Appeal No. UKEAT/0233/09/LA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 29 March 2010

Before
THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)
PROFESSOR S R CORBY
MR B M WARMAN

SHEFFIELD BLACK DRUGS SERVICE	APPELLANT

MR M NAGI	RESPONDENT

MR M NAGI	APPELLANT

SHEFFIELD BLACK DRUGS SERVICE	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For Sheffield Black Drugs Service
Appellant (Respondent in the cross-appeal)	Written submissions	
For Mr M Nagi 
Respondent (Appellant in the cross-appeal)	MS HILARY WINSTONE
(of Counsel)
Instructed by:
Messrs Keeble Hawson Solicitors
Old Cathedral Vicarage 
St James Row
Sheffield
S1 1XA

SUMMARY
UNFAIR DISMISSAL:  Constructive dismissal
RACE DISCRIMINATION:  Direct

Yemeni Claimant the subject of serious allegations by a fellow-employee – Allegations not substantiated - Claimant resigns as a result of employer’s hostility to his wish to pursue a grievance arising out of how the allegations against him and their aftermath were handled - Tribunal holds that employer’s conduct constituted a fundamental breach of the Malik term and that there was sufficient evidence to raise a prima facie case that it was on the grounds of his race.

Held:  That there was sufficient evidence to justify both conclusions and that the Tribunal had been entitled to dismiss a further claim that the employer had given the Claimant insufficient support in the aftermath of the allegations.

As regards the constructive dismissal claim, the Tribunal had directed itself by reference to Fairbrother and Claridge, which had since been over-ruled by Buckland; but held that on the particular facts that was not fatal to its reasoning.

THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)
INTRODUCTION
1.	The Appellant is a small charity based in Sheffield.  As its name implies, it provides advice and support to members of the black and ethnic minority community experiencing problems with drug abuse.  The Respondent to this appeal, to whom we will refer as the Claimant, was employed by the Appellant from 2002 until his resignation with effect from 24 July 2006.  He is of Yemeni ethnic origin.  Following the termination of his employment he brought claims against the Appellant of (constructive) unfair dismissal and racial discrimination.  The claims were heard by an Employment Tribunal sitting at Sheffield, chaired by Employment Judge Little, over three days in May 2008, followed by two further days in October.  By a Judgment and written Reasons sent to the parties on 11 February 2009 the claim of unfair dismissal and part of the claim of racial discrimination were upheld, but the balance of the racial discrimination claim was dismissed.

2.	There are before us an appeal against the decisions on unfair dismissal and racial discrimination, in so far as the Claimant succeeded, and a cross-appeal by the Claimant against the dismissal of one other of the other elements in his racial discrimination claim.  

3.	The Appellant was represented before the Tribunal by counsel, who also settled the Notice of Appeal and submitted a skeleton argument; but it has recently notified the Tribunal that it is unable to afford the costs of representation at this hearing, and there has accordingly been no representation before us.  We are asked to rely on the submissions contained in the Notice of Appeal and the skeleton argument, and we will do so.  (We were also referred by the Appellant to the recent decision of the Court of Appeal in Buckland v Bournemouth University Higher Education Corporation [2010] EWCA Civ 121, which we will consider below.)  The Claimant was represented below by a solicitor and has been represented before us by Ms Hilary Winstone of counsel.

THE FACTS

4.	The Appellant is run by a Board of Trustees and a Management Committee.  At the material times the Chairman of the Management Committee was Andrew Martin.  Other trustees who play a particular part in the story are Sandy Goodwill and Leroy Wenham.  In late 2005 the office comprised a manager, Hardeep Pabla, and four support workers, namely the Claimant, Aziz Muthana, Naeid Nabi and Trevor Braham.  James Cook was employed as administrator.  The ethnic origins of the staff were as follows:  Ms Pabla was Indian, the Claimant and Mr Muthana were Yemeni, Ms Nabi was Pakistani, Mr Braham Afro-Caribbean and Mr Cook white British.  

5.	In November 2005 Ms Nabi made a number of serious allegations against the Claimant, Mr Muthana, and Mr Braham, including that they had sexually harassed and bullied her and that the Claimant and Mr Muthana had in her presence accessed terrorist‑related material on the internet.  Ms Pabla decided to suspend all three.  

6.	Following the suspension, Mr Martin and another trustee conducted an investigation, and in February 2006 there was a disciplinary hearing before a panel chaired by a Mr Atkins: Mr Atkins and his wife were management consultants brought in by the Appellant to help it to deal with the problem caused by Ms Nabi’s allegations.  The Claimant was represented in the disciplinary proceedings by Mr Bown, a full-time officer with the Transport & General Workers Union.  

7.	The Claimant and the other two employees vigorously denied the allegations against them.  In particular, the Claimant produced a 22-page document dated 19 January 2006, which rebutted the charges against him in considerable detail.  We should note that on the penultimate page of that document there appeared a short section headed “Counter Grievances Claim”.  This consisted simply of two bullet points as follows:

“.  I will be putting in a counter claim against Naeid 
  .  Discrediting my name and reputation”

8.	In the evidence given to the investigation and/or the hearing Ms Nabi’s allegations were supported by Mr Cook.  It is necessary to note that in the course of the investigations there emerged particular counter-allegations against Ms Nabi and Mr Cook - that is to say, over and above the basic case of the accused employees that their evidence was untrue.  Specifically, there was evidence that Mr Cook had accessed pornographic material on the internet and had deleted material on the computer in order to cover his tracks; and that Ms Nabi had publicised in the local community the fact that her three colleagues had been suspended and details of her allegations against them.  

