United Kingdom Employment Appeal Tribunal
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URL: http://www.bailii.org/uk/cases/UKEAT/2015/0126_15_1412.html
Cite as: [2015] UKEAT 0126_15_1412, [2015] UKEAT 126_15_1412
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EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
Before
MR M SMITH OBE JP
Transcript of Proceedings
JUDGMENT
APPEARANCES
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(of Counsel) Instructed by: Deen & Co Solicitors Imperial Offices 2 Heigham Road London E6 2JG |
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(of Counsel) Instructed by: Londonium Solicitors Units 14-15 First Floor 1-13 Adler Street London E1 1EG |
SUMMARY
VICTIMISATION DISCRIMINATION - Protected disclosure
Appeal on perversity dismissed. Appeal allowed on detriment in protected disclosure and Judgment of Employment Appeal Tribunal in Cordant Security Ltd v Singh UKEAT/ 0144/15/LA followed and applied. Case remitted to the same Employment Tribunal to reconsider detriment.
HIS HONOUR JUDGE HAND QC
1. This is an appeal by a registered charity, Apasenth Ltd. It provides assistance to vulnerable people in East London, and it was the Respondent employer in the hearing before the Employment Tribunal. We shall refer to it as “the Respondent” in this Judgment. The Claimant employee, Mrs Ayrun Nessa, whom we shall refer to as “the Claimant”, was employed by the charity working with such vulnerable people. By two sets of proceedings commenced in the autumn of 2013, she complained of harassment and of victimisation contrary to sections 26 and 27 of the Equality Act 2010 (“EqA”); also, of having suffered a detriment as a result of making a protected disclosure, of having been constructively dismissed by reason of making that protected disclosure, of unlawful deductions from pay and of failure to pay accrued holiday pay. At some point these two claims were consolidated and subsequently heard together at an eight-day hearing before an Employment Tribunal comprising Employment Judge Russell, Ms Conwell-Tillotson and Mr Wheeler sitting at East London Hearing Centre in November 2014.
2. The Employment Tribunal decided that the Claimant had made a protected disclosure in respect of which she had suffered detriment, namely her suspension, the making of false disciplinary allegations, the holding of a disciplinary investigation and delay in dealing with her grievance. It also held that she had been constructively dismissed by reason of the protected disclosure as a consequence of which her dismissal must be automatically unfair. She also succeeded in the unlawful deductions and holiday pay claims. She failed, however, in respect of her EqA claims.
3. Pursuant to Rule 50 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, a Restricted Reporting Order has been made by the Employment Tribunal in this case. By paragraph 101 of the Judgment and Written Reasons it was ordered that restriction should remain in force until promulgation of the Judgment and Reasons following the Remedy Hearing. It is therefore still in force today, and, other than to remind everybody of that fact, which we have done, we do not consider it necessary to make any additional Order pursuant to Rule 23 of the Employment Appeal Tribunal Rules 1993. Therefore, although we have not sought to disguise the names of any persons referred to in this Judgment, those names cannot be reported until the Employment Tribunal lifts the Restriction Order.
4. After a Preliminary Hearing at this Tribunal on 30 July 2015 before HHJ David Richardson it was ordered that this appeal should proceed to a Full Hearing on the following grounds. Ground 1 complains the Employment Tribunal reached a perverse conclusion on credibility. That is said to comprise the following:
(1) In accepting the Claimant’s evidence in relation to the protected disclosure the Employment Tribunal failed to take account of the fact that it had rejected her evidence in relation to sexual harassment, the inevitable consequence of which rejection must be that the Claimant had made false allegations and had lied both to her employer and to the Employment Tribunal.
(2) By paragraph 51 of the Judgment and Written Reasons in attempting to reconcile inconsistent findings on credibility with a finding that the Claimant “believes the truth of the allegations which she now makes”, the Employment Tribunal had failed to understand that in logic not only could this not explain that inconsistency but also was completely at odds with the determination that it had made in relation to the EqA complaints.
(3) In finding at paragraph 82 of the Judgment and Written Reasons that her reason for making the allegations of sexual harassment was “to show that the disciplinary case against her was not well founded and could be motivated by improper reasons” the Employment Tribunal failed to understand that it had reached a conclusion that was both illogical and unjustifiable.
