St Christopher's Fellowship v Walters-Ennis, Court of Appeal - Civil Division, July 30, 2010, [2010] EWCA Civ 921

Resolution Date:July 30, 2010
Issuing Organization:Civil Division
Actores:St Christopher's Fellowship v Walters-Ennis
 
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Case No: A2/2009/2355

Neutral Citation Number: [2010] EWCA Civ 921

IN THE HIGH COURT OF JUSTICE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

HHJ McMULLEN QC

UKEAT/0412/08/CEA

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 30/07/2010

Before :

LORD JUSTICE MUMMERY

LORD JUSTICE WILSON

and

LORD JUSTICE PATTEN

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Between :

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MS HILARY WINSTONE (instructed by Messrs Trowers & Hamlins LLP) for the Appellant

MR PETER LINSTEAD (instructed by Messrs Thackray Williams) for the Respondent

Hearing date : 18th June 2010

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JudgmentLord Justice Mummery :

The issue

1. The main point in this appeal is whether the statutory burden of proof in a case of alleged direct race discrimination was properly understood and applied by the Employment Tribunal (ET) in accordance with s54A(2) of the Race Relations Act 1976, as amended (the 1976 Act).

2. In their judgment registered on 24 June 2008 the ET, after a seven day hearing, upheld a complaint by Mrs Walters-Ennis (the Claimant) of constructive unfair dismissal and one of her complaints of direct race discrimination. Her former employer, St Christopher's Fellowship, was the respondent. It is a children's charity. It also acts as a housing association providing care, accommodation and support to children, young people and vulnerable adults.

3. On 8 October 2009 the Employment Appeal Tribunal (EAT) dismissed the respondent's appeal. The EAT concluded (paragraph 34) that the ET applied the law correctly to the facts found about the respondent's actions, the detriment suffered by the Claimant by the respondent's treatment of her when she was excluded from the procedure for the recruitment of a member of staff and the reason for such treatment.

4. Liability for unfair dismissal is no longer an issue. The respondent now accepts liability and, at a remedies hearing, it was ordered to pay £28,195.80 compensation to the Claimant. However, the respondent continues to dispute the finding of race discrimination for which it has been ordered to pay compensation of £14,767 (including interest) for injury to feelings. The respondent regards the finding of discrimination as unjustified in fact, erroneous in law and damaging to its reputation as an organisation that works closely with vulnerable children of all races. In particular, it takes seriously the transparency of its recruitment procedures in relation to which the race discrimination complaint has been made.

5. On 24 November 2009 Sir Richard Buxton refused permission to appeal. Rimer LJ granted permission on 18 February 2010 at the oral hearing of a renewed application.

6. The question for this court is this: did the ET misunderstand and misapply the 1976 Act in holding that the Claimant had proved facts from which the ET ``could conclude'', in the absence of an adequate explanation, that the respondent had committed an act of race discrimination in its treatment of her in February and March 2007. The treatment occurred in connection with the recruitment of an administrator at the respondent's Southend Office.

Outline facts

7. In January 2003 the Claimant, who is black African Caribbean, started her own fostering business, Elite Fostering Limited. In January 2006 she sold the business to the respondent. She became its Fostering Manager and had a say in recruitment matters. There were disagreements between the Claimant and the respondent. The Claimant was dissatisfied about the terms on which she transferred her business to the respondent, in particular her profit share.

8. Two other areas of disagreement were about recruitment. The first was in connection with the recruitment of the Claimant's step-daughter, Kayleigh Morrison, who is black African Caribbean. The Claimant's decision to appoint her to a voluntary temporary position of office assistant to the Fostering Team was reversed by the respondent. It withdrew the initial job offer to Ms Morrison for a reason that was not explained adequately or at all to the Claimant. The respondent required that the Claimant should not be involved in the recruitment process for an office assistant or in the line management of her once recruited.

9. The ET found that there was reasonable and probable cause for the respondent to be concerned about a potential conflict of interest, but held that that did not justify the way in which it dealt with the issue. It had not involved the Claimant in informed discussion about its obligations and procedures relating to such potential conflicts of interest.

10. The second area of disagreement arose after the Claimant brought in Ms Margaret Haywood to work as a temporary administrator in the respondent's Southend office. Ms Haywood, who is white, is an ex-colleague of the Claimant. She was not, as the respondent mistakenly believed, a friend of the Claimant. The respondent's senior personnel became concerned about the Claimant's involvement in the appointment process. The respondent's Chief Executive is Mr Jonathan Farrow, who is based at the Head Office in Putney and is white, as are the HR Director, Ms Lynda Morgan, and the Head of Children's Services and the claimant's line manager, Mr Gordon Parker, to whom she complained about her exclusion from the recruitment process of Kayleigh Morrison to an administrative role. The Claimant worked with other staff in Mitcham and at the office of the new fostering operation in Southend.

11. On 14 February 2007 the Claimant discovered that Ms Haywood's post was to be the subject of a formal recruitment exercise. The Claimant objected on the ground that she had just settled Ms Haywood into her post. From 21 to 28 February the Claimant was away on holiday. She returned to work on 2 March. She had been sent an email on 28 February of CVs of candidates for Ms Haywood's post. On 2 March the Claimant obtained clarification that the post was permanent. She encouraged Ms Haywood to apply, which Ms Haywood did on that day. On 5 March Human Resources informed the Claimant that she would not be conducting the interviews for the Administrator for the respondent's Southend office. On 12 March 2007 the Claimant sent a series of emails to the respondent objecting to the recruitment exercise. She commended Ms Haywood's work. The interviews for the post were held on 13 March...

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