Daley v Serco Home Affairs Limited & Ors UKEAT 0086/09/0701

The Claimant's appeals against the Employment Tribunal's conclusions on the issues of constructive dismissal and four specific allegations of discrimination on the grounds of race failed on the facts. The Employment Tribunal had adequately set out the facts it found and explained the reasons for its findings.

Appeal No. UKEAT/0086/09/RN

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 14 April 2009

Judgment handed down on 7 January 2010

Before

HIS HONOUR JUDGE SEROTA QC

MR C EDWARDS

MR J MALLENDER

MR F DALEY (APPELLANT)

SERCO HOME AFFAIRS LTD AND OTHERS (RESPONDENTS)

Transcript of Proceedings

JUDGMENT

**APPEARANCES**

For the Appellant MR J SYKES (Representative)

Messrs R C Hall Solicitors Gibson House 800 High Road Tottenham London N17 ODH

For the Respondent MS M TETHER (of Counsel)

Instructed by: Messrs DLA Piper UK LLP Solicitors Victoria Square House Victoria Square Birmingham B2 4DL

**SUMMARY**

UNFAIR DISMISSAL: Constructive dismissal

RACE DISCRIMINATION: Direct

The Claimant's appeals against the Employment Tribunal's conclusions on the issues of constructive dismissal and four specific allegations of discrimination on the grounds of race failed on the facts. The Employment Tribunal had adequately set out the facts it found and explained the reasons for its findings.

**HIS HONOUR JUDGE SEROTA QC****Introduction**
  1. This is a full hearing of an appeal by the Claimant from a decision of the Employment Tribunal at London South (Employment Judge Stacey presiding). The decision was sent to the parties on 25 July 2008. The Employment Tribunal dismissed all of the Claimant's claims for unfair dismissal (constructive dismissal), victimisation and harassment on the grounds of race, and disability discrimination. The Respondents were his former employers and seven former employees of the First Respondent Employer. The Claimant's case was that the Respondents acted in concert to discriminate against him on racial grounds, to victimise and harass him. The Employment Tribunal had to consider approximately 30 specific allegations of alleged discriminatory conduct.
  1. The Claimant issued four separate sets of proceedings that were considered by the Employment Tribunal:

(a) 17 October 2006 alleging discrimination on the grounds of race.

(b) 29 December 2006 alleging unfair dismissal, disability discrimination,

discrimination on the grounds of race, breach of contract and unauthorised

deduction from wages.

(c) 9 February 2007 alleging discrimination on the grounds of race.

(d) 25 December 2007 alleging discrimination on the grounds of race and disability.

  1. The hearing before the Employment Tribunal lasted some 15 days, together with a reading day. The Employment Tribunal considered the matter for three days in chambers and its judgment extends to 189 paragraphs over 43 pages. The Claimant's Notice of Appeal extends to 26 pages and raised allegations of bias on the part of the Employment judge and challenged many of the factual conclusions of the Employment Tribunal. On 24 October 2008, HHJ Ansell disposed of the appeal under rule 3(7) of the Employment Appeal Tribunal Rules of Procedure. However, on 29 January 2009, Slade J allowed the Claimant's application under rule 3(10) in part and directed that there should be a full hearing of the appeal, in relation to the issue of constructive dismissal and four specific allegations of discrimination on the grounds of race. As we have said the grounds of appeal included allegations of perversity and failure to give adequate reasons. The allegations of bias and all other grounds were disposed of by Slade J who directed that no further action be taken upon those parts of the Notice of Appeal.
**The Factual Background**
  1. The Claimant is of Afro#Caribbean ethnicity. The Respondent provides custody services to HM Prisons. On 9 August 2004, the Claimant joined the Respondent initially as a trainee Prison Custody Officer for a six month period, followed by a further probationary period of six months.
  1. The Claimant's role was to transfer prisoners from police stations and prisons to court. His duties included providing custodial care of prisoners at court in a caring and humane manner while adhering, at the same time, to the requirements of good security. He was also responsible for transporting prisoners to prisons in accordance with the courts' instructions. We assume that it is axiomatic that the highest standards of conduct are required of persons acting as Prison Officers.
  1. The Claimant asserted that he had been subject to discriminatory conduct from approximately October 2004. It is unnecessary for us to set out all the allegations made by the Claimant as these were rejected in terms by the Employment Tribunal based upon its findings of fact. I do not propose to summarise those allegations. We observe that the course of the Claimant's employment was not incident free and included a formal grievance brought against him by a female fellow employee upset by his behaviour. We are bound to observe that the findings of the Employment Tribunal do not reflect well at all on the Claimant and make unhappy reading.
  1. The Employment Tribunal rejected the Claimant's evidence; it found that after the complaint made against him, on 18 April 2005, he became less co#operative at work and non#compliant with instructions from his manager. His evidence in certain regards was bound to be "inherently implausible"; see for example paragraph 30.
  1. At paragraph 46 the Employment Tribunal found as at July 2005:

"He was becoming increasingly hard to manage and his behaviour had developed from non compliance to outright aggression and hostility towards his managers especially Ms Fade and Ms Head. He would not communicate effectively with them and seek their permission when required or comply with their reasonable management instructions

Following the visit to Greenwich Magistrate's Court Mr Daley wrote to Ms Fade (p167) complaining that her behaviour constituted harassment and that he would be contacting her manager regarding the incident and referred to a message he had left on her voicemail when he had vented his frustrations. On this occasion, as with others which we shall describe in due course, Mr Daley had responded to a legitimate query from his manager with an aggressive and sustained response both verbally and in writing coupled with a threat to report her to more senior managers and external authorities. This is a pattern that repeated itself throughout the course of his employment. He alleged breach of the Data Protection Act in this example, but does not appear to have made a complaint to the Information Commissioner. Again it is a pattern that we shall see develop, of his asserting that he will take matters further and involve external agencies and then fail to do so."

  1. The Employment Tribunal clarified with the parties 30 specific allegations upon which his claims for discrimination, victimisation and harassment were based. In relation to his claim for unfair dismissal, at paragraph 11, the Employment Tribunal noted:

"The Claimant brings an allegation of constructive dismissal, alleged to be unfair contrary to Section 98 Employment Rights Act 1996 (ERA 1996). The allegations and incidents relied on in support of the alleged fundamental breach of the Claimant's contract by the Respondent is limited to the allegations listed in the agreed issues set out above."