(4) In rejecting the Claimant’s evidence that Mr Zafor and Mr Hasan had conspired against her the Employment Tribunal failed to understand that such a rejection rendered it inherently improbable that she would have accused Mr Zafor only to bolster her case against Mr Hasan and Mr Kabir, as the Employment Tribunal in effect had suggested at paragraph 82.
(5) In isolating these findings from the reality of the position, that the Claimant had engaged in a serious, sustained campaign of lies, maintained throughout the hearing, with the objective of securing a large sum, the Employment Tribunal failed to place the Claimant’s mendacity in the proper context of making decisions as to credibility about the significant events in the case.
5. Ground 2 asserts that the Tribunal had reached a perverse conclusion at paragraph 11 of the Judgment and Written Reasons by finding that the Claimant never received a memorandum about an incident in July 2012. This conclusion involved the Employment Tribunal in rejecting evidence about an email sent from the London Borough of Tower Hamlets to Mr Kabir on 6 August 2012 (see page 124 of the appeal bundle) and events surrounding that email, in particular whether there had been a discussion between the Claimant and Mr Kabir and whether the memorandum had been sent to the Claimant by Mr Kabir and a formal warning given to her by Mr Kabir.
6. Ground 3 asserts an error of law firstly by the Employment Tribunal concluding at paragraph 82 that the delay in communications about a grievance amounted to a detriment in the context of sexual harassment because the Employment Tribunal had found that the factual substance of that grievance was false and that being so no failure relating to it could amount to a detriment, which is a significant component of section 47B of the Employment Rights Act 1996 (“ERA”), subjecting an employee to a detriment because of a protected disclosure. Secondly, in concluding at paragraph 91 of the Judgment and Written Reasons that there was any causal link between the communication as to the grievance and the condom disclosure made on 2 July 2012.
7. In allowing ground 3, or rather this aspect of it, through to a Full Hearing HHJ David Richardson regarded it as being linked to ground 1. We are not entirely sure what he meant by that. It seems to us that ground 3, unlike the other two grounds, raises what might be described as a pure point of law, and that seems also to have been in his mind when he suggested that an unjustified grievance can still give rise to detriment and referred to the Court of Appeal’s Judgment in Deer v University of Oxford [2015] IRLR 481 but then posed the additional question (paragraph 20), “However, can this apply if the grievance is dishonest?” Perhaps the link that he had in mind was that the Employment Tribunal had made such an error of law because they failed to focus on the fundamental dishonesty of the Respondent’s position. If that is so, then we accept in that sense ground 3 may be linked to ground 1.
8. Mr Simon John of counsel has appeared on behalf of the Respondent as he did below. The Claimant has very recently changed solicitors, and Ms Esther Godwins appears on her behalf, instructed by her new solicitors. She did not appear below. In the best tradition of the Bar, although instructed very late, she has shown a good grasp of the material in this case and competence in dealing with it.
9. HHJ David Richardson, we think quite correctly, described the Reserved Judgment and Written Reasons of Employment Judge Russell’s Tribunal as being an impressively detailed set of Reasons (see paragraph 5 of his Judgment). Indeed, we would go further than did HHJ David Richardson. These Reasons were the product of two further days of discussion between the members in chambers after the hearing had ended, and the resulting 31 pages of Judgment and Written Reasons amount to a careful forensic analysis made after a lengthy hearing.
10. Despite this, Mr John submits that this Employment Tribunal has gone off the rails by failing to appreciate the real significance of what they have found and to apply what they have found uniformly to all issues in the case. What they had found, submitted Mr John, is that the Claimant was untruthful about the allegations of sexual harassment. In order to better understand that submission it is helpful to consider the findings made by the Employment Tribunal. These were summarised by HHJ David Richardson in a characteristically thorough fashion at paragraph 6 of his Judgment, but given that we are now at a Full Hearing we think it useful to set them out again and perhaps slightly more extensively. The findings were as follows:
(1) The evidence of the Claimant that she had not discussed personal issues such as her marital problems with colleagues was rejected (see paragraph 10).
(2) The Respondent’s evidence that there had been a discussion between Mr Kabir and the Respondent about the 6 August 2012 email from the London Borough of Tower Hamlets, the evidence of Mr Kabir that he had given her a verbal warning and his further evidence that she had received a formal written warning in a memorandum was all rejected by the Employment Tribunal (see paragraphs 14 and 15).
(3) The Respondent’s evidence that it had continuing concerns about the Claimant’s professional relationship with service users was inconsistent with her promotion to team leader in December 2012, and the evidence of continuing concerns was rejected (see paragraph 16).
