United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0264/15/DM

 

 

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

 

 

                                                                                                             At the Tribunal

                                                                                                             On 17 May 2016

 

 

 

Before

THE HONOURABLE MR JUSTICE MITTING

(SITTING ALONE)

 

 

 

 

 

 

PHOENIX HOUSE LTD                                                                                         APPELLANT

 

 

 

 

(1) MS T STOCKMAN

(2) MR G LAMBIS                                                                                             RESPONDENTS

 

 

Transcript of Proceedings

 

JUDGMENT

 

 

 

 

 

 

 

 

 

 

APPEARANCES

 

 

 

 

 

For the Appellant	MR CHIRSTOPHER MILSOM (of Counsel) Instructed by: Trowers & Hamlins LLP 3 Bunhill Row London EC1Y 8YZ
For Ms T Stockman	The First Respondent in Person

 

 

SUMMARY

UNFAIR DISMISSAL – Reason for dismissal including substantial other reason

 

Whether Employment Tribunal entitled to find unfair dismissal when reason for dismissal was some other substantial reason such as to justify dismissal – a breakdown in working relationships – without giving employee the opportunity to show that she could work with colleagues about whom she had made complaint – yes, and whether section 207A Employment Rights Act 1996 applied to dismissal on that ground; - no.

 

 

 

 

THE HONOURABLE MR JUSTICE MITTING

 

1.                  The Claimant is a Russian national married to an Englishman.  From 5 October 2007 until 31 March 2010 she worked for the Respondent - a charity providing support to people with drug and alcohol problems - initially as an agency worker.  From 1 April 2010 she worked as a permanent member of staff.  From that date until 22 May 2013 she was a Financial Accountant in a team of 12 headed by George Lambis, the Finance Director.  Her line manager was Andre Betha.  On 15 April 2013 a restructuring of the Finance Department was announced.  It included the abolition of the post of Financial Accountant, held by the Claimant, and of Management Accountant, held by a colleague of the Claimant, Emily Savage.  Three new posts were to be created: Management Accountant, Systems Manager and Payroll Officer.  On 29 April 2013 the Claimant applied for all three.  Ms Savage applied only for the first, Management Accountant.  On 30 April 2013 an incident occurred between the two of them during which, according to the Claimant, Ms Savage commanded her angrily to reverse an accounting entry made earlier by her.  Ms Savage later apologised privately to the Claimant but refused to do so publicly.

 

2.                  On 1 May 2013 the Claimant raised a formal grievance about Ms Savage’s conduct, which on 14 May was rejected, principally on the ground that the apology already made to the Claimant by Ms Savage sufficed.  On 17 May 2013 Ms Savage and the Claimant were interviewed for the post of Management Accountant.  Ms Savage was selected.  On 20 May 2013 the Claimant was told that she had not been selected.  On 21 May, when picking up a telephone call for a colleague initiated by Mr Lambis, she put the telephone down, an act which he considered discourteous.  On the same day she was offered the post of Payroll Officer by Andre Betha, which she accepted on 22 May.  On Thursday 23 May the Claimant told Mr Betha, in the presence of a junior employee, Mansukh Mistry, that Mr Lambis had treated her differently, because, as the Employment Tribunal found, the Claimant thought he disliked her.  The Claimant claimed that Mr Mistry agreed with her.  Mr Betha, against whom the Claimant has never made any complaint, agreed to raise the matter with Mr Lambis.  Mr Lambis asked to see Mr Mistry in his office in Mr Betha’s presence to understand Mr Mistry’s position.  There followed what the Employment Tribunal found to be a good natured discussion between them.  The Claimant perceived that Mr Mistry was being reprimanded for his support for her.  She entered Mr Lambis’ office via its glass door and demanded that he tell her what their conversation was about.  Mr Lambis told her, in what the Employment Tribunal found to be a normal tone of voice, to leave his office, which eventually she did.

