Appeal No. UKEAT/0393/11/CEA

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

                                                                                                          At the Tribunal
                                                                                                          On 12 March 2012 & 2 May 2012
 	  Judgment handed down on 17 September 2012

Before
HIS HONOUR JEFFREY BURKE QC
MR D G SMITH
MS P TATLOW

MRS Y AJAYI	APPELLANT

THE APULDRAM CENTRE	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR D IBEKWE
(Representative)
Brighton and Hove Race Project
Brighton Media Centre
68 Middle Street
Brighton
East Sussex
BN1 1AL	
For the Respondent	MS A MUSGRAVE
(of Counsel)
Instructed by:
Lyons Davidson Solicitors
5th Floor St Bartholomew House
90-94 Fleet Street
London
EC4Y 1DH

SUMMARY
UNFAIR DISMISSAL

The Claimant was dismissed for misconduct.  She claimed automatic unfair dismissal, unfair and wrongful dismissal, race discrimination and victimisation.  Only the wrongful and unfair dismissal claims succeeded; compensation of just over £1,000 was awarded for unfair dismissal, reduced by 30 per cent for contributory conduct and failure to appeal.

The Claimant’s appeal against the reductions from compensation for unfair dismissal were not pursued; the amount involved was too small; they were not abandoned, in case they be of relevance to compensation for discrimination/victimisation.  The EAT, therefore, considered the appeal against the rejection of those claims.  The EAT concluded that the Tribunal, in respect of both claims had made decisions on the facts, had made no error of law and that none of their facts and findings had been shown to be perverse.

The other grounds of appeal were, in the light of the above, not pursued.

HIS HONOUR JEFFREY BURKE QC
The history
1.	The Claimant before the Employment Tribunal, Mrs Ajayi, appeals against a number of the conclusions reached in their Judgment by the Employment Tribunal, sitting at Southampton and presided over by Employment Judge Miles.  The Judgment was sent with reasons to the parties on 16 February 2011.

2.	The Claimant has been represented before us, as before the Tribunal, by Mr Ibekwe of the Brighton and Hove Race Project.  The Respondent, The Apuldram Centre, have been represented before us, as before the Tribunal, by Ms Musgrave of counsel.  We are grateful to both for their assistance.

3.	The Respondent is a charity which provides services to adults with learning disabilities.  They own flats, which they let to vulnerable adults, and provide care and support to them in an effort to enable them to lead full and active lives.  They employ support workers, whose jobs were to work (see paragraph 15 of the Tribunal’s Judgment):

“[…] as a team with staff and tenants to ensure that the emotional, medical and material needs of the tenants are recognised, assessed and met and to enable each tenant to fully develop their own independent lifestyle.”

4.	The Claimant was employed by the Respondent as a part‑time support worker from 1 May 2007; she worked for over 20 hours per week and worked elsewhere for other employers.  She is, in race terms, of black African origin.

5.	From this employment the Claimant was summarily dismissed on 25 November 2009 after an investigation of allegations of misconduct, followed by disciplinary proceedings.  She presented the following claims to the Employment Tribunal: (1) unfair dismissal; (2) automatically unfair dismissal for making protected disclosures; (3) direct race discrimination; (4) victimisation; (5) wrongful dismissal; and (6) unpaid holiday pay.

6.	The Employment Tribunal’s conclusions were as follows: (1) the Claimant had been unfairly dismissed; (2) the claim of automatically unfair dismissal was dismissed, having been withdrawn by the Claimant; (3) the race discrimination claim was dismissed; (4) the victimisation claim was dismissed; (5) the wrongful dismissal claim succeeded; and (6) the holiday pay claim was dismissed on withdrawal.

7.	The Tribunal assessed compensation for unfair dismissal at £1,053.92, made up of a basic award of £236 and a compensatory award of £1,136; they then reduced the award by 20 per cent for contributory conduct on the Claimant’s part and by 10 per cent, under section 207A of the Employment Rights Act 1996, because the Claimant had not appealed against the disciplinary conclusion.  They awarded the Claimant £329 damages for wrongful dismissal; the total award was, therefore, £1,472.92, of which £817.92 was the compensatory award for unfair dismissal.

