Appeal No. UKEAT/0263/10/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 2 December 2010 

Before
THE HONOURABLE MR JUSTICE LANGSTAFF
MRS R CHAPMAN
MR P SMITH

MRS E WASON & MR D WASON	APPELLANTS

HOLBORN COMMUNITY ASSOCATION	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellants	MR JOE SYKES
(Representative)
Employment Law Centres
107 Fleet Street
London
EC4A 2AB
	
For the Respondent	MR LAWRENCE JONES 
(of Counsel) and 
MR OLIVER ROCOS
(of Counsel)
8 Stone Buildings
Lincoln’s Inn
London
WC2A 3TA	

SUMMARY
CONTRACT OF EMPLOYMENT – Wrongful dismissal
UNFAIR DISMISSAL – Constructive dismissal

Argument that employer failed to tell Second Claimant, who together with the First Claimant shared work duties for the Respondent employer by private arrangement between the Claimants, that it was accepting his repudiatory conduct (not turning up for work, ever again, though asked to do so) and has therefore never terminated his contract, and that an unfair dismissal claim first made some 15 months later by him and some 9 months later by her was thus within time, was rejected as wholly without merit.  Although the date of termination for the purposes of statutory rights may be different from the contractually determined date of termination of the contract of employment, the passage of time and circumstances were such that the Claimants must have been aware they were no longer employed.

THE HONOURABLE MR JUSTICE LANGSTAFF

1.	The argument in this appeal has demonstrated throughout the day the dangers of losing sight of reality by an over concentration upon legal technicalities which have no proper application to the facts actually underlying the issues to which they are said to relate.  

2.	The background of an appeal from a decision of the Tribunal at London (Central), Reasons for which were given on 4 January 2010, is the interlinked employment and work which the First and Second Claimant did for the Respondent and the nature of the Respondent itself.  As to the latter, the Respondent is a charity and company limited by guarantee which runs a community centre at Bedford House and a resource centre both in London, WC1, as its name suggests.

3.	The Tribunal were to find that the Association’s officers are all volunteers.  They devote a considerable amount of their time to looking after the Association’s affairs but which have become complicated not least by changes in funding arrangements.  The Tribunal plainly regarded those who ran the Association as inexperienced amateurs.  

4.	They engaged the elder Claimant, Mrs Esther Wason, as a cleaner in 2003, both at Bedford House and at a resource centre they operated.  She had a son, the Second Claimant, Mr Wason.  He did some cleaning work in her stead from time to time and, as time progressed, more and more regularly.   By June or July 2004 the Tribunal found that Mrs Wason asked that her son should be paid instead of her for doing the work that they both did of cleaning.  This was understood by the Association as meaning that she was asking that the job should be transferred to her son.  The Tribunal concluded that that is what happened; significantly that he was put on the payroll, he was paid for the cleaning work which had been done, but significantly also that the Tribunal concluded that she too remained an employee of the Association.  

5.	The two contracts were, as the Tribunal found, interrelated after this change in 2004.  In paragraph 31 of its Reasons the Tribunal concluded that Mrs Wason would cover for her son when he was on leave and that was by agreement with the Association.  They judged that this was a continuing overarching employment contract.  It legally obliged her to attend the premises and to carry out cleaning when her son was on leave.  That is a specific finding of the Tribunal as to the obligations which were contained in what was, understandably, a somewhat ad hoc arrangement even although the Tribunal had found, and we have seen, a document showing that she had had terms and conditions of employment which was given to her earlier in writing.  

6.	In paragraph 31, in two other places, the Tribunal emphasises that the relationship between his employment and her employment was that she would cover during his leave.  The word ‘his’ was plainly stressed in this paragraph.  Thus, toward the end of that paragraph, the Tribunal states: 

“Accordingly, on our findings, Mrs Wason remained in the Respondent’s employ but only in respect of the 6 weeks in the year when Mr Wason was on leave.  We do not think that this contract of employment was joint with her son, or extended to the other times when Mrs Wason covered for her son because those times were agreed between them and not with the Respondent.”

7.	As it happened that finding entirely coincided with a finding made by an earlier Tribunal, as to which there was argument below as to whether it did or did not create an issue estoppel, which was that the employment of Mrs Wason was contingent upon the employment of her son.  The Tribunal with which we are concerned did not direct itself by reference to any question of issue estoppel and therefore we declined to hear argument about it.

