Appeal No. EAT/1455/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 7 May 2002

Before
HIS HONOUR JUDGE PETER CLARK
MR D J JENKINS MBE
MRS D M PALMER

MR C L HAMMOND	APPELLANT

COMMISSIONERS OF INLAND REVENUE	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR C HAMMOND
(the Appellant in
Person)
c/o 18 Colvin Gardens
Chingford
London
E4 6PF	
For the Respondent	MR I ASHFORD-THOM
(of Counsel)
Instructed by:
Inland Revenue 
Solicitors Office
(Corporate Services Group)
Somerset House
London
WC2R 1LB	

JUDGE PETER CLARK:
1.	This appeal, brought by Mr Hammond, the Applicant before an Employment Tribunal sitting at Stratford under the chairmanship of Mr B C Buckley on 26 – 29 September 2000, against that Tribunal’s decision promulgated with extended reasons on 19 October 2000, came on for preliminary hearing before a division of the EAT presided over by Mrs Recorder Cox QC on 11 May 2001.

2.	On that occasion, as appears from the learned Recorder’s judgment delivered that day, all grounds of appeal were dismissed save for one which did not appear in the original grounds.  At paragraphs 21 -26 of the judgment the point for our determination at this full appeal hearing is formulated in this way:  In his Originating Application and in his written closing submissions the Appellant raised a complaint of victimisation contrary to section 2 of the Race Relations Act 1976.  That point is identified as a live issue at paragraph 3 (v) of the Tribunal’s reasons, having been earlier identified at a directions hearing held before a chairman, Mr S M Duncan on 18 November 1999.  However, it is said, nowhere does the Tribunal adjudicate on that point.  Indeed, in setting out the applicable law at paragraph 4 of their reasons the Tribunal direct their attention to the Appellant’s complaints of unfair dismissal and direct race discrimination but not victimisation.  Plainly, failure to adjudicate on a live complaint would amount to an error of law, usually requiring the case to be returned to the same Tribunal for it to complete the job.

3.	However, as the Respondent points out through Mr Ashford-Thom, the Tribunal did in fact expressly reject the Appellant’s complaint of victimisation at paragraph 8 (f) of their reasons.  They say:

“We also find no substance to the allegation that the Applicant was dismissed because of race discrimination by Mr Saunders or victimisation because he had made earlier complaints of racial discrimination.”

It may be that at the ex-parte preliminary hearing, in the absence of the Respondent, the EAT simply overlooked that finding, which Mr Hammond tells us that he did not draw to the attention of the Tribunal on that occasion.  At all events, given the way in which the amended grounds of appeal dated 17 May 2001 are drafted, that express finding would appear to dispose of the remaining ground of appeal.  The Tribunal did adjudicate upon the victimisation complaint.  It was rejected.

4.	However, in a closely argued skeleton argument, developed in oral submissions, Mr Hammond invites us to consider whether, in dismissing the victimisation complaint perfunctorily, the Tribunal has provided adequate reasons so as to tell him why he lost on this point.  See Meek v. City of Birmingham District Council (1987) IRLR 250.  Mr Ashford-Thom submitted that we should not go on to consider that argument, the narrow point of appeal identified at the preliminary hearing having been shown to be factually misconceived.  However, we are persuaded by Mr Hammond that implicit in the preliminary hearing judgment is the proposition that the Tribunal failed to give adequate reasons for dismissing that part of his complaint which alleged victimisation.  Consequently we have considered the point, taking, as Mr Hammond put it, a benevolent view of the preliminary hearing judgment as a whole.  

5.	The Appellant commenced his employment with the Respondent in April 1989 as an Inspector of Taxes based at the Stratford district office.  That employment, which terminated in dismissal effective on 10 December 1998, was not without incident.  During that period the Appellant presented a number of Originating Applications to the Tribunal, alleging among other things, unlawful racial discrimination.  Those complaints amounted to protected acts for the purposes of section 2 of the Race Relations Act, of which his line manager, Mr Saunders, was aware.

