APPEARANCES
| For the Appellant |
MR ADRIAN LYNCH QC
MS IJEOMA OMAMBALA
(of Counsel)
Instructed by:
Messrs DLA Solicitors
3 Noble Street
London EC2V
|
| For the Respondent |
MS MARIAH BAMIEH
(Representative) |
SUMMARY
Race Discrimination
Erroneous construction by Employment Tribunal in law of Respondent's disciplinary procedures led to the conclusion that the Respondent had acted in deliberate breach of its own procedure in suspending the Applicant, and thereby foreclosed the availability of an explanation excluding racial grounds. Finding of race discrimination set aside and remitted to different Tribunal for rehearing.
THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)
- This has been the hearing of an appeal by the Respondent, the Crown Prosecution Service, from the unanimous decision of an Employment Tribunal at Leeds, after a hearing lasting nine days in February 2003 and March 2004, in a judgment handed down on 11 June 2004, that the Respondent discriminated against the Claimant, Miss Aziz, on racial grounds.
- The Claimant, who is a solicitor, was, and still is, employed by the Respondent as a Prosecutor. She joined the Respondent in February 1992, and has been based in Bradford since January 1995. She is of Asian origin with her family originating in Pakistan and is of the Moslem faith. She was represented below by Counsel; and very ably represented before us by a solicitor previously with the Respondent, Miss Bamieh, who was in fact a witness below. The Respondent was represented by Miss Omambala of Counsel below, who is now led before us by Mr Adrian Lynch QC.
- The Applicant made a number of allegations of race discrimination in the proceedings before the tribunal which in the event were not proceeded with; and there was a ground of appeal put forward by the Respondent based upon the alleged failure by the Employment Tribunal to make findings in relation to those other allegations by reference to Anya v University of Oxford [2001] IRLR 377 and other cases, but in the event that argument has not been pursued before us.
- The claim which was central to the Employment Tribunal's decision, and on which the Claimant succeeded, related to what occurred after an incident in the Bradford Magistrates Court on 25 September 2001, which materially for the consideration of the circumstances was two weeks after the Twin Towers disaster at the World Trade Centre. The Claimant attended at court that day. Security was tight at the Court and Bradford, of course, is well-known to be a multi-cultural area. On the Claimant's own case she acted somewhat unwisely. She describes her account of what occurred in one of her originating applications as follows, so far as is material:
"I cannot give full particulars of my complaint because I have not been provided with details of the allegations or evidence against me. I understand, from hearsay, that Mr Gill, [who we interpose was apparently employed by the Bradford Magistrates Court as a security officer] alleges that I refused to go through Security at Bradford Magistrates…and made remarks about the recent events in America which caused a disturbance in Court.
From my recollection I did not refuse to go through Security. Mr Gill initially made a remark about '… security risk '… to which I jokingly replied , 'I'm a friend of Bin Laden's…'. Mr Gill seemed to be extremely angry about this remark and questioned me as to whether I agreed with Bin Laden's actions - I said I did not but that I also did not agree with America's actions in a number of countries. By this time I had walked through Security and was carrying on the conversation with Mr Andrew Spencer, the Court Usher.
I did not see or hear any disturbance on the relevant day. As far as I am aware none of my colleagues at CPS, Defence, etc. were ever told of such a disturbance taking place…Usually, if such an event occurs, everybody tends to be aware of it whether they witnessed it or not.
If there was [a] disturbance then Mr Gill and Mr Spencer were just as much to blame as me if not more as Mr Gill started it all. Yet there is no complaint/allegation against any white member of staff/officer of the Court etc."
- The Applicant was, however, subsequently exonerated of gross misconduct by the inquiry which, in the circumstances relevant to this claim, the Respondent established, by a full report delivered eventually on 4 April 2002, by a Mr Budge. The conduct of the Respondent complained of successfully by the Applicant before the Employment Tribunal is what followed upon the receipt by the Respondent of a letter from a Ms Fiona Philpott dated 2 October 2001. Ms Philpott was the District Legal Director at the Bradford Magistrates' Court; and she wrote the letter on headed notepaper to Mr Cowgill, the Senior Crown Prosecutor in charge of the Bradford area. It read as follows:-
"I have heard from two members of staff that Halima Aziz has been making inappropriate remarks in court and at the security arch at the main entrance. The remarks have been insensitive and occasionally offensive, and refer to the recent events in America. Whilst I accept that every person has a right to their own views and respect for those views, I am concerned that the remarks, as reported, are discriminatory." [and then she refers to some of those remarks and continues] This particular remark caused the Security Officer some concern as it sparked off a disturbance between white and Asian youths who had overheard the remark.
I believe it is unnecessary to express such opinions in front of waiting defendants and court users where there is the potential for an inflammatory effect. I would be grateful if you would discuss this matter with Miss Aziz and assure that her behaviour on court premises is a little more circumspect."
