignity; or (b) Creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (2) Conduct shall be regarded as having the effect specified in para 1(a) or (b) only if, having regard to all the circumstances, including in particular the perception of B, it should reasonably be considered as having that effect."[22]We agree that it is appropriate to begin with a consideration of the terms of the Framework Directive. We note in particular that paragraph 29 of the recital states:
"Persons who have been subject to discrimination based on religion or belief, disability, age or sexual orientation should have adequate means of legal protection." that the provisions of Article 1 include: "
The purpose of the Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief … as regards employment and occupation, with a view to putting into effect in Member States the principle of equal treatment." and that paragraph 3 of Article 2 provides:
"Harassment shall be deemed to be a form of discrimination within the meaning of paragraph 1, when unwanted conduct related to any of the grounds referred to in Article 1 takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading , humiliating or offensive environment… ."
[23]The relevance, in a discrimination claim, of conduct directed by an employer towards an employee not on the grounds of a characteristic of that employee but on the grounds of a characteristic of another person, which characteristic is protected by anti–discrimination legislation, has been discussed in the Court of Appeal on two quite recent occasions. The first is the case of Weathersfield Ltd v Sargent , where an employee working as a receptionist was instructed to take steps to see to it that her employers' vehicles were not rented to "any coloured or Asians". The Court of Appeal upheld a finding that she had been unlawfully discriminated against on grounds of race, agreeing with the reasoning of the EAT in the earlier case of Showboat Entertainment Centre Ltd v Owens [1984] IRLR 7 . At paragraphs 15 and 16, Pill LJ said :
"15. … Giving the judgment of the EAT, Browne – Wilkinson J , as he then was , stated, p.70B, that 'the words "on racial grounds" are perfectly capable in their ordinary sense of covering any reason or action based on race, whether it be the race of the person affected by the action or others.' He added , at p.71C : 'We therefore see nothing in the wording of the Act which makes it clear that the words "on racial grounds" cover only the race of the complainant … We find it impossible to believe that Parliament intended that a person dismissed for refusing to obey an unlawful discriminatory instruction should be without a remedy. It places an employee in an impossible position if he has to choose between being party to an illegality and losing his job. It seems to us that Parliament must have intended such an employee to be protected so far as possible from the consequences of doing his lawful duty by refusing to obey such an instruction ….s.1(1)(a) covers all cases of discrimination on racial grounds whether the racial characteristics in question are those of the person treated less favourably or of some other person. The only question in this case is whether the unfavourable treatment afforded to the claimant was caused by racial considerations.'… 16. …In the context of the 1976 Act unfavourable treatment of an employee, if it requires the employee to carry out a racially discriminatory trading policy in circumstances such as the present, is treatment on racial grounds. That conclusion does involve giving a broad meaning to the expression racial grounds but it is one which in my view is justified and appropriate."
[24]We note that in the Showboat case, an employee had been dismissed for refusing to exclude all black customers from an entertainment centre.[25]We turn next to the case of Redfearn v Serco where the driver of a bus for children and adults with special needs who was identified in a newspaper as a candidate representing the British National Party in local elections was dismissed "on grounds of health and safety", according to his employers. His job was based in an area of West Yorkshire where a large section of the population is of Asian origin. The Tribunal found that he had not been dismissed on racial grounds but on health and safety grounds and that finding was upheld by the Court of Appeal. The facts are, accordingly, not directly in point. However , in the course of his judgment, Mummery LJ made some observations which are relevant to the issues that we have to consider :
"44. The essence of Showboat is that an employee who refuses to implement his employer's racially discriminatory policy is entitled to be protected from less favourable treatment under the 1976 Act. The use of the employee to implement the employer's racially discriminatory policy means that 'racial grounds' operate directly in the less favourable treatment of the employee, whether the race or colour in question is that of the employee or that of a third party. … 45. …The ratio of Showboat is that the racially discriminatory employer is liable 'on racial grounds' for the less favourable treatment of those who refuse to implement his policy or are affected by his policy."
[26]Turning to the facts of Redfearn , Mummery LJ continued :
"In this case it is true that the circumstances in which the decision to dismiss Mr Redfearn was taken included racial considerations, namely the fact that Serco's customers were mainly Asian and that a significant percentage of the workforce was Asian. Racial considerations were relevant to Serco's decision to dismiss Mr Redfearn but that does not mean that it right to characterise Serco's dismissal as being 'on racial grounds'."