  1. As we have already noted only 4 of the 30 allegations (all of which were found against the Claimant) form part of this appeal. The first of those (although not the first chronologically) is to be found at 6:17:

"By allegedly failing to pay the Claimant company sick pay for a period of illness from November 2005 to January 2006."

  1. This allegation was dealt with by the Employment Tribunal at paragraphs 149#150. The Claimant's complaint was that he did not receive discretionary sick pay after he had used up his contractual entitlement. The Employment Tribunal noted that the Claimant had several lengthy periods of sickness from November 2005 # January 2006 and complained about his level of sick pay. The Employment Tribunal explained that a Director of Human Resources and Development (Ms Hamilton) had considered that the contractual provisions had been met. The Claimant was involved in an incident with a prisoner, one Winston Eubank, in July 2006. He returned to work following this incident. On 9 October 2006 he produced a sick note from his doctor, which stated he was suffering from a stress-related problem but did not link this to any physical injury or the incident with Mr Eubank. Nevertheless, the Respondent decided to exercise discretion and grant him contractual sick pay following a complaint by the Claimant. However the Respondent (at a higher level) concluded that the Claimant was not entitled to sick pay because it was not satisfied that his absence was solely due to a physical injury sustained by an assault from Mr Eubank and there were no reasons to relax the rules in the Claimant's case; see paragraph 152. The Claimant appealed against this decision and lodged a grievance which was not upheld, nor did the Claimant exercise a right of appeal. He subsequently complained about sick pay and his grievance was upheld following a meeting in May 2007.
  1. The next allegation is to be found at 6:7:

"That on 18 April 2006 the Respondent conspired with Sophia Joannou to have the Claimant falsely arrested and detained."

Ms Joannou was an employee of HM Court Service at Greenwich Magistrate's Court.

  1. In his application of 17 October 2006 (page 80) the Claimant alleged:

"On Tuesday, 18 April I was illegal [sic] detained by Serco at Greenwich Magistrates Court without a warrant for my detention. Pat Rodal and Jennine Buttler was present whom are senior [sic] members of staff. Procedures were not followed and I have requested a copy of their policy and procedures for detaining a prisoner in custody in which I was told they have no policy and procedures."

The Employment Tribunal deal with this matter at paragraphs 67#79. The Claimant had incurred fines at South Western Magistrate's Court which he had not paid and had not appealed against within the applicable time limits. He received a summons to attend South Western Magistrate's Court, did not attend and a bench warrant was issued for his arrest following his failure to attend a means inquiry on 11 April 2006. The warrant was not backed for bail. The Employment Tribunal, noted at paragraph 67:

"For the avoidance of doubt we should explicitly state that we find as a fact that the warrant was issued."

  1. On 17 April 2006 the Claimant was rostered to take overnight prisoners from police cells to Greenwich Magistrate's Court. The Claimant had previously attended Greenwich Magistrate's Court on 29 November 2005 when he had been arrested and bailed in the court building. It was a term of his bail that he should attend Greenwich Magistrate's Court on 11 April 2006. This was both told to him and confirmed in writing by a letter from the court; see paragraph 68. On 11 April 2006 he failed to attend Greenwich Magistrate's Court, and as a result a warrant was granted and the authority sent to South West Magistrate's Court to generate a warrant to be circulated through the police national computer. Mr Daly was apparently unaware that a warrant had been issued. Mr Daly generally attended Southwark Crown Court as he had the appropriate driving licence for the 12 cell van but he was, on occasions, asked to attend Greenwich Magistrate's Court depending upon the Respondent's operational requirements. The Employment Tribunal was satisfied:

"That it was operational requirements alone that led him to be allocated Greenwich Magistrate's Court on 18 April. We did not accept that the allocation run had been deliberately changed and Mr Daly somehow entrapped into attending Greenwich Magistrate's Court where he would, as we shall discover in a moment, be arrested."

  1. Ms Joannou was the enforcement officer at the court. On 18 April 2006, she saw Mr Daly, recognised him and informed the police liaison officer of the existence of the arrest warrant, not backed for bail. Ms Joannou also informed Ms Janine Butler (a supervisor, senior custody officer for the First Respondent) that the warrant was to be executed. Ms Butler asked for time to contact her manager and asked that the Claimant's arrest be delayed until she had arrived at court. Her request was granted. The manager, Ms Rodal, ensured as far as she could, the Employment Tribunal found, that Mr Daly be arrested as discreetly and privately as possible; see paragraph 73. She checked with the police liaison officer that he needed to execute the warrant and he confirmed that he did and Ms Rodal accepted his word:

"She does not see it as her role to question a police officer's authority and would have accepted his assertions that a warrant had been issued and needed to be executed no matter what race, ethnic or national origin of the individual concerned. She focused on how the process could be undertaken with least embarrassment to Mr Daly."

The Employment Tribunal noted how she had attempted to mitigate the embarrassment and distress that the arrest might cause the Claimant. She was found to have acted as sensitively as possible and with courtesy and respect. She also arranged for the Claimant to be brought to a closed court without members of the public being present to hear the process in front of the magistrates:

"... and somehow managed to persuade the authorities to close the court for Mr Daly."

The Employment Tribunal found that Ms Rodal considered it necessary to follow the procedures to the letter while maintaining the Claimant's dignity insofar as possible. She was not authorised to dispense with the normal procedures:

"... and would have treated anybody in a similar manner."

She also arranged for the Claimant to be placed in a cell in an area away from normal prisoners while they waited for the hearing to commence.

  1. The Claimant was ultimately given a 28 day prison sentence suspended for 2 years. He has never brought any claim against the police or the court in respect of this matter.
  1. We are bound to note that the Claimant appears to have made light of the gravity of his conduct. It is an extremely serious matter for someone working in the prison system to have had to be brought before the court as the Claimant was and ultimately given a suspended sentence of imprisonment.
  1. The Employment Tribunal also noted:

"In spite of the strenuous efforts made by Ms Rodal, Mr Daley was very indignant about his treatment and failed to accept or appreciate that Ms Rodal was simply following procedures given the fact that Mr Daley had been arrested for breach of court orders and non appearances. At this point Mr Daley resolved to leave Serco and considered that he no longer had any trust and confidence in the organisation. It was, for him, a point of no return."