9.	The panel was not satisfied by the case against the Claimant or the other two employees.  In late February 2006 it recommended to the Management Committee that no disciplinary action should be taken against them; and there was also a recommendation of disciplinary action against Ms Nabi and Mr Cooke in respect of the counter-allegations to which we have referred.  This outcome was not formally notified to the Claimant himself, as it plainly should have been:  on the other hand, it was notified to Mr Bown on the telephone, and it is clear that the Claimant in practice understood that the charges against him had been dismissed.  It was agreed that the suspended employees would have a phased return to work.  The Claimant was ill for a period and did not in fact return to work until 24 April 2006.

10.	The situation following the dismissal of the charges against the Claimant and his two colleagues was for obvious reasons very awkward.  The Appellant decided to consult the staff about a way forward.  At paragraph 6.23 of the Reasons the Tribunal found as follows:

“On 8 March 2006 there was a staff meeting.  Minutes of that meeting appear at pages 190c and 190d.  Present were Sue Atkins, the independent consultant, from the staff there were Ms Nabi, Mr Cook, the Claimant, Mr Muthana, Mr Braham and someone called Amin.  The management were represented by Ms Harwood, Ms Goodwill and Mr Wenham.  Mrs Atkins explained the outcome of the disciplinary action ‑ there had not been sufficient evidence presented that would warrant dismissal of the staff concerned.	However, she went on to say that “it was recognised that the health and safety of the organisation had been put at risk as everyone had not provided enough care”. It was noted that the management committee were facing a dilemma.  Should disciplinary action be taken against other staff members “for their contribution to the overall situation”? The Respondent was having difficulty meeting targets.  Ms Pabla was at that stage on sick leave.  It was considered that there were three options.  The first would be to continue with disciplinary actions but that would paralyse the service.  Secondly, the service could be shut down and then restructured.  Thirdly, a line could be drawn “and everyone in the service must agree to put personal feelings and issues aside and make delivering the service the paramount concern”. The consensus of the meeting was that a line would be drawn.  It was for this reason that the proposed disciplinary action against Ms Nabi (breach of confidentially regarding the process of her grievance) and against Mr Cook (computer deletion etc) were never proceeded with.  Ms Nabi requested temporary transfer to the Burngreave Drug Project and that was granted, at least until Ms Pabla returned to work. …”

There were also a series of one-to-one meetings arranged between Mr and/or Mrs Atkins and the individual members of staff.  There is some uncertainty as to exactly what meeting or meetings took place involving the Claimant, and when; but the details do not matter for present purposes.  

11.	On 12 May 2006, by which time the Claimant had been back at work for about three weeks, Mr Bown wrote on his behalf to Mr Martin in the following terms:

“Re:  Mark NAGI
I am writing to you in connection with our above named member who, as you are aware, was involved in a disciplinary procedure throughout the early part of this year with two other members.
Following a long period of suspension, disciplinary meeting were arranged and I attended meetings with Mark.  At those disciplinary meetings you agreed together with your Panel that there was no case to answer and that Mark should return to work as soon as possible.
Mark has endeavoured to do that but at no stage has the Trust made any effort to write to Mark and inform him that there was no case to answer and apologies for the distress that this caused both himself and his family.
It is, therefore, our intention to enter into the grievance procedure with yourselves to raise these matters.  I would appreciate it, therefore, if a meeting could be arranged within the next 28 days, under the legislation for grievance and discipline, in relation to this grievance so that we can try and find an amicable way forward.
As you are probably aware Mark is very distressed at this moment in time and feels that the Trust has not taken into consideration any of this concerns.
I look forward to receiving an early response to this correspondence.  Failure to do so will automatically mean that I will have no other option but to enter into litigation with the Union’s solicitors on the grounds of victimisation, bullying and harassment in the workplace by the Sheffield Drugs Service.
I look forward to hearing from you.”

12.	On 1 June 2006 Mr Wenham wrote back to Mr Bown apologising for the delay and offering a meeting.  This exchange prompted Ms Pabla, belatedly, to write to the Claimant formally notifying him of the decision of the Management Committee.  The letter reads:

“Following an investigation into allegations brought to the management committee of SBDS in November 2005, it has been concluded that there was insufficient evidence to substantiate the complaint made against you,
It was agreed at a team meeting (8th March 2006) that all members of SBDS would concentrate on service delivery for at (sic) 3 months. Thereafter, the whole grievance and disciplinary procedure will be reviewed in consultation with the staff and committee in order that any future grievances or disciplinary are dealt with promptly and effectively.
It was also agreed at the team meeting that staff would have an opportunity to discuss the process and personal issues relating to the disciplinary.
I am fully aware that this has been a difficult time for you.  If you wish to receive further support (such as counselling) please do not hesitate to ask where this will be arranged for you.
Should you wish to discuss this further, please do not hesitate to contact me.”

13.	On 12 May 2006 the Claimant wrote a document in the following terms:

“To:  Management Committee
I am putting in writing my grievances against Shazia Nabi also known as Naield Nabi for the following reasons
•	Racial Harassment
•	Bullying
•	False accusations against me
•	Defamation of character
•	Breach of confidentiality
I would like to confirm that if any meeting is needed, could you please make contact this (sic) with my union rep Phil Bown as he will be representing me. …
I therefore have no choices but to put in my grievances against the above, and I hope that this is taken seriously and dealt with in a proper manner.”

That of course is rather different in its terms from the grievance referred to in Mr Bown’s letter of the same date; and the Tribunal found that it was not in fact sent at that time and was only given to the Appellant a month later, as described below.  

