Martin v Devonshires Solicitors UKEAT/0086/10/DA
Appeal by claimant against dismissal of her claim that she had been victimised and dismissed for making allegations against two partners rather than as a result of her mental ill health. Appeal dismissed.
The claimant was a legal secretary who had a job share. When the other sharer left the company, the respondents arranged that the claimant would work as a "float secretary". The claimant presented a grievance which alleged that she had previously brought sex discrimination proceedings against partners in a previous firm and as a result she was suffering "harassment/victimisation" and being denied job opportunities, making specific allegations of such behaviour against two partners in the firm. The grievance was rejected, on the grounds that the allegations were made in bad faith and in subsequent disciplinary proceedings a report from an occupational health consultant revealed a history of mental ill health, backed by a further report by a consultant psychiatrist. The issue of false allegations was dropped as the respondents concluded they were due to the mental health of the claimant but, following further meetings and appeals, she was dismissed on the grounds that trust had broken down. The subsequent claims in the ET were dismissed, broadly because she had agreed to work as a float secretary and that the specific allegations had never occurred.
In the judgment, Underhill J approaches the issue as a matter of principle, stating at para 22 that
"The question in any claim of victimisation is what was the "reason" that the respondent did the act complained of: if it was, wholly or in substantial part, that the claimant had done a protected act, he is liable for victimisation; and if not, not. In our view there will in principle be cases where an employer has dismissed an employee (or subjected him to some other detriment) in response to the doing of a protected act (say, a complaint of discrimination) but where he can, as a matter of common sense and common justice, say that the reason for the dismissal was not the complaint as such but some feature of it which can properly be treated as separable"
He then reviews the relevant case law on the correct approach to the reverse burden of proof and motive, including Khan, Nagarajan and JFS before concluding that the Tribunal had applied the correct test in finding that it was "not the making of the complaint, which were in the relevant sense the reason for the dismissal."
Appeal No. UKEAT/0086/10/DA
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At the Tribunal
On 17 November 2010
Judgment handed down on
THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)
MR D EVANS CBE
MS S M WILSON CBE
DEVONSHIRES SOLICITORS (RESPONDENT)
Transcript of Proceedings
For the Appellant MR DAVID STEPHENSON (of counsel)
Instructed by: London Discrimination Unit The Co-op Centre 11 Mowll Street London SW9 6BG
For the Respondent MR BENJIMIN BURGHER (of counsel)
Instructed by: Devonshires Solicitors 30 Finsbury Circus London EC2M 7DT**SUMMARY**
C, a legal secretary in a firm of solicitors, as a result of mental illness makes false allegations against partners of discriminatory conduct (contrary to SDA and DDA) – Unwilling to accept that allegations untrue – Medical advice of risk of recurrence – Rs decide to dismiss – Claim of victimisation – Rs accept that allegations made "in good faith" within meaning of s. 4 (2) of SDA and s. 55 (4) of DDA
Claim dismissed by Tribunal, which holds that the true reason for the dismissal was not that the C had made allegations of discrimination but the continuing mental ill health demonstrated by their (unacknowledged) falsity and the consequent risk of further disruptive behaviourAppeal dismissed – The distinction relied on by the Tribunal was valid – **Chief Constable of West Yorkshire Police v. Khan** distinguished – Further held that Tribunal right not to apply a "but for" test: **Amnesty International v. Ahmed** and **R (E) v. Governing Body of JFS** followed – Discussion of terminology of "motivation" in **JFS****THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)** **INTRODUCTION**
- The Appellant was employed by the Respondents, who are a firm of solicitors, as a legal secretary from 20th February 2006 until her dismissal with immediate effect on 24th July 2008. In October 2008 she commenced proceedings against the Respondents complaining of discrimination on the grounds of her sex and of disability (including discrimination by way of victimisation) and of unfair dismissal. The claim was heard by an Employment Tribunal sitting at London Central, chaired by Employment Judge Auerbach, over five days in June and July 2009. By a Judgment and Reasons sent to the parties on 25th August 2009 the Tribunal dismissed all her claims. In this appeal she challenges only the dismissal of her claims based on victimisation – that is, her claims under section 4 of the Sex Discrimination Act 1975 and section 55 of the Disability Discrimination Act 1995 – *and also her claim of *unfair dismissal; but as regards unfair dismissal her claim is based now only on the case that her dismissal constituted an act of victimisation, so that the two bases of claim are in practice co-extensive.
- Before us, as before the Tribunal, the Appellant has been represented by Mr. David Stephenson and the Respondents by Mr. Benjimin Burgher, both of counsel.
- Having regard to the issues raised by the grounds of appeal we need only set out the facts in outline.
- The Appellant initially worked only one day a week, sharing her job with another employee who worked four days. When that employee was dismissed in late 2007 there was a discussion of where that left the Appellant. It was the Respondents' evidence, which the Tribunal accepted, that it was agreed that she would work as a "float secretary" – that is, that there would not be another job-share.
- On 17th January 2008 the Appellant presented a written grievance. It is short. It begins by referring to the fact that she had brought proceedings in the employment tribunal for sex discrimination against a firm of solicitors who had previously employed her and that she understands that they had "informed several partners" (i.e., presumably, partners in the Respondent firm). She then refers in general terms to being denied job opportunities and suffering "harassment/victimisation". The only specific allegations made relate to things said to have been said by two of the Respondents' partners. As to this, the letter reads:
"On 8th January 2008 Mr. James Dunn in front of the whole department said something to the effect that "I should forget things that happened six years ago I was after the Partner's money". I have been called a prostitute by Daniel Clifford in September 2007 and am suffering from victimisation. I have also received comments from Daniel Clifford, and several other Partners."
We should say, by way of anticipation, that it has since been authoritatively established that, while the Appellant genuinely believed in the truth of her allegations, the incidents alleged never in fact occurred and that her belief that they did was the result of mental illness.
