Appeal No. EAT/659/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 7 June 2000

Before
HIS HONOUR JUDGE J ALTMAN
MR D J JENKINS MBE
MRS D M PALMER

1.	LONDON BOROUGH OF HAMMERSMITH & FULHAM	APPELLANTS

2.	MR G ALLTIMES

MS L EZEONYIM	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR ADRIAN LYNCH QC
Policy & Administration Department
Legal Services Division
London Borough of Hammersmith & Fulham
Town Hall, King Street
London
W6 9JU	
For the Respondent	MISS SARAH MOOR
(of Counsel)
Messrs Thompsons
Congress House
Great Russell Street
London
WC1B 3LW	

JUDGE J ALTMAN

1	This is an appeal from the decision of the Employment Tribunal sitting at London (North) on three days at the end of March 1999.  It is the appeal of both employer and the Director of Social Services Mr Alltimes from the finding that the Respondent’s claim for victimisation and race discrimination succeeded.

2	The Appellant argues that the basis upon which the Employment Tribunal appear to have rested its entire decision, resulted from a misconstruction of the harassment procedure of the Appellants so as to lead to a fundamental error of law which undermines the entire decision.

3	The factual background to what took place is to some extent intricate.  The Respondent has worked for the Appellants since 1995.  She was described by the Employment Tribunal as being of Nigerian ethnic origin.  She worked at a Centre for the mentally and physically disabled, as it was described.  Mr Hutchings was her manager, and Mr Alltimes the Director of Social Services.

4	The Respondent had a colleague who brought a complaint of racial discrimination against the Appellant and the Respondent gave evidence at the hearing.  As a result of some information from the documents in that hearing the Respondent asked to see her Personnel file.  In about February 1998 she became thereby aware of a memorandum dated February 1997 written about her by Mr Hoskins to the Human Resources section of the Appellants seeking to refer the Respondent to the Occupational Health Department.  It is not necessary to into the content of that document.  The Employment Tribunal recorded that the Respondent became very upset by its contents and having seen it on 4 February 1998 she wrote to Mr Alltimes to complain.  She later complained of personal statements by Mr Hutchings being prejudicial to her and being racist.

5	The Respondent then made an informal complaint about Mr Hutchings compilation and use of this document under the Appellant’s harassment procedure alleging harassment and victimisation.  At the same time, on her behalf, a Union Representative complained that the memorandum was used without her consent and handed to the Appellants’ representative in the case of the Respondent’s colleague.  

6	Jumping ahead, and after a number of exchanges between Mr Alltimes and the Respondent, on 16 March the Respondent made a written complaint of harassment by Mr Hutchings making five separate allegations of words and conduct by him including the memorandum.  

7	Mr Alltimes handled the formal complaint under the harassment procedure.  In that letter of the 16 March the Respondent made a complaint of racial discrimination, in addition to the harassment complaint that appears, at least formally, to have been all that had preceded it up to that date; although it seems that reference to the belief in its racial motivation may have been established before then.

8	The Employment Tribunal had to deal with both the substantive actions of Mr Hutchings and the procedural actions of Mr Alltimes.  As to the allegations against Mr Hutchings there was between the Respondent and Mr Hutchings a clear issue of credibility raised by both parties in evidence and submissions.  In addition Mr Hutchings gave an explanation as to how the particular contents of the memorandum came to be there which the Employment Tribunal accepted.  The Employment Tribunal rejected the complaint against him and they then considered the actions of Mr Alltimes.  It is perhaps worth noting in the light of what followed that on 9 February the Respondent wrote to Mr Hutchings ahead of their routine formal supervision in a way that was described by the Employment Tribunal in paragraph 9 of their decision as follows: -

“She suggested that she should have the supervision with the Deputy Manager until the complaint had been fully investigated.”

9	What procedure did Mr Alltimes follow?  On 9 February he wrote, treating the letter of 4 February as an invocation of the harassment procedure, and arranging for temporary alternative management under a Miss McCrudden instead of Mr Hutchings.  On 11 February the Respondent confirmed expressly that she was proceeding under the harassment procedure.  That procedure was described in paragraph 14 of the decision as follows: -

“We were particularly referred to the process of the investigation contained in paragraph 9.  The heading in this is “managing both parties during the investigation stage”. 

9.1 states

“9.1	Where the complainant and the alleged harasser work in close contact, the employing Director can in consultation with the HRS Consultant and if satisfied that the complaint is of a nature where it may be difficult for both parties to continue to work together as usual, consider;

-	transferring the alleged harasser(s) for the period of the investigation;
-	suspending any of the parties from duty on full pay during the period of the investigation as a means of:
(a)	relieving the stress and pressure on both parties,
(b)	preventing the risk of  physical assault, victimisation or intimidation 
(c)	ensuring that both parties are treated fairly;
-	reorganising or reallocating work so as to avoid the need for contact between the complainant and the alleged harasser.”

