Appeal No. UKEAT/0563/10/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 April 2011

Before
HIS HONOUR JUDGE McMULLEN QC
MR B BEYNON
MR P GAMMON MBE

LYCEE FRANCAIS CHARLES DE GAULLE	APPELLANT

MS M DELAMBRE	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MRS MARIE-CLAIRE SPARROW
(of Counsel)
Direct Access Scheme	
For the Respondent	MR PAUL LUCKHURST
(of Counsel)
Instructed by:
North Kensington Law Centre
74 Golborne Road
London 
W10 5PS	

SUMMARY
AGE DISCRIMINATION

Appeals against liability and remedy for age discrimination against a 34 year old woman by a French Lycee subject to English employment law having been dismissed by the EAT and the CA, only the recommendations made by the ET were live.  The ET in its discretion made permissible recommendations to correct the discriminatory culture and conduct of the Lycee’s leadership.

HIS HONOUR JUDGE McMULLEN QC

1.	This case is about the remedy for findings of unlawful age discrimination and victimisation for raising such matters.  It is the Judgment of the court, to which all members appointed by statute for their diverse specialist experience have contributed.  We will refer to the parties as the Claimant and the Respondent.

Introduction
2.	It is an appeal by the Respondent in those proceedings against a Judgment of an Employment Tribunal chaired by Employment Judge Stewart, sitting at London (Central), for reasons given on 10 January 2010.  The Remedy Judgment, as we will call it, followed a hearing on liability.  The parties were represented at the liability hearing, which took place on 19 May 2009 and for which reasons were entered in the register on 10 November 2009, by a solicitor on behalf of the Claimant and by Mr Nebas, the Bursar of the Respondent School.  At the remedy hearing the school was represented by Mrs Sparrow of counsel, as she appears today; the Claimant now has the advantage to be represented by Mr Luckhurst of counsel.

3.	The Tribunal upheld the Claimant’s claims that she was subjected to unlawful discrimination on the ground of age contrary to the Employment Equality Age Regulations 2006 and, further, that she had been victimised, contrary to regulation 4 of those regulations, for having done a protected act.  The Respondent appealed.

4.	Throughout these proceedings there are two references made by Mr Luckhurst in his written and oral submissions which cast a profound chill.  First is the Judgment of Smith LJ dismissing the Respondent’s appeals and, second, is the Judgment of Mummery LJ telling the EAT how narrow is its lawful ability to intervene in issues of discretion by Employment Tribunals in Fuller v London Borough of Brent [2011] EWCA Civ 267, to which we will return.

The issues
5.	The issues in the case have been very narrowly defined for us.  Appeals against all of the Liability Judgment and most of the Remedy Judgment were dismissed by the EAT and by the Court of Appeal, but one aspect was left open which was whether there was a reasonable prospect of success in an argument that the recommendations accompanying the Remedy Judgment were wrongly made.  There is now no challenge to the finding that the remedy for the unlawful discrimination and victimisation would be £48,709.79, but what is at stake is the second part of the Remedy Judgment dealing with a recommendation.

6.	Regulation 38 gives a discretion to a Tribunal to make a declaration, an award and a recommendation.  It provides as follows:

“38(1) Where an employment tribunal finds that a complaint presented to it  under regulation 36 is well‑founded, the tribunal shall make such of the following as it considers just and equitable -
[…]
(c) a recommendation that the respondent take within a specified period action appearing to the tribunal to be practicable for the purpose of obviating or reducing the adverse effect on the complainant of any act of discrimination or harassment to which the complaint relates.”

7.	The issues before us as advanced by Mrs Sparrow are whether the Tribunal erred in law in making the three recommendations which it did.

The facts
8.	The facts can be briefly stated for now the facts contained in the Liability and the Remedy Judgments are beyond dispute.  The Respondent is a large French school located in London and, at the time, had about 4,000 pupils and 450 employees divided into different sections according to the ages of its pupils, between 5 and 18.  The Headmaster since 2007 is Mr Vasseur and there is a senior management team and a governing body, as it is translated from the French Commission Paritaire, which is responsible for the decisions in this case.

9.	Put shortly, the Claimant, who is French and 34, came to England in 1999 and took a position at the school in 2001.  She applied in 2008 for a new position.  She was, at the time, a part‑time dinner lady, as she would be known in an English school, and sought a promotion to a supervisory position in the senior part of the school.  This she was refused on grounds of age and the Tribunal held that such was unlawful, contrary to the 2006 Regulations.

