Appeal No.  UKEAT/0536/10/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 April 2011

Before
THE HONOURABLE MR JUSTICE BEAN
MR D EVANS CBE
DR B V FITZGERALD MBE LLD FRSA

MS J SMALL	APPELLANT

BARKING HAVERING AND REDBRIDGE NHS TRUST	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR DAVID RENTON
(of Counsel)
(Free Representation Unit)
	
For the Respondent	MR OLIVER ASSERSOHN
(of Counsel)
Instructed by:
Messrs Beachcroft LLP
Portwall Place
Portwall Lane
Bristol
BS99 7UD	

SUMMARY
SEX DISCRIMINATION
Inferring discrimination
Burden of proof
RACE DISCRIMINATION
Inferring discrimination
Burden of proof

In respect of two out of two of a large number of complaints the Employment Tribunal had not made clear findings as to whether the Claimant had established facts raising an inference of sex discrimination under the “first stage” of Igen v Wong and, if she had, whether the employers had discharged the “second stage” burden of proof.  Case remitted in respect of sex discrimination complaints only but not race discrimination complaints since the Claimant had plainly not established “first stage” facts establishing a possible inference of race discrimination.

THE HONOURABLE MR JUSTICE BEAN
Introduction
1.	The Claimant is a black woman of Afro-Caribbean ethnic origin who has been employed by the Respondent Trust as a nurse since 1989.  She issued five claims against them in the Employment Tribunal, one in 2008 and four in 2009.  The five claims were consolidated and heard together in January 2010 before Employment Judge Goodrich and two lay members.  The Respondents were represented by Mr Assersohn of counsel who has also appeared before us.  The Claimant was represented by her sister and by a friend.

2.	The closing submissions on behalf of the Claimant covered issues of law and fact in considerable detail.  The Employment Tribunal had to consider a number of allegations about various incidents generally described as “race and/or sex discrimination and harassment”.  We commend the Tribunal for the fact that they were able to deal with the case in six working days plus time for deliberation and produced a judgment which is criticised before us essentially only in respect of two paragraphs, though they are very important ones.

3.	The Employment Tribunal upheld an allegation of sex discrimination concerning the Respondent’s failure to consult the Claimant about changes to her shift patterns.  There is no appeal by the Respondent against that finding.  The Tribunal dismissed all Ms Small’s other complaints and now with the advantage of representation by Mr Renton of counsel, she appeals against the dismissal of two particular complaints which we shall come to shortly.

The facts
4.	Ms Beverly Sawer was the Claimant’s line manager in 2007 and was then the senior ward sister on Erica Ward.  The relationship between the Claimant and Ms Sawer was not a happy one.  Both gave evidence before the Tribunal and the Tribunal was critical of each of them both in respect of their behaviour towards each other at work and also describing the evidence of each of them as unconvincing, at least in certain respects.

5.	The first issue on which the Claimant appeals concerns the stopping of her sick pay.  The Respondent had a policy on the notification of sickness absence, as most employers do.  This included, as the Tribunal found, provisions requiring prompt notification on the first day of absence; the completion of a return to work notification form by the staff member concerned; and, in the case of an absence of eight calendar days and beyond, a GP’s certificate.

6.	The Tribunal found in paragraph 71 as follows:

“In dispute between the parties is whether, or the extent to which, the Claimant submitted sick certificates late.  We find that the Claimant did submit sick certificates in late and did so regularly, although not as regularly as Ms Sawer understood the position to be at the time.  There are also some extenuating circumstances for the Claimant’s lateness in submitting certificates, such as that she had difficulties in getting medical appointments promptly and the doctor’s certificates getting through to the Claimant.”  

7.	The Claimant was off sick for a period of months in 2007 with what she described as multiple pregnancy related illness.  At some point in 2007, her sick pay was stopped.  On 29 September, she wrote a letter to Ms Sawer complaining about the stopping of her sick pay.  She stated that she felt:

“... harassed by my employer whilst heavily pregnant with multiple pregnancy related illness causing severe emotional stress and would like to know how you intend to rectify the situation.”  

