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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Fincham v. HM Prison Service [2002] UKEAT 0925_01_1912 (19 December 2002) URL: http://www.bailii.org/uk/cases/UKEAT/2002/0925_01_1912.html Cite as: [2002] UKEAT 925_1_1912, [2002] UKEAT 0925_01_1912

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APPEARANCES

 

For the Appellant	MR S CRAMSIE (Of Counsel) (On Pro Bono Basis)
For the Respondent	MR P COPPELL (Of Counsel) Instructed by: The Treasury Solicitor Queen Anne's Chambers 28 Broadway London SW1H 9JS


 


MR JUSTICE ELIAS

1. These are two appeals both arising out of the same original application to an Employment Tribunal. The background briefly is this. The Appellant was employed as Operations Support Grade Personnel in the Respondent's Works Department from 4 January 2000 until 13 October 2000.
2. She made various allegations of harassment by certain members of staff, and two members of staff in particular. Initially she was on a three month contract and that was renewed, but subsequently that contract was brought to an end on 13 October. On 28 December she lodged an Originating Application with the Employment Tribunal and she made allegations of racial discrimination and that she had been discriminated against on grounds of protected disclosure contrary to section 43B of the Employment Rights Act 1996.
3. On 13 February there was an Interlocutory Hearing at which the Tribunal made an Order for further particulars of the Originating Application. The Appellant was required before 2 March 2001 to supply particulars of the claim of race discrimination setting out short particulars of each act relied on as an act of race discrimination, the date of each such act, and the name or names or member or members of the Respondent's staff said to have been concerned in each such act.
4. The Appellant was also asked to give particulars in relation to any claim of victimisation discrimination, if indeed it was her intention to advance such a claim. It was not clear following the hearing on 13 February whether that was the Appellant's intention or not. She was also required to set out relevant allegations concerning protected disclosures, and it is not necessary to set out the material that the Tribunal sought.
5. Further particulars were supplied on 23 February. Paragraph 1 of those particulars said:

"I confirm that the Applicant complains of racial discrimination contrary to the Race Relations Act."

Paragraph 2 set out various protected disclosures and paragraph 4 set out the incidents of harassment etc complained of, identifying the occasions when it was alleged that the relevant officers who had subjected her to harassment had done so, and what it was that they had done. Paragraph 5 set out the detriment suffered by the Applicant as a result of the failure by the Respondent to meet its legal obligations. It was as follows:

"5 The detriments suffered by the Applicant as a result of the Respondent's failure to meet a legal obligation, i.e. to pay attention to the Health and Safety of the Applicant and to deal with presumed racist victimisation are as follows:

(1) Having had to undergo continued anxiety, demoralisation and feat.

(2) Having been segregated at work (unlike colleagues).

(3) Having been refused renewal of contract in circumstances which are presumed to have remained unchanged since previous renewals - except that the Applicant had entered a written complaint.

(4) Having been refused promotion (after passing all the tests associated with recruitment to Prison Officer Grade) - allegedly because of failures to integrate in a team (where harassment and prejudice operated) and also because of health grounds which were not referred to - although known about - until the letter of refusal of promotion was sent"

6. The Respondents put in an amended Notice of Appearance on 26 March. As far as the allegation of discrimination by way of victimisation is concerned, they indicated in that Notice of Appearance that they were assuming that the Applicant was no longer complaining of such discrimination but in addition they indicated that they would be contending that the Applicant should be barred from pursuing any such claim, because of the failure to provide particulars of that claim, contrary to the Order of the Tribunal.
7. In relation to the race discrimination claim (that is, other than the victimisation aspect of that claim) they contended that the facts and matters set out in the particulars did not, as a matter of law, constitute a valid claim and that the particulars did not identify any incidents of harassment as having been racially motivated.
8. There was a pre hearing review on 7 June. At that hearing the Respondent sought to have the Originating Applications struck out for want of prosecution. The Chairman rejected that application but commented that the particulars of discrimination 'manifestly did not provide sufficient details to comply with the Order made by the Chairman'. In these circumstances, the Chairman served notice on the Appellant under Rule 4(7) giving her an opportunity to show cause why the whole or part of the Originating Application should not be struck out on the grounds of failure to comply with the Order.
9. The letter showing cause was sent on 11 June 2001. It was in standard form and did not identify specifically the particular way in which it was said that the further and better particulars provided had failed to comply with the order. There was then a response from the Appellant on the 14 June 2001. In that response the Appellant made no reference at all to allegations of race discrimination under Section 1 of the Race Relations Act but noted that the order required, inter alia, that the Applicant should state if she was relying on Section 2 of that Act i.e. victimisation and also provide particulars in connection with protected disclosures under the Employment Rights Act.
10. The Appellant made it plain that she was intending to rely upon Section 2 whilst recognising that the further particulars did not expressly refer to it. She contended that no part of the Originating Application should be struck out and at paragraph 8 she said this:

"Subject to one matter which recently came to light, the facts pleaded are substantially the same in respect of

i. Protected Disclosure, and

ii. (RRA Section 2) Victimisation.

If there is a case on merit based on the EPA (as amended) (that is a reference to the provisions in the Employment Rights Act) then there would one based on the RRA Section 2."

11. There was then a decision of the Tribunal in relation to the application to strike out and that was heard on 19 June with the decision being sent to the parties on the 21^st. The Tribunal concluded that all the race relations' elements (including victimisation) of the Originating Application should be struck out, but that the complaint made pursuant to Section 47B of the Employment Rights Act should be allowed to continue on the basis that there had been proper particulars provided for that aspect of the complaint.
12. Subsequently, the Tribunal heard the claim made but pursuant to Section 47B on 18 July 2001. They held that there had been no relevant disclosures falling within Section 43B(1) of the Employment Rights Act and that accordingly Section 47 was not engaged. Both those decisions are now the subject of appeal. We will deal with the two decisions separately.

The Striking Out Decision

13. As we have indicated, the Tribunal held that there had been a failure to comply with its order on further and better particulars, and furthermore it concluded that no satisfactory explanation had been provided in the letter of 14 June for that failure to comply. Mr Cramsie submits that in the circumstances the Tribunal erred in law in its approach to this matter. The Tribunal said in terms that the further and better particulars provided on 19 February 'did not provide any of the particulars specified in the Tribunal's order' i.e. particulars in respect of the Race Relations Act claims. It further provided that the letter of 14 June did not provide the particulars specified either. Mr Cramsie says that if one looks carefully at the documentation in this case, it is plain that the Tribunal misdirected itself in saying that these particulars had not in fact been provided. Furthermore, he submitted that in a case of this kind justice required that a party should not be prevented from pursuing their claim by a failure to provide particulars in circumstances where that failure could be made good well in advance of any hearing before the Tribunal. He referred us to the case of National Grid Company v Virdee [1992] IRLR 555 a decision of this Tribunal in connection with a failure to comply with an order for discovery. In that decision this Tribunal noted that it was not in general appropriate to strike out for failure to comply with orders of discovery as a punishment for that failure to comply.
14. Mr Cramsie says that it was plain from the Originating Application that the Appellant was complaining about harassment 'based on racial discrimination'. The particulars then provided on 19 February set out in detail in paragraph 4 the particular incidents of harassment complained of. True it is, as he accepted, that paragraph 4 did not in term say 'these are the incidents of harassment based on racial discrimination'. But he submitted that the further and better particulars must be read together with the Originating Application and it was perfectly obvious that the Appellant was providing details of the alleged harassment by colleagues at work, and that this constituted a plain case of discrimination under Section 1 of the Race Relations Act.
15. He also observed that whereas the Notice of Appearance raised the issue of whether there was any victimisation discrimination being pursued at all, it did not in like terms indicate that there had been no claim of racial discrimination at all. Mr Coppel for the Respondent accepted that one must read the further and better particulars together with the Originating Application, but noted that the Originating Application says this:

"The Respondent failed to deal with harassment based on racial discrimination against the Applicant."

He said that the focus of the Originating Application had been on the failure of the Respondent to take up and resolve the harassment complaints, and that it did not in terms indicate that the Appellant was complaining directly about the incidents which gave rise to the harassment and which was set out in paragraph 4 of the further and better particulars. We consider that that is too narrow an analysis of this documentation.

