MR D JOAO v MESH COMPUTERS PLC [2009] UKEAT 0529_08_0704

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2009] UKEAT 0529_08_0704

Case No Appeal No. UKEAT/0529/08

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR D JOAOAPPELLANT

MESH COMPUTERS PLCRESPONDENT

Before

Mrs Justice Cox Mr T Motture Mrs L Tinsley

Date 7 April 2009

For the Respondent MR G HOWARD (Consultant) Peninsula Business Services Ltd Litigation Department Riverside, New Bailey Street Manchester M3 5PB.

SUMMARY

PRACTICE AND PROCEDURE

Amendment

Appellate jurisdiction/reasons/Burns-Barke

Employment Tribunal refused Claimant's late application to amend to add the "label" of unfair dismissal to the facts already pleaded and when both parties had prepared evidentially to deal with an unfair dismissal claim. Claimant's appeal allowed.

Employment Tribunal's dismissal of Claimant's complaints of race discrimination and victimisation held not to be Meek compliant, given the extensive factual disputes and the brief, inadequately reasoned decision on a crucial issue in the case. Claimant's appeal allowed.

Claims all remitted for a fresh hearing.

THE HONOURABLE MRS JUSTICE COX

Our decision, having considered the parties' submissions, is that this appeal should be allowed and we set out in this Judgment our reasons for so finding.

This is the full hearing of the Claimant's appeal from a Judgment of the Bedford Employment Tribunal, promulgated with reasons on 10 April 2008, refusing his application to amend his second claim to add a complaint of unfair dismissal and dismissing his claims of direct race discrimination and victimisation.

In refusing to permit the amendment the Claimant contends, in his amended grounds of appeal, that the Tribunal erred in law, or made a perverse decision in the circumstances, which the Employment Appeal Tribunal should overturn. In dismissing his discrimination claims, the Claimant contends that the Tribunal erred in law in failing to understand the significance of what is said to be a material shift in the Respondent's position, and in failing to take into account, in assessing the credibility of the Respondent's witnesses, an important aspect of the Claimant's case. Alternatively, it is said that the Tribunal failed to give reasons for preferring the Respondent's evidence or to explain how they resolved a clear dispute between the parties on an important issue. In that sense, the Judgment is not Meek compliant or compliant with the authority of English v Emery Reimbold & Strick Limited

[2002] EWCA Civ 605

in relation to the adequacy of the reasons given.

The Respondent contends that the Tribunal were entitled to conclude that there was no unfair dismissal claim before them and to refuse the Claimant's application to amend made on the first day of the hearing. Further, the Tribunal decided the discrimination and victimisation claims on the basis of all the evidence they heard. They were entitled to find that the Claimant had not suffered any detriment and that there was no evidence from which they could infer that the Claimant had been less favourably treated than a comparator. There was no material change in the Respondent's case and the Tribunal's Judgment is adequately reasoned.

The Relevant Background

The Claimant is a man of black-African ethnic origin whose first language is Portuguese. He represented himself below but is legally represented before us today. The Respondent company manufactures and sells computers. The Claimant commenced employment with the company in April 2004, working within the Assembly Division of the production department. At the time of seeking employment, and soon after commencing his employment, the Claimant expressed an interest in being transferred to the Installation Division, which he considered better matched his experience and expertise. His Production Manager told him that there were no vacancies, but the Claimant alleged that three named comparators were given jobs in the Installation Division.

Over the following months the Claimant continued to make requests to the Production Manager, Doros Polydorou, to be transferred, without success. He raised a grievance which, he considered, was not properly addressed. By May 2006 he had still not been transferred and he considered that this was on the grounds of his race. On 16 May 2006 he submitted a claim to the Employment Tribunal alleging direct race discrimination, the first claim. On 22 May 2006 he was transferred to the Installation Division. In their form ET3 lodged on 12 June 2006, the Respondent denied race discrimination pleading, at paragraphs 3 and 6, that:

"The respondent placed the claimant on a waiting list and he had to wait until a vacancy arose. It is unfortunate that this may take a while but [installation] is a popular department to work in.

