SUMMARY
UNFAIR DISMISSAL
RACE DISCRIMINATION
The Appellant appealed against the dismissal of his claim for
racial discrimination on the ground that the Employment Tribunal’s reasons were
inadequate. The Respondent cross‑appealed against the finding that his
dismissal was unfair on the ground that the ET erred in law by substituting its
own findings of fact for those of the Respondent rather than asking whether
there had been a reasonable investigation.
Held
(1) The appeal would be dismissed, since the reasons of the ET,
although brief, were adequate in the circumstances of the case.
(2) The cross‑appeal
would be allowed, since the ET had erred in law by substituting its own
findings of fact for those of the Respondent.
THE HONOURABLE MR JUSTICE SINGH
Introduction
1.
The Claimant before the Employment Tribunal appeals against its findings
on racial discrimination. The Judgment was sent to the parties on
8 March 2012. The Respondent cross‑appeals against the same
Judgment in relation to the finding that the Claimant had been unfairly
dismissed. We will deal with each of the appeal and the cross‑appeal in
turn in due course.
Background facts
2.
The background facts can be summarised briefly. The Appellant commenced
employment as a Band 3 Healthcare Assistant with the Respondent on
5 October 2005. In 2008 he faced various allegations of misconduct,
which were investigated and were the subject of a report dated 6 October
2008. Ultimately, those allegations were not the subject of any formal
disciplinary proceedings but were the subject of a meeting on
28 January 2009, which resolved in an agreement that the Appellant
would move to a new ward, that is Norbury Ward, which is a medium‑secure
13‑bed inpatient psychiatric intensive care unit particularly for men
aged 18 to 65. The meeting also resolved that he should attend an anger
management course.
3.
Subsequently, on 12 March 2010 a series of incidents occurred
in respect of which a Mr Hearn, who was Security Lead, reported to the
Operations Manager that the Appellant had behaved in an aggressive manner
towards both himself and other members of staff. In consequence, the Appellant
was suspended on 15 March 2010. An investigation was carried out by Sally
Ann Bailey, Clinical Co-ordinator, which concluded in November that year. A
disciplinary hearing took place on 15 and 17 December 2010, which was
chaired by Mike Callaghan, Head of Clinical Pathway for Developmental
Psychiatry and Offender Health. This resulted in the Appellant’s dismissal by
letter of 19 January 2011. His appeal against that was unsuccessful
and this was confirmed by letter dated 13 June 2011.
The Employment Tribunal’s Judgment
4.
The Employment Tribunal, as we have already indicated, found that the
Claimant had been unfairly dismissed by the Respondent. It also found that his
complaints of unlawful racial discrimination were not well founded and those
were, accordingly, dismissed. After setting out its findings of fact at some
length, the Tribunal set out the relevant law as it understood it at paragraphs 67
to 75, summarising first the law in relation to unfair dismissal and then the
law in relation to racial discrimination. As we understood it, neither party
before us quarrelled with the summary of the law as stated in those passages.
However, each party before us does contend that the Employment Tribunal fell
into error when it came to apply those principles in the particular context of
this case.
The Appellant’s appeal on racial discrimination
5.
The part of the Employment Tribunal’s Judgment that addressed the
complaint of racial discrimination was, indeed, succinct. At paragraphs 83
to 85 the Tribunal said, as follows:
“83. The Tribunal found no facts on which it could have
concluded in the absence of an adequate explanation from the Respondent that
the Claimant had been unlawfully discriminated against on the grounds of race.
84. Although the Tribunal found that the decision to dismiss the
Claimant relied upon an erroneous belief that the Claimant had refused to
attend an anger management course, we found that the Claimant’s colour played
no part in the decision to dismiss the Claimant.
85. In any event most of the matters relied upon by the Claimant
as amounting to unlawful racial discrimination were out of time having regard
to the date of presentation of the Claimant’s claim form on
11 March 2011. The Tribunal found no grounds to justify the exercise
of its discretion to extend time on just and equitable grounds.”
6.