8.	Although the relationship was as the Tribunal found, it was also clear that they found as a fact that in practice (see paragraph 28) throughout the year when Mr Wason was not on leave she also did some work covering for him.  She was not paid directly for that work.  He was.  They were vague and unclear about it but the Tribunal says, and this may be of importance:

“…the arrangement was that this would be agreed between them and never agreed in advance with the Respondent.  The Respondent would just find that one or other of them would attend to clean.  There was no prior agreement either as to the timing of Mr Wason’s annual leave, although he would tend to take his leave at the same time each year.”

9.	After this had been continuing for some three years the time came that the Respondent’s officers decided that they needed to formalise the contractual position in respect of the cleaning job.  On 4 April 2007 they handed Mr Wason three contracts to sign.  One of those was for a caretaking job which ultimately he did indeed sign.  Two, which remained unsigned, were in respect of the cleaning jobs respectively at Millman Street, the resource centre, and at Bedford House.

10.	It is plain from letters which we were shown by Mr Sykes that the employer regarded the signing of these contracts and formalising of the arrangements as a matter of some importance.  Although we are bound by the findings of the Tribunal they derive from and are understood by reference to the letter of 27 March 2007, page 151, which was to Mrs Wason seeking to formalise the arrangement whereby she had done some work informally but not, it was said, as an employee to cover for her son.  A similar letter was written (see page 153) to her son.  

11.	The correspondence continues (see the bundle of documents) until on 25 May 2007 the Association, through Elaine Duigenan, Chair of the Board of Trustees, wrote to both Mrs Wason and separately to Mr Wason to say, amongst other matters: -

“Since you have not given me any indication of your intentions either verbally or in writing, I am now going to assume that you no longer wish to work for [the Association] unless I receive your verbal agreement, to the suggested arrangement in the letter dated 27th March, by 31st May 2007.
Upon getting this agreement you will be issued with a contract as a relief cleaner which you will need to sign.”

There were similar words, though not identical, in the letter to Mr Wason.  The Wasons were concerned about this request, which Mr Sykes terms a variation of the contractual arrangement.  

12.	What the Tribunal found to have occurred was then that, by a letter of 7 June 2007, the Respondents asked Mr Wason not to attend for work for the time being since they were discussing matters with their lawyers.  This, said the Tribunal, amounted to a suspension but, as the letter explained, Mr Wason was paid during this time (paragraph 34).  

13.	Then, by a letter dated 28 June 2007, he was asked to return to work as from the week beginning 2 July 2007.  The Tribunal heard argument as to the meaning of this letter.  The Tribunal came to a conclusion of fact which Mr Sykes, though he would wish to argue that the Tribunal did not have to come to that finding of fact, accepts as such: namely that this letter was requiring Mr Wason to return to his cleaning work as well as his caretaking work.  The Tribunal notes at the foot of its paragraph 35 that it was clear to it, and it says to him, that he was being called back to both jobs.  Instead he made a decision only to do the caretaking work. He never returned to do the cleaning work.

14.	Then the Tribunal said this at paragraph 36:

“We agree with the way the Respondent has referred to Mr Wason’s failure to return to the cleaning job on 2 July 2007 and thereafter as a repudiation of his contract of employment to do cleaning work.  This did not by itself end the contract, however, it was ended when the Respondent did some act inconsistent with the continuation of the contract.  This happened when an agency cleaner was engaged to carry out the cleaning work and when at about the same time Ms Shickle informed Riley Payroll Services (who provided the Respondent with payroll services) that Mr Wason should no longer be paid for cleaning and could be removed from the payroll in respect of that job.  The Tribunal finds that, on the balance of probabilities, this happened on Friday, 20 July 2007.  Subsequently, in October 2007 the agency cleaner was taken on as a full time employee.
37	On Mr Wason’s behalf, Mr Sykes submitted that an acceptance of a repudiatory breach needs to be communicated to the obligor in breach, to be effective.  We do not accept that submission.  If there is such a rule it would be unworkable in the employer-employee context, where a reluctant employee may be difficult to contact.  In any case Mr Wason continued to attend the Respondent’s premises as caretaker, and Mrs Wason also attended as a user of the community centre so it is highly likely that he would have known that another cleaner was now doing the cleaning work.  Even if he was not aware of that, he would be aware that there was cleaning work to done and since he was not doing it, most likely someone else had been appointed to do it.
38	Accordingly on 20 July 2007 Mr Wason’s contract came to an end.  It is clear that Mrs Wason’s cleaning contract of employment also came to an end at the same time.  It depended on the continued existence of her son’s contract, since the obligations under it arose only upon his taking leave and that was not going to happen again unless new arrangements were made.”

