Ministry Of Defence v P and Q (Victimisation Discrimination) [2011] UKEAT 0104_11_2705

EAT
Ministry Of Defence v P and Q (Victimisation Discrimination)
[2011] UKEAT 0104_11_2705 · 2011-09-13
[1]This is an appeal against a decision of Employment Judge Sigsworth sent to the parties on 27 January this year. Both in the Tribunal and on this appeal orders have been made pursuant to, respectively, rule 54 of the Employment Tribunal Rules of Procedure and rule 30A of the Employment Appeal Tribunal Rules 1993 (as amended) providing for the anonymisation of the parties and for the hearings to proceed in private. The Appellant, to which I will refer as “the Ministry”, has been represented by Mr. Adam Tolley of counsel: his careful skeleton argument was most helpful to me in reading into the case. The Claimants, who are the Respondents to this appeal, have been represented by Mr. John Mackenzie, who is formally described in the papers before me as an employment law consultant but who is a solicitor by qualification and has substantial experience in discrimination law.[2]In order to understand the order appealed against, it is necessary to give some background about the claims and the procedural history.[3]P was in 2001 a Captain in the Territorial Army. In May 2002 court-martial proceedings were instigated against her: the substance of the charge was that she had left her personal weapon loaded in the armoury when away on leave. Q was a Lieutenant-Colonel in the Regular Army. He acted as P’s Defending Officer in the court-martial. The proceedings were stayed as an abuse of process, and in November 2002 P submitted a complaint under the redress procedure provided for in the Army Act 1955 . Q acted as her Assisting Officer in that respect. In March 2005 P submitted a second complaint, concerning an alleged failure to act on her first complaint. An Army Board of Inquiry sat to consider both complaints in October 2009. Its findings were issued in February 2010. Both P’s complaints were rejected. In the meantime, P had resigned as an officer in the Territorial Army. Q retired from the Army in May 2010.[4]On 24 March 2010 P presented a claim against the Ministry (2201550/2010) in the Employment Tribunal. The “box” ticked was sex discrimination. The pleaded details alleged “a sustained campaign of sex discrimination amounting to an informal policy of sex discrimination”. The particulars consisted of a complaint that the original charge was deliberately false and that at each stage of the subsequent sequence of events the authorities deliberately acted unfairly against her in various ways, which are identified in fairly general terms. There was no claim of victimisation.[5]On 20 April 2010 Q also presented a claim in the Employment Tribunal (2202074/2010) claiming for sex discrimination. The essence of his claim was that, as alleged at para. 6 of his pleading:
“ Between 2002 and the date of this claim the Claimant has been the victim of a sustained campaign of discrimination by the military authorities because the Claimant acted as P’s Assisting Officer and Unit Defending Officer. The campaign against the Claimant constitutes associated [ sic ] sex discrimination.”
He claimed that his career had been damaged in consequence. The particulars of the “campaign” were, as in the case of P’s claim, pleaded at a fairly high level of generality. Again, there was no claim of victimisation.[6]On 23 April 2010 Mr Mackenzie wrote to the Tribunal applying for permission to amend both claims in order to add a complaint of victimisation. He made it clear that the facts relied on would remain as originally pleaded.[7]On 22 June 2010 Q presented a further claim (2203148/2010). This was to a considerable extent repetitious of his first claim, though it adds some limited new material. However, it does incorporate an explicit claim of victimisation.[8]A case management discussion was held in all three claims on 22 July 2010. The Ministry sought a pre-hearing review: I need not explain the proposed issues because things moved on subsequently. Employment Judge Potter decided that the appropriate first step was for the claims, including the victimisation claims sought to be introduced by amendment, to be more fully particularised and she so ordered.[9]Particulars were duly served by the Claimants in accordance with Judge Potter’s order on 17 August. The Ministry contended that they were seriously defective. I should mention two of its complaints in particular. The first is that the allegations of discrimination were made against unidentified individuals, referred to simply as “the army authorities”. The second is that the particulars were incapable of supporting a claim of victimisation because none of the alleged protected acts was (to put it broadly) referable to a complaint of sex discrimination: I explain the point more precisely below.