6.	The material events leading to his dismissal, so the Tribunal found, were first an incident on 1 October 1998 when the Appellant went into Mr Saunders office.  Mr Saunders had been investigating an offensive so-called newspaper ‘spoof’ article relating to the Appellant.  The Appellant accused Mr Saunders of concealing evidence in relation to that article, suggested that he was being untruthful, spoke in a loud and threatening manner and then refused to leave the office when asked to do so by Mr Saunders.  That incident was witnessed by Mr Saunders’s secretary Mrs Travasso.

7.	Secondly, on 2 November 1998, the Appellant confronted the deputy officer in charge, Joe Cull, telling him off for “lying about a racist document.”  That incident was witnessed by a Miss Clare Green.  The Appellant later apologised to Mr Cull in writing for speaking to Mr Cull that way in front of another officer.  He believed that to have been a mistake.  

8.	On 13 November 1998 Mr Saunders held a ‘Conduct and Discipline’ interview with the Appellant.  He asked him about the incidents on 1 October and 2 November.  The Appellant declined to comment on those incidents, nor a further incident involving an accountant, Mr Powrozonik, on 4 September 1998.  Mr Saunders then sent a note of that interview to Mr Ripley in the personnel department.  Mr Ripley wrote to the Appellant and the Appellant replied on 8 December.  Having considered that response Mr Ripley made a recommendation of dismissal to Mrs Nicholson, a deputy director dealing with personnel matters.  Mrs Nicholson accepted that recommendation.  The Appellant was dismissed by letter dated 9 November 1998.  Against that decision he appealed unsuccessfully to Mr Carling, Director of the Inland Revenue, London.

9.	Thereafter the Appellant appealed to the Civil Service Board.  The Board found, on 25 May 1999, that the dismissal was not substantively unfair, but was procedurally defective in that Mr Saunders, as the principal complainant, ought not to have conducted the disciplinary interview.  The Board held that the Appellant had contributed to his dismissal to the extent of two thirds.  They directed that a compensatory payment ought to be made to reflect this degree of contribution, less 50% on the basis that had a fair procedure been followed there was an even chance that the dismissal would have been fair.  

10.	Pausing there, on the Appellant’s complaint of unfair dismissal the Employment Tribunal found the dismissal to be procedurally unfair for the reason given by the Board.  However, they went on to find that had a fair procedure been used a fair dismissal would have been inevitable.  Further, the Appellant had contributed to his dismissal by his own conduct to the extent of 100%.  It was the whole cause of his dismissal.  Consequently no compensation was awarded for unfair dismissal by the Tribunal.  

11.	Returning now to the Appellant’s complaint of victimisation, at paragraph 2.2 of the particulars served with the originating application he alleged that a formal complaint of victimisation, on the part of Mr Saunders, was made during the course of the internal dismissal proceedings.  At paragraph 6.2 of his written closing submissions to the Tribunal he said that in respect of his claims of discrimination and/or victimisation he relied upon his witness statement at paragraphs 125 (i) and 126 (ii).  Having looked at those extracts from his witness statement, it appears that the relevant allegation is at paragraph 126 (i) where he says this under the heading Alleged acts of victimisation:

“I contend that I was victimised by Mr Saunders during the Respondents’ disciplinary procedure for exposing serious procedural irregularities and unreasonable conduct on the part of Mr Saunders himself, in connection with my Originating Application of 9 April 1998 (the protected act).  I compare my position with that of Mr Powronznik, who also made a serious allegation of misconduct against Mr Saunders.  Mr Powronznik did not make an Application to an Employment Tribunal.”

12.	Thus, the Appellant alleged that he had done a protected Act and had been treated less favourably than a comparator, Mr Powroznik, who had not done a protected act.  The question then is whether such less favourable treatment was by reason of the protected act.  

