MR S RADLEY v DEPARTMENT FOR WORK AND PENSIONS [2005] UKEAT 0141_05_2806

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2005] UKEAT 0141_05_2806

Case No Appeal No. UKEAT/0141/05

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR S RADLEYAPPELLANT

DEPARTMENT FOR WORK AND PENSIONSRESPONDENT

Before

Mr Justice Burton

Date 28 June 2005

[1]APPEARANCES For the Appellant MR STEVE RADLEY (The Appellant in Person) 66 Sutlej Road Charlton London SE7 7DB For the Respondent MR JAMES HANHAM (Of Counsel) Instructed by: Office of the Solicitor – Dept of Health SOL Employment New Court – Room 544A 48 Carey Street London WC2A 2LS SUMMARY Sex Discrimination and Practice and Procedure Notwithstanding unconscionable delay by the ET Chairman, and then the loss of the Chairman's notes of evidence (emphasizing the crucial importance of the institution of an administrative system by the ETS for regularly warning Chairmen of delayed judgments), which led to non- Meek compliant parts of the judgment, on the central issue, namely that there was not a protected act, the ET's decision could not be challenged. THE HONOURABLE MR JUSTICE BURTON (President) This has been the hearing of an appeal against a decision of the Employment Tribunal at London (South) chaired by Mr Warren, now the Regional Chairman, (but not so at that stage), which was, after a short hearing in the Employment Tribunal on 30 September, 1 and 2 October 2002, handed down in a judgment sent to the parties on 3 November 2003, namely 13 months later, dismissing the claim by Mr Radley, the Appellant, that he was victimised contrary to s.4 of the Sex Discrimination Act 1975 ("the SDA") .

[2]The real complaint of the Appellant is of the very substantial delay by the Employment Tribunal. Had he not lost, we are sure that he would have been joined in his complaint by the Respondent, the Department of Works and Pensions, because there is no doubt that this was totally unjustifiable and inexplicable delay by the Chairman, Mr Warren, responsibility for which cannot be ascribed to the parties, and which caused them both irritation and annoyance quite apart from possible cost: and of course the very delay itself has caused or contributed to the bringing of an appeal by the unsuccessful party, Mr Radley.

[3]When asked by this Employment Tribunal, pursuant to an Order by Judge McMullen QC of the 9 January 2004, for an explanation for the delay, none whatever was proffered by Mr Warrren. In a letter which was itself not sent until a further nearly nine months after that Order, namely 3 September 2004, Mr Warren said this:

"I write most sincerely to apologise for the delay in dealing with the above matter. There is no acceptable excuse for the fact that the decision took so long to promulgate. I apologise for the delay. During the period of delay the Region was under considerable pressure with an enormous case load. I was getting to grips with acting up as Regional Chairman - in hindsight I realise I was sitting too much and was struggling to cope."

That is of course a fulsome apology by Mr Warren. It does not however include anything by way of further particulars of the passage of time. For example, it is quite normal in the judgment to recite the days when the Tribunal met in chambers to discuss its decision. That was omitted from the Judgment in this case, which simply recited the three days of the hearing and then added the words "and in Chambers".

[4]As we have indicated, the Employment Tribunal hearing ended on 2 October 2002, and the judgment was not delivered until thirteen months later. In the case of Kwamin v Abbey National Plc and Others

[2004] IRLR 516

I indicated (giving the judgment of this Tribunal, differently constituted) that in a normal relatively difficult, relatively lengthy case, the time in which judgment should be delivered should not exceed 3½ months, including the time for consideration of the draft judgment, written by a chairman in the first instance, by lay members, who may not be easy to get hold of - although, there is no suggestion here that this delay was contributed to in any way whatever by either of the two lay members in this case.

[5]If 3½ months is the norm in such a case, this being a relatively simple case and being over in three days, one would have thought that the maximum period of time which could be justified would be three months. Hence the judgment in this case was inexplicably delayed by some ten months.

[6]Mr Warren has, if we can use the word, 'form' for this kind of delay. In the reported decision of Kwamin there were four cases being simultaneously considered by the Employment Appeal Tribunal on appeal. In one of them, Kwamin itself, as it happens Mr Warren had been the Chairman. In that case, the tribunal hearing concluded on 14 March 2002, and the judgment was not delivered to the parties until 2 June 2003, a 14½ month passage of time, of which - given that Kwamin was relatively more complex than this case - 3½ months was or would have been entirely justified, leading thus to a delay of eleven months.

[7]Our judgment in Kwamin , in which we were constructively critical of delays which were occurring in employment tribunals, was delivered on 2 March 2004, which plainly post-dated the events in this case. But we cannot fail to note that the notice of appeal in Kwamin , which was based upon delay by Mr Warren, was served, and no doubt will have been known to Mr Warren, by about August 2003, and yet the judgment in this case was still not sent to the parties until November 2003.

[8]It is plain that this delay is quite unacceptable. One of the consequences of the delay was that, at some stage, the Chairman's notes of evidence were lost, and are no longer available. We do not know precisely when that occurred, and it is not capable of being established, and therefore we are left completely uncertain as to whether those notes of evidence were mislaid prior to the judgment being prepared by Mr Warren in September 2003. However, as will be seen, the substance of the decision, albeit capable of criticism as we shall indicate, does not itself illustrate a total absence of any notes of evidence being available, and it appears to us on balance more likely that the notes of evidence were filed away, and then lost, when it was concluded that they were finished with, i.e. after the belated production of this judgment. If the administrative procedures which we recommended in paragraph 16 of our judgment in Kwamin (particularly relating to reminders to chairmen) are now in effect, then it may make it the less likely that delays will be exacerbated by the loss of the chairman's notes in such already sensitive cases.

