SOUTH LONDON HEALTHCARE NHS TRUST v DR B I AL-RUBEYI [2010] UKEAT 0269_09_0203

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2010] UKEAT 0269_09_0203

Case No Appeal No. UKEAT/0269/09

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

SOUTH LONDON HEALTHCARE NHS TRUSTAPPELLANT

DR B I AL-RUBEYIRESPONDENT

Before

His Honour Judge McMullen

Date 2 March 2010

[1]APPEARANCES For the Appellant MR BENJAMIN BURGHER (of Counsel) Instructed by: Messrs Beachcroft LLP 100 Fetter Lane London EC4A 1BN For the Respondent MR PHILIP THOMPSON (of Counsel) Instructed by: Messrs Irwin Mitchell LLP Imperial House 31 Temple Street Birmingham B2 5DB SUMMARY VICTIMISATION DISCRIMINATION The Employment Tribunal dismissed the Claimant's claims of direct discrimination on grounds of race and religion, without appeal. Its Judgment upholding her claim of victimisation was set aside. There was no basis for holding that a colleague knew the Claimant's grievance against her was a complaint of discrimination and so could not found liability. The employer's admitted less favourable treatment was not in any event by reason of the Claimant's grievance. HIS HONOUR JUDGE McMULLEN QC This case is about victimisation contrary to the protection against race and religious discrimination. It is the judgment of the court in which all members appointed by statute for their diverse specialist experience have contributed. We will refer to the parties as the Claimant and the Respondent. Introduction

[2]It is an appeal by the Respondent in those proceedings against a judgment of an Employment Tribunal chaired by Employment Judge Gumbiti-Zimuto sitting at London (South), registered with reasons on 12 January 2009. Following a two-day PHR, the oral hearing took 13 days in two tranches, separated by four months, and the Tribunal then met on three separate days in private, separated by three months. The 31 page judgment was delivered almost six months after the oral hearing. No issue has been raised before us as to that chronology.

[3]The Claimant is today represented by Mr Philip Thompson and below by different counsel. The Respondent is represented by Mr Benjamin Burgher. The Claimant complained of unlawful direct discrimination on the grounds of her race and religion, victimisation and unlawful deductions from her pay.

[4]The Tribunal dismissed the claims of direct race and religious discrimination. It upheld the pay claim, and that has been settled by agreement. It upheld both the victimisation claims. The Respondent appeals. Directions sending this appeal to a full hearing were given in chambers by HHJ Richardson. He also directed the Employment Judge to supply further reasons and we are grateful to him for providing them. The essential issue now relevant on appeal is whether the Respondent victimised the Claimant for having made a protected allegation The legislation

[5]The relevant provisions of the legislation are not in dispute. The Race Relations Act 1976 outlaws victimisation in the following terms, "2(1)A person ('the discriminator') discriminates against another person ('the person victimised') in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has –(a) brought proceedings against the discriminator or any other person under this Act; or

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act; or

(d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them."

[6]A regime in almost identical terms applies under the Employment Equality (Religion or Belief) Regulations 2003 . We are not here concerned with suspicion or intention as in the final sub-paragraph of the above provision. The facts

[7]The Respondent is a hospital formerly known as the Queen Elizabeth Hospital NHS Trust in southeast London. The Claimant was employed as a consultant paediatrician from 1995 when she resumed her employment, having previously been engaged in different positions, and remained there until the termination of the relationship in 2006. She is self-described as Iraqi and Arab, of Muslim religion.

[8]The key people from whom the Employment Tribunal heard, apart from the Claimant herself, were Dr Helen Issler, who is, with Dr Andrew Evans, a consultant paediatrician, Mr Nigel Perks, who is the lead clinician in paediatrics, Ms Sally Storey HR officer and Ms Jessica Britton-Wood, an independent employment relations consultant who carried out an investigation and gave advice. The paediatrics department at this hospital includes a number of other clinicians and administrators. It is common ground that it was dysfunctional and riven by personality clashes over a period of ten years.

[9]The Claimant herself had raised a number of grievances which were investigated in part by Mr Perks and which were taken no further. The Claimant at no stage throughout her long history of complaints about bullying and harassment in the department, some of which were upheld, mentioned her race or her religion. This aspect was suggested to her by Mr Young in personnel. He simply had a feeling that there might be something in the air but the Claimant was not persuaded and at no stage prior to 2005 did she raise a complaint based upon her treatment on the grounds of her race or religion.