14.	On 14 June 2006 the Claimant attended a meeting with Ms Pabla.  In that meeting he gave her the grievance document of 12 May which we have set out in the previous paragraph.  The meeting is described in the Reasons as “impromptu”, and there was a conflict of evidence before the Tribunal as to what happened at it.  The Claimant’s evidence was that Ms Pabla was hostile and unreceptive and, as we understand it, that she gave him the impression that she still believed that Ms Nabi’s allegations against him, in particular of the watching of terrorist material on the internet, were true.  According to the Claimant, Ms Pabla told him that if he persisted in pursuing a grievance against Ms Nabi she herself would represent Ms Nabi in that procedure.  Ms Pabla’s account, by contrast, was that the Claimant was angry and upset, and that it was he who alleged that she still believed that the charges against him were true and that she herself said no such thing.  Shortly after the meeting she sent an e-mail to Ms Goodwill giving an account of it.  We have not seen that e-mail, but it is clear from the Tribunal’s description of it that there were elements in it which supported both parties’ accounts of the nature of the meeting:, although, obviously, it gave Ms Pabla’s side of the story, it also apparently demonstrated exasperation with the Claimant and his behaviour and his attitude, and it may be inferred that she evinced that exasperation at the meeting itself.   The Claimant left the office following his meeting with Ms Pabla on 14 June and, as it turned out, never returned.

15.	On 16 June - that is to say, two days after the meeting at which the Claimant handed over his grievance document dated 12 May - Ms Pabla wrote to the Claimant as follows:

“Re: Grievance
I acknowledge that I have received your grievance (dated 12:05.06) on 14.06.06.
Your allegations are sufficiently serious to warrant further investigation.  However, in order to progress this issue, your written grievance should fully explain the nature and extent of your grievance, including an outline of the incidents and dates wherever possible.
Please could you forward the relevant information to me within 10 working days of receipt of this letter.
I attach SSDS Grievance Procedure for your information.”

16.	Three days later, on 19 June 2006, the Claimant had a telephone conversation with Ms Goodwill.  The nature of that conversation was recorded by her in an e-mail to Ms Pabla of 20 June as follows:

“…I had a long chat with Mark,, and offered him the opportunity of resolving the situation informally, he said he felt he could not put himself through it, and had decided to resign, he went on to say he had seen .a solicitor, I asked him if he was going to make a claim against us, he said he really didn't know, the bottom line is that he has been signed off sick for four weeks, and the solicitor told him to come back in four weeks time.
I explained that the grievance procedure would remove the need for this, I said I had spoken to you and we both felt that he deserved to have his grievances heard and solutions found, but he was adamant about resigning, however he is clearly not fit for work, his son is in hospital, and he was quite emotional about some things - I felt quite sorry for him on a personal level, I told him while he is signed off sick to think about the situation, and I would phone him in two weeks to see if he has changed his mind, and to see if we could find a resolution before seeing the solicitor. … ”

17.	On 6 July Mr Bown wrote to Ms Pabla (with a copy to the Claimant) as follows:

“I am responding on behalf of one of my members, Mr Mark Nagi, in relation to correspondence you have sent to him on 16th June 2006.
I apologise for the lateness of my reply, but I have been out of the office for a considerable amount of time since I spoke to Mark after he received this letter.
I understand your position in (sic that the allegations are sufficiently serious to warrant full investigation.  If you have received correspondence from Mark in the past in relation to the grievance, the grievance revolves around the seriousness of the disciplinary sanction that tried to be placed against him earlier this year.
I would appreciate it if you could arrange a meeting for myself and Mark to have a discussion with you in relation to this allegation as soon as possible. I would also appreciate it if you could contact my secretary on 0114 256 2600 to make the relevant appointment.
I look forward to an early response from you.”

18.	There was no reply to that letter until 24 July, when Ms Pabla wrote as follows (again with a copy to the Claimant):

“I apologise for the delay in my reply, but I have been on leave.
After further consideration of the allegations raised by Mark I would suggest that this matter should be dealt with firstly through the complaints procedure; in any case I will need further information in order for an investigation to be carried out.  However it is still worth clarifying the following:
•	Are you supporting Mark with a grievance against management? And if so, can you provide further information.
•	No formal discipline was passed against Mark, so what are the grounds for his grievance?
•	Are there a number of separate issues being dealt with?
Mark’s letter to me dated the 12/05/06 referred to a grievance against a member of staff, whilst your recent letter stated, “the grievance revolves around the seriousness of the disciplinary sanction that tried to be placed against him earlier this year”, My understanding is that a grievance procedure cannot be entered into because of a disciplinary action.
When the above has been clarified 1 will arrange for you and Mark to meet with the designated investigating officer for an interview to clarify-the allegations within the complaints procedure
I am sure you can appreciate the need for clarity in order to ensure the correct procedures are followed.”

19.	That letter from Ms Pabla crossed with a letter from the Claimant of the same date headed “Resignation”, which reads:

“I am handing in my resignation after over 4½ years of service, I have worked hard to help build this service and to make sure that the people from the Black Minority and Ethnic Communities get the full support they need and my work record speaks for itself.
1ve found the last year and a half very hard due to the bullying, lies and slander from the manager who has made my life hell, this has made it unworkable for me to continue working there, due to the stress and ill health this has caused and is still continuing to cause I have no option but to hand in my resignation from today the 24th of July 2006.”

