Virgin Active Limited v C Hughes

This is an appeal against the judgment of Employment Judge Professor A C Neal, sitting with members. The hearing took place on 23, 24, 25, 26 & 30 July 2019; 3 September 2019; 11 & 25 October 2019, and in chambers on 23 & 24 January 2020 and 16 & 18 February 2021 (via MS Teams). The judgment was dated and sent to the parties on 15 June 2021.

The parties are referred to as the claimant and respondent as they were before the employment tribunal. The claimant succeeded in claims of direct race discrimination, “ordinary” unfair dismissal and automatic unfair dismissal on the basis that the reason, or principal reason, for dismissal was that the claimant had made protected disclosures. Claims of direct age and sex discrimination were dismissed.

The respondent appeals the determinations that went against it.

The judgment was sent to the parties just under a year and 11 months after the start of the hearing and a little less than a year and 7 months after the last day of the hearing. The delay resulted in part from problems caused by the Coronavirus pandemic, but more significantly because of the serious ill health of the Employment Judge. I should make clear at the outset that, now understanding the very serious nature of the ill health of the Employment Judge, the respondent does not criticise the Employment Tribunal for the delays caused by the Employment Judge’s ill health, but does rely on the delay as one of the grounds of appeal on the basis that the delay gave rise to a real risk that it was deprived of the substance of the right to a fair trial.

The respondent operates fitness clubs. On 8 May 2012, the claimant commenced work as Assistant General Manager at the respondent’s Chelmsford Club. The claimant was promoted several times.

On 26 January 2017, the claimant became the manager of the respondent’s Mayfair Club. Shortly thereafter an audit was conducted. The claimant considered it raised serious concerns about the operation of the club. The claimant was particularly concerned about the Member Services Manager, Jannett George, for whom he set out “expectations and actions”. Ms George was suspended from work pending investigation. On 8 March 2017, having conducted an investigation, the claimant recommended that disciplinary proceedings be taken against Ms George.

On 27 March 2017, the Claimant was asked by Andre Orr, Operations Manager Mayfair, to conduct a disciplinary meeting with Roya Arasp, a Sales Consultant, about alleged nonadherence to procedures concerning a “change freeze” and issuing guest passes. Shortly before the disciplinary hearing the claimant was told not to proceed with the matter.

By April 2017 personal improvement plans (PiPs) were in place for Ms George, Ms Arasp and Darrell Giovanni, an employee whose job title is not given in the judgment, amongst others. The claimant conducted investigation meetings with Ms George and Mr Giovanni on 21 June 2017 and Ms Arasp on 22 June 2017, as a result of which disciplinary processes were commenced.

On 26 June 2017, Mr Giovanni raised a grievance against the Claimant complaining about his management style, particularly about the investigation meeting of 21 June 2017. Mr Giovanni said that other employees including Ms George and Ms Arasp could provide information that would support his claims.

On 2 July 2017, Ms Arasp raised a grievance against the claimant alleging bullying and harassment based on sexual orientation and race/nationality.

On 3 July 2017, Ms George raised a grievance, alleging that the claimant was trying to force her out of her job.

All three grievances were investigated by Denise Mackenzie, Head of People Operations. The claimant attended an investigation meeting with Ms Mackenzie on 20 July 2017. Ms Mackenzie decided that the claimant should face disciplinary action because he had not provided adequate support to his staff; had made a racist comment to Ms Arasp in June 2017, "We had better watch out in the office, you're Iranian aren't you?"; had a tendency towards disciplinary action; had treated Ms George unfairly and sought to influence disciplinary action against her to bring about her dismissal.

The claimant was suspended by letter dated 17 July 2017. He was informed that an investigation would be undertaken into allegations that he had made an inappropriate comment of a racist nature to Ms Arasp, made an inappropriate comment about Ms Arasp’s sexual orientation and had “treated unfairly and allegedly harassed and bullied” Ms George, Ms Arasp and Mr Giovanni. The claimant received the letter on 24 July 2017.

On 27 July 2017, the claimant raised what he described as a “serious concern” about the investigation. He raised substantive and procedural issues.

By letter dated 3 August 2017, the claimant was invited to a disciplinary hearing. The allegations were similar to those that Ms Mackenzie had suggested should be pursued. It was specifically alleged that the claimant made the racist comment to Ms George on 3 June 2017.

