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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Kibirango v Barclays Bank Plc & Ors (Race Discrimination : Direct) [2015] UKEAT 0234_14_2511 (25 November 2015)
URL: http://www.bailii.org/uk/cases/UKEAT/2015/0234_14_2511.html
Cite as: [2015] UKEAT 0234_14_2511, [2015] UKEAT 234_14_2511
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EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
Judgment handed down on 25 November 2015
Before
THE HONOURABLE MR JUSTICE KERR
(SITTING ALONE)
MR C W KIBIRANGO APPELLANT
1) BARCLAYS BANK PLC
2) MR A CLARK
3) MR S PERRY RESPONDENTS
Transcript of Proceedings
JUDGMENT
APPEARANCES
|
For the Appellant |
MR ANDREW ALLEN (of Counsel) Direct Public Access |
|
For the Respondent |
MS LUCINDA HARRIS (of Counsel) Instructed by: Barclays 1 Churchill Place London E14 5HP
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SUMMARY
RACE DISCRIMINATION - Direct
PRACTICE AND PROCEDURE - Appellate jurisdiction/reasons/Burns-Barke
The Decision of the Tribunal was inadequately reasoned and did not inform the Appellant properly why he had lost his case. The authorities do not support the proposition that it is sufficient for a Tribunal to state that it preferred the account of one witness to that of another, without saying why.
THE HONOURABLE MR JUSTICE KERR
1. This appeal has an unusual procedural history. It has been considered by four Judges of the Appeal Tribunal. As a result, the permitted grounds have been reduced to two: whether the Employment Tribunal gave inadequate reasons for preferring the evidence of the Second Respondent (“Mr Clark”) to that of the Appellant (“Mr Kibirango”), in two defined areas.
2. I will omit as much of the detail as I can. Mr Kibirango describes himself a black African. He is a computer software consultant and business data analyst. I shall refer to the First Respondent as “the bank”. The Third Respondent (“Mr Parry”) was Mr Clark’s line manager. They worked in the department of the bank dealing with “complaint information management”; specifically, the management of information about complaints of alleged mis-selling of payment protection insurance.
3. It is agreed that Mr Kibirango was one of a number of consultants who worked for the bank’s complaint information management operation in the latter part of 2012. Another was Mr Ursell, a white man, who had worked for the bank since the previous year. He was regarded as the most senior consultant, and reported directly to Mr Clark. Another, who joined at the same time as Mr Kibirango, was Mr Ali, who is black.
4. It is agreed that on 2 October 2012, Mr Kibirango’s appointment was summarily terminated by Mr Clark, about 11 weeks after Mr Kibirango had started work at the bank. The main issue in the subsequent Tribunal proceedings was whether Mr Kibirango’s race played any part in the treatment he received. The Respondents said it did not: the termination resulted from Mr Clark’s view that Mr Kibirango was performing poorly.
5. The Tribunal had before it emails in the latter part of September 2012 dealing with a missed deadline for production of a particular report. Mr Clark was off sick when the original deadline expired on 25 September 2012. When he returned from sickness absence on 27 September, the report had still not been finalised.
6. Mr Clark raised performance concerns with Mr Kibirango on 28 September 2012. Over the weekend of 29 and 30 September, Mr Kibirango, in turn, raised concerns about Mr Clark with Mr Parry, who referred him back to Mr Clark. Meetings then took place between Mr Kibirango and Mr Clark on 1 and 2 October 2012. The late report was still not finalised. Mr Clark discussed with his human resources department the possibility of replacing Mr Kibirango.
7. It is agreed that on 2 October 2012 at about 5pm, Mr Clark told Mr Kibirango his contract was at an end with immediate effect.
8. The Tribunal had before it an email sent just over an hour and a half later, at 18.42 on 2 October 2012. Mr Clark sent it to a human resources manager, Ms Halliwell, and to his line manager Mr Parry. It stated:
“I have terminated Charles’s contract with immediate effect from 17:00 today. It’s fair to say that he was not happy and got personal as a result which only leads me to believe I have absolutely made the right decision.
…
I will finalise the documentation around the events leading to this point and circulate accordingly.”
9. On 5 October 2012, he circulated a long email setting out “finalisation of the minutes leading to Charles’s exit from Barclays”. That email was also before the Tribunal. In it, Mr Clark set out his account of what had happened. That account was later accepted by the Tribunal. In it, Mr Clark stated that Mr Kibirango’s contract had been terminated because of concerns about his performance.
10. Mr Kibirango took some time to raise the issue of his race with the Respondents. In a long email of 25 October 2012 which was before the Tribunal, he complained to the bank in detail, giving his version of events. That account did not include any allegation of race discrimination. He said it had been a “humbling and humiliating experience”, and went on to say he did not know why his employment had been terminated.
11. In the same paragraph he asked many questions about why his contract had been terminated, including “why me and not the Ridgian staff who wrote the software in the first place …”. He concluded “please help me to find answers to my questions”. These questions were phrased in such a way as to express scepticism about whether his dismissal was justified on the objective merits, and about whether the reasons given for it were the genuine, true and full reasons.
12. The above is a neutral account, omitting disputed matters, of materials before the Tribunal about events leading to the termination. Thereafter, Mr Kibirango bought a claim for race discrimination and harassment. The Respondents applied to strike out the claims on the ground that Mr Kibirango was not an employee of, or a contract worker for, the bank. Alternatively, the Respondents sought a deposit order.
13. A pre-hearing review took place on 17 April 2013 before Employment Judge Cocks. She refused to strike out the claim, being “not satisfied that the claim has no reasonable prospect of success”. She considered that it had “little reasonable prospect of success” and therefore ordered Mr Kibirango to pay a deposit. He agreed that it should be the maximum of £1,000, and subsequently paid that sum.
14. The Judge gave Reasons for her conclusions. The Respondents then (for the purpose of this case only) abandoned their contention that Mr Kibirango was not an employee or contract worker. There was no appeal against either of Judge Cocks’ two Decisions. They stand.
15. On 21 May 2013, Mr Kibirango produced a Scott Schedule setting out 12 numbered allegations of alleged direct race discrimination. In each case the chosen comparator was Mr Ursell. The allegations covered the period from 25 September to 5 October 2012.
16. When the matter came on for hearing before the Tribunal, there were witness statements from Mr Kibirango, Mr Clark and Mr Parry. Ms Harris, who represented the Respondents before me and below, recalled that those witness statements were, in substance, adopted by the respective witnesses, without any material alterations. Mr Kibirango’s statement included (at paragraph 28) a passage saying that on being told he was being dismissed, he “pleaded with him [Mr Clark] and asked him not to make a rash decision, but he rejected my plea …”.
17. Mr Clark’s witness statement gave an account consistent with his email of 5 October 2012. It included (at paragraph 46) a passage saying that before the decision to terminate had been communicated, Mr Kibirango “stated that he found my behaviour ‘childish’”. In the next paragraph in the statement he said that, before communication of the termination decision, Mr Kibirango had said “I think that you are being argumentative Adrian because you just had a bereavement in your family”.
