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||Neutral Citation Number:  EWCA Civ 38
||Case No: A2/2008/0529/PTA
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
HHJ PETER CLARK
Employment Appeal Tribunal (the EAT) dated 23 January 2008
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE WALL
||- and -
Professor Fosh appeared in person with a McKenzie Friend
Ms I Simler QC (instructed by Messrs Denton Wilde Sapte - Solicitors) for the Respondent
Hearing date: 14th January 2009
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lord Justice Wall:
- On 14 January 2009, the applicant, Professor Patricia Fosh, orally renewed an application for permission to appeal against a decision of the Employment Appeal Tribunal (the EAT) dated 23 January 2008, and made in a constitution chaired by His Honour Judge Peter Clark.
- On 30 October 2008, the applicant's initial application for permission to appeal had been refused on paper by Sir Richard Buxton, a recently retired judge of this court. Sir Richard took an unusual course. Not only did he deal seriatim with the points of law raised in the applicant's grounds of appeal; he also gave the applicant clear notice that she should think carefully before renewing the application orally and directed that any renewal must be on notice to the respondent, Cardiff University. Sir Richard also directed the applicant's attention to the Practice Direction to Civil Procedure Rules rule 52, and in particular to CPR PD 52.4.14A.
- Although the applicant made no attempt to obey the terms of the Practice Direction, she is, I think, entitled to say that CPR PD 52.4.14A applies to applicants who are represented, which she is not. She did indeed produce a detailed skeleton argument for the oral hearing, which she took me through. However, the absence of any advance indication of what the applicant intended to say enabled leading counsel for the respondent (who had also conducted the appeal in the EAT) to justify her presence on the ground that the respondent had not been able properly to assess the strength of the applicant's case in advance of the hearing. The respondent had thus exercised its right to be present, and at the conclusion of the hearing, when I indicated that I was minded to reserve judgment, she asked for the respondent's costs. This application was opposed by the applicant, and I heard argument on it. I will deal with the question of costs at the end of this judgment.
- The applicant commenced work with the respondent in September 1995. She is a specialist in Labour Relations and Human Resources Management (HRM) at the Cardiff Business School (CARBS). She has a particular interest in China. She was one of 50 professors assigned to HRM, which is one of 5 divisions of CARBS. The director of CARBS was Professor Mansfield. There were about 1,500 undergraduate students and about half that number of post graduates.
- In 2003, a Dr Chen, who had been studying for a PhD under the supervision of the applicant, commenced proceedings against the respondent claiming race discrimination. Dr Chen's Form ET1 was presented in the Employment Tribunal on 17 March 2003 on his behalf by the Commission for Racial Equality (CRE). However, after the CRE subsequently withdrew its support, the applicant represented Dr Chen and appeared at two directions hearings held on 30 June and 1 September 2003. The full hearing was listed for 12-19 January 2004. In November and December the applicant requested time off to attend Dr Chen's Tribunal as a witness. This was granted by Professor Mansfield in part.
- On 19 December 2003, the respondent's director of personnel, Mr McDougall wrote to and emailed the applicant, pointing out that as well as being a witness for Dr Chen in the forthcoming hearing she was also representing him. Mr. McDougall said that this would give rise to a serious conflict of interest. He also contended that the applicant had disclosed to Dr Chen confidential information, acquired in her role as a senior member of the University. Specifically, she had been privy to 'reserved business' subject to the usual conventions of confidentiality. The applicant was asked to cease representing Dr Chen in his proceedings. The applicant refused. She continued to act for Dr Chen, and instructed solicitors to write to the respondent invoking the victimisation provisions of the Race Relations Act 1976 (RRA 1976) and the Public Interest Disclosure provisions of the Employment Rights Act 1996 (ERA 1996).
- The Employment Tribunal which in due course heard the applicant's claims for victimisation under RRA 1976 and for unfair dismissal under section 94 of ERA 1996 (which I shall henceforth call "the Tribunal") found that the respondent had no objection to the claimant appearing as a witness for Dr Chen. The perceived conflict of interest was in her representing him in his claim.
- Following the Chen hearing (in which Dr Chen was unsuccessful) Mr McDougall, by letter dated 21 January 2004, suspended the applicant on full pay. The respondent then, with the authority of the Vice-Chancellor, Dr Grant, conducted a search of the applicant's email account, leading to further disciplinary charges against her. The applicant's email correspondence showed her criticising Professor Mansfield to former students, and the respondent took the view that the tone of her emails to students was unprofessional.
