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||BAILII case number:  UKEAT 0791_01_2210
||Appeal No. EAT/0791/01
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
||At the Tribunal
||On 26 June 2002
||Judgment delivered on 22 October 2002
MRS RECORDER COX QC
MS B SWITZER
MRS R A VICKERS
|1) SANDWELL METROPOLITAN BOROUGH COUNCIL 2) MR P FOOTE
|MR S SWANSON
Transcript of Proceedings
© Copyright 2002
|For the Appellants
||MR A GUMBITI-SIMUTO
Legal and Democratic services
Sandwell Council House
PO Box 2374
|For the Respondent
||MR S SWANSON
(Respondent, in person)
MRS RECORDER COX QC
- This is an appeal from the Decision of the Birmingham Employment Tribunal, promulgated on the 23rd May 2001, dismissing the Applicant's complaints of direct racial discrimination and breach of contract against both Appellants but upholding his complaint of victimisation on a limited basis. The Appellants contend that the Tribunal erred in law in concluding, on the facts found, that the Appellants had unlawfully victimised the Applicant, now the Respondent to this appeal, in relation only to the timing of his suspension and of the bringing of misconduct allegations against him. The Respondent cross appeals, alleging that the decision both to dismiss all his complaints of racial discrimination and to uphold his victimisation complaint on a limited basis only was perverse. He alleges in addition that there was bias on the part of the Tribunal, in favour of the Appellants, which he maintains was apparent within a short time of the commencement of the hearing. The Respondent also cross-appealed initially against the dismissal of his complaint of breach of contract (see paragraph 5.1 of the Respondent's Notice). However, the Tribunal held, correctly, that it had no jurisdiction to determine the breach of contract claim because the Respondent was still employed by the Appellants at the time of presentation of his Originating Applications. In paragraph 6 of the Decision the Tribunal records that this complaint was withdrawn. The Respondent has not pursued that point before us and we shall therefore say no more about it.
- The Respondent, who is black and of African Caribbean origin, was employed by the Appellants as a Senior Legal Assistant in the Development Section of their Legal Services Division. The second Appellant, Mr. Foote, is the Council's Chief Solicitor. As a result of organisational changes in January 1998 the Respondent came under the direct line management of Mr. Foote. From that time onwards almost the entirety of the Respondent's work consisted of "section 11 claims" for housing disrepair, brought against the Appellants under section 11 of the Landlord and Tenant Act 1985.
- Problems arose in relation to the Respondent's work in the Section. Complaints were made about the conduct of the files he was handling and about his late submission of time sheets for flexi-time working. Disciplinary proceedings were instituted in December 1998 and the Respondent received a formal written warning. His appeal was subsequently rejected. In January 1999 the Respondent made a formal written complaint of racial discrimination against Mr. Foote and Ms. Gwinn, a Senior Solicitor, alleging amongst other things unfair treatment, unreasonable fault finding and excessive supervision. On 1st March 1999, the Respondent presented his first Originating Application alleging racial discrimination and breach of contract.
- Subsequently, on 12th July 1999, further disciplinary proceedings were instituted against the Respondent for gross misconduct in falsifying time sheets, claiming hours worked at home without authorisation, failing to comply with standard working hours and conducting cases in such a way as to elicit complaints from solicitors. The Respondent was suspended from duty forthwith on full pay. His second Originating Application was presented to the Tribunal on 29th November 1999, whilst the disciplinary proceedings were still continuing. The Respondent alleged that his suspension and the subsequent investigations were acts of victimisation against him following his complaint of discrimination earlier in the year.
- By order of the Chairman, made on 6th December 1999, the claims were consolidated and an amended Originating Application was served, giving further particulars of the two claims. In their amended Notice of Appearance the Appellants denied all the allegations. The hearing, which lasted some 16 days in total, began in July 2000, at which stage the Respondent was legally represented. It resumed in January 2001, when he appeared in person. The Tribunal heard evidence from seven witnesses and considered a large number of documents, totalling over 1000 pages.
- The Respondent appeared in person at the appeal hearing before us. The Appellants were represented by Mr. Gumbiti Zimuto of counsel, who had also appeared below. There was some initial confusion, when the appeal began, as to whether this was the full or the preliminary hearing for this appeal. Despite the fact that the Registrar's letter had referred to the "notice of hearing", the Respondent had understood this to be the preliminary hearing only and he requested an adjournment. However, after some discussion, the Respondent confirmed that he was anxious to avoid any further delay and that he was happy to proceed on the basis that, if he needed it, some time would be given to him to prepare his response after Mr. Zimuto had completed his submissions. In the event the appeal proceeded without interruption and we are grateful to both Mr. Zimuto and the Respondent for the assistance they gave us in dealing with the issues to be determined.
The Tribunal's Decision
- The Decision, which runs to some 38 pages, is a lengthy one, reflecting the substantial amount of evidence heard and the large number of factual issues to be determined. The Tribunal's findings of fact appear at paragraphs 30 – 128. The key findings in our view are as follows. At paragraph 59 the Tribunal refers to the decision, by Mr. Foote and Ms. Gwinn, to review the files relating to all section 11 claims, following complaints by the Risk Manager about the way they were being handled. Paragraphs 60 onwards deal with the Appellants' dissatisfaction with the Respondent's handling of his files and the meeting which took place on 31st July 1998 between the Respondent, Mr. Foote and Ms Gwinn where their concerns were expressed.
- At paragraph 73 the Tribunal found as follows:
"73. The tribunal is satisfied that during the meeting of 31 July 1998 Mr. Foote and Ms. Gwinn sought to identify and explain to the applicant what they considered to be weaknesses in connection with his handling of his cases and to make constructive suggestions to enable particular cases to be dealt with and avoid getting into similar difficulties in the future."