[9]The first time the absence of the notes is referred to in the letter of 3 September 2004, to which we referred earlier, containing as it does Mr Warren's words of apology. That letter concludes:

"Having reviewed the tribunal file the Chairman notes that the Chairman's Notes of Evidence and copy witness statement, and bundle of documents are no longer on the file - a search of the Tribunal's storage rooms is being made."

In the event there was, pursuant to the order of Judge McMullen QC, to which we have referred, on 9 January 2004, a question referred back to the Tribunal, (which we shall describe), pursuant to Burns v Consignia No.2

[2004] IRLR 425

as now approved by the Court of Appeal in Barke v SEETEC Business Technology Centre Ltd

[2005] IRLR 633

, and giving the opportunity for the Tribunal to hold a review. That review, which was originally to be held on 30 September 2004, was adjourned, at the request of the Respondent, and was eventually held on 19 November of 2004.

[10]At that review it seems, that although the Chairman's notes of evidence had not been found, notes of evidence taken by the Respondent's solicitor ("the Notes") were available, and they have been available before us, and copied to the Appellant, and we shall refer to them later. That review hearing resulted in a judgment ("the Review Judgment") confirming the earlier decision of the Employment Tribunal, and answering the questions raised by the Employment Appeal Tribunal, as contained in reasons sent to the parties on 13 January 2005. The apology for delay was repeated in paragraph 17 of that Judgment, albeit again without any further particularisation.

[11]Notwithstanding the Review Judgment, to which we will refer, the Appellant Mr Radley has pursued his appeal, and he has put it forward by reference to the substantial delay. Since the appeal was launched by Mr Radley, there has been our judgment in Kwamin , to which we have referred. That made it clear that, on the approach of the Appeal Tribunal set out in that case, by way of guidance referable to all four cases, delay itself, albeit regrettable, could not found an appeal, and certainly would not automatically, or anywhere near automatically, lead to a remission for a re-hearing. It had to be shown that by virtue of the delay there was a substantial error, or were substantial errors, in the approach or assessment by the tribunal attributable to the delay.

[12]That approach by this Appeal Tribunal was, however, not followed and was in part disapproved by the Court of Appeal in Bangs v Connex South Eastern Ltd

[2005] IRLR 389

. The approach in Kwamin was effectively regarded as being too favourable to an appellant, in the absence of perversity. The fact that an appeal tribunal might take the view that a decision was unsafe by virtue of the passage of time was insufficient. The basis for this conclusion by the Court of Appeal was that, unlike in other jurisdictions where, albeit exceptionally, appeals can still lie to the Court of Appeal against findings of fact, or on the basis of fact, where, as here, the only appeal to an Employment Appeal Tribunal is on the basis of error of law, the test, even in cases of delay, must be stricter. Mummery LJ, giving the judgment of the Court of Appeal, concluded that it would only be in exceptional cases that unreasonable delay by the tribunal in promulgating its decision could be treated itself as a serious procedural error or material irregularity giving rise to a question of law. It would have to be shown that the failure to promulgate the decision within a reasonable time gave rise to a real risk that, due to the delayed decision, the party complaining was deprived of the substance of its right to a fair trial under Article 6.

[13]It is against that background that we must now approach the delayed decision by this Tribunal. Before doing so, however, we must point out that albeit that there may be, and still is, notwithstanding the restriction of it by Bangs , an independent ground of appeal based on delay, nevertheless in a case where the judgment has been delayed there may still be what one would describe as a more traditional ground of appeal available. Indeed such traditional grounds of appeal may be the more available if, due to the passage of time, the employment tribunal's decision is the less full or persuasive.

[14]Thus delay may lead to a judgment which is non-compliant, with Meek v City of Birmingham

[1987] ICR 250

, which is the case which requires an employment tribunal in its judgment to give sufficient reasons so that a party can understand why it has won or lost. Appeals based upon an allegation that a decision of an employment tribunal was not ' Meek -compliant', as it is colloquially called, have become much less frequent since the response of the EAT in the light of Burns and Barke has become more regularly, on the sift or perhaps on a preliminary hearing, to refer back such decisions, attacked only on the ground of inadequacy of reasons, for further consideration by an employment tribunal: and such inadequacy of reasoning may be remediable by a review, or by the giving of reasons or further reasons pursuant to the Burns/Barke procedure.

[15]In this case, as we have indicated, there has been a review. And if, notwithstanding the Review Judgment, the Tribunal's decision is still not Meek -compliant in material respects then, of course, the result would be to allow the appeal and remit the decision, no doubt to a fresh tribunal, on Meek grounds alone. As will be seen, it appears to us - although we have not called upon Mr James Hanham of Counsel, who has represented the Respondent before us as he represented them below, on this aspect - that there would be substantial arguments of failure to comply with Meek relating to the issues of whether there was unfavourable treatment of the Appellant by the Respondent, and, if so, whether any of those incidents of unfavourable treatment were out of time, and why, and/or whether time should be extended, if so. However the central question, before such issues are reached is whether the Employment Tribunal's finding in relation to whether there was a protected act can be justified.

[16]The brief facts of this case are that the Appellant and a Mrs Cronin were the subject of allegations during 2000, which had caused the Respondent to consider the possibility of relocating Mrs Cronin and the Appellant, and indeed other employees, from branches where they worked. This was the background to what then occurred.

[17]There then occurred, on 18 and 19 January 2001, an employment tribunal hearing involving a claim made by Mrs Cronin against the Respondent ("the Cronin hearing"). Subsequent to that hearing, there took place a number of incidents, upon which the Appellant relied before the Employment Tribunal in this case as amounting to acts of unfavourable treatment, which would qualify as victimisation if there was a protected act. The difficulty for the Appellant in this case was that he was not alleging discrimination against himself, on either sex or race or disability grounds. He was complaining of acts of unfavourable treatment which would only be actionable if there were a protected act by reference to the complaint of sex discrimination made by Mrs Cronin.

