Appeal No. UKEAT/0758/04/SM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 July 2005
Judgment delivered on 16 September 2005

Before
HIS HONOUR JUDGE ANSELL
MR P GAMMON MBE
MR P M SMITH

MISS A MILLER	APPELLANT

CRIME CONCERN TRUST LIMITED	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MS NATASHA SIVANANDAN
(Representative)

For the Respondent	MR JAMES PRETSHELL
(Of Counsel)
Instructed by:
Messrs Thring Townsend
Solicitors
6 Drakes Meadow
Penny Lane
Swindon
Wilts
SN3 3LL	

SUMMARY

Victimisation – Tribunal failed to consider whether discriminator suspected that victim was going to make a complaint and they failed to consider the cumulative effect of allegations she was making.

Redundancy – alternative employment – possible bias in one member of interviewing panel being a manager against whom a discrimination complaint has been made.

HIS HONOUR JUDGE ANSELL

1.	This is an appeal against a Decision of a London Central Tribunal who in a Decision promulgated to the parties on 27 July 2004 dismissed all the Applicant’s claims namely for direct race and sex discrimination, race and sex victimisation, unfair dismissal, public interest disclosure, automatic unfair dismissal under Section 103(1) of the Employment Rights Act 1996 and breach of contract.  Permission to appeal was given at a Preliminary Hearing held on 18 February 2005 (Judge Altman presiding) who allowed the appeal to proceed on 3 main areas namely:

(1)	 in relation to victimisation whether the Tribunal had properly identified and considered all the documents argued to be protected acts particularly two documents in the bundle the first headed “Points to be discussed at a meeting on Friday 30 January” and the second document headed “Further Concerns” purporting to be a memorandum by Jan Smith dated 31 January 2003.  There was also before the Tribunal a lengthy memorandum from the Appellant to Anita Wilkinson copied to Jan Smith dated 31 January in which she set out a list of concerns about staff matters and referred to one incident being “ just one of a number of complaints that I have in regards to my line management by Jan Smith” 

(2) 	having identified a comparator and found a difference in treatment for the purposes of race and/or sex discrimination whether the Tribunal properly explained how they were able to accept the Respondent’s explanation for the apparent difference in treatment.

(3)	having found that the reason for dismissal was redundancy whether they properly considered the issue of fairness particularly in relation to the issue of the consultation between employer and employee.

2.	The background facts are that the Respondents are a national charity established to promoted crime prevention and community safety and they manage projects and works in partnership with bodies such as the police, the probation service, local authorities and local communities.  The Appellant started as a mentor in 1999 in a voluntary capacity and was employed from 11 September 2000 as a part-time mentoring coordinator at the Brent Monitoring Plus.  On 13 August 2001 she began to work full-time as a project coordinator and became a protect manager under a fixed term contract from 1 May 2002, initially on probation but was confirmed in post on 3 October 2002.

3.	During 2002 the Appellant voiced a number of concerns about incidents or issues in her employment and had raised a number of concerns with her immediate manager Mr Jan Smith.  She alleged that in October 2002 she had sent a letter headed “Grievance and Serious Complaints” to Anita Wilkinson, a senior manager and shown a copy to Jan Smith.  The document referred to race and sex discrimination and other complaints.  The Respondents’ witnesses denied receiving it at the time and Mr Smith said that he first saw the letter at the earliest in March 2004 in preparation for the hearing.  The Tribunal’s findings were that the letter was produced several months after the date shown in order to support the Appellant’s complaints.

4.	On 20 October 2002 a “three-way” meeting was convened by Jan Smith to deal with complaints Ben Wing had raised against the Appellant, his manager.  The minutes are at page 368.  In the course of this meeting, the Applicant raised her own complaints of her own and the minute records:

“Black and female, grievance with all staff – Vauxhall interferes and undermines good practice, grievance issues, some of these are still here.  People should look at own conduct.  Spoken very honestly, not my … issue around their colour – no intention of being racist.  Not how I talk and I respond, undermined my own practice – race and gender are issues.  I will take it formally going to the union.”

5.	The Tribunal found that at that stage the Appellant did refer to issues of race and sex orally but went on to find that Mr Smith’s understanding that those references were an explanation from the Appellant about her management style as being particularly that of a black woman.  The Appellant did not take these matters forward to her union.

