Sivagnansundarum v Whipps Cross University Hospital NHS Trust (Practice and Procedure : Appellate jurisdiction or Reasons or Burns-Barke) [2010] UKEAT 0388_09_2806

EAT
Sivagnansundarum v Whipps Cross University Hospital NHS Trust (Practice and Procedure : Appellate jurisdiction or Reasons or Burns-Barke)
[2010] UKEAT 0388_09_2806 · 2011-06-28
[1]This is an appeal by Mrs Sivagnanasundaram (“the Appellant”) from the judgment of an Employment Tribunal sitting at Stratford over 7 days in December 2008. The Appellant, who is of Sri Lankan origin and ethnicity, represented herself at the Tribunal; here, she has had the advantage of being represented by Mr Keith Bryant of counsel; the Respondent was represented both at first instance and here by Ms Claire McCann of counsel. We were told that at the end of the hearing the Employment Tribunal, which comprised Employment Judge Milmo QC, Mr Edwards and Mr Vaughan, delivered an oral judgment, which was recorded by dictating equipment. Given that there had been several days of hearing, this may be thought an impressive achievement and it was followed by a written judgment, sent to the parties and entered in the register on 2 February 2009; Ms McCann told us that it differs little from what had been said orally a few weeks before; in any event, it is that written judgment with which we are concerned in this appeal.[2]At the outset I wish to apologise for the delay in the preparation of this judgment. The case was the last in time of three cases heard last summer in which the issue of lack of reasons and a failure to comply with r ule 30(6) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 SI No. 1861 (“the Rules”) was raised in an acute form (the others were Greenwood v NWF Retail Ltd UKEAT/0409/09 and Jones v The City and County of Swansea UK EAT/0090/10). Judgment in Greenwood was delivered earlier this year; it attempts to deal with the issue in a comprehensive manner and judgment in Jones (delivered in early May) and the instant appeal have been delayed because of the time taken to reach a considered conclusion in Greenwood and, it also must be said, because of the nature of the judgment in the instant case and the root and branch examination of it by both parties to this appeal.[3]There were 4 conjoined cases; one (Case No 3202570/2006) alleged race discrimination (“the race discrimination case”); another (Case No 3203090/2007) alleged failure to supply correct particulars of the terms and conditions of employment (“the Part 1 case”) and unlawful deduction from wages (“the unlawful deductions case”); another (Case No 3201169/2008) alleged constructive dismissal (“the constructive dismissal case”); the fourth (Case No 3202418/2008) alleged victimisation contrary to section 2 of the Race Relations Act 1976 (“the victimisation case”). All four complaints were dismissed. The appeal, which has proceeded to a full hearing upon the direction of a division of this Tribunal comprising His Honour Judge McMullen QC, Mrs R Chapman and Mr A Harris on 16 December 2009, is against all adverse findings, save for the unlawful deductions case, which has not been appealed. The procedural history at the Employment Tribunal[4]There was a Case Management Discussion (“CMD”) in the race discrimination case on 8 October 2007 (see pages 103 -105) and paragraph 5 sets out 5 issues (then numbered 5.1 to 5.5: i) whether there was less favourable treatment of the Appellant on the grounds of her race during the process called “Agenda for Change”; ii) whether the Appellant had been placed in the wrong group by Agenda for Change and thus been subjected to less favourable treatment on the grounds of race; iii) whether the Appellant did not consent to, or was not consulted about, Agenda for Change and was thus subjected to less favourable treatment on the grounds of race; iv) whether placing the Appellant in band 6 was an act of less favourable treatment on the grounds of her race; v) whether the failure to respond to complaints made by the Appellant by e-mails and letters to the Deputy HR Director, the Radiology Manager, the Project Manager of Agenda for Change and the Diversity and Equality manager was an act of less favourable treatment on the grounds of race.[5]8 July 2008 should have been the first day of the hearing of the race discrimination case but by then Case Nos. 3203090/2007 (the Part 1 case) and 3201169/2008 (the constructive dismissal case) had been issued and, in effect, the hearing became a pre-hearing review. As a result two claims made in Case No 3203090/2007 (a redundancy payments claim and a victimisation claim) were dismissed but, as well as the unlawful deduction from wages case, which survived, it was decided that the Employment Tribunal had jurisdiction to consider what particulars should have been included in the contract of employment (the Part 1 case). The issues set out as paragraphs 5.1 to 5.5 (i.e. (i) to (v) at paragraph 4 above) were not affected by any of these subsequent developments. Later the fourth claim, Case No 3202418/2008, the victimisation case, was issued.[6]All four cases were set down for a hearing to start on 15 December 2008. In the immediate period leading up to the hearing there was considerable activity. A draft Schedule of Allegations, consisting of thirteen separate issues, was proffered by the Respondent. There was some initial controversy as to whether that Schedule was ever agreed between the parties. The Appellant’s position before this Tribunal was that she had never agreed it and that we should proceed on the basis that it was paragraphs 5.1 to 5.5 that formed the issues on the race discrimination claim. Ms McCann’s position was that it had been agreed at the hearing that it was to proceed on the thirteen issues but rather than further time being taken by this Tribunal asking the Employment Tribunal to clarify this position, she was content to proceed on the basis that the judgment covered all the issues raised by 5.1 to 5.5 in any event.[7]The draft Schedule handed to the Employment Tribunal at the start of the hearing is at pages 109 to 112 of the bundle (there appears to be duplication of pages 109 and 110). The schedule comprises a table setting out 13 different allegations; they are as follows: i) on 2 August 2005 the Appellant was wrongly placed in a group with radiographers, who were not managers, for the purposes of the Agenda for Change process, which was in reality a job evaluation; comparators were Jean Pinner, Steve Lovell and Louise Davis; this was on the grounds of race; ii) between July 2005 and August 2006 the Appellant’s consent was not sought about, and she was not consulted in relation to, the Agenda for Change process; this was on the grounds of race; iii) between July 2005 and August 2006, the Appellant was placed in Band 6, whereas the comparators at i) above were not; this was on the grounds of race; iv) between October 2005 and 19 September 2006 the Appellant’s complaints made by e-mail and letter were not responded to by David Grantham, Robert Griffith and Kim Lowe; this was on the grounds of race; v) between October 2004 and 24 April 2008 the payment by the Respondent to the Appellant of salary of £34,097.00 per annum instead of £36,320.00 per annum was an unlawful deduction from her wages; vi) between November 2006 and 24 April 2008 the Respondent failed to provide a statement of employment particulars and/or a statement of changes to employment particulars; vii) between 15 December 2006 and 24 April 2008 failed to provide the Appellant with assistance during her absence through illness, by:[1]not making home visits;[2]not referring her to occupational health services;[3]giving no assistance or advice about a to return to work in a less demanding capacity;[4]providing no assistance or information when the Appellant's sick pay entitlement expired;[5]failing to extend the Appellant's sick pay up to the date of the ET hearing;[6]not considering an application for temporary injury allowance;[7]not arranging a grievance meeting pursuant to an e-mail sent by the Appellant on 18 March 2008 to an HR manager, and not responding to that e-mail until 24 April 2008;[8]failing to take adequate action on the Appellant's request for Permanent Injury Benefit. viii) between 15 September 2006 and 15 December 2006 the comparator Robert Griffiths deliberately sabotaged the x-ray department at the Silverthorn Centre; ix) making the decision in November 2006 to close the x-ray department at the Silverthorn Centre, without discussing the reasons for closure, without consulting with the Appellant about that decision and thus making unilateral changes to the Appellant's contract of employment without providing a job description and a statement of employment particulars or a statement of changes to employment particulars; x) on 23 November 2006, 6 December 2006, 11 December 2006, 14 January 2007 and 24 January 2007 failed to respond to requests made by the Appellant for redundancy and/or early retirement; xi) between October 2004 and 24 April 2008 failed to pay the Appellant back pay under Agenda for Change; xii) between December 2007 and 24 April 2008, without holding a final review meeting, stopped the Appellant's sick pay; by contrast, a white radiographer was granted early ill-health retirement; xiii) between 25 June 2008 and 13 July 2008 failed to respond to grievances raised by the Appellant on those dates. The extent to which these 13 particulars travel the same ground as paragraphs 5.1 to 5.5 has been the subject of disagreement. The Appellant’s position was that paragraph 5.1 (whether the Appellant had been subjected to race discrimination by and during the Agenda for Change job evaluation process, the result of which she had never accepted) and paragraph 5.5 (whether there was a failure to deal with her complaints amounting to race discrimination) were not covered by the Particulars. The Employment Tribunal Judgment 8. The Appellant had worked as a radiographer in the National Health Service for the Respondent and its predecessor at Waltham Forest Health Authority from about 1985. In 1995, she went to work at the Silverthorn Centre, where she was the sole radiographer. The Employment Tribunal found her to have been “a competent and reliable radiographer”, who had given “many years of valuable service … to the Respondent and to the local community”.