The respondent would like to make it clear that the claimant is currently working in the installation division of the Production Department, as he desired. Accordingly the claimant has no claim to pursue."

The parties attended a Case Management Discussion at the Tribunal on 18 August 2006 when the issues were identified and directions given for the hearing, which was listed by agreement to be heard on 7 and 8 November 2006. The first issue was identified as follows:

"Was there less favourable treatment on the grounds of the Claimant's race in the failure of the Respondent to move him from the assembly department to installation between June 2004 and 18 May 2006 (the date the Claim Form was presented), the Claimant being transferred to installation on 22 May 2006."

On 21 August 2006 the Claimant was instructed by Mr Polydorou to return to the Assembly Division where he stayed until, on 17 October 2006, he was given two weeks' notice of termination of employment. During that two-month period the Claimant was clearly in dispute with his employers about his return to Assembly work and the reasons for it. This led, ultimately, to a disciplinary hearing after which he was dismissed with effect from 30 October. Meanwhile, alleged delays by the Respondent in relation to disclosure had led the Claimant to apply for and obtain an Unless Order dated 29 September 2006. Alleged delays in relation to further disclosure and exchange of witness statements resulted in an order, dated 6 November 2006, in which the Tribunal directed as follows:

"The Respondents are ordered to submit to the Claimant within seven days of this letter, the further list of documents, in default of which the Unless Order will be confirmed, likewise, their witness statements within seven days.

You are reminded that you are professional representatives and that the Claimant is not, and you appear unable to comply with Tribunal orders which is neither helpful nor professional. If you continue to refuse then the Tribunal repeats that the Unless Order will be repeated."

We refer to that Order because it is of importance to the issues in this appeal that this Claimant below was at all times a litigant in person.

The November hearing date for the first claim was adjourned to 1 and 2 February 2007. On 19 December 2006 the Respondent's representatives, Peninsula Business Services Limited (PBS), forwarded to the Claimant copies of the Respondent's three signed witness statements. The Claimant had sent a copy of his statement to the Respondent in early November. These statements clearly addressed the issues arising in respect of the first claim.

On 9 January 2007 the Claimant submitted a further claim to the Employment Tribunal, the second claim. In this claim he ticked the word 'no' in answer to question 3.3 of the ET1 asking if his claim was about dismissal, and he identified his complaint at section nine of the form as being about, "Unjustified Demotion". However, he attached to the form a detailed three-page account of his complaints, which included the following at paragraph 13:

"When Mr Doros Polydorou, the Production manager told me to go back to Assembly division, I asked him what was the reason for me returning to assembly and for how long. He told me that one staff in assembly was missing and that he needed someone to cover, but he could not tell me for how long because he was not sure when the missing staff will be back and if the missing staff is not coming back is not sure how long will take him to recruit new staff."

Later on, at paragraphs 19 to 25, the Claimant set out his claim in the following terms,

"19. On 4 th September 2006 Kwado Boyeke, the staff who have been missing from assembly returned, but Mr Doros Polydorou, the Production manager did not tell me to go back to installation/configuration division.

20. On 25 th September 2006 new staff was employed in assembly division. The manager still not tells me to go back to installation or configuration division.

21. On 10 th October 2006 another new staff was employed in assembly division and the manager did not tell me to return to installation/configuration division.

22. On 17 th October 2006 I was given a two weeks notice of Termination of employment for being unable to build a 30 units computers per day.

23. On 30 October 2006 my employment was ended and the letter I wrote to the Company's General Manager on the 26 th August 2006 expressing my concern and informing the situation it has been not answered until today.

24. Taking into account what has happened between my employer and me since I was promoted to installation/configuration. I have concluded and strongly believe that I was sent back " Demoted " to assembly division because of my current claim for Race Discrimination to an Employment Tribunal against the Company. I have regarded this kind of treatment I have received from my ex-employer as a form of victimisation, since I believe the reason which I was sent back demoted to assembly division was not justified.

