Cousins v The Forum@greenwich (Sex Discrimination: Direct) [2016] UKEAT 0183_15_0102

EAT
Cousins v The Forum@greenwich (Sex Discrimination: Direct)
[2016] UKEAT 0183_15_0102 · 2016-02-01
[1]I refer to the parties as the Claimant and the Respondent, as below. This is the Claimant’s appeal against a Judgment of the London (South) Employment Tribunal (Employment Judge Andrews, sitting with members on 9-12 March, and 13 and 17 March 2015 in Chambers; “the ET”); sent to the parties on 19 March 2015. Neither advocate appearing before me appeared below.[2]By its Judgment, the ET dismissed all the Claimant’s claims. The Claimant has appealed against the Judgment insofar as it relates to her claims of race and sex discrimination and of victimisation. I permitted the appeal to proceed to a Full Hearing on amended grounds of appeal after an Appellant-Only Preliminary Hearing on 9 October 2015. The Background Facts[3]The Respondent is a charity providing community centre space to local groups. The Claimant - a black woman of Afro-Caribbean origin - started her employment there on 8 August 2012. From early on, she experienced difficulties in her relations with the Respondent’s Chair of Trustees - Mr Grinfeld. In September 2012, in a discussion with the Claimant, in he used the words “ the problem with black women ”. Before the ET, he accepted that was inappropriate.[4]In February 2013, the Claimant was promoted to the position of General Manager, initially subject to a six month probation period. On 30 May 2013, she submitted a formal grievance, in particular in respect of her relationship with Mr Grinfeld; that was the protected act subsequently relied on by the Claimant in her victimisation claim.[5]That grievance was investigated by a member of the Respondent’s Board of Trustees, Mr Radford. He met with the Claimant and received evidence from other Trustees, meeting with Mr Grinfeld and receiving evidence from a Mr Martin and a Ms Palmer. His report - provided to the Claimant on/around 10 July - largely rejected her grievance, but acknowledged her poor working relationship with Mr Grinfeld and recommended a way forward, with the setting of clear targets, the involvement of a third party to act as mediator, and equality and diversity training for Mr Grinfeld.[6]Meanwhile, Mr Grinfeld produced a highly critical report on the Claimant’s performance for the Trustees, recommending she not be retained at the end of the probation period. Without going through each of the criticisms in detail, the ET doubted that Mr Grinfeld’s report was entirely fair and balanced. In any event, the Board, which met on 8 July, decided not to terminate the Claimant’s employment. It was, instead, persuaded by the arguments of another Trustee, Mr Martin, and decided to extend the probation period, setting specific targets in four areas. Following that meeting, on 23 July 2013, a letter was sent to the Claimant, confirming the extension of her probation period to 11 November (to give her and the Board time to develop the longer-term strategies) and asking her to focus on four specific tasks and produce management reports on each. A copy of the letter was also handed to the Claimant at a subsequent meeting with Mr Grinfeld and Mr Radford in early August.[7]The Claimant appealed the findings of the grievance report adverse to her. Her appeal was heard by Mr Martin, who largely rejected it. Meanwhile, Mr Grinfeld stepped down as Chair of the Respondent for health reasons and played no active role in the Respondent’s affairs between mid-November 2013 and February 2014. Ms Palmer took over as Acting Chair.[8]On 21 November 2013, after receiving a management report from the Claimant, the Board voted on whether or not to terminate her employment. Three Trustees (including Mr Grinfeld, by proxy), voted for termination; two against. In the circumstances it was agreed that professional advice should be obtained as to how to proceed.[9]At a Board meeting on 7 January 2014, it was decided to invite the Claimant to a formal hearing to answer questions as to her capability to do the work required; specifically, in terms of the management reports required by the 23 July letter. After it became apparent that the Claimant was saying she had not read the 23 July letter, she was invited to a disciplinary hearing regarding her refusal to comply with a reasonable management instruction. That hearing ultimately took place on 4 March 2014, when the Claimant attended with her trade union representative, who complained that the only reason for the disciplinary was her earlier grievance, her allegations of racism and that she was being victimised. The meeting ended with the Claimant being given more time to submit information. All was then considered by Mr Radford, who took the decision that the Claimant’s employment should be terminated with four weeks pay in lieu of notice; a decision communicated to her on 7 April 2014.[10]The Claimant appealed and her appeal was heard by Mr Martin on 9 July 2014, but was ultimately rejected for reasons provided to the Claimant by letter of 29 August 2014. The ET’s Conclusions and Reasoning[11]The ET heard evidence over four days including oral testimony from the Claimant and one of the Trustees of the Respondent, Ms Palmer, on her behalf. It also heard evidence from three other Trustees called by the Respondent, Mr Grinfeld, Mr Martin and Mr Radford.[12]On direct race and sex discrimination the ET concluded that Mr Grinfeld’s “ problem with black women ” comment was less favourable treatment; although not a stand-alone complaint, it was part of the evidentiary background. Whilst the dismissal was less favourable treatment, the ET did not find that was a consequence of Mr Grinfeld’s machinations; the reason for the dismissal was the Claimant’s failure to produce reports as required by the 23 July letter. Although the letter was sent to her in July and handed to her in August, in December 2013 the Claimant admitted to Ms Palmer she still had not read it. Although the Claimant had not been particularly well-managed and Mr Grinfeld’s manner was unhelpful:
