Appeal No. UKEAT/0069/11/SM
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At
the Tribunal
On
23 June 2011
Before
THE
HONOURABLE MR JUSTICE KEITH
(SITTING ALONE)
LONDON BOROUGH OF WALTHAM FOREST APPELLANT
MR
E MARTIN RESPONDENT
Transcript of Proceedings
JUDGMENT
SUMMARY
RACE DISCRIMINATION – Discrimination by other bodies
The Claimant was employed by the local authority as well as being
a local resident. In its capacity as a prosecuting authority, the local authority
brought criminal proceedings against the Claimant in his capacity as a local
resident over his claims for housing benefit and council tax benefit. In its
capacity as his employer, the local authority gave the Claimant in his capacity
as an employee a final written warning to last for 2 years for making false
claims for benefit. The Claimant alleged that the decision to prosecute him
(and not to impose an administrative penalty instead) and the length of his
warning amounted to acts of race discrimination. It was held that the alleged
acts of discrimination to prosecute him (and not to impose an administrative
penalty instead) could not amount to acts of discrimination in the employment
field, and that the Employment Tribunal had no jurisdiction to consider them.
THE HONOURABLE MR JUSTICE KEITH
Introduction
1.
The Claimant, Easton Martin, is black. He was employed at part time by
the Respondent, the London Borough of Waltham Forest, as a bus driver in 1997.
He was given 12 weeks’ notice of his dismissal on
15 January 2010. On 11 April 2010 Mr Martin presented
a claim to the Employment Tribunal. It included complaints of unfair
dismissal, breach of contract, sex discrimination, disability discrimination
and race discrimination. The complaint of disability discrimination was
subsequently withdrawn, and on 3 June 2010 Mr Martin was
reinstated in his employment following an internal appeal. A pre‑hearing
review of his claims took place at the East London hearing centre on
3 November 2010. Following that hearing,
Regional Employment Judge Lamb ordered that the complaints of
breach of contract and sex discrimination, as well as the complaints of unfair
dismissal, be struck out.
2.
Mr Martin’s sole remaining complaint, of race discrimination, was
refined at that hearing, and three acts of discrimination were identified. The
council argued that two of them could not amount in law to discrimination of
the kind that the Tribunal had jurisdiction to consider, and it argued that
those allegations within Mr Martin’s complaints of race discrimination
should be struck out. The Employment Judge refused to strike them out, and
although he held that the complaint in respect of all three acts of race
discrimination had not been presented within the relevant time limits, he ruled
pursuant to section 68(6) of the Race Relations Act 1976
that it was nevertheless just and equitable for the Tribunal to consider it.
The effect of that was that Mr Martin’s complaints of race discrimination
would proceed to a full hearing on its merits in respect of all the acts of
discrimination which Mr Martin had identified. The council now appeals
against the Employment’s Judge’s refusal to strike out the parts of the
complaints of race discrimination which it claims should have been struck out,
as well as the Employment Judge’s ruling that it was just and equitable for
Mr Martin’s complaints of race discrimination to be considered by the
Tribunal. There is no cross‑appeal by Mr Martin.
The facts
3.
Mr Martin lived in Waltham Forest. In his capacity as a local
resident rather than as an employee of the council he was receiving housing
benefit and council tax benefit. There came a time when he was investigated by
the council for claiming benefits to which he was not entitled. The allegation
arose out of an historical anomaly. Part‑time bus drivers had not been
paid weekly bonuses, unlike their full‑time counterparts. That was
rectified in August 2003; part‑time bus drivers were awarded a pay
settlement which resulted in them receiving bonuses backdated to
August 2000 and being entitled to bonuses in the future. The backdated
bonuses were paid to Mr Martin in August or September 2003 and from
then on he received bonuses as and when they became payable. The allegation
for which Mr Martin was being investigated was that he did not declare to
those administering the benefits either the backdated bonuses which he had
received or the increase in his income in the future. Following this
investigation it was decided that Mr Martin should be prosecuted for
benefit fraud. That decision, and the subsequent instigation and pursuit of
the criminal proceedings against him, constituted the first act of race discrimination
alleged by Mr Martin. The allegation is that the person who made that
decision was Paul Verdin, the Manager of Internal Investigations within
the council’s Corporate Audit and Anti‑Fraud Team (which I shall refer to
as the CAAFT), and that he did that because Mr Martin was black.