(4) The Claimant’s evidence that she had had an appraisal with Mr Kabir in January 2013 was accepted and his denial of such a meeting rejected (see paragraph 17).
(5) The Respondent’s evidence that there should be no contact between a key-worker and a service user outside of working hours was rejected, and the Employment Tribunal found that the key-worker “may sometimes need to be contacted by a service user outside of working hours” (see paragraph 19).
(6) The Respondent’s evidence that the Claimant had been given a verbal warning on 14 June 2013 was rejected and her evidence on that issue preferred (see paragraph 21).
(7) The Respondent’s evidence that a memorandum had been sent to the Claimant on 20 June 2013 was rejected and her evidence that she had not received it preferred (see paragraph 22).
(8) When allegations made by a service user about alleged sexual abuse by a colleague of the Claimant on or about 22 June 2013 were investigated and the Claimant interviewed as part of that investigation, it was never suggested in the report that there had been any misconduct on the part of the Claimant (see paragraph 23).
(9) The Respondent’s evidence that before then, in May 2013, the same service user had telephoned the police and as a result the London Boroughs of Tower Hamlets and Redbridge had reported there was a safeguarding issue over a personal relationship between that user and the Claimant (see paragraph 24).
(10) The Respondent’s evidence that the Claimant had been instructed to stay until after Mr Kabir had interviewed the service user and that her failure to stay had been one of the reasons for her suspension on 2 July 2013 was rejected (see paragraphs 25 to 30).
(11) The Respondent’s evidence that it sent the Claimant documents pursuant to a request made by her under the provisions of the Data Protection Act was rejected (see paragraph 41).
(12) The Claimant’s denial that she had received a letter dated 15 November 2013 setting out the allegations against her was rejected (see paragraph 42).
(13) The Claimant’s evidence that she had complained about sexual harassment to colleagues on 20 June 2013 was rejected, and it was found by the Employment Tribunal that she did not complain until 12 August 2013 (see paragraph 48).
(14) The Employment Tribunal, however, accepted the Claimant’s evidence that she was embarrassed to discuss sexual harassment and genuinely believed she could not discuss or report it (see paragraph 49).
(15) The Employment Tribunal also regarded the complaints of several instances of sexual harassment relating to abuse of service users by employees made by the Claimant on 6 August 2013 to the London Borough of Tower Hamlets as being unsubstantiated (see paragraph 50).
(16) The Claimant’s evidence that she had not reported sexual harassment to her GP during four consultations that took place before she actually did report it on 2 September 2013 because she did not think it would remain confidential was rejected as incredible (see, also, paragraph 50).
(17) The Respondent’s evidence - that is to say, that of Mr Syed Zafor, the Respondent’s HR manager - was preferred to that of the Claimant, and her account of having been sexually assaulted and sexually harassed by him was rejected (see paragraphs 55, 56, 57, 61, 64, 66, 67 and 68; the whole of the rejection being summarised at paragraph 69).
11. The above findings that we have just referred to are largely findings of primary fact, but interspersed with these are a number of inferential conclusions, i.e. findings of secondary fact, relevant to credibility. These are:
(1) The Respondent’s service manager, Mr Habib Rahman Kabir, had given unreliable and incredible evidence about the email dated 6 August 2012 (see paragraphs 12 to 15).
(2) Mr Kabir was prepared to tailor his evidence to fit the Respondent’s case (see paragraphs 17 and 30) - likewise, the Respondent’s chief executive, Mr Mahmud Hasan influenced the evidence of Ms Akter either consciously or unconsciously (see paragraph 33).
(3) Both Mr Kabir and Mr Hasan had decided by the time the meeting on 12 August 2013 started that the Claimant would not return to work and must be dismissed or must resign (see paragraph 44).
(4) The emotion displayed by the Claimant whilst giving evidence was genuine and reflected the fact that she believed the truth of the allegations of sexual harassment that she was making during the hearing (see paragraph 51).
(5) In so far as the Claimant suggested that Mr Zafor was influenced by a friendship with Mr Hasan, the only evidence was that they had played badminton together in the past, and that did not establish any friendship (see, also, paragraph 51).
