Appeal No. UKEAT/0012/11/CEA

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX

                                                                                                      At the Tribunal
                                                                                                     On 25 August & 23 September 2011
                                                                          	   Judgment handed down on 13 June 2012

Before
HIS HONOUR JUDGE PUGSLEY
MS G MILLS CBE
MR J MALLENDER

MS J L CROAD	APPELLANT

UNIVERSITY AND COLLEGE UNION	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR DAVID CRAIG
(of Counsel)
Bar Pro Bono Unit	
For the Respondent	MR ANTONY WHITE
(One of Her Majesty’s Counsel)
&
MR BRUCE GARDINER
(of Counsel)
Instructed by:
Messrs Bond Pearce LLP
Ballard House
West Hoe Road
Plymouth
PL1 3AE	

SUMMARY
DISABILITY DISCRIMINATION ACT – Discrimination by other bodies

The Claimant was a university lecturer who suffered from both dyslexia and depression and stress.  She sued the union for disability discrimination in that they withdrew representational and legal support.  The union argued that the reverse burden of proof provisions did not apply as a matter of statutory construction.  Further it was agreed that in any event the Claimant had not suffered a detriment since it was not professionally proper for them to represent a client who intimated a claim and eventually made a claim against them.  The EAT dismissed the Claimant’s appeal.

HIS HONOUR JUDGE PUGSLEY 

1.	By a decision promulgated on 8 April 2010, the Employment Tribunal sitting at Cardiff dismissed the claims for unlawful discrimination on the grounds of disability based on the Respondent’s failure to make reasonable adjustments; the claim for unlawful discrimination on the grounds of disability based on victimisation and the claim for unlawful discrimination on the grounds of gender.  

2.	Prior to the main hearing, at a Pre-Hearing Review, Employment Judge Harris had found the Claimant was disabled within the meaning of the Disability Discrimination Act.  The Claimant suffered from two conditions, namely dyslexia and anxiety and depression.  Each of these two conditions were held to be mental impairments which had a substantial impact on the Claimant’s day to day activities.  The main effects on the Claimant arising out of dyslexia were found to be that reading and writing accurately is more difficult, memory and concentration are impeded and organisational skills are limited.  In respect of anxiety and depression the impact was held to be that she had difficulty with concentration, that her sleep pattern was disturbed and she had variable moods.

3.	Employment Judge Collier at a Pre-Hearing Review ruled that the complaints under both the Sex Discrimination Act and Disability Discrimination Act were presented in time.  At paragraph 3.2 the Employment Tribunal recite that there had been an attempt to re-litigate the issue of time limits.  No request had been made to review the decision nor had there been any form of appeal.  The Employment Tribunal were quite correct to note they were bound by that earlier decision in respect of time limits.  

The factual background
4.	The Employment Tribunal set out in clear and comprehensive terms their findings of fact in paragraph 4.  There is always a danger that any summary of detailed findings does not do justice to the way the matter was originally dealt with by the Tribunal.  Subject to that caveat the findings of fact can be summarised in the following way: the Claimant was and still is a lecturer at the University of Wales and is a member of the Respondent trade union.  The Respondent trade union was formed from a merger of two unions and in the time with which the Tribunal was concerned was in a certain flux of time in terms of officers and administration.

5.	In January 2006 the Claimant became unable to work because of the effects of stress upon her.  Although this is a very carefully drafted decision it would seem that the chronology in paragraph 4.1 is inaccurate in that where it talks about 2010 on two occasions, that clearly should read 2006.  

6.	In March 2006 the Claimant sought advice from the Respondent union about her difficulties at work which raised the potential of a claim against her employers for disability discrimination.  The Claimant was asked to fill in the Legal Services application pursuant to their procedures and the Claimant wrote back expressing her concern the Respondent did not understand her difficulties arising from her dyslexia and her high levels of stress.  The union in the form of a regional officer, Mr Philip Markham, responded noting the Claimant’s concerns and in due course made an application in a Word document format indicating that she would like to fill in the questionnaire in an electronic form.