“89(b) … ultimately she was informed what was required of her and she did not produce it. When Mr Radford then considered whether to dismiss her or not, we conclude that he made that decision alone and on the basis set out above rather than on the basis of her race or gender. …”
Specifically, the ET rejected any contention that Mr Radford was influenced by Mr Grinfeld. That was also true of the decision on the appeal; the ET was satisfied that Mr Martin had made his own decision and was, again, not influenced by Mr Grinfeld.[13]As for the earlier extension of the Claimant’s probation period, that too could not be linked to Mr Grinfeld, who had wanted her employment to be terminated. Others decided to extend the probation period; the course Mr Martin favoured. In any event, the extension of the Claimant’s probation period was not less favourable treatment; it was a benefit to her.[14]There was equally nothing in the allegation of direct discrimination in the institution of the disciplinary process.[15]More generally, the ET accepted that criticisms could be made of Mr Grinfeld’s management style and conduct, but did not find that these were because of race or sex; he behaved in the same way towards others (including white men).[16]Whilst the Claimant’s grievance of 30 May 2013 was a protected act, the victimisation claim was rejected for the same reasons as the direct discrimination claims. The Appeal and Submissions The Claimant’s Submissions[17]The Claimant pursued six grounds of appeal; the first five relate to both the claims of direct sex and race discrimination and of victimisation; the last, to the victimisation claim alone.[18]By ground 1, the Claimant challenges the rejection of her complaint in respect of the extension of her probation period. The ET’s finding that Mr Grinfeld had not caused the Claimant’s probation period to be extended because he had recommended she be dismissed was wrong in law, and/or perverse, and/or inadequately reasoned. The ET wrongly failed to consider whether Mr Grinfeld materially influenced the outcome of the meeting and had required an exact correlation between the intention - to achieve the Claimant’s dismissal - and outcome, which failed to allow for the possibility that Mr Grinfeld had materially influenced the decision made (even if not precisely the decision he had wished to achieve). This case could be distinguished from Reynolds v CLFIS (UK) Ltd [2015] ICR 1010 ; Mr Grinfeld was not separate from the decision in issue but was driving the process.[19]Alternatively, the ET’s reasoning was inadequate given the context provided by Mr Grinfeld’s report and recommendation and the ET’s criticisms of that report and the wider factual context. The Claimant was entitled to understand why the ET had concluded that this had not materially influenced the decision. Specifically, his presentation of an unfair, one-sided report to the Board had been listed as one of the issues for the ET to determine, but it had failed to address that as an act of detriment.[20]Remaining with the ET’s finding on the extension of the probation period, by ground 2, the Claimant contended its conclusion that this was not a detriment was wrong in law/perverse. If the ET was, at paragraph 89(c), considering less favourable treatment, it was hard to understand the reasoning; if Mr Grinfeld’s option was the comparison but itself amounted to discrimination it could not provide the relevant comparison. If, however, the ET was seeing the question of benefit as “other than detriment”, then it failed to apply the correct test, i.e. whether the Claimant might have reasonably preferred not to have been treated in that way ( Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065 ).[21]By her third ground of appeal, the Claimant contends the ET failed to apply the burden of proof correctly. It found that Mr Grinfeld - by virtue of his remark about black women, in September 2012 - had directly discriminated against the Claimant. It further found that his report for the July 2013 Board meeting was neither fair nor balanced (or, at least, the ET doubted that it was). That had been sufficient to shift the burden of proof.[22]Turning to the fourth ground of appeal, this concerns the ET’s rejection of the Claimant’s claims in respect of her dismissal. The ET failed to examine Mr Grinfeld’s reasons for producing the report in July 2013 and advocating for the Claimant’s dismissal. It further failed to ask whether his actions played a part in the eventual dismissal, whether by subconscious influence or otherwise. More directly, Mr Grinfeld’s proxy vote at the December 2013 Board meeting meant that dismissal could remain an option.