[10]The review conducted by Mr Perks reported in June 2004 and it was almost a year later when the Claimant first raised an allegation that her treatment was on the basis of her race and her religion. This occurred on 1 April 2005 when the Respondent received her complaint and on 24 May 2005 when it received formally her grievance against, among others, Dr Issler.

[11]In mid July 2005, Dr Issler returned from her holiday and was aware, in general terms, that the Claimant had made a complaint about her. We have looked with care at the way in which Dr Issler was asked about this at the Employment Tribunal, and it is plain that, by 18 July 2005, Dr Issler was aware that the Claimant had raised a grievance against her but that no one had any information about it. She was also aware that there would be some investigation, and Dr Robson, the medical director, told her that she would have an opportunity to express her own concerns in writing.

[12]On 18 July 2005, an event occurred known as the Hancock incident. This has nothing to do with the matters which the Claimant raises by way of discrimination in the appeal, but it did trigger her leaving the department and she never returned. It set en train in the mind of the Respondent, however, another aspect of the case: the Respondent had decided upon engaging Ms Britton-Wood to investigate the grievance which the Claimant had put in in May. The Claimant went off for what was described as a period of sickness and, on 22 July 2005, Dr Issler sent an email to Dr Robson with a copy to Ms Storey who had conduct of the grievance investigation. She said this "Dear David, I have consulted the BMA and my family and have decided that if Bushra [the Claimant] returns to work as a consultant paediatrician in this trust I will submit my resignation. Since this has been forced upon me the BMA are advising me on the steps to be taken for constructive dismissal. I am in the fortunate position to take early retirement on a good pension and supplement my income elsewhere. I have informed Simon H-C of my decision. Helen Issler" The last reference is Mr Henley-Castleden who is also in HR.

[13]This was followed up on 29 July 2005 by a confidential letter to Dr Robson in which Dr Issler made a number of complaints about the Claimant, including unprofessional behaviour and inability to work within the team. Particular attention has been given to this in the proceedings, "Grievance procedures I returned from holiday to find that there were rumours that Bushra had instituted grievance procedures against members of the team. I am hopeful on this occasion that I might have avoided censure but I cannot be confident of this. Last year, Bushra started a grievance procedure about me, but I was never officially informed of this. I only learned about this in my capacity as a member of the Clinical Excellence Committee, when it was referred to by Nigel Perks. It is impossible to work in a climate where one is constantly under the threat of grievance procedures with complaints about bullying and harassment. It has become impossible to disagree with Bushra, however unimportant, since this is immediately translated into a complaint of bullying and harassment. … I found this undermined my ability to carry on my professional work and was simply making me unhappy. … This cannot continue."

[14]On 3 August 2005, a formal communication was uttered to Dr Issler and others indicating specifically that the Claimant contended that she had been the victim of discrimination on the grounds of her race and religion.

[15]The inquiry under Ms Britton-Wood continued apace. She was not challenged when she gave evidence before the Employment Tribunal on the scope of her investigation or on the conclusions she reached. It was a thorough and impressive examination of a large number of witnesses, both clinical and administrative, associated with the paediatrics department. The tribunal accepted the account of what she found and of her opinions. In particular, Ms Britton-Wood found that there had been bullying and harassment, there had been a club culture, an old-school regime operated by Drs Evans and Issler, and that there was substance in part of the Claimant's complaint and grievance. She recommended various solutions which included acknowledgement by those two doctors through apologies, which were, in due course, given in writing to the Claimant.

[16]Ms Britton-Wood examined the allegation of race and religious discrimination and came to the conclusion that none of the information given by the Claimant presented a prima facie case. She formed the conclusion that the allegations of discrimination were an afterthought by the Claimant and that the Claimant's focus was not on discrimination but on bullying and harassment, as to which she got home with Ms Britton-Wood to an extent. She reported that the only person who raised discrimination of any sort was Mr Young, but that was only on a tentative basis. She found that had there been aspects of discrimination, these would have come out in some of the earlier reports which had been written by experienced professionals including Mr Perks over the ten years that this department was operating unsatisfactorily.

