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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Elegbede v Nexen Petroleum UK Ltd [2010] UKEAT 0298_10_0811 (8 November 2010) URL: http://www.bailii.org/uk/cases/UKEAT/2010/0298_10_0811.html Cite as: [2010] UKEAT 298_10_811, [2010] UKEAT 0298_10_0811

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APPEARANCES

 

For the Appellant	DR A ELEGBEDE (The Appellant in Person)
For the Respondent	MS IJEOMA OMAMBALA (of Counsel) Instructed by: Messrs Lewis Silkin LLP Solicitors 5 Chancery Lane Cliffords Inn London EC4A 1 BL


 


SUMMARY

VICTIMISATION; DISCRIMINATION; DISMISSAL

Race discrimination. Sex discrimination. Employment Tribunal found that a Claimant who had done a protected act (he had complained of race discrimination) had, in one respect, suffered less favourable treatment than a comparator who had not carried out such an act would have done. Claim failed, however, since Tribunal also found that the allegation on which the Claimant's complaint was based was false and made in bad faith.

Appeal dismissed.


 


THE HONOURABLE LADY SMITH

Introduction

1. This is an employee's appeal against the judgment of an Employment Tribunal sitting at Watford, chaired by Employment Judge Southam, registered on 22 January 2010, dismissing the Claimant's claims of sex and race discrimination and unfair dismissal. We will continue referring to parties as Claimant and Respondent.

Background

2. The Respondent explores for and exploits oil and gas reserves and operates four fields in the North Sea. The Claimant, who is black and of Nigerian origin, was employed by them as a petrophysicist between 21 May 2006 and 26 November 2008, when he was dismissed. The Claimant was originally employed to cover the maternity leave of another petrophysicist, Kate Hatfield, but was retained by the Respondent after she returned to work in June 2007.
3. The details of the structure within which petrophysicists and others worked in the Respondent's organisation are clearly explained in the judgment of the Employment Tribunal. For present purposes, it is sufficient to mention that from June 2007, there was a single team of petrophysicists comprising the Claimant and Kate Hatfield, both as senior petrophysicists, a junior petrophysicist and an independent contractor.
4. In January 2008, the petrophysicists were reorganized. The Claimant was allocated to the Respondent's Buzzard oil field, reporting to a subsurface team leader, Joel Turnbull, and Kate Hatfield was allocated to report to a man called Steve Flack, with primary responsibility for exploration support. Nothing in the appeal turns on that reorganisation.
5. Difficulties arose as between the Claimant and Kate Hatfield after she returned from maternity leave, the causes of which are detailed in the Tribunal's judgment. They included that the Claimant sent emails to Kate Hatfield which, with some justification, she considered were sexist and condescending (with regard to which a team leader, Mr Rhodes, told him he required to be more careful and thoughtful), that he treated her as his subordinate (which she was not) and that he styled himself as "lead petrophysicist" (which he was not). Kate Hatfield did not make any formal complaint about the Claimant's treatment of her.
6. The Claimant alleged, in a written grievance, that Kate Hatfield had discriminated against him on grounds of race. He alleged that she had, on an occasion in July 2007, expressly stated that she would not be prepared to report to him because he was black. That allegation was not, however, made until on or about 11 October 2007, the date of his written grievance. He had made no such allegation prior to that date. The Respondent investigated the grievance, concluded that he was lying and were satisfied that Kate Hatfield did not make the remark alleged. He was advised that his grievance was not upheld. He did not appeal that outcome. The Employment Tribunal also found as fact that Kate Hatfield did not make the remark alleged.
7. The Claimant made a further complaint of race discrimination on the part of Kate Hatfield. The subject matter of the complaint had not formed part of any formal grievance. Put shortly, Kate Hatfield had, in September 2007, arranged for a presentation to be made to employees who were users of certain software, by a representative of the manufacturer, on Friday 28 September 2007. A high proportion of staff were regularly absent on Fridays, as all employees worked a 9 day fortnight. The Friday date was, however, the only date that suited the representative who was to make the presentation. The Claimant was such a user and was advised of the meeting. Unbeknown to Kate Hatfield when she fixed the meeting, the Claimant was due to be absent that day. The Claimant had not marked his proposed absence on the electronic calendar to which Kate Hatfield had access. She apologised to him about the clash when she found out and explained that it was the only day that the representative could attend. In an email to Mr Rhodes, the Claimant complained about "segregation and exclusion" in relation to Kate Hatfield's fixing of that meeting. He made the same complaint at a subsequent meeting with him. He said that if the meeting went ahead he would make a formal complaint that he was being discriminated against. He did not, however, do so.
8. The Employment Tribunal concluded that the Claimant's allegation of discrimination by "segregation and exclusion" in relation to that meeting was "both false and not made in good faith" at paragraph 82 of their judgment. They explain their reasons for so concluding at paragraph 83:

