HIS HONOUR JUDGE HAND QC
Introduction
1.
This is an appeal from the judgment of an
Employment Tribunal comprising Employment Judge Goodrich, Ms O’Flynn and Dr
Dungu sitting at East London Hearing Centre over 15 days in May 2011 and
deliberating for a further 5 days between June and October 2011. The written
judgment and reasons were sent out to the parties on 14 November 2011 and
amount to some 49 pages. The outcome was that Mr Ugiagbe’s complaint of race
discrimination succeeded in part and as a result of both he and his former
employer, Tower Hamlets Primary Care Trust, have filed Notices of Appeal. In
effect these crossed in the post and so, rather than an appeal and a cross
appeal, we have before us two appeals. We will refer to Mr Ugiagbe as the
Claimant and to Tower Hamlets Primary Care Trust as the Respondent. The
Claimant has represented himself and the Respondent has been represented by Ms
Ingrid Simler QC.
The history of the
proceedings
2.
As the Employment Tribunal points out in
its judgment this is a case which has “a lengthy history”. The claims were
issued in March 2007 (unfair dismissal and race discrimination) and June 2007
(also allegations of race discrimination). This second claim was issued
because the race discrimination in the first claim was rejected by reason of
the statutory grievance procedures not having been complied with. The cases
were heard in 2008. The Claimant succeeded on his unfair dismissal case and
also on part of his race discrimination case. There was an appeal to this
tribunal by the Respondent against the findings in the race discrimination claims
but there was no appeal against the finding of unfair dismissal and no cross
appeal by the Claimant in relation to the race discrimination allegations,
which had failed. The Respondent was successful on appeal to the extent the
race discrimination allegations were remitted to be reheard by a differently
constituted Employment Tribunal. The last two sentences of the judgment of the
Employment Appeal Tribunal read:
“It goes without saying that the Tribunal will only be
considering the complaints which have been the subject of this appeal. It will
not be open to the Tribunal to reconsider the fairness of Mr Ugiagbe’s
dismissal or the complaints of race discrimination which the Tribunal
dismissed.”
Subsequently a controversy arose as to the scope of the
remission and as to what was open for argument at the rehearing. This resulted
in a note from Keith J, who had presided at the appeal, clarifying the issues
(see pages 256 and 257 of the appeal bundle). Paragraph 3 of that note has led
to some debate and has been referred to and quoted more than once in the
material before us. This is surprising to us because we would have thought its
terms were clear. It is best considered in full:
“Mr Ugiagbe’s solicitors say in their letter of 29 July that the
fact that the rehearing will cover Mr Ugiagbe’s complaint that his dismissal
was discriminatory is inconsistent with our direction that the new tribunal
should not have to reconsider whether Mr Ugiagbe’s dismissal was unfair. That
is wrong. Whether or not the new tribunal finds that Mr Ugiagbe’s dismissal
was discriminatory, the fact is that the previous tribunal’s finding that his
dismissal was unfair was not the subject of any appeal. Admittedly, that was
not because the Trust accepted that his dismissal was discriminatory. It was
because the Trust accepted that he could not challenge the tribunal’s finding
that irrespective of whether Mr Ugiagbe’s race had played any part in the
decision to dismiss him, Mr Ugiagbe’s dismissal had nevertheless been unfair.
The Trust had tried to dress up what the Trust claimed was his redundancy as
voluntary, whereas Mr Ugiagbe was in truth not surplus to the Trust’s
requirements at all, and thus if race had not played any part in the
decision to dismiss him, and if he had therefore been dismissed because
he was thought to be incompetent, none of the steps appropriate to a dismissal
relating to an employee’s capability had been carried out. When we say in
para. 95 of our judgment that it would not be open to the new tribunal to
reconsider the fairness of Mr Ugiagbe’s dismissal, we meant only that it would
not be open to the tribunal to reconsider whether Mr Ugiagbe’s dismissal was
unfair on grounds other than discriminatory ones. It goes without saying that
if the new tribunal finds that Mr Ugiagbe’s dismissal was discriminatory, it
will be open to the tribunal to find - indeed such a finding would be
inevitable - that Mr Ugiagbe’s dismissal was unfair for that reason as well.”
The issues
3.
Very wisely at the outset of the remitted
hearing the Employment Tribunal took the opportunity to discuss the scope of
the hearing with the parties. As a result it was agreed that the first ET1
raised the issue as to whether the dismissal amounted to direct discrimination,
whether there had been less favourable treatment on account of the Claimant’s
African ethnic origin than had been afforded to his line manager, Ms Zora
Bampoe, who was of Iranian ethnic origin, and whether there had been less
favourable treatment on account of the Claimant’s African ethnic origin than
would have been afforded to an hypothetical comparator.
4.
As to the second ET1 at paragraph 24 of
the judgment the Employment Tribunal set out a series of 10 allegations said by
the Claimant to be evidence of or to constitute either direct race
discrimination or discrimination by harassment on grounds of race or both.
These were:
i.
delay in informing the Claimant of
the outcome of the job evaluation under the “Agenda for Change”, which had been
undertaken in December 2005; the Claimant had not been told until December
2006;
ii.
failing to request that the Claimant
should act up when his manager, Ms Bampoe, was absent through illness in
September 2006;
iii.
giving some of the Claimants’s job
functions, namely organising and administering the training of GPs, to Ms
Melanie Warner in September 2006;
iv.
failing to offer the Claimant
alternative work when his job was coming to an end in September 2006;
v.
saying, through Dr Russell, at a
meeting in 2006 that the Claimant “lacked the mental capacity” and making other
denigrating remarks;
vi.
undermining the Claimant at that
meeting by announcing that Ms Melanie Warner would be taking over his duties;
vii.
downgrading the Claimant;
viii.
threatening that if the Claimant
appealed against his treatment he would be dismissed without a redundancy
payment;
ix.
failing to interview the Claimant
for any of the jobs he applied for;
x.
pressurising Ms Bampoe to dismiss
the Claimant.
Agreement about these issues did
not dispose of all difficulties, however, and at paragraphs 25 to 34 of the
judgment the Employment Tribunal gives details of some of the disputed areas
and how some of the difficulties were resolved. It also gives the reader at
paragraph 35 an insight into what is described as the “too aggressive” approach
that it felt had crept into the hearing on both sides of the argument.
Something of that was still recognisable in the hearing before us, which had
been listed for one and a half days but did not finish until late on the second
day. This necessitated reserving judgment, which has been long delayed. This
is entirely the fault of HHJ Hand, who conveys his apologies to the parties.
5.
The upshot of these introductory
paragraphs of the judgment is that the Employment Tribunal had to decide in
relation to the first ET1 whether the dismissal had been less favourable
treatment on the grounds of race and in relation to the second ET1 whether the
ten specific allegations amounted to less favourable treatment on the grounds
of race. In fact the employment Tribunal only addressed nine of these, as
explained below at paragraph 10 of this judgment. Also there was some degree
of overlap between the last three specific allegations in the second ET and the
allegation that the dismissal was on the grounds of race.
The Employment Tribunal’s
approach to the issue of dismissal
6.