- This letter was, it seems, received by the Respondent on 5 October, but not seen by Mr Cowgill until a day or two afterwards, and he then forwarded it to Mrs Ashton, the Acting Area Business Manager, on 9 October. Mrs Ashton discussed the contents with a Mr Clark, known as Personnel 2, at the Respondent's headquarters on 9 October. They agreed that three specific enquiries should be made by Mr Cowgill. First, the identity of the persons involved in the incident; secondly, whether those persons were prepared to co-operate in an investigation; and, thirdly, whether there was said to have been a public order offence apparently involved. The answers to these enquiries were obtained negatively so far as the last question is concerned. Mrs Ashton advised that, subject to confirmation from the Claimant that she was in fact present at the Bradford Magistrates Court on that day, there should be an investigation. Mr Franklin, the Chief Crown Prosecutor, who was away on 9 October, decided to suspend the Claimant pending investigation on 10 October. This was done face to face, whereas, as can be seen from the Respondent's disciplinary code, to which we will return, there is no specific provision in the code for a suspension interview. The Claimant did confirm to Mr Cowgill, in the course of a short discussion with him when he suspended her, that she had been present at the Magistrates Court. Her oral suspension by Mr Cowgill, which then took place, was followed, in circumstances plainly distressing to the Claimant, by her being escorted to collect her belongings and then out of the building.
- Mrs Ashton wrote a suspension letter to the Claimant on 10 October as follows, so far as material: It was headed up 'ALLEGED GROSS MISCONDUCT: SUSPENSION FROM DUTY PENDING COMPLETION OF ENQUIRY' and it read:
"1. As a result of remarks allegedly made by you at Bradford Magistrates' Court during week commencing 24 September 2001 in relation to the incident in America on the 11 September 2001 it has been decided to instigate a formal investigation. The alleged remarks have been reported to the CPS by the Bradford District Legal Director.
2. Given the serious nature of the alleged misconduct it has been decided that you should be suspended from duty with immediate effect and until further notice in accordance with … paragraphs 3.29-3.34 of the Personnel Management Manual [we have been calling this the Disciplinary Code]. This decision will be reviewed in four weeks' time with monthly reviews thereafter. Although suspension will be on full pay initially, the Department will review the level of pay regularly and may subsequently decide to reduce pay. However, pay will not be reduced until you have been given an opportunity to make representations.
…
4. Suspension is not intended as a disciplinary penalty, nor does it imply that any particular course of action will subsequently be adopted. No inferences, therefore, are to be drawn from its imposition. However, you should be aware that formal disciplinary action may be taken against you."
And a further copy of the Disciplinary Code was supplied by way of attachment to the letter.
- Mr Franklin wrote on 11 October a letter to Mr Seehra, the Director of Human Resources at the Respondent's HQ, explaining his decision to suspend, and in material part it reads as follows:
"3. Notwithstanding the matters which you urged me to consider, I remain convinced that the decision to suspend Halima was correct, and that the written complaint submitted by Fiona Philpot of the West Yorkshire Magistrates' Courts Service requires to be formally investigated.
4. The manner in which the investigation is to be conducted is, I understand, a matter for your Directorate, given that the suspension is based on there being a possible charge of gross misconduct. …
5. I have approached the question of the appropriateness of suspension on the basis of assessing the alleged misconduct at its highest. Do the allegations, as set out in Ms Philpot's letter, if fully proved, amount to gross misconduct?
6. I am firmly convinced that they do, for the following reasons:
- The remarks, allegedly made in the public foyer, were inflammatory and apparently caused a disturbance between white and Asian youths.
- These remarks need to be seen in the context of similar remarks, allegedly made soon after in a Courtroom.
- The remarks require to be seen in the context of the events of 11 September and the strength of public feeling that has been aroused.
- The alleged comments need also to be seen in the context of the recent riots in Bradford and the wider sensitivities of a city with a very large Pakistani community where there are known pre-existing tensions between the ethnic groups.
- The Director, the Attorney and the Service at large and equally the Public we serve rightly expect that Crown Prosecutors will conduct themselves in a way that upholds the reputation the Service has for fairness and independence.
- Complete confidence in the judgement and integrity of Crown Prosecutors in their role as Officers of the Court needs to be maintained at all time.
- Equally the Police and Public need to have full confidence in the way Crown Prosecutors exercise their judgement in the review and decision making functions.
- It is of crucial importance that consideration be given to how the media would react to allegations of this kind and, above all to the way in which the Service responded to them. The massive media criticism of a Government Department Press Officer, yesterday, illustrates this and her alleged misdemeanour needs to be set against the conduct alleged here.
- The protection of the Law Officers, the Director and the Service as a whole do of course need to be balanced with the interests of Halima but there appears to be no argument for saying that her position is assisted by working at a time when so sensitive an investigation is taking place. Equally there appears to be no evidence whatsoever that she will be prejudiced by suspension."
- The Applicant only remained suspended in the event for what has been described as two and a half working days. There were a number of representations made to Mr Franklin and discussions by him with senior officials, including, as we have seen, Mr Seehra, as a result of which on Sunday, 14 October, as is described by the Tribunal in paragraph 15.55 of the Judgment, Mr Franklin decided:
"that it was possible to protect the integrity of the enquiry, the reputation of CPS and the personal interests of Halima by lifting the suspension and transferring her temporarily to Wakefield."
and the suspension was lifted on Monday 15 October. In fact the Applicant never did go to Wakefield, because she was diagnosed on 19 October 2001 as suffering from depression, and she has never returned to work since.
