Appeal No. UKEAT/0221/15/DA
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
On 22 April 2016
Judgment handed down on 8 June 2016
HER HONOUR JUDGE EADY QC
MR P T JAMU APPELLANT
ASDA STORES LTD & OTHERS RESPONDENTS
Transcript of Proceedings
|For the Appellant||MR MATTHEW JACKSON
Free Representation Unit
|For the Respondent||MR NATHANIEL CAIDEN
1 Lanyon Place
DISABILITY DISCRIMINATION – Reasonable adjustments
VICTIMISATION DISCRIMINATION – Other forms of discrimination
PRACTICE AND PROCEDURE – Perversity
Victimisation – section 27 Equality Act 2010 (“EqA”); Disability discrimination by reason of a failure to comply with a duty to make reasonable adjustments – section 21 EqA 2010; Harassment – section 26 EqA 2010; Perversity challenge
The Claimant, acting in person before the ET, had made complaints of victimisation, disability discrimination and harassment. The Particulars of the claims, as pleaded, were not easy to discern and there had been earlier attempts to clarify the Claimant’s case. Although not entirely clear, it appeared that an ET at an earlier Preliminary Hearing had accepted the Claimant’s Further Particulars as amendments to his claim.
At the subsequent Full Merits Hearing, the ET had characterised the Claimant’s victimisation complaint as one of “associative victimisation”. Taking the view that such a cause of action was not permitted under the Equality Act 2010, the ET dismissed that claim. In any event, the ET found that the relevant Respondents had not known of the protected act relied on by the Claimant at the time of the meeting at which he said he had been subjected to detriment. Moreover, the Claimant had not been treated in the way he alleged at that meeting. The ET also dismissed the Claimant’s complaints of disability discrimination by means of a failure to make reasonable adjustments. It considered this claim limited to the failure to postpone a return to work meeting on 18 March 2013, in respect of which it did not consider that the Claimant had demonstrated any provision, criteria or practice and as regards which it found he had suffered no relevant disadvantage. As for the harassment complaint, this related to an alleged breach of confidence by the Third Respondent at the meeting of 18 March; the ET found there was no evidence that the Third Respondent had breached the Claimant’s confidence as alleged and further dismissed this claim.
On the Claimant’s appeal.
Held: allowing the appeal in respect of one aspect of ground 2 but otherwise dismissing the appeal.
The ET erred in its characterisation of the Claimant’s victimisation claim. It had been a claim of direct, not associative, victimisation. That said, the ET had gone on to consider the detriments alleged in this respect and had made permissible findings on detriments and on knowledge/causal connection that provided a complete answer to the claim in any event. The Claimant had not established that any of the findings in question were perverse.
The ET had also erred in limiting the Claimant’s reasonable adjustments complaint to the failure to postpone the meeting of 18 March 2013; his pleaded case had included a complaint about being assigned heavy duties upon his return to work after periods of ill health. Whilst it would have been better if the precise nature of the amended case in this regard had been recorded at an earlier ET hearing, it could not be concluded that the Claimant had withdrawn this complaint. That said, the ET’s unchallenged finding on the Respondent’s knowledge of the Claimant’s disability answered the complaint in respect of the earlier date. That left the complaint about being assigned heavy duties on 14 June 2013 and the appeal would be allowed in respect of the ET’s failure to deal with this matter.
As for the ET’s findings relevant to the meeting of 18 March, it had been wrong to find that there was no provision, criteria or practice but had reached a permissible conclusion on the question of disadvantage that answered the case in any event.
On the harassment claim, the Claimant contended the ET erred in not finding the First Respondent vicariously liable for another employee (Mr Spragg). The claim before the ET was, however, founded upon an allegation of breach of confidence by the Third Respondent. That was rejected. There was no separate complaint regarding Mr Spragg’s conduct.
HER HONOUR JUDGE EADY QC
- I refer to the parties as the Claimant and the Respondents, as below. This is the hearing of the Claimant’s appeal against the Judgment of the Leicester Employment Tribunal (Employment Judge Ahmed sitting with members, Ms Endersby and Mrs Woodward, on 2-6 March 2015; “the Ahmed ET”), sent out on 17 March 2015. The Claimant then appeared in person but now has the benefit of pro bono representation by Mr Jackson of counsel, appearing through the Free Representation Unit. The Respondents were previously represented by Mr Breen of counsel, but today appear by Mr Caiden, also of counsel.
- The Ahmed ET dismissed the Claimant’s claims of victimisation and harassment (based on the protected characteristic of race) and his various claims of disability discrimination. He now appeals and, after an Appellant-only Preliminary Hearing, I permitted the appeal to proceed to Full Hearing on amended grounds. Subsequently, I allowed an application for the Employment Judge’s notes of parts of the evidence, receipt of which led to the withdrawal of ground 7 of the Amended Notice of Appeal.
The Background Facts
- The Claimant has been, and remains, employed by the First Respondent as a warehouse operative (“warehouse colleague”) since 2 December 2002. The First Respondent is a supermarket chain, with large distribution centre at Magna Park, Lutterworth, Leicestershire (“the ADC”); the Second Respondent was the “People Manager” in the Human Resources department; the Third Respondent, the Operations Manager in logistic services at ADC; and the Fourth Respondent was the Shift Manager.
- The Claimant advanced a number of claims in the ET proceedings. The issues relevant to this appeal relate to the following complaints: (1) victimisation – the protected act being the Claimant’s representation of a colleague (Mr Nyamhondoro) in his internal complaint of race discrimination, specifically at a hearing on 27 May 2012; (2) disability discrimination; and (3) harassment.
