APPEARANCES
| For the Appellants |
MR A KORN
(of Counsel)
Instructed By:
Messrs DLA
Solicitors
Princes Exchange
Princes Square
Leeds LS1 4BY |
| |
|
MR JUSTICE WALL:
- This is an appeal by (1) the Secretary of State for Work and Pensions, (2) Paul Armstrong and (3) Diana Towler, the Appellants (the Respondents in the Tribunal below) against the unanimous decision of the Employment Tribunal held at Leeds on various dates in July 2001, resulting in the finding that the Appellants had discriminated against Ms Burke, the Respondent (the Applicant in the Tribunal below), by victimising her contrary to Sections 2 and 4 of the Race Relations Act 1996.
- The Tribunal adjourned the remedy hearing to a date to be fixed. Ms Burke was employed by the First Appellant as a team leader and deputy manager at its South Leeds Jobcentre, that employment starting in March 1992.
- For present purposes it us sufficient for us to begin with recording, as the Tribunal did, that Ms Burke had presented an earlier Originating Application on 20 February 2000 alleging race and sex discrimination. That claim was settled on 7 August 2000, following conciliation by ACAS, and the parties signed an ACAS form COT3 to which was attached a schedule setting out the terms of the settlement. We have most helpfully today been shown a copy of that settlement by Mr Korn, who appears for the Appellants, and we think it necessary to refer to it in some detail:
"1.1 The terms set out below represent full and final settlement of all claims the Applicant makes against the above named Respondents in the proceedings brought in Leeds Employment Tribunal under Case Number [given] and of all claims of discrimination arising under the Sex Discrimination Act and/or the Race Relations Act which the Applicant has made or may make against the said Respondents existing at the date of her signing this document (and whether notified to the First Respondent or not)."
For present purposes I interpolate that it is sufficient, I think, to say that in this document the term "Appellants", apart from embracing employees of the Secretary of State for Education and Employment, also included the Secretary of State himself, as also is the case in today's application.
"1.2 Within 28 days of the date of the Applicant signing this document the First Respondent shall pay to the Applicant a lump sum payment of £13,000 (gross).
1.3 The financial terms of this settlement and the discussions leading to it are to be confidential to the parties and their advisors (except as required by any statutory authority or court of law).
1.4 The First Respondent [that is the Secretary of State] agrees, after consultation with the Applicant, to publish an article by the Regional Director in an internal publication identifying the lessons learnt from this case (referring to the Applicant by name), reminding all its employees of their obligations in relation to equal opportunities, reminding its employees of the Employment Service's equal opportunity policies and encouraging employees to bring complaints of unfavourable treatment on grounds of sex, race or disability under its procedures.
1.5 Within 28 days of the date of the Applicant signing this document the First Respondent will issue her with a written apology in terms to be agreed.
1.6 The First Respondent will offer the Applicant career counselling in relation to other opportunities within the Employment Service.
1.7 Within 8 weeks of the date of the Applicant signing this document the Applicant is to be advised of other opportunities at same grade and to be considered for transfer to another office if she so chooses.
1.8 The First Respondent will give to the Applicant and her trade union representatives a letter confirming the matters set out in the schedule attached hereto."
- The Schedule sets out the agreement that the Employment Service will issue a letter to the Respondent and the Trade Union confirming a number of matters, paragraph 1.1, policies and procedures dealing with complaints from employers of sex, race and disability discrimination and so on. I do not think it necessary for the purposes of this judgment to read any further from that document.
- Ms Burke's complaints to the Tribunal below in the instant case totals six. They were firstly, that the First Appellant had not finished and published the article by the Regional Director. Secondly, she complained that the career counselling had been limited and not of the quality contemplated by the parties to the agreement. Thirdly, she complained of the First Appellant's continuing failure to implement its policy about filling vacated posts. Fourthly, she complained specifically of victimisation by the Third Appellant in her management of the Respondent. Fifthly, she complained about the First Appellant's treatment of her in an internal investigation into the allegations made by her in the first Originating Application. She said that members of the management team seemed more interested in organising a case to bring against her than getting to the bottom of the original complaints. Sixthly, she complained that the Second Appellant had victimised her by denying her the opportunity to move to another part of the Employment Service because he did not want her to work with a manager called Janet Caton. Ms Caton has supported the Respondent in her Originating Application and had herself brought proceedings against the First Appellant's predecessor alleging victimisation.
