MILTON KEYNES COUNCIL v MR T ORR [2007] UKEAT 0418_07_2709

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2007] UKEAT 0418_07_2709Case No Appeal No. UKEAT/0418/07/DA UKEAT/0419/07/DA UKEAT/0460/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MILTON KEYNES COUNCILAPPELLANTMR T ORRRESPONDENT
Before
His Honour Judge Pugsley Mr D G Smith Mr D WelchDate 27 September 2007
[1]APPEARANCES For the Appellant MR SIMON CHEETHAM (of Counsel) Instructed by: Milton Keynes Council PO Box 111 Civic Offices 1 Saon Gate East Central Milton Keynes MK9 3HG For the Respondent MR DANIEL LEADER (of Counsel) Instructed by: Messrs Fisher Meredith Solicitors Blue Sky House 405 Kennington Road London SE11 4PT SUMMARY Race Discrimination Unfair Dismissal Tribunal found dismissal fair but also the dismissal was due to race discrimination, albeit in the remedy hearing it found the Claimant's conduct the effective and dominant cause of his dismissal EAT considered findings contradicting and so allowed appeal sent back to a different Tribunal. HIS HONOUR JUDGE PUGSLEY Employment Tribunals have a difficult and demanding job and even in those cases where this Tribunal finds it necessary to reverse their decision that course is taken with considerable respect and sympathy for the complexity of the issues that Tribunals have to deal with. Sadly this is a very rare case where we are bound to say that we are concerned about the terms of this decision.[2]We do not think these judgments on either matter have done justice to the case for either Mr Orr or Milton Keynes Council. That is not a judgment that one reaches easily. As we have indicated it is rare that this Tribunal is in this position, but we come to the view, which is not really any more than to take the consensus view from both grounds for appeal, this decision simply cannot stand.[3]This case occupied no less than five hearing days where both parties were represented by Counsel and a further day in Chambers. The decision sets out various background matters. It then defines the issues. It then states the law, and it then comes at paragraph 21 to what it says are the findings of fact. We have to say that they are in all our view manifestly unsatisfactory. They do not set out with sufficient particularity why the parties won or lost.[4]At paragraph 22 the Tribunal says this:
"In respect to the claims of unfair dismissal, direct race discrimination, we make the following findings: 22.1. The Respondent has satisfied the Tribunal that in relation to the incident on 17 October 2005 and 20 October 2005 which led to the Claimant's dismissal the Respondent had a genuine belief that the Claimant had acted unprofessionally on both occasions. The belief was genuinely held and was formed on the meeting of grounds after the Respondent had carried out a proper investigation. 22.2. With regard to that investigation the Respondent interviewed Louisa Bell, the team leader of the Claimant; Alison Luxor, a youth worker; Don Graham, an HR Advisor; Peter Maddern and Lena Barnes, and reported on 2 December 2005. The investigation, although not perfect, was such that a reasonable employer would carry out and led to the disciplinary hearing on 19 May 2006 which the Claimant failed to attend. We find the Respondent's procedures were fair and were applied as fair. As we've said the Claimant failed to attend the disciplinary hearing and therefore offered no explanation for his actions and did not make Mr Cove aware of any mitigating circumstances. 22.4. We find the appeal process was fair. 22.5. We find that dismissal was a reasonable response to the circumstances and the dismissal was not unfair. 22.6. We are satisfied the Claimant had not been the subject of a vendetta and that the Respondent's decision to institute disciplinary action in relation to the incidents on 17 and 20 October was reasonable. 23.1. The Claimant has argued he has been treated less favourably than two white employees, Maggie Ram and Maxine Russell. Insofar as Maggie Ram is concerned the circumstances in her case are materially different than those involving the Claimant. In responding to the Claimant's grievance about Ms Ram seriously investigating the matter under the grievance procedure, and Ms Ram apologised and volunteered for racial awareness training. The Claimant was kept fully informed and he did not pursue this grievance further. 23.2. Maxine Russell's situation is different. Her conduct was very similar to that of the Claimant for which he was disciplined and dismissed. No action was taken against Maxine Russell. Some enquiries were made by the Respondents to what had occurred and these revealed a situation very similar to the incident in which the Claimant was involved on 20 October 2005 but no further action was taken. 23.4. Given this finding the burden of proof is on the Respondents to show their action was in no way discriminatory and the Respondents have failed to discharge that fairly. 23.5. We therefore find the Claimant's dismissal amounted to less than favourable treatment on the grounds for the Claimant's race."
[5]Put bluntly we cannot understand that decision. To find that the dismissal was fair and then go on to find that the dismissal amounted to less than favourable treatment on the grounds of the Claimant's race shows a subtlety and sophistication of reasoning that no one in this Tribunal can follow.[6]In a subsequent Tribunal hearing as to quantum the Tribunal made this finding at paragraph 6.3:
"In these circumstances and adopting the language of Hooper LJ in Ronald Misk-Carew v Birmingham City Council and Dr Sonia Sharp (2004) EWCA Civ 565 , the Claimant's conduct on the 17 October 2006 was the effective and dominant cause of his dismissal. 6.4. In consequence of this finding the Tribunal accepts Mr Cheetham's argument that the Claimant's conduct on 17 October, which was not the act of discrimination, resulted in his dismissal and we have already found that the dismissal is not fair."
[7]Mr Leader has argued that we should seek to sever the finding of race discrimination on which he says one can spell out the proper application of the role of inference and the shifting of the burden of proof, and that we should make a finding of unfair dismissal. We do not think that that course is open to us. We do not want to prejudice the decision of any Tribunal that has to determine that issue. We are bound to say there are powerful primary facts for evidence set out under race discrimination as to how the Claimant's position and Maxine Russell's position were dealt with, and it may well be that those findings of fact are ones that any Tribunal would make but we must not speculate as to that, or if they did, that they would reach a similar conclusion.[8]However we cannot see that it is fair to the Claimant, Mr Orr, that a Tribunal that found that his dismissal was due to grounds of race should be held to be fairly dismissed. Equally we cannot see how it is that the Respondents should be found to be guilty of race discrimination without any reference being made in that finding on race discrimination that the Claimant's conduct was the effective dominant cause of his dismissal. There needs to be a balancing act which simply has not taken place.[9]We are going to allow these appeals and send the case back to a new Tribunal, freshly constituted to deal with the matter afresh. This new Tribunal will have to consider whether there was race discrimination, and unfair dismissal and if so what is the basis of compensation?[10]We are well aware that the Claimant has paid to fund his case and the rehearing of this case will be expensive. We cannot see how it can be fair to him that a Tribunal does not have the opportunity of considering the dismissal. It is not fair to the local authority that any question of contribution is not considered and that the finding of race discrimination could stand without there being some examination of what they meant by saying the dismissal was not unfair, and what they meant in their finding where they say that the Claimant's conduct was the effective and dominant cause of the dismissal.[11]We urge in view of the difficulties in the case that parties give it active consideration to see if there is a way of negotiating a resolution of this matter. We can see no way that this decision can be rescued.