- It was part of the relevant background that the Claimant and Mr Nyamhondoro had (along with some other employees) refused to agree to contract changes otherwise agreed between the First Respondent and the recognised trade union, the GMB. The First Respondent (in particular, acting through the Second Respondent) was seeking the individual agreement of the Claimant, Mr Nyamhondoro, and other “refuseniks”.
- Further, at the time of the events with which the ET was concerned, the Claimant had some periods off work due to ill heath. As determined at an earlier ET hearing, the Claimant was a disabled person for the purposes of the Equality Act 2010 (“the EqA”), as a result of suffering stress and depression. He complained about a return to work meeting on 7 June 2012, when he was accompanied by Mr Nyamhondoro and when he said he was bullied by the Second and Fourth Respondents, who were both in attendance. Certainly, at that meeting, there was some discussion of the issue over the new contract arrangements, which the Respondents subsequently accepted might have been inappropriate. The Ahmed ET, however, rejected the Claimant’s characterisation of the meeting, considering it was Mr Nyamhondoro who first raised the issue of the contractual negotiations; the Second and Fourth Respondents had responded but not inappropriately. In any event, neither the Second nor Fourth Respondents were then aware that the Claimant had earlier represented Mr Nyamhondoro in connection with complaints of race discrimination; their conduct could not have constituted unlawful victimisation.
- The Claimant’s refusal to agree to the new arrangements was followed up by the Third Respondent, who had several meetings (or attempted to do so) with him between October 2012 and March 2013, during which time the Claimant had various health related absences from work. Meanwhile, in December 2012, the Claimant lodged a grievance, complaining the various attempts to discuss the new contractual arrangements constituted harassment. At around the same time, the Respondents received Occupational Health (“OH”) advice that a meeting should be arranged with the Claimant, as soon as possible, to address work related issues.
- On 16 February 2013, the Claimant had returned to work but complained he was placed on heavy duties. After that return to work, the hearing of the Claimant’s grievance took place before a Warehouse Shift Manager (Mr Harvey) but, after investigation, was dismissed, a decision communicated on 26 March 2013. The Claimant’s appeal was later rejected by the Fourth Respondent after further hearings and investigations.
- Returning to the chronology, on 18 March 2013, another meeting with the Claimant had been arranged to discuss the new contractual arrangements. The Respondents had obtained an updated OH report earlier that month, which they considered advised that the Claimant should be fit enough to attend such a meeting. On the morning of 18 March, however, the Claimant telephoned to say he was not well enough to attend. The meeting went ahead in his absence, with the Third Respondent appointing a former GMB officer (Mr Spragg) as the Claimant’s representative. The Ahmed ET considered it had been “entirely inappropriate” to appoint Mr Spragg to represent the Claimant in these circumstances; not least as, as a former GMB officer, Mr Spragg’s views on the proposed contractual changes were likely to be diametrically opposed to those of the Claimant. The conduct of the meeting of 18 March was a further subject of complaint by the Claimant in his ET proceedings, as was the subsequent apparent divulging of confidential information relating to his health by Mr Spragg to other colleagues, which the Claimant complained had led to him being called a “madman” in the workplace.
- Whilst appealing the rejection of his grievance, on 16 May 2013, the Claimant accepted an offer of employment on the new contractual terms, which came into effect on 21 May.
The ET Proceedings, Decision and Reasoning
- On 26 July 2013, the Claimant presented his complaint to the ET. There was an initial Preliminary Hearing (before EJ Caborn) on 13 December 2013, at which directions were given for the Claimant to provide Particulars of the claims he was intending to pursue. He then provided Further Particulars – not necessarily in the form the ET had anticipated – by a series of letters of 9 January 2014. At a further Preliminary Hearing (before EJ Britton) on 29 August 2014, it was held that the Claimant was disabled for the purposes of the EqA and recorded that he was pursuing claims of disability discrimination including a failure to make reasonable adjustments, as well as claims of victimisation and harassment, related to the protected characteristic of race. The Britton ET recorded that the Claimant’s victimisation and race harassment claims could be summarised as follows:
“21. … starting on the 7 June 2012 he was subjected to intensive pressure and thus harassing behaviour, in particular on the terms and conditions issue and unlike other refusenik employees, by management and particularly first [the Second Respondent], then [the Third Respondent] and finally [the Fourth Respondent]. He says that this was because he had represented [Mr Nyamhondoro] as to his race discrimination issue and done so very recently prior thereto.”
- As for the disability discrimination claim, the Britton ET understood it was claimed that this started with the treatment of the Claimant by the Third Respondent at the meeting on 18 March 2013; specifically, the pressure put on the Claimant to attend the meeting when he was not fit to do so and the subsequent harassment he suffered in the workplace as a result of the dissemination of confidential information relating to his health.
- At the Full Merits Hearing, however, the Ahmed ET recorded that the Claimant’s complaints of both race and disability discrimination:
“2. … are partly that of associative discrimination and partly as a result of treatment of him by the various respondents.”
- The Ahmed ET considered that, as a matter of law, the Claimant was unable to bring a complaint of associative victimisation. It found it hard to identify the other complaints but considered these too involved associative discrimination, that was:
“34.1. … for representing Mr Nyamhondoro at an internal hearing on 27 May 2012. It is the claimant’s case that he was subjected to [unlawful harassment] because he had represented Mr Nyamhondoro.”
- The same was true of his direct disability discrimination claim (ET paragraph 34.5).
- The Ahmed ET also recorded that the harassment complaint (as the Claimant confirmed at the hearing) related to his treatment at the meeting of 18 March 2013 (ET paragraph 34.2). That meeting was also the subject of the Claimant’s complaints of disability discrimination by way of a failure to make reasonable adjustments (paragraph 34.3) and of (disability) harassment and victimisation (34.4).
