Appeal No. UKEAT/0201/06/MAA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 17 October 2006
Judgment handed down on 19 December 2006

Before
HIS HONOURABLE MR JUSTICE UNDERHILL
MR P A L PARKER CBE
MR A HARRIS

MR C D CLARKE	APPELLANT

SOUTH GLOUCESTERSHIRE COUNCIL	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	Mr Allan Roberts
(of Counsel)
Instructed by:
c/o Queen Square Chambers
56 Queen  Square
Bristol
BS1 6XY	
For the Respondent	Mr Nicholas Sproull
(of Counsel)
Instructed by:
Legal Services
South Gloucestershire Council
Council Offices
Castle Street
Thornbury	

Summary
Race discrimination – Direct/ Victimisation
Challenge to decision of Tribunal on basis that reasoning perverse and/or inadequate – Challenge rejected.

THE HONOURABLE MR JUSTICE UNDERHILL

1.	This is an appeal against the decision of an Employment Tribunal sitting in Bristol to dismiss the Appellant’s claim of racial discrimination.  The Appellant, who is of mixed race, was engaged on 30 June 2004 as a Residential Care Officer at a secure unit for young people in care operated by the Respondent.  His employment was on a probationary basis.  His immediate manager, Mr Webster, had concerns about his approach to the job, and there were a number of meetings between the Appellant and Mr Webster and/or other members of the management team.  These led to a final meeting on 3 December 2004 with Mr. Webster and Ms.  Choudhry, a Senior Personnel Officer, immediately following which they decided that he should be dismissed.  The Appellant alleged that his dismissal, and the sequence of events leading to it, constituted both direct racial discrimination and victimisation contrary to the Race Relation Act 1976.  The Tribunal dismissed both claims. Although there was initially an appeal against the Tribunal’s findings in both respects, the appeal as regards direct discrimination has been withdrawn, and we are now concerned only with the Tribunal’s decision on the victimisation claim. 

The Tribunal’s Decision
2.	Before the Tribunal the Appellant relied on three protected acts, actual or suspected.  The acts in question, and the Tribunal’s findings in relation to them, were as follows:-

(a)	The first act relied on was a comment which the Appellant made in the course of a meeting with Mr Webster on 26 August 2004, attended also by his union representative.  In the course of the meeting the Appellant – in the Tribunal’s words – “blurted out” that he would “take a race issue with Mr Webster”.  His representative said “hang on a minute, this is silly”; and – so the Tribunal found – the Appellant then withdrew the allegation. The Tribunal also found that Mr Webster did not repeat the allegation to his own manager, Mrs Norris.  However, it held that that statement, albeit withdrawn, nevertheless constituted a protected act for the purpose of  s. 2 (1)  of the 1976 Act. 

(b)	Secondly, the Appellant relied on a letter which he wrote to Mrs Norris on 3 November 2004. His evidence was that he consulted another manager, Mr. Beswick, about the procedures for having a different supervisor from Mr. Webster and was told that he should write to Mrs. Norris. Mr. Beswick asked him why he wanted a change, and the Appellant (whose evidence was uncontradicted on this point) told him that he found Mr. Webster rude and aggressive and that he thought he was receiving unfair supervision “on the basis of his personal feelings and prejudice towards me”. The letter which he wrote following his discussion with Mr. Beswick, reads:

“I am writing to you with the request of having my supervision manager being changed. It is my feeling that he and I have a conflict of personalities and that as a result I think that I am getting an unfair appraisal during my supervisions. 
I would be happy to discuss this with you at your earliest opportunity. This letter has been sent to you following the guidelines given to me by Ralf Beswick.
I thank you for your time in this matter and hope that some agreement can be sort as soon as possible.”

The Tribunal held that that was not a protected act: we will consider its reasons for that conclusion in due course. 

(c)	The third protected act relied on was that at the start of the meeting of 3rd December the Appellant alleged that he had been discriminated against and threatened proceedings if he was dismissed. The Tribunal found that that was a protected act. 

3.	The question for the Tribunal was then whether the acts complained of by the Appellant occurred “by reason that” he had done either of the protected acts which it had found.  It focused on three such acts complained of.