 

3.                  The Claimant was upset, burst into tears and went to see the Chief Executive, Karen Biggs.  Ms Biggs called Paula Logan, the Head of Human Resources, into the meeting and asked her to investigate what had happened informally.  Ms Logan did so, first by speaking to Mr Lambis and Mr Betha and then at 3.30pm to the Claimant. The Claimant surreptitiously recorded their conversation.  The Claimant complained about the restructuring and about Mr Lambis’ conduct towards her and said that she would raise a grievance about it.  Ms Logan said that the Claimant’s conduct, interrupting a director in a meeting, was misconduct and afforded grounds for disciplinary action against her.  Ms Logan believed that there should be a period for reflection for all concerned and told the Claimant to take paid leave until the following Thursday 30 May, when they would meet again.

 

4.                  According to a transcript of the discussion made by the Claimant, Ms Logan said the following:

“… I will put everything I said in writing, everything that has been discussed today.  You have time off until Thursday.  When I call you on Thursday afternoon, we can agree the way forward.  What I will write in the letter is what your options are: you can take the grievance in writing but if you do knowing that, there will be a disciplinary as well.”

 

5.                  That transcript was contentious, because the Respondent claimed that when they had listened to the tape they could not hear those words spoken.  Nevertheless, it seems that the tape was not played to the Employment Tribunal and it was not asked formally to rule on the accuracy or otherwise of the transcript.  On 24 May Ms Logan wrote to the Claimant dismissing her complaints about Mr Lambis and setting out her account of what had been discussed between them:

“In my discussion with you I informed you that we would view your action as gross misconduct and that I would be advising that a disciplinary panel be established to consider the facts of the case and decide what if any sanction should be taken.  Your response was to say that you would then make your complaint about the Director of Finance a formal grievance.  We agreed that it was your right to do so and we briefly discussed the steps involved.

During the course of this discussion you asked if there were any other options.  I explained that we would still start disciplinary proceedings but we could agree that you leave under a negotiated settlement consisting of a payment, an agreed reference and an agreed statement for colleagues and staff.  The payment would be the equivalent of your redundancy pay plus pay in lieu of notice.  This would be a “without prejudice” offer.

After some discussion we agreed that it would be best if you had some time to [think] about all the issues we had discussed today.  Initially we agreed to discuss matters by phone on the Tuesday following the bank holiday but we then agreed to delay the discussion until Thursday 30^th May to give you more time to get advice and think about your options.  On your request I confirmed that this would be treated as paid additional (special) leave.”

 

6.                  The Employment Tribunal accepted Ms Logan’s account of this part of their discussion.  On 30 May the Claimant submitted her grievance.  On 12 June Jayn Bond, who by then had stood in for Ms Logan as her replacement as Head of Human Resources or at least was fulfilling that role, notified the Claimant that her grievance would be heard on 18 June.  A disciplinary hearing would follow immediately afterwards to determine an allegation of misconduct, not gross misconduct, which could lead to a written warning, that she had on 23 May interrupted a meeting in the Finance Director’s office and failed to leave when asked to do so.  The hearing was postponed on account of the Claimant’s ill health to 2 July and then to 16 August.  The Respondent refused to adjourn it further, despite a sickness note provided by the Claimant’s general practitioner.

 

7.                  The grievance and disciplinary hearings proceeded in her absence and were conducted by Mandy Taylor, Head of Regional Operations.  She made a finding of misconduct and imposed a sanction of a 12 month written warning.  She decided to investigate the grievance further.  The outcome of the disciplinary hearing was notified to the Claimant by a means not evidenced in the documents or explained in the Employment Tribunal’s Reasons.  On 23 August the Claimant appealed against the disciplinary finding and sanction.  On 28 August the Claimant was notified that her grievance had also been dismissed.  She appealed against that decision too.  On 6 September 2013 the Claimant told the Respondents that she was fit to return to work on 9 September.  In reply, Ms Bond told her that she would be placed on authorised (i.e. paid) leave until the hearing of her appeal against the rejection of her grievance and the disciplinary finding and sanction, which was rescheduled for 16 September 2013.

 

8.                  Appeal meetings took place on that day, attended by the Claimant and chaired by Ms Biggs.  Both of the appeals were rejected.  The Claimant was notified of the outcome on 23 and 24 September.  During the meetings the Claimant complained about the conduct of Mr Lambis and claimed that the restructuring was a device to get rid of her.  Ms Biggs said in her letter notifying the outcome of the grievance appeal that the Claimant had clearly stated that she was no longer able to work with him.  She concluded with the following:

“I am keen that you should now return to work but realise that this cannot happen without some thought on both sides and I have noted that you requested a mediation meeting.