- The Tribunal concluded that the suspension and the transfer both constituted unfavourable treatment of the Applicant on grounds of race and detriment. They also made certain other findings as to detriment, to which we shall return. The Tribunal formed very strong views as to the conduct of the Respondent and particularly of Mrs Ashton. They concluded that the Respondent was wrong to suspend; and, as set out in paragraph 36 of their decision, that there were very serious procedural breaches and that
"In the absence of any satisfactory explanation for all of these very serious procedural breaches there are a number of factors that suggest that racial considerations had a significant bearing on the respondent's conduct."
- Ms Bamieh for the Claimant submits that the Employment Tribunal has correctly approached the law and made findings of fact which cannot be challenged. First, they concluded that there was a prima facie case of unfavourable treatment on the grounds of race; secondly, the onus of proof then transferred to the Respondent, and the Tribunal concluded that the Respondent gave no explanation to oust racial grounds as the reason.
- Mr Lynch QC submits that there was a fundamental flaw in the Employment Tribunal's conclusion, by reference to its error in law with regard to its construction of the Disciplinary Code and the effect that that error in law had on its conclusion. The Employment Tribunal made the following findings:
(1) that before the decision to suspend the Respondent was obliged to carry out an investigation i.e. the Respondent was not entitled to accept the letter from Ms Philpott at face value: this was a requirement imposed by paragraph 3.3 of the Disciplinary Code, to which we will return: by not doing so, the Respondent was not simply acting unfairly or unreasonably, it breached its own procedure; Breach 1.
(2) that the Respondent breached its procedures by failing, before suspending, to give to the Claimant a copy of the letter of complaint, to give her any opportunity to make representations, and in not allowing any right of representation to her or the right to be accompanied. This again was not simply a finding of the Respondent acting unfairly or unreasonably but of the Respondent acting in breach of paragraph 3.4 of its own disciplinary procedure, to which we will refer; Breaches 2, 3 and 4.
The Employment Tribunal concluded in paragraph 37 of its Judgment:
"that the Respondent acted in serious breach of its own disciplinary code and wrongfully suspended the Applicant, wrongfully transferred her and wrongfully removed her from the rota and that its conduct in this regard was to a significant degree influenced by the Applicant's race and ethnic origins."
It further found in paragraph 36 of its judgment:
"Had a white lawyer been the subject of a similar complaint we infer that procedures would have been followed."
- Mr Lynch QC submits that the Tribunal was wholly wrong in law in this regard, and that by its finding that the Respondent did not follow its own procedures, and acted in serious breach of its own Disciplinary Code, that it thereby foreclosed the Respondent's defence. When the onus transferred to the Respondent, it was precluded from putting forward the defence that in fact it was acting, or believed itself to be acting, in accordance with its own procedures.
- Before we can assess that argument we must recite the relevant passages of the Code. Under the heading 'Principles' there are, among others, the following two paragraphs: It appears that the Tribunal helpfully caused what were otherwise bullet points in the various paragraphs to be lettered as subparagraphs, and we gratefully adopt that lettering:
"3.3 Maintaining appropriate standards of conduct amongst their staff is the responsibility of line managers. If, in doing so, they decide to take disciplinary action as set out in this chapter they must
a. apply the procedures equitably irrespective of the level, sex, race, marital status, sexual orientation, colour, religion, ethnic or national origin, age, or disability of the member of staff concerned;
b. make every reasonable attempt in the circumstances to establish the facts of the alleged misconduct before any disciplinary action is taken;
c. consider whether any previous disciplinary matter is relevant (see paragraphs 3.60 and 3.61);
d. take full account of the background, including any relevant personal, social or domestic circumstances. If domestic problems are disclosed, it is normally appropriate to advise the member of staff to contact their Counsellor and if ill-health is a significant factor, advice should be sought from the Department's occupational health advisor.
e. act promptly at all stages.
3.4 Any member of staff subject to formal disciplinary action has the right
a. to be advised of the nature of the complaint against them without undue delay;
b. to be advised as soon as the decision has been taken not to proceed with disciplinary procedures;
c. for the case to be dealt with, as far as circumstances permit, in confidence;
d. in normal circumstances, to be given a copy of any material supporting a disciplinary charge (including any produced as a result of a formal investigation);
e. to be made aware of the disciplinary procedures that will be followed and the disciplinary penalties which may be imposed;
f. to be given the opportunity to state their case and comment on the evidence before decisions are reached.
g. to receive advice and representations throughout from a trade union representative or a colleague of their choice.
h. to receive a full explanation for any penalty imposed.
i. not to be dismissed for a first act of misconduct unless it constitutes gross misconduct.
j. to appeal against the outcome and any penalty imposed."
- In paragraphs 3.6 through 3.11 the various types of possible misconduct are discussed. The Respondent concluded that if the matters in the October letter were made out then there was gross misconduct. The relevant paragraphs that follow, relevant to dealing with serious or gross misconduct, are as follows: (Once again we adopt the lettering instead of the bullets.)
