United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A J HOWS (Solicitor) Messrs Simpson Millar Solicitors 165 The Broadway Wimbledon London SW19 1NE
For the Respondent	MS N SIVANANDAN (Representative)

SUMMARY

Race Discrimination

Employment Tribunal failed to consider whether the Respondent's reason for calling the Applicant to a disciplinary hearing was by reason of a protected act (allegation of racism against his superiors) or whether it was because, having made such allegations, he refused to co-operate in investigating them. If the latter reason was substantiated, the finding that the Applicant had been victimised could not be upheld.

The Employment Tribunal Decision that the Respondent did discriminate by calling the Applicant to a Performance Review and Development meeting upheld.


 


HIS HONOUR JUDGE D SEROTA QC

Introduction

1. In this Decision we have concluded by a majority that the Employment Tribunal failed to give a satisfactory explanation and failed to make sufficient findings of fact to support its conclusion that London Metropolitan University ("the University") had been guilty of victimisation. The Employment Tribunal failed to make clear whether or not it accepted the University's explanation for calling the Claimant to a disciplinary hearing. We have accordingly remitted the case to the Employment Tribunal to make further findings, and if necessary to reconsider its Decision.
2. This is an appeal by the University from the Decision of the Employment Tribunal at London Central (C A Carstairs Esq, Chairman) that was entered into the Register on 10 March 2004 after a three day hearing. The Employment Tribunal considered its Decision for two days in chambers. The Employment Tribunal held that the University had discriminated against the Claimant on the grounds of race in requiring him to attend a PRD interview (Performance Review and Development), and had victimised him by calling him to a disciplinary hearing and issuing him with a first and final warning.

The factual background

3. The factual background is clearly and carefully set out in detail by the Employment Tribunal, so it is only necessary for us to summarise the essentials.
4. The Claimant is of Afro-Caribbean ethnicity and joined the University of North London in 1994 as a library assistant. The University of North London merged with London Guildhall University to become London Metropolitan University in August 2002.
5. It is clear that from some time in 1996, or possibly later, relationships between the Claimant and his superiors deteriorated. His immediate superior, and line-manager, Ms Sneddon, had an approach that was described by the Employment Tribunal as "brusque, blunt and abrupt, so much so that some staff perceived her as a bully and complained about her".
6. On 26 September 2000 the Claimant made an informal complaint about Ms Sneddon followed by a formal complaint on 20 November 2000 when he had received no satisfaction from his informal complaint.
7. The matter was investigated by Mr Roy Williams, the University's Director of Information Systems and Services. On 18 December 2002 Mr Williams reported to Ms Link, the Director of Human Resources. Ms Link, on 10 January 2001, wrote with the result of the investigation. She considered there was no evidence of harassment or bullying by Ms Sneddon, and no evidence that she had acted with malice to the Claimant. However, she was concerned that various issues had arisen during the course of the investigation which she wanted to have discussed with the Claimant in the presence of his Trade Union Representative. Ms Link described these as including the Claimant's "attitude to work, direction and supervision by others…". She considered that these had played a significant part in terms of the issues which gave rise to his complaint of harassment and that it was important that those issues be addressed in an open and constructive manner

"in order that you can contribute towards effective working relationships with your colleagues, supervisors and managers."

8. We note that Mr Williams had expressed concern that the Claimant in his complaint and accompanying correspondence had made

"liberal use of exaggerated and overstated claims and language."

Ms Link reached a similar conclusion and in her letter informed the Claimant that the tone and use of language in certain of his correspondence was unacceptable.