8.	This was treated as a grievance and the Respondent did deal with it, though rather slowly.  In May 2008, a Ms Wright, Deputy Director of Nursing Services for the Respondent decided to restore the sick pay but it was not actually paid to the Claimant until January 2009.  That is more than a year after the period which was in question.  The Tribunal found at paragraph 147.2:

“The Claimant had her sick pay stopped.  The Claimant was late in sending in sick certificates and in notifying her managers promptly as to when she would be returning to work.  It is necessary for managers, when running a ward for people in a vulnerable condition and needing care, to be able to plan the staff rotas.  Ms Sawer had valid grounds for being concerned about the Claimant’s behaviour.  Nor did the Claimant help herself by being rude and unco-operative when an attempt was made to contact her as described in our findings of fact.  The Claimant was also in breach of the Respondent’s sick pay policy.  Ms Sawer did not handle the issue particularly well - it would have been better to have warned the Claimant that, unless she did send the certificates in promptly and keep her managers informed she would have her sick pay stopped, rather than stopping it without prior warning.  The meeting on 25 September 2007 to discuss the stopping of sick pay did not go well, although the Claimant also needs to take responsibility for having behaved badly herself at that meeting.”  

9.	  The second issue can be called the “return to work letters” issue.  The Claimant went on maternity leave in November 2007 and returned to work almost exactly a year later.  During this period, it was decided by a Mr Stone of the Respondent’s Human Relations Department that Ms Sawer would no longer be the Claimant’s Line Manager.  Ms Kulvinder Sandhu took Ms Sawer’s place.

10.	There was a question of calculating the number of days annual leave which the Claimant was entitled to take at the end of her maternity leave before actually returning to work.  Perhaps unwisely, Ms Sandhu asked Ms Sawer to write to the Claimant about this subject.  The Tribunal found that the Claimant was “understandably surprised” by being written to by Ms Sawer.  We have seen the emails and Mr Renton rightly does not make any criticism of their content.  What his client was distressed by was the fact that, notwithstanding she had been told Ms Sawer was no longer to be her manager, the letters (strictly speaking two letters and one email) came from Ms Sawer.

11.	It is sufficient to refer to the first communication, the email of 22 October 2008 which includes this sentence:

“Your new Matron is Agatha Pollock, however as I have been dealing solely with your case, I will continue to do so until you return to work.”  

12.	This and the other communications made it clear that it was only until the Claimant’s return to work that Ms Sawer was going to deal with her.  She was not going to be the Claimant’s line manager in any more permanent sense and of course the dealings between the parties prior to the Claimant’s return to work were very limited and confined to arranging the date on which she was to return to work.

13.	At paragraph 147.5, the Tribunal found:

“It is correct that Ms Sawer did deal with some aspects of the management of the Claimant after stopping being her Line Manager.  In practice, however, the Claimant was off work for over a year for maternity leave and holiday; and the management concerned an exchange of a few emails concerning the Claimant’s return to work and her outstanding holiday entitlement.”  

14.	We should now set out in full the two paragraphs of which Mr Renton complains.  They are paragraphs 148 and 149 of the Tribunal decision and read as follows:

“148. Overall , therefore there were some relationships difficulties between the Claimant and Ms Sawer, for which Ms Sawer bears some of the responsibility, although the Claimant herself played a large contribution, as further set out in our findings of fact.  The Respondent also dealt with the Claimant’s complaints unacceptably slowly.  There was also a failure to consult with her during her maternity leave as to changes in the shift rotas, which would affect her on her return to work.  There were some aspects of our findings of fact which could indicate the existence of discrimination, although once the Respondent did deal with her complaints, overall she was fairly treated.  These are sufficient, at least for some of the complaints by the Claimant, to consider the Respondent’s explanations, and for the burden of proof to shift to them to do so.
149. A number of the Claimant’s complaints concern Ms Sawer.  We have given careful consideration, therefore, to whether, consciously or unconsciously, she may have discriminated against the Claimant on racial grounds.  She did have valid grounds for how she responded to the Claimant, as set out above.  Whilst some of the issues she dealt with could have been better handled by her, such as to the manner in which she stopped the Claimant’s sick pay, without prior warning, any management that was unsatisfactory does not necessarily show unlawful race or sex discrimination.  The Claimant also contributed to the difficulties she experienced, for example by her rude and unco-operative response when telephoned, as described in our findings of fact. We are satisfied that her treatment by Ms Sawer was in no sense whatsoever less favourable treatment on racial grounds” 

