Appeal No. UKEAT/0063/09/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 April 2009

Before
HIS HONOUR JUDGE PETER CLARK
PROFESSOR S R CORBY
MR P GAMMON

GBM SERVICES LTD	APPELLANT

MR M TAJ	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR N DE MARCO
(of Counsel)
Instructed by:
Messrs Pinsent Masons Solicitors
CityPoint
One Ropemaker Street
London EC2Y 9AH	
For the Respondent	MS E GEORGE
(of Counsel)
Instructed by:
Equal Justice Solicitors
15 Southampton Place
London  WC1A 2AJ	

SUMMARY

PRACTICE AND PROCEDURE
Case management
Appellate jurisdiction/reasons/Burns-Barke
RACE DISCRIMINATION
Burden of proof
Permissible case management decision by Employment Tribunal hearing substantive case to add two issues, pleaded in Form ET1, to list of issues formulated at earlier Case Management Discussion, having raised the matter on its own initiative and heard representations from both parties.

Whether reasons Meek compliant in relation to finding that the Claimant had passed stage 2 of Igen v Wong test.

Whether Employment Tribunal correctly directed themselves as to stage 1 of Igen.

Appeal dismissed.

HIS HONOUR JUDGE PETER CLARK
1.	This is an appeal by GBM Services Ltd, the Respondent before the Watford Employment Tribunal, against the reserved judgment of an Employment Tribunal chaired by Employment Judge Smail promulgated with reasons on 9 December 2008 following a five-day hearing on 29 and 30 September and 1 to 3 October upholding, in part, the Claimant Mr Taj’s complaints of unlawful discrimination and his claim of constructive unfair dismissal.  There is no cross‑appeal by the Claimant against those allegations of unlawful discrimination which the Tribunal rejected.

Background
2.	The Claimant was employed by the Respondent from 5 May 1998 until his resignation effective on 3 November 2007, latterly as a security controller based at the Harlequin Centre, Watford.  His job was to monitor security screens and direct security officers to places in the Centre where they were required.  He spent his first three years of service as a security officer with the Respondent.  The Claimant is of Kashmiri or Pakistani ethnic origin and is of the Muslim faith.

3.	By his first Form ET1, presented on 29 May 2007, he brought claims of racial and religious discrimination including allegations of harassment and victimisation.  By a second Form ET1, presented on 7 December 2007, he brought further complaints of racial and religious discrimination and a claim of constructive unfair dismissal.  All claims were resisted by the Respondent.

4.	At a Case Management Discussion (CMD) held before Employment Judge Mahoney on 2 January 2008 a number of factual issues were identified for determination at a substantive hearing.  However, on the first day of that hearing, 29 September, the Tribunal noted that two issues raised in the first claim did not appear in the CMD list of issues.  They were (1) not dealing with the Claimant’s grievances, and (2) differential arrangements for taking leave.  The Claimant, who appeared in person below, was asked whether those omissions were deliberate.  He said that they were not and asked that they be restored.  That application was opposed by Mrs Harvey, the Respondent’s human resources director, who conducted their case below as well as giving oral evidence on their behalf.

5.	The Tribunal ruled in favour of the Claimant, taking the view that the Respondent had prepared evidence on the leave issue and was in a position to prepare it on the grievance issue.  Pausing there, it appears from the Tribunal’s findings that Mrs Harvey was the Respondent’s principal witness on the grievance issue.  Accordingly, the two omitted allegations were added to the CMD list of issues at the start of the five-day substantive hearing.

6.	Having directed themselves as to the law, uncontroversially so far as the Respondent’s case on appeal is concerned, the Tribunal proceeded to make its findings on each of the ten allegations of discrimination made by the Claimant labelled (a) to (j) and then considered and upheld the claim of constructive unfair dismissal which depended on some or all of the earlier events as entitling the Claimant to leave in circumstances amounting to constructive dismissal.  Central to the way in which the Respondent’s appeal is put is the Tribunal’s finding as to the Respondent’s treatment of the Claimant’s grievances (reasons paragraphs 23 ‑ 33).

