Appeal No. UKEAT/0443/09/CEA

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 2 February 2010

Before

HIS HONOUR JUDGE RICHARDSON

PROFESSOR S R CORBY

MR J MALLENDER

THE CHIEF CONSTABLE OF WILTSHIRE CONSTABULARY (APPELLANT)

MISS S MASIH (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR GARY SELF (of Counsel)

Instructed by:
Messrs Veale Wasbrough Solicitors
Orchard Court
Orchard Lane
Bristol BS1 5WS

For the Respondent
MR JAMES MEDHURST (Representative)

Free Representation Unit
6th Floor 289-293 High Holbor
London
WC1V 7HZ

PRACTICE AND PROCEDURE: Appellate jurisdiction/reasons/Burns-Barke

Victimisation claim – reasons Meek non-compliant – remitted for rehearing before fresh Tribunal.

1. This is an appeal by the Wiltshire Police Authority ("the Authority") against a judgment of the Employment Tribunal (Employment Judge Simpson presiding) dated 13 July 2009 following a hearing lasting 3 days in June 2009.

1. Miss Sharin Masih had brought a claim of race discrimination and victimisation against the Authority and against Hayes Recruitment Specialists ("Hayes"). Her claim related to her unsuccessful application for two positions advertised by the Authority: the positions of Equality and Diversity Officer ("the officer position") and the position of HR Partner (Diversity)("the management position"). On the first day of the hearing Miss Masih withdrew her allegations of race discrimination against both Respondents. The hearing proceeded against both Respondents on the question of victimisation. By its judgment the Tribunal held the complaint of victimisation against the Authority was well founded; it awarded the sum of £2,500 by way of compensation for injury to feelings. It dismissed the complaint of victimisation against Hayes.

The background facts

1. Miss Masih is of Indian ethnic origin. She has background and experience both in human resources and in the promotion of equal opportunities, particularly in the Wiltshire area. On various occasions she has applied for employment with the Authority. In 2004 she brought proceedings in the Employment Tribunal claiming race and sex discrimination in respect of one such application. Those proceedings went to a full hearing in March 2005. She was unsuccessful.

1. Although the Tribunal do not record it, it is common ground that between January and August 2006 Miss Masih was employed by the Authority as a Community Engagement Officer. In August 2006 she resigned and took up employment as a Race Equality Officer with the Swindon Race Equality Council. At the time when she applied for the officer position and the management position she was still employed, but under some threat of redundancy.

1. It was part of Miss Masih's case that, in addition to her proceedings in the Employment Tribunal, she had poor relations with some members of the police in Wiltshire for other reasons. Her evidence was that she had been poorly treated by at least one person during her period of employment; and that in the course of other employed and voluntary positions, she had raised complaints against the police and criticised their procedures. Miss Masih's witness statement had dealt with these aspects of her case in some detail; the Tribunal said only that in one respect she "became more of a critic than a friend".

1. Recruitment for the officer position was handled by Hayes who in turn involved a firm known as Davis Green. Although, as we shall see, the Tribunal's findings as to what occurred are sparse, it is common ground that in June 2008 Miss Masih applied for that position and sent her CV to Davies Green. It is also common ground that in June 2008 she was told that she would not be interviewed for this position. Her case is that she was told by Davis Green that she was "over qualified" for the position. The Authority's case – based on the evidence of Ms Rodriguez - is that Miss Masih was not considered because the salary she was requesting was well above the available salary for the position.

1. Recruitment for the management position was also handled by Hayes. There had been an earlier, somewhat differently defined, position in which Miss Masih had expressed an interest. When the position was redefined in July 2008 Miss Masih again expressed her interest. She was interviewed at short notice on 30 July 2008. It is the Authority's case that she did not interview well and that she was found not to be suitable for the position. After some delay she was informed that she was unsuccessful. She then requested a meeting, which took place on 19 August 2008. This meeting was attended by Mr Milton, the Authority's Director of Human Resources, and Miss Williams, an HR manager. At the meeting Miss Masih complained about the process and outcome of her application for the management position.

1. It is common ground that, at this meeting, Miss Masih also expressed interest in being considered for the officer position. She made it plain that she would accept the salary at which it was advertised (it was her case that she had always made this plain). Mr Milton considered her request. He wrote to her after the meeting, telling her that applications were closed, candidates were due to be interviewed the following day, and it would not be fair to re-open applications just for her.