4.	First, it considered the way in which the Respondent handled the request by the Appellant for a change of supervisors made in his letter of 3 November 2004 set out above.  The request was refused.  By letter of 12 November Mrs. Norris said:
“Thank you for your letter regarding the difficulties you feel you are experiencing during your supervision sessions. I have now had the opportunity to discuss this with Keith Smith, and we have decided it will not be possible to agree to your request to change supervisors. I would be happy to meet with you to discuss this after you have spoken to Callum [Mr. Webster] as to where you think the problem lies.”

As appears from the letter, the decision communicated by it was made by Mrs. Norris in consultation with Mr. Smith, who was the Manager of the Unit.  The Tribunal found that it was not sensible for them to deal with the Appellant’s request by, in effect, sending him back to the very person about whom he was complaining.  But it held that the explanation for that decision was nothing to do with his previous complaint of racism (being the only protected act which had at that point occurred).  It said:

“36. We, therefore, turn to the respondent’s explanation. This is the area which we have found most difficult. In our view, the reference to an “adequate” explanation is to an explanation which is true, whether or not it is objectively “satisfactory”. It also has to be an explanation which is not tainted with discrimination. Even if the explanation given is the primary reason for the respondent’s action, the claimant will still succeed if the claimant’s ethnic origin or either of the protected acts influenced the decision. 
37. When Mrs Norris received the request for a transfer she discussed it with Mr Smith and Mr Webster. We consider that it is understandable that an employer would be reluctant to change supervisor at such a late stage of the probationary period. A new supervisor would have to familiarise himself or herself with the probationer and might not be in a position to give a reliable Probationary Report by the end of the 5 month period on 30th November. We have, therefore decided that this explanation is adequate.  
38. The decision to refer the claimant back to Mr Webster to discuss their perceived conflict of personalities was, in our view as stated above, wrong. But we have nevertheless come to the conclusion that it was a decision in which they would have made regardless of the claimant’s ethnic origin. We accept Mrs Norris’s explanation that it was their normal practice, when a complaint was made about a supervisor to require the employee to discuss it with that supervisor before taking it further. We are also satisfied that the decision to refuse the transfer was not made because of his allegations of 26th August and that this was not a factor in the minds of the senior managers.” 

5.	Secondly, the Tribunal considered the decision to call the Appellant to the probationary interview on 3 December which resulted in his dismissal.  That decision was communicated by a letter dated 19 November from Ms Choudhry; but the decision to hold the interview was taken by Mr Smith and Mr Webster.  The evidence did not clearly establish when that decision was taken.  The Respondent’s explanation for deciding to hold a probationary interview was that a number of issues had arisen about the Appellant’s conduct, and it sought to rely on a typed note setting out those issues under six headings.  The Tribunal did not accept that explanation, principally because some of the six incidents referred to post-dated 19 November.  It said this:

“39. The most problematic issue, in our minds, is the decision to summon the claimant to a probationary interview. Since this decision was made only two or three weeks after the positive supervision on 28 October and before most of the alleged November incidents had occurred, it is difficult to see why the decision was made.
40. The most likely explanation is that they were annoyed that the claimant had sought to move supervisors and to complain about his supervision at this late stage immediately after he had received a favourable review and that he was not contrite or respectful when he had his meeting with Mr Webster. It could be seen as an indication that the temporary improvement in his performance did not presage a permanent change in his approach. Since this relates to the letter of 3 November which was not a protected act, such an explanation is not tainted with racial discrimination or victimisation.”

6.	The third act complained of was the dismissal itself.  The Appellant was dismissed following the meeting of 3 December 2004 on the basis that his performance had been inadequate.  The Appellant acknowledged some shortcomings but sought to excuse them by referring to the fact that his mother was terminally ill with Huntington’s chorea, which is a genetically transmitted disease.  The Appellant had however on a previous occasion told Ms. Choudhry that his mother was dead; and his excuse was accordingly discounted.  The Tribunal’s decision, at para. 41 of the Judgment, was as follows:

“The final act of dismissal is much easier to explain.  By this time they had six specific allegations of bad practice from a person who had been there several months.  They also had the explanation that his performance had been affected by his own fears of having an incurable disease and his mother’s terminal illness.  The fact is that they rejected this explanation, not because of his race, or his protected acts, but because, at the original interview, he had either told them, or given the clear impression, that his mother was dead.”

