Appeal No. UKEAT/0563/10/RN
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At
the Tribunal
On
5 April 2011
Before
HIS
HONOUR JUDGE McMULLEN QC
MR B BEYNON
MR P GAMMON MBE
LYCEE
FRANCAIS CHARLES DE GAULLE APPELLANT
MS
M DELAMBRE RESPONDENT
Transcript of Proceedings
JUDGMENT
SUMMARY
AGE DISCRIMINATION
Appeals against liability and remedy for age discrimination
against a 34 year old woman by a French Lycee subject to English employment law
having been dismissed by the EAT and the CA, only the recommendations made by
the ET were live. The ET in its discretion made permissible recommendations to
correct the discriminatory culture and conduct of the Lycee’s leadership.
HIS HONOUR JUDGE McMULLEN QC
1.
This case is about the remedy for findings of unlawful age
discrimination and victimisation for raising such matters. It is the Judgment
of the court, to which all members appointed by statute for their diverse
specialist experience have contributed. We will refer to the parties as the Claimant
and the Respondent.
Introduction
2.
It is an appeal by the Respondent in those proceedings against a
Judgment of an Employment Tribunal chaired by Employment Judge Stewart, sitting
at London (Central), for reasons given on 10 January 2010. The Remedy
Judgment, as we will call it, followed a hearing on liability. The parties
were represented at the liability hearing, which took place on
19 May 2009 and for which reasons were entered in the register on
10 November 2009, by a solicitor on behalf of the Claimant and by
Mr Nebas, the Bursar of the Respondent School. At the remedy hearing the
school was represented by Mrs Sparrow of counsel, as she appears today;
the Claimant now has the advantage to be represented by Mr Luckhurst of counsel.
3.
The Tribunal upheld the Claimant’s claims that she was subjected to
unlawful discrimination on the ground of age contrary to the Employment
Equality Age Regulations 2006 and, further, that she had been victimised,
contrary to regulation 4 of those regulations, for having done a protected
act. The Respondent appealed.
4.
Throughout these proceedings there are two references made by
Mr Luckhurst in his written and oral submissions which cast a profound
chill. First is the Judgment of Smith LJ dismissing the Respondent’s appeals
and, second, is the Judgment of Mummery LJ telling the EAT how narrow is
its lawful ability to intervene in issues of discretion by Employment Tribunals
in Fuller v London Borough of Brent
[2011] EWCA Civ 267, to which we will return.
The issues
5.
The issues in the case have been very narrowly defined for us. Appeals
against all of the Liability Judgment and most of the Remedy Judgment were
dismissed by the EAT and by the Court of Appeal, but one aspect was left open
which was whether there was a reasonable prospect of success in an argument
that the recommendations accompanying the Remedy Judgment were wrongly made.
There is now no challenge to the finding that the remedy for the unlawful
discrimination and victimisation would be £48,709.79, but what is at stake is
the second part of the Remedy Judgment dealing with a recommendation.
6.
Regulation 38 gives a discretion to a Tribunal to make a
declaration, an award and a recommendation. It provides as follows:
“38(1) Where an employment tribunal finds that a complaint
presented to it under regulation 36 is well‑founded, the tribunal
shall make such of the following as it considers just and equitable -
[…]
(c) a recommendation that the
respondent take within a specified period action appearing to the tribunal to
be practicable for the purpose of obviating or reducing the adverse effect on
the complainant of any act of discrimination or harassment to which the
complaint relates.”
7.
The issues before us as advanced by Mrs Sparrow are whether the
Tribunal erred in law in making the three recommendations which it did.
The facts
8.
The facts can be briefly stated for now the facts contained in the Liability
and the Remedy Judgments are beyond dispute. The Respondent is a large French
school located in London and, at the time, had about 4,000 pupils and
450 employees divided into different sections according to the ages of its
pupils, between 5 and 18. The Headmaster since 2007 is Mr Vasseur and
there is a senior management team and a governing body, as it is translated
from the French Commission Paritaire, which is responsible for the decisions
in this case.
9.
Put shortly, the Claimant, who is French and 34, came to England in 1999 and took a position at the school in 2001. She applied in 2008 for a new position.
She was, at the time, a part‑time dinner lady, as she would be known in
an English school, and sought a promotion to a supervisory position in the
senior part of the school. This she was refused on grounds of age and the
Tribunal held that such was unlawful, contrary to the 2006 Regulations.
10.
When she sought to raise complaints and grievances about the matter she
was victimised by Mr Vasseur and other members of the leadership of the
school, including criticisms of her conduct. This led to the Tribunal making
financial awards and giving Judgments in both the Liability and Remedy parts of
its Judgment in strong condemnatory terms. Confining ourselves to the issue on
appeal, which is the recommendations, the way was paved for them to be made by
the findings of the Tribunal, which were as follow:
“14. Turning now to the recommendations which the
Tribunal has made: not only has the Respondent displayed a quite staggering,
and the Tribunal found wilful, ignorance of UK Employment Law, but also until
very late in the day a high handed and arrogant refusal to accept that every
employer in the UK, of no matter what nationality, is subject to the Laws of
England.