The Tribunal's reasons

1. There is, on any view, one remarkable feature of the reasons which the Tribunal has given for its judgment.

1. As we have said, Miss Masih's claim related to two positions. It is clear from the Tribunal's reasons that its finding of victimisation related only to the officer position. In its reasons, which are short, the Tribunal has wholly failed to say whether Miss Masih won or lost on the issue relating to the management position and if so why; indeed there are scarcely any findings relating to it. We shall return later to the question whether this has an impact on the Authority's appeal.

1. The Tribunal's reasons did not set out the issues which it had to determine. The Tribunal identified the "protected act" as being the earlier claim for race and sex discrimination. No other protected act is found or mentioned. The Tribunal identified the witnesses from whom it heard and gave succinct comments on their evidence.

1. We think it is important to cite some of the comments which the Tribunal made as to the impression given by witnesses:

"9. The Claimant was not a good witness, who was hesitant and uncertain in giving her evidence and was on occasions economical in her answers, seeking to put spin on the facts rather than giving full and frank answers to the questions put to her. We can understand how she was seen not to perform well at interview.

…

11. Sharon Williams, like the Claimant, was at times uncertain in her answers and reluctant to commit herself. Whilst she did not tell us anything that was specifically untrue we felt her evidence was at times misleading particularly in respect of the extent to which there was knowledge of the Claimant's "protected act" within the HR Department.

12. Mark Milton was by contrast an able and articulate witness who nevertheless had some difficulty in explaining to us the notes he had made of the meeting on the 19 August. Whilst he accepted the Claimant's account of that meeting we find it difficult to understand how he came to attend the meeting without apparently knowing anything about the subject matter. Mr Self made much of the fact that Mark Milton had not been asked why he had not allowed the Claimant to go forward to interview for the Officer post but had not himself thought to explore this subject which had been dealt with only passingly in his statement.

13. Tory Rodriguez was an impressive witness clearly competent in her job and convinced that she had not victimized the Claimant in any respect. However, the potential problem of knowledge of the Protected Act was, to a degree, glossed over and we remain uncertain as to precisely why the Claimant's CV, which she recognized immediately, was not followed up in view, of her previous knowledge and interest in the Claimant's application for the Manager post. Clearly her communication with Davies Green had lacked clarity and she did not take steps to positively verify the Claimant's position regarding salary expectations in relation to the Officer role."

1. The Tribunal's statement of the law which it was applying is succinct. It appears from two paragraphs in the reasons.

"The Burden and Standard of Proof

16. The Burden of proof lies with the Claimant to satisfy us that there are facts from which we can conclude that, in the absence of adequate explanation, she has been victimized by the Respondent. If that is established the burden then shifts to the Respondent to explain the acts or omissions which gave rise to the supposed victimization. In this case it is conceded that the Claimant had done a Protected Act and we find that the burden has shifted to the Respondent in view of the evidence relating to the failure to pass the claimant's CV forward for shortlisting for the Officer post.

…

The Law

18. The Law is s.2 of the Race Relations Act and requires the Claimant to show she has been less favourably treated by reason of her Protected Act. This we interpret with the benefit of judgments of the EAT and the Courts."

1. The Tribunal made the following succinct findings relating to the officer position:

"17.5 The claimant was in touch with Davies Green and other recruitments agents as she was in the course of being made redundant. Chris Simmons forwarded her CV to the First Respondent and the CV was immediately recognized by Tory Rodriguez as being that of the claimant who was known to her. Following some form of communication between Davies Green and the First Respondent (possibly between Chris Simmons and Natalie) the claimant was informed that she was over qualified for the job and that her application would not go forward.

…

17.7 The Claimant then asked for a meeting with Sharon Williams and Mark Milton which was arranged for 19 August 2008. At that meeting it was accepted that the Claimant's CV had been submitted for the post of Equality and Diversity Officer. The reason for it not being taken forward for short-listing was unclear (either excess salary requirements or over qualification) and Mark Milton informed the Claimant that it would now be unfair to include her at interview.

17.8 No attempt had been made by First Respondent which was aware of the claimant's interest in the "officer" role to clarify such interest notwithstanding their knowledge that she was anxious to work with them, and no attempt made to include her in the recruitment process which had not at the time of her meeting with Mark Milton been completed."

