MR C HENRY v LONDON METROPOLITAN UNIVERSITY [2006] UKEAT 0252_06_1909

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2006] UKEAT 0252_06_1909Case No Appeal No. UKEAT/0252/06Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR C HENRYAPPELLANTLONDON METROPOLITAN UNIVERSITYRESPONDENT
Before
His Honour Judge BurkeDate 19 September 2006
[1]APPEARANCES For the Appellants Mr Conan Henry (The Appellant in Person) For the Respondent Ms Ruth Downing (of Counsel) Instructed by: Messrs Simpson Millar Solicitors 165 The Broadway Wimbledon London SW19 1NE SUMMARY The Appellant was found by the Tribunal to have been victimised and discriminated against in three respects; in two cases at the hands of Mr Williams who commenced disciplinary proceedings against him and in one case by the giving of a warning as the outcome of those proceedings by a panel chaired by Dr Aylett. The EAT allowed the Respondent's appeal against two of those findings and remitted the two complaints to the same Tribunal. At the remitted hearing the Tribunal found one of those complaints proved but found against the Appellant on the sanctions issue. The Appellant appealed against the latter finding. Held(1) the fact that one of the lay members of the EAT had dissented from the majority on the sanctions issue at the first EAT hearing did not lead to the conclusion that he should recuse himself at the second EAT hearing: the question before the EAT at the second hearing was different from that at the first. In order for a judge to be required to recuse himself there must be a factor of substance beyond his having decided the issue between the same parties before. Amex v Whitefrairs [2004] EWCA Civ 1418 , and Dobbs v Troodos Bank [2005] EWCA Civ 468 , followed.(2) On the substantive appeal, there was no inconsistency between the Tribunal's first decision and their decision on the remitted hearing at which they were applying the law and answering specific questions as set out in the judgment of the EAT at the first appeal; at the remitted hearing the Tribunal applied the law as that set out, and found facts are required; their factual findings were not perverse; no error of law was made out. HIS HONOUR JUDGE BURKE QC The History This is an appeal by Mr Henry, the Claimant before the Employment Tribunal, against the Judgment of that Tribunal, sitting at London Central and chaired by Mr Carstairs with Miss Dasey and Mr Lucking as lay members, which was sent to the parties with written reasons on 23 November 2005.[2]In order to understand the contents and effect of that Judgment, it is necessary to set out, in brief terms, the history of this litigation between Mr Henry and the Respondents, London Metropolitan University, and the factual background to it. That factual background was summarised by the EAT in an earlier Judgment, handed down on 24 January 2005, at paragraphs 3 to 25. We adopt those paragraphs into this Judgment and do not seek to repeat them or improve on them. The Background[3]Mr Henry claimed that he had been the subject of direct race discrimination and/or victimisation by the University in numerous respects. His complaints were heard over three days in December 2003 by the Employment Tribunal, constituted as it was at the subsequent hearing which resulted in the Judgment now under appeal. The Tribunal, in their first Judgment, given on 10 March 2004, found that the University had been guilty of discrimination on the grounds of race against Mr Henry in one respect only, namely by requiring him to attend a Performance Review and Development ("PRD") meeting, and victimising Mr Henry in two respects, namely(i) by calling him to a disciplinary hearing and(ii) at the end of that hearing giving him, by way of disciplinary sanction, a first and final warning. At a later remedies hearing, Mr Henry was awarded £3375.78 by way of compensation, inclusive of interest.[4]The University appealed against the first liability Judgment; their appeal was heard by a division of the EAT presided over by HHJ Serota QC sitting with Miss Switzer and Mr Yeboah. The EAT decided that where, in response to allegations of discrimination or victimisation, non-discriminatory reasons are put forward by the Respondents to explain why they acted as they did, it is necessary for the Tribunal to make careful and explicit findings of fact to support any inferences which they draw and to explain why, if they do so, they reject any such explanation; see paragraph 36. Applying that principle, the EAT unanimously found that the ET had been entitled to conclude that the University had failed to put forward a satisfactory explanation for calling Mr Henry to a PRD meeting; but by a majority, Mr Yeboah dissenting, the EAT concluded that, in the case of their findings of victimisation, the Tribunal had not set out whether they had rejected the University's explanations and, if they had, why they had rejected them.[5]The EAT, therefore, allowed the appeal to the extent that they set aside the findings in Mr Henry's favour on those two complaints of victimisation and remitted the matter for the Tribunal to make further findings. The further findings to be made are set out in paragraph 59 of the EAT's Judgment as follows:
"59. Accordingly we allow the appeal to the extent that the findings made by the Employment Tribunal in relation to the calling of the disciplinary hearing and the giving of the written warning amount to victimisation cannot stand on the basis of the Employment Tribunal's Decision. We accordingly remit the matter to the Employment Tribunal to make further findings as follows: (a) Whether the Employment Tribunal accepted the University's explanation as to why it called the Claimant to a disciplinary hearing. (b) If that explanation is rejected, why the Employment Tribunal has rejected it. (c) If the Employment Tribunal accepts the University's explanation, whether in the light of our judgment the reason for calling for a disciplinary hearing (and consequently the discipline of the Claimant) was by reason of the Claimant having done a protected act, or whether for the reason put forward by the University. If the latter, the Employment Tribunal must reconsider its two findings of victimisation in the light of this Decision."