- It was agreed that there would be a monthly review of all files and, in carrying out this
exercise, Ms. Gwinn made appointments with each member of staff handling the files being monitored. At paragraph 79 the Tribunal found that they were satisfied:
"….that the applicant was not singled out for, or subjected in any way to, more frequent monitoring than other members of staff with a similar number of files as he had, or [as] another employee would have been monitored in similar circumstances."
- After the monitoring meeting with the Respondent on 10th November 1998, Ms. Gwinn sent him a memorandum dated 16th November, which showed him to have a case-load of 12 live (pre-settlement) files and 17 costs files, which she did not regard as onerous. Instructions were given to him as to how he should handle these files and, in particular, asking him to ensure that the automatic directions of the court were complied with on the live files. At paragraphs 83 – 85 the Tribunal finds that a letter was received from a firm of solicitors concerning an unless order being sought for non-service of the list of documents in one of the Respondent's cases. The automatic directions had not been complied with. Ms. Gwinn wrote to the Respondent pointing this out. He replied, criticising Ms. Gwinn's handling of two cases. At the December monitoring meeting the Tribunal finds (paragraph 85) that:
"….Ms. Gwinn took steps to try and calm the situation. She discussed the issues raised in the memorandums passing between them. She explained her reasons for writing to the applicant as she did. The applicant indicated that he accepted Ms. Gwinn's explanation. Ms. Gwinn felt that progress was being made towards starting to build a better working relationship between the two of them." However they then state (para.86) that "….Ms. Gwinn was on extended sick leave between the end of December 1998 and the end of February 1999. On Ms. Gwinn's return to work she learned that the applicant had made a complaint of harassment against her and that the applicant had presented the first application."
- In subsequent paragraphs the Tribunal records its findings that, in October 1998, Mr. Foote was summoned to appear personally before a District Judge to explain why the Council had failed to comply with the Court's directions in cases being dealt with by the Respondent; and that he had to apologise for what had occurred. Mr. Foote had not previously been directed to appear before a member of the judiciary. He informed the Respondent that there could be no more excuses. At paragraph 92 the Tribunal stated that they were satisfied:
"….that Mr. Foote was not treating the applicant differently from how others would have been treated in those circumstances. The applicant was responsible for the conduct of the file the subject of the unless order which led to Mr. Foote being required to appear before the District Judge and the matters about which the District Judge complained. Mr. Foote would not have been acting properly himself if he did not explain to the applicant the gravity of what had taken place and had not taken steps to reduce the likelihood of the conduct complained of by District Judge Brown being repeated."
- At paragraphs 93 – 95 the Tribunal finds that three firms of solicitors acting in separate, section 11 claims wrote to the Appellants in January 1999, complaining about delay and inaction on various cases. These were all cases being handled by the Respondent.
- In relation to time-keeping and costing records, the Tribunal found (paras. 101 – 104) that the Respondent regularly submitted his time sheets late or did not submit them at all until personally asked to do so and that Mr. Foote had spoken to him about this on at least six occasions during 1998. They found that, although other employees were late from time to time, the Respondent was the only member of staff in the Division who was persistently late in submitting his time sheets and to whom Mr. Foote had to speak on more than a few occasions. At paragraphs 103-4 the Tribunal found that in November 1998 the Respondent was late again in handing in his time costing sheets and that on 30th November Mr. Foote told him to hand in all his time sheets for October by 1st December. The Respondent was told that this was the last warning he would be given on the issue. They found that:
"…It is quite clear that the applicant was fully aware of the gravity of the matter since the applicant recorded in his diary that it was the last time he was to be spoken to with regard to it."
- The Respondent completed a flexi-time sheet for October 1998 which, on his calculations, showed that he was in arrears in relation to the hours he was required to attend by some 17 hours and 30 minutes.
- In December 1998 Mr. Foote decided to institute disciplinary proceedings against the Respondent to consider two allegations:
(1) the failure to submit his time-sheet for the week ending 24 October 1998 in accordance with instructions; and
(2) that the number of hours, for which the Respondent was in deficit on his flexi-sheet for the months of October and November, exceeded that which was allowed under the flexi-time scheme.
- At paragraphs 105 – 113 the Tribunal sets out the facts found in relation to these disciplinary proceedings. It is to be noted that, although the Respondent had written to Mr. Foote complaining about the discriminatory nature of Mr. Foote's management practice, he told Mr. Foote that he was not complaining of racial discrimination and had chosen his words carefully (see para. 108). The hearing took place on 10th December before Mr. Cork, Head of Legal and Democratic Services. The Respondent attended in person. In respect of the first allegation the Respondent was issued with a formal written warning that his conduct was not acceptable and that any further offence within an 8 month period would result in further disciplinary action. On the breach of the flexi-time scheme issue it was accepted that the Respondent had not been seriously in arrears before October 1998 and Mr. Cork therefore dealt with him more leniently than would otherwise have been the case. The Respondent was returned to standard working hours until 31st March 1999. One of the requirements of standard working hours was that he should attend at work no later than 9 a.m. each morning.
- The Respondent exercised his right of appeal and this is dealt with at paragraphs 111-113. A hearing date was fixed for 29th January 1999. However, it appears that there was considerable delay in hearing this appeal. After initially objecting to the person nominated to hear the appeal, causing the January date to be vacated, the Respondent then asked for further dates in April, May and July all to be vacated. The hearing eventually took place on 16th September 1999 before Mr. Boston, Head of Housing Management, who considered the issues and decided to reject the appeal. The Tribunal found (para. 112) that:
"….At no time during the appeal hearing did the applicant or his solicitor suggest or produce evidence to the effect that, in respect of the disciplinary proceedings, the applicant had been treated less favourably than white employees."
