EAT/206/00 MR O AYOVUARE v THE LONDON BOROUGH OF GREENWICH [2001] UKEAT 206_00_2202

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 206_00_2202Case No Appeal No. EAT/206/00 EAT/76/00 EAT/339/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
EAT/206/00 MR O AYOVUAREAPPELLANTTHE LONDON BOROUGH OF GREENWICHRESPONDENTEAT/76/00 & EAT/339/00 THE LONDON BOROUGH OF GREENWICHAPPELLANTMR O AYOVUARERESPONDENT
Before
Mr Justice Charles Mr K EdmondsonDate 22 February 2001
[1]APPEARANCES For the London Borough of Greenwich MR P OLDHAM (of Counsel) Head of Legal Services London Borough of Greenwich 29/37 Wellington Street London SE18 6PW For Mr O F Ayovuare MR V ONUEGBO (Solicitor) MR JUSTICE CHARLES : Introduction We have before us an appeal and a cross appeal against decisions made by an Employment Tribunal sitting at London (South). The Extended Reasons for the main decision were sent to the parties on 24 September 1999. That decision related to cases 110342/98 and 2303881/98 brought by Mr Ayovuare (who we shall refer to as the Applicant) against the London Borough of Greenwich (who we shall refer to as the Council).[2]On 3 November 1999 the Chairman of the Employment Tribunal issued a Certificate of Correction under Rule 10(9) of the Employment Tribunals Rules of Procedure 1993 . This Certificate related to the "Decision" set out at the beginning of the Extended Reasons.[3]Initially paragraph (i) of that Decision had been in the following terms:
"(i) The Applicant was discriminated against on racial grounds."
This part of the Decision was appealed by the Council. The Certificate of Correction was issued after that appeal had been brought. The Applicant appealed against the Certificate of Correction.[4]We dealt with the appeal against the Certificate of Correction first. For reasons given during the course of the hearing we ordered, pursuant to Rule 10(9) and Section 35 of the Employment Tribunals Act 1996 that the decision set out at the beginning of the Extended Reasons should read as follows:
"(i) the Applicant was not discriminated against on racial grounds."
The remainder of that Decision is in the following terms:
"(ii) the Applicant was victimised contrary to section 2 of the Race Relations Act 1976; (iii) the Applicant was unfairly dismissed; (iv) the Applicant contributed to his dismissal to the extent of 40%; (v) a hearing to determine remedy will take place at 10.00 am on 8 October 1999 unless the parties inform the Tribunal that they have reached agreement."
[5]The hearing to determine remedy was heard on 8 October 1999 in accordance with that Decision. Both parties have appealed against the decisions made by the Employment Tribunal in respect of remedy. The Extended Reasons for those decisions were sent to the parties on 27 January 2000. Although those appeals were before us we did not hear argument on them because there was insufficient time available for us to do so. Accordingly, we adjourned those appeals.[6]The hearing before the Employment Tribunal lasted 12 days followed by two days in Chambers. It is clear from paragraphs 8 and 9 of the Extended Reasons that some problems arose during the course of the hearing.[7]We are grateful to the representatives of both the Council and the Applicant who appeared before us. With their help the issues that we have had to deal with have been more sharply focused than was the case when those issues were before the Employment Tribunal.[8]An additional problem for the Employment Tribunal was that the decision of the House of Lords in the Nagarajan case was reported in The Times after they had heard the evidence and their first day in Chambers. It is apparent from paragraph 17 of the Extended Reasons that the Employment Tribunal had reached conclusions of fact before that decision was reported and that they reconsidered them in the light of that decision and the further written representations of the parties. Our approach to the Extended Reasons[9]During the course of their submissions both sides relied on the decision in Meek v City of Birmingham District Council [1987] IRLR 251. The well known passage therein which is regularly cited is paragraph 8 of the judgment of Bingham LJ (with which Donaldson MR agrees). That paragraph has to read with the point Bingham LJ makes in paragraph 9 that he believes nothing he has said is in any way inconsistent with what Donaldson MR had said in earlier cases including Martin v Glynwed Distribution Ltd [1983] IRLR 198 relating to findings of fact. In our judgment this means that in deciding whether an Employment Tribunal has provided proper reasons a distinction falls to be drawn between what Bingham LJ refers to a "basic factual conclusions" or findings of primary fact and reasoning which would for example cover findings and conclusions based on inferences. It is to be noted that perhaps particularly in discrimination cases the "thousand pities" referred to by Donaldson MR in passage cited in Meek from UCATT v Brain [1981] IRLR 225 is now a very regular feature of appeals from Employment Tribunals.[10]Naturally we accept that in determining whether the Extended Reasons satisfy the test or standard described in the Meek case we should not read them strictly or literally and that we should take a broad and benevolent approach (see for example Lindsay v Alliance & Leicester Plc (EAT/1317/98 at paragraphs 29 to 50 and we have had regard to the cases mentioned in those paragraphs in addition to the Meek case).[11]In this case we also accept that the Employment Tribunal did not have an easy task.[12]In the Extended Reasons the Employment Tribunal, in our view helpfully and sensibly, divided up the claims made by the Applicant and dealt with them one by one. However and again in our view correctly, they make it clear that in considering each individual claim they did not consider it in isolation. At the beginning of paragraph 14 they say this:
" … the parties should note that we considered the issues, not in isolation but cumulatively, after we considered and understood the whole picture."