- The applicant was also accused by the respondent of misconduct in the matter of an application by Dr Chen for a Leverhulme Fellowship at CARBS, where she involved herself directly in the preparation of his application, using research co-authored by herself, Dr Chen and one Dr Zhao.
- Disciplinary charges were formulated against the applicant by the respondent as follows; (1) the conflict of interest complaint concerning her representation of Dr Chen; (2) her involvement in Dr Chen's application for the Leverhulme Fellowship; (3) her provision of accommodation to students in her home without declaring the fact to the respondent, together with abusive criticisms of Professor Mansfield and inappropriate correspondence by email with one past student and one past student who was also a potential future student.
- The disciplinary hearing took place before an external panel chaired by His Honour Judge Prosser QC. The result was a recommendation that the applicant be dismissed. That decision was reviewed by a barrister, Mr Phillip Rees, who upheld the panel's decision. After accepting this recommendation, the applicant was dismissed by the respondent on 26 April 2005.
- The applicant took proceedings against the respondent claiming unfair dismissal under ERA 1996, section 94, and victimisation under RRA 1976. The Tribunal, in a unanimous decision promulgated on 30 July 2007, dismissed the applicant's claims, holding (inter alia) that there was no bad faith within the meaning of section 2(2) of RRA 1976.
- The applicant appealed to the EAT. Its judgment, which as I have already related - was given by His Honour Judge Peter Clark, was handed down on 23 January 2008.
The approach of the EAT
- When deciding whether there was any error of law in the Tribunal's approach to the issues raised before it, the EAT considered those issues under five heads. These were; (1) the causation question in the victimisation claim; (2) the reverse Burden of Proof under section 54A of RRA 1976; (3) the application of Article 8 of the European Convention on Human Rights (ECHR); (4) delay in the disciplinary process; and (5) perversity.
- The EAT was not persuaded that there was any error of law in the Tribunal's reasoning. It accordingly dismissed the appeal, and it is from that dismissal which the applicant seeks permission to appeal.
- Although, as Sir Richard Buxton correctly points out, the jurisprudence of this court is that it is concerned with whether or not the Tribunal has made an error of law which the EAT has failed to correct, it is, I think, nonetheless helpful in this particular case to look first at the decision of the EAT, to see how it approached the case.
- The EAT prefaced its consideration of the victimisation issue by examining the question of good faith. On the assumption that the representation by the applicant of Dr Chen in proceedings before an Employment Tribunal could constitute a "protected act", the EAT recorded the Tribunal's finding that the reason for the respondent's treatment of the applicant was not because she did a protected act in representing Dr. Chen, but because she had placed herself in a position of conflict of interest. The EAT identified that conflict of interest as the duty she owed to her employer on the one hand under her contract of employment, and the obligation which she assumed to represent the interests of Dr. Chen in his litigation against her employer. The EAT cited paragraph 82 of the Tribunal's reasons, in which it had said:-
"82. The conflict of interest was at its most obvious when the claimant herself personally conducted the case. That is because it was quite clear at the hearing of the Chen case that she was more than just a representative. She was someone who had private and personal knowledge of the respondent's selection procedures, indeed she had privileged knowledge as a senior employee, which she was able to use to Dr Chen's advantage in the proceedings. She was privy to "reserved business". Hypothetically, a barrister or solicitor would have declined to act, on grounds of professional embarrassment, in circumstances where they were thought to have a privileged and relevant knowledge of the procedures of the opposing party. To our minds the conflict of interest here was glaringly obvious, and unacceptable."
- The EAT went on to detailed consideration of the causation question. Having set out the terms of section 2(1) of RRA 1976, the EAT went on:-
19. The Employment Tribunal proceeded on the basis that by representing Dr Chen in proceedings under the Act the Claimant had done a protected act under s2(1)(c). Dr Husbands points out and Ms Simler (leading counsel for the respondent) accepts that in their reasons the Employment Tribunal make no mention of a further protected act relied on by the Claimant, namely providing information to the Welsh CRE in connection with Dr Chen's claim.
