Appeal No. UKEAT/0454/11/LA

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

		At the Tribunal
		On 2 February 2012

Before
HIS HONOUR JUDGE PETER CLARK
SIR ALASTAIR GRAHAM KBE
MR P SMITH

PASAB LTD T/A JHOOTS PHARMACY & MRS SANDIP JHOOTY	APPELLANTS

MRS NIAMH WOODS	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellants	MR EDWARD LEGARD
(of Counsel)
Instructed by:
Natwest Mentor Services
2nd Floor Sapphire West
550 Streesbrook Road
Solihull
B91 8UF
	
For the Respondent
	MR THOMAS ROCHFORD
(of Counsel)
Instructed by:
The PDA Union
The Old Fire Station
69 Albion Street
Birmingham
B1 3EA

SUMMARY
VICTIMISATION DISCRIMINATION – Other forms of victimisation
RELIGION OR BELIEF DISCRIMINATION

Victimisation.  RB Regs 2003.  Reason why Claimant was dismissed.  On facts found it was not because Claimant had done a protected act but because Respondents characterised words said by Claimant as a racist comment.  Appeal allowed.  Employment Tribunal decision reversed.

HIS HONOUR JUDGE PETER CLARK
Introduction
1.	The curious feature of this case is that the Claimant, Mrs Woods, successfully obtained a finding by the Birmingham Employment Tribunal of unlawful discrimination by way of victimisation contrary to Regulations 4(1)(d) and 6(2)(d) (“Dismissal”) of the Employment Equality (Religion or Belief) Regulations 2003 (RBR) against the first Respondent, the employer, and the second Respondent, its Head of Human Resources, on the basis of a remark that she consistently denied ever having made.  It is against that finding, contained in a Judgment with Reasons promulgated on 25 May 2011, by a Tribunal chaired by Employment Judge Findlay, that the Respondents bring this appeal.

Background
2.	After taking a first‑class degree in pharmacy the Claimant commenced work as a pre‑registration student pharmacist at the first Respondent, Jhoots Pharmacy, at their Erdington branch.  She is self‑described as white Irish and of the Muslim faith.  The pharmacist at the Erdington branch was a Mr Parmar; also employed there was Charanjit Singh, a trainee dispenser.  The second Respondent, Mrs Jhooty, was the wife of the first Respondent’s Managing Director and the Head of HR, although she evidently has much to learn about that role (see the Reasons, paragraph 35).  Mr Parmar, Mr Singh and Mrs Jhooty are all adherents to the Sikh religion.  One of the Claimant’s complaints during her short period of employment, which ended with her dismissal by Mrs Jhooty on 14 December 2009, was that Mr Parmar and Mr Singh communicated in Punjabi, which was not familiar to her.

3.	Her employment was not a happy experience.  She complained about being required to miss part of her lunch hour so that she could observe prayers, and was asked by Mr Parmar to work on the festival of Eid, 27 November 2009, although in the event she was not required to work that day.  Mr Parmar complained about her timekeeping.

4.	Matters came to a head at a meeting with Mr Parmar on 7 December.  Mr Parmar asserted that during a conversation about timekeeping the Claimant said that she felt that Mr Parmar and the company were two‑faced, that it was “a crap company and a crap pharmacy”, and that Mr Parmar and the company were effectively “a little Sikh club that only looked after Sikhs”.  Mr Parmar was upset by these remarks, the last of which he regarded as racist, and contacted Mrs Jhooty by telephone to report his account of the Claimant’s remarks.  Mrs Jhooty telephoned the Claimant, then on her way home, and suspended her.  A meeting took place on 9 December attended by Mrs Jhooty and her assistant, and the Claimant.  On that occasion the Claimant denied making the “little Sikh club” remark.

5.	A disciplinary hearing conducted by Mrs Jhooty took place on 14 December.  It was not billed as such, and the Claimant was unrepresented, although she was a member of a professional association, the PDA.  At that meeting Mrs Jhooty dismissed the Claimant, ostensibly on the grounds of poor timekeeping and failure to follow the company’s absence reporting procedure.  In fact, the Tribunal found at paragraph 40, Mrs Jhooty was so incensed by the Claimant’s reported comment about Jhoots being “a little Sikh club” that, having heard it and having decided immediately that the Claimant had said this, she then shut her mind to all other issues raised by the Claimant and determined that the Claimant should leave the Respondent’s employment.  So it was that remark that prompted Mrs Jhooty to dismiss the Claimant.  The “little Sikh club” remark and the Claimant’s denial are mentioned in Mrs Jhooty’s dismissal letter dated 14 December, where she said this:

“During that meeting [of 9 December] it is alleged you made a racist comment describing Jhoots as ‘a little Sikh club who only look after their own people’.  I met with you to investigate the allegation (you denied making the comments) and you made a number of counter allegations regarding your treatment, none of which you had raised prior to the investigation meeting about your timekeeping and attendance.”