3.27 In the case of what appears to be serious or gross misconduct the line manager will usually take the following action.
a. make preliminary management enquiries, if necessary (for example where a fraud may have been committed), to establish whether misconduct has taken place and whether a formal investigation should be instigated. These enquiries would not normally involve interviewing any individual suspected of involvement;
b. where these enquiries or other information gives rise to suspicions of serious or gross misconduct, inform the ABM/Personnel 2…
c. all cases which appear to constitute gross misconduct must be referred to Personnel 2 who retain the authority for dealing with such cases;
3.28 As soon as possible after the ABM/Personnel 2 has decided to initiate formal disciplinary action they will
a. instigate a formal investigation (see paragraphs 3.35 onwards). This may not be necessary in circumstances where the facts are already known, for example, where the case involves criminal proceedings or where an investigation has already taken place in accordance with the Equal Opportunities Complaints Procedure;
b. if sufficient evidence of misconduct is available, put a disciplinary charge to the member of staff (see paragraph 3.40 onwards).
- Under the heading 'Action Pending Completion of an Enquiry' there are the following paragraphs:
"3.29 Once a decision has been made to initiate formal disciplinary action, the ABM/Personnel 2 will consider whether it would be appropriate to arrange a transfer to other duties or suspend a member of staff from work whilst an investigation is taking place or until the outcome is decided. The decision to transfer or suspend may also be made at any time during the disciplinary process if considered appropriate. The decision to suspend staff rests with the ABM/Personnel 2 for HQ staff and should not be taken at a level below that of the disciplinary authority…
3.30 Suspension in these circumstances, as distinct from suspension as a disciplinary penalty, does not imply that any decision has been taken about the alleged misconduct. The key consideration in deciding whether the suspension is appropriate is usually whether the continued presence of the member of staff concerned would:
a. be contrary to the public or departmental interest;
b. prejudice any investigation e.g. where there is a possibility of someone destroying evidence;
c. have an adverse effect on the work of the office, e.g. where harassment of colleagues is alleged and may intensify once an investigation is started.
The alternative of a transfer to other duties should always be considered before suspension."
- Under the heading 'Formal Investigations' there then follows a number of paragraphs beginning with 3.35, which read as follows:
"Except in cases where the facts of the alleged misconduct are not in dispute … the ABM/Personnel 2 will instigate a formal investigation. The aim of this investigation will be to make every reasonable attempt to establish the facts.
Amongst the paragraphs which follow is paragraph 3.37:
"Staff carrying out formal investigations will usually:
a. collect statements from material witnesses;
b. Arrange an interview with the individual, advising them in advance in writing of the purpose of the interview…the nature and seriousness of the allegation and of their right to be accompanied by a trade union representative or colleague. They should also be provided with a copy of the Discipline chapter. A note need to be made of the interview and copied to the individual to give them a chance to comment;"
- Finally under the passage in the Code which is headed 'Putting Disciplinary Charges to the Individual' 3.40 provides as follows:
"If the Area Business Manager/Personnel2 decides to proceed with a formal disciplinary charge, as soon as possible thereafter the members of staff will be given a minute…which will specify the following:
a. details of the alleged misconduct;
b. whether the alleged misconduct, if proven, would be deemed serious or gross misconduct and the disciplinary penalties which may follow, including whether it may lead to dismissal;
c. a reminder that they may be assisted by a trade union representative or a colleague throughout the disciplinary procedures;
d. that they need not respond at this stage but will be given a full opportunity to do so in due course.
A copy of any material supporting the disciplinary charge, usually including any produced as a result of a formal investigation) … will also be attached."
- Mr Lynch QC submits that although the "Principles" paragraphs, in paragraphs 3.3 and 3.4, apply in general terms, the specific paragraphs govern the conduct of what occurred here. On the face of it that submission is accepted by the Tribunal in paragraph 15.42 when it says in its judgment as follows:
"Mrs Ashton chose to pursue a startlingly novel approach to the construction of the disciplinary code. Although the Tribunal did not take issue with Mrs Ashton's contention that the general principles set out in paragraphs 3.3 and 3.4 have to be read together with the specific provisions later in the document we had to part company with her on all her subsequent contentions."
- That was Mrs Ashton's explanation of the basis on which the Respondent had acted and of the basis of the Respondent's construction of the Disciplinary Code, but that was the construction upon which Mr Lynch addressed us as a matter of law. He points out amongst other things, the following:
- First, paragraph 3.27a provides that there be "usually" preliminary management enquiries to be made "if necessary" to establish whether misconduct has taken place and whether a formal investigation should be instigated. The subparagraph continues:
"These enquiries would not normally involve interviewing any individual suspected of involvement."
It is on the basis of those "preliminary management enquiries, if necessary" that the ABM, in this case Mrs Ashton, decides to initiate formal disciplinary action under paragraph 3.28, and then at that stage the Respondent will, if appropriate, instigate a formal investigation, in accordance with paragraphs 3.35 and following. At that stage a suspension under 3.29 becomes an option until the formal investigation has been completed and either does or does not lead on to the putting of disciplinary charges to the individual. Hence there is no substance in Breach 1, to which we have earlier referred. There is no obligation on the Respondent to carry out an investigation prior to the decision to initiate formal disciplinary action, and there is certainly no obligation at that stage to do anything other than make "preliminary management enquiries, if necessary".
