Appeal Nos. UKEAT/0296/11/ZT 
UKEAT/0297/11/ZT

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX

		At the Tribunal
		On 9 November 2011

Before
HIS HONOUR JUDGE McMULLEN QC
(SITTING ALONE)

MRS H PUROHIT	APPELLANT

HOSPIRA UK LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR B PUROHIT
(Representative)
Surush Legal Services
29 Minehead Road
Harrow
Middlesex
HA2 9DW	
For the Respondent
	MR N DE MARCO
(of Counsel)
Instructed by:
Squire Sanders Hammonds LLP Solicitors
7 Devonshire Square
Cutlers Gardens
London
EC2M 4YH	

SUMMARY
PRACTICE AND PROCEDURE
Striking-out/dismissal
Costs

It was open to the Employment Judge to strike out part of the Claimant’s claim, the remainder being later dismissed at a full hearing. The Employment Judge was entitled to find that the Claimant jumped the gun in bringing her claim that the Respondent had not promptly investigated her complaint, and to award costs relating to that part of the claim. Barnsley Metropolitan Borough Council v Yerrakalva [2011] EWCA Civ 1255, Dean & Dean [2-11] EWCA Civ 1331 and Arrowsmith [2011] EWCA Civ 797 applied.
HIS HONOUR JUDGE McMULLEN QC

1.	This case is about the striking out of claims by an Employment Judge and an award of costs.  I will refer to the parties as the Claimant and the Respondent.

Procedural introduction
2.	I will be brief in my account of the proceedings, since there is an extant Judgment at a rule 3(10) hearing on 29 June 2011, at which I allowed three points to be argued.  That followed a Judgment I gave on behalf of the EAT in a preliminary hearing that day (UKEAT/0229/11).  The sequence may seem a little odd, since today’s appeals are in relation to interim decisions made by Employment Judge Ryan on 27 September 2010, ahead of and shaping the eight‑day hearing which was then conducted before Employment Judge Bedeau and members in 2011; that latter case was determined at the preliminary hearing.  All of the grounds advanced on behalf of the Claimant were dismissed, and permission to appeal was refused, by the Court of Appeal, Elias LJ making it clear that the Judgment of Judge Bedeau and members was correct, the appeal from it had no merit whatsoever, and permission to take the matter to an oral hearing in the Court of Appeal was refused.

3.	I understand that there are other proceedings on foot in respect of the Claimant, and so I will say little about them. There are appeal proceedings in relation to her husband, Mr Purohit, which have been dismissed by an Employment Tribunal and have no prospect of success on appeal, but Mr Purohit is awaiting a hearing under rule 3(10).  In those proceedings his claims against the same Respondent were dismissed, and he was ordered to pay £10,000 in costs.  So I incorporate in this Judgment the Judgment I gave in UKEAT/0229/11 and the rule 3(10) Judgment I gave in this case.

Grounds of appeal
4.	There are three short points, and I will deal with the arguments about them at the same time as I give my conclusions.  

Investigation and the costs order
5.	The first issue relates to the Claimant’s case that the Respondent discriminated against her on the grounds of race (she is Indian) in conducting an investigation into an offensive text sent to her.  The Judge decided that the Claimant had jumped the gun.  The offensive text was sent on 15 May 2010; 15 minutes later, there was a retraction indicating that the phone from which it was sent, Mr Browne’s, had been taken over by one of his friends in the dressing room at his cricket club, and later that Saturday night a complaint was made to a manager Sergio Gonzalez.  On 17 May there was a meeting, followed by an exchange of email between those who were present.  This was said to be an informal meeting. What Mr Gonzalez wanted was, as he put it, the Claimant’s assistance to help the Respondent address the issues that were set out.  It is plain the Claimant was upset by the text.  It is recorded that she was not intending to raise a formal grievance against Mr Browne, as the relationship between the two of them had always been fine and this is the first time that something had happened, that the Claimant was happy for the Respondent to deal with the issue via the formal disciplinary process against him, and that the Claimant would co‑operate if required by the disciplinary officer and that she would be content to keep working as usual.