9. As Ms Link pointed out in her letter, the Claimant was entitled, if dissatisfied with the outcome of the formal investigation she had conducted, to lodge a grievance in line with the University's grievance procedure. The claimant did exercise a right of appeal. The appeal hearing never took place as the Claimant was unwilling to attend in the absence of a solicitor and the University was not prepared to allow a solicitor to accompany him. The meeting proposed by Ms Link never took place.
10. In June 2001 the Claimant's uncle in Jamaica passed away. He had brought up the Claimant. The Claimant was not permitted to take compassionate leave due to a misunderstanding by the University as to his relationship with his uncle.
11. On 26 July 2001 the Claimant was off work through ill-health and there was a dispute about sick notes.
12. On 5 September 2001 the Claimant made an informal complaint about Ms Hanson (the Customer Circulation Services Manager) and a Mr Bowbeer, in which he alleged he had been the subject of victimisation and referred to "ongoing sagas". This was followed on 25 September by a further informal complaint against Ms Hanson and against Ms Julie Howell (the Library Services Manager). He referred to the managers having a duty not to infringe equal opportunities without harassment and discrimination, racial or otherwise. He also referred to their duty to uphold the law of the land. By this stage the Claimant's managers were expressing concern about how relationships between the Claimant and his managers had deteriorated. A meeting was suggested, and indeed took place, between the Claimant and Mr Williams, a meeting which the Claimant surreptitiously tape recorded.
13. On 29 October 2001 the Claimant wrote to Mr Williams in relation to the proposed meeting and sent a copy to the Commission for Racial Equality (CRE). He stated that he regarded the findings from the University's investigations as being flawed by reason of "racial stereotyping and racism per se". It is accepted that this letter amounted to a protected act for the purpose of section 2 of the Race Relations Act 1976.
14. On 12 November 2001 Ms Link responded and wrote that the University took all allegations of discrimination very seriously and provided details of the University's formal and informal procedures. Mr Williams wrote on 14 November in relation to a proposed meeting with Human Resources. This meeting, it was suggested, fell under the normal purview of management responsibilities in addressing staffing or managerial issues and the Claimant could be accompanied, if he so wished, by a Union representative.
15. On 19 November 2001 the Claimant responded and repeated that in his opinion the investigation was flawed by reason of racial stereotyping and racism, and he asked how the University could conduct a post-grievance meeting outside Human Resources policies. He suggested that this would be a breach of the Race Relations Act, as was the University's failure to reimburse him in respect of his compassionate leave. This response is also accepted to have been a protected act.
16. On 2 December 2001 the Claimant sent an e-mail to a lawyer friend. The Claimant complained about what he saw as discrimination on the part of the University. The tone of the e-mail is unfortunate in some respects. Thus he refers to the University as the "Looniversity" and to Ms Link as "Lynn Stink". He described the University as being a racist institution. The friend replied by e-mail on or about 10 December. The Claimant had a hard copy made of the e-mail but left a substantial part of it on the library desk. It is accepted that the writing of the
    e-mail was a protected act. We have some reservations as to whether leaving the e-mail for all to see on the library desk would have been a protected act, but it matters not.
17. On 11 December the e-mail was shown to Mr Williams who referred it to the Human Resources Department and to the Claimant. The Employment Tribunal had this to say about matters at paragraph 57:

"He [Mr Williams] told the Applicant that he was going to investigate the matter as a potential disciplinary matter and the meeting would be held in accordance with the Respondent's procedures relating to conduct, capability and sickness absence… This contains a preliminary investigation procedure whose object is to establish the exact nature of a complaint, the nature of the evidence to substantiate it, whether these justify a formal hearing and, if so, whether there should be a suspension."

18. The Claimant replied and sought a more convenient date for the investigatory meeting and asked for a response to the letter he had written on 19 November. The Employment Tribunal quote part of this letter:

"Since I have not heard form you, I can only assume that you are in full agreement with my assessment of the situation with regards to institutional racism."

This letter is also accepted to be a protected act.

19. On 14 January 2002 Mr Williams met the Claimant. He told Mr Williams that he did not intend to come to a meeting requested by Mr Williams because it would be attended by a Human Resources representative. Mr Williams and the Claimant went on to discuss various matters including Mr Henry's claim that he should have been entitled to compassionate leave on the death of his uncle. Mr Williams, now the full facts had been explained to him, accepted this to be the case. The conversation then moved to the e-mail left on the library desk. The Employment Tribunal then say:

"Mr Williams stated there was no option but to instigate a disciplinary case against the Applicant because he was proving too difficult to manage and would not accept the Respondent's procedures as a way of dealing with his complaints which were serious. The Applicant responded by saying that Caesar could not judge Caesar and continuing that Human Resources, Ms Link and Mr Williams were all part of the same institutional racism. He therefore proposed to have the CRE look into his case and said that he did not care if he lost his job, he had to keep to his principles."

20. The disciplinary hearing took place on 4 March. Allegations made against the Claimant were as follows:

1. Continually failed to accept reasonable management instruction.

2. Continually failed to accept or to follow University procedure.

3. Resorted to taking out grievances and raising complaints against his supervisors and managers, rather than raising routine issues informally or face to face.

4. Made serious allegations of victimisation, harassment and bullying against his supervisors, but failed to accept the outcome of reasonable investigations into these.

5. Made a series of serious allegations against his Head of Department without substantiating them or following due procedure so that they may be investigated. In so doing he has called into question the reputation and good standing of a senior manager of the University, both internally and externally.

6. Strongly implied a serious allegation of institutional racism against his employer, but failed to substantiate this or to follow due procedure so that it may be Investigated. In doing so he has called into question the reputation and good standing of the University, both internally and externally.

7. Through his actions taken up an excessive and disproportionate amount of management time.

8. Through his actions caused stress to his colleagues and compromised working relationships.

21. In respect of items 2, 3 and 7, the Panel found these had been made out but they amounted to misconduct but not serious misconduct. However, so far as the fifth and sixth allegations were concerned, they were found proven and to be serious misconduct. The Panel's decision was that the Claimant should be issued with a first and final written warning to remain in force for six months. The other charges were not made out to the Panel's satisfaction.
22. The Panel concluded that the Claimant had not been the subject of racism, as defined in the Stephen Lawrence Inquiry Report, and did not accept that there had been collective failure by the University in terms of institutional racism.
23. The Disciplinary Panel also had this to say:

"Additionally, the Disciplinary Panel noted that in the course of the Hearing, Mr Williams expressed a strong desire to move forward and improve working relationships. The Disciplinary Panel therefore strongly encourages and recommends that you meet Mr Williams to discuss and seek to reconcile future working relationships, addressing issues of concern that either party may have in a constructive manner. I invite Mr Williams (by copy of this letter) to arrange such a meeting with you. The Panel recommends that subsequently a similar meeting also takes place with your other managers."

