Appeal No. UKEAT/0536/10/ZT
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At
the Tribunal
On
12 April 2011
Before
THE
HONOURABLE MR JUSTICE BEAN
MR D EVANS CBE
DR B V FITZGERALD MBE LLD FRSA
MS
J SMALL APPELLANT
BARKING
HAVERING AND REDBRIDGE NHS TRUST RESPONDENT
Transcript of Proceedings
JUDGMENT
THE HONOURABLE MR JUSTICE BEAN
Introduction
1.
The Claimant is a black woman of Afro-Caribbean ethnic origin who has
been employed by the Respondent Trust as a nurse since 1989. She issued five
claims against them in the Employment Tribunal, one in 2008 and four in 2009.
The five claims were consolidated and heard together in January 2010 before
Employment Judge Goodrich and two lay members. The Respondents were
represented by Mr Assersohn of counsel who has also appeared before us. The
Claimant was represented by her sister and by a friend.
2.
The closing submissions on behalf of the Claimant covered issues of law
and fact in considerable detail. The Employment Tribunal had to consider a
number of allegations about various incidents generally described as “race
and/or sex discrimination and harassment”. We commend the Tribunal for the
fact that they were able to deal with the case in six working days plus time
for deliberation and produced a judgment which is criticised before us
essentially only in respect of two paragraphs, though they are very important
ones.
3.
The Employment Tribunal upheld an allegation of sex discrimination
concerning the Respondent’s failure to consult the Claimant about changes to
her shift patterns. There is no appeal by the Respondent against that
finding. The Tribunal dismissed all Ms Small’s other complaints and now with
the advantage of representation by Mr Renton of counsel, she appeals against
the dismissal of two particular complaints which we shall come to shortly.
The facts
4.
Ms Beverly Sawer was the Claimant’s line manager in 2007 and was then
the senior ward sister on Erica Ward. The relationship between the Claimant
and Ms Sawer was not a happy one. Both gave evidence before the Tribunal and
the Tribunal was critical of each of them both in respect of their behaviour
towards each other at work and also describing the evidence of each of them as
unconvincing, at least in certain respects.
5.
The first issue on which the Claimant appeals concerns the stopping of
her sick pay. The Respondent had a policy on the notification of sickness
absence, as most employers do. This included, as the Tribunal found,
provisions requiring prompt notification on the first day of absence; the
completion of a return to work notification form by the staff member concerned;
and, in the case of an absence of eight calendar days and beyond, a GP’s
certificate.
6.
The Tribunal found in paragraph 71 as follows:
“In dispute between the parties is whether, or the extent to
which, the Claimant submitted sick certificates late. We find that the
Claimant did submit sick certificates in late and did so regularly, although
not as regularly as Ms Sawer understood the position to be at the time. There
are also some extenuating circumstances for the Claimant’s lateness in
submitting certificates, such as that she had difficulties in getting medical
appointments promptly and the doctor’s certificates getting through to the
Claimant.”
7.
The Claimant was off sick for a period of months in 2007 with what she
described as multiple pregnancy related illness. At some point in 2007, her
sick pay was stopped. On 29 September, she wrote a letter to Ms Sawer
complaining about the stopping of her sick pay. She stated that she felt:
“... harassed by my employer whilst heavily pregnant with
multiple pregnancy related illness causing severe emotional stress and would
like to know how you intend to rectify the situation.”
8.
This was treated as a grievance and the Respondent did deal with it,
though rather slowly. In May 2008, a Ms Wright, Deputy Director of Nursing
Services for the Respondent decided to restore the sick pay but it was not
actually paid to the Claimant until January 2009. That is more than a year
after the period which was in question. The Tribunal found at paragraph 147.2:
“The Claimant had her sick pay stopped. The Claimant was late
in sending in sick certificates and in notifying her managers promptly as to
when she would be returning to work. It is necessary for managers, when
running a ward for people in a vulnerable condition and needing care, to be
able to plan the staff rotas. Ms Sawer had valid grounds for being concerned
about the Claimant’s behaviour. Nor did the Claimant help herself by being
rude and unco-operative when an attempt was made to contact her as described in
our findings of fact. The Claimant was also in breach of the Respondent’s sick
pay policy. Ms Sawer did not handle the issue particularly well - it would
have been better to have warned the Claimant that, unless she did send the
certificates in promptly and keep her managers informed she would have her sick
pay stopped, rather than stopping it without prior warning. The meeting on 25
September 2007 to discuss the stopping of sick pay did not go well, although
the Claimant also needs to take responsibility for having behaved badly herself
at that meeting.”