6.	Mrs Jhooty went on to say that she could find no evidence of any religious or racial discrimination against the Claimant.

7.	Following her dismissal the Claimant raised a grievance by letter dated 1 January 2010.  In that letter the Claimant said this:

“The purpose of the investigation meeting on 9th December as I was told was for you to address whether or not I made a comment describing Jhoots as ‘a little Sikh club who only look after their own people’.  You made it clear to me that this was a racist comment and that the allegation being made was that I was racist.
As you know I responded to this allegation denying that I made this comment.”

8.	She maintained that denial in her witness statement in these proceedings (see paragraphs 14‑15) and, we are told, in oral evidence before the Tribunal.  She was not believed on this point; at paragraph 24 the Tribunal find that she did make the remarks attributed to her by Mr Parmar, including the “little Sikh club” remark.

9.	The Claimant commenced these proceedings by a form ET1 lodged on 11 March 2010.  She was then represented by the PDA.  She complained of unlawful discrimination, victimisation and harassment on grounds of her race and/or religion and that of her husband, a Muslim of Pakistani origin.  It is right to say that neither in her form ET1, nor in subsequent further particulars, nor at a case management discussion held before Employment Judge Warren on 14 June 2010, nor in subsequent correspondence from the PDA did she raise a victimisation complaint based on the “little Sikh club” comment, which she had denied making.  At a late stage it was suggested that Mr Parmar’s false allegation that she had made that comment gave rise to claims of discrimination, harassment and/or victimisation.

10.	However, on the first day of the hearing before Judge Findlay’s Tribunal, held between 14 and 16 March 2011 we see from the section of the Tribunal’s Reasons headed “Issues” (paragraphs 1‑7) that at paragraph 2 the Tribunal record:

“Mr Rochford also clarified that, in relation to the victimisation allegation, the protected act to be relied upon was both respondents’ suspicion or belief that the claimant had referred to the first respondent as ‘a little Sikh club which looked after its own’.  He submitted that if, on the balance of probabilities, the tribunal were to find that this comment was made, or it was established that the respondents at least suspected that the claimant had made that comment, section 2(1)(d) of the Race Relations Act 1976 and/or regulation 4(1)(d) of the Employment Equality (Religion or Belief) Regulations 2003 […] would apply.”

11.	So, with, we think, considerable ingenuity, Mr Rochford flagged up an argument that even if, contrary to the Claimant’s evidence, the Tribunal accepted that she made the “little Sikh club” remark, she could use that finding to ground a victimisation complaint.

The Tribunal Decision
12.	In the event all other claims of discrimination or victimisation were dismissed.  Only the alternative victimisation claim, based on the adverse finding of fact at paragraph 24, succeeded.  There is no appeal against the subsidiary finding under section 10 of the Employment Relations Act 1999 in connection with her lack of representation at the disciplinary hearing on 14 December 2009.

13.	The Tribunal’s reasoning in relation to the victimisation finding is central to this appeal.  At paragraph 24, having made the factual finding, contrary to the Claimant’s evidence, that she made the “little Sikh club” remark, they observe:

“Mr Parmar describes this last comment as ‘racist’.  Whilst made in trenchant terms, we find that the claimant made these comments due to a build up of frustrations over the previous 4 months, and that her last comment reflected the Claimant’s actual views and was, in substance, a reflection of a substantial part of what she had been complaining about to the Royal Society [of Pharmacists].  The last comment was clearly related also to the fact that she had just been told to restrict her lunch break by half an hour rather than a full hour when she only prayed, even on Mr Parmar’s account, for less than 15 minutes daily.  She clearly felt that she was being treated less favourably on religious grounds, hence her reference to Jhoots being ‘a little Sikh club’.”

14.	And at paragraph 38, having referred to the dismissal letter dated 14 December, the Tribunal comment:

“In her evidence to us, Mrs Jhooty frankly accepted that her decision to dismiss the claimant was influenced by the fact that she believed the claimant had made a racist comment regarding Jhoots being ‘a little Sikh club’ and she told us that she would have dismissed the claimant for that alone.”

15.	The Tribunal added, at paragraph 40, the finding to which we have earlier referred.  

16.	Under the heading “The Law” the Tribunal appear to run together statements of law, counsel’s submissions and their conclusions, applying the law to the facts as found.  We discern the Tribunal’s reasoning to be as follows:

(1)	The reason for the Claimant’s dismissal was that Mrs Jhooty was incensed by the Claimant’s “little Sikh club” comment (paragraph 40), which they found, contrary to her evidence, was made by the Claimant.

(2)	The Tribunal accepted the Claimant’s case that if she made the remark, it was implicit in that comment that the Claimant was alleging that people who were not Sikhs were treated less favourably than Sikhs.  That was an allegation of direct discrimination under section 1(1)(a) of the Race Relations Act 1976 (paragraph 58).