On behalf of the Appellant, Mr Brown makes essentially three
criticisms of that part of the Tribunal’s Judgment. The first is that the
Tribunal’s reasoning is so brief as not to comply with the fundamental
requirement that adequate reasons should be set out for its decision. He
relies upon the well-known decision of the Court of Appeal in Meek v
Birmingham District Council [1987] IRLR 250. However, it is important
to remind oneself that as Bingham LJ, as he then was, stated at
paragraph 8 of that judgment:
“In giving its reasons a Tribunal is not required to produce an
elaborate formalistic product of refined legal draughtsmanship, rather the
essential but fundamental requirement is that the reasons should enable the
parties to know why they have won or lost and, indeed, enable an appellate
court or tribunal to determine whether a question of law arises.”
7.
The application of that well‑known and important principle will,
of course, depend on the facts of each case. Mr Brown criticises the
passages that we have quoted from the Tribunal’s Judgment on the basis that it
simply fails to grapple with the essence of what the Appellant’s case before
the Tribunal was. Our attention has been drawn to a number of documents to be
found in the procedural history of this litigation, which show what the
allegations of racial discrimination being made by the Appellant were.
8.
There was a draft list of issues considered by the Employment Tribunal.
Paragraph 10 of that list set out the Appellant’s allegations against the
Respondent, in particular, by reference to four alleged instances of
discrimination. The first of those was his dismissal, which was said to be on
17 December 2010. The second was that he had been referred to an
anger management course in 2008 on an unfounded allegation. In fact, as the
Tribunal’s finding makes clear at paragraph 11, that should have been a
reference to 28 January 2009 at the meeting to which we have already
referred. However, that is not a material distinction. The third allegation
being made was that on receiving a report that the Claimant had mental health
problems, the Respondent was alleged to have regarded and treated the Claimant
as if he had mental health issues. This was a reference to an event on
3 October 2009 (see the Employment Tribunal’s Judgment at
paragraph 25). The fourth and final allegation then being made by the
Appellant was that he had been redeployed when there was no redeployment support
plan. This related to an event on 17 August 2009 (see the Employment
Tribunal Judgment at paragraph 17).
9.
There were then several interlocutory stages before the Employment Judge
because he had required the Appellant to give further and better particulars of
suggested comparators for the purpose of the racial discrimination
allegations. It is clear that the Appellant himself, contrary to what had
originally been alleged by his then solicitors, wished to allege that he had
been discriminated against on grounds of his nationality, as distinct from the
more limited ground of colour. The Employment Judge clearly took the view that
that was an unwarranted attempt to expand the nature of the claim and refused
permission to do that. Accordingly, what eventually transpired was a document
headed confirmation of Claimant’s comparators (at 10A-D) which gave better
particulars of the four allegations to which we have already referred, and did
so on the ground that the Claimant had been discriminated against on grounds of
colour, for example, paragraph 10A complained the decision to dismiss him
had been taken because he is black and asserted that a non‑black person
with similar circumstances, hypothetically, would have been treated
differently. The fundamental submission that Mr Brown makes now is that
the Employment Tribunal’s Judgment did not grapple with these suggested
allegations of racial discrimination in the past, leading up to the Appellant’s
dismissal.
10.
On behalf of the Respondent, Mr Cooper did not quarrel with the proposition
that in principle allegations of this kind relating to past events, even if
themselves out of time, can be relevant evidence in order to support an
allegation that, for example, a Claimant has been dismissed on racial grounds.
Nevertheless, Mr Cooper submits that when the Judgment is read as a whole
there is no error or inadequacy of reasoning in the Tribunal’s Judgment however
terse, as he put it, its reasoning at paragraphs 83 to 85 might be
considered to be. He submitted that when one looks at the early findings of
primary fact the Tribunal’s Judgment does, read as a whole, provide adequate
reasons for its conclusion that the Claimant was not discriminated against on
racial grounds. In particular, Mr Cooper has drawn our attention to the
Judgment of this Tribunal in Qureshi v Victoria University of Manchester [2001] ICR 863 when the President was Mummery P. Our attention
has been drawn in particular to a lengthy passage at page 874D to 875H.
Though it is not necessary to recite the whole of that passage reference should
be made to it by anyone concerned.
11.
The fundamental proposition for which Mr Cooper relies upon Qureshi
for is to be found at page 875G, where Mummery P said:
“In the present case it was necessary for the Tribunal to find
the primary facts about those allegations. It was not, however, necessary for
the Tribunal to ask itself, in relation to each such incident or item, whether
it was itself explicable on “racial grounds” or on other grounds. That is a
misapprehension about the nature and purpose of evidentiary facts. The
function of the Tribunal is to find the primary facts from which they will be
asked to draw inferences and then for the Tribunal to look at the totality of
those facts (including the Respondent’s explanations) in order to see whether
it is legitimate to infer that the acts or decisions complained of in the
originating applications were on ‘racial grounds’.”
