Appeal No.	 EAT/377/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 May 2000
Judgment delivered on 10 October 2000

Before
THE HONOURABLE MR JUSTICE NELSON
LORD GLADWIN OF CLEE CBE JP
MR P A L PARKER CBE

MRS F MOYO	APPELLANT

WALTHAM FOREST SPECIALIST HOUSING CONSORTIUM LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	ADRIAN ILES
(of Counsel)
Instructed by:
Messrs J R Jones
Solicitors
56a The Mall
Ealing
London
W5 3TA	

For the Respondents	
EMMA DIXON
(of Counsel)
Instructed by:
Lewis Silkin
Solicitors
Windsor House
50 Victoria Street
London
SW1H 0NW	

	MR JUSTICE NELSON:	
 
1.	This is an appeal against the decision of Stratford Employment Tribunal dismissing the Appellant’s complaint against victimisation contrary to sections 2(1)(d) and 4(2)(c) of the Race Relations Act 1976, and failing to deal with her complaint of direct race discrimination under section 1(1)(a) and section 4(2)(c) of the Race Relations Act.

2.	The main ground of appeal on victimisation is that the Employment Tribunal held that a discriminator must be consciously motivated in treating the complainant less favourably, a view of the law which was incorrect in the light of the subsequent decision of the House of Lords in Nagarajan -v- London Regional Transport [1999] 3WLR 425. In relation to direct discrimination, it is contended that the Employment Tribunal should have dealt with this claim, but instead of doing so wrongly concluded that it had been abandoned by the Appellant’s representative.

The Facts.   

3.	The Appellant is a State Registered Nurse and State Certified Midwife. She has a diploma in management and is a graduate. She commenced employment as deputy manager at the Respondent’s residential home for the elderly at Flaxen Road Chingford, on the 20th January 1997. By February or March she had complained to the manager of the residential home, Goodie Adama, about two other employees at the home, Clare Partridge and Heather Handsworth who she said had displayed hostility towards her. She also experienced difficulties with another employee, Mary Lee. All three employees were white but at that stage the Appellant did not raise any racial issues with the Respondent, because, she told the Tribunal, she wished to avoid confrontation. The Appellant had also raised with Mr Adama the fact that she had been requested to produce her passport shortly after she had started work, a request to which she objected and about which she consulted the Commission for Racial Equality. 

4.	By the 24th March 1997 Mr Adama had still not embarked on the formal induction process of the Appellant which was laid down by the Respondent’s standard procedure. A further problem arose between him and the Appellant when the Appellant discussed an incident which had occurred between two residents in the home, with the Chief Executive, Mr David Naylor. The Tribunal found that Mr Adama appeared to have been annoyed that the Appellant should have had this discussion at a chance meeting with Mr Naylor. Subsequently the Applicant raised two memoranda, one explaining her meeting and the other dealing with supervision and the question of induction.

5.	When Mr Naylor saw copies of these documents and passed them on to Mrs Sellwood, the Director of Operational Services, on the 11th April it appeared to him that they indicated a break down in the relationship between the Appellant and Mr Adama. Mrs Sellwood shared his concerns.

6.	On the 18th April a report was produced by the Service Development Manager, Esther Saunders, who had been asked to write a report after the Appellant had made her criticisms of her three fellow employees. The report criticised Mr Adama’s management style, the infrequency of management team meetings, the supervision between the manager and senior staff and the lack of business meetings between the manager and the deputy. It recorded that the Appellant had made it clear that she could not continue to work at Flaxen Road and wished for a transfer.

7.	On the 27th April 1997 Clare Partridge suggested that the Appellant had abused two elderly clients. On the 29th April the Appellant complained to Mr Adama about Clare Partridge’s allegations, which he investigated, and reported on to Mr Naylor on the 12th May. Whilst this investigation was continuing Mrs Sellwood had written to the Appellant on the 7th May to tell her that she was a valuable asset and asked her to continue in her role as deputy manager at Flaxen Road.

8.	On the 13th May the Appellant responded to a note of an interview with her which Mr Adama had prepared during the course of his investigation. She described the note as deliberately misleading, that the whole distorted picture he had depicted bore no resemblance to the complaint and that her reaction was to treat his fabricated story with the contempt it deserved i.e. ignore it. As the Tribunal found, the letter was expressed in extremely strong terms referring to the orchestration of a campaign against her by Mr Adama “culminating in this dirty plot”. There are other references to “tricks” “pack of lies” and Mr Adama’s preoccupation, almost to the point of obsession, to destroy the Appellant personally. The memo is strongly critical of Mr Adama’s management. The issue of racism is raised in this note in the following terms: “it is ironic that you are the first to scream ‘Racism’ to get out of tricky situations of your own creation, but when it suits you, you use someone full of racist hatred to do the dirty job for you..”.

