England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

		Royal Courts of Justice Strand London, WC2
		21 November 2006

1. LORD JUSTICE MAY: Saeed Vaseghi, the Respondent, is a professor in the Department of Electronic and Computer Engineering at Brunel University. He is of Iranian origin who joined the University in January 2000, having previously been employed at Queen's University, Belfast.
2. In February 2002, he brought a claim against the University for racial discrimination in the Watford Employment Tribunal. In February 2003, terms of settlement of this claim were agreed. In May 2003, he received the result of his first Performance Review, in which he was given the lowest rating of 1 out of 5. In consequence he did not get a pay rise. Conclusions of the review included that although his standard of academic achievement was reasonable, he demonstrated a lack of research leadership and did not have a good record influencing colleagues.
3. He was also criticised for abusing the University's email system by sending inappropriate and highly contentious emails. In a letter of 19 June 2003, Professor Paul, the Dean, wrote that he had received 46 emails or copies of emails from the Respondent since February of that year. Professor Paul wrote that the Respondent was a man of great talent, whose delivery was blighted by what appeared to Professor Paul to be something similar to a persecution complex.
4. The Respondent appealed against his grade 1 assessment. A panel of three professors decided to increase the grading from grade 1 to grade 2. Meanwhile, disciplinary action was taken against the Respondent and there was a disciplinary hearing presided over by Professor Thomas. She found that two charges against the Respondent were established: disgraceful and offensive behaviour towards colleagues, and repeated breach of the University's email policy. The Respondent was given a written warning.
5. In response to complaints from members of staff, the University carried out an investigation into alleged abuse of their email policy. The Respondent's emails were searched, opened and investigated. Professor Newbold reported on this in a letter dated 1 December 2003. Among the emails that were looked at were emails written to his union. The conclusion was that he was continuing to abuse the email system and disciplinary action was recommended. The Respondent believes that the University had previously declined to search the emails of white colleagues when allegations of racism had been made against them. His view is that he was not accorded equivalent respect for his privacy and so was treated less favourably on grounds of race. He also considered that there was unlawful interference with his right to communicate with his union.
6. Arising out of these and other matters, the Respondent brought a claim against the University in the Employment Appeal Tribunal at Watford. Essentially his claims were: first, that the University had on racial grounds treated him less favourably than they treated or would treat others in relation to his employment, contrary to Sections 1(1)(a) and 4(2)(c) of the Race Relations Act 1976; second, that they discriminated against him by way of victimisation because he had previously brought proceedings against them contrary to Section 2 of the 1976 Act; and third, that they subjected him to a detriment on grounds related to his union membership or activities, contrary to Section 146 of the Trade Union and Labour Relations Consolidation Act 1992.
7. The Employment Tribunal held a hearing with oral evidence. The hearing lasted five days. The Tribunal gave its reserved decision on 7 July 2004, unanimously dismissing the Respondent's claims. It held that no form of racial discrimination had been shown to have been practised against him. Where the burden lay on the University to provide an explanation for any particular act, the Tribunal had in each case been able to accept that explanation. They decided that the Respondent had not been victimised. They accepted a submission on behalf of the University that the Respondent should not be able to write dismissive and disrespectful emails and then make himself immune from censure by incorporating within the email a complaint of discrimination.
8. The Tribunal's unhappy conclusion was that the Respondent has an acute difficulty in suppressing the notion that all frustrations encountered by him in his everyday work had their source in racial prejudice against him. The Tribunal did not find the complaint under Section 146 of the 1992 Act made out. There was, they said, no detriment. If that were wrong the Tribunal would not have found the required motive in the University. They found that the University had not acted for any of the three purposes in Section 146 of the 1992 Act (see Section 146(i)).
9. The Tribunal have addressed and found the facts at much greater length than I have briefly summarised. For present purposes a more extended account of the facts is not needed.
10. The Respondent appealed the Tribunal's decision to the Employment Appeal Tribunal by Notice of Appeal dated 20 August 2004. There were five grounds of appeal. Ground 1 contended that the Tribunal made an error of law and applied a wrong legal test when considering the Respondent's claims of less favourable treatment on grounds of race and his victimisation claim. I shall return to this ground later in this judgment. Ground 2 concerned Professor Paul's letter of 19 June 2003. It was contended that the Tribunal had made an error of law or reached a perverse decision that it was a reasonable and even a friendly letter to have written. Ground 3 concerned the final written warning of 3 July 2003, again contending that there was an error of law or that the Tribunal's decision was perverse. Ground 4 concerned the email search, again saying that the Tribunal's decision was perverse. Ground 5 contended that the Tribunal had failed to give adequate reasons.
11. On 7 October 2004, HHJ McMullen QC in chambers in the EAT gave directions which included that the appeal should be set down for a full hearing confined to ground 1 of the Notice of Appeal and that further directions as to the remaining grounds would be given after the hearing. On 8 December 2004, the Employment Appeal Tribunal, presided over by the then President, Burton J, heard and determined ground 1 and a further ground arising out of ground 5 which Burton J had shortly before the hearing invited the parties to deal with. I shall refer to this hearing and determination as that of the first Employment Appeal Tribunal.
12. Ground 1 arose out of paragraph 8.2 of the Tribunal's decision, which was in these terms:

"The Tribunal has had careful regard to the authorities cited to it in relation to the Applicant's allegations of victimization. It notes the case of Nagarajan v London Regional Transport [1999] IRLR 572 where the Court of Appeal held that in order for there to be discrimination by way of victimization within the meaning of Section 21, the protected Act must constitute the 'reasons' for the less favourable treatment. The discriminator must have a motivation consciously connected with the Race Relations legislation."

13. The well-founded objection to this, which was accepted on behalf of the university, was that this in substance ignored the fact which had been plainly drawn to the Tribunal's attention, that the Nagarajan case had been appealed to the House of Lords, where it was held that the Court of Appeal had misconstrued Section 2(i) of the Race Relations Act. The case reference in paragraph 8.2 of the Tribunal's decision is to the House of Lords decision, but the following text derives from the Court of Appeal's decision which the House of Lords by a majority overruled. The motivation of an alleged discriminator under Section 2(1) of the 1976 Act is not confined to one which is consciously connected with racial matters, but may also be subconsciously so connected; see for example the opinion of Lord Nicholls of Birkenhead in paragraph 17 of the judgment.
14. It was submitted to the first Employment Appeal Tribunal that this error was immaterial. The Employment Appeal Tribunal did not agree. Burton J giving the judgment of the Employment Appeal Tribunal said in paragraph 15:

"We are not persuaded by that argument and we cannot say that this Tribunal might not have reached a different conclusion if it had addressed the question of unconscious discrimination. We feel it possible that Mr Vickery may be right, but we cannot tell, and it must be right for the issue of unconscious discrimination to be addressed in terms, in the way this Tribunal in terms said it was not doing."

15. The Employment Appeal Tribunal accordingly decided that this matter should be remitted to the same Tribunal for reconsideration. The second matter which the first Employment Appeal Tribunal considered related to the Trade Union claim. They held that the Tribunal had been wrong to conclude that there was no detriment: the Respondent being subjected to a disciplinary process was a detriment. There was however a further submission, that the Tribunal had not sufficiently grappled with the facts nor given adequate reasons for this part of the decision. Paragraphs 27 to 29 of the first Employment Appeal Tribunal's decision are as follows :

"Those submissions or questions raised included matters such as asking who complained about the Applicant's e-mails and when; on what basis it was said that the e-mails were inappropriate; consideration of the total number of complaints; why the e-mail search went beyond the parameters originally set by Professor Schwartz; and whether, and why, it accepted the Respondent's case that the Applicant had spent a 'disproportionate amount of time' sending e-mails. None of those matters appear in the Tribunal's decision. It is simply stated as a fact that some of the e-mails that were searched related to the Applicant's trade union activities and the conclusion reached that none of the prohibited motives were found to exist.

"Mr Vickery has not sought vigorously to contest his own suggestion in the Respondent's Answer, to which we have referred, that there be a referral under Burns v Consignia in this regard. He does not accept that there was inadequate reasoning, but in his submission the best way of putting the matter beyond doubt is for the Tribunal, while the matter is being referred back to them, to flesh out its own reasoning, and to give the reasons for which the Applicant asks, or at any rate, sufficient of them to show why it reached the conclusion it did.