[18]The establishment of a protected act was therefore crucial. And the establishment of acts of unfavourable treatment of him in the months between January 2001 and November 2001 would only be relevant if they could be brought within the rubric of victimisation, because, of themselves, given the absence of any claim by him of discrimination on sex or race grounds, they would not have been actionable. Dismissal did not arise, and indeed the Appellant remains employed by the Respondent. The establishment of a protected act was thus crucial for the Appellant, who represented himself below, as he has done before us. And before us, as he no doubt did below, he has done so with thoroughness, perspicacity and courtesy.

[19]If it cannot be suggested that there was any effect upon the issue of protected act by virtue of the delay of the Tribunal, if the decision on protected act was Meek -compliant, if the decision on protected act was not perverse, then any failure by the Tribunal in its findings in relation to whether there was subsequent to, and by reason of, the protected act, unfavourable treatment, and whether that unfavourable treatment was in time, is irrelevant and immaterial.

[20]In his Originating Application the Appellant described the events that had occurred from January 2001 onwards. Indeed, he says in paragraph 9 that since January 2001 the Applicant has been victimised, and he describes the alleged victimisation. His case is as follows in relation to protected act:

"8 The applicant believes that he has been victimised by the Department under Section 4(1) of the Sex Discrimination Act 1975 in that he assisted and openly supported his colleague a Mrs Ann Cronin. This was by attending internal departmental enquiries into discrimination by the Department against Mrs Cronin in promotion exercises. He also attended a case of sex discrimination at an Employment Tribunal brought by Mrs Cronin against the Department on 17 th and 18 th January 2001, where he was specifically identified by the Department's presenting officer to the members of the tribunal as being in attendance, yet not being a witness. …… 12 The applicant believes that the only reason he has been treated in this matter by the Department is that he openly supported and assisted Mrs Cronin with her Employment Tribunal against the Department and to show to other staff the consequences of speaking out against the actions of Management."

[21]In its Notice of Appearance the Respondents said as follows, in paragraph 17:

"17.1 It is denied that the Respondent has victimised the Applicant under section 4(1) of the Sex Discrimination Act 1975 ("the Act") as alleged or at all… 17.2 Furthermore, the Applicant has failed to give proper particulars of the alleged "protected act" for the purposes of the Act. The Respondent will ask for proper particulars of the protected act(s) on which the Applicant wishes to rely."

We interpose to say that it seems that no such particulars were ever sought. "17.3 For the avoidance of doubt, it is specifically denied that attending a Tribunal hearing with his good friend Ann Cronin on 17 and 18 January 2001 constitutes a "protected act" for the purpose of the Act. Before the Tribunal, there were witness statements served and they have been put before us. In the Appellant's witness statement he began his story in January 2001 and in paragraph 2 of the witness statement, after introducing himself, he said:

"2 On 17/01/2001 and 18/01/2001 I attended an Employment Tribunal hearing in Croydon in which a colleague of mine, Ann Cronin, was making a claim against the Department of Social Security for Sex Discrimination. 3 The very day after the Tribunal had finished on Friday 19/01/2001…"

[22]Before the Tribunal, there were witness statements served and they have been put before us. In the Appellant's witness statement he began his story in January 2001 and in paragraph 2 of the witness statement, after introducing himself, he said: and he describes what he says thereafter happened.

[23]In his peroration at the end of the statement headed up, in paragraph 53, " In short the whole issue was a total stitch up from start to finish " he says, in numbered paragraph 3:

"3. The decision to move me was taken the very day after Ann Cronin's Employment Tribunal (19/01/2001)."

And so 'the start' through to what he thus describes as 'the finish' is the Cronin hearing.

[24]At subparagraph 12 of the same paragraph (53) he says this:

"12 Natural justice has not been done, I believe management victimised me for attending an Employment Tribunal in support of a colleague. Part of that Tribunal was concerning workplace restrictions that had been placed on Ann Cronin and myself and the Department's representative had pointed me out at the tribunal and sneered at me for not giving evidence."

[25]"Sneered", we interpose, is the Appellant's description. What in fact occurred, as we understand it from him, is that the Counsel then acting for the Respondent pointed out to the Cronin Tribunal that he was present at the back of the tribunal room, that he had made a similar complaint to that made by Mrs Cronin, and yet he was not being called, it appeared, and such indeed turned out to be the case, as a witness by Mrs Cronin.

[26]So far as what occurred at the hearing before this Tribunal is concerned, we have no notes of evidence, in the circumstances earlier described in this judgment, so that no order could be made for them to be produced. However, detailed notes of evidence were kept by the Respondent's solicitor, namely the Notes, to which we have referred earlier. Without objection from either party, indeed at the invitation of the Appellant, who sought to rely on parts of them, we have looked at pages of the Notes; all those pages which either side thought might be relevant. Although, of course, the Appellant reserved his position as to whether some or even much of the notes may not be accurate - inevitably this may be the case even in what is on any basis an extremely able note by a solicitor, of which he or she should be proud - it is nevertheless the case that in all material respects - and those material respects are those to which we will refer - there is no dispute between the parties that the Notes are accurate, and in particular the Appellant has, as we shall describe, confirmed certain parts of them to be so.

[27]Thus we have had the benefit of looking at notes, which we could have done more simply, had it been necessary, if the Chairman's notes had not, by virtue of the delay, been lost. These Notes show that at the outset of the hearing the Appellant who, as is normal in a victimisation claim, when opening was involved in dialogue with the Chairman, during which the Chairman sought to have his claim clarified. The very first Note made at the outset of the hearing is as follows:

"Protected act is [employment tribunal] of A. Cronin (17/18 January 2001) [and] ongoing victimisation since then."

