Appeal No. UKEAT/0548/03/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 1 December 2003

Before
THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)
MR B R GIBBS
MRS M McARTHUR

LONDON FIRE AND EMERGENCY PLANNING AUTHORITY	APPELLANTS

MR W BYRNE	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR C WYNTER
(of Counsel)
Instructed by:
London Fire and Emergency 
Planning Authority
Legal Dept, Room 611
Main Building
Fire Brigade HQ
8 Albert Embankment
London SE1 7SD

	
For the Respondent	MRS J BYRNE
(wife)	

THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)

1	This has been the hearing of an appeal and cross-appeal in respect of a Decision of the Employment Tribunal at Stratford which was heard over, we think, nine days, in September and December 2002.  The claim was by Mr Byrne, who was at all material times there and before us represented by his wife, Mrs Byrne, against the Respondent, the London Fire and Emergency Planning Authority, for whom Mr Wynter, of Counsel, appeared below and before us.  

2	There have been a substantial number of complaints made by Mr Byrne against the Respondent, by which he was employed from March 1985, reaching the rank of Station Officer, until 3 December 1998, at which time he was posted to Poplar Fire Station.  His claims were contained in three Originating Applications at the Stratford Employment Tribunal, which were heard together.  Those claims were based upon allegations of discrimination on the grounds of race and sex; of victimisation on the basis of the making of a protected disclosure under section 47(b) of the Employment Rights Act 1996 and of victimisation in the circumstances set out in section 2(1) of the Race Relations Act 1976.  

3	The substantial majority of those complaints were dismissed by the Employment Tribunal.  The only claim which was found in the Applicant’s favour against the Respondent was of victimisation by virtue of the conduct of a senior employee of the Respondent, as we understand it, Director of Personnel and Training at the time, a Mr Bone, based upon allegations that he treated the claimant unfavourably in two regards: one is by virtue of a report which he made into the complaints being made by the claimant against others, and the second related to the refusal to the claimant of the opportunity to be trained during a period when he was, at his own request, excused from duty.

4	The findings of the Tribunal in that regard were that there had been victimisation within sections 2 and 4 of the Race Relations Act 1976.  In order for the Respondent, which accepts vicarious liability for the acts of Mr Bone, to be found liable for victimisation, the provisions of section 2(1) require to be fulfilled, which are as follows:
“A person (“the discriminator”) discriminates against another person (“the person victimised”) in any circumstances relevant for the purposes of any provision of this Act …”
It is common ground here that section 4 applies.
“… 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 ….”
Then under (a) (b) (c) and (d) there are set out what could loosely be called for these purposes “the protected acts”.  
“(a) brought proceedings against the discriminator or any other person under this Act; or
(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act; or
(c) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person”

5	The protected acts which were found by the Tribunal to have occurred here were twofold:  (1) that the Applicant had brought an Originating Application against the Respondent in the Watford Employment Tribunal in June 2000; (2) that he had assisted a Mr Kyte in about between February and August 2000 in relation to the bringing of a claim by Mr Kyte against the Respondents.  Another protected act had been alleged by the Applicant in respect of a Mr Breen, but the Tribunal made no findings in that regard.  

6	The cases that were being put forward by the parties before the Tribunal were, of course, diametrically opposed.  The case itself ranged over a large number of allegations and incidents, all, save those to which we have been referred, being, as we have indicated, dismissed, and there was thus an inevitably diffuse investigation by the Tribunal and a relatively lengthy Decision.  It is obviously far easier for an Appeal Tribunal presented with one point to look at, necessarily being one of law, than for an Employment Tribunal which is presented with so many different issues to resolve, to see sometimes the wood for the trees.  So far as seeing wood for trees are concerned, we would like to put in a respectful plea to this Tribunal, and any other Tribunals who may read this judgment, to ensure that paragraph numbers are consecutively numbered.  It is not at all easy either for the parties in their Notice of Appeal or in their arguments, or for an Appeal Tribunal, to scrabble through the pages looking for a subparagraph (xviii) or a sub-subparagraph (aa) without knowing what substantive paragraph those sub-paragraphs or sub-subparagraphs form part of, and we would ask that Tribunals number their paragraphs either totally consecutively or, if as is very often the case, it is considered helpful to have subparagraph numbering, to keep the substantive paragraph number at all times in the enumeration viz: 9.1; 9.2;9.3.1; 9.3.2 etc, because in that way it is far easier to find relevant points in the course of argument.  

7	We turn to the issues before us.  We have indicated that the parties were putting forward diametrically opposed cases,  So far as the one surviving issue is concerned on the appeal, the Applicant was asserting that Mr Bone deliberately victimised the Applicant, who is Irish, was part of a conspiracy to do him down, and specifically so by virtue of the protected acts.  The Respondents’ case was that there was no discrimination or victimisation at all.  They succeeded in relation to all the cases of discrimination and all other cases of victimisation, but they failed in relation to Mr Bone; but their case was that there was no unfavourable treatment of the Applicant, and no connection between any unfavourable treatment and the protected acts in any event.  

