EAT/0402/08/ZT ABBEY NATIONAL PLC v MS E BASCETTA [2009] UKEAT 0402_08_2002

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2009] UKEAT 0402_08_2002Case No Appeal No. UKEAT/0402/08/ZT UKEAT/0403/08Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
EAT/0402/08/ZT ABBEY NATIONAL PLCAPPELLANTMS E BASCETTARESPONDENTEAT/0403/08/ZT MS E BASCETTAAPPELLANTABBEY NATIONAL PLCRESPONDENT
Before
Mr Justice Wilkie Ms K Bilgan Mrs D M PalmerDate 20 February 2009
[1]APPEARANCES For the Appellant in EAT/0403/08/ZT and the Respondent in EAT/0402/08/ZT MS E BASCETTA (The Appellant / Respondent in Person) For the Respondent in EAT/0403/08/ZT and the Appellant in EAT/0402/08/ZT MR DANIEL OUDKERK (of Counsel) Instructed by: Messrs DLA Piper UK LLP Solicitors Victoria Square House Victoria Square Birmingham B2 4DL SUMMARY DISABILITY DISCRIMINATION TRADE UNION RIGHTS Where the ET relied, crucially on material in coming to its decision which did not form part of the explicitly pleaded case with which the appellant's relevant witness had not been given the opportunity in evidence to deal, the conclusions of the ET could not stand and the matter had to be remitted to a different ET for these issues to be properly adjudicated upon. THE HONOURABLE MR JUSTICE WILKIE For the avoidance of doubt we refer throughout to Abbey National plc as the Respondent and Ms E. Bascetta as the Claimant.[2]The Employment Tribunal, sitting at Bedford on 12 dates between 1 October 2007 and 20 February 2008, made the following decisions for reasons set out in a judgment dated 11 June 2008. i) The Claimant was unfairly dismissed by the Respondent. ii) The Respondent unlawfully discriminated by way of victimisation against the Claimant by dismissing her, but not otherwise. All other claims made by the Claimant against the Respondent were dismissed.[3]The Respondent appeals against the findings of unfair dismissal and discrimination by way of victimisation on the grounds of the dismissal. The Claimant cross appeals all the other decisions dismissing her other claims. The Background[4]The Respondent is a bank which was taken over by Santander in November 2004, following which there has been substantial restructuring. The Tribunal found, by way of example, that, in respect of its IT function, some 350 staff were made redundant between February 2005 and 2006 and a further 300 were transferred to another organisation within the group namely ISBAN.[5]Prior to her dismissal, the Claimant was employed by the Respondent in its IT department as a team leader located at Milton Keynes. She had had a child and a miscarriage. She sought to avail herself of maternity entitlements, but a dispute had arisen whether the Respondent had fulfilled its legal obligations in those respects. Having pursued a grievance through internal procedures, the Claimant made a claim to the Employment Tribunal in respect of unlawful sex discrimination and other matters ("the First Claim"). It was common ground that bringing the First Claim was a protected act. She was, at that stage, represented by solicitors, as was the Respondent. A consent order was made on 5 December 2005 by the Tribunal in the following terms:
"The parties having agreed terms of settlement the case is adjourned to the first open date after 11 January 2006. Unless the claimant presents an application in writing to the Tribunal on or before 4pm on 4 January 2006 to restore the hearing date in the event of dispute as to the terms of settlement or calculations thereunder the claim is dismissed upon withdrawal by the claimant."