15.	The date of 20 July 2007 is a matter of some importance given the overall conclusions of the Employment Tribunal.  What the Tribunal had to consider were claims arising out of the termination of employment made by the First and Second Claimants.  The various claims that were made and their resolution was set out in a separate Judgment, so called, given on 13 April 2010, but deriving from the reasons we have already been considering.  That concluded that both contracts of employment ended on 20 July 2007.  As to the First Claimant, having been dismissed on 20 July 2007 her claim for unfair dismissal was out of time, and it was struck out for that reason.  Her claim was brought on 14 May 2008, therefore some nine months later.  There is a three month time limit.

16.	The First Claimant’s claim that she was discriminated against under the Race Relations Act 1976 by her dismissal from the cleaning job was also out of time, and was struck out.  The First Claimant’s claims for notice pay, for unauthorised deduction of wages and for breach of contract were dismissed.  Those, too, fell on time grounds.  The time grounds were crucially dependent upon the date of termination of employment for the purposes of those statutory rights.  We emphasise those last six words, since the date might not be the same as that of the actual contractual termination of employment according to common law.

17.	The Second Claimant’s unauthorised deduction of wages claim in respect of cleaning work was dismissed and the Second Claimant’s claims that he was subjected to racial harassment and direct racial discrimination with respect to his cleaning job were out of time and were struck out.  Those, too, depended upon the expiry of any relevant primary time limit.

18.	There were seventh and eighth findings which require separate and different consideration.  Those were the finding that the Second Claimant, Mr Wason, was dismissed as from 1 September 2008 for redundancy (from his caretaking job), that that dismissal was fair, and his claim for unfair dismissal failed, and a conclusion that not only was there no ground to sustain unfair dismissal but also that the dismissal was not on the grounds of race (he had alleged that both direct discrimination and victimisation gave rise to his dismissal).  His claim relevantly was brought on 15 September 2008, therefore more than a year after the events of July 2007, and if the Tribunal were entitled to rely upon the date they identified of 20 July 2007 his claims would be even more out of time than his mother’s.  He was in time only so far as the allegations relating to his dismissal from his post as a care taker were concerned.

19.	Before us Mr Sykes has argued that the critical matter for a Tribunal to determine for the purposes of starting time running within the statutes to determine whether a claim is brought within the time permitted by the relevant statute is to be determined in accordance with what those statutes require and not by the operation of common law.  He points therefore to the case of Gisda Cyf v Barratt [2010] UKSC 41, a decision of the Supreme Court in which Lord Kerr gave the judgment of the court.  

20.	The facts there were very different.  The case concerned the starting date for the period of three months applicable to the bringing of a claim for unfair dismissal.  The employee had been subject to disciplinary proceedings. She was accused of misconduct.  Following those proceedings, she was told that she could expect to receive a letter on a Thursday.  She knew she was at risk of dismissal, but because her sister, in London, had had a baby, rather than pick up the letter which might have come through the post, she left home to go there.  Later on the Thursday a recorded delivery letter arrived at home for her.  She had left no instructions for it to be opened or read and so it lay awaiting her return.  She did not return until the Sunday and being late in the evening did not then open the letter.  It was the next morning that she did so.  The question arose whether the date of termination, which was relevant for statutory purposes, was the date on which the employers accepted her conduct as repudiating her obligations under the contract, thereby justifying them in accepting that repudiation and dismissing her (that would be once they had accepted the conclusions to which they came after the disciplinary hearing), or when the letter notifying her of that dismissal was sent, when it was delivered or when it was actually read.  

21.	The Supreme Court was therefore dealing with a case in which matters of just a few hours were of critical importance.  At paragraph 36 Lord Kerr said: 

“An essential part of the protection of employees is the requirement that they be informed of any possible breach of their rights.  For that reason we emphatically agree with the EAT’s view in McMaster that the doctrine of constructive knowledge has no place in the debate as to whether a dismissal has been communicated.  For the short time of three months to begin to run against an employee, he or she must be informed of the event that triggers the start of that period, namely their dismissal or at least he or she must have the chance to find out that that short period has begun.”

22.	He went on, in paragraph 37, to give the Court’s view that it did not consider that what had been described as the general law of contract should provide a preliminary guide to the proper interpretation of section 97 of the Employment Rights Act 1996, much less than it should be determinative of that issue.  