[9]The difficulties had begun in 2004 with the Agenda for Change process. This was a job evaluation exercise and some details of it are provided at paragraph 4 of the judgment of the Employment Tribunal. As a result of the application of that process to the Appellant's situation she was placed in Band 6. She regarded this as wrong; in her view she should have been placed in Band 7. She was running an x-ray unit on her own and so, she reasoned, she should have been ranked as equivalent to Superintendents running x-ray units elsewhere in the Trust and given the same banding.[10]The method adopted in the Agenda for Change evaluation process was to place similar jobs in a “cluster”. The Appellant was placed in a cluster of “Senior 1” radiographers; they were all graded as being Band 6 in August 2005. The Appellant objected and her situation was subject to an individual review on 30 March 2006 but the banding was not changed. She complained on the basis that her job description had never been revised and that there had been no check as to where she worked or what her responsibilities were and, consequently, she had been wrongly placed in the “Senior 1” radiographers cluster and been given an arbitrary and erroneous banding as a result.[11]In her letter of 13 June 2006 the Appellant appeared not to be pursuing her complaint about the unrevised job description; her other complaints were forwarded to a review panel. At a review panel hearing in August 2006, however, it appeared to the Employment Tribunal that she was attempting to revive her complaint about the job description (see paragraph 7 of the judgment at page 5 of the bundle). The Employment Tribunal found that the composition of the review panel was not in accordance with the guidance notes but because that had been due to a shortage of trained staff the Employment Tribunal accepted that the composition of the review panel did not invalidate its finding, which was to reject her complaints and conclude she had been correctly placed in Band 6 (see also paragraph 7 at page 6 of the bundle).[12]The Appellant did not accept the review panel’s conclusion. The Employment Tribunal summarised her subsequent objections at paragraph 8 of the judgment (page 6 of the bundle); reference was made to the markings set out at pages 16-20 of the Employment Tribunal’s hearing bundle. The Employment Tribunal also considered paragraphs 71 to 171 of the witness statement of Mrs Murphy, the Agenda for Change project manager, and heard oral evidence from her. That evidence was accepted (see also paragraph 8 of the judgment).[13]The Employment Tribunal also considered the comparators; two carried out managerial functions, which the Appellant did not, and so the Employment Tribunal decided that there was no valid comparison between the Appellant’s case and theirs. The third comparator was Louise Davis. Her case was examined in greater detail (see paragraph 9 of the judgment, also at page 6 of the bundle) but the conclusion was the same. This was because she had been given a higher score than the Appellant under the Agenda for Change process and because she worked in a different department (also paragraph 9). Another difficulty was that the Appellant’s profile could not be matched against national profiles (although it is unclear from the judgment whether that was considered at the time by management or something being advanced by counsel for the first time at the hearing).[14]As a consequence of the above findings, the Employment Tribunal concluded that the Appellant’s banding had been correct. The result was a finding that she had not been less favourably treated than others, which meant that her claim of race discrimination failed (see paragraph 12 at page 7 of the bundle).[15]The Appellant’s reaction to her banding was to refuse to carry out administrative duties. The response of her line manager, Mr Griffiths to that refusal was to suggest to her (copying the e-mail to others) that consequently she may need to be placed in an even lower band. Whilst expressing some reservations as to the wisdom of that course, the Employment Tribunal concluded that such a response did not amount to bullying.[16]The Appellant then raised a formal grievance. She did not attend the grievance meeting held on 7 November 2006. In her absence the meeting considered her allegations that her banding was incorrect, that this was on the grounds of her race and that she had been bullied by Mr Griffiths. All three grievances were dismissed but the letter communicating this fact contained what the Respondent contended was an error. It stated that her pay had been increased to £36,320.00 per annum. That was incorrect; it had been increased as a result of the Appellant being graded Band 6 to £34,097.00 per annum. The Appellant subsequently relied upon the former as the correct figure and this formed the basis of her unlawful deductions case. At paragraph 15 of the judgment at page 8 of the bundle the Employment Tribunal found this to be a simple error and, consequently, rejected the unlawful deductions case.[17]In July 2006, a paper had been circulated to an executive group proposing the closure on the grounds of cost saving, of the radiology departments at the Silverthorn Centre and at Forest Medical Centre. The plan was that the Silverthorn Centre, which was at Chingford, would close in January 2007. However, at an executive meeting held on 21 November 2006 that date was brought forward to closure with immediate effect. A few days before that executive meeting the Appellant was told that this was likely to happen and that she would be redeployed at the GP Unit with effect from 27 November 2006. In fact some time before this, a decision had been taken to store the Silverthorn Centre x-rays at Whipps Cross Hospital, which was some distance away. The Appellant claimed not to have been consulted about this. The Employment Tribunal noted that Mr Griffiths’ evidence was to the effect that he thought there had been a verbal communication about it but no specific finding appears to have been made (see paragraph 17 of the judgment at page 8 of the bundle).[18]The Appellant’s case was that this change was an act of deliberate sabotage by Mr Griffiths. The Employment Tribunal’s interpretation of it was that her allegation was of “an act of vengeance by Mr Griffiths against Mrs Siva” by making “this new arrangement about the filing and storing of x-rays taken in Silverthorn”, and that she thought he had acted in that way because of the Appellant’s “commencement in this Tribunal of Claim of race discrimination” (see paragraph 18 of the judgment at page 9 of the bundle). Having heard the evidence of Mr Griffiths, the Employment Tribunal rejected the allegation and concluded that the decision constituted “a sensible administrative arrangement” that was "in no way connected with Mrs Siva’s recently initiated race discrimination claim”, and the case of victimisation was “unsustainable” (see paragraph 18).[19]The Employment Tribunal accepted that there had been no discussion between the Appellant and the Respondent about the closure of the Silverthorn Centre x-ray unit. But the Tribunal rejected the allegation that the closure had been “deliberately and wilfully carried out … with total disregard to the procedure … no consultation and no consideration to my feelings”, as had been alleged by the Appellant in her ET1 form. There was an appreciation on the part of management as to how “unattractive and unwelcome the changes” would be. But public interest and safety was paramount, and the Appellant's feelings could not have priority over that consideration. The Tribunal found that the closure had not been an act of victimisation; such an allegation was "unfounded" (see paragraph 23 of the judgment at page 10 of the bundle).[20]As to the other allegations of victimisation, the Employment Tribunal thought that non payment of salary, as an instance of victimisation, was disposed of by the finding at paragraph 15 of the judgment that there had been a simple error as to the salary level. Other allegations overlapped with the constructive dismissal case. That left failures to answer requests for information and, as the tribunal described them, some “general accusations of neglect and victimisation” made against Dr Reading, Mr Griffiths, Mr Grantham, the director of HR, and Mrs Ahonkhai, an HR manager. As the Employment Tribunal put it, "most of them", gave evidence and the Tribunal's conclusion at paragraph 24 (see page 10 of the bundle) was that:
“None of them can be credibly accused of acting in bad faith or dishonourably towards Mrs Siva which would be the case if their actions concerning her were motivated by the fact that she had brought a discrimination claim against the Respondent. It may be that on some occasions information requested by Mrs Siva was not supplied to her. The reason may have been oversight, misunderstanding or some other form of maladministration. But in no case can we find any evidence that the underlying reason was that Mrs Siva had launched her discrimination proceedings.”
[21]The Appellant was absent through illness with effect from 21 November 2006. She never went back to work. She resigned on 24 April 2008 and alleged that she had been constructively dismissed. At paragraph 26 of the judgment, the Employment Tribunal sets out, as a series of bullet points, factual incidents or circumstances, which the Appellant relied upon either individually or collectively, as amounting to repudiatory breaches of contract. These are more or less a repetition of the eight allegations set out at paragraph vii) of the draft Schedule of Allegations quoted at paragraph 7 above. Her case is summarised thus at paragraph 26 of the judgment:
“This type of answer and the treatment destroyed the relationship of trust and confidence. I found it was impossible to continue any more correspondence with my employer. My last attempt to explain my situation was ignored and this treatment forced me to send my resignation.”