- The Tribunal heard evidence including, of course, evidence from the Respondent herself and two other witnesses. They heard evidence from both the Second and Third Appellants as well as the manager responsible for the Jobcentre network in the outer city area of the Leeds district.
- The Tribunal then went on to make a number of findings of fact. These are set out in some detail in the Reasons and we have today, with the assistance of Mr Korn, looked at a number of them. We acknowledge that the Tribunal could, perhaps, have put the facts together in a somewhat more coherent fashion and that the Reasons in this respect could have been, perhaps, structured in a more organised way. Nonetheless, we are quite clear that the Tribunal has made specific findings of fact and the question that we have to decide is whether or not the conclusions which they have reached are warranted by the findings of fact they have made as well as whether or not, as a matter of law, the facts found constitute detriment within the meaning of the Act.
- As I indicated, Mr Korn, who has been extremely helpful and who has produced a very detailed skeleton argument, has gone in some detail into the various incidents in support of his submission that the conclusions made by the Tribunal are not warranted by the underlying findings of fact. We do not think it either necessary or appropriate in this application to trawl through the reasons given by the Tribunal in fine detail. It will, we think, be sufficient to look at the conclusions and to see whether they are in overall terms warranted by the findings made. In paragraphs 34 and 35 of the Reasons the Tribunal deals with the law in Section 2 of the Race Relations Act 1976 and the case of Nagarajan v London Regional Transport [1999] IRLR 572 in the House of Lords. No complaint we think is made by Mr Korn of the direction which the Tribunal gave itself in relation to the law or in its reference to the case of King v Great Britain China Centre [1991] 1 IRLR 513.
- Turning to the findings, the Tribunal begins in paragraph 37 by dealing firstly with the question of the article by the Regional Director and they find that, whilst it took a long time the phrase they use is:
"Whilst we acknowledge that it took a long time, we are satisfied that the length of time was the product of the process by which the article came to be finalised".
Clearly, there can be no appeal against that conclusion.
- Secondly, they reject the Respondent's claim in relation to the career counselling. They make a finding that the Second Appellant engaged in a meaningful way with the Respondent on 4 October and that he followed this up in discussion by exploring the possibility of secondment to the Prince's Trust. In the event they say:
"The applicant saw it as an attempt by the respondents to get rid of her. Whilst we do not accept her view as representing the truth, we understand her view, given that by then she had every reason to have lost confidence in the ability of the respondents to treat her fairly."
So the first two complaints by the Respondent were rejected. The Tribunal then goes on in paragraph 39 with this paragraph, which I shall read in full:
"39 There is no doubt that the applicant had done a protected act in bringing her claims of race and sex discrimination against the first respondent and others in the earlier proceedings. We find that the applicant was less favourably treated by the second respondent in two ways. First, he did so by insisting that the internal investigation into the applicant's earlier allegations should proceed after the settlement in August 2000. Another person who had, for example, brought proceedings against the first respondent for personal injury would not have been required to take part in an investigation into the circumstances of the accident after the settlement. Such investigation would have preceded the settlement. The agreement between the parties was expressed to be in full and final settlement of all the applicant's claims in those proceedings. We have no doubt that the respondents should not have undertaken that investigation. The applicant was entitled to believe that all parties were drawing a line under those matters so that they could all look forward and get on with their jobs. We accept that proceeding with the investigation was against the applicant's better judgment. She was persuaded to co-operate. The consequence was that the first respondent was able to vindicate its employees in respect of the matters in the first originating application. They operated to the detriment of the applicant."