- That grievance was investigated by one of the partners, Mr. Billingham. He spoke to Mr. Dunn and Mr. Clifford and to three fellow-employees (Ms. Tilbrook, Ms. Fleming and Ms. Canning) who the Appellant said had witnessed one or both of the two specific incidents alleged. They all denied that anything of the kind had occurred. He also established that none of the partners were aware of any claim brought by the Appellant against her previous employers. He concluded that the Appellant's allegations against Mr. Dunn and Mr. Clifford had been made maliciously and in bad faith. He wrote to the Appellant notifying her that he was dismissing her grievance, but also that, subject to her right of appeal, he would be considering whether to recommend disciplinary action. The Appellant pursued her right of appeal to another partner, Ms. Bradley, but the appeal was dismissed.
- Disciplinary proceedings were then started against the Appellant for making false allegations, but in early February 2008 she went off sick, suffering from stress-related symptoms. She remained off work until her eventual dismissal in July. During that period:
(1) She lodged a number of other grievances. They were mostly described as complaints of discrimination (or victimisation) and focused on the fact that the Respondents had been advertising a vacancy for a full-time legal secretary, contrary to what she said was an understanding that a job-share arrangement would be pursued similar to that which she had enjoyed previously. There was also however a grievance, dated 10th June, about what she said was rude behaviour by Ms. Bradley at the hearing of her grievance appeal in January.
(2) On 13th March 2008 she began proceedings in the employment tribunal – not the present proceedings – complaining of the "Clifford/Dunn incidents" as harassment and victimisation and also of not being offered a continuation of the job-share arrangement.
(3) She had several telephone conversations with Mr. Searle, the Respondents' HR manager. In at least two of these conversations she said that she was feeling suicidal.
- After the Appellant had been away for some weeks the Respondents obtained a report from an occupational health consultant, from which they learnt for the first time that she had a history of mental ill-health. More details were subsequently obtained from her GP, who confirmed that the Appellant "had had a long history of mental health problems relating to depression and anxiety" together with an episode of perinatal psychosis. It was decided to obtain a report from a consultant psychiatrist, Professor Hirsch. His report, dated 8th July 2008, expressed the opinion that the Appellant suffered from a recurrent depressive illness, with psychotic episodes during which she experienced paranoid delusions. In his view the things that she believed that Mr. Clifford and Mr. Dunn had said to her were probably auditory hallucinations. He said:
"I think on the balance of probabilities she was depressed at the time and that her complaints represented psychotic experiences she was having at the time, for which she has no insight. Hearing a voice called in the manner which the papers described and hearing the second partner make the illogical nonsensical remarks she attributes to him were, on the balance of probabilities, symptoms of the recurrence of her psychosis."
He thought that she had recovered from her most recent episode. He said:
"She is employable, but will have a risk of likely relapse at some time in the future. If these episodes are treated early, she should be able to avoid a major interruption in her work cycle."
He also said:
"Despite the fact that stressful events have preceded some of her episodes, my impression is that the episodes are not precipitated by hugely stressful events, and thus appear to occur spontaneously, occurring without an immediate precipitant."
- Following the receipt of Mr. Hirsch's report Mr. Billingham wrote to the Appellant saying that the Respondents would no longer be seeking to pursue the question of her false allegations as a disciplinary matter because they appeared to be the result of mental ill-health. But he said that he proposed to recommend to the firm that her employment be terminated on the basis of a breakdown of the relationship of trust and confidence between them.
- On 23rd July 2008 the Appellant attended a meeting with the Respondents' Senior Partner, Mr. Hudson, to consider Mr. Billingham's recommendation that her employment be terminated. She was accompanied by a representative from MIND, Mr. O'Kelly. We need not set out everything which occurred in the meeting, but we should note three points:
(a) She insisted that her allegations against Mr. Clifford and Mr. Dunn were true and denied that any proper investigation had been carried out.
(b) On being asked about the fact that the colleagues who she said would have witnessed the behaviour in question did not support her account, she said that they were not telling the truth because they were fearful for their jobs.
(c) She denied that she had said anything to Mr. Searle about feeling suicidal. She maintained that position despite being shown an apparently contemporary note by Mr. Searle recording what she had said.
Later the same day she had a meeting with another partner, Ms. Philp, to discuss her most recent grievances, including the grievance about Ms. Bradley. She maintained that Ms. Bradley had behaved in the way alleged.
- The following day, 24th July 2008, Mr. Hudson wrote to the Appellant giving her notice of dismissal with immediate effect. The letter is long and somewhat discursive, and we need not set it out in full. Its effect can be summarised as follows:
(1) He stated his conclusion, based both on the results of Mr. Billingham's investigation and on Professor Hirsch's report, that the allegations made against Mr. Dunn and Mr. Clifford were untrue.
(2) He pointed out that the Appellant still continued to assert that the allegations were true despite being given every opportunity to acknowledge that what she thought she had heard was a result of her illness. In other words, she had no insight into her condition. In this connection he also drew attention to the fact that she had denied telling Mr. Searle that she was suicidal, notwithstanding clear evidence that she had done so.
(3) He drew attention to Professor Hirsch's opinion that her illness was recurrent and that she was likely to suffer further relapses.
(4) He pointed out that if she returned to work for the Respondents she would inevitably encounter the partners against whom she had made those very serious, and untrue, allegations, and also the colleagues who had declined – she said untruthfully – to support her account. He pointed out that she herself had said that her relationship with Ms. Tilbrook had broken down. He said that that would be stressful for her and bad for her health.
The relevant part of his letter concluded:
"The allegations you made would have had devastating consequences for James and Daniel if they had been proven. Whilst I have considered whether or not it would be reasonable to allow you to return to work in a different department, with great reluctance I have formed the opinion that this would be impossible as I have formed the opinion that this would permit the situation to continue in which they, or other members of staff, could be exposed to further allegations of a similar nature which are untrue but which you believe to be true. Furthermore the fact that you are unable to accurately recollect important conversations, and the fact that your recollection of events generally is not consistent, has led me to form the view that future management of you would be unworkable.
I am also concerned by the fact that you have raised now eight grievances in seven months, a number of these complaints relate to the same matter. A substantial amount of time and internal resources have been spent dealing with the allegations you have made. I believe that this is likely to continue and that this would have a further adverse impact on the running of our business.