At paragraph 3 above we have mentioned
the terms of the remission by the Employment Appeal Tribunal and the subsequent
controversy which attended it. The Employment Tribunal refer to the note from
Keith J at paragraph 15 of the judgment and at paragraph 16 and 17 summarise
its contents. The last three sentences of paragraph 17 are of particular
interest so far as the issue of dismissal is concerned:
“Although the Trust did
not accept that his dismissal was discriminatory, it accepted that it could not
challenge the Tribunal’s findings that irrespective of whether Mr Ugiagbe’s
race had played part in the decision to dismiss him, Mr Ugiagbe’s
had nonetheless been unfair. The Trust had tried to dress up what the Trust
claimed was his redundancy as voluntary, whereas Mr Ugiagbe was in truth not
surplus to the Trust requirements at all, and thus if race had played any part
in the decision to dismiss him, and if he had therefore been dismissed because
he was thought to be incompetent, none of the steps appropriate to a dismissal
relating to an employee’s capability had been carried out. If the new Tribunal
were to find Mr Ugiagbe’s dismissal was discriminatory, it would be open to the
Tribunal to find – indeed inevitable – that Mr Ugiagbe’s dismissal was unfair
for that reason as well.”
7.
This led to the Employment Tribunal
taking the position that it did not need to make a finding as to what had
happened at a meeting on 20 November 2006 (see paragraph 159 of the judgment)
and it discussed the position on dismissal further at paragraphs 202 to 204 in
these terms:
“202. Left to ourselves,
we might have adopted the Jones Tribunal’s findings that gave rise to their
conclusion that the Claimant was dismissed, as there was no appeal against the
Jones Tribunal’s judgment that the Claimant was dismissed by the Respondent on
31 December 2006; and that the dismissal was automatically unfair. The
Respondent defended the case at the Jones Tribunal on the basis that the Claimant
had not been dismissed all. The Respondent presented largely the same evidence
to this Tribunal on the issue of whether the Claimant was dismissed, but
without on this occasion submitting that the Claimant had not been dismissed.
When questioned on this issue by the Employment Judge, Ms Simler stated that we
were invited to make the same findings of fact as the Jones Tribunal had been
asked to do, but that the Respondent’s representative had been wrong in not
accepting that the facts amounted to a dismissal. This is a somewhat
unconvincing submission as, if it is correct, it suggests to us that the
experienced counsel acting for the Respondent at the Jones Tribunal was wasting
their time with arguing an unmeritorious point.
203. There is also a distinction about whether the
Claimant was dismissed (which was not subject to an appeal); and why he was
dismissed (for which the judgment that this was an act of unlawful race
discrimination was subject to the successful appeal).
204. We have, in view of the explicit instruction to do so, made
our findings of fact entirely fresh, being mindful that the judgment that the
Claimant was dismissed is not the subject of an appeal, just as there was no
appeal against the Jones Tribunal’s judgment that various of the allegations of
race discrimination were unsuccessful.”
Ms Simler QC did not accept that
paragraph 202 accurately states the position she adopted at the hearing.
The factual background
8.
The Claimant, who is now 50 years of age,
started working for the Respondent as a Nurse Recruitment and Retention Coordinator
on 11 February 2002. He was dismissed with effect from 31 December 2006. He
acted up as Head of Education and Training for a period of 14 months from May
2003. From October 2005 he became a Practice Development Facilitator and he
was in that post when he was dismissed.
9.
Although the ethnic mix of the Respondent’s
workforce was found by the Employment Tribunal to be diverse, at higher levels
of management the Respondent accepted that
“… The senior management
levels of the Respondent did not match the make up of local people.”
A positive action programme had
been instituted to correct this but in order to qualify an aspirant had to be
in post at a particular grade. In fact the Claimant’s position was to be
downgraded and a good deal of the judgment addresses this aspect of the case.
This issue, which was called “the downgrade issue” is dealt with at paragraphs
18 to 27 of the Grounds of Appeal. During the preliminary sifting process, to
which all potential appeals submitted to this Tribunal are subject, HHJ Burke
QC did not regard those parts of the Grounds of Appeal as disclosing any
reasonable grounds for bringing an appeal and, accordingly, that aspect of the
case was not allowed to proceed and has not been the subject of this appeal.
We need only note, for present purposes that the Claimant’s post was
downgraded.
10.
There had been a restructuring and his
post had been disestablished or, putting it more bluntly, in effect,
eliminated. He was not “slotted” into the new post that had been created.
From 2006 onwards a Ms Melanie Warner took over some of the Claimant’s duties
and he was not asked to “act up” for those who were absent. He was told he was
at risk of redundancy in August 2006 and consideration for other posts was
delayed by the illness of his colleague, Ms Bampoe, who was also a candidate
for any new posts. In November 2006 there was a discussion between the
Claimant and Mr Cusack, then, or shortly to become, Deputy Chief Executive Officer.
The Employment Tribunal found it to have been about the Claimant’s likely
redundancy. The Claimant alleges that in December 2006 the Respondent
threatened to dismiss the Claimant and withdraw his redundancy pay in the event
of the Claimant appealing against his banding. The Employment Tribunal
rejected this, finding instead that the Claimant had been upset by the
reduction in his status from Band 8 to Band 7 and also by being told that the
redundancy funding could not remain in place forever. In the event, the
Claimant left on 31 December 2006 and was paid a redundancy payment.
The Employment Tribunal’s directions as to law
11.
The Employment Tribunal directed
themselves as to the law on race discrimination at paragraphs 172 to 195 of the
judgment. Ms Simler submitted that there were some errors in that
self-direction and we will return to that when discussing her submissions.
The conclusions as to
whether or not the allegations were out of time
12.
The Employment Tribunal addressed the
issue of time limits and concluded that some of the conduct complained about amounted
to single isolated acts whereas other matters could properly be characterised
as continuing acts. The failure to make known the outcome of job evaluation,
the handing over of duties to others and the allegations of threats to withdraw
redundancy payments were, concluded the Employment Tribunal, isolated acts.
All the other allegations amounted to continuing acts. These were not out of
time. The Employment Tribunal then considered whether it should extend time on
the basis that it would be just and equitable to do so not only in those cases
where it had held that the claim was out of time but also in those, which it
had characterised as continuing acts, lest subsequently it be found that it had
been wrong to reach the conclusion that these were continuing acts. The
Employment Tribunal was not prepared to extend time in relation to the
conversations in 2005 and 2006 but it was prepared to do so in all other cases
(see paragraph 225 of the judgment at pages 37 to 38 of the hearing bundle).
Consequently the tenth allegation (paragraph 24.10 of the judgment) was
eliminated from consideration both because it was out of time and because the
Employment Tribunal did not regard it as just and equitable to extend the time
because the allegations, which arose out of conversation in 2005 and 2006, were
significantly out of time and because the Employment Tribunal found as a fact
that the allegations were “incorrect” (see paragraphs 222 to 234 of the
Employment Tribunal’s judgment).
Conclusions on the
allegations made in the second ET1
13.
The Employment Tribunal found at
paragraph 226 of the judgment that Ms Bampoe was not an appropriate
comparator. Accordingly it turned its attention to considering the case of a
hypothetical comparator. The approach adopted by the Employment Tribunal is
set out at paragraph 229 and 230 of the judgment in these terms
“229. As recorded in the Aylott case (above) the question of
less favourable treatment than an appropriate comparator and the question of
whether that treatment was on the relevant prohibited ground are so intertwined
that one cannot be resolved without at the same time deciding the other. We
have given close attention, therefore to the question, why – did the Claimant,
on the proscribed ground receive less favourable treatment than others?