Therefore I have decided to ask Jayn Bond to arrange to have a meeting with you as soon as possible so that the way forward can be discussed.  In the meantime you will remain on authorised leave.”

 

9.                  The Employment Tribunal made no finding adverse to Ms Biggs to the effect that the statements were made otherwise than in good faith and as a genuine expression of her view. 

 

10.              The meeting with Ms Bond took place on 30 September.  There was a frank exchange of views politely expressed on both sides.  It was agreed that a report on the Claimant’s health and fitness to return to work would be obtained from her general practitioner.  Inevitably, there was difficulty in obtaining it.  Meanwhile, on 16 October 2013 Mr Betha discovered that the Claimant had used her corporate credit card to pay the fee for her to resit a professional exam, something that Mr Lambis believed was not authorised by company policy.  The Claimant was invited to an investigation meeting on 22 October, conducted by Ms Bond.  She attended it; it ended inconclusively.  The Claimant again expressed her wish to return to work and her belief that she could do so despite her continued reservations about Mr Lambis.  She requested a mediation meeting to be attended by both of them.  Her credit card was reduced to a nil balance, and nothing further was done about it.  Ms Bond agreed to a mediation meeting and arranged it for 30 October, later postponed to 15 November.  It was not a success.  On 25 November Ms Bond wrote to the Claimant requiring her to attend a formal meeting on 28 November to be chaired by Liz Zacharias, Director of Business Development, to consider:

“… if … the working relationship between yourself and Phoenix Futures has broken down to such an extent that it is irretrievable.”

 

11.              The meeting took place on 28 November and lasted three hours.  During it the Claimant repeatedly expressed her wish to return to work and her belief that she could work with Mr Lambis and others in the office, notwithstanding that she did not retract her submissions about his past conduct towards her.  Representative passages of her views are as follows:

“The relationship is not broken down.  I have worked for Phoenix Futures for a few years; 6 years.  I enjoy the work and the challenge.  I believe this is the reason why the way I am treated is so important.

I want to come back and do my job as before the grievance.  I believe the relationship is not beyond repair.  We can get along on a day to day basis.  We are still on speaking terms.  There is no real detrimental/negative impact on the work force.  There are lots of ways we can sort the relationship.”

 

12.              She was asked to explain what had happened since May when she made her complaint:

“The change is [sic] my behaviour is that in my previous job, it was stressful.  There was a shortage of staff.  I was left out.

Lola had health problems.  In March 2013, she could not even get medicine in her bag.  I gave her a medicine.  I went to Andre Betha to call an ambulance.  He said “no, she will be fine”.

In my previous role, there was a lot of work related stress and welfare issues.

In my new role, I do not have the big responsibility of managing staff and there is no shortage of staff in payroll.  It is different.”

 

13.              It is not necessary for me to cite verbatim the passages in which she indicated that she did not retract from the allegations that she had made.  Those comments were made despite that.  Ms Zacharias’ conclusion, expressed after a pause for thought, was as follows:

“We have spent a couple of hours discussing matters around your return to work.  I have listened to what you have had to say.  In my view, I don’t see a way forward for you to come back to work.

I feel the relationship has broken down irretrievably.  What you have said today hasn’t changed my mind.

Therefore, I will be ceasing your contact of employment for some other substantial reason, which is that the working relationship with Phoenix Futures is irretrievably broken down. …”

 

14.              The Employment Tribunal dealt, in my view entirely correctly, with the Claimant’s principal complaint, namely that she had been unfairly dismissed.  At paragraph 198 of its Reasons it identified the reason for dismissal: some other substantial reason of a kind to justify the dismissal of an employee holding the position that the Claimant held.  It went on to hold that, notwithstanding that that was, in employment law terms, an admissible reason, nevertheless the dismissal was not fair.  It gave four reasons for that conclusion:

(1)     The procedure adopted was not fair and, further, was not compliant with the 2009 ACAS Code.