- As already recorded, the Ahmed ET rejected the Claimant’s version of events on 7 June 2012. More generally, it found no causal link between any relevant protected characteristic or the Claimant’s representation of Mr Nyamhondoro and the conduct of which he complained (ET paragraphs 35 to 41). It further rejected the complaints relating to the 18 March hearing, not least as there was no substantial disadvantage suffered by the Claimant (his suggested reasons for not attending appeared disingenuous), and concluded the First Respondent was not liable for Mr Spragg (ET paragraphs 42 to 45, 48 and 54).
The Appeal and Submissions
- Grounds 1, 2, 6 and 8 relate to the Ahmed ET’s categorisation of the Claimant’s case and the application of the correct legal test; grounds 3, 4 and 5 are perversity challenges.
The Claimant’s Case
(1) The categorisation of the Claimant’s case and the correct legal test
- Ground 1 concerned the victimisation complaint and comprised two distinct issues: (i) whether the case was in fact one of direct victimisation (was the Claimant subjected to detriment because he did a protected act?); if not, (ii) was it open to the ET to decline to consider an “associative” victimisation claim? The list of issues anticipated a case of direct victimisation, as had the amended claim (the Further Particulars treated as amendments, see paragraph 1 of the Britton ET Reasons). It was not an allegation of associative victimisation because it did not involve the Claimant being subjected to detriment as a connected third party but was simply an allegation that he did a protected act – representing a colleague – and was subjected to a detriment due to that. If that was wrong, and the ET correctly characterised it as an associative victimisation case, then it erred in holding this was not a valid cause of action (as HHJ Richardson had apparently allowed in Thompson v London Central Bus Company Ltd  IRLR 9). Although domestic law did not provide for associative victimisation, that must be allowed under EU law, which required member states to introduce measures to protect employees against adverse treatment as a reaction to an internal complaint or legal proceedings aimed at enforcing compliance with the principle of equal treatment. That this would extend to associative victimisation was implicitly allowed in Attridge Law v Coleman (No. 2)  IRLR 10 (see paragraph 7 of that Judgment).
- Ground 2 related to the characterisation of the reasonable adjustments claim. The Ahmed ET ruled this related only to the meeting of 18 March 2013 but Claimant had provided Particulars that made clear his case was put more broadly and included incidents on 16 February and 14 June 2013, when he complained he was assigned heavy duties on his return to work – this being a provision, criterion or practice (“PCP”). These, together with the matters relied on in respect of the meeting of 18 March 2013, supported his reasonable adjustments claim. Moreover, the Respondent had provided an amended response, specifically engaging with these complaints; denying he was subjected to heavy duties.
- Ground 8 also related to the reasonable adjustments claim. Although not “pleaded” in professional language, the Claimant had done sufficient to identify the imposition of a PCP, namely the requirement to attend a meeting. As for the conclusion that he had not been placed at a disadvantage, that was not permissible on the medical evidence before the ET.
- Turning to ground 6 and the issue of vicarious liability, this related to the meeting on 18 March 2013 (when the Respondent assigned Mr Spragg to represent the Claimant) and to the complaint that Mr Spragg then breached confidentiality, leading to shop floor comment that the Claimant was mad. The Ahmed ET found Mr Spragg was not acting on behalf of the First Respondent when divulging confidential information, but that was missing the point of the complaint: the Respondents had divulged confidential information to Mr Spragg and normal vicarious principles then applied to his subsequent divulging of that information to others (see section 109 EqA and the approach as laid down in AM v WC and SPV  IRLR 410 EAT, Jones v Tower Boot Co Ltd  2 All ER 406 and Mohamud v WM Morrison Supermarkets plc  UKSC 11). It was sufficient that the Claimant had pleaded the First Respondent was liable; the Ahmed ET erred in law in not approaching the matter in this way. Alternatively, it was hard to understand the basis for the conclusion that the First Respondent was not vicariously liable for Mr Spragg’s actions.
- Ground 3 related to the finding (ET paragraph 37) that the Second Respondent had been unaware that the Claimant had earlier represented Mr Nyamhondoro in his internal race discrimination complaint. This was perverse because the Second Respondent confirmed she was aware of that fact in internal meeting notes of 6 June 2013. The point was not canvassed in greater detail before the ET because it had not been in issue (the Second Respondent’s statement had not denied this knowledge). That fed into ground 4 and the challenge to the rejection of any causal connection (paragraph 39); that depended on the finding that the Second Respondent did not have the requisite knowledge and was thus rendered unsafe.
- Ground 5 related to the finding relevant to the discussion of contractual terms on 7 June 2013. This was perverse given the Second Respondent’s evidence (see paragraphs 8 to 11 of her witness statement) that she had, intentionally, raised the issue of the contractual arrangements (not suggesting she was only responding to Mr Nyamhondoro). Whilst the Fourth Respondent had said that the Second Respondent had not been the first person to raise the issue, he was the only one present who gave that evidence and it was perverse of the Ahmed ET to conclude as it did. This was a point on which there could only be one conclusion and the EAT should so hold (Burrell v Micheldever Tyre Services Ltd  IRLR 630 CA per Maurice Kay LJ at paragraph 24). This error could not be ignored: perverse findings on the facts impacted upon the assessment of detriment and causation.