No application was made to restore the hearing before that date or time and, accordingly, the First Claim was dismissed upon withdrawal.[6]A dispute arose whether, in fact, final agreement had been reached as to the terms of settlement, the Claimant asserting that it had, the Respondent asserting that it had not. That was an issue to be determined by the Tribunal in the present claim. It determined it in favour of the Respondent. That is an issue to which we will turn in dealing with the cross appeal.[7]It was alleged by the Claimant, and found by the Tribunal, that her subsequent dismissal was an act of victimisation, the protected act being the bringing by her of the First Claim. The dismissal[8]From February 2005 the Claimant reported in different capacities, ultimately as IT team leader, to a Mr Sheridan who in turn was, by December 2005, reporting directly to a Mr Gutteridge. By 1 February 2006, the number of team leaders within the area of Mr Sheridan's responsibility had been reduced from five to two. Of the three who had been dismissed by reason of redundancy, two were men and the third was a woman. The remaining team leaders were: the Claimant, and a Ms Sue Watkins with whom Mr Sheridan had worked for a number of years.[9]The Tribunal concluded that, in her role, the Claimant was responsible for audit, risk, business continuity planning and dealing with ISBAN. Mr Sheridan considered this last to be her primary role.[10]On 21 October 2005 the Respondent notified the DTI of 2,277 proposed redundancies to take place between 27 January 2006 and 31 December 2007. Consultation with the trade unions started on 21 October 2005. The Respondent had an agreed procedure with the trade unions involving consultation with the union and individuals, a review and an appeals process. The procedure was that senior managers decided on an appropriate downsizing of their divisions. More junior managers produced a rationale of how to achieve those targets. Management presented and explained to unions their proposals; the union was able to challenge the proposals but in practice only rarely prevented a case from progressing. Once the union had been consulted, the Respondent informed all the individuals affected. There was then individual consultation, during a two week period, at the end of which notice of dismissal on grounds of redundancy was issued. At that point the employee was normally placed on garden leave. There was then a two stage appeal process. This procedure was adopted in respect of the Claimant.[11]Mr Gutteridge, on 6 February 2006, informed Mr Sheridan that one person had to be made redundant from his area and the two of them decided that one of the two team leaders would be selected. Mr Sheridan was aware of, but not involved in, the claim which the Claimant has made to the Tribunal. He took advice from HR and decided upon a revised approach to managing the relationship with ISBAN which would reduce the volume of work involved within his team. He devised a job for the single team leader and identified the competencies for the role which were set out in tabulated form. He complied with the Respondent's procedures for devising the selection criteria and for the redundancy process. The trade union was consulted about the competencies and no objection was raised. The Tribunal concluded, at paragraph 38, that the competencies identified by Mr Sheridan were not only appropriate but that Mr Sheridan, exercising his managerial skills, thought them to be appropriate.[12]Mr Sheridan carried out a desk top exercise to determine which of the two to select and which to place at risk of redundancy. His evidence to the Tribunal was that he assessed the Claimant using his direct working knowledge of her over a 12 month period, acknowledging that she had a detailed technical knowledge gained outside that period. When the decision was being reviewed, on 5 July 2006, he had stated that he had concentrated on the last 12 months, that being the period he had worked with both his team leaders, and, at the final appeals hearing on 14 August 2006, he again referred to the 12 month period and stated that events outside the 12 month period were not relevant as they had not formed part of the desk top selection process which was based strictly on 12 months experience of the individuals. Thus, his position was that each of the two possible candidates would have had experience and achievements outside of that period, which they would have thought important, but which were not used.[13]Mr Sheridan, having carried out his assessment under the various competencies, scored the Claimant at 15 and Ms Watkins at 17. Each competency had a maximum of 2 points. It was possible for a candidate to be given no points against a particular competency.[14]The Claimant's positive case, throughout the various review and appeal processes internally, in her ET1 ( at paragraph31) and in her witness statement of September 2007(at paragraph 231), was that she had been unfairly treated and victimised in respect of the marking of her assessment. At no point in any of these documents did she assert that the marking of Ms Watkins had been over generous. As for her internal appeals and ET1, this was not surprising. On 27/2/06, at a one to one review with Mr Sheridan, she had asked to see Ms Watkins' assessment but this had been denied her. It was produced to her in response to the sex discrimination questionnaire in February 2007, several months before her witness statement.[15]The Claimant has asserted that, at the Tribunal, she put to Mr Sheridan, in cross-examination, whether it was appropriate for him to have used, in assessing certain of the competencies of Ms Watkins, her performance vis-à-vis her responsibilities for "SOX" when she had only been performing that role for a matter of a couple of weeks and that he gave no response.[16]This, as it turns out, is a crucial issue because the Tribunal criticised Mr Sheridan for having relied on Ms Watkins performance in relation to SOX in assessing her. It placed these criticisms at the heart of its conclusions on unfair dismissal and victimisation by dismissal. The Respondent, in turn, places that issue at the heart of its criticisms of the Tribunal. It says that the Tribunal crucially based its decision on a claim which had never been made by the Claimant and on matters on which Mr Sheridan had never been given an opportunity to comment.[17]We have been shown by the Claimant the Employment Judge's relevant notes and the notes of the Respondent's solicitor. The former does not record the questions asked but the latter does. There is nothing in either of these notes to support her contention that such questions were asked, or that Mr Sheridan failed to answer them. In our judgment, had such pointed and central questions been asked and had Mr Sheridan failed to answer them, it would have been of such significance that it would be very surprising if neither the Employment Judge nor the Respondent's solicitor had made a note of them. Given the central role of this issue in the decision, and given its potentially very serious consequences for Mr Sheridan, the Claimant and Respondent, it would not be safe for us, in the circumstances we have described, to proceed on the basis that the Claimant is right in her recollection. The decision on unfair dismissal[18]In relation the Claimant's positive case that she had been unfairly marked down, she relied on her mark in relation to technical competence 1:
"change facilitation stakeholder management."