THE ISSUES

20.	In October 2006 the Claimant commenced the present proceedings.  Despite his giving Further and Better Particulars of the originating application the details of how the claims were put were not very clear, and it was only on the occasion of an abortive hearing in September 2007 that the opportunity was taken to obtain an agreed definition of the issues.  Paragraphs 1.3 ‑ 1.4 of the Tribunal’s Reasons summarise the agreed issues as follows:

“1.3	On the occasion of what would have been the hearing of the matter in September 2007 (when in fact there was an adjournment) it was confirmed that in relation to constructive dismissal, the Claimant contended that the implied term of mutual trust and confidence had been breached because:-
•	the Respondent had instigated and then pursued disciplinary action against him;
•	the Respondent had failed to address the Claimant's written grievance;
•	the Respondent had failed to adequately support the Claimant on his return to work after suspension; and
•	the Respondent had discriminated against the Claimant on the ground of his race.

1.4	In relation to the race discrimination complaint, the three matters of complaint were the first three matters in the list above, discipline, grievance and failure to support.”

It is clear from the Claimant’s pleading that the discrimination claim was on the basis that he was being discriminated against as “an Arab”.  

21.	Thus, as regards both the constructive dismissal and the racial discrimination claim, the breaches alleged/acts complained of fall under three heads, namely (putting them in chronological order):  

(a) 	the initiation and pursuit of disciplinary action against the Claimant; 

(b) 	the failure adequately to support the Claimant on his return to work - that is. with effect from 24 April 2006; 

(c) 	the failure to address his written grievance:  we consider below what grievance was in fact being referred to.  

22.	Taking those heads in turn the decision of the Tribunal was as follows:  

•	As to (a), it held unanimously that the Appellant had been justified in bringing disciplinary proceedings in the light of Ms Nabi’s allegations and that there was no basis to infer any racial ground for that action.  

•	As to (b), it held unanimously that the Appellant had given adequate support to the Claimant on his return, so that there was neither a breach for the purpose of the constructive dismissal claim nor any detriment for the purpose of the discrimination claim.  

•	As to (c), it held by a majority, consisting of the lay members, that the Appellant had indeed failed properly to address the Claimant’s grievance and that that factor both constituted a fundamental breach, in response to which the Claimant was entitled to and did resign, and was an act of racial discrimination. 

23.	The Appellant’s appeal is against the finding in relation to (c).  The Claimant’s cross-appeal is against the finding in relation to (b).  We are not concerned on this appeal with the fnding on (a).  As regards the cross-appeal, we should note that, formally, the only cross-appeal in the strict sense can be against the failure to make a finding of racial discrimination in relation to element (b): as regards unfair dismissal, there is no room for an appeal, because the Claimant has already successfully established unfair dismissal.  What, strictly speaking, the Claimant is doing in this regard is contending that he should have succeeded on a further or alternative basis.  

24.	It is convenient to start with the cross-appeal since the conduct with which it is concerned comes first chronologically.  Ms Winstone made it clear at the start of her submissions that she was in practice only concerned with the cross-appeal if the Appellant succeeded on the appeal.  That was a sensible and pragmatic stance, but we feel obliged to deal with the point in any event.

THE CROSS-APPEAL

25.	The first point made in the cross-appeal concerns the Tribunal’s treatment of the Claimant’s document dated 19 January 2006, to which we have referred at para. 7 above.  At para. 9.6.1 of the Reasons the Tribunal seeks to identify the “grievance” which is the subject of what we have referred to as element (c).  It holds that the 19 January document was not itself expressed as a grievance but as a response to the charges against the Claimant and, specifically, that the short section headed “Counter Grievance Claim” does no more than express an intention to advance a grievance subsequently, which was not in fact done until several months later.  The Claimant challenges that conclusion.  More particularly, he seeks to persuade us that the 19 January document constituted a grievance for the purpose of the statutory grievance procedure set out at Schedule 2 of the Employment Act 2002; and we were referred in the skeleton argument, though not in oral submissions, to such familiar authorities as Shergold v Fieldway Medical Centre [2006] IRLR 76 and Canary Wharf Management Ltd v Edebi [2006] ICR 719.  

26.	In our view the Tribunal was entitled to reach the conclusion that it did.  It is not only that the passage relied on by the Claimant uses the future tense: the entire context was of a response to allegations made against the Claimant in the disciplinary proceedings.  The Tribunal was fully entitled to conclude that a reasonable employer would have read the document in that way, and it was entitled also to draw an inference, as it did, from the fact that no complaint was made about any failure to pursue that grievance until the present proceedings.  

27.	Having said that, the entire argument about the status of the document of 19 January seems to us to be a red herring.  It appears from the meat of the Respondent’s Answer, and still more from Ms Winstone’s submissions, that the Claimant’s real point is not that the statutory procedures were not followed - which would in any event not, as such, be a fundamental breach (and if it were would have been waived) - but that the fact that the Claimant had made these allegations, and that they had not been addressed, is an important context for the actual breach/act complained of at a later stage - that is to say, the failure properly to support the Claimant on his return to work.  That is a legitimate point, but it is not dependent on the precise status of the 19 January document.

28.	We return therefore to the allegation of failure to support the Claimant.  The Tribunal made an express finding at paragraph 9.2 of the Reasons, for the purpose of its decision in the claim of racial discrimination, that:

“We are satisfied that the respondent afforded support thereafter to the claimant so as to ease his return to work.  The respondent established a phased return to work for the claimant and the other two employees who had been suspended.  In fact the claimant was allowed the longest period away from work and was put under no pressure to return.  He was then given the opportunity to have a ‘one to one’ meeting with Mr Atkins on 24     April 2006.”

That finding was essentially repeated in the unfair dismissal context at para. 9.5 of the Reasons, where the Tribunal said this:

“We remain of the view that although it was born out of an unhappy situation, the support offered to the Claimant and his colleagues was adequate and again comes within the ‘reasonable responses parameter’.”