"… the allegation was clearly false. Reference to the emails shows that the claimant complained that the meeting had been fixed for a Friday. Dr Hatfield replied to apologize and said that the Friday was the only day that the representative could attend and she said that it would be helpful for the future if they all mark there (sic) days out as 'out of office' on their electronic calendars. By inference the claimant had not done this. The claimant could therefore see in Dr Hatfield's email the way in which the meeting booking had arisen and know that the allegation was baseless. Not only was the allegation not true; the claimant was not being deliberately segregated or excluded, it seems to us that the same emails show that the allegation was not made in good faith. The claimant's first email sent at 10.45 on September 19 showed that his objection to being excluded from the meeting was based up on (sic) his determination that the company should not consider using the software that was to be demonstrated."

9. The Claimant lodged other grievances which were not upheld. He did not appeal. They concerned an allegation that he had been removed from the position of "lead petrophysicist" and that he had been marked down at appraisal in early 2008 because of having presented prior grievances (as a consequence of which he did not receive the increase in pay and bonus that he had hoped for). He continued to state that he had been "cheated" after the rejection of his grievance.
10. Regarding the Claimant's appraisal early in 2008, he was angered at the outcome and shouted at fellow employees in a threatening and intimidating manner. The Respondent's HR general manager wrote to him in a letter which ended by advising him that:

"… any repetition of your behaviour yesterday when you were verbally and physically intimidating will result in disciplinary action. We are not willing to tolerate intimidation of members of staff."

11. Other difficulties arose. At a mid year review meeting in 2008, the Claimant behaved aggressively and made a gratuitous and offensive remark about rape. He subsequently made quite inappropriate remarks about women and rape at a grievance meeting. Also, the Respondent reached the conclusion that there had been a serious breakdown in relationships exemplified by matters such as the Claimant failing to engage in effective discussion at an appraisal meeting, his reacting aggressively to criticism, colleagues finding that he was confrontational to work with, his conduct at team meetings making it impossible to have normal team meetings, his failing to engage with the Respondent's efforts to find a solution to matters raised in his grievances whether through mediation or otherwise, and his insisting on repeating his allegations regarding the appraisal marking that failed to secure him the increase in pay and bonus he had hoped for even after his grievance had not been upheld, he had not appealed and he had not raised any fresh basis on which the original grievance could properly be renewed. He was suspended in August 2007 and raised a grievance to the effect that his suspension was an act of sex discrimination because when complaints had been made by him to the effect that he had been discriminated against by Kate Hatfield and by Keith Henderson (in relation to his appraisal) those persons had not been suspended. He seemed to regard the decision as having been tainted by gender considerations because the majority of the Respondent's HR department were female.
12. The Claimant was invited to a disciplinary meeting and given notice of the issues that would be considered at that meeting in a letter from the Respondent's HR Manager dated 4 September 2008. There were, essentially, two aspects to the Respondent's concerns that led them to consider dismissing him. The first was his conduct at the mid year review meeting to which we have referred. The second was the breakdown in relationships between the Respondent and the Claimant. In that letter there was a section headed "Background" which summarized difficulties that had arisen from June 2007 up to and including the mid year review meeting. The fact that he had raised grievances and that those grievances had not been upheld was amongst those matters referred to. The letter also referred to his "segregation and exclusion" complaint i.e. a complaint which had not resulted in a grievance being intimated. With regard to it, the letter stated:

"5. In mid September, Kate fixed a meeting regarding an upgrade for some software. It transpired that you were away on that day. Kate apologized to you and explained that the date suited other users. Your response was that you would consider it 'SEGREGATION AND EXCLUSION' (your emphasis) if the meeting went ahead as planned. You said that if the meeting went ahead, you would make a formal complaint of discrimination. That was an excessive and unwarranted response; there was nothing at all to suggest discrimination."

