Stewart v Barnwood Construction Limited UKEAT/0425/14/MC
Appeal against the dismissal of the claimant's claims of race discrimination, victimisation and constructive unfair dismissal. Appeal dismissed.
The claimant's claims of race discrimination, victimisation and constructive unfair dismissal were dismissed by the ET, The claimant appealed using perversity as the ground of appeal.
The EAT dismissed the appeal. The claimant was unable to surmount the high hurdle of establishing that one of the ET's key findings was perverse, nor was he able to show that the Tribunal had erred in law by making a finding that contradicted all the evidence relevant to that issue. Further, while the explanation for the Tribunal's key finding (that the respondent's employee had not spread rumours among the workforce that the claimant would use his race to secure the departure of another employee) could have been fuller, the reasoning was adequate to support the finding, which had been open to the Tribunal on the evidence.
Appeal No. UKEAT/0425/14/MC
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
On 29 October 2015
Judgment handed down on 11 November 2015
THE HONOURABLE MR JUSTICE KERR
BARNWOOD CONSTRUCTION LIMITED (RESPONDENT)
Transcript of Proceedings
For the Appellant
MR NICHOLAS EDWARD (of Counsel)
Free Representation Unit
For the Respondent
MR AKHLAQ CHOUDHURY (One of Her Majesty's Counsel)
Davies & Partners Solicitors
PRACTICE AND PROCEDURE - Perversity
RACE DISCRIMINATION - Detriment
Although the Tribunal's findings of fact were supported by reasoning that was brief, the Appellant was unable to surmount the high hurdle of establishing that one of its key findings was perverse, i.e. such that no reasonable Tribunal could make that finding on the evidence; nor was the Appellant able to show that the Tribunal had erred in law by making a finding that contradicted all the evidence relevant to that issue.
While the explanation for the Tribunal's key finding (that the Respondent's employee had not spread rumours among the workforce that the Appellant would use his race to secure the departure of another employee) could have been fuller, the reasoning was adequate to support the finding, which had been open to the Tribunal on the evidence.
The appeal therefore failed.**THE HONOURABLE MR JUSTICE KERR**
- This is an appeal by leave of Her Honour Judge Eady QC against a Decision of the Bristol Employment Tribunal (Employment Judge Livesey, sitting with Mrs Burlow and Mr Hardy), which sat from 16-26 June 2014 to hear the Appellant's claims for race discrimination, victimisation and constructive unfair dismissal.
- The appeal is, essentially, brought on the ground that the Employment Tribunal's Decision contains a particular finding that was perverse and/or contrary to uncontradicted evidence, and which resulted in the claim for race discrimination, at least, failing in circumstances where it would and should have succeeded.
- The Employment Tribunal's Decision was signed on 27 June 2014, with commendable speed, the day after the Employment Tribunal had finished sitting in chambers to deliberate, and was sent to the parties on 30 June 2014. The Employment Tribunal dismissed all the claims.
- The background is this. The Appellant worked for the Respondent as a ground worker. He considers himself to be a black man. He is half of West Indian origin and half Irish. It is common ground that in early February 2012, the Appellant was shown an offensive and racist text message by another employee, Richard Jolliffe.
- The text message used a disparaging term to describe black people, derived from the time of the slave trade in the USA, and compared the current market for black football players with the former market for black slaves.
- It is therefore not surprising that the Appellant took offence. After a few days, he complained about the incident to Mr Jolliffe and then to a member of the Respondent's management, Mr Bates.
- Mr Jolliffe was taken to task by management and given a written warning for showing a colleague racially offensive material. He was told to apologise to the Appellant in person, but the Appellant did not want this. Mr Jolliffe wrote a letter of apology instead.
- On 27 March 2013, the Appellant sent Mr Carey, the Respondent's managing director, a written grievance containing five bullet points. He preceded these with a narrative saying that he had been pressured by management into accepting the apology, by means of a threat that the Respondent could lose valuable contracts if he took the matter further. He then set out five "examples" of recent "unpleasant incidents", which had been causing him "extreme stress and anxiety".
- The third of these was that he said he had been told on 13 February 2013 by a colleague, that another colleague, Arthur Thomas, "has been making slanderous remarks to anyone who will listen, saying I used 'the race card' in an attempt to get rid of Richard Jolliffe". He added: "my reputation now precedes me on whichever site I am sent to work". He added that he had done nothing wrong and never been disciplined himself.
