Appeal No. UKEATPA/1375/08/JOJ

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 9 September 2009

Before
HIS HONOUR JUDGE McMULLEN QC
(SITTING ALONE)

MRS C HOOPER	APPELLANT

SHERBORNE SCHOOL	RESPONDENT

Transcript of Proceedings

JUDGMENT

RULE 3(10) APPLICATION – APPELLANT ONLY

	APPEARANCES

For the Appellant	MR R C HOOPER
(Representative)	

SUMMARY
VICTIMISATION DISCRIMINATION
PRACTICE AND PROCEDURE
New evidence on appeal
Costs

The Employment Tribunal was right to reject the Claimant’s victimisation claim. It disbelieved her allegation that she saw the solicitor representing her previous employer in her first unsuccessful race discrimination visit her current employer.
The Employment Tribunal did not err when it awarded £7000 costs against her, taking into account that she had refused a payment to her in settlement of £5000.
An application to raise a new point based on the Respondent’s suspicion under Race Relations Act 1976 s2(1) that the Claimant had made an earlier claim was refused. This is a disjunctive and separate head from the issue defined at the outset, based on knowledge and would require further investigation by the Employment Tribunal: principles approved in CELTEC v Astley [2006] IRLR 635 HL applied.

HIS HONOUR JUDGE McMULLEN QC
1.	This case is about victimisation, the Claimant having made a claim of race discrimination against a former employer.  I will refer to the parties as the Claimant, Mrs Hooper, and the Respondent, Sherborne School.

Introduction
2.	It is an appeal by the Claimant in those proceedings against the judgment of an Employment Tribunal sitting at Southampton under the chairmanship of Employment Judge Ross registered with reasons on 16 September 2008 following a two-day hearing.  The Claimant, who does not attend today, was represented there and here by her husband, and the Respondent by counsel.

3.	The Claimant contended that she was victimised.  The Tribunal found against her, and on the Respondent’s application ordered her to contribute to the Respondent’s costs, which had been £25,000, in the sum of £7,000.  Both those judgments are the subject of today’s application.

4.	The issue presented to the Employment Tribunal was the following:
“1. The Claimant claims that by initiating proceedings against an earlier employer the Respondent on learning that she was involved in Tribunal proceedings dismissed her and that this was a detriment amounting to victimisation under Section 2(1)(a) of the Race Relations Act 1976 and therefore amounted to discrimination contrary to the 1976 Act. 

2. The Respondents deny the claim.  The Respondents claim that the Claimant was dismissed for poor performance and that at the time of dismissal they were unaware that the Claimant had initiated a claim under the 1976 Act against her former employer.” 

5.	In Haritaki v SEEDA EATPA/0006/08 at paragraphs 1 to 13, I set out my approach to hearings under Rule 3, and it should be read with this judgment.

6.	On the sift of this Notice of Appeal, Underhill P stayed the proceedings pending a review.  The review was refused. The matter then came before him for consideration of the original and the review Judgments under Rule 3. He rejected it, mainly as it raised matters of fact. 

7.	Dissatisfied with that, the Claimant brought a fresh appeal under Rule 3(8), dropping some and making some new contentions. It came before HHJ Peter Clark, who said:
“The fresh grounds of appeal set out a number of legal principles unrelated to the fact of the case but the reality is that the Appellant was found to be a stranger to the truth, particularly in relation to the alleged encounter with Mrs Evans on 19 March 2007, relied on to support her victimisation claim.  Having been disbelieved (and rejected an offer of £5000) the Respondent was put to costs of £25,000 in defending this spurious claim.  The costs order of £7,000 made by the Employment Tribunal against the Appellant was wholly justified.” 

8.	I hear the matter afresh as a renewed application under Rule 3.  The question for me is whether there is any reasonable prospect of success.

The legislation
9.	The legislation is not in dispute: see para 4 above. If an employee has brought proceedings and suffers a detriment or dismissal as a result, that constitutes victimisation.

The facts
10.	There is a simple factual dispute.  The Claimant is black.  She had previously been employed by Colten Care.  She brought proceedings against them and attended at an Employment Tribunal on 26 February 2007.  She had already commenced employment with the current Respondent on 3 January 2007, a large independent school in Dorset, and she therefore needed the day off.  She was deceitful about the reason for having that day off, and it came to the attention of the Respondent that she had been involved in Employment Tribunal proceedings that day.  The Respondent did not know what the proceedings were, what her role was or, as Mr Hooper contends before me today, that it was her case and she was suing Colten Care for race discrimination.  The Respondent had a number of issues to raise with the Claimant about her performance during the course of her employment, which was probationary.

11.	On 19 March 2007, the Claimant contended that she saw Mrs Evans at the school.  Mrs Evans is the solicitor from Messrs Lester Aldridge who is in charge of the case for Colten Care, which the Claimant had attended in February.  The Claimant put two and two together to say that Mrs Evans was there to tell the Respondent of the other proceedings, which the Claimant also lost.  Mr Hooper does not shrink from the allegation he now makes that there was collusion between the legal representatives of the two employers.  

