Bahl v The Law Society & Anor

This is the judgment of the court to which each of its members has contributed.

Dr. Kamlesh Bahl CBE appeals from the order of the EAT (“the EAT”) on 31 July 2003. Thereby the EAT allowed in part the appeals by the First Respondent, the Law Society, the Second Respondent, Mr. Sayer, and the Third Respondent, Mrs. Betts, from the decision dated 4 July 2001 of an ET (“ET”) sitting at Watford. The ET had found that the Law Society, Mr. Sayer and Mrs. Betts had discriminated against Dr. Bahl both on racial grounds and on the ground of her sex. The EAT reversed those findings. Dr. Bahl sought permission to appeal to this court on 10 grounds. The EAT gave such permission on 8 grounds but refused permission on the remainder. Dr. Bahl renews her application for permission to appeal to this court on one of the refused grounds, and appeals on the original 8 grounds for which permission was granted.

We now set out the more important facts which we take from the findings of the ET.

Dr. Bahl is a black Asian with British nationality. She was born in Kenya but has lived in the United Kingdom since she was 9. She is a solicitor. She was first elected a member of the Council of the Law Society in 1990 as a representative of the Commerce and Industry Group. She was the Chair of the Equal Opportunities Commission (“the EOC”) from 1993 until she resigned in November 1998. Mr. Sayer encouraged Dr. Bahl to become actively involved in the affairs of the Law Society. He wished to reform the way it operated and he thought that she could assist him in that objective. In October 1996 he requested her to stand for election as Deputy Vice President, but she did not agree to stand until 1998. They worked closely together in the period before the 1998 election and he helped her with such things as tactics, the writing of her manifesto and advertising. In July 1998 she was elected the Deputy Vice President of the Law Society. Mr. Sayer was elected Vice President. One year later she was elected as Vice President and Mr. Sayer was elected President. From July 1998 until late August 1999 their relationship was good. It appeared likely that she would become both the first woman and the first member of an ethnic minority group to become President of the Law Society.

Mrs. Betts was appointed Secretary General of the Law Society from April 1996. As such, her role was as chief executive of the Law Society and head of its staff. She originally welcomed Dr. Bahl’s appointment as Deputy Vice President and had high hopes of her. However, two incidents occurred in September 1998 when Dr. Bahl had made angry and upsetting telephone calls to Jean Johnson, the then Director of Human Resources, one of which left Ms. Johnson in tears, and on 15 October 1998 Dr. Bahl shocked Mrs. Betts by the severity of a tirade against Andrew Hall, the Director of Corporate Management. Mrs. Betts spoke to Dr. Bahl after that occasion about her manner and the managing of her behaviour. Mrs. Betts tried to explain to her staff that Dr. Bahl was a strong leader and that they should put her behaviour on one side and get on with the job. But during November 1998 Mrs. Betts’ senior management team expressed concerns to her about Dr. Bahl’s behaviour and Mrs. Betts thought it would be appropriate for the President to speak to Dr. Bahl. She sent Michael Matthews, the then President, a memorandum expressing her and her senior managers’ concerns about Dr. Bahl whose leadership style, Mrs. Betts said, was “proving to be highly authoritarian and confrontational rather than collaborative”. She explained in the memorandum that she had tried to mediate and deal with each incident individually but said that the overall problems seemed to be building up into something considerably more serious. Mr. Matthews spoke to Dr. Bahl and told her that staff were unhappy about her behaviour, but, as the ET found, he did so in such veiled terms that it had little meaning for her.

Further incidents took place in December 1998. In two of them, involving Barbara Cahalane, the Director of Communications, and David McNeill, the head of the press office, the ET found that Dr. Bahl raised her voice in anger to both staff members, but that she had every right to be angry. In another involving another member of Mrs. Cahalane’s staff, John Ludlow, Mrs. Cahalane protested to Dr. Bahl about the way she had spoken to Mr. Ludlow.

A fourth incident involved Russell Wallman, the then Director of Policy and a senior member of staff. At a meeting on 9 December 1998, the Council accepted the recommendation in a report of a reform working party chaired by Dr. Bahl that an Interim Executive Committee (“IEC”) be set up to carry forward the process of reform. The report recommended the abolition of certain committees the cost of which the working party had estimated. Mr. Wallman had written to the chairmen of those committees serviced by his directorate, criticising that estimate. Dr. Bahl was understandably furious at what appeared to be a subversive attempt to sabotage the work of the working party. At a meeting attended by Mr. Matthews, Mr. Sayer, Dr. Bahl and Mrs. Betts, Mr. Wallman was reprimanded in very angry terms by Dr. Bahl who was aggressive and lost her temper. Two vivid descriptions were given to Lord Griffiths (to whose subsequent involvement we will shortly come). Mr. Matthews’ abiding recollection was of Mr. Wallman “sitting there with an absolutely white shocked face looking as if he had been hit in the solar plexus”. Mrs. Betts said of the way Dr. Bahl spoke to Mr. Wallman:

“It was confrontational and it felt as though there was a culprit to be found and blame was going to be apportioned and hands were going to be chopped off.”

We will return to Mrs. Betts’s use of language. Mr. Sayer told the ET that the force of the attack came as a great surprise to him and he did not know what to say or do and therefore did not intervene. The explanation did not convince the ET. However, neither the President, Mr. Matthews, nor anybody else present intervened. By February 1999 Mr. Wallman was suffering from stress and receiving counselling and medical treatment.

On 11 March 1999 Mr. Wallman wrote a memorandum to Mrs. Betts about the problems caused by the behaviour of Dr. Bahl towards staff and mentioned the possibility of instituting a formal complaint under the Law Society’s Dignity at Work Policy (“the Dignity Policy”) in respect of his own position and on behalf of others in his directorate.

The Dignity Policy had been circulated to Council and all staff on 12 November 1998. In it the Law Society stated that all staff had the right to be treated with dignity and respect at work, that all forms of harassment, including bullying, are insulting and demeaning to the recipient and are deplored by the Law Society, which welcomed the support of MSF (the Manufacturing, Science and Finance branch of Amicus, the trade union for Law Society staff) in seeking to eradicate all forms of harassment from the workplace. The policy was expressed to apply to all staff and the complaints procedure which it provided was said to apply to all who felt that they had suffered from harassment, bullying or victimisation from another staff member or group of staff or a Council or Committee member. The Law Society acknowledged its duty to protect the health, safety and welfare at work of all staff. In a section of the Policy dealing with bullying, some of the more common ways for bullying to occur were said to include shouting at a colleague, negative attacks on a colleague’s personal or professional performance and criticising a colleague in front of others. Staff were told they could discuss complaints in confidence with Human Resources staff. Under the complaints procedure it was recommended that staff should try to resolve the issue informally, but where harassment involved a Council member and the staff member felt unable to follow the informal procedure, the matter could be referred to the Director of Human Resources who would discuss it with Mrs. Betts and, if necessary, the President. Where informal methods failed, or serious harassment or bullying occurred, staff were advised to bring a formal complaint. If the harassment or bullying involved a Council member, the complaint was to be sent to Ms. Johnson. On receipt of a complaint, action would be taken, where appropriate, to separate the alleged harasser from the complainant. If a complaint were made against a Council member, Ms. Johnson, Mrs. Betts and the President would investigate it and, if necessary, pass it to the Office for the Supervision of Solicitors. Para. 6.11 of the Policy provided:

“Those investigating the complaint should not be connected with the allegation in any way.”

The Dignity Policy did not in terms address a complaint against an office holder.

At a meeting attended by Dr. Bahl on 15 March 1999 Mr. Wallman was treated by her with contempt. An even more serious incident occurred at an IEC meeting on 29 March 1999 when Dr. Bahl angrily criticised Mr. Wallman, leaving him feeling humiliated and angry. He walked out of the meeting.

Mrs. Betts spoke to Mr. Wallman on 6 April 1999 when she noticed his symptoms of stress and attributed a deterioration in his confidence to the difficulties with Dr. Bahl. Mrs. Betts and Ms. Johnson met him on 14 April 1999 when he stated his belief that Dr. Bahl’s behaviour breached the Dignity Policy and again he mentioned the possibility of a formal complaint. Mrs. Betts, trying to find a low-key solution which would not damage him and which would remove the risk of a formal complaint, damaging as that would be for the Law Society and those involved, suggested that he take a sabbatical or be seconded to a different department. Mr. Wallman was absent from work ill in May 1999 and, to avoid him having direct contact with Dr. Bahl, Mr. Matthews, Mrs. Betts and Ms. Johnson asked Mr. Wallman to agree to work only on other specified work.

On 23 June 1999 Mrs. Betts and Ms. Johnson together spoke to Dr. Bahl. Ms. Johnson told her that Mr. Wallman was considering a formal complaint and that he felt humiliated by her. Dr. Bahl refused to accept that her behaviour had caused any problems, and admonished Mrs. Betts for not keeping file notes about Mr. Wallman's actions and statements. Ms. Johnson was embarrassed at the way Dr. Bahl spoke to Mrs. Betts, and after the meeting told Dr. Bahl that she did not think it appropriate for Dr. Bahl to reprimand Mrs. Betts in her presence.

Further serious incidents occurred in August 1999 in relation to two members of the International Directorate of the Law Society, Jonathan Goldsmith, its Director, and Ann Frazer, an executive member. Dr. Bahl, Mr. Goldsmith and Ms. Frazer went to Atlanta in connection with the Law Society’s involvement in the planned visit of the American Bar Association (“the ABA”) to London in summer 2000. The chairman of the ABA requested a meeting with the Law Society’s representatives on 7 August rather than 6 August. Dr. Bahl rang Mr. Goldsmith and Ms. Frazer on 4 August and launched into a menacing verbal onslaught on them, accusing Ms. Frazer of outrageous behaviour. Dr. Bahl demanded an audit trail of every meeting which had taken place with the ABA over 3 ½ years of preparation, even though Ms. Frazer did not have access to her notes and files in London and had not attended every meeting. Dr. Bahl insisted on the report. When Ms. Frazer put down the telephone, she was so distressed that she burst into tears.

On 7 August Dr. Bahl in a room crowded with ABA representatives publicly berated Mr. Goldsmith for failing to brief her properly about an ABA dinner to be held in London. She called him lazy and incompetent.

On 16 August Ms. Frazer met Mr. Sayer. He sensed something was wrong and asked her what it was. She told him of the problems she had experienced in Atlanta and said that she was too frightened to make a formal complaint. He said he would try to speak to Dr. Bahl on an anonymous basis. He spoke to Mrs. Betts, expressing concern about Dr. Bahl’s behaviour in Atlanta. Mrs. Betts told him that Mr. Matthews and she had tried talking to Dr. Bahl without success. Mrs. Betts suggested that he and Michael Napier, the Deputy Vice President, could try speaking with Dr. Bahl.

Mr. Napier spoke to Dr. Bahl on 24 August about her reputation in dealing with staff. So did Mr. Sayer on 26 August when he was joined by Mr. Napier. Mr. Sayer raised the subject of her treatment of staff. He told her that she had a frightening manner and that there was a risk of a formal complaint which, if made, would be extremely damaging to her and to the Law Society. He did not identify any particular incident or member of staff. Dr. Bahl was defensive and angry, demanding to know who had complained about her and the details. She said she was confused and in effect blocked the conversation. She accepted before the ET that Mr. Sayer told her of the risk of a formal complaint and that he may have mentioned the Dignity Policy, that he told her she was being too rough with staff, that he could not give details because people were frightened and that he was afraid that she was being harsh and aggressive. Mr. Sayer asked her to ease off on the staff and said that there was a risk that she might be seen as bullying and that there might be a risk to the Law Society as a result of her behaviour.

After this meeting the relationship between Mr. Sayer and Dr. Bahl, as he put it, “went quite cold”. She tended to ignore him and he made no real attempt to speak to her. On 27 August she sent an email to Mr. Sayer and Mr. Napier which made no reference to the concerns expressed about her treatment of staff.