29.	The Claimant’s case as advanced in the Respondent’s Answer is that this finding was simply wrong.  His case is that the Appellant was, or should have been, aware, by reason not least of the terms of the 19 January document, of the enormous impact which Ms Nabi’s allegations had had on him: his counter-allegations against Ms Nabi should have been investigated, and much more should have been done to repair the damage to the relationship of trust and confidence between him and the Appellant.  As it is put at para. 2.2 of the Respondent’s Answer:

“Clearly, what the Claimant required in terms of support was a restoration of the ‘trust and confidence’ that the tribunal unanimously acknowledged with clarity had been damaged by the suspension and the allegations (Paragraph 9.4).  This would have involved more than a phased return and a ‘one to one meeting’ with a trustee.  Mediation would have been required and a full exoneration of the Claimant, not only to his co-workers but also to the agencies who were simply told that the Claimant was returning to work.  Nothing was done to remove the cloud that existed over the Claimant's head.  In failing to address the issue of the 19th January document, the tribunal overlooked the obvious problem that existed between the parties between January and July 2006.  Instead, it erroneously focussed on the traditional ‘support’ mechanisms of a phased return and a one‑to‑one meeting.  It also ignored the failure to communicate directly with the Claimant during this period, which further damaged the relationship.  This culminates in the meeting between the Claimant and Ms Pabla on the 14th June at which Ms Pabla showed ‘hostility towards the Claimant and his grievance’ (Paragraph 9.6:2).

This is in truth though the term is not used, a submission that the Tribunal’s decision is perverse.  

30.	We cannot accept that submission.  The question whether the Appellant did enough to support the Claimant is quintessentially a matter of fact and evaluation for the Tribunal as an industrial jury.  We might or might not have been persuaded by the points made in the Respondent’s Answer if they had been made to us at first instance, but we can well see how the Tribunal could have reached the conclusion that it did.  Ms Nabi’s allegations, and the conclusion that they could not be substantiated, had clearly created a very difficult situation One way of dealing with that situation would indeed have been for the Appellant to turn its fire on her.  But that too would have created serious problems, as was carefully explained to the staff meeting on 8 March, about which we have set out the Tribunal’s findings above at para. 10 above.  At that meeting an apparent consensus was reached, involving the Claimant, on the taking of a different course.  It is easy to see how that course in turn created difficulties for the Claimant; but he was not left unsupported, as the Tribunal expressly found.  It was well within the Tribunal’s area of judgment to decide to proceed on the basis that there was no breach of duty to the Claimant.

31.	There is, however, another point which we have to consider.  The Tribunal explicitly reached its conclusion on this issue on the basis that the Appellant’s conduct lay within “the range of reasonable responses”.  That is a reference to the decisions of this Tribunal in Abbey National Plc v Fairbrother [2007] IRLR 320 and Claridge v Daler Rowney [2008] ICR 1267, to which the Tribunal expressly refers in its discussion of the law.  Those cases say that in considering whether the conduct of an employer constitutes a fundamental breach of a contract of employment entitling the employee to resign a tribunal should ask whether that conduct fell within the range of responses open to a reasonable employer, i.e. the familiar test applied in considering the reasonableness of explicit dismissals.  Those two decisions have now been disapproved by the Court of Appeal in the case of Buckland, to which we have already referred.  It is now clear that a Tribunal in a constructive dismissal case should apply “the unvarnished Mahmud test”: see para. 22 of the judgment of the Court of Appeal.  The reference is to the decision of the House of Lords in Malik v Bank of Credit & Commerce International SA [1997] ICR 606, a case confusingly sometimes also referred to as “Mahmud”.  The speeches of Lord Nicholls and Lord Steyn in that case contain the authoritative formulation of the so-called duty of trust and confidence to which we will refer as “the Malik term”.  Specifically, to adopt the formulation of Lord Steyn at p. 621 C–D, it is an obligation “that the employer shall not without reasonable and proper cause conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee”.  Thus the question which the Tribunal should have asked itself in the present case is whether the level of support offered to the Claimant was in breach of that term.  If there is any real doubt as to how the Tribunal would have answered that question we should remit that issue; but we do not believe that there is.  The Tribunal in its discussion of the racial discrimination aspect made the express finding which we have set out at para. 28 above: in our view that is wholly inconsistent with a finding of any fundamental breach of contract in this respect. 

32.	We have so far considered the question of the alleged lack of support only in the context of breach of contract.  The Claimant in his Respondent’s Answer makes a separate submission in relation to the claim of racial discrimination - see para. 3.2, where he makes similar points to those made in para. 2.2 to which we have referred, together with one or two other more marginal points - and it is contended that the Tribunal should have found racial discrimination on that basis.  

33.	We reject the Claimant’s contentions in this regard on essentially the same grounds as we have done in relation to the claim of constructive dismissal.  The question turns on a factual assessment by the Tribunal which it was entitled to make.  It is true that the questions whether the Appellant’s conduct constituted a breach of the Malik term and whether or not it constituted a detriment for the purpose of a discrimination claim are not analytically identical.  As regards the latter, the Claimant is, in theory, entitled to rely on each individual omission alleged - for example, failure to arrange mediation between himself and Ms Nabi - and contend that that was “done” on racial grounds, and such a claim could, in theory, succeed even if it did not amount to a breach of contract.  But the case is not put that way, in our judgment rightly.  The case was put below generically on the basis of inadequate support, and once the Tribunal found that the support afforded was adequate then the adverse “treatment/detriment” on which the Claimant must rely is not established.  