6.	On 16 December 2002 the Appellant sent a memo to Jan Smith which began as follows:

“Industrial Tribunal – it may be necessary for me to take the following matters further so they can be resolved as I see this as a clear case of discrimination, unfair treatment.  I have consulted an employment law agency on this matter.”

She then set out four areas of complaint which dealt with separate issues concerning staff where she alleged that her authority or decision making had been countermanded.  The Tribunal found that Respondents took no action on this memo and accepted Jan Smith’s explanation that the four staff issues raised therein were on-going issues which he had already discussed with the Appellant and in relation to one matter he discussed subsequently with her.

7.	There are two further documents which were before the Tribunal although they are not referred to in their Decision.  Firstly, a document headed “Points to be discussed at our meeting on Friday 30 January 2003” in which point 4 was set out as “Personal Support in Management Role from Team and Management (Ethnicity and gender).  Secondly a note of a telephone conversation made by Jan Smith in which she says as follows:

“In a telephone conversation on Friday 30 January accused myself, Keith Pertwain and Ben Wing of being racist.  However no specific instant was related to me.” 

It appears that Mr Smith had arranged to see the Appellant on 6 February 2003 but that meeting did not take place and the further meeting was arranged for 13 February.  In early February the Tribunal records that the management received complaints from two of the Appellant’s colleagues and subordinates, Ben Wing and Keith Pertwain in relation to both specific incidents and the Appellant’s general management abilities.  Mr Pertwain’s covering letter of 9 February also enclosed copies of letters from organisations expressing their concerns with regard to the Appellant’s management.  As a result instead of discussing the Appellant’s grievances on 13 February she was suspended and the letter confirming the suspension dated 17 February referred to conduct which might adversely reflect on her suitability for the type of work she was performing, and authorised absences from work and serious or persistent neglect of duties.
 
8.	The Tribunal also noted that in February 2003 one of the major funders of the Brent Monitoring Plus project wrote to Jan Smith terminating their contract on six month notice which had a direct impact on the funding of the project.  The Tribunal records that a decision was taken by senior management that the only way that the organisation could continue with the project in Brent was that by restructuring creating one full-time project coordinator to replace the existing project manager (the Appellant) and the education coordinator (Mr Rose).  On 28 February Dawn Murray the Respondent’s HR Officer wrote to the Appellant informing her that there was a possibility that her post would become redundant with effect from 31 March and giving her one month’s notice.  The letter referred to a recent discussion that she had had with her line manager although the Tribunal made their reference to this meeting.

9.	Both the Appellant and Mr Rose were short listed for interview for the new position.  The interviews were on 26 March.  The Appellant did not attend and a friend contacted the Respondents on the day of the interview to say that she was unwell.  A decision was taken not to reschedule the interviews on the grounds that it would be difficult to reconvene the panel within a short time and in the belief that the Appellant would not attend if it was rescheduled.  She complained that she would have to face a “biased interview panel comprising of people who had suspended her and ignored her grievances.”  The panel comprised Jan Smith, her line manager who would manage the new successful applicant, Gary Stannart Regional Manager and Amanda Howells a Senior Consultant.
  
10.	Also on 26 March the Appellant should have been due to meet with Tracy Madgwick the Respondent’s Human Resources director to consider her complaints.  She had already had an investigatory meeting the previous day and she phoned before 9.00 o’clock that morning saying that she was not happy with the notes of the meeting from the 25th.  She did not mention her illness at that earlier discussion.

11.	As a result the Respondents appointed Chris Rose, a black male to do the job and the Appellant’s employment was terminated on 31 March 2003 on the grounds of redundancy.