13	As we have earlier observed, at paragraph 8 (f) of their reasons the Tribunal found no substance to the allegation that the Appellant was dismissed because of race discrimination or victimisation on the part of Mr Saunders.  Did the Tribunal provide adequate reasons for that conclusion?

14.	Mr Hammond correctly identifies the relevant questions for the Tribunal under section 2 of the 1976 Act as follows:

1)	Has the Applicant done a protected act as defined in section 2(1)(a) – (d)
2)	Has the employer treated the Applicant less favourably than it treated or would treat an actual or hypothetical comparator who had not done the protected act?
3)	Was the doing of the protected act by the Applicant an effective cause of the treatment complained of?  

15.	That analysis appears from the speeches in Nagarajan v. London Regional Transport (1999) ICR 877, a case to which the Tribunal was referred by Mr Hammond.  That case is also authority for the proposition that victimisation, as with direct discrimination, may be conscious or subconscious.  Dealing with each of those issues:
(i)	It is clear that the Tribunal accepted that the Appellant had done one or more protected acts; his earlier complaints of race discrimination to the Tribunal of which Mr Saunders was aware.
(ii)	there is no express finding as to whether or not he received less favourable treatment than his comparator, Mr Powroznik.
(iii)	however, clearly they rejected any link between the doing of the protected act or acts and the treatment complained of.
There was in their judgment no substance in the allegation.  Thus the claim failed, at the very least at the third stage of the enquiry.

16.	Did the Tribunal give adequate reasons for that conclusion?  Mr Hammond submits that they did not; there is no indication on the face of their reasons that they had correctly directed themselves as to the law, in contrast to their self-direction as to the law relating to unfair dismissal and direct race discrimination.  There is no indication that they posed and answered the questions raised by section 2 of the 1976 Act to which we have referred.  Mr Hammond relies on the Court of Appeal judgment in Martins v. Marks and Spencer plc (1998) ICR 1005.  He invites us to conclude, applying the approach of the Court of Appeal in Dobie v. Burns International Security (1984) ICR 812, 818G, that in light of the misdirection by the Tribunal this is a case in which their conclusion might be wrong, such that the case ought to be remitted to a fresh Tribunal for rehearing on the victimisation complaint.  

17.	In response, Mr Ashford-Thom points out that the victimisation claim was a ‘bolt-on’ to the complaint of racial discrimination.  That is certainly the way it appears to us in the Appellant’s closing submissions below.  Looking at the Tribunal’s findings of fact as a whole it is clear that they rejected, as being without substance, the suggestion that Mr Saunders actions had been motivated, consciously or subconsciously by either the Appellant’s race or the fact that he had done a protected act such as to influence the ultimate decision to dismiss on the part of the Respondent.  Neither had anything to do with the actions he took in the view of the Tribunal.

18.	We accept Mr Ashford-Thom’s submissions.  Whilst it is true that the Tribunal did not set out the law on victimisation, it is clear that there was no issue between the parties as to what the law was.  Mr Hammond had referred the Tribunal to Nagarigan particularly at paragraph 6 of his closing submissions.  The Tribunal, in these circumstances, wholly rejected the necessary causation element, as subsequently explained by the House of Lords in Chief Constable of West Yorkshire v. Khan (2001) IRLR 830, in that statutory tort on the facts.  They told the parties so.  Accordingly we are satisfied that the Tribunal gave sufficient reasons for their conclusion.  

19.	Even if it could be said that the Tribunal had failed in its duty to give adequate reasons, we are satisfied that the correct course would be to remit the case to the same Tribunal to fully state its findings on the victimisation complaint.  Mr Hammond has referred us to certain observations on remission made by Lord Denning M.R. in Retarded Children’s Aid Society v. Day (1978) ICR 437, 444B.  However those remarks relate to the need for further facts to be found on remission; that is not this case.  We are quite satisfied, on this Tribunal’s findings of primary fact, that were we to remit the case the result would inevitably be the same.  The victimisation complaint will be found to be of no substance.  It would fail.

20.	In these circumstances we shall dismiss this appeal.