HIS HONOUR JUDGE BIRTLES
Introduction
1.
This is an appeal from the Judgment of an Employment Tribunal sitting at
Manchester in November 2011 and January 2012. The Judgment and reasons
were sent to the parties on 1 February 2012. The unanimous Judgment
of the Tribunal was: (1) that the First Respondent had unlawfully deducted the
Claimant’s wages from 7 January 2011 to 23 November 2011;
(2) the First and Second Respondents did not unlawfully discriminate against
the Claimant because of her sex contrary to the Equality Act 2010;
and (3) the First and Second Respondents victimised the Claimant for taking
proceedings to an Employment Tribunal, claiming sex and religious
discrimination by subjecting her to a detriment for doing a protected act,
contrary to the Equality Act 2010.
2.
This is an appeal by the First and Second Respondents against the third
finding of the Employment Tribunal: the victimisation claim. The question of
the unlawful deduction of wages has been settled at a review hearing and the
Claimant does not cross‑appeal the finding in respect of direct
discrimination on the grounds of her sex.
3.
This morning, the Appellant has been represented by
Mr Colin Bourne of counsel and the Respondent by
Ms Laura Daniels of counsel. We are grateful to both of them for
their written and oral submissions.
The factual background
4.
The Employment Tribunal made findings of fact in paragraphs 2 to 16
of its reasons. We pause here to note that the reasons do not follow the
requirement set out in the Employment Tribunal Rules as to the structure of the
reasons. This may well be one of the explanations as to why we find these reasons
defective. In summary, the Claimant, in her first ET1 claimed both sex and
religious discrimination. The claim for religious discrimination was
withdrawn. She also claimed for unlawful deduction of wages. The ET1 was
dated 1 April 2011. The second ET1 was a claim for victimisation.
That is dated 15 August 2011.
5.
The Claimant was employed by the First Respondent firm of solicitors
from 1 January 2008, firstly as a receptionist, and from
March 2008 as a legal assistant. By August 2010 she was in charge of
residential conveyancing files under the supervision of a Mr Patel, the
conveyancing team leader. She resigned on 23 November 2011, the day
before the Employment Tribunal hearing.
6.
In early November 2010 the Claimant discovered that she was
pregnant. It was an unplanned pregnancy and she attended the Marie Stopes
Clinic for consultation and advice. She was off work briefly because of the
pregnancy. On 23 November 2010 she told Mr Mohammed, the
Principal of the Respondent firm, that she was going to have a termination.
She was distressed. Mr Mohammed told her to go home for the day and she
had a little more time off work. She had a termination and had more time off
work as a result of that. While she was away there was some concern by the
Respondent about the quality of her work.
7.
On the evening of 29 November the Claimant saw her General
Practitioner and the Tribunal found that she had explained to him/her that she
was struggling to cope with the trauma of the termination, coupled with the
stress she was being placed under at work at the time. She was given a
statement of fitness for work, stating she was unfit for two weeks and the
reason given was stress at work. On 13 December 2010 she was signed
off for a further two weeks, again with the reason being given as stress at
work. She gave evidence to the Tribunal that at the time she was still
suffering from the psychological effects of the abortion and the fact that her
relationship with her partner had broken up. On 14 December 2011 she
received an email from Mr Mohammed objecting to the GP putting stress at
work on the fitness notes. I think it is clear from the evidence that
Mr Patel was not aware of this. He thought that the reason for her being
off work was the effects of the termination.
8.
The Claimant returned to work on 4 January 2011 after the
Christmas break. She felt well and was able to cope with her job. She met
Mr Mohammed who told her that she would not be allowed to return until she
had obtained a fit to work note from her GP. She made an appointment for the
following day with her GP. Later on 4 January she received an email from
Mr Mohammed stating he had a duty of care not to allow her to return to
work unless she was well enough to do so. He referred to her email of
14 December and was clearly concerned about her condition. The Tribunal
note in paragraph 9 of its reasons that the fit note, introduced by the
Department of Work and Pensions in 2010, no longer gives a General Practitioner
the option of certifying that an employee is fit for work. It does permit him
to state that he does not need to see the patient again.
9.
