Appeal No. UKEAT/0393/11/CEA
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX
At the Tribunal
On
12 March 2012 & 2 May 2012
Judgment handed down on 17 September 2012
Before
HIS
HONOUR JEFFREY BURKE QC
MR D G SMITH
MS P TATLOW
MRS
Y AJAYI APPELLANT
THE
APULDRAM CENTRE RESPONDENT
Transcript of Proceedings
JUDGMENT
SUMMARY
UNFAIR DISMISSAL
The Claimant was dismissed for misconduct. She claimed automatic
unfair dismissal, unfair and wrongful dismissal, race discrimination and
victimisation. Only the wrongful and unfair dismissal claims succeeded; compensation
of just over £1,000 was awarded for unfair dismissal, reduced by 30 per cent
for contributory conduct and failure to appeal.
The Claimant’s appeal against the reductions from compensation
for unfair dismissal were not pursued; the amount involved was too small; they
were not abandoned, in case they be of relevance to compensation for
discrimination/victimisation. The EAT, therefore, considered the appeal
against the rejection of those claims. The EAT concluded that the Tribunal, in
respect of both claims had made decisions on the facts, had made no error of
law and that none of their facts and findings had been shown to be perverse.
The other grounds of appeal were, in the light of the above, not
pursued.
HIS HONOUR JEFFREY BURKE
QC
The history
1.
The Claimant before the Employment Tribunal, Mrs Ajayi, appeals against
a number of the conclusions reached in their Judgment by the Employment
Tribunal, sitting at Southampton and presided over by
Employment Judge Miles. The Judgment was sent with reasons to the
parties on 16 February 2011.
2.
The Claimant has been represented before us, as before the Tribunal, by
Mr Ibekwe of the Brighton and Hove Race Project. The Respondent, The
Apuldram Centre, have been represented before us, as before the Tribunal, by
Ms Musgrave of counsel. We are grateful to both for their assistance.
3.
The Respondent is a charity which provides services to adults with
learning disabilities. They own flats, which they let to vulnerable adults,
and provide care and support to them in an effort to enable them to lead full
and active lives. They employ support workers, whose jobs were to work (see
paragraph 15 of the Tribunal’s Judgment):
“[…] as a team with staff and tenants to ensure that the
emotional, medical and material needs of the tenants are recognised, assessed
and met and to enable each tenant to fully develop their own independent lifestyle.”
4.
The Claimant was employed by the Respondent as a part‑time support
worker from 1 May 2007; she worked for over 20 hours per week and
worked elsewhere for other employers. She is, in race terms, of black African
origin.
5.
From this employment the Claimant was summarily dismissed on
25 November 2009 after an investigation of allegations of misconduct,
followed by disciplinary proceedings. She presented the following claims to
the Employment Tribunal: (1) unfair dismissal; (2) automatically unfair dismissal
for making protected disclosures; (3) direct race discrimination; (4)
victimisation; (5) wrongful dismissal; and (6) unpaid holiday pay.
6.
The Employment Tribunal’s conclusions were as follows: (1) the Claimant
had been unfairly dismissed; (2) the claim of automatically unfair dismissal
was dismissed, having been withdrawn by the Claimant; (3) the race
discrimination claim was dismissed; (4) the victimisation claim was dismissed;
(5) the wrongful dismissal claim succeeded; and (6) the holiday pay claim was
dismissed on withdrawal.
7.
The Tribunal assessed compensation for unfair dismissal at £1,053.92,
made up of a basic award of £236 and a compensatory award of £1,136; they then
reduced the award by 20 per cent for contributory conduct on the
Claimant’s part and by 10 per cent, under section 207A of the Employment Rights Act 1996,
because the Claimant had not appealed against the disciplinary conclusion.
They awarded the Claimant £329 damages for wrongful dismissal; the total award
was, therefore, £1,472.92, of which £817.92 was the compensatory award for
unfair dismissal.
The grounds of appeal
8.
It is important to set out the grounds of appeal contained in the
Claimant’s notice so that what follows can be understood. They are:
(1) Unfair
dismissal: (a) the Tribunal, in reaching their decision on unfair dismissal,
did so on procedural grounds, namely that there had been an inadequate
investigation of the allegations against the Claimant – as was conceded – and
wrongly failed to decide whether the dismissal was, as contended by the
Claimant, substantively unfair (this led to adverse or potentially adverse
effects upon the assessment of compensation); and (b) the Tribunal failed to
take into account a number of important facts that went to substantive unfairness
or, if they regarded those factors as immaterial, to explain why they had done
so.