- He also complained that he had been told to "keep your head down" and that working relationships had deteriorated since he had made his complaint against Mr Jolliffe.
- Mr Carey interviewed Mr Thomas on 16 April 2013. The latter denied having said the Appellant was trying to get Mr Jolliffe disciplined by playing the race card. He did, however, confirm that he had passed on what he had heard from another employee, Godwin Mbandjikera.
- This was a reference to the Appellant having allegedly said to Mr Mbandjikera in or about 2011, in the context of a redundancy exercise, something to the effect that Mr Mbandjikera would do well to play the race card, to improve his position in the redundancy exercise. This, Mr Thomas stated, he had heard from Mr Mbandjikera and admitted having repeated to others.
- On 2 May 2013, Mr Carey interviewed Ian Hancock, another employee. Mr Carey's note on this point reads: "Specific mention that Earl [the Appellant] will use the race card in future". The reference to "specific mention" appeared to refer back to the previous sentence, which indicated that the interviewee was referring to what Mr Thomas had said.
- It is common ground that the Respondent then appointed an HR consultant, Cathy Hipkiss, to investigate and report on the Appellant's grievance, which by this time had been extended to embrace a complaint against Mr Carey about the way in which he had handled the earlier grievance of 27 March 2013.
- The Appellant became unhappy about this when he learned that Mrs Hipkiss had been sent what was described as a 67 page dossier. Having read it, he wrote a letter of resignation on 13 May 2013, complaining that it contained untruths and unfair speculation. He said that there had been a total breakdown of trust and confidence, and that he would be bringing a Tribunal claim.
- He then brought his claim in June 2013, saying he had been suffering "ongoing acts of racial discrimination and victimisation since February 2012 when I was shown a racist text …"; and that he had been "the victim of racial slander for nearly eighteen months … by a long-standing employee", a reference to Mr Thomas, who had been "protected by the managing director".
- The Appellant then referred to the "five in total" incidents in his grievance letter of 27 March 2013, "among other incidents"; and complained about the "67 page dossier filled with lies, misquotes, mud-slinging and speculation …". He said in effect that the perpetrator of the wrongdoing was being protected while he, the innocent party, was being blamed, and thus had been forced to resign.
- Undaunted, Mrs Hipkiss continued her investigation which was then ongoing. On 28 June 2013, she interviewed Mr Hancock, who said that he recalled an occasion "probably in Spring 2013" when Mr Thomas had talked about the Appellant saying "did you hear about Earl [the Appellant ] - I will stand up for Richard Jolliffe if he uses the race card".
- Mrs Hipkiss noted that while Mr Hancock attributed this remark to "the first grievance", which appears to have been the February 2012 complaint against Mr Jolliffe, she, Mrs Hipkiss, thought it more likely it referred to "the second grievance", i.e. the one brought in March 2013.
- The same day, she interviewed Mr Thomas. Her note records that he told her he had spoken to Mr Hancock on one occasion in spring 2013 and had been told by Mr Hancock that the Appellant "was after £90k and following the grievance nobody wanted to work with him"; that Mr Hancock had said "he thought it was to do with race".
- Mrs Hipkiss's note then attributes the following to Mr Thomas, in her words: "[h]e did confirm that he may have said 'I will stand up for Richard Jolliffe if he uses the race card'". Her note does not make clear whether she is attributing to Mr Thomas an admission of having said that at the time of the complaint against Mr Jolliffe in 2012, or later, in 2013.
- Mrs Hipkiss did not give evidence but her report was before the Employment Tribunal. She completed it on 1 July 2013 (though it was not signed until later). She did not find that there had been any discrimination against the Appellant on the ground of his race. As for what Mr Thomas had or had not said, she attributed to him a remark in 2012 "to the effect that he would stand up for Richard Jolliffe if 'the race card' was used against him".
- Mrs Hipkiss also painted a picture of the Appellant being very conscious of race matters - for example, speaking to Mr Mbandjikera about comparing Jamaicans with Africans (conclusions, paragraph 1) - and of work colleagues being wary of interacting with him and finding him difficult to work with as he was often aggressive and would then complain that he was the victim (findings, paragraph 4).
- In July 2013, the Respondent filed a notice of appearance denying the claims and saying that the Appellant's grievances had been dealt with properly and that he had not been discriminated against or constructively dismissed.