[22]Some of the events relied on by the Appellant were chronologically remote from the date of resignation but as the Employment Tribunal recognised at paragraph 32 of the judgment (see page 13 of the bundle), this was being put as “a last straw case”. The Employment Tribunal took account of the background against which these incidents occurred. Allegations had been made of direct discrimination and bullying, proceedings had been commenced and the Appellant was refusing to attend meetings. The Employment Tribunal thought the Appellant’s position was she would not come back to work until a different decision was made about her banding (see paragraph 27 of the judgment at page 12 of the bundle). Against that background the Employment Tribunal thought the Respondent’s acts and omissions to be understandable. The Employment Tribunal had some misgivings about the sequence of events leading to the letter of resignation and this led to doubts as to the Appellant’s credibility on what had prompted her letter of resignation (see paragraph 33 of the judgment at page 13 of the bundle). These misgivings notwithstanding, the Employment Tribunal went on to consider whether the resignation was provoked by breach of contract. It did not find any breach of contract in relation to the specific failure/refusal with regard to treating e-mail communication in March 2008 as amounting to a formal grievance (see paragraph 34 of the judgment at page 14). Nor when the matter was looked at more generally was the Employment Tribunal prepared to conclude that there had been a breach of any term as to trust and confidence; nor was the Appellant the victim of a conspiracy based on race leading to constructive dismissal (see paragraphs 35 and 36 at page 14 of the bundle).[23]There is a postscript to the decision. When ordering the matter to proceed to a preliminary hearing His Honour Judge Ansell posed some questions to the learned Employment Judge. The answers appear at pages 94 and 94a of the bundle. Mr Bryant observed that the Employment Judge does not make it clear whether he has consulted with the lay members or not before formulating the answers; we assume that he did. The learned Employment Judge says that issues 5.1 to 5.4 are dealt with at paragraphs 3 to 12 of the judgment; that the issue raised by paragraph 5.5 is dealt with by paragraph 23 of the judgment; that the Part 1 claim is dealt with “implicitly” by paragraphs 19 and 20 and that (see paragraph 3 of page 94):
“In the Tribunal’s view the Respondent was entitled under the existing contract of employment to change her work location from Silverthorn to Whipps Cross, and no varied or new particulars were required.”
The Appellant’s submissions[24]Mr Bryant’s over-arching submission was that the judgment of the Employment Tribunal was inadequately reasoned. In summary, therefore, this was really a Meek appeal (a reference to Meek v City of Birmingham District Council [1987] IRLR 250 ), although nowadays that should be expressed as an appeal based on a failure to comply with r ule 30(6) of the Rules because that now sets out the basic components of an Employment Tribunal judgment and failure to include those factors in a decision renders it unlawful. He accepted that rule 30(6) was not a “strait jacket” (see paragraph 25 of the judgment of Buxton LJ in Balfour Beatty Power Networks Ltd v Wilcox [2006] EWCA Civ 1240 ; [2007] IRLR 63 ) but, reminding us that this was a discrimination case, he referred us to paragraph 26 of the judgment of Sedley LJ in Anya v the University of Oxford [2001] IRLR 377 where he said:
“There is at least one further obstacle to Mr Underhill's stalwart defence of the industrial tribunal's decision. The courts have repeatedly told appellants that it is not acceptable to comb through a set of reasons for hints of error and fragments of mistake, and to try to assemble these into a case for oversetting the decision. No more is it acceptable to comb through a patently deficient decision for signs of the missing elements, and to try to amplify these by argument into an adequate set of reasons. Just as the courts will not interfere with a decision, whatever its incidental flaws, which has covered the correct ground and answered the right questions, so they should not uphold a decision which has failed in this basic task, whatever its other virtues.”
Even though amongst “its other virtues” might be the conclusion of a long-running dispute after a relatively extensive hearing this was, submitted Mr Bryant, “a patently deficient decision” and we should not shrink from saying so. The case of Kellaway v Chief Constable of the Thames Valley Police [2000] IRLR 170 relied upon by the Respondent was firstly a case about majority and minority judgments and the approach taken by this Tribunal in that case had to be understood in that context and secondly was not to be regarded as stating matters of general principle.[25]Compliance with rule 30(6) of the Rules meant that the Employment Tribunal was obliged to deal expressly with all live issues; if the Employment Tribunal concluded that an issue was not a live issue then that should be made clear. He accepted that a “narrative” form of judgment was not erroneous of itself but sufficient findings and reasons so as to show how the Employment Tribunal had reached the conclusion(s) had to be manifest in the judgment. In turn, that must mean the judgment should not be reconstructed by reference to cross referencing the evidence and arguments below to the judgment in order to make more of it than appeared on its face.[26]The second part of Mr Bryant’s general submission was that the Appellant had never agreed that the draft Schedule containing 13 particulars comprised all the issues that the Employment Tribunal needed to consider. He sought to demonstrate by reference to letter and e-mail correspondence passing between the parties shortly before the hearing that there had never been agreement from his client to such a course. Therefore what the Employment Tribunal should have proceeded upon were the ET1 forms and paragraphs 5.1 to 5.5 of the CMD analysis of the issues and it was unlawful for the Employment Tribunal to have considered any other material. We should also point out that in his reply Mr Bryant indicated, on instruction, that every aspect of the case had been vigorously disputed and put in issue by the Appellant at the hearing. In particular the Appellant disputed how the Agenda for Change process operated. We understood this to relate specifically to the issues about matching the national profile and the definition of and significance of management functions.[27]Against the background of those two general submissions Mr Bryant developed the following six specific points in the context of the race discrimination case. Firstly, so far as the race discrimination case was concerned, it was necessary for the Employment Tribunal to address each of paragraphs 5.1 to 5.5 and this had not been done. The judgment deals in terms with paragraph 5.4 but does not expressly refer to any of the other issues nor does the judgment suggest any reformulation of the issues nor explain why issues have not been dealt with. In the answer to questions raised by HHJ Ansell, the learned Employment Judge suggested that paragraphs 3 to 12 of the judgment deal with 5.1 to 5.4 (see page 94 of the hearing bundle) but Mr Bryant submits that only paragraph 3 is really addressing paragraph 5.4 and that is confirmed by consideration of the terms of paragraphs 11 and 12 of the judgment. These deal with the issue of banding, which, of course, is the subject matter of paragraph 5.4 but not of any of the other issues.[28]So Mr Bryant’s submission was that the Employment Tribunal had not dealt at all with paragraph 5.1. The Appellant’s general stance was she had never accepted the outcome of the job evaluation by signing it off. Specifically, she had never signed off an up to date Job Description for use in the Agenda for Change process and so the procedure was invalid. The job description had been prepared in 1989 and not updated since. That this was the position had been clear from both the Appellant’s evidence and from paragraphs 12 and 13 of the witness statement of one of the Respondent’s witnesses, Ms Kim Murphy (see page 116 of the bundle). Yet the Employment Tribunal had ignored this; paragraph 7 of the judgment did not deal with the Appellant’s contention and paragraph 8 was equally unsatisfactory.[29]Mr Bryant’s second specific submission related to the issue raised by paragraph 5.2. The allegation was that the Appellant had been incorrectly grouped for the purposes of the Agenda for Change job evaluation process. This had not been addressed at all by the Employment Tribunal; paragraph 5 of the judgment described this as “a procedural error” with nothing sinister about it. If that was meant to address paragraph 5.2 it was wholly inadequate reasoning.[30]The third specific submission related to the issue raised by paragraph 5.3, namely whether there had been a failure to consult with, or to seek the consent of, the Appellant as to the Agenda for Change process. Nothing in the judgment addresses this point and, even though, in effect, it is replicated by paragraph (ii) of the draft Schedule of Allegations, that iteration of the point is not addressed either. Although Louise Davis, a comparator, was dealt with at paragraph 9 of the judgment by saying that she had a higher score, there was no analysis as to why that might be so and paragraphs 7 and 10, which refer to the review panel but contain no examination of what was done by the review panel and instead conclude that because there was no match at the national profile level the Appellant could not be placed in Band 7, reasoning which conflates the relevant stages of the job evaluation process.[31]In his fourth specific submission, Mr Bryant accepted that paragraphs 11 and 12 of the judgment expressed a conclusion as to the issue raised by paragraph 5.4. He submitted, however, that because of the failures to address the other issues either at all or, in so far as they were addressed, with completely inadequate reasoning, the conclusions in relation to paragraph 5.4 cannot be regarded as based on any proper foundation.[32]Mr Bryant’s fifth specific submission related to the allegations of bullying against Mr Griffiths. These are to be found only in paragraphs 13 and 14 of the judgment and relate to events, which occurred after the alleged race discrimination, although it was convenient to consider the matter in relation to that claim. His complaint in this context is that whilst the Employment Tribunal has devoted two paragraphs to the topic (something he described as disproportionate), it is not clear from the judgment what the Employment Tribunal made of these allegations and what, if any, conclusion, was reached.