United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A MUNU MR L OGILVY (Lay representatives)
For the Respondents	MS C MCCANN (of Counsel) Instructed by: Messrs Beachcroft LLP Solicitors 100 Fetter Lane London EC4A 1BN


 


SUMMARY

Sex Discrimination – Victimisation / Inferring discrimination

Practice and Procedure

Application of s54A of the Race Relations Act 1976 to victimisation claims: Oyarce v Cheshire County Council UKEAT/0557/06/DA followed. Demonstrably erroneous finding on fact held not to affect decision since no further conclusions of fact were based on that demonstrable initial error.


 


THE HONOURABLE MR JUSTICE BEATSON

Introduction

1. This is an appeal from a decision of an Employment Tribunal sitting at London Central. Following a hearing lasting some 12 days, by a reserved decision promulgated on 12 October 2006, it unanimously dismissed the Appellant's claims for unfair dismissal, holiday pay, a redundancy payment, discrimination on the grounds of race. The claims were brought against the First Respondent, the Great Ormond Street Hospital NHS Trust, and six of the Trust's employees. The appeal was lodged on 20 November 2006. It comes before us as a result of the decision of HH Judge Serota QC on 30 May 2007 allowing in part a review under Rule 3(10) of the Employment Appeal Tribunal Rules 1993 SI 1993 No. 2854 of the decision of HH Judge Reid QC on 28 December 2006 that the appeal be disposed of pursuant to Rule 3(7).
2. The dispute arises from Mrs Munu's employment as an ANC Grade 3 secretary in the First Respondent's Strategic Development Department between 5 July 2004 and 29 July 2005. At that time the First Respondent was in the process of restructuring the department. Phase one took place in October 2004. Mrs Munu was not affected by it but two other employees were made redundant. In April 2005 the Phase two started. A consultation paper was published proposing that the secretarial post occupied by Mrs Munu and the post occupied by a Mr Rokowski (a white male) would be disestablished. There were consultation meetings on 26 April, 4 May and 15 June. It appears that Mrs Munu's post was disestablished during May or June 2005. Following an increasingly difficult atmosphere, on 1 July she was escorted from the premises by the Respondent's security staff. She had, prior to that, in a letter dated 2 June 2005 written to the First Respondent commenting on the reorganisation and expressing her concern that she was the only Afro/Caribbean member of staff at risk of being made redundant. Her claim to have been victimised is based on events which happened after that letter, one of the "protected acts" she relies on for the purposes of the legislation. The other protected act she relies on is a letter dated 14 July 2005. The Tribunal stated (paragraph 93) that the second letter cannot amount to a protected act for allegations of victimisation before that date. It thus only considered this letter in relation to an allegation about interviews on 10 August for posts in the Radiology department (see paragraph 127 of the Tribunal's decision). The facts are set out at length in the Tribunal's decision and are summarised in the decision of HH Serota QC.
3. The Tribunal found that in a number of important respects Mrs Munu was not a credible witness. These included her contention that a number of the Respondent's documents had been fabricated and her evidence about the date a recorded delivery letter from her to the First Respondent was posted. The Tribunal did not accept that a copy of the record of posting was an authentic record of transmission. It also concluded that she took advantage of the late service of her witness statement to introduce new and incredible evidence about Mr Rokowski by who the Respondent relied on as a comparator. There were also serious criticisms of the conduct of her representative at the hearing, a Mr Behanzin, who was not a member of either of the branches of the legal profession in this country.

