[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Kirby v. National Probation Service for England And Wales Cumbria [2006] UKEAT 0344_05_0803 (8 March 2006) URL: http://www.bailii.org/uk/cases/UKEAT/2006/0344_05_0803.html Cite as: [2006] UKEAT 344_5_803, [2006] UKEAT 0344_05_0803, [2006] IRLR 508

[New search] [Printable RTF version] [Help]

HIS HONOUR JUDGE PETER CLARK

1. We have before us for Full Hearing a total of 5 appeals and one live cross-appeal arising from both the liability and remedies judgments of the Manchester Employment Tribunal (Chairman Mr S D Robertson) in these proceedings, originally brought by Ms Holland, Ms Kirby and Ms Holywell (the Claimants) against the Respondent, The National Probation Service for England and Wales Cumbria Area. Ms Holywell's claims were dismissed. She has not appealed that finding. Consequently only the 2 remaining Claimants and the Respondent are parties to these appeals. We shall so describe them.

Background

2. We begin with a summary of the material facts as found by the Employment Tribunal in their liability judgment promulgated with very full reasons on 21 April 2005.
3. The Respondent operated a probation and bail hostel, the Bowling Green Approved Premises at Lowther Street, Carlisle. At the relevant time the staff at those premises consisted of the hostel manager, Mr Kimberley; deputy manager, Ms Loy; 4 assistant wardens, Mr Schollick, Mr Harrison, Ms Brough and the Claimant Ms Holland. There were also 3 hostel support workers, including the Claimants Ms Kirby and Ms Holywell. Ms Holland is of Asian origin. The other members of staff were white.
4. Ms Loy joined the staff in January 2001; Ms Holland was appointed to a full-time post, having previously worked on a relief basis, on 1 April 2002. They did not hit it off together. As early as 5 April 2002 Ms Loy held her first supervision session with Ms Holland. Ms Loy welcomed Ms Holland to her 'new job', leading Ms Holland to say that she had already been doing it on a relief basis and secondly, according to Ms Holland, Ms Loy said "and now we have an ethnic minority on the staff team". Ms Loy denied making that remark but the Employment Tribunal found that she did.
5. The Employment Tribunal did not find Ms Loy a satisfactory witness. They accepted that during 2002 the Assistant Wardens at the Hostel split into 2 camps; by July Ms Loy's behaviour towards Ms Holland had become hostile, indifferent, critical and dismissive. Examples are given in their careful findings of fact. By the end of January 2003 Ms Holland was complaining to Mr Kimberley about the behaviour of Ms Loy and Ms Brough towards her. As attitudes hardened Mr Harrison and Ms Brough, who supported Ms Loy's cause in the grievance raised by Ms Holland, asked Ms Kirby to support Ms Loy. Ms Kirby was non-committal, preferring not to get involved. In March Ms Brough, angered at the complaint made against her by Ms Holland, threatened to "kick her head in". All was plainly not well in the Bowling Green Hostel.
6. Prior to going off on sick absence on 4 March 2003, never to return to work for the Respondent, Ms Holland made further complaints about Ms Loy and Ms Brough. As a result she was interviewed by Mr Gadman, Assistant Chief Officer, on 18 March 2003. At that meeting, in answer to a direct question from Mr Gadman, Ms Holland indicated that in her view her race was an underlying, although not the main reason, for the treatment by Ms Loy of which she complained and which she characterised, in an e mail to Mr Kimberley dated 1 March, as persistent bullying/victimisation. At the meeting on 18 March she suggested that Mr Gadman spoke to Ms Kirby.
7. He did so on 4 April. Prior to that interview Ms Loy, who was then aware of the racial element forming part of Ms Holland's complaint against her, told Ms Kirby that she was the only member of staff, other than the main protagonists, to be interviewed by Mr Gadman. This conversation occurred in the presence of Mr Harrison, who indicated that Ms Loy had shown him Ms Holland's grievance.
8. During the 4 April interview Mr Gadman raised the difference in race between Ms Loy and Ms Holland and asked Ms Kirby whether there was more to it than the personality clash, as Ms Kirby had described it. She replied that she had not noticed any issues of race and hoped that she would have picked it up if it had occurred.