[10]There was a further case management discussion on 23 September 2010. At the hearing Mr Mackenzie lodged further particulars of the protected acts on which the Claimants relied (though not in relation to any other aspect of the case). Judge Potter decided that the right course was as follows:(1) the Ministry should disclose its relevant documents, as already directed, by 23 October;(2) with the benefit of any further information made available from that disclosure, the Claimants should by 7 November serve any further Particulars that they saw fit in order to address the deficiencies alleged by the Ministry;(3) there should then be a pre-hearing review, which would determine (a) whether the victimisation claims (whether as proposed to be added, in P’s claim and Q’s first claim (“the first two claims”), or as actually pleaded, in Q’s second claim) had any reasonable prospect of success; (b) whether an order should be made in relation to the remaining claims, i.e. those of “primary” sex discrimination, pursuant to rule 20 (1), which permits a Judge (subject to certain immaterial qualifications) to require a claimant to pay a deposit of up to £500 as a condition of being allowed to proceed in relation to any matter on which the Judge considers that he or she has “little reasonable prospect of success”. As regards element (3), the Judge made clear that one of the grounds on which the Ministry would be entitled to rely in support of its overall case that the claims had little reasonable prospect of success was a contention that they were out of time; but she was not prepared to direct that the time point should be definitively determined at the pre-hearing review because she was concerned that this would be one of those cases where it was not possible fairly to determine the time issues in advance of hearing the evidence as to the substantive claim.[11]The Claimants decided not to inspect the documents disclosed by the Ministry and volunteered no further particulars of their claims. Mr. Mackenzie, unhelpfully, did not offer the Ministry any explanation at the time of his failure to inspect its documents. But he subsequently told the Judge, and repeated before me, that it appeared from the Ministry’s list that the disclosure did not include any documents that the Claimants had not already seen as part of the Board of Inquiry process and that there was therefore no point in inspection.[12]The pre-hearing review duly took place before Judge Sigsworth at London Central on 15 December 2010. The parties were represented as before me. There was an extensive bundle of documents before the Judge, including the two applications for redress of complaints, but no witness statements or oral evidence.[13]The Judge’s decision was:(a) that the victimisation claims were sufficiently arguable to be allowed to proceed, with the result that he gave permission to amend in the first two claims, but that they had little reasonable prospect of success and that accordingly a deposit order in the sum of £250 should be made with regard to them in the case of each Claimant;(b) that no deposit order should be made in relation to the remainder of the claims. The Ministry appeals against both elements in the decision. The Claimants have not cross-appealed against the deposit order in relation to the victimisation claims.[14]I take in turn the two elements of the Judge’s decision which are in issue. VICTIMISATION[15]For the purpose of the Claimants’ victimisation claims it was necessary for them to establish that the acts complained of were done (at least partly) because they had done an act of one of the kinds specified in section 4 (1) of the Sex Discrimination 1975 – in the jargon, a “protected act”. The protected acts identified by Mr. Mackenzie at the case management discussion on 23 September 2010 were as follows:
“ Particulars of the alleged protected acts In relation to P: (1) P contesting the charges that arose in March 2002. (2) P submitting and pursuing her redress of complaint submitted in November 2002. (3) P submitting and pursuing her redress of complaint submitted in March 2005. In relation to Q: (4) Q assisting and advising P in relation to the charges that arose in March 2002. (5) Q assisting and advising P in her grievance submitted in November 2002. (6) Q assisting and advising P in her grievance submitted March 2005.”
