Bird v Sylvester and another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Lord Justice Gage,Lord Justice Rimer |
| Judgment Date | 04 October 2007 |
| Neutral Citation | [2007] EWCA Civ 1052 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2006/2667 |
| Date | 04 October 2007 |
[2007] EWCA Civ 1052
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE REID QC)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Laws
Lord Justice Gage and
Lord Justice Rimer
Case No: A2/2006/2667
Mr J Donavan (instructed by Bury Metro Racial Equality Council) appeared on behalf of the Appellant.
Mr R Carter (instructed by Shammah Nicholls) appeared on behalf of the Respondent.
This is an appeal brought with permission granted by Sir Henry Brooke on 9 March 2007 against a decision of the Employment Appeal Tribunal presided over by HHJ Reid QC, given on 5 December 2006, by which it dismissed the appellant's appeal against a determination of the Manchester Employment Tribunal made on 18 July 2006. The employment tribunal had ordered that certain claims of victimisation brought by the appellant be struck out as having no reasonable prospect of success. The claims had been brought against the first respondent, the appellant's former employer, and the second respondents who were the first respondent's solicitors. I will refer briefly at this stage to the relevant provisions of the Race Relations Act 1976 relating to victimisation. Section 2.(1) provides in part:
“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”.
I may break off there. Section 4.(2) provides in part:
“It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee…(c) by dismissing him, or subjecting him to any other detriment.”
Section 33 provides in part as follows:
“(1) A person who knowingly aids another person to do an act made unlawful by this Act shall be treated for the purposes of this Act as himself doing an unlawful act of the like description.
(2) For the purposes of subsection (1) an employee or agent for whose act the employer or principal is liable under section 32…shall be deemed to aid the doing of the act by the employer or principal.”
There is, as the employment tribunal was to observe, a considerable history to the matter; but the core facts may be summarised quite concisely. The appellant had since February 2001 been employed by the first respondent, who was an orthopaedic surgeon. She was employed as a receptionist/housekeeper. She was, however, off work sick from October 2004 until at length she resigned on 22 December 2005. In March 2005 she brought proceedings against the first respondent in the employment tribunal, alleging amongst other things race discrimination. I may refer to these proceedings as “the first claim.” On 5 July 2005, before the first claim was heard, the second respondent solicitors, acting on behalf of the first respondent, wrote to the appellant's representatives asserting that the appellant had acted unreasonably, the claim was misconceived, and if it proved unsuccessful an application for costs would be made against the appellant, pursuant to paragraph 40 of the Employment Tribunal Rules 2004. However the matter proceeded, and the first claim was heard on 13 and 14 July 2005. The employment tribunal's judgment was set out in 12 September 2005. The tribunal upheld a complaint made by the appellant to the effect that she had not been issued with written particulars of her employment, but dismissed the claim of race discrimination. We have not seen the judgment, but there are a number of references to it in the papers. It appears that the tribunal found that the appellant had been an unimpressive witness who had exaggerated her evidence, and the claim was unanimously dismissed on the merits. The Employment Appeal Tribunal in the present proceedings (paragraph one of their judgment) stated that the race discrimination claim “failed abysmally”.
The second respondents, on behalf of the first respondent, issued an application for costs against the appellant in relation to the first claim on the ground that that claim was unreasonable and misconceived. On 3 October 2005, which I think was the same day as that on which they issued the costs application, the second respondent wrote a 'without prejudice' letter to the appellant's representatives, the Bury Metro Racial Equality Council. It included this passage:
“Our Client has made a Costs Application to the Employment Tribunal for the full amount of our Client's costs for the sum of £13,806.25 including VAT.
However our Client is willing to accept 50% of the costs set out above if your Client will agree to all of the following: —
A. To resign from her employment forthwith without compensation and sign a Compromise Agreement and
B. To apologise to Bernard Sylvester, Anne Platt and Brenda Longden [I interpolate, Bernard Sylvester is the first respondent and the two ladies referred to were employees of his] and
C. To not Appeal the Employment Tribunal Judgment dated 12 September 2005.”
The letter ends with a reminder of the solicitors' previous communication about costs made on 5 July 2005.
The appellant rejected this proposal. On 13 December 2005 the first respondent's costs application was heard by the employment tribunal and dismissed. They also dismissed a cross-application for costs which had been brought by the appellant in response to the first respondent's application. On 28 October 2005, and again on 15 December 2005, the second respondent wrote to the appellant's representatives indicating an intention to conduct disciplinary proceedings, in part by reason of the appellant's conduct in the first claim. The appellant raised what is called a written grievance against the first respondent. On 22 December 2005, as I have stated, the appellant resigned her employment. The appellant had sought to appeal to the Employment Appeal Tribunal against the employment tribunal's judgment on the first claim. However she withdrew that appeal shortly before the hearing, and on 16 March 2006 was ordered by the EAT to pay £500 costs. In the same month she launched her second claim, and these are the proceedings now before us. The appellant asserts against the first respondent that his application for costs notified in the letter of 3 October 2005, together with the terms of the proposal there set out for a settlement, and the subsequent pursuit of the application to the employment tribunal, amounts to victimisation within the meaning of section 2.(1) of the Race Relations Act 1976. She also seeks to say that she was victimised by the threat of disciplinary proceedings. Her claim against the second respondent solicitors relies on the same factual matters, and is brought pursuant to section 33 of the Race Relations Act 1976, whose first two sub-sections I have set out.
The employment tribunal was faced with an application by both respondents to strike out the claim. As regards the threat to take disciplinary action, the employment tribunal (see paragraph 21) declined to strike out that part of the claim as against the first respondent, and there is no cross-appeal. As for the primary case of victimisation against the first respondent relating to the costs issue, the employment tribunal said this at paragraph 22:
“Whilst as Mr Broomhead submits, the case itself has concluded [I interpolate: this is a reference to the first claim], this was a reserved decision and the first respondent was perfectly entitled, having read the reasons for the Tribunal's judgment, to take the view, as advised, that it was proper and appropriate to make an application for costs against the claimant. He was also perfectly entitled, through his solicitors, to make proposals to the claimant with a view to compromising the claim for costs, which could properly include a condition that the claimant resign. Whilst some people might describe such action as 'a threat', any attempt to compromise with a proviso that legal action will follow if compromise is not achieved, could always be described as 'a threat'. In fact, such is perfectly normal practice in the conduct of litigation (including matters of costs after judgment) and cannot in this Tribunal's judgment in any way form the basis of a victimisation claim. Accordingly that part of the claimant's claim is struck out on the basis that it has no reasonable prospect of success.”
As regards the claim against the second respondent solicitors the employment tribunal reasoned as follows:
“18. In relation to the position of the second respondent Shammah Nicholls, it seemed to the Chairman to be contrary to public policy for a professional firm of solicitors to be at risk of becoming a respondent to proceedings simply by writing letters setting out the proposed course of action by their client, the employer, which the employee considers amounts to an act of discrimination or victimisation. Whilst the solicitor may provide advice to his client in relation to a proposed course of action, the solicitor acts on the instructions of the client and is merely the conduit through which the employer's actions or proposed actions are identified.
“19. Even if it is alleged that the solicitor is actively encouraging a particular course of conduct which may be discriminatory, it is impossible for a Tribunal to determine whether such has occurred or not without hearing or...
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