Bham v 2Gether NHS Foundation Trust (Race Discrimination : Direct), Court of Appeal - United Kingdom Employment Appeal Tribunal, August 07, 2015,  UKEAT 0417_14_0708
|Resolution Date:||August 07, 2015|
|Issuing Organization:||United Kingdom Employment Appeal Tribunal|
|Actores:||Bham v 2Gether NHS Foundation Trust (Race Discrimination : Direct)|
Appeal Nos. UKEAT/0417/14/DXA
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8AE
At the Tribunal
On 14 & 15 July 2015
Judgment handed down on 7 August 2015
THE HONOURABLE MRS JUSTICE ELISABETH LAING DBE
MR A BHAM APPELLANT
2GETHER NHS FOUNDATION TRUST RESPONDENT
Transcript of Proceedings
RACE DISCRIMINATION - Direct
RACE DISCRIMINATION - Inferring discrimination
VICTIMISATION DISCRIMINATION - Other forms of victimisation
The Appellant appealed against (1) a Substantive Decision of the Employment Tribunal (``ET'') dismissing his claims for discrimination and victimisation on the grounds of race, and harassment on the grounds of religion and belief, (2) a Decision refusing to reconsider the Substantive Decision, and (3) a Decision ordering him to pay costs.
The appeals against the Substantive Decision and the Reconsideration Decision were dismissed. The Employment Appeal Tribunal held that the ET had correctly directed themselves in law on the substantive claims. It also rejected an argument that the ET had failed to make reasonable adjustments during the hearing for the Appellant.
It further held that, whether or not the ET had erred in refusing to reconsider its Substantive Decision, the appeal against that decision having been dismissed, it was not in the interests of justice for the ET to reconsider that decision.
The appeal against the Costs Decision was allowed, on the grounds that the ET had given inadequate reasons for ordering the Appellant to pay costs. The costs application was remitted to the ET for reconsideration.
THE HONOURABLE MRS JUSTICE ELISABETH LAING DBE
These are conjoined appeals against three Decisions of the Employment Tribunal. The Employment Tribunal consisted of Employment Judge Livesey, Mr H J Launder and Mrs E Burlow.
The first Decision followed a hearing on 27 February, 3 to 6, and 10 to 14 March 2014. In its Judgment and Reasons sent to the parties and entered on the register on 14 March 2014, the Employment Tribunal (``the ET'') dismissed the Appellant's claims of discrimination on the ground of the protected characteristic of race, and of harassment on the grounds of religion or belief. The second Decision was a decision to refuse to reconsider the Decision of 14 March. The third Decision followed a hearing on 10 June 2014. The Reasons for the third Decision were sent to the parties and entered on the register on 15 July 2014. The ET by that Decision ordered the Appellant to pay a total of £1,366 in costs to the Respondent. That award was made on the basis of the Appellant's conduct in the run up to the hearing. I will refer to the first Decision as the Substantive Decision, to the second Decision as the Reconsideration Decision and to the third Decision as the Costs Decision.
The Appeals in this Case
Ms Mallick represented the Appellant at the Rule 3(1) Hearing in this Tribunal under the ELAAS scheme. I record my gratitude to her for that, and for her representing him at this hearing. She did this pro bono, as an extension of her ELAAS work. I am sure that by representing him she has ensured for him the best possible chance of success, and that she has also helped me by refining the issues substantially. She pursued his interests with unflagging determination, and remained steadfast in the face of my questions. I also record my gratitude to Ms Azib, who has represented the Respondent, for her helpful and succinct submissions.
Ms Mallick relied on five broad grounds of appeal against the Decision of the ET on the substantive hearing. They were that the ET erred in law:
in its approach to the complaint of victimisation;
by failing to stand back and to look at the complaints cumulatively;
in failing to address the complaint of direct discrimination on grounds of religion or belief which had been wrongly characterised by the Respondent's counsel as a complaint of harassment;
in its approach to the 10 April 2010 appeal (making a perverse decision and giving inadequate reasons for it);
in failing to make reasonable adjustments for the Appellant by giving him breaks during the hearing which he needed on account of his disability, and because he was a litigant in person.
She did not pursue ground 4 at the hearing.