230. We have also given consideration to the issue of whether or
not the Claimant has proved facts from which we could conclude, in the absence
of an adequate explanation, that the Respondent has committed an act of
discrimination or harassment against the complainant, or is to have been
treated, by virtue of Section 32 of 33 RRA, to have done so.”
14.
The Employment Tribunal found there were
troubling aspects to the evidence of some of the Respondent’s witnesses. This
had been dealt with in detailed examples given at paragraph 45, 46 and 47 of
the judgment and the Employment Tribunal returned to this theme at paragraph
231 of the judgment and restated some of the concerns, which included
untruthfulness and inconsistency on the part of some of the Respondent’s
witnesses. The situation is summed up the at paragraphs 232 to 236 of the
judgment in this way:
“232. Looking at the Claimant’s Employment with the Respondent
as a whole, it is striking that his progress or lack of it, must have been
enormously disappointing for him.
233. The Claimant entered the Respondent’s employment on the
highest nursing grade under the Whitley Council grading. He was placed on a
management program to develop the careers of managers from ethnic minorities.
He had the Chief Executive of the organisation as a mentor. He must have had
hopes, or expectations, of career progression with the Respondent, or in the
NHS.
234. Yet not only did the Claimant fail to obtain any promotion
during his years of employment with the Respondent, but his grading very near
the end of his employment, was reduced. This, as Ms Strickland stated in
answer to a question during cross-examination, must have been hugely disappointing
for the Respondent. There are, of
course many reasons why individuals of any ethnic origins reached the limit of
their career progression in an organisation.
235. Considering the case as a whole, therefore, there are facts
that could indicate the presence of racial discrimination, in the absence of
consideration of the explanations for how these events occurred.
236. The issues with which the Tribunal is concerned, are
whether the events which took place about which he complains occurred as a result
of race discrimination, or for other reasons.”
15.
With that in mind, Employment Tribunal
turned to the allegations which had been set out at paragraph 24 of the
judgment. So far as the first allegation was concerned, namely that there had
been a delay of about a year between the job evaluation and the Claimant being
informed as to its outcome, the Employment Tribunal concluded that this was
factually correct. But they found at paragraph 239 of the judgment that the
Claimant was not the only employee who had suffered a delay although they knew
of nobody who had waited so long. There was, however, no evidence to suggest
any ethnic disparity as between “black employees, or of particular racial
origins”. The Employment Tribunal considered the reason for delay at
paragraph 240 and at paragraph 241 regarded it as “questionable” as to
whether the burden of proof had shifted in this case or not but at paragraph
242 reached the conclusion that it had shifted. Nevertheless they concluded:
“… we are satisfied that the Claimant’s treatment was not on the
prohibited ground of race discrimination. We accept the Respondent’s
explanations for the delays as not showing any race discrimination. It was
unsatisfactory having the issue unresolved and the Claimant became unhappy
about the delays, but the reasons were valid ones. We accepted, in our
findings of fact, the Respondent’s explanation that the employee concerned was
not notified until the job evaluation was completed, subject to review and
appeal – the Claimant was not notified of the evaluation panel matching the
Claimant’s job and the consistency panel’s rejection of that match because it
meant that the job evaluation process was incomplete. There were valid reasons
for seeking to find a matching job description to the Claimant’s PDF post – it
would avoid needing to go through a time consuming process of evaluating the
Claimant’s job afresh. When these attempts were unsuccessful, the Claimant’s
JAQ did require further work before it could be submitted for evaluation; and
it was difficult to arrange meetings for all 3 to attend, mainly because of
difficulties in securing the attendance of Ms Bampoe. Eventually the JAQ was
agreed, so the Claimant must have been satisfied that it was a fair reflection
of his job, in order that he agreed it.”
Therefore, the Employment Tribunal
concluded that the first allegation was explained satisfactorily.
16.
The Employment Tribunal next turned to the
seventh allegation, taking it out of sequence, because it also concerned the grading
of the PDF post. The Employment Tribunal found that allegation to be factually
accurate and concluded that it had been satisfactorily explained. There is no
appeal against its finding.
17.
The Employment Tribunal then went back to
consider the second allegation, which concerned the Claimant not having been
asked to “act up” in 2006. At paragraph 251 of the judgment the Employment
Tribunal noted that in the previous year, during the absence of Ms Bampoe, the
Claimant had been asked to take on some of her work “although he was not
formally acting in her position or paid to do so”. The Employment Tribunal
asked itself whether this difference in treatment amounted to less favourable
treatment on racial grounds? The answer at paragraph 254 of the judgment was
in the negative. The Employment Tribunal concluded that the Respondent had
provided a satisfactory explanation of the reason for the Claimant not being
asked to act up in 2006 and consequently held the treatment not to be on racial
grounds.
18.
As to the fourth allegation, which the
Employment Tribunal regarded as linked to the second allegation, namely that
there had been no offer of suitable alternative work in September 2006, at
paragraphs 255 to 258 of the judgment the Employment Tribunal concluded that
there was no need to offer alternative work because, although the organising
and administering of GP training had been transferred, all the rest of the
Claimant’s job functions remain intact and he had plenty of work to do.
19.
The Employment Tribunal’s reasoning in
relation to the third allegation appears at paragraphs 259 to 262 of the
judgment. There could be no doubt that the GP training role had been taken
from the Claimant and given to Ms Warner. The Employment Tribunal concluded,
however, that there were sound organisational reasons for doing so and that
change would have been made irrespective of the Claimant’s ethnic origin;
therefore, that allegation failed.
20.
But the fifth allegation, which related
to the comments made by Dr Russell about the Claimant, succeeded. The
Employment Tribunal in concluding at paragraph 46 that Dr Russell, who was the
Medical Director of the Respondent, had not given a consistent account, said
this:
“Another of the Respondent’s witnesses, Dr Russell, changed his
witness evidence from the first tribunal hearing to this hearing in an
important respect. In the Jones tribunal he stated in his witness statement
that he did not state that Mr Ugiagbe “lacked mental capacity” he did accept
however that he had spoken to Mr Ugiagbe’s line manager and stated that “I
wondered if Mr Ugiagbe had “the mental capacity to deliver the protected
learning programme”. In contrast in his witness statement to this tribunal in
these proceedings, however, he denied having made any such remark. His
explanation for this change in his evidence is highly unconvincing. To put it
plainly, we do not believe that he was telling the truth of this hearing. His
evidence is also unconvincing at some other parts.”
21.
More was said about this at paragraphs
121 to 124 of the judgment and given the significance of the matter, despite
their length, we will set them out in full:
“121. When the Claimant was slotting into the position of PDF in
October 2005, part of his role was to organise training for GPs, with the
assistance of the administrator who was in post (Ms McInerney) and under
direction from Dr Russell.
122. Dr Russell soon formed the opinion that the Claimant was
carrying out this element of his role badly. He made the Claimant well aware
of his dissatisfaction, as the Tribunal has seen from various emails to which
we were referred in the documentation.