On 4 August 2017, the claimant sent an email complaining about the lack of response to his “grievance” of 27 July 2017, stating that he wished to “escalate this original grievance to senior management”. More detailed concerns were raised in a letter attached to an email of 7 August 2017 and a further letter of 9 August 2017.

The claimant raised multiple issues in his grievances, alleging that:

On 10 August 2017, Hilary Tysoe, a member of the respondent’s HR department, wrote to the claimant stating that most of the grievances related to the disciplinary proceedings and would be dealt with as part of that process. His concerns about work-related stress would be considered in a separate grievance process.

The work-related stress grievance hearing was held by Morag Alabaster, Sales Director, on 16 August 2017.

The disciplinary hearing was held before Malcolm Armstrong, Regional Director and Emma Thomas, Head of People Services, on 22 August 2017. The claimant was represented by Paul Forsey. The meeting was reconvened on 19 September 2017. The claimant made covert recordings of the meetings.

By letter dated 21 September 2017, the claimant was informed that he was to be summarily dismissed.

The claimant appealed against his dismissal on 27 September 2017.

On 28 September 2017, Ms Alabaster wrote dismissing the work-related stress grievance stating that there was “no case for any further action to be taken at this time”.

The claimant appealed against the rejection of the work-related stress grievance on 4 October 2017.

The disciplinary appeal hearing took place before Simon Stokes, UK Operations Director, accompanied by Ms Thomas, on 9 October 2017. The appeal was dismissed by letter dated 24 October 2017.

The hearing of the appeal against the dismissal of the work-related stress grievance was held before James Archibald, UK Legal Director, on 17 October 2017. The appeal was dismissed.

The Employment Tribunal held that the claimant had made two protected disclosures. The first was about the alleged threat of violence. Mr Cawthorne had reported to Ms Mackenzie that a comment had been made to the effect “…don't worry Craig will get what’s coming to him" and "If Virgin don't sort this out then Darrell will sort him out". In addition, “personal drawers” in the claimant’s office had been broken into. The claimant reported these issues to the Metropolitan and Essex Police.

The Employment Tribunal concluded that the disclosure had been made and that it was a qualifying disclosure:

The second disclosure was a report asserting direct debit fraud. The Employment Tribunal held that a qualifying disclosure had been made by the claimant:

The Employment Tribunal concluded that the disclosures had been made to the claimant’s employer (and in the case of the threat of violence disclosure to the Police). The Employment Tribunal stated:

The Employment Tribunal went on to consider whether the making of the protected disclosures was the reason for the claimant's dismissal. The Employment Tribunal decided that issue in the claimant’s favour, relying primarily on the transcripts of the covert recording of the disciplinary hearings, including what had been said in the claimant's absence:

The Employment Tribunal went on to consider the claim of ordinary unfair dismissal. The Employment Tribunal concluded that the respondent had not established that the real reason for the claimant's dismissal was one that related to the claimant's conduct with the consequence that the dismissal was necessarily unfair:

The Employment Tribunal went on to hold that there were also multiple procedural failings that would have meant that the dismissal was unfair. The Employment Tribunal was particularly critical of the way in which the respondent had dealt with investigation of the racist comment the claimant had allegedly made to Ms Arasp. In the invitation to the disciplinary hearing it had been alleged that:

“… you made a comment of a racist nature on 3rd June: “We had better watch out in the office, you’re Iranian aren’t you?”

The date 3 June 2017 came from a statement produced as part of the investigation by Ms Arasp who said that the comment had been made after a briefing about the terrorist attack at London Bridge and Borough Market. The claimant took the allegation at face value. He denied that he had made the comment and asserted that Ms Arasp could not have fixed the date of the incident, 3 June 2017, as being the date of the terrorist attack as the attack had occurred in the evening of 3 June 2017, after working hours so he could not have made the comment to her that day. The date of the alleged comment was not corrected until the outcome of the disciplinary hearing was given in the dismissal letter in which it was stated:

“… the date of 3 June is an error and should have read after the terrorist attacks on 3 June.”

The Employment Tribunal was also critical of the respondent for failing to investigate “duty rotas” that it considered would have demonstrated, had the respondent conducted a proper investigation, that Ms Arasp could not have worked with the claimant after the issue of the terrorist attack had been raised in the work briefing until 16 June 2023.

The Employment Tribunal was also highly critical of the way the respondent dealt with the claimant's grievance, holding:

The Employment Tribunal dismissed the age and sex discrimination claims, rejecting the claimant’s arguments based on comparators, concluding that the claimant had not established facts from which it could conclude, in the absence of any other explanation, that his treatment was because of his age or sex.