8	The Tribunal quite plainly rejected the case for the Applicant that there was a conspiracy or that there was conscious and deliberate victimisation found by Mr Bone.  However, the Tribunal did not find, consequently, for the Respondent.  The Tribunal reached a middle course, as it was perfectly entitled to do, based on its own thinking.  It may have done this as a result of the presentation, by Mr Wynter on behalf of the Respondent, but in the interests of both parties, of a non-controversial note of the law, in which was included the authority of Nagarajan -v London Regional Transport [1999] IRLR 572.  This note was produced at the suggestion of Mr Wynter, and by arrangement, for the Tribunal and for the unrepresented Applicant (as I have indicated, represented by his wife who is not a lawyer) in advance of the presentation of written closing submissions at the end of the case.  It is referred to in paragraph 7(d) of the Decision by the Tribunal, in the context of which subparagraph the Tribunal refers to the presentation by Mr Wynter of a helpful “Note on the Law of Victimisation”, and the cases that are referred to in that Note are set out, including Chief Constable of West Yorkshire Police -v- Khan [2001] IRLR 830, as to what the Tribunal calls the causal element, and Nagarajan, which is referred to in this way by the Tribunal:
“in which it was held that conscious deliberate victimisation need not be shown - it might be subconscious”

That was, it seems, the only reference to the law in the Decision, but it is clear that the Tribunal picked up from the reference in Nagarajan the concept of unconscious victimisation, which of course would have been familiar to them in any event, and based their conclusion upon it.  

9	It is unfortunate in this case that there were no oral closing submissions.  It is, in our experience, far better, if at all possible, to have at least some closing submissions delivered orally.  It appears that what happened here was that it was inevitable after a nine day case that there were going to be closing submissions, that a possible date was canvassed for a further hearing, and when it became apparent that, due to commitments of Mr Wynter, it was not going to be possible to have that hearing in early course, the Tribunal concluded that it would dispense with any such further hearing.  

10	No criticism can be laid at anyone’s door in this regard, however, it appears clear to us that in the circumstances in which a Tribunal was going to, and/or in any event did, arrive at a conclusion which was one which was put forward by neither side as its case, it needs to be careful to ensure that an opportunity to canvass that matter has been proffered, and in any event that when the Tribunal comes to its own decision, such point not having been canvassed with the parties, the fullest exposition is given in the Decision, both in order to avoid unfairness and also in order to reveal the nature of the Tribunal’s thinking.  

11	The Respondent did not, save for having referred to Nagarajan in its Note, address the question of subconscious victimisation.  Nor did Mrs Byrne, in her very lengthy submissions - we have seen them and they run to 128 pages - on behalf of her husband.  The only reference to conscious and unconscious is on the 127th page of her submission, and it reads as follows:
“Although the evidence shows that Mr Bone headed the conspiracy against the applicant, with regard to the Nuremberg principle, the other officers must be held accountable for their action, whether they discriminated/victimised consciously or subconsciously”

Mrs Byrne has said that she did not in fact understand the authorities that had been provided to her, nor had noted the law, and had not fully comprehended any concept of conscious or unconscious discrimination, but had included that paragraph in any event.  But even leaving that aside, it is apparent that the only addressing of the possible question of subconscious discrimination or victimisation was in that passage and in any event without any explanation or expansion in relation to individual employees, other than Mr Bone.  

12	The Tribunal’s conclusion is set out in paragraph 9(e) of its Decision at page 20 and it reads as follows:
“Having considered all the circumstances, the Tribunal finds that the Respondent in the person of Mr Bone did not intend consciously to subject the Applicant to less favourable treatment.  Nonetheless, the Tribunal finds that the Respondent did treat the Applicant less favourably than it would treat another hypothetical employee in similar circumstances and did so by reason of the protected acts relied on.  The Tribunal finds that Mr Bone had much in mind the proceedings commenced by the Applicant and presented to the Tribunal on 17 June, as well as the Applicant’s contact with Mr Kyte.  Having considered the manner in which he carried out his task preparing a report, and the manner in which he dealt with the Applicant during the course of its preparation, which are matters which have not been otherwise satisfactorily explained, the Tribunal draws the inference that Mr Bone was subconsciously influenced by the Applicant’s commencement of Employment Tribunal proceedings and his contacts with Mr Kyte.”

There was thus, in respect of a man who it is not suggested had previously known Mr Byrne, and who was appointed, as we shall describe, to investigate his complaints, a finding that he was not party to a conspiracy, such as had been alleged by the Applicant; had not deliberately discriminated against or victimised the Applicant, and had not deliberately done so as a result of the Applicant having brought proceedings against the Respondent; but that he had unconsciously treated him unfavourably, and done so as a result of the subconscious influence of the Applicant’s commencement of Employment Tribunal proceedings.  

13	Mr Wynter does not suggest that this was not a finding to which this Tribunal could come insofar as he accepts, by reference to the case of Nagarajan itself, which he himself drew to the attention of the Tribunal, that there can be a finding of unconscious victimisation unconsciously caused by a protected act.  However, he points to the extremely clear and lucid exposition of the law, with which we agree, recently set out by Mr Justice Elias, in The Law Society -v- Bahl [2003] IRLR 640, which of course draws upon the House of Lords decisions in Nagarajan -v- London Regional Transport, Glasgow City Council -v- Zafar [1998] IRLR 36 and Chief Constable of West Yorkshire Police-v-  Khan.  The relevant passages of Mr Justice Elias’s decision are those relating first to subconscious victimisation and secondly, to causation.  

