Butt v City of Bradford Metropolitan District Council

J U D G M E N T

1. Lord Justice Keene: The applicant, Mr Saeed Butt, seeks permission to appeal from a decision of the Employment Appeal Tribunal ("the EAT"), dated 12th May 2005, by which the President of the EAT, Burton J, dismissed under rule 3.10 of the EAT Rules 1993 a challenge to a ruling that his notice of appeal disclosed no reasonable grounds of appeal. The applicant was seeking to appeal against a decision of an employment tribunal sitting at Leeds which had dismissed his claim of victimisation under the Race Relations Act 1976 ("the 1976 Act").

2. The applicant had been employed by the respondent council as an employment adviser from 24th July 2000. During his employment he had brought complaints of race discrimination against the respondent in 2001 and 2003, both of which were clearly protected acts covered by section 2 of the 1976 Act.

3. The basic facts as found by the employment tribunal about the context of the current claim can be found at paragraph 4(d) of the employment tribunal's extended reasons. This is extensive, but it is helpful to quote it:

"In the summer of 2003 the applicant applied for employment with Calderdale Council. He identified two referees including Mr Noor Meah, senior employment adviser who worked with him at his employment at Manningham. He was offered the post at Calderdale in a letter of 4th September 2003. On the following letter he resigned his employment with the respondent, giving notice. His employment was to terminate on 5th October 2003. On 10th September he handed a copy of his resignation letter to Deborah Scaife who was his line manager. However he refused to have a discussion with her relating to handover of clients and identification of annual leave not taken. Miss Scaife attempted to have a meeting with him about this but he refused and walked out of the room. On 22nd September Miss Scaife attempted to give the applicant a letter relating to the events which had happened on 10th September. He had already received in the previous year (22nd November 2002) a letter from the respondent relating to his unwillingness to act in accordance with his manager's instructions. The applicant refused first to accept this letter or to read it. His explanation to the tribunal was that he anticipated that it was relating to disciplinary matters and therefore did not want to accept it. Miss Scaife had acted quite fairly and professionally whereas the applicant gave no satisfactory explanation for not being prepared to follow a management instruction. On 26th September 2003 he was suspended on full pay following a decision by Mr Cowlam, the head of service."

The tribunal went on to find that suspension was an appropriate action on the part of the employer.

4. However, according to the tribunal, on 17th September 2003 Calderdale Council received an anonymous letter making serious criticisms of the applicant. The tribunal unanimously concluded that the author of this letter was unknown, and, insofar as the applicant had alleged that the author was Miss Scaife, the tribunal unanimously decided that it accepted Miss Scaife's evidence that she had not written the letter.

5. Then an officer of Calderdale Council spoke on the telephone to Miss Scaife and to Mr Cowlam about the applicant. The tribunal found as follows:

"Miss Scaife stated that she knew the applicant. ... His sickness record was not average but extensive as he had done little work over the previous 12 months. There were other management areas of concern including refusal to undertake reasonable management instructions, difficulty to be managed effectively and some refusal to work initially with female clients. When asked whether he was currently working his notice, she indicated yes, but he was under suspension, and when asked whether a further positive reference would be given she stated only for some aspects but definitely not in others."

6. The tribunal continued:

"Mr Cowlam's comment were briefer. He stated that he knew the applicant and that he did have concerns about him. He was suspended from duty ... he would be willing to comment in writing in relation to Calderdale's concerns if they wrote to him."

7. Calderdale Council subsequently withdrew its offer of employment to the applicant. Part of the reasons for that decision was the information provided in the telephone calls.

8. The tribunal rejected the applicant's claim. It considered the House of Lords' decision in The Chief Constable of West Yorkshire v Khan [2001] ICR 1065, and it stated:

"... the tribunal found that there was no less favourable treatment of the applicant compared to a person who had not carried out a protected act. The applicant behaved prior to his suspension in an unprofessional way making himself unmanageable. Miss Scaife had acted throughout totally professionally. The tribunal found therefore that any employee acting in this way, whether he had carried out a protected act or not, would have been treated in the same way by Miss Scaife. ... The respondents were entitled to suspend him within the terms of their disciplinary proceedings. The tribunal found that they would have suspended any employee acting as the applicant did even if they had not carried out a protected act."

