Appeal No. UKEAT/0003/09/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 1 May 2009
Judgment handed down on 9 October 2009

Before
HIS HONOUR JUDGE PETER CLARK
MR B R GIBBS
MR B M WARMAN

1)  MILTON KEYNES GENERAL HOSPITAL NHS TRUST	
2)  MS I PUNCHARD	APPELLANTS

MRS J MARUZIVA	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR DAMIAN BROWN
(of Counsel)
Instructed by:
Messrs Hammonds LLP Solicitors
2 Park Lane
Leeds
West Yorkshire
LS3 1ES	
For the Respondent	MR JOEL KENDALL
(of Counsel)
Instructed by:
Messrs HMG Law Solicitors
32 crown Walk
Bicester
OX 26 6HY	

SUMMARY
RACE DISCRIMINATION:  Direct / Burden of proof
VICTIMISATION DISCRIMINATION
PRACTICE AND PROCEDURE:  Appellate jurisdiction/reasons/Burns-Barke

Numerous complaints of direct discrimination/victimisation under the Race Relations Act 1976 (RRA).  Whether the Employment Tribunal reasoning passed the Meek test.  With one exception it did not; those matters remitted to fresh Employment Tribunal for rehearing.

On the question, does s.54A RRA apply to Direct Discrimination on ground of colour Chagger [2009] IRLR 86 (Underhill P) affirmative answer preferred to negative answer in Okonu [2008] ICR 598.

HIS HONOUR JUDGE PETER CLARK
1.	The parties to these proceedings before the Bedford Employment Tribunal were Mrs Maruziva, Claimant and (1) Milton Keynes General Hospital NHS Trust (‘the Trust’) and (2) Irene Punchard (Ms Punchard) Respondents.  We shall so describe them.  The Claimant’s complaints of direct discrimination and victimisation contrary to the Race Relations Act 1976 (RRA) and unfair dismissal came on for substantive hearing before an Employment Tribunal chaired by Employment Judge Southam commencing on 28 April 2008.  The case was adjourned part heard after 5 days and resumed on 1 and 2 September.  The Employment Tribunal considered the matter in private on 3 September before promulgating their judgment with reasons on 14 October 2008.  The Judgment is defective in that only the 3 September date is referred to in the heading.

Background

2.	Despite finding that both Respondents discriminated against the Claimant on the ground of her colour the Employment Tribunal omit to mention in their 26 page judgment that the Claimant is black.  She describes herself in her pleadings as black African.

3.	She commenced employment with the Trust in October 2003 as a senior staff nurse.  In November 2005 she presented a complaint of race discrimination to the Employment Tribunal which was dismissed in June 2006.  On 21 August 2006, with her consent, the Claimant was transferred from Ward 20 in the General Surgery Department to the Out Patients Department (OPD).  On 3 January 2007 she suffered injury in a Road Accident (RTA) and remained unfit for work up until her dismissal on 29 June 2007.  In January 2007 she raised the first of five grievances concerning her alleged treatment in OPD between August and December 2006.  We note that she had earlier been off sick from an unspecified date in 2005 until her transfer to OPD on 21 August 2006.

4.	At paragraphs 25-31 the Employment Tribunal helpfully set out the issues in these combined proceedings which fell to be determined.  In short, the Claimant succeeded in part.  There is no cross‑appeal against those findings adverse to the Claimant.  The Respondents appeal all findings adverse to them.

Direct Discrimination

5.	S1(1)(a) RRA provides:

“(1)	    A person discriminates against another … if –
	(a)	on racial grounds he treats that other less favourably than he treats or would treat other persons;”

and ‘racial grounds’ means colour, race, nationality or ethnic or national origins; (s3(1)).

6.	In the present case the Employment Tribunal found that, in certain respects both the Trust and Ms Punchard (and through her the Trust) had unlawfully discriminated against the Claimant on grounds of her colour.  In so finding the Employment Tribunal directed themselves (Reasons para 15) that whereas the ‘reverse burden of proof’ introduced by s54A RRA applied to discrimination on grounds of race, national or ethnic origin it did not apply to discrimination on grounds of colour.

