HIS HONOUR JUDGE SEROTA QC
Introduction
1.
This is an appeal by the Claimant together with a cross-appeal by the
Respondent from a decision of the Employment Tribunal at London Central,
presided over by Employment Judge Henderson who sat with lay
members. The Judgment is dated 22 September 2010, and the Reasons
were sent to the parties on 24 September 2010. The hearing before
the Employment Tribunal lasted for three days.
2.
The Employment Tribunal (a) dismissed the Claimant’s claim of unfair
dismissal (b) dismissed two claims for victimisation but upheld one such
claim. The Claimant was awarded £2,000 for injury to her feelings together
with interest, giving a total award of £2,147.
3.
Both the appeal and cross-appeal were referred to a full hearing by
HHJ Birtles on 8 December 2010.
4.
The Claimant appeals against the dismissal of her claim for unfair
dismissal and in respect of the claims of victimisation that were dismissed.
The Respondent appeals against the finding of victimisation made against it.
5.
It is convenient to generally deal with the Claimant’s appeal before the
Respondent’s appeal.
Factual background
6.
We largely take this from the decision of the Employment Tribunal.
7.
The Claimant is a UK citizen of Black, Nigerian origin. At the time of
the hearing before the Employment Tribunal, she had had 14 years’ experience in
the banking industry, of which 12 years had been spent with Barclays Bank. She
joined the Respondent on 24 September 2007. After her induction she
was appointed as Joint Branch Manager of the Respondent’s branch at Piccadilly Circus, where she dealt mainly with sales. She was later transferred to the
Respondent’s branch at Cavendish Square, where for six months she was the sole
Branch Manager. It was at Cavendish Square that she began to deal more
regularly with the Large Payment Proforma (LPP) process. The LPP process
relates to cases where a customer wishes to withdraw £5,000 or more using chip
and PIN, cash a cheque for £1,000 or more or withdraw £1,000 in cash.
8.
Occasionally, a customer wishing to withdraw cash did not have a card
with him so that his identity could not be verified by a PIN. In such cases a
form was required to be completed by the cashier and authorised by a second
checker, usually the Deputy Branch Manager or the Branch Manager. The checker
was responsible for checking that the necessary due diligence was carried out.
9.
If answers to certain questions by the cashier, as to checks on the
customer’s identity, were negative, or if there had been a change of address or
telephone number within the last 30 days, or if the cashier had any doubts
about the identity of the customer, the Branch Manager was required, if
satisfied of the customer’s identity, to record on a Proforma LPP form, the
reasons for authorising payment, to sign and date the form at section 5, in
order to confirm that he or she was satisfied the payment was genuine and that
the LPP Proforma had been completed in full. This system was designed for the
protection of the Respondent, the Branch Manager and the cashier.
10.
On 4 August 2008, the Claimant was appointed Branch Manager
for the Respondent’s Belgravia branch. This might be thought of as a
prestigious and highly responsible appointment. It is common knowledge this
was a difficult time for the Respondent as for banks in general, because of the
economic climate, and we would think that Bank Managers were well aware of the
need to exercise particular care to avoid unnecessary risks in the management
of the bank’s business, especially in relation to loans and large cash
withdrawals.
11.
The Claimant received performance-related bonuses and pay increases up
to, and including, the third quarter of 2008.
12.
All Branch Managers receive ongoing training but are also fully trained
prior to commencing their role. The Claimant accepted that she believed she
had received sufficient training to enable her to carry out her role as Branch
Manager.
13.
On 12 February 2009, Ms Marron, a Senior Bank Manager
(SBM), became the Claimant’s line manager. From the outset, there were issues
between Ms Marron and the Claimant. An SBM is responsible for a cluster
of branches, usually about six. The function of SBMs is to supervise Branch
Managers, and ensure that they meet their responsibilities in relation to
employees, services given to customers and compliance with the Respondent’s
policies and procedures. SBMs are expected to regularly visit branches to
ensure that their standards are being met, to monitor those standards and the
Branch Manager’s performance against a target. They are expected to carry out
weekly and quarterly reviews with Branch Managers for whom they are responsible
and, if necessary, monthly reviews also. Weekly reviews were often undertaken
by telephone, the other reviews would be undertaken by face-to-face meetings.
14.
Branch Managers are expected to manage and support the branch staff to
deliver the Respondent group’s objectives for service, to provide “excellent”
operational standards and to generate income.
15.
Process and procedure is monitored weekly by “Achieving Target
Excellence Tests” (ACETs) to ensure that the risk to the group is being
minimised. As the LPP process involved greater risks than other processes,
there is a requirement that it should be tested regularly.
16.
When ACETs identify failings, an action plan is raised and the Branch
Manager or deputy is responsible for ensuring that failures are remedied within
28 days. Branch Managers are aware of the ACET process and spot checks are
carried out by SBMs and Independent Assurance Managers (IAMs), as well as by
the Regional Director. Their reports are, on occasion, sent to the group head
office for checking.
Authorisation of loans
17.
The Respondent introduced a new system in 2009 for authorisation of
loans by means of a second checker test. The purpose of this test was to
ensure that Branch Managers were able to identify risks before authorising a
loan and to flag up to them the relevant checks that had to be carried out.
Branch staff drew up the customer loan applications but authorisation of the
loan could only be given by someone who had successfully completed the second
checker test. The Claimant had not, at the material time, completed this test.
18.
As we have already noted, early on in the relationship between the
Claimant and Ms Marron, there were issues between them. These issues included
questions of staff transfers between the cluster of branches for which
Ms Marron was responsible, but also the general running of the Belgravia branch. The Claimant felt she was not given sufficient input into discussions
about moving staff to and from her branch. The Respondent’s evidence was that
movements often had to be made at short notice because of differing staff
requirements and a reduction in staff numbers. Also the Belgravia branch was
one of the group’s quieter branches.
19.
Evidence was given to the Employment Tribunal by Ms Owen, the
Regional Director, that Ms Marron had complained to her that the Claimant
would not listen to her and was behaving in an aggressive manner towards her.
It was apparent to Ms Owen that Ms Marron had difficulties in
communicating with the Claimant and felt intimidated by her. The Claimant’s
evidence was that Ms Marron was hostile and intimidating towards her, and
made racist remarks on 3 April 2009, during a one-to-one meeting to
the effect that “people like you cannot change” and “some of your faults stick
out themselves; it is typical of people from your background”.
20.
The Claimant’s evidence was that she made contemporaneous notes of these
words and took the matter up with Ms Marron who had evaded the issue. The
Claimant believed that these words were racist. As neither Ms Marron, nor
Mr Hinton, the Regional Manager, were called to give evidence before the
Employment Tribunal, the Employment Tribunal felt constrained to accept the
Claimant’s evidence that she did perceive those comments to be linked to her
race.
21.
On 21 April 2009, Ms Marron told the Claimant she wished
to put her on an action contract, that is a procedure applied to staff who
underperformed. The Claimant objected and said she would not sign the relevant
documentation. Ms Marron said that she would speak to Human Resources and
that the Claimant might face disciplinary action for refusing to agree to an
action contract. At this time, the Claimant felt she could no longer put up
with what she considered to be Ms Marron’s bullying and intimidating
behaviour. That day, she telephoned the Respondent’s Human Resources
confidential employee helpline and raised a complaint against Ms Marron.
She said that Ms Marron’s behaviour was bullying, intimidating and
amounted to harassment. She referred to racist comments and insults. The
Claimant was advised to take out a grievance and, on 23 April 2009,
she sent an email to the Regional Managing Director, Mr Tony Brown.
The email complained in strong terms about Ms Marron’s general behaviour,
bullying and “slave-driver” tactics. The only reference to discriminatory
behaviour in the email was to “a tint of racism”.
22.
The Claimant’s explanation for not setting out her complaint of racism
in greater detail, was that she did not wish to set out the full extent of her
grievance in an email, but to expand on it at a meeting. She had also gone
over the top of the Regional Director, Ms Owen, who was the obvious person
with whom to raise the grievance. It was not in dispute that the email and the
grievance constituted what might be described as protected acts within the
meaning of s.2(1) of the Race Relations Act 1976.