18. Pausing there, it was common ground that Mr Clark had just suffered a bereavement and that this was mentioned at some point during the meeting. Mr Kibirango, in his email of 25 October 2012 (mentioned above), stated that after being told his contract was terminated, he “advised him [Mr Clark] not to make a rushed decision on a day when he had just lost a relative …”.
19. In Mr Clark’s email of 5 October 2012, he stated, consistently with what he later said in his witness statement, that after Mr Kibirango had at one point walked out of the meeting and been asked to return, the latter:
“… stated that he found my behaviour “Childish”. I responded by saying that I found him to continue to divert the attention away from the issues I had raised with him since we first met the previous Friday. Charles then went on to say “I think that you are being argumentative Adrian because you just had a bereavement in your family”. Not only did I find this extremely unprofessional and inappropriate but I was personally upset that he had decided to use something from my personal life in a business conversation which, he had no right to do. I advised Charles that I wasn’t being argumentative I was simply stating facts …
At this point I advised Charles that I did not feel that things were working out for me as his line manager, or indeed for the team or Barlays, and I would not be asking him to return to the office tomorrow … I went onto say that I would be terminating his contract and that I would like him to clear his desk …”
20. There was therefore a conflict on the documents, before witness statements were exchanged, but which was apparently continued in the witness statements. The conflict was whether Mr Kibirango had referred to Mr Clark’s bereavement shortly before, or shortly after being told that he was being dismissed by Mr Clark.
21. Mr Kibirango represented himself at the hearing. Ms Harris represented the Respondents. She explained that in the course of questioning Mr Clark, Mr Kibirango put to Mr Clark that he, Mr Kibirango, had made the comment about the bereavement after, and not before being told his contract was to be terminated. Mr Clark had responded that that was incorrect and that the reference to a bereavement had been made before, and not after the termination decision was communicated to Mr Kibirango.
22. Two further matters need to be mentioned at this point. First, Mr Kibirango had made no mention, at that stage, of using the word “childish” attributed to him by Mr Clark. In a later document (to which I shall come) he either denied using that word or gave the appearance of denying using it. However, he accepted before the Tribunal, on being asked questions, that he had used that word.
23. The second matter is that it is not disputed that earlier in the meeting, at or near the start of it, an uncontroversial reference to the same bereavement had been made by Mr Kibirango. He expressed his condolences and Mr Clark thanked him for that. Nothing turns on this but I mention it as background and to avoid any confusion.
24. Ms Harris explained that at the hearing before the Tribunal, the dispute between Mr Kibirango and Mr Clark as to the timing of the second, controversial, reference to Mr Clark’s bereavement, and the timing of the use of the word “childish” (which, as I have said, he accepted having used) did not loom large or form a prominent part of the arguments.
25. In particular, Mr Kibirango did not refer Mr Clark to the email of 2 October 2012, sent at 18.42, and neither did the Tribunal. In that email, it will be recalled, Mr Clark had said: “[i]t’s fair to say that he was not happy and got personal as a result which only leads me to believe I have absolutely made the right decision”.
26. The Tribunal’s Written Decision was signed on 6 February 2014 and sent to the parties the next day. The Reasons followed, signed on 19 February and sent to the parties on 20 February 2014. The Tribunal comprised Employment Judge Kearsley, sitting with Mr R Owen and Mr J Bennett.
27. In its Written Reasons, the Tribunal set out its findings of fact. They referred (at paragraph 3.1) to the delayed report which had originally been due by 25 September 2012. They then (at paragraph 3.2) “set out the timeline of subsequent emails”. That was followed by an account of emails and email chains in the form of a bullet point timeline, spanning the period 25 to 28 September 2012.
28. There was then an account of evidence, to put it neutrally, of increasingly strained relations between Mr Kibirango on one side and, on the other side, Mr Clark and Mr Parry, continuing into the weekend on 29 and 30 September over the telephone. The Tribunal’s account of email exchanges then continued, covering (at paragraph 3.8 onwards) exchanges on Monday 1 October and Tuesday 2 October, and a parallel account of the meetings held that day between Mr Clark and Mr Kibirango.
29. The extensive citation of email exchanges excluded any reference to Mr Clark’s email sent at 18.42 on 2 October 2012. The Tribunal said they “accept as the most contemporaneous and accurate recollection the report prepared by Mr Clark on 5th October …”. They then proceeded to set out an account of what had happened at the meeting three days earlier, founded on the contents of that email.
30. That included (at paragraph 3.13) the point that Mr Kibirango had told Mr Clark he found the latter’s behaviour childish and had also made an inappropriate suggestion that a recent bereavement had influenced Mr Clark in his actions. The Tribunal went on to state that “[i]t was after those exchanges that Mr Clark advised the claimant that ‘things were not working out’” and that his engagement was to be terminated.”
31. After mentioning (at paragraph 3.17) Mr Kibirango’s long email of 25 October, and the absence of any mention of his race in that email, the Tribunal stated at paragraph 3.18 that Mr Ali, another black consultant, had had his contract extended. The suggestion hat this might have been done to draw a deliberate contrast with the Respondents’ treatment of Mr Kibirango was characterised as an argument which “does not bear examination because the claimant had made no reference to a discrimination claim at the point when Mr Ali’s contract was extended”.
32. Thus, the Tribunal dismissed Mr Kibirango’s suggestion that “the respondent must have been aware that he, as a black individual who was unhappy with his treatment would allege discrimination”. The Tribunal referred to that as a “striking example of the distorted perception which the claimant has when considering the motives of the respondent.”
33. After referring to the applicable law, the Tribunal stated its “conclusions”, starting at paragraph 14. It did so by reference to the numbered allegations 1-12 in the Scott Schedule, dealing with each (subject to one omission which is now immaterial: the findings in relation to allegation 3, it is now clear, also cover allegation 4).
34. Broadly, the findings were a rejection of Mr Kibirango’s interpretation of the events arising from the late report, and an acceptance of Mr Clark’s evidence (and that of Mr Parry) that the performance concerns about Mr Kibirango were genuine and nothing to do with his race.
35. On the issue as to the reason for the termination of Mr Kibirango’s employment, the Tribunal said this:
“24. The tribunal accept the [sic] Mr Clark did not enter the meeting on the 2nd October with the settled intention of terminating the claimant’s engagement, albeit he had taken advice that he was in a position so to do.
25. The tribunal accept as genuine the reasons which he gave in his summary to this tribunal, namely that the claimant had failed to provide information when requested, failed to provide deadlines when requested, was resistant to feedback, had approached Mr Parry without telling Mr Clark that he proposed to do so and, most significantly, had both called him childish and made an inappropriate reference to his recent bereavement whilst in the meeting.
