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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Crichlow & Ors v. Community Housing Association Ltd [2001] UKEAT 1056_00_1412 (14 December 2001) URL: http://www.bailii.org/uk/cases/UKEAT/2001/1056_00_1412.html Cite as: [2001] UKEAT 1056__1412, [2001] UKEAT 1056_00_1412

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APPEARANCES

 

For the Appellants	MR THACKER (of Counsel) North Lambeth Law Centre 14 Bowden Close Kennington London
For the Respondent	MISS TETHER (of Counsel) Messrs Jenkins & Hand Solicitors Clutha House Storey's Gate London SW1P 3AY


 


HIS HONOUR JUDGE D M LEVY QC

1. This appeal arises from the decision of an Employment Tribunal sitting at London Central from 4–6 July 2000. In a decision promulgated on 25 July 2000 the Tribunal dismissed complaints of discrimination under the Race Relations Act made by four Appellants who were employees of Community Housing Association Ltd ("the Respondent"). One of the Appellants had withdrawn the complaint prior to the hearing commencing. The Tribunal dealt with the other three complaints. Mr Thacker, who appears for the Appellants on this appeal, did not appear below. Miss Tether, who did, appears before us today for the Respondent. Four employees had all made complaints to the Tribunal of discrimination. The commencing words of the decision of the Employment Tribunal were:

"The unanimous decision of the Tribunal is that

i. the Originating Application of the Second Applicant is dismissed upon withdrawal;

ii. the Respondent did not unlawfully discriminate against the Applicants on racial grounds, nor did it victimise them."

The appeal is concerned only with the Appellant's complaints of victimisation.

2. Both counsel have addressed us extensively on the scope of the Race Relations Act in this case and our attention has been drawn to four decisions. Nagarajan v London Regional Transport [1999] ICR 877; Chief Constable of West Yorkshire Police v Khan [2001] UKHL 48, [2001] IRLR 820; Anya v University of Oxford [2001] EWCA Civ 405 [2001] IRLR 377 and Aziz v Trinity Street Taxis [ 1988] ICR 52.
3. Section 2(1) of the 1976 Act provides:

"(1) A person ("the discriminator") discriminates against another person ("the person victimised") in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has –

(a) brought proceedings against the discriminator or any other person under this Act; or

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act; or

(c) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person; or

(d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act

or by reason that the discriminator knows 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."

In the Khan case the House of Lords held that the phrase "in any circumstances relevant for the purposes of any provision of this Act" refers to circumstances in respect of which discrimination is unlawful under the 1976 Act. In the present case it is common ground that Section 4(2) of the Act is the applicable provision. In so far as material it provides:

" It is unlawful for a person in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee –

(a) …..

(b) …..

(c) by dismissing him or subjecting him to any other detriment [emphasis added]."

4. The factual background to matters which came before the Tribunal were these. The Respondent is a housing association. When the matters to which the Appellant's complaints related arose, they were employed as Housing Officers by the Respondent. They became aggrieved when the Respondent decided to appoint a Mr Jonathan Card to a short term post as an Area Housing Manager without following its usual recruitment procedure. The post involved short term cover which was at the relevant time envisaged to last for no more than three weeks.
5. By a letter dated 17 March 1999, the Appellants complained to the Respondent's Human Resources Director about the way in which Mr Card had been appointed. We have a copy of the letter in the supplementary bundle and it is clear that copies of the letter were sent to a representative of the Commission for Racial Equality, the Senior Regulations Officer of the Housing corporation, to Maeve MacAvock, the Housing Services Director of the Respondent, to Mick Sweeny, the Chief Executive of the Respondent,. to Simon Berril, the Chair of the Community Housing Association and the MSF Union, of which one of the Appellant was an official.
6. By a letter dated 30 March 1999, the Housing Services Director, Maeve MacAvock, one of the recipients of the letter of 17 March, responded. The first full paragraph of her letter reads:

"I am extremely concerned that you have chosen to ignore the recognised procedure for raising staff grievances. I am also extremely concerned that you have misrepresented certain facts in your letter and, by sending it to external agencies, [emphasise added) have brought CHA's name into disrepute."

Having addressed the substance of the complaint, the writer concluded her letter by inviting the Appellants to meet with her individually to discuss their concerns and why they had chosen to raise them in the way they had.

7. By a letter dated 12 April 1999, the third Appellant, Ms Glasgow, informed the Housing Services Director that the Appellants were not willing to meet her individually but would be willing to do so collectively. The Housing Services Director replied by a letter dated 13 April 1999. She invited the Appellants to reconsider their position in the following terms:

"As agreed, I would be grateful if you would reconsider the position you have adopted in your letter. I am of the view that it is a perfectly reasonable management request to ask to see you on an individual basis. If this request is not met, I will have no choice but to consider invoking the disciplinary procedure. I am very reluctant to do this, as I would like the opportunity to speak to you individually and informally about your concerns."