The grounds of appeal
8.	It is important to set out the grounds of appeal contained in the Claimant’s notice so that what follows can be understood.  They are:
(1)	Unfair dismissal: (a) the Tribunal, in reaching their decision on unfair dismissal, did so on procedural grounds, namely that there had been an inadequate investigation of the allegations against the Claimant – as was conceded – and wrongly failed to decide whether the dismissal was, as contended by the Claimant, substantively unfair (this led to adverse or potentially adverse effects upon the assessment of compensation); and (b) the Tribunal failed to take into account a number of important facts that went to substantive unfairness or, if they regarded those factors as immaterial, to explain why they had done so.

(2)	Discrimination: (a) the Tribunal misunderstood the nature of the Claimant’s case on race discrimination and/or failed to make findings as to, or give adequate reasons for, rejecting the discrimination claim; and (b) the Tribunal failed to take into account a number of important factors that went to prove discrimination or to give reasons for failing to do so.

(3)	Victimisation: (a) the Tribunal failed to apply the law correctly in considering the victimisation claim; and (b) the Tribunal failed to take into account in considering the victimisation claim the Claimant’s complaints of 7 March 2009 and 20 October 2009.

(4)	Contributory fault: the Tribunal decided that the Claimant was at fault to the extent of 20 per cent in the face of compelling evidence to the contrary.

(5)	Section 207A: (a) the Tribunal deducted 10 per cent from their award when such deduction was not sought in the Respondent’s response and when no notice had been given that such an issue was to be raised; and (b) in making that deduction the Tribunal failed to take into account, or give reasons for not taking into account, particular aspects of the evidence.

(6)	The Tribunal failed to make an award on what is described in the Notice of Appeal as “stigma damages”, when the established facts merited such an award, or to give adequate reasons for not making such an award.

9.	However, at the outset of the hearing of the appeal Mr Ibekwe informed us that the purpose of the criticism of the Employment Tribunal’s decision as to unfair dismissal was to undermine and thereby to seek to reduce the Tribunal’s conclusion that the Claimant had contributed to her dismissal to the extent of 20 per cent.  It was not his case that, if her grounds of appeal against the unfair dismissal decision succeeded, the Claimant would obtain for unfair dismissal any different or increased remedy – save as to the 20 per cent deduction – but that, if the Employment Tribunal had considered substantive as well as procedural unfairness, the extent of her contribution would or could have been found to have been non‑existent or at a lower level.  He accepted, readily and without any form of persuasion, that to take up substantial time in arguing grounds of appeal which, if successful, would at maximum produce an additional £227.20 for the Claimant was disproportionate.

10.	He took the same view as to the section 207A aspect of the appeal.  He told us that the extent of the contribution – and, we think, the section 207A reduction – would be of importance if the Claimant’s appeal against the rejection of her discrimination and/or victimisation claim were successful, for, although no statutory reduction for compensation for contributory fault could be made for discrimination or victimisation where the act of dismissal constituted discrimination or victimisation, the Tribunal would have to consider what compensation it was just and equitable to award for compensation for victimisation and might be adversely affected in carrying out that exercise by the assessment of contributory fault; if discrimination or victimisation were established, damages would be at a level which would, according to Mr Ibekwe, or, we acknowledge, certainly could, far exceed the sums awarded for unfair dismissal.

11.	Other than for that reason, Mr Ibekwe did not seek to pursue his arguments as to unfair dismissal or contributory fault, or his arguments as to the deduction made by the Tribunal under section 207A.  Those arguments, he said, were only worth pursuing if compensation were potentially to be at a higher level than that so far awarded.

12.	Mr Ibekwe also accepted that what he had described as “stigma damages” could not be awarded for unfair dismissal, at least in the circumstances of this case.

13.	In those circumstances, we proposed to Mr Ibekwe and Ms Musgrave that it would be both pragmatic and sensible to hear the submissions of both sides on the grounds of appeal against the Tribunal’s dismissal of the Claimant’s discrimination and victimisation claims first.  Mr Ibekwe confirmed that, if we rejected those grounds, he would not seek to pursue his other grounds of appeal, and the appeal should be dismissed; but, if we were to accept his arguments either on discrimination or victimisation – or, of course, both – he would, for the reasons we have set out, wish then to argue the remaining grounds of appeal.  Both counsel agreed to that course; we therefore heard the submissions of both on discrimination and victimisation; and we now give our Judgment upon those submissions.

