daley v serco
TRANSCRIPT
Appeal No. UKEAT/0086/09/RN
EMPLOYMENT APPEAL TRIBUNAL58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At the TribunalOn 14 April 2009
Judgment handed down on 7 January 2010
Before
HIS HONOUR JUDGE SEROTA QC
MR C EDWARDS
MR J MALLENDER
MR F DALEY APPELLANT
SERCO HOME AFFAIRS LTD AND OTHERS RESPONDENTS
Transcript of Proceedings
JUDGMENT
Copyright 2010
APPEARANCES
For the Appellant MR J SYKES(Representative)Messrs R C Hall SolicitorsGibson House 800 High RoadTottenhamLondon N17 ODH
For the Respondent MS M TETHER(of Counsel)Instructed by:Messrs DLA Piper UK LLP SolicitorsVictoria Square House Victoria SquareBirmingham B2 4DL
UKEAT/0086/09/RN
SUMMARY
UNFAIR DISMISSAL: Constructive dismissalRACE DISCRIMINATION: Direct
The Claimant’s appeals against the Employment Tribunal’s conclusions on the issues of
constructive dismissal and four specific allegations of discrimination on the grounds of race
failed on the facts. The Employment Tribunal had adequately set out the facts it found and
explained the reasons for its findings.
UKEAT/0086/09/RN
HIS HONOUR JUDGE SEROTA QC
Introduction
1. This is a full hearing of an appeal by the Claimant from a decision of the Employment
Tribunal at London South (Employment Judge Stacey presiding). The decision was sent to the
parties on 25 July 2008. The Employment Tribunal dismissed all of the Claimant’s claims for
unfair dismissal (constructive dismissal), victimisation and harassment on the grounds of race,
and disability discrimination. The Respondents were his former employers and seven former
employees of the First Respondent Employer. The Claimant’s case was that the Respondents
acted in concert to discriminate against him on racial grounds, to victimise and harass him. The
Employment Tribunal had to consider approximately 30 specific allegations of alleged
discriminatory conduct.
2. The Claimant issued four separate sets of proceedings that were considered by the
Employment Tribunal:
(a) 17 October 2006 alleging discrimination on the grounds of race.
(b) 29 December 2006 alleging unfair dismissal, disability discrimination,
discrimination on the grounds of race, breach of contract and unauthorised
deduction from wages.
(c) 9 February 2007 alleging discrimination on the grounds of race.
(d) 25 December 2007 alleging discrimination on the grounds of race and disability.
3. The hearing before the Employment Tribunal lasted some 15 days, together with a reading
day. The Employment Tribunal considered the matter for three days in chambers and its
judgment extends to 189 paragraphs over 43 pages. The Claimant’s Notice of Appeal extends
to 26 pages and raised allegations of bias on the part of the Employment judge and challenged
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many of the factual conclusions of the Employment Tribunal. On 24 October 2008,
HHJ Ansell disposed of the appeal under rule 3(7) of the Employment Appeal Tribunal Rules
of Procedure. However, on 29 January 2009, Slade J allowed the Claimant’s application under
rule 3(10) in part and directed that there should be a full hearing of the appeal, in relation to the
issue of constructive dismissal and four specific allegations of discrimination on the grounds of
race. As we have said the grounds of appeal included allegations of perversity and failure to
give adequate reasons. The allegations of bias and all other grounds were disposed of by
Slade J who directed that no further action be taken upon those parts of the Notice of Appeal.
The Factual Background
4. The Claimant is of Afro-Caribbean ethnicity. The Respondent provides custody services to
HM Prisons. On 9 August 2004, the Claimant joined the Respondent initially as a trainee
Prison Custody Officer for a six month period, followed by a further probationary period of six
months.
5. The Claimant’s role was to transfer prisoners from police stations and prisons to court. His
duties included providing custodial care of prisoners at court in a caring and humane manner
while adhering, at the same time, to the requirements of good security. He was also responsible
for transporting prisoners to prisons in accordance with the courts’ instructions. We assume
that it is axiomatic that the highest standards of conduct are required of persons acting as Prison
Officers.
6. The Claimant asserted that he had been subject to discriminatory conduct from
approximately October 2004. It is unnecessary for us to set out all the allegations made by the
Claimant as these were rejected in terms by the Employment Tribunal based upon its findings
of fact. I do not propose to summarise those allegations. We observe that the course of the
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Claimant’s employment was not incident free and included a formal grievance brought against
him by a female fellow employee upset by his behaviour. We are bound to observe that the
findings of the Employment Tribunal do not reflect well at all on the Claimant and make
unhappy reading.
7. The Employment Tribunal rejected the Claimant’s evidence; it found that after the
complaint made against him, on 18 April 2005, he became less co-operative at work and
non-compliant with instructions from his manager. His evidence in certain regards was bound
to be “inherently implausible”; see for example paragraph 30.
8. At paragraph 46 the Employment Tribunal found as at July 2005:
“He was becoming increasingly hard to manage and his behaviour had developed from non compliance to outright aggression and hostility towards his managers especially Ms Fade and Ms Head. He would not communicate effectively with them and seek their permission when required or comply with their reasonable management instructions
Following the visit to Greenwich Magistrate’s Court Mr Daley wrote to Ms Fade (p167) complaining that her behaviour constituted harassment and that he would be contacting her manager regarding the incident and referred to a message he had left on her voicemail when he had vented his frustrations. On this occasion, as with others which we shall describe in due course, Mr Daley had responded to a legitimate query from his manager with an aggressive and sustained response both verbally and in writing coupled with a threat to report her to more senior managers and external authorities. This is a pattern that repeated itself throughout the course of his employment. He alleged breach of the Data Protection Act in this example, but does not appear to have made a complaint to the Information Commissioner. Again it is a pattern that we shall see develop, of his asserting that he will take matters further and involve external agencies and then fail to do so.”
9. The Employment Tribunal clarified with the parties 30 specific allegations upon which his
claims for discrimination, victimisation and harassment were based. In relation to his claim for
unfair dismissal, at paragraph 11, the Employment Tribunal noted:
“The Claimant brings an allegation of constructive dismissal, alleged to be unfair contrary to Section 98 Employment Rights Act 1996 (ERA 1996). The allegations and incidents relied on in support of the alleged fundamental breach of the Claimant’s contract by the Respondent is limited to the allegations listed in the agreed issues set out above.”
