McIntosh v St Mark’s Primary School (Victimisation Discrimination : Detriment) [2014] UKEAT 0226_13_0302
EAT
McIntosh v St Mark’s Primary School (Victimisation Discrimination : Detriment)
[2014] UKEAT 0226_13_0302 · 2014-02-03
[30]‘ Although Lord Nicholls, following the structure of the statutory language, treated the question of whether the claimant has been treated less favourably than others as distinct from the question of the reason for that treatment, he subsequently pointed out in Shamoon v. Chief Constable of Royal Ulster Constabulary [2003] ICR 337 that those two questions – ‘the less favourable treatment question’ and ‘the reason why question’ – are ‘intertwined’ and ‘essentially a single question’... Lord Hope described the reason why question as ‘the primary question’. Elias P. in Ladele v. London Borough of Islington [2009] ICR 387 developed this point, describing the purpose of considering the hypothetical or actual treatment of comparators as essentially evidential, and indeed doubting the value of the exercise for that purpose in most cases – see at paras. 35-37 (p. 395). Other cases in this Tribunal have repeated these messages’.” It also referred to the case of Nagarajan v London Regional Transport [1999] ICR 177 and stated at paragraph 53, “Race may be the reason for action whether the Respondent realises it at the time or not.” 22. It has not been suggested by either party to this appeal that the Employment Tribunal erred in its self-direction on the law. Submissions For the Claimant 23. The submissions for the Claimant were foreshadowed by the skeleton argument on the rule 3(10) hearing. On suspension, it was argued that the decision to suspend the Claimant could not be for the reasons set out at paragraph 64-66 because those matters all occurred after 12 January 2010, i.e. when the decision to suspend was taken. Logically, the Claimant’s posture after her suspension could not have been a reason for her suspension. Moreover the ET’s findings of fact (paragraphs 16, 21 and 22) would only support the conclusion that the proximate cause of the Claimant’s suspension was her sending the e-mail attachment, PM1. Therefore the ET’s conclusions, at paragraph 65 to 66, must be perverse or, if not perverse, simply inadequately reasoned. The Claimant was left not knowing why the ET concluded that her suspension was in no sense whatever on the ground of victimisation. 24. As for the decision to subject the Claimant to disciplinary action, similarly the Claimant relies on the ET’s findings of fact at paragraphs 21-22 of the Reasons in challenging the conclusions as to the reason for this decision at paragraph 65-66. 25. More generally, the ET’s conclusions on the disciplinary process, including the suspension, could only be seen as finding that the Respondent was informed by the Claimant’s sending of the e-mail attachment. That was a protected act, and so tainted the Respondent’s decisions in this regard and any other conclusion would be perverse. For the Respondent 26. For the Respondent it was noted that the Claimant did not seek to challenge the applicability of the Tribunal’s conclusions to matters occurring after 12 February 2010 nor did the appeal raise any issue as to the ET’s application or understanding of the correct legal test and its general terms. The real issue was one of perversity. 27. The Respondent summarised the competing contentions arising on this appeal at paragraph 5 of its skeleton argument as follows: “In short, if the EAT finds that(a) the ET’s conclusions on the reasons for the relevant decisions are confined to the contents or paragraphs 65-66 of the Judgment and(b) the findings of fact indicate that the said reasons cannot logically have applied at the relevant time, it is accepted that there is a need for the Tribunal to further explain its conclusions on the relevant issue or for it to be reconsidered at a fresh hearing. For the avoidance of doubt, the Respondent does not accept that the ET’s conclusions on the reasons for the relevant decisions are limited to the said paragraphs or that the findings of fact did not permit the ET to conclude as it did.” 28. On the question of suspension, the Respondent observed that paragraph 65 explained the ET’s conclusion that disciplinary action, encompassing the suspension, was caused by a combination of factors related to, but separate from, the protected act. The Respondent accepted that the refusal to pursue the allegation of racism cannot have been a relevant factor regarding the decision to suspend, as the ET had found that the Claimant had not referred to race before (see paragraphs 4 and 10 of the Reasons). On the other hand, the Respondent contended that the ET had found the Claimant had previously failed or refused to actively pursue complaints of “discrimination” and this had influenced Mrs Standing’s response to the e-mail (see paragraph 17), as had the fact that the Reverend Coulson had previously taken the view that the Claimant should be making her complaints through the proper channels (see paragraph 9). Moreover the other factors relied on at paragraph 65 plainly did apply to the decision to suspend: for example, the fact that the Claimant was willing only to apologise for the sending of the email not its content (see paragraphs 16 and 22). Further, the factors at paragraph 66 were already apparent at the time of suspension: for example, the interaction on 12 January 2010 between the Claimant and Mrs Standing; and Reverend Coulson had also obtained a statement from Miss Majewska, which would have evidenced that interaction (see paragraphs 15 and 17) and this set the scene for the issues regarding intimidation and sensitivities of the small management team. This was also evidenced by the Tribunal’s conclusions on direct race discrimination at paragraph 67-68 and 69. 