9.	This note was copied to Mr Naylor, Mrs Sellwood and Ms Saunders.

10.	On the 14th May 1997 the Appellant wrote to Mr Naylor dealing with the allegations of client abuse by her. In this letter she said:-

"Clare has the right to her opinions but she should keep her racist hatred to herself."
"..I encountered from Clare and another Care Officer hostility which has all the hallmarks of Racism. Little did I know then that these two had a particular white person in mind as deputy manager but the consortium thought otherwise and I then became their obvious target. In my naivety I never thought that racial hatred in a supposedly caring environment can result in a pathetic dirty plot such as this."

11.	The letter was also expressed in extremely strong terms and was highly critical of and hostile to Mr Adama. This letter was found by the Tribunal to have been received by Mr Naylor on the 2nd June 1997.

12.	The Appellant complained in a letter of the 20th May to Mr Naylor that she had not been given an adequate opportunity to deal with the complaint of client abuse made against her.

13.	On the 5th June 1997 some three days after Mr Naylor had received the Appellant’s letters of the 14th May 1997 and the 20th May 1997 on the Tribunal’s findings, she was orally suspended. On the 6th June 1997 a letter confirming the suspension was sent by Mrs Sellwood to the Appellant. It referred to an earlier discussion which Mrs Sellwood had had with the Appellant in which the Appellant had showed herself to be distressed and upset by the breakdown in the relationship between herself and Mr Adama. Mrs Sellwood also referred to the written information the Appellant had recently sent her, one part being the response to the complaint about client abuse and the other a copy of a letter to Mr Adama. This plainly refers to the note of the 13th May and the letter of the 14th May. Mrs Sellwood informed the Appellant that she should not have any contact with any other staff, clients or relatives during the suspension. Work on the client abuse complaint was to continue and Mrs Sellwood explained that she did not perceive that there had been any misconduct on the Appellant’s part.

14.	On the 22nd June Mrs Sellwood wrote to the Appellant confirming that no further action was to be taken in respect of the allegation of client abuse and that there were no findings of misconduct. The Appellant had expressed a desire to leave the Respondent’s service at a meeting on the 19th May 1997 and the letter of the 22nd June 1997 purported to treat this as a verbal resignation and accept that resignation. The Appellant was not required to return to work out her notice period “in view of the circumstances surrounding the breakdown of the relationship between yourself and the manager.”

15.	The effective date of the termination of the Appellant’s employment was the 30th June 1997. 

The Law.
1. 	Victimisation.

16.	When the Tribunal made its decision it quite properly applied the law as then set out in the Court of Appeal’s decision in Nagarajan -v- London Regional Transport [1998] IRLR 73, which required an Applicant claiming victimisation to establish conscious motivation on the part of the discriminator. The Court of Appeal decision however was overturned by the House of Lords [1999] 3WLR 425 when it was held that conscious motivation did not have to be established, but if racial grounds under section 1 or protected acts under section 2 had a significant influence on the outcome, discrimination was made out. It was therefore a matter of causation rather than conscious motivation. The question which arose under section 2 was, did the Defendant treat the employee less favourably because of his knowledge of a protected act? If he did, it mattered not whether he did so consciously or subconsciously.

2. 	Direct Discrimination.

17.	Where a concession is made before a Tribunal it can only be withdrawn in exceptional circumstances and for compelling reasons, particularly if the concession would necessitate the case being remitted to the Tribunal for further evidence. Harvey on Industrial Relations and Employment Law para. T1602-4.

18.	Where a dispute arises as to what occurred during the course of a Tribunal hearing the chairman’s record of events has to be accepted as accurate unless both sides agree that his recollection is incomplete or imperfect. Dexine Rubber Co. Limited -v- Alker [1977] ICR 434 at 438. 

The Employment Tribunal decision.

19.	The Tribunal found that the Appellant had not resigned but had been dismissed, and that her dismissal amounted to less than favourable treatment. They nevertheless rejected the victimisation claim upon the basis that conscious motivation for the acts complained of had not been established and that as a consequence such less favourable treatment as they had found was not by reason of the allegations made by the Appellant in the memo of the 13th May and the letter of the 14th May.

20.	At the heart of the Tribunal decision on the victimisation claim was their consideration of the evidence of Mr Naylor and Mrs Sellwood and in particular their response to the memo of the 13th May and the letter of the 14th May.