23.	Accordingly the test to be applied is first that there must be communication; that is, employees must be put in a position where they know that they have been dismissed.  The essential point, before any statutory period may start to run, is the employee must know that she or he no longer has a job.  That is plainly the issue to which communication is directed.

24.	What Mr Sykes submitted was that in the paragraphs we have quoted the Tribunal was addressing and addressing only the common law of dismissal, that is, indeed not even using the word ‘dismissal’, but the acceptance of repudiatory conduct by the party in breach of the contract.  He might argue that the words in paragraph 37, that an acceptance of a repudiatory breach does not need to be communicated to be effective, might be an error of law, though he did not actually do so.  More centrally he argues that here there is no sign that the Tribunal were actually addressing the question which was the starting point of their deliberations, that is what was the date of termination for the purposes of the statutory time limits beginning to run.

25.	He argued that the Tribunal could not properly conclude from what had happened that Mr Wason had ever been told: that there had been no communication to him.  He characterises what had happened prior to 2 July 2007 as Mr Wason being entitled to withhold his labour because he was in dispute with his employer, concerned that he was being required to work under a varied contract when he was not prepared to accept the variation.  To go back to work, as required by the employer, was, as a matter of fact, something which (given the Tribunal’s findings) he understood to be a requirement to return to his caretaking job - but if it had been to his cleaning job, Mr Sykes argues on his behalf, he would have been entitled and indeed must seen as demonstrating his resistance to the imposition of terms upon him which he had not agreed.  Thus, says Mr Sykes, he was here in effect on continuing suspension or in continuing demonstration of his refusal to accept new terms but still and always employed under the original terms since he had not consented to any variation of them.  Thus the Tribunal’s finding that he was dismissed on Friday, 20 July 2007 was one simply reached in error of law.

26.	We consider that the Tribunal was entitled to come to the conclusion it did that at or about the summer of July 2007 there was the starting date of the beginning of running of the time limits.  

27.	We reach that conclusion for these reasons. First, any overview of the facts of this case show that on the facts as found Mr Wason had been employed to clean.  He had been paid for the ten hours per week which he was obliged to spend cleaning for his employers, the Association.  He was told that if he did not agree to a new contract he might lose his job.  We leave aside the rights and wrongs of that for the moment because we are concerned not with them but with the actual date of termination.  He therefore must have known that his continuing employment was in jeopardy if he did not so agree.  

28.	He was put on suspension but that was paid suspension.  The Tribunal found that after 2 July 2007 even though he was told by his employer to return to work (a lawful instruction which, so far as we can see, did not carry with it any necessary requirement to work to any variation of a contract but simply to return to work), he did not work.  After 20 July 2007 he was not paid.  

29.	It seems to us inconceivable that any person who is not providing work and who is not receiving pay for work, who has been required to return to work but refuses to do so, does not realise that he is not in employment unless there is some particular explanation for what has happened.  Mr Sykes, when this was put to him in argument, accepted the general proposition but drew attention to the possibility that employees might, for instance, be on suspension; or one might for instance envisage a situation of “lock out” where there are arguments on both sides.  However, neither of those situations apply here which appears simply, as the lay members point out to me, that of an employee not turning up to work to do the job for which by contract he is entitled to be paid.  If the pay is withdrawn after two weeks what is he to conclude other than that that is effective communication by conduct (if not otherwise) of his employer’s intention?  Moreover, if one applies the wording of the test derived from Gysda, and regards it as applicable generally outside the type of situation where days mattered critically as they did in that case, that is that he or she must be informed of the event or at least he or she must have the chance to find out that that short period has begun. 

30.	Mr Wason, on the findings of fact made in paragraph 37, continued to attend the Respondent’s premises as a caretaker.  So far as we aware there was no material at all before the Employment Tribunal which would have led them to conclude that he had ever asked whether he remained in employment as a cleaner, and indeed they concluded, in paragraph 37 as seems self evident, that it was highly likely that he would have known that another cleaner was now doing the cleaning work.  Here Mr Sykes endeavoured to show us by reference to the contract as a caretaker and the hours of work that the cleaning work would have been done at hours which at the latest ended at 6:30pm whereas the caretakers were, in general, working later in the evenings and so one could not conclude that Mr Wason would necessarily know that someone else had been doing the cleaning work he was (on this argument) contracted to do.  

