Horlorku v Liverpool City Council (Unfair Dismissal) [2015] UKEAT 0020_15_1405

EAT

Horlorku v Liverpool City Council (Unfair Dismissal)

[2015] UKEAT 0020_15_1405 · 2015-05-14

[31]“ … Their function is to hear the case the parties choose to put before them, make findings as to the facts and to decide the case in accordance with the law. … Of course an employment judge, like any other judge, must satisfy himself as to the law that he must apply to the instant case; and if he assesses that he has received insufficient help on it from those in front of him, he may well be required to do his own homework. But it is not his function to step into the factual and evidential arena.” 20. This view of an Employment Judge, as sitting not so much in Olympian detachment but more as an umpire between two rival cases, underlies the approach also of the Court of Appeal in the earlier case of Mensah v East Hertfordshire NHS Trust

[1998] IRLR 531

. Peter Gibson LJ was there considering a case in which an Employment Tribunal had determined the claim of a nurse and midwife, who alleged that she had been discriminated against when she had applied for vacancies in the maternity and neonatal units at one of the Respondent trust’s hospitals only to be told that there was nothing available. Later, when she discovered that a number of vacancies in both departments had recently been filled, she felt she had been discriminated against in what had been said to her in respect of both the maternity and neonatal units. Before the Tribunal her claim, although on the pleadings put on both bases, was pursued only in respect of the maternity positions. The neonatal units were not considered. 21. The Appeal Tribunal allowed an appeal. It considered that the Tribunal should have considered both the claims as had been expressed in the IT1 (as it then was). On further appeal to the Court of Appeal, that decision was overturned and the decision of the Tribunal restored. The reasoning is contained in the following extracts from the Judgment. At paragraph 14, Peter Gibson LJ said that the point being made was that:

“14. … the error of law found by the Employment Appeal Tribunal is dependent upon the existence of a duty on the industrial tribunal so to ensure, or a duty to hear every allegation in the originating application unless so abandoned, the industrial tribunal being bound to act of its own motion even if the applicant does not put forward evidence to make good the allegation nor argues in support of it. … 15. There is no like duty in civil actions in the courts, even if the plaintiff is a litigant in person. It is every judge’s frequent experience that more points are taken in a plaintiff’s pleadings than are pursued at the trial and I cannot believe that a plaintiff who fails at the trial to take and prove a claim made in his pleadings could at the appellate stage successfully contend that the trial judge erred in law if he did not draw that claim to the plaintiff’s attention to see if it had been abandoned.” 22. At paragraph 17 he referred to Rule 9, the equivalent then of what is now Rule 41, and observed: “17. … Many litigants in the industrial tribunal appear in person or with lay representatives and despite the wide discretion given to the tribunal by rule 9(1) it is conceivable that the courts might have recognised a duty such as that implicitly found by the Employment Appeal Tribunal. However a long and consistent line of cases gives no encouragement whatever to the existence of such a duty and consistently with the procedural rules, which apply in the same way to unfair dismissal or redundancy cases and to discrimination cases, there has been no difference of approach between the two types of cases.” 23. At paragraph 28 he expressed that he had reached the clear conclusion that the Appeal Tribunal was not entitled to find an error of law, adding that he would encourage Industrial Tribunals nonetheless to be as helpful as possible to litigants in formulating and presenting their cases. However: “28. … it must be for the judgment of the particular industrial tribunal in the particular circumstances of the case before it whether of its own motion it should investigate any pleaded complaint which it is for the litigant to prove but which he is not setting out to prove. …” 24. In the Judgment of Sir Christopher Slade, who with Henry LJ concurred, at paragraph 34 is said: “34. … the almost irresistible inference from the terms of [a particular letter], coupled with the fact that Mrs Mensah never complained about the directions contained in it, is that she gave no indication whatever to the tribunal that she still wished to pursue her claim in regard to the vacancies at the neonatal unit. Furthermore, when she subsequently attended the full hearing before the tribunal, she adduced no argument or evidence to support this particular claim.”