- At paragraphs 114 – 118 the Tribunal deals with the Respondent's complaint of racial harassment against Mr. Foote and Ms. Gwinn. They find that he made a formal written complaint on 8th January 1999 (the date was mis-stated as 1998 in paragraph 116), which was then investigated. His complaint included allegations of unfair treatment, unreasonable fault finding, watching over his every move, taking away responsibilities, belittling his abilities and excessive supervision. Witnesses were interviewed by the investigating team, who produced an 86 page report concluding that there was no evidence of harassment or of any intention to undermine the Respondent by either Mr. Foote or Ms. Gwinn and no evidence to suggest that the Respondent's racial origin influenced their actions. Following receipt of this report Mr. Cork wrote to the Respondent on 11th November 1999 informing him of its conclusions.
- Events which led up to the Respondent's suspension in July 1999 are then set out at paragraphs 119 – 124. During the early months of 1999, when the Respondent was subject to the requirement to work standard working hours, the Tribunal finds that he was late arriving at work in the mornings on all save one occasion. After he returned to flexi-time in April he was late arriving at work on many occasions but completed the time-sheets to record that he had arrived at the correct time of 10.30 a.m. During June 1999 Mr. Foote became aware that the Respondent had claimed to be working at home on a Bank Holiday for which he had not sought prior approval, as was required. Had he not claimed for this work he would have been more than 5 hours in debit on his flexi-time (as had been the position at the disciplinary proceedings in 1998). Further, at paragraph 123 the Tribunal finds that, of the letters received from solicitors during January to July 1999, three of them raised issues of concern on files being handled by the Respondent. Mr. Foote drew these letters to the attention of Mr. Cork.
- Crucial findings of fact, in relation to the Appellants' contentions in this appeal, are set out at paragraphs 124 – 126, as follows:
"124 Four members of the Development Division, Messrs Cartwright and Jones and Mesdames Thomas and Deller, complained to Mr Foote that the applicant was continually arriving late and signing in at 10.30 am. Those individuals were "very much aware" of the applicant's complaint of racial harassment against Mr Foote and Ms Gwinn and also of the first application to the tribunal. Those individuals were prompted to report the applicant's continued lateness to Mr Foote because the applicant had brought his complaint of racial harassment and brought the first application to the tribunal and yet had persistently failed to attend on time. They were confronted by the applicant arriving late, having made the complaints against Mr Foote and Ms Gwinn and having made the first application to the tribunal, which they considered to be unfounded. It was their complaint to Mr Foote which was the stimulus resulting in Mr Foote investigating the matter further and requesting that Mr Cork institute disciplinary proceedings against the applicant for falsification of time sheets, failing to work standard hours during the period the ability to allow the flexi time scheme was withdrawn and claiming hours worked at home without prior authorisation.
125 Mr Cork considered the position. On 12 July 1999 Mr Cork, together with Ms Pickerill, a Personnel and Training Officer, met with the applicant who was accompanied by Mr Ahmed. The applicant was suspended forthwith from duty on full pay following allegations of gross misconduct. Those allegations were:
1 Falsification of time sheets;
2 Failure to comply with standard working hours during the period when the flexi time scheme was withdrawn;
3 Claiming hours worked at home without prior authorisation; and
4 Conducting law cases in such a way as to elicit complaints from firms of solicitors.
The fourth ground was included following Mr Cork's consideration of the correspondence received from firms of solicitors relating to the applicant's conduct of the files for which he was responsible. On 13 July 1999, Mr Cork wrote to the applicant the letter which is at pages 931 and 932 in the bundle.
126 At the time when the second application was presented to the tribunal the applicant's suspension was continuing whilst investigations were taking place."
- At paragraphs 132 – 139 the Tribunal directs itself, correctly, as to the relevant statutory provisions in the Race Relations Act 1976 dealing with racial discrimination and victimisation and with discrimination in the employment field. They remind themselves in paragraph 138 of the guidance to be found on deciding complaints of direct racial discrimination in the cases of King v Great Britain China Centre  ICR 516 and Zafar v Glasgow City Council  IRLR 36. They do not refer, however, to cases where guidance has been given on victimisation complaints brought under section 2 of the 1976 Act and in particular the decision of the House of Lords in Nagarajan v London Regional Transport  ICR 877. Victimisation has since been considered again by the House of Lords in Chief Constable of West Yorkshire v Khan  ICR 1065. Nor do they refer to cases which explain what it means to subject an employee to a "detriment" as provided in section 4(1)(c).
- The Tribunal's decisions on all the complaints are contained in paragraphs 140 – 186. In relation to the Appellants' appeal against the finding of unlawful victimisation, the following findings are the material ones.
- Firstly, in the context of time issues in paragraph 141, they consider the position of the suspension and institution of disciplinary proceedings on 12th July 1999.
"The suspension of the applicant was continuing at the time of presentation of the second application. The tribunal has concerns as to the timing of the suspension and institution of disciplinary proceedings against the applicant. ….. The tribunal is satisfied that there were proper grounds for the suspension and the institution of disciplinary proceedings against the applicant. However the tribunal has serious concerns as to the timing of that action. …. The timing of the suspension and institution of disciplinary proceedings against the applicant was so inextricably bound up with the suspension and part of it that it is part of the suspension."
- Having dismissed all the Respondent's complaints of direct racial discrimination, the Tribunal turned to victimisation at paragraph 171. Having found the Respondent's formal grievance against Mr. Foote and Ms. Gwinn and his first Originating Application to amount to protected acts for the purposes of section 2 of the 1976 Act, the Tribunal then found as follows, at paragraphs 172 - 176:
"172 The applicant was suspended on 12 July 1999 for falsification of timesheets, failing to work standard hours during the period the facility to use the flexi-time sheet scheme was withdrawn, claiming hours worked without prior authorisation and conducting his work in such a way as to elicit complaints from solicitors. The tribunal is satisfied that there were prima facie grounds for each of these complaints, although it has not been necessary for this tribunal to investigate whether the claims were later substantiated and it has not done so. The tribunal is satisfied that conduct such as that of the applicant would have lead to suspension at some time, whatever the ethnicity and/or skin colour of the employee. It is not appropriate to draw any inference, or inferences, that the conduct in suspending the applicant because of his misbehaviour was unlawful.