On 5 January the Claimant saw her GP and he gave her a note of unfitness
retrospective to 28 December 2010, stating there was no need for him
to see her again. That note expired on 6 January 2011. The Tribunal
took the view that this was a clear statement that the Claimant was fit for
work and no further evidence was required. When the Claimant gave the final
note to Mr Mohammed he refused to accept it because he thought that it did
not state unequivocally that the Claimant was fit to work. He wrote to the GP
for written confirmation as to whether the Claimant was capable of carrying on
with her current job role. The Tribunal note that Mr Mohammed, albeit a
practising solicitor, was not aware of the detail of the Access to Medical
Reports Act 1988. The GP replied to Mr Mohammed on 12 January
saying that he lacked the experience to comment on the patient’s capability of
carrying out her current job role and suggested that a referral should be made
to a consultant psychiatrist or an occupational health adviser.
10.
The Respondent did not have a contract with an occupational health
provider. Mr Mohammed replied that he was puzzled by the response and he
took the GP’s letter of 12 January 2011 to mean that the Claimant
remained unfit for work. He requested the medical records of the Claimant from
the GP practice. The GP practice, the Tribunal found, was unhappy about
releasing the full medical records to the Respondent and suggesting that they
be released to the patient or to a consultant who was to provide an independent
medical report. They referred to the Data Protection Act 1998. At the
same time the Respondent wrote to the Royal Preston Hospital asking for all of
the Claimant’s medical records enclosing her written consent to this. The
Tribunal were critical of Mr Mohammed’s ignorance of the Data
Protection Act 1998 as well as the Access to Medical Reports Act 1988.
In particular, Mr Mohammed was not competent to interpret them because he
had no medical qualifications.
11.
The Claimant remained on statutory sick pay until 17 June 2011
when it expired. Her evidence to the Tribunal was that from
7 January 2011 she was ready, able and willing to work, as evidenced
by the GP’s note of 5 January 2011. On 9 February 2011 she
raised a grievance asking for her pay to be restored. The Respondent gave
evidence to the Tribunal that it would have been a breach of its duty of
reasonable care for the health of its employee to allow her back to work until
there was a statement from her doctor that she was fit. Following receipt of
the Claimant’s grievance the Respondent suggested to the Claimant that she
should pay any wasted costs of a consultant of £750 an hour if he was not
provided with the requisite medical records.
12.
The Tribunal found that this was a threat to deter the Claimant from
proceeding further with her grievance. The Claimant had made it clear she did
not object to disclosure of her records. She was willing to be seen by an
occupational health consultant or a consultant psychiatrist. Mr Mohammed
received the Claimant’s GP records, which refer to the termination on
11 April 2011. Her hospital records had been received on
22 March 2011. The records from the Marie Stopes Clinic, which
carried out the termination, were received in August 2011. They showed
that the Claimant suffered from depression and was taking the drug Sertraline.
The Tribunal specifically said it has no evidence on which to judge whether
this affected her fitness for work, nor did Mr Mohammed. They found that
the GP did not consider that it rendered her unfit in January 2011.
13.
In a section then headed ‘The Law’, which is in fact not a section
setting out the relevant law, the Tribunal made a series of findings. We need
only, for the purposes of this appeal, to consider paragraph 19. It says
this:
“As regards the complaint of victimisation, the Tribunal finds
that the Respondent subjected the Claimant to a detriment, namely continuing to
refuse to allow her to work and earn her wages, because she had brought an
Employment Tribunal claim for sex discrimination under the Equality Act 2010
and had raised a grievance about an unlawful deduction of wages. The Tribunal
finds that her claims were made in good faith because she genuinely believed,
although the Tribunal found mistakenly, that it was her termination of
pregnancy that influenced Mr Mohammed to continue to resist allowing her
to return to work after she had submitted her first ET1 and that was an act of
sex discrimination. The Claimant asserted that after she brought proceedings
the Respondent’s investigation of her fitness to work was put on hold, but the
Respondent argued that it was her fault for delaying obtaining all her medical
records which had held up the process. The Claimant commented that the
Respondent could not produce any evidence that a consultant had been appointed,
though Mr Mohammed said that he had approached the Priory Clinic. In a
letter to the Claimant’s solicitors, dated 3 May 2011, he wrote that
he had consulted the Priory Clinic on an ‘initial no‑obligation
basis’ with a wish to instruct one of two named consultants. The letter
continues that the employer needed ‘some background as to your client’s medical
history on an open and frank basis’. At this time he had received all her GP
records and those from the Royal Preston Hospital. The Marie Stopes records
were obtained in August 2011. No attempt was made even after that to
instruct a consultant, though at this stage Mr Mohammed had all the GP and
hospital records of which he had had possession for some months, as well as the
clinic records. The Tribunal finds that there is sufficient evidence that
after the Claimant presented her first ET1 to the Tribunal the Respondent
delayed the process of bringing the investigation to a conclusion, while
meanwhile the Claimant from June 2011 was receiving no pay or SSP, as she made
the Respondent aware. This was victimisation contrary to section 27
Equality Act 2010. She continued to be an employee of the Respondent
and it was unreasonable not to make a decision about her return to work, when
the Respondent already had had access to all her GP and hospital records for
some time and from August 2011 also had her Marie Stopes records.