25. If this claim for unjustified demotion is successfully I would claim the following:

a) Compensation for being victimised

b) Compensation for loss of employment, including loss of earnings

c) Compensation for being humiliated

d) Compensation for injury to feelings"

Thereafter, events took a somewhat confusing turn. Notwithstanding the Claimant's tick-box indication that his claim was not about unfair dismissal, it appears that the claim was coded at the Tribunal as "UDL" signifying unfair dismissal. Further, on 22 January 2007 PBS wrote to the Tribunal referring to the Claimant as having submitted a further claim for unfair dismissal and suggesting that it duplicated the race discrimination claim and that the witnesses would be the same. They, therefore, sought an adjournment of the February hearing dates to enable the claims to be joined together and dealt with at the same time.

The Claimant opposed an adjournment by letter of 23 January in which he stated that the two claims dealt with different matters. The bulk of his letter dealt with his reasons for opposing the request for an adjournment but in the second paragraph of his letter he said this:

"I would clarify that the new claim that I have submitted on the 9 th January 2007 (case number 3300059/2007) is for Unjustified Demotion and not for Unfair Dismissal as the Respondent's representative letter has stated."

On 30 January 2007 the Employment Tribunal, on consideration of the papers, directed that the second claim should be struck out on the grounds that the Tribunal had no jurisdiction to hear a claim of Unjustified Demotion. The Claimant was given until 13 February to show cause why the claim should not be struck out. By his letter of 8 February the Claimant stated that his claim was in fact about victimisation but if the Tribunal could not consider this second claim he asked that it be considered as evidence of an existing course of conduct and, thus, as providing further details of his first claim.

On 20 February 2007 an Employment Judge considered the state of the papers and the correspondence and directed as follows,

"[…] that the case be coded as victimization on the grounds of the Claimant's race discrimination claim as well as unfair dismissal."

The Respondent was directed to respond in particular to paragraphs 16 to 25 of the second ET1. The Respondent had submitted an ET3 on 7 February 2007 in which they stated that:

"It is denied that the claimant was unfairly dismissed contrary to the provisions of the Employment Rights Act 1996. The claimant was dismissed on the grounds of conduct and it is contended that the said dismissal was fair in the circumstances."

Full particulars of the facts leading up to the Claimant's dismissal were provided at paragraphs 1 to 16. At paragraph 2 the Respondent pleaded as follows:

"On 22 nd May 2006 the respondent transferred the claimant to the Installation Division of the Production Department on a temporary basis. The claimant always knew that the move was temporary whilst the respondent was experiencing a quiet period. The claimant was placed back in the Assembly Division on 21 August 2006 once the quiet period had ended."

A detailed response to paragraphs 16 to 25 of the second claim was also submitted addressing and denying the complaint of victimisation. At paragraph 24 the Respondent stated:

"The claimant was not demoted by the Respondent because of his previous claim for race discrimination to the Employment Tribunal. The claimant was never promoted. The claimant has always been under the mistaken belief that a transfer from Assembly to the Installation division of the Production department was a promotion. The claimant was transferred to the Installation division of the Production department on a temporary basis and was fully aware of this fact. The Respondent totally denies victimisation."

It appears that in April the hearing was re-listed for 22 August 2007. Time passed and by letter of 13 August 2007 PBS wrote to the Claimant as follows:

"I am now in a position to exchange witness statements. Please inform me when you will be able to exchange witness statements. I appreciate that witness statements have previously been exchanged for Case Number 3314419/2006 but I have prepared amended witness statements to include your Unfair Dismissal and Victimisation Claims."

The author of that letter was Mr Howard, who has appeared in front of us today on behalf of the Respondent and who appeared for them below.

On 15 August 2007 PBS sent copies of the witness statements it relied upon to the Claimant. The Claimant received them and took photocopies but returned them to the Respondent by letter of 16 August due apparently to disagreements over the witness statements and preparation of the bundle of documents. By a letter dated 20 August to both parties an Employment Judge directed that the witness statements should cover all aspects of the parties' cases and that if any issues arose from late disclosure of statements after the deadline for exchange they would be dealt with at the outset of the hearing. It appears that the case was in fact postponed and finally re-fixed for 9 to 11 January 2008.

