Purohit v Hospira UK Ltd & Anor (Practice and Procedure : Case Management) [2011] UKEAT 0229_11_2906

EAT
Purohit v Hospira UK Ltd & Anor (Practice and Procedure : Case Management)
[2011] UKEAT 0229_11_2906 · 2011-06-29
[1]This case is about sex and race discrimination, victimisation and sexual harassment, and Employment Tribunal procedure. It is the Judgment of the court to which all members appointed by statute for their diverse specialist experience have contributed. We will refer to the parties as the Claimant and the Respondents, Hospira UK Ltd, and Ms Marsh.[2]It is an appeal by the Claimant in those proceedings against a reserved judgment of an Employment Tribunal sitting at Watford over about ten days under the chairmanship of Employment Judge Bedeau. It was constituted of the Judge, Mrs K Boak and Mr G Phillips. The Reasons were given in 30 pages, following correction on 20 April 2011. The correction was simply as to the title of the Respondents. The Claimant was represented by her husband, who has some legal qualifications and operates, pending registration, under the title of Surush Legal Services. The Tribunal recognised that he was experienced and understood his way around the law, and so do we, having heard from him and read the extensive legal arguments in support of the case. The Respondent was represented by counsel. The Claimant made a number of claims of direct sex and race discrimination.[3]The 12 issues listed in paragraph 2 were fully ventilated. The Tribunal dismissed all of the claims against both Respondents. Ms Marsh, the Second Respondent, had a limited role. The Claimant appeals. Directions sending this case for a preliminary hearing were given by Underhill P following a direction he gave to the Employment Judge to respond to three grounds of appeal raised by the Claimant. There are two other appeals in this case which he decided had no prospect of success and which I will hear this afternoon under rule 3(10). The questions directed to the Employment Judge have been answered, and we are grateful to him. They have also been the subject of further submissions by Mr Purohit and by the Respondent, for the President directed that the Respondent should provide written submissions. The Respondent has appeared today through Ms Canavan, who was at the Employment Tribunal, but we have not invited her to play any part in these proceedings. The facts[4]A short description of the facts will probably not do justice to the complex relationships in this case, but we will do the best we can to keep it simple. The Tribunal introduced the parties and Mr Purohit in this way:
“7.1 The first respondent is a health care provider. It produces components for the National Health Service and health care industry. Its finance and administration offices are in Leamington Spa. It also has premises in Park Royal, South London and Aston. It is an international company with businesses in Spain, Germany, Austria, Italy and Portugal. 7.2 The claimant commenced employment with the respondent on 5 January 2004, as Technical Assistant. In October of that year she was appointed to the position of Production Technician with effect from 25 October 2004. From 1 August 2008, she was given the title of Releaser. On 5 November 2008, she was seconded to the position of Senior Checking Technician, Lead MTO4 equivalent to start from 1 January 2009. Her secondment came to an end on 30 April 2009. She then reverted to her releasing role. Her place of work was at the first respondent’s Park Royal premises North West London. Her husband was also employed by the first respondent until his dismissal for misconduct on 8 June 2009. His unfair dismissal and race discrimination complaints were dismissed by a different tribunal in September 2010. The claimant assisted him and gave evidence in support of the case. Her complaints before us were many and varied. We now take them in chronological order. 7.3 Ms Elaine Marsh was employed by the respondent as Senior Operational Technician in charge of the Compounding Team. The Compounding Team puts together the drugs into packages. There were 22 members of staff in the Compounding Team. We find that 16 out of the 22 during Ms Marsh’s employment with the first respondent, were Asian. Ms Marsh is white. She was managed by Ms Dimple Kavia, who is Indian. The packages would be checked by those in the Releasing Team, including the claimant. The releasers were part of the Quality Team and reported to Mr Anton Joseph, Assistant Quality Manager, who in turn reported to Mr Gavin Nixon, Quality Manager.”
