Appeal No. UKEATS/0026/09/BI
UKEATS/0027/09/BI

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HF

	At the Tribunal
	On 3 December 2009

Before

THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)
(SITTING ALONE)

MR A MAJUMDAR	APPELLANT

FIRST SCOTRAIL LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR J KOMOROWSKI 
(of Counsel)
Instructed by:
Mr S Cunningham 
Ethnic Minorities Law Centre
41 St Vincent Place 
Glasgow 
G1 2ER	
For the Respondent	MS M GIBSON
(Solicitor) 
Paull and Williamsons Solicitors 
Union Plaza
7 Union Wynd
Aberdeen  
AB10 1DQ	

SUMMARY
PRACTICE & PROCEDURE – STRIKING-OUT/DISMISSAL

The Judge was wrong to strike out the Appellant’s victimisation claim on a basis which the parties had agreed did not fall for determination.

THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)

1.	The Claimant, who is the appellant before me, started work for the Respondent, First Scotrail Ltd, in November 1991.  He is of Indian ethnic origin.  In December 1997, while he was working as an announcer at Yoker, he was criticised by his then line manager, Mr O’Neill, about the quality of his work.  The consequent problem lasted for some weeks before Mr O’Neill was moved elsewhere.  The Claimant has asserted that Mr O’Neill’s conduct towards him was aggressive and bullying and particularly that it was motivated by his ethnic origin.

2.	In early 2007, problems developed, or it may be became worse, in the Claimant’s personal life, and also with his mental health, and he was off sick from some date early in that year.  Although he was off work he kept in touch with his colleagues.  At the end of May he visited one of the Respondent’s sites and learned that Mr O’Neill had recently become the manager there and would be his manager when he was fit to return to work.  On that occasion and over the next day or two, he made disparaging comments about Mr O’Neill to colleagues.  On 1 June, he wrote to a team manager, Colette McCluskey, in the following terms:
“Hi Colette,
You may find it rather odd that I am writing to you, in fact I feel rather odd in doing so. But I consider this issue to be of the utmost importance.
The new retail manager for Glasgow Central, Joe O’Neill is a person I have found to be rather unprofessional in attitude.  He is a bully by nature and has a habit of talking about his staff behind their backs.  Please do not feel offended by my comments about this person, because my remarks are based on personal experiences with this man, who has been the main cause of my emotional problems.  Other incidents merely snowballed my stress over the years.
I am writing this letter as a friend (and I hope that you too, regard me as a friend), just to ask you to be careful with this person, with regards to how you do your job with this back biter and bully.
I deem Joe O’Neill to be a thoroughly nasty individual, who I personally categorise as a racist, especially after his antics with me in Yoker which has left me with a mental scar.
This letter is for your attention only and on this matter I would further that you kept the letter confidential.
I will be discussing my past experience with Joe O’Neill in greater depth with a higher office.
My letter is for your information only on this occasion, just to let you know to be careful of Joe O’Neill, and don’t let him get to you.  (And act normally when you see him!!)
Take care.”

3.	On the same day, the Claimant attended a meeting with Liz Findlay of the Respondent’s Human Resources department, and on that occasion handed her a letter in the following terms:
“My letter is in regard to Mr Joe O’Neill recently appointed as retail services manager in Glasgow Central by First Scotrail.
Mr Joe O’Neill is a cause for my ill health due to an incident at Yorker signalling centre during the month of December in 1997.
I had been told my Mr O’Neill that he was not satisfied by my work and that I was ‘slow’ in doing my job.  He said that he wanted to assess me, and whilst he ‘assessed’ me, he shoved his face at me while I was making an announcement during a disruption, causing me to stutter.  Mr O’Neill also thereafter to have me sacked due to my announcement and told me that it would go on my PEARLS record.
The issue has never been resolved and still mentally affects me.  I was never given advice by my colleagues on how to handle the matter created by Mr O’Neill, as I had little experience on how to handle such intimidation by a supervisor, as was at the time.
Mr O’Neill’s antics with me caused me humiliation and anxiety. 
For years I have relived the incident, time and time again, and had seeked counselling, but had been told that, I would just have to live with the problem.
Certain incidents at Glasgow central signalling centre did not help me try and forget about my experiences at Yoker signalling centre.  The matter which I find most infuriating about Yoker is that I was told by an official with the community relations council, that the face shoving incident by Joe O’Neill can be classified as attempted assault, after I had revealed the matter to the official, a couple of years after the incident. 
I regard Joe O’Neill to be a racist, and have not had reason to believe otherwise.” 