By a letter dated 19 November 2007 the Claimant wrote to the Respondent enclosing his "witness statements for victimisation and unfair dismissal claims" together with other documents that he wished to be included in the agreed bundle. In that letter the Claimant also referred to various factual disputes relating to the Respondent's procedures and reasons given for his dismissal. Pages 6 to 15 of the Claimant's witness statement dealt in considerable detail with the unfair dismissal claim and included an allegation at paragraph 41 that his employment had been terminated on 30 October 2006 without consideration having been given to an alternative position for him.

The Tribunal's Judgment

The hearing of both of the Claimant's claims was held on 9 to 11 January 2008 when the Claimant appeared in person and the Respondent was represented by Mr Howard. The facts which we have set out in this Judgment clearly indicate that the parties had prepared for this hearing on the basis that the Tribunal were to determine whether the Claimant had been discriminated on grounds of race, in not being transferred to the Installation Division until 18 May 2006 (the first claim); whether he had been unfairly dismissed in October 2006; and whether, in being moved back to Assembly in August 2006, he had been victimised (the second claim).

In their reasons, the Tribunal referred first to the need at the start of the hearing to resolve a dispute as to what issues were in fact raised by the two claims. At paragraph 1 they referred to the following,(a) the coding of the second claim in error as UDL, which was an administrative act and not a judicial act;

(b) the Claimant's own description of his claim as one of unjustified demotion and his indication by a tick at section 3.3 of the ET1 that his claim was not about dismissal; and

(c) the Claimant's letter to the Tribunal dated 23 January 2007 in which he stated in express and unambiguous terms that he had not made a claim of unfair dismissal.

They declared themselves satisfied that there was no such claim before them and stated as follows at paragraphs 1 – 2:

"On hearing our decision the Claimant sought to amend his claim to add a complaint of unfair dismissal. This would necessitate a postponement and thus incur a considerable waste in time and costs. The Claim would be out of time by a considerable margin. We have not granted the application today. We cannot bar a fresh claim at some future date and if the Claimant chooses, as he indicates to do so, it will fall to be addressed if and when that occurs.

The claimant accepts that we do not have a specific jurisdiction to consider unjustified demotion and confirms that this is a reference to the detriment that falls within his complaint of victimisation. We are not persuaded that dismissal is a further detriment under this head. The letter of grievance sent to the employer pre-dated the dismissal and referred only to unjustified demotion. In the aforementioned correspondence he refers again to unjustified demotion and he has identified the relevant evidence as being in the period 22 nd May 2006 to the 21 st August 2006 and thus prior to the dismissal."

The remainder of the Tribunal's Judgment deals with the discrimination and victimisation claims which raise discrete issues. We shall, therefore, deal now with the first ground of appeal relating to the unfair dismissal point. We add for completeness that in April 2008 the Claimant applied for a review of the Tribunal's decision on the grounds that the Respondent's witnesses had given untruthful evidence, which application was refused on 23 May 2008. Further, on 15 January 2008, four days after the hearing concluded, the Claimant did present to the Tribunal out of time a claim for unfair dismissal. At a pre-hearing review on 14 October 2008 the Tribunal held that there was no jurisdiction to hear it because it was reasonably practicable for him to have presented such a claim before 29 January 2007, his dismissal being effective on 30 October 2006, and the claim had not been presented within a reasonable period thereafter.

The Unfair Dismissal Ground

The point raised in relation to this ground of appeal is a short one. Mr Robson submits on the Claimant's behalf that the Tribunal misdirected themselves in concluding that the Claimant was seeking to add a wholly new claim for unfair dismissal rather than simply to re-label his second claim to allow this claim to be heard on the existing facts pleaded and the evidence which was already before the Tribunal. In those circumstances the Tribunal has a broad discretion to allow the second claim to be relabelled and the Tribunal erred in failing to consider this (see British Newspaper Printing Corporation North Limited v Kelly

[1989] IRLR 28222

CA). Had they considered the matter properly Mr Robson submits that they could only have permitted the amendment sought in the unusual circumstances of this case.