The Respondents’ Case
(1) The categorisation of the Claimant’s case and the correct legal test
- Addressing ground 1: the victimisation claim and the question whether there could be a claim of associative victimisation, it was clear there could not. First, the natural reading of section 27(1) EqA did not allow for associative victimisation (and note, section 86 EqA did allow for this form of victimisation in the education context; if Parliament intended to thus extend protection, specific provision was made). Second, there were no domestic statutory aids to construction to support this basis of claim. Third, there was no binding case law that assisted (Thompson v London Bus Company expressly did not address the point; there had been no appeal against the earlier ET decision allowing that such a claim could be brought). Fourth, EU law did not dictate such a protection, permitting member states a margin of appreciation in this regard. The ET’s self direction on the law was correct. Furthermore, the Ahmed ET had been right to approach the victimisation claim in this way. The only protected act alleged was that the Claimant “represented” a colleague at an internal hearing concerning alleged race discrimination; never that he had himself done a protected act. That was properly characterised as an act of associative victimisation. Ultimately, it made no difference as the Ahmed ET found the Second and Fourth Respondents had no knowledge of the protected act at the meeting of 7 June 2012.
- Turning to the reasonable adjustments claim (ground 2) the Ahmed ET had been entitled to understand this was limited to the requirement to attend a meeting on 18 March 2013; no broader claim was obvious from the ET1 or the Claimant’s various Further Particulars. Had the ET failed to address this aspect of the case, the appropriate course would have been for the Claimant to apply for a reconsideration, which he had not. As for the substantive rejection of the reasonable adjustments claim (as the ET had understood it), that was a permissible conclusion on the evidence (see below).
- As for the harassment claim (ground 6), the Ahmed ET had correctly addressed the Claimant’s case as put in the ET1, which identified the Third Respondent as relevantly acting for the First (and Mr Spragg was not called as a witness because the Respondents had understood the case to depend upon an alleged breach of confidentiality by the Third Respondent). Doing so, the ET found no evidence that the Second Respondent breached confidentiality (ET paragraph 48). That being so, there could be no link between the Respondents and whatever Mr Spragg had done (the ET’s finding in respect of Mr Spragg was not strictly relevant; it could be seen as an alternative, going beyond the claim before it).
- Similarly, to the extent the Claimant was relying on detriment in respect of the meeting of 18 March, the Ahmed ET found his reasons for not attending appeared disingenuous and his evidence was neither satisfactory nor reliable (ET paragraph 45). That fed into ground 8 and the challenge to the rejection of the reasonable adjustments claim: the Ahmed ET found there was no PCP and no disadvantage; that had to be a complete answer to the claim.
- As for the challenge to the ET’s findings on the ground of perversity (grounds 3, 4 and 5), the appeal did not meet high test required: the ET reached permissible findings and conclusions on the evidence, including the oral evidence. On the question of knowledge, the ET’s conclusion as to the Second Respondent’s knowledge was limited to the position as at 7 June 2012; it would not be undermined if at some later point she had learned of the Claimant’s representation of Mr Nyamhondoro. That, during a grievance hearing about a year later, she said she had known of this did not mean no reasonable ET could conclude that, at the time of the meeting in June 2012, she lacked the relevant awareness. That fed into ground 4 and the challenge to the rejection of any causal connection (ET paragraph 39).
- Even if the Claimant had any argument as to the question of knowledge, the findings on factual matters going to the alleged detriment meant this complaint could go nowhere: the Ahmed ET had found the Second Respondent had not acted in the bullying way contended (ET paragraphs 35 to 36) and there were no threats in any discussion of legal advice in the context of the new contractual arrangements (paragraph 41). Specifically, on ground 5 and the finding, relevant to the discussion of contractual terms on 7 June 2012, that this had first been raised by Mr Nyamondoro: the Ahmed ET found Mr Nyamhondoro (an unreliable witness; ET paragraph 40) had always intended to raise the contractual matters; the Claimant himself could not recall when it was raised and the other attendee recalled the Claimant raising it first. It could not be said the ET reached an impermissible conclusion.
The Relevant Legal Principles
- Much of this appeal concerns the way in which the ET approached the Claimant’s case; whether it addressed all his complaints and whether it correctly categorised the claims identified. In considering this question, it is helpful to have in mind the observations of Langstaff P in Chandok v Tirkey  IRLR 195, at paragraphs 16 to 18:
“16. … The claim, as set out in the ET1, is not something just to set the ball rolling, as an initial document necessary to comply with time limits but which is otherwise free to be augmented by whatever the parties choose to add or subtract merely upon their say so. Instead, it serves not only a useful but a necessary function. It sets out the essential case. It is that to which a respondent is required to respond. A respondent is not required to answer a witness statement, nor a document, but the claims made – meaning, under the Rules of Procedure 2013 …, the claim as set out in the ET1.
- I readily accept that tribunals should provide straightforward, accessible and readily understandable fora in which disputes can be resolved speedily, effectively and with a minimum of complication. They were not at the outset designed to be populated by lawyers, and the fact that law now features so prominently before employment tribunals does not mean that those origins should be dismissed as of little value. Care must be taken to avoid such undue formalism as prevents a tribunal getting to grips with those issues which really divide the parties. However, all that said, the starting point is that the parties must set out the essence of their respective cases on paper in respectively the ET1 and the answer to it. If it were not so, then there would be no obvious principle by which reference to any further document (witness statement, or the like) could be restricted. Such restriction is needed to keep litigation within sensible bounds, and to ensure that a degree of informality does not become unbridled licence. The ET1 and ET3 have an important function in ensuring that a claim is brought, and responded to, within stringent time limits. If a ‘claim’ or a ‘case’ is to be understood as being far wider than that which is set out in the ET1 or ET3, it would be open to a litigant after the expiry of any relevant time limit to assert that the case now put had all along been made, because it was ‘their case’, and in order to argue that the time limit had no application to that case could point to other documents or statements, not contained within the claim form. Such an approach defeats the purpose of permitting or denying amendments; it allows issues to be based on shifting sands; it ultimately denies that which clear-headed justice most needs, which is focus. It is an enemy of identifying, and in the light of the identification resolving, the central issues in dispute.