123. In dispute is whether, at a meeting on 1 August 2006, Dr
Russell told Ms Bampoe that in his view the Claimant did not have the mental
capacity to carry out the tasks assigned to him. In these proceedings, Dr
Russell has denied that he made this remark; although he accepted in the
hearing before the Jones Tribunal that he stated “I wondered if Mr Ugiagbe
had the mental capacity to deliver the protected learning programme.’” He
does accept, however, that after Ms Bampoe had stated that he
believed that the Claimant is very intelligent and educated and believe that he
had the equivalent of two Masters Degrees, he responded by saying “Wow! Big
deal”.
124. We have no hesitation in finding that Dr Russell did make
the remark alleged including because: –
124.1 We do not believe Dr Russell’s
change of position between his evidence at the Jones Tribunal and this
Tribunal. Put plainly, we find that he was not telling us the truth at this
hearing on this issue.
124.2 Ms Bampoe did refer to the
allegation in a grievance she submitted to Mr Cusack in October 2006. The
matter was then fresh on her mind and, we consider, the most accurate
description of what took place.
124.3 Until his witness statement for
this hearing Dr Russell has not, so far as we were made aware, denied this
allegation and, as described above, has accepted that he did make such a
remark.
124.4 After the Claimant’s employment
with the Respondent ended, he entered a grievance, to which Dr Russell
responded. Dr Russell’s response at that time was, we find, an accurate
reflection of his feelings about the Claimant. Dr Russell’s response to the
grievance was very critical not only of the Claimant’s work, but of him as a
person. Included in his response was the statement “I found his
comprehension poor and his attitude pompous and rigid”. This remark is
consistent with his earlier statement that the Claimant lacked mental capacity;
and his remark “wow big deal”. He made a number of strongly worded
criticisms of his work.
124.5 Dr Russell also stated in his
response that Miss McInerney had informed him that she found him to be lazy and
a bully and that he gave her no support or leadership. Ms McInerney gave
evidence before Dr Russell and disputed that she made such remarks to Dr
Russell. When giving his evidence to the Tribunal Dr Russell backtracked from
the statements he had made in his grievance. Dr Russell’s evidence at this
Hearing was inconsistent with his more contemporaneous comments in reply to the
grievance. This aspect of his evidence further undermined confidence in the
reliability of his evidence to the Tribunal.
124.6 Ms McInerney did give evidence
that Dr Russell was blunt and tactless towards others, although the manner of
the introduction of this evidence gave us some scepticism as to the quality of
the evidence – it was introduced in examination in chief for the first time,
rather than in her witness statement. We find that the manner of his
criticisms, including what were quite personal attacks on the Claimant’s
character were a different scale to others to whom he may have been blunt or
tactless.”
22.
The Employment Tribunal go on to give
examples of “… aspects of the Respondent’s evidence that troubled us” at
paragraph 231 of the judgment and say this about Dr Russell’s evidence at
paragraph 231.2:
“231.2 Dr Russell’s evidence in at least one aspect was untrue.
More generally there were various examples of disparaging treatment by him
towards the Claimant. Where a witness has given evidence that is untruthful
raises the question why they are not being truthful as required under the oath
or affirmation they have given. One possibility might be seeking to cover up
an incident of racial discrimination. Another might be a reluctance to admit
to having racially discriminated towards an employee, even to themselves.”
23.
At paragraphs 263 and 264 the Employment
Tribunal resolve this by concluding that Dr Russell had discriminated against
the Claimant. The terms in which it did so are important to both arguments on
this appeal and again, rather than attempt a summary it is better to set them
out in full:
“263. For the reasons given in our conclusions in which we made
general comments on the burden of proof, the burden of proof shifts to the
Respondent to prove that he did not racially discriminate against the Claimant
in respect of this allegation. In particular:
263.1 We have found that Dr Russell’s
evidence at this Tribunal in denying the remark was untruthful. This poses an
issue as to why Dr Russell was giving untruthful evidence to us.
263.2 One possible reason for giving
untruthful evidence to the Tribunal would be to seek to cover up what, in
retrospect was behaviour that showed him in an unfavourable light and might
lead to a finding that he had racially discriminated against Claimant. This is
what we believe Dr Russell was in fact during.
263.3 In his response to the
grievance of the Claimant, Dr Russell stated that Miss McInerney had informed
him that she found him to be lazy and a bully and that he gave her no support
or leadership. We accept her evidence at this Hearing that she did not say
that; and Dr Russell, in his evidence to this Tribunal withdrew from what he had
written in his grievance. Dr Russell, therefore, was imputing to Ms McInerney
his own views about the Claimants.
263.4 There are other instances of
disparaging comments by Dr Russell about the Claimant such as for example, his
response to Ms Bampoe’s comment about the Claimant’s educational qualifications
where he stated “wow big deal.”
263.5 We have a slight feeling of
unease about Dr Russell referring to Ms Donna Kinnane as “Doner Kebab”. We
appreciate that this remark was probably intended to be a joke and we
understand that Ms Kinnane is of a white Irish background rather than of Greek
or Turkish origins. Nevertheless jokes such as this could show a lack of
awareness of racial sensitivities in an ethnically diverse workforce.
264. We are not satisfied that the Respondent has proved that
the behaviour was in sense whatsoever on
the grounds of race. Put another way we do conclude that the behaviour was
prohibited on the grounds of race. We so conclude for the reasons given above
and because:
264.1 We accept that Dr Russell could
be tactless to individuals whatever their racial origins; as shown in our
findings of fact, although not to the extent of his criticisms of the Claimant.
264.2 We also accept that Dr Russell
genuinely felt that the Claimant was performing poorly in his task organising
and administering training.
264.3 Dr Russell has sought, albeit
belatedly by changing his evidence for the two Tribunal Hearings as to the
remark about mental capacity and has been untruthful in doing so. Additionally,
he has imputed to Ms McInerney views that she did not express to him, which
were also highly disparaging towards the Claimant. As described above, he was
covering up this aspect of his behaviour (at paragraph 263.2).
264.4 We have also concluded that the
manner and extent of these criticisms were influenced by the Claimant’s colour
and racial origins and that he would have treated a white British employee with
those work he was dissatisfied more favourably. He would not have publicly
expressed his criticisms to the employee’s line manager by doubting their
mental capacity and by sarcastically remarking “wow big deal”.
265.5 This complaint of the Claimant,
therefore, succeeds. ”
24.
The Claimant also succeeded in respect of
the sixth allegation, which was that the announcement made by Dr Russell
without prior warning to the Claimant in the “Protected Learning Time” meeting
to the effect that Ms Warner was taking over, amounted to less favourable
treatment on the grounds of race. The Employment Tribunal concluded at
paragraph 267 of the judgment “that the burden of proof shifts to the
Respondent to prove the treatment was in no sense whatsoever on grounds of race”
and at paragraph 268 that:
“… the treatment was on the proscribed ground; and the Respondent
has not satisfied us on the reverse burden of proof.”
stating that:
“We do so for similar reasons as those set out above in respect
of the remarks about mental capacity and other negative language about the
Claimant. Having considered all the evidence, particularly having heard Dr
Russell give evidence, we have concluded that he would have shown more
consideration to a white employee and have been likely to have spoken with him
or her first before making the announcement. The Claimant was therefore, less
favourably treated on racial grounds than a hypothetical white comparator would
have been.”
