Ugiabe v Tower Hamlets Primary Care Trust (Race Discrimination : Direct) [2012] UKEAT 0137_12_0905

EAT

Ugiabe v Tower Hamlets Primary Care Trust (Race Discrimination : Direct)

[2012] UKEAT 0137_12_0905 · 2013-05-09

[1]This is an appeal from the judgment of an Employment Tribunal comprising Employment Judge Goodrich, Ms O’Flynn and Dr Dungu sitting at East London Hearing Centre over 15 days in May 2011 and deliberating for a further 5 days between June and October 2011. The written judgment and reasons were sent out to the parties on 14 November 2011 and amount to some 49 pages. The outcome was that Mr Ugiagbe’s complaint of race discrimination succeeded in part and as a result of both he and his former employer, Tower Hamlets Primary Care Trust, have filed Notices of Appeal. In effect these crossed in the post and so, rather than an appeal and a cross appeal, we have before us two appeals. We will refer to Mr Ugiagbe as the Claimant and to Tower Hamlets Primary Care Trust as the Respondent. The Claimant has represented himself and the Respondent has been represented by Ms Ingrid Simler QC. The history of the proceedings

[2]As the Employment Tribunal points out in its judgment this is a case which has “a lengthy history”. The claims were issued in March 2007 (unfair dismissal and race discrimination) and June 2007 (also allegations of race discrimination). This second claim was issued because the race discrimination in the first claim was rejected by reason of the statutory grievance procedures not having been complied with. The cases were heard in 2008. The Claimant succeeded on his unfair dismissal case and also on part of his race discrimination case. There was an appeal to this tribunal by the Respondent against the findings in the race discrimination claims but there was no appeal against the finding of unfair dismissal and no cross appeal by the Claimant in relation to the race discrimination allegations, which had failed. The Respondent was successful on appeal to the extent the race discrimination allegations were remitted to be reheard by a differently constituted Employment Tribunal. The last two sentences of the judgment of the Employment Appeal Tribunal read:

“It goes without saying that the Tribunal will only be considering the complaints which have been the subject of this appeal. It will not be open to the Tribunal to reconsider the fairness of Mr Ugiagbe’s dismissal or the complaints of race discrimination which the Tribunal dismissed.”

Subsequently a controversy arose as to the scope of the remission and as to what was open for argument at the rehearing. This resulted in a note from Keith J, who had presided at the appeal, clarifying the issues (see pages 256 and 257 of the appeal bundle). Paragraph 3 of that note has led to some debate and has been referred to and quoted more than once in the material before us. This is surprising to us because we would have thought its terms were clear. It is best considered in full [1] :

“Mr Ugiagbe’s solicitors say in their letter of 29 July that the fact that the rehearing will cover Mr Ugiagbe’s complaint that his dismissal was discriminatory is inconsistent with our direction that the new tribunal should not have to reconsider whether Mr Ugiagbe’s dismissal was unfair. That is wrong. Whether or not the new tribunal finds that Mr Ugiagbe’s dismissal was discriminatory, the fact is that the previous tribunal’s finding that his dismissal was unfair was not the subject of any appeal. Admittedly, that was not because the Trust accepted that his dismissal was discriminatory. It was because the Trust accepted that he could not challenge the tribunal’s finding that irrespective of whether Mr Ugiagbe’s race had played any part in the decision to dismiss him, Mr Ugiagbe’s dismissal had nevertheless been unfair. The Trust had tried to dress up what the Trust claimed was his redundancy as voluntary, whereas Mr Ugiagbe was in truth not surplus to the Trust’s requirements at all, and thus if race had not played any part in the decision to dismiss him, and if he had therefore been dismissed because he was thought to be incompetent, none of the steps appropriate to a dismissal relating to an employee’s capability had been carried out. When we say in para. 95 of our judgment that it would not be open to the new tribunal to reconsider the fairness of Mr Ugiagbe’s dismissal, we meant only that it would not be open to the tribunal to reconsider whether Mr Ugiagbe’s dismissal was unfair on grounds other than discriminatory ones. It goes without saying that if the new tribunal finds that Mr Ugiagbe’s dismissal was discriminatory, it will be open to the tribunal to find - indeed such a finding would be inevitable - that Mr Ugiagbe’s dismissal was unfair for that reason as well.”

The issues

[3]Very wisely at the outset of the remitted hearing the Employment Tribunal took the opportunity to discuss the scope of the hearing with the parties. As a result it was agreed that the first ET1 raised the issue as to whether the dismissal amounted to direct discrimination, whether there had been less favourable treatment on account of the Claimant’s African ethnic origin than had been afforded to his line manager, Ms Zora Bampoe, who was of Iranian ethnic origin, and whether there had been less favourable treatment on account of the Claimant’s African ethnic origin than would have been afforded to an hypothetical comparator.

[4]As to the second ET1 at paragraph 24 of the judgment the Employment Tribunal set out a series of 10 allegations said by the Claimant to be evidence of or to constitute either direct race discrimination or discrimination by harassment on grounds of race or both. These were: i. delay in informing the Claimant of the outcome of the job evaluation under the “Agenda for Change”, which had been undertaken in December 2005; the Claimant had not been told until December 2006; ii. failing to request that the Claimant should act up when his manager, Ms Bampoe, was absent through illness in September 2006; iii. g iving some of the Claimants’s job functions, namely organising and administering the training of GPs, to Ms Melanie Warner in September 2006; iv. f ailing to offer the Claimant alternative work when his job was coming to an end in September 2006; v. s aying, through Dr Russell, at a meeting in 2006 that the Claimant “lacked the mental capacity” and making other denigrating remarks; vi. u ndermining the Claimant at that meeting by announcing that Ms Melanie Warner would be taking over his duties; vii. d owngrading the Claimant; viii. t hreatening that if the Claimant appealed against his treatment he would be dismissed without a redundancy payment; ix. f ailing to interview the Claimant for any of the jobs he applied for; x. p ressurising Ms Bampoe to dismiss the Claimant. Agreement about these issues did not dispose of all difficulties, however, and at paragraphs 25 to 34 of the judgment the Employment Tribunal gives details of some of the disputed areas and how some of the difficulties were resolved. It also gives the reader at paragraph 35 an insight into what is described as the “too aggressive” approach that it felt had crept into the hearing on both sides of the argument. Something of that was still recognisable in the hearing before us, which had been listed for one and a half days but did not finish until late on the second day. This necessitated reserving judgment, which has been long delayed. This is entirely the fault of HHJ Hand, who conveys his apologies to the parties.