29. On the decision to discipline the Claimant, the Respondent submitted that the chronology was less helpful to the Claimant. By 12 February 2010, the Claimant had refused to apologise for the e-mail (see paragraph 22) and at paragraph 27 of the ET Judgment it was shown that the refusal to withdraw the relevant allegation was a relevant factor after 3 February 2010. Moreover, paragraphs 23-24 of the Tribunal’s Judgment show that, by 3 February 2010 at the latest, the Reverend Coulson was also influenced by the Claimant’s reactions with Miss Sampson and Miss Majewska. This was also apparent from the content of his investigation report (see paragraph 15). Further, by 12 February 2010, the Claimant had the opportunity to make a dignity at work complaint, so if that was a relevant factor (albeit that the Respondent contends paragraph 65 is in more general terms) then that was also permissible for the Tribunal to take into account. In any event (see paragraph 27 of the Judgment) none of the allegations made by the Reverend Coulson in his report relied on the mere fact that the Claimant had referred to racism in the PM1. Discussion and conclusions 30. The first issue for us was whether the Employment Tribunal’s reasoning was limited to paragraphs 65 and 66, and we observe that it is common ground that, on the Employment Tribunal’s own reasoning, one has to look at paragraph 66 as well as 65. 31. We do not ignore the fact that the ET specifically identified in paragraphs 65 and 66 the operative reasons in respect of the disciplinary action taken against the Claimant. On the other hand, we note that elsewhere the ET does not limit its consideration of an issue to the paragraph in its Judgment where it is first addressed. For instance, in identifying the protected act, the ET at paragraph 61 refers to the Claimant’s email of 11 January 2010, but then, at paragraph 64, when turning to the question of whether the act of detriment were on the ground of the protected act, the ET is more specific, observing that it was the use of the word “racist” that made the attachment a protected act, and that there were other parts of the document which would not be seen in the same way. 32. It is trite to say that a Judgment needs to be read in its entirety. That is perhaps particularly the case where an ET, under time and resource pressure, has to deal with factually and legally complex cases, often raising a plethora of issues. We certainly think that is true in the present case, where the ET was obviously addressing disciplinary issues in the round and sought to address what it found to be operative in terms of the Respondent’s thinking at various parts of its Judgment. We therefore see as relevant to the ET’s reasoning on these matters, other parts of the Judgment, such as paragraph 69, which address the Reverend Coulson’s thinking at the time. Having heard him give evidence, the Tribunal concluded: “Everything he said and did, and which caused the exaggeration and distortion which we have identified, was attributable to his view of the very serious consequences of the Claimant’s actions, as he saw them, in undermining the Headteacher. He honestly believed that there had been a breakdown in the relationship between Deputy and Headteacher which was irretrievable and which would be very seriously damaging to the school. That was the sum total of the considerations which influenced what he said and did.” 33. More specifically, however, paragraph 66 itself makes reference to the sensitivities within the small management team. It does not do so in a way limited to what was before the disciplinary panel. Indeed the use of the semi-colon in the paragraph makes it clear that the Employment Tribunal was expressing separate thoughts in this regard; referring to the evidence of intimidation before the disciplinary panels, and then, separately, to the sensitivities of a small management team. 34. That reference - the reference to the sensitivities of the small management team – was, in our view, referring back to the ET’s findings as to the background history; that is, to the Claimant’s earlier indiscretions regarding her relationship with the Headteacher, her raising of those issues with other members of the senior management team and other staff, and with the Reverend Coulson, and to the sensitivities that arose from that. 35. The Reverend Coulson had been in the school on the day before his decision to suspend to the Claimant. He had already obtained statements from the Headteacher and from Miss Majewska (see paragraph 18). What troubled them was apparent from the Reverend Coulson’s statement at his meeting with the Claimant and her trade union representative on 3 February and his subsequent investigation report. In particular, we note the Tribunal’s finding that he had raised the issue with the Claimant about the tensions at the school and the fact that he had the impression staff did not want to be left alone with the Claimant. Some of those points may have been derived from his post-suspension investigations, but it would be almost impossible to separate out all the elements of the investigation and we do not criticise the ET for not doing so. 36. Suffice it to say that we see findings of fact throughout the Tribunal’s decision that justify the conclusion at paragraph 66 that the sensitivities facing the small management team were the material reason for the suspension. 