12.	Having set out these facts we now proceed to deal with the Tribunal’s conclusions and which are the subject matter of this appeal.  Before doing so we make a preliminary comment that it would have been preferable if the Tribunal had set out the factual history of the matter before dealing with their conclusions in relation to each head of claim.  The Tribunal chose to set out their findings of fact in relation to the various sets of claim, as a result factual matters were often duplicated.  In addition they set out the law towards the end of the case after they had come to conclusions.  We deal first with victimisation.  Section 4 of the Sex Discrimination Act 1975 provides that:

“4   Discrimination by way of victimisation

(1)	A person (“the discriminator”) discriminates against another person (“the person victimised”) in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has –
(a)	brought proceedings against the discriminator or any other person under this Act or the Equal Pay Act 1970 [or sections 62 to 65 of the Pensions Act 1975], or
(b)	given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act or the Equal Pay Act 1970 [or sections 62 to 65 of the Pensions Act 1995], or
(c)	otherwise done anything under or by reference to this Act or the Equal Pay Act 1970 [or sections 62 to 65 of the Pensions Act 1995] in relation to the discriminator or any other person, or
(d)	alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act or give rise to a claim under the Equal Pay Act 1970 [or under sections 62 to 65 of the Pensions Act 1995],
or by reason that the discriminator knows the person victimised intends to do any of those things, or suspects the person victimised has done, or intends to do, any of them.”

There is an identical provision in Section 2 of the Race Relations Act 1976.

13.	We note that the Tribunal set out Section 4 of the SDA 1975 but omitted to make reference to the words that appear at the end of Sub section (1) namely:

“or by reason that discriminating those person victimised intends to do any of those things, or suspect the person victimised has done, or intends to do, any of them.”

14.	Miss Sivanandan’s submissions in this area are that the Tribunal failed to consider whether as a result of things said or written by the Appellant between October 2002 and January 2003 the Respondents and Jan Smith in particular should have suspected that the Appellant intended to allege that Jan Smith had committed an act of sex or racial discrimination and that for these purposes it was important to consider both the individual effect of each conversation or document and the cumulative effect.  Further she makes particular complaint that the Tribunal failed to make any mention at all of the two January documents to which we have made reference and which appeared in the Tribunal bundle.  A necessity for Tribunals to consider not only the individual acts alleged but the cumulative effect now well established as a result of cases such as Anya v University of Oxford [2001] ICR 847 which adopted the approach set out in Qureshi v Victoria University of Manchester [2001] ICR 863.

15.	How did the Tribunal deal with the various pieces of evidence that had the potential to give rise to protected acts for the purposes of the victimisation provisions?  In relation to the minutes of the October meeting the Tribunal noted in paragraph 9.34 that Mr Smith’s note of the meeting referred to race and gender three times and that “Dialogue relating to issues of race and gender etc” was noted as an action point.  They also noted that Mr Smith had a supervision meeting with the Appellant on the same day and that she did not make any complaints in that meeting alleging that colleagues or managers were treating her less favourably because she was a woman and because she was black and he repeated that he understood her to be explaining her management style by reference to the fact that she was a black woman.  The Tribunal also noted that the Appellant did not refer to this meeting her evidence in chief but relied on her letter to Anita Wilkinson as the protected act she relied on.  They concluded that “Mr Smith’s notes of the meeting do not refer to an allegation by the Applicant capable of amounting to a protected act for the purposes of the Sex Discrimination Act 1975 or the Race Relations Act 1976.”

16.	With regard to the December memo the Tribunal at paragraph 9.13 set out the position thus:

“9.13  On 16 December 2002 the Applicant to Jan Smith stating that she had consulted an Employment Law Agency about discrimination indicating that she thought it might be necessary for her to take the matter to an Industrial Tribunal.  She set-out four matters of complaint.  These are linked in the text to allegations of (unspecified) discrimination and unfair treatment.  This document does not make any allegations of discrimination on the grounds of race or sex, and as such, cannot amount to a “protected act” for the purposes of the victimisation provisions of the Race Relations Act or the Sex Discrimination Act.”

Later at paragraph 9.31 the Tribunal appears to repeat this explanation in the following way:

“9.31  The Applicant’s letter of 16 December 2002 refers to an earlier conversation with Jan Smith and suggests that the Applicant’s preferred course was to commence industrial tribunal proceedings and that she had consulted an employment law agency about this.  Although she referred to a “clear case of discrimination and unfair treatment” there was no suggestion that this was on the grounds of sex or race, or any other statute under which the Tribunal had jurisdiction.”

17.	As we have already indicated the Tribunal made no reference to the two  January documents “points to be discussed” or “further concerns” but noted that in the memo of 31 January the Appellant did not refer  to any concerns about different treatment on the grounds of race or sex.  