- On 8 August 2013, the Appellant gave detailed answers to a request for particulars from the Respondent. So far as material now, he answered the question: "to whom the slander has been uttered" by saying it was uttered by Mr Thomas to Mr Hancock and to two other employees, Richard Williams and Nicky Vye.
- In answer to the question what was said, the Appellant set out a lot of detail, but the gist was set out succinctly in three bullet points:
• That I advised Godwin [Mbandjikera] to use the race card to avoid redundancy
• That I used the race card to get rid of Richard Jolliffe
• That I will use my race in the future.
- There were two further rounds of questions, answers and comments but I need not go into them. It remained the Appellant's case that he had been victimised by Mr Thomas who had then been protected by the Respondent and that this amounted to race discrimination and constructive unfair dismissal.
- Indeed, in subsequent written comments he said that Mr Carey's notes had been prepared to "assassinate my character" and complained that this "file of lies" had been allowed to be sent to Mrs Hipkiss, who was determining his grievance against Mr Carey.
- There were then difficulties in agreeing a list of issues. The Appellant was not represented; the Respondent was represented by its solicitor. The matter came before Employment Judge Parkin on 20 December 2013 for directions. It was the fourth case management hearing. The Judge ordered that a "list of issues" attached to this order would constitute the issues "to be determined at the final hearing".
- He recorded in his Reasons that:
"although the claimant did not rely upon the original 'racist text' shown him by a colleague employee as an act of unlawful discrimination, he contended that it was what prompted him to make a protected act complaining of racist behaviour by the colleague to his employer in particular the Managing Director Mr Carey."
- The Judge went on to record in his Reasons:
"His case is that the way the respondent dealt with that case was the beginning of a course of less favourable treatment on grounds of his West Indian heritage or racial origins and because he made his protected act which continued through to his eventual resignation. He cites 5 specific incidents, identified in his grievance letter of 27 March 2013."
- The "List of Issues" attached to this order commenced with a narrative in line with the above, summarised (in abbreviated form) the five bullet points set out in the 27 March 2013 grievance letter, and then recorded (among other things) that the third issue was:
"[w]hether any of the acts summarised above set out in the grievance letter dated 27 March 2013 occurred as alleged by the claimant."
- As summarised earlier in the narrative part of the "List of Issues", the Judge recorded that the third of those alleged acts was:
"[r]acial/racist slandering of him to others by Arthur Thomas. The claimant contends that this behaviour by Arthur Thomas, behind the claimant's back, was known to and condoned by the respondent's management who protected Arthur Thomas."
- That order and attached list of issues was sent to the parties on 16 January 2014. The Respondent then amended its notice of appearance specifically to respond to the formulation of the issues by the Employment Judge. The amended response included:
"It is denied that Mr Thomas' actions amount to racial/racist slander …"
- The Respondent relied on a witness statement from Mr Thomas dated 16 February 2014. It included an admission in relation to the 2012 incident involving the racist text message, that while he did not have a detailed recollection:
"I … think I would have said something like I would back Richard [Jolliffe] if the 'race card' was used against him because I had seen what had happened, there was nothing to it."
- In the next paragraph, he dealt with a conversation in the spring of 2013, about a year later, and said:
"… He [Mr Hancock] told me that Earl [the appellant] was making some sort of complaint or claim and wanted a lot of money. I think he said £90,000, but I am not sure. He was vague about the claim and I am not sure whether he said or whether I assumed that it related to Richard Jolliffe. I would have said something along the lines that if he was doing this I would stand up for Richard Jolliffe. Later that day I was talking about my conversation with Ian [Hancock] to others on site. I can't recall who was there although I think that Nick Vye … was present. I would have relayed the gossip from Ian. This prompted my memory of what Godwin [Mbandjikera] had told me when he was made redundant and I did say something along the lines that when Godwin had been made redundant Earl suggested he use the race card."
- Mr Vye's evidence of the latter conversation was set out in a witness statement dated 21 March 2014, but did not mention any allusion by Mr Thomas to Mr Jolliffe during the conversation.
- Those, then, were the battle lines that were drawn when the matter came before the Employment Tribunal at the Full Hearing.