9. Following his investigation Mr Gadman reported to Mr Maiden, Chief Officer in a written report dated 7 April. The Employment Tribunal was critical of that report; it found that he had carried out an incomplete investigation and made inadequate findings on Ms Holland's complaints. However, he was genuinely motivated by seeking solutions to what he regarded as a personality clash between Ms Holland and Ms Loy.
10. Shortly thereafter the following incidents occurred. On 9 April a Hostel resident threatened Ms Kirby and Ms Brough, who was present, did not come to her assistance and indeed blocked the resident's exit from the room in which they were standing. On the same day Ms Loy was indifferent to Ms Kirby's request for that resident to be moved to a room monitored by CCTV as a safety measure. Further, on the following day, at a team meeting, Mr Harrison indicated that he would not support Ms Kirby if she were to be threatened by a resident.
11. On 11 April Ms Kirby went off sick, like Ms Holland, never to return to work with the Respondent. Both these Claimants then sought advice from Mr Forde of Employee Lawyer Limited. That adviser then took up their case with the Respondent.
12. On 27 May Mr Forde raised a grievance on behalf of Ms Kirby, giving details of the treatment meted out to her on 9-10 April. On 15 May Ms Kirby had signed a witness statement supporting Ms Holland's grievance. She there suggested that the bullying of Ms Holland had racial connotations. On 30 May Ms Whyham was appointed as an independent investigator into Ms Holland's complaints.
13. On 11 June Ms Holland attended a return to work interview, the upshot of which was that it was suggested that she remain on special paid leave pending Ms Whyham's report. She did so. Later that month Ms Brough resigned from the Respondent's employment. Ms Kirby was also placed on special leave.
14. On 16 July Ms Whyham submitted her report which was copied to these Claimants on 19 July. At return to work interviews held on 24 July both indicated that they did not accept the report. As a result the Respondent agreed that the grievances of all 3 Claimants (including Ms Holywell) would be subject to appeal. An appeal Board sat to consider the matter from 15-18 August. The 3 Claimants were represented by Mr Forde. The panel recommended that steps be taken to get the Claimants back to work.
15. To that end a meeting took place on 13 October which the Employment Tribunal regarded as being of fundamental importance in this case. It resulted in a hand-written agreement, signed by Mr Forde on behalf of the Claimants. They rejected the Claimants' case that Mr Forde did not have authority to enter into it on their behalf. It provided a basis for a return to work. Further communications via Mr Forde followed and on 21 October both Ms Holland and Ms Kirby were referred to Occupational Health for assessment and advice as to a phased return to work. The following day Ms Holland presented her complaint of racial discrimination to the Employment Tribunal and on 5 November Ms Kirby presented her complaint of victimisation. At that stage they were still represented by Mr Forde. A return to work was fixed for 17 November, but that day both Ms Holland and Ms Kirby reported sick by telephone.
16. A Pre-Hearing Review took place before the Employment Tribunal on 6 February. The Respondent was represented by its solicitor, Mr Morris; the Claimants by Mr Forde. During the hearing a cost issue arose. Mr Morris applied for costs; Mr Forde asked that the application be deferred until the main hearing. Mr Morris opposed that proposal on the basis, as he put it, that cases such as this are very often settled and he did not wish the costs issue to be deferred.
17. Following that hearing all 3 Claimants resigned by a single letter addressed to Mr Maiden and dated 11 February 2004. The letter began:

"We should like to take this opportunity to tender our resignations and seek confirmation of your intentions regarding your entitlement to services of notice. We feel that after the experience of the Tribunal and the comments of your representative, John Morris, that "statistically speaking, matters such as these are usually settled out of court", we cannot continue in the employ of the National Probation Service."