4.
The second act of race discrimination of which Mr Martin complains
is linked to it. The council had the power to impose an administrative penalty
on Mr Martin instead of prosecuting him; it decided to prosecute him
instead. That decision is also alleged to have been made by Mr Verdin,
and it is claimed that he made that decision as well because Mr Martin was
black. It is unclear from the papers that I have been provided with when it is
alleged that these decisions were made, but they are likely to have been made
shortly after 2 March 2006, because that was when Mr Verdin
wrote to Mr Martin informing him that the CAAFT would shortly be passing
their investigation papers to the council’s Department of Legal Services to
consider prosecution action; and before 18 September 2006, because
that was when Mr Martin was summonsed to appear before the Magistrates’
Court on 29 September 2006. That rather suggests that the decisions
to prosecute Mr Martin and not to impose an administrative penalty instead
were made by someone other than Mr Verdin. That is a matter for evidence
at the full hearing if these complaints of race discrimination survive the
challenge to the Employment Judge’s decision. If they do, it may be that the
complaints will have to be refined further to allege that the discriminatory
acts consist of Mr Verdin recommending that Mr Martin be prosecuted
instead of an administrative penalty being imposed.
5.
Indeed, I note from paragraph 13 of the Reasons for his decision
that the Employment Judge proceeded on the basis that the CAAFT prepared what
he described as an investigation report. Although I have not been provided
with a copy of it, the Employment Judge said that the investigating officer had
been Neil Casey and that the report was described as having been reviewed by Mr
Verdin. Since that report concluded, according to the Employment Judge, that
there should be a prosecution of Mr Martin, that rather suggests that
Mr Verdin’s role was recommending that Mr Martin be prosecuted rather
than deciding that he should be.
6.
On the other hand, Mr Mike Jervis, a friend of Mr Martin,
who has represented Mr Martin today with great skill, maintains that the
ultimate decision to prosecute lay with the CAAFT, because the function of the
council’s Department of Legal Services was merely to advise whether there was
an arguable legal case for prosecution. Following that, I was told by
Mr Robert Moretto, for the council, that that was correct, and the
allegation therefore is that Mr Verdin played a part in that decision.
7.
The investigation report is relevant for another reason. According to
the Employment Judge, the report stated that, although its objectives were to
establish whether Mr Martin had declared relevant changes to his income
and whether he had committed any offences, it also stated that another of its objectives
was to establish if there was a case to answer under the council’s code of
conduct, which is agreed to be a reference to the code of conduct for the
council’s workforce. The Employment Judge went on to say that the reports
concluded that disciplinary proceedings against Mr Martin should be
considered. In fact disciplinary proceedings were commenced against him, and
it was concluded that he had failed to disclose both the backdated bonuses and
the increase in his income.
8.
In those disciplinary proceedings Mr Martin had argued that he had
not been aware that his backdated bonuses had affected the benefits he
previously received, and that since the council, as his employer, knew about
the increase in his income, he had assumed that the council would have adjusted
his benefits accordingly. When it came to the increase in his income the
Employment Judge expressed the view that it would have been reasonable for
Mr Martin to have thought what he claimed he did. That presupposed that
it was reasonable for Mr Martin to assume that the staff who administered
the benefits knew what the staff who were administering the council’s payroll
were doing, especially in the case of someone who was both an employee of the
council and a local resident. That may be questionable, but that was for the
council to decide in the disciplinary proceedings, and the outcome of those
proceedings was that Mr Martin was issued with a final written warning to
remain on his personal file for two years with effect from 22 March 2007.
It had been accepted that Mr Martin may not necessarily have set out to be
dishonest, but when the opportunity presented itself Mr Martin had decided
not to declare the increase in his income. Mr Martin appealed his final
written warning, but he was notified on 4 June 2007 that his appeal
had been dismissed. The length of the final written warning is the third act
of race discrimination relied upon by Mr Martin. His case is that other
people had such a warning left on their personal file for only one year, and
the reason why his was as long as it was was because he was black.
