Appeal No. UKEAT/0007/12/SM

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX

	At the Tribunal
	On 25 October 2012
Judgment handed down on 5 June 2013

Before
HIS HONOUR JUDGE HAND QC
MR M CLANCY
MR M WORTHINGTON

MR M WOODHOUSE	APPELLANT

WEST NORTH WEST HOMES LEEDS LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR S HEALY
(of Counsel)
Instructed by:
Morrish Solicitors LLP
Oxford House
Oxford Row
Leeds
LS1 3BE	
For the Respondent	MR C BREEN
(of Counsel)
Instructed by:
Ford & Warren Solicitors
Westgate Point
Westgate
Leeds
LS1 2AX	

SUMMARY
RACE DISCRIMINATION
Victimisation
The judgment of this Tribunal in Martin v Devonshire Solicitors [2011] ICR 352 should not be used as a template into which to fit the factual aspects of a case in which victimisation was alleged.  It related to exceptional circumstances and Employment Tribunals need to be cautious about regarding features such as a multiplicity of grievances and obsessive over-reaction by an employee as exceptional.  Here the Employment Tribunal had erred in regarding the instant case as “on all fours” with Martin; it was not and few cases will be.  The appeal was allowed and a finding of victimisation substituted.

UNFAIR DISMISSAL
Polkey Deduction
Having regard to the substituted finding of victimisation, the Polkey deduction appeal was also allowed and the deduction quashed.  If it had been necessary to consider the appeals on the merits, it would have been allowed on the basis that neither party had been given the opportunity to make submissions by the Employment Tribunal been remitted to the same Tribunal of a re-hearing on that point.

HIS HONOUR JUDGE HAND QC
Introduction
1.	This is an appeal by Mr Michael Woodhouse (“the Appellant”) from the judgment of an Employment Tribunal comprising Employment Judge Forrest, Ms Fawcett and Mr Lyons sitting at Leeds over fifteen days in June 2011.  The scale of the task facing the Employment Tribunal should not be underestimated.  It had over four thousand pages of documentary material to consider and it heard oral evidence from twenty-five witnesses.  It took two days to read into the material and there were ten days of oral evidence followed by three days of deliberation and the delivery of an oral judgment on 30 June 2011.  Written reasons were sought and a written judgment was sent to the parties on 22 September 2011.  By it, the Employment Tribunal upheld some of the claims made by the Appellant against Leeds City Council, the First Respondent, but dismissed his claims of race discrimination, harassment and victimisation against West North West Homes (Leeds) Limited, the Second Respondent and Respondent to this appeal (“the Respondent”).  The Employment Tribunal also found that the Appellant had been unfairly dismissed and came to the conclusion that compensation should be reduced by 90%.

2.	  The Appellant has been represented by Mr Sam Healy of counsel and Mr Carlo Breen of counsel appeared for the Respondent.  Both had appeared below.  The appeal by the Respondent is limited to two aspects of the judgment, namely the rejection of the claim that the dismissal was an act of victimisation and against the reduction in compensation to 10% of the full value of the claim.

3.	  We are therefore not concerned with the findings against Leeds City Council and Mr Chapman, who was the third Respondent, save that the Employment Tribunal adopted what might be described as an “holistic” approach to the case (see paragraph 6 of the judgment) and a similar approach was urged on us by Mr Breen of counsel.  Although the appeal is concentrated on the dismissal he submitted any consideration of that part of the history has to be set into a broader context and it is therefore necessary to consider the broad sweep of the case over a period of about seven years.  In particular, although the focus of the appeal could be seen as more limited it is important, Mr Breen submitted, not to lose sight of the overall perspective of a more or less continuous cascade of complaints about his treatment by the Respondent made by the Appellant over a period of more than four years.  From 2005 onwards the Respondent was continuously dealing with grievances (nine in total) and responding to complaints made to the Employment Tribunal (also nine in total).  We agree that a broad perspective is helpful and, accordingly, we will attempt to summarise the narrative and, at the same time, examine briefly the conclusions of the Employment Tribunal, irrespective as to whether or not they are the subject of the appeal.

The origin of the litigation
4.	The history of the relationship between Leeds City Council and the Respondent is explained at paragraph 15 of the Employment Tribunal’s judgment and we need say no more about it here than that by October 2003 some considerable proportion of the housing stock of Leeds City Council was being managed by the Respondent.  The Appellant, who had originally been an employee of Leeds City Council, was by then working for the Respondent as a Project Officer.  He had a working relationship with Mr Chapman, who was employed by Leeds City Council as its principal surveyor.  At a meeting in October 2003, the Appellant alleged that Mr Chapman had told him that he had “an attitude problem”.  The Appellant, who is of black ethnicity, regarded this as “a racist remark”.  He made no formal complaint at the time.  Over the following period, however, he came to feel that his manager, a Mr Walker (and we should make it clear not the same Mr Walker featuring later in the history), who had been present at the meeting in October 2003, had not given the Appellant adequate support and that he, Mr Walker, was also guilty of racist attitudes.

5.	At paragraphs 27 to 35 of the judgment are a series of findings about Mr Chapman’s conduct, not only in October 2003, but also at the end of 2006 and in 2007.  That there had been some sort of investigation by Leeds City Council into at least some of these matters is borne out by paragraphs 28 and 33 of the judgment.  The Employment Tribunal made findings of racial harassment against Mr Chapman (see paragraphs 28 and 32) and held that the conduct of the investigation by Leeds City Council and the conclusions reached by it, namely that there had been no discrimination by reason of race, itself amounted to direct race discrimination.

The first grievance
6.	Ultimately, the Appellant raised a grievance about these exculpatory conclusions reached by Leeds City Council in October 2005.  By then he had been promoted to Principle Regeneration Officer; as we understand it both posts involved management responsibilities and the Employment Tribunal recorded at paragraph 10 of the judgment that “he was always well regarded by his employees”.  This grievance was upheld in part, although not in relation to discrimination or bullying.  The Respondent’s grievance procedure provides a three-stage process.  At the first stage of this grievance Peninsula Business Services Limited, a consultancy, which had a business relationship with the Respondent, was engaged to provide the input of Mr Barrett, one of its consultants.  He prepared a report, which the Appellant subsequently characterised as inadequate, but the Employment Tribunal found that it was neither inadequate nor had it been wrong and unreasonable for the Respondent to accept it (see paragraphs 36 and 37 of the judgment).

7.	The Employment Tribunal, however, regarded this first stage as having been “a missed opportunity” (see paragraph 38 of the judgment).  This grievance went to a second stage.  The investigating officer was Ms Wanless.  Her conduct of the second stage of the grievance procedure between August 2006 and October 2006 was found by the Tribunal to be “innocent of any taint of discrimination on racial grounds, harassment or victimisation” (see paragraph 39 of the judgment).  As Mr Breen pointed out to us, this was to be a formulation reiterated by the Employment Tribunal in its examination of nearly every stage of the series of grievances, which it was considering.

8.	The Employment Tribunal found that, although it disagreed with her conclusion, in her conduct of the second stage of the first grievance, Ms Wanless had not acted unlawfully, nor had she deliberately delayed the third stage, which was not completed until August 2007, and so, likewise, her conduct in relation to the third stage had not been unlawful (see paragraphs 40 and 41 of the judgment).    The Appellant, of course, had to wait another six or so years before he was vindicated in respect of the treatment of him by Messrs Chapman and Mr Walker and the Employment Tribunal obviously took a different view to that formed by Ms Wanless.

9.	But this was understandable thought the Tribunal.  The Tribunal says this at paragraph 41:-

“We comment that her understanding of harassment is limited because, in giving weight to the intention of the harassor she ignores the effect on the recipient.  However, that lack of understanding on her part does not mean that she was influenced by Mr Woodhouse’s racial origins, or that she reached that conclusion because she was victimising him for raising the complaint of discrimination, or that she was harassing him on racial grounds in reaching that conclusion.  We have come to a different conclusion from her, after fuller consideration of the evidence relating to the incident with Mr Chapman, but we bring a different and legal perspective to bear on it.”

Ms Wanless had refused to look at some diaries which the Appellant wished to produce at the second stage meeting.  Despite the fact that the Employment Tribunal did not know the contents of the diaries, it came to the conclusion that although this was another “missed opportunity” (see paragraph 43 of the judgment) there had been no “less favourable action on racial grounds towards [the Appellant] or that it constituted racial harassment or that she victimised him in this respect for having brought forward his complaints of racism.”  As with all his other grievances, the Appellant took this to the third and last stage of the procedure but Councillor Alison Lowe and her third stage panel confirmed the decision of Ms Wanless and the Employment Tribunal regarded that disposal as not open to criticism and not calling for any further explanation  (see paragraph 44 of the judgment).

The second grievance
10.	In the meantime, in December 2006 the Appellant had been told that Mr Chapman had made racist comments about him.  This information came from a colleague called Ms Meskouri, who said that she had heard Mr Chapman saying that the Appellant “had only got his job because he was black”.  It also transpired that Mr Chapman had a habit of calling colleagues by nicknames such as “ladyboy” and “Bin Laden”.  The Appellant commenced a second grievance in January 2007.

11.	The Tribunal, in the proceedings between the Appellant and Leeds City Council, found that Mr Chapman had made these remarks and that they amounted to racial harassment (see paragraph 32 of the judgment).  The Employment Tribunal also found that the subsequent investigation by Leeds City Council into that grievance was inadequate to the extent that the burden of proof shifted and an explanation was called for, which explanation the Tribunal found to be unsatisfactory.  Consequently, the Employment Tribunal upheld the complaint of direct race discrimination against Leeds City Council (see paragraph 34 of the judgment).

