Madden v Preferred Technical Group CHA Ltd & Anor

Between 22 February 1993 and 23 February 1998, Mr. George Madden (the Appellant) was employed as a Development Technician by the First Respondent to this appeal, Preferred Technical Group Cha Limited (the company) of which the Second Respondent, Mr. Michael Guest was the Developmental Manager. The company’s business is the manufacture of couple hose assemblies for power steering and turbo charger oil feed lines in the automotive industry.

The Appellant is Irish. On 24 December 1996, he presented a Form IT1 to the Employment Tribunal (the Tribunal) at Birmingham alleging race discrimination against the company under section 1 of the Race Relations Act 1976 (RRA 1976). This application was heard by the Tribunal on 21 July 1997, and the decision was promulgated on 27 November 1997. The Appellant’s claim of race discrimination was dismissed. The Appellant did not appeal against that decision, but his application to the Tribunal became a “protected act” for the purposes of a claim of discrimination by way of victimisation under RRA 1976 section 2(1)(a).

On 23 February 1998, the Appellant was summarily dismissed by the company. On 23 March 1998, he brought proceedings in the Tribunal against the company alleging racial victimisation, unfair dismissal and wrongful dismissal. Mr. Guest was named as Second Respondent to the allegations of victimisation. Those proceedings were heard by the Tribunal (in a different constitution to that which had heard the application referred to in paragraph 2 above) over seven days between 10 May and 3 August 1999. The Tribunal’s decision was promulgated on 13 August 1999. The Tribunal dismissed the complaint of racial victimisation against the company and against Mr. Guest. They found, however, that the Appellant had been unfairly dismissed by the company, and that the company had breached the Appellant’s contract of employment. The Appellant’s complaints of both unfair and wrongful dismissal against the company therefore succeeded. The two questions of the Appellant’s contribution to, and remedy for his dismissal were adjourned.

The Appellant appealed to the Employment Appeal Tribunal (the EAT) against the dismissal of his claims of direct discrimination and victimisation under RRA 1976. On 22 January 2001, the EAT, in a constitution chaired by HH Judge Peter Clark, allowed the Appellant’s appeal. The EAT accepted submissions made on the Appellant’s behalf. These were; (1) that the Tribunal’s reasoning had confused and had conflated the separate statutory requirements for direct discrimination and victimisation; and (2) that the Tribunal had failed to give adequate reasons for its conclusion that both claims under RRA 1976 failed. The EAT, accordingly, remitted the case to the same Tribunal for reconsideration of the questions under RRA 1976 together with the outstanding issues of contribution to, and remedies for unfair and wrongful dismissal.

The same Tribunal duly reconstituted and reconsidered the matter on 27 and 28 February 2003 with a third day (1 April 2003) spent in chambers. Their reserved decision was promulgated on 1 July 2003. They dismissed the Appellant’s complaints of direct discrimination under RRA 1976 section 1 and of victimisation under RRA 1976 section 2. They once again adjourned to a later date questions of remedy and contribution in relation to the breach of contract and unfair dismissal claims.

The Appellant appealed in person to the EAT, and in a reserved judgment handed down on 2 December 2003, the EAT, this time in a constitution chaired by HH Judge McMullen QC (and with different members from those who heard the Appellant’s previous appeal on 22 January 2001) dismissed his appeal.

The Appellant sought permission to appeal from this court and at an oral hearing on 29 April 2004, Keene LJ granted the Appellant permission, limited to identified paragraphs of the skeleton argument prepared for the permission application by the Appellant’s counsel, Mr. David Jones, who has also appeared for the Appellant before us. The company was represented before the EAT by Mr. Sean Jones of counsel, who also appeared before us.

Despite the fact that this appeal relates to the Tribunal’s decision of 1 July 2003, it is necessary to examine their reasons given both on 13 August 1999 (the first decision) and on 1 July 2003 (the second decision). In the first decision, the Tribunal set out their findings of fact in paragraph 4 of their reasons under sub-paragraphs lettered (a) to (y). Sub-paragraphs (a) to (c) are background. Sub-paragraph (d) explains that the Appellant was absent from work through sickness when he filed his first IT1 on 24 December 1996. When he returned to work on 3 January 1997 he was asked to attend a meeting with his Senior Departmental Manager, Mr. Leigh Smith and Mr. Guest, his direct supervisor. The Appellant was asked if he intended to resign. He declined to discuss the matter. The meeting was minuted, but the Appellant said he did not receive a copy of the minutes, even though he asked for one.