(2)     Ms Zacharias’ approach was to start from the position that the relationship had broken down and to put the burden on the Claimant to prove otherwise.

(3)     Ms Zacharias took into account matters of which the Claimant was unaware (the outcome of her grievance and disciplinary appeals).  In consequence of those procedural shortcomings, the Tribunal concluded that the Claimant had not had an adequate opportunity to put her case or to challenge effectively the assertions that had been made against her.

(4)     In my view by far the most important of the reasons given by the Tribunal, the decision that there had been an irretrievable breakdown in the relationship between employer and employee was outside the range of reasonable responses by an employer to the situation in which the Respondent and the Claimant found themselves.  It expressed this conclusion in paragraph 242 of its Reasons:

“242. In the circumstances of this case the Tribunal concludes that an objective reasonable employer would not have concluded that the employment relationship was beyond repair to the extent that dismissal was a reasonable option.”

 

15.              In my judgment, that conclusion is unassailable.  In the course of submissions to me, I put it to Mr Milsom, for the Respondent, that what the Tribunal had in effect decided was that a reasonable employer would and could only have given the Claimant the opportunity of putting her statements about her willingness and ability to return to harmonious work to the test.  It is an unimpeachable conclusion, because, despite the allegations that the Claimant had made about the conduct of others, in particular Mr Lambis, her position was not like that of Mr Perkin in Perkin v St George’s Healthcare NHS Trust [2006] ICR 617 CA, that of a key director in a small management team, but that of a middle ranking clerical employee working as part of a team in a job that would not necessarily bring her in day to day contact with those with whom she found a relationship difficult, in particular Mr Lambis.  Mr Milsom says that the Respondent could not reasonably have been expected to permit the Claimant to return to work in the position in which, as was the case, she had to report directly to the employee who had beaten her for the job of Management Accountant, Ms Savage.  That might have proved difficult, or it might not.  The plain fact is that the Claimant never had the opportunity to demonstrate in practice that she could work harmoniously with her.  She had been absent from work from the moment that she had been told that she was to be the Payroll Controller and the moment the incident in Mr Lambis’ office had occurred.

 

16.              As to procedural errors, the Tribunal was, in my judgment, plainly entitled to conclude that Ms Zacharias’ approach, that of requiring the Claimant to prove to her that the relationship had not broken down irretrievably, demonstrated at least a partly closed mind and was a factor in leading to a conclusion that, for the reasons that I have explained as a matter of substance, was unfair.  As to the omission to give the Claimant the opportunity of taking into account matters that Ms Zacharias took into account, that was not of great moment, and the Tribunal were entitled to come to the conclusion that they did.

 

17.              Of greater general importance is the Tribunal’s conclusion that the 2009 ACAS Code applied.  It was laid before Parliament under section 199 of the Trade Union and Labour Relations (Consolidation) Act 1992, which permitted ACAS to issue Codes of Practice:

“(1) … containing such practical guidance as it thinks fit for the purpose of promoting the improvement of industrial relations.”

 

18.              The 2009 Code, like the 2015 Code, explains in its preamble that it provides basic practical guidance to employers, employees and their representatives “and sets out principles for handing disciplinary and grievance situations in the workplace”.  It does not apply to dismissals due to redundancy or the non-renewal of fixed-term contracts on their expiry.  It contains a set of recommendations as to the satisfactory investigation of disciplinary matters and grievances and as to the procedure by which they are to be handled.  Much of it is applicable in general terms to a case such as this in which misconduct is not alleged and capacity is not in issue, but what is in issue is the relationship between employer and employee and whether or not it has broken down irretrievably.  The issue has not been decided by this Tribunal or by any higher court; it has been the subject of two observations, the first in Lund v St Edmund’s School Canterbury UKEAT/0514/12/KN, a Judgment of this Tribunal presided over by Keith J, in which the employers had initiated disciplinary proceedings under their conduct rules that resulted in an outcome that by reason of a breakdown in the relationship between employer and employee (some other substantial reason) the employment should be terminated.  In those circumstances, it is unsurprising that the Tribunal observed in paragraph 13:

“13. … On the tribunal’s understanding of what the School’s case was, the Code applied to the process that resulted in Mr Lund’s dismissal because the disciplinary procedure was the mechanism which the School had used to decide whether Mr Lund should continue to be employed by the School.”