The Claimant had been awarded a score of 1 not 2. Mr Sheridan accepted, and it is clear from the assessment document, that a factor in not giving her the maximum mark was an incident concerning ISBAN. We need not go into the detail of that, but the Tribunal did, between paragraphs 41 and 45.2. The Tribunal concluded that Mr Sheridan had unfairly marked the Claimant down because of that incident. There had been a conflict with ISBAN in which the Claimant stood her ground, only doing her job. The Tribunal concluded that she was unfairly marked down for that. The Respondent does not take issue with that conclusion.[19]In relation to the correctness or otherwise of the assessment of Ms Watkins, the Tribunal dealt with that at paragraph 47 which reads as follows:
"In respect of the assessment of Ms Watkins we note that in respect of competencies 1 and 2, namely change, facilitation / stakeholder management and project management and to a lesser extent competency 3 process improvement, Ms Watkins's responsibility for SOX influenced the (beneficially to Ms Watkins) scoring. SOX however was only transferred from Mr Metcalfe to Mr Sheridan who then allocated it to Sue Watkins at the end of January 2006. Thus at 10 February 2006 it was impossible (we have heard no explanation, and on the limited evidence presented to us), to assess Ms Watkins could properly be evaluated against those competencies viz a viz any involvement with SOX. If those were taken into account it appears more likely than not that Mr Sheridan's assessment of Ms Watkins would have been reduced by between 1 and 3 marks."
[20]In addition, the Tribunal concluded that Mr Sheridan had not adopted a strict 12 month time scale for his assessment, though they accept that he attempted to do so. Thus, he took account of the fact that the Claimant had received a gold award within the 12 month period. He also took into account that Ms Watkins had received a gold award outside that period, though not by much. In argument it became clear that the gold award given to Ms Watkins, to which Mr Sheridan had regard but to which he should not, was directly relevant to pipeline competence no. 4 "Business Knowledge". In fact she was assessed as 1 for that. The Claimant accepted in argument that Ms Watkins would have been assessed as 1 on that competence regardless of taking account of the gold award and so, in terms of the markings, this error on the part of Mr Sheridan made no difference.[21]The Tribunal considered the review meeting at which the Claimant's selection was called into question and notes, at paragraph 64, that the ISBAN incident was referred to by the Claimant, but not the scores attributed to Ms Watkins. Subsequently, at the second appeal Mr Sheridan on 14 August, there was reference to his having strictly dealt with the two candidates within his 12 month experience of them, and to the ISBAN incident. No complaint was made about the marks given to Ms Watkins. We repeat that the Claimant had, at this stage, been denied access to them so could scarcely have been expected to have criticised them.[22]The fairness or otherwise of the dismissal and of whether it was by reason of victimisation was dealt with in paragraphs 79 and following. The Tribunal expressed themselves satisfied that the main reason for the Respondent's decision to dismiss the Claimant was redundancy, a potentially fair reason. (para 86). They reminded themselves of their obligation not to substitute their own decision and that they were not in the position to assess either the Claimant or the other team leader Ms Watkins. They acknowledged that the selection criteria were not unreasonably arrived at by the manager and the process was potentially fair. In paragraph 89 they stated that the selection exercise was subjective, based on the opinion, memory and knowledge of the decision taker Mr Sheridan. They found that he was inconsistent in his application of his knowledge to the criteria. In paragraph 89 they expressed themselves as follows:
"Although Mr Sheridan may have attempted not to use his greater knowledge of Ms Watkins he did so, giving credit to her for work not done and relationships within the organisation and matters outside the stated period of consideration. In addition the ISBAN incident detrimentally affected the score given to the claimant, lessening the marks she received."
