REDCAR AND CLEVELAND BOROUGH COUNCIL v MRS P SCANLON [2007] UKEAT 0369_06_2205

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2007] UKEAT 0369_06_2205Case No Appeal No. UKEAT/0369/06Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
REDCAR AND CLEVELAND BOROUGH COUNCILAPPELLANTMRS P SCANLONRESPONDENT
Before
His Honour Judge Birtles Mr P GammonDate 22 May 2007
[1]APPEARANCES For the Appellant Sharon Langridge (Solicitor) 8 Stratford Grove Terrace Newcastle upon Tyne NE6 5BA For the Respondent Mr M A Hay (of Counsel) Instructed by: UNISON Employment Rights Unit 1 Mabledon Place London WC1H 9AJ SUMMARY Unfair dismissal – Automatically unfair reasons/ Reasonableness of dismissal Appeal on the grounds that the Employment Tribunal had not applied the correct statutory tests of causation under s.103A Employment Rights Act 1996 and s.4(1) Sex Discrimination Act 1975 upheld. The Employment Tribunal erred in finding only a causation link and failed to apply the statutory tests in each case. Case remitted to the same Employment Tribunal to apply the correct statutory tests in the light of its findings of fact. HIS HONOUR JUDGE BIRTLES Introduction This is an appeal from the decision of an Employment Tribunal sitting in Newcastle Upon Tyne. The Chairman was Dr I J Watt and the members were Mrs S A Jackson and Mr J Murdie. The reserved judgment of the Tribunal was sent to the parties and entered in the Register on 12 April 2006.[2]The hearing lasted for 19 days of evidence and submissions spread over April, August and December 2005 and 4 days of deliberations in February 2006. The judgment of the Employment Tribunal runs to 84 pages.[3]Before us the Appellant has been represented by Mr Peter Oldham of Counsel and the Respondent by Mr Mohammed Hay of Counsel. We are grateful to both of them for their skeleton arguments and oral submissions.[4]The unanimous judgment of the Tribunal was:(1) that Mrs Scanlon was unfairly dismissed contrary to sections 94 and 98 of the Employment Rights Act 1996 ;(2) that she had been unlawfully dismissed for a reason relating to a protected disclosure contrary to section 103A of the Employment Rights Act 1996 ;(3) that she had been victimised in relation to a complaint raised by her in a letter dated 16 March contrary to section 4(1) of the Sex Discrimination Act 1995 by the taking of disciplinary action against her ending with her dismissal;(4) that the Polkey/O'Donaghue submission that the Claimant would have been dismissed in any event was not established;(5) that she was assessed as having contributed 20% to her unfair dismissal.(6) Directions were given for a remedies hearing and a case management discussion as to that remedies hearing. The Employment Tribunal Judgment (1): the material facts[5]These are set out in paragraph 3.1-3.177 (pages 3-60 of the judgment). For reasons which will become apparent we will refer to the relevant facts later in this judgment. The Employment Tribunal Judgment (2): the law[6]The Employment Tribunal set out the law in paragraphs 6-31 of its Judgment (pages 61-68). Again, we will refer to this where necessary later in our judgment. The Employment Tribunal Judgment (3): conclusions[7]The Employment Tribunal reached its conclusions in paragraphs 32-73 of its Judgment (pages 70-84). Again, we will refer to those conclusions where necessary later in this judgment. Notice of Appeal[8]The Notice of Appeal appears at EAT bundle pages 85-91. Part was struck out by an order of the EAT on 12 October 2006 and it is therefore not necessary to refer to those parts.[9]Following the hearing of the appeal on 27 February 2007 we reserved judgment. Subsequently two judgments were handed down which appeared to us to be relevant and so we sent copies of them to Counsel and requested their written submissions on those judgments before giving judgment ourselves. The first of those judgments was Dr R Kuzel v Roche Products Ltd (UKEAT/0516/06). This was a judgment handed down by HHJ Peter Clark on 2 March 2007. The second was Babula v Waltham Forest College [2007] EWCA Civ 174 . This was a judgment of the Court of Appeal on appeal from the Employment Appeal Tribunal. As a result of the decision of Babula v Waltham Forest College , supra, the Appellant abandoned one of its grounds of appeal, namely that the Employment Tribunal was in error when it found that Mrs Scanlon had made a protected disclosure. This left unaffected the other ground of appeal against that finding (causation) and neither decision affected the appeal against the finding of discrimination by way of victimisation under the Sex Discrimination Act 1975 .[10]We now turn to the extant grounds of appeal which have been usefully condensed by Mr Peter Oldham in his skeleton argument. The grounds can now be summarised as follows:
" Protected Disclosure The Employment Tribunal applied the wrong causation test Sex Discrimination Act, Victimisation The Employment Tribunal applied the wrong causation test"
The Employment Tribunal's Key Findings of Fact[11]The key findings of fact were: (1) Para 3.10: Mrs. Scanlon's statement of particulars of terms and conditions of employment made:
"a reference to equal opportunities policies. The incorporation of such policies within the contractual terms is not qualified. Accordingly, these policies were intended to be part of the contract between the … Council and its employees and, that [sic] the council considered itself contractually bound to follow its disciplinary, grievance and equal opportunity policies in relation to its employees in general and the claimant in particular." (2) Para 3.35: Mrs. Scanlon wrote a letter to Mr. Richardson on 16 th March 2003 stating:- "
As the Council's Equality Officer I wish to make a formal complaint regarding the fundamental breach of the Council's equality in employment policy by yourself … Your actions have driven a coach and horses through the Council's equality in employment policy which you wrote … because of your actions a number of officers ... may feel that they have been discriminated against on the grounds of race, gender or disability." She wrote this letter because she was concerned about the appointment of Ms. Kavanagh to a post without adherence to what she regarded as appropriate recruitment procedures: para 3.31. (3) Para 3.102: Mr. Richardson began a disciplinary investigation against Mrs. Scanlon on 12 th June 2003. A letter of 19 th September 2003 set out the disciplinary charges: para 3.129. The disciplinary hearing took place on 22 nd and 23 rd July 2004: para 3.154. The person chairing the hearing was Mr. Moore. (4) Para 3.167: Mr. Moore took the decision to dismiss Mrs. Scanlon. She was not given a right of appeal: para 3.175. Ground (1): The Employment Tribunal applied the wrong causation test for protected disclosure[12]The Employment Tribunal set out the law on this issue in paragraphs 27-28 of its judgment where it said this:
"27 The next issue which arises in whistle blowing cases is the matter of causation. Is there a direct line of causation between the dismissal under section 103A of the ERA or to section 47B detriment. Thus, it has to be shown that the action taken by the employer is by reason of the employee having made a protected disclosure. It is therefore for the employee to prove the causal nexus between the fact of making a protected disclosure and the dismissal or detriment. In Aspinall v MSI Meck Forge Ltd Employment Appeal Tribunal 891/01, the Employment Appeal Tribunal applied the decision of the House of Lords in Chief Constable of West Yorkshire Police v Khan [2001] ICR 1965. In Aspinall the Employment Appeal Tribunal concluded that for detriment to be established under section 47B, on the ground that the worker had made a protected disclosure, the protective disclosure had to be causative in the sense of being the real reason, the core reason, the causa causans, the motive for the treatment complained of. It may, therefore, be as in some discrimination cases that there is a dearth of direct evidence as to the employer's motives. Accordingly, the Tribunal may have to draw inferences as to the real reason for the employer's action on the basis of its findings of fact following the principles of King v Great Britain China Centre [1992] ICR 516 . 28 In relation to Section 103A of the ERA the burden of proof is to be distinguished from a Section 47B detriment. In general terms the position under Section 103A is the same as applies to other automatically unfair reasons for dismissal. Technically the burden is on the employer to show the reason for dismissal and then it is for the employee to show that the real reason for dismissal was an automatically unfair reason. Accordingly the employee has the evidential burden to show the facts which are capable of establishing an automatically unfair reason for the dismissal. Once that has been satisfied the burden reverts to the employer who must prove on the balance of probabilities which of the competing reasons was the principal reason for dismissal - Maund -v- Penwith District Council [1984] ICR 143CA."