23.
On 29 April 2009, the Claimant met the Regional Manager,
Mr Hinton. He prepared minutes of the meeting. Mr Hinton recorded
that the Claimant did not give any examples of why she felt Ms Marron’s
aggression was linked to racism and that she was unable to justify the link.
The Claimant, on the other hand, maintained that the minutes were incorrect and
that she had not seen them before the Tribunal hearing, and that she had quoted
chapter and verse at the meeting. As Mr Hinton was not called to give
evidence, again the Employment Tribunal accepted the Claimant’s evidence.
The Bronze Alert incident
24.
On 5 May 2009, Ms Marron called an emergency audio
telephone conference at 8.35pm to show how Branch Managers should deal with
issues in the event of an emergency. All Branch Managers were asked to rejoin
the audio call between 9.00pm and 9.10pm. The Claimant was unable to rejoin
the audio call because the battery on her telephone had ran out and she had
left her charger at work, so she was unable to telephone Ms Marron to
inform her that she could not join the conference, nor that she was unable to
telephone to explain why. On 6 May 2009, there was a further audio
call; the Claimant apologised but Ms Marron said she was disappointed at
the Claimant’s behaviour and believed that the Claimant had deliberately chosen
not to join the second call. The Claimant felt this was unfair. However, it
was common ground that the Claimant did not join the conference, nor telephone
Ms Marron to explain why.
25.
On 18 May 2009, the Claimant went on holiday, returning on
1 June 2009. During her absence on 18 May 2009, the
group’s investigation team reported on a fraud perpetrated at Belgravia on
4 March 2009 and a further fraud committed at the Cavendish Square
branch on 5 March 2009. The fraud involved a fraudster who
dishonestly changed the address of one of the bank’s customers, Mr Marr,
and went on to order a new debit card and PIN, which were used to make
substantial ATM and cash withdrawals, amounting to some £38,200.
26.
The LPP form revealed a change of address within the last 30 days. The
Claimant had ticked the box on the LPP form to the effect she had examined the
passport of a person withdrawing the money, who had explained he needed the
cash to pay builders, notwithstanding he had already withdrawn £4,500 that day
from Cavendish Square. The Deputy Manager of the branch at Cavendish Square
had carried out the relevant due diligence checks and marked the relevant
boxes. As a result, he had correctly completed the LPP, notwithstanding that a
payment had been made to a fraudster. As he had complied with the bank’s
policies and procedures, no further disciplinary action was taken against the
Deputy Manager.
27.
The Employment Tribunal examined the Proforma in question and found
there was some ambiguity in the wording, but nonetheless the Claimant was at
fault in relation to the transaction. The Proforma had been completed by the
cashier and indicated there had been a change of address in the last 30 days.
Despite some ambiguity, the Employment Tribunal, on the basis of the evidence
given by Ms Morrison and Ms Owen, and on the basis that the tenor of
the guidance notes concluded that it was general practice in such cases to do
checks set out at paragraphs 2:5 to 2:10 of the form. The Claimant’s evidence
that it was not necessary to carry out those checks in such circumstances, was
not accepted. The Employment Tribunal conclusion is set out at paragraph 32 of
the decision.
28.
The Employment Tribunal went on to find, based on the evidence, that
having regard to the Claimant’s banking experience and training, she should have
been alerted as a result of the searches she did carry out with her cashier on
4 March, that revealed several large withdrawals had been made. These
withdrawals had all been made at a level below the requirement for an LPP to be
completed. The Claimant suggested that the fact that the fraudster had
withdrawn £4,500 already that day from the Piccadilly branch, suggested she was
entitled not to be concerned.
“34. However, the Tribunal find that in fact this should have
rung warning bells with the Claimant as her searches showed that £4,500 had
also been withdrawn on the previous day from the Cavendish Square branch. The
Tribunal find that this should have made the Claimant more cautious in carrying
out her checks, not less so.”
29.
As a result of the report that she had received, Ms Marron
determined to hold an investigatory meeting. The Claimant at the Employment
Tribunal took issue as to whether it was appropriate for Ms Marron to have
done so because she had been the subject of the outstanding grievance. The
matter was discussed between Ms Marron and Ms Owen. Ms Marron
felt it was her responsibility and the Employment Tribunal found the nature of
the investigation was essentially a factual one based on the information
obtained from the investigation reports and there was a minimum amount of
subjective assessment to be made by her. Further, she would not make the
decision as to whether or not this went to a disciplinary hearing and would not
conduct the disciplinary hearing itself.
30.
The Claimant was not permitted to speak to her cashier
(Ms Susannah Amarh) about the incident on 4 March and complained
of intimidating behaviour on the part of Ms Marron. The Employment
Tribunal found, however, it was not unreasonable for Ms Marron to ask the
Claimant not to speak to the cashier until she, Ms Marron, had spoken to
her. On 5 June, the Claimant gave evidence that she had overheard a
conversation between Ms Marron, who was in another room, speaking to
Ms Owen saying that she had found more documents to “nail Victoria”. Ms Owen denied any such conversation had taken place with her. As
Ms Marron was not called to give evidence, the Employment Tribunal
accepted the Claimant’s evidence that there was such a conversation, but not
necessarily with Ms Owen. As there were no documents in relation to the Bronze
Alert incident, Ms Marron must have been referring to some other matter.
31.
Ms Marron held a further investigation meeting on
8 June and discovered that although the Claimant had not completed
the second checker test, she had authorised two customer loans which she was
not authorised to do. The Employment Tribunal found it was not unreasonable
for Ms Marron to check this. Ms Marron also raised the Bronze Alert
incident, that the Claimant maintained, before the Employment Tribunal, was
raised solely because she had raised a grievance alleging discrimination on the
grounds of race.
32.
The Employment Tribunal noted that at the various investigatory
meetings, the Claimant had acknowledged that she had been “a bit lapse” with
regard to procedures and had not completed the due diligence section of the
Proforma.
33.
It was the Claimant’s case that Ms Marron’s decision to investigate
the LPP failure and the unauthorised approval of the loans as well as the
Bronze Alert was motivated by the fact she had raised the grievance. This was
especially so because no disciplinary action had been taken against the
cashiers at either branch, or against the branch manager at Cavendish Square.
34.
Mr Hinton, the Regional Manager, made efforts to arrange a
three-way meeting involving Ms Marron, the Claimant and himself, in
relation to the Claimant’s grievance, but for various reasons he was unable to
do so before 9 June 2009, by which time other matters had intervened
and the Claimant had been suspended, pending an investigation into her
conduct. The Claimant asserted that the three-way meeting was inconclusive
because Ms Marron would not discuss various matters, as the Claimant had
been suspended on various disciplinary issues. There were minutes of that
meeting which did not appear to support the Claimant’s recollection, however in
the absence of evidence from Ms Marron and Mr Hinton, the Employment
Tribunal accepted the Claimant’s evidence. On 14 July, Ms Morrison, a
Senior Branch Manager, invited the Claimant to a disciplinary meeting. The
disciplinary hearing took place on 28 July 2009 and was conducted by
Ms Morrison, who was experienced in conducting disciplinary and appeal
meetings. The three issues raised were the failure in relation to the LPP, the
unauthorised approval of loans and the Claimant’s failure to participate in the
Bronze Alert. The Employment Tribunal noted that during the course of the
disciplinary meeting, the Claimant acknowledged that she had received adequate
training and that she had previous banking experience with Barclays. She also
admitted that she had not followed the LPP process, that this was an oversight
and was wrong. She also acknowledged that she knew she was not authorised to
sign the loan approvals.
35.
She made similar admissions later at an appeal meeting and appeared to
suggest that as her actions had not led to any loss of money on the part of the
bank, that was justification for her actions.
36.