Whilst I have considered other options, with some reluctance, having regard to the impact of my decision upon you, I have formed the view that it is simply not possible for us to continue to employ you. As such I share Nick Billingham's view that the relationship between you and Devonshires has irretrievably broken down. After careful consideration I do not believe that there is any option available to me other than to terminate your employment."
- The Appellant exercised her right of appeal. There was a hearing before another partner, Mr. Buckland, on 5th September 2008. The Appellant was again represented by Mr. O'Kelly. Again, we need not give a full summary of what occurred at that meeting. However, it is important to note that the Appellant took issue with Professor Hirsch's report. She said that she had never been psychotic and that the report was "ridiculous".
- Mr. Buckland wrote to the Appellant on 8th September 2008. His letter is summarised by the Tribunal at para. 82 of the Reasons as follows:
"He said that the breakdown in trust and confidence commenced with the Claimant's original allegations which were not corroborated by any witness. He accepted in light of the medical evidence that the Claimant believed these allegations to be true, but this gave rise to a serious concern that similar allegations may be made in the future 'which you believe to be true but which are not'. It was further of concern that the Claimant was unwilling to recognise that these allegations could have been symptomatic of her condition. These concerns were exacerbated by conversations she denied having with the Human Resources Manager [i.e. Mr Searle]. The nature of her original allegations were extremely serious and 'if proven would have had the potential of ruining careers and lives'. If similar allegations were made in the future the firm would have to investigate them thoroughly. He was concerned that the Claimant would not in the future be able to differentiate between things she believed to be true and things that actually were true 'and that this will make management of you impossible'. Her additional grievances were further evidence of the difficulties that there would be in managing her."
He went on to deal with certain particular points to which we need not refer. His ultimate conclusion was that, whether or not the Claimant was disabled, there had to be trust and confidence between the firm and its employees and he upheld Mr. Hudson's decision, which he believed was in the best interest of the firm, its employees and the Appellant herself.
- The Appellant commenced the present proceedings on 21st October 2008. Shortly afterwards her earlier claim was heard by an employment tribunal sitting at London Central chaired by Ms. Lewzey. By a judgment sent to the parties on 29th December 2008 her claim was dismissed in its entirety. Relevantly for present purposes, the Tribunal made findings (a) that, contrary to her case, the Appellant had agreed in late 2007 to work as a "float secretary"; and (b) that the "Dunn/Clifford incidents" never took place. It was common ground before the Tribunal in the present case, and before us, that it was bound by those findings of fact.
- Section 4 of the 1975 Act provides, so for as material, as follows:
"(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 the person victimised intends to do any of those things, or suspects the person victimised has done, or intends to do, any of them.
(2) Subsection (1) does not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith.
(3) … "
Acts of the kind specified at (a)-(d) under sub-section (1) are generally described as "protected acts". Section 55 of the 1995 Act is in the same terms (save that the "bad faith" exception is in sub-section (4)).**THE TRIBUNAL'S DECISION AND REASONS**
- The Tribunal's Reasons are well-structured and clearly expressed. Following its findings of primary fact and summary of the relevant law it dealt at paras. 97-139 with the claims of "primary" disability discrimination (i.e. as opposed to discrimination by way of victimisation). Since these are not challenged we need not give a comprehensive summary of the reasoning. We would only note four points:
(1) At para. 122 the Tribunal held that the duty under section 4A of the 1995 Act to make reasonable adjustments did not oblige the Respondents to continue the Appellant's employment. It said:
"… [P]articularly having regard to the Claimant's consistent denials at all stages of the possibility that she was mistaken about the Dunn/Clifford allegations, and of the possible impact of her health condition in the future, as well as what we agreed with the Respondent would be the serious practical implications of a recurrence, and what we agreed would be the real problem of recurring contact with the same individuals, we concluded that it would not be reasonable, in all the circumstances of the case, for the Respondent to have had to allow the Claimant to return to work, whether or not with a warning, and on the other terms that she suggested, rather than deciding to dismiss her when they did."
(2) At para. 135 it held that Mr. Hudson and Mr. Buckland took the decisions that they did for the reasons set out in the letters of 24th July and 8th September 2008.
(3) It expressed its reason for dismissing the Claimant's claim of direct disability discrimination as follows (para. 137):
"… [W]e were satisfied that anyone, whether or not disabled, who had made the same false allegations, or ones of similar gravity against colleagues, exhibited the same unwillingness to recognise that she may have been mistaken, presented (for whatever reason) the same risk of repeating such behaviour, presented logistical issues, in terms of management of her contact with those falsely accused and alleged witnesses, and the same potential risk to management of time and cost in dealing with any future false grievances, would have been dismissed by Mr. Hudson, whose decision would have been upheld by Mr. Buckland. In short we were satisfied that it was these attributes and features of the Claimant and her behaviour that were the reason for her dismissal, and not the fact that she was disabled, or any form of stereotypical assumption made about her disability."
(4) The claim of disability-related discrimination foundered on the rock of London Borough of Lewisham v Malcolm  IRLR 700, though it seems that it would have failed in any event in view of the Tribunal's findings on the reasonable adjustments issue.
- The victimisation claim, which is what we are concerned with in this appeal, is dealt with at paras. 140-152 of the Reasons. Para. 140 deals with the identification of the protected acts relied on by the Appellant. These consisted of the original grievance letter dated 17th January 2008 and those of the further grievances referred to at para. 7 (1) above which made explicit claims of unlawful discrimination. Those grievances prima facie constituted protected acts, but that would not be the case to the extent that the allegations made in them were false and not made in good faith: see section 4 (2) of the 1975 Act and section 55 (4) of the 1995 Act as set out above. The Respondents did not originally plead any such case, but in the course of the hearing before the Employment Tribunal Mr. Burgher applied for permission to amend in order to do so. The Tribunal decided that it would give such permission but only on the basis that there was an adjournment to allow the Appellant to obtain evidence relevant to the case as so amended. In those circumstances the Respondents decided not to proceed with the issue. It follows that the acts relied on are indeed "protected acts".