4.	It is common ground that the disparaging remarks made orally to colleagues at this time were in substantially similar terms, save that the Claimant does not admit referring to Mr O’Neill on those occasions as a “Scotrail bully” or to his “stabbing people in the back”.

5.	Those events led to an investigation and, in due course, to formal disciplinary charges.  Following a hearing on 26 October 2007, the Claimant was summarily dismissed.  The formal reasons for his dismissal are noted as follows: 
“•  You deemed Joe O’Neill, Retail Manager of being a racist.
•  You advised fellow First ScotRail staff to watch their backs as Joe O’Neill would stab them in the back.
•  You advised staff that Joe O’Neill was a back biter and bully.
•  You advised staff that Joe O’Neill was a vicious ScotRail bully.”
He appealed against his dismissal but the decision was upheld.  In the letter communicating the result of the appeal the reason for his dismissal was recited in identical terms.
6.	The Claimant then initiated the present proceedings against the Respondent.  He claimed that his dismissal both was unfair and constituted victimisation within the meaning of section 2 of the Race Relations Act 1976 and contrary to section 4. I should set out the terms of section 2. So far as material they are as follows:
“(1)	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; or
(b)	given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act; or
(c)	otherwise done anything or by reference to this Act in relation to the discriminator or any other person; or
(d)	alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act,
or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.
(2)	Subsection (1) does not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith.” 

7.	The Claimant’s case is that the allegations which he had made against Mr O’Neill fell within the terms of section 2(1)(d) and were thus, in the phrase normally used, a protected act and that his dismissal was, at least to a significant extent, by reason of that act.

8.	The Respondent denies that any act done by the Claimant falls within the terms of subsection (1)(d); but it in any event contends that, even if they do, any such allegation was not made in good faith, and further that the Claimant’s dismissal was not to any significant extent by reason of his having made any such allegations as opposed to his having made abusive observations about a manager.

9.	The present appeal is not concerned with the unfair dismissal claim, which is proceeding to a hearing in the normal way.  However, as regards the victimisation claim, the Respondent sought to strike out that claim on the basis that the things said and written by the Claimant, which I will refer to compendiously as the “impugned communications”, were incapable in law of falling within section 2(1)(d).  The application was made under rule 18(7)(b) of the Employment Tribunal Rules of Procedure.  The application came on before Employment Judge MacMillan in Glasgow on 4 August 2008 but was adjourned.  The Judge was concerned about whether the issue could truly be dealt with as one of law and without evidence, but the parties believed that it could be dealt with on the basis of agreed facts, which the Judge accordingly directed them to provide.  The matter was restored before him on 23 February 2009 - the delay being principally due to the fact that the Judge had unfortunately been unwell.  An agreed statement of facts was lodged.  It is substantially in the terms of the facts as I have already recited them.  It is common ground that the parties were agreed that the application did not raise any issue under section 2(2), which I will refer to as the “good faith provision” and that any issues relating to that would require to be the subject of evidence at a hearing.

10.	The Judge allowed the application and struck out the claim.  His Judgment and written Reasons were sent to the parties on 11 March 2009.  The Claimant sought a review of that decision but the application was refused by letter dated 9 April.

11.	What are formally before me are appeals against both the original decision of the Judge and his refusal of a review. However, the issues in both appeals are identical and for practical purposes they can be treated as a single appeal.

