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Appeal No. UKEAT/0338/09/RN

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 16 April 2010

Before

THE HONOURABLE MRS JUSTICE SLADE

MR T HARRIS

MRS M V McARTHUR FCIPD

MS E GAYLE (APPELLANT)

SANDWELL & WEST BIRMINGHAM HOSPITALS NHS TRUST (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR B BEDFORD (of Counsel)

Instructed by:
Messrs Huggins & Lewis Foskett Solicitors
5-6 The Shrubberies
George Lane
South Woodford
London
E18 1BG

For the Respondent
MR T SHEPPARD (of Counsel)

Instructed by:
Messrs Mills & Reeve LLP Solicitors
78-84 Colmore Row
Birmingham
B3 2AB

TRADE UNION RIGHTS – Action short of dismissal

VICTIMISATION DISCRIMINATION – Other forms of victimisation

The Employment Tribunal did not err in failing to determine the Appellant's claim under Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 on a balance of probabilities.

The Appellant had also claimed victimisation under the Race Relations Act 1976 by being taken through the disciplinary process and being dismissed. The Employment Tribunal erred in failing to consider as a separate claim of victimisation under the Race Relations Act 1976 being taken through the Respondent's disciplinary process. Being taken through such a process was capable of constituting a detriment.

The case was remitted to the same Employment Tribunal for determination of the claim of victimisation under the Race Relations Act 1976.

1. This appeal by Ms Gayle from the judgment of an Employment Tribunal which dismissed all her claims has been permitted to proceed to a full hearing on 5 out of 16 original grounds of appeal. Those five grounds challenge the dismissal of the Appellant's claim that she was subject to a detriment by reason of her trade union activities contrary to Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 and the dismissal of her claim that she was victimised contrary to the Race Relations Act 1976. A challenge to the dismissal of her unfair dismissal claim is dependent upon the success of her challenge to the dismissal of her claim under Section 146 of the Trade Union and Labour Relations (Consolidation) Act.

1. Mr Bedford for the Appellant rightly condenses the grounds of appeal to two principle grounds. These are that the Employment Tribunal erred in law (1) in adopting the wrong legal test in determining whether the issuing of a final written warning was contrary to Section 146 by requiring the Appellant to show that the final written warning had been issued in bad faith and in failing to decide the issue of breach of Section 146 on a balance of probabilities, and (2), failing to determine in relation to the second set of disciplinary proceedings against the Appellant which ultimately led to her dismissal whether by the initiation and continued prosecution of charges of misconduct the Respondent sought to punish or penalise the Appellant for complaining to an Employment Tribunal of race discrimination. Also in that regard the Appellant challenges the determination of the Employment Tribunal that the initiation and prosecution of charges could not or did not, amount to a detriment.

1. It is unnecessary for the purpose of determining this appeal to go into the facts in detail and rightly neither Mr Bedford nor Mr Sheppard, for the Respondent, did so. Suffice it to say that the Appellant was employed by the Respondent as a midwife from 22 April 2002 to 4 April 2007. She had been a representative of the Royal College of Midwives until 2006 when she became a representative for Unison.

1. The Respondent had a recognition agreement whereby it would permit accredited representatives such time off for trade union activities as was reasonable. Time off would not be unreasonably withheld, but would be subject to the needs of the service. When the Appellant became a Unison representative she was to agree with Eva Parchment of the Respondent the principles which were to apply to time off for her trade union activities. The Appellant accepted that there was a need for this to be done. The Employment Tribunal record that Ms Parchment wanted to discuss with the Appellant the management issue of time out for trade union activities.

1. While Ms Parchment and the Appellant met on a couple of occasions, the Appellant did not attend further meetings with Ms Parchment as requested, and no agreement in principle was reached with her as to the governing principles for time off for her trade union activities. The Appellant sought and obtained from her line manager, not Ms Parchment, permission to attend a union meeting on 2 June 2006. Ms Parchment did not believe that this was a proper permission but matters proceeded on the basis that it was. After the Appellant had attended the union meeting on 2 June 2006 she was subject to a disciplinary charge because she had failed to comply with a management request to discuss management issue, namely the resolution of the process for requesting time off for trade union activities. This charge was found proved and the Appellant was issued with a final written warning.

1. During her employment the Appellant undertook work as a midwife for St Paul's Community Development Trust. On 24 November 2006 she was signed off work as sick and she returned to work in March 2007. While she was off sick she received statutory sick pay but continued to work for St Paul's. She did not notify the Respondent of her work for St Paul's during her sickness absence. This was contrary to the sickness absence procedure which applied to her.