12.	Investigations conducted by Leeds City Council at the first stage of the second grievance caused a delay in the investigation being conducted by the Respondent at the second stage.  The second stage was not started by the Respondent until July 2007 and not completed until the end of January 2008.  Initially Ms Thorne, who was considering the grievance, limited the scope of her inquiry to a period of three months before the grievance was lodged (as apparently the grievance procedure required) but when the Appellant protested she broadened the scope to the period of twelve months before the complaint was lodged.  Even so the earlier complaints made about the behaviour of Mr Chapman were never considered. The Employment Tribunal concluded that the delay did not amount to race discrimination, victimisation or harassment (see paragraph 45 of the judgment) nor did the limited scope of the inquiry (see paragraph 46 of the judgment).  But the Employment Tribunal was critical of the conclusions reached by Ms Thorne.  Firstly, they found it difficult to understand why she accepted that Mr Chapman had made the “unambiguously racist comment” that the Appellant had “only got the job because he was black” in January 2007 but rejected evidence from the same source that the same or similar had been said repeatedly over the previous six months.  Secondly, the Employment Tribunal could not understand the distinction she made between that comment and other derogatory comments, which she found not to be racist because Mr Chapman made them to others as well as to the Appellant (see paragraph 47 of the judgment).  Nevertheless the Employment Tribunal concluded that her reasoning whilst it might be logically imperfect was “an honest view” and was not “affected by any taint of racism”.  But it was acknowledged that (see paragraph 48 of the judgment):

“… it left Mr Woodhouse with, in our view, an understandable (at the time) sense of grievance that the full range of his complaints against Mr Chapman had never been properly investigated and had not been fully upheld.”

13.	Ms Thorne’s findings were endorsed at the third stage of the second grievance in June 2008 by Councillor Lowe, who the Employment Tribunal found to have been “strongly sympathetic towards the Appellant” albeit “constrained by her position at stage 3 by the Respondent’s procedural rules which she loyally followed”.  The Employment Tribunal found that in respect of this stage of this grievance the Appellant had “misheard or misinterpreted” Ms Lowe and that she had not made any “disparaging comment” about his complaint (see paragraphs 49 and 50 of the judgment).  Consequently her conduct of this stage of the grievance was not racially motivated.

The third, fourth and fifth grievances
14.	The Appellant’s health had been adversely affected; he was off work with stress between February 2007 and September 2007 and in that period, namely in May 2007, he lodged his first claim in these proceedings.  When he returned to work in September 2007 he lodged his third grievance.  This was followed shortly afterwards by a fourth grievance which he lodged in October 2007.  The following day he lodged his second ET1 form.

15.	These third and fourth grievances were about delay in dealing with his previous grievances, about complaints he made in relation to sick pay, about a suggestion that he be considered for referral for Cognitive Behavioural Therapy, which had been made in July 2007, about the reallocation of duties on his return to work and about his returning to different duties.  By the end of November 2007, the third and fourth grievances had been investigated and rejected by a Ms Austin of the Human Resources Department.

16.	On 15 January 2008, the Appellant lodged his third set of proceedings in the Employment Tribunal and in March 2008, he submitted his fifth grievance.  This complained of the allocation of staff and duties and of continued victimisation and harassment because he had made the previous complaints.  Because Mr Evans, the Head of Customer Services was considering the third and fourth grievances at stage two it was decided that he should, at the same time, consider the fifth grievance.  In total he had to consider some 22 complaints   His investigation and hearing in respect of all three grievances took place between February 2008 and June 2008 but it was not until October 2008 that he published his decision that rejecting all three.

17.	The third stage was once again conducted by a panel chaired by Councillor Lowe.  Her panel rejected all complaints and it seems her sympathy had evaporated by this time because the rejection was in the following uncompromising terms (taken from the decision letter - see paragraph 20.32 of the judgment):

“Neither you nor your Trade Union Representative put forward any evidence which either substantiates, or even suggests, a link between either your race or your previous grievances and the specific matters which are the subject of your complaint.  Therefore, the panel have concluded that the allegations of race discrimination/victimisation are completely without merit and have not been made in good faith. … It is clear from what was said during the appeal by both yourself and your Trade Union Representative, Mr Stephen Clark, that you no longer have trust or confidence with WNWHLL and that you perceive that this relationship has now broken down.  Whilst it is extremely disappointing, that is not an issue which is within the remit of the panel to explore further.”

18.	One of the matters of which the Appellant had complained (as part of the third grievance) was the suggestion that it be investigated whether or not Cognitive Behavioural Therapy might be helpful in his case.  He alleged in these proceedings that this constituted race discrimination.  Although the Employment Tribunal recognised it might be a natural reaction on the part of the Appellant to think this suggestion implied that his mental health might be impaired, the Employment Tribunal regarded the suggestion as an attempt by the Respondent to be helpful; it was after all only a suggestion that the possibility be investigated.  The Employment Tribunal regarded the allegation that this constituted race discrimination, victimisation or harassment as “fanciful” (see paragraphs 51 and 52 of the judgment).  This reflects the trenchant remarks made by Councillor Lowe (on behalf of her panel) and marks something of a watershed in the Employment Tribunal’s narration of the history.  Up to then it had expressed some sympathy for the Appellant’s situation; from then on the adjectives used reflect a less sympathetic attitude.

19.	Another aspect of these grievances had been the Appellant’s complaint that after six month’s absence through illness his pay had been reduced by half and no discretion had been exercised in his favour.  The Employment Tribunal accepted that the only time discretion was ever exercised to continue full pay after more than 6 months of sickness absence was in cases of terminal illness and therefore did not regard the rejection of this complaint as amounting to race discrimination (see paragraph 53 of the judgment).   Nor was there anything for the Respondent to explain further about the delay in restoring full pay after his return nor the fact that he was not given back all his old duties or clients nor in the delay in returning documents or notes to him nor in the misdating of correspondence (see paragraphs 54, 55, 56, 57 and 59 of the judgment).

20.	Of a somewhat different character was the allegation that Ms Thorne had asked the Appellant whether he thought that he might have applied “undue pressure” on Mr Chapman, “which may have provoked Mr Chapman’s comment”.  The Employment Tribunal seems to have accepted that this had happened but concluded that this was not objectionable because it was appropriate and said (see paragraph 58 of the judgment):

“The words used by Mr Chapman may have carried a racial connotation or they may not, depending in part on whether they were provoked or not.  The questioning was appropriate and proportionate; we cannot see anything which calls for an explanation in this situation.”

No doubt aspects of the above could be the subject of further debate; it may open to question as to whether they command universal acceptance.  But this part of the judgment is not subject to any appeal and the passage may only be notable as confirming that the sympathy of the Employment Tribunal appears to have ebbed away by this point.

21.	This is also evident in its analysis at paragraph 60 of the judgment of another of his allegations investigated under the umbrella of the third, fourth and fifth grievance, namely that he had been deliberately saddled with the management of a difficult colleague, a Ms Kim Towey.  The Employment Tribunal described this as:

“… a clearly contrived allegation with no objective basis in reality at all.”

The sixth and seventh grievances
22.	In late July 2008, there was a telephone conversation between the Appellant and Ms Carol Brook, a female colleague, which resulted in cross-allegations being made by the Appellant and Ms Brook about intimidation and hostility.  Subsequently, Ms Brook raised a complaint against the Appellant and the matter was investigated.  The Appellant’s account was accepted, but it was suggested that he should apologise to Ms Brook.  He refused.  In September 2008, he went off sick again and he was off work until 3 December 2008.  Meanwhile on 24 November 2008, the Appellant submitted his fifth complaint to the Employment Tribunal.

23.	Just before the end of 2008, the Appellant submitted a sixth grievance complaining both about Ms Brook and the subsequent investigation into that incident by Mr Carlill.  The Employment Tribunal commented as follows at paragraph 66:-

“We are not surprised that Mr Woodhouse was unwilling to apologise; indeed, he did not just take offence at this suggestion; he believed it was motivated because of his racial origins; that this was an act of discrimination by Mr Carlill against him.  He believed that Mr Carlill was effectively “setting him up” and that if he made such an apology, he would lay himself open to disciplinary action should Miss Brook subsequently make a complaint about his action.  We are not persuaded that there is anything in this exchange that calls for an explanation, but if we are thought wrong on that, having heard Mr Carlill’s explanation, we accept it.  He says that he was simply trying to sooth troubled waters.  There had evidently been a row and some misunderstanding between two employees; if Mr Woodhouse could take the relatively easy step of expressing regret for any distress that he had inadvertently caused Miss Brook, that would be an end of it.  It would be easier all round if Mr Woodhouse could “be a man” and do so.  We see nothing offensive in that comment, and nothing that indicates any element of race, victimisation or harassment.”
24.	When all of this was raised as the sixth grievance by the Appellant in September 2008 it was subsequently investigated by a Miss Rhodes, who is described by the Employment Tribunal as “an independent investigator employed by Eversheds, a firm of solicitors.  In the meantime the Appellant submitted his sixth ET1 form.

25.	Ms Rhodes reported in writing, apparently at some length, in April 2009.  She rejected the grievances and although the decision was formally communicated by Mr Charters, the Head of Finance, it was essentially hers.  The matter then proceeded to the second stage to be conducted by a newly appointed manager, Mr Walker (a different person to the man with the same name, who had been involved earlier in the narrative).   But the Appellant perceived problems over the conduct of the management team and what he saw as interference with witnesses.  He had been asked initially to supply a list of questions, which he intended to put to witnesses, although when he refused the request was withdrawn.  He then learned that the witnesses had been interviewed by Mr Charters and he withdrew from the process.  The grievance continued to be investigated and considered in his absence and it was ultimately rejected.

26.	The Appellant submitted his seventh grievance on 20 August 2009.  This complained about the conduct of management in relation to the sixth grievance.  By September 2009, the Appellant was again off work with a stress-related illness and on 9 October 2009 he submitted his sixth ET1 form.

27.	During this absence through illness, there were two developments. Firstly, the third stage hearing of his sixth grievances was combined with the seventh grievance and dealt with by Councillor Lowe and her panel.  The panel asked for grounds of appeal.  The Appellant refused to supply them on the basis that it was not part of the procedure.  There were hearings in December 2009 and February and March 2010 but in April 2010 his grievances were rejected on the basis that although Mr Carlill could have handled the matter differently there was no evidence of race discrimination or victimisation.  The Employment Tribunal accepted, as did Councillor Lowe’s panel, that there had been no interference with witnesses and that it had been perfectly reasonable to seek grounds of appeal.