7.	That self-direction reflects the view expressed by this tribunal in Okonu v G4S Security Services (UK) Ltd [2008] ICR 598 (HHJ Birtles presiding).  However, two days after the Employment Tribunal judgment was promulgated in this case a different division (Underhill J, now President, and members) handed down its judgment in Abbey National PLC v Chagger [2009] IRLR 86 where a different view was taken from that in Okonu (see paras. 33 and 35).  For ourselves we respectfully agree with the approach in Chagger which should be followed in future cases for the reasons there given.  However, in the present case it is common ground that in the appeal no substantive point arises since, if the Claimant succeeded on the ‘old law’, that is applying the guidance in King v The Great Britain China Centre [1991] IRLR 513, para. 38 per Neill LJ, then she would inevitably succeed if s54A is applied.  What s54A does, in short is to elevate from the permissive to a mandatory drawing of an inference of unlawful discrimination where the Claimant has established a prima facie case of less favourable treatment on one of the prohibited grounds and the Respondent has failed to provide any or any adequate explanation unconnected with that ground.

8.	What is required from an Employment Tribunal considering a complaint of direct discrimination is first, careful primary fact-finding leading to an explanation as to why the tribunal find that the claimant has been less favourably treated than her actual or hypothetical comparator or (see Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 para. 8, adopted by Elias J in Bahl v Law Society [2003] IRLR 640) the ‘reason why’ she was treated as she was.  Whilst discrimination may be conscious or subconscious it is not sufficient for the tribunal to proceed on the basis of an intuitive hunch (Chapman v Simon (1994) IRLR 124, para 43 per Peter Gibson LJ).

9.	Unreasonable treatment does not of itself give rise to an inference of unlawful discrimination; it requires a non-discriminatory explanation from the Respondent.  If that explanation is accepted by the employment tribunal, the claim will fail (see Bahl, paras 99‑101), applying the approach of the House of Lords in Glasgow City Council v Zafar [1998] IRLR 36).  The position is neatly encapsulated, by reference to the Court of Appeal guidance in Igen v Wong [2005] IRLR 258, by Silber J in the recent case of Teva (UK) Ltd v Goubatchev (UKEAT/0490/08/DA. 27 April 2009) at para. 26.

10.	The real question in this part of the appeal is whether this Employment Tribunal has demonstrated that approach in its reasoning.

11.	We take first the single finding of unlawful discrimination made against Ms Punchard, one of three allegations made against her.  Ms Punchard was the dermatology sister and the relevant complaint against her (para. 25.1) was:

“Ms Punchard failed to induct the Claimant in dermatology clinic practice, that when the Claimant sought advice from her she .received a shouted or sarcastic response resulting in her feeling humiliated.   By contrast, Ms Burton (who is white) was treated differently and with respect and given all the support she required.”

12.	The relevant findings of primary fact appear at paras. 32.14 and 32.16, where the Employment Tribunal found as follows:

“32.14	Evidence revealed by the second Respondent's later investigation revealed that Catherine Woolsey did not observe any shouting or sarcasm by Irena Punchard towards the Claimant. However, Joyce Onyango referred to personality differences and difficulties with Irena Punchard. She said ‘some of us are quite difficult to understand’ and added that she now got on with Irena better and did not think the difficulties were on the grounds of race.  Joyce Onyango stated that she thought that the Claimant had been spoken to by Irena too loudly and agreed that everyone (of all races) found Irena Punchard difficult to work with. Ms Punchard accepted before the Tribunal that on one occasion she had spoken loudly to the Claimant and agreed with Joyce Onyango that it had been unprofessional of her.
  32.16 	The Claimant was not alone in finding that Irena Punchard could speak to her harshly and others who reported such behaviour on the part of Irena Punchard were of ethnic minorities. Balwinder Nath is from a different ethnic minority. There was not evidence of similar treatment of white colleagues.”

13.	In their conclusions on this aspect of the claim at paragraph 33-37 the Employment Tribunal reason in this way:
 (1)	The Claimant’s evidence that Ms Punchard spoke to her in a hostile manner was to some extent supported by what two other members of staff, Joyce Onyango and Balwinder Nath had said to Mr Bloor during the course of his investigation into, among others, her complaints against Ms Punchard.  They did not give evidence before the Employment Tribunal.  Both were members of an ethnic minority.