24. Following on from this, Mr Williams asked that Julie Howell should conduct a PRD interview with the Claimant. This was for the purposes of discussing "work performance issues" and "staff development issues". However, a meeting did not take place.
25. We understand that the Claimant remained at the University but was subsequently dismissed. We also understand that there have been further proceedings in the Employment Tribunal. We know nothing about the circumstances of the dismissal or of the further proceedings.

The Decision of the Employment Tribunal

26. Mr Henry was unrepresented at the Employment Tribunal. The Tribunal, therefore, at the beginning of the hearing identified the specific issues that arose and the specific incidents of direct discrimination, indirect discrimination and victimisation alleged by the Claimant. The majority of these were not made out to the satisfaction of the Employment Tribunal and accordingly we say nothing further about them. There is no appeal against that part of the Decision of the Employment Tribunal.
27. The Employment Tribunal made this finding at paragraph 103 in relation to calling the Claimant to the PRD:

"Regarding the performance review development (PRD) process, there was no evidence that these took place every year although Mr Williams said some people would have had them regularly although he did not say who. Mr Williams said he was concerned at the worsening relationship between the Applicant and his line manager and the fact that matters were coming to the fore again, such as the wearing of headphones. To that end he wanted Ms Howell to conduct a PRD interview in respect of work performance issues and staff development issues. However, the Tribunal noted that it had seen no evidence as to what parts of the Applicant's performance and development were to be addressed. The threat of holding a PRD amounts to a detriment where some or all of the Applicant's colleagues were not required undergo a PRD. Accordingly, the Tribunal considered that the burden of proof shifted to the Respondent in accordance with section 54A of the 1976 Act. In the absence of evidence as to the performance and development issues to be considered, the Tribunal has concluded that the Respondent has failed to show that it did not discriminate against the Applicant. This complaint therefore succeeds."

28. In order to determine issues of victimisation in favour of Mr Henry the Employment Tribunal had not only to identify the protected acts; we have identified those protected acts which appear to be accepted by both sides and were accepted by the Employment Tribunal. The Employment Tribunal also had to conclude that the protected acts (the writing of the letters and e-mails) was done in good faith: see section 2(2) of the Act. The Employment Tribunal at paragraph 119 expressly found that the Claimant had acted in good faith.
29. The Employment Tribunal then went on to consider the calling of the disciplinary hearing. The case put forward by the University is to be found set out at paragraph 87 of the Decision of the Employment Tribunal. It was submitted on behalf of the University that the issues of serious misconduct related not to the fact that the Claimant had made allegations but to his failure to pursue those allegations properly so they might be processed, despite having been given every opportunity to do so. The Employment Tribunal, however, concluded that both the calling of the disciplinary process amounted to victimisation, as did the issue of the final written warning. The Employment Tribunal had this to say:

"122 The Respondent explained during the course of the evidence that the Applicant was in breach of the Procedure for Dealing with Complaints of Harassment and Bullying. The provisions at paragraph 1.5 (R2/59) include that "the complainant should be encouraged to follow the informal procedures... However if this course of action is unsatisfactory of the informal procedures are not appropriate, then the complainant should not be discouraged from using the formal process". Paragraph 1.5.2 provides that in "cases where the informal process has proved ineffective, or for more serious cases of harassment, the formal procedure may be followed. The member of staff being harassed should put in writing a formal complaint which should be forwarded to the Human Resources Department". However, the alleged breach is only sustainable if it was compulsory for the Applicant to follow that procedure. Use of expressions and words such as "should be encouraged to", "should not be discouraged from" and "may" do not denote compulsion; indeed, just the opposite in that it is clear that the process is ,voluntary but complainants should not be discouraged from using it. Clearly, therefore, the Applicant was not in breach of a procedure by not following it when it was not compulsory.

123 The Tribunal has concluded that the Respondent treated the Applicant less favourably by calling the Applicant to a disciplinary hearing. The Tribunal was also satisfied that the reason for the Respondent's action was the Applicant's carrying out the various protected acts ending with the e-mail of 2/10 December which led Mr Williams to start the investigation procedure. That amounts to an act of victimisation contrary to section 2 of the 1976 Act. The Applicant's complaint in that respect is therefore successful.

…

126 Issuing a first written warning: The first and final warning was given because the Applicant had, first, made a series of allegations against Mr Williams and the Respondent, secondly, without following due procedure, thirdly, in so doing had called into question the reputation and standing of Mr Williams and the Respondent, fourthly, both internally and externally and fifthly, without providing relevant evidence. During the course of its decision the panel indicated that it had ignored the e-mail of 2/10 December; the Tribunal accepts that since the panel's finding does not appear to rely or refer to the allegations made in that e-mail.