173 Mr Foote knew the applicant was a regular attender and could well have known that the applicant signed in on time despite his late arrival. During the time the standard hours were imposed on the applicant on all but one occasion the applicant arrived late. This was known to Mr Foote and Mr Cork. The instance of claiming hours for worked at home without authorisation was known during June 1999 and there had been a regular series of complaints with regard to the manner in which the applicant's work was carried out.
174 The tribunal has concern as to the timing of the suspension and institution of the disciplinary process in July 1999. The tribunal questioned Mr Foote with regard to it. Having subjected the matter to anxious consideration, the tribunal is satisfied that the disciplinary suspension and institution of disciplinary proceedings in July 1999, took place at that time because of complaints by four of the applicant's colleagues. Those colleagues were aware of the allegation of unlawful racial discrimination made by the applicant against Mr Foote and Ms Gwinn and of the first application to the tribunal. Those colleagues considered there was nothing in the allegations against the Council and Mr Foote and Ms Gwinn and that the first application to the tribunal was unlikely to succeed. Those colleagues were confronted by the applicant's conduct in that respect when he constantly breached the Council's requirements as to attendance. That is the reason they complained to Mr Foote when they did and that is the reason the disciplinary action was taken against the applicant in July 1999 when it was so taken. There is a casual link between the applicant's complaints against Mr Foote and Ms Gwinn alleging they unlawfully discriminated against him on grounds of his race and the first application, and the report to Mr Foote at the time at which Mr Foote instituted the disciplinary suspension and disciplinary proceedings against the applicant. The suspension and institution of the disciplinary proceedings when they took place was less favourable treatment than would have occurred if the applicant had not brought the first application and made the allegations against Mr Foote and Ms Gwinn. The applicant would not have been disciplined when he was in July 1999 if his colleagues had not reported his misconduct to Mr Foote when they did so. Thus the applicant was treated less favourably than the respondents would have treated other persons who had not committed the protected acts who had behaved as the applicant had behaved.
175 In his closing submissions Mr Zimuto contended that the allegations made by the applicant in his harassment complaint and the first application were false and not made in good faith. This suggestion was not put to the applicant, and is not made out.
176 By suspending the applicant in July 1999 and instituting disciplinary proceedings against the applicant at the time, the Council committed an unlawful act of victimisation against the applicant, since it was to the applicant's detriment satisfying section 4(2)(c) of the Act."
- In the concluding paragraphs of the Decision, the Tribunal emphasised that, save in respect of the timing of suspension and subsequent investigations, none of the Respondent's complaints of racial discrimination or victimisation succeeded and that the hearing should therefore resume to consider remedy only on the basis of the timing of the suspension.
- Section 2 of the Race Relations Act 1976 defines victimisation for the purposes of the other provisions of the Act. Section 2 provides that:
"(1) A person (the discriminator) discriminates against another ("the person victimised") in any circumstances relevant for the purposes of any provision of this Act 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-
(a) brought proceedings against the discriminator or any other person under this Act; or
(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act; or
(c) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person; or
(d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act,
or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them."
By virtue of Section 4, discrimination as set out in section 2 is unlawful in the employment context where it subjects an employee to a detriment:
"4(1) It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against another –
(c) by dismissing him or subjecting him to any other detriment."
- In the case of Nagarajan v London Regional Transport  ICR 877 the House of Lords held that, on a complaint of victimisation under section 2(1), the discriminator need not have realised that he had in fact been motivated by his knowledge of the complainant having previously sought to enforce rights under the Act; and that, accordingly, the tribunal's finding that interviewers in a recruitment exercise had "consciously or subconsciously" been influenced by the fact of the applicant's previous complaints fell within the ambit of section 2(1). At page 886A Lord Nicholls stated that:
"The key question under section 2 is the same as under section 1(1)(a): why did the complainant receive less favourable treatment?…… If the answer to this question is that the discriminator treated the person victimised less favourably by reason of his having done one of the acts listed in section 2(1) ("protected acts"), the case falls within the section. It does so even if the discriminator did not consciously realise that, for example, he was prejudiced because the job applicant had previously brought claims against him under the Act."
- Subsequently, in Chief Constable of West Yorkshire Police v Khan  ICR 1065, the House of Lords has considered victimisation again. After observing that the words "less favourable treatment" in section 2 call for a simple comparison between the treatment afforded to the complainant who has done a protected act and the treatment which was or would be afforded to other employees who have not done the protected act, Lord Nicholls turned to the phrase "by reason that" and stated as follows, at paragraph 29 of his speech:
"….[by reason that] does not raise a question of causation as that expression is usually understood. Causation is a slippery word, but normally it is used to describe a legal exercise. From the many events leading up to the crucial happening, the court selects one or more of them which the law regards as causative of the happening. Sometimes the court may look for the operative cause, or the 'effective' cause. Sometimes it may apply a 'but for' approach. For the reasons I sought to explain in Nagarajan's case….a causation exercise of this type is not required either by s.1(1)(a) or s.2. The phrases 'on racial grounds' and 'by reason that' denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact."
Other members of the Appellate Committee endorsed this approach to the phrase "by reason that" in section 2.
