UKEAT/0408/07/DA HM PRISON SERVICE & OTHERS v MR O IBIMIDUN [2008] UKEAT 0408_07_0204

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0408_07_0204Case No Appeal Nos. UKEAT/0408/07/DA UKEAT/0517/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
UKEAT/0408/07/DA HM PRISON SERVICE & OTHERSAPPELLANTMR O IBIMIDUNRESPONDENTUKEAT/0517/DA MR O IBIMIDUNAPPELLANTHM PRISON SERVICE & OTHERRESPONDENT
Before
His Honour Judge Peter Clark Mr J C Shrigley Ms B SwitzerDate 2 April 2008
[1]APPEARANCES UKEAT/0408/07/DA For the Appellant MR D BARR (of Counsel) Instructed by: The Treasury Solicitor (Employment Law Team) One Kemble Street London WC2B 4TS For the Respondent MR C PURNELL (of Counsel) Instructed by: Plumstead Community Law Centre 105 Plumstead High Street Plumstead London SE18 1SB UKEAT/0517/DA For the Appellant MR C PURNELL (of Counsel) Instructed by: Plumstead Community Law Centre 105 Plumstead High Street Plumstead London SE18 1SB For the Respondent MR D BARR (of Counsel) Instructed by: The Treasury Solicitor (Employment Law Team) One Kemble Street London WC2B 4TS SUMMARY VICTIMISATION DISCRIMINATION: Dismissal UNFAIR DISMISSAL: Reasonableness of dismissal Reason for dismissal for purposes of(a) s2 RRA victimisation claim and(b) unfair dismissal. Whether s2(2) RRA disqualified the Claimant from pursuing victimisation claim. Reasonableness under s98(4) dependant on (a) finding of victimisation being upheld (it was not) and (b) finding of failure to carry out reasonable investigation into a matter which did not form part of the reason for dismissal as found by ET. Appeal allowed. Consequent remedy appeal by Claimant (and cross-appeal by Respondent) dismissed. HIS HONOUR JUDGE PETER CLARK This is a long-running piece of litigation. The parties are Mr Ibimidun, Claimant, and HM Prison Service ("HMPS") and 5 individual managers employed by the Prison Service, Respondents. We have before us for full hearing the following appeals: (1) An appeal by HMPS, Peter Atherton and Geoffrey Hughes (the three Respondents) against parts of the Liability Judgment of a Tribunal sitting at London South chaired by Employment Judge MacInnes, ("the MacInnes Tribunal") promulgated with reasons running to 64 pages on 23 May 2007, following a 15 day hearing and six days of deliberation in private. By his answer the Claimant sought to cross-appeal against certain findings made in the Liability Judgment adverse to him. That cross-appeal was considered at the paper sift stage by HHJ McMullen QC who was of the opinion that the cross-appeal raised no point of law with a reasonable prospect of success. He applied Rule 3(7) of the EAT Rules, directing that no further action be taken on the cross-appeal. That direction has not been the subject of further challenge by way of a Rule 3(10) application or an Application for Permission to Appeal to the Court of Appeal. Consequently, on the issue of liability we are concerned only with the appeal by the three above-named Respondents. The MacInnes Tribunal dismissed all claims against the three remaining Respondents, John Leahy, Sarah Burnett and Dean Gardiner. (2) An appeal by the Claimant against the MacInnes Tribunal's Remedy Judgment promulgated with reasons on 3 September 2007 and a cross-appeal by the three Respondents with whom we are concerned against that part of the Remedy Judgment (paragraphs 16 – 18) in which the Tribunal considered, of its own motion, whether it should review that part of its Liability Judgment whereby it found that the three Respondents had victimised the Claimant contrary to s2 of the Race Relations Act 1976 (RRA), and decided that it would not do so, thus affirming that original finding of victimisation. History[2]The Claimant, a black man of Nigerian origin, commenced employment with HMPS as a prison officer on 29 March 1999. At all relevant times he worked at Belmarsh Prison. He was dismissed finally on 8 November 2005.