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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bird v Sylvester & Anor [2007] EWCA Civ 1052 (04 October 2007) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2007/1052.html Cite as: [2008] IRLR 232, [2008] ICR 208, [2007] EWCA Civ 1052

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE REID QC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		4th October 2007

Lord Justice Laws:

1. This is an appeal brought with permission granted by Sir Henry Brooke on 9 March 2007 against a decision of the Employment Appeal Tribunal presided over by HHJ Reid QC, given on 5 December 2006, by which it dismissed the appellant's appeal against a determination of the Manchester Employment Tribunal made on 18 July 2006. The employment tribunal had ordered that certain claims of victimisation brought by the appellant be struck out as having no reasonable prospect of success. The claims had been brought against the first respondent, the appellant's former employer, and the second respondents who were the first respondent's solicitors. I will refer briefly at this stage to the relevant provisions of the Race Relations Act 1976 relating to victimisation. Section 2.(1) provides in part:

"A person ('the discriminator') discriminates against another person ('the person victimised') in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has (a) brought proceedings against the discriminator or any other person under this Act".

I may break off there. Section 4.(2) provides in part:

"It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee…(c) by dismissing him, or subjecting him to any other detriment."

Section 33 provides in part as follows:

"(1) A person who knowingly aids another person to do an act made unlawful by this Act shall be treated for the purposes of this Act as himself doing an unlawful act of the like description.

(2) For the purposes of subsection (1) an employee or agent for whose act the employer or principal is liable under section 32…shall be deemed to aid the doing of the act by the employer or principal."

2. There is, as the employment tribunal was to observe, a considerable history to the matter; but the core facts may be summarised quite concisely. The appellant had since February 2001 been employed by the first respondent, who was an orthopaedic surgeon. She was employed as a receptionist/housekeeper. She was, however, off work sick from October 2004 until at length she resigned on 22 December 2005. In March 2005 she brought proceedings against the first respondent in the employment tribunal, alleging amongst other things race discrimination. I may refer to these proceedings as "the first claim." On 5 July 2005, before the first claim was heard, the second respondent solicitors, acting on behalf of the first respondent, wrote to the appellant's representatives asserting that the appellant had acted unreasonably, the claim was misconceived, and if it proved unsuccessful an application for costs would be made against the appellant, pursuant to paragraph 40 of the Employment Tribunal Rules 2004. However the matter proceeded, and the first claim was heard on 13 and 14 July 2005. The employment tribunal's judgment was set out in 12 September 2005. The tribunal upheld a complaint made by the appellant to the effect that she had not been issued with written particulars of her employment, but dismissed the claim of race discrimination. We have not seen the judgment, but there are a number of references to it in the papers. It appears that the tribunal found that the appellant had been an unimpressive witness who had exaggerated her evidence, and the claim was unanimously dismissed on the merits. The Employment Appeal Tribunal in the present proceedings (paragraph one of their judgment) stated that the race discrimination claim "failed abysmally".
3. The second respondents, on behalf of the first respondent, issued an application for costs against the appellant in relation to the first claim on the ground that that claim was unreasonable and misconceived. On 3 October 2005, which I think was the same day as that on which they issued the costs application, the second respondent wrote a 'without prejudice' letter to the appellant's representatives, the Bury Metro Racial Equality Council. It included this passage:

"Our Client has made a Costs Application to the Employment Tribunal for the full amount of our Client's costs for the sum of £13,806.25 including VAT.

However our Client is willing to accept 50% of the costs set out above if your Client will agree to all of the following: -

A. To resign from her employment forthwith without compensation and sign a Compromise Agreement and

B. To apologise to Bernard Sylvester, Anne Platt and Brenda Longden [I interpolate, Bernard Sylvester is the first respondent and the two ladies referred to were employees of his] and

C. To not Appeal the Employment Tribunal Judgment dated 12 September 2005."

The letter ends with a reminder of the solicitors' previous communication about costs made on 5 July 2005.