The Claimant was suspended from operational duties on 20 April pending an investigation into his arrest.

  1. The next allegation relevant to this appeal is 6:19:

"By failing to progress the Claimant's grievance dated 26 May 2006 relating to his arrest on 18 April 2006 (as at the date on which he presented his second claim on 29 December 2006)."

  1. The Claimant wrote to Ms Rodal and raised a grievance in relation to his arrest on 18 April 2006, by letter dated 21 May 2006. He then wrote a further letter to Mr Cull on 23 May 2006 seeking various documents relating to his arrest and asserting he could not proceed in the absence of those documents. The Employment Tribunal found, however, that the Claimant did not lodge any grievance on 26 May 2006 (see paragraph 84 of the Decision). Any alleged delay in dealing with the grievance addressed to Ms Rodal on 21 May 2006 was not pleaded as an act of discrimination and the advocate appearing on behalf of the Claimant, Mr Sykes, did not pursue that issue in his cross#examination of Ms Rodal.
  1. The fourth allegation of discrimination is 6:23:

"Respondent's denial of the existence of the VAR trip sheet for 18 April 2006."

The Employment Tribunal was satisfied (and indeed it was uncontroversial) that a VAR trip sheet for 18 April 2006 outlining the Claimant's duties that day had been created. That slip would have contained movement details. The whereabouts of this document were unknown. It was not before the Tribunal. The Respondent accused the Claimant of having taken it and the Claimant accused the Respondent of suppressing it. It was common ground that records of the Respondent's Banbury base were stored in Solihull. Mr Daly had requested the sheet from Mr Cull in his letter of 23 May 2006 and Mr Cull had replied to state that the information could be requested from the administrator at the base. The relevant base for this purpose was that at Woolwich and the Employment Tribunal found that the Claimant did not ask for the trip sheet from the Woolwich base.

  1. The Employment Tribunal did not find that the Respondent had denied the existence of the trip sheet.
  1. During the course of the hearing before us, we were informed by Ms Tether who appeared on behalf of the Respondents and had appeared before the Employment Tribunal, that during the cross-examination of the Claimant it became apparent that he had in his possession a large number of original trip sheets for April 2006 which she submitted had been unlawfully removed from the Woolwich base. These documents had not been disclosed by the Claimant during the disclosure process but were produced in the middle of his cross-examination from a bag. They were shown briefly to Ms Tether who (after looking at them briefly) returned them to Mr Sykes on the understanding that she could inspect them more carefully in due course. The documents were never produced to her again.
  1. It is perhaps helpful to explain the further chronology relevant to these proceedings. An investigation took place into the Claimant's arrest on 18 April and the investigation also looked into his alleged failure to notify his managers of his court appearances. These led to disciplinary proceedings being initiated in May 2006 against the Claimant resulting in the Claimant being issued with a final written warning. The Claimant appealed and on appeal, the sanction was reduced to a first written warning.
  1. A further disciplinary process took place as a result of an accident that occurred when the Claimant was driving a multi#cell prison van on 29 June 2006. It is instructive to have regard to the findings of the Employment Tribunal at paragraph 99:

"Ms Rodal convened a disciplinary hearing in accordance with the procedure at which Mr Daley was accompanied by his representative, Gerry Walsh. He was notified of the hearing by letter of 14 June and the hearing took place on 29 June 2006. At the hearing, Mr Daley aggressively challenged Ms Rodal's suitability to judge the case and repeatedly asked for a more senior manager and accused Ms Rodal of bullying him. He was high handed and arrogant during the meeting. Ms Rodal resisted Mr Daley's request. It was her job as his line manager to conduct the disciplinary and she was undertaking it as fairly as she could. Ms Rodal has a very mild and gentle manner and is courteous and soft spoken. She is measured, thoughtful and calm. We believe that her manner was such at the disciplinary hearing on 29 June 2006. Mr Daley refused to view the CCTV footage with Ms Rodal at the hearing and after 25 minutes, without engaging in the substantive issues, he walked out of the hearing refusing to play any further part (we find the notes at p542 to be accurate)."

  1. On 21 July 2006 the Claimant played the central role in the recapture of Mr Eubank, an escaped prisoner. He was congratulated by managers. He claimed that he had not been given any formal certificate or presentation. The Employment Tribunal rejected any suggestion that his treatment was discriminatory.
  1. On 12 September 2006, following a complaint by a cyclist in relation to the Claimant's driving of a van, a further disciplinary hearing took place. Again the Claimant was issued with a final written warning but he subsequently appealed.
  1. A further incident took place involving Mr Eubank in which the Employment Tribunal found that the Claimant was making threats or encouraging others to assault Mr Eubank in revenge. This led to yet further disciplinary proceedings and to the Claimant's summary dismissal on 20 October 2006.
  1. Then the Claimant appealed also in relation to the final warning given to him as a result of the complaint by the cyclist. The penalty was reduced to a written warning. The appeal in relation to the assault was allowed on the basis that the officer responsible for the appeal was not satisfied on the evidence of misconduct on the part of the Claimant. He was reinstated with back pay from 20 October 2006.
  1. The Claimant did not return to work on 27 November 2006. He raised further grievances claiming that the conduct of the Respondent could eventually lead to his constructive dismissal. He resigned on 26 July 2007.
**The Decision of the Employment Tribunal**
  1. The Employment Tribunal firstly identified the issues. We have already referred to the 30 issues identified and agreed by the parties. It identified the claims of discrimination contrary to the Race Relations Act 1976, and claims for disability discrimination. As we have already observed, the 30 allegations and incidents identified and agreed upon by the parties were relied upon in support of the Claimant's case that there had been a repudiatory breach of his contract by the Respondent.
  1. The Employment Tribunal considered express contractual terms then went onto deal with the 30 specific allegations. Having considered the factual allegations, the Employment Tribunal went on to consider the law in relation to discrimination on the grounds of race including harassment and victimisation. The Employment Tribunal directed itself as to the law in an uncontroversial manner. It also had regard to the reverse burden of proof set out in section 54A of the Act. The Employment Tribunal also reminded itself of the guidelines set out in Igen v Wong [2005] IRLR 258, as reiterated in Madarassy v Nomura International [2007] IRLR 246.
  1. The Employment Tribunal then went on to direct itself as to the law on unfair dismissal. The Employment Tribunal having directed itself in relation to section 95(1)(c), the Employment Rights Act 1996, in relation to constructive dismissal, continued:

"In this case the Claimant relied on breach of the implied term of trust and confidence and the allegations in all the matters listed as live issues set out above in support of an alleged fundamental breach of express and implied terms. The case was argued as so called ordinary unfair dismissal pursuant to s.98 ERA 1996, as well as dismissal as direct race discrimination, race victimisation and race harassment and disability discrimination.