7.	The Claimant was asked to attend a disciplinary hearing to take place on 6 June 2006 and required to confirm her attendance by 1 June 2006.  The Claimant spoke to a Margaret Phelan and asked her to write to her employer and explain that she was too ill to attend.  Margaret Phelan told the Claimant she should make contact herself explaining that an explanation would be more powerful coming from her.  The Claimant accused Margaret Phelan of being aggressive towards her.  The Tribunal took the view, Margaret Phelan admitting to being firm in her advice, that whether it was aggression or not was a matter of perception.  However, the Tribunal made the finding of fact that in their view there was a general approach within the union of not carrying out such tasks as writing letters in those circumstances and that Margaret Phelan was motivated by her professional view that the employer would respond more positively to a first hand explanation or an explanation from her General Practitioner as to the Claimant’s inability to attend a disciplinary hearing.

8.	The Claimant wrote to the trade union on 31 May complaining that Margaret Phelan was not providing the appropriate level of support in view of the fact that the Claimant suffered both from dyslexia and the effects of a stress related illness.  The core of the complaint was that the Claimant had requested the union to contact her employer in respect of the disciplinary hearing that had been arranged and that Margaret Phelan had refused to do that.  That letter was treated as a formal complaint.  The meeting as we have already pointed out, was due to take place on 6 June 2006.  The Claimant’s husband acting on her behalf, sent an email to Mr Markham, the regional officer, on 5 June 2006.  He requested that Mr Markham attend the disciplinary hearing in the Claimant’s absence.  Mr Markham was told not to contribute to the meeting in her absence but to bring certain letters from the Claimant to the attention of the employer and that the attendance would also be justified so that the Claimant should have notes about the meeting.  This email was opened by Mr Markham at about Noon on 6 June 2006.  He refused to attend for two reasons: firstly, it was not usual practice to attend such meetings and secondly, it was not possible for him to attend given the short notice.  

9.	After further correspondence the Claimant made a further request in July 2006 that Mr Markham attend meetings with her employer.  Mr Markham explained that in the absence of a member he would be unable to participate.  There was email correspondence between the Claimant’s husband and Mr Markham and in that correspondence a number of requests were made to Mr Markham relating to the preparation for the meeting with the Claimant’s employer.  Mr Markham made it clear that he was not prepared to attend a meeting at which the Claimant was not present because in the absence of a member, a trade union official would be unable to participate.  A number of requests were made as to how Mr Markham should assist and Mr Markham made it clear in correspondence that there was a limit to the Respondent’s ability to support a member.  Mr Markham pointed out that if the Claimant refused to accept advice that might lead to a withdrawal of their ability to represent her.  Mr Markham made it clear in his correspondence that the Claimant was asking for the Respondent to organise its approach to suit her wishes and particularly was asking the trade union to carry out work that was more properly dealt with by the Claimant herself.  

10.	On 14 July 2006 the trade union concluded their investigation into the Claimant’s complaint about the activities of both Mr Markham and Ms Phelan.  The report dismissed both complaints holding that both Mr Markham and Ms Phelan had acted in a professional way.  Unfortunately, the Claimant, due to a mix up, no doubt due to the merger, was not informed of this until much later, in October 2006.  

11.	On 18 July the Claimant completed her application for legal support and the union informed the Claimant that her legal application would be handled by solicitors, that the Claimant would be required to sign an agreement to obtain their services and that until such time as the Claimant’s case was assessed as suitable for legal support, she was responsible for any claim and the Respondent would take no responsibility.  Thompsons were appointed by the Respondent to assess the Claimant’s claim and at this stage, the arrangement was that the Respondent not the Claimant was Thompsons’ client.  When the client contacted the Respondent, she was directed to speak to Thompsons.