[13]It follows that it is necessary to read the Extended Reasons as a whole. In this judgment we shall not set out the whole of those Extended Reasons and we concentrate on particular parts of them. However we have considered those parts in the context of the Extended Reasons as a whole and in the context of the totality of the factual and legal issues before the Employment Tribunal. The issues on this appeal[14]These focus on the findings of the Employment Tribunal in favour of the Applicant. All of them are challenged by the Council.[15]Subject to the point made in paragraph 16 hereof there is no appeal or cross appeal by the Applicant against the claims that were dismissed by the Employment Tribunal. Thus, for example, there is no appeal before us against the rejection by the Employment Tribunal of the Applicant's claim that his dismissal was an act of direct racial discrimination, or discrimination by way of victimisation.[16]Following and as a result of our decision relating to the Certificate of Correction the remaining point on the cross appeal of the Applicant was that in respect of the claims where the Employment Tribunal found that the Applicant had been victimised, contrary to Section 2 of the Race Relations Act 1976 (the RRA), the Employment Tribunal should also have found that his claim for direct discrimination under Section 1 RRA succeeded. Alternatively the Applicant argued that the Employment Tribunal had not properly explained why the matters underlying their findings of victimisation contrary to Section 2 RRA do not also found a claim of direct discrimination under Section 1 RRA and thus why they dismissed those claims.[17]The Council appeals against:(a) the findings of discrimination by way of victimisation contrary to Section 2 RRA which are contained in paragraphs 14(4), 14(5), 14(9) and 14(15) of the Extended Reasons,(b) the decision of the Employment Tribunal to extend time in respect of the claims under the RRA (this is dealt with in paragraph 16 of the Extended Reasons),(c) the finding of unfair dismissal in paragraph 14(16) of the Extended Reasons, and(d) the findings as to the Applicant's contribution to his dismissal in paragraph 15 of the Extended Reasons.[18]In considering the findings of discrimination by way of victimisation contrary to Section 2 RRA it is also necessary to take into account paragraph 11 of the Extended Reasons where the Employment Tribunal dealt with an application to amend the Originating Applications. The most relevant paragraphs of the Extended Reasons and the Statement of the Applicant referred to therein The Extended Reasons "11 At the hearing Mr Meacham made an application to amend the claim to include the various matters which are identified at paragraphs 9 to 12 of the Applicant's statement. He said that their omission from the first or even the second application were an oversight. He agreed that they had not been raised at the Directions Hearing, nor at any stage prior to the commencement of the Full Merits Hearing. He argued that it would be just and equitable to extend time to include these matters, and that the Respondent would suffer no detriment if the Tribunal were to do so. Mr Cadoo opposed the application and pointed out that the Respondents would be gravely prejudiced. He said that the Applicant was familiar with Tribunal procedures and ought to have made the complaints before. If the amendments were allowed, it would lengthen the proceedings considerably because it would be necessary to prepare to meet these new claims, interview new witnesses and re-interview those who had already provided witness statements. After considering the matter in chambers, the Tribunal decided to allow a single amendment and to extend time to consider this matter on the grounds that in all the circumstances of the case, it would be just and equitable to do so. The amendment which was addressed as paragraph 13 of the Application (1100342/98) is as follows:
'I was wrongly subjected to an assimilation interview in April/May 1997. This was discrimination on racial grounds and victimisation' 14 (4) Did the 1995 panel exercise their discretion in favour of Kamella Madani? In 1995, following a job evaluation exercise, Ms Madani was advanced to spinal point 37 which happens to be the lowest point in the PO2 scale. In that evaluation exercise, her score was 65%. The Applicant relied on this to show that the insistence of a score of 80% was misleading since they were prepared to promote Ms Madani to PO2 on a score of 65%. The Respondents say that this was a simple mistake and that the Principal Surveyor, Mr Andrews, intended to upgrade her within the PO1 scale. Further, the Respondents say that this mistake was not discovered until the present proceedings began in 1998. In the circumstances they decided not to claw back the overpayment to Ms Madani. The Tribunal considered Ms Madani as a relevant comparator. We examined the scores that she achieved, compared to the Applicant. We note that in 1995, she was promoted to spinal point 37, after obtaining a score of 65% whereas the Applicant scored 66% in 1997 but remained on spinal point 35. On the face of it this amounts to difference in treatment. The Applicant had brought proceedings alleging racial discrimination and victimisation. Ms Madani did not. What is the Respondent's explanation? It is difficult to accept the explanation that it was a mistake. The Scheme involves progression on the basis of scores achieved in accordance with the requirements of the scheme. If it had been a mistake why did the same error not apply to the benefit of the Applicant. He scored 66% compared to Ms Madani's 65%. If she was placed on spinal point 37 why was the Applicant placed on spinal point 35? It was impossible for the Applicant to raise this matter in the previous proceedings because Ms Madani did not become a comparator until he himself scored 66% in 1997, after the Tribunal proceedings had been concluded. Furthermore, it was common ground that the Madani example was not known to either party and emerged only in the course of these proceedings, and not previously. The Respondents chose not to call Mr Andrews to explain how the mistake occurred. The Tribunal find that the Applicant had done a protected act by bringing proceedings before the Gleeson Tribunal. This was common knowledge on the part of the Respondents' managers. The Applicant was treated less favourably than Ms Madani. The Respondent's explanation that it was a mistake is unsatisfactory. The Applicant had made allegations against the Principal Surveyor before the Gleeson Tribunal. He could have been called to explain the 'mistake'
. The Applicant had raised an issue which called for an explanation. The Tribunal heard no satisfactory explanation of how the 'mistake' occurred; why or how it remained undetected for so long and why or how a similar mistake did not operate in the Applicant's favour when he scored a higher mark than Ms Madani. We draw the inference that he was victimised contrary to section 2 of the Act. (5) Did Mike Smith act unfairly and in a racially discriminatory manner or did he victimise the Applicant when he decided to investigate the Applicant's ARICS qualifications? At the Gleeson Tribunal's Remedy Hearing on 18 December 1996, the Applicant produced documentary evidence that he had obtained the ARICS qualification. Shortly thereafter, he presented the relevant documentary evidence to Personnel and had shown both Mike Smith and Laurie Browne his certificate. The Respondents state that the Applicant failed to follow proper procedures. He did not ask his line manager, Mr Browne, to sign the declaration for ARICS membership but instead asked Mr Lester Benjamin, the head of engineering, to do so. The Respondents say that Mr Benjamin made a false declaration. It was their case that they were entitled to make enquiries into the Applicant's ARICS membership and the circumstances under which it had been obtained. If the Respondents were of the view that Mr Benjamin made a false declaration by signing the Applicant's form, it was a serious matter for which some action was called for. No action was taken against Mr Benjamin. We find in the circumstances of this case that it was understandable that the Applicant would not ask his immediate line manager to sign the form, given the breakdown of trust between them. The application for assessment and election as a professional associate asked for proposers and seconders who must be fellows, professional associates or associates of the Institute of Chartered Surveyors. The Applicant proposed Mr Tolowali of Hackney Council, and Mr Rivers and Mr Morecroft of Greenwich Council as his seconders. The employer's declaration was signed by Mr Benjamin as principal or head of department. Mr Benjamin was not the Applicant's line manager and not head of the Applicant's department. If the Respondents regarded that as a serious matter, the manner in which they went about investigating the Applicant's conduct left a great deal to be desired. Mike Smith made a direct approach to the Institute asking them for confidential information about the Applicant's application. The Institute refused to provide that information without the Applicant's authority. Mr Smith initially misled the Tribunal by stating that he approached the Institute only after he had obtained the Applicant's authority to do so. He said that he was open about it adding 'I could have kept it quiet'. On further questioning, he admitted that he rang the Institute after he saw the certificate. He also admitted that he did so without informing the Applicant. He said that since Mr Laurie Browne did not know that the Applicant had applied to ARICS, he decided to investigate the matter because of the possibility that the ARICS qualification 'could have been obtained improperly'. This is an extremely serious