(2)	There was no evidence of white staff complaining about Ms Punchard’s behaviour towards them,

(3)	That supporting evidence supported the Claimant’s account that in treating her harshly she was less favourably treated than white members of staff on the grounds of her colour.

(4)	Looking at the explanation for the treatment complained of none was given, but only a denial that it happened.  Yet Ms Punchard admitted that on one occasion she may have spoken harshly to the Claimant and in an unprofessional manner.  Her explanation was that the needs of the patient demanded it.  The Employment Tribunal‘s finding (para. 36) however was that the harsh treatment occurred on more than one occasion and that it appeared to be applied to non-white staff and no explanation (for these additional occasions) was provided.

(5)	Accordingly the Claimant’s complaint had, in this respect, been made out.

14.	In challenging that finding Mr Brown submits (a) that the Employment Tribunal overlooked their earlier finding (para 32.14) that Joyce Onyango had stated that she agreed that everyone (of all races) found Ms Punchard difficult to work with, (b) that no proper consideration was given to Ms Punchard’s explanation of the one admitted occasion of speaking harshly to the Claimant; the needs of the patient and (c) that there was inadequate primary fact finding as to what precisely Ms Punchard did or said to the Claimant which amounted to ‘harsh treatment’.  

15.	We have carefully considered those criticisms but prefer the answers provided by Mr Kendall.  The key findings are (a) that Ms Punchard spoke harshly to the Claimant on more than one (admitted) occasion (b) Ms Punchard did not treat white staff in that way and (c) no explanation was given, other than a denial which was not accepted by the Employment Tribunal, for Ms Punchard ‘s treatment on those other occasions.  In these circumstances it was open to the Employment Tribunal, applying the King guidance to conclude that this was less favourable treatment of the Claimant by Ms Punchard on grounds of her colour, for which, additionally, the Trust was vicariously responsible and, applying s54A RRA (see Chagger) they were bound to conclude was unlawfully discriminatory.  Accordingly this part of the appeal by Ms Punchard, the Second Respondent, fails and is dismissed.

16.	Turning separately to the allegations of direct discrimination made against the Trust (other than that affecting Ms Punchard) the Employment Tribunal made three separate findings adverse to the Trust (having rejected three claims dealt with at paras. 42-45).  These were:

(1)	Transfer of the Claimant from OPD (Transfer)
(2)	Banning her from visiting OPD (The ban)
(3)	Disciplinary process in relation to sickness absences including threat of dismissal (Sickness)

We shall address the Trust’s challenge to each of these findings in turn.

Transfer
17.	The factual background to the transfer, the Employment Tribunal found, is that the Claimant lodged her first grievance on 15 January, complaining of her alleged treatment in the OPD since she joined that Department in August 2006.  A meeting was arranged to discuss her complaints with Ms Reed on 31 January.  She then lodged a second grievance on 15 February complaining of race discrimination and victimisation by four members of staff, including Ms Punchard.  She also served a race questionnaire on the Trust that day.  A further meeting was arranged for 1 March on 26 February by Ms Wilkinson.  However, on 28 February the Claimant faxed Ms Wilkinson to cancel the meeting fixed for 1 March, citing as her reasons that she had been abandoned by her trade union and a lack of trust and confidence in her employer.

18.	Thereafter Ms Wilkinson telephoned the Claimant at 4.40 pm on 28 February informing the Claimant that a decision had been made to transfer her out of the OPD.  It will be recalled that at this time the Claimant had been off sick continuously following her RTA since 3 January.  Mr Bloor was then appointed to investigate her grievances.

19.	In analysing this head of claim as a complaint of direct discrimination the Employment Tribunal (paras. 46-48) first constructed a hypothetical comparator, observing that there was no actual comparator, namely a white person who had made a series of ‘Claimants’ (sic. complaints) about her colleagues, alleging bullying.

20.	Pausing there, Mr Brown submits that in fact there was evidence before the Employment Tribunal that a white employee, Kerry Woods, had been transferred whilst the individual she complained about remained in their original Department.  Mr Kendall responds that the case of Ms Woods was raised late in the proceedings and that she was not a true comparator because the Claimant was transferred against her will, as the Employment Tribunal record at paragraph 48 of their reasons.