21.	In paragraph 4 of their decision where it was stated that the Tribunal was making findings of fact, it was said at (q):-

"Although both Mrs Sellwood and Mr Naylor read the Applicant’s memo to Mr Adama of 13 May, and her letter to Mr Naylor of 14 May, which contained reference to racism, their evidence to the Tribunal was that they had ‘missed’ these, reading them as part a general and vehement complaint against Mr Adama which led them to conclude that the relationship between Mr Adama and the Applicant had broken down."

22.	At that stage of their decision therefore the Tribunal were reciting the evidence rather than, as the opening sentence of paragraph 14 suggested, making a finding of fact. In paragraph 7(c) however they clearly were making a finding of fact when they said as follows:-

"It is clear from Nagarajan that for an employer to be found to have discriminated, there must be a conscious motivation for the acts complained of. For the Tribunal to find victimisation therefore it must reject the evidence of Mr Naylor and Mrs Sellwood that notwithstanding the memos referred to, they were not conscious of the Applicant’s complaints of racism and were not influenced by them in either of the suspension or the subsequent dismissal. The Tribunal finds that the Respondent’s suspension and dismissal of the Applicant amounted to less favourable treatment but, after the most careful consideration of the evidence and all the surrounding circumstances has concluded that such less favourable treatment was not ‘by reason of’ the allegations made by the Applicant of the memo of 13 May and the letter of 14 May."

23.	The Tribunal were not therefore satisfied that conscious motivation had been established. They were clearly, having set the Court of Appeal test in Nagarajan only looking at the matter from the point of view of conscious motivation. We are satisfied that when they say Mr Naylor and Mrs Sellwood were not influenced by the complaint of racism, they must be taken to have meant not ‘consciously’ influenced by such complaints. This is the only sensible interpretation of the published decision and is not dependent upon the chairman’s confirmation that the question of subconscious influence was considered but no finding made upon it in view of the Court of Appeal’s decision in Nagarajan. It is clear from the face of the decision that they were only considering conscious motivation.

24.	As to direct discrimination the Tribunal noted in paragraph 1 of their decision that the Applicant had complained of racial discrimination but at the hearing confined this to a complaint of victimisation. In paragraph 5(d) they noted that the Respondent’s representative did not make submissions about less favourable treatment on racial grounds since the Applicant had confined her complaint to the issue of victimisation. They noted that the Applicant’s representative submitted that she had lost her job as a direct result of her complaint of victimisation and racial discrimination and the Appellant relies upon this as indicating that the claim under section 1 had not been withdrawn.

25.	The Appellant’s representative at the Tribunal hearing, Mr David Knight, a branch secretary employed by Unison has deposed in an affidavit that he highlighted the claims of victimisation and race discrimination and that it was his view that those claims were not withdrawn or abandoned during the Tribunal hearing. He says that race discrimination was a live issue at the hearing and he clearly recollected raising and highlighting the relevant letter and memo of the 13th and 14th May.

26.	In his comments on Mr Knight’s affidavit, the Chairman states that Mr Knight’s account is not accurate. At the outset Mr Knight had said that the complaint was one of victimisation and that the earlier allegations of discrimination played a part but that the Appellant’s complaint had not been investigated. The Chairman states that the Tribunal was in no doubt following what was said at that stage by the parties’ representatives that it was being asked to consider a complaint solely under section 2 of the Act.

27.	The matter was raised again however on the final day when before closing submissions the Respondent’s representative asked for clarification as to the allegation being made. The hearing was specifically adjourned for some fifteen minutes for Mr Knight to take instructions, and when he had done so he informed the Tribunal that he was relying on section 2(1)(d) of the Act and the claim was one of victimisation. In his closing submission Mr Knight said that the Appellant had lost her job as a direct result of claiming victimisation and race discrimination, but added that on making a claim of discrimination an employee should be protected from victimisation.

28.	The Chairman concludes in his comments by stating that the Tribunal considered the Appellant’s claim on the basis that it was one of victimisation.

29.	The Respondent’s solicitor recollects that the claim of direct race discrimination was abandoned prior to closing submissions and the Respondent’s deputy Chief Executive Mrs Sellwood agreed with the Chairman’s comments.

The Submissions.

1. 	The victimisation claim.

30.	The Appellant submitted that the Tribunal did not find what the reason was for the Appellant’s dismissal and hence could not have considered the question of causation properly. They could not have considered subconscious motivation.