We accept that submission and approach matters on that footing.
12.
Turning to the various allegations of past events upon which the present
Appellant was relying in order to provide evidential support for his primary
allegation that his dismissal was on grounds of race, Mr Cooper draws our
attention to earlier passages in the Employment Tribunal’s Judgment where they
dealt with those matters. The first relates to the desire to put the Appellant
on an anger management course. This was dealt with by the Employment Tribunal
at paragraph 11 of its Judgment. It is unnecessary to lengthen this
Judgment unduly by setting that out in full but, again, reference can and
should be made to it by anyone concerned. We accept Mr Cooper’s
submission that what the Tribunal did in that passage was set out both the
primary fact of referral to an anger management course and also the
Respondent’s reasons for doing so. Mr Cooper submits, and we accept, that
in accordance with the decision in Qureshi that is as much as was
required so far as setting out the primary facts is concerned.
13.
The second matter related to the suggestion of mental health problems.
This was dealt with at paragraph 25 of the Tribunal’s Judgment and related
to an incident on 3 October 2009. This was an incident on the ward
involving the Claimant and a Band 5 staff nurse co-ordinating a shift, a
Patsy Baffour. In fact it is common ground, so we are informed, that
Ms Baffour is also black. In any event, what then follows in the rest of
paragraph 25 of the Tribunal’s Judgment makes it clear, as Mr Cooper
submits, what the primary facts in relation to this incident were. Again, we
accept that is all the Employment Tribunal was required to set out by way of
primary fact in accordance with Qureshi.
14.
The third matter related to redeployment. This was dealt with, as
Mr Cooper accepts, more briefly at paragraph 15 of the Tribunal’s
Judgment. Nevertheless, we accept Mr Cooper’s submission that the primary
facts were sufficiently set out on this matter. Furthermore, Mr Cooper
submits, and we accept, that there was very little evidence indeed, even from
the Claimant himself, that there had been discrimination in this case on
grounds of colour. Apart from the bare assertion, which no doubt he made
before the Employment Tribunal and will have been considered by that Tribunal,
which had the opportunity to assess all of the evidence given before it, there
was very little to support his allegations that any of the incidents complained
about, still less his dismissal, had been based on grounds of his colour.
15.
What there was instead was a continuation of a theme which he had begun
in his failed attempts earlier in the proceedings to widen the scope of the
allegation to include matters of nationality. In particular in his witness
statement before the Employment Tribunal at paragraphs 10, 11 and 35, it is
clear to us that the Appellant was attempting to make allegations that the
alleged discrimination against him had been on grounds of his nationality. He
is a man of Nigerian nationality and he was drawing attention to other
individuals who were of other nationalities, for example, Ghanaian.
16.
Against that background we accept Mr Cooper’s fundamental
submission that in the particular circumstances of this case, and reading the
Judgment of the Tribunal fairly and as a whole, no more was required in order
to comply with Meek than the Tribunal itself said at paragraphs
83 and 84 of its Judgment.
17.
The second main criticism that Mr Brown makes of this aspect of the
Tribunal’s Judgment is that it failed to address the suggestion being made by
the Appellant that there was, in this case, a continuous act. This, of course,
had relevance to the time limit. There is no material distinction in the
relevant legislation before and after 1 October 2010 when the Equality
Act 2010 came into force. There is a slight change in the wording of the relevant
legislation: s.123 of the new Act now refers to “conduct” extending over a
period, whereas the Race Relations Act 1976 as amended used in the past
to refer to an “act” extending over a period. Nevertheless, on well
established authority it is clear that in relevant cases where there is a
continuous act, the time limit only begins to run from the end of that
continuous act (see, for example, Hendricks v The Commissioner of Police for the Metropolis
[2003] ICR 530, in particular at paragraphs 51 to 52 in the Judgment of
Mummery LJ).
18.