[23]Looking also at the lead up to the decision to dismiss, by ground 5 the Claimant complains the ET gave inadequate reasons/failed to make adequate findings on Mr Grinfeld’s reasons for preparing the July 2013 report, recommending she be dismissed and further advocating for that dismissal at the 8 July Board meeting and then casting his vote by proxy for her dismissal on 21 November. It further failed to make findings/give adequate reasons as to whether those matters played any significant causative part in the decision to dismiss.[24]Finally, by ground 6, the Claimant complains the ET erred in applying the same test when considering her claim of victimisation as it did for direct discrimination. The two tests were different. The reasoning elided the approach to the direct discrimination claims with the approach for the victimisation claim; that failed to allow for the separate statutory tests. The Respondent’s Submissions[25]By way of overview, the Respondent observed that the ET sat to hear evidence over four days and, in so doing, heard from the Claimant and from four of the Respondent’s Trustees, including Mr Grinfeld. The Claimant had clarified at the outset that she was not pursuing a stand-alone complaint in respect of Mr Grinfeld’s “ problem with black women ” comment. Her case was put squarely on the basis Mr Grinfeld - either directly or by his machinations - caused her probation period to be extended and, ultimately, her dismissal.[26]Turning to the specific grounds of appeal, in respect of the extension of the Claimant’s probation period (grounds 1 and 2), the ET had been entitled to make the finding complained of; that is, that Mr Grinfeld had not caused the probation period to be extended. The ET had heard evidence of the concerns of other Trustees regarding the Claimant’s performance at the end of her initial probation period. Quite early on, the Claimant had herself been aware of concerns by all four Trustees (see paragraph 39 of the ET’s Judgment). Moreover, Mr Martin - one of those Trustees - had been recorded as expressing continuing concerns in April 2013 (see paragraphs 49 and 50). It was further apparent on the evidence before the ET that there were disagreements between Mr Grinfeld and the other Trustees on the issue of the Claimant. There was an entirely proper evidential basis for the ET’s clear and express conclusion (paragraph 89(b)) that Mr Martin had disagreed with Mr Grinfeld on the decision relating to the Claimant’s probation period, and that justified the ET’s rejection of the Claimant’s case on this issue. Any causal connection with Mr Grinfeld had been severed.[27]The second ground of appeal had to stand or fall with the first. However, the extension to the probation period was characterised - whether benefit or detriment - without a causal link to Mr Grinfeld, the Claimant’s case did not get off the ground. In any event, given that the alternative option was dismissal, the ET had been entitled to find this was to her benefit.[28]As for the third ground of appeal, and the ET’s approach to the burden of proof, the ET had given itself a correct self-direction as to the relevant legal principles. It had found that Mr Grinfeld was a robust, direct and brusque person towards persons of both sexes and various racial backgrounds. It was entitled to find the burden had not shifted. In any event, the ET had made positive findings that:(i) on the probation period extension, the majority of the Board wanted to give the Claimant a further chance to improve, and(ii) on the dismissal, Mr Radford took the decision solely on the ground of the performance issues then in play. Even if the burden had shifted, those were findings of non-discriminatory explanations.[29]Turning to the fourth ground - the ET’s rejection of the Claimant’s claims in respect of her dismissal - the ET had made a clear finding that Mr Radford’s decision was his alone, made due to his concerns as to the Claimant’s performance in respect of the objectives set for her and her failings in that regard. The Claimant could not avoid those conclusions by criticising the ET in respect of its findings on the lead-up to the decision to dismiss (ground 5) and the Respondent, again relied on the ET’s clear findings that those who took the decisions in issue - not Mr Grinfeld - did so for their own reasons independently of Mr Grinfeld, with whom they were quite capable of disagreeing. This was a matter of assessment for the ET.[30]Finally, in respect of the criticism at ground 6 - of the ET’s approach to the victimisation complaint - read in the round, it could be seen that the ET was simply trying to avoid repeating the findings made in respect of direct discrimination. The Claimant in Reply[31]In response, Mr Keen observed that the ET’s findings begged the question as to why the Respondent’s Board met in July 2013. The Respondent said it was to discuss the ending of the probation period, but that, of itself, required an explanation: why was the Claimant’s employment not simply continued? Why was there a need for the Board to meet on this issue? The Relevant Legal Provisions and Principles[32]Direct discrimination is defined at section 13 of the Equality Act 2010 , relevantly:
“(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”
Thus, direct discrimination requires (1) a finding of less favourable treatment - a comparative exercise (whether the comparison be actual or hypothetical) - and (2) a determination of the reason for the treatment (whether it was because of the relevant protected characteristic).[33]Victimisation is defined by section 27, relevantly:
“(1) A person (A) victimises another person (B) if A subjects B to a detriment because - (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.”
