APPEARANCES
| For the Appellant |
MR MARK AFEEVA
(of Counsel)
Instructed by:
Messrs Imran Khan & Partners Solicitors
47 Theobolds Road
London
WC1X 8SP |
| For the Respondent |
MISS SARAH – JANE DAVIES
(of Counsel)
Instructed by:
The Treasury Solicitor (Employment Team)
Queen Anne's Chambers
28 Broadway
London
SW1H 9JS |
SUMMARY
Race discrimination in respect of payment while off work sick, and upon a phased return to work. It is open to a Tribunal to disbelieve a manager and find the Respondent liable for one act of discrimination and yet find him/ it not responsible for a second alleged act. Employment Tribunal decision upheld.
Directions given for remedy hearing. Settlement/ conciliation encouraged.
HIS HONOUR JUDGE McMULLEN QC
- This case is about direct race discrimination. The judgment represents the views of all three members who pre-read the relevant papers. We will refer to the parties as Applicant and Respondent.
Introduction
- It is an appeal by the Applicant in those proceedings against a reserved decision of an Employment Tribunal sitting over three days at London (South) Chairman Mr R D Salter registered with Extended Reasons on 15 April 2004. The Applicant and the Respondent were represented there and here by Mr Mark Afeeva and Miss Sarah-Jane Davies of Counsel, respectively. The Applicant claimed race discrimination and the Respondent denied the claim.
The issues
- The essential issues were defined by the Employment Tribunal as follows:
"4. "whether the Applicant was directly discriminated against on the grounds of her race by the Respondent's refusal to extend the Applicant's full pay beyond 16 November 2001 and/ or the Applicant being told on 21 November 2001 that she would get full pay for hours worked and pension pay for those not worked".
The Tribunal decided as follows in terms which will become important:
"The unanimous decision of the Tribunal is that one of the Applicant's complaints of unlawful direct race discrimination succeeds and the other is dismissed. Application is adjourned to a remedies hearing."
- The Applicant appeals against that decision. Directions sending the appeal to a full hearing were given in Chambers by Beatson J and later by me allowing an application by the Applicant to adduce new evidence having heard representations from both parties.
The legislation
- The relevant provisions of the legislation were not in dispute and were summarised without dissent by the Employment Tribunal following careful written and oral arguments by Counsel:
"8. Direct race discrimination is defined by s.1 (1 )(a) Race Relations Act 1976; " A person discriminates against another in any circumstances relevant to the purposes of any provision of this Act if on racial grounds he treats that other less favourably than he treats or would treat other persons"
9. It is unlawful by s. 4(2) for a person in the case of a person employed by him at an establishment in Great Britain to discriminate against that employee by dismissing her or subjecting her to any other detriment.
10. Where a complainant proves facts from which the Tribunal could conclude in the absence of an adequate explanation that the Respondent has committed such an act of discrimination the Tribunal shall uphold the complaint unless the Respondent proves that it did not commit or, as the case may be, is not to be treated as having committed that act (s. 54A)
11. A comparison of the case of a person of a particular racial group with that of a person not of that group must be such that the relevant circumstances in the one case are the same or not materially different in the other ... s. 3 (4)
12. In relation to the burden of proof the Tribunal has followed the guidelines given by the EAT in the case of Barton -v- Investec Henderson Crosthwaite Securities Ltd [2003] ICR 1205 and the general principles referred to in the EA T decision in Law Society -v- Bahl [2003] IRLR 640."
- In addition to those authorities it is clear that there have been slight adjustments to the approach set out in Barton see Chamberlin Solicitors v Emokpae [2004] IRLR 592 and the judgment of the Court of Appeal upholding the EAT in Law Society v Bahl [2004] IRLR 799. As is clear the Tribunal directed itself by reference to the relevant law.
The facts
- The Respondent runs the Immigration and Nationality Directorate which employs so far as were concerned 5,500 staff. It is within this division that the events to which our case refers will relate. The Tribunal made the following findings:
"6.
(i) The Applicant (a woman of Jamaican origins) was employed by the Home Office from 10 May 1982. She remains an employee of the Home Office."