The scope of the appeal

4. The grounds which Judge Serota held should go forward both concern the Appellant's claim that she was victimised contrary to section 2 of the Race Relations Act 1976 ("the 1976 Act"). The first ground is that the Tribunal erred in law in failing to apply section 54A of the 1976 Act to her victimisation claims. It is submitted by Mr Munu, the Appellant's husband who with Mr Ogilvy, spoke on her behalf, that, once facts have been identified from which a Tribunal could conclude that there has been victimisation, the burden of proof is clearly placed on the Respondents. They submit that the Tribunal fell into error in following the approach set out in King v Great Britain China Centre [1992] ICR 516. The argument is that, having regard to EU Council Directive 2000/43/EC and the decision in Igen v Wong [2005] IRLR 258, the approach in King's case that, in the absence of an adequate explanation for treatment which an Employment Tribunal could regard as victimisation, it will be "legitimate" for the Tribunal to infer that the victimisation was by reason of the protected act, is no longer permissible.
5. The second ground on which the appeal was permitted to go forward is that the Tribunal's finding that Ms Agin, the Fourth Respondent, did not know about her letter dated 2 June 2005 and could not, therefore, have been adversely motivated by it, was perverse. It is accepted by the Respondent that Ms Agin knew of the letter, and that this finding was perverse. There was clear evidence before the Tribunal of Ms Agin's knowledge of the letter in the form of emails dated 9 and 10 June 2005 from her to Ms Robinson and from Ms Neale to or copied to her. At the core of this part of the Appellant's case is the submission that the Tribunal's finding tainted its decision that conduct by Ms Agin was not victimisation because Ms Agin was not motivated by the protected act.
6. Judge Serota QC held that the remainder of the grounds of appeal were unarguable. He stated that the submission that the Tribunal failed to direct itself correctly about the discrimination claim and to apply the burden of proof required by section 54A was unarguable. He also rejected the submissions that the Tribunal was unaware of the need for "cogent evidence" where the facts presented by the Claimant could lead to a finding of less favourable treatment on the grounds of race, and that it failed to have regard to the Respondent's delay in answering the Race Relations Act questionnaire and failure to answer all the questions: see paragraphs 41-45 of his decision and paragraph 135 of the Tribunal's decision.
7. Judge Serota also stated the submission that the Tribunal's decision on holiday pay was perverse were unarguable in the light of the test in Yeboah v Crofton [2002] IRLR 634 paragraph 93. It was there stated that such an appeal based on the perversity of a Tribunal's decision could only succeed where an overwhelming case is made out that the Tribunal reached a decision which no reasonable Tribunal would have reached.
8. Understandably, the Appellant was particularly concerned about the Tribunal's adverse findings as to her credibility. Mr Munu said the decision had destroyed her career. Both Mr and Mrs Munu feel strongly that these findings were unwarranted and that an injustice has been done. There is, however, no appeal before us as to the Tribunal's credibility findings. Nor does it appear to us from careful consideration of the Tribunal's conclusions about her credibility that any appeal could properly be warranted against those findings. Although Mr Munu made us aware of their feelings about these findings, his submissions on behalf of his wife quite properly did not seek to revisit them.

Does the test in section 54A and in Igen v Wong apply to victimisation claims?

9. We have concluded that the answer to this question is 'no' in the light of the terms of the EU and national legislation and the decision in Oyarce v Cheshire County Council (UKEAT/0557/06/DA) decided by the EAT on 13 June 2007; since Judge Serota's rule 3(10) review. EU Council Directive 2000/43/EC does not require a reverse burden of proof in victimisation cases. The Directive and the1976 Act make a clear distinction between direct and indirect discrimination on the grounds of race or ethnic or national origins and harassment on the one hand, and victimisation on the other. They both distinguish the concepts of "discrimination" (as defined in the Directive and the 1976 Act) from that of "victimisation".
10. In the case of the Directive, Article 1 does not include victimisation in the concept of discrimination. It is concerned only with discrimination on the grounds of racial or ethnic origin. Article 2 defines discrimination and harassment. It provides that the principle of equal treatment (now in Article 13 of the EC Treaty) means "there shall be no direct or indirect discrimination based on racial or ethnic origin". Article 2(3) provides that harassment "shall be deemed to be discrimination". There is no provision that victimisation is to be "deemed" to be discrimination. Indeed, the concept of victimisation is not addressed in Chapter I of the Directive, entitled "General Provisions".
11. The requirement for a reverse burden of proof is contained in Article 8 of the Directive. This is in Chapter II of the Directive, which deals with "Remedies and Enforcement". After referring to the general principle of equal treatment, Article 8 provides that the requirement for a reverse burden applies where facts "from which it may be presumed that there has been direct or indirect discrimination" are established. It is therefore restricted to direct and indirect discrimination. Article 9 is headed "Victimisation". It provides:

"Member states shall introduce into their national legal system such measures as are necessary to protect individuals from any adverse treatment or adverse consequence as a reaction to a complaint or to proceedings aimed at enforcing compliance of the principle of equal treatment."

