Bird v Sylvester & Anor

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:

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:

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:

It is unnecessary, with respect, to refer to the decision of the Employment Appeal Tribunal. It should by now be elementary that appeals to this court from the EAT’s decision on appeal from the employment tribunal constitute, absent special circumstances, a further appeal from the employment tribunal itself.

There is one other matter to which I should refer before I confront the merits of the appeal. It is important to bear in mind that, as their Lordships’ House held in Anyanwu [2001] Industrial Cases Reports 391, a strikeout should only be ordered in a discrimination case where the case is plain and obvious. The reason is that matters of this kind are inevitably fact-sensitive. I of course bear that in mind; and doing so, I turn to deal with the appeal relating to the case against the first respondent. It is submitted for the appellant by Mr Donavan of counsel that the first respondent’s conduct in mounting and pursuing a costs application and giving instructions for the letter of 3 October 2005 was oppressive and overbearing. The costs claim was substantial. The appellant was on the statutory minimum wage. The threat of costs and the terms of the offer of compromise could be seen as an attempt to get rid of the appellant as an employee (who, as I have said, had been off sick since October 2004) at relatively little expense.

The argument was crystallised into a single submission of law in Mr Donavan’s first skeleton argument, where it was said that the employment tribunal failed to direct itself in accordance with the decision of this court in Derbyshire & others v St Helens Metropolitan Borough Council (CA) [2006] Industrial Cases Reports 90. Had it done so, said Mr Donavan, the employment tribunal would have asked and answered the question whether the first respondent’s relevant actions went any further than an honest and reasonable attempt to defend his interests. But the employment tribunal did not ask that question; at any rate not in terms. They did not refer to the Derbyshire case. Mr Donavan’s argument however has had to be refined, because on 25 April 2007 their Lordships’ House reversed this court’s decision in Derbyshire. Their Lordships’ reasoning drew particular attention to the notion of detriment in discrimination law. As it appears in that case in section 6(2)(b) of the Sex Discrimination Act 1975, here section 4(2)(c) of the Race Relations Act. It was held (see the head note 841F - G) that the question whether the relevant detriment had been suffered by an employee was:

Plainly, the appellant in this case could not longer sustain a case based simply on the employment tribunal’s failure to refer to an honest and reasonable test. But it is submitted that the employment tribunal’s reasoning in paragraph 22, which I have read, fails to consider the case from the appellant’s perspective, that is, the perspective of the alleged victim, and this is contrary to the reasoning of their Lordships in the Derbyshire case. The discussion by the employment tribunal of the normal conduct of litigation looks at the matter impermissibly, so it is said, from the employer’s point of view.

I have concluded, for my part, that these criticisms are misplaced. The 3 October 2005 letter was a perfectly reasonable and proper act in the context of the case. A reasonable employee -- and he or she is the notional determinant of such an issue, following their Lordships’ decision in Derbyshire -- would not have concluded that the first respondent’s stance on costs offered any detriment beyond what was properly involved in the honest and reasonable conduct of the first respondent’s case. That is implicit in the employment tribunal’s reasoning, though I certainly accept it is not expressed in that way. There would, as I see the matter, simply be no room for any other conclusion in the mind of the notional reasonable employee.

It is moreover, with respect, helpful I think to recall this passage from Lord Neuberger’s opinion in Derbyshire at paragraph 69:

In addition it seems to me useful to recall these words of Lord Hoffman in the earlier authority to which Lord Neuberger there referred namely, Khan [2001] Industrial Cases Reports 1065 at paragraph 59:

I may break off there. In all these circumstances, it seems to me that the employment tribunal were right to strike the case out as against the first respondent in relation to that part of the claim which concerned the costs issue. There simply was no room here, on any permissible view of the facts, for a conclusion that there was or might have been victimisation.