- In summary, a system of justice involves more than allowing parties at any time to raise the case which best seems to suit the moment from their perspective. It requires each party to know in essence what the other is saying, so they can properly meet it; so that they can tell if a tribunal may have lost jurisdiction on time grounds; so that the costs incurred can be kept to those which are proportionate; so that the time needed for a case, and the expenditure which goes hand in hand with it, can be provided for both by the parties and by the tribunal itself, and enable care to be taken that any one case does not deprive others of their fair share of the resources of the system. It should provide for focus on the central issues. That is why there is a system of claim and response, and why an employment tribunal should take very great care not to be diverted into thinking that the essential case is to be found elsewhere than in the pleadings.”
- I, too, would not wish to promote an overly formal approach to ET proceedings but it seems to me these observations are entirely on point. A real unfairness can arise if the claims being made are not treated as those defined by the “pleadings”. Whilst ETs will properly wish to clarify the issues with the parties, the issues thus identified are still to be derived from the pleadings. Moreover, if the clarifications that take place during preliminary discussions are to be treated as amendments that must be clearly recorded; it should be apparent precisely what the ET has permitted by way of amendment.
- Turning to the claims made before the ET in the current proceedings, section 26 EqA defines “harassment”, relevantly, as follows:
“(1) A person (A) harasses another (B) if –
(a) A engages in unwanted conduct related to a relevant protected characteristic, and
(b) the conduct has the purpose or effect of –
(i) violating B’s dignity, or
(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.”
- Section 40 EqA renders harassment unlawful in the employment sphere as follows:
“(1) An employer (A) must not, in relation to employment by A, harass a person (B) –
(a) who is an employee of A’s;
(b) who has applied to A for employment.”
- Primary liability is thus placed on the employer, save that this must be read subject to the provisions on vicarious liability at sections 109 and 110 EqA, which state:
“109. Liability of employers and principals
(1) Anything done by a person (A) in the course of A’s employment must be treated as also done by the employer.
(2) Anything done by an agent for a principal, with the authority of the principal, must be treated as also done by the principal.
(3) It does not matter whether that thing is done with the employer’s or principal’s knowledge or approval.
(4) In proceedings against A’s employer (B) in respect of anything alleged to have been done by A in the course of A’s employment it is a defence for B to show that B took all reasonable steps to prevent A –
(a) from doing that thing, or
(b) from doing anything of that description.
- Liability of employees and agents
(1) A person (A) contravenes this section if –
(a) A is an employee or agent,
(b) A does something which, by virtue of section 109(1) or (2), is treated as having been done by A’s employer or principal (as the case may be), and
(c) the doing of that thing by A amounts to a contravention of this Act by the employer or principal (as the case may be).
(2) It does not matter whether, in any proceedings, the employer is found not to have contravened this Act by virtue of section 109(4).
- And see the description as to how these provisions (referred to in their earlier form in the heritage legislation) operate in practice by the EAT in AM v WC and SPV  IRLR 410:
“23. … liability arises where the employee aids and abets his employer’s vicarious liability. The structure of the Act is to place responsibility for unlawful discrimination in the workplace upon the employer … Since employers normally act through their servants and agents, s.41 [now section 109] defines the circumstances in which the activities of persons on behalf of the employer will create liability. Section 42 [now section 110] makes the employee personally liable, as well as the employer.”
- Section 27 EqA defines “victimisation”, relevantly, as follows:
“(1) A person (A) victimises another person (B) if A subjects B to a detriment because –
(a) B does a protected act, or
(b) A believes that B has done, or may do, a protected act.
(2) Each of the following is a protected act –
(a) bringing proceedings under this Act;
(b) giving evidence or information in connection with proceedings under this Act;
(c) doing any other thing for the purposes of or in connection with this Act;
(d) making an allegation (whether or not express) that A or another person has contravened this Act.
- On its face, the wording of section 27 assumes the protected act has been performed by the complainant (“B”). In Thompson v London Central Bus Company Ltd  IRLR 9 EAT, however, an ET had allowed that the claim might be pursued as one of associative victimisation. The case went to the EAT but on a different point; the appeal thus proceeded on the – untested – assumption that this was a permissible cause of action.
Discussion and Conclusions
- It is convenient to consider the points in issue under the headings of the relevant claims.
The Claimant’s Victimisation Complaint
- I start with the victimisation claim and with how this was put before the ET (ground 1). The Claimant represented himself in the ET proceedings and his initial statement of complaint, attached to his form ET1, did not always use the correct legal labels. At paragraph 2 of that statement, he complained:
“2. I have suffered harassment, race discrimination by association and disability discrimination at the hands of the management of ASDA ADC Lutterworth depot. My problems started after representing a colleague in a grievance hearing at ASDA ADC depot. I started representing the colleague on 27 May 2012 and I have represented him a number of times subsequently.”
- At the Preliminary Hearing on 13 December 2013, conducted by EJ Caborn (attended by the Claimant in person and by the Respondents’ solicitor by telephone), the view was taken that the claim needed clarification and, in an attempt to assist, the ET provided the Claimant with a template for “model orders” relating to the provision of additional information in discrimination and disability cases. By a series of letters, all dated 9 January 2014 but separated out in respect of each Respondent, the Claimant then provided Further Particulars which he considered complied with the ET’s directions. He continued to use the heading “harassment” but made complaints of being “harassed” after he had represented a colleague in a race discrimination grievance hearing.