[6]For the sake of completeness, it is necessary to say that, meanwhile, on 11 December 2003, Mr Henry had commenced a further set of proceedings in the Tribunal. After various interlocutory skirmishes which involved an appeal to the EAT by Mr Henry, heard by Burton P on 29 June 2005, all his claims made in those proceedings were dismissed by the Tribunal in a Judgment dated 17 August 2005. Mr Henry's appeal against that dismissal was dismissed at a preliminary hearing before the EAT on 19 April 2006.[7]The remitted hearing ordered by the first EAT Judgment took place before the Tribunal, constituted as it had been at the original hearing, over two days in August and September 2005; the Tribunal heard further evidence from Mr Williams and Dr Aylett of the University, and from Mr Henry. Dr Aylett was not permitted to give further evidence in chief, but was further cross-examined. The Tribunal concluded that the bringing of the disciplinary proceedings against Mr Henry by Mr Williams was by reason of a protected act and amounted to victimisation but that the Tribunal was satisfied that the imposition of the sanction of a warning as the outcome of those proceedings, by a panel chaired by Dr Aylett, did not amount to victimisation.[8]Thus, of the three findings in his favour made by the Tribunal in their first judgments, Mr Henry retained at the EAT the finding in his favour of the original Tribunal as to the PRD meeting, and retained at the remitted hearing the finding in his favour as to the calling of the disciplinary proceedings; but he did not retain the finding in his favour on the sanction issue.[9]On 2 December 2005, Mr Carstairs dismissed an application by Mr Henry for a review of the Tribunal's conclusion on the sanction issue. There has been no appeal against the dismissal of that review application.[10]Finally in this history, on 19 April 2006 there were two hearings before the EAT. The first was a rule 3(10) hearing of Mr Henry's appeal against the Tribunal's conclusion on the sanctions issue at the remitted hearing. The second was a bilateral preliminary hearing of Mr Henry's appeal against the Tribunal's conclusions in his further set of proceedings, the result of which we have already set out above. In the present proceedings, HHJ McMullen QC gave Mr Henry permission to pursue his appeal against the conclusion on the sanction issue at the remitted hearing to the full hearing, which took place before us. The Relevant Tribunal Decision[11]At the original hearing, the Tribunal found the facts as to the disciplinary hearing which took place on 14 March 2002, alas now well over four years ago, as follows at paragraphs 67 to 70:
"67. The disciplinary hearing took place on 14 March 2002. The hearing lasted about five hours during the course of which Mr Williams presented the management case and called witnesses and the Applicant questioned Mr Williams and the witnesses. The Applicant believed that the matter had to finish that day, although this was not indicated to him by the panel and it was not a matter about which he asked. He therefore felt constrained to present his own submissions in the space of 45 minutes. The Applicant produced what was referred to in the hearing as the second e-mail dated 14 March, the day of the disciplinary hearing (R1/233 and A4), on which Ms Heaton had written 'submitted as evidence by CH at hearing on 13/3/02', which showed the Applicant's electronic discussion with Microsoft as to how he could find out if emails were being intercepted. 68. The conclusion was notified to the Applicant orally by Ms Heaton on 18 March 2002 and confirmed by Dr Aylett's letter of 21 March 2002. The panel had decided not to consider the e-mail message making the various allegations. However, the panel concluded that Mr Williams had shown that two matters complained about amounted to serious misconduct, namely the fifth and sixth allegations; the sixth allegation was slightly differently worded in the conclusions in that it stated "you made a series of serious allegations of institutional racism…"
In fact, so far as the Applicant himself was concerned, he had made one allegation but a number of times that he had been discriminated against. The panel's decision was that the Applicant should be issued with a first and final written warning to remain in force for six months. 69. The panel found three of the allegations amounted to misconduct but not serious misconduct as follows:
"There had been a number of incidences when you failed to use your best efforts to engage with University procedures, and you had resorted to taking out grievances inappropriately and raising complaints against your supervisors and managers rather than raising routine issues informally or face to face especially since September 2001, and through your actions you had taken up an excessive and disproportionate amount of management time." 70. There were, in effect, items 2, 3 and 7 of the allegations. For these, the Applicant was issued with a written warning to remain in force for a period of six months. The panel considered that the other three elements did not constitute misconduct. The panel also concluded that the Applicant had not been the subject of racism as defined in the Stephen Lawrence Enquiry Report and did not accept that there had been a collective failure by the Respondent in terms of institutional racism. While various managerial issues had arisen, the panel was of the view that these did not constitute manifestations of institutional racism or discrimination. The panel also concluded that tape recording the 18 October 2001 meeting without Mr Williams's prior knowledge had compromised working relationships between the Applicant and his senior manager and that this type of conduct which the Respondent did not condone undermined the trust and confidence to be placed in staff. The panel hoped that the Applicant's future conduct did not lead to a similar situation arising which could have a negative impact on working relationships and could lead to the Applicant being subject to further disciplinary proceedings. It was noted that the Applicant had a right of appeal."
[12]At the remitted hearing, the Tribunal incorporated into their further decision their findings of fact in their original Judgment; see paragraph 2.1 of the remitted Judgment. In their conclusions, at paragraphs 126 to 128 of the original judgment, the Tribunal said:
"126 Issuing a first written warning: The first and final warning was given because the Applicant had, first, made a series of allegations against Mr Williams and the Respondent, secondly, without following due procedure, thirdly, in so doing had called into question the reputation and standing of Mr Williams and the Respondent, fourthly, both internally and externally and fifthly, without providing relevant evidence. During the course of its decision the panel indicated that it had ignored the e-mail of 2/10 December; the Tribunal accepts that since the panel's finding does not appear to rely or refer to the allegations made in that e-mail. 127 The allegations were or race discrimination and were protected acts. The Applicant did not have to follow the harassment etc procedure. It is a truism that an allegation of race discrimination will call the reputation and standing of anyone accused of such into question. The fact that the Applicant complained both internally and externally contributes to the actions amounting to protected acts. The allegation that the Applicant made the allegations without providing relevant evidence appears to relate back to the failure to follow the procedure because the Applicant was unwilling to pursue it without being allowed to have his friend and lawyer present. Section 2 of the 1976 Act does not require than an allegation has to be supported by evidence; indeed, the fact that an allegation can be untrue but still amount to a protected act provided it was made in good faith indicates that evidence is not needed. The failure to produce evidence might be relevant to the issue of good faith, but the Tribunal has concluded that the Applicant's allegations were made in good faith. 128 The Tribunal has concluded that the substantial reason for the final written warning was the making of the allegations. Accordingly the Applicant was treated less favourably for carrying out protected acts. That amounts to victimisation. This complaint therefore also succeeds."
[13]In their further Judgment, after the remitted hearing, the Tribunal made the further findings of fact that Mr Williams's evidence as to how he came to consider and commence disciplinary proceedings had been inconsistent. This formed an important part of their conclusion, at paragraph 4.5, that they did not accept Mr Williams's explanation for the institution of those proceedings; they inferred that it was the fact that Mr Henry had made allegations of race discrimination against the University to an outside person which led Mr Williams to decide to put a disciplinary case together; see paragraph 4.6. Accordingly, the Tribunal concluded at paragraph 4.7 in these terms:
"4.7 Accordingly, the Tribunal has concluded that Mr Williams's action in bringing a disciplinary case against the Claimant was by reason that the Claimant had carried out the protected act and therefore amounted to victimisation."