[34]In determining whether the treatment complained of - the less favourable treatment in the case of a complaint of direct discrimination; the detriment in a case of a complaint of victimisation - is because of the protected characteristic or protected act, the approach to the burden of proof is laid down by section 136 of the Equality Act , as follows:
“(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.”
[35]In determining whether the burden has shifted, the question for the ET is not whether, on the basis of facts established by the complainant, it would determine there has been discrimination, but whether it could do so; the Claimant need only establish a prima facie case. That said, a mere difference in possession of the relevant protected characteristic/performance of the relevant protected act and a difference in treatment will not suffice; something more is required, which could enable such a finding (see Igen v Wong [2005] IRLR 258 ; Madarassy v Nomura [2007] IRLR 246 ).[36]Where, as is not uncommon, a matter involves more than one actor and where the later decision taker is found to be innocent of discriminatory motivation but influenced by information supplied or views expressed by another whose motivation is held to have been discriminatory - a case of tainted information - it has been said that it is the motivation of the later actor - the actual individual who did the act complained of/the actual decision taker - that has to be scrutinised; it will not be sufficient to show that they were acting on the basis of tainted information on the part of someone else ( CLFIS (UK) Ltd v Reynolds ). Discussion and Conclusions[37]By grounds 1 and 2 the Claimant challenges the rejection of her complaints in respect of the extension of her probation period. This was, and remains, a significant issue for the Claimant. She sees it as underpinning the Respondent’s subsequent decisions in respect of her employment and thus her dismissal.[38]On the basis of its findings of fact, the ET was faced with the following factual matrix.[39]On the one hand, Mr Grinfeld had a poor relationship with the Claimant and had spoken to her - “ the problem with black women ” comment - in an inappropriate and, as the ET concluded, less favourable way. He had produced a report recommending the Claimant be dismissed, the fairness and balance of which was - as the ET found - open to doubt. It had, further, been recommended he attend equality and diversity training to update his knowledge of working in a multicultural environment.[40]All that said, the ET’s findings of fact also referenced concerns being expressed regarding the Claimant’s performance by other members of the Board, specifically by Mr Martin, who, the ET found, ultimately won the day in terms of his argument to extend the Claimant’s probation period at the July Board meeting.[41]The ET’s rejection of the Claimant’s contention that Mr Grinfeld “ caused the Claimant’s probation period to be extended ” (as it was put in the list of issues) is expressed in a fairly summary way (see paragraph 89(c)). The conclusion on this issue appears after the ET has dealt with the subsequent decision to dismiss and then to reject the appeal against dismissal. That is unfortunate. It means that it is hard, on the face of the ET’s statement of its conclusion, to readily understand whether it has treated this as a case where the burden of proof has shifted, given the facts relevant to Mr Grinfeld’s involvement as summarised above. If it did not do so, it is equally hard to discern why not.[42]Looking at its conclusion as simply expressed at paragraph 89(c), I might infer that the ET was not entirely satisfied that the burden of proof had shifted; it did not find there to have been less favourable treatment.[43]Equally, I would allow that it is not entirely clear, in that regard, whether the ET was there applying the test of detriment appropriate to the victimisation claim or purely of less favourable treatment. Assuming the latter - that is the expression it uses - I would accept that it is also unclear as to the nature of the comparison being undertaken (and a comparison with how the Claimant might have been treated if Mr Grinfeld’s recommendation had been adopted would not seem to address the relevant question).[44]Acknowledging all those criticisms, I have to remind myself that an ET is entitled to expect me to examine its reasoning not just by looking at one paragraph in its conclusions but by reading its Judgment taken as a whole. Doing so, I do not think that assists in terms of understanding the ET’s approach to less favourable treatment and the question whether it had formally found the burden of proof had shifted. That said - as the Respondent has observed - that would not be fatal to the ultimate conclusion if it were clear that the ET had found there was a non-discriminatory explanation in any event.