By a letter 19 April 1999, the Appellants made it clear that they remained unwilling to meet the Housing Services Director individually. She then agreed to see them collectively. A meeting took place on 13 May 1999. We have seen a copy of the minutes and the corrections to it suggested by the Appellants.

8. Following that meeting, on 28 May 1999, the Housing Services Director sent a further letter to the Appellants. In it she said that having considered the arguments put forward at the meeting she remained of the view that they way in which the area housing manager's post had been filled was appropriate. However, she accepted that communication regarding the post was poor and this might have contributed to misunderstandings. Her letter included the following passages:

"The method of selection was not the only issue which was discussed at our meeting on 13 May 1999. We also discussed your reasons for copying your complaint to external organisations [note the plural] before any attempt had been made, to initiate or exhaust internal procedures. I do not consider that the reasons that you put forward for choosing this course of action were adequate or reasonable.

I do believe that your actions were in breach of your duty of loyalty to the organisation and have brought CHA's name into disrepute. I feel therefore that I have to make it clear to you that the method you used to raise your grievance was not acceptable and if it were to happen again, it would be investigated as a disciplinary issue."

9. Part of the complaints made by Mr Thacker in his excellent submissions to us is that the Tribunal has been short in its facts finding. Miss Tether has told us, and we have no reason other than to accept what she says, that in her evidence to the Tribunal the Housing Services Director had said that while she fully accepted it was legitimate for staff to consult an advisory body such as the Commission for Racial Equality on issues of alleged racial discrimination, she did not feel it was acceptable for them to contact other external organisations such as the Housing Corporation without first making an attempt to resolve the problems internally. Miss Tether referred us to the statement of fact which was shown in the minutes of the meeting on 13 May. She submitted that the real complaint which the Housing Services Director was making, and this was clear before the Tribunal, was that it was the complaint to the Housing Corporation rather than other external organisations which was at the heart of the Respondent's complaint.
10. Having set out the background facts in paragraphs 1-9 of the Extended Reasons, in paragraph 10, the Tribunal set out its conclusions on each of the complaints made. As with its conclusions on the complaints, under the heading 'Victimisation' there were two sub headings first, one headed 'Legal Background' and then a paragraph headed 'Generally'. Mr Thacker has kindly, but properly, accepted that in the section with which we are closely concerned of the judgment, there are two unfortunate typographical errors in the two paragraphs which deal with the victimisation claim. The last word in the paragraph headed 'Legal Background' is 'applicant'. The last sentence however is a direct quotation, other than that last word, from a sentence in Lord Nichols speech in the Khan case which had been part of Miss Tether's submissions to the Tribunal. It is common ground therefore that for the word 'applicant' we should put in the correct last word namely, 'outcome'. The other typographical error occurs in the paragraph headed 'Generally' where the words read, 'The Director was clearly upset that the Housing Association." where it should in fact be 'The Housing Corporation', the outside body to which a letter had been sent.
11. As corrected, those paragraphs read:

"VICTIMISATION

Legal Background

Two questions arise for decision under this heading: did the Respondent subject the Applicants to a detriment contrary to section 4(2)(c) of the Race Relations Act 1976 and, if so, were they subjected to the relevant detriment by reason that they had done a protected act, it being conceded that in the present case there was a protected act within the meaning of section 2(1)(d) of the 1976 Act. The test to be applied in deciding whether less favourable treatment is by reason of a protected act is whether the protected act had a significant influence on the [outcome].

Generally

The Applicants complain of two threats of disciplinary action, the first being made in the letter dated 13 April 1999 and the second in a letter dated 28 may 1999. Neither of those threats were acted upon. Those letters are carefully worded and to the point. The Director was clearly upset that the [Housing Corporation] had been copied in on the letter of complaint and that the letter had been written at a stage when the Respondent had not had an opportunity to deal with it under its own procedures. The first letter expressed concern about the failure to meet on a one to one basis and this was a matter which was resolved. The second suggested that there was a duty of loyalty and that the name of the Respondent had been brought into disrepute. It was the method by which the grievance had been made and not the grievance itself which was the stated matter of concern. Accordingly, we find that the alleged threats [that is of disciplinary action] relied upon by the Applicants were not by reason of the actual complaint which the Applicants had made but the method that they had used to pursue them. The complaint is therefore dismissed."