[14]The Tribunal then went on at paragraph 4.8 to say this:
"4.8 The Tribunal understands that it is also required to reconsider the issue as to whether or not the disciplinary sanctions imposed on the claimant amounted to victimisation. The Tribunal understands this from the parenthesis in paragraph 59(c) of the Employment Appeal Tribunal's judgment."
[15]Their answer to the question which they posed in paragraph 4.8 is set out at paragraphs 4.9 to 4.13, namely:
"4.9 Throughout both hearings it was clear to the Tribunal that Dr Aylett who gave evidence on behalf of himself and the disciplinary panel, was of the view that the Claimant was required to substantiate the allegations he was making against the Respondent and to follow the grievance procedure so that consideration could be given as to whether or not the allegations had been made out. This was notwithstanding the fact that the procedure Dr Aylett had in mind was a voluntary procedure. However, it was also apparent to the Tribunal that Dr Aylett did not appear to have read the relevant procedure but accepted o n Mr Williams's case that the Claimant was required to follow such a procedure if he wished to continue making the allegations he was making. 4.10 Again, as for the issue in respect of Mr Williams, the Tribunal has to consider the protected act or acts and then whether or not Dr Aylett and his panel acted in the way they did by reason that the Claimant had carried out the protected acts which, as already noted in paragraph 29 of Khan , is a subjective test. 4.11 The Tribunal noted and accepted that the panel decided to disregard the December e-mail following representations made by the Claimant in respect of that e-mail. However, there was no doubt that the Claimant had carried out the earlier protected acts. 4.12 The Tribunal has concluded on reviewing its earlier decision that the evidence pointed to the fact that Dr Aylett would have reached a similar decision whether or not the serious allegations being made by the claimant were of discrimination or some other matter not covered by the discrimination legislation. Dr Aylett's concern was that serious allegations were being made without being substantiated and without the Claimant following what Dr Aylett understood to be compulsory procedure. While the imposition of the disciplinary sanctions was 'caused' by the complaints of discrimination, the Tribunal is satisfied that the subjective reason for the disciplinary sanctions was the making of serious complaints without substantiating them and without following due proced8res rather than making complaints of discrimination. 4.13 Accordingly, the Tribunal has concluded that the imposition of the disciplinary sanctions by the disciplinary panel did not amount to victimisation."
[16]It is the conclusion set out in those paragraphs which forms the subject matter of this appeal. The recusal application[17]Before we began to hear the parties' submissions in the appeal, Miss Downing on behalf of the University submitted that Mr Yeboah should recuse himself and should not form part of the division of the EAT hearing this appeal. After her submissions and those of Mr Henry on this application were completed, she and Mr Henry agreed that we should give our decision upon the application verbally there and then and that, if we rejected it, we should move on forthwith to hear the arguments in the appeal and give our reasons for the rejection of the application when we gave Judgment upon the appeal.[18]After retiring for consideration, we informed the parties that the application was rejected. Our reasons for that unanimous conclusion are now set out.[19]Miss Downing directed our attention to paragraph 57 of the first EAT Judgment in which Mr Yeboah's minority view on the issue as to which there was disagreement, namely whether the Tribunal had made findings as to whether they accepted or rejected the University's explanations, were set out in these terms:
"57. This evidence is reflected in the Decision of the Employment Tribunal at paragraph 57. The Employment Tribunal found that Mr Williams told the Claimant he was going to investigate the matter as a potential disciplinary matter. This showed that the immediate cause of the disciplinary hearing was the protected act, that is the sending of the e-mail, and there was accordingly a prima facie case of victimisation which the University was required to explain. The finding at paragraph 123 that Mr Henry was subject to victimisation was on the basis of earlier findings and of necessity it rejected the University's explanation both as to whether it was entitled to require the Claimant to participate in the procedure but also as to whether that was the true reason, on the facts, for calling him to the disciplinary hearing. In other words the Employment Tribunal rejected the University's explanation in its entirety. Thus the Employment Tribunal made sufficient findings to justify its conclusion that the calling of the Claimant to disciplinary proceedings and the written warning were acts of victimisation."