26. Mr Clark was entitled to conclude that enough was enough. There is no evidence from which this tribunal could conclude that a hypothetical comparator would have been treated any differently. Mr Ursell was not a true comparator because he had not acted in the same way. Mr Clark acted with the approval of his superiors and was justified in so doing because he had made a professional judgment that the claimant could no longer be effectively managed and that conclusion was reinforced by the claimant’s unprofessional behaviour at the meeting itself. A hypothetical comparator who had acted in similar fashion would have had the engagement terminated.”
36. The Tribunal dismissed the claims, and went on to make an award of costs against Mr Kibirango of £15,000 (including the £1,000 deposit he had already paid).
37. Mr Kibirango, representing himself, appealed. Paragraphs 10 and 15(h) of his original grounds of appeal give the impression that he was denying having used the word “childish” and denying having made an “inappropriate reference” to the bereavement. However, one can also read those paragraphs as expressing his indignation at the contrast between the Tribunal’s treatment of his evidence and that of Mr Clark, in support of a (now immaterial) contention that the Tribunal was biased.
38. The appeal came before Her Honour Judge Eady QC on the papers. She did not have the Scott Schedule which, unhelpfully, was not quoted in the Tribunal’s Decision, nor annexed to it. She convened a Preliminary Hearing at which the Scott Schedule and Mr Kibirango’s witness statement could be produced. That Preliminary Hearing came before the President, Langstaff P, on 7 November 2014.
39. Langstaff P set out the background facts as found by the Tribunal, including the finding that Mr Clark’s account of the “childish” and “bereavement” remarks had been accepted. He stated (transcript paragraph 4) that the Claimant “denied it”, though it has since become clear that Mr Kibirango had accepted during the Tribunal hearing having used the word “childish” and that in his email of 25 October 2012, far from denying the “bereavement” remark, he had said he had “advised him [Mr Clark] not to make a rushed decision on a day when he had just lost a relative …”.
40. Langstaff P went onto consider the Tribunal’s Decision, describing it as “not a model of its kind” (paragraph 10). Later, in paragraph 16, he said this:
“16. The Judgment delivered on 19 February 2014 by the Tribunal (Mr Kearsley, Mr Owen, Mr Bennett) did not deal in those terms, extracting the essence of the case, as Judge Cocks had done and as I have tried to do, but dealt with the facts in something of a staccato fashion. It is, however, plain from looking at those facts that it preferred the evidence given by Mr Clark and Mr Parry to that given by the Claimant. What has troubled me about that is that at no stage did it say why it thought that Mr Clark should be preferred in the evidence he gave. There were hints as to why that might be. Thus the Tribunal took the view (see paragraph 3.18) that the Claimant’s perception of what had occurred was distorted. In my view, since in the way in which I have set out the essential issues of fact what was critical was the way in which Mr Clark approached the matter and what occurred at the meeting, which was a one-to-one meeting on October 2, it may be that an Appeal Tribunal would conclude that the Tribunal should have said more than it did.”
41. The learned President went on to dismiss a number of grounds of appeal that are no longer material. After doing so, he referred at paragraph 33 to a possible error of law in:
“… the failure of the tribunal to set out the reasons why it preferred the evidence of Mr Clark to that of the Claimant in respect of the incidents from 25 September to 2 October … I think that the tribunal should be required to explain, by way of a Burns/Barke order, what its reasons were for reaching its conclusion as to preferring Mr Clark’s evidence to that of the Claimant …”
42. In the President’s order made on 7 November 2014, he directed that “[t]his appeal be dismissed, save only for those issues which arise from and in respect of the following questions:
“… What the reasons were for preferring the evidence of Mr Clark instead of the claimant …
The Employment Tribunal is requested to give its answers … by reference to its Notice of Evidence …”
43. In answer to that request, the Employment Judge sent a letter dated 23 January 2015 which, so far as material, read as follows. The Judge set out the first question as worded in the President’s order. In answer, the Judge stated this:
“Question 1
The judges note records that under cross examination the claimant acknowledged that
(a) I told Mr Clark that his behaviour was childish
(b) I said to Mr Clark “you cannot make a decision when you have lost a member of your family”
The lay members recall the same exchange
It appears from paragraph 4 of the EAT transcript that at the appeal hearing the claimant denied making either remark and that that was a central dispute.
As this was no longer a disputed issue the tribunal felt under no obligation in its oral reasons to explain its conclusions other than to confirm that this exchange was recorded in the detailed note prepared by Mr Clark on 5 October 2013 [sic - 2012], 3 days after the meeting and that the tribunal had accepted that the note was accurate. Had the claimant persisted in a denial that he had made the comments alleged the tribunal would have explained how it had resolved the dispute. There was no dispute. Mr Clark gave evidence that it was at the point the claimant made his remarks that he concluded that he should terminate the engagement.
The tribunal does not feel it can go further, by reference to its own notes of evidence in providing an answer to the first question posed.
…”
44. A number of observations need to be made about that answer.
45. First, the Tribunal had available to it not just the President’s order but also the transcript of his Judgment; indeed they referred to paragraph 4 of it.
46. Secondly, the Tribunal plainly focused on the Claimant’s apparent denial of having said Mr Clark’s behaviour had been childish and of having made inappropriate reference to his recent bereavement. (I will refer hereafter to those remarks as the “personal remarks”.) That was what the President dealt with in paragraph 4, to which the Tribunal made express reference.
47. Thirdly, the Tribunal did not refer in its answer to paragraph 33 of the President’s Judgment. In that paragraph, the President referred to a possible error of law arising from “the failure of the Tribunal to set out the reasons why it preferred the evidence of Mr Clark to that of the claimant in respect of the incidents from 25 September to 2 October” [my emphasis].
48. Later in the same paragraph the President said the Tribunal should be asked to explain what its reasons were for reaching its conclusion as to preferring Mr Clark’s evidence to that of the Claimant. It was clear that the President intended the answers to deal with the incidents from 25 September to 2 October (though his subsequent order did not make express reference to those incidents).
49. Fourthly, the President had referred (in paragraph 5 of his Judgment) to the Tribunal having accepted Mr Clark’s evidence that the reasons for his decision to terminate Mr Kibirango’s employment included “most seriously [that] he had made inappropriate remarks (as set out above)”. That was a reference to the personal remarks and included the finding that they had preceded the dismissal and not been made after the dismissal.
50. As explained above, the issue as to the timing of the personal remarks was a live one before the Tribunal on the witness statements and in oral evidence. I shall refer to this issue as the “timing issue”. When answering the Burns/Barke questions, the Tribunal did not fully deal with the timing issue. The question was interpreted as referring only to the non-issue (before the Tribunal) as to whether the personal remarks had been made at all. As the Judge pointed out, it was common ground before the Tribunal that they had been.
