The Claimant brought 29 complaints to the ET, only one of which succeeded. The ET found that a discussion in an open-plan office about the Claimant's racial segregation complaint, relating to an overgrown pot plant, amounted to victimisation. However, even though it was accepted that the Claimant's complaint was a "protected act" for the purposes of the ultimately successful victimisation claim the ET found that the Claimant acted in bad faith in making the race discrimination complaint arising from the existence of the overgrown pot plant. The ET also failed to adjudicate on the issue of direct discrimination. The Claimant appealed.

The EAT allowed the appeal in part. The ET took into account their finding that despite a protected act, admitted as such by the Respondent being done by the Claimant, that complaint was not genuine in determining a separate complaint of racial harassment; and further the ET had failed to adjudicate on a related complaint of direct racial discrimination. Those two matters were remitted to the same ET for further consideration.

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Appeal No. UKEAT/0063/16/JOJ

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

At the Tribunal

On 17 January 2017

Before

HIS HONOUR JUDGE PETER CLARK

(SITTING ALONE)

KENBATA (APPELLANT)

**

**

WESTMINSTER CITY COUNCIL (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MS NABILA MALLICK (of Counsel)

For the Respondent
MR CHRISTOPHER STONE (of Counsel)
Instructed by:
Tri-Borough Shared Legal Services
Contracts & Employment Team
Kensington Town Hall (3rd Floor)
Hornton Street
London
W8 7NX

HARASSMENT

RACE DISCRIMINATION - Direct

The Claimant's appeal was allowed in part. The Employment Tribunal took into account their finding that despite a protected act, admitted as such by the Respondent, being done by the Claimant (the 2 April 2014 race complaint) that complaint was not genuine, in determining a separate complaint of racial harassment and further the Employment Tribunal failed to adjudicate on a related complaint of direct racial discrimination. Those two matters were remitted to the same Employment Tribunal for further consideration.

1. This case has been proceeding in the London (Central) Employment Tribunal ("the ET"). The parties are Mr Kenbata, Claimant, and Westminster City Council, Respondent. Over seven days in June 2015 a Tribunal chaired by Employment Judge Gordon heard two combined complaints presented by the Claimant. By a Judgment dated 30 June all complaints were dismissed save one (see Judgment, paragraph 3). The Claimant was ordered to pay costs of £10,000. He did not recover his Tribunal fees. Written Reasons were provided on 8 January 2016; although a full oral Judgment with Reasons was delivered on the last day of hearing, 24 June.

1. Against parts of the Judgment adverse to him the Claimant appealed. At a Preliminary Hearing before HHJ Eady QC on 8 June 2016 the appeal was permitted to proceed on the basis of four re-amended grounds of appeal. On that occasion the Claimant was represented by Ms Mallick under the ELAAS pro bono scheme. Hitherto he had represented himself. Mr Stone has represented the Respondent throughout.

1. The Claimant, who self describes as Black British African, was a contractor supplied to the Respondent by an agency, Hayes, from 28 January 2013 until 5 June 2014. His job title was Capital Programme Manager. For present purposes it is necessary to focus on issue 4.11 in the agreed list of issues. Under a heading "Direct Discrimination", that reads:

"By Mr Low and Ms Keiller confronting the Claimant on 03 April 2014 and by the Respondent failing to investigate his complaints of race discrimination as appropriate or at all. In this respect the Claimant compares himself with Miss Denby Mann and Mr Holland for whose complaints a proper procedure was followed."

It may also be relevant to note issue 4.1, which reads:

"By Miss Denby Mann placing a plant on her desk in the office in December 2013 in front of the Claimant and leaving it to overgrow so as to disrupt the Claimant's line of sight and his communications with the majority of his colleagues. In this regard the claimant considers himself to have been less favourably treated than his white colleagues Mr Warden, Mr Bennett."

Those allegations were also relied upon as acts of racial harassment (see paragraphs 6 to 8) and victimisation (paragraph 9) in the list of issues.

