United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr L Davies (Solicitor) Equal Justice Solicitors 15 Southampton Place London WC1A 2AJ


 


SUMMARY

Following a preliminary hearing in a case in which the Claimant had been successful in a claim that he had been unfairly dismissed but unsuccessful in claims that he had suffered racial discrimination and victimisation, and had sought to appeal, the appeal was dismissed.


 


THE HONOURABLE LADY SMITH

Introduction

1. This case concerns claims of race discrimination and victimisation. This judgment, which follows a preliminary hearing, represents the views of all three members. We will refer to parties as Claimant and Respondents.
2. The Claimant seeks to appeal against a decision of the Employment Tribunal sitting at Edinburgh, Chairman Mr A Worthington registered on 21 August 2006. The Claimant was represented before the Tribunal by Mr Davies, as he was before us. The Respondents were represented before the Tribunal by senior counsel. They lodged a written submission for the purposes of the preliminary hearing. The Claimant claimed that he had suffered racial discrimination, victimisation and that he had been unfairly dismissed. He was successful in establishing that he had been unfairly dismissed but the Tribunal were not satisfied that he had suffered discrimination whether directly or through being victimised.

Background Facts

3. There is much detail in the Tribunal's findings as is only to be expected in a case which lasted some forty days. For present purposes it is only necessary to note that the Claimant is a research scientist who has, for many years, worked in the field of genetics and stem cell research. He was recruited by the first Respondents' predecessors to work at the Babraham Institute in Cambridge, in 1986, where he completed his PhD and he moved to work at the Roslin Institute in 1999, still in the employment of the first Respondents. He was dismissed from his employment there by letter dated 15 June 2004 which indicated that the dismissal was due to an irretrievable breakdown in relations between the Claimant and management. He had, prior thereto, lodged a grievance against Professor Wilmut, who also worked at the Roslin Institute. It was rejected, as was his subsequent appeal against the rejection of his grievance. He appealed against the dismissal but his appeal was unsuccessful.
4. The Tribunal found that the reason the Respondents dismissed the Claimant was that he was an unsatisfactory employee in many respects. They found that he was arrogant, vain, rude, aggressive, a bully and overall, an extremely difficult individual to work for, work with and to manage. He had failed to do what his job required of him. He had failed to collaborate with Professor Wilmut at the Roslin Institute.

The Tribunal's Decision

5. Whilst the Tribunal were satisfied as to what had prompted the dismissal decision, they were not satisfied that the first Respondents acted reasonably in treating their reasons for dismissal as sufficient for dismissal at the time when they dismissed him. They were very critical of a failure to make the Claimant aware of relevant evidence in the form of a report which the first Respondents had commissioned which was favourable to him, of a failure to make available to him the grounds for or evidence of a recommendation to dismiss that they had before them and of a failure to interview the Claimant either before the recommendation to dismiss was made or before the decision to dismiss was taken; he had no opportunity, it seems, to put his case on the merits or in mitigation. Further, although he utilized the first Respondents' appeal procedure, it was not a rehearing, only a review and did not serve to cure the defects at first instance.
6. The Claimant alleged that he suffered direct race discrimination in various respects, in the way he was treated by colleagues and management at both Babraham and Roslin and also by being dismissed. He alleged that he had suffered victimization arising from his having lodged a grievance against Professor Wilmut and having appealed its rejection which resulted in him being dismissed and being dismissed in an unreasonable fashion.
7. The Tribunal were not, however, satisfied that the Claimant had suffered racial discrimination or victimisation. It is evident from their judgment that much time and effort was devoted to these two topics both at the hearing and in the course of their deliberations. The Tribunal set out a clear history of the events in the course of the Claimant's employment that they found to have been established in evidence. In respect that many of those findings were made on the basis of the evidence of witnesses whose credibility and reliability was challenged on behalf of the Claimant, they explain, in some detail, why they found witnesses credible and reliable where they did so (which, in the case of the vast majority of the Respondents' witnesses) they did. They also explain, in some detail, why they have preferred the evidence of the Respondents' witnesses where there was any discrepancy between it and that of the Claimant; they explain that they had doubts about the credibility and reliability of the Claimant on account of his having secretly recorded various meetings with the Respondents and having given an unsatisfactory explanation for having done so.
8. At paragraph 331, the Tribunal state:

"…we certainly do not agree with the Claimant's view that throughout, he was subject to what can only be described as a conscious and continuous campaign by countless individuals, both at managerial level, at peer level, and below, all with the single aim of discriminating against him on racial grounds."

