Bashir & Bashir v Sheffield Teaching Hospital NHS Foundation Trust UKEAT/0448/09/ZT

Appeal against ruling that the claimants had been dismissed fairly, after raising several grievances claiming race discrimination. They complained that they had been unable to appeal a finding that they had acted in bad faith, and that this vitiated the fairness of the entire disciplinary process. The appeal was dismissed on the basis that no error of law had been identified in the Tribunal's reasoning, having regard to the facts found.

Appeal No. UKEAT/0448/09/ZT



At the Tribunal

On 26 March 2010

Judgment handed down on 27 May 2010








Transcript of Proceedings



For the Appellant MR COLIN BOURNE (of Counsel) (Appearing under the Direct Access Scheme)

For the Respondent MR JACQUES ALGAZY (of Counsel)

Instructed by: Messrs Beachcroft LLP Solicitors
7 Park Square East



Reason for dismissal including substantial other reason

Procedural fairness/automatically unfair dismissal

The Appellants appealed against the Tribunal's decision that their dismissals were fair, in circumstances where they had presented multiple grievances alleging racially discriminatory treatment and were found by the grievance panel to have acted in bad faith. They complained that their inability to appeal against that finding under the Respondent's grievance procedures, and the role the finding played in their subsequent dismissal vitiated the fairness of the entire disciplinary process. The grounds alleged (1) an error of law by the Tribunal in arriving at their conclusion that the dismissals were fair and (2) perversity.

This was a most unusual case, as the Tribunal's findings of fact demonstrated. The dismissals were found to be not only on the basis of gross misconduct, but also for some other substantial and free-standing reason justifying dismissal, namely the irreparable breakdown of relationships in the department where the Appellants worked. The appeals were dismissed on the basis that no error of law had been identified in the Tribunal's reasoning, having regard to the facts found; and that their decision could not be said to be perverse. Related grounds challenging the findings on wrongful dismissal and victimisation were also dismissed.

  1. The Claimants, Mr and Mrs Bashir, are appealing against the judgment of a Sheffield Employment Tribunal dismissing their claims of race discrimination, victimisation, disability discrimination, unfair dismissal, wrongful dismissal and unlawful deductions from wages. They were both dismissed on 29 April 2008. The Tribunal's judgment was promulgated with Reasons on 23 July 2009.
  1. There is a lengthy history to these claims. Between March 2007 and July 2008 the Claimants had both presented four separate claim forms to the Tribunal, containing complaints of discrimination by both the Respondent Trust ("the Trust") and named individual employees as members of the Trust Board.
  1. The complaints, all of which were resisted, covered a lengthy period of time and included a wide range of detailed allegations. The parties had been ordered to agree a schedule of issues but, regrettably, this had not been achieved even by the first day of the hearing on 23 February 2009. A list of issues in respect of each Claimant's claims was eventually agreed on the second day, before any evidence was called. These lists are annexed to the Tribunal's judgment as an Appendix. The lists alone run to some 25 pages, which gives an indication of the multiplicity of issues arising for determination.
  1. Both the Claimants and the Trust were represented by counsel. The hearing lasted 21 days. Some 27 witnesses gave oral evidence and there were 30 lever arch files of documents running to well over 11,000 pages. The Tribunal's reasoned judgment is 94 pages long, reflecting the extensive factual disputes and the detailed evidence considered by the Tribunal.
  1. The jurisdiction (time limit) issues were all resolved in the Claimants' favour, save in relation to one complaint of race discrimination, and they do not form any part of this appeal. Nor do the complaints of unlawful deduction from wages, direct race discrimination or disability discrimination, which were all dismissed, or dismissed for want of prosecution or upon withdrawal.
  1. The amended grounds of appeal, following an earlier preliminary hearing at the EAT, are now within a fairly narrow compass. They relate entirely to the Claimants' dismissals. Mr Bourne, appearing for the Claimants, contends that the Tribunal erred in law or arrived at a perverse decision in finding (1) that the Claimants had not been unfairly or wrongfully dismissed; and (2) that the dismissals were not acts of victimisation.
  1. The main ground of appeal concerns the decision of the Trust's grievance panel that the Claimants had acted in bad faith in pursuing grievances in the way that they did. Under the Trust's grievance procedure there could be no appeal from that finding, which was made at the final stage of the procedure. The subsequent decision to dismiss the Claimants is said to be founded, in part, on that earlier finding. Mr Bourne submits that it vitiated the entire disciplinary process and rendered the dismissals unfair. The Tribunal's decision to the contrary is in error or unsustainable as perverse.
  1. Mr Algazy, for the Trust, submits that no error of law is disclosed in the grounds of appeal. This case involved multiple claims of race discrimination, and allegations that over twenty people were effectively involved in a racist conspiracy against the Claimants, including the majority of the Trust's Finance Department. He emphasises the unusual circumstances which surrounded the grievance and disciplinary hearings in this case. Quite apart from the finding of bad faith, the Tribunal found that the irretrievable breakdown in working relationships, also relied upon by the Trust, was in itself sufficient to justify the dismissals, as being for some other substantial reason. He contends that no basis for interfering with this Tribunal's detailed and carefully reasoned judgment has been identified.
**Relevant background**
  1. Given the focus of this appeal it is unnecessary for us to refer in any detail to the Tribunal's findings on the other issues which arose for determination. We shall therefore briefly summarise the relevant background.
  1. Mr Bashir describes himself as a British born Asian. Mrs Bashir describes herself as a British Asian, who came to England at the age of 6. Mr Bashir had worked as an accountant within the NHS since 1988 and was qualified as an accounting technician. He began work with the Weston Park Hospital NHS Trust in the early 1990s which, after a series of mergers with other Trusts, led eventually to him being employed by the Respondent Trust. With effect from 1 April 2002 he was promoted to the post of Group Accountant, a post he held until his dismissal in April 2008. In June 2002 he was appointed as Group Accountant to the Central and Corporate Services (CCS) Group, providing services to the corporate rather than the clinical directorates within the Trust.
  1. Mrs Bashir is a certified chartered accountant. She too had worked for the NHS at various hospitals in London, and she commenced employment with the Trust's predecessor in September 2001. She was given a permanent contract with effect from June 2002. By August 2002 she was working within Head and Neck Services. Following the outcome of a grievance she raised against both her line manager and his line manager she was transferred in June 2003 to the CCS Group, so that her husband became her line manager. Initially 20 per cent of her working time was assigned to the Surgical Services Directorate (SSD) but, following a grievance that Mrs Bashir raised concerning difficulties in that Directorate, she worked thereafter solely for CCS. Save for a period of sick leave and suspension that remained the position until her dismissal in April 2008.
  1. In addition to the substantive complaints the Tribunal dealt with eight specific allegations of racially motivated treatment, which the Claimants relied on by way of background to their justiciable claims. These allegations concerned events which took place between 2001 and 2006, but they had a history which went back as far as 1998.
  1. The Tribunal made detailed findings on the evidence they heard. None of the background allegations of racial discrimination was considered on the evidence to be sustainable, or to provide any support for the substantive claims.
  1. In the course of dealing with these allegations the Tribunal made a number of criticisms of the Claimants' conduct. It was a striking feature of this case that the Claimants were found to have a "propensity for raising grievances" in respect of their various allegations, which then had to be investigated by the Trust. Further, Mr Bashir alleged, both in his grievances and in his evidence to the Tribunal, that a grievance panel had concluded in February 2001 that he had been discriminated against on grounds of race. In rejecting this allegation the Tribunal found that Mr Bashir had "sought to embellish, if not misrepresent his case" before them. In relation to the last of these eight allegations, concerning Mrs Bashir's grievance about her treatment at the time she left the SSD, the Tribunal found that "Mrs Bashir and her husband had made a mountain out of a molehill", which had significantly aggravated the situation.
  1. The first of the substantive claims, referred to as the "3 x 3" grievance, concerned a further grievance lodged by Mrs Bashir and others in December 2006, alleging racial harassment and bullying by members of the Finance Department. The investigation of this grievance was prolonged and beset by difficulties. In late October 2007 both those who had raised the grievance and those against whom the allegations were made expressed dissatisfaction with the time that it was taking and with the procedure adopted. The person undertaking the investigation then took voluntary redundancy and left the Trust's employment in June 2008. The matter was passed on to someone else and had still not been concluded as at the date of the Tribunal hearing. The Trust accepted that the grievance had not been handled satisfactorily by the person investigating it, but alleged that the complainants had also contributed to the problems.
  1. The Tribunal held that there was no jurisdiction to entertain this complaint because the provisions of Section 32 of the Employment Act 2002 had not been complied with. However, they went on to consider the complaint on its merits and concluded that Mrs Bashir had not raised a prima facie case of race discrimination. The person investigating the grievance was found to have been simply overwhelmed by the approach that Mrs Bashir and her colleagues adopted to the process; and, further, to have lacked the competence to deal with the matter. Neither situation could be said to involve any discrimination against her on racial grounds.
  1. These matters form the backdrop to the issues arising in this appeal, to which we now turn. So that they might be properly understood, it is necessary to refer to the relevant facts in some detail.
**Facts relevant to the appeal**
  1. In 2006 the Trust commenced a productivity and efficiency programme, with a view to saving costs. The Finance Director, Mr Priestley, launched a review of the whole Finance Department as part of this programme. Working groups were set up, one of which was chaired by Mr Bashir, to consider how savings could be made. Feedback from the groups was to be confidential.
  1. Suggestions from the groups were submitted to a co-ordinator, Karen Jackson, who extracted the relevant points and arranged the anonymised information on spreadsheets in two separate categories. "Structural and people" matters were to be considered by Mr Priestley and the three Assistant Directors of Finance, namely Mrs Jackson, Mr Wilson and, before reorganisation, Mr Horsfield. Other matters were to be considered by the "P and E Group" (PEG), a group comprising the senior accountants, the three Assistant Directors of Finance and the Payroll Services Manager (12 people in all). All those on the PEG Group were at grade 14 or above. Mr Bashir, because he was a grade 12 accountant, was not a member. This PEG Group was charged with recommending action on working practices and procedures and, in due course, with implementing the Department's productivity and efficiency plan.
  1. On about 11 December 2006 the Claimants and two other employees, Mr Kandare and Mr Khan, came into possession of a confidential document prepared by the working group chaired by Nigel Leek. This document contained the raw information which would then have been subject to the extraction process, arranged on spreadsheets and prepared for consideration by Mr Priestley's group or the PEG Group, along with all the other feedback from the groups.
  1. The Claimants' evidence was that Mr Khan had chanced to find this document lying on a photocopier on 11 December and had then given it to Mr Bashir. Mr Leek denied that this would have been possible. The document was kept in a file behind his desk in an office he shared with Mr Bashir. The way in which this document came into the Claimants' possession was a matter which subsequently became part of the disciplinary process involving the Claimants, Mr Khan and Mr Kandare.
  1. On the evidence the Tribunal found, on the balance of probability that:

"… the document was not casually found by Mr Khan on the photocopying machine, but rather … Mr Bashir took advantage of the fact that he shared an office with Mr Leek to peruse a file which he thought might be of interest to him and to the future of his group."