[5]The upshot of these introductory paragraphs of the judgment is that the Employment Tribunal had to decide in relation to the first ET1 whether the dismissal had been less favourable treatment on the grounds of race and in relation to the second ET1 whether the ten specific allegations amounted to less favourable treatment on the grounds of race. In fact the employment Tribunal only addressed nine of these, as explained below at paragraph 10 of this judgment. Also there was some degree of overlap between the last three specific allegations in the second ET and the allegation that the dismissal was on the grounds of race. The Employment Tribunal’s approach to the issue of dismissal

[6]At paragraph 3 above we have mentioned the terms of the remission by the Employment Appeal Tribunal and the subsequent controversy which attended it. The Employment Tribunal refer to the note from Keith J at paragraph 15 of the judgment and at paragraph 16 and 17 summarise its contents. The last three sentences of paragraph 17 are of particular interest so far as the issue of dismissal is concerned:

“ Although the Trust did not accept that his dismissal was discriminatory, it accepted that it could not challenge the Tribunal’s findings that irrespective of whether Mr Ugiagbe’s race had played part in the decision to dismiss him, Mr Ugiagbe’s [2] had nonetheless been unfair. The Trust had tried to dress up what the Trust claimed was his redundancy as voluntary, whereas Mr Ugiagbe was in truth not surplus to the Trust requirements at all, and thus if race had played any part in the decision to dismiss him, and if he had therefore been dismissed because he was thought to be incompetent, none of the steps appropriate to a dismissal relating to an employee’s capability had been carried out. If the new Tribunal were to find Mr Ugiagbe’s dismissal was discriminatory, it would be open to the Tribunal to find – indeed inevitable – that Mr Ugiagbe’s dismissal was unfair for that reason as well.”

[7]This led to the Employment Tribunal taking the position that it did not need to make a finding as to what had happened at a meeting on 20 November 2006 (see paragraph 159 of the judgment) and it discussed the position on dismissal further at paragraphs 202 to 204 in these terms:

“ 202. Left to ourselves, we might have adopted the Jones Tribunal’s findings that gave rise to their conclusion that the Claimant was dismissed, as there was no appeal against the Jones Tribunal’s judgment that the Claimant was dismissed by the Respondent on 31 December 2006; and that the dismissal was automatically unfair. The Respondent defended the case at the Jones Tribunal on the basis that the Claimant had not been dismissed all. The Respondent presented largely the same evidence to this Tribunal on the issue of whether the Claimant was dismissed, but without on this occasion submitting that the Claimant had not been dismissed. When questioned on this issue by the Employment Judge, Ms Simler stated that we were invited to make the same findings of fact as the Jones Tribunal had been asked to do, but that the Respondent’s representative had been wrong in not accepting that the facts amounted to a dismissal. This is a somewhat unconvincing submission as, if it is correct, it suggests to us that the experienced counsel acting for the Respondent at the Jones Tribunal was wasting their time with arguing an unmeritorious point. 203. There is also a distinction about whether the Claimant was dismissed (which was not subject to an appeal); and why he was dismissed (for which the judgment that this was an act of unlawful race discrimination was subject to the successful appeal). 204. We have, in view of the explicit instruction to do so, made our findings of fact entirely fresh, being mindful that the judgment that the Claimant was dismissed is not the subject of an appeal, just as there was no appeal against the Jones Tribunal’s judgment that various of the allegations of race discrimination were unsuccessful. ”

Ms Simler QC did not accept that paragraph 202 accurately states the position she adopted at the hearing. The factual background

[8]The Claimant, who is now 50 years of age, started working for the Respondent as a Nurse Recruitment and Retention Coordinator on 11 February 2002. He was dismissed with effect from 31 December 2006. He acted up as Head of Education and Training for a period of 14 months from May 2003. From October 2005 he became a Practice Development Facilitator and he was in that post when he was dismissed.

[9]Although the ethnic mix of the Respondent’s workforce was found by the Employment Tribunal to be diverse, at higher levels of management the Respondent accepted that “ … The senior management levels of the Respondent did not match the make up of local people .” A positive action programme had been instituted to correct this but in order to qualify an aspirant had to be in post at a particular grade. In fact the Claimant’s position was to be downgraded and a good deal of the judgment addresses this aspect of the case. This issue, which was called “the downgrade issue” is dealt with at paragraphs 18 to 27 of the Grounds of Appeal. During the preliminary sifting process, to which all potential appeals submitted to this Tribunal are subject, HHJ Burke QC did not regard those parts of the Grounds of Appeal as disclosing any reasonable grounds for bringing an appeal and, accordingly, that aspect of the case was not allowed to proceed and has not been the subject of this appeal. We need only note, for present purposes that the Claimant’s post was downgraded.

[10]There had been a restructuring and his post had been disestablished or, putting it more bluntly, in effect, eliminated. He was not “slotted” into the new post that had been created. From 2006 onwards a Ms Melanie Warner took over some of the Claimant’s duties and he was not asked to “act up” for those who were absent. He was told he was at risk of redundancy in August 2006 and consideration for other posts was delayed by the illness of his colleague, Ms Bampoe, who was also a candidate for any new posts. In November 2006 there was a discussion between the Claimant and Mr Cusack, then, or shortly to become, Deputy Chief Executive Officer. The Employment Tribunal found it to have been about the Claimant’s likely redundancy. The Claimant alleges that in December 2006 the Respondent threatened to dismiss the Claimant and withdraw his redundancy pay in the event of the Claimant appealing against his banding. The Employment Tribunal rejected this, finding instead that the Claimant had been upset by the reduction in his status from Band 8 to Band 7 and also by being told that the redundancy funding could not remain in place forever. In the event, the Claimant left on 31 December 2006 and was paid a redundancy payment. The Employment Tribunal’s directions as to law

[11]The Employment Tribunal directed themselves as to the law on race discrimination at paragraphs 172 to 195 of the judgment. Ms Simler submitted that there were some errors in that self-direction and we will return to that when discussing her submissions. The conclusions as to whether or not the allegations were out of time

[12]The Employment Tribunal addressed the issue of time limits and concluded that some of the conduct complained about amounted to single isolated acts whereas other matters could properly be characterised as continuing acts. The failure to make known the outcome of job evaluation, the handing over of duties to others and the allegations of threats to withdraw redundancy payments were, concluded the Employment Tribunal, isolated acts. All the other allegations amounted to continuing acts. These were not out of time. The Employment Tribunal then considered whether it should extend time on the basis that it would be just and equitable to do so not only in those cases where it had held that the claim was out of time but also in those, which it had characterised as continuing acts, lest subsequently it be found that it had been wrong to reach the conclusion that these were continuing acts. The Employment Tribunal was not prepared to extend time in relation to the conversations in 2005 and 2006 but it was prepared to do so in all other cases (see paragraph 225 of the judgment at pages 37 to 38 of the hearing bundle). Consequently the tenth allegation (paragraph 24.10 of the judgment) was eliminated from consideration both because it was out of time and because the Employment Tribunal did not regard it as just and equitable to extend the time because the allegations, which arose out of conversation in 2005 and 2006, were significantly out of time and because the Employment Tribunal found as a fact that the allegations were “incorrect” (see paragraphs 222 to 234 of the Employment Tribunal’s judgment). Conclusions on the allegations made in the second ET1

[13]The Employment Tribunal found at paragraph 226 of the judgment that Ms Bampoe was not an appropriate comparator. Accordingly it turned its attention to considering the case of a hypothetical comparator. The approach adopted by the Employment Tribunal is set out at paragraph 229 and 230 of the judgment in these terms “229. As recorded in the Aylott case (above) the question of less favourable treatment than an appropriate comparator and the question of whether that treatment was on the relevant prohibited ground are so intertwined that one cannot be resolved without at the same time deciding the other. We have given close attention, therefore to the question, why – did the Claimant, on the proscribed ground receive less favourable treatment than others? 230. We have also given consideration to the issue of whether or not the Claimant has proved facts from which we could conclude, in the absence of an adequate explanation, that the Respondent has committed an act of discrimination or harassment against the complainant, or is to have been treated, by virtue of Section 32 of 33 RRA, to have done so.”