25.
The ninth allegation failed. The
Employment Tribunal dealt with this at paragraph 270 to 273 of the judgment.
The allegation related to the fact Claimant had not been interviewed for two
jobs and no explanation given as to what had happened to his application.
Although the Employment Tribunal found that the Claimant had been given an
explanation it concluded that the burden of proof shifted because there had
been a lengthy delay. Nevertheless it held that there had been a satisfactory
explanation for the delay because the Respondent had been waiting for Ms Bampoe
to recover from illness. Accordingly, that aspect of the claim failed.
The conclusions of the
Employment Tribunal on the allegations made in the first ET1
26.
The first ET1 complained of unfair
dismissal and that the dismissal also constituted direct race discrimination.
The Employment Tribunal considered this together with the eighth allegation, which
it had identified at paragraph 24 of the judgment as arising out of the second
ET1. In terms of factual findings the Employment Tribunal had considered both
together (see paragraphs 153 to 165 of the judgment). This was because the
Employment Tribunal regarded the latter as part of the sequence of events
leading to the dismissal. Consequently when it considered its conclusions, the
Employment Tribunal also looked at the two matters as is explained at paragraph
274 of the judgment in these terms:
“It is convenient to deal with these two allegations together,
as they both concerned the Claimant’s dismissal – the first being an allegation
of a threat to dismissed; and the second concerns the Claimant’s dismissal.”
27.
The Employment Tribunal concluded at paragraphs
274 to 276 of the judgment that at the meeting on 13 December 2006 the Claimant
had been told that the job evaluation had confirmed the level of his current
post at Band 7. It was currently Band 8A and if he entered an appeal or raised
a grievance, then that might lead to the Band being confirmed as Band 7, which
would have an adverse impact on the level of any redundancy payment, currently
being calculated on the basis of Band 8A. The Employment Tribunal held that
any employee, irrespective of race or ethnic origin, would have been treated
the same and consequently the eighth allegation could not be sustained.
28.
The Employment Tribunal then went on to
ask itself at paragraph 279 of the judgment the following questions:
“Did, therefore, the Claimant’s race play any part in the
Respondent’s decision to dismiss him? Why did the Respondent dismissed the
Claimant unfairly?”
29.
Although the Employment Tribunal found
that Dr Russell had not been involved in the dismissal, for reasons set out at
paragraphs 281 to 284 the Employment Tribunal decided that the burden of proof
shifted to the Respondent but concluded that the dismissal was “in no sense
whatsoever on the grounds of race” (see paragraph 285 to 289 of the judgment).
Submissions – the Claimant’s
appeal
30.
The Claimant complained in his Notice of
Appeal that the Employment Tribunal, having concluded that the burden of proof
had shifted to the Respondent on the issue of the reason for his dismissal, had
not elucidated any satisfactory explanation on the part of the Respondent “that
the treatment was in no sense whatsoever on the grounds of race”. In his oral
submissions he referred to paragraph 143 and 144 of the judgment of the first
Employment Tribunal, which everybody has has described as “the Jones Tribunal”.
These read:
“143. In our judgment there was no reason for the Claimant’s
dismissal on 31 December 2006. It is part of our findings that no decisions on
his employment needed to be made until June 2007 and there were no outstanding
performance or conduct matters that concerned him or made the need to reach a
decision on the Claimant’s future more urgent. The Claimant had instead been
informed that he had been ring-fenced for one of the two jobs, for which he had
applied and therefore had a legitimate expectation that he would be at least be
interviewed for or at most, retained in employment in one of them. There is no
valid explanation as to why he was never interviewed for either post over the
period of time from August to December 2006 and that interviews did not take
place until after his dismissal.
144. It is therefore our judgment that the Claimant was not
redundant at the time of his dismissal and no such case was made to us by the
Respondent at the Hearing.”
31.
The Claimant submitted that conclusion
should stand and therefore the rehearing should have proceeded on the basis
that the Respondent could not establish any reason for the dismissal. Reason
for dismissal and explanation for dismissal are interchangeable concepts.
Instead the rehearing Tribunal had gone “fishing”, as the Claimant put it, for
a reason for dismissal. What the Employment Tribunal had done was to
synthesise a redundancy reason or a reorganisation reason (it was not clear
which) for the dismissal out of very limited factual material. This comprised
the last sentence of paragraph 275 and the first three sentences of paragraph
176 of the judgment, which read:
“ … The Claimant was very upset at being told, at the meeting on
12 December that his banding had been reduced. The Claimant had been expecting
that his banding would at least be confirmed and hopeful that it would be
increased.
276. We are satisfied that this element of the treatment of the
Claimant was in no sense whatsoever on racial grounds. Mr West and Ms Alexander
were seeking to convey information to the Claimant about the possible
implications of how he may respond to what was for him an enormously
disappointing outcome to the job evaluation of the PDF post he had been (sic).
It was difficult for them to do this, because the Claimant was very upset at
the outcome, which was why Mr West wrote to the Claimant’s union representative
to explain what had happened at the meeting and to continue with negotiations
about the ending of the Claimant’s employment.”
32.
What is almost a postscript to the
factual findings appears in the fourth and fifth sentences of paragraph 288 of
the judgment in these terms:
“ … The Claimant and his union representatives were willing to
negotiate terms for his dismissal which include a substantial sum for a
redundancy payment. Neither the Claimant or his union representatives (Mr
Shepherd and Ms Davey) were suggesting at that time there was any race
discrimination in how the Claimant was being treated.”
33.
The Claimant submitted that those
sentences cannot be part of any explanation as to why the steps taken, as
summarised in paragraph 276 of the judgment quoted above, was not
discriminatory. He had included in the appeal bundle an extensive e-mail
exchange between himself and Ms Janine Davey, formerly a trade union
representative, but now employed by Great Western Ambulance Service (see pages
265 to 269 of the appeal bundle). He wished to rely on this material as
demonstrating that, contrary to the conclusion reached by the Employment Tribunal
at paragraph 288, Ms Davey had no involvement in any negotiations about
redundancy. We will return to this matter later in this judgment.
34.
In any event there had been an inadequate
and erroneous investigation of the factual matrix. It was inadequate because
it was superficial and did not have access to the complete picture as it would
have emerged if the position of the trade union officials had been properly
investigated. It was erroneous because the finding at paragraph 164 of the
judgment was simply wrong. The Claimant had not asked Mr Cusack to change his
leaving date.
35.
The Claimant submitted that the
Employment Tribunal had failed to understand the need to identify subconscious
discrimination and had misunderstood that the reversal of the burden of proof
required not simply some sort of explanation but that a non-discriminatory
explanation needed to be raised in order to ensure that there was no
subconscious discrimination. The Claimant accepted that an Tribunal can reject
an employer’s stated reason for dismissal and identify what it considers to be
the real reason for dismissal providing that there is an adequate evidential
basis for such a finding (see McCrory v Magee [1983] IRLR 414)
and always providing that there is no procedural unfairness (cf. Hotson v
Wisbech Conservative Club[1984] ICR 859). Here, however, there had
been both procedural unfairness in that he had not been able to call Ms Davey
to put the trade union role into a proper perspective and there had been no
adequate evidence to justify reversing the conclusion of the Jones Tribunal
that no reason for dismissal had been proved and for, in effect, reverting to
the employer’s reason, namely redundancy, when the evidence that had persuaded
the Jones Tribunal to the contrary had been undisturbed by the Employment
Tribunal presided over by Employment Judge Goodrich.