9.
The second issue can be called the “return to work letters” issue.
The Claimant went on maternity leave in November 2007 and returned to work
almost exactly a year later. During this period, it was decided by a Mr Stone
of the Respondent’s Human Relations Department that Ms Sawer would no longer be
the Claimant’s Line Manager. Ms Kulvinder Sandhu took Ms Sawer’s place.
10.
There was a question of calculating the number of days annual leave
which the Claimant was entitled to take at the end of her maternity leave
before actually returning to work. Perhaps unwisely, Ms Sandhu asked Ms Sawer
to write to the Claimant about this subject. The Tribunal found that the Claimant
was “understandably surprised” by being written to by Ms Sawer. We have seen
the emails and Mr Renton rightly does not make any criticism of their content.
What his client was distressed by was the fact that, notwithstanding she had
been told Ms Sawer was no longer to be her manager, the letters (strictly
speaking two letters and one email) came from Ms Sawer.
11.
It is sufficient to refer to the first communication, the email of 22
October 2008 which includes this sentence:
“Your new Matron is Agatha Pollock, however as I have been
dealing solely with your case, I will continue to do so until you return to
work.”
12.
This and the other communications made it clear that it was only until
the Claimant’s return to work that Ms Sawer was going to deal with her. She
was not going to be the Claimant’s line manager in any more permanent sense and
of course the dealings between the parties prior to the Claimant’s return to
work were very limited and confined to arranging the date on which she was to
return to work.
13.
At paragraph 147.5, the Tribunal found:
“It is correct that Ms Sawer did deal with some aspects of the
management of the Claimant after stopping being her Line Manager. In practice,
however, the Claimant was off work for over a year for maternity leave and
holiday; and the management concerned an exchange of a few emails concerning
the Claimant’s return to work and her outstanding holiday entitlement.”
14.
We should now set out in full the two paragraphs of which Mr Renton
complains. They are paragraphs 148 and 149 of the Tribunal decision and read
as follows:
“148. Overall , therefore there were some relationships
difficulties between the Claimant and Ms Sawer, for which Ms Sawer bears some
of the responsibility, although the Claimant herself played a large
contribution, as further set out in our findings of fact. The Respondent also
dealt with the Claimant’s complaints unacceptably slowly. There was also a
failure to consult with her during her maternity leave as to changes in the
shift rotas, which would affect her on her return to work. There were some
aspects of our findings of fact which could indicate the existence of
discrimination, although once the Respondent did deal with her complaints,
overall she was fairly treated. These are sufficient, at least for some of the
complaints by the Claimant, to consider the Respondent’s explanations, and for
the burden of proof to shift to them to do so.
149. A number of the Claimant’s complaints concern Ms Sawer. We
have given careful consideration, therefore, to whether, consciously or
unconsciously, she may have discriminated against the Claimant on racial
grounds. She did have valid grounds for how she responded to the Claimant, as
set out above. Whilst some of the issues she dealt with could have been better
handled by her, such as to the manner in which she stopped the Claimant’s sick
pay, without prior warning, any management that was unsatisfactory does not
necessarily show unlawful race or sex discrimination. The Claimant also
contributed to the difficulties she experienced, for example by her rude and
unco-operative response when telephoned, as described in our findings of fact.
We are satisfied that her treatment by Ms Sawer was in no sense whatsoever less
favourable treatment on racial grounds”
The legislation
15.
The law to be applied is not in dispute and is familiar to all
employment practitioners. In Igen Ltd v Wong [2005] ICR 931, a
decision of the Court of Appeal which they themselves reaffirmed as correct in Madarassy
v Nomura International plc [2007]
ICR 867, the Court of Appeal approved
with slight amendments guidance which this Tribunal had given in Barton
v Investec Henderson Crosthwaite Securities Ltd
[2003] ICR 1205. The amended guidance is set out in 13 paragraphs
in an annex to Igen v Wong.