4. The appellant rejected this proposal. On 13 December 2005 the first respondent's costs application was heard by the employment tribunal and dismissed. They also dismissed a cross-application for costs which had been brought by the appellant in response to the first respondent's application. On 28 October 2005, and again on 15 December 2005, the second respondent wrote to the appellant's representatives indicating an intention to conduct disciplinary proceedings, in part by reason of the appellant's conduct in the first claim. The appellant raised what is called a written grievance against the first respondent. On 22 December 2005, as I have stated, the appellant resigned her employment. The appellant had sought to appeal to the Employment Appeal Tribunal against the employment tribunal's judgment on the first claim. However she withdrew that appeal shortly before the hearing, and on 16 March 2006 was ordered by the EAT to pay £500 costs. In the same month she launched her second claim, and these are the proceedings now before us. The appellant asserts against the first respondent that his application for costs notified in the letter of 3 October 2005, together with the terms of the proposal there set out for a settlement, and the subsequent pursuit of the application to the employment tribunal, amounts to victimisation within the meaning of section 2.(1) of the Race Relations Act 1976. She also seeks to say that she was victimised by the threat of disciplinary proceedings. Her claim against the second respondent solicitors relies on the same factual matters, and is brought pursuant to section 33 of the Race Relations Act 1976, whose first two sub-sections I have set out.
5. The employment tribunal was faced with an application by both respondents to strike out the claim. As regards the threat to take disciplinary action, the employment tribunal (see paragraph 21) declined to strike out that part of the claim as against the first respondent, and there is no cross-appeal. As for the primary case of victimisation against the first respondent relating to the costs issue, the employment tribunal said this at paragraph 22:

"Whilst as Mr Broomhead submits, the case itself has concluded [I interpolate: this is a reference to the first claim], this was a reserved decision and the first respondent was perfectly entitled, having read the reasons for the Tribunal's judgment, to take the view, as advised, that it was proper and appropriate to make an application for costs against the claimant. He was also perfectly entitled, through his solicitors, to make proposals to the claimant with a view to compromising the claim for costs, which could properly include a condition that the claimant resign. Whilst some people might describe such action as 'a threat', any attempt to compromise with a proviso that legal action will follow if compromise is not achieved, could always be described as 'a threat'. In fact, such is perfectly normal practice in the conduct of litigation (including matters of costs after judgment) and cannot in this Tribunal's judgment in any way form the basis of a victimisation claim. Accordingly that part of the claimant's claim is struck out on the basis that it has no reasonable prospect of success."

As regards the claim against the second respondent solicitors the employment tribunal reasoned as follows:

"18. In relation to the position of the second respondent Shammah Nicholls, it seemed to the Chairman to be contrary to public policy for a professional firm of solicitors to be at risk of becoming a respondent to proceedings simply by writing letters setting out the proposed course of action by their client, the employer, which the employee considers amounts to an act of discrimination or victimisation. Whilst the solicitor may provide advice to his client in relation to a proposed course of action, the solicitor acts on the instructions of the client and is merely the conduit through which the employer's actions or proposed actions are identified.

"19. Even if it is alleged that the solicitor is actively encouraging a particular course of conduct which may be discriminatory, it is impossible for a Tribunal to determine whether such has occurred or not without hearing or reading evidence of communications between that solicitor and his client. Such communications would generally be privileged and therefore the Tribunal could not permit such evidence to be adduced.

"20. In relation, therefore, to the inclusion of Shammah Nicholls as a respondent in these proceedings, so far as all the allegations against it are concerned, the Tribunal is of the view that there is no reasonable prospect of any claims succeeding against the second respondent and accordingly all claims against it are struck out."