[20]She submitted that, had the matter been left to Mr Yeboah, he would have dismissed the University's appeal on that issue and that he had made it clear that he was satisfied that the University had victimised Mr Henry by administering the sanction of a warning. Now, Miss Downing submitted, Mr Yeboah was being asked again to consider the same point and to answer the same question. The task thus set to Mr Yeboah was one which would give rise in the mind of any fair-minded member of the public to an appearance of bias. The University, it was submitted, would have to persuade Mr Yeboah to a different view on the same facts and the same point of law of something as to which he had already expressed a clear opinion.[21]We must make it clear that Mr Yeboah is not alleged to have said or done anything during the hearing of the first appeal which in any way could be said to indicate actual bias. What is relied upon is apparent bias, on the basis which we have just described.[22]The test of apparent bias, as set out in Locabail v Bayfield Properties Ltd [2000] QB 457 and refined by the House of Lords in Porter v Magill [2002] 2AC 357 , is whether a fair-minded and informed observer, having considered all the circumstances which have a bearing on the suggestion of bias, would conclude that there was a real possibility of such bias. In Locabail at paragraph 25, the Court of Appeal said:
"It would be dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias. Everything will depend on the facts, which may include the nature of the issue to be decided… a real danger of bias might well be thought to arise if there were personal friendship or animosity between the judge and any member of the public involved in the case; or if the judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case; or if, in a case where the credibility of any individual were an issue to be decided by the judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person's evidence with an open mind on any later occasion; or if on any question of issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind… or if, for any other reason, there were real ground for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues before him. The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection. In most cases, we think, the answer, one way or the other will be obvious. But if in any case there is a real ground for doubt, that doubt should be resolved in favour of recusal. We repeat: every application must be decided on the facts and circumstances of the individual case. The greater the passage of time between the event relied on as showing a danger of bias and the case in which the objective is raised, the weaker (other things being equal) the objection will be"
[23]That paragraph contains a clear indication that, without more, the fact that a judge, earlier in the same case, has reached a decision adverse to one of the parties before him should not ordinarily be taken to give rise a case of apparent bias.[24]We drew the attention of the parties to two recent decisions of the Court of Appeal, AMEC Projects v Whitefriars City Estates Ltd [2004] EWCA Civ 1418 , Judgment 28 October 2004, and Dobbs v Troodos Bank NV [2005] EWCA Civ 468 , Judgment 15 April 2005. In AMEC an adjudicator appointed to determine a dispute in relation to a construction contract decided that AMEC should recover in full the amount which they claimed. It was subsequently held in the Construction and Technology Court that the adjudicator had not been appointed in accordance with the terms of the relevant contract and his decision was therefore a nullity. The Royal Institute of British Architects had, in those circumstances, to nominate an adjudicator; the same adjudicator was nominated; and he accepted the new nomination. He again found that AMEC should recover in full. Whitefriars's challenge to his adjudication succeeded at first instance but failed in the Court of Appeal. Dyson LJ, with whom Chadwick LJ and Kennedy LJJ agreed, said, at paragraphs 20 to 21:
"20. In my judgment the mere fact that the Tribunal has previously decided the issue is not of itself sufficient to justify a conclusion of apparent bias. Something more is required. Judges are assumed to be trustworthy and to understand that they should approach every case with an open mind. The same applies to adjudicators, who are almost always professional persons. That is not to say that, if it asked to redetermine an issue and the evidence and arguments are merely a repeat of went before, the Tribunal will not be likely to reach the same conclusion as before. It would be unrealistic, indeed absurd, to expect the Tribunal in such circumstances to ignore its earlier decision and not to be inclined to come to the same conclusion as before, particularly if a previous decision was carefully reasoned. The vice which the law must guard against is that the Tribunal may approach a re-hearing with a closed mind. If a judge has considered an issue carefully before reaching a decision on the first occasion it cannot sensibly be said that he has a closed mind if, the evidence and arguments being the same as before, he does not give as careful a consideration on the second occasion as on the first. He will however be expected to give such reconsideration of the matter as is reasonably necessary for him to be satisfied that his first decision was correct. As I have said, it will be a most unusual case where the second is for practical purposes an exact re-run of the first. 21. The mere fact that the Tribunal has decided the issue before is therefore not enough for apparent bias. There needs to be something of substance to leave the fair-minded and informed observer to conclude that there is a real possibility that the Tribunal will not bring an open mind and objective judgment to bear. As was said in Locabail the mere fact that the Tribunal has previously commented adversely on a party or found his evidence unreliable would not found a sustainable objection. On the hand, if the Tribunal had made an extremely hostile remark about a party the position might well be different…"
[25]In Dobbs an Appellant acting in person asked Chadwick LJ to recuse himself because he had criticisms to make in the European Court of Human Rights of the conduct of Chadwick LJ in an application for permission to appeal in related proceedings. Chadwick LJ said, at paragraphs 7 and 8:
"7 It is always tempting for a judge against whom criticisms are made to say that he would prefer not to hear further proceedings in which the critic is involved. It is tempting to take that course because the judge will know that the critic is likely to go away with a sense of grievance if the decision goes against him. Rightly or wrongly, a litigant who does not have confidence in the judge who hears his case will feel that, if he loses, he has in some way been discriminated against. But it is important for a judge to resist the temptation to recuse himself simply because it would be more comfortable to do so. The reason is this. If judge's were to recuse themselves whenever a litigant – whether it be a represented litigant or a litigant in person – criticised them (which sometimes happens not infrequently) we would soon reach the position in which litigants were able to select judges to hear their cases simply by criticising all the judges that they did not want to hear their cases. It would be easy for a litigant to produce a situation in which a judge felt obliged to recuse himself simply because he had been criticised – whether that criticism was justified or not. That would apply not only to the individual judge, but to all judges in this court; if the criticism is indeed that there is no judge at this court who can give Mr Dobbs a fair hearing because he is criticising the system generally, Mr Dobbs's appeal could never be heard. 8. In the circumstances of this case, I have considered carefully whether I should recuse myself. Mr Dobbs has not advanced this morning any reason why I should approach his appeal with a disposition to decide against him, other than that he tells me that he is criticising me in relation to past conduct. That, I am afraid, is not a good reason for me to recuse myself. I do not do so. The other members of the court who are within the rather wider ambit of Mr Dobbs's application take the same view…"
