Fraser v University Of Leicester & Ors (Race Discrimination), Court of Appeal - United Kingdom Employment Appeal Tribunal, June 05, 2014,  UKEAT 0155_13_0506
|Resolution Date:||June 05, 2014|
|Issuing Organization:||United Kingdom Employment Appeal Tribunal|
|Actores:||Fraser v University Of Leicester & Ors (Race Discrimination)|
Appeal No. UKEAT/0155/13/DM
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
On 5 & 6 March 2014
Judgment handed down on 5 June 2014
HER HONOUR JUDGE EADY QC
PROFESSOR K C MOHANTY JP
MR S YEBOAH
PROFESSOR C D FRASER APPELLANT
UNIVERSITY OF LEICESTER & OTHERS RESPONDENTS
Transcript of Proceedings
Application of the burden of proof: Shamoon v Chief Constable of the Royal Ulster Constabulary  ICR 337; Igen v Wong  ICR 935; Laing v Manchester City Council  ICR 1519; Madarassy v Nomura International plc  ICR 867 followed.
Multiple allegations of discrimination requiring the Tribunal to determine each complaint whilst still taking a holistic - not a fragmented - approach, so as to enable it to see the bigger picture: Qureshi v Victoria University of Manchester  ICR 863; Fearon v Chief Constable of Derbyshire  UKEAT/0445/02; Rihal v London Borough of Ealing  IRLR 642; and X v Y  UKEAT/0322/12 applied.
In this case the Tribunal had correctly applied the burden of proof and demonstrated that it had considered the detail of the individual complaints; those complaints as part of more general themes and also the bigger picture more generally: it had kept sight of both the wood and the trees and no error of law was disclosed.
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HER HONOUR JUDGE EADY QC
1. This is a unanimous judgment of the Court. We refer to the parties as the Claimant and the First, Second or Third Respondents, as they were below.
2. This is the Claimant's appeal against a judgment of the Leicester Employment Tribunal, under the Chairmanship of Employment Judge Maidment, sitting with members over a period of 19 days with a further 5 days for deliberations. The reserved judgment and reasons were sent to the parties on 30 July 2012. Representation below was as before us.
3. The Tribunal was charged with the determination of two separate claims of race discrimination (involving claims of direct discrimination, harassment and discrimination by way of victimisation). In determining these complaints, it was presented with 12 lever arch files of documentation (something over 4,000 pages) together with a bundle of witness statements. It heard oral evidence from the Claimant (who read into the record his 138 page witness statement and was cross-examined for around 3 days). It then heard from the following witnesses for the Respondents: Professor Mark Thompson (the Third Respondent and Senior Pro-Vice Chancellor of the First), Professor Burgess (the 2nd Respondent and Vice Chancellor of the First); Mr Nigel Grundy, counsel, who had chaired the Grievance appeal committee; Ms Jane McNeil QC, who had chaired the Grievance committee; Ms Mhairi Fitzpatrick, the First Respondent's Human Resources Business Partner; Mr Roger Bettles, Chair of Council of the First Respondent and Mr Alun Reynolds, Human Resources Director of the First Respondent. The Tribunal heard full submissions from both parties and reserved its decision, ultimately concluding that the Claimant's complaints were not made out and fell to be dismissed. That conclusion was set out in the Tribunal's reserved judgment, provided with written Reasons comprising some 112 pages, 630 paragraphs.
4. Before us, there have been three bundles of documentation (including the core documentation required by the EAT) plus a bundle of authorities. We have also been provided with ``skeleton'' arguments from both sides of 34 and 32 pages respectively.
5. After hearing from the parties over the course of the two days listed for this case, we reserved our judgment and spent further time deliberating over the arguments presented to us.
6. Whatever else might be said about this matter, a great deal of time and care has gone into the hearings at each stage.
The background facts
7. The Claimant is an employee of the First Respondent having been appointed as a Professor of Economics in September 1995. He is black, Afro-Caribbean, of Jamaican birth but of British nationality and has been a UK resident since 1960. He has been employed in higher education since 1978 and works in the field of theoretical economics.
8. The First Respondent is a research led University, in which Economics was one of around 40 Departments. Since 1999, the Second Respondent has been the First Respondent's Vice-Chancellor. The Third Respondent is the Senior Pro Vice-Chancellor and Chair of the Budget and Resources Committee.