Any action taken should not unfairly disadvantage the complainant.  There is no intention that there would be any inherent disadvantage to either party built into this procedure, but it is recognised that particular safeguards are necessary to protect a complainant.
If a decision about suspension, transfer or remaining in the workplace has been made, the alleged harasser must be informed of the arrangements being made to investigate the complaint and of the possibility of disciplinary action following the investigation, by the employing Director.”

10	The Respondent asked the Appellants, through Mr Alltimes to transfer Mr Hutchings out of the department.  The finding of the Tribunal set out at paragraph 16 is as follows: -
“Mr Alltimes was asked by the Applicant to transfer Mr Hutchings during the period of investigation but he failed to do that but he did offer to transfer Ms Ezeonyim instead.  He did not consider whether either or both of the parties should be suspended meanwhile.  Mr Alltimes set about establishing an investigating team under the provisions of the harassment procedure and following criticism that had been contained in the decision of the Tribunal on Mr Andeaobe’s case, he appointed Doreen Redwood, Head of Strategic Planning who was black to be the investigation officer; she was scheduled to leave her employment at the end of March.  Bridget Holden who was the designated personnel officer was also on the panel.”

11	Again the Respondent asked the Appellant to reconsider transfer and asserted that procedures had not been followed.  As the Tribunal said in paragraph 20 the trade union representative wrote asserting that the Respondent should not have to have any hearing or interview whilst she was still in the same workplace as Mr Hutchings as this was contrary to the procedures and asking could that please be remedied.

12	On 25 February, a few days later the investigator wrote to both Mr Hutchings and the Respondent proposing separate interviews.  On 26 February Mr Alltimes notified the union representative that he had arranged management by the deputy manager save for health and safety matters and confirming that the Respondent would not have to take instructions direct from Mr Hutchings.  On the following day the Respondent complained that Mr Hutchings was not being removed.
13	Having made the point about procedure preventing interviews, the union representative made the same point to the investigator and asserted that there was still a matter of procedure to be resolved before any investigation could start.  However, the investigator did speak to the person to whom the original memorandum from Mr Hutchings had been sent and interviewed Mr Hutchings.  On the 9 March Mr Alltimes responded to the union’s representation that he had not followed procedures and that is referred to in the decision of the Tribunal in paragraph 30: -

“He could not understand why the Applicant and her Union Representative were reluctant to attend the investigation interviews and as he had not had any detailed information he did not think it appropriate to change his view on the procedures or the actions under them.”

14	On 10 March the Respondent was asked to attend interview and the date was kept open and she was told that it would be assumed that, if she did not attend, she did not wish to do so.  On 16 March there was then the letter to which I referred from the Respondent setting out the various other grounds of harassment which I do not need to set out.  In reply the Respondent wrote saying amongst other things, 

“since you have refused to transfer the manager despite having other options namely suspension of either or both parties on full pay, you leave me with no option but to address the matter at a higher level.”  

Later, she said, in addition to this, 

“why do you not suggest that Mr Hutchings himself voluntary transfer given that there is another manager present to run the Centre.”  

15	She then raises the allegation of racial harassment in specific terms.  Having said that, on the very next day her Union Representative made it clear that she would not attend the meeting due to “the ongoing procedural dispute which had not been resolved”, again asserting the need to separate the complainant and the alleged harasser.  Following that on 7 April and as a result Mr Alltimes wrote to the Respondent setting out the results of the investigating team and concluding with the words 

“on the basis of the information provided together with your refusal to meet with them no evidence of harassment can be found and the investigation is therefore terminated.”

16	The Employment Tribunal, having set out its findings of fact, which I have summarised, concluded with the following paragraph: -

“It was difficult for Mr Alltimes to know exactly what the Applicant was complaining about and Mr Alltimes has under his control some 1300 employees and the Applicant refused to give details until she was physically separated from Mr Hutchings and that is why Mr Alltimes decided that this matter could not be proceeded with.”

17	The Employment Tribunal in Mr Alltimes case then made a very clear finding of racial discrimination and harassment in the following way.  

“Mr Alltimes failure to operate the protection of the harassment procedure was:
because of her race;
because she had given evidence against the First Respondent at the earlier Tribunal case;
because she had invoked the harassment procedure.”

