United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR STUART BRITTENDEN (of Counsel) Instructed by: Messrs Thompsons Solicitors Congress House Great Russell Street London WC1B 3LW
For the Respondent	MR NEIL VICKERY (of Counsel) Instructed by: Messrs Eversheds LLP Solicitors Senator House 85 Queen Victoria Street London EC4V 4JL

SUMMARY

Race Discrimination / Trade Union Rights

The Employment Tribunal incorrectly excluded unconscious discrimination from its consideration, contrary to Nagarajan, and on the s146 claim wrongly concluded that there was no detriment and gave inadequate reasons for its conclusion that there was no Trade Union motivation. Other outstanding unadjudicated grounds of appeal (not before full hearing on this occasion) prevented remission. Referral under Burns v Consignia to the same Tribunal to give answers on unconscious discrimination and reasoning for s146 conclusion on motivation (without further evidence, with further submissions and with opportunity for the Employment Tribunal to review if so advised of its own initiative).


 


THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)

1. This has been the hearing of an appeal by the Applicant, Professor Saeed Vaseghi, against the unanimous decision of the Employment Tribunal at Watford in Reasons sent to the parties on 7 July 2004, dismissing the complaints by the Applicant against the Respondent, Brunel University.
2. The claims that it dismissed were that the Respondent had discriminated against the Applicant by way of least favourable treatment on racial grounds or by way of victimisation contrary to the provisions of the Race Relations Act 1976, and that it had subjected the Applicant to a detriment, contrary to the provisions of section 146 of the Trade Union and Labour Relations Consolidation Act 1992. We shall, for ease of reference, call those two claims, aggregating them, albeit they were based on two separate originating applications, the "discrimination claim" and the "trade union claim".
3. The appeal by the Applicant was set out in 23 paragraphs and over 13 pages. The first ground of appeal is contained in paragraphs 9, 10 and 11 of the Notice of Appeal and is headed up "Motivation under the Race Relations Act 1976". This is a ground of appeal dedicated, of course, only to the discrimination claim, and it was addressed to the statement by the Tribunal in paragraph 8.2 of its judgement as follows:

"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."

4. Mr Brittenden, Counsel for the Applicant, who also appeared below, had argued the contrary below by reference to Nagarajan itself, and his Notice of Appeal reads as follows in paragraph 10:

"The tribunal erred in law in requiring the alleged discriminator to have a "conscious" state of mind for the purposes of the Applicant's claims of discrimination and or victimization. In Nagarajan, the House of Lords held that in order to succeed in a claim of victimization, there was no need to show that the persons responsible for the treatment had a conscious motive connected with the protected acts. It was enough for an applicant to show that the reason for the less favourable treatment was race/because of a protected act, whether or not that was something about which the discriminator was personally conscious of at the time. An alleged discriminator can act consciously or subconsciously. The tribunal has failed to consider the latter state of mind."

5. This is, of course, directed towards the last sentence of paragraph 8.2. The Respondent does not challenge the fact that there was an error by the Tribunal in this regard, and in its Respondent's Answer at paragraph 2, it stated:

"It is accepted that the Tribunal, despite being referred to the House of Lords' decision in Nagarajan and given the House of Lords' citation in its extended reasons, has referred to the Court of Appeal decision and cited a proposition from the Judgement at the Court of Appeal which was reversed on appeal to the House of Lords."

6. This appeal came before Judge McMullen QC on our sift, and he saw without, of course, the benefit at that stage of the concession by the Respondent, the force of the case made by the Applicant. He noted clearly the contents of the Notice of Appeal, which extends way beyond those paragraphs 9-11, to which we have referred, which are under the general rubric of ground one of the Notice of Appeal, and he made an order for expedition of a full hearing, by an Order dated 7 October 2004; and that indeed has occurred on the basis of paragraph 1 of his Order, which read:

"This appeal be set down for a full hearing confined to ground one of the Notice of Appeal. The time estimate for such hearing to be two hours."

9. When the papers came before me last week for the purposes of preparation, I appreciated that, on any basis, not all the grounds of appeal related to the discrimination claim, and that there was, in the Notice of Appeal, a challenge to the finding by the Tribunal in respect of the trade union claim. Paragraphs 19 and 20 of the Notice of Appeal read as follows (paragraph 19 dealing, in addition to the trade union claim, with another way of putting the appeal in respect of the discrimination claim, but we read the whole of the paragraph in any event):

"19. Further or alternatively by reason of the discrepancies outlined above, the Tribunal erred in failing to provide sufficient reasons in support of its decision on this matter for the purposes of the Race Discrimination/Victimization complaint, and/or in respect of the Section 146 TULCRA 1992 complaint or as to the purpose for which the Respondent so acted in commencing disciplinary proceedings against the Applicant."

