Lindsay v London School of Economics and Political Science (Race Discrimination : Direct) [2012] UKEAT 0440_11

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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Lindsay v London School of Economics and Political Science (Race Discrimination : Direct) [2012] UKEAT 0440_11_0911 (9 November 2012) URL: http://www.bailii.org/uk/cases/UKEAT/2012/0440_11_0911.html Cite as: [2012] UKEAT 440_11_911, [2012] UKEAT 0440_11_0911

Appeal No. UKEAT/0440/11/JOJ

UKEAT/0441/11/JOJ

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX

At the Tribunal

On 20 September 2012

Judgment handed down on 9 November 2012

Before

HIS HONOUR JUDGE McMULLEN QC

MR P GAMMON MBE

DR K MOHANTY JP

UKEAT/0440/11/JOJ

LONDON SCHOOL OF ECONOMICS AND POLITICAL SCIENCE APPELLANT

MS D LINDSAY RESPONDENT

UKEAT/0441/11/JOJ

MS D LINDSAY APPELLANT

LONDON SCHOOL OF ECONOMICS AND POLITICAL SCIENCE RESPONDENT

Transcript of Proceedings

JUDGMENT

HIS HONOUR JUDGE McMULLEN QC

1. This case is about discrimination, victimisation and harassment relating to race and Tribunal procedure in deciding a claim was out of time.

2. This is the judgment of the court to which all members appointed by statute for their diverse specialist experience have contributed. We will refer to the parties as the Claimant and the Respondent.

Introduction

3. There are two appeals: first by the Respondent against the finding of victimisation and secondly, by the Claimant against the dismissal of two of her direct discrimination claims taking the form of harassment. The appeals are against the judgment of an Employment Tribunal chaired by Employment Judge Woffenden sitting at London Central over 6 days in October and December 2010 and February 2011 leading to the sending of reasons on 13 June 2011. No issue is raised before us as to that sequence but we note that the written reasons were given long after the three and a half months allowed in practice to an Employment Tribunal after the close of the oral hearing. The Claimant was represented by Mr Daniel Matovu, the Respondent by Mr Shaen Catherwood, different counsel having appeared for the Respondent below. The Claimant made the claims above. The Respondent denied them and also took a jurisdiction point on time-bar.

The issues

4. The claims were made under the Race Relations Act 1976 section 1(1)(a) which is direct discrimination taking the form of harassment; and of victimisation for having done a protected act, in this case raising a grievance, contrary to s2(1). All these events took place in 2009. The issues were as follow:

“(1) Whether the respondent discriminated against the claimant on racial grounds as alleged in relation to:

(i) Mark McAleese’s comment and reference to gollywog and gollywog jam on 29 January 2009

(ii) Elizabeth Thomas’ comment that the claimant complaint ‘could get nasty’ in February 2009

(iii) Mark McAleese’s comment on the BNP sometime in or around May 2009

(iv) The decision by Mark McAleese to investigate a written complaint against the claimant under the respondent’s disciplinary procedure on 17 June 2009

(2) Whether the respondent victimised the claimant as alleged in relation to the decision to suspend the claimant for taking cakes without permission contrary to the procedure in the catering services staff handbook, money having been left in the office.”

5. The Claimant appeals against the finding against her in the harassment claims (i) and (iv) and the Respondent appeals against the victimisation finding in (2). There are thus three issues before us.

6. As to the first four complaints, the Respondent contended they were out of time but accepted the victimisation claim was within time, having been presented on 4 January 2010. A range of other complaints was dismissed or withdrawn during the proceedings. The Tribunal conducted a full hearing into all of the five complaints and upheld the Claimant’s claim of harassment in respect of the ‘gollywog’ reference but dismissed the other three. It upheld her complaint of victimisation and ordered the hearing on remedy. However, it held that the gollywog complaint was made out of time and declined to exercise discretion to enlarge time. It made no finding on time-bar in respect of the other three harassment claims, but no issue arises about that – it must be assumed the Tribunal did not find them to be out of time. At any rate, there is no ground of appeal in the alternative on this.