matter. He was unable to provide a satisfactory explanation as to why if those were his concerns, he did not ask the Applicant to produce his current application. He was also unable to explain, once he saw the current application, why he did not seek any explanation from Mr Rivers or Mr Morecroft who seconded the application and Mr Benjamin who signed the employer's declaration. We found Mike Smith to be an evasive and unreliable witness. He knew that the Applicant had made a number of complaints of discrimination. He was hoping to obtain evidence that would discredit him as an employee. Given the way Mr Smith behaved, we do not believe him when he said that he was genuinely concerned to ensure that proper procedures were followed. We find that the manner in which Mike Smith investigated the validity of the Applicant's ARICS qualification amounted to an act of victimisation because the Applicant had brought proceedings against the Council. We find further that the manner in which Mike Smith acted on this occasion was extremely distressing to the Applicant. He suffered grave injury to his feelings. (9) Whether the Respondents discriminated against the Applicant or victimised him when they failed to treat his grievance against Laurie Browne under the discrimination, harassment and victimisation procedure instead of treating it as an issue that was part of the disciplinary investigation . The brief facts are that the Applicant had been warned on several occasions that he should not make private telephone calls or use the Council's photocopying facilities. He was warned on 13 March. On 23 March an incident took place when Mr Browne believed that he was working on private papers. These papers were confiscated by Mr Browne, as evidence with a view to carrying out an investigation. The Applicant threatened Mr Browne that he would be taking out a grievance under the Council's DHV procedure. The Tribunal heard a great deal of evidence on the appropriateness of the Respondent's actions in treating the grievance under the DHV procedure as being part and parcel of the disciplinary investigation. The Tribunal well understands employer's concerns that the moment they propose to take disciplinary action against an individual, that individual may then claim discrimination, harassment or victimisation and seek to use the DHV procedures, basically to subvert the operation of the disciplinary procedures. Accordingly, we understand the argument that where a DHV complaint is made after the initiation of disciplinary action an employer may be acting fairly and legitimately in some circumstances if he were to hold one investigation to dispose of all matters. However, the situation is not so clear cut where the DHV complaint either precedes the disciplinary investigation or occurs at the same time. We accept the Applicant's evidence that he threatened to use the DHV procedure before he was told that he would be subjected to a disciplinary investigation. We have also taken into account the importance of ensuring that employees who believe that there is an issue under the DHV procedures should be given the appropriate support and be enabled to bring their concerns to the attention of managers. It would frustrate the objective of any DHV procedure if the employers were to treat DHV complaints as part of a disciplinary procedure, particularly when the DHV complaint precedes the disciplinary notice. Such an approach will deter employees from using the procedure which is provided for under the Council's own policies and practices on equal opportunities. Furthermore, we have had regard to the Code of Practice for the Elimination of Racial Discrimination and the Promotion of Equality of Opportunity in Employment . Paragraph 1.2.2 of the Code provides appropriate guidance to employers and warns them against victimising employees who complain of racial discrimination. The Tribunal find that the Respondent's failure to deal with the Applicant's complaints against Laurie Browne under the DHV procedure amounted to less favourable treatment and victimisation. We reject their explanation that the DHV grievance came after the initiation of disciplinary action. We do not go so far as to find that his complaint against Laurie Browne was wholly well-founded. We consider that Laurie Browne's action in confiscating the Applicant's private papers was harsh and high-handed. However, we reject any suggestion that Laurie Browne threatened him with physical assault. We do not find this allegation to be credible. We understand why Mr Browne may have been concerned to obtain evidence that the Applicant was doing private work during office hours. However, we consider that the manner in which he went about it was inappropriate. It seems to the Tribunal that Mr Browne's actions are to be seen in the context of a general management view of a lack of trust in the Applicant following his success at the Gleeson Tribunal. Management were seeking evidence to use against the Applicant. But for his previous case he would have been treated differently. The Tribunal find that the Applicant was victimised contrary to section 2 of the Act. In reaching this conclusion we have taken into account the entire background and context in which this incident took place. There was a culture of suspicion, antagonism and ill will for which the managers, not just Mr Browne, must share responsibility. The Applicant's reaction to this culture was in turn one of suspicion and defensiveness which was seen as defiance of his manager. See issue (15). (11) Whether the Applicant was unfairly disciplined for continued abuse of office facilities The Tribunal find as a fact that there were a number of instructions issued to staff about the unauthorised use of Council facilities. The Applicant received memos including warnings to him that failure to comply with the instructions and advice could result in disciplinary action. The Applicant did not appear to have taken these warnings seriously. Therefore, it is not surprising that the Applicant's managers should consider that disciplinary action should be taken against him. The Tribunal have taken into account the Applicant's feelings at this particular period, that he was being discriminated against and victimised. This perception partly accounted for his reaction to warnings and the language that he used in some of his correspondence. Allowing for all that we still feel that his response to warnings about misuse of Council's facilities was inappropriate and unreasonable. The Applicant's managers were entitled to take disciplinary action against him. To that extent, his claims of discrimination and victimisation fail. We draw a distinction between the fact that disciplinary charges were brought and the manner in which they were brought, investigated and disposed of. That is a matter to be dealt with below. (15) Should the Respondents have separated the Applicant's DHV grievance from the disciplinary action for making unauthorised use of the fax and telephone? The Tribunal's findings under this head should be read together with findings under issue (9). The Respondent's witnesses accepted that in principle a grievance under the DHV procedure is a separate matter to formal disciplinary charges. Mr Yohai who conducted the disciplinary hearing said that when the Applicant objected to his DHV grievance being dealt together with the disciplinary charge he took advice from Human Resources. He was advised that they should be considered together. He accepted that advice in good faith. Mr Yohai said that the Applicant had made 138 telephone calls from 3 March to 23 March. The Tribunal find as fact that the Respondents were entitled to take disciplinary action against the Applicant for misusing Council's facilities particularly in relation to the telephones and faxes. However, the Applicant's DHV grievance was lodged before formal disciplinary charges were put to him. It was wrong in principle to deal with the two issues together. Mr Yohai was wrongly advised to do so particularly in view of the Applicant's objections. In failing to deal with the DHV grievance separately, the Applicant was being disadvantaged. We find that he was victimised by being denied the benefit of a separate hearing of his DHV complaint. (16) Was the Applicant unfairly dismissed? The Tribunal find that the Respondents have shown, under section 98(1), that the reason for dismissal was a reason relating to the Applicant's conduct. This is a potentially fair reason for dismissal under section 98(2), subject to the requirements of section 98(4) of the Act, which deals with the question whether a dismissal was fair or unfair. The Tribunal had to consider in addition to the question of the fairness of the dismissal, whether the dismissal itself and the way it was effected, amounted to direct racial discrimination or victimisation. The Tribunal took into account the whole of the background evidence and events leading up to the final disciplinary hearing and dismissal. We find the following on the balance of probabilities: (d) The Tribunal is satisfied that Mr Taranczuk carried out a thorough investigation into these disciplinary charges. The Applicant admitted that he had made 112 private calls, 43 of which were by using a linkline card. It was common ground that if the Applicant had used a linkline card it would have not cost the Council any money. However, the Council would have lost working time for the period that the Applicant was on the telephone. Mr Taranczuk did not believe the Applicant when he said that he had used the linkline card. He said that the Applicant had given inconsistent answers in the course of the disciplinary investigation. Mr Taranczuk found that not all the calls that were made by the Applicant were from his own workstation. However, the overwhelming evidence was that the Applicant did, by his own