LONDON BOROUGH OF CAMDEN AND OTHERS v RAJWINDER SINGH [2003] UKEAT 0294_03_3007

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0294_03_3007Case No Appeal No. EAT/0294/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
LONDON BOROUGH OF CAMDEN AND OTHERSAPPELLANTRAJWINDER SINGHRESPONDENT
Before
Mr Justice BurtonDate 30 July 2003
[1]APPEARANCES For the Appellants Mr Brian Langstaff QC and Mr Christopher Quinn (of Counsel) Instructed by Messrs Bindman and Partners 275 Gray's Inn Road WC1X 8QB For the Respondent Ms Jennifer Eady (of Counsel) Instructed by Mr R Singh Solicitor 11 Joseph Powell Close Clapham South London SW12 9PF THE HONOURABLE MR JUSTICE BURTON (PRESIDENT) : The Applicant, a solicitor, who is of Sikh ethnic origin, was employed by the First Respondent Council, the London Borough of Camden ("the Respondent") in its Legal Department, first as a locum from October 1996 and then from 8 December 1997 as a Commercial Litigation Solicitor. He resigned on 7 March 2000, and left on 7 April 2000, claiming constructive dismissal. He issued an originating application on 6 July 2000, containing claims of unfair dismissal and of racial discrimination on various grounds. This has been the hearing of an appeal by the Respondent and by the Second Respondent, Mr Gruet, from the unanimous decision of the Tribunal at London Central, after a hearing from 4 to 8 March and 9 and 10 October 2002, promulgated on 18 February 2003, that he was constructively dismissed, that such dismissal was unfair and that two of his claims of racial discrimination succeeded. There was no cross-appeal against the dismissal of the balance of his claims, and there is no discrete appeal by the Respondent against the quantum of compensation award.[2]The two discrimination grounds on which the Applicant succeeded can be summarised:(i) That the Respondent and Mr Gruet, the Applicant's immediate superior (for whom the Respondent has accepted responsibility), discriminated against him on racial grounds in relation to the way they dealt with him with regard to a dispute between him and a firm of solicitors, and in particular an Associate with that firm known as Mr CR, instructed for an opposing party in litigation in which the Applicant was acting on the Respondent's behalf.(ii) That the Respondent and Mr Gruet similarly discriminated against him by virtue of harassment and intimidation in January and February 2000 by reference to a number of meetings with him on 10, 13, 17, 26 and 27 January and 2 and 4 February 2000, of which the Applicant made notes which the Tribunal accepted to be accurate. The meetings followed directly out of the dispute with Mr CR, but, although not at the outset treated as a separate issue (see the identification of the issues to be tried as enunciated at the Hearing for Directions on 15 January 2000 set out in paragraph 7 of the Decision) was so treated by the end. The Dispute With Mr CR[3]This began because Mr CR, in the correspondence relating to the litigation between his client and the Respondent in the County Court, addressed his letters to the Respondent Council, the Borough Solicitor (Head of the Legal Department), Ms Lowton, being female, to 'Dear Madam'. By letter dated 1 November 1999, the Applicant wrote as follows:
" Firstly, we would respectfully point out to you that your letter is not correctly addressed although, as you correctly state, it is appropriate to refer to the Borough Solicitor as 'madam', this matter is being dealt with by the writer himself, who has had conduct of this matter from its inception. We would therefore respectfully request that you address the letter correctly. Otherwise, this delays correspondence being passed within the relevant departments to the correct reference as it is sometimes somewhat confusing for the post room to understand why a letter addressed to a male member of the Litigation Department is being addressed as 'Dear Madam'. We would in future request your co-operation in this matter to assist with the efficient conduct of this matter. "
[4]The Tribunal records the following, not as its findings of fact but as its summary of the Applicant's complaints in paragraph 8(1)(1)(b) following of its Decision:
" (b) This matter was raised before the County Court judge at a hearing on 1 December 1999 by … Camden's Counsel, instructed by the Applicant. The judge agreed that CR had been 'provocative' and he rejected CR's explanation that he had used that form of address because Camden's Borough Solicitor was a woman (and correspondence was normally addressed to the Borough Solicitor). The judge asked CR to adopt a more appropriate tone in his correspondence with the Applicant. (c) Following the court hearing on 1 December 1999, CR began a deliberate campaign of addressing the Applicant as 'Dear Mr Raj' (Raj being the Applicant's first name), in correspondence, although he continued to address him as Mr Singh over the telephone … CR used the 'Dear Mr Raj' form of correspondence in at least six letters in the short period between 6 .. and 17 December 1999 … The Applicant was so sorely provoked by the 'Dear Mr Raj' form of address that on just one occasion he fell below standards and unwisely retaliated by addressing CR as 'Mr Charles' in a letter dated 16 December 1999. (d) On 16 December 1999, the Applicant received a telephone call from CR … When the Applicant returned the call, he was informed by CR that unless he, the Applicant, 'backed off' and pursued the litigation less vigorously he would complain to the Borough Solicitor. CR told him that it was unusual for somebody from the Applicant's ' background ' to be so efficient. CR addressed the Applicant correctly as 'Mr Singh' throughout this threatening conversation. The Applicant was taken aback by the conversation and the reference to the Applicant's ' background ' by CR and he immediately reported the gist of the conversation to Mr Gruet. "
[5]Mr CR made a without prejudice offer on his client's behalf in a letter dated 14 December 1999, which ended as follows:
" This letter is sent to you without prejudice. [The client] reserves the right to send copies to such of your client's officers and councillors as may assist it to obtain the opportunity it seeks. "