36.
Moreover, on the second day of the
hearing it became clear that the Claimant was seeking to broaden the scope of
his appeal. He wished to submit that the evidence established that Dr Russell
had influenced the decision to dismiss and the Employment Tribunal ought to
have found the dismissal to have been less favourable treatment on the grounds
of race because he had been involved in the dismissal. As the Claimant had set
out at paragraph 10 of his answer to the Respondent’s appeal Dr Russell and Ms
Alexander were co-directors and the Employment Tribunal had been naive to
accept that they had not been working together and influencing one another. He
wished to argue that either the Employment Tribunal should have found that Dr
Russell had influenced the decision to dismiss or that the Employment
Tribunal’s judgment properly understood by reference to the evidence given to
it amounted to a finding that Dr Russell had influenced that dismissal
decision. He wished us to consider a transcription of notes of evidence taken
by the Respondent’s solicitor at the hearing.
37.
This seemed to us to be a considerable
departure from the appeal set out in the Notice of Appeal and, in essence,
amounted to an application to amend the scope of the appeal. Ms Simler QC did
not object to us looking at the note of Dr Russell’s evidence but she did
object to any proposed amendment or any perspective that lead to a significant
widening not only of the appeal but also of the case itself. She observed that
there had never been any allegation of Dr Russell having been involved in or
influencing any of the “Agenda For Change” matters or any part of the job
evaluation or regrading process affecting the Claimant in the later part 2006
nor of him having been involved in or influencing the termination of the
Claimant’s employment. If there were to be any such amendment or broadening of
the scope of these proceedings, then in fairness to her clients the matter
would have to be adjourned so that not only the notes of evidence of Dr Russell
but those of the evidence of Mr Cusack, Mr West and Ms Alexander could be
obtained and scrutinised.
38.
After the short adjournment on the second
day of the hearing before us we were asked by the Claimant to look at pages 42
to 44 and 46 of the transcript of the solicitor’s note of Dr Russell’s
evidence. These certainly confirm that as co-directors Dr Russell and Ms
Alexander regularly worked and met together. They also confirm (see page 42)
that it was put by the Claimant to Dr Russell that there had been a deliberate
plan to remove the Claimant, which allegation Dr Russell had described as
“arrant nonsense”.
39.
He submitted that the Jones Tribunal had
seen through the Respondent’s case and that on the evidence the same findings
should have been inevitable on the remission. What had happened, however, in
the judgment of the Employment Tribunal from paragraph 279 to 290 is a
completely false conclusion had been arrived at in relation to the role of Dr
Russell. The extent to which this was a superficial analysis can be
illustrated by reference to paragraph 288 of the judgment, which suggests the
presence of Ms Davey, when she never attended any meeting, and consequently
attributes to her something that she never made any comment on.
40.
The scope of an appeal to this Tribunal
has been identified by the Court of Appeal in British Telecommunications
plc v Sheridan [1990] IRLR 27 as misdirection of law, finding of fact
unsupported by the evidence and perversity. As established by the later
judgment of the Court of Appeal in London Borough of Ealing v Rihal
[2004] EWCA Civ 623 in a discrimination case the Tribunal had to have regard to
the “total picture” (see paragraph 25 of the judgment), not look at incidents
in isolation (see paragraph 31 of the judgment) and draw inferences from a
general picture of racial imbalance (see paragraph 53 of the judgment). This
is what the Employment Tribunal here had failed to do. It had failed to consider
the “total picture”, had failed to set the case into a background of racial
imbalance and had failed to draw the obvious inferences from the evidence,
which inferences had been properly drawn by the Jones Tribunal, namely that the
Claimant’s dismissal had been orchestrated by senior management led by Dr
Russell.
41.
Ms Simler QC submitted that at the heart
of the Complainant’s submissions there lay a crucial misunderstanding as to the
character of the adequacy of any explanation of less favourable treatment. It
did not need to be reasonable or justifiable in an objective sense; it needed
only to be accepted by the Employment Tribunal as being true and sincere. This
has its origins in the decision of the House of Lords in Glasgow
City Council v Zafar [1998] ICR 120. It has been
explained and expanded upon in many subsequent cases and she particularly
commended to our attention paragraphs 85 and 94 of the judgment of this
Tribunal in The Law Society v Bahl [2003] IRLR 640.
42.
She provided a helpful summary of the
decision made by the Jones Tribunal. This had rejected mutual termination (see
paragraphs 114 to 123 of that judgment) and also rejected redundancy (see
paragraph 124 of that judgment). The Jones Tribunal had then, in connection
with the dismissal, drawn an inference of race discrimination (see paragraph
128 of that judgment), which had been the subject of the appeal to the
Employment Appeal Tribunal. Then at paragraph 129 of the judgment of the Jones
Tribunal it had reached the conclusion that there had been a breach of the
“statutory procedures”, which rendered the dismissal automatically unfair. The
note from Keith J had made it clear that none but the latter survived the
appeal.
43.
In those circumstances, submitted Ms
Simler QC, the Employment Tribunal presided over by Employment Judge Goodrich
had to rehear a case in which a finding of automatically unfair dismissal for
failure to follow “statutory procedures” remained in place. Therefore what
faced this Tribunal was the need to investigate a set of facts and look for an
explanation as to why the Respondent had behaved as it did. In her submission
it was entirely unnecessary for Employment Tribunal to have to attach any label
to the dismissal at the remitted hearing. It was not concerned with the
“reason” for dismissal so much as establishing why the dismissal had occurred.
44.
Ms Simmer QC submitted that this was what
the Employment Tribunal had done. The factual situation described at
paragraphs 142 to 144 of the judgment was a reorganisation that had taken place
in every NHS Trust throughout the country. As described at paragraph 144 of
the judgment two posts were being eliminated but there were two new positions
being created. This was “a potential redundancy situation”. The Claimant’s qualifications
experience and attributes did not “slot in” to the new posts (see paragraph 145
of the judgment). This had to be resolved by June 2007 and, as the Employment
Tribunal had identified, the Claimant could have stayed until then. As recorded
at paragraph 147 of the judgment the Claimant had been told that he was “at
risk”, although there were two new jobs for which he could apply.
45.
He had applied for both those jobs (see
paragraph 148 of the judgment). By contrast his line manager, Ms Bampoe, applied
for neither. Her position was that she ought to have been “slotted in” to
either of the two new posts and that she was absent through illness, something
which the Employment Tribunal regarded as having delayed any resolution of the
Claimant’s future position at the Respondent. In the latter part of 2006 the
Employment Tribunal found that the Claimant was anxious to have his position
resolved and was upset by the fact that his current position had been
downgraded from Band 8A to Band 7. Consequently he had spoken to Mr Cusack and
the Employment Tribunal rejected his allegations that the latter had dealt with
the Claimant in a blatantly discriminatory fashion (see paragraphs 154 to 156
of the judgment).
46.