[5]During the course of her career at the Respondent she was in the presence of people who seemed to take lightly comments which are held to be either racist or sexist. The Respondent has in place a system for dealing with matters under its Dignity at Work Policy. The Tribunal, in the course of its chronological approach to the issues in the case, made findings and then conclusions. The Tribunal addressed itself to issues of law in seven pages, and focussed upon the statutes themselves that is, sections 1(1), 4(2), 3(4), and the burden of proof under section 54A of the Race Relations Act 1976 and the corresponding sections and burden of proof under the Sex Discrimination Act 1975 . The Tribunal directed itself in accordance with harassment under section 3A and victimisation under section 2 of the Race Relations Act. It also considered the relevant authorities.[6]The Claimant was not accepted for the most part as a reliable witness of the events that had occurred, and particularly in respect of a things to do list , which she said she kept contemporaneously but which the Tribunal found she did not.[7]The Tribunal first considered the complaint against Ms Marsh about a remark said to have been made by her. It was not. That is a finding that was open to it: there was competing evidence, it accepted Ms Marsh’s case, and rejected the Claimant’s. It did not need to consider the matter any further in relation to any of the statutes, since the primary basis of the Claimant’s case had not been made out. So the Tribunal was entitled to find that the remark attributed to Ms Marsh was not made.[8]The rest of the case dealt with a series of allegations against a number of the employees of the Respondent, and in respect of each one the Tribunal made findings dismissing the allegation either because the remark was not made or in its context did not constitute discrimination of the kind alleged by the Claimant. The Tribunal took an analytic approach to the list of issues and answered each one against the Claimant. On each, the finding by the Tribunal was one that it was entitled to come to.[9]It is fair to say that the Claimant made some progress in the allegations which she made. First, a disgraceful text sent by Mr Browne’s mobile phone on 15 May 2010 was found to have been sent by a friend at his cricket club, who sent it to 15 contacts including 3 employees, one of whom was the Claimant. It was in very bad taste and it was explicitly sexual; it caused offence to the Claimant. The matter was fully investigated, no fault was found at the feet of Mr Browne, and he apologised to the Claimant for what his friend had done. The matter was fully developed through the Respondent’s policy.[10]As to Mr Browne, the Claimant criticised the comparative treatment of him and another employee, Mr Pham, and that Mr Browne had, as it were, been let off. The Tribunal upheld the Respondent’s case that he was treated differently because he did not know of the text until it had been sent. The failure to suspend Mr Browne, the Tribunal found, was based upon its findings of fact about who did what at the cricket club.[11]A remark was made by Mr Browne when asked what he had done over the weekend; he said he had bought a cat. The Claimant contended that that was discrimination on the grounds of sex. The Tribunal found that this had no reference to sex or the female sex, and was not a comment of a sexual nature; it dismissed that allegation.[12]The Claimant complained of a remark about wearing a shirt and a lab coat. The Tribunal held that there was simply a suggestion regarding the heat, and it was nothing to do with the Claimant as a woman not being able to take off her shirt without being embarrassed. The Tribunal decided that the statement was directed at everyone and it was about a discussion between two workmates.[13]An allegation was made about someone singing a crude song. The Tribunal found the song was not sung; that was a matter of fact.[14]The Claimant contended that her work colleagues were in the habit of asking questions about whether she had problems. The Tribunal, having made findings of fact, found that questions put to the Claimant were wholly innocent, unrelated to her sex or race, and dismissed the claim.[15]A substantive issue arose about whether Mr Browne was directed to work differently in a different place from the Claimant. The Tribunal heard evidence, to which we will turn in a moment, and decided that they were not working together.[16]The Claimant contended that, from the sending of the text until 30 June 2010, she was not contacted about her welfare, but the Tribunal made findings of fact that she was so contacted on 17 May, 21 May and 4 June 2010, and twice on 30 June 2010. It dismissed that case.[17]A comment was made by Mr Pham:
“be careful that the contract is given to Indians; you cannot trust Indians.”