The eighth and ninth grievances
28.	The second development during the Appellant’s absence in late 2009 was that the funding of the department in which he worked was cut and the structure altered.  Consequently, on the day that he returned to work, 18 December 2009, the first thing that he had to undertake was an interview for the post of Project Manager.  As we understand it this was a series of interviews with managers at that level to determine who should be retained at that level, there now being insufficient funds to keep all the managers.  The Appellant was not successful. Apart from the fact that he had just been absent through illness for three months, in his opinion in the period before that absence he had not been doing the full range of his work and he had been “systematically de-skilled”.

29.	A meeting was arranged for 11.00 a.m. on 23 December 2009 to discuss the Appellant’s future.  The manager was not able to attend at that time.  He came later but the Appellant had left by then and gone home.  The Employment Tribunal found that the manager had been unavoidably detained at another meeting.  As a result the Appellant immediately submitted his eighth grievance complaining about cancellation of the meeting.  He also complained about having been “de-skilled” and about the Respondent having manipulated the situation so as to manoeuvre him into selection for redundancy because of his previous allegations of race discrimination, victimisation and bullying.

30.	When the Appellant returned after the Christmas and New Year break, he asked for a phased return to work.  This was refused.  When he was paid in late January, he was still paid on half pay, which had been appropriate whilst absent through illness.  He was not paid at the full rate or in respect of any arrears until February 2010.  Consequently, on 17 January 2010 the Appellant submitted his ninth grievance, which raised the refusal to permit a phased return to work and the failure to pay him at the correct rate.  In 2010 the Respondent changed the grievance procedure to require any appeal to be supported by written grounds.

31.	Both the eighth and ninth grievances were considered at the first stage by Ms Bleasdale.  She started her investigation on 1 March 2010.  It took some time for her to investigate and her decision was not sent out until August 2010.  She rejected his complaint that he had been deskilled as part of a deliberate plan to get rid of him and the Employment Tribunal said at paragraph 72 of the judgment:

“It was probably inevitable that, following such a period of sickness absence, Mr Woodhouse’s performance at interview would be adversely affected.  He would not have all the issues immediately at his fingertips, as he might well have done had he been at work.  We can see nothing in the fact that he was not offered a job that indicates it was influenced by racism, victimisation or harassment to any extent.  We find the suggestion that any deskilling on his part had been deliberately engineered by the Respondents fanciful.”

32.	Nor was there any basis for the allegation, rejected by Ms Bleasdale, that the failure of Mr Vickers to attend the meeting on 23 December 2010 on time or return a call, if he had been requested to do so, which was by no means certain, had been a deliberate slight giving rise to an inference of racism.  Likewise the failure to restore full pay and pay arrears until February and the refusal of a phased return to work were rejected as direct discrimination victimisation or harassment, a conclusion, which the Employment Tribunal endorsed.  The former could be explained by the fact that the Appellant had returned to work without notice, inclement weather and internal delays.  As to the latter, the Employment Tribunal thought that, in effect, the Christmas and New Year break constituted a phased return to work but, if the request had been refused, all management had done was to follow the established policy of not having a phased return to work.

The tenth grievance
33.	As a result of his failure to secure the post of Project Manager, the Appellant had become supernumerary and was given ad hoc tasks whilst attempts were made to find him alternative work.  There was some talk of voluntary severance.  On 27 April 2010, Ms Austin of the Human Resources Department, wrote an erroneous letter about the Appellant having refused a proposal for voluntary severance; this was simply wrong because he had not refused anything.

34.	On 12 May 2010, there was a meeting to discuss the Appellant’s future, but it was cancelled at the last moment.  Two days later the Appellant submitted his tenth grievance complaining of the cancellation of the meeting, about the erroneous voluntary severance letter of 27 April 2010, that he had been told that any further sickness absence would result in his position being considered under stage three of the sickness attendance policy and that he was the only former Project Manager, who had been declared supernumerary. Mr Beynon considered and dismissed this tenth grievance in September 2010.  This rejection was endorsed by the Employment Tribunal; the allegation that the letter referring to an offer of voluntary severance, when none had been made, could amount to discrimination was regarded by the Employment Tribunal as “bizarre”; it was plainly an error.  The letter threatening Stage 3 of the absence procedure had never been sent.  The fact that the Appellant was the only former Project Manager declared supernumerary was explicable by the fact that one manager had retired and the other had been seconded to other duties because of his experience at a higher level.

The grievances – the overall picture
35.	At paragraphs 85 and 86 of the judgment the Employment Tribunal reminded itself that the total is sometimes greater than the sum of its parts and stepped back to look and see whether there was an overall pattern and concluded that there was and identified it as being:

“85. … that, after the first two grievances when Mr Woodhouse’s complaints had some substance, Mr Woodhouse repeatedly brought forward empty allegations without any proper evidential basis or grounds for his suspicion; that these were investigated thoroughly and carefully by the Second Respondent, who decided on objective evidence, that they had no substance; Mr Woodhouse then pursued those grievances through to the second and third stages, persistently refusing to accept that there was any reason for the rejection of his grievances, other than that those investigating, whoever they happened to be, and whether they had any history with the organisation, or indeed were independent of it, were motivated by his racial origins in rejecting them, that the rejection was because he had earlier made complaints of racism, or that the rejection was itself an act of racial harassment.  Indeed, the very fact of the subsequent rejections came, in turn, to fuel Mr Woodhouse’s conviction that he was the victim of a pattern racism perpetuated at every level throughout the organisation.  Any Manager who ruled against him in connection with the grievance was themselves tainted with racism, right through to consideration at stage 3 by Ms Lowe and her panel.
86.	That conclusion of ours was effectively shared, save for our findings in relation to the first two grievances, by the management of the Human Resources Department of the Respondents. …”

In short, although there had been shortcomings in relation to the way that the grievances in relation to Mr Chapman had been investigated and decided, as to the rest of the allegations, after “stepping back” the Employment Tribunal entirely agreed with the Respondent’s approach.

The suspension and dismissal
36.	On 28 May 2010, the Appellant submitted his seventh claim to the Employment Tribunal.  Four days before that, on 24 May 2010, the Appellant and Mr Vickers, his line manager, had an informal discussion.  The Employment Tribunal noted that there was some dispute about what was actually said in this conversation, which had lasted for about 30 minutes.  At paragraph 87 of the judgment the Employment Tribunal found:

“There was subsequently some dispute between the parties over the precise words attributed by Mr Vickers to Mr Woodhouse, when Mr Vickers was subsequently asked for his account of the meeting some weeks later.  It maybe, as Mr Woodhouse maintains, that he did not expressly use the words “exit strategy” or “institutional racism” to describe the organisation.  Nevertheless, we are persuaded that Mr Woodhouse’s plans for his future after he had left the organisation were discussed, and that the level of dissatisfaction on racial grounds he expressed with the organisation was profound and applied to every level.  We are satisfied that the views expressed by Mr Woodhouse at the meeting were aptly summarised by words used to describe them by Mr Vickers, including “exit strategy” and “institutional racism.”

This is reiterated at paragraph 89 of the judgment.

37.	Subsequently, Mr Vickers reported the content of this discussion to the Head of Human Resources, Ms Nicholson, via two e-mails sent on 5 July 2010 and 8 July 2010 in terms of the Appellant (see paragraph 20.48 of the judgment):

“… saying he had lost faith in the organisation, that he was only staying in order to fight his cases.”

38.	Having discussed the position with a director of the Respondent, Ms Nicholson read through all the material and, as the Employment Tribunal put it at paragraph 20.49, she:-

“… was concerned that, if Mr Woodhouse really was as disaffected as his remark showed, had so little faith in the organisation, then he could not really remain as an employee.  She was unsure what procedure the organisation could follow to resolve the issue: the disciplinary procedure was inappropriate, since it was not a case of misconduct; nor was it the case that WNWHLL had lost trust and confidence in Mr Woodhouse; rather, it was the other way round.  She took advice from solicitors; she decided that a formal hearing should be held, following the model of the disciplinary procedure; that Mr Woodhouse should be invited to attend; should be given the information the organisation was relying on beforehand; should be given a fair opportunity to put his case; and should be warned that his employment was at risk.”

39.	By August 2010, the Appellant was absent through illness again.  He had reached stage two of the sickness absence policy and sometime earlier, in February 2010, had been referred to Occupational Health, who had reported in these terms:-

“The significant breakdown in working relations between an employee and the organisation is likely to result in ongoing high levels of absence for the employee.”

40.	As a result of the absence, which started on 2 August 2010, a further report was commissioned from the Occupational Health department.  This said:-

“Ongoing negative perceptions of work are maintaining [the Appellant’s] anxiety condition and if they remain unresolved his stress levels are likely to periodically rise again to a level where he would feel unable to continue at work.  His perceptions in this regard would tend to define the occupational prognosis.”

The report also referred to “a number of deep-seated and complex issues linked with his past and current experiences with WNWHLL” (see paragraph 20.51 of the judgment).

41.	As a result of this intelligence Ms Nicholson took legal advice about the extent to which the Appellant was disaffected.  As the Employment Tribunal put it at paragraph 20.49 of the judgment she was concerned whether an employee “as disaffected as his remarks showed” and who “had so little faith in the organisation … could not really remain as an employee.”  She was unsure as to the procedure to follow; this was not a case of misconduct and it was not the Respondent who had lost trust and confidence in the Appellant “it was the other way round”.

42.	In the result the Appellant was invited to a hearing on 10 September 2010 at the office of the solicitor appointed to conduct the hearing.  The letter inviting his attendance was written in these terms:-

“The purpose of the hearing is to discuss your ongoing employment relationship with West North West Homes Leeds.  A potential outcome of the hearing may be your dismissal with pay in lieu of notice.”