6.	This email was the second sent by Mr Gonzalez.  The Claimant responded with her own account, indicating that it was the Respondent’s duty to act upon these texts, and she confirmed in the email that she was advised to keep the incident confidential, but as to working as usual the matter was not discussed at the meeting; in other words, the working relationship between her and Chris Browne was not discussed.  On 18 May Mr Gonzalez said this:

“In terms of your position regarding a formal grievance against Chris Browne, I understand that you prefer to rely on us to deal with the issue via a formal disciplinary process against him.  If this is not the case and you are intending to raise a formal grievance instead, can you please let me know ASAP and write to us stating your grounds for complaint so we can deal with the issue via a formal grievance process?  Otherwise we will initiate the preparations following the disciplinary procedure as explained.
Finally, I understand that you are upset with the whole situation so please keep us informed if anything relevant occurs.”

7.	A disciplinary officer was appointed, Gavin Nixon, to investigate a disciplinary matter about sending inappropriate text messages.  The HR adviser on 19 May said this:

“To enable completion of the investigation Gavin [Nixon] has requested your assistance in order to take your statement.  Please note that your assistant [sic] is only required as a witness/recipient of the text messages.
I would therefore like to invite you for the meeting with Gavin Nixon and myself as HR representative which will take place on Friday 21 May 2010 in the HR office at 11am.
If you have any question please let me know.”

8.	Chris Browne was required to attend a meeting that day (that is, 21 May) as well, at 2.00pm.  The Claimant did not wait for that meeting, which did take place on 21 May; instead, she issued her claim form.  Meanwhile, on 20 May, an outsider Joe Craddock, who was found by management and by the Tribunal to have written the offensive text, wrote to Gavin Nixon indicating that Chris Browne knew nothing about the text message and could not be held accountable; he was very sorry.  A signed copy of that was sent on 25 May.  It appears that the 20 May email may not have been before the Employment Tribunal, but its precise content was replicated in the signed copy of 25 May 2010.  There never has been any other explanation, and so it was Joe Craddock who played the tasteless prank on his friend Chris Browne, causing legitimate upset to the Claimant and her family.

9.	The first issue that I have decided arises is whether the claim form was in time or too early.  The Judge decided that to bring proceedings on 20 May following the meeting on 17 May, in the circumstances of the email trail set out above, was unreasonable.  The claim was that the Respondent had discriminated against the Claimant by failing to carry out a timely investigation.  On the basis of that he considered that the Claimant should pay costs of £2,000 for the decision to issue proceedings on that date.  His view was as follows:

“32. Just because an allegation is made by an employee, it does not mean that necessarily it is true or it is of itself actionable harassment.  Indeed, as I have found here even if this comment had been in a text message from Mr Browne it was not actionable before the tribunal.  That much is particularly the case where incidents occur outside working time and the work place.  It is axiomatic, in my judgment, that the respondents must have a reasonable opportunity to investigate the circumstances of such an allegation and to say that somehow the claimant was further harassed because that did not occur within three days, is in my respectful judgment to make an allegation which is truly misconceived.”

10.	It is clear that a refusal to carry out an investigation could constitute an act of discrimination, and so could dragging your feet in such an investigation, but the management in this case did not refuse.  On the contrary, they offered the Claimant the opportunity to present the matter as a formal grievance; she declined to do so, being content to appear as a witness in an investigation conducted by a disciplinary officer.

11.	At one stage in the proceedings it was contended that the Claimant has a case about the way in which she was asked questions at the meeting on 17 May.  I can see nothing offensive about the question: “Do you want to invoke formal disciplinary proceedings against Chris Browne?”  Given that the Claimant did not pursue that and left it to management, it seems to me that the Judge was entitled to form the view that at the time the claim crystallised by its presentation on 20 May the Respondent could not be said to have committed any tort of discrimination.  In my view the most telling piece of evidence against the Claimant’s proposition is the email on 19 May inviting her to a meeting to assist, and yet her response was immediately to go to the Employment Tribunal.  The Judge was entitled to hold that that was unreasonable.  At that stage it could not be said that there was a fully constituted tort, and in my judgement the measure of time by the Judge was open to him as a matter of fact.  It is actually shorter, in that given that the Claimant was exchanging email about the way in which she wanted this matter to be moved on, the clock really starts on 19 May when she was invited to a formal meeting after which time the Respondent had seen Mr Browne.  In those circumstances the Judge cannot be criticised for his finding about the measure of time. 