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10. As we have already noted only 4 of the 30 allegations (all of which were found against the
Claimant) form part of this appeal. The first of those (although not the first chronologically) is
to be found at 6:17:
“By allegedly failing to pay the Claimant company sick pay for a period of illness from November 2005 to January 2006.”
11. This allegation was dealt with by the Employment Tribunal at paragraphs 149-150. The
Claimant’s complaint was that he did not receive discretionary sick pay after he had used up his
contractual entitlement. The Employment Tribunal noted that the Claimant had several lengthy
periods of sickness from November 2005 - January 2006 and complained about his level of sick
pay. The Employment Tribunal explained that a Director of Human Resources and
Development (Ms Hamilton) had considered that the contractual provisions had been met. The
Claimant was involved in an incident with a prisoner, one Winston Eubank, in July 2006. He
returned to work following this incident. On 9 October 2006 he produced a sick note from his
doctor, which stated he was suffering from a stress-related problem but did not link this to any
physical injury or the incident with Mr Eubank. Nevertheless, the Respondent decided to
exercise discretion and grant him contractual sick pay following a complaint by the Claimant.
However the Respondent (at a higher level) concluded that the Claimant was not entitled to sick
pay because it was not satisfied that his absence was solely due to a physical injury sustained by
an assault from Mr Eubank and there were no reasons to relax the rules in the Claimant’s case;
see paragraph 152. The Claimant appealed against this decision and lodged a grievance which
was not upheld, nor did the Claimant exercise a right of appeal. He subsequently complained
about sick pay and his grievance was upheld following a meeting in May 2007.
12. The next allegation is to be found at 6:7:
“That on 18 April 2006 the Respondent conspired with Sophia Joannou to have the Claimant falsely arrested and detained.”
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Ms Joannou was an employee of HM Court Service at Greenwich Magistrate’s Court.
13. In his application of 17 October 2006 (page 80) the Claimant alleged:
“On Tuesday, 18 April I was illegal [sic] detained by Serco at Greenwich Magistrates Court without a warrant for my detention. Pat Rodal and Jennine Buttler was present whom are senior [sic] members of staff. Procedures were not followed and I have requested a copy of their policy and procedures for detaining a prisoner in custody in which I was told they have no policy and procedures.”
The Employment Tribunal deal with this matter at paragraphs 67-79. The Claimant had
incurred fines at South Western Magistrate’s Court which he had not paid and had not appealed
against within the applicable time limits. He received a summons to attend South Western
Magistrate’s Court, did not attend and a bench warrant was issued for his arrest following his
failure to attend a means inquiry on 11 April 2006. The warrant was not backed for bail. The
Employment Tribunal, noted at paragraph 67:
“For the avoidance of doubt we should explicitly state that we find as a fact that the warrant was issued.”
14. On 17 April 2006 the Claimant was rostered to take overnight prisoners from police
cells to Greenwich Magistrate’s Court. The Claimant had previously attended Greenwich
Magistrate’s Court on 29 November 2005 when he had been arrested and bailed in the court
building. It was a term of his bail that he should attend Greenwich Magistrate’s Court on
11 April 2006. This was both told to him and confirmed in writing by a letter from the court;
see paragraph 68. On 11 April 2006 he failed to attend Greenwich Magistrate’s Court, and as a
result a warrant was granted and the authority sent to South West Magistrate’s Court to
generate a warrant to be circulated through the police national computer. Mr Daly was
apparently unaware that a warrant had been issued. Mr Daly generally attended Southwark
Crown Court as he had the appropriate driving licence for the 12 cell van but he was, on
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occasions, asked to attend Greenwich Magistrate’s Court depending upon the Respondent’s
operational requirements. The Employment Tribunal was satisfied:
“That it was operational requirements alone that led him to be allocated Greenwich Magistrate’s Court on 18 April. We did not accept that the allocation run had been deliberately changed and Mr Daly somehow entrapped into attending Greenwich Magistrate’s Court where he would, as we shall discover in a moment, be arrested.”
15. Ms Joannou was the enforcement officer at the court. On 18 April 2006, she saw
Mr Daly, recognised him and informed the police liaison officer of the existence of the arrest
warrant, not backed for bail. Ms Joannou also informed Ms Janine Butler (a supervisor, senior
custody officer for the First Respondent) that the warrant was to be executed. Ms Butler asked
for time to contact her manager and asked that the Claimant’s arrest be delayed until she had
arrived at court. Her request was granted. The manager, Ms Rodal, ensured as far as she
could, the Employment Tribunal found, that Mr Daly be arrested as discreetly and privately as
possible; see paragraph 73. She checked with the police liaison officer that he needed to
execute the warrant and he confirmed that he did and Ms Rodal accepted his word:
“She does not see it as her role to question a police officer’s authority and would have accepted his assertions that a warrant had been issued and needed to be executed no matter what race, ethnic or national origin of the individual concerned. She focused on how the process could be undertaken with least embarrassment to Mr Daly.”
The Employment Tribunal noted how she had attempted to mitigate the embarrassment and
distress that the arrest might cause the Claimant. She was found to have acted as sensitively as
possible and with courtesy and respect. She also arranged for the Claimant to be brought to a
closed court without members of the public being present to hear the process in front of the
magistrates:
“... and somehow managed to persuade the authorities to close the court for Mr Daly.”
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The Employment Tribunal found that Ms Rodal considered it necessary to follow the
procedures to the letter while maintaining the Claimant’s dignity insofar as possible. She was
not authorised to dispense with the normal procedures:
“... and would have treated anybody in a similar manner.”
She also arranged for the Claimant to be placed in a cell in an area away from normal prisoners
while they waited for the hearing to commence.
16. The Claimant was ultimately given a 28 day prison sentence suspended for 2 years. He
has never brought any claim against the police or the court in respect of this matter.
17. We are bound to note that the Claimant appears to have made light of the gravity of his
conduct. It is an extremely serious matter for someone working in the prison system to have
had to be brought before the court as the Claimant was and ultimately given a suspended
sentence of imprisonment.
18. The Employment Tribunal also noted:
“In spite of the strenuous efforts made by Ms Rodal, Mr Daley was very indignant about his treatment and failed to accept or appreciate that Ms Rodal was simply following procedures given the fact that Mr Daley had been arrested for breach of court orders and non appearances. At this point Mr Daley resolved to leave Serco and considered that he no longer had any trust and confidence in the organisation. It was, for him, a point of no return.”