- Secondly, he points out that sections 3.27 a, 3.28 a, 3.37 b and 3.40 a and b make it clear that there is no obligation to give the opportunity for the Claimant to make any kind of case or make representations prior to the decision to initiate formal disciplinary action which can trigger suspension: hence there is no substance in Breaches 2 and 3.
- Thirdly, he refers to paragraphs 3.21, 3.37b and 3.40c, all of which make it clear - 3.21 relating to minor misconduct, 3.37 b relating to formal investigations into serious or gross misconduct and 3.40 c relating to putting disciplinary charges to the individual, that the issue of representation or assistance or accompaniment by a trade union representative or a colleague does not arise at the stage of a decision to initiate formal disciplinary reaction with the concomitant option of suspension. He submits there is no substance in Breach 4.
- Mr Lynch QC thus establishes that on what he submits to be the correct construction of the rules in law it cannot be said that the Respondent acted in breach of the rules in any of the respects found by the Tribunal: Breaches 1, 2, 3 or 4. He submits that rule 3.3 b, c and, plainly, d, all relate to the later stage, after the disciplinary action has been initiated and, indeed, during and after the formal investigation which may lead to the imposition, after a charge, of a disciplinary penalty, and not to the stage prior to the decision simply to initiate formal disciplinary reaction. He further submits that rules 3.4 a, f and g, plainly, also apply to the investigatory stage and not to the period prior to a decision to initiate disciplinary action. He submits that this construction is plainly correct in law; and that in those circumstances there can be no conclusion that the Respondent has acted in breach of procedure, and that, at the very least, it ought to have been found by the Tribunal that Mrs Ashton and the other witnesses of the Respondent either were acting or. at any rate, reasonably believed themselves to be acting in accordance with the procedure.
- Against this background it is important to see both the conclusions and indeed the language used in expressing those conclusions by the Employment Tribunal. We have already referred to paragraph 15.42 of the judgment and what it describes as Mrs Ashton's 'startlingly novel approach to the construction of the disciplinary code'. At paragraph 15.44 the Tribunal stated:
"What is established is that Mrs Ashton ignored the essential requirements of the disciplinary code."
At paragraph 15.45 they stated as follows:
"Mrs Ashton admits that she did not carry out such an investigation other than to the limited extent of putting questions to Mr Cowgill in circumstances where further substantial enquiries were clearly called for. The argument that the code prevented such enquiries is total nonsense."
At paragraph 15.46 the Tribunal stated:
"This is a requirement that has to be satisfied before disciplinary action is decided upon (by reference to paragraph 3.3b). Accordingly the proposition that Mrs Ashton put to the Tribunal that this did not apply until after a disciplinary charge had been put pursuant to paragraph 3.40 is simply ludicrous. The respondent failed to discharge its duty to carry out appropriate enquiries."
At 15.47 the Tribunal stated as follows:
"at the suspension interview the applicant was subject to such disciplinary action and was therefore entitled to representation under the disciplinary code. Mrs Ashton told us that it was the specific instructions of Mr Clarke to deny the applicant representation. That action was clearly a gross breach of the procedure by removing from the applicant an essential protective. Furthermore, it is a very foolish employer who ignores its own procedures because very often these are as much for its own protection as for the protection of employees."
At 15.48 the Tribunal stated:
"The Tribunal found it very difficult to believe that an organisation such as the Crown Prosecution Service would operate its disciplinary code in a manner fundamentally contrary to its terms. These departures were not nuances of opinion or an interpretation of the text but the clearest possible breaches of the express terms of the code which deprive the Applicant of substantial rights and protections."
At paragraph 23 the Tribunal said this:
"One possibility was that the respondent's officials were incompetent and the treatment was the consequence of innocent mistakes. However, the Respondent made no such admissions. Another possibility, if Mrs Ashton's account was to be believed, is that as a matter of policy the respondent deliberately and consistently deprives its employees of their rights and protections under the disciplinary code."
In paragraph 29 of the Tribunal judgment it says as follows:
"In taking action against the applicant under the disciplinary code the respondent was in serious breach of its requirements at a number of crucial stages. The CPS is a public body but even more telling is its status as the organisation through which most criminal prosecutions are conducted by the State. The CPS is responsible to Ministers of the Crown, to the Law Officers. One would therefore image that such an organisation would be very careful to ensure that it strictly observed its contractual obligations to its employees."
The paragraph concluded as follows:
"The Tribunal therefore concludes that the Respondent acted in full knowledge that it was in material breach of its procedures."
- Finally in paragraph 37 it said, as we have already quoted "the Tribunal has concluded therefore that the Respondent acted in serious breach of its own disciplinary code."
- It is quite apparent that the Employment Tribunal was highly critical of the Respondent, but the crucial point is that in those passages in ever increasingly emphatic language the Tribunal concluded that the Respondent was acting in deliberate and knowing and self-evident and inexplicable breach of its own procedures.