16. It seems to us that it was plain from the Originating Application that the Appellant was concerned with harassment based on racial discrimination, and that full particulars of that were provided in paragraph 4. We accept that the Originating Application was not as clear as it might have been in indicating that there was a distinct complaint of harassment under Section 1 of the Race Relations Act, but we consider that read fairly that is how the document should have been construed.
17. We think therefore that the Tribunal did err in its decision in concluding that the further and better particulars did not provide any particulars required by the Tribunal's Order. We consider they did provide particulars of the claim of direct discrimination. The position with the allegation of victimisation discrimination, however, is more difficult. Mr Cramsie accepted that the further and better particulars do not as such identify victimisation discrimination. It is right to say that there are hints of that, not least in the paragraph that we have set out above that deals with the question of detriment. Some of the elements of detriment there identified are plainly consequences which result from an employer taking action directed against an employee.
18. Nonetheless Mr Coppel was right to say in our view that victimisation discrimination is certainly not clearly identified in that document, and we also accept that at that stage the Respondents could justifiably have concluded that the Appellant was not intending to continue to pursue that claim. However, it seems to us that following the letter of 14 June, it was not possible to maintain that argument. Paragraph 8 of that letter, to which we have already made reference, says in terms that the facts pleaded for protected disclosure and victimisation are substantially the same. That, it seems to us, is admittedly a shorthand but it is indicating that in relation to the victimisation complaint what the Applicant is saying is that those matters which are protected disclosures, and those detriments which she identified in the further and better particulars as flowing, she alleges, as a consequence of making the protected disclosures operate in precisely the same way in relation to the victimisation claim. In other words, she was saying that these disclosures also demonstrated acts of racial discrimination and as a consequence the employers took the adverse steps against her which were identified in paragraph 5 of the further and better particulars.
19. Given that the Tribunal found that the particulars provided were sufficient for the purposes of complying with the Order in relation to protected disclosure, it seems to us that they were wrong to say that no particulars were provided in the letter of 14 June. The particulars given in this admittedly rather unattractive shorthand way, nonetheless did bring to the attention of the Respondents and the Tribunal the essential nature of the claim. We say nothing about the merits of the claim, but we do think the Tribunal erred both in concluding that there was nothing in the letter of 14 June which identified the nature of the claim and, indeed, in not looking in any event more broadly at the nature of the failure to comply with the obligation in this case. This was not a matter where the Appellant was in flagrant or deliberate breach of the Order for plainly there had been a relatively detailed attempt in February to set out the relevant particulars. They were deficient. The attempt to put them right in June in our view largely did so, although it is not too difficult to be critical of the way in which it was done. We consider the Tribunal ought to have had regard to the nature and character of the breach before concluding, as they did, that the case should be struck out.
20. We should add that we have very much borne in mind the submission which Mr Coppel urged upon us in this matter that we must be careful not readily to substitute our own view for that of the Industrial Tribunal when dealing with interlocutory matters of this kind. There is plenty of authority including cases such as Medallion Holidays v Birch [1985] ICR 578 and Adams v West Sussex County Council [1990] IRLR 215 which show that we should only interfere if we are satisfied that the Tribunal did err in some material respect or exercise its discretion on a Wednesbury unreasonable basis.
21. But as we have said, we think that the Tribunal did err in this case in saying that there had been no information provided in the further and better particulars on 19 February and again in saying that no additional particulars were provided in the letter 14 June. No doubt that caused them to take the view that the Appellant simply had not seriously and properly focussed on the obligation, but in the circumstances we do not think that was supported by an analysis of the position. Accordingly, this appeal succeeds and we would direct that these particular claims of race discrimination ought now to be heard by the Tribunal.

We now turn to the second appeal. In order to deal with this we need briefly to set out the legislative material. Section 43B(1)(b) and (d) of the Employment Rights Act 1996 are as follows:

"(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,"

22. Section 47B then protects a worker who has made a protected disclosure and suffers a detriment as a result in the following way:

"[47B Protected disclosures

(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure."

