Bahl v The Law Society and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Peter Gibson |
| Judgment Date | 30 July 2004 |
| Neutral Citation | [2004] EWCA Civ 1070 |
| Docket Number | Case No: A1/2003/2787 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 July 2004 |
[2004] EWCA Civ 1070
Lord Justice Peter Gibson
Lord Justice Latham and
Lord Justice Maurice Kay
Case No: A1/2003/2787
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EAT (Elias J. Presiding)
EAT105601 DA
Royal Courts of Justice
Strand,
London, WC2A 2LL
Mr. Rambert De Mello and Mr. Satvinder Singh Juss (instructed by Messrs Khans of Ilford) for the Appellant
Mr. Paul Goulding Q.C. (instructed by Herbert Smith of London) for the 1 st Respondent
Ms. Ingrid Simler (instructed by Fox Williams of London) for the 2 nd and 3 rd Respondents
This is the judgment of the court to which each of its members has contributed.
Dr. Kamlesh Bahl CBE appeals from the order of the EAT ("the EAT") on 31 July 2003. Thereby the EAT allowed in part the appeals by the First Respondent, the Law Society, the Second Respondent, Mr. Sayer, and the Third Respondent, Mrs. Betts, from the decision dated 4 July 2001 of an ET ("ET") sitting at Watford. The ET had found that the Law Society, Mr. Sayer and Mrs. Betts had discriminated against Dr. Bahl both on racial grounds and on the ground of her sex. The EAT reversed those findings. Dr. Bahl sought permission to appeal to this court on 10 grounds. The EAT gave such permission on 8 grounds but refused permission on the remainder. Dr. Bahl renews her application for permission to appeal to this court on one of the refused grounds, and appeals on the original 8 grounds for which permission was granted.
The facts
We now set out the more important facts which we take from the findings of the ET.
Dr. Bahl is a black Asian with British nationality. She was born in Kenya but has lived in the United Kingdom since she was 9. She is a solicitor. She was first elected a member of the Council of the Law Society in 1990 as a representative of the Commerce and Industry Group. She was the Chair of the Equal Opportunities Commission ("the EOC") from 1993 until she resigned in November 1998. Mr. Sayer encouraged Dr. Bahl to become actively involved in the affairs of the Law Society. He wished to reform the way it operated and he thought that she could assist him in that objective. In October 1996 he requested her to stand for election as Deputy Vice President, but she did not agree to stand until 1998. They worked closely together in the period before the 1998 election and he helped her with such things as tactics, the writing of her manifesto and advertising. In July 1998 she was elected the Deputy Vice President of the Law Society. Mr. Sayer was elected Vice President. One year later she was elected as Vice President and Mr. Sayer was elected President. From July 1998 until late August 1999 their relationship was good. It appeared likely that she would become both the first woman and the first member of an ethnic minority group to become President of the Law Society.
Mrs. Betts was appointed Secretary General of the Law Society from April 1996. As such, her role was as chief executive of the Law Society and head of its staff. She originally welcomed Dr. Bahl's appointment as Deputy Vice President and had high hopes of her. However, two incidents occurred in September 1998 when Dr. Bahl had made angry and upsetting telephone calls to Jean Johnson, the then Director of Human Resources, one of which left Ms. Johnson in tears, and on 15 October 1998 Dr. Bahl shocked Mrs. Betts by the severity of a tirade against Andrew Hall, the Director of Corporate Management. Mrs. Betts spoke to Dr. Bahl after that occasion about her manner and the managing of her behaviour. Mrs. Betts tried to explain to her staff that Dr. Bahl was a strong leader and that they should put her behaviour on one side and get on with the job. But during November 1998 Mrs. Betts' senior management team expressed concerns to her about Dr. Bahl's behaviour and Mrs. Betts thought it would be appropriate for the President to speak to Dr. Bahl. She sent Michael Matthews, the then President, a memorandum expressing her and her senior managers' concerns about Dr. Bahl whose leadership style, Mrs. Betts said, was "proving to be highly authoritarian and confrontational rather than collaborative". She explained in the memorandum that she had tried to mediate and deal with each incident individually but said that the overall problems seemed to be building up into something considerably more serious. Mr. Matthews spoke to Dr. Bahl and told her that staff were unhappy about her behaviour, but, as the ET found, he did so in such veiled terms that it had little meaning for her.