Then there is clarification of what the conduct is that is complained of as the unfavourable treatment. Then there is a Note that the Respondent's Counsel raises or clarifies or summarizes the issue as being whether or not the 17/18 January was a protected act, and he is noted as saying that there would be a time point. The Chairman is then noted as saying, and indeed the Appellant recollects this incident well:

"Have you read section 4 of SDA?" and he is then noted as replying: "4(1)(c) of the SDA [is relied] on - attending and supported Ann Cronin ET (January 2001)."

The Appellant confirms that that Note is an accurate account of what he said to the Chairman by way of summarizing his case.

[28]A number of witnesses was called. The Appellant was, not surprisingly, the first of those witnesses. There was put to him a record of a meeting which he had with representatives of the Respondent in March 2001, which was in the bundle. That meeting record is quoted by the Employment Tribunal in its Review Judgment at paragraph 8, and we should read relevant extracts at this stage by reference to that paragraph:

"8. In evidence before the Tribunal, being an extract from an interview with the Claimant copied at pages 1 and 2 of the Claimant's bundle, being a record of what was discussed at a meeting on 30 March 2001 with the Claimant by Mr Matthews, the nominated Grievance Officer, where the interview notes record: SR: It all started on 23-01-01…"

And then he continues:

"Kath said she had been to see to me at Lewisham office the previous day…" (That is Kath O'Leary) "(the 22 nd ) to tell me but I wasn't in…"

Then the record continues:

"He…" (that is the Appellant) "knew on the Friday that she was coming and this date was significant because it was the day after an Employment Tribunal. The Tribunal was not directly about me. However, because part of it covered restrictions that had been placed on me and another member of staff I went along to see what was said."

Then the Appellant's union representative, Mr Easton, interposed, according to the record:

"The Industrial Tribunal was about Anne Cronin. An Equal Opps complaint has also been made against Anne."

Then Mr Matthews is recorded as saying:

"So you attended the Industrial Tribunal purely as an observer?"

And the Appellant is noted as answering: "Yes.."

[29]It was in relation to that record that the Appellant was asked questions in cross examination, as he accepts, by Mr Hanham. And the Notes say, as to Mr Hanham's question:

" Page 1 of Bundle, record of transcript with Mr Matthews - read last para. Intended purely as an observer? The Appellant is noted as answering : "

Yes, as I pointed [out] earlier, picked me out at the ET and well knew that I helped Ann Cronin prepare." Q: Where is the evidence? A: As I was picked out the [Department] knew I was involved." Then Mr Hanham, according to the note, said to the Appellant:

" Look at your [Originating Application]. Are you no longer relying on attending internal procedures?"

And the answer by the Appellant is:

"No - clarified this morning."

[30]Very fairly before us, the Appellant has confirmed that he did indeed make that statement in evidence to the Tribunal. In those circumstances, he accepts that he did not rely at the Employment Tribunal on those additional words in paragraph 8 of his Originating Application, which we have read, namely the sentence which relates to "attending internal departmental enquiries", and thus that the only basis on which he was putting forward his case was that he attended the employment tribunal, as he accepted again - and again he has confirmed that before us that that is accurately recorded – "purely as an observer". So the only matter that was before the tribunal in those circumstances as a potential act was that he attended as an observer at the Employment Tribunal, and then, to quote his own words in cross examination "they picked me out at the ET and well knew that I helped Ann Cronin prepare". When asked where the evidence was for that, the Appellant's noted reply - and again there is no dispute that this is an accurate note - was, "I was picked out the Department knew I was involved."

[31]There was no more evidence given by the Appellant before the Tribunal. Again he has accepted before us that he said nothing in evidence before the Tribunal as to what that help had involved, whether he had assisted her in preparing documents, whether he had attended with her at meetings, and of course it follows, that, not having given any indication as to what the nature of the assistance was, he also did not give any evidence as to how it was that it could be suggested that the Respondent had known he had given such assistance.

[32]The only other time that this matter arises at all in the evidence, as he accepts, is in cross examination by him of his line manager, Ms Hammond Edgar, and the Notes, which again he accepts in this respect to be accurate, record him as saying this, in questioning of Ms Hammond Edgar:

"At what stage did you know that Mr Radley would be assisting [Ann Cronin]?"

Answer:- "After the [Employment Tribunal] Ann Cronin spoke to me. But as to S. Radley it was afterwards, Ann told me in [December/January]." Then the Appellant turned to ask Ms Hammond Edgar, who was, as we have indicated, his line manager, and therefore responsible for allowing him to have time off :- "Did you/were you aware that S. Radley on leave? Answer:

" I don't query as to what the leave was for if logistically possible ."

The implication, although it does not appear that any express evidence was given behind that question which Mr Radley has explained to us, is that, as he was given permission to take leave on days when the Cronin hearing was taking place, that would suggest that his employers must have known he was going to attend the Cronin hearing. Whether or not it would be sufficient to show that the employers knew that he was to attend the Cronin hearing in any event, the answer he got is there recorded: and he has not asserted before us in answer to a specific question from us - indeed he confirmed that such was not the case - that he gave any evidence before the Tribunal that he had asked if he could have time off in order to attend the Cronin Employment Tribunal. That was not his case either in evidence or in argument, and the highest that it could be put is that he asked for those days off and that the Respondent ought to have appreciated that those were the days of the tribunal. But certainly Ms Hammond Edgar said that she did not so appreciate. The only other time that questions were asked of any of the Respondent's witnesses which might be potentially relevant was in chief of Ms O'Leary, i.e. by her own counsel not by the Appellant, when Mr Hanham asked, according to the Notes, "What did you know about [Employment Tribunal]?"