12.	The Tribunal’s decision from paragraph 4.10 chronicles the difficulties that there were between the Claimant, the Respondent and on occasion, Thompsons the solicitors acting for her.  Their findings show that the Claimant was adopting a somewhat intemperate attitude after an exchange during which Mr Markham wrote to the Claimant indicating that if she continued to ignore his advice he would find it impossible to represent her.  The Claimant said this was a threat to withdraw representation and described it as ‘wicked’.  On a further occasion, which is set out at paragraph 4.23.1 in discussions with a trade union official, a Mr Johnson, who operated from the Birmingham office, the Tribunal was satisfied she had referred to previous union representatives as ‘scum’.

13.	In January 2007 a national officer, a Mr Cottrell, completed a report on further complaints made by the Claimant and concluded that Mr Markham had handled matters in an exemplary fashion.  Mr Cottrell made a number of recommendations, one of which was that the Claimant should no longer be supported by the Welsh office of the union but that matters be handed over to Mr Barry Johnson who worked from the Respondent’s Birmingham office, but it was indicated to the Claimant that any support would be dependent on accepting the Respondent’s advice.  

14.	At paragraph 4.21.2 the Tribunal noted that in their view the Claimant had failed to accept advice from Mr Markham on a number of occasions. The tribunal took the view that a representative cannot be expected to continue to act for a member when advice is persistently ignored.

15.	The Tribunal pointed out that the reality is that the Respondent needed ground rules if it were to continue to represent the Claimant.

16.	By the start of the year 2007 matters were coming to a head.  The Claimant had accused the union of treating her unfairly and of failing to take her disabilities into account.  She had forwarded to the union advice she had received from the Disability Rights Commission about her treatment by the union.  On 17 December 2006 Michael Scott, the Respondent’s Director of Legal Services, was pointing out that under the Legal Aid Scheme Regulations a member ceases to become entitled to receive legal services if the member’s interests are in conflict with those of the union or the union reasonably believes there is such a conflict.  Mr Scott therefore wanted to know whether the Claimant was satisfied with the investigation which had been carried out by the union and the subsequent correspondence with Mr Cottrell.  There was then correspondence between Mr Scott and the Claimant in which the Claimant said that withholding legal support consisted of harassment and victimisation because she made a complaint.  On 3 April the Claimant issued proceedings against the Respondent and thereafter her legal representation was withdrawn.  

17.	The Tribunal at paragraph 6.1 onwards analyses the complaints that the Claimant had made in that the union officials had not written letters on her behalf or agreed to attend meetings at which she would not be present.  The Tribunal meticulously worked its way through the various complaints, the history of which is set out in paragraph 4.  It came to the view that in no case could it be said that the Respondent had failed to make reasonable adjustments either in respect of the way they communicated to her or in their failure to go beyond the general practice as to what they would assist members in doing.  The Tribunal were meticulous in reaching factual conclusions and they came to the view that in each of the matters that had been put forward by the Claimant there had been no failure to make reasonable adjustments.  They took into account their own view of the Claimant in reaching the decision that she could perfectly adequately have phoned or written to her employer to say that she was too ill to attend a meeting.  Further, she could have compiled a letter of complaint.  The Tribunal declined to say there had been discriminatory action in any of the complaints made by the Claimant.  Moreover, the Tribunal did not consider that it was a discriminatory act for the Respondent to impose a condition that she would only receive support if she agreed to accept the Respondent’s advice.  The Tribunal went on to make the finding in paragraphs 6.5.2.1 that in any event her complaint that it was discriminatory to be required to agree to accept the trade union’s advice had no connection with her disability, in other words, her failure to accept advice had not been anything to do with dyslexia or stress.  In any event, the hypothetical comparator without the Claimant’s particular disability, who was engaged in a long running dispute with her employer and failed to accept advice, would have been treated in the same manner as the Claimant and the Tribunal found that the issue there was such that there was no discrimination under disability proved.

18.	The Tribunal found that the Claimant was required to establish that she carried out a protected act and she suffered a detriment by reason of carrying out that act.  They went on to say that the burden of proof remains on the Claimant throughout.