"20 The Tribunal erred in deciding that a threat of intended disciplinary proceedings against the Applicant did not amount to a detriment [para. 9]. He was on a final written warning and could be dismissed for any further transgression. His evidence was that he spent a few months fearful for his job. The fact remains that a threat to the Applicant's livelihood amounts to a detriment, see Carter v Wiltshire County Council [1979] IRLR 331 and Carlson v Post Office [1981] IRLR 158."

10. This is a challenge to the conclusion of the Employment Tribunal, to which we have referred, dismissing the trade union claim. The basis on which it dismissed the trade union claim was a finding that there was no detriment, but that even if there had been a detriment, the purpose of the Respondent was not a prohibited purpose within section 146 of TULCRA. Section 146 reads as follows:

"1. An employee has the right not to be subjected to any detriment as an individual by any act or any deliberate failure to act by his employer, if the act or failure takes place for the purpose of (a) preventing or deterring him from being or seeking to become a member of an independent trade union or penalizing him for doing so. (b) preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time or penalising him for doing so, or (c) compelling him to be or become a member of any trade union or of a particular trade union or of one of a number of particular trade unions."

11. The Tribunal found in paragraph 6(xv) of its Decision, by reference to the fact that the Respondent set up an independent inquiry in relation to the Applicant's use of e-mails, the following:

"Included with e-mails sent by the Applicant to work colleagues or managers were e-mails sent in connection with his union activities. The Tribunal does not find that the Respondent acted for any of the three purposes set out at section 146 of the Act."

and at paragraph 9 under the heading "The Tribunal's Conclusions" the Tribunal continues:

"The Tribunal did not find that the complaint under section 146 of TULCRA had been made out either since the situations in which a detriment could be suffered did not appear to apply to the facts of this case upon the wording of the statute. However, if that is wrong the Tribunal would not have found the required motive in the Respondent ."