For the purposes of establishing constructive dismissal, the claimant must prove on the balance of probabilities, that there has been a fundamental breach of contract which goes to the root of the contract of employment entitling the Claimant to consider himself discharged from any further obligation forthwith. We must analyse whether the Claimant left as a result of any such fundamental breach as might have been found, or for some other, unrelated reason. An employee must not delay unreasonably and by so doing inadvertently affirm any repudiatory conduct.

The doctrine of last straw may apply. In such cases the final straw does not of itself need to amount to a breach of contract when viewed in isolation, but the tribunal may consider the totality of the conduct of the Respondent."

  1. After consideration of the parties' submissions, the Employment Tribunal came to its conclusions. We are not concerned with the conclusions in relation to disability discrimination.
  1. It is important to note that the Employment Tribunal having considered the detail of the Claimant's allegations reminded itself (especially in relation to the discrimination claim) that it was necessary to understand the larger picture and that the complaints, as alleged, constituted a continuing course of conduct from which it was invited to infer and consider a pattern of discrimination from the chronology and abundance of evidence before it.
  1. We find it helpful to set out the Employment Tribunal's conclusions on constructive dismissal:

"Constructive dismissal is argued as disability discrimination, race discrimination and race victimisation as well as so called ordinary unfair dismissal. The starting point however is whether there had been a dismissal in accordance with s95(1)(c) ERA 1996.

In this case as is clear from our findings of fact, from the unequivocal evidence of Mr Daley in response to questions from the panel and Ms Tether, he decided that the employment relationship was at an end on the day of his arrest at Greenwich Magistrates Court on 18 April 2006. That was the final straw for him and he repeated this evidence on several occasions. The evidence was surprising, so the Tribunal repeated the question to be clear. Mr Daley reiterated that as far as he was concerned the employment relationship was at an end then. He had reached the point of no return as he told us he believed that the Respondents had engineered his arrest that day.

He did not however resign until over 15 months later on 26 July 2007. His delay is fatal to the claim. It also leads us to conclude that Mr Daly was utterly cynical in his dealings with the Respondent from 18 April 2006 onwards. It calls into question his motivation and purpose in raising the numerous grievances, complaints and issues thereafter, which is not necessary for us to consider for the purposes of this decision, save to reiterate that he was not constructively dismissed within the meaning of s95(1)(c) ERA 1995. Absent a dismissal, the allegation cannot succeed in the context of any of the DDA, RRA or ERA provisions.

But even if Mr Daley could overcome the problem, more fundamentally still, the Claimant has not established any breaches of contract by the First Respondent (whether fundamental or otherwise). The express contractual terms have been complied with concerning all the allegations, for example, the wearing of trainers, entitlement to sick pay, suspension and the handling of disciplinary proceedings.

We also considered whether the implied duty of trust and confidence had been breached in this case. Of particular concern to Mr Daley was how he came to be sent to Greenwich Magistrates Court on the day he was arrested. He suspected it had been deliberately manoeuvred so that he would be arrested and humiliated. If that had indeed been the case it would undoubtedly raise questions of trust and confidence, but we are satisfied that it was not the case. There was ample evidence before us that a warrant for Mr Daley's arrest, not backed for bail, had been issued several days before his actual arrest. Such a warrant can be executed anywhere and requires the police officer to take the person named in the warrant to court, from anywhere. There is therefore nothing special in Mr Daley's being at Greenwich that day. This was a central and significant flaw in the Claimant's argument. The issue of the warrant was nothing to do with the Respondent - it was to do with Mr Daley's failure to attend court when summonsed and his failure to pay off any of his fines in the meantime. If the Respondent knew of the warrant for his arrest, they could have tipped off any police officer anywhere of Mr Daley's whereabouts and contrived a far more public and humiliating arrest and court appearance. The careful and sensitive way in which Ms Rodal treated Mr Daley on his arrest, suggests the opposite: that the Respondents were doing everything they could to minimise the undoubted embarrassment factor for him.

If the Respondents were out to get Mr Daley - the essence of the allegation of breach of the term of trust and confidence, they did not make a very good job of it. Our conclusions below about the various disciplinary hearings and appeals are equally apt here, in the context of constructive dismissal. The obvious and, in our view, correct inference is that they were not."

  1. In relation to race discrimination and victimisation, the Employment Tribunal stood back from the detail of the allegations. It is helpful to set out the Employment Tribunal's conclusions:

"Let us stand back a moment from the detail of the allegations. In the 3 year period that Mr Daley was at work, the Respondent received a complaint of sex harassment by him from Ms King; he failed to inform his managers about numerous Court appearances which resulted in his arrest and conviction resulting in a 28 day prison sentence suspended for 2 years (the maximum period of suspension permitted); complaints by other members of staff; complaints from a cyclist member of the public of being abused by him; he refused to wear the proper footwear or provide medical evidence as to why trainers were necessary; he made constant complaints against every manager who sought to manage him, especially the female managers; he was involved in a road traffic accident whilst driving a 12 cell prison van; and, he was alleged to have incited colleagues to undertake a revenge attack on a prisoner.

The incidents set out above are not comprehensive. The suggestion that the allegations were somehow fabricated was preposterous on the evidence before us. In relation to some of the allegations Mr Daley unwittingly corroborated the management case. For example in relation to his abuse of the cyclist - he admitted telling him to get on his bike and deliberately cutting off the cyclist in the cycle lane so that he was forced to dismount.