(ix) The Applicant joined the Home Office on 10 May 1982 as a Clerical Assistant. She was working at Lunar House Croydon in the Immigration Dept. In June 1988 she was promoted to Administrative Officer and moved to the Public Enquiry Office where she worked for eleven years. In 1999 while on maternity leave she successfully applied for the post of Immigration Officer and Executive Officer. In or about December 1999 she moved to Gatwick Airport South Terminal.
(x) From September 2000 to April 2002 Ian Baxter was head of two of the three operational personnel teams managing some 75 staff and responsible for some 5,500 staff at the Immigration and Nationality Directorate (IND). Since April 2002 he had been the head of a team whose main functions were dealing with internal job selections and internal investigations managing some ten staff and looking after approximately 14,000 staff working at the IND.
(xii) In March 2000 the .Applicant made a complaint that she was harassed by Mr T. Gormally, a Chief Immigration Officer at Gatwick Airport South Terminal. On 10 October 2000 Janice Mather, the Investigating Officer, published her report. A copy of the report was sent by the Head of Personnel to Mr. Baxter with a request for draft letters to be prepared for Mr. Gormally and the Applicant notifying them of the outcome. The report which ran to five pages contained a reference to the fact that the Applicant was of Jamaican background.
(xiv) The Applicant continued to work at Gatwick South Terminal. Mr. Gormally remained a Chief Immigration Officer there. The Applicant went on sick leave on 5 March 2001. She was suffering from an "adjustment disorder". David Wood, consultant psychiatrist at the Priory Hospital, later reported that the Applicant told him that she was expected to continue working closely with Mr. Gormally after he had been "seen as guilty". She developed physical and mental symptoms of the stress. During the early part of 2001 she continued working but. became increasingly distressed. She became involved in a complicated immigration matter. Her mental health broke down. She was advised to go home in March 2001 after which she saw her general practitioner.
(xv) After Mr. Gormally's appeal was unsuccessful, disciplinary charges were brought against him. The outcome of the disciplinary charge was set out in memorandum in September 2001 a copy which was passed to Mr. Baxter. The memorandum referred to remarks that had been made by Mr. Gormally that he considered were used freely in the Caribbean and that he did not consider to be derogatory. He expressed sorrow that the Applicant had been offended. He was reprimanded.
- The background to the Applicant's terms and conditions includes a number of regulations relating to her entitlement to sick leave. The Tribunal found as follows:
"6.
(ii) A policy document issued by the Respondent entitled "Sick Leave and Pay during Sick Absences including Accidents, Incidents, Violence to Staff and other Injuries" ('the policy') dealt with arrangements for the payment of staff during sickness. Para 7. 31 stated that "provided that there is a reasonable prospect of eventual recovery , your sick leave allowances as a full-time member of staff are as follows:-
(a) full pay for not more than 6 months in period of 12 months and
(b) thereafter half pay subject to a maximum 12 months sick leave in any period of 4 years or less"
(iii) When staff have exhausted sick leave on full and half pay, they may be allowed pay during further sick leave at a rate not exceeding the amount of pension for which they would have been qualified if they had retired on ill health grounds ('pension rate') or half pay if that is less (paragraph 7.33 ibid)."
- The approach of the Respondent to sick leave includes sympathetic understanding of the need to phase people back in after a lengthy period off sick. Not strictly relevant to these proceedings is the treatment it accords to those who have been forced to take sick leave by reason of assault but the Tribunal determined that issue and it arises before us as to whether it was correct or not.
- The Applicant completed her probation successfully at a time when she was off sick as a result of the events in this case. Her sick leave had been extended by reason of the over long investigation into the wrongdoing of Mr Gormally which led to reprimand. She ran out of her full sick pay on 5 September 2001 and hoped for some sympathetic treatment. The relevant manager Mr Baxter (who has been referred to by the Tribunal in our extracted citation above) made a number of decisions in her case. He decided that she should be allowed to continue on full sick pay until 16 November 2001. The basis of this was that there appeared to be a discretion in such circumstances as this case where there was a long period of investigation not the fault of the person seeking sick pay and so he agreed to do that.