7.	In short, the Tribunal was by no means uncritical of some aspects of the Respondent’s conduct and evidence (or indeed of the Appellant, whose evidence they also disbelieved on some points); but it found that the treatment of which the Appellant complained was by reason of factors which had nothing to do with his race or – which is what matters for the purpose of the appeal – with his complaints of racial discrimination. 
The Issues on this Appeal
8.	The Appellant had been represented before us, as he was before the Tribunal, by Mr Allan Roberts, who we understand to be a member of the Bar but who was acting as a lay representative: he has argued the Appellant’s case vigorously and effectively.  His submissions fall under four heads.  (The first corresponds to paras (a)-(d) of the Grounds of Appeal; the second to (h)-(j); the third to (k)-(n); and the fourth to (o)-(r).  The remaining grounds were dismissed at the sift.) 

(1)	Whether the Letter of 3 November 2004 was a Protected Act
9.	Although the shorthand “protected act” is convenient, the precise question for the Tribunal was whether the putative discriminator – in this case Mr. Webster – believed or suspected that the Appellant’s letter of 3 November 2004 constituted an allegation of racial discrimination.  We have given the text of the letter at para. 2 (b) above.  The Tribunal’s reasons for its decision that the letter did not constitute a protected act were given in para. 32 of the Judgment as follows:

“The … Claimant’s letter of [3rd] November … makes no direct reference to racial discrimination. We see nothing in the background of that letter to suggest that there is any implied reference to racial discrimination. It is, in our view, what it appears to be, namely a request for a transfer based on “conflict of personalities” and alleging unfair treatment. An allegation by a person from an ethnic minority that he has been unfairly treated is not ipso facto an allegation of racial discrimination and there is nothing in the background to suggest that it was intended so to be. The claimant had made clear in the meeting on 26th August that he knew of his right to raise racial discrimination and we are satisfied that he made a conscious decision not to raise this at that stage. The claimant’s representative referred in final submissions to the words “whether or not the allegation so states” in s.2 (1) (d) of the Race Relations Act 1976. We accept that an allegation which, in context, is plainly an allegation of racial discrimination will be treated as such an allegation even if it does not expressly say so. The present case, however, is different. There was nothing to indicate that the complaint was intended to be of racial discrimination. We therefore find that this was not a protected act.”

Although the Tribunal words its finding in terms of the objective meaning of the letter, in our view it can and should be read as a finding as to how it was understood by Mr. Webster.  It was common ground before us that it had been put to Mr. Webster in cross-examination that he understood the letter to be complaining about discrimination and that he denied it.  The crucial question for the Tribunal was accordingly whether the terms of the letter, read against the background that would have been known to Mr. Webster, were such that he must have understood the Appellant to be alleging racial discrimination.

10.	Mr. Roberts submits that the Tribunal was plainly wrong to say that there was “nothing to indicate that the complaint was intended to be of racial discrimination [emphasis supplied]”.  There were, he submits, a number of factors in the background to the letter which were at least indications of such an intention – specifically (a) the explicit allegation of racism on the part of Mr. Webster made on 26 August (para. 2 (a) above); (b) the Appellant’s complaint to Mr. Beswick that Mr. Webster was “prejudiced” against him (para. 2 (b) above); and (c) the fact that he asked for an urgent meeting with Mrs. Norris, at which – it could be inferred – he intended to allege racial discrimination.  Mr. Roberts says that in the light of those indications it was perverse of the Tribunal to find that the letter was not a protected act; or in any event, as a fallback, that it was wrong in law for it not explicitly to address those indications. 

11.	We see no error of law here.  Whether or not it was literally correct to say that there was “nothing” to indicate an intention on the Appellant’s part to allege racial discrimination, the substantive question for the Tribunal was whether there were sufficient such indications to justify the conclusion that Mr. Webster believed or suspected that the Appellant intended to make such an allegation; and its decision was that there were not.  That was a decision which was in our view plainly open to it.  The three factors enumerated in para. 10 above are very far from conclusive, either individually or cumulatively.  As to (a), the fact that over two months previously the Appellant had “blurted out”, but subsequently withdrawn, an allegation of racism, does not mean that Mr. Webster was bound to suspect an implied allegation of racism where the letter refers only to personality differences.  As to (b), there was no evidence that Mr. Webster was ever aware of the terms of the Appellant’s conversation with Mr. Beswick, nor in any event does “prejudice” necessarily mean “racial prejudice”.  As to (c), the request to see Mrs. Norris urgently is not necessarily suggestive of an intention to allege racial discrimination.