In the present case when the Tribunal was directing itself as to the
law, it is clear that it was well aware of both the legislation on this point
and the decision of the Court of Appeal in Hendricks itself (see
paragraph 73). Mr Brown makes the observation that in a number of
documents that were before the Tribunal, including the list of issues to which we
have already made reference (at paragraph 13) the question of whether
there were continuing acts of discrimination in this case was put squarely
before the Tribunal. He also submits that, as paragraph 4.10 of its
Judgment makes clear in setting out the issues before it, the Tribunal was
again aware that an issue about whether the allegations involved a continuing
act arose before it. However, Mr Brown submits, the Tribunal fell into
error because it never returned to answer that question.
19.
Mr Cooper’s response to this criticism is both simple and, in our
judgment, persuasive. Mr Cooper submits that there was no need in the
particular circumstances of this case for the Tribunal to address this
question. This is for the simple reason that the earlier complaints made could
only have relevance if the dismissal, which is the end point in time concerned,
was found to have been on grounds of race. As Mr Cooper submits, it is clear
on the Tribunal’s findings that they were unpersuaded that the Appellant was
discriminated against on grounds of race when he came to be dismissed. That is
the clear conclusion to which they came at paragraph 84 of their
Judgment. In those circumstances we accept Mr Cooper’s submission that in
this particular case the Tribunal was not then required to return expressly to
dismiss the question of continuing act because that was clearly implicit in its
overall reasoning.
20.
The third criticism that Mr Brown makes of this aspect of the
Tribunal’s Judgment is that it failed to provide adequate reasons as to why it
was not prepared to extend time (see paragraph 85 of the Judgment). Mr Brown
submits on the basis of British Coal Corporation v Keeble [1997] IRLR 336, particularly at paragraphs 8 to 9, that in exercising the just and
equitable discretion to extend time in discrimination cases reference can be
made to the factors set out in s.33 of the Limitation Act 1980, for
example, the length and reasons for the delay. However, it seems to us that
this ignores the fundamental point that the just and equitable jurisdiction is
deliberately created by Parliament to be a broad one and not necessarily to be
constrained in the way that, for example, s.33 might be in the context of an
ordinary civil claim.
21.
Mr Cooper reminds us in this context of the decision of the Court
of Appeal in Robertson v Bexley Community Care
[2003] IRLR 434, in particular in the Judgment of Auld LJ at
paragraph 25. As Auld LJ emphasised in that passage, an appeal
against the exercise of discretion by an Employment Tribunal should only
succeed where it is possible to identify an error of law or principle making
the decision of the Tribunal below plainly wrong. We can identify no error of
law or principle in the exercise of discretion by the Employment Tribunal in
this case. The only criticism that Mr Brown makes of paragraph 85 is
that it is inadequately reasoned. We do not accept that submission. In
essence the Tribunal has a broad discretion based on just and equitable grounds
and it was not prepared to exercise that discretion. As we understand it, very
little if anything was placed before that Tribunal to warrant the exercise of
the discretion. However, in any event, it is not for this Appeal Tribunal to
substitute its own view for that of the Employment Tribunal. As we have
already said, there was no error of law in the exercise of its discretion and
that is the end of this particular complaint.
Respondent’s cross-appeal on unfair dismissal
22.
We turn now to the Respondent’s cross‑appeal. This relates to the
finding by the Employment Tribunal that the Appellant was unfairly dismissed.
The Tribunal set out its conclusions on unfair dismissal between paragraphs 77
and 82 and, so far is material, stated as follows:
“77. In the circumstances of this case the Tribunal found that a
very significant factor in the decision to dismiss the Claimant was the
erroneous belief that the Claimant had in fact refused to attend an anger
management course. Although the Claimant was reluctant to attend such a
course, he himself took the initiative in making enquiries about such a course,
in circumstances where the Respondent had failed to progress the matter. We
consider that a reasonable investigation ought to have alerted the Respondent
to the fact that the Claimant had not refused to attend such a course and had
in fact made his own enquiries of the Respondent about the matter.
78. The Tribunal further considered that a reasonable employer
would have analysed the accounts of 12 March 2010 more carefully. […]
79. The Tribunal considered that quite apart from the incident
of 12 March 2010 there was evidence that the Claimant was disliked by
some members of staff and we considered that a reasonable employer would have
been more alert to the possibility that the incidents had been exaggerated and
to the possibility that the Claimant had been provoked to react to the laughter
on the part of Elizabeth Ellis, in circumstances where he was aware that
his presence was unwelcome by other members of staff on the ward.