- There subsequently followed a further Preliminary Hearing, this time before EJ Britton, on 29 August 2014. The ET referred to the Claimant’s claim having been “subject to some amendments … which have been responded to” (see paragraph 1 of that decision). It is not entirely clear what the ET was there referring to as “amendments” but it seems reasonable to assume (as Mr Jackson submits) that this was treating the Further Particulars in the letters of 9 January 2014 as such. As will be seen from the discussion below, it is to be regretted that there was not greater clarity in this regard.
- On the proposed victimisation complaint, the Britton ET identified that the protected act was the Claimant’s representation of Mr Nyamhondoro in his internal race discrimination complaint. It then clarified with the Claimant his case in terms of the detriments he alleged he suffered as a result of that protected act:
“21. … starting on the 7 June 2012 he was subjected to intensive pressure and thus harassing behaviour, in particular on the terms and conditions issue and unlike other refusenik employees, by management and particularly first [the Second Respondent], then [the Third] and finally [the Fourth]. …”
- The reference to “refuseniks” was to those who – like the Claimant and Mr Nyamhondoro – were refusing to sign up to the new collective agreement. The Claimant was saying he had been treated differently to others in his position in this regard and this was because he had represented Mr Nyamhondoro. Certainly, the list of issues drawn up by those acting for the Respondents included, under the heading “Race Discrimination”, the question:
“3. Was the Claimant subjected to a detriment because the Claimant carried out a protected act contrary to section 27 of the Equality Act 2010?”
- It is against that background that I turn to the record of the Full Merits Hearing before the Ahmed ET. It is in the conclusions section of the reasons given for that Judgment that the ET set out its understanding of the Claimant’s victimisation claim as follows:
“34.4. The allegations of disability harassment and victimisation are both of associative discrimination …”
- It seems to me that Mr Jackson is right: this was an unfortunate departure from what had been the agreed issue for the ET in terms of the Claimant’s victimisation case and was a mis-characterisation of that complaint. The Claimant was not saying he was victimised because he was associated with someone else who had performed a protected act. Had that been his complaint, an issue would certainly have arisen as to whether that was a permissible cause of action given the wording of section 27. It was a cause of action assumed in Thompson v London Central Bus Company Ltd  IRLR 9 but there is no decision on this question; it is properly to be described as a moot point. It was, however, not the point before the Ahmed ET. The list of issues (taking the complaint from the pleaded case) was premised on the basis that the Claimant had himself performed a protected act; the ET could proceed on the basis (as the Britton ET appears to have done) that it was accepted that representing Mr Nyamhondoro in complaints of race discrimination constituted the “doing of any other thing for the purposes of or in connection with this Act” for the purposes of section 27(2)(c) EqA. The issue for the Ahmed ET was whether the Claimant had thereby been subjected to detriment: had the Respondents subjected him to detriment because he represented Mr Nyamondoro in the latter’s race discrimination complaint? The Ahmed ET thus erred in law in dismissing an associative victimisation case that was never before it. That being so, I do not need to address the question whether it was wrong to dismiss a claim of associative victimisation: that is not before me because it was not before the ET.
- The question that does arise is whether any of this matters? Are there any detriments that the ET found (or should have found) which fell to be considered as potential acts of detriment for the purposes of the victimisation claim but which the ET failed to address because it had dismissed this as a complaint of associative victimisation?
- The ET found the Claimant suffered no detriment in respect of the meeting of 7 June 2012 and, further, that neither the Second nor Fourth Respondents knew of the protected act. Although the Claimant says these conclusions are perverse (as to which, see below), it is not suggested the Ahmed ET dealt with this alleged detriment differently because it misconstrued the claim as one of associative victimisation.
- As the Britton ET identified, the Claimant was, more generally, complaining that he was victimised by being placed under more pressure than others who were refusing to sign up to the new collective agreement. Whilst it is unclear precisely which events featured as part of the case by the time of the Full Merits Hearing, the Ahmed ET generally found:
“39. … There is no causal link established between the Claimant’s representation of Mr Nyamhondoro and his subsequent treatment. …”
- As for the complaints regarding the meeting of 18 March 2013, the ET again made findings in this respect that must (unless the Claimant can succeed on his other heads of challenge) answer any claim of (direct) victimisation. On the holding of the meeting, the ET found (in the context of the disability discrimination claim) that the reason for doing so on 18 March was because the Third Respondent was anxious to press on with the meeting after it had been postponed on several occasions earlier, resulting in an impasse (see paragraph 44). There was, furthermore, no detriment because the Claimant had not specifically sought an adjournment of the meeting but had stated he would not be attending and the Third Respondent could “do what he wanted”. More specifically, on the issue of victimisation (although erroneously labelling it associative victimisation), the ET expressly found that there was nothing to suggest the Third Respondent was aware of the Claimant having previously represented Mr Nyamhondoro (paragraph 45). Given those findings, it cannot be said (and Mr Jackson has not sought to do so) that the ET did not address the Claimant’s claim of victimisation.
- Whilst, therefore, I consider the ET was wrong in its characterisation of the claim as one of associative victimisation, I am satisfied this makes no difference: the victimisation case the ET went on to determine was substantively the case that the Claimant was making.
- That takes me to the question whether the ET’s conclusions relevant to the victimisation claim were perverse.
- As Mr Jackson accepts, a challenge by way of perversity faces a high test. He argues, however, that it was not open to the ET to find the Second Respondent did not know of the Claimant’s representation of Mr Nyamhondoro in his race discrimination complaint because she accepted that she had in the subsequent grievance hearing and the point was not explored more fully because it was not put in issue; specifically, the Second Respondent did not deny requisite knowledge in her witness statement.
- This submission suggests I can form a view on this point simply by looking at the written evidence in the appeal bundle. Even if that is a course properly open to me, I am not persuaded it inevitably leads to the conclusion the Claimant suggests.