12.	The Tribunal heard Mrs Evans and the Claimant.  The Claimant was not telling the truth.  Mrs Evans had never attended Sherborne School.  The Tribunal gave cogent reasons why it preferred Mrs Evans over the Claimant:
“10. 	The Tribunal has considered the evidence of Mrs Evans and the Claimant on this matter and accept, on the balance of probabilities, the evidence of Mrs Evans for a number of reasons.  Firstly the Claimant had certainly lied on other occasions.  She had denied that at the meeting on 15 March her performance had been discussed whereas her own letter to the Respondents confirms that the subject had been raised.  She also admitted that she had lied about the reason for her absence on 26 February.  The Tribunal are also concerned that the appearance of Mrs Evans at the school, if that were true, would allow the Claimant to set up the claim that she had been victimised by the Respondents because they were aware of her Tribunal proceedings and the nature of those proceedings.  Finally the Tribunal could not see any reason whatsoever why Mrs Evans would appear at the Tribunal and lie.  She had absolutely no reason to do so.” 

13.	The Claimant accepted that the evidence as to a linkage between the Respondent’s knowledge of her making a race relations claim and her dismissal had to be that Mrs Evans told the Respondent.  Having rejected the Claimant’s evidence and accepted Mrs Evans’, the Claimant clearly failed.  In doing so, the Tribunal looked at the diary of Mrs Evans and records of those attending the school as visitors. She was not there. Essentially, this was a dispute between the Claimant and Mrs Evans as to whether Mrs Evans was there. Having found Mrs Evans was not there, it found that the Respondent was not aware of the nature of the Claimant’s Tribunal proceedings and dismissed the claim.

14.	The Tribunal then considered an application by the Respondent for its costs on the ground that the Claimant and her representative had conducted the proceedings unreasonably (Twice in paragraph 16 dealing with the costs order the Employment Tribunal records the date 19 November but it is, I agree with Mr Hooper, 19 March 2007).  This includes a reflection that the Claimant rejected an offer.  An offer of £5,000 to settle the claim at an early stage is a factor that the Employment Tribunal is entitled to take into account in awarding costs.  It decided it would not need to consider ability to pay, and no argument has been addressed as to that or as to the amount.  

15.	What is contended is that the award of £5,000 by way of costs anyway should not have been made because the Claimant and her representative did not behave unreasonably and it was not unreasonable for her to refuse the offer.  The Tribunal noted that not only did the offer include money but it also a clause saying that the Respondent acknowledged that the Claimant saw someone whom she believed to be Mrs Evans.  This was unacceptable to her.  

Conclusions
16.	Mr Hooper indicated that what he sought throughout was some independent corroboration of Mrs Evans’ statement.  For that reason, he wrote to Lester Aldridge hoping that a senior partner there would confirm that Mrs Evans was, indeed, nowhere near Sherborne on the day, as to which he tells me his wife would have walked away from this case.  I do not believe that because the Claimant had, as the Tribunal found, an opportunity to walk away from this case with some dignity, acknowledging that she may have been mistaken and with £5,000.  But she would not accept that proposition and, I assume did not accept that proposition at the Employment Tribunal.  Her case was Mrs Evans was at Sherborne School and, when she says that she was not, Mrs Evans lied.

17.	Mr Hooper has presented a very scholarly skeleton argument supporting his detailed Notice of Appeal, which is replete with authorities carefully researched.  He is a specialist in IT and has a theological background, and so quotes in Latin the words of St Augustine: hear the other side.  He is right.  He contends that he was stopped from asking questions.  I do not accept this.  The central issue was who was telling the truth about 19 March.  The Tribunal, on the best evidence there was, that is listening to both of the people said to be involved, found in favour of Mrs Evans.  Such documentary material as there was showed the absence of entries in her diary and of anybody at the school showing Mrs Evans attending at the school. In those circumstances there was nowhere else for the Claimant to turn.  The Tribunal bore in mind that it had already found that the Claimant told lies to her employer.  So, it was not difficult for it in those circumstances to take that into account and all other matters when it decided against her.

18.	I see no error of law in the material as it was presented.  However, Mr Hooper seeks to raise a new point of law on this appeal.  This has not had the attention of the President and HHJ Peter Clark in their work on this case and comes before the EAT for the first time.  I reminded Mr Hooper that our jurisdiction to deal with new questions of law is very limited, and we would generally not make an exception where more material would need to be adduced from the Employment Tribunal: see CELTEC v Astley [2006] IRLR 635, the House of Lords there approving my review of the principles.

19.	In short, the application relates to a subsidiary allegation under section 2(1) of the Race Relations Act indicating that a ground might exist for finding victimisation if the Respondent suspected the Claimant had made an allegation of race discrimination against her previous employer.  I hold that that provision is disjunctive, separated by “or”, different from the issue defined at the outset that the Respondent knew of the race discrimination claim, by reason of Mrs Evans. That separate head would require an investigation of the mind of the relevant witnesses of the Respondent.  I am not prepared to allow that examination to occur.  It could have been done at the Employment Tribunal and it could have been raised in the two Notices of Appeal that have been put before judges of this Court. I will refuse the application.

20.	I would like to thank Mr Hooper for his learned address to me today. The application is dismissed and effectively so is the appeal.