Mr Mohammed was in any event not competent to interpret any of this
information, and should have sought an expert’s report. The Tribunal therefore
finds the complaint of victimisation proved.”
The law
14.
It is not necessary for the purposes of this appeal to go into the law
relating to the Equality Act 2010 and victimisation in
any detail. Section 27 of the Equality Act 2010 provides
this:
“Victimisation
(1) A person (A) victimises another person (B) if A subjects B
to a detriment because—
(a) B does a protected act, or
(b) A believes that B has done, or
may do, a protected act.
(2) Each of the following is a protected act—
(a) bringing proceedings under this
Act;
(b) giving evidence or information in
connection with proceedings under this Act;
(c) doing any other thing for the
purposes of or in connection with this Act;
(d) making an allegation (whether or
not express) that A or another person had contravened the Act.
(4) This section applies only where the person subjected to a
detriment is an individual..”
There is no disagreement as to what the appropriate law was for
the Employment Tribunal was to apply.
The grounds of appeal
15.
There are three grounds of appeal and we take each in turn. Before
turning to them we should also add that Mr Bourne, on behalf of the
Appellant, accepts that the Claimant had done a protected act in this case,
which was the first application to the Employment Tribunal claiming
discrimination and unlawful deduction of wages. The appeal is predicated on
the basis that the Claimant was not subject to any detriment by reason of
having brought the first proceedings.
16.
Ground 1: making findings on victimisation that were not part of
the Claimant’s claim. Mr Bourne submits that there was no claim in respect of
an act of victimisation by reason of the fact that the Claimant had raised a
grievance concerning the unlawful deduction of wages. That grievance was made
on 9 February 2011.
17.
Paragraph 19 of the reasons is, at best, ambiguous. We are
inclined to accept Ms Daniels’ interpretation of the first part of
paragraph 19, where the Tribunal say this:
“As regards the complaint of victimisation, the Tribunal finds
that the Respondent subjected the Claimant to a detriment, namely continuing to
refuse to allow her to work and earn her wages, because she had brought an
Employment Tribunal claim for sex discrimination under the Equality Act 2010
and had raised a grievance about an unlawful deduction of wages.”
18.
The sex discrimination claim and the unlawful deduction of wages do form
part of the original Employment Tribunal claim. It is, therefore, possible
that the Tribunal was referring to that. If, however, they were referring to the
grievance as separate protected act then they are wrong because the form ET1 in
the second victimisation proceedings makes no reference whatsoever to the
raising of the grievance as being a protected act (see appeal bundle at
pages 54 to 55). However, if that is right, then the Tribunal have
clearly made an error of law. However, that does not affect the result of this
case because Mr Bourne, for the Respondent, accepts that the Claimant had
made a protected act under section 27(1)(a) and 27(2)(a) in that she had
brought proceedings under the Act, that is the first set of proceedings.
19.
This case stands or falls on ground 2. Ground 2: failure to provide reasons
that are compliant with the decision in Meek v Birmingham City Council [1987] IRLR 250. The relevant passage is in the
Judgment of Bingham LJ, as he then was, at paragraph 8, where he said:
“It has on a number of occasions been made plain that the
decision on an Industrial Tribunal is not required to be an elaborate
formalistic product of refined legal draftsmanship, but it must contain an
outline of the story which had given rise to the complaint and a summary of the
Tribunal’s basic factual conclusions and a statement of the reasons which have
led them to reach the conclusion which they do on those basic facts. The
parties are entitled to be told why they have won or lost. There should be
sufficient account of the facts and off the reasoning to enable the EAT or, on
further appeal, this court to see whether any question of law arises; and it is
highly desirable that the decision of an Industrial Tribunal should give
guidance both to employers and trade unions as to practices which should or
should not be adopted.”
Putting it in a slightly different way, the purpose of the reasons
of an Employment Tribunal are to tell the parties, or to make it clear to the
parties, so that they know why they lost or why they won.
20.
Mr Bourne submits that the Employment Tribunal had made a number of
assertions in paragraph 19 without making relevant findings of fact to
explain how the Employment Tribunal reached its conclusion that Mr Mohammed
had victimised the Claimant. Essentially that the causation element is missing.