9.
Mr Martin was committed to Snaresbrook Crown Court for trial. His
trial was due to start on 12 July 2007. It was adjourned for a week
or so because the council, in its capacity as the prosecuting authority, agreed
to offer, and Mr Martin agreed to accept, an administrative penalty
instead. However, the amount of the administrative penalty could not be
agreed, because Mr Martin disputed the council’s assessment of the amounts
of the overpayments of benefit he had received. Accordingly, the criminal
trial was adjourned pending Mr Martin’s appeal against that assessment.
On 17 March 2008 his appeal against the assessment was dismissed by
the Appeal Tribunal.
10.
We can now fast‑forward in time. In common with other members of
the council’s workforce Mr Martin was required to have a clean bill of
health every three years from the Criminal Records Bureau. Mr Martin’s
previous check expired in 5 October 2009, and so Mr Martin was
required to complete the application form authorising the Criminal Records
Bureau to disclose any information about him to the council. Mr Martin
duly completed that application form. Unfortunately, when the Criminal Records
Bureau processed the application and checked Mr Martin’s details on the
Police National Computer, the record of a person with similar identity details
with those of Mr Martin was found. It is not clear why that was. It may
have had something to do with the fact that the council, in its capacity as the
prosecuting authority in the criminal proceedings, had sent Mr Martin the
summonses which had originally required him to appear at the Magistrates’
Court, but which had incorrectly referred to him as “Martin Easton”, not
“Easton Martin”. Those summonses were amended when the error was pointed out
to the council, but, whatever the reason was for the information which the
Police National Computer came up with, the Criminal Records Bureau wanted
Mr Martin’s fingerprints so that he could be eliminated as the person to
whom the entry on the Police National Computer referred to. Mr Martin was
asked to provide them; he refused to do so, on the ground that the request
breached his human rights. That resulted in an impasse; the absence of a valid
authorisation from the Criminal Records Bureau prevented Mr Martin from
carrying out his duties as a bus driver, and disciplinary proceedings were
commenced against him.
11.
In the meantime Mr Martin had appealed to the Upper Tribunal
against the dismissal of his appeal over the assessment of the overpayments
made to him. That appeal was also heard in October 2009. The Upper
Tribunal’s decision was signed on 26 November 2009, and it allowed
that part of Mr Martin’s appeal relating to the assessment of the
backdated bonuses. It held that the backdated bonuses that had been paid to
him had been payments of capital not income, and they should not have been
taken into account in the assessment. However, permission to appeal had not
been given in respect of the assessment of the overpayments, which consisted of
bonuses paid to Mr Martin as income after August 2003, and so the
appeal was remitted to the council for the overpayments to be reassessed in the
light of the Upper Tribunal’s Judgment. In the light of that Judgment the
council decided to offer no evidence in respect of the criminal proceedings,
and when the case was listed again on 8 January 2010 I assume that
verdicts of not guilty were entered, because that is what normally happens when
the prosecution offers no evidence.
12.
I turn finally to the disciplinary proceedings which were commenced over
Mr Martin’s unwillingness to provide his fingerprints. A disciplinary
hearing took place on 13 January 2010 following which he was
dismissed with 12 weeks’ notice, because the council could not continue to
employ him in his current post without a Criminal Records Bureau check. He
appealed against that decision, and that appeal was eventually allowed. He was
reinstated on condition that his duties did not require him to drive or have
any personal contact with service users.
The parties’ cases and the law
13.
I deal first with the council’s contention that the decisions to
prosecute Mr Martin for benefit fraud and not to impose an administrative
penalty instead could not amount in law to acts of discrimination which the
Tribunal had jurisdiction to consider. The Employment Judge described the
argument as being to the effect that the council had been wearing more than one
hat when it came to the acts of discrimination identified by Mr Martin.
It had been acting as the prosecuting authority when pursuing criminal
proceedings in respect of the decision to prosecute Mr Martin and not to
impose an administrative penalty instead, and acting as employer when it came
to the decision to give Mr Martin a final written warning. The Employment
Judge said that he was being asked to disregard the former. He did not state
the basis upon which he was being asked to disregard the former, but he
declined to do so since he thought that:
“The decisions to prosecute and the decisions to discipline were
inextricably linked. Connecting all three of them was the decision that there
had been an overpayment of benefits to Mr Martin and that he was not
entitled to those benefits, which he should have declared.”