During the course of the hearing of the appeal, we asked to see the minutes of the meeting held on 3 January 1997. These make it clear that it had been called to discuss the reasons for the fact that the Appellant had been absent from work for four weeks, and to ascertain his current capacity for performing his job duties. The Appellant stated that he was well enough to resume his work duties but was unwilling to discuss the cause of the stress which was the reason stated by the Appellant’s doctor for his sick leave. He said that the cause of his stress would be pursued through other channels and when asked to elaborate said he would be taking the company to a tribunal. He declined to say what for. When asked the time scale of his complaint, the Appellant said he thought there was a legal requirement of 14 days. Mr. Guest asked if the Appellant still intended to resign as he had stated before the Christmas holidays. The Appellant replied that Mr. Guest should not listen to rumours. Mr. Guest said that the Appellant had said directly to him that he intended to resign and that it was therefore hardly a rumour. The Appellant said he did not wish to discuss it further. Mr. Smith pressed the Appellant on the point; he replied that if he intended to resign he would and that he did not wish to discuss it further. Mr. Smith asked the Appellant if he was prepared to resume his duties and act in a professional manner: the Appellant replied that he was not the sort of person to criticise the company to the customer. Mr. Smith thanked the Appellant for attending the meeting: the Appellant requested a copy of the notes taken by Mr. Smith, and Mr. Smith responded that of course he could have a copy.

I set out the minute of this meeting in some detail, since it predates the service on the company of the Appellant’s proceedings issued on 24 December 1996, and plainly demonstrates a tension between the Appellant and Messrs Smith and Guest, albeit one which does not appear to have anything to do with the fact that the Appellant is Irish.

In January 1997 (sub-paragraph (e) of the findings) the Tribunal record a Jaguar routing exercise. The Tribunal found that the Appellant complained about the time-schedule and was supported by the company’s applications engineer, Helen Wain. The schedule remained unchanged, but the Appellant was given the assistance of a colleague, and the project was completed on time.

Sub-paragraph (f) deals with the Appellant’s appraisal on 22 January 1997. The Appellant did not complete the self-appraisal form and was critical of the appraisal. The appraisal itself was critical of some aspects of the Appellant’s performance and attitude. The appraisal document is dated 4 February 1997 and under the headings “Potential” and “Forward Planning” identified the need for future training. However, (sub-paragraph (g)) the Appellant did not attend any further training courses during the remainder of his employment with the company and was not included in training carried out in June 1997.

Prior to 27 November 1997, the second day of the Tribunal hearing identified in paragraph 2 of this judgment, the Appellant submitted requests for holiday leave on the company’s standard application forms (sub-paragraph (h)). On 17 November he requested eight days leave commencing 26 November 1997 and ending 8 December 1997. On 25 November 1997, Mr. Guest approved two days namely 26 and 27 November.

The Appellant attended what the Tribunal describe as essentially a “clear the air” meeting with the company’s managing director Mr. Brendan Johnston and Mr. Leigh Smith on 1 December 1997 (sub-paragraph (i)).

The Tribunal (sub-paragraph (j)) next record the Appellant’s complaint that he was told by a colleague that he was being gradually moved into a different and less important role. The Tribunal record his complaint that when he approached Mr. Guest, the latter told him this represented a retrograde step. Mr. Guest denied saying this, and was supported by Mr. Leigh Smith. The Tribunal preferred the evidence of Mr. Guest and Mr. Smith on this point, and found that the area concerned was in any event only a small part of the Appellant’s duties.

The Tribunal next record the Appellant’s complaint that three identified employees had been questioned by Mr. Guest about his expenses forms. No query about them had been raised with him, and he complained to Mr. Guest about the way the latter had conducted his enquiries (sub-paragraph (k)).