On 30 August Mr. Sayer sent an email to Dr. Bahl. In it he said that, as he told her on 26 August, he did not want to fall out with her, that a member of staff had raised an issue about her treatment of staff, that they did not want to make it official provided that he raised it with her, and that if he had not and an official complaint had been raised, it would have caused embarrassment not only to her but to the Society. He hoped that she would accept that, and he suggested that they put it behind them. He referred to what he had been trying to achieve in the Law Society, and asked:

“So do we have peace, will you work with me and put last week behind us or not?”

He said that if she did not want to be part of his attempt to transform the Law Society, he would do it on his own though he preferred her on board.

It is convenient at this point to refer to the ET’s comments on this email. In para. 4.99 it said that it had “all the hallmarks of an ultimatum”. It considered that Mr. Sayer was content to tolerate Dr. Bahl’s behaviour until the point came where the staff complaints about it impinged directly upon him and his objectives for his presidency. It found the message in the email was clear: unless Dr. Bahl reined in or heeded his instruction to take note and ease off, she would be cut loose and left to her own devices. It said that it was anything but a conciliatory email. It continued:

“The cooling off between them that followed was due to his belief, well-founded as events transpired, that Kamlesh Bahl could damage both the Law Society and his position as President by her behaviour.”

On 8 September 1999 Dr. Bahl replied to Mr. Sayer’s email. She expressed her belief that a complaint raised by a member of staff about an office-holder was a serious issue and that there must be a clear and transparent way of ensuring that it was properly investigated by line management, preferably Mrs. Betts. She expressed surprise at Mr. Sayer’s question “So do we have peace?” She said that she believed that they had a mutually supportive and constructive working relationship over the past year where they had worked as a team. That, she said, was the situation when she went on holiday only to find the exact opposite when she returned and she remained puzzled as to what had caused the change.

Mr. Sayer on his return to the office on 20 September did not read that email. His explanation, that his practice was to read only the most recent messages, was rejected by the ET. It found that the only credible explanation was a deliberate omission that he did not care what response Dr. Bahl might make. The ET said “He had set his face against her”.

Ms. Frazer on 28 September 1999 went to see Mr. Sayer about the dinner to mark the opening of the new legal year. She told him that she was desperately unhappy, that Dr. Bahl had attacked her about the dinner and that she was thinking of leaving the Law Society because of Dr. Bahl’s treatment of her. Mr. Sayer told her that he had raised the issue with Dr. Bahl unofficially in August and that there was little more he could do unless she raised the matter officially or allowed him to mention her name. He suggested that she might contact her union or the Human Resources department but did not encourage her directly to make a complaint. She was worried about what Dr. Bahl would do if she made a complaint.

Dr. Bahl’s bullying treatment of Ms. Frazer manifested itself in an incident which the ET described as particularly unpleasant. At a meeting on 26 October 1999 attended by Ms. Frazer and Evelynne Gilvarry, the Director of Publications, Dr. Bahl wanted an email written to the ABA. Ms. Frazer began taking notes but Dr. Bahl pointed at her and said “Not you!” in a very rude tone of voice. She turned to Ms. Gilvarry and said in a charming way: “Evelynne, you write nice letters, you write it.” Ms. Frazer was summoned to a meeting with Dr. Bahl on 10 November and was rebuked again in sharp tones about her work in the meeting. Ms. Frazer went to see Mr. Sayer on 11 November and told him about her meeting with Dr. Bahl the previous day. He again told her that there was nothing he could do and suggested that she contact her union representative. The ET found this to amount to tacit encouragement of a formal complaint.

On 10 November 1999 Mel James, the Deputy Chair of MSF, emailed Mr. Goldsmith and Barbara McKelvey of the Human Resources department, expressing concern at Ms. Frazer’s situation and alleging that her treatment was incompatible with the Dignity Policy. On 11 November Ms. Frazer met with Ms. McKelvey, Ms. Johnson and Ms. James. Ms. Frazer was not able to confront Dr. Bahl, did not want anyone else to do so on her behalf and was very concerned about being identified as a complainant for fear of losing her job.

On a date between 11 and 15 November 1999 Mrs. Betts was asked by Mr. Goldsmith to go to his office. Ms. Frazer and Natalie Breeze, the Chair of MSF, were there. Ms. Frazer was very pale, shivering and slightly incoherent, upset about yet another reprimand from Dr. Bahl. Ms. Breeze suggested that Ms. Frazer make a formal complaint. Mrs. Betts tried to give a signal that if Ms. Frazer did complain, the Law Society would deal with it properly.

On 15 November 1999 Ms. Breeze confirmed to Ms. Johnson and Mrs. Betts the possibility of a formal complaint being made. Ms. Johnson and Mrs. Betts discussed the need for the Law Society to take legal advice on this issue and Robin Lewis of Bindman & Partners was selected to be the adviser.

Ms. James told Ms. Johnson about this time that, apart from Ms. Frazer, Mr. Goldsmith and Mr. Wallman, approximately 10 other people had contacted MSF about Dr. Bahl’s bullying. On 22 November 1999 Ms. Breeze sent a memorandum to Mrs. Betts saying that a number of MSF members had expressed serious concerns about the behaviour of one of the office-holders, asked for confirmation that the Dignity Policy would be the appropriate way of proceeding and suggested that Mrs. Betts consider how to deal with any complaint that might be made. Dr. Bahl accepted that the memorandum revealed a serious situation requiring urgent attention by Mrs. Betts.

Mrs. Betts confirmed that the Dignity Policy would be the appropriate means of raising any complaints and promised to investigate what procedures would be put in place. On 25 November Mrs. Betts sought advice from Mr. Lewis about how the Dignity Policy should be applied and implemented where MSF raised complaints about an office-holder.

By letter dated 30 November 1999 Mr. Lewis provided such advice in relation to a complaint against a Council member. He advised that the complaint should be sent to the Director of Human Resources and then referred to a panel of the President, the Secretary General and the Director, “unless any of the three was “connected with the allegation in any way””. He further advised that the panel should, on receipt of the complaint, decide on the procedure to follow, inviting the parties’ agreement. He also advised that the panel should achieve the separation of the parties. Mrs. Betts sent Mr. Sayer a copy of the advice.

Another incident, again described by the ET as particularly unpleasant, occurred on 5 December 1999 when Dr. Bahl sent an email to Ms. Frazer which she copied to the President and 4 others. In it she pointed out a significant error in an email sent by Ms. Frazer to Dr. Bahl one month earlier. Dr. Bahl thereby was broadcasting Ms. Frazer’s mistake and rubbing her nose in it.

Mrs. Betts expected a complaint to be made by MSF. She sought and obtained advice from Mr. Lewis on the draft letter she would have to write to Dr. Bahl when the complaint was received. Mr. Lewis suggested a draft letter of reassurance to MSF that the Law Society would deal effectively with any complaint under the Dignity Policy. A memorandum was sent by Mrs. Betts on 9 December offering MSF assurances that staff would be at liberty to speak frankly and openly and would suffer no adverse career consequences. Despite the clear obligation on the Law Society under the Dignity Policy to take seriously allegations of the bullying of a member of staff, the ET found that, because Mrs. Betts did not know prior to the receipt of a formal complaint how many complaints there might be nor the complainants’ identities nor whether the complaints were true or false, genuine or malicious, the reassurance was, at least, reckless and, at worst, a clear indication that Mr. Sayer and Mrs. Betts were prepared to support any act which might harm Dr. Bahl’s position in the Law Society; the ET added:

“We cannot accept that any reasonably competent senior employee could hold out such a reassurance nor that a competent solicitor holding the office of President of the Law Society would lend himself to it, without having clearly assessed and weighed its implications” (see para. 4.156 of the ET’s decision).

The ET found that by 9 December there were three possible formal complainants: Ms. Frazer, Mr. Goldsmith and Mr. Wallman. Of them Ms. Frazer wavered, and when it was pointed out by Ms. Breeze that she could not make a formal complaint anonymously, she withdrew the statement which she had prepared. When Ms. Frazer withdrew from making a complaint, so did Mr. Goldsmith.

On 9 December 1999 a formal complaint was lodged by MSF against Dr. Bahl under the Dignity Policy. The complaint was on behalf of Mr. Wallman, who alleged persistent bullying and intimidation by her over a prolonged period of time, causing stress-related illness. Reference was made in the complaint to a number of other members of staff who had complained of similar treatment but were too frightened of the repercussions to make formal complaints. Concern was expressed about Dr. Bahl’s behaviour being part of a pattern which stretched back to her time at the EOC. The “highest assurances” were sought that Dr. Bahl would not come into direct contact with the complainant.

Dr. Bahl was informed of the complaint. She accepted before the ET that this was a serious complaint which required urgent investigation. She also accepted that the Law Society had to set up a mechanism in which other staff could have confidence in coming forward to bring their complaints either within the terms of the Dignity Policy or by way of an agreed variation. Mr. Sayer, Mrs. Betts and Ms. Johnson considered that their role under the Dignity Policy was to receive the complaint formally and, if it required investigation (in that there was evidence to suggest that there was a case to answer), to pass it on to Dr. Bahl promptly. They decided that there was sufficient evidence to suggest that there was a case to answer. Dr. Bahl was so informed by Mr. Sayer on 9 December 1999 orally and by letter which he handed to her. In it he proposed that there be a full investigation to be carried out by a separately constituted panel. He invited her to stand down from her duties as Vice President until 28 January 2000.

Mr. Sayer wrote Dr. Bahl a personal letter on 10 December 1999. He reminded her that he had raised a similar complaint with her in August and had advised her to be careful. He said that the problem had the potential to be extremely damaging for the Law Society and everyone concerned. He urged her to absent herself from the Law Society and warned that if she did not accept that, he would have to ask Council to suspend her during the investigation.

Mr. Sayer and Dr. Bahl met twice on 13 December 1999. She was to say of her first meeting that Mr. Sayer had been threatening and intimidating and that he endeavoured to remove her physically from the building. Before the ET Dr. Bahl withdrew the implication of being manhandled and the ET did not accept that Mr. Sayer’s behaviour had been intimidating or threatening. At the second meeting they discussed the question of separation, but she refused to stand down voluntarily. She requested that she be shown the documents to be circulated to Council and asked that she be permitted to circulate documents to Council herself. To both those requests Mr. Sayer replied that he would take legal advice.

On the evening of 13 December, Isabel de Sa, the secretary to the IEC, spoke to Mrs. Betts about a demand made by Dr. Bahl for information. Ms. de Sa was concerned about the volume of material she was requested to assemble and the propriety of doing so. She asked Mrs. Betts “Is this the case for the defence?” The ET found that since Ms. de Sa appeared to know what was going on, Mrs. Betts told her that a complaint had been received (see para. 4.195). The ET also found that the news of the complaint having been made formally was probably common knowledge to Law Society staff within a matter of hours (para. 7.3.12).

At the request of Mrs. Betts, on 14 December 1999 Mr. Lewis advised on the question of separation. He advised that the Law Society should suspend Dr. Bahl, and he referred to its obligation to provide a safe system of work.

On the evening of 14 December Mrs. Betts, at Mr. Sayer’s request, spoke to Lord Hunt, a solicitor who, as a Government Minister, had appointed Dr. Bahl as Chair of the EOC. Mrs. Betts told him of the many complaints against Dr. Bahl of bullying. She told him that she was working closely with the Trade Union to persuade people to give evidence against Dr. Bahl, that she had persuaded Mr. Wallman to pursue his complaint and that she was going to persuade others to put their complaints on record. The ET found that whilst there may have been a degree of overstatement or exaggeration in those remarks, the fact that Mrs. Betts made them was significant.