The Claimant was suspended from operational duties on 20 April pending an investigation into
his arrest.
19. The next allegation relevant to this appeal is 6:19:
“By failing to progress the Claimant’s grievance dated 26 May 2006 relating to his arrest on 18 April 2006 (as at the date on which he presented his second claim on 29 December 2006).”
UKEAT/0086/09/RN7
20. The Claimant wrote to Ms Rodal and raised a grievance in relation to his arrest on
18 April 2006, by letter dated 21 May 2006. He then wrote a further letter to Mr Cull on
23 May 2006 seeking various documents relating to his arrest and asserting he could not
proceed in the absence of those documents. The Employment Tribunal found, however, that
the Claimant did not lodge any grievance on 26 May 2006 (see paragraph 84 of the Decision).
Any alleged delay in dealing with the grievance addressed to Ms Rodal on 21 May 2006 was
not pleaded as an act of discrimination and the advocate appearing on behalf of the Claimant,
Mr Sykes, did not pursue that issue in his cross-examination of Ms Rodal.
21. The fourth allegation of discrimination is 6:23:
“Respondent’s denial of the existence of the VAR trip sheet for 18 April 2006.”
The Employment Tribunal was satisfied (and indeed it was uncontroversial) that a VAR trip
sheet for 18 April 2006 outlining the Claimant’s duties that day had been created. That slip
would have contained movement details. The whereabouts of this document were unknown. It
was not before the Tribunal. The Respondent accused the Claimant of having taken it and the
Claimant accused the Respondent of suppressing it. It was common ground that records of the
Respondent’s Banbury base were stored in Solihull. Mr Daly had requested the sheet from
Mr Cull in his letter of 23 May 2006 and Mr Cull had replied to state that the information could
be requested from the administrator at the base. The relevant base for this purpose was that at
Woolwich and the Employment Tribunal found that the Claimant did not ask for the trip sheet
from the Woolwich base.
22. The Employment Tribunal did not find that the Respondent had denied the existence of
the trip sheet.
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23. During the course of the hearing before us, we were informed by Ms Tether who
appeared on behalf of the Respondents and had appeared before the Employment Tribunal, that
during the cross-examination of the Claimant it became apparent that he had in his possession a
large number of original trip sheets for April 2006 which she submitted had been unlawfully
removed from the Woolwich base. These documents had not been disclosed by the Claimant
during the disclosure process but were produced in the middle of his cross-examination from a
bag. They were shown briefly to Ms Tether who (after looking at them briefly) returned them
to Mr Sykes on the understanding that she could inspect them more carefully in due course.
The documents were never produced to her again.
24. It is perhaps helpful to explain the further chronology relevant to these proceedings. An
investigation took place into the Claimant’s arrest on 18 April and the investigation also looked
into his alleged failure to notify his managers of his court appearances. These led to
disciplinary proceedings being initiated in May 2006 against the Claimant resulting in the
Claimant being issued with a final written warning. The Claimant appealed and on appeal, the
sanction was reduced to a first written warning.
25. A further disciplinary process took place as a result of an accident that occurred when
the Claimant was driving a multi-cell prison van on 29 June 2006. It is instructive to have
regard to the findings of the Employment Tribunal at paragraph 99:
“Ms Rodal convened a disciplinary hearing in accordance with the procedure at which Mr Daley was accompanied by his representative, Gerry Walsh. He was notified of the hearing by letter of 14 June and the hearing took place on 29 June 2006. At the hearing, Mr Daley aggressively challenged Ms Rodal’s suitability to judge the case and repeatedly asked for a more senior manager and accused Ms Rodal of bullying him. He was high handed and arrogant during the meeting. Ms Rodal resisted Mr Daley’s request. It was her job as his line manager to conduct the disciplinary and she was undertaking it as fairly as she could. Ms Rodal has a very mild and gentle manner and is courteous and soft spoken. She is measured, thoughtful and calm. We believe that her manner was such at the disciplinary hearing on 29 June 2006. Mr Daley refused to view the CCTV footage with Ms Rodal at the hearing and after 25 minutes, without engaging in the substantive issues, he walked out of the hearing refusing to play any further part (we find the notes at p542 to be accurate).”
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26. On 21 July 2006 the Claimant played the central role in the recapture of Mr Eubank, an
escaped prisoner. He was congratulated by managers. He claimed that he had not been given
any formal certificate or presentation. The Employment Tribunal rejected any suggestion that
his treatment was discriminatory.
27. On 12 September 2006, following a complaint by a cyclist in relation to the Claimant’s
driving of a van, a further disciplinary hearing took place. Again the Claimant was issued with
a final written warning but he subsequently appealed.
28. A further incident took place involving Mr Eubank in which the Employment Tribunal
found that the Claimant was making threats or encouraging others to assault Mr Eubank in
revenge. This led to yet further disciplinary proceedings and to the Claimant’s summary
dismissal on 20 October 2006.
29. Then the Claimant appealed also in relation to the final warning given to him as a result
of the complaint by the cyclist. The penalty was reduced to a written warning. The appeal in
relation to the assault was allowed on the basis that the officer responsible for the appeal was
not satisfied on the evidence of misconduct on the part of the Claimant. He was reinstated with
back pay from 20 October 2006.
30. The Claimant did not return to work on 27 November 2006. He raised further
grievances claiming that the conduct of the Respondent could eventually lead to his
constructive dismissal. He resigned on 26 July 2007.
The Decision of the Employment Tribunal
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31. The Employment Tribunal firstly identified the issues. We have already referred to the
30 issues identified and agreed by the parties. It identified the claims of discrimination contrary
to the Race Relations Act 1976, and claims for disability discrimination. As we have already
observed, the 30 allegations and incidents identified and agreed upon by the parties were relied
upon in support of the Claimant’s case that there had been a repudiatory breach of his contract
by the Respondent.
32. The Employment Tribunal considered express contractual terms then went onto deal
with the 30 specific allegations. Having considered the factual allegations, the Employment
Tribunal went on to consider the law in relation to discrimination on the grounds of race
including harassment and victimisation. The Employment Tribunal directed itself as to the law
in an uncontroversial manner. It also had regard to the reverse burden of proof set out in
section 54A of the Act. The Employment Tribunal also reminded itself of the guidelines set out
in Igen v Wong [2005] IRLR 258, as reiterated in Madarassy v Nomura International [2007]
IRLR 246.