1. On 19 February 2007 the Appellant brought a discrimination claim on grounds of race and trade union activities against the Respondent. A disciplinary procedure was initiated against the Appellant, the Respondent having been put on notice that the Appellant had been working during her sickness absence. A number of charges were initiated against her including fraud and also not reporting her work for St Paul's to the Respondents, contrary to procedure.

1. On 17 April 2007 the Appellant raised a grievance under procedure. This was due to be heard on 20 June 2007 but at her request that hearing did not take place on that day. However, following a disciplinary hearing on that date the charges of fraud were not found proved but the charge of breach of the Sickness Absence Notification Procedure was found proved. Having regard to the final written warning, the Appellant was dismissed. She was notified of that decision on 4 July 2007. On 3 October 2007 she brought a further claim to the Employment Tribunal.

1. Issues for determination by the Employment Tribunal were agreed between the parties. The issues relevant to this appeal included the following, (a) whether or not the Appellant had been subjected to a detriment on the grounds of her trade union activities, in particular by being subjected to the Respondent's disciplinary procedure and being give a final written warning, (b), whether the Appellant had been victimised contrary to Section 2 of the Race Relations Act 1976, in particular whether the disciplinary procedure that she was subjected to was motivated in part or in whole by the fact that she had made allegations that the Respondent was discriminating against other staff and patients on the grounds of their race and (e), whether the Appellant was victimised contrary to Section 2 of the Race Relations Act by being dismissed.

1. The hearing before the Employment Tribunal took about three weeks. The Employment Tribunal spent between 31 March 2009 and 2 April 2009 in chambers deliberating on their decision. The carefully set out Reasons occupy 43 pages. The conclusion of that lengthy hearing and those detailed and lengthy deliberations was as follows in the unanimous judgment of the Tribunal: (1) the Appellant's claims of discrimination and victimisation contrary to the Race Relations Act 1976 are not well founded and are all hereby dismissed; (2), the Appellant's claims that she was subjected to detriments and victimised by reason of her trade union activities contrary to Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 are not well founded and are hereby dismissed; (3), the Appellant's claims that she was dismissed contrary to Section 103(A) of the Employment Rights Act 1996 by reason of having raised a protected disclosure or that she was unfairly dismissed are not well founded and are hereby dismissed; (4), the Appellant's claims that she was dismissed contrary to Section 152 of the Trade Union and Labour Relations (Consolidation) Act 1992 and that she suffered racial discrimination on the grounds of her colour by the treatment of Ms Eva Parchment are dismissed on withdrawal by the Appellant.

1. Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992, Section 146(1)(b) provides as follows:

"A worker has the right not to be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place for the sole or main purpose of

(b) preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalising him for doing so."

1. Section 148 is mentioned for completeness although it has not formed the basis of any ground of appeal and was not raised in the written submissions made in closing in these proceedings. Section 148(1) provides:

"On a complaint under Section 146 it shall be for the employer to show what was the sole or main purpose for which he acted or failed to act."

1. Mr Bedford on behalf of the Appellant submitted that the Employment Tribunal erred in law in failing to apply the correct legal test for determining the Appellant's claim under Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992. In particular, he relies on paragraph 95 of the judgment of the Employment Tribunal and in a passage in which it held that it is:

"[…] well established law as demonstrated from the case of Tower Hamlets v Anthony [1989] IRLR 394 and Stein v Associated Dairies Ltd [1982] IRLR 447 EAT that unless a final written warning has been made in "bad faith" and there are no prima facie grounds for following that procedure, the Tribunal has no power to interfere with the same. We do not conclude that there are any grounds to substantiate that this final warning was made in bad faith. […] We do not conclude therefore that [the Appellant] was subject to the disciplinary process or the final written warning because of or related to her trade union activities."

1. The Appellant contends that the effect of the Tribunal's decision is that a complaint under Section 146 cannot succeed unless a complainant can show bad faith on the part of the employer. It was submitted, although not fully developed by Mr Bedford, that a similar approach to Section 146 should be adopted as is adopted in proceedings under the discrimination Acts. He refers, in that regard, to Woodward v Abbey National Plc [2006] IRLR 677 which is a protected disclosure case and was concerned with whether an act which took place after the termination of employment was within the scope of the legislation. He also relied on King v Great Britain China Centre [1991] IRLR 513.