Mr Howard submitted there was no misdirection in this case. Whilst accepting that the Tribunal had a broad discretion to allow the claim to be relabelled, he contends that they were entitled to refuse the Claimant's application in this case for the reasons they gave, in particular given the Claimant's clear indications to the Tribunal both in his ET1 and subsequently in his letter of 23 January 2007 that he was not complaining about unfair dismissal. This was a Claimant whose documentation shows him to be an articulate individual who expresses himself lucidly and the Tribunal were, therefore, entitled to arrive at the decision they did. The Tribunal were clearly right to find that no unfair dismissal claim had been entered on the Claimant's second ET1 and that the Claimant had himself indicated on the form and subsequently in his letter of 23 January that his claim was about unjustified demotion and not about unfair dismissal.

We agree with Mr Robson, however, that these events have to be considered in the context of a Claimant who was, at all times, acting as a litigant in person and who had not had the benefit of legal advice until he first appeared in this Appeal Tribunal. Whilst it is clear from the documents and correspondence that we have read that he is an educated man whose letters are lucidly expressed, it is important to remember that this does not automatically translate into an ability to understand Employment Tribunal procedures, time limits and the significance of assigning titles to the claims to be pursued.

A degree of caution is required in our judgment in assessing a late application to amend in such circumstances, in particular when, until the first day of the hearing, both the Employment Tribunal and the Respondent had proceeded on the basis that the Claimant's complaints did include the claim which he sought formally to add by way of amendment. We consider that insufficient regard was paid to these factors by this Tribunal in the unusual circumstances which prevailed in this case.

Notwithstanding the Claimant's indications to the contrary referred to, we note that he also completed section 5.2 on the ET1 (section 5 requires completion only if the claim is for unfair dismissal) indicating that he was not a member of the employer's pension scheme. In his 3 page statement of complaint attached he expressly claimed compensation for loss of employment including loss of earnings at paragraph 25. Indeed, he set out at paragraphs 19 - 25 the factual basis for a complaint of unfair dismissal. Further, his witness statement dealt in detail with all the facts relevant to a claim of unfair dismissal on pages 6 - 15, as did the witness statements served on behalf of the Respondent.

It is not surprising, given the substantive complaints particularised in his ET1, that the Employment Judge directed that the case be coded as a victimisation as well as an unfair dismissal complaint on 20 February 2007; and it is not surprising, given that direction, that PBS responded in their letter of 22 January 2007 that they were facing an unfair dismissal claim and resisted it on this basis in their ET3.

We agree with Mr Robson that the Tribunal appear to have regarded the Claimant's amendment application as an application to add an entirely new claim for unfair dismissal rather than, as we consider, an application to allow the substantive facts already pleaded to be relabelled formally as a claim for unfair dismissal. In this, we consider, the Tribunal misdirected themselves and failed to have regard to relevant factors in exercising the broad discretion that they had in considering the matter.

Further, their reasoning at paragraph 1 that amendment would necessitate a postponement was, in our view, erroneous. The case had been listed for hearing and prepared by both parties on the basis that a claim for unfair dismissal was before the Tribunal. All the evidence necessary for determining a complaint of unfair dismissal was before them and, in our view, no postponement would have been necessary. Further the Tribunal erred, in concluding that a claim of unfair dismissal would be "out of time by a considerable margin". For the purposes of the amendment application, the claim was not out of time, see Home Office v Bose

[1979] ICR 481

at 487F and Ashworth Hospital Authority v H J L Liebling [1997]

EAT/1436/96

(unreported) where, at page 7, the EAT said as follows,

"As is noted in the "White Book" at page 359 Vol. 1 of 1997 Supreme Court Practice the guiding principle of cardinal importance on the question of amendment is that generally speaking all such amendments ought to be made "for the purpose of determining the real question in controversy between the parties to any proceedings or of correcting any defect or error in any proceedings". Secondly where there is a new claim that is being advanced then the question as to the exercise of discretion will be affected by a consideration as to whether the amendment adds or substitutes a new cause of action arising out of the same facts, or substantially the same facts, as those in respect of which relief had already been claimed in the action."