admission, make private calls during working time. The Applicant admitted sending a personal fax to the First Assist Group and receiving a fax from them. Accordingly, the disciplinary charges were proven. Mr Taranczuk conceded that the receipt by the Applicant of a reply from First Assist should not be seen in the same light as the first two issues because they could have sent him a fax even though he did not request that they do so. He was therefore prepared to give the Applicant the benefit of the doubt over the receipt of the fax. Therefore, we are left with two proven charges namely that he had made 131 calls of short duration in a six week period, and second, that he had sent a single personal fax. (e) Mr Taranczuk was correct in finding that the Applicant did breach the terms of the final written warning. Mr Taranczuk's view was that in accordance with advice from Personnel he had no option but to dismiss the Applicant. The Tribunal consider that this advice is not consistent with the principles under Section 98(4) in that it carried with it the real risk that the sanction of dismissal may not, in the particular circumstances, be within the range of reasonable responses having regard to the nature of the breaches and the explanations and mitigation offered by the Applicant. (f) The Applicant informed Mr Taranczuk that he had health problems which were aggravated by the fact of his son'' truancy. A significant number of calls were claimed by the Applicant to have been in connection with these difficulties. Given his unsatisfactory relationship with Mr Lawrie Browne he could not confide in him and that was why he did not seek prior authority. Mr Taranczuk did not believe the Applicant over the question of his son's truancy because some of those calls were made during school holidays. We consider that this line of reasoning is fundamentally flawed because no attempt was made to identify the particular calls relating to his son's truancy problems. Furthermore, where there is a serious and ongoing truancy problem it does not end at the end of term. There would still be a need to deal with the underlying problem either directly within the family or in communication with the school or the local authority. An examination and understanding of this aspect of mitigation was necessary before discounting it as a factor. (g) Mr Taranczuk accepted that if the Applicant had advanced some special reasons by way of mitigation, he would have returned to Personnel for further advice. We find that he failed to do so simply because he disregarded the Applicant's mitigation. He did so without a proper enquiry and this part of his investigation was fundamentally flawed. That leaves the question as to why he had done so. (h) When Mr Taranczuk was asked what weight, if any, would he give to mitigation he found himself in difficulty given the clear advice he had been given by Personnel. Although Mr Taranczuk discounted the mitigation advanced by the Applicant we are not satisfied that he would have done so in such a dismissive fashion if he had been advised by Human Resources that whether the Applicant was dismissed or not for a proven breach of the final written warning would depend on the particular circumstances including any mitigation advanced i.e. the section 98(4) principles. (i) The Tribunal find in relation to the claim of unfair dismissal that the Respondents had formed a genuine belief in the Applicant's misconduct and that Mr Taranczuk carried out a proper investigation in relation to the question whether there had been a breach of the final written warning. However, Mr Taranczuk's hands were tied by the advice given by Personnel. In those circumstances he did not give proper weight to the mitigation offered by the Applicant. The Tribunal consider, having regard to the principles under section 98(4) of the Employment Rights Act 1993 that the sanction of dismissal was not within the range of reasonable responses. (j) The Tribunal found Mr Taranczuk to be a firm but fair manager. He was sensitive to issues of racial discrimination and understood how such discrimination could take place in the working environment. Having heard Mr Taranczuk and having formed a view about him as a manager and about his personal convictions, the Tribunal is satisfied that had he been properly advised as to the import of Section 98(4) he would have made a greater effort to examine the Applicant's explanations. Had he done so he might well have felt that it was not appropriate in the circumstances to dismiss. It is not for the Tribunal to substitute its judgment for that of a reasonable employer. We are not satisfied that Mr Taranczuk would have considered dismissal inevitable had he not been so advised by Human Resources. His decision, which was consistent with the advice he was given, was, in all the circumstances, unfair. (17) Whether the decision to dismiss was a decision made on racial grounds We find that it was not made on racial grounds. Mr Taranczuk decided to dismiss because he was advised by Human Resources that that was the only sanction available to him. He found the charge proven and therefore decided to dismiss. There is no basis to support an inference that Mr Taranczuk's decision to dismiss was on racial grounds or because of victimisation nor is there evidence to support an inference that the advice given by Human Resources to Mr Taranczuk was on racial grounds or a desire to victimise the Applicant. (18) Was the dismissal an act of victimisation because the Applicant had brought proceedings in 1993 and/or had made allegations of racial discrimination? The Tribunal find that insofar as the decision to dismiss was a decision taken by Mr Taranczuk it was not taken either on racial grounds or on grounds that the Applicant had brought proceedings or had made allegations of racial discrimination against the employer. BLAMEWORTHY CONDUCT 15 Having found the dismissal to be unfair the Tribunal considered to what extent did the Applicant contribute to his dismissal in a blameworthy sense. We have had regard to leading authorities including: NELSON v BBC (No.2) [1979] IRLR 346 CA MORRISON v AMALGAMATED TRANSPORT & GENERAL WORKERS UNION [1989] IRLR 361 NICA POLENTARUTTI v AUTOKRAFT LTD [1996] IRLR 457 EAT We consider that the Applicant was told on several occasions in no uncertain terms that the employers took a strict view about the misuse of Council facilities. He had received a final written warning. The fact that that warning was under appeal did not entitle him to continue to act in breach of instructions or the terms of that warning. He committed further breaches of the final written warning knowing that the Respondents had taken a strict view of such breaches and knowing as any reasonable employee would know that he had to be careful about his conduct since he was being watched. The Tribunal therefore has some sympathy for Mr Taranczuk's view that the Applicant displayed a degree of defiance. The Tribunal consider that there was blameworthy conduct on the part of the Applicant and his contribution is assessed at 40%. The Tribunal consider that in light of clear evidence that the Applicant had breached the final written warning it could not be said that the bringing of the final disciplinary charge was in any way motivated by racial considerations. TIME LIMITS 16 It was clear from the first day of the hearing that there were a number of allegations that related to events that occurred more than three months before the presentation of the first Originating Application. We decided that no useful purpose would be served by attempting to determine as a preliminary issue questions relating to time limits. In a case of this kind we considered that it was only after the whole of the evidence was heard that we would be in a position to decide whether or not there was a continuing regime of discrimination or whether there were several discrete acts some of which were out of time. The Tribunal have decided that looking at all the facts and circumstances of the case it would be just and equitable to extend time under section 68(6) of the Act to deal with all the allegations by the Applicant and which were fully explored in evidence." The Statement of the Applicant Paragraph 11 of the Statement referred to in paragraph 11 of the Extended Reasons is in the following terms:
"11. In its Grounds of Resistance in case 1100342 the Respondent makes the point that the threshold for PO2 is 80% and that ARICS alone is worth only 40%. But how is this the case when K.Madani was upgraded to Spine 37 which is PO2 in March 1995 assessment on a score of 65% including a percentage for her BSc degree. It is worth recording that in that same assessment I scored 51% and I was asked to remain at spine 34 SO2 grade. PO1 grade starts at 50%. I refer the Tribunal to the Grading Structure / Salary Scales [Bundle 1 pages 183-185]."
The extension of time[19]As is made clear by Hutchison v Westward Television Ltd [1977] ICR 279, the discretion to extend time to bring claims under Sections 1 and 2 of the RRA is a wide one and the task of an Appellant against a decision by an Employment Tribunal either to extend or to refuse an extension of time is a heavy one. In the Hutchison case Phillips J said this at page 282:
"Because it is such a wide discretion conferred upon an industrial tribunal, the task which an appellant has in such a case is a heavy one. Really he must show, if he is to succeed upon appeal, that the industrial tribunal demonstrably took a wrong approach to the matter, or that they took into account facts which they ought not to have done, or that they failed to take into account facts which they should have done, or, as a last resort which is always open upon an appeal, that the decision was so unreasonable in all the circumstances that no reasonably instructed tribunal could have reached it."