18. On 11 May the Claimants, now represented by a solicitor, lodged amendments to their Forms ET1 and added claims of constructive unfair dismissal.

The Claims

19. The Employment Tribunal identified the following claims by these 2 Claimants arising for determination. Ms Holland alleged unlawful direct racial discrimination in 2 respects; first her treatment at the hands of Ms Loy between April 2002 and March 2003; secondly, in respect of the way in which her complaints were investigated and dealt with by the Respondent's management after 27 May 2003. Ms Kirby alleged victimisation in respect of treatment by her colleagues at the Hostel in April/May 2003 and secondly in relation to management's treatment of her grievance after 27 May 2003. Both Claimants also alleged constructive unfair dismissal arising from their resignations on 11 February 2004, relying on the course of conduct alleged in their discrimination and victimisation claims respectively.

The Employment Tribunal's Conclusions (Liability)

20. It is convenient to deal with the claims under 3 heads, victimisation, direct discrimination and constructive unfair dismissal.

(1) Victimisation

21. The Employment Tribunal made the following material findings on Ms Kirby's complaint of victimisation:

(a) she had done 2 protected acts; the first concerned her being interviewed by Mr Gadman on 4 April 2003 (the first protected act); the second was a written statement which she made in May 2003 which was submitted to the Respondent by Mr Forde in support of Ms Holland's grievance on 27 May 2003 (the second protected act).

(b) she was treated less favourably than an employee who had not done the first protected act but raised a grievance by reason of the protected act (Reasons, paragraphs 135; 137), in that on 9-10 April Ms Brough, Ms Loy and Mr Harrison failed to support Ms Kirby in the respects earlier outlined.

(c) she did not receive less favourable treatment following the second protected act.

(2) Direct Discrimination

22. Ms Holland was treated less favourably on grounds of her race by Ms Loy between April 2002 and February 2003. The Respondent was liable for those acts of unlawful discrimination. However there was no further discrimination on the part of the Respondent after February 2003.

(3) Constructive Dismissal

23. Neither Claimant was constructively dismissed. The Claimants relied upon Mr Morris' comments at the Pre-Hearing Review held on 6 February as the final straw which, taken with their treatment respectively prior to that date forming the basis of the claims of victimisation and direct discrimination, was said to amount to a repudiatory breach. Those comments were characterized as 'entirely innocuous' by the Employment Tribunal and thus could not amount to a final straw leading to a conclusion that it was the Respondent's fundamental breach of contract which entitled them to resign and treat themselves as constructively dismissed. London Borough of Waltham Forest v Omilaju [2005] IRLR 35 (CA).

The Liability Appeals

24. We shall deal with these appeals (including Ms Kirby's live cross-appeal) again under the headings victimisation and constructive dismissals.

Victimisation (EAT 0344/05/ZT)

25. First, the Respondent's appeal against the Employment Tribunal's findings of victimisation in favour of Ms Kirby.

Section 2 RRA provides:

"2 Discrimination by way of victimisation

(1) A person ("the discriminatory") 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

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act; or

(c) otherwise done anything under or by reference to this Act 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 sates) would amount to a contravention of this Act,

or by reason that the discriminator knows 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.

(2) Subsection (1) does not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith."

Mr Gorton takes 2 points in support of the appeal:

(1) was Ms Kirby's participation in the interview conducted by Mr Gadman on 4 April 2003 the doing of a 'protected act'?

(2) if so, was the treatment which she received at the hands of her work colleagues on 9-10 April by reason that she had done that protected act (the finding that this was less favourable treatment and the hypothetical comparator used by the Employment Tribunal are not challenged by the Respondent in this appeal).