[33]The implication, although it does not appear that any express evidence was given behind that question which Mr Radley has explained to us, is that, as he was given permission to take leave on days when the Cronin hearing was taking place, that would suggest that his employers must have known he was going to attend the Cronin hearing. Whether or not it would be sufficient to show that the employers knew that he was to attend the Cronin hearing in any event, the answer he got is there recorded: and he has not asserted before us in answer to a specific question from us - indeed he confirmed that such was not the case - that he gave any evidence before the Tribunal that he had asked if he could have time off in order to attend the Cronin Employment Tribunal. That was not his case either in evidence or in argument, and the highest that it could be put is that he asked for those days off and that the Respondent ought to have appreciated that those were the days of the tribunal. But certainly Ms Hammond Edgar said that she did not so appreciate.

[34]The only other time that questions were asked of any of the Respondent's witnesses which might be potentially relevant was in chief of Ms O'Leary, i.e. by her own counsel not by the Appellant, when Mr Hanham asked, according to the Notes, And she answered:

"I knew that [Ann Cronin] was taking [Department] to [Employment Tribunal]. [Circumstances] happened [before] I took over - Haven't seen the official papers"

[35]Although of course it is highly unsatisfactory in a case such as this not to have the notes of evidence, it is equally the case that it is not normally necessary to trawl through the notes of evidence, and they will not normally be ordered. The reason we have done so here is to satisfy ourselves, with the agreement of both sides, by reference to the best available notes of evidence, as to what it is that was before the Tribunal, when one considers the decision that the Tribunal reached, against the background of this appeal.

[36]Perhaps the most useful documents, because they are in no way capable of challenge, are the submissions that were in fact put before the Tribunal by both sides at the close of the hearing. The Respondent's submissions, prepared by Mr Hanham, said this in relation to protected act "9 A relies upon s4(1) (c) SDA 1975 i.e. that he had done or the discriminator knew that he intended to do anything under or by reference to the SDA 1975." The following is set out:

"10 A relies upon his attendance at AC's tribunal on 17/ 18 January 2001 and "assistance with paperwork"

. There is no evidence at all that "he assisted AC". The best evidence is…" And then he refers to the note of the meeting of March 2001:

"11 A went along to see what was said, he "attended purely as an observer…"

And that is of course a reference to the Notes, which, as we have described, were then accepted, and are still now accepted, as accurate in this respect by the Appellant:

"…because he was under similar restrictions to those challenged by AC at that tribunal. 12 There is nothing in that act which amounts to doing something by reference to the SDA 1975. It is submitted that clause ( c) was effectively intended by Parliament (such as it is possible to ascertain without reference to Hansard) as a sweep up clause for actions not specifically caught by paragraphs (a) and (b). And then at paragraph 16: "16 The decision to investigate/ transfer was taken before the tribunal took place. There is no evidence (and [Hammond-Edgar, Shah and O'Leary] deny) that they knew that the Appellant was intending to attend the tribunal (which is only relevant if the tribunal finds that the attendance was prima facie a protected act)."

[37]And then at paragraph 16: It is plain that in summarizing the evidence, no doubt accurately in the belief of Mr Hanham, no other evidence was given before the Tribunal than that to which we have referred.

[38]The Appellant's submissions were as follows:

"I genuinely believe that the Department has victimised me through a series of acts that can be linked directly to the Employment Tribunal on 17/18 th January 2001 where a claim of sex discrimination was brought by Ann Cronin against the Department."

And then there is a handwritten addition:

"The discrimination was restrictions in the workplace upon myself and Ann Cronin."

He continues:

"I attended the Tribunal as a colleague of Mrs Cronin and as the Department was aware, actively supported Mrs Cronin's claim – by assisting Mrs Cronin prepare the case and supporting her on the day."

It was in relation to that assertion of assistance of preparation that the Respondent had indicated, and still indicates, that there was no evidence. "At the Tribunal the Department's barrister pointed me out for being in attendance but not giving evidence to the hearing. The barrister also referred to my appearance on "Who Wants to be a Millionaire" where I was the 'phone a friend' for Mrs Cronin. I believe this constitutes a protected act under the SDA Act 1975 section 4.(c)." Further down the page he says this:- "The meeting at Travis House of 5/1/01 where the Department themselves discuss my transfer from Lewisham to Woolwich is linked precisely to the Department's awareness of the impending Tribunal of Mrs Cronin on 17 /18 th January 2001." This is a reference to the eventual finding that was made by the tribunal to which we will refer. But of course it relates to the earlier matters with regard to the proposal to transfer a number of people including both Mrs Cronin and the Appellant.

[39]The findings by the Tribunal, against this background, in relation to protected act are as follows:

"1 By an Originating Application presented at the tribunal on 14 February 2002 the Applicant complained that the Respondent had victimised him in various ways contrary to s.4(1) of the Sex Discrimination Act 1975, because he supported a colleague, Mrs Cronin at the Employment Tribunal hearing."

Then under paragraph 3 under the issues:

"(ii) whether the Applicant made a "protected act" by attending (but not giving evidence) at Mrs Cronin's Employment Tribunal hearing on 17, 18 January 2001, if yes…"

And the issues on unfavourable treatment are then set out in sub paragraph (iii).

[40]The Tribunal refers to the evidence that it had heard, including the evidence from the Appellant himself, and his trade union representative, Mr Easton. Mr Easton is not subsequently referred to by the Tribunal in its Judgment and, although Mr Radley is critical of that fact, he accepted before us today that Mr Easton in fact gave no evidence relevant to the issue of protected act, but only as to the alleged unfavourable treatment during 2001.

