Bone v Newham London Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wall,Lady Justice Smith,Lord Justice Buxton |
| Judgment Date | 30 April 2008 |
| Neutral Citation | [2008] EWCA Civ 435 |
| Date | 30 April 2008 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2007/1839 |
[2008] EWCA Civ 435
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Buxton
Lady Justice Smith and
Lord Justice Wall
Case No: A2/2007/1839
John Horan (instructed by Citizens Advice Bureau) for the Appellant
Jude Shepherd QC (instructed by London Borough of Newham) for the Respondent
Hearing date : 15th April 2008
—
The appeal
This appeal from the Employment Appeal Tribunal (EAT) arises in highly unusual circumstances and it is therefore necessary to set out the background in somewhat greater detail than would otherwise be the case. Its unusual feature is that the issues (which essentially go to liability) arose only during the course of a remedies hearing in the Stratford Employment Tribunal (the Tribunal) on 11 and 12 December 2006, following an earlier liability hearing which had been spread over some 10 days between 25 January and 16 March 2006, followed by 5 days in May and June 2006 spent in chambers, and a decision promulgated on 26 June 2006.
The appellant in this court is Caroline Elizabeth Bone, who was the claimant in the Tribunal. The respondent before us, and before the Tribunal, is the appellant's former employer, the Mayor and Burgesses of the London Borough of Newham (Newham), although there were other respondents (all employees of Newham) before the Tribunal.
The appellant made three separate applications to the Tribunal alleging sex discrimination, victimisation and unfair dismissal. The three applications were consolidated and heard together. In relation to direct sex discrimination, the Tribunal identified some 30 incidents spread over the three applications in which the appellant alleged she had suffered discrimination. In the alternative, the appellant invited the Tribunal to treat all 30 incidents as acts of victimisation. She also alleged that she had been constructively unfairly dismissed and that Newham had acted in breach of contract. Most importantly for our purposes, the Tribunal recorded, under the preliminary heading Breach of Contract:-
In addition to these breaches the claimant says that her dismissal/resignation on 23 May 2005 was in itself an act of direct sex discrimination, victimisation, constructive unfair dismissal and a breach of contract.
The appellant appeared in person both before the Tribunal and in the EAT. Newham has throughout been represented by counsel, Miss Jude Shepherd, who also appeared before us.
In the liability hearing, the appellant achieved a measure of success. However, as the EAT pointed out, it was clear to anyone reading the Tribunal's initial decision promulgated on 26 June 2006 that the summary of the conclusions in respect of victimisation failed to accord with the decisions recorded. There were, in particular, two issues (numbered by the Tribunal (xx) and (xxii)) which, in the decision, the Tribunal found proved as instances of victimisation but which failed to find their way into the Tribunal's summary as having been proved.
The appellant pointed out this deficiency to the Tribunal and, on 8 September 2006, the Chairman, uncontroversially, issued a Certificate of Correction under the provisions of rule 37(1) of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (the Regulations). I will call this “the first certificate”. The Tribunal then sent its revised judgment and reasons to the parties on 8 September 2006.
The unanimous judgment of the Tribunal as contained in the version of the decision sent to the parties on 8 September 2006 was in the following terms:-
(1) (Newham) and (Mr. Abdul Qureshi) (Newham's head of property services) directly discriminated against the claimant on grounds of sex as alleged in issues (i) and (iii) and victimised the claimant to her detriment contrary to the provisions of the Sex Discrimination Act 1975 as alleged in issue (vii) of the issues set out herein.
(2) (Newham) and (Mr Eric Abu) (the appellant's team leader and immediate line manager) victimised the claimant to her detriment contrary to the provisions of the Sex Discrimination Act 1975 as alleged in issues (vi), (vii), (ix) in part, (xv)-(xvii), (xx) and (xxii) of the issues set out herein.
(3) the claimant's other complaints of direct sex discrimination and victimisation contrary to the Sex Discrimination 1975 fail and are dismissed.
(4) the claimant was dismissed; she resigned in response to (Newham's) breach of the implied term of trust and confidence.