The question arising in the race discrimination complaint was described in the list of issues:

On the first day of the hearing the claimant provided further particulars setting out the detail of the race discrimination claim which were summarised by the Employment Tribunal:

By allegation 1 the claimant asserted that his grievance that Ms George had made a comment to him when he was seeking to manage her performance “you are only doing this to me as I am old, black and fat" which he considered to be racist, was not investigated, whereas the allegation against him of making a racist comment to Ms Arasp resulted in disciplinary action.

The Employment Tribunal held that the claimant had established facts from which it could conclude that the claimant had been subject to direct race discrimination:

The Employment Tribunal also held that the burden of proof had shifted in respect of allegation 2 (dismissal of the grievance in respect of the alleged racist comment by Ms George); allegation 4 (failure to comply with the respondent’s grievance procedure); allegation 5 (the alleged racist comment by Ms George); allegation 6 (inconsistent disciplinary sanctions in comparison to Mr Giovanni, Ms George and Ms Arasp); allegation 7 (differential treatment in the course of the handling of the respective grievances); allegation 9 (the way in which the date of the comment the claimant was alleged to have made to Ms Arasp was dealt with in the disciplinary process);

The Employment Tribunal summarised its conclusion on the shifting of the burden of proof:

The Employment Tribunal analysed whether the respondent had discharged the burden of disproving race discrimination by considering 4 issues.

The first issue was whether the respondent had proved that “the decision of Ms Tysoe which determined that the Claimant’s grievances (with the exception of the “health and safety” grievance) should be dealt with as part of a disciplinary process rather than within the framework of the Respondent’s grievance procedure” was not because of the claimant's race. The Employment Tribunal considered the evidence about Ms Tysoe’s decision and concluded that she had been unable to properly explain it, and that she had not acted in accordance with the respondent’s procedures. The Employment Tribunal held:

The second issue was whether the respondent had proved that “the decision to refuse to make any adjustment to the personnel involved with the disciplinary and appeal procedures in the light of the Claimant’s complaints and observations about Ms Thomas” was not because of the claimant's race.

The Employment Tribunal found that the respondent had disproved discrimination:

The third issue was whether the respondent had proved that “the handling by Mr Armstrong of the disciplinary allegation against the Claimant in respect of a “racist comment”” was not because of the claimant's race.

The Employment Tribunal considered that Mr Armstrong had no proper explanation for the fact that the respondent did not correct the date of the racist comment the claimant had allegedly made to Ms Arasp or for his failure to go back to the witnesses to clarify the matter. The Employment Tribunal after a detailed consideration of the evidence concluded:

The fourth issue was whether the respondent had proved that the “application of different sanctions (or lack of sanctions) for the Claimant by contrast with his comparators” was not because of the claimant's race.

The Employment Tribunal again set out the treatment of the claimant in comparison with Ms Arasp, Ms George and Mr Giovanni that had resulted in the shift of the burden of proof:

Having considered the evidence of Mr Armstrong in considerable detail, the Employment Tribunal concluded:

The claimant appealed on six overlapping grounds:

The primary ground was asserted to be Ground 1 as it was contended that the other errors resulted, at least in large part, from the delay in the case being determined and judgment being given.

In the Notice of Appeal, the first ground was put in terms that “The egregious delay resulted in the Tribunal’s findings being unsafe”. In a supplementary skeleton argument submitted shortly before the hearing Ms Kennedy, for the respondent, stated that the correct test is whether there is “a real risk that the litigant has been denied or deprived of the benefit of a fair trial of the proceedings and where it would be unfair or unjust to allow the delayed decision to stand”. Mr Beaton, for the claimant, accepted that the latter is the correct test, but contended that the respondent could not assert that there was a real risk that the respondent had been deprived of a fair hearing as that was not how the ground was asserted in the Notice of Appeal. Ms Kennedy asserted that because ground 1 was permitted to proceed by John Bowers KC, Deputy Judge of the High Court at the sift stage, he could only have done so by application of the correct legal test, which he must have concluded was advanced in the Notice of Appeal. I do not accept that analysis, which amounts to an attempt by Ms Kennedy to pull herself up by her bootstraps, is valid. The correct legal test was not set out in the Notice of Appeal. However, ground 1 clearly asserted that the judgment could not stand because of the excessive delay, and I consider it is necessary when considering that ground to apply the correct legal test. Ground 1 has been permitted to proceed and it must be analysed by application of the correct legal test.