Dr. Bahl instructed solicitors, Lewis Silkin, who instructed Mr. Nigel Jones Q.C. On the evening of 14 December the solicitors wrote to Mr. Sayer, saying that his conduct rendered it inappropriate that he should take any further part in the consideration of Dr. Bahl’s position. They said that he should treat the letter as a formal complaint with regard to his own conduct, and they made a number of specific allegations against him.

At 9.40am on 15 December Bindmans for the Law Society by letter replied to Lewis Silkin indicating that Mr. Sayer proposed to ask Council not to suspend Dr. Bahl but to ask her to stand down pending the investigation. They suggested a meeting of solicitors to discuss how they might cooperate. There was a meeting shortly afterwards, but no agreement was reached.

Mr. Sayer called an informal meeting of the IEC about noon. Dr. Bahl was not present but Philip Hamer, to whom Dr. Bahl had given a letter and a bundle of papers to pass on to other members of the IEC, attended. All present agreed to ask Council to pass a resolution asking Dr. Bahl to remove herself from her office at the Law Society to separate herself from complainants so that a proper investigation procedure could be launched. Mrs. Betts was called out of the meeting to receive a second complaint from MSF under the Dignity Policy. With the MSF’s memorandum was a letter from Mr. Hall who said that he had suffered behaviour from Dr. Bahl similar to that suffered by Mr. Wallman. Mr. Hall had ceased to be an employee of the Law Society on 8 October 1999. Mrs. Betts returned to the meeting to inform it of the second complaint. The meeting ended in time for those present to attend the Council meeting.

This commenced about 2.30pm. Council members were invited to read certain papers including correspondence between Mr. Sayer and Dr. Bahl, details of Mr. Wallman’s complaint, and also Mr. Hall’s complaint. Dr. Bahl joined the Council meeting within 5 or 10 minutes of the start and distributed a letter from her and other documents. In her letter she acknowledged that any complaint of bullying and harassment was serious and should be investigated, but said that no complaints were made about her at the EOC and accused Mr. Sayer of, amongst other things, “bullying and harassment”. After a debate the meeting was adjourned to try to agree an acceptable way forward.

Agreement was reached that a special committee of Council members, who were not going to be witnesses and did not have any conflict of interest, would receive further complaints, and would ask Lord Woolf, the then Master of the Rolls, to appoint an appropriate person to investigate complaints under the Dignity Policy. On 22 December Lord Griffiths was appointed. He indicated that he would require the assistance of two lay assessors, and two lay members of the EAT, Mrs. Rosemary Vickers and Mr. Sam Springer, were in due course appointed. There was no agreement that Dr. Bahl should stay away from the Law Society.

In the meantime, after a discussion with Mr. Sayer about Dr. Bahl’s assertion to Council that there had been no complaints against her at the EOC, Mrs. Betts instructed Mr. Lewis to make enquiries of the trade union at the EOC to find out whether that assertion was true or false. Mr. Lewis advised that the making of a misleading statement to Council lay outside the remit of the special committee and Lord Griffiths. The ET concluded that the reason for contacting the trade union at the EOC was to seek information which might be damaging to Dr. Bahl.

Mr. Lewis quickly ascertained that Dr. Bahl’s assertion to Council was not true. There had been formal complaints made by EOC staff against her, specifically alleging bullying and harassment, as she had been made aware.

On 29 December 1999 Mrs. Betts sent some written comments about Dr. Bahl to the special committee. She described the comments as “in effect a complaint on behalf of staff”. The colourful language used by Mrs. Betts in her comments was the subject of criticism by the ET, to which we will return.

Mrs. Betts, Dr. Bahl and Ms. de Sa continued to have regular weekly meetings. A further incident between Dr. Bahl and Mrs. Betts occurred at one of them on 6 January 2000. The meeting commenced later than planned because Mrs. Betts understood that Dr. Bahl was not ready; when she was ready, Mrs. Betts was not available. Dr. Bahl was angry with Mrs. Betts. She rewrote the minutes of the meeting so that they were critical of Mrs. Betts joining the meeting 1 ½ hours after the scheduled time. Mrs. Betts was very upset about this, but Dr. Bahl raised Mrs. Betts’ “lateness” again at the next IEC meeting. The ET commented that the only possible reason for repeating this unfair criticism was to undermine Mrs. Betts.

On 26 January 2000, there was a tannoy announcement in the Law Society inviting all members of staff to attend a branch meeting of MSF to discuss the Dignity Policy. The ET found that the tannoy message was a clear reference to Dr. Bahl and would have been embarrassing and humiliating. MSF had sought permission from Mrs. Betts to invite all staff, whether or not members of MSF, to the meeting. Mrs. Betts gave permission because she could see no reason to refuse it and MSF had said that there was considerable concern about the issue among staff who were not union members. The ET considered this to be, at best, naïve. It appears to have assumed that MSF asked Mrs. Betts, and that she gave, permission both to use the tannoy and for the particular terms of the message which was announced by tannoy.

On 21 February 2000 Lord Griffiths’ inquiry commenced. There were 5 complainants: Ms. Johnson, Ms. Cahalane (on behalf of herself and her staff), Mr. Wallman, Ms. Frazer and Mr. Goldsmith. Lord Griffiths said of Dr. Bahl that he had seldom heard a more fluent or articulate witness and that she is clearly a person of the highest intelligence and determination, being the dynamo driving forward much needed reform of the Law Society. He said that a great part of the credit for what had been achieved by way of reform in the Law Society must go to her. However, he found all the complaints proved, saying in para. 8.1 of his report signed on 10 March 2001:

“We regret that we have been driven to the conclusion that the Vice-President resorted at times to bullying tactics. She treated the staff without due consideration demanding immediate response to her own wishes without regard to their other duties. Her treatment of staff was at times demeaning and humiliating and at other times offensively aggressive. In many ways, she usurped the Secretary-General’s role as head of staff and introduced an atmosphere of fear and confusion in the line of command.”

On 1 March 2000 Dr. Bahl resigned as Chair of the IEC. On 14 March a statement by her was sent to the Law Society to be circulated among Council members. For the first time she referred to her ethnicity and gender as explaining the Law Society’s treatment of her. In her statement she made some factual assertions which the ET found to be untrue, for example that she was denied the right to be accompanied and represented, when she was represented by solicitors and leading counsel at the Law Society’s expense throughout the process.

On 16 March 2000 Council resolved to censure and suspend Dr. Bahl, to deprive her of all functions she exercised ex officio as Vice President and to hold a Special General Meeting on 19 April 2000. On 21 March 2000 Dr. Bahl resigned as Vice President and as a Council member. That was accepted by Council on 12 April.

On 15 March 2000 Dr. Bahl presented an Originating Application to the ET, alleging racial and sex discrimination against the Law Society, Mr. Sayer, Mrs. Betts and Ms. Johnson. The allegations were of direct discrimination in connection with the manner in which complaints about her by staff at the Law Society were handled and determined. We call this “the First Action”.

Dr. Bahl presented a second Originating Application on 20 June, alleging that the Law Society, Anne Coles ( the Legal Adviser to the Law Society since January 1993) and Anthony Brookes (Ms. Coles’ assistant) had discriminated against her by way of victimisation on the grounds of race and sex in the manner in which she was treated following the determination of the staff complaints between 10 March and 12 April 2000. The protected act upon which she relied was the presentation of the first Originating Application. She also complained of constructive and unfair dismissal, but that complaint was withdrawn in the course of the hearing before the ET. We need say little further about the second action as it was dismissed by the ET and that decision was not appealed.

The remarkable range of complaints made by Dr. Bahl is demonstrated by the issues which are set out by the ET in para. 2.5 of its decision relating to the First Action and which we append to this judgment. The ET described them in para. 2.2 as the issues into which the allegations contained in the first Originating Application and in the further particulars given by Dr. Bahl were defined and refined.

At the hearing before the ET Dr. Bahl was represented by leading counsel, two juniors and solicitors. The decision of the ET, which was signed by the Chairman, Mr. T.P Ryan, on 4 July 2001 runs to 126 pages, and we pay tribute to the ET for the careful and evidently painstaking exposition of its Extended Reasons.

The ET, after setting out the issues in section 2 of its decision, made a witness assessment in section 3. Having heard Dr. Bahl give evidence, it agreed with Lord Griffiths’ description of her abilities, but said that she was not a witness of truth. It also heard oral evidence from Mr. Sayer and Mrs. Betts. Mr. Sayer was found to be not an impressive witness, and, on occasions, to be evasive. It rejected his evidence in a number of particular respects. It found Mrs. Betts “given to overstatement and the use of graphic imagery in her language”. Her evidence caused the ET considerable concern and was rejected in particular respects. Ms. Johnson, who also gave evidence, was accepted as a patently honest witness.

The ET in section 4 made detailed findings of fact. In section 5 it set out the law, referring first to the statutory framework and then to certain cases, of which Glasgow City Council v Zafar [1998] ICR 120, Qureshi v Victoria University of Manchester [2001] ICR 863 and Anya v University of Oxford [2001] ICR 847 were the most relevant.

The ET in section 6 set out the submissions of the parties to what were the issues which it had to decide and it stated its approach. In section 7 it said that it recorded its findings on the various allegations and then considered whether it might draw inferences of less favourable treatment and if so to what extent. Finally it considered any issues of jurisdiction, which were left to the end so that it might be sure that its drawing of inferences would be done, and might be seen to be done, in accordance with Qureshi, by looking at the totality of the facts.

In section 7 the ET considered the various complaints made by Dr. Bahl, although, as we will show, in some relevant cases it substituted for Dr. Bahl’s complaints versions somewhat different from the actual complaints. If a factual allegation was made out, it considered whether what was done was to Dr. Bahl’s detriment, and, if it was, whether that amounted to less favourable treatment. For less favourable treatment it posed the question whether a white man would have been treated more favourably. All but three of the allegations against Mr. Sayer and all but five of the allegations against Mrs. Betts were rejected either because the facts alleged were not made out or because there was no detriment to Dr. Bahl found. All but one of the allegations against Ms. Johnson were rejected because the factual allegations were not made out or because no detriment was found.

In the case of Mr. Sayer, it was found that Dr. Bahl was subjected to detriment -

(1)

by Mr. Sayer being one of the panel on 9 December 1999 when he was connected with Mr. Wallman’s complaint in some way;

(2)

by Mr. Sayer “stalling” over whether Dr. Bahl could see the papers that were to be put to Council or address Council herself; and

(3)

by Mr. Sayer “between 30 August and 9 December 1999 not attempting to have an informal discussion with [Dr. Bahl] about the complaint.”

In the case of Mrs. Betts, the ET found that Dr. Bahl was subjected to detriment –

(1)

by Mrs. Betts being one of the panel on 9 December 1999 when connected with Mr. Wallman’s complaint in some way;

(2)

by breaking confidentiality on 13 December 1999 by confirming to Ms. de Sa that a complaint had been received about Dr. Bahl;

(3)

by Mrs. Betts on 15 December 1999 not alerting the IEC that Mr. Hall’s complaint was not validly made under the Dignity Policy, nor of the need to follow the procedure that had been established;

(4)

by Mrs. Betts on 26 January 2000 “permitting the Union to broadcast a tannoy message to all staff”;

(5)

by Mrs. Betts on 20 December 1999 instructing Mr. Lewis to make enquiries of the union at the EOC about other allegations against Dr. Bahl.

The ET does not explain in section 7 how the fifth item was in fact a detriment to Dr. Bahl.

In the case of Ms. Johnson the ET found detriment to Dr. Bahl in Ms. Johnson being one of the panel on 9 December 1999 when connected with Mr. Wallman’s complaint in some way.

One further detriment to Dr. Bahl was found in that a servant or agent of the Law Society on or about 31 December 1999 deleted emails from Dr. Bahl’s computer. However we need say nothing more about this as the ET could not say who was the culprit or that an effective cause of that act was the race or sex of Dr. Bahl. As the ET said, it was clear that there was a degree of ill will towards Dr. Bahl in the Law Society after the first complaint became public knowledge, and that ill will might have existed independently of race or gender.

