Title: MR O KOKU v SOUTH LONDON & MAUDSLEY NHS FOUNDATION TRUST (Unfair Dismissal) [2013] UKEAT 0294_12_1503 (15 March 2013)
Author: Anne LAI
Last saved by: joe.ury
Company: Employment Tribunal Service

Appeal No. UKEAT/0294/12/LA

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

		At the Tribunal
		On 15 March 2013

Before
THE HONOURABLE MR JUSTICE SINGH
MRS M V MCARTHUR FCIPD
MS P TATLOW

MR O KOKU	APPELLANT

SOUTH LONDON & MAUDSLEY NHS FOUNDATION TRUST	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant

MR WINSTON BROWN
(Solicitor)
Brown & Co Solicitors
Athelney House
161-165 Greenwich High Road
London
SE10 8JA

For the Respondent

MR BEN COOPER
(of Counsel)
Instructed by:
Capsticks Solicitors LLP
1 St George’s Road
Wimbledon
London
SW19 4DR

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.

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UKEAT/0294/12/LA

UKEAT/0294/12/LA
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