127 The allegations were of race discrimination and were protected acts. The Applicant did not have to follow the harassment etc procedure. It is a truism that an allegation of race discrimination will call the reputation and standing of anyone accused of such into question. The fact that the Applicant complained both internally and externally contributes to the actions amounting to protected acts. The allegation that the Applicant made the allegations without providing relevant evidence appears to relate back to the failure to follow the procedure because the Applicant was unwilling to pursue it without being allowed to have his friend and lawyer present. Section 2 of the 1976 Act does not require that an allegation has to be supported by evidence; indeed, the fact that an allegation can be untrue but still amount to a protected act provided it was made in good faith indicates that evidence is not needed. The failure to produce evidence might be relevant to the issue of good faith, but the Tribunal has concluded that the Applicant's allegations were made in good faith.

128 The Tribunal has concluded that the substantial reason for the final written warning was the making of the allegations. Accordingly the Applicant was treated less favourably for carrying out protected acts. That amounts to victimisation. This complaint therefore also succeeds."

Issues on appeal

30. Numerous issues have been raised in the Skeleton Arguments prepared by the Claimant and by his lay-representative Mr Sivanandan. We do not consider it necessary to be sidetracked into consideration of whether the case raises the question as to whether black people can ever receive a fair trial under the British Judicial System, or whether there is racism within the EAT. We intend to concentrate on the specific issues raised by the appeal which relate to the three findings of discrimination (one of direct discrimination and two of victimisation).
31. By way of general introduction Mr Hows (solicitor for the University) invited our attention to the Decision of the Court of Appeal in Bahl v The Law Society [2004] IRLR 799.
32. The Court of Appeal made clear that evidence of unreasonable behaviour could not in itself justify an inference of discrimination. Peter Gibson LJ giving the judgment of the Court of Appeal had this to say at paragraph 98:

"The first concerned the situation in which the alleged discriminator gave an explanation in terms of his own unreasonable conduct whilst denying discrimination on the proscribed grounds: at its simplest, 'I may have treated my employee unreasonably, but I treat all my employees like that, white or black, male or female'. A misreading of King might have produced the analysis that such an unreasonable explanation in itself justified an inference of discrimination. However, such an erroneous approach was identified and terminated by Zafar. Lord Browne-Wilkinson said (at p.38):

'the conduct of a hypothetical reasonable employer is irrelevant. The alleged discriminator mayor may not be a reasonable employer. If he is not a reasonable employer he might well have treated another employee in just the same unsatisfactory way as he treated the complainant, in which case he would not have treated the complainant "less favourably" for the purposes of the Act of 1976. The fact that, for the purposes of the law of unfair dismissal, an employer has acted unreasonably casts no light whatsoever on the question whether he has treated the employee "less favourably" for the purposes of the Act of 1976.'

His Lordship then commended the words of Lord Morison in the Court of Session, [1997] IRLR 229, 231:

'It cannot be inferred, let alone presumed, only from the fact that an employer has acted unreasonably towards one employee that he would have acted reasonably if he had been dealing with another in the same circumstances.'"

The Court of Appeal at paragraph 101 made clear that an alleged discriminator did not, in order to avoid an adverse inference, have to prove that he behave equally unreasonably to everybody.

33. The Court of Appeal approved the judgment of Elias J in the Employment Appeal Tribunal:

"As Elias J. observed (para. 97):

"Were it so, the employer could never do so where the situation he was dealing with was a novel one, as in this case."

Accordingly, proof of equally unreasonable treatment of all is merely one way of avoiding an inference of unlawful discrimination. It is not the only way. He added (ibid.):

"The inference may also be rebutted -- and indeed this will, we suspect, be far more common -- by the employer leading evidence of a genuine reason which is not discriminatory and which was the ground of his conduct. Employers will often have unjustified albeit genuine reasons for acting as they have. If these are accepted and show no discrimination, there is generally no basis for the inference of unlawful discrimination to be made. Even if they are not accepted, the tribunal's own findings of fact may identify an obvious reason for the treatment in issue, other than a discriminatory reason."

We entirely agree with that impressive analysis. As we shall see, it resonates in this appeal."

34. The Court of Appeal also had this to say at paragraph 104:

"In an area where the drawing of inferences is central, it is essential that the ET sets out with the utmost clarity the primary facts from which any inference if discrimination is drawn… It is particularly important that the ET takes care to explain how it has made a finding of unconscious discrimination…"

The Court of Appeal went on at paragraph 114 to make clear the importance of the Employment Tribunal setting out the bases for its findings clearly and explicitly:

"In a case such as the present, where there were disputed questions of law, facts and inference, the mere fact that those disputed matters were referred to in the lengthy closing submissions does not indicate the ET's reasoning in resolving those issues. The parties were entitled to know what conclusions were reached on each disputed question and why."

35. In the Bahl case a finding of discriminatory conduct was made against the Respondents notwithstanding evidence of non-discriminatory reasons why the Respondents acted as they did. The Court of Appeal had this to say:

"133. In Hazelhurst Pill LJ said at para. 28:

"In my judgment, it is quite impossible, looking at the detailed findings as a whole, to find a decisive pointer towards a racially discriminatory attitude. It is impossible to find in the judgment of the Employment Tribunal any reason why they drew the inference they did from the facts they found. Bingham LJ stated in Meek [v City of Birmingham Council [1987] IRLR 250] that a party before an employment tribunal is entitled to know why it lost. The respondents in this case have no sufficient indication of that from the judgment of the Employment Tribunal. In the absence of reasoning, there is a real danger that the inference has been wrongly drawn."