(2) Discrimination:
(a) the Tribunal misunderstood the nature of the Claimant’s case on race
discrimination and/or failed to make findings as to, or give adequate reasons
for, rejecting the discrimination claim; and (b) the Tribunal failed to take
into account a number of important factors that went to prove discrimination or
to give reasons for failing to do so.
(3) Victimisation:
(a) the Tribunal failed to apply the law correctly in considering the
victimisation claim; and (b) the Tribunal failed to take into account in
considering the victimisation claim the Claimant’s complaints of 7 March 2009
and 20 October 2009.
(4) Contributory
fault: the Tribunal decided that the Claimant was at fault to the extent of
20 per cent in the face of compelling evidence to the contrary.
(5) Section 207A:
(a) the Tribunal deducted 10 per cent from their award when such deduction
was not sought in the Respondent’s response and when no notice had been given
that such an issue was to be raised; and (b) in making that deduction the
Tribunal failed to take into account, or give reasons for not taking into
account, particular aspects of the evidence.
(6) The
Tribunal failed to make an award on what is described in the Notice of Appeal
as “stigma damages”, when the established facts merited such an award, or to
give adequate reasons for not making such an award.
9.
However, at the outset of the hearing of the appeal Mr Ibekwe
informed us that the purpose of the criticism of the Employment Tribunal’s
decision as to unfair dismissal was to undermine and thereby to seek to reduce
the Tribunal’s conclusion that the Claimant had contributed to her dismissal to
the extent of 20 per cent. It was not his case that, if her grounds
of appeal against the unfair dismissal decision succeeded, the Claimant would
obtain for unfair dismissal any different or increased remedy – save as to the
20 per cent deduction – but that, if the Employment Tribunal had considered
substantive as well as procedural unfairness, the extent of her contribution
would or could have been found to have been non‑existent or at a lower
level. He accepted, readily and without any form of persuasion, that to take
up substantial time in arguing grounds of appeal which, if successful, would at
maximum produce an additional £227.20 for the Claimant was disproportionate.
10.
He took the same view as to the section 207A aspect of the appeal.
He told us that the extent of the contribution – and, we think, the
section 207A reduction – would be of importance if the Claimant’s appeal
against the rejection of her discrimination and/or victimisation claim were
successful, for, although no statutory reduction for compensation for
contributory fault could be made for discrimination or victimisation where the
act of dismissal constituted discrimination or victimisation, the Tribunal
would have to consider what compensation it was just and equitable to award for
compensation for victimisation and might be adversely affected in carrying out
that exercise by the assessment of contributory fault; if discrimination or
victimisation were established, damages would be at a level which would,
according to Mr Ibekwe, or, we acknowledge, certainly could, far exceed the
sums awarded for unfair dismissal.
11.
Other than for that reason, Mr Ibekwe did not seek to pursue his
arguments as to unfair dismissal or contributory fault, or his arguments as to
the deduction made by the Tribunal under section 207A. Those arguments,
he said, were only worth pursuing if compensation were potentially to be at a
higher level than that so far awarded.
12.
Mr Ibekwe also accepted that what he had described as “stigma
damages” could not be awarded for unfair dismissal, at least in the circumstances
of this case.
13.
In those circumstances, we proposed to Mr Ibekwe and
Ms Musgrave that it would be both pragmatic and sensible to hear the
submissions of both sides on the grounds of appeal against the Tribunal’s
dismissal of the Claimant’s discrimination and victimisation claims first.
Mr Ibekwe confirmed that, if we rejected those grounds, he would not seek
to pursue his other grounds of appeal, and the appeal should be dismissed; but,
if we were to accept his arguments either on discrimination or victimisation –
or, of course, both – he would, for the reasons we have set out, wish then to
argue the remaining grounds of appeal. Both counsel agreed to that course; we
therefore heard the submissions of both on discrimination and victimisation;
and we now give our Judgment upon those submissions.
Race discrimination
14.
The Claimant’s pleaded case on this aspect of her claim was set out in
paragraph 2.3 of her ET1 in these terms:
“The claimant asserts that the respondent treated her less
favourably on the grounds of her race. The acts of discrimination relied upon
relates [sic] to the disciplinary allegations that the claimant claimed and
received pay for hours which she had not actually worked. A further act of
discrimination relied upon, is that the respondent used the claimant’s written
difficulties of the English language as a pretext for reaching the decision
they made that the claimant was guilty of gross misconduct.