Paragraph 35:

“35. … The authorities to which he has referred in my judgment preclude findings of any legal duty on the part of the tribunal to deal with it of its own motion, or of any corresponding legal right in Mrs Mensah to have it dealt with in the circumstances of this case.” 25. The argument for the Claimant, skilfully advanced by Mr Jake Davies of counsel, who appears pro bono, is that those authorities are to be distinguished. Although on the face of it they may seem hostile to the grounds of appeal, both turn upon their own facts, as indeed I would add the last words of paragraph 35 of Sir Christopher Slade appear to indicate. 26. In Mensah at paragraph 27 Peter Gibson LJ had said that he would emphasise that Mrs Mensah’s case: “27. … has never been that she indicated to the chairman at the pre-hearing review that she wished to pursue her complaint relating to the neonatal unit vacancies. …” 27. This therefore was a case in which no complaint had ever been advanced as such before the Tribunal which it was argued on appeal should nonetheless have been considered. The case here is very different. Although Mr Davies accepted, in paragraph 12 of his skeleton argument, that the Employment Tribunal told the Claimant that it understood that his main complaints were as recorded at paragraph 1 of its Reasons and that he agreed that that was the case, nonetheless the Appeal Tribunal had invited Judge Ryan to set out his own note of that which had been said in closing by the Claimant. The note at paragraph 10 of the Response reads “Claims in ET1 and statement”

. This appears to be a reference back to the claims as made in the ET1 and described in the statement. This was not therefore a case in which it could legitimately be said that the Claimant had abandoned those particular claims. He argued that the Tribunal did not here deal with the overall argument that there had been ongoing discrimination until the date of dismissal because there was a state of affairs in which the Claimant was ill-treated by his employer. He thought that each of the incidents of ill-treatment was to do with his race. But the Tribunal failed to take a holistic overview of everything that had happened. Had it done so, it might very well have come to a different conclusion in respect of its decision as to time. It did not, when looking at the question of time limits, consider that there had been a continuing course of conduct. Yet that was the Claimant’s allegation. It is possible that, had it done so and had it concluded that there was such a course, it would then have had to resolve whether or not, as a matter of fact, there had been discrimination against the Claimant in relation to his being allocated to the pool. 28. Here the Tribunal’s Judgment falls short. It set out the views of the minority but it did not set out the basis upon which the majority did not draw the inference which appealed to Ms Worthington. The complaint generally was made that it was wrong to treat the several incidents alleged of harassment as though they were separate from and independent of each other and of the allocation to the pool. In discrimination cases in particular, it is important to take an overall view as well as carefully examining the circumstances of each individual allegation. If and on the assumption that the issues list did not fully reflect the matters which the Tribunal was bound in law to consider, then it had failed to deal appropriately with the complaint about the way in which the Claimant had, as he put it in paragraph 9 of his statement, been shifted around whereas a comparator, who appears to have been the only other Community Support Officer who was not appointed to another job, was simply left in the same post throughout. There was no attempt anywhere in the Judgment to deal with the comparison and therefore a failure to grapple with a case which had been made. Discussion 29. The first matter for me to resolve is whether or not the Tribunal accurately recorded the list of issues as being issues which were outstanding at the conclusion of the hearing. It was only those issues which were outstanding as it saw it in respect of which it needed to give reasons. As to this, the evidence it seems to me is all one way. First, the Tribunal said that the issues were agreed. It said at the outset, but added “and rehearsed and revised during the course of the hearing”. Those words are unusual. They indicate that this was a case in which the issues requiring resolution evolved. It is not difficult to see why that may be where the allocation of legal labels to the particular factual situations of which the Claimant raised concerns occurred during the hearing. 30. The Tribunal having said that the issues were agreed, it would take considerable material for me to conclude that that was itself a misstatement. However, paragraph 12 of the skeleton argument of Mr Davies confirms the agreement. That is qualified by the word “main” in front of the word “complaints” but nonetheless indicates what the Tribunal thought were the main issues for its resolution. 31. Thirdly, I have a copy put before me of the Respondent’s closing written submissions. Those closing written submissions set out issues in terms almost identical to the issues as the Tribunal described them. The one difference is that the Tribunal’s list of issues at 1.2.3.4 describes the lack of access to a workstation as having lasted from 4 August 2011 to 1 May 2013. The Respondent’s submissions understood from the Claimant’s witness statement that any lack of access had gone on only until the end of 2011. It is however unnecessary for me to resolve that particular dispute, which seems to me irrelevant to the matters I have to conclude. 32. Accordingly I am satisfied that I should resolve this matter upon the basis that, between the parties, at the conclusion of the hearing, the issues with which the Tribunal was required to deal in its Judgment were those with which it did then deal. It did not deal fully, it seems to me, with the issue of time, but as it seems to me, if it was entitled to reach the conclusions it did on the merits of the various claims, that is irrelevant to the conclusion, since the claims anyway would fail. 33. This case, secondly, is materially different from cases in which there has been a clear statement of a particular point as being in issue at the outset of the hearing but during the course of which it appears that a concession is being made. In such a case (see Segor v Goodrich Actuation Systems Ltd