12. The ground, consequently, of the Applicant's appeal in this regard is that the apparent conclusion that there was no detriment was an error of law, not only by reference to Carter and Carlson, but now further by reference to Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337; and that there was no sufficient reasoning, in respect of the conclusion that the act of setting up and pursuing the disciplinary enquiry, if it constituted a detriment, was not for one of the prohibited purposes
13. On noting the existence of this ground, which we will call the "trade union ground" in the Notice of Appeal, I caused the EAT to contact both Counsel, both Mr Brittenden and
    Mr Vickery, who appeared for the Respondent both below and before us, to ask them to address that ground also before us, notwithstanding the Order of Judge McMullen, to which we have referred, and very commendably, in the short time available to both, they have done so in a very able way, and with considerable care in the Supplemental Skeleton, so that this ground also has been capable of full argument before us.
14. We turn then to ground one. It is plain that there was an admitted error by the Tribunal in failing to ask itself the necessary question as to whether there was, in addition to conscious motivation or causation, unconscious motivation or causation, which is required by the House of Lords decision in Nagarajan to be considered by a Tribunal addressing these issues of discrimination.
15. The immediate concession by the Respondent in its Respondent's Answer was coupled with a case there was no call for this Appeal Tribunal, as a result, to quash the Decision of the Tribunal and remit it, because effectively the same result would have occurred in front of the same, or indeed any reasonable tribunal, had the Tribunal addressed the question, and a careful Skeleton Argument was put in by Mr Vickery, in which he sought to address each of the heads of discrimination with which the Tribunal was required to deal, in order to seek to persuade us that the failure by the Tribunal to ask the question of whether there was unconscious discrimination or causation made no difference to the result.
16. In his Skeleton Argument, Mr Vickery has consequently addressed each head. In paragraph 13, he addresses the complaint about the award of a grade one upon the Appellant's annual performance review, and in paragraph 14 he addresses the Tribunal's conclusion as to the alleged discrimination, the manner in which the Applicant's appeal against his grade 1 was conducted, and the award to him of a grade 2 on appeal. In paragraphs 15 and 16 of his Skeleton, he addressed the imposition of a final written warning on the 3 July 2003, in paragraph 17, the failure to determine the Appellant's grievance, and he then addressed the other matters which were the subject of dispute in paragraphs 18 to 22. In each case, his assertion is that the question of motive, in the light of the Tribunal's findings, simply did not arise and could not have arisen, even if the question of unconscious motivation had been addressed.
19. 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.
20. There are assertions by the Applicant, through Counsel, contained in the grounds of appeal, which are not specifically before us, alleging that conclusions reached by the Tribunal were perverse. We have not considered them but, of course, the same arguments that are put forward as to why the conclusions this Tribunal reached were perverse may also be relevant to the issue as to whether the Tribunal might have reached a different decision, if it had considered unconscious as well as conscious discrimination, and we are certainly not in any position to sever off the arguments that might or might not be relevant to unconscious discrimination, which either were additionally relevant to conscious discrimination or not relevant to conscious discrimination.
21. It was clear to us from the outset of this Appeal, as we indicated in our provisional conclusion to Mr Brittenden when he opened his appeal, that we could not be satisfied as to what the result would have been if the Tribunal had asked itself this question, and consequently that in the broadest sense remission would be the right, indeed the only possible answer. We asked him to address us as to whether remission should be to the same or a different Tribunal. We had very much in mind the guidance given by this Appeal Tribunal in Sinclair Roche & Temperley v Heard [2004] IRLR 763, and subject to one very important point, to which we shall refer in a moment, nothing that Mr Brittenden submitted to us caused us to change from the provisional view of which we indicated to him, that if remitted, this would be a case appropriate to remit to the same Tribunal. This was a case which took five days of hearing with a number of witnesses. We understand that Professor Paul, who was one of the most significant witnesses called at the hearing, is no longer in good health and might not be available for a further hearing, and, in any event, as referred to in Sinclair Roche & Temperley, there is a great deal to be said by way of avoiding prejudice and cost to both sides for sending the matter back to the same Tribunal, where it can safely be done. In this case, what was being suggested, so far as the discrimination claim is concerned, is that the Tribunal had simply switched itself off before answering a relevant question. There is the further factor in favour of sending the matter back to the same Tribunal, namely that there would not, it seems to us, be any need to call any additional evidence, because this is not a case in which the Tribunal foreclosed consideration, either in evidence or submissions, of unconscious discrimination before reaching judgment. If that were the case, then there might have been some evidence, either not called or not cross-examined on, which would now need to be called or further called; but both sides agreed that such was not the case, and indeed it is quite plain that closing submissions were put forward upon the basis of there being at least open to the Tribunal a finding of unconscious discrimination, and it was only in its concluding decision that the Tribunal foreclosed that possibility.
22. Mr Brittenden sought to submit to us that because the Tribunal had wrongly applied the law in Nagarajan, and because it had, in a way in which we will refer later, incorrectly applied the law so far as concerns the law of detriment, it would be inappropriate to remit the matter back to the same Tribunal because its decision was flawed in that regard. We would not have concluded that that was a bar to sending it back to the same Tribunal, given the guidance which we would now give as to the proper applicability of the law; and we would repeat our opinion set out in Sinclair Roche that a professional employment tribunal is always prepared to reconsider a position, with guidance, if necessary, from an Appeal Tribunal, where it has made an error of law, and that this is not a situation in which the Tribunal has totally wedded itself to findings of fact from which it would find it difficult if not impossible to resile.
23. But that is where we would have gone, subject to hearing further argument, but for the further point which was then powerfully made by Mr Brittenden. He pointed out that there are other grounds of appeal in his Notice of Appeal, relating to the question of discrimination, which are not subsumed under what we have called ground one, and equally do not amount to allegations of perversity, which could be said to be associated with the failure to consider the question of unconscious discrimination. Those are in particular set out in paragraphs 13, 15 and 16 of the Notice of Appeal, and, as a result of Judge McMullen's Order, those matters are not before us, have not been argued, were not even the subject of last week's last minute request by this Tribunal for the parties to put together, as they have so successfully done, a case, and might need, as Mr Brittenden submits, Notes of Evidence (hopefully agreed under the paragraph 7 procedure laid down by the Practice Direction). If we were, consequently, to quash this Decision and remit this back even to the same Tribunal, we would need to quash the whole Decision, because otherwise there would remain, in part, some grounds of appeal to an existing Decision, and some grounds of appeal which would have been dealt with by way of quashing the Decision, which would then require reconsideration by the same or a different tribunal. That is the consequence of the otherwise extremely helpful short-cut taken as a result of Judge McMullen's Order, limiting the argument to ground one of the Notice of Appeal.
24. The Respondent's answer contained a key to this problem when originally served back on the 20 October 2004. It read as follows under the heading of "Submission":

It is suggested that in advance of the substantive Hearing of this Appeal the case is remitted [I think, in fact, what it meant was "referred"] to the Tribunal which heard the application…in accordance with English v Emery Reimbold & Strick Ltd [2003] IRLR 710 and Burns v Consignia plc [2004] IRLR 425 for the Tribunal to consider further its reasons for its decision, having regard to 1.1 the specific points made in the Notice of Appeal at Paragraphs 13, 19 and 21, which expressly or in substance are based on an allegation of failure to give adequate credence. 1.2. the decision of the House of Lords in Nagarajan v London Regional Transport [1999] IRLR 572."