(2)	The Explanation for the 12th November Letter
12.	The Notice of Appeal advances various criticisms of the Tribunal’s findings at paras. 36-38 of the Judgment: see para. 5 above.  While he did not abandon these points Mr. Roberts did not develop them with any enthusiasm, and they seem to us plainly ill-founded.  We can deal with them briefly by reference to paras. (h)-(j) of the grounds of appeal

13.	At ground (h) it is submitted that the finding in para. 38 that the Respondents’ decision would have been made “regardless of the claimant’s ethnic origin” demonstrated that the Tribunal had failed to appreciate that victimisation contrary to s. 2 (1) was a separate form of discrimination which could be established irrespective of whether there was a finding of “ordinary” discrimination.  But the finding demonstrates nothing of the kind.  At that point the Tribunal was dealing simply with the claim of discrimination contrary to s. 2 (1); but a finding specific to the victimisation claim is made in the final sentence of para. 38.	

14.	Ground (i) contends that it was perverse of the Tribunal to find that the Respondents’ practice was wrong but not discriminatory.  We do not agree.  It is trite law that an employer’s action may be unfair or unreasonable without being discriminatory (under either s. 1 or s. 2).  The finding that Mrs. Norris was following “normal practice” in referring the Appellant back to Mr. Webster precluded the possibility that it was by reason of his complaint of discrimination on 26 August.

15.	At ground (j) the Tribunal is criticised for making no finding as to Mr. Webster’s reaction on having the matter referred back to him.  We do not believe that it was obliged in law to make any finding on that point having regard to the issues that it was obliged to decide. 

(3)	The Explanation for Holding the Meeting of 3rd December
16.	As set out in para. 7 above, the Tribunal did not accept the Respondents’ explanation of why the Appellant had been called to the meeting of 3 December.  Instead it found a different explanation, but one which still did not involve discrimination.  Mr. Roberts submitted that it was not open to the Tribunal to do so.  We cannot agree.  Tribunals are not prisoners of the parties’ submissions as to the view which should be taken of the facts emerging from the evidence which they may hear.  It is not uncommon for a Tribunal to take a view of the facts which does not correspond to that urged on it by either party.

(4)	The Explanation for the Dismissal Decision 
17.	Mr. Roberts’ first point about the Tribunal’s reasoning in para. 41 of the Judgment was that it fails to ask expressly whether the fact that the Appellant had committed either of the protected acts had a significant influence on the decision to dismiss him – that being the test expressed in Nagarajan v. London Regional Transport [2000] AC 501 (and see now Villalba v. Merrill Lynch [2006] IRLR 437).  We cannot accept this.  The Tribunal explicitly directed itself at para. 36 that even if the primary explanation for the acts complained of was non-discriminatory, liability would be established “if either of the protected acts influenced the decision”.  Against that background, there is no reason whatever to doubt that when the Tribunal made a finding as to the explanation for the decision it intended to state the entirety of the explanation, to the exclusion of any other significant factor.  Mr. Sproull for the Respondent pertinently referred us to the observations of the Court of Appeal in Jones v. Mid-Glamorgan [1997] IRLR 685 (at p. 690), to the effect that:
“The guiding principle, when it comes to construing the reasons of an industrial tribunal at an appellate level, must be that if the tribunal has directed itself correctly in law and reached a conclusion which is open to it on the evidence, the use in other passages of its reasons of language inappropriate to the direction it has properly given itself should not be allowed to vitiate the conclusion unless the relevant words admit of no explanation save error of law.” 

The present case is a fortiori, since it is not clear that the Tribunal’s wording was in truth “inappropriate”.

