MR D BARLOW v MR P STONE [2012] UKEAT 0049_12_0106

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2012] UKEAT 0049_12_0106Case No Appeal No. UKEAT/0049/12Venue Manchester Civil Justice Centre, 1 Bridge Street West, Manchester, M60 9DJ
Between
MR D BARLOWAPPELLANTMR P STONERESPONDENT
Before
His Honour Judge David Richardson Baroness Drake of Shene Mr T MottureDate 1 June 2012
[1]APPEARANCES For the Appellant MR PAUL WILSON (of Counsel) Instructed by: Howells LLP 15-17 Bridge Street Sheffield S3 8NL For the Respondent MR BERTRAND STERN-GILLET (Representative) Peninsula Business Services Ltd The Peninsula 2 Cheetham Hill Road Manchester M4 4FB SUMMARY DISABILITY DISCRIMINATION – Aiding and abetting The Tribunal erred in concluding that it had no jurisdiction to consider a claim of victimisation brought by an employee against a fellow employee under Part II of the Disability Discrimination Act 1995 . In the circumstances it had: see section 17A(1)(b), section 57(1) and (2) and section 58(1) and (2) of the 1995 Act. HIS HONOUR JUDGE DAVID RICHARDSON This is an appeal by Mr David Barlow ("the Claimant") against a judgment of the Employment Tribunal sitting in Nottingham (Employment Judge Elgot presiding) dated 8 August 2011. By its judgment the Tribunal dismissed a complaint which the Claimant had brought against Mr Paul Stone ("the Respondent") alleging discrimination by way of victimisation under the provisions of the Disability Discrimination Act 1995 .[2]The Tribunal heard this complaint along with others which the Claimant had brought against Amber Valley Community Transport ("AVCT"), who employed both himself and the Respondent. It dismissed this complaint because, in its view, the allegations which the Claimant made did not come within its jurisdiction. The question on appeal is whether the Tribunal was correct. The claim[3]The Claimant's case was set out in particulars of claim prepared on his behalf by the Chesterfield Law Centre. We will summarise them for the purposes of the appeal; but it must be remembered that the truth of the allegations is yet to be tested.[4]The Claimant was employed by AVCT as a part time driver. On 19 December 2008 he presented a claim against AVCT alleging disability discrimination, including failure to make reasonable adjustments and victimisation. His complaints were principally directed against Mr Patrick Dawson, a director of AVCT.[5]The Respondent was a fellow employee of AVCT and a friend of Mr Dawson. In January 2009 he made a false complaint to the police alleging that the Claimant had verbally abused him, used threatening language and driven erratically. The complaint was wholly false.[6]The Claimant's case was that the Respondent and Mr Dawson colluded in the making of the complaint, motivated by malicious intent resulting from the fact that the Claimant had lodged an employment tribunal claim against Mr Dawson (by which the claim form appears to mean the claim against AVCT making allegations against Mr Dawson).[7]The claim form continued:
"9. The claimant contends that the allegations made to the police were wholly spurious and believes that Paul Stone and Patrick Dawson colluded over this, and that they were motivated by malicious intent resulting from the fact that the claimant had lodged an Employment Tribunal claim against Patrick Dawson. 10. The claimant contends that these false allegations amount to an act of unlawful discrimination contrary to the provisions of s55(1) DDA 1995 in that he was treated less favourably by being the subject of a false allegation to the police, for reason that he had brought Employment Tribunal proceedings against Amber Valley Community Transport Ltd under the DDA 1995. 11. The claimant contends that Paul Stone and his employers are jointly liable for this act of victimisation. 12. The claimant intends to present a further claim for victimisation against Amber Valley Community Transport after he has followed the grievance procedure, and will seek to have these two claims consolidated under one action."
[8]In fact no claim against AVCT relating to this issue was ever lodged. The Tribunal's reasons[9]The Tribunal noted that no claim had been lodged against AVCT relating to this issue. The Tribunal held – correctly – that a claim for victimisation must be brought within the scope of part II of the 1995 Act, which concerns unlawful discrimination in the employment field. The Tribunal said:
"The Claimant does not ... in any way allege that Mr Stone has committed any unlawful discrimination against him under any other provision of the 1995 Act and in particular with reference to section 4. Indeed how could he make such an allegation because Mr Stone was not his employer or potential employer?"
