Pan v Portigon AG London Branch

An Employment Tribunal may determine discrimination allegations individually and then assess the evidence cumulatively. Isolated, time-barred acts do not establish a continuing discriminatory act merely because a strained employment relationship later persists. Where later treatment is found to have wholly non-discriminatory explanations, the discrimination claim fails.

For constructive dismissal, an alleged fundamental breach must have caused the resignation. A return-to-work request that is innocuous cannot operate as a last straw. An appellate tribunal will not disturb factual findings merely because another conclusion was available; perversity remains a high threshold.

The claimant, a Chinese national employed by the respondent bank, resigned after a period of suspension and grievance procedures. He brought complaints of direct race discrimination, harassment, victimisation and constructive unfair dismissal.

The London (Central) Employment Tribunal dismissed all claims in a judgment dated 18 October 2011. The claimant appealed, challenging factual findings, the Tribunal’s alleged fragmented approach to the discrimination allegations, limitation, burden of proof, and constructive dismissal. A Burns/Barke order had also sought clarification of two allegations from the Employment Tribunal.

The central issues were whether the Tribunal had erred in rejecting the discrimination claims and whether the claimant had resigned in response to a fundamental breach of contract.

1. Appeal dismissed. The Employment Tribunal’s clarification that it had not originally determined whether the “democracy” remark amounted to harassment did not alter the result. Its additional answer that the remark would amount to harassment went beyond the question asked, was inadmissible as a matter of practice, and lacked adequate reasons. The point was in any event immaterial.

2. The Tribunal was entitled to make no finding on the alleged Winkler incident. Even if the claimant’s account of cross-examination were accepted, that would not undermine the Tribunal’s conclusion that it could not determine the factual assertion. The claimant had not discharged the burden of proving it.

3. The discrimination appeal disclosed no error of law. The Tribunal permissibly considered each allegation, made primary factual findings, and then stood back to take a holistic view. It was entitled to assume in the claimant’s favour that the two earlier allegations amounted to discrimination or harassment, yet find that they were isolated and time-barred. The substantial gap before the later suspension, disciplinary and grievance matters meant there was no continuing act. The Tribunal was also entitled to find that the later matters had wholly non-discriminatory explanations.

4. The perversity challenges failed. Although the Tribunal overlooked two contemporaneous notes when considering a social-gathering complaint, the omission did not vitiate its conclusion. There was evidence supporting the challenged findings and the high appellate threshold for perversity was not met.

5. The constructive-dismissal finding was upheld. It was unnecessary to resolve whether there had been a fundamental breach or affirmation, because the Tribunal’s alternative finding was dispositive: the alleged breach did not cause the resignation. The claimant resigned because he did not wish to return to work, not in response to a breach. The return-to-work letter was innocuous and could not be a last straw within [2005] ICR 481.

• Employment Appeal Tribunal: Appeal dismissed. No order was made on the respondent’s conditional cross-appeal.
• London (Central) Employment Tribunal: In a judgment dated 18 October 2011, the Tribunal dismissed complaints of race discrimination, harassment, victimisation and constructive unfair dismissal.