14.
Mr Moretto did not represent the council before the Employment
Judge, and it may be that the argument has been developed today in a way that
it was not before the Employment Judge. In a nutshell, an Employment Tribunal
only has jurisdiction over claims of race discrimination under part II of the
Act; part II applies to discrimination in the employment field, and the
council’s decisions to prosecute Mr Martin and not to impose an
administrative penalty instead, even if discriminatory, were, so it is argued,
not in the employment field. He was being prosecuted as a local resident who
was alleged to have failed to declare his true income, not as an employee. Any
claim that the decisions to prosecute him and not to impose an administrative
penalty instead were discriminatory had to be brought in a County Court under part
III of the Act, which applied to discrimination in other fields. The fact that
there was no reference in the Employment Judge’s Reasons to the difference
between parts II and III of the Act rather suggests the argument
was not developed before him in that way, but, since the argument goes to the
jurisdiction of the Tribunal, the fact that the argument may not have been
developed as it is now does not mean that it cannot be developed in this way on
the appeal.
15.
The starting point has to be section 54 of the Act, because that is
the section that gives Employment Tribunals jurisdiction over claims of race
discrimination. Section 54(1) provides, so far as is material:
“A complaint by any person
(‘the complainant’) that another person (‘the respondent’)—
(a) has
committed an act of discrimination against the complainant which is unlawful by
virtue of Part II [...]
may be presented to an industrial tribunal.”
16.
There is no other provision in the Act conferring jurisdiction on
Employment Tribunals over claims of race discrimination, and its jurisdiction
must therefore be regarded as limited to the claims of race discrimination that
are rendered unlawful by part II and the other sections referred to. The
other sections referred to are not material for present purposes. It follows
that Mr Moretto is correct when he argues that the Tribunal did not have
jurisdiction over those aspects of Mr Martin’s claim for race
discrimination that cannot be said to have been acts of discrimination in the
employment field.
17.
Section 4(2) of the Act 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) in the terms
of employment which he affords him; or
(b) in the way he
affords him access to opportunities for promotion, transfer or training, or to
any other benefits, facilities or services, or by refusing or deliberately
omitting to afford him access to them; or
(c) by dismissing
him, or subjecting him to any other detriment.”
18.
Section 4(2) is within part II of the Act, but it cannot be
argued that the phrase “any other detriment” is wide enough to refer to
detriment outside the employment field, because in Shamoon v Chief Constable of Royal Ulster Constabulary
[2003] ICR 337 it was held that the words “any other detriment” in the
equivalent legislation in Northern Ireland, which has identical language,
relates to detriment in the employment field. As Lord Hope said at
paragraph 34:
“The statutory cause of action which the appellant has invoked
in this case is discrimination in the field of employment. So the first
requirement, if the disadvantage is to qualify as a ‘detriment’ within the
meaning of article 8(2)(b), is that it has arisen in that field. The
various acts and omissions mentioned in article 8(2)(a) are all of that
character and so are the words ‘by dismissing her’ in section 8(2)(b).
The word ‘detriment’ draws this limitation on its broad and ordinary meaning
from its context and from the other words with which it is associated. [...]
As May LJ put it in De Souza v Automobile Association
[1986] ICR 514, 522G, the court or tribunal must find that by reason of the act
or acts complained of a reasonable worker would or might take the view that he
had thereby been disadvantaged in the circumstances in which he had thereafter
to work.”
19.