 

19.              In Hussain v Jurys Inns Group Ltd UKEAT/0283/15/JOJ Laing J on 3 February 2016 said the following, in paragraph 47 of her Judgment:

“47. Whether this Code is intended to apply to dismissals for some other substantial reason is not entirely clear from its text.  There are pointers in both directions.  So, I have some sympathy for the view that was expressed by the ET that it did not apply to a dismissal for some other substantial reason.  If the Code is given a purposive construction, I would be inclined to hold on balance that it should apply to a dismissal for some other substantial reason.  That conclusion is to an extent supported by the decision of this Tribunal in the Lund case, although I note Ms Misra’s submission that the Lund case is distinguishable because of the precise nature of the other substantial reason that was relied on in that case, but I do not have to decide this point. …”

 

20.              I respectfully disagree with Laing J’s provisional view.  Parliament has laid down a sanction in section 207A of the 1992 Act for failure to comply with a Code:

“(1) This section applies to proceedings before an employment tribunal relating to a claim by an employee under any of the jurisdictions listed in Schedule A2.

(2) If, in the case of proceedings to which this section applies, it appears to the employment tribunal that -

(a) the claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies,

(b) the employer has failed to comply with that code in relation to that matter, and

(c) that failure was unreasonable,

the employment tribunal may, if it considers it just and equitable in all the circumstances to do so, increase any award it makes to the employee by no more than 25%.”

 

21.              In my judgment, clear words in the Code are required to give effect to that sanction, otherwise an employer may well be at risk of what is in reality a punitive element of a basic and compensatory award in circumstances in which he has not been clearly forewarned by Parliament and by ACAS that that would be the effect of failing to heed the Code.  The Code does not in terms apply to dismissals for some other substantial reason.  Certain of its provisions, such as for example investigation, may not be of full effect in any event in such a dismissal.  What is required when a dismissal on that ground is in contemplation is that the employer should fairly consider whether or not the relationship has deteriorated to such an extent that the employee holding the position that she does cannot be reincorporated into the workforce without unacceptable disruption.  That is likely to involve, as here, a careful exploration by the decision maker, in this case Ms Zacharias, of the employee’s state of mind and future intentions judged against the background of what has happened.  Of course, it would be unfair, as it was found to be here to a marginal extent by the Tribunal, to take into account matters that were not fully vented between decision maker and employee at the time that the decision was to be made.  Ordinary commonsense fairness requires that.  Clearly, elements of the Code are capable of being, and should be, applied, for example giving the employee the opportunity to demonstrate that she can fit back into the workplace without undue disruption, but to go beyond that and impose a sanction because of a failure to comply with the letter of the ACAS Code, in my judgment, is not what Parliament had in mind when it enacted section 207A and when the Code was laid before it, as the 2009 and 2015 Codes both were.

 

22.              Accordingly, I dismiss the appeal against the finding of unfair dismissal but do so in circumstances that would not permit the Tribunal at the remedy hearing to award an uplift under section 207A of the 1992 Act.

 

23.              I turn to a matter that appears to have taken at least as much, if not more, time to argue and determine than the unfair dismissal claim, namely the claims made by the Claimant that she was subjected to a detriment amounting to discrimination, unlawful discrimination and victimisation because of either or both of protected acts or disclosures made by her.  Most of her complaints in that respect, which were manifold, were rejected by the Tribunal on various grounds, some of them that events had not occurred where the Claimant said they had, others on the basis that she was not subjected to a detriment, but two succeeded.