[6]The Applicant replied in a without prejudice letter dated 16 December as follows:
" We note that despite the 'without prejudice' heading, you reserve the right to circulate copies of your letter. This is not permissible and indeed is reprehensible … "
[7]The tone of the correspondence, particularly that of Mr Singh, then began speedily to deteriorate: (i) By letter dated 17 December, Mr CR wrote:
" Dear Mr Raj … Your fax was addressed to Mr Charles. I would not normally make an issue of this, but you made a great deal of fuss when I (correctly) addressed letters to the Borough Solicitor 'Dear Madam'. Please use my correct name in future correspondence. " (ii) The Applicant responded by letter dated 17 December addressed to 'Dear Sir': "
You state that I have made a "great deal of fuss when you addressed letters to the Borough Solicitor Dear Madam". However you will no doubt also be aware that at the hearing of this matter before HH Judge Lindsey on 1 December 1999, a copy of my letter to you of 1 November 1999 was put before the Circuit Judge who commented to you that the writer objected to you calling him 'Dear Madam', which was a perfectly reasonable objection and in fact you should address your letters correctly. We also recall that you had no answer to give to the Circuit Judge at that time. But in fact, laughed rather nervously in front of the Circuit Judge. Subsequently, presumably after having heard what the Circuit Judge had to say about the way in which you address your letters to the London Borough of Camden Legal Department, you dropped addressing letters to 'Dear Madam' and have now taken to addressing all your letters to the writer in his christian name. We think this behaviour is somewhat churlish and does not help to progress this matter further. As you have chosen to address the writer by his christian name, we assume that you will also have no objection to yourself being addressed by your own christian name. You are well aware that the writer's surname is Mr Singh and if you deliberately choose to address letters to the Legal Department addressed to the writer by his christian name, you cannot then object to being also responded to by your christian name. We think it will probably be more sensible and professional to address all our letters by the prefix 'Dear Sir' as in normal litigation. Of course it would also be helpful for you and for me to ensure that these letters are marked for the attention of the relevant litigator. I trust that this is now an end to this nonsense. " However the applicant continued:
" As you sought to make an issue of service of our list of documents which we attempted to fax to you, … your own secretary had confirmed to us over the telephone that the reason why faxes were not being received at your end was because there was no toner in your machine. Once this problem was rectified there was no problem in sending a fax through to you on the morning of 16 December 1999. Somewhat ironically, when we attempted to fax you yet again later in the day of 16 December 1999, we once again experienced problems connecting with your fax. " (iii) Mr CR wrote a further letter dated 17 December, obviously on receipt of that letter, stating: "
I was appalled to realise I had written to you numerous times as 'Mr Raj'. I had meant to write to you as 'Mr Singh', and my mistake was simply repeated several times. I apologise without reservation. I had no intention to use your name incorrectly nor to offend and I am sorry that you took it I was being 'churlish'. For the record I do not accept your account of what happened at court, and I do not accept that it is incorrect to send letters which are addressed to the Borough Solicitor to 'Dear Madam'. Nevertheless it is not a good use of time or money to debate this further and I suggest we draw a line under that unproductive correspondence. I shall write to you in future as 'Dear Sir' as you have requested and all future letters will be from this firm and not from me personally. " (iv) This did not however end matters. The Applicant wrote on 20 December 1999:
" We note that you have now finally admitted your "mistake" in addressing letters to the writer by his christian name and that you have apologised for the aforesaid. We trust that in future this litigation can be conducted in a professional and courteous manner. We refer to your without prejudice letter … this resulted in the Professional Ethics Department commenting that your circulation of copies of this letter even though it is marked 'without prejudice' is not permissible and is indeed reprehensible. As it seems to us that you do not know the full nature and purpose of marking letters without prejudice and after discussing the matter with Counsel, we thought it would be sensible to let a senior partner within your firm have sight of our response to your letter of 14 December 1999. " (v) Mr CR replied in a without prejudice letter dated 20 December 1999: "
Mr R admitted his mistake as soon as it was pointed out to him. We shall continue to conduct this litigation in a professional and courteous manner. We object to you referring to a without prejudice letter in open correspondence. We have made our enquiry of the Professional Ethics department … We have suggested to our client that our client should send copies of the letter to Officers and Councillors of your clients. This is admissible and is not reprehensible … Our client has made no admission in respect of repairs. He has offered to carry out repairs as part of an overall settlement of the present proceedings. With respect, it is your client's case which is confused, as it seeks both to prove that [the client] has no tenancy of the premises, and that he has a tenancy obligation to carry out repairs … On a different issue, when Mr Singh and Mr R discussed this case outside court, Mr R said that there were no negotiations between about 1992 and 1997. Mr Singh denied this and said he would provide considerable evidence showing that there were negotiations during this period. We note that of the 240 numbered documents in your list, only 6 of these have a date between these years … We ask whether your client is yet ready to admit that there were no negotiations between 1992 and 1997 … " (vi) The Applicant brings matters to a head in his letter of 21 December in response:
" We acknowledge receipt of your purported 'without prejudice' letter… You state "we have suggested to our client that our client should send copies of the letter to Officers and Councillors of your clients"
. This is indeed reprehensible behaviour. … We refer to your contention that our client's case is confused. As, in your view, it both seeks to prove that [the client] has no tenancy of the premises and that it has an obligation to carry out repairs. May be respectfully suggest that you re-read our client's pleadings. Our client's case is pleaded in the alternative – a practice it would appear you have little or no experience of … We refer to the penultimate paragraph of your letter. With respect, we believe Mr R of your firm has a very selective memory as to discussions which took place outside court. We have already had to correct his recollection of the without prejudice discussions which took place outside court previously … "[8]At this stage the Applicant reported to Ms Lowton, sending copies of the recent correspondence. By an internal email on 23 December she said:
" Thank you for sending me copies of recent correspondence in the above case. Whilst I am pleased that the issues appear to have been resolved, I am somewhat concerned to find that the correspondence descended to such a juvenile level (especially in a matter which has considerable member and press interest) and appears to be concentrating on relatively trivial matters such as the form of address. I do not understand why you have taken issue in respect of this. Many letters come to legal addressed in this way which is scarcely surprising given that all letters go out on my behalf. Your response to what appears to be a genuine apology was not particularly generous. Furthermore if you want to take the other side to task for breaching 'without prejudice' correspondence, you should ensure that you do not send letters marked in this way which are no such thing (your WP letter 17/12 for example). Also I am not entirely sure myself that showing WP correspondence to members is necessarily a breach as they are of course one of the parties to the proceedings. My view is that letters of this kind are rarely justified and, more often than not, serve only to aggravate matters. Can you try in future not to be drawn into this sort of exchange which, as I say, serves no very useful purpose. "
[9]The Applicant's response on the following day stated:
" Since the issue of proceedings this litigation has been characterised by highly emotive, moralistic and political arguments from the other side and a singular lack of any strong legal arguments. "
The Applicant records the criticism by the Circuit Judge on 1 December and then continues " Subsequent to what the Judge said to them at court, the other side then adopted the annoying habit of addressing all letters to 'Dear Mr Raj' – this again is obviously deliberate. " He concluded " Of course I accept that this sort of correspondence only serves to aggravate matters and in future I will try not to be drawn into this sort of correspondence. Unfortunately this case is characterised by highly emotive/moralistic arguments, which makes it extremely difficult to litigate in a normal manner. "[10]However, unknown to them both at the time of that exchange of emails, Mr CR was obviously highly perturbed, and sent a letter of complaint to Ms Lowton dated 23 December 1999, received on the following day. It read as follows:
" I write to complain at the lack of professional courtesy being shown by Mr Raj Singh towards me in his conduct of the case of … I enclose copies of two letters which he has written in which I suggest that Mr Singh has breached Chapter 19.01 Note 3 of the Professional Conduct Rules which reads: "… A solicitor must not write offensive letters to other members of the profession"
. In his letter of 17 December, Mr Singh makes the following allegations: 1. That I "laughed rather nervously in front of the Circuit Judge". I did not. 2. That I had acted in a "churlish" manner. I had inadvertently addressed Mr Singh by his first name rather than his surname, an error that was then copied into two other letters. Mr Singh has chosen to conclude that I had done this on purpose. He then wrote to me as 'Mr Charles', which I believed was an error but turns out to be in retaliation. I have done nothing to justify Mr Singh accusing me of being churlish. 3. That I had lied to him. Mr Singh takes issue with my explanation of a problem with our fax machine. From the phrase "Somewhat ironically", he implies that I had not told the truth, which was not the case. In his letter of 21 December, Mr Singh makes the following allegations: 1. That I am guilty of reprehensible behaviour. This is repeated from previous correspondence, and arises out of Mr Singh's objection to my client providing your client's officers and councillors with copies of a 'without prejudice' letter. You may like to refer Mr Singh to Chapter 19.02 Note 6 of the Professional Conduct Rules. 2. That I have "little or no experience" of pleading in the alternative. This is insulting. It is incorrect, as Mr Singh knows, as my Defence in this case is pleaded in the alternative. 3. That I have lied. He says that I have a 'very selective memory', and that he has already had to correct my recollection. I have not lied. I am an experienced litigator and used to aggressive correspondence which can become a little sharp from time to time. However I object very strongly to Mr Singh insulting me, accusing me by implication of lying, patronising me and criticising my behaviour in this personal and gratuitous manner. I ask that you please take this complaint up with Mr Singh and that you ask him to provide me with a satisfactory written apology early in the New Year. "[11]Both the successful discrimination claims and the constructive dismissal claim arise out of what happened thereafter.