On 30 January 1998 the Appellant was working in the design room when Mr. Guest telephoned to ask why he was there. As a result of what was said over the telephone, the Appellant went to see Mr. Leigh Smith. He told Mr. Smith he wanted to raise a number of issues related to Mr. Guest. Mr. Smith was busy and suggested the Appellant should discuss the matter with his supervisor, Mr. Baker and, if he was still unhappy, he should come back to talk to Mr. Smith at a more convenient time (sub-paragraphs (l) and (m)).

On 3 February 1998, the Appellant was asked to attend a meeting with Mr. Guest and Mr. Baker. Although the minutes recorded the purpose of the (informal) meeting as being to clarify the Appellant’s role within the company, there was no such discussion. The Appellant was told that at the date of his appraisal there was criticism of the state of his van, and that there were some eight driving complaints against him. The Appellant was only aware of two. The Appellant asked for a witness since the meeting was being minuted and he did not trust Mr. Guest. The request went unanswered. The Appellant complained about the way in which his expenses were being investigated and the meeting ended when the Appellant tore up his appraisal form and left (sub-paragraph (n)).

The consequence was a request from Mr. Guest to the Appellant to attend a disciplinary hearing. Present were Mr. Guest and the company’s Human Resources Officer Stella Standheim. The Appellant produced two letters, one addressed to Mr. Johnston and one to Mr. Herb Wilden, the Human Resources Director in the company’s corporate office in the USA. Those letters were sent by Ms Standheim. The letters contained identical copies of a memorandum by the Appellant headed “Unreasonable Treatment” (sub-paragraph (o) and (p)). On 10 February the Appellant received a recorded verbal warning for his action in tearing up his appraisal form at the meeting on 3 February (sub-paragraph (q)).

Mr. Johnston handed the Appellant’s memorandum to Mr. Smith on 9 February and asked him to interview the Appellant. Mr. Smith decided to interview Mr. Guest and the Appellant (in that order) on 16 February, and prepared a list of questions in advance for each meeting. Mr. Guest denied the allegations against him. The Appellant repeated them. The Appellant was suspended on full pay. Mr Guest would normally have also been suspended, but was not because Mr. Smith took the view he was critically involved in a large contract with the company’s major customer. Both the Appellant and Mr Guest were specifically instructed not to talk to anyone about the matter other than to Mr. Smith or Ms Standheim (sub-paragraph (r)).

Mr. Smith then conducted other interviews, described by the Tribunal as “brief”. He concluded there was virtually no support for the Appellant’s allegations apart from the one incident involving his request for leave. This point was put to Mr. Guest who apparently answered it to Mr. Smith’s satisfaction. Mr. Smith at about the same time found out that the Appellant had contacted a witness, contrary to instructions (sub-paragraph (s)).

There was a further meeting between the Appellant and Mr. Smith on 20 February 1998. The Appellant was told that those interviewed had not sustained his claims. He declined Mr. Smith’s offer to interview others and accepted he had approached witnesses. The Appellant was told that he had to attend a disciplinary hearing on 23 February at 4.00pm. He was told of his right to be accompanied at the meeting, and given copies of the minutes of the meeting held on 9 February. The letter informing him of the disciplinary hearing advised him that all the documents appertaining to the hearing would be available at 3.30pm on the day of the hearing. The Appellant asked for an adjournment of one day to consider the documentation. The request was refused (sub-paragraph (t) and (u)).

The disciplinary hearing took place on 23 February. The Appellant had 30 minutes to study what appear to have been some 50 pages of hand-written material. He told Mr. Smith that the person he wished to have with him was unavailable because of the short notice. The only other person present was Ms Standheim as note-taker. Mr. Smith concluded that the Appellant had been guilty of gross misconduct and that he was being summarily dismissed (sub-paragraph (v)). He appealed, but his appeal was dismissed (sub-paragraph (w) (x) and (y)).

On these facts, it is unsurprising that the Tribunal found the Appellant had been unfairly dismissed, and there is, of course, no appeal against that finding, although there is outstanding the question of contributory fault. The reasons which the Tribunal gave on this part of the case are full and careful. They found, in addition, that the dismissal without notice was wrongful and a breach of the Appellant’s contract.