(6) On some of the issues relating to sexual harassment the Employment Tribunal accepted that some part of the factual matrix had occurred, e.g. Mr Zafor complimenting the Claimant on her dress, Mr Zafor and the Claimant being in the same part of the building at the same time, Mr Zafor asking the Claimant for a lift, Mr Zafor asking the Claimant to not to leave the committee and not to listen to others but to trust him, and Mr Zafor telephoning her (see paragraphs 54, 56, 58, 59, 66 and 68).
12. Mr John submitted in relation to that list of factual matters that the Employment Tribunal found had occurred that it was only in respect of the meeting in the committee room that the Employment Tribunal had found there was a misconstruction or misunderstanding on the part of the Claimant. His submission was that so far as the rest were concerned the Employment Tribunal reached a starker finding, namely that these simply did not constitute incidents of sexual harassment thus there was no question of misunderstanding on the part of the Claimant.
13. Ms Godwins on behalf of the Claimant submitted that all of these matters were open to the interpretation when the Judgment was read as a whole that the Claimant had not lied but had misconstrued otherwise innocent events.
14. On one matter - namely whether the Claimant had been working for another organisation - the Employment Tribunal felt that it could not reach any conclusion one way or the other (see paragraph 53). The Employment Tribunal specifically stated that it could not safely draw any inference about credibility generally from this issue and that it had not relied upon the matter in relation to its findings as to the allegations of sexual harassment.
15. Mr John submitted that the finding at paragraph 51, namely that the Claimant’s evident distress was genuine, and the acceptance at that point by the Employment Tribunal that she “believes the truth of the allegations which she now makes” was a finding that no reasonable Tribunal properly directing itself on the evidence could have arrived at. In his submission, the Employment Tribunal remark at paragraph 51 could not properly be confined to an observation about her demeanour at the Employment Tribunal. The first part of the sentence, “We considered that the Claimant’s evident distress was genuine and accept that she believes the truth of the allegations which she now makes”, undoubtedly must have applied to the emotional difficulties that the Claimant had at the hearing, but Mr John submitted that the second part of that sentence was broader in its horizon and that one interpretation that it might bear was it related to the whole of the history of her complaints of sexual harassment.
16. Ms Godwins submitted that the Employment Tribunal was not making a general finding as to the genuineness of the Claimant’s belief in that sentence at paragraph 51. She also pointed out that the Claimant was suffering from depression, but this is nowhere stated by the Employment Tribunal in its Judgment and Written Reasons to be the case or to be found as a fact. The reference made by the Employment Tribunal to visits to the general practitioner or the fact that the general practitioner records were available to the Employment Tribunal in reaching conclusions about when the Claimant had reported the matter to her general practitioner (see paragraph 50) is not a basis, in our judgment, for Ms Godwins’ submission that the Employment Tribunal has reached a conclusion that the Claimant’s state of mental health influenced the making of the allegations. In our view that simply goes beyond the scope of the findings made by the Employment Tribunal.
17. We agree with Mr John that the sentence at paragraph 51 presents the reader with an alternative meaning. Either it is a finding relating to the situation at the Employment Tribunal hearing or a more general finding relating to the history of sexual harassment and as such would be a contradiction of the conclusion reached that the allegations of sexual harassment had not been proved. We have come to the conclusion that a proper and fair reading of the Judgment of the Employment Tribunal is that it has the former meaning. We do not think that the Tribunal ever intended to suggest that the Claimant believed throughout in the veracity of all of the allegations of sexual harassment that she was making. As a conclusion relating to conduct at the Employment Tribunal that is a conclusion that a Tribunal at first instance could reach after observing a witness. It seems to us a matter of impression that a fact finding Tribunal can reach from having the advantage of hearing the oral evidence in a case.
18. What does it really amount to? In our view, it amounts to a finding that by the time the hearing came round the Claimant had convinced herself of the reality and accuracy of at least some of the allegations that she was making. As we have already mentioned, Mr John has pointed out that it is open to argument how far any misinterpretation or misconstruction on the part of the Claimant goes in this case. He submitted it can only really apply to the one particular meeting and that all the other incidents pointed to by the Employment Tribunal cannot be matters of misinterpretation or misconstruction but must be totally innocent happenings that as a matter of fact could never have involved sexual harassment.