[14]The Employment Tribunal found there were troubling aspects to the evidence of some of the Respondent’s witnesses. This had been dealt with in detailed examples given at paragraph 45, 46 and 47 of the judgment and the Employment Tribunal returned to this theme at paragraph 231 of the judgment and restated some of the concerns, which included untruthfulness and inconsistency on the part of some of the Respondent’s witnesses. The situation is summed up the at paragraphs 232 to 236 of the judgment in this way: “232. Looking at the Claimant’s Employment with the Respondent as a whole, it is striking that his progress or lack of it, must have been enormously disappointing for him. 233. The Claimant entered the Respondent’s employment on the highest nursing grade under the Whitley Council grading. He was placed on a management program to develop the careers of managers from ethnic minorities. He had the Chief Executive of the organisation as a mentor. He must have had hopes, or expectations, of career progression with the Respondent, or in the NHS.

[234]Yet not only did the Claimant fail to obtain any promotion during his years of employment with the Respondent, but his grading very near the end of his employment, was reduced. This, as Ms Strickland stated in answer to a question during cross-examination, must have been hugely disappointing for the Respondent [3] . There are, of course many reasons why individuals of any ethnic origins reached the limit of their career progression in an organisation.235. Considering the case as a whole, therefore, there are facts that could indicate the presence of racial discrimination, in the absence of consideration of the explanations for how these events occurred.

236. The issues with which the Tribunal is concerned, are whether the events which took place about which he complains occurred as a result of race discrimination, or for other reasons.”

[15]With that in mind, Employment Tribunal turned to the allegations which had been set out at paragraph 24 of the judgment. So far as the first allegation was concerned, namely that there had been a delay of about a year between the job evaluation and the Claimant being informed as to its outcome, the Employment Tribunal concluded that this was factually correct. But they found at paragraph 239 of the judgment that the Claimant was not the only employee who had suffered a delay although they knew of nobody who had waited so long. There was, however, no evidence to suggest any ethnic disparity as between “ black employees, or of particular racial origins ”. The Employment Tribunal considered the reason for delay at paragraph 240 and at paragraph 241 regarded it as “ questionable ” as to whether the burden of proof had shifted in this case or not but at paragraph 242 reached the conclusion that it had shifted. Nevertheless they concluded:

“… we are satisfied that the Claimant’s treatment was not on the prohibited ground of race discrimination. We accept the Respondent’s explanations for the delays as not showing any race discrimination. It was unsatisfactory having the issue unresolved and the Claimant became unhappy about the delays, but the reasons were valid ones. We accepted, in our findings of fact, the Respondent’s explanation that the employee concerned was not notified until the job evaluation was completed, subject to review and appeal – the Claimant was not notified of the evaluation panel matching the Claimant’s job and the consistency panel’s rejection of that match because it meant that the job evaluation process was incomplete. There were valid reasons for seeking to find a matching job description to the Claimant’s PDF post – it would avoid needing to go through a time consuming process of evaluating the Claimant’s job afresh. When these attempts were unsuccessful, the Claimant’s JAQ did require further work before it could be submitted for evaluation; and it was difficult to arrange meetings for all 3 to attend, mainly because of difficulties in securing the attendance of Ms Bampoe. Eventually the JAQ was agreed, so the Claimant must have been satisfied that it was a fair reflection of his job, in order that he agreed it.”

Therefore, the Employment Tribunal concluded that the first allegation was explained satisfactorily.

[16]The Employment Tribunal next turned to the seventh allegation, taking it out of sequence, because it also concerned the grading of the PDF post. The Employment Tribunal found that allegation to be factually accurate and concluded that it had been satisfactorily explained. There is no appeal against its finding.

[17]The Employment Tribunal then went back to consider the second allegation, which concerned the Claimant not having been asked to “act up” in 2006. At paragraph 251 of the judgment the Employment Tribunal noted that in the previous year, during the absence of Ms Bampoe, the Claimant had been asked to take on some of her work “ although he was not formally acting in her position or paid to do so ”. The Employment Tribunal asked itself whether this difference in treatment amounted to less favourable treatment on racial grounds? The answer at paragraph 254 of the judgment was in the negative. The Employment Tribunal concluded that the Respondent had provided a satisfactory explanation of the reason for the Claimant not being asked to act up in 2006 and consequently held the treatment not to be on racial grounds.

[18]As to the fourth allegation, which the Employment Tribunal regarded as linked to the second allegation, namely that there had been no offer of suitable alternative work in September 2006, at paragraphs 255 to 258 of the judgment the Employment Tribunal concluded that there was no need to offer alternative work because, although the organising and administering of GP training had been transferred, all the rest of the Claimant’s job functions remain intact and he had plenty of work to do.

[19]The Employment Tribunal’s reasoning in relation to the third allegation appears at paragraphs 259 to 262 of the judgment. There could be no doubt that the GP training role had been taken from the Claimant and given to Ms Warner. The Employment Tribunal concluded, however, that there were sound organisational reasons for doing so and that change would have been made irrespective of the Claimant’s ethnic origin; therefore, that allegation failed.

[20]But the fifth allegation, which related to the comments made by Dr Russell about the Claimant, succeeded. The Employment Tribunal in concluding at paragraph 46 that Dr Russell, who was the Medical Director of the Respondent, had not given a consistent account, said this:

“Another of the Respondent’s witnesses, Dr Russell, changed his witness evidence from the first tribunal hearing to this hearing in an important respect. In the Jones tribunal he stated in his witness statement that he did not state that Mr Ugiagbe “lacked mental capacity” he did accept however that he had spoken to Mr Ugiagbe’s line manager and stated that “I wondered if Mr Ugiagbe had “the mental capacity to deliver the protected learning programme”

. In contrast in his witness statement to this tribunal in these proceedings, however, he denied having made any such remark. His explanation for this change in his evidence is highly unconvincing. To put it plainly, we do not believe that he was telling the truth of this hearing. His evidence is also unconvincing at some other parts.”

[21]More was said about this at paragraphs 121 to 124 of the judgment and given the significance of the matter, despite their length, we will set them out in full: “121. When the Claimant was slotting into the position of PDF in October 2005, part of his role was to organise training for GPs, with the assistance of the administrator who was in post (Ms McInerney) and under direction from Dr Russell. 122. Dr Russell soon formed the opinion that the Claimant was carrying out this element of his role badly. He made the Claimant well aware of his dissatisfaction, as the Tribunal has seen from various emails to which we were referred in the documentation.