10.	When she sought to raise complaints and grievances about the matter she was victimised by Mr Vasseur and other members of the leadership of the school, including criticisms of her conduct.  This led to the Tribunal making financial awards and giving Judgments in both the Liability and Remedy parts of its Judgment in strong condemnatory terms.  Confining ourselves to the issue on appeal, which is the recommendations, the way was paved for them to be made by the findings of the Tribunal, which were as follow:

“14. Turning now to the recommendations which the Tribunal has made: not only has the Respondent displayed a quite staggering, and the Tribunal found wilful, ignorance of UK Employment Law, but also until very late in the day a high handed and arrogant refusal to accept that every employer in the UK, of no matter what nationality, is subject to the Laws of England.
15. The Tribunal did not accept that being French was a mitigating factor, as advanced by the Respondent’s representative, nor could it see as yet any real evidence of meaningful change in this general attitude in the Respondent’s organisation, save for the appointment of the Claimant to her new post, a few days after the Full Merits Hearing in this Tribunal.
16. What is required in the Respondent’s organisation, in the Tribunal’s view, is a complete change of culture, beginning at the top and cascading down through the organisation to every level, in relation to its understanding of its obligations as an employer and in particular in the fields of discrimination law and the proper conduct of grievance and disciplinary procedures.  The Tribunal was not persuaded that this process has more than just begun, despite Monsieur Nebas’ protestations during this Remedy Hearing, and the Tribunal has, therefore, made the recommendations set out in this Judgment with the intention of assisting the Respondent in making the necessary transition to compliance with its obligations as an employer under UK Employment Law and thereby obviating or reducing the adverse effects on the Claimant of the acts of discrimination which have been the subject of these proceedings.”

11.	Those reasons are made in the contest of several days’ of evidence in which the set up at the school, its constitution and its day‑to‑day organisation were fully explained.  The recommendations which formed part of the Judgment were these:

“2. ….
(a) That both the Tribunal’s Full Merits Hearing and Remedy Judgments be circulated to each member of the Respondent’s Governing Board and to each member of the senior management team of the Respondent, to be read and digested by them, by the end of March 2010.
(b) That the Respondent secure the services of an appropriately qualified HR professional who will conduct a review of their existing equality, disciplinary, grievance and recruitment policies and procedures and amend or redraft the same as necessary, so as to ensure compliance with United Kingdom Employment Law.  This HR adviser will have had the opportunity of studying the Tribunal’s Full Merits and Remedies Judgments before going about their task, which should be completed by the end of June 2010.
(c) That the Respondent undertake a programme of formal equality and diversity training, including an recruitment and selection procedures, beginning at Board of Governors and highest management levels and cascading down through the entire organisation; this training programme to begin at the start of the academic year in September 2010 and to be completed within six months of that date.”

We will call these the first, second and third recommendations.

12.	 The Claimant continues to be employed by the school.  A fact we consider to be important in looking at the criticisms made by the school of the recommendations.

The Respondent’s case
13.	The Respondent contends first that the first recommendation should not have been made because there is no Board of Governors and that this illustrates the poor understanding by the Employment Tribunal of the setup of the school and its relationship to the French state through an adviser to the cultural attaché of the French Embassy.  In short, the recommendation is an error because there is no Board of Governors.  Further, it is too wide.

14.	The second recommendation is criticised because the recruitment of an HR professional is to deal with matters outside the remit of the Employment Tribunal, for example, in relation to disciplinary matters, and that this order is made too widely.  Nor does it bite specifically on the Claimant for, as Mrs Sparrow rightly points out, the language of regulation 38(1)(c) deals with the obviation of the adverse effect of the discrimination on the Claimant.  In short, she contends in its generality this recommendation should be struck down.

15.	As to the third recommendation, the language is too vague using terms such as ‘cascading’ and it is onerous in that diversity training must be provided.  The same criticism is made of the depiction of the leadership as a Board of Governors and at the same time, perhaps paradoxically, its language is not specific enough to define the action to be required.

16.	It is contended that the recommendations insofar as they require presentation of the material in the Judgments to the leadership of the school is wrong since some of them no longer exist.  By reference to authorities, Mrs Sparrow contends that the recommendations must be specific to the Claimant or that she must be sufficiently identified within a general recommendation.  It is wrong for these recommendations to be so wide and to go beyond the scope of alleviating the adverse effect to the Claimant.

The Claimant’s case
17.	On behalf of the Claimant, Mr Luckhurst contends that these criticisms of lack of understanding by the Tribunal of the setup of the school are unfair.  The Tribunal set out its clear understanding, having heard evidence from the leading actors in this drama, as to what relationships existed and how the school was run.

18.	The Claimant made specific reference in her claim form to a recommendation as an appropriate remedy.  It is an issue defined by the Tribunal in its CMD and the approach to the case was shaped by the further particulars sought of the Respondent and its answers, including the translation of the word ‘Commission Paritaire’ which is the body which made the decisions in this case, and also the senior management team.  As to the three specific recommendations, it is contended that there could be no doubt as to who the Board of Governors is.  It is the translation of Commission Paritaire and that is clear from the minutes of the meetings where the relevant acts of discrimination took place.