The Respondent’s disciplinary procedure defined gross misconduct as
follows:
“Gross misconduct is a serious breach of the Group’s rules and
procedures or of the recognised and accepted standards of conduct, resulting in
a breakdown of the relationship of trust and confidence between the Group and
the employee concerned.”
37.
At the disciplinary hearing, adverse findings were made against the
Claimant, but only in relation to the LPP and unauthorised loans. These were
the grounds of dismissal. The allegations concerning the Bronze Alert were not
taken into account in relation to the dismissal. As we have already noted,
there was an appeal against the decision which was conducted by Ms Owen.
The appeal was dismissed. The Employment Tribunal note that in the Claimant’s
appeal letter, which was full and thorough and covered most of the issues
raised in the Employment Tribunal, there was no reference to discrimination on
the grounds of race nor to victimisation on racial grounds. When Ms Owen
wrote to the Claimant on 30 September to set out her decision
dismissing the appeal, her letter reiterated that the allegation concerning the
Bronze Alert had played no part in the decision to dismiss the Claimant.
The decision of the Employment Tribunal
38.
Before the Employment Tribunal, as we have already noted, neither
Ms Marron nor Mr Hinton were called to give evidence
39.
The Employment Tribunal began by directing itself as to the issues and
the applicable law. It is important to note that at paragraph 4.11 the acts of
victimisation were put this way:
“4.11 Did the Respondent discriminate against the Claimant by
victimising her, namely
(a) subjecting her to disciplinary
action/procedure; and/or
(b) expanding the investigation
regarding the fraudulent withdrawal of £3,800 from the Claimant’s branch into
other areas of work undertaken by the Claimant where allegedly investigation
into other branch managers whose branches were also subject to a connected
fraudulent customer transaction on 4 February 2009 were no so
expanded; and/or
(c) expanding the investigation to
include allegations against the Claimant that she had failed to follow
reasonable instructions with regard to the “Bronze Alert” incident.”
40.
It will be noted that the Bronze Alert was set out as an incident of
victimisation. However, in the list of issues prepared for the hearing (pages
88 to 92) which we assume was agreed by the parties or approved by the
Employment Tribunal, this allegation does not appear. Further, there is no
reference to the Bronze Alert in the ET1 claim form.
41.
The Employment Tribunal at page 1 of its decision under the rubric “The
Issues and Applicable Law” went on to identify the issues that it had to
determine. However, there is in fact no specific reference to the law, nor to
the burden of proof. It is clear, however, that the Employment Tribunal, as
can be seen from the way it set out the issues to be determined, had well in
mind the principles set out in British Home Stores Ltd v Burchell [1978] IRLR 379; see paragraphs 44 and 45 below. We
have mentioned that there is no self-direction as to the burden of proof or to
any shifting burden of proof. The Respondent suggests that such failure
amounts to a breach of the Employment Tribunal Rules of Procedure
30(6)(d) that requires written reasons for a Judgment to include “a concise
statement of the applicable law”. The Employment Tribunal set out the facts as
we have outlined them above. At paragraph 41, the Employment Tribunal
explained the explanations given by the Respondent for not having taken
disciplinary action against the two cashiers and the assistant manager of the Cavendish Square branch, Mr John.
“41. Ms Owen gave evidence that she found that disciplinary
action (short of dismissal) should possibly have been taken against the two
cashiers but that she did not consider it appropriate for disciplinary action
to be taken against Mr John as he himself did not breach the LPP
procedure. The Tribunal note as well that the cashiers were not in the same
circumstances as the Claimant as their position was less senior and the checks
they had to carry out were different.”
42.
We are satisfied that the Employment Tribunal accepted Ms Owen’s
evidence. The Employment Tribunal then went on to consider the question of the
Bronze Alert.
“42. However, as regards extending the investigation with regard
to the Code Bronze Alert, there appears to be less justification for
Ms Marron to do this. Again she may well have had valid reasons for doing
so, which were wholly unrelated to the fact that the Claimant had raised a
grievance. However, the Tribunal heard no evidence with regard to this thought
process or motivation. The Tribunal also note that both Ms Morrison and
Ms Owen disregarded the allegations with regard to the Bronze Alert
incident when considering the Claimant’s dismissal and appeal. This suggested
to the Tribunal that this particular allegation was a relatively trivial one
and should not have been included in the various disciplinary offences. Again
the Tribunal make this finding on the basis of no further evidence or insight
provided by the Respondent with regards to Ms Marron’s decision in this
regard. Further, the statement of Ms Marron in the telephone conversation
on 5 June, overheard by the Claimant, suggests some element of vindictive
intent with regard to the Claimant.”
43.
It was submitted by the Respondent, and we are minded to agree, that the
Employment Tribunal in paragraph 42 were in effect concluding that as a prima
facie case had not been rebutted on victimisation, it was obliged to find
that allegation had been proven. At paragraph 45 the Employment Tribunal was
satisfied that the Claimant’s conduct in relation to both the authorisation of
the loan and the LPP amounted to gross misconduct. At paragraph 46, the
Employment Tribunal went on to say:
“46. The Tribunal also note that bearing in mind the Claimant’s
previous banking experience and her seniority she would be expected to know
that failure to properly complete an LPP form and in particular to sign loans
without appropriate authorisation must be regarded as a serious breach of the
rules and procedures/recognised and accepted standards of conduct and could
result in her losing the trust of her employer.”
44.
In paragraph 56, the Employment Tribunal, applying the Burchell
principles, concluded that the Claimant was dismissed for a potentially fair
reason, namely her conduct, and that the Respondent was entitled to treat this
conduct as gross misconduct, and that at the time it took the decision to
dismiss, it genuinely believed that the Claimant had committed the acts which
constituted gross misconduct, namely the failure to complete the LPP process
and authorising customer loans without having taken the second checker test.
The Respondent had reasonable grounds to believe the Claimant had committed
those acts of gross misconduct.
45.
While recognising that the fact the investigation was carried out by
Ms Marron was not best practice, the Tribunal concluded that the
Respondent’s belief that the Claimant had committed acts of gross misconduct
was reached after a reasonable investigation in all of the circumstances. The
Claimant had conceded her failures in relation to the two main issues and
Ms Marron’s conduct of the investigation did not make any difference to
the outcome. The Respondent acted reasonably in treating the Claimant’s gross
misconduct as a sufficient reason to dismiss her.
“56.7 In the light of the definition of gross misconduct of the
disciplinary procedures and in the light of the admissions made by the Claimant
with regard to her conduct, the Tribunal find that the Respondent’s decision to
dismiss the Claimant did fall within the band of reasonable responses. The
Tribunal is also mindful that in reaching this decision it must not substitute
its own decision for that of the Respondent. As a result of these conclusions,
the Tribunal decide that the Claimant was fairly dismissed.”
46.
In relation to victimisation, the Employment Tribunal was satisfied the
Claimant had done a protected act, but it did not victimise the Claimant on the
grounds of the protected act by subjecting her to disciplinary action.
“This was because the decision to take the disciplinary action
and the decision on the dismissal was taken by Ms Morrison and not by
Ms Marron.”
47.
The Claimant was not treated less favourably than other employees in
similar circumstances. The cashiers were in a different position to the
Claimant and could not be used as comparators. The Assistant Manager,
Mr John, while in the similar position to the Claimant, had not actually
breached any of the bank’s procedures, so the Claimant could not claim any less
favourable treatment in this regard. However, in paragraph 57.4, the
Employment Tribunal dealt with the Bronze Alert:
“57.4 However, the Tribunal do find that on a balance of
probabilities Ms Marron extended the scope of the allegations to the
Bronze Alert. This was unreasonable and in the absence of adequate explanation
from Ms Marron as to why this was done, the Tribunal conclude that this
was on the grounds of the protected act. The Tribunal therefore find that the
Claimant has been victimised on this basis on grounds of her allegations of
contravention of the RRA. The Respondent is vicariously liable for
Ms Marron’s conduct as this was carried out in the course of her
employment.”
48.
The Employment Tribunal went on to award the Claimant £2,000 together
with interest as, we already noted.