- The Appellant represented himself before the Employment Tribunal. The Tribunal noted in its Decision that there had been a regrettable lack of harmony between him and the Respondent's solicitor, such that at the start of the hearing they had, according to the Employment Tribunal, "the smoke of their interlocutory battles still in their eyes".
- Seventeen witnesses gave oral evidence, including the Appellant, Mr Thomas, Mr Carey, Mr Vye and Mr Hancock.
- The Employment Tribunal's Decision ran to some 22 pages. The Tribunal commented briefly on the credibility of the Appellant and Mr Carey (paragraphs 5.4 and 5.5), finding that the Appellant, while genuine and passionate in his perceptions of the events, was unwilling to see any interpretation of events other than a deliberate malicious act against him; while Mr Carey was found to be a credible and calm witness.
- After dealing with the background and the events of February 2012 involving the racist text message, the Employment Tribunal went on to deal with events from 20 February 2013 onwards, and said this at paragraphs 5.40-5.47 (with the italics in the original):
"5.40. On 20 February , the Claimant attended a training course …
5.41. Whilst on the training course, the Claimant alleged that he was informed by Richard Williams, a fellow employee, that another employee, Mr Thomas, had been alleging that he had tried to use 'the race card' in an attempt to 'get rid of Mr Jolliffe' [sic] back in 2012. He took exception to such a suggestion and regarded the remarks as 'slanderous' (paragraph 14 (iii) of his statement).
5.42. Mr Thomas gave evidence before the Tribunal. He was not an impressive witness. He caused particular offence to the Claimant during the hearing when he suggested he had heard 'them' (meaning 'other coloured people') use the word 'nigger'. His choice of language was very poor indeed. He did later apologise.
5.43. Mr Thomas told us that, when he had heard that the Claimant had complained to management about Mr Jolliffe having shown him the text, he told Mr Williams that he was prepared to back Mr Jolliffe if the Claimant had 'used the race card', by which he meant issued a claim, but that had been back in 2012 and had been because he had not thought that the Claimant had been upset by the text, on the strength of his reaction to it.
5.44. In relation to the comments attributed to him in 2013, Mr Thomas' evidence (and that of Mr Vye) was that the only matter discussed concerned advice that the Claimant had allegedly given to Mr Mbandjikera in 2011 regarding his potential redundancy; that he would have been in a better position if he had 'played the race card'.
5.45. The Claimant relied upon the evidence of Mr Edwards and Mr Hancock but neither of them had provided statements which contained a report of what Mr Thomas was alleged to have said about the Claimant. Further, when questioned, their evidence weakened and they both accepted that all they could say was what Mr Williams had told them.
5.46. We found that this was a difficult factual issue to unravel. There was a lot of gossip within the workforce and it was difficult to attribute specific statements to specific people at specific moments. We concluded that Mr Thomas may well have referred to the Claimant having encouraged Mr Mbandjikera to play 'the race card' in an attempt to improve his chances in the redundancy selection exercise in 2011. That was the evidence of Mr Vye (paragraph 3), and Mr Williams' and Mr Thomas' accounts to Mr Carey during his investigation (see  & ). Mr Mbandjikera had told Mrs Hipkiss that the Claimant had not said that to him, during her subsequent independent investigation  but, during his evidence before the Tribunal, it was clear that he really could not remember. Mr Edwards and Mr Hancock could not help was [sic] on that issue either.
5.47. In relation to the specific complaint made by the Claimant, that he was told in February that Mr Thomas had been spreading rumours that he would use 'the race card' to get rid of Mr Jolliffe, whilst we accepted that that might have been what Mr Williams had told him Mr Thomas had said, we could not accept that that was what Mr Thomas had in fact the [sic] said. The phrase 'race card' was one use in conjunction with Mr Mbandjikera and, whilst Mr Thomas may have expressed some support for Mr Jolliffe back in February 2012, the evidence did not support the contention that the phrase had been used in conjunction with Mr Jolliffe in 2013."
- The Employment Tribunal then went on to deal with the rest of the facts, culminating in his resignation and Mrs Hipkiss' report, and then with the relevant law, before applying it to the facts.
