The claimant was a teacher who had had a lesson observation undertaken by her line manager. The lesson was found to be unsatisfactory and the claimant compiled a response to the findings which was also sent to the Principal and her union representative. The claimant did not receive a response. The claimant brought a claim of direct race discrimination to the ET which was rejected apart from in one respect – namely, a ‘failure to reply to her written comments about her lesson observation’. The Tribunal found that the reason for not replying was a fear that the claimant would bring a complaint (because the union was copied in to the email by the claimant). It found that it could draw the conclusion that it was the claimant’s race/colour and the fear of a race claim which prompted the failure and it held that it was not satisfied that the explanation had nothing whatsoever to do with race. The respondent appealed.

The EAT allowed the appeal. The issue raised by the claimant in her ET1, and in her further and better particulars, referred to the claimant not being given the opportunity to have follow up sessions on pupil progress.  It had nothing to do with replying to an email.  It was neither permissible nor appropriate to treat the issue as encompassing failure to reply to the email.  The failure to reply to the email was never properly or sufficiently raised by the claimant as an allegation of race discrimination.

_______________________

Appeal No. UKEAT/0220/12/LA

EMPLOYMENT APPEAL TRIBUNAL

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

At the Tribunal

On 21 August 2012

Before

HIS HONOUR JUDGE DAVID RICHARDSON

MR T HAYWOOD

MR D NORMAN

UNITED LEARNING TRUST (APPELLANT)

MISS H E ROSE (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MS HOLLY STOUT (of Counsel)
Instructed by:
Hegarty LLP Solicitors
48 Broadway
Peterborough
Cambridgeshire
PE1 1YW

For the Respondent
MR PAUL HAINSWORTH (Representative)
Free Representation Unit
Ground Floor
60 Grays Inn Road
London
WC1X 8LU

RACE DISCRIMINATION – Direct

PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity

The Tribunal for the most part rejected the Claimant's claim of race discrimination, but found that the Respondent had discriminated against her on the grounds of race by failing to reply to an email. This, however, was not put forward in Further and Better Particulars or defined by the Claimant's list of issues as an allegation for the Tribunal to consider. Finding set aside.

1. This is an appeal by United Learning Trust, hereby ULT, against one finding within a Judgment of the Employment Tribunal sitting in London South, Employment Judge Corrigan presiding dated 17 January 2012.

1. For the most part the Tribunal rejected a claim of direct race discrimination brought by Miss Hyacinth Rose against ULT, but it said that her claim was well founded in one respect – namely, "failure to reply to her written comments about her lesson observation". This is a reference to a failure to reply to a specific email dated 10 November 2009.

1. ULT says that this finding was flawed in two respects. Firstly, the failure in question was never defined as an alleged act of discrimination as opposed to a matter of background or general complaint. Secondly, the Tribunal's reasoning - in particular, its application of the burden of proof - cannot be sustained.

1. Miss Rose was employed by ULT as a science teacher at its Lambeth Academy with effect from 1 September 2007. On 28 April 2010 she brought a claim to the Tribunal, she described it as being submitted "on the grounds of racial discrimination and other complaints."

1. Under the box for discrimination three areas were listed. Under the box for other complaints five areas were listed; one of these related to faulty lesson observation. There was a passing reference saying;

"No response as yet to complaints made November 2009."

1. This claim form did not give ULT any real detail as to the case which it had to meet. Accordingly, by direction of the Tribunal, given on 14 June 2010, the Claimant was ordered to give particulars. On 2 August 2010 the Claimant lodged a document entitled, "Further Particulars of Race Discrimination Claim" in response to the Tribunal's direction. This document ran to 73 paragraphs over 12 pages. The Claimant's advocate describes it in his skeleton argument as rambling, discursive and unfocussed: we agree. It set out a good deal of narrative and made numerous complaints - some, not all, concerning Mr Petch.

1. It is noteworthy, however, that this document did specifically identify certain matters as allegations of less favourable treatment on the grounds of race. Specific references were made at various points to actual white comparators. The phrases used were "Inconsistent treatment on grounds of race" or, "Less favourable treatment".