12. Article 9 makes separate provision to that in Article 8. It is particularly significant that, unlike Article 8, nothing is said in Article 9 about a reverse burden of proof. The recitals to the Directive support this distinction between discrimination and victimisation. Whereas recital 21 states that "the rules on the burden of proof must be adapted when there is a prima facie case of discrimination", recital 20 states only that "the effective implementation of the principle of equality requires adequate judicial protection against victimisation".
13. We turn to the 1976 Act. Section 54A provides:

"(1) This section applies where a complaint is presented under section 54 and the complaint is that the Respondent-

(a) has committed an act of discrimination on grounds of race or ethnic or national origins, which is unlawful by virtue of any provision referred to in section 1(1B)(a), (e) or (f), or part IV in its application to those provisions, or

(b) has committed an act of harassment". (emphasis added.)

14. Section 54A comes into play where the requirements of section 54 are satisfied. Section 54 provides:

"(1) A complaint by any person ("the Complainant") that another person ("the Respondent") –

(a) has committed an act…against the Complainant which is unlawful by virtue of part II, section 76ZA or, in relation to discrimination on grounds of race or ethnic or national origins, or harassment, section 26A, 26B, or 76; or

(b) is by virtue of section 32 or 33 to be treated as having committed such an act against the Complainant,

may be presented to an Employment Tribunal." [emphasis added.]

15. Section 3(3) of the 1976 Act provides that references to "discrimination" refer to any discrimination within section 1 or 2 and references to racial discrimination refer to any discrimination falling within section 1. Section 1 provides that a person discriminates against another if "on racial grounds he treats that other less favourably than he treats or would treat other persons" (section 1(1)(a)) or if the requirements of section 1(1)(b) and (1A) are met.
16. Section 3A makes provision for discrimination by way of harassment. It provides:

"(1) a person subjects another to harassment in any circumstances relevant for the purposes of any provisions referred to in section 1(1B) where, on grounds of race or ethnic or national origins, he engages in unwanted conduct which has the purpose or effect of –

(a) violating that person's dignity, or

(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him."

17. Section 54, accordingly, applies to complaints that a person has been subjected to discrimination or harassment which is unlawful by virtue of Part I of the Act. Part II contains the provision relating to discrimination in the field of employment. The essential words of section 54A(1) are the requirement that the complaint is about "discrimination on grounds of race or ethnic or national origin".
18. We accept Ms McCann's submission in paragraph 16 of her written submissions that the statutory language of section 54A, read together with sections 1-3 and 3A make it apparent that section 54A only applies to; (1) direct discrimination on grounds of race or ethnic or national origins, (2) indirect discrimination on grounds of race or ethnic or national origins, and (3) harassment (which can only arise where it occurs on grounds of race or ethnic or national origins). In each case the discrimination or harassment must be unlawful by virtue of the provisions in part II, sections 26A and 26B, sections 76 and 76ZA, and Part IV in its application to those provisions.
19. It is thus seen that discrimination by way of victimisation is specifically not included within the scope of section 54A. As in the Directive, the 1976 Act deals with victimisation as a separate concept. Section 2 provides:

"(1) A person ("the discriminator") discriminates against another person ("the person victimised") in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons and does so by reason that the person victimised has –

(a) brought proceedings against the discriminator or any other person under this Act; or

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under the Act; or

(c) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person; or

(d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them."