Having dealt carefully with the Appellant’s claims for unfair and wrongful dismissal, the Tribunal dealt summarily with his claims under RRA 1976. They said simply:

The Appellant appealed on the grounds identified in paragraph 4 of this judgment. For the company, Mr. Sean Jones accepted in the EAT that so far as the claim of victimisation was concerned, the Tribunal had, at the least, failed to address the question as to whether the less favourable treatment found was attributable to the Appellant’s protected act or acts (no finding having been made as to precisely what was or were the relevant protected acts). However, Mr. Sean Jones failed in his attempt to persuade the EAT that the paragraph 11 of the Tribunal’s reasons (set out at paragraph 25 above) contained sufficient findings to support the conclusion that direct race discrimination was not made out. The EAT took the view; (1) that the Tribunal had patently failed to distinguish between the two separate causes of action, and (2) that there were no clear findings in relation to the following:

as to the less favourable treatment found by the Tribunal, based on their findings of primary fact;

as to which actual or hypothetical comparators they have used;

as to what explanation was put forward for the less favourable treatment by the (company) and whether such explanation was considered adequate or not by the Tribunal, and

whether the Tribunal considered whether or not they should draw the inference of unlawful discrimination and if so, why they declined to do so.

The EAT also found the Tribunal’s reasons in paragraph 11 insufficient to tell the parties why they had won or lost, and that there was no indication of the principles of law they had applied. The case was, accordingly, remitted to the same Tribunal to consider the questions of direct race discrimination and victimisation as a matter of liability and also to deal with remedies.

The second (reserved) decision of the ET was, as stated in paragraph 5 of this judgment, promulgated on 1 July 2003. The Tribunal record the parties’ agreement that no fresh evidence was to be called, and that the findings of fact in the first decision were to be adopted for the purpose of the further hearing with the proviso that Mr. Kibling (counsel then appearing for the Appellant) contended that it was incumbent on the Tribunal to make further findings of fact on the evidence already heard.

The Tribunal then list the matters it had considered in reconsidering the issues of alleged direct discrimination and victimisation. These were:

RRA 1976 sections 1 and 2;

the first decision and the findings of fact thereon;

the Chairman’s notes of evidence of the original hearing;

the guidance contained in 19 identified cases, beginning with the well known decision of this court in King v Great Britain China Centre [1991] IRLR 513;

the Commission for Racial Equality Code of Practice (the Code of Practice);

the written and oral submissions of the parties’ representatives;

the bundle of documents produced at the original tribunal hearing and the supplemental bundle produced for the hearing on 27 February 2003.

The Tribunal then record the following: -

The Tribunal then set out the relevant parts of RRA 1976 sections 1 and 2 and the well known extract from the judgment of Neill LJ in King v Great Britain China Centre [1991] IRLR 513 at 517/8, paragraph 38, which we do not need to set out. Having then set out RRA 1976 section 47(10) (as amended), the Tribunal describe how they had approached their task. They said:

Under the heading Alleged Direct Racial Discrimination , the Tribunal in paragraph 12 of its reasons then identified 14 areas in which direct discrimination was alleged. These were: (i) training; (ii) batch work; (iii) holiday requests; (iv) expenses investigation; (v) whereabouts in CAD design room; (vi) handling of the grievance; (vii) the meeting on 3 February 1998; (viii) the allegation of bad driving; (ix) line management; (x) suspension of the applicant; (xi) the investigation by Leigh Smith; (xii) the decision summarily to dismiss; (xiii) the handling of the appeal by Brendon Johnston; and (xiv) dismissal of the appeal.

The Tribunal found less favourable treatment in areas (i), (iii) (iv), (vi), (x), (xi) and (xii). In the remainder it found that there was no less favourable treatment. In each case, the Tribunal rejected the claim of direct discrimination.

For the Appellant, Mr. David Jones accepted that the only four of the fourteen areas identified by the Tribunal, which he could attack for the purposes of this appeal, were the last four - paragraph 12(xi) to (xiv). I need, accordingly, to set these out: -

The decision to summarily dismiss – There was less favourable treatment. No actual hypothetical comparator has been identified by the applicant. In determining there was less favourable treatment the tribunal has used as a hypothetical comparator an employee of the first respondents of similar status from a different nationality or ethnic origin who was summoned to a disciplinary hearing. The tribunal is critical of the handling of the disciplinary hearing… No evidence adduced by the first respondents to the effect that disciplinary hearings were routinely conducted in this manner. No adequate explanation was offered by the respondents. The tribunal has therefore asked itself whether it would be appropriate to draw the inference that the less favourable treatment was on the grounds of the applicant’s race. The tribunal concluded that it would not as there are no facts, which would form the basis for it to do so.