51. In relation to the timing issue, the Tribunal’s only answer was: “Mr Clark gave evidence that it was at the point that the claimant made his remarks that he concluded that he should terminate the engagement”. That evidence was obviously accepted; it reflected the Tribunal’s finding of fact at paragraph 3.13 of its Decision that the personal remarks were made and that it was “after [my emphasis] those exchanges that Mr Clark advised the claimant that … his engagement was to be terminated”.
52. So the Tribunal, in its Burns/Barke answers, repeated its preference to Mr Clark’s evidence on the timing issue, but once again without saying why. The answers do not display any appreciation of the contradiction between that finding and Mr Kibirango’s contrary account (in his email of 25 October 2012) that Mr Clark “told me to go and clear my desk … and not to come back again. I advised him not to make a rushed decision on a day when he had just lost a relative, but he accused me of trying to divert his attention onto other matters”.
53. That, then, was the unhappy state of affairs when the matter came before Lewis J at a further Preliminary Hearing, to be followed immediately by the full appeal, if time permitted and permission were granted for that to take place. That hearing took place on 9 June 2015.
54. Lewis J had the benefit of Mr Kibirango’s critique of the Burns/Barke answers. It was set out in a letter of 6 February 2015 which included his contention (italics in original) that:
“[t]he point in dispute was whether these comments were said by me after being told that my engagement was to be terminated or whether they were said before this decision had been made - and therefore could have formed part of Mr Clark’s decision making process.”
55. Mr Kibirango then made reference to Mr Clark’s unmentioned email of 2 October 2012, which included the words “he was not happy and got personal as a result” [Mr Kibirango’s underlining]. He then pointed out that the Tribunal’s answers had attributed to him the words “you cannot make a decision when you have lost a member of your family” and, in effect, asked rhetorically what “decision” could be referred to if not the decision to dismiss.
56. Lewis J gave permission for the appeal to proceed on two points only. Unfortunately, time did not permit hearing of the full appeal the same day. At paragraph 16 of his Judgment, he identified that the ground of appeal “is that the tribunal has failed to give adequate reasons for accepting the evidence of Mr Clark in relation to allegations 2 to 11 in the Scott Schedule save for what was actually said in the meeting on 2 October”.
57. The grounds of appeal were subsequently set out in a document prepared by Mr Allen, who by then represented Mr Kibirango, in the following form subsequently approved by Lewis J:
(1) that the Tribunal did not give adequate reasons for preferring the evidence of Mr Clark instead of Mr Kibirango in relation to matters occurring from 25 September 2012 up to the meeting of 2 October 2012 and forming the subject matter of the claim;
(2) that the Tribunal has not given adequate reasons for preferring the evidence of Mr Clark in relation to the timing of when Mr Kibirango said that Mr Clark’s behaviour was childish and he should not take a decision because of his recent bereavement and, in particular, whether that was said before the decision to terminate (and so was capable, as the Tribunal found, of being a factor in the decision to dismiss) or after the decision to terminate.
58. So it falls to me to determine whether the Tribunal’s reasons, including those set out in its Burns/Barke answers, on those two aspects of its Decision are adequate or not.
59. Mr Allen submitted that they were not. He listed 12 points (lettered a to l) which, he said, were issues on which there was a conflict of evidence between Mr Kibirango and Mr Clark. These corresponded to allegations 2 to 11 in the Scott Schedule. However, I think that four of them (lettered h, i, k and l) are outside the scope of the exercise permitted by Lewis J in this appeal; for they go to what was said at the meeting on 2 October 2012, or what happened thereafter.
60. Mr Allen made the following main points:
(1) That the Tribunal on several occasions stated that there was “no evidence” of Mr Kibirango’s version of events, when in fact the Tribunal was rejecting, without explanation, evidence given by Mr Kibirango himself; most notably in paragraph 19 when rejecting evidence that the comparator, Mr Ursell, had committed an error; and in paragraph 20, rejecting Mr Kibirango’s claim that Mr Clark had acted to protect Mr Ursell.
(2) The Tribunal’s preference for Mr Clark’s evidence does not meet even the minimum standard set in English v Emery Reimbold & Strick Limited [2002] 1 WLR 2409, that “it may be enough to say that one witness was preferred to another because the one manifestly had a clearer recollection of the material facts or the other gave answers which demonstrated that his recollection could not be relied upon” (per Lord Phillips MR, Judgment of the court, at paragraph 19). Instead, the Tribunal merely dismissed Mr Kibirango’s evidence as “no evidence”.
(3) Even formulating the Tribunal’s reasons duty at its lowest, the reasoning is inadequate on the following issues (which correspond to the surviving lettered points in Mr Allen’s list):
(i) whether Mr Clark attempted to blame Mr Kibirango for the failure to meet the deadline of 25 September 2012
(ii) whether on 28 September 2012 Mr Kibirango was falsely accused of not taking necessary measures to ensure reports were correct;
(iii) whether on 28 September 2012 Mr Kibirango was blamed for poor quality data for which Mr Ursell was responsible;
(iv) whether on 28 September 2012 he was blamed for Mr Ursell’s failure to produce a software coding standards document;
(v) whether on 28 September 2012 he was falsely accused of not applying a quick fix alteration;
(vi) whether on 28 September 2012 his offer to produce a document by reverse engineering was inappropriately spurned; and
(vii) whether Mr Clark sent an email on 1 October 2012 containing false allegations about Mr Kibirango.
(4) Further, the adequacy of the Tribunal’s reasoning here did not meet the Tribunal’s obligation to set out not just its “basic factual conclusions” but also “a statement of the reasons which had lead them to reach the conclusion which they do on those basic facts” (Meek v City of Birmingham District Council [1987] IRLR 250 per Bingham LJ at paragraph 8).
(5) To the extent that the standard set in Meek is stricter than that referred to in English v Emery, the former should be used in the Tribunal jurisdiction: per His Honour Judge Hand QC at paragraph 63 in Greenwood v NWF Retail Limited [2011] ICR 896 (when considering the former Rule 30(6) of the then Employment Tribunals Rules of Procedure 2004).
(6) The present Rule 62 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 is no less demanding: see Rule 62(1), providing that the Tribunal “shall give reasons for its decision on any disputed issue”, which includes the duty under Rule 62(5) to state how the law has been applied to its findings of fact on the issues it has determined.
(7) It was insufficient simply to say that the Tribunal accepted Mr Clark’s email of 5 October 2012 as “the most contemporaneous and accurate recollection” of the earlier events. Quite apart from the point that it was not the most contemporaneous account of those events (the email sent at 18:42 on 2 October was closer in time to the meeting earlier that afternoon and included probative words), to state that the email is accurate is merely to repeat the preference for Mr Clark’s account contained in it, and does not say why that account is preferred.