- Ms Bamieh submits that it is clear that the Tribunal considered and concluded that the Respondent was acting unreasonably; and on the evidence before it that there were considerable matters to be criticised irrespective of the conclusion reached by the Tribunal, to which we have referred. One has only to look at paragraphs 15.37, 15.39, 15.41, 15.53, 15.56, 30, 31, and 34, although we, and indeed, those appearing before us, found it very difficult to understand that latter paragraph and paragraph 35 of the judgment of the Employment Tribunal so as to follow such criticisms. In her able submissions Ms Bamieh concentrated on six particular criticisms of the Respondent. First the Respondent's failure to keep any material records or notes. Secondly, what was described by the Tribunal effectively as a convenient memory loss on the part of Mr Cowgill. Thirdly, the fact that Mr Clarke was not called. Fourthly and specifically a criticism of the way in which the suspension interview was carried out. Fifthly the fact that the suspension was carried out far too hastily. Finally and sixthly, that, in the Tribunal's view, the conditions of paragraph 3.30 to justify a suspension were not on the facts established.
- But it was not here a finding by the Tribunal that the Respondent acted unreasonably or unfairly, nor was there a criticism, as there might well have been, of the somewhat ambiguous nature of the Code, which might well lead to differences about its construction, and to a hope and expectation that a public body such as the CPS would be more likely to follow a more reasonable approach towards its own Code than any other body. But that was not, as we have indicated, the basis of the Tribunal's conclusion. Had they simply concluded that the Respondent was acting unfairly or unreasonably, then, particularly in the light of the other findings made by the Tribunal, the onus may very well have passed to the Respondent to put forward its explanation.
- At that stage, the explanation that a Respondent in such a case is entitled to put forward includes far more than a justification that it was acting for the best in the best of all possible worlds, as is made clear and, indeed, emphasised in Law Society v Bahl [2004] IRLR 799, approving the full and well-known judgment at first instance of Elias J in [2003] IRLR 640. An explanation sufficient to oust a finding that unfavourable treatment was on racial grounds does not have to be an explanation that the employer acted creditably. The explanations can, and may, be that the employer acted unfairly or unreasonably or incompetently. But what occurred here, in our judgment, is that by virtue of what we are satisfied was its incorrect and inappropriate construction of the Disciplinary Code, and consequently its incorrect and inappropriate approach towards the conduct of the Respondent in relation to it, the Tribunal did indeed foreclose the possibility of such explanations being put forward. What it was looking for, and would never have been able to find, was an explanation as to why the Respondent deliberately, knowingly and inexplicably breached its own procedure. That would require a very different explanation, and given its absence it is not surprising that the Tribunal was left to look round for some other explanation and found no other than that it was on racial grounds.
- It may well be that another Tribunal which did not hamstring itself in the way that this Tribunal did but simply reached a conclusion as to fairness or reasonableness or otherwise, might have reached a different conclusion or might have reached the same conclusion. But following on from the conclusions to which we have referred, it is necessary to see, and to remind ourselves of the basis upon which in the end the Tribunal reached its decision. In paragraph 32 the Tribunal said this:
"Therefore the question is why did Mrs Ashton, Mr Cowgill and Mr Franklin decide to accept these allegations without further intervention?"
That is, we interpose, on the basis that they were all in breach of procedure, in the conclusion of the Tribunal, by not investigating the matter further or by accepting, as it was put, on face value the letter from Ms Philpott. This is not on the basis that a reasonable employer might have acted differently, but on the basis that the Respondent was in deliberate breach. The Tribunal concludes:
"The Tribunal's conclusion is that because of the race and ethnic origin of the Applicant the respondent's officials assumed that the allegations had substance and that is not an assumption that they would have reached in that way had the applicant been a white male prosecutor."
- Similarly at paragraph 33 the Tribunal stated:
"Mrs Ashton did not implement the disciplinary code (paragraph 3.27) which required her to "make preliminary enquiries … to establish whether misconduct had taken place" because she did not consider it necessary to do so. The Tribunal infer this is because she had already made her mind up because of the race and ethnic origins of the Applicant."
And further in the same paragraph and even more clearly:
"Had this initial step been carried out the lack of substance in the allegations would have been revealed and the applicant would have not have been suspended. Instead the respondent ignored its procedures to the serious detriment of the applicant."
At paragraph 36, which we have already quoted, the Tribunal said
"In the absence of any satisfactory explanations for all these very serious procedural breaches there are a number of factors which suggest that racial considerations had a significant bearing on the respondent's conduct."
Then finally again the passage which we have already recited:
"Had a white lawyer been the subject of a similar complaint we infer that procedures would have been followed."
- We are satisfied that the Tribunal erred in law in relation to its construction of the rules. In those circumstances, the Tribunal erred in law in its approach to the question as to whether the Respondent had satisfied the onus which passed to it. The Respondent may have been able to satisfy the onus, but the explanations which they would have put forward, all of which would have been founded upon the basis that they either were, or believed themselves to be, acting in accordance with the procedures, were explanations that were ruled out by the erroneous finding by the Tribunal.
- We have carefully considered Ms Bamieh's submissions that there was enough other material, and that there were enough other findings, in the Tribunal's decision to have enabled a Tribunal to come to the same conclusion, but we are unable to do so for two parallel reasons. First, we are satisfied that the conclusions reached, as we have indicated over and over again in emphatic language, foreclosed proper consideration of the Respondent's explanations, and thus infected the whole of the Tribunal's judgment. Secondly, all the criticisms that the Tribunal makes of the way in which the Respondent handled the question of suspension, if one ignores the finding of breach of procedures, are consistent with criticisms by a Tribunal which might have led to findings of unfair dismissal if there had been a dismissal or a constructive dismissal case, but we are unable to say that, without the question of deliberate breach of procedures, that the Tribunal would have come to the same conclusions on the issue of racial grounds. In those circumstances, we must allow this appeal.