Race discrimination
14.	The Claimant’s pleaded case on this aspect of her claim was set out in paragraph 2.3 of her ET1 in these terms:

“The claimant asserts that the respondent treated her less favourably on the grounds of her race.  The acts of discrimination relied upon relates [sic] to the disciplinary allegations that the claimant claimed and received pay for hours which she had not actually worked.  A further act of discrimination relied upon, is that the respondent used the claimant’s written difficulties of the English language as a pretext for reaching the decision they made that the claimant was guilty of gross misconduct.
The claimant would rely upon her other work colleagues as material comparators.”

15.	The Tribunal said, at paragraphs 55‑58 of their Judgment:

“55. Dealing with the claim for direct discrimination, the unfavourable treatment relied upon is the dismissal but unfortunately the Claimant has led not one jot of evidence in chief to say that she considered that she had been the subject of discrimination on racial grounds.  The only mention of race in the case is the complaint by one of the tenants that might have had racial connotations but there is nothing in that occurs subsequently that raises a case for the Respondent to answer that the Claimant had been the subject of less favourable treatment (dismissal) on racial grounds.
56. The Claimant was indeed subject to a disciplinary process which is open to the criticisms that we have made and that has resulted in a finding of unfair dismissal but that is very far from saying that the process was motivated or caused or connected with the Claimant’s racial group in any way.
57. In submissions it was suggested that we should look at actual comparators who were other white employees.  No evidence was led by the Claimant on the issue of comparison and therefore no actual comparator was actually mentioned to the Tribunal.  However if one attributes the same characteristics to a hypothetical comparator where residents had made a complaint the Tribunal unhesitatingly comes to the conclusion that the individual would have been the subject of investigation and possible disciplinary action.
58. Accordingly, there is no case for the Respondent to answer on direct race discrimination and the claim is dismissed.”

16.	At first blush it seemed to us that there might be thought to be an inconsistency between that pleaded case and the Tribunal’s description of the dismissal as the unfavourable treatment relied upon, a thought perhaps fostered by paragraph 7.3 of the Notice of Appeal; but Mr Ibekwe allayed our anxieties as to that.  His complaint to the Tribunal was that the Claimant’s dismissal was partially based upon the allegation that she had claimed pay for hours not worked; the Tribunal ought, he submitted, to have found that that allegation was, and therefore the dismissal that followed from it was, discriminatory.  He put his case in this way: the Claimant was the only black support worker in the unit; she made the same claims for pay as her colleagues; none of her colleagues was the subject of disciplinary action or dismissal; but the Claimant was.  From this, the Tribunal ought to have drawn the inference that there had been or may have been racial discrimination and ought to have looked for an explanation from the Respondent; the Tribunal wrongly rejected the discrimination claim on the basis that it was unsupported by evidence.

17.	The language issue arose, Mr Ibekwe submitted, from the episode described in the Claimant’s witness statement in which Mrs Kilbey of the Respondent interpreted a log entry made by the Claimant on 1 August 2009, which read:

“Both Lil and Emily are here this morning when I arrived, about 11.45am Emily, Mum and Dad arrived.  They came to take her out to lunch.”

18.	This was interpreted as being inconsistent with the Claimant’s claim to have been at work from 11.00am.  The Claimant’s case was that Mrs Kilbey was trying to use the standard of the Claimant’s English language skills against her.  Mrs Kilbey, we are told, accepted in evidence that she had misinterpreted what the Claimant had written; Mr Ibekwe argued that mis-interpretation was not an acceptable explanation and that Mrs Kilbey must have acted deliberately and discriminatorily.

19.	Ms Musgrave drew our attention to the absence, in any of the Claimant’s evidence, of any suggestion that these events were based on race or constituted discrimination.  Her allegations, she submitted, were unsupported by evidence; her pleading was not evidence; and it was for the Claimant to prove facts upon the basis of which an inference of discrimination could be drawn; but the Tribunal found that she had wholly failed to do that, and the Respondent’s witnesses, she told us, were not cross‑examined on the basis that any part of their investigation of the Claimant was discriminatory (a description of events with which Mr Ibekwe took issue and which, for that reason, we will set aside).

20.	As to the language point, Ms Musgrave referred to paragraphs 16 and 17 of the Judgment, in which the Tribunal found that the Claimant had a good command of English; there was, she submitted, on the face of what had occurred, nothing to indicate race discrimination.

21.	There is no suggestion that the Tribunal misunderstood the law.  Mr Ibekwe does not advance any errors of law made by the Tribunal beyond what we have, in summary form, set out; to our suggestion that his case was, in reality, that the Employment Tribunal’s view of the facts was perverse or “wrong”, to use a word which he used, he responded, in effect, that the evidence to which we have referred contradicted the Tribunal’s findings.