23. There is a similar form of protection where the employer is dismissed rather than being subject to some detriment short of dismissal, found in Section 103A of the Act. The Tribunal in this case heard submissions to the effect that the employee had made protected disclosure both by notifying the employer that it had failed to comply with legal obligations to which he was subject under subparagraph (b), and also under subparagraph (d) that the health and safety of the individual, that is in this case the Appellant herself, was being or was likely to be endangered.
24. The specific breaches of legal obligation relied upon were infringements of obligations under Health and Safety legislation, and the breach by the employer of the duty to respect the trust and confidence of the employee. We were referred to the decision of this Tribunal in Parkins v Sodexo [2002] IRLR 110, Judge Altman presiding, in which the Tribunal took a broad view of what would constitute a legal obligation within the terms of this section. That Tribunal held that it would include breaches of the contract of employment and we agree with that.
25. The Tribunal heard evidence from the Appellant and having heard that evidence they concluded that there were no protected disclosures falling within the terms of Section 43B. They set out their reasons very succinctly between paragraphs 4-6 of their decision:

"4. We do find, however, that on the Applicant's evidence as heard this morning, none of the disclosures made tended to show any of the matters set out in section 43B of the Employment Rights Act 1996. We have looked very carefully at the Applicant's statement and we have looked at out notes of her oral evidence given today. At page 7 of her letter of 12 June to Mrs Field, she states "I feel under constant pressure and stress awaiting the next incident". That is not a statement which tends to show that her health or safety has been, is being or is likely to be endangered. At no time did the Applicant say anything to a manager which would tend to show that there had been a breach by the Respondent of the Race Relations Act.

5. Finally, we considered whether the Applicant's disclosures or any of them tended to show a failure by the Respondent to comply with any of its legal obligations. We find that they did not. Almost every day in almost every workplace employees complain to managers of their treatment by other employees, often with good reason. Indeed, what has been revealed here appears to have been a hotbed of malice and petty spitefulness. It cannot possibly be the case, however, that each complaint tends to show a failure by the employer to comply with a legal obligation. The legal requirement on the part of an employer not to breach trust and confidence between employer and employee is not broken by an employer every time one employee behaves badly to another. It cannot be within the compass of the statutory provisions contained in sections 43B an d47B of the Employment Rights Act that every time there is bad behaviour by one person to another on works premises, the aggrieved employee may complain of it and then obtain the protection of the statute.

6. We do not consider that the wording of section 43B of the Employment Rights Act in any event allows Tribunals to look at disclosures collectively. Each one must be looked at individually and none of these complaints made by the Applicant to her managers was such that it tended to show a failure to comply with the implied term of trust and confidence which must exist in every contract of employment.