[17]She made recommendations. She concluded years of efforts had failed and that the Respondent must move on, learn from its mistakes and require Drs Issler and Evans to accept that their behaviour had fallen short of the requisite standards. She considered that there should be separation of the Claimant from the department. Given that the Claimant had, by the time of her report on 26 May 2006, been absent from the department since 18 July 2005, be the one who should leave. She was aware that there were two others in the department who were likely to leave in addition to Drs Issler and Evans, and this was a matter which concerned her. On that basis, she recommended that steps be taken to separate the Claimant by work elsewhere and, if not, that she should be facilitated to leave the Respondent. The recommendation was accepted by Dr Robson and Ms Storey and, in due course, the Claimant left.

[18]The tribunal dismissed all of the direct discrimination claims in simple, clear terms, holding that there was no basis for any of the complaints. It accepted that there were problems in the relationships between the Claimant and Drs Evans and Issler but these were nothing to do with race or religion. The professional difficulties between them were acknowledged. That position is reiterated on four occasions in the passages dealing with the dismissal of the Claimant's direct discrimination claims. The Tribunal considered that the tensions were to do with personal and professional matters and not to do with race or religion. There is no cross-appeal.

[19]The central issue for the Employment Tribunal in the remaining part of the case was to determine whether there had been victimisation, but the disposal of the direct discrimination claims is instructive. It is important to note what this claim was about. As ultimately formulated, it was the refusal by the Respondent from 26 May 2006 to permit the Claimant to return to work following her grievance and its investigation by Ms Britton-Wood. The tribunal upheld this claim. The reason why the Respondent acted as it did was that the Claimant had done a protected act. The basis of the conclusion was a finding about Dr Issler in these terms, "103 We are satisfied that the attitude of Dr Helen Issler towards the Claimant was influenced by the fact that the Claimant had raised a grievance of discrimination against her. This had led Dr Helen Issler to put the threat to the Trust that she would resign if the Claimant was to return to work at the Trust. 104 The Trust ultimately concluded that there had been a breakdown of relationships among the consultant body. This was in spite of the Claimant's expressed wish to return and the fact that Dr Andrew Evans had expressed in his letter of apology (dated 23 March 2006) a willingness to 'ensure positive and collaborative working relationships for the future as the department moves forward.' There was no indication that other consultants were not willing to work with the Claimant. The Trust must have been affected by Dr Helen Issler's position which led to the position where the Trust refused to allow the Claimant to return to work. 105 The fact that the Claimant had made a complaint of discrimination was in our view 'a substantial and effective cause, a substantial reason, an important factor' it was the reason Dr Helen Issler could not work with the Claimant. This is what caused the Trust to adopt the attitude they did to the Claimant and in our view was the real reason why the Claimant was not allowed to return to work. Since the 18 July 2005 the Claimant had been away from work and what had occurred in the intervening period had been the resolution of the Claimant's complaints of discrimination through the grievance procedure culminating in Jessica Britton-Wood's report. 106 We are therefore of the view that is so far as the Trust refused to permit the Claimant to return to work after about May 2006 the Claimant has been victimised by the Respondent contrary to the provisions of the Race Relations Act and the Religion or Belief Regulations."

[20]In addition to those findings, at the request of the EAT, the Employment

Judge kindly supplied further answers, as follow:

"(1) Our finding of fact was that some time between about May 2005 and 22 July 2005 Dr Issler knew or suspected that the Claimant's grievance complained of discrimination. (2)(a) While there were simmering tensions between the Claimant and Drs Issler and Fenton over a period of time, which had resulted in complaints by the Claimant, these were not expressed by the Claimant prior to May 2005 to be on the grounds of race or religion. (d) The Claimant reinstated her grievance in a letter dated 3 March 2005 (p750) and provided further details dated 21 March 2005 (p753). The Claimant's grievance was now clearly an allegation based on race and religion. (e) We concluded that by the time Dr Issler wrote her email of the 22 July 2005 and the letter of the 29 July 2005, she was aware of the Claimant having made a grievance relating to race and religion because (i) in the letter of the 29 July 2005 Dr Issler refers to having 'returned from holiday to find that there were rumours that Bushra had instituted grievance procedures against members of the team' (ii) Dr Issler was now expecting her self as no longer willing to work with the Claimant. The change of attitude we conclude arises from the fact that the Claimant was now making allegations of race and religion discrimination against her."