19.	The Tribunal decided that the reason support was withdrawn from the Claimant and that the recommendation was made that she should agree to abide by advice is that it was considered by the Respondent too difficult to represent the Claimant without such an agreement.  The Tribunal at paragraph 7.1.3 state that in their judgment the withdrawal of support was not by reason that the Claimant had either brought proceedings or indicated that the Respondent had failed to make reasonable adjustments.  They go on to say at paragraph 7.2: 

“Although the connection between bringing of proceedings and the withdrawal of legal assistance is established we are required to address why the Respondent withdrew that assistance?  In our judgment it was because of a perceived conflict of interest.  This was a reasonable perception in all the circumstances.  In particular the antipathy between the Claimant and the Respondent as an organisation, exemplified by her intemperate description of the Respondent’s officers to Barry Johnson (see paragraph 4.23.1 above) with a background of repeated complaints, along with the refusal to accept advice, gave rise to a relationship which was tenuous at best.  This claim related to the way in which assistance both legal and lay had been provided by the union and was therefore intimately connected to the claim that the claimant was bringing against her employer and for which legal assistance was sought from the respondent.  In the Tribunal’s judgment it would be difficult for the respondent to avoid the conclusion that there was a conflict between its interests and that of the claimant.  
7.2.1 The Derbyshire v St Helens Metropolitan Borough Council [2007] 1 ICR and Fosh v Cardiff University (unreported) decisions both support the proposition that where the motivation of the respondent’s conduct does not arise from the bringing of proceedings per se but because an ancillary consequence of the bringing of proceedings the conduct cannot be said to be ‘by reason that’ the claimant has brought proceedings.”

20.	The Tribunal conclude in paragraph 7.2.1 by saying:

“In our judgment the respondent did not act as it did because the claimant gave notice of or brought proceedings but because the bringing of proceedings created a conflict of interest.”

21.	There are in effect three grounds of appeal, namely that (1) the Tribunal did not consider the reverse burden of proof provisions applied; (2) the Tribunal erred in considering the withdrawal of legal assistance was not an act of victimisation; and (3) that the reasoning of the Tribunal as to the withdrawal of internal support was insufficient. The Respondent is not pursuing its second ground and their first ground of appeal is whether the Tribunal was correct in saying that the Claimant had suffered a detriment.

Our approach
22.	In this case we have not had, as is sometimes the case, extensive argument as to our powers as an appellate tribunal.  We make no criticism of that because the advocates, by whom we have been well served, no doubt felt that it was a matter well within our knowledge that we only have a power to intervene if there is an issue of law.  Nevertheless we consider it appropriate just to set out briefly what we consider our position to be.  The earlier employment cases used to refer to industrial tribunals as industrial juries.  Unlike juries in a criminal trial industrial tribunals were required to give reasons.  However, we consider that terminology was helpful because it brought home to people the primacy of the decision making role of the industrial tribunal.  A judge in a criminal trial is not allowed to trespass on the role of a jury and thus no judge should allow a submission that there is no case to answer which involves the judge making findings of fact about credibility and the weight that should be attached to certain evidence which are clearly matters within the province of a jury not in the determination of a judge.  Similarly, in areas of civil law there is a growing body of jurisprudence: see the House of Lords decision in Piglowska v Piglowski heard on 24 June 1999 in which Lord Hoffmann deprecated the attempts by appellate courts on the basis of detailed textual analysis of being seduced into imposing their view of the facts.  Lord Hoffmann stressed the need for appellate caution in reversing a trial judge’s evaluation is based on much more solid grounds than professional courtesy.  It is because specific findings of fact even by the most meticulous judge are inherently an incomplete statement of the impression which was made upon him by the primary evidence.  This Tribunal had the opportunity of actually hearing the evidence of the Claimant and it is obvious that their findings were made in the light of a careful evaluation of all the witnesses.