7. The parties appeal against the respective adverse findings in the judgment. Directions sending both appeals to a full hearing were given at a preliminary hearing by Underhill P and members. It is fair to say from the short judgment given at that hearing that the main point was victimisation and that the Appeal Tribunal recognised there were weaknesses in some of the arguments but was not prepared to split them up and make separate decisions. An order was made for notes of certain parts of the evidence and it was agreed that the Respondent could advance an additional ground in respect of the gollywog complaint as a reason for the Tribunal’s dismissal of it.

The legislation

8. The legislation is not in dispute. The Race Relations Act provides as follows:

“1 Racial discrimination

(1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if –

(a) on racial grounds he treats that other less favourably than he treats or would treat other persons;

2 Discrimination by way of victimisation

2(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; 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

(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;

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

3A Harassment

(1) A person subjects another to harassment in any circumstances relevant for the purposes of any provision referred to in section 1(1B) where, on grounds of race or ethnic or national origins, he engages in unwanted conduct which has the purpose or effect of -

(a) violating that other person’s dignity, or

(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him.

(2) Conduct shall be regarded as having the effect specified in paragraph (a) or (b) of subsection (1) only if, having regard to all the circumstances, including in particular the perception of that other person, it should reasonably be considered as having that effect.”

9. The jurisdiction to hear claims is preceded by s.68 relating to timing:

“68 Period within which proceedings to be brought

(1) An employment tribunal shall not consider a complaint under section 54 unless it is presented to the tribunal before the end of –

(a) the period of three months beginning when the act complained of was done;

(6) A court or tribunal may nevertheless consider any such complaint or claim which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.

(7) For the purposes of this section –

(a) when the inclusion of any term in a contract renders the making of the contract an unlawful act, that act shall be treated as extending throughout the duration of the contract; and

(b) any act extending over a period shall be treated as done at the end of that period;”

10. Section 54A provides for a reverse burden of proof but no issue arises in this case on its application. It does not apply to victimisation claims. Neither s.54A nor any of the authorities on it was cited by counsel on appeal, indicating no issue arises in relation to it.

The facts

11. The key actors in this drama who gave evidence to the Employment Tribunal are John Barrett, the Residences Catering Manager, Mark McAleese, Chef Manager at the Respondent’s hall of residence Passfield Hall, Elizabeth Thomas, Head of Catering, Jackie Beazley, the Respondent’s Deputy Head of Catering and the Claimant who describes herself as black Afro-Caribbean. Mr McAleese is white. The Claimant was appointed at the LSE’s Passfield Hall in central London as an Assistant Chef Manager on 4 September 2006. Ms Thomas chaired the selection panel. The Claimant applied for the post of Chef Manager but she was unsuccessful and Mr McAleese was appointed. They worked together several days a week.

12. On 26 January 2009 an incident occurred which we have called the gollywog incident. Mr McAleese had used that term when the two of them were together in the kitchen. The Claimant was upset, Mr McAleese apologised. The Tribunal came to this conclusion:

“15. We have concluded that on the balance of probabilities on 29 January 2009 Mr McAleese used the word ‘gollywog and ‘gollywog jam’ during a discussion in the kitchen with the claimant. It was common ground between them that the claimant had become upset and Mr McAleese had apologised to her. However, we accept his evidence that the context in which he had used the words was the change to the label of Robertson's jam, as he explained in his statement to Mr Barrett. Although his statement to Mr Barrett refers to the ‘doll’ and he denied using the word ‘gollywog’ or ‘gollywog doll’ in his investigatory interview with Ms Beazley on 29 October 2009 and denied using the word ‘gollywog’ at all in his witness statement, Mr Barrett recalled in his investigatory meeting with Ms Beazley on 22 October 2009 that Mr McAleese had said the word ‘gollywog and that what he had said was wrong and he would not do it again. He subsequently attended the diversity course that Mr Barrett proposed as a resolution to the complaint made by the claimant without demur. The claimant was unable to explain how the remarks she alleged had come about but did recall the link of the word ‘gollywog’ to ‘jam’ in her contemporaneous complaint of 3 February. We have concluded that, although he used the words alleged in her presence, he did so when their backs were to each other in the kitchen environment and, due to his manner of speaking, she did not hear or did not understand the context in which he said them, and formed the view that he had directed them at her. He had apologised when he realised how upset she was. We have concluded that for a white manager to use the word ‘gollywog’ and ‘gollywog jam’ in the course of a conversation with a black Afro Caribbean colleague is unwanted conduct. Although Mr McAleese did not do so with the purpose of violating the claimant's dignity or creating an intimidating hostile degrading or offensive environment for her, it had that effect having regard to all the circumstances, including in particular the perception of the claimant. The immediate effect on her was evidently short-lived since she found no reason not to ask Mr McAleese, the perpetrator, if her daughter could work with him that same weekend and told Mr Barrett she was alright. Having then decided to make a complaint, she did not choose to pursue a formal route despite the advice of Ms Thomas and by 18 February 2009 had agreed with the course of action proposed by Mr Barrett and was happy not to take matters further. Thereafter she was able to continue working with Mr McAleese and did not raise the matter again until faced with a disciplinary investigation into her conduct by Mr McAleese.”

13. This was the subject of a complaint to the Tribunal which was dismissed in the following way:

“20. We have concluded that the Gollywog comments constituted an isolated act of harassment by Mr McAleese in January 2009. There is no link between it and the act of victimisation when the claimant was suspended on 28 October 2009. There was therefore no continuing act for the purposes of section 68(7)(b) of the RRA. We do not consider it just and equitable to extend time to consider that complaint. The grievances she raised referred in terms to racism and we heard no evidence that her lengthy absences from work prevented her from presenting her claim in time. The delay is a lengthy one for which she has given no adequate explanation and she has failed to act promptly.”

14. A comment made by Ms Thomas in February 2009 and by Mr McAleese around May 2009 were issues (ii) and (iii) but were dismissed and are not appealed, so we say nothing more of them.

15. The next relevant issue is a decision by Mr McAleese to investigate a written complaint made on 17 June 2009 against the Claimant. The circumstances were these:

“5.14. On Sunday 15 June 2009 the claimant called Mr McAleese on his mobile phone to report that she had been sworn at by a member of staff (Mr Diaz) over the weekend. He was not at work that day and asked her to put it in writing. He did not have in mind at that point the need for a disciplinary investigation because no formal complaint had yet been made

5.15. On 16 June 2009 he returned to work and spoke to the claimant who reiterated what she had said to him in her telephone call. At that point she had not put anything in writing, nor did she say she wanted to make a formal complaint. However, later that day he was informed by Ms Beazley that one of the staff members (Mr Diaz) had made a written complaint about being sworn at by the claimant and asked him to commence an investigation. There was also a witness statement from another member of staff, Alex. He told the claimant about this the same day and on 17 June handed her a letter asking her to attend an investigation meeting on 26 June. He told her that both complaints would be investigated separately. She was concerned about whether this would go on her record and he sought the advice of the respondent's HR team about this on 19 June 2009. 0n 23 June the claimant gave Mr McAleese two statements made by her about the events on 13 and 14 June 2009 in which she set out her complaints about the behaviour of the members of staff (Mr Diaz and Alec). Mr McAleese was not in work on 24 and 25 June and made arrangements to meet with Ms Hunt of the Respondent's HR team on 26 June so that he could get some advice about how to deal with the claimant's complaints. He did not meet with her until 29 June by which time the claimant had sent Ms Hunt a grievance of 23 June 2009 because (as she said in cross examination) she felt it ‘did not look right’. His investigation was suspended pending the outcome of the investigation into her grievance.

5.16. The claimant's grievance was headed ‘Re Grievance in relation to racism endured at work’ and she complained….

5.17. On 2 July 2009 Ms Hunt wrote to her to tell her the grievance would be investigated by Ms Beazley and that, since she had made allegations of racism against Mr McAleese, the disciplinary investigation which had been commenced by him would be postponed until the grievance was investigated.”