Her grounds of appeal against the ET's decision on the reconsideration application are that the ET should not have refused to entertain that application on the grounds that the Appellant had not copied it to the Respondent. She acknowledges that the Appellant had, in that respect, failed to comply with Rule 71, but submits that the ET should not have treated that failure as one which invalidated his application. Her ground of appeal against the ET's decision on costs was that there was no sufficient basis for making an award of costs. She submitted that the Appellant was on benefits, and that the ET failed to consider the impact of the costs order on him. The ET did not explain why they considered that he had the means to pay.
The Substantive Decision
The ET's introduction to its Reasons
The ET recorded in its Reasons that the procedural background was complicated. The Appellant had already made one claim against the Respondent (issued in April 2010) in which he had claimed direct discrimination, victimisation, and harassment on the grounds of the protected characteristics of both race and sex.
Both claims focused on a meeting which had taken place on 4 November 2009, on the investigation which had followed that, and on grievances which had been raised by the Appellant in December 2009 and January and February 2010. Those claims had been heard in March 2011 and had been dismissed by an ET. The Appellant appealed then to this Tribunal. That appeal was dismissed in September 2013. At the time of the ET's Substantive Decision that matter was pending in the Court of Appeal.
The claim in this case was issued on 29 September 2011. There were various attempts to clarify the issues at case management hearings and the Appellant eventually produced a 15-page schedule of allegations. There were further hearings.
This claim was originally set down for hearing in October of 2012. There were further procedural issues, including an further appeal by the Appellant to this Tribunal. In the meantime he had issued three further claims on the 24 July, 23 August and 12 December 2012. Those three further claims were initially listed to be heard with this case. This case was set down to be heard on its own in February 2013 as the Appellant had by then lodged a further appeal against various case management decisions. That appeal was still outstanding at the date of the ET hearing in this case.
As the ET recorded, the issues in this case fell into what it described as chronological window between those that were dealt with as part of the first case and those which were covered by the three claims issued in 2012. The 2012 claim related to the Appellant's dismissal and other issues occurring both before and after that dismissal.
The ET recorded at paragraph 4.2 of its Reasons that the Appellant described himself as an Asian Muslim. His complaints of the direct discrimination contrary to section 13 of the Equality Act 2010 (``the 2010 Act'') and of victimisation contrary to section 25 of the 2010 Act were as follows:
``(1) Sending the Claimant home on the 11 January 2010;
(2) Dismissing his grievance on 13 April 2010 and denying him the opportunity to appeal;
(3) Proceeding with disciplinary hearing on 30 September 2010 in his absence [In fact the date as the ET recorded was incorrect. Both parties had agreed that the hearing took place on 21 October and 4 November];
(4) On 20 June 2011 failing to allow him to return to work contrary to the Respondent's Grievance Policy which applied at the time when the Appellant raised his grievance on 11 January 2010 and which referred to a preservation of the status quo;
(5) On 23 June 2011 unilaterally withdrawing the Appellant's grievance;
(6) On 30 June 2011 commissioning an investigation not predicated under any Trust policy or procedure;
(7) Failing to follow the Trust's own policies and procedures;
(8) Failing to respond to the Appellant's request to pursue his grievance.''
The ET recorded that, in the relation to the first issue, it was necessary for it to decide whether that issue had effectively been determined in the proceedings which the Appellant had issued in 2010. If it had been, then it would not be appropriate for the ET to re-decide it. The ET recorded in relation to the seventh allegation that the Appellant had been asked to provide four examples of the way in which the Respondent had failed to follow its own policies and that the Appellant had done so under cover of an email dated 11 May 2012; in fact, more than four examples had been given. The ET recorded, in the relation to the eighth allegation, that two examples of the instances in which the Appellant had said that his grievance was not pursued by the Respondent had also been supplied under cover of the email dated 11 May 2012. The ET said that, in relation to the claim of victimisation, the protected act was said to have been the Appellant's grievance of 11 January 2010 and the first set of tribunal proceedings which had began on April 2010. The Respondent had conceded that those matters qualified as protected acts under the section 27 of the 2010 Act. The ET then mentioned the discrete claim for harassment on the grounds of the protected characteristic of the Appellant's religion or belief. This, the ET said, concerned a remark made by Mrs Andrews in an interview. The Claimant...
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