Protected Act

26. The expression 'protected act', routinely employed in the cases, is a convenient shorthand for any one of the 4 types of act specified in Section 2(1) (a)-(d).
27. Attention is ultimately focussed on the Employment Tribunal's finding that Ms Kirby's participation on 4 April in the Gadman interview fell within Section 2(1)(c). Mr Gorton summarizes the Employment Tribunal's reasoning (paragraph 130) in this way: (a) Ms Holland adopted race as an issue in her grievance (b) Ms Kirby was interviewed in connection with that grievance (c) it was immaterial that Ms Kirby did not support the race allegation.
28. Mr Gorton submits that such reasoning is legally flawed. He refers to Aziz v Trinity Street Taxis Ltd [1988] ICR 534, 542, where Slade LJ said:

"An act can, in our judgment, properly be said to be done "by reference to the Act" if it is done by reference to the race relations legislation in the broad sense, even though the doer does not focus his mind specifically on any provision of the Act."

29. Based on that gloss on the Statute Mr Gorton contends first, that simply to take part in an internal grievance investigation does not amount to doing something by reference to the Race Relations Act; secondly, that since Ms Kirby was not supportive of Ms Holland's complaint of racial discrimination by Ms Loy in her grievance what she did in interview was not by reference to the Act; thirdly, that Section 2(1)(b) cannot apply since tribunal proceedings had not been issued.
30. Ms Kirby invites us to uphold this finding by the Employment Tribunal, if not on the basis of Section 2(1)(c) then under Section 2(1)(b). She argues that proceedings under Section 2(1)(b) are not limited to court proceedings, but include internal grievance proceedings.
31. We have taken account of Aziz and the earlier EAT decision in Kirby v MSC [1980] ICR 420, but we think that there is no substitute for the late Mr Justice Phillips' exhortation to drink from the pure waters of the statute.
32. The 4 seperate sets of circumstances set out in Section 2(1)(a)-(d) must be looked at as a whole. (a) is concerned with a claimant (A) who has brought proceedings against the discriminator ('victimizer') or any other person under the Act and is then victimized for doing so. Thus A brings a claim of race discrimination against his employer. The employer then victimizes him for doing so. That is not this case. Equally, a person who gives evidence or information in connection with tribunal proceedings brought by A against their employer who is himself then victimized by the employer by reason that he has given evidence or information in connection with those proceedings has a claim under Section 2(1)(b). We note the use of the words "evidence or information". It catches not just the case of a witness in such proceedings but also a person who, for example, provides a witness statement without being called to give evidence. Further, in our view it is unnecessary that that person gives evidence or information in support of A's case. It is enough that it is 'in connection with A's proceedings. However, in the present case no proceedings and we accept Mr Gorton's submission that proceedings means tribunal proceedings, were contemplated by Ms Holland as at 4 April 2003. Section 2(1)(d) logically comes next. It covers an allegation that the discriminator has committed a contravention of the act. That may well cover Ms Kirby's witness statement in May 2003 (the second protected act) but it is apparent that she made no such allegation during her interview with Mr Gadman on 4 April. Section 2(1)(c) is a "catchall" in a case where the alleged "victim" has otherwise done anything … by reference to this Act in relation to the discriminator or any other person.
33. In our judgment the Employment Tribunal was entitled to conclude that by answering questions put by Mr Gadman concerning Ms Holland's allegation that race was an underlying reason for her treatment by Ms Loy, Ms Kirby did a protected act within the meaning of Section  2(1)(c).
34. That provision is necessarily wider than the more restricted circumstances set out in Section 2(1)(a),(b) and (d). Although Ms Kirby had not (a) brought proceedings nor (b) given evidence or information in connection with such proceedings nor (d) alleged that Ms Loy had racially discriminated against Ms Holland it was not necessary for her to show any of those things for the purposes of (c). She had given information in connection with a complaint of race discrimination raised in internal grievance procedures by Ms Holland. That was otherwise doing something by reference to the Act in relation to another person (Ms Loy; for whose acts the Respondent was responsible), construing Section 2(1)(c) generically with the circumstances set out in Section 2(1)(a),(b) and (d).
35. Mr Gorton deployed the 'floodgates' argument. If giving neutral evidence at an internal grievance interview amounted to a protected act those clichéd gates would open and employers would be faced with a flood of victimization complaints. We disagree. Doing a protected act is only one ingredient of the statutory tort of victimization. To complete the tort requires less favourable treatment by reason that the employee had done the protected act. Where those further elements are proven we think it right that the catchall provision in Section 2(1)(c) ought not to be so restrictively construed as to defeat a claim which, on the facts of the present case, should succeed. The mischief intended to be caught by Section 2 plainly arose in this case.