31.	It is further submitted that the Tribunal did not positively accept the evidence of Mr Naylor and Mrs Sellwood but simply did not reject it. This re-inforces the view that they had not come to a conclusion on the whole of their evidence. For example they did not consider whether Mr Naylor and Mrs Sellwood might have believed that they had “missed” the racism references save in the context of the complaint against Mr Adama, but nevertheless had been significantly influenced by their knowledge of the complaints, albeit subconsciously.

32.	In any event the Appellant submits, if a finding that Mr Naylor and Mrs Sellwood had “missed” the references to racism save as part of a general and vehement complaint against Mr Adama was made, that finding was perverse given the explicit nature of the allegations of racism, the fact that the Respondent’s counsel conceded that the Applicant’s various memoranda influenced the Respondent’s treatment of  the Applicant, and given that the breakdown in the relationship between Mr Adama and the Appellant was clear long before the 13th and 14th of May when the only new matters were the allegations of racism. The only proper inference to draw in those circumstances was that the dismissal was because of those racist allegations. Furthermore, why was the Appellant suspended as soon as those letters had been received? Why was she not found an alternative job, and why was she effectively ostracised whilst under suspension unless it was due to the racist allegations.

33.	The Respondent submits that the Tribunal explicitly found that the complaint of racism had no influence on the decision to suspend or dismiss and that the key to this matter is the Tribunal’s finding of fact which when paragraphs 4(q) and 7(c) are read together is clearly that Mr Naylor’s evidence and Mrs Sellwood’s evidence was accepted. The Tribunal were finding, by accepting that evidence, that the suspension and ultimate dismissal was because of the vehemence of the complaint made against Mr Adama and not any other reason.

34.	Upon that basis the new Nagarajan test of causation if applied would inevitably lead to the same result, namely the dismissal of the victimisation claim.

35.	As to the concession made by the Respondent’s representative, it is clear that the letter and memorandum did influence Mr Naylor and Mrs Sellwood, not in so far as racism is concerned but in the tone and irrationality of the documents which led to the irretrievable breakdown of the relationship between the Appellant and Mr Adama. The documents showed the complete breakdown of the relationship, and the allegations of racism were seen solely in that context. The finding was therefore, the Respondent submits, not perverse. The memo of the 13th May and the letter of the 14th May amply demonstrated that there had been a complete breakdown in the relationship and confirmed the need for that to be formally terminated. The documents demonstrated the hostility and the extent of the breakdown and hence the fact that it was her vehemence rather than the inclusion of racist allegations that was, as the Tribunal effectively found, the cause of the dismissal.

36.	The finding on Mr Naylor’s and Mrs Sellwood’s evidence was one which the Tribunal were perfectly entitled to make.

2. 	Direct discrimination.

37.	It is submitted on behalf of the Appellant that she clearly did not believe that her claim for direct discrimination had been abandoned nor did her representative believe that he had abandoned it. The reference in the decision to Mr Knight’s submitting that she had lost her job as a direct result of victimisation and racial discrimination and paragraph 6 of the Chairman’s comments supporting that, shows that it was not clear that any abandonment had been made. In these circumstances the only just course is for the matter to be remitted to a different Tribunal.

38.	The Respondent submits that there was a clear abandonment on the evidence and the Tribunal rightly treated it as such. Mr Knight’s affidavit is vague and the recollection of the Chairman and the Respondent is clear.

The Findings.

1.	The victimisation claim.

39.	The Tribunal were guided by the decision of the Court of Appeal in Nagarajan. They therefore set themselves the test of deciding whether there was conscious motivation on the part of Mr Naylor and Mrs Sellwood to treat the Appellant less favourably because of her complaints of racism. We are satisfied for these reasons and from the wording of the decision itself, that their findings related solely to the question of conscious motivation.

40.	The question still remains however as to whether their findings are such that even if they had been considering the new House of Lords Nagarajan test they would inevitably have come to the same conclusion because they have in effect considered the question of causation and decided it in the Respondent’s favour.

41.	We are not however satisfied that the Tribunal did consider the question of causation as a whole. When they found that there was no conscious motivation on the part of Mr Naylor and Mrs Sellwood, they were on the face of it accepting their evidence that they had “missed” the complaints of racism in the memo of the 13th May and the letter of the 14th May. They were not however finding that they had failed to notice them at all, merely that they had “missed” them in the context of separate allegations of racial discrimination. Mr Naylor and Mrs Sellwood told the Tribunal that they read the references to racism as part of a general and vehement complaint against Mr Adama. (Paragraph 4(q)) The Tribunal at paragraph 7(c) therefore appear to be finding that Mr Naylor and Mrs Sellwood knew of the allegations of racism but were only conscious of them as part of the general complaint against Mr Adama. On the face of their judgment the Tribunal had not addressed their minds to the question of whether, being aware of the allegations of racism, albeit only a small part of the general complaint against Mr Adama, they were nevertheless subconsciously influenced by the fact that they had been made against Clare Partridge and another care officer and, it was further alleged, used by Mr Adama himself.