18	There was therefore on the face of it an issue between the parties as to whether or not the actions of Mr Alltimes constituted a failure, however described, to operate the protection of the harassment procedure pending an investigation into the Respondents complaints.  The Appellant contends that the Employment Tribunal never sought to resolve that issue but incorrectly assumed that there was a failure and furthermore made effectively an incorrect finding of such a failure.  

19	Having set out the submissions of the parties to the Employment Tribunal, and having in paragraph 16 described the fact that Mr Alltimes did not transfer Hutchings as a “failure” to do so, and having referred in paragraph 17 to the letter from the Respondent complaining about the procedures by using the words that she “pointed out that the procedures had not been followed” and having directed themselves to statute and to the two important cases on the subject, the Tribunal made their findings in paragraph 61.  In their encapsulation of the finding in the case of Zafar –v- Glasgow City Council (1998) in paragraph 59 the Employment Tribunal appear to set out a quotation which in itself, when read literally, does not appear to reflect any particular passage in that case, but we have no doubt that the Employment Tribunal had those two well known cases well in mind nonetheless.  The finding of the Tribunal was set out in the following terms: -
“The finding that we have made that Mr Alltimes did fail to follow the First Respondent’s harassment procedures lead us to draw an inference that he did so because of the Applicant giving evidence in the previous Employment Tribunal case on behalf of Mr Andeaobe and also on the grounds of her race.  Mr Alltimes agreed in evidence that there was institutionalised racism in the Council.  It is clear that Mr Alltimes did not consider the Applicant’s complaint of racial harassment with the seriousness that it deserved.  The harassment procedures which we refer to, set out clearly what should be done in circumstance where a complaint is made.  The harasser should be removed from the place of work during the time that the investigation is being carried out.  This was not done and as a result of this the Applicant suffered a detriment within the meaning of the Race Relations Act.  We are satisfied that Mr Alltimes would not have treated a complaint by another employee of harassment in this manner.”

20	On behalf of the Appellant it is argued first of all that the Employment Tribunal appear to have found both that there was a binding requirement within the harassment procedure for the removal of the alleged harasser during the course of the investigation and that there was a failure to follow that procedure.  Secondly, Mr Lynch submits that the finding of racial discrimination was based exclusively upon the Employment Tribunal’s belief of that failure to follow the procedure.

21	On behalf of the Respondents, in submissions for which we are grateful for their combination of comprehensiveness and succinctness, it was argued on behalf of the Respondent that there was no error of construction, and that even if there was, by the application of the case of Dobie to which I later refer, the decision can still stand.  There is no doubt that the harassment procedure is a permissive procedure and does not on its face require any actions to be taken, although of course it may give rise to consequential arguments as to what is desirable and reasonable in a particular case.  It says that the employing director “can” consider certain steps and states the need to inform the alleged harasser “if” a decision about those steps has been made.  

22	It is said that the process of drawing an inference requires the establishment of the primary facts from which such inference is to be drawn and that those primary facts are solely confined to the finding of obligatory procedure that was not followed.  We are asked on behalf of the Respondent to read that paragraph 61 differently.  It is said that when the Employment Tribunal spoke of a failure to follow the procedure they were really meaning that in the circumstances of this case the way in which Mr Alltimes handled the matter was wrong, and that he therefore failed to do what a reasonable non discriminatory employer would do, which is to follow the provision for transfer of the alleged harasser.  Miss Moor submits that just because the Employment Tribunal described what should be done as being that the harasser “should be removed” does not mean to say that the Employment Tribunal were misdirecting themselves but were rather expressing a view as to what should have happened in this case.  It is argued that their having come to that conclusion and having drawn into that summary of their judgment their previous findings of fact, the inference of discrimination was one which was reasonably open to them.  In support of that it is pointed out that in the middle of paragraph 61 are two sentences which appear on their face to raise separate matters, first the concession that there was institutionalised racism in the Appellant Council, and secondly that Mr Alltimes did not consider the complaint of racial harassment with a seriousness it deserved.  It is suggested that the latter is particularly relevant to the failure of Mr Alltimes to amend the procedure he had adopted in the light of the fresh complaints made by the Respondent against Mr Hutchings during the process of the investigation.  

23	We cannot accept those arguments.  It is not clear as to where the Employment Tribunal were referring by mention of the matters of institutionalised racism and a lack of seriousness.  It may have been that they were seeking to refer to other reasons for their conclusion.  However, if that were the case they did not say so, whereas they had specifically related their findings within that paragraph to a failure to follow a procedure.  We do not know that it would make equal sense if those two features were cited by the Tribunal as their view of a possible explanation as to why Mr Alltimes did not follow the proper procedure in this case.  It cannot be said on a reading of that decision that those matters constituted part of the factual basis upon which an inference was drawn or based.