The Notice of Appeal and submissions in support
Unfair dismissal
49.
The Claimant challenges the dismissal of the claim for unfair dismissal
on the basis that the Employment Tribunal (a) failed to take account of
relevant matters; Mr Green, who appeared on behalf of the Claimant, relied
upon Carter v Credit Change [1979] IRLR 361 and Bastick v James Lane (Turf Accountants)
[1979] ICR 778. We do not consider that these authorities are of any assistance
to us in this appeal.
50.
Mr Green then submitted that the Employment Tribunal had failed to
take account of cases that stressed the importance of warnings to employees
that particular conduct might be regarded as gross misconduct such as Retarded Children’s Aid
Society v Day [1978] IRLR 128, Nudds v Eastwood
[1978] ICR 171 and Trusthouse Forte v Adonis
[1984] IRLR 382. It was clear, so it was submitted, that no specific warnings
have been given to the Claimant that failure to follow the proper procedures
relating to the LPP, and in authorising a loan, if not an approved second
checker, would be considered to be gross misconduct. In those circumstances,
it was submitted that the Employment Tribunal was not entitled to regard the
Claimant’s conduct as amounting to gross misconduct and the Respondent did not
act reasonably in treating the conduct as gross misconduct and as a sufficient
reason to dismiss. Further, it was not reasonable to dismiss the Claimant
because she had not immediately been suspended. Reliance was placed upon Trusthouse Forte v Adonis.
The Claimant’s misconduct, it was said, was not in the same category of gravity
as other listed acts of gross misconduct. No warning had been given of the
consequences.
51.
It was then said that the Employment Tribunal had failed to take account
of or refer to certain relevant factual evidence, including the fact that (a)
the Claimant had received no specific training for completing the LPP
documentation (b) the fact that the Claimant may have had adequate training and
knew that she failed to follow approved procedures in relation to the LPP and
approved loans without having passed the second checker test showed not that
the dismissal was reasonable, but that the Claimant was never warned as to the
gravity of what she saw as minor failures in procedure. The failure to
complete LPP documentation properly was a regular occurrence; (we note at this
stage that we do not know what evidence is relied upon to support this
assertion, which is not referred to in the decision of the Employment
Tribunal). It had never been made clear to the Claimant how seriously these
breaches would be regarded by the Respondent. There was no consistent or
clarity of approach to the LPP procedure, and it was suggested there was a
discretion as to how the documentation was to be completed, and that breach of
procedures were seen differently by different managers; again there is no
reference to this point in the decision of the Employment Tribunal. We have
seen no evidence to support this.
52.
He also said that there was evidence (again, we have not seen this) that
the previous occasions when LPP forms had been incorrectly completed had not
led to any disciplinary action. There was no “zero tolerance” memorandum in
relation to the LPP as there was for fraud or wrongful authorisation of loans.
It is said that there was also evidence of mitigation in that the Claimant
stated she was under pressure and she had had an unblemished record.
53.
In the circumstances and having regard to those matters, Mr Green
submitted the decision of the Employment Tribunal was a decision that no
reasonable Employment Tribunal could have reached and this was a clear case.
As there was nothing to suggest that these matters had been properly regarded,
there was a breach of rule 30(6); in this regard he referred to Greenwood v NWF Retail Ltd UKEAT/0409/09/JOJ and Bahl v Law Society
[2004] IRLR 799.
Victimisation claims
54.
The Claimant submitted that the principal item of detriment relied upon
was the decision taken by Ms Marron to progress to a formal disciplinary
hearing against the Claimant. It was unclear if the Employment Tribunal at
paragraph 57.2 referred to a decision to take disciplinary action (as set out
at paragraph 2.5.1) on the list of agreed issues or to a decision to impose
some sanction. If the former, the Employment Tribunal had failed to determine
the principal issue of detriment. If the latter, there was no evidence, or it
was perverse, to make a finding that there was no victimisation as the decision
was taken not by Ms Marron but by Ms Owen. The Claimant maintained
the evidence showed that the decision to institute proceedings was
Ms Marron’s and the Respondent had at one time, itself, submitted that the
decision was Ms Marron’s. Reference was made to 5.53 of the Respondent’s
submissions to the Employment Tribunal at page 120 of our bundle.
Respondent’s submissions on appeal
Unfair dismissal
55.
The appeal, submitted Mr Sadiq, was a straight perversity
challenge. He stressed that the Employment Tribunal at paragraphs 12 and 50
had found the Claimant had received adequate training and highlighted the fact
that the Claimant accepted she had not followed proper procedures. The
Employment Tribunal, at paragraph 45, had considered the overriding definition
of misconduct in the Respondent’s disciplinary procedure and at paragraph 46
had related this to the Claimant’s knowledge and experience; accordingly it was
entitled to conclude that the decision to dismiss was a reasonable one. No
errors of law or perversity had been demonstrated in relation to the decision
on unfair dismissal.
Respondent’s submissions on the victimisation appeal
56.
The Respondent sought to uphold the decision of the Employment Tribunal
in relation to its dismissal of the two claims relating to victimisation, and
in its own appeal, to which we shall come shortly, it sought to challenge the
finding of the Employment Tribunal. It was submitted that the evidence did not
show that the decision to institute disciplinary proceedings was
Ms Marron’s. Ms Marron carried out an investigation, provided
feedback and did not take the decision to dismiss, as found by the Employment
Tribunal. Even if, contrary to the Respondent’s submissions, Ms Marron
had taken the decision to initiate disciplinary proceedings, she had no
involvement in the decision to dismiss or the dismissal of the appeal. The
Employment Tribunal found that the concerns in relation to the LPP and
unauthorised loans had been properly raised by Ms Marron and her decision
to investigate them was not motivated by the fact that the Claimant had raised
a grievance.
Respondent’s appeal
57.
This is largely concerned with the Bronze Alert.
Respondent’s submissions
58.
Mr Sadiq submitted that expanding the investigation into the Claimant’s
misconduct to include the Bronze Alert was not a matter raised in the claim
form, nor in the list of issues, and accordingly it should not have been dealt
with; he relied upon Chapman v Simon [1994] IRLR 124 as authority for the proposition that
an Employment Tribunal has no jurisdiction to entertain claims that have not
been pleaded. The Bronze Alert issue was raised for the first time in the
Judgment of the Employment Tribunal and had only been referred to in the
Claimant’s submissions as part of establishing a prima facie case of
general victimisation, rather than as a discrete issue. The Claimant’s witness
statement only referred to victimisation in expanding the investigation into
other LPPs and loan documentation, not in relation to the Bronze Alert. Further,
the Employment Tribunal had applied the reverse burden of proof to be found in
s.54A of the 1976 Act. However, the Court of Appeal in Oyarce v Cheshire County Council [2008] IRLR 653 held that the reverse burden of
proof in s.54A did not apply to victimisation claims. While at common law, the
decision in King v Great Britain China Centre
[1991] IRLR 513 had held that it was permissible for a court or Tribunal to
apply a reverse burden of proof when a Claimant proves facts from which the
court or Tribunal could conclude, in the absence of adequate explanation, that
the Respondent had committed an act of discrimination (which would include
victimisation) the statutory rule did not apply to victimisation claims. The
difference between the approach in King and that of s.54A was
that in a claim to which s.54A applied, it was mandatory for the court or
Tribunal to find that the act of discrimination had taken place, whereas
following King the crossing of the evidential threshold together
with the absence of a satisfactory explanation merely entitles a court or
Tribunal to infer that the act of less favourable treatment was on the
proscribed ground. It was a question of “may” as opposed to “must”.
Mr Sadiq submitted that although the Employment Tribunal did not set out
the principles it applied, it must have applied the test set out in s.54A. The
language at paragraph 57.4 of the Employment Tribunal’s decision was in his
words “s.54A speak”.