[3]During his employment the Claimant brought the following claims against HMPS and others: 1101544/99. "The First claim"[4]By his claim form presented to the Ashford Tribunal he alleged that he had been urinated on in the showers and sexually assaulted by three white colleagues. The claim was settled by HMPS. The Claimant received a payment of £28,000 and a written apology from the then Director-General Martin Neary dated 20 September 2000. 1101070/01. "The Personal Hygiene claim "[5]This claim, together with five other claims which were dismissed, came on for hearing before an Employment Tribunal sitting at Ashford chaired by Mrs Valerie Cooney over seven days in July and August 2002.[6]One claim succeeded. It related to an incident on 27 November 2000 when the Claimant was called into the office of Prison Officer Gardiner. Senior Officer Smith was in attendance. Gardiner told the Claimant that some half a dozen complaints had been made by colleagues about his personal hygiene. The Cooney Tribunal held that this was an act of victimisation by Gardiner contrary to s2 RRA.[7]A review application by the Claimant was summarily refused by Mrs Cooney and on 15 January 2003 the Cooney Employment Tribunal awarded him compensation of £3,407 to include interest in respect of the act of victimisation upheld. 1101284/02. "The Carmichael claim[8]This claim was presented to the Ashford Tribunal on 29 June 2002. On 3 March 2003 Mrs Cooney ruled that only parts of the Carmichael claim could proceed to a hearing. The remainder was dismissed by her as seeking to relitigate aspects of the Personal Hygiene claim.[9]On 24 April 2003, the Claimant's application for a review of Mrs Cooney's decision was dismissed. I see from the MacInnes Tribunal's helpful chronology of the litigation that the Claimant brought a total of six appeals arising out of the Personal Hygiene and Carmichael claims before the EAT. On 8 October 2003 I dismissed those Appeals.[10]The remaining parts of the Carmichael claim were heard by a Tribunal at Ashford, again chaired by Mrs Cooney, in March 2004. By a reserved decision the claim was dismissed on its merits.[11]The relevant issue before the Cooney Tribunal in the Carmichael Claim is set out at paragraph 18 of the MacInnes Tribunal Liability Reasons (LR). The Claimant alleged that Governor Carmichael, in carrying out an investigation, did not deal with an allegation by an inmate named Checkley that the Claimant had given him a note asking him to make allegations of racial discrimination against other prison officers, particularly Prison Officer O'Neill.[12]The Cooney Tribunal found as fact that the Claimant did on occasion incite black inmates to make complaints of racial discrimination against officers, particularly O'Neill. 1102282. "The Rowett/Howard claims"[13]In November 2002 the Claimant presented this claim to the Ashford Tribunal, alleging that HMPS had refused to investigate his complaints against Mr Andy Rowett and Ms Julie Howard (later Mrs Julie Cliff).[14]Mr Rowett was a Prison Officer and Ms Howard was Head of Personnel. The relevant complaint, known as Complaint 3, was dealt with on its merits by a Tribunal at Ashford chaired by Mr Sprack, sitting on 19 - 21 April 2004.[15]That Tribunal found that on 17 October 2002 the Claimant made a complaint that Rowett and Howard had made untrue allegations about him, namely that he had a personal hygiene problem despite the fact, he alleged, that at the relevant time neither had met him or had any contact with him. The Tribunal went on to find that these allegations had been investigated first by Mr Leahy, who made findings of fact on the allegations. A second investigator, Mr Tullett, nevertheless himself obtained comments on those allegations from both Rowett and Howard. He rejected the allegations and wrote to the Claimant to that effect on 3 December 2002. Subsequently he sought and obtained confirmation from Rowett that he had met the Claimant prior to November 2000. It will be recalled that the Gardiner incident took place on 27 November 2000.[16]Material to the Liability Appeal before us is the Sprack Tribunal's finding recorded at LR paragraph 17:
"As far as complaint 3 is concerned, the Respondent did not refuse to investigate as asked by the Applicant [Claimant]."