The ET then considered the question of less favourable treatment in respect of the detriments found. It did not find any actual comparator who was treated more favourably. It did not discuss the attributes of the hypothetical comparator in comparison with whom it must have found Dr. Bahl was treated less favourably, but only referred to such comparator as a white man, and, in one instance, additionally as an office holder. Nevertheless, it found that Mr. Sayer treated Dr. Bahl less favourably than he would have treated a white person or man in similar circumstances. The ET expressly stated that it did not distinguish between the race or sex of Dr. Bahl in reaching that conclusion (see para. 7.4.19). It found a substantial element of deliberation in the acts he did which were detrimental to Dr. Bahl. However, the ET found, on the balance of probabilities, that he was not conscious of his behaviour towards her being in part motivated by her race or sex (para. 7.4.32).

In relation to Mrs. Betts the ET said (in para. 7.4.25) that it took into account her stated perception that Dr. Bahl was taking over her role. It commented:

“Understandably Mrs. Betts resented this.”

The ET found that in her use of language in the document dated 29 December 1999 which she gave to the special committee and in evidence to Lord Griffiths she “gave a clear indication that, perhaps unconsciously, her actions and omissions were on racial or gender based grounds” (para. 7.4.25). It said that looking at the totality of the facts found, the explanation it had rejected and the respect in which it found Mrs. Betts’ evidence wanting it drew the inference “that an effective cause of her treatment of Kamlesh Bahl was on both racial grounds and the ground of her sex” (para. 7.4.29). It found that Dr. Bahl was treated less favourably by Mrs. Betts than a white person or man would have been treated in similar circumstances (para. 7.4.30). Again the attributes of the hypothetical comparator were not explained. Again no distinction was drawn between discrimination on the grounds of race and sex, although the ET found that some of the expressions of Mrs. Betts to Lord Griffiths and in the document of 29 December 1999 did “betray a racial element” while another expression in that document supported the inference of sexual discrimination (para. 7.4.31). But, like Mr. Sayer, although the ET found a substantial element of deliberation in her acts to the detriment of Dr. Bahl, she was, on balance, not found to have discriminated consciously (para. 7.4.32).

The ET cleared Ms. Johnson of discrimination. Although it was her department which had drawn up the Dignity Policy and although she, like Mr. Sayer and Mrs. Betts, produced the same explanation for being on the panel on 9 December 1999, viz. that she understood that the words “connected in any way” meant that a person investigating the complaint should neither be a complainant nor an alleged perpetrator, the ET accepted her explanation and did not draw the inference that her taking part in the panel was caused by Dr. Bahl’s race or sex.

The Law Society, Mr. Sayer and Mrs. Betts appealed against the ET’s decision, submitting (so far as relevant to the appeal to this court) that the ET erred in law in finding any race or sex discrimination. Dr. Bahl cross-appealed. Initially that cross-appeal was very broadly framed, but was later narrowed to challenging four conclusions reached by the ET, and the EAT, in its judgment delivered by Elias J., records that Mr. de Mello, who was part of the wholly new team of counsel and solicitors appearing for Dr. Bahl, realistically recognised that he could not advance any of the grounds for attacking those conclusions save for the contention that the ET ought to have found conscious discrimination.

The EAT, in a judgment which is a model of lucidity, found that the ET had made a number of legal errors in the way it had approached its task of determining whether or not there was discrimination. The EAT (in paras. 77 – 128) gave a masterly analysis of the law in a way which has only been challenged on one point on this appeal (relating to an obiter remark of Sedley L.J. in Anya). It then turned to analyse the ET’s specific findings of unlawful discrimination. It pointed out that the ET, in reaching conclusions in section 7 on whether Dr. Bahl suffered a “detriment”, used that term in two different senses, viz. less favourable treatment (although the ET had said that that would be left to the end) and disadvantage resulting from unreasonable treatment. The EAT said that there were numerous places where the ET concluded that there was no detriment because the treatment was reasonable and was no different from that which would have been meted out to a white male. As the EAT rightly observed, that confused detriment with discrimination (para. 130 of the judgment).

The EAT next considered the conclusions of fact in respect of Mr. Sayer and Mrs. Betts respectively. After setting them out, the EAT examined the factors relied upon by the ET to support the inference of unlawful discrimination. In the case of Mr. Sayer, the EAT noted that the ET had focused on the different way in which a previous office holder, John Young, had been treated.

The EAT then turned to five challenges by the Law Society, Mr. Sayer and Mrs. Betts to the ET’s general approach.

The first challenge related to the failure by the ET to distinguish between race and sex discrimination. The EAT found that to be an error of law, the result being that the ET had failed to reach properly reasoned findings on the question whether Dr. Bahl had satisfied the ET that discrimination had occurred in respect of either ground (para. 159).

The second challenge was based on the ET stating in para. 7.4.19 that it did not know what was in the minds of Mr. Sayer and Mrs. Betts at any particular point. The EAT rejected that challenge on the basis that in that paragraph the ET was saying that there was no direct evidence of discrimination and that it could only draw inferences as to the unconscious motivation of the individual concerned (para. 161).

The third challenge related to the ET’s failure to construct a hypothetical comparator. The EAT rejected that because it was not an error of law not to do so, although it might be prudent for an ET to do so. The EAT said that the crucial question was whether the ET had properly considered the factors other than race or sex which, on its own findings, might realistically explain the conduct in question and, if it rejected such explanation, whether it had given cogent and considered reasons for so doing (para. 163).

The fourth challenge related to the ET’s inadequate reasoning and in particular why it rejected the obvious reasons for any adverse treatment, viz. in respect of Mr. Sayer the reason recognised in para. 4.99, and in respect of Mrs. Betts the reason recognised in para. 7.4.25. The EAT upheld that challenge, saying in para. 166:

“Where there is an obvious explanation for treatment, then the tribunal ought to indicate in its reasoning that it has recognised that fact, and it should set out those considerations which have led it to the conclusion either that other discriminatory considerations have wholly displaced the obvious explanation, or at least have justified the conclusion that the obvious explanation is not the only explanation and that race or sex considerations have also played a part in the decision.”

The EAT said that the ET did not at any stage appear to have appreciated that insofar as there was adverse treatment, the obvious explanation was the very antagonism which it had identified and which was wholly explicable for non-discriminatory reasons. It concluded that the ET did not give an adequately reasoned decision because it did not give proper consideration to the obvious possibility that the reason for adverse treatment may have been the fact that both Mr. Sayer and Mrs. Betts had their own reasons, untainted by sex or race, for their conduct (para. 169).

The fifth challenge was that the finding of discrimination was inconsistent with the evidence. The EAT considered the evidence in relation to each of Mr. Sayer and Mrs. Betts.

In the case of Mr. Sayer the EAT found very few pointers to support a finding of discrimination at all. It held that the treatment afforded to Mr. Young, not by Mr. Sayer, who was not then involved, but by others, cast no light whatsoever on whether Mr. Sayer was acting for unlawful discriminatory reasons. The EAT said that where the ET had accepted the explanation given for certain conduct, the fact that the reason was unjustified or unreasonable did not justify any inference of discrimination and that to hold otherwise was to fall into what it called “the Zafar trap”. The EAT noted that the ET only rejected Mr. Sayer’s explanation for his treatment with respect to the reason he gave for failing to discuss informally with Dr. Bahl after August 1999 the bullying allegations against her; but the EAT pointed to several significant factors which strongly suggested that considerations of race and sex could not properly explain that conduct.

In Mrs. Betts’s case the EAT found that in most respects the same difficulties presented themselves. It considered one feature not found in the case of Mr. Sayer, viz. the use by Mrs. Betts of language which the ET had found racist and sexist, but it found no support for the ET’s conclusion.

The EAT then considered the challenges directed to specific findings of the ET. In Mr. Sayer’s case it found that the finding of detriment in the lack of informal discussions with Dr. Bahl after the end of August 1999 differed from the complaint which she made, and so the ET lacked jurisdiction to make that finding. As for membership of the panel on 9 December 1999, the EAT upheld a submission that the ET had wrongly inferred discrimination from its finding that the conduct of Mr. Sayer and Mrs. Betts was unreasonable. The EAT upheld other criticisms of the ET’s decision on that point. As for the “stalling” finding, this again was not the complaint made by Dr. Bahl and again the EAT held that it was wrong for the ET to make the finding. However, the EAT also held that it would not interfere with the ET’s finding of detriment on this point.

In Mrs. Betts’ case the EAT said of the breach of confidentiality to Ms. de Sa that the ET did not find that Mrs. Betts’ explanation was not genuine. The EAT accepted the ET’s finding that the explanation was inadequate, but held that the inference of unlawful discrimination again infringed the Zafar principle. However, the EAT held that the finding of detriment on this point was open to the ET. As to the failure to alert the IEC that Mr. Hall’s complaint was not validly made, the EAT doubted the premise that that complaint could not properly be put before the IEC and Council, but held that the inference drawn by the ET that Mrs. Betts’ explanation was untruthful could not stand. Again the EAT found that the ET had fallen into the Zafar trap. The EAT also held that there was no detriment. In relation to the seeking of information of bullying complaints while Dr. Bahl was at the EOC, the EAT held that there were no facts justifying an inference of discrimination. Again, however, it rejected a submission that there could be no detriment, and said that, had it not concluded that the allegation was unsustainable, it would have been inclined to remit it to the ET for further findings. Finally, on the tannoy broadcast the EAT held that from the evidence there was no basis for the ET concluding that Mrs. Betts had given permission to use the tannoy nor that she knew of its contents. Accordingly the ET’s conclusion was inconsistent with the evidence.

The EAT expressed its conclusion in this way:

“239.

For all these reasons we consider that the tribunal has in a number of ways approached the issue of discrimination, both in relation to Mr Sayer and Mrs Betts, in an incorrect way. It has failed to take account of the obvious explanation for any detrimental treatment. Both Mr Sayer and Mrs Betts, for their own distinct and separate reasons, had reason to feel hostile toward Dr. Bahl. On occasions they have allowed their personal animosity towards Dr Bahl to distract them from their duty to act objectively and fairly towards her. But that is a far cry from establishing the very serious allegation that they have discriminated on grounds of race and sex. In addition, the tribunal has made findings of discrimination where no proper evidential basis for it exists; and it has inferred in some cases that unfair and unreasonable treatment alone is evidence of discrimination.

240.

We do not think that the tribunal has in truth stepped back to consider the implications of its conclusions, notwithstanding that it has expressly stated that it looked at the totality of the matter. Of course, it is possible that someone may discriminate in relation to a particular disciplinary process in certain respects but not in others. But if there is unconscious discrimination operating, one would not expect it to surface in such an apparently arbitrary and piecemeal way. The tribunal has not considered why these discriminatory motives would have influenced some decisions but not others.”

It summarised its decision in para. 248:

“We recognise that Dr. Bahl feels aggrieved by aspects of her treatment. She is obviously a woman of exceptional skills and talents which, effectively harnessed, could make a significant contribution to any organisation. She may with some justification feel that neither Mr Sayer nor Mrs Betts gave her the support they might have done and arguably ought to have done. They - and particularly Mrs Betts - became actively involved in seeking to prosecute the case against her and indeed ultimately Mrs Betts herself formally complained about Dr Bahl’s conduct. Mrs Betts had understandably been upset by Dr. Bahl’s behaviour and its effect on her staff, and felt her position being undermined. As a consequence, as the tribunal’s decision shows, she did not at all times maintain the professional detachment that her position required. We are, however, satisfied that there is no proper basis for concluding that she was treating Dr. Bahl less favourably because of Dr. Bahl’s race or sex. Similarly, there is even less justification in the light of the evidence for imputing such improper discriminatory conduct to Mr Sayer.”

Accordingly it allowed the appeals and overturned the findings of unlawful discrimination against Mr. Sayer and Mrs. Betts, and said that it followed that the liability of the Law Society also fell away.