[20]That passage is a well known one and was cited in a case referred to by the Solicitor acting for the Applicant, namely Berry v Ravens Board NHS Trust [1993] ICR 871.[21]It was submitted on behalf of the Applicant that his assertions of direct discrimination and discrimination by way of victimisation were relevant to his claim for unfair dismissal. Indeed we repeat that one of his claims was that the dismissal amounted to direct discrimination and further or alternatively discrimination by way of victimisation. These claims were dismissed by the Employment Tribunal. The Applicant's position was that the history of his claims relating to discrimination was relevant as background to those claims.[22]We can see why this could have led the Employment Tribunal to decide to hear all of the background before deciding whether or not to extend time in respect of the earlier claims under the RRA. It is however not clear to us what continuing regime or act was being alleged and although this possibility is referred to in paragraph 16 of the Extended Reasons it is not explained therein. Further the Applicant's case as to this was not explained to us.[23]Not only do the Extended Reasons not explain what continuing regime or act was being alleged, paragraph 16 of the Extended Reasons gives no reasons at all for the decision to extend time. This mirrors the approach in paragraph 11.[24]In our judgment correctly the Council did not argue that the Employment Tribunal did not apply the correct test. In this respect it is to be noted that they did refer to the correct section. Further, in our judgment correctly, the Council did not argue that the decision was perverse and accepted that it was one which the Tribunal could have reached.[25]The basis of the appeal was that the lack of reasoning meant that it was impossible to see what matters the Employment Tribunal had taken into account and how they had weighed them in reaching this decision.[26]We agree. In our judgment it is simply not good enough for an Employment Tribunal to take the extremely broad approach taken by this one in the last sentence of paragraph 16 of the Extended Reasons. As a result of this approach we and the parties are simply left to guess why the Employment Tribunal concluded that it was just and equitable to extend time to enable the background to the claim to unfair dismissal to found free-standing claims under the RRA. We comment that if they had reached the opposite conclusion in the last sentence of paragraph 16 of the Extended Reasons by adding the word "not" we would be equally in the dark.[27]We can see why the Employment Tribunal might have reached the conclusion it did. However equally we can see why the Employment Tribunal might have reached the opposite conclusion.[28]It follows that on the information we have we cannot ourselves properly exercise the discretion relating to extension of time. For example, we do not know the reason why the Applicant said he did not bring his free-standing claims earlier. As is recorded in paragraph 11 of the Extended Reasons he was familiar with the relevant time limits and the procedure of Employment Tribunals. Indeed, the refusal to amend does not sit easily with the unexplained decision to extend time.[29]Before us it was asserted on behalf of the Applicant that the reason why the claims were not brought earlier was that the relevance of Ms Madani as a comparator did not become relevant until the Applicant himself scored an equivalent percentage (see the end of the first paragraph of paragraph 14(4) of the Extended Reasons). However this reason could not relate to the other claims in which she was not advanced as a comparator. Further, and in any event, the Employment Tribunal refused leave to amend to add a claim based on the use of Ms Madani as a comparator (as to this see further below).[30]It follows in our judgment that the appeal against the decision of the Employment Tribunal to extend time succeeds and this issue must be remitted.[31]We confess that we have reached this conclusion with considerable reluctance and are of the view that it was unfortunate that the Employment Tribunal failed to give any reasons for this decision.[32]We shall deal later with the question whether or not this issue should be remitted to the same or to a different Employment Tribunal. General approach to the appeal relating to the findings that the Applicant was a victim of discrimination by way of victimisation and the Applicant's cross appeal in respect of the matters which found those claims[33]In the Extended Reasons the Employment Tribunal set out the relevant authorities relating to claims under Sections 1 and 2 RRA but do not say by reference to them, or otherwise, the test or approach that they have taken in making their findings of fact and reaching their conclusions. For example, nowhere do they set out the relevant statutory questions or how they have answered them. Also they do not explain what, if any, differences arose in their thinking and findings as a result of the decision of the House of Lords in the Nagarajan case. Prior to that decision the law, as established by the Court of Appeal, was that conscious motivation was necessary to establish discrimination by way of victimisation. In our judgment the Extended Reasons show that when assessing the facts the Employment Tribunal had close regard to the conscious motivation of the relevant employees of the Council.[34]In accordance with their approach on time limits the style of the Extended Reasons in many places is simply to make bald findings without reasoned explanation. In our judgment this is an unfortunate approach because it gives rise to the overall question whether the Extended Reasons properly demonstrate that the Employment Tribunal applied the correct legal approach and did not, for example, in their overall approach fall into the error pointed out in the Zafar case of thinking that unreasonable (and even extremely unreasonable) behaviour does not establish discrimination.[35]In our judgment there are a number of passages in the Extended Reasons that can be referred to to support an argument that the Employment Tribunal did make this error of law in their general approach.[36]However, as was pointed out to us, this was an experienced Tribunal who referred to the Zafar case which makes it clear that Employment Tribunals should consider and answer the relevant statutory questions and the test is not one of reasonableness. It would therefore be surprising if this Tribunal had not, in fact, had regard to the relevant statutory questions or had erred in law by taking a general approach (and thus one that related to all the claims of discrimination) based on unreasonableness or the general meaning of the word "victimisation".[37]Neither side asserted that this was the case. Having regard to this and the express reference by the Employment Tribunal to the relevant cases we have concluded that the Extended Reasons do sufficiently demonstrate that the Employment Tribunal had regard to the relevant statutory test and that we need to look at their treatment of each claim in this light.[38]We pause to add that if we had not reached this conclusion but had decided that the overall approach of the Employment Tribunal was flawed because the Extended Reasons did not give sufficient indication that they had applied the correct statutory test, it would have meant that we would have called for further submissions to enable us to give proper consideration to the possibility that, notwithstanding the present absence of an appeal by the Applicant against the dismissal of some of his claims, those dismissals should also have been set aside and remitted to a new Employment Tribunal. In our judgment it is arguable that if we had come to the conclusion that read as a whole the Extended Reasons demonstrated that the Employment Tribunal failed to apply the correct statutory tests this conclusion would apply "across the board" and the Applicant should be given an extension of time to appeal against, for example, the dismissal of his claims of discrimination based on his dismissal. The findings of fact made by the Employment Tribunal[39]The Employment Tribunal is the fact finding body. In this case it heard a great deal of evidence over a number of days.[40]As we have mentioned during the days that they heard the evidence to succeed on his claim for discrimination by way of victimisation the Applicant had to establish conscious motivation.[41]It is apparent that in general terms the Employment Tribunal had a difficult fact finding exercise to perform, particularly in connection with causation. This was because, as they point out, there were a number of difficulties and some considerable antagonism between the Applicant on the one hand and his Managers on the other. There were disputes as to the reasons for these difficulties and such antagonism. However as we read them the Extended Reasons make findings of fact as to conscious motivation and thus causation in respect of the acts complained of having regard to that background and the competing arguments as to the reason or reasons why the acts were done.[42]In our judgment a fair reading of the Extended Reasons shows that one of those findings of fact was that the Applicant's race and the existence of the protected act was not a cause or a significant cause of the final warning given to the Applicant concerning the private use of Council facilities and the disciplinary process leading to his dismissal. The Employment Tribunal deal with causation in respect of such matters in a number of places in the Extended Reasons and, in our judgment, the Extended Reasons show a consistent finding that the Applicant's race and the existence of the protected act were not a cause or a significant cause of the disciplinary process. That finding, of course, founded the rejection of the claims that the Applicant's dismissal constituted direct racial discrimination and further or alternatively discrimination by way of victimisation.