The claimant would rely upon her other work colleagues as
material comparators.”
15.
The Tribunal said, at paragraphs 55‑58 of their Judgment:
“55. Dealing with the claim for direct discrimination, the
unfavourable treatment relied upon is the dismissal but unfortunately the
Claimant has led not one jot of evidence in chief to say that she considered
that she had been the subject of discrimination on racial grounds. The only
mention of race in the case is the complaint by one of the tenants that might
have had racial connotations but there is nothing in that occurs subsequently
that raises a case for the Respondent to answer that the Claimant had been the
subject of less favourable treatment (dismissal) on racial grounds.
56. The Claimant was indeed subject to a disciplinary process
which is open to the criticisms that we have made and that has resulted in a
finding of unfair dismissal but that is very far from saying that the process
was motivated or caused or connected with the Claimant’s racial group in any
way.
57. In submissions it was suggested that we should look at
actual comparators who were other white employees. No evidence was led by the
Claimant on the issue of comparison and therefore no actual comparator was
actually mentioned to the Tribunal. However if one attributes the same
characteristics to a hypothetical comparator where residents had made a
complaint the Tribunal unhesitatingly comes to the conclusion that the
individual would have been the subject of investigation and possible
disciplinary action.
58. Accordingly, there is no case for the Respondent to answer
on direct race discrimination and the claim is dismissed.”
16.
At first blush it seemed to us that there might be thought to be an
inconsistency between that pleaded case and the Tribunal’s description of the
dismissal as the unfavourable treatment relied upon, a thought perhaps fostered
by paragraph 7.3 of the Notice of Appeal; but Mr Ibekwe allayed our
anxieties as to that. His complaint to the Tribunal was that the Claimant’s
dismissal was partially based upon the allegation that she had claimed pay for
hours not worked; the Tribunal ought, he submitted, to have found that that
allegation was, and therefore the dismissal that followed from it was,
discriminatory. He put his case in this way: the Claimant was the only black
support worker in the unit; she made the same claims for pay as her colleagues;
none of her colleagues was the subject of disciplinary action or dismissal; but
the Claimant was. From this, the Tribunal ought to have drawn the inference
that there had been or may have been racial discrimination and ought to have
looked for an explanation from the Respondent; the Tribunal wrongly rejected
the discrimination claim on the basis that it was unsupported by evidence.
17.
The language issue arose, Mr Ibekwe submitted, from the episode
described in the Claimant’s witness statement in which Mrs Kilbey of the
Respondent interpreted a log entry made by the Claimant on 1 August 2009,
which read:
“Both Lil and Emily are here this morning when I arrived, about
11.45am Emily, Mum and Dad arrived. They came to take her out to lunch.”
18.
This was interpreted as being inconsistent with the Claimant’s claim to
have been at work from 11.00am. The Claimant’s case was that Mrs Kilbey
was trying to use the standard of the Claimant’s English language skills
against her. Mrs Kilbey, we are told, accepted in evidence that she had
misinterpreted what the Claimant had written; Mr Ibekwe argued that mis-interpretation
was not an acceptable explanation and that Mrs Kilbey must have acted
deliberately and discriminatorily.
19.
Ms Musgrave drew our attention to the absence, in any of the
Claimant’s evidence, of any suggestion that these events were based on race or
constituted discrimination. Her allegations, she submitted, were unsupported
by evidence; her pleading was not evidence; and it was for the Claimant to
prove facts upon the basis of which an inference of discrimination could be
drawn; but the Tribunal found that she had wholly failed to do that, and the
Respondent’s witnesses, she told us, were not cross‑examined on the basis
that any part of their investigation of the Claimant was discriminatory (a
description of events with which Mr Ibekwe took issue and which, for that
reason, we will set aside).
20.
As to the language point, Ms Musgrave referred to paragraphs 16 and 17
of the Judgment, in which the Tribunal found that the Claimant had a good
command of English; there was, she submitted, on the face of what had occurred,
nothing to indicate race discrimination.
21.
There is no suggestion that the Tribunal misunderstood the law.
Mr Ibekwe does not advance any errors of law made by the Tribunal beyond
what we have, in summary form, set out; to our suggestion that his case was, in
reality, that the Employment Tribunal’s view of the facts was perverse or
“wrong”, to use a word which he used, he responded, in effect, that the
evidence to which we have referred contradicted the Tribunal’s findings.
22.