16. On this complaint the Tribunal came to the following conclusions:

“18. The claimant compares herself with the two employees whose complaints against her were immediately investigated while hers was not. Mr McAleese had asked her to put her complaint in writing and she had not done so. In contrast without complaining orally first the other employees did put their complaint in writing which prompted the initiation of an investigation under the instructions of the respondent's HR team. If Mr McAleese can be criticised it is for not being proactive in securing a written complaint from the claimant who was obviously sufficiently upset by the events of the week end to contact him at home but we do not conclude that he took the decision to investigate the complaints of the other employees was less favourable treatment of the claimant on racial grounds on racial grounds. It was a result of timing of receipt of a written complaint and before he had the chance to seek HR support about what to do about her complaint (a matter of a few days after he had commenced the Investigation) the investigation was stopped.”

17. The third relevant complaint (number (2)) in the appeals is what we call the cakes incident. The Tribunal upheld the Claimant’s complaint, and this is the subject of the appeal by the Respondent, that the Respondent victimised the Claimant in respect of the cakes incident based upon the Claimant having registered a grievance under the Race Relations Act on 23 June 2009. The Claimant ordered cakes for herself and they were delivered on 22 October 2009. It was common ground that money had been left in the office. She left work with the cakes. Mr McAleese sent an email to Mr Barrett on the subject of “stealing”. An investigation was set up. The Tribunal found:

“5.30 In Mr Barrett’s absence, Mr McAleese spoke to Ms Thomas on 28 October. She did not see Mr McAleese’s email to Mr Barrett herself. Ms Thomas decided that Mr McAleese could not be involved as an investigator. She decided to appoint Mr Hawkins (a Unit Catering Manager) to investigate the concern Mr McAleese had raised because he was a manager of a higher grade than the claimant and not involved with any other matters concerning her. When Mr Barrett went to see Ms Thomas on his return to discuss Mr McAleese’s email he found that he had already rung her.

5.31 On 28 October Mr Hawkins and Ms Thomas went to Passfield Hall together. On the way she explained the situation as Mr McAleese had explained it to her. The claimant was on duty at the counter. Mr Hawkins had never undertaken an investigation for the respondent before. Ms Thomas (who had brought someone with her to take over from the claimant on the counter) asked to speak to the claimant concerning an allegation. They went into the nearby office and Ms Thomas introduced Mr Hawkins. She then left. Mr Hawkins suspended the claimant for taking cakes without permission. The claimant was very upset.

5.32 He wrote to her on 29 October to confirm she had been suspended on full pay and to ask her to attend an investigatory meeting with him on 3 November. He told her the allegation was that she took two cakes from work without the prior permission of her line manager and in doing so did not follow the correct procedure for personal purchases as outlined in the LSE Catering Staff Information Handbook. He also recorded that she said to him that she had asked Mr McAleese for permission to order them, he had given her permission, they had been ordered and she had left the money on the counter for him to collect when he returned to work because he was not in on the day she took them. He said the purpose of the suspension was to enable a full investigation to take place and to allow the investigation to be carried out as smoothly as possible and to minimise the stress she might feel while the investigation is taking place.”

18. It is the suspension of the Claimant in relation to the cakes incident which was the basis of the victimisation claim. The Tribunal’s conclusion was this:

“19. The protected act for the purposes of section 2(1)(d) of the RRA was the claimant's grievance of 23 June 2009. Ms Thomas did not seek any advice from HR although she was aware that the claimant had raised a grievance and that her deputy was questioning both Mr Barrett and Mr McAleese. We did not hear from Mr Hawkins about why he took the decision to suspend the claimant. She and Mr Hawkins went together to Passfield Hall and we find it more likely than not that Mr McAleese had told her about the money on the desk since he had set this out in his email to Mr Barrett. She had already put in place arrangements needed to enable the claimant's duties to be assumed immediately by another chef. There was no need for the investigation to commence immediately before service. The claimant gave Mr Hawkins a version of events which was entirely consistent with that given by Mr McAleese and therefore passed (or ought to have been passed) by Ms Thomas to Mr Hawkins when she explained the position to him so that he could have taken it into account when deciding whether to suspend or not. Although it is not untypical for an employer to suspend an employee suspected of stealing, Ms Thomas agreed that suspension depended on the circumstances of the case and an employee would not be suspended unless the matter was very serious. We conclude that an employee who was known to have taken cakes home and said that money had been left for them whose manager had confirmed that money had indeed been found would not have been suspended as the first step in an investigation. The suspension of the two employees was in relation to allegations of theft not of the rules set out at 5.25 and followed the rejection of their initial explanation. There was no evidence before us as to why Mr Hawkins chose to reject the explanation which was immediately given to him given by the claimant. We consider that the suspension of the claimant immediately prior to service was less favourable treatment even though suspension may be a neutral act and we conclude on the balance of probabilities that the decision to suspend the claimant had been taken by Ms Thomas before and irrespective of any explanation from the claimant and that she took that decision by reason of the protected act.”

19. A case management discussion and a remedy hearing were scheduled in relation to that matter.

The parties’ submissions and our conclusions

1. The gollywog comment

20. Mr Matovu on behalf of the Claimant contends that the Employment Tribunal wrongly failed to exercise its discretion to extend time in order that this complaint could be heard. There is no ground of appeal against the finding by the Tribunal that it was a one-off act. He acknowledges that the Tribunal expressly directed itself in accordance with the guidance on the just and equitable jurisdiction following Keeble [1997] IRLR 336. His principal submission is that the Tribunal did not consider the relative prejudice to the parties, which he contends is a requirement following Baynton v South West Trains Ltd [2005] ICR 1730 paras. 52-52. He further contends that the Tribunal did not consider whether it was possible to have a fair trial, relying on DPP v Marshall [1998] ICR 518 at 528.

21. Mr Catherwood points to the limited right of an appeal court to intervene in the exercise of discretion in such a case: Robertson v Bexley Community Centre [2003] IRLR 434 CA at para. 24. He also contends that the Tribunal had found that the Claimant had put the incident behind her and she “was happy not to take the matter further”. As a matter of substance, the Tribunal had made a finding on the Claimant’s case in her favour and so the issue of a fair trial was simply academic.

22. We prefer the argument of Mr Catherwood. The Claimant was certainly upset by the comment and as is shown by the finding, succeeded in her complaint as to its nature. Given the subsequent history of the relationship, the Tribunal’s decision not to extend time on the grounds that it was not just and equitable to do so was one within its discretion which should not lightly be interfered with. Given the self-directions following Keeble it cannot be said that the Tribunal did not consider the prejudice to the Claimant.

23. Nor can it be said that it was necessary to consider whether a fair trial was possible. This is an illogical submission for the Tribunal did conduct a trial of this issue and indeed upheld the Claimant’s complaint. It therefore was well aware that the Claimant was to lose the opportunity to achieve a declaration and a remedy, and had lost the value of the finding which it had just made in her favour. In addition to the features set out in Keeble, the Employment Tribunal was entitled to give considerable weight to the fact that the Claimant had put this matter behind her. The decision to refuse the application to extend time was one which was open to the Tribunal to make. It directed itself correctly on the law, made appropriate findings and its discretion would not be interfered with.

24. In the light of that, it is not strictly necessary for us to deal with the submission by the Respondent that there was no harassment in any event and that the finding in the Claimant’s favour was an error. The correct approach is set out in Richmond Pharmacology v Dhaliwal [2009] IRLR 336 at para. 7:

“(1) The unwanted conduct. Did the respondent engage in unwanted conduct?

(2) The purpose or effect of that conduct. Did the conduct in question either:

(a) have the purpose or

(b) have the effect

of either (i) violating the claimant’s dignity or (ii) creating an adverse environment for her? (We will refer to (i) and (ii) as ‘the proscribed consequences’.)