[43]These findings contained in paragraphs 14(17) and (18) of the Extended Reasons are (like other findings) not fully explained or reasoned. However, in our judgment, by reason of the findings of fact relating to the final warning and the disciplinary process the parties know from these findings of fact and the statutory questions posed by Sections 1 and 2 of the RRA why the Employment Tribunal dismissed these claims.[44]In our judgment this example demonstrates, or supports the view, that in deciding the issues raised on this appeal in respect of the claims made under Sections 1 and 2 RRA our approach should be that:(a) generally the Employment Tribunal did not fail to consider and apply the correct statutory tests and approach, and(b) when there is a lack of full reasoning as to how they did so we should have regard to the findings of primary fact made by the Employment Tribunal (and thus their basic factual conclusions) and ask whether they support the conclusion reached and, if so, whether in all the circumstances of this case the relevant findings of fact show the parties why they won and lost and, if not, whether the relevant findings of fact have the consequence that an Employment Tribunal properly directing itself would, or could not, have reached the same answer (see Kapadia v London Borough of Lambeth [2000] IRLR 699 and in particular paragraphs 18 and 19 of the judgment of Schiemmann LJ). The statutory tests for direct racial discrimination and discrimination by way of victimisation[45]These are set out in sections 1 and 2 RRA. Both sections pose a single question that can conveniently be divided into its constituent parts. The single questions are:(a) Has the complainant been treated less favourably on racial grounds? (see Zafar v Glasgow City Council [1998] IRLR 36 )(b) (Before the decision of the House of Lords in the Nagaragan case) Has a person consciously treated the complainant less favourably than other because (or by reason of the fact that) the complainant has done a protected act?(c) (After the decision of the House of Lords in the Nagaragan case) Has the complainant been less favourably treated than others because he has done a protected act? Those questions can be conveniently divided up. The first part of all the questions is "less favourable treatment" which involves a comparison (referred to by Mummery LJ in Marks & Spencer Plc v Martins [1998] ICR 1005 at 1019 C/D as the compulsory comparison). The second part of the questions are respectively "racial grounds" and "protected act" and relate to the reason for the less favourable treatment.[46]In our judgment in some cases these questions merge or the answer to one can provide the answer (or most of the answer) to the other. For example where there is an actual comparator by reference to whom less favourable treatment is established and it is found by an Employment Tribunal that the only difference between him and the complainant is one of race or the existence of a protected act it is likely (if not inevitable) that it will be obvious that it should be (or was) inferred by an Employment Tribunal that the reason for the less favourable treatment was that difference. Also if there is a finding of conscious motivation by reference to a protected act for an action which is to the complainant's detriment it may be clear that an Employment Tribunal have (or should have) concluded by reference to a hypothetical comparator that the complainant was less favourably treated. In our judgment these views are supported by the cases which establish that some acts are "race or sex specific" (e.g. harassment on racial grounds) and in those cases a comparison is not necessary (see R v Birmingham City Council ex parte Equal Opportunities Commission [1989] IRLR 173 and Burton v DeVere Hotels [1996] IRLR 598 at 598).[47]The points made in the preceding paragraph do not mean that even in such cases it is not sensible, better and generally appropriate for an Employment Tribunal to explain there conclusions by reference to the two parts of the single statutory question identified in the cases. But in our judgment particularly where (as here) it is not asserted by either side that the Employment Tribunal were not aware of the statutory tests those points can lead to the conclusion that their Extended Reasons satisfy the Meek test even though they do not deal expressly with one of those parts of the single statutory question. The finding in paragraph 14(4) of the Extended Reasons[48]A free-standing point arises in respect of this finding having regard to the rejection by the Employment Tribunal of the Applicant's application to amend (see paragraph 11 of the Extended Reasons).[49]On the information before us, in paragraph 11 of the Extended Reasons the Tribunal record their rejection of an application to amend to add a claim on the basis considered in paragraph 14(4) of the Extended Reasons and thus one based upon Ms Madani as a comparator.[50]In any event the Applicant through his Solicitor did not point to any part of the two Originating Applications (or any allowed amendment) upon which such a claim could be founded.[51]In reliance on the last sentence of the first paragraph of paragraph 14(4) of the Extended Reasons the Solicitor representing the Applicant submitted that the basis of this claim had emerged during the course of the hearing and, as we understood him, (although he did not say so) submitted that the Employment Tribunal allowed this claim on this basis without the need for any formal amendment. However the sentence he relied on in that submission refers to the "proceedings" rather than the hearing and the Applicant's statement (cited above) shows that the relevance, or potential relevance, of Ms Madani was raised in response to the grounds of resistance in Originating Application number 1100342.[52]Given the rejection of the formal application to amend to base a claim on a comparison with Ms Madani, in our judgment it was unfair and an error of law for the Employment Tribunal to treat evidence relating to Ms Madani as anything other than background and to reach a finding of discrimination by way of victimisation based thereon without expressly raising the issue of amendment again and dealing with it.[53]In our judgment in the absence of an amendment (or a clear finding that the Employment Tribunal were going to permit the Applicant to base a claim on a use of Ms Madani as a comparator) the Employment Tribunal were not entitled as a matter of law to make a finding of liability based thereon (see for example Chapman v Simon [1994] IRLR 124, at 128 and 129, Nagaragan v London Transport [1999] IRLR 79 at 76 (this part of the decision of the Court of Appeal is not affected by the decision of the House of Lords) and in the field of disability discrimination Clark v Novacold Ltd [1999] ICR 951 at 966).[54]We add that in the absence of a reversal of the refusal to amend and thus, so long as the allegations relating to Ms Madani were only relevant as a matter of background, it was unfair and an error of law by the Employment Tribunal to make findings on the basis of the point that Mr Andrews was not called as a witness or that the mistake alleged by the Council was not fully explained. This is particularly so given the points made on behalf of the Council and recorded in paragraph 11.[55]We add that we note that in paragraph 14(3) of the Extended Reasons the Employment Tribunal deal with a complaint under the heading whether two employees of the Council "changed the goal posts". We note that this expression is used in paragraph 10 of the Applicant's Statement which founded his application to amend which was refused. It seems to us that it may well be that when the Employment Tribunal came to consider the facts dealt with in paragraphs 14(3) and (4) of the Extended Reasons they forgot that they had refused amendment to allow these matters to found claims and that they were considering them only by way of background. The Applicant's claim for direct racial discrimination under Section 1 RRA in respect of the this paragraph[56]It is not clear what, if any, argument the Applicant had that a comparison with Ms Madani founded a claim for direct racial discrimination under Section 1 RRA. However, in any event (as with the claim for discrimination by way of victimisation) in the absence of such a claim being included by way of formal or informal amendment the Employment Tribunal could not lawfully make a finding of direct discrimination based on it.[57]Accordingly in our judgment the Council succeeds in its appeal against the finding of discrimination by way of victimisation contained in paragraph 14(4) of the Extended Reasons and the Applicant's cross appeal in respect of this paragraph (namely that it should also have contained a finding of direct discrimination) also fails.