14	So far as subconscious victimisation is concerned, Elias J points out, and repeats the well known understanding in paragraph 97, that: 
“Demonstrating the similar treatment of others of a different race or sex is clearly not the only way in which an employer who has acted unreasonably can rebut a finding of discrimination.  Were it so, the employer could never do so where the situation he was dealing with was a novel one, as in this case.  The inference may also be rebutted -  and indeed this will, we suspect, be far more common - by the employer leading evidence of a genuine reason which is not discriminatory and which was the ground of his conduct.  Employers will often have unjustified, albeit genuine, reasons for acting as they have.  If these are accepted and show no discrimination, there is generally no basis for the inference of unlawful discrimination to be made.  Even if they are not accepted, the tribunal’s own findings of fact may identify an obvious reason for the treatment in issue, other than a discriminatory reason …..  
98  Accordingly, to the extent that the tribunal found discriminatory treatment from unreasonable treatment alone, their reasoning would be flawed and the finding of discrimination could not stand. That is the clear ratio of Zafar and that decision remains unaffected by Anya” 
[a reference to Anya -v- University of Oxford [2001] IRLR 377.]  

15	It must be emphasised that there is no question of the reversal of the burden of proof under the present law relating to race discrimination.  Elias J continues, relevantly for our purposes, at paragraph 113 as follows:
“there is an obligation on the tribunal to ensure that it has taken into consideration all potentially relevant non-discriminatory factors which might realistically explain the conduct of the alleged discriminator.  As Lord Nicholls put it, if prima facie there is a factor which distinguishes the two situations, then that may well be the non-discriminatory reason for the treatment, unless the evidence indicates otherwise.  If the tribunal do not recognise the potential significance of such a factor, then their decision will be flawed because they will have failed to take into account a potentially material characteristic or characteristics which could conclusively explain, on non-discriminatory grounds, the difference in treatment between the applicant and the hypothetical comparator.  A tribunal cannot properly reject such potentially relevant explanations without considering them and having a proper evidential basis for rejecting them.”
At paragraph 120 Elias J points out:
“a tribunal should take special care to explain how it has reached its conclusions if it finds unconscious discrimination” 
And there is a reference to the decision of Governors of Warwick Park School -v- Hazelhurst [2001] EWCA Civ 2056.

16	The brief circumstances of the case here, for our purposes, can be summarised as follows.  Mr Bone was appointed to carry out an enquiry into complaints made by Mr Byrne in June 2000.  The initial complaints,  which Mr Bone was to look into, justified the appointment of a senior employee such as Mr Bone, because the complaints related to allegations against a Mr Bishop, the Area Commander, and a Mr Anthony, the Divisional Commander of Operations, and Mr Bone proposed an initial fact-finding interview for 28 June 2000, to ensure that he had a full statement of Mr Byrne’s complaints to enable him, among other things, to decide through which procedure they should be progressed, and he invited Mr Byrne to be represented at the interview by a trade union representative or a friend.  Due to various commitments, the meeting was postponed until 13 July 2000.  By that time Mr Bone had discovered that Mr Byrne had lodged an application to an Employment Tribunal, namely, in the event, the Watford Employment Tribunal, detailing various allegations of discrimination and victimisation, and in fact although we have not seen those proceedings, which are still extant, it appears that those relate to the same allegations as were being made by Mr Byrne against Mr Bishop and Mr Anthony, which were the subject matter of Mr Bone’s investigation.  

17	Soon afterwards, Mr Byrne’s wife sought to add a number of additional complaints to Mr Bone’s enquiry, and it was determined by Mr Bone that they should fall outside the ambit of his enquiry, although it was accepted that there might be links with the events under examination.  However, the limited ambit of the enquiry, as it then was, was subsequently expanded at the instance of the Applicant.  At the initial meeting on 13 July 2000, a substantial raft of new allegations was included by the Applicant in what we can call the “Bone enquiry”.  

18	The allegations against Messrs Anthony and Bishop can be described as “Issue 1”.  There were now added complaints by the Applicant of harassment against him by his subordinates, including Messrs Banks, Smith, Muldoon and a related issue concerning a Mr Mailer.  Those matters related to conduct at the fire station or fire stations where he had been the Station Officer, and related, as we have indicated, to alleged conduct by those for whom he was responsible.  Those matters can be described as Issue 2 within the enquiry.  

19	In addition the Applicant complained that other members of the Authority were treated differently from him when they went off sick with stress; that became Issue 3.  Mr Bone felt that the meeting on 13 July had proved useful, as he put it in paragraph 11 of his report, in clarifying the issues that Mr Byrne wished to pursue.  He was to be on leave from 14 to 26 July and he considered the clarification of the issues which enabled him to complete his enquiries expeditiously on his return.  When he returned from leave he found that Mr Byrne had sent him further e-mails dealing with a variety of new complaints, and those cumulatively - there were seven of them  - as summarised by Mr Bone in his report, can be categorised as Issue 4.  They covered a wide area in terms of different events and different personnel.  

20	There was then a fifth issue raised by Mr Byrne in September 2000, relating to the fact that Mr Byrne had received at his home address a payslip sent, apparently, by the Respondent authority, on which there had been racially abusive words written.  It was concluded by Mr Bone that, as this matter had been referred properly by the Applicant to the police, that would not form part of his enquiry.  

21	The enquiry report, together with notes of the two meetings of 13 July and 7 September 2000, copies of which notes were not supplied to the Applicant at the time, were before the Tribunal.  It is apparent from the notes and from the report that Mr Bone was losing patience with the Applicant, as a result of what he saw to be the position taken by the Applicant, and the expanding ambit of the complaints before him.  There is a note of the second meeting which said at paragraph 62:
“Bone said that he wanted to get Byrne back to duty and did not want to protract the investigations unnecessarily.  However Byrne must realise that by constantly widening the boundaries of his complaints and continually submitting further emails, he had protracted the investigation.”