1. Mr Bedford also contends that Section 146 requires a consideration of whether a complainant has made out his or her case on a balance of probabilities. He contends that the passage quoted from paragraph 95 of the judgment of the Employment Tribunal demonstrates that it applied the wrong approach to the determination of whether the claim under Section 146 had been made out.

1. Mr Sheppard, for the Respondent, contends that the Tribunal's reasons on determination of the claim under Section 146 contain no error of law. It is important not to be selective, as he contends that Mr Bedford has been, in looking at paragraph 95 of the judgment in which the Employment Tribunal deals with the Section 146 claim. It has to be read in context. Mr Sheppard points out that the Employment Tribunal set out the provisions of Section 146, in their section on the relevant statutory provisions at paragraph 10 of the judgment. He contends that the Employment Tribunal did decide the reason why the Respondent gave the Appellant a written warning. The Tribunal made a clear finding that the decision to impose a final written warning was because the Appellant had failed to comply with the management request to discuss management issues, namely the resolution of a process of identifying time out for her to attend trade union activities in order that the clinic could be managed and run properly.

1. Mr Sheppard points out that both before and after the passage upon which Mr Bedford relies the Employment Tribunal make findings that the final warning was issued by reason of a management issue and not because of trade union activities. Since the Tribunal were also considering the question of the fairness of the dismissal and since the Respondents were relying upon the final written warning as a ground for dismissing the Appellant, it was entirely appropriate for them to consider that warning in the context of the well-established authorities of Tower Hamlets v Anthony and Stein v Associated Dairies as to whether or not an Employment Tribunal can go behind a final written warning in considering it in the context of determining the fairness of a dismissal.

1. Accordingly, Mr Sheppard contends that there was no error of law or misdirection in the approach of the Employment Tribunal to its decision dismissing the Appellant's claim under Section 146.

1. It is important to read the decision and Reasons of the Employment Tribunal as a whole. This Employment Tribunal gave careful findings of fact and extensive consideration to them. It set out correctly the law which it had to apply. In paragraph 95, in which it considered the claim under Section 146, it recorded that so far as discussing time out is concerned the Appellant accepted that Eva Parchment wanted to discuss with her a management issue: agreeing time out for trade union activities.

1. Agreeing time out for trade union activities was a management issue. Any disciplinary decision in that regard was not taken because of the Appellant's trade union activities. The Tribunal in terms held that the view Ms Parchment took of the Appellant's attendance at the 2 June 2006 meeting was a management issue and not to do with the Appellant's trade union activities per se. She was concerned about her attendance at the meeting because the Appellant had failed to discuss time out for trade union activities. This was a management issue and was something that needed to be done because of the impact of the absence of the Appellant on the working of the clinic. The Appellant herself accepted this position as recorded above.

1. In addition to that clear finding in paragraph 95 which preceded the passage which is criticised by Mr Bedford, the Tribunal held as follows:

"We do not conclude therefore, that she was subjected to the disciplinary process or the final written warning because of or related to her trade union activities. The decision to impose the final written warning was because the Claimant had failed to comply with a management request to discuss management issues, i.e. the resolution of a process of identifying time outs for her to attend her trade union activities in order that the clinic could be managed and run properly."

1. The Tribunal also held:

"The basic premise remains i.e. that the Claimant would not agree to partake in a one-to-one meeting to discuss on her own admission a management issue with Eva Parchment."

1. In our judgment these are clear findings of fact as to the reason for the final written warning. There is, in our judgment, clear consideration as to whether or not that warning was to do with the Appellant's trade union activities. The Employment Tribunal rejected that contention and found that the warning was given for management reasons, namely that the Appellant failed to comply with a management request to discuss the matter of time outs as time off for trade union activities was called.

1. Since the final warning was relied on by the Respondent in its decision to dismiss, it is unsurprising that the Employment Tribunal set out the cases regarding not going behind a decision to issue a final written warning, namely the Tower Hamlets and the Stein cases. The fact that these were sandwiched between findings regarding the reasons for the warning is not to the point and does not affect the validity of those findings. In our judgment there is no basis for the suggestion that the Tribunal took its decision in relation to the Section 146 claim on an incorrect basis and that it did not do so on a balance of probabilities.

1. In our judgment there was no misdirection or error of law by the Employment Tribunal in its conclusion on the claim under Section 146, and accordingly the appeal against its finding in that regard and the dismissal of that claim is itself dismissed.