1. Under the heading "Decision" the Tribunal reasoned as follows:

"19. From the facts as we have found them to be we draw an inference that there had been some communication between the First Respondent and Davies Green which indicated that the application by the claimant for the officer position would be unwelcome. We also find from the evidence that those in the HR department would have been aware of the Protected Act and that such awareness contributed to the decision that the claimant's application would be unwelcome.

20. The First Respondent's evidence as to these matters does not in our finding discharge the burden of proof that rests with them to show that such apparent victimization was wholly untrammelled by the Protected Act although we accept, as does the claimant, that she was perceived as "a thorn in the flesh" of the senior officers of the First Respondent.

21. We find that Mark Milton missed an opportunity to remedy matters when he declined to allow the claimant to go forward to interview for the officer post; a post for which she was well qualified in terms of the rewired criteria, saying simply that it would not be air to the other candidates. We are at a loss to understand how his perception of unfairness to the other candidates could outweigh the apparent unfairness to the claimant, whose application had been side tracked on the grounds of over qualification or excess salary expectations. We accept that the claimant knew of the salary range when she asked that her CV be submitted and was content to work within it.

22. In considering a comparator against whom the Claimant has been treated less favourable we are in a position of having to select a hypothetical comparator. We identify such as being a person similarly qualified and experienced who met all the criteria of the "officer" post. Such a person would have been short-listed for interview, a privilege in our finding, not afforded to the Claimant. We find that in part this was on account of her having done a Protected Act."

Statutory provisions

1. The Tribunal referred to section 2 of the Race Relations Act 1976, which so far as relevant provides as follows:

"2 Discrimination by way of victimisation

(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;"

1. We should mention one specific point. The Tribunal made no reference to the Sex Discrimination Act 1975. Its reference to the burden of proof, which we have quoted, would seem to be based on section 54A of the 1976 Act. But it is now well established – and was established by the time this Tribunal was heard – that section 54A does not apply to a claim of victimisation: see Oyarce v Cheshire County Council (2008) ICR 1179.

1. It seems that Miss Masih's earlier Tribunal proceedings were based on sex discrimination as well as race discrimination. If so, the Tribunal could have quoted and relied on cognate provisions in the Sex Discrimination Act 1975: see sections 4(1) and 63A. The provisions of section 63A do apply to a victimisation claim in the field of sex discrimination.

1. In these circumstances, although the Tribunal has applied a reverse burden of proof in reliance on legislation which contains no relevant provision for such a reverse burden, it would appear that the Tribunal could equally have relied on cognate provisions in the field of sex discrimination. At all events there is no ground of appeal concerning this point.

Submissions

1. On behalf of the Authority, Mr Self places at the forefront of his submissions the duty of the Tribunal to give adequate reasons for its decision: see Meek v City of Birmingham District Council [1987] IRLR 250 and rule 30(6) of the Employment Tribunal Rules 2004. He develops his submissions in the following main ways.

1. Firstly, he submits that the Tribunal ought to have made findings as to Miss Malik's complaint that she was the subject of victimisation in respect of the management position. He accepts that, by implication, the Tribunal must have rejected that complaint; but he points out that it was closely linked with the complaint of victimisation in the officer position. If the recruitment process for the management position was untainted by victimisation that, he submits, would be a powerful factor in weighing whether there was indeed victimisation in the officer position.

1. Secondly, he mounts an attack on the sufficiency of the reasons for finding that there was some communication between the Authority and Davis Green which indicated that the application by Miss Masih for the officer position would be unwelcome. He suggests that, logically, any such communication must have come from or at least been known to Ms Rodriguez; but the Tribunal held that she was an impressive witness and made no finding adverse to her honesty. Moreover, he submitted, there was contemporaneous support for her version of events.

1. Thirdly, he submits that the finding of victimisation made against Mr Milton is unsatisfactory. He submits that Mr Milton's explanation for not including Miss Masih in the interviews for the officer position was unchallenged at the hearing. It was not fair for the Tribunal, as it appears to have done in paragraph 12 of the reasons, to place the blame on counsel for the Authority. Further he submits that the Tribunal has not selected an appropriate comparator in paragraph 22 of its reasons.

1. Accordingly Mr Self seeks an order that the appeal be allowed and remitted for rehearing. He accepts that, even though there is no cross appeal, the whole of the proceedings must be remitted, even the part on which the Authority considers it must have been successful.