19. Our view of this controversial sentence at paragraph 51 is that it amounts to a finding the Claimant had misconstrued at least one set of factual circumstances, and, possibly, bears the meaning that she misconstrued more than one set of innocent circumstances or remarks and by the time of the hearing she had convinced herself that the events could only be construed as sexual harassment or sexual assault. At the same time, however, it does not seem to us that the Employment Tribunal intended, by reaching that finding as to her state of mind at the hearing, to find what it must have concluded by its determination were the entirely false allegations of physical sexual assault and sexual harassment in the form of explicitly sexual remarks had in fact happened. The Employment Tribunal clearly concluded that the Claimant’s allegations in this context had not been proved. Indeed, it seems to us quite clear that they accepted the evidence of Mr Zafor and rejected the evidence of the Respondent on these matters.
20. Where does that take this case? Does that mean that the Tribunal was bound to conclude that the Claimant’s evidence on all other matters was unreliable? In our judgment, it does not. In particular, having regard to the fact that in rejecting the Claimant’s account of the primary facts relating to other matters, the Employment Tribunal gave a detailed and closely reasoned analysis as to why it preferred the Respondent’s evidence on these points. As HHJ David Richardson said several times in his Judgment at the Preliminary Hearing, there is nothing inherently unsound in a fact finding Tribunal reaching the conclusion that in respect of some matters a witness is telling the truth and giving accurate evidence and in respect of other matters that same witness is unreliable, incredible and untruthful.
21. We prefer the submission of Ms Godwins on this point. The Employment Tribunal approached this matter on an issue-by-issue basis, considering each issue on its merits and deciding by reference to the surrounding circumstances and other facts that bore upon the issue which account it regarded as the more probable. In our judgment, the Employment Tribunal cannot be criticised for that approach. We reject the submission made by Mr John that the only rational approach where a witness has constructed elaborate false allegations in relation to one matter is that same witness cannot be believed on any other matter.
22. Here, the Employment Tribunal must have been fully aware of the persistent nature of the allegations of sexual harassment and of the fact that they were enthusiastically pursued right up to the end of closing submissions by counsel acting on behalf of the Claimant. Indeed, Mr John has pointed to the closing submissions made by the then counsel for the Claimant in which the case was very enthusiastically put that Mr Zafor had been guilty of both physical and verbal sexual harassment. The Employment Tribunal in reaching the conclusion that the allegations of sexual harassment had not been proved must have rejected that contention. This is another reason why we cannot accept what Ms Godwins submits about the finding of the Employment Tribunal at paragraph 51. The Employment Tribunal, in our judgment, did not reach a conclusion in paragraph 51 that undermined or contradicted its fundamental conclusion.
23. Nor do we think it escaped the Employment Tribunal’s attention that a very significant claim for compensation in respect of sexual harassment was being made by the Respondent. We accept that it perhaps might have been better for the Employment Tribunal to deal with these aspects of the case explicitly and head-on, but what we have ultimately concluded is that Mr John is really asking us to reach conclusions about matters that the Employment Tribunal might have dealt with but appears to have chosen not to do so. We do not accept the proposition put forward by Mr John that if there are omissions, these were critical to the decision making process. Unless we can so conclude, it seems to us that we should not enter into this particular arena. We do not think that any of these matters can be regarded as a critical defect given the Employment Tribunal’s clear finding of rejection of sexual harassment. That is the most important of its conclusions. For those reasons, we cannot accept Mr John’s submissions in relation to paragraph 51 in the context of ground 1.
24. There is perhaps some more difficulty over the logic of the finding at paragraph 82 of the Judgment that the reason the Respondent raised allegations of sexual harassment for the first time on 12 August 2013 and not before was:
“82. … to show that the disciplinary case against her was not well founded and could be motivated by improper reasons. …”
25. We accept that taken literally as expressed it might be difficult to make much sense of this statement - it is perhaps an illustration of the fact that it is not always necessary in a fact finding exercise to attempt to supply motives for particular actions - but we think that it perhaps can be construed as an attempt by the Employment Tribunal to express the proposition, given the Respondent felt she was being wrongly and unscrupulously treated by the employer, that she felt that she must retaliate by making what were in essence unscrupulous allegations herself. On the other hand, putting that sort of gloss on the sentence might be as much a usurpation by this Tribunal of its function of scrutinising errors of law and not making decisions on fact as would reaching a conclusion that the Employment Tribunal should have made an entirely different decision because the Respondent had plainly constructed a false case against the employer on the question of sexual harassment. Unless we can conclude that these matters in ground 1 are more than complaints about weight and that the Employment Tribunal was bound to make a different decision in relation to the matter, the argument does not go anywhere near the high threshold needed to establish perversity. For that reason, ground 1 as a whole cannot succeed.