And at paragraph 65 there is a note:
“Bone suggested that Byrne might need to think about how he presents himself when interacting with other people.  Bone noted that while Byrne may not intend to present as aggressive, he should consider whether this was how he was perceived.  Bone said that Byrne clearly has high standards and expectations, and was strongly motivated.  However he seemed to have a low opinion of his peers, subordinates and senior officers.”

22	The Report found the allegations by the Applicant unfounded (as indeed, of course, did the Stratford Employment Tribunal, subsequently) save for the one against which we are hearing an appeal, in respect of those matters of discrimination and victimisation which were before it.  Of course those matters did not include the original allegations against Messrs Anthony and Bishop, which remained in the Watford Employment Tribunal.  

23	Mr Bone dismissed the complaints in a twenty two page report, which dealt with each of the issues, with the exception of those matters, which as we have explained, fell outside the ambit of the report.  It set out the nature of the complaints and Mr Bone’s reasons for rejecting them.  Mr Bone did not mince his words in the way in which they were rejected, but we quote from relevant passages of the report, which must plainly have been upsetting to the Applicant to read:  
“73  I am satisfied from my enquiries, that Stn O Byrne’s complaints have been addressed in a proper manner (apart from failing to respond to him in writing) and the issues raised by him cannot be regarded as harassment, either on the grounds of race or otherwise…..”
74  There is no doubt however that Mr Byrne has a very strong sense of grievance against the Authority and many of the people that work in it, either as his subordinates, peers or seniors……
75  However there are many examples of strong inter-personal conflict between Mr Byrne and those with whom he works, not just in his present posting at Edmonton but also in previous postings, particularly at Tottenham and Poplar.  Mr Byrne seems to be disliked by the majority of the staff with whom he has worked in his last three postings.  Disagreements and difficult relationships may occur from time to time between supervisors and their staff, particularly where a supervisor is seeking to change past work practices and improve behaviour and standards of performance.  By Mr Byrne’s own account, most of the difficulties he has encountered have been as a result of the reaction of staff to his attempts to bring standards up to those required by the Brigade and reflected in formal orders and instructions.  
77  During my interviews with him, I formed the view that Mr Byrne has an unshakable view that he is right and everybody else is wrong.  He was openly critical of almost everybody he came into contact with, whether they be senior staff, peers or those whom he manages ….
84  Mr Byrne has stated that he feels that the alleged harassment of him may be as a result of participation in employment tribunal claims …… I would record that the evidence Mr Byrne gave to the tribunal about the timing of his original conversation with Mr Kyte (which was material to whether Mr Kyte’s application would be regarded as within time) was described by the tribunal as “self serving and untruthful”.
85  I formed the view that Mr Byrne finds it very difficult to see things from the perspective of others.  Things are either right or wrong and for him, there seems little or no middle ground. …. From the outset, I sought to establish boundaries to the enquiries and from the outset Mr Byrne sought to widen these, either by raising new issues or by providing additional information that he though relevant.  This made my enquiries more complex and considerably extended their duration.  In the end, based on lack of evidence to support his allegations,          I formed the view that Mr Byrne was, at least in part, a vexatious complainant.”
Then there is a footnote which reads as follows:
“89  I had intended to see Mr Byrne on completion of my enquiries to inform him of the outcome.  However on 1 October I was advised by Mr Massey his FBU representative that he was unwilling to attend any further meetings with me and has requested that my findings be passed to him in writing.  It is clear that I have joined the growing list of those against whom he has a grievance.  He now wishes the issues to be progressed to elected members.  I will seek from him a clear statement of the matters he wishes the members to consider, the procedure he is seeking to use and the redress he wishes to obtain.  
90  His reasons for wishing to have no further dealings with me are:-
(i) I have made offensive, personal comments as to his personal arrangements.
…..
(iii) I was not adhering to the agreed timescale but extending the above due to irrelevant reasons …….
(v) I was not acting impartially.”

24	We have indicated the conclusion that the Tribunal reached that there was unconscious unfavourable treatment, subconsciously because of the existence of the Employment Tribunal proceeding in June 2000

25	It is quite apparent that Mr Bone knew about the existence of the Watford proceedings because of course his investigation, whose inception had antedated those proceedings, was, so far as concerns Issue 1, into the same matters as were, at least in part, the subject matter of the Watford proceedings, and they were known to him, as he accepted, shortly after the institution of his investigation.  But his investigation of the Applicant’s complaints, and indeed the nature of those complaints, ranged very considerably wider than the subject matter of the Watford proceedings, and did so at the initiative of the Applicant who wanted other matters explored.  

26	The Tribunal is, as we have indicated from the quotation from the Kamlesh Bahl case, under an obligation, not only as is clear from Zafar, to be very careful in the drawing of its inferences - see paragraph 9(d) of the Tribunal’s own Decision in which Zafar is referred to - but also to set out, as we have indicated from Elias J’s judgment, or at least consider, the other possible reasons for the unfavourable treatment, once they have identified what that unfavourable treatment is.  As Elias J says, a Tribunal cannot properly reject such potentially relevant explanations without considering them, and having a proper evidential basis for rejecting them.  

