Appeal No. EAT/116/94
			EAT/115/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 12th January 1996

	Before

	THE HONOURABLE MR JUSTICE MUMMERY (P)

	MR J H GALBRAITH CB

	MR R SANDERSON OBE

EAT/116/94
(1) LONDON BOROUGH OF HACKNEY	APPELLANTS
(2) MRS COLLINS

K FASHOLA	RESPONDENT

EAT/115/94
K FASHOLA	APPELLANT

(1) LONDON BOROUGH OF HACKNEY	RESPONDENTS
(2) MRS COLLINS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

EAT/116/94
For the Appellants	MISS C BOOTH Q.C.
(of Counsel)
Legal Services Directorate
London Borough of Hackney
298 Mare Street
London E8 1HE

For the Respondent	MS I OMANBALA
(of Counsel)
Messrs Jay Vadhar & Co
Solicitor
Victoria House
185 Romford Road
Stratford
London E15 4JF

EAT/115/94
For the Appellant	MS I OMANBALA
(of Counsel)
Messrs Jay Vadhar & Co
Solicitor
Victoria House
185 Romford Road
Stratford
London E15 4JF

For the Respondents	MISS C BOOTH Q.C.
(of Counsel)
Legal Services Directorate
London Borough of Hackney
298 Mare Street
London E8 1HE

	MR JUSTICE MUMMERY (PRESIDENT):   There are two appeals before the Tribunal, both arising out of proceedings between Mr Fashola and the London Borough of Hackney. 

	The first appeal is by the London Borough of Hackney and is against the finding of the Industrial Tribunal that Mr Fashola had been victimised by the Council. An award of compensation was directed to be made.

	The second appeal, which arises from the same decision, is by Mr Fashola. He appeals against the finding of the Industrial Tribunal, in connection with his successful claim for unfair dismissal, that he had contributed to his dismissal by his conduct. The assessment by the Tribunal that the extent of that contribution was 100%.

	The full reasons for the decisions appealed against are contained in the decision document sent out to the parties on 17th December 1993 after a hearing at London (North) between 8th and 15th November 1993.

	Initially, there were other appeals arising from that decision, but they have not been pursued.

	Mr Fashola made an unsuccessful claim that he had suffered racial discrimination contrary to Section 1 of the Race Relations Act 1976 when he was dismissed from his employment on 8th January 1992. Ms Omanbala, on behalf of Mr Fashola, indicated that that appeal was no longer pursued.

	The Council, by way of cross-appeal, initially stated that they wished to appeal against the finding of the Industrial Tribunal that Mr Fashola had been unfairly dismissed, but Miss Booth, on behalf of the Council, indicated that the Council no longer wished to pursue that appeal.

	That leaves two matters, victimisation and contribution.

	Before dealing with the legal arguments on each of those points, it is necessary to state the issues in the dispute and the findings of fact made by the Industrial Tribunal.

	The Industrial Tribunal made these findings: Mr Fashola is Nigerian; he started working for the London Borough of Hackney in 1974. His career with the Council was satisfactory, from the Councils' point of view, and from his point of view. He had no complaints of discrimination. He was employed in the valuation department. While working as a trainee in that department he was able to study and obtain a university degree. There was some disagreement in the late 1980's which arose out of his complaint that he was not gaining promotion and felt that the reason for that was that he was black; he brought a grievance procedure which was resolved by agreement; and it was agreed that he would promoted to a grade PO5 in December 1990.

	The events which led to the present dispute occurred quite soon after the second respondent, Wendy Collins, took up the post of Borough Valuer, on 4th March 1991. That post had been vacant for the previous 18 months. There had not even been an Assistant Borough Valuer. A Mr Clarke had been acting up as Assistant Borough Valuer while there was a vacancy. Not surprisingly, when Mrs Collins took up her post, she found that there was chaos within the department. The Tribunal set out details of what she started to do about it. The Tribunal made the general observation, which was important for their resolution of the facts, that, where there were conflicts of recollection between Mrs Collins and Mr Fashola, they preferred the evidence of Mrs Collins. They found that Mr Fashola gave vague and contradictory evidence, and, in some cases, was not able to substantiate claims.