The clear principle emerging from the cases, in our view, is that if a new claim arises out of facts already pleaded, it should not be subject to the same rigorous scrutiny in respect of relevant time limits. We observe that in any event the Claimant had had no cause to apply for an amendment before the hearing because both parties had proceeded on the basis that a claim for unfair dismissal was going to be determined. We agree with Mr Robson that in these circumstances no prejudice would have been caused to the Respondent by granting the application since the Respondent had proceeded on the basis that they were meeting a claim for unfair dismissal. As Mr Howard fairly accepted the Respondent did not object to the Employment Judge's order of 20 February 2007 that the Claimant's second ET1 be coded as including one.

For these reasons in our judgment the Tribunal erred in refusing the application to amend. We conclude that, if properly considered, the application could only have been granted, that is the Tribunal could only have exercised their discretion in favour of the Claimant on the facts of this case. We shall therefore allow the appeal on this ground and substitute an order granting the application.

We turn therefore to deal with the discrimination and victimisation claims. The Tribunal's findings of fact and conclusions are shortly stated in paragraphs 4 to 8 of the reasons. At paragraph 6 in relation to the Claimant's transfer the Tribunal found the following facts,

"On the 20th March 2006 the Claimant wrote to Mr Riccardi the General Manager (P46 - 51) again complaining about the Respondent's failure to place him in the installations department. Albeit not the principal thrust of the letter it does contain an allegation of discrimination and it is not disputed that it satisfies the requirement of a protected act for the purposes of the victimisation claim. His complaints were investigated by Mrs Dawson and her findings are set out at Page 52. She told him that there were no vacancies in that department at present but that his interest would be noted by putting his name on a list. On 22 nd May 2006 an opportunity arose to give him experience on that department. It was a quiet time of year and it is the Respondent's practice to undertake staff training at times when production pressures were lower. He and other staff who also moved were informed that the arrangement was temporary. We note that it was to the Claimant's benefit since the experience enhanced his opportunity of transferring there if a permanent vacancy arose. He stayed there until August 2006 when production pressures and a shortage of assembly staff dictated that he return to the assembly department. The Claimant responded to this news by putting down his tools and refusing to work. He was asked to go to the canteen where Mrs Dawson spoke to him privately. Whereas he did return to the assembly department he consistently failed to meet his daily targets and was observed by his employers reading newspapers and remaining idle when work needed to be done. Ultimately this led to a disciplinary hearing in October."

Their conclusions were expressed as follows:

"7. …We are entirely satisfied on the evidence before us that the transfer of the Claimant back to the assembly department from his secondment to the installation department was not a demotion and it did not amount to a detriment to him. He knew the assignment was temporary from the outset. We are satisfied that in respect of the alleged disparity in wages the differential rate of pay between the Claimant and his comparators arises from their different circumstances and their greater skill and experience not the mere fact that they were working in the installation department. At the time of his engagement by the company the Claimant was clearly informed of the nature of the job that he had been offered and chose to take it. He had been told that a move within the unit was possible depending on opportunity and his own endeavours and when that opportunity arose the Respondents took steps to assist him to achieve that ambition.

8. There is no evidence before us from which we could infer that the Claimant had been less favourably treated than a comparator. The Claimant was treated entirely in accordance with the terms and expectations given to him when he decided to enter the Respondent's employ. There is no evidence of anyone being treated more favourably."

On this basis the Tribunal dismissed the claims of race discrimination and victimisation.

The Appeal

Mr Robson submits, essentially, that the Tribunal erred in failing to consider the implications of what he says was a material change in the Respondent's case in response to the second claim. Importantly, there was a change in the evidence of Mr Polydorou, as appeared in his witness statement relied on at the hearing. Alternatively, he submits that the Tribunal failed, given this evidential dispute on an important issue in the case, to give adequate reasons for their decision to accept the Respondent's evidence and reject the Claimant's and to find against him in relation to these claims. The Judgment, therefore, fails the test of compliance with Meek and English v Emery Reimbold .

Mr Howard submits that the Claimant was well aware of the Respondent's case in response to his second claim from the ET3, and from the witness statements served on him in August 2007, including that of Mr Polydorou. The Tribunal decided the case on the basis of all the evidence they heard and their findings of fact and their reasons whilst not being extensive are sufficiently clear. The appeal should therefore be dismissed.

