Appeal No. UKEAT/0268/12/KN
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX
At
the Tribunal
On
21 May 2013
Before
HIS
HONOUR JUDGE PETER CLARK
MR A HARRIS
MR T HAYWOOD
MR
M GROVES APPELLANT
THE
HOUSE OF COMMONS COMMISSION AND OTHERS RESPONDENTS
Transcript of Proceedings
JUDGMENT
SUMMARY
DISABILITY DISCRIMINATION – Burden of proof
Burden of proof provisions correctly applied to claim of DDA
victimisation. Permissible conclusion reached by Employment Tribunal.
Post-termination conduct of Claimant relevant to remedy issue; had it arisen at
the end of a joint liability/remedy hearing.
HIS HONOUR JUDGE PETER
CLARK
Introduction
1.
Mr Groves, the Claimant, was employed by the Respondent, the House of
Commons Commission, from 27 July 2009 until his dismissal by way of
non-confirmation of his appointment following a period of probation on 16 April
2010. He presented a total of four forms ET1 to the London Central Employment
Tribunal. The claims were combined and came on for initially an eight-day
hearing in March 2011 before a Tribunal chaired by Employment Judge Glennie. After
a further three days of deliberations in chambers, that Tribunal dismissed all
his claims. Having given oral judgment, they then rejected an application by
the Respondent for costs. Their Judgment with Reasons running to 30 pages was
promulgated on 13 June 2011.
2.
The present appeal was first rejected on the paper sift by HHJ McMullen
QC. However, at a rule 3(10) hearing before Langstaff P on 9 May 2012 the
President was persuaded by counsel for the Claimant, then appearing under the ELAAS
pro bono scheme at that Appellant-only hearing, to permit two grounds of appeal
only to proceed to a full hearing. All other grounds were dismissed. An
application by the Claimant for a review of the President’s Judgment was
rejected by an order dated 25 June 2012.
3.
The two live grounds of appeal were articulated in the President’s rule
3(10) order dated 17 May 2012 in the following terms:
“(i) That the Employment Tribunal misapplied the burden of proof
in deciding it was satisfied by the employer’s explanation that the decision to
dismiss by non-renewal of the Claimant’s probationary employment was completely
uninfluenced by the fact he had complained of discrimination against him on the
ground of his disabilities, particularly by regarding the fact that it could
have dismissed him purely because of his conduct as meaning that it did
do so.
(ii) That the Employment Tribunal found facts relating to the
post-termination conduct of the claimant, did not identify clearly its purpose
in doing so, and probably took it into account for an impermissible purpose.”
Burden of proof
4.
The particular complaint with which this ground is concerned is the
Claimant’s complaint of victimisation in his fourth ET1 arising out of the
non-renewal of his employment appointment (see the issue identified at
paragraph 12.2 of the Reasons). This claim was brought under the Disability
Discrimination Act 1995 (DDA), then in force.
5.
In order to put the matter in context, the Tribunal directed themselves
as to the test of motive and both conscious and subconscious motivation as
explained by Lord Nicholls in Nagarajan v London Regional Transport
[1999] IRLR 573 HL (see Reasons, paragraph 22) and the reverse burden of proof
provided for in section 17A(1)(c), DDA (paragraph 23).
6.
The relevant findings of fact by the Tribunal, which centre on a meeting
held on 13 April 2010 at which the Claimant was not present, are to be found at
paragraphs 81 to 87. By that time, the Claimant had presented his first ET1 to
the Tribunal on 5 April and, as he told Ms Welham of the Respondent by email on
12 April, a second form ET1 and had served on the Respondent a number of DDA
questionnaires. All of these were protected acts.
7.
The Tribunal found that the Respondent’s decision not to renew the
Claimant’s appointment so soon after these protected acts were done gave the
appearance of suspicious circumstances (see paragraph 86). However, on balance
they concluded that the reason why his contract was not renewed was his
previous conduct. The Respondent had discharged the burden of proving that the
non-renewal of his employment appointment was in no way connected with the
earlier protected acts either consciously or subconsciously (see paragraphs 120
to 125). This ground of appeal is explained by the President at paragraph 8 of
his Judgment given at the rule 3(10) hearing.
8.
Having now heard submissions by Ms Robinson, who appeared below, in
answer to those of Mr Groves, we are satisfied that the concern expressed by
the President at paragraph 8 is not well-founded. The correct analysis is that
at paragraph 86 the Tribunal are excluding any suggestion that the Claimant’s
pre-termination conduct relied on by the Respondent and set out at paragraphs
52, 65, 70, 74, 86.3, 115, 116 and 124 of the Reasons could not amount to a
reason justifying dismissal. Had they found otherwise, then the Respondent
would not have provided a credible, non-discriminatory reason for dismissal and
the claim of victimisation would, Ms Robinson accepts, inevitably have
succeeded.
9.
However, the Tribunal did not end its analysis there. At paragraphs 121
to 125 it followed each of the required legal steps. First, it found that
stage 1 of the Igen v Wong [2005] ICR 931 test was passed and
that the burden shifted to the Respondent to provide a wholly
non-discriminatory reason for dismissal (see paragraph 121). Next, it ruled
out conscious victimisation based on its earlier findings of fact (see
paragraph 122).
10.
Finally, the Tribunal engaged with the difficult question of
subconscious victimisation and found that the Respondent did not in any way
victimise the Claimant. The protected acts played no part in the decision not
to renew his contract. In so doing, they answered the “reason why” question:
it was solely due to the Claimant’s conduct.
11.
Mr Groves has drawn our attention to a number of relevant authorities,
but we think that the law is clear as we have stated it to be and was properly
applied by the Tribunal. More widely, he submits that the factual matrix,
particularly the temporal link between the protected acts and the decision not
to renew his contract, point ineluctably to the conclusion that the protected
acts played some part in that decision and that is sufficient.
12.
We see the force of his argument before the Employment Tribunal, but we
remind ourselves that it is not for us to substitute our judgment for that of
the Tribunal, which heard the case over eight days and then spent three days in
deliberations. We cannot say that their conclusion was legally perverse.
There was no patent misdirection in law. Accordingly, this ground of appeal
fails and is dismissed.
Post-termination conduct
13.
The reason for this ground being permitted to proceed, albeit with less
enthusiasm on the President’s part, is explained at paragraph 10 of his rule 3(10)
Judgment. What we have now been told is that the hearing below was not limited
to the issue of liability but incorporated questions of remedy should it arise.
That is why, Ms Robinson tells us, she sought the admission of evidence of the
Claimant’s post-termination conduct which is dealt with at paragraphs 91-94.
It was the basis for her alternative argument that if any of the claims were to
succeed, compensation should be limited to loss of earnings for a short period
before the claim would have been dismissed fairly and without discrimination on
conduct grounds. That alternative case is dealt with at paragraph 128, to
which the President does not refer at paragraph 10 of his Judgment.
14.
On that basis, we reject Mr Groves’ submission that in forming a view of
his post-termination conduct the Tribunal’s view on liability was somehow
clouded. On the contrary, we are satisfied that the Tribunal correctly placed
that evidence in the appropriate box marked “remedy if it arises”. It also in
the event became relevant to the Respondent’s unsuccessful costs application
(see paragraph 138). For these reasons, this appeal fails and is dismissed.