The parties accepted that the correct legal approach to delay is set out in Connex South Eastern Ltd v Bangs [2005] I.C.R. 763 per Mummery LJ at 43:

Accordingly, the mere fact that there may be challenges to findings of fact or assertion of errors of law in a decision that has been delayed does not mean that the decision is unsafe, for an appeal to succeed there must be a real risk that, due to the delay, the appellant was deprived of the substance of his right to a fair trial. In deciding whether there is a risk that a party has been deprived of a fair trial it is nonetheless helpful to consider what errors of law are asserted in the judgment, the reason for the delay and whether on an overview there is a real risk that the trial was not fair. The respondent contends that all the grounds of appeal are interrelated, and that the overall picture that emerges is that there is a real risk that the hearing was unfair. In those circumstances, I consider it is helpful to analyse the asserted errors of law first, although in a different order to that in the grounds of appeal. Obviously, insofar as any error of law is established, that is sufficient for that ground of appeal to succeed, irrespective of whether that error arose from the delay in determining producing the judgment. However, it does not necessarily follow if an error of law is established that the whole judgment is vitiated by the delay in the judgment being produced. Having considered any errors of law that are established, I will go on to consider the reason for the delay and whether there is anything else in the judgment that demonstrates that the hearing may not have been fair.

Race is a protected characteristic for the purposes of the Equality Act 2010 (“EQA”). Direct discrimination is prohibited by section 13 EQA:

Section 23 EQA provides:

Determining a claim of direct discrimination is inherently a comparative exercise. The Employment Tribunal has to consider whether the claimant was treated less favourably than a person with whom he does not share the protected characteristic was treated, or would have been treated, and whether the difference of treatment was because of race, in the sense that race was a material factor.

In many direct discrimination claims the claimant does not rely on a comparison between his treatment and that of another person. The claimant relies on other types of evidence from which it is contended that an inference of discrimination should be drawn, the comparison being with how the claimant would have been treated had he had some other protected characteristic.

In other cases, the claimant compares his treatment with that of one or more other people. There are two ways in which such a comparison may be relevant. If there are no material differences between the circumstances of the claimant and the person with whom the comparison is made (the person is usually referred to as an actual comparator), this provides significant evidence that there could have been discrimination. However, because there must be no material difference in circumstances between a claimant and a comparator for the purpose of section 23 EQA it is rare that a claimant can point to an actual comparator. The second situation in which a comparison with the treatment of another person may provide evidence of discrimination is where the circumstances are similar, but not sufficiently alike for the person to be an actual comparator. The treatment of such a person may provide evidence that supports the drawing of an inference of discrimination, sometimes by helping to consider how a hypothetical person whose circumstances did not materially differ to those of the claimant would have been treated (generally referred to as a hypothetical comparator). Evidence of the treatment of a person whose circumstances materially differ to those of the claimant is inherently less persuasive than that of a person whose circumstances do not materially differ to those of the claimant. That distinction is not always sufficiently considered when applying the burden of proof provisions in section 136 EQA:

Probably the most regularly quoted passage concerning section 136 EQA is from the judgment of Mummery LJ in Madarassy v Nomura International plc [2007] I.C.R. 867 at paragraph 56:

It is worth noting that in Madarassy the Employment Tribunal did not analyse the treatment of the claimant in comparison to actual comparators. Ms Madarassy’s claim was not analysed on the basis that there were men who were actual comparators, but that the scoring of men in a redundancy exercise could help establish how a hypothetical comparator would have been treated.

Where there is an actual comparator, it might be said that there is more than the bare fact of a difference of status and a difference of treatment. In Laing v Manchester City Council and another [2006] I.C.R. 1519 Elias J noted:

Laing was approved by the Court of Appeal in Madarassy, which itself was approved by the Supreme Court in Hewage v Grampian Health Board [2012] UKSC 37, [2012] ICR and Efobi v Royal Mail Group Ltd [2017] UKEAT 0203/16, [2018] ICR 359; see the analysis of Underhill LJ in Base Childrenswear Limited v Nadia Otshudi [2019] EWCA Civ 1648 at paragraphs 16-18.

If anything more is required to shift the burden of proof when there is an actual comparator it will be less than would be the case if a claimant compares his treatment with a person whose circumstances are similar, but materially different, so that there is not an actual comparator.