12. At the commencement of this appeal Mr Thacker asked leave to include extra grounds to the grounds of appeal which were already on the agenda. Miss Tether did not object to us giving such leave. The grounds of appeal against the decision are thus as follows:

"(i) the tribunal decided that any alleged less favourable treatment was caused not by the substance of the complaint but rather by the method of airing that complaint – an 'act' is, by definition, not simply having a grievance but doing something in pursuance of that grievance, eg, complaining; and/or

(ii) it being conceded that the Appellants had done a protected act and/or, in any event, the Appellants' actions being a protected act, the tribunal decided that the alleged less favourable treatment was due to the Appellants doing that protected act – therefore the only issue for it to determine was whether there had been less favourable treatment, an issue which it did not decide.

(iii) It wrongly set out in the penultimate paragraph of the extended reasons, the test to be applied in determining whether a complaint of victimisation had been made out; [and that we think goes out once the correction of 'applicant' for 'outcome' is made in the paragraph to which we have already referred]

(iv) It failed to give any or any proper reasons for its finding that the Appellants' claim of victimisation was not made out, in particular, there is no reference to the oral evidence which was given by either party on the issue, nor any indication of the process by which Employment Tribunal drew inferences from the primary facts. "

13. For the Respondent Miss Tether submitted that the Employment Tribunal was entitled to draw a distinction between the method which the Appellants used to pursue their complaints and the complaints themselves. Both she and Mr Thacker made references to the recent House of Lords decision in Khan. Miss Tether submitted that that decision makes it clear beyond doubt that distinction of this kind is permissible. She pointed to the appropriate test, the 'but for' test, which was discussed by Lord Nichols of Birkenhead in his speech at paragraphs 29-31. He said that the correct question is:

"Why did the alleged discriminator act as he did? What consciously or unconsciously was his reason?"

She also referred us to the speech of Lord Hoffman at paragraphs 54-59, where he said:

"the "but for" test does not yield an answer to the question of whether the protected act was a reason (conscious or unconscious) for the less favourable treatment"

and to the speech of Lord Scott at paragraphs 77-80 where he said that:

"the words "by reason that " suggest …. that it is the real reason, the core reason, the causa causans, the motive, for the treatment complained of that must be identified."

14. Miss Tether submitted that all members of the House had approved the decision of the Court of Appeal in Cornelius v University of Swansea [1987] IRLR 141. In that case the respondent university had refused a request for a transfer and a hearing under the grievance procedure whilst proceedings under the Sex Discrimination Act 1975 were pending. She referred us to a passage of Bingham LJ, as he then was, at pages 145-146:

"There is no reason whatever to suppose that the decisions of the registrar and his senior assistant on the applicant's request for a transfer and a hearing under the grievance procedure were influenced in any way by the facts that the appellant had brought proceedings or that those proceedings were under the Act. The existence of proceedings plainly did influence their decision. No doubt, like most experienced administrators, they recognised the risk of acting in a way which might embarrass the handling of or be inconsistent with the outcome of the current proceedings. They accordingly wished to defer action until the proceedings were over. But that had …. nothing whatever to do with the Appellant's conduct in bringing proceedings under the Act. There is no reason to think that their decisions would have been different whoever had brought the proceedings and whatever their nature, if the subject matter was allied. If the appellant was victimised, it is not shown to have been because of her reliance on the Act."

15. Miss Thether referred us through Lord Nicholls passage in his speech at paragraph 30 where he said that two strands were discernible in this passage:

"One strand is that the reason why the officers of the college did not act on the complainant's two requests was the existence of the pending proceedings, as distinct from the complainant's conduct in bringing the proceedings. They wished to defer action until the proceedings were over. The second strand is that the college decisions had nothing to do with the complainant's conduct in brining the proceedings under the 1975 Act. [emphasis added]. The decisions would have been the same, whatever the nature of the proceedings, if the subject-matter had been allied to the content of the employee's request."

16. Miss Thether submitted that in the instant case the Tribunal's findings demonstrated that the threats of disciplinary action allegedly made by the Director of Housing Services were not influenced by the fact that the Appellants had brought grievances under the 1976 Act. What had upset her, she submitted, as the ET found, was the fact that the grievance had been copied to the Housing Corporation at a time when the Respondent had not had any opportunity to deal with it under its own procedures. She submitted that there was no reason to suppose that her response would have been any different if a person raising any other type of grievance had chosen to copy it to the Housing Corporation without first giving the Respondent an opportunity to deal with the grievance internally. Accordingly, she submitted, the Tribunal was entitled to dismiss the Applicant's complaints of victimisation.
17. In that connection she referred us to the decision in Aziz where the Court of Appeal had provided a practical illustration of a case in which a distinction was drawn between the fact of doing a protected act and the way in which the act was done. In that case, the Appellant was expelled from membership of an association of taxicab operators because he had made illicit tape recordings of telephone conversations with the aim of collecting material which might be useful if he brought a complaint under the 1976 Act. Slade LJ, giving the judgment of the court, said:

"On the other hand the findings of the industrial tribunal make it clear that the mere fact that the complainant had, as it happened, made these recordings with the purpose of collecting material which might be useful if and when he sought redress under the race relations legislation had no bearing at all on T.S.T's decision to expel him from membership. That decision had been taken because its members, or the majority of them, considered that the making of secret recordings had been underhand action and a breach of trust. On the findings of fact of the industrial tribunal, it seems clear that T.S.T's decision would have been the same, even though the claimant's purpose in making the recording had nothing to do with the race relations legislation."

and later in the judgment:

"In the present case the evidence does not establish that the fact that the recordings were made by the complainant by reference to the race relations legislation in any way influenced T.S.T. in expelling the complainant from membership."