31.	We regard this argument as frankly unreal.  The premises would either obviously have been cleaned or obviously left uncleaned. The details to which Mr Sykes drew our attention showed that a very large part of the caretaking duties which Mr Wason had to perform during the particular hours he was caretaking involved cleaning tasks or the like.  A Tribunal would have been bound to conclude it would have been obvious someone else was cleaning the premises in daytime – or at the very least entitled so to conclude.  Thus our decision so far as his contract is concerned is that, although we accept that the Tribunal should have had regard to the starting date specified in statute, and were arguably in error of law in that respect, it is nonetheless quite plain and obvious that the conclusion to which it came was right, if not as to the precise date of Friday 20 July 2007 at least to a date very shortly thereafter when, upon non-receipt of his weekly pay package, or by reason of continuing to attend the Respondent’s premises as a caretaker, Mr Wason would have discovered that he was no longer being paid for the job and in the context, plainly, was no longer to be regarded as an employee.

32.	In that context, to commence proceedings in September 2008 was simply far too late on any showing, whatever date might sensibly be supposed for the starting time of the statutory periods.

33.	Paragraph 38 draws attention to the link between the son’s contract and the mother’s.  The Tribunal here came to the conclusion that Mrs Wason’s contract depended on the continued existence of her son’s contract.  We have set out the basis for findings of fact that the Tribunal made which led to this in the earlier part of our judgment; we have come to the conclusion that the Tribunal was entitled to come to this view on analysis of the contractual situation.  Here, again, we must deal with an argument that Mr Sykes put to us.  He argued that in fact the contract was not as the Tribunal had found.  It was that the terms of the contract appeared from what actually happened.  What actually happened was not that Mr Wason cleaned for all but six weeks of the year and his mother for the other six weeks, but that he cleaned for much of the time, together with his mother from time to time during those periods.  They would, as it were, ‘box and cox’ it.  Therefore, since this could not have happened unless the employer were prepared to allow it to happen, the employer must have been taken to affirm what had been going on.  By affirmation Mr Sykes meant positively agreeing to the arrangement with each of Mr and Mrs Wason so as to make this a variation of the contract which had otherwise been offered.

34.	Thus if it be right on this analysis, that in 2004 the contract was that he would work for all the year bar six weeks, the reality was that after that it did not happen, and the reality constitutes the real contract.  

35.	As to this we simply comment that the Tribunal heard the evidence. It had to analyse the arrangements between the parties.  It did so by reference to the documents. It did so by reference to the oral evidence. It came to conclusions which are not obviously wrong.  The findings of fact are for it. It seems to us that we cannot substitute another contract for the contract held to be established; in short, the Tribunal was entitled to take the view it did and it is that view in respect of which we have to examine the consequences.  On that view it does not seem to us that there is anything in paragraph 38 which constitutes an error of law or could constitute an error of law.  All the members of the Tribunal thought the arguments which were put forward by Mr Sykes, though with resilience, were entirely without any merit when looking at the realities of the case.  

36.	It follows, as he accepts, that the first four grounds of appeal must all necessarily fall.  We acknowledge we have not dealt, nor did the Tribunal separately deal, with the question of communication to Mrs Wason.  It may be that this was a consequence of its view expressed in paragraph 37, that what mattered was the contractual analysis and that communication did not matter.  The self same reasoning applies when we ask if this is an error of law, as we think it might well be.  Would it, in this case, make any difference whatsoever to the result properly analysed? For the same reasons that we gave in respect of Mr Wason’s case we cannot see that it would.  This is a case where if she had been regularly boxing and coxing with her son, no longer did so and her son was no longer being paid (which she might perhaps reasonably be expected to know) and if, therefore, the arrangements were (as the Tribunal found) that her contract was necessarily dependent on his and that was the contractual position, she would inevitably understand, if not at exactly the same time as he did but then shortly thereafter, that her contract of employment too had gone.  

37.	It is inconceivable that this could have been within three months of the bringing of her claim in as late as May 2008.  No suggestion was made that it was not reasonably practicable for her to bring a claim within the three months after that date, or (viewed retrospectively) prior to her originating application.

38.	We turn then to the fifth and sixth grounds which are put forward by Mr Sykes.  Here, in the fifth ground, he argues that the Tribunal were guilty of an error of law in their approach to a claim which Mr Wason brought that he had been discriminated again on the race both directly and by victimisation.  

39.	What had happened was that he had been dismissed of his post as a caretaker in September 2008.  The dismissal was confirmed to him by letter of 28 August 2008, see paragraph 54 of the reasoning.  He claimed that that dismissal was unfair.  He claimed that the reason he had been dismissed was because he was of his race and secondly because the employer feared that he would bring proceedings alleging that he had been discriminated against on the grounds of race in respect of other matters in his employment.  The reason that they feared that was, he said, because his mother had done so.  Therefore his claim involved critically the question of why it was that he had been dismissed from his post.  