- The decision to extend the sick pay until 16 November was taken Mr Baxter on 17 October 2001. It was indicated that by 16 November she would ready to come back to work and fit to do so and it was said to be his thinking that that was why that date was chosen. Following that decision a number of meetings was held between the Applicant and the officers of the Respondent when it was noted the Applicant appeared confident about returning to the environment at Gatwick South Terminal which she had left some time earlier. She was sent a memorandum and it was noted by the Respondent that the Applicant was ready to work but needed to be phased in. A proposal for such a phased return was organised so that she would return working 4 hours Monday to Wednesday for three months. The Applicant noted that she wished to hear from the Respondent about the pay arrangements. She wrote to Mr Baxter in a letter which is important dated 20 November in the following terms:
"I wish to inform you that on the advice of my doctor on a possible phase (sic) return to work. I will be returning to Gatwick South Terminal on Monday 26 November 2001, but the idea is that this is a hostile environment because of the way I am being treated. This phase return to work is only under the strict understanding that it is on full pay, that I remain under the care of my doctor. I expect a review after three months phase return to work once full pay is completed."
- The matter had also been taken up with her union representative who had stated on 21 November that it was unacceptable that the Applicant should receive full pay only for the hours she worked and then half pay for the rest. She ought to assume full pay for the whole of the hours as though she had worked them. The Applicant did not return on 26 November and never has. There was the outstanding dispute about what she would be paid. By 28 November the relevant manager Mr Adcock had made clear to the Applicant that as far as her pay was concerned, during her phased return to work she would be paid at pension rate for the hours not worked. If she could not return to work, she would be paid at pension rate until she could. The Applicant was still unhappy with her situation in December and January and her union representative indicated on 7 January 2002 that the Applicant was prepared to go back but was not willing to do so unless she was given full pay. Although not immediately, the Applicant received in due course a lump sum representing payment of pension rate until August 2002.
- The Applicant claimed that the two decisions in her case where taken against her on grounds of race. Two comparators were held up. They are actual comparators: Deborah Fearn and Sonia Hatfield. Both are white employees. They both made complaints in June 2000 alleging discrimination and victimisation at the hands of a more senior male officer. They too had not returned work; they too became unwell and in various ways activated proceedings against the Respondent.
- Mrs Fearn has appeared today at the EAT because a good deal of the material which has been put before us following the order that the admission of new evidence could be adduced comes from her personal file and it is clear that she consents to this material being used in this way. She was the subject of a compromise agreement which we have seen and that was found by Counsel on behalf of both parties, not Counsel here today, on 9 September 2001. One of its provisions was that Mrs Fearn should continue to receive full pay during a phased return to work. She returned on 11 March 2002 and worked reduced hours on full pay and then she became ill.
- Turning to Sonia Hatfield, she was notified that her compliant against the senior officer had been upheld but no disciplinary action was to be taken. She presented an Originating Application to the Employment Tribunal. In May 2001 she became ill. Her Originating Application was dismissed. In August 2001 she withdrew a claim of unfair dismissal. Her sick pay was reduced to half salary after six months. Her union representative sought that she be treated in the same as Debbie Fearn, that is she was asking to receive full pay for the period she was off work on sickness absence. The two women had made similar complaints and this was made known to the relevant officer Sarah Young. Their complaints were the same, they concerned the same officer, both had been removed from their posts and they both had periods of sick leave. Legal advice was taken by Ms Young and in due course Ms Hatfield's claim was acceded to so that she would receive full pay during her period of sickness.
- The central issues for the Tribunal were whether there was unlawful action taken by Mr Baxter for whom the Respondent would be responsible by the two decisions which he made. The Tribunal decided as we have indicated that the Applicant's complaint in respect of the first succeeded and the second failed. The Tribunal divided its attention precisely according to the way in which the issues had been presented to it making a fully reasoned decision, first in respect of the complaints that full pay had not been paid on sick leave and secondly in respect of the payment arrangements for the phased return work. Dealing with the former the Tribunal decided that the Applicant had made out a prima facie case of race discrimination and called for an explanation from the Respondent which was given by Mr Baxter. Mr Baxter was held not to be credible.