12.	Some time after the original notice of appeal was lodged, the Claimant sought permission to amend.  That application was resisted and was in due course refused by Lady Smith, her decision being communicated by a letter dated 3 November 2009.  I must accordingly deal with the appeal strictly on the basis of the notice of appeal as originally pleaded.  The grounds in that notice are in the following terms, so far as material:
“a) The Reasons at paragraph 25 of the judgment stated there was no reasonable prospect of the claimant demonstrating that the alleged protected acts were committed in ‘good faith’.  The Employment Judge acted in a procedurally improper manner in considering the question of ‘good faith’.  It was conceded by Ms Margaret Gibson for the respondent at the Pre-Hearing Review that the question of ‘good faith’ should not be determined at Pre-Hearing Review.  She conceded it was a matter to be determined, if necessary, at a Hearing.  The Employment Judge was bound to accept that concession.
b) Esto the Employment Judge was not bound to accept that concession, the Employment Judge erred by not inviting submissions from counsel for the claimant regarding the prospects of demonstrating ‘good faith’.  He was required by the principles of natural justice to make such an invitation if he did not wish to accept the concession.  Had counsel been invited, the following submissions would have been made.  The burden of establishing that the allegation was false and not made in good faith in terms of the Race Relations Act 1976, section 2(2) falls upon the respondent.  It is not possible to assess the prospects of the claimant being accepted as a credible and reliable witness on this issue in the absence of parole evidence.  Those submissions would have been well-founded. 
c) There being no other independent reasons advanced by the Employment Judge for striking out the claim in terms of Race Relations Act 1976, section 2(1)(d), that claim should not have been stuck out.”

13.	The Claimant has been represented before me by Mr Julius Komorowski of counsel and the Respondent by Ms Margaret Gibson of Paull and Williamsons, both of whom appeared below.  I am grateful to both of them for their attractive and succinct submissions.

14.	The Judge’s reasoning is to be found at paragraphs 22 to 28 of the Reasons, which are in the following terms:
“22. The primary question for the tribunal was – were the remarks and the letter protected acts? To claim protection, there would have to be an allegation of action or conduct on the part of Mr O’Neill which, if committed, would be in breach of the Race Relations Act.  On the agreed facts, there is clearly no allegation of any specific allegation of racist action or conduct.  Even taking the originating application at its best, it is hard to see anything in the alleged behaviour of Mr O’Neill which has any racial overtones.  The incident appears to be simply a performance review, which was resolved to Mr O’Neill’s satisfaction.  The claimant seems to have taken offence at the way in which Mr O’Neill carried out this review, but it is important to note that the claimant himself observed ‘I called him back to ask if they (the announcements) were okay.  He said they were’.
 23. Later in the originating application, the claimant admits to having problems at work several years later, but also mentions gambling problems in the context of not returning to work.  Only in January of 2007 did the claimant raise the O’Neill incident with the respondents, nearly 10 years after the event. Prior to that, there had been no mention of the O’Neill incident to anyone.
24. The Tribunal is well aware that racist behaviour is not necessarily explicit and it can be contrary to the terms of the legislation without having any outward signs of being so.  However, in this case the claim only alleges that Mr O’Neill singled him out for discipline.  In the claimants view this was racist.  He does not explain how he arrived at this conclusion.  There was nothing in the surrounding facts and circumstances from which anything contrary to the terms of the Act could be inferred.  On the other hand, we did not believe that the term ‘racist’ was something separate and distinct from the other labels of Mr O’Neill by the claimant.  Clearly, the labels were associated in time and place, at least in mind of the claimant. 
25. The difficulty is that the letter of 1st June 2007, whilst it forms the basis of the dismissal, refers back to an incident nearly 10 years previously.  To determine whether or not the letter was written in good faith would require an investigation of these events.  These are so far removed in time that it would be impossible to rely upon the accuracy of the recollection of witnesses over that period, including the recollections of the claimant.  We felt that to establish any prospect of success, the claimant has to be able to present some linkage between the alleged actions of Mr O’Neill, and the remarks, thus placing them in a racial context.  The obligation to establish that linkage remains with the claimant.  There is nothing in the originating application, or the agreed statement of facts, which provides that linkage in our view, nor is it likely to emerge in any credible or reliable form at any subsequent hearing.
26. The letter of 1st June is not therefore a protected act within the meaning of section 2(1)(d).
27. We also believe it is stretching the terms of the subsection too far to regard the mere use of the term ‘racist’ to imply act done ‘under or by reference to the Race Relations Act’.  It is perfectly possible to express what might be regarded as racist thoughts without breaching the terms of the Act.  The claimant in this case is, in our view, accusing Mr O’Neill of being a racist, not of carrying out any racist act.
28. There is therefore no protected act alleged and the claimant has not made out a prima facie case of victimisation as a result.  Accordingly, in our view there is no reasonable prospect of success, since that is the sole remaining ground of this application.  The application accordingly is refused.”