13. The disciplinary hearing was heard by the Respondent's Finance Director, Marilyn Schonberner, who had recently arrived in the UK from Canada and had had no prior dealings with the Claimant or his colleagues at work. Having considered the evidence in support of the two concerns outlined in the letter of 4 September 2008, she found that the Claimant had behaved at the mid year review meeting in the manner alleged and that there had been a breakdown in relationships for the various reasons set out. She went on to consider whether reconciliation was possible but decided that it was not. She gave reasons for that conclusion including that the Claimant had been "needlessly obstructive over an entirely reasonable request that you see our medical advisor", that he had failed to attend the resumed disciplinary hearing without any proper reason, and that he had engaged in a "grossly exaggerated" reaction to finding that an HR employee knew about the state of his health. He was accordingly dismissed. He appealed, unsuccessfully.
14. The above summary of the background facts is restricted to those matters which appear to us to be relevant to the issues raised on appeal. We do, however, recognise that many more aspects of the history of the Claimant's employment were explored at the hearing before the Tribunal and, furthermore, that they have clearly and diligently made findings in fact and conclusions in law regarding all the issues before them.

Issues for the Tribunal

15. This was a case in which parties had helpfully agreed, in advance, the issues which they considered that the Tribunal required to address. They were twenty six in number and we mean no disrespect to the care and attention that evidently went into their drafting and agreement by not repeating them in this judgment. They appear in full in the Tribunal's written reasons. The only issues that proved to be relevant in the appeal were:

"Direct Discrimination
Where the claimant has alleged that the respondent has been treated less favourably than the respondent treated or would treat other persons; and

(a) the claimant has been treated less favourably than the respondent treated or would treat other persons; and

(b) the less favourable treatment was on racial grounds.

Where the claimant has alleged that the respondent has directly discriminated against him on the grounds of his sex, the tribunal must satisfy itself that:

(a) the claimant has been treated less favourably than the respondent treated or would treat a woman; and

b) the less favourable treatment was on the grounds of the claimant's sex."

and

"Issue Three (but only in relation to a continuous act claim – not separate claim itself)

15. As a question of fact did the respondent through the actions of Emma Stephenson, discipline the claimant with a written warning in the first quarter of 2008 without any hearing?

16. If yes was this an act of:

(a) direct discrimination

(b) victimization and/or

(c) harassment contrary to the Race Relations Act 1976?"

16. The letter referred to in issue 3 is the letter to which we refer above in paragraph 10.

Paragraph 82 of the Tribunal's Judgment

17. The Claimant's submissions in the appeal centred on paragraph 82 of the Tribunal's judgment and, accordingly, we should set it out in full:

"Miss Stephenson's long letter of 4 September contained reference to the claimant's first two grievances and to his complaint of segregation and exclusion. To make a proper comparison for the purposes of a victimization claim the comparator is a person who has not done the protected acts. It follows therefore that the comparator is accused of similar misconduct but who has not raised complaints in the way the claimant did. The tribunal is of the view that it is less favourable treatment for the respondent to refer in the letter of 4 September to the complaints that the claimant made, in a manner which brings into consideration the view of the writer of the letter about those matters. Miss Stephenson made reference to those three complaints. As regards the formal grievances she stood back and accurately stated that the grievances had been investigated and not upheld. As regards the complaint of segregation and exclusion she said that it was unwarranted and an excessive reaction for the claimant to say he had been segregated and excluded by Dr Hatfield's arrangements for a Friday meeting. Miss Stephenson also made a personal judgment about that matter, which had potential to influence the ultimate decision maker. With regard to the other matters, her reference to them was purely factual. We regard this as less favourable treatment. It must follow from the circumstances of the comparator that no complaint had been made. Miss Stephenson ought not therefore to have included these comments if she was to treat the claimant as if he had not made those complaints. Since the inclusion of that matters amounts to less favourable treatment in the 'indictment', it is necessary to consider whether or not the allegation made by the claimant was both false and not made in good faith."