[26]Miss Downing pointed out that Chadwick LJ's previous involvement with Mr Dobbs had been in different, albeit related, proceedings and that, in AMEC, the central issue related to the construction of contractual provisions; neither case involved a redetermination of the self-same factual issue. We accept those distinctions. Nevertheless the principle which emerges from the authorities is clear; a judge should not recuse himself merely because he has previously decided the issue between the same parties or because it would be more comfortable either to him or to one of the parties to do so. These commonsense principles must apply to members of the EAT, both judicial and lay, as they do to judges in the setting of a court and to adjudicators appointed under contract. There must be something more which is of substance and which would lead the fair-minded and informed observer to conclude that there is a real possibility that the decision-maker who is impugned will not be able to bring an open mind and objective judgment to bear.[27]We do not agree with Miss Downing that the circumstances of this case reveal any such extra factor. First, Mr Yeboah made no factual decision on any issue in the course of the last appeal. He was considering the University's complaint that the Tribunal had not, in their first Judgment, said whether they accepted or rejected the University's explanation of the giving of the warning. He expressed the view, based on his reading of the relevant words of the Tribunal's first judgment, that the Tribunal had decided to reject that explanation. Secondly, his view did not prevail; the present appeal arises out of the remitted hearing. At that remitted hearing the Tribunal found on the facts that they accepted the University's explanation. Mr Henry's appeal now gives rise to a wholly different question or questions from that which was before the EAT at the first appeal namely(1) whether that finding of fact was perverse or whether there was evidence on which a reasonable Tribunal could base that finding(2) whether that finding of fact was properly reasoned or was otherwise reached in error of law. In our judgment, there is nothing arising from Mr Yeboah's views, as expressed in the first appeal, which would give rise in the mind of the fair-minded and informed observer to a conclusion that Mr Yeboah could not accept that the decision of the majority at the first appeal prevailed, that the Tribunal had, as a result, heard further evidence and argument and that the Tribunal had reached a finding of fact on the issue of the University's explanation for the warning, which finding of fact is now the subject of attack in the second appeal. Mr Yeboah's expression of view in the first appeal related to particular words in the Tribunal's first Judgment which are now no longer of relevance. He has never expressed a view upon the different question which arises for the first time in the second appeal, namely whether the Tribunal's conclusion as to the explanation expressed in paragraphs 4.9 to 4.13 of their second Judgment was perverse or reached in error of law.[28]For those reasons, we rejected Miss Downing's application and, having setting out those reasons, proceed in this Judgment to address the submissions on the merits of the appeal. Mr Henry's grounds of appeal[29]At the beginning of his Notice of Appeal, Mr Henry raises general issues as to whether black people can obtain justice under the British judicial system and whether the EAT is racist, which issues he has raised on earlier occasions. He did not repeat or refer to those points in his oral submissions; as the EAT has done on previous occasions in the course of this litigation, we propose to disregard these general points and concentrate on the arguments which are put forward in order to establish an error of law on the part of the Tribunal.[30]Neither in his skeleton argument nor in his oral submissions did Mr Henry go through his grounds of appeal and present arguments on each. He concentrated on particular points which he regarded as of importance. In fairness to him we believe it right to consider all of his grounds of appeal, whether the subject of specific argument or not. We intend no criticism of Mr Henry in saying that he did not cover all the ground included within his Notice of Appeal; he put forward his arguments to us courteously and firmly. We are grateful to him and to Miss Downing for the assistance which they have given.[31]We do not intend to set out each ground of appeal in the relevant parts of the Notice of Appeal, paragraphs 7 to 21. In summary terms, the points which Mr Henry puts forward are as follows:(1) The Tribunal did not present findings of fact to show why their initial decision was changed. There is insufficient reasoning to show why the Tribunal accepted Dr Aylett's explanation. See grounds 7 and 8.(2) It is not clear why the Tribunal found that the disciplinary proceedings constituted less favourable treatment; and the Tribunal has not set out what detriment it may have caused to Mr Henry. See paragraph 9.(3) The finding of the Tribunal at paragraph 4.12 that the subjective reason for the disciplinary sanction was the making by Mr Henry of serious complaints without substantiating them and without following due procedures was contrary to the evidence; the Tribunal departed from what had been the University's case as to the reason for the sanction. Race was a substantial and operative factor in those reasons. See paragraphs 10 to 12.(4) The Tribunal erred in separating the disciplinary process into discrete but separate acts, viz. the calling of the disciplinary proceedings and the sanction which emerged from them. See paragraph 13.(5) The Tribunal failed to identify relevant facts and in particular how and why Dr Aylett thought that the procedures were compulsory. See paragraph 14.(6) It is clear that race was a substantive reason for the sanction; but for the racial complaints Mr Henry would not have been subject to a disciplinary sanction. Intention or motive to discriminate is irrelevant in discrimination cases. See paragraphs 15 and 16.(7) It is not clear on what facts the Tribunal concluded that Dr Aylett would have issued a warning in a similar situation had race not been an element in Mr Henry's complaint. Two other members of staff, one white one black, were not disciplined for making non-racial complaints which they chose not to pursue through the procedures. See paragraph 17.(8) The email sent by Mr Henry which triggered the bringing of the disciplinary proceedings was in the minds of the panel and had a major bearing on the disciplinary sanction. See paragraph 18.(9) The Tribunal ignored Owen & Briggs v James [1989] IRLR 502, and relied excessively on Chief Constable West Yorkshire Police v Khan [2001] IRLR 830 . See paragraph 19.(10) The Tribunal did not follow the guidance in Anya v University of Oxford [2007]. See paragraph 20.(11) The Tribunal did not follow the principles as to the burden of proof set out in King v The Great Britain-China Centre [1991] IRLR 513 . See paragraph 21.[32]We propose to address each of these points in the above order, using the numbers we have given them.[33]Before we set out our conclusions on each of these points it is necessary briefly to refer to some important principles of law. Section 2(1) of the Race Relations Act 1976 provides that a person discriminates against another if he treats that person less favourably than in the same circumstances he treats or would treat other persons by reason that the other person has done one of the protected acts set out in subparagraphs (a) to (d) of the subsection.[34]In its first decision, the EAT referred at length to the leading case on the words "and does so by reason that" the person victimised has done a protected act, Chief Constable West Yorkshire Police v Khan ( supra ). The facts of that case are summarised at paragraph 45 of that Judgment. The employer's appeal to the House of Lords succeeded. We should set out paragraphs 23 and 29 of the speech of Lord Nicholls (as did the EAT in January 2005), which are in these terms:
"23. Victimisation occurs when, in any circumstances relevant for the purposes of any provision of the Act, a person is treated less favourably than others because he has done one of the protected acts. Thus, the definition of victimisation has, essentially, three ingredients. The first is 'in any circumstances relevant for the purposes of any provision of this Act'. This is a reference to circumstances in respect of which discrimination is unlawful under the Act. For instance, under section 4(2) it is unlawful for an employer to discriminate against an employee by dismissing him. If an employee brings a victimisation claim based on his dismissal, the relevant circumstances are his dismissal by his employer. In the present case Sergeant Khan is treated as employed by the chief officer of police of West Yorkshire: see section 16 of the Act. The relevant circumstances are that, while employed, Sergeant Khan requested a reference when seeking new employment and his request was refused." 29. Contrary to views sometimes stated, the third ingredient ('by reason that') does not raise a question of causation as that expression is usually understood. Causation is a slippery word, but normally it is used to describe a legal exercise. From the many events leading up to the crucial happening, the court selects one or more of them which the law regards as causative of the happening. Sometimes the court may look for the 'operative' cause, or the 'effective' cause. Sometimes it may apply a 'but for' approach. For the reasons I sought to explain in Nagarajan v London Regional Transport [2001] 1 AC 502, 510-512, a causation exercise of this type is not required either by section 1(1)(a) or section 2. The phrases 'on racial grounds' and 'by reason that' denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact."