“57.4 However, the Tribunal do find that on a balance of probabilities
Ms Marron extended the scope of the allegations to the Bronze Alert. This
was unreasonable and in the absence of adequate explanation from Ms Marron
as to why this was done, the Tribunal conclude that this was on the grounds of
the protected act. The Tribunal therefore find that the Claimant has been
victimised on the basis on grounds of her allegations of contravention of the
RRA. The Respondent is vicariously liable for Ms Marron’s conduct as this
was carried out in the course of her employment.”
59.
Reference was also made to paragraph 42 of the decision of the
Employment Tribunal in which the Tribunal accepted that Ms Marron may have
had valid reasons to expand the allegation to include the Bronze Alert, which
were wholly unrelated to the fact that a grievance had been raised. It will be
recalled the Tribunal had heard no evidence with regard to the thought process
or motivation which supported the suggestion that it considered it “must” make
an adverse finding as opposed to considering that it “may” make such a finding.
60.
It was then submitted that even if the Employment Tribunal did not apply
the burden of proof set out in s.54A, it failed to apply guidance from King;
comparison should have been made with a comparator who had done a similar protected
act; see for example Chief Constable of West Yorkshire Police v Khan
[2001] IRLR 830, and Derbyshire & Others v St Helens Borough Council
[2007] IRLR 540. Further, the Employment Tribunal, it was said, had fallen
into the Zafar trap (see Glasgow City Council v Zafar [1998] IRLR 36) of
inferring discriminatory intent simply by reason of unreasonable behaviour.
There was no adequate basis for inferring that the Claimant had suffered less
favourable treatment or victimisation on the facts.
61.
The reasoning of the Employment Tribunal was also characterised as
inadequate; it needed to set out all the possible factors that might have been
non-discriminatory; reference was made to Bahl v Law Society [2004] IRLR 640, [2004] IRLR 799, where an Employment
Tribunal sought to infer discrimination based on certain findings of fact, it
was necessary to set out those facts; see Anya v University of Oxford & Another
[2001] IRLR 377. In this case the Employment Tribunal had found it was
unreasonable to extend the investigation to the Bronze Alert but they did not
say why. It was wrong to infer victimisation or discrimination simply from
unreasonable behaviour.
62.
There was no evidence to support the finding that the incident was
“trivial”; this was not the evidence of either Ms Morrison or
Ms Marron. Further, the letter containing the disciplinary charges had
been drafted by Ms Morrison, not by Ms Marron.
63.
In relation to the conversation in which Ms Marron was overheard to
say that she had found documents to “nail Victoria”. The Claimant was in a
different room; Ms Owen denied the conversation had taken place and the
reference to documents showed that it was not referable to the Bronze Alert
because this complaint was not based on any documents but might have been relevant
to the other two matters that were the subject of investigation, in respect of
which the Employment Tribunal found there had been no victimisation. It was
not proper to infer victimisation from a failure to call Ms Marron. The
Employment Tribunal had failed to consider the possibility of
non-discriminatory reasons (see Bahl) and had ignored the fact that the day after the
Bronze Alert, Ms Marron had told the Claimant she was disappointed with
her behaviour and said she believed that the Claimant had deliberately not
joined the second call. The Employment Tribunal made no findings that her
views were not genuine. Ms Marron believed that the emergency telephone
conference was very important and the Claimant had failed to give an adequate
explanation. The letter inviting the Claimant to the disciplinary hearing,
dated 14 July 2009, referred to the Bronze Alert as an
instance of failure to follow a reasonable instruction. The Employment
Tribunal also found that Ms Marron had not victimised the Claimant by
subjecting her to disciplinary action because Ms Marron had not taken the
decision to take such action and to dismiss. Although Ms Marron had not
been called to give evidence, her reasons for conduct were accepted in other
respects by the Employment Tribunal in relation to her decision to carry out
the investigation (paragraph 35). The decision not to allow the Claimant to
speak to the cashier, Ms Amarh, the decision to expand the investigation
into unauthorised loans, and the decision not to take action against two
cashiers, also by reference to Bahl, it was surprising that the Employment Tribunal had
failed to find in the Claimant’s favour on the major items of alleged
victimisation, but had found in her favour on the least significant.
The Claimant’s submissions on the Bronze Alert
64.
It was submitted that the Bronze Alert was contained in the list of
issues at 2.2.6 (page 91) under the rubric “other areas of work undertaken by
Claimant”; we deal with this point now. We do not consider that the complaints
relating to the Bronze Alert could be said to relate to “other areas of work
undertaken by the Claimant”, all the more so as it was not referred to in the
ET1 or relied upon as a specific complaint in the Claimant’s witness
statement. The Bronze Alert, therefore, had the status of an unpleaded
complaint.
65.
It was then submitted that the Respondent never objected to the Bronze
Alert issue being raised during the course of the hearing before the Employment
Tribunal. It was submitted the Employment Tribunal did not apply the wrong
test in relation to the burden of proof. Submissions as to the correct burden
of proof were made to the Employment Tribunal so it was well aware of the
correct test. In any event, the Employment Tribunal never said that it was “obliged”
to find discrimination.
66.
The Employment Tribunal highlighted not only the absence of evidence
from Ms Marron but also from other potential witnesses. The Employment
Tribunal could not have drawn any other inference in the absence of
Ms Marron’s evidence. The decision in King was cited, so we
should assume that the Employment Tribunal applied that decision. The Court of
Appeal in King made clear that at the conclusion of all the
evidence, the Employment Tribunal should make findings as to the primary facts
and draw such inferences as it considered proper from those facts. It should
then reach its conclusion on the balance of probabilities, bearing in mind both
the difficulties which face a person who complains of unlawful discrimination
and the fact that it is for the complainant to prove his or her case. So the
Employment Tribunal made appropriate findings from which the inference could
properly be drawn. Further, the other persons involved, namely the cashiers
and the Assistant Branch Manager at Cavendish Square, were not subjected to
investigation, so there was a prima facie difference of treatment. No
other comparator was identified. In the absence of Ms Marron, it is
difficult to see how the Employment Tribunal could have constructed a hypothetical
comparator.
67.
In any event, both in Anya and Bahl, it was
held that in certain circumstances, unreasonable behaviour for which there was
no satisfactory explanation could be the basis upon which an inference of
discrimination might be drawn.
68.
Further, it was submitted that the Employment Tribunal was bound to find
victimisation because (a) there was a finding of vindictive intent (b) there
was no justification for broadening the investigation to include the Bronze
Alert and there was a complete lack of explanation as to Ms Marron’s
motives.
69.
It was submitted to us that there was evidence that the Bronze Alert
incident was trivial and Ms Marron had agreed it did not amount to
misconduct, but we do not know what the evidential basis for this submission
was.
The law
70.
We approach this appeal, in which we have been invited to scrutinise
findings of fact, bearing in mind the dictum of Elias J in Associated Society of Locomotive Engineers &
Fireman v Brady [2006] IRLR 576, paragraph 55.
“The EAT must respect the factual findings of the employment
tribunal and should not strain to identify an error merely because it is
unhappy with any factual conclusions; it should not 'use a fine tooth comb' to
subject the reasons of the employment tribunal to unrealistically detailed
scrutiny so as to find artificial defects; it is not necessary for the tribunal
to make findings on all matters of dispute before them nor to recount all the
evidence, so that it cannot be assumed that the EAT sees all the evidence; and infelicities
or even legal inaccuracies in particular sentences in the decision will not
render the decision itself defective if the tribunal has essentially properly
directed itself on the relevant law.”
71.
We also remind ourselves of the very high standard required in
perversity appeals as set out in Yeboah v Crofton [2002] IRLR 634, in which Mummery LJ had
remarked, at page 93:
“Such an appeal ought only to succeed where an overwhelming case
is made out that the Employment Tribunal reached a decision which no reasonable
tribunal, on a proper appreciation of the evidence and the law, would have
reached. Even in cases where the Appeal Tribunal has "grave doubts"
about the decision of the Employment Tribunal, it must proceed with "great
care", British Telecommunications PLC –v- Sheridan [1990] IRLR 27
at para 34.”