  1. On the same date (11 December) Mr Bashir raised a grievance with Mr Priestley regarding an evaluation of his job. The Tribunal found that the "Leek" document was the stimulus for this, although no reference to it was made in the grievance, because he referred in his grievance to accountants having made representations to Mr Priestley to break up his group and to share out the jobs within it amongst themselves, including Mr Bashir's job. This, the Tribunal found, was the result of a fundamental misunderstanding on his part, both as to the nature of the proposals made and his belief that the document had come from the PEG Group itself rather than being, as was the case, merely one of the suggestions being made by one of the working groups. Mr Bashir referred to there being an unsubstantiated personal attack upon him, following several earlier racially motivated acts by the PEG Group, which comprised grade 14 staff who were all white.
  1. On 14 December 2006 Mr Bashir raised a further grievance with Mr Priestley against nine senior accountants, alleging that this "PEG Group recommendation" showed them to have mounted further malicious and racially motivated personal attacks upon him, which had been going on for years, the aim of which was to get rid of him.
  1. On 20 December, and therefore eight days after the alleged racial discrimination in her "3 x 3" grievance had been raised with the Trust, Mrs Bashir, Mr Khan and Mr Kandare registered a further grievance with Mr Priestley. This too was against the nine senior accountants named in Mr Bashir's grievance. It was drafted in similar vein, accusing the PEG Group of a malicious personal attack upon them. Mrs Bashir and her colleagues sought to draw a connection between the motives they ascribed to those in the PEG Group and the three junior members of staff named in the "3 x 3" grievance. Reference was made to serious racial attacks having been brought to the attention of senior management in the past, which were ignored, allowing racially motivated people in CCS to be encouraged to continue. The grievance continued:

"It appears that the PEG Group have used this opportunity as a platform to formally collude, manipulate and advance their hidden agendas to victimise us on racial grounds."

  1. On receipt of these grievances Mr Priestley sought assistance from Human Resources and began to arrange for them to be investigated. Those against whom the allegations had been made were notified of the complaints in early January 2007.
  1. The facts found by the Tribunal as to the events which followed reveal a most unfortunate and protracted history of procedural disputes and delays. We refer to the main points.
  1. The Claimants' Unison representative, Mr Campbell, objected to Mr Priestley's appointment of Suzie Bailey, a general manager, as investigator, because she reported to Mr Priestley. He also contended that the approach adopted by Mr Priestley went outside the Trust's procedures, and that no investigation was necessary under the agreed procedure for the resolution of grievances.
  1. The Tribunal described the Trust's grievance and dispute procedure as follows:

"It sets out a 5 stage procedure, the intention being that the grievance process will start at the lowest level with provision for appeals upwards. The final stage is therefore Stage 5 which is a hearing before a panel selected from the Trust Board. However, the entry level to the grievance process also depends upon the seniority of the person or persons being grieved against. The grieved against's line manager would in most cases be the appropriate person to hear the grievance at first instance."

  1. Mr Campbell relied on note 6 which read:

"A statement of case from both the employee or their representative and the management representative will be required at both Stage 4 and 5 of the procedure. Copies of 'Statements of Case' will be requested by the Personnel Department, with a view to 'Statements of Case' being exchanged at least seven days before the date of the Grievance Hearing."

The Claimants and Mr Campbell interpreted that as meaning that all they were required to do was to exchange their Statement of Case seven days before the hearing and then turn up for that hearing.

  1. Mr Priestley maintained that the multiplicity and complexity of all the allegations being made meant that an investigation was necessary, and that Ms Bailey was the appropriate person to carry it out. This resulted in a further, formal grievance then being raised against Mr Priestley himself, which was submitted to the acting Chief Executive, Professor Welsh, on 5 February 2007. In this grievance allegations of discrimination and victimisation were made against Mr Priestley for failing to follow due process. Serious allegations, including allegations of bias and bullying behaviour were also made against Mr Priestley, who was said to have protected white staff and to have disclosed confidential matters to Ms Bailey.
  1. Since the grievances now included one against Mr Priestley, as Mr Bashir's line manager, it was registered at the request of Mr Campbell as a Stage 4 grievance. The Trust then appointed Neil Riley, the Trust Secretary, to carry out an investigation into the "composite PEG grievance", assisted by Sonya Lawford of HR.
  1. Mr Riley wished to begin by meeting the four complainants, so as to interview them and fully understand both the allegations being made and the reasons for them. Mr Campbell objected to this, wishing to proceed straight to a hearing after a mutual exchange of statements. Eventually, arrangements were made for Mr Riley to meet Mr Bashir on 6 March and the other complainants on 8 March 2007.
  1. At the meeting on 6 March, Mr Bashir challenged Mr Riley's objectivity and the need for any investigation. He also referred to making an Employment Tribunal claim. Mr Riley adjourned the meeting to speak to HR. A compromise was agreed between Mr Riley and Mr Ned of HR, whereby Mr Riley would carry out only a fact-finding exercise, and would then attend the grievance hearing as a witness, available to both sides. However, when the meeting resumed, Mr Bashir refused to proceed on this basis and stated that he would be lodging a claim with the Tribunal. He referred to being put under duress.
  1. No meeting with the other complainants took place on 8 March, but on that date both Claimants filed their first ET1s at the Tribunal.
  1. A meeting was rearranged with Mr Bashir for 19 March which, despite his objections and references to duress, Mr Bashir did attend and at which he did provide some written answers to questions Mr Riley had posed about his allegations. Meetings with Mrs Bashir and the other complainants were arranged, but postponed for various reasons.
  1. On 11 April Mrs Bashir raised a further grievance in relation to a re-grading application.
  1. On 20 April Mr Campbell wrote to the Trust Chairman, Mr Stone, asking for the composite PEG grievance to be registered at Stage 5 rather than Stage 4 of the procedure. Mr Stone agreed that the matters could be heard at Stage 5, if that was what the Claimants wished. However, he pointed out that this was the final stage of the Trust's grievance procedure, which meant that there could be no appeal.
  1. By this stage Mr Riley had gone on sick leave and Mr Burgin, Assistant Director of HR, was instructed by Mr Watts, the Director, to take over the fact-finding exercise. Mr Burgin felt that a further meeting with the complainants would assist and one was arranged for 14 May. Mr Bashir did not attend. The other three complainants did attend, but queried Mr Burgin's role and objected once again to the necessity for any investigation. Mrs Bashir had produced written answers to the questions posed earlier by Mr Riley, but she asked Mr Burgin to sign each page so as to ensure, she said, that nothing could be altered later on. Mr Burgin found that the written answers provided were vague and unhelpful, but the complainants refused to answer any further questions orally.
  1. Mr Burgin adjourned the meeting. He wrote requesting that the complainants supply a copy of the document which they said contained untrue and racially motivated criticisms of them, so as to assist his fact-finding exercise. That document was of course the "Leek" report, but Mr Burgin was not told this and it was not supplied to him until later on, when it was included amongst the eight volumes of documents delivered shortly before the grievance hearing fixed for June 2007.
  1. The meeting with Mr Burgin was reconvened on 16 May, this time with Mr Bashir and Mr Campbell also in attendance. The complainants raised further procedural complaints. They continued to maintain that this meeting was outwith the grievance procedure, and they accused Mr Burgin of acting as a defender of the Trust. Mr Bashir said that the fact-finding report to be prepared would mean that witnesses had been interfered with.
  1. Notwithstanding these objections Mr Burgin decided to proceed with his fact-finding exercise. He interviewed those against whom the allegations had been made and carried out research into Trust records. He was hoping to discover information about matters which had been referred to only obliquely in the complainants' written answers, and in respect of which they had provided no further details.
  1. One of Mr Bashir's allegations was that five of the eight members of the PEG Group had already been the subject of a successful grievance raised by him in 2001/2 concerning his re-grading. Since this was found not to be the case, unsurprisingly Mr Burgin could find no record of it. As he had not yet seen the "Leek" document Mr Burgin looked at the actual PEG documentation and those working parties' submissions that were available to him.
  1. Mr Burgin completed his fact-finding report in June 2007. It ran to some 83 pages. He forwarded it to Mr Ned in HR.
  1. On 7 June, the Claimants both presented their second ET1s to the Tribunal.
  1. On 13 June Mrs Bashir wrote to Professor Welsh to register at Stage 4 a further grievance that she had originally raised with Mr Priestley on 29 May 2007. This concerned an alleged denial of a career development opportunity for her, which she believed to be a further act of race discrimination.
  1. By now the complainants had been told that the Stage 5 hearing was likely to take place around 20 June. On 11 June they wrote to Mr Stone complaining that it would not be possible for them to prepare and exchange statements and documents seven days before that date due to pressure of work. They alleged that the Trust was "trying to close down" their case.
  1. The Claimants were nevertheless notified that the Stage 5 grievance hearing would be held on 26 June.
  1. On 13 June Mr Bashir complained to Mr Ned that 26 June was not an acceptable date. He referred to problems of witness availability, though without giving any particulars. Further, Mr Campbell, his representative, would be away at the Unison conference.
  1. Mr Stone informed him that the hearing date could not be postponed. The complaints were extremely serious and concerned a number of the Trust's most senior employees. Further the complainants had complained of stress because the matter was taking some time to resolve. The grievance therefore needed to be heard as soon as possible. The complainants were offered paid leave of absence and told that extra resources would be provided so that their work could be done in their absence. They were told that Mr Campbell should either not attend the union conference or he should appoint one of his colleagues to attend the grievance hearing in his place, such as Mr Demaine.
  1. The Claimants repeated their objections, saying that a number of their witnesses were not available and that Mr Demaine had not prepared a Statement of Case.
  1. Mr Stone offered to ensure that any of the complainants' witnesses who were employed by the Trust, or by other NHS bodies, would be told they had to attend the hearing, unless they were ill or had pre-booked holidays. Alternatively, written statements from people who could not attend could be read to the panel.
  1. The Claimants' position then changed. Mr Bashir sent a further email to Mr Ned on 25 June. He stated that he had prepared the complainants' case, and would be presenting it, together with their "support officer". Unfortunately, however, he had now injured his back and would therefore be unable to attend. Mrs Bashir had also become ill shortly before this, and Mr Kandare had injured himself by putting a pencil in his ear.
  1. Three non-executive directors had been empanelled to hear the grievance, namely John Donnelly, Mrs Ferres and Mr Suddes. Mr Donnelly, a retired high-ranking police officer from the South Yorkshire Police Force was in the Chair. He decided that in the circumstances the hearing had to be postponed. However, the panel used 26 June to read all the documents, including the eight lever arch files which had now been provided by the complainants.
  1. The complainants were then notified that the hearing would now take place on 9 July, with the 12 July set aside in addition if needed.
  1. On 6 July Mr Bashir wrote to Mr Watts. He now objected to those against whom allegations had been made being present for the duration of the grievance hearing, and said that they should just give their evidence and then depart. Mr Watts responded that it was normal practice for those against whom a grievance had been raised to be present during the hearing, so that they could understand the allegations being made. Mr Bashir stated that this was "totally unacceptable" and that the complainants would not agree to it. Those about whom complaints had been made should be treated as witnesses only. He stated that "if the hearing goes ahead in this way then we see this as a further act of direct discrimination", and that it marked a further attempt to "suppress racial issues within the Organisation".