Further incidents took place in December 1998. In two of them, involving Barbara Cahalane, the Director of Communications, and David McNeill, the head of the press office, the ET found that Dr. Bahl raised her voice in anger to both staff members, but that she had every right to be angry. In another involving another member of Mrs. Cahalane's staff, John Ludlow, Mrs. Cahalane protested to Dr. Bahl about the way she had spoken to Mr. Ludlow.
A fourth incident involved Russell Wallman, the then Director of Policy and a senior member of staff. At a meeting on 9 December 1998, the Council accepted the recommendation in a report of a reform working party chaired by Dr. Bahl that an Interim Executive Committee ("IEC") be set up to carry forward the process of reform. The report recommended the abolition of certain committees the cost of which the working party had estimated. Mr. Wallman had written to the chairmen of those committees serviced by his directorate, criticising that estimate. Dr. Bahl was understandably furious at what appeared to be a subversive attempt to sabotage the work of the working party. At a meeting attended by Mr. Matthews, Mr. Sayer, Dr. Bahl and Mrs. Betts, Mr. Wallman was reprimanded in very angry terms by Dr. Bahl who was aggressive and lost her temper. Two vivid descriptions were given to Lord Griffiths (to whose subsequent involvement we will shortly come). Mr. Matthews' abiding recollection was of Mr. Wallman "sitting there with an absolutely white shocked face looking as if he had been hit in the solar plexus". Mrs. Betts said of the way Dr. Bahl spoke to Mr. Wallman:
"It was confrontational and it felt as though there was a culprit to be found and blame was going to be apportioned and hands were going to be chopped off."
We will return to Mrs. Betts's use of language. Mr. Sayer told the ET that the force of the attack came as a great surprise to him and he did not know what to say or do and therefore did not intervene. The explanation did not convince the ET. However, neither the President, Mr. Matthews, nor anybody else present intervened. By February 1999 Mr. Wallman was suffering from stress and receiving counselling and medical treatment.
On 11 March 1999 Mr. Wallman wrote a memorandum to Mrs. Betts about the problems caused by the behaviour of Dr. Bahl towards staff and mentioned the possibility of instituting a formal complaint under the Law Society's Dignity at Work Policy ("the Dignity Policy") in respect of his own position and on behalf of others in his directorate.
The Dignity Policy had been circulated to Council and all staff on 12 November 1998. In it the Law Society stated that all staff had the right to be treated with dignity and respect at work, that all forms of harassment, including bullying, are insulting and demeaning to the recipient and are deplored by the Law Society, which welcomed the support of MSF (the Manufacturing, Science and Finance branch of Amicus, the trade union for Law Society staff) in seeking to eradicate all forms of harassment from the workplace. The policy was expressed to apply to all staff and the complaints procedure which it provided was said to apply to all who felt that they had suffered from harassment, bullying or victimisation from another staff member or group of staff or a Council or Committee member. The Law Society acknowledged its duty to protect the health, safety and welfare at work of all staff. In a section of the Policy dealing with bullying, some of the more common ways for bullying to occur were said to include shouting at a colleague, negative attacks on a colleague's personal or professional performance and criticising a colleague in front of others. Staff were told they could discuss complaints in confidence with Human Resources staff. Under the complaints procedure it was recommended that staff should try to resolve the issue informally, but where harassment involved a Council member and the staff member felt unable to follow the informal procedure, the matter could be referred to the Director of Human Resources who would discuss it with Mrs. Betts and, if necessary, the President. Where informal methods failed, or serious harassment or bullying occurred, staff were advised to bring a formal complaint. If the harassment or bullying involved a Council member, the complaint was to be sent to Ms. Johnson. On receipt of a complaint, action would be taken, where appropriate, to separate the alleged harasser from the complainant. If a complaint were made against a Council member, Ms. Johnson, Mrs. Betts and the President would investigate it and, if necessary, pass it to the Office for the Supervision of Solicitors. Para. 6.11 of the Policy provided:
"Those investigating the complaint should not be connected with the allegation in any way."
The Dignity Policy did not in terms address a complaint against an office holder.
At a meeting attended by Dr. Bahl on 15 March 1999 Mr. Wallman was treated by...
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