[27]That was in circumstances where the Tribunal had found as fact that Serco had dismissed Mr Redfearn because they wanted to avoid what they perceived as the likely detrimental health and safety consequences of the presence of growing tension and anxiety in the depot arising from Mr Redfearn's association with the BNP and its policies.[28]What we take from the above is that Ms Robertson's submission is correct insofar as she argues that regulation 5(1)(b) will be breached not only where an employee is harassed on the grounds that he holds certain religious or other relevant beliefs but also where he is harassed because someone else holds certain religious or other beliefs. The circumstances need not be confined to those where an employee has been instructed to act in a discriminatory fashion. To use an employee in any manner in the implementation of a discriminatory policy is caught if the effect on the employee falls within any of the descriptions set out in paragraph 5(1)(b). Such an interpretation is consistent with the aims and intention of the Framework Directive and of the plain import of the legislation. To adopt the language of the Advocate General at paragraph 17 in Coleman v Attridge Law : "As soon as we have ascertained that the basis for the employer's conduct is one of the prohibited grounds then we enter the realm of unlawful discrimination.".[29]Thus, if on a proper analysis of the facts, an employee establishes that he has been subjected to paragraph 5(1)(b) conduct because of his employer pursuing a discriminatory policy against the religious beliefs held by another employee that will be enough. There is, of course, no need for a comparator for the purposes of Regulation 5. Discussion and Decision[30]We are persuaded that this appeal should be upheld. The Tribunal erred in not holding, on the facts found by them, that the Respondents had subjected the Claimant to discriminatory harassment in breach of Regulation 5. We read the passage at page 40 where they refer to the Respondents' behaviour in regulation 5(1)(b) terminology as indicating that they were satisfied that the Respondents' conduct fell within the relevant statutory description. Further, it is plain from the Tribunal's conclusions that they were readily satisfied that the reason why the Respondents mistreated the Claimant in the way that they did was not simply their desire to get rid of Mr Chandel but their desire to get rid of him because he was a Hindu. Their animosity towards Mr Chandel was, on the Tribunal's findings, solely because he was a Hindu. The extent of their determination to bring pressure to bear against the Hindu elements at the Centre and to further the cause of Ravidassis was, on the Tribunal's findings, really quite profound. In these circumstances, the desire to get rid of Mr Chandel cannot be separated from its impetus namely the Respondents' anti Hindu policy. Thus, if, as the Tribunal found, the way in which the Claimant was treated was because of the wish to remove Mr Chandel it was also because of that policy. That policy was a discriminatory one and the only conclusion that can, in all the circumstances, follow is that the Respondents' treatment of the Claimant was harassment, that it was on grounds of religion and that it was contrary to Regulation 5.[31]That is the conclusion that the Tribunal ought to have drawn and they were in error in failing to do so. The route to their error seems to have lain partly in their having thought that since they were dismissing the claim under Regulation 3 on the ground that when the Claimant's treatment was compared to the hypothetical comparator, there was no difference but partly and more fundamentally in their failure to consider whether Mr Chandel's religion and the Respondents' attitude to it was relevant when considering the Claimant's case.[32]The latter does appear to have arisen from the Tribunal having reached a factual conclusion that was not anticipated by either party and in respect of which they had not, accordingly, made submissions. Whilst we would not go so far as to determine that it was wrong for them to do so or that there was an absolute requirement to call for further submissions, the circumstances do highlight the need for Tribunals to be vigilant if, after deliberation, they decide that they are bound to reach a significant conclusion of fact that has not been anticipated and consider whether there is a possibility that issues of law also arise in respect of which submissions have not been made. Had this Tribunal done so and invited further submissions, they would not have failed to take account of the relevant authorities on the issue that was central to the appeal. Disposal[33]In these circumstances, we will pronounce an order upholding the appeal against the Tribunal's dismissal of the Claimant's discrimination claim and substituting for it a finding that the Respondents discriminated unlawfully against the Claimant by harassing him on grounds of religion contrary to paragraph 5 of the Employment Equality (Religion and Belief) Regulations 2003 .