36. Why did Ms Kirby receive the offending treatment from colleagues on 9-10 April?
37. The first point taken by Mr Gorton is that in 2 places (paragraphs 135 and 137) the Employment Tribunal made reference to "by reason of" as opposed to the statutory wording "by reason that". We see nothing in that point. The Employment Tribunal set out the words of Section 2 (paragraph 124). No error lay in their transposing the word "of" for "that".
38. Secondly, he submits that the relevant findings by the Employment Tribunal (paragraph 136) amounted to no more than that the less favourable treatment was meted out to Ms Kirby because she had not sided with the Loy faction in the separation of employees at the Hostel into 2 camps. That does not provide the necessary connection between the protected act and the treatment. We disagree. Applying Stage 1 of the Igen guidance they asked themselves (Reasons paragraph 135) whether Ms Kirby had proved facts from which the Employment Tribunal could conclude, in the absence of an adequate explanation, that the treatment was by reason of the protected act. It seems to us that Mr Gorton is seeking, impermissibly, to introduce the employee's explanation (division into 2 camps) at the first stage of the enquiry. When the Employment Tribunal then moved to Stage 2 (paragraph 137), in the absence of evidence from Ms Brough or Mr Harrison they rejected the non-discriminatory explanation advanced by the Respondent. There is no appeal against that finding.
39. In these circumstances we shall dismiss the Respondent's appeal against the Employment Tribunal's finding of victimization in favour of Ms Kirby.
40. We turn now to Ms Kirby's cross-appeal against that part of the Employment Tribunal's victimization finding unfavourable to her.
41. In addition to preparing and lodging skeleton arguments in advance of the hearing, both Ms Kirby and Ms Holland prepared written submissions amplifying those skeleton arguments. We took time to read those submissions on the morning of the first day of hearing, thus reducing, at the Claimants' request, the need for lengthy oral submissions. Having completed the oral argument we then reserved our judgment so as to consider the written material before us in the light of that argument.
42. It is, as both Claimants recognized, axiomatic that this Employment Appeal Tribunal's jurisdiction is limited to correcting errors of law. We cannot retry the facts. Absent a patent misdirection in law, unless a material finding by the Employment Tribunal is wholly unsupported by evidence (see Piggott Brothers Ltd -v- Jackson [1992] ICR 85, 92D per Lord Donaldson MR) or a material conclusion meets the stringent test of perversity identified in Yeboah -v- Crofton [2002] IRLR 634, no error of law engaging this Employment Appeal Tribunal's jurisdiction is made out. Nor is it necessary for the Employment Tribunal to make findings on each and every point raised in evidence and argument before them.
43. Applying that necessarily strict approach to Ms Kirby's cross-appeal we are wholly unpersuaded that any error of law is made out. By way of example, Ms Kirby attacks the Employment Tribunal's finding at paragraph 39 of their Reasons that there was no reason to doubt Mr Gadman's contemporaneous note of his interview with Ms Kirby on 4 April 2003, or to conclude that he put her under undue pressure. Ms Kirby invites us to substitute for the Employment Tribunal's view a finding that she was put under pressure and victimized at that interview. That is an impermissible course for this Employment Appeal Tribunal to take.
44. As to the findings of what was and was not less favourable treatment meted out to Ms Kirby we accept Mr Gorton's submission that the critical findings at paragraphs 134, 138 and 139 of the Employment Tribunal's Reasons were permissible conclusions based on their assessment of the evidence before them. Ms Kirby's contention, at paragraph 38 of her written submission, that the Employment Appeal Tribunal should substitute its view that the Respondent's treatment of her grievance amounted to less favourable treatment for that of the Employment Tribunal is not a permissible exercise within this appeal process.
45. Similarly, it is not open to Ms Kirby to argue on appeal that the Employment Tribunal failed to "attach due weight or to record a decision" on the question of special leave. The significance of that issue was a matter for the Employment Tribunal; what weight they attached to it was also for them.
46. Equally, we can see no error of law in the Employment Tribunal's selection of an hypothetical comparator (Reasons paragraph 132). Ms Kirby argues that she was less favourably treated in the matter of her grievance than was here co-Claimant, Ms Holywell. However, the Employment Tribunal accepted the distinction between their cases as advanced by the Respondent (Reasons paragraph 134). That was a permissible conclusion.
47. Finally, we note the Employment Tribunal's alternative finding (paragraph 139) that even had less favourable treatment been made out, they would have accepted the Respondent's explanation for that treatment in relation to the handling of all 3 Claimants' grievances. As Ms Kirby accepted in oral argument, she disagrees with that finding of fact.

