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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> London Borough of Hillingdon v Meso (Race Discrimination : no sub-topic) [2014] UKEAT 0450_13_1203 (12 March 2014) URL: https://www.bailii.org/uk/cases/UKEAT/2014/0450_13_1203.html Cite as: [2014] UKEAT 0450_13_1203, [2014] UKEAT 450_13_1203 |
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At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
(SITTING ALONE)
UKEAT/0450/13/JOJ & UKEAT/0451/13/JOJ
LONDON BOROUGH OF HILLINGDON |
APPELLANT |
RESPONDENT | |
MRS M MESO |
APPELLANT |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For London Borough of Hillingdon | MR NIGEL PORTER (of Counsel) Instructed by: London Borough of Hillingdon (Legal Services) Civic Centre (3E/04) High Street Uxbridge UB8 1UW |
For Mrs M Meso | MR JACK MITCHELL (of Counsel) Instructed by: ARKrights Solicitors 15-17 Exchange Road Watford WD18 0JD |
SUMMARY
RACE DISCRIMINATION
There were three linked appeals. The Claimant alleged she had been dismissed because of her race. The Employment Tribunal dismissed this claim, and was held entitled to do so.
The Respondent appealed findings that a named employee had been party to discrimination against C. She had not been accused of this before the hearing, and had not had the opportunity to appear before the Tribunal to rebut the finding. Held: the finding was not clearly supported by evidence or allegation and should not have been made.
Finally, the Respondent appealed against a decision by the ET at a remedy hearing to reconsider whether it should accept jurisdiction – it had held at the liability hearing that there was a continuing act, but it changed its mind at the remedy hearing. It decided to hear the Claimant as to whether it should extend time on the basis that it was just and equitable to do so. The Respondent argued it could not do so, for to do so would be to admit evidence which did not satisfy the requirement of "fresh evidence" under rule 34(3)(d) so should not be admitted under rule 34(3)(c) ("interest of justice") if the ET was exercising a power of review – but it did not identify what, if any, power it WAS exercising. Held: that whether it was finishing an unfinished issue arising in the proceedings as a whole whilst they were still live, or applying rule 34, the ET was entitled to do as it did and the exercise of its discretion was permissible. Appeal rejected.
THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
Introduction
The background facts
"30. Compared with a white non-African deputy team manager in his or her probationary period, we have no doubt that such an individual would have been treated with respect, courtesy and due deference. That person would have been considered as part of the team and not outside of it. In our view, Miss Brady and Miss Hemming would have wanted such a person to manage them. The all-white placement officers, in particular, Miss Brady had difficulty accepting a black African as their manager. Miss Brady knew that by saying she had no respect for the claimant no disciplinary action would be taken against her such was the measure of her confidence. […]
32. The claimant was racially discriminated against. […] She was constantly complained about, intimidated and ridiculed. Accordingly, in respect of Miss Brady's treatment of the claimant, the claimant's complaint of direct race discrimination is well-founded."
"We have come to the conclusion that Miss Harris' treatment of the claimant was the consequence of poor management. As a result of her other responsibilities she relied heavily on what the placements were telling her about the claimant. This was demonstrated when she referred to mistakes which were earlier on in the claimant's employment and failed to recognise that the claimant had improved during the extended period of probation. The reason for her treatment of the claimant was the failure to objectively manage the claimant and was not because of race. This complaint is not well-founded and is dismissed."
"In relation to the harassment complaint related to the claimant's race, we have taken into account the findings in respect of Miss Brady's and Miss Hemming's treatment of the claimant. We have no doubt that their behaviour had the effect of violating the claimant's dignity and creating an intimidating, degrading, humiliating and offensive work environment for her. This was more than the claimant's perception. It was demonstrated particularly during the time she was deputising for Miss Harris in April and August 2010 and also during the meetings on 23 June and 23 July 2010. She made reference to it in her 25 June 2010 email. From an objective point of view, it was reasonable for such treatment to have the effect of violating the claimant's dignity, creating an intimidating, degrading, humiliating and offensive work environment. The consequence was that she did not feel part of the team and was looking at employment outside of the Council. We find that this complaint is well-founded."
The Claimant's appeal
"[…] there is no need to add a further requirement of reasonable foreseeability and that the robust good sense of employment tribunals can be relied upon to ensure that compensation is awarded only where there really is a causal link between the act of discrimination and the injury alleged."