Although the Employment Tribunal in the above paragraph uses the word "suspected", that is not part of the reasoning supported by either counsel in this case, which focuses, as we have found above, on the facts as to whether or not there was actual knowledge by Dr Issler of the Claimant's allegation of discrimination. The Respondent's case

[21]On behalf of the Respondent, it is contended that the Employment Tribunal went beyond its remit in answering the question it did in respect of the EAT's request, but in any event, the decision by the Tribunal is based upon an inference which is not supported by any primary fact. The finding was not based upon any material which Dr Issler or the Claimant produced as to a connection between the knowledge of Dr Issler that a grievance had been made about her and its connection to discrimination in any form. The Claimant's case

[22]On behalf of the Claimant, it is contended that the Employment Tribunal, in a fact-sensitive area, concluded as to the motivation of the Respondent in a way which was permissible in the light of the evidence. The Employment Tribunal had made a firm finding as to causation based upon the correct application of the statute. Alternatively, if the Tribunal had wrongly focused upon Dr Issler's reasoning and the correct focus was upon what the Respondent did in 2006, then it was clear that the Trust did know the Claimant had done a protected act. The legal principles

[23]The legal principles in a claim of victimisation emerge from the following authorities. In Nagarajan v London Regional Transport

[1999] IRLR 572

HL, Lord Nicholls said of discrimination and victimisation:

"41. For my part, it is not the logic of symmetry that requires the two provisions to be given parallel interpretations. It is rather a pragmatic consideration. Quite sensibly in s1(1)(a) cases the tribunal simply has to pose the question: why did the defendant treat the employee less favourably? They do not have to consider whether a defendant was consciously motivated in his unequal treatment of an employee. That is a straightforward way of carrying out its task in a s1(1)(a) case. Commonsense suggests that the tribunal should also perform its functions in a s2(1) case by asking the equally straightforward question: did the defendant treat the employee less favourably because of his knowledge of a protected act? …."

[24]This was followed, again by Lord Nicholls, in Chief Constable of West Yorkshire Police v Khan

[2001] IRLR 830

in the following way, "50. The requirement that doing the protected act must have been the reason for the less favourable treatment is adequate to safeguard an employer who acted for a different and legitimate reason. On the other hand, it will rightly provide no defence for an employer who can only say that although his reason was indeed the doing of the protected act, it formed part of a larger class of acts to which he would have responded in the same way."

[25]Victimisation was again considered by the House of Lords in St Helens Borough Council v Derbyshire

[2007] UKHL 16

, and it is common ground between counsel before us that the three-stage approach adopted by Baroness Hale is correct for its application in our case, for she said this in relation to sex discrimination:

"36. … There are three relevant questions under the 1975 Act. First, did the employer discriminate against the woman in any of the ways prohibited by the Act? In this particular case, the alleged discrimination was by "subjecting her to any other detriment" (contrary to section 6(2)(b) of the 1975 Act). Secondly, in doing so, did the employer treat her "less favourably than . . . he treats or would treat other persons"? Thirdly, did he do so "by reason that" she had asserted or intended to assert her equal pay or discrimination claims or done any of the other protected acts set out in section 4(1) of the Act?"

The first two of those authorities were considered by the Employment Tribunal. Discussion and conclusions

[26]Applying the statements of the law given in the three authorities above, we prefer the arguments of the Respondent. Dealing with this first in the way it has been presented to us as a matter to do with the knowledge of Dr Issler, there is a disconnection between her and her knowledge. The Employment Tribunal bases the knowledge as at 22 July 2005 when Dr Issler wrote the email. This was a threat of leaving and, as the tribunal said, it hung over the Respondent. There is no mention of discrimination in her email, nor in her long letter to Dr Robson. The history of the relationship is replete with allegations of bullying and harassment with no trace of discrimination, race or religion. The first Dr Issler knew of the discrimination complaints, she told the tribunal, was on 3 August 2005 when she was officially notified. She expressed extreme surprise and distress at the allegation of discrimination, indicating her own minority background and the diversity of the health service and of her own department. Thus, she dates her knowledge of a discrimination claim from then.