72.
In relation to the duty to give reasons, we refer to rule 30(6) of the Employment Tribunal Rules:
“30 (6) Written reasons for a judgment shall
include the following information-
(a) the issues which the tribunal or chairman
has identified as being relevant to the claim;……
(c) findings of fact relevant to the issues
which have been determined;
(d) a concise statement of the applicable law;
(e) how the relevant findings of fact and
applicable law have been applied in order to determine the issues.”
73.
There is no need to follow rule 30(6) mechanistically and tick off, so
to speak each clause provided. If it is apparent from the written Reasons as a
whole, that the Employment Tribunal has in fact properly identified the issues,
made the appropriate findings of fact, identified the relevant law and
explained how the findings of fact and applicable law were applied to determine
the issues, there is no need to specifically set out its reasons by reference
to the express words of the rule.
74.
In this regard, we refer to Greenwood v NWF Retail Ltd UKEAT/0409/09, paragraph 71.
“We have been prepared to travel as far as we can down Dr
Hardy’s road. Even though we have concluded that since 2004 a judgment must
fulfil the requirements of rule 30(6), we have been prepared to look for the
structure of rule 30(6) and, using the approach in Meek, to seek to
unearth the substance of the rule even though it might be obscured by the
narrative form of the decision. We have reminded ourselves that this Tribunal
should not see rule 30(6) as a straitjacket. But having done so, we think this
judgment neither articulates the issues as fully as the rule requires nor sets
out the facts relating to those issues adequately nor explains its reasons for
reaching the conclusions adequately. Ultimately Dr Hardy was constrained to say
of facts and matters that were not discussed in the judgment that we must
conclude the Employment Tribunal had rejected them. In our judgment when that
approach has to be taken, it is a good indication that the judgment does not
comply with the rule and is not adequately reasoned. Applying our conclusions
on the law to this judgment and, having examined it with care, we are driven to
the conclusion that the judgment does not comply with rule 30(6) either in form
or substance and, is inadequately reasoned to the extent that it is erroneous
in law.”
75.
We now turn to the importance of pleading an issue if the Employment
Tribunal is to have jurisdiction to determine that issue; in Chapman v Simon [1994] IRLR 1424, Gibson LJ at paragraph 42 well
summarised the law:
“Under s.54 of the 1976 Act, the complainant is entitled to
complain to the tribunal that a person has committed an unlawful act of
discrimination, but it is the act of which complaint is made and no other that
the tribunal must consider and rule upon. If it finds that the complaint is
well founded, the remedies which it can give the complainant under s.56 (1) of
the 1976 Act are specifically directed to the act to which the complaint
relates. If the act of which complaint is made is found to be not proven, it is
not for the tribunal to find another act of racial discrimination of which
complaint has not been made to give a remedy in respect of that other act."
76.
The point was considered further in Ahuja v Inghams [2002] EWCA Civ 1292. This was an unusual case in
which evidence was adduced by the claimant and the subject of cross-examination
and submissions which included three allegations of discrimination. Sedley LJ
had this to say at paragraph 49:
“Here, as it happened, one allegation was pleaded but not
formally proved and two were proved but not pleaded. A lay person may be
forgiven for not differentiating between the two things but the law says
otherwise.”
77.
The Court of Appeal accepted the claimant’s submission and the
jurisdiction of the Employment Tribunal was limited to complaints which had
been made to it. Mummery LJ at paragraph 35, had this to say:
“Chapman v Simon is Court of Appeal authority for the
proposition that the jurisdiction of the Employment Tribunal is limited to
complaints made to it. Under Section 54 of the 1976 Act the complainant is
entitled to complain to the tribunal that a person has committed an act of
unlawful discrimination. But it is the act of which complaint is made and no
other that the tribunal must consider and rule on. If the act of which
complaint is made is found to be not proven, it is not for the tribunal to find
another act of racial discrimination of which complaint has not been made and
to give a remedy in respect of that act. The tribunal should confine itself to
the acts of racial discrimination specified in the originating application,
unless it allows the originating application to be amended.”
78.
We now turn to consider the relevant statutory provisions relating to
discrimination by way of victimisation and the relevant authorities. We
approach the question on the basis that victimisation is regarded as akin to,
or a form of, discrimination. We start by referring to s.2 of the Race Relations Act 1976.
“Discrimination by way of victimisation
2(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 —
(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..”
79.
The law relating to victimisation was considered by the House of Lords
in Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830. Lord Nicholls had this to say at paragraph 23:
“23 Victimisation occurs when, in any
circumstances relevant for the purposes of any provision of the Act, a person
is treated less favourably than others because he has done one of the protected
acts. Thus, the definition of victimisation has, essentially, three
ingredients. The first is 'in any circumstances relevant for the purposes of
any provision of this Act'. This is a reference to circumstances in respect of
which discrimination is unlawful under the Act. For instance, under s.4(2) it
is unlawful for an employer to discriminate against an employee by dismissing
him. If an employee brings a victimisation claim based on his dismissal, the
relevant circumstances are his dismissal by his employer.
24
(2) less favourable treatment
The second ingredient in the statutory definition calls for a
comparison between the treatment afforded to the complainant in the relevant
respect with the treatment he affords, or would afford, to other persons 'in
those circumstances'.”
80.
He continued at paragraphs 25 to 26 to set out two possible approaches
as to less favourable treatment. Lord Nicholls continued at paragraph 27:
“27. I see no sufficient reason for departing from the former
approach, adopted by Slade LJ in the Aziz case:
[1988] IRLR 204, p.210. The statute is to be regarded as calling for a simple
comparison between the treatment afforded to the complainant who has done a
protected act and the treatment which was or would be afforded to other
employees who have not done the protected act.”
The burden of proof
81.
Whereas in cases of discrimination, a reverse burden of proof applies
once facts have been proved by the complainant from which the Tribunal could
conclude in the absence of an adequate explanation that the respondent had
committed an act of discrimination in appropriate circumstances, by virtue of
s.54A of the Race Relations Act 1976, this provision, it has
been held by the Court of Appeal, does not apply to cases of discrimination by
victimisation; see Oyarce v Cheshire County Council [2008] IRLR 653.
82.
In cases of victimisation, Employment Tribunals and the courts must
follow the guidance of the Court of Appeal in King v Great Britain China Centre [1991] IRLR 513 in which Neill LJ at page 36 set
out the relevant principles:
“36 From these several authorities it is possible, I think, to
extract the following principles and guidance:
(1) It is for the applicant who complains of racial
discrimination to make out his or her case. Thus if the applicant does not
prove the case on the balance of probabilities he or she will fail.
(2) It is important to bear in mind that it is unusual to find
direct evidence of racial discrimination. Few employers will be prepared to
admit such discrimination even to themselves. In some cases the discrimination
will not be ill-intentioned but merely based on an assumption 'he or she would
not have fitted in'.
(3) The outcome of the case will therefore usually depend on
what inferences it is proper to draw from the primary facts found by the
Tribunal. These inferences can include, in appropriate cases, any inferences
that it is just and equitable to draw in accordance with s.65(2)(b) of the 1976
Act from an evasive or equivocal reply to a questionnaire.
(4) Though there will be some cases where, for example, the
non-selection of the applicant for a post or for promotion is clearly not on
racial grounds, a finding of discrimination and a finding of a difference in
race will often point to the possibility of racial discrimination. In such
circumstances the Tribunal will look to the employer for an explanation. If no
explanation is then put forward or if the Tribunal considers the explanation to
be inadequate or unsatisfactory it will be legitimate for the Tribunal to infer
that the discrimination was on racial grounds. This is not a matter of law but,
as May LJ put it in Noone [1988] IRLR 195, 'almost common sense'.
(5) It is unnecessary and unhelpful to introduce the concept of
a shifting evidential burden of proof. At the conclusion of all the evidence
the Tribunal should make findings as to the primary facts and draw such
inferences as they consider proper from those facts. They should then reach a
conclusion on the balance of probabilities, bearing in mind both the
difficulties which face a person who complains of unlawful discrimination and
the fact that it is for the complainant to prove his or her case.”