15. The Tribunal did not accept that being French was a
mitigating factor, as advanced by the Respondent’s representative, nor could it
see as yet any real evidence of meaningful change in this general attitude in
the Respondent’s organisation, save for the appointment of the Claimant to her
new post, a few days after the Full Merits Hearing in this Tribunal.
16. What is required in the Respondent’s organisation, in the
Tribunal’s view, is a complete change of culture, beginning at the top and
cascading down through the organisation to every level, in relation to its
understanding of its obligations as an employer and in particular in the fields
of discrimination law and the proper conduct of grievance and disciplinary
procedures. The Tribunal was not persuaded that this process has more than
just begun, despite Monsieur Nebas’ protestations during this Remedy
Hearing, and the Tribunal has, therefore, made the recommendations set out in
this Judgment with the intention of assisting the Respondent in making the
necessary transition to compliance with its obligations as an employer under UK
Employment Law and thereby obviating or reducing the adverse effects on the
Claimant of the acts of discrimination which have been the subject of these
proceedings.”
11.
Those reasons are made in the contest of several days’ of evidence in
which the set up at the school, its constitution and its day‑to‑day
organisation were fully explained. The recommendations which formed part of
the Judgment were these:
“2. ….
(a) That both the Tribunal’s Full Merits Hearing and Remedy
Judgments be circulated to each member of the Respondent’s Governing Board and
to each member of the senior management team of the Respondent, to be read and
digested by them, by the end of March 2010.
(b) That the Respondent secure the services of an appropriately
qualified HR professional who will conduct a review of their existing equality,
disciplinary, grievance and recruitment policies and procedures and amend or
redraft the same as necessary, so as to ensure compliance with United Kingdom
Employment Law. This HR adviser will have had the opportunity of studying the
Tribunal’s Full Merits and Remedies Judgments before going about their task,
which should be completed by the end of June 2010.
(c) That the Respondent undertake a programme of formal equality
and diversity training, including an recruitment and selection procedures,
beginning at Board of Governors and highest management levels and cascading
down through the entire organisation; this training programme to begin at the
start of the academic year in September 2010 and to be completed within six
months of that date.”
We will call these the first, second and third recommendations.
12.
The Claimant continues to be employed by the school. A fact we
consider to be important in looking at the criticisms made by the school of the
recommendations.
The Respondent’s case
13.
The Respondent contends first that the first recommendation should not
have been made because there is no Board of Governors and that this illustrates
the poor understanding by the Employment Tribunal of the setup of the school
and its relationship to the French state through an adviser to the cultural attaché
of the French Embassy. In short, the recommendation is an error because there
is no Board of Governors. Further, it is too wide.
14.
The second recommendation is criticised because the recruitment of an HR
professional is to deal with matters outside the remit of the Employment
Tribunal, for example, in relation to disciplinary matters, and that this order
is made too widely. Nor does it bite specifically on the Claimant for, as Mrs Sparrow
rightly points out, the language of regulation 38(1)(c) deals with the
obviation of the adverse effect of the discrimination on the Claimant. In
short, she contends in its generality this recommendation should be struck
down.
15.
As to the third recommendation, the language is too vague using terms
such as ‘cascading’ and it is onerous in that diversity training must be
provided. The same criticism is made of the depiction of the leadership as a
Board of Governors and at the same time, perhaps paradoxically, its language is
not specific enough to define the action to be required.
16.
It is contended that the recommendations insofar as they require
presentation of the material in the Judgments to the leadership of the school
is wrong since some of them no longer exist. By reference to authorities,
Mrs Sparrow contends that the recommendations must be specific to the
Claimant or that she must be sufficiently identified within a general
recommendation. It is wrong for these recommendations to be so wide and to go
beyond the scope of alleviating the adverse effect to the Claimant.
The Claimant’s case
17.
On behalf of the Claimant, Mr Luckhurst contends that these
criticisms of lack of understanding by the Tribunal of the setup of the school
are unfair. The Tribunal set out its clear understanding, having heard
evidence from the leading actors in this drama, as to what relationships existed
and how the school was run.
18.
The Claimant made specific reference in her claim form to a
recommendation as an appropriate remedy. It is an issue defined by the
Tribunal in its CMD and the approach to the case was shaped by the further
particulars sought of the Respondent and its answers, including the translation
of the word ‘Commission Paritaire’ which is the body which made the
decisions in this case, and also the senior management team. As to the three
specific recommendations, it is contended that there could be no doubt as to
who the Board of Governors is. It is the translation of Commission
Paritaire and that is clear from the minutes of the meetings where the
relevant acts of discrimination took place.