37. Reading the Judgment as a whole, we consider that there are sufficient reasons for the Claimant to be able to understand the Tribunal’s conclusion that the protected act was not the ground of her suspension. Moreover, taking into account the findings of fact made by the Employment Tribunal, we see no basis on which it could be contended that that conclusion was perverse. 38. To the extent that paragraph 65 has to be read as laying down factors relating to the suspension, we would equally not see that as perverse. True it is that, if the only reference was to the Claimant’s specific refusal to retract the “closet racist” comment in the e-mail, then that could not have been the reason for the suspension having become a running sore within one day. But the fact the Claimant had previously made allegations - unspecific, but relating to her relationship with the Headteacher - and had declined to use the proper channels to do so, could be seen as a relevant factor in the narrative. We consider that was all part of the background, based on the Employment Tribunal’s findings of fact, that explains paragraph 65 so far as the decision to suspend is concerned. 39. As for the decision to refer the matter into the disciplinary process, we think that the reasoning at paragraphs 65 and 66 is all the more obvious. 40. By 12 February 2010, the Claimant had refused to apologise for the e-mail (see paragraphs 22 and 27). Although we note that paragraph 27 is setting out what took place at the disciplinary hearing, it sets out the presentation of the management case by the Reverend Coulson and reflects his understanding at the time. That included, as set out at paragraph 27(2), that the undermining and demeaning behaviour had been exacerbated by the fact that the statements were not withdrawn either on the morning of 3 February or during the hearing before the disciplinary panel. He had obviously been influenced by the fact that the Claimant had not withdrawn the statements, and it is not plausible to read the Tribunal’s Judgment as suggesting he had only taken that view at some point during the disciplinary hearing itself. 41. Moreover paragraphs 23 and 24 of the ET’s Judgment show, by 3 February 2010 at the latest, the Reverend Coulson was also influenced by the Claimant’s interactions with Miss Sampson and Miss Majewska on 12 January 2010. That is also apparent from the content of his investigation report (see paragraph 15). 42. Furthermore, we accept the Respondent’s submission that by 12 February 2010 the Claimant had had an opportunity to utilise the correct procedures, such as the dignity at work policy, to make a complaint. That, too, could be a relevant factor, which the Employment Tribunal was entitled to take into account. 43. In dealing with the allegation of perversity, again we find that the Claimant does not meet the high threshold to justify such a ground of appeal. None of the allegations made by the Reverend Coulson in his report relied on the mere fact that the Claimant had referred to racism in PM1. We do not accept that any reference to the e-mail or its attachment necessarily included a reference to the “closet racist” remark. That was, as the Tribunal found it, a “throwaway” comment in a long document. 44. As the ET correctly set out, at paragraph 64, there were other aspects of the attachment that might have been objectionable, and the Tribunal was plainly saying, on our reading of its Reasons, that it was the pattern of the Claimant’s informing others of her poor relationship with the Headteacher, even if inadvertent, and the difficulties that that caused that was the reason for the action in question. 45. Reaching that conclusion, given its findings of fact on the history of this matter, was not perverse. Here, it seems to us, the ET was clear in its reasoning. It had in mind the suspension and the decision to refer the Claimant’s case into a disciplinary hearing and it saw that as part of the complete disciplinary process. It considered the reasoning that had led the Respondent to those decisions and was satisfied that this was not because of any protected act. To try to de-construct the reasoning further is, in our view, unfair to the Employment Tribunal and misses the overall picture to be derived from this Judgment. For those reasons we dismiss this appeal. 46. Having given our Judgment, an application was made to us for permission to appeal to the Court of Appeal. Such an appeal can only be made on a point of law. We do not consider that that has been demonstrated and we consider the application fails to engage with the entirety of our reasoning and the overall picture to be derived from the Tribunal’s Judgment. Moreover to have accepted, as the Claimant has done, the Tribunal’s findings in relation to the decision to dismiss and the refusal of her appeal, it is inconsistent to seek to challenge them as the application would appear to seek to do. The application in our view has no real prospect of success and there is no other compelling reason for this factual issue to take up the scarce and valuable resource of the Court of Appeal.