33. The Employment Tribunal then went on to direct itself as to the law on unfair dismissal.
The Employment Tribunal having directed itself in relation to section 95(1)(c), the
Employment Rights Act 1996, in relation to constructive dismissal, continued:
“In this case the Claimant relied on breach of the implied term of trust and confidence and the allegations in all the matters listed as live issues set out above in support of an alleged fundamental breach of express and implied terms. The case was argued as so called ordinary unfair dismissal pursuant to s.98 ERA 1996, as well as dismissal as direct race discrimination, race victimisation and race harassment and disability discrimination.
For the purposes of establishing constructive dismissal, the claimant must prove on the balance of probabilities, that there has been a fundamental breach of contract which goes to the root of the contract of employment entitling the Claimant to consider himself discharged from any further obligation forthwith. We must analyse whether the Claimant left as a result of any such fundamental breach as might have been found, or for some other, unrelated reason. An employee must not delay unreasonably and by so doing inadvertently affirm any repudiatory conduct.
The doctrine of last straw may apply. In such cases the final straw does not of itself need to amount to a breach of contract when viewed in isolation, but the tribunal may consider the totality of the conduct of the Respondent.”
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34. After consideration of the parties’ submissions, the Employment Tribunal came to its
conclusions. We are not concerned with the conclusions in relation to disability discrimination.
35. It is important to note that the Employment Tribunal having considered the detail of the
Claimant’s allegations reminded itself (especially in relation to the discrimination claim) that it
was necessary to understand the larger picture and that the complaints, as alleged, constituted a
continuing course of conduct from which it was invited to infer and consider a pattern of
discrimination from the chronology and abundance of evidence before it.
36. We find it helpful to set out the Employment Tribunal’s conclusions on constructive
dismissal:
“Constructive dismissal is argued as disability discrimination, race discrimination and race victimisation as well as so called ordinary unfair dismissal. The starting point however is whether there had been a dismissal in accordance with s95(1)(c) ERA 1996.
In this case as is clear from our findings of fact, from the unequivocal evidence of Mr Daley in response to questions from the panel and Ms Tether, he decided that the employment relationship was at an end on the day of his arrest at Greenwich Magistrates Court on 18 April 2006. That was the final straw for him and he repeated this evidence on several occasions. The evidence was surprising, so the Tribunal repeated the question to be clear. Mr Daley reiterated that as far as he was concerned the employment relationship was at an end then. He had reached the point of no return as he told us he believed that the Respondents had engineered his arrest that day.
He did not however resign until over 15 months later on 26 July 2007. His delay is fatal to the claim. It also leads us to conclude that Mr Daly was utterly cynical in his dealings with the Respondent from 18 April 2006 onwards. It calls into question his motivation and purpose in raising the numerous grievances, complaints and issues thereafter, which is not necessary for us to consider for the purposes of this decision, save to reiterate that he was not constructively dismissed within the meaning of s95(1)(c) ERA 1995. Absent a dismissal, the allegation cannot succeed in the context of any of the DDA, RRA or ERA provisions.
But even if Mr Daley could overcome the problem, more fundamentally still, the Claimant has not established any breaches of contract by the First Respondent (whether fundamental or otherwise). The express contractual terms have been complied with concerning all the allegations, for example, the wearing of trainers, entitlement to sick pay, suspension and the handling of disciplinary proceedings.
We also considered whether the implied duty of trust and confidence had been breached in this case. Of particular concern to Mr Daley was how he came to be sent to Greenwich Magistrates Court on the day he was arrested. He suspected it had been deliberately manoeuvred so that he would be arrested and humiliated. If that had indeed been the case it would undoubtedly raise questions of trust and confidence, but we are satisfied that it was not the case. There was ample evidence before us that a warrant for Mr Daley’s arrest, not backed for bail, had been issued several days before his actual arrest. Such a warrant can be executed anywhere and requires the police officer to take the person
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named in the warrant to court, from anywhere. There is therefore nothing special in Mr Daley’s being at Greenwich that day. This was a central and significant flaw in the Claimant’s argument. The issue of the warrant was nothing to do with the Respondent - it was to do with Mr Daley’s failure to attend court when summonsed and his failure to pay off any of his fines in the meantime. If the Respondent knew of the warrant for his arrest, they could have tipped off any police officer anywhere of Mr Daley’s whereabouts and contrived a far more public and humiliating arrest and court appearance. The careful and sensitive way in which Ms Rodal treated Mr Daley on his arrest, suggests the opposite: that the Respondents were doing everything they could to minimise the undoubted embarrassment factor for him.
If the Respondents were out to get Mr Daley - the essence of the allegation of breach of the term of trust and confidence, they did not make a very good job of it. Our conclusions below about the various disciplinary hearings and appeals are equally apt here, in the context of constructive dismissal. The obvious and, in our view, correct inference is that they were not.”
37. In relation to race discrimination and victimisation, the Employment Tribunal stood
back from the detail of the allegations. It is helpful to set out the Employment Tribunal’s
conclusions:
“Let us stand back a moment from the detail of the allegations. In the 3 year period that Mr Daley was at work, the Respondent received a complaint of sex harassment by him from Ms King; he failed to inform his managers about numerous Court appearances which resulted in his arrest and conviction resulting in a 28 day prison sentence suspended for 2 years (the maximum period of suspension permitted); complaints by other members of staff; complaints from a cyclist member of the public of being abused by him; he refused to wear the proper footwear or provide medical evidence as to why trainers were necessary; he made constant complaints against every manager who sought to manage him, especially the female managers; he was involved in a road traffic accident whilst driving a 12 cell prison van; and, he was alleged to have incited colleagues to undertake a revenge attack on a prisoner.
The incidents set out above are not comprehensive. The suggestion that the allegations were somehow fabricated was preposterous on the evidence before us. In relation to some of the allegations Mr Daley unwittingly corroborated the management case. For example in relation to his abuse of the cyclist - he admitted telling him to get on his bike and deliberately cutting off the cyclist in the cycle lane so that he was forced to dismount.
Contrary to the assertions of the Claimant, the Respondents have made strenuous efforts to keep a clearly wayward, uncooperative and hard to manage employee within their employment, notwithstanding his behaviour and performance difficulties. His behaviour towards his line managers was rude and aggressive and he failed to take reasonable directions from them. This can be seen from the tenor of his correspondence at the time; it was also apparent to us in the way the Claimant gave his evidence and the way he spoke of them in disparaging and unpleasant terms; and through his body language and demeanour of contempt towards them when they were giving their evidence. He clearly had no respect for them, a lack of respect which he did not seek to hide either during his employment or afterwards, and he spent considerable efforts thwarting their attempts to manage him.