Relevant law

18. The Tribunal referred appropriately to the relevant provisions of the Race Relations Act 1976 and Sex Discrimination Act 1975 noting not only those which cover direct discrimination but those which provide for victimization and harassment and, in the case of the protected characteristic of gender, those which provide for indirect discrimination. They also noted the provisions of both statutes which provide for the "reverse burden of proof" and the guidance in Igen v Wong [2005] IRLR 258, Laing v Manchester City Council [2006] IRLR 748, Shamoon v Chief Constable of the RUC [2003] IRLR 285 and Madarassy v Nomura International Plc [2007] IRLR 246. Given the findings in fact in this case, the guidance in Madarassy to the effect that the burden of proof does not shift simply because a claimant establishes a difference in status and a difference in treatment seems to be of particular relevance. Indeed, the Claimant himself stressed that it was only if the facts were such that an Employment Tribunal could properly draw the conclusion that discrimination may have occurred that the burden shifted.
19. For present purposes, we need only refer expressly to those provisions which exclude a claimant from the protection of the legislation. That is, whilst the Sex Discrimination Act provides, at section 4(1) that:

"4(1) A person … discriminates against another person … 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 –

(d) alleged that the discriminator … has committed an act which … would amount to a contravention of this Act …"

Section 4(2) provides:

"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."

20. Similarly, whilst the Race Relations Act 1976 provides, in section 2(1) that:

"2(1) A person … discriminates against another person … if he treats the person victimized less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimized has –

(d) alleged that the discriminator ... has committed an act which … would amount to a contravention of this Act."

Section 2(2) provides:

"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."

The appeal

21. The Claimant's Notice of Appeal contained a number of grounds but following the sift, only the first ground was allowed through to a full hearing. It was in the following terms:

"The Employment Tribunal failed to properly or at all apply the provisions of the Race Relations Act 1976 and the Sex Discrimination Act 1975."