A subsequent review application by the Claimant was refused by Mr Sprack. 1100710/04 and 1100777/04. "The Cliff/Rowett Personal claims"[17]It is convenient to take these claims next, slightly out of chronological order (see the Langley claim, below). These claims were presented to the Ashford Tribunal in April 2004.[18]The essence of these claims (LR paragraph 20) was that Rowett and Mrs Cliff (as she now was) had given false information that the Claimant had a personal hygiene problem and that they had done so maliciously in order to discriminate against him and victimise him.[19]Mr Sprack, sitting alone on 5 July 2004, considered these claims. He concluded that the underlying substance of the claims was identical to the Rowett/Howard claims litigated to a conclusion before the earlier Sprack Tribunal. Applying the rule in Henderson v Henderson [1843] 3 Hare 100 he struck out the claims as being misconceived.[20]The MacInnes Tribunal note (LR paragraph 20) that in his reasons Mr Sprack referred to a complaint by the Claimant made on 27 April 2004 that Ms Howard had falsified the Claimant's training records, without making a finding that that allegation was false. 1102580/03. "The Langley Claim"[21]On 3 September 2003 the Claimant presented this claim to the Ashford Tribunal. He alleged that HMPS had failed to investigate his complaint of discrimination against Mr Andy Langley, thus allowing Langley to further discriminate against him in 2001.[22]That claim was considered by a different Chairman, Mr Zuke, at a hearing on 8 January 2004. He dismissed the claim as misconceived, invoking the rule in Henderson v Henderson , on the basis that exactly the same complaint was raised under case number 110620/2002 (one of the five claims dismissed by the Cooney Tribunal when upholding the Personal Hygiene claim). Costs[23]The following costs orders were made against the Claimant in the Employment Tribunal arising from the foregoing litigation:(1) The Langley claim. £750(2) The Cliff/Rowett Personal claims. £800(3) The Carmichael claim. £1,000(4) The Rowett/Howard claim. £1,500[24]That order was made by the Sprack Tribunal following a costs hearing held on 17 August 2004. Material for our purposes are these findings, recorded by the MacInnes Tribunal at LR paragraph 22; that this claim had no reasonable prospect of success from the outset and the Claimant knew how weak his case was; and then this:
"The motive in pursuit of the case was not to seek just compensation, but to harass his employer into a settlement by a sustained campaign of litigation. Not only was there no reasonable prospect of success in the case, but he had no genuine belief that he had such a reasonable prospect."
They found that the claim was misconceived and that the Claimant's conduct in pursuing it was unreasonable.[25]On 24 November 2004 HHJ McMullen QC, sitting alone, heard the Claimant's Appeal against the substantive decision of Mr Zuke in the Langley Claim and the Chairman's costs order of £750. The appeal had been lodged out of time; an extension of time had been refused by the Registrar and the Judge dismissed the appeal against her Order, observing that the underlying issues in the case were doomed to failure. He ordered the Claimant to pay the Respondent's costs in the Appeal in the sum of £2,700.[26]It follows that the Claimant has had five separate costs orders made against him during the previous litigation totalling £6,750. Dismissal[27]A detailed account of events leading up to the Claimant's dismissal by Governor Hughes on 10 May 2005, which dismissal was upheld by Governor Atherton on 8 November 2005 (the effective date of termination; dismissal having been suspended pending appeal) and later by the Civil Service Appeal Board (CSAB), following a hearing held on 29 March 2006 at which the Claimant was represented by Mr Purnell, who appears on his behalf before us, is to be found at LR paragraphs 60 to 125.[28]Material for our purposes is the reason for dismissal articulated by Mr Hughes. He referred to the findings of the Sprack Tribunal on the Costs Application in the Rowett/Howard claim, concluding that the Claimant was seeking a settlement by harassing his employer, including individual members of staff against whom he made unreasonable allegations. This caused members of staff stress and anxiety and caused a huge strain on financial and Personnel resources. Trust had broken down between HMPS and the Claimant (see LR paragraph 112). In dismissing the Claimant's appeal Mr Atherton concluded that in instigating further Tribunals against the Prison Service (following the first claim) which were unreasonable, vexatious and unfounded, his actions amounted to harassment, (LR paragraph 118).