[58]We add, because we heard argument on it, that although we accept that the fact that different employees of the Council made the decisions in respect of Ms Madani and the Applicant does not mean that there was insufficient nexus between the treatment of Ms Madani and the Applicant to make Ms Madani a proper comparator. We nonetheless agree with the submission made on behalf of the Council that the reasoning in paragraph 14(4) as to why the Employment Tribunal concluded that Ms Madani was a relevant comparator is deficient. The similarity in their scores has the effect that it would be appropriate to consider whether Ms Madani was a relevant comparator but does not necessarily lead to that result. Given the finding that there was no automatic progression or promotion on the basis of an ARICS qualification (as the Applicant had contended) whether there was a mistake, and what that mistake was, needed to be considered before it could be established whether Ms Madani was a relevant comparator. The claim in paragraph 14(5) of the Extended Reasons[59]The grounds of appeal in respect of this finding advanced by the Council were that the Employment Tribunal erred in making it without any, alternatively any sufficient, consideration of whether Mr Smith(a) treated the Applicant less favourably than he did or would have treated others whose circumstances were not materially different but who had not done a protected act, and if so(b) whether the fact that the Applicant had done a protected act was the reason, or a significant reason, for the treatment afforded him. This is therefore an argument that in considering this claim the Employment Tribunal did not correctly apply the statutory test or do not adequately explain their reasons for reaching the conclusions having regard thereto. This attack is focused on this claim and understandably (because the Council won on many of the other claims) is not a general attack and was not supported by allegations of similar failings in respect of other claims (which the Council won on).[60]Additionally it was asserted that the finding was made without the Employment Tribunal properly or sufficiently identifying the primary facts from which an inference could properly be drawn of victimisation or the reasons why, in the circumstances, the inference of victimisation was the proper inference to be drawn.[61]We repeat that in our judgment the findings of fact in this paragraph need to be read in the context of the Extended Reasons as a whole and thus, for example, in the context of the findings made in respect of the disciplinary process leading to the Applicant's dismissal and the conclusion that that dismissal was not an act of direct racial discrimination or discrimination by way of victimisation.[62]In our judgment when it is read in context this paragraph of the Extended Reasons contains a finding of fact that Mr Smith took the course he did because of the protected act. An alternative way of putting this is, but for the protected act Mr Smith would not have acted as he did. Further in our judgment a fair reading of this finding is that it is a finding of conscious motivation. As we read it the use by the Employment Tribunal of the word "victimisation" in the last unnumbered subparagraph of paragraph 14(5) is a use of the word with regard to its general meaning rather than in its statutory sense.[63]We accept that the language of this paragraph can be justly criticised, particularly as to its reasoning by reference to the statutory question and its constituent parts. But having regard to our general approach we have concluded that it contains a clear finding of primary fact that Mr Smith was consciously being vindictive because of the existence of the protected act and therefore that the existence of the protected act was the conscious reason or motivation for the steps that he took.[64]Further in our judgment those acts as found by the Employment Tribunal are (or are akin to) harassment because of the protected act.[65]On the general approach we have taken and having regard to the points made in paragraphs 45 to 47 above in our judgment these findings of primary fact in conscious motivation and as to the nature of the acts:(a) answer the statutory question relating to the claim for victimisation by way of discrimination in the circumstances of this case, and(b) tell the parties why they won and lost.[66]By reference to the arguments advanced by the Council. Firstly we repeat that in our judgment the finding on conscious motivation is a finding that the protected act was the reason for the treatment afforded to the Applicant.[67]Turning to less favourable treatment. If the approach taken recently by the Court of Appeal in Chief Constable of West Yorkshire Police v Khan [2000] IRLR 324 is applied, it seems to us that there is no need to compare the position of the Applicant with an actual or hypothetical comparator who has made complaints or issued proceedings of a different type. Al that would be needed would be to consider the position of another employee who notified Personnel and thus the Council that he had obtained the ARICS qualification. The Khan case was not decided until well after the Employment Tribunal decided this case and therefore it is not a case which the Employment Tribunal could have had in mind. We are also aware that the decision in the Khan case is presently subject to an appeal to the House of Lords.[68]On the basis that such appeal were to be successful and therefore there was a need to show that Mr Smith would have treated a person who had made a complaint or issued proceedings of a different type differently and thus show "a race connection" (see again the Lindsay case) in our judgment a fair reading of the Extended Reasons shows that it is clear that the conclusion reached by the Employment Tribunal was that he would have done.[69]In this context we are very aware that there is no express mention of an actual or hypothetical comparator and thus to the "compulsory comparison" (see the Martins case) but in our judgment when the Extended Reasons are read as a whole it is inherent in the finding of conscious motivation (and the subsidiary finding that the Employment Tribunal did not believe Mr Smith when he said that he was genuinely concerned to ensure that proper procedures were followed) together with the finding as to the nature of Mr Smith's actions that the Employment Tribunal were of the view that the Applicant had been less favourably treated because he had done the protected act and were of the view that the Applicant was treated less favourably than a hypothetical comparator would have been.[70]In our judgment this conclusion is also supported by the reference elsewhere to (and thus the finding of the existence of) the culture of suspicion and antagonism of management and suspicion and defensiveness of the Applicant and the conclusions reached by the Employment Tribunal as to the motivation of others in respect of other claims made by the Applicant.[71]We therefore dismiss the Council's appeal against the finding of discrimination by way of victimisation in paragraph 14(5) of the Extended Reasons. The Applicant's claim for direct racial discrimination under section 1 RRA in respect of this paragraph[72]The heading to paragraph 14(5) refers to such a claim but the body of the paragraph does not deal with it.[73]However in our judgment the findings of fact which found the conclusion that the Council were guilty of discrimination by way of victimisation and explain why this finding was reached also demonstrate why the Employment Tribunal concluded that these actions of Mr Smith did not found a claim for direct racial discrimination.[74]This is because the Employment Tribunal found that the conscious reason for the less favourable treatment was the existence of the protected act and not the Applicant's race.[75]In any event, in our judgment in reaching that finding the Employment Tribunal did not take the approach in the Khan case and therefore had regard to "the race connection" in reaching its conclusion that the Council was guilty of discrimination by way of victimisation. This means that in the circumstances of this case any claim for direct race discrimination that could be based on the establishment of such "race connection" is subordinate to and is subsumed in the finding of discrimination by way of victimisation. Put another way it adds nothing and has no separate life of its own on liability or in respect of quantum.[76]Accordingly we dismiss the Applicant's appeal in respect of paragraph 14(5) of the Extended Reasons. The decision in paragraph 14(9) and 14(15) of the Extended Reasons[77]In paragraph 14(15) the Tribunal state that their finding should be read together with the findings under paragraph 14(9).[78]It was put to us that these paragraphs deal with only one issue. We agree that their headings indicate that this is the case. However in our judgment a closer reading of paragraph 14(9) shows that it is in fact dealing with two issues. The first was the failure of the Council to deal with the Applicant's complaints against Mr Browne under the DHV procedure and the second is Mr Browne's actions which gave rise to that complaint. Paragraph 14(15) is dealing with the separation of the DHV grievance procedure from the disciplinary action and thus the same point as the first point dealt with in paragraph 14(9). "The DHV procedure"[79]In paragraph 14(9) the Employment Tribunal state:
"The Tribunal find that the Respondent's failure to deal with the Applicant's complaints against Laurie Browne under the DHV procedure amounted to less favourable treatment and victimisation. We reject their explanation that the DHV grievance came after the initiation of disciplinary action."
The remainder of the reasoning in paragraph 14(9) is related to Mr Browne's actions rather than the decision to deal with the DHV procedure at the same time as the disciplinary procedure.[80]Paragraph 14(15) contains the following finding:
"The Respondent's witnesses accepted that in principle a grievance under the DHV procedure is a separate matter to formal disciplinary charges. Mr Yohal who conducted the disciplinary hearing said that when the Applicant objected to his DHV grievance being dealt [with] together with the disciplinary charge he took advice from human resources. He was advised that they should be considered together. He accepted that advice in good faith. … It was wrong in principle to deal with the two issues together. Mr Yohal was wrongly advised to do so particularly in view of the Applicant's objections."