- In relation to "direct discrimination" and "victimisation", the Employment Tribunal said this at paragraph 6.13, in material part:
6.13. The third issue concerned the 5 point grievance itself:
6.13.3. If we had accepted that Mr Thomas had spread rumours amongst the workforce that the Claimant had used his race (or, to use the actual phrase, had 'played the race card') to get rid of Mr Jolliffe, then it is likely that we would have found that he had suffered a detriment within the meaning of s.13 and/or s.27 of the Act. That, however, was not what had occurred in our view;
If Mr Thomas had said anything, he had merely repeated the advice that the Claimant had reportedly given to Mr Mbandjikera; to 'play the race card' to improve his position during a redundancy exercise. Even that type sort [sic] of gossip and discussion should not have taken place, our findings did not support the conclusion that there had been direct discrimination and/or victimisation.
The Claimant's advice concerned Mr Mbandjikera's race, not his own, which was the issue in the case. Further, we could not see how he would have suffered a detriment on the grounds of his race if Mr Thomas was doing no more than quoting his own previous comments. The same logic applied to the claim of victimisation. If this advice had been given by a hypothetical white comparator and/or someone who had not raised a previous race complaint, we could not see that Mr Thomas would have been any less likely to have gossiped about it, as had been reported;"
- After considering the other allegations, the Employment Tribunal said this at paragraph 6.17:
"Having examined each allegation individually, we stood back and applied 'the reasons why' test to the events that had occurred. We were entirely satisfied that the Claimant's complaints had no foundation in his race or his complaint against Mr Jolliffe a year earlier."
- They therefore dismissed the complaints of race discrimination and victimisation and went on to dismiss the claim for constructive dismissal, saying there had been no repudiatory breach of the contract of employment.
- The Employment Tribunal concluded that this was a "sad case" in that the Appellant had "become so certain that what had appeared to us to have been largely innocuous and trivial events, had been malicious acts of discrimination".
- Mr Edwards appeared for the Appellant in this appeal, through the Free Representation Unit. I was very grateful for his helpful submissions. He made the following main points:
(1) He said that the Employment Tribunal had acted perversely in exonerating Mr Thomas from spreading rumours to the effect that the Appellant had played the "race card" in order to get rid of Mr Jolliffe.
(2) He said that the Employment Tribunal had itself recognised that Mr Thomas had given evidence at paragraph 5.43 that in 2012 he had told Mr Williams "that he was prepared to back Mr Jolliffe if the Claimant had used the 'race card'".
(3) He added that the Employment Tribunal had, in the next paragraph, 5.44, recorded the evidence of Messrs Thomas and Vye that in 2013 Mr Thomas had attributed to the Appellant advice given by him to Mr Mbandjikera in 2011 that the latter should play the "race card".
(4) Mr Edwards submitted that in those circumstances it was perverse of the Employment Tribunal to accept at paragraph 6.13.3 that if Mr Thomas said anything, "he had merely repeated the advice that the [Appellant] had reportedly given to Mr Mbandjikera to 'play the race card' to improve his position during a redundancy exercise".
(5) Mr Edwards submitted that the Employment Tribunal's findings in this regard were such that "an overwhelming case is made that the employment tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached" (per Mummery LJ in Yeboah v Crofton  IRLR 634, at paragraph 93).
(6) Next, Mr Edwards submitted that the Employment Tribunal's finding that Mr Thomas had not spread rumours to the effect that the Appellant had played the race card to get rid of Mr Jolliffe, was founded on the Employment Tribunal "misunderstanding the evidence, leading it to make a crucial finding of fact unsupported by evidence or contrary to uncontradicted evidence" (per Mummery LJ in the same case, at paragraph 95).
(7) Mr Edwards' contention was that if one looks at the evidence the Tribunal itself recorded as coming from Mr Thomas, and at his written witness statement, there is no contradiction by Mr Thomas of the proposition that he had spread rumours to the effect that the Appellant had played the race card to get rid of Mr Jolliffe.
(8) Mr Edwards submitted that Mr Thomas had himself admitted as much, both in the oral evidence he gave to the Employment Tribunal, recorded in its Decision at paragraph 5.43, and in his written witness statement in which he had accepted having mentioned the Richard Jolliffe issue in a conversation in spring 2013, not just the previous year.
(9) On the last point, Mr Edwards also points to Mrs Hipkiss' note of her interview with Mr Thomas, to similar effect, and her interview with Mr Hancock, corroborating the admission that Mr Thomas had told him, Mr Hancock, probably in spring 2013, that he, Mr Thomas, would stand up for Mr Jolliffe if the Appellant uses the race card.