They characterised those matters as fundamental flaws which the internal review procedure did not properly address. Accordingly, in paragraph 91 they found that the Respondent's application of its procedure was flawed to an extent that it took it outside the range of reasonableness and, accordingly, found that the Claimant was unfairly dismissed. The Appeal against the finding of unfair dismissal[23]The Respondent appeals on the following bases: First, whilst accepting that the Tribunal were entitled to come to the conclusion they did on the ISBAN incident, the Respondent says that, at most, that could have made a difference of one mark to the Claimant leaving her still one mark short of the total achieved by Ms Watkins. Even were the marks equal, then, they say, by virtue of the factors such as length of service and sickness records, it was common ground, on the basis of the evidence of the one to one review meeting on 27/2/06 between the Claimant and Mr Sheridan, that, in that event Ms Watkins would have been retained and the Claimant dismissed because of her length of service. The Claimant accepts that she had less service than Ms Watkins. She does not accept that she had a worse sickness absence record over the 12 month period, unrelated to her pregnancy and miscarriage, than Ms Watkins, which was another factor to be considered in a "tiebreak". The Respondent argues that, even if it was unfair of the Respondent to mark the Claimant down in respect of the ISBAN incident she would still have been fairly dismissed (see Kelly-Madden v Manor Surgery [2007] IRLR 1 7). Second, it is said that the Tribunal erred in law in impermissibly embarking upon a reassessment of the candidates and substituting its own decision for that of the Respondent contrary to the guidance of the Court of Appeal in British Aerospace plc v Green [1995] ICR 1006 at 1019 F-H.[24]In that regard it relies on paragraph 47 as crucial not least because, as is now clear, the error of Mr Sheridan, in taking account of the gold award to Ms Watkins, would still have left the Claimant one mark worse off than Ms Watkins[25]The Respondent says that the Tribunal made a series of findings consistent with there having been a fair dismissal: first, the Respondent decided that it no longer needed two team leaders (para. 80). Second, following a selection exercise using competencies agreed with the union, the Claimant was dismissed (para. 38). Third, there was a genuine redundancy situation and the main reason for the decision to dismiss was redundancy (paras. 80, 86). Fourth, the selection criteria were reasonably arrived at. The process was potentially fair (para. 88). Fifth, there was no reason to believe that the Respondent did not comply with the statutory dismissal and disciplinary procedures. It followed, therefore, that the only issue upon which the finding of unfairness rested was the selection for redundancy by Mr Sheridan. In circumstances where the Claimant would have needed three additional points to make any difference and her own case was that she should have scored only one more point than she did because of the ISBAN unfairness, the decision to dismiss her, and not Ms Watkins, could only be unfair if the unfairness included over marking Ms Watkins of at least 2 marks. In turn that focuses attention on the correctness in law of paragraph 47 of the decision.[26]The attack on that paragraph is threefold. First: it is said to have been an impermissible exercise ( British Aerospace v Green ). Second: it is said that the claim had never been to attack the assessment of Ms Watkins in this respect and, as a corollary; the matter was never put to Mr Sheridan so as to give him the opportunity to deal with it, thereby breaching the rules of natural justice. Third: it is said that, in any event, it was perverse of the Tribunal to have said that Mr Sheridan acted improperly in marking Ms Watkins as he did in respect of these three competencies in which he referred to her SOX experience.[27]As for the first point, we do not accept that it was, necessarily, impermissible for the Tribunal to have considered the assessment of Ms Watkins to see whether there was any obvious unfairness, provided they did not redo the selection exercise. This was not a mass redundancy where a number of outcomes could have been fair. This was a direct choice between two employees and so, in order to investigate whether there was an unfairness in the process which affected the outcome, whether it be unfairly adverse to the Claimant and/or unfairly beneficial to Ms Watkins, it would not, in our judgment, be improper for the Tribunal to look at both assessments, provided they did not make the mistake of redoing the exercise themselves, thereby substituting their own judgment for that of the Respondent.[28]As for the second, the Respondent rely, in this context and in the case of victimisation, on British Gas Services Ltd v. Mc Caull [2001] IRLR 60 at paragraph 31, Chapman v Simon [1994] IRLR 124 at paragraphs 41-42, and Tarbuck v Sainsbury's Supermarkets Ltd [2006] IRLR 664 at paragraphs 58.59 and 62. In our judgment it is overstating the case to say that the Claimant had not put in issue the correctness of the assessment of Ms Watkins as well as her own assessment. It is right to say that the only positive case she put forward was that she had been marked down unfairly but, in our judgment, the question of the fairness of the selection as between the two of them was put generally in issue sufficient to put the correctness of the assessment of Ms Watkins in issue.