For example, if two people who differ in a protected characteristic attend a job interview and one is appointed but the other is not, that, of itself, would not be enough to shift the burden of proof, but if they scored the same marks in the assessment, so there is an actual comparator, the difference of treatment would seem to call out for an explanation. As Elias J noted in Laing at paragraph 73:

Accordingly, where a claimant compares his treatment with that of another person, it is important to consider whether that other person is an actual comparator or not. To do this the Employment Tribunal must consider whether there are material differences between the claimant and the person with whom the claimant compares his treatment. The greater the differences between their situations the less likely it is that the difference of treatment suggests discrimination.

The Employment Tribunal did not direct itself by reference to section 23 EQA or analyse whether there were material differences between the circumstances of the claimant and his comparators. The Employment Tribunal did not state whether the comparators the claimant relied on were actual comparators or were being used as providing evidence from which an inference of discrimination might be drawn. The Employment Tribunal clearly thought it was highly significant that the allegation that the claimant had said to Ms Arasp “We had better watch out in the office, you’re Iranian aren’t you?” resulted in disciplinary action, whereas the claimant’s allegation that when he sought to performance manage Ms George, she said to him "you are only doing this to me as I am old, black and fat". The Employment Tribunal did not state whether it thought there were material differences between the circumstances of the two alleged comments. There was no analysis of the possible significance of the fact that the allegation was that the claimant had referred to the race of Ms Arasp whereas Ms George referred to her own race, so that any asserted racial element to the comment would have to be based on a contention that Ms George stereotyped the claimant by assuming that as a white person he would be prejudiced against her as a Black person. On the face of it, the circumstances do appear to be materially different.

Mr Beaton, for the claimant, did not contend that Ms George, Ms Arasp or Mr Giovanni were actual comparators. He contended that on a fair reading of the judgment the comparison between the treatment of the claimant and Ms George, Ms Arasp or Mr Giovanni was used, along with other evidence, to draw an inference of race discrimination, albeit that much of the analysis was in the sections of the judgment dealing with the question of whether the respondent had discharged the burden of disproving discrimination once it had shifted. Regrettably, I cannot agree with that analysis. On a fair reading of the judgment, I consider that the Employment Tribunal treated Ms George, Ms Arasp and Mr Giovanni as actual comparators without analysing whether there were material differences between their circumstances and those of the claimant. The Employment Tribunal held that because of the difference of treatment alone the burden of proof shifted to the respondent to disprove discrimination. Accordingly, I conclude that Ground 4, that challenges the legal analysis that resulted in the burden of proof shifting, is made out. I do not consider it assists to go on to consider ground 5, that challenges the decision of the Employment Tribunal that the respondent had failed to discharge the burden in respect of the detriments that it found against the respondent. However, I can see nothing in the Employment Tribunal having made the error of law in its analysis that the burden of proof had shifted to the respondent that inherently suggests that it resulted from the delays in producing the judgment.

By Ground 6, the respondent asserts that the Employment Tribunal “Failed to apply the appropriate tests when asking whether the Claimant was dismissed as a result of a protected disclosure”. The way in which the ground is put has varied significantly between the grounds of appeal, skeleton argument and oral submissions. The focus of the oral submissions was that the Employment Tribunal failed properly to consider whether the claimant had a genuine belief that the disclosures were made in the public interest. It was contended that could not have been the case as the disclosures were only made after disciplinary proceedings had been taken against the claimant. The respondent asserts that the Employment Tribunal failed to consider its argument that the claimant was not truthful.

The term “qualifying disclosure” is defined by section 43B Employment Rights Act 1996

(“ERA”), which provides, so far as is relevant:

“43B.— Disclosures qualifying for protection.

(1)

In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following—

(a)

that a criminal offence has been committed, is being committed or is likely to be committed, ...

(d)

that the health or safety of any individual has been, is being or is likely to be endangered …

There must be a disclosure of information. In the reasonable belief of the worker making the disclosure, the information must tend to show one of the matters set out at paras. 43B(1) (a) to (f) ERA 1996, defined as the “relevant failure” by section 43B(5) ERA.

In the reasonable belief of the worker making the disclosure, it must be made in the public interest. The worker must believe, at the time of making the disclosure, that it is made in the public interest, and that belief must be reasonable. Underhill LJ considered this requirement in Chesterton Global Ltd v Nurmohamed [2018] ICR 731;

“26.

The issue in this appeal turns on the meaning, and the proper application to the facts, of the phrase “in the public interest”. But before I get to that question I would like to make four points about the nature of the exercise required by section 43B(1).