[13]Paragraph 28 must now be read as subject to the judgment of HHJ Peter Clark in Dr R Kuzel v Roche Products Ltd (2 March 2007 UKEAT/0516/06) and in particular to paragraph 47 where Judge Peter Clark said this:- "47. Reverting to the Maund test applicable to s103A dismissals, we would formulate the approach to be applied on a finding made by the Tribunal in this case as follows:(1) Has the Claimant shown that there is a real issue as to whether the reason put forward by the Respondent, some other substantial reason was not the true reason? Has she raised some doubt as to that reason by advancing the s103A reason?(2) If so, has the employer proved his reason for dismissal?(3) If not, has the employer disproved the s103A reason advanced by the Claimant?(4) If not, dismissal is for the s103 reason. In answering those questions it follows: (a) that failure by the Respondent to prove the potentially fair reason relied on does not automatically result in the finding of unfair dismissal under s103A: (b) however, rejection of the employer's reason coupled with the Claimant having raised a prima facie case that the reason is a s103A reason entitles the Tribunal to infer that the s103A reason is the true reason for dismissal, but (c) it remains open to the Respondent to satisfy the Tribunal that the making of the protected disclosures was not the reason or principal reason for dismissal, even if the real reason is found by the Tribunal is not that advanced by the Respondent: (d) it is not at any stage for the employee (with qualifying service) to prove the s103A reason." Ground 2: causation under the Sex Discrimination Act 1975[14]The Employment Tribunal set out the law relating to victimisation at paragraphs 29-31 of its judgment where it says this:
"29. Section 4 of the Sex Discrimination Act 1975 provides that the discriminator discriminates against another person, the person victimised, in any circumstances relevant for the purposes of the Act if 'he treats the person victimised less favourably in those circumstances than he treats or would treat other persons and does so by reason that the person victimised has done anything under or by reference to the Act in relation to the discriminator or any other person, or that they have 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 the Act or by reason that the discriminator knows that the person victimised intends to do any of these things or suspects the person victimised has done or intends to do any of them'. A specific defence is afforded by Section 4(2) which provides if the allegation made by the alleged victim is false and not made in good faith then in those circumstances the alleged victim cannot pursue a complaint under Section 4(1). Where discrimination by victimisation is the issue the proper comparison to make is between the treatment which was afforded to the complainant who has done a protected act and the treatment which would have been afforded to others who have not done such an act. 30. A complaint must be capable of being recognised as one made by reference to the SDA 1975. Accordingly, a claimant failed in her complaint of victimisation because it was said she did not allege that either the employer or the trade union were acting in breach of the SDA 1975- British Airways Engine Overhaul Limited -v- Francis [1981] IRLR 9. Then it must be shown that the less favourable treatment of the person victimised was by reason of him or her having done a protected act. However, in that regard there is no need to prove that the alleged discriminator was consciously motivated by a wish to treat the claimant badly because of the protected act. In consequence a respondent is not able to escape liability by showing an absence of intention to discriminate if the necessary link between the protected act and the less favourable treatment can be shown to exist. Nagarajan -v- London Regional Transport [1999] IRLR 572 HL. 31. In Igen Ltd v Wong [20051 IRLR 269 CA the following guidance on the burden of proof in discrimination was given: "(1) Pursuant to s.63A of the SDA it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the tribunal could conclude in the absence of an adequate explanation that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part Il or which by virtue of s.41 or s.42 is to be treated as having been committed against the claimant."
These are referred to below as 'such facts'. (2) If the claimant does not prove such facts he or she will fail (3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that 'he or she would not have fitted in'. (4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal (5) It is important to note the word 'could' in s.63A(2). At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it sees what inferences of secondary fact could be drawn from them. (6) In considering what inferences or conclusions can be drawn from the primary facts the tribunal must assume that there is no adequate explanation for those facts (7) These inferences can include in appropriate cases any inferences that it is just and equitable to draw in accordance with s.74(2)(b) of the SDA from an evasive or equivocal reply to a questionnaire or any other questions that fall within s.74(2) of the SDA (8.) Likewise the tribunal must decide whether any provision of any relevant code of practice is relevant and if so take it into account in determining such facts pursuant to s.56A(10) of the SDA. This means that inferences may also be drawn from any failure to comply with any relevant code of practice. (9) Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex then the burden of proof moves to the respondent. (10) It is then for the respondent to prove that he did not commit or as the case may be is not to be treated as having committed that act. (11) To discharge that burden it is necessary for the respondent to prove on the balance of probabilities that the treatment was in no sense whatsoever on the grounds of sex since 'no discrimination whatsoever' is compatible with the Burden of Proof Directive (12) That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question. (13) Since the facts necessary to prove an explanation would normally be in the possession of the respondent a tribunal would normally expect cogent evidence to discharge the burden of proof. In particular the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice" The Employment Tribunal's conclusions on causation[15]The Employment Tribunal runs its conclusions on the causation together. The relevant paragraphs are as follows:
"33. The Tribunal has concluded that the key event in this story is the claimant's letter of 16 March 2003 in which she complained about the conduct of Mr Richardson. This topic is considered more fully below in the whistle blowing/victimisation section. Further, we have concluded that there was a direct connection between the complaint, the events of 12 June 2003 and the subsequent disciplinary action. In relation to the four disciplinary charges we have concluded that the decision to dismiss was unreasonable and unfair for the purposes of section 98(4) of the ERA 1996. 58 The claimant's letter of 16 March 2003 sets out a series of complaints regarding the appointment of Ms Kavanagh. The respondent accepted that this appointment was in breach of the Council's policies and procedures but that the breach was justified by exceptional circumstances. It was disputed that these policies and procedures constituted a legal obligation. The Tribunal is satisfied that it was such an obligation for these reasons: first of all the statement of particulars of the contract of employment incorporated various policies and provisions including, inter alia, disciplinary and grievance procedures, bullying and harassment and equal opportunities policies. By incorporating these policies and procedures as part of the overall contract of employment then it must follow that the respondent intended to be bound by them in relation to the claimant and her fellow employees. That is a contract between the respondent and its employees and therefore constitutes a legal obligation.. Section 43B of the ERA is therefore satisfied. Section 43C of the ERA is satisfied by the fact that the claimant made these disclosures first to a Chief Officer, Mr Richardson, and then to the Chief Executive of the local authority, her employer. 59 The claimant's letter of 16 March also alleges a potential breach of discrimination legislation. Although the claimant does not specify a breach of the SDA 1975 the words that she uses and the facts on which she relies constitute a sufficient complaint of a breach of that Act. The claimant specifically suggested that some employees, who had been denied the opportunity to apply for the vacancy, could have potential claims of discrimination by reason of their gender. As the respondent was aware a woman had been appointed and a number of men had been potentially excluded from the opportunity to apply. Thus, section 4 of the SDA was satisfied. 60 However, there is a requirement of good faith both under Part IVA of the E and under the SDA. It was alleged that the claimant was motivated by personal antagonism• towards Ms Kavanagh. Prior to 16 March 2003 there was only limited contact between the claimant and Ms Kavanagh. In Ms Kavanagh's statements to Ms Hall and Mr Harbour she makes no allegations of any personal animosity shown towards her by the claimant. There is evidence in the correspondence of the claimant's irritation with Ms Kavanagh at one point pre March 16 but as other correspondence shows that attitude was by no means exclusive to Ms Kavanagh. The claimant denied the allegation in evidence to the Tribunal. The factors that really influenced the Tribunal on this issue were the various allegations made against the claimant regarding the zealousness with which she pursued equal opportunities issues and on occasions in so doing that she could be quite insensitive to the possible feelings of others. In this instance the claimant had identified a genuine issue and one that went to the heart of what she was doing. If policies designed to ensure equality are be set aside on the basis of managerial expediency then what was the purpose of her job? The Tribunal has no doubt that the claimant saw this as an overriding matter of principle and some of the intemperate language used in the letter to Mr Richardson indicates both the strength of her feelings in this regard as well as her zealotry. We conclude that despite her lack of tact and diplomacy the claimant nevertheless acted in good faith. 61 Mr Moore said there was no whistle to blow and that furthermore the claimant did not use the whistle blowing procedures. Part IVA is intended to afford protection to employees who raise important issues of principle with their employers. The claimant quite properly had identified potential breathes of legal obligations in circumstances where the respondent had given every appearance of trying to cover its tracks after the event The claimant having gained knowledge of this raised these matters at a very senior level and challenged both Mr Richardson and Mr Moore. Mr Moore's evidence about what had taken place was unconvincing and inconsistent. The offer and acceptance to Ms Kavanagh was completed before the Mapping the Market Committee meeting, the minutes of that meeting are Delphic in their construction and do not appear to confirm Mr Moore's claim of approval. Indeed the subsequent objections from Mr McCormack are wholly inconsistent with the contention of trade union approval at that meeting. The meeting clearly did approve the descoping proposal but as the McCormack objection to the departure from process demonstrates the Committee were evidently told less than the whole truth. 