80. At its highest the Claimant’s alleged conduct was vocal,
apart from the allegation of knocking a diary out the way, which the Claimant
denied, and although we reminded ourselves that it is not our role to
reinvestigate the matter, we found that the Respondent had unreasonably
elevated a number of what we considered were unfortunate but relatively trivial
incidents, into something much more serious.
81. The Tribunal concluded that in the respects we have referred
to, the Respondent failed to act as a reasonable employer in dismissing the
Claimant. In any event we concluded that the sanction of dismissal for the
conduct alleged was outside the range of reasonable responses of a responsible
employer […]”
23.
Earlier in his Judgment, as we have said, at paragraphs 67 to 70
the Tribunal directed itself as to the law on unfair dismissal and no issue was
taken by Mr Cooper of that summary. In particular, we note that at
paragraph 68 of its Judgment the Tribunal directed itself as to the well‑known
decision of this Tribunal in British Home Stores Ltd v Burchell
[1980] ICR 301. It stated:
“The role of the Tribunal in a case of alleged unfair dismissal
on grounds of misconduct is to consider the process adopted by the Respondent
which led to the reason to dismiss the employee concerned and to determine
whether the Respondent acted as a reasonable employer in dismissing the
employee.”
24.
Furthermore, having referred to the Burchell case, the
Tribunal directed itself at paragraph 69 as follows:
“The Tribunal has to determine whether the Respondent employer
has shown that it held a genuine belief on reasonable grounds that the employee
concerned had been responsible for the conduct alleged and that at the time it
reached such belief it had carried out a reasonable investigation into the
matter. Further the sanction of dismissal must fall within the scope of
reasonable responses available to a reasonable employer and the range of
reasonable responses test applies to the whole process leading to the decision
to dismiss the Claimant. The Tribunal must remind itself that it is not its
role to consider what it might have done in the circumstances had it been the
Claimant’s employer at the material time.”
25.
Mr Cooper’s fundamental submission on this part of the case is
that, contrary to its self‑directions at the level of legal principle,
when it came to determining this particular case, the Employment Tribunal fell
into error by indeed substituting its own views for those of the Respondent.
In particular, he contends that the Employment Tribunal made findings of fact
for itself having considered the evidence only of the Claimant before it by way
of live evidence. He reminds this Tribunal of the decision of the Court of
Appeal in London Ambulance Service NHS Trust v Small
[2009] IRLR 563, in particular, the Judgment of Mummery LJ at
paragraphs 40 to 43 and also paragraph 37. In particular, he
emphasises at paragraphs 41 to 42, which read as follows:
“41. On the liability issue the ET ought to have confined its
consideration to facts relating to the Trust’s handling of Mr Small’s
dismissal: the genuineness of the Trust’s belief and the reasonableness of the
grounds of its belief about the conduct of Mr Small at the time of the
dismissal. Instead, the ET introduced its own findings of fact about the
conduct of Mr Small, including aspects of it that had been disputed at the
disciplinary hearing. For example, the ET found that the daughter, who did not
give evidence to the ET, had not told Mr Small that her mother was
hypertensive and diabetic. […]
42. The ET used its findings of fact to support its conclusion
that, at the time of dismissal, the Trust had no reasonable grounds for its
belief about Mr Small’s conduct and therefore no genuine belief about it.
By this process of reasoning the ET found that the dismissal was unfair. In my
judgement, this amounted to the ET substituting itself and its findings for the
Trust’s decision‑maker in relation to Mr Small’s dismissal.”
As Mummery LJ said at the beginning of paragraph 43, it
is all too easy, even for an experienced Employment Tribunal to slip into what
he called “the substitution mindset”.
26.
On behalf of the Respondent in the present case, Mr Cooper makes
two fundamental criticisms of the Employment Tribunal’s reasoning and a number
of subsidiary criticisms. The first of the mayor criticisms relates to
paragraphs 20 to 22 of the Tribunal’s Judgment. In that passage the
Tribunal said as follows:
“20. Following the Claimant’s transfer to Norbury Ward on
17 August 2009, we found that the Claimant was received with a degree
of resentment by existing members of staff on the ward. The Tribunal accepted
the Claimant’s evidence that staff had been informed that the Claimant had
interpersonal skills issues with staff on his previous ward and we found that
staff did not engage with the Claimant, as a new member of staff on the ward,
as constructively as they might have done.