The starting point in our view is the Claimant's case on victimisation. It is clear from the detailed particulars served with his ET1 that he was alleging that his move to Installation had occurred only after he had complained of racial discrimination and that he had understood his move there to be a permanent one. He was then moved back to Assembly Division when other employees, who had not carried out a protected act, were not. At paragraph five of his witness statement he stated as follows,

"I believe the reason I was transferred to installation/configuration is to try to stop me from making a complaint to an Employment Tribunal against the company. Nevertheless, my transfer from assembly to installation was permanent and not temporary. There have never been temporary transfers from assembly to installation/configuration. All transfers to this area are permanent. People such as Paul Davis, Vahid Jalali and Homayoun Najian who I named as comparators on my claim for Race Discrimination were all transferred to installation on permanent basis."

The temporary or permanent nature of the Claimant's move to Installation was, therefore, an important issue in the case, in particular in the Claimant's case on both race discrimination and victimisation. We agree with Mr Robson that his victimisation complaint would have been considerably weakened if it was shown that his transfer to Installation had only ever been a temporary one and that he knew it to be such.

In their first ET3 we agree that the Respondent said nothing expressly as to the temporary or permanent nature of the Claimant's move to Installation. We consider, however, that the statements that the Respondent placed the Claimant on a waiting list, that he had to wait until a vacancy arose, that Installation is a popular department to work in, and that the Claimant is currently working in the Installation Division, as he desired, give the reader no basis for supposing that the Claimant's move to Installation was merely temporary and that the Claimant knew it to be temporary. In his first witness statement, served for the purposes of the first claim, after dealing in detail with events leading up to the Claimant's transfer, Mr Polydorou said this at paragraph 26:

"On 22 nd May 2006 I transferred Mr Joao to Installation before the Respondent became aware that he had submitted a claim to the Employment Tribunal. The Claim was received by the Tribunal on 18 May 2006 but the Respondent did not become aware of the Claim until the Claim was received from the Employment Tribunal by the Respondent on Friday 26 th May 2006."

In denying the Claimant's allegation that the refusal to transfer him before May 2006 was racially discriminatory, Mr Polydorou emphasised at paragraph 28 that:

"[…] a transfer from Assembly to Installation within the Respondent is not as of right or automatic and is dependent upon several factors including performance, aptitude and capability. Paul Davis, Vahid Jalali and H. Najain were transferred to Installation for the reasons mentioned. Black Africans and/or Black Afro Caribbeans had worked in Installation during the period of Mr Joao's employment."

In answer to the Claimant's allegations Mr Polydorou listed a number of points at paragraph 29, the fourth one of which stated,

"On 22 nd May 2006 I transferred Mr Joao to Installation."

There was no reference in either paragraph 28 or 29, or indeed in paragraph 26, to the Claimant's move to Installation being only a temporary one and that the Claimant knew it to be such.

At the Case Management Discussion there would appear to have been no suggestion at that stage that the transfer was a temporary one, given the way that the first issue was defined as we have set out earlier in this Judgment. There is some scope for suggesting that the picture seems to have changed, however, in response to the second claim when, as set out above, the Respondent pleaded at paragraph 2 of the ET3 that this Claimant had been transferred on a temporary basis and that the Claimant always knew that the move was temporary whilst the Respondent was experiencing a quiet period.

There is a dispute between the parties as to the witness statement from Mr Polydorou that was actually served on the Claimant by letter of 15 August 2007. The Claimant states that it was that which appears at pages 91 - 94 of our first bundle of documents, which is a short 3-page statement of 13 paragraphs headed "Unfair Dismissal and Victimisation" and which has no formal front page identifying it as the witness statement of Mr Polydorou, although it has his signature on page 94 and is dated 14 August 2007.

The Respondent contends, and Mr Howard has provided a sworn statement setting out the chronology, that on 15 August 2007 they served a combined statement containing paragraphs 1 - 29 of Mr Polydorou's first witness statement, relating to the first claim, and then 13 separate paragraphs, numbered 1 to 13, on pages 9 - 12 relating to the unfair dismissal and victimisation claims. The Respondent has drawn attention to what appears to be different page numbering in the 13-paragraph statement at page 91 of the first bundle and suggests that the statement seems to have been tampered with. This is denied.