It was the Claimants’ case that those acts fell within either or both of heads (c) and (d) under section 4 (1), which apply where (so far as material): “... the person victimised has: ... (c) ... done anything under or by reference to this Act ... (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 ...”. (I should record for completeness that Mr. Mackenzie’s skeleton argument appeared to rely only on head (c); but he confirmed at the hearing that that was a slip.)[16]The Ministry’s contention before the Judge was that none of the matters pleaded was capable of falling under head (c) or head (d) of section 4 (1). The essential point was that neither by (or in the course of) contesting the charges against her nor by submitting and pursuing her two complaints had P said anything, either explicitly or by implication, to the effect that her treatment was on the grounds of her sex (or indeed that it was indirectly discriminatory). Indeed she had in her evidence to the Board of Inquiry expressly disavowed any such allegation. (She had in a letter following the publication of the Board’s findings made, for the first time, a generalised allegation of sex discrimination; but that was not relied on as a protected act and was in any event too late to have caused or contributed to the detriments relied on.) Thus she had neither done anything “under” or “by reference to” the 1975 Act nor made any allegation of a breach of the Act. The same necessarily went for Q, since the protected acts on which he relied consisted simply of assisting and advising P in the relevant respects.

The Judge addressed the Ministry’s contention at para. 9 of the Reasons, as follows:

“I accept the Respondent’s argument that the Claimants have to establish the existence of a protected act first of all, then after that less favourable treatment by reason of that protected act. This imports the requirement of knowledge on the part of the alleged discriminator, or at least suspicion of or about the protected act. Therefore there has to be something done by reference to the Sec Discrimination Act, or an allegation made that an act has been committed that would amount to a contravention of the Act, followed by detriment or less favourable treatment. The complaint/allegation must be made, however obliquely, at the time and before the detriment occurs. It is difficult to see where such complaint has been made, on the documentation that I have been shown. However, I am not prepared to strike out the existing claim or disallow the amendment to add such a claim, on the basis of no reasonable prospect of success. On hearing evidence, the Tribunal may find that there is something emerging from the facts which gives rise to a protected act. Nevertheless, currently, I view that there is little reasonable prospect of success on the basis of the documentation provided. Therefore, I conclude that a deposit order is appropriate, and I make such order in the sum of £250 in respect of each Claimant.”
[18]Mr. Tolley submitted that that reasoning was flawed. The Judge in effect acknowledged that P had failed to demonstrate where or how in resisting the charges or pursuing redress she had made any allegation of sex discrimination: “it is difficult to see” is merely a polite way of saying “I cannot see”, and in fact in an earlier paragraph of the Reasons (para. 4) the Judge had found unequivocally that, as the Ministry contended, there was no reference in either of the complaints to any allegation of sex discrimination and that P had said that that was a conscious decision on her part. Yet he had refused to strike out the claims, on the basis that something might emerge when evidence came to be given. Mr Tolley submitted that if P had in fact said or done anything that fell within the terms of section 4 (1), that was inevitably something that she should be able to identify and assert now, from her own knowledge: it must be appreciated that whether an act is protected under heads (c) or (d) is a matter of the objective effect of what the claimant has said or done and does not depend on the conduct or perception of the employer. Thus, while evidence might be necessary if the Claimants’ assertion were disputed, it was not necessary for the purpose of their pleading an arguable case. Mr. Tolley also referred me to well-known dicta to the effect that a case should not be allowed to proceed on the basis of Micawberism (that “something may turn up”): these were most recently applied, in a broadly analogous context, in ABN Amro Management Services Ltd v Hogben ( UKEAT/0266/09). Whether a protected act had been identified was a point of pure law, to which there was only one answer, and the Judge should have resolved the issue in the Ministry’s favour.[19]In my view that submission is well-founded. Mr. Mackenzie’s submissions on this point in his skeleton argument were very brief and, so far as concerns the present point, went no further than relying on the reasoning of the Judge and making the point that P had made a deliberate choice not to make any allegations of sex discrimination only because she thought that to do so would prejudice her prospect of obtaining redress. As to that, P’s motive for not raising any such allegation is immaterial: what matters is the fact that she did not. However, in his oral submissions Mr. Mackenzie raised two more substantial arguments. Strictly speaking, they should have been raised in a Respondent’s Answer, since they do not form part of the Judge’s reasoning; but Mr. Tolley sensibly took no point on that.