The handling of the appeal by Brendon Johnston – There was no less favourable treatment. No actual or hypothetical comparator has been identified by the applicant. In determining there was no less favourable treatment the tribunal has used as a hypothetical comparator an employee of the first respondents of similar status from a different nationality or ethnic origin who was appealing against dismissal in similar circumstances. The tribunal is critical of the first respondent’s handling of the appeal… The evidence before the tribunal was that Mr Johnston was ignorant of the sanctions available to him. He also took into account matters that he ought not to have taken into account. The tribunal finds the explanation inadequate. It has gone on to ask itself whether it would be appropriate to draw an inference that the less favourable treatment was on the grounds of the applicant’s race. It answers the question in the negative. The tribunal believes that the appeal was handled as it was because Mr Johnston would have handled any appeal in a similar manner. The tribunal does not believe that the handling of the appeal was in any way related to the fact that the applicant is Irish. In arriving at its conclusion the tribunal also takes into account that Mr Johnston is of Irish nationality.

Dismissal of the appeal – There was no less favourable treatment. No actual or hypothetical comparator has been identified by the applicant. In determining there was no less favourable treatment, the tribunal has used as a hypothetical comparator an employee of the first respondents of similar status from a different nationality or ethnic origin who was appealing against dismissal in similar circumstances. Because of the manner in which the appeal was handled, the confirmation of the decision to dismiss was almost inevitable. No adequate explanation has been offered by the first respondents. The tribunal has therefore gone on to ask itself whether it would be appropriate to draw an inference that the less favourable treatment was on the grounds of the applicant’s race. It answers the question in the negative. There was no evidence before the tribunal to suggest that Mr Johnston would have arrived at any different decision in relation to the hypothetical comparator. The tribunal does not believe that the dismissal of the applicant’s appeal was in any way related to the fact that he is Irish. The tribunal is again mindful of the fact that Mr Johnston is also of Irish nationality.

Having examined and rejected the 14 areas, the Tribunal rejected the Appellant’s argument that it could draw adverse inferences of race discrimination from the breaches of the Code of Practice identified by the Appellant. The same applied to the company’s answers to the Appellant’s RRA Questionnaire (see RRA section 65(2)(b)).

Turning to victimisation, the Tribunal stated that they had adopted the approach and asked the questions outlined in paragraph 6 of the EAT’s judgment (which summarised the law relating to victimisation). They identified the protected act as the proceedings instituted by the Appellant in the Tribunal on 24 December 1996. This was the only protected act. It then referred back to the findings of less favourable treatment identified in paragraphs 32 and 33 of this judgment and stated that the less favourable treatment found was not significantly caused by the company’s knowledge of the protected act. They then made the following finding of fact: -

Although this finding appears in the part of the Tribunal’s reasons dealing with victimisation, it cross-references to the findings relating to less favourable treatment in the part of the reasons relating to direct discrimination, and manifestly applies also to those findings.

The Tribunal concluded its reasons with the following paragraphs:

Although we are, of course, concerned with errors of law which may have been made by the Tribunal it is always helpful to see how the EAT addressed the issues raised by the appeal. It must also be remembered, however, that the Appellant was in person before the EAT, and that the basis upon which the appeal has been argued in this court was much more limited than that on which it was argued below.