26. Mr Cramsie submits that the Tribunal erred here in a number of ways. First, he maintained that the Tribunal ought to have permitted the Appellant not just to pursue a claim under Section 47 but also a distinct claim under Section 103 since she had been dismissed. That was not mentioned in the Originating Application but it must have been raised at some point at the Tribunal. What apparently happened was the Chairman of the Tribunal explained the interrelationship between Section 47 and Section 103. The Appellant submits that she understood that the Tribunal was indicating that she either had to pursue her claim under Section 47B or pursue a claim under Section 103A.
27. She was represented by somebody from the Citizens Advice Bureau but not a lawyer. She considered with her adviser the comments made by the Tribunal as to the legal position and indicated, following that consideration, that she wished to pursue matters only under Section 43B. Mr Cramsie submitted before us that accepting, as he finally, did that the Appellant probably simply misunderstood the explanation given by the Tribunal, nevertheless it was such a curious decision to drop the claim under Section 103A that the Tribunal ought to have been alert to the possibility that this matter had been misconstrued, and they ought to have enquired as to the reasons for the withdrawal to satisfy themselves that she was not doing anything foolish. We reject that argument. We would certainly accept that had the Tribunal thought it appropriate to raise the matter to satisfy themselves that there had been no misunderstanding then we very much doubt whether the Respondents could have criticised the Tribunal for having taken that step.
28. But what is being said here is that the Tribunal is in breach of some duty in failing to alert the employee in the circumstances that what she was proposing to do was not, from her point of view, a particularly sensible decision. There cannot be an obligation on Tribunals to act as supervisors of the advice given to parties before them and it would wholly discourage Tribunals from giving the kind of helpful and informal advice they often do if they were to be at risk of being said to have acted improperly when having given their best understanding of the law for the benefit of a party.
29. Accordingly we reject that aspect of the appeal. But Mr Cramsie has a number of other points which he urges upon us. First, he says at paragraph 4 of the decision the Tribunal must have erred when it said that the statement: "I feel under constant pressure and stress awaiting the next incident" was not a statement tending to show that health or safety had been or was being likely to be endangered. The language of the Tribunal in that paragraph of course picks up the provision in Section 43B(1)(d). Mr Coppel submitted that it would be wrong for us to conclude that the Tribunal's statement here was wrong. He accepted that the comment made by the Appellant in the letter of 12 June was capable of demonstrating that the health and safety was or was likely to be endangered, but submitted that it did not necessarily have that meaning. In this case the Tribunal had heard evidence from her and had seen this letter of 12 June which we have not had the benefit of seeing, and had concluded that the statement did not tend to show that her health and safety was being or was likely to be endangered.
30. We do not accept that analysis. What the Tribunal is saying is that the statement does not tend to show that health and safety was likely to be endangered. We found it impossible to see how a statement that says in terms "I am under pressure and stress" is anything other than a statement that her health and safety is being or at least is likely to be endangered. It seems to us, therefore, that it is not a matter which can take its gloss from the particular context in which the statement is made. It may well be that it was relatively minor matter drawn to the attention of the employers in the course of a much more significant letter. We know not. But nonetheless it does seem to us that this was a disclosure tending to show that her own health and safety was likely to endangered within the meaning of subsection D.
31. The Tribunal also concluded that there had been no breach by the Respondent of the Race Relations Act. We note here that it was not being alleged before the Tribunal in this context that there had been breaches by others of the Race Relations Act but the issue seems to have been run on the basis that there were breaches by the Respondent directly. The finding of the Tribunal that there had been no such breaches seems to us to be one they were entitled to reach on the evidence. It was suggested to us by Mr Cramsie that there was some evidence to the effect that the Appellant had complained to one of the managers that she might be discriminated on grounds of race. But even if that were so, it is plain that the Tribunal has not accepted that. Alternatively it may not have been something which was the subject of a disclosure within the meaning of the legislation.
32. Mr Cramsie also contends that the Tribunal erred in law in paragraph 5 of its decision when it concluded that there had been no breach of the duty of trust and confidence. He said the Tribunal were wrong to require that disclosures must be looked at individually. He submitted that they could and should be looked at collectively in an appropriate case. In our view there is no valid criticism that can be made at paragraph 5. If an employee complains on various occasions about the conduct of other employees that is not of itself demonstrating any breach of any duty by the employer at all. Of course there can be a breach of trust and confidence resulting from a whole series of acts of inattention or carelessness or any inconsiderate behaviour by an employer over a period of time.
33. But there must in our view be some disclosure which actually identifies, albeit not in strict legal language, the breach of legal obligation on which the employers is relying. In this case the Tribunal found none. We have no reason to conclude that they erred in law in reaching that conclusion.
34. That leaves the question of what we should do with this decision. As we have indicated, we found that the matters in relation to the race discrimination claim should go now for consideration by a Tribunal. We further consider that there was an error by the second Tribunal in relation to its approach to the question of whether there had been a protected disclosure falling within the terms of Section 43B(1)(d).
35. In all the circumstances, not without some hesitation we think that this case has to go back to be reconsidered by a different Tribunal and they will simply have to hear all these matters together. It would make no sense to have the race element considered separately from the protected disclosure provisions and accordingly we uphold this appeal albeit only on a relatively narrow ground. Our conclusion is that in the circumstances notwithstanding the delays that have already occurred - eighteen months now since the matter was heard by the Tribunal - this case will have to be reconsidered by another Tribunal.