On the appeal by Dr. Bahl to this court Mr. de Mello and Mr. Juss appear for her. Mr. Goulding Q.C. appears for the Law Society and Miss Simler for Mr. Sayer and Mrs. Betts, as they have done at every stage of these proceedings. We are grateful to them for the considerable assistance which they have given us in the expeditious conduct of this hearing.

At the commencement of the hearing Dr. Bahl supplied us with a personal statement in which she indicated her firmly held belief that she would not get a fair hearing in this court. She applied for an adjournment and for permission to rely on further evidence. We refused both applications, but deferred our reasons until the completion of the hearing.

The application for an adjournment was based on two grounds. The first was that the appellant had submitted an application to the European Court of Human Rights based in large part on the assertion that this court is acting in breach of Article 6 of the European Convention on Human Rights. She submits that Maurice Kay L.J. should not have sat in the court hearing her appeal. And she submits that she was entitled to require Peter Gibson L.J. and Latham L.J. to make a declaration of interest in relation to these proceedings. Both these complaints were the subject matter of statements made by members of this court at the beginning of the hearing.

The application to the European Court of Human Rights cannot properly form the basis for any adjournment of these proceedings. If Dr. Bahl has any complaint which affects these proceedings which can properly form the subject matter of an application to the European Court of Human Rights, that complaint can only be made after the completion of the proceedings and once the outcome is known. It is trite Convention law that the European Court of Human Rights will only consider an application once all available domestic remedies have been exhausted. It follows that an application to the Court cannot justify an adjournment.

The second ground is based on the application for permission to rely on further evidence. The evidence which we are asked to consider is contained in a witness statement made by Dr. Bahl, sworn on 2 June 2004. In this statement, she draws this Court’s attention to the fact that in April 2004, Mr. Sayer was arrested by the police for attempting to pervert the course of justice. It is submitted on Dr. Bahl’s behalf that the circumstances giving rise to Mr. Sayer’s arrest are capable of having a significant effect on the conclusions reached by the ET and the EAT, and that accordingly this court should adjourn the appeal until such time as the outcome of the police inquiries is known.

From Dr. Bahl’s witness statement it is clear that the arrest of Mr. Sayer arises out of a complaint which was received by the Solicitors Disciplinary Tribunal on 16 October 2002 from a “Mr. Thomas Fernando” to the effect that Dr. Bahl had conducted herself in a manner which tended to bring the solicitors’ profession into disrepute. The main particulars were that she had bullied numerous members of the Law Society’s staff and had a long history of bullying at the EOC, that the Griffiths Inquiry had found her to be a liar, that the ET found her to have lied in her evidence to it, and the ET found that she had lied on five occasions to the Council of the Law Society. On 14 July 2003, Dr. Bahl was notified by a Mr. A. Bogan, a member of the Council, that he had conduct of the matter on behalf of “Mr. Fernando”. A witness statement to this effect was sworn by Mr. Bogan before Mr. Sayer on 13 July 2003. “Mr. Fernando’s” complaint was supported by a statement from Mrs. Betts. It was also said that it was supported by a statement from Mr. Sayer, although no such statement has been seen by Dr. Bahl.

By the date of the first hearing before the Solicitors’ Disciplinary Tribunal on 22 July 2003, Dr. Bahl, who was represented by Mr. Juss, had obtained a report from a private investigator. This showed that the address used by “Mr. Fernando” was false and was the address of a mailbox company. His name was not the name of the box holder for the relevant box. There was no means of identifying “Mr. Fernando” as the e-mail address used by him was one specifically designed to ensure anonymity. There were a number of other facts unearthed by the private investigator which connected “Mr Fernando” to a web-site in the name of “Henry Alighai”. That web-site contained a substantial amount of derogatory material relating to Dr. Bahl which suggested some form of campaign against her. Having considered this material, the Solicitors’ Disciplinary Tribunal ordered “Mr Fernando” to appear in person at the next hearing on 7 August 2003 and to provide documentary evidence of his identity, such as a passport. By letter of 1 August 2003, “Mr. Fernando” informed the Solicitors’ Disciplinary Tribunal that he would not be appearing in person and that he was withdrawing the complaint. A copy of a Netherlands passport was enclosed. This copy was examined by the Netherlands Embassy which stated that it was false.

At the Solicitors’ Disciplinary Tribunal hearing on 7 August 2003, “Mr. Fernando” did not appear. The Tribunal was told about the findings as to the passport, and was also provided with a report from an handwriting expert which suggest that there might be some similarities between the signatures of Mr. Sayer and “Mr. Fernando”. The complaint was accordingly adjourned for nine months on the basis that the matter might be the subject of a police investigation.

It is clear that the matter did become the subject matter of a police investigation, which, it would appear, is still in train. Dr. Bahl’s submission is that this material suggests that Mr. Sayer has fabricated the complaint using a fictitious name and has been supported by Mrs. Betts, who provided a statement. If this is correct, Dr. Bahl submits that the behaviour of both Mr. Sayer and Mrs. Betts in relation to this complaint supports her claim that she was discriminated against by them on the grounds of both race and sex, and that accordingly this court should not hear the appeal until the police inquiries have been concluded so that a full and proper picture can be obtained.

Although presented as an application for permission to rely on new evidence, Mr. de Mello realistically accepts that the witness statement of Dr. Bahl merely lays the ground for the application for the adjournment. In itself it sets out the basis for the allegation inherent in the witness statement, that Mr. Sayer was the malicious author of the complaint. What Dr. Bahl in truth seeks is an adjournment in order to obtain further evidence which, she hopes, will establish that the allegation was true. Of itself, the material at present before the court does no more than raise questions; and accordingly the application to rely on it is refused.

The real issue therefore is whether or not Dr. Bahl should have an adjournment for the purpose of seeking answers to those question. The respondents oppose the application. They submit that Dr. Bahl has known of the allegations that she is seeking to make as long ago as August last year. In January 2004, the appeal was fixed for hearing without any suggestion on the part of Dr. Bahl or her representatives that she would be seeking an adjournment. The material in support of the application was not received by this court until 4 June 2004. An adjournment would have to be for a substantial period of time in a matter which has already been long and drawn out. There are, in addition, further proceedings relating to other complaints that Dr. Bahl has made which have been adjourned pending the determination of this court in this appeal. In any event, it is submitted, the events of 2002 cannot have any bearing on the issues which were the subject matter of the decision of the ET and EAT, which essentially related to events in 1998 and 1999.

In our judgment, there is no justification for an adjournment. The application has been made far too late; but of more importance, we cannot see that it would be right to adjourn this appeal for what would, in reality be an uncertain period of time in order to determine whether or not Dr. Bahl is able to put before the court material which supports her allegations. Even if the allegations are made out, there is nothing to indicate that they would throw any light upon the question whether or not Mr. Sayer or Mrs. Betts behaved in a sexually or racially discriminatory way towards the appellant. If established, they could support the argument that either or both were motivated by a level of animosity which could support an assertion, were it relevant, of malice. But that is not the issue with which this appeal is concerned.

We start by setting out the applicable law.

By s. 1(1) of the Sex Discrimination Act 1975 (“the 1975 Act”)

“A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if –

(a)

on the ground of her sex he treats her less favourably than he treats or would treat a man….”

S. 5(3) provides that a comparison of the cases of persons of different sex under s. 1(1)

“must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.”

These provisions are reflected in substantially similar provisions in ss. 1(1) and 3(4) of the Race Relations Act 1976 (“the 1976 Act”). In relation to both Acts it would be unlawful for the Law Society, as an organisation falling within s.12 of the 1975 Act and s.11 of the 1976 Act, to discriminate against a person by subjecting her or him to a detriment. In either case the burden of proving unlawful discrimination is upon the applicant and the standard of proof is upon the balance of probabilities.

It is well understood that discrimination is not necessarily conscious on the part of the discriminator. Courts and tribunals have for long been sensitive to the fact that this may result in difficulties for a person who seeks to prove discrimination. This was the context in which Neill L.J. formulated a number of principles and guidance in King v. Great Britain – China Centre [1992] ICR 516, 528-529. They included the following:

“(3)

The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal….

(4)

Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances, the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds….

(5)

It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts.”

That approach, which applies equally to sex discrimination and racial discrimination, was expressly approved by the House of Lords in Zafar [1998] ICR at p. 126 (per Lord Browne-Wilkinson, with whom all their other Lordships agreed). Although it has stood the test of time, a number of interstitial problems have arisen and have been resolved.

The first concerned the situation in which the alleged discriminator gave an explanation in terms of his own unreasonable conduct whilst denying discrimination on the proscribed grounds: at its simplest, “I may have treated my employee unreasonably, but I treat all my employees like that, white or black, male or female”. A misreading of King might have produced the analysis that such an unreasonable explanation in itself justified an inference of discrimination. However, such an erroneous approach was identified and terminated by Zafar. Lord Browne-Wilkinson said (at p. 124B-C):

“the conduct of a hypothetical reasonable employer is irrelevant. The alleged discriminator may or may not be a reasonable employer. If he is not a reasonable employer he might well have treated another employee in just the same unsatisfactory way as he treated the complainant, in which case he would not have treated the complainant “less favourably” for the purposes of the Act of 1976. The fact that, for the purposes of the law of unfair dismissal, an employer has acted unreasonably casts no light whatsoever on the question whether he has treated the employee ‘less favourably’ for the purposes of the Act of 1976.”

His Lordship then commended the words of Lord Morison in the Court of Session, [1977] SLT 281, 284:

“It cannot be inferred, let alone presumed, only from the fact that an employer has acted unreasonably towards one employee that he would have acted reasonably if he had been dealing with another in the same circumstances.”

The next issue to be clarified by the House of Lords was as to the position where discrimination is one of several reasons for the less favourable treatment. In Nagarajan v. London Regional Transport [2000] 1 AC 501 it was held that the applicant only has to prove that the proscribed ground had “a significant influence on the outcome” (per Lord Nicholls of Birkenhead, at p. 513B).

At this point, it is appropriate to refer to Anya, a decision of this Court. Its ratio takes matters no further than King and Zafar, both of which are cited in the judgment of the Court given by Sedley L.J. However, the judgment contains an obiter passage which has attracted debate in a number of cases including the present appeal. It reads ([2001] ICR at p. 857A):

“ As Neill LJ pointed out in King…., such hostility [i.e. unreasonableness] may justify an inference of racial bias if there is nothing else to explain it: whether there is such an explanation…..will depend not on a theoretical possibility that the employer behaves equally badly to employees of all races but on evidence that he does.”

It has been suggested, not least by Mr. de Mello in the present case, that Sedley L.J. was there placing an important gloss on Zafar to the effect that it is open to a tribunal to infer discrimination from unreasonable treatment, at least if the alleged discriminator does not show by evidence that equally unreasonable treatment would have been applied to a white person or a man.

In our judgment, the answer to this submission is that contained in the judgment of Elias J. in the present case. It is correct, as Sedley L.J. said, that racial or sex discrimination may be inferred if there is no explanation for unreasonable treatment. This is not an inference from unreasonable treatment itself but from the absence of any explanation for it. However, the final words in the passage which we have quoted from Anya are not to be construed in the manner that Mr. de Mello submits. That would be inconsistent with Zafar. It is not the case that an alleged discriminator can only avoid an adverse inference by proving that he behaves equally unreasonably to everybody. As Elias J. observed (para. 97):

“Were it so, the employer could never do so where the situation he was dealing with was a novel one, as in this case.”

Accordingly, proof of equally unreasonable treatment of all is merely one way of avoiding an inference of unlawful discrimination. It is not the only way. He added (ibid.):

“The inference may also be rebutted – and indeed this will, we suspect, be far more common – by the employer leading evidence of a genuine reason which is not discriminatory and which was the ground of his conduct. Employers will often have unjustified albeit genuine reasons for acting as they have. If these are accepted and show no discrimination, there is generally no basis for the inference of unlawful discrimination to be made. Even if they are not accepted, the tribunal’s own findings of fact may identify an obvious reason for the treatment in issue, other than a discriminatory reason.”