[33]Finally, in the context of the race discrimination case, Mr Bryant submitted that the issue raised by paragraph 5.5 of the issues identified at the CMD, namely that there had been a failure to respond to and deal with complaints, had not been dealt with at all. It was important to recognise that this was not the same issue as that raised by paragraph (iv) of the draft Schedule of Allegations and so it could not be argued that dealing with the one included dealing with the other; anyway, that did not appear to have been specifically addressed either. Employment Judge Milmo has said in his answer to the Burns/Barke enquiry that it had been covered by paragraph 24 of the judgment but, submitted Mr Bryant, it was impossible to see how that could be correct. Paragraph 24 is about the victimisation case; it is not about the race discrimination case. It is therefore dealing with events that occurred after the time frame of the race discrimination case. Moreover, the Respondent’s acceptance that it had not been dealt with at paragraph 24 but had been disposed of by paragraphs 5 and 6 should not be accepted. Firstly that was not what the Employment Judge had said. Secondly, although paragraph 6 refers to 2 emails that is all it refers to; the complaint is much wider than that. In any event paragraph 6 contains no conclusion at all.[34]Mr Bryant’s submissions then turned to the other claims. So far as the Part 1 case was concerned, it had simply not been dealt with at all. The Burns/Barke answer suggested, or, rather, implied, that it had been addressed by paragraphs 19 and 20 of the judgment. If that were correct it would be an unsatisfactory way of dealing with the point but, in fact, those paragraphs do not begin to address the point. The last Part 1 particulars of the terms and conditions of employment are at page 229 of the bundle; they date from October 1989 and had never been replaced. Nothing said in the judgment or later explained why, at the very least, an award under section 38(2) of the Employment Act 2002 should not have been made.[35]So far as the victimisation case was concerned, the ET1 form at page 63 of the bundle made 7 points; of those, point 1, deliberate sabotage of the Silverthorn unit by not returning x-rays to it, had not been dealt with at all. The Employment Tribunal had accepted that the change of practice in relation to the filing and storage of x-rays taken at Silverthorn was a sensible arrangement not related to race discrimination. Paragraph 17 of the judgment had said that it was “possible that the timing of this change in practice was in some measure influenced by Mrs Siva’s refusal to carry out administrative duties.” Furthermore, Points 2 and 4 had been inadequately dealt with and Points 3, 5, 6 and 7 were not dealt with at all unless paragraph 24 could be regarded as directed towards them. But, in any event, this paragraph was inadequate as to findings, reasoning and conclusions. In particular there had been no adjudication on the terms of the letter on sick pay of 10 October 2008 (see pages 231 to 232), which had reinstated sick pay at half rate from April 2008.[36]Finally, so far as the constructive dismissal case was concerned, of the matters relied on in the relevant ET1 form (see page 60 of the bundle), the 8 points made at paragraph 35 of the judgment did not deal with either sick pay or the grievance. The Respondent’s submissions[37]In the context of the overarching inadequacy of reasons point, Ms McCann first drew our attention to Kellaway v Chief Constable of the Thames Valley Police [2000] IRLR 170 . Although at first sight the case might seem to be directed towards the problem posed by majority and minority judgments, its utility for present purposes lay in the fact that the submissions of the Respondent as to the inappropriateness of detailed challenges to the judgments of Employment Tribunals (see paragraphs 38 and 39 of the judgment at page 174) had been accepted by this Tribunal (see paragraphs 47 and 48 at page 175). In short this was “an overly forensic examination” being undertaken by Mr Bryant.[38]She relied upon the judgment of this Tribunal in Short v Hayman UKEAT/0379/08/CEA as support for the proposition that a decision may not be erroneous despite non-compliance with rule 30(6). Paragraph 60 of the judgment shows that despite non compliance with the Rule, there may be no error of law. In so far as paragraphs 24 to 27 of the judgment of Buxton LJ in Balfour Beatty Power Networks Ltd v Wilcox [2006] EWCA Civ 1240 ; [2007] IRLR 63 suggested that compliance with the Rule was a necessary requirement of a lawful judgment, the paragraphs were obiter dictum and the case itself demonstrated that provided the parties knew why they had won or lost, the judgment would be lawful.[39]Dealing with the specific points raised by Mr Bryant, paragraph 5.2 and paragraph (i) of the draft Schedule of Particulars really amounted to the same point, namely that the Appellant had been placed in the wrong grouping or “cluster point” for the purposes of job evaluation. The Employment Tribunal had specifically found at paragraph 5 of the judgment that she had not been misplaced. So far as the comparators were concerned the Appellant’s case had been that she managed a discrete unit but the Employment Tribunal had upheld the Respondent’s case that she did not really exercise management functions. In the third sentence of paragraph 9 (see page 6 of the bundle) the conclusion was that two of the comparators carried out managerial functions not carried out by the Appellant. That left the comparator Louise Davis. Her position was dealt with more discursively in the rest of paragraph 9 but there was a similar conclusion. She had a higher score than the Appellant in a number of “Factors” and that accounted for her ultimately higher grading. These were sufficiently clear and reasoned conclusions on that issue.[40]Paragraph (ii) of the draft Schedule of Particulars and paragraph 5.3 covered the same point. This had been dealt with by the Employment Tribunal in the fifth and sixth sentences of paragraph 5; the conclusion was that the Appellant had not been informed because she had refused to sign off her job description and, in any event, there had been no detriment because her case had been considered by the Agenda for Change review panel. Apart from the failure to inform the Appellant that she had been grouped with Senior 1 Radiographers, a failure which the Employment Tribunal describe at paragraph 5 of the judgment as having “nothing sinister behind it”, no criticism was made of the procedure and the Employment Tribunal had found there was nothing discriminatory about the procedure adopted.[41]Ms McCann’s submission as to paragraph 5.4 was that it equated to paragraph (iii) of the draft Schedule of Particulars. The Appellant’s case had been that placing her in Band 6 was less favourable treatment on the grounds of her race. But the Employment Tribunal had found at paragraph 5 of the judgment that the Appellant had been placed in Band 6 along with the rest of her cohort, had found at paragraph 9 that her comparators carried out managerial functions, which she did not and that Louise Davis had originally been placed in Band 6 by her line management, although she had successfully argued on appeal that she should be placed in the next Band.[42]Thus the Employment Tribunal had accepted the Respondent’s case that the Appellant had not really been a manager. Mr Bryant had not really advanced a perversity appeal and to resort to the detailed material, as he had done in his submissions, was to fall into the trap of “an overly forensic examination” of the case. Ms McCann asked us to note that Ms Murphy’s witness statement at paragraphs 86 to 92 (see page 129 of the bundle) had explained that although the Silverthorn Unit was a separate unit the Appellant was not accountable for it and so it was not being managed by her. The Agenda for Change process defined managerial functions as supervising somebody else and the whole process had been the subject of agreement between management and trade unions.[43]Paragraph 8 of the judgment must be read against that background. The Employment Tribunal’s conclusion was that the Appellant’s work had been scored justifiably. The last 3 sentences of paragraph 8 derive from and are an acceptance of Ms Murphy’s witness statement dealing with the job evaluation exercise between paragraphs 70 and 171. These describe in detail various factors and their application; in particulars factors 5, 6, 7, 11 and 14 are described in detail. The witness statement had gone into such detail in order to answer the Appellant’s case raised through the request for particulars at page 51B and the answers at pages 51D-H. These set out the Appellant’s case in detail and the witness statement represented the Respondent’s answers to it. Those answers exposed the misconceptions in the Appellant’s argument. The Employment Tribunal did accept, and had been entitled on that evidence to accept, both the correctness of the Respondent’s approach to scoring and the inevitable conclusion, which flowed from it, namely that she had been correctly banded and her argument as to a flawed process was unsustainable.[44]Moreover, the Employment Tribunal well understood that this was a national process. In fact there had been local evaluations in only 2 out of 3000 cases. Ms Murphy’s witness statement at paragraph 63 (see page 125 of the bundle) made clear that the Appellant’s work had to be matched to a national profile. “Radiographer Advanced” banding required an exact factor 2 match and in order to be within the “Radiographer Team Manager” cluster a score of 3 was required under factor 9. In fact the Appellant had not been an exact match under factor 2 and she had scored 1 under factor 9. Moreover, she had not complained about either factor 2 or factor 9. Therefore, it was perfectly sound for the Employment Tribunal to have accepted at paragraph 10 of the judgment that her job could not be matched to a Band 7 profile.[45]So far as paragraph 5.5 was concerned there was, at least, a degree of overlap with paragraph (iv) of the draft Schedule of Particulars. It should be noted that the Appellant herself had said the allegation against Mr Joyce was not pursued (see pages 109 and 110 of the bundle) and her case as to non response was against Mr David Grantham, Mr Robert Griffith and Ms Kim Lowe. Ms McCann accepted that the suggestion made in the Burns/Barke letter that this matter had been covered by paragraph 24 of the judgment could not be supported.[46]In fact the scope of the allegation related to the period from 5 April to 13 June 2006. This period had been considered by the Employment Tribunal at paragraph 6 of the judgment. There the Employment Tribunal had concluded that it had been correct for the Respondent to send the complaints made by the Appellant to the review panel. Ms McCann proffered an alternative proposition to that in the Burns/Barke letter. Either the Employment Tribunal had concluded that there had been a response, namely sending the complaints to the review panel, or, even if there was no express finding by the Employment Tribunal as to a response, there was overwhelming evidence that the complaints had not been ignored.