62 The other candidates were spoken to and advised of the vacancy but after the event. Although it was said these employees were not interested in the position some of them at least were sufficiently concerned to talk to the claimant about the matter. It appears that there had been some internal advice given about the procedures adopted and perhaps that is what occasioned these approaches to potential candidates. The arguments for urgent action to appoint appeared to be very weak. The Tribunal accepts that the Liberata contract was a priority, that the position needed to be filled quickly and that because of the circumstances the vacancy should have been restricted to internal candidates with the necessary qualifications. However given all that, as the claimant and her trade union contended, there was no reason why procedures could not otherwise be observed and a relatively quick appointment be made. 63 We were not informed of any dire urgency with Liberata negotiations that could not have waited a week or so. As for the management of other matters it can be seen how little involvement Ms Kavanagh had with the claimant so there was certainly no urgency on that front indeed, Ms Kavanagh did not take up her duties until 8 May 2003. It seems to us more than likely that the senior management had formed the view that Ms Kavanagh was the only suitable candidate and they wanted to get on with the appointment. Mapping the Market gave the opportunity to get clearance for this albeit in a less than a fully transparent manner. It may well be that Ms Kavanagh was the best candidate and her appointment was a good one. However, that was not the issue because as the claimant had properly flagged up there was an important point of principle involved. 64 With both of these complaints the Tribunal, has to find a causative link between the acts of disclosure and the subsequent detriments alleged and ultimately the dismissal. These questions essentially turn on the events of 12 June 2003. Mr Richardson at that meeting raised a series of issues concerning the claimant's work. If there was an underlying issue of capability then no warnings had been given to her previously. In fact so far as the claimant was concerned her line manager Mr Watts seems to have given support and approval throughout. Until March 2003 Mr Richardson does not seem to have raised any issues about the claimant's performance or conduct with her or, so far as we know, with Mr Watts. Accordingly, the claimant's evidence that Mr Richardson's attitude towards her changed after she submitted her complaint on 17 March is highly significant. There was of course no direct challenge to this evidence. 65 On 12 June Mr Richardson challenged the claimant about the way she had been performing her duties but Mr Richardson seems not to have checked his facts and tracked back through the instructions [or rather the lack of instructions] but instead he chose to set a course of confrontation. The evidence of Ms Wilson is that immediately before the meeting she had told Mr Richardson and Ms Kavanagh about the stressed condition and irrational behaviour of the claimant the day before. Presumably he knew also from Ms Wilson that the claimant was concerned that if Mr Richardson was contemplating raising conduct issues the claimant required trade union representation. 66 Given those matters a series of questions arise: why did Mr Richardson embark on what was to all intents a disciplinary interview without warning the claimant or allowing her representation; why was he so confrontational when he had been warned by a senior colleague about the claimant's emotional state; why immediately following the end of the meeting did he escalate the situation to a formal investigation, suspension and charges of gross misconduct? Given that we pose those questions in the light of our findings that the charges of gross misconduct were not substantiated. In saying that we do not say that there were no areas for proper concern but our conclusion is that the action taken was a grossly disproportionate reaction. In addition, the three matters of concern all involved a substantial measure of management failure. This was something that Mr Richardson chose to ignore and by so doing further provoked the claimant. A reasonable manager acting reasonably would not have acted in that way. 67 The Anthea Henderson calendar incident is of some interest in throwing light on Mr Richardson's attitude to the claimant. Mr Harbour's interview with Ms Henderson shows that she did not wish to make a formal complaint about the claimant. Indeed, she was making no complaint at all she was merely seeking clarification of the Council's policy on displaying materials. Mr Richardson on the other hand seems to have been intent on making an issue out of the matter. It is said that his actions were of a defensive nature but if so it portrays a very unhealthy relationship with the claimant and one that he ought to have addressed in a constructive manner. Rather than that it looks as though Mr Richardson instead sought further confrontation. 68 At this point the claimant had proved sufficient facts from which an inference could be drawn that Mr Richardson's conduct was causally connected to the claimant's complaint of 16 March 2003 [a protected act] and that it could amount to victimisation pursuant to section 4 of the SDA in that a person who had not done the protected act would not have been so treated. Accordingly the burden of proof moved under section 63A of the SDA to the respondent to prove that it did not commit or is not to be treated as having committed the act of victimisation. Mr Richardson did not give evidence to the Tribunal and the issue was not put to him in these terms in the disciplinary proceedings. We had the evidence of Mr Moore but he of course was not present on 12 June nor did he take any of the decisions immediately following that meeting. Mr Moore's defence of Mr Richardson was four fold. First of all he Mr Moore had found against the claimant on all four charges of misconduct and thereby considered that Mr Richardson had acted properly throughout. Secondly, that he knew Mr Richardson well and had no knowledge of any matter that would suggest any improper motives on the part of Mr Richardson. Thirdly, Mr Moore did not believe that the letter of 16 March was a protected act. Fourthly, he Mr Moore had conducted the disciplinary proceedings fairly and without any consideration at all of the complaints made by the claimant in March and April 2003. 