27.

First, and at the risk of stating the obvious, the words added by the 2013 Act fit into the structure of section 43B as expounded in Babula’s case [2007] ICR D 1026 (see para 8 above). The tribunal thus has to ask (a) whether the worker believed, at the time that he was making it, that the disclosure was in the public interest and (b) whether, if so, that belief was reasonable.

28.

Second, and hardly moving much further from the obvious, element (b) in that exercise requires the tribunal to recognise, as in the case of any other reasonableness review, that there may be more than one reasonable view as to whether a particular disclosure was in the public interest; and that is perhaps E particularly so given that that question is of its nature so broad-textured. The parties in their oral submissions referred both to the “range of reasonable responses” approach applied in considering whether a dismissal is unfair under Part X of the 1996 Act and to the “Wednesbury approach” (Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223) employed in (some) public law cases. Of course we are in essentially the same territory, but I do not believe that resort to tests formulated in different contexts is helpful. All that matters is that the tribunal should be careful not to substitute its own view of F whether the disclosure was in the public interest for that of the worker. That does not mean that it is illegitimate for the tribunal to form its own view on that question, as part of its thinking- that is indeed often difficult to avoid – but only that that view is not as such determinative.

29.

Third, the necessary belief is simply that the disclosure is in the public interest. The particular reasons why the worker believes that to be so are not of the essence. That means that a disclosure does not cease to qualify simply because G the worker seeks, as not uncommonly happens, to justify it after the event by reference to specific matters which the tribunal finds were not in his head at the time he made it. Of course, if he cannot give credible reasons for why he thought at the time that the disclosure was in the public interest, that may cast doubt on whether he really thought so at all; but the significance is evidential not substantive. Likewise, in principle a tribunal might find that the particular reasons why the worker believed the disclosure to be in the public interest did not reasonably justify his belief, but nevertheless find it to have been reasonable for different reasons which he had not articulated to himself at the time: all that matters is that his (subjective) belief was (objectively) reasonable.

30.

Fourth, while the worker must have a genuine (and reasonable) belief that the disclosure is in the public interest, that does not have to be his or her predominant motive in making it: otherwise, as pointed out at para 17 above, the new sections 49(6A) and 103(6A) would have no role. I am inclined to think that the belief does not in fact have to form any part of the worker’s motivation - the phrase “in the belief” is not the same as “motivated by the belief”; but it is hard to see that the point will arise in practice, since where a worker believes that a disclosure is in the public interest it would be odd if that did not form at least some part of their motivation in making it.

31.

Finally by way of preliminary, although this appeal gives rise to a particular question which I address below, I do not think there is much value in trying to provide any general gloss on the phrase “in the public interest”. Parliament has chosen not to define it, and the intention must have been to leave it to employment tribunals to apply it as a matter of educated impression. Although Mr Reade in his skeleton argument referred to authority on the Reynolds defence (Reynolds v Times Newspapers Ltd [2001] 2 AC 127) in defamation and to the Charity Commission’s guidance on the meaning of the term “public benefits” in the Charities Act 2011, the contexts there are completely different. The relevant context here is the legislative history explained at paras 10—13 above. That clearly establishes that the essential distinction is between disclosures which serve the private or personal interest of the worker making the disclosure and those that serve a wider interest. This seems to have been essentially the approach taken by the tribunal at para 147 of its reasons.”

While the worker must reasonably believe that the disclosure is made in the public interest it is not necessary that belief is his motive for making the disclosure.