34.	We accordingly dismiss the cross-appeal.

THE APPEAL

UNFAIR DISMISSAL

35.	We are here only concerned with element (c) in the Claimant’s complaint - namely that the Appellant “failed to address the Claimant’s written grievance”.  The Tribunal, as we have already mentioned, started its consideration, at para. 9.6.1, by seeking to identify what written grievance was outstanding.  Its conclusion was that there were two grievance documents – Mr Bown’s letter of 12 May and the Claimant’s document of the same date submitted to Ms Pabla on 14 June.  That conclusion seems to us plainly right.  We have already disposed of the suggestion that the document of 19 January constituted a further outstanding grievance. 

36.	 The reasoning of the majority on this issue appears at para. 9.6.2 of the Reasons as follows:

“Majority conclusions as to whether the respondent’s treatment of the grievance amounted to a fundamental breach

The majority consider that the grievance raised by the claimant was essentially because of his concern that the matter which had been alleged against him by Ms Nabi were being raked over.  It was relevant to take into account in terms of the claimant's frame of mind, that when he presented his grievance to Ms Pabla at the meeting on 14 June, he was not well.  The majority preferred the claimant's evidence as to the exchanges between the claimant and Ms Pabla at this meeting - that is that Ms Pabla was being unreceptive to his concerns as set out in the grievance and, as mentioned above, was displaying bias because she had said that she would represent Ms Nabi during the grievance process.  Whilst the majority accept that the claimant's behaviour on 14 June was not beyond reproach, nevertheless, Ms Pabla should have risen above this because of the obligation on the employer to deal with what the claimant considered to be unresolved issues.  Although the majority accept that Ms Pabla is unlikely to have said “if he wants to take this further then he has a real battle on his hands” to the claimant's face, nevertheless the fact that Ms Pabla expressed this view in her email to Ms Goodwill on the same day as the meeting shows her state of mind - that is hostility towards the claimant and his grievance.  That this approach of Ms Pabla amounted to a final straw as far as the claimant was concerned is shown by the fact of the claimant informing Ms Goodwill during the course of their 19 June telephone conversation that he had decided to resign.  Although the claimant did not in fact resign until nearly 6 weeks later that did not alter the fact that the final straw had occurred on 14 June. Ms Goodwill's more conciliatory approach during her conversation with the claimant on 19 June did not change the outcome. Although ostensibly the respondent began to process the claimant's grievance, the majority take the view that that was simply going through the motions and that the respondent's approach was somewhat technical and obstructive.  Even as late as 24 July Ms Pabla was expressing the view that a grievance procedure could not be entered into because of a disciplinary action (see her letter of that date to Mr Bown of the T & G - page 74).
In all those circumstances the majority conclude that the respondent's approach to the claimant's grievance amounted to a course of conduct which fell outside the range of reasonable responses which a reasonable employer would consider to be appropriate in the circumstances of the given case and that as such a fundamental breach occurred and that the claimant resigned in consequence with the result that he was constructively dismissed.”

The minority view of the Employment Judge appears at para. 9.6.4.  We need not set it out in full.  In essence he takes a different view from the majority not because of any differences with regard to the law but simply because, unlike them, he preferred Ms Pabla’s account of what happened at the meeting of 14 June.

37.	It is apparent from the reasoning in the passage which we have set out that the primary basis for the finding of the majority is the attitude evinced to the Claimant’s grievance by Ms Pabla at the meeting of 14 June, although there is some reliance also, the effect of which we consider below, on the Appellant’s failure to progress the grievance thereafter.  To that extent the Tribunal’s reasoning depends on the factual findings made by the majority about how Ms Pabla behaved in that meeting.  At para. 20 (ii) (c)‑(d) of the Notice of Appeal the Appellant challenges those findings on the basis that the Claimant’s account of the date of the meeting had changed during the hearing and that Ms Pabla’s account was supported by her almost contemporary e-mail (see para. 14 above).  But these are purely matters of factual assessment; we do not believe that it can be said on the basis of them that the majority was obliged to prefer Ms Pabla’s account.  For reasons which it gave it did not do so.  That is a conclusion with which we are not entitled to interfere.  

38.	The next question is whether on the basis of those findings of fact it was open to the majority to find that Ms Pabla’s conduct was a breach of the Malik term.  Again, this is a matter of judgment and assessment, primarily within the province of the Employment Tribunal; and again, subject to the particular points considered below, we do not think that the conclusion of the majority that Ms Pabla’s conduct did constitute a breach of the Malik term can be said to have been perverse.

39.	There are however some specific difficulties about the Tribunal’s expressed reasoning which we need to consider.  

40.	First, it applies the now discredited test based on Fairbrother and Claridge.  Again, however, as in the case of the cross-appeal, we do not regard that misdirection as fatal.  By finding that Ms Pabla’s conduct was “outside the range of reasonable responses” the majority were in our view necessarily finding that she did not have reasonable or proper cause for acting as she did.  It also seems to us that the majority must have found, at any rate in the circumstances of the present case, that the conduct in question was such as to destroy or seriously damage the relationship of trust and confidence between the parties:  it is quite apparent from Claridge, by reference to which the Tribunal directed itself in the section of its reasons dealing with the law, that the requirement that the conduct complained of be such as to destroy or damage the relationship of trust and confidence remains an essential element in the test.  We do not say that in every case a self-direction following Claridge must mean that the tribunal can be taken to have addressed the correct question, as now established by Buckland; but we believe that to be the case here.