69 The claimant having shown a set of facts it is for the respondent to provide an explanation on the balance of probabilities that the respondent1s treatment of the claimant was not attributable to the protected act. The Tribunal has concluded that the respondent has failed to discharge the burden on it and in consequence we find that the claimant was victimised contrary to section 4 of the SDA. For the reasons fully set above the Tribunal has concluded that the four disciplinary charges were not well founded. Thus, the primary reason the respondent used to justify its actions is thereby nullified. Secondly it is not a necessary requirement to establish an improper motive. However there was evidence to suggest that Mr Richardson's attitude to the claimant had changed and his conduct prior to, during and following the meeting of 12 June 2003 was indicative of a disproportionate reaction for which the only rational explanation before us was the claimant's complaint of 16 March 2003]. Thirdly, for the reasons fully set out above the Tribunal concluded that the latter complaint and the subsequent discussion with Mr Moore were protected acts. Fourthly, the conduct of certain aspects of the disciplinary process in particular the investigation, the circumstances of the fifth charge, the comparative unequal treatment of the claimant and the denial of the appeal taken together with all the other matters leads to a conclusion that the claimant was being treated less favourably. Looking at all these matters in the round the Tribunal did not consider that it had received from the respondent a convincing explanation of its conduct and therefore the claimant's complaint must succeed. 70 The public interest disclosure complaint has some close similarities to the section 4 SDA complaint in that there is a requirement for good faith and there is a need to show a causal connection between the protected acts and the matters complained of and in this regard the Tribunal would rely on the reasoning given above in relation to victimisation. The burden was on the employer to show the reason for dismissal. The terms of this judgment in relation to unfair dismissal is to find that the reason of conduct was not made out and therefore the dismissal was automatically unfair. On the facts we judge on the balance of probabilities that the protected acts were casually connected to the dismissal through the chain of events described in this judgement. The claimant's open challenge to management provides the only credible explanation for the disproportionate action taken against her following the June 12 meeting and the consistent failure on the part of the respondent to have regard to matters substantially in the claimant's favour and treating her unfairly during the disciplinary process. Accordingly we are satisfied that the claimant complaints pursuant to Part IVA of the ERA 1996 have been made out."
Submissions[16]Mr Oldham submitted that for the claim under s103A of the 1996 Act to succeed the Employment Tribunal would have had to find that the reason or principal reason for Mr Moore's decision to dismiss was that Mrs Scanlon had made a protected disclosure. He referred us to the well known case of Abernethy v Mott, Hay and Anderson [1974] IRLR 213 at paragraph 13 where Cairns LJ said this:
"A reason for the dismissal of an employee is a set of facts known to the employer, or it may be of beliefs held by him which cause him to dismiss the employee. If at the time of his dismissal the employer gives a reason for it, that is no doubt evidence, that any rate is against him, as to the real reason, but it does not necessarily constitute the real reason. He may knowingly give a reason different from the real reason out of kindness because he might have difficulty in proving the facts that actually led him to dismiss: or he may described his reasons wrongly through some mistake of language or of law."
[17]Mr Oldham then referred us to Trustees of Mama East African Women's Group v Dobson (UKEAT/0219/05) a decision of HHJ McMullen QC. In our judgment that decision has been overtaken by the decision of a separate Tribunal presided over by HHJ Peter Clark in the case of Dr R Kuzel v Roche Products Ltd (UKEAT/0516/06; 2 March 2007). In subsequent written submissions Mr Oldham submits that as

Judge Peter Clark said at paragraph 47 of Kuzel :

"(c) It remains open to the Respondent to satisfy the Tribunal that the making of the protected disclosures was not the reason or principal reason for dismissal, even if the real reason is found by the Tribunal is not that advanced by the Respondent;"
[18]Mr Oldham submits that, following Kuzel , it would have to be shown by the Appellant at step (c) was that: "The making of the protected disclosure was not the reason or principal reason for dismissal." which is a different way of putting s103A of the 1996 Act. Mr Oldham submits that "reason" is an enquiry into what (following Abernethy ) motivates a person. So the Appellant had to show that Mr Moore (the dismissing officer) was not motivated by the alleged protected disclosure in his decision to dismiss Mrs Scanlon. By contrast the Employment Tribunal in this case asked itself the wrong test or indeed no test at all: see paragraphs 27, 64, 29-70.[19]By contrast Mr Hay submits that this was an impeccably reasoned judgment where the Employment Tribunal took great trouble and time in fully setting out the factual picture and correctly applying the law as it then stood. It made many criticisms of Mr Moore and there was a factual train of causation between(a) the complaint of 17 March 2003 by the Respondent,(b) the disciplinary proceedings against the Respondent, and(c) the Respondent's dismissal by the Appellant. In the case of (b) and (c) the decisions were those of Mr Moore, the chief executive. Mr Hay submitted that paragraph 70 of the judgment which we have set out above is impeccably reasoned and a judgment based upon the facts. Ground 2: causation under section 4 of the Sex Discrimination Act 1975[20]Mr Oldham submitted that for the claim to succeed the Employment Tribunal would have had to find that the decision to dismiss taken by Mr Moore (Judgment paragraph 3.160) was taken by reason that Mrs Scanlon had done a protected act. However, he submitted that the only relevant conclusions reached by the Employment Tribunal were those stated at paragraph 68 of its judgment that:
"At this point the Claimant had proved sufficient facts from which an inference could be drawn that Mr Richardson's conduct was causally connected the Claimant's complaint of 16 March 2003 (a protected act) and that it could amount to victimisation pursuant to section 4 of the SDA in that a person who had not done the protected act would not have been so treated. Accordingly the burden of proof moved under section 63A of the SDA to the respondent to prove that it did not commit or is not to be treated as having committed the act of victimisation."