Contrary to the assertions of the Claimant, the Respondents have made strenuous efforts to keep a clearly wayward, uncooperative and hard to manage employee within their employment, notwithstanding his behaviour and performance difficulties. His behaviour towards his line managers was rude and aggressive and he failed to take reasonable directions from them. This can be seen from the tenor of his correspondence at the time; it was also apparent to us in the way the Claimant gave his evidence and the way he spoke of them in disparaging and unpleasant terms; and through his body language and demeanour of contempt towards them when they were giving their evidence. He clearly had no respect for them, a lack of respect which he did not seek to hide either during his employment or afterwards, and he spent considerable efforts thwarting their attempts to manage him.

It is the Claimant's case that the Respondents acted in concert together to discriminate against him on racial grounds, to victimise him and to harass him. Such an interpretation is not supported by the evidence. Much play is made of the successful appeals Mr Daley brought against decisions by his line managers. We note there has been confusion in the management of Mr Daley. But the confusion has been wholly to his advantage as he sought to exploit and undermine his line managers by appealing to more senior, male, officers who would, on occasion overturn decisions by less senior managers. The conclusion to be drawn from this is not, however, of a conspiracy, as alleged, but the opposite. It demonstrates fair mindedness that Mr Leonard overturned previous disciplinary sanctions, as did Mr McPherson on occasion. Had the Respondents been acting in concert to discriminate against or harass Mr Daley, there would have been less confusion and more consistency of decision making."

  1. The Employment Tribunal took, for example, the claim of constructive dismissal on grounds of race. It observed that the First Respondent had plenty of grounds on which to dismiss the Claimant for misconduct (his having been given a sentence of imprisonment, albeit suspended, being just one example) yet he was not dismissed. Further, when he did eventually resign, the First Respondent urged him to reconsider. The Employment Tribunal considered if they had been trying to secure the Claimant's exit they would not have given him the chance to change his mind.
  1. The Employment Tribunal, although concerned about his conduct with Mr Eubank, did not consider there was anything to link this "one off decision of lowly officers at a separate and different region of the First Respondent to Woolwich with other events". In any event, the fact of the contact did not excuse the Claimant's request to colleagues to attack Mr Eubank in retaliation. This, in the opinion of the Employment Tribunal:

"Demonstrates Mr Daley's failure to take responsibility for his own actions and seek to blame everyone but himself."

  1. The Employment Tribunal went on to consider that Ms Rodal had been fully entitled to conclude that Mr Daley had driven through a red traffic light outside HMP Belmarsh, whereas Mr Daley's response to the disciplinary charge:

"Was to challenge Ms Rodal's authority to hear the disciplinary proceedings against him - to seek to deflect the charges by aggressive tactics."

  1. The final conclusions of the Employment Tribunal were:

"There is nothing from the evidence that we have heard - either direct or from which inference can be drawn - to suggest that Mr Daley had been treated less favourably on grounds of race, victimisation or that he has been harassed, as defined in relation to any of his many allegations. The burden of proof has not shifted in relation to any one of the allegations made by Mr Daley. Furthermore, the alleged detriments and incidents of less favourable treatment, acts and omissions relied on were all explained on non-racial, non-victimisation and non-harassment grounds. Had the burden of proof shifted and if it were necessary for the Respondents to explain themselves, then they have more than adequately done so. The management actions taken against him, such as they were, were wholly unexceptional and predictable responses to his behaviour and we are satisfied that anyone of a different racial group, or who had not made a complaint of discrimination, who had behaved in the way the Claimant behaved, would have been treated no more favourably.

Our findings of fact on each allegation are set out above. In none of them has the burden of proof shifted, and, in any event, in relation to each of them the Respondent has shown a non-racial, non-victimisation and non-harassment reason for their treatment. We accept that the Claimant has performed a protected act by 21 November 2005."