- Mr Lynch QC had a fall-back argument which he put as an independent ground but which appears to us not to have been sufficiently strong to stand on its own; however, we should mention it because it may be of some relevance if this matter comes to a remission to the Employment Tribunal. He submits that this Tribunal erred in its approach to the question of racial grounds. The case he puts forward is that the Tribunal did not ask itself sufficient questions, and effectively reached a perverse conclusion as a result. He submits that there are, in fact, two propositions which can arise out of this case, which are not necessarily connected. He calls one the 'micro question' and the other the 'macro question'.
- The 'micro question' is, at any rate put in the way he expressed it, coming as he obviously does from the point of view of the Respondent, that the Respondent's witnesses submitted that they did not have race in mind when they suspended the Claimant. So far as they were concerned what they were faced with was a complaint of misconduct by a professional solicitor at a Magistrates Court, made by the responsible officer in the Magistrates Court, and the case that the Respondent would have investigated that matter in the same way, whatever the race of the accused person. Put the other way, the issue would be whether the Tribunal was entitled so comprehensively to reject the evidence of the Respondent that race played no part and, of course, one would have to inject into that question, although this Tribunal did not, the issue of unconscious discrimination as well as conscious.
- So far as the second proposition is concerned, the 'macro question', it is plain that the events of 9/11 and its aftermath could not be ignored, and that there was an element of race in the disaster and its aftermath is obvious; and consequently the suggestion that the misconduct alleged against the Applicant arose out of circumstances in which race played some part could not be denied. Mr Lynch QC submits that the Tribunal impermissibly jumped from the conclusion that, on the macro basis, race was inevitably involved, or may have been, in the incident at Bradford Magistrates Court, to concluding that the Respondent's witnesses were simply not telling the truth when they stated that so far as they were concerned race played no part in their conclusions. He refers in particular to the Tribunal's findings in paragraph 15.25, 15.28, 15.32, 15.33, 15.50 and 15.51. In particular, he points to the following passages in the judgment. First, paragraph 24:
"All of them [that is the witnesses for the Respondent] said that no questions of race arose in their minds when addressing the complaint that had been raised by Ms Philpott. The Tribunal did not believe that these were remotely credible responses in the circumstances for the reasons set out in the four following paragraphs."
Those four following paragraphs refer wholly to what Mr Lynch QC has called the macro questions. In paragraph 25 the Tribunal said as follows:
"Given this background the applicant was clearly vulnerable to be associated with these events, particularly when she was expressing opinions which were not favourable to the United States."
At paragraph 27 the Tribunal stated:
"The Tribunal is satisfied that considerations of the race, ethnic origins and attitudes of the applicant must have been very much in the minds of all those involved. Furthermore, the generally heightened atmosphere in the weeks following 11th September 2001 made it even more likely that these issues would consciously feature in their minds."
At paragraph 28 the Tribunal stated:
"Accordingly the Tribunal considers the studied denials by the Respondent's principal witnesses maintaining there was no connection between the Applicant's race and ethnic origins and the action taken against her was the most revealing aspect of the Respondent's evidence."
- There was, Mr Lynch QC submits, no connecting factor between the finding of the issue on the one hand as to whether the reason for the unfavourable treatment was on racial grounds and the fact that 11 September plainly coloured the events themselves in the Magistrates Court. There could have been a connecting factor in relation to a finding as to what motivated the conduct of the Respondent, but he submits there was not.
- We can see the force of the argument that there were perhaps some steps lacking in the conclusion reached by the Tribunal but, as we have indicated, had that argument stood alone we would have not have been able to have concluded that that showed or established perversity, particularly given the high test that is required for perversity since Crofton v Yeboah [2001] IRLR 634, on the part of a tribunal. The fact is, however, that the Tribunal having concluded that there was a deliberate, knowing and inexplicable breach of the procedures had little difficulty in adding a finding that the Tribunal believed that the Respondent's witnesses had effectively not been telling the truth when they denied the existence of racial grounds in their thinking on the particular facts of this case.
- Finally, we turn to the last ground of appeal which was pursued before us, which related to the issue of detriment. This can be dealt with shortly because, not least, we are in any event allowing the appeal on the main ground, and remitting this case for rehearing, but also because of the approach taken by Ms Bamieh at our invitation, with which we entirely agree. In paragraph 22 of the Tribunal's judgment the Tribunal set out a conclusion that there were five detriments to the Applicant resulting from the unfavourable treatment by the Respondent. So far as those five are concerned, the second and fifth were that on the one hand the manner of the Applicant's suspension caused her humiliation and distress; and on the other – and it is difficult to see that there is in fact a difference between them - she had suffered significant emotional distress because of the way in which she had been treated. Both those two matters appear to us not to be themselves independent detriments, but the consequence of detriments suffered, coupled of course with the indication that what occurred amounted to a detriment, because of course a detriment requires the suffering of some harm or disadvantage which is more than trivial. Of themselves therefore they would not be separate detriments. There is no challenge by Mr Lynch QC that if there had been a proper finding of unfavourable treatment on racial grounds in respect of the suspension and the transfer that those two matters would have amounted to detriments, although there would be a question over the effect of the transfer in terms of any compensation because it, in fact, was never put into effect, because the Claimant did not return to work. Those are the first and fourth of the five detriments found by the Tribunal in paragraph 22 of its judgment.