(5) Her dismissal was unfair.
(6) A date will now be fixed for a remedy hearing if required.
The details of the allegations found to be proved do not, for present purposes, matter. What does matter, and what will immediately be observed, is that the judgment does not say that the claimant's dismissal was an act of direct sex discrimination and victimisation.
A remedies hearing was indeed required and, as I have already stated, began on 11 December 2006. At this hearing, it emerged that there was what the Tribunal Chairman subsequently described as “a fundamental misinterpretation” of its judgment on Newham's part, in that Newham had prepared for the remedies hearing on the “misunderstanding …. that the Tribunal had not found the (appellant's) dismissal was sex discrimination”. The Tribunal decided to adjourn the remedies hearing to allow Miss Shepherd “to take detailed instructions from her client and revise her instructions”.
In what is described as a “Judgment on Remedy” (and from which the quotations in the previous paragraph are taken) the Tribunal added the following two paragraphs:-
5. When invited to do so, the Tribunal agreed to consider whether to review of its own accord its judgment to clarify there was a finding of sex discrimination in respect of the dismissal and to say against whom this finding was made.
6. Having re-read its judgment, the Tribunal decided to issue a certificate of correction pursuant to rule 37(1) of (the Regulations). The certificate of correction and corrected judgment are attached to this judgment.
I will call the document attached to the Tribunal's Judgment on Remedy “the second certificate”. It is dated 5 January 2007 and it purports to amend the terms of the judgment which I have set out in paragraph 7 above. It amends paragraph (3) by adding the words “save as is set out under paragraph (4) below” to the beginning of (3), and to paragraph (4) it adds the words “Her dismissal was direct sex discrimination and victimisation by (Newham)”. It adds identical words to paragraph 136 of the judgment sent to the parties on 8 September 2006, which, without those words, read as follows:-
Dismissal
136. The facts found by the Tribunal show the claimant was subjected to a course of conduct by (Newham) and (Mr Abu) which amounted to sex discrimination by way of victimisation after she alleged, and the Tribunal has found she was, directly discriminated against on grounds of sex by (Newham) and (Mr Qureshi). By their conduct the Respondents breached the implied term of trust and confidence between the parties. The Respondent has sought to argue the claimant has waived the breach or breaches of this implied term. It is hard to see when the claimant has waived any breach. She pursued a grievance, she commenced proceedings, and when an attempt to resolve the proceedings broke down and no real effort was made to assist her to return to work she became ill again and resigned when she received the unreasonably delayed outcome of her Stage 3 grievance. The Tribunal finds the claimant was dismissed.
Newham's reaction to the receipt of the second certificate and the amended judgment was to appeal to the EAT on the grounds that the Tribunal had erred in law in issuing the second certificate “that made fundamental changes in the Tribunal's judgment and reasons” as originally promulgated. Other grounds were that the Tribunal had erred in law in finding that the appellant's constructive dismissal was an act of either direct discrimination or victimisation; there were also reasons challenges and an allegation that the Tribunal had not identified the protected act relied upon by the claimant for the purpose of the finding that her constructive dismissal was an act of victimisation. Only the first ground succeeded. The EAT held that, in amending its decision as it had in the second certificate, the Tribunal had gone well beyond what was permitted by paragraph 37 of the Regulations. The EAT allowed the appeal but made no consequential directions.
The appellant filed a cross-appeal relating to her attempts to return to work (issue (xxvi)). In this respect, she was partially successful. The EAT recorded that the Tribunal had made “a detailed series of findings in respect of the comprehensive failure” on the part of the head of human resources in Newham's environmental department “to take any remotely interested steps in attempting to find the appellant alternative work”. The Tribunal had, however, gone on to dismiss the complaint of either victimisation or sex discrimination on the basis that the facts found by the Tribunal did not show a prima facie case of less favourable treatment, although they did show a “depressingly low level of effort put into finding a way back into work for a claimant who made it clear she wanted to get back to work and who was signed off fit to return”.
The appellant asserted that the Tribunal's...
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