- It is necessary to set out most of the remainder of the relevant paragraphs in full:
"141 Mr Stephenson submitted that as matter of fact it was plainly the case that the Claimant's prior grievances, and in particular the Dunn/Clifford grievance, had been a factor in the decision to dismiss the Claimant. Mr Hudson, for example, referred specifically to the allegations against Messrs Dunn and Clifford more than once in his letter, and also generally to the other grievances the Claimant was said to have raised by the time he wrote it. He referred to the allegations against Messrs Dunn and Clifford having had potentially devastating consequences for them, if proven. He confirmed in cross-examination before us that the passage of his letter in which he referred to the risk of further allegations "of a similar nature" being made, was referring to further allegations of a similar nature to those made against Messrs Dunn and Clifford.
142 Mr Stephenson said that, the fact that the making of these grievances had formed an element of the reasons for dismissal, and for not upholding the Claimant's appeal, coupled with the fact that they were protected acts, meant that the claims of victimisation must succeed. It was not necessary for them to be the sole or indeed the main reason. Indeed at one point he said that the appropriate approach to apply was a "but-for test", citing James v Eastleigh Borough Council  2 AC 571. He also relied on Derbyshire v St Helens Metropolitan Borough Council  IRLR 540, in which the House of Lords had repudiated the suggestion that there could be an "honest and reasonable" employer defence to a claim of victimisation, said to derive from Chief Constable of West Yorkshire Police v Khan  IRLR 830.
143 Mr Burgher did not dispute that, as a matter of fact, matters relating to the prior grievances, including the Dunn/Clifford grievance, formed part of the reasons for the Claimant's dismissal. He also did not resist the proposition of law, that there is no defence to a claim of victimisation that the employer has taken the steps of a reasonable and honest employer. However Mr Burgher said that, in deciding whether the Respondent had treated the Claimant less favourably "by reason that" she had alleged contraventions of the 1975 or 1995 Acts, the Tribunal should not apply a but-for test, but ask itself what were, in fact, the effective grounds of the decision to dismiss the Claimant. This was the approach adopted in Nagarajan v London Regional Transport  1 AC 501 and Khan, and left undisturbed by Derbyshire.
144 The salient finding of fact that Mr Burgher invited us to make in that regard was that what had influenced the Respondent was the seriousness of the allegations, in particular against Messrs Dunn/Clifford, the number of such allegations, the tendency to make such allegations out of the blue or in a repetitive fashion, the fact that the allegations were untrue, the fact that the Claimant could not and would not recognise this, the risk of repetition, and the practical consequences in terms of cost and time of having to deal with such grievances. What Mr Burgher invited us to conclude was not a material consideration for the Respondent, however, was the fact that the allegations included claims of disability or sex discrimination. Putting the matter another way, the appropriate comparator was someone who had made allegations of the same gravity in terms of the substantive content, of the same falsity, with the same frequency, and so forth, but without reference to either of the discrimination statutes. Such an individual, he said, would also have been dismissed.
145 Mr Stephenson said that, even if we were to make the finding of fact for which Mr Burgher contended, it was not permissible, in law, to divorce the feature of the allegations that they had been made by reference to unlawful discrimination, from the other features on which the Respondent's partners said they had relied. In any event, he resisted the finding of fact that the reference to unlawful discrimination had not been a salient feature in the Respondent's considerations.
146 We were satisfied that the correct legal test to apply is not a simple "but for" test. Any misunderstanding on this point, caused by the framing of certain passages in the speeches in James, has long since been laid to rest by later decisions including Nagarajan and Khan. What is required is a consideration of the substantive or operative reasons for the actions of the alleged victimiser, although it is trite law that the protected act does not have to be the sole or main reason. It is also plainly correct that there is no "reasonable and honest" employer defence; just as it is well-established that the fact that an employer may have had some laudable or well-meaning motive for its actions cannot justify direct discrimination on proscribed grounds.
147 However, we considered that Mr Burgher was correct to say that, in order to form a proper view of what were the operative reasons for the employer's actions, the Tribunal may, as part of the factual enquiry, have to examine what it was about a particular grievance, or the way in which it was advanced, or the circumstances surrounding it, which formed part of the employer's reasons, in order to discern whether or not the fact that the grievance alleged unlawful discrimination, played any material part in the employer's reasons. This exercise is not only not prohibited by any legal principle, it is a necessary part of the enquiry, where the employer contends that it was particular aspects of an action that affected its reasons, but not others. In particular, it is the specific making of the allegation of contravention of a discrimination statute (whether or not the allegation so states) which is the thing which the prohibition on victimisation protects.
148 Although Mr Stephenson focused on passages in Derbyshire which refer to the point of view of the employee, these particular passages relate to the matter of detriment. There was no dispute in this case that dismissal was a detriment. However answering the "reason why" question requires, where the answer is not self-evident, an examination of the employer's reasons (conscious or subconscious). As the House of Lords noted in Derbyshire, the underlying objective of the victimisation legislation is to ensure that employees are not deterred from pursuing their statutory rights or punished for having done so. So, the statutory purpose may be said to have an employee focus, because the rights are those of the employee; but the prohibition to which it gives rise, still focuses on the employer's reasons for action, as well as their detrimental effects.
149 In the present case we were satisfied by the Respondent's witnesses' evidence that there were not one but several things about the Claimant's behaviour in relation to the grievances and about the nature of those grievances that contributed to their decision to dismiss, all of which owed nothing to the fact that the grievances raised specific allegations of sex or disability discrimination.
150 Mr Hudson, in evidence, denied in terms that the fact that reference had been made to discrimination in the grievances had any material bearing on his decision. We accepted his evidence as true. In relation to the Dunn/Clifford allegations we accepted that Mr Hudson was particularly concerned by what he saw as their serious nature and the potential implications for them, had they been true. We were satisfied that he would have been as concerned by allegations of equal seriousness, in terms of the alleged remarks, without reference to unlawful discrimination. We also accepted that he was concerned by, as he saw these matters: the frequency of the grievances, their repetitive nature, and that they were all untrue; that the Claimant would not countenance the possibility of having been mistaken, and the potential implications of the demands on the firm's resources and its duty to other employees if the Claimant had remained employed and then gone on to make further equally serious and untrue allegations in the future. We accepted that he would have held these concerns with the same force had the grievances not referred to discrimination, but otherwise exhibited all of these same features. We also accepted from Mr Hudson that the fact that the Claimant had begun a Tribunal claim against the Respondent for discrimination played no part in his decision. We accepted that the same was true of Mr Buckland in relation to his decision on the appeal."