"We accept that good sense. Consequently, we shall refer the matter back under Burns v Consignia to ask the Tribunal to give the fullness of its reasoning as to why it was satisfied that the setting up and conduct of this disciplinary inquiry into the use of e-mails, was not for a prohibited purpose, under section 146, addressing as many of the Applicant's submissions as it considers material. Of course, there is no obligation for a Tribunal to address every one of Counsel's submissions which may or may not be helpful to it; but in this case it will at least be necessary for the Tribunal to summarize what the evidence was as to the investigation, both as to its intent and to its conclusion, in order to show, over and above the fact that it was incumbent upon the University to set one up, why it is that the Tribunal is satisfied that section 146 is not breached."

16. The first Employment Appeal Tribunal accordingly made the following order, page 65 of the bundle :

"The Tribunal orders that this appeal be stayed for 56 days from the seal date of this order to allow for the reference to the Employment Tribunal of the following questions, to be answered by reference to its Notes of Evidence (and no additional evidence) but with the assistance (if so advised) of additional written submissions from the parties:

(i) whether there was less favourable treatment of the Appellant's sub consciously motivated by unlawful discrimination

(ii) what were its reasons for concluding that the detriment to the Appellant of the setting up or conduct of the email enquiry was not motivated contrary to s146 of the TULCRA 1992.

"The Tribunal should feel free if so advised to review its decision of its own initiative, but is otherwise requested, if at all possible, to answer such questions within the said 56 days. The matter will be restored for further consideration on the paper by 7 February 2005 as to whether and if so on what basis this appeal will be restored."

The balance of the appeal, that is to say grounds 2, 3, 4 and part of 5, was adjourned.

17. On this remission the Tribunal responded in writing on 16 March 2005. It is suggested and seems likely that although the Tribunal had the first Employment Appeal Tribunal's order and further submissions from the parties, they did not have a transcript of Burton J's judgment including his guidance on how they might proceed. The Tribunal's response was as follows, page 103:

"The Chairman and members of the Employment Tribunal whose decision is the subject of the above Appeal met on 3 March 2005 to consider by reference to its notes of evidence (and no additional evidence) but with the assistance (if so advised) of additional submissions from the parties, the questions posed by the Employment Appeal Tribunal pursuant to its Order staying the appeal dated 8 December 2004 as amended by its further Order dated 14 February 2005. Both upon the occasion of its consideration of the questions and in advance of that consideration the chairman and members read the parties' additional submissions.

"Question (i): Whether there was less favourable treatment of the Appellant subconsciously motivated by unlawful discrimination:

"Answer: The Tribunal had found no less favourable treatment of the Applicant subconsciously motivated by unlawful discrimination. All three members of the Tribunal clearly recall that during its consideration of the case over a period of some five days they were fully aware of, discussed and rejected the possibility of a finding subconsciously motivated discrimination as submitted by the parties and in the light of dicta in the authorities of Nagarajan v London Regional Transport [1999] IRLR 572 HL and Law Society v Bahl  [2003] IRLR 640 EAT.

"In reaching its conclusion on the absence of subconsciously motivated unlawful discrimination it was particularly mindful of the comments of Elias J in Bahl at paragraph 176 as urged upon it by the Respondent in its final submission and again cited in its 'Review Submissions'.

"Regrettably the Tribunal's actual conclusion upon the question of subconsciously motivated discrimination as above set out was not specifically reflected in the Tribunal's written decision. The reference to Nagarajan was, through the chairman's error, a reference to the decision of the Court of Appeal and not to that of the House of Lords when it had been to the latter that the Tribunal had directed itself during its discussion upon the possibility of a finding of subconsciously motivated discrimination.

"Question (ii): What were the Tribunal's reasons for concluding that the detriment to the appellant of the setting up or conduct of the email inquiry was not motivated contrary to Section 146 of TULCRA 1992?