[123]In dispute is whether, at a meeting on 1 August 2006, Dr Russell told Ms Bampoe that in his view the Claimant did not have the mental capacity to carry out the tasks assigned to him. In these proceedings, Dr Russell has denied that he made this remark; although he accepted in the hearing before the Jones Tribunal that he stated “ I wondered if Mr Ugiagbe had the mental capacity to deliver the protected learning programme.’ ” He does accept, however, that after Ms Bampoe had stated that he [4] believed that the Claimant is very intelligent and educated and believe that he had the equivalent of two Masters Degrees, he responded by saying “ Wow! Big deal ”. 124. We have no hesitation in finding that Dr Russell did make the remark alleged including because: –124.1 We do not believe Dr Russell’s change of position between his evidence at the Jones Tribunal and this Tribunal. Put plainly, we find that he was not telling us the truth at this hearing on this issue.

124.2 Ms Bampoe did refer to the allegation in a grievance she submitted to Mr Cusack in October 2006. The matter was then fresh on her mind and, we consider, the most accurate description of what took place.

124.3 Until his witness statement for this hearing Dr Russell has not, so far as we were made aware, denied this allegation and, as described above, has accepted that he did make such a remark.

124.4 After the Claimant’s employment with the Respondent ended, he entered a grievance, to which Dr Russell responded. Dr Russell’s response at that time was, we find, an accurate reflection of his feelings about the Claimant. Dr Russell’s response to the grievance was very critical not only of the Claimant’s work, but of him as a person. Included in his response was the statement “ I found his comprehension poor and his attitude pompous and rigid ”. This remark is consistent with his earlier statement that the Claimant lacked mental capacity; and his remark “ wow big deal ”. He made a number of strongly worded criticisms of his work.

124.5 Dr Russell also stated in his response that Miss McInerney had informed him that she found him to be lazy and a bully and that he gave her no support or leadership. Ms McInerney gave evidence before Dr Russell and disputed that she made such remarks to Dr Russell. When giving his evidence to the Tribunal Dr Russell backtracked from the statements he had made in his grievance. Dr Russell’s evidence at this Hearing was inconsistent with his more contemporaneous comments in reply to the grievance. This aspect of his evidence further undermined confidence in the reliability of his evidence to the Tribunal.

124.6 Ms McInerney did give evidence that Dr Russell was blunt and tactless towards others, although the manner of the introduction of this evidence gave us some scepticism as to the quality of the evidence – it was introduced in examination in chief for the first time, rather than in her witness statement. We find that the manner of his criticisms, including what were quite personal attacks on the Claimant’s character were a different scale to others to whom he may have been blunt or tactless.”

[22]The Employment Tribunal go on to give examples of “ … aspects of the Respondent’s evidence that troubled us ” at paragraph 231 of the judgment and say this about Dr Russell’s evidence at paragraph 231.2:

“231.2 Dr Russell’s evidence in at least one aspect was untrue. More generally there were various examples of disparaging treatment by him towards the Claimant. Where a witness has given evidence that is untruthful raises the question why they are not being truthful as required under the oath or affirmation they have given. One possibility might be seeking to cover up an incident of racial discrimination. Another might be a reluctance to admit to having racially discriminated towards an employee, even to themselves.”

[23]At paragraphs 263 and 264 the Employment Tribunal resolve this by concluding that Dr Russell had discriminated against the Claimant. The terms in which it did so are important to both arguments on this appeal and again, rather than attempt a summary it is better to set them out in full:

“263. For the reasons given in our conclusions in which we made general comments on the burden of proof, the burden of proof shifts to the Respondent to prove that he did not racially discriminate against the Claimant in respect of this allegation. In particular: 263.1 We have found that Dr Russell’s evidence at this Tribunal in denying the remark was untruthful. This poses an issue as to why Dr Russell was giving untruthful evidence to us. 263.2 One possible reason for giving untruthful evidence to the Tribunal would be to seek to cover up what, in retrospect was behaviour that showed him in an unfavourable light and might lead to a finding that he had racially discriminated against Claimant. This is what we believe Dr Russell was in fact during. 263.3 In his response to the grievance of the Claimant, Dr Russell stated that Miss McInerney had informed him that she found him to be lazy and a bully and that he gave her no support or leadership. We accept her evidence at this Hearing that she did not say that; and Dr Russell, in his evidence to this Tribunal withdrew from what he had written in his grievance. Dr Russell, therefore, was imputing to Ms McInerney his own views about the Claimants. 263.4 There are other instances of disparaging comments by Dr Russell about the Claimant such as for example, his response to Ms Bampoe’s comment about the Claimant’s educational qualifications where he stated “wow big deal.” 263.5 We have a slight feeling of unease about Dr Russell referring to Ms Donna Kinnane as “Doner Kebab”

. We appreciate that this remark was probably intended to be a joke and we understand that Ms Kinnane is of a white Irish background rather than of Greek or Turkish origins. Nevertheless jokes such as this could show a lack of awareness of racial sensitivities in an ethnically diverse workforce.

[264]We are not satisfied that the Respondent has proved that the behaviour was in [5] sense whatsoever on the grounds of race. Put another way we do conclude that the behaviour was prohibited on the grounds of race. We so conclude for the reasons given above and because:264.1 We accept that Dr Russell could be tactless to individuals whatever their racial origins; as shown in our findings of fact, although not to the extent of his criticisms of the Claimant.

264.2 We also accept that Dr Russell genuinely felt that the Claimant was performing poorly in his task organising and administering training.

264.3 Dr Russell has sought, albeit belatedly by changing his evidence for the two Tribunal Hearings as to the remark about mental capacity and has been untruthful in doing so. Additionally, he has imputed to Ms McInerney views that she did not express to him, which were also highly disparaging towards the Claimant. As described above, he was covering up this aspect of his behaviour (at paragraph 263.2).

264.4 We have also concluded that the manner and extent of these criticisms were influenced by the Claimant’s colour and racial origins and that he would have treated a white British employee with those work he was dissatisfied more favourably. He would not have publicly expressed his criticisms to the employee’s line manager by doubting their mental capacity and by sarcastically remarking “wow big deal”. 265.5 This complaint of the Claimant, therefore, succeeds. ”

[24]The Claimant also succeeded in respect of the sixth allegation, which was that the announcement made by Dr Russell without prior warning to the Claimant in the “Protected Learning Time” meeting to the effect that Ms Warner was taking over, amounted to less favourable treatment on the grounds of race. The Employment Tribunal concluded at paragraph 267 of the judgment “ that the burden of proof shifts to the Respondent to prove the treatment was in no sense whatsoever on grounds of race ” and at paragraph 268 that:

“… the treatment was on the proscribed ground; and the Respondent has not satisfied us on the reverse burden of proof.” stating that: “We do so for similar reasons as those set out above in respect of the remarks about mental capacity and other negative language about the Claimant. Having considered all the evidence, particularly having heard Dr Russell give evidence, we have concluded that he would have shown more consideration to a white employee and have been likely to have spoken with him or her first before making the announcement. The Claimant was therefore, less favourably treated on racial grounds than a hypothetical white comparator would have been.”