- Looking at the material before me, it seems that, at best, the Second Respondent’s witness statement is neutral: she generally denies the Claimant’s allegations; she does not expressly concede knowledge of the protected act at the time of the meeting on 7 June 2012. As for the Second Respondent’s statement at the subsequent grievance hearing (about a year later), I do not conclude this was anything other than an admission that she knew of the protected act by June 2013 (not that she did on 7 June 2012). Mr Jackson says I need to read this in context, referring to the preceding discussion about the June 2012 meeting, but I equally note the discussion moved on to the Second Respondent’s involvement in Mr Nyamhondoro’s case more generally. It may be that this was not a point explored in detail at the hearing, but the ET certainly heard detailed evidence as to what took place on 12 June 2012 and I cannot assume that it did not hear sufficient for it to reach a conclusion as to what the Second Respondent knew at that time. Notwithstanding Mr Jackson’s persuasive advocacy, I do not consider he has established sufficient for a successful perversity challenge on the point raised by ground 3.
- Given the way the appeal has been argued, that inevitably means that I also reject the challenge (ground 4) to the ET’s rejection of any causal connection between the Claimant’s representation of Mr Nyamhondoro and his subsequent treatment.
- I turn then to the challenge (ground 5) to the finding that it was Mr Nyamhondoro who initially raised the issue of the new contractual arrangements rather than the Second Respondent. On this, the Claimant relies on passages in the Second Respondent’s witness statement where she volunteered she had decided to raise this issue at the meeting herself and suggested (by the language she used) that she had initiated the discussion.
- Again, however, this challenge faces the difficulty that the reference relied on is not unambiguous: volunteering she had determined to raise the issue and asked the Claimant about the new contractual arrangements, is not necessarily the same as saying she in fact initiated the discussion on this topic; these parts of the Second Respondent’s statement would be equally consistent with her joining in a discussion on the point after it had first been raised by Mr Nyamhondoro. Moreover, that way of seeing the evidence would be consistent with the recollection of the Fourth Respondent and was not contradicted by the Claimant (and the ET did not find Mr Nyamhondoro to be a reliable witness). The ET heard evidence on the detail of this meeting and I am not persuaded that it did other than reach a permissible conclusion as to who initiated this particular discussion.
- In any event, the point could go nowhere. Whilst I appreciate Mr Jackson’s objection that an ET’s findings of fact are the necessary foundation for its final conclusions on detriment and causation, the facts as found in the present case could only negate any suggestion of detriment. The ET specifically found the Second Respondent had not acted in the bullying way contended (ET paragraphs 35 to 36) and there were no threats in terms of any discussion of legal advice in the context of the new contractual arrangements (paragraph 41). No challenge is made to those findings but they would be fatal to the Claimant’s case even if he could succeed on the perversity points raised.
The Reasonable Adjustments Claim
- By ground 2, the Claimant takes issue with the Ahmed ET’s limited consideration of his reasonable adjustments claim; specifically failing to address two complaints of being assigned inappropriately heavy duties when returning to work after periods of ill health.
- It is, again, fair to say that the Particulars of this claim were not identified with great clarity in the statement attached to the Form ET1. That said, as well as complaining in respect of the meeting of 18 March 2013, the Claimant also claimed:
“10. … When I returned to work on 16 February, I was assigned heavy duties against medical advice of the OHA and my GP. This made my health situation worse and I could not continue to work.”
- Subsequently, by his Further Particulars of 9 January 2014, the Claimant repeated this complaint (with more detailed Particulars) and also alleged:
“On 14 June 2013, James Foster (Department Manager) and the rota planners assigned me heavy duties when I made another attempt to return to work …”
- At the subsequent Preliminary Hearing before EJ Britton, the nature of the Claimant’s disability discrimination case was described as follows:
“32. … the disability discrimination claim starts with the treatment of [the Claimant] by [the Third Respondent] at a meeting that took place on the 18 March 2013. The Claimant … was by now on long term sick with stress and depression. Mr Duffin was trying to get him into a meeting …”
- Although the Britton ET recorded that this claim started with the Claimant’s treatment on 18 March 2013, it did not identify any subsequent incidents and did not reference any complaints of “heavy duties”. That said, the Respondents’ amended ET3 specifically denied that the Claimant was assigned “heavy duties” and the list of issues identified that the ET would need to determine:
“10. Was the Claimant assigned heavy duties upon attempts to return to work and if so, had the First Named Respondent been advised that the Claimant was unfit for heavy duties and/or using certain equipment and were the duties assigned appropriate?”
- For good measure, this was also an issue addressed in the Second Respondent’s witness statement (paragraph 17).
- Against this background, I return to the Ahmed ET’s Judgment. It assumes the allegation of a failure to make reasonable adjustments related only to the meeting of 18 March 2013 (paragraph 34.3); it does not allow for a complaint that the Claimant, when attempting to return to work after periods of ill health, was inappropriately assigned “heavy duties”. That, however, was a claim made in the ET1 and developed (with further details and an additional date) in the Further Particulars that the Britton ET apparently treated as amendments. Although not specifically referenced in the Britton ET’s Judgment, I do not think I can read that as meaning this claim had been withdrawn or dismissed. On that basis, by limiting its consideration of this claim to the meeting of 18 March, the Ahmed ET erred in failing to engage with the pleaded claim in respect of Claimant’s attempts to return to work and the alleged imposition of a PCP of the assignment of heavy duties. The Claimant was apparently saying he was thereby placed at a disadvantage because of his disability, which would not be suffered by others in like circumstances without that disability. It is reasonable to infer he was saying a reasonable adjustment would have been to assign him to lighter duties.