18.	Mr Pretsell submitted on behalf of the Respondents that viewed objectively neither the meeting of 25 October nor the memo of 16 December could give rise to a suspicion that the Appellant intended to allege an act of discrimination.  He argued that the Tribunal were correct in finding that they were in reality no more than discussions about the Appellant’s management style and made no reference to specific complaints of race or sex discrimination.  He further submitted that the Tribunal’s view may have been influenced, quite correctly, by their findings in relation to the undated letter of October 2002 which they found not to have been a valid contemporaneous document. As regards the January documents he submitted that even though they were not specifically mentioned the “points for discussion” were no more than a reference to management style, and that the note alleging that the Appellant accused Smith, Wing and Pertwain of being racist contained no specific allegations.  He submitted that it was significant that the lengthy memo sent on 31 January made no mention of any allegations of sex or race discrimination.

19.	Having considered the Respondents arguments we are of the view that the Tribunal have not approached this matter correctly.  They did not set out the victimisation provisions in their entirety and as a result it seems to us that they have therefore failed to ask themselves the key question in this case namely whether by the end of January 2003 as a result of meetings and letters, Mr Smith suspected that the Appellant was going to allege an act of racial or sexual discrimination against him.  Regrettably we are unable to say that the Tribunal approached this matter correctly because (a) they failed to set out the correct test and (b) they ignored two of the important documents and the chronology.  They failed to consider the cumulative effect and/or the nature of the allegations made by the Appellant between October 2002 and January 2003.  We accept that even if they were to find protected acts it would still be necessary to find the causal link between those acts and the suspension which followed shortly thereafter as a result of what the Tribunal found to be “orchestrated complaints”.  Accordingly it seems to us unavoidable that there will have to be a re-hearing on this issue.

20.	The second aspect of the appeal relates to the Respondents explanation for difference in treatment.  At paragraph 9.13 the Tribunal found that there appeared to be a difference in treatment between the Respondent’s failure to take any action on the Appellant’s memo of 16 December 2002 as opposed to Mr Wing raising a formal grievance which was dealt with at the meeting in October.  The Respondent’s explanation to a difference of treatment was dealt with by the Tribunal from paragraph 9.30 onwards as follows:

“9.30  The only case of “less favourable treatment” the Tribunal found to have been made out, was the Applicant’s complaint that the Respondent appeared to have taken no action on the Applicant’s memo of 16 December 2002, which we find could have been construed as a grievance, and that this contrasted with the fact that Mr Smith did process Ben Wing’s grievance against the Applicant.  Mr Wing is white and male, and our conclusion was that there appeared to have been a difference in treatment on the grounds of race and sex.
9.31  The Applicant’s letter of 16 December 2002(pages 409-410) refers to an earlier conversation with Jan Smith and suggests that the Applicant’s preferred course was to commence industrial tribunal proceedings and that she had consulted an employment law agency about this.  Although she referred to a “clear case of discrimination and unfair treatment” there was no suggestion that this was on the grounds of sex or race, or any other statute under which the Tribunal has jurisdiction.  The letter principally concerned the possibility that the Tribunal has jurisdiction.  The letter principally concerned the possibility that the Respondent would pay Cynthia Roberts (another black female worker) for attending a residential course, whereas this appeared to be contrary to established policy and against the Applicant’s recommendation.  It also refers to complaints the Applicant saw as undermining her management role - the way the video recorder matter was taken out of her hands, and she lost responsibility for Brent Youth Action.
9.32  Mr Smith said that the issues raised in this letter was “ongoing” and that the decision had not been made to pay Cynthia Roberts for a residential course against the Applicant’s wishes, although she was subsequently paid on leaving the organisation with the Applicant’s agreement the following day.
9.33  Although it might be possible to construe this document as a grievance, we note that the stated intention is to present a complaint in the Employment Tribunal and we accept Mr Smith’s explanation for why the contents were not formally progressed under the grievance procedure.  As far as he was concerned, these were “ongoing issues” which he was discussing with the Applicant on a regular basis.  We therefore accept the Respondent’s explanation of the apparent different treatment.”
 
21.	The Appellant’s complaints were that the Tribunal failed to adequately explain how they distinguished the issues raised by the Appellant’s grievance from those raised by Mr Wing; moreover if they were “on going issues” the Tribunal failed to therefore ask themselves the correct question which is whether they would have treated a man or a white person differently in similar or comparable circumstances ie a white or male person who had raised on going issues.