	The events which led up to first Mr Fashola's suspension and then his dismissal are set out in detail. It is sufficient to summarise the relevant events as these: in March and April 1991 there were various memoranda written by Mr Fashola in language and terms not appropriate to be addressed by an employee to a superior employee. The language of them is intemperate. It is quoted in the decision. These memoranda and various other events led to a notice of complaint being issued against Mr Fashola on 25th April 1991. The complaint was that he had failed to obey instructions and had been negligent. Complaints were made of his conduct, and in particular, of the wording and sending of the memoranda which contained serious allegations without any particulars to support them. Mrs Collins's case in her evidence was that all she was trying to do at this period was to get Mr Fashola to do his work. There were attempts to set up meetings, but Mr Fashola did not attend them. 

	Matters carried on in this way until 5th July 1991 when another notice of complaint was laid against Mr Fashola, alleging gross misconduct. On 10th July 1991 Mr Fashola was suspended. He did not do any further work for the Council in the department again. 

	There was a hearing of the complaints before a Local Officer. The matter was heard by Mr Quinn as Chairman, advised by Mr Charles Obazuaye as Personnel Officer, and a Mr George Tufaksis. The hearings took place on 23rd July and 6th and 7th August 1991. The cases were found to be proved. Mr Fashola was reprimanded. He was ordered to be demoted to the bottom of the PO3 grade and transferred to a section within valuation at the discretion of the Borough Valuer. Mr Fashola was informed of the decision by a letter on 19th August 1991. He was advised of his right to appeal, a right which he invoked on 2nd September 1991, when he gave notice that the hearing officer's decision was "irrational, biased, took into consideration irrelevant factors and the sanction was disproportionate to the complaint and was designed to achieve an improper purpose."

	The hearing of the appeal, which was due to take place on 9th October 1991, was postponed due to sickness on the part of Mr Fashola. In mid-October he issued grievance proceedings against Mrs Collins alleging racial discrimination. He relied on matters which had preceded his suspension. He also made a complaint against Mr Clarke and issued a race relations questionnaire.

	On 10th December 1991 he was sent a letter relating to re-instatement to duty, referring to the suspension on 10th July 1991 and saying that the position had been reviewed and it was considered that it would be appropriate for him to return to duty on 16th December 1991. He did not return to duty. 

	The appeal committee had met on 10th December 1991 and again at an adjourned hearing on 8th January 1992. The Tribunal set out the evidence which they accepted from Councillor Burnell who chaired the appeal sub-committee. The upshot of the appeal was that not only was it dismissed but the sanction imposed on Mr Fashola was increased. They decided that he should be dismissed for gross misconduct.

	The evidence given by Councillor Burnell was that the committee considered the evidence. They had seen all the memoranda and evidence that was before the Local Officer. They concluded that the facts found by Mr Quinn were correct and there were no grounds for overturning them. They accepted that the allegation of abusive and malignant behaviour to a senior officer amounted to gross misconduct.

	Under the Council's disciplinary procedures, gross misconduct could lead to summary dismissal. The procedures allowed for an appeal where there was a power to vary the findings of the Local Officer, including the institution of more disciplinary action. As far as the Council was concerned the decision of the appeal committee was final. There was no further appeal from it. Councillor Burnell's evidence was that the reason that the severity of the punishment was increased was that it was considered it was severe enough, because of the subsequent behaviour of Mr Fashola, and his failure, as he saw it, to grasp the "olive branch" given to him. That is a reference to the offer for him to go back to work to his demoted post and continue working for the Council. Councillor Burnell also referred to Mr Fashola's behaviour at the hearing, and his attitude to Mrs Collins. He thought that Mr Fashola had displayed evidence of sexual harassment against women, specifically Mrs Collins.

	He said that he had asked Mr Quinn, who conducted the case on behalf of the Council, whether with hindsight he still not have dismissed Mr Fashola, Mr Quinn agreed that he thought that because of the subsequent behaviour of Mr Fashola he should have been dismissed.

	Those are the key findings of fact.