- So far as the first such complaint is concerned (the return to work in February 2013), however, this point cannot go anywhere, given the Ahmed ET’s unchallenged finding:
“50. … there is nothing to suggest that the Respondents were aware, or could reasonably have been aware of the disability until 18 March 2013 …”
- That leaves a failure to address the complaint of having been assigned heavy duties upon the Claimant’s return to work on 14 June 2013 (or, rather, the complaint that the Respondents failed to make reasonable adjustments in this regard). This was not a instance specifically identified in the original statement attached to the Claimant’s ET1 (so far as I can see) but it was a matter detailed in the Further Particulars provided on 9 January 2014 and I note that the Britton ET – which treated the claim as having been “subject to some amendments” – allowed that the disability discrimination claim “starts with the treatment … on the 18 March 2013” (emphasis added). Whilst I consider that the ET should properly have recorded what it was permitting by way of amendments (parties do not simply have the right to amend their claims by providing Further Particulars), I am unwilling to say that this was not a matter raised by the pleadings. Certainly the Respondents had understood it was a matter that needed to be addressed in the Second Respondent’s statement (see paragraph 17(c)).
- On that basis, I am bound to uphold this particular ground of appeal: the ET erred in failing to address the Claimant’s complaint of disability discrimination by reason of a failure to make reasonable adjustments upon his return to work on 14 June 2013.
- That takes me to the complaint under this head relating to the meeting of 18 March 2013, with which ground 8 is concerned. The ET recognised the Claimant was complaining of the decision not to adjourn that meeting in view of his depressive condition (paragraph 42) but held that he had failed to identify a PCP and concluded, in any event, that he had suffered no disadvantage thereby. The Claimant challenges both those conclusions.
- To the extent that the Ahmed ET dismissed this claim upon the Claimant’s failure to identify a PCP, I consider it erred: the PCP was the requirement to attend the 18 March meeting. The issue was whether there was any disadvantage. On this point, the ET rejected the Claimant’s case that he was required to attend when there was no OH advice which stated that he was fit to do so: he had been required to attend a meeting in circumstances in which this was not prohibited by OH but identified as helpful in resolving a difficult situation (paragraph 43). Furthermore, the Ahmed ET was not satisfied that the Claimant was unable to attend that meeting (see its findings at paragraph 45). I note Mr Jackson’s submissions on the evidence on these points but these are attempts to re-argue the case. The weight to be given to the evidence was for the ET and I cannot say that it reached impermissible findings in this regard. Given those findings, I reject the challenge to the ET’s conclusion on disadvantage.
- I turn, therefore, to the harassment complaint, also relating to the meeting of 18 March, specifically, to what was said have been a breach of the confidential information about the Claimant’s medical condition, something that was evidenced to the Claimant by his experience of being called a “madman” on the shop floor (and see ground 6).
- In his ET1, the Claimant complained that the Third Respondent had:
“… picked a colleague of his choice Dave Spragg to represent me, discussing my personal and confidential matters with someone I don’t know without my authority. …”
- The Britton ET’s attempt to clarify matters does not seem to have engaged with this particular aspect of the claim and the Ahmed ET observed:
“34.2 … his harassment complaint also relates to the alleged treatment on 18 March 2013. Unfortunately, the witness statement of the Claimant, the Claim Form and the further and better particulars … do not make that clear but we have proceeded on the basis that it is an allegation being pursued in these proceedings.”
- The ET went on to conclude:
“48. The Claimant complains of a breach of confidentiality in relation to the meeting which [the Third Respondent] held on 18 March 2013. The suggestion is that Mr Spragg spoke to colleagues and there was suggestion that the Claimant was “a madman”. Insofar as that is an allegation of discrimination, there is no evidence that there was any breach of confidentiality by [the Third Respondent]. Mr Spragg was not acting on behalf of the respondent and anything done by him in terms of divulging confidential information does not render the first respondent liable.”
- The Claimant contends this conclusion misses the point of his complaint, namely that the Third Respondent divulged confidential information to Mr Spragg and normal vicarious principles then applied to Mr Spragg’s divulging of that information to others. That claim was not answered by saying Mr Spragg was not acting on behalf of the First Respondent.
- Whilst a question might arise as to whether the Ahmed ET was correct to assume that Mr Spragg’s actions could not render the First Respondent vicariously liable (he was another employee of the First Respondent and the case law suggests a broad approach is to be adopted to the question of vicarious liability in such circumstances), the Claimant was putting his case on the basis that the breach of confidence started with the Third Respondent. His pleaded harassment claim was founded upon the Third Respondent’s breach of confidence at the meeting on 18 March; it was not put as a self-standing complaint about Mr Spragg’s conduct thereafter. And it was because that was how the case had been put that – Mr Caiden tells me – the Respondents did not feel it necessary to call Mr Spragg as a witness. The ET cannot have erred in addressing the pleaded case before it (see Chandok). On that basis, regardless of what Mr Spragg went on to do or whether the First Respondent might have been vicariously liable for that conduct, the Claimant’s harassment case in this regard is answered by the Ahmed ET’s finding that there was no evidence that there was any breach of confidentiality by the Third Respondent (ET paragraph 48).
- As stated, I consider the Ahmed ET erred in failing to address the Claimant’s outstanding complaint of disability discrimination by reason of a failure to make reasonable adjustments upon his return to work on 14 June 2013 and I uphold ground 2 of the appeal in that respect. Save for that point, for the reasons I have given, the appeal is dismissed.
- That leaves the question of disposal. There is an absence of any findings on the specific point outstanding, which must require that I remit the case on this basis. Otherwise, within 14 days of the handing down of this Judgment, the parties are directed to exchange and lodge with the Employment Appeal Tribunal their written representations on the issue of disposal. If there are any other applications at this stage, they too should be raised in writing within the same time frame.
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