When the Employment Tribunal concluded,
as it did at paragraph 159 of the judgment (see again paragraph 7 of this
judgment above), that it did not need to make any specific findings as to what
had happened at a subsequent meeting on 20 November 2006 between the Claimant
and Mr West and Ms Alexander of the Respondent, Ms Simler QC submitted that had
been an entirely correct approach for the Employment Tribunal to take. The
finding at paragraph 160 of the judgment as to the contents of a letter written
by Ms Alexander to the Claimant on 20 November 2006 was entirely supported by
consideration of the third paragraph of that letter (see page 18 of the
supplementary appeal bundle). Likewise paragraph 161 of the judgment
accurately replicated the contents of the letter in reply written by the
Claimant to Ms Alexander on 22 November 2006 (see page 20 of the supplementary
appeal bundle). The letter of 12 December 2006, which appears at page 21 of
the supplementary appeal bundle responded to that letter. There was then a
meeting on 13 December, events at which were the subject of an evidential
dispute between the parties resolved by the Employment Tribunal at paragraph
162 of the judgment in favour of the account given by the Respondent’s
witnesses.
47.
This synopsis of the investigation into
the circumstances immediately preceding the Claimant’s dismissal on 31 December
2006 was mirrored in the conclusions at paragraphs 274 to 290 of the judgment.
The Employment Tribunal had analysed its previous factual findings at
paragraphs 279 to 288 of the judgment and Ms Simler QC submitted the acceptance
of the truth of the explanation at paragraph 288 of the judgment, thus
affording a full explanation that the treatment by the Respondent of the
Claimant had not been by reason of his race or ethnic origin, was
unimpeachable. In the circumstances nothing more elaborate had been called
for.
48.
As to the late attempt to argue that the
Employment Tribunal had really found, or ought to have found, that the
dismissal had been influenced by Dr Russell, this was completely untenable. There
was simply no evidence to support that. Dr Russell had denied it. It had
never been disputed that Ms Alexander and Dr Russell were co-directors and part
of a management team but the issue was whether Dr Russell had been involved in
the dismissal. The evidence supported his denial of involvement and the
Employment Tribunal were entitled to accept it. In the terms outlined by the
Claimant for a successful appeal in his submissions, this argument could not
succeed. The Employment Tribunal had accepted Dr Russell’s denial of
involvement and they were entitled to reach that conclusion.
Submissions – the
Respondent’s appeal
49.
Ms Simler QC summarised the Respondent’s
appeal as misdirection as to the burden of proof, erroneously drawn inferences
not supported by the primary facts and inadequate reasoning. She drew
attention to the unreported judgment of the Court of Appeal in Effa v
Alexandra Health Care NHS Trust (5 November 1999) where Mummery LJ
said:
“It is common ground that an error of law is made by a tribunal
if it finds less favourable treatment on racial grounds where there is no
evidence or material from which it can properly make such an inference. See North West Thames RHA v Noone [1988]
ICR 813 at 824. Although an Employment Tribunal is less formal in its
procedures than a court of law and is not bound by the rules of evidence, it
must be satisfied that the complaint is proved, on the balance of
probabilities, by the person who makes it. In the absence of direct evidence on
an issue of less favourable treatment or racial grounds, the tribunal may
make inferences from other facts which are undisputed or are established by
evidence. However, in the absence of adequate material from which inferences
can be properly made, a tribunal is not entitled to find a claim proved by
making unsupported legal or factual assumptions about disputed questions of
less favourable treatment on racial grounds. This is so whether the
discrimination is alleged to arise from conscious or subconscious influences
operating in the mind of the alleged discriminator.”
50.
The focus of her submission was on the
Employment Tribunal’s conclusion that the evidence Dr Russell had given as to
the remark made to Ms Bampoe about the Claimant’s capacity to put the
“Protected Learning Programme” into effect had been untruthful (see paragraphs
46, 123 and 124, 231 and 263 of the judgment). The Employment Tribunal based
this on a combination of inconsistency as between one account and another,
sarcasm about the Claimant’s qualifications and a perception that his attitude
towards the Claimant went beyond his normal blunt and tactless manner. The
latter was without any evidential foundation, the first and second had been
given an emphasis out of all proportion to their real significance. This was a
classic mixture of inferences being drawn as a sanction for the Employment
Tribunal’s dislike of Dr Russell’s approach to the Claimant and being drawn
because they were open to be drawn. In other words the Employment Tribunal had
erroneously drawn an inference not because it was an objectively proper
inference to draw but because the Tribunal was subjectively ill-disposed to the
Respondent. This removed from consideration the possibility of drawing a more
neutral inference, namely that Dr Russell had been embarrassed by his own
forthrightness and had sought to present a rather less harsh picture.
Paragraph 263.2 is in these terms:
“One possible reason for giving untruthful evidence to the
Tribunal would be to seek to cover up what, in retrospect was behaviour that
showed him in an unfavourable light and might lead to a finding that he had
racially discriminated against the Claimant. This is what we believe Dr
Russell was in fact doing.”
and represented the high water mark of this approach.
There was no need to combine the “unfavourable light” and discrimination
proceedings. This is a classic illustration of the error of drawing an
inference because it might be open or rather as a “tick box exercise”.
Ultimately it results in paragraph 264.4:
“We have concluded that the manner and extent of these
criticisms were influenced by the Claimant’s colour and racial origins and that
he would have treated a white British employee with whose work he was
dissatisfied more favourably. He would not have publicly expressed his
criticisms to the employee’s line manager by doubting their mental capacity and
by sarcastically remarking “wow big deal”.”
This is a non-sequitur and a
conclusion drawn without an adequate factual foundation.
51.
The second main plank of the Employment
Tribunal’s conclusion related to the announcement made in a meeting without
warning to the Claimant that Ms Warner would be taking over the Claimant’s
function in relation to the training of GPs. The Employment Tribunal
considered that the burden of proof shifted to the Respondent to give a
non-discriminatory explanation (see paragraph 267 of the judgment). Ms Simler
QC submitted that before considering whether the burden of proof shifted the
Claimant had to establish a case of less favourable treatment in terms of the
allegation made. This was that the Claimant had been undermined not that he
had been taken by surprise. But the Employment Tribunal had found at paragraph
119 of the judgment that he had not felt “very seriously undermined or
humiliated at the time”. What the Employment Tribunal had addressed at
paragraphs 265 to 269 of the judgment was the Claimant being taken by surprise
not that he had been humiliated or undermined. This was a Chapman v
Simon
error of the Employment Tribunal finding a case proved when it had not been in
issue. Moreover, the reasoning at paragraph 268 of the judgment, drawn as it
is from the first adverse finding against Dr Russell, does not support the
conclusion arrived at.
52.
On any analysis this finding against Dr
Russell must be one of unconscious discrimination. It was unsupported by
evidence and Ms Simler QC submitted that we should substitute a finding that
there has been no discrimination.
Discussion and Conclusion
The Claimant’s Appeal
53.