In these circumstances we shall dismiss Ms Kirby's cross-appeal.

Constructive Dismissal – EAT/0345 and 0346/05/ZT

48. Having rejected the Claimants' cases that the Respondent had failed to redress their grievances promptly or to have proper regard for their health and safety (Reasons paragraph 147) they were thrown back on earlier conduct by members of the Respondent's staff which the Employment Tribunal found amounted to victimisation of Ms Kirby and discrimination against Ms Holland. In particular, the Employment Tribunal found that there was no unreasonable or unfair conduct by the Respondent after agreement in principle was reached for a return to work on 13 October 2003. In these circumstance, in order to revive those earlier acts as undermining trust and confidence it was necessary for the Claimants to point to a 'final straw' (see Omilaju).
49. The Employment Tribunal found that that consisted of the 'innocuous' remarks of Mr Morris at the Pre-Hearing Review on 6 February 2004, leading to the Claimants' resignations on 11 February.
50. In our judgment there is no error of law in that approach. Ms Holland, in this context, wishes to challenge the Employment Tribunal's findings as to her allegations of later discrimination based on the Respondent's conduct of her grievance although there is no appeal against the discrimination findings. That is doomed to failure, as was Ms Kirby's attack on the Employment Tribunal's similar findings in her victimisation case. Ms Kirby advances a wholly different 'final straw', namely a conversation with a fellow employee, Barbara Thompson, on 9 February; something which she decided not to mention in her resignation letter. That conversation appears at pages 28-29 of the Chairman's Notes of evidence. It could not, in our view, possibly amount to a 'final straw'.

Accordingly, we shall dismiss both these appeals.

Remedy

51. Based on their liability findings, in a Judgment on Remedy, promulgated with Reasons on 14 September 2005, following a hearing held on 15 August, the Employment Tribunal awarded Ms Holland £8,000 compensation for injury to feelings, plus interest in respect of racial discrimination and £5,000 plus interest to Ms Kirby for her injury to feelings in respect of her partially successful victimisation claim.

Remedy Appeals – EAT/0607 and 0608/05/ZT

52. It is appropriate to deal with the heads of appeal in this way:

(1) Injury to feelings

The Employment Tribunal directed themselves in accordance with the Court of Appeal guidelines in Vento (No 2) [2003] IRLR 102. They found that Ms Kirby's case fell at the very top of the lower band and that of Ms Holland at the lower end of the middle band. Hence their respective awards.