9. As for the telephone enquiries the tribunal found:

"... the tribunal found that Miss Scaife and Mr Cowlam had acted professionally and had attempted to answer the questions factually and as far as possible neutrally. Again therefore if there had been similar questions relating to an employee who had not carried out a protected act the tribunal found that similar answers would have been given."

10. Burton J in the EAT upheld this reasoning. He could see no error of law in the tribunal's decision, and, of course, the EAT only has jurisdiction if there is an error of law. It is not there to second guess the findings of fact made by the employment tribunal. Moreover, Burton J also noted that the tribunal had found that, even if there had been less favourable treatment of the applicant, it was not by reason of his doing either of the protected acts.

11. In seeking to challenge the EAT decision Mr Butt puts forward a number of arguments. He has done so more extensively in writing, but he has added to those orally this morning. He has referred, both in writing and this morning, to the case of Khan . He argues that that case is authority for the proposition that reference material cannot be disclosed by an adversary to litigation whilst proceedings are on foot as it would be prejudicial to proceedings because the adversaries to litigation would be in a no win situation. He argues, also, that the tribunal was required to consider whether the applicant was better off without reference material being provided by adversaries to the litigation whilst proceedings were still on foot. He says that in his case he would have been better off without the reference material being provided to Calderdale, and as the tribunal did not consider this the tribunal made a mistake in its application of the principle of law in Khan .

12. He further complains that the tribunal was biased in that it considered that the respondent was entitled to suspend him, whilst at the same time it had no intention of conducting an investigation. This was less favourable treatment as all employees are entitled to an investigation on suspension. He has expanded that this morning to submit that it seems that the statement made on behalf of the respondent to Calderdale, that he was suspended, was factually inaccurate. Moreover, suspension cannot be used as a punishment and should not have been imposed by the respondent authority.

13. I deal, first of all, with the approach which is to be derived from the case of Khan . It seems to me, I am afraid, that Mr Butt has misunderstood the decision in Khan . It is true that in that case the House of Lords concluded that it could be appropriate for an employer to decline to give a reference when the situation of the parties had been altered so that they were now adversaries in litigation. It is not, however, authority for the proposition that an employer must decline to give a reference. It is perfectly open to an employer to give a reference if it chooses to do so. Similarly Khan did not hold that there was an obligation to ascertain whether or not the employee would be better off if a reference were not provided. That was simply a factual comment made in Lord Hoffmann's judgment in that case about the facts of that particular case.

14. As for Mr Butt's point about the absence of an investigation into his suspension, that seems to me to have no chance of success on an appeal. An allegation that there was less favourable treatment because there was not going to be an investigation following the suspension is unsustainable. The only reason there would not have been an investigation was that Mr Butt would have left by the time it would have been completed because he had already given his notice and as such an investigation would have been rendered futile.

15. In order to ascertain whether there had been less favourable treatment for this reason Mr Butt's position would have to be compared not just with that of an ordinary employee, but with that of an employee who had handed in his notice and is leaving within a month. The tribunal's finding that suspension was an appropriate step provides no basis for an allegation of bias against the tribunal. I can see no evidence whatsoever to suggest that this tribunal was biased in the sense in which that word is used in this branch of the law.

16. Finally, some reliance is placed, as I have indicated, by Mr Butt on the possibility that the statements made by the employees of the respondent were factually inaccurate. That, I am afraid, does not matter because the tribunal here clearly found as a matter of fact that the employees of the respondent had not acted because Mr Butt had done a protected act in the past. That finding is one which was open to them on the evidence and it is fundamental to a claim for victimisation that the claimant can establish that he was treated less favourably because he had done a protected act in the past. The same is true about Mr Butt's comments as to whether suspension could be used as a punishment or not. The fact is that he was suspended. The answers were given honestly, as the tribunal found, by the employees, and were not connected to the fact that he had done a protected act in the past.

17. In all those circumstances I am afraid that I can see no prospect of a successful appeal in this case against the decision of the EAT. For that reason this application must be dismissed.

ORDER : Application dismissed. Request for a copy of the judgment at public expense refused.