(3)	Mrs Jhooty at least suspected that the Claimant had alleged that the first Respondent treated her, as a non‑Sikh, less favourably than Sikhs (paragraph 60).

(4)	The “little Sikh club” remark was not a generalisation about all Sikhs, but referred to her own experience with the first Respondent; it was not a racist remark (paragraph 61).

(5)	The “little Sikh club” comment was neither false nor made in bad faith (RBR Regulation 4(2)).  She genuinely believed that she was being treated less favourably than Mr Singh because he was a Sikh, and was being singled out by having her lunch break restricted (paragraphs 52 and 63).

(6)	The Claimant established that she was dismissed because she made or was suspected to have made a complaint of direct religious discrimination under Regulation 3 RBR, contrary to Regulation 4(1) (paragraph 62); it was an act of unlawful victimisation (paragraph 64).

The appeal
17.	Mr Legard puts his submissions in support of the grounds of appeal under five heads, which may be summarised in headline terms in this way: (1) the Chapman v Simon [1994] IRLR 124 CA jurisdiction point; (2) whether there was here a protected act; (3) the “reason why” question; (4) perversity; and (5) the Martin v Devonshires Solicitors [2011] EqLR 108, 9 December 2010 point.

18.	Having considered those submissions and those of Mr Rochford in response, we prefer to focus on the “reason why” question.  That is shorthand for the seminal statement of the law of victimisation given by Nicholls LJ in Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830, paragraph 29.  Why did the alleged discriminator act as she did?  What, consciously or unconsciously, was Mrs Jhooty’s reason for dismissing the Claimant, on the facts of this case?  Her evidence was clear; she believed that the Claimant had referred to the Respondent company as “a little Sikh club”, and that was a racist comment.  She told the Tribunal that she would have dismissed the Claimant for that alone (paragraph 38).  We have concluded that the Tribunal accepted that evidence in contradistinction to the next sentence of their Reasons at paragraph 39:

“She also told us that in the absence of the comment regarding the ‘Sikh club’, she would also have disciplined and dismissed the claimant for poor timekeeping and failure to follow the absence repording [sic] procedure.  We reject that evidence.”
  
Discussion and conclusion
19.	Where we accept, on Mr Legard’s submissions, that the Tribunal went wrong in law was to overlook that finding and then to infer from the “little Sikh club” comment a complaint by the Claimant of religious discrimination and then impute that inference to Mrs Jhooty (paragraph 60).  Whilst the reason why a person acted as she did is a question of fact, it is not open to a Tribunal to accept the subjective reason put forward by the alleged discriminator as a matter of fact and then to impute some different reason to her based on the Tribunal’s objective assessment of a remark and its meaning.  Thus even if the point on which the Claimant won, contrary to her evidence, was sufficiently raised at the outset of the hearing such that the Tribunal had jurisdiction to entertain it (see Chapman, considered by Charles J in Smith v Zeneca (Agrochemicals) Ltd [2000] ICR 800, paragraph 52(d)), and the remark was capable of amounting to a protected act as being a complaint of direct religious discrimination contrary to RBR Regulation 3.1, as the Tribunal appeared to think, if the remark was viewed not as a protected act but an offensive racist comment by Mrs Jhooty, then the reason for dismissal was not that the Claimant had done a protected act, but some other feature genuinely separable from the implicit complaint of discrimination.  That was the correct analysis in Khan, so the House of Lords held, and accords in our judgement with the approach of Underhill P (as he then was) in Martin (paragraph 25).  On this basis we agree with Mr Legard that the Tribunal fell into error.  The appeal is allowed.

Disposal
20.	Mr Legard submits that on the basis of our principal conclusion, all necessary findings of fact having been made by the Employment Tribunal, the proper course is for us to reverse the decision and dismiss the complaint of victimisation.  Mr Rochford submits that in the circumstances that have arisen the correct course is for us to remit the matter to the same Employment Tribunal for reconsideration in the light of our guidance on the law.

21.	We prefer the submission of Mr Legard.  We return to the finding at the end of paragraph 38 of the Tribunal’s Reasons, that Mrs Jhooty said in her evidence:

“[…] that her decision to dismiss the claimant was influenced by the fact that she believed the claimant had made a racist comment regarding Jhoots being ‘a little Sikh club’.”

22.	As we have said, we consider that the Tribunal accepted that evidence in contrast to their rejecting the reasons for dismissal given by Mrs Jhooty and referred to in the first sentence of paragraph 39.  In these circumstances we shall allow this appeal, dismiss the complaint, and set aside the remedy Judgment, which, we are told, was promulgated following a subsequent remedy hearing on 4 July 2011, compensation being assessed in the sum of £34,748.