The appeal[10]On behalf of the Claimant Mr Paul Wilson submits that the Tribunal left out of account sections 57(1) and (2) and 58(1) and (2) of the 1995 Act. He submits that once these provisions are taken into account it can be seen that the Claimant had a viable claim against the Respondent. We agree.[11]The Employment Tribunal's jurisdiction to hear claims under the Disability Discrimination Act 1995 (now repealed and replaced by the Equality Act 2010 ) derived from section 17A(1) which provided:
"(1) A complaint by any person that another person— (a) has discriminated against him [, or subjected him to harassment,] in a way which is unlawful under this Part, or (b) is, by virtue of section 57 or 58, to be treated as having [done so], may be presented to an [employment tribunal]."
[12]The reference to "this Part" is a reference to Part II, which concerns unlawful discrimination in the employment field.[13]By virtue of section 4(2)(d), which is a provision within Part II, it is unlawful for an employer to discriminate against a disabled person whom he employs by subjecting him to any detriment.[14]By virtue of section 55 victimisation is treated as a form of discrimination for the purposes of Part II. It is not necessary for the purposes of this judgment to set out the definition of victimisation in full. Suffice it to say that a person "A" victimises a person "B" if he treats him less favourably than he treats or would treat other persons whose circumstances are the same as B's because B has brought proceedings against A or any other person under the Act.[15]By virtue of section 58(1) anything done by an employee in the course of his employment is treated for the purposes of the Act as also done by the employer, whether or not it was done with the employer's knowledge or consent.[16]It follows from these provisions that the allegations in the claim form would amount to a viable claim of unlawful discrimination against AVCT. It would, of course, have to be established that the Respondent or Mr Dawson or both were acting in the course of employment with AVCT if AVCT were to be liable; but that would be a matter for evidence. Indeed we think, if we read the Tribunal's reasoning correctly, that it was prepared to accept that the allegations in the claim form would amount to a viable claim against AVCT.[17]The Tribunal's difficulty was in seeing how the claim could be put against the Respondent, who was a fellow employee, not an employer who could be liable under section 4(2)(d).[18]The answer lies in section 57(1) and (2):
"57 Aiding unlawful acts (1) A person who knowingly aids another person to do [an unlawful act] is to be treated for the purposes of this Act as himself doing the same kind of unlawful act. (2) For the purposes of subsection (1), an employee or agent for whose act the employer or principal is liable under section 58 (or would be so liable but for section 58(5)) shall be taken to have aided the employer or principal to do the act."
[19]As we have seen, section 17A(1)(b) specifically provides for the tribunal to have jurisdiction to hear a claim against a person who falls within section 57.[20]Mr Wilson cited L M Read v Tiverton District Council v Bull [1977] IRLR 202 (a case decided under cognate provisions of the Sex Discrimination Act 1975 ) in support of his case. We do not, however, think that any citation of authority is required. Once section 57 is taken into account it is plain that there was a viable claim against the Respondent.[21]In his skeleton argument Mr Stern-Gillet, who appears for the Respondent, submitted that it was necessary for a claim to be brought against AVCT before the Respondent could also be made liable. While it had plainly been the intention to bring a claim against AVCT at the time when the claim form was drafted, we see no warrant in the wording of the 1995 Act for holding that it is essential to bring such a claim. Section 17A(1)(b) lays down no such requirement.[22]He further submitted that the point about section 57 was not pleaded; and that it was not argued below (where the Claimant represented himself). In our judgment the matter was sufficiently pleaded. The reference in the particulars of claim to the Respondent and his employers being "jointly liable for this act of victimisation" can only be a reference to section 57. The matter was in our judgment sufficiently raised by the reference in the particulars of claim.[23]Finally Mr Stern-Gillet submitted that the protected act which is alleged in the claim form, namely a claim against Mr Dawson, has never taken place. This was not the ground on which the Employment Tribunal dismissed the claim; and in any event we think the claim form clearly means to allude to the claim against AVCT. The particulars of claim specifically said that the complaints in it were principally directed at Mr Dawson.[24]Mr Stern-Gillet in brief submissions before us today did not withdraw these arguments, but did not substantially add to them.[25]For these reasons the appeal will be allowed and the matter remitted to the same Employment Tribunal for further case management and then for hearing.