21. The Tribunal, sitting as industrial jury, accepted that in
any workplace existing staff could well harbour initial misgivings about a new
member of staff. However, in the circumstances of this case we found that the
existing staff on the ward had been made aware of the previous history
regarding the Claimant although no disciplinary action had been taken against
the Claimant, and we considered that as a result staff on the ward distanced
themselves from the Claimant whose presence was unwelcome.
22. The Claimant was distressed by treatment he was receiving
from members of staff particularly from Victor Quashie, to whom the
Claimant was required to report when he joined the ward on
17 August 2009. The Tribunal was confirmed in its conclusion that
the arrival of the Claimant on the ward was not welcome and that he experienced
problems with staff by the fact that on 8 September 2009 the Claimant
filed an incident report [which is then quoted so far as material].”
27.
Mr Cooper submits that in that passage it is clear from a number of
references to the Tribunal’s own findings or acceptance of various matters that
it was accepting the Claimant’s evidence on various matters of fact, which in
fact were highly contentious and had been controversial at the disciplinary
hearing in this case. Furthermore, he points out, that the Tribunal did not
have the benefit of hearing from all of the relevant persons concerned by way
of live evidence. It had some statements of other members of staff but it only
had the live evidence of the present Appellant. More fundamentally, he
submits, that the Tribunal fell into error having regard to the London Ambulance
case because it failed to set out the facts in a balanced way as they were
before the Respondent employer but rather proceeded to criticise the Respondent
for not viewing things on the basis which the Tribunal itself had found as a
matter of fact. This then led to further error, submits Mr Cooper,
because, for example, they jumped from concluding that the employer was mistaken
to making the conclusion that the employer was acting unreasonably.
28.
This can best be seen from analysis of paragraphs 55 to 57 of the
Tribunal’s Judgment:
“55. We found that Mr Callaghan [that is the person who
chaired the disciplinary hearing] had adopted an approach which essentially
accepted the allegations that the Claimant had behaved aggressively on
12 March 2010 and that this was part of a continuing pattern of
behaviour. We considered that a reasonable investigation and hearing should
have considered the possibility that the Claimant himself might have been the victim
of some degree of hostility particularly in circumstances where the Claimant
himself before the incident of 12 March 2010 had raised a number of
concerns and grievances about his treatment on the ward. Clearly
Mr Callaghan had been influenced by the allegation involving the Claimant
and Patsy Baffour on 3 October 2009 which was not the subject of
any investigation and more particularly a matter to be considered at the
disciplinary hearing.
56. We found that Mr Callaghan failed to approach the
allegations involving the Claimant objectively and his approach lacked any
reasonable analysis of the allegations against the Claimant and the fact that
the allegations might well have been tainted by animosity towards the
Claimant. Mr Callaghan’s belief that the Claimant had refused to attend
an anger management course, which we found impacted to a very significant
extent on the process, was an erroneous belief. We further considered that Mr Callaghan
had not considered the possibility that witnesses might have exaggerated the
Claimant’s conduct.
57. A reasonable enquiry into the allegations ought to have
informed the disciplinary hearing that the Claimant, albeit reluctantly, had
made enquiries about an anger management course on at least two occasions and
that the reason why an anger management course had never been identified or put
in place for the Claimant was entirely a management failure. […]”
29.
Mr Cooper further submits in similar vein that at paragraphs 77
and 78 of its Judgment, the Tribunal then jumped from those findings of fact to
the unwarranted conclusion that the Respondent’s procedures had been
unreasonable and, therefore, unfair simply on the bases of its own findings of
fact, in particular, its conclusion that the belief held by Mr Callaghan
was “erroneous”. Even if that were right, submits Mr Cooper, it does not
follow that an erroneous belief is necessarily an unreasonable one. Although
the Tribunal paid lip service to the well‑known test in Burchell
in the passage that we have already quoted, when it came to applying the
principles to the facts of this case, submits Mr Cooper, they clearly fell
into error.
30.
We accept his submissions. We take the view that the Tribunal in this
case did indeed fall into the error identified by Mummery LJ in London
Ambulance and substitute its own findings for those of the Respondent
rather than asking itself the correct questions and applying the principles in Burchell.