I consider it is clear, on a fair reading of the judgment, that the Employment Tribunal concluded as a matter of fact that the claimant did reasonably believe that the making of the disclosures was in the public interest. That was a factual finding that was open to the Employment Tribunal. Even if the claimant was motivated to make the disclosures by being subject to disciplinary proceedings that would not prevent him having a reasonable belief that the disclosure was made in the public interest. I consider that the scattergun approach adopted to this ground demonstrates that it is, in reality, an attempt to go behind the factual findings of the Employment Tribunal. In the Notice of Appeal, it is asserted that the Employment Tribunal "failed to properly consider points disputed by the Appellant at the hearing”. It is not necessary for the Employment Tribunal specifically to refer to every point raised by a party in a skeleton argument. The respondent asserts that the Employment Tribunal failed properly to consider the assertion that the claimant’s “allegations about threats to his safety did not tend to show that a crime was likely to be committed”. I consider that it is clear that the Employment Tribunal concluded that the claimant did have a reasonable belief that the information he disclosed tended to show that a crime was likely to be committed. The respondent asserts that the Employment Tribunal failed to consider the assertion that the claimant “made a protected disclosure in respect of the credit card fraud, in circumstances where this had already been subject to an investigation”. The fact that there had been an internal investigation would not prevent the claimant making a disclosure of information that the claimant reasonably believed tended to show that the commission of a crime was likely, and that the disclosure was in the public interest. The Employment Tribunal was not required to recite every point made by the respondent. The respondent contends that the Employment Tribunal failed to consider its argument that “the allegations regarding credit card fraud and threats to his safety were made against Darrell Giovanni in retaliation for him raising a grievance against the Claimant” and that the Employment Tribunal should not have held that the “disclosure was in the public interest and not because of the disciplinary case against the Claimant”. These points go to the motive of the claimant for making the disclosure rather than the relevant statutory test the application of which required the Employment Tribunal to consider whether the claimant made a disclosure of information which he reasonably believed tended to show a relevant failure and was made in the public interest. The tribunal applied the correct test and reached a legitimate conclusion that the claimant had made a protected disclosure and legitimately went on to hold that was the reason, or principal reason, for the claimant’s dismissal. Ground 6 fails.

By the second ground of appeal that respondent asserts perversity. The respondent accepts that there is a very high threshold to be surpassed if perversity is to be established, Crofton v Yeboah [2002] IRLR 634 at paragraph 93:

“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"…”

I do not consider that the grounds of appeal come close to establishing perversity. The respondent relies on the fact that the Employment Tribunal referred to having paid particular regard to the cross-examination of Mr Stokes, who heard the Claimant’s appeal, whereas he did not give evidence. The Employment Tribunal was asked to comment on the allegations about the conduct of the hearing and delay in giving judgment. The Employment Judge explained that the erroneous reference to Mr Stokes giving evidence occurred in a section of the judgment shortly after a passage in which the Employment Tribunal considered the covert recording of his discussion with Ms Thomas. I consider this is a minor error of the type that occur from time to time in judgments, being no more than a Homeric nod.

The respondent criticises the focus of the Employment Tribunal on the precise date on which the claimant was alleged to have made a racist comment to Ms Arasp. I do not consider this is a fair criticism. The Employment Tribunal was making the point that the respondent put the allegation to the claimant on the basis that 3 June 2017 was the date on which the comment was made. Despite the claimant explaining that could not have been the date the respondent only corrected the allegation to assert that the comment was made after 3 June 2017 when giving the outcome of the disciplinary hearing. The Employment Tribunal was entitled to consider that this shortcoming was significant.

The respondent criticises the way the respondent analysed the extent to which the claimant and Ms Arasp might have worked together after 3 June 2023. That was a factual determination for the Employment Tribunal, and I do not consider that their approach was perverse.

The respondent asserts that the Employment Tribunal “wrongly treated the covert recordings as if they were a transcript of evidence in a hearing”. The Employment Tribunal was fully entitled to consider that the transcripts were highly significant. The fact that Mr Armstrong said he could not recall making the comments he was recorded as making was a matter of little significance. The recording spoke for itself and the Employment Tribunal was entitled to conclude that Mr Armstrong’s attitude changed after he discovered that the claimant had made a report to the Police.

The respondent notes that at paragraph 186 of the judgment the Employment Tribunal referred to all of the claimant’s comparators being Black, whereas Ms Arasp was elsewhere referred to as Iranian. I do not consider this is of any real significance. On an overview of the judgment, it is clear that the Employment Tribunal had fully in mind the assertion that the claimant had made a racist comment to the claimant based on her being Iranian. Ground 2 fails.

As stated at the outset of this judgment there was lengthy delay in the judgment being produced, mainly because of the very serious ill health of the Employment Judge. The Employment Judge has provided a very detailed explanation of the delay and how the judgment was produced. I do not consider it helpful to set out that explanation in full, but will refer to what appear to me to be some of the most important aspects. The Employment Judge took 117 pages of handwritten notes which were available to the Employment Tribunal at all stages of its deliberations. All members of the Employment Tribunal, at all stages of its deliberations, had the hearing bundle in hard or soft copy. During the deliberations the Employment Judge made recordings of factual findings and of important points discussed in the deliberations. The Employment Tribunal also had supplementary notes taken by the lay members. The Employment Tribunal adopted an iterative approach to decision making, first finding the facts, then applying the law to the facts it found to determine the issues, albeit over several chambers sessions, with substantial gaps between them, sometimes requiring significant reading back into the case.