It is the Claimant’s case that the Respondents acted in concert together to discriminate against him on racial grounds, to victimise him and to harass him. Such an interpretation is not supported by the evidence. Much play is made of the successful appeals Mr Daley brought against decisions by his line managers. We note there has been confusion in the management of Mr Daley. But the confusion has been wholly to his advantage as he sought to exploit and undermine his line managers by appealing to more senior, male, officers who would, on occasion overturn decisions by less senior managers. The conclusion to be drawn from this is not, however, of a conspiracy, as alleged, but the opposite. It demonstrates fair mindedness that Mr Leonard overturned previous disciplinary sanctions, as did Mr McPherson on occasion. Had the Respondents been
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acting in concert to discriminate against or harass Mr Daley, there would have been less confusion and more consistency of decision making.”
38. The Employment Tribunal took, for example, the claim of constructive dismissal on
grounds of race. It observed that the First Respondent had plenty of grounds on which to
dismiss the Claimant for misconduct (his having been given a sentence of imprisonment, albeit
suspended, being just one example) yet he was not dismissed. Further, when he did eventually
resign, the First Respondent urged him to reconsider. The Employment Tribunal considered if
they had been trying to secure the Claimant’s exit they would not have given him the chance to
change his mind.
39. The Employment Tribunal, although concerned about his conduct with Mr Eubank, did
not consider there was anything to link this “one off decision of lowly officers at a separate and
different region of the First Respondent to Woolwich with other events”. In any event, the fact
of the contact did not excuse the Claimant’s request to colleagues to attack Mr Eubank in
retaliation. This, in the opinion of the Employment Tribunal:
“Demonstrates Mr Daley’s failure to take responsibility for his own actions and seek to blame everyone but himself.”
40. The Employment Tribunal went on to consider that Ms Rodal had been fully entitled to
conclude that Mr Daley had driven through a red traffic light outside HMP Belmarsh, whereas
Mr Daley’s response to the disciplinary charge:
“Was to challenge Ms Rodal’s authority to hear the disciplinary proceedings against him - to seek to deflect the charges by aggressive tactics.”
41. The final conclusions of the Employment Tribunal were:
“There is nothing from the evidence that we have heard - either direct or from which inference can be drawn - to suggest that Mr Daley had been treated less favourably on grounds of race, victimisation or that he has been harassed, as defined in relation to any of his many allegations. The burden of proof has not shifted in relation to any one of the
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allegations made by Mr Daley. Furthermore, the alleged detriments and incidents of less favourable treatment, acts and omissions relied on were all explained on non-racial, non-victimisation and non-harassment grounds. Had the burden of proof shifted and if it were necessary for the Respondents to explain themselves, then they have more than adequately done so. The management actions taken against him, such as they were, were wholly unexceptional and predictable responses to his behaviour and we are satisfied that anyone of a different racial group, or who had not made a complaint of discrimination, who had behaved in the way the Claimant behaved, would have been treated no more favourably.
Our findings of fact on each allegation are set out above. In none of them has the burden of proof shifted, and, in any event, in relation to each of them the Respondent has shown a non-racial, non-victimisation and non-harassment reason for their treatment. We accept that the Claimant has performed a protected act by 21 November 2005.”
42. In the circumstances the claims were dismissed in their entirety against each of the
Respondents.
Grounds of Appeal
The Claimant’s Submissions
43. In relation to the appeal against the dismissal of the claim that the Claimant had been
constructively dismissed, the Claimant submitted that the reasoning of the Employment
Tribunal was inadequate and the decision perverse. The Claimant challenges the finding by the
Employment Tribunal as to the events of 18 April 2006 when he was arrested, the events at
Greenwich Magistrates Court; and his decision to leave the First Respondent in due course,
because he allegedly came to the view that he no longer had any trust and confidence in the
First Respondent. As the Employment Tribunal put it at paragraph 77, “It was for him a point
of no return”. The Employment Tribunal returned to this matter as we have already noted at
paragraph 175 when the Employment Tribunal, “from the unequivocal evidence of Mr Daley in
response to questions from the panel and Ms Tether” decided that the employment relationship
was at an end on the day of his arrest and that was the final straw for him. He is said to have
repeated this evidence on several occasions. The evidence, the Employment Tribunal said
(paragraph 175), was surprising so the Tribunal repeated the question to be clear and Mr Daley
reiterated that so far as he was concerned the employment relationship was at an end then. He
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had reached the point of no return as he told the Employment Tribunal that he believed the
Respondents had engineered his arrest that day.
44. It was submitted to us that the Claimant’s evidence was that the incident, although
humiliating, did not lead him to consider resigning until his grievance 28 November 2006. It
was submitted that the Employment Tribunal had failed to consider whether the implied term of
mutual trust and confidence and matters relative to its breach went beyond 18 April 2006. It is
said the Employment Tribunal should have considered matters that occurred after that date and
that it had failed to have regard to the material sequence of events. These matters included the
pre-resignation grievance relating to sick pay on 29 December 2006; the grievance hearing of
13 April 2007; the grievance decision of 30 May 2007 which led to his resignation on 27 July
2007. The Claimant’s evidence was that he had resigned because of a totality of all of the
matters of which he complained.
45. Mr Sykes submitted that the Employment Tribunal’s reasoning did not identify every
separate head of the claim and that having regard to the decision of the Court of Appeal in
English v Emery Reimbold [2002] EWCA Civ 605, the Employment Tribunal was required to
consider separately each incident.
46. Mr Sykes also draw our attention to Rule 30(6N) of the rules of Employment Tribunal
Rules for Procedure 2004 which required reasons to be given by an Employment Tribunal for
any of its decisions.
47. It was further submitted the Employment Tribunal had failed to consider if the First
Respondent broke the Claimant’s contract by racist acts and it was, in any event, perverse to
UKEAT/0086/09/RN16
find that the employment relationship ended on 18 April 2006 because the Claimant’s
employment had clearly continued after that date.