We entirely agree with that impressive analysis. As we shall see, it resonates in this appeal.

Several of these points have now been synthesised in Shamoon v. Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11, [2003] ICR 337. Lord Nicholls of Birkenhead referred to the question whether the claimant received less favourable treatment than the appropriate comparator as “the less favourable treatment issue” and the question whether the less favourable treatment was on the relevant proscribed ground as “the reason why issue”. He added (at paras. 7-8):

“Thus the less favourable treatment issue is treated as a threshold which the claimant must cross before the tribunal is called upon to decide why the claimant was afforded the treatment of which she is complaining.

No doubt there are cases where it is convenient and helpful to adopt this two step approach to what is essentially a single question: did the claimant, on the proscribed ground, receive less favourable treatment than others? But, especially where the identity of the relevant comparator is a matter of dispute, this sequential analysis may give rise to needless problems. Sometimes the less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue. The two issues are intertwined.”

And, a little later (at para. 11) he said:

“….employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was. Was it on the proscribed ground which is the foundation of the application? That will call for an examination of all the facts of the case. Or was it for some other reason? If the latter, the application fails. If the former, there will be usually no difficulty in deciding whether the treatment, afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others.”

It is important to keep in mind the words “would have been”. The statutory definition of discrimination refers to less favourable treatment than the discriminator “treats or would treat” a man or a person of different sex or race. This is what has led on occasions to those “arid and confusing disputes” about hypothetical comparators. In a unique case such as that of Dr. Bahl it is essential to ensure that the hypothetical comparator is a Vice-President who is on the receiving end of serious allegations of bullying but who is a white male. Put another way: would the treatment she received have been the same if she had been a white and/or male Vice-President on the receiving end of the same allegations?

Finally, two other legal principles are in play in this appeal. The law is uncontroversial but its application is a matter of dispute. The first is what we may describe as a pleadings point. It was expressed in this way by Peter Gibson L.J. in Chapman v. Simon [1994] IRLR 124 (at para 42):

“….the complainant is entitled to complain to the Tribunal that a person has committed an unlawful act of discrimination, but it is the act of which complaint is made and no other that the Tribunal must consider and rule upon…. If the act of which complaint is made is found not to be proven, it is not for the Tribunal to find another act of racial discrimination of which complaint has not been made to give a remedy in respect of that other act.”

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

Dr. Bahl’s grounds of appeal for which she has permission are the following:

(1)

The EAT erred in law in holding that to the extent that the ET found discriminating treatment from unreasonable treatment alone, its reasoning would be flawed and the finding of discrimination could not stand.

(2)

The EAT erred in law in holding that it is not open to infer discrimination from unreasonable treatment, at least if the employer does not show that equally unreasonable treatment would have been meted out to a white person or man.

(3)

The EAT erred in law in holding that it is not legitimate to infer that an ET must properly have directed itself in law because it was referred to relevant authorities by the parties, nor that it must have had regard to relevant facts because the submissions made reference to them, and/or that it is only in a limited class of case, where the reasoning of the ET is less than satisfactory, that it will be legitimate for the EAT to have regard to the submissions to the ET and to consider the reasoning of the ET in light of those submissions.

(4)

The EAT was wrong in concluding that the ET did not give an adequately reasoned conclusion because inter alia it did not give proper consideration to the obvious possibility that the reason for any adverse treatment may have been the fact that both Mr. Sayer and Mrs. Betts had their own reasons, untainted by race or sex, for their conduct.

(5)

The EAT erred in law in holding that the ET erred in law in failing to distinguish between the elements of alleged race or sex discrimination.

(6)

The EAT erred in law in concluding that the ET had in a number of ways approached the issue of discrimination, both in relation to Mr. Sayer and Mrs. Betts in an incorrect way and that it failed to take account of the obvious explanation for any detrimental treatment.

(7)

The EAT erred in law in upholding the appeals of the Respondents and by substituting its own decision for that of the ET in respect of each and every ground of appeal raised by the Respondents.

(8)

Alternatively the EAT erred in law in failing to remit the matter to a fresh ET in the circumstances of this case.

Dr. Bahl also seeks permission to appeal on a further ground, permission for which was refused by the EAT, viz. that the EAT erred in law in holding that the ET had no jurisdiction to find that Mr. Sayer had failed to discuss informally the complaints with Dr. Bahl after 30 August 1999.

The Law Society by its Respondent’s Notice asks this court to uphold the EAT’s order on the following different or additional grounds.

(1)

The ET erred in failing to identify the material circumstances relevant in order for there to be a comparison of the treatment of Dr. Bahl with the treatment of a hypothetical white person or man in accordance with s. 3 (4) of the 1976 Act and s. 5 (3) of the 1975 Act.

(2)

The ET erred in making a finding of race and sex discrimination in circumstances in which it had found that it did not know what was in the minds of Mr. Sayer or Mrs. Betts, the alleged discriminators. The ET ought to have found that no allegation of race or sex discrimination was proven in such circumstances.

(3)

The ET erred in law in concluding that the following acts were capable of amounting to a detriment to which Dr. Bahl was subjected:

(i)

Mr. Sayer and Mrs. Betts participating in the panel of three which decided that there was a case of bullying which required investigation;

(ii)

Mr. Sayer stating, in response to a request by Dr. Bahl to be allowed to see papers to be considered by Council, and to circulate her own views, that he would take legal advice;

(iii)

Mrs. Betts confirming to Ms. de Sa that a complaint had been made against Dr. Bahl;

(iv)

Mrs. Betts instructing a solicitor to make inquiries of the Union at the EOC to discuss whether complaints of bullying or harassment had been made against Dr. Bahl while she was chair of the EOC;

(4)

The ET erred in concluding that Mr. Sayer could not have believed for a moment that Dr. Bahl might not be entitled to see papers to be circulated to Council. The evidence before the ET was not capable of supporting that inference.

Mr. Sayer and Mrs. Betts by their Respondents’ Notice take points similar to those taken by the Law Society in its Respondent’s Notice.

Mr. de Mello in his skeleton argument written jointly with Mr. Juss and orally made a number of general submissions before turning to his specific submissions on the grounds of appeal. He pointed out that this court should concentrate on whether the ET’s decision was correct rather than that of the EAT and he submitted that the ET’s decision was unassailable, its conclusion being open to it on the findings of fact which it made and its reasons being adequately explained, whereas the EAT made the grave error of substituting its own decision for that of the ET.

It is not in dispute that the EAT’s jurisdiction is limited to points of law, and that the EAT could not properly interfere with the ET’s conclusions unless the ET was shown to have erred in law. The EAT expressly recognised this (para. 125). It is also not in dispute that the ET must tell the parties why they have won or lost, with a sufficient account of the facts and the reasoning to enable the EAT to see whether a question of law arises.

Mr. de Mello challenged the view taken by the EAT that unreasonable treatment of a complainant alleging discrimination by an employer, if there is nothing else to explain it, cannot in itself lead to an inference of discrimination in the absence of evidence from the employer that equally unreasonable treatment would have been meted out to the comparator. The basis of that challenge was the remarks made by Sedley L.J. in Anya.

For the reasons which we have given in para. 101 above, we do not accept the validity of that challenge. The principle laid down in Zafar is clear and in para. 98 we have set out the material passages in Lord Browne-Wilkinson’s speech and in Lord Morison’s judgment, which was approved by the House of Lords. If Mr. de Mello was right, in Zafar, where there was no evidence from the employer of unreasonable treatment of comparators, the House of Lords should not have concluded that the appeal from the Court of Session should be dismissed as it would have been open to the ET to draw the inference which it did.

Mr. de Mello submitted that the ET’s reasoning on why it inferred racial and sexual discrimination against Mr. Sayer and Mrs. Betts was adequate. However, when pressed on the reasons given by the ET for drawing that inference, he accepted that it might appear that the ET had not sufficiently explained why it had reached that conclusion, and submitted that it was legitimate to have regard to the submissions of the parties to make good any inadequacy in the reasoning. For this he relied on the decision of this court in English v Emery Reimbold & Strick Ltd. [2002] EWCA Civ 605, [2002] 1 WLR 2409 at para. 26, where Lord Phillips M.R. said that the appellate court should review the allegedly inadequately reasoned judgment in the context of the material evidence and submissions at the trial to see whether it was apparent why the decision was reached.

The EAT, in our judgment, was right to point out in para. 124 that it will only be in a limited class of case that it will be possible to make good inadequate reasoning in this way. In English this court was able to formulate the central issue in one of the cases it was considering by reference to the submissions and evidence (see paras. 42 and 43 of the judgment). In a case such as the present where there were disputed questions of law, fact and inference, the mere fact that those disputed matters were referred to in the lengthy closing submissions does not indicate the ET’s reasoning in resolving those issues. The parties were entitled to know what conclusions were reached on each disputed question and why. Mr. de Mello relied on the fact that the parties had drawn the attention of the ET to various passages in Zafar and that the ET had itself referred to that case as the starting point in a case such as the present. However, the parties were not in agreement before the ET as to how the Zafar test should be applied and it is worthy of note that the only passage cited from Zafar by the ET (see para. 5.14) did not include the passages containing the ratio of the case to which we have referred in para. 98. It is impossible to conclude from the submissions made to the ET that the ET must have reasoned correctly in accordance with Zafar. Similar difficulties apply to drawing inferences of what the ET must have concluded from the evidence adduced before the ET when so much was in controversy.

This ground, relating as it does to whether the ET gave proper consideration to the possibility that Mr. Sayer and Mrs. Betts had reasons untainted by race or sex for any adverse treatment of Dr. Bahl, raises the most important issue on this appeal.

Mr. de Mello submitted that the ET rejected the explanations put forward by Mr. Sayer and Mrs. Betts for their discriminatory treatment of Dr. Bahl and that there was sufficient material placed before the ET to support its finding of discrimination.

This issue must be looked at against what Mr. Goulding rightly called key passages in the ET’s decision.

In relation to Mr. Sayer the first is in para. 4.22 where the ET find that from July 1998 until August 1999 the relationship between Mr. Sayer and Dr. Bahl was good. As we have noted in para. 3 above, it was Mr. Sayer who had taken the initiative to encourage Dr. Bahl to stand for election, in effect inviting her to be his running mate, and working closely with her and helping her.

The second key passage is para. 4.96 where the ET say that after the meeting between Mr. Sayer, Mr. Napier and Dr. Bahl on 26 August 1999 the relationship between them went quite cold, that she tended to ignore him and he made no real attempt to speak to her. The background to that was the events which we have set out in paras. 5 – 16, most immediately those occurring in Atlanta involving Ms. Frazer and Mr. Goldsmith, which led to the meeting on 26 August and to what Mr. Sayer said to her at that meeting and Dr. Bahl’s defensive and angry reaction, blocking the conversation.

The third key passage relating to Mr. Sayer is para. 4.99 the contents of which we have recounted in para. 19, including the final sentence which we there cite. There the EAT makes a finding as to Mr. Sayer’s reason, so far as he was concerned, for the cooling off between Mr. Sayer and Dr. Bahl, viz. his well-founded belief that Dr. Bahl by her behaviour could damage the Law Society and his position as President. That reason has nothing to do with her race or gender. When the ET goes on to consider Mr. Sayer’s subsequent behaviour towards Dr. Bahl, and explains his omission to read her email of 8 September 1999 by the comment that he had set his face against her (para. 4.104), that must be understood in the light of the finding in para. 4.99 as to the reason for the cooling off. However, when the ET, considering discrimination in section 7, returns at para. 7.4.14 to the comment that Mr. Sayer set his face against Dr. Bahl, it appears to consider that as indicating a discriminatory attitude by him. That is plainly wrong.