UKEAT/0145/11

, a decision of this Tribunal on 10 February 2012) the principle is that a concession or withdrawal cannot properly be accepted as such unless it is clear, unequivocal and unambiguous. That, however, is dealing with a very different factual situation than the one in question here. 34. If a Tribunal were to be expected to resolve the issues not only as being those put before it for argument and discussion by the parties at the time of the hearing but also by reference to the pleading, or otherwise be in error of law, then the principle in Mensah would be other than it was. That principle recognises that although, as I would hold, a matter cannot be advanced unless it is within the scope of the pleadings (subject only to the agreement by the parties that it should be permitted to proceed) this does not have the consequence that every matter which may be said to be within the pleadings is a matter upon which the Tribunal’s decision is actually required. It has to resolve the dispute as brought before it by the parties. That is its role: see Muschett . Here, therefore, the parties, as it seems to me, had agreed the approach which the Tribunal should take. Subject only to the “overall” point addressed by ground 3, it is the approach it adopted. On appeal it is too late to argue the case on a different footing. 35. Having taken that view, as I do, and adopting to that extent the submissions of Mr Kenward, grounds 1, 2, 4 and 5 must fall away. That still leaves ground 3. The fact that the issues are as defined by the Tribunal does not mean that the Tribunal in this case was required to consider each of the allegations made by the Claimant as if it was a completely separate act with no relationship to the others. Experience teaches that few acts between the same parties can in truth be said to be completely unrelated. To understand why the parties act as they do in respect of a particular situation, regard may need to be had to evidence as to how they have behaved towards each other on other occasions. As it has been put previously, it is difficult to understand a scene in the third act of a play without seeing what has happened in the first two acts of the same play. 36. A Tribunal considering a case of discrimination must be alert to the inferences which it may properly draw from the evidence that, despite the denials of the alleged discriminator, nonetheless it might have occurred. It must carefully examine the whole of the circumstances to ensure that by focusing upon individual episodes it does not miss the eloquence of the story told by considering the whole. 37. The question here is whether the Tribunal, in what is a relatively succinct Judgment, indicated that that is what it had done. 38. In its Decision, Mr Kenward argues that it did just that in the concluding sentence of paragraph 4.6 and the sentence in the middle of paragraph 4.1 to which I have already drawn attention. It might be added that in paragraph 4.9, by the reference to the way in which the Claimant was treated by his move at short notice being “not untypical”, the Tribunal was indicating it had regard to the evidence as to other events though it did not specify what they were. 39. A Tribunal’s decision is not to be subject to overpernickety analysis. In particular, where it is relatively succinct, that ought more to be a matter of praise than of criticism. I have concluded that, brief though these references are, they do indicate that the Tribunal had a regard for the picture painted overall and had not in error of law focussed upon individual events to an exclusion of seeing a bigger picture. 40. There is further support, in my view, for the view to which the Tribunal came. That is because, in each and every one of the events which the Tribunal examined, it found a reason which it accepted as non-discriminatory for the way in which the Claimant had been treated. A claim of discrimination does not get stronger because there is a greater number of complaints. It is only if some of those complaints are justified or may be justified that they may be arrogated with others to present a rather different picture than if one had simply focussed upon the events individually. Here that could not be said since at every turn the Tribunal rejected the case for the Claimant. Though it thought the case to be entirely genuinely pursued it thought also that the Respondent’s explanation was entirely genuine. 41. Accordingly, as it seems to me, ground 3 of the Notice of Appeal has no substance. For those reasons, the appeal as a whole must be and is dismissed. I cannot, however, leave this Judgment without thanking Mr Davies, acting without remuneration as he does, for having exemplified some of the best characteristics of the legal profession in doing so.