(10) Mr Edwards emphasised that the finding was crucial because the Tribunal stated at paragraph 6.13.3 that it would have been likely to have found the necessary "detriment" for the purposes of race discrimination and victimisation if it had found that Mr Thomas had spread rumours amongst the workforce to the effect that the Appellant had played the race card to get rid of Mr Jolliffe.
(11) The Appellant submitted, further, that it was not permissible to regard Mr Thomas's expressed intention to support Mr Jolliffe as having been conditional on the Appellant bringing an Employment Tribunal claim; no such claim had been in prospect in 2012 when the Appellant had complained against Mr Jolliffe.
(12) Finally, Mr Edwards asked for permission to add a further ground of appeal on a point which, he accepted, was not taken before the Employment Tribunal: that the spreading by Mr Thomas of the rumours already mentioned were an act of victimisation because they constituted a detriment and were done in response to the Appellant's complaint against Mr Jolliffe, which was a protected act.
(13) He referred me to Secretary of State for Health v Rance  IRLR 665, in the judgment of His Honour Judge McMullen QC at paragraph 50, and submitted that the Appeal Tribunal had all the necessary material to decide the point (see paragraph 50(6)(b)); that it was an obvious knock-out point (paragraph 50(6)(e)); and that the issue was a discrete one of pure law, requiring no further factual enquiry (paragraph 50(6)(f)).
- The Respondent instructed Mr Choudhury QC to resist the appeal. He too made cogent arguments for which I am grateful. His main submissions were to the following effect:
(1) Mr Thomas had only ever admitted to an intention to support Mr Jolliffe in the event that the Appellant should play the "race card" against Mr Jolliffe. The relevant issue in the list of issues was whether Mr Thomas had said that, and whether he had done so in 2013, not in 2012.
(2) To play the race card is to engage in reprehensible conduct because it implies a cynical intention to use one's race against another person in a way that is unfair to that other person and unjustified.
(3) Mr Choudhury submitted that Mr Thomas had never alleged against the Appellant that the latter had actually played the "race card" against Mr Jolliffe, i.e. that the Appellant had made unjustified and wrong allegations based on race against Mr Jolliffe.
(4) The only occasion, said Mr Choudhury, when Mr Thomas had clearly admitted having said such a thing was in 2012, when the Appellant had made his original complaint against Mr Jolliffe. Even then, Mr Thomas' admission was limited to having said he would stand up for Mr Jolliffe if the Appellant should play the race card against Mr Jolliffe; not that the Appellant had actually done so.
(5) The evidence was that in the spring of 2013, Mr Thomas admitted to having conversed with others about the Appellant having played the race card, but that related to the redundancy exercise in 2011, in which Mr Thomas attributed to the Appellant advice he said the Appellant had given to Mr Mbandjikera that he, Mr Mbandjikera, should play the race card to improve his position in the redundancy exercise.
(6) The above analysis is supported by the way in which the Employment Tribunal expressed its findings at paragraph 5.43, which included deliberately italicising the word "if" to emphasise that Mr Thomas' intention to back Mr Jolliffe was conditional on the race card being played by the Appellant; he was therefore not saying that the Appellant had already played it.
(7) Similarly, the Employment Tribunal's finding in the last part of paragraph 6.13.3 (the first sub-paragraph within it) referred to the contention that, as stated earlier in the same paragraph, "Mr Thomas had spread rumours amongst the workforce that the Claimant had used his race … to get rid of Mr Jolliffe", and the last part stated unequivocally that he had not done so: "[t]hat, however, was not what had occurred in our view".
(8) The Employment Tribunal plainly regarded Mr Thomas as contemplating the bringing of a Tribunal claim as the instrument whereby he might play the race card: in paragraph, 5.43, the Employment Tribunal explained that Mr Thomas had told the Employment Tribunal that by playing the race card, "he meant issued a claim".
(9) The Employment Tribunal's findings were considered and unassailable, even though they could have been more clearly drafted. They were not perverse. The perversity threshold is high, and nowhere near crossed. The Appellant had failed to persuade the Tribunal that he had suffered a detriment; his witnesses had weakened under questioning and did not give strong support to his case.
(10) The Appeal Tribunal should refuse permission to add the new point. It had not been taken below and would add a further factual dimension because it would require the Tribunal to examine whether the Appellant had in fact played the "race card" against Mr Jolliffe, i.e. brought unjustified allegations of race discrimination against him.