21.	Despite Mr Kendall’s best endeavours we are persuaded by Mr Brown that the Employment Tribunal’s primary fact-finding is defective in this respect.  There is no mention of Ms Woods in their reasons.  If indeed they concluded that Ms Woods was not a true comparator in that her circumstances were not the same or not materially different (RRA s3(4) it seems to us that they were bound to say so and explain why she was not.

22.	Continuing with the Employment Tribunal’s line of reasoning, they found it difficult, if not impossible to answer the question whether, in transferring the Claimant the Trust had prima facie treated her less favourably than the hypothetical comparator without going straight to the question why they did so, referring to Shamoon and the Court of Appeal decision in Brown v London Borough of Croydon [2007] IRLR 259.

23.	Pausing again we think that the reference to those two cases discloses a confusion in their reasoning.  The point in Brown, which post-dated the introduction of s54A and the Court’s guidance in Igen, upholding the approach of this appeal tribunal (Elias J presiding) in the Brown case, was that a claimant will not be disadvantaged if the Employment Tribunal assumes that he has passed stage 1 of the Igen test and then proceeds straight to stage 2 in finding that the Respondent has provided a satisfactory, non-discriminatory reason for the treatment of which complaint is made by the Claimant.

24.	That is not the present case, where the Employment Tribunal went on to reject the Trust’s explanation for the transfer.

25.	Even assuming (see Shamoon) that it was legitimate for the Employment Tribunal to ask itself the question why was the Claimant transferred we agree with Mr Brown that it is unclear why the Employment Tribunal inferred that it was on grounds of the Claimant’s colour.  Their principal criticism of the Trust appears to be the lack of consultation with the Claimant before transferring her.  But there is no explanation by the Employment Tribunal as to why, if it be the case, they inferred that a white person would have been consulted.  Again, there is no finding, for instance, as to whether or not Ms Woods was consulted before her transfer.  The mere fact that the Claimant’s contract of employment stated that major changes of duties would only occur after consultation with her does not give rise to an inference of discrimination on grounds of colour if the Trust would have treated a white employee in the same way.  As Zafar makes clear; unreasonable treatment is not of itself discriminatory treatment.

26.	Finally, the Trust’s explanation for the transfer.  This was threefold, the Employment Tribunal record (para. 46); it was concerned as to the nature of the allegations, that the grievance was against the OPD as a whole and because of the way the Claimant spoke (in her written grievance) of her life being in danger.  The Employment Tribunal rejected that explanation, inferring that the reason was on grounds of the Claimant’s colour, but their reasoning is difficult to follow.  Whilst it may well have been prudent to examine the Claimant’s statement that she regarded her life as being in danger (if she returned to the OPD) by way of consultation with her, the fact remained that that was what she said.  It is difficult to imagine a more pressing, non-discriminatory reason for transferring an employee that she perceived, rightly or wrongly, that if she returned to work in her original department her life would be in danger.

27.	For all these reasons we accept Mr Brown’s submission that the Employment Tribunal’s reasoning in relation to the transfer cannot stand and that finding must be set aside on appeal.

The ban
28.	The factual findings by the Employment Tribunal (para. 32.40) were that on 7 March 2007 the Claimant visited the OPD.  There was then no restriction on her visiting the hospital and on that day she attended (as a patient) for physiotherapy following her RTA.  Whilst at the hospital she went to the Dermatology Clinic to collect her mail.  She there saw and spoke to Naomi Burton, Joyce Onyango and Ms Punchard.  The Employment Tribunal then record:

“Her visit appeared to cause some alarm on the part of the staff.  The alarm felt by those staff was sufficient for a general alert called ‘Code Victor’ to be raised across the Hospital.”

29.	The Employment Tribunal go on to explain that Code Victor is an emergency call to porters and the Duty Manager;  it is reserved for serious matters.  When Ms Page, Head of Patient Services, who gave evidence before the Employment Tribunal, attended the Department she found that the Claimant had already left, Ms Punchard was very upset and Ms Onyango was quite distressed.  The result of that incident was that on the following day Ms Wilkinson wrote to the Claimant instructing her to refrain from visiting the OPD and speaking to ‘witnesses’.

