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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Phoenix House Ltd v Stockman (VICTIMISATION DISCRIMINATION - Detriment - UNFAIR DISMISSAL) [2019] UKEAT 0284_17_0507 (5 July 2019) URL: https://www.bailii.org/uk/cases/UKEAT/2019/0284_17_0507.html Cite as: [2019] UKEAT 0284_17_0507, [2019] UKEAT 0058_18_0507, [2019] UKEAT 284_17_507 |
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At the Tribunal | |
Before
HIS HONOUR DAVID RICHARDSON
MR D G SMITH
DR G SMITH MBE
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APPELLANT |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
APPEAL & CROSS APPEAL
For the Appellant | MR CHRISTOPHER MILSOM (of Counsel) Instructed by: Trowers Hamlins LLP 3 Bunhill Row London EC1Y 8YZ |
For the Respondent | MRS TATIANA STOCKMAN (The Respondent in Person) |
SUMMARY
VICTIMISATION DISCRIMINATION Detriment
UNFAIR DISMISSAL Reinstatement/re-engagement
UNFAIR DISMISSAL - Compensation
The ET did not err in law in
(1) concluding that in one respect the Respondent had committed an act of victimisation and public interest disclosure detriment
(2) declining to order re-instatement or re-engagement for unfair dismissal
(3) its approach to the question whether and to what extent a reduction should be made under section 122(2) or section 123(1) of the Employment Rights Act 1996 where the Claimant had, without the knowledge of the Respondent, recorded a meeting.
HIS HONOUR DAVID RICHARDSON
Introduction
The Background Facts
The ET's Overall Reasons
Public Interest Disclosure Detriment and Victimisation
The ET's Reasons
"(i) the Claimant considered that she was being unlawfully harassed on the basis of unprofessional remarks made about her by Mr Lambis and other colleagues; (ii) the Claimant considered she was being unlawfully harassed on the basis of unfair treatment of her by Mr Lambis;(iii) there was no genuine reason for the restructure of the Finance Department; and (iv) the Respondent had infringed the Health and Safety Act by not protecting her from the alleged harassment.
"39. Ms Bond gave her account in her witness statement of why the letter was written (paragraph 74) and this account was not challenged in evidence by the Claimant. Ms Bond states: "As a result of the mediation failing I had to assume that the Claimant still had a clear distrust of senior management including the Chief Executive. In her meetings with me and the Chief Executive the Claimant had expressed opinions that suggested to me that she had no respect for her employer and she still completely believed that her grievance was well founded . I decided on this course because I had serious doubts about the reality of the Claimant returning to the workplace". The meetings with the Chief Executive at this time must refer to the grievance and disciplinary appeals."
"36. The Tribunal concludes with respect to the Claimant's protected disclosure claim that to invite the Claimant to a meeting where her future employment would be considered is, on an objective view, a detriment and it was "materially influenced" (by an extent that was more than minor or trivial) because the Claimant had made a protected act of unfair treatment through her written grievance.
37. The arrangement of the meeting and the invite to it was a decision made by Ms Bond. The Tribunal concludes that she did not make this decision simply on the basis that a grievance had been made or solely because of an assumed distrust of management. The decision was made because of the content of the grievance. The Tribunal does not consider this conclusion to be inconsistent with paragraph 309 above. As written: "and she completely believed that her grievance was well-founded". The content of that grievance amounted to a protected disclosure as found by the Tribunal. It is a matter which quite clearly influenced Ms Bond's decision in a material way, certainly in a way that was more than minor or trivial."
"It is not uncommon in Tribunal discrimination claims for an employer to lose patience during a process and commit an act of unlawful victimisation even though the surrounding events did not amount to discrimination."
Submissions
Discussion and Conclusions
"Furthermore, as Underhill J pointed out in Martin v Devonshires Solicitors [2011] ICR 352, para 39, it is important not to make too much of the role of the burden of proof provisions. They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other. That was the position that the tribunal found itself in in this case."
"In such cases it is neither artificial nor contrary to the policy of the anti-victimisation provisions for the employer to say "I am taking action against you not because you have complained of discrimination but because of the way in which you did it". Indeed, it would be extraordinary if those provisions gave employees absolute immunity in respect of anything said or done in the context of a protected complaint Of course, such a line of argument is capable of abuse. Employees who bring complaints often do so in ways that are, viewed objectively, unreasonable. It would certainly be contrary to the policy of the anti-victimisation provisions if employers were able to take steps against employees simply because in making a complaint they had say, used intemperate language or made inaccurate statements. An employer who purports to object to "ordinary" unreasonable behaviour of that kind should be treated as objecting to the complaint itself, and we would expect tribunals to be slow to recognise a distinction between the complaint and the way it is made save in clear cases. But the fact that the distinction may be illegitimately advanced made in some cases does not mean that it is wrong in principle."