"Answer: The Tribunal's reason for concluding that any detriment to the Appellant from the setting up or conduct of the email inquiry was not motivated contrary to Section 146 of TULCRA 1992, was because of its acceptance of evidence that the Respondent had a reasonable concern that the Applicant was continuing to abuse the Respondent's email system despite a previous warning in that regard. This reason did not, additionally, appear to the Tribunal upon the evidence, in particular that from Mr Dempster, to be linked to any of the protected Acts set out at Section 146".

18. As to the invitation to the Tribunal to review its decision on its own motion, the Tribunal stated that it had had difficulty in concluding that a review should be held on the grounds that the interests of justice required such a review as required by Rule 34(c) -- the other possible grounds clearly not applying. They did not accordingly do so, but they offered to consider doing so if the Employment Appeal Tribunal suggested that they should.
19. On 26 April 2005 Burton J directed that all grounds of the Appeal should be set down for a full hearing. That hearing took place before a second Employment Appeal Tribunal presided over by HHJ Pugsley. The outcome, by order dated 3 November 2005, was that the Appeal was allowed and the matter remitted for rehearing to a differently constituted Employment Tribunal.
20. Against that order the University appeals to this court, having been given permission to do so by Sir Peter Gibson. In giving permission to appeal, Sir Peter Gibson wrote that this is a troubling case. I agree that it is a troubling case. One main reason for being troubled is that a full rehearing in 2007, as it would have to be, so long after the main events and when, as we are told, Professor Paul will probably be unable to give evidence through illness, will be very expensive, disproportionately so, Mr Vickery submits, when the Respondent is still employed by the University and has, he suggests, suffered no financial loss.
21. The second Employment Appeal Tribunal allowed the Appeal upon consideration of the two matters which the first Employment Appeal Tribunal had remitted and in the light of the Tribunal's response. Although the other grounds of appeal were formally before the second Employment Appeal Tribunal, they did not need to address them and did not do so. The other grounds have therefore never been determined. They are nominally before this court by means of a Respondent's Notice in support of the conclusion of the second Employment Appeal Tribunal. I say "nominally" because I do not consider that this court should, or could, determine the substance of these grounds when they have never been determined by an Employment Appeal Tribunal. There is thus no basis for this court to say that the decision of the Employment Appeal Tribunal, in this respect, is right or wrong, even though our main concern is whether the Employment Tribunal was right or wrong.
22. Further, the submissions in relation to these unconsidered grounds raise questions of evidence and fact which cannot fully be gleaned from the Employment Tribunal's decision taken alone. If we were to allow the Appeal, we should accordingly have to remit the matter to the Employment Appeal Tribunal to consider and determine these other grounds.
23. The judgment of the second Employment Appeal Tribunal quoted at length from the judgment of the first Employment Appeal Tribunal and then recorded, as I have done, the response of the Tribunal. HHJ Pugsley then said this, starting at paragraph 6 of that judgment on page 38:

"The fact that in its first Decision, there was no hint of the claim made in the second decision but all three members of the Tribunal clearly recall that they were fully aware of, discussed and rejected the possibility of a finding of subconsciously motivated discrimination, as submitted by the parties in the light of the dicta of the authorities in Nagarajan v London Regional Transport [1999] IRLR 572 HL.

"We say right away that we are not challenging the integrity of the members of the Tribunal, but we have to say that in all the circumstances of this case, we are extremely uncomfortable by a decision which does not focus on the issues raised in the House of Lords, being in any shape or form set out in the first Tribunal, nevertheless being assured that those matters were considered. The old adage about justice not only being done but seen to be done, in our view does apply, and all we can say is that we really do not feel that if we were litigants, we would feel that the matter had been properly considered. There is no reference at all in the first decision to subconscious motivation, and in view of the patent misdirection, we consider that this decision must be regarded as fatally flawed on the basis of the old adage that justice must not only be done but be seen to be done.

"There is no trail of reasoning in the second judgment which enables an applicant to see how it was that there was no subconscious motivation in respect of the victimisation complaints in its judgment of 16 March 2005."