(a) The grievance hearing

  1. The hearing began on 9 July. Mr Bashir stated that Mr Campbell had not turned up and that he had all their papers. Contrary to what he had said previously about being prepared and ready to present the case, save for illness, Mr Bashir now stated that Mr Campbell was to represent them and to present their case, rather than merely adopt a supportive role. He raised objection once again to the persons complained about being present throughout the hearing. It then transpired that Mr Campbell had rung in sick for work that day with a sore throat.
  1. The panel retired to consider what to do. They decided that the hearing should proceed in any event and that those against whom the allegations were made should be present throughout. In coming to that decision they had regard to the fact that serious allegations of racism had been made, and considered that natural justice required that they be present to hear the evidence against them. This was particularly important since, if the grievances were upheld, disciplinary action, including possible dismissal, could be the outcome. The panel also took into account the fact that, in the run up to the postponed June hearing, Mr Bashir had clearly stated that he personally had prepared the case and would be presenting it. The absence of the papers, said to be in Mr Campbell's possession, could be remedied by further copies being made.
  1. The panel reconvened, in the presence of the complainants alone, and Mr Donnelly notified them of their intention to proceed. Mr Bashir said that he would not be presenting the case and that he now needed to contact Mr Campbell. An adjournment of 20 minutes was granted for this purpose, but 40 minutes later the panel were told that Mr Bashir was still speaking to the Union. The panel decided to begin the hearing in any event.
  1. The hearing resumed, with all those about whom complaints had been made being present, but with the complainants themselves all being absent. During the preliminaries Mr Bashir and the others returned. Mr Bashir said that the complainants had been advised by their union not to proceed without representation. They would not therefore be continuing with their case that day. Mr Bashir said that, whilst they intended to justify their allegations, they could not do so without representation and proper support. Mr Donnelly made it clear to them that the hearing was going to proceed in any event and at that stage the complainants left. The hearing therefore continued in their absence.
  1. Mr Burgin was asked to present his report. The panel considered each of the allegations in turn. Concern was expressed about the presence of copy extracts from Mr Riley's diary in the complainants' bundles of documents, given that this was a confidential document.
  1. It was also noted that the complainants' documents included a different version of a letter that Mr Bashir had previously sent to Ms Ferres in 2002, after she had chaired his earlier re-grading grievance hearing, and in which he had expressed his satisfaction with the outcome. Ms Wellburn, the Unison representative appearing for those complained about, raised concerns as to Nigel Leek's report and how it had been obtained.
  1. Towards the end of this part of the meeting those present were invited to speak. Each of them explained in clear terms that they had been adversely affected by the grievances brought against them and by the whole process. Mr Priestley expressed the view that he felt deeply resentful on behalf of the other members of his team. He considered that the complainants had simply misunderstood what was being done within the PEG process, but had then continued with the grievance and had tried to back it up. The complainants had presented a subjective view of the issues and had grossly distorted and manipulated them. He went on to say that he doubted whether the working relationships between the complainants and those against whom the allegations had been made remained sustainable. The grievance panel then went on to consider, in the absence of everyone other than Mr Priestley and Mrs Jackson, Mr Bashir's separate grievance in relation to his re-grading.
  1. At the conclusion of the hearing on 9 July Mr Ned wrote to the complainants expressing the panel's concern that they had chosen not to participate in the hearing and inviting them to attend on 12 July, which had been set aside as a further hearing day.
  1. On 10 July the complainants responded, stating that they were appalled by the behaviour towards them at the hearing and by the panel's refusal to give them the opportunity to put their case. Attending on 12 July, when the case was already part-heard, was not acceptable to them. Mr Bashir stated that he was never going to present the case himself, but only provide support to the Union representative.
  1. The hearing therefore resumed on 12 July, but without the complainants. Mr Ned was instructed to invite them to provide any other written evidence that they wished to rely upon. He also asked for their comments on the matters which had come to light, namely their possession of extracts from Mr Riley's diary, Mr Leek's document, and the different version of Mr Bashir's original letter to Ms Ferres contained in the bundle of documents. There was no response from the complainants to Mr Ned's requests.
  1. The panel's decision not to uphold the grievance was set out in a lengthy and detailed letter to the complainants dated 17 July. Each of the allegations in the five grievances was addressed, together with other allegations set out in the complainants' Statement of Case and the responses of the accused. The panel gave their reasons for rejecting, as they did, all the allegations which had been made. No evidence supporting the allegations had been found in any of the eight files of documents, and there was nothing to indicate that the actions of any individual had been racially motivated. Whilst Mr and Mrs Bashir had clearly been dissatisfied with various aspects of their employment, there was no evidence at all to indicate a pattern of racist behaviour. Mr Priestley had been entitled to ask for an investigation to be conducted into the grievances raised, given the nature and scope of the allegations made.
  1. The panel expressed concern that there had been a delay of seven months in concluding the matter, but considered that responsibility for that lay on both sides. Whilst Mr Riley's illness had been a factor, the complainants had themselves postponed meetings and raised objections, including objections about the need for any investigation at all, when it would not have been possible to conduct a meaningful grievance hearing without one.
  1. Accordingly the grievances were not upheld. Further, since this had been a Stage 5 hearing at the complainants' request, there was no internal appeal open to them.
  1. The panel's letter then concluded as follows:

"Finally, the panel has also considered whether or not these grievances have been made in good faith. After reviewing the evidence submitted to us and the conduct of this matter, we have reluctantly come to the conclusion that the grievances were not made in good faith. Clearly this is a very serious matter and we recommend that the Director of Human Resources consider what steps are now appropriate."

  1. The panel dealt separately with Mr Bashir's job evaluation grievance and decided, for the reasons they gave, that he had not been singled out in terms of delay. Nor did the delay impede his career development, because he did not have the necessary professional qualifications to progress to a grade 14, in any event. There had been no racial discrimination in respect of the conduct of his job evaluation.

(b) The disciplinary process

  1. On 18 July, following a meeting with Mr Bashir and Mr Campbell, Mr Cash, the Trust's Chief Executive, wrote to Mr Bashir confirming his suspension from duty on full pay, to enable an investigation to be undertaken into various matters. These included the finding that he had raised grievances against colleagues in the Finance Department in bad faith; and the concern that confidential documents had been obtained without permission. Mr Burgin was instructed to investigate these disciplinary matters.
  1. On the same day, ten of those against whom the allegations had been made, wrote to Mr Priestley. They were pleased that the grievances had not been upheld and that it had been concluded that the grievances were not made in good faith. However, that decision could not eradicate "the stress and hurt we have suffered by being unfairly accused of race discrimination, and of having to defend ourselves at the hearing against these allegations." They also expressed concern that Mr Bashir had represented to the panel that some of them had been found guilty of race discrimination at the time of his 2001/02 grievance. The letter continued, "given all that has happened, we believe that the working relationship with these individuals is irreparably broken. We do not believe that there is anything that the Trust could do that will rebuild trust between these four people and ourselves." The letter concluded by making a formal complaint in respect of the use made of Mr Leek's document. They now understood that it was that document which had prompted the grievance being raised against them, but it was a document that was meant to be private and confidential, and they did not know how the complainants had obtained a copy of it.
  1. During the Tribunal hearing it emerged that the Trust's solicitors had prepared the original draft of this letter. The Claimants' counsel (not then Mr Bourne) suggested that this showed that the Trust had encouraged individuals to pursue complaints or grievances against the Claimants. The Tribunal rejected this suggestion. Those complained about were senior employees and unlikely to be malleable in the way suggested. In any event they already held "robust views" as regards their treatment, as shown by their comments at the end of the grievance hearing.
  1. The Tribunal found as a fact that the only reason that solicitors became involved in preparing the draft was because these employees remained anxious that any further steps they took would be misinterpreted by the complainants and result in further grievances being raised against them. The Tribunal found that there was nothing sinister about this aspect of the matter.
  1. On 19 July Mr Wilson, the Deputy Director of Finance, wrote to Mr Priestley stating that it would be untenable for him to take on line management responsibility for the Claimants in place of Mr Priestley. He held this view because of what he regarded as a serious lack of trust, and because of the real difficulty the Claimants had in accepting line management, as demonstrated by their history of raising grievances against their immediate managers. We note that Mr Wilson was someone against whom no grievance had been raised by the Claimants.
  1. On 23 July Mr Cash wrote to Mrs Bashir notifying her of the disciplinary investigation that was now underway. Because of her term-time contract she was now not at work and was not due to return until 4 September. She was not formally suspended from work until that day.
  1. Mr Priestley wrote to Mr Cash on 24 July, referring to the strength of feeling amongst those who had been accused of racially motivated acts. He said that it could not be understated. They were all absolutely clear that there was nothing the Trust could do to rebuild trust and working relationships with the Claimants.
  1. Mr Burgin chased up the request for the Claimants' comments on their possession of confidential documents. Mr Bashir replied that he could not respond until he had had a meeting with Anne Brown of Unison, who was now representing him.
  1. On 1 August 2007 Professor Welsh wrote to the four complainants asking them whether they felt that working relationships had broken down and, if so, whether they felt that they could be rebuilt.
  1. In their reply of 3 September the complainants stated that they did not think that relationships had broken down. Nevertheless they suggested that the other members of the Finance Department needed to reflect on their behaviour, which would provide the basis for the building of trust. Further, the grievance panel was said to have reached an unreasonable conclusion. The Tribunal found that the thrust of this letter was that the complainants were maintaining on the one hand that the relationship had not broken down, but on the other that they had been right and justified in bringing complaints of racial discrimination against their colleagues. They regarded that as a contradiction.
  1. Meanwhile on 9 August the complainants had written to Mr Stone purporting to register an appeal against the decision of the grievance panel and referring to their rights to an appeal under the Employment Act 2002. On the same date Anne Brown wrote a lengthy letter to Mr Watts on the complainants' behalf criticising the Trust's approach in dealing with their grievances. Notwithstanding the robust terms in which this letter was written, Unison ceased to represent the complainants three weeks later. It appears that the Claimants subsequently made a complaint against the union.
  1. Mr Stone replied reminding the Claimants that, at the time the Stage 5 hearing had been requested, it had been pointed out to them that there could be no appeal. That remained the Trust's position.
  1. On 10 August Mr Burgin met Mr Bashir, still represented by Mr Campbell at this stage, for the purposes of the disciplinary investigation. At this meeting Mr Bashir provided explanations in relation to the confidential documents. He said that Mr Khan had told him that he and possibly Mrs Bashir had been allowed access to Mr Riley's electronic diary. Mr Khan had also provided him with a copy of Mr Leek's document. Mr Bashir's explanation for the "edited" version of his letter to Mrs Ferres appearing in the grievance documentation was that he had simply printed off the wrong document.
  1. Similar meetings were conducted by Mr Burgin with Mr Kandare and Mr Khan.
  1. A further meeting took place on 4 September, in which Mr Bashir reiterated the views expressed in the letter to Professor Welsh of 3 September concerning working relationships in the department. Mrs Bashir was not present at this meeting because she was ill.
  1. By letter of 11 September from Mr Burgin, Mr Bashir was asked to attend a disciplinary hearing on 27 September 2007.
  1. There were two disciplinary allegations as follows:

1. "In bad faith you raised and proceeded with grievances against colleagues in the finance department. You should note that this allegation has already been found proved by the Trust Board Panel who sat on 9 July 2007 and heard that grievance. At the disciplinary hearing you will of course be asked for your comments on this finding so that the Disciplinary Panel may consider the matter (in this context bad faith means that the grievances were raised and continued to be raised even though those raising them knew the relevant allegations were untrue)."

2. The second charge related to the fact that confidential documents had been obtained, namely Mr Riley's diary and the Leek document.

The panel would consider in addition whether Mr Bashir had presented an altered version of his letter of 24 April 2002 to Mrs Ferres. Mr Bashir was also told that the panel would consider a particular answer he had given in response to Mr Riley and Mr Burgin's written questions. He had alleged that Mrs Hilditch, a former Assistant Director of HR, had forewarned him that he had been set up to fail, and that Mr Priestley would not easily forgive the embarrassment of what he saw as a defeat at the Trust Board grievance hearing in 2002. The panel would consider whether this was a true and accurate record of what Mrs Hilditch may have said to him.

  1. Enclosed with Mr Burgin's letter was the management case in respect of the disciplinary allegations.
  1. A letter in similar terms was written to Mrs Bashir although here the allegation in relation to what Mrs Hilditch had been reported as saying was different. Mrs Bashir's allegation was that Mrs Hilditch had said that Mr Horsfield was known to be a racist.
  1. On 18 September Mr Cash wrote to Mr Bashir explaining that, given the current feelings of the senior accountants, he had concluded that mediation or team building would be pointless. He had also concluded that changing reporting lines would not be possible, having regard to Mr Wilson's comments. Nor would it be practicable to move the Claimants' place of work, because they would still be required to work alongside those against whom they had raised a grievance. Mr Cash continued:

"I have to and continue to give thought as to how this difficult situation may be resolved. Key considerations are the Trust's need to have efficient and effective financial services delivered to it, the feelings of the various members of the finance department and your views. Reluctantly I am considering the termination of your employment. I would like you to come to a meeting to discuss this. At that meeting I will, of course, consider any other ways of resolving matters that you put forward."

Mr Cash wrote in identical terms to Mrs Bashir.

  1. The Claimants instructed solicitors, Ford and Warren, who wrote to the Trust's solicitors seeking to represent the Claimants at the disciplinary hearing. This request was refused because the Trust's disciplinary procedure restricted representation to a trade union representative or a colleague.
  1. On 21 September Mr Bashir was signed off work by his GP and diagnosed as suffering from "work-related stress".
  1. On 25 September Ford and Warren wrote again alleging that the outcome of the hearing was predetermined and that a decision had already been taken to dismiss the Claimants on "the pretext of a breakdown in working relationships". Moreover, the allegations of gross misconduct were based on conclusions reached at a grievance hearing at which the Claimants had not been heard. The outcome of these allegations was also predetermined. The letter concluded with a request that the hearing scheduled for the following day be postponed.
  1. At about the same time Mrs Bashir and the two other complainants also became sick. Due to the illness of at least three of the four individuals the Trust therefore postponed the hearing. The Claimants were then referred to the Trust's Occupational Health Department.
  1. The OH doctor suggested that a psychiatric opinion be sought and Dr MacNeill, consultant psychiatrist, met the Claimants on a number of occasions in November and December.
  1. Notwithstanding these meetings with the psychiatrist, the Tribunal found on the evidence that the Claimants were in any event well enough to instruct Ford and Warren to prepare a fully particularised third Employment Tribunal claim, which was lodged with the Tribunal on 11 December 2007.
  1. On 29 February 2008, Dr MacNeill wrote to OH, stating that he was unable to say with certainty that the Claimants would be fit to attend a disciplinary hearing, even if they were represented by a solicitor or barrister.
  1. Accordingly on 4 March 2008 Mr Burgin wrote to the Claimants informing them that a hearing to deal with both the disciplinary and working relationships matters would be held on 19 and 20 March 2008. He observed that there was still no indication as to when the Claimants would be fit to attend a disciplinary hearing; and that there had already been a delay of almost six months. Assuming that the Claimants would not then be attending, he invited them to consider the management case and to provide written submissions or to arrange representation at the hearing. He indicated that the Trust was contemplating terminating both their contracts of employment.
  1. On 13 March Dr MacNeill reported that the Claimants both had symptoms of a depressive disorder and were not fit to undergo disciplinary proceedings or Employment Tribunal proceedings. He could not state when either of them would be fit enough to participate.
  1. Shortly before the disciplinary hearing the Trust received a further letter from Ford and Warren criticising the decision to hold the hearing when the Claimants were unwell and seeking a postponement for two months, with a referral back to Dr MacNeill at that time. The Trust responded that the decision to proceed had been arrived at after careful consideration. The Trust were particularly concerned that six months had elapsed since the last proposed date for the hearing and that now a further two months delay was being proposed. This difficult situation could not continue to be left unresolved. If the Claimants were fit enough to instruct solicitors and deal with the detail of their Employment Tribunal claims, then they should be able to put their case, at least on paper, for the disciplinary process. Further, since the grievance panel had made the finding of bad faith, that could not be reopened by the disciplinary panel.
  1. The disciplinary hearing therefore took place on 19 March in the absence of the Claimants. The panel consisted of Mr Cash and Mr Watts. The management case comprised a pack of the relevant statements and documents prepared by Mr Burgin. There were no written submissions from the Claimants and no-one attended to represent them.
  1. No decision was taken on 19 March as the panel wished to carry out some further research into the Trust's procedures for computer use. They also wanted to give the Claimants a further opportunity to make at least written submissions to them. The hearing was therefore adjourned to 24 April. Notwithstanding Mr Cash's invitation to the Claimants to provide written submissions, none was received.
  1. On 23 April newly instructed solicitors for the Claimants, Davis Arnold Cooper, wrote to the Trust saying that the Claimants would not be fit enough to attend the resumed hearing, but that they were keen for progress to be made as the delay was affecting their health. The Claimants were of the view that the disciplinary panel had already made up its mind. It was suggested that the only reasonable decision open to the panel would be to allow them back to work and to enable mediation to take place.
  1. At the resumed hearing on 24 April Mr Cash and Mr Watts considered the medical evidence and the solicitors' recent letter. They were mindful that some eight months had elapsed since the Claimants last attended work, and that the feelings of their colleagues in the Finance Department had not abated. The decision taken at this hearing was that the Claimants should be dismissed.
  1. In the dismissal letter sent to Mr Bashir, dated 29 April 2008, he was told that the panel's decision was that there had been an irretrievable breakdown in the working relationships between Mr Bashir and colleagues in the Finance Department, and that that breach was irreparable. The letter continued "in all the circumstances we decided that there is no alternative but to terminate your employment due to irretrievable breakdown in working relationships."
  1. In relation to the disciplinary charges Mr Bashir was told that the charge in relation to the finding of bad faith was upheld, as was the charge of obtaining Mr Leek's confidential document. However, the charge of improperly accessing Mr Riley's diary was not upheld.
  1. The Tribunal noted that the finding of bad faith had already been made by the grievance panel on 9 July 2007. Mr Cash's evidence was that that issue could not be reopened. The disciplinary panel's role was therefore limited to considering the appropriate sanction, although they examined the underlying facts and documentation which had led to the finding. Clearly, the only material the panel had available to them was the pack prepared by Mr Burgin, since the Claimants had provided nothing in writing for the panel.
  1. The dismissal letter went on to explain that the panel had placed particular reliance on the decision of the grievance panel, because that panel comprised non-executive directors who had had no previous involvement in the matter; and one of them had a particular interest in and experience of discrimination and diversity issues, namely Mrs Ferres. The disciplinary panel had concluded that the appropriate sanction for the grievance panel's finding of bad faith would be summary dismissal.
  1. In relation to the Leek document the panel noted that it was this document which had prompted the PEG grievance. They were concerned that, throughout the grievance process, Mr Bashir had sought to maintain that this was a document produced by the PEG Group itself, despite a credible, alternative explanation having been provided by the Trust. The panel found that this document was confidential and kept in a marked file. They accepted Mr Leek's evidence that the document would not have needed to be photocopied on or about 11 December 2006 and that the document had been removed from his files without permission and copied without his knowledge. Mr Bashir had shared an office with Mr Leek and Mr Leek had not kept the document in a locked cabinet. The panel concluded on balance that Mr Bashir had taken a copy of the document from Mr Leek's files. That was a matter of serious, as opposed to gross misconduct.
  1. The panel had considered the edited version of the letter sent to Mrs Ferres and found on balance that Mr Bashir had deliberately altered that document and had presented it to the grievance panel knowing it to have been altered. The panel found this to be serious, as opposed to gross misconduct. The panel also found that the comment which Mr Bashir had ascribed to Mrs Hilditch was untrue and that that too was a matter of serious misconduct. In relation to Mr Riley's diary, whilst it was not clear how the diary printout had been obtained, the panel were satisfied that Mr Bashir had not himself obtained it. Accordingly that charge was not upheld.
  1. In conclusion the letter explained that alternatives to dismissal had been considered by the panel, but that Mr Wilson did not feel that the problems would be resolved if Mr Bashir were to report directly to him. In any event, interaction and communication with the rest of the Finance Department would be unavoidable. Even if Mr Bashir's place of work were to be moved there would still be that need for interaction and communication.
  1. The letter of dismissal to Mrs Bashir, also dated 29 April, was expressed in similar terms. The same conclusion was reached in relation to the grievance panel's finding of bad faith. In relation to what Mrs Hilditch was alleged to have said, the panel noted that Mrs Hilditch's evidence was that she had said Mr Horsfield may not have managed his worries regarding Mrs Bashir's grievance as well as he could, but that she did not say that it was suspected that he might be racist. The panel's decision was therefore that this evidence had been given to the grievance panel by Mrs Bashir, knowing it to be untrue. That was a matter of serious misconduct.
  1. Mrs Bashir was also exonerated from the charge of wrongfully obtaining a copy of Mr Riley's diary. In relation to the Leek document the panel found that she had continued to maintain that this was a document from the PEG Group itself, in the face of credible evidence to the contrary. She was, however, exonerated from involvement in the taking and copying of the document and that charge was not upheld.
  1. The Claimants then appealed, unsuccessfully, against the decision to dismiss them. On 22 July 2008 they both presented their fourth set of ET1s to the Tribunal complaining of unfair and wrongful dismissal and alleging that their dismissals were unlawful acts of discrimination.
**The Tribunal's decision**
  1. The Tribunal referred at length to both parties' written and oral submissions. They were provided with bundles of the relevant legislation and authorities and they set out, correctly, the legal principles to be applied in determining the claims. No criticism is made of any of their legal directions in this appeal.
  1. In arriving at their conclusions the Tribunal first revisited the background allegations in order to decide whether, after hearing all the evidence in the case, there was any material from which they could draw inferences when considering the substantive complaints. Apart from some criticisms as to the way in which the Trust had handled a couple of matters, the Tribunal found that there was nothing in any of them which could support the justiciable claims.
  1. It is unnecessary for us to refer in detail to the Tribunal's conclusions on those race discrimination complaints which predated the events leading to their dismissal. In respect of a number of them the Trust raised time limit points. However, having regard to the nature of the Claimants' case, which the Tribunal summarised as amounting effectively to a conspiracy against them by many people over a lengthy period of time, it was accepted that there was jurisdiction to determine them. The claims were all considered on their merits.
  1. All of these claims were rejected and, in rejecting them, the Tribunal made criticisms of the Claimants' conduct in a number of respects.
  1. In relation to the "3 x 3" grievance, for example, the Tribunal referred to unchallenged evidence from Mrs Howden that Mr Bashir used to say that, if things did not go his way, he would have the race discrimination card "up his sleeve", and that he would use it against this Trust as he had done at the Royal Free. The Tribunal found that this "evinced an intention by Mr Bashir to pursue a spurious race discrimination complaint if he saw the need to".
  1. In relation to the PEG grievance the Claimants had alleged, first, that they had been "targeted" in the Leek report and that personal attacks had been made upon them which, given "the previous history", were racially motivated attacks. The Tribunal found this to be a further example of the Claimants referring to a "previous history" that did not reflect reality. Secondly, the Claimants had subsequently alleged that Mr Priestley was himself involved in victimising and discriminating against them and, further, that their treatment up to and including the determination of the PEG grievance on 9 July was clear evidence of direct race discrimination. That had led Mr Bashir to allege, during cross-examination before the Tribunal, that Mr Donnelly and the other two members of the grievance panel had "taken racist action" against them.
  1. The Tribunal rejected the Claimants' "fanciful suggestion" that the productivity and efficiency exercise established by the Trust was simply a vehicle for practising race discrimination against both them and others from a BME background in the CCS team. There was clear evidence that this was a genuine exercise and not a sham.
  1. Further, the Claimants' allegation that they had been subjected to a racial attack by the PEG Group was based entirely upon a misunderstanding. The individual members of the PEG Group would have been completely unaware of the contents of any individual working group's submissions. The submissions were for the eyes of the Director and Assistant Directors of Finance only and then only in the form of spreadsheets. In reality, therefore, it was only Mrs Jackson who would have seen the raw information which the working groups had produced. The Tribunal found that:

"Despite that misapprehension which would have come to the knowledge of the Claimants once they received the Respondents' response in these proceedings and which should have become clearer and clearer to them as they received the [Respondents'] witness statements and then the further information which has been given during this hearing, they have nevertheless maintained their original case. It is therefore a case based upon that misapprehension, and regrettably it is also based upon a document which, not to put it too finely, they came into the possession of in an underhand way."

  1. The Tribunal found that there was no less favourable treatment of the Claimants in the Leek working group's report, as sent to Mrs Jackson. The report contained only suggestions. There was no likelihood in any event of the Claimants being made redundant. Even if the structure of the department had changed, the evidence showed that existing, individual skills would need to be retained by the Trust. Hypothetical comparators would not have been treated any differently and no prima facie case of discrimination had been shown.
  1. Criticisms were also made of the uncooperative approach adopted by the Claimants in relation to the PEG grievance procedure, which the Tribunal found was similar to that which they had adopted in the "3 x 3" procedure. Any delays were found to be primarily because the Claimants had approached the process "in a distrustful way and as if it was an adversarial process".
  1. The Claimants were found to have adopted an unreasonable position on the need to investigate their grievance. On the one hand they had objected to any investigation at all being undertaken, but, on the other hand, had insisted on keeping their cards close their chests. Unusually, the Claimants were reluctant to explain exactly what their grievances were. In retrospect the Tribunal considered that this might be because their grievance, and the allegations of race discrimination within it, was raised "on a somewhat speculative basis".
  1. In the circumstances it was to the Trust's credit that they agreed to conduct a fact-finding exercise as a compromise, effectively giving preferential treatment to the Claimants. The Claimants' reference to duress, to justify their failure to explain exactly what their grievances were, was found to be unsatisfactory and unhelpful.
  1. The Tribunal then set out their conclusions in relation to the determination and outcome of the PEG grievance, and its overlap with the subsequent disciplinary process. In view of their importance in this appeal we shall set them out in full, both in relation to race discrimination and unfair dismissal because they overlap.

"The determination of the PEG Grievance

At first blush, to determine and dispose of grievances raising such serious issues as applied here in the absence of the grievers would seem to be an odd and probably wrong course to follow. Moreover the outcome of the grievance was not simply that it failed but that it had been brought in bad faith and this in turn, had at least in part, led to the claimants' dismissal. However, we are not determining this case on first blush. We find that the claimants' unreasonable behaviour in relation to their own grievances continued as regards the grievance hearing itself. Whilst complaining of delay and whilst being adamant that the appropriate time to disclose the full detail of their grievances would – as per the letter of the grievance procedure – be 7 days before the hearing, when it came to it, inexplicably, the claimants were unprepared. Although the grievance hearing which would have taken place on 26 June 2007 was ultimately postponed on the basis of the apparent ill health of at least three of the four grievers, that was pre-figured by a request from the claimants and their two colleagues to postpone the grievance hearing date because they were not prepared and then subsequently because of the problems with their union representative and the availability of their witnesses. Regrettably we are drawn to the conclusion that it was not a coincidence that when the respondent declined to postpone (albeit having suggested alternative arrangements that could be made) the majority of the claimants then appeared to fall ill necessitating a postponement in any event.

A not dissimilar situation arose in relation to 9 July grievance hearing. We find that the claimants' proposal that the grieved against should not be present during the grievance hearing was unreasonable and contrary to the interests of natural justice. It is equally inexplicable how the claimants could then find themselves unprepared for adjourned 9 July hearing as well. Although ostensibly their representative Mr Campbell could not attend on 9 July because he had a sore throat, it would seem that the underlying reason was that even at this late stage and despite the promise that all would be revealed 7 days before the grievance hearing, the claimants and their union had still not been able to put together a sufficient statement of case which could be supported by reference to their documents. The oft referred to 8 lever arch files which the claimants did provide shortly before the adjourned June hearing did not actually set out a case. The claimants' approach seems to have been that it was for the respondent to trawl through a huge amount of documents to see what they might find to support of the claimants' contentions rather than the claimants themselves identifying that material and particularising and cross referencing it to the broad allegations which they had made hitherto. So it was that on the morning of 9 July 2007 the claimants and their two colleagues appeared unrepresented and again asking for an adjournment.

In the context of their race discrimination complaint we therefore need to consider whether the panel's decision to proceed in any event with the grievance hearing which resulted in that grievance hearing proceeding in the claimants' absence was less favourable treatment. Again other than the suggestion that the PEG grieved against are an appropriate comparator we have to construct our own comparator. We cannot accept that a relatively senior white employee of the Trust who had raised a serious grievance against a large number of senior accountants some seven months previously and then stated that they were unprepared to proceed to have their grievances heard would have been treated any differently to the treatment afforded to these claimants. Clearly Mr Donnelly's panel had a very difficult decision to make. The interests of justice would normally require both parties to the grievance to be present, albeit it has to be borne in mind this was a grievance not a disciplinary matter. However, this was the second occasion when the claimants sought a last minute postponement. We accept that the grievance panel was entitled to take into account not only the interests of the claimants and their two colleagues, but also the interests and indeed welfare of the grieved against who had had these grievances levelled against them with a fair measure of uncertainty as to what was actually involved for some considerable time and had undergone the anticlimax of the June hearing. The grievance panel was also, in our judgment, entitled to take into account the need for a properly functioning Finance Department which was becoming increasingly difficult to achieve in the circumstances. We remind ourselves that in terms of race discrimination the test is significantly higher than "reasonableness". Accordingly an employer can behave unreasonably but yet not in a discriminatory way. However, here we find that the respondent behaved neither in a discriminatory nor an unreasonable fashion.