We do not accept Ms Musgrave’s argument that, in order for
discrimination to be established, it is necessary for the alleged victim of that
discrimination to say in a witness statement or orally that he or she believed
that what had been done or not done by the alleged discriminator constituted
discrimination. An inference may be drawn from the primary facts set out in
the evidence of the victim or indeed from elsewhere, whether or not the victim
expressly states that particular facts constitute or evidence discrimination.
The Tribunal were, in this case, entitled to comment, however, on the fact that
the Claimant did not herself say that she thought she had been subjected to
race discrimination by the Respondent (although she did complain that she had
been treated in a potentially racially discriminatory manner by one or more of
the Respondent’s service users); but they did not base their decision on that
alone. At paragraph 57 the Tribunal correctly asked themselves whether
the position would have been different in the case of a hypothetical white
comparator and answered that question unhesitatingly that that comparator would
have been treated as was the Claimant. The Tribunal were, in that paragraph,
(a) asking themselves the correct question and (b) answering that question on
the basis of the evidence. Their conclusion was one of fact, and indeed one which
has not been overwhelmingly, or indeed at all, demonstrated to be a conclusion
that no reasonable Tribunal could reach or which is otherwise perverse.
23.
We have had some difficulty in understanding fully Mr Ibekwe’s
point about the Claimant’s use of language. To leap to a conclusion, even
deliberately, as Mr Ibekwe contends, about misconduct because of the
imperfection of someone’s use of language is not of itself an indication of
discrimination; as Ms Musgrave pointed out, the same problem could arise
in the case of the use of language by anyone of any racial characteristic to
whom English was not a first language and indeed, unhappily, in the case of
many people for whom English is their only language. The Tribunal were
entitled to regard none of the points raised by Mr Ibekwe as giving rise
to an inference of race discrimination and to conclude that a white comparator
would have been treated as the Claimant was in respect of the case of
discrimination that was put before them, as we have described it, which, when
the Tribunal’s Judgment is read as a whole, it can be seen they plainly had in
mind.
24.
For these reasons, the appeal against the Tribunal’s dismissal of the
Claimant’s race discrimination claim fails.
Victimisation
25.
The Claimant’s case under this head of claim is set out in her ET1 in
these terms:
“The claimant asserts that she made protected acts by her
complaints of racial discrimination or harassment against the respondent and a
client.
The detriment claimed by the claimant is her dismissal and non
payment of notice.”
26.
Mr Ibekwe told us that he put the case forward to the Tribunal on
the basis of two letters or reports made to the Respondent by the Claimant: the
first is a letter dated 7 March 2009, reporting that a service user
may have resented being in the Claimant’s company on the basis of her
appearance or race; the second is a report on 20 October 2009
referring to the above and to another service user who commented on the
Claimant’s colour.
27.
It is agreed that these two documents were relied upon as the protected
disclosures for the purpose of the claim that the Claimant had been
automatically unfairly dismissed, pursuant to section 103A of the 1996
Act. Ms Musgrave contends that, when Mr Ibekwe withdrew the claim
under section 103A, as recorded in paragraph 8 of the Tribunal’s
Judgment, he also withdrew reliance on those documents for the purposes of the
Claimant’s victimisation claim; therefore there was no remaining victimisation
claim, and the appeal against the dismissal of that claim must fail on that
basis in any event. Mr Ibekwe tells us that he made no such concession.
28.
We have not had any sight of any notes of the Employment Judge or his
colleagues, nor have they been asked any questions as to this issue.
Ms Musgrave has not told us that she has a clear note of the concession on
which she now relies. In these circumstances, we do not regard it as right to
go beyond the concession as to the automatically unfair dismissal claim
recorded by the Tribunal at paragraph 8. We point out that the Tribunal
did not reject the victimisation claim on the basis of any such concession but
addressed the issue of victimisation by referring to section 2(1) of the Race Relations Act 1976,
which they set out at paragraph 48, and by addressing that claim on its
merits at paragraph 59.
29.
When, however, we turn to paragraph 59, we find another dispute about
concession. Paragraph 59 is in these terms:
“Turning to victimisation on racial grounds, the Claimant’s
representative conceded that there were no facts alleged in this case which
fell within Section 2(1)(a)‑(d) of the Act. Instead it was
suggested to us that the case lay in the words ‘by reason that the
discriminator knows that the person victimised intends to do any of those
things or suspects that the person victimised intends to do any of those things
or suspects that the person victimised has done or intends to do any of them’.
This is an unattractive submission wholly unsupported by the evidence. No case
on victimisation has been made out and it is dismissed.”
30.