48. The second grounds of appeal relate to Item 6:7, 6:17, 6:19 and 6:23. In relation to 6:7
(the alleged conspiracy with Ms Joannou to have the Claimant falsely arrested and detained) the
Claimant attacks factual findings by the Employment Tribunal and suggests that it “invented”
evidence that he had driven to Greenwich Magistrates Court on the previous day, 17 April
2006. It was submitted that the evidence supported his claim that there had been a concerted
rescheduling of his usual trip so as to take him to Greenwich Magistrates Court on 18 April
2006, but there was evidence indicating a switch of route on the morning of 18 April 2006
having come from the head office at Banbury. There was no referral to a custody sergeant in a
police station where the Claimant could apply for bail. The Employment Tribunal is criticised
for seeking to evade “the plainly unlawful detention” by asserting, contrary to law, that the
Claimant did not need to go through the police custody process as he was arrested by a bench
warrant not backed for bail and was already in the precincts of the court. It was asserted that
the Employment Tribunal had misunderstood or misconstrued the law relating to bench
warrants. We were not, however, directed to any authority supporting this submission.
49. In relation to Item 6:17 (failure to pay sick pay between November 2005 to January
2006) it is asserted that the First Respondent’s witnesses admitted that the certificate produced
by the Claimant, (which was to the effect that he had physical injuries) which the Claimant
asserts by reasonable inference resulted from Mr Eubank’s attack on him, was evidence of
injuries sufficient for discretionary payment. The evidence that those witnesses had not seen
the certificate was “unlikely evidence as well as convenient and self-serving. The Tribunal did
not refer to that evidence.” There was no explanation as to why the First Respondent’s action
was not discriminatory on the grounds of racism. In relation to 6:19 (failure to progress the
UKEAT/0086/09/RN17
Claimant’s grievance of 26 May 2006) no specific criticism in this regard is made in the Notice
of Appeal.
50. In relation to 6:23 (the First Respondent’s alleged denial of the existence of a VAR trip
sheet for 18 April 2006) it is submitted that the Employment Tribunal should have accepted the
Claimant’s case that the First Respondent had failed to produce the sheet.
51. It was submitted generally that the Employment Tribunal’s failure to reach conclusions
on these matters showed that it did not find there was a non-racial explanation and accordingly
the burden of proof should have shifted. The Employment Tribunal, it was submitted, failed to
provide an adequate explanation in relation to any of the four matters to which we have
referred.
52. The Claimant sought in additional submissions to rely on the decision in
Bournemouth University v Buckland UKEAT/0492/08 of 8 May 2009 which was published
after close of submissions. In that case HHJ Clark held that the reasonable range of responses
test had no place in determination of the question of whether there had been a constructive
dismissal. The Respondents submitted there was no suggestion that the Employment Tribunal
had misunderstood or misapplied the well known principles set out in
Western Excavating v Sharp [1978] ICR 221; we agree with that submission and the
Employment Tribunal has sufficiently summarised the principle at paragraph 162.
Respondent’s Submissions
53. In relation to the question of constructive dismissal, Ms Tether submitted that at
paragraph 175 of its decision the Employment Tribunal concluded on the basis of the
Claimant’s clear evidence he had regarded the employment relationship as at an end on the day
UKEAT/0086/09/RN18
of his arrest at Greenwich Magistrates Court in the sense that the Claimant regarded the First
Respondent as having broken the implied term of trust and confidence and that he was
thereafter seeking an opportunity to leave. So far as he was concerned that was the final straw.
The Employment Tribunal did not, however, Ms Tether submitted, find that the employment
relationship ended in fact in April 2006 and the Employment Tribunal was simply observing
that the Claimant had at that date resolved to leave the Respondent because he no longer had
any trust and confidence in the organisation. The Employment Tribunal was, however, justified
in finding on the Claimant’s evidence that he had affirmed the contract of employment after 18
April.
54. The Employment Tribunal also concluded that there had been no breaches of the
implied term of trust and confidence. The Employment Tribunal was entitled to conclude that
the Claimant was “utterly cynical” in his dealings with the Respondent after 18 April and that
his motivation and purpose in raising numerous grievances, complaints and issues thereafter
was in question.
55. The Employment Tribunal found that the Claimant had failed to establish any breaches
of contract including any breaches of the implied term of trust and confidence and that analysis
included matters arising after 18 April. We note that in reply Mr Sykes submitted that the
Employment Tribunal appeared to have elided matters relied upon in support of the allegations
of breach of contract and those relating to discrimination. He submitted that discrimination and
breach of contract are totally different and the Employment Tribunal was wrong to hold that its
findings as to discrimination should apply in relation to the claim for breach of contract and
breach of the implied term.
UKEAT/0086/09/RN19
56. Ms Tether submitted that the pre-resignation grievance of 29 December 2006 in relation
to the refusal to grant sick pay and the “rejection” of that grievance on 30 May 2007 were not
identified as matters relied upon to support a claim of constructive dismissal. These were
defined at 6:24 as limited to the allegations listed in the 30 agreed issues.
57. In any event, the Claimant’s grievance was partly upheld and he was paid more than the
maximum to which he was entitled. Although there was no medical evidence to support the
physical injury, in the medical certificate relied upon by the Claimant, the rejection of the
Claimant’s grievance could not contribute to or cause a breach of contract.
58. The Employment Tribunal did not at paragraph 176 state that it ignored matters
occurring after 16 April. Neither did it say that it that it was unnecessary to consider the merits
of the issues raised by the Claimant as opposed to his motivation and purpose in raising them.
59. The Employment Tribunal accepted the Claimant’s evidence that he regarded the events
of 18 April as being the last straw, but it went on in any event to find that there had been no
breach of contract in relation to subsequent matters. In this regard our attention was drawn to
the Claimant’s submissions to the Employment Tribunal at 109/110 of page 224 in the bundle.
60. Particular matters arising after 18 April are those to be found at issues 6:22 and 6:29 and
issues related to sick pay; see paragraphs 153/154. In relation to these specific items; so far as
6:7 was concerned (alleged conspiracy with Sophia Joannou) the Claimant maintained he had
been “falsely” arrested and detained; the Employment Tribunal found as a fact that a bench
warrant had been issued for his arrest. The Employment Tribunal also on the evidence before it
rejected the Claimant’s contention that there had been a concerted re-scheduling of his
assignments to take him to Greenwich Magistrates Court on 18 April 2006. It found also that
UKEAT/0086/09/RN20
the Respondent’s conduct was not racially motivated (see Employment Tribunal paragraph 73
to 76). Ms Tether asked forensically what else the Employment Tribunal could say after its
findings. Any employee would have been treated in a like manner.