[47]The Appellant had written on 5 April 2006 (see page 142) and the response had been to attempt to arrange a meeting between the Appellant, her trade union representative(s) and management (see page 160). A series of emails on 5 May 2006 left the position as being that the Appellant would not attend any meeting unless she was provided with the information that she required (see page 143). Between pages 146 and 144 (the email thread reads from back to front) there were emails about whether there should be an appeal process. On 13 June 2006 the Appellant lodged a formal complaint by letter and sent a copy by email on 21 June (see page 151). On 12 July 2006, Ms Lowe sent an email to the Appellant indicating that she was going to arrange an appeal (see page 151). The Appellant alleged on 14 July 2006 that she was being ignored (see page 155) and on the same day Mr Grantham replied to say that the matter was to be dealt with under an appeal procedure (see page 157). Then on 7 August 2006 the Appellant emailed Mr Grantham to say that she had had no reply. The following day Mr Grantham responded by saying that the Appellant needed to lodge an appeal (see page 157). On 9 August the Appellant replied to say that she was taking a case to the Employment Tribunal and on the same day Mr Grantham emailed her suggesting that she did not understand the process and would need to be re-assessed (see page 159). The review took place on 18 August 2006.[48]Ms McCann submitted that all this demonstrated that the Appellant had not been ignored. She may not have liked the outcome or the procedure adopted but there had been responses. This, submitted Ms McCann, takes us back to and underpins the finding in the last sentence of paragraph 6 that the Respondent had been correct to go through the review process.[49]Ms McCann accepted that paragraph 5.1 had not been included in the draft Schedule of Particulars. The Respondent had understood it to be an umbrella or general allegation. It has not been further particularised and it must be the inarticulate premise of her whole case. Although Mr Bryant had referred to matters not being dealt with these had never been specifically identified.[50]It was necessary in order to understand what had been raised and what had been dealt with to realise that the Employment Tribunal had used the term “banding” to mean both the process and the outcome; examples are paragraphs 4 and 6 where the term describes the outcome, paragraph 5 where it describes the process and paragraph 8 where it is used in both senses. So Mr Bryant’s submission that the judgment only ever deals with paragraph 5.4 collapses and once one recognises this dual meaning, paragraph 1 of the judgment can be seen not to be confined to paragraph 5.4 but also covers paragraphs 5.2 and 5.3.[51]Although the Appellant’s complaint about the inaccuracy of her job description had never been understood as a fundamental point, the Appellant had been cross examined about it and the findings made at paragraphs 7 and 8 of the judgment had been made against the background of the controversy having been ventilated at the hearing. But it should be understood that this had not been a contemporary allegation and had not been raised with the review panel. She had not complained about it in her first complaint letter of 6 April 2006 (see page 142). What she complains about in her email of 24 May 2006 (see page 143) is the person specification, which was never used in the Agenda for Change job evaluation and by the time of her second letter of complaint on 13 June 2006 her position was that the wrong person specification was in play but the job description was correct. Her case had always been that the correct job description had been used and therefore the findings at paragraphs 6 and 7 of the judgment cannot be challenged.[52]So far as the case of alleged bullying by Mr Griffiths is concerned, when the issues relating to the race discrimination case had been defined at the CMD this had not been identified as part of the race discrimination case and subsequently the Employment Tribunal approached it as a separate topic. That it was a separate matter and treated as such in the narrative is confirmed by the first sentence of paragraph 27. It is addressed at paragraphs 13 and 14 of the judgment. It had been raised by the further and better particulars at page 51F and consequently Ms Murphy answered it in her witness statement (see paragraphs 42 to 45 at pages 174 to 175). The issue was in sharp focus during the hearing because the Appellant had cross examined Mr Griffiths about it. Therefore, the Employment Tribunal had to deal with it and it was not a fair criticism that a disproportionate amount of time had been devoted to it. Paragraph 13 (from the third sentence to the end of the paragraph), Paragraph 14 (the first sentence) and paragraph 27 all conclude that there was no bullying.[53]In relation to the part 1 claim, Ms McCann accepted that it had not been dealt with in the judgment but points out that in the answer to the Burns/Barke request Employment Judge Milmo refers to paragraph 20 of the judgment, which he says implicitly deals with it. There the finding had been made that the Respondent had been entitled to require her to change her place of work (see also pages 225 to 229).[54]Victimisation (paragraph 6.2 Points 1 to 7 of the ET1 at page 63) was covered by paragraph (viii) of the Schedule of Allegations. It is dealt with by paragraphs 16 to 18 of the judgment (see pages 8 to 9 of the bundle). The reasoning is clearly set out in paragraph 18 and the Appellant’s complaint is unsustainable.[55]So far as paragraphs (ix) and (x) of the Schedule of Allegations are concerned, contrary to Mr Bryant’s submissions these had been briefly but explicitly dealt with at paragraph 24 of the judgment, which amounts to a finding against the Appellant on causation.[56]Paragraph 24 of the judgment also addresses (xi) of the Schedule of Allegations by reference back to the unpaid salary claim, which had been dealt with at paragraph 15 of the judgment, and by reference forward to the constructive dismissal claim. The final sentence of paragraph 30 of the judgment makes a finding that, after the expiration of the appropriate period, entitlement to sick pay ceased. This was dealt with in cross examination (see pages 230A and B) and the learned Employment Judge’s observations on those extracts from the notes at page 94B encapsulate the whole of this point when he writes:
“My notes also include this sentence: “[Claimant] accept[s] that failure to pay sick pay had nothing to do with victimisation” which might be interpretative of the last two questions and answers of the R’s notes relating to this issue.”
Moreover no evidence was given about any white radiographer having been granted ill health retirement (something which Mr Bryant disputed in his submissions in reply).[57]So far as paragraph (xiii) was concerned, the evidence about the email/letter of 18 March 2008 and the failure to reply appeared in the Appellant’s witness statement (see page 184 of the bundle). The Employment Tribunal deals with this at paragraph 34 of the judgment by finding that the manager had been acting reasonably in not treating the communication as a grievance. To this must be added the general finding at paragraph 24 that the Respondent had not acted in bad faith. It is against that background the allegation raised by paragraph (xiii) should be viewed.[58]In fact the Appellant gave no evidence at all about the letter of 25 June 2008; she did refer to the letter of 13 July 2008 in paragraphs 91 to 93 at page 186, although she does not disclose why it amounted to victimisation. She was cross examined; the Respondent’s notes appear at pages 234A to 234C of the bundle and the learned Employment Judge’s observations on those extracts from the notes are at page 94C. The Employment Judge noted that the Appellant had accepted in evidence that there had been a reply. Moreover, the Appellant had received the responses to her email of 13 June 2008 and her letter of 25 June 2008 to be seen at pages 235 to 238 and she had received responses to her letter of 13 July 2008 to be seen at pages 244 to 267.[59]The constructive dismissal case had been addressed by the Employment Tribunal as follows; at paragraph 25 of the judgment the Employment Tribunal directed itself that a serious or fundamental breach, of which conduct (that could comprise a series of acts) undermining the trust and confidence would be an example, causing the resignation was a necessary foundation of a constructive dismissal claim. Paragraph 26 of the judgment lists the incidents relied upon in the ET1 form. Paragraphs 27 to 32 analyse the facts and paragraph 33 reaches the conclusion that this was being put as a “last straw” case. Paragraphs 34 and 35 comprise a reasoned rejection of that case. Therefore, Ms McCann submitted, this was a perfectly reasoned decision complying with rule 30(6).[60]Stepping back from the detail of the individual points and looking at the judgment as a whole, whilst Ms McCann accepted, of course, that paragraph 26 of the judgment of Sedley LJ in Anya v the University of Oxford [2001] IRLR 377 represented sound advice to appellate tribunals and that striving to reconstruct insufficiently reasoned judgments from source material was just as much a vice as combing through judgments with a fine tooth comb in search of errors, here, however, the conclusions were not simply hanging in the air; on the contrary it could be seen that they rested on firm evidential foundations. Discussion and conclusions[61]This case comprised 4 separate sets of proceedings heard at the same time over a period of 7 days. The written reasons comprise 12 pages and the appeal bundle comprises just over 300 pages. None of that is unusual in terms of an appeal to this Tribunal. What is more out of the ordinary is that the oral argument occupied the time of this Tribunal for 2 full days. To an extent each party accused the other of what might be termed the parallel vices identified by Sedley LJ in paragraph 26 of his judgment in Anya ; Mr Bryant suggesting that Ms McCann was seeking to:
“… comb through a patently deficient decision for signs of the missing elements, and to try to amplify these by argument into an adequate set of reasons.” and, in turn, Ms McCann suggesting that Mr Bryant was seeking to: “… comb through a set of reasons for hints of error and fragments of mistake, and to try to assemble these into a case for oversetting the decision.”