40.	The conclusions to which the Tribunal came are expressed at paragraphs 73 and 74: 

73	“The evidence adduced by the Respondent demonstrating that the caretaking work on Thursday and Friday evenings was redundant, explaining the decision making process, and the way in which the redundancy was handled proves to us that this was a genuine dismissal for redundancy.  The dismissal was fair.  In deciding this, we take into account that the reason for the dismissal was redundancy and we consider the question of fairness in all the circumstances (including the size and administrative resources of the employer’s undertaking) and whether the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee.  This test is in section 98(4) of the Employment Act 1996.  We determine it in accordance with equity and the substantial merits of the case in accordance with the section.
74	We also find that the Respondent has proved that the decision to dismiss Mr Wason for redundancy was not made on the grounds of race.  Further that he was not treated less favourably (by his dismissal) because of any suspicion that he would bring a race claim nor because of any race claim or allegation made by his mother.  We accept Mr Burdett’s evidence that in fact because Mrs Wason had made those allegations, he was particularly careful to make sure that all decisions regarding Mr Wason were fully justified and supported by sensible reasoning.  He was closely involved in the decisions made concerning Mr Wason in his part of the claims before us and we found his evidence to be particularly compelling, sensible and clear.”

Thus, the Tribunal had not only found what was the reason or principal reason for the dismissal - that was redundancy - but had gone further to ask whether the dismissal by recent redundancy involved any element of race discrimination which amounted to making his dismissal less favourable treatment.

41.	In that light they examined only, so it would seem, events which had taken place between Mrs Wason some time earlier and the Respondent.  That, no doubt, is because Mr Wason did not pursue at the hearing any incidents which were specific to him which might have indicated that he was the victim of discrimination.  The argument, as we understand it, must therefore have been that if the Respondent could be shown to be prejudiced against his mother one could not be satisfied that they were not prejudiced against him and that then might lead to a conclusion that the dismissal, purportedly by reasoning of redundancy, was in fact motivated at least in part by race or, having regard to the conduct of his mother, a fear that he might claim that he had been discriminated against on the grounds of race.  

42.	We draw attention to the way in which the Tribunal’s findings fit in because on reading the decision one might lose sight of the focus which is necessary: that this was his claim in respect of his dismissal which relied upon inferential findings derived from the way in which the employer did or did not treat his mother, and it was in that context, it could only be in that context as we understand, that the Tribunal looked at matters which related to the relationship between her and the Respondent.

43.	At paragraphs 58 and onward the Tribunal record a number of grievances which Mrs Wason made in 2006 and 2007.  They then reminded themselves of the general approach which a Tribunal should take to discrimination claims.  The Tribunal said this:

62	“…discrimination is rarely obvious.  It is usually covert and therefore difficult to prove.  For this reason if we consider that there are facts proved by the Claimant from which we could conclude in the absence of an explanation from the Respondent that the Respondent had committed an act of discrimination, then we would look to the Respondent to prove that there was no discrimination whatsoever.  This reversal of the burden of proof in race discrimination cases is now contained in section 54A of the Race Relations Act 1976.  In victimisation cases under the Act, the section would not apply…”

We pause there to note that that is a reflection of the decision reached in the case of Oyarce v Cheshire County Council [2008] 4 All ER 907:

“…but we would apply similar principles because of the powers of inference which we can apply to such cases.
63	We also remind ourselves that discrimination can also occur unconsciously by the perpetrator.  So that we cannot be satisfied merely from a strong denial that any such discrimination has not taken place.

44.	The Tribunal then said that four matters had caused concern and led the Tribunal to regard the burden of proof as shifting to the Respondent.  Mr Sykes complained that the Tribunal had approached the matter wrongly, as though section 54A of the Race Relations Act 1976 did indeed apply.  The Tribunal did recognise section 54A did not itself apply: they were not applying the statute, but rather adopting the approach which it was permissible to adopt by reference to King v Great British‑China Centre [1991] IRLR 513 CA such that it was open to them to ask the Respondent for an explanation of matters which gave concern.

45.	It occurs to us in this respect that a point made by Mr Jones for the Respondent has considerable force, that here the Tribunal were, if anything, being favourable toward the Claimants whose case they ultimately rejected, so that if they were in any error of law the error of law was one which was in favour of the current Appellant and not adverse to his interests. Mr Sykes is asking us to allow an appeal on the basis that the Tribunal should not have entertained the reversal of the burden of proof as it did: if it regarded the burden as now falling on the employer, it is difficult to see how that disadvantaged the Appellant.