61. In relation to 6:17 (the alleged failure to pay company sick pay for a period of illness
from November 2005 to January 2006) the Employment Tribunal found the scheme was
correctly administered and there was no suggestion that employees of a different ethnic group
would have been treated any differently. The Employment Tribunal also found that the
Claimant had exhausted his contractual sick pay rights.
62. In relation to 6:19 (failure to progress the Claimant’s grievance of 26 May 2006 relating
to his arrest on 18 April 2006) Ms Tether submitted the Employment Tribunal found that no
such grievance was lodged on 26 May 2006; see paragraph 86 of the decision. A grievance had
been sent to Ms Rodal on 21 May 2006 but the delay in dealing with that grievance was not
pleaded as an act of discrimination and the point was not raised with Ms Rodal in cross-
examination.
63. In relation to allegation 6:23 (alleged denial by the Respondent of the existence of the
VAR trip sheet for 18 April 2006). Ms Tether submitted that the existence of the trip sheet was
not denied. The Claimant had asked for the sheet from the human resources manager Mr Cull
who told him he could obtain it from the administration at the base at Woolwich but the
Claimant never asked for it.
64. As we have already said, during the Claimant’s cross-examination it became apparent
that he was in possession of a large number of trip sheets for April 2006 which the Respondent
maintained he had unlawfully removed from the Woolwich base. Ms Tether was shown the
UKEAT/0086/09/RN21
documents for a brief period only and although she wished to inspect them in greater detail she
was never afforded the opportunity to do so.
65. We now turn to consider the law and we start by considering our general approach to the
decision of the Employment Tribunal.
66. We have in mind the guidance offered by Elias J in Aslef v Brady [2006] IRLR 576 at
paragraph 55:
“The EAT must respect the factual findings of the employment Tribunal and should not strain to identify an error merely because it is unhappy with any factual conclusions; it should not "use a fine toothcomb" to subject the reasons of the Employment Tribunal to unrealistically detailed scrutiny so as to find artificial defects; it is not necessary for the Tribunal to make findings on all matters of dispute before them nor to recount all the evidence, so that it cannot be assumed that the EAT sees all the evidence; and infelicities or even legal inaccuracies in particular sentences in the decision will not render the decision itself defective if the Tribunal has essentially properly directed itself on the relevant law.”
67. In relation to the extent of reasons given by the Employment Tribunal, in our opinion it
is necessary to view the decision as a whole. Further, what matters is the substance of the
Employment Tribunal’s judgment looked at broadly and fairly to see whether the reasons given
for the judgment is sufficiently expressed to inform the parties as to why they won or lost as the
case may be; see Stewart v Cleveland Guest [1994] IRLR 440.
68. In UCATT v Brain [1981] ICR 542, Donaldson LJ stated:
“…Industrial Tribunals' reasons are not intended to include a comprehensive and detailed analysis of the case either in terms of fact or law…their purpose remains what it has always been, which is to tell the parties in broad terms why they lose or, as the case may be, win. I think it would be a thousand pities if these reasons began to be subjected to a detailed analysis and appeals were to be brought upon any such analysis. This, to my mind, is to misuse the purpose for which reasons are given.”
UKEAT/0086/09/RN22
69. Mr Sykes urged upon us the judgment of Lord Phillips MR in English v Emery
Reimbold and Strick Limited [2002] EWCA Civ 605 (30 April 602) in which he said at
paragraph 15:
“There is a general recognition in the common law jurisdictions that it is desirable for Judges to give reasons for their decisions, although it is not universally accepted that this is a mandatory requirement – “there is no invariable rule established by New Zealand case law that Courts must give reasons for their decisions”, per Elias CJ in Lewis v Wilson & Horner Ltd [2000] 3 NZLR 546 at 565. While a constant refrain is that reasons must be given in order to render practicable the exercise of rights of appeal, a number of other justifications have been advanced for the requirement to give reasons. These include the requirement that justice must not only be done but be seen to be done. Reasons are required if decisions are to be acceptable to the parties and to members of the public. Henry LJ in Flannery observed that the requirement to give reasons concentrates the mind of the Judge and it has even been contended that the requirement to give reasons serves a vital function in constraining the judiciary’s exercise of power – see Professor Shapiro’s article ‘In Defence of Judicial Candor’ (1987) 100 Harv L Rev 731 at 737. The function that judgments play under the common law in setting precedents for the future has also been identified as one of the justifications for the requirement to give reasons, although as Mahoney JA stated in Soulemezis v Dudley Holdings (1987) NSWLR 247 at 273:
“The court’s order is a public act. The judgment given for it is a professional document, directed to the parties and to their professional advisers. It may, in a particular instance, delineate, develop or even decorate the law but that is peripheral and not essential to its nature.”
We would put the matter at its simplest by saying that justice will not be done if it is not apparent to the parties why one has won and the other has lost.”
70. Lord Phillips went on to make clear the extent of the reasons given would depend on the
nature of the case and that there was no need for the Employment Tribunal to deal with every
argument presented by advocates in support of their case. It was necessary, however, to have
regard for the fact that the judgment must enable the appeal court to understand why the
original court had reached its decision and he concluded at paragraph 18:
“This does not mean that every factor which weighed with the Judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the Judge’s conclusion should be identified and the manner in which he resolved them explained.”
UKEAT/0086/09/RN23
71. We also have regard to Rule 30(6N) of the Employment Tribunal Rules of Procedure
2004:
“Written reasons for a judgment shall include the following information -(a) the issues which the tribunal or Chairman has identified as being relevant to the claim;…(c) findings of fact relevant to the issues which have been determined;(d) a concise statement of the applicable law;(e) how the relevant findings of fact and applicable law have been applied in order to determine the issues.”
72. As this is a perversity appeal we remind ourselves of what Mummery LJ said in
Yeboah v Crofton [2002] EWCA Civ 794:
“Such an appeal ought only to succeed where an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached. Even in cases where the Appeal Tribunal has "grave doubts" about the decision of the Employment Tribunal, it must proceed with "great care", British Telecommunications PLC –v- Sheridan [1990] IRLR 27 at para 34.”
Conclusions
73. Broadly speaking we have accepted the Respondents’ submissions. In relation to the
issue of constructive dismissal, we firstly note that there is no material to justify the submission
that the Employment Appeal Tribunal misapplied the principles set out in
Western Excavating v Sharp . For completeness we set out the relevant extract from the
judgment of Lord Denning MR (1978 ICR 221 at 226):
“A significant breach going to the root of the contract of employment; or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract; then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer's conduct. He is constructively dismissed. The employee is entitled in those circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once. Moreover, he must make up his mind soon after the conduct of which he complains: for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract.”