1. On behalf of Miss Masih, Mr Medhurst submits that the reasons given by the Tribunal were adequate. He places reliance on English v Emery Reimbold [2003] IRLR 710 at paragraph 21. He submits that, read against what was common ground between the parties at the hearing, the reasons suffice even if they are not readily comprehensible by an outsider. He develops his submissions as follows.

1. Firstly, he accepts that generally speaking a Tribunal ought not to take a fragmented approach to allegations of discrimination: see for example Qureshi v Victoria University of Manchester [2001] ICR 863 quoted and approved by the Court of Appeal in Anya v University of Oxford [2001] IRLR 377 at para 9. But he submits that in this case no injustice was done by treating the complaint concerning the officer position in isolation. While he accepts that the Tribunal ought to have made findings and given reasons in respect of the management position, and submits that Miss Masih could herself have brought an appeal or cross-appeal in respect of that failing, he submits that this does not amount to an error of law causing any detriment or injustice to the Authority. He submits that it is most unlikely that any finding in relation to the management position could or would have impacted on findings relating to the officer position.

1. Secondly, while he accepts that paragraph 19 of the Tribunal's reasons could have been worded more felicitously, Mr Medhurst submits that its reasoning is in fact plain. The Tribunal found, he submits, that Miss Rodriguez was the person who was responsible for the act of victimisation in June 2008.

1. Thirdly, he submits that the Tribunal made a sufficient finding that Mr Milton was responsible for an act of victimisation in August 2008; and that its reasons for doing so are sufficiently apparent from paragraph 21 of its reasons. He submits that it was not necessary for Mr Milton's explanation for his decision to be the subject of cross examination.

Conclusions

1. The duty of a court or tribunal to give reasons for its decision has been fully discussed in the judgment of the Court of Appeal in English v Emery Reimbold & Strick [2002] EWCA Civ 605 at paragraphs 15-21. It is not necessary to cite this passage in full. It suffices for the purpose of this appeal to say that a tribunal must explain what the issues were and why and how it resolved those issues, so that the parties and any appellate tribunal may readily understand and analyse the reasoning that was essential to the decision. This does not mean that every minor dispute of fact must be resolved; it does mean that a tribunal must explain how it resolved important issues between the parties, setting out its findings of fact and essential conclusions.

1. A tribunal is well advised to ensure that its reasons comply with regulation 30(6) of the Employment Tribunal Rules 2004. The rule is intended as a guide not a straitjacket: see Balfour Beatty and ors v Wilcox and ors [2006] EWCA Civ 1240 at paragraph 25. It does not necessarily follow from failure to comply with the regulation that a tribunal's judgment is vitiated by error of law. But the regulation is intended to serve the useful purpose of assisting a tribunal to ensure that it complies with the fundamental legal requirement to give adequate reasons.

1. Regulation 30(6) provides:

"Reasons

(6) Written reasons for a judgment shall include the following information

(a) the issues which the tribunal or chairman has identified as being relevant to the claim;

(b) if some identified issues were not determined, what those issues were and why they were not determined;

(c) findings of fact relevant to the issues which have been determined;

(d) a concise statement of the applicable law;

(e) how the relevant findings of fact and applicable law have been applied in order to determine the issues; and

(f) where the judgment includes an award of compensation or a determination that one party make a payment to the other, a table showing how the amount or sum has been calculated or a description of the manner in which it has been calculated."

1. We have reached the conclusion that the Tribunal has not provided proper and sufficient reasons for its judgment; that its judgment is vitiated by error of law in this respect; and that Miss Masih's claim must be remitted for re-hearing.

1. We find it helpful, first, to consider the Tribunal's failure to deal with the allegation that the Authority victimised Miss Masih in respect of the management position. This was undoubtedly a substantial and important issue in the case. Nowhere in its reasons did the Tribunal identify it as an issue or deal with it in any remotely adequate way. Nor has the Tribunal explained why it did not do so.

1. Given the nature of Miss Masih's case, and the close relationship in time between the decisions taken concerning the management position and the officer position, there was an obvious overlap between them. There is apparent force in the argument of Mr Hay that findings in relation to one would impact on the other. It was Miss Masih's case that overall she was not welcome to return to work with the Authority and was unsuccessful in both applications for that reason. It was the Authority's case that they treated her on the merits in relation to both applications. We appreciate and accept that the Tribunal was not bound to find any linkage between the treatment of Miss Masih in respect of the two applications. But we think the Tribunal, having heard lengthy evidence and submissions relating to the management position, was bound to address the question. As it is, neither the parties nor the Appeal Tribunal have any means of knowing why the Tribunal made no findings concerning the management position and why the Tribunal did not consider any findings as to the management position relevant to the officer position.