- With regard to the meaning of the word "detriment" in section 4(1)(c), it is clearly established that subjecting someone to a detriment means no more than putting him/her under a disadvantage (Ministry of Defence v Jeremiah  IRLR 436 ). In De Souza v The Automobile Association  IRLR 103 the Court of Appeal held that, before an employee can be said to have been subjected to a detriment, the tribunal must find that by reason for the acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work. At paragraph 23 on page 107 May L.J., giving the judgment of the Court, said that:
"Thus if…..the discrimination was such that the putative reasonable employee could justifiably complain about his or her working conditions or environment, then whether or not these were so bad as to be able to amount to constructive dismissal, or even if the employee was prepared to work on and put up with the harassment, I think this too could contravene the subsections."
- In this case, the Respondent's pleaded complaint was that the act of suspension and the subsequent investigations into his conduct were themselves acts of victimisation, allegations which the Tribunal rejected (see paragraphs 8 (iv) and(v) of the amended Originating Application). He had not complained, and did not before the Tribunal complain, about the timing of those acts. Indeed, one of the grounds of his cross-appeal before us is that the Tribunal's decision to limit their finding to one of victimisation merely as to the timing of these acts is perverse (paragraph 5.1 of his Notice).
- In Chapman v Simon  IRLR 124 the Court of Appeal held that the Tribunal's jurisdiction is limited to those complaints which have been made to it and that it is the act of which complaint is made and no other that the Tribunal must consider and rule upon. If the act of which complaint is made is found to be not proven, it is not for the Tribunal to find another act of racial discrimination of which complaint has not been made to give a remedy in respect of that other act. Further, in Dimtsu v Westminster City Council  IRLR 450 , the EAT, by a majority, held (paragraphs 29 and 30) that:
"[Tribunal] proceedings are…..concerned with the determination of the issues before the Tribunal which does not, where a complaint under the Act of racial discrimination has been lodged, have an inquisitorial role to investigate generally and see that the requirements of the Act have in all respects been observed by the respondents. There is a wide power to allow amendments but no consideration was given to any exercise of that power at any stage before the Industrial Tribunal.
……. The Industrial Tribunal by a majority found against the complaint of the original serious allegations on the basis that what was alleged by Mr. Dimtsu did not happen. The majority of us does not consider that the Industrial Tribunal was under a duty to investigate other possible complaints even though arising out of the same incident unless it was asked to do so. It s duty was to adjudicate upon the issues before it and this it did. If Mr. Dimtsu wanted other issues adjudicated upon it was for him, through his adviser, to raise them, if necessary by applying for leave to amend. It was argued for Mr. Dimtsu before us that the evidence called by the parties in fact covered the subject-matter of the complaint now sought to be advanced and that it would be artificial to look at the questions in issue on the pleadings in isolation…. That seems to the majority of us to confuse the scope of the evidence with the identification of the applicant's complaint. The majority accepts that it was necessary for the Industrial Tribunal to receive evidence about the whole interview with Mr. Page in order properly and adequately to adjudicate upon the issues before it, but not that it was necessary for the Industrial Tribunal, having found by a majority that the factual base for the complaint actually made did not exist, to go on and investigate other complaints which had not been made."
- Mr. Gumbiti-Zimuto, on behalf of the Appellants, attacks the Tribunal's Decision on victimisation on four grounds, which we now deal with in turn.
- Firstly, he criticises the fact that the Tribunal even considered the timing of the suspension as a discrete act of victimisation, when this had never been part of the Respondent's complaint, either in his pleaded case or in evidence before the Tribunal. He relies in this respect on the decisions in the Chapman and Dmitsu cases referred to at paragraph 30 above. The Respondent has not sought to persuade us that the Tribunal's finding was a permissible one in this case. Indeed he contends that their decision to limit the victimisation finding in the way that they did was perverse. In his cross-appeal he mounts a much more fundamental attack upon the Tribunal's decision as a whole, alleging that their conclusions that his substantive complaints of racial discrimination and victimisation should be dismissed were perverse.
- We agree with the Appellants' submissions on this point. Whilst the Tribunal found that they themselves had concerns about the timing of the suspension and of the disciplinary proceedings which followed it, it is clear that the Respondent was not complaining about the fact that he was suspended in July 1999, rather than at some later date. No application was ever made to amend his claim to add such a complaint. The Tribunal's direction to themselves that the timing of the suspension was part and parcel of the suspension itself meant, in our view, that they lost sight of the simple fact that this was not and never had been the Respondent's complaint. In this way we consider that they confused the scope of the evidence with the identification of the Respondent's complaint. We find therefore that the Tribunal erred in law in upholding the victimisation complaint against the Appellants on the basis of the timing of the suspension alone.
- The second challenge to the Decision is on the basis that it was not open to the Tribunal to decide, on the facts found, that his suspension in July 1999 was to the Respondent's detriment within the meaning of section 4(1)(c). The Appellants rely upon the decisions in Jeremiah and De Souza and contend that the finding in paragraph 176 that there was a detriment was, in the circumstances of this case, perverse.
- It is clear from paragraph 141 that the Tribunal was satisfied on the evidence that there were proper grounds for the Respondent's suspension and for the institution of disciplinary proceedings against him. They find expressly in paragraph 172 that, as at July 1999, there were prima facie grounds for each of the complaints for which he was suspended, namely falsification of timesheets, failing to work standard hours during the period when the facility to use the flexi-time scheme was withdrawn, claiming hours worked without prior authorisation and conducting his work in such a way as to elicit complaints from solicitors. They find, further, that they were satisfied that conduct such as that of the Respondent would have led to suspension at some point. In paragraph 173 they find that Mr. Foote knew both that the Respondent was regularly a late attender and that, during the time that standard hours were imposed on him, he arrived late on every occasion save one. Further Mr. Foote was aware in June 1999 of the instance of claiming hours for work at home without prior authorisation; and there had been a regular series of complaints in relation to the way in which he carried out his work on the files. Letters received from solicitors between January and July 1999 were found by the Tribunal to have been drawn to Mr. Cork's attention by Mr. Foote (paragraph 123). It is to be recalled, in the context of delay in taking further disciplinary action against the Respondent, that his appeal from the first disciplinary sanctions imposed in December 1998 was not finally determined until September 1999.