74. It is clearly inappropriate to go through the decision with a fine toothcomb and, as we
have already said, it is not necessary for the Employment Tribunal to make findings on every
UKEAT/0086/09/RN24
factual issue before it. The facts found by the Employment Tribunal make clear that the
Claimant was an extremely difficult employee and the Respondent’s management of him was
poor. The Respondent’s management appeared to have been afraid by reason of a fear of facing
allegations of discrimination, to manage his misconduct effectively.
75. The findings of the Employment Tribunal as to the conduct of the Respondent at
paragraph 187 underpin the decision. The Employment Tribunal are clearly well aware of the
distinctions between the elements needed to prove discrimination on the grounds of race, and
breaches of contract. Nevertheless, the same factual allegations were relied upon by the
Claimant to support both claims (see item 6:24). All factual issues that were material were
found against the Claimant and the Employment Tribunal at paragraph 177 found that no
breaches of contract (whether fundamental or otherwise) were made out; that express
contractual terms were complied with concerning all the allegations. Paragraph 177 of the
Employment Tribunal, when read with paragraphs 179 and 180, shows that the Employment
Tribunal did consider matters arising after 17 April and that it came to its conclusions there had
been no discriminatory conduct and no breaches of contract, having stood back from the
evidence; see paragraphs 180 and 187 to 188.
76. The Employment Tribunal clearly did consider all 30 allegations and, having rejected
much of the Claimant’s evidence, was entitled to conclude plainly that there had been no
breaches of contract and that there had been no discriminatory behaviour on the part of the
Respondents.
77. The Employment Tribunal did not find that the employment relationship ended in April
2006. The Employment Tribunal accepted the Claimant’s own evidence that so far as he was
concerned the events of 18 April 2006 had completely destroyed his trust and confidence in the
UKEAT/0086/09/RN25
Claimant. On the findings of the Employment Tribunal the Respondent had not destroyed the
Claimant’s trust and confidence; if anything it was the Claimant’s conduct that placed him in
breach of contract. It followed that the Claimant affirmed his contract of employment, and
even had there been earlier breaches of contract (which there were not) they could only be
resurrected so as to speak, by further conduct on the part of the Respondent that went to the
implied term of trust and confidence; again the Employment Tribunal found there were no such
breaches. We note that the Claimant appears to be making rather light of the fact that he had
committed criminal offences, failed to pay fines and had failed to attend court when required to
do so and had been the subject of a warrant not backed for bail. In our opinion the judgment as
a whole sufficiently complies with Rule 32 and the requirements set out in cases such as
English v Emery Reimbold and Meek v City of Birmingham District Council [1987] IRLR
250.
78. We shall now turn to deal with the four specific matters, in respect of which it is said
that the Employment Tribunal failed to give sufficient reasons or that its decision was perverse.
We start with 6:7 (alleged conspiracy with Sophia Joannou). This is an impossible submission
on the facts as found by the Employment Tribunal, especially as the warrant under which the
Claimant was arrested was expressly found not to have been backed for bail by the Magistrates
Court.
79. No authority has been put to us to suggest that the Claimant should have been brought
before a Custody Sergeant on his arrest; we very much doubt whether a Custody Sergeant has
authority to grant bail when someone has been arrested on a warrant issued by a Court, which is
not backed for bail and which requires the person arrested to be brought before the Court.
UKEAT/0086/09/RN26
80. The Employment Tribunal found that the Claimant’s duties had not been deliberately
rescheduled. If anything, the evidence suggests that the First Respondent treated the Claimant
with great sensitivity and consideration having regard to his conduct and the failure to inform
the Respondent of the criminal proceedings. We are unable to see how the findings of the
Employment Tribunal could be characterised as perverse, nor do we see how it can be said the
Employment Tribunal has failed to give adequate reasons for its decisions.
6:17 (Sick Pay)
81. There is nothing to suggest the Respondent’s conduct was racially motivated whether to
raise any possible inference of discrimination or at all. There is no evidence that persons of
different ethnicity were treated any more favourably or that the Claimant was treated any less
favourably. The Employment Tribunal found that the Respondent had correctly applied its
scheme and that the Claimant had exhausted his sick pay rights. We also have regard to the
general finding of absence of discriminatory conduct at paragraph 187 of the decision.
6:19 (Progression of Grievance)
82. The Employment Tribunal found there was no grievance dated 26 May 2006. The issue
was not raised with Ms Rodal to whom an earlier grievance had been expressed. Any delay in
considering that grievance was not an issue that required to be determined as one of the 30
issues identified by the Employment Tribunal. It has not been suggested that there has simply
been a mistake as to the date of the grievance.
83. Even were there simply to have been a mistake as to the date, there is nothing to suggest
any discriminatory intention on the part of the Respondents. The Claimant does not seek to rely
upon any comparator and the Claimant, from the findings of the Employment Tribunal, was
wholly at fault for the incident leading to his arrest.
UKEAT/0086/09/RN27
84. Again we remind ourselves of the Employment Tribunal’s findings that there have been
no breaches of contract nor acts of discrimination and that the Claimant raised the grievance
cynically and with questionable motivation and purposes. The Employment Tribunal was
certainly entitled on the facts that it found to come to that conclusion.
6:23 (Denial of Existence of VAR Trip Sheet)
85. We assume that if the appropriate facts as to the Respondent’s alleged motivation were
proved, a denial of the existence of the VAR sheet might be an act of victimisation. However,
there is no evidence to support that suggestion. The evidence suggests when the Claimant
sought a VAR sheet he was referred by Mr Cull to the administrative base at Woolwich yet he
never asked for a copy from the base at Woolwich. The Respondent never denied the existence
of the sheet and the circumstances in which the Claimant had obtained trip sheets for the month
of April were murky in the extreme. The Employment Tribunal certainly did not find the First
Respondent had denied the existence of the sheet and the circumstances in which it could not be
shown to the Employment Tribunal did not give rise on the Employment Tribunal’s findings to
any act of discrimination or victimisation on the part of the Respondent.
86. In all the circumstances the Claimant has failed to make out his grounds of appeal and
the appeal stands dismissed.
UKEAT/0086/09/RN28