There is no suggestion in that finding, and it was not submitted to us, that there was any suggestion before the Employment Tribunal that the advice given to Mr Yohal was caused, or contributed to by, the Applicant's race or the existence of the protected act.[81]In our judgment the finding in paragraphs 4(15) and (9) that the failure to deal with the Applicant's complaints against Lawrie Browne under the DHV procedure separately to the disciplinary procedure cannot stand with the finding of fact in paragraph 4(15) as to the reason why this occurred.[82]Given that finding, namely that the Applicant's treatment in this respect had nothing to do with either his race or the protected act in our judgment any Employment Tribunal properly directing itself would dismiss the Applicant's claims that the failure of the Council to deal with his complaint against Mr Browne under the DHV procedure separately and to deal with that complaint together with the disciplinary action taken amounted to either(i) direct racial discrimination under Section 1 RRA or(ii) discrimination by way of victimisation under Section 2 RRA. Accordingly we can deal with this claim ourselves (see again the Kapadia case)[83]It follows that we allow the Council's appeal against the finding that this amounted to discrimination by way of victimisation and dismiss the Applicant's appeal against the dismissal of his claim for direct racial discrimination based upon this matter. The remaining finding in paragraph 14(9) of the Extended Reasons[84]In our judgment the last two sentences of the penultimate unnumbered paragraph within paragraph 14(9), namely: "Management were seeking evidence to use against the Applicant. But for his previous case he would have been treated differently." when read in context are a finding that but for the protected act Mr Browne would not have confiscated the Applicant's papers in the way that he did and that Mr Browne's conscious motivation or reason for taking this action was the existence of the protected act.[85]The findings in this paragraph focus on the manner in which Mr Browne confiscated the papers and in our judgment are findings of harassment (or of acts akin to harassment) because of the protected act.[86]In our judgment, albeit that the Employment Tribunal are less critical of Mr Browne than they were of Mr Smith, and the findings in respect of these actions of Mr Browne are less clear the findings as to Mr Browne's actions and his conscious motivation for them are equivalent to the findings reached in respect of Mr Smith in paragraph 14(5).[87]For equivalent reasoning to that set out in respect of the finding in paragraph 14(5) of the Extended Reasons we dismiss the Council's appeal against this finding of discrimination by way of victimisation and the Applicant's appeal in respect of the Employment Tribunal's dismissal of his claim for direct racial discrimination under Section 1 RRA in respect of this matter. Unfair dismissal and the Applicant's contribution to his dismissal[88]In our judgment these issues are connected because the reasoning which founds the Employment Tribunal's conclusion as to the first relates to mitigation.[89]In our judgment there are inconsistencies in the findings of fact made in paragraph 14(16)(e) to (i) which are highlighted in the first two sentences of subparagraph (g). In our judgment the finding that Mr Taranezuk failed to return to Personnel for further advice because he disregarded the Applicant's mitigation is inconsistent with and cannot stand with the conclusions of the Employment Tribunal that he did not believe the explanations advanced by the Applicant. In this context it needs to be remembered that the Employment Tribunal conclude that following a fair and thorough investigation in which Mr Taranezuk did not believe the Applicant had used a linkline card to make the telephone calls, he had found that the Applicant had made 131 calls of short duration in a six week period. A significant number of these had been made in the context of his son's truancy and it follows that a significant number of them had not. It is unclear what calls the Applicant asserted he had used a linkline card to make.[90]Further it seems to us that the reasoning of the Employment Tribunal as to why Mr Taranezuk's rejection of the Applicant's evidence relating to his son's truancy is flawed is based on their own views, or supposition, rather than evidence. The conclusion of the Employment Tribunal that the investigation by the Council in respect of mitigation was flawed is at the heart of their reasoning for the conclusion that the dismissal was unfair.[91]In our judgment the reasoning of the Employment Tribunal concerning mitigation demonstrates that they erred in law because:(a) the inconsistency between that conclusion and the findings as to the investigations that had been carried out and the views reached by the investigator as to mitigation have the consequence that they have not properly explained their reasons, and(b) in reaching it the Employment Tribunal are substituting their own views for that of the employer contrary to the approach approved in Foley v Post Office; HSBC v Madden [2000] ICR 1283 .[92]In our judgment the problems in this respect are compounded when one considers the conclusion of the Employment Tribunal on the Applicant's contribution to his dismissal.[93]Having regard to(i) the two charges which the Employment Tribunal conclude the Council were justified to find proven, and(ii) the matters listed after the recitation of authority in paragraph 15 of the Extended Reasons we have reached the conclusion that the unreasoned finding of the Employment Tribunal that: "his contribution is assessed at 40%" is perverse (see Stewart v Cleveland Guest [1994] IRLR 440 at paragraph 33 for the various formulations of the perversity test). We have applied those formulations and had regard to the warnings contained in that paragraph. But in our judgment this unreasoned conclusion is not a permissible option having regard to points referred to in (i) and (ii) above.[94]Often with findings that are found to be perverse this Tribunal can substitute its own view for that of the Employment Tribunal. However in our judgment that is not the case here not least because the appeal against the finding of unfair dismissal has been successful and further findings on the issues relating to mitigating circumstances could also be relevant on contribution.[95]In our judgment the correct course for us to take in this case is to allow the Council's appeal against the findings of unfair dismissal and as to contribution and to remit the following limited issues to the Employment Tribunal, namely(a) to consider the approach taken by the Council to mitigating circumstances in its decision making process leading to the dismissal of the Applicant and whether having regard to (i) its findings in respect thereof and (ii) the findings (save those in respect of the approach by the Council to such mitigating circumstances) contained in the Extended Reasons sent to the parties on 24 September 1999 (together referred to as the New Findings) the dismissal was fair or unfair, and(b) if it is found that the dismissal was unfair the issues raised by sections 122(2) and 123(6) of the Employment Rights Act 1996 on the basis of the New Findings. This is a limited remission (see Aparau v Iceland Frozen Foods [2000] ICR 341 at 350 E/F)[96]As a postscript we add that in our judgment the inconsistencies in the findings relating to mitigation do not negative the clear findings, for example, at the end of paragraph 15 and in paragraphs 17 and 18 that the dismissal was not in any way motivated by racial considerations. This is because the findings of fact of the Employment Tribunal taken as a whole indicate clearly that whether or not the investigation into mitigation was flawed, and whether or not Mr Taranezuk's reason for dismissing was because he thought he had no option, or because he did not believe the points advanced in respect of mitigation, or because he did not investigate them fully and properly, he was not in any way motivated by the Applicant's race or the existence of the protected act. Overall conclusions[97]As appears above these are:(a) (A) subject to a reconsideration of the point whether time to bring such claims should be extended the findings of the Employment Tribunal that the Council are liable to the Applicant for discrimination by way of victimisation in respect of the actions of Mr Smith referred to in paragraph 14(5) of the Extended Reasons and the actions of Mr Browne referred to in paragraph 14(9) of the Extended Reasons stand(b) (B) the remaining findings of the Employment Tribunal that the Council were liable to the Applicant for discrimination by way of victimisation are set aside(c) (C) the Applicant's cross appeal is dismissed(d) (D) the findings of the Employment Tribunal that the Applicant was unfairly dismissed and as to his contribution to such dismissal are set aside and in this context the limited remission to an Employment Tribunal referred to in paragraph 95 above is made.[98]The question remains whether the issues as to extension of time, unfair dismissal and contribution should be remitted to the same Employment Tribunal or to a different Employment Tribunal. The argument in favour of remission to the same Tribunal is that they heard a great deal of evidence and therefore, subject to the extent of their memories, the members of that Tribunal would be better informed. In our judgment given the time that has passed this is not a compelling argument.[99]In our judgment the issues are distinct ones which can be assessed against the background of the findings of fact made and recorded in the earlier Extended Reasons. Further in our judgment it would be difficult for the members of the original Employment Tribunal to be satisfied in their own minds that whatever decision they reach they are taking a wholly objective and balanced approach rather than one which contains subjective reactions to the decision they took originally, this judgment and the criticisms contained in it.[100]According we remit the issues identified above as to extension of time, unfair dismissal and contribution to a differently constituted Employment Tribunal. Footnote[101]Before us both sides expressed the wish to bring the litigation between them to an end as soon as possible. This decision means that further litigation is in prospect. We express the hope that both parties and their respective advisers will consider and discuss the question whether this long running litigation can be brought to an end by settlement.