20. However the critical issue is whether the Respondent treated the Claimant in the manner complained of by reason that she had done the protected acts relied on or for some other reason.
21. The 'causation issue' in a complaint of victimisation has been considered by the House of Lords in Khan v Chief Constable of West Yorkshire Police  4 All ER 834, and more recently in St. Helens Metropolitan Borough Council v Derbyshire  IRLR 540.
22. We reject Dr Husbands' submission that the Employment Tribunal wrongly held that the Claimant's act of representing Dr Chen was not a protected act. They proceeded on the basis that it was. Nor do we find it helpful to consider the purely factual distinction that exists between the present case and that of Aziz v Trinity Street Taxis Ltd  IRLR 204 (CA), to which the Employment Tribunal referred at paragraphs 64-69 of their reasons. The question is whether the Employment Tribunal correctly applied the principles developed in the cases in deciding the 'reason why' question (Lord Nicholls cautioned against the use of the legal concept of 'causation' in this context in Khan, paragraph 29).
23. We accept Ms Simler's submission that the Employment Tribunal did correctly apply the law. The findings of fact at paragraph 82 of the reasons are clear and unequivocal. It was the perceived conflict of interest and breach of confidentiality which motivated the Respondent, consciously or subconsciously, to treat the Claimant as it did. Not the protected act of representing Dr Chen.
24. As to the lacuna in the Employment Tribunal's reasons concerning information provided by the Claimant to the Welsh CRE, we also accept Ms Simler's submission that it is plain from the Employment Tribunal's findings that the reason for the Respondent's treatment of the Claimant was not a proscribed reason under section 2. Accordingly it is unnecessary to refer the matter back to the Employment Tribunal for further reasons on this aspect of the case.
25. Finally, we should deal with Dr Husbands' submission that section 72(3) RRA applies in this case. In our judgment it does not. Section 72(3) declares void any term of a contract which purports to exclude or limit any provision of the Act. The implied term of mutual trust and confidence present in this and every contract of employment, to which the Employment Tribunal referred (see reasons paragraph 79) does not purport to exclude the provisions of section 2 of RRA 1976. The question under section 2 is why did the Respondent treat the Claimant as it did? If the answer is, because she did a protected act, then the statutory tort of victimisation is made out. If not, as the Employment Tribunal, we are satisfied, permissibly found, then the claim fails.
- On the question of the burden of proof, the EAT recorded that the Tribunal had been persuaded, as a matter of construction, that the provisions of section 54A RRA 1976 did not apply to a claim of victimisation under section 2. The EAT noted that this view had since been endorsed by the EAT in Oyarce v Cheshire County Council (UKEAT/0557/06/DA,  UKEAT 0557_06_1306 ). The EAT was aware that the decision in that case was to be (and indeed has now been) considered by this court: see  EWCA Civ 434, in which the decision of the EAT was upheld. The EAT declined an invitation made on the applicant's behalf to stay the hearing pending the outcome of the appeal in Oyarce.
- The EAT expressed itself in the following way on this point:-
The reason is that at paragraph 87, the (Tribunal) clearly found that even if the reverse Burden of Proof applied, they were satisfied by the Respondent's non-discriminatory explanation discussed earlier. That finding, in the light of all the evidence which they heard and the facts found, is sufficient to dispose of any argument based on the reverse Burden of Proof in line with the approach sanctioned by the Court of Appeal in Madarassy v Nomura International Plc  IRLR 246.
- On the ECHR Article 8 point, the EAT was referred to the case of Copland v UK (Appn. No. 62617/00, BAILII:  ECHR 253 ) 3 April 2007 and commented:-
Whilst apparently similar to the present case, Ms Simler points to two important distinctions. First, the search of the Claimant's emails was authorised in accordance with the Respondent's own internal rules: secondly, the present case post-dates the passing of the Regulation of Investigating Powers Act 2000 (RIPA) and Regulations made there under. That legislation was not in force at the time of the matters raised in Ms Copland's complaint.
- The EAT was of the view that the Tribunal had taken these matters into account when deciding that the derogations in Article 8.2 applied: - see paragraphs 47-49 of its reasons. The EAT concluded on this point: -
Thus for the purposes of determining the complaint of 'ordinary' unfair dismissal, we apply the guidance of Mummery LJ in X v Y  IRLR 625, paragraph 63. Since the Tribunal was entitled to conclude that there was no violation of Article 8, the (applicant's) convention rights do not bear on the fairness of her dismissal under section 98(4) of (ERA 1996).