For that reason it is unnecessary to rehearse in as much detail the other
criticisms that Mr Cooper has made of other aspects of the Tribunal’s
Judgment. Suffice to say that we accept the essence of his submissions.
31.
His second major criticism related to paragraph 40 and paragraph 79
of the Tribunal’s Judgment relating to the incident on
12 March 2010.
32.
His third example, which he accepted was not one of his major criticisms
but was nevertheless advanced both in writing and orally, relates to
paragraphs 51 and 52 of the Tribunal’s Judgment. This is set out in more
detail in the Respondent’s skeleton argument at paragraph 26C.
33.
His fourth example, which is developed in the skeleton argument at
paragraph 26B, relates to an email that he submits was not in fact before
the disciplinary hearing chaired by Mr Callaghan. He submits that when
one looks at the evidence that the Appellant himself was giving to that
disciplinary hearing on 17 December 2010, he himself was telling the
hearing, chaired by Mr Callaghan, that he had indeed refused to attend an
anger management course. An email informing the Tribunal that he had
subsequently been prepared to attend such a course was only available later and
was not evidence before the disciplinary hearing.
34.
Finally, Mr Cooper makes a separate criticism, not so much based on
the point that the Tribunal substituted its own findings of fact for those of
the Respondent, but rather on a distinct argument that there was a fundamental
breach of natural justice in this case. He submits that at paragraphs 44
to 45 the Tribunal had regard to an email from the Head of Human Resources,
Sally Dibben, on 2 September 2010. Furthermore, he submits that
the Tribunal drew the inference from that email that “the only motive must have
been to bolster the allegations against the Claimant as portraying him as
aggressive”. In fact, we have been informed Ms Dibben was not one of the
witnesses from whom the Tribunal heard evidence and nor, we are informed, was
this issue and potential criticism of Sally Dibben ever raised during the
Tribunal hearing. In those circumstances, submits Mr Cooper, there was a
fundamental breach of the duty to act fairly or, as it used to be called,
natural justice. We accept that submission also.
35.
Mr Brown, on behalf of the Respondent to the cross‑appeal,
submitted that it is clear that the Tribunal did direct itself correctly by
reference to the Burchell principles (see paragraphs 68 to
69 of the Judgment, which we have already quoted). He submitted also that the Burchell
questions inevitably entail that a Tribunal will have to engage in some analysis
of the facts. We accept that that, of course, is true but only to a point.
Analysis of the facts must not stray into what Mummery LJ described as
substitution of findings of fact for those of the Respondent employer. The
Employment Tribunal must confine itself to asking the question whether the
employer has shown that it held a genuine belief and whether that belief was a
reasonable one. That does not involve making findings of fact by the Tribunal
itself, still less substituting those findings for those of the Respondent.
36.
Furthermore, Mr Brown submitted, that it was clear by the nature of
the case that the Appellant was advancing before the Tribunal that he was
alleging that there was, in effect, a large‑scale conspiracy and that the
witnesses and others who had been involved in the Respondent’s disciplinary
processes were all biased. He submits that it would be unrealistic and
contrary to principle in those circumstances if the Tribunal was not able to
reject the evidence of those witnesses. We respectfully disagree that that is
what the Tribunal was doing in the present case. For example, at
paragraph 56 Mr Brown is entitled to observe that the Tribunal
concluded that Mr Callaghan was not objective and “his approach lacked any
reasonable analysis of the allegations against the Claimant”. However, as it
seems to us, that is the conclusion to which the Tribunal came. It is not the
starting point of the analysis as Mr Brown contends. As Mr Cooper
has submitted, the conclusion to which the Tribunal came itself is tainted by
the fundamental errors of approach which we have already identified in their
reasoning. In those circumstances we accept the essence of the Respondent’s
case on this cross‑appeal and reject the submissions, eloquently though
they have been put, by Mr Brown.
Conclusion
37.
For the reasons we have given the result is that the Appellant’s appeal
is dismissed in relation to the racial discrimination part of this case. The
Respondent’s cross‑appeal in relation to the unfair dismissal part of the
case is allowed. In consequence the unfair dismissal, and only the unfair
dismissal allegation, will be remitted to a differently constituted Employment
Tribunal to determine in accordance with the Judgment of this Appeal Tribunal.