[20]First, Mr. Mckenzie contended that, if it were in due course proved that the initial court-martial proceedings against P, or the subsequent conduct of which she complained, constituted sex discrimination, surely resisting those proceedings and complaining of that conduct would be referable to the 1975 Act, so as to fall under head (c). That is, with respect, a misreading of the provision. The section is concerned with whether the claimant is referring to or asserting rights under the Act; and the fact that the putative defendant may in fact have infringed his or her rights under the Act is immaterial save to the extent that the claimant is asserting such rights. That is the correct reading as a matter of ordinary English, but it is also accords with the statutory purpose: the mischief against which the victimisation provisions are directed is the claimant being subjected to a detriment because he or she has asserted the right not to be discriminated against. To extend their reach to a case where the employee has taken some step in response to what may in fact be discriminatory conduct, but where he or she has never raised any question of discrimination, would go beyond the statutory purpose. (I should add for completeness that I was referred to several authorities on these provisions, but none were of direct assistance: in Aziz v Trinity Street Taxis Ltd [1988] ICR 534 the Court of Appeal makes it clear that the “reference” required under head (c) could be of a fairly general nature, but that is not the present issue.)[21]Secondly, he relied, at least as regards the bringing of the redress proceedings, on the bracketed words in head (d) – “whether or not the allegation so states”. He submitted that the effect of those words was that it was irrelevant that the Claimants had never made any explicit claim of sex discrimination in the course of the earlier proceedings. But, again, that is not the effect of the words in question. A case will not fall under head (d) unless the claimant has alleged an act “which would amount to a contravention of this Act”. Merely to allege some adverse conduct would not satisfy that requirement: it is necessary to allege the facts that establish that the conduct is unlawfully discriminatory. The bracketed words mean only that it is unnecessary to spell out that the act alleged constitutes unlawful discrimination. Thus, to take a straightforward example, to say “A should have got the job instead of B” is not an allegation that would fall under head (d) of the equivalent provisions of the Race Relations Act 1976 , even if A is black and B is white, but to say “B got the job instead of A because he was white and A was black” would be caught: the effect of the bracketed words is to confirm that it is unnecessary to say in terms “and differential treatment on the ground of colour is unlawful” (or, still less, “is unlawful under the 1976 Act”). The distinction is not in truth very different from that made in the previous paragraph. That is unsurprising, since all the heads under section 4 (1) do very similar jobs and share the same purpose, namely, as I have said above, to prevent employees (and others) being subjected to a detriment for asserting their (or others’) rights under the Act. (Head (d) would in fact cover most situations falling under the other heads, though not all.)[22]I accordingly allow the appeal on this ground. I hold that the claims of victimisation as advanced had no reasonable prospect of success. THE “PRIMARY” DISCRIMINATION CLAIMS[23]The basis on which Mr. Tolley argued that a deposit order should be made in relation to the “primary” discrimination claims was twofold –(a) that, despite being given every opportunity to do so, the Claimants had not produced any adequate particulars; and(b) that they faced formidable limitation difficulties. He advanced no submissions as to the substantive merits – not, as he made clear to me, because the Ministry conceded that the claims were in fact arguable but because a forensic decision had been taken not to focus on that aspect for the purpose of the application. The relevant part of his submissions to

the Judge read as follows:

“ P’s discrimination claim (2) The allegations of sex discrimination by P are sorely lacking in particularity. Despite having been given numerous opportunities over a period of nearly five months (since the first CMD in July), P is either unwilling or unable to provide adequate particulars of her case. Serious factual allegations are made, but without the necessary detail to back them up. Many of the allegations are directed against the nebulous “army authorities”, with no attempt to identify any individual(s) said to be responsible for the conduct of which complaint is made. (3) The allegations stretch back into the distant past, taking up a history from as long ago as 2001. It is relevant to take into account the long delay in making any complaint of sex discrimination. (4) There are large gaps in the alleged “continuity” of the conduct complained of, with no relevant events identified between 2002 and 2005, or between 2005 and 2009. (5) There is nothing to link the allegations of discrimination which are undoubtedly in time, concerning the Board of Inquiry in October 2009 and its report in February 2010, with the earlier allegations concerning the court-martial and the redresses of complaint in 2002 and 2005. Q’s discrimination claim (6) All of the points made above, at (2)-(5), in respect of P’s claim, may also be made in relation to Q. (7) In addition, there is the further point in Q’s case that there is literally nothing in any of his allegations from which it would begin to be possible to draw an inference that he was less favourably treated because he was assisting a female officer, P, to resist the allegations or make complaints. In other words, there is no basis for the complaint that it was P’s gender, rather than any other factor, which led to the matters of which complaint is now made.”