- We accept the Appellants' submissions in relation to detriment on these facts and agree that the Tribunal erred in finding that the Respondent had been subjected to a detriment. The test to be applied is whether a reasonable employee would or might take the view that he had been disadvantaged by the suspension. The Tribunal's findings were that, timing aside, the decision to suspend and discipline him could not be criticised. An employee complaining about suspension and the institution of disciplinary proceedings which were appropriate, and for which there were proper grounds, would not be acting reasonably. The Tribunal's decision rests on their view that it was the complaint of the four members of the Development Division about the Respondent's regular late attendances, which was the stimulus for Mr. Foote to investigate the matter further and to request that Mr. Cork institute disciplinary proceedings against the Respondent at the time he did. However, we do not consider that any detriment has been identified merely by the employers' action in taking what was plainly justified disciplinary action upon receipt of the complaint. The Respondent could not reasonably complain that he had been subjected to any detriment if such action had been taken just hours or minutes before the four members of staff complained to Mr. Foote. The Tribunal has identified no particular disadvantage to which the Respondent was subjected arising from the timing of his suspension, which was on full pay. This ground of appeal also succeeds in our view.
- The Appellants further challenge the Decision in relation, thirdly, to the findings as to "less favourable treatment" and, fourthly, treatment "by reason that" the Respondent had committed protected acts. They submit that the members of the Tribunal asked themselves the wrong question when determining whether the Respondent had shown that he was treated less favourably by reason that he had committed protected acts.
- The Tribunal's conclusion, at paragraph 174, as to less favourable treatment was that:
"…The suspension and institution of the disciplinary proceedings when they took place was less favourable treatment than would have occurred if the applicant had not brought the first application and made the allegations against Mr. Foote and Ms. Gwinn. The applicant would not have been disciplined when he was in July 1999 if his colleagues had not reported his misconduct to Mr. Foote when they did so. Thus the applicant was treated less favourably than the respondents would have treated other persons who had not committed the protected acts who had behaved as the applicant had behaved."
- However, the Tribunal's finding on the evidence was that Mr. Foote responded to a complaint about the Respondent's lateness from four members of the Division, by conducting further investigations and subsequently requesting that Mr. Cork institute disciplinary proceedings. It is also clear from the findings of fact in paragraph 125 that it was Mr.Cork who considered the position and decided to suspend the Respondent and institute disciplinary proceedings, for which the Tribunal found there were proper grounds. The correct comparator in these circumstances is an employee who had not done a protected act but about whom a justified complaint as to lateness was made to Mr. Foote, resulting in his further investigations and a report to Mr. Cork. What is absent from the Tribunal's reasoning is any finding that, in these circumstances, Mr. Foote would have done anything different. The "treatment" identified by the Tribunal was the suspension and institution of disciplinary proceedings, which was carried out by Mr. Cork. He was therefore responsible for the timing of his suspension because it was his decision. There is no finding by the Tribunal that, by suspending the Respondent, Mr. Cork was treating him less favourably than an employee who had not committed any protected act but whose conduct had been investigated by Mr. Foote and reported to Mr. Cork for him to consider disciplinary proceedings.
- The only actions which the Tribunal find were tainted by the fact that the Respondent had brought proceedings and made complaints of discrimination were the actions of the four members of staff in the Division in complaining to Mr. Foote about the Respondent's lateness. However, their complaints to Mr. Foote were not the acts of victimisation. On receipt of their complaints Mr. Foote carried out further investigations and reported to Mr. Cork and there are no findings that Mr. Foote's actions were tainted in any way. The timing of the acts of victimisation, suspension and the institution of disciplinary proceedings, was dictated by Mr. Cork, whose decision it was to suspend. The Tribunal's finding in paragraph 174 that there was a causal link between the report to Mr. Foote and the time at which Mr. Foote instituted suspension and disciplinary proceedings is erroneous. They had already found as a fact that Mr. Cork decided whether and when to suspend the Respondent.
- For these reasons we all agree that the Tribunal erred in finding that the Respondent was treated less favourably by the Appellants, by reason of his having committed protected acts, and we agree that the appeal should be allowed. On the basis of the findings of fact we consider that it was not open to this Tribunal to find that the Appellants had discriminated against the Respondent by victimising him and therefore direct that the Tribunal's finding should be substituted by the finding that the Respondent was not the victim of unlawful victimisation within the meaning of Section 4(1)(c) of the Act, in relation to the timing of his suspension.
- The Respondent seeks to challenge the entirety of the Tribunal's Decision on essentially two bases. Firstly, he alleges that the decision to dismiss all his complaints, save the limited victimisation complaint, was perverse and that the limited finding on victimisation was also perverse and a "token" decision. He contends that no reasonable tribunal would have come to these decisions on the facts and that the whole of the decision should be set aside. Secondly he alleges that the Tribunal showed bias in favour of the Appellants within a very short time of the hearing commencing, which continued during the hearing to the extent that he instructed his counsel to raise the issue. In this way he contends that he was not given a fair hearing of his complaints, in breach of Article 6 of the European Convention of Human Rights, and that the Decision and its reasoning confirms that the Tribunal was biased against him.
- We have seen both the Respondent's Statement dealing with bias, dated the 15th August 2001 and the Chairman's Comments on that Statement dated 4th December 2001. The Respondent presented his submissions in a skeleton argument, which he developed orally before us.