1. The Further and Better Particulars complained, in paragraphs 57 to 63, about Mr Petch's observation of the Claimant's lessons in November 2009. Within that section of the document paragraph 61 stated:

"As a result of the unsatisfactory observation the Claimant compiled a response to the findings of the observation which was sent to Mr Petch, the Principal and the Claimant's union representative. The Claimant did not receive a response."

1. It is noteworthy that paragraph 61 was not said to be "inconsistent treatment" or "less favourable treatment". Reading the Further and Better Particulars, there is an obvious contrast between paragraph 61 and surrounding paragraphs where specific allegations of treatment inconsistent with white colleagues were made.

1. Witness statements were exchanged between the parties. The Claimant's witness statement ran to some 180 paragraphs over 32 pages. In paragraph 140 there was a reference to writing a letter to Mr Petch and not getting a reply. Given the context of this paragraph, it must, we think, be a reference to the email dated 10 November. Mr Petch's witness statement was shorter; some seven pages. It was framed by reference to the Further and Better Particulars, so it contained a response to paragraph 61, which we have cited. Mr Petch said in paragraph 19 of his statement:

"The Claimant sent me an email following the observation. Her email is dated 10 November 2009 (pages 98 to 99). I did not respond to it. I did discuss it with Mr Potter. He told me that the Claimant was threatening to raise a Grievance and as a result advised me against individually responding to it."

1. At the hearing Miss Rose was represented by counsel. He prepared a short document entitled "Schedule of Allegations". It listed out just six allegations in broad terms. Allegation five read as follows:

"The Claimant was subjected to unfair observation and criticism of her teaching by Mr Petch. In particular:

5.1 She was marked as being unsatisfactory.

5.2 She was observed by Mr Petch together with other senior staff.

5.3 She was not given the opportunity to have follow-up sessions on pupil progress."

1. This list reflects allegations made in paragraphs 57 to 63 of the Further and Better Particulars. There is no reference in the list, however, to the email or failure to reply to the email. The Tribunal slightly re-ordered this list so that paragraph five became paragraph 4.1.6 of its list of issues. It recorded the list as "The issues for the Tribunal to consider agreed with the parties at the outset and during the hearing". ULT was represented by a consultant, Mr Bloom.

1. It is common ground, and in any event we find, that at the hearing counsel for the Claimant did not cross examine Mr Petch concerning any failure to reply to the email. The Tribunal, however, did ask questions. Mr Petch said that it was in fact his line manager, Ms Blunn, to whom he spoke about the email, not Mr Potter as his witness statement suggested.

1. In paragraph 74 of its reasons the Tribunal said the following:

"At some point the week before the 11 November 2009 the Claimant was aware she had another lesson observation on 11 November 2009. On 10 November 2009, the day before the next observation, the Claimant sent a lengthy email addressing a number of issues about the October observation (pp98-99) which was her response to page 95. It included a reference to the fact that Mr Petch had observed a year 9 class and not year 8 as he had put on the observation. Mr Petch noted that it was copied to the union. Fearing that this indicated an intention to take matters further and a complaint, he spoke to his line manager, Ms Blunn, who counselled that he did not reply. He did not reply or even acknowledge it, despite the fact he had invited comments/queries in his email at page 95. He felt the matters had been covered in the briefing session in Mr Potter's office but he did not reply to the Claimant to say so. He said in evidence that he was not sure what the Claimant intended to do and in the context that she was making allegations he said he did not know if it would be "racial or anything". The Claimant had not raised the possibility of race discrimination at this stage and the way this evidence was put by Mr Petch was in part influenced by hindsight and the Claimant's current claim."

1. It is common ground and in any event we find that at the hearing counsel for the Claimant did not make any final submissions on this issue. The Tribunal recorded that the Respondent's representative did make some submissions, accepting that it was not good practice to fail to reply to the email but saying that it was the decision of a senior manager, Ms Blunn.

1. The Tribunal set out findings of primary fact in paragraphs 12-80 of its reasons. It set out the law in paragraphs 81 to 84 making a reference to section 54A of the Race Relations Act 1976 (which is concerned with the burden of proof) and to cases on that subject.

1. The Tribunal rejected all the allegations of race discrimination except the one with which we are concerned. As regards a general allegation of discriminatory treatment by Mr Petch it said:

"We find there is no evidence that Mr Petch treated the Claimant less favourably generally on grounds of colour/national origin. We find there is evidence of him line managing the Claimant in a firm and direct way when there were genuine issues about her performance including her attendance at meetings and provision of cover work. Issues also arose due to the fact that she was teaching two different courses and had two different line managers."