20. The argument that the Directive and the 1976 Act contains a single concept of discrimination which embraces direct and indirect discrimination on grounds of race or national origins and discrimination by way of victimisation was rejected earlier this year in Oyarce v Cheshire County Council. The EAT said in that case (paragraph 38) that it appears that there has been a deliberate attempt to distinguish between discrimination on grounds of race and victimisation in that the reverse burden applies to the former but not to the latter. We respectfully agree. In Oyarce's case the EAT observed (paragraph 37) that in this the legislation relating to race discrimination appears to differ from the legislation relating to sex discrimination and other forms of discrimination. It seemed to be the case that, in other categories of discrimination, the reverse burden of proof applies equally to all types of discrimination however caused, whether direct or indirect, or by way of victimisation. The EAT said that, while that gave them pause for thought, it did not enable them to construe the legislation in the way proposed by counsel for the employer. Ms McCann suggested to us in paragraph 28 of her written submissions that there might be a sound policy reason for distinguishing direct and indirect discrimination and harassment from victimisation. This is that in victimisation cases the complaint is not about less favourable treatment on racial grounds but about less favourable treatment because the complainant has complained about race discrimination or given evidence in proceedings under the 1976 Act. She suggested that the protection is more akin to the protection afforded to whistleblowers where there is no statutory reversal of burden of proof because victimisation is probably easier for a Claimant to prove than direct or indirect discrimination. While this may be so, it is a reason that would also apply to victimisation in the context of sex and other forms of discrimination where no such distinction is made, and this does not explain the difference.
21. The Appellant submitted that we are not bound by the decision of the EAT in Oyarce's case. It was argued that it is wrong. The Appellant relied on criticisms and the distinction in the responses by the Commission for Racial Equality and the Law Society to the Government's Consultation Paper "A Framework for Fairness: Proposals for a Single Equality Act for Great Britain". The CRE states that it is a seeming anomaly that the burden of proof arrangements in the 1976 Act do not apply to unlawful race victimisation and recommended that any anomaly is rectified legislatively. We must, however, apply the law as it is.
22. The Appellant also submitted that we should not follow the EAT in Oyarce because it did not take into account statements in Igen v Wong [2005] IRLR 258, EWCA Civ. 142, especially at paragraph 18, Laing v Manchester City Council EAT 28 July 2006, especially paragraph 72, and Madarassy v Nomura [2007] EWCA Civ 33 at paragraph 60. These refer to the effect of the statutory change in section 54A on the test in King v Great Britain China Centre [1991] IRLR 513. They state that the test in King's case needed alteration in the light of those changes. It was submitted that the statements in those cases were not restricted to discrimination cases in the narrow sense but apply to victimisation. In both Igen v Wong and Laing v Manchester City Council allegations of victimisation had been raised.
23. In Igen v Wong the Tribunal, the EAT and the Court of Appeal treated all the allegations including victimisation as subject to section 54A. The point before us was however, not argued in that case, and the Court of Appeal did not consider the different regimes for discrimination and victimisation in the Directive and the 1976 Act.
24. The point does not appear to have been argued in Laing's case either. Moreover, the EAT's comments about the burden of proof are in the discussion in the section of its decision headed "discrimination". The Tribunal turned to "victimisation" in paragraph 85, under a separate heading. It cannot be inferred that what was said in relation to discrimination in a different section of the decision was meant to apply to victimisation which is dealt with later.
25. As far as Madarassy's case is concerned, again the approach to be used in a claim of victimisation was not considered by the court. Moreover, even if the reverse burden of proof applies, Mummery LJ's statement (in paragraph 56) must be borne in mind. His Lordship stated that Igen v Wong:

"…expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the tribunal could conclude that the respondent 'could have' committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal 'could conclude' that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination."