24. Then skipping to paragraph 10:

"We cannot rewrite history, but if it had been the case that the Tribunal examining the judgment of the Employment Appeal Tribunal in this case had said, if it had been the case, 'we got it wrong, we misdirected ourselves, we have now reconsidered it and we still find there was no subconscious motivation' and had then proceeded to give its reasons for that finding, then it is difficult to see how the Tribunal could have been criticised, but the converse to say 'we did consider it' when that does not surface means that even if that is the case, the integrity of the system is called into question."

25. As to the Trade Union point arising from Section 146 of the 1992 Act, the second Employment Appeal Tribunal said that the Tribunal's second judgment was sparse and did not meet the concerns in paragraphs 27 and 29 of Burton J's judgment. It was difficult to see from the way the Tribunal had dealt with the matter that it had done justice to the arguments before it. The decisions were fundamentally flawed; the parties were left not knowing why they had won and why they had lost.
26. The university's written grounds of appeal included a ground that the decision to remit to a different Tribunal for a fresh hearing was disproportionately wrong. I have already indicated that I am troubled by that. However, we have recently been told that the Chairman of the Employment Tribunal who heard the case no longer sits in the Employment Tribunal, and that one of the lay members has retired. In the light of this, the university no longer seeks remission to the same Tribunal if it does not succeed on its appeal.
27. It is first, however, said that the explanation of the Tribunal on its review cured the original apparent misdirection with its mistaken reference to the Court of Appeal decision in Nagarajan. It is then said that the Employment Tribunal adequately explained why the Respondent failed on his Section 146 claim. As to the Nagarajan point, the submission is that the second Employment Appeal Tribunal did not challenge the integrity of the members of the Tribunal. This can only mean that the Employment Appeal Tribunal accepted that the explanation they gave was true. With this explanation the Tribunal in fact applied the correct law and the decision should be read by substituting for the reference to the Court of Appeal and its decision, reference to the House of Lords and its decision. Thus there was no error of law and justice has been done. It is suggested that there is no assault on the integrity of the system. The Employment Tribunal accepted the university's explanation for its treatment of the Respondent that it had not discriminated against him. This would encompass both conscious and unconscious discrimination. Accordingly the explanation that they did consider subconscious discrimination is sufficient. The question of subconscious discrimination would never have arisen if there had been no direct or indirect reference to it.
28. As to the Section 146 point, the Employment Tribunal had been wrong about detriment, but the first Employment Appeal Tribunal had dealt with that and had concluded that the Employment Tribunal may not have given adequate reasons for its alternative conclusion that none of the purposes in Section 146(1) of the 1992 Act were present. The Employment Tribunal did not, it is said, have the benefit of Burton J's judgment with its guidance about how they might proceed. The second Employment Appeal Tribunal dealt with the matter shortly, referring to two authorities which concerned what was detriment, which was not what the Employment Tribunal was asked to reconsider. The Employment Tribunal's further explanation should, in these circumstances, be seen as sufficient. They found that the disciplinary proceedings had been instituted because of complaints received and because of the history of the Respondent abusing the email system, not for matters relating to the Trade Union. The facts including Professor Newbold's report did not in truth, on investigation, give rise to any case under Section 146.
29. Sir Peter Gibson in giving permission to appeal wrote that it was properly arguable that the answer given on the Section 146 point provided a sufficient explanation of the Employment Tribunal's alternative decision, despite its lack of detail. In my judgment it was a bare bones explanation. The Employment Tribunal's original decision as a whole was, I think, generally quite adequate in its narrative primary fact finding, but short on its decisive fact finding in matters which were importantly in issue.
30. Burton J referred to the decision as conclusory, which I understand to mean that the decision at critical points states short factual conclusions without discussing at any length competing reasons why the conclusions should or should not be reached. While each case depends on its own facts and circumstances, this may well be adequate in a particular individual case (see generally English v Emery Reimbold & Strick Ltd [2003] IRLR 710) but scarcely, I think, when a question has been remitted for further consideration in the terms of Burton J's judgment in the present case. If this matter stood alone and if indeed the Employment Tribunal did not have a copy of Burton J's judgment, it might in theory be sufficient, though unusual, for the matter to be remitted to the same Tribunal, assuming, which is not the case, that the same Tribunal could be reconstituted. In the circumstances, however, I am not persuaded that the reasoning supplemented by the answer in the review, and in particular in the light of Burton J's judgment, was sufficient.
31. However, the section 146 matter does not stand alone. On the subconscious discrimination point, Sir Peter Gibson wrote that it is far from clear how the last sentence of paragraph 8.2 of the Employment Tribunal's decision is to be reconciled with the explanation now given in answer to Question (i). It will be recalled that the last sentence stated:

"The discriminator must have a motivation consciously connected with the race relations legislation."