Mr Ibekwe tells us that he did not make the concession set out in
that paragraph; he says that he would not have done so because he had a clear
argument open to him that the two acts of victimisation relied upon, the
dismissal and the dismissal without notice (in alleged contrast to the terms of
the Respondent’s disciplinary procedure, to which we will come) occurred
because the Claimant had complained to the Respondent about race discrimination
towards her by service users, which fell squarely within section 2(1)(c) of
the Act. He accepts that he was persuaded by questions from the Tribunal to
rely on the alternative words in section 2(1) set out in
paragraph 59, but only as a “fall‑back position”.
31.
Ms Musgrave tells us, though, that the Tribunal’s description of
Mr Ibekwe’s concession was factually accurate; and she draws our attention
to the absence in Mr Ibekwe’s Notice of Appeal, amended Notice of Appeal
and skeleton argument to any suggestion that the Tribunal’s description of this
concession was in error.
32.
In this case, too, we have no notes from the Employment Judge, no notes
from the parties or their representatives and no answers to any questions put
to the Tribunal; and, in our judgment, we should and indeed must proceed on the
basis that Mr Ibekwe did make the concession recorded by the Tribunal. He
has not sought to argue before us that he should be entitled to resile from
that concession, if made. He has submitted that the Tribunal ought to have
concluded that the Respondent knew or suspected that the Claimant intended to
do acts falling within section 2(1)(a)‑(d) in that she might have
made another report of discriminatory treatment by a service user or users, or
complained more formally of discrimination; but he has not, save for the
history to which we have referred, pointed to any evidence that supports that
assertion, and in our judgement the Tribunal were entitled to reach the
conclusion that they expressed in paragraph 59.
33.
It is true that the Tribunal did not expressly refer to the dismissal
without notice, as opposed to the dismissal, as an act of victimisation; but
there is nothing to suggest that the Tribunal were unaware of the acts of the
Respondent which were relied upon as less favourable treatment. It was not
necessary for them to spell out the specific acts of victimisation that they
were asked to consider; they simply found that there was no evidence to support
the case that the acts of victimisation alleged occurred by reason of the
matters set out in section 2(1) of the 1976 Act. That too was a factual
conclusion for them. Mr Ibekwe’s argument amounts to an attempt to persuade us
that the Tribunal ought to have made findings more favourable to the Claimant;
but as an appellate Tribunal we can neither find facts nor review findings of
fact; we can only intervene if a finding of fact is demonstrated to have been
perverse. Mr Ibekwe did not submit that there was perversity in
paragraph 59 of the Tribunal’s decision, and none has been demonstrated.
34.
We should add that Mr Ibekwe made a submission regarding the words
of sub‑paragraph (m) on page 6 of the Respondent’s disciplinary
policy, namely:
“Where it is considered that gross misconduct has occurred and
dismissal is the appropriate action to take, the employee will be dismissed
with appropriate notice, or pay in lieu of notice. The decision to dismiss
will be taken by the panel. The employee will be informed in writing of the
decision, stating the date on which the employment ceased and the right of
appeal.”
35.
He argued that these words had the effect that the Respondent was
contractually bound to give an employee notice of dismissal or pay in lieu of
notice whatever the gross misconduct that they believed to have occurred, of
any kind. The Tribunal, he submitted, ought to have had that in mind in
deciding whether, in dismissing without notice, the Respondent had victimised
the Claimant. We struggle to see why, if a dismissal of the Claimant without
notice was a breach of contract because, assuming the disciplinary policy to be
contractual, the Respondent was contractually bound not summarily to dismiss
the Claimant without pay in lieu of notice, that assists or adds to the
Claimant’s victimisation case. Niceties of construction of a document which may
or may not have been of contractual force do not, in our judgment, assist the
Claimant’s argument. We notice that the Tribunal made no reference to this
point, which finds no place in Mr Ibekwe’s skeleton argument. We intend to say
no more about it; it is not necessary for us to reach any conclusions as to the
correct construction of sub‑paragraph (m) of the disciplinary
policy, beyond saying that a construction which has the effect that an employer
cannot, without being in breach of contract, summarily dismiss an employee
however serious the gross misconduct established against him or her, is
unlikely to be correct. That tentative view has, however, no relevance to our
decision on this appeal.
Conclusion
36.
Accordingly, for the reasons we have set out, the appeal against the
Tribunal’s conclusions as to discrimination and victimisation fails. As
Mr Ibekwe accepted, in the circumstances we have outlined above, none of
the other grounds of appeal are now to be pursued. The appeal is therefore
dismissed.