(8) As regards to the timing issue, the same inadequacy of reasoning is found both in the Decision and the subsequent Burns/Barke answers. The Tribunal said nothing about evidence tending to contradict Mr Clark’s account, contained in Mr Kibirango’s witness statement, put to Mr Clark in cross examination, arguably supported by the words “got personal as a result” in the email of 2 October 2012 which the Tribunal overlooked, and supported also by the Tribunal’s own note of evidence referred to in its Burns/Barke answer where it attributed to Mr Kibirango the words “you cannot make a decision [my emphasis] when you have lost a member of your family”. The Tribunal does not explain what decision that could have referred to other than one to dismiss.
(9) Mr Allen accepted that the Tribunal could properly have found against Mr Kibirango on the timing issue; the point could have gone either way but the Tribunal provided inadequate reasons for its conclusion on the timing issue, which it merely restated without comment in its Burns/Barke answers.
(10) Nor could it be said that the point was unimportant: the Tribunal had described the making of the personal remarks as the most significant factor in Mr Clark’s decision to dismiss: see paragraph 25 of the Decision. It went on to reason that Mr Clark “was entitled to conclude that enough was enough” (paragraph 26). It was that conclusion, informed by the earlier conclusion on the timing issue, which destroyed, in the Tribunal’s view, the validity of the comparison between the treatment of Mr Kibirango and that of Mr Ursell. The Tribunal also decided that a “hypothetical comparator who had acted in similar fashion would have had the engagement terminated” (paragraph 26).
61. For the Respondents Ms Harris made the following main submissions:
(1) She reminded me that the President had ruled out any appeal on the basis that the Tribunal had failed to make adequate findings of fact in relation to the matters set out in the Scott Schedule. The only issue was whether its reasons for those findings of fact were adequate.
(2) The formulation of the “reasons” duty in Meek, at paragraph 8, does not specifically address the extent of any obligation to say why one witness’ account is preferred to another’s.
(3) Where the issue is a straightforward conflict of fact between two witness of fact, as distinct from a difference of opinion between two experts, and resolution of the issue “depends simply on which witness is telling the truth about events which he claims to recall, it is likely to be enough for the judge (having, no doubt, summarised the evidence) to indicate simply that he believed X rather than Y; indeed there may be nothing else to say”; per Henry LJ (giving the judgment of the court in Flannery v Halifax Estate Agents Limited [2000] 1 WLR 377, at 382A-B). Flannery was referred to without disapproval in English v Emery (at paragraphs 6 and 7 of the judgment of the court).
(4) The remarks of Judge Hand QC in Greenwood at paragraph 63 were obiter and put an unwarranted gloss on the Tribunal’s obligation to give reasons. The context of the case was the duty under the then Rules to give a decision in a structured form. The ratio of the case was that failure to follow the ordained structure to the letter was not fatal provided there was substantial compliance with the obligation relating to structure. As I understood her submission, Ms Harris was saying that although the appeal was allowed on the basis of inadequacy of reasons, the Judge’s remarks at paragraph 63 formed part of the discussion of the law and was not essential to the conclusion that the reasons were inadequate on the facts.
(5) In the present case, the Tribunal said enough in its Reasons at paragraph 3.12 and 3.13, by stating that it accepted that “as the most contemporaneous and accurate recollection” the facts sent out in Mr Clark’s email dated of 5 October 2012. The Tribunal also went further and referred at paragraph 3.17 to the absence of any reference to race in Mr Kibirango’s email of 25 October, which was less contemporaneous than was Mr Clark’s 5 October email.
(6) As to the earlier events, it was sufficient for the Tribunal to set out what Mr Clark’s performance concerns were in relation to Mr Kibirango, to note the absence of any evidence that they were related to his race, and to state (as the Tribunal did) that it accepted the genuineness of the concerns about his performance.
(7) In short, this was a straightforward case in which the claim lacked any merit, for want of any evidential basis for the contention that Mr Kibirango’s dismissal was related to his race, or any basis for an inference to that effect to be drawn. The comparison with Mr Ursell was misconceived because there were no similar performance concerns about him. The reasons were “Meek compliant”.
(8) Alternatively, Ms Harris relied on the proposition in her skeleton argument that “in any event, the decision is obviously right”. In oral argument she clarified that this was a case, in her submission, where if there was a legal error by the Employment Tribunal there was no need to send the case back because “the error cannot have effected the result” and was therefore “immaterial and the result as lawful as if it had not been made” (per Laws LJ at paragraph 21(a) in Jafri v Lincoln College [2014] ICR 920).
62. I now come to my reasoning and conclusions in what is left of this appeal.
63. I start by reminding myself that one should not expect a Tribunal’s Reasons to be a model of legal draftmanship. The words should not be subjected to detailed legal analysis on appeal. The Appeal Tribunal must be slow to criticise the manner in which a Tribunal expresses itself, and may not itself find any facts or substitute its view of what findings of fact should have been.
64. In short, the Appeal Tribunal is confined to examining whether the decision below was lawfully made. In the present context the essential point is, as Ms Harris submitted, that Mr Kibirango is entitled to know why he has lost. Provided the Tribunal’s Reasons enable him to understand that, the reasons are sufficient.
65. That does not mean, however, that a Tribunal can fulfil its obligation to give adequate reasons for a finding of fact by saying it preferred the evidence of one witness over another on that issue, without saying any more than that. Henry LJ’s judgment in Flannery is not authority for that proposition. He went on to say at 382C-D:
“… This is not to suggest that there is one rule for cases concerning the witnesses’ truthfulness or recall of events, and another for cases where the issue depends on reasoning or analysis (with experts or otherwise). The rule is the same: the judge must explain why he has reached his decision. The question is always, what is required of the judge to do so; and that will differ from case to case. Transparency should be the watchword.”
66. In Anya v University of Oxford [2001] ICR 847 CA, Sedley LJ said this at paragraphs 24 and 25, referring to the decision in Meek:
“… to the effect that tribunals are not required to do more than make findings of fact and answer a question of law. In the race relations field this principle does no more than beg the questions: what findings, what law? It is elsewhere, above all in King v Great Britain-China Centre [1992] ICR 516, that the answers lie. In Tchoula v Netto Foodstores Ltd (unreported) 6 March 1998 Morison J in the Employment Appeal Tribunal spelt out what this means in practice:
“A bald statement saying that X’s evidence was preferred to Y’s is, we think, both implausible and unreasoned and therefore unacceptable; and it might appear to have been included simply to try and prevent any appeal. It seems to us likely that there will be a great deal of background material which is non-controversial. There is no need to recite at length in the decision the evidence which has been received. What a tribunal should do is state their findings of fact in a sensible order (often chronological), indicating in relation to any significant finding the nature of the conflicting evidence and the reason why one version has been preferred to another. It is always unacceptable for a tribunal to assert its conclusion in a decision without giving reasons.”