Ground 1: the burden of proof
23.	Section 17A(1)(c) was a statutory amendment made during the year 2003 which introduced as with other discrimination statutes a provision reversing the burden of proof.  In relation to victimisation claims brought under the Race Relations Act it has already been held that the reverse burden of proof does not apply in the case of victimisation: see Oyarce v Cheshire County Council [2008] ICR 1179.  However, in relation to slightly differently drafted provisions in the Sex Discrimination Act the appeal tribunal has determined that the reverse burden of proof does apply: see Pothecary v Bullimore [2010] ICR 1008.  The Claimant has argued that the interpretation which was put to the Tribunal in the Respondent’s closing submissions was based on a fallacy.  The argument put on behalf of the Respondent was that the reverse burden of proof provisions in the Act can apply only to complaints which are unlawful under Part 2, and because the victimisation provisions appear in a different part of the Act i.e. Part 7 rather than Part 2, the reverse burden of proof provisions do not apply to victimisation claims and has relied on the dicta of Mrs Justice Cox in the EAT case of Dresdner Kleinwort Wasserstein Ltd v Adebayo [2005] IRLR 514 that the reverse burden of proof provisions have heralded a new approach to discrimination cases and that the Tribunal erred in not applying the reverse standard of proof provisions.  On the Respondent’s side it is pointed out that the statutory provisions making victimisation unlawful is to be found in  Part 7 of the Act not Part 2, that section cross refers to Part 2 to enable a complaint to be made to an Employment Tribunal by a member of a trade organisation about alleged victimisation by that trade organisation but in commencing the section for the purpose of Part 2 the draftsman should not be taken to have intended that in some way Part 2 should be taken to have made victimisation unlawful when there is no reference to victimisation in that Part.  It is contended that this is analogous to the Race Relations Act as in Oyarce, namely the burden remains on the appellant throughout.

The withdrawal of legal representation
24.	Although we are inclined to decide on the basis that the reverse burden of proof provisions do not apply to victimisation for the reasons put forward by the Respondent, we have to say that we regard this as a somewhat academic matter for the reasons we will in due course set out.  Mr Craig has addressed us with great skill and has said everything possible that can be said on the Claimant’s behalf.  We have to say that we cannot accept a fundamental proposition that is the foundation of all the points that he has made.  It is contained in paragraph 13 of his skeleton argument where he says this: 

“No doubt there was a conflict between the appellant and the union – she had made a complaint of disability discrimination against him.  However, that self evidently does not mean there was a conflict of interest in any relevant sense.  If the appellant wanted legal assistance for a claim against the union itself then plainly there would have been a relevant conflict.  But here the appellant was pursuing a claim against her employer and wanted legal assistance in the prosecution of that claim.  There simply was no conflict of interest in the union providing the appellant with legal assistance in respect of that claim; indeed there is no reason to believe that the interests of the union and that of the appellant were entirely aligned in that regard they both wanted the appellant to achieve a satisfactory resolution of her claim against her employer.”

25.	In our view that is a wholly flawed approach.  A trade union that takes on the responsibility of providing legal assistance to a member would obviously wish to do everything possible to serve that member’s interests.  But a solicitor is bound by the professional code of conduct in carrying out that service.  We have been referred by Mr White QC to the Solicitor’s Code of Practice and we accept that to act for a client in situations where there is a potential conflict of interest is prohibited.  We accept that must be one of the most fundamental rules that apply in the conduct of a legal practice.  In Marks & Spencer v Freshfields [2004] 1 WLR 2331, Marks & Spencer sought an injunction to prevent Freshfields acting for a firm who were seeking to make a takeover bid on the basis that Freshfields had in the past acted for them.  In this case, the conflict of interest would be far greater.  In the course of acting for the Claimant in any case she had against the University, the union may well have found out certain matters in the conduct of the case which might have a material interest in any claim they had to defend against the Claimant.  There would be the clearest conflict of interest to represent a party in litigation knowing that it was likely you would be the defendant in a claim by the Clamant in respect of the very matters in which you had represented her.  This is not a matter of professional embarrassment or distaste, it is a central role in the conduct of legal practice.  No lawyer should be placed in a position where their ability to act for a client is compromised by having to ignore a conflict of interest in clear breach of their professional code.