(3) The grounds for the conduct. Was that conduct on the grounds of the claimant’s race (or ethnic or national origins)?

[…]

22. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by … offensive comments or conduct… it is also important not to encourage a culture of hypersensitivity or the impression of legal liability in respect of every unfortunate phrase.”

25. It is plain from the above guidance that the finding of what constitute the ingredients for this tort is utterly fact sensitive. All of the steps under the statute require an evaluation of the circumstances and the impression on the claimant. In our judgment, all of the elements were met in this case. The use of the term itself, by a white manager to a black female junior, and the upset it caused her all establish the correctness of the Tribunal’s finding of direct harassment on the ground of race. If it had been necessary for our decision, we would have dismissed this ground of appeal by the Respondent.

2. Investigating the written complaint

26. Mr Matovu contends the Tribunal failed to deal with the central point of the Claimant’s case which is that the decision of Mr McAleese to be proactive about the complaints made by two subordinate employees about the Claimant’s conduct was followed by a disciplinary investigation, yet when she complained against them, they were not invited to a disciplinary investigation. It is contended the Claimant does not know why her complaint about this was not upheld by the Tribunal since its findings as to the timing of the respective complaints is inadequate. The two employees’ complaints against her were made in writing on 17 June 2009 and her complaints against them were made orally on 15 and 16 June and later in writing on 23 June 2009.

27. In our judgment the Tribunal has made adequate findings as to the reason for the apparently disparate treatment. The circumstances were not truly the same: the Claimant had not put her complaint in writing until after the two employees did so. But she had made a grievance and on 29 June 2009 the investigation into the complaints against her was stopped because of the grievance she had lodged. The decision of the Respondent to focus upon the grievance of the Claimant as a matter of priority was one which apparently appealed to the Tribunal as being sensible. The decision of Mr McAleese was said by the Claimant to be an act of direct discrimination on the grounds of her, the other two employees not being black. We see no error in the Tribunal’s dismissal of this contention. It directed itself correctly on the law and made findings which explain the apparently separate treatment of the two employees and of the Claimant. The Tribunal was alert to the burden of proof. It plainly accepted the Respondent’s explanation.

3. The cakes incident

28. The cakes incident requires application of the law relating to victimisation. It is important to recognise that the reverse burden of proof does not apply to an allegation of victimisation on the ground of having made a protected act under the Race Relations Act. In London Borough of Islington v Ladele [2009] IRLR 154 Elias P at paragraph 40 said this:

“The explanation for the less favourable treatment does not have to be a reasonable one; it may be that the employer has treated the claimant unreasonably. That is a frequent occurrence quite irrespective of the race, sex, religion or sexual orientation of the employee.”

29. It is a continuation of the learned Judge’s approach in the Law Society v Bahl [2003] IRLR 640 at paragraph 94, upheld by the Court of Appeal in [2004] IRLR 799 in the following terms:

“…in an area where the drawing of inferences is central, it is essential that the ET sets out with the utmost clarity the primary facts from which any inference of discrimination is drawn. It is particularly important that the ET takes care to explain how it has made a finding of unconscious discrimination: see Governors of Warwick Park School v Hazelhurst [2001] EWCA Civ 2056, per Pill LJ at paragraphs 24-25 and Shamoon, per Lord Hutton at paragraph 86.”

30. The principal argument of the Respondent against this finding of victimisation is that the Tribunal made what Elias J in Law Society v Bahl described as “a wholly unacceptable leap”. The leap was to join the protected act in June 2009 to the decision to suspend in October. Mr Catherwood draws attention to the material which was available to the Respondent’s managers in relation to the taking of the cakes which was that: the Claimant did not obtain Mr McAleese’s permission, money had been left but not handed to him, the payment did not go through a cashier’s till, a receipt had not been obtained, the goods were not listed in the book, all in breach of the rules relating to staff purchases.