[21]Mr Oldham then referred to the fact that in paragraph 69 the Employment Tribunal said this:
"The claimant having shown a set of facts it is for the respondent to provide an explanation on the balance of probabilities that the respondent's treatment of the claimant was not attributable to the protected act."
[22]Basing himself on these passages Mr Oldham made two submissions. First, the Employment Tribunal was in error in that it did not find that the act of Mr Moore dismissing Mrs Scanlon was caused in anyway by the protected act. Second, to the extent, contrary to the first submission, that the Employment Tribunal found such a causative link it applied the wrong test of causation. A finding of a "causal connection" was not sufficient. The claim could only succeed if the dismissal was "by reason that" Mrs Scanlon had done the protected act.[23]By contrast Mr Hay submitted that the reasoning in paragraphs 58-69 was full and based upon substantial fact finding. Mr Hay's written submissions were lengthy and we hope we will be forgiven by not attempting to summarise them in detail. Employment Appeal Tribunal decision[24]It seems to us sensible to deal with the two grounds of appeal together because that is the way the Employment Tribunal approach them in paragraphs 58-70 of its Judgment. We begin with the law. The relevant part of section 4(1) of the Sex Discrimination Act 1975 says this:
"4. Discrimination by way of victimisation (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 then in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has (a)-(d)(not cited) or by reason that the discriminator knows the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do so, any of them."
We emphasis the critical phrase for causation which is "and does so by reason that the person victimised has…or by reason that the discriminator knows…".[25]In relation to dismissal for a protected disclosure s103A of the Employment Rights Act 1996 provides:
"103A Protected disclosure An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure."
We emphasise the critical words for causation here are "if the reason (or, if more than one, the principal reason) for the dismissal".[26]In each case it is important to distinguish between the issue of causation and the issue of the burden and standard of proof. This appeal is concerned only with causation.[27]With that in mind and also bearing in mind what the Employment Tribunal said as to causation in paragraphs 27-28 (s103A dismissals) and paragraph 29 (section 4 victimisation) as well as paragraph 33. We turn to the core of the Employment Tribunal's conclusions on these two issues in paragraphs 69-70 of its Judgment.[28]We now turn to analyse those two paragraphs. Paragraph 69 deals with the complaint of victimisation under section 4 of the Sex Discrimination Act 1975 . It follows paragraphs 58-60 which deal largely with the meeting of 12 June with Mr Richardson. In paragraph 69 the Employment Tribunal give four reasons why the Respondent has failed to prove that his treatment of the Claimant was not attributable to the Claimant's complaint of 16 March 2003 (a protected act). In turn those reasons are as follows:(1) The four disciplinary charges were not well founded. Thus, the primary reason the Appellant used to justify its actions was thereby nullified;(2) It is not a necessary requirement to establish an improper motive. However there was evidence to suggest that Mr Richardson's attitude to the Claimant had changed and his conduct prior to, during and following the meeting of 12 June 2003 was indicative of a disproportionate reaction for which the only rational explanation before us was the Claimant's complaint of 16 March 2003;(3) Third, for the reasons fully set out above the Tribunal concluded that the latter complaint of the subsequent discussion with Mr Moore were protected acts;(4) The conduct of certain aspects of the disciplinary process in particular the investigation, the circumstances of the fifth charge, the comparative unequal treatment of the Claimant and the denial of the appeal taken together with all the other matters least of the conclusion that the Claimant was being treated less favourably. The Employment Tribunal concluded that:
"Looking at all these matters in the round the Tribunal did not consider that it had received from the Respondent a convincing explanation of its conduct and therefore the Claimant's complaint must succeed."