19.
The second recommendation is apt since it includes within its remit the
circumstances of the Claimant. Any recommendation about equal opportunities is
bound to be general and, since the Claimant is still at the school, she is
within its scope. If she criticises the process for raising a grievance or for
being promoted to supervisor, it is natural that the process should be a
general application. Mr Luckhurst contends that the fact that some
teachers are appointed on four‑year contracts from France is a red herring since, in this case, there may be entitlement to the protection of
English employment law in any given circumstance; that is not an issue at the
moment.
20.
As to the third recommendation, the training which is sought is simple;
cascading is an ordinary word. Those who are affected by the recommendation
know who they are. This is a cultural problem within a tightly knit community
of those who work for a French school in the heart of London and, thus, it is
important that the culture be changed.
The legal principles
21.
The legal principles in this case are not in dispute. A recommendation under
regulation 38 gives a Tribunal extremely wide discretion (see Chief Constable
of West Yorkshire Police v Vento [2002] IRLR 177 at 49.1 per
Wall J on behalf of the EAT).
22.
The requirement of practicability is met when the Tribunal focuses upon
what is practicable in terms of its effect on the complainant (see Fasuyi
v London Borough of Greenwich UKEAT/1078/99 at paragraph 24).
23.
The practicability of a recommendation has to be also seen from the
perspective of an employer. Only one which is completely impracticable would
constitute an error of law (see Leeds Rhinos Rugby Club v Sterling
UKEAT/0267/01 at 6.1).
24.
A recommendation which is generally ameliorative, that is applying
across the board, may be justified if the effect of it will obviate or reduce
the adverse effect of discrimination on the complainant, who is a person within
the general application (see Fasuyi at paragraph 24).
25.
Tribunals have a wide range of discretion in the recommendations they
make so that, for example, a letter being sent to all parents of a school was
approved, subject to some minor drafting on appeal, in The Governing Body
of St Andrews Catholic Primary School v Blundell, UKEAT/0330/09/, and
good practice will require senior managers within an employer which has been
found guilty of discrimination to face up to findings made by reference to a
Judgment in an Employment Tribunal (see Vento at
paragraph 4.49). A requirement to undertake formal equality and diversity
training may be appropriate (see London Borough of Southwark v Ayton
18 September 2003 unreported EAT at paragraphs 26 to 28).
26.
To those directions in relation to recommendations can be added issues
on appeal and here Mr Luckhurst correctly reminds this division of the EAT
of Mummery’s LJ words in Fuller v London Borough of Brent
at paragraph 30:
“The reading of an ET decision must not, however, be so fussy
that it produced pernickety critiques. Over‑analysis of the reasoning
process; being hypercritical of the way in which the decision is written;
focussing too much on particular passages or turns of phrase to the neglect of
the decision read in the round: those are all appellate weaknesses to avoid.”
27.
The injunction against interference on the grounds of perversity is also
made in Bowater v Northwest London Hospitals NHS Trust
[2011] IRLR 331. In matters of discretion it will be rare for there to be
intervention by the EAT and only if the discretion has been exercised wholly
wrongly, taking account of an irrelevant factor, or failing to take account of
a relevant one (see the explanation of these matters given by the Court of
Appeal in CIBC v Beck [2009] IRLR 740 and the cases
cited by Wall LJ.
Discussion and conclusions
28.
At the outset of this Judgment we noted the reference made by
Mr Luckhurst to what the Court of Appeal had said about these cases.
Permission to appeal was refused against the Judgment of
HHJ Peter Clark under rule 3(10), which itself followed the
opinion given by Underhill P, was that the whole case was totally without
merit and there was substantial evidence for the findings which the Tribunal
had made.
29.
The point about these chill words of Smith LJ which, as she said,
means there is nothing more to be said, is that the findings of fact by the
Employment Tribunal are now cast in stone. Thus, the findings on Liability and
on Remedy leave only the narrow window opened by Judge Peter Clark
which is the subject of this appeal. That is whether the recommendations have
gone too far.
30.
As to that, we respectfully adopt the opinion given by Underhill P
in his rule 3(7) opinion that these recommendations are perfectly
appropriate. The President said:
“The Appellant has taken no account of the points which I made
more fully about the first Notice of Appeal and has simply repeated the same
grounds in slightly different form. Briefly:
[…]
7. As to Head E, I see nothing even arguably “impracticable” or
“excessive” in the terms of the recommendations. The OFSTED report is not
concerned with the Appellant’s employment practises. The comments made by the
Tribunal were not disproportionate to the conduct which it found.”
31.
First, our approach must be guided by Mummery’s LJ words in Fuller.