26.	In saying  that our view as to the finding as to the burden of proof issue was academic we  say that even if the Tribunal had applied the reverse burden of proof it would have made no difference to the result because the Respondent would clearly have discharged that burden.  There is a plethora of authority that a tribunal should concentrate on the reason why the Claimant was treated as she was.  Shamoon v Chief Constable of the RUC [2003] ICR 337 is but one such case.   Of course, there may be situations in which the withdrawal of service to a professional client or a member might be an act of discrimination.  If for example, a person suffered from psychotic conditions that led them to make paranoid and irrational suggestions about the trade union representative or solicitor acting for them and at times gave way to abuse of a wholly unnecessary and unpleasant nature, if the solicitor or trade union representative was aware of those conditions it might be that they might well feel they should continue to act because they appreciated that the difficulties they had were part of the condition which caused their client or member to be disabled.  There is however nothing in the papers to suggest that the Claimant’s position is to be equated with that hypothetical example that I have just given.

27.	The Claimant may have had the misfortune to suffer from the conditions which deemed her to be disabled but one must bear in mind that she held a responsible job and one which required her to obtain high academic qualifications.  The Tribunal had the benefit of seeing her and in view of the findings of fact they made about her it is difficult to see how their findings of fact as to the reason of withdrawal for support and then of legal services can be said in any way to be one that is perverse and which is not open to them.  In part, the Respondent’s cross-appeal, namely the Tribunal was wrong to find the appellant had suffered a detriment by not being provided with legal services where there was a conflict of interest is summed up by paragraph 7.1.1 where the ET states that:

“It would be difficult to see the withdrawal of legal assistance and support as anything other than a detriment to the claimant.”

28.	In brief, the Respondent’s contention is that the union could not be criticised for not acting because there was a conflict of interest and therefore there could not be circumstances in which it could be a detriment to the Claimant that they could not act for her.  We have to say that we find this a compelling argument.  In British Medical Association v Chaudhary [2007] IRLR 800 the Court of Appeal reaffirmed the essential statement of the law that a person does not discriminate if he takes the impugned decision in order to protect himself in litigation.  In that case it was held that the BMA had not victimised the claimant in refusing to assist in bringing discrimination proceedings against various medical bodies in circumstances where the claimant had alleged discrimination against the union and the union’s decision to refuse support was in order to protect its position in that litigation.  In that case the Court of Appeal overturned the ET’s conclusion that there was victimisation.  In this case it is extremely difficult to see how it could be a detriment to the Claimant in that the union were precluded by the professional rules that bind the legal profession from acting for her in a conflict and furthermore, there is a well established principle that if the reason for taking the impugned position is to protect your own legal interest in any litigation that might follow that does not amount to discrimination.

29.	We do not see that the Claimant has established there is any ground for us to intervene.  We take if we may the argument that the Tribunal failed to give sufficient reasons for the withdrawal of internal support.  

30.	It is said at paragraph 7.3 of its reasons that the Tribunal did not give adequate reasons for its decision.

31.	We do not accept that this is a fair criticism.  The Tribunal made a clear finding that the withdrawal of the union’s support, that pre-dated the issue of proceedings, was not by reason the Claimant had brought proceedings or indicated that the Respondent had failed to make reasonable adjustments.  Their finding was that it was too difficult to represent the Claimant without such an agreement.  That obviously has to be read in the light of the earlier findings it made that the Respondent cannot be expected to continue to act in circumstances where its advice is persistently ignored.  We consider anybody reading this decision in its entirety would fully understand what was meant by that and we therefore do not consider it affords any grounds of appeal.  As we have indicated, we dismiss the appeal and allow the first ground of the cross-appeal.