12.	Thereafter the question of costs was a matter for him.  The Judge recognised that it is rare in an Employment Tribunal for costs to be awarded, but they may be, under rule 40. He considered the circumstances carefully, and in my judgment his exercise of discretion is not to be interfered with, as the Court of Appeal has so recently found in Barnsley Metropolitan Borough Council v Yerrakalva [2011] EWCA Civ 1255 and in upholding my approach in Dean & Dean [2-11] EWCA Civ 1331 and Arrowsmith [2011] EWCA Civ 797.

Victimisation
13.	I then turn to the other aspects of the case.  Logically, I suppose, in time is the contention by the Claimant that she was victimised, a claim struck out by the Judge.  The basis of the claim was that the secondment of the Claimant was terminated as a result of her assisting her husband in his disciplinary proceedings.  In those disciplinary proceedings it is said that Mr Purohit said he had been discriminated against. But as Judge Ryan put it when recording the evidence that Mrs Purohit gave to him, that was not by reference to race but simply to frustration.  The Judge set out the circumstances in which that was put, and he recorded his grave reservations about the accuracy of Mrs Purohit’s evidence.  As it turns out, those reservations inured into hard findings by the Bedeau Tribunal as to the Claimant’s reliability. Being generous to her, Judge Ryan was prepared to assume that she is right and that Mr Purohit did say he had been discriminated against.  

14.	So he turned to victimisation under section 2 of the Race Relations Act, and set out the circumstances in which it might arise.  He succinctly summarised the position in the following way:

“10. So in order for the claim of victimisation to run there has to be a protected act as it is called within the terms of sub‑paragraphs (a) to (e) and then the claimant has to show that that is the reason why she was subjected to the treatment.”

15.	His conclusion was based upon what the Claimant said occurred.  In her claim form she does raise the issue, it seems to me, and does say that she made a witness statement for her husband.  It is plain that that succeeded and did not precede the alleged act of victimisation in relation to the secondment, and so that cannot be part of the allegation.  Confining himself therefore to the attendance of the Claimant when her husband made the remark, the Judge said this:

“11. Clearly the bringing of proceedings, the giving of evidence or the making of allegations do not apply because none of those things occurred.  Could Mrs Purohit’s presence as a work place representative at her husband’s disciplinary meeting at which he said that he felt discriminated against, be considered as doing otherwise anything under or by reference to the Act.  In my judgment it is necessary only to state that proposition to immediately recognise that the answer must be in the negative.  There is no way in which that could be said to amount to a protected act for the purposes of a claim of victimisation.  I find without hesitation that that allegation has no reasonable prospect of success.  In any event, finding as I do that that allegation is not within the claim form, I am driven to the conclusion that it is substantially out of time and it would not be just and equitable to extend time to include it.  For those two reasons, I refuse permission to amend to include that claim.”

16.	As those findings make clear, there is a question of law, yet that question is not itself before me.  The correct analysis of section 2 is not for me to decide, but as it happens it seems to me that the Judge made the right decisions as to the proposition.  Plainly, bringing proceedings or being a witness in someone else’s proceedings under the Race Relations Act is a protected act, but that, as I have said above, does not arise here.  That means that the claim itself, if properly made out, could not as a matter of law amount to a breach of section 2.  

17.	The Judge went on, in the passage I have cited, to say that the claim was not made in the claim form and that it ought not to be allowed to be put in.  In his reply to me after Mr De Marco, counsel for the Respondent, had made his submissions, my attention was drawn to parts of the claim form not previously relied upon.  It is submitted that the Claimant in her claim form did raise the allegation that she had attended with her husband.  I am prepared to accept for this purpose that there is in the very broadest and non‑specific terms an allegation. For the Claimant says that, having remained present as a work colleague in a disciplinary and appeal meeting, she was discriminated against.  True it is she mentions the witness statement, but Mr De Marco submitted this was made as a matter of chronology later and cannot be relevant. Mr Purohit did not challenge that, so I am dealing only with her remaining present as a work colleague. The Judge has ruled as a matter of law that that is not capable of constituting a protected act, and if necessary for my decision, I would agree.