26. As to ground 2, Mr John submitted that given that there had been a concern expressed by the London Borough of Tower Hamlets, in an email dated as long ago as 6 August 2012, about whether the relationship between the Claimant and a service user crossed professional boundaries, there was an incontrovertible factual basis for the Respondent’s case that there had been longstanding concerns about the Respondent and her relationship with service users. His criticism of the Employment Tribunal was not that the Tribunal do not make any express finding about the genuineness of the email because he accepts that by inference they must have reached the conclusion it was genuine. Nor is he complaining that the Employment Tribunal did not appreciate the potential significance of the document; he accepts that in admitting it in evidence they conceded its relevance (see paragraph 14 of the Judgment).
27. Paragraph 14 is, however, a comment as to relevance in the context of whether or not a document should be admitted. What Mr John’s complains about is that the Employment Tribunal, in making a judgment about whether it was the Claimant or Mr Kabir who was telling the truth about the sequence of events in 2012, has failed not only to take account of the finding that the Claimant had made false allegations of sexual harassment but was not recognising that the email at page 124 provided firm factual evidence that this issue was being discussed at that time. At paragraph 15 the Employment Tribunal went on to discuss whether or not Mr Kabir had placed any reliance upon that document at the time or later.
28. The opening sentence of paragraph 15 reads:
“15. We considered that Mr Kabir’s evidence on this email was unreliable and not credible for a number of reasons. …”
29. The Tribunal, whilst accepting that the document was genuine, thought that it had been brought late to the case in order to establish the duration of an alleged concern about the Claimant’s professional relationship with a service user, when in reality the Respondent had not really been at all concerned about that at the time and subsequently had used it as a pretext for blaming the Respondent in respect of questionable conduct on the part of the service user and possibly other staff. Indeed, this was, in our judgment, the clear theme of the Employment Tribunal’s findings on protected disclosure.
30. We have reached the conclusion that although this was plainly a relevant document the Employment Tribunal was perfectly entitled on the evidence, having heard what Mr Kabir had to say about it and contrasted its late production with its absence from his witness statement or the pleadings, to conclude that it had been of no importance so far as the employer was concerned at the time and that it did not support the argument that there was a continuing and longstanding anxiety about the professional boundaries operated by the Respondent.
31. Mr John added to the email at page 124 pages 127 to 129 of the appeal bundle. Page 127 sets the chronological context, but the critical pages are pages 128 and 129, which purport to be a memorandum written by the Respondent and dated 10 August 2012. The difficulty with this material is that it was not before the Employment Tribunal. Unlike the email of 6 August, it has come to light after the hearing ended and found its way into the appeal and into this bundle by a not entirely pellucid process. HHJ David Richardson does refer to additional documents in his Judgment, and it seems likely that these pages may have been amongst them. It is necessary to consider this material in the context of paragraph 10 of the EAT Practice Direction 2013. Paragraph 10.1 establishes that the usual approach where new material is to be placed before this Tribunal is for it instead not to be considered here but to be referred to the Employment Tribunal through the reconsideration process.
32. Thus the general rule is this Tribunal does not look at fresh evidence, but on some occasions it must do, and paragraph 10.3 refers to the principle set out in the Court of Appeal’s decision in Ladd v Marshall [1954] 1 WLR 1489. It also refers to the overriding objective. The three principles are: firstly, that the evidence could not have been obtained with reasonable diligence for use at first instance; secondly, that it is relevant evidence and would have had an important influence on the hearing; and thirdly, that it is apparently credible. Mr John submits that this material passes those thresholds. The employer in this case has had difficulty with documents before, and Mr John submitted that we should be understanding about the limitations of electronic disclosure.
33. It does not seem to us, however, that whatever the difficulties of electronic disclosure, it can be said that reasonable diligence would have failed to uncover this material at the time or immediately before the Employment Tribunal hearing whilst it was being prepared for. We accept this appears to be credible material and that it is relevant. We are disposed to doubt that it would have had an important influence on the hearing. It does not in the body of the memorandum refer to either the alleged oral warning, the email of 6 August, or the memorandum and written warning. Of course, its main deficit is that the Respondent has not had an opportunity to deal with it, but it does not seem to us that she need be put to that difficulty. In our judgment, this is material that does not pass the Ladd tests, and it should not be admitted.