32. This just does not square with the explanation that all three members of the Tribunal were fully aware of, and rejected, the possibility of a finding of subconsciously motivated discrimination. It is, I think, unhelpful to speculate how these two contradictory statements came to be made. The explanation given is not satisfactory, either in itself or as a reconsideration of an original decision which misstated the law. The Employment Tribunal had not after all in its reconsideration done what Burton J's judgment invited them to do. The Employment Tribunal's original decision in paragraph 9.1 stated that no form of racial discrimination had been shown to have been practised against the Respondent. But the terms of the next sentence in paragraph 9.1 to the effect that they had been able to accept the university's explanations, implies that the Tribunal was looking at the evidence relating to the university's conscious motivation. Taken at its highest, beyond the bare assertion that the Tribunal did consider and reject subconscious motivation, there is no reasoning at all on this point.
33. In my judgment, the second Employment Appeal Tribunal was correct to decide that the original decision not only misstated the law but that the explanation given was inadequate and, in my judgment, they were correct to allow the appeal on this point.
34. The case had to be remitted and the question originally was to whom. Giving all due weight to the University's written submissions on disproportionality, (which did, as I have said, trouble me) I would have concluded that the matter could not in justice return for the third time to the same Tribunal, even if that Tribunal could now have been reconstituted. The Respondent, I think, was entitled to say that, in the unfortunate circumstances of this case, he would have had no confidence that the original Tribunal could reconsider this, and other matters if need be, without being influenced in the result by what had gone before. They had said after all that they had already decided the subconscious discrimination point against him. However the University per force does not now seek remission to the same Tribunal, and there is no alternative but to remit the matter to a different Tribunal. Nor is there a practical alternative to a full rehearing.
35. It is no doubt little comfort to the University that the decision of this court will dispose of the problem of the grounds of appeal which the Employment Appeal Tribunal never determined.
36. For these reasons, I would dismiss this Appeal.
37. LORD JUSTICE SEDLEY: I agree with the judgment delivered by my Lord, Lord Justice May, but I would go just a little further than him in relation to the Section 146 issue. It seems to me that, even if Burton J had not solicited something more explanatory than the merely conclusory finding of the Employment Tribunal, both the original determination and the Employment Tribunal's answer to the EAT's second question were so perfunctory as not to pass muster as adequate reasons in law. Neither passage mentions, much less deals with, the reasons put forward on Professor Vaseghi's behalf for questioning whether this was in reality a purely administrative and disciplinary exercise. Whatever the outcome was to be, the parties were entitled to know whether and how such matters had been addressed. That seems to me axiomatic.
38. I would add that mediation may be a better route for both the University and Professor Vaseghi to go down, even at this late stage, than renewed litigation. No university and no individual within it can function properly in an atmosphere of suspicion and hostility. Litigation rarely succeeds in mitigating such an atmosphere. Mediation can sometimes do so.
39. LORD JUSTICE HUGHES: I also agree that the appeal must be dismissed. For myself, had the complaint under Section 146 of the Trade Union and Labour Relations Consolidation Act point stood alone I would have held that the Employment Tribunal's second expression of its findings as to motive sufficed. The Employment Tribunal identified a positive motive for the inquiry, which was nothing whatever to do with Trade Union activity. There was a background of previous complaint of email misuse and a prima facie case of a recurrence. However, given the plainly unsatisfactory nature of the Tribunal's approach to and reasoning in relation to subconscious discrimination, the conclusion of the second Appeal Tribunal that the case must be retried from the beginning is, I regret, one which cannot be faulted.
40. I respectfully endorse everything that my Lord, Lord Justice Sedley, has said about the merits, even at this stage, of mediated discussion between the parties.

Order: Appeal dismissed.