	The Tribunal's conclusions which, in our view, would have been improved by fuller exposition than they are given in paragraph 9 of the decision, were, firstly that there was nothing to indicate that there was a racial motive influencing the decisions to issue the notices of complaint by Mrs Collins in April and July 1991. The complaint of racial discrimination was therefore dismissed. The appeal against that has not been pursued. Secondly, the dismissal was unfair; it was for gross misconduct. The Tribunal thought it was unfair because it was clear that, if he had not appealed, he would not have been dismissed. The reason for the dismissal was that he had subsequently issued grievances against Mrs Collins and appeared to have continued with the alleged behaviour. He also seemed to have shown sexual bias against Mrs Collins. There was also unfairness in the fact that Mr Fashola had no chance to answer the allegations and that there was no opportunity for him to appeal further against the appeal committee's decision to dismiss him. They accepted that the time he made the appeal he could not have foreseen that dismissal would have been the outcome. It is common ground on the appeal, and accords with the experience of the members of this Tribunal, that it was very unusual for a sanction on an appeal in a disciplinary proceeding to be more severe. 

	Thirdly, the Tribunal found that the dismissal was caused wholly by Mr Fashola's misconduct which entitled a reasonable employer to dismiss him and, for that reason, exercised the power under Section 74(6) of the Employment Protection (Consolidation) Act 1978 to reduce his compensation by 100%.

	Mr Fashola appeals against that as legally incorrect.

	Fourthly, and finally, the Tribunal concluded that Mr Fashola had been victimised. The reasons for that conclusion are expressed in these paragraphs:

		"The Applicant has claimed that he was victimised in that the dismissal resulted from the fact that the councillors took into account that he had raised a grievance against Wendy Collins alleging race discrimination and also had put in an application to this Tribunal.

		From the evidence of Councillor Burnell it is clear that this is sound. We accept that one of the reasons that the councillors increased the penalty to dismissal was the Applicant had made an allegation within Section 2 of the Race Relations Act 1976 that the council through Mrs Collins had committed an act which could amount to contravention of the Race Relations Act."

It is that ruling that the Council appealed against in their Notice of Appeal served on 26th January 1994.

	We heard the Council's appeal first. We have reached the decision that there is an error of law in the Tribunal's decision. The proper course is to allow the appeal and to dismiss the complaint of victimisation, on the grounds that a tribunal, on the findings of fact contained in full reasons and on a proper application of the law, could only come to the conclusion that there was no victimisation in this case.

	The error of law is in the mis-application of Section 2 of the Race Relations Act 1976. That creates the offence of discrimination by way of victimisation. As indicated by the side note of the Section, there are two elements in the offence; one is discrimination, in the sense of less favourable treatment, and the other is that the discrimination is by way of victimisation, i.e. for an impermissible reason. The relevant parts of the section provide:

		"(1)	 A person ("the discriminator") discriminates against another person ("the person victimised") in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has-

		(a)	brought proceedings against the discriminator or any other person under this Act;
		...

		(c)	otherwise done anything under or by reference to this Act in relation to the discriminator or any other person; or
		(d)	alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act, ..."

	An earlier decision of this tribunal was given on 11th October 1995, in proceedings involving the same Mrs Collins. On that occasion the complainant was a Mr Sampong It was held that it is necessary for an Industrial Tribunal, when applying Section 2, to answer two relevant questions. The first is whether the complainant was less favourably treated than someone who has not done a protected act within Section 2(1). Secondly, whether that less favourable treatment, if it is established, was due to the complaint made to the Industrial Tribunal or the commission of some other protected act identified in Section 2(1). In that judgment the Appeal Tribunal summarised the law as authoritatively interpreted by the Court of Appeal in Aziz v Trinity Street Taxis Ltd [1988] ICR 534. The first question of less favourable treatment necessitates a comparison to be made by the tribunal. The tribunal has to compare the treatment alleged to have been applied by the discriminator to the complainant with the treatment which either has been applied or would hypothetically be applied by that person to those who have not done the relevant protected act.

	In the case of Collins v Sampong the Industrial Tribunal made the same error in the application of Section 2(1) of the 1976 Act which we find has been committed by the Tribunal in this case. That is a failure to focus on the key question of less favourable treatment. There is no indication in this decision that the Tribunal addressed the question whether the Council had treated Mr Fashola less favourably than they would treat a person who had not made complaints of race discrimination against them. That is a fundamental requirement of the Section. Unless we are satisfied that the Tribunal have addressed it, it must follow that an error of law in the decision makes it necessary to allow the appeal.