[29]A similar analysis of paragraph 70 (dismissal for protected disclosure under section 103A of the Employment Rights Act 1996 ) shows the following reasons found by the Tribunal:(1) In this regard the Tribunal would rely on the reason given above in relation to victimisation;(2) The burden was on the employer to show the reason for dismissal. The terms of the judgment in relation to unfair dismissal is to find that the reason of conduct was not made out and therefore the dismissal was automatically unfair;(3) On the facts we judge on the balance of probabilities that the protected acts were causally connected to the dismissal through the chain of events described in this judgment;(4) The Claimant's open challenge to management provides the only credible explanation for the disproportionate action taken against her following the June 12 meeting and the consistent failure on the part of the Respondent to have regards and matters substantially in the Claimant's favour and treating her unfairly during the disciplinary process. The Employment Tribunal's conclusion was:
"Accordingly we are satisfied that the Claimant's complaints pursuant to part 1VA of the ERA 1996 have been made out."
[30]It seems to us when one looks at this analysis of paragraph 69-70 of the judgment there has been a failure to apply the statutory language. Turning first to the victimisation claim we accept Mr Oldham's submission that the only references to the statutory causation test in the Employment Tribunal's conclusions is in paragraph 68 which we have already cited and which simply refers to whether or not Mr Richardson's conduct "was causally connected to the Claimant's complaint of 16 March 2003 (a protected act)…" and in paragraph 69 of its judgment where the Tribunal found that the Appellant had not rebutted the inference that is not shown that its treatment of the Respondent "was not attributable to the protected act". Neither of those are an accurate statement of the causation test in section 4(1) of the Sex Discrimination Act 1975 . It seems to us that what the Tribunal has done is to elide the issue of causation with the issue of the shifting balance of proof and not separated the questions and adjust its mind to each in turn. The analysis of the Employment Tribunal in paragraph 69 bears that out.[31]The same result appears from the conclusions in respect of the dismissal for making a protected disclosure. References are again to a causal connection between the protected acts and the dismissal: Judgment paragraph 70; and the conduct of Mr Richardson who had decided to investigate disciplinary proceedings but was not the dismissing person, "was causally connected" to the protected act: Judgment paragraph 68.[32]The Tribunal decided that the dismissal was unfair pursuant to section 103A and therefore made two errors of law. First, it did not find that the act of Mr Moore in dismissing Mrs Scanlon was caused in any way by the protected disclosure. Second, even if it did find a causative link it applied the wrong test of causation. The finding of a "causal connection" was not sufficient. The statutory test means that the claim could only succeed if the reason or principal reason for Mr Moore's decision to dismiss Mrs Scanlon was that she had made a protected disclosure. Conclusion[33]For these reasons we conclude that the decision of the Employment Tribunal in respect of these two matters cannot stand and we allow the appeal in respect of them.[34]We turn to the question of disposal. We heard submissions from both counsel on this. Mr Oldham referred us to the decision of Burton J in Sinclair Roche & Temperley v Heard [2004] IRLR 763 at paragraph 46. Mr Oldham submitted that we should remit the case to a fresh Tribunal and Mr Hay submitted that we should remit the case back to the same Tribunal.[35]We have carefully considered each of the matters itemised by Burton J in paragraph 47 of the Sinclair case. In particular we bear in mind the issues of proportionality and cost. We have already indicated the considerable length of time which this original hearing took before the Employment Tribunal with the consequential costs on both sides. In particular we pay tribute to the careful fact finding by the Employment Tribunal which has not been subject of criticism by the Appellant save that Mr Oldham suggested it was overly critical of Mr Moore, the Appellant's Chief Executive. Leaving aside those matters we bear in mind that there was an appeal against the unfair dismissal claim. This was dismissed on the papers under rule 3 (i.e. prior the preliminary hearing in October 2006). There are therefore only two discrete issues to remit to the Employment Tribunal and in all the circumstances we have no doubt whatsoever that this Employment Tribunal will apply its mind carefully to those two issues on the basis of the facts as found by it. We therefore remit this case to the same Employment Tribunal to consider the two issues in the light of this judgment.