[62]In fact, as will be appreciated from the above summary (albeit necessarily a long summary) of their extensive submissions, both conducted a detailed forensic examination not only of the judgment of the Employment Tribunal but also of other material, including documentary evidence, pleadings, witness statements, notes of evidence and the explanatory material from the Employment Tribunal. What makes this more remarkable is that this was not an appeal on the grounds of perversity. Mr Bryant eschewed that as a basis for his argument and we do not accept Ms McCann’s characterisation of his appeal as being in essence a perversity appeal. We do not think it can be said, however, to have been an “overly forensic examination” on either side of the argument.[63]What provoked it was the well intentioned approach of the Employment Tribunal to write a narrative of the hearing by gathering together overlapping points and disposing of them by making findings of general applicability, all set out in a judgment, covering the essentials without being prolix. Sometimes, however, an attempt at a reduction of numerous and apparently repetitive allegations and of the answers to those allegations to a manageable summary, raises as many problems as it solves. We repeat what was said by this Tribunal at paragraph 36 of the judgment in Jones v The City and County of Swansea UK EAT/0090/10:
“Like Buxton LJ in Balfour Beatty , whilst not wishing to fashion a “straitjacket” for Employment Tribunals, we think it would be easier (and certainly easier for this Tribunal in considering any appeal) to acknowledge the template provided by rule 30(6) at some point in a judgment rather than leave it to later scrutiny to assemble the components from the materials provided by a purely “narrative” judgment. But, in order to reach a conclusion on this point, this is what we must now do.”
[64]The overarching issue here is whether the judgment complies with rule 30(6) of the Rules but before embarking on the same task of scrutiny and assembly referred to in the above quotation, it is important to recognise that questions of compliance with the Rule involve considerations of relevance. Part of the previous paragraph of the judgment in Jones (paragraph 35) reads:
“The form of the instant decision is what is sometimes called “a narrative decision”
. The story is told, facts are set out, submissions are recorded and conclusions reached. On its face, there is no setting out of the issues and not all the factual disputes are resolved.”[65]Despite those apparent shortcomings when that judgment was scrutinised it seemed to the division of this Tribunal hearing that appeal that the judgment did comply with the Rule. We mention this simply as an illustration of the importance of relevance. Indeed the word “relevant” appears in each of sub paragraphs (a), (c) and (d) of rule 30(6). Only relevant issues need be identified and only the facts relevant to those issues need be identified and determined and, in turn, applied to the determination of those issues.[66]Having said that, we reject Ms McCann’s submission that it is not necessary to comply with rule 30(6) so long as the judgment tells a party why s/he or it has won or lost. I n Greenwood v NWF Retail Ltd UKEAT/0409/09 this Tribunal decided that a judgment of an Employment Tribunal must comply with rule 30(6) of the Rules and failure to do so would amount to an error of law. However, if, following the Court of Appeal’s decision in Balfour Beatty Power Networks Ltd v Wilcox [2006] EWCA Civ 1240 ; [2007] IRLR 63 , sufficient substance could be extracted from the decision so as to demonstrate compliance with rule 30(6), however, there would be no error simply because the structure of the Rule was not visible on the surface of the Employment Tribunal’s decision.[67]The relevant passages of Greenwood are paragraphs 52 to 63. Rather than add to the length of this judgment by recitation of them we will summarise their effect on the instant appeal. Firstly, paragraph 25 of the judgment of Buxton LJ in Balfour Beatty Power Networks Ltd v Wilcox [2006] EWCA Civ 1240 ; [2007] IRLR 63 is not obiter dictum; it forms part of his reasons, and those of Maurice Kay LJ and Sir Peter Gibson, who agreed with him, for deciding the appeal in the way it was decided. Secondly, the ratio decidendi of Balfour Beatty is that there must be both formal and substantial compliance with the requirements of rule 30(6) of the Rules; this is demonstrated by paragraphs 24 to 27 of the judgment of Buxton LJ (as well as by the judgments of the other two members of the Court). In so far as Short v Hayman UKEAT/0379/08/CEA can be read as suggesting that a decision may not be erroneous despite non-compliance with the Rule (and there is good reason for thinking it was not the intention of that division of this Tribunal that it should be read in that way), it should not be followed. Thirdly, although Buxton LJ offers sound advice to Employment Tribunals that the format of future decisions should disclose both formal and substantial compliance with each of the constituent parts of rule 30(6), if the substance of any constituent part can be unearthed from the judgment, there will have been compliance with it, the absence of formal structure notwithstanding. Fourthly, in this context the decision of the Court of Appeal in Meek v City of Birmingham District Council [1987] IRLR 250 will need to be considered when deciding whether there has been substantial compliance with the Rule.[68]Accordingly, we accept Mr Bryant’s first overarching point; if the judgment does not comply with the Rule, then he is correct that the Employment Tribunal fell into error. Before turning to each of the claims in order to examine the extent to which this point can be made good in those specific contexts, we need to mention his second general point that it was incumbent on the Employment Tribunal to cover all the ground in both the CMD issues and the draft Schedule of Allegations. Given that one of his major complaints was the Appellant had never agreed that the latter set out all the issues, we think we should be cautious about criticising the Employment Tribunal for not having articulated each aspect of each particular.[69]With that in mind we turn first to the race discrimination case. The Employment Tribunal identified the complaint of less favourable treatment to be the placing of the Appellant in Band 6, when by contrast with all others in the cluster she was running an x-ray unit and they were not. No up to date job description had been obtained and there had been no interview so as to enable her to explain her responsibilities and their significance. Paragraph 2 of the judgment explained the Agenda for Change process, paragraph 3 sets out the essence of her complaint, paragraph 4 explains why running an x-ray unit, of itself, was not sufficient to achieve a higher banding and paragraph 5 explains why the Appellant did not realise that she would be in the same cluster as the majority of radiographers. The history of her grievance is traced at paragraphs 6 and 7 and at paragraph 8 the Employment Tribunal accepts the Respondent’s explanation as to why the Appellant’s objections were misconceived. Paragraphs 9 and 10 deal with potential comparators and reach conclusions as to why their cases were different to that of the Appellant. Paragraphs 11 and 12 conclude that the Appellant had not been placed in the wrong band and, therefore, had not been less favourably treated so that her discrimination claim failed at the outset.[70]We cannot accept Mr Bryant’s submissions that paragraphs 3 to 12 of the judgment do not contain all necessary ingredients of compliance with rule 30(6). In our judgment the issues relating to less favourable treatment are identified, factual findings relevant to those issues are made and there is an explanation as to how, on those findings, the issues have been resolved against the Appellant. It might have been better if the Employment Tribunal had identified the issues in terms of those set out as a result of the CMD. Nevertheless, we accept Ms McCann’s analysis that the term “banding” has been used by the Employment Tribunal in two different ways paragraphs in 4, 5, 6 and 8 with result that both “process” and “outcome” are being covered there. So it seems to us sufficiently clear that the Employment Tribunal are addressing paragraphs 5.2, 5.3 and 5.4 (and for that matter paragraphs (i) to (iii) of the Schedule of Allegations, which we judge to cover the same ground) in paragraphs 3 to 12 of the judgment and we conclude that those paragraphs comply sufficiently with rule 30(6) for there to be no error of law.[71]The next question is does that mean, as Mr Bryant contends, paragraphs 5.1 and 5.5 have not been dealt with in the judgment? The former was a generalised allegation of discrimination. Did it cover anything more than the specific matters dealt with by paragraph 5.2, 5.3, 5.4 and 5.5? The only specific matter raised in the relevant ET1 form but not covered by those paragraphs (and, as it seems to us, paragraph (iv) of the Schedule of Allegations, which we regard as equivalent to 5.5) is the allegation of bullying by Mr Griffiths. But the Employment Tribunal devotes paragraphs 13 and 14 of the judgment to that matter; in essence bullying is dealt with at paragraph 13 and paragraph 14 deals with the treatment of her complaints as a grievance and so it seems slightly disconnected from the topic of bullying; we will return to it later.