25. To assert this is not to demand, as Mr Underhill sought to suggest it did, an infinite combing by the industrial tribunal through endless asserted facts or an over-nice appraisal of them. It is simply that it is the job of the tribunal of first instance not simply to set out the relevant evidential issues, as this industrial tribunal conscientiously and lucidly did, but to follow them through to a reasoned conclusion except to the extent that they become otiose; and if they do become otiose, the tribunal needs to say why. But the single finding of the industrial tribunal in this case on Dr Roberts’s honesty as a witness, while important, does not make the other issues otiose: on the contrary, it begs all the questions they pose. …”
67. With that in mind, the first issue in this appeal is whether the Tribunal gave adequate reasons for its findings of fact in relations to events from 25 September up to (but not including) the meeting on 2 October 2012. The second issue is whether the Tribunal gave adequate reasons for its finding in relation to the timing issue, that is to say, the finding that the personal remarks were made before and not after the dismissal.
68. In allegation 2, Mr Kibirango said Mr Clark had unjustly blamed him for the failure to meet the deadline of 25 September 2012 set for the report mentioned above. Mr Kibirango’s case was set out in detail in paragraph 12 of his witness statement. He said that, while he had been brought in only on 25 September, the deadline day itself, others had been misled into believing that the missed deadline was his fault, while in truth the blame lay with Mr Ursell; who, however, was protected by manipulation of the email trail, done by Mr Parry, the Third Respondent.
69. The Tribunal dealt with that allegation at paragraph 18 stating that it was “factually incorrect. The Claimant was not blamed for failure to meet the 25 September deadline. He was not requested to engage in the process until that date”. On its face, that reasoning does not address the Claimant’s point that others were mislead into believing that he had been at fault earlier in the process, at a time when he was not involved but others wrongly thought he was.
70. However, the paucity of reasoning, while regrettable, is not material because in allegation 1, the Tribunal had rejected (with adequate reasons) the case that Mr Parry had manipulated the email trail. So the Tribunal’s treatment of allegation 2 does not provide a basis for disturbing its decision.
71. In allegation 3, Mr Kibirango asserted that he had been falsely accused of not taking the necessary measures to ensure that the reports under production at the time were correctly prepared. His case was that Mr Ursell, and not he, was responsible for errors contained in a draft report he produced on 28 September 2012; yet the errors were laid at his door and Mr Ursell, who is white, was shielded from blame for them.
72. In paragraphs 12 and 13 of his witness statement, Mr Kibirango had made that case in some detail. His written evidence was that he had been referred to Mr Ursell as a person with the expertise necessary to provide certain statistics (referred to as the “MI requirement”, MI denoting management information) for inclusion in the relevant report. His case was that Mr Ursell referred him to certain data, for which he, Mr Ursell was responsible, and which turned out to be faulty. This led to the inclusion of a caveat in the draft report. All this happened before 28 September 2012, according to Mr Kibirango’s written evidence.
73. When on 28 September Mr Clark (working from home after returning from sick leave the previous day) had email and telephone contact with Mr Kibirango, Mr Clark blamed Mr Kibirango, according to the latter (see paragraphs 14-16 of his witness statement) for the defects which he, Mr Kibirango, laid at Mr Ursell’s door (see paragraph 17). His account in his witness statement of this episode is detailed.
74. The Tribunal addresses allegation 3 at paragraph 19 of its Decision as follows:
“19. This is not factually correct. The claimant did submit a draft report which contained errors identified by Mr Fabrizio. The tribunal has no evidence that Mr Ursell committed a similar error. Mr Ursell was working with poor data that he had not been responsible for producing.”
75. This is wholly inadequate reasoning. The Tribunal had detailed evidence from Mr Kibirango that Mr Ursell was responsible for errors for which Mr Clark held Mr Kibirango responsible. The Tribunal, in its cursory exoneration of Mr Ursell, wholly failed to address the contrary case advanced by Mr Kibirango and, despite the detailed passages in his witness statement I have just mentioned, said it had “no evidence” that Mr Ursell had committed an error similar to Mr Kibirango’s.
76. The inadequacy in the Tribunal’s reasoning when dealing with allegation 3 is material. It is not cured by the fact that the Tribunal had previously set out the timeline of emails leading up to the conversations between Mr Kibirango and Mr Clark on 28 September.
77. The same inadequacy of reasoning afflicts allegation 4, which (as the Tribunal clarified after issuing its original Decision), is covered by the same reasoning as allegation 3 (though due to a typing error reference to allegation 4 was omitted from the original Decision). Allegation 4 is, indeed, very similar to allegation 3 and covers the same factual ground.
78. Allegation 5 related to a document referred to as the “software coding standards document”. Mr Kibirango’s case was that he was blamed by Mr Clark on 28 September 2012 for “not having applied Mr Ursell’s coding standards over the previous week” (paragraph 16 of his witness statement). Earlier in the same paragraph, Mr Kibirango gave evidence that a week previously, Mr Clark had asked Mr Ursell to provide the team, including Mr Kibirango with:
“written documentation of the coding standards that we needed to apply to our software before it could be copied into the Live environment to automate the MI reporting. Mr Ursell did not produce the standards document that was required of him, and I had to remind him about it during a team meeting hosted by Mr Clark that morning, Friday 28th September.”
79. The Tribunal’s Decision addresses this allegation compendiously, together with allegations 6 and 7. Allegation 6 was that on the same day, 28 September 2012, Mr Clark accused Mr Kibirango of not applying a “quick fix alteration” to a report called the MI statistics report. His case was that he had in fact performed that task as requested, but Mr Clark falsely reported to higher management that he had not performed the task, in order to protect Mr Ursell who was the author of the “quick fix alteration”, which Mr Clark knew to be in a poor state.
80. Mr Kibirango, in his witness statement, addressed this in paragraphs 18(e) and 19. His evidence included the contention that Mr Clark complained that he had not applied the quick fix alteration, and attempted to prevent him from scrutinising the faulty source data provided by Mr Ursell which, Mr Kibirango alleged, was the reason why the quick fix alteration was not effective. Mr Kibirango said in his witness statement that he relied on this as less favourable treatment than was meted out to his white colleague Mr Ursell, on the ground of Mr Kibirango’s race.
81. Allegation 7 related to an alleged offer from Mr Kibirango to produce a required document by “reverse engineering” from certain software. He said that the need to do so by that method was a consequence of an earlier failure on the part either of the original developer of the software (who had left) or Mr Ursell, the developer’s team leader, to produce the document. Mr Kibirango’s case was that Mr Clark complained that the offer had been made, and inappropriately spurned it.
82. This point was fully covered in paragraph 20 of Mr Kibirango’s witness statement. In that paragraph, he went on to explain that instead of gratitude for his goodwill gesture, he received a rebuke and subsequent complaint; whereas no such unwarranted complaint was ever made about the work of Mr Ursell, his white comparator.