- It is, I think, worth setting out both what that guidance was, and the fact that, since it emanated from a decision of this court, it was binding on the EAT: -
63. I would dismiss the appeal as there was no error of law in the decision of the Employment Tribunal that the dismissal of the applicant was fair and that his dismissal did not involve a violation by the respondent of article 8 and article 14.
64. As indicated earlier, it is advisable for employment tribunals to deal with points raised under the HRA in unfair dismissal cases between private litigants in a more structured way than was adopted in this case. The following framework of questions is suggested:-
(1) Do the circumstances of the dismissal fall within the ambit of one or more of the articles of the Convention? If they do not, the Convention right is not engaged and need not be considered.
(2) If they do, does the State have a positive obligation to secure enjoyment of the relevant Convention right between private persons? If it does not, the Convention right is unlikely to affect the outcome of an unfair dismissal claim against a private employer.
(3) If it does, is the interference with the employee's Convention right by dismissal justified? If it is, proceed to (5) below.
(4) If it is not, was there a permissible reason for the dismissal under the ERA, which does not involve unjustified interference with a Convention right? If there was not, the dismissal will be unfair for the absence of a permissible reason to justify it.
(5) If there was, is the dismissal fair, tested by the provisions of section 98 of ERA 1996, reading and giving effect to them under section 3 of the Human Rights Act so as to be compatible with the Convention right?
- On the question of unfair dismissal, the question before the Tribunal was whether the applicant's dismissal was unfair applying section 98(4) of ERA 1996. The applicant's case had never been advanced under section 98A. The EAT could thus see no grounds in law for interfering with the Tribunal's reasoning at paragraph 56, in which it had concluded that although the applicant's suspension had been lengthy, it had not been unfair.
- On the perversity point, the EAT commented that:-
Much of (the) lengthy written submission by Dr Husbands (the applicant's partner, who represented her before the Tribunal and the EAT, and who appeared as her McKenzie friend in this court) was taken up with challenging the Tribunal's findings of fact adverse to the (applicant). Although recognising the high hurdle faced by Applicants seeking to argue perversity Dr Husbands has not entirely put into effect his own self-denying ordinance. We have considered this part of the appeal but find ourselves unable to accept that perversity is made out".
- The EAT concluded:-
We do not accept that this Employment Tribunal's reasons fail the Meek test. They adequately explain why the parties won or lost, with the exception of the Welsh CRE information point with which we have earlier dealt. Further, in our judgment the (Tribunal) reached a permissible conclusion on the two claims before them based on their application of the law to the facts as found, which findings were supported by evidence.
The grounds of appal
- The applicant's grounds of appeal raise the following arguments. Firstly, the case involves significant points of law not previously heard at Court of Appeal level. These points related to the RRA 1976 section 2 and the Race Equality Directive. Secondly, the case raises the question of the interpretation to be given to RRA 1976 section 2(1), especially section 2(1) (b) and (c), and to Articles 1 and 9 of the Race Equality Directive 2000/43/EC. The Tribunal and the EAT had erred in law through their failure to hold that the applicant's actions in representing Dr Chen in his complaint of race discrimination before an Employment Tribunal and in giving information about his treatment to CRE Wales were protected acts.
- Secondly, the EAT had erred in affirming the Tribunal's distinction between senior and junior employees in the protection offered by RRA 1976 section 2.
- Thirdly, the EAT had erred in its recollection of the Tribunal's view on the protection offered to trade union representatives by RRA 1976 section 2.
- Fourthly, the applicant's giving of information about Dr Chen's selection process to CRE Wales had been a protected act under section 2(1)(b) of the RRA 1976. The applicant had been victimised for this, and both the Tribunal and the EAT had failed so to find. Furthermore, the EAT had not considered the application of RRA 1976 section 2(1)(d) to the applicant's representation of Dr Chen, and the EAT had been wrong not to consider that RRA 1976 section 72(1) reaffirmed the principle in section 2 that a breach of the implied term of trust and confidence present in any contract of employment could not render void an employee's protection for undertaking any of the acts listed in section 2(1)(a),(b),(c) and (d).