26. In paragraph 57 Mummery LJ stated that "could conclude" meant that "a reasonable tribunal could properly conclude" from all the evidence before it, including evidence adduced by the respondent contesting the complaint. In the context of claims of victimisation, the approach of the Tribunal in the Appellant's case, is, for the reasons we give below, perfectly consistent with this approach. It is not enough for a complainant simply to point to a protected act. It is necessary for the complainant to adduce evidence from which a reasonable tribunal could properly conclude from all the evidence before it, including evidence adduced by the respondent, that there has been less favourable treatment. It is only at that stage that the tribunal is required to consider the causative link between the treatment and a protected act.
27. As far as Relaxion Group Plc v Rhys-Harper [2003] UK HL 33 is concerned, the context of their Lordships' comments is entirely different. They were concerned with the interpretation of slightly different language in different discrimination statutes. In particular, they were concerned with whether the phrase "employed by him" in the 1976 Act and the Sex Discrimination Act 1975 should be given a different meaning from the phrase "whom he employs" in the Disability Discrimination Act 1995. Their Lordships were not considering what, if any, differences there were between provisions on discrimination and those on victimisation. They had no regard to the provisions of the Directive or the 1976 Act set out above. Moreover, in one the paragraphs relied on by the Appellant, Lord Nicholls of Birkenhead in fact referred to the distinction between a claim for victimisation under the Sex Discrimination Act and a similar claim under the Disability Discrimination Act because at that time the Equal Treatment Directive (76/2077/EEC) applied to sex discrimination but not to race or disability discrimination: see paragraph 16.

Did the Tribunal's approach in fact meet the requirements of section 54A?

28. Ms McCann's fall back position was that, even if the Tribunal erred in failing to apply section 54A to the Appellant's claims of victimisation, it in substance met the requirements of that section. She said this was because in respect of each allegation of victimisation the Tribunal made clear findings that there was either no "less favourable treatment" or that any such treatment was not for a prohibited reason. In view of our conclusion about the scope section 54A it is not necessary for us to deal with this. We, however, do so for two reasons. The first is in case Oyarce's case, which we understand is before the Court of Appeal, is reversed. The second is because of the strength of the feelings of the Appellant and her husband to which we have referred in paragraph 8.
29. In respect of the allegations of victimisation by Ms Agin it is convenient to consider this point together with the submissions as to the consequences of the Tribunal's error about Ms Agin's knowledge of the letter of 2 June 2005. We do so in paragraphs 40-51 below. We deal with the remaining allegations here. Leaving aside the allegations concerning Ms Agin the following allegations of victimisation were made by the Appellant and considered by the Tribunal:

(1) That she was victimised at a meeting on 15 June 2005 in that both Trevor Clark and Angie Neale failed to have regard to her comments in the consultation process, and showed no interest in slotting in or redeploying her making it clear that they wanted her out;

(2) That on 29 June 2005 she was told by Kate Joseph, her immediate line manager, to stop spending time looking for another job;

(3) That on 30 June she found her desk and chair taken over by Kate Joseph's files;

(4) That on 10 August 2005 after she had left her employment she was interviewed for two posts in the Respondent's Radiology department and was not appointed to either post.