(e) and following:

" (e) The Applicant's case is that CR, by adopting the 'Dear Mr Raj' mode of address was deliberately making fun of him or belittling his … racial/ethnic background as persons of the Applicant's racial/cultural background would have found that mode of address insulting and belittling in the circumstances and the context in which they were made and that CR would not have addressed a white solicitor acting for Camden, named Smith, as e.g. 'Dear Mr Charles'. (f) The Applicant raised those matters – the alleged race discrimination by CR – with Mr Gruet at their meeting on 10 and 13 January .. At the meeting on 10 January … Mr Gruet informed the Applicant that CR had made a formal complaint regarding the Applicant's conduct of the litigation to Ms Lowton .. and that Ms Lowton had asked Mr Gruet to look through the file and draw up a response to CR in her name. At their meeting on 13 January … the Applicant informed Mr Gruet that CR was being deliberately racist and discriminatory and that he expected a robust response to this form of discrimination under Camden's 'Valuing Diversity/Equal Opportunity policy'. Mr Gruet refused to accept that CR's conduct was discriminatory. At one stage, Mr Gruet stated that the perception in the Legal Department was that the Applicant was an extremely forthright character who always 'shot from the hip' and who 'was not afraid to call a spade a spade' and in his (Mr Gruet's) view the Applicant would call this 'spade a bloody shovel'. The Applicant found Mr Gruet's use of the phrase 'spade' offensive as it has an offensive racist connotation. [The tribunal did not find this allegation made out against Mr Gruet in paragraph 32(6) of the Decision, finding rather that his unawareness of the fact that 'spade' had an offensive racist connotation " illustrated his lack of racial awareness ".] The Applicant had further meetings with Mr Gruet on 17 January 2000 … At the meeting on 26 January 2000, Mr Gruet showed him the draft of the letter which Ms Lowton proposed to send to CR … The Applicant protested that the letter with the reference to the Applicant 'unreservedly apologising' was totally unacceptable to him as it undermined his position and he was not willing to apologise to CR … The Applicant asked Mr Gruet if he could speak directly to Ms Lowton. Mr Gruet replied that she could not see him as she was an extremely busy person … (g) At a further meeting of Mr Gruet on 27 January 2000 … Mr Gruet told the Applicant that he had spoken to Ms Lowton and, having taken advice from Ms Landy [on the race discrimination issue] , it appeared that there might be a possible 'hint' of some form of discrimination but that Ms Landy had told him that 'on a scale of racial discrimination cases she had come across this was a relatively minor case' … The Applicant later spoke to Ms Landy who … told the Applicant that Mr Gruet's allegation that she had said that this matter was relatively minor in a scale of race discrimination cases in her experience was absolute nonsense as one could not place racism on some sort of sliding scale. (h) Subsequently, Ms Lowton amended the draft letter and sent her final version to CR, without showing it to the Applicant. Although she removed the reference to the Applicant's 'unreserved apology', the letter dated 27 January 2000 to CR nevertheless undermined the Applicant's position. "
[12]The letter dated 27 January 2000, which Ms Lowton sent to CR's firm, read in material part as follows:
" I have studied your letter carefully and read the file in order to put your complaint about the conduct of this case in the context of the litigation referred to in your letter. In my view there are a number of matters on the file including correspondence, notes of telephone calls and other matters, which reflect little credit in terms of personal courtesy shown by either of the solicitors dealing with the litigation. In my view items 1 and 2 of the letter of 17 December complained of and item 2 of the letter of 21 December [set out by us in paragraph 10 above] come into the category mentioned above. Mr Singh has expressed his regret to me that he was provoked by Mr R into making remarks which in my view are not of the standard that I would expect from solicitors working for this department. However, I do not believe Mr Singh is alone in his failings in this matter. With reference to point 3 of the letter of [17] December, I have discussed this matter with Mr Singh and he assures me that it was not his intention to imply that you had not told the truth in connection with the problems with the fax machine. He has indicated to me that his use of the word 'ironically' was intended to be a humorous remark. With reference to point 1 of the letter of 21 December, Mr Singh assures me that he himself did not make any such assertion. He has stated that his intention had been to convey the view of the Law Society if a certain course of action was followed by you. Mr Singh regrets that you have inferred from his correspondence that he has made accusations in the terms set out in your letter of 23 December. With reference to [point] 3 [in the] letter of 21 December, there appears to have been a dispute between yourself and Mr Singh as to what was agreed in various conversations. In my view it is not acceptable for Mr Singh to make the comments he has made and that you have reported to me. As I have said however, there is evidence of failings on the part of both parties in this matter. I have discussed this complaint with Mr Singh in detail. He regrets that you have interpreted what was said in the manner that you have. I trust that this answers your complaint and that both solicitors in this matter will now conduct the litigation in both a professional and courteous manner. "
[13]The Applicant resigned by email dated 7 March 2000, which gave no reason for his resignation, and on the same day sent an email to his colleagues, which read as follows:
" I write to inform you that I have today formally resigned from the Council and my last day here will be on 7 April 2000. During my time here I have especially enjoyed working with you all as my clients and I have enjoyed delivering client focused, results orientated service. Together we have achieved numerous litigation results. Unfortunately I find that now I am facing political constraints on my ability to do so and therefore I will be returning to private commercial practice shortly … "
The Respondent asserted (incorrectly as the Tribunal found) that the Applicant was obliged to give two months notice, and in response, by memorandum of 9 March 2000 to Ms Taylor, the Applicant wrote:
" I do of course have special reasons for seeking to leave on the 7 th April 2000. My main reason for seeking to leave is that I cannot continue to work with an immediate Line Manager who has absolutely no or little commercial litigation experience, and who has made it almost impossible for me to carry out my function as a litigator within the council. I have recently been subjected to numerous so-called 'off-the-record' comments by Richard Gruet which have been very threatening and totally improper. For example, I have been informed by Mr Gruet that my litigation abilities are not really suited to local government and are better suited to private practice and that "
I should seriously consider this before my next appraisal". I have also been informed that the main purpose of my job is not to get results for clients but that the main purpose of my job here is to "cover each other's arses" and I have been informed that henceforth I must treat as my top priority the covering up of other peoples' mistakes. I have taken independent advice on the nature of these comments and I have been advised that I have a good case for what amounts to constructive dismissal against the Council … "[14]We should immediately deal with two matters which arose in the course of the submissions of Mr Langstaff QC, who did not appear below, but appeared before us, on behalf of the Respondent, leading Mr Quinn, who did appear below, and in respect of which Ms Jennifer Eady, who appeared both below and before us on behalf of the Applicant, made no counter-submissions in response. Both matters arise in respect of the correspondence and the letter of complaint from Mr CR and Ms Lowton's response, and they are two conclusions of the Tribunal with which we do not find ourselves at all able to agree:(i) The Tribunal concluded, at paragraph 31(9) of the Decision that " the Applicant's standards did not fall below professional standards. Both he and CR were playing 'hardball', to use a common expression amongst American lawyers, in a very contentious civil action before the county court, where the Applicant was doing his best for Camden his employer and his client. It is to be noted that the conduct of CR was criticised by the county court judge ". This was not even the Applicant's own position, as he accepted, as appears in paragraph 8(1)(1)(c) of the Decision (recorded in paragraph 4 above), that at least in part he had fallen below such standards. However in any event we do not agree with the Tribunal, if it is being suggested that Mr CR is not entitled to take exception at the gratuitous innuendo and worse adopted by the Applicant, in apparent breach of the solicitors' Professional Conduct Rule which he cited in his complaint letter of 23 December. We do not agree, if such be suggested, that Ms Lowton was not entitled, if not obliged, to " placate " Mr CR (paragraph 31(3) of the Decision) or to reply to the complaint straight away rather than to " inform CR that she would deal with his complaint at the conclusion of the court proceedings as the matter was sub judice [an expression that does not seem relevant to us]" (paragraph 31(6) of the Decision).(ii) In relation to Ms Lowton's letter of 27 January itself, the Tribunal considered that it " pulled the rug from under the Applicant's feet in relation to his role as Camden's solicitor in the ongoing litigation in the County Court matter where CR was acting for the opposing party. It destroyed the Applicant's credibility as Camden's representative in that ongoing "C" litigation. It gave CR ammunition to use against Camden in the litigation " (paragraph 31(6) of the Decision): and " undermined and destroyed his role as Camden's litigator in the ongoing County Court "C" litigation " (paragraph 31(7)): and " undermined the Applicant in his role as Camden's solicitor in ongoing litigation, to the advantage of CR, his white opponent " (paragraph 31(10)). Quite apart from the fact that we are of the view that (subject to the quite separate point, to which we shall turn, of the Respondent's failure to deal with the Applicant's race discrimination complaint against Mr CR) Ms Lowton was entitled, and obliged, to reply to the criticism of the conduct of her junior, the Applicant, in her capacity as Borough Solicitor, in the terms she did, given her own view that at least some of what the Applicant had said and done could not be justified, we do not begin to see how the sending of that letter could be said to " destroy the Applicant's role as Camden's litigator in the ongoing County Court litigation ". This seems both to misunderstand and to exaggerate the role of an Assistant Solicitor in conducting litigation: nor are we able to see how what Ms Lowton wrote could possibly be said to " give CR ammunition to use against Camden in the litigation ". As it happens Mr CR was not at all happy with the adequacy of the Respondent's response, as appears from his reply dated 9 February 2000: but in any event the Applicant's role in bringing the litigation to court cannot possibly be said to have been destroyed, and in the event he did continue to have conduct of it until he left the Respondent.[15]This criticism by Mr Langstaff QC of the Decision, with which we agree, is not however, in Ms Eady's submission, at all central to the Decision of the Tribunal, to which we now turn, in relation to any of the three complaints which succeeded before the Tribunal, all of which she submits can be justified in law irrespective of the above.[16]The starting point, as in any consideration by an appellate tribunal of the conclusions of a first instance tribunal, is the tribunal's view of the witnesses, and this appears from paragraph 29 of the Decision:
" In relation to the disputed evidence between the parties, the Tribunal unhesitatingly prefers the evidence of the Applicant's three main witnesses (the Applicant, Ms Landy and Ms Paul) to that of the three main witnesses called on behalf of the Respondents (Mr Gruet, Ms Lowton and Ms Taylor). All the witnesses called on behalf of the Applicant were honest and very credible witnesses. We did not find the Respondents' three main witnesses … to be credible witnesses on the disputed issues in the case … The Respondents did not ever – during his employment, or subsequently, or in the course of these proceedings – genuinely address the issues in the Applicant's genuinely perceived complaints of race discrimination. Rather than addressing and investigating those genuine racial discrimination issues, they sought to belittle his genuinely-held belief or to imply that he did not genuinely hold such beliefs and they used their investigation of his formal grievance (by Ms Taylor) to attack his professionalism and his relationships with his colleagues and clients rather than deal with his genuine complaints ."