However, in view of the approach we have taken to these grounds of appeal, and the clear conclusion that we have formed, it is unnecessary for us to seek to resolve this dispute between the parties which would, in any event, be one which it would be difficult for us to resolve on the present state of the papers. As it seems to us in the 13-paragraph statement at page 91, which the Claimant accepts that he had, Mr Polydorou said this in relation to the Claimant's move to Installation and then his move back to Assembly:

"1. Between 22 nd May and 21 st August 2006 Mr Joao worked in Installation. May, June and July are always the quietest times of the year for the Respondent and we therefore used the opportunity to move operatives to other departments to train them in other skills. This is standard practice every year. Mr Joao was transferred to Installation. Rupesh Patel was transferred to the Warehouse which was manual work compared with Installation. Both were informed before they moved that due to a lack of orders I would have to move them temporarily to other departments. Other people in Installation/Q.C were also moved to other departments.

[…]

5. On 21 st August 2006 I had a discussion with Mr Joao and asked him to go back into Assembly. I explained to him that since we were now getting busier and we were short of assemblers he would have to go back into Assembly to make up the shortfall. Rupesh had previously moved back already. I fully explained to Mr Joao the reason why he had to return to Assembly. I did not tell him one staff only was needed. It was not a matter of cover. No one was missing. He and Rupesh were required to move back to make up the full complement of assemblers. There was no need to recruit staff. In any event the Respondent did not have the budget to recruit any new staff."

In the combined statement relied on at the hearing at paragraph 29 Mr Polydorou now said this:

"On 22 nd May 2006 I transferred Mr Joao to Installation for training. I could've transferred him to the Warehouse area, Stores or Despatch for manual or labour-intensive type work."

Whatever the position regarding the Claimant's receipt of the combined statement before the hearing it should have been plain to the Tribunal at the hearing, (1), that the nature of the Claimant's transfer to Installation was of considerable importance to the Claimant's case, both in relation to race discrimination and victimisation; (2), that there was a substantial evidential dispute as to this in circumstances where the Claimant considered there had been, or may have been, a shift in the Respondent's position evidentially from that adopted in response to the Claimant's first claim, although that was disputed; and (3), given that the Claimant was a litigant in person, care was needed to ensure that attention was given to this conflict during the hearing and that an adequately reasoned decision for the Tribunal's determination was provided.

In this task, in our view, the Employment Tribunal failed. They failed in particular to explain satisfactorily the manner in which this crucial issue was resolved so as to enable this Appellate Tribunal to understand why they concluded as they did at paragraphs 6 to 8. The transfer on 22 May 2006 is dealt with in the briefest of terms in paragraph 6 and the complaints of race discrimination and then of victimisation appear to have been somewhat rolled up in paragraph 7 in reasoning which, in our judgment, lacks clarity. Importantly there is no clear identification of the nature of the factual dispute, the importance of it to the Claimant's case and the reasons for the Tribunal's determination of the matter in favour of the Respondent.

In circumstances where there were two conflicting accounts on an important issue in the case, we cannot be confident that the Tribunal properly addressed that conflict or understood its significance in the case. Mr Howard fairly accepted that the Tribunal's reasoning was not extensive but, in our judgment, it fails adequately to explain to this Claimant and to us why he lost his claims of both race discrimination and victimisation.

We add, by way of general observation, that we were in any event concerned by the shortness of the reasoning, in a case which had lasted some three days. We note in particular that although this was a claim for racial discrimination there is no reference even to the Claimant's ethnicity. The succinctness of the factual findings on what were clearly extensive factual disputes and the brevity of the conclusions expressed in paragraphs 7 and 8 support our conclusion for the reasons given that this Tribunal fails to meet the standard for adequacy of reasons.

The appeal is therefore allowed and the matter must, therefore, be remitted to a fresh Employment Tribunal for the Claimant's claims, including the claim of unfair dismissal, to be determined.