- I turn to my reasoning and conclusions.
- I start from the proposition that the Appeal Tribunal is not a fact-finding Tribunal and may only interfere with a decision of an Employment Tribunal if it has not been properly and lawfully reached. An appeal may only succeed on a point of law. Where the allegation is one of perversity, or making a finding lacking any evidential support at all, the threshold is a high one.
- I remind myself that the Appeal Tribunal is always slow to find that an Employment Tribunal has made a finding that no reasonable Tribunal could have reached, or that its finding on a particular point of fact is unsupported by any evidence or that such evidence as there is, all points the other way.
- I am also conscious that the Appeal Tribunal should not expect a Tribunal's Written Decision to be a model of expert legal draughtsmanship, should not be over-critical of the manner in which the Tribunal expresses itself and should approach the meaning of what the Tribunal has said in a common sense way.
- In the present case, the Employment Tribunal delivered its Written Decision with commendable speed which, I infer, may well explain its rough-hewn quality. To make sense of it, Mr Choudhury in his written submissions was obliged to interpolate some missing words.
- The findings in paragraphs 5.43 through to 5.47 are not expressed with perfect clarity, but if you read them several times over, are comprehensible. The conclusion said to flow from them, taken together with the findings themselves, at paragraph 6.13.3 (particularly in the second part of the sub-paragraph), is to the following effect:
(1) It would have been a "detriment" to the Appellant if Mr Thomas had spread rumours among the workforce that he, the Appellant, had used his race unjustly to get rid of Mr Jolliffe.
(2) Mr Thomas did not do so. He had said in 2012 that he would support Mr Jolliffe if the Appellant were to do so by bringing a Tribunal claim, but the Appellant did not at that stage bring a Tribunal claim.
(3) What Mr Thomas said in 2013 on the subject of playing the race card related to what the Appellant had allegedly to said to Mr Mbandjikera in 2011, and not to Mr Jolliffe at all.
(4) "Even [though] that type … of gossip and discussion should not have taken place, our findings did not support the conclusion that there had been direct discrimination and/or victimisation."
- The last quoted words are the Employment Tribunal's, apart from what appears in square brackets.
- The question, then, is whether the findings of fact on which that conclusion was founded, were open to the Employment Tribunal. If they were, then the conclusion drawn from those findings was clearly open to the Employment Tribunal. But as I have said, Mr Edwards submits that its findings of fact were perverse and not open to the Tribunal.
- I have carefully considered the rival contentions. I can understand the Appellant's concerns about the Employment Tribunal's reasoning. The Tribunal's starting point in assessing Mr Thomas's evidence is that he was "not an impressive witness" (paragraph 5.42).
- At paragraph 5.43, the Employment Tribunal starts with the words "Mr Thomas told us …". There is then a narrative of what, it appears, Mr Thomas (the unimpressive witness) told the Tribunal when giving his oral evidence.
- The narrative then attributes to Mr Thomas in paragraph 5.43 the following points of substance:
(1) that it was in 2012 that Mr Thomas had said he was prepared to back Mr Jolliffe;
(2) that he was ready to do so if (emphasis in the original) the Appellant used the race card against Mr Jolliffe;
(3) that by using the race card, he meant issuing a claim, presumably an Employment Tribunal claim (though the Employment Tribunal does not say so);
(4) that his explanation for what he had said in 2012 was that he did not think the Appellant was genuinely upset by the text message.
- Thus far, though not expressed with complete clarity, the points of fact found by the Tribunal were open to them. None of those findings are untenable on the evidence, though it would have been better if the Tribunal had explained how equating a "claim" with an Employment Tribunal claim could be squared with the reference to a "complaint or claim" from the Appellant, alluded to by Mr Thomas in his witness statement.
- Next, the Employment Tribunal addressed itself in paragraph 5.44 to the comments attributed to Mr Thomas in 2013. The Tribunal then recounted what "Mr Thomas' evidence (and that of Mr Vye) was" in relation to those comments.
- The narrative in the rest of paragraph 5.44 includes the following factual points:
(1) that the only matter discussed in 2013 during the conversations in question, was advice the Appellant had allegedly given Mr Mbandjikera;
(2) that the advice allegedly given concerned the wisdom of playing the "race card";
(3) that it was the Appellant who had advised Mr Mbandjikera to play that card; and
(4) that this occurred in the context of a redundancy exercise in 2011.