30.	The Employment Tribunal express their conclusions on this head of claim at paragraph 50.  They record that a hypothetical comparator would be a white employee who had made a series of claims about bullying and who visited her work department in circumstances where her colleagues were ‘disturbed’ by the visit.  Without considering whether a prima facie case of less favourable treatment, making that comparison, had been made out by the Claimant, the Employment Tribunal immediately proceed to characterize Ms Wilkinson ‘s explanation for the ban as ‘weak’.  They opined that it was not necessary to ban the Claimant from the Department in order to stop her from speaking to witnesses, but do not deal with the effect which her visit, they had earlier found, presumably accepting Ms Page’s evidence which they recorded without rejecting it, had on not only Ms Punchard but also Ms Onyango, who is black.  The position becomes even more curious when we look at the Employment Tribunal’s reasons (para. 51) for rejecting the claim of victimisation based on the ban.  We set out the words there used by the Employment Tribunal:

“Though we have regarded Ms Wilkinson’s explanation as unsatisfactory in the context of race discrimination, the explanation for banning her from visiting the department was that she had been there, not that she had made claims and this was therefore not an act of victimisation.”

31.	Whilst the statutory torts of direct discrimination and victimisation differ, it is not immediately apparent to us why the Employment Tribunal made the causative link between the ban, in the circumstances in which it arose, particularly the distress caused to Ms Punchard and Ms Onyango and the Claimant’s colour, but not her protected acts.

32.	In support of the Employment Tribunal’s finding of direct discrimination in relation to the ban, Mr Kendall has taken us to some general observations by May LJ as to the importance of the Employment Tribunal’s assessment, having seen and heard the witnesses, as to the thinking of the person (here, Ms Wilkinson) against whom discrimination is alleged; see Noone v North West Thames RHA (1988) IRLR 195, para. 28, and the view expressed by Elias J in Laing v Manchester City Council [2006] ICR 1519, para. 73, as to the stage in the two stage process at which the inference of possible discrimination becomes justifiable may lead to artificial distinctions.

33.	We do not doubt the wisdom of those general statements but we return to the particular.  Nowhere, in our judgment, does this Employment Tribunal properly deal with the critical issue; why was the Trust’s explanation, that the Claimant had managed to cause distress to both Ms Punchard and Ms Onyango on her visit, for the ban rejected? Why is it said that a white comparator would have been treated any differently?  The absence of any answer by the Employment Tribunal to these fundamental questions renders their conclusion on this part of the claim unsustainable in our opinion.

Disciplinary process in relation to sickness
34.	On 15 March the Claimant was certified unfit to return to work for a further two months.  A meeting was arranged for Ms Jerome to see the Claimant about her sick absence on 21 March.  The Claimant did not attend and gave no notice to Ms Jerome that she would not attend.  Consequently Ms Jerome wrote to her on 23 March saying that she was going to treat her non-attendance as a disciplinary matter and required her to attend a disciplinary hearing on 11 April.  The Claimant’s response was to raise a fresh grievance about Ms Jerome on 29 March.  On 11 April the Claimant did not attend the disciplinary hearing.  She had been warned that if she did not attend a decision would be taken in her absence.  The Employment Tribunal found (para. 32.50):

“Ms Jerome decided, because of what she saw as the Claimant’s deliberate failure to attend the hearing, to issue a final warning, which would last for 12 months.  The Claimant was given a right to appeal …  In her final paragraph Ms Jerome sought to make it clear that she was responsible for the Claimant’s management and said it was extremely important that the Claimant recognised this and any further breach of conduct would result in dismissal in the absence of important mitigation.”

35.	The Employment Tribunal expressed its view on this part of the claim at paragraphs 52‑55.  They broke it down into two separate matters: the written warning and the threat of dismissal. As to the first, they regarded the warning as an excessive sanction; at most only a verbal warning was ‘reasonable’.

36.	As to the threat of dismissal the Employment Tribunal moved, in the absence of an actual comparator, to the ‘reason why question’ as articulated by Lord Nicholls in Shamoon.  They concluded that it was premature for the Trust, through Ms Jerome (we assume that the reference in paragraph 55 to the Second Respondent (Ms Punchard) is simply an error by the Employment Tribunal) to mention the possibility of dismissal, when issuing a final written warning and add:

“In all the circumstances the Tribunal infers that the reason why Ms Jerome mentioned the possibility of dismissal at this early stage in the process is associated with the Claimant’s colour and that a white person would not have been subjected to that threat so early in the process.”