30. With respect to the first allegation, the Tribunal (see paragraph 98) accepted the Respondent's evidence that there was a freeze on recruitment at the time, that a vacant administrative post in another department was a higher graded post than the Appellant's, and that consideration was being given to upgrading it further which was subsequently done. The Respondent's policy did not make provision for a person to be slotted into a post outside their own department or at a higher grade. (Paragraph 100.) The Tribunal concluded (paragraph 100) that the fact that the Appellant's request to be transferred to the vacant post was refused did not mean that Trevor Clark and Angie Neale failed "to engage with" the consultation process or to have regard to the appellant's comments. The Tribunal thus, in substance, found that there was no less favourable treatment of the Appellant. It also stated (paragraph 100) that there was no evidence before it that Trevor Clark and Angie Neale's considerations were consciously or unconsciously influenced by the Appellant's protected act. The allegation by the Appellant that Trevor Clark and Angie Neale made it clear that they wanted her out was not supported by the evidence of Mr Grasso, her trade union representative.
31. The Tribunal found that the Appellant "failed to establish the primary facts" on which she based her allegation that on 29 June she was told by Kate Joseph to stop spending time looking for another job and this amounted to an act of victimisation. It reached this conclusion as a result of a number of findings about this allegation. The first, (see paragraph 103) was that she had agreed in January and February that her "short term objectives included organising and tidying the stationery room and shredding confidential papers". On 15 June she had been warned that she would be required to undertake other ad hoc duties.
32. The second allegation (see paragraph 104) was that, when asked by Ms Budd, a colleague from the Medical Records department to help with filing, something within her job description, the Appellant asked for this to be confirmed in writing and said she was busy completing application forms for employment. Thirdly, it found (paragraph 107) that when Kate Joseph saw the Appellant's email exchange with Ms Budd, she reminded the Appellant that her primary responsibility lay with fulfilling her role or other designated duties. Fourthly, it found that Kate Joseph stated that the Appellant was free to attend interviews and make enquiries about finding a new position but that she should do this during quiet times. It also found that Kate Joseph did not instruct the Appellant to stop her job search. Again, the findings made in rejecting this complaint amount to a finding that there was no less favourable treatment of the Appellant.
33. We turn to the third allegation. The Tribunal found (paragraph 109) that that the files on the Appellant's desk and chair on 30 June were not Kate Joseph's files but were general office files which had been sorted for shredding, a task it had been agreed was part of her role in January and February 2005. The Tribunal found (paragraph 109) that by the time of this incident the Appellant was reluctant to carry out any work under Ms Joseph's direction and rejected the suggestion that this action was on the grounds of race, or that its effective cause was related to any protected act. This finding amounts to a finding that the Appellant was not less favourably treated in respect of this allegation. The files were left on her desk and chair by reason of the fact the files had been sorted for shredding which was part of her job role.
34. The fourth allegation was of victimisation in relation to the posts in the Radiology department. The Tribunal found (paragraph 127) that the person who interviewed the Appellant for the posts was ignorant of either of the protected acts on which the Appellant relied and so could not have been adversely motivated to victimise her.
35. We accept the Respondents' submission that, given the approach of the Tribunal to each of these allegations of victimisation, the outcome would have been the same had it applied section 54A to them. In each case the Tribunal considered whether there had been less favourable treatment. Even where it found that there had not been, it went on to consider the reason for what had occurred and to finding the reason. The reason found in each case was not a prohibited reason.
36. The Appellant also argued that the Tribunal erred in its approach to the allegations of victimisation because their findings do not give a sufficient account of their reasons to demonstrate how they dealt with the protected acts. It was argued that the last two lines of paragraphs 96 and 97, the last four lines of paragraph 98 and paragraphs 100, 107, 108, 112 and 115 of the Tribunal's decision did not set out the correct statutory test and do not refer to "less favourable treatment" or deal with whether the protected acts were the reason for the less favourable treatment asserted by the Appellant. Essentially it is submitted that, notwithstanding the Tribunal's articulation of the approach to be used in paragraph 17 of its decision, in its application of those principles to the circumstances of this case it fell into error. This criticism of the Tribunal's approach to section 2 of the Act and to its reasons in dismissing the allegations of victimisation were, however, not grounds which Judge Serota permitted to go forward at the Rule 3(10) hearing. They are, accordingly, not matters properly before us.
37. In any event, we do not consider that the Tribunal erred in its approach to section 2 or that its reasons were inadequate. For the reasons given above, the Tribunal either concluded that the Respondent had not treated the Appellant "less favourably" than it treated other persons and/or made a finding as to the reason for which the Respondent acted, and gave that reason. It is clear from the paragraphs relied on by the Appellant that the reasons for any less favourable treatment were entirely legitimate circumstances.
38. The protected acts are in fact referred to in paragraphs 96, 100, 109 and 127. The brief way in which they are referred to reflects the fact that in relation to the meeting on 15 June and the complaints about Kate Joseph's behaviour on 29 and 30 June the Claimant failed to establish the primary facts upon which her assertion of victimisation was based. There was no need to consider the protected act because there was no "less favoured" treatment. In relation to the meeting on 15 June the Tribunal specifically concluded that it had no evidence that Trevor Clark and Angie Neale were influenced consciously or unconsciously by reference to a protected act. A similar finding is made in relation to the complaint about Kate Joseph's behaviour on 29 June: see paragraph 108. In relation to the complaint about Kate Joseph's conduct on 30 June, it accepted that she was not aware of the Appellant's letter of 2 June 2005. The Appellant relied on only two protected acts, one of which (see paragraph 2 above) post dated these incidents, and the other of which was unknown by Ms Joseph. In relation to the posts in the radiology department, the Tribunal found (paragraph 127) that the person who interviewed the Appellant was ignorant of both of the protected acts and so could not have been adversely motivated to victimise the Appellant.
39. We have concluded that, notwithstanding the way it formulated the applicable test, the approach of the Tribunal to these allegations of victimisation in fact satisfied the requirements of section 54A. For this reason too, the first ground before us does not succeed.