- The Tribunal was not satisfied by the explanation which he gave. The Respondent having failed to produce cogent evidence (as that term is now explained in Chamberlin see above) Tribunal upheld the Applicant's claim. It said as follows:
"The Tribunal has no alternative but to find that that the decision not to extend her sick leave on full pay until she was well enough to return to work on the 26 November 2002 was an act of unlawful discrimination on the ground of race."
- Turning to the second issue, the Tribunal decided again that the principal material came from Mr Baxter. It noted that its task was as follows:
"(11) The Tribunal considered the explanation given by Mr Baxter. He had followed the rule and dealt with the situation strictly in accordance with the rule. He did not consider that he had any discretion in the matter. The Tribunal has tried to get inside his mind and is satisfied that he simply kept to the rule and the racial origins of the Applicant played no part in his decision. He has given the Tribunal cogent reasons for his decision…."
That is a vernacular expression of the approach required to be taken following the speech of Lord Nicholls in Nagarajan v LRT [1999] ICR 877 as developed again by Lord Nicholls in Chief Constable v Khan [2001] ICR 1065 para 29 which is that when a decision is to be made by an Employment Tribunal which is based upon a finding as to what the grounds were or the reason was for action being taken, it is necessary to examine the mental processes of the relevant decision maker.
- The Tribunal decided that the Applicant had indeed been treated less favourably than both Debbie Fearn and Sonia Hatfield in respect of the phased return to work of all three of them. Thus, following that more generous treatment of white workers, an explanation was to be sought from Mr Baxter. He contended that he did not know that a different arrangement had been made for Debbie Fearn and in any event the arrangement in respect of Sonia Hatfield was made after the relevant decision in the Applicant's case. It was contended by Mr Baxter that he had followed the rule in the phased return to work procedures. The rule is a shorthand way of describing what the officer McAlister described as directions and the underlining and boldening of the various passages to which he referred.
- The Tribunal's decision paid attention to the fact that it did not matter for the purposes of the Applicant succeeding, that the decisions were taken by different officers. That is a correct direction. It considered the explanation given by Mr Baxter and held that he had indeed followed and dealt with the situation strictly in accordance with it. According to that rule, Mr Baxter believed that he had no discretion at all. The Tribunal decided that the burden of proof plainly being transferred, the Respondent had discharged it by cogent evidence and cogent reasons for Mr Baxter's decision.
The Applicant' submissions
- In addition to those facts, following the new material which was adduced before us it can be seen that Mr Baxter was indeed involved prior to the Decision in the Applicant's case with the handling of Ms Fearn's case. The paper trail put before us, which is very carefully analysed by the Applicant's solicitors, indicates Mr Baxter's involvement at various stages in Ms Fearn's case. The contention is that he was involved in knowledge of the precise terms upon which the compromise agreement was accepted.
- Further, it is contended that the Applicant was not precluded by the Tribunal's decision to split its decision-making into two. The Tribunal had failed to read across from its first substantial criticism of Mr Baxter into its second decision. Had it done so it would plainly have rejected Mr Baxter's explanation as being cogent. There was nothing inconsistent in the Applicant's seeking to advance the data in respect of the first decision in her favour and also challenging the decision which went against her.
- The Tribunal failed to recognise the damage it had done to Mr Baxter by its first decision when it came to consider its second. It was unrealistic, as Mr Afeeva put it, to suggest that Mr Baxter had no knowledge of the compromise agreement in Ms Fearn's case. Relying upon the judgment of Sedley LJ in Anya v University of Oxford [2001] IRLR 377 paragraph 11, it was correct to look before and after the relevant event in order to determine whether race discrimination played a part in the decision. Reliance is also placed on what Sedley LJ said about the appreaciation of a witness at paragraph 23:
"It is precisely because a witness who by himself comes across as essentially truthful may be shown by documentary evidence or by inconsistency to be less reliable than he seems that the totality of the evidence in a case like this has to be evaluated."