[41]In paragraph 5, certain facts are found by the Tribunal, at considerable length; indeed the paragraph has 36 sub-paragraphs. Included therein is a finding at sub-paragraph (xvii) in relation to the meeting on 5 January 2001, which referred to the grievance issues which had been raised - both by way of complaint against ( inter alios) the Appellant and Mrs Cronin and by them, and to the fact that it was decided that the way forward was to initiate an investigation as soon as possible, and that in the meantime the complainants and the alleged offenders were to be moved from the Lewisham office during the period of the investigation: but that it was expressly decided to delay any action until after Mrs Cronin's Tribunal hearing, coming later in the month. This is of course the meeting at Travis House to which the Appellant made reference in his written submissions, as we have set out.

[42]At sub-paragraph xx the Tribunal makes the following findings:- "(xx) On Wednesday and Thursday 17 and 18 January 2001 the Applicant was in attendance at the Employment Tribunal Croydon and sat in as an observer to a claim brought by Ms Ann Cronin, a work colleague of the Applicant, against the Respondent wherein Ms Cronin had alleged that she had been unlawfully discriminated against by the Respondents on the grounds of her sex. The Applicant did not give evidence at the Tribunal in Ms Cronin's case and there was no suggestion that he would or was likely to do so but he was present in the Tribunal room throughout. The Respondents were aware that the Applicant and Ms Cronin were close colleagues in the office – they worked together and the Applicant was one of Mrs Cronin's friends when she appeared on Who Wants to be a Millionaire." Finally at paragraph 10 the tribunal said this:- "10 "The Tribunal is not of the opinion that the Applicant's attendance at the Employment Tribunal as an observer is conduct which comes within section 4(1)(a)-(b) of the Sex Discrimination Act 1975. That conduct was the only conduct relied upon by the Applicant to constitute a protected act – as there was no protected act there can be no victimisation…" As is plain from that paragraph which we have just cited, the Tribunal, on the face of it, having made detailed findings of fact, only made a conclusion within the terms of s4(1)(a) and 4(1)(b) of the 1975 Act. We should at this stage read s4(1):- "4.-(1) A person (" the discriminator ") discriminates against another person (" the person victimised ") in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has-(a) brought proceedings against the discriminator or any other person under this Act or the Equal Pay Act 1970, or

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act or the Equal Pay Act 1970,… or

(c) otherwise done anything under or by reference to this Act or the Equal Pay Act 1970…in relation to the discriminator or any other person, or

(d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act or give rise to a claim under the Equal Pay Act 1970,… or by reason that the discriminator knows the person victimised intends to do any of those things, or suspects the person victimised has done, or intends to do, any of them."

[43]As we have already recited from the Respondent's Notes, and indeed from the closing submissions from the parties, it was made clear to the Tribunal at the outset that the relevant section relied upon by the Appellant was s.4(1)(c) and, it does appear that part of the problem resulting from the delay was the reference in paragraph 10 to what the Appellant has not surprisingly called the wrong subsections of the Act although, plainly those subsections would have to be considered as well as the material subsection, namely s4(1)(c), by any Tribunal dealing diligently with the case.

[44]Part of the Appellant's notice of appeal was that the Tribunal on its face had not addressed s4(1)(c), and the order of Judge McMullen QC, to which we have referred, invited the Chairman of the employment tribunal, by paragraph 2 of the Order to consider paragraph 1 of the notice of appeal, and pursuant to English v Emery Reimbold

[2003] IRLR 710

, which is of course the Court of Appeal decision which underlies the Burns/Barke procedure, if appropriate to record the Employment Tribunal's decision and reasons on the SDA s4(1)(c) within 14 days of the seal date of the Order.

[45]The Appellant himself made an application for a review of the Tribunal's decision, by reference to Judge McMullen QC's order, by letter dated 23 February 2004. In the unexplained circumstances to which we have referred, it took until September 2004 for that review to be fixed and then for the convenience of the Respondent it was adjourned to November. The Employment Tribunal's decision on the review specifically does that which the EAT asked it to do, namely consider s4(1)(c), but it also, reconsidered, by way of review, its earlier decision, knowing that there had been the criticisms of it, inter alia on grounds of delay and inadequacy of reasoning.

[46]The Review Judgment sets out s4(1)(c), at paragraph 4. At paragraph 7 the Tribunal sets out the quotation, which we have already recorded above, from the Appellant's closing submissions at the original hearing. Then, in paragraph 8, again as we have recited, the Tribunal sets out the record of the meeting of 30 March 2001. It was apparent from both of those documents, as we have said, that at the Tribunal hearing the Respondent had been seeking to rely only on his attendance at the Cronin hearing on 17 and 18 January 2001 together with, in the closing submissions, the short words "by assisting Mrs Cronin prepare the case": although it is equally clear that the record of the meeting confirmed that which we know was said by him at the hearing in addition, namely that he had simply gone along "as an observer" to the Cronin hearing.