**The grievance outcome itself**

The grievances were not upheld. Whilst in one sense that may be considered to be less favourable treatment of the claimants – that is to say it would have been more favourable if their grievances had been upheld – we must consider whether a comparator would have been treated any differently. The hypothetical comparator would be the same comparator that we have used in relation to the earlier stage of the grievance process when considering the decision to go ahead in the claimants' absence. We find that Mr Donnelly's panel considered and investigated as best they could the claimants' grievance in the circumstances. It is clear that Mrs Ferres in particular did not shy away from asking questions about, for instance, allegations of institutional racism. Accordingly we find no less favourable treatment. Even if we had found less favourable treatment, we would not have found that the claimants had proved facts from which we could conclude that there had been discrimination by the grievance panel. No background facts, no "something else" as Mr Algazy put it had been suggested by the claimants in relation to Mr Donnelly, Mr Suddes or Mrs Ferres who constituted the grievance panel. The claimants, without justification in our judgment, have simply been content to label them as racist. This of course rather contradicts the claimants' own case, which is that the panel of the Trust Board which Mrs Ferres herself had chaired in 2002 had upheld a race grievance against Mr Priestley. We find that this damages and reduces the internal logic of the claimants' case.

**The overlap between the grievance outcome and the subsequent disciplinary process**

The significant connection is the finding of bad faith by the grievance panel. Were the grievance panel entitled to do more than determine whether or not the grievance succeeded? This was a matter which concerned the tribunal and in respect of which it made particular enquiry of Mr Donnelly. On balance the tribunal are now satisfied that although it would not be usual for a grievance panel to go on to consider such matters and make such findings, this was not a usual grievance. For the same reasons that we reject the suggestion that the grievance panel discriminated against the claimants in relation to the outcome of the grievance, so too we reject the suggestion that they did so in relation to the finding of bad faith. Again we need to assess whether that is the type of finding which should have been made in the absence of the claimants. We conclude that the claimants' failure to take part in the grievance hearing can properly be construed as an aspect of the bad faith overall found by the panel. In fact we are driven to the conclusion that the claimants sought to engineer a situation whereby the weakness of their grievance might be overlooked because of the position they sought to manipulate the respondent into - proceeding in their absence. At the same time this gave the claimants further ammunition - the plea of breach of natural justice. We find that the grievance panel had abundant evidence before it so as to register the feelings of those grieved against. Against a counsel of perfection the tribunal consider that it might have been better for that exercise to have been conducted separately once the panel had reached a decision on the outcome of the grievance. The relevant part of the transcript suggests that it had become fairly clear at that stage to the grieved against that the grievances against them were not going to be upheld. However, we think that that is a relatively minor point and not one that goes either to the question of the discrimination claim or the overall fairness when we turn to consider that in the context of the dismissal."

  1. In relation to the denial of an appeal from the grievance panel's decision, the Tribunal recognised that the lack of an appeal in such circumstances was in conflict with the statutory grievance procedure in Schedule 2 to the Employment Act 2002. However, they concluded that there was no less favourable treatment of the Claimants in this respect, and therefore no racial discrimination.
  1. The Tribunal's conclusions in relation to the disciplinary process, as regards racial discrimination, victimisation and unfair dismissal were as follows:

"11.2.9 The disciplinary process

Having regard to the grievance panel's finding of bad faith, and in particular because the grievance panel did have a degree of independence from the respondent, it is hardly surprising that the respondent considered that there was a need to launch a disciplinary investigation and to take stock of what it should do with regard to the bad faith finding. Insofar as the claimants have sought to suggest that they were suspended and disciplinary action taken against them as some sort of retaliation for their grievance we categorically reject that suggestion. We cannot accept that any different treatment would have been afforded to the comparator (again hypothetical as previously identified) than was afforded to the claimants. There was not only the finding of bad faith but both the forthright and, on our finding, unsolicited statement, from those grieved against (the18 July 2007 letter) and the unsolicited letter from Mr Wilson with regard to the irretrievable breakdown in the working relationship. There were in addition the issues which had arisen during the course of the grievance hearing and indeed which had been brought to the grievance panel's attention by the union representatives of the grieved against. Those issues were the acquisition of Mr Leek's confidential document, the access to Mr Riley's confidential electronic diary, the two different versions of Mr Bashir's letter to Mrs Ferres in 2002 and the apparent misrepresentation of what Mrs Hilditch had or had not said about Mr Priestley and Mr Horsfield. We cannot accept that any employee against whom such a range of matters stood would not have been subjected to the same process as were the claimants. That was not on the grounds of their colour, ethnic origin or protected act but on the ground of what they had been found to have done or were at that stage otherwise suspected of having done.

**Had the respondent already made a decision to dismiss?**

******This question is perhaps more relevant to the unfair dismissal aspect of this case but it is one of the issues posed as a race discrimination point in the list of issues. Undeniably Mr Cash had written to the claimants on 18 September 2007 indicating that termination of their employment was being considered. That of course was prior to what would have been the disciplinary hearing initially arranged for 27 September 2007. We find that there are good reasons why Mr Cash should write in those terms at that time. There had then been the finding of bad faith and, whatever the claimants might subsequently say about it in the disciplinary process, it seemed that nothing was likely to alter the view of the grieved against and others that a working relationship with the claimants was no longer possible. At this point perhaps it is appropriate to comment that the elliptical position adopted by the claimants at their meeting with Mr Cash on 4 September 2007 had been that they could see no reason why they could not work with their colleagues in the future, whilst going on to state the desire to appeal against the grievance outcome on the basis that there had been discrimination against them. The claimants seemed to have taken the position that discrimination had been practiced against them but this was not a personal issue and so would not be an obstacle to a working relationship with the grieved against being rebuilt. The logic of this approach is extremely hard to grasp. In the face of the consistent position of the grieved against that they could no longer work with the claimants, we cannot accept that the respondent's rejection of the idea of mediation can be construed as an act of race discrimination. It was simply an acceptance of the reality of the workplace situation.**

**Proceeding with disciplinary hearing in the absence of the claimants**

We note that the run up to what would have been the disciplinary hearing on 27 September 2007 had similarities with the run up to each of the grievance hearings in that the claimants were not in sufficient health to attend the 27 September hearing. The respondents were again prepared to accept that state of affairs but at the same time considered that it would be prudent to obtain medical evidence so as to obtain a prognosis on the 'fitness to plead' of the claimants. Although this has never been part of the claimants' pleaded case, in their submissions they seek to suggest that requiring them to attend Dr MacNeill was in itself a continuation of the alleged race discrimination/intimidation. Even if this is to be regarded as part of the claimants' case (it seems to be a recently thought of addition) we reject it. The respondent was in our judgment simply making a prudent arrangement in order to better inform itself as to the proper approach to take. Again the respondent had to take into account not only the interests of it's two employees, the claimants, but also it's other employees - the grieved against and the wider interests of the running of the Finance Department and the Trust itself.

It also appeared that the claimants' case in relation what arrangements should or should not have been made to facilitate their attendance at the disciplinary hearing was restricted to the claimants' former case on disability discrimination - a case which has in fact not been proceeded with. Although it is by no means clear - and it is not referred to in the agreed list of issues - if it is being said that proceeding in the claimants absence was an act of race discrimination we do not accept that."

  1. Rejecting the claim that their dismissal was an act of race discrimination the Tribunal then found as follows in respect of unfair dismissal and wrongful dismissal:

"11.3 The Unfair Dismissal Complaints

11.3.1 Potentially fair reasons to dismiss

We must first be satisfied that the respondent has shown a potentially fair reason or reasons to dismiss. The reasons which they have sought to show have been first some other substantial reason justifying dismissal - that is in relation to the irretrievable breakdown in working relationships, and secondly, the conduct of the claimants - that is in relation to the finding of bad faith in relation to both claimants in terms of the PEG grievance, the accessing of Mr Leek's confidential document and the provision of a revised copy of the Ferres letter in Mr Bashir's case and in Mrs Bashir's case, the misrepresentation of Mrs Hilditch's statements with regard to Mr Horsfield. Having rejected the claimants case that there was a discriminatory reason for their dismissal and the claimants not suggesting that there was any other ulterior reason than that we find that the respondents have shown two potentially fair reasons to dismiss.

11.3.2 Were these reasons actually fair?

We have then gone on to consider whether those reasons were actually fair by reference to Section 98(4) of the Employment Rights Act 1996 and the appropriate test set out in Burchell v British Home Stores. Although unusually the disciplinary hearing proceeded in the claimants' absence, we have found that there were special reasons for that. We also accept that the respondents were entitled to be sceptical about the claimants stated medical condition as related to them by Dr MacNeill's report, in contrast with the intellectual effort and energy that must necessarily have been required at the same material time in order that the claimants could instruct their solicitors to present the subsequent claims to the employment tribunal and engage in correspondence with the respondent. Accordingly, in the exceptional circumstances of this case we find that there was no procedural unfairness occasioned by proceeding in the claimants' absence. Whilst the claimants have sought to make capital of the failure of the disciplinary panel to preserve its notes and of its failure to have formal minutes taken at the time, that is to ignore the very detailed nature of the dismissal letters which, we are satisfied, stand in sufficiently for minutes of the disciplinary hearing. We are satisfied that the respondent was entitled to accept the finding of the grievance panel concerning bad faith. Although we have found that the denial of an appeal against the grievance outcome was wrong in law we do not find that that leads to a conclusion that the dismissal was unfair. Although the disciplinary panel adopted a rather ambiguous position as to what it felt it could or could not do in terms of reviewing or re-considering the grievance panel's bad faith finding, that does not alter the fact that the claimants were afforded the opportunity to participate in the disciplinary hearing. If they had attended that would at least have afforded them the opportunity to challenge the earlier bad faith finding. We are satisfied that the irretrievable breakdown in the working relationship interrelated, as it is with the bad faith finding, was in itself sufficient to justify dismissal as being for 'some other substantial reason'. We also find that even in the absence of the irretrievable breakdown factor there was material on which a reasonable employer could conclude that gross misconduct had occurred. That was probably satisfied in any event by the bad faith finding in relation to the grievance, but if there were any doubt as to the gravity of the reason for dismissal, that is removed by the findings of serious misconduct as the dismissal letter puts it in relation to some, albeit not all, of the allegations levelled against the claimants. We find that in all the circumstances of the case, those findings of serious misconduct were open to a reasonable employer and that taken with the bad faith finding, again a reasonable employer would be entitled to conclude that gross misconduct had occurred. Accordingly there was a second valid and fair reason for this employer to dismiss these claimants.