19.	The second recommendation is apt since it includes within its remit the circumstances of the Claimant.  Any recommendation about equal opportunities is bound to be general and, since the Claimant is still at the school, she is within its scope.  If she criticises the process for raising a grievance or for being promoted to supervisor, it is natural that the process should be a general application.  Mr Luckhurst contends that the fact that some teachers are appointed on four‑year contracts from France is a red herring since, in this case, there may be entitlement to the protection of English employment law in any given circumstance; that is not an issue at the moment.

20.	As to the third recommendation, the training which is sought is simple; cascading is an ordinary word.  Those who are affected by the recommendation know who they are.  This is a cultural problem within a tightly knit community of those who work for a French school in the heart of London and, thus, it is important that the culture be changed.

The legal principles
21.	The legal principles in this case are not in dispute.  A recommendation under regulation 38 gives a Tribunal extremely wide discretion (see Chief Constable of West Yorkshire Police v Vento [2002] IRLR 177 at 49.1 per Wall J on behalf of the EAT).

22.	The requirement of practicability is met when the Tribunal focuses upon what is practicable in terms of its effect on the complainant (see Fasuyi v London Borough of Greenwich UKEAT/1078/99 at paragraph 24).

23.	The practicability of a recommendation has to be also seen from the perspective of an employer.  Only one which is completely impracticable would constitute an error of law (see Leeds Rhinos Rugby Club v Sterling UKEAT/0267/01 at 6.1).

24.	A recommendation which is generally ameliorative, that is applying across the board, may be justified if the effect of it will obviate or reduce the adverse effect of discrimination on the complainant, who is a person within the general application (see Fasuyi at paragraph 24).

25.	Tribunals have a wide range of discretion in the recommendations they make so that, for example, a letter being sent to all parents of a school was approved, subject to some minor drafting on appeal, in The Governing Body of St Andrews Catholic Primary School v Blundell, UKEAT/0330/09/, and good practice will require senior managers within an employer which has been found guilty of discrimination to face up to findings made by reference to a Judgment in an Employment Tribunal (see Vento at paragraph 4.49).  A requirement to undertake formal equality and diversity training may be appropriate (see London Borough of Southwark v Ayton 18 September 2003 unreported EAT at paragraphs 26 to 28).

26.	To those directions in relation to recommendations can be added issues on appeal and here Mr Luckhurst correctly reminds this division of the EAT of Mummery’s LJ words in Fuller v London Borough of Brent at paragraph 30:

“The reading of an ET decision must not, however, be so fussy that it produced pernickety critiques.  Over‑analysis of the reasoning process; being hypercritical of the way in which the decision is written; focussing too much on particular passages or turns of phrase to the neglect of the decision read in the round: those are all appellate weaknesses to avoid.”

27.	The injunction against interference on the grounds of perversity is also made in Bowater v Northwest London Hospitals NHS Trust [2011] IRLR 331.  In matters of discretion it will be rare for there to be intervention by the EAT and only if the discretion has been exercised wholly wrongly, taking account of an irrelevant factor, or failing to take account of a relevant one (see the explanation of these matters given by the Court of Appeal in CIBC v Beck [2009] IRLR 740 and the cases cited by Wall LJ.

Discussion and conclusions
28.	At the outset of this Judgment we noted the reference made by Mr Luckhurst to what the Court of Appeal had said about these cases.  Permission to appeal was refused against the Judgment of HHJ Peter Clark under rule 3(10), which itself followed the opinion given by Underhill P, was that the whole case was totally without merit and there was substantial evidence for the findings which the Tribunal had made.

29.	The point about these chill words of Smith LJ which, as she said, means there is nothing more to be said, is that the findings of fact by the Employment Tribunal are now cast in stone.  Thus, the findings on Liability and on Remedy leave only the narrow window opened by Judge Peter Clark which is the subject of this appeal.  That is whether the recommendations have gone too far.

30.	As to that, we respectfully adopt the opinion given by Underhill P in his rule 3(7) opinion that these recommendations are perfectly appropriate.  The President said:

“The Appellant has taken no account of the points which I made more fully about the first Notice of Appeal and has simply repeated the same grounds in slightly different form.  Briefly:
[…]
7. As to Head E, I see nothing even arguably “impracticable” or “excessive” in the terms of the recommendations.  The OFSTED report is not concerned with the Appellant’s employment practises.  The comments made by the Tribunal were not disproportionate to the conduct which it found.”