16.
This 13-paragraph guidance is mentioned in the Employment Tribunal
judgment in the present case at paragraph 34 but Mr Renton argues correctly, as
we think, that the Tribunal did not adequately apply it. We bear in mind and
emphasise that, as both this Tribunal and the Court of Appeal have said, the Igen
v Wong guidelines do not have to be applied mechanistically. It is
certainly not a 13-stage process. The first paragraph of Igen v Wong
should nevertheless be quoted in the present case:
“It is for the Claimant who complains of sex discrimination to
prove on the balance of probabilities facts from which the Tribunal could
conclude, in the absence of an adequate explanation, that the employer has
committed an act of discrimination against the Claimant which is unlawful by
[one of the relevant statutes].”
17.
If the Claimant does not do so, the claim fails, at least in the
relevant respect. If the Claimant does do so, then the burden of proof moves
to the employer (see paragraphs 9 to 13). It is unfortunate that, in paragraph
148 of the decision, the Employment Tribunal did not say which of the
Claimant’s complaints satisfied what may be called the “first stage” of the Igen
v Wong procedure so as to cause the burden of proof to shift. All that
we know is that some did, because they said so, but not all.
18.
This leads us on to paragraph 149. There, as Mr Renton has rightly
pointed out, the Tribunal three times used the phrase “on racial grounds” and
concluded with an emphatic and unequivocal finding in accordance with the
wording approved in Igen v Wong and compatible with the burden of
proof directive that the matters complained of were “in no sense whatsoever
less favourable treatment on racial grounds”. But sex discrimination is only
mentioned once, in the middle sentence of the paragraph, where the use of the
phrase “does not necessarily show unlawful race or sex discrimination” [our
emphasis] indicates a departure from the proper approach in Igen v Wong.
19.
We have concluded that we must allow the appeal against the Employment
Tribunal’s rejection of the claim that the stopping of the claim of sick pay in
2007 was an act of sex discrimination. The Claimant had complained in her
letter of 29 September 2007 that she felt harassed whilst heavily pregnant with
multiple pregnancy related illness, this in the context of a complaint about
having sick pay stopped. The Employment Tribunal must, as we see it, have been
satisfied that this allegation satisfied stage 1 of Igen v Wong;
but they have not gone on to explain why they found the employers had
successfully discharged the stage 2 burden.
20.
We emphasise that we are not saying that this claim must succeed. Mr
Renton rightly accepts that the best he can do is to have this aspect of the
case sent back for re-hearing, and that it what we shall order. We shall come
to the composition of the Tribunal at the end of this judgment.
21.
So far as the allegation that the stopping of sick pay also amounted to
race discrimination, we take a different view. The Claimant’s case on race
discrimination, which it is said gets her past stage 1 of Igen v Wong,
is that a fellow employee also of Afro-Caribbean ethnic origin, Ms Akarobwe, made
three complaints to management about Ms Sawer, the Claimant made five and there
is no evidence of any white employees having made such complaints.
22.
The closing submissions on behalf of the Claimant also mention that
there was evidence of two black members of staff being rudely spoken to by Ms
Sawer in the presence of the Claimant or Ms Akarobwe or both but, on this last
point, without notes of evidence, we do not consider that we can attach any
weight to that. In any event, these are not facts from which, in our judgment,
in the absence of adequate explanation, it could be inferred that the stopping
of the Claimant’s sick pay could be based on her race, nor is the Respondent’s
failure to monitor complaints and grievances by their staff.
23.
It is not the law as we see it that once two Afro-Caribbean employees
have made an allegation, for example, of discourtesy against a manager, the Igen
v Wong burden then shifts to the employer in respect of not only any
allegation of discourtesy, rudeness or similar matters made against that
manager by Afro-Caribbean staff but also in respect of any decision of any kind
which that manager makes concerning them. That is, we think, to paint with
much too broad a brush under the first stage of Igen v Wong.
24.