The legislation
15.	The law to be applied is not in dispute and is familiar to all employment practitioners.  In Igen Ltd v Wong [2005] ICR 931, a decision of the Court of Appeal which they themselves reaffirmed as correct in Madarassy v Nomura International plc [2007] ICR 867, the Court of Appeal approved with slight amendments guidance which this Tribunal had given in Barton v Investec Henderson Crosthwaite Securities Ltd [2003] ICR 1205.  The amended guidance is set out in 13 paragraphs in an annex to Igen v Wong.

16.	This 13-paragraph guidance is mentioned in the Employment Tribunal judgment in the present case at paragraph 34 but Mr Renton argues correctly, as we think, that the Tribunal did not adequately apply it.  We bear in mind and emphasise that, as both this Tribunal and the Court of Appeal have said, the Igen v Wong guidelines do not have to be applied mechanistically.  It is certainly not a 13-stage process.  The first paragraph of Igen v Wong should nevertheless be quoted in the present case:

“It is for the Claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the employer has committed an act of discrimination against the Claimant which is unlawful by [one of the relevant statutes].”

17.	If the Claimant does not do so, the claim fails, at least in the relevant respect.  If the Claimant does do so, then the burden of proof moves to the employer (see paragraphs 9 to 13).  It is unfortunate that, in paragraph 148 of the decision, the Employment Tribunal did not say which of the Claimant’s complaints satisfied what may be called the “first stage” of the Igen v Wong procedure so as to cause the burden of proof to shift.  All that we know is that some did, because they said so, but not all.

18.	This leads us on to paragraph 149. There, as Mr Renton has rightly pointed out, the Tribunal three times used the phrase “on racial grounds” and concluded with an emphatic and unequivocal finding in accordance with the wording approved in Igen v Wong and compatible with the burden of proof directive that the matters complained of were “in no sense whatsoever less favourable treatment on racial grounds”.  But sex discrimination is only mentioned once, in the middle sentence of the paragraph, where the use of the phrase “does not necessarily show unlawful race or sex discrimination” [our emphasis] indicates a departure from the proper approach in Igen v Wong.

19.	We have concluded that we must allow the appeal against the Employment Tribunal’s rejection of the claim that the stopping of the claim of sick pay in 2007 was an act of sex discrimination.  The Claimant had complained in her letter of 29 September 2007 that she felt harassed whilst heavily pregnant with multiple pregnancy related illness, this in the context of a complaint about having sick pay stopped.  The Employment Tribunal must, as we see it, have been satisfied that this allegation satisfied stage 1 of Igen v Wong; but they have not gone on to explain why they found the employers had successfully discharged the stage 2 burden.  

20.	We emphasise that we are not saying that this claim must succeed.  Mr Renton rightly accepts that the best he can do is to have this aspect of the case sent back for re-hearing, and that it what we shall order.  We shall come to the composition of the Tribunal at the end of this judgment.

21.	So far as the allegation that the stopping of sick pay also amounted to race discrimination, we take a different view.  The Claimant’s case on race discrimination, which it is said gets her past stage 1 of Igen v Wong, is that a fellow employee also of Afro-Caribbean ethnic origin, Ms Akarobwe, made three complaints to management about Ms Sawer, the Claimant made five and there is no evidence of any white employees having made such complaints.

22.	The closing submissions on behalf of the Claimant also mention that there was evidence of two black members of staff being rudely spoken to by Ms Sawer in the presence of the Claimant or Ms Akarobwe or both but, on this last point, without notes of evidence, we do not consider that we can attach any weight to that.  In any event, these are not facts from which, in our judgment, in the absence of adequate explanation, it could be inferred that the stopping of the Claimant’s sick pay could be based on her race, nor is the Respondent’s failure to monitor complaints and grievances by their staff.

23.	It is not the law as we see it that once two Afro-Caribbean employees have made an allegation, for example, of discourtesy against a manager, the Igen v Wong burden then shifts to the employer in respect of not only any allegation of discourtesy, rudeness or similar matters made against that manager by Afro-Caribbean staff but also in respect of any decision of any kind which that manager makes concerning them.  That is, we think, to paint with much too broad a brush under the first stage of Igen v Wong.