The allegations of victimisation involving Claire Agin

40. We now turn to the allegations of victimisation involving Claire Agin. We consider both the "burden of proof" point and the "perversity" point in relation to these.
41. The allegations of victimisation by Claire Agin are that on 28 June 2006 she asked the Claimant to undertake cleaning and other menial tasks, and that on 30 June Ms Agin told her she would not be short-listed for the post of PA to the Assistant Director. It is also alleged that later on 30 June when she was trying to phone her union, Ms Agin stood next to her and interrupted her. The final allegation is that on 1 July Ms Agin had her physically removed from the premises.
42. It is submitted that the Tribunal's statement in paragraph 15, tainted as it was by a clear error as to Claire Agin's knowledge of the letter of 2 June, means that it's finding that there was no unlawful victimisation by Claire Agin cannot stand. The crucial part of the decision for these purposes is paragraph 115. This states:

"There is no evidence that the reason for the Respondent's conduct over this period was because the Claimant had raised issues about the trust's duties under the Race Relations Act. We accept Claire Agin's evidence that she did not know about the letter of 2 June and could not have been adversely motivated by it and we are satisfied that Ms Joseph's actions were not affected by it either."

43. But for this mistake we do not consider that the findings in respect of the allegations concerning Claire Agin show an inappropriate approach to the burden of proof or are perverse. The question is whether that mistake means that the decision of the Tribunal in respect of the allegations against Ms Agin must be overruled.
44. Ms McCann's primary submission is that it is apparent from the evidence before the Tribunal that in paragraph 115 the Tribunal confused the names of Ms Agin and Ms Joseph. She submitted that it was clear that Ms Joseph did not know about the letter of 2 June. Ms Joseph's evidence on this had not been challenged in cross examination. When Ms Cook, who chaired the Tribunal, asked the Appellant during her cross examination what reason she had for saying that Ms Joseph had seen the letter of 2 June, the Claimant stated she had no proof. In the light of this Ms McCann submitted that we should accept that the Tribunal must have accepted Ms Joseph's evidence that she did not know about the letter and was satisfied that Ms Agin's actions were not affected by it but transposed Ms Agin's name and Ms Joseph's name in paragraph 115. We reject this argument. It is possible that, had this point been picked up soon after the decision either by the Tribunal or by the Respondent, it could have been corrected under the slip rule. It was, however, not so corrected. In the light of the length and complexity of the decision this is not surprising. This Tribunal did not pick up the point and seek clarification from the Tribunal chairman after the appeal was lodged and the Appellant took the point and relied on the emails to which we refer in paragraph 5. It is now far too late to reopen paragraph 115.
45. Accordingly, we turn to the question as to whether, on the assumption that the Employment Tribunal failed to appreciate the evidence concerning Ms Agin's knowledge and made a finding which was manifestly mistaken, that vitiates its conclusions in relation to the allegations of victimisation made against Ms Agin. By section 21(1) of the Employment Tribunal Act 1996 a "question of law" includes the situation where there is no evidence to support a particular conclusion or finding of fact and where the decision is either perverse in that is one which no reasonable Tribunal, directing itself properly on the law, could have reached or was one which was obviously wrong. In BT plc v Sheridan [1990] IRLR 27 at paragraph 31, Ralph Gibson LJ stated:

"Misunderstanding or misapplying the facts may, in my view, amount to an error of law where the Tribunal has got a relevant, undisputed or indisputable fact wrong and has then proceeded to consider the evidence and reach further conclusions of fact based on that demonstrable initial error".