Has this principle been undermined by the recent case of Ministry of Defence v DeBique
[2009] All ER (D) 258? The facts of the case are relatively complicated, but
it was a case in which the employee claimed that she had been subjected to
indirect discrimination on the ground of her sex. The Employment Appeal
Tribunal, Cox J presiding, held at paragraph 135 that it was not
necessary for an employee to prove that a discriminatory “provision, criterion
or practice,” to use the words of section 1(2)(b) of the Sex Discrimination Act 1975,
had to have been applied to her by the employer acting in its capacity as
employer. It should be noted that this was an aside, because the Employment Appeal
Tribunal found at paragraph 138 that the discriminatory provision,
criterion or practice had been applied to the Claimant in its capacity as her
employer. But the important point for present purposes is that DeBique
is not authority for the proposition that because the discriminatory provision,
criterion or practice does not have to be applied by the employer in its
capacity as employer, therefore the detriment to which the employee was
subjected as a result of the application of the discriminatory provision,
criterion or practice does not have to have been in the employment field. That
issue simply did not arise in DeBique because there could not
have been any dispute about whether the Claimant had been subjected to a
detriment in the employment field; she was unable to work because her childcare
responsibilities prevented her from complying with the requirement that she had
to be available for duty 24 hours a day, 7 days a week.
20.
The provisions in part II of the Act have to be contrasted with the
provisions in part III of the Act. Sections 57(1) and (2) of
the Act provide, so far as is material:
“57. (1) A claim by any person
(‘the claimant’) that another person (‘the respondent’)—
(a) has
committed an act of discrimination against the claimant which is unlawful by
virtue of Part III [...]
may be made the subject
of civil proceedings in like manner as any other claim in tort [...].
(2) Proceedings under
subsection (1)—
(a) shall,
in England and Wales, be brought only in a designated county court [...].”
21.
Part III of the Act is headed “Discrimination in Other Fields,” to
contrast it with “Discrimination in the Employment Field,” to which part II
relates. Part III includes section 19B(1), which provides, “it is
unlawful for a public authority in carrying out any functions of the authority
to do any act which constitutes discrimination.” A particular field to which
part III expressly applies is criminal prosecution. That is because
section 57(4), which is in the part of the Act headed “Enforcement of Part
III,” limits the remedies which are available when the alleged discriminatory
act was done by a person in carrying out functions as a public prosecutor and
which is unlawful by virtue of section 19B. It follows that an allegedly
discriminatory decision to prosecute someone for criminal offences is outside
the employment field, and within the field of allegedly discriminatory
decisions made by public authorities, for which the remedy is a claim in the
County Court.
22.
Subject to the arguments advanced today by Mr Jervis, that must
apply in my opinion even in those cases where the public authority happens to
be the employee of the person against whom the prosecution is to be brought. If
it were otherwise it would mean that employees of those public authorities who
have prosecutorial powers would have additional rights over other members of
the public who are prosecuted, because they, unlike the latter, would be able
to pursue claims of discrimination in the Employment Tribunal. It would also
mean that employees of those public authorities, which have other powers (for
example, local planning authorities), would have additional rights over other
members of the public who have their planning applications refused, because
they, unlike the latter, would be able to bring claims of discrimination in
connection with the processing of their planning applications in the Employment
Tribunal. Parliament could not have intended that to happen.
23.
I acknowledge of course that if an employee of an employer that is also
a prosecuting authority is prosecuted by that authority the prosecution might
have an indirect impact on his employment, because the fact of his prosecution
is more likely to come to the attention of his line managers than if his
employer was not the prosecuting authority, and that may result in action being
taken against the employee. In the present case it resulted in disciplinary
proceedings being brought against Mr Martin. It indirectly caused
Mr Martin not to get a clean bill of health from the Criminal Records
Bureau, and it was that which ultimately led to Mr Martin’s dismissal,
even though he was subsequently reinstated. That was one of the points
powerfully made today by Mr Jervis, but in my opinion the fact that the
decision to prosecute may have consequences for the employee’s future
employment does not bring the decision to prosecute within the employment
field.
24.
Two other points were made by Mr Jervis. First, the officers in
the CAAFT were out to get Mr Martin, and Mr Jervis spent some time
this morning attempting to show that their abuse of power, as he characterises
it, was committed in the course of the employment, and they were liable to be
disciplined for that abuse of power by the same disciplinary process as
Mr Martin could be disciplined by as an employee. I do not regard that as
relevant to whether the decision to prosecute Mr Martin and not to impose
an administrative penalty instead were within the employment field. It is
relevant only to whether Mr Martin could bring his claim against the
council rather than against Mr Verdin by virtue of section 32(1) of
the Act, which creates in effect vicarious liability for the statutory tort of
race discrimination.