11.3.3 Was the dismissal automatically unfair contrary to Section 98A?

It is unclear from the claimants closing submissions whether this is still part of their case. Although we have found a breach of the statutory grievance procedure, that does not have the result that the subsequent dismissal is automatically unfair. The claimants' case had appeared that to be that delay meant that the statutory dismissal and disciplinary procedure had not been completed. However, if that was their case, we find that it is defeated by the exposition of the relevant law in the case of Selvarajan v Wilmot. Accordingly we find that there was no automatically unfair dismissal either.

11.4 Wrongful dismissal

Although we have found that a reasonable employer would have considered that gross misconduct had occurred, hence a fair dismissal, the issue here is slightly different. We ourselves need to make the determination whether gross misconduct has occurred. We do make that finding. It follows therefore that the respondent was not in breach of contract by dismissing the claimants summarily. Accordingly the wrongful dismissal claim fails."

  1. Against that, regrettably lengthy recital of the relevant facts and of the Tribunal's conclusions, we turn to the grounds of appeal.
**The Appeal**

Unfair Dismissal

  1. In his amended grounds Mr Bourne submits that, in law, these dismissals could only be found to be unfair. The Trust's refusal, in breach of the statutory provisions, to grant the Claimants an internal appeal against the finding of bad faith by the grievance panel, and the subsequent refusal of the disciplinary panel to permit the Claimants to challenge that finding, vitiated a fair dismissal. The Tribunal's decision to the contrary was therefore arrived at in error, or was perverse.
  1. In support of these grounds, Mr Bourne submits essentially as follows:

(i) There was no or insufficient explanation by the Trust for the finding of bad faith by the grievance panel, and no distinction was made between the various grievances in this respect.

(ii) Even if there were grounds to justify that finding, the Claimants could not challenge it, either on appeal or in the subsequent disciplinary proceedings, where the panel was limited to considering only the appropriate sanction in response to that finding. A grievance procedure is not equivalent to or a substitute for a disciplinary hearing, at which the employee is provided with an opportunity to explain (see Clarke v Trimoco Group [1993] IRLR 148). An employee should not be found guilty of such a charge before first being heard upon it. Even if the Claimants had attended the disciplinary hearing they would not have been able to challenge the finding of bad faith.

(iii) The Claimants were dismissed in their absence for having brought their complaints in bad faith and by reason of the resulting, irreparable breakdown in relationships. In so far as the dismissal was based on grounds other than the finding of bad faith the Trust failed to explain to what extent those other reasons, absent bad faith, justified dismissal. The Tribunal therefore erred in upholding the fairness of a dismissal insufficiently explained by the Trust, the burden being upon them to establish the principal reason for dismissal. There is little doubt that the finding of bad faith was the main reason for the Claimants' dismissal in this case.

(iv) Further, the Tribunal found that the Trust's conclusions as to other serious misconduct justified dismissal when taken together with the bad faith finding, so that there was nothing, absent bad faith, to justify the Claimants' dismissals.

(v) The Tribunal therefore erred in law in concluding that this dismissal was fair.

(vi) Alternatively the Tribunal reached a conclusion that no reasonable Tribunal could have reached on the evidence and the appeal should succeed on grounds of perversity.

  1. It is common ground in this case that well-established principles of fairness should be applied by employers in conducting their disciplinary procedures, and that failure to apply them will usually result in the dismissal being found to be unfair. There is no dispute as to the law and the relevant principles in play and they need no citation of authority. The opportunity to know the case against you, and to be heard in your defence, lie at the heart of those principles.
  1. Initially, and like the Tribunal below, we too reflected with unease upon the fairness of a procedure which Mr Bourne submitted had resulted in employees being found, in their absence, to have pursued grievances in bad faith; being refused an internal appeal against that finding; being denied the opportunity to challenge that finding at a disciplinary hearing, at which they were not present; and being found guilty of gross misconduct in acting in bad faith and dismissed.
  1. Summarised in that way by Mr Bourne, without any reference to the factual context, the Tribunal's decision that the dismissal of these Claimants was fair seems, at first, surprising.
  1. However, as the Tribunal observed, this was a most unusual case. The facts found really speak for themselves. Even well established principles of fairness, such as those relied upon by Mr Bourne, fall to be considered and applied within the relevant factual matrix. They do not exist in a vacuum. We do not accept Mr Bourne's submission that they are immutable, in the sense that the facts can have no bearing upon their application.
  1. We all agree that it is likely to be only in an exceptional case that a summary dismissal, in circumstances where these principles have not been applied, will be upheld as a fair dismissal. The essential question for us is whether the Tribunal were entitled to view this as such a case. We have concluded that they were. We are not persuaded that their findings in this case were arrived at in error, or that their decision can be said to cross the high threshold for a successful perversity challenge.
  1. Whilst Mr Bourne understandably focused on the Tribunal's findings in respect of the decisions of the grievance and the disciplinary panels, this Tribunal spent many days listening to and assessing a great deal of evidence, and considering a large number of issues. They were plainly entitled to have regard to all that evidence, including their criticisms of the Claimants' own conduct, when examining the actions of the Trust and the events leading to the Claimants' dismissals. In this case it is of particular importance, when considering Mr Bourne's specific criticisms, to read this judgment as a whole and to consider the findings in their entirety.
  1. The Tribunal identified a pattern of unreasonable behaviour and procedural machinations adopted by these Claimants. Each of them was found to have raised a multiplicity of grievances concerning treatment which they alleged to be racially motivated. All of them were fully investigated and rejected. Mr Bashir evidenced a belief as to a previous history of personal, racially motivated attacks against them both, which was found simply not to reflect the reality of the situation. This had led him to embellish, if not misrepresent his case before the Tribunal. There was unchallenged evidence that he had voiced an intention to "play the race card", and that he intended to pursue a spurious race discrimination complaint if he saw the need to. The allegations of racism against the Trust were extended at the Tribunal hearing to the three members of the grievance panel, who had not previously been the subject of such allegations.
  1. As regards the composite PEG grievance the Claimants were the subject of damning criticism by the Tribunal on the evidence before them. Their approach was found to be characterised by obstruction and non-cooperation; refusing on the one hand to agree that any investigation into their allegations was necessary, and objecting to the personnel charged with dealing with it; refusing on the other hand to provide any information or assistance to enable the person dealing with the grievance to understand their allegations, preferring to keep their cards close to their chest; adopting an approach that required the Trust to trawl through a large amount of documentation in order to see whether they could find anything to support the Claimants' vague and un-particularised allegations of racially motivated treatment; causing grievance hearings to be postponed at the last minute, and then refusing to attend those hearings. In this way they were found to have deliberately engineered a situation in which the weaknesses in their allegations might be overlooked by manipulating the Trust into proceeding in their absence, in order to provide the Claimants with further ammunition to use against their employers.
  1. Of particular importance in this respect is the Tribunal's finding as to the Claimant's continued pursuit of this grievance. Not only was the grievance based entirely upon a misapprehension, after acquiring a confidential document in an underhand way, but the Claimants chose to persist in their allegations long after it had become clear to them that there was a credible and entirely innocent explanation for what had happened. This, as it seems to us, would have been clear to both the Claimants themselves, and those advising them, upon receipt of the Trust's first ET3 in April 2007, which contained a detailed account of the entire PEG exercise, and which was supported by the relevant documentation and statements. Mr Bourne did not dispute this. He suggested, rather, that the Claimants may have considered it to be too difficult and undignified for them to back down at that stage, and may have felt that it was necessary to see it through. Even if that were correct, however, and there is nothing before us to suggest that it is, it can hardly justify their continued pursuit of allegations of racial discrimination which they knew or ought to have known to be unsustainable.
  1. All the members of this Appeal Tribunal acknowledge the difficulties and the competing considerations that arise in such cases. On the one hand employees must be confident that their complaints of discrimination will be fully and sensitively investigated through the relevant grievance procedures, and that they will receive appropriate support and assistance during what can be a difficult process for everyone involved. Those charged with investigating and hearing such grievances should always be sensitive to the covert nature of discrimination and therefore to the difficulties that exist in exposing it.
  1. On the other hand, those against whom such allegations are made, but who have not deliberately discriminated either directly or indirectly, are also deserving of support in responding to them. The investigation and hearing may take some time. Emotions will often run high on both sides during the process.
  1. It may emerge during an investigation that what happened, and what led to the allegations, was due in fact to a misunderstanding, or to a failure in communication. We all agree that the integrity of the process, and the confidence which employees on both sides must have in it, risk being undermined if those who make such allegations then continue to pursue them even when provided with information showing their concerns to be unfounded. It seems to us that those who deliberately adopt such a course run the risk that they will be found to have acted in bad faith in so doing.
  1. In this case the Tribunal found both that the grievance panel were entitled to conclude on all the evidence that the Claimants had not pursued their grievances in good faith; and that the Claimants' failure to take part in the grievance hearing, and their manipulation of the Trust in deliberately engineering that situation, could properly be construed as part of that lack of good faith. We have scrutinised the Tribunal's findings of fact and their reasoning with care. In our view no error of law has been disclosed in findings which we consider were open to them in the unusual circumstances of this case. Further, given the evidence before them, their decision cannot be said to be perverse.
  1. Mr Bourne took us through the 12 page decision letter from the grievance panel dated 17 July in some detail, analysing each finding in each grievance in turn. He sought to persuade us that there was no basis for the finding of bad faith, which he suggests appears as an 'add on' at the end, and which he submits was insufficiently explained.
  1. We reject this approach. It is simply inappropriate in this case to seek to dissect this document, and to analyse each line in a letter which, we have no doubt, was composed and phrased by this panel with considerable care. There are in any event clear findings within it that much of what the Claimants were saying was untrue, or involved a distortion of the facts. Read as a whole, and against the background we have referred to, we consider that the panel's findings were clear, and that their final conclusion that the Claimants had acted in bad faith was sufficiently evidenced and explained.
  1. We note that the Tribunal were themselves concerned about the circumstances in which this finding came to be made. They raised their concerns with the panel chairman, Mr Donnelly, before declaring themselves satisfied on all the evidence that the panel were entitled to come to this conclusion in what was obviously an unusual case. The Tribunal made detailed findings of fact at paragraphs 8.3.44 to 8.3.62 as to the panel's procedures and the conclusions arrived at. They found that the Claimants' manipulation of the process formed part of that bad faith.
  1. Finally, whilst the Tribunal accepted that it might have been better to deal separately with the strength of feeling of those against whom complaints had been made, they did not consider that that undermined either the panel's entitlement to find that there was bad faith, or the overall fairness of the process. The Tribunal considered the matter thoroughly and we reject Mr Bourne's criticisms of their reasoning.
  1. The fact that the Claimants could not then appeal against the panel's finding was the product of both the Trust's own procedures and the Claimants' decision, despite being advised of the consequences, to have their grievance registered at Stage 5, the final stage of the procedure.
  1. The Tribunal acknowledged that there was in consequence a breach of the statutory procedural requirements in the Employment Act 2002. However, it is common ground that a breach of these procedures gives no free standing right to individuals to bring a claim in the Employment Tribunal. Nor are the statutory procedures implied into the contract of employment. Rather, Section 32 of the 2002 Act gives an Employment Tribunal the opportunity, should an otherwise justiciable claim succeed, to order an uplift in the compensation awarded if the Tribunal consider it right to do so. Where an employee makes an informed decision to register a grievance at the final stage of the procedure, a Tribunal might well conclude that it would not be appropriate to award any uplift in such a case.
  1. The question here is whether the failure to afford an appeal from that finding, and then a failure to permit it to be challenged at the disciplinary hearing, vitiated the fairness of the entire process, as Mr Bourne submits.
  1. The Tribunal were plainly alive to these issues and considered them carefully, as have we. They rejected the Claimants' allegation of retaliatory action by the Trust in commencing disciplinary procedures, which the Tribunal found were "hardly surprising" in the circumstances. The main disciplinary charge was that,