I turn to the case against the second respondent. Necessarily, if my lords agree with my conclusions in relation to the first respondent, the only part of the case that is left relates to any part played by the second respondent in the threat or institution of disciplinary proceedings against the appellant. Now, it is accepted that a party who gives information to another, upon which that other then relies in performing an unlawful discriminatory act, might attract liability under section 33.(1) of the 1976 Act (see Hallam and Another v Avery and Cheltenham Borough Council [2001] Industrial Cases Reports 408). But it is important to see exactly what has to be proved. As Lord Bingham stated in Hallam at paragraph nine, citing the first instance judge below, section 33 requires the alleged secondary party:

The facts of Hallam involved an allegation that police had given information to a local authority which led the authority to impose onerous conditions on a booking of council premises for what was described as a “gypsy wedding”. Lord Millett said this:

In this case, the second respondent’s solicitors provided a detailed letter of advice to the first respondent, dated 19 September 2005, and it is certainly to be inferred that they advised him on other occasions. Privilege in the letter has been waived. It is before us as I understand it to have been before the tribunals below. It deals among other things with the possibility of making an application for costs against the appellant, but I need not refer to that. The relevant passages for present purposes are these: page three of the letter under the heading ‘Disciplinary Hearing’:

It is clear beyond the possibility of rational contest that the decision to take disciplinary proceedings was and was only, that of the client, the first respondent. The second respondents did not participate in the decision as such. They advised that such proceedings should be taken. They may have so advised in emphatic terms. Sections from the solicitor’s witness statement in these current proceedings, relied on by Mr Donavan this morning, certainly suggest that that is so. But they do not, to my mind, begin to demonstrate that the decision to take disciplinary proceedings was in any sense the decision of any person or party other than that of the first respondent himself. On the authority of Hallam, it seems to me plain that the second respondent’s role as an adviser cannot render him a participant, an actor, an aider within section 33.

What remains? The solicitors wrote letters to the appellant’s advisers, and to the appellant herself, on behalf of their client the first respondent. One letter was dated 27 January 2006, and Mr Donavan has relied on it. The letter, I should say, is to the appellant herself. Under the heading “Your conduct”:

It is perhaps worth noticing that this letter is in reply to two letters written apparently by the appellant herself to the first respondent. The employment tribunal, as I have shown, used the term “conduit” in relation to the actions of the solicitor, and it is plain that the solicitor was doing no more nor less than acting on his instructions. Those instructions followed, no doubt, a decision taken by the first respondent that was itself informed by advice given by the solicitors. The question is whether it is in truth arguable that such action taken by the solicitor, and not least the letter to which I have just referred, can be said to amount to aid within the meaning of section 33 of the Race Relations Act. In my judgment the alleged act of victimisation, the threat or institution of disciplinary proceedings, is necessarily the act of the principal, the first respondent. The execution by the solicitor of his client’s instructions in the matter is not, as I see it, something that is properly to be treated as aiding in the particular context of section 33. That, I think, would prove too much and distort the operation of the statute. It would engage liability upon the shoulders of a solicitor in any case where, though for his part he was doing nothing more than acting on his instructions, those instructions involved some decision by his principal that might offend the discrimination provisions in the Race Relations Act and the Sex Discrimination Act.

The employment tribunal were plainly impressed by public policy considerations. I have considered whether by force of the public interest in the integrity and effectiveness of the solicitor-client relationship, the court should go so far as to hold that a solicitor acting within the terms of his retainer can never be liable under section 33. But I doubt whether that is so. Extreme situations may be envisaged in which the solicitor himself actively promotes, perhaps for a malign motive, oppressive actions, and actively carries them along. I would, however, suggest that it is very difficult to see how a solicitor who confines himself to giving objective legal advice in good faith as to the proper protection of his client’s interests, and acts strictly upon his client’s instructions, could be at risk of an adverse finding under section 33 of the Race Relations Act. Something more than that, as it seems to me, is required if a person is to be shown to have knowingly aided an unlawful act within the meaning of that sub-section. I accept, and Mr Donavan has laid some emphasis on this this morning, that the employment tribunal did not, on this part of the case, analyze the documentary evidence; and it may be that they considered that a solicitor can never be liable under section 33 -- a proposition which, as I have just indicated, I would not for my part accept. At all events, I am clear that the tribunals below were right to exonerate these solicitors and to do so by acceding to the application to strike out the claim against them, even though that is rarely the proper course (see Anyanwu).

The circumstances here are unusual. The case will proceed against the first respondent in relation to the disciplinary aspect. That, it seems to me, is the proper reach of any claim that now remains. The employment tribunal, as I have shown, referred to the possible difficulties of proof in a claim brought against solicitors, difficulties that might arise by virtue of the impact of legal professional privilege. The issue is moot in this case because privilege was waived. I need say no more about this aspect than that, perhaps, it illustrates the unlikelihood of viable proceedings under section 33 being properly available against a firm of solicitors.

For all the reasons I have given, I would dismiss the appeal.

I agree.

I also agree.