1. The Tribunal also rejected specific allegations against Mr Petch. As regards issues 5.1 and 5.2 and 5.3 it found in paragraphs 103 to 108 that there was no discriminatory treatment.

1. The Tribunal had said paragraph 7 of its Judgment:

"By the end of the hearing the complaint at 4.1.6.3 was effectively the complaint that Mr Petch had failed to reply to the Claimant's email on 10 November 2009 setting out concerns and questions about her lesson observation."

1. The Tribunal dealt with that complaint at paragraphs 109 to 115 of its reasons. This is a lengthy passage. We will not set it out in full in this Judgment. Suffice it to say that the Tribunal accepted that the decision not to reply to the email was that of Ms Blunn. It found that the reason for not replying was a fear that the Claimant would bring a complaint (because the union was copied in to the email by the Claimant). It found that it could draw the conclusion that it was the Claimant's race/colour and the fear of a race claim which prompted the failure and it held that it was not satisfied that the explanation had nothing whatsoever to do with race:

"As Mr Petch himself made reference to the fact that he did not know what the Claimant intended and used the phrase, 'racial or anything'."

1. On behalf of ULT, Ms Holly Stout submits that the Tribunal's finding was procedurally unfair. At no point, she submits, was the matter identified as alleged act of discrimination rather than as a matter of background or general complaint. She submitted that it was not for the Tribunal to decide issues which were not before it or re-characterise what was merely a matter of background as a cause of complaint. She took us to Chapman v Simon [1994] IRLR 124, British Gas Services Ltd v McCaull [2002] IRLR 60 and [Land Rover v Short ]()[2011] UKEAT/0496/10/0610. In the result a finding of race discrimination was made, either against Mr Petch, a teacher of some standing who had never previously been the subject of an allegation of race discrimination or against Ms Blunn, a line manager not called at the hearing, which was never distinctly raised as an issue or put fairly and squarely.

1. She submits that if the matter had been raised as a distinct issue, Mr Petch might have given evidence as to whether in reality he was treating Miss Rose differently to the way he would have treated another teacher in such circumstances and Ms Blunn might have been called to give evidence as to the advice upon which he acted.

1. Miss Stout further argues that the Employment Tribunal did not correctly apply the burden or proof provision in section 54A of the Race Relation Act 1976 and did not construct the appropriate comparator. She submits that the Tribunal's findings of primary fact could not justify its conclusion (whether or not the burden of proof transferred) and that it engaged in speculation.

1. On behalf of Miss Rose, Mr Hainsworth who is instructed under the auspices of the Free Representation Unit, submits that the issue of failure to reply to the email was sufficiently raised. It was in the claim form, the Further and Better Particulars and the witness statements. The Tribunal was entitled to consider that it was encompassed under issue 4.1.6.3. There was nothing to prevent ULT calling Ms Blunn if she had something to add to what Mr Petch said, but it is improbable that she could have done so. ULT's advocate had a sufficient opportunity to call evidence on the issue and address the Tribunal upon it. The cases upon which Ms Stout relied were distinguishable on their facts.

1. As regards the burden of proof, Mr Hainsworth submitted that the Tribunal did not only rely on a difference of race and a difference of treatment; the Tribunal took into account its experience of employment matters when deciding how a hypothetical comparator would have been treated and also relied on Mr Petch's answer to it including the phrase "racial or anything" to which we have referred. The Tribunal, he submitted, was entitled to do; it neither committed an error of law nor was perverse. Moreover the Tribunal sufficiently stated the comparator.

1. Counsel took us to familiar authorities (1) on the question of the burden of proof in discrimination cases, particularly Igen Ltd v Wong [2005] ICR 931 and Madarassy v Nomura International plc [2007] ICR 867 and (2) on the question of perversity, including Yeboah v Crofton [2002] IRLR 634 and Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440. We do not think the case calls for any extended consideration of those authorities.