  1. In the circumstances the claims were dismissed in their entirety against each of the Respondents.
**Grounds of Appeal****The Claimant's Submissions**
  1. In relation to the appeal against the dismissal of the claim that the Claimant had been constructively dismissed, the Claimant submitted that the reasoning of the Employment Tribunal was inadequate and the decision perverse. The Claimant challenges the finding by the Employment Tribunal as to the events of 18 April 2006 when he was arrested, the events at Greenwich Magistrates Court; and his decision to leave the First Respondent in due course, because he allegedly came to the view that he no longer had any trust and confidence in the First Respondent. As the Employment Tribunal put it at paragraph 77, "It was for him a point of no return". The Employment Tribunal returned to this matter as we have already noted at paragraph 175 when the Employment Tribunal, "from the unequivocal evidence of Mr Daley in response to questions from the panel and Ms Tether" decided that the employment relationship was at an end on the day of his arrest and that was the final straw for him. He is said to have repeated this evidence on several occasions. The evidence, the Employment Tribunal said (paragraph 175), was surprising so the Tribunal repeated the question to be clear and Mr Daley reiterated that so far as he was concerned the employment relationship was at an end then. He had reached the point of no return as he told the Employment Tribunal that he believed the Respondents had engineered his arrest that day.
  1. It was submitted to us that the Claimant's evidence was that the incident, although humiliating, did not lead him to consider resigning until his grievance 28 November 2006. It was submitted that the Employment Tribunal had failed to consider whether the implied term of mutual trust and confidence and matters relative to its breach went beyond 18 April 2006. It is said the Employment Tribunal should have considered matters that occurred after that date and that it had failed to have regard to the material sequence of events. These matters included the pre-resignation grievance relating to sick pay on 29 December 2006; the grievance hearing of 13 April 2007; the grievance decision of 30 May 2007 which led to his resignation on 27 July 2007. The Claimant's evidence was that he had resigned because of a totality of all of the matters of which he complained.
  1. Mr Sykes submitted that the Employment Tribunal's reasoning did not identify every separate head of the claim and that having regard to the decision of the Court of Appeal in English v Emery Reimbold [2002] EWCA Civ 605, the Employment Tribunal was required to consider separately each incident.
  1. Mr Sykes also draw our attention to Rule 30(6N) of the rules of Employment Tribunal Rules for Procedure 2004 which required reasons to be given by an Employment Tribunal for any of its decisions.
  1. It was further submitted the Employment Tribunal had failed to consider if the First Respondent broke the Claimant's contract by racist acts and it was, in any event, perverse to find that the employment relationship ended on 18 April 2006 because the Claimant's employment had clearly continued after that date.
  1. The second grounds of appeal relate to Item 6:7, 6:17, 6:19 and 6:23. In relation to 6:7 (the alleged conspiracy with Ms Joannou to have the Claimant falsely arrested and detained) the Claimant attacks factual findings by the Employment Tribunal and suggests that it "invented" evidence that he had driven to Greenwich Magistrates Court on the previous day, 17 April 2006. It was submitted that the evidence supported his claim that there had been a concerted rescheduling of his usual trip so as to take him to Greenwich Magistrates Court on 18 April 2006, but there was evidence indicating a switch of route on the morning of 18 April 2006 having come from the head office at Banbury. There was no referral to a custody sergeant in a police station where the Claimant could apply for bail. The Employment Tribunal is criticised for seeking to evade "the plainly unlawful detention" by asserting, contrary to law, that the Claimant did not need to go through the police custody process as he was arrested by a bench warrant not backed for bail and was already in the precincts of the court. It was asserted that the Employment Tribunal had misunderstood or misconstrued the law relating to bench warrants. We were not, however, directed to any authority supporting this submission.
  1. In relation to Item 6:17 (failure to pay sick pay between November 2005 to January 2006) it is asserted that the First Respondent's witnesses admitted that the certificate produced by the Claimant, (which was to the effect that he had physical injuries) which the Claimant asserts by reasonable inference resulted from Mr Eubank's attack on him, was evidence of injuries sufficient for discretionary payment. The evidence that those witnesses had not seen the certificate was "unlikely evidence as well as convenient and self-serving. The Tribunal did not refer to that evidence." There was no explanation as to why the First Respondent's action was not discriminatory on the grounds of racism. In relation to 6:19 (failure to progress the Claimant's grievance of 26 May 2006) no specific criticism in this regard is made in the Notice of Appeal.
  1. In relation to 6:23 (the First Respondent's alleged denial of the existence of a VAR trip sheet for 18 April 2006) it is submitted that the Employment Tribunal should have accepted the Claimant's case that the First Respondent had failed to produce the sheet.
  1. It was submitted generally that the Employment Tribunal's failure to reach conclusions on these matters showed that it did not find there was a non-racial explanation and accordingly the burden of proof should have shifted. The Employment Tribunal, it was submitted, failed to provide an adequate explanation in relation to any of the four matters to which we have referred.
  1. The Claimant sought in additional submissions to rely on the decision in Bournemouth University v Buckland UKEAT/0492/08 of 8 May 2009 which was published after close of submissions. In that case HHJ Clark held that the reasonable range of responses test had no place in determination of the question of whether there had been a constructive dismissal. The Respondents submitted there was no suggestion that the Employment Tribunal had misunderstood or misapplied the well known principles set out in Western Excavating v Sharp [1978] ICR 221; we agree with that submission and the Employment Tribunal has sufficiently summarised the principle at paragraph 162.
**Respondent's Submissions**
  1. In relation to the question of constructive dismissal, Ms Tether submitted that at paragraph 175 of its decision the Employment Tribunal concluded on the basis of the Claimant's clear evidence he had regarded the employment relationship as at an end on the day of his arrest at Greenwich Magistrates Court in the sense that the Claimant regarded the First Respondent as having broken the implied term of trust and confidence and that he was thereafter seeking an opportunity to leave. So far as he was concerned that was the final straw. The Employment Tribunal did not, however, Ms Tether submitted, find that the employment relationship ended in fact in April 2006 and the Employment Tribunal was simply observing that the Claimant had at that date resolved to leave the Respondent because he no longer had any trust and confidence in the organisation. The Employment Tribunal was, however, justified in finding on the Claimant's evidence that he had affirmed the contract of employment after 18 April.
  1. The Employment Tribunal also concluded that there had been no breaches of the implied term of trust and confidence. The Employment Tribunal was entitled to conclude that the Claimant was "utterly cynical" in his dealings with the Respondent after 18 April and that his motivation and purpose in raising numerous grievances, complaints and issues thereafter was in question.
  1. The Employment Tribunal found that the Claimant had failed to establish any breaches of contract including any breaches of the implied term of trust and confidence and that analysis included matters arising after 18 April. We note that in reply Mr Sykes submitted that the Employment Tribunal appeared to have elided matters relied upon in support of the allegations of breach of contract and those relating to discrimination. He submitted that discrimination and breach of contract are totally different and the Employment Tribunal was wrong to hold that its findings as to discrimination should apply in relation to the claim for breach of contract and breach of the implied term.
  1. Ms Tether submitted that the pre-resignation grievance of 29 December 2006 in relation to the refusal to grant sick pay and the "rejection" of that grievance on 30 May 2007 were not identified as matters relied upon to support a claim of constructive dismissal. These were defined at 6:24 as limited to the allegations listed in the 30 agreed issues.
  1. In any event, the Claimant's grievance was partly upheld and he was paid more than the maximum to which he was entitled. Although there was no medical evidence to support the physical injury, in the medical certificate relied upon by the Claimant, the rejection of the Claimant's grievance could not contribute to or cause a breach of contract.
  1. The Employment Tribunal did not at paragraph 176 state that it ignored matters occurring after 16 April. Neither did it say that it that it was unnecessary to consider the merits of the issues raised by the Claimant as opposed to his motivation and purpose in raising them.
  1. The Employment Tribunal accepted the Claimant's evidence that he regarded the events of 18 April as being the last straw, but it went on in any event to find that there had been no breach of contract in relation to subsequent matters. In this regard our attention was drawn to the Claimant's submissions to the Employment Tribunal at 109/110 of page 224 in the bundle.
  1. Particular matters arising after 18 April are those to be found at issues 6:22 and 6:29 and issues related to sick pay; see paragraphs 153/154. In relation to these specific items; so far as 6:7 was concerned (alleged conspiracy with Sophia Joannou) the Claimant maintained he had been "falsely" arrested and detained; the Employment Tribunal found as a fact that a bench warrant had been issued for his arrest. The Employment Tribunal also on the evidence before it rejected the Claimant's contention that there had been a concerted re-scheduling of his assignments to take him to Greenwich Magistrates Court on 18 April 2006. It found also that the Respondent's conduct was not racially motivated (see Employment Tribunal paragraph 73 to 76). Ms Tether asked forensically what else the Employment Tribunal could say after its findings. Any employee would have been treated in a like manner.
  1. In relation to 6:17 (the alleged failure to pay company sick pay for a period of illness from November 2005 to January 2006) the Employment Tribunal found the scheme was correctly administered and there was no suggestion that employees of a different ethnic group would have been treated any differently. The Employment Tribunal also found that the Claimant had exhausted his contractual sick pay rights.
  1. In relation to 6:19 (failure to progress the Claimant's grievance of 26 May 2006 relating to his arrest on 18 April 2006) Ms Tether submitted the Employment Tribunal found that no such grievance was lodged on 26 May 2006; see paragraph 86 of the decision. A grievance had been sent to Ms Rodal on 21 May 2006 but the delay in dealing with that grievance was not pleaded as an act of discrimination and the point was not raised with Ms Rodal in cross-examination.
  1. In relation to allegation 6:23 (alleged denial by the Respondent of the existence of the VAR trip sheet for 18 April 2006). Ms Tether submitted that the existence of the trip sheet was not denied. The Claimant had asked for the sheet from the human resources manager Mr Cull who told him he could obtain it from the administration at the base at Woolwich but the Claimant never asked for it.
  1. As we have already said, during the Claimant's cross-examination it became apparent that he was in possession of a large number of trip sheets for April 2006 which the Respondent maintained he had unlawfully removed from the Woolwich base. Ms Tether was shown the documents for a brief period only and although she wished to inspect them in greater detail she was never afforded the opportunity to do so.
  1. We now turn to consider the law and we start by considering our general approach to the decision of the Employment Tribunal.
  1. We have in mind the guidance offered by Elias J in Aslef v Brady [2006] IRLR 576 at paragraph 55:

"The EAT must respect the factual findings of the employment Tribunal and should not strain to identify an error merely because it is unhappy with any factual conclusions; it should not "use a fine toothcomb" to subject the reasons of the Employment Tribunal to unrealistically detailed scrutiny so as to find artificial defects; it is not necessary for the Tribunal to make findings on all matters of dispute before them nor to recount all the evidence, so that it cannot be assumed that the EAT sees all the evidence; and infelicities or even legal inaccuracies in particular sentences in the decision will not render the decision itself defective if the Tribunal has essentially properly directed itself on the relevant law."

  1. In relation to the extent of reasons given by the Employment Tribunal, in our opinion it is necessary to view the decision as a whole. Further, what matters is the substance of the Employment Tribunal's judgment looked at broadly and fairly to see whether the reasons given for the judgment is sufficiently expressed to inform the parties as to why they won or lost as the case may be; see Stewart v Cleveland Guest [1994] IRLR 440.
  1. In UCATT v Brain [1981] ICR 542, Donaldson LJ stated:

"…Industrial Tribunals' reasons are not intended to include a comprehensive and detailed analysis of the case either in terms of fact or law…their purpose remains what it has always been, which is to tell the parties in broad terms why they lose or, as the case may be, win. I think it would be a thousand pities if these reasons began to be subjected to a detailed analysis and appeals were to be brought upon any such analysis. This, to my mind, is to misuse the purpose for which reasons are given."

  1. Mr Sykes urged upon us the judgment of Lord Phillips MR in English v Emery Reimbold and Strick Limited [2002] EWCA Civ 605 (30 April 602) in which he said at paragraph 15:

"There is a general recognition in the common law jurisdictions that it is desirable for Judges to give reasons for their decisions, although it is not universally accepted that this is a mandatory requirement – "there is no invariable rule established by New Zealand case law that Courts must give reasons for their decisions", per Elias CJ in Lewis v Wilson & Horner Ltd [2000] 3 NZLR 546 at 565. While a constant refrain is that reasons must be given in order to render practicable the exercise of rights of appeal, a number of other justifications have been advanced for the requirement to give reasons. These include the requirement that justice must not only be done but be seen to be done. Reasons are required if decisions are to be acceptable to the parties and to members of the public. Henry LJ in Flannery observed that the requirement to give reasons concentrates the mind of the Judge and it has even been contended that the requirement to give reasons serves a vital function in constraining the judiciary's exercise of power – see Professor Shapiro's article 'In Defence of Judicial Candor' (1987) 100 Harv L Rev 731 at 737. The function that judgments play under the common law in setting precedents for the future has also been identified as one of the justifications for the requirement to give reasons, although as Mahoney JA stated in Soulemezis v Dudley Holdings (1987) NSWLR 247 at 273:

*

"The court's order is a public act. The judgment given for it is a professional document, directed to the parties and to their professional advisers. It may, in a particular instance, delineate, develop or even decorate the law but that is peripheral and not essential to its nature."*

We would put the matter at its simplest by saying that justice will not be done if it is not apparent to the parties why one has won and the other has lost."

  1. Lord Phillips went on to make clear the extent of the reasons given would depend on the nature of the case and that there was no need for the Employment Tribunal to deal with every argument presented by advocates in support of their case. It was necessary, however, to have regard for the fact that the judgment must enable the appeal court to understand why the original court had reached its decision and he concluded at paragraph 18:

"This does not mean that every factor which weighed with the Judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the Judge's conclusion should be identified and the manner in which he resolved them explained."

  1. We also have regard to Rule 30(6N) of the Employment Tribunal Rules of Procedure 2004:

"Written reasons for a judgment shall include the following information -

(a) the issues which the tribunal or Chairman has identified as being relevant to the claim;…

(c) findings of fact relevant to the issues which have been determined;

(d) a concise statement of the applicable law;

(e) how the relevant findings of fact and applicable law have been applied in order to determine the issues."

  1. As this is a perversity appeal we remind ourselves of what Mummery LJ said in Yeboah v Crofton [2002] EWCA Civ 794:

"Such an appeal ought only to succeed where an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached. Even in cases where the Appeal Tribunal has "grave doubts" about the decision of the Employment Tribunal, it must proceed with "great care", British Telecommunications PLC –v- Sheridan [1990] IRLR 27 at para 34."