24	It is urged upon us that there were a large number of factual findings within the decision which could well have formed part of the Tribunal’s conclusions, and that their not being included specifically is consistent with the general way in which a Tribunal would express itself by not having to repeat everything twice within a decision.  Because of the order that we propose to make, it does not seem to us appropriate to specify particular aspects of the findings which it is contended may or may not form the factual basis for an argument for inference.  Suffice it to say that that seems to us to be a two-edged argument.  It may be that the reason they were not referred to in the final paragraph is that those facts also formed part of the decision. Yet, the opposite may be the truth.  They may not appear at the end because they did not form part of the decision, having been rejected by the Tribunal.  We do not know, sitting here reading the decision.  We cannot second-guess what was in the mind of the Employment Tribunal beyond what they say in their decision in clear terms.  

25	It really goes beyond that, because as well as looking carefully at the words used by the Employment Tribunal as Mr Lynch has urged us to do, we have stood back and looked at the general shape of the decision and taken an overall view of it, for pedantic construction of an Employment Tribunal’s decision is very often not the way in which to find out the real reasoning behind it.  We are driven to the conclusion that if the Employment Tribunal had come to the conclusion that it was not simply the clear cut failure to follow a procedure that formed the basis for their drawing an inference of discrimination, but also the way in which Mr Alltimes had approached his discretion in that respect his reasons for it and his reasons against it, that the whole shape of the decision, particularly towards the end, would have been different.  It would have hinted or referred to those aspects.  In the absence of that it seems to us that not only the form but the real substance of that decision lead us to the conclusion that, first, the inference of race discrimination in this decision was based solely upon a failure to follow the harassment procedure, and secondly that that finding of a failure to follow the harassment procedure was based upon a fundamental misapprehension as to the nature of that procedure.  In that the procedure was in fact not binding but gave a discretion, the Tribunal, wishing to analyse whether an inference was to be drawn, would inevitably introduce a stage of assessing the reasoning of Mr Alltimes.  That is a stage which was missing from the Employment Tribunal’s decision because they relied solely on a formal breach of the procedure.

26	There was therefore an error of construction.  We have been helpfully referred to the case of Dobie –v- Burns International Security Services (UK) Ltd (1984) ICR 812 and in particular to the judgment of Sir John Donaldson, Master of the Rolls at page 818, in which he said 

“once you detect that there has been a misdirection, and particularly that there has been an express misdirection of law, the next question to be asked in not whether the conclusion of the Tribunal is plainly wrong, but whether it is plainly and unarguably right notwithstanding that misdirection.  It is only if it is plainly and unarguably right notwithstanding a misdirection that the decision can stand.  If the conclusion was wrong or might have been wrong, then it is for an appellate tribunal to remit the case to the only tribunal which is charged with making findings of fact.”  

27	We are asked by Miss Moor on behalf of the Respondent to consider that the decision was plainly and unarguably right notwithstanding the misdirection.  We are asked to look at the findings of fact within the body of that decision.  In effect what that means is that we are being asked to look at all the findings of fact, to treat them as the primary facts, and to ourselves draw an inference from them.  It seems to us, however, that the findings of fact do not point sufficiently clearly and unambiguously in a single direction to lead us to conclude that the final decision was plainly and unarguably right, notwithstanding the misdirection that we have found.  To use a phrase I have already referred to, if we were to do that in this case, we would be second-guessing the judgment of the Employment Tribunal.  We find therefore that the decision of the Employment Tribunal was based upon a misconstruction of the single document which formed the single basis from which, on the face of the decision they drew the inference of discrimination.  We have come to the conclusion that the Employment Tribunal erred in law and the appeal must be allowed.

28	Whilst giving a decision in some detail as to the history of this matter we are wholly unqualified to make any judgment on the merits lying behind the case about the dispute between the parties.  We were asked to look at all the facts and come to a conclusion about it.  In saying that we cannot do that however, we wish it to be made clear that we are not to be thought to be positively denying that the arguments that have been addressed to us on the basis of those facts have any force.  It is simply that the arguments cannot be taken here.  The place for them to be considered is the Employment Tribunal because it is impossible for us to say on a reading of the decision which way it would have gone had the Employment Tribunal approached the matter on the basis of the true construction of the procedure.
29	For completeness I record that we were also referred to the judgment of Lord Justice Peter Gibson in Chapman and Another –v- Simon (1994) IRLR 129 paragraph 41.

30	Accordingly we allow the appeal and remit this case to be heard before an Employment Tribunal freshly constituted by a Chairman and members other than those who presided over the decision that was under appeal.