34. We turn to ground 3. Ms Godwins submits that the Employment Tribunal have concluded that the Respondent acted genuinely in raising a grievance. We have already found that her submissions about this cannot be accepted. She is left, however, with the fact that the Employment Tribunal to a greater or a lesser extent might have found that the Respondent had misinterpreted some of Mr Zafor’s innocent conduct as sexual harassment. If that were so, then that might make some sort of difference to the question of detriment. This, however, it must be recognised, is a relatively minor aspect of the detriment in relation to protected disclosure. A series of detriments is recognised by the Employment Tribunal in their Decision at paragraphs 83 to 91, the first of which is suspension, which, as we understand it, is accepted by the Respondent as capable of being a detriment. The false allegations of misconduct made by the Respondent against the Claimant are also said to amount to a detriment. The real question is whether the grievance about sexual harassment was not properly processed in terms of delay and inadequate communication. These matters are addressed at paragraphs 86 to 91.
35. Seen in the overall context of the case, this might be thought to be a relatively small matter. Nevertheless, it is a matter that we think might raise a point of law. The Employment Tribunal does not appear to have been at pains, in what is otherwise a very careful Judgment, to disentangle what might have been misconstrued from what must be a false allegation. After all, either the physical assaults took place or they did not. Either the unpleasant remarks laden with sexual innuendo and explicit sexual reference were made or they were not made. It seems to us that the Employment Tribunal must clearly have concluded that, on a balance of probabilities, they were not made and one problem with this part of the Judgment is that the Employment Tribunal has not sought in any way to differentiate one from the other. Some part of the grievance, in our judgment, must have been dishonest or false. That brings us to the question posed by HHJ David Richardson: can it be a detriment if the grievance is dishonest? Ms Godwins also in this context points to the fact that the Respondent was suffering from depression as being perhaps part of the detriment. We repeat: there is no evidence that the Employment Tribunal ever reached any such conclusion.
36. The issue of how false or dishonest allegations should be approached in the context of detriment was discussed by a division of this Tribunal in the case of Cordant Security Ltd v Singh UKEAT/0144/15/LA. That was a case about race discrimination. Mr Singh was a security guard working at a site in Bradford. One Friday he came onto the site and an allegation was made by a fellow employee to a supervisor that Mr Singh smelled of alcohol. The supervisor reported the matter, and Mr Singh was sent home. When he returned to the site, he was asked by the supervisor to make a statement about why he had been unfit for work on the Friday. His response was to hand over three letters, all containing the same written complaint. He alleged that on the Friday the supervisor had used racially abusive language towards him. The allegation of misconduct by Mr Singh was investigated. A disciplinary hearing was convened. At that disciplinary hearing Mr Singh repeated his allegation that the supervisor had used racially abusive language. The person conducting the disciplinary hearing indicated that no action would be taken until an official grievance had been lodged. In fact, the disciplinary allegation against Mr Singh about the alcohol was not upheld. Mr Singh complained of race discrimination and of harassment. He said that his treatment was less favourable because he had been subject to discipline and the supervisor against whom he had made a complaint - who, I should have said, was white - had not had that complaint put into a grievance or a disciplinary procedure.
37. The Employment Tribunal accepted that Mr Singh had been less favourably treated on the grounds of race. They did not at any stage explicitly refer to detriment. Ultimately, no compensation was awarded. One of the features of this case was that although Mr Singh was upset he told the Tribunal and the Tribunal found that he was upset about the fact that he had been accused of drinking alcohol and not about the racially abusive remarks. That may be a specific factual matter in the Singh case. The Tribunal made a declaration that he had been discriminated against but awarded no compensation on account of injury to feelings. They found that he had entirely invented the complaint and therefore merited no award of compensation.