[72]Mr Bryant characterised this attention to bullying as disproportionate. This seems to us a harsh criticism; the allegation had been made in the ET1 form and although it was only part of the CMD issues in so far as it was subsumed in the generality of 5.1 (and not specifically raised by the Schedule of Allegations at all), the Employment Tribunal is beyond criticism for having addressed it. We reject Mr Bryant’s argument that no conclusion was reached. The passage clearly identifies the issue, makes a factual finding and explains why, therefore, the allegation of bullying was not accepted.[73]What is not dealt with in this part of the judgment under the sub heading of race discrimination is the issue raised by paragraph 5.5 (and (iv) of the Schedule of Allegations), namely the failure to respond to the Appellant’s email complaints. Because the ET1 was submitted in September 2006, what was at issue here was correspondence before that date. It seem to us difficult to regard paragraphs 3 to 13 as addressing whether or not the way the Appellant’s complaints were handled amounted to less favourable treatment on the grounds of race, although paragraph 14, which relates the decision to treat the Appellant’s complaints as a grievance, a process in which the Appellant ultimately did not participate, may have some bearing on it.[74]Ms McCann accepted that, contrary to what was suggested by Employment Judge Milmo in the response to the Burns/Barke request, paragraph 24 of the judgment did not appear to address the paragraph 5.5 issue. She pointed out that the period at issue had been considered in paragraph 6, where the Employment Tribunal concluded that the correct response to the complaints had been to send them to the review panel. She submitted that this amounted to a finding that there was no direct discrimination in relation to the correspondence. A finding that it had been dealt with by forwarding it to the review panel was a finding that there was no less favourable treatment and therefore no discrimination. Although Ms McCann did not refer to it, it might be argued that paragraph 14 makes a similar finding in relation to the institution of the grievance procedure in November 2006.[75]In the end we cannot accept that submission. It seems to us impossible to recover from either paragraph 6 or paragraph 14 a set of findings that dispose of the issue raised by paragraph 5.5 in a manner that would comply with rule 30(6). But the matter does not end there because Ms McCann had pointed us to the evidence as showing clearly, and she went as far as saying overwhelmingly, that, in fact, there had been a response. The factual matters she referred to are summarised above (see paragraph 47 of this judgment). We accept that they present a clear picture of response to the Appellant’s complaints and will return to this aspect of the case later in this judgment.[76]We turn next to the Part 1 Claim. Ms McCann accepted that this matter has not been dealt with by the Employment Tribunal. She reminded us, however, that Employment Judge Milmo referred to paragraph 20 of the judgment as impliedly dealing with this point. The relevant sentence of paragraph 20 reads:
“Her contract of employment in force at the time described the location of her place of work in the widest possible terms, effectively at any of the Trust’s units, and we accept the Respondent’s argument that the Respondent was acting within its contractual rights to ask Mrs Siva to work at Whipps Cross.”
The only document we can find in the bundle that might answer the description of being the “…contract of employment in force at the time” is the Schedule of Terms and Conditions of Employment, which is at pages 229 and 230. Paragraph 3 of that document, the “Normal Place of Employment or Base” has been completed as “Waltham Forest Health Authority”. But in our judgment the Part 1 issue is not answered either by paragraph 20 of the judgment or pages 229 and 230 of the bundle.[77]There have been several changes in the Appellant’s employment since 1989 but what needed to be recorded for the purposes of compliance with section 4(1) of the Employment Rights Act 1996 in the context of this case were the change in location from the Silverthorn Unit to Whipps Cross and, possibly, the change of name of the employer. We will need to consider what to do in relation to that when we consider disposal.[78]Mr Bryant’s other point on the Part 1 Claim is that there should be an award pursuant to section 38 of the Employment Act 2002 . But this only applies where an Employment Tribunal has found in favour of a Claimant in respect of proceedings listed in Schedule 5. Race discrimination, unfair dismissal, unlawful deduction from wages and breach of contract are all listed; Part 1 claims are not. So the Appellant must succeed in one of her other claims before section 38 can apply to her. We will also return to this when we consider disposal.[79]The Employment Tribunal devoted paragraphs 16 to 24 of the judgment to the victimisation claim. Mr Bryant submitted that the 7 points made at paragraph 6.2 of the ET1 form (see page 63 of the bundle) were either not dealt with at all or dealt with inadequately. Point 1 (also paragraph (viii) of the Schedule of Allegations, which we regard as equivalent to Point 1) relates to deliberate sabotage of the Silverthorn unit by not returning the x-rays. In our judgment this is dealt with in terms of factual findings by paragraphs 16 and 17 of the judgment (see page 8 of the bundle) and by paragraph 18 where the acceptance of the evidence of Mr Griffiths concludes the point with a finding adverse to the Appellant. We reject the submission of Mr Bryant that this was not adequately dealt with. We are acutely aware of the fact that motive may sometimes be irrelevant in victimisation but this is not such a case; “sabotage” must be a deliberate act of bad faith. But here the reasoning is clearly set out and the Appellant’s complaint cannot succeed.[80]Paragraph 6.2 Point 2 (also paragraph (ix) of the Schedule of Allegations, which we regard as equivalent to Point 2) relates to the lack of consultation as to the actual closure of the Silverthorn unit. It is specifically addressed at paragraph 23 of the judgment. Mr Bryant complains that the last sentence of paragraph 23: “We have no hesitation in finding that allegation to be unfounded.” is not an adequate explanation of an adverse decision in terms of rule 30(6) and that contrary to Ms McCann’s submission the passage from paragraph 24 quoted above (see paragraph 18 of this judgment and in particular, the last three sentences) where managers are acquitted of bad faith does not relate to this allegation but to others. Whilst it is correct that Mr Griffiths, the relevant manager, is not specifically acquitted of acting in bad faith in respect of this matter it seems to us that the only proper interpretation of paragraph 23, when read as a whole, is that it also derives from an implicit finding that the decision and the lack of consultation about it did not result from bad faith. In other words we accept Ms McCann’s submission that what is said at paragraph 24 must be read into and combined with paragraph 23 and the Respondent had established that the lack of consultation was not by reason of the Appellant’s race. When the two are combined, as we think they should be, the requirements of rule 30(6) are satisfied.[81]Ms McCann submitted that paragraph 24 of the judgment also addresses paragraph 6.2 Point 3 (also paragraph (x) of the Schedule of Allegations). She accepted that the paragraph is in general terms and that the specific correspondence referred to there is not addressed but these matters must be comprised within “a number of other complaints”. We have some hesitation as to this because the allegation refers specifically to redundancy and early retirement and paragraph 24 is in very general terms. But those referred to in this allegation are specifically mentioned in paragraph 24 and for that reason we conclude that it must be read as also disposing of that issue by a finding of lack of causation.[82]Paragraph 6.2 Point 4 (also paragraph (xi) of the Schedule of Allegations) is specifically addressed by the second sentence of paragraph 24. Mr Bryant submits that the reference back to the unpaid salary claim, which had been dealt with at paragraph 15 of the judgment, and by reference forward to the constructive dismissal claim, is not an adequate piece of judgment writing for the purposes of rule 30(6). We disagree. The Appellant knows that she lost on this point because her salary was misquoted and there was never any entitlement to the higher sum.[83]Paragraph 6.5 Points 5 and 6 (see also paragraph (xii) of the Schedule of Allegations) raise issues as to failure to review sick pay and a refusal to extend sick pay. Ms McCann points us to the final sentence of paragraph 30 of the judgment, which, albeit in the context of the discussion as to constructive dismissal, makes a finding that after the expiration of the appropriate period entitlement to sick pay ceased and submits that the brevity of the judgment on this point can be understood in the light of the evidence given. When one considers the Appellant’s answers in cross examination (see pages 230A and B) and the learned Employment Judge’s observations (quoted above at paragraph 54 of this judgment) it becomes clear that this was no longer an issue. Whilst Mr Bryant can still say that the matter should have been articulated in the judgment, the Burns/Barke process has added to the reasoning and the judgment is now clear; effectively this point was withdrawn by concession, which covers both the failure to review and the failure to grant an extension. In any event it seems to us that the failure to review is also addressed by the general terms of paragraph 24.