- That leaves the third matter which was found to be a detriment, which was the removal of the Claimant from the weekend/bank holiday rota. That is referred to not only in paragraph 22 but also in paragraph 15.60 of the judgment. It is apparent that the removal from the rota was at any rate argued by the Respondent to result from the fact that the Claimant was off sick. The Claimant alleges that it was a separate detriment, albeit in fact that because she did not attend for work she never had to suffer any consequence from her removal from the weekend/bank holiday rota. We are entirely satisfied, not least because it would appear that the matter was not fully argued before the Tribunal, and not put forward as any kind of separate cause of action by the Claimant, that this is a matter which was not fully considered by the Tribunal, and there is no sufficient reasoning in any event to justify a finding that this was a detriment of itself. Of course, it might be that removal from the rota, had it become effective and relevant, might in itself have been a financial consequence of the other two detriments, assuming that it was established that what led the Claimant to go off sick and therefore be ineligible for the rota was the unfavourable treatment found against the Respondent. Had we dismissed the appeal on all other grounds, the course which we would have taken here, which is a course we have taken in other cases, and which was one with which Ms Bamieh agreed, would be that, as there was to be a remedy hearing in any event which would decide the question of compensation, the appropriate course would be to discharge the finding of detriment over and above the issue of suspension and her transfer, and leave it to the remedy hearing to decide precisely of what the detriment consisted in for the purpose of their going on to decide what compensation to award. However, for the reasons that we have given we do not need to make any separate order in relation to remedy or indeed detriment, because we have allowed the appeal and quashed the decision.
- The issue then arises as to whether there should be remission to the same tribunal or to another tribunal. Ms Bamieh with her customary ability valiantly sought to argue that, if, contrary to her contention, the matter was remitted back to the tribunal, it should go before the same tribunal. The only ground upon which that could be supported was the understandable one of cost. If this matter starts again in front of a different tribunal, it will perhaps take less long than it took last time, but it will certainly take a good few days: whereas if it goes back to the same tribunal it might be dealt with shortly because the tribunal would have the benefit of its own notes of evidence. However, even this tribunal would have the disadvantage that it would be well over 18 months by the time the matter went back to them since they had last had to consider the case and over two and a half years since the case first started before them. We, however, are quite clear, having been addressed by Ms Bamieh by reference to the guidance setting out the principles given by this Appeal Tribunal in Sinclair Roche & Temperley v Heard [2004] IRLR 763, which were recently approved by the Court of Appeal in the case of Barke v Seetec [2005] EWCA Civ 578, that this is not a case which could possibly be returned to the same tribunal. Of course, every tribunal acts professionally and properly, and will endeavour to reach independently a decision on the facts before it, but we are satisfied that this Tribunal would find it impossible to unpick a decision that it has already reached; and that there would be the real possibility either that it reached a different decision because it felt it ought to, or reached the same decision because it felt it wanted to. It would be impossible, in our submission, for there not to be a real risk that there would not be independent judgment given to the facts of this case. Those cases in which we have sent matters back to the same tribunal, such as Sinclair Roche, are those in which the Appeal Tribunal has found effectively that the job was only half done by the tribunal: it has reached a certain stage but has not gone on to consider certain important questions. This Tribunal did proceed to the end of its consideration, but reached its conclusions, we are satisfied, in a wholly flawed way. We are comforted by the fact that in the event Ms Bamieh did not pursue her submission with any vigour, and recognised the difficulty in which she was in making that submissions in concluding as we do that this is a case which must be remitted, in the light of our decision, to a different tribunal.
- We cannot close our judgment without stating that this is a case in which both parties must carefully consider the issue of conciliation. For any case to go back to a rehearing before a Tribunal is regrettable both in terms of time and expense and also of heartache. That is particularly the case here, where (1) most significantly, the Claimant remains employed by the Respondent. (2) These are events which are now nearly four years ago and, as we have indicated, it is two and a half years since the hearing before the Tribunal first began. (3) Any fresh tribunal hearing would, as we have indicated, be likely to take quite a substantial period of time with the cost and inconvenience that that carries with it. Finally, neither side can be confident as to the outcome of a remitted hearing. This is not one of those cases where we have allowed the appeal on the basis that the employer second-time round is likely to succeed, far from it. We have indicated that there is a clear risk that the Respondent could still lose the case, but not on the basis upon which the decision was made by the Tribunal in this case. Equally, given the fact that, albeit the onus is upon the Respondent, the Claimant has the difficulty that any claimant has in succeeding in a case of racial discrimination, the Claimant too will have a good reason for attempting to resolve this by conciliation. We are going to include in our order a direction that both sides write to the Employment Tribunal within 21 days indicating whether they are or are not prepared to submit this matter to conciliation by ACAS.