The Appellant was placed on what was called “precautionary suspension”. The Employment Tribunal expressed unease as to the terms of this letter, which is described at paragraph 86 as “a highly unusual, indeed extraordinary document.”  The Employment Tribunal goes on to say that it “certainly calls for an explanation”.  Whether this is simply an expression of how unusual the Employment Tribunal found the letter or it is used in the technical sense of invoking the “reverse burden of proof”, is not clear.  The Employment Tribunal expands on this as follows:

“Apart from the central feature of it, that the Respondents are inviting Mr Woodhouse to a meeting at which his dismissal may be considered, some of the relatively minor aspects of the letter are themselves potentially threatening and call for an explanation.  For example the meeting is to be held at the offices of Solicitors, rather than the Respondent’s own offices and Mr Woodhouse is asked to bring with him any property of the Respondents which he had retained.  Those may reasonably be thought to give an indication that dismissal is not simply a matter to be considered, but is the likely outcome of the meeting.”

43.	Not surprisingly, the Appellant asked a number of questions and these resulted in a letter from Ms Nicholson dated 3 September 2010 which said:-

“The purpose of the hearing is to discuss your ongoing employment relationship with WNWHLL and whether a productive employment relationship is sustainable going forward.  In considering this matter, regard will be had to:
(a) Your recent meeting with Michael Vickers on 24 May 2010;
(b) Your declaration on various occasions that you have lost trust and confidence in WNWHLL and its senior staff; and
(c) The numerous allegations you have made about numerous members of staff over the last 5 years.”

The letter went on to explain that the hearing was being held at a solicitor’s office because there were no suitable rooms available at the Respondent, but that (see paragraph 20.53 of the judgment):-
	
“… it was not a disciplinary hearing, there was no formal procedure, but they would mirror the disciplinary hearing process.”

The meeting was postponed and rearranged for 4 October 2010.  About ten days before, the Appellant received a bundle of documents, comprising transcripts of various grievance meetings, together with the two e-mails sent by Mr Vickers, to Ms Nicholson on 5 July 2010 and 8 July 2010.

44.	When the meeting started on 4 October 2010, the Appellant, together with his trade union representative, protested at the nature of the meeting and argued that if, as had been asserted, it was to mirror the disciplinary procedure, then there should be an investigation and various people should be interviewed.  As a result, the hearing was adjourned and later both the Appellant and Mr Vickers were interviewed.  The hearing started again on 21 October 2010.  In the meantime, the Appellant had submitted his eighth ET1 form on 11 October 2010 and, more significantly perhaps, he was interviewed once more for the post of Project Officer.  This time he was successful.

45.	At the hearing Ms Nicholson, the head of Human Resources, argued that the Appellant had clearly lost trust and confidence in the organisation, that employees had been distressed about the allegations of racism and that it was time for his employment to end.  The Appellant accepted that he had lost trust and confidence in a number of individuals, who could be said, in effect, to comprise senior management, but that he still had confidence in the organisation.  The Employment Tribunal thought these “protestations were half hearted and carried little weight, in context” (see paragraph 92 of the judgment).

46.	The meeting had been chaired by Mr Walker, the head of Tenancy Management at the Respondent.  He concluded the Appellant should be dismissed and wrote to say so in a letter dated 27 October 2010.  In that letter he expressed himself in these terms:-

“That you have lost all trust and confidence in WNWHLL and that that has been the position for some considerable time.  I have considered whether there can be a sustainable working relationship going forward.  I do not consider that there can be.  It is clear from both your own statements and occupational health advice that your view of the organisation would only change if your allegations for discriminatory conduct are accepted and that WNWHLL operates, in your words, a discrimination-free environment.  WNWHLL considers that it does offer a discrimination-free environment.  Your numerous allegations of discrimination have been taken seriously, but were ultimately not upheld following thorough investigations.  I note that on occasion some of the panels have found that particular actions were not satisfactory, but that did not amount to discrimination.  I do not believe that there can be a sustainable working relationship going forward.”

47.	The Appellant was not required to work his notice and was to be paid twelve weeks in lieu of notice with his last day of employment being 28 October 2010.  On 11 November 2010, the Appellant submitted his ninth complaint to the Employment Tribunal.

48.	He appealed against his dismissal asking that the post of Project Officer should be held open for him pending the outcome.  The Respondent was not able to accede to that request.  By then, the Appellant had become ill again and as a result the appeal was not heard until May 2011, when it proceeded in his absence, although he was represented by a trade union official.  His appeal was rejected, the appeal panel finding (see paragraph 20.60 of the judgment:-

‘The relationship between you and WNWHLL has irretrievably broken down and trust and confidence no longer exists between the parties.’

The Employment Tribunal’s conclusions
49.	At paragraph 21 of the judgment the Employment Tribunal had set out the provisions of the Race Relations Act 1976 (“RRA”) with this preamble:

“So far as the complaints of race discrimination, racial harassment and victimisation are concerned, the statutory provisions are set out in the RRA.  We are aware that Mr Woodhouse’s dismissal, and the subsequent rejection of his appeal, occurred after the Equality Act 2010 came into force on 1 October 2010.  We do not set out the provisions of the Equality Act in detail, if only because there are no significant differences; there is a difference in relation to the burden of proof for the claims of victimisation only.”

This was consistent with the view expressed in paragraph 4 of the judgment whether Employment Tribunal had said:

“Since Mr Woodhouse’s dismissal occurred after 1 October 2010, the claims of race discrimination, victimisation and harassment which relate to it (and to the subsequent rejection of Mr Woodhouse’s appeal against dismissal in May 2011) fall to be dealt with under the Equality Act 2010.  As it turns out, in view of our findings of fact, nothing turns on the difference in wording between the two statutes.  Nor do we need to consider what might be a difficult question of the precise effect of the transitional regulations which introduced the Equality Act.”
 
We will need to come back to this later in this judgment.

50.	At paragraphs 92, 93 and 94the Employment Tribunal say this:

“92. …  Mr Woodhouse maintained nevertheless that he had always done his job properly and would continue to do so; that was never challenged by the Respondent, and indeed, never has been challenged by the Respondent.  At no stage, has any Manager expressed, either in any of the grievance proceedings or to us in evidence, any doubt or reservations about Mr Woodhouse’s abilities when performing his job.
93. Passing reference is made at the end of the transcript about the consequences of Mr Woodhouse’s behaviour in raising his various allegations for the organisation; the distress that that had caused other employees; and to the risk to the organisation of his remaining in employment with that antagonistic attitude towards the organisation; but that is not the substance of the meeting and does not reflect the substance of the reasons of the Respondent in dismissing him.  Much of the meeting is taken up with the comments of Mr Woodhouse and the context in which they were made, which is of course the various grievances he had taken over the preceding years.
94. Having read the transcript of that meeting and heard the various witness’ evidence, we find that the various management witnesses credible in their evidence when they said that it was the extent of Mr Woodhouse’s loss of trust and confidence in the organisation which concerned them and which led Mr Walker to dismiss Mr Woodhouse after the conclusion of the meeting.  They were driven to adopt the process followed outside any normal procedure because the situation was unprecedented.  There was no procedure that covered it.  We have said above that the Respondent’s actions in first suspending and subsequently dismissing Mr Woodhouse certainly call for an explanation from the Respondents.  We are persuaded by the witness’ explanation to find that their decision to suspend and subsequently dismiss Mr Woodhouse was not taken on racial grounds to any extent.  We find that a comparable employee, who had evinced similar profound and long-standing lack of faith by submitting similar ill-founded grievances, but without any racial connotation, would have been similarly treated.  We find these were not acts of direct discrimination, nor were they acts of harassment on racial grounds.”

51.	The Employment Tribunal then turned its attention to the question of victimisation and asked itself this question at paragraph 95:

“Was Mr Woodhouse victimised, treated less favourably than others would have been treated when he was suspended and then dismissed, by reason that he had made repeated complaints of race discrimination to the Second Respondent?”

The suspension had occurred before 1 October 2010 and at paragraph 96 of the judgment the Employment Tribunal recognised that might require a different approach to the burden of proof than would be the case in respect of the dismissal, which occurred after 1 October 2010.  In reality, however, the Employment Tribunal thought that in both instances there would need to be “clear and compelling evidence” that there had been no victimisation.

52.	In fact the Employment Tribunal resolved the issue of victimisation against the Appellant by drawing a distinction between “the context in which various comments were made and Mr Woodhouse’s various grievances themselves” (see paragraph 97 of the judgment).  This led them to the conclusion that the instant appeal was “on all fours” with Martin v Devonshire’s Solicitors [2010] UKEAT 0086/10 and to explain the distinction in this way (see also paragraph 97):

“We are persuaded on the evidence that another employee who had made non - racial grievances would have been treated in the same way.  The factors which stand out for us in this case are not simply that grievances were repeatedly made by Mr Woodhouse, but that they were unfounded grievances; that, in the vast majority of cases, apart from the first two grievances in 2005 in January 2007, they were substantially without any significant evidential basis.  Moreover, the allegations of racism were scattered around in circumstances where, in the majority of cases, there was clearly no basis for suggesting a racial element.  It is striking that several of the more recent grievances were considered by managers who had little or no previous involvement with the organisation or with Mr Woodhouse.  There is no basis in the background for suggesting that they should have been motivated by any personal involvement with Mr Woodhouse, let alone his racial origins, yet Mr Woodhouse reaches the conclusion that their findings are tainted by race, simply because they find against him, despite the persuasive and objective evidence in favour of their conclusions.”

53.	In the next passage of the judgment, paragraph 98, the Employment Tribunal expands that as follows:

“There was, in this case, a repeated pattern of grievances which we have described above, which were thoroughly and exhaustively investigated and objectively demonstrated to be false.  That is the distinctive pattern in this case which enables us to say that this is not a case of victimisation because he had complained of racial discrimination.  Moreover, the results of those grievances themselves fed what had become, by the end, an obsession, a fixation.  Each time Mr Woodhouse’s grievances were resolved, it fuelled his belief (accepted by all parties as sincere), that managers and the organisation itself were racist in treating him in that way.  It is that conviction of Mr Woodhouse, however it was an expressed, which led the Respondent to decide that his loss of trust and confidence in them meant that his employment could no longer be continued.  Continuing his employment would result, at some future date, in further allegations, themselves damaging and taking up considerable time.  That was not a risk the organisation was prepared to run.  Having reached those conclusions, we therefore reject the claim of victimisation; Mr Woodhouse was not treated less favourably in his dismissal by reason that he had made earlier complaints of race discrimination.”