22.	We do not accept Ms Musgrave’s argument that, in order for discrimination to be established, it is necessary for the alleged victim of that discrimination to say in a witness statement or orally that he or she believed that what had been done or not done by the alleged discriminator constituted discrimination.  An inference may be drawn from the primary facts set out in the evidence of the victim or indeed from elsewhere, whether or not the victim expressly states that particular facts constitute or evidence discrimination.  The Tribunal were, in this case, entitled to comment, however, on the fact that the Claimant did not herself say that she thought she had been subjected to race discrimination by the Respondent (although she did complain that she had been treated in a potentially racially discriminatory manner by one or more of the Respondent’s service users); but they did not base their decision on that alone.  At paragraph 57 the Tribunal correctly asked themselves whether the position would have been different in the case of a hypothetical white comparator and answered that question unhesitatingly that that comparator would have been treated as was the Claimant.  The Tribunal were, in that paragraph, (a) asking themselves the correct question and (b) answering that question on the basis of the evidence.  Their conclusion was one of fact, and indeed one which has not been overwhelmingly, or indeed at all, demonstrated to be a conclusion that no reasonable Tribunal could reach or which is otherwise perverse.

23.	We have had some difficulty in understanding fully Mr Ibekwe’s point about the Claimant’s use of language.  To leap to a conclusion, even deliberately, as Mr Ibekwe contends, about misconduct because of the imperfection of someone’s use of language is not of itself an indication of discrimination; as Ms Musgrave pointed out, the same problem could arise in the case of the use of language by anyone of any racial characteristic to whom English was not a first language and indeed, unhappily, in the case of many people for whom English is their only language.  The Tribunal were entitled to regard none of the points raised by Mr Ibekwe as giving rise to an inference of race discrimination and to conclude that a white comparator would have been treated as the Claimant was in respect of the case of discrimination that was put before them, as we have described it, which, when the Tribunal’s Judgment is read as a whole, it can be seen they plainly had in mind.

24.	For these reasons, the appeal against the Tribunal’s dismissal of the Claimant’s race discrimination claim fails.

Victimisation
25.	The Claimant’s case under this head of claim is set out in her ET1 in these terms:

“The claimant asserts that she made protected acts by her complaints of racial discrimination or harassment against the respondent and a client.
The detriment claimed by the claimant is her dismissal and non payment of notice.”

26.	Mr Ibekwe told us that he put the case forward to the Tribunal on the basis of two letters or reports made to the Respondent by the Claimant: the first is a letter dated 7 March 2009, reporting that a service user may have resented being in the Claimant’s company on the basis of her appearance or race; the second is a report on 20 October 2009 referring to the above and to another service user who commented on the Claimant’s colour.

27.	It is agreed that these two documents were relied upon as the protected disclosures for the purpose of the claim that the Claimant had been automatically unfairly dismissed, pursuant to section 103A of the 1996 Act.  Ms Musgrave contends that, when Mr Ibekwe withdrew the claim under section 103A, as recorded in paragraph 8 of the Tribunal’s Judgment, he also withdrew reliance on those documents for the purposes of the Claimant’s victimisation claim; therefore there was no remaining victimisation claim, and the appeal against the dismissal of that claim must fail on that basis in any event.  Mr Ibekwe tells us that he made no such concession.

28.	We have not had any sight of any notes of the Employment Judge or his colleagues, nor have they been asked any questions as to this issue.  Ms Musgrave has not told us that she has a clear note of the concession on which she now relies.  In these circumstances, we do not regard it as right to go beyond the concession as to the automatically unfair dismissal claim recorded by the Tribunal at paragraph 8.  We point out that the Tribunal did not reject the victimisation claim on the basis of any such concession but addressed the issue of victimisation by referring to section 2(1) of the Race Relations Act 1976, which they set out at paragraph 48, and by addressing that claim on its merits at paragraph 59.

29.	When, however, we turn to paragraph 59, we find another dispute about concession.  Paragraph 59 is in these terms:

“Turning to victimisation on racial grounds, the Claimant’s representative conceded that there were no facts alleged in this case which fell within Section 2(1)(a)‑(d) of the Act.  Instead it was suggested to us that the case lay in the words ‘by reason that the discriminator knows that the person victimised intends to do any of those things or suspects 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’.  This is an unattractive submission wholly unsupported by the evidence.  No case on victimisation has been made out and it is dismissed.”