They then go on and consider whether there was sufficient evidence for an inference of race discrimination to be drawn, taking account of relevant authorities (including the case of Anya v University of Oxford [2001] IRLR 377, which was relied on by Mr Davies in the course of the hearing) and deducing from them: that the primary facts of the case must appear to point to race discrimination, that they required to look at the whole course of the treatment of the Claimant including matters that occurred outwith the limitation period and after (if affording evidence from which discrimination could be inferred), that it may be inferred from an employers' unreasonable treatment of an employee that there has been discrimination but that will not necessarily be the case and that as regards the issue of credibility, it cannot be the sole determinant since discrimination (and victimisation) does not have to be deliberate or even conscious and thus a finding that a Respondent is not a credible witness will not necessarily be fatal. They did, however, observe that in the present case, where 24 witnesses were led on behalf of the Respondents, that if they were to have concluded that their evidence was on the whole not credible or reliable, then that would be a significant pointer in the direction of discrimination. That, we observe, is an approach which was favourable to the Claimant. It was also, plainly, influenced by the fact that Mr Davies had, through cross-examination of those witnesses and in his submissions, put the credibility of the Respondents' witnesses in issue.

9. The Tribunal then set out in summary what they took from each of the Respondents' witnesses and explain their findings on credibility and reliability in respect of each of them. None of the findings in respect of that evidence amount to express racial discrimination having occurred. We note that, as they worked their way through the evidence of each witness, they took account of the challenges raised and they explain, where appropriate, why they were not persuaded that any negative actions or attitudes of the witnesses had anything to do with race. An example is in relation to the evidence of the Respondents' witness, Stephen Gaunt; he had started locking up his laboratory as he feared that the Claimant had taken material from his fridge and it was clear from his evidence that he disliked the Claimant. The Tribunal explain what they made of that evidence which was not that there was any race element involved at all. As regards the locking of his laboratory, they explain that Dr Gaunt also accepted that the Claimant could have isolated the material in question by PCR and that they considered that far from damning him, by volunteering an innocent explanation, as he did, the issue reflected on him well rather than badly. Then, in respect that they found that he disliked the Claimant they explain that they attributed that not to his race but to the way that the Claimant had treated him in the period November 1994 to May 1996 and on an occasion when there was an altercation between them.
10. Another example is in relation to the evidence of Dr Dyer. The Tribunal note that it was alleged that he was part of a conspiracy, reject it and explain that the reason for their doing so was not just that they considered that Dr Dyer was a truthful and credible witness but that his denial of any conspiracy fitted with the common sense of the situation. There are others but we do not consider that we need to repeat them here. The point is that the Tribunal have not just recorded the evidence, their findings in fact and their decisions on credibility and reliability but they have explained them and have done so in the light of the various challenges being raised by the Claimant.
11. The Tribunal also explain their findings in respect of the Claimant's three witnesses, whose evidence does not appear to have contradicted that of the Respondents' witnesses. They then turned to the Claimant, commenting at paragraph 380, that:

"The unvarnished evidence shows him to be arrogant …"

and go on to explain how various aspects of his evidence led them to draw the conclusions that he was also vain , rude , aggressive, a bully, unprofessional, insulting and generally extremely difficult to work with, to which we have already referred. As regards his rudeness, at paragraph 380, they commented:

"But it was the Claimant's rudeness, as clearly demonstrated from the productions, which left us aghast."