[25]The ninth allegation failed. The Employment Tribunal dealt with this at paragraph 270 to 273 of the judgment. The allegation related to the fact Claimant had not been interviewed for two jobs and no explanation given as to what had happened to his application. Although the Employment Tribunal found that the Claimant had been given an explanation it concluded that the burden of proof shifted because there had been a lengthy delay. Nevertheless it held that there had been a satisfactory explanation for the delay because the Respondent had been waiting for Ms Bampoe to recover from illness. Accordingly, that aspect of the claim failed. The conclusions of the Employment Tribunal on the allegations made in the first ET1

[26]The first ET1 complained of unfair dismissal and that the dismissal also constituted direct race discrimination. The Employment Tribunal considered this together with the eighth allegation, which it had identified at paragraph 24 of the judgment as arising out of the second ET1. In terms of factual findings the Employment Tribunal had considered both together (see paragraphs 153 to 165 of the judgment). This was because the Employment Tribunal regarded the latter as part of the sequence of events leading to the dismissal. Consequently when it considered its conclusions, the Employment Tribunal also looked at the two matters as is explained at paragraph 274 of the judgment in these terms:

“It is convenient to deal with these two allegations together, as they both concerned the Claimant’s dismissal – the first being an allegation of a threat to dismissed; and the second concerns the Claimant’s dismissal.”

[27]The Employment Tribunal concluded at paragraphs 274 to 276 of the judgment that at the meeting on 13 December 2006 the Claimant had been told that the job evaluation had confirmed the level of his current post at Band 7. It was currently Band 8A and if he entered an appeal or raised a grievance, then that might lead to the Band being confirmed as Band 7, which would have an adverse impact on the level of any redundancy payment, currently being calculated on the basis of Band 8A. The Employment Tribunal held that any employee, irrespective of race or ethnic origin, would have been treated the same and consequently the eighth allegation could not be sustained.

[28]The Employment Tribunal then went on to ask itself at paragraph 279 of the judgment the following questions:

“Did, therefore, the Claimant’s race play any part in the Respondent’s decision to dismiss him? Why did the Respondent dismissed the Claimant unfairly?”

[29]Although the Employment Tribunal found that Dr Russell had not been involved in the dismissal, for reasons set out at paragraphs 281 to 284 the Employment Tribunal decided that the burden of proof shifted to the Respondent but concluded that the dismissal was “in no sense whatsoever on the grounds of race” (see paragraph 285 to 289 of the judgment). Submissions – the Claimant’s appeal

[30]The Claimant complained in his Notice of Appeal that the Employment Tribunal, having concluded that the burden of proof had shifted to the Respondent on the issue of the reason for his dismissal, had not elucidated any satisfactory explanation on the part of the Respondent “that the treatment was in no sense whatsoever on the grounds of race”. In his oral submissions he referred to paragraph 143 and 144 of the judgment of the first Employment Tribunal, which everybody has has described as “the Jones Tribunal”. These read:

“143. In our judgment there was no reason for the Claimant’s dismissal on 31 December 2006. It is part of our findings that no decisions on his employment needed to be made until June 2007 and there were no outstanding performance or conduct matters that concerned him or made the need to reach a decision on the Claimant’s future more urgent. The Claimant had instead been informed that he had been ring-fenced for one of the two jobs, for which he had applied and therefore had a legitimate expectation that he would be at least be interviewed for or at most, retained in employment in one of them. There is no valid explanation as to why he was never interviewed for either post over the period of time from August to December 2006 and that interviews did not take place until after his dismissal. 144. It is therefore our judgment that the Claimant was not redundant at the time of his dismissal and no such case was made to us by the Respondent at the Hearing.”

[31]The Claimant submitted that conclusion should stand and therefore the rehearing should have proceeded on the basis that the Respondent could not establish any reason for the dismissal. Reason for dismissal and explanation for dismissal are interchangeable concepts. Instead the rehearing Tribunal had gone “fishing”, as the Claimant put it, for a reason for dismissal. What the Employment Tribunal had done was to synthesise a redundancy reason or a reorganisation reason (it was not clear which) for the dismissal out of very limited factual material. This comprised the last sentence of paragraph 275 and the first three sentences of paragraph 176 of the judgment, which read:

“ … The Claimant was very upset at being told, at the meeting on 12 December that his banding had been reduced. The Claimant had been expecting that his banding would at least be confirmed and hopeful that it would be increased. 276. We are satisfied that this element of the treatment of the Claimant was in no sense whatsoever on racial grounds. Mr West and Ms Alexander were seeking to convey information to the Claimant about the possible implications of how he may respond to what was for him an enormously disappointing outcome to the job evaluation of the PDF post he had been (sic). It was difficult for them to do this, because the Claimant was very upset at the outcome, which was why Mr West wrote to the Claimant’s union representative to explain what had happened at the meeting and to continue with negotiations about the ending of the Claimant’s employment.”

[32]What is almost a postscript to the factual findings appears in the fourth and fifth sentences of paragraph 288 of the judgment in these terms:

“ … The Claimant and his union representatives were willing to negotiate terms for his dismissal which include a substantial sum for a redundancy payment. Neither the Claimant or his union representatives (Mr Shepherd and Ms Davey) were suggesting at that time there was any race discrimination in how the Claimant was being treated.”

[33]The Claimant submitted that those sentences cannot be part of any explanation as to why the steps taken, as summarised in paragraph 276 of the judgment quoted above, was not discriminatory. He had included in the appeal bundle an extensive e-mail exchange between himself and Ms Janine Davey, formerly a trade union representative, but now employed by Great Western Ambulance Service (see pages 265 to 269 of the appeal bundle). He wished to rely on this material as demonstrating that, contrary to the conclusion reached by the Employment Tribunal at paragraph 288, Ms Davey had no involvement in any negotiations about redundancy. We will return to this matter later in this judgment.

[34]In any event there had been an inadequate and erroneous investigation of the factual matrix. It was inadequate because it was superficial and did not have access to the complete picture as it would have emerged if the position of the trade union officials had been properly investigated. It was erroneous because the finding at paragraph 164 of the judgment was simply wrong. The Claimant had not asked Mr Cusack to change his leaving date.

[35]The Claimant submitted that the Employment Tribunal had failed to understand the need to identify subconscious discrimination and had misunderstood that the reversal of the burden of proof required not simply some sort of explanation but that a non-discriminatory explanation needed to be raised in order to ensure that there was no subconscious discrimination. The Claimant accepted that an Tribunal can reject an employer’s stated reason for dismissal and identify what it considers to be the real reason for dismissal providing that there is an adequate evidential basis for such a finding (see McCrory v Magee

[1983] IRLR 414

) and always providing that there is no procedural unfairness (cf. Hotson v Wisbech Conservative Club

[1984] ICR 859

). Here, however, there had been both procedural unfairness in that he had not been able to call Ms Davey to put the trade union role into a proper perspective and there had been no adequate evidence to justify reversing the conclusion of the Jones Tribunal that no reason for dismissal had been proved and for, in effect, reverting to the employer’s reason, namely redundancy, when the evidence that had persuaded the Jones Tribunal to the contrary had been undisturbed by the Employment Tribunal presided over by Employment Judge Goodrich.