18.	In the alternative Mr. Roberts submits that, if the Tribunal is to be understood as finding that the protected acts had no significant influence on the dismissal decision, that finding is perverse or in any event inadequately reasoned.  In his skeleton argument and his oral submissions he gave an extended analysis of the six complaints identified by the Respondents, designed to show that they were so flimsy that the Tribunal could not reasonably have concluded that they represented the genuine and complete explanation for the decision.  He also said that the Tribunal should have given more weight to the fact that, on its own findings, a wrong explanation had been given as to why the meeting was called in the first place; and also that the Appellant’s security access had been de-activated prior to the meeting, suggesting that the outcome was a foregone conclusion.  He criticised the Tribunal for not engaging with the detail of these points: it simply referred to the fact that the six allegations had been made without any real analysis of their validity: see para. 41 of the Judgment set out at para. 6 above.  Mr. Roberts sought to bolster that argument by pointing out that some of the evidence on which he relied was not recorded in the Chairman’s notes: he was able to demonstrate this by reference to a “Scott schedule” showing the notes taken by the respective representatives and to the comments made by the Chairman when asked to resolve points of difference.  (The exercise is a tribute not only to the quality of Mr. Roberts’ notes but also to the industry and care with which he has prepared for this appeal.) 

19.	We are not satisfied that the decision was perverse.  While Mr. Roberts did an effective job of showing that one or two of the six complaints were indeed questionable, Mr. Sproull was equally able to show that some at least appeared well-founded.  He also reminded us that the Appellant himself, on the Tribunal’s findings, admitted that there had been shortcomings in his performance although he sought to excuse them by reference to the stresses caused by his mother’s illness.  The assessment of whether, in the light of all the circumstances, these factors were sufficiently cogent to be believable as a complete explanation for the dismissal decision is quintessentially a matter for the Tribunal as the judges of fact; and Mr. Roberts did not come close to establishing that the assessment was one which no reasonable Tribunal could have made.  

20.	The criticism of the adequacy of the Tribunal’s reasons has rather more force.  Para. 41 of the Judgment is not quite as scant as it may appear, since it must be read with earlier passages in the Judgment in which the Tribunal made some (admittedly brief) findings about the list of complaints considered on 3 December and concluded that some at least of them were serious.  But its treatment is certainly very summary and does not condescend to particulars.  We can understand that the Appellant might feel aggrieved that there is no engagement with the detailed arguments which were no doubt deployed.  But parties do not have an entitlement to have every detail of their arguments addressed.  They are entitled only to sufficient reasoning to enable them to understand why they have won or lost.  What degree of detail this requires will vary from case to case, depending on the nature of the evidence and the issues.  It is important to recall in the present case that the ultimate question for the Tribunal was what were Mr. Webster’s mental processes, conscious or unconscious – specifically, were they influenced by either of the protected acts ?  That ultimately involved a broad judgment about Mr. Webster’s approach and the integrity of his decision-taking.  Whether the six complaints were good or bad was potentially relevant to the Tribunal’s decision, but only indirectly: it was not central, as it would have been in an unfair dismissal claim.  If the Tribunal found it possible to reach a decision without assessing those complaints in detail it was entitled to do so.  It is in fact clear from the judgment when read overall that the Tribunal formed a favourable view of Mr. Webster and believed that his assessment of the Appellant was based on a genuine judgment of his performance untainted by illegitimate considerations.

21.	As regards the criticisms of the Chairman’s note-taking, we accept that where the terms of a Tribunal’s Judgment give grounds to contend that there has been some error of law, the argument may be strengthened by references to deficiencies in the notes: that may particularly be so where the alleged error takes the form of failure to take account of an important fact or evidence.  (Of course the point will only be available if the Chairman’s notes have been ordered to be produced; and we are not to be taken to be suggesting that they should be ordered to be produced simply because such an allegation is made.)  But it is the Judgment, and not the notes, which must be the starting-point.  If the Judgment betrays no error of law, one cannot be established by combing the notes for gaps or errors.  

22.	Mr. Roberts was also critical of the Tribunal’s acceptance that Mr. Webster and Ms. Choudhry discounted the Appellant’s explanation of his poor performance because Ms. Choudhry believed that he had previously said that his mother was dead.  He pointed out that Mr. Webster had accepted in cross-examination that he understood the Appellant’s mother still to be alive and had been unable to say why in that case he had not disabused Ms. Choudhry of her misconception.  But those answers in cross-examination, even if helpful to the Appellant, did not compel the conclusion that Mr. Webster was (consciously or subconsciously) prejudiced against him because of his earlier complaints.  They were, at most, a factor to be taken into account.  The Judgment is not defective in law because the point was not explicitly adverted to: we repeat that it is unnecessary for a Tribunal in its Judgment to follow every twist and turn of the subordinate arguments.

23.	We must accordingly dismiss this appeal.