- It will be seen that the Tribunal in its reasoning rightly looked behind the blanket label of "breakdown of trust and confidence" used by the Respondents, which tends to be unhelpful in cases of actual dismissal (cf. our observations in [McFarlane v Relate Avon]()  ICR 507, at para. 39 (p. 523)), and sought to analyse the reason for the Appellant's dismissal with specificity. It acknowledged, as it was bound to do in the light of the terms of both Mr. Hudson's dismissal letter and Mr. Buckland's reasons for dismissing her appeal, that the fact that she had made complaints of sex and disability discrimination, in the initial "Dunn/Clifford grievance" and the series of subsequent grievances, formed part of the facts relied on by the Respondents in deciding to dismiss her. But it did not believe that it followed that that was part of the Respondents' "reason" for dismissing her in the sense required by the authorities, and specifically by the decision of the House of Lords in Nagarajan v. London Regional Transport  ICR 877 (which it rightly saw as being "undisturbed" by the later decision in Derbyshire v. St. Helen's Metropolitan Borough Council  ICR 841 – as to this, see [Pothecary Witham Weld v. Bullimore]()  ICR 1008, at para. 18 (p.1020 D-G)). Rather, what the Tribunal sought to determine was what it was about the Appellant's conduct, including the making of those complaints, which motivated the Respondents to dismiss her; and it was that which it treated as their "reason" in the relevant sense. Following that approach it found that the reason had nothing to do with the fact, as such, that the Appellant had made complaints of discrimination, but rather with the facts that those complaints involved false allegations of considerable seriousness, that they were repeated and that the Appellant refused to accept that they were false; the relevance of those facts being, taken together, that they led to the conclusion that she had a mental illness which was likely to lead to unacceptably disruptive conduct in future. To put it another way, it found that the reason for the dismissal was that the Appellant was mentally ill and the management problems to which that gave rise; and that the significance of the complaints was as evidence of that fact. We return below to the question whether that distinction is admissible in law: at this stage we note only that it is central to the Tribunal's analysis.
- The Tribunal dealt with the issue of unfair dismissal at paras. 155-158. It relied on its earlier findings as to the reason for the dismissal (see para. 16 (3) above) and held that that constituted an "other substantial reason" which justified the Appellant's dismissal within the terms of section 98 (1) (b) of the Employment Rights Act 1996 and thus that the Respondents had shown an admissible reason for the dismissal. It held that dismissal for that reason satisfied the test of fairness under sub-section (4). Those conclusions are, as we have said, not challenged on this appeal, subject to the submission that if the dismissal constituted an unlawful act of victimisation it must also have been unfair.
- Five grounds of appeal are pleaded, but before us Mr. Stephenson reduced them to four. All four seemed to us to depend to a greater or lesser extent on one question, namely whether the Tribunal was entitled to make the distinction which we have sought to summarise at para. 19 above, and it is convenient to address that question first.
- We prefer to approach the question first as one of principle, and without reference to the complex case-law which has developed in this area. The question in any claim of victimisation is what was the "reason" that the respondent did the act complained of: if it was, wholly or in substantial part, that the claimant had done a protected act, he is liable for victimisation; and if not, not. In our view there will in principle be cases where an employer has dismissed an employee (or subjected him to some other detriment) in response to the doing of a protected act (say, a complaint of discrimination) but where he can, as a matter of common sense and common justice, say that the reason for the dismissal was not the complaint as such but some feature of it which can properly be treated as separable. The most straightforward example is where the reason relied on is the manner of the complaint. Take the case of an employee who makes, in good faith, a complaint of discrimination but couches it in terms of violent racial abuse of the manager alleged to be responsible; or who accompanies a genuine complaint with threats of violence; or who insists on making it by ringing the Managing Director at home at 3 o'clock in the morning. In such cases it is neither artificial nor contrary to the policy of the anti-victimisation provisions for the employer to say "I am taking action against you not because you have complained of discrimination but because of the way in which you did it". Indeed it would be extraordinary if those provisions gave employees absolute immunity in respect of anything said or done in the context of a protected complaint. (What is essentially this distinction has been recognised in principle – though rejected on the facts – in two appeals involving the parallel case of claims by employees disciplined for taking part in trade union activities: see Lyon v. St. James Press Ltd  ICR 413 ("wholly unreasonable, extraneous or malicious acts" – see per Phillips J at p. 419 C-D) and Bass Taverns Ltd v. Burgess  IRLR 596.) Of course such a line of argument is capable of abuse. Employees who bring complaints often do so in ways that are, viewed objectively, unreasonable. It would certainly be contrary to the policy of the anti-victimisation provisions if employers were able to take steps against employees simply because in making a complaint they had say, used intemperate language or made inaccurate statements. An employer who purports to object to "ordinary" unreasonable behaviour of that kind should be treated as objecting to the complaint itself, and we would expect tribunals to be slow to recognise a distinction between the complaint and the way it is made save in clear cases. But the fact that the distinction may be illegitimately advanced made in some cases does not mean that it is wrong in principle.
- We accept that the present case is not quite like that. What the Tribunal found to be the reason for the Appellant's dismissal was not the unreasonable manner in which her complaints were presented (except perhaps to the extent that Mr. Hudson referred to the fact that some of the grievances were repeated). Rather, it identified as the reason a combination of inter-related features – the falseness of the allegations, the fact that the Appellant was unable to accept that they were false, the fact that both those features were the result of mental illness and the risk of further disruptive and unmanageable conduct as a result of that illness. But it seems to us that the underlying principle is the same: the reason asserted and found constitutes a series of features and/or consequences of the complaint which were properly and genuinely separable from the making of the complaint itself. Again, no doubt in some circumstances such a line of argument may be abused; but employment tribunals can be trusted to distinguish between features which should and should not be treated as properly separable from the making of the complaint.