- That is put by Mr Afeeva as a requirement to adopt a holistic approach, a phrase which we found entirely appropriate and helpful. In other words, in our case both the first and the second decisions must be read together. A Tribunal must stand back and look at the decision making in respect of both those before it makes its final conclusion. It was contended that the judgment in Harrod v Ministry of Defence [1981] ICR 8 which precludes the recipient in a successful decision challenging it on appeal did not apply as the approach to the final disposal of the proceedings differed. The submission Mr Afeeva made last was that alternative options were available to avoid the horror of having to reinvestigate in 2005 the mind Mr Baxter as it was in 2001.
The Respondent's submissions
- On behalf of the Respondent it was contended that the attack on the second decision had to be based upon perversity for which threshold is high see Yeboah v Crofton [2002] IRLR 634. The Tribunal had directed and applied itself correctly in accordance with Barton (above). The chain of causation had been broken by the Applicant's decision to return to work. The Tribunal had paid attention to the evidence which had been put before it. It was not inconsistent of it to make different decisions as required by the way in which the two different issues had been put to it. Mr Baxter was not responsible for the decision in Ms Hatfield's case. In respect of Ms Fearn's case based upon the new evidence, no doubt was cast upon the evidence which he gave to the Tribunal in both his first and second witness statements upon which he was cross-examined. There is no connection from this trail to a finding that Mr Baxter knew the terms of the compromise agreement.
- It is contended that the judgment in Harrod precludes the Applicant raising any complaints about the first decision since it is in her favour. What remains is for a remedy hearing to take place to determine the loss. Again a number of options was put for disposal of this matter if we were in favour of the Applicant which as will become clear is unnecessary.
The legal principles
- The legal principles appear to us to emerge from those very authorities citied without disapproval in the Tribunal's reasons. In addition to those we accept the contention made by the Respondent that our approach is informed by the judgment of the EAT in Harrod. It is not open to the recipient of a favourable award to challenge the reasons behind it. This case is not over since there will be a remedies hearing, but it is over in respect of liability and thus, applying the judgment in Harrod, it would not be open to the Applicant to challenge the first decision. We accept also that the bar is raised high in front of those who seek to overturn a decision on the ground of perversity: see Yeboah v Crofton - an overwhelming case has to be made out. We are also acutely aware of the importance in a highly fact sensitive area such as race discrimination of findings being made in clear terms by a Tribunal on primary facts from which inferences may be drawn. We are also aware, although it has not been raised in this case, of the importance to be given to the change in the burden of proof in section 54A from 19 July 2003.
Conclusions
- In our judgment the Respondent's submissions are correct. We accept the contention that it is not open to the Applicant on appeal to challenge the first decision in her favour. This is an important principle. It must not be forgotten that throughout the course of a long procedural history (which we have not outlined) the Applicant has been waiting for a decision in her favour which she achieved by this judgment. Not only was the substance of her complaint against her superior officer upheld, and the officer reprimanded, but so also was her complaint that the way in which her sick pay had been handled was on racial grounds, a complaint principally sustained by reference to Mr Baxter's involvement. She awaits the judgment of the Tribunal for a financial remedy about actual losses, which would not be difficult to calculate, and for the injury to her feelings.
- The unlawfulness of Mr Baxter's decision extended for as long as she was paid at less than full pay while she was on sick leave, and until she became fit. Thus, the cut off date of 16 November of her right to be paid was unlawful as the Tribunal held and it continued to be unlawful until the circumstances changed on 26 November 2001. We accept the argument which Miss Davies puts before us that at that stage the potency of the original decision diminished. Indeed, it will be recalled that the Applicant's case was that she was confident about coming about to work from early November and had advised the Respondent that having consulted her own GP she was medically fit to come back subject to a review after three months. That is supported by the evidence of her consultant psychiatrist to which the Tribunal referred. It must also be noted that the Applicant gave evidence before the Tribunal in words which are summarised in the Respondent's answer before the EAT which are not challenged:
"7. For the avoidance of doubt, the contentions set out at paragraph 8 of the Notice of Appeal are inconsistent with the oral evidence given by the Appellant. When questioned in detail by the Chairman, the Appellant made it perfectly clear that the reason she did not return to work after 26 November 2001 was not because of ill-health or because of Mr Baxter's decision not to extend her full pay beyond 16 November 2001. It was because of the subsequent decision that she should not be paid full-pay during her phased return to work on a part-time basis, but should only be paid in full for the hours she actually worked. The Tribunal held that that decision was not an act of race discrimination."