[47]The Tribunal continues at paragraph 9 of the Review Judgment as follows:

"9 Further at the Tribunal hearing there was no evidence to suggest that the Claimant had assisted Mrs Cronin with her case or to suggest that the Claimant had visited Mrs Cronin nor was there evidence suggesting that this was known to the Respondent. The Claimant's submission that the Claimant was "supporting her on the day" the reality was that Claimant sat at the back of the Tribunal room he did not give evidence and the Tribunal found his reasons for being there was as he stated in his interview with the Grievance officer [that] as the consequences of the outcome may have affected him he went along "to see what was said" 10 The Tribunal's view was that the Claimant's attendance at Mrs Cronin's Employment Tribunal hearing on January 2001 did not constitute a protected act under S4(1)(c). As it was abundantly clear from the Claimant's evidence given at the internal investigation in March 2001 that he was only an observer at Mrs Cronin's tribunal and that cannot in the Tribunal view be said to have constituted as "done anything under or by reference to this Act". 11. The Respondent's note of evidence records that in cross examination at the hearing the Claimant confirmed that he had attended the Tribunal as an observer and confirmed that he was not relying on the fact that there were internal procedures which he had helped Mrs Cronin to prepare…"

We interpose that we have already recited that passage of the Notes, which is confirmed by the Appellant to be accurate. The Tribunal continues:- "… this accords with the Tribunal's recollection and confirmed by the Claimant's written submission that the only act he was relying on as a protected act was his attendance at Mrs Cronin's Tribunal hearing. 12 The Claimant suggests that that fact must have been known to the Respondents and all concerned because at paragraphs 21 and 22 of Mrs Cronin's Originating Application presented on 16 June 2000 his name had been mentioned. For clarity we set out an extract from her claim which says: "Sex discrimination paragraph 21. On 17 September 1998 the Claimant had a conversation with David Webb concerning restriction of duties as a result of a number of rumours of an alleged affair between the Claimant and another employee named as Steve Radley. At 22; in a letter to the Claimant (Mrs Cronin) on 19 October 1998 he advised her that Steve Radley would no longer be her line manager. He then notified her that the number of restrictions would now come into force. They were not to go on official visits together and he was not to authorise a number of internal forms relating to her", 13 In the Tribunal's view that was not sufficient to suggest that the Respondent therefore knew that Mr Radley intended to do any of these things or suspected he intended to do any of those things referred to at S4(1)(a)-(d) of the Sex Discrimination Act 1975, nor indeed was there any evidence before the Tribunal that the Respondent knew or suspected any such intention. 14 The Tribunal has reviewed its decision as to whether or not the Claimant had done a protected act and its unanimous decision is that on the evidence before the Tribunal the Claimant had not done a protected act, and therefore is not able to bring a claim on victimisation.

[48]In the light of all those matters, which we have recited at length, we have carefully considered whether the impact of the delay by the Employment Tribunal had any effect on the result. We are satisfied that it did not, whether we apply the very strict rules as laid down now by the Court of Appeal in Bangs or the somewhat less restrictive rules in Kwamin , if they were still relevant, or simply ask the question whether we can now say that there was any failure by the Employment Tribunal to take any material matter into account. The answer on each basis must be no. Although the Originating Application on its face went wider than the attendance at the Cronin hearing, the references to earlier 'internal procedures' was expressly abandoned or resiled from by the Appellant, in his description of his case to the Tribunal at the outset of the hearing, as is clear from the Notes and has been confirmed to us again by the Appellant.

[49]Insofar as he made a bald assertion that, in addition to attending, he had helped her prepare in some way, there was no evidence before the Tribunal, once again as the Appellant accepts, as to what that involved. It is to a substantial extent in conflict with his case that he simply went along to the Cronin hearing as an observer, as he not only said in March 2001, but has confirmed that he also said at the Employment Tribunal hearing itself. And it is nowhere evidenced or supported, nor was it in any way explored with the Respondent's witnesses, who gave evidence, which went effectively unchallenged, that they had no idea that he was involved in any preparation for Mrs Cronin's case prior to his attending at the Cronin hearing.

[50]So far as such attendance is concerned, it appears to us quite plain that the Tribunal was entitled to find that to attend as an observer, and not to say anything, but to sit in the back of the court, did not constitute a protected act, but it is difficult to see that in fact it would be even capable of constituting one, had the tribunal been minded to so find, which they were not. Insofar as there was a suggestion made by the Appellant that his presence at the Cronin hearing was pointed out - and the fact that he had thus attended, and had made an earlier grievance not dissimilar from Mrs Cronin, and yet had not given evidence - by way of some kind of adversarial argument in the course of the Cronin hearing, if anything that would appear to us to be evidence that he was not supporting Mrs Cronin: but certainly that would not of itself add anything to the fact that he simply attended as an observer, and that his presence there, not giving evidence, was pointed out by the Respondent.

[51]This is not a case in which he did not have anything whatever to do with the incidents which underlay Mrs Cronin's allegations and the Cronin hearing. He plainly had his own grievance which he was pursuing and gave purpose to his attending her hearing.. But this case is all about whether any alleged unfair treatment by the Respondent was by reason of a protected act by him in support of Mrs Cronin, and this Tribunal was perfectly entitled to find that there had been no such protected act. We are wholly satisfied, after a very full review of all the evidence, that there was no prejudice to the Appellant by virtue of the delay, no material piece of evidence omitted and, indeed the probability is that no other conclusion by this Tribunal could have been reached than was reached.

[52]In those circumstances we have no doubt whatever that this appeal should be dismissed. We would not wish to leave this case without some further comment about the effect of the delay, about which we remain concerned. We emphasize that none of what follows has any impact whatever on our clear decision that this appeal must fail, and that we did not call upon Mr Hanham for the Respondent to deal with any of these matters, insofar as he could have done so.

[53]Mr Hanham submits that had he failed on the existence of the protected act he could in, any event, have relied on the tribunal's findings that none of the alleged unfavourable treatment was by reason of the protected act. We say nothing about that argument, which is only a short point, and as we say, we have not called upon him to deal with it because it is not arisen. But we are concerned about matters that do not, in the event, arise at all, and that concern relates to the findings by the Tribunal as to the unfavourable treatment, alleged in paragraph 3(iii)(a) to (e) of the Issues paragraph in the Judgment. (iii) whether the Respondent victimised the Applicant by:(a) instructing the Applicant to move on detached duty from Lewisham to Woolwich,

(b) Ms K O'Leary notifying the Applicant that he was to be the subject of an equal opportunities investigation,

(d) Ms Hammond Edgar disciplining the Applicant on 26 April 2001

(e) the manner in which the conduct of the equal opportunities investigation was undertaken:- (i) non existent complaint investigated (ii) a number of investigators resulting in inconsistency (iii) failure of investigator to interview certain witnesses (iv) the unfairness of the final report not based on evidence and containing factual inaccuracies.