25.
Secondly, Mr Jervis made the point that the difference between
Mr Martin’s income after August 2003 and the income which he had
declared for the purpose of his entitlement to benefits only emerged when it
was picked up by the computer at the National Audit Office, to which the
council had sent details of Mr Martin’s income (because as an employer it
provided details of the sums paid to its workforce) and Mr Martin’s
benefits, because as a local authority it provided details of the benefits paid
to local residents. The council was informed of that discrepancy, and that was
how the CAAFT came to investigate the benefits that Mr Martin had
received. The discrepancy would not have emerged had Mr Martin not been
on the council’s employment payroll. In my opinion the fact, if it be the
case, that the information that caused the council to decide to prosecute
Mr Martin was only acquired because Mr Martin was its employee does
not bring the decision to prosecute him within the employment field.
Conclusions
26.
For these reasons, I have concluded that the decisions to prosecute
Mr Martin and not to impose an administrative penalty instead were not
capable of amounting to acts of discrimination over which the Employment
Tribunal had jurisdiction. In the circumstances, it is unnecessary for me to
consider an additional argument advanced by Mr Moretto, and not argued
before the Employment Judge or mentioned in the counsel’s Notice of Appeal,
that the decision not to impose an administrative penalty instead of
prosecuting Mr Martin was expressly excluded from section 4(2) of the
Act by section 4(4).
27.
The other issue which the council’s appeal raises relates to the
Employment Judge’s decision that it was just and equitable for the Tribunal to
consider Mr Martin’s complaint of race discrimination even though it had
been presented out of time. The Employment Judge’s decision has now to be
considered in the light of my conclusion that the only act of race
discrimination that Mr Martin alleges over which the Tribunal had jurisdiction
was the complaint that the final written warning which Mr Martin was given
on 22 March 2007 was for two years rather than one. However, it is
simply not possible to tell whether the Employment Judge were to have
considered it just and equitable for Mr Martin’s complaint of race
discrimination to be considered if the only feature of his complaint was the
fact that the warning was too long. That is because, in concluding that it was
just and equitable for Mr Martin’s complaint to be considered, the Employment
Judge focussed exclusively on the acts of discrimination constituted by the
decisions to prosecute him and not to impose an administrative penalty instead,
and the fact that they were inextricably linked with the decision to discipline
Mr Martin. Take away the acts of discrimination over which the Tribunal
had no jurisdiction and there was nothing left for the disciplinary proceedings
in 2007 to be linked with. So with the foundation for the Employment Judge’s
decision having been removed, the Employment Judge’s decision cannot stand, and
has to be reconsidered.
28.
Having said that, there were three features of the case that the
Employment Judge regarded as highly relevant to whether it was just and
equitable for Mr Martin’s complaint of race discrimination to be
considered, but which I regard as highly questionable. First, the Employment
Judge plainly had in mind section 68(7)(b) of the Act, which provides
that, “any act extending over a period shall be treated as done at the end of
that period.” He thought that the decision to prosecute Mr Martin was a
continuing act which continued up to the time when the prosecution came to an
end (that is, on 8 January 2010), and similarly that the decision not
to impose an administrative penalty instead was a continuing act which ended
when the alternative was in fact offered. If by that the Employment Judge
meant an administrative penalty calculated in accordance with the Judgment of
the Upper Tribunal, no such administrative penalty was offered to
Mr Martin.
29.
Had the Employment Judge have appreciated that he would probably have
found that the decision not to impose an administrative penalty continued until
the outcome of the criminal proceedings made that no longer an option; in other
words, also 8 January 2010. Since the ET1 was presented on
11 April 2010, which was only a few days after the expiry of the time
limit for presenting the complaint of race discrimination on the Employment
Judge’s approach, it would have been much easier for the Employment Judge to
find that it was just and equitable for the Tribunal to consider the complaint
than if the delay in presenting it had been the period of almost two‑and‑a‑half
years, from 4 September 2007 (that is, three months after
Mr Martin was told that his appeal against the final written warning had
been dismissed) to 11 April 2010. After all, the extent of the delay
is always going to be a relevant factor when considering whether the time for
doing something should be extended (see, for example, British Coal Corporation v Keeble
[1997] IRLR 336, paragraph 8). What makes me question the Employment
Judge’s approach is that, for the reasons set out by Mr Moretto in
paragraphs 32‑44 of his skeleton argument, I have very considerable
reservations about whether it really could be said that the decisions to
prosecute Mr Martin and not to impose an administrative penalty instead
could be said to be acts extending over a period; all the more so if
Mr Martin’s real case had been that the acts of discrimination had consisted
of the recommendations which Mr Verdin had originally made.