In relation to Mrs. Betts, Mr. Goulding pointed first to paras. 4.61 – 4.63. There the ET found that on 6 April 1999 she noticed that Mr. Wallman was exhibiting signs of stress and attributed the deterioration in his confidence to the difficulties with Dr. Bahl. The ET also found that when on 14 April 1999 she met Mr. Wallman again, he stated his belief that Dr. Bahl’s behaviour breached the Dignity Policy and said that he would find it too traumatic to discuss his concerns with Dr. Bahl. The ET found that Mrs. Betts tried to find a discreet low-key solution which would remove the risk of a formal complaint, which would be damaging to the Law Society and to those involved. They must have included Dr. Bahl. Mrs. Betts had previously on 15 October 1998 been shocked by Dr. Bahl’s tirade against Mr. Hall and had then spoken to Dr. Bahl about managing her behaviour. As the head of the Law Society’s staff Mrs. Betts was properly concerned about the effect of Dr. Bahl’s behaviour on members of the staff.

The second key passage relating to Mrs. Betts is para. 4.70 where Mrs. Betts had been admonished in Ms. Johnson’s presence by Dr. Bahl on 23 June 1999 for not keeping file notes about Mr. Wallman. That admonition in her presence caused Ms. Johnson to protest to Dr. Bahl. Mrs. Betts was also the object of Dr. Bahl’s anger when attending the meeting on 6 January 2000, to which we refer in para. 48. The ET found (in para. 4.2.78) that the rewriting by Dr. Bahl of the minutes to be critical of Mrs. Betts was not a fair record of what transpired and that Mrs. Betts’ distress was apparent at the hearing before it.

The third key passage was at para. 7.4.25 where the ET said that it took into account Mrs. Betts’ stated perception that Dr. Bahl was taking over her role and the ET commented: “Understandably, Jane Betts resented this.”

Mr. Goulding also drew attention to two further passages relating to both Mr. Sayer and Mrs. Betts. One was para. 7.4.32. There the ET found “a substantial amount of deliberation” in the acts detrimental to Dr. Bahl of Mr. Sayer and Mrs. Betts, but it also found that they were not conscious of their behaviour being motivated by Dr. Bahl’s race and sex.

The other passage in the ET’s decision to which Mr. Goulding drew attention is para. 7.4.41 where the ET found it clear that there was “a deal of ill will” towards Dr. Bahl in the Law Society after Mr. Wallman’s complaint became public knowledge. There the ET also accepted that that ill will might have existed independently of any element of race or gender.

With those findings in mind, we turn to “the reason why issue”. Has the ET explained why it has concluded that in this case Mr. Sayer and Mrs. Betts treated Dr. Bahl adversely on the ground of Dr. Bahl’s race and sex? The general duty to give such explanation is even more important in the present case for two reasons. One is that it has found non-discriminatory considerations present which might explain Mr. Sayer’s and Mrs. Betts’ adverse treatment of Dr. Bahl. The other is that it is not conscious but unconscious discrimination which the ET concludes has occurred (see Hazelhurst at para. 24 per Pill L.J.).

The ET in the case of Mr. Sayer looked at “the totality of the facts we have found”, “the explanations we have rejected” and “the respects in which we have found Robert Sayer’s evidence wanting” when drawing the inference that an effective cause of the treatment of Dr. Bahl was her race and sex (para. 7.4.17). But it does not appear from the decision precisely what it is that led the ET to conclude that race or sex played any part in motivating Mr. Sayer’s adverse treatment of Dr. Bahl. There are no previous incidents among the primary facts found which indicate a racist or sexist attitude on the part of Mr. Sayer. On the contrary, he had been a supporter of Dr. Bahl. Whilst he did not impress the ET as a witness and some of the explanations he gave for particular conduct (for example, not reading the email of 8 September from Dr. Bahl) were rejected, it is not apparent from the decision why the ET should have jumped to the conclusion that race and sex were subconscious motivating considerations. In particular the ET does not explain why the reason it found as a fact in para. 4.99 for the cooling off between Mr. Sayer and Dr. Bahl did not explain the adverse treatment which it found. It is all the more surprising that the ET reached its conclusion given that it rejected the greater part of the allegations of discrimination, many more serious than those which it upheld, and yet found discrimination in relation to a few comparatively minor and inconsequential allegations. It would be astonishing for a person subconsciously motivated by discriminatory considerations only to act in a discriminatory fashion in such a haphazard way. There is no explanation given by the ET for this.

In the case of Mrs. Betts, the ET (in para. 7.4.29) makes the same statement as to what it looked at as it did in the case of Mr. Sayer when drawing the same inference against her, and, subject to one point, similar comments to those which we have made in the last paragraph apply. Mrs. Betts had initially welcomed Dr. Bahl’s appointment as an elected officer. The ET does not explain why the understandable resentment which it found Mrs. Betts felt at the usurpation of her role (also found by Lord Griffiths), as well as Mrs. Betts’s proper concern at Dr. Bahl’s treatment of members of staff and Mrs. Betts’s distress at her own treatment by Dr. Bahl, do not explain any adverse treatment by Mrs. Betts of Dr. Bahl.

That one point is Mrs. Betts’s use of language. The ET found that she had used inappropriate racist language “deliberately, repeatedly and graphically”, but only three examples of allegedly racist language were given by the ET as well as one example of allegedly sexist language and of those four examples none was said or written to Dr. Bahl, three were contained in the document supplied on 29 December 1999 to the special committee and the fourth was in a statement made by Mrs. Betts to Lord Griffiths. The allegedly racist examples were:

Dr. Bahl, we were told by Mr. de Mello, is a Hindu. The ET does not explain why any of the three examples indicates racism or displays racial overtones in relation to a black Asian Hindu. The language is vivid, but we find it impossible to see how in context it can support an inference of racial discrimination. We respectfully agree with the comment of the EAT that each phrase must be considered in context and with its reasoning in holding that none of these examples justified an inference of race discrimination.

As for the sole example of what is said to be sexist language, Mrs. Betts told the special committee:

“There was a further tirade from Kamlesh to me in the ladies’ toilets at the Bournemouth conference on the subject of Andrew Hall. I was embarrassed but also fascinated by her self-control. Once she had got her way she went back to quite girlish charming chatter ….”

The contrast in Dr. Bahl’s behaviour drawn by Mrs. Betts is graphic, but we are at a loss to understand how this language points to a sexually discriminatory attitude or otherwise justifies an inference of sexual discrimination by Mrs. Betts against her own sex. Again we agree with the EAT’s reasoning and conclusion on this.

In Hazelhurst Pill L.J. said at para. 28:

“In my judgment, it is quite impossible, looking at the detailed findings as a whole, to find a decisive pointer towards a racially discriminatory attitude. It is impossible to find in the judgment of the Employment Tribunal any reason why they drew the inference they did from the facts they found. Bingham LJ stated in Meek [v City of Birmingham Council [1987] IRLR 250] that a party before an employment tribunal is entitled to know why it lost. The respondents in this case have no sufficient indication of that from the judgment of the Employment Tribunal. In the absence of reasoning, there is a real danger that the inference has been wrongly drawn.”

Other cases, such as Effa v Alexandra Health Trust, an unreported decision of this court on 5 November 1999, contain similar warnings against an ET drawing an inference of discrimination without explaining the factual basis from which that inference can properly be drawn.

That applies with even more force to a case such as the present where the ET has made positive findings of fact which give non-discriminatory reasons why Mr. Sayer and Mrs. Betts acted as they did. We do not accept Mr. de Mello’s assertions that the ET rejected Mr. Sayer’s and Mrs. Betts’ explanations for their hostility to Dr. Bahl. A charge of discrimination is a very serious matter to find established against anyone, let alone the President and the Secretary General of the Law Society. Fairness demanded that the finding of discrimination be adequately explained and shown to have a proper evidential basis. That was not done. In truth there was no such basis and instead we are left with the findings at para. 4.99 and 7.4.25 which provide the explanation for any adverse treatment of Dr. Bahl.

Mr. de Mello submits that the ET made no error of law in saying as it did in para. 7.4.19:

“We do not distinguish between the race or sex of the Applicant in reaching this conclusion. Our reason for that is simple. The claim was advanced on the basis that Kamlesh Bahl was treated in the way she was because she is a black woman. Kamlesh Bahl was the first office holder that the Law Society had ever had who was not both white and male. There was no basis in the evidence for comparing her treatment with that of a white female, or a black male, office holder. We can only draw inferences. We do not know what was in the minds of Robert Sayer and Jane Betts at any particular point. It is sufficient for our purposes to find, where appropriate, that in each case they would not have treated a white person or a man less favourably. If we need to refine our approach for the purposes of dealing with remedy the parties may address this issue at that stage.”

He says that the ET was entitled to treat the two discriminatory elements together given its finding that it was a unique case.

This is a puzzling passage. It says that there was no basis in the evidence for comparing the treatment of Dr. Bahl with that of a white female, or a black male office holder, and yet the ET had to make a comparison on the evidence between her treatment and that of an appropriate comparator. It is not disputed that to find discrimination on the ground of race or sex the ET must find that subjectively racial or sexual considerations were in the mind of the discriminator, but here the ET says that it does not know what was in the minds of Mr. Sayer and Mrs. Betts at any particular point. It acknowledges that there may be a need to refine its approach at the remedy stage, but why should that need arise at so late a stage in the proceedings if the ET has properly found both sex and race discrimination?

What the ET has plainly omitted to do is to identify what evidence goes to support a finding of race discrimination and what evidence goes to support a finding of sex discrimination. It would be surprising if the evidence for each form of discrimination was the same. For example, so rare is it to find a woman guilty of sex discrimination against another woman that one might have expected the ET to spell out the evidence which led it to infer such discrimination by Mrs. Betts against Dr. Bahl. In our judgment, it was necessary for the ET to find the primary facts in relation to each type of discrimination against each alleged discriminator and then to explain why it was making the inference which it did in favour of Dr. Bahl on whom lay the burden of proving her case. It failed to do so, and thereby, as the EAT correctly found, erred in law.

Ground 6 reverts in part to Ground 4 in challenging the EAT’s conclusion on the ET’s failure to take account of the obvious explanation for any detrimental treatment. We have already discussed that. It also seeks to uphold the ET’s specific findings of discrimination, as does Ground 7, and we will consider briefly each of those findings.

The ET concluded that Mr. Sayer and Mrs. Betts by participating in the panel had thereby treated Dr. Bahl less favourably than they would have treated a comparator, and had done so on grounds of her race and sex.

On the first limb, the ET considered whether Dr. Bahl had suffered a detriment. The EAT pointed out (in para. 130) that the ET in its decision uses that term somewhat inconsistently, in some cases meaning less favourable treatment, and in others as meaning disadvantage resulting from unreasonable treatment. In contrast there are many places where the ET concludes that there was no detriment because the treatment was reasonable and no different from that which would have been meted out to a white male. As the EAT rightly said, that confused detriment with discrimination.

On the particular point of participation in the panel, the EAT (in para. 203) found that it was open to the ET to find a detriment, though the EAT said that it could be little more than the sense of grievance that this matter was not handled wholly objectively. But the EAT also said that the purpose of the investigation was simply to determine that there was a case to answer and that it was plain beyond doubt that it was satisfied here. The EAT commented (in para. 204):

“There is something quite unrealistic, in our view, in concluding that either Mrs Betts or Mr Sayer, in not appreciating that they should remove themselves from a panel whose decision seemed both wholly uncontroversial and, indeed, inevitable, would have been influenced by unconscious race or sex considerations.”