7.	In summary, the Tribunal there found that the Claimant first raised a grievance on 1 November 2005 complaining that Mr Vickers, a supervisor, was racist towards himself and other ethnic minority staff.  Absolutely nothing was done about that grievance.  Next, on 3 September 2006 the Claimant complained in a letter to a Mr Hussain that Mr Nelson, the Soft Services manager, spoke to him in a “master to slave” tone and intimidated him on grounds of his ethnicity.  He was there raising, the Tribunal observed, very serious issues about race relations at the Respondent.

8.	Mr Hussain then left the company and the Claimant wrote to Mrs Harvey on 9 October 2006.  That letter redirected his grievance about Mr Nelson to her.  He complained of discrimination.  He also complained about Mr Vickers.  He further mentioned a racial “joke” aimed at Muslims shared between a Mr Tupling and Mr Nelson.  That letter was acknowledged by Mrs Harvey on 12 October and she passed the matter to Mr Whittaker for immediate investigation.  However, he also left the company and on 7 January 2007 the Claimant raised a grievance about the Respondent’s failure to deal with his two earlier grievances with Mrs Parr in head office.

9.	The matter then returned to Mrs Harvey, who acknowledged, in a letter dated 9 January, that the Claimant’s request for a grievance hearing had “fallen through a gap”.  She finally held a meeting with the Claimant on 26 February 2007.  She promised a decision in three to four weeks but then had to take leave of absence.  Having heard nothing, the Claimant wrote to the managing director, Mr Pyner, on 5 April 2007.  Mrs Harvey’s investigation consisted of having a few conversations with members of management and with two white female controllers who worked alongside the Claimant.  She did not interview any of the Claimant’s witnesses or his Muslim colleagues on the grounds that she was concerned that they might be biased.  She finally saw the Claimant on 18 May and wrote to him on 25 May.  His main grievances were not upheld, although she did write to staff advising them as to appropriate conduct and behaviour.

10.	On these facts, the Tribunal concluded at paragraph 33 of their reasons:
“33.	The Tribunal has concluded that the delay in dealing with the grievance and also the manner of the investigation, in particular the failure to interview the Claimant’s witnesses who were work colleagues, do amount to acts of discrimination against the Claimant.  They are matters upon which the Tribunal could reasonably conclude that discrimination has taken place, the less favourable treatment being as against the hypothetical comparator, failure to treat sufficiently seriously allegations of racism and failure properly to investigate them.  In the Tribunal’s view the burden does shift to the Respondent to explain these matters away on non‑discriminatory grounds and the Tribunal concludes that the Respondent has failed to do that and that therefore the complaint of discrimination in connection with the failure properly to deal with the grievances succeeds.  There is every pointer suggesting that the Respondent does not take such complaints of discrimination sufficiently seriously.  The Respondent does not have a developed system of equal opportunities policies, procedures and training.  The Claimant had in his grievances made allegations both of race and religious discrimination.  Both claims are made out in respect of the delay and the failure properly to investigate.”

11.	Of the ten allegations made by the Claimant and considered by the Tribunal, three were upheld and seven dismissed.  Apart from the grievance complaint, the Tribunal also upheld his complaints that the Claimant and his Muslim colleagues were “teased” by Mr Tupling during Ramadan between 20 September and 19 October 2006 by offering them pork-based food (complaint (b)) and, further, that in disciplining him for telephoning his pregnant partner on 14 May 2007 the Respondent victimised him because he had raised earlier complaints of racial and religious discrimination (complaint (i)).  As to the complaint of constructive dismissal, the Tribunal set out their reasoning at paragraph 44.  It is not necessary for us to repeat that for purposes of this judgment. 