Other cases, such as Effa v Alexandra Health Trust, an unreported decision of this court on 5 November 1999, contain similar warnings against an ET drawing an inference of discrimination without explaining the factual basis from which that inference can properly be drawn.

134. That applies with even more force to a case such as the present where the ET has made positive findings of fact which give non-discriminatory reasons why Mr. Sayer and Mrs. Betts acted as they did. We do not accept Mr. de Mello's assertions that the ET rejected Mr. Sayer's and Mrs. Betts' explanations for their hostility to Dr. Bahl. A charge of discrimination is a very serious matter to find established against anyone, let alone the President and the Secretary General of the Law Society. Fairness demanded that the finding of discrimination be adequately explained and shown to have a proper evidential basis. That was not done. In truth there was no such basis and instead we are left with the findings at para. 4.99 and 7.4.25 which provide the explanation for any adverse treatment of Dr. Bahl."

36. We consider, having regard to the Bahl judgment that where there are allegations of discriminatory conduct, whether by reason of direct discrimination or by reason of victimisation, and non-discriminatory reasons are put forward by respondents to explain why they acted as they did, it is necessary for the employment tribunal to make careful and explicit findings of fact to support any inferences they think proper to draw and to explain why they reject any non-discriminatory explanation put forward by the respondents.

Performance Review and Development interview

37. It was submitted to us, as it was to the Employment Tribunal, that to call someone to a PRD interview cannot amount to a detriment. Mr Hows referred to the unchallenged evidence of Mr Williams that it gave the Claimant a positive opportunity to improve his work situation. Mr Hows further submitted there was abundant evidence before the Employment Tribunal of the fact that the Applicant was at odds with his superiors over a substantial period of time and that accordingly the conclusion of the Employment Tribunal that the University had not demonstrated a justification for calling him to a PRD interview was plainly wrong. Mr Howe drew our attention to the fact that the PRD Scheme (we have a copy of a draft in our papers) formed no part of the disciplinary process. Paragraph 1.1 of the Introduction provides as follows:

"1.1 Introduction

The University's Staff Development Policy recognises that al1 staff need to be appropriately trained to provide high quality services in line with the Strategic Plan. A central part of the identification implementation and evaluation of staff development is the Performance Review and Development (PRD) Scheme, which should ensure that all staff have the .requisite skills knowledge and qualifications to enhance the quality of teaching, research and student support within the context of Department Faculty Plans. The PRO Scheme will enable all staff to:

a) Recognise and build on existing skills, knowledge and expertise.

b) Develop new skills and potential.

c) Plan to overcome and improve on areas in need of support to achieve objectives.

As part of the continuous improvement approach identified by Investors in People, and more recently the Dearing Review, the University is developing a framework of standards/competencies to clarify what is required of staff at all levels which will be incorporated into the PR.D Scheme as appropriate."

1.2 Aims and Objectives of the PRD Process

Within the University's framework of equal opportunities, the PRD Scheme aims to enhance the quality of service in line with the Strategic Plan by developing staff. To fulfil this, the objectives of the Scheme are to:

a) Provide an opportunity for staff to review their own performance against their annual objectives and receive constructive feedback, evaluating the impact of any staff development activities on their performance.

b) Set objectives for the coming year which relate to individual,. Department/Faculty and University requirements, identifying any support needed to meet those objectives, such as support from line managers, colleagues, worksystems and/or staff development activities.

c) To develop and improve performance in line with Department/Faculty Operational Plans and the University's Strategic Plan.

d) Provide a basis for systematic staff development by contributing to the formulation of Department/Faculty Annual Development Plans to support staff in attaining individual objectives and the goals of Department/Faculty Operational Plans.

e) Provide an opportunity for staff to discuss their aspirations and/or difficulties openly with their managers.

f) Assist the career and professional development of all staff.

g) Improve the efficiency with which the institution is managed.

h) Support the development of equal opportunities policies and practices."

We also need to refer to paragraph 1.5.3:

"1.5.3 Links to other University Procedures

The PDR Scheme should not be used to determine promotion issues other than where this is specifically agreed, e.g. career graded schemes.

The scheme is not a substitute for on-going dialogue between members of staff and their line manages and any matters causing concern should be dealt with as they arise and not be left to the PDR discussion before being raised. Where serious performance issues are identified the Reviewee's Line Manager should use the University's Capability Procedure or Disciplinary Procedure as appropriate. PRD Records will not be linked directly to any disciplinary procedure, promotion or shortlisting and PRD Dorms should not be used as evidence during Capability or Disciplinary Hearings, nor should issues related to such procedures be raised for the first tine during a PRD discussion."