- The second, third and fourth of those matters were open to the Employment Tribunal to find as facts.
- The first is more difficult. Mr Thomas in his written witness statement had said at paragraph 5 that his conversation with Mr Hancock in spring 2013 had included reference to the Appellant "making some sort of complaint or claim"; and that Mr Thomas "would have said something along the lines that if he was doing this I would stand up for Richard Jolliffe".
- On the face of the witness statement, that was an admission that Mr Thomas had alluded in 2013, not just in 2012, to the playing of a race card by the Appellant in connection with the Jolliffe incident.
- The evidence of Mr Vye, also mentioned in paragraph 5.44 of the Employment Tribunal's Decision, does not assist on this point, since on the evidence of Mr Thomas and Mr Vye, the latter was not present during the conversation with Mr Hancock just mentioned.
- However, Mr Thomas's witness statement does not include any admission that he attributed to the Appellant, either in 2012 or 2013, the sin of having already played the race card against Mr Jolliffe.
- In addition, the Tribunal's Written Decision includes some indication in paragraphs 5.43 and 5.44 that the Tribunal listened to oral explanations from Mr Thomas, which may not necessarily have tallied exactly with what he said in his witness statement.
- It is permissible for a Tribunal such as this to accept evidence from a witness which departs from that given in a statement signed by the witness; though it is highly desirable, and sometimes essential, for the Tribunal to explain why it accepts the oral evidence despite the inconsistency.
- There is some inconsistency between the Tribunal's conclusion in paragraph 6.13.3 that Mr Thomas's remarks were confined to the case of Mr Mbandjikera, and Mr Thomas's admission that, in 2013 in his conversation with Mr Hancock, they were not so confined. The Tribunal does not address or explain that inconsistency in its Decision.
- Nevertheless, I am prepared to accept that the Employment Tribunal was entitled to find that Mr Thomas did not mention the Jolliffe incident in his spring 2013 conversation with Mr Hancock, despite the suggestion in his own witness statement that he did.
- I have come to the conclusion that the inconsistency is not fundamental and such as to taint the Tribunal's conclusion with perversity, for two reasons.
- The first is because (as already noted) the Tribunal could properly accept, and may well have accepted, oral evidence from Mr Thomas even if it departed from his witness statement.
- The second and more important reason is that the kernel of the reasoning supporting the Tribunal's conclusion is that Mr Thomas's remarks lacked the "sting" of accusing the Appellant of using his race against Mr Jolliffe in a claim brought without justification.
- That reasoning is not inconsistent with the admission in Mr Thomas's witness statement that he discussed the Jolliffe case with Mr Hancock in 2013 as well as in 2012. He did not go on to admit that he had accused the Appellant, either in 2012 or 2013, of actually using his race against Mr Jolliffe in support of an unjustified claim.
- The addition of italics to the word "if" in paragraph 43 directly supports this analysis, according to which, what Mr Thomas said about the Jolliffe case is more important than when (whether in 2013 as well as 2012) he said it.
- For those reasons, I have decided that I must reject the submissions of Mr Edwards, skilfully though they were deployed, in support of his argument that the findings and conclusion of the Tribunal were perverse or not open to it on the evidence. I do think, though, that the Tribunal would have done well to devote more time than it did to explaining its reasoning in the Decision.
- For completeness, I add that I unhesitatingly refuse permission to the Appellant to bring the proposed new ground of appeal, so as to argue that Mr Thomas subjected the Appellant to a detriment in response to a protected act committed by the Appellant, namely the making of his complaint against Mr Jolliffe in 2012.
- That new point would plainly require factual as well as legal investigation; it is not a "knock-out" point, and was not taken before the Tribunal.
- Finally, I would add that I considered whether I should invite the Tribunal to clarify and supplement its Reasons, using the "Burns-Barke" procedure (see Barke v SEETEC Business Technology Centre Ltd  IRLR 633).
- I decided not to do so, first, because neither party invited me to do so; secondly, because it would have caused delay and increased cost; and thirdly (and most importantly) because, albeit after considerable reflection, and with the aid of the parties' helpful written and oral submissions, I have felt able to determine the appeal without further assistance from the Tribunal.
- For all those reasons, the appeal will be dismissed.
Published: 13/11/2015 10:13