46. It is clear that, in respect of the allegation that on 28 June the Appellant was asked by Ms Agin to undertake cleaning and other menial tasks. But it is also clear that the Tribunal found there had been no less favourable treatment of the Appellant. Clearing, shredding and tidying the stationery cupboard had, at least since February 2005, been part of her duties. She had agreed these with Ms Joseph as "short-term objectives": see paragraph 103. The Tribunal referred to the fact that, whereas in her statement the Appellant complained that Ms Agin instructed her "to shred three boxes of documents and clean and pack her office stationery cupboard", in her oral evidence she said she had been asked to undertake "cleaning". It also found that on 15 June the Appellant had been warned that in the light of the foreseen reduction in her workload she would be required to carry out other ad hoc duties. Accordingly, it found that the tasks she was asked to undertake were part of her job, jobs that she had been accustomed to doing for several months, and that there was nothing to suggest that a while non-African comparator in the same circumstances would not have been asked to do the same work. We are satisfied that this is a finding that there had been no less favourable treatment of the Appellant in respect of this matter. Accordingly, the mistake as to Ms Agin's knowledge of the letter of 2 June was irrelevant and does not affect this finding.
47. We consider that this is also the position in respect of Ms Agin's informing the Appellant that she would not be short-listed for the post of PA to the Assistant Director. The Tribunal recognised (at paragraph 97) that it had been reasonable at the meeting on 15 June for the Appellant to raise the possibility of her being used to cover a vacant administrative secretarial post at grade 4 but also accepted in relation to that post that the Claimant could not be slotted into it inter alia because it was at a higher grade than her post: see paragraph 98. It is in that context that Ms Agin's opinion that the Claimant had not demonstrated some of the skills essential to the PA to the Assistant Director's role and that her own role was less demanding and less proactive must be judged. This conclusion is based on the same considerations as those concerning Trevor Clark and Angie Neale at the meeting on 15 June.
48. The context of the incidents on 30 June are that by then the Appellant was reluctant if not unwilling to carry out any work under Ms Joseph's direction, had adopted an uncooperative attitude to Ms Budd's request (see paragraph 31 above) and had not completed any of the work she had been asked to do that afternoon. For the reasons we have given (paragraph 30) that work was part of her task. In the case of the alleged interruption of the telephone call, the Tribunal's reasons for preferring Ms Agin's evidence were not connected to her knowledge of the protected act but reflected the increasing non-cooperation with colleagues and her immediate line manager Ms Joseph in the proceeding days and the Tribunal's overall conclusions as to the Appellant's credibility, which is not a subject of appeal. Their findings about her uncooperative attitude were not dependent on Ms Agin's evidence.
49. Finally, Ms Agin's role in the Appellant being escorted from the premises by hospital security officers on the morning of 1 July, must also be seen in the context of what had happened in the proceeding days and what had happened that morning. Ms Joseph's evidence was that the Appellant refused to acknowledge her presence, ignored her request to accompany her to the stationery room where she could show her some work that she wanted her to do and did not respond when she asked her whether she was ignoring her. The decision to remove the Appellant was made by Angie Neale in the personnel department from whom Ms Agin sought advice. The union representative, Mr Grasso, gave evidence that he had witnessed people being removed by security several times and said that it was "quite usual in redundancy situations".
50. Standing back, and looking at all the evidence before the Tribunal and the individual findings on the Appellant's allegations of victimisation by Ms Agin, we are satisfied that the Tribunal did not reach further conclusions of fact based on the demonstrable error as to Ms Agin's knowledge of the protected act. We have concluded that the error as to Ms Agin's knowledge of the letter of 2 June had no material consequence with regard to the Tribunal's reasoning in connection with the Appellant's allegations of victimisation made against Ms Agin. In respect of each of those allegations the Tribunal either found that there had been no less favourable treatment or that there were cogent and permissible reasons for the treatment complained of. Accordingly, and for these reasons, this appeal is dismissed.