[29]Where, however, we accept the contention of the Respondent is its complaint that the specific issue upon which the Tribunal focussed as crucial to its reason was an issue which was not explicitly raised by the Claimant in her ET1, or her witness statement, and about which it would not be safe to proceed on the basis that it was the subject of cross examination of Mr Sheridan before the Tribunal. In our judgment, therefore, the Tribunal, in deciding as it did, using the SOX material as crucial to its reasoning, acted in a way which was procedurally unfair to the Respondent and, accordingly, its finding of unfair dismissal cannot stand.[30]As for the third, it is said that the only hint of the reasoning of the Tribunal which relates to the Tribunal's conclusions in paragraph 47 is that it said that he gave Ms Watkins credit for "work not done" in paragraph 89. This is as close as one gets in the decision to having their thinking spelt out on this issue.[31]Factually the statement that it was "work not done" is inaccurate as, on any view, she had started working on SOX. But, apart from that, it is said that the Tribunal's reasoning in paragraph 47 is perverse. It is pointed out that, in respect of competency 3, "process improvement", Ms Watkins scored 1 out of 2. The assessment form referred to the experience which she had in relation to that competency, apart from her work on SOX, but pointed out "(Ms Watkins) will need to demonstrate these skills again during the development of the SOX controls and managing the implications on IT etc". It is said that the conclusion of the Tribunal that Mr Sheridan had regard to her work on SOX on this competency was perverse, because the assessment form did not suggest that she had scored 1 because of SOX. On the contrary, the form demonstrated that she would need to demonstrate those skills in the light of what it did say positively about her past experience unrelated to SOX under this competence. It is said that it would be perverse for the Tribunal to suggest Ms Watkins ought to have scored 0 on that competence. In our judgment the criticism is well founded. The Claimant did not seek to argue that Mr Sheridan could be criticised for the way he dealt with the SOX issue in his assessment of Ms Watkins under this competency.[32]In relation to competency 1, "change facilitation/stakeholder management", the assessment sheet started by saying that Ms Watkins had shown that she was flexible and adaptable to the changing nature of the business at that moment. It went on to refer to the fact that she "has recently taken on responsibility for the SOX control.". Thereafter it set out, in detail, what Mr Sheridan assessed her competency to be by reference to her SOX experience and assessed her as 2. In our judgment it would not have been perverse for the Tribunal to have concluded that such an assessment, informed for the most part by what could, on any view, have only been two weeks experience of that work, was unfairly beneficial to Ms Watkins, provided they had first obtained evidence by way of explanation or justification of his assessment from Mr Sheridan and had properly assessed it, remembering the limitations of their permissible role.[33]In relation to competency 3:
"project management,"
SOX was one of three matters referred to by Mr Sheridan as evidencing Ms Watkins' level of competence. It is said that it was perverse for the Tribunal to have concluded that the assessment of Ms Watkins as a "2" was unfair where the work on SOX was taken in the context of other work she had been doing. In our judgment the Respondent has a point that, on the face of it, this seems a perverse conclusion for the Tribunal to have drawn. The Claimant did not seek to put this assessment at the forefront of her criticism.[34]The Respondent points out that, on the basis of what could have been permissible criticism of Mr Sheridan by the Tribunal, the mark of the Claimant would have increased by 1 and that of Ms Watkins would have decreased by 1 leaving their marks equal. In that event, the Respondent argues, the tiebreak would have resulted in the Claimant still being dismissed. Thus the Respondent argues that it is plain and obvious that the dismissal was fair and so we should reverse the Tribunal's decision on this issue. In our judgment that is too mechanistic an approach. We are unable to say that it is clear that the dismissal was fair. There are a number of strands of potential unfairness which an employment tribunal, dealing with the matter properly, might be entitled to find cumulatively led to an unfair dismissal. We therefore uphold the appeal, overturn the decision of the Tribunal on unfair dismissal and remit the case on this issue to a differently constituted Tribunal to determine. Victimisation[35]The Tribunal commenced its consideration of the victimisation complaint in paragraph 92 of its decision. In particular, it considered whether it could reasonably conclude from the facts found that a reason for the selection of the Claimant for redundancy was because of the previous earlier proceedings. In paragraphs 92-4 they set out their concerns in the following terms:
"92. …The Respondent's explanation for the selection of the Claimant for dismissal was the outcome of the selection exercise and that Mr Sheridan considered Ms Watkins to be a natural fit for the job going forward. … 93. The Claimant had made a protected act. The Claimant was selected for redundancy. The scoring of the selection exercise was subjective and flawed. Credit was given to Ms Watkins for work she had not done and also in part Mr Sheridan used his knowledge of her over a period greater than 12 months to Ms Watkins' benefit when scoring her. For these reasons we consider that the protected act could have been a factor in the decision to select the Claimant for dismissal and thus the burden of proof transfers to the Respondent to establish that it did not. 94. The fact that the Claimant was given less marks than otherwise might have been the case because of the ISBAN matter does not appear to relate in any way to the earlier proceedings. That matter we have found affected the Respondent Mr Sheridan's scoring of the Claimant."