For present purposes, it is, I think, sufficient to cite those paragraphs of the EAT’s judgment which reflect the arguments addressed to this court. Thus, on the question of direct discrimination and victimisation, the EAT, having cited paragraph 16 of the Tribunal’s reasons (set out at paragraph 38 above) continued: -

In his judgment on the oral application for permission, Keene LJ granted the Appellant permission to appeal on the following points

As to the first issue, the Tribunal’s direction to themselves that “in matters of discrimination the motive and intention of the Respondent is not relevant”, Mr. David Jones submitted that whilst motive is not an ingredient of the statutory tort of victimisation or race discrimination, it was a highly material factor in assessing whether or not inferences ought to be drawn from primary findings of fact. He relied on Lord Steyn’s dictum in Nagarajan v London Regional Transport [2000] 1AC 501 at 519 that: “As evidence, motive is always relevant”. The Tribunal, he submitted, plainly did not make this remark in respect of the ingredients of the statutory tort: rather, their observation was made in the context of the evidential analysis the Tribunal was about to embark upon in respect of whether they ought to draw inferences based upon findings of less favourable treatment. In so directing themselves, Mr. Jones argued, they placed themselves in an analytical straightjacket. The fact that they had excluded motive and intention from their considerations was apparent from their conclusions.

As to the fourteen incidents which Tribunal had considered as potential acts of direct race discrimination or victimisation, Mr. David Jones argued that in those instances where the Tribunal had found less favourable treatment, they had adopted a flawed analysis when assessing whether such less favourable treatment was on the grounds of race or by reason of the fact that the Appellant had committed a protected act

Mr. David Jones argued that at paragraph 12(xi) (“the investigation by Leigh Smith” set out at paragraph 34 above), and at paragraph 12(xii) (“the decision to summarily dismiss” (ibid)) the Tribunal had found less favourable treatment and no adequate explanation for such treatment by the company. It had, however, declined to draw an inference that such less favourable treatment was attributable to the Appellant’s race “as there are no facts which would form the basis for it to do so”. That, Mr. David Jones argued, was not a proper or sufficient basis for refusing to draw an inference. As is apparent from King -v- Great British China Centre [1991] IRLR 513, he submitted, a finding of less favourable treatment coupled with the absence of an adequate explanation was sufficient in itself, and without more, to justify the drawing of an inference that the reason related to race. In these circumstances, he argued, the Tribunal were obliged to give a clear explanation of why they had not drawn such an inference: (see paragraph 49 of the unreported decision of this court in Deman -v- Association of University Teachers [2003] EWCA Civ 329). The Tribunal had failed to do so. Motive and intention, he argued, were important matters in this context which warranted assessment and comment from the Tribunal.

Further, Mr. David Jones argued that in paragraphs 12(xi) and 12(xii) of the Tribunal’s reasons, the Tribunal had found that there was less favourable treatment in relation to a “hypothetical comparator” namely “an employee of the (company) of similar status from a different nationality or ethnic origin” to the Appellant. The Tribunal nevertheless found that the less favourable treatment was not attributable to race. Such a conclusion, he submitted, was not open to the Tribunal. In selecting a hypothetical comparator the Tribunal was obliged by Section 3(4) of the Race Relations Act 1976 to compare the Appellant with someone not of his racial group “such that the relevant circumstances in the one case are the same, or not materially different, in the other”. The obligation therefore was to compare like with like, save for the difference in race/nationality: see Shamoon -v- Chief Constable of the RUC (2003) IRLR 285 . In choosing a hypothetical comparator, Mr. David Jones argued, the only permissible distinction would be the nationality of that analogue. If that were the only material distinction the only explanation for the less favourable treatment would be nationality. Had such a comparator been treated no differently in the same circumstances, there could be no finding of less favourable treatment. But here there was a finding of less favourable treatment. The Tribunal’s reasoning was, he submitted, logically impermissible.

In respect of items 12(xiii) “the handling of the appeal by Brendan Johnston” and 12(xiv) “dismissal of the appeal” (also set out at paragraph 34 above and which need to be taken together) Mr David Jones argued that the Tribunal had found both less favourable treatment and an inadequate explanation. It nevertheless had not drawn the inference that the less favourable treatment was on the grounds of the Appellant’s race. The only reason given for not drawing such an inference was that Mr Johnston, who conducted the appeal, was of Irish nationality. This, he submitted, was not an adequate explanation because persons of the same national origins may discriminate against each other on the grounds of race.