- Fifthly, the Tribunal had erred in not correctly following (either explicitly or even by implication from its approach) the necessary methodology of the two-stage test in assessing the applicant's claim of victimisation as set out in King v Great Britain-China Centre  ICR 516.
- Sixthly, both the Tribunal and the EAT had failed to consider that all the adverse actions taken against the applicant by the respondent (before the applicant's dismissal itself, and after the dismissal) were an indivisible campaign of victimisation for the applicant representing Dr Chen in his Employment Tribunal hearing and for the applicant giving information to CRE Wales.
The statutory provisions
- The relevant provisions of RRA 1976 are as follows:-
Section 2 Discrimination by way of victimisation.
(1) A person ( "the discriminator") discriminates against another person ( "the person victimised") in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has
(a) brought proceedings against the discriminator or any other person under this Act; or
(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act; or
(c) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person; or
(d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act,
or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.
(2) Subsection (1) does not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith.
- The applicant argues that RRA section 54A applies. That section applies where the respondent has committed an act against the complainant under Part II, section 76ZA, section 26A, 26B or 76, or "is by virtue of section 32 or 33 to be treated as having committed such an act". The applicant in the instant case alleged victimisation under section 2 in Part I of the Act. In any event, section 54A does not apply: see the decision of this court in Oyarce v Cheshire County Council discussed in paragraph 19 above.
- As we have already seen (see paragraph 25 of the EAT's judgment set out at paragraph 18 above) the applicant also raised an argument under section 72 of RRA 1976. This is an extremely long section which deals with the validity and revision of contracts. I agree with the EAT that section 74 does not apply in this case. It is not, therefore material and I do not propose to set it out.
The Council Directive
- Although I do not think that either assists her, the applicant relies on Articles 1 and 9 of the Race Relations Equality Directive (2000/43/EC) which read as follows: -
The purpose of this Directive is to lay down a framework for combating discrimination on the grounds of racial or ethnic origin, with a view to putting into effect in the Member States the principle of equal treatment.
Member States shall introduce into their national legal systems such measures as are necessary to protect individuals from any adverse treatment or adverse consequence as a reaction to a complaint or to proceedings aimed at enforcing compliance with the principle of equal treatment.
The Tribunal's decision
- The Tribunal heard evidence over 14 days. On any view, that is a substantial period, and more than enough to enable the Tribunal to make detailed findings of fact and to assess the various parties. The Tribunal found in paragraph 8 that "at the core of the case is the university's contention that the claimant was in breach of the general term of mutual trust and confidence." It correctly described this term as "fundamental in all employment relationships". It concluded that when the applicant was dismissed, and before imputing any blame, the working relationship between the applicant and Professor Mansfield "had reached a total impasse". That seems to me, on any view of the case, an accurate assessment of the reality.
- A second point which the Tribunal highlighted at an early stage in its reasons was the conflict of interest between the applicant and the respondent in the context of her representation of Dr. Chen in his claim before the Employment Tribunal. The Tribunal comments that it was not satisfied "even now" that the applicant fully understood what was meant by a "conflict of interest". I have to say that from my reading of the papers, and from having heard the applicant, I agree.
- The Tribunal then sets out the facts. In relation to what I hope I can call "the Dr Chen claim", the Tribunal sets out the parties' respective positions. The respondent plainly regarded the applicant's role in representing Dr Chen (as opposed to appearing as a witness on his behalf) as involving her in a conflict of interests. The applicant, on the other hand, saw no such conflict and regarded what she perceived as the respondent's attack on her freedom to represent Dr. Chen as victimisation.
- It is, I think, noteworthy that in paragraph 23 of its reasons, the Tribunal finds in terms that the applicant's motivation was not to seek revenge against Professor Mansfield, and that she had no ulterior motive in representing Dr. Chen. Between paragraphs 24 and 28 the Tribunal sets out a detailed assessment of the applicant as it saw her. Whether that assessment is right or wrong, I am in no doubt that the Tribunal was entitled to make it. As I have already stated, the Tribunal had the opportunity over many days to assess the personality of the applicant, and the facts (for these are facts) are for the Tribunal to find.
- Was the search of the applicant's email account a breach of her ECHR Article 8 rights? Plainly, it was a prima facie breach of ECHR Article 8.1, and the Tribunal so found. The question thus became whether or not it was justified within Article 8.2. The Tribunal found it was. I do not propose to set out the terms or ECHR Article 8, which are well known.