15.	I should deal by way of preliminary with paragraph 27.  This, it seems clear from the language, addresses the question of whether the impugned communications might fall within the terms of section 2 (1) (c).  The Judge had earlier, at paragraph 16 of the Reasons, identified that as “a secondary argument”, but Mr Komorowski disavows any such argument and has made it clear that his case is entirely on the basis of section 2(1)(d). In those circumstances I need not trouble to investigate how the apparent misunderstanding of the nature of the case may have arisen.  In any event, the question of section 2(1)(c) simply does not arise.

16.	I turn, therefore, to the case under section 2(1)(d), which is addressed at paragraphs 22 to 25.  As Mr Komorowski submitted and Ms Gibson candidly conceded, the reasoning in those paragraphs is not entirely easy to follow, but it seems to me that it can be analysed as follows. 

17.	The essential point which the Judge is concerned to establish, and on which he eventually bases his decision, is that there was in his view no reasonable prospect of the Claimant establishing that the behaviour by Mr O’Neill of which he complained in the impugned communications was racially motivated.  He reaches that conclusion in two stages.  First, he points out, in paragraph 22, that the acts complained of are not overtly racial; and secondly, at paragraphs 24 to 25, he concludes that there is no reasonable prospect of the Claimant establishing that the acts in question were nevertheless racially motivated.  

18.	The obvious problem with that reasoning is that, on the face of it, the Claimant does not have to establish that Mr O’Neill’s behaviour was racially motivated.  He only has to establish that in the impugned communications he had alleged that it was.  The allegations may have been entirely wrong, but as long as they were made in good faith the making of them was still a protected act.  But the Judge believed that it was necessary, as he put it in his concluding paragraph, paragraph 25:
“to present some linkage between the alleged actions of Mr O’Neill, and the remarks, thus placing them in a racial context.”

I find this hard to understand.  In one sense the linkage between the remarks and Mr O’Neill’s alleged actions is obvious; the latter are the subject of the former.  I at one point wondered whether the Judge meant to make the point that although the letters (or at least the letter to Liz Findlay) allege various specific detrimental acts or less favourable treatment they do not in terms say that the acts were racially motivated.  There is in both letters an explicit allegation of racism, but it is general and not specifically attached to the conduct described elsewhere in the letter.  However, I do not think that that can be what the Judge meant, because it would make no sense in the context of the earlier discussion of the difficulties of establishing what actually happened ten years previously.  It is in any event debatable how good a point it would really be.

19.	The inescapable conclusion seems to me to be that the linkage which the Judge thought was necessary, and which the Claimant would not be able to prove, was for the purpose of establishing that his allegation were made in good faith.  The Judge’s thinking appears to have been something like: “Since there is no prospect of your establishing that Mr O’Neill’s conduct was racially motivated, you cannot really have believed that it was the case”.  That reading of the Reasons may be a little surprising given that the parties are agreed that the hearing proceeded expressly on the basis that no issue as to good faith fell for determination: it may, however, be that the long interval between the two hearings had led the Judge to overlook this point.  But in other respects it accords with the way the Judge expressed himself. At paragraph 25 he expressly refers to the need “to determine whether or not the letter was written in good faith”; and there are observations elsewhere, particularly perhaps in paragraph 23, which appear to be directed to the same question.

20.	It seems to me, therefore, that the only way to make sense of the Judge’s reasoning is to conclude that he believed that the Claimant would be unable to establish that he had acted in good faith.  Since that was not a matter which was before him for decision, his decision cannot stand.  That reasoning corresponds to the points advanced in the notice of appeal.

21.	The conclusion is that this appeal must be allowed and the issue of victimisation will no doubt have to be determined at the same hearing as the unfair dismissal issue.