83. The Tribunal dealt with allegations 5, 6 and 7 at paragraph 20 of its Decision. It said that:
“20. The tribunal accept that the concerns expressed by Mr Clark on 28th September, 1st October and 2nd October, were genuine concerns based on his professional assessment of the work created by the claimant. He was entitled to voice those concerns. There is no evidence to support the claimant’s assertion that he acted this way to protect Mr Ursell or that he had any similar concerns regarding Mr Ursell’s work. There is no evidence from which the tribunal could conclude that Mr Clark was influenced in his actions by the claimant’s race.”
84. The difficulty with that reasoning is that it nowhere addresses the contention of Mr Kibirango that Mr Ursell’s work was worthy of criticism but was not met with criticism; that Mr Kibirango’s work was met with criticism for faults that, objectively, were Mr Ursell’s; and that, there being no race neutral explanation for that differential treatment, the Tribunal was bound to decide that direct discrimination on the ground of race had occurred (see section 136 of the 2010 Act).
85. The Tribunal’s statement that there is “no evidence” to support Mr Kibirango’s assertion that Mr Clark acted in such a way as to protect Mr Ursell, must mean that Mr Kibirango’s evidence on that very issue was rejected. But the Tribunal did not say why it was rejected, apart from stating (i) that it accepted Mr Clark’s concerns about Mr Kibirango’s performance were genuine and (ii) that it accepted Mr Clark had no similar concerns about Mr Ursell’s work.
86. The Tribunal needed to tell Mr Kibirango, to make him understand why he had lost, why it rejected his objective criticism of Mr Ursell’s work. It also had to examine whether the professed genuineness of Mr Clark’s concerns about Mr Kibirango’s performance had any objective foundation. If it did not, an inference of race-related less favourable treatment would arise.
87. The Tribunal did neither of these things. That inadequacy of reasoning was material. Mr Allen is therefore right to submit that the findings of fact in relation to allegations 5, 6 and 7 are not supported by adequate reasons.
88. In allegation 8, Mr Kibirango asserted that on 1 October 2012 Mr Clark sent an email to Ms Halliwell and Mr Parry, recording allegations of poor performance by Mr Kibirango that were false and deflected attention from the failings of Mr Ursell. The email was in fact addressed to Mr Kibirango himself but was copied to Mr Parry and Ms Halliwell.
89. Mr Kibirango dealt with that email at paragraph 25 of his witness statement. He said that it contained misstatements that were intended to discredit him, to get rid of him. He added that no such “malign reports” were made about Mr Ursell, even though Mr Clark knew him to be responsible for flawed data. In paragraph 25, Mr Kibirango asserted that the sending of the email constituted less favourable treatment than given to his white colleague Mr Ursell, in breach of section 13(1) of the 2012 Act.
90. At paragraph 3.9 of its Decision, the Tribunal recounted the meeting earlier on 1 October 2012 at which Mr Clark raised concerns similar to those subsequently set out his email sent later that day. The Tribunal went on at 3.10 to recount the sending of the email. Later, in paragraph 21, it dealt with allegation eight in the following way:
“The email setting out the concerns did not contain false concerns for the reasons identified above. Mr Clark was entitled to share those concerns with his superiors. He was not influence [sic] by the claimant’s race.”
91. The “reasons identified above” are mainly those I have already identified as inadequate to meet the Tribunal’s obligation. The Tribunal was repeating its acceptance of Mr Clark’s evidence that he genuinely believed his performance concerns about Mr Kibirango were well founded. The Tribunal did not address Mr Kibirango’s contrary evidence nor did say why it accepted that Mr Clark’s concerns were well founded. The error was material.
92. Thus, in relation to the events from 25 September to 2 October 2012, up to (but not including) the meeting that day, the Tribunal failed to state its reasons for rejecting the case advanced by Mr Kibirango, which put bluntly was to the effect that Mr Clark scapegoated the black man for the faults of the white man and protected the white man by scapegoating the black man. It was not sufficient to dismiss his case by reference to his “distorted perception”.
93. That brings me to the treatment by the Tribunal of the timing issue in relation to the making of the personal remarks. I have set out above the parties’ respective cases in relation to that issue, and the evidence that was available to the Tribunal for and against the proposition that the personal remarks were made before or, as the case may be, after the decision to dismiss had been communicated by Mr Clark to Mr Kibirango.
94. I have already quoted in full, above, paragraphs 25 and 26 of the Tribunal’s Decision where it addressed the allegation of direct discrimination, which was rightly described as “the principal allegation of direct discrimination” (at paragraph 23). Were the Tribunal’s reasons adequate on this issue?
95. In my judgment they were not, for the following reasons.
96. First, the context in which they approached the timing issue was a deficient paucity of reasons to support the prior findings about events leading up to the 2 October 2012 meeting. The Tribunal’s statement that it accepted Mr Clark’s account set out in his long email of 5 October 2012, is not an answer to that deficiency.
97. The description of that email as “the most contemporaneous” account did at least say something about its quality, though the description was not accurate in view of the earlier email of 2 October 2012 which went unmentioned. The description of the 5 October email’s contents as “the most … accurate recollection” of what occurred at the meeting, including in relation to the timing issue, is, as Mr Allen rightly submits, tautologous in that it merely reiterates the statement that Mr Clark’s account is accepted, without saying why.
98. The Tribunal’s Burns/Barke answer does not directly address the timing issue; indeed it fails to recognise that the timing issue even arose. The only statement made by the Tribunal in its Burns/Barke answer on the timing issue was to say in the last sentence that Mr Clark “gave evidence that it was at the point the claimant made his remarks that he concluded that he should terminate the engagement”. That is a reiteration of what Mr Clark’s evidence was on the timing issue, coupled with (implicitly, though not explicitly) acceptance of that evidence, but again without saying why it was accepted.
99. In its Burns/Barke answers, therefore, the Tribunal was either unaware that the timing issue arose and was significant or, if aware that it arose and was significant, failed to deal with it properly.
100. Indeed, again as Mr Allen submitted (echoing Mr Kibirango’s letter of 6 February 2015), the attribution to him of the words “you cannot make a decision when you have lost a member of your family”, coupled with implicit acceptance that those words were said before and not after the dismissal, leave unclear “what decision” the Tribunal thought was being referred to by Mr Kibirango.
101. Nor, either in its main Decision or in its Burns/Barke answer, did the Tribunal address the point that Mr Clark’s email of 2 October 2012 had stated that Mr Kibirango “got personal as a result”, that is to say as a result of hearing that his contract had been terminated.
102. I am not saying that the Tribunal was obliged to mention that email. It could have given adequate reasons for its preference for Mr Clark’s account on the timing issue without referring to it. However, I would have expected most Tribunals to have referred to it and, indeed, to have asked Mr Clark about it during his oral evidence given that Mr Kibirango was unrepresented and Ms Harris, understandably, did not ask Mr Clark about it.
103. The omission to mention it is surprising because it was more contemporaneous than the later email of 5 October described by the Tribunal as the “most contemporaneous” account of the meeting in which the personal remarks were made, giving rise to the timing issue. The Tribunal’s omission to mention that email is a factor that I weigh in the scales which contributes to (but does not itself entail) the conclusion that the reasons support the Tribunal’s finding on the timing issue was inadequate.