This ground has also varied considerably between the notice of appeal, skeleton argument and oral submissions. I shall consider the specific grounds of appeal that were still relied upon in the skeleton argument and/or oral submissions. The respondent complains that the Employment Tribunal “did not have access to a transcript of the oral evidence”. There was nothing unusual in this at the time of the hearing and deliberations. The Employment Tribunal had a detailed note of the oral evidence.

The respondent asserts that the “lay members of the Tribunal lost the hard copy bundles that they used during oral evidence and did not have access to those notes when the draft Judgment was produced”. While the hard copy bundles of the members were not kept, they did have soft copies. The notes referred to in the ground are any notes that the members made on the documents in the hard copy bundle. However, the Employment Judge specifically states that the members had their notes when they deliberated. There is nothing to suggest that any marking or notes they made on the hard copy bundles were of great significance. The members clearly considered that their hearing notes and other material before them were sufficient to determine the case.

The respondent complains that the Employment Tribunal “heard the case over five different sittings, in some cases with months passing in between them”. That is regrettable but the Employment Judge has set out at great length the steps taken to ensure that the case was considered properly, including making recordings of the deliberations so that the panel would have a record of what was said during the course of the deliberations and of the findings they made as they went through the stages of determining the claims.

The respondent contends that the Employment Tribunal relied “excessively on transcripts of covert recordings”. I have set out the extracts that the Employment Tribunal particularly relied on in the section of this judgment dealing with the facts. When one reads what Mr Armstrong and Ms Thomas said when they thought no-one was listening it is not hard to see why the Employment Tribunal felt the transcript was a smoking gun. I can see no error of law in the weight the Employment Tribunal gave to this evidence.

The respondent asserts that the judgment “fails to address one of the Appellant’s core points – that the Claimant was a liar and an unreliable witness”. It is clear on a fair reading of the judgment that the Employment Tribunal did not consider that was the case.

The respondent complains that the judgment fails to address a number of material points raised in its skeleton argument. The Employment Tribunal was not required to address every point raised by the respondent but was entitled to focus on the matters it considered were of the greatest significance to determining the complaints.

In the skeleton argument produced for the hearing the respondent raises a number of points said to arise from consideration of the Note provided by the Employment Judge and from his response to a complaint the respondent made against him (that was rejected), although there has been no application to amend the Notice of Appeal. The respondent asserts that the severity of the Employment Judge’s ill health meant that the “case and the evidence was plainly not at the top of” his mind while he was being treated and discovered the severity of his condition. The Employment Judge’s illness explains much of the delay and the fact that the deliberation took place over a number of days in chambers with significant gaps between them. However, I do not consider that there is anything to suggest that the Employment Judge did not give his full attention to the case when he was able to meet with the members and deliberate. I do not accept that one can infer from the severity of the illness that the Employment Judge’s “recollection of the evidence was (understandably) severely impaired”.

The respondent complains that there was " no working draft of the Judgment at the time the hearing concluded in October 2019 setting out the panel’s substantive findings”. Nor would I expect there to have been one. Findings of fact are made after the hearing when the panel deliberates.

The respondent notes that deliberations "did not start until some months later at the end of January 2020”, that very little "substantive work was done on the case between January 2020 and February 2021 – a period of 13 months”, that a "working draft of the Judgment was not prepared and circulated until November 2022” and in " February 2021, the panel were described as having a “provisional view” as to the race discrimination claim”. These points establish no more than that the deliberations took place over a number of sessions with substantial gaps between them and that the Employment Tribunal found facts first, then applied the law to them, and did not reach a conclusion on the race discrimination claim until it had made all of its findings of fact and conducted a full analysis of the case. Employment Tribunals have long been told that they should consider the matter as a whole before determining discrimination claims.

Standing back and considering the totality of the complaints raised by the respondent I do not consider that they have established that the delay in producing the judgment gave rise to a real risk that the respondent was deprived of the substance of the right to a fair trial. Ground 1 fails.

The appeal against the findings of direct race discrimination succeed and those findings are set aside. Those claims are remitted for rehearing before a new Employment Tribunal, if necessary. The parties should consider with care, in light of the claims that have succeeded, whether there is any way of resolving this matter without the need for a further hearing. The grounds of appeal challenging the other determinations of the Employment Tribunal are dismissed.