[27]The Tribunal concluded that she knew of a complaint of discrimination. The evidence which Dr Issler gave points to a rumour of a grievance against her being raised by the Claimant. It is important to bear in mind that that contains no element of discrimination, let alone discrimination on the grounds of race and religion such as was held by the Tribunal in its supplementary reasons. Against a background of there being silence on this matter, despite the unhappy relationship in the department over ten years, this conclusion is surprising.

[28]The Tribunal held Dr Issler's threat to leave the department on 22 July 2005 as arising because she was criticised in the allegation of discrimination. In our judgment there is no primary evidence that Dr Issler knew of it. Of course, there is evidence that the Claimant had raised a grievance including race and religious discrimination. If it is necessary to understand Dr Issler's approach to this on 22 July 2005, there is no primary finding which would justify the inference which the tribunal draws that, as at 22 July 2005, Dr Issler knew that the Claimant had lodged a grievance in which there were complaints against her of race and religious discrimination. The date of knowledge for Nagarajan purposes is 3 August 2005.

[29]For the Employment Tribunal this was important: it is the sole basis upon which it continues the chain of causation up to 2006. The Respondent had before it the Britton-Wood report indicating that no discrimination occurred. The Tribunal accepted the correctness of the Britton-Wood report in general and specifically in relation to the findings which it was required to make on the direct discrimination claims. Mr Burgher is correct when he says if you take away the involvement of Dr Issler by her threat to resign in her email, there would be no basis upon which it could be said that the reason for the Respondent's adoption of the Britton-Wood recommendation was that the Claimant had complained of discrimination in May 2005. Ms Britton-Wood herself carefully investigated this. So did Ms Storey who gave evidence that she was very concerned about the allegation of discrimination. That does not mean that she would or did take unlawful action against the person who made the allegation. The allegation was investigated by Ms Britton-Wood who correctly found nothing in it. In our judgment, that is the way Ms Storey approached it; she was reassured by Ms Britton-Wood's investigation, together with the recommendation.

[30]It follows that since the Tribunal pinned liability for victimisation upon the Respondent solely via the knowledge of Dr Issler, that decision cannot stand. In those circumstances, there is nothing further to say. Mr Thompson indicated that that may not be the correct test, for what is necessary is a decision on what the Respondent did, that is, the action taken by the Trust in May 2006 in failing to allow the Claimant to return.

[31]If it were necessary for us to decide this matter, we would agree with Mr Thompson that the statutory focus is upon what the Respondent did and not what Dr Issler did. If the Respondent's action on 26 May 2006 was significantly influenced by a tainted reaction of Dr Issler, then there is scope for a finding of victimisation, and that we see is a way of establishing causation. But since there was no basis for the finding that Dr Issler's action was preceded by knowledge of the protected act by, this point will disappear too.

[32]Besides, there is ample material to indicate what the reason was for the Respondent's action. The evidence of Ms Britton-Wood about her report and recommendation was approved by the Employment Tribunal. This indicated a history of tension in the department quite separate from and preceding the allegation of race and religious discrimination. Ms Storey and Dr Robson acted upon it. A Tribunal will generally be presented with two candidates for the treatment of the Claimant, a good and a bad reason. In this case, the Respondent put forward the reason she was not allowed back to work as set out in the Britton-Wood report. The Claimant's case was that it was to do with her having made a claim of race and religious discrimination which caused Dr Issler to make her threat on 22 July 2005.

[33]We would be reluctant to interfere with a finding on motivation by an Employment Tribunal, but in this case, there was no basis upon which it could be said that the Respondent had taken the step it did by reason that the Claimant had made an allegation of race and religious discrimination. The problems in the department were completely different from the new allegations of race and religion which the Claimant raised for the first time long after the dysfunction in the department had occurred to her. The Respondent's admitted less favourable treatment was not in any event by reason of the Claimant's grievance but of the need to resolve the personality and professional problems in this team. We consider the Employment Tribunal reached the correct conclusion in respect of the direct discrimination claims and should have read across from that into its victimisation findings.

[34]We allow the appeal and set aside the judgment of the Employment Tribunal in so far as it relates to victimisation and hold that the Respondent did not victimise the Claimant.