104. It remains to consider the significance of the Tribunal’s finding on the timing issue. In my judgment, it was of major importance because the Tribunal at paragraph 25 of its Decision had identified the making of the personal remarks as the most significant reason for the termination of Mr Kibirango’s contract. The Tribunal’s preference for Mr Clark’s account informed its conclusion at paragraph 26 that he was entitled to say “enough was enough”. That, in turn, destroyed Mr Kibirango’s hope of establishing Mr Ursell as a valid comparator in the same material circumstances: Mr Ursell was not said to have made any such personal remarks.
105. I conclude that the inadequacies in the Tribunal’s reasons which I have indentified above constituted a material error of law. It would not be appropriate to make a second request to the Tribunal for further clarifications of its reasons, using the Burns/Barke procedure.
106. The Tribunal’s preference for Mr Clark’s account over Mr Kibirango’s barely amounts to more than “[a] bald statement that X’s evidence was preferred to Y’s” which is “… unreasoned and therefore unacceptable” (per Morison P in Tchoula v Netto Foodstores Limited (cited above)). Nor would it be right for this Appeal Tribunal to conclude that the Tribunal below must have considered the relevant facts and matters not discussed in the judgment appealed against: cf Greenwood v NWF Retail Limited (cited above) per Judge Hand QC at paragraph 71.
107. With regret, I am driven to the conclusion that the Tribunal’s reasons do not measure up to the standard either of Meek (paragraph 8) or English v Emery (paragraph 19). Adequate reasons are an important aspect of the fairness of the trial because inadequate ones make it impossible to be satisfied that the Tribunal has properly performed the duty to try the case fairly to all the parties.
108. It is no answer to submit, as Ms Harris does, that this is a case falling within limb (a) of Laws LJ’s formulation in Jafri (cited above) at paragraph 21, where “the error cannot have affected the result …”. Indeed, there is an unappealed judicial decision to the contrary effect, namely that of Employment Judge Cocks who, while finding that the claims stood little prospect of success, rejected the proposition that they had no reasonable prospect of success. Whether the defective reasoning made a difference to the result cannot be determined until there has been a fair trial of the merits of Mr Kibirango’s claim.
109. I also have concerns about other aspects of the Tribunal’s treatment of Mr Kibirango’s evidence. The use of the expression “no evidence” to describe what must have been the rejection of his evidence, was controversial.
110. So was the comment that he had a “distorted perception”, which the Tribunal supported by the observation that he had not raised the issue of race with the Respondents before they extended the contract of Mr Ali, who is black.
111. The assessment of factual material is always a matter for the Tribunal below and it is not permissible for this Appeal Tribunal to interfere in the absence of any error of law. However, a Tribunal should exercise caution when considering how much weight to attach to the absence of or timing of any mention of race in the narrative history.
112. A person who mentions race early in the history, without overt reference to it having been made (as it rarely is), is open to the accusation of raising a race issue without evidence to support it, and thus is exposed to damage to his or her credibility as a witness. Here, Mr Kibirango would have been open to that accusation if he had mentioned race as an issue earlier than he did. On the other hand, his omission to do so was held against him. Employees contemplating a discrimination claim often face this unenviable dilemma.
113. Another Tribunal might have found his silence on the subject of race more eloquent as an indication of its relevance than if he had cried it from the rooftops. The account given in his email of 25 October 2012, part of which is quoted above, asked many questions about the explanations advanced by the Respondents, which, of course, were unconnected with Mr Kibirango’s race. Some Tribunals might regard as naive the suggestion that an unspoken consciousness of race as a possible issue is not normally in the mind of employer and employee alike in a situation such as this.
114. Ms Harris invited me to remit the case back to the same Tribunal if the appeal succeeded. Mr Allen opposed that course and suggested the case should be remitted for rehearing before a freshly constituted Tribunal. I have had regard, in the usual way, to the factors set out in Burton P’s helpful guidance in Sinclair Roche & Temperley v Heard [2004] IRLR 763, at paragraph 46.
115. Here, the Tribunal has already stated that Mr Kibirango has a distorted perception when considering the motives of the Respondent. It has been asked to return to the case twice, once when asked to reconsider its decision and a second time when asked to answer the Burns/Barke questions. That has not produced clear reasons to support the findings of fact made. It seems to me appropriate that a fresh Tribunal should now consider the matter. I reach that conclusion with regret because of the additional cost to the parties and delay which will result; but, reluctantly, I see no alternative.
116. The parties are agreed that the Third Respondent, Mr Parry, can no longer be required to take part in the proceedings. The grounds of the claim against him have been rejected and are not capable of being resurrected by the result of this appeal. The case will be remitted for a fresh Tribunal to consider Mr Kibirango’s claims as against the First and Second Respondents, as set out in allegations 3-11 in the Scott Schedule. I do not think it is appropriate or realistic to tie the hands of the fresh Tribunal by attempting to impose limitations on its fact-finding powers in relation to what was said at the meetings of 1 and 2 October 2012.
117. It follows that the costs order against Mr Kibirango must also be set aside, along with the main Decision. The deposit order in the sum of £1,000 remains in place. Mr Kibirango’s risk of exposure to a further costs order, should he proceed with his claim, therefore also remains. The undisturbed decision of Employment Judge Cocks is that his claims have little reasonable prospect of success.
118. I heard submissions from the parties’ counsel in relation to the appeal fees that were paid in the sum of £1,600. After the hearing, Mr Allen informed me that he had been told that £400 of that had been remitted to Mr Kibirango, which was not appreciated at the time of the hearing. The costs claim is therefore now limited to £1,200 and not £1,600 as argued at the hearing.
119. Ms Harris submitted that the appeal has diminished in scope and many of the proposed grounds have been disallowed. She invites me to reduce or eliminate any award of costs in consequence. Mr Allen countered that the second tranche fee of £1,200 became payable in full, and was paid, in consequence of the decision to allow the appeal to proceed to a Full Hearing, albeit on limited grounds.
120. I have considered these rival contentions and have come to the conclusion that (in the exercise of my power under Rule 34A(2A) of EAT Rules of Procedure) I should award Mr Kibirango the full amount of fees paid in respect of this appeal, less the £400 remitted to him. He has been, in substance, successful and could not have avoided any part of the fees that he has had to pay by reducing the scope of his grounds of appeal to what they eventually became. I will order that the First Respondent, the bank, must pay Mr Kibirango the fees of £1,200 which he has incurred.
121. Finally, I conclude by expressing my thanks to the legal representatives and by expressing the hope that the parties will seriously consider mediation as an alternative to renewed conflict before a fresh Tribunal. All three remaining parties (Mr Parry not being one any longer) have strong incentives to avoid a full rehearing, and face serious risks and burdens if one takes place.