27	It is also clear from Elias J’s decision in Kamlesh Bahl, as indeed from earlier authorities, particularly Nagarajan and Khan, that the protected act need not be the only reason for the unfavourable treatment.  At paragraph 83 of Elias J’s judgment, he said as follows:
“Third, the discriminatory reason for the conduct need not be the sole or even the principal reason for the discrimination; it is enough that it is a contributing cause in the sense of a ‘significant influence’: see Lord Nicholls in Nagarajan v London Regional Transport [1999] IRLR 572 at 576”

28	The unfavourable treatment that the Tribunal found here consisted, as we have indicated, of two matters.  The first related to the Report.  The Tribunal said this about the Report, at paragraph 9(b):
“Looked at as a whole, Mr Bone’s report had the effect of brushing aside the Applicant’s complaints of racial discrimination, and it also had the effect of making it certain that the Applicant’s removal from Edmonton would be permanent.”
We interpose to say that of course by virtue of the Tribunal’s findings that the unfavourable treatment was unconscious, there was no finding that the Report was intended to have that effect, or deliberately did so.
“As indicated above, the Tribunal finds that both in the manner of its preparation and in its conclusions the report was flawed and unfair.  The Tribunal attaches particular importance to the following:-
(i) It took an unreasonably long time to prepare (even allowing for the additional matters raised by the Applicant).
(ii) Mr Bone was dismissive and unhelpful when the Applicant tried to find out what was going on.”
That is a reference to the Tribunal’s finding of fact at paragraph 6(y).
“(iii) It contained a number of significant errors.”

29	As Mr Wynter has pointed out, that is not further explained, but it must be a reference back to earlier in the Decision, and three errors, whether significant or not is another matter, can be identified on the basis of the Tribunal’s findings; the first by reference to paragraph 9(a)(viii) is the Tribunal’s conclusion that:
“Mr Bone in his Report accepted unquestioningly Mr Anthony’s account of his reasons for dealing with the Applicant in the way in which he did, as well as Mr Anthony’s surprising inability to remember whether he knew of Mr Byrne’s ethnicity or his involvement with Mr Kyte’s originating application.  He also unquestioningly accepted Mr Bishop’s explanations of his actions and his claim that he did not know that the Applicant was Irish, notwithstanding Mr Bishop’s involvement with the Samuels case.”  

Those sentences do not contain a finding in terms by the Tribunal, notwithstanding the adjectives used in relation to the “surprising inability” and the “unquestioning” acceptance, that those facts were clear, or that Mr Bone was wrong so to accept; and the very fact that the enquiry into the underlying facts with regard to Mr Anthony’s and Mr Bishop’s alleged conduct could not be carried out by this Tribunal and were the subject matter of the separate proceedings in Watford, which have still not been tried, must have made it additionally difficult for this Tribunal.  We are however prepared to accept that it is at least by inference a finding of a mistaken acceptance by Mr Bone in the Report.  

30	The second error is that referred to in paragraph 9(a)(xii) of the Decision, to which subparagraph we shall return, and to this sentence in particular:
 “Mr Bone’s evident prejudice against the Applicant appeared in the evidence which he gave that “the Applicant had encountered problems virtually everywhere he had been posted”, when in fact such problems had arisen only at three out of the Applicant’s twenty postings.”

As is clear from the quotation which we have made, this is not a reference to the Report, from which we have already quoted.  The relevant paragraph (75) of the Report does not so state; the only error that is there apparent, as pointed out by Mrs Byrne, is in the statement that the three stations at which complaints were made were the last three postings of the Applicant.  However we have the benefit of an extract from the Chairman’s Notes, very helpfully provided at very short notice by the Chairman, which records the evidence that was given by Mr Bone, namely that he “accepted that [he had] overstated [his] report in referring to all the stations at which he worked”, and that “there were difficult issues which came up at five stations”.  One way or the other, it is clear that either in the Report or in his evidence, or both, there was what might be called an over-egging of the pudding by Mr Bone in this regard.  

31	The third error plainly was an error, and that is set out in paragraph 9(a)(xiii) as follows:
“The report was wrong in suggesting that there had been no race related complaints before the Samuels incident and subsequent proceedings”
The actual position is set out in paragraph 6(e) of the Decision.  

32	We turn to the Tribunal’s other criticisms:
“9(b)(iv) Mr Bone was, during its production, privately in direct touch with Mr Bishop (quite apart from the formal interviews which he conducted).”
It must be recorded, of course, that Mr Bishop was and remained a fellow senior manager of Mr Bone, and this investigation took place over a period of some four months.  
“(v) He accepted at face value a number of statements that should have been more closely explored such as the extent of the knowledge of the Applicant’s ethnicity on the part of Messrs Bishop and Anthony”
That runs over the same ground as the alleged significant errors.
“(vi)  The focus of the report shifted, unknown to the Applicant, from an enquiry into his complaints of racial harassment into a challenging review of his management style, as a result of which the Applicant had little chance to offer any evidence to Mr Bone to rebut the conclusions which Mr Bone was reaching.”

33	That amounted, therefore, to a finding of unfavourable treatment, by virtue of an inadequate report coupled with the conclusion by the Tribunal that although the Report was, 
“on the face of it, a convincing piece of work”
[Paragraph 9(a)(vii) of the Decision]
“it did not address the meat of the Applicant’s complaints, although the manner in which the report is presented gives the appearance of a detailed investigation.”
[Paragraph 9(a)(viii) of the Decision]
34	The other respect in which Mr Bone was found to have treated the Applicant unfavourably was in relation, as we have earlier indicated, to his not being given the opportunity to be trained during the period of excused duties.  The Tribunal made a finding of fact in paragraph 6(y) of the Decision as follows:
“On 28 September the Applicant had a telephone conversation with Mr Bone to enquire the progress of his investigation.  He suggested that if he needed training he should attend the Junior Officer’s course at the Fire Service College.  Since he was still at home, excused duties, that might have seemed a sensible suggestion, but Mr Bone did not agree.  He became irritated with the Applicant and said that he had had enough of him, and that he would not waste any more resources on him, and he could tell his wife or the police to complain if he wished….”