1. The statutory background is found in the Race Relations Act 1976 which was the relevant statute at all times material to this case. The combined effect of section 1(1)(a) and section 4(2)(c) of the 1976 Act was to prohibit direct discrimination against an employee by subjecting her to detriment. Section 54A set out the reverse burden of proof.

1. In paragraph 109 of its reasons the Tribunal treated the question of failure to address Miss Rose's email as the final aspect of what Miss Rose's counsel had drafted as issue 5. We have already quoted the terms of this issue. In our judgment, the Tribunal was certainly wrong. This issue related to, "subjecting the Claimant to unfair observation and criticism of her teaching". Specifically it referred to the Claimant not being given the opportunity to have follow up sessions on pupil progress. It had nothing to do with replying to an email. It was neither permissible nor appropriate to treat the issue as encompassing failure to reply to the email.

1. In our judgment failure to reply to the email was never properly or sufficiently raised by the Claimant as an allegation of race discrimination. The Tribunal had rightly ordered particulars to be given of the claim form. As we have seen, paragraph 61 of the Particulars, in contra-distinction to the paragraphs around it, did not allege inconsistent treatment on the grounds of race.

1. In our judgment counsel for the Claimant properly and accurately set out the Claimant's case in this respect in the listed issues which he drafted. Paragraph 4.1.6.3 was dealing with a different issue - found in paragraphs 57 and 58 of the Particulars. Counsel for the Claimant was, in our judgment, correct not to cross examine or make closing submissions in relation to failure to reply to the email. It was, in reality, not put forward as an allegation of direct race discrimination.

1. We do not underestimate the difficulty faced by advocates and Tribunals when a Claimant is alleging discrimination over a lengthy period. They are likely to be faced, as they were in this case, with particulars, statements and disclosure covering a wide range of complaints, some of which will be pursued as specific allegations of race discrimination, some of which will be no more than background, some of which will be mere narrative and some which will be matters of no significance at all.

1. If justice is to be done to both sides, it must be clear by the time of the Tribunal hearing which specific allegations are said to be instances of direct discrimination. Requiring clarity serves those who bring claims - for otherwise matters of importance may be missed. Fairness requires that those who face allegations of race discrimination know what they are. Precision is necessary if the parties are to make informed decisions on questions of evidence and submissions and if the Tribunal is to deal with the issues properly.

1. In this case failure to reply to the email was not listed as an issue. The Claimant's counsel did not cross examine on it or deal with it in submissions. The Tribunal, however, took an interest in it and asked a limited number of questions about it, apparently considering that it could be treated as encompassed within issue five. In our judgment it was wrong to do so.

1. In British Gas Services Ltd v McCaull [2001] IRLR 60 at paragraph 31, Keane LJ said:

"It is important that tribunals in such cases should deal with the complaints of "less favourable treatment" as they are defined by the applicant and not as the Tribunal subsequently chooses to define them. If a tribunal finds less favourable treatment in some act or omission of which the applicant has not complained there is a grave danger that there will have been a breach of the rules of natural justice because the other party will not have been put on notice that this might be held against it. This seems to us to have happened here, possibly because the tribunal was focusing on whether there were any differences between the treatment of the respondent and that received by others absent from work for a long time for reasons not related to disability. But however it happened, the end result was that the appellant was deprived of the opportunity to deal in its submissions with this potential category of less favourable treatment. It did not receive a fair hearing and the decision in consequence cannot stand."

1. In our judgment, for the reasons we have given, the allegation concerning the email was never properly put as an allegation of race discrimination. If it had been Mr Petch would have been asked questions in cross examination and re-examination. Consideration could have been given to calling Ms Blunn whose involvement, despite Mr Petch's mistake in his witness statement, was plain from a contemporaneous email.

1. It follows that the appeal must be allowed and the finding of race discrimination altogether set aside.

1. Although we have heard argument on the question whether the Tribunal was entitled to draw an inference of race discrimination or find that the burden of proof had transferred, we do not propose to deal with that issue at length in this judgment. The Tribunal drew conclusions from extremely limited evidence. If the question of replying to the email had been truly been an issue and defined as such it would have been the subject of much more careful evidence and submissions. We do not find it helpful to subject to detailed analysis reasoning of the Tribunal which concerned an issue never properly before the Tribunal at all. It is sufficient to say that the Tribunal's finding of unlawful race discrimination is entirely set aside.