[35]In paragraph 31 Lord Nicholls continued as follows:
"31. Mr Hand QC submitted that Cornelius v University College of Swansea [1987] IRLR 141 was wrongly decided. I do not agree. Employers, acting honestly and reasonably, ought to be able to take steps to preserve their position in pending discrimination proceedings without laying themselves open to a charge of victimisation. This accords with the spirit and purpose of the Act. Moreover, the statute accommodates this approach without any straining of language. An employer who conducts himself in this way is not doing so because of the fact that the complainant has brought discrimination proceedings. He is doing so because, currently and temporarily, he needs to take steps to preserve his position in the outstanding proceedings."
For the words "needs to take steps to preserve his position in the outstanding proceedings" for present purposes the words "needs to conduct his business including disciplinary proceedings which have been brought against an employee" can be appropriately substituted.[36]As did the EAT in January 2005, we should also refer to the quotations from Lord Hoffman and Lord Scott of Foscote set out at paragraph 48 of the earlier Judgment.[37]In the light of Khan and the EAT's January 2005 Judgment, with which we wholly agree, what the Tribunal had to consider at the remitted hearing was not the causation of the administration of the sanction but the University's explanation as to its reason for the administration of the sanction.[38]We did not hear any argument as to whether the reverse burden of proof in section 54(a) of the 1976 Act or the principles in Igen v Wong [2005] IRLR 258 apply or do not apply to a victimisation case; that was because Miss Downing accepted, for the purposes of this appeal, that the burden of proof lay on the University as to its non-discriminatory reason for the imposition of the sanction upon Mr Henry.[39]We should make one more point before turning to the individual arguments which we have distilled from what Mr Henry has written and said in support of his appeal. There is, as Miss Downing correctly submitted, no inconsistency between the Tribunal's conclusion as to Mr Williams's explanation for the bringing of the disciplinary proceedings and the Tribunal's conclusion as to Dr Aylett's explanation for the outcome. There was no suggestion that Mr Williams made the panel's decision; there was no suggestion that Dr Aylett or his colleague who formed the panel with him was instrumental in the bringing of the disciplinary proceedings. The two acts, of bringing the disciplinary proceedings and of the imposition of a sanction at the end of them, were from the start put forward by Mr Henry as different acts of victimisation and have throughout been treated as such; see the first Tribunal decision, paragraph 7, paragraphs 121 to 123 and 126/127. The University's attempt to establish a non-discriminatory explanation of the former rested on the evidence of Mr Williams which the Tribunal found to be inconsistent and unpersuasive. The University's attempt to establish a non-discriminatory explanation for the latter rested on the evidence of Dr Aylett about which the Tribunal expressed no criticism at all.[40]We turn then to the individual criticisms of the Tribunal's remitted Judgment. As to Point 1, we do not accept Mr Henry's arguments. The original decision was held by the EAT in its first Judgment to be defective because it did not state whether the explanation given by Dr Aylett at the first hearing – which was that which was ultimately accepted; (see the notes of Dr Aylett's evidence at page 145 of the bundle before us – a note to which we will return) - had been rejected or accepted and, if it had been rejected, why it had been rejected; see paragraph 58 of the EAT's first Judgment. The Tribunal were directed to make further findings as to whether the University's explanations were accepted and whether, if so, the reason for the administration of the sanction at the end of the disciplinary proceedings was by reason of Mr Henry's having done a protected act or for the reason put forward by the University; see paragraph 59(a) and 9c) of the EAT's earlier Judgment. It is quite clear, in our judgment from the remitted decision why the Tribunal reached, on the sanction issue, a decision which was different from that which they had reached in their first Judgment. The law which they had to apply was set out for them by the EAT; the relevant question arising from the law was directed by the EAT to be answered; and the Tribunal, adopting as a result a new approach and after hearing further evidence, posed a question which they had not answered before and answered that question. The Tribunal accepted Dr Aylett's evidence, as their remitted decision makes clear, in contrast to their non-acceptance of Mr Williams's evidence. The Tribunal expressly took into account, at paragraph 4.9, that Dr Aylett regarded as compulsory a procedure which was in truth voluntary.[41]It was not, in our judgment, necessary for the Tribunal to explain further why, as a result of their posing the right question and setting out their answer on the facts, they reached a conclusion on the sanction issue which differed from that reached, in error of law, in their first Judgment. The Tribunal set out their findings of fact adequately to comply with the principles in Anya . The findings of fact and the basis for them are appropriately set out. At paragraph 4.1 the Tribunal explained the legal principle which lay behind their asking themselves the correct question at paragraph 4.10. The Tribunal answered that question satisfactorily by accepting Dr Aylett's evidence as to his reason for the imposition of the sanction, namely that serious allegations had been made but had not been substantiated and without Mr Henry having followed what Dr Aylett believed to be a compulsory procedure; they found as a fact that that was the subjective reasons for the imposition of the sanction.[42]Point 2 does not, in our judgment, give rise to any error of law on the part of the Tribunal. In many if not most victimisation cases less favourable treatment is not in dispute; but in any event it was not in dispute at the remitted hearing; and the present appeal lies against the conclusions at the remitted hearing alone. As to detriment, it is not necessary for a Claimant to establish detriment as an element in victimisation; the nature and extent of any detriment will be relevant to remedy. Further, if the Tribunal could be said to have erred in relation to differential treatment or detriment, such an error would not be one of which Mr Henry could complain. At the remitted hearing the Tribunal proceeded on the basis that less favourable treatment was established and considered, pursuant to the EAT's direction, the reason for it.[43]Mr Henry in his oral submissions placed considerable emphasis on point 3. He drew our attention to the notes of Dr Aylett's cross-examination (to which we have referred above) in which Dr Aylett is recorded as saying:
"We did not issue warning because you raised the matter but because you failed to substantiate and follow through proper procedures so that Mr Williams and Respondent could have right of response."
At paragraph 44 of its first Judgment the EAT said:
"44. It will be recalled that both at the Employment Tribunal and before us the case for the University was that it was not the fact that the Claimant had made complaints which were protected acts that led to the disciplinary proceedings but the fact that having made them he refused to assist the University in investigating them or in substantiating them."