35	At subparagraph 9(f) the Tribunal says as follows:
“Mr Bone offered no satisfactory explanation for his failure even to discuss with the Applicant the possibility of his being offered training during the extended period of “excused duties”.  The need for him to receive management training in order to address perceived shortcomings had been identified in June at the time that the Applicant was passed fit for work.  Mr Bone denied that the Applicant had asked him about attendance at the Junior Officers training course, but the Tribunal finds that the Applicant did raise the issue.  The Tribunal does not accept Mr Wynter’s submission that the Applicant being excused duties precluded discussion of the matter with him or that in his absence no programme could have been devised.  There was no reason why the Applicant should not have been invited to discuss the matter.”

36	Those are the findings of unfavourable treatment and Mr Wynter, in his Notice of Appeal, has sought to challenge those findings as perverse.  He submits that it is inconceivable that anyone reading the Report, its detailed assessment of the complaints and its detailed rebuttal of them, could say that the Report did not address the meat of the complaint; that the errors, if there be errors at all, cannot possibly be said to have been significant, even on the findings of the Tribunal, and that the statement in relation to the question of the three stations at which complaints were made against the Applicant cannot be said to evidence any real criticism of the report.  

37	Mrs Byrne has sought, so far as we needed her to do so, to challenge those propositions.  We are satisfied that it is not feasible for Mr Wynter, given the very difficult hurdle over which any appellant has to jump, where, as here before us, an appeal is only permitted on a point of law, to establish perversity of conclusion by the Tribunal, and we do not consider that his appeal can be made out on this ground.  The relevance, however, of his points is not immaterial when we come to consider the question which has been the main subject of his appeal before us and the main topic for address by both him and Mrs Byrne, namely whether the Tribunal has fulfilled its duty as laid out by Elias J, based on earlier authority.  

38	We have read the very short passage in which the Tribunal recited its conclusion that this was unconscious unfavourable treatment, subconsciously by virtue of the influence of the earlier proceedings.  Mr Wynter submits that in fact, on any analysis, it is inconceivable that the unfavourable treatment so found was a result of the protected act, or in any way caused by it.  He invites us to substitute our own conclusion to the contrary.  Mrs Byrne submits that there is sufficient in the Employment Tribunal’s Decision to indicate why and how the Tribunal came to the conclusion it did.  

39	Both of them refer to what appears to us to be a central subparagraph, and which we will read in total, although we have cited some part of it, namely subparagraph 9(a)(xii):
“Mr Bone allowed himself to become exasperated with the Applicant.  He told the Tribunal that this was because of “the inability to define the issues”.  
which we suspect means the expansion of the issues referred to by him in the passages of the Report which we have quoted.  
“He denied using the words referred to in paragraph 6(v) above”
[We suspect this must be an incorrect reference to paragraph 6(y)]
 but the Tribunal prefers the Applicant’s account of that conversation.  Mr Bone’s evident prejudice against the Applicant appeared in the evidence which he gave that “the Applicant had encountered problems virtually everywhere he had been posted”, when in fact such problems had arisen only at three out of the Applicant’s twenty postings.”

The Tribunal there make a finding that Mr Bone had become exasperated with the Applicant and that he had, as the Tribunal described it, evident prejudice against the Applicant, but that of itself, as is clear from the authorities, does not begin to amount to showing that the unfavourable treatment was due to the protected act, and indeed there is no reference to the protected act in that sub-paragraph.  

40	Mrs Byrne has referred us to the following other subparagraphs.  
“9 (a) (xi) Mr Bone was evidently much concerned that the Applicant’s complaints were an oblique way of assembling evidence for a personal injury claim against the Respondent, and he conducted his enquiry accordingly.”

The basis for that finding is unclear, given the Tribunal’s conclusion, to which we have referred, in paragraph 9(e), that any unfavourable treatment of the Applicant by the Respondent was unconscious.  It appears to hark back to a case which was obviously being made by Mrs Byrne, that this was all part of a conspiracy by Mr Bone deliberately to minimise, or drive under the carpet, the Applicant’s complaints; but the very suggestion that this was being done in order to deter a personal injury claim against the Respondent, presumably for negligently inflicted stress, argues substantially against, rather than for, a suggestion that any conduct of Mr  Bone was caused by his knowledge that there had been a protected act, or was caused by the existence of that protected act.  Subparagraph 9(a) (viii) reads as follows:
“The Tribunal has been particularly concerned to examine the conduct, and the evidence of Mr Bone.  The Tribunal finds that he conducted his enquiry in a manner more calculated to dispose of the issue than thoroughly and fairly to investigate the allegations made.  These were made against a number of colleagues whom he had known for a long time and with whom he had worked closely.  It is noticeable that during his enquiry he continued to keep in close and direct touch with Mr Bishop, one of those about whom the Applicant was complaining.  The report does not, in the Tribunal’s view, address the meat of the Applicant’s complaints, although the manner in which the report is presented gives the appearance of a detailed investigation.”
And then there is the reference to the unquestioning acceptance of Mr Anthony’s account.  That subparagraph, again so far as any conclusions can be drawn from it, suggests that the inference is that Mr Bone is, again, consciously carrying out unfavourable treatment, in order to assist, under the “old pals act”, his colleagues.  Once again, it does not appear, at any rate on its face, to support a case that the conduct was unconscious conduct, subconsciously influenced by or resulting from the launching of the Watford proceedings.  