22.	Miss Sivanandan contends that as a result of the guidance in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337, although the Appellant had initially put forward Mr Wing as a comparator once the Tribunal decided that the Appellant’s own complaints were not as serious as Mr Wing’s the Tribunal erred in not going on to consider a hypothetical comparator as indeed the Appellant had invited the Tribunal to do in her closing submission.  Mr Pretsel contends that the Tribunal were entitled to regard Mr Wing as the appropriate comparator and to accept the evidence from Jan Smith that there was a reasonable explanation for the difference in treatment namely that the Appellant’s complaints of part of on going raft of complaints which were better dealt as part of Mr Smith on going management of the Appellant.

23.	Again we do find force in the Appellant’s submissions bearing in mind that the Appellant’s memo of 16 December has commenced off with the suggestion of there being a “clear case of discrimination and unfair treatment” with a possibility of taking the matters further to an Employment Tribunal.  It seems to us that the simple explanation of “on going issues” was not a reasonable explanation of the apparent different treatment and the Tribunal were in error in accepting that explanation.  Even if we are wrong on that issue, the justification of “on going issues” seem to us to have required the Tribunal to have asked themselves the further question whether a white person or male with similar issues would have been treated in the same way.  Again this is an issue that we must return to the Tribunal for reconsideration.

Redundancy
24.	The concerns regarding redundancy as highlighted by Judge Altman related to a failure to consider the issue of consultation between employer and employee as part and parcel of the decision making about the determination of redundancy.  Miss Savanandan contended that there were wider issues involved in relation to this ground, namely whether or not the Appellant should have been automatically chosen for the new position because of her seniority and experience and secondly the Tribunal’s finding that there was no unfairness in Mr Smith being part of the selection panel.

25.	In dealing with the issue of unfair dismissal at paragraph 9.44 the Tribunal concentrated on whether the reason for the dismissal was a potentially fair one.  They did find that in February 2003 the Appellant was warned formally of the possibility of redundancy and that the Respondents complied that their statutory duty to attempt to find alternative employment and held that the dismissal itself was fair taking into consideration of all the circumstances of the case.  Earlier on at paragraph 9.18 the Tribunal had found that the selection panel was not biased.  “Although “the Applicant had concerns about Jan Smith, it was legitimate as line manager he should sit on the panel and he was, in any event in a minority.”

26.	Before us Miss Savanandan concentrated very much on the issue of bias and also made 
submissions that the Appellant could have been “slotted in” to the new job without going through an interview process.  However it was not clear to us how far that was an issue before the Tribunal and we would not allow that matter to be reconsidered taken on its own.  However, the issue of bias is of greater concern to us.  In Lodwick v London Borough of Southwark [2004] IRLR 554 the Court of Appeal held that the fact that the Chairman of an Employment Tribunal was only one of three members of the Tribunal with an equal vote was not a good reason why a Chairman should not stand down if grounds were found to be present which would lead the appropriate observer to conclude that there was a real possibility that the Chairman was biased.  They held that it could not properly be held that the requirement of a fair hearing was satisfied by the presence of lay members.  It seems to us that the history of the relationship between the Appellant and Mr Smith would lead any reasonable Tribunal to conclude that there was a real risk that a fair minded and informed observer would conclude that there was a real possibility of bias particularly bearing in mind that by the middle of March a more formal complaint had been made by the Appellant to Michael Hastings the Chairman of the Board making a number of complaints and suggesting that she had been discriminated against her on the grounds of her race and sex.  Using the analogy of the situation in Lodwick the fact of a potentially biased member being the minority does not seem to us to thereby render the process fair.  Accordingly we must invite the Tribunal to reconsider the issue of fairness of the redundancy process.

27.	The only remaining issue is to whether or not the matter should be remitted to the same or a different Tribunal.  We bear in mind particularly the length of time that this case took; the matters to be remitted are three quite discreet issues and we believe it is more appropriate for the same Tribunal to reconsider them.  We therefore direct a rehearing on the issues of victimisation, unfair dismissal and race/sex discrimination limited to the issues that we have raised in this Decision.