31.	First, our approach must be guided by Mummery’s LJ words in Fuller.  This is a decision based on the exercise of discretion.  Regulation 38 is shaped by two matters of discretion.  The first in the introductory part of regulation 38(1) is that it shall make a recommendation if it considers it just and equitable.  The second is in the recommendation itself which is that it may require an employer to take action which appears to the Tribunal to be practicable.  Those matters of evaluation and assessment for an Employment Tribunal and not on appeal.

32.	In respect to the first recommendation the major criticism is that there is no Board of Governors.  This has no merit whatever.  Throughout the hearing the translation of the French body known as the Commission Paritaire was the Board of Governors.  The minutes of the meeting where the discrimination occurred were placed before the Employment Tribunal.  It is that and the people attending it which constituted the Governing Board.

33.	Similarly, there is reference to the senior management team and to the manipulation by Mr Vasseur of the proceedings.  This, as a specific allegation, this goes nowhere.  The general allegation that it is difficult to see who is constituted within the Governing Board and the senior management team is a contention with no substance.  It is plain that a Judgment of an Employment Tribunal, making findings of unlawful discrimination against an employing body, should be made known to those who have made the decision.  True it is that when the horse is taken to water it cannot be required to drink, but we do not read the words “to be read and digested” in the recommendation as capable of enforcement.  The point is the Lycee has been condemned in strong terms for its acts of discrimination and that should be made known to the people who lead it.

34.	As to the second recommendation, which is to secure HR professionals, it is contended that there are within here procedures which are not canvassed within the Judgment.  Focus has been directed upon the disciplinary policies.  Mrs Sparrow contends this is nothing to do with the case.  This case was about age equality.  We disagree.  The findings by the Tribunal draw attention to the action of Mr Vasseur in raising, what the Tribunal and we hold to be at a completely inappropriate stage, matters of misconduct against the Claimant.  That is wrong and an HR professional would be able to give advice to Mr Vasseur about the way in which disciplinary action for matters of minor misconduct should be conducted.

35.	Equality is at the heart of this.  The Tribunal made ample findings about the lack of understanding and equality and the failure to handle grievances and recruitment.  It is part of the recruitment policy that the Claimant should have an opportunity equally to compete for promotion and we see no difficulty in recommending, as the Tribunal did, what to do.

36.	There are ample findings by the Tribunal of a total failure, indeed refusal, to follow UK employment law by the staff at this school.  It is not for us to judge but for an Employment Tribunal, but here there was evidence of the complete failure to understand that the employees of the school, certainly this employee recruited in England, is entitled to the benefit of our laws.

37.	Part of the criticism on appeal of this recommendation is the fact that it is not capable of ameliorating the adverse effect on the Claimant.  As to that, we accept Mr Luckhurst’s submission that there is a difference between those employees who are dismissed and those who are not.  Bayoomi v British Railways Board [1981] IRLR 431 relied on by Mrs Sparrow is not of assistance, for this is to do with a person who has been dismissed.  We see a world of difference between making a recommendation that will affect a person with continuing employment from that which would affect only those who are left in place after she has gone.

38.	In any event, what is important in this case is the fact that the Claimant was victimised unlawfully by the Respondent.  Having done a protected act, she continues to be within the scope of the anti‑victimisation provisions and it is important that the adverse effect which the Tribunal has found to have occurred as a result of her doing a protected act be not revisited upon her.  Of course, when policies are redrafted, they will affect all within scope and this includes the Claimant.  She is entitled to know that there will, as a result of these recommendations, be put in place policies which enable her to raise without fear an application for promotion and grievances which may occur during the course of her career and to be treated correctly for matters of misconduct put against her.

39.	Turning then to the third recommendation, this is that there should be a program of formal equality and diversity training.  Here the particular expertise of the lay members of this Appeal Tribunal is of great assistance.  Indeed, all of us who work in large organisations are familiar with equality and diversity training.  It does not take long; this is not an onerous obligation and it needs to start at the top and go down.  There is no difficulty with it starting with the Board of Governors and highest management and cascading down through the entire organisation.  Everybody working in a substantial organisation needs to understand the effect of diversity and a broad appreciation of how diversity is protected in this country and, we may say, in France too, covered, as it is, by our common obligations under the European Convention of Human Rights and the Treaty of European Union.  We see no error of law.

40.	At certain stages of Mrs Sparrow’s argument there was some force in her contention that some of these matters may have been too wide and she rightly shows us that the EAT has been prepared on appeal to redraft recommendations.  We resist that.  We see nothing wrong with the Tribunal making the recommendations it did based upon the evidence which it heard and any disagreement we may have would involve us tinkering impermissibly in the proper province of the Employment Tribunal.

41.	This appeal is dismissed.