54.	We will need to return to the reasoning disclosed in the above passage later in this judgment but it is convenient at this point to dissect it into the following components:
i.	grievances had been objectively demonstrated to be false;
ii.	that enable the Employment Tribunal to say that this was not victimisation;
iii.	the Appellant had become obsessed; 
iv.	the rejection of one complaint would be bound to lead to another;
v.	the Respondent was no longer prepared to run the risk of further damaging and time-consuming allegations.

55.	On the issue of unfair dismissal the Employment Tribunal reached a majority decision that the dismissal was unfair.  There was unanimity about the conclusion that the reason for dismissal was Some Other Substantial Reason and not because he had made allegations of racism or because he was black (see paragraph 104 of the judgment).  The Employment Tribunal does not explicitly articulate, however, what was the reason for dismissal.  At paragraph 105 of the judgment it is described as “such belief” and following that there is a discussion of the difference between this case and other cases where employees may have expressed “an absence of trust and confidence in their employer”.  The last six lines of paragraph 105 read as follows:

“ … here we have a case of a profoundly disaffected employee who has a long-standing loss of trust and confidence in his employer, expressed forcefully in a number of ways over several years, whose loss of trust and confidence extends to almost all the Senior Managers who have come into contact with him and to other levels of employees within the organisation as well; in principle, such an employee could be fairly dismissed.”

Nothing more is said of the reason for dismissal than that but it seems reasonable to infer that if an employee loses trust and confidence in all senior management and other employees over a long period of time that can amount to some other substantial reason for dismissal and that in this case it did.

56.	It was in considering whether under section 98 (4) of the Employment Rights Act 1996 (“ERA”) the Respondent had acted reasonably in all the circumstances of the case in treating that reason as a sufficient reason for dismissing the Appellant that the Employment Tribunal divided.  The majority took the view that this was not a case where the employee’s view had been kept to himself (see paragraph 106 of the judgment).  It was, on the contrary, a case where the Appellant’s views (see paragraph 107 of the judgment):

“… did manifest themselves in his behaviour, and his behaviour did have a severe impact on the employer generally and on other employees in particular.  He submitted grievance after grievance with no objective basis, making personally damaging allegations of racism against employees and, in practice, all and sundry who crossed his path.  Moreover, he maintained those allegations despite repeated careful and thorough examination of the evidence and their rejection by Managers with no previous personal involvement with them, and by external investigators.”

This, concluded the minority, had been sufficient to justify dismissal as a reasonable reaction.  The majority looked back to the origins of the problem saying this at paragraphs 108 and 109:

“... the behaviour in question in this particular case was a course of action which, at least in the initial stages had been encouraged by the employer.  In 2005 and 2006, when Mr Woodhouse was encountering difficulties in pursuing his grievances, and indeed in earlier years when he had allowed his grievances against Mr Chapman and Mr Walker to be dealt with informally, he had been told that if he wanted them resolved, he should use the grievance procedure.  He took that advice to heart and subsequently, as we have found, submitted grievance after grievance.  The potential consequences for him of doing so were never spelt out to him in any shape or form.  At its highest, Ms Wanless, for example, had suggested to him in a personal plea, that he should consider, at a personal level, the consequences for employees distressed by the allegation of racism.  However, the implications for his job were never indicated at all, at any stage.  Mr Woodhouse’s sincere belief at the time was that he was simply and properly following the Respondent’s procedures; that he was entitled to use the procedures and he did so.  His sincerity in doing so and bringing forward the grievances has never been challenged by the Respondents.  It has never been suggested that he brought his grievances forward in bad faith, and therefore the range of authority, including Prison Service –v- Ibimudin EAT/0408/07 need not trouble us. …
109.  We accept that there must come a time, and it had certainly come in this case, when an employer can properly and fairly say of the use of the grievance procedure; “Enough is enough.  If this behaviour does not stop, you will be dismissed”.  That step was never taken.  He was never told his behaviour was unacceptable, let alone putting his job at risk.  It does not matter whether it was put formally at a full hearing, following some sort of procedure, or whether it was put informally at a meeting, or whether it was put by letter.  It is the substance that matters; the employee needs to be told one way or another before the meeting at which he was dismissed; he needs to be given an opportunity of building bridges or, at the very least, stopping the behaviour that is causing the employer such difficulty.  It seems to the majority that, in failing to take that step in any shape or form before dismissal, the employer was acting outside the range of responses open to a reasonable employer, even in this highly unusual situation.  Fairness requires no less from the reasonable employer.  The employer is not acting reasonably unless, in one form or another, it gives the employee that opportunity to mend his ways.”

57.	Finally, the Employment Tribunal reached the unanimous conclusion the Appellant, even had he been given such a warning, would have had a very small chance of remaining in employment.  The Employment Tribunal based this not only on the way in which the Appellant had behaved towards the Respondent over the previous years but also on the medical opinion from the Occupational Health Department that his “problems with the employer were profound and long-standing and unlikely to be resolved.”  The chance was so small that the Employment Tribunal assessed it at 10%.  This took account of the possibility of him being dismissed in any event by reason of ill health (see paragraph 115 of the judgment).  The Employment Tribunal appear not to have based any part of the reduction on the possibility of future redundancy, it being the case that the Appellant had “successfully passed the threshold for being offered a Project Officer’s job… [and] … there was a vacancy at the time suitable for him, which he could and would have been offered, had he not been dismissed” (see paragraph 116 of the judgment).

The submissions
58.	Mr Healy of counsel submitted on behalf of the Appellant that the judgment contained a fundamental error as to the difference between the statutory concept of victimisation under the provisions of the RRA and the provisions of the Equality Act 2010 (“the EA”).  The matter was not complicated by any transitional provisions as had been suggested at paragraph 4 of the judgment; when a complaint is made of a discriminatory act arising after 1 October 2010 then the relevant statute is the EA.  Where victimisation is under consideration then the matter is governed by the provisions of section 27 of the EA.  Under the terms of section 2 (1) of the RRA any court or tribunal adjudicating upon whether or not there had been victimisation had to conduct a comparative exercise because that provision reads:

“A person (“the discriminator or”) discriminates against another person (“person victimised”) in any circumstances relevant to the purpose of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons…”.

In any event, it was arguable that even under that provision since the judgment of the House of Lords in Khan v The Chief Constable of West Yorkshire [2001] UKHL 48 and later authorities the emphasis has not been on comparison but on causation.  Be that as it may, section 27(1) of the EA no longer required the court or tribunal to conduct a comparative exercise because it reads:

“A person (A) victimises another person (B) if A subject B to a detriment because –
(a) B does a protected act, or
(b) A believes that B has done, or may do, a protected act.”

59.	In the instant appeal the Employment Tribunal had plainly conducted a comparative exercise.  This was clear from the terms of the last two sentences of paragraph 94 of the judgment of the Employment Tribunal (quoted above at paragraph 50 of this judgment), and from the terms of paragraph 95 of the judgment (see above at paragraph 51 of this judgment) and it was the whole basis of the reasoning at paragraph 97 of the judgment (quoted above at paragraph 52 of this judgment).  As a result the Employment Tribunal had not asked itself the right question, namely whether the dismissal had been because the Appellant done a protected act.  Instead it had sought to distinguish how the Respondent had reacted to the Appellant by comparison with how it might have reacted to an hypothetical comparator.  This had resulted in the comparative finding of the Employment Tribunal at paragraph 94 of the judgment, which obscured any analysis of the relative weight to be given to the protected act as a cause of the detriment (see Owen and Briggs v James [1982] IRLR 502 at paragraph 21 and O’Donoghue v Redcar and Cleveland Borough Council [2001] IRLR 615 at paragraph 26 and Khan at paragraphs 71 to 73).

60.	Even if, under section 27 (1) of the EA, a comparative exercise remained a valid or helpful approach, then the wrong comparator and been used by the Employment Tribunal.  In Khan it had been accepted by both Lord Hoffmann (see paragraph 60) and by Lord Scott (see paragraph 72) that making a comparison with somebody who had made a different complaint, not involving allegations of discrimination, did not provide helpful illumination of the problem.  Rather the comparison should be the person who had made no complaint at all.

61.	On its own findings of fact, had the Employment Tribunal properly directed itself, it must have come to the opposite conclusion to the one it had arrived at.  The conclusion reached as a result of the findings at paragraphs 93, 94 and 97 of the judgment was clearly that the Appellant had been dismissed because he had continually raise grievances complaining of race discrimination and to find to the contrary was to reach a conclusion that no reasonable tribunal properly directing itself on the evidence could have reached.  In other words, it was perverse.

62.	These were clearly “protected acts” within the definition provided by section 27(2)(c) and (d) of the EA and the Employment Tribunal had completely failed to appreciate the significance of the finding that the Appellant was entirely sincere and not acting in bad faith (see paragraphs 98 and 108 of the judgment; the latter is in the context of unfair dismissal but the very clear finding must be carried back into the discussion of victimisation).

63.	It was the frequency and extent of the complaints that had impressed the Employment Tribunal.  The distinction which the Employment Tribunal sought to make between complaints which were objectively justifiable and those which were irrational and subjective is not supported by any analysis of the statutory concept involved.  Even if, as the Employment Tribunal found to be the case, the Appellant was unjustifiably complaining of race discrimination unless those complaints fell within the “bad faith” exception created by section 27(3) of the EA if, as was clearly the case, the Appellant had been dismissed for making complaints of race discrimination, then victimisation was clearly made out.  In particular the reasoning at paragraph 97 of the Employment Tribunal’s judgment could not stand scrutiny.  It was not apparent what distinction the Employment Tribunal was attempting to make by its reference there to “context”; no analysis of that paragraph of the judgment could establish any contextual difference between the Appellant’s case and any other case of victimisation.