46.	The four matters which gave concern were (1) that the Respondent did not deal with grievances properly; (2) that there was an unfortunate incident on 13 March 2007 when a senior officer of the Respondent purported not to recognise Mrs Wason when she was in the building and marched her to see another member of staff to check her identity, something which must have been a thoroughly demeaning experience for her; (3) the timing of the decision to formalise contracts had two separate explanations, and needed some proper explanation and (4) the Tribunal was unhappy with the way in which the legal case had been conducted by the Respondent in a number of respects spelt out at paragraph 68.  

47.	At paragraph 69 the Tribunal said this, in a paragraph which merits repetition in full:

“Having regarded the burden of proof as shifted to the Respondent, we therefore look to the Respondent to prove on the balance of probabilities that there was no discrimination (and by allied principles) no victimisation whatsoever.  We are satisfied that the Respondent has proved this.  The matters referred to above which caused us concern, we have taken fully into account.  There is some (but not complete) explanation for those particular matters.  The failure to deal with the grievances properly seems to be born initially out of uncertainty how to deal with them, and later by an erroneous belief that Mrs Wason was not an employee and therefore not entitled to a hearing.  Also it is the case that the Association’s officers are all volunteers and devote a considerable amount of their time looking after the Association’s affairs, which had become much more complicated by the changes to funding arrangements.  Mrs Wason’s grievances, which were put in somewhat inflammatory terms, were not regarded as a high priority compared with the other priorities of the Association.”

They had dealt in that paragraph, therefore, with the failure to deal with grievances and concluded that the reason was the way in which the Association was organised and nothing to do with discrimination against her on the grounds of race.

48.	As to the incident of 13 March 2007 the Tribunal accepted the explanation given by Mrs Woodrow, that she simply had not recognised Mrs Wason, and it accepted that she did not obviously appear that day to be a cleaner.  It explained that it accepted the decision that the contracts had to be formalised as having no racial context.  

49.	Then at paragraph 72 it said simply this:

“As for the way the case had been conducted by the Respondent, we think the most likely explanation for this is the inexperience of the officers of the Respondent in conducting such cases.”

50.	Again, if one stands back from the paragraphs which we have quoted and has regard overall to the context within which this decision is written, then as with many decisions by Employment Tribunals what is said must be seen in context.  The context here is the Tribunal explaining its reasoning process.  We read the Tribunal as setting out matters which gave it some concern.  We regard the reference to there being not a complete explanation for some particular matters as demonstrating a refreshing intellectual honesty in the Tribunal.  It is often the case, though perhaps some courts may not always admit it, that some matters are not absolutely certain and clear.  What matters however, is the balance of probabilities.

51.	As for the decisions made this was not, as it seems to us, a Tribunal bending over backwards to find reasons for explaining away conduct which it had already found had no proper explanation.  Mr Sykes argued to the contrary.  He argued that the Tribunal had come to findings expressed between paragraphs 65 and 68 which put it on suspicion. He argues that explanations were given which were not accepted.  Where an explanation by an employer is not accepted, where it might be caused by the race of the person who suffers adversely from the decision, then in the absence of an acceptable explanation it is not for the Tribunal to invent one.  It is rather for the Tribunal to make a finding that there has been discrimination where the burden of proof is reversed.  

52.	This analysis of course demands first that there an explanation is advanced which is rejected.  It seems to us that that is not what the central paragraphs demonstrate here.  Leaving aside for the moment paragraph 72, they show that there were matters that gave the Tribunal concern, which therefore required consideration, as to which, beneficially, it viewed the burden of proof as resting upon the Respondent, but as to which, having looked at the whole facts of the case and the context, including the inexperienced nature of the Respondent’s administration, the explanations given ultimately were regarded as satisfactory on balance.

53.	As to paragraph 72, this was terse and concise and used the words ‘we think’.  Was this therefore the Tribunal, as Mr Sykes argued, substituting its own view for the process of listening to the explanation given by the Respondent and either accepting or rejecting it?  Again, we think context needs to be considered.