30.	Mr Ibekwe tells us that he did not make the concession set out in that paragraph; he says that he would not have done so because he had a clear argument open to him that the two acts of victimisation relied upon, the dismissal and the dismissal without notice (in alleged contrast to the terms of the Respondent’s disciplinary procedure, to which we will come) occurred because the Claimant had complained to the Respondent about race discrimination towards her by service users, which fell squarely within section 2(1)(c) of the Act.  He accepts that he was persuaded by questions from the Tribunal to rely on the alternative words in section 2(1) set out in paragraph 59, but only as a “fall‑back position”.

31.	Ms Musgrave tells us, though, that the Tribunal’s description of Mr Ibekwe’s concession was factually accurate; and she draws our attention to the absence in Mr Ibekwe’s Notice of Appeal, amended Notice of Appeal and skeleton argument to any suggestion that the Tribunal’s description of this concession was in error.

32.	In this case, too, we have no notes from the Employment Judge, no notes from the parties or their representatives and no answers to any questions put to the Tribunal; and, in our judgment, we should and indeed must proceed on the basis that Mr Ibekwe did make the concession recorded by the Tribunal.  He has not sought to argue before us that he should be entitled to resile from that concession, if made.  He has submitted that the Tribunal ought to have concluded that the Respondent knew or suspected that the Claimant intended to do acts falling within section 2(1)(a)‑(d) in that she might have made another report of discriminatory treatment by a service user or users, or complained more formally of discrimination; but he has not, save for the history to which we have referred, pointed to any evidence that supports that assertion, and in our judgement the Tribunal were entitled to reach the conclusion that they expressed in paragraph 59.

33.	It is true that the Tribunal did not expressly refer to the dismissal without notice, as opposed to the dismissal, as an act of victimisation; but there is nothing to suggest that the Tribunal were unaware of the acts of the Respondent which were relied upon as less favourable treatment.  It was not necessary for them to spell out the specific acts of victimisation that they were asked to consider; they simply found that there was no evidence to support the case that the acts of victimisation alleged occurred by reason of the matters set out in section 2(1) of the 1976 Act.  That too was a factual conclusion for them.  Mr Ibekwe’s argument amounts to an attempt to persuade us that the Tribunal ought to have made findings more favourable to the Claimant; but as an appellate Tribunal we can neither find facts nor review findings of fact; we can only intervene if a finding of fact is demonstrated to have been perverse.  Mr Ibekwe did not submit that there was perversity in paragraph 59 of the Tribunal’s decision, and none has been demonstrated.

34.	We should add that Mr Ibekwe made a submission regarding the words of sub‑paragraph (m) on page 6 of the Respondent’s disciplinary policy, namely:

“Where it is considered that gross misconduct has occurred and dismissal is the appropriate action to take, the employee will be dismissed with appropriate notice, or pay in lieu of notice.  The decision to dismiss will be taken by the panel.  The employee will be informed in writing of the decision, stating the date on which the employment ceased and the right of appeal.”

35.	He argued that these words had the effect that the Respondent was contractually bound to give an employee notice of dismissal or pay in lieu of notice whatever the gross misconduct that they believed to have occurred, of any kind.  The Tribunal, he submitted, ought to have had that in mind in deciding whether, in dismissing without notice, the Respondent had victimised the Claimant.  We struggle to see why, if a dismissal of the Claimant without notice was a breach of contract because, assuming the disciplinary policy to be contractual, the Respondent was contractually bound not summarily to dismiss the Claimant without pay in lieu of notice, that assists or adds to the Claimant’s victimisation case.  Niceties of construction of a document which may or may not have been of contractual force do not, in our judgment, assist the Claimant’s argument.  We notice that the Tribunal made no reference to this point, which finds no place in Mr Ibekwe’s skeleton argument.  We intend to say no more about it; it is not necessary for us to reach any conclusions as to the correct construction of sub‑paragraph (m) of the disciplinary policy, beyond saying that a construction which has the effect that an employer cannot, without being in breach of contract, summarily dismiss an employee however serious the gross misconduct established against him or her, is unlikely to be correct.  That tentative view has, however, no relevance to our decision on this appeal.

Conclusion
36.	Accordingly, for the reasons we have set out, the appeal against the Tribunal’s conclusions as to discrimination and victimisation fails.  As Mr Ibekwe accepted, in the circumstances we have outlined above, none of the other grounds of appeal are now to be pursued.  The appeal is therefore dismissed.