1. The factual background to those allegations, as found by the Tribunal in their Reasons, was as follows. In December 2013 Ms Denby-Mann, Support Officer for the team that included the Claimant, placed a pot plant on her desk (paragraph 44). A photograph of that plant was in evidence below and is in my bundle of documents. It is larger than might be expected on an office desk. On 2 April 2014 the Claimant emailed Mr Low, his Head of Department (see paragraph 50). He there suggested, among other things, that the pot plant was a form of racial segregation. In response the next day (paragraph 52) Mr Low queried how the pot plant could be an act of racial segregation. The Claimant responded (paragraph 53) by referring to section 13(5) of the Equality Act 2010 ("EqA"), saying that he was not able to rule out that it was a form of racial segregation as it restricted the ease with which he could hold discussions with colleagues. Human Resources then became involved. Ms Magbagbeola of HR said that the real problem was that the plant had grown too high. She suggested that it was not a race issue. There then followed discussions on 3 April between the Claimant and Mr Low and the Claimant and Ms Keiller, one of the Claimant's line managers. The Tribunal heard evidence from both of those managers as well as from the Claimant.

1. Turning to the Tribunal's conclusions on the pot plant issue and its fallout, they were quite satisfied (issue 4.1) that the positioning of the plant and its growth was not an act of direct discrimination nor harassment directed towards the Claimant (paragraphs 89 and 90). As to issue 4.11, the Tribunal made the following findings: (i) Mr Low discussed the Claimant's pot plant complaint with him in the open-plan office; that was not an act of harassment (paragraph 114); (ii) that complaint was not genuine (paragraph 115); he had withdrawn the allegation to Mr Low (paragraphs 108, 117 and 146); (iii) the Claimant sought to use the EqA as a weapon to discredit Ms Denby-Mann (paragraph 116); however, the open discussion was an act of victimisation, and it ought to have been carried out confidentially (paragraphs 118 and 119). That was the sole complaint on which the Claimant succeeded. It is accepted on behalf of the Respondent that there is no explicit reasoning in relation to the allegation of direct discrimination raised under issue 4.11.

1. It is convenient to consider each of the extant grounds of appeal in turn.

(1) Issue 4.11: Harassment

1. Ms Mallick points out that it was accepted by the Respondent that the Claimant's email of 2 April was a "protected act" for the purposes of the ultimately successful victimisation claim. I note that no remedy was granted for that act of victimisation because the Tribunal found that the Claimant acted in bad faith in making the race discrimination complaint arising from the existence of the overgrown pot plant (paragraphs 152 and 153). Ms Mallick takes the point that the Tribunal was wrong to rely on their finding that the pot plant allegation was not genuine in dismissing the harassment complaint (see paragraph 114). The Tribunal held that the concession by the Respondent that the Claimant's email of 2 April was a protected act meant that it was made in good faith (see paragraph 103).

1. The statutory tort of harassment raises different questions to the tort of victimisation (see section 26 EqA). First, did the employer engage in unwanted conduct related to a relevant protected characteristic - here, race - and did such conduct have the purpose or effect of violating the Claimant's dignity or creating an intimidating, etc, environment for the Claimant (section 26(1))? As to that requirement, the Tribunal was satisfied that the open discussion between the Claimant and Mr Low about that allegation potentially amounted to harassment (paragraph 113).

1. Secondly, in determining whether the relevant conduct had the effect of creating the proscribed environment, section 26(4) requires the Tribunal to take into account (a) the perception of the Claimant, (b) the other circumstances of the case, and (c) whether it is reasonable for the conduct to have that effect.

1. Those provisions were carefully analysed by Underhill P (as he then was) in Richmond Pharmacology v Dhaliwal [2009] IRLR 336. Contained within that guidance is the objective nature of the section 26(4)(c) factor. The application of section 26(4) generally is essentially one of fact for the Tribunal.

1. In this case, the ET found (paragraph 114) that it was not Mr Low's intention to harass the Claimant when he discussed his pot plant complaint in the open-plan office. I can see no basis in law for interfering with that finding (see ground 2 below). However, Ms Mallick's essential point under ground 1 is this: the Respondent having conceded that the pot plant complaint was a protected act, and therefore made in good faith, it was not open to the Tribunal to include, as a factor in determining the effect of the open discussion, their finding that the original complaint was not genuine. That they took account of this factor in considering the harassment claim is clear from paragraph 114.