53. We can only interfere with those assessments where the Employment Tribunal has reached a wholly erroneous estimate of the damage suffered by the Claimants. Noone -v- North West Thames Regional Health Authority [1988] IRLR 195, paragraph 32 per May LJ. In our judgment these Claimants have advanced no viable argument to meet that criterion. Based on the Employment Tribunal's Findings their assessments fell within permissible parameters.

(2) Personal Injury

54. The claims for 'injury to health' first appeared in Schedules of Loss prepared by each Claimant and produced on the day of the Remedy hearing.
55. Ms Holland referred us to the Occupational Health reports of Dr Trafford and a letter from her General Practitioner dated 9 August 2005 in order to demonstrate that there was medical evidence before the Employment Tribunal on which a seperate award of damages for personal injury could and should have been made. However, as the Employment Tribunal observe at paragraph 7 of their Remedies Reasons, this Claimant was offered an adjournment so that the Respondent could meet this new claim, but she did not accept that offer. In these circumstances it is not open to her to pursue it on appeal. It would not, in any event, have been open to her in her (unsuccessful) unfair dismissal claim. Dunnachie -v- Kingston-upon-Hull City Council [2004] ICR 1052.
56. Precisely the same considerations apply in the case of Ms Kirby. The difficulty is not that damages for injury to health are irrecoverable in claims of racial discrimination and victimisation. Essa -v- Laing Ltd [2004] IRLR 312; rather that these claims were not before the Employment Tribunal for determination.

(3) Aggravated Damages

57. On the limited basis on which the Employment Tribunal upheld the Claimants' complaints of race discrimination and victimisation there was no error in their conclusion that these were not cases in which a separate award for aggravated damages was appropriate.

(4) Loss of Earnings

58. This claim in each case could only arise if the Employment Tribunal had found that the Claimants had been dismissed. It did not. Ms Kirby submits that the chain of causation has been established by the Employment Tribunal's finding (paragraph 17. Remedy Judgment) that "none of the relevant events, including the resignations would have happened if it had not been for the initial discrimination". However, the Employment Tribunal then went on to find that the loss of earnings flowed from the resignation (not attributable to the torts of the Respondent) rather than the discrimination/victimisation as found. We see no error in that approach.

(5) Loss of Career

59. Insofar as this head of loss amounts to a claim for loss of earnings it fails for the reasons given under (4) above. Insofar as it may be equated with a claim for loss of congenial employment, that arises under the claims for personal injury, not pursued at the remedies hearing. Ms Kirby complains that the Employment Tribunal was wrong not to recognize this separate head of loss. She cites a case of Stubbs -v- Chief Constable of Linconshire Police [1999]. The report of the case of that name produced to us by Mr Gorton at [1999] IRLR 81 does not mention that head of loss. Neither Claimant was able to produce any different report. The same applies also to the case of El-Hoshi -v- Pizza Express. 23 March 2004; the unreported judgment of His Honour Judge McMullen QC is at EAT/0857/03/MAA.

(6) Recommendation

60. Section 56(1)(c) RRA provides that the Employment Tribunal may recommend action to be taken by the Respondent for the purpose of obviating or reducing the adverse effect on the complainant of any act of discrimination to which the complaint relates.
61. The Employment Tribunal dealt with the question of references at paragraph 20 of the Remedy Reasons. Both Claimants further argue before us that a recommendation ought to have been made consistent with the Respondent's duty as a public authority to promote good race relations. Whilst that duty cannot be gainsaid, it is not a recommendation which would obviate or reduce the adverse effect of the discrimination/victimisation found against these former employees of the Respondent.

Conclusion

62. It follows that we can see no grounds in law for interfering with either Judgment of this Employment Tribunal. Both Judgments are a model of clarity; meticulously setting out their findings of fact; the law to be applied and showing the reasoning which led to their conclusions on all the main issues. Each of these 6 appeals fails and is dismissed.