[36]On the basis of that they then considered that the burden of proof had switched and whether the Respondent had discharged the burden of proof which it now bore. They do so in the following terms:
"95. In respect of the other discrepancies. We are not persuaded that the Respondent has given a cogent explanation as to why benefit in the scoring was given to Ms Watkins in the assessment in respect of Socs [SOX] matters (which was referred to on three occasions) together with the vagueness of the period of assessment. The Claimant was not given credit for matters which occurred outside the 12 month period as identified during the appeal process yet Ms Watkins was. 96. We find that the Respondent has not been able to establish that part of the reason for the Claimant's dismissal was the protective act. To that extent the complaint of victimisation in respect of dismissals succeeds."
[37]It is pointed out by the Respondent that there must be a typographical error in paragraph 96. It can only make sense if it were to read "part of the reason for the Claimant's dismissal was not the protected act". The Respondent's appeal in respect of this victimisation[38]The first ground is that the finding of victimisation was on the basis of a new case which had never been put to Mr Sheridan by the Claimant or the Tribunal (see the authorities referred to above.)[39]For the reasons we have already given, in our judgment the Tribunal erred procedurally in giving weight to the SOX issue without having given the Respondent the opportunity to deal with the point. On that basis, if on no other, the appeal of the Respondent must succeed.[40]The Tribunal itself concluded that the ISBAN incident, which was unfairly taken into account by Mr Sheridan, was not an incident of victimisation. The matter of the gold award had been explicitly flagged up and the Respondent had had the opportunity to deal with it in evidence. That alone, in our judgment, could not have formed the basis of any Tribunal reasonably concluding that sufficient had been raised on the allegation of victimisation to cause the burden of proof to shift.[41]Ground 2 asserts that the Tribunal misdirected itself or misunderstood and misapplied the burden of proof. It is said that all that was established was a protected act, the fact of the Claimant's selection for redundancy and the subjective nature of the scoring exercise. This, it is said, does no more than raise a difference in status or a difference in treatment which, without more, cannot amount to sufficient to shift the burden of proof. The Respondent relies on the following statements of authority: Madarassy v. Nomura International [2007] ICR 867 at paras. 54-58, and Bahl v. The Law Society [2004] IRLR 799 headnote.[42]The Claimant contends that the matters set out in paragraph 92 and 93 of the decision are capable of being sufficient to go beyond the establishment of a difference in treatment. In our judgment, with some hesitation, we agree with her and so this ground of appeal is not made out. It was not just the fact that the selection process was subjective, which had nothing to do with victimisation because the criteria had been agreed properly by the union, it was the evidence of their application, in ways which were individually and cumulatively unfair, which enabled the Tribunal potentially to conclude that the burden of proof had shifted, provided always that they applied their mind to the correct question of what "by reason of" meant.[43]This takes us to Ground 3: It is said that the Tribunal failed to direct itself according to the guidance of the House of Lords in Khan and St Helens and failed to identify the "core reason" for the Claimant's treatment.[44]This is a reference to The Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830 at para 77 where Lord Scott said:
"The words "by reason that" suggest, to my mind, that it is the real reason, the core reason, the causa causans, the motive for the treatment complained of that must be identified."