38. The matter came on appeal by the employer to this Tribunal. This Tribunal reversed the Judgment of the Employment Tribunal on the basis that the employee had suffered no detriment, detriment being an inherent part of direct discrimination in the employment context because the case was being brought under section 39(2)(d) of the EqA 2010, namely that the discrimination consisted of him being treated detrimentally. In the course of the Judgment there is discussion at paragraph 22 of what Lord Hope had to say in the well known case of Shamoon v Chief Constable of Royal Ulster Constabulary [2003] UKHL 11 about the nature of detriment and likewise what Elias LJ said in Deer v University of Oxford [2015] IRLR 481 at paragraph 25 also about the nature of detriment. The Court of Appeal in Deer reached the conclusion that the mere fact that a grievance is bound to fail does not exclude the possibility of detriment (see paragraph 24 of Singh, which quotes paragraph 26 of the Judgment of Elias LJ in Deer). Paragraph 25 of the Judgment in Singh includes the finding that there could be no detriment on the facts of Mr Singh’s case. The Employment Appeal Tribunal said this:
“25. … The allegation was fabricated and if it had been investigated there would have been no substantive benefit to the Appellant as it would have been found to be untrue. The Tribunal expressly found that [Mr Singh] did not suffer any injury to feelings as a result of the failure to investigate the fabricated complaint. Any injury to feelings arose from other circumstances not the way in which his allegation of misconduct had been dealt with. In those circumstances, on the facts, this is one of the cases where [Mr Singh] did not suffer any sense of grievance or injustice as a result of less favourable treatment. …”
39. That factual conclusion was of itself enough to dispose of the case, and what follows at paragraph 26 may not in fact be ratio decidendi in the Judgment but may be obiter dictum. Nevertheless, it is of great importance to the submissions of this case, and we will quote it in full (paragraph 26):
“26. The question arises as to whether a person who has knowingly fabricated an entire complaint could ever have suffered a detriment by reason of a failure to investigate that complaint. We recognise that where an entire complaint is knowingly fabricated it may be difficult for a Claimant to establish that he or she has suffered a detriment because that complaint is not investigated. The Claimant will not have suffered any substantive disadvantage as a result of the failure to investigate as the complaint is untrue. The usual inference that a person who has been treated less favourably will have a sense of grievance or injustice may be rebutted if the entire complaint is knowingly fabricated and the complainant may be unable to establish that he has any, or any legitimate, sense of grievance. It is, however, necessary to bear in mind the range of circumstances in which complaints are made. They may range from a complaint which turns out to be unsubstantiated (although genuinely believed in), through those complaints that are exaggerated or partially true, to those which are entirely fabricated. Whether or not a person has a real sense of grievance or injustice arising out of less favourable treatment involving the failure to investigate a particular complaint is a matter for the Tribunal to decide having regard to all the circumstances of the case.”
40. It will not escape attention that on three separate occasions in that short paragraph Lewis J (giving the Judgment of the Employment Appeal Tribunal) uses the adjective “entire” and refers to “an entire complaint”. It seems to us that therefore he contemplated that there may be cases where some part of the complaint is fabricated and some part of it even though unsubstantiated is genuinely believed in. The last two sentences of paragraph 26, in effect, state that in explicit terms. It seems to us that this division of the Employment Appeal Tribunal contemplated that there would be a spectrum of cases in which in some circumstances an individual would suffer a detriment and in other cases might not. The position is complicated because this was a race discrimination case in which detriment and less favourable treatment might be regarded as different sides of the same coin. The present context is, however, as we have said earlier, section 47B of the ERA 1996. That provides that a worker has the right not to be subjected to any detriment by any act or any deliberate failure to act by his employer done on the ground that the worker has made a protected disclosure. In a sense, this is a less complex matter in relation to detriment than might be the case where there is less favourable treatment as a component of the statutory tort. An Employment Tribunal in this context is not faced with a situation where that which is less favourable is almost by definition going to give rise to detriment. A detriment has to be established in the context of section 47B and is unlikely to be inferred simply from the factual circumstances.
41. In this case, the Employment Tribunal has failed to analyse the matter in terms of what we have called the spectrum set out at paragraph 26 of the Judgment of a division of this Tribunal in the case of Singh. In our judgment, that amounts to an error of law on the part of the Employment Tribunal. What this Tribunal needs to do is to decide to what extent, if any, the Respondent can have suffered any detriment on account of not having had timeously investigated and not having had properly communicated the progress of that investigation in respect of allegations that were in fact unsubstantiated and some of which may have been entirely fabricated. The Tribunal needs to make a judgment about those matters. It is, however, a small part of what will be a very significant undertaking in terms of a Remedy Hearing. No doubt the matter can be addressed at the start of the Remedy Hearing, but we would remit the issue of whether or not the failure to deal timeously with or communicate about the grievance relating to sexual harassment did give rise to a real detriment suffered by the Respondent. That involves ascertaining where on the spectrum identified by the Employment Appeal Tribunal in Singh this aspect of this case falls.
42. Accordingly, the matter will be remitted to the Employment Tribunal on that issue; otherwise, the appeal will be dismissed.