- Thus it is correct to say that while the Applicant remained away from work on sick leave the unlawful discrimination continued, but on her presentation as fit it ceased. The Tribunal was right to build in what has been described as a cut-off, indicated by her willingness to return to work pursuant to her medical advice. It is not open to the Applicant, therefore, to contend that she had a ground of appeal before the EAT. It will be recalled from the depiction of the issues put before the Employment Tribunal (see paragraph 3 above) that its first responsibility was to decide whether or not there had been a refusal on 16 November 2001 on grounds of the Applicant's race.
- Having decided that matter in her favour, the second issue then arose which is whether the decision on 21 November that she would not get full pay also constituted race discrimination. In our judgment the record can be looked at by reference to both of the two comparators who are accepted by the Respondent as being relevant. It has to be pointed out that Mr Baxter's decision about the Applicant was made prior to the decision in respect of Ms Hatfield and he was not directly involved in that decision in any event. In respect of Ms Fearn, even after looking at the new evidence which shows the paper trail, we accept the Respondent's contention that there is no link between what Mr Baxter knew of Ms Fearn's criticisms and the terms of the compromise agreement relating as it did to her return on full pay or working shorter hours. Thus even in the light of that new material the Tribunal's decision cannot be said to be perverse.
- In the short passage of time of only two days when this hearing took place, and in the light of the two issues put before, the Tribunal cannot have lost sight of the fact that it made condign criticisms of Mr Baxter in respect of his first decision and they could be read across to his second, if the evidence were there. The wisdom of Sedley LJ in Anya at paragraph 25 relied upon by Mr Afeeva, is very apposite for, in terms familiar to those engaged in criminal law, it does remind tribunals and juries that a person can be credible and mistaken and also that a person who does not tell the truth in respect of one matter might yet be telling the truth in respect of another. These are standard directions in criminal proceedings and, via Anya, they are applicable in tribunals. They remind the industrial jury to take particular care in dealing with oral evidence. In our judgment, the Tribunal cannot be faulted, as against the high standard required for a perversity challenge, in the approach which it took to the explanation given by Mr Baxter for the decision on the phased return to work. Secondly, as a matter of causation, the Applicant's own willingness to assert that she was ready to return to work indicated that a fresh decision needed to be taken.
- The appeal is dismissed. We would very much like to thank both Counsel before us today for the succinct and very measured approaches they have taken to the arguments which obviously arise from very difficult factual circumstances affecting both of their clients. We hope now that after all this time the path may be open to a negotiated or conciliated settlement, since neither side has completely won or lost, and the Applicant is still employed. Otherwise the Tribunal's order for an adjourned remedies hearing will remain in place and the Applicant should apply within 7 days for such a hearing. The Applicant to serve medical or other evidence going to remedy within 14 days from today. The Respondent 14 days later.
Appeal
- Mr Afeeva has made an application for permission to appeal to the Court of Appeal on two grounds. First he contends that Harrod should be distinguished. A discrimination case should be entertained and fully examined. In our judgment this case has not turned on Harrod because we have examined the circumstances of the first complaint and been addressed on the merits in full before applying Harrod which is apt for all EAT cases. The second ground relates to what is said by Sedley LJ in Anya which we perceive derives from the Turnbull and Lucas directions. Mr Afeeva contends their application fails to grasp certain aspects of evidence given in a discrimination case and fails to deal holistically with that evidence.
- The Court of Appeal in Anya, itself a race discrimination case, approved by the House of Lords, recruited concepts derived from standard directions to juries on how to handle issues such as credibility, and Mr Afeeva relied on it as being correct. We do not consider there is a real prospect of the Court wishing to intervene since it will have in mind Hale LJ's judgment in Cook v Secretary of Sate [2002] 3 All ER 279 paras 15 and 18, and the special care it will take when asked to overturn a decision of a Tribunal, upheld by an Appeal Tribunal, each with a diverse and specialist majority, chaired by a specialist judicial officer. Application refused.