64.	Furthermore, the statement that the instant appeal was “on all fours” with the judgment of this Tribunal in Martin v Devonshire Solicitors [2011] ICR 352, an authority, which, apparently, the Employment Tribunal itself, rather than counsel, had introduced into the case, was simply erroneous.  Not only was the tentative nature of paragraph 97 of the judgment at odds with the guidance given by paragraph 22 of the EAT’s judgment but also distinctions between complaints and the manner of making complaints should only be drawn in clear cases that the instant appeal was factually well short of the kind of exceptional circumstances exemplified by the factual matrix of the Martin case itself. Nor was the case of Pasab Ltd t/a Jhoots Pharmacy v Mrs Niamh Woods UKEAT 0454/11/LA, relied on by the Respondent, any less eccentric.

65.	There was a second error in the Employment Tribunal’s analysis of the law.  At paragraph 96 of the judgment the Employment Tribunal had not applied the shifting of “the burden of proof” required by section 136 of the EA.  Under the RRA, as a result of the judgment of the Court of Appeal in Oyarce v Cheshire County Council [2008] ICR 1179, the “reverse burden of proof” provisions introduced into that Act were held not to apply to race victimisation.  What the Employment Tribunal had done in paragraph 96 of the judgment was to equate the need for “clear and compelling evidence”, which it took to be the existing position under the RRA with “the reverse burden of proof”.  These were not the same concepts and that approach resulted in the Respondent explaining paragraph 98 of the judgment why it thought its actions had been necessary rather than, as should have been the case, explaining why its actions were not discriminatory.  This error, submitted Mr Healy, had simply compounded the other error of adopting a comparative approach made by the Employment Tribunal.

66.	In any event, even if a one stage analysis might have been appropriate, there was still no sign of the Employment Tribunal having identified the explanation required by paragraph 96 of the judgment:

“When considering victimisation, there is obviously a strong case which cries out for an explanation from the Respondents to disprove the allegation.”

So a high hurdle had been set but nowhere in the previous or subsequent analysis is there any clear picture of the Respondent straddling it.  On the contrary, the Employment Tribunal concentrates on the position of the Appellant and never identifies any convincing explanation from the Respondent as to why its reaction to that position was not discriminatory.

67.	The third main error identified by Mr Healy in his submissions was of a failure by the Employment Tribunal to identify the correct reason for dismissal.  He accepted that although paragraphs 104 and 105 of the judgment were not as explicit as they ought to have been, nevertheless it was possible to infer that the Employment Tribunal had concluded the reason for dismissal was that the Appellant had lost trust and confidence in the Respondent.  This was not a helpful and might be a misleading formulation; see paragraph 19 of the Martin case and paragraph 39 of McFarlane v Relate Avon Ltd [2010] IRLR 196.  What the Employment Tribunal had identified was a caricature of the reality, which was that the Appellant had been dismissed by reason of his conduct.  Also the majority position, as expressed at paragraph 109 of the judgment, regarded the dismissal as unfair because no opportunity been given to the Appellant to “mend his ways”.  This reveals that the Employment Tribunal were really characterising the reason for dismissal as misconduct.

68.	If, submitted Mr Healy, the Employment Tribunal should have found discrimination by victimisation, then the “Polkey” issue fell away.  But even if, contrary to the above submissions, the Employment Tribunal had correctly dismissed the victimisation claim, it had still erred in the analysis of the “Polkey” issue, something which the Employment Tribunal had raised itself.

69.	This was because the Employment Tribunal had failed to make any findings of fact that supported or adequately supported the conclusion that compensation should be reduced by 90%.  Not only is there no trace of any evidential investigation as to the Appellant’s position (and Mr Healy told us that was because they had been none, although that proved controversial, as to which see below) but also the conclusion totally ignored the Employment Tribunal’s own finding that there was no risk of redundancy because the Appellant had been successful in relation to the Project Officer post and there was a vacancy.  The Employment Tribunal discounted ill health and redundancy but still concluded that compensation should be reduced by 90%.  This ignored the difficulties of prediction identified in the judgment of this tribunal in Andrews v Software 2000 Ltd [2007] ICR 825 at paragraph 54.

70.	Mr Healy submitted that the case need not be remitted to the Employment Tribunal.  There were sufficient findings of fact to allow us to conclude that the reason for dismissal was conduct, namely the repeated lodging of grievances based on race discrimination, and that the dismissal was an act of victimisation.  Moreover, he maintained that we could on the material before us reach our own determination about any “Polkey” reduction.

71.	At the start of his submissions Mr Breen told us that his recollection was that the Employment Tribunal had asked the Appellant what he believed would have happened in the future.  This seemed to us somewhat at odds with paragraphs 54 to 56 of the written submissions lodged by the Respondent at this Tribunal at the preliminary hearing stage.  There (see page 83 of the appeal bundle) it seemed to be clearly stated that the matter had not been raised and that it had not been necessary to raise it because if the Appellant had attempted to suggest that he might have behaved differently, the Employment Tribunal would have rejected such evidence.  It should be pointed out that Mr Breen appears not to have been the author of these submissions.  Nevertheless there remained a degree of controversy and some lack of clarity on this point.   In the end, for reasons explained below we have not found it necessary to resolve it.

72.	Mr Breen submitted that when the case was looked at overall, it was clear that the Employment Tribunal had not made any errors of law.  The complaint made by the Appellant about paragraphs 4 and 21 of the judgment ignored the context, which was that of a long series of grievances culminating in first suspension and then dismissal in October 2010.

73.	The last sentence of paragraph 4:

“As it turns out, in view of our findings of fact, nothing turns on the difference in wording between the two statutes.”

is simply an indication that the evidential material was so strong that irrespective of the analytical method employed, whether comparative or causative, there could be no different a result.  This perspective is reinforced by the use of the expression in paragraph 21 of the judgment “there are no significant differences”.  Moreover, it is clear from paragraphs 95 and 96 of the judgment that the Employment Tribunal was asking why the Appellant had been suspended and dismissed.

74.	The Employment Tribunal had been referred to a large number of authorities (see paragraphs 22 to 25 of the judgment) and the Appellant’s submissions ignored the last part of paragraph 26 of the judgment where the Employment Tribunal said this:

“We were not assisted by consideration of the comparators in relation to delay, or generally.  We prefer to follow the guidance of Lord Nicholls in Shamoon v Chief Constable of Royal Ulster Constabulary [2003] IRLR 285; “Tribunal’s may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the Claimant was treated as [he] was.  Was it on the prescribed ground which is the foundation of the application?  That will call for an examination of all the facts of the case.  Or was it some other reason?  If the latter, the application fails.  If the former, there will usually be no difficulty in deciding whether the treatment, afforded to the Claimant on the prescribed ground, was less favourable than was or would have been afforded to others.”

75.	The very long paragraph 20 of the judgment was a meticulous examination of the history of the matter and in respect of each allegation the Employment Tribunal had applied entirely the correct approach.  It was not surprising that in relation to the suspension and dismissal the Employment Tribunal had relied on the analysis of the grievances, which it had undertaken in the earlier part of the judgment.  This entitled the Employment Tribunal to conclude that the main reason for dismissal had been the Appellant’s own view of events and that dismissal had been within the band of reasonable reactions to the situation in which the Respondent found itself.  Essentially, this was a factual conclusion which should not be interfered with.

76.	In respect of victimisation the Employment Tribunal had asked itself the correct question, namely what was the causative link between the protected act and dismissal and had reached the conclusion that the dismissal had not been caused by the grievance but by the state of mind revealed by the reflex action of the Appellant in repeatedly submitting grievances.  It was not what he had done but what he believed that mattered and the Employment Tribunal had properly concluded that it was his belief that caused his dismissal.  This is what is being discussed by paragraphs 95 to 98 of the judgment.  Moreover, once the correct question, namely why did the Respondent suspend and dismiss, is addressed then issues about the burden of proof simply evaporate.

77.	Whilst accepting that the expression “on all fours” might not be entirely accurate in terms of a comparison between the instant appeal and the Martin case, Mr Breen submitted that it was too crude a distinction to point to the mental illness of the employee in the latter.  Where grievances are concerned the question is the extent to which there are special circumstances; here there were special circumstances, albeit different to those that applied in Martin.  That case had been applied in another judgment of this Tribunal in the Pasab case.  There a division of this Tribunal presided over by His Honour Judge Peter Clark said this at paragraph 19:

“ … if the remark was viewed not as a protected act but an offensive racist comment by Mrs Jhooty, then the reason for dismissal was not that the Claimant had done a protected act, but some other feature genuinely separable from the implicit complaint of discrimination.  That was the correct analysis in Khan, so the House of Lords held, and accords in our judgment with the approach of Underhill P (as he then was) in Martin (paragraph 25).”

So, there the separable circumstances were somewhat different to those in Martin but, submitted Mr Breen, the case illustrates the diversity of the concept and supports its use by the Employment Tribunal in the instant appeal.

78.	As to “Polkey” the Employment Tribunal were entitled to consider it and their analysis was rooted in their careful examination of the relationship between the Appellant and the Claimant over a period of five years.  It was entirely realistic for them to conclude that a warning or ultimatum would have made no difference and it was a matter of fact for them to decide the appropriate discount.  This Tribunal should not interfere with that exercise; we had no jurisdiction to and, if that was wrong and we had, we did not have the material to do so and the case would have to be remitted on that point.

Discussion and conclusion
79.	The fundamental issue here is whether the Employment Tribunal erred in law in concluding that the Respondent did not dismiss the Appellant because he had complained of race discrimination by the Respondent’s employees.

80.	At paragraph 94 the Employment Tribunal had said:

“We are persuaded by the witness’ explanations to find that their decision to suspend and subsequently dismissed Mr Woodhouse was not taken on racial grounds to any extent. We find that a comparable employee, who had evinced similar profound and long-standing lack of faith by submitting similarly ill-founded grievances, but without any racial connotation, would have been similarly treated.  We find these were not acts of direct discrimination, nor were they acts of harassment on racial grounds.”