[36]Moreover, on the second day of the hearing it became clear that the Claimant was seeking to broaden the scope of his appeal. He wished to submit that the evidence established that Dr Russell had influenced the decision to dismiss and the Employment Tribunal ought to have found the dismissal to have been less favourable treatment on the grounds of race because he had been involved in the dismissal. As the Claimant had set out at paragraph 10 of his answer to the Respondent’s appeal Dr Russell and Ms Alexander were co-directors and the Employment Tribunal had been naive to accept that they had not been working together and influencing one another. He wished to argue that either the Employment Tribunal should have found that Dr Russell had influenced the decision to dismiss or that the Employment Tribunal’s judgment properly understood by reference to the evidence given to it amounted to a finding that Dr Russell had influenced that dismissal decision. He wished us to consider a transcription of notes of evidence taken by the Respondent’s solicitor at the hearing.

[37]This seemed to us to be a considerable departure from the appeal set out in the Notice of Appeal and, in essence, amounted to an application to amend the scope of the appeal. Ms Simler QC did not object to us looking at the note of Dr Russell’s evidence but she did object to any proposed amendment or any perspective that lead to a significant widening not only of the appeal but also of the case itself. She observed that there had never been any allegation of Dr Russell having been involved in or influencing any of the “Agenda For Change” matters or any part of the job evaluation or regrading process affecting the Claimant in the later part 2006 nor of him having been involved in or influencing the termination of the Claimant’s employment. If there were to be any such amendment or broadening of the scope of these proceedings, then in fairness to her clients the matter would have to be adjourned so that not only the notes of evidence of Dr Russell but those of the evidence of Mr Cusack, Mr West and Ms Alexander could be obtained and scrutinised.

[38]After the short adjournment on the second day of the hearing before us we were asked by the Claimant to look at pages 42 to 44 and 46 of the transcript of the solicitor’s note of Dr Russell’s evidence. These certainly confirm that as co-directors Dr Russell and Ms Alexander regularly worked and met together. They also confirm (see page 42) that it was put by the Claimant to Dr Russell that there had been a deliberate plan to remove the Claimant, which allegation Dr Russell had described as “arrant nonsense”.

[39]He submitted that the Jones Tribunal had seen through the Respondent’s case and that on the evidence the same findings should have been inevitable on the remission. What had happened, however, in the judgment of the Employment Tribunal from paragraph 279 to 290 is a completely false conclusion had been arrived at in relation to the role of Dr Russell. The extent to which this was a superficial analysis can be illustrated by reference to paragraph 288 of the judgment, which suggests the presence of Ms Davey, when she never attended any meeting, and consequently attributes to her something that she never made any comment on.

[40]The scope of an appeal to this Tribunal has been identified by the Court of Appeal in British Telecommunications plc v Sheridan

[1990] IRLR 27

as misdirection of law, finding of fact unsupported by the evidence and perversity. As established by the later judgment of the Court of Appeal in London Borough of Ealing v Rihal

[2004] EWCA Civ 623

in a discrimination case the Tribunal had to have regard to the “total picture” (see paragraph 25 of the judgment), not look at incidents in isolation (see paragraph 31 of the judgment) and draw inferences from a general picture of racial imbalance (see paragraph 53 of the judgment). This is what the Employment Tribunal here had failed to do. It had failed to consider the “total picture”, had failed to set the case into a background of racial imbalance and had failed to draw the obvious inferences from the evidence, which inferences had been properly drawn by the Jones Tribunal, namely that the Claimant’s dismissal had been orchestrated by senior management led by Dr Russell.

[41]Ms Simler QC submitted that at the heart of the Complainant’s submissions there lay a crucial misunderstanding as to the character of the adequacy of any explanation of less favourable treatment. It did not need to be reasonable or justifiable in an objective sense; it needed only to be accepted by the Employment Tribunal as being true and sincere. This has its origins in the decision of the House of Lords in Glasgow City Council v Zafar

[1998] ICR 120

. It has been explained and expanded upon in many subsequent cases and she particularly commended to our attention paragraphs 85 and 94 of the judgment of this Tribunal in The Law Society v Bahl [ 2003] IRLR 640 .

[42]She provided a helpful summary of the decision made by the Jones Tribunal. This had rejected mutual termination (see paragraphs 114 to 123 of that judgment) and also rejected redundancy (see paragraph 124 of that judgment). The Jones Tribunal had then, in connection with the dismissal, drawn an inference of race discrimination (see paragraph 128 of that judgment), which had been the subject of the appeal to the Employment Appeal Tribunal. Then at paragraph 129 of the judgment of the Jones Tribunal it had reached the conclusion that there had been a breach of the “statutory procedures”, which rendered the dismissal automatically unfair. The note from Keith J had made it clear that none but the latter survived the appeal.

[43]In those circumstances, submitted Ms Simler QC, the Employment Tribunal presided over by Employment Judge Goodrich had to rehear a case in which a finding of automatically unfair dismissal for failure to follow “statutory procedures” remained in place. Therefore what faced this Tribunal was the need to investigate a set of facts and look for an explanation as to why the Respondent had behaved as it did. In her submission it was entirely unnecessary for Employment Tribunal to have to attach any label to the dismissal at the remitted hearing. It was not concerned with the “reason” for dismissal so much as establishing why the dismissal had occurred.

[44]Ms Simmer QC submitted that this was what the Employment Tribunal had done. The factual situation described at paragraphs 142 to 144 of the judgment was a reorganisation that had taken place in every NHS Trust throughout the country. As described at paragraph 144 of the judgment two posts were being eliminated but there were two new positions being created. This was “a potential redundancy situation”. The Claimant’s qualifications experience and attributes did not “slot in” to the new posts (see paragraph 145 of the judgment). This had to be resolved by June 2007 and, as the Employment Tribunal had identified, the Claimant could have stayed until then. As recorded at paragraph 147 of the judgment the Claimant had been told that he was “at risk”, although there were two new jobs for which he could apply.

[45]He had applied for both those jobs (see paragraph 148 of the judgment). By contrast his line manager, Ms Bampoe, applied for neither. Her position was that she ought to have been “slotted in” to either of the two new posts and that she was absent through illness, something which the Employment Tribunal regarded as having delayed any resolution of the Claimant’s future position at the Respondent. In the latter part of 2006 the Employment Tribunal found that the Claimant was anxious to have his position resolved and was upset by the fact that his current position had been downgraded from Band 8A to Band 7. Consequently he had spoken to Mr Cusack and the Employment Tribunal rejected his allegations that the latter had dealt with the Claimant in a blatantly discriminatory fashion (see paragraphs 154 to 156 of the judgment).

