Burrell v Micheldever Tyre Services Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay,Lady Justice Black,Lord Justice Treacy |
| Judgment Date | 23 May 2014 |
| Neutral Citation | [2014] EWCA Civ 716 |
| Date | 23 May 2014 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2013/0730 |
[2014] EWCA Civ 716
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
THE HON MR JUSTICE MITTING, MR JENKINS, MR LEWIS
UK EAT 0368 & 0427/DM
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Maurice Kay
Vice President of the Court of Appeal, Civil Division.
Lady Justice Black
and
Lord Justice Treacy
Case No: A2/2013/0730
Marcus Pilgerstorfer (instructed by leonard & Co) for the Appellant
Alice Mayhew (instructed by Thomas Eggar Llp) for the Respondent
Hearing date: 11 March 2014
The point of law raised on this appeal is a narrow one. The Employment Appeal Tribunal (EAT) identified an error of law in the judgment of the Employment Tribunal (ET) in relation to Mr Burrell's victimisation claim. However, rather than remit the case to the ET for further consideration on the basis of a corrected understanding of the law, the EAT made its own decision on victimisation and took away from Mr Burrell the success which he had obtained in the legally flawed decision of the ET. His complaint on this appeal is that it was an error of law on the part of the EAT to dispose of the case in this way without remittal. If (but only if) he is right about that, Mr Burrell further complains that the EAT ought also to have remitted his unfair dismissal case to the ET. Appeals to this court about the failure of the EAT to remit following the identification of an error of law on the part of the ET are not uncommon. I shall refer to the jurisprudence later.
First it is necessary to summarise the factual background and the procedural history.
The facts
Mr Burrell was employed as a tyre fitter by Micheldever Tyre Services Ltd (the Company) from 11 November 2008 until he was dismissed on 28 July 2010. He is black. The company has branches in various parts of the country. Two are at Micheldever and Fareham. Mr Burrell worked at the Fareham branch where he was the only black employee.
In the early months of his employment, Mr Burrell was the subject of racial banter. The ET found that Mr Burrell tolerated this and reciprocated at least until September 2009. Up until then the exchanges had been seen as good natured. From September 2009 Mr Burrell's attitude changed and he made a complaint to his line manager, Mr Wright. On 11 September, Mr Wright called a meeting and made it clear to all employees that the banter should stop. In October 2009, Mr Burrell told Miss Shore, the human resources manager, that he did not find the racial banter amusing. He was then off sick for a time with a viral illness. When he returned on 3 November, he had an interview with Mr Wright which ended in an argument leading to Mr Burrell being sent home. He returned to work on 5 November and stated that he was unhappy about the racial abuse. He was told that he should raise a grievance if he so wished. He did so on 11 November. On 16 December he wrote to Miss Shore complaining of bullying, harassment and discrimination. No steps were taken to investigate his grievance until the end of January 2010. Miss Shore finally wrote to Mr Burrell on 18 February 2010 by which time he had again gone off sick, this time due to stress.
Miss Shore's conclusion was that Mr Wright's instruction that the banter and abuse should cease had been ineffective. She considered that Mr Burrell and his colleagues had all engaged in unacceptable behaviour. Having spoken to the Area Manager, she asked him to hold a meeting at Fareham to which all the staff would be invited and at which the Area Manager would tell them that such conduct must cease. However, the meeting never took place. Mr Burrell appealed against Miss Shore's decision. A grievance appeal meeting took place on 15 April 2010, conducted by Mr Harley. He dismissed the grievance appeal for reasons set out in a letter dated 24 May 2010. At that stage the grievance procedure came to an end. Even before then, on 6 April 2010, Mr Burrell had submitted the first of his two applications to the ET.
On 8 June 2010 Mr Burrell unexpectedly returned to work. The following day he was given two weeks paid leave and he agreed that ACAS should be involved in trying to mediate and resolve the differences which had arisen. However, Mr Burrell later withdrew his agreement to ACAS's involvement. The second grievance process appears to have been initiated but it is not clear what became of it.