31. He further contends that the Tribunal’s reasoning as to who made the decision to suspend is inconsistent. In one place in paragraph 19 the Tribunal attributes the decision to Ms Thomas; twice in paragraph 19 and once in paragraph 5.31 the Tribunal attributes the decision firmly to Mr Hawkins. That the decision was taken by Mr Hawkins and not by Ms Thomas is consistent with the notes of her evidence ordered by Underhill P for the purposes of this full hearing. That ought to be a simple solution to this issue: Mr Hawkins had nothing to do with the June 2009 grievance which constituted the protected act. Nevertheless, if his association with Ms Thomas is what is invoked, we accept the submission of Mr Catherwood that the grievance had been made four months before the decision to suspend, the grievance was not against Ms Thomas and she did not investigate it and the highest the Tribunal put it was that she was “aware” of it.

32. The substance of the suspension is breach of the rules. What difference it would make to the decision maker that the money for the cakes was left was hardly explored except as a hypothesis. Ms Thomas did not know what she would have done had she been aware of this fact. Yet it is said there is insufficient examination by the Tribunal of the reasonableness of the decision to suspend for breach of the rules. Unreasonable conduct by an employer, failure to adhere to its own rules and out of character behaviour are all matters which might lead to an inference that a decision has been made which is victimisation for a previous protected act.

33. Here however, none of the rules was complied with and even if the money had been left, Ms Thomas’ account was that she did not know what she would have done in such circumstances. The central point in a finding of discrimination had to be that the suspension was because of the protected act. It did not matter whether the rules were reasonable or over strict but only that the suspension was by reason of the breach of the rules and in no way connected to the protected act. That in our judgment is where Mr Catherwood is correct in asserting that the Tribunal has made a leap. Leaving the money available might be thought by some to mitigate or even disarm the criticism of the Claimant, but if Mr Hawkins alone or in concert with Ms Thomas, or if Ms Thomas alone had decided to suspend because of the breach of the rules or even because Mr McAleese had labelled it stealing, it could not be said that it was because the Claimant had made the grievance in June.

34. Ms Thomas gave evidence as to why she took with her to Passfield Hall another person who could do the Claimant’s duties. In our judgment that adds nothing to the question of whether the decision to suspend was for having done the protected act. She told the Tribunal that at the stage in the evening when meals were being served, even a short conversation to discuss with the Claimant the circumstances of the cakes would cause disruption.

35. The Tribunal in paragraph 19 cited above rejects the comparators who were suspended following allegations of theft but it did not go on and construct a hypothetical comparator. Had it done so, it should have addressed the Respondent’s argument that a person of the Claimant’s seniority (No. 2 in the kitchen) facing an allegation of taking food without permission and contrary to the rules, was the appropriate comparator.

36. In our judgment the conclusion in paragraph 19 above contains errors in analysis and application.

Disposal

37. It follows that we dismiss the Claimant’s appeal. We allow the Respondent’s appeal against the victimisation finding. We are not able ourselves to make the decision and regrettable as it is for this matter to have to go back to a Tribunal, it is the only fair conclusion since we are not in a position to make the critical findings and draw inferences. The Tribunal must direct itself in accordance with the approach in the above judgment. It will no doubt be helped by constructing a hypothetical comparator and if it does not it must be alert to the fact that there may be a difficulty in focusing on the correct issue. It must also make a clear decision as to who made the decision to dismiss and whether it was because of the grievance raised by the Claimant on 23 June 2009 and if so, explain what factors connect the grievance and the suspension.

38. We are very grateful to both counsel for their careful submissions.

39. Now that we have upheld most of the case determined by the Tribunal, we see no reason why the case should not be remitted on victimisation alone to the same Employment Tribunal. Both parties won and lost before it. Two of its findings against the Claimant were not appealed. Two have been dismissed by the Tribunal and dismissed on appeal and the Respondent’s appeal on victimisation has been allowed to that extent. We have no doubt the Tribunal can deal professionally with reconsidering its approach to victimisation. It will probably wish to hear evidence and will certainly wish to hear submissions and the directions for the further conduct of the case can be given by it.

United Kingdom Employment Appeal Tribunal