[84]So far as Paragraph 6.5 Point 7 (see also paragraph (xiii) of the Schedule of Allegations) is concerned, the Employment Tribunal deals with this at paragraph 34 of the judgment by finding that the manager had been acting reasonably in not treating the communication of March 2008 as a grievance. This is, of course, in the context of the constructive dismissal case but Ms McCann submits that it also should be referred back to the victimisation claim and that the general finding at paragraph 24, namely the Respondent had not acted in bad faith, also bears on this issue. As to the later letter of 25 June 2008, Ms McCann draws our attention (see above at paragraph 56 of this judgment) to the fact that the Appellant gave no evidence at all about the letter of June 2008, although she did refer to the letter of 13 July 2008 in her witness statement without saying why it constitutes victimisation. She was cross examined and accepted that there had been a reply. Moreover, the Appellant had received responses to her email of 13 June 2008 and her letter of 25 June 2008 (see pages 235 to 238) and she had received responses to her letter of 13 July 2008 (see pages 244 to 267).[85]As with that part of the discrimination claim raised by paragraph 5.5 of the CMD issues, we accept that this analysis of the evidence presents a clear picture but again we cannot accept the submission that this cures inadequate reasoning. It seems to us that neither paragraph 24 nor paragraph 34 addresses this point adequately in terms of the requirements of rule 30 (6). As with our parallel conclusion at paragraph 75 above we will need to return to this aspect of the appeal.[86]Finally, we turn to the constructive dismissal case. Mr Bryant’s complaint in this context is that the Employment Tribunal did not deal at all or adequately with either sick pay or grievance. We do not accept that; the cessation of sick pay is referred to at paragraph 30 and the treatment of the potential grievance email is dealt with in some detail at paragraph 34. So it seems to us that they were dealt with and, bearing in mind the overall thrust of Mr Bryant’s submissions, the real complaint must be that the reasons for rejecting them are not properly explained in terms that satisfy the requirements of rule 30(6).[87]But that is not sustainable in our judgment for two reasons. Firstly, as a matter of factual detail, both paragraphs 30 and 34 contain enough material for the Appellant to be able to see the reasoning process that has led the Employment Tribunal to resolve those issues against her. Secondly, in any event to a large extent the submission is misconceived. What is at issue here is whether an accumulation of events could amount to a breach of contract. No doubt each allegation merits attention but the question in a “last straw” case, as the Employment Tribunal correctly characterised this case to be, is whether, taken as a whole, the previous history when combined with the last straw can lead to the conclusion that the resignation has been caused by a repudiatory breach of contract. The Employment Tribunal’s analysis starts with the impeccable self direction at paragraph 25, identifies, quite correctly at paragraph 26 (in an accurate synopsis of the ET1 at pages 59 and 60) what are alleged to be the components of the accumulation, considers the detail at paragraphs 28 to 30 and then examines the connection between the letter of resignation and those previous events at paragraphs 32 to 34.[88]Bearing in mind what we pointed out at paragraphs 62 and 63 above, namely that rule 30 (6) is about recording the disposal of relevant issues, where what is under examination is an accumulation of factual matters, it seems to us that there will not be an error so far as rule 30(6) is concerned if some matters in that accumulation are discussed in more detail than others and even, if some are not discussed at all. Obviously each case will depend on its own facts and if vital matters are not dealt with in terms of rule 30(6), then an error will have arisen but where, as here, some matters are given greater prominence than others in reaching a unitary conclusion such as whether there has been repudiatory breach of contract in most circumstances it will be very difficult to argue that a failure to focus in detail on one component gives rise to an error of law in the nature of inadequate reasoning. We do not accept that there was any error here. Disposal[89]We have identified three matters in respect of which the reasons are inadequate because the Employment Tribunal does not address the topics at all. These are paragraph 5.5 of the CMD issues in the direct discrimination claim, paragraph 6.5 Point 7 of the ET1 in the victimisation claim (also paragraph (xiii) of the Schedule of Allegations) and the Part 1 claim.[90]Paragraphs 5.5 and 6.7 Point 7 are similar and parallel allegations of failure to respond to the Appellant’s complaints in the spring and early summer of 2006, in the context of discrimination, and in the early spring and summer of 2008, in the context of victimisation. They also have in common that we have reached parallel conclusions, namely that they have not been addressed at all in the judgment but that in each case there is strong factual evidence to show that there were responses. It is more or less accepted by Ms McCann that the Part 1 claim has not been addressed in the judgment and that there had been a change in the Appellant’s place of work, if not also in the identity of her employer since the last particulars of terms and condition had been issued.[91]Can we save time and money by dealing with these matters now and thus, possibly, bring this litigation to an end? We think it would be in everybody’s interests were we able to do so. To that end we have considered the terms of section 35(1) of the Employment Tribunals Act 1996 , which reads:
“For the purpose of disposing of an appeal, the Appeal Tribunal may (a) exercise any of the powers of the body or officer from whom the appeal was brought, or (b) remit the case to that body or officer.”
[92]We have no hesitation in concluding that would give us the power to make a declaration as to the Part 1 matter if we could be clear that, as a result of the move from the Silverthorn Unit to Whipps Cross, the Respondent should have supplied amended particulars of terms and conditions of employment so that the location of her employment should be Whipps Cross and her employer be identified as the Respondent. The latter is a minor matter in any event but we cannot be sure that the finding at paragraph 20 of the judgment would dispose of the issue of change of workplace and so we will remit the Part 1 claim. We will deal with the question of an award pursuant to section 38 of the Employment Act 2002 below.[93]Unhappily, in relation to paragraphs 5.5 and 6.7 Point 7, much though we would like to dispose finally of those matters we feel it necessary to take the same course. We see the limit of our powers under section 35 as governed by whether, in order to reach a conclusion, we would have to make findings of fact. In our judgment, section 35 applies where all the findings of fact have been made; then the section empowers this Tribunal to reach a different conclusion on those facts. But that is not the situation here. Strong though the evidence of actual responses by the Respondent appears to be, to conclude that there had been such responses would be a finding of fact. In our judgment we have no jurisdiction to do that and these matters must be remitted to the fact finding body to reach a conclusion.[94]So far as section 38 of the Employment Act 2002 is concerned we have already observed that this is a pendant matter; it would only apply, if any part of the discrimination or victimisation or unlawful deductions or unfair dismissal cases were made out. Because one small aspect of the discrimination case and, likewise, one small aspect of the victimisation case remain to be resolved, we cannot deal with it and it will have to be remitted. In any event, because the section offers the possibility, albeit within a narrow range, of a variable award, we think for that reason also it would have to be remitted to the Tribunal, which had heard all the evidence in the case to decide where in the bracket any award should fall.[95]Given the narrow ambit of the matters requiring remission and to the fact that no further evidential findings are necessary there will be a remission to the same Employment Tribunal (i.e. comprising Employment Judge Milmo QC, Mr Edwards and Mr Vaughan) if that is possible. The remission will be so as to enable the Employment Tribunal to give reasons complying with rule 30(6) of the Rules on the issues as to whether there had been a failure to supply amended particulars (the Part 1 Claim), as to whether there had been a failure to respond to the Appellant’s correspondence starting from March 2006 and, if so, whether that amounted to direct discrimination of the grounds of race (i.e. the allegation made by paragraph 5.5 of the issues identified at the CMD) and, likewise, a failure to respond to the Appellant’s correspondence starting from March 2008 and whether that amounted to race discrimination by victimisation (i.e. the allegation made by paragraph 6.7 Point 7 of the form ET1 in Case No. 3202418/2008). When conclusions have been reached on those issues, the Employment Tribunal will be in a position to decide as to whether or not an award under section 38 of the Employment Act 2002 has been triggered. No evidence will be necessary. The parties are to submit written submissions to the Employment Tribunal within 8 weeks of the seal date of the order made as a result of this judgment.