[29]We note that the original disciplinary investigation related to the circumstances surrounding the outcome of both the Rowett/Howard claim and the Carmichael claim, although the final decisions were based solely on the Rowett/Howard claim being brought to harass HMPS and its employees. The Liability Judgment[30]The MacInnes Tribunal made three findings adverse to the present Respondents. We take those findings from the Judgment itself: "(1) The Respondents, HM Prison Service, Geoffrey Hughes and Peter Atherton discriminated against the Claimant contrary to Sections 2 and 4(2)(c) Race Relations Act 1976. [Victimisation] (2) The Respondent HM Prison Service unfairly dismissed the Claimant [Unfair dismissal] (3) The Respondent HM prison Service's failure to investigate the Claimant's complaint that Ms Howard had not met him before 27 November 2000 was a breach of the implied term of trust and confidence and contrary to the PSO 8460." [Breach of contract] All other claims of race discrimination, victimisation and breach of contract were dismissed. The Liability Appeal[31]The present Respondents challenge each of the three findings adverse to them. We shall consider each in turn. (1). Victimisation[32]The relevant acts of victimisation upheld by the Tribunal are listed among the issues identified by the MacInnes Tribunal at paragraph 1 LR as follows: "1.4 Governor Hughes' provisional dismissal decision. 1.5 The actual dismissal decision of 8 November 2005." [that is, Mr Atherton's decision to dismiss the Claimant's appeal against Mr Hughes' decision to dismiss him.][33]Thus the unlawful acts found by the Tribunal for the purposes of s4(2)(c) were acts of dismissal rather than some other detriment.[34]Did the three Respondents discriminate against the Claimant by way of victimisation by dismissing him? Section 2 RRA raises the following questions:(1) Did the Claimant do a protected act or acts? Plainly here he did; he made numerous complaints of unlawful racial discrimination against HMPS and named managers and brought proceedings against them in the Employment Tribunal (see s2(1)(a)).(2) Was he treated less favourably than others who did not do the protected acts? Again, we think the short answer is yes.(3) Was he less favourably treated by reason that he had done the protected acts? This was the first issue before the Tribunal.(4) If so, is he nevertheless disqualified from relying on the victimisation provisions of s2(1) by virtue of Section 2(2), which provides:
"Subsection (1) does not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith."
This raised a second issue before the Tribunal[35]We shall consider each of these issues in turn. The Reason Issue, Causation.[36]We use the word causation with care. As Lord Nicholls pointed out in the well known passage in his speech in Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830 paragraph 29, "causation is a slippery word". Lord Nicholls' guidance is cited by the Tribunal at LR paragraph 142. The Tribunal recognised that the correct test is why did the alleged discriminator act as he did? What consciously or unconsciously was his reason? The reason why a person acted as he did is a question of fact.[37]Thus the factual question for the Tribunal was, why did Mr Hughes dismiss the Claimant and Mr Atherton dismiss his appeal? Mr Barr submits that the answer lies in paragraph 143 LR where the Tribunal say this:
"We considered what was the reason, conscious or sub-conscious for the actions of the Respondents in this case. We find, as it was clearly expressed in the disciplinary charge, at the disciplinary and appeal hearings and to us that the reason for the Respondent's actions was that Governor Hughes and Peter Atherton considered the Claimant had brought the Rowett/Howard claim not for the purpose of achieving just compensation but to harass the First Respondent [HMPS] and its employees and that destroyed the relationship of trust and confidence between the Claimant and the First Respondent."