We agree with the EAT’s conclusion but would go further for the following reasons:

Dr. Bahl’s complaint was that Mr. Sayer would not agree to Dr. Bahl seeing the papers he intended to put before Council even though Dr. Bahl was a member of Council, nor to Dr. Bahl being given the opportunity to contribute her views to Council. That the ET rejected (in para. 7.3.18), saying that he did not refuse either request, but that he would take advice on them. However the ET went on to say that the effect was to “stall or temporise” over these matters, and thereby that created a doubt that the requests would be granted, and this was a detriment. It did not accept that Mr. Sayer believed that he needed that advice. Again discrimination was found.

In our judgment, the ET erred on two counts:

The complaint of Dr. Bahl was as to “The persistent failure of the Respondents to discuss the complaints informally with Kamlesh Bahl or to invite explanations from her prior to formal disciplinary action being taken”. The ET made findings which demonstrated the falsity of that complaint. It is plain that there were several informal discussions with Dr. Bahl, including the meetings on 23 June 1999 between Mrs. Betts, Ms. Johnson and Dr. Bahl about Mr. Wallman’s proposed complaint, on 24 August 1999 between Mr. Napier and Dr. Bahl, and, most importantly, on 26 August 1999 between Mr. Sayer, Mr. Napier and Dr. Bahl when, without Mr. Wallman or Ms. Frazer being named, the risk of a formal complaint being made was spelt out.

What the ET did was to change the complaint to that of the absence of informal discussions between 30 August and 9 December 1999. We agree with the EAT that in the light of Chapman that was not open to the ET. We endorse the EAT’s view that where findings of discrimination are being made against an individual there should be no equivocation or uncertainty about the allegations made against him. Mr. Sayer did not address this specific issue in his witness statement. It is unfair that the ET made that finding against him.

We also agree with the EAT that the ET should have explained why the cooling off between Mr. Sayer and Dr. Bahl for the non-discriminatory reason the ET gave did not explain the absence of informal discussions and why that absence was to be attributed to racial or sexual considerations. Again it is apparent that the ET thought Mr. Sayer’s failure to have informal discussions to be unreasonable, but again that is not enough. We also agree that the ET’s conclusion is not sustainable because of the weight wrongly given by the ET to the use of Mr. Young as a comparator. There is no appeal by Dr. Bahl on that.

For the reasons given we would refuse permission to appeal on this ground.

The ET found that Mrs. Betts’ confirmation to Ms. de Sa that a complaint had been received was a breach of confidentiality and a detriment to Dr. Bahl because there was still the likelihood that Dr. Bahl would have to work with Ms. de Sa (para. 7.3.12). It also found that the explanation by Mrs. Betts that Ms. de Sa appeared to know what was going on was inadequate and weak, and concluded that had the complaint involved a white person or man confidentiality would have been maintained.

Again that conclusion prompts the question “Why?”. It is unanswered by the ET. Nor does it explain why the explanation given by Mrs. Betts was inadequate and weak, when common sense might dictate that explanation’s adequacy and strength. That is reinforced by the ET’s finding as to the news of the complaint becoming common knowledge within hours to the Law Society’s staff. It is very odd to find a breach of confidentiality in revealing a matter which was common knowledge in the Law Society days earlier and when Ms. de Sa already showed she knew of it before Mrs. Betts confirmed it. Although the EAT would not have interfered with the finding of detriment, we cannot see what actual detriment there was to Dr. Bahl in the circumstances. Still less can we see how race or sex discrimination can be inferred, particularly as the ET had found no such discrimination in another part of the same conversation with Ms. de Sa (see para. 7.3.13). Again, we see the ET disapproving Mrs. Betts’s conduct and drawing an inference from that unjustifiably.

The ET found detriment to and discrimination against Dr. Bahl in Mrs. Betts not alerting the IEC on 15 December 1999 to the fact that Mr. Hall’s complaint under the Dignity Policy was invalid because he was no longer employed by the Law Society at the time he made it. The EAT had difficulty with the premise to that complaint, viz. that the complaint of an ex-employee who has very recently left the Law Society could not properly be put before Council, and so do we. We also agree with the EAT that the Dignity Policy is not so clear on this point as to justify the ET’s inference that Mrs. Betts was untruthful when saying that she had given no thought to Mr. Hall’s status. Finally, we agree with the EAT that no detriment was found or can be shown. Mrs. Betts, as the ET found, would have referred the complaint to the IEC regardless of Dr. Bahl’s race or sex. The ET also found that, once before the IEC, it was inevitable that the complaint would be put before Council (para. 7.3.55). This is another example of the ET inferring discrimination from a failure to follow what it considered to be the correct procedure. That is unjustified.

The ET found that Mrs. Betts did instruct Mr. Lewis to inquire of the Union at the EOC whether there had been complaints of bullying made against Dr. Bahl while she was there, and that what motivated Mrs. Betts to discover this was her interest in prosecuting a case against Dr. Bahl rather than to discover whether Dr. Bahl had lied to Council by denying that complaints had been made.

The EAT, whilst considering that it was difficult to see any significant detriment, would have been inclined to send the point back to the ET to make fuller findings. But it held that unnecessary because of the difficulty of seeing how the ET could properly infer unconscious discrimination in relation to that deliberately hostile act when the conscious and non-discriminatory motivation was clear. We agree with the EAT’s holding. Again the ET’s disapproval of Mrs. Betts’s conduct appears to have led it to draw the inference of discrimination. In the absence of any reasoned finding of detriment by the ET, we can see no evidence of detriment, particularly as it is clear that complaints were indeed made of bullying against Dr. Bahl at the EOC, as she well knew.

The ET found that Mrs. Betts authorised the MSF meeting to which all staff, whether or not members of the MSF, were invited. It also found that she was influenced by unconscious discrimination in allowing the announcement to be made in the terms in which it was made to discuss the Dignity Policy. The EAT, on consideration of the evidence, found that there was no factual basis for considering that Mrs. Betts had given permission for the tannoy announcement nor that she knew of its contents. That was her evidence, not challenged in cross-examination, and the EAT’s conclusion seems to us plainly correct. We agree with the EAT that there was no possible basis on which she could be held responsible for the content of the announcement, let alone be guilty of unconscious discrimination with respect to it.

As we have rejected all the substantive grounds of appeal and found that the EAT was right to reject the ET’s findings of discrimination, there can be no question of a remittal to a fresh ET for a rehearing. In our judgment this was not a case merely of inadequate reasons but of inadequate reasons combined with errors of law and in particular the absence of findings of primary fact from which race or sex discrimination could properly be inferred, whilst at the same time the ET made findings which provided non-discriminatory reasons for any less favourable treatment. In our view the EAT was right not to remit the case to the ET and could properly follow the approach in Shamoon. In that case the House of Lords, whilst disagreeing with the ET’s finding of discrimination, ordered no remittal. It did so on the footing that there was no evidence on which the ET could properly have found discrimination. So here.

It is therefore unnecessary to go further into matters raised by the Respondent’s Notices than we have done, but for completeness we would add a brief comment on the hypothetical comparator in a case where no actual comparator can be found. We respectfully agree with the EAT that it is not an error of law for an ET to fail to identify a hypothetical comparator, but we would stress the dangers and difficulties for an ET if it has not identified the characteristics of the comparator. Not to do so may cause the ET not to focus correctly on the less favourable treatment issue and the reason why issue. That failure to identify the attributes to which we refer in para. 103 above appears to us to be one of the reasons why the ET went astray in this case.

For all these reasons, notwithstanding Mr. de Mello’s valiant and courteous attempts to get this appeal on its feet, we have reached the clear conclusion that this appeal must be dismissed. We acknowledge with gratitude the considerable assistance we have received in reaching that conclusion from the admirable written and oral arguments of Mr. Goulding and Ms. Simler.

Issues upon which the Employment Tribunal will decide whether the Applicant's complaints are well founded:

Whether the Respondents unlawfully discriminated against Kamlesh Bahl contrary to section (l)(l)(a) and 11 of the Race Relations Act and/or section l(l)(a) and 12 of the Sex Discrimination Act by:

the way in which the Respondents dealt with the complaints against Kamlesh Bahl in breach of the Law Society's dignity at work policy as set out at paragraph 7 of the Originating Application, namely:

making public the complaints against Kamlesh Bahl and the report of Lord Griffiths' findings;

failing to accord Kamlesh Bahl a right of appeal;

by breaching the requirements of natural justice and Kamlesh Bahl's right to a fair hearing by not giving Kamlesh Bahl sufficient time to respond to the complaints made against her.

Factual Allegations of discrimination in support of the issues as identified in letter from Langley & Co [for Dr. Bahl] dated 7th June 2000 (1/50).

During Robert Sayer's endeavour to remove Kamlesh Bahl from the Society's Hall, he refused to desist so as to read Kamlesh Bahl's letter of 13th December 1999 tendered to him.

At the meeting between Robert Sayer and Kamlesh Bahl on 13th December 1999, he informed here that he had taken into account the "complaints", when there was in fact only one complaint before him at the time;

Robert Sayer would not agree to let Kamlesh Bahl see the advice the Law Society had received about the way in which it should deal with such a problem, when that advice could plainly have gone to the options open to deal with the issues allegedly not covered by the employment policy;

Robert Sayer would not agree to Kamlesh Bahl seeing the papers that he intended to put before Council even though Kamlesh Bahl was a member of Council;

Robert Sayer would not agree to Kamlesh Bahl being given the opportunity to circulate her views on the Council;

Jane Betts asked Kamlesh Bahl not to contact any of her staff except through her;

Robert Sayer briefed her about the position as it stood on 14th December 1999 in terms that were not communicated to Kamlesh Bahl and which affected the way in which she was able to discharge her functions as an elected officer of the Society;

The Respondents failed to carry out a thorough investigation.

The failure by the Respondents to fully inform Kamlesh Bahl as to the nature [and] circumstances of the complaints as they arose.

The failure of the Law Society to deal with the formal complaint against Robert Sayer raised in the Letter. It is alleged that all of the Respondents were complicit in that failure.

The persistent failure of the Respondents to maintain confidentiality in this matter.

The persistent failure of the Respondents to discuss the complaints informally with Kamlesh Bahl or to invite explanations from her prior to formal disciplinary action being taken.

The circulation of details of a purported complaint to Council from an ex- employee, who had left the Law Society in October 1999.

The broadcasting in the Law Society, by tannoy, of a message encouraging staff members to attend a Union meeting to identify further complaints against Kamlesh Bahl.

Jane Betts circulating a letter to Council members which, effectively, accused Kamlesh Bahl of lying, particularly in reference to an incident at which Jane Betts was not even present.

The presentation by Robert Sayer of a motion to Council to suspend Kamlesh Bahl without prior warning or notification to her on the 15th December 1999.

The threat by the Special Committee to suspend Kamlesh Bahl from chairing the Executive Committee.

The deletion of all Kamlesh Bahl's e-mails from her system without her knowledge or consent on or about the 31st December 1999.

Jane Betts contacting the head of the trade union at the Equal Opportunities Commission in December 1999 to obtain confidential details of Kamlesh Bahl's employment during her period as Chairwoman of the Equal Opportunities Commission.

The deliberate adoption of an external and high profile procedure to deal with complaints which could and should have been dealt with internally.

The stark contrasts between the high profile and grossly unfair treatment meted out to Kamlesh Bahl and the treatment of previously office holders, a contrast that can only be explained by reference to Kamlesh Bahl's race and sex.

The obtaining of legal advice, orally and in writing, prior to 9th December and failing to disclose the said legal advice to Kamlesh Bahl and/ or IEC on or before 15th December 1999 to the detriment of Kamlesh Bahl.

The encouraging of complaints from other employees at the Law Society by all four Respondents whilst the initial complaints were ongoing meant that Kamlesh Bahl's working relationship with other Council members and employees deteriorated, in particular:

It is submitted that Jean Johnson encouraged complaints about Kamlesh Bahl after 9th December 1999 by creating or adding to a situation at the Law Society in which Kamlesh Bahl became seen as a fair target for complaints by making a complaint in the manner that she did in her letter and enclosures to Philippa Goss dated 10th January 2000.