41.	Secondly, the majority refer at more than one point to “the last straw”.  This is submitted in the Notice of Appeal (see paras. 13‑15) to be an error of law.  Ms Winstone, rightly and realistically, accepted that it was a wrong use of language on the part of the Tribunal.  The so‑called “last straw” principle is pellucidly explained at paras. 14‑22 of the judgment of Dyson LJ in Omilaju v Waltham Forest London Borough Council [2005] ICR 481 (see at pp. 487‑9).  It is relevant in cases where the final act which triggers the employee’s resignation would, if taken by itself, be insufficient to constitute a repudiatory breach.  What the principle establishes is that that will not matter if, when the act in question is taken with a prior course of conduct on the part of the employer, the conduct as a whole constitutes such a breach.  This, however, is not such a case.  There had, on the Tribunal’s own findings, been no breach of contract up to the moment of the meeting between the Claimant and Ms Pabla on 14 June.  The question for the Tribunal was squarely whether Ms Pabla’s conduct at that meeting was by itself a breach of the Malik term.  That said, however, the justification for, and the impact of, that conduct fell to be assessed in the light of the previous history, and in particular of the fact that the Claimant was understandably greatly distressed by the allegations which had been made against him and by the fact that no steps had been taken against Ms Nabi.  Ms Winstone submits that that was in fact the point that the majority were here intending to make.  There was no reference in the Tribunal’s self-direction on the law to any of the “last straw” cases and, so far as can be detected, the use of the language appears to have originated with the Appellant’s counsel (see the summary of her submissions as para. 7 of the Reasons).  That being so, we should, she submits, regard it as no more than a loose use of language on the part of the majority:  their reference to “the last straw” was simply their way of denoting the breach which, in the context of the entire history, entitled the Claimant to resign.  Not without some hesitation, we are prepared to accept that submission.  It has not been demonstrated to us that the Tribunal misdirected itself as to a matter of substance.

42.	Thirdly, the Appellant had clearly taken a point about affirmation: this had been identified, albeit only in general terms, as an issue at para. 2 of the Reasons.  At para. 16 of the Notice of Appeal the Appellant pleads:

“Having found that the fundamental breach occurred on the 14.06.06, the Tribunal did not go on to consider whether the Claimant, who did not resign until 24.07.06, acted in such a way as to affirm the contract.”

We agree that the affirmation issue is not clearly addressed in the reasoning of the majority.  It is true that the passage beginning “although the Claimant did not in fact resign until 6 weeks later” appears at first to be directed to the question of affirmation; but the point immediately following - namely that “that did not alter the fact that the final straw had occurred on 14 June” - is simply irrelevant to that question, and the criticisms which then follow of the Appellant’s subsequent correspondence as being technical and obstructionist do not on the face of it meet the point either.  Ms Winstone, however, submits that on a benevolent construction of the Reasons what the majority appear to be saying, albeit in a telescoped fashion, was - (a) - that the Claimant appeared to have held off submitting his resignation, threatened in his conversation with Ms Goodwill on 19 June, because the Appellant was now promising a grievance procedure; but  - (b) - that because it subsequently appeared that the grievance procedure was not being pursued with any diligence he was as at 24 July entitled to revert to his original intention.  She points out that although on 6 July the Claimant was, through Mr Bown, still asking for a meeting - to be arranged as soon as possible - nothing had in fact occurred by 24 July, which was over two weeks later.  On balance, and again not without considerable hesitation, we are prepared to accept that that is indeed what the majority meant; and, if it is, that the judgment that the Claimant had not in all the circumstances affirmed the contract was one which was open to it.

43.	There is a submission at para. 20 (i) (a) of the Notice of Appeal that the conclusion that the Appellant “[was] simply going through the motions” and that “[its] approach was technical and obstructive” was not supported by the documentation or the oral evidence.  We are here concerned not with oral evidence but simply with the effect of the documents.  It seems to us to have been perfectly open to the majority to form the view that the terms of the Appellant’s various letters which we have set out, and their timing, were indeed technical and obstructive.  That is not necessarily the only possible view, but it is a view which it was open to the majority to take.  Our conclusion on this point also disposes of the points pleaded at paras. 20 (ii) (a)-(b) of the Notice of Appeal.  

44.	We should, for completeness, address a contention at paragraph 20 (i) (c) of the Notice of Appeal that: 

“The Claimant cannot have resigned in response to the “hostility towards [him] and his grievance” which the Tribunal found to be demonstrated in the email of 16.06.06, as he was not privy to this email.”

This is a plain misunderstanding of the Tribunal’s reasoning.  As the majority made clear, they relied on the e-mail in question – being, as we understand it, Ms Pabla’s e-mail to Ms Goodwill giving her account of the meeting of 14 June - simply as evidencing what her attitude was likely to have been at that meeting. 

45.	For those reasons we dismiss the appeal against the Tribunal’s finding of constructive unfair dismissal.

RACIAL DISCRIMINATION

46.	The broad issues as to the claim of race discrimination as regards element (c), are 

(1)	whether the Claimant was subjected to a detriment by the way in which the Appellant dealt with his grievance; and 

(2) 	whether, if so, that was on the grounds of his race, i.e. because he was an Arab.  

(Question (2) is sometimes sub-divided into two questions – the so-called “less favourable treatment” and “reason why” questions.  But they are, as has often been pointed out, two sides of the same coin.)  

47.	As regards question (1), our finding that the majority was entitled to prefer the Claimant’s account of the meeting with Ms Pabla means that there was unquestionably a detriment to him, and we need say no more about that aspect.  