[46]When the Employment Tribunal concluded, as it did at paragraph 159 of the judgment (see again paragraph 7 of this judgment above), that it did not need to make any specific findings as to what had happened at a subsequent meeting on 20 November 2006 between the Claimant and Mr West and Ms Alexander of the Respondent, Ms Simler QC submitted that had been an entirely correct approach for the Employment Tribunal to take. The finding at paragraph 160 of the judgment as to the contents of a letter written by Ms Alexander to the Claimant on 20 November 2006 was entirely supported by consideration of the third paragraph of that letter (see page 18 of the supplementary appeal bundle). Likewise paragraph 161 of the judgment accurately replicated the contents of the letter in reply written by the Claimant to Ms Alexander on 22 November 2006 (see page 20 of the supplementary appeal bundle). The letter of 12 December 2006, which appears at page 21 of the supplementary appeal bundle responded to that letter. There was then a meeting on 13 December, events at which were the subject of an evidential dispute between the parties resolved by the Employment Tribunal at paragraph 162 of the judgment in favour of the account given by the Respondent’s witnesses.

[47]This synopsis of the investigation into the circumstances immediately preceding the Claimant’s dismissal on 31 December 2006 was mirrored in the conclusions at paragraphs 274 to 290 of the judgment. The Employment Tribunal had analysed its previous factual findings at paragraphs 279 to 288 of the judgment and Ms Simler QC submitted the acceptance of the truth of the explanation at paragraph 288 of the judgment, thus affording a full explanation that the treatment by the Respondent of the Claimant had not been by reason of his race or ethnic origin, was unimpeachable. In the circumstances nothing more elaborate had been called for.

[48]As to the late attempt to argue that the Employment Tribunal had really found, or ought to have found, that the dismissal had been influenced by Dr Russell, this was completely untenable. There was simply no evidence to support that. Dr Russell had denied it. It had never been disputed that Ms Alexander and Dr Russell were co-directors and part of a management team but the issue was whether Dr Russell had been involved in the dismissal. The evidence supported his denial of involvement and the Employment Tribunal were entitled to accept it. In the terms outlined by the Claimant for a successful appeal in his submissions, this argument could not succeed. The Employment Tribunal had accepted Dr Russell’s denial of involvement and they were entitled to reach that conclusion. Submissions – the Respondent’s appeal

[49]Ms Simler QC summarised the Respondent’s appeal as misdirection as to the burden of proof, erroneously drawn inferences not supported by the primary facts and inadequate reasoning. She drew attention to the unreported judgment of the Court of Appeal in Effa v Alexandra Health Care NHS Trust (5 November 1999) where Mummery LJ said:

“It is common ground that an error of law is made by a tribunal if it finds less favourable treatment on racial grounds where there is no evidence or material from which it can properly make such an inference. See North West Thames RHA v Noone [1988] ICR 813 at 824. Although an Employment Tribunal is less formal in its procedures than a court of law and is not bound by the rules of evidence, it must be satisfied that the complaint is proved, on the balance of probabilities, by the person who makes it. In the absence of direct evidence on an issue of less favourable treatment or racial grounds, the tribunal may make inferences from other facts which are undisputed or are established by evidence. However, in the absence of adequate material from which inferences can be properly made, a tribunal is not entitled to find a claim proved by making unsupported legal or factual assumptions about disputed questions of less favourable treatment on racial grounds. This is so whether the discrimination is alleged to arise from conscious or subconscious influences operating in the mind of the alleged discriminator.”

[50]The focus of her submission was on the Employment Tribunal’s conclusion that the evidence Dr Russell had given as to the remark made to Ms Bampoe about the Claimant’s capacity to put the “Protected Learning Programme” into effect had been untruthful (see paragraphs 46, 123 and 124, 231 and 263 of the judgment). The Employment Tribunal based this on a combination of inconsistency as between one account and another, sarcasm about the Claimant’s qualifications and a perception that his attitude towards the Claimant went beyond his normal blunt and tactless manner. The latter was without any evidential foundation, the first and second had been given an emphasis out of all proportion to their real significance. This was a classic mixture of inferences being drawn as a sanction for the Employment Tribunal’s dislike of Dr Russell’s approach to the Claimant and being drawn because they were open to be drawn. In other words the Employment Tribunal had erroneously drawn an inference not because it was an objectively proper inference to draw but because the Tribunal was subjectively ill-disposed to the Respondent. This removed from consideration the possibility of drawing a more neutral inference, namely that Dr Russell had been embarrassed by his own forthrightness and had sought to present a rather less harsh picture. Paragraph 263.2 is in these terms:

“One possible reason for giving untruthful evidence to the Tribunal would be to seek to cover up what, in retrospect was behaviour that showed him in an unfavourable light and might lead to a finding that he had racially discriminated against the Claimant. This is what we believe Dr Russell was in fact doing.” and represented the high water mark of this approach. There was no need to combine the “unfavourable light” and discrimination proceedings. This is a classic illustration of the error of drawing an inference because it might be open or rather as a “tick box exercise”

. Ultimately it results in paragraph 264.4:

“We have concluded that the manner and extent of these criticisms were influenced by the Claimant’s colour and racial origins and that he would have treated a white British employee with whose work he was dissatisfied more favourably. He would not have publicly expressed his criticisms to the employee’s line manager by doubting their mental capacity and by sarcastically remarking “wow big deal”.”

This is a non-sequitur and a conclusion drawn without an adequate factual foundation.

[51]The second main plank of the Employment Tribunal’s conclusion related to the announcement made in a meeting without warning to the Claimant that Ms Warner would be taking over the Claimant’s function in relation to the training of GPs. The Employment Tribunal considered that the burden of proof shifted to the Respondent to give a non-discriminatory explanation (see paragraph 267 of the judgment). Ms Simler QC submitted that before considering whether the burden of proof shifted the Claimant had to establish a case of less favourable treatment in terms of the allegation made. This was that the Claimant had been undermined not that he had been taken by surprise. But the Employment Tribunal had found at paragraph 119 of the judgment that he had not felt “very seriously undermined or humiliated at the time”. What the Employment Tribunal had addressed at paragraphs 265 to 269 of the judgment was the Claimant being taken by surprise not that he had been humiliated or undermined. This was a Chapman v Simon [6] error of the Employment Tribunal finding a case proved when it had not been in issue. Moreover, the reasoning at paragraph 268 of the judgment, drawn as it is from the first adverse finding against Dr Russell, does not support the conclusion arrived at.

[52]On any analysis this finding against Dr Russell must be one of unconscious discrimination. It was unsupported by evidence and Ms Simler QC submitted that we should substitute a finding that there has been no discrimination. Discussion and Conclusion The Claimant’s Appeal

[53]We turn first to the question of Ms Davey’s evidence. An application, in the form of a letter, had been made on 23 March 2012 for Ms Davey to be called to give evidence (see pages 263 and 264 of the appeal bundle). This followed broadly the parameters for the calling of fresh evidence established by the Court of Appeal in Ladd v Marshall [ 1954 ] 1 WLR 1489 and it was made a few weeks before the Practice Statement of 17 April 2012 was promulgated by the President. We are not entirely clear as to whether any directions were ever given in relation to this application but even if they were not we do not see why the Claimant has not complied with the terms of the Practice Statement by seeking a review by the Employment Tribunal. In the event that has not happened and we could leave the matter there but, having considered the terms of the e-mails passing between the Claimant and Ms Davey (see pages 265 - 269 of the appeal bundle), we should add that we cannot see how this evidence should have made any impact on the decision made by the Employment Tribunal. In our view it makes no impact whatsoever on the findings at paragraph 162 of the judgment nor on paragraph 288 of the judgment. In short the evidence cannot be admitted but, even if it were, it could make no difference.