- As to the claim for unfair dismissal, the Tribunal was entitled to find, on the facts, that it was not procedurally unfair. True, the period of suspension was very long too long but, in my judgment, the Tribunal was entitled to find, as it did, that the length of the suspension did not make the dismissal itself unfair. The reasoning of the Tribunal, contained particularly within paragraph 56 of its reasons, seems to me to be eminently open to it.
- The applicant must appreciate something which, perhaps, I should have said earlier. This court is a court of review. It does not find facts. Had I been chairing the Tribunal or indeed the EAT I might have decided the case differently. But that is not the test. The test is whether or not the decision of the Tribunal and the findings of fact which it made were properly open to it. If they were, and if there is no error of law, that is the end of the matter: the Tribunal was entitled to find as it did, and the facts, in particular, are uniquely a matter for the Tribunal. If it was properly open to the Tribunal to find the facts as it did, and if there is no error of law in the process, any application for permission to appeal is doomed to fail.
- The Tribunal came to the clear conclusion that there was no unfairness in the process of dismissal that is to say in the procedure undertaken by the respondent. That seems to me to be right. Paragraph 63 seems to me a classic demonstration of an Employment Tribunal exercising its statutory function: I can certainly detect no error of law in it.
- In relation to the claim for victimisation, the Tribunal found in terms that acting for a claimant in proceedings in race discrimination proceedings was, in some circumstances, capable of being a protected act. The question for the Tribunal accordingly, was whether or not it was a protected act on the facts of the case before it. The Tribunal's view is clearly explained in paragraph 69 and 70 of its reasons, when it says: "the representation of a party in adversarial litigation against her employer is wholly different in kind from simply making a disclosure (that she considered the selection process discriminatory)". Is that a permissible view, and one within the authorities? In my judgment it is. The tribunal makes its position even clearer at the end of paragraph 70, in paragraph 74 and in paragraphs 78 and 79. I cite firstly a short extract from Paragraph 70:
They (the university) did not suggest that it was wrong for anyone to represent him (Dr Chen) in litigation, nor that the fact it was a race case was the unacceptable factor just that it was not right for the claimant to represent him, given her professional position, her contractual employment situation and the fact that she had supervised Dr. Chen's PhD as a professor within CARBS.
In paragraph 78, the Tribunal says: -
What was inappropriate in our view was that the claimant was simply not in a position to act as a representative. Not only was (the applicant) not a junior representative but she was a senior employee of the university as a Professor in the HRM section of the Business School. She was conducting proceedings against the business school.
And in paragraph 82, which I have already cited, but which I will repeat because it is so important, the Tribunal concludes:-
The conflict of interest was at its most obvious when the claimant herself personally conducted the case. She was someone who had private and personal knowledge of the respondent's selection procedures, indeed she had privileged knowledge as a senior employee, which she was able to use to Dr Chen's advantage in the proceedings. She was privy to "reserved business.
- The Tribunal then dealt with the Directive, section 72 of RRA 1976, the burden of proof in victimisation cases, the applicant's good faith and the question of an award were it to be wrong on the question of victimisation. Having finally dealt with a variety of miscellaneous issues, the Tribunal concluded by dismissing the applicant's claims.
The grounds of appeal: discussion
- I am, of course, very conscious that the applicant produced a lengthy skeleton argument at the oral hearing, which she took me through, and which I have had the opportunity to re-read over the period during which this judgment has been reserved. I mean no discourtesy to the applicant's industry when I say, quite frankly, that it is sufficient for me to say that I have re-read the grounds of appeal and fully agree with everything Sir Richard Buxton says about them. Nothing in the applicant's skeleton argument causes me to change my mind.
- I take as an example the first ground advanced:-
The EAT misinterpreted RRA 1976 section 2(1), especially 2(1)(b) and (e) and Articles 1 and 9 of (the Directive) thereby erring in law through its failure to hold that my actions in representing Dr Chen in his complaint of race discrimination before an ET and in giving information about his treatment to CRE Wales were protected acts.