37.	Without in anyway conceding the point Mr Kendall acknowledged that the Claimant had some difficulty in sustaining this finding.  We agree.  The starting point must be the primary facts.  Asked to attend a sickness review on 21 March the Claimant simply did not turn up without having shown the basic courtesy to her manager of giving advance warning.  Having been invited to attend a disciplinary hearing on 11 April she again failed to do so.  There is no finding by the Employment Tribunal that, whilst she was certified unfit for work, she was not fit to attend either meeting, nor was that ever suggested by the Claimant.

38.	It is not for this tribunal to substitute its industrial experience for that of the Employment Tribunal; however, on the facts, we find it surprising that a final written warning, itself containing the ‘threat’ of dismissal in the event of future disregard of management instructions to attend meetings, fell outside the range of responses open to a reasonable employer.

39.	However, more to the point, we can discern no explanation in the Employment Tribunal’s reasoning as to how they came to conclude that the treatment afforded to the Claimant by Ms Jerome (who was unable to attend the hearing by reason of her own illness; para. 8) was by reason of her colour.  The fact that the Employment Tribunal thought that a lesser sanction, a verbal warning, would have been appropriate for what was self-evidently a flagrant disregard of Ms Jerome’s managerial authority, does not begin to bridge the gap between the treatment complained of and the Claimant’s colour.  Why is it said that a white employee who behaved in this way would have been treated any differently?  We simply are not told.

40.	In these circumstances we accept Mr Brown’s submission that this finding, based on the Employment Tribunal’s lack of clear reasoning, cannot stand.

Victimisation
41.	The Employment Tribunal found that the Trust victimised the Claimant contrary to s2 RRA again in three respects:
(1)	Transfer
(2)	Sickness
(3)	Dismissal

They rejected a claim of victimisation based on the ban, as we have earlier observed.  Taking each of the three heads in turn:

Transfer
42.	Quite simply the Employment Tribunal’s findings at paragraph 49 are wholly inadequate.  They there say:

“Considered as an act of victimisation the Tribunal can see that the reason for the transfer was that the Claimant had made claims which included claims of race discrimination.  In our judgment the transfer was quite clearly an act of victimisation on the ground that the Claimant had made the protected act of complaining about race discrimination.”

43.	Why was it quite clearly an act of victimisation, we ask rhetorically?  That the Claimant had earlier done protected acts and that she was banned from attending the OPD by Ms Wilkinson are facts not in dispute.  But how is the link made, consciously or subconsciously in Ms Wilkinson’s mind between the ban and the protected acts, as opposed to the ban immediately following the Claimant’s visit to OPD on 7 March, on which occasion she upset Ms Punchard and Ms Onyango?  Again we are not told and proper reasoning by the Employment Tribunal requires that process to be undertaken.  We shall allow the Trust’s appeal on this aspect of the case.

Sickness
44.	We have reached a similar conclusion on this aspect of the case.

45.	At paragraph  54 the Employment Tribunal say:
“54.	We next considered the imposition of the final written warning as a potential act of victimisation. Ms Jerome was clearly aware of the claims that the Claimant had made. We were not satisfied with Ms Jerome's explanation for imposing a final written warning.  Imposing such a warning cannot be said to be reasonable. Given that Ms Jerome was aware of the various claims that the Claimant had made, we think, on the balance of probabilities, that the reason Ms Jerome imposed this excessive sanction was because the Claimant had made the claims that she had made.”

And at para 56:
 “56.	Regarded as an act of victimisation the Tribunal is clear that given that Ms Jerome's explanation for threatening dismissal is unsatisfactory the reason for mentioning it at that stage cannot be disassociated from the fact that the Claimant had made a series of claims and we think the reason for it was that she had made her claims of race discrimination.”