[38]Pausing there, that reason, in the minds, the MacInnes Tribunal found, of both Hughes and Atherton, in respectively dismissing the Claimant and dismissing his Appeal, precisely reflects and adopts the findings of the Sprack Tribunal in ordering the Claimant to pay £1,500 costs in the Rowett/Howard claim.[39]The finding is then repeated at paragraph 143 by the MacInnes Tribunal. They go on to say:
"It is our unanimous Judgment that the First Respondent in the person of Governor Hughes dismissed the Claimant and that Peter Atherton dismissed the Claimant's appeal by reason that the Claimant had brought the Rowett/Howard Claim against the First Respondent in order to harass his employer."
[40]How then did the Tribunal conclude that the tort of victimisation had been made out? They continue in paragraph 143 that those proceedings, the Rowett/Howard Claim, were an act protected by Section 2(1)(a) RRA. That is correct; bringing that claim in the Ashford Tribunal was a protected act. Next they found that the Claimant was treated less favourably than someone who had not done such a protected act. Again Mr Barr does not seriously quarrel with that statement.[41]However, it is at this point, submits Mr Barr, that the Tribunal's reasoning goes awry. In the next sentence they say:
"The Claimant was dismissed specifically by reason that he had brought the Rowett/Howard Claim. A comparator, actual or hypothetical, who had not brought such a claim, would not have been dismissed."
They end:
"It is our unanimous judgment that the Claimant was the subject of discrimination under s2 and s4(2)(c) RRA."
[42]Mr Barr contends that in reaching that conclusion the Tribunal lost sight of their critical finding, that the reason for dismissal was not simply that the Claimant had brought the Rowett/Howard claim, but that he had brought it to harass HMPS and its employees. The victimisation provisions of s2(1) were not designed to protect such an act. They are designed to protect bona fide claims; not claims brought with a view to harassing the respondents to them.[43]Mr Purnell accepts that bringing Tribunal discrimination proceedings to harass the employer is not a protected act under s2 RRA. However, in view of the Tribunal's finding of victimisation they must, he submits, in fact have found some other reason for the dismissal. We cannot accept that submission.[44]We agree with Mr Barr. On the Tribunal's clear finding as to the employer's reason for dismissing the Claimant (through Hughes and Atherton) the Claimant's claim here must fail and the appeal on this point succeeds. Section 2(2) Disqualification[45]Our finding on the causation issue disposes of the victimisation claim. However, for completeness, we should consider also the MacInnes Tribunal's findings on the s2(2) issue, which, in the structure of their reasons, preceded their finding at LR paragraph 143 on causation.[46]The Tribunal correctly directed themselves (LR paragraph 138) that s2(2) requires findings both that the allegations made by the Claimant (the protected acts) were false and not made in good faith.[47]With that in mind, they considered both the Rowett/Howard and Carmichael claims. As to the latter they found it was made falsely and not in good faith. As to the Rowett/Howard Claim they found that it was not made in good faith but not that it was false.[48]Our focus here is on the reasoning at LR paragraph 139. As Mr Barr points out, at LR paragraph 13, the MacInnes Tribunal records the Claimant's allegation in the Rowett/Howard Claim as follows:
"that his employers refused to investigate his complaints against Mr Andy Rowett and Ms Julie Howard."
[49]The Tribunal repeat that allegation in paragraph 139 and also repeat the finding of the Ashford Tribunal chaired by Mr Sprack in relation to Complaint 3 set out at LR paragraph 17, to which we referred earlier:
"… the Respondent did not refuse to investigate as asked by the Applicant [Claimant]."
