United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR ALAN PAYNE (Of Counsel) Instructed by: The Treasury Solicitor (Employment Team) Queen Anne's Chambers 28 Broadway London SW1H 9JS
For the Respondent	MR LAWRENCE DAVIES Solicitor Messrs Imran Khan & Partners Solicitors 52-53 Russell Square London WC1B 4HP

SUMMARY

Following firm prompting to conciliation, consent to allow appeal and to remit 2 questions to ET, expressly in the context of a set of undertakings for the future ongoing employment and resolution of all claims.


 


HIS HONOUR JUDGE McMULLEN QC

1. This has been an unusual day for the three members of this Appeal Tribunal. The start of the story is a direction which I gave on the sift that the parties consider the services of conciliation or mediation for it appeared to me that this was a paradigm case. The parties before the Employment Tribunal have won and lost and if one put it crudely the Applicant failed in more complaints than she won. What remain of the Employment Tribunal's findings after dismissal of certain claims as being out of time, and dismissal of others on the merits, is one outstanding finding of victimisation. Claims of race discrimination in its pure sense were not pursued.
2. As a result of that finding, the Tribunal on another date went on to assess remedies and awarded the claimant £3,500.00 compensation plus interest of £184.68. We are heartened to hear that that sum was made over without, apparently, any condition depending upon the result of this appeal.
3. Sadly, my imprecation to the parties to avail themselves of conciliation (made ahead of its time for there is from 9 December 2004 a protocol between the EAT and ACAS) came to naught. On the opening of this we again reflected upon whether it would be possible for the parties to reach some accommodation. We have been told that Mr Neale, who is the prime witness of the Home Office and against whom the allegation was made of victimisation, is due to take early retirement. The Claimant is in the middle of discussions to transfer to a different department. The events to which this successful claim of victimisation attaches took place in the middle of 2003 and the parties have in one form or another to live together in an employment relationship, which of course connotes mutual trust and confidence.
4. We also drew the attention of the parties to a recent emanation on the subject of the burden of proof which is the judgment of Burton P and members in Sinclair Roche & Temperley v Heard [2004] IRLR 763. We indicated that since the issue of the burden of proof under the anti discrimination statutes is to be heard by the Court of Appeal in three appeals in February we would be disinclined to add to the volume of words on this subject and would follow Sinclair Roche unless persuaded by extraordinarily cogent submissions not to do so.
5. We also note that there appears to be no appeal against the finding by this Employment Tribunal that the new burden of proof does not apply to a race discrimination claim of victimisation. Having made those two observations, the burden of proof and possible conciliation, the parties withdrew and after an extraordinary amount of hard work, have come out with a draft Consent Order. The Practice Direction requires a judgment to be made by us as to whether it is proper to set aside a Tribunal judgment. The scope is limited.
6. We have accepted the joint submission of counsel that the Employment Tribunal's decision should be affected in the following way by a remission. The Employment Tribunal Chairman, after consultation with the members, is invited to make findings and give reasons on two questions:

a. Did Mr Neale know of the protected act on 30 April 2003?

b. What is the Tribunal's assessment of Mr Neale's explanation for the comment which he says he made at the training programme in the context in which he used it?

7. Those questions will obviously illuminate the judgment. If that were all in this case it may be that we would have paused and require further argument, but we are satisfied that it is in the interests of justice and in the public interest that we give effect to the agreement reached between the parties. The practical effect is that the appeal is allowed in part with remission of those two questions to the same Employment Tribunal. It is expressly part of our judgment that it is in the context of the wider agreement reached between the parties which contains obvious benefits to both sides and, what is most important to them and in which we will invest, the future of the working relationship between the claimant and officers in the Home Office. We are assured that once the undertakings have been carried out the Claimant will notify the Employment Tribunal that she withdraws her claim.
8. So, in order to give its effect to the spirit we will accept the undertakings given and make Order sought. This is indeed a proper case in which to make the Order setting aside the Decision, allowing the appeal and remitting those two questions. It is also in accordance with the overriding objective that where possible parties to an employment relations dispute should be able to agree resolution of it between themselves and we are happy that the parties have been able to do that before us today.
9. It could not have been done without a good deal of common sense and careful advice by the parties themselves and of course the advocates to whom we give our thanks.