The Tribunal found that this was an overtly racist comment. The issue before it arose under section 32(3) of the Race Relations Act, which was the statutory defence pleaded by the Respondent that it had in place a policy known to staff against harassment, it was to do with respect. Once the matter was made known to the management, a disciplinary hearing was conducted immediately against Mr Pham and he was put under some disciplinary action. The Tribunal upheld the Respondent’s case that it had taken all reasonably practicable steps to prevent Mr Pham from behaving in the way he did by the Dignity at Work Policy and the Respect in the Workplace training. The defence was made out.[18]As to managers spending more time with Mr Browne discussing matters with him and less with the Claimant, the Employment Tribunal found that the reference was made to only one discussion, and that did not constitute the claim. The procedural matters[19]The procedural matters which caused questions to be asked of the Employment Judge are three allegations in the Notice of Appeal. The first relates to what happened when the case opened, on Friday, 18 February 2011. One of the lay members, Mr Phillips, who is described as “the employee member” by the Employment Judge and “the employed member” by Mr Purohit, who is disabled, had an urgent medical appointment, and would be unable to sit that day but would be ready for the next day of what was to be an eight‑day hearing. The Judge asked whether there were any objections to a Tribunal of two. (This is permitted if consent is given: Employment Tribunals Act 1996 s 4.) He did not indicate that Mr Phillips had been hospitalised, but simply that he had an urgent appointment. The Judge reports in his answers to the President that Mr Purohit made no objections. The Judge noted that Mr Purohit provides business advice, Employment Tribunal advice and representation under the name of Surush Legal Services and if he had objected, he would have adjourned to start the case with a Tribunal of three the following day. The hearing went on. Directions were given as to various applications being consolidated.[20]The second matter was to do with the evidence and the strike out of a paragraph. The Judge indicated that the statements would be taken as read. The case stopped. On the next day the matter was raised about taking statements as read, and there the three‑person Tribunal considered again the application Mr Purohit made for witnesses to read their statements aloud and refused it.[21]The third procedural matter relates to what is said to be the finding of fact that Mr Browne did not work with the Claimant. The Judge has consulted his notes, and the finding which was made by the Employment Tribunal in paragraph 7.42 is adhered to, this time with additional comments. The Employment Judge rejected the allegation against the Tribunal that there was bias against the Claimant. We normally consider self‑serving that kind of assertion, but it is a necessary and human response. It is to be given some weight in the light of what the Judge says about it. The Tribunal had to consider 12 complaints and deliberate over 2 days before reaching conclusions. The Tribunal was satisfied that Mr Browne was transferred to another department until he left the company in September 2010, and from 15 June 2010 the two did not work together; that was a finding of fact open to it.[22]The fourth procedural issue relates to cross‑examination of the Claimant by the Respondent’s counsel on 24 February 2011, the statement having been taken as read; interruptions were made by Mr Purohit. The Tribunal found proper questions were asked by the Respondent’s counsel, and the Claimant was clear and lucid in her responses; she showed no obvious signs of distress. At 3.30pm Mr Purohit apologised to the Tribunal for his interventions, as he said he wanted to relieve the Claimant from stress. The Tribunal did not sit the next day.[23]On Monday 28 February 2011 the Claimant did not attend. Mr Purohit handed to the Tribunal a letter from her doctor. The conclusion is this:
“Under these circumstances she feels that it has become very difficult for her to attend court tomorrow. I would appreciate if another date can be arranged after four weeks.”
Mr Purohit applied for an adjournment; he said his wife was suffering from stress as a result of the cross‑examination. This took the Tribunal by surprise, as at the time of the cross‑examination she showed no obvious distress at the questions put to her.[24]A possible solution was advanced by Mr Purohit that questions from counsel should be put in writing and answered in writing; the Tribunal said that that would not be fair, and in any event the counsel’s cross‑examination would be for only a short period of time. The Tribunal decided that it would not accede to the application on medical grounds. It said that this material was insufficient to conclude that she was unable to participate in the proceedings, but reflected only her own view. She was ordered to attend at 2.00pm and the hearing was adjourned until then.[25]At 2.00pm she became incoherent, and the Judge elicited from her that she was taking sleeping tablets. When he asked her if she could delay until after her evidence, she said she could, so the Tribunal adjourned the case until the following day, and if she remained unwell there would be submissions. The following morning the Judge asked her how she was feeling; she replied she was feeling much better than the previous day, as she had only taken half a sleeping tablet. He reminded her that if she needed to take a break she should only ask. She gave evidence in the same manner with no obvious signs of distress.