This is a decision based on the exercise of discretion. Regulation 38 is
shaped by two matters of discretion. The first in the introductory part of regulation 38(1)
is that it shall make a recommendation if it considers it just and equitable.
The second is in the recommendation itself which is that it may require an
employer to take action which appears to the Tribunal to be practicable. Those
matters of evaluation and assessment for an Employment Tribunal and not on
appeal.
32.
In respect to the first recommendation the major criticism is that there
is no Board of Governors. This has no merit whatever. Throughout the hearing
the translation of the French body known as the Commission Paritaire was
the Board of Governors. The minutes of the meeting where the discrimination
occurred were placed before the Employment Tribunal. It is that and the people
attending it which constituted the Governing Board.
33.
Similarly, there is reference to the senior management team and to the
manipulation by Mr Vasseur of the proceedings. This, as a specific
allegation, this goes nowhere. The general allegation that it is difficult to
see who is constituted within the Governing Board and the senior management
team is a contention with no substance. It is plain that a Judgment of an
Employment Tribunal, making findings of unlawful discrimination against an
employing body, should be made known to those who have made the decision. True
it is that when the horse is taken to water it cannot be required to drink, but
we do not read the words “to be read and digested” in the recommendation as
capable of enforcement. The point is the Lycee has been condemned in strong
terms for its acts of discrimination and that should be made known to the
people who lead it.
34.
As to the second recommendation, which is to secure HR professionals, it
is contended that there are within here procedures which are not canvassed
within the Judgment. Focus has been directed upon the disciplinary policies.
Mrs Sparrow contends this is nothing to do with the case. This case was
about age equality. We disagree. The findings by the Tribunal draw attention
to the action of Mr Vasseur in raising, what the Tribunal and we hold to
be at a completely inappropriate stage, matters of misconduct against the
Claimant. That is wrong and an HR professional would be able to give advice to
Mr Vasseur about the way in which disciplinary action for matters of minor
misconduct should be conducted.
35.
Equality is at the heart of this. The Tribunal made ample findings
about the lack of understanding and equality and the failure to handle
grievances and recruitment. It is part of the recruitment policy that the
Claimant should have an opportunity equally to compete for promotion and we see
no difficulty in recommending, as the Tribunal did, what to do.
36.
There are ample findings by the Tribunal of a total failure, indeed
refusal, to follow UK employment law by the staff at this school. It is not
for us to judge but for an Employment Tribunal, but here there was evidence of
the complete failure to understand that the employees of the school, certainly
this employee recruited in England, is entitled to the benefit of our laws.
37.
Part of the criticism on appeal of this recommendation is the fact that
it is not capable of ameliorating the adverse effect on the Claimant. As to
that, we accept Mr Luckhurst’s submission that there is a difference
between those employees who are dismissed and those who are not. Bayoomi v British Railways Board
[1981] IRLR 431 relied on by Mrs Sparrow is not of assistance, for this is
to do with a person who has been dismissed. We see a world of difference
between making a recommendation that will affect a person with continuing
employment from that which would affect only those who are left in place after
she has gone.
38.
In any event, what is important in this case is the fact that the
Claimant was victimised unlawfully by the Respondent. Having done a protected
act, she continues to be within the scope of the anti‑victimisation
provisions and it is important that the adverse effect which the Tribunal has
found to have occurred as a result of her doing a protected act be not
revisited upon her. Of course, when policies are redrafted, they will affect
all within scope and this includes the Claimant. She is entitled to know that
there will, as a result of these recommendations, be put in place policies
which enable her to raise without fear an application for promotion and
grievances which may occur during the course of her career and to be treated
correctly for matters of misconduct put against her.
39.
Turning then to the third recommendation, this is that there should be a
program of formal equality and diversity training. Here the particular expertise
of the lay members of this Appeal Tribunal is of great assistance. Indeed, all
of us who work in large organisations are familiar with equality and diversity
training. It does not take long; this is not an onerous obligation and it
needs to start at the top and go down. There is no difficulty with it starting
with the Board of Governors and highest management and cascading down through
the entire organisation. Everybody working in a substantial organisation needs
to understand the effect of diversity and a broad appreciation of how diversity
is protected in this country and, we may say, in France too, covered, as it is,
by our common obligations under the European Convention of Human Rights and the
Treaty of European Union. We see no error of law.
40.
At certain stages of Mrs Sparrow’s argument there was some force in
her contention that some of these matters may have been too wide and she
rightly shows us that the EAT has been prepared on appeal to redraft
recommendations. We resist that. We see nothing wrong with the Tribunal
making the recommendations it did based upon the evidence which it heard and
any disagreement we may have would involve us tinkering impermissibly in the
proper province of the Employment Tribunal.
41.
This appeal is dismissed.