12. At paragraph 396, the Tribunal turn to the question of whether, on the evidence, there was sufficient for an inference of race discrimination to be drawn. Their conclusion is clear. They do not consider that there were any facts which could justify the drawing of an inference of race discrimination. They add:

"In that connection we have considered the whole course of treatment afforded to the Claimant over most of his career at the Babraham Institute and the whole of his career at Roslin. We have also considered whether the unreasonable treatment to which we shall advert when we consider the claim of victimisation infers that there were racial grounds for that treatment having regard to the cases of Zafar, King, Anya and Bahl. We have also scrutinised in detail, the evidence given by all the witnesses who testified before us to determine whether we were entitled to reach the view that where we found witnesses unreliable or incredible, this entitled us to the conclusion that race discrimination could be inferred. We concluded, after that examination, that it could not. It must accordingly follow that the claims of direct discrimination made against the first two Respondents fall to be dismissed."

13. In short, the Tribunal were not satisfied that a prima facie case had been made out and that was, in their view, sufficient to dispose of the claim of direct racial discrimination. They have not worked slavishly through the stages covered by the guidelines in the case of Barton (as subsequently discussed, approved and expanded on in the case of Igen v Wong [2005] EWCA 142; [2005] ICR 931) but as has been since explained in the cases of Laing v Manchester City Council [2006] IRLR 748 and Madarassy v Nomura International PLC [2007] EWCA Civ 33, a Tribunal does not necessarily require to do so.
14. In respect that, as referred to by the Tribunal in that quotation from paragraph 396, they also recognised that the Claimant had been treated unfairly in the various respects in which the first Respondents failed in the procedures involved in the investigation and dismissal process, they considered the question of what was the reason for that treatment and concluded that it was 'wholly motivated by a desire to be rid of the Claimant as an unsatisfactory employee' (para.453), nothing more. That finding was of particular relevance to the victimisation claim (where the Tribunal rightly recognized that the reverse burden of proof provisions of s.54A of the 1976 Act do not apply to claims for victimisation under s.2).
15. The Tribunal then considered whether the Claimant could found on a protected act and concluded that he could. They considered whether he could show less favourable treatment and concluded that he could. They then asked and answered the relevant and important question of why the Claimant was treated in that way and concluded, at paragraph 453:

"….we could not be satisfied that the Claimant has established that his undoubted unreasonable treatment at the hands of the Respondents, in the manner which we have indicated, or, for instance the evidence of Mr Withers in relation to the withholding of the Neilson report, amounted to victimisation within the meaning of Section 2 of the 1976 Act. To the contrary, it was our considered view that the unreasonable treatment meted to the Claimant was wholly motivated by a desire to be rid of the Claimant as an unsatisfactory employee – he had, as the Respondents saw it, wholly failed to carry out the functions of the post for which he had been recruited to Roslin by his failure to collaborate with Professor Wilmut. The Respondents considered that the Claimant's insistence on being trained in the functions carried out by Ian Wilmut and his team was a repetition of the behaviour displayed by the Claimant during his time at Babraham in relation to the issue of micromanipulation equipment. We consider that the Respondents' view of the Claimant in that regard was honestly drawn and clearly vouched by the facts and the result is that we are satisfied that there is a non - victimisation explanation for the Respondents' decision to dismiss the Claimant."

They thus concluded that both the unreasonable treatment surrounding the dismissal and the dismissal itself were not attributable in any way to victimisation within the meaning of s.2 of the 1976 Act.

16. The Tribunal were, of course, bound to take account of the relevant statutory provisions and they have done that; it was not suggested otherwise by Mr Davies in the course of the hearing. Nor did he suggest that they failed to take account of relevant authorities or that they misunderstood or misapplied any of those authorities, other than Anya.

Relevant Law

17. We do not propose to set out the relevant statutory provisions in full. We simply note that the Tribunal referred to and correctly quoted the provisions of sections 1(1)(a), 2, and 54A of the Race Relations Act 1976.
18. The Tribunal also expressly took account of the effect of the "reverse burden of proof" provisions of s.54A noting that if they were satisfied that the Claimant had shown that he suffered less favourable treatment and that the circumstances were such as to properly permit the drawing of an inference that the less favourable treatment was on racial grounds then but only then, the burden of proof would shift to the Respondents. At paragraph 328, they commented:

"....whether or not the new burden of proof rules apply the key issue remains the same, namely, has the Claimant brought sufficient evidence to justify the Tribunal in drawing an inference of race discrimination. If not then the Claimant will have failed to discharge the burden of proof set out in step 1 of the Barton guidelines."