The CR Issue[17]The Tribunal's findings in this regard are set out in paragraph 31 of the Tribunal's Decision. The Tribunal came to the conclusion that there was less favourable treatment of the Applicant by the Respondents on the ground of race, and that he suffered detriment. This Appeal Tribunal does not have the role of deciding what it would itself have decided, but whether the Tribunal below either erred in law or made a perverse decision. Both the Employment Tribunal and this Tribunal have been warned by Counsel, by reference to the authorities, on the one hand that, since evidence of discrimination is not always easy to identify and establish (per Neill LJ in King v Great Britain-China Centre [1992] ICR 516 at 528 as approved in Glasgow City Council v Zafar [1998] ICR 120 ), the Tribunal must be ready to look not only at primary facts but also at inference, including inferences to be drawn from inadequate explanations ( Shamoon v Chief Constable of the RUC [2003] ICR 337 at 375 paragraph 116 per Lord Scott of Foscote): and on the other hand to bear in mind that if an employer acts in a way which an employment tribunal considers unreasonable towards an employee who happens to be of a different race, that does not mean that there was unfavourable treatment on grounds of race, for example because the employer may have behaved similarly unreasonably towards others ( Zafar at 124 per Lord Browne-Wilkinson, Marks and Spencer plc v Martin [1998] ICR 1005 at 1019 per Mummery LJ). The employment tribunal must also beware, when asked to reach a conclusion that the employer would have treated a hypothetical employee of a different race differently in similar circumstances, of the speculative nature of any inferences to be drawn about such a hypothetical comparator, and the need for some evidence upon which to base such inferences ( Shamoon at 366-7 per Lord Hutton, approving dicta of Lindsay P in Chief Constable of West Yorkshire Police v Vento [2001] IRLR 124 ).[18]The Tribunal made, among others, the following findings in relation to what it called the " CR Issue ": (i) That there was unfavourable treatment of the Applicant – the inadequate dealing with his complaint about Mr CR:
" The fact is that neither Mr Gruet nor Ms Lowton took the Applicant's CR complaint seriously (paragraph 31(3) of the Decision)." "
The Tribunal formed the view from [Ms Lowton's] evidence that, although she had not put the Applicant's race discrimination allegation to CR (and therefore did not have the benefit of his explanation for his conduct) and she had not caused any investigation to be carried out on the Applicant's complaint against CR, she was more willing to give CR the benefit of the doubt rather than address the Applicant's complaint: she said in evidence there could have been any number of non-racial explanations including a genuine mistake on CR's part. That was an attempt by her to explain away her decision not to take any action. " (paragraph 31(4). " Ms Lowton stated that it had occurred to her that CR's conduct might be racism, and the racism issue had been taken into account by her, and the response that was sent to CR was not as strongly worded as it originally had been. In evidence she said that by removing the reference to an apology by the Applicant from the letter which was sent to CR on 27 January 2000 … the Applicant's complaint of race discrimination by CR had been appropriately dealt with by her. The Tribunal rejects that explanation. Apart from anything else, neither she nor Mr Gruet took the Applicant aside to explain to him that they shared his concern regarding his race complaint against CR and that that issue had been addressed by toning down the letter to CR. The Tribunal finds that toning down the criticism of the Applicant in the letter to CR was not an adequate response by Ms Lowton and Camden to the Applicant's complaint. " (paragraph 31(4)). " It has been contended on the Respondent's behalf that it would not have been feasible to take the matter up with CR. That is not a valid argument. Ms Lowton could have written a very polite and courteous letter to CR or the Senior Partner in his firm, setting out the substance of the Applicant's race complaint and concerns. That would have given CR an opportunity to respond with an explanation as to his conduct in addressing the Applicant as 'Dear Mr Raj' in those six letters. " (paragraph 31(8)) (ii) That such unfavourable treatment was on grounds of race: (a) It related to the inadequate treatment of a race complaint by a Sikh employee:
" the Respondent were under a duty under their Equal Opportunity and "
Valuing Diversity" policies to investigate his complaint " (paragraph 31(2) of the Decision). (b) The Tribunal made the finding which we have set out in paragraph 16 above and repeat here, in paragraph 29 of the Decision:
" The Respondents did not ever – during his employment, or subsequently, or in the course of these proceedings – genuinely address the issues in the Applicant's genuinely-perceived complaints of race discrimination. Rather than addressing and investigating those genuine racial discrimination issues, they sought to belittle his genuinely-held belief or to imply that he did not genuinely hold such beliefs … " (c) The Tribunal concluded that the Respondent would not have treated its similar white employees in similar circumstances the same: "
On the evidence, and the unsatisfactory explanations advanced by the Respondent and their witnesses, the Tribunal draws the inference that had the Applicant been a white solicitor making a race allegation in similar circumstances, Mr Gruet and Ms Lowton would have responded more positively and acted in relation to the complaint. " (paragraph 31(10)) The Tribunal referred to some specific matters. In relation to one of them we do not see how it was of relevance. In paragraph 31(6) the Tribunal states as follows:
" In this respect, Ms Lowton's treatment of the Applicant was in stark contrast to the position which she adopted in the 'H' matter. If it was the custom and practice, as Ms Lowton stated … that officers are not allowed to criticise each other in Camden committee meetings before elected members, she nevertheless felt free to criticise her junior in a letter to an outside solicitor who was his opponent in an acrimonious ongoing litigation between the parties where the Applicant was acting for Camden and the opponent (CR) was acting for the opposite side. "
We do not see that there is any similarity here at all between the customary Council convention to which she refers, and the need of the Borough Solicitor to respond, and respond responsibly, to the kind of outside complaint exemplified by Mr CR's letter of 23 December. However there were plainly other matters upon which the Tribunal was entitled to and did rely:
" Ms Lowton said that she operated an "open door policy", where anyone in her department could walk in and out of her office and talk directly and freely to her. If that is the case, the Applicant was treated less favourably when, on 27 January 2000, he requested through Mr Gruet to see her to express his concerns to her directly before the letter was sent out to CR. Mr Gruet informed the Applicant that Ms Lowton was not available to see him. Her door was closed to the Applicant when he wanted to discuss a matter of the utmost concern to him. " (paragraph 31(5) of the Decision). The Tribunal records at paragraph 32(4) of the Decision the views expressed by the two hypothetical comparator white employees about Mr Gruet; they express " concerns about whether he would give the right level of support to the civil litigation team in the event of any complaints against them by outside solicitors ": this is very different from the belittling of the Applicant's complaint which the Tribunal found. (iii) As to detriment, we have already concluded that the Tribunal appears to have had, at any rate in our judgment, an over-exaggerated view of the nature of the letter, and a lack of appreciation of the need to send a letter containing some recognition that the Applicant had been at fault. This led them to take the view that the sending of the letter. and the allegedly consequential destruction of the Applicant's role in the relevant litigation was a detriment. As can be seen, we do not agree with this analysis. However it is clear from Shamoon at 349, per Lord Hope of Craighead at paragraphs 34 to 35 that it can be enough if a worker had " thereby been disadvantaged in the circumstances in which he had thereafter to work " and that it is " not necessary to demonstrate some physical or economic consequence "
. The Tribunal here found (paragraph 31(7)) that " the failure to investigate the Applicant's CR complaint adversely affected his dignity at work ".[19]The Tribunal made its findings in relation to the second issue, the race discrimination complaint by reference to alleged bullying, harassment and intimidation by Mr Gruet, in paragraph 32 of its Decision. It dealt with the facts in a very shorthand way indeed, namely:
" (1) The Tribunal accepts the veracity of the notes made by the Applicant of his meetings with Mr Gruet on 10 January 2000 … 13 January 2000 … 17 January 2000 … 26 January 2000 … 27 January 2000 … and 2 and 4 February 2000 … "
[20]Of course there was oral evidence, and we ourselves have the notes, which are thus effectively ' read into the record '. Mr Langstaff QC points out that, as one would expect in relatively lengthy notes, there are passages which suggest that the Applicant was more than holding his own in the course of such discussions. Ms Eady, on the other hand, points to certain extracts which must have weighed with the Tribunal. There was the statement by Mr Gruet, recorded in the notes of 13 January 2000, of which the Applicant made complaint in his memo to Ms Taylor of 9 March 2000 which we have already cited in paragraph 13 above. There is also the passage in the note of 26 January in which Mr Gruet is recorded as stating that if the Applicant refused to work on files he should " seriously consider how this may affect the security of [his] position ". Much of the recorded notes reflects the internalised comment of the Applicant, such as his thinking that Mr Gruet was being " deliberately oppressive in requiring me then to go into a full team meeting " (notes of 13 January 2000) or his " view … that the meeting had in fact degenerated into an excuse for grinding me down " (note of meeting of 17 January 2000), although there is a note in the same meting of the Applicant saying to Mr Gruet that he " was not willing to be bullied and intimidated by so-called 'off-the-record comments ". In our judgment it would certainly have been better if the Tribunal had spelt out precisely the findings it made as to the conduct of Mr Gruet which it found to be intimidatory or oppressive. However:(i) If there had been no notes, but simply an acceptance by the Tribunal of the generality of the Applicant's recollection (preferred to that of Mr Gruet) that the tone or nature of the meetings was such to harass or intimidate him – and thus to treat him unfavourably – then there could have been no ground for complaint on the part of the Respondents.(ii) The central point, which Ms Eady emphasised before us, is that the issue before the Tribunal is whether or not the interviews did occur as the Applicant described, it effectively being common ground that, if they did so occur, the treatment would have been unfavourable. Mr Gruet's witness statement at paragraph 13 recorded that " I have been shocked at the way in which the Applicant has portrayed me … I simply do not recognise myself in many of the conversations and incidents that he describes ". The Tribunal resolved this issue in the Applicant's favour. It thus found that there was unfavourable treatment.[21]As for whether such unfavourable treatment was on grounds of race, the Tribunal found as follows, in subparagraphs 32(7) and (8) of the Decision:
" (7) Mr Gruet was biased against the Applicant, he treated the Applicant more harshly than he treated the comparators – two other members of the civil litigation team – Ms Swetman and Mr Daley who are not of the same racial group as the Applicant. His treatment of the Applicant became more harsh after the receipt of the CR complaint against the Applicant. When it came to the Applicant, Mr Gruet departed from his normal relaxed management style. (8) On the primary facts, in the absence of any satisfactory explanation from Mr Gruet for the less favourable treatment of the Applicant, the Tribunal draws the inference that Mr Gruet treated the Applicant less favourably, on racial grounds, than he treated the two other members in the litigation team, neither of whom is of the same racial group as the Applicant. "
[22]In the absence of any explanation, once the Applicant's denial of the treatment had been rejected, his unexplained different treatment could be set against his normal management style – (as described by him in paragraph 11 of his witness statement) " someone who gets on with people … who is flexible, patient and good-humoured ". As for detriment, " the act of detriment was the bullying and harassment which the Applicant received from Mr Gruet " (paragraph 32(8) of the Decision): in paragraph 36(1) the Tribunal " accepts his evidence that as a result of his treatment at the hands of the Respondent, his health deteriorated, he lost one and a half stones in weight and suffered from sleeplessness ".[23]With regard to both findings of discrimination, based upon the matters we have set out above, we are unable to conclude, notwithstanding Mr Langstaff QC's submissions, that there was any error of law in the Tribunal's approach, or that it was not entitled in law to reach the conclusions it did. So far as the award of £15,000 plus £5000 aggravated damages, those were substantial, but there is no separate appeal relating to the level of the awards. The only ground of appeal was that there were not sufficient findings of fact as to the nature and extent of the discrimination either for such discrimination to be established or, consequently, for an assessment of compensation to be made, and we have already indicated that we are not persuaded by that submission.[24]We turn finally to the issue of constructive dismissal. This was dealt with in paragraph 35 of the Decision. The Tribunal concluded in paragraph 35(1) that its " findings of fact in relation to the Applicant's race discrimination complaints against Mr Gruet and Camden (paragraphs 31 and 32 of this Decision) are also relevant findings of fact in relation to the Applicant's constructive dismissal case ": and they then proceed to conclude in paragraph 35(2) of the Decision that " even without the Tribunal's findings on the Applicant's race discrimination complaints …, the Tribunal would have found, and does so find, that Ms Lowton's letter dated 27 January 2000 … constituted a breach of a fundamental term of the Applicant's contract by Camden ". Mr Langstaff QC accepted that, if he were to fail in his challenge to the race discrimination complaints, he would not be able to pursue his case in respect of constructive dismissal. He restricted his submission to a case that, without the findings on race discrimination, the sending of the letter alone would be wholly insufficient to amount to a repudiatory breach; both because it would and could not amount to a breach of the implied term of trust and confidence, the Tribunal having erred in its approach to the letter, not least for the reasons to which we have referred above, but also because there was no separate consideration of the additional requirement that the Respondent must have acted " without reasonable and proper cause " (see per Lord Steyn, enunciating the test, in Malik v BCCI [1997] ICR 606 at 621C-D,628G. He also submitted that, as it is necessary for a finding of constructive dismissal that the repudiatory breach must be accepted by the Applicant, i.e. that the resignation must be in response to the alleged breach, the Tribunal had erred in respect of a central issue of fact in paragraph 35(4) of the Decision. It there records that " he acted responsibly in weighing up all the factors. He started looking for another job in order to mitigate his loss. As a first step, he arranged to go part time job-share from 1 April 2000 ". He points out that the application for the job-sharing arrangements was made on 24 January 2000, which antedated the allegedly repudiatory letter of 27 January 2000.[25]However Mr Langstaff QC accepted that if he failed, as he has done, in respect of the complaints of race discrimination then he would not be able to contend that the Tribunal was not entitled to find that such amounted to a repudiatory breach or breaches: and at paragraph 33(5) of the Decision the Tribunal recited that " the Applicant had decided to go part time and then resign as a result of Camden's failure to investigate or deal with his CR race discrimination complaint ", to which the 'prematurity' point could not apply. This ground of appeal must therefore also fail.[26]In those circumstances the appeal is dismissed.