"In bad faith, you raised and proceeded with grievances against colleagues in the finance department. This allegation had already been found proved by the Trust Board panel who sat on 9 July 2007 and heard the grievance. In this context bad faith meant that the grievances were raised and continued to be raised even though those raising them knew the relevant allegations were untrue."

  1. On balance, and despite some ambiguity in the evidence, the Tribunal found as a fact that the Claimants could deal only with the effects of that finding at the disciplinary hearing, and could not challenge the finding itself. However, whilst the Claimants were told that the disciplinary panel could not reopen the finding of bad faith, the Tribunal found on the evidence that they were given every opportunity to respond to it and to seek to mitigate its effects. They were repeatedly invited to participate, to arrange for representation if they did not attend, or to send in written submissions. The email sent to the Claimants' solicitors on 18 March 2008 said expressly "… your clients are invited to make submissions regarding that finding. Those submissions will then be considered before a disciplinary sanction (if any) is imposed in respect of that finding".
  1. The Claimants could have attended the hearing themselves, or arranged representation, or presented written representations addressing the underlying facts. Such representations could have included, for example, the awkward position that Mr Bourne now suggests the Claimants were in, in finding it difficult to back down and to withdraw their allegations, setting out their reasons. Instead they chose not to engage with the process at all, just as they had chosen not to attend on the second day of the grievance hearing when they were afforded that opportunity. Further, they chose to say nothing relating to the substance of their allegations. Rather, they continued to raise only procedural objections through their solicitors.
  1. In our judgment the decision of the EAT in Clarke v Trimoco does not assist Mr Bourne. On the facts of that case the EAT held that the Employment Tribunal had erred in equating the availability of a grievance procedure with the affording to an employee of an opportunity of defending himself against a serious charge of dishonesty. The EAT pointed out that the two procedures are significantly different in kind. We agree. In the judgment Knox J referred to the requirements of natural justice, encompassing the need for the person accused to know the nature of the accusation made, and to be given an opportunity to state his case; and the need for the tribunal to act in good faith.
  1. In this case there is no suggestion that the disciplinary panel were not acting in good faith. Clearly, the Claimants had notice of the charges they faced. In the special circumstances of this case the Tribunal were satisfied that they had been afforded ample opportunity to explain themselves.
  1. The Tribunal had regard, correctly, to Section 98(4) Employment Rights Act 1996 and to the well known tests in BHS v Burchell. We can identify no error of law in their conclusion, at paragraph11.3.2, that in the special circumstances of this case there was no procedural unfairness in the disciplinary panel's decision to proceed with the hearing in the Claimants' absence. We consider that the Tribunal were entitled to be sceptical as to the Claimants' stated medical condition, in view of the level of activity and energy that they were simultaneously devoting to the preparation of their Tribunal claims.
  1. Nor do we consider that they erred in concluding that there was no procedural unfairness occasioned by the panel's decision to accept the finding of bad faith made by the grievance panel. We note from the lengthy dismissal letters to which we were taken that the disciplinary panel gave detailed consideration to the issue of bad faith, not merely accepting the grievance panel's decision, but examining with care all the underlying evidence in support.
  1. For all these reasons it was, in our judgment, open to this Tribunal to find that the lack of an appeal, or of the opportunity to challenge the substantive finding of bad faith at the disciplinary hearing, was not fatal to the overall fairness of the decision to dismiss in this case.
  1. So far as the reasons for dismissal are concerned, we do not accept Mr Bourne's submission that the main reason for the dismissal of these Claimants was the finding of bad faith, or that the Trust had failed sufficiently to explain how the other reasons justified dismissal.
  1. Mr Bourne focused on bad faith in order to support his submission that the Tribunal erred in finding the dismissal to be fair. However, we do not consider that the Tribunal found bad faith to be the principal reason for dismissal. Just as important, if not more important in this case, was the irretrievable breakdown of working relationships in the Finance Department.
  1. The Tribunal found that the Trust advanced two potentially fair reasons to dismiss. The first one advanced was the breakdown in relationships, which constituted some other substantial reason justifying dismissal. A fair reading of the Tribunal's finding in paragraph 11.3.2 is that, whilst the irretrievable breakdown in relationships was "interrelated with" the bad faith finding, which it clearly was, that reason was in itself sufficient to justify dismissal. There was therefore a valid, fair and free standing reason for the Trust's decision to dismiss these Claimants in the circumstances.
  1. In our view the Tribunal were entitled so to find. We note that the letters containing the detailed reasons for the decision to dismiss referred first to this reason, and dealt with it separately, as did the earlier letters of request for them to attend the hearing, where this matter was clearly and discretely raised. The views of the Claimants' colleagues were strongly expressed, strongly held and repeated on several occasions. The Claimants were invited to respond and did so. Whilst there was inevitably some inter-relationship with the finding of bad faith, it cannot sensibly be suggested that, absent that finding, the Claimants' colleagues would not have expressed the same feelings or registered the same objections to working with them. It played no part, in that sense, in the views expressed that working relationships were beyond repair.
  1. The Tribunal would no doubt have had regard in addition to the position of Mr Wilson, who was not involved in any way in the grievance but who felt that the breakdown of trust was so complete and irrevocable that line management of the Claimants could not be transferred to him as an alternative arrangement.
  1. We therefore agree with Mr Algazy, that these dismissals were found, on solid ground, to have been based on some other substantial reason which was free standing, independent of the bad faith finding, fully explained and unimpeachably found to be fair.
  1. The Tribunal went on to find that there was a second, valid and fair reason for dismissal, namely gross misconduct. A reasonable employer could have fairly dismissed for bad faith alone, but in any event the other findings of misconduct, taken with bad faith, would enable a reasonable employer to conclude that gross misconduct had occurred. This reasoning, in our view, contains no error of law, but in any event the Tribunal had already found that the Trust was entitled to dismiss the Claimants for the other substantial reason advanced.
  1. For all these reasons the Tribunal, in our judgment, did not err in law in concluding that the Claimants had been fairly dismissed in the circumstances. Further, their decision cannot be said to be perverse.

Victimisation and Wrongful Dismissal

  1. In view of our conclusions on the main challenge in this appeal we can deal with these matters shortly.
  1. In relation to victimisation Mr Bourne submits that there can be no doubt in this case that the reason given by Mr Priestley and his colleagues for the breakdown in relationships was the fact that the Claimants had accused them of racial discrimination. He submits that (a) the Tribunal erred in law in failing to take account of the fact that the Claimants had never had the opportunity to challenge the panel's finding of bad faith; and (b) absent the finding of bad faith, reliance by employers on a breakdown in relationships by reason only that the employees had brought complaints of discrimination meant that there was inevitably an act of victimisation. Absent that finding, the Claimants were therefore protected in law from any allegation that there had been a breakdown in the relationship by reason of their complaints.
  1. For the reasons we have already set out, however, this Tribunal concluded, and were entitled to conclude, that the Claimants had had the opportunity to participate in the process and make representations as to the bad faith finding and as to the underlying facts. Further, irrespective of the grievance panel's finding, the strong views expressed by the Claimants' colleagues clearly included their own strongly held beliefs that these Claimants had acted in bad faith; and the Tribunal found that they had for the reasons they gave. The Tribunal made a clear finding at paragraph 11.2.9 that the fact that the Claimants were disciplined was not by reason of the fact that they had done any protected act. The Tribunal's decision to reject the complaint of victimisation seems to us to be unimpeachable.
  1. Finally, we reject the submission that the Tribunal failed, at paragraph 11.4, to explain what the gross misconduct they found to have occurred comprised, and that they therefore erred in finding that the dismissals were not wrongful. The basis for that conclusion had been clearly and fully explained in the previous paragraphs in this judgment, as we have set out above. In our view no error of law is disclosed in the Tribunal's rejection of the claim of wrongful dismissal.
  1. It follows that, for the reasons we have given, this appeal must be dismissed. We pay tribute to the careful way in which this Employment Tribunal set about its task in what was a lengthy and difficult case and, ultimately, an extremely sad case for all those involved.

Published: 10/06/2010 18:10

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