[24]I should perhaps spell out what is being argued at points (3)-(5). Under the primary time limit prescribed by section 76 (1) (a) of the 1975 Act the Tribunal only had jurisdiction to entertain complaints about things done in the three months prior to the presentation by P and Q of their respective claims. On that basis P could complain of the outcome of the Board of Inquiry, which was only published about a month before she presented her claim; but the Tribunal only had jurisdiction over her earlier complaints, going back to 2002, if she could show either that they, with the outcome of the Inquiry, constituted “an act extending over a period” within the meaning of sub-section (6) of section 76 or if it was persuaded that it was just and equitable to extend time under sub-section (5). Mr Tolley’s point was that in view of the long breaks in the story identified in his point (4), it was highly unlikely that the Tribunal would be persuaded of either point. As for Q, the dates of some of the acts complained of can be ascertained from the particulars which he supplied pursuant to Judge Potter’s first order (see para. 9 above): others remain unparticularised, in the case of some at least perhaps because the acts complained of constitute omissions (though this does not mean that dates cannot be assigned to them – see the concluding part of section 76 (6)). But on any view many or most of the acts complained of precede the presentation of his (first) claim by more than three months, so that in principle he faces the same hurdles as P.[25]The Judge summarised Mr. Mackenzie’s response to those submissions at para. 6 of the Reasons. As to the lack of particularisation, he said:
“The Claimant had been given opportunities to particularise their case. However, I have heard reasons why they have not inspected the Respondent’s documents and such reasons seems logical, although one would have expected the Claimant to have notified the Respondent and the Tribunal of this. The documents for the board of enquiry are substantial and it will take time for the Claimants to go through them. I also accept that it is not always easy to identify the people who are said to be the ‘Army authorities’, because P’s grievances disappeared into the chain of command an P lost sight of them. As far as identification of information and evidence is concerned, it may be now that the Claimants have disclosure documents from the board of enquiry and that further information can be given about this.”
As regards the time point, he said:
“…the Claimants say there is good reason for delay in making allegations of sex discrimination because of the possible effect on P’s career. Further, that it was entirely reasonable for P to attempt to go through the Army procedure rather than come to an Employment Tribunal: that it was the Respondent that delayed the process and not the claimant; and that the evidence would determine whether there was a link between the events, and whether there is a continuing act. The Claimants argue that there is a good case for just and equitable extension of time.”
His conclusions on those submissions are given in para. 10 of the Reasons, which reads as follows:
“I conclude that the Respondent has not established that the claims have no or little prospect of success. From the allegations I have seen pleaded and the full evidence that may well be given at the hearing, I find that there is a sufficiently strong case to go forward, and without the encumbrance of a deposit order. Of course, it will be for the Tribunal hearing the merits case to decide whether the requirements of the burden of proof provisions are met. It is not appropriate, therefore to strike out the case or to make a deposit order. There have been procedural glitches, and the case may not yet be sufficiently well particularised. That situation can be remedied by rigorous case management so that the parties get themselves for the merits hearing.”