1. Mr Bedford contends that the Employment Tribunal erred in its approach in failing properly to consider the claim of victimisation in regard to the initiation and continuance of the second set of disciplinary proceedings which ultimately resulted in the Appellant's dismissal. He contends that the Employment Tribunal erred in concluding that since the fraud charges, which were originally laid against the Appellant were dismissed, there was no detriment suffered by her in that regard. He also contends that the Tribunal erred by making no findings of fact regarding the conduct of David Eno and Gill Hurst.

1. Mr Bedford relies upon his submissions made to the Employment Tribunal which were set out in paragraphs 70, 71 and 84. He draws attention to paragraph 93 of the Reasons of the Employment Tribunal in which the Tribunal said,

"Mr Bedford in his submissions alleges on behalf of the Claimant that the Respondent's instigation of a counter fraud investigation and the raising of fraud charges was a "prime fact" from which an intention to victimise the Claimant could be inferred and also because the Respondent failed to answer the race questionnaire served upon it. We do not agree with these submissions because all of the fraud charges were dismissed by the disciplinary panel. The Claimant was only found to have committed one of the charges against her and that was the one that led to her ultimate dismissal. The Claimant therefore suffered no detriment as a result of those fraud charges she was indeed exonerated from them. Whatever the view may have been of David Eno and Gill Hurst that the Claimant was guilty of these offences, the dismissing panel certainly did not agree with them and made it plain in their reasons for the dismissal."

1. Mr Sheppard, for the Respondent, relies on paragraph 92 in which the Tribunal considers whether the Respondents had victimised the Appellant contrary to the Race Relations Act. He relies on the findings of the Tribunal in relation to the decision to dismiss and that the Tribunal accepted the reasons given by the Respondent for the Appellant's dismissal. The Tribunal held:

"We do not conclude that this was in any way because of any protected acts that she had carried out or that the decision to dismiss her was on racial grounds."

1. Mr Sheppard relies upon the finding in paragraph 93:

"Therefore and for all of the above reasons we conclude that the Claimant has not succeeded in making out her claims of direct race discrimination or victimisation by the raising of any protected acts. On the evidence before us and for the reasons as stated all of her claims of race discrimination and victimisation are not well founded and are therefore all dismissed."

1. Two claims of victimisation are set out in the issues which were agreed between the parties and are recited at the outset of the Tribunal's judgment. The Tribunal clearly considered whether the dismissal of the Appellant was victimisation contrary to the Race Relations Act. It made clear findings and reached a decision that the dismissal was not an act of victimisation. The disciplinary process which led to the dismissal was the subject of a separate complaint of victimisation. In our judgment, the Tribunal should have considered the victimisation complaint in relation to each of the two separate acts; namely the initiation and continuation of the disciplinary proceedings, which included the allegations of fraud as one complaint, and as a separate and second complaint whether the dismissal was an act of victimisation.

1. Further, taking the Appellant through the disciplinary process, whatever its outcome, could as a matter of law be held to be a detriment. In our judgment the Tribunal was in error in concluding that because of its outcome the initiation and continuation of the disciplinary procedure did not constitute a detriment. Accordingly with some reluctance, as this hearing has already occupied so much time and led to the incurring of so much public expense, and has been the subject of very careful and lengthy deliberations by the Employment Tribunal, we are compelled to set aside the decision on victimisation regarding the disciplinary process only. We do not set it aside in regard to the victimisation allegation regarding dismissal. Accordingly the allegation of victimisation by initiating and continuing with the disciplinary process on the second occasion - that occasion which ultimately resulted in dismissal - is remitted for consideration to the same Employment Tribunal. We will hear submissions on the scope of that remission.

1. In remitting this part of the case we do wish the remission to be taken as an encouragement to the Appellant. The remission is made because on balance we conclude that the Employment Tribunal did not give separate consideration to the allegation of victimisation by initiating and continuing the disciplinary process on all counts. We thank counsel for their assistance. We wish to hear submissions now on whether the remission is to be on the existing findings of fact, which in our view it should be, but with submissions by the parties on the question of victimisation in relation to the second disciplinary process. In default of the parties being able to reach agreement on the relevant evidence, the parties are to identify the relevant evidence. The Employment Tribunal would be then requested to provide their notes of that identified evidence.

1. It is a matter of great regret that so much public money and time has been spent on this matter. It must be appreciated that only a small part of the case is remitted on a limited basis. We hope that our remarks will be taken on board.