1. In response, Mr Stone very fairly accepts that it was no part of the Respondent's case below that the original complaint by the Claimant was not genuine. Thus, for example, no cross-examination of the Claimant was directed to that proposition. Neither party, it seems to me, could have anticipated the Tribunal's finding as to genuineness. In these circumstances, I accept Ms Mallick's submission on ground 1. There was an inconsistency between the Respondent's concession as to the protected act and the Tribunal's finding that the pot plant complaint was not genuine, and that fed into their findings as to harassment at paragraph 114 in relation to the effect of the open discussion. That, in my judgment, was an impermissible finding and not a factor that ought properly to have been taken into account.

1. I pause to observe that the same might have been said of the Tribunal's remedy decision on the successful victimisation complaint (see paragraphs 151 and 152). However, there is no ground of appeal in relation to that remedy finding, and therefore it does not fall to be considered by me in this appeal.

(2) Meek Compliance

1. The suggestion here is that the Tribunal failed to give sufficient reasons for its conclusion (paragraph 114) that Mr Low did not intend to harass the Claimant when he held the discussion in the open-plan office about the Claimant's racial segregation complaint. I reject that ground of appeal as formulated. It seems to me that the Tribunal was entitled to express its finding on Mr Low's purpose as it did at paragraph 114 having heard his evidence.

1. Ms Mallick sought to extend this ground of appeal in argument by submitting that on the alternative question of effect under section 26 the Tribunal failed to give sufficient reasons. Again, I disagree. The reasoning is clear. The difficulty is that it takes into account the genuineness factor with which I have dealt under ground 1 above.

(3) Issue 4.11: Direct Discrimination

1. Again, Mr Stone acknowledges that the Tribunal provides no reasoning to explain why this claim under issue 4.11 failed. It raises different questions to the claims of harassment and victimisation and requires separate adjudication. Was the Claimant less favourably treated than the two named comparators under issue 4.11? If so, was that treatment on the grounds of his race? I return to this second successful ground of appeal when considering disposal below.

(4) Costs

1. If the ET Decision as a whole stood, then I see no basis for interfering with the Tribunal's rulings on costs. First, there is a discretion as to whether or not to award fees or a proportion of them paid by the Claimant (Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, Rule 76(4)). Since the Claimant failed on 28 out of 29 separate claims and succeeded on only one, the Tribunal was entitled to decline his application for fees in the sum of £1,200 in its entirety. Secondly, as to the award of £10,000 costs, that represented a small proportion of the Respondent's total costs incurred of around £54,000 and was wholly permissible given the finding that only a small part of the claim could have succeeded (paragraph 168) and the rest could never have succeeded (paragraph 161). In these circumstances the costs award was wholly justified, the Claimant having declined to give evidence as to his means.

1. All that said, the question of costs may have to be revisited for the reason given below in relation to disposal.

1. It follows that the harassment claim under issue 4.11 will require reconsideration by an Employment Tribunal, leaving out of account the genuineness of the Claimant's 2 April 2014 complaint of racial segregation, as will the direct discrimination claim attached to issue 4.11. That requires a narrow enquiry. I am entirely satisfied, contrary to the submissions of Ms Mallick, that it should be carried out, on remission, by the Gordon Tribunal that heard this case over seven days. There is no basis for believing that those two issues will be approached by the original Tribunal in other than a fair and impartial way. Moreover, I direct that the matter will be heard on remission on submissions only. No further evidence is necessary. A one-day hearing will suffice to cover those two issues, any variation to the original Costs Order and any question of remedy, if either or both of the issue 4.11 claims of harassment and direct race discrimination succeed at the remitted hearing. To that extent, the appeal is allowed and the matter remitted to the original Tribunal.

1. Following my Judgment in this case, Ms Mallick makes application on behalf of the Claimant Appellant for the fees incurred in bringing this appeal: that is, the £400 issue fee and the £1,200 hearing fee; a total of £1,600. In response, Mr Stone argues that the Claimant has effectively succeeded on two and failed on two grounds of appeal and therefore a proportional approach should be taken; he suggests that 50 per cent of the fee is appropriate. I propose to attempt to issue a Judgment of Solomon between the two rival contentions. I think the preponderance of the appeal succeeded but certainly not in total, particularly in relation to the important question of costs. In these circumstances, I shall make an order that the Appellant recovers £1,200 in respect of his fees incurred in bringing these appeal proceedings.