We turn first to the question of Ms
Davey’s evidence. An application, in the form of a letter, had been made on 23
March 2012 for Ms Davey to be called to give evidence (see pages 263 and 264 of
the appeal bundle). This followed broadly the parameters for the calling of
fresh evidence established by the Court of Appeal in Ladd v Marshall
[1954] 1 WLR 1489
and it was made a few weeks before the Practice Statement of 17 April 2012 was
promulgated by the President. We are not entirely clear as to whether any directions
were ever given in relation to this application but even if they were not we do
not see why the Claimant has not complied with the terms of the Practice
Statement by seeking a review by the Employment Tribunal. In the event that
has not happened and we could leave the matter there but, having considered the
terms of the e-mails passing between the Claimant and Ms Davey (see pages 265 -
269 of the appeal bundle), we should add that we cannot see how this evidence
should have made any impact on the decision made by the Employment Tribunal.
In our view it makes no impact whatsoever on the findings at paragraph 162 of
the judgment nor on paragraph 288 of the judgment. In short the evidence
cannot be admitted but, even if it were, it could make no difference.
54.
The Employment Appeal Tribunal always
endeavours to assist a self represented party to present their case and
sometimes that includes a degree of liberality as to what this Tribunal is
prepared to entertain but the attempt by the Claimant to broaden the case and
introduce notes of evidence without following the prescribed procedure goes
well beyond the margin of appreciation that can be allowed to any self
represented party. The reference to this material crosses the line between
assisting an unrepresented party to present the case in the best possible light
and extending a degree of latitude, which amounts to creating an exceptional
situation in relation to material, which would be excluded by all the usual
parameters for the receipt of fresh material on appeal.
55.
Very generously Ms Simler QC agreed to
our looking at the notes of evidence. Having done so it seems to us that they
entirely support the conclusions arrived at in the judgment by the Employment
Tribunal. They certainly do not provide a basis for the submission, which the
Claimant wished to make, namely that the Employment Tribunal on the evidence
before it ought to have held the Dr Russell was involved in the dismissal
process in November and December 2006. Dr Russell denied any involvement; the
Employment Tribunal clearly accepted his evidence on that point and was
entitled to do so. We are not prepared to permit any amendment at this stage
to the Grounds of Appeal but even if any such amendment were permitted, it
would be doomed to fail on the evidential material that we have seen.
56.
There is a certain logical symmetry about
the proposition that any consideration of an explanation as to why an employee
has been dismissed must involve consideration of the reason for that
dismissal. It seems to us that this case is an illustration of the
difficulties that arise when litigation is drawn out, both over a considerable
period of time, and also back and forth in the appeal process. The case can
become stratified and keeping the various layers identifiable and separate may
be increasingly difficult. We accept the Claimant’s observation that the
Employment Tribunal have never clearly identified whether in their judgment the
reason for dismissal in this case was redundancy or some other substantial
reason the nature of the reorganisation.
61.
That in our view cannot, however,
be any basis for criticising the Employment Tribunal. It did not face the task
of deciding whether or not the Claimant had been dismissed. This had been
decided by the Jones Tribunal, a decision not challenged in the first appeal.
What had been successfully challenged on the first appeal was the finding by
the Jones Tribunal that the Claimant had been dismissed by reason of race
discrimination. The question which faced the Employment Tribunal on remission
was to decide whether the conduct of the Respondent towards the Claimant in
respect of a series of allegations that he made about his treatment amounted to
direct race discrimination and whether the explanation for his dismissal was
direct race discrimination.
57.
In resolving these questions the
Employment Tribunal looked very carefully at a considerable amount of
evidential material over a lengthy hearing. In our judgment they reached clear
and cogent conclusions in accordance with the terms of the remission that had
been explained in the note from Keith J. We agree with Ms Simler QC that their
primary concern was to establish the truth of the explanation. We are not
concerned with the fact that the evidential material might have been viewed
differently with a different outcome. Inevitably that must be a possibility
having regard to the fact that the Jones Tribunal took a different view of the
outcome. The question is whether any error of law, in the form of a
misdirection or of a conclusion drawn without evidential support or of a
conclusion that no reasonable tribunal properly directing itself on the evidence
could have reached can be found in the judgment. We have reached the
conclusion that this Employment Tribunal properly directed itself, made
findings that were supported by the evidence and reached a conclusion that
could not possibly be described as perverse.
The Respondent’s appeal
58.
The remarks we have just made in respect
of the Claimant’s appeal might be thought to apply equally to the submissions
of Ms Simler QC; after all, what is sauce for the goose is sauce for the
gander. But the matter is not so simple because the appeals are not mirror
images.
59.
Ms Simler QC’s first criticism related
partly to unsound inferences and she relied on the passage in the judgment of
Mummery LJ quoted above at paragraph 49 of this judgment. But a little later
in the judgment Mummery LJ said this:
“There are, of course, many cases in which it is reasonably open
to different tribunals to reach different conclusions on questions of secondary
fact as well as of primary fact. In those cases an Appeal Tribunal or Appeal Court is not entitled to interfere solely on the ground that it would have taken a
different view of the evidence and the facts.”
60.
We appreciate that Ms Simler QC was
submitting that the Employment Tribunal could not have drawn the
inferences that it did but we have concluded that in reality she was arguing
that the Employment Tribunal should not have drawn those inferences. It
is perfectly true that a lie may be told for many reasons and the Employment
Tribunal could have concluded that in this case it had been told to cover up
embarrassment at crass behaviour. But it did not and it seems to us that it
was open to the Employment Tribunal to conclude that Dr Russell had changed his
evidence in order to hide discriminatory behaviour.
61.
Nor do we agree that a perception that
his attitude towards the Claimant went beyond his normal blunt and tactless
manner was a non sequitur or that his evidential inconsistency and sarcastic
attitude towards the Claimant’s qualifications were given an unwarranted and
exaggerated emphasis. It is not a cliché to say that having seen the witness
and heard his evidence tested the Employment Tribunal was in a far better
position than we are to reach inferential conclusions. We can find no basis
for thinking that the Employment Tribunal was motivated to draw inferences as a
sanction against Dr Russell for conduct of which it approved. On the contrary
it seems to us that the Employment Tribunal strove to produce a balanced
judgment and, although the text of the judgment shows the strain of having to
distil a great deal of factual material in a short time and synthesise it into
a coherent form, we think the Employment Tribunal has achieved that objective.
62.
Ms Simler QC’s second point has caused us
more difficulty. The Claimant’s complaint about the PLT meeting in July 2006
had consistently been that he had been “undermined” and paragraph 24.6 of the judgment
accurately reflected that. Paragraph 119 of the judgment, on the other hand,
finds that the Claimant “did not feel very seriously undermined or humiliated
by the announcement at the time, although he was upset at the announcement
being made publicly without prior notification to him about it”.
63.
We accept that therefore the focus must
be on him feeling upset rather than feeling undermined. This does not in our
view, however, mean that the Employment Tribunal have fallen into the error
identified by the Court of Appeal in Chapman v Simon. Here there
is a difference of degree that might well make a significant impact on
compensation but this is not something of an entirely different character.
Indeed the phrase “very seriously undermined” indicated that there had been
some such impact albeit in a minor key.
64.
Furthermore we think the Employment
Tribunal were entitled to apply the view they had formed of Dr Russell in
another context to these circumstances as well. The Employment Tribunal is not
required to sequester its findings one from another. Taking an overall view,
as this Tribunal did, it is a perfectly proper approach to the task of finding
facts and drawing conclusions from them to apply conclusions reached in one
context to another.
65.
Accordingly we will dismiss both the
appeal and the cross appeal.