[54]The Employment Appeal Tribunal always endeavours to assist a self represented party to present their case and sometimes that includes a degree of liberality as to what this Tribunal is prepared to entertain but the attempt by the Claimant to broaden the case and introduce notes of evidence without following the prescribed procedure goes well beyond the margin of appreciation that can be allowed to any self represented party. The reference to this material crosses the line between assisting an unrepresented party to present the case in the best possible light and extending a degree of latitude, which amounts to creating an exceptional situation in relation to material, which would be excluded by all the usual parameters for the receipt of fresh material on appeal.

[55]Very generously Ms Simler QC agreed to our looking at the notes of evidence. Having done so it seems to us that they entirely support the conclusions arrived at in the judgment by the Employment Tribunal. They certainly do not provide a basis for the submission, which the Claimant wished to make, namely that the Employment Tribunal on the evidence before it ought to have held the Dr Russell was involved in the dismissal process in November and December 2006. Dr Russell denied any involvement; the Employment Tribunal clearly accepted his evidence on that point and was entitled to do so. We are not prepared to permit any amendment at this stage to the Grounds of Appeal but even if any such amendment were permitted, it would be doomed to fail on the evidential material that we have seen.

[56]There is a certain logical symmetry about the proposition that any consideration of an explanation as to why an employee has been dismissed must involve consideration of the reason for that dismissal. It seems to us that this case is an illustration of the difficulties that arise when litigation is drawn out, both over a considerable period of time, and also back and forth in the appeal process. The case can become stratified and keeping the various layers identifiable and separate may be increasingly difficult. We accept the Claimant’s observation that the Employment Tribunal have never clearly identified whether in their judgment the reason for dismissal in this case was redundancy or some other substantial reason the nature of the reorganisation. 61. That in our view cannot, however, be any basis for criticising the Employment Tribunal. It did not face the task of deciding whether or not the Claimant had been dismissed. This had been decided by the Jones Tribunal, a decision not challenged in the first appeal. What had been successfully challenged on the first appeal was the finding by the Jones Tribunal that the Claimant had been dismissed by reason of race discrimination. The question which faced the Employment Tribunal on remission was to decide whether the conduct of the Respondent towards the Claimant in respect of a series of allegations that he made about his treatment amounted to direct race discrimination and whether the explanation for his dismissal was direct race discrimination.

[57]In resolving these questions the Employment Tribunal looked very carefully at a considerable amount of evidential material over a lengthy hearing. In our judgment they reached clear and cogent conclusions in accordance with the terms of the remission that had been explained in the note from Keith J. We agree with Ms Simler QC that their primary concern was to establish the truth of the explanation. We are not concerned with the fact that the evidential material might have been viewed differently with a different outcome. Inevitably that must be a possibility having regard to the fact that the Jones Tribunal took a different view of the outcome. The question is whether any error of law, in the form of a misdirection or of a conclusion drawn without evidential support or of a conclusion that no reasonable tribunal properly directing itself on the evidence could have reached can be found in the judgment. We have reached the conclusion that this Employment Tribunal properly directed itself, made findings that were supported by the evidence and reached a conclusion that could not possibly be described as perverse. The Respondent’s appeal

[58]The remarks we have just made in respect of the Claimant’s appeal might be thought to apply equally to the submissions of Ms Simler QC; after all, what is sauce for the goose is sauce for the gander. But the matter is not so simple because the appeals are not mirror images.

[59]Ms Simler QC’s first criticism related partly to unsound inferences and she relied on the passage in the judgment of Mummery LJ quoted above at paragraph 49 of this judgment. But a little later in the judgment Mummery LJ said this:

“There are, of course, many cases in which it is reasonably open to different tribunals to reach different conclusions on questions of secondary fact as well as of primary fact. In those cases an Appeal Tribunal or Appeal Court is not entitled to interfere solely on the ground that it would have taken a different view of the evidence and the facts.”

[60]We appreciate that Ms Simler QC was submitting that the Employment Tribunal could not have drawn the inferences that it did but we have concluded that in reality she was arguing that the Employment Tribunal should not have drawn those inferences. It is perfectly true that a lie may be told for many reasons and the Employment Tribunal could have concluded that in this case it had been told to cover up embarrassment at crass behaviour. But it did not and it seems to us that it was open to the Employment Tribunal to conclude that Dr Russell had changed his evidence in order to hide discriminatory behaviour.

[61]Nor do we agree that a perception that his attitude towards the Claimant went beyond his normal blunt and tactless manner was a non sequitur or that his evidential inconsistency and sarcastic attitude towards the Claimant’s qualifications were given an unwarranted and exaggerated emphasis. It is not a cliché to say that having seen the witness and heard his evidence tested the Employment Tribunal was in a far better position than we are to reach inferential conclusions. We can find no basis for thinking that the Employment Tribunal was motivated to draw inferences as a sanction against Dr Russell for conduct of which it approved. On the contrary it seems to us that the Employment Tribunal strove to produce a balanced judgment and, although the text of the judgment shows the strain of having to distil a great deal of factual material in a short time and synthesise it into a coherent form, we think the Employment Tribunal has achieved that objective.

[62]Ms Simler QC’s second point has caused us more difficulty. The Claimant’s complaint about the PLT meeting in July 2006 had consistently been that he had been “undermined” and paragraph 24.6 of the judgment accurately reflected that. Paragraph 119 of the judgment, on the other hand, finds that the Claimant “did not feel very seriously undermined or humiliated by the announcement at the time, although he was upset at the announcement being made publicly without prior notification to him about it”.

[63]We accept that therefore the focus must be on him feeling upset rather than feeling undermined. This does not in our view, however, mean that the Employment Tribunal have fallen into the error identified by the Court of Appeal in Chapman v Simon . Here there is a difference of degree that might well make a significant impact on compensation but this is not something of an entirely different character. Indeed the phrase “very seriously undermined” indicated that there had been some such impact albeit in a minor key.

[64]Furthermore we think the Employment Tribunal were entitled to apply the view they had formed of Dr Russell in another context to these circumstances as well. The Employment Tribunal is not required to sequester its findings one from another. Taking an overall view, as this Tribunal did, it is a perfectly proper approach to the task of finding facts and drawing conclusions from them to apply conclusions reached in one context to another.

[65]Accordingly we will dismiss both the appeal and the cross appeal. [1] Unhappily the extract at paragraph 278 of the judgment is not an accurate quotation. [2] Presumably “dismissal” is the missing word. [3] Presumably this should read “Claimant”. [4] Obviously “she”. [5] Presumably the word “no” is missing. [6] Chapman v Simon

[1994] IRLR 124