1. We turn next to the events of June 2008. We have reached the conclusion that the Tribunal has not explained adequately its finding that there was a communication between the Authority and Davis Green indicating that the application by Miss Masih for the officer position would be unwelcome. Since there will be a re-hearing we do not wish to say any more than necessary to explain our conclusion.

1. There were some contemporaneous or apparently contemporaneous documents relating to this question. The officer position was banded at a salary of £23,331 to £24,549: this is clear from an email by Ms Rodriguez dated 19 June 2008. Miss Masih applied for the officer position and provided a CV.

1. There was an email by Davis Green dated 23 June 2008 to the Authority which was headed by reference to the officer position and which described the CV as "very strong with regards to this role". In that very e mail Davis Green explicitly stated that the applicant was "outside of the salary banding, she is looking for at least £29,000". The Tribunal did not refer specifically to this email in its reasons. We are told there was an issue whether the email referred to Miss Masih. There is apparently strong support for the proposition that it referred to Miss Masih in extracts from a log kept on the system of Davis Green.

1. Ms Rodriguez certainly had dealings with Davis Green about the officer position at that time. There is a dispute as to whether she said that the salary required was too high (which would have been true) or that Miss Masih was over-qualified (which would have been at least debatable).

1. Against this background we return to the Tribunal's finding, which is described as an inference, that "there was some communication between the [Authority] and Davis Green which indicated that the application of [Miss Masih] for the officer position would be unwelcome".

1. We do not understand on what basis this inference is drawn. There is no finding as to whether the e mail dated 23 June related to Miss Masih. If it did, then it is difficult to see how an inference could be drawn that Davis Green had been told an application from Miss Masih would be unwelcome – for Davis Green put forward the CV of Ms Rodriguez with enthusiasm. If the communication was on or after receipt of the e mail dated 23 June we find it very difficult to see how it would have taken place other than through or with the involvement of Ms Rodriguez; but the Tribunal do not criticise her honesty.

1. Mr Medhurst suggested that the Tribunal, in paragraph 19, may have intended no more than to say that Ms Rodriguez had rejected Miss Masih on the grounds that she was over-qualified. To our mind, the natural reading of paragraph 19, which refers to an "inference" rather than a direct finding on primary evidence, is that the Tribunal concluded that there was sinister communication between the Authority and Davis Green. As we have said, we do not understand the basis for that conclusion.

1. We turn next to the Tribunal's finding concerning Mark Milton.

1. We think it is plain that Mr Milton was not cross examined about his explanation for the course he took. The Tribunal criticised Mr Self, counsel for the Authority, for not doing so. This criticism is misplaced. If the explanation was challenged as being wholly or in part untrue or tainted with victimisation, it would have been the task of counsel for Miss Masih to cross examine on the subject.

1. We are also doubtful about the precise basis upon which the Tribunal selected a comparator in paragraph 22 of its reasons. The appropriate comparator was an applicant to whom all relevant circumstances applied except for having undertaken a protected act. Thus, for example, the Tribunal would need to factor in what Mr Milton had been told about her previous requirement as to salary. There is no indication that the Tribunal did so.

1. For these reasons the appeal will be allowed and the case will be remitted to be reheard in its entirety by a freshly constituted Tribunal.

1. We agree with Mr Self's submission that the rehearing should encompass the management position as well as the officer position. The Authority is entitled to put forward its case (1) that it treated Miss Masih impartially without victimisation in respect of the management position, and (2) that this is a relevant factor in reaching conclusions concerning the officer position. Whether the Tribunal accepts either proposition will be a matter for the Tribunal. It also follows that if on rehearing the Tribunal finds victimisation in respect of the management position it is entitled to provide a remedy in respect of that victimisation.

1. We record also two further points. (1) We have enjoined the parties to consider conciliation afresh prior to a re-hearing. (2) For the avoidance of doubt, the position of Hayes remains unaffected. The Tribunal dismissed the claim against Hayes. Neither party has appealed against that dismissal.