**Conclusions**
  1. Broadly speaking we have accepted the Respondents' submissions. In relation to the issue of constructive dismissal, we firstly note that there is no material to justify the submission that the Employment Appeal Tribunal misapplied the principles set out in Western Excavating v Sharp. For completeness we set out the relevant extract from the judgment of Lord Denning MR (1978 ICR 221 at 226):

"A significant breach going to the root of the contract of employment; or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract; then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer's conduct. He is constructively dismissed. The employee is entitled in those circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once. Moreover, he must make up his mind soon after the conduct of which he complains: for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract."

  1. It is clearly inappropriate to go through the decision with a fine toothcomb and, as we have already said, it is not necessary for the Employment Tribunal to make findings on every factual issue before it. The facts found by the Employment Tribunal make clear that the Claimant was an extremely difficult employee and the Respondent's management of him was poor. The Respondent's management appeared to have been afraid by reason of a fear of facing allegations of discrimination, to manage his misconduct effectively.
  1. The findings of the Employment Tribunal as to the conduct of the Respondent at paragraph 187 underpin the decision. The Employment Tribunal are clearly well aware of the distinctions between the elements needed to prove discrimination on the grounds of race, and breaches of contract. Nevertheless, the same factual allegations were relied upon by the Claimant to support both claims (see item 6:24). All factual issues that were material were found against the Claimant and the Employment Tribunal at paragraph 177 found that no breaches of contract (whether fundamental or otherwise) were made out; that express contractual terms were complied with concerning all the allegations. Paragraph 177 of the Employment Tribunal, when read with paragraphs 179 and 180, shows that the Employment Tribunal did consider matters arising after 17 April and that it came to its conclusions there had been no discriminatory conduct and no breaches of contract, having stood back from the evidence; see paragraphs 180 and 187 to 188.
  1. The Employment Tribunal clearly did consider all 30 allegations and, having rejected much of the Claimant's evidence, was entitled to conclude plainly that there had been no breaches of contract and that there had been no discriminatory behaviour on the part of the Respondents.
  1. The Employment Tribunal did not find that the employment relationship ended in April 2006. The Employment Tribunal accepted the Claimant's own evidence that so far as he was concerned the events of 18 April 2006 had completely destroyed his trust and confidence in the Claimant. On the findings of the Employment Tribunal the Respondent had not destroyed the Claimant's trust and confidence; if anything it was the Claimant's conduct that placed him in breach of contract. It followed that the Claimant affirmed his contract of employment, and even had there been earlier breaches of contract (which there were not) they could only be resurrected so as to speak, by further conduct on the part of the Respondent that went to the implied term of trust and confidence; again the Employment Tribunal found there were no such breaches. We note that the Claimant appears to be making rather light of the fact that he had committed criminal offences, failed to pay fines and had failed to attend court when required to do so and had been the subject of a warrant not backed for bail. In our opinion the judgment as a whole sufficiently complies with Rule 32 and the requirements set out in cases such as English v Emery Reimbold and Meek v City of Birmingham District Council [1987] IRLR 250.
  1. We shall now turn to deal with the four specific matters, in respect of which it is said that the Employment Tribunal failed to give sufficient reasons or that its decision was perverse. We start with 6:7 (alleged conspiracy with Sophia Joannou). This is an impossible submission on the facts as found by the Employment Tribunal, especially as the warrant under which the Claimant was arrested was expressly found not to have been backed for bail by the Magistrates Court.
  1. No authority has been put to us to suggest that the Claimant should have been brought before a Custody Sergeant on his arrest; we very much doubt whether a Custody Sergeant has authority to grant bail when someone has been arrested on a warrant issued by a Court, which is not backed for bail and which requires the person arrested to be brought before the Court.
  1. The Employment Tribunal found that the Claimant's duties had not been deliberately rescheduled. If anything, the evidence suggests that the First Respondent treated the Claimant with great sensitivity and consideration having regard to his conduct and the failure to inform the Respondent of the criminal proceedings. We are unable to see how the findings of the Employment Tribunal could be characterised as perverse, nor do we see how it can be said the Employment Tribunal has failed to give adequate reasons for its decisions.
**6:17** (Sick Pay)
  1. There is nothing to suggest the Respondent's conduct was racially motivated whether to raise any possible inference of discrimination or at all. There is no evidence that persons of different ethnicity were treated any more favourably or that the Claimant was treated any less favourably. The Employment Tribunal found that the Respondent had correctly applied its scheme and that the Claimant had exhausted his sick pay rights. We also have regard to the general finding of absence of discriminatory conduct at paragraph 187 of the decision.
**6:19** (Progression of Grievance)
  1. The Employment Tribunal found there was no grievance dated 26 May 2006. The issue was not raised with Ms Rodal to whom an earlier grievance had been expressed. Any delay in considering that grievance was not an issue that required to be determined as one of the 30 issues identified by the Employment Tribunal. It has not been suggested that there has simply been a mistake as to the date of the grievance.
  1. Even were there simply to have been a mistake as to the date, there is nothing to suggest any discriminatory intention on the part of the Respondents. The Claimant does not seek to rely upon any comparator and the Claimant, from the findings of the Employment Tribunal, was wholly at fault for the incident leading to his arrest.
  1. Again we remind ourselves of the Employment Tribunal's findings that there have been no breaches of contract nor acts of discrimination and that the Claimant raised the grievance cynically and with questionable motivation and purposes. The Employment Tribunal was certainly entitled on the facts that it found to come to that conclusion.
**6:23** (Denial of Existence of VAR Trip Sheet)
  1. We assume that if the appropriate facts as to the Respondent's alleged motivation were proved, a denial of the existence of the VAR sheet might be an act of victimisation. However, there is no evidence to support that suggestion. The evidence suggests when the Claimant sought a VAR sheet he was referred by Mr Cull to the administrative base at Woolwich yet he never asked for a copy from the base at Woolwich. The Respondent never denied the existence of the sheet and the circumstances in which the Claimant had obtained trip sheets for the month of April were murky in the extreme. The Employment Tribunal certainly did not find the First Respondent had denied the existence of the sheet and the circumstances in which it could not be shown to the Employment Tribunal did not give rise on the Employment Tribunal's findings to any act of discrimination or victimisation on the part of the Respondent.
  1. In all the circumstances the Claimant has failed to make out his grounds of appeal and the appeal stands dismissed.

Published: 08/01/2010 17:05

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