The Appeal
12.	In advancing the Respondent’s appeal, Mr De Marco takes essentially three interlocking points which may conveniently be taken in the following order.  They are (1) that the Smail Tribunal’s decision to revisit the list of issues identified by Judge Mahoney at the CMD held on 2 January 2008 placed Mrs Harvey, who is not a lawyer, and, therefore, the Respondent at an unfair disadvantage (the case management point); (2) that at paragraph 33 of their reasons the Tribunal failed properly to explain why the Claimant succeeded in passing stage 1 of the Igen v Wong test to show a prima facie case of unlawful discrimination in relation to the grievance complaint (the Meek point); (3) that the Tribunal misdirected themselves in law in their approach to the stage 1 question at paragraph 33 (the misdirection point).  He accepts that the challenge to the grievance finding by the Tribunal is key to his appeal.  If he fails on each and every one of the three challenges identified above, then the appeal fails and the Tribunal judgment must stand.

13.	As to the case management point, we bear in mind that at the CMD Judge Mahoney was dealing with, effectively, litigants in person.  We have been shown his Case Management Order dated 22 January 2008.  In addition to omitting both the grievance and leave allegations which are clearly raised in the first ET1 form, it is also pointed out that no limitation issue was there raised for determination at the substantive hearing, although the Smail Tribunal did consider that jurisdictional issue.  In our judgment there was no unfairness in the Smail Tribunal raising the two missing allegations at the outset of their hearing.

14.	Just as Mrs Harvey is not a lawyer, although we are told that she had previously conducted Employment Tribunal hearings, nor is the Claimant.  It was perfectly legitimate for the Smail Tribunal to enquire, having read the pleadings, whether the omissions from the list of issues were deliberate.  Having been told by the Claimant that he did not abandon the two missing claims Mrs Harvey was given an opportunity to and did oppose their addition to the list of issues.  The Tribunal having ruled in favour of those additions, Mrs Harvey did not seek an adjournment.  She carried on and gave evidence herself as the crucial witness for the Respondent on the grievance issue.  In our view, given that the hearing last for five days, no unfairness was caused to the Respondent balancing the need to determine the issues between the parties.  We, therefore, reject the first ground of complaint in this appeal.

15.	Turning next to the Meek point, we are not persuaded that the Tribunal’s reasons as a whole failed to explain why the Respondent lost on the grievance point.  In answer to the reason why question posed by Lord Nicholls in Shamoon (Appellant) v. Chief Constable of the Royal Ulster Constabulary (Respondent) (Northern Ireland) [2003] ICR 337and adopted by Elias J in The Law Society v Bahl [2003] IRLR 640 in this Tribunal, the reason why the Claimant passed the first Igen hurdle in relation to the grievance complaint was that, whereas Mrs Harvey spoke to members of management and two white female controllers, she consciously decided not to speak to the Claimant’s witnesses, whom we are told were Muslim, or other Muslim employees because, she told the Tribunal, she considered they may be biased.  That pointed to bias on her part, the Tribunal concluded at paragraph 31.  She could rely on what non-Asian or Muslim members of staff had to say but not on Muslim employees about allegations of racial and religious discrimination made by an Asian/Muslim employee, the Claimant.  The proposition merely needs to be stated to see how the racial and religious elements came together to establish a prima facie case which Mrs Harvey was unable to rebut either by showing that her treatment of the Claimant’s grievances was untainted by race or religion (on the contrary, plainly it was) or by showing that a grievance about unfair treatment by a white non-Muslim employee would have been dealt with in the same way.

16.	It follows from what we have said that not only did the Tribunal provide sufficient reasons for their determination of the grievance complaint but also that they correctly approached that matter in law.  There was ‘something more’ in this case, as Mummery LJ put it in Madarassy v Nomura International Plc [2007]ICR 867.  Not only was their self‑direction unexceptional, they also demonstrated, as Ms George submits, a correct approach, both in relation to the seven complaints which were not upheld but also the other two complaints which were upheld and which are not challenged by the Respondent in this appeal.  

17.	For these reasons this appeal fails and is dismissed and the Tribunal’s judgment is affirmed.