41	The other and final subparagraph to which our attention was drawn by Mrs Byrne in this regard was 9(a)(xvi) which reads as follows:
“The Tribunal heard evidence about the Respondent’s clear and quite serious breach of the Data Protection Act, about which Mr Bone’s evidence was somewhat evasive.  Neither this, nor his concession that the Respondent’s records were “not of the best” is however, in the Tribunal’s view, of relevance in considering the complaints before it.”

Mrs Byrne sought to address us by reference to evidence which was before the Tribunal that there was a material breach of the Data Protection Act which was of relevance to the conduct of Mr Bone.  That very submission is, of course, entirely contrary to the finding of the Tribunal, which we have just read, that in its view it was of no relevance in considering the complaints before it; but even if it were of relevance it could not, in our judgment, do anything other than feed Mrs Byrne’s submission before the Tribunal, which failed, that there was deliberate conduct by Mr Bone, as part of some generalised conspiracy.  

42	It is quite plain to us that on the basis of the Tribunal’s Decision, and indeed those subparagraphs which we have just recited, there was a considerable number of explanations of Mr Bone’s conduct, some good, some bad, some indifferent.  They would include the following:
(1) He carried out a ruthless investigation which caused him to conclude, properly, that the Applicant was a vexatious complainant, that was a realistic judgment by Mr Bone and it was arrived at after full consideration.  To reach such conclusion, of course, might involve the need to know more about the underlying facts relating to the Watford proceedings.  

(2)  He allowed himself to become exasperated as the Employment Tribunal found in subparagraph 9(a)(xii) of its Decision, which we have quoted, and as supported by the passages of the Report, to which we have referred; that that exasperation was not reasonable, and resulted from an inappropriate reaction by Mr Bone to what he saw to be the conduct of the Applicant, and his constant bringing of new complaints and the stance he was taking before him and his enquiry.  

(3) The same occurred to Mr Bone as had occurred in relation to many other of the Applicant’s fellow employees, rightly or wrongly, and no doubt, from Mr Byrne’s point of view, always, as Mr Bone recorded, through no fault of his own at the various, or at any rate some of, the stations at which he had worked, the kind of rubbing up the wrong way of each other, referred to in paragraph 6 of the Decision in particular (a) (b) and (c).  

(4) A reaction by Mr Bone to Mr Byrne’s hostility to him which was becoming increasingly apparent to Mr Bone, rightly or wrongly, as recorded in his Report.

(5) Mr Bone’s inappropriate favouritism, if such there was, of his fellow employees.  

(6) Mr Bone’s desire to get rid of complaints which were causing him more and more expenditure of time in the most expedient way possible.  

Those and other explanations could be put forward, quite apart from the conspiratorial explanations which Mrs Byrne put forward and which were rejected.  They would, all of them, amount, as we see it, to a non-discriminatory explanation for what occurred.  

43	As Elias J makes plain, and we have quoted it, the existence of the protected acts does not need to be the sole or principal reason for the subsequent victimisation, but particularly where the impact is said to have been subconscious, it behoves the Tribunal, in our judgment, to carry out some analysis, and, in our judgment, it does not appear to have carried out, at any rate on the face of the Decision, any analysis to arrive at the proposition that the existence of a protected act was a substantial part, or, at any rate, a material part of the cause of what occurred, rather than one or more of the non-discriminatory explanations that were put forward by the employer, with no legal onus, in any event, lying upon the employer.  

44	We are satisfied that the right course here to take is that which is urged upon us by Mr Wynter, namely that the same Tribunal, knowing as it does, the nature of the unfavourable treatment and its limited nature, which it has found, rejecting as it has the suggestion that the conduct or motivation of Mr Bone was deliberate, should look again at whether it can support the finding that there was unconscious unfavourable treatment subconsciously as a result of the existence of the protected acts, rather than due to one or more of the explanations which we have set out, or indeed others.  That course should be carried out, plainly, as soon as possible, and would appear to need a recalling of Mr Bone to give evidence and be cross-examined, particularly now that the case of unconscious motivation and unconscious unfavourable treatment is that which alone survives, which does not appear to have been put, either in evidence or in the course of submissions, because there were no oral submissions, during the course of the original Tribunal hearing.  When and how should that be carried out? 

45	We have not mentioned up to now, and do, the cross-appeal brought by Mrs Byrne on behalf of the Applicant, and we can do so shortly.  We have indicated that the Tribunal dismissed all the claims of discrimination.  One of the claims of discrimination that was made by the Applicant related to the sending of the racially abusive note on the payslip, to which we earlier referred.  There is no doubt that that particular discrimination was before the Employment Tribunal.  It was not originally in the Originating Application, the only reference to it being by reference to the complaint made with regard to protected disclosures, but Mrs Byrne made a successful application for amendment of the Originating Application before a different Employment Tribunal Chairman in February 2002.  It was at that stage suggested, either by the Respondent or by the Tribunal it is not clear, that it would be more sensible to deal with that allegation as part of the complaints in the Watford proceedings, but Mrs Byrne correctly pointed out that the sending of the abusive payslip postdated the launch of the Watford proceedings, and therefore could not be included in them, and therefore these were the only proceedings in which the matter could be dealt with, unless there were to be some separate proceedings, which by then would have been out of time; and it was on that basis that this one complaint, which really, apart from complaints being made in relation to the pension fund, stood in a different category from the other complaints, which were largely of failure to investigate by the Respondent, was included.  