"20. Mr Dhar [then Counsel for the Claimant] invited the tribunal to find that the treatment meted out to the claimant by Ms Brady was causally connected to the decision taken on 19 October 2010 by Ms Bell to terminate the Claimant's employment. He submitted that the evidence presented during the probation review hearing was largely based on Ms Brady's views of the claimant. He referred to the case of [Laing].
21. Ms Banton [then Counsel for the Respondent] submitted that [Laing] was a personal injury case. It was a difficult argument for the claimant to sustain that her dismissal flowed from the treatment of her by Ms Brady because Ms Bell was independent of what had preceded the probationary review meeting and the tribunal's findings, she said, do not make that connection.
22. We accepted Ms Banton's submissions and concluded that our findings and judgment do not draw a connection between the behaviour of Ms Brady towards the claimant and the claimant's subsequent dismissal. Accordingly, the claimant would only be entitled to injury to feelings compensation."
"The Claimant's position is that having determined that the actions of Elaine Brady and or the others was discriminatory, the Tribunal erred in law in failing to conclude that the dismissal of the Claimant was also based on that discrimination.
a. The decision maker who determined to dismiss the Claimant based her decision on 'inherently discriminatory information from the placement officers' and given that this information was the 'operative, principal, substantial and/or effective cause of the Claimant's' dismissal, it follows that the Claimant's dismissal was 'tainted with race and/or was because of the Claimant's race'.
b. These are the same placement officers, found to 'regularly ask the Claimant to repeat herself' [I interpose to note that the Claimant's first language was not English; though the Tribunal found her easy to understand, there had been concerns expressed, for whatever reason, by those in the team about that] and that they would 'refer matters about the Claimant's performance' to Miss Harris. The conduct of the placement officers is in stark contrast to the finding of the Tribunal that 'the Tribunal did not have any difficulty in understanding' the Claimant."
"[…] relied to a large extent on information given to her by the placement officers about the claimant's performance. Her perception rather than the reality was that the claimant was underperforming which was largely based on the placement officers' views."
"It is clear that Ms Harris' failings are systematic, comprehensive and made in the full knowledge and having found that the Claimant had raised in her email of 25 June 2010 her perception of Miss Brady, such conduct was then actually then witnessed by her on 23 August 2010 [sic]. In those circumstances, the findings of poor management are insufficient to explain Ms Harris' conduct. Bearing in mind the Tribunal has found as a matter of fact that the 'management case statement' was unfair moves the actions of Ms Harris away from omission, into action which without doubt was less favourable treatment."
Hillingdon's appeal
"(1) A person subjects another to harassment in any circumstances relevant for the purposes of any provision referred to in section 1B where on ground of race or ethnic or national origins he engages in unwanted conduct that has the purpose or effect of—
(a) violating that other person's dignity, or
(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him.
(2) Conduct should be regarded as having the effect specified in paragraph (a) or (b) of subsection (1) only if, having regard to all the circumstances, including in particular the perception of that other person, it should reasonably be considered as having that effect."
"In relation to the harassment complaint related to the claimant's race, we have taken into account the findings in respect of Miss Brady's and Miss Hemming's treatment of the Claimant."
"36. There is a lack of necessary clarity as to which actions of Ms Brady were found by the ET to be direct discrimination and/or harassment on grounds of race and when such wrongs occurred. This is not Meek compliant, particularly in a case where issues of time limit and/or continuing act are in issue. […]
37. There is […] no clear finding as to what in fact the last act of direct discrimination or harassment was, nor when it in fact occurred. Nor is this significant point clarified by a careful reading of paragraph 15.54 which makes no necessary findings in relation to conduct of Ms Brady. In all the circumstances this is not sufficient to be Meek compliant on such a significant issue."
"During that time the claimant was in charge of the team. There was a supervision meeting with Miss Hocking on 12 August 2010. […] The claimant said that she felt that the team was managing her rather than she being able to manage the team. She did not feel that she fitted in. She was looking for another job and would like to leave by November 2010."
"In relation to the assertion on the part of the respondent that the complaints prior to 19 October 2010 are out of time, we have come to the conclusion that events relied upon by the claimant preceding 19 October 2010 do form a continuing act. They involved, principally, Miss Harris' and Miss Brady's treatment of her. This covered the period from February to the decision not to extend the claimant's probationary period beyond nine months."
"The treatment we found that was racially discriminatory and harassment related to race, was meted out to the claimant only by Ms Brady."