6. It is unnecessary, with respect, to refer to the decision of the Employment Appeal Tribunal. It should by now be elementary that appeals to this court from the EAT's decision on appeal from the employment tribunal constitute, absent special circumstances, a further appeal from the employment tribunal itself.
7. There is one other matter to which I should refer before I confront the merits of the appeal. It is important to bear in mind that, as their Lordships' House held in Anyanwu [2001] Industrial Cases Reports 391, a strikeout should only be ordered in a discrimination case where the case is plain and obvious. The reason is that matters of this kind are inevitably fact-sensitive. I of course bear that in mind; and doing so, I turn to deal with the appeal relating to the case against the first respondent. It is submitted for the appellant by Mr Donavan of counsel that the first respondent's conduct in mounting and pursuing a costs application and giving instructions for the letter of 3 October 2005 was oppressive and overbearing. The costs claim was substantial. The appellant was on the statutory minimum wage. The threat of costs and the terms of the offer of compromise could be seen as an attempt to get rid of the appellant as an employee (who, as I have said, had been off sick since October 2004) at relatively little expense.
8. The argument was crystallised into a single submission of law in Mr Donavan's first skeleton argument, where it was said that the employment tribunal failed to direct itself in accordance with the decision of this court in Derbyshire & others v St Helens Metropolitan Borough Council (CA) [2006] Industrial Cases Reports 90. Had it done so, said Mr Donavan, the employment tribunal would have asked and answered the question whether the first respondent's relevant actions went any further than an honest and reasonable attempt to defend his interests. But the employment tribunal did not ask that question; at any rate not in terms. They did not refer to the Derbyshire case. Mr Donavan's argument however has had to be refined, because on 25 April 2007 their Lordships' House reversed this court's decision in Derbyshire. Their Lordships' reasoning drew particular attention to the notion of detriment in discrimination law. As it appears in that case in section 6(2)(b) of the Sex Discrimination Act 1975, here section 4(2)(c) of the Race Relations Act. It was held (see the head note 841F - G) that the question whether the relevant detriment had been suffered by an employee was:

"…to be determined primarily from the perspective of the alleged victim, and detriment would exist if a reasonable employee would or might take the view that the employer's conduct had in all the circumstances been to his or her detriment; that distress and worry that might be induced by an employer's honest and reasonable conduct in the course of his defence or in the conduct of any settlement negotiations would not normally constitute detriment".

The employment tribunal (see per Lord Hope at paragraph 28) were not bound to ask themselves whether the employer's conduct was "honest and reasonable".

9. Plainly, the appellant in this case could not longer sustain a case based simply on the employment tribunal's failure to refer to an honest and reasonable test. But it is submitted that the employment tribunal's reasoning in paragraph 22, which I have read, fails to consider the case from the appellant's perspective, that is, the perspective of the alleged victim, and this is contrary to the reasoning of their Lordships in the Derbyshire case. The discussion by the employment tribunal of the normal conduct of litigation looks at the matter impermissibly, so it is said, from the employer's point of view.
10. I have concluded, for my part, that these criticisms are misplaced. The 3 October 2005 letter was a perfectly reasonable and proper act in the context of the case. A reasonable employee -- and he or she is the notional determinant of such an issue, following their Lordships' decision in Derbyshire -- would not have concluded that the first respondent's stance on costs offered any detriment beyond what was properly involved in the honest and reasonable conduct of the first respondent's case. That is implicit in the employment tribunal's reasoning, though I certainly accept it is not expressed in that way. There would, as I see the matter, simply be no room for any other conclusion in the mind of the notional reasonable employee.
11. It is moreover, with respect, helpful I think to recall this passage from Lord Neuberger's opinion in Derbyshire at paragraph 69:

"As already mentioned, it seems to me that in practice the 'honest and reasonable' test suggested by Lord Nicholls in paragraph 31 of Khan would, at least in any case I can conceive of, be very likely to yield precisely the same result as the approach, having had the benefit of argument in support from Mr Hendy and Ms Gill focusing on the word 'detriment' in the present appeal, I would prefer. It is hard to imagine circumstances where an 'honest and reasonable' action by an employer, in the context or conduct of an employee's equal pay claim, could lead to 'detriment,' as that term has been considered and explained in the cases to which I have referred, on the part of the employee."

12. In addition it seems to me useful to recall these words of Lord Hoffman in the earlier authority to which Lord Neuberger there referred namely, Khan [2001] Industrial Cases Reports 1065 at paragraph 59:

"This decision, with which I respectfully agree, shows that once proceedings have been commenced, a new relationship is created between the parties. They are not only employer and employee but also adversaries in litigation. The existence of that adversarial relationship may reasonably cause the employer to behave in a way which treats the employee less favourably than someone who had not commenced such proceedings. But the treatment need not be, consciously or unconsciously, a response to the commencement of proceedings. It may simply be a reasonable response to the need to protect the employer's interests as a party to the litigation."