46	There is no doubt at all that the whole Employment Tribunal proceedings over nine days largely concentrated on questions of failure to investigate, or the method and manner of investigation - witness Mr Bone’s enquiry report - but there were many other complaints in relation to other employees of the Respondents, all of which were dismissed by the Tribunal.  The Tribunal, and indeed Mr Wynter of Counsel, were under the impression that the only case which was being made by Mrs Byrne on the Applicant’s behalf in relation to the payslip was of a failure adequately to investigate the sending of the payslip.  That is all that is addressed by the Tribunal in its Decision, and it rejects such suggestion.  Mr Wynter made no submissions, so far as we understand it, in relation to the substantive case of sending the envelope, nor did Mrs Byrne in her 130 page submissions.  

47	However, it is apparent that when reciting the nature of the claims, no doubt as drawn from the Originating Application, at page 3 of that very lengthy document, she sets out as follows one of the claims 
“The sending of Racist hate to the applicant and non investigation by the respondent”
Again, no doubt because of the fact that there were no oral submissions, it is apparent that that was overlooked both by the Tribunal and by Mr Wynter.  The case that Mrs Byrne, had she been a lawyer, would have made, whether it be right or not remains to be seen, would be that, on the balance of probabilities, the racially abusive handwriting was added to the payslip by an employee of the Respondent in the course of his or her employment, and either consciously or unconsciously sent in the official envelope to the Applicant, in circumstances whereby the Respondent would be vicariously liable for that unidentified employee.  Had that case been made in those clear terms, then, Mr Wynter submits, he would inevitably have sought to rely on the statutory defence in that regard, which of course did not feature in argument.  

48	It is quite clear to us that there is no question of Mrs Byrne having abandoned any such claim, it is simply that she did not adumbrate it and it was overlooked.  No question of estoppel can arise, and it is simply unfortunate that in those circumstances the Tribunal did not address it.  This is not a case in which there could simply be a straightforward question for the Tribunal to decide without further evidence, because of the need for the Respondent, at least to consider the possibility of the applicability of the statutory defence.  It is therefore a situation in which the cross-appeal must be allowed, and that short issue restored before, once again, the same Employment Tribunal for decision on the point.  

49	That leaves two issues, therefore, to be decided by the Stratford Employment Tribunal; the issue as to whether there was, and if on what basis, unconscious unfavourable treatment subconsciously by reason of the two protected acts by Mr Bone, and the issue as to whether there was discrimination by the Respondent, by virtue of the sending, as opposed to the investigation, of the abusive payslip.  

50	There is the problem of the outstanding existence of the Watford proceedings.  We have already indicated earlier in this judgment that it may be that it would need consideration as to whether the allegations of Mr Byrne are well founded, in respect of Messrs Anthony and Bishop, to have the fullest picture of the Bone enquiry, although plainly it is not an essential, nor did the matter proceed in that way at the Employment Tribunal, and we understand that there may have been at one stage an application by one side or the other for the two proceedings to be consolidated, which was refused.  We consider however that it is manifestly sensible, now that there is an outstanding matter left from the Stratford Employment Tribunal, to be decided by the Stratford Employment Tribunal that heard the rest of the case, that the Watford proceedings should be transferred to Stratford, and, if possible, provided that no material delay is caused, heard there at the same time as the balance of this claim.  

51	We understand, however, that Mr Byrne’s health is not of the best.  Mrs Byrne represented him in these proceedings, and he was called to give evidence briefly, and, of course, on any restoration now of this case, it is unlikely that Mr Byrne’s material involvement will be necessary - so far as the question of the Bone enquiry is concerned, plainly not necessary, as the spotlight will fall on Mr Bone.  So far as the cross-appeal is concerned, it may be necessary, in some relatively insignificant respects which may be capable of being dealt with by the putting in of a non contentious witness statement as to the receipt of the payslip.  But in relation to the Watford proceedings, it would appear clear that his evidence would be necessary.  If he is likely for any time longer than two to three months to remain unable to take part in Employment Tribunal proceedings, then the balance of the remitted part of this appeal should proceed in any event, not, we think, a early as December 16 presently fixed for the remedies hearing, because we rather anticipate there will need to be a further witness statement from Mr Bone, and an opportunity for consideration of the transcript of this judgment and a little further time for the parties to be ready; but certainly not that much longer, and certainly the matter should not be delayed if it is not going to be possible for the Watford proceedings to be heard within the period of three months, both because it is essential for this Tribunal’s Decision finally to be put to rest and also because the matter has been hanging over the parties, including not only Mr Byrne but also Mr Bone, for too long already.  However if, conveniently, the Watford proceedings can be dealt with in a maximum of three months, then we conclude that it is best that they be transferred to Stratford in any event, and that they then be heard at the same time as this remitted appeal.  

52	In those circumstances, and to that extent, the appeal and the cross-appeal are both allowed.-
(1) We agree that steps should be taken for the Watford case to be transferred.  
(2) This appeal should be listed for an estimated time of two days, after 9 March, at Stratford.
(3) If it is proposed to pursue the old Watford proceedings, they should be listed at the same time as this appeal in March, and Mrs Byrne must let the Tribunal and the Respondent know by 24 January, whether the Applicant intends to pursue the case or not.  If he is going to go ahead with the Watford proceedings, now transferred to Stratford, Mrs Byrne must let the Tribunal and the Respondent know by 10 January.  If it is going ahead, then the Applicant has stated that he is going to want some discovery, and it will expand the hearing date from two days to ten.