46.	Again we ask, why?  Although Ms Jerome was aware of the protected acts done by the Claimant we return to our observations on the direct discrimination claim based on these facts.  We cannot accept that it was permissible for the Employment Tribunal to conclude, without more, that because they took the view that an oral warning was the extent of a reasonable sanction open to Ms Jerome in the particular circumstances outlined earlier and the final written warning contained the inevitable threat of dismissal in the future in the event of further transgression(s) by the Claimant, the actions of Ms Jerome were causally connected to the protected acts rather than the Claimant’s conduct, or that another employee who had behaved in the same way as the Claimant but had not done the protected acts would have been treated more favourably.

47.	For these reasons the findings of victimisation under this head must also be set aside.

Dismissal
48.	The facts leading to the Claimant’s dismissal by Mr Heavisides on 29 June 2007 were, the Employment Tribunal found, these.  Mr Heavisides wrote to the Claimant on 27 April inviting her to a meeting on 29 May to discuss her grievances, following a report by Mr Bloor as to his investigation.  He was also to consider transferring her back to OPD.

49.	At this stage the Claimant was on sick leave.  Her entitlement to half pay would expire on 4 June.  Her appeal against the final warning given by Ms Jerome was rejected as having been lodged out of time.  She saw Mr Heavisides on 29 May.  He rejected her grievances.  She appealed that decision and on 20 June lodged her first Form ET1.  At paragraph 32.66 the Employment Tribunal simply record that she attended a meeting with Mr Heavisides on 29 June: the minutes of that meeting are identified and at the end of the meeting she was dismissed.

50.	The Notes of that meeting are before us (Bundle; pages 52 – 58).  During that meeting, according to the Notes which the Employment Tribunal does not find to be inaccurate, the Claimant reiterates her loss of confidence in the Trust and Mr Heavisides acknowledged the breakdown in the relationship of trust and confidence between the Claimant and the Trust, in the event Mr Heavisides’ stated reason for dismissing her was ‘Any other Substantial Reason’ (a reference to s98(1)(b) ERA 1996).

51.	The Employment Tribunal’s reasoning at paragraphs 59-62 is again, in our judgment, fatally flawed.  They find that the offer of mediation which Mr Heavisides initially offered to the Claimant was not genuine; that having rejected her grievance he was seeking to circumvent her appeal against that decision and concluded that the reason why he decided to dismiss her was because she had made a series of claims which had not been resolved.  They add that the reason why the Claimant had lost trust and confidence in the Trust was largely due to the way in which her claims had been dealt with.

52.	In our judgment clear reasoning is necessary to show why the Employment Tribunal concluded that it was the protected acts done by the Claimant which caused Mr Heavisides to dismiss her rather than the loss of trust and confidence.  There is also an element of unreasonableness creeping in (no genuine offer of mediation) without any attempt to analyse how Mr Heavisides would have dealt with a comparator employee who had lost confidence in the Trust but had not done the protected acts of the Claimant.

53.	In short, the lack of coherent reasoning renders this part of the decision unsustainable.

Unfair Dismissal
54.	Finally the Employment Tribunal’s reasoning in relation to the separate complaint of unfair dismissal (para. 63) (a) depends in part on their earlier findings which we have set aside and (b) is, itself, not clearly reasoned, as we think Mr Kendall fairly acknowledged.  In the circumstances we are satisfied that this finding must also be set aside.

Disposal
55.	It follows that the Employment Tribunal’s single finding of direct discrimination made against Ms Punchard, and through her the Trust, stands.  The remaining findings made against the Trust are set aside; the appeal succeeds to that extent.

56.	It would not be appropriate for this Tribunal to affirm or reverse those findings.  A rehearing before the fact-finding tribunal is required.  We have considered Mr Kendall’s submission that the matter should return to the same Employment Tribunal but we agree with Mr Brown that in view of our findings on appeal remission should be to a fresh Employment Tribunal.  Consequently we direct that the Employment Tribunal’s findings of direct discrimination, victimisation and unfair dismissal shall be re-heard by a different Employment Tribunal to be appointed by the Regional Employment Judge.

57.	Finally a point was raised in discussion as to whether, on remission the next Employment Tribunal should see (a) the original Employment Tribunal judgment of Judge Southam’s tribunal and (b) this EAT Judgment.  In our view the answer to the first question is no and the second yes.