13. I may break off there. In all these circumstances, it seems to me that the employment tribunal were right to strike the case out as against the first respondent in relation to that part of the claim which concerned the costs issue. There simply was no room here, on any permissible view of the facts, for a conclusion that there was or might have been victimisation.
14. I turn to the case against the second respondent. Necessarily, if my lords agree with my conclusions in relation to the first respondent, the only part of the case that is left relates to any part played by the second respondent in the threat or institution of disciplinary proceedings against the appellant. Now, it is accepted that a party who gives information to another, upon which that other then relies in performing an unlawful discriminatory act, might attract liability under section 33.(1) of the 1976 Act (see Hallam and Another v Avery and Cheltenham Borough Council [2001] Industrial Cases Reports 408). But it is important to see exactly what has to be proved. As Lord Bingham stated in Hallam at paragraph nine, citing the first instance judge below, section 33 requires the alleged secondary party:

"'…to have knowingly aided the council [that is the first party] to do an act made unlawful by the Act.'"

15. The facts of Hallam involved an allegation that police had given information to a local authority which led the authority to impose onerous conditions on a booking of council premises for what was described as a "gypsy wedding". Lord Millett said this:

"18. [That] this shows the importance of correctly identifying the act of the principal which the accessory has alleged to have aided. In the present case the police provided information which helped the council to reach a decision what to do about the situation; but this is not the act which the statute makes unlawful. The information which the police provided did nothing to help the council carry out their decision, whether to cancel the reservation of the Pump Rooms for the wedding reception or to impose conditions on entry. That was the act which the statute made unlawful, and in doing it the council neither needed nor obtained the aid of the police. The distinction may appear narrow and even technical, but it is neither. The man who helps another to make up his mind does not thereby and without more help the other to do that which he decides to do. He may advise, encourage, incite, or induce him to do the act; but he does not aid him to do it. As I said in Anyanwu v South Bank Student Union [2001] ICR 391, 407A, aiding requires a much close involvement in the actual act of the principal than do either encouraging or inducing on the one hand or causing or procuring on the other."

16. In this case, the second respondent's solicitors provided a detailed letter of advice to the first respondent, dated 19 September 2005, and it is certainly to be inferred that they advised him on other occasions. Privilege in the letter has been waived. It is before us as I understand it to have been before the tribunals below. It deals among other things with the possibility of making an application for costs against the appellant, but I need not refer to that. The relevant passages for present purposes are these: page three of the letter under the heading 'Disciplinary Hearing':

"I believe disciplinary proceedings should be conducted on the basis of 1) the Claimant's conduct 2) breach of the duty of fidelity and 3) continuous absence for sickness. The outcome of the disciplinary proceedings will provide an indication of the next appropriate action to take and if dismissal is appropriate."

Then over the page:

"I then believe…that disciplinary proceedings should be commenced against the Claimant in accordance with the Practices disciplinary procedures which the Claimant will have received with her Particulars of Employment."

At the end of the letter:

"I suggest that we meet to discuss all matters as soon as possible. Please contact Cheryl Brady to make the arrangements."

17. It is clear beyond the possibility of rational contest that the decision to take disciplinary proceedings was and was only, that of the client, the first respondent. The second respondents did not participate in the decision as such. They advised that such proceedings should be taken. They may have so advised in emphatic terms. Sections from the solicitor's witness statement in these current proceedings, relied on by Mr Donavan this morning, certainly suggest that that is so. But they do not, to my mind, begin to demonstrate that the decision to take disciplinary proceedings was in any sense the decision of any person or party other than that of the first respondent himself. On the authority of Hallam, it seems to me plain that the second respondent's role as an adviser cannot render him a participant, an actor, an aider within section 33.
18. What remains? The solicitors wrote letters to the appellant's advisers, and to the appellant herself, on behalf of their client the first respondent. One letter was dated 27 January 2006, and Mr Donavan has relied on it. The letter, I should say, is to the appellant herself. Under the heading "Your conduct":

"I believe that your claim [referring to the first claim] was misconceived and that you had no prospect of success. Further I believe that your submissions amount to misconduct and breach of the duty of fidelity.