54.	This relates back to the fourth matter of concern identified at paragraph 68.  Concern about the way the Tribunal hearing itself had been handled by the Respondent were not raised by the Appellant. They had not been raised by Mrs Wason prior to the hearing of Mr Wason’s claim.  They were concerns which arose entirely in the Tribunal’s own mind.  That is important, because the Tribunal was here drawing conclusions as to what it had seen when making an evaluation of the employer’s conduct overall.  In distinction to the other three matters of concern, to assess the Respondent’s behaviour in this respect did not demand any explanation, as far as we know, from the Respondent: it was a question of evaluation by the Tribunal in the light of all that it had seen.  It was in the position to see how the case was conducted.  The Tribunal heard the witnesses. It saw how they were approached. The Tribunal was in the best place to make this judgment.  The use of the words ‘we think’ do not to us indicate that the Tribunal was here abdicating its proper function, it was simply setting out a conclusion; different words might have been used, but the explanation which was ultimately accepted on the burden of proof as it was (therefore on the balance of probabilities beyond 50 per cent) was that the reason for what had happened was not discrimination but inexperience or mistake.  It may not be a good reason in terms of proper administration but it is a perfectly acceptable reason where the focus of the enquiry is whether a particular action has or has not been made on the grounds of race.  If a particular action has taken place by mistake then it has not taken place on the grounds of race.

55.	Given, then, the way in which the Tribunal drew the matters together at paragraphs 73 and 74, to which we have already referred, it seems plain that the Tribunal here came to the conclusion that there was a dismissal by reason of redundancy (which they had earlier dealt with in some detail and which involved the simple conclusion that the reduction in the number of evening classes meant that there was no reason, on Thursdays and Fridays, to differ from the practice elsewhere in the week of those responsible for the classes themselves, locking up and clearing up afterwards and no longer justifying the employment of a separate caretaker).  They had rationalised and accepted the evidence on that.  The reason, therefore, was not directly and obviously race: it was redundancy and the Tribunal was satisfied (see paragraph 74) of the care which the Respondent had taken in making that decision. 

56.	The conclusion, it seems to us, was one which was within the entitlement of the Employment Tribunal.  

57.	For those reasons we dismiss these appeals, with thanks to counsel on both sides for their patience in enduring the difficult conditions imposed upon us by the weather and the late transfer of this case because of the weather and the cold from the usual premises of the EAT to St Dunstan’s House.

58.	Mr Sykes has very properly reminded us that we have not dealt with the ground of appeal in respect of perversity.  I hope we may be forgiven for this because of the hour and because it was very much a minimal part of his submissions.  He argues in his skeleton argument that the positions which the Tribunal came to were decisions which were Wednesbury unreasonable, alternatively perverse to the threshold of Crofton v Yeboah [2002] IRLR 634 as being manifestly wrong.  He sets out, at paragraphs 27 to 32, matters which relate to the various conclusions of the Tribunal.  He regards the Tribunal as having misapplied issue estoppel theory although, as we have indicated and as we indicated to him in the course of argument, we regard that as a red herring since the Tribunal, as far as we can see, did not address itself materially by reference to any such approach.  

59.	Ultimately we would best summarise our approach to this as simply saying that what is done here is to attempt to reargue the case and argue against findings of fact.  There is no true perversity claim.  There certainly is no way that we found or could have held that the decision to which the Employment Tribunal came was wholly impermissible or such as to cause startlement to any reasonable well informed observer.  Accordingly we cannot accept that there is anything in the perversity appeal. Mr Sykes was, in his oral argument, absolutely right to take it very shortly if he was to take it at all.

Application for Permission to Appeal 
60.	We do not think that there is any basis upon which we would give permission to appeal as to the question of focus upon the EDT as required by statute. We do not accept that our judgment ducked the issue.  As to the application of what was a reasonable opportunity to know of the termination of his employment, in this case, it seems to us that what we did was indicate that at a period of time at or around or shortly after 20 July 2007 there was indeed such a reasonable opportunity - inevitably fact-specific to this case - and therefore the Tribunal had come to was unarguably the right decision.  We do not think that any appeal on the basis we should not so have concluded has a real prospect of success and we refuse it on that basis.  Nor do we think there is any proper basis for an appeal on perversity given the concession in argument that the Tribunal was entitled to draw a conclusion as a matter of fact from the evidence and circumstances of the letter requiring Mr Wason returning to work that he understood that it required him to return to all three jobs, and, thirdly, we do not think this is a case in which there is a compelling reason to hear an appeal albeit it has no reasonable prospects of success so as to clarify what may or may not come within the ambit of the words ‘reasonable opportunity’ (which in this case we have treated as a matter of fact arising in its own particular context).  Permission to appeal refused.