42.	It does not in our view follow from the decision that the Tribunal were finding that the Appellant was suspended and ultimately dismissed only because of the vehemence of her complaint against Mr Adama, even if that was a major factor. The question as to whether the allegations of racism which had been made were also a cause or significant influence was not considered. We do not feel it proper to infer from the decision that the Tribunal identified the reason for suspension and dismissal or that they found there was only one reason, namely the vehemence of the complaint against Mr Adama.

43.	We do not therefore consider that it can properly be said that the decision of the Employment Tribunal has provided an answer which would inevitably produce the same result if the new Nagarajan test was to be applied by them. The question of subconscious motivation still falls to be decided.

44.	We are however equally clear in our view that the decision of the Tribunal was not perverse. They heard the Appellant’s witnesses and those of the Respondent and clearly considered all the evidence with care, directing themselves in particular to the specific issue of whether or not Mr Naylor and Mrs Sellwood had conscious motivation. The Appellant had not raised racism initially when Mr Naylor and Mrs Sellwood started to deal with the matter and it was open to the Tribunal to accept the evidence of Mr Naylor and Mrs Sellwood that they thought the letters indicated a complete breakdown in the relationship between the Appellant and Mr Adama given the strength of feeling and hostility expressed in both the memo of the 13th May and the letter of the 14th May. The contents of these particular documents were so hostile and so vehement that they confirmed that the situation was indeed irretrievable. It was open to the Tribunal to accept Mr Naylor’s and Mrs Sellwood’s evidence, that against the background of the matter as they saw it, the allegations of racism were in essence another part of the vigorous attack on Mr Adama. Such a finding however, still begs the question of whether Mr Naylor and Mrs Sellwood subconsciously took into account the fact that allegations of racism had been made when suspending and then dismissing the Appellant. 

45.	Whilst the documents do without doubt contain complaints of racism, the Tribunal had the advantage of seeing and hearing the witnesses, and in particular on this issue Mr Naylor and Mrs Sellwood and were able to and did assess that evidence. The Respondent’s concession that these documents did influence Mr Naylor and Mrs Sellwood does not demonstrate that the decision was unreasonable as the concession was not that the allegations of racism had influenced them but that the vehemence of the complaint leading to irretrievable breakdown had influenced them.

46.	We are not satisfied that there any proper grounds for holding that the Employment Tribunal’s decision was perverse.

2. 	Direct discrimination.

47.	The Tribunal was in no doubt that they were hearing a complaint under section 2 of the Act in relation to victimisation. As the line between a separate claim for racial discrimination and racial allegations as part of victimisation can become blurred the Respondent’s representative asked to know precisely what the allegations were before making her closing submission.

48.	After an adjournment the Appellant’s representative told the Tribunal that he was relying on section 2 and the claim was one of victimisation, as a consequence of which the Respondent’s representative made closing submissions only on that claim. The Respondent and the Respondent’s solicitors both share the same view of what occurred at the proceedings as the Chairman.

49.	The affidavit of Mr Knight is at best somewhat unclear. He refers to matters being his “view” and “highlighting” race discrimination but he does not deal expressly with the fact that a short adjournment was specifically granted so that he could state with clarity what was being pursued and what was not being pursued and that both the Tribunal and the Respondent considered that he had, after that adjournment, abandoned the claim in respect of race discrimination under section 1 of the Act.

50.	We are satisfied that the claim in respect of direct discrimination was abandoned before closing submissions and as a consequence no claim under section 1 was dealt with by the Respondent’s representative in closing submissions.

51.	We are satisfied that the concession was made that the claim was only under section 2, that the Tribunal and the Respondent acted on it and that there are no exceptional circumstances or compelling reasons which would permit the concession to be withdrawn now however much it is regretted that it was made.

Conclusions.

52.	The appeal in respect of the victimisation claim is therefore allowed. The matter must be remitted for consideration of causation in accordance with the correct principles under Nagarajan. We invite submissions in writing from the parties within 21 days as to whether this should be dealt with by the Tribunal which made the decision now appealed against or whether it should be dealt with by a different Tribunal.

53.	The appeal in respect of the claim for direct discrimination is dismissed.