24.	So far as the claim of harassment is concerned, in the closing submissions before the Tribunal, the word “harassment” is simply added on as an alternative way of expressing legal criticism of the facts complained of.  It seems to us if the Employment Tribunal accepts that the stopping of sick pay was sex discrimination, the harassment allegation becomes academic.  It is simply a different way of expressing the same thing and we cannot see how the Tribunal could reject the claim of sex discrimination and yet find a claim of harassment proved. 

25.	Mr Renton mentioned an interesting issue as to whether requiring a pregnant employee to attend and wait in the crowded surgery waiting room of her general practitioner might amount to harassment as a matter of law.  That issue was not raised below, and we are not prepared to allow it to be raised now. 

26.	So we dismiss the appeal concerning the stopping of sick pay issue under both race discrimination and harassment but we allow it on sex discrimination.

27.	We turn to the return to work letters issue.  On this issue, in contrast with the stopping of sick pay issue, there is a threshold question of whether the Claimant suffered a detriment at all.  In his helpful skeleton argument, Mr Renton points out that the Tribunal were not directed to, and did not apply, the well-known test set out by the House of Lords in Shamoon v Chief Constable of the RUC [2003] ICR 337.  The question to be answered is, as Lord Hope of Craighead put it:

“Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment?”

28.	Mr Renton says that, insofar as the Tribunal determined that the receipt of the few emails could not be a detriment, it was wrong.  He argues that even one single email, if its contents are sufficiently unwelcome, can be a detriment.  

29.	Of course a single email can constitute a detriment, but it depends on what it says.  Mr Renton’s formulation “if its contents are sufficiently unwelcome” is not in accordance with the Shamoon test which does involve the reasonable worker and not simply the subjective impression of the Claimant.

30.	If this issue had stood alone, we would have attempted to resolve it ourselves. But since we are remitting the stopping of sick pay issue to the Tribunal, we have decided that we should also leave it to them to decide whether the sending of the email and letters constituted a detriment and then, if so, to apply Igen v Wong stage 1 and stage 2 in the usual way.  If this claim is upheld, it seems to us that compensation for it could, at best, be modest.

Conclusion
31.	Finally, we have to consider whether the claim should be remitted to the same or a differently constituted Tribunal.  Mr Renton has told us that Ms Small is dissatisfied with the performance of the previous Tribunal and would prefer a fresh Tribunal.  He accepts, however, that the test we have to apply is that laid down by this Appeal Tribunal in Sinclair Roche & Temperley v Heard & Fellows [2004] IRLR 763.  We are quite satisfied that the claim should be remitted to the same Tribunal as heard the case originally.  This is not a case where any partisanship or bias on the part of the Tribunal has been shown.  Far from it: as we have said, we consider that they dealt with the parties in a conspicuously fair and even-handed way. The two outstanding issues can best be described in Burton J’s phrase as “unfinished business”.  

32.	We would have reached that conclusion anyway; but it is reinforced by the fact that there is an outstanding issue of compensation concerning the complaint of failure to consult over shift patterns, which the Tribunal held, and there is also a new sixth claim by Ms Small against the Trust to be dealt with.  Counsel agreed that, whatever we decided on the composition of the Tribunal, one Tribunal should be asked to hear all the outstanding issues, that is to say the sixth claim, the compensation claim which is already in play on the Tribunal’s findings and the two issues which we are remitting to the Tribunal.  The stopping of sick pay issue on sex discrimination and the return to work letters issue also on sex discrimination will therefore be remitted to the same Tribunal as before, if, as we hope, they are available to hear the case.

33.	We note, finally, that in the last paragraph of their judgment, the Tribunal urged the parties to consider mediation.  They said:

“…problems still exist between the parties; and that some kind of healing process is required, with willingness on both parties needed to improve relationships that appear to be near, or at, breakdown.  We hope that the parties will reflect on this judgment, each accept some responsibility for the difficulties in working relationships that have occurred; and work together with a commitment to re-establishing good working relationships.”  

34.	We respectfully agree with those observations of the Employment Tribunal. 

35.	We are very grateful to both counsel for their helpful submissions.