It was not suggested that the Tribunal erred in law in so approaching the case, nor, in our view, could it have been. We would only add that since the Tribunal issued its judgment, the further discussion in the Court of Appeal in the case of Madarassy, a sex discrimination case, approving the analysis discussed in Laing would seem to support the view that the Tribunal's approach to determining the question of whether race discrimination had occurred in this case, was correct. We would refer, in particular to Mummery LJ at paragraphs 8, 9 and 10:

"8. Some submissions in these appeals prompt me to alert practitioners to what Igen v Wong did not decide.

9. Firstly, it did not decide that judicial guidance is a substitute for section 63A(2) (or section 57ZA(2)). On the contrary, the Court of Appeal went out of its way to say that its guidance was not a substitute for statute: see paragraph 16. Courts do not supplant statutes. Judicial guidance is only guidance.

10. Secondly, Igen v Wong did not decide that a Tribunal commits an error of law by omitting to repeat the judicial guidance in its decision or by failing to work through the guidance paragraph by paragraph. The Court of Appeal expressly warned against this possible misuse of the guidance: see paragraph 16. Omitting to refer to guidance or to apply it may increase the risk of errors of law in a decision but such an omission is not itself an error of law on which to found a successful appeal."

and at paragraphs 70-72 , which follows a discussion of the two stages that are inbuilt into the provisions of s.63A :

"70. Although no doubt logical, there is an air of unreality about all of this. From a practical point of view it should be noted that, although section 63A(2) involves a two stage analysis of the evidence, the Tribunal does not in practice hear the evidence in two stages. The employment Tribunal will have heard all the evidence in the case before it embarks on the two stage analysis in order to decide, first, whether the burden of proof has moved to the Respondent and, if so, secondly, whether the Respondent has discharged the burden of proof.

71. Section 63A(2) does not expressly or impliedly prevent the Tribunal at the first stage from hearing, accepting or drawing inferences from evidence adduced by the Respondent disputing and rebutting the complainant's evidence of discrimination. The Respondent may adduce evidence at the first stage to show that the acts which are alleged to be discriminatory never happened; or that, if they did, they were not less favourable treatment of the complainant; or that the comparators chosen by the complainant or the situations with which comparisons are made are not truly like the complainant or the situation of the complainant; or that, even if there has been less favourable treatment of the complainant, it was not on the ground of her sex or pregnancy.

72. Such evidence from the Respondent could, if accepted by the Tribunal, be relevant as showing that, contrary to the complainant's allegations of discrimination, there is nothing in the evidence from which the Tribunal could properly infer a prima facie case of discrimination on the proscribed ground. As Elias J observed in Laing (at paragraph 64), it would be absurd if the burden of proof moved to the Respondent to provide an adequate explanation for treatment which on the Tribunal's assessment of the evidence, had not taken place at all."

The Claimant's Notice of Appeal

19. The notice of appeal runs to 113 paragraphs and is 41 pages in length. Although it sets out, in paragraph 6, really by way of mantra, a series of propositions that the Tribunal acted perversely, that they had no evidence on which to base certain key findings of fact, that it took account of an improper factor and failed to take account of a proper factor in the exercise of its discretion as to whether or not there was racial discrimination or victimisation, that they failed to properly analyse the evidence and failed to provide proper reasons, it is difficult to discern from it discrete or cogent allegations of error of law under reference to the specific facts and circumstances of this case and this Tribunal's decision.
20. As is usual, this Tribunal ordered that the Claimant provide a short, succinct skeleton argument for the purposes of the preliminary hearing. The argument lodged can hardly be described as short or succinct since it contains 41 paragraphs and runs to 19 pages. It falls far short of what such a document should achieve namely that it should be a short statement of argument from which it is possible readily to ascertain what precisely is/are the error(s) of law alleged to have occurred or, in a perversity case, exactly how and why it is that the party considers that it is in a position to seek to persuade that that high test is met. Verbosity in such a document is not helpful whereas brevity is. Brief this document is not.
21. It became apparent in the course of Mr Davies' submissions that, in essence, he sought to advance a ground of appeal that the Tribunal had given wholly inadequate reasoning for its conclusions on the race discrimination and victimisation claims. Perversity was said to be "a part" of that ground. Then, whilst it was not clear whether he was advancing these as separate grounds, he submitted that the Tribunal had erred in law in holding that there was no evidence from which an inference of race discrimination could be inferred and:

"had erred in holding that although there was evidence from which an inference of race victimisation could be inferred, there was no such victimisation."

22. It became apparent that that part of the grounds which we have quoted was the main plank of all his submissions and was meant to apply not only to the Tribunal's failure to find that there had been victimisation but also to their finding that there had been no direct race discrimination. The argument which Mr Davies sought to advance was that if it was correct to draw the inference of discrimination for the purposes of the victimisation claim then the Tribunal also required to do so for the purposes of the direct discrimination claim and it could thus be shown that they had fallen into error.
23. We were puzzled by the assertion that the Tribunal had found that there was evidence from which an inference of victimisation could be inferred as we could not see that such a finding had been made anywhere in the 117 page judgment issued by the Tribunal. We asked Mr Davies to explain the basis for his assertion. He accepted that there was no express finding to that effect. He also accepted that there was no question of the reverse burden of proof applying in the case of the victimisation claim. Notwithstanding that, he submitted that it could be inferred from the passage in paragraph 453 which we have quoted above, that such an inference had in fact been drawn by the Tribunal. It was, he said, only logical to conclude that they had done so. We find ourselves quite unable to draw any such inference. It is plain from the Tribunal's careful reasoning through the issues that they required to address for the purposes of the victimisation claim that at no time did they infer that victimisation had occurred. Certainly they found that there had been less favourable treatment and that the requirement for a relevant protected act was satisfied but that does not mean that they had inferred that victimisation had taken place. As the Tribunal rightly recognizes at paragraph 412:

"The last element in a victimisation claim requires a Claimant to show that the less favourable treatment was 'by reason that' he or she did a protected act etc. It is clear that there has to be a causal link between that act and the less favourable treatment although the protected act need not be the sole cause of the employers' actions – rather, victimisation will be made out if the protection act had a "significant influence on the outcome" (see Nagarajan)."

24. The problem for the Claimant was that the Tribunal were not satisfied that the Claimant had shown the requisite causal link and they reached that conclusion without at any stage having drawn any inference that victimisation had occurred, which is not surprising. It would be odd if they had done so.
25. In support of his submission that the Tribunal had failed to provide adequate reasons, Mr Davies referred to the case of Deman v Association of University Teachers [2003] EWCA 329 at paragraph 43 where Potter LJ said:

"It is the job of the Tribunal of first instance not simply to set out the relevant evidential issues as this industrial Tribunal conscientiously and lucidly did but to follow them through to a reasoned conclusion except to the extent they become otiose; and if they do become otiose, the Tribunal needs to say why."

Otherwise, Mr Davies asserted that the Tribunal had generally failed to provide adequate reasons and an adequate analysis: the Claimant could not tell why he had lost his discrimination and victimisation case. In particular, they required to explain why they had rejected these claims whereas they had just leapt to their decision. There was, he said, a vacuum where there should have been analysis. He also criticised the Tribunal's decision as one which had been made solely on the basis of credibility, contrary to Anya.