81.	This, of course, relates to matters with which we are not concerned on this appeal but it so obviously leads into the Employment Tribunal’s consideration of victimisation that it is worthwhile repeating it here.  At paragraph 95 the Employment Tribunal addressed the question with which we are concerned in these terms:

“Were they victimisation? Was Mr Woodhouse victimised, treated less favourably than others would have been treated when he was suspended and then dismissed by reason that he had made repeated complaints of race discrimination to the Second Respondent?”

82.	There is an obvious error at this point in the judgment of the Employment Tribunal, namely the adoption of a comparative approach.  But has this error resulted in the Employment Tribunal reaching an unsustainable conclusion?  Mr Breen submitted that essentially the conclusion reached by the Employment Tribunal was a finding of fact and, as such, not capable of challenge on appeal, that the error was more apparent than real and had not resulted in the Employment Tribunal taking a significantly wrong course because it had reached the correct conclusion in any event.

83.	We cannot accept those submissions.  Firstly, whilst we agree that at paragraph 26 of its judgment the Employment Tribunal did give itself a perfectly correct direction by its reference to the well known passage from paragraph 11 of the speech of Lord Nicholls in Shamoon and that would have been an appropriate approach to section 27(1) of the EA (set out above at paragraph 58 of this judgment), it seems to us beyond argument from the terms of paragraphs  94, 95, 97 and 98 of the judgment that the actual analysis adopted by the Employment Tribunal was a comparative one.  Secondly, the terms of paragraphs 4 and 21 of the judgment consistently state the proposition that the change in wording as between section 2 of the RRA and section 27 of the EA makes no significant difference, at least on the facts found, and we cannot accept that as a correct statement of the position.  “Less favourable” treatment is no longer a component of “victimisation”.

84.	We wonder to what extent a comparison might ever illuminate the question posed by section 27 of the EA as to whether an employee has been subjected to a detriment by the Respondent because s/he has done a protected act?  But we need not consider that further in this case because we accept Mr Healy’s submission that it cannot illuminate anything if the comparison falls into the trap identified by Lord Scott at paragraph 72 of his speech in Khan.  The comparison here between somebody who has made groundless complaints of race discrimination and somebody else who has made groundless complaints of a different variety is exactly of that character.  Therefore, the analytical tool used here by the Employment Tribunal was that of an unhelpful comparison to answer a question that required no comparative analysis in any event.

85.	Even so the Employment Tribunal had emphasised its findings of fact at paragraph 21 of the judgment as transcending any difference in concept as between the two statutory provisions and Mr Breen insisted that the Employment Tribunal had reached the correct destination, even if the route might have wandered slightly off course.  It seems to us that at the heart of this is the proposition that the finding was clearly inevitable and solidly built on the findings of fact made in relation to the grievances.

86.	There is no appeal against the rejection of the claims of race discrimination in the context of the nine grievances and as a result we must accept the Employment Tribunal’s conclusion that, apart from the first two they were all “ill-founded grievances … substantially without any evidential basis” (paragraph 94 of the judgment), “unfounded grievances” (paragraph 97 of the judgment) and “objectively demonstrated to be false” (paragraph 98 of the judgment).    It is not part of our function as an appellate tribunal to quarrel with that conclusion.  On the other hand we are entitled to ask – what does that mean?

87.	Clearly some of the grievances, at least, rested on real issues and real adverse outcomes for the Appellant, so they were not false in the sense that they were a complete fiction.  It was the characterisation by the Appellant of the motivation of the Respondent’s employees as racial discrimination that the Employment Tribunal concluded was objectively incorrect.

88.	Section 27(2)(d) (the most apposite part of the definition for present purposes) does not stipulate that the “protected act” must be objectively justifiable; it simply refers to:

“making an allegation (whether or not express) that A or another person has contravened this Act.”

and the EA provides only limited protection by section 27(3) to an employer from the consequences of taking action where the allegation is false:

“Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.”

It seems to us that “false” must mean wrong or incorrect or, in the terms used by the Employment Tribunal  “ill-founded”, “substantially without any evidential basis”, “unfounded” and  “objectively demonstrated to be false”.  But that does not matter unless bad faith was made out and bad faith was simply not in issue in this case. Although apparently Councillor Lowe had thought there was bad faith (see paragraph 20.32), that was not advanced as an argument at the hearing (see paragraphs 98 and 108 of the judgment).  Indeed, the Employment Tribunal accepted the Appellant’s sincerity (see also paragraph 108 of the judgment).

89.	But, as the then president of this tribunal, Underhill J, explained at paragraph 24 of the judgment in Martin in answer to the argument that the “bad faith” exclusion provided the only defence:

“We do not accept that.  No doubt sections 4 (2) (of the 1975 Act) and 55 (4) (of the 1995 Act) are to some degree exclusive: that is to say, in defending himself against the victimisation claim an employer cannot advance the distinction simply that the real reason for the act complained of was not the making of the complaint but the fact that it was false, since the intention of the legislation is indeed plainly that false complaints will be protected unless made in bad faith.  But we do not believe that that “field of exclusion” covers a case like the present, where the falseness of the complaint is the result of mental illness and the reason for the treatment complained of is the perceived risk of future disruptive behaviour on account of that illness.  The control mechanism of imposing a bad faith requirement has no application to such a situation.”

90.	Therefore, the position here is that the Appellant had done a series of protected acts, not excluded from that concept by being done in bad faith.  But the Employment Tribunal found that he had not been dismissed because of those acts.  He had not been dismissed on account of his conduct in bringing the grievances.  He had been dismissed because of his loss of trust and confidence in the Respondent (see paragraph 94 of the judgment).  Although Mr Healy had drawn to the attention of the Employment Tribunal paragraph 39 of the judgment of Underhill J in McFarlane v Relate Avon Ltd:

“First, we are bound to say that the tribunal unnecessarily complicated the analysis by referring to “loss of trust and confidence”.  Its doing so is understandable, since that is the way the case was put in the respondent’s pleading and apparently Mr Knight’s oral submissions.  Nevertheless, we think it unhelpful.  Although in almost any case where an employee has acted in such a way that the employer is entitled to dismiss him the employer will have lost confidence in the employee (either generally or in some specific respect), it is more helpful to focus on the specific conduct rather than to resort to general language of this kind.  We have noticed a tendency for the terminology of “trust and confidence” to be used more and more often outside the context of constructive dismissal in which it was first developed (see, classically, Malik v Bank of Credit and Commerce International SA [1997] IRLR 462); this is a form of mission creep which should be resisted.  But, in this case at least, the reference to trust and confidence does not obscure the tribunal’s substantive reasoning.”

it had not been deterred from adopting the “loss of trust and confidence” terminology.  As in McFarlane this was reiterating the formula used by the Respondent.  Moreover, Mr Breen submitted that this is finding of fact with which we must not interfere.  The Appellant had suffered detriment not because of his conduct but because of his incurable disaffection.  Mr Healy submitted that we should look more deeply into what was actually being decided and we agree that we should do so.

91.	On closer consideration several points emerge.  Firstly, it is worth noting that the Employment Tribunal itself recognised there was evidential material that tended to suggest some part of the evidence heard at the dismissal hearing related to the impact made on fellow employees by the repeated allegations of race discrimination and also related to the Respondent’s need to avoid future repetition.  The Employment Tribunal refer to this at paragraph 93 of the judgment and, in effect, reject it as causally connected to the dismissal decision at paragraph 94 of the judgment (see above at paragraph 50 of this judgment).

92.	Having relegated the evidence about the impact of the grievances on the Respondent and the need to avoid future disruptive complaints to being of secondary or no importance in relation to direct race discrimination and harassment, nevertheless the Employment Tribunal do refer to it again in the last sentences of paragraph 98 of the judgment (see above at paragraph 53 of this judgment) as an integral part of the reasoning that there had been no victimisation of the Appellant.  Furthermore the Employment Tribunal relies again in the last part of the last sentence of paragraph 98 on the same comparative approach that resolved the issues of direct race discrimination and harassment against the Appellant at paragraph 94 of the judgment.

93.	Our view of the comparison expressed above at paragraph 84 of this judgment is irrelevant in the context of the allegations of direct race discrimination and harassment; they are not the subject of appeal.  But so far as victimisation is concerned, we do not think the use of an analytical tool condemned by Lord Scott (and others) in Khan as having no utility can have added any clarity to the reasoning process.  In any event less favourable treatment has been an irrelevant consideration since 1 October 2010 and we agree with Mr Healy that the relevant question was whether the Appellant’s conduct had played any significant part in the Respondent deciding to dismiss?

94.	Thirdly, in the part of the judgment that relates to unfair dismissal (paragraphs 104 to 112 of the judgment) whereas the Employment Tribunal synthesises (at least by implication) a reason for dismissal confined to the Appellant’s belief or state of mind, the whole of the discussion in the context of section 98(4) of the ERA is in terms of the Appellant’s future conduct.  The defect identified by the majority is the failure to warn.  But this warning would clearly not be about the Appellant’s state of mind alone (something the Employment Tribunal itself regarded as irrelevant – see paragraphs 105 and 106 of the judgment) but about how it was likely to manifest itself in terms of his future conduct.  That kind of thinking must incorporate the example of past conduct as a guide to future behaviour and as shaping the nature of the warning; most commonly a warning is – “do not do it again”.

95.	Fourthly, the Employment Tribunal itself recognised the need to exclude the raising of grievances as a cause of the decision to dismiss.  It regarded Martin as an analogue of the instant case, although saying it was “a stronger case”.  In Martin the incidents alleged by the Appellant had never occurred and were very likely paranoid delusions caused by her mental illness.  The Employment Tribunal recognised that the Appellant here was not mentally ill, although they characterised him as obsessive and fixated, but nevertheless felt able to describe Martin “as on all fours” with this case.