18.	In any event there must be severe doubts, as the Judge found, as to whether a remark about discrimination was made. Even so, such remark was not in the context of race, and therefore arguably protected by the Act, but of other matters.  That was the oral evidence given to Judge Ryan by Mrs Purohit.  In my judgment the primary finding by the Judge, which is not appealed, remains, and so his finding as to whether it was in the claim form does not arise.  If I were to disagree with that, since it is arguable that in the claim form there is a reference to attendance at the meeting, the matter would still fail for the legal reason that I have described above, and so the Judge was correct to strike it out.

Working together and harassment
19.	The third issue relates to the working relationship with Mr Browne.  The simple truth is that Mrs Purohit did not come up to proof, for she disavowed the suggestion that management had refused her request to be parted from Mr Browne; as she says, the issue did not come up. Management cannot be criticised for failing to remove Mr Browne from working closely with the Claimant and therefore this ground of appeal is dismissed.

20.	The nature of the harassment claim is based upon a finding that the Claimant had asked for Mr Browne to be removed, but that is not the finding, and so all of this to do with Mr Browne stemming from the meeting on 17 May as forming a harassment claim in itself is misconceived.  

21.	I allowed the adduction of new material in an email of 19 November 2010.  Mr De Marco did not dissent from my dealing with this matter.  What it says is this:

“We also had meetings with [the Claimant] in May and June (Paul and myself) in order to understand her issues and explore how we can best support her, unfortunately [she] was not happy with this and she made some noises indicating that this type of meetings were part of harassment and bullying strategy.
[…]  
As a reasonable employer, we are aware of our duty of care and have been as supportive as we can, unfortunately with Hetal’s attitude we are down if we do and we are down if we don’t, this of course has been already stated in our formal responses to the tribunal.”

22.	The value of this email for Mrs Purohit’s case is that it reflects the understanding of the management as to what the meetings were doing to the Claimant, and I was minded at the rule 3(10) hearing to allow this matter to be argued.  It does not provide the support that she seeks to draw from it.  It refers to a number of meetings, and what I am here dealing with is the meeting on 17 May; that was the only meeting, and as a matter of substance I find nothing in the accounts of that meeting demonstrated by the email exchanges and the action of the management in setting up the disciplinary hearing that could give substance to a claim that the meeting itself was harassment.  In any event that claim was not made in the claim form and therefore could not be taken forward.  The Judge was correct in his approach to each of those allegations.

Conclusion
23.	I appreciate that today I have taken a different view from the provisional view I took, which of course was based upon hearing only Mr Purohit, and I indicated that this matter should be sent to a preliminary hearing together with submissions of the new material.  It seems to me that the Judge was correct in the decisions he made, or at least in the exercise of his discretion; it is not right on appeal for this matter to be interfered with.  In those circumstances the appeal is dismissed.  I would like to thank Mr Purohit and Mr De Marco for their help today.

Appeal
24.	An application has been made by Mr Purohit for permission to appeal.  As he knows from his now extensive experience in litigation, grounds have to be put forward; he is himself legally qualified.  No grounds have been.  Being generous to him, I assume they are all the grounds that he put before me.  There is no reasonable prospect of success, and insofar as factual matters are relied upon the findings of the Bedeau Tribunal about the credibility of Mrs Purohit would weigh against any further consideration in the courts.  There is no compelling reason for this case now to receive the attention of the Court of Appeal, and I bear in mind the language of Maurice Kay LJ in Eszias [2007] IRLR 603 that this is an interim appeal, and the standard for appeal to the Court of Appeal ought to be higher for such matters, at least in respect of the discretions involved here.  There has already been a trial of the Claimant’s whole case.  Permission is refused.