This was further considered by the House of Lords in St Helens MBC v Derbyshire [2007] UKHL 16 Lord Bingham at para 9 who said:
"In Khan, above para 29, Lord Nichols propounded a simple common sense approach to this question. It is to ask why the alleged discriminator acted as he did. What matters is the discriminators subjective intention, what was he seeking to achieve by treating the alleged victim as he did?"
The essential question for the Tribunal on this victimisation claim was "why did Mr Sheridan act as he did?" ( HM Prison Service v Ibimidun [2008] IRLR 940 at para 37.) The Tribunal, it is said, never asked itself this question and certainly did not do so when considering whether the burden of proof had shifted. We agree. Had it done so, it is said by the Respondent, it would have been clear, on the basis of its own findings of fact, that the subjective reason for Mr Sheridan's action was not victimisation. The Tribunal had already held, in paragraph 89, dealing both with the SOX material and the gold award, that "although Mr Sheridan may have attempted not to use his greater knowledge of Ms Watkins he did so giving credit to her for work not done and relationships within the organisation and matters outside the stated period". As far as the gold award is concerned they had also held in para. 83 "Although Mr Sheridan stated that he had limited his assessment of the parties to his knowledge of them of the last year, that does not appear to have been entirely the case. That was almost inevitable because of the subjective nature of the assessment." They had also found as a fact that: the main reason for dismissal was redundancy, that the redundancy situation was genuine, that the criteria had been established by Mr Sheridan genuinely and had been agreed by the trade unions.[45]Against that background, it is said that, had the Tribunal asked itself the question posed by the House of Lords it could not have concluded that it could reasonably be concluded that the subjective reason for the Claimant's dismissal by Mr Sheridan was that she had performed a protected act. In our judgment, whilst we can see that these are strong arguments which might persuade an employment tribunal directing itself properly, we are unable to characterise it as so strong that it makes it plain and obvious that the claim could not succeed so as to oblige us to substitute our decision for that of the Tribunal.[46]In our judgment the other three grounds of appeal on this issue add nothing.[47]Accordingly, we uphold the appeal against the finding of victimisation in respect of the dismissal decision. However, we remit this issue to a differently constituted tribunal. The cross appeal[48]The Tribunal identified the issues in relation to which there is a cross appeal as follows: 1. Whether there was an agreement between the parties resolving claim number 1201327/04 – if so and the Respondent did not adjust the Claimant's salary, bonus, pension and redundancy payment to reflect this on the grounds of direct sex discrimination and/or the grounds of victimisation and/or for a reason relating to pregnancy or childbirth (para 2 of the decision). 2. Whether there was a settlement agreement between the parties in respect of that previous claim, if so, was the Respondent's failure to honour the agreement because the Claimant had brought the proceedings the subject of the present claim so as to amount to victimisation. 3. If there was a settlement whether the sum was outstanding at the termination of the Claimant's employment so as to give rise to a claim for sums due and owing.[49]Each of these claims depended upon a finding of fact by the Tribunal whether or not there was a settlement as of 4 January. It set out its findings of fact starting at para 12 -15, 21 -32. For the most part this was a recitation of correspondence much of it between solicitors. It returned to this issue at paras 51 - 60 which concerned the grievance taken up by the Claimant in respect of her contention that the Respondent had failed to give effect to the settlement agreement in relation to the First Claim. Finally they returned to the issue of these claims beginning at para 73. They concluded that there was no final agreement between the parties on 4 January 2006 or at any time. There was always a disagreement about the precise sum to be paid by the Respondent to the Claimant. Clause 7 of the proposed contract, which provided for payment to be made within 28 days but which could not be implemented after the First Claim had been dismissed by withdrawal, was not, in the Tribunal's judgment severable from the rest of the agreement. Thus, as there was no agreement they concluded that the first, second and third complaints had to fail. So too did the fourth claim of victimisation based upon an alleged failure by the Respondents to honour the second agreement (see paras 73 -75).[50]In our judgment the Tribunal committed no error of law or analysis in coming to these conclusions. Its finding of fact that there never was an agreement is, in our judgment, unassailable on the correspondence. Indeed it is consistent with what the Claimant's own solicitor said in a letter dated 9/1/06 referred to in paragraph 29 of the decision. The Claimant sought to argue that there was a discrepancy as between the contemporaneous material considered by the Tribunal and the answers in the questionnaire on the identity of the matter in dispute. In our judgement this comes nowhere near establishing that the Tribunal was perverse in concluding as it did. The consequence of that for each of these claims was inevitable.