Mr Bourne also makes a number of criticisms of what Ms Daniels has
called background findings of fact by the Employment Tribunal. Ms Daniels
submitted that the Employment Tribunal had made all relevant findings of fact
to explain its conclusions in paragraph 19 that the Claimant been
victimised because she had brought the second Employment Tribunal application.
21.
It is important, therefore, to focus on paragraph 19. The Tribunal
express its conclusion in two ways. Firstly at the beginning of
paragraph 19 it says:
“[…] the Tribunal finds that the Respondent subjected the
Claimant to a detriment, namely continuing to refuse to allow her to work and
earn her wages, because she had brought an Employment Tribunal claim for sex
discrimination under the Equality Act 2010 and had raised a grievance about an
unlawful deduction of wages.”
Further on in paragraph 19 the Tribunal say this:
“The Tribunal finds that there is sufficient evidence that after
the Claimant presented her first ET1 to the Tribunal the Respondent delayed the
process of bringing the investigation to a conclusion, while meanwhile the
Claimant from June 2011 was receiving no pay or SSP, as she made the
Respondent aware. This was victimisation contrary to section 27
Equality Act 2010.”
Doing the best we can, we think that the Tribunal’s finding is
that Mr Mohammed, on behalf of himself and, of course, his firm, the other
Respondent, delayed the process of bringing the investigation to a conclusion.
The question of pay, or SSP, is a consequence of Mr Mohammed’s delay.
22.
We agree with Mr Bourne that on the evidence before the Tribunal, of
which we have some including correspondence from Mr Mohammed, that the
Employment Tribunal did not make adequate findings of primary fact about those
documents which explained the delay from the point of view of
Mr Mohammed. Neither did it make any comment upon his oral evidence to
the Tribunal. It therefore did not say that a prima facie case of
victimisation by Mr Mohammed existed and ask him for an explanation. He
did not explain what his explanation was. Finally, and most importantly, it
did not say that we reject Mr Mohammed’s explanation and find there was
victimisation here. At no stage does it seek to evaluate Mr Mohammed’s
evidence. It does not say really anything other than the fact they found him
to be a somewhat hapless solicitor who did not understand the relevant
legislation about access to medical records.
23.
If one turns to paragraph 19 again, the Tribunal recite what appear
to be contentions. We note the use of the words ‘asserted’, ‘argued’ and
‘commented’ as opposed to ‘said in evidence’. The Tribunal recite that Mr Mohammed
had had delays in getting access to the medical records and the last records
from the Priory Clinic, which carried out the termination, a termination which
clearly had a physical as well as a psychological effect on the Claimant. It
recited the fact that he had consulted the Priory Clinic in early May 2011
and obtained the names of two consultants but considered that he needed “some
background as to your client’s medical history on an open and frank basis”. The
Tribunal record that no attempt was made after August 2011 when the Marie
Stopes records were obtained by Mr Mohammed to instruct a consultant when
he had had the GP records and the hospital records.
24.
Those are the factual findings of the Tribunal. The conclusion which
they draw is in the following sentences:
“The Tribunal finds that there is sufficient evidence that after
the Claimant presented her first ET1 to the Tribunal the Respondent delayed the
process of bringing the investigation to a conclusion, while meanwhile the
Claimant from June 2011 was receiving no pay or SSP, as she made the
Respondent aware. This was victimisation contrary to section 27
Equality Act 2010.”
There is an absence of reasoning as to why the Tribunal found
there was sufficient evidence after 1 April 2011 that the Respondent,
Mr Mohammed, delayed the process of bringing the investigation to a
conclusion. There is no attempt to deal with the issue of causation at all in
paragraph 19. We think that that is an error of law. This decision is Meek
defective. Not only, we are told by Mr Bourne, that does his client,
Mr Mohammed, not understand why he lost but we do not understand why he
lost and, as Bingham LJ made clear, that is a deficiency which amounts to
an error of law.
25.
Ground 3 is perversity. It is not a ground which persisted in today
with any vigour by Mr Bourne. The test is Yeboah v Crofton
[2002] IRLR 634 at paragraphs 92 to 95 per Mummery LJ and that sets a very
high hurdle for an appellant to surmount. It is not surmounted in this case.
Conclusions
26.
Our conclusion is that the appeal should be allowed on ground 2. The
case is remitted to a full hearing before a fresh Employment Tribunal on the
usual terms.