Sir Richard's comment on this ground was as follows: -
The ET did not hold that representation of a fellow worker could not be a protected act. It carefully analysed the circumstances and context of this particular representation at paragraphs 73 to 82, correctly rejected the claimant's case that whatever she did in that capacity offset the duty of fidelity and found that in the circumstances of the case the applicant had created a position that was not consistent with the duty of fidelity.
- I agree. Furthermore, I do not think that either the Tribunal or the EAT misrepresented the ratio of Aziz v Trinity Street Taxis Limited and others  EWCA Civ 12. in that case, Slade LJ, clearly identified the legislative purpose of section 2(1) of RRA 1976:-
The clear legislative purpose of section 2(1) is to ensure, so far as possible, that victims of racial discrimination shall not be deterred from doing any of the acts set out in paragraphs (a), (b), (c) and (d) by the fear that they may be further victimised in one way or another. To this extent the various categories of acts set out in paragraphs (a), (b), (c) and (d) may fairly be described as "protected acts" and for brevity we will refer to them collectively by this description.
The appellant has, in our judgment, shown that he has done a protected act falling within category (c). However, in order to show that there has been discrimination by victimisation within section 2(1) of the Act, he still has to satisfy us that, in expelling him from membership, T.S.T. (1) "in any circumstances relevant for the purposes of any provision of this Act [treated the appellant] less favourably than in those circumstances it treats or would treat other persons", and (2) did so by reason that the appellant had "otherwise done anything by reference to this Act in relation to the discrimination" within the meaning of section 2(1)(c).
- The ultimate question for the Tribunal was whether or not the respondent had victimised the applicant. It plainly concluded that the applicant had not been victimised. The conflict of interest which the Tribunal found was "glaringly obvious and unacceptable". To take disciplinary proceedings against the applicant in these circumstances was not, in my judgment, victimisation. The parallel with Aziz is, in my judgment, apt. To put the matter crudely, anyone who behaved as Mr Aziz behaved would have been expelled. He was not victimised. What he did was unacceptable. The same applies to the applicant, and spreads over into the unfair dismissal claim. It was plainly within the range of responses of the reasonable employer to take disciplinary action against the applicant and to dismiss her.
- As it happens, I find myself in agreement with the Tribunal and the EAT. But that is irrelevant. The conclusion which the Tribunal reached overall was one which was plainly open to it on the evidence. In reaching that conclusion, moreover, it does not seem to me that the Tribunal committed any error of law.
- I fear that like many highly intelligent non-lawyers, the applicant puts a great deal of faith in detail and in complexity. This is actually quite a simple case. The Tribunal has found that what the applicant did was unacceptable. She has not been victimised. She has been fairly dismissed. She has had one appeal: a second would serve no purpose and have no prospect of success. I have no doubt that the applicant will continue to believe that she was victimised by the respondent. The fact of the matter is, however, that she has been able to ventilate her claim fully before the Tribunal and the EAT, and two judges of this court have now also taken the view that the Tribunal committed no error of law. That must be an end of the matter. The renewed application for permission to appeal is, accordingly, refused.
- The Tribunal and the EAT made no award of costs. It is highly unusual for them to do so. However, in this court, the rule is different, and the general rule is that the loser pays the costs. Sir Richard Buxton required notice of any renewed application to be given to the respondent, and the respondent has exercised its right to attend. I acknowledge that it is unusual for a respondent to be represented on a renewed application for permission to appeal, but I understand that the respondent in this case is naturally anxious about its reputation and the allegations made against it. I therefore heard argument on costs, not least because I was anxious to avoid the costs of a further attendance.
- I can see no reason why the respondent should not have its costs of the renewed application, and none was advanced by the applicant. Her position was that she was an impecunious litigant in person who was not a lawyer and should not be penalised. None of these arguments has any weight. The applicant was given the clearest possible warning by Sir Richard Buxton that she should think very carefully before she renewed, and the fact that she has convinced herself that she is right is no reason for declining to make an award of costs.
- An attempt should be made to agree a figure. If agreement cannot be reached, I would propose, subject to any representations to the contrary, that I should assess the respondent's costs after considering representations in writing. I should warn the respondent that I would do so on the basis that it did not have to meet a potential appeal, only an application for leave. I should also inform the applicant that I am not concerned with questions of enforcement, and her impecuniosity is not a reason for refusing to make an order.
- The application will, accordingly, be refused with costs to be assessed if not agreed.
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