[51]There was no error of law in concluding that clause 7 was not severable from the rest of the agreement, it was integral to it. The Claimant's argument to the contrary is misconceived. The fact that this inchoate COT3 agreement could not be made or implemented once the claim had been dismissed does not make clause 7 void. It is simply a consequence of the events as they transpired and underpins the argument that there was, indeed, never any agreement, no matter how close the parties had come to agreeing and no matter how strongly the Claimant may wish that there had been. It follows that all the grounds of cross appeal which seek to assert that the Tribunal erred in law in concluding that there was no settled agreement have no substance and must be dismissed.[52]The Claimant also complained of victimisation in respect of the handling of the grievance in respect of the settlement agreement. In relation to this particular aspect the Tribunal did consider the reason for the decision of Mr Gutteridge not to determine the grievance in his letter of 22 March 2006. They accepted his evidence that it was not because of the protected act but because the Respondent wanted to protect its position at that time in circumstances where the matter was the subject of external legal proceedings being conducted by legal representatives on both sides. In our judgment the Tribunal, having, on this occasion, asked itself the correct question and come up with the answer that it did consistent with the correspondence, did not commit any error of law in so concluding.[53]The second complaint of victimisation in respect of the grievance concerned a decision by a Mr Lomas not to hear the Claimant's grievance on 7 June 2006. Mr Lomas rejected her grievance on the basis that any complaint that she might have should be taken up with her own solicitors for failing to ask for an extension to the deadline the expiration of which on 4 January meant that her Tribunal claim fell. He was of the view that her complaint fell outside the scope of the grievance procedure, his understanding being that her grievance fell within the scope of the original litigation which had finished. Mr Lomas accepted in cross examination that this was incorrect on his part and that her grievance was within the Respondent's grievance procedure (para 60).[54]The Tribunal at paragraph 77 dealt with this particular complaint. They concluded that Mr Lomas was technically incorrect in refusing her grievance on the ground that he did, but they accepted, as a matter of fact, Mr Lomas's evidence that that was the reason, albeit mistaken, rather than any protected act. Accordingly they were bound, having asked themselves the correct question, to dismiss that particular claim of victimisation. The Claimant seeks to appeal that conclusion, effectively on the basis that, as Mr Lomas is head of HR, he was ultimately responsible for the grievance procedure and it was his responsibility to be technically aware whether the complaint fell within or outwith the scope of the procedure. She also argues that the two decisions, taken together, demonstrate a degree of bad faith which should have led the Tribunal to conclude that their subjective reason was to victimise her. She says that the Tribunal ought to have concluded that he must have been aware that he was acting in breach of the grievance procedure in rejecting her appeal and that it was perverse in not doing. In our judgment that is untenable. There is no error of law on the part of the Tribunal. It made a finding of fact about the bona fides of Mr Lomas's explanation, albeit erroneous, and that was an end of the matter. In our judgment there is no error of law or perversity on the part of the Tribunal on this issue.[55]The two remaining issues were complaints of victimisation in respect of the review and the appeal processes in July and August 2006 in relation to the dismissal of the Claimant. Those appeals were dealt with at paras 63 to 72 of the decision. The Tribunal concluded that there were no procedural defects with either of those hearings. Whilst they were insufficient to remedy the errors, which the Tribunal had found earlier in the process had been committed by Mr Sheridan, it does not necessarily follow that they were in themselves deficient so as to lead to a conclusion that the subjective reason for rejecting her review and appeal was to victimise her for the protected act. It is said by the Claimant that the Tribunal erred in law in that it misstated the evidence. She has taken us to passages in the evidence and to certain answers in the questionnaire but in our judgement they do not begin to establish either an error of law or perversity on the part of the Tribunal on this issue.[56]Accordingly we dismiss each of the grounds of cross appeal. Summary[57]In summary:[58]We uphold the appeal of the Respondent in respect of the finding of unfair dismissal on the grounds identified above and remit it to a differently constituted Tribunal for re-hearing.[59]We uphold the appeal of the Respondent against the finding of victimisation in respect of the decision to dismiss the Claimant by reason of redundancy on the grounds identified above and remit it to a differently constituted Tribunal for re-hearing.[60]We dismiss the Claimant's cross appeal in respect of all the other decisions by which the Tribunal dismissed her various complaints.