30.
Secondly, the Employment Judge thought that it would be unreasonable to
expect Mr Martin to have commenced proceedings in the Tribunal until he
had the Judgment of the Upper Tribunal on which he could rely, especially as
the Judgment of the Upper Tribunal showed that the council’s belief that
Mr Martin had been overpaid benefits was wrong. That too is a
questionable approach, for the reasons set out by Mr Moretto in
paragraph 47.1 of his skeleton argument; but in any event the council’s
belief that overpayments had been made to Mr Martin was only partly
wrong. The Judgment of the Upper Tribunal established that Mr Martin had
not been overpaid benefits in the years prior to August 2003 but the
decision of the Appeal Tribunal that he had been overpaid benefit in the years
after that stood. It does not look as if the Employment Judge was alive to
that; had he been, his approach to the question of what justice and equity
required might have been rather different.
31.
Thirdly, the Employment Judge said in paragraph 36 of his Reasons
that:
“There is a strong public interest in ensuring that allegations
of discrimination on the grounds of race, especially by a public sector
employer, are properly considered.”
32.
I do not suppose that anyone would disagree with that, but it is
questionable whether that can count as a relevant factor when considering
whether justice and equity required Mr Martin’s complaint of race
discrimination to be considered. I say that for the reason set out in
paragraph 47.2 of Mr Moretto’s skeleton argument.
33.
In the light of all this it is necessary for the Employment Judge to
reconsider whether it would be just and equitable for the Tribunal to consider
Mr Martin’s one remaining complaint of race discrimination. He should
bear in mind that it is not as if Mr Martin was always without legal
advice. The Employment Judge found in paragraph 19 of his Reasons that in
January 2009 Mr Martin was represented by solicitors and had then
what the Employment Judge described as, “access to legal advice on all aspects
of his situation”. Mr Jervis, in his skeleton argument, says that that
was wrong; Mr Martin had had legal advice and representation when it came
to whether he had been overpaid benefits and on the criminal charges, but he
had never had legal advice on any issues relating to his employment. Putting
that to one side, the core point that the Employment Judge will have to address
is whether Mr Martin really had to wait for the outcome of his appeal to
the Appeal Tribunal and then to the Upper Tribunal over whether he had been
overpaid benefits before presenting a complaint that alleged the length of the
final written warning he had received had been infected by discrimination when
compared to people of a different racial group, who had done what he was
alleged to have done but whose final written warning had been shorter. It
could be said that it would not be right for someone like Mr Martin, who
believed that the warning he had was discriminatory, to ignore the three
months’ time limit and wait until the outcome of proceedings which would not
actually decide whether the length of the warning, or anything else for that
matter, had been discriminatory. Moreover, the warning expired on
22 March 2009, over a year before the presentation of the claim.
Having said that, it is not for me to second guess the Employment Judge’s
thinking on the issue.
34.
For these reasons, then, the council’s appeal against the ruling of the
Employment Judge, that the decisions to prosecute Mr Martin and not to
impose an administrative penalty instead were capable of amounting to acts of
discrimination over which the Tribunal had jurisdiction, must be allowed, and I
record that they were not capable of amounting to acts of discrimination over
which the Tribunal had jurisdiction. The council’s appeal against the decision
of the Employment Judge that it was just and equitable for the Tribunal to
consider Mr Martin’s one remaining complaint of race discrimination (namely,
the length of his final written warning), notwithstanding that the timing
before presenting the claim had expired, is allowed as well, and the issue is
remitted to the Employment Judge for him to decide whether, in the light of the
changed circumstances and the terms of this Judgment, it would be just and
equitable for the Tribunal to consider Mr Martin’s one remaining complaint
of race discrimination.