	Miss Omanbala, on behalf of Mr Fashola, presented a clear argument. We are grateful for her assistance. Her argument was that the Tribunal had found as a fact that Councillor Burnell gave evidence that the severity of the punishment to Mr Fashola was increased because of his subsequent behaviour and his failure to grasp the "olive branch". That subsequent behaviour included the lodging of a grievance against Mrs Collins alleging race discrimination. The Tribunal found that the appeal committee had taken into account, in coming to the decision to dismiss Mr Fashola, the fact that he had made the allegations of race discrimination. Councillor Burnell knew that Mr Fashola had put in a grievance against Mrs Collins and that that grievance raised the alleged race discrimination. The raising of the grievance was a protected act. The Tribunal had found that the commission of that protected act was a reason for the increase of the penalty. The Tribunal had therefore found that the requisite causation was present. In those circumstances there was no legal error in the decision. 

	As to the question of less favourable treatment, Miss Omanbala accepted that there was no express comparison of the treatment of Mr Fashola with a hypothetical comparator, but submitted that that failure does not itself constitute an error of law. She reminded the Tribunal that it is not the function of the Appeal Tribunal to comb through a decision trying to find some error of law. The Tribunal knew that they were addressing the question of victimisation and were aware of the relevant factors which had to be taken into account. The fact that they had not expressly dealt with the requirement of less favourable treatment did not necessarily mean that they had failed to consider it. 

	We are not persuaded by these arguments. It seems to us that the Tribunal must have overlooked the requirement of less favourable treatment. There is no indication anywhere in the decision that they addressed themselves to the required comparison. There is no explanation at all of their findings or inferences or reasoning on that issue. In those circumstances the appeal must be allowed, because of the mis-application of the statutory provisions.

	That leaves one further point we should deal with more briefly. It was argued by Miss Booth, on behalf of the Council, that the Tribunal, in finding that there were mixed reasons, had failed to assess the relative weights of the different factors in accordance with the ruling of this Tribunal in Nagarajan v Agnew [1995] ICR 520. The Tribunal at page 535G laid down this proposition:

		"In our judgment, where an industrial tribunal finds that there are mixed motives for the doing of an act, one or some but not all of which constitute unlawful discrimination, it is highly desirable for there to be an assessment of the importance from the causative point of view of the unlawful motive or motives. If the industrial tribunal finds that the unlawful motive or motives were of sufficient weight in the decision-making process to be treated as a cause, not the sole cause but as a cause of the act thus motivated, there will be unlawful discrimination. An important factor in this decision is clearly well within that principle."

	In our view, the Industrial Tribunal is open to the criticism that they did not in this case attempt to make any assessment of relevant weights to be attributed to the various reasons for the decision to dismiss Mr Fashola. All they said in the final paragraph of the decision was that they accepted that one of the reasons for the decision to dismiss was the commission of a protected act.

	If that were the only point on this appeal then we would conclude that the right course to adopt would be to remit the matter to the Industrial Tribunal in order to carry out the exercise of weighing the various factors in the decision to dismiss. We do not, however, think that that is the right course to adopt because, as already explained, there is a more fundamental error in this decision. The failure to address the question of less favourable treatment vitiates the decision. The causative test does not have to be addressed, unless it is first established that there was less favourable treatment of Mr Fashola than would have been given to someone else in similar circumstances. Our conclusion on this part of the case is that the findings of fact by the Tribunal show that the only conclusion that the Tribunal could reach on the material before it, if it had carried out this exercise, was that Mr Fashola was not less favourably treated than someone in similar circumstances. It is clear from the findings of fact that the Council had sufficient grounds on which any reasonable employer could have arrived at the decision to dismiss Mr Fashola for gross misconduct. There is no indication in the findings of fact that he was less favourably treated in the decision to dismiss him than another person would have been who had not committed one of the protected acts. It is for those reasons that we decide to substitute a decision of our own that the complaint of victimisation should be dismissed. If the matter were remitted to an Industrial Tribunal, they would be bound to come to the conclusion that the complaint should be dismissed, because there was no evidence of less favourable treatment.