 

24.              The two that succeeded arose out of her grievance letter of 30 May 2013.  It is not necessary to refer to the whole of the letter, only to the paragraphs that the Tribunal considered to be relevant.  In paragraph 6 she invoked her statutory rights under section 26(1)(a) and (b)(i) and (ii) and section 40(1)(a) of the Equality Act 2010.  In paragraph 16 she contended that the Respondent’s management may be vicariously liable for omissions to act to render her working environment free from disruption and harassment under section 109(1), (2), (3) and (4)(a) and (b) of the 2010 Act.  In paragraph 26 she asserted that the events of 23 May to which I have already referred were an act of harassment and the “final straw” and so was in each case unlawful under the 2010 Act.  She went on to expand upon that in paragraphs 27 to 35 in terms that I have already summarised.  The Tribunal found that those complaints amounted to a protected act and also were protected disclosures.  The Tribunal also found that when she reiterated them in her submissions to the grievance meeting on 16 August 2013, she supplemented them by stating that something similar had happened to others.

 

25.              Before I turn to the Tribunal’s reasons for reaching the conclusions that it did that she had made those protected disclosures, committed those protected acts and had been subjected to a detriment and/or victimisation in consequence, I turn to the Respondent’s grounds of appeal.  Ground 1 is that the Tribunal erred in concluding that the Claimant had made a disclosure of information – by which it meant a protected act for the purposes of section 27.  Consideration of this ground of appeal is somewhat hampered by the Order of Simler P on 26 January 2016 - of which there are no transcribed Reasons - to the effect that the ground of appeal could proceed in relation to protected acts but not protected disclosure.  My interpretation is that she regarded it as unarguable that the Claimant had made disclosure of information for the purpose of section 43B of the Employment Rights Act 1996 and that that was to be taken as given but that the existence or non-existence of reasonable belief in those disclosures was not to be taken as given because she allowed ground 2 to proceed, which is that the Tribunal erred in its conclusion that the Claimant had established a reasonable belief as to the accuracy of her disclosure.  Ground 3 is that the Tribunal erred in its approach to good faith, ground 4 in its approach to the burden of proof, and, ground 5, the Tribunal did not address the Respondent’s case on limitation.

 

26.              As to ground 2, the existence or otherwise of reasonable belief, the Tribunal expressed itself at paragraph 263 in a sentence with which I have some difficulty:

“263. … The Tribunal concludes that the Claimant held a subjective reasonable belief in the matters set out in her grievance letter.”

 

27.              If by that the Tribunal meant that the Claimant’s subjective belief alone sufficed, it would, in my judgment, have been a clear error of law.  In Korashi v Abertawe Bro Morgannwg University Local Health Board [2012] IRLR 4 this Tribunal, in a panel presided over by HHJ McMullen QC, observed correctly that what is a reasonable belief under section 43B “involves an objective standard”.  So it does.  There is no such creature, in my judgment, as a subjective reasonable belief.  On the facts believed to exist by an employee, a judgment must be made as to whether or not, first, that belief was reasonable and, secondly, whether objectively on the basis of those perceived facts there was a reasonable belief in the truth of the complaints.  In circumstances in which the Claimant was personally involved in all of the events that gave rise to her complaint, the reasonableness of her belief can be judged by reference to objective facts.  It was, in my judgment, the duty of the Tribunal to do that.

 

28.              As to good faith, the Tribunal expressed itself at paragraph 265 by saying that they concluded from the evidence it received that the Claimant genuinely believed the matters raised.  That was a finding that was open to it, but in consequence of its findings it is possible that what in truth it concluded was that the Claimant made the disclosures in good faith but without good reason to believe that they were correct.  That does not satisfy the statutory test, and if, as may well have been the case, that was the approach adopted by the Tribunal, then it needs to be reconsidered.

 

29.              As to the fourth ground of appeal, that the Tribunal erred in its approach to the burden of proof, it adopted a somewhat convoluted course.  It dealt first with the imposition of the sanction of a written warning held in place for 12 months by expressing concern about the evidence of Ms Bond, who advised the decision maker, Ms Taylor.  The Respondent’s own disciplinary policies provided that a first written warning would normally remain in force for six months.  Ms Bond’s explanation for the 12 month sanction was that it was to be the new normal practice based, it seems, on her own experience with employers and in Tribunals elsewhere than with the Respondent.  The Tribunal noted, correctly, that Ms Taylor did not explain why she accepted the advice of Ms Bond and observed curiously that Ms Bond’s account of her application of a 12 month sanction “was uncorroborated by supporting evidence”.  It therefore concluded that because the sanction imposed lasted longer than the normal period set out in the Respondent’s disciplinary policy the relevant facts from which an inference that the sanction had been influenced by the making of the protected disclosure or the protected act was established.  It then went on to find that because Ms Taylor had not given evidence and because Ms Bond’s account was uncorroborated, the Respondent had not discharged the burden of proof imposed on them of demonstrating the absence of a connection between the two.

