Appeal No. UKEAT/0096/09/CEA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 October 2009
	   Judgment handed down on 4 December 2009

Before
HIS HONOUR JUDGE PETER CLARK
MR P GAMMON MBE

MRS L TINSLEY

CARTAMUNDI UK LTD	APPELLANT

MRS P WORBOYES	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MISS JUDE SHEPHERD
(of Counsel)
Messrs Palmers Solicitors
19 Town Square
Basildon
Essex
SS14 1BD	
For the Respondent	MS NAOMI CUNNINGHAM
(of Counsel)
Messrs Edwards Duthie Solicitors
292-294 Plashet Grove
East Ham
London
E6 1EE	

SUMMARY
RACE DISCRIMINATION
Comparison
Direct
VICTIMISATION DISCRIMINATION
Other forms of victimisation
Relevance of out of time complaints by way of background evidence in determining timeous complaints of discrimination/victimisation.  

Comparators and the ‘reason why’ question.

HIS HONOUR JUDGE PETER CLARK

1.	The parties to these proceedings before the Stratford Employment Tribunal are Mrs Worboyes, Claimant, and Cartamundi UK Ltd, Respondent.  We shall so describe them.  This is an appeal by the Respondent against findings of direct racial discrimination and victimisation made against them on the Claimant’s complaint in a judgment with reasons promulgated on 29 December 2008 by an Employment Tribunal chaired by Employment Judge Jones (the Liability Judgment).  

Background

2.	The Claimant, a black woman, commenced employment with the Respondent as a bench hand in their print finishing and specialist card manufacturing business operating from premises on the Charfleet Industrial Estate, Canvey Island in April 2000.  

3.	In May 2004 she commenced a successful three month probationary period as a Quality Control (QC) operative.  She was confirmed in that post in September 2004.  Her hourly rate of pay increased from £5.75 to £6.15.  

4.	On 10 September 2004 the Claimant spoke to an agency worker about the quality of his work.  Freda George, a white woman and QC controller remarked to the Claimant;

“You are only a nigger what do you know? I am not putting up with people like you walking around like you own the place.”  

5.	That remark, which left the Claimant shocked, insulted and taken aback, the Employment Tribunal found, lies at the heart of what followed.

6.	It is material that Freda George and their supervisor in the QC Department, Nicola Lawson, did not give evidence before the Employment Tribunal.  There was a factual dispute as to when the Claimant first reported Ms George’s racist comment to the Respondent.  It was the employer’s case that it was not until she made a written complaint to Lisa Taylor, HR Officer, on 6 March 2006.  The Claimant said that she first reported it to Nicola Lawson on her return from holiday on 17 September 2004.  The Employment Tribunal accepted the Claimant’s account.  Ms Lawson said that she would speak to John Norwood, QC manager.  Thereafter she prevaricated; saying that she had not had time to speak to Mr Norwood.  

7.	Ms George continued to make critical comments about the Claimant.  Their previously good relationship became soured.  Ms George refused to share jobs with the Claimant and ostracised her.  

8.	Having received no worthwhile response from Ms Lawson the Claimant took up her complaint directly with Mr Norwood on 9 May 2005.  He convened a meeting with the Claimant, Nicola Lawson and Freda George.  Asked what was her problem with the Claimant, Ms George mentioned two work matters, which the Employment Tribunal found were part of the Claimant’s duties and said that she did not like the Claimant, who was sarcastic and ‘did her make-up at work’.  She would find the Claimant more tolerable if she was paid more than her.  No action was taken against Ms George and the pair continued working together.  

9.	On about 13 May 2005, the Claimant raised her concerns over Freda George’s treatment of her with Lisa Taylor.  Her complaint was not taken seriously, the Employment Tribunal found.  

10.	On 17 May 2005, an incident occurred when Freda George opened a drawer and struck the Claimant on the leg.  When the Claimant complained Ms George took a tape gun out of the drawer and held it over the Claimant’s head in a threatening way, glaring at her before walking away.  

11.	Again, the Claimant complained.  Mr Norwood called another informal meeting; he told Ms George that if she did not change her behaviour she would be returned to the work bench.  However, no disciplinary action was then taken against her.  

12.	Thereafter, as a way of dealing with the problem with Ms George, the Claimant attempted to develop a friendship with Ms Lawson.  This proved unsuccessful.  Ms Lawson and Ms George were on friendly terms.  

13.	In January 2006, Ms Lawson was due to go on maternity leave and the Claimant was informed, at her annual appraisal attended by Ms Lawson and Mr Norwood, that management’s intention was that Ms George would act up as supervisor of the QC Department.  

14.	The Claimant was concerned about this proposal; the last time Freda George had acted up, when Ms Lawson was on holiday in September 2004, she had been subjected to the racial remark.  She communicated her concern to the Respondent.  

15.	Meanwhile, at her appraisal, Ms George told Mr Norwood and Ms Lawson that when she was put in charge of the Department she would put the Claimant back on the bench.  She was not admonished for that observation.  