38. Mr Hows submitted to us that the PRD Scheme was clearly not part of the disciplinary process and indeed this was made clear by Mr Williams to Mr Henry in the e-mail of 12 April in which Mr Williams said he wished to pursue concerns about work-related matters outside of the context of the disciplinary process. Mr Hows submitted that the desire of the University following the findings of the Disciplinary Panel that the Claimant should meet Mr Williams to discuss and to reconcile the difficulties between the Claimant and his superiors and other issues of concern, could not be understood in any way to be a detriment.
39. The Employment Tribunal was clearly concerned that the PRD was not an appropriate vehicle to discuss working difficulties between the Claimant and his line manager. There were no work-related issues to be discussed; the problem, as we have already said, was in the Claimant's personal relationship with his managers. It is apparent from the passages which we have read from the Performance Review and Development Scheme that the purpose of the PRD is to deal with skills, not conduct. In arriving at our conclusion we are greatly assisted by the industrial experience of both Ms Switzer and Mr Yeboah. It seems to us, as it seemed to the Employment Tribunal, that the PRD was simply inappropriate as a means of considering difficulties arising between the Claimant and his line managers. There was no evidence of any complaints about the Claimant's performance or anything he might do to improve his performance. He was called to a PRD in circumstances where others had not and in circumstances where it was possible to draw an inference that he was being called to the PRD on the grounds of his race. In those circumstances, the reverse burden of proof in section 54A of the Race Relations Act 1976 came into play. The Employment Tribunal was entitled, as it did, to call for an explanation from the University as to why the Claimant had been called to a PRD rather than having the undoubted issues that arose between him and his line managers discussed in some other way or in some other forum. For example, there was no reason why an informal meeting between him and his managers and Human Resources could not have been called.
40. In the event the University was unable to offer any explanation as to what performance and development issues were to be considered at the PRD meeting. Issues that were to be discussed, namely the Claimant's relations with his superiors and managers, were conduct issues and not appropriate to PRD.
41. Accordingly as it seems to us the Employment Tribunal was entitled to conclude the University had failed to show that it did not discriminate against the Claimant. It seems to us therefore that the appeal, so far as concerns this particular point, must be dismissed. Before we leave the point we reject one of the submissions that was made by Mr Henry, that the Employment Tribunal found that the Claimant was the only person called to a PRD. At paragraph 72 of its Decision the Employment Tribunal is simply setting out the Claimant's case. There were other persons called to such meetings. The findings of fact of the Employment Tribunal are impeccable.
42. In fairness, and before concluding this point, we recognise that the Claimant was difficult to manage and created significant problems for managers by reason of his attitude and his lack of willingness to cooperate in a non-confrontational way. However the procedure adopted by the University in calling him to a PRD was inappropriate and the University failed to give any satisfactory explanation as to why a PRD was called.

The disciplinary hearing and written warning and the victimisation

43. We take these points together because the written warning flows from the calling of Mr Henry to the hearing.
44. It will be recalled that both at the Employment Tribunal and before us the case for the University was that it was not the fact that the Claimant had made complaints which were protected acts that led to the disciplinary proceedings but the fact that having made them he refused to assist the University in investigating them or in substantiating them. Mr Hows submitted to us that the Employment Tribunal did not find that the Disciplinary Panel's findings of misconduct themselves amounted to victimisation or were wrong. Accordingly the finding that the disciplinary hearing was unjustified was, in Mr Hows' submissions, both illogical and unsupportable because a disciplinary hearing would have been required to consider the allegations found to constitute misconduct. These not criticised by the Tribunal nor were they found to be unjustified by the Employment Tribunal. It was then submitted that the reason for the final warning was because the Claimant repeated unsubstantiated allegations of discriminatory behaviour and failed to address these through appropriate procedures. He was repeatedly asked to engage in the University's procedures and to justify his allegations but he refused to do so.
45. Mr Hows submitted that the provisions of section of the Race Relations Act required the Employment Tribunal to make a finding as to the reason for any action taken to the detriment of the Claimant which is said to constitute victimisation and in this regard he drew our attention not only to the decision in Bahl, to which we have already referred, but also the decision of Chief Constable of West Yorkshire Police v Khan [2001] UKHL 48, a decision of the House of Lords. The facts of that case were that the Applicant was a serving police officer who had taken proceedings against the Chief Constable for discrimination on the grounds of race. During the period when the proceedings were outstanding he had applied for a post in another police force which sought a reference from the Chief Constable. The Chief Constable, on advice, declined to give a reference by reason of the outstanding proceedings. This led Sergeant Khan to claim that this amounted to victimisation, a claim that was upheld by the Employment Tribunal on the basis there was no need to look further once it was seen that the West Yorkshire force ordinarily provided a reference and copies of previous appraisals and that the only difference in this particular case was that Sergeant Khan had commenced proceedings under the Act. Lord Nicholls had this to say at paragraph 23:

"23. Victimisation occurs when, in any circumstances relevant for the purposes of any provision of the Act, a person is treated less favourably than others because he has done one of the protected acts. Thus, the definition of victimisation has, essentially, three ingredients. The first is 'in any circumstances relevant for the purposes of any provision of this Act'. This is a reference to circumstances in respect of which discrimination is unlawful under the Act. For instance, under section 4(2) it is unlawful for an employer to discriminate against an employee by dismissing him. If an employee brings a victimisation claim based on his dismissal, the relevant circumstances are his dismissal by his employer. In the present case Sergeant Khan is treated as employed by the chief officer of police of West Yorkshire: see section 16 of the Act. The relevant circumstances are that, while employed, Sergeant Khan requested a reference when seeking new employment and his request was refused."