- Mr Korn attacks this paragraph and these findings, particularly in relation to the question of whether or not there was a detriment. He submitted that it was perfectly reasonable for the First Appellant to re-open the investigation, notwithstanding the previous settlement. The allegations, he argued, had not been withdrawn by the Respondent and needed to be dealt with. He submitted that in these circumstances it was, at the very lowest, arguable that the Respondent had suffered no detriment by the investigation being reopened.
- With respect, we are unable to agree with Mr Korn on this point. The agreement was in full and final settlement of all claims. The Tribunal in these circumstances was entitled to find, as it did, that the Respondent was entitled to believe that the parties were drawing a line under those matters so they could all look forward and get on with their jobs. The Tribunal, in our view, was entitled to find, as it did, that the Appellants should not have undertaken the investigation.
- In those circumstances Mr Korn's attack on this paragraph in our submission would not stand any reasonable prospect of success before the full Tribunal. Paragraphs 40 to 42 I will read continuously, as they represent the principal reasoning of the Tribunal in relation to other issues:
"40 We find that the third respondent treated the applicant less favourably in the way she managed her. She would have treated a different deputy manager in a more inclusive way. She would not have sought to build a case based on conduct and capability against a different deputy manager. Since she has sought unsuccessfully to justify rather than explain her treatment of the applicant, we have no difficulty in inferring that the reason for the third respondent's treatment of the applicant was that she had brought proceedings against the first respondent and Mike Davison.
41 We find also that the second respondent treated the applicant less favourably by denying her access to the post with Training Consultancy Services. He used her friendship with Janet Caton as an excuse for discriminating against the applicant. We think that the inference that he discriminated because of the earlier proceedings and Janet Caton's support of the applicant in those proceedings is overwhelming.
42 As for the investigation, the second respondent and other senior managers used that as an opportunity to investigate current matters which were not the subject of the applicant's earlier complaints. She was seen as a troublemaker and they sought to build a case against her. By doing so, the applicant was subjected to a further detriment. We believe that the investigation was carried on in order to seek to vindicate Employment Service staff. Again we have no difficulty in inferring that the decisions to proceed with the investigation and to ignore the applicant's pleas to stop it were made principally because she had raised allegations of discrimination and presented an originating application. The e-mail remark about a reprisal again indicated an institutional view of the applicant as a troublemaker both in respect of her first originating application and in respect of her behaviour in the South Leeds office. Their view of the latter was informed by the view of the former."
- In our judgment there was material upon which the Employment Tribunal could reach those, albeit broad, conclusions. The material is contained in the various incidents which the Tribunal analyses earlier in the Reasons. As I indicated earlier, we mean no disrespect to Mr Korn when we say we do not propose to trawl through those. It may, however, be appropriate to give one example.
- In relation to the question of access to a post with training consultancy services and the Second Appellant using the Respondent's friendship with Janet Caton as an excuse for discrimination, the Tribunal relates in some detail the incident in question and recalls an allegation that the Second Appellant said:
"I don't want you two working together, not after what happened last time."
- The Tribunal accepted the evidence of the Respondent in this respect that that remark was made and it was corroborated by a third party. In our view that remark could only properly relate to the previous events and the previous claim and the Tribunal was entirely entitled to draw the inference that it did so and was evidence of victimisation. That is one example. In our judgment the other examples cited by the Tribunal in relation to which its findings are made are of themselves sufficient to justify the conclusions reached.
- We repeat our view, in a case of this nature, that it would not be appropriate either for the EAT hearing a preliminary application or, indeed, for the full Employment Appeal Tribunal to trawl through the Reasons line by line and incident by incident. No doubt small points of inaccuracy or omission can be and would be picked up in that exercise. We are, however, of the clear view that in broad terms these were conclusions which the Tribunal was entitled to reach and in those circumstances that the points raised by Mr Korn in his Notice of Appeal, whilst elegant and extensive, do not undermine the substantial thrust that this is essentially a case which can be decided, and should be decided, on its facts. The Tribunal applied the correct law to those facts, reached a conclusion with which this Tribunal could not properly interfere and, therefore, there is no point in this case going to a full hearing.
- The appeal will, accordingly, be dismissed at this stage.