[50]Unfortunately, and we accept Mr Barr's submission on this point, the Tribunal then took a wrong turn in paragraph 139. They state that the essence of the Claimant's claim in the Rowett/Howard claim was that Ms Howard had never met him before 27 November 2000 and her allegation that she had was untrue.[51]True it is that that was his underlying complaint which he wanted HMPS to investigate. But, as the MacInnes Tribunal correctly recorded at paragraphs 17 and 139, his complaint in the Rowett/Howard claim was not that Ms Howard had told an untruth, it was that HMPS had not investigated his complaint that both she and Rowett had told lies. Where the Tribunal veered, we think fatally, off course was in then embarking on a quite separate question by reference to their finding (LR paragraph 48) that on 27 April 2004 the Claimant complained to Governor Hughes that Ms Cliff had falsified training records to which she had referred in a letter to Governor Tullett in November 2002. The Tribunal was unable to find that that allegation was false.[52]We return to the chronology in the litigation. Mr Sprack's Tribunal sitting at Ashford heard the Rowett/Howard claim (which should not be confused with the subsequent Cliff/Rowett personal claims) on 19 - 21 April 2004. It follows that the Claimant's complaint to Governor Hughes about Ms Cliff falsifying training records post-dated the presentation of the Rowett/Howard claim in November 2002 and the renewed complaint of 27 April post-dated the substantive hearing of that claim. It follows, in our judgment, that any lack of investigation of the 27 April 2004 complaint, repeating a complaint first made on 13 April, was immaterial to the Rowett/Howard claims, falsity or otherwise, particularly in circumstances where having been taken to the Sprack Tribunal substantive decision it seems that an amendment to make direct claims against Rowett and Howard was refused. That subsequently became the Cliff/Howard Personal complaint.[53]The finding by the Sprack Tribunal that the Rowett/Howard claim, as properly understood, was not made out rendered the claim, in our judgment, false for the purposes of s2(2). Indeed, that finding by the Sprack Tribunal was, in our view, binding as between the Claimant and HMPS and its employees. It determined that the Rowett/Howard claims were false. That is to say, not in accordance with the truth or the facts. For the purposes of those claims, HMPS had investigated the Claimant's complaints. The fact that he subsequently raised a different complaint relating to his personnel records, which he required investigating, is in our view nothing to the point.[54]Accordingly, we shall allow the Respondents' appeal against the MacInnes Tribunal's finding of unlawful victimisation on this separate and additional ground also. (2) Unfair Dismissal[55]The Tribunal correctly applied the two stage approach required by s98 of the Employment Rights Act 1996 , (ERA). First they found that HMPS, as employer, had shown a potentially fair reason for dismissal, namely conduct. Their finding as to the relevant conduct, at LR paragraph 149, being the reason for dismissal was:
"… that he [the Claimant] had brought the Rowett/Howard claim to harass his employer."
[56]Pausing there, the Section 98 reason for dismissal precisely reflects the Tribunal's finding, later repeated in LR paragraph 143, that the reason for the treatment complained of as amounting to an act of victimisation under s2 RRA was that the Claimant had brought the Rowett/Howard Claim in order to harass the Respondents.[57]Moving to the second stage, reasonableness, under s98(4) ERA, the Tribunal find that the dismissal (for that reason) was unfair on two grounds:(i) because, the Tribunal say at paragraph 149, they had found 'that' [i.e. bringing the Rowett/Howard claim to harass his employer] to have been an act protected by s2 ERA and to have dismissed the Claimant by reason that he had done the protected act was unlawful. It cannot be reasonable for an employer to dismiss an employee for conduct which is protected by s2 RRA. Whether or not as a matter of law, unlawfully discriminatory conduct will necessarily always result in a finding of unfair dismissal may require further debate in another case. In the instant case, following our finding that bringing discrimination proceedings in order to harass the employer and its employees is (a) not a protected act and (b) was false and not made in good faith, and thus did not amount to the statutory tort of victimisation, inevitably leads us, as Mr Barr submits we must, to conclude that this finding of unfairness under s98(4) ERA cannot stand.