Lord Nicholls continued at paragraph 29:

"29. Contrary to views sometimes stated, the third ingredient ('by reason that') does not raise a question of causation as that expression is usually understood. Causation is a slippery word, but normally it is used to describe a legal exercise. From the many events leading up to the crucial happening, the court selects one or more of them which the law regards as causative of the happening. Sometimes the court may look for the 'operative' cause, or the 'effective' cause. Sometimes it may apply a 'but for' approach. For the reasons I sought to explain in Nagarajan v London Regional Transport [2001] 1 AC 502, 510-512, a causation exercise of this type is not required either by section 1(1)(a) or section 2. The phrases 'on racial grounds' and 'by reason that' denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact."

46. Lord Nicholls then continued at paragraph 31:

"31. Mr Hand QC submitted that Cornelius v University College of Swansea [1987] IRLR 141 was wrongly decided. I do not agree. Employers, acting honestly and reasonably, ought to be able to take steps to preserve their position in pending discrimination proceedings without laying themselves open to a charge of victimisation. This accords with the spirit and purpose of the Act. Moreover, the statute accommodates this approach without any straining of language. An employer who conducts himself in this way is not doing so because of the fact that the complainant has brought discrimination proceedings. He is doing so because, currently and temporarily, he needs to take steps to preserve his position in the outstanding proceedings. Protected act (a) ('by reason that the person victimised has - (a) brought proceedings against the discriminator … under this Act') cannot have been intended to prejudice an employer's proper conduct of his defence, so long as he acts honestly and reasonably. Acting within this limit, he cannot be regarded as discriminating by way of victimisation against the employee who brought the proceedings."

47. Lord Nicholls thus rejected the approach of the Employment Tribunal having stressed that the Employment Tribunal must identify the reason for the act said to be to the detriment of the Claimant.
48. Lord Hoffman put the matter in this way at paragraph 50:

"50. The requirement that doing the protected act must have been the reason for the less favourable treatment is adequate to safeguard an employer who acted for a different and legitimate reason. On the other hand, it will rightly provide no defence for an employer who can only say that although his reason was indeed the doing of the protected act, it formed part of a larger class of acts to which he would have responded in the same way."

Lord Scott of Foscote put the matter in this way at paragraph 77:

"77. Was the reference withheld "by reason that" Sergeant Khan had brought the race discrimination proceedings? In a strict causative sense it was. If the proceedings had not been brought the reference would have been given. The proceedings were a causa sine qua non. But the language used in section 2(1) is not the language of strict causation. The words "by reason that" suggest, to my mind, that it is the real reason, the core reason, the causa causans, the motive, for the treatment complained of that must be identified."

49. We take it, therefore, that where a claimant has done a protected act and the respondent does an act to his detriment, the respondent is entitled to show that he had a non-discriminatory reason for carrying out the act which was not that the Claimant had carried out a protected act notwithstanding that it is somehow occasioned by the protected act. For shorthand purpose such an explanation is referred to as "non-discriminatory".
50. Mr Hows submitted that in this case the Employment Tribunal fell into the trap of saying that but for the protected acts the Claimant would not have been so treated whereas in the Khan case the House of Lords had made clear that the Employment Tribunal most go on to consider the reasons for the particular act taken by the Respondent. Mr Hows stressed that the Employment Tribunal expressly said that no reasons were given, which was incorrect. He also submitted that a wrong reason, if honestly held, may still be a non-discriminatory reason. He therefore submitted that the issue as to whether the University's procedure in dealing with complaints of harassment and bullying was obligatory was beside the point. He submitted that if the University believed that Mr Henry's refusal to cooperate in the investigation and substantiation of his complaints was the true reason for his being called to disciplinary proceedings, the fact that they wrongly believed he was under a positive obligation to have done so, would not convert a non-discriminatory act into an act of victimisation.
51. We agree with the Employment Tribunal at paragraph 122 that the procedures relied upon by the University were voluntary and not compulsory. However, that is not an end of the matter.
52. We interpolate to ask ourselves the question, what happens where an employee makes serious allegations of misconduct, including discrimination on the grounds of race or sex against his managers, but refuses to cooperate in any investigation? Is the employer bound to permit allegations to continue to be made indefinitely to the prejudice of everyone concerned? This point is not addressed by the Employment Tribunal (on the basis of the University's then procedures). It would seem to us that the contractually correct method of procedure was that suggested by Mr Yeboah during the course of argument. The University should have said to the Claimant "in effect, cooperate or desist". If the Claimant had then refused to cooperate and had continued to repeat the allegations he could properly have been disciplined for failure to comply with a proper management direction.
53. In our opinion, the fact that the Claimant was called to a disciplinary meeting because the University mistakenly believed he was in breach of a contractual duty to assist investigation of his complaints does not mean that he was called to a disciplinary meeting as a result of the protected acts. In our opinion the Employment Tribunal still needed to consider the University's case. Even if the University was mistaken as to whether the Claimant was in breach of a positive duty to assist, it was necessary to consider whether that reason (which appears on its face to be non-discriminatory and not intended to punish the Claimant for doing the protected act of making the complaints) was aimed at his failure to assist an investigation as opposed to "punish" him for doing the protected acts.
54. In our opinion, the Employment Tribunal in the light of the authorities we have referred to was obliged to set out its findings and say if it rejected the University's case and if so why. The Employment Tribunal clearly found that the University was not contractually entitled to require the Claimant to go through the procedure which was a voluntary procedure. The issue is whether the Employment Tribunal made clear whether it rejected the University's explanation as having been factually incorrect and if so why.
55. It is at this point that we have the misfortune to disagree between ourselves. The Majority, Ms Switzer and His Honour Judge Serota QC, considered that the Employment Tribunal did not make findings as to whether it accepted or rejected the University's explanation on the facts. Mr Yeboah believes that the Employment Tribunal did.
56. We set out Mr Yeboah's reasoning first. It is accepted that the letters and e-mails to which we have referred earlier were protected acts and the Employment Tribunal found that the Claimant had acted in good faith. Prior to the discovery of the e-mail on 10 December 2001 Mr Williams had been attempting to arrange meetings with the Claimant in relation to his attitude towards the world of work and towards being directed and supervised. There was no suggestion of any disciplinary process at this stage. For example, in the letter 14 November 2001, Mr Williams had specifically requested a meeting to discuss matters:

"to enable you and your supervisors and line managers to enjoy conducive and harmonious working relationships. As such this meeting will not be conducted under any formal Human Resources policy, but rather falls within the normal purview of management responsibilities in addressing staffing or managerial issues. Consequently, the meeting is intended to be informal, enabling us to look at future effective working relationships."

Shortly thereafter the hard copy of the e-mail of December 2001 was discovered. This led to the threat of disciplinary proceedings by Mr Williams. Mr Yeboah points to the terms of Mr Williams' case alleging serious misconduct against the Claimant produced to the Disciplinary Panel:

"On 11 December I was given by Julie Howell a copy of part of an email message sent by Conan to someone outside the University (Document 22). The message had been found on the main Learning Centre counter by the person in charge on the previous evening. The message contained defamatory and derogatory statements about the University and had been left where any member of staff could have read it. I copied the message to HR for advice an eventually discussed it with Karen Heaton on 9 January 2002.

On Thursday 10 January 2002 I spoke to Conan asking him to meet with Angela Robinson and myself about a potential disciplinary matter that I was investigating involving him (this was the mail message found on the counter). I made it clear that our meeting would be held in accordance with the University Procedures Relating to Conduct, Capability and Sickness Absence, paragraphs 4.4.1 and 4.4.2. At the end of our conversation, at his request, I gave Conan conformation in writing of what was proposed (Document 23)."

57. This evidence is reflected in the Decision of the Employment Tribunal at paragraph 57. The Employment Tribunal found that Mr Williams told the Claimant he was going to investigate the matter as a potential disciplinary matter. This showed that the immediate cause of the disciplinary hearing was the protected act, that is the sending of the e-mail, and there was accordingly a prima facie case of victimisation which the University was required to explain. The finding at paragraph 123 that Mr Henry was subject to victimisation was on the basis of earlier findings and of necessity it rejected the University's explanation both as to whether it was entitled to require the Claimant to participate in the procedure but also as to whether that was the true reason, on the facts, for calling him to the disciplinary hearing. In other words the Employment Tribunal rejected the University's explanation in its entirety. Thus the Employment Tribunal made sufficient findings to justify its conclusion that the calling of the Claimant to disciplinary proceedings and the written warning were acts of victimisation.
58. The majority, however, looking at the conclusions and reasons, do not consider paragraph 123 sufficiently clear. If the Employment Tribunal rejected the University's explanation on the facts it does not say so and it does not say why it rejects that explanation. If the University's case on the facts was disbelieved the University, on the authorities, was entitled to know this and why, and furthermore to be told clearly.
59. Accordingly we allow the appeal to the extent that the findings made by the Employment Tribunal in relation to the calling of the disciplinary hearing and the giving of the written warning amount to victimisation cannot stand on the basis of the Employment Tribunal's Decision. We accordingly remit the matter to the Employment Tribunal to make further findings as follows:

(a) Whether the Employment Tribunal accepted the University's explanation as to why it called the Claimant to a disciplinary hearing.

(b) If that explanation is rejected, why the Employment Tribunal has rejected it.

(c) If the Employment Tribunal accepts the University's explanation, whether in the light of our judgment the reason for calling for a disciplinary hearing (and consequently the discipline of the Claimant) was by reason of the Claimant having done a protected act, or whether for the reason put forward by the University. If the latter, the Employment Tribunal must reconsider its two findings of victimisation in the light of this Decision.