22. The Claimant addressed us in support of his appeal. On his analysis, the Tribunal should have found in his favour. That was because they had found that he had suffered less favourable treatment due to protected acts and, in the case of his claim under the Sex Discrimination Act, that the reverse burden of proof applied and had the effect of showing that his less favourable treatment was to be regarded as being due to protected acts.
23. The Claimant approached matters on the basis that he read the Respondent's skeleton argument as disclosing that they accepted that protected acts were amongst the background matters referred to and that relationships broke down because of those protected acts. It followed that they had effectively accepted that the reason for his dismissal included protected acts (because it included the breakdown in relationships).
24. It was apparent that, in submitting that the Tribunal had found that he had suffered less favourable treatment, the Claimant had in mind the Tribunal's reasoning at paragraph 82 of their judgment and that he read it as amounting to their concluding that he had suffered less favourable treatment in three separate respects. The Tribunal had, he submitted, then erred in considering only the "factuality" when they should have considered the totality of the evidence. It followed from that that application of the reverse burden of proof would and should have led to a finding of unlawful discrimination on grounds of sex. It seemed that he also sought to argue that a finding of race discrimination ought to have been made with regard to those matters covered in paragraph 82.
25. In answer to questioning as to what primary facts he was relying on in support of his submission that the reverse burden of proof should have applied, the Claimant said that he was referring to his grievance about his suspension in August 2007 having been an act of discrimination on grounds of sex, the less favourable treatments referred to by the Employment Tribunal at paragraph 82 which were, he said, three in number, the fact of his suspension, the fact of his having received a written warning and the fact of his dismissal.
26. In a separate chapter of his submissions, the Claimant submitted that the Tribunal had erred in failing to conclude that the letter he received from Miss Stephenson to which we refer at paragraph 10 above, amounted to less favourable treatment of him. He did not, at this point of his argument, seek to suggest that the letter was a formal written warning. Indeed, he stated that he was not saying that it was a written warning. However, the Tribunal ought, he submitted, to have found that a reasonable employee would have considered that it amounted to less favourable treatment.
27. Finally, the Claimant submitted that the Tribunal had erred in failing to find that resurrection of old grievances was a protected act. It was a reason for his dismissal and since the old grievances were protected acts that meant he had been dismissed for protected acts.
28. In the course of his submissions the Claimant referred to Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830, Pothecary Witham Weld v Bullimore & Prs [2010] IRLR 572, the judgment of Mummery LJ in the Court of Appeal in St Helen v Derbyshire & Ors [2005] IRLR 801, Anya v University of Oxford [2001] IRLR 377, Alexander v Bridgen Enterprises Ltd [2006] IRLR 422, Davies v Farnborough College of Technology [2008] IRLR 14 and Salford NHS Trust v Roldan [2010] EWCA Civ 522. The last three authorities were relevant to a submission that appeared to be to the effect that the Respondent should have been found to have failed to comply with the statutory dismissal procedures because in disciplining the Claimant they were discriminating against him and, accordingly, his dismissal was automatically unfair. We observe, however, that no such ground of appeal passed the sift.
29. On behalf of the Respondent, Ms Omambala addressed us in support of a clear and helpful skeleton argument and invited us to dismiss the appeal. Her submission was, in essence, that the Claimant had made four allegations of discrimination which occurred, he said, because he had done protected acts. However, the Tribunal had found that only one of those protected acts gave rise to less favourable treatment, namely the reference in the letter of 4 December not only to the fact of him having alleged "segregation and exclusion" in relation to the Friday meeting but to its author's view of that allegation. However, they then went on to find that the allegation was a false one which had been made in bad faith. That brought sections 2(2) of the Race Relations Act and 4(2) of the Sex Discrimination Act into play and meant that the Claimant could not claim that he had been victimised. The Claimant's case was based on a false premise, namely that his allegation about the Friday meeting was a protected act which had caused him to suffer less favourable treatment and, furthermore, that his protected acts as a whole were reasons for his dismissal. The Tribunal had, however, specifically found that he was not victimised in relation to the Friday meeting matter and, as a matter of fact, his protected acts did not cause his dismissal. At paragraph 86 the Tribunal had stated that they could not identify any factors to suggest that the Claimant's protected acts played any part in the Respondent's actions in relation to the disciplinary process and it was not suggested to Ms Schonberner, the Finance Director who took the decision to dismiss him, in cross examination, that they had. The Claimant had declined the opportunity to cross examine despite it having been clearly explained to him that he was entitled to do so and him having assured the Tribunal that he was familiar with Employment Tribunal procedure. We should, at this point, observe that the Claimant advised in the course of the appeal that he quite deliberately decided not to cross examine as he considered that the Respondent's witnesses had given evidence which supported his case. Ms Omambala summarised her position on the central theme of the appeal as being that the Tribunal had heard evidence regarding the operative reasons for the Claimant's dismissal, the Claimant did not challenge that evidence and the Tribunal accepted it. They could not have found that protected acts were a causative factor in his dismissal.
30. Regarding the Claimant's submissions to the effect that the Tribunal should have found that the letter in which he was warned not to repeat certain behaviour amounted to less favourable treatment, Ms Omambala pointed out that that was not and never had been one of the agreed issues. The letter was only referred to in the list of issues at paragraphs 15 and 16 under the "Issue Three" heading in relation to time bar considerations and it had not been the Claimant's case that it of itself amounted to such treatment. Regarding the issue of whether or not resurrection of an old grievance could amount to a protected act, whilst she could see that, depending on the facts and circumstances of an individual case, it might, the Claimant had no relevant case to that effect here. The Respondent's position was that the Claimant's repetition of a grievance which had been determined did not, in the circumstances, constitute a protected act, the Tribunal had not found that it was nor did they require to do so and in any event, it had never been suggested to Ms Schonberner that such an act on his part had featured in any way in her reasoning when deciding to dismiss him.
31. Regarding the Claimant's suggestion that the Tribunal had found that the breakdown in relationships was due to his protected acts, that was not correct. That was plain from the reasoning that was set out in the detailed letter to the Claimant from Ms Schonberner explaining why she had decided to dismiss him.