- The Tribunal refer to the allegations of bias made during the hearing in their Decision. At paragraphs 14-15 they refer to the fact that, on the last day of the hearing in July 2000, counsel then acting for the Respondent told the Tribunal that the Respondent considered that a question from one of the lay members indicated bias. It seems that the Respondent's case was that Ms. Gwinn had never had a quiet word with him about his files. Referring to a confirmatory memo the lay member had asked Ms. Gwinn whether she thought that a quiet word had been had with the Respondent about his files at monitoring meetings, which invited a positive response. Once the issue was raised the Tribunal describe in paragraph 15 the steps taken in response to it. Essentially, the Chairman sought confirmation that neither lay member had made up his mind on any matter and that each was happy to continue hearing the case. Once such confirmation was obtained, it was announced in open Tribunal that they would continue to hear the case.
- When the hearing resumed in January 2001, the Respondent was in person. On the first day, he applied for an order that the Tribunal should refuse itself on the grounds of bias or the appearance of bias arising from the conduct of the Chairman and one of the lay members. At paragraph 20 of the Decision the Tribunal sets out the basis of this application.
"…..The applicant referred to several specific points, in particular that the chairman had pointed out to the tribunal he was aware of the geographic route from the Council's offices where the applicant worked to a school in Sandwell. The applicant said a remark had been made with regard to the length of a particular paragraph in his witness statement. The applicant considered that the chairman had made an unacceptable comment with regard to the review of the Council's legal service activities. The applicant said that in effect one of the lay members of the tribunal had suggested to Ms Gwinn an answer to a question. The applicant said that it was not proper for the tribunal to enquire whether or not senior members of the Council's legal department had been called to give explanations as to the conduct within that department to district judges, or to other members of the judiciary."
- In the following paragraphs the Tribunal sets out the steps taken after this application was made. Having again obtained confirmation that each member of the Tribunal, including himself, considered that neither he nor any other member had made up his mind on any matter and that each was happy to continue to hear the case, the decision was made to continue, the Tribunal recording its decision in paragraph 27 as follows:
"27 Accordingly, when the tribunal reconvened, the chairman explained that the hearing would continue. The reasons for this were that each member of the tribunal was satisfied that the tribunal hearing had been conducted properly and there was no bias by himself, or any other member of the tribunal. No decision had been taken with regard to any of the issues before the tribunal and indeed it was not possible to take that decision, because all the evidence had not been heard. The chairman explained that when he pointed out that he knew the route which was being referred to, he did not so to ensure that each of the parties before the tribunal was aware that he had special knowledge with regard to that route. None of the members of the tribunal could recollect the remark with regard to the length of a paragraph in the applicant's witness statement, although several of the statements before the tribunal were lengthy. The remark with regard to the review of the legal department was to the effect that the chairman was aware that such reviews took place. The questions which were asked of the witnesses by the members of the tribunal were raised as part of the tribunal's duty to ascertain what took place in respect of the incidents raised before it. The tribunal was satisfied beyond doubt, that it should continue with the hearing. It was the body appointed for that purpose. It could, and would, discharge its duty properly and without favour to any party."
- The principles to be applied when dealing with an allegation of bias have most recently been set out by the Court of Appeal in In re Medicaments and Related Classes of Goods (No.2)  ICR 564. In that case, which was heard after the Human Rights Act 1998 came into force, the Court of Appeal considered the approach to allegations of bias which was established by the House of Lords in R v Gough  AC 646 , but it did so in the light of decisions of the European Court of Human Rights. The Court of Appeal concluded:
"83 We would summarise the principles to be derived from this line of cases as follows. (1) If a judge is shown to have been influenced by actual bias, his decision must be set aside. (2) Where actual bias has not been established the personal impartiality of the judge is to be presumed. (3) The court then has to decide whether, or an objective appraisal, the material facts give rise to a legitimate fear that the judge might not have been impartial. If they do the decision of the judge must be set aside. (4) The material facts are not limited to those which were apparent to the applicant. They are those which are ascertained upon investigation by the court. (5) An important consideration in making an objective appraisal of the facts is the desirability that the public should remain confident in the administration of justice.
84 This approach comes close to that in R v Gough  AC 646. The difference is that, when the Strasbourg court considers whether the material circumstances give rise to a reasonable apprehension of bias, it makes it plain that it is applying an objective test to the circumstances, not passing judgment on the likelihood that the particular tribunal under review was in fact biased.
85 When the Strasbourg jurisdiction is taken into account we believe that a modest adjustment of the test in R v Gough is called for, which makes it plain that it is, in effect, no different from the test applied in most of the Commonwealth and in Scotland. The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased.
86 The material circumstances will include any explanation given by the judge under review as to his knowledge or appreciation of those circumstances. Where that explanation is accepted by the applicant for review it can be treated as accurate. Where it is accepted, it becomes one further matter to be considered from the viewpoint of the fair-minded observer. The court does not have to rule whether the explanation should be accepted or rejected. Rather it has to decide whether or not the fair-minded observer would consider that there was a real danger of bias notwithstanding the explanation advanced."
- The facts of that case were very different from the present but the test of whether or not the circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility or a real danger, the two being the same, that the tribunal was biased is equally applicable.
- Applying that test to the Respondent's allegations in his Statement, our conclusions are as follows. Firstly, in paragraphs 1 – 7 of his Statement the Respondent refers to the procedural aspects of the bias issue raised by his counsel in July 2000. The Tribunal dealt with what occurred in their Decision, in the paragraphs referred to above, and we consider that there is no criticism to be levelled at the Tribunal for the approach they took, once the issue was raised, or the decision they reached to continue to hear the case at that stage.
- The particular matters relied upon by the Respondent as demonstrating bias when he renewed his application in January 2001 are set out at paragraph 12 of his statement. There are 8 in number and we deal with each of them in turn.