	The appeal by Mr Fashola can be dealt with more briefly.

	The Tribunal said that Mr Fashola had caused wholly, by his actions of gross misconduct, his own dismissal, and that justified the exceptional step of reducing the compensation by 100%. The Tribunal found that those acts would entitle any reasonable employer to dismiss him.

	The power to take into account contributory conduct, as reducing the compensatory award, is contained in Section 74(6) of the 1978 Act. That provides:

		"(6)		Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding."

	A decision in the exercise of that power is one of fact and degree. It will be very unusual for this Tribunal to interfere with a finding of contributory conduct or even more unusual to interfere with the percentage which the Tribunal has decided should be the proportion of reduction in the amount of compensatory award.

	We have examined this decision with particular care, because, as Ms Omanbala points out correctly, it is exceptional for a tribunal, on the one hand, to find unfair dismissal and, on the other hand, to find that the person who has successfully claimed unfair dismissal is totally to blame for his dismissal. But, as illustrated by a number of cases, in particular Allders International Ltd v Parkins [1981] IRLR 68. It is permissible, in an appropriate case, for 100% finding of contributory fault to be made. That was an extreme case where the Appeal Tribunal itself substituted a finding of 100% fault for the 50% contributory fault found by the Industrial Tribunal.

	What is wrong in law with this decision? Miss Omanbala submitted that the Tribunal had adopted the wrong approach to the exercise of its discretion. The Tribunal had identified Mr Fashola's conduct as the reason for his dismissal, but it was his act of appealing against the initial penalty short of dismissal, which precipitated the decision to dismiss him. She submitted that Mr Fashola's actions in appealing against the demotion decision cannot, as a matter of law, constitute blameworthy conduct. Conduct of an employee must be culpable or blameworthy in the sense that it amounted to a breach of contract or a tort. She submitted that the Tribunal also erred in law in its assessment of the contributory conduct in any event. She submitted that the Tribunal had failed to give Mr Fashola an opportunity to adduce evidence on this matter, and a finding, which meant that he would get no compensation for unfair dismissal, had been made against him without his representative being asked to address the Tribunal on that issue. 

	Our conclusions on these arguments are these: First, we cannot allow, as a ground of appeal, the argument that the Tribunal had reached a conclusion on this issue without giving Mr Fashola a chance to adduce evidence or his representative a chance to advance argument. Mr Fashola was represented at the Tribunal by Counsel. The Notice of Appeal was settled by Mr Fashola himself. It sets out in very comprehensive terms his grounds of complaint. There is no complaint that this part of the case had been decided against him without evidence or argument. If this kind of ground is to be advanced it must be contained in the grounds of appeal, because it is the kind of complaint which this Tribunal would require the Appellant to particularise, either in an affidavit or in a statement which could then be provided to the Tribunal criticised for its procedure. We would then have the benefit of their comments on the course of the proceedings before the Tribunal. It is too late now to raise this point, assuming (there is no evidence at the moment), that there is anything in that particular complaint. 

	As to the other arguments that the Tribunal had adopted the wrong approach and had come to an assessment which was perverse, we are unable to accept either of those arguments. It seems to us that the Tribunal, in coming to its conclusions on contributory fault, took into account all the findings of fact which it had made. It was not a question of Mr Fashola contributing to his dismissal by appealing. The dismissal decision had taken into account his previous conduct which the committee thought amounted to gross misconduct. The Tribunal were entitled to take into account all the matters which had preceeded the decision to dismiss Mr Fashola and could amount to gross misconduct for which any reasonable employer would be entitled to dismiss an employee. There were ample findings of fact in the Tribunal's decision which entitled them to exercise the power under Section 74(6) and to justify the exceptional assessment of 100%. We can find no error of law in that. Those are essentially factual decisions over which we have no jurisdiction to entertain an appeal. We reject the appeal on the contribution question.

	The result is that the Council's appeal against the finding of victimisation is allowed, and the complaint of victimisation is dismissed. The appeal of Mr Fashola against the order of 100% contribution is dismissed, because there is no error of law in that decision.