9. From September 2005 until August 2008, the Claimant was Head of the Department of Economics. Prior to that, a Professor Demetraides had been Head of Department. The Claimant felt Professor Demetraides was divisive and the Tribunal found that the Department had not been particularly happy under his leadership. More generally, the fortunes of the Department fluctuated and there were divisions amongst those within the Department - particularly at a senior level - as to its future direction. As the Employment Tribunal found:
``51. The Claimant found himself clashing with Prof Demetriades over the Claimant's desire to broaden the research base by hiring more theorists (like himself), which was seen by some as an attack on the applied economists.
52. The then Dean of Faculty, Professor Jackson, had suggested the setting up of a Senior Management Group (``SMG'') ... Such group was formed and included Prof Lee, Prof De Fraja and Prof Mezzetti. The Claimant and the 2 other Professors in the Department at the time fell outside this group.
53. Prof De Fraja had only joined the Respondent and its Department of Economics in 2004 but was clearly, early on, perceived by some as having ``superstar'' status as indeed was Prof Demetriades - the Claimant uses such term in describing them in email correspondence although with an element of sarcasm. ... Prof De Fraja very much fell into the Demetriades camp and on the opposite side to the Claimant in the ``applied'' versus ``theoretical'' debate.
57. There was a recovery [of the Department's fortunes] under the Claimant's headship. ...
58. There were nevertheless tensions within the Department, which were largely the result of a continuance of a clash between the Claimant's philosophy for the priorities in expanding the Department and that of Prof De Fraja and Prof Demetriades, particularly whether there should be further senior appointments in the area of Finance.
62. Prof Thompson was well aware throughout the Claimant's headship that tensions and arguments existed between senior colleagues and that effectively Prof De Fraja and Prof Demetriades were vehemently opposed to the Claimant's vision for the future of the Economics Department.
63. The impression the Tribunal is left with is that there was a degree of petulance and obstructiveness in the behaviour of Prof De Fraja and Prof Demetriades towards the Claimant ... they did little to hide their feelings and the conflict was very much one voiced publicly within the academic cadre in the Department of Economics during the Claimant's headship. ...
64. ... Prof Thompson formed a view that this SMG had ceased to function effectively. There was undoubtedly, as we have found, a legitimate basis for such a conclusion.''
10. Given the criticisms subsequently made of Professor Thompson, these findings are significant. It further concluded that the tensions between the senior academic staff in the Department were unrelated to race, see (e.g.):
``66. ... The Claimant confirmed that he did not suggest that the treatment of him by Prof Demetriades was on the grounds of his race or colour. Indeed, he also agreed that the bullying and harassment of him which he attributed to Prof De Fraja was not on the grounds of his race.
67. The Tribunal has not heard from Prof de Fraja, but can not avoid the impression that he might accurately be described as an overbearing, unpleasant and unempathetic individual who treats anyone who is not one of his disciples or acolytes equally badly. There are examples of other academics within the department who have accused Prof De Fraja of bullying behaviour Their ethnicity and nationality vary. Indeed, looking at the email circulation list of the Department there appears to be only a small minority of individuals who by their name might be assumed to be of British nationality and ethnicity, the Claimant himself being one of them.''
11. The matters with which the Employment Tribunal were concerned started during the Claimant's Headship, with an email he sent to the Second Respondent on 10 March 2008. This was headed ``Finance in the Department of Economics'' and the earlier sections of the email referred to Professor De Fraja's views regarding a future appointment in Finance. In the third paragraph of the message, however, the Claimant complained of being subjected to:
``...an unprecedented and persistent attack by mass circulation of emails by my predecessor and successor that, had I been of less robust temperament would have hospitalised me - and might still do.''
12. The Second Respondent responded by email of 18 March 2008, thanking the Claimant for his email ``concerning the development of Finance in the Department of Economics''; stating that he had asked the Third Respondent to call a meeting involving both the Claimant and Professor De Fraja to move matters forward ``in a positive way''. There were indeed meetings of senior academics in the Department but no discussion of the treatment of the Claimant. The Second Respondent did not engage with the Claimant's suggestion that he had personally suffered an attack that might have impacted upon his health.
13. In August 2008, Professor De Fraja became Head of Department and the Claimant began (as would be usual) a period of absence on study leave.
14. During the Claimant's study leave, a lecturer in the Department, Dr...
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