- Mr. Stephenson submitted that the case of a complainant who makes false complaints is exclusively catered for by the statutory exclusion from protection of complaints brought in bad faith. He said that what the Respondents were trying to do in advancing the contentions which the Tribunal accepted was to wriggle out of the consequences of their deliberate decision not to run a "bad faith" argument: see para. 17 above. We do not accept that. No doubt sections 4 (2) (of the 1975 Act) and 55 (4) (of the 1995 Act) are to some degree exclusive: that is to say, in defending himself against a victimisation claim an employer cannot advance the distinction simply that the real reason for the act complained of was not the making of the complaint but the fact that it was false, since the intention of the legislation is indeed plainly that false complaints will be protected unless made in bad faith. But we do not believe that that "field of exclusion" covers a case like the present, where the falseness of the complaint is the result of mental illness and the reason for the treatment complained of is the perceived risk of future disruptive behaviour on account of that illness. The control mechanism of imposing a bad faith requirement has no application to such a situation.
- We conclude, therefore, that the distinction made by the Tribunal in reaching its conclusion as to the Respondents' reason for dismissing the Appellant ought as a matter of principle to be regarded as legitimate. The distinctions involved may appear subtle, but they are real; and they require to be recognised if the anti-victimisation provisions, important as they are, are to be confined to their proper effect and not to become an instrument of oppression. This is an area of law where, alas, the questions to be answered cannot always be straightforward – not so much because the law is complex as because of the complexities of legislating for the subtleties of human motivation.
- The question then is whether there is anything in the authorities that compels a different conclusion. That is best considered in the context of Mr. Stephenson's specific grounds of appeal, which we consider in turn, using his headings.
- On analysis this ground in fact makes two distinct points. The first is set out in Mr. Stephenson's skeleton argument as follows:
"(10) It is the Claimant's primary submission that the Employment Tribunal erred in its construction of the hypothetical comparator. The correct comparison to be made under DDA s. 55 and/or SDA s. 4 is simply between the treatment afforded to the complainant who had done the protected act and the treatment that had or would have been afforded to other employees who had not done it, and no other features should be factored into the comparison: see paras 24-28 Chief Constable of the West Yorkshire Police v Khan.
(11) It is submitted that the following features were erroneously included in the comparative exercise:
i) the frequency of the grievances,
ii) their repetitive nature, and
iii) that they were all untrue;
iv) that the Claimant would not countenance the possibility of having been mistaken,
v) the potential implications of the demands on the firm's resources and its duty to other employees if the Claimant had remained employed and then gone on to make further equally serious and untrue allegations in the future.
(12) At paragraph 150 the Tribunal goes on to state: 'We accepted that he would have held these concerns with the same force had the grievances not referred to discrimination, but otherwise exhibited all of these same features.' As a matter of law, this misidentifies the comparator. The correct comparator is a person who has not made the allegations at all, not someone who has made allegations of equal seriousness, with the same frequency and repetitive nature but without reference to discrimination. The Employment Tribunal erred by including these features in the comparative exercise."
- Chief Constable of the West Yorkshire Police v. Khan  ICR 1065, on which Mr. Stephenson relies in that passage, was a case where the Chief Constable had refused to supply a reference for an officer who was applying to join another force and who had brought a race discrimination claim against him. The paragraphs relied on are from the speech of Lord Nicholls at pp. 1071-2. They read as follows:
"24. The second ingredient in the statutory definition calls for a comparison between the treatment afforded to the complainant in the relevant respect with the treatment he affords, or would afford, to other persons 'in those circumstances'.
25. As appears from my summary of the authorities, different views have emerged on the correct way to identify the 'others', or the comparators or control group, as they are usually known. One approach is that, to continue with my example, if an employee is dismissed the control group comprises the other employees. The complainant was less favourably treated because he was dismissed and they were not. There may be good reasons for this difference in treatment but, on this approach, that is a matter to be taken into account at the third stage when considering why the employer afforded the employee less favourable treatment. This was the approach adopted in Aziz v Trinity Street Taxis Ltd  QB 463. It was the approach adopted at all levels in the present case. Sergeant Khan was treated less favourably than other employees, because references are normally provided on request and Sergeant Khan was refused a reference. It was also the approach adopted in Brown v TNT Express Worldwide (UK) Ltd  ICR 182.
26. The other approach is that when considering whether a complainant was treated less favourably there should be factored into the comparison features which make the situation of the complainant and the control group fairly comparable. The control group should be limited to employees who have not done the protected act but whose circumstances, in the material respects, are fairly comparable. This approach was adopted by the Employment Appeal Tribunal in Kirby v Manpower Services Commission  1 WLR 725 and by the Court of Appeal in Nagarajan v London Regional Transport  IRLR 73, 76, para 13 (this point was not the subject of the subsequent appeal to your Lordships' House  1 AC 501).
27. There are arguments in favour of both approaches. On the whole I see no sufficient reason for departing from the former approach, adopted by Slade LJ in the Aziz case:  QB 463, p 483. The statute is to be regarded as calling for a simple comparison between the treatment afforded to the complainant who has done a protected act and the treatment which was or would be afforded to other employees who have not done the protected act.
28. Applying this approach, Sergeant Khan was treated less favourably than other employees. Ordinarily West Yorkshire provides references for members of the force who are seeking new employment."
- A short answer to this ground would be that it does not matter how the Tribunal defined the hypothetical comparator if it was right to find that the Appellant was not dismissed by reason of having made a complaint of discrimination. Taking a literal approach to the wording of the relevant provisions, a claimant alleging victimisation, like any form of direct discrimination, has, on the wording of the relevant provisions, to prove both less favourable treatment and that that treatment was on the proscribed ground. Since we have held above (though subject to the further points which we consider below) that the Tribunal was entitled to make the finding that it did about the Respondents' reason for dismissing the Appellant, that is the end of the matter. At para. 25 in the passage quoted from Khan Lord Nicholls explicitly acknowledges that whether there are "good reasons" for the difference in treatment complained of "should be taken into account ... when considering why the employer afforded the employee less favourable treatment".
- However, we are prepared to take the analysis a little further. Although Lord Nicholls, following the structure of the statutory language, treated the question of whether the claimant has been treated less favourably than others as distinct from the question of the reason for that treatment, he subsequently pointed out in Shamoon v. Chief Constable of Royal Ulster Constabulary  ICR 337 that those two questions – "the less favourable treatment question" and "the reason why question" – are "intertwined" and "essentially a single question": see para. 8 (p. 341D). Lord Hope at para. 49 (p. 354 E-G) and Lord Rodger at para. 125 (p. 377 E-H) made essentially similar observations: Lord Hope described the reason why question as "the primary question". Elias P. in Ladele v London Borough of Islington  ICR 387 developed this point, describing the purpose of considering the hypothetical or actual treatment of comparators as essentially evidential, and indeed doubting the value of the exercise for that purpose in most cases – see at paras. 35-37 (p. 395). Other cases in this Tribunal have repeated these messages – see, e.g., D'Silva v NATFHE  IRLR 412, at para. 30 (p. 417) and City of Edinburgh v Dickson (UKEATS/0038/09), at para. 37; though there seems so far to have been little impact on the hold that "the hypothetical comparator" appears to have on the imaginations of practitioners and tribunals. If those cases are right it ought to be possible not simply to bypass the passage in Khan relied on by Mr Stephenson but to tackle it head-on. In our view the reasoning in that passage has in fact no application to the present case. The argument for the Chief Constable in Khan was that he would have refused a reference to any officer who had brought a claim against him, even if the claim had not been a claim of discrimination. To put it another way – this time addressing the "reason why" question – the reason for his refusal was not the subject-matter of the claim but the fact that a claim was being brought at all. It is that distinction which Lord Nicholls was rejecting: see also the speech of Lord Scott at paras. 71-74 (p. 1081 B-G). But the distinction relied on in the present case is a different one: it is, rather, between the making of an allegation of discrimination and some properly separable feature or consequence of that act. We note that in Shamoon Lord Nicholls himself emphasised that the "observations made by myself and others in [Khan] have to be read in the context of the particular issue there before the House": see para. 13 (p. 342E). Lord Rodger made the same point in his speech at para. 130 (p. 379 A-C).
- Mr. Stephenson's second point was specific to the claim of victimisation under the Disability Discrimination Act, section 55 (3) of which provides that where the putative victim is disabled "the disability in question shall be disregarded in comparing his circumstances with those of any other person for the purposes of sub-section (1) (a)". Mr Stephenson submitted that the features of the Appellant's complaint relied on by the Tribunal were features of her disability and accordingly should have been disregarded. We do not agree. The features in question may have been related to her disability and to that extent could in principle be the subject of a claim under the substantive provisions of the Act, specifically by reference to section 3A (1): indeed they were, though the claim failed (see para. 16 (4) above). But that is not the same thing.
- Again, Mr. Stephenson made two submissions under this heading. The first was that the Tribunal was wrong not to apply what he described as the "but for test": see para. 146 of the Reasons. He relied on what he said was the approval of that test by Lord Phillips in R (E) v. Governing Body of JFS  IRLR 136.
- In Amnesty International v. Ahmed  ICR 450 this Tribunal examined with some care the status of the supposed "but for test" said to have been endorsed by the majority (and in particular by Lord Goff) in James v. Eastleigh Borough Council  ICR 554: see para. 37 (pp. 1470-1). We concluded that it could not be regarded as an all-purpose substitute for the statutory language and that in some cases its application would be positively misleading (see p. 1471 A-G). That decision was promulgated after the argument in the present case, and the Tribunal does not seem to have been aware of it; but its approach is entirely consistent with it. We can see nothing in the JFS case which casts any doubt on that approach. The analysis of the statutory provisions adopted by the majority is, so far as we can see, essentially to the same effect as our own analysis in Ahmed: see the judgments of Lord Phillips at paras. 13-23 (pp. 139-141), Lady Hale at paras. 61-64 (pp. 145-6), Lord Mance at para. 78 (p. 148), Lord Kerr at paras. 111-5 (p. 155); and Lord Clarke at paras. 132-145 (pp. 157-9). So far from endorsing the "but for test" as an equivalent to the test in the statute, Lord Phillips said in terms at para. 16 of his judgment that he found it unhelpful.
- Mr Stephenson's second submission was that, to quote again from his skeleton argument:
"the Employment Tribunal failed to distinguish, on the one hand, the grounds for the decision and, on the other, what motivated the decision-maker to make that decision as required by the Supreme Court in JFS".
- It was well-established long before the decision in the JFS case that it is necessary to make a distinction between two kinds of "mental process" (to use Lord Nicholls' phrase in Nagarajan - see at p. 884F) - one of which may be relevant in considering the "grounds" of, or reason for, an allegedly discriminatory act, and the other of which is not. Again, we dealt with this question at some length in Amnesty International v. Ahmed (above) – see paras. 31-36 (pp. 1469-70); and we believe that our analysis there is substantially identical to that of the majority in the JFS case. We need not take up space by repeating what we said in Ahmed or by setting out lengthy passages from the judgments of the majority in JFS. It will suffice to refer to the judgment of Lady Hale. Having referred to the decisions of the House in R v. Birmingham City Council, ex p. Equal Opportunities Commission  IRLR 173, James v. Eastleigh and Nagarajan, she said this:
"61. … As Lord Nicholls of Birkenhead said [in Nagarajan], … 'racial discrimination is not negatived by the discriminator's motive or intention or reason or purpose (the words are interchangeable in this context) in treating another person less favourably on racial grounds. In particular, if the reason why the alleged discriminator rejected the complainant's job application was racial, it matters not that his intention may have been benign'.
62. However, Lord Nicholls had earlier pointed out that there are in truth two different sorts of 'why' question, one relevant and one irrelevant. The irrelevant one is the discriminator's motive, intention, reason or purpose. The relevant one is what caused him to act as he did. In some cases, this is absolutely plain. The facts are not in dispute. The girls in Birmingham were denied grammar school places, when the boys with the same marks got them, simply because they were girls. The husband in James was charged admission to the pool, when his wife was not, simply because he was a man. This is what Lord Goff was referring to as 'the application of a gender-based criterion'.
63. But, as Lord Goff pointed out, there are also cases where a choice has been made because of the applicant's sex or race. As Lord Nicholls put it in Nagarajan, 'in every case it is necessary to inquire why the complainant received less favourable treatment. This is the crucial question. Was it on grounds of race? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job? Save in obvious cases, answering the crucial question will call for some consideration of the mental processes of the alleged discriminator' (pp 510-511). In James, Lord Bridge was 'not to be taken as saying that the discriminator's state of mind is irrelevant when answering the crucial, anterior question: why did the complainant receive less favourable treatment?'
64. The distinction between the two types of "why" question is plain enough: one is what caused the treatment in question and one is its motive or purpose. The former is important and the latter is not. But the difference between the two types of "anterior" enquiry, into what caused the treatment in question, is also plain. It is that which is also explained by Lord Phillips, Lord Kerr and Lord Clarke. There are obvious cases, where there is no dispute at all about why the complainant received the less favourable treatment. The criterion applied was not in doubt. If it was based on a prohibited ground, that is the end of the matter. There are other cases in which the ostensible criterion is something else – usually, in job applications, that elusive quality known as 'merit'. But nevertheless the discriminator may consciously or unconsciously be making his selections on the basis of race or sex. He may not realise that he is doing so, but that is what he is in fact doing. As Lord Nicholls went on to say in Nagarajan, 'An employer may genuinely believe that the reason why he rejected an applicant had nothing to do with the applicant's race. After careful and thorough investigation of a claim members of an employment tribunal may decide that the proper inference to be drawn from the evidence is that, whether the employer realised it at the time or not, race was the reason why he acted as he did ... Conduct of this nature by an employer, when the inference is legitimately drawn, falls squarely within the language of section 1(1)(a)' … ."
In short, you should not look inside the head of the putative discriminator in order to find out his motive (or purpose). But in some cases you may have to do so in order to see what made him act as he did.
- The distinction is real, but it has proved difficult to find an unambiguous way of expressing it. Lady Hale in the passage that we have quoted used the language of causation, and the sense in which she does so is clear enough in context; but in Khan Lord Nicholls warned that the terminology of causation was "slippery" – see para. 29 (p. 1072 B-C) – and it must be used with caution. At one point in Nagarajan Lord Nicholls described the mental processes which were, in the relevant sense, the reason why the putative discriminator acted in the way complained of as his "motivation" (see p. 885 E-F). We adopted that term in Ahmed, explicitly contrasting it with "motive": see para. 35 (p. 1470 E-F). Lord Clarke uses it in the same sense in his judgment in the JFS case: see paras. 137-8 and 145 (pp. 158-9). But we note that Lord Kerr uses "motivation" as synonymous with "motive" – see para. 116 (p. 155) – and Lord Mance uses it in what may be a different sense again at the end of para. 78 (p. 148). It is evident that the contrasting use of "motive" and "motivation" may not reliably convey the distinctions involved – though we must confess that we still find useful and will continue to employ it in this judgment. It may be unsafe to pick on a single term or phrase as a universally applicable synonym for the statutory language of "grounds" and "reason", but tribunals will generally not go far wrong if they ask the question suggested by Lord Nicholls in Nagarajan, namely whether the proscribed ground or protected act "had a significant influence on the outcome" (see at p. 886F). But for a fuller understanding there is no substitute for reading the passages indicated above in Ahmed and, more authoritatively but at greater length, in the judgments of the majority in the JFS case.
- That being the crucial distinction, the question is whether it was properly applied by the Tribunal in the present case. In our view it was. Mr. Stephenson has to say that this was a case where the "reason" for the Appellant's dismissal was that she had made complaints of discrimination, and that the features to which the Tribunal attached importance were simply matters of motive. It follows from what we say at paras. 22-25 above that we do not accept that characterisation. On a proper analysis it was those features, and not the making of the complaint, which were in the relevant sense the reason for the dismissal. It was they, and they alone, which led the Respondents to take that step.
- The Tribunal does not in the passage which we have set out at para. 18 above, or anywhere else in the Reasons, refer explicitly to either section 63A of the 1975 Act or section 17A (1C) of the 1995 Act, which provide, in terms too well-known to require setting out here, for the so-called "reverse burden of proof", or to the decision of the Court of Appeal in Igen Ltd v. Wong  ICR 931, which gives guidance on the effect of those provisions. Mr Stephenson submitted that that showed that the Tribunal had "failed to deal properly with the burden of proof" and had "failed to have due regard to the guidance in Igen Ltd v. Wong".
- This submission betrays a misconception which has become all too common about the role of the burden of proof provisions in discrimination cases. Those provisions are important in circumstances where there is room for doubt as to the facts necessary to establish discrimination – generally, that is, facts about the respondent's motivation (in the sense defined above) because of the notorious difficulty of knowing what goes on inside someone else's head – "the devil himself knoweth not the mind of man" (per Brian CJ, YB 17 Ed IV f.1, pl. 2). But they have no bearing where the tribunal is in a position to make positive findings on the evidence one way or the other, and still less where there is no real dispute about the respondent's motivation and what is in issue is its correct characterisation in law. In the present case, once the Tribunal had found that the reasons given by Mr. Hudson and Mr. Buckland in their letters reflected their genuine motivation, the issue was indeed how that was to be characterised and the burden of proof did not come into the equation. (Cf. our observations in Hartlepool Borough Council v. Llewellyn  ICR 1426, at para. 55 (p. 1448C).)
- Under this head Mr. Stephenson lists a number of facts found by the Tribunal, or which are otherwise said to be undisputed, which demonstrate how serious a finding of sex discrimination would have been for the Respondents generally and Mr. Dunn and Mr. Clifford in particular and how seriously they took it. He also notes that the Respondents did not initially disclose an e-mail sent to all the partners briefing them about the allegations against Mr. Dunn and Mr. Clifford. It is contended that the Tribunal failed to give "due weight" to these facts and that if had done so it would, or at least might, have reached a different conclusion as to the Respondents' motivation.
- This submission is, with respect, hopeless. The weight to be given to the facts found is a matter for the assessment of the Tribunal and save in the case of perversity – which is not and could not be alleged here – gives rise to no question of law.
- For the reasons given above we dismiss this appeal. We wish to pay tribute to the high quality of the Tribunal's Reasons.
Published: 12/12/2010 12:04