On 25 June 2010, the Company wrote to Mr Burrell suggesting that he return to work not at Fareham but at the Micheldever branch. This proposal was discussed with him on 29 June. On 2 July the proposal was repeated in writing and it was stated that Mr Burrell could choose to work as either a tyre fitter or a mechanic at Micheldever. The Company considered that the travel time and costs in relation to Micheldever were the same as for Fareham but offered to subsidise any additional costs incurred by Mr Burrell. All this was discussed with Mr Burrell on 13 July but he refused to go to Micheldever. His contract of employment provided for a power to relocate him to an alternative place of work. On 15 July, he was again told of the Company's wish to relocate him and that, if he continued to refuse the location, consideration would be given to terminating his employment. The Company maintained that a return to Fareham was not realistic given the past history. On 20 July, the Company reiterated its position but Mr Burrell continued to insist that he return to Fareham. On 21 July, the Company wrote to Mr Burrell stating that his place of work was being changed to Micheldever and instructing him to attend there on 23 July. He was told that failure to do so would be treated as a disciplinary matter likely to lead to his dismissal. He did not attend on 23 July. There was another meeting on 28 July when he was dismissed by Mr Harley. An internal appeal against that decision was later rejected.
The decision of the ET
Following a hearing which lasted several days, the ET decided that Mr Burrell's complaints of direct race discrimination and victimisation should succeed but his claim of unfair dismissal failed. The case was adjourned for a remedies hearing. The ET dealt with victimisation at paragraph 41 of its judgment. The material parts read as follows:
"It is accepted by the Respondents that the Claimant's grievance amounts to a protected act within section 2(1) Race Relations Act 1976. In order to determine whether there has been less favourable treatment, the statute calls for a simple comparison between the treatment afforded to the complainant who has undertaken the protected act, and the treatment which was or would be afforded to other employees who have not done the protected act. The reason or motive for that treatment is immaterial, at least as far as the issue of liability is concerned. Applying that test, it is plain that at least part of the reason for the Complainant's proposed relocation from Fareham to Micheldever was because of his having raised a grievance (the protected act in question) which involved allegations against his Fareham colleagues. As a result, it was proposed to move the Claimant from his existing place of work, whereas his colleagues who had not raised any such grievance were to remain where they were. That must, it seems to us, amount to less favourable treatment. Accordingly the victimisation claim must succeed. We should say at this point for the avoidance of doubt that we do not find the Respondents' actions in proposing to relocate the Claimant to amount to what is popularly misunderstood as being victimisation, in the sense that the Respondents were only proposing the move in a cynical attempt to try to get rid of the Claimant. We do not accept that. We do accept that the Respondents were (to a considerable extent of their own making) in a very difficult position in the early summer of 2010 in seeking to ensure the Claimant's return to work at Fareham, and that what they proposed was, we accept a reasonable, and arguably the best, solution that they could come up with. That too may be reflected in the compensatory award, but it does not impact on the issue of liability. Additionally, we do not accept the suggestion that the Claimant was dismissed as a direct result of victimisation. In the circumstances of this case, that seems too remote a consequence, and the dismissal resulted from the Claimant's refusal to countenance any alternative but to return to the Fareham depot. As we make plain hereafter, we find the suggested relocation was neither unfair nor unreasonable."
In the following paragraph the ET referred to:
"The great difficulty involved in integrating him back to work at Fareham and the risks involved in so doing for both the Claimant and his colleagues."
It repeated that it considered it reasonable for the Company to seek to relocate Mr Burrell in accordance with its contractual right to do so. It concluded that the reason for his dismissal was "his unreasonable refusal to move" which was "some other substantial reason" within the meaning of section 98 (1) (b) of the Employment Rights Act 1996. It was satisfied that the Company had adopted a fair procedure and that, overall, the Company had acted reasonably in treating Mr Burrell's refusal to relocate as a sufficient reason for his dismissal.
The judgment of the EAT
The legal error identified by the EAT was that the ET had misdirected itself as to the law in paragraph 41 of its judgment because it was not sufficient simply to compare what has happened to someone who has...
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