83.
The distinction between the statutory requirement in s.54A is that if
the appropriate threshold is crossed, the Employment Tribunal and in the
absence of a satisfactory explanation “shall uphold the complaint”. Under the
principles set out in King, the Employment Tribunal in similar
circumstances is not obliged by the complained proved, but may do so.
84.
It is important to bear in mind that less favourable treatment or
victimisation cannot, as a general rule, be inferred from unreasonable conduct
alone; see Glasgow City Council v Zafar [1998] IRLR 36. This principle has been reiterated
in cases such as Bahl v Law Society [2003] IRLR 640 (EAT) and
[2004] IRLR 799 (CA). However, as was made clear in Anya v University of Oxford & Another [2001] IRLR 405, at paragraph 14, that
unreasonable behaviour in the absence of any explanation may give rise to an
inference of discrimination, a point repeated in Bahl in
the Court of Appeal at paragraph 101. Gibson LJ made the point:
“Racial or sex discrimination may be inferred if there is no
explanation for unreasonable treatment. This is not an inference from
unreasonable treatment itself but from the absence of any explanation for it.”
85.
In Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830 (HL), the House of Lords stressed
that in cases where it was claimed a person was treated less favourably than
others because he had done a protected act, in order to determine whether there
had been less favourable treatment, a simple comparison was required between
the treatment afforded to the complainant who has done a protected act and the
treatment which was, or would be, afforded to other employees who had not done
the protected act.
86.
In Bahl Elias J having stressed the stressed
desirability in most cases for the identification of an actual comparator or
the construction of a hypothetical went on to say (paragraph 113):
“There is an obligation on the tribunal to ensure that it has
taken into consideration all potentially relevant non-discriminatory factors
which might realistically explain the conduct of the alleged discriminator. As
Lord Nicholls put it, if prima facie there is a factor which distinguishes the
two situations, then that may well be the non-discriminatory reason for the
treatment, unless the evidence indicates otherwise. If the tribunal do not
recognise the potential significance of such a factor, then their decision will
be flawed because they will have failed to take into account a potentially
material characteristic or characteristics which could conclusively explain, on
non-discriminatory grounds, the difference in treatment between the applicant
and the hypothetical comparator. A tribunal cannot properly reject such
potentially relevant explanations without considering them and having a proper
evidential basis for rejecting them.”
87.
Elias J continued, at paragraph 114:
“114. However, whilst it is not necessary for tribunals to
specify with precision the hypothetical comparator, they may find it helpful
provisionally to try to do so in order to identify any potentially relevant
explanations which might account for the difference in treatment. Whether they
do account for it or not will depend upon the evidence which emerges during the
trial.”
He continued later:
“126. What is crucial is that the tribunal considers all the
explanations which, in the light of its findings, may realistically explain the
decision. These explanations may be the reasons for the treatment relied upon
by the alleged discriminator which the tribunal accepts as genuine, or they may
naturally suggest themselves in the light of the tribunal’s primary findings of
fact. Provided these potential explanations are considered, the tribunal will
in fact have taken account of all the characteristics that could be material to
the make up the hypothetical comparator, however the comparator is defined.
127. If these possible explanations are going to
be rejected in favour of a discriminatory reason, or if the tribunal finds that
in addition proscribed reasons have contributed to the decision, then the
tribunal ought to say why, and there must be a proper evidential basis for that
conclusion. It is not legitimate to infer discrimination simply on the grounds
that the reasons are unjustified; that would be to fall into the Zafar
trap.
88.
It is of great importance that Employment Tribunals must make clear what findings of fact they have made before drawing
inferences of discriminatory treatment We remind ourselves of the judgement in
Anya v University of Oxford 2001 IRLR 377 in which Sedley LJ
quoted Peter Gibson LJ in Chapman v Simon at paragraph 43:
“... Racial discrimination may be established as a matter of
direct primary fact. For example, if the allegation made by Ms Simon of
racially abusive language by the headteacher had been accepted, there would
have been such a fact. But that allegation was unanimously rejected by the
tribunal. More often racial discrimination will have to be established, if at
all, as a matter of inference. It is of the greatest importance that the
primary facts from which such inference is drawn are set out with clarity by
the tribunal in its fact-finding role, so that the validity of the inference
can be examined. Either the facts justifying such inference exist or they do
not, but only the tribunal can say what those facts are. A mere intuitive hunch,
for example, that there has been unlawful discrimination is insufficient
without facts being found to support that conclusion” (see also Balcombe LJ at
paragraph 33(3)).”
Sedley LJ [at paragraph 9] continued and referred to the
authorities showing
“The ubiquitous need to make the findings of primary fact
without which it is impossible to consider the drawing of relevant inferences.”
89.
We now turn to consider authorities on fairness of dismissal and the
decision of an employer to treat misconduct as gross misconduct so as to
justify summary dismissal. Nudds v Eastwood [1978] ICR 171 was a case in which an employee had
been dismissed for a serious breach of duty in respect of which the employers
had failed to warn him of the likely consequences of his conduct before
dismissing him. The Employment Appeal Tribunal held in such a case:
“The ordinary general practice requires a warning to be given.
There are exceptional cases where it is unnecessary but we do not think that as
a matter of law, as opposed to a matter of fact, it can be said that this was
such as case […]” [per Phillips J]
90.
A similar point appears in Retarded Children’s Aid
Society v Day [1978]
IRLR 128, in which Lord Denning said:
“14. As I have already said, Mr Day was represented by counsel
before this Industrial Tribunal. I am quite sure that his counsel, Miss
Sullivan, put every point before them, particularly the Code of Practice, which
they are entitled to take into account and which Miss Sullivan urged before us.
Para. 133 of the Code of Practice says this: 'Where there has been misconduct,
the disciplinary action to be taken will depend on the circumstances, including
the nature of the misconduct. But normally the procedure should operate as
follows: (i) the first step should be an oral warning or, in the case of more
serious misconduct, a written warning setting out the circumstances; (ii) no
employee should be dismissed for a first breach of discipline except in the
case of gross misconduct'. To that Code there may be added the 'guidance' which
Sir John Donaldson gave in the useful judgment of James v Waltham Holy Cross
UDC [1973] IRLR 202. It is good sense and reasonable that in the ordinary
way for a first offence you should not dismiss a man on the instant without any
warning or giving him a further chance. You should warn him that, if it happens
again, it would be an offence for which he could be dismissed. It is true that
in this case that was not done. There was no initial warning given. He was
dismissed on the instant. But nevertheless that is not a rule which has to be
applied in every case. In some cases it may be proper and reasonable to dismiss
at once, especially with a man who is determined to go on in his own way.”
91.
Finally, we take on board the point made by the Court of Appeal in Bahl
at paragraph 127:
“It is all the more surprising that the ET reached its
conclusion given that it rejected the greater part of the allegations of
discrimination, many more serious than those which it upheld, and yet found
discrimination in relation to a few comparatively minor and inconsequential
allegations.”
92.
This is perhaps an oversight in this case, as the Employment Tribunal
dismissed two significant allegations of discrimination that found proved the
least significant of the three.
Conclusions
93.
We now turn to our conclusions and deal firstly with the Claimant’s
appeal against the finding that there had been no unfair dismissal. In this
regard, we generally prefer the submissions of the Respondent. It is crucial
to bear in mind that the Employment Tribunal found specifically both in regard
to the LPP and authorised loans, that the Respondent was entitled to treat the
Claimant’s conduct as gross misconduct.
94.
The Claimant was a senior employee who was or should have been aware of
the gravity of the breaches of duty, and in those circumstances it was
unnecessary to specifically warn her of the consequences of what she already
knew or should properly have known that the Respondent would regard her
breaches of duty as serious. The Employment Tribunal related the finding of
gross misconduct to the Claimant’s knowledge and experience. The Employment
Tribunal went on to find, as in our opinion was entitled to, that the
Respondent had acted reasonably in treating the Claimant’s gross misconduct as
a reason for her dismissal and that he dismissal was within the band of
reasonable responses.