 

30.              This, with respect to the Tribunal, was not an appropriate way of addressing this question.  What the Tribunal had to do was to ask itself, which it did, whether Ms Taylor had accepted the advice of Ms Bond - by inference, it gave the answer yes - and whether or not the advice of Ms Bond was given for the reasons that she said.  Those reasons may well have been mistaken in the light of the Respondent’s own published policy.  They may well have been uncorroborated.  There is simply no requirement for corroboration of evidence in the Employment Tribunal in the usual case.  But what was critical was whether or not Ms Bond was telling the Tribunal the truth about her motivation.  If she was, then it does not matter that she was mistaken or even that her view as to the length of sanction was not a reasonable one.  All that had to be established by her was that it was not in any way affected by or related to the making of the protected disclosures or undertaking the protected act.  In effect, the Tribunal ducked the single most important question to answer in that context.

 

31.              Its conclusion in relation to the second detriment that it found, namely summoning the Claimant to the meeting of 28 November 2013 at which the decision to dismiss her was made, is even more difficult to follow:

“309. Ms Bond gave her account in her witness statement of why the letter [summoning the Claimant to the meeting] was written … and this account was not challenged in evidence by the Claimant.  Ms Bond states: “As a result of the mediation failing I had to assume that the Claimant still had a clear distrust of senior management including the Chief Executive.  In her meetings with me and the Chief Executive the Claimant had expressed opinions that suggested to me that she had no respect for her employer and she still completely believed that her grievance was well founded … I decided on this course of action because I had serious concerns about the reality of the Claimant returning to the workplace”.  The meetings with the Chief Executive at this time must refer to the grievance and disciplinary appeals.

310. The Tribunal concludes that Ms Bond did not in her evidence discharge the Respondent’s burden of proof and show that the disclosure itself did not materially influence her decision to send the meeting invitation letter to the Claimant. …”

 

32.              With respect to the Tribunal again, what it had to decide was whether or not Ms Bond was telling the truth.  It is not possible to decide an issue such as this, which depends on the truthfulness or otherwise of a single witness, without deciding that question.  By, again, ducking that issue in circumstances in which it was not in fact put in question by the Claimant, as the Tribunal noted, the Employment Tribunal did not adequately discharge its duty to find relevant facts about this supposed detriment.

 

33.              Finally, the Respondent submitted to the Tribunal that the first of the two detriments relied upon was out of time.  There was no continued series of acts, and in consequence the fact that there was a second detriment found did not avail the Claimant.  Although the route to a finding that the grievance letter of 30 May and the supplementary letter considered at the grievance appeal can readily be inferred, it is for the Tribunal to make the finding and not the Appeal Tribunal.  It is not appropriate for me to substitute my own view on a factual question for that which the Tribunal is required to make.

 

34.              Accordingly, for all of the reasons that I have summarised, the Tribunal’s approach to and findings upon the questions of detriment and victimisation because of protected acts and disclosures cannot stand.  The Tribunal must approach and re-decide these issues, if the parties really want the Tribunal to do so, afresh.  I therefore allow the Respondent’s appeal against this part of the Tribunal’s Reserved Judgment and remit it to the same Tribunal to reconsider if necessary on the basis of further evidence but equally, if it is their view that they do not need to hear further evidence, simply in the light of the observations that I have made.  What is required is for the Tribunal to make clear findings of fact on what are in essence fairly straightforward issues and to issue again a short Judgment on these questions.  For the reasons that I have given, the appeal against the finding of unfair dismissal is dismissed.  The remainder of the case as to protected acts and protected disclosures is remitted to the Tribunal to re-express its findings in the light, if it wishes to hear further evidence, of such further evidence as it may hear.