25. That is, as will appear, more or less exactly what, with the approval of both sides, we now are about to do. The sadness is that that paragraph in the Respondent's Answer was not made the specific subject matter of an application by the Respondent, because, of course, pleadings are not read by anyone until the matter comes on for hearing, and so consequently this suggestion lay fallow. Had it been accompanied by an application on paper on notice, the Order we have now made might have been made in October, without the need for this full hearing to take place, although as it turns out it has been at least fruitful from the point of elucidating the trade union point.
26. Notwithstanding that suggestion to quash the Decision, Mr Brittenden clearly recognised that it would not be possible to quash the Decision and remit it back to the same Tribunal without dealing with the other grounds of appeal, for the reasons that we have indicated. But he submitted that we should, for that very reason, quash the entirety of the Decision and send the matter back to be reheard from scratch before another tribunal. We are quite clear that that is not appropriate, in these circumstances, for two reasons which intertwine:

(i) If we are of the view, as we are, that it is, on balance, not appropriate to send it back to a different tribunal, but that the right course is for it to go back to the same Tribunal, which thus leads to no need for the rehearing of five days of evidence and extra expenditure of costs, then this, of itself, ought not to be a reason for doing that which we would not otherwise do, simply because of the inconvenience of leaving certain grounds undecided pro tem.

(ii) We would, certainly not do that without considering the merits of those grounds, and we are in no position to conclude whether there are any merits in the paragraphs 13, 15 and 16, to which we have referred. We cannot possibly allow grounds which might well be of no merit whatever, to decide the course as to what to do, and to lead to the quashing of an entire Decision which we would not otherwise be quashing, for the reasons that we have given.

27. That leaves us with only one solution, unless we have been persuaded by Mr Vickery, as we have not been, that, notwithstanding the errors of law made by the Tribunal, this Decision could be upheld as undoubtedly right. The conclusion, therefore, must be to follow the suggestion made by the Respondent's Answer, to which we have referred. We have found the operation of Burns v Consignia extremely successful, as has been said on a number of previous occasions. It is always necessary to be concerned, as was said in English v Emery Reimbold, about the risk of a tribunal having a second bite of the cherry. On the other hand, given the professionalism, to which we referred in Sinclair Roche, of a tribunal, and the fact that in this case the tribunal will be guided by submissions on both sides and will be trammelled by its own Notes of Evidence, because there will be no fresh evidence called, we are satisfied, just as we would have been if the case had been remitted to the same tribunal, that this Tribunal can answer the questions which we will ask it to respond to professionally, and in a straight forward and fair way.
28. We turn then to what we propose to do by way of referral. The first matter is obvious, in the light of the judgement that we have given, namely that this Tribunal must be asked, on the basis of the evidence that it has taken, and no further evidence but with the assistance of any submissions from either side for which the Tribunal may call, what answer it would have given on this evidence, had it not foreclosed consideration of unconscious discrimination. That speaks for itself and is simply the completion of the job done by this Tribunal, which has first considered whether it is satisfied that there was conscious discrimination, conscious motivation, conscious causation, and must now proceed on the same evidence to consider whether there was unconscious discrimination, unconscious motivation, unconscious causation within Nagarajan.
29. The second matter relates to the trade union claim. Once again it has been conceded by the Respondent that the Tribunal erred, in relation to its application of the law to the issue of detriment, in the light of the authorities, to which we have referred earlier in this judgement, relied upon by the Applicant. It seems clear, and Mr Vickery does not resist this, that a tribunal must find that the very subjecting of an applicant to a disciplinary process, not to speak of the further effects, which it was asserted by the Applicant had followed, is a detriment, certainly given the very broad definition of detriment now established in the authorities. But this Tribunal did not rest its case on whether or not there was a detriment, and it did, as we have described, firmly resolve (and one can understand entirely why it did so) that none of the purposes proscribed by section 146 of TULCRA apply. It did so, however, in extremely brief terms in what could be called "conclusory terms" without dealing with the submissions or the evidence both ways, upon which those conclusion were based. It is quite plain that the Tribunal were, and no doubt were rightly, impressed by the fact that the inquiry that was set up was an independent inquiry under a Professor Schwartz, and that it was set up as a result of complaints made by parties which made it incumbent, as the Tribunal found, upon the Respondent to set up the investigation. In paragraph 2.9 the Tribunal made the following findings:

"It was said that in October 2003 the Respondent had received complaints from staff about inappropriate use of the Respondent's e-mail system in relation to the volume and content. The amount of time being expended in working hours on the sending of these e-mails appeared disproportionate and constitute an abuse of the system. In accordance with its guide lines, the Respondent had accordingly set up an investigation into the Applicant's use of e-mails appointed by Professor Newbold as a person unconnected with the complaints. The Applicant was kept informed of progress. In the circumstances of the complaints received, the Respondent had a genuine and appropriate reason for searching his e-mails."

and at paragraph 6(xiii) the Tribunal further found as follows:

"In response to complaints received from members of staff an investigation was carried out as to the Applicant's possible continued abuse of the university's e-mail policy, This angered the Applicant…The Applicant said that a plea that privacy would thus be violated prevailed [in another case] but not in his case. However, the Tribunal finds that that determination changed and that the search went ahead as requested. It was incumbent upon the Respondent to react to the complaints which it had received, and Mr Vickery relies heavily upon that conclusion by the Tribunal."

30. Mr Brittenden, however, points to a number of matters, which he has told us he relied upon in the course of submissions, arising out of the evidence, to seek to persuade the Tribunal that because, putting at its very lowest, there was something odd about what occurred in relation to the examination of the Applicant's e-mails, and because he was in fact a trade union official, inferences could be drawn with which the Tribunal had not grappled.
31. In paragraph 17 of his supplemental submissions, he set out the following:

"The decision suffers from the following wholesale lack of (a.) findings and (b.) reasoning/analysis as to the following matters (which were relied upon or advanced by A. in cross-examination and in closing submissions)."

Those submissions or questions raised include 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 complainants; 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."

32. Mr Vickery has not sought vigorously to contest his own suggestion in 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.
33. 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. It goes without saying, as is always the case on a Burns v Consignia referral, that if, on looking at its conclusions in the light of the submissions made and in the light of now needing to address in greater fullness the reasoning for its conclusions, the Tribunal, of its own initiative, concludes that it wishes to change its mind, then it can always feel free to do so; and to review the Decision of its own initiative is a matter it both has jurisdiction for and, of course, because of its professionalism, a readiness in appropriate cases to do.
34. The last matter, is a matter which Mr Brittenden added at the close of his submissions, and we conclude is a helpful suggestion. Inevitably, the adoption of this course at a full hearing is not what we would ordinarily have wished. We would normally have wished to have resolved all the grounds of appeal, either by dismissing them all or by dismissing some, as appropriate, and allowing those which would lead to a remission, either a remission to the same Tribunal or to a different one. We have explained how the position here arises, that, on any basis, we cannot deal with all the grounds of appeal against this Decision. The result of what we are, therefore, doing is leaving unheard certain of the grounds of appeal while sending back to this Tribunal others. It may be, of course, that the Tribunal, on the further consideration that is now necessary on the issue of unconscious discrimination, and the further consideration now necessary in relation to the trade union claim, will reverse its decision in any event. If, however, it reaches again the same conclusion that there was no discrimination, conscious or unconscious, and that there was no trade union discrimination, because, although there was a detriment, the Tribunal is able to set out its reasoning and stand by it as to why it was not for a prohibited purpose, then it is entirely still possible that the remaining grounds of appeal will still have to be considered.
35. The suggestion by Mr Brittenden, which we endorse, is that, whereas, of course, there is no compulsion upon the Tribunal whatever to do so, if on looking at the Notice of Appeal there is anything in the other grounds which are not specifically referred back to it which causes the Tribunal any concern, then, of its own initiative, it can, in the course of the consideration it is inevitably going to have to give to this Decision, review any or all of those matters, either by way of reconsidering and reversing its conclusion, or by way of further explaining any matters which are the subject of criticism by the Applicant in order to put the correctness, as it sees it, of its Decision, beyond doubt. We do not require the Tribunal to take that course. We simply point out that it would avoid any further appeal, or it would, or might, avoid any further appeal if there were any matters that it felt necessary to reconsider.
36. But that apart, we refer the matter, as invited effectively now by both sides, simply under Burns v Consigna in respect of unconscious discrimination and section 146 motivation. To that extent the balance of the Appeal is adjourned, and on ground one and the trade union claim we refer the matter to the Tribunal.