16.	On 7 February 2006, the Claimant made a written complaint about the earlier incidents which we have outlined.  

17.	A management meeting took place on 27 February 2006, attended by John Norwood, Nicola Lawson and Lisa Taylor.  The Claimant’s complaints were not acknowledged but Ms Lawson reported that she had had a complaint from Freda George that she could no longer work with the Claimant in the QC Department.  The outcome of the meeting was that both the Claimant and Freda George were to be asked to put in writing the issues they had with each other.  

18.	A meeting took place on 2 March 2006.  Mr Norwood asked the Claimant to drop her complaint against Ms George and against Nicola Lawson.  She refused.  

19.	The meeting ended on 2 March with the Claimant being told by Ms Lawson that she would be returned to the bench.  She was thus demoted.  

20.	On 6 March Ms Lawson raised a written complaint against both the Claimant and Ms George.  She complained that she was ‘piggy in the middle’ between the two women.  She also recorded that on 24 February 2006 the Claimant had come into work, greeting her colleagues with the words ‘good morning bitches’.  

21.	A further meeting was held on 7 March, attended by Ms Lawson, Ms George, the Claimant, Lisa Taylor and Paul Roberts, General Manager.  Mr Roberts considered that matters needed to be sorted out because Ms Lawson, then heavily pregnant, was becoming distressed.  The Claimant’s complaints were not addressed at the meeting.  The outcome was that Mr Roberts decided to suspend both the Claimant and Ms George and return both to the bench.  

22.	The Claimant was told that if she wanted to complain she could go to the Chief Executive, Chris Van Dooslaer and if she did so ‘she should make sure she had her facts straight or they, the Respondent would throw their lawyers at it’.  She regarded this as a threat.  The Employment Tribunal found (paragraph 39) that this warning was inconsistent with the Respondent’s Equal Opportunities Statement, which spoke of complaints being thoroughly and expeditiously investigated and amounted to a fact from which the Employment Tribunal could refer (sic. infer) less favourable treatment on the grounds of race.  Thereafter, apart from one day’s work on 27 April, the Claimant was off sick never to return.  

23.	She then raised a grievance under the equal opportunities policy, complaining of racial harassment and bullying and of being punished for putting her grievances in writing.  The Respondent sought to take a compromise position by pitching the hourly rate of pay for both the Claimant and Freda George at £5.90 per hour, between the bench rate of £5.75 and the QC operative rate of £6.15.  

24.	An appeal against her demotion to the bench was rejected.  

25.	A grievance hearing was held on 20 June at which, startlingly, Mr Norwood stated that he did not know what the Claimant’s complaints were about.  

26.	The Respondent sought statements from work colleagues as to whether they had witnessed any racial comments.  A further grievance meeting took place on 30 June at which, for the first time, the Claimant’s written complaints in her letter dated 7 February were heard.  In that letter she specifically set out the racial remark made by Freda George on 10 September 2004.  Her grievance was held to be unfounded.  Both women were held to have behaved the same and the Claimant was worse.  The Claimant was blamed for not bringing the matter to Mr Norwood’s attention earlier.  

27.	Dissatisfied with the Respondent’s response to her grievance, set out in a letter dated 17 July 2006, the Claimant wished to take the matter further.  However, on 16 July she was suspended (although still off sick).  She re-submitted her grievance and appeal against demotion on 1 August, complaining of racial harassment and abuse by Ms George.  

28.	Only then was an in-depth investigation carried out.  Ms Lawson accepted that in September 2004 Freda George had told her about the offensive remark which the Claimant ‘assumed’ she had made; something which Mrs George denied.  

29.	A meeting took place on 22 September to consider both the Claimant’s grievance and disciplinary appeal.  Twice the Claimant burst out laughing during the meeting due to her frustration at the way in which the Respondent was conducting the matter.  Her appeal against the grievance finding was unsuccessful.  When she did not attend a meeting on 15 September to consider her disciplinary appeal the Respondent treated that matter as closed.  

Employment Tribunal Proceedings

30.	She presented a Form ET1 on 28 December 2006, still in the employment, attaching a letter from Essex Racial Equality Council to the Respondent dated 24 November 2006, complaining of both direct and indirect race discrimination and victimisation.  The claims were resisted on their merits by the Respondent, which also took a point on limitation.  

31.	At a Pre-Hearing Review (PHR) held before Employment Judge Duncan on 21 January 2008 the Judge identified fifteen separate complaints of direct discrimination and/or victimisation made by the Claimant beginning with the racial remark made by Ms George on 10 September 2004.  The Claimant then represented herself.  At paragraph 8 of his PHR reasons dated 20 February 2008, the Judge ruled nine of the fifteen complaints out of time.  The six remaining complaints are set out at paragraph 2 of the Jones Tribunal’s reasons.  Judge Duncan observed, at paragraph 8 of his reasons that:

“It may well be that Mrs Worboyes will still wish to give evidence of these events (the nine complaints ruled out of time) as setting the scene for what follows, but she will not be able to obtain any remedy as they are struck out as being out of time.”

32.	By their liability judgment, at paragraph 65, the Jones Tribunal found that the racial comment by Freda George on 10 September 2004 and the Respondent’s failure to take action against her for that remark were facts from which the Employment Tribunal could infer less favourable treatment against the Claimant on grounds of her race.