In relation to the protected act, Mr. David Jones argued that the Tribunal had given no adequate explanation as to why it did not draw an inference that the incidents of less favourable treatment were by reason of the fact that the Appellant had committed a protected act, namely that he had previously brought discrimination proceedings against the Respondent in which Mr Guest had been its principal witness. At paragraph 15(d) of its extended reasons, the Tribunal simply asserted that the less favourable treatment “was not significantly caused by the Respondent’s knowledge of the protected act” and that “the less favourable treatment post-dating the protected act was in the main more a reflection of the continuing poor working relations between the Applicant and Mr Guest”. Only three of the findings of less favourable treatment related to Mr Guest. Mr. David Jones argued that no explanation had been given by the Tribunal at all, as to why it did not draw an inference that the other instances of less favourable treatment were attributable to the fact that the appellant had committed a previous protected act.

Daunting as the prospect was, Mr. David Jones invited us, if we were minded to allow the appeal, to remit the whole case (including the question of unfair dismissal) to a fresh Tribunal for rehearing.

For the company, Mr. Sean Jones had the perfect advocate’s answer to Mr. David Jones’ first point. The phraseology used by the Tribunal “conscious or deliberate motivation on the part of the respondents is immaterial for the purposes of both complaints” was an almost word for word quotation from the outline submissions put before the Tribunal by the Appellant’s counsel, Mr. Thomas Kibling, who had been instructed by the Commission for Racial Equality. What the Tribunal meant, Mr. Sean Jones submitted, was perfectly clear. They were simply saying that there was no requirement for the Appellant to establish a conscious or deliberate motivation on the company’s part.

Mr. Sean Jones accepted that in determining the question whether less favourable treatment was on racial grounds, evidence of a racial / racist motivation would be relevant. Had the Tribunal decided that such a motivation existed but had then determined to ignore it that would have been a plain error of law. However, he argued that in the instant case the Tribunal had found that the Appellant “would not have been treated differently if of a different nationality or ethnic origin” and that none of his treatment by either Respondent was due to his being Irish. This finding, Mr. Sean Jones submitted, made it clear that the Tribunal had specifically considered whether the Respondents had been consciously motivated by the Appellant’s race. It was in that context that the criticised statement had to be examined.

Turing to the Tribunal’s alleged failure to draw inferences of race discrimination from its findings of less favourable treatment, Mr. Sean Jones pointed out firstly, that the Tribunal were not bound to draw such inferences. He referred to the speech of Lord Browne-Wilkinson in Zafar v Glasgow City Council [1998] ICR 120 at 125B to126C, incorporating the guidance given by Neill LJ in King v Great Britain-China Centre . In those instances where the Tribunal had found less favourable treatment, and a difference of race, it was plainly open to them to draw an inference that the disparity of treatment was on racial grounds. However, they were not bound to do so. Their obligation was to reach a conclusion on the balance of probabilities as to whether the disparity in treatment and the difference in race were causally connected. As the Tribunal had put it in their first decision: -

Mr Sean Jones submitted simply that the Tribunal were not persuaded that the less favourable treatment they identified in paragraphs 12(xi) and (xii) justified the drawing of an inference of unlawful discrimination. That being so, the Tribunal were obliged to ask themselves whether there was any other evidence that would justify the drawing of an inference. There was no such other evidence, and the Tribunal were simply saying so.

On the question of hypothetical comparators, Mr. Sean Jones invited us to reject the Appellant’s contentions (1) that RRA 1976 s. 3(4) requires any hypothetical comparator to be identical to the Appellant save for his nationality; and (2) that as a consequence a finding that the Appellant had been less favourably treated than such a hypothetical comparator must mean that the less favourable treatment was on the ground of race.

However, Mr. Sean Jones added, even if the Appellant’s interpretation of the Act was correct, the question that the Tribunal should have asked themselves when determining the “less favourable treatment” issue was: “would someone in all other respects identical to the Appellant have been treated differently if he were not Irish?” That question, he submitted, was logically indistinguishable from asking whether the Appellant himself would have been treated differently had he not been Irish. The latter, however, had been a question that the Tribunal expressly asked itself at Paragraph 16 of its decision. The Tribunal had concluded that:

Mr. Sean Jones then addressed the specific paragraphs of the reasons under attack. He began with the Tribunal’s alleged failure to draw an inference in relation to Brendan Johnston’s handling and dismissal of the Appellant’s appeal against dismissal. Mr. Sean Jones submitