Nazir & Anor v Asim & Anor UKEAT/0332/09/RN
Appeal against findings of sexual and racial harassment and discrimination. The claims were brought against 2 members of a board, which was an unincorporated organisation: the Tribunal ruled that it had jurisdiction to hear the claims against the 2 board members in their capacity as representatives of the UA and not as individual perpetrators. 4 of the claims succeeded. The jurisdiction appeal was dismissed. The EATconfirmed that the board members were liable as 'employer' and not through vicarious or secondary liability. Claims of racial and sexual harassment and discrimination were remitted to a fresh Tribunal.
Appeal No. UKEAT/0332/09/RN
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At the Tribunal
On 5 March 2010
Judgment handed down on 29 June 2010
HIS HONOUR JUDGE RICHARDSON
MR C EDWARDS
MR P GAMMON MBE
(1) MR N NAZIR
(2) MR M ASLAM (APPELLANTS)
(1) MRS A ASIM
(2) NOTTINGHAMSHIRE BLACK PARTNERSHIP (DEBARRED) (RESPONDENTS)
Transcript of Proceedings
For the Appellants MR C CROW (of Counsel)
For the First Respondent MR D PANESAR (of Counsel) Instructed by: Messrs Thompsons Solicitors City Gate East Tollhouse Hill Nottingham NG1 5FS
For the Second Respondent NOTTINGHAMSHIRE BLACK PARTNERSHIP (Debarred)**SUMMARY**
SEX DISCRIMINATION – Direct
RACE DISCRIMINATION – Direct
- Unincorporated association – practice and procedure. The Claimant was employed by the management committee of an unincorporated association. By the time of the hearing the only Respondents were (1) the unincorporated association in its own name and (2) two individual members of the management committee alleged to bear responsibility for racial and sexual harassment and discrimination. It was argued that (1) it was impermissible to name the unincorporated association as such, (2) all the members of the committee had to be joined as respondents and (3) the two individuals were not properly on notice that they were joined as members of the committee rather than individual perpetrators. Arguments rejected. It remained good practice to join an individual member of the committee as a representative - Affleck and others v Newcastle Mind and others (1999) IRLR 405 considered and applied. In any event it was permissible, in employment tribunal procedure, for an employee to make a claim against the employing management committee of an unincorporated association using the name of the unincorporated association. Observations on matters to be considered by a Tribunal when managing proceedings where an unincorporated association is a respondent.
- Sexual and racial harassment and discrimination – burden of proof. The Tribunal wrongly applied the burden of proof provisions within the Sex Discrimination Act 1975 and the Race Discrimination Act 1976: Madarassy v Nomura  ICR 867 applied.
- Specific criticisms of individual findings were also upheld.
- This is an appeal by Mr Najeeb Nazir and Mr Mohammad Aslam against a judgment of the Employment Tribunal (Employment Judge Walker presiding) dated 6 May 2009. By its judgment the Employment Tribunal upheld in part complaints of unlawful sexual and racial harassment and discrimination brought by Mrs Aneela Asim arising out of her employment by the Nottinghamshire Black Partnership ("NBP") between 23 November 2006 and 13 June 2007. Mr Nazir and Mr Aslam were members of the Board of NBP. Mrs Asim was the Chief Executive Officer.
- There are two aspects to the appeal. The first aspect relates to the status of Mr Nazir and Mr Aslam in the proceedings. Although NBP adopted the word "Partnership" in its title, and was governed by a Board (of which Mr Nazir and Mr Aslam were members), it was neither a partnership in law, nor a corporate body. It was an unincorporated association (a "UA"). This was the source of some confusion of thought and language in the course of the proceedings. On behalf of Mr Nazir and Mr Aslam Mr Crow submits that his clients were never properly joined as representatives of NBP; that they were joined only as "perpetrators"; and that, having regard to the development of the proceedings and the way the case was put on behalf of Mrs Asim, the claims against his clients must be dismissed.
- The second aspect relates to the Tribunal's findings of unlawful sex and racial harassment and discrimination. Mrs Asim succeeded on just four of the thirteen issues which she raised. On behalf of Mr Nazir and Mr Aslam Mr Crow submits that these findings are unsound in law and based on inadequate reasoning; and he further submits that one finding at least has been made in an unfair manner, in reliance on a matter of which he and his clients had no notice.
- We shall first set out the essential facts underlying the proceedings. We shall then deal separately with the two aspects of the appeal.
- NBP was set up in 2001 to serve the black ethnic minority communities of Nottinghamshire. Various ethnic minority organisations in the Nottingham area were members. Representatives of those organisations were elected to a Board, which was responsible for the running of NBP. Six representatives were elected from the Afro Caribbean community, four from the Pakistani community, four from the Indian community, and four from other communities. At the relevant time Mr Nazir and Mr Aslam were members of the Board; Mr Nazir was a Vice Chair, Mr Aslam was Treasurer. The Chairman was Mr Graham. Mr Graham's ethnicity is Afro Caribbean; Mr Nazir and Mr Aslam are of Pakistani ethnicity. NBP received public funding from the City Council.
- Mrs Asim was first employed by NBP in February 2003 as a Pakistani Support Officer. She is herself Pakistani by ethnic origin. On 5 October 2006 she was appointed as Chief Executive Officer. She retained that post throughout the period with which this appeal is concerned.
- Even prior to her appointment there had been disagreements over the running of NBP. There was, as the Tribunal found, a perception by Mr Nazir and Mr Aslam that they were being excluded from some decisions and undermined by Mr Graham. We emphasise that this dispute was no more than the background to the issues which the Tribunal had to decide. It was no part of the Tribunal's task to decide which side was right, or who was at fault. The Tribunal was at pains to make this clear.
- On 20 November 2006, at the very first meeting of the Board after Mrs Asim's appointment, the dispute came to a head. The meeting broke up acrimoniously. Both during the meeting and in a letter dated 21 November 2006 to members of the Board Mrs Asim was supportive of the Chairman, Mr Graham. The letter was, as the Tribunal found, an entirely appropriate letter for her to have written. It was a heartfelt plea for the organisation to build on good work already done and to move forward collectively, using appropriate rules and guidelines.
- It was Mr Nazir's view that as Chief Executive Officer Mrs Asim should not have taken sides. He made his views known on the telephone on 23 November and 27 November and outside a meeting of another organisation which they both attended on 28 November. These conversations were the subject of important findings by the Tribunal, to which we will return.
- The dispute within NBP continued. There was an "awayday" for the Board on 17 December 2006. Outside the meeting an altercation took place between Mr Nazir and Mrs Asim's husband. But thereafter Mr Nazir did not become involved in Board meetings for 6 months or so; he was an employee of the Council, who asked him to take no part until it decided whether there was a conflict between his position as employee and his position on the Board.
- There was a further Board meeting on 30 January 2007. Mr Aslam, Mr Graham and Mrs Asim all attended. It was a heated and acrimonious meeting; again there was an important finding of Tribunal to which we will return. At that meeting Mr Graham stepped aside temporarily as chairman. Two others – Mr Basi and Ms Wright – were appointed co-chairs. An interim group comprising Mr Basi, Ms Wright and Mr Balchin were appointed to investigate a complaint by Mr Aslam, investigate staff grievances and establish new election processes.
- On 17 January 2007 Mrs Asim had lodged a formal grievance in respect of her treatment by Mr Nazir. On 1 February 2007, following the Board meeting, Mrs Asim lodged a formal grievance against Mr Aslam. These grievances were not resolved by the time, in early July 2007, that Mrs Asim lodged her claim at the Employment Tribunal.
The Tribunal proceedings
- Mrs Asim's ET1 claim form named an official of the GMB as her representative. However she completed the form herself. The form called for her to give "the name and details of her employer or the organisation against which she was claiming". The name and details were given of the "Nottinghamshire Black Partnership". It also called for her, if her complaint was against more than one respondent, to give the names and details of additional respondents. Ten Board members were named. Below their names Mrs Asim said:
"Please note that my grievances are against Mohammad Aslam and Najeeb Nasir. The other Board members are those which are colluding or are standing back, not challenging the injustice. They are being controlled by the two members for voting against or for certain things"
- Mrs Asim complained of sex and race discrimination and harassment. Specifically, she complained that the Pakistani Board members had given her constant harassment since she was promoted. She gave instances of such treatment: these included allegations relating to what transpired on 23 and 28 November and on 30 January. She also said that she had been subject to harassment and discrimination in other ways – by allegations of financial misappropriation, by failure to sign cheques for NBP's work, and failure to deal with grievances. She said that the work of the NBP was being deliberately blocked, to drive staff away with the result that funding would be withdrawn. She said that:
"Asian men have never been able to see an Asian woman in a position of authority – especially Pakistani men in relation to Pakistani women....had I not been a Pakistani woman I would have had much more respect...."
- In response a single ET3 form was filed in the name of "Nottinghamshire Black Partnership and others". The contact name and details given were those of Mr Nazir; but the form also named a representative - a consultancy known as Peninsula Business Services Limited ("Peninsula"). It is plain from the typed grounds of resistance that the writer of the ET3 considered the NBP itself to be a Respondent. Indeed those grounds refer to the NBP as "the Respondent" and Mr Nazir and Mr Aslam as "board members [against] whom the claimant has brought this claim". The grounds denied discrimination; it was accepted that a power struggle had been taking place within NBP.
- On 27 September 2007 a case management discussion took place by telephone. At this discussion Miss Asim was represented by solicitors, the firm of Thompsons (Mr Bacon). NBP and eight individual Board members were represented by Peninsula (Miss Lewandowski). Two individual Board members were represented by a firm of solicitors (Mr Fernandes).
- The case management discussion records the following:
"1.2 Mr Bacon explained that he had felt it necessary to join all of the individual Respondents as he understood that they were the members of the governing body of the First Respondent, which was an unincorporated association. He agreed to amend the Claim Form to make it clear against which Respondents he sought an individual remedy in respect of harassment allegedly committed by them and against which Respondents he only sought a remedy in their capacity as a member of the governing body upon whom liability would fall only in the event of the First Respondent not being able to meet any award to the Claimant.
1.3 Mr Fernandes and Miss Lewandowski agreed to liaise and to examine the governing instrument of the First Respondent to see whether it absolved members of the governing body from personal liability. If it did, Mr Bacon agreed to reconsider the need to have as named Respondents any individual who was not alleged to have personally committed an act of harassment against the Claimant"
- Following this case management discussion by letter dated 19 October 2007 Thompsons withdrew the claims against all Respondents other than the first three. It is not suggested that any governing instrument of NBP absolved members of the governing body from personal liability; so the withdrawal was not in consequence of paragraph 1.3 of the case management discussion.
- On 4 April 2008 a further case management discussion took place. At this time Peninsula still represented the NBP; its representative intimated that there was a question as to whether he would continue to do so for much longer. However, Peninsula's representative said that he no longer acted for Mr Nazir and Mr Aslam, giving the reason that they were no longer on the Board of NBP and could therefore no longer be regarded as clients of Peninsula. Mr Nazir and Mr Aslam represented themselves. The Employment Judge noted the following:
"Mr Bacon for the Claimant confirmed that the only claim against the First Respondent is that they are vicariously liable for the acts of alleged harassment perpetrated against the Claimant by the Second and Third Respondents."
- The Tribunal hearing began on 20 October 2008. Counsel for Mrs Asim was Mr Panesar. Counsel for Mr Nazir and Mr Aslam was Mr Crow. Peninsula had indeed dropped out of the picture; and no-one attended to represent NBP. The hearing lasted for 12 days in all. Mrs Asim, Mr Nazir and Mr Aslam all gave evidence; and there were ten supporting witnesses. Judgment was reserved.
- Mr Crow and Mr Panesar co-operated in the agreement of a list of thirteen issues. They fought the case hard and fairly on behalf of their respective clients. By the end, however, it became clear that each understood the nature of Mrs Asim's case in a different way. We make it plain that neither suggests for a moment that the other was less than genuine. Each accepts that there was a misunderstanding. But each, in the end, says that the other was wrong.
- Mr Panesar, in his closing submissions, confirmed his case to be that although Mr Nazir and Mr Aslam were alleged perpetrators of unlawful treatment of Mrs Asim, there was no claim against them in their personal capacity but rather as representatives of the Board of NBP.
- Mr Crow, however, understood himself to be representing Mr Nazir and Mr Aslam in their personal capacity as alleged perpetrators of unlawful treatment of Mrs Asim. When Mr Panesar said that the claim against them was as representatives of the Board of NBP, he objected that this claim could not be maintained on the basis of the ET1 as it presently stood. He submitted that an amendment would be required to say that the claim was against them as representatives for the Board; and argued that an amendment ought not to be granted. Mr Panesar submitted in response that no amendment was required; the case had always been against Mr Nazir and Mr Aslam as representatives of the Board of NBP; but if necessary he applied for leave to amend. The matter was left for the Tribunal to consider as part of their overall deliberations.
The Tribunal's reasons
- On the question whether Mr Nazir and Mr Aslam were sued as representatives of the Board of NBP, the Tribunal reached the following conclusions:
"5.6 This case appears to have begun on the basis of NBP being named and pursued as the employer and Mr Nazir and Mr Aslam being pursued as personally liable as perpetrators of unlawful treatment, if such it was, of Mrs Asim. Mr Panesar, perhaps reflecting Affleck and the provisions of the Sex Discrimination Act 1975 and the Race Relations Act 1976 in relation to personal liability of employees, third parties and agents, into which none of those categories they fall [sic], confirmed that Mr Nazir and Mr Aslam are not being sued in any of those capacities but rather as representative members of the Board of NBP as Mrs Asim's employers, albeit in that position as being vicariously liable qua employer for their own actions as perpetrators.
5.7 In relation to this question, we find that Mr Nazir and Mr Aslam are representatives of the Board of NBP, and as the only ones in front of us we do have jurisdiction to deal with the allegations against them in that capacity."
- On behalf of Mr Nazir and Mr Aslam Mr Crow accepted that, since NBP was a UA, Mrs Asim was employed by the members of its Board - see Affleck and others v Newcastle Mind and others (1999) IRLR 405 ("Affleck"). He further accepted that as members of the Board Mr Nazir and Mr Aslam could be held liable for the acts of the Board – even acts or omissions for which they were not personally responsible. He submitted, however, that Mr Nazir and Mr Aslam would only be liable in this way if they were sued in their capacity as members of the Board. His argument was that they were not sued in this capacity; rather they were sued as "perpetrators". This, in his submission, had two consequences.
- Firstly, when Mr Panesar, in his closing submissions, said that Mr Nazir and Mr Aslam were not pursued as "perpetrators", the case against them fell away – since they were never sued as representatives of the Board. This he described at one point as a "knock out" argument. Effectively, therefore, the case against Mr Nazir and Mr Aslam could not succeed in the absence of a successful application for leave to amend the basis of the claim.
- Secondly, since his clients were sued as perpetrators and not as representatives of the Board, it was not incumbent upon them to answer complaints of race and sex discrimination or harassment where they were not alleged to be perpetrators. He focussed attention on Mrs Asim's allegation that the Board failed to address her grievances. This, he submitted, was not an allegation which could be laid at the door of either of his clients. Therefore it was not for his clients to address the allegation; and it was irregular and unfair for a finding to be made against his clients on that issue. An application for leave to amend, made at the conclusion of the case, was bound to fail because it was made too late for his clients to address allegations where they were not themselves alleged to be perpetrators.
- Mr Crow submitted that where a claimant was employed by the committee of a UA it was insufficient to name the UA as respondent; it was not a legal entity. He submitted further that it was incumbent upon a claimant to join all the committee members as respondents rather than selected targets. It was a matter for the committee members to determine who should represent them – not a matter for a claimant. Moreover unless all committee members were joined, some might be unaware of their potential liability. In this case, he submitted, some members of the Board might be altogether unaware of their liability. He submitted that in effect the Tribunal had permitted the Claimant to determine which members of the Board should act as its representatives. He questioned how any judgment could be enforced in these circumstances.
- Mr Crow submitted that in substance the Tribunal had granted permission to amend. He submitted that this was an impermissible course for the Tribunal to take – it was too late to allow the amendment and it was procedurally irregular and improper to do so in the absence of notice to the other members of the Board.
- On behalf of Mrs Asim Mr Panesar submitted that Mr Nazir and Mr Aslam, being members of the Board, were correctly sued in that capacity. They (with others) employed Mrs Asim: Affleck. This was the source of their legal responsibility. It was the capacity in which they had to be sued. The claim form had always made it clear that they were sued as Board members, albeit the members who themselves committed acts of discrimination and harassment for whom all the Board would be responsible. Therefore no amendment to the claim form was required; the application he made for an amendment was protective, in case the Tribunal did not accept his main argument.
- Mr Panesar submitted that it was unnecessary for all members of a UA to be joined as parties: he relied on Affleck at paragraph 13. In this case Mr Nazir and Mr Aslam were separately represented. The fact that other members of the Board chose not to be represented at the hearing was a matter for them. The proceedings were not irregularly constituted. Mr Nazir and Mr Aslam had every opportunity to put their case.
- At the close of submissions before us, we invited counsel to make written submissions to us on the practice which is adopted in the High Court and the County Court where claims are made against UAs. Mr Crow drew comfort from the practice of the civil courts; he submitted that it was indeed impermissible for the UA to be sued in its own name; and it was necessary for all members of the Board to be sued in the absence of some form of representative proceedings. Mr Panesar submitted that a different practice was applicable in employment tribunals, where the procedure was and ought to be less formal than in the civil courts. He submitted that it was normal practice, and entirely appropriate, for an employee to bring tribunal proceedings against a UA in its name; that it was not necessary to name every member of the management committee as a respondent; and that the position of an unnamed member of the management committee might be dealt with by declining to allow enforcement of a judgment against that member.
- A UA is a group of individuals linked together by contract. It has no legal identity separate from its members.
- The place of UAs in the law and society of England and Wales was outlined recently by Hughes LJ in R v L and another  1 All ER 786. **We cite the following passage with gratitude as background to the issues we have to consider.
" There are probably almost as many different types of unincorporated association as there are forms of human activity. This particular one was a club with 900-odd members, substantial land, buildings and other assets, and it had no doubt stood as an entity in every sense except the legal for many years. But the legal description 'unincorporated association' applies equally to any collection of individuals linked by agreement into a group. Some may be solid and permanent; others may be fleeting, and/or without assets. A village football team, with no constitution and a casual fluctuating membership, meeting on a Saturday morning on a rented pitch, is an unincorporated association, but so are a number of learned societies with large fixed assets and detailed constitutional structures. So too is a fishing association and a trade union. And a partnership, of which there are hundreds of thousands, some very large indeed, is a particular type of unincorporated association, where the object of the association is the carrying on of business with a view to profit.
 At common law, an unincorporated association is to be distinguished from a corporation, which has a legal personality separate from those who have formed it, or who manage it or belong to it. The most numerous species of corporation is the limited liability company, but there are of course other types, such as chartered professional associations, local government bodies and indeed bishops. At common law, as the judge succinctly held, an unincorporated association has no legal identity separate from its members. It is simply a group of individuals linked together by contract. By contrast, the corporation, of whatever type, is a legal person separate from the natural persons connected with it.
 This is an apparently simple legal dichotomy duly learned by every law student in his first year. But its simplicity is deceptive. It conceals a significantly more complicated factual and legal position.
 As to fact, many unincorporated associations have in reality a substantial existence which is treated by all who deal with them as distinct from the mere sum of those who are for the time being members. Those who have business dealings with an unincorporated partnership of accountants, with hundreds of partners worldwide, do not generally regard themselves as contracting with each partner personally; they look to the partnership as if it were an entity. The same is true of those who have dealings with a learned society, or a trade union, or for that matter with a large established golf club. Frequently, as Lord Phillips CJ pointed out in R v W Stevenson & sons (a partnership) EWCA Crim 273 at ,  2 Cr App Rep 187 at  third parties will simply not know whether the organisation being dealt with is a company or some form of unincorporated association.
 As to the law, it no longer treats every unincorporated association as simply a collective expression for its members and has not done so for well over a hundred years. A great array of varying provisions has been made by statute to endow different unincorporated associations with many of the characteristics of legal personality. Examples selected at random include the following. The detailed special rules for partnerships contained in the Partnership Act 1890 scrupulously preserve the personal joint and several liability of the partners (see ss 5–12), and the Law Commission recommendation in November 2003 that a firm should have legal personality has not been implemented, but the partnership can sue or be sued in its firm name: see CPR 7.2A and 7 PD 5A.3, repeating a rule which has existed for more than a century. A trade union is, by statute, not a corporation: s 10(1) of the Trade Union and Labour Relations (Consolidation) Act 1992. But by the same section it can make contracts, sue and be sued in its own name, and commit a criminal offence. In the case of learned societies and institutions, their property (if not vested in trustees) is by s 20 of the Literary and Scientific Institutions Act 1854 vested in their governing body, albeit that neither the institution nor the governing body is a corporation. Nor are these developments confined to the statutory. As long ago as 1901 the House of Lords held in Taff Vale Railway Co v Amalgamated Society of Railway Servants  AC 426 that a trade union (unincorporated) could be sued in its own name despite the absence of any statutory provision permitting it. Lord Lindley observed (at 442–443) that the problem of how to adapt legal proceedings to unincorporated societies consisting of many members was by no means new, and that the rules of common law had had to be altered to meet them. Those several examples relate largely to civil liability, but as will be seen, there is a similar variety of provision dealing with criminal liability in the case of unincorporated associations."
- Mrs Asim's complaints were brought under Part II of the Sex Discrimination Act 1975 and Part II of the Race Relations Act 1976, both of which apply to discrimination in the employment field. Under these provisions it is unlawful for an employer to discriminate on the grounds of sex or race, or to subject an employee to sexual or racial harassment: see section 6(2) and (3) of the 1975 Act and section 4(2) and (2A) of the 1976 Act. The definitions of employment (section 82 of the 1975 Act and section 78 of the 1976 Act) throw no particular light on the position of a person employed by a UA.
- This question was considered by the Employment Appeal Tribunal in Affleck where the claimants were employees of a UA which was also a charity. Were they employed by the members of the UA or by the management committee? Was there continuity of employment? It was held that the management committee was the employer. The Appeal Tribunal (Morison P) went on to say at paragraph 7:
"We have no doubt that employees of unincorporated associations, whether they be registered as charities or not, do have continuity of employment despite changes in the composition of the committee which constitutes their employer. It is our view that the way that comes about is through the contract of employment being made with the management committee and its members for the time being"
- In the light of Affleck it was therefore common ground – rightly in our view – that Mrs Asim was employed by the members of the Board. The members of the Board were all bound by contract to Mrs Asim; and together they constituted her employer for the purposes of the 1975 and 1976 Acts.
- The 1975 and 1976 Acts make provision for employers to be vicariously liable for the acts of employees in the course of their employment, and for the acts of agents acting with express or implied authority: see sections 41 and 32 respectively. They also make provision for such employees and agents, and for those who knowingly aid unlawful acts, to bear secondary liability: sections 42 and 33 respectively. But it is neither appropriate nor possible to resort to these provisions to impose liability on members of the management committee of a UA if they employ the complainant. Their liability is neither vicarious nor secondary. They are liable as employers.
- Mrs Asim's original claim form was brought against NBP and named members of the Board - including Mr Nazir and Mr Aslam. Specific criticisms of Mr Nazir and Mr Aslam were set out in the claim form. In our judgment the claim form sufficiently put Mr Nazir and Mr Aslam on notice of the case they had to meet. They were joined as Board members; and specific criticisms of them were made. We reject Mr Crow's argument that they were sued only as "perpetrators". Indeed, as we have sought to demonstrate, there is no separate secondary status of "perpetrator" applicable to a member of the management committee of an unincorporated association sued by an employee.
- We now turn to consider the questions of practice raised by Mr Crow's submissions. These questions are: (1) whether it is permissible for a UA to be named as a party at all; and (2) whether it is necessary for all the members of the committee of a UA to be joined if the proceedings are to be properly constituted.
- In Affleck Morison P said:
"13. .... Under the Tribunals Rules of Procedure, para 17(3), it is quite possible for there to be a representative respondent, and in such a case as this it would be desirable if this were possible for it to be done; namely, one person would be named as the respondent sued on his own behalf and on behalf of all other members of the executive committee at the relevant time.
14. Where there is a faction or factional dispute between the members of the committee, it may not be possible to provide for a representative respondent because it may be that the other members of the committee would not be content for their affairs to be handled by the named individual..... Of course, it is possible for any of the members of the executive committee to apply to be joined as a respondent as they plainly have an interest in these proceedings."
- To our mind it remains good practice for a claimant employee to name a representative respondent who was a member of the management committee at the relevant time and state that he is sued on his own behalf and on behalf of all other members of the executive committee at the relevant time.
- The Employment Tribunals Rules of Procedure 2004 (Schedule 1 to the Employment Tribunals (Constitution and Rules etc) Regs 2004) do not contain a provision equivalent to paragraph 17(3), quoted in Affleck; but we do not think this is an insuperable obstacle. The Employment Tribunals now have wide case management powers under rule 10 of the Rules. We will say more about these in a moment.
- In ordinary civil proceedings, in the absence of specific statutory authority, a UA can neither sue nor be sued in its own name: see Halsbury's Laws of England vol 11, para 227 and for a more detailed treatment Ashton and Reid on Club Law (2005) at paragraph 18-14. Unless representative proceedings are brought (see rule 19.6 of the Civil Procedure Rules) a claimant must make the members parties if they are to be bound by the result.
- We must say, however, that it is in our experience common in employment tribunals for an employee to bring a claim naming a UA as respondent. This is hardly surprising: many employees will complete their own claim forms; they will be likely to give the name of the UA as their employer (indeed often their statements of terms and conditions of employment will name the UA rather than the management committee); and they cannot be expected to know about the legal status of a UA, still less about the practice advocated in Affleck. Indeed it is in our experience not unusual for the whole proceedings in such a case to be conducted without any individual being named.
- There are reasons why the practice in employment tribunals ought to differ from the practice before civil courts. We have the following points particularly in mind. Firstly, employment tribunals are to a large extent concerned with claims by employees against their employers. As we have said, the management committee of the UA will generally have engaged an employee in the name of the UA. Whether or not this is the case, we do not think a management committee has any cause for complaint if an employee brings proceedings in the name of the UA. Secondly, in tribunal proceedings the time limits for commencement of proceedings are generally strict: if proceedings started in the name of a UA were liable to be dismissed, there would be potential for procedural delay if not injustice. Thirdly, undue formality is to be avoided in tribunal proceedings (see for example rule 14(2) of the Employment Tribunal Rules). Fourthly, as we have said, employees generally cannot be expected to know about the special legal position of unincorporated associations. These matters are relevant to the overriding objective of dealing with cases justly; and therefore to be taken into account in construing the Rules: see reg 3 of the 2004 Regulations.
- We therefore consider that it is permissible for an employee to bring a claim against an employer who is the management committee of a UA by using the name of the UA. Such a claim is not irregular. It will not (for example) be liable to be struck out, leaving an employee with a time limit problem. It follows that we reject Mr Crow's submissions on these points.
- Whether a claim is brought in the name of the UA, or in the name of a representative respondent in accordance with the practice in Affleck, there are questions which may need attention by case management. (1) Do the members of the management committee actually know of the proceedings? (2) Is there any objection (either from the UA or from any representative respondent) to the proceedings continuing as they have begun? (3) Is there any conflict of interest or disagreement between committee members which may require one or more to be added as respondent? (4) Is there any likely problem of enforcement unless all or most members of the committee of the UA are made respondents?
- There will be many cases (particularly where the UA is legally represented and a large and well managed body) where these issues do not arise. Often it will be clear from the response whether this is so. There will be other cases where some or all these issues arise – particularly where the UA is small and run by volunteers, or where there has been disagreement within the UA. Employment Judges should be alert to these issues particularly where the employee or the UA does not have experienced legal representation. They are entitled to make enquiries, at a case management discussion or by order, as to these issues. The powers which they may exercise include rule 10(k) of the Employment Tribunal Rules (whereby the Employment Judge may order any person who may be liable for the remedy claimed to be joined in the proceedings). As we have said, the practice advocated in Affleck remains good practice; but if there are doubts concerning the questions we have mentioned, it may be desirable for all or more members of the management committee to be joined. If specific allegations of misconduct are made against a member of the management committee, for example, we think that member should be joined; the interests and concerns of that member may be different from those of the committee generally.
- In our judgment Mr Nazir and Mr Aslam have no procedural cause for complaint. NBP was named as a respondent together with many members of the Board. Mr Nazir submitted the response. It was never suggested that it was inappropriate for NBP to be a respondent – rather the concern seems to have been that too many respondents were joined. NBP instructed a firm of consultants to act. It is true that only Mr Nazir and Mr Aslam attended the hearing to resist the claim: but we do not think this gives rise to any unfairness or injustice so far as they are concerned.
- We have already outlined the history of the proceedings and explained that by agreement Mrs Asim's complaints were considered under thirteen headings. It is relevant to mention one other feature of the hearing. At a late stage in the hearing the Tribunal received in evidence, and listened to, part of a recording of the Board meeting which took place on 30 January 2007.
- The Tribunal received this evidence in the following circumstances. Mrs Asim complained that Mr Aslam talked at Board meetings as if she was not there, saying "she" and "her" when he would have used her name if she had been a man. This was one of the thirteen issues for the Tribunal to determine. There was also a factual dispute, relevant as background to the specific issues, as to whether, in the course of contentious Board meetings, Mr Aslam had shouted; he denied doing so.
- On behalf of Mrs Asim Mr Panesar put in a recording of part of the meeting on 30 January 2007. He also put in a transcript of the parts on which Mrs Asim wished to rely. Mr Crow invited the Tribunal to hear a section of the tape recording to put in context what was in the transcript. The recording certainly supported the contention that Mr Aslam (and other Board members) had shouted. The transcript did not, however, support the case of Mrs Asim on the specific issue – to the contrary, for on the transcript Mr Aslam is quoted as using Mrs Asim's name. The words attributable to Mr Aslam on the transcript are: "If I had my way I would not allow Aneela to have a vote." Another voice is then heard to say: "Why not?" Mr Crow noted the response on the recording to be – "Because she is a paid employee". That was how the matter stood at the end of the hearing. It was not suggested that Mr Aslam could be heard saying "she" or "her" when he would have used her name if she had been a man.
The Tribunal's findings
- As we have said, counsel had agreed a schedule of thirteen issues. Before addressing the issues individually, the Tribunal recognised that at the heart of Mrs Asim's case was an assertion that Pakistani men cannot accept Pakistani women in positions of authority: see paragraphs 7.1 and 8.1 of its reasons. The Tribunal said:
"7.1 At the heart of Mrs Asim's case is her belief that Pakistani men cannot accept Pakistani women in positions of authority and that her treatment as Chief Executive Officer of NBP by the Respondents was a manifestation of that. That belief was shared by her female Pakistani supporting witnesses. However, we had no empirical evidence to validate that belief. We therefore do not find that as a primary fact. Mr Nazir and Mr Aslam gave us examples of Pakistani women in senior positions to whom they successfully related and supported."
- In this important respect, therefore, the Tribunal did not accept Mrs Asim's case. The Tribunal observed that –
"7.31 … both Mr Nazir and Mr Aslam have impressive track records in public and community life. We saw considerable favourable character references in relation to them from other witnesses whom they called. They both gave evidence of favourable treatment of other women and of Pakistani women which we take into account"
- But the Tribunal's finding, adverse to Mrs Asim on this issue, did not result in complete dismissal of her claim. The Tribunal explained:
"8.1….. Mr Crow, in effect would wish us to dismiss her claims on the basis of that finding. However, we reject that as instances of treatment alleged by her and included in the Agreed Schedule of Issues may amount to unlawful discrimination or harassment and should be considered on their merits."
- The Tribunal had identified two hypothetical comparators: a male Pakistani Chief Executive Officer in similar circumstances to Mrs Asim (for the purposes of a sex discrimination claim) and a non-Pakistani female Chief Executive Officer in similar circumstances (for the purpose of a race discrimination claim). The Tribunal said that it had to consider whether Mrs Asim had been treated less favourably than those hypothetical comparators had been. But the Tribunal said that its reasoning was also informed by the treatment of "other, non-statutory, comparators". It went on:
"8.2 ……. For example, we accept the evidence of Miss Ward and Salome Graham that compared to Abdullah Uhuru, a male Chief Executive/Co-ordinator that Mrs Asim was unfavourably treated more intensely and therefore less favourably by Mr Nazir. On the other hand, we also have regard to the evidence both Mr Nazir and Mr Aslam gave of their treatment of other women and persons of other races …."
- The Tribunal then stated, prior to considering the thirteen issues, the following:
"8.3 In relation to direct discrimination, we find that the principal reason for Mrs Asim's treatment certainly by Mr Nazir and Mr Aslam was her taking sides in the Board dispute which is not in itself an unlawful discriminatory reason. However, as we shall see, we do not find that that was the only reason for their treatment of her. Accordingly we do not think that it is appropriate to dispense with the 2-stage approach of Igen v Wong as is suggested may be the case when dealing with cases of hypothetical comparators in Shamoon.
8.4 In relation to harassment, that principal reason does not have the same potential for defeating her claim"
- The Tribunal then proceeded to work through the thirteen issues. As we have said, it found against Mrs Asim in respect of nine issues. Some of the instances (for example the deliberate blocking of the work of staff) were not proved at all. Others (for example delaying cheques while questions were asked about invoices) were justified and not discriminatory. Others (for example, criticising the process of her recruitment) were neither discriminatory nor harassment, but were rather found to be no more than part and parcel of the underlying power struggle.
- On four issues, however, Mrs Asim was successful in proving unlawful sex and race discrimination. It was found that (1) Mr Nazir harassed her in a telephone call on 23 November 2007; (2) Mr Nazir harassed her at a meeting on 28 November; (3) Mr Aslam harassed her by using the terms "she" and "her" rather than her name; and (4) NBP discriminated against her unlawfully by failing to address her grievances presented in January 2007. Before turning to the findings in relation to these four issues, it is convenient to summarise counsel's submissions.
- On behalf of Mr Nazir and Mr Aslam, Mr Crow first submitted that the Tribunal misapplied the burden of proof provisions contained in the Sex Discrimination Act 1975 (section 63A(2)) and the Race Relations Act 1976 (section 54A(2)). He argued that the Tribunal left out of account any element of explanation when deciding whether facts had been proved from which the Tribunal could conclude in the absence of an adequate explanation that the Respondent had committed an unlawful act of discrimination or harassment. This, he submitted, was wrong in principle: all the evidence should be taken into account at the first stage. He referred in particular to Law Society v Bahl  IRLR 799, Laing v Manchester City Council  IRLR 748 and Madarassy v Nomura  ICR 867. Mr Crow took us to various passages in the Tribunal's reasoning in support of these submissions. He submitted that all the findings of the Tribunal which were adverse to his clients were affected by this error.
- Further, in any event, Mr Crow attacked the Tribunal's findings of harassment. He submitted that the findings in respect of the conversation of 23 November and 28 November were either perverse or inadequately reasoned. Mr Crow submitted that the finding of harassment in respect of the Board meeting on 30 January 2007 was flawed. The mere use of the phrase "she" and "her" could not of itself amount to harassment. It was irregular and unfair for the Tribunal to reach a finding adverse to Mr Aslam on the basis of what the Tribunal believed could be heard on the tape when this was not put to Mr Aslam and he had no opportunity to address the Tribunal in respect of it.
- Mr Crow further submitted that the Tribunal's finding of discrimination based on failure to deal with Mrs Asim's grievances was not based on any primary findings of fact against either Mr Nazir (who was then absenting himself from Board meetings) or Mr Aslam. As the Tribunal found, this matter had been delegated to an interim panel. It was not suggested that the interim panel acted (or failed to act) in the way it did on the grounds of the sex or race of Mrs Asim. Given the way in which Mrs Asim's case was put, there was no factual basis for a finding of discrimination.
- On behalf of Mrs Asim Mr Panesar submitted that the Tribunal applied the tests set out in Igen v Wong correctly, ignoring at the first stage any explanation which the employer proffered, and turning to it only once the burden of proof had shifted. He refers in particular to paragraphs 8.2 and 8.3 of the Tribunal's reasons, which we have already quoted. He submitted that the Tribunal found the actions of Mr Nazir and Mr Aslam to be caused partly by the stance she took but also by reason of her race and sex. This conclusion was permissible in law. Mr Panesar further submitted that Mr Crow's criticisms of the Tribunal's individual conclusions amounted to no more than a challenge on the grounds of perversity: and he drew our attention to the well-known line of authority on this question, culminating in Yeboah v Crofton  IRLR 634.
- The first three findings of the Tribunal were findings of sexual harassment. By virtue of section 4(2A) of the Race Relations Act 1976 it is unlawful for an employer to subject to harassment a person who is employed by him. By section 3A –
"(1) A person subjects another to harassment in any circumstances relevant for the purposes of any provision referred to in section 1(1B) where, on the grounds of race or ethnic or national origins, he engages in unwanted conduct which has the purpose or effect of –
(a) violating that other person's dignity, or
(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him.
(2) Conduct shall be regarded as having the effect specified in paragraph (a) or (b) of subsection (1) only if, having regard to all the circumstances, including in particular the perception of that other person, it should reasonably be considered as having that effect."
- The burden of proof provision applicable in this case is to be found at section 54A(2):
"(2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent
(a) has committed ... an act of ... harassment against the complainant
the tribunal shall uphold the complaint unless the respondent proves that he did not commit .. that act."
- The Sex Discrimination Act 1975 contained, at the relevant time, similar provisions: section 4A(1)(a), section 4A(2) and section 63A(2). Section 4A has since been amended (with effect from 6 April 2008) to omit the phrase "on the ground of her sex" and replace it with a requirement that the unwanted conduct should be "related to her sex" – a phrase more closely aligned to the underlying European Directives. (The Tribunal referred to the later definition; but it was not suggested that the precise wording of the definition was material in this case).
- There were, essentially, the following questions for the Tribunal to answer in relation to each allegation of unlawful harassment. What was the conduct of Mr Nazir and Mr Aslam? Was it unwanted? Did it have the purpose of violating her dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her? Did it have the effect of doing so (bearing in mind that the express statutory requirement to apply an objective, reasonable standard, taking into account Mrs Asim's own perception)? And finally, was the conduct "on the grounds" of her race and sex, as she alleged?
- We wish to emphasise this last question. The provisions to which we have referred find their place in legislation concerned with equality. It is not the purpose of such legislation to address all forms of bullying or anti-social behaviour in the workplace. The legislation therefore does not prohibit all harassment, still less every argument or dispute in the workplace; it is concerned only with harassment which is related to a characteristic protected by equality law – such as a person's race and gender.
- In our judgment, when a Tribunal is considering whether facts have been proved from which it could conclude that harassment was on the grounds of sex or race, it is always relevant, at the first stage, to take into account the context of the conduct which is alleged to have been perpetrated on the grounds of sex or race. The context may, for example, point strongly towards or strongly against a conclusion that harassment was on the grounds of sex or race. The Tribunal should not leave the context out of account at the first stage and consider it only as part of the explanation at the second stage, after the burden of proof has passed.
- We think a simple illustration will suffice to show why this must be the law. Suppose that Y, a man, shouts and swears loudly at Z, a woman. He does so immediately after Z accidentally spills a cup of coffee over his clothing; and prior to this Y had never shouted or sworn at Z. It would be absurd to ignore the spilling of the cup of coffee on Y when deciding if there is a prima facie case that he harassed Z on the grounds of sex. The spilling of the coffee is not merely explanation; it is also part of the context in which the Tribunal must decide whether there is a prima facie case of sexual harassment. And this is the case whether or not Y's conduct is thought to be reasonable.
- Prior to the coming into force of the burden of proof provisions, it was well established that a Tribunal is not entitled to draw an inference of discrimination from the mere fact that an employer has treated an employee unreasonably. On the other hand racial or sex discrimination might be inferred if there was no explanation for unreasonable treatment. See Glasgow City Council v Zafar  ICR 120, discussed and explained by Elias J in Law Society v Bahl at paragraphs 93 – 98 in a passage subsequently approved by the Court of Appeal (Gibson LJ) at paragraphs 98 – 101. Since the burden of proof provisions have come into force, the Appeal Tribunal and the Court of Appeal have considered how they apply where a complainant establishes that he has been treated unreasonably by his employer, who is of a different sex or race.
- In Laing v Manchester City Council the complainant, who was black and Afro Caribbean, complained about the behaviour of a manager. The Tribunal found that she acted inappropriately towards him. But the Tribunal found that she had poor management skills and would have acted inappropriately towards any employee in similar circumstances. The Tribunal found that the burden of proof had not transferred. It was argued that the Tribunal should not have taken into account the manager's poor management skills at the first stage; and should therefore have found that the burden lay upon the employer to prove that there was no unlawful discrimination. The Appeal Tribunal rejected that argument: see paragraphs 59 – 68.
- Laing v Manchester City Council was approved and applied by the Court of Appeal in Madarassay v Nomura International plc at paragraphs 63-77. Thus Mummery LJ said:
"Section 63A(2) does not expressly or impliedly prevent the tribunal at the first stage from hearing, accepting, or drawing inferences from evidence adduced by the respondent disputing and rebutting the complainant's evidence of discrimination. The respondent may adduce evidence at the first stage to show that the acts which are alleged to be discriminatory never happened; or that, if they did, they were not less favourable treatment of the complainant; or that the comparators chosen by the complainant or the situations with which comparisons are made are not truly like the complainant or the situation of the complainant; or that, even if there has been less favourable treatment of the complainant, it was not on the ground of her sex or pregnancy"
- The same considerations apply, in our judgment, where the complaint is of sexual harassment. Evidence of context which tends to show that conduct, even if unreasonable, was not on the grounds of sex or race is relevant and should be weighed and considered at the first stage.
- We have reached the conclusion that the Tribunal considered the fact that Mr Nazir and Mr Aslam disagreed with Mrs Aslam about her taking sides in the Board dispute only at the second stage as explanation, and not at the first stage when considering whether there was a prima facie case of discrimination.
- Concerning the telephone call on 23rd November, the Tribunal's findings of fact were set out in paragraph 7.17 of its reasons.
"Mr Nazir received Mrs Asim's letter on 23 November 2006. He telephoned her and pointed out his views about the letter and told her that as an Executive Officer she should not be taking sides in a dispute of the Board and should remain impartial and offer constructive and balanced suggestions. We have had regard to what both Mrs Asim and Mr Nazir said about that telephone conversation and the evidence of Salome Graham who heard Mrs Asim's end of the same conversation which Mr Nazir said was giving her friendly advice. We prefer Mrs Asim's account and the evidence of Salome Graham to that of Mr Nazir. Accordingly we find that he did tell Mrs Asim that she had no right to write the letter to the Board, had not been employed to give instructions to the Board and that she should be careful in the position that she was in. He says that the conversation did get heated but he did not threaten or intimidate her. She says that he told her that she should "be careful". He repeated that in another call on 27th November saying that she had no right to write a letter to the Board and had not been employed to give instructions to them. We find that "be careful" has a threatening element to it and that Mrs Asim did reasonably perceive these conversations to amount to harassment of her."
- The Tribunal's conclusions were set out in paragraph 8.5.1(i) of its reasons. The Tribunal found that there was no direct discrimination because "Mrs Asim did not suffer any detriment as a result of the conversation on 23 November". However the Tribunal found that "NBP" did unlawfully harass Mrs Asim in a way related to her sex and on the ground of her race. It said:
"We find that conversation and the conversation on 27 November 2006 are facts from which, before considering any explanation by the Respondents, we could conclude that Mrs Asim was harassed because of her sex and/or race"
We find – that this conduct was unwanted by Mrs Asim, - that she has proved facts relating to the tone and content of the conversations on 23 and 27 November 2007 from which we could conclude that the conversation on 23 November 2006 was related to her sex and was on the grounds of her race – that the explanation by Mr Nazir that this conversation derived from her taking sides in the Board dispute has not proved that this conduct was not related to her sex or on the grounds of her race – that she has proved facts from which we could conclude that that conduct had the purpose of violating her dignity or of creating an intimidating and hostile environment for her, and – that Mr Nazir has not proved that that conduct did not have that purpose."
- The Tribunal's primary findings of fact therefore were that Mr Nazir told Mrs Asim that she had no right to write the letter to the Board, had not been employed to give instructions to the Board and should be careful in the position she was in. The Tribunal found that the telephone conversation became heated and that the use of the phrase "be careful" had a threatening element to it; although the Tribunal did not say what the threatening element was. Given these primary findings, we find it difficult to understand why the Tribunal considered that the burden of proof had transferred to Mr Nazir to establish that he had not committed an unlawful act. We think the Tribunal has indeed misunderstood and misapplied the burden of proof provisions in the legislation.
- In their conclusions in this respect, the Tribunal said that it was by reason of the "tone and content" of the conversations that they could conclude that the conversation on 23 November was related to her sex and on the grounds of her race. They took into account the fact that the conversation derived from her taking sides in the Board dispute only as Mr Nazir's explanation. It was critical to take into account, at the first stage, the fact that Mr Nazir had a grievance with Mrs Asim which was not itself of a discriminatory nature.
- We think that paragraph 8.4 of the Tribunal's reasoning, which we have already quoted, may point in the same direction. The Tribunal rightly said, in paragraph 8.3 of their reasons, that the principal reason for Mrs Asim's treatment by Mr Nazir and Mr Aslam was her taking sides in the Board dispute "which is not in itself an unlawful discriminatory reason". The Tribunal then said, in paragraph 8.4, that in relation to harassment "that principal reason does not have the same potential for defeating her claim". We do not see why. Both for a claim of direct discrimination and for a claim of harassment of the kind with which this case was concerned, the ground of the treatment must be discriminatory. If the reason for the treatment is non-discriminatory, this is equally relevant to a harassment claim.
- The Tribunal approached its findings concerning the conversation on 28 November in this same way, adopting the same structure in its conclusions and (we think) again falling into the error of considering Mrs Asim's taking sides in the Board dispute only at the second stage of its consideration.
- There was, to our mind, a further difficulty in the Tribunal's reasoning concerning the conversation on 28 November. The Tribunal's consideration of the primary facts was contained in a lengthy paragraph (7.20) of its Judgment. The Tribunal appears to have accepted the evidence of an independent witness, Mrs Aziz, present at the conversation: the Tribunal found her to be a credible witness. Mrs Aziz did not entirely support the version of events given by either Mrs Asim or Mr Nazir. The Tribunal recorded her account as follows:
Mrs Aziz also told us that she did not observe or sense any behaviour which was aggressive, intimidating or bullying from either Mrs Asim or Mr Nazir towards each other before they left the meeting. While they were having the conversation afterwards she says she called Mr Nazir over as it was her intention to try and mediate any issues they had. That conversation lasted some 15-20 minutes and again she confirmed that neither Mr Nazir's nor Mrs Asim's demeanour was threatening, aggressive or intimidating, but rather calm. Mr Nazir said he had known Mrs Asim for a long time, respected her like a sister and as such he was advising her not to take sides in the Board dispute and remain impartial. Mrs Aziz interpreted the content and manner in which he spoke as advisory and wanting to consider Mrs Asim's best interest. Mrs Asim then started to cry. Mr Nazir said he too felt sad at the situation and wanted to cry. Neither party were confrontational and left and went home.
Mrs Aziz was surprised to hear a few weeks later that Mrs Asim had reported that she had been harassed and intimidated during the conversation and her reaction was that this was not the case.
- On the basis of these findings we cannot see why the Tribunal considered the conduct of Mr Nazir on this occasion to amount to harassment. Either the Tribunal has not set out its findings of fact in a way which can be understood; or it has reached a conclusion from its findings which is unjustified by any reasoning. For this additional reason we consider that the Tribunal's finding in respect of 28 November cannot stand.
- "She" and "her". Mrs Asim alleged that Mr Aslam talked at Board meetings as if she was not there, saying "she" and "her" when he would have used her name if she had been a man.
- The only specific finding relating to this matter is contained in paragraph 7.33 of the Tribunal's reasons. It concerns the tape recording which the Tribunal heard.
"Mr Aslam, in evidence, denied ever shouting, let alone shouting at Mrs Asim. After the conclusion of the Respondents' evidence we listened to an extract of a tape recording of part of the meeting on 30 January 2007. We had a short but inconclusive transcript of parts she wished to rely upon. A voice which we recognised as Mr Aslam was heard shouting out "she" and "her". Both Maria Ward and Salome Graham say that he did this generally but they are not specific as to time and place. This is the only confirmed incident. The transcript records Miss Ward referring to someone, it would appear from the context to be Mr Aslam, pointing at Mrs Asim. The issue appears to have been whether or not she would have a vote on the Board of NBP Ltd. That could never have been the case if she was Company Secretary. However it is quite clear from that tape, albeit taken with a hand held Dictaphone and put on a disc and played to us on a laptop, Mr Aslam, Mr Graham and indeed other members of the Board were shouting vociferously at one another in a totally unseemly and indeed disgraceful way."
- The Tribunal based its finding that Mr Aslam used objectionable "she" and "her" language instead of Mrs Asim's name on what it believed it could hear on the tape. But the tape had not been relied on for this purpose; it was not suggested or put by Mr Panesar that Mr Aslam could be heard using "she" or "her" in this way on the tape; and neither Mr Aslam in evidence nor Mr Crow in submissions had any opportunity to address the matter.
- In these circumstances we consider that fairness required, as a minimum, that the Tribunal, minded to make an important finding based on its perception of what could be heard on the tape, should have informed the parties and give them an opportunity to make submissions: see Judge v Crown Leisure Ltd  IRLR 823 at paragraph 20 where Smith LJ said:
"It is highly desirable that if a tribunal foresees that it might make a finding of fact which has not been contended for, that possible finding should be raised with the parties during closing submissions. If the tribunal does not realise what its findings of fact are likely to be until after the hearing has finished, it will usually be necessary to give the parties the opportunity to make further submissions, at least in writing, although not, in my view, necessarily by oral argument."
- In Judge v Crown Leisure it was possible to uphold the Tribunal's decision notwithstanding the failure to give such an opportunity: see paragraphs 21(Smith LJ) and 26 (Nourse LJ). In this case we do not think the failure can be overlooked. The Tribunal's reasoning depends on its perception of what it heard on the tape; it was the basis of the only finding of sexual or racial harassment made against Mr Aslam; and the transcript which the parties agreed did include a passage where Mr Aslam used Mrs Asim's name (a matter to which the Tribunal did not refer in its reasons). We cannot say the result would have been the same if the Tribunal had afforded to Mr Aslam an opportunity to make submissions.
- We turn finally to the finding of discrimination based upon failure by the Board to respond to Mrs Asim's grievances. It was common ground that Mrs Asim's grievances had not been addressed by the co-chairs, whereas other grievances had been addressed at least to some extent. In her claim form Mrs Asim had complained that 6 months was too long to wait for a response. The Tribunal said:
"7.35. The contrast between the handling of Mrs Asim's grievances against Mr Nazir and Mr Aslam and Mr Bhavesh Jani's grievance on 31 January 2007 is shown by Jaswinder Basi and Cecile Wright's email to him on 2 February 2007 .. in which they say as co-Chairs that they have discussed his email of 31 January 2007 and express their concern and sympathy with the situation he and Mr Nazir find themselves in and hope that it can be resolved amicably and quickly. Mrs Asim's grievances were not dealt with and she did not receive a response, let alone similar concern and sympathy."
- The Tribunal concluded:
"We have dealt with the comparison with Bhavesh Jani's and Mr Nazir's grievances (non statutory comparators) at paragraph 7.36 above. This was a failure by the interim co-Chairs on behalf of the Board as a whole……. We find that this failure to deal with her grievances is a fact [sic] from which, in the absence of an explanation by the Respondents, could lead the Tribunal to draw an inference of discrimination on the ground of sex or race in relation to the treatment of her grievances. There was no explanation. We find that the failure to deal with Mrs Asim's two grievances amounted to a detriment.
Conclusions. We find that neither of the hypothetical comparators would have been dealt with in the same way and that the failure to deal with a grievance is a detriment. Accordingly, in the absence of an explanation by NBP, we find that NBP discriminated against Mrs Asim in this respect in a way related to her sex and on the ground of her race."
- The Tribunal appears to have based this finding purely on the failure of the co-chairs to address Mrs Asim's grievances. But it was not, as we understand it, Mrs Asim's case that the co-chairs themselves acted from any motive of discrimination. As we have shown earlier in this judgment, in her claim form and in the case management discussions her case was put fairly and squarely against Mr Nazir and Mr Aslam, the Pakistani members who were said to be controlling the Board. (This case was largely rejected by the Tribunal: as we have said, Mrs Asim succeeded only on four issues.) We do not understand Mrs Asim to have alleged that the co-chairs, or other individual members of the Board, themselves acted for discriminatory reasons.
- It was therefore, in our judgment, necessary for Mrs Asim to establish that Mr Nazir and Mr Aslam were implicated in the failure to deal with her grievances – for example, by obstructing or deterring the co-chairs or the Board from dealing with them – and did so on the grounds of sex and race. Given the nature of Mrs Asim's case, we do not think the burden of proof transferred merely upon proof of delay by the co-chairs, even if they dealt more quickly with other grievances. The Tribunal ought to have considered whether Mr Nazir and Mr Aslam were in any way implicated in the failure to deal with the grievances.
- It follows that the appeal will be allowed. The findings of sexual and racial harassment and discrimination will be set aside. We are not in a position ourselves to say what the conclusions would have been if the Tribunal had approached the matter in accordance with the law; and we do not think this is a case where it is appropriate to remit the issues to the same Tribunal. The matter will be remitted for those remaining allegations to be determined by a freshly constituted Tribunal.
Published: 30/06/2010 17:28