[45]Standing back, and having regard to the entirety of the ET’s reasoning, as I am bound to do, I note the finding that the Board decided that the Claimant’s employment should not be terminated: it rejected Mr Grinfeld’s recommendation and, instead, determined that her probation period should be extended; a decision the ET concluded arose as a result of Mr Martin’s adoption of a position in disagreement with Mr Grinfeld. That was - on the basis of the ET’s findings taken as a whole - against the broader background of concerns held about the Claimant’s performance by members of the Respondent’s Board (not just by Mr Grinfeld).[46]I have further looked at the way in which the issues were defined for the ET in this regard and note that this was put as a question of causation relating to the ultimate decision taken - whether Mr Grinfeld had caused the Claimant’s probation period to be extended - not simply as the unbalanced report constituting an act of discrimination in itself.[47]The Claimant says the ET erred in requiring that Mr Grinfeld’s intention - to achieve her dismissal in July 2013 - had to exactly equate to the final result (something less than her dismissal at that stage); she says it was sufficient that he materially influenced that decision.[48]I do not disagree with the underlying statement of principle that informs that submission. An exact correlation between intent and outcome is not, in my judgment, required for there to be discrimination or victimisation. What, however, I conclude is fatal for the Claimant here, is that the ET clearly found a break in the causation (contrary to her case). The ET expressly found that Mr Martin disagreed with Mr Grinfeld and it was Mr Martin’s advocacy in favour of extending the probation period that influenced the majority of the Board.[49]Applying the guidance laid down in Reynolds , the ET was entitled to look at what really informed the decision in question. It was best placed to make the requisite assessment given that it heard the evidence, challenged as it was in cross-examination. I do not think that the ET lost sight of the criticisms the Claimant was making of Mr Grinfeld or, indeed, of its own findings adverse to him, which meant that his own report to the Board was tainted. It was, however, entitled to form a view as to who really informed the decision to extend the Claimant’s probation period and I must respect its conclusion that that was Mr Martin, who disagreed with Mr Grinfeld in that respect.[50]I conclude, therefore, that although the Claimant might have had some reason for the criticism that underpins ground 2, that ultimately goes nowhere because the answer to ground 1 is that the ET reached a decision open to it on its findings of fact and did not thereby err in law.[51]That is also an answer to the Claimant’s other grounds of appeal. The objection to the ET’s findings on the extension of the probation period was rightly put by Mr Keen as the high point of the Claimant’s challenge on appeal. Having concluded, as I have, that the appeal must fail on the extension of the probation period, that effectively answers the objections taken on various bases to the ET’s conclusions on the decision to dismiss and also the rejection of the appeal. Indeed, the position is made all the more plain on those points by the ET’s very clear findings that Mr Radford on the decision to dismiss and Mr Martin on the subsequent appeal were not influenced by Mr Grinfeld, but took their decisions for non-discriminatory reasons, namely the Claimant’s own failure to meet the performance requirements made of her.[52]Similarly, on the ET’s rejection of the Claimant’s victimisation complaint. Although it would have been better if the ET had more fully explained its conclusion by reference to the relevant statutory test, taking its reasoning as a whole (as, again, I am required to do), it is apparent the ET accepted that the Respondent had provided an explanation other than the protected act as the reason for its conduct; it accepted the Board had been persuaded by Mr Martin - disagreeing with Mr Grinfeld - that the Claimant’s probation period should be extended in July 2013 and specific targets set. By thus concluding, the ET was expressly rejecting the Claimant’s case that it was Mr Grinfeld who had brought this about as an act of victimisation. It equally rejected the Claimant’s complaint that the decision that she be dismissed was because of a protected act.[53]When giving its self-direction on the law, the ET made clear it understood the different statutory tests. Its failure to repeat the test under section 27 in its conclusions does not, of itself, taint its finding on the victimisation complaint. Moreover, I am satisfied its conclusion is not tainted as a matter of substance or reasoning; looking back at the earlier findings, it is clear the ET concluded the actions complained of took place for reasons other than the protected act.[54]Although the ET’s Judgment may not be a model of its kind, the reasoning - taken as a whole - is adequate to the task and I am satisfied that it enables the parties to understand why the ET reached the decisions it did. For all those reasons I dismiss the appeal.