96.	As the Employment Tribunal also recognised before the case could be regarded as analogous it had to identify “some feature of it which can properly be regarded as separable” (see paragraph 22 of Martin).  It is not apparent to us what that “separable feature” was found to have been.  In giving the judgment of this Tribunal, the then President, Underhill J, had sounded this note of caution:

“Of cause such a line of argument is capable of abuse.  Employees to bring complaints often do so in ways that are, viewed objectively, unreasonable.  It would certainly be contrary to the policy of the anti- victimisation provisions if employers were able to take steps against employees simply because in making a complaint they had say, used intemperate language or made inaccurate statements.  An employer who purports to object to “ordinary” unreasonable behaviour of that kind should be treated as objecting to the complaint itself, and we would expect tribunals to be slow to recognise the distinction between the complaint and the way it is made save in clear cases.”

97.	This note of caution was sounded in relation to the manner of a complaint and behaviour relating to the way in which the complaint is made.  Martin itself did not fall into that category, as Underhill J recognised at paragraph 23 in the following terms:

“We accept that the present case is not quite like that.  What the Tribunal found to be the reason for the Appellant’s dismissal was not the unreasonable manner in which her complaints were presented (except perhaps to the extent that Mr Hudson referred to the fact that some of the grievances were repeated).  Rather, it identified as the reason a combination of inter-related features – the falseness of the allegations, the fact that the Appellant was unable to accept that they were false, the fact that both of those features were the result of mental illness and the risk of further disruptive and unmanageable conduct as a result of that illness.  But it seems to us that the underlying principle is the same: the reason asserted and found constitutes a series of features and/or consequences of the complaint which were properly and genuinely separable from the making of the complaint itself.  Again, no doubt in some circumstances such a line of argument may be abused; but employment tribunals can be trusted to distinguish between features which should and should not be treated as properly separable from the making of the complaint.”

98.	So conduct/behaviour might be one type of separable feature (and Underhill J had given examples at paragraph 22 of the judgment).  Other cases, like Martin might involve a collection of separable features, some of which related to behaviour (past and future) and some of which related to the employee’s state of mind, viewed both subjectively (i.e. what the employee thought) and objectively (i.e. what medical experts thought was the reality, and the cause, of the employee’s perception).

99.	The search in this case for what HHJ Clark referred to in Pasab case as “genuinely separable features” must cover the territory of paragraphs 97 and 98 of the judgment of the Employment Tribunal, which we set out above, together with a brief analysis of paragraph 98, at paragraphs 52 to 54 of this judgment.   According to the Employment Tribunal it “is possible in this case to draw a distinction between the context in which various comments were made and Mr Woodhouse’s various grievances themselves” (see paragraph 97).  What does this reference to context mean?

100.	If we look further in paragraph 97 for elucidation, the next thing discussed after this reference to context is the by now familiar comparison between the Appellant and a hypothetical employee raising similar grievances but not alleging race discrimination.  In our view that tells us nothing about context.  The “factors which stand out for us” are then listed.  The first is the repetition of unfounded and unjustified grievances; this must be within the conduct/behaviour category.  It is said at paragraph 98 to be “the distinctive pattern in this case which enables us to say this is not a case of victimisation because he had complained of race discrimination.” The second, which straddles paragraphs 97 and 98, is the Appellant’s reaction to the dismissal of grievances; this must be within the category of subjective state of mind and is described as “an obsession, a fixation”, which “fuelled his belief that managers  and the organisation itself were racist in treating him in that way”.  The Employment Tribunal concludes that this (described as a “conviction”) is what “led the Respondent to decide that his loss of trust and confidence in them meant that his employment could no longer be continued.”  This is not freestanding, however, because the next two sentences refer to the inevitably of further allegations in the future which would be “damaging”, presumably in terms of the impact on employees and the organisation, and explicitly in terms of the time taken up. This must be future conduct/behaviour.  This was a risk that the Respondent was not prepared to run.  Paragraph 98 ends with this sentence, which, as a summation of the conclusion subject to appeal, justifies repetition:

“Having reached those conclusions, we therefore reject the claim of victimisation; Mr Woodhouse was not treated less favourably in his dismissal by reason that he had made earlier complaints of race discrimination.”

101.	This still does not explain “context” and it is not, of course, the analysis, which the statute now requires.  But the real question is can the judgment be supported on the basis of “genuinely separable features”?  Obviously the Employment Tribunal felt that, as in Martin, there was a mixture here of the subjective state of mind of the Appellant and the future impact of his behaviour.  But we think that a further note of caution ought to be added to the one embedded in the judgment by Underhill J.

102.	In our judgment, Martin cannot be regarded as some sort of template into which the facts of cases of alleged victimisation can be fitted.  There are no doubt exceptional cases where protected acts have not caused the dismissal or whatever other detriment is at issue.  Martin is an example of such an exceptional case.  But we emphasise the word exceptional; very few cases will have grievances based on paranoid delusions about events that never happened.  It seems to us the process of measuring cases against such a yardstick is a dangerous one.  One person’s conviction that they have been discriminated against is very likely to generate the polar opposite, i.e. that the complainant is irrational, in the person or organisation complained about.  Experience of this type of litigation teaches that grievances multiply and so the fact that here are a series of them is not unusual.  It is a slippery slope towards neutering the concept of victimisation if the irrationality and multiplicity of grievances can lead, as a matter of routine, to the case being placed outside the scope of section 27 of the EA.  All the more so when the origin of the problem is established, as here, to have been a real, as opposed to imaginary, race discrimination.

103.	In our judgment, on any objective basis, this case is not “on all fours” with Martin.  This is not only illustrated by the clear factual differences between this case and Martin but also by the difficulty, as we perceive it to be, of the Employment Tribunal being able to articulate what the “genuinely separable features” are; the reference to “context” does not do that.  What can be gleaned from paragraphs 97 and 98 of the judgment is but a pale pastiche of the situation in Martin itself.  Indeed we think that Employment Tribunals would do well to start from the proposition that very few cases will be like Martin.  Moreover, although it is a factor in Martin that there was a risk of future repetition (see paragraph 23 of that judgment quoted above at paragraph 97 of this judgment) it must not be forgotten that the terms of section 27(1) of the EA (see above at paragraph 58 of this judgment) cover future, as well as past, protected acts; in our view the importance of the words “as a result of that illness” in paragraph 23 of Martin should not be underestimated.

104.	Therefore, we conclude that this case is not an analogue of Martin and the Employment Tribunal fell into error when they regarded it as such.  But more than that we conclude that the Employment Tribunal never identified any “genuinely separable features”.  In the end the Martin concept is an unchallengeable factual finding of a reason for detrimental action other than the doing of protected act in the past or the potential for such an act in the future.  It seems to us all paragraphs 97 and 98 of the judgement of the Employment Tribunal amount to is that the Appellant had raised a number of grievances in the past, which had proved to be unjustified, and his state of mind was such that he was likely to do so in the future.  The Respondent’s position that the Appellant was dismissed because he had lost trust and confidence in the organisation when coupled, as the Employment Tribunal found it to be, with the avoidance of further repetition of grievances by ending the employment relationship, is no more than the Appellant being dismissed, if not because of past protected acts, then because of the belief of the likelihood of future protected acts.  In our view on the Employment Tribunal’s own factual findings that amounted to victimisation within the scope of section 27(1) and the Employment Tribunal erred by reaching any other conclusion.

105.	As to Mr Healy’s other main submission that the Employment Tribunal made an error as to the burden of proof we accept his criticism that paragraph 96 of the judgment equates the need for “clear and compelling evidence”, which it took to be the existing position under the RRA, with “the reverse burden of proof” under section 136 of the EA. But this is not conclusive because a one stage approach is sometimes justifiable.  In any event, as we have found above, the real failure in the Employment Tribunal’s reasoning results from the failure to recognise that their own findings amounted to victimisation.  That did not turn on the burden of proof and we would not have regarded the undoubted error as to the burden of proof as fatal if the evidence that the dismissal had not been because of the doing, or belief in the future doing, of a protected act had actually been “clear and compelling”.

106.	As to the third main error, namely the failure to identify the correct reason for dismissal, in our view the appeal cannot succeed on this basis.  Whilst the analysis of unfair dismissal at paragraphs 104 to 108 does not identify the reason for dismissal clearly it seem to us obvious that it was some other substantial reason in the nature of a loss of trust and confidence by the employee.  We think that if the Employment Tribunal had embraced the warning given about the imprecision of such concepts by Underhill J in McFarlane, there would not have been such an uncritical acceptance of the Respondent’s rubric but we do not think it amounted to an error of law.

107.	As it is we will allow the appeal on the basis that the Employment Tribunal wrongly concluded that the evidence amounted to “genuinely separable features” justifying the conclusion that the dismissal was not because of past or future protected acts.   On the contrary on the evidence the only proper conclusion was that the Appellant had been victimised by his suspension and dismissal and we will substitute that finding.

108.	Therefore the “Polkey” reduction becomes unsustainable and there is no need to consider the lack of clarity as to the procedure by which the determination was arrived at.  Accordingly, we will also allow the appeal against it and quash the finding.  But if we are wrong on the victimisation issue, then we must consider whether there was any error in the making of that reduction.

109.	The lack of agreement as to the procedure actually adopted by the Employment Tribunal is a complicating feature.  It seems likely that this was not dealt with separately in terms of evidence but paragraph 54 of the judgment of this tribunal in Andrews v Software 2000 Ltd does not suggest that it must be.  We have been told that the point was taken by the Employment Tribunal but its origins do not matter as long as everybody has adequate notice that it is in play and an opportunity to deal with it.  What causes us considerable concern is that it appears to be common ground that the Employment Tribunal called for no submissions on the issue.  This strikes us as erroneous.  The parties should have an opportunity to deal with issues and for that reason we would have allowed the appeal in relation to the “Polkey” deduction.  But it was never a matter that we could have dealt with and had it been necessary to do so we would have remitted the “Polkey” issue for re-hearing by the same Employment Tribunal with a direction that either party was to be permitted to call evidence relating to the issue, if so advised.