So far as the claim of harassment is concerned, in the closing
submissions before the Tribunal, the word “harassment” is simply added on as an
alternative way of expressing legal criticism of the facts complained of. It
seems to us if the Employment Tribunal accepts that the stopping of sick pay
was sex discrimination, the harassment allegation becomes academic. It is
simply a different way of expressing the same thing and we cannot see how the
Tribunal could reject the claim of sex discrimination and yet find a claim of
harassment proved.
25.
Mr Renton mentioned an interesting issue as to whether requiring a
pregnant employee to attend and wait in the crowded surgery waiting room of her
general practitioner might amount to harassment as a matter of law. That issue
was not raised below, and we are not prepared to allow it to be raised now.
26.
So we dismiss the appeal concerning the stopping of sick pay issue under
both race discrimination and harassment but we allow it on sex discrimination.
27.
We turn to the return to work letters issue. On this issue, in contrast
with the stopping of sick pay issue, there is a threshold question of whether
the Claimant suffered a detriment at all. In his helpful skeleton argument, Mr
Renton points out that the Tribunal were not directed to, and did not apply,
the well-known test set out by the House of Lords in Shamoon v Chief
Constable of the RUC [2003] ICR 337. The question to be answered is,
as Lord Hope of Craighead put it:
“Is the treatment of such a kind that a reasonable worker would
or might take the view that in all the circumstances it was to his detriment?”
28.
Mr Renton says that, insofar as the Tribunal determined that the receipt
of the few emails could not be a detriment, it was wrong. He argues that even
one single email, if its contents are sufficiently unwelcome, can be a
detriment.
29.
Of course a single email can constitute a detriment, but it
depends on what it says. Mr Renton’s formulation “if its contents are sufficiently
unwelcome” is not in accordance with the Shamoon test which does
involve the reasonable worker and not simply the subjective impression of the
Claimant.
30.
If this issue had stood alone, we would have attempted to resolve it
ourselves. But since we are remitting the stopping of sick pay issue to the
Tribunal, we have decided that we should also leave it to them to decide
whether the sending of the email and letters constituted a detriment and then,
if so, to apply Igen v Wong stage 1 and stage 2 in the usual
way. If this claim is upheld, it seems to us that compensation for it could,
at best, be modest.
Conclusion
31.
Finally, we have to consider whether the claim should be remitted to the
same or a differently constituted Tribunal. Mr Renton has told us that Ms
Small is dissatisfied with the performance of the previous Tribunal and would
prefer a fresh Tribunal. He accepts, however, that the test we have to apply
is that laid down by this Appeal Tribunal in Sinclair Roche &
Temperley v Heard & Fellows [2004] IRLR 763. We are quite
satisfied that the claim should be remitted to the same Tribunal as heard the
case originally. This is not a case where any partisanship or bias on the part
of the Tribunal has been shown. Far from it: as we have said, we consider that
they dealt with the parties in a conspicuously fair and even-handed way. The
two outstanding issues can best be described in Burton J’s phrase as
“unfinished business”.
32.
We would have reached that conclusion anyway; but it is reinforced by
the fact that there is an outstanding issue of compensation concerning the
complaint of failure to consult over shift patterns, which the Tribunal held,
and there is also a new sixth claim by Ms Small against the Trust to be dealt
with. Counsel agreed that, whatever we decided on the composition of the
Tribunal, one Tribunal should be asked to hear all the outstanding issues, that
is to say the sixth claim, the compensation claim which is already in play on
the Tribunal’s findings and the two issues which we are remitting to the
Tribunal. The stopping of sick pay issue on sex discrimination and the return
to work letters issue also on sex discrimination will therefore be remitted to
the same Tribunal as before, if, as we hope, they are available to hear the
case.
33.
We note, finally, that in the last paragraph of their judgment, the
Tribunal urged the parties to consider mediation. They said:
“…problems still exist between the parties; and that some kind
of healing process is required, with willingness on both parties needed to
improve relationships that appear to be near, or at, breakdown. We hope that
the parties will reflect on this judgment, each accept some responsibility for
the difficulties in working relationships that have occurred; and work together
with a commitment to re-establishing good working relationships.”
34.
We respectfully agree with those observations of the Employment Tribunal.
35.
We are very grateful to both counsel for their helpful submissions.