95.
We bear in mind the importance of having regard to the Respondent’s view
as employer of the gravity of the Claimant’s misconduct and whether the
employer was reasonably entitled to so regard it. The Employment Tribunal
found in favour of the employer and that it was not necessary to impose a
sanction short of summary dismissal. Again, in our opinion the Employment
Tribunal was entitled to make those findings.
96.
It is clear from the Employment Tribunal’s findings, and indeed the
admissions of the Claimant, that she had received adequate training and, as a
senior employee, was perfectly well aware of the proper procedures for the LPP
and authorisation of loans. The fact that there may have been no specific
training was, therefore, irrelevant; notwithstanding, the Claimant accepted she
had been adequately trained and also that she had not followed proper
procedures.
97.
We saw no evidence to suggest that failure to complete LPP forms
correctly was a regular occurrence, or that the manner of completion of the LPP
left significant discretion to persons in the Claimant’s position as to how to
complete them. Neither did we see evidence that similar defaults by senior employees
had been dealt with more leniently. The Employment Tribunal held that the
Respondent was entitled to distinguish between the case of the Claimant and
that of Mr John, the Deputy Manager of the Cavendish Square branch because
he, unlike the Claimant, had complied with the Respondent’s policies and
procedures.
98.
It is irrelevant that other categories of gross misconduct were more or
less serious than that committed by the Claimant.
99.
We have derived no assistance from Carter v Credit Change or Bastick v James Lane,
save that as a matter of principle, the exercise of a discretion may be flawed
if the court or Tribunal improperly failed to have regard to a relevant matter
or has regard to a matter that is irrelevant in making its decision.
100. Trusthouse Forte v Adonis is of no assistance to us. The fact that an employer
does not immediately suspend an employee as soon as alleged wrongdoing is known
to the employer may be a factor in showing that the employer did not reasonably
regard the wrongdoing as an act of gross misconduct. Further, the nature of
the alleged wrongdoing may, in particular circumstances as compared with other
acts of gross misconduct, specifically made known by the employer to employees
be regarded as such as would not justify immediate dismissal.
101. The
Respondent must have had the Claimant’s history and record in mind but
nevertheless the Employment Tribunal found that the decision to dismiss was
within the reasonable band of responses, so far as concern the facts of this
case. We are quite satisfied that the Employment Tribunal gave sufficient
reasons for its decision in this regard and there is no question, therefore, of
any breach of rule 30(6). The argument for the Claimant in relation to unfair
dismissal is essentially one of fact and the appeal is therefore based on a
perversity argument, which cannot in the circumstances succeed.
Discrimination (Claimant’s appeal)
102. It seems
to us that the Employment Tribunal may have misunderstood the Claimant’s case
relating to Ms Marron. It failed to understand that it was Ms Marron
who chose to hold investigatory meetings and escalate the matter to
Ms Owen who, ultimately, took the decision to commence disciplinary
proceedings and to dismiss the Claimant. The Respondent’s submissions (5.53 at
page 122) asserted as much. There appears to have been some confusion in the
mind of the Employment Tribunal between the initiating of the disciplinary
investigation and the decision to impose a sanction. Both were capable of
amounting to less favourable treatment.
103. The
Employment Tribunal, however, did not clearly consider “the reason why” and
Ms Marron’s precise involvement in the decision to initiate disciplinary
proceedings, including the pre-proceeding investigations. In the
circumstances, we consider that the appeal in respect of the dismissal of the
complaints of victimisation be remitted for rehearing.
104. We observe
there is some substance in the Respondent’s submissions that the Employment
Tribunal should have clearly borne in mind that victimisation or discrimination
could not simply be inferred simply from unreasonable behaviour. The
Employment Tribunal, also in our opinion, should have set out all the possible
factors that may have been non-discriminatory, leading Ms Marron to act as
she had. Where the Employment Tribunal sought to infer discrimination, it
should have set out the facts from which discrimination was inferred. We also
accept that the Employment Tribunal may have applied the statutory burden of
proof which does not apply in cases of victimisation. We consider that the
grounds of appeal in these regards are made out and that the relevant matters
relating to the decision to take disciplinary action against the Claimant be remitted for rehearing in the Employment Tribunal.
105. In the circumstances
we do not consider that this matter should be remitted for rehearing to the
same Employment Tribunal which has fallen into error in relation to all claims
of victimisation (we deal with the Bronze Alert shortly).
106. It will be
necessary for the Employment Tribunal to bear in mind the matters we have just
referred to at any rehearing and determine whether the decision to initiate
disciplinary procedures, including investigatory procedures amounted to less
favourable treatment of the Claimant as compared
to the treatment that would have been afforded to a comparator, actual or
hypothetical, in similar circumstances.
Discrimination (Bronze Alert)
107. It is
fatal, in our opinion, that the allegation relating to the Bronze Alert was
neither pleaded, nor in the list of issues, nor referred to specifically either
as an act of discrimination or victimisation in the Claimant’s witness
statements. It is said that it was only raised by the Claimant in her final
submissions as establishing a prima facie case in victimisation
generally, rather than as a discrete issue. What has occurred in this case is
a similarly unfortunate situation as in Ahuja v Inghams where, as we have noted, the point that had not been
pleaded was fully argued. In the absence of an amendment, the Court of Appeal
held that the Employment Tribunal had no jurisdiction to entertain the point.
The Respondent’s appeal in this regard must be allowed.
108. Although we do not need to deal with the other
submissions relating to the Bronze alert as we have heard full argument we will
briefly consider the other points raised in relation to this ground of appeal.
109. As a
general point, and as observed in Bahl, it is surprising that the
Employment Tribunal made a finding in relation to a relatively minor allegation,
having rejected the Claimant’s case on the major allegations of discrimination
and victimisation.
110. The
reasoning in relation to the Bronze Alert is also somewhat sparse. No
consideration has been given as to the identification of identifying or constructing
a comparator
111. We are not
wholly satisfied that the Employment Tribunal gave sufficient consideration to
the possibility of non-discriminatory factors having led to the decision to
bring the Bronze Alert into the disciplinary process, or that it has given a
sufficient explanation as to the facts it found from which victimisation might
be inferred. It should have made clear what these facts were so that one might
see the finding was not simply inferred from unreasonable behaviour alone.
112. We are satisfied
that the Employment Tribunal may have misapplied the reverse burden of proof.
In the circumstances it is not necessary for us to decide the point. It is
clear that King v Great Britain China Centre was cited to the Employment Tribunal and there were
facts from which the Employment Tribunal might properly infer victimisation in
the absence of a failure by the Respondent to give a satisfactory explanation
for Ms Marron’s conduct. Although there is no express reference to King
in the decision of the Employment Tribunal, the decision was predicated on the
failure to give a satisfactory explanation for the introduction of the Bronze
Alert into the disciplinary process. We recognise that the Employment Tribunal
could not properly have simply inferred victimisation because Ms Marron
had not been called. Failure to call Ms Marron meant that there was no
evidence made available to the Employment Tribunal to satisfactorily explain
her conduct in pursuing the Bronze Alert, notwithstanding that her conduct had
been exonerated in other respects. Although in the absence of an explanation
it may be said that there was little else the Employment Tribunal could have
done, however it should have reminded itself that it was not bound to
draw the inference it did.
113. We also
consider that even if the complaint relating to the Bronze Alert could be
considered as trivial, and was not regarded as misconduct in the disciplinary
proceedings, it would not necessarily mean that the inclusion of the Bronze
Alert was not an act of less favourable treatment by reason of a protected act.
114. In the
event, therefore, the appeal by the Respondent in relation to the Bronze Alert
is allowed. The Claimant’s claims in respect of victimisation, other than the
Bronze Alert, will be remitted for hearing before a fresh Tribunal.
115. Before we
conclude this Judgment we would wish to thank both counsel for their
assistance.