(1) The Chairman's comment, on the Respondent giving evidence that he had taken a particular route to interview a witness, to the effect that he was familiar with the route taken and would be surprised if the Respondent had taken that route.
The Chairman explains that he had special knowledge of that route, having travelled on it regularly for many years, and that he felt it right to declare that knowledge to the parties. We see no indication of bias in this comment in the circumstances.
(2) The Chairman commented on the length of the Respondent's witness statement and the length of certain paragraphs contained in it.
The Chairman can remember no such remark and observes only that many of the statements in the case were lengthy. It is not alleged that the remark was made in a critical or pejorative way and we see no indication of bias in any such comment if indeed it was made.
(3) The Chairman made comments about the review of the Appellants' Legal Services Department, to the effect that he was familiar with such reviews and that not much weight could be attached to them.
The Chairman accepts that he indicated his familiarity with such reviews because that was the case and the parties should be made aware of it. He denies that he gave the impression that not much weight is to be attached to such reviews because such is not in fact his view. We are not persuaded that the Chairman did give this impression but, even if he did, we do not see any indication of bias against the Respondent arising from it.
(4) One of the lay members assisted the witness Ms. Gwinn by suggesting to her the answer that she had in fact had a quiet word with the Respondent about his files.
This is the matter referred to by the Tribunal at paragraph 15. The Chairman comments that the member was only seeking to clarify the witness's evidence and we see no indication of bias in what occurred.
The Chairman and then the lay members regularly referred to the fact that the District Judge had ordered a senior officer to appear and explain unless orders, suggesting that this was the result of the Respondent's handling of cases, which he refuted.
The Chairman accepts that he did ask Mr. Foote whether senior members of the legal department had been asked to attend before members of the judiciary, that he did so once and for clarification purposes only. We are not persuaded that there was an inappropriate emphasis on this issue or that there is any indication of bias on the Tribunal's part as a result of the clarification sought.
(6) During the evidence of one of the Respondent's witnesses, Stephen Lawrence, the tribunal was greatly amused by his statement that had he had to deal with more housing disrepair cases of the type handled by the Respondent he would have suffered a great deal more stress.
The Chairman denies any amusement and we are not persuaded that there was inappropriate amusement shown at this witness's evidence
(7) The Tribunal was similarly sympathetic to the evidence of Ms. Gwinn when she explained her frustration at going through the files and comments she had made on them.
The Tribunal findings on this evidence are set out at paragraphs 156 and 157 and we see no indication of bias in these findings.
(8) The Tribunal allowed the Appellants to introduce evidence into the case which had not been raised by them and which was prejudicial.
No details are given as to what this evidence was and the Respondent did not develop this point before us. We do not propose therefore to consider it further.
- Applying the test for bias set out above we therefore conclude that none of these comments, where we are satisfied they occurred, either individually or collectively, would lead a fair-minded and informed observer to conclude that there was a real danger that this Tribunal was biased. This ground of appeal against the Decision therefore fails.
- Appeals on this ground will only succeed where it is shown that no reasonable tribunal, properly directed, could have come to the decision which was reached. It is not our task to decide if we agree or disagree with the Tribunal's conclusions but, rather, to decide whether the Tribunal directed themselves correctly as to the law and arrived at their decision by correctly applying the law to the facts found. We note that in this case no Chairman's Notes of evidence have been requested at any stage.
- The Respondent's principal complaints are these. Firstly he contends that little reference is made in the Decision to the evidence of Mr. Pegler and Mr. Ahmed, called on his behalf, which shows that their evidence, helpful to the Respondent in several respects, was not taken into account by the Tribunal. However, the Tribunal points out at paragraphs 30 – 31 that they considered all of the evidence given, even though reference is not made to all of it in the Decision. Given the quantity of evidence and the extent of the disputes it would have been impractical to set out precise details of every conflict of evidence which arose. The facts set out are thus said to be those which can be set out within reasonable compass to enable the parties and others to know the facts upon which the decision of the Tribunal is based. In this task we consider the Tribunal to have succeeded. We are not persuaded that the failure to refer to the evidence of these witnesses indicates that the Tribunal did not take it into account in arriving at their findings of fact.
- Secondly the Respondent complains that the Tribunal failed to have regard to the common practice for members of staff who were late still to sign in as having arrived within the core working hours; and to the duty upon employers intending to impose sanctions such as suspension or dismissal for any offence to make that clear in advance. However, the context for the Respondent's suspension in July 1999 was the previous disciplinary proceedings against him in December 1998, when he was subject to sanctions for misuse of the flexi-time system. We do not accept that the omission by the Tribunal to refer to the Respondent's evidence about common practice or his employers'duty to warn him about suspension for falsifying time-sheets, given that he was subject to a written warning at the time, demonstrates that their decision was perverse.
- In his remaining complaints, the Respondent seeks to persuade us that the Tribunal erred in law "in its interpretation of the facts" in several respects. These are set out at paragraphs 12 –19 of his skeleton argument. We have considered all the points he makes but we are driven to the conclusion that they amount to no more than an attempt by him to re-argue the case before us and to disturb findings of fact which do not support his case that he was discriminated against on grounds of race and victimised.
- We consider that this Tribunal went to great lengths to set out in considerable detail their findings of fact in this case and that the Respondent has been unable to show us that findings were reached when there was no evidence to support them. Apart from the errors of law which we find to have occurred in respect of their decision on victimisation, the Tribunal directed themselves correctly as to the approach they should take, considered each and every allegation of discrimination made by the Respondent and set out fully their reasons for finding against him under each head of his claim. We are not persuaded that this Tribunal arrived at a perverse decision in this case and this cross-appeal must be dismissed.
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