48.	As regards question (2), it is necessary to set out the reasoning of the majority, which appears at paragraph 9.3.1 as follows:

“The majority judgment is that less favourable treatment occurred in relation to the way in which the claimant's grievance was treated.  The majority reasons for this aspect of the matter are set out under the heading of fundamental breach in connection with the grievance.  The majority are satisfied that the claimant has shown a prima facie case that such treatment was on the ground of his race and that the respondent has not been able to discharge the burden on it to prove that race was not the reason for the treatment.  The majority place particular weight on the differences in the way that Ms Nabi's grievance had been received - sympathetically - and then dealt with - thoroughly.  In contrast Ms Pabla had evinced an intention to be hostile towards the claimant's grievance and rather than dealing with that impartially, the majority accepted the claimant's evidence that Ms Pabla had said on 14 June that she would “personally represent Ms Nabi” if the claimant pursued his grievance further.  The majority also took into account as background evidence what they concluded to be a ban imposed by the respondent on Mr Nagi and a colleague speaking to each other in Arabic.  The majority also took into account what appeared to be the lenient treatment of Mr James, a white employee, who may have been viewing pornography on his computer and who had admitted tampering with the computers in the office as well.”

49.	The Notice of Appeal challenges that reasoning at paragraphs 17-19.  We will take those paragraphs in turn.  

50.	Paragraph 17 reads as follows:

“Having correctly identified the test for race discrimination and that the burden of proving such facts as to establish discrimination rested with the Claimant (8.3), the Tribunal erred in their application.”

This challenge is in entirely general terms and is presumably intended simply as introductory to the following paragraphs.  We note however that the Appellant expressly accepts that the Tribunal directed itself correctly itself as to the law, which makes a somewhat unpromising beginning for the particular submissions which follow.  

51.	Paragraph 18 reads as follows:

“Whilst stating that they were satisfied the Claimant had shown ‘a prime facie case that such treatment was on the ground of his race’ the Tribunal did not identify the facts which led them to that conclusion (9.3.1).”

This contention is plainly wrong.  The Tribunal did identify the facts in question, as indeed the following paragraph in the Notice of Appeal tacitly acknowledges.  

52.	Paragraph 19 of the Notice of Appeal reads as follows:

“Rather than making specific findings, they placed ‘particular weight’ on a number of features which were, in the Appellant's submission irrelevant and should not have been taken into account, namely (9.3.1):
(a)	The lenient treatment of Mr James Cook (a white employee) who admitted to viewing pornography on his computer and tampering with the office computers but did not face disciplinary action (9.3.1). The Tribunal unanimously dismissed the Claimant's complaints of race discrimination in relation to the institution of disciplinary action (9.1)  The treatment of Mr Cook's disciplinary was therefore, irrelevant in considering the treatment of the Claimant's grievance;
(b)	The ‘ban’ on the Claimant speaking to a colleague in Arabic (9.3.1).  This did not form part of the Claimant's claim, he had not raised a grievance in respect of it and such would have been out of time in any event.  Therefore, any such historic ban was wholly irrelevant;
(c)	The differences in the way in which Ms Nabi's and the Claimant's grievances were dealt with (9.3.1).  The Respondent was introducing a new Grievance Procedure at the time of dealing with the Claimant's grievance, therefore differences were inevitable.”

The submission that the factors identified at (a)-(c) were not “specific findings” but merely features on which the majority placed “particular weight” is simply playing with words.  It is evident that the factors in question were the factors on which the majority relied in coming to their conclusion that there was a prima facie case of race discrimination.  We turn to the specific challenges to those factors.  

•	As to (a), we do not understand this point.  The fact that the Tribunal had found that the institution of proceedings against the Claimant did not constitute racial discrimination is not a reason why the non-institution of proceedings against Mr Cook in relation to a matter only discovered subsequently could not be an indication of a discriminatory difference in treatment.

•	As to (b), again we do not understand this point.  The fact that the Claimant could have raised a grievance in response to the ban on himself and his colleague speaking in Arabic but did not do so does not mean that he cannot rely on the fact of the ban (which does not appear to be challenged) as an indication of prejudice against him as an Arab.  He did in fact expressly rely on it for that purpose in his witness statement.  At paragraph 9 of that statement he said this:

“In late 2005, I believe approximately September, Aziz and I were told by Andrew Martin, Sally Haywood and Hardeep that we were no longer allowed to speak Arabic in the office.  I was of course extremely offended by this and was even more offended by the fact that there were no restrictions put on employees of other races who were allowed to continue speaking both Urdu and Patwa.  I can only see this incident as an overtly racist act.”

	It appears that the Tribunal accepted that evidence and, as we have already noted, there appears to be no challenge to it.  It might be possible to think of reasons why such a ban might be entirely legitimate - employers will sometimes regard it as undesirable that members of a team should communicate in a language which the team overall does not understand - but there is no suggestion in the Notice of Appeal that any such explanation was advanced in the present case.  

•	As to (c), the Tribunal’s point was not about the details of the different procedure followed.  It was about the contrast between the evident vigour with which Ms Pabla pursued Ms Nabi’s grievance and the hostility which she expressed towards the Claimant’s.  That point, whatever weight one might or might not attach to it, is unaffected by the question of what precise procedures were in place at the particular time.  

53.	We are, therefore, unconvinced by the pleaded challenges.  It is right that we should say that we do not regard the reasoning of the majority on this important issue as very full, and not all of us are sure that we would ourselves have found that the facts referred to by the Tribunal (though it may be that these do not fully reflect the facts on which it relied) were sufficient to reverse the burden of proof.  But we can only intervene if an error of law is demonstrated, and we ought not to go behind the pleaded challenges.  In those circumstances we dismiss the appeal against the finding of race discrimination.