[44]Mr Henry referred us to the decision letter of the disciplinary panel, written by Dr Aylett and dated 21 March 2002. His argument was that the University had changed its ground and that the Tribunal failed to appreciate that it had done so.[45]We have not been able to discern any substantial variation between the case put forward at the original Tribunal hearing and that put forward at the remitted hearing or any other relevant inconsistency. Throughout Dr Aylett appears to have said consistently that neither race nor the making of allegations of racism was the reason for the sanction, but that the reason for the sanction was Mr Henry's failure to substantiate his allegations and his failure to pursue proper procedure.[46]We would add that, even if there had been some discrepancy, Mr Henry would no doubt have drawn it to the Tribunal's attention; it would have supported his argument that Dr Aylett's evidence should not be accepted; but the Tribunal would not have been required to reject that evidence; it was for the Tribunal to consider and decide whether to accept or reject what Dr Aylett said; their factual assessment was that it should be accepted. The Tribunal's decision was one of pure fact. We see no error of law arising from this part of Mr Henry's argument.[47]Mr Henry further submitted that Dr Aylett had never said that he would have taken the same action if Mr Henry's complaints had not been based on race; he pointed out that Dr Aylett was not expressly asked whether he would have taken the same action in that situation at either hearing and that he had only said that he had taken the action he did for the non-discriminatory reason which we have set out. Accordingly, there was no evidential justification for the Tribunal's conclusion in the first sentence at paragraph 4.12.[48]Miss Downing told us that Mr Henry had, in fact, asked that question directly of Dr Aylett and got the wrong answer at the remitted hearing. Mr Henry did not accept that this was so. We do not need to resolve that difference of recollection. While we appreciate Mr Henry's reasons in putting this argument forward, it is based on a misconception of the relevant sentence in the Tribunal's Judgment. The Tribunal were not there specifically recording that Dr Aylett had expressly stated the relevant proposition. Their use of the words "the evidence pointed to the fact" indicates the Tribunal were drawing an inference based on the evidence which Dr Aylett undoubtedly did give as to his reasons for the imposition of the sanctions. It was not essential to the Tribunal's conclusion in that sentence that there should have been express evidence; Dr Aylett's evidence as to the reason for the sanction was capable of supporting the inference which the Tribunal drew (if there was no such express evidence). It was open to the Tribunal to draw that inference.[49]As to point 4, we have referred in our earlier general comments, at paragraph 39 above, to the difference between the University's answer to the victimisation claim in respect of the disciplinary proceedings and its answer to the victimisation claim in respect of the sanction which emerged from those proceedings. Mr Henry's argument was that the Tribunal should not have treated the two differently because they both stemmed from and were substantially caused by the same event, namely his making of complaints about discrimination. If we were to adopt the approach that, absent Mr Henry's making of his complaints about discrimination, there would have been no sanction, we would necessarily recognise the strength of his argument. However, in our judgment, Khan makes it clear, as did the EAT in its first Judgment, that the "but for" test is inappropriate to consideration of a victimisation claim. The correct test is that which we have set out at paragraph 37 above. The Tribunal, having been guided by the EAT's first Judgment, applied the correct test, namely whether they accepted Dr Aylett's evidence as to his reason for the issuing of the sanction. There was no inconsistency between their conclusion on the facts as to Mr Williams's explanation for the bringing of the disciplinary proceedings and their conclusion on the facts as to Dr Aylett's explanation for the result of those proceedings. There was no reason in law or based on the evidence which obliged the Tribunal, having reached the conclusion they did in respect of the former, to reach the same conclusion in respect of the latter.[50]As to point 5, there is nothing to indicate that the Tribunal lost sight of the fact that one of the functions of the disciplinary hearing was to assess the validity of the charges brought by Mr Williams against Mr Henry. In their first Judgment, the Tribunal set out the process of and conclusions of the disciplinary hearing in considerable detail. At the remitted hearing, the Tribunal were not engaged in any form of review of the disciplinary proceedings; they were engaged upon the specific tasks identified in paragraph 59 of the EAT's first Judgment and, in relation to sanction, the task of considering whether they accepted or did not accept Dr Aylett's evidence as to the reasons why the sanction was administered. As to the procedure which it was said Mr Henry had not followed, the Tribunal made express findings at paragraph 4.9 and at paragraph 4.12. The Tribunal accepted his evidence that he regarded the procedure as compulsory; they took into account at paragraph 4.9 that it was not compulsory, that Dr Aylett had not read it and that he accepted what Mr Williams told him about it. They found that he believed it to be compulsory. They did not have to go further to spell out why they so found; their reasons are apparent; he had not looked at it but had proceeded on the basis of what Mr Williams, the University's Director of Information Systems and Services, had told him.[51]Point 6. As to whether the Tribunal considered whether Dr Aylett's view was motivated consciously or subconsciously by race, the Tribunal made the express finding which we have referred to several times already in this Judgment that they accepted his evidence as to his reasons for the sanction. Mr Henry's case was that Dr Aylett's evidence was untrue and should not be accepted and that he had been motivated by considerations of race; but the Tribunal rejected Mr Henry's case on the facts and accepted Dr Aylett's evidence.[52]A further point taken by Mr Henry was that Dr Aylett knew that he (Mr Henry) was going to institute Employment Tribunal proceedings and that Dr Aylett was, as a result, consciously or unconsciously motivated to pursue a discriminatory course of action against him; alternatively he was similarly motivated by Mr Williams's discriminatory action. These were, however, factual points which were available to be canvassed in cross-examination and argument before the Tribunal. Our function as an Appellant Tribunal is not to review the evidence and form our own views on the facts but to decide whether the Tribunal's conclusions were based on any error of law. As Mr Henry developed his oral submissions it became clearer that, although he did not expressly put his argument this way, the thrust of his case was that the Tribunal's factual conclusion as to Dr Aylett's evidence was perverse.