33.	At paragraphs 66 - 88 they consider each of the six live complaints and find each of them to be made out for the reasons there given.   

34.	Thereafter a remedy hearing was held on 9 February 2009.  By its Remedy Judgment dated 9 March the Jones Employment Tribunal awarded compensation totalling £36,728.83 in favour of the Claimant.  Neither party has appealed that Judgment.  

The Law

35.	The Respondent’s grounds of appeal make no direct challenge to the Employment Tribunal’s self-direction as to the law contained in paragraphs 61 – 65 of their reasons.  That is a realistic position to take.  We can find nothing exceptionable about those directions, which accurately reflect the applicable statutory provisions, as explained in the leading cases to which reference is made.  

36.	During the course of argument I invited Counsel to provide further submissions in writing on two specific questions.  They were:

(1)	In relation to ‘background evidence’, to what extent can complaints of discrimination that have been ruled out of time be relied on in determining timeous complaints?  and

(2)	Whether the ‘reason why’ question applies equally to complaints of victimisation as well as to claims of direct discrimination?  

37.	We are grateful to both Counsel for their prompt responses.  Having considered those further submissions there appears to be a measure of agreement between Counsel.  We direct ourselves in law on those questions as follows: 

(1)	Where acts done within time are related to acts done out of time the latter may inform the Employment Tribunal’s determination on the in time acts, although the out of time acts cannot give rise to an award of compensation see Eke v Commissioners of Customs & Excise [1981] IRLR 332; Chattopadhyay v Headmaster of Holloway School [1981] IRLR 487; Din v Carrington Viyella Ltd [1982] IRLR 281.  We also note that in Qureshi v Victoria University of Manchester [2001] ICR 863 (Note) Mummery P directed employment tribunals to consider the whole of the factual history advanced by the Claimant, including acts which were out of time and not live complaints of discrimination.  A piecemeal approach to the various alleged acts complained of was deprecated.  That guidance was expressly approved by the Court of Appeal in Anya v University of Oxford [2001] ICR 847.  

2)	The ‘reason why’ question articulated by Lord Nicholls in the direct discrimination case of Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285, applies equally to cases of victimisation, as His Lordship made clear in his opinion in Chief Constable of Yorkshire Police v Khan  [2001] ICR 1065, paragraph 29.  

38.	Thus it is legitimate for an Employment Tribunal to ask itself the reason why the employer acted as it did in answering both the direct discrimination and victimisation questions.  

The Appeal

39.	The first point taken by Miss Shepherd (grounds one and two) is that the Employment Tribunal, at paragraph 65 of their reasons, impermissibly made findings of unlawful discrimination in relation to two complaints, the racial remark made by Ms George on 10 September 2004 and the Respondent’s failure to take action against Ms George for her insulting and offensive conduct towards the Claimant.  

40.	We disagree.  It is clear to us from the layout of the Employment Tribunal’s reasons that (a) they appreciated that acts prior to 2 March 2006 constituted background evidence only as a result of Judge Duncan’s ruling at the PHR in January 2008 (their reasons, paragraph 2); (b) from paragraph 66, that the only live allegations were the six commencing on 2 March 2006, which they went on to consider, but (c) that what happened before that date (see paragraph 65) may inform their decision on the live complaints.  Further, whilst we have been shown the Remedy Judgment and Reasons, it is not open to Miss Shepherd to complain that the award of compensation may have reflected pre-2 March 2006 complaints since there is no appeal against that Judgment; any more than it would be open to Ms Cunningham now representing the Claimant, to complain of Employment Judge Duncan’s finding that there was no continuing act such as to bring into account all complaints by the Claimant going back to 10 September 2004.  

41.	The Second broad attack by Miss Shepherd (grounds three and five) is directed to the comparators employed by the Employment Tribunal.  Thus it is said that a hypothetical comparator was inappropriate in relation to the complaint that Mr Norwood had discriminated against the Claimant on 2 March 2006 in rejecting her complaint against Ms Lawson (reasons paragraph 2(1); 67-69); a proper comparator would have been Ms George.  However, as Ms Cunningham points out, Ms George made no complaint against Ms Lawson.  Thus, in our view, this complaint by Miss Shepherd must fail.  

42.	Next, it is said that the Employment Tribunal erred in failing to consider a comparator in respect of the extant victimisation claims based on the Claimant’s demotion to the work bench with a reduction in her hourly rate of pay.  We refer back to the point in Khan.  The Employment Tribunal was perfectly entitled (paragraphs 73 – 74) to ask itself the reason why question in accordance with their self-direction at paragraph 61 (v).  

43.	Finally, Miss Shepherd relies on the fact that ultimately the Claimant and Ms George were both treated in the same way by the Respondent; both were demoted to the bench and their pay reduced identically.  No proper comparison can be made between the two women; Ms George had a complaint of racial discrimination against her; the Claimant had not.  

Conclusion

44.	In these circumstances we are not persuaded that any error of law is made out in the Jones Tribunal’s reasons.  Consequently this appeal fails and is dismissed.