"In our findings of fact […] we made reference to that period when Miss Harris was on leave in August. She returned on 23 August 2010. We referred to the claimant's treatment during the time when she deputised for Ms Harris. From that paragraph, at the very latest, the last act would have been on 23 August 2010. We have, however, looked at the conclusion part of our judgment, paragraph 32, in which we stated that the claimant was racially discriminated against as those in the placement team believed that, as a black African, she was not up to the task of being a deputy manager. She was constantly complained about, intimidated and ridiculed. Reference to that would suggest that the claimant's treatment was continuous up until the time her employment was terminated but that was not in the tribunal's findings. Furthermore, in the claimant's witness statement she does make reference to two incidents in September 2010, but she had not given specific dates. In respect of those matters, the tribunal did not make any findings of fact. Even if we were to take those September matters into account, the complaint, in so far as it concerns Ms Brady's treatment of the claimant, is still out of time. For clarity, the last act was on 23 August 2010."
"12. Of concern to Mr Dhar is that he did not call the claimant during the liability hearing to give evidence relevant to the out of time issue and whether we should exercise our discretion and extend time on just and equitable grounds.
13. Ms Banton objected to the time point being considered by the tribunal. She submitted that it was referred to in the list of issues to be considered as part of the liability hearing, paragraph 3.5, with reference being made to the exercise of the tribunal's discretion.
14. Unfortunately, the claimant was not called during the liability hearing to give evidence in relation to extending the time limit. Having considered the submissions our ruling is that it is a matter the tribunal should hear and determine as it formed part of the issues at the liability hearing. From our decision, the last act was on or around 23 August 2010."
"The tribunal […] adopted, the submissions made by Mr Dhar and do find that the claimant was relying on the outcome of the appeal hearing in support of her case. At the time she was unrepresented. She thereafter sought legal advice and was represented on or around the first week in January 2011. Within a short time thereafter the claim form was presented to the tribunal. There was no prejudice suffered by the respondent as it was able to call Ms Brady and other witnesses to rebuff the claimant's contentions. As regards the merits, the claimant has a judgment in her favour. Equally, a majority of the complaints have been dismissed. The period of delay was short. On balance, the tribunal will exercise its discretion on just and equitable grounds and extend time in respect of the complaint against Ms Brady. We have taken into account the guidance given by the Court of Appeal in the case of Robertson v Bexley Community Centre [2003] IRLR 434. The factors the tribunal may consider in exercising its discretion are: the reason for and the extent of the delay; whether the claimant was professionally advised; whether there were any genuine mistakes based on erroneous information; what prejudice, if any, would be caused by allowing or refusing to allow the claim tom [sic] proceed; and the merits of the claim. There is no general rule and the matter remains one of fact."
"Subject to paragraph (4), decisions may be reviewed on the following grounds only [my emphasis]—
(a) the decision was wrongly made as a result of an administrative error;
(b) a party did not receive notice of the proceedings leading to the decision;
(c) the decision was made in the absence of a party;
(d) new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at that time; or
(e) the interests of justice require such a review."
"[…] the fact that a new evidence review was excluded by the terms of rule 10(1)(d) would not necessarily exclude it under rule 10(1)(e), but that such an application invoking rule 10(1)(e) must be considered keeping an eye on the terms of rule 10(1)(d) [I interpose to say for '10' one might now read '34' and for '(1)' one might now read '(3)']. After all, each of the provisions of rule 10(1), from paragraphs (a) to (e), is there in the interests of justice, and clearly if the interests of justice as embodied in the terms of rule […] (d) exclude a fresh evidence review it will require exceptional circumstances before it can be just to allow it under the 'sweeping up' or 'longstop' provision of rule […] (e). Phillips J said, at p. 404 [of Flint]:
'But I do think that it is necessary, in case which otherwise falls within paragraph (d) … to find some other circumstance, some mitigating factor, to make it such that the interests of justice require such a review.'
In each of the cases on which Phillips J's decision is founded, the 'other circumstance' or 'mitigating factor' considered was a circumstance connected with the failure to produce the evidence at the first hearing. In no case was it any other circumstance, such as the unusual nature of public importance of the case as a whole. In our judgment, the 'other circumstance' or 'mitigating factor' must relate to the failure to bring the matter within rule 10(1)(d). There must be something which in the interests of justice must be available to temper in favour of the applicant the rigour of the terms of rule 10(1)(d), designed as they are to do justice to both sides and to the community."
This approach was adopted by the Court of Appeal in Stanley Cole (Wainfleet) v Sheridan [2003] ICR 1449.
Conclusions