[53]At paragraph 4.9 the Tribunal found as fact, on the basis of Dr Aylett's evidence at both hearings, that he believed that Mr Henry was required to substantiate his allegations and to follow the grievance procedure. Dr Aylett's evidence to that effect at both hearings was, as we have already said, consistent, and consistent with the decision letter of 21 March 2002. Dr Aylett's answer at the first Tribunal hearing (page 145 of our bundle, see above) has already been set out; Mr Henry accepted that Dr Aylett gave similar evidence at the second hearing. There has been no suggestion that, in the course of cross-examination at the second hearing, Dr Aylett said anything which substantially undermined what he had said previously. In the light of the material before the Tribunal, it was in our judgment open to the Tribunal, who had seen the documentary material and who heard Dr Aylett give evidence and be cross-examined on two separate occasions to the same effect, to reach the factual conclusions that they did at paragraphs 4.9 to 4.12. No material factor was omitted; the Tribunal's conclusion has not been shown to have been one which no reasonable Tribunal could reach. There was plainly evidence to support the Tribunal's factual conclusion which was, in our judgment, not perverse.[54]We have addressed the arguments which we have summarised as point 6. We can appropriately address point 9 at the same time. Owen & Briggs v James was a direct discrimination claim; the discrimination consisting of the non-appointment of the Claimant to a shorthand-typist position. The Tribunal concluded that an important factor, though not the sole factor, in the conduct of the Respondents in not employing the Claimant was her colour. The Court of Appeal upheld that approach as correct in law. Mr Henry submits that, in this case, his complaint of race discrimination was a substantive reason for the administration of the warning. The Tribunal should not have approached the issue on the basis on the basis of Khan . However, Owen & Briggs was not a victimisation case; the principle which had to be followed was set out in Khan , in the passages we have referred to above and was set out by the EAT. The Tribunal were, as we are, bound to apply the law as set out in Khan . We repeat that the "but for" test or causation test was not appropriate to the task upon which the Tribunal were engaged at the remitted hearing.[55]The thrust of point 7 is a comparison between what happened in Mr Henry's case on the one hand and the case of two members of staff, Ms Cole (white) and Ms Kebede (black) on the other. Mr Henry says that both made complaints which were not racially based, chose not to pursue those complaints through the procedures and were not disciplined. This, he submits, should have led to the inference that he was disciplined as a result of his making complaints of race discrimination.[56]It is necessary, first, to point out that the Tribunal at the remitted hearing were not involved in a comparative exercise; the remitted hearing proceeded on the basis that less favourable treatment was established. However, Mr Henry's point is that, in the light of what happened in the cases of Ms Cole and Ms Kebede, Dr Aylett's explanation should not have been accepted and the Tribunal should not have inferred or concluded that, absent the racial element in his complaints, the outcome of the disciplinary proceeding would have been the same.[57]Miss Downing responded with two arguments which seem to us to be insuperable. The first was that the cases of the other two members of staff were not raised before the Tribunal, either by way of comparison with Mr Henry's case or more generally. The second was that it was not put to Dr Aylett that there was no evidence that he knew anything about either of those two other cases.[58]Mr Henry pointed out that, in the Tribunal's first judgment, there was, at paragraph 39, reference to Ms Kebede and, at paragraph 31, reference to Mr Williams having interviewed most of the employees in the relevant department – which included Ms Kebede who, together with Ms Cole, had also complained about Miss Sneddon. However, those references are a long way from any indication that any attempt was made at either Tribunal hearing to attack Dr Aylett's evidence on the basis of what had happened to other members of staff. Mr Henry also referred us to page 8 of the transcript of the disciplinary proceedings where it was recorded that Ms Cole and Ms Kebede had complained about Miss Sneddon. However, as Mr Henry accepted, neither Ms Cole nor Ms Kebede pursued her complaint. While Mr Henry asserted that Mr Williams knew about the two other cases, he did not suggest that there was any evidence that Dr Aylett knew about them. Accordingly, those cases, even if relied upon, could not have affected the Tribunal's view of Dr Aylett's evidence. Furthermore, for the purposes of Dr Aylett's role, the cases of those two other members were not at all comparable; there were no disciplinary proceedings in relation to either of them. They were not employees against whom disciplinary proceedings were taken for making allegations which they would not substantiate and in respect of which they would not go through the procedure, which allegations were not connected with race.[59]At point 8 Mr Henry contends that, contrary to the University's case, the email sent by him which was central to Mr Williams's decision to bring disciplinary proceedings against him was in the thoughts of the disciplinary panel and had a major bearing on the sanction. The Tribunal found at paragraph 126 of their first decision that they accepted the evidence of Dr Aylett that the panel had, in reaching its decision, ignored that email. Mr Henry did not seek to put in a cross-appeal to the University's appeal against the Tribunal's first Judgment. In the Tribunal's second decision there is no further reference to the disciplinary panel's approach to the email. It is, in our judgment, accordingly, not open to Mr Henry now to seek to challenge in this appeal the finding of fact which was made in the first appeal. But if we are wrong about that, the finding was a finding of fact; and there was evidence to support it. That evidence consisted, first, of Dr Aylett's own evidence about it; and secondly there were the contents of the panel's decision letter itself. The Tribunal's conclusion as to the role of the email in the panel's consideration was plainly one which it was open to them to reach.[60]As to point 10 we have already set out our conclusion that the Tribunal made sufficient findings of fact and set out their reasons for their decision sufficiently to comply with the principles set out in Anya and other leading cases such as Meek v City of Birmingham District Council [1987] IRLR 250 CA, and English v Emery Reimbold & Strick Ltd [2003] IRLR 710 . We do not propose to add further to what we have said above.[61]Finally, as to point 11, it was accepted by Miss Downing that the burden of proof on the decisive issue lay on the University; thus she accepted or acknowledged a position as to the burden of proof which differed from that in King . The Tribunal can be seen, in our judgment, to have approached their decision correctly in the light of Miss Downing's acceptance that the burden of proof lay on her clients. They did not find that Mr Henry had not satisfied them as to his version of the reason for the imposition of the disciplinary sanction; they found that they were satisfied that the reason for the sanction was that put forward by Dr Aylett; see paragraph 4.12. They made no error in respect of the burden of proof. Conclusion[62]For the reasons we have set out, none of Mr Henry's criticisms of the Tribunal's remitted decision have succeeded in demonstrating any error of law on the part of the Tribunal which was tasked by the first EAT decision with the job of making purely factual decisions and did so in a manner which was open to them on the evidence. Accordingly this appeal must be dismissed.