26. Mr Davies spent much time referring to various aspects of the evidence, including some items of documentary evidence which he had brought to the hearing in a supplementary bundle, for the purpose, it seemed, of seeking to show how the Tribunal could have drawn different conclusions of fact. For example, at one point he referred to notes of a meeting at pages 87–88 of that bundle and said 'that's sufficient, I think, for an inference of race victimisation'. He also said that 'we say there was masses of evidence for the inference to be drawn' under reference, in particular, to a passage in an interview note at p.90 of that bundle, a passage which does not appear to us to give rise to an inference of race discrimination at all. At other times he referred generally to the evidence of witnesses and features of the history of the Claimant's employment and how it should have led the Tribunal to conclude differently. Characteristic of his submissions was that he posed the rhetorical question "why did Professor Wilmut want the Claimant sacked?" and answered it by saying: "we say that it was because of racism and victimisation". He recognized that the Tribunal had concluded differently; they had said it was "because he's a horrible man" but asserted that they could not do that. There had to be an analysis, a theme to which Mr Davies returned on a number of occasions.

Decision

27. We have considered the Claimant's notice of appeal, the skeleton argument and the documents to which Mr Davies referred in the course of his oral submissions which lasted for almost an hour and a half. We deliberated over them after hearing. We are unpersuaded by Mr Davies' arguments. It is, we consider, quite wrong to regard the Tribunal's judgment as one which gives inadequate reasons. On the contrary, if it is read in full, it is plain that they have carefully and analytically worked their way through a substantial body of evidence, referred to and taken account of the relevant law and reached a carefully considered decision on the facts.
28. We are irresistibly brought back to the same elementary point. The Tribunal decided this case on the facts. They considered the evidence. They decided what facts were established on the evidence. They were not prepared, on the evidence, to draw the inferences that the Claimant wanted them to draw for the purposes of his case of direct discrimination and they were not bound to do so. They did not accept that it had been established that the less favourable treatment which they found that the Claimant had suffered was causally linked to him having carried out a protected act and, again, they were not bound to do so. Further, contrary to what was suggested, we consider that the Tribunal have carefully explained how and why, on the evidence, they reached these decisions. We would refer to what we have already said regarding the Tribunal's approach in this case under the part of this judgment headed "The Tribunal's Decision".
29. We would add that we do not consider that, on a proper reading of the Tribunal's judgment, they made a decision which was, as Mr Davies put it, "wholly on credibility". This was an argument which Mr Davies said was subsumed within one of his existing grounds of appeal but we are not satisfied that it was. Rather, it appeared to us to be a new point. We will, however, indicate our views in respect of it. The Tribunal did make findings on credibility and reliability but that is not surprising since that is a task which requires to be addressed by any fact finding body and there was a particular need for them to do so in this case given that the credibility of many of the Respondents' witnesses had been challenged and the Claimant's position in evidence was that he had received discriminatory treatment which was conscious, in many respects concerted, blatant and mostly committed by persons who were liars and racists. Against that background, the credibility and reliability of the Respondents' witnesses when they denied these allegations was bound to play an important role. The Tribunal had to scrutinise their credibility and reliability and it did so. They did not, however, contrary to what was suggested, decide the case as they did because they found the vast bulk of the Respondents' evidence to be credible and reliable. They were well aware, as is evident from their discussion of the relevant authorities, including Anya that that was something that they needed to caution against. They found as they did because what they took from the facts established by that evidence was that , as summarised at paragraph 385, the Claimant was an extremely difficult individual to work for, with and manage and had the various characteristics to which we have referred and that led the Respondents to decide that he was 'truly an unsatisfactory employee'(paragraph 461), that they wanted to be rid of him because of those factors and that they treated him badly in the ways described because of them, not because of his race. They were not prepared to conclude or infer that race was the reason or the motivation and we do not see that, on the facts found, they were bound to do so.
30. In short, we cannot see that the case that the Claimant seeks to advance on appeal is, in reality, a case to the effect that the Tribunal erred in law at all. Rather, we were satisfied from listening to Mr Davies that the objective was to seek to rerun the case and try to achieve a rehearing of argument on the facts. That is not the function of this Tribunal. Its jurisdiction is limited by the terms of s.37 of the Employment Tribunals Act 1996 to appeals on questions of law. On the basis of the arguments presented to us, no reasonable grounds to the effect that the Tribunal erred in law are advanced. In these circumstances we will pronounce an order dismissing the appeal.