Miss Tether accepted that the decision of the House of Lords in Nagarajan had disapproved dicta in Aziz which suggested that Section 2(1) requires a conscious motive, but she submitted that the House did not suggest that Aziz was wrongly decided. Indeed, she submitted, the ratio of the Court of Appeal's decision in Aziz was entirely consistent with the approach by the House of Lords in Khan.

18. Mr Thacker has submitted that the findings of fact, which Miss Tether says are to be found in the decision, may perhaps be inferred that they are not spelled out and he criticises the decision, we think rightly, in that connection. However, looking at the four corners of the decision we are satisfied that, as the Tribunal found, what was really at issue and was the matter of concern, was the method by which the grievance had been made and not the grievance itself.
19. It that connection, Miss Tether dealt with the less favourable treatment aspect of this aspect of race relations. She pointed out that in Khan, the House of Lords confirmed that the appropriate comparator in a complaint of victimisation was not a person who has not done a protected act or an act of a similar kind. The application of that principle in this case, she submitted, points to the conclusion that the appropriate comparator would be an employee who had not raised any grievance with the Respondent. It is axiomatic that such a person would not have been advised of the possibility of disciplinary action. She said that it was for that reason that the Respondent had conceded in the Tribunal that less favourable treatment was made out although it did not accept that the Appellants had suffered any detriment. As Lord Hoffman had pointed out in Khan at paragraph 53:

"A person may be treated less favourably and yet suffer no detriment."

Accordingly, she submitted, the Employment Tribunal did not err in law in its approach to the question of less favourable treatment, a test to which they referred.

20. Miss Tether addressed the question of 'Did the Appellant suffer a detriment?' The Respondents had contended before the Employment Tribunal that the Appellants had not suffered any detriment within the meaning of Section 4(2)(c) of the 1976 Act because the threat of disciplinary action of which they complained had not been acted upon. It would appear from the final paragraph of the decision where the Employment Tribunal found as a fact that neither threat was acted upon, that the Tribunal did accept this contention. If and insofar as it may be contended that this was not one of the grounds relied upon by the Tribunal, then she submitted that it constituted an additional ground for upholding their decision.
21. Miss Tether referred us to the meaning of the term 'detriment' as considered in Khan and Garry v London Borough of Ealing [2001] IRLR 681. In Khan, Lord Mackay had approved the approach of the Court of Appeal in De Souza v Automobile Association [1986] ICR 514. They had held that the question to be asked was whether the reasonable worker would or might take the view that he had been disadvantaged by the circumstances in which he had thereafter to work. She pointed out that Lord Hoffman had approved Ministry of Defence v Jeremiah [1980] QB 87 where Brightman LJ had said that:

"a detriment exists if a reasonable employee would or might take the view that [the] treatment was in all the circumstances to his detriment." [see paragraph 53]

22. Miss Tether submitted that the important passages in De Souza were summarised and approved in the recent Court of Appeal decision in Garry (paragraphs 22-25) and submitted that no reasonable employee would, on receipt of the letters of 13 April 1999 and 28 May 1999, consider that he or she had been disadvantaged in the circumstances in which he or she had thereafter to work. The letter of 13 April, she submitted, merely stated that the Director of Housing Services would have to consider invoking disciplinary action if the Appellants did not agree to meet her individually. In the event she agreed to meet them collectively, so that the need for such consideration did not arise. The letter of 28 May stated that the method which the Appellants had used to raise their grievance was unacceptable and that, if it were to happen again, would be investigated as a disciplinary issue. She submitted that no reasonable employee could object to being advised that grievances should not be copied to third parties before any attempt had been made to initiate internal procedures.
23. We found these submissions to be correct in law and applicable to the facts. In the circumstances we found that we agree with the decision of the Employment Tribunal, although we would have wished that rather more flesh had been put on the findings of fact than have in fact been made. We consider that Mr Thacker, having drawn our attention to very many of the paragraphs, particularly in the speeches in Khan and Nagarajan, has done his best to show a hole in the Employment Tribunal's decision which does not in fact exist. The finding could have been made more clearly but in our judgment none of the grounds of appeal in this case succeeds. Accordingly, we dismiss this appeal.