[26]Mr. Tolley submitted that the very short reasons given in para. 10 are quite inadequate to explain why his submissions as regards lack of particularisation and the time point were rejected. He pointed out that the second and third sentences (NB the reference to “the burden of proof provisions”) read as if the Judge thought that the issue concerned the prospects of success of the substantive claim; and although the Judge then goes on to say that the defects in the Claimants’ particulars may be capable of being remedied, that does not address the question of what those defects may show about the case – nor does he say anything at all about the time issue.[27]There is real force in those criticisms; but in the end, not without considerable hesitation, I do not think that I should allow the appeal on this point. I take the particularisation and the time points in turn.[28]As regards particularisation, it is necessary to read what the Judge says in para. 10 of the Reasons with the comments which he makes in the course of summarising the Claimants’ case in para. 6: see para. 25 above. It appears that he believed that the lack of particularisation did not necessarily reflect an inherent weakness in the claims and might, rather, be a product of the practical difficulties faced by the Claimants. Whether I agree with that assessment or not, it was the Judge’s job to make it and I should not interfere unless it can be said to be irrational. I do not believe that to be the case. I appreciate that the reasoning is very short, but that is not inappropriate in the context of a rule 20 application where broad-brush judgments are often inevitable.[29]In the case of the time point, the missing reasoning in para. 10 cannot be so easily supplied by reference to para. 6. Although the Judge does there set out the arguments that the Claimants would advance to show that their complaints were of an act extending over a period or in support of an extension under section 76 (5), he does not express any views about those arguments. However, the fact that he records the submissions about the issue makes it difficult to accept Mr. Tolley’s suggestion that he simply overlooked it when he came to consider his conclusion. In my view it is much more likely that this is a case of a failure of drafting. In fact, I think that it can reasonably be inferred that the Judge, albeit that he does not say so in terms, accepted the Claimants’ argument that there was a reasonable chance of the Tribunal at the eventual hearing extending time under section 76 (5). Once that point is reached, I cannot see any error of law in his conclusion. The question whether it is just and equitable to extend time is quintessentially one for the judgment of a tribunal having considered all the material circumstances, and I am not surprised that the Judge felt unable to say at this preliminary stage that there was little reasonable prospect of the Tribunal at the eventual full hearing deciding to exercise its discretion in favour of either of the Claimants (I put it that way because in principle the answer need not be the same for both). I accept that even if the Judge is to be taken as accepting Mr. Mackenzie’s arguments as set out at para. 6 of the Reasons that (borrowed) reasoning is very short; but I repeat that in a case of an application under rule 20, and in particular of a decision not to make an order, elaborate reasoning is not always necessary or indeed appropriate.[30]To avoid misunderstanding if this judgment is referred to subsequently, I should make three points:(1) I have focused on the possibility of an extension under section 76 (5) rather than on the “act extending over a period” route, because the former is the less susceptible to a preliminary view being taken. I can see that P in particular faces real difficulties in establishing “continuity” back to her initial complaints; but that would not matter if the Tribunal decides that it is just and equitable to extend time.(2) I am not myself to be taken as expressing any view on the Claimants’ prospects of success on the time issues – I have done no more than decide that the Judge was entitled to take the view that he did.(3) The decision of the Judge not to make a deposit order, and my upholding of that decision, is not dispositive of any costs issue that may arise subsequently. It only means that the provisions of rule 47 do not apply. CONCLUSION[31]The appeal in relation to the victimisation claim is allowed: I revoke the permission to amend given in 2201550/2010 and 2202074/2010 and strike out the allegations of victimisation in 2203148/2010. I dismiss the appeal against the refusal to make a deposit order.[32]I am bound to say that although, as I have said, I allowed the hearing to proceed in private under rule 30A I heard nothing, and certainly nothing appears in this judgment, which would appear to jeopardise national security in any way. I have, however, decided that I should continue the anonymisation which was applied in the Tribunal because it is possible that at the eventual hearing matters will emerge which will render it undesirable that the parties should previously have been named. But my decision at this interlocutory stage should not be taken as determining whether any, and if so what, directions should be made under rule 54 (2) in relation to the eventual substantive hearing or in the Tribunal’s Judgment and Reasons. The relevant principles are discussed in my judgment in AB v Secretary of State for Defence [2010] ICR 54 .[33]Finally, I should say that I regret the time taken to produce this judgment, which is primarily the result of the pressure of other work in this Tribunal, though it has been increased to a very limited extent by the need to comply with the procedure under rule 31A.