[54]The issues, in relation to each of the five alleged incidents of unfavourable treatment (a) through to (e), were whether there was such unfavourable treatment, whether it constituted, in whole or in part, a continuing act through to 25 November 2001 such as to render in time earlier acts which would otherwise have been out of time, and if not whether it was just and equitable to allow those incidents to be relied upon.

[55]In the original Employment Tribunal judgment the conclusion was that incidents (a) to (d) were out of time. The conclusion in relation to that is set out very exiguously in paragraph 9 of the Judgment:

"… the conduct the subject of these allegations took place between end of January 2001 and 26 April 2001, they are discrete acts, or alternatively if not and they are considered to be continuing acts of discrimination because of the personalities involved and which are deemed to be treated as having occurred as the date of the last act on 26 April 2001 then the Originating Application having been presented at the Tribunal on 14 February 2002 is some seven months out of time. The Applicant put forward no grounds whatsoever upon which the Tribunal could rely to consider extending time to adjust on an equitable basis – so far as these complaints are concerned the Tribunal has no jurisdiction to hear them, and they can proceed no further."

[56]So far as (a) to (d) are concerned the acts complained of indeed antedated 26 April 2001. But (e) was a complaint about the manner in which the conduct of the Respondent's investigation was undertaken, including the alleged unfairness of the final report prepared by the Respondent, which was not delivered until 25 November 2001. There is no addressing by the tribunal as to the issue as to whether the fact that the last event in (e) was not completed until 25 November 2001 could contribute to a finding of continuing act, not least by reference to oral evidence, upon which, particularly from Ms O'Leary, the Appellant would have relied, or indeed whether it was just and equitable, given the fact that the report was not delivered until 25 November 2001, to extend the Appellant's time until that date.

[57]In the Review Judgment at paragraph 15, the following is stated:

"15 In the Tribunal's original decision the Tribunal recorded that it had gone on to consider … if they were wrong about the protected act whether or not the acts complained of by the Claimant amounted to acts of victimisation and dealt with them on their merits The Tribunal has again reviewed its decision on that aspect and concludes, as it did before, that the various complaints are discrete acts, that the whole raft of complaints made by the Claimant do not amount to continuing discrimination and that the only complaint that was in time was the Claimant's complaint about the way in which the investigation had been carried out The other acts being discrete acts were out of time and that at the original Tribunal hearing the Claimant had not put forward reasons why it was just and equitable to extend time but relied entirely on the fact and a fact that he repeats in his latest submission that the conduct should be considered by the Tribunal as an act of continuing discrimination and that this in accordance with section 68 Race Relations Act 1976…" although, with respect, we do not understand what the Race Relations Act has to do with it- "…would be deemed to have… occurred on the date of the last act of victimisation i.e. the date the report was received by the Claimant. Furthermore some of the acts complained of had been decided upon prior to the 17 January 2001 the date of Mrs Cronin's Tribunal hearing. 16 We have reviewed our decision afresh and again cannot accept that argument,…"

And then it turns to consider (e), which is the manner of conduct of the investigation.

[58]We are concerned that, had it been relevant to hear argument on this point, the Tribunal's conclusions with regard to whether there was unfavourable treatment would not have been Meek- compliant, and that it may be that inadequacy of reasoning resulted from the passage of time, and hence the delay - but there would not have been a need for us to have resolved the issue based on delay, but rather on the inadequacy of the reasoning itself.

[59]So far as (e) is concerned that is of course very much bound up with (a) to (d), as we have earlier described.

(e) in its original Judgment as follows:

"11 If the Tribunal had found a protected act to have been done by the Applicant and had we have [sic] extended time on a just and equitable basis we would not have found that the acts complained of from 23 January to 26 April 2001 were acts of victimisation."

That fallback argument is of course itself plainly not Meek- compliant. It then continues:

"12 As to the acts complained of concerning the conduct of the equal opportunities investigation as there was no protected act the Respondent's conduct was not an act of victimisation…"

That is a finding which reaches no conclusions about (e), but rests its case solely, as in the event we have been satisfied it was entitled to do, on the absence of a protected act.

[60]When it comes to the Review Judgment however, it appears that a different position is taken:

"16 …In the original decision the Tribunal had not gone on to decide whether or not the investigation and the way it was conducted was an act of victimisation, because it was satisfied that because no protected act had taken place but for the sake of clarity, although we criticise the manner in which the investigation was conducted we do not consider that the Claimant was victimised in the way the investigation was conducted. Even if the attendance at Mrs Cronin's Employment Tribunal had constituted a protected act there was no evidence before the Tribunal that Mr Blaney who conducted the investigation was aware of the Claimant's attendance and, as we say, although critical of the delay and the way in which the investigation was conducted we would not have found that that amounted to an act of victimisation."

Not only has the Tribunal in its Review Judgment gone further than it did in its first decision, but once again it is guilty of inadequate reasoning.

[61]However, for the reasons we have given, the fact that the Tribunal has given inadequate reasoning in relation to the unfavourable treatment is of no avail to the Appellant, because the Tribunal also rightly found that, if there was no protected act, then none of that would be relevant. We agree, and we are satisfied that there can be no challenge whether on grounds of delay or any other ground to the Tribunal's findings in that regard.

[62]In those circumstances this appeal is dismissed.