The Employment Tribunal stated that your evidence 'lacked clarity and was unspecific' and was 'prone to exaggeration and hyperbole'. In addition the Employment Tribunal stated that you 'showed yourself to be manipulative' in giving evidence with regard to the bounced cheque and that you 'indulged' in exaggeration and saw conspiracy everywhere without any foundation. Ultimately the Tribunal decided that you had received no less favourable treatment than a hypothetical comparator and therefore dismissed your allegations for Race Discrimination."

Then on the second page of the letter:

"I believe that your conduct in commencing litigation and your submissions in connection with the litigation were unreasonable and unfounded and therefore Bernard Sylvester as your employer is justified in bringing disciplinary proceedings against you in order to deal with the matter appropriately in accordance with the procedure set out in the Employment Act 2002.

Equally, you are entitled to set out a grievance and, in the ordinary course of events, that grievance would be dealt with in association with the intended Disciplinary Proceedings."

19. It is perhaps worth noticing that this letter is in reply to two letters written apparently by the appellant herself to the first respondent. The employment tribunal, as I have shown, used the term "conduit" in relation to the actions of the solicitor, and it is plain that the solicitor was doing no more nor less than acting on his instructions. Those instructions followed, no doubt, a decision taken by the first respondent that was itself informed by advice given by the solicitors. The question is whether it is in truth arguable that such action taken by the solicitor, and not least the letter to which I have just referred, can be said to amount to aid within the meaning of section 33 of the Race Relations Act. In my judgment the alleged act of victimisation, the threat or institution of disciplinary proceedings, is necessarily the act of the principal, the first respondent. The execution by the solicitor of his client's instructions in the matter is not, as I see it, something that is properly to be treated as aiding in the particular context of section 33. That, I think, would prove too much and distort the operation of the statute. It would engage liability upon the shoulders of a solicitor in any case where, though for his part he was doing nothing more than acting on his instructions, those instructions involved some decision by his principal that might offend the discrimination provisions in the Race Relations Act and the Sex Discrimination Act.
20. The employment tribunal were plainly impressed by public policy considerations. I have considered whether by force of the public interest in the integrity and effectiveness of the solicitor-client relationship, the court should go so far as to hold that a solicitor acting within the terms of his retainer can never be liable under section 33. But I doubt whether that is so. Extreme situations may be envisaged in which the solicitor himself actively promotes, perhaps for a malign motive, oppressive actions, and actively carries them along. I would, however, suggest that it is very difficult to see how a solicitor who confines himself to giving objective legal advice in good faith as to the proper protection of his client's interests, and acts strictly upon his client's instructions, could be at risk of an adverse finding under section 33 of the Race Relations Act. Something more than that, as it seems to me, is required if a person is to be shown to have knowingly aided an unlawful act within the meaning of that sub-section. I accept, and Mr Donavan has laid some emphasis on this this morning, that the employment tribunal did not, on this part of the case, analyze the documentary evidence; and it may be that they considered that a solicitor can never be liable under section 33 -- a proposition which, as I have just indicated, I would not for my part accept. At all events, I am clear that the tribunals below were right to exonerate these solicitors and to do so by acceding to the application to strike out the claim against them, even though that is rarely the proper course (see Anyanwu).
21. The circumstances here are unusual. The case will proceed against the first respondent in relation to the disciplinary aspect. That, it seems to me, is the proper reach of any claim that now remains. The employment tribunal, as I have shown, referred to the possible difficulties of proof in a claim brought against solicitors, difficulties that might arise by virtue of the impact of legal professional privilege. The issue is moot in this case because privilege was waived. I need say no more about this aspect than that, perhaps, it illustrates the unlikelihood of viable proceedings under section 33 being properly available against a firm of solicitors.
22. For all the reasons I have given, I would dismiss the appeal.

Lord Justice Gage:

23. I agree.

Lord Justice Rimer:

24. I also agree.

Order: Application refused.