Discussion

32. First, we are satisfied that some of the arguments that the Claimant sought to advance were not foreshadowed by his first ground of appeal and they must, for that reason alone, be rejected. The first of these is the argument that the Tribunal should have found that the letter sent in the first quarter of 2008, in which the Claimant was warned not to repeat certain behaviour amounted to less favourable treatment. We accept that no such issue was before the Tribunal and they can hardly, accordingly, be criticised for not having determined it. In any event, on no view could that letter have amounted to less favourable treatment; it seems to us self evident that any hypothetical comparator who had conducted himself in the manner referred to in the letter would have been likely to receive a letter in similar terms. It follows that the Claimant's submissions about the application of the reverse burden of proof also fall to be rejected. Secondly, insofar as the Claimant sought to suggest that the Tribunal should have made a finding of automatically unfair dismissal under reference to the statutory dismissal procedures, that too was not any part of the first ground of appeal. We would add, however, that even if any such ground had been properly before us we would have found that it was without merit. The reason for a dismissal has no bearing on the question of whether or not the statutory dismissal procedures were complied with. Thirdly, we have some doubt as to whether the Claimant's case regarding the resurrection of an old grievance was part of either the first ground of appeal or his original claim but in either event, since it did not, on the Tribunal's findings in fact, play any part in the reasoning behind his dismissal, we propose to say no more about it.
33. Turning to the central issue in the appeal, we agree with Ms Omambala that the Claimant's argument proceeded on a false premise. At the heart of the Claimant's approach was his insistence that paragraph 82 of the Tribunal's reasons contained findings that he had suffered less favourable treatment in three separate respects. He seemed to think that because the Tribunal, in that paragraph, wrote of the author of the letter of 4 December having referred to three separate complaints that had been made by him, they had found that he received less favourable treatment in respect of all three. That, however, is simply not right. It is plain from a reading of the paragraph as a whole that the Tribunal's concern related only to one matter namely that the author of the letter referred to one complaint by the Claimant that had not been the subject of a formal grievance (and so had not been investigated and determined on) and had expressed her negative views about it. They considered that she should not have done so. It was thus only in respect of one limited respect that the Claimant was found to have suffered less favourable treatment. Moreover, the Claimant's argument failed to recognise that the Tribunal had concluded that since the allegation underlying that complaint was made falsely and in bad faith, notwithstanding their finding of less favourable treatment, the Claimant's claim of victimisation could not succeed. The statutory provisions to which we have referred above required them to reach that conclusion; they could not have properly done otherwise.
34. As presented to us, the other aspect of the Claimant's appeal was to the effect that the Respondent had really accepted that he was dismissed for having done protected acts. That was, however, plainly not the case. It is quite clear that the Respondent's position was, all along, that his protected acts played no part in the reasons for his dismissal. Nor can it be said that the Tribunal's findings show that the Claimant having carried out protected acts formed any part of those reasons. We cannot interfere with their findings in fact and it is clear that they accepted the evidence of, in particular, Ms Schonberner, that her reasoning was as set out in her letter of 10 December. It is clear from that letter that the problem for the Claimant was not that he had done protected acts but that he had conducted himself at the mid year review meeting in the aggressive and inappropriate manner described and that, in numerous ways which had nothing to do with protected acts, relationships had broken down through his failures ranging from his attitude at meetings to his failure to engage with the Respondent when they were trying to improve matters.

Disposal

35. In all these circumstances we have no hesitation in concluding that the Claimant's arguments were wholly ill founded and will pronounce an order dismissing the appeal.