(ii) The second basis for the Employment Tribunal's finding of unfairness was the finding (Reasons paragraph 149) that the failure by HMPS to investigate the Claimant's allegation that Ms Howard had falsified his training record and had falsely claimed that she had met him before 27 November 2000 was unreasonable. They found it was unreasonable for Hughes to dismiss and for Atherton to uphold the dismissal without having investigated that matter.[58]This conclusion relates back to the Tribunal's finding that HMPS ought to have investigated the Claimant's complaint made on 13 and 27 April 2004, the second date being after the Sprack Tribunal at Ashford had heard the Rowett/Howard complaint. We note the Sprack Tribunal reasons in the Rowett/Howard claim that an application by the Claimant to amend that claim to add a complaint of racial discrimination against those two employees was refused. That later became the Cliff/Rowett personal claims which were struck out by Mr Sprack under the rule in Henderson v Henderson . They found that HMPS had investigated that complaint. That was a finding binding between these parties in the MacInnes Tribunal litigation. Secondly, we remind ourselves of that Tribunal's finding as to the reason for dismissal; it was that the Claimant had brought the Rowett/Howard claim to harass HMPS. We return to the Burchell test, subsequently improved by the Court of Appeal in Foley v Post Office [2000] IRLR 827 and HSBC v Madden [2000] ICR 1283 . Allowing for the alteration of the burden of proof since Burchell was decided; did the employer genuinely believe that the employee was guilty of the conduct in question, that is bringing Tribunal proceedings to harass him and his employees; answer yes; that was the reason for dismissal. Secondly, did he have reasonable grounds for that belief; answer yes; there was a finding by an independent tribunal to that effect (the Sprack Tribunal). Thirdly, had he carried out as much investigation into the matter as was reasonable? The matter was the allegation that the Claimant had brought the Rowett/Howard claim to harass HMPS; that had been investigated first by the Sprack Tribunal and then by HMPS itself.[59]It does not seem to us that investigation into a subsequent complaint by the Claimant bears on the question raised by the Burchell test. Accordingly we accept Mr Barr's submission that this finding similarly cannot stand and we set aside the Tribunal's finding of unfair dismissal.[60]We are fortified in this conclusion by what is said in the remedy reasons of the MacInnes Tribunal. There at paragraph 24 they said:
"… the failure to investigate the Claimant's allegations against Ms Howard are inextricably intertwined and interdependent."
[61]In our judgment, as Mr Barr submits, that observation neatly demonstrates the Tribunal's error of approach both to the victimisation claim which was upheld and that of unfair dismissal; the reason for dismissal, which they found as fact, was a narrow one; that the Claimant had brought the Rowett/Howard claim to harass HMPS, not to obtain just compensation. Investigating that charge should not be confused with investigating the subsequent fabrication complaint made by the Claimant against Ms Howard. That the MacInnes Tribunal espoused that confusion renders their decision, both on unfair dismissal and victimisation, wrong in law. (3) Breach of Contract.[62]The relevant finding is at paragraph 153 LR. Here, the error identified earlier in this judgment is further compounded. The Tribunal there find that HMPS's failure to investigate the Claimant's allegation against Ms Howard, specifically that the Claimant's training record which she quoted to Mr Tullett in November 2002 was inaccurate (LR paragraph 1.15.1), was critical to the reason for dismissal, amounted to a breach of the implied term of trust and confidence. They relied on their reasoning at paragraph 149. In our view it was irrelevant to the reason for dismissal, on the Tribunal's findings of fact as to that reason. Mr Purnell accepts that the breach of contract stands or falls on the sustainability of the reasoning at paragraph 149. It therefore falls, that reasoning being flawed for the reasons we have given. Conclusion[63]It follows that the liability appeal succeeds, the MacInnes Tribunal findings on liability in favour of the Claimant are set aside. His claims are dismissed. Remedy appeal and review cross-appeal[64]It necessarily follows, as both counsel accept, that without liability there can be no remedy, so that the remedy appeal brought by the Claimant fails and is dismissed. Similarly there is now no finding of liability susceptible to review at the instance of the Respondents and therefore the cross-appeal is also dismissed.