Re-Instatement and Re-Engagement
The ET's Reasons
"13. The Claimant's claim against the Respondent was not a stand-alone unfair dismissal complaint. It was a complaint that was made with significant various claims of discrimination and protected interest disclosure in respect of which the majority of those complaints were not well-founded and not made out on the evidence.
14. The Tribunal accepts [the] Respondent's evidence, as set out in the witness statement of Mr Lambis, Director of Finance, at paragraphs 31 and 32 regarding the effects of those complaints. The complaints have clearly had a significant impact and the relationship between the Claimant and Respondent has significantly soured. In this respect the Tribunal refers to the Court of Appeal authority of Coleman and Stephenson v Magnet Joinery Ltd [1974] IRLR 343.
15. Having considered all the circumstances and the relevant authorities, the Tribunal concludes that it is not practicable to re-instate the Claimant into the Senior Payroll Officer post generally, made even less practicable given that the position reports into Mr Lambis as Director of Finance.
16. In addition, as set out below, the Tribunal has made a finding that the Claimant contributed to her dismissal and taking account of that matter and the surrounding circumstances, the Tribunal also concludes that it would not be just and equitable to reinstate the Claimant as argued.
17. By way of completeness, although not expressly argued by the Claimant in submissions, for the same reasons expressed above the Tribunal also concludes not to exercise its discretion to make a re-engagement order. No suggestion has been made of the alternative position to which the Claimant is seeking to be re-engaged and it is almost inevitable that it would entail a financial element and report to Mr Lambis."
Submissions
Discussion and Conclusions
" (1) questions of practicability under section 116 are primarily for the ET and are likely to be difficult to challenge on appeal (see Clancy v Cannock Chase Technical College [2001] IRLR 331 EAT); and (2) ETs have a wide discretion in determining whether or not to order reinstatement or re-engagement; it is essentially a question of fact (see Central & North West London NHS Foundation Trust v Abimbola UKEAT/0542/08, at paragraph 15)."
The Covert Recording Issue
The ET's Reasons
"43. The Tribunal concludes that this matter, whether more properly addressed under Devis, Polkey, or pure statutory "just and equitable" principles, is one of assessing the chance of the Claimant being dismissed fairly had the Respondent known about the Claimant's conduct at any time before her actual dismissal and then adjusting any amount of the Compensatory Award in line with that conclusion as is just and equitable ..
45. The Tribunal concludes that when weighing all the circumstances and assessing whether or not the Respondent would have fairly dismissed the Claimant had it known of the recordings, it is just and equitable to reduce the Compensatory award by 10% to fully reflect the circumstances relating to the covert recordings. It is possible that once the reasonably available facts were known, the Respondent may objectively and fairly have considered this to be a misconduct matter which then fairly led to dismissal. The Tribunal considers in the circumstances that this is a low percentage chance.
46. The Tribunal further concludes that given the terms of the statutory Basic Award contribution provisions it is just and equitable to further increase the Basic Award reduction by the same amount to a total of 30%."
Submissions
"The Tribunal takes a dim view of covert recordings of confidential discussions. Such action is a one way process usually with the intention of securing for the benefit of the person making the recordings an unguarded remark by those being covertly recorded. An obvious advantage is that the person making the recording can steer the process to elicit a comment from the participant/s without any chance that they too may be similarly vulnerable."
Discussion and Conclusions
"(2). Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal may reduce or further reduce that amount accordingly."
" the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer."
"24. A "Polkey deduction" has these particular features. First, the assessment of it is predictive: could the employer fairly have dismissed and, if so, what were the chances that the employer would have done so? The chances may be at the extreme (certainty that it would have dismissed, or certainty it would not) though more usually will fall somewhere on a spectrum between these two extremes. This is to recognise the uncertainties. A Tribunal is not called upon to decide the question on balance. It is not answering the question what it would have done if it were the employer: it is assessing the chances of what another person (the actual employer) would have done. Although Ms Darwin at one point in her submissions submitted the question was what a hypothetical fair employer would have done, she accepted on reflection this was not the test: The Tribunal has to consider not a hypothetical fair employer, but has to assess the actions of the employer who is before the Tribunal, on the assumption that the employer would this time have acted fairly though it did not do so beforehand."