[26]A further matter referred to by the President was that the Tribunal changed its mind. The Judge has reported that the Tribunal met in private on 11 March 2011 to have a discussion on the case, and decided unanimously to dismiss the claims. The Judgment was dictated and sent off for typing. It was signed on 4 April 2011 and instructions were given for it to be promulgated. During this time, apparently, staff at Watford were making arrangements for a reconvened hearing on remedy and case management on other matters. From that Mr Purohit formed the view that it was to deal with what would on this hypothesis then be a successful claim. The Judge is categoric in his replies to the President. On the basis that the decision was made by the three members when they met, and signed by the Judge on 4 April 2011, it cannot, he says, have been the case that a decision was made in the Claimant’s favour that would lead to a remedy hearing. The submissions[27]Very substantial arguments, at least in length, have been raised before us; 26 pages of a skeleton argument have been advanced by Mr Purohit. The body of the skeleton deals with legal submissions. Some of these are simple statements of the law, and, with respect, they do not say why the Employment Tribunal, having given itself a correct direction, did not apply that. He makes contentions, for example, that the Tribunal refused to make an inference, or that it did not consider the burden of proof. We reject these allegations on the basis simply of looking at the Tribunal’s Judgment; it did direct itself in accordance with those matters, and all of the issues in the burden of proof under Igen Ltd v Wong [2005] EWCA Civ 142 .[28]The Respondent’s submissions focus on the procedural issues, and generally make the point that most of the rest of the appeal is based upon allegations of perversity. We will deal with them as we discuss the appeal below. Discussion and conclusions[29]We will first deal with the procedural matters. The first is whether the two‑person Tribunal was right to strike out part of the Claimant’s witness statement. This is the Judge’s answer to paragraph 7.16 of the Notice of Appeal. In our judgment, the Employment Tribunal had power to do that, since it related to a without prejudice discussion between the Claimant, Mr Purohit and the Respondent’s counsel about another case, and the decision was that this was not to be raised in the proceedings.[30]That is a matter of case management, relevance and so on; it was taken by the Judge with Mrs Boak present. As the Respondent points out, whatever objection there may be to the then constitution of the Tribunal, this was a decision within the Judge’s case management discretion, and was one that he was entitled to make. It is also correct, in our judgment, for it was to do with an irrelevant matter.[31]We take a slightly different approach, however. It is plain that informed consent was given by Mr Purohit to matters being dealt with by a two‑person Tribunal at various stages. The stages were very short: there was that striking out of the paragraph, and there was the issue to do with the reading of the statements. The Tribunal is entitled to consider evidence to be taken as read (see Mehta v Child Poverty Agency [2011] IRLR 305 ), and the decision made by the Judge with Mrs Boak was one that he was entitled to make. However, if that was wrong procedurally, the matter was renewed the following day by Mr Purohit, and the three‑person Tribunal ruled against him. It is a matter of case management entirely open to it, applying the law in Mehta ; no error has occurred. Indeed, it would seem to be in the Claimant’s favour, since she was obviously distressed at various stages in the case, and it is usually a great relief for a witness to know that all their evidence in written form has already gone in.[32]The third matter relates to the contentions about Mr Browne and his working with the Claimant, and in the light of both the original finding by the Tribunal and the additional comments by the Judge it cannot be said to be perverse; the Tribunal made its decision on the evidence.[33]The next procedural issue was to do with the health of the Claimant on 28 February 2011. The Tribunal was entitled to take the view that the hearing should not be adjourned for four weeks, following Teinaz v London Borough of Wandsworth [2002] ICR 1471 . It is correct, as the Judge says, that the doctor’s letter does not indicate that the Claimant should not take part in the proceedings; it was open to the Tribunal to decide this. When the Claimant became affected by sleeping tablets after lunch, the Tribunal properly adjourned and came back the next day; on that day she indicated no discomfort. We see no error of law in that either.[34]Finally, as to the suggestion that the Tribunal stood on its head, this cannot survive the further comments of the Judge. It is plain the Tribunal made its decision long before, and providentially set up the 11 April 2011 hearing should there be need for a remedy hearing, which there was not. This allegation is misconceived.[35]We then turn to the substantial allegations in this case. With respect, many of these are about perversity, and none of them reaches the high threshold that it is necessary for a successful Appellant to surmount. In our judgment, the Employment Tribunal addressed each of the issues it was required to consider. It made findings against her, some of which were based upon her unsatisfactory evidence or her appreciation of the facts. It has dealt in the methodical way we have looked at it above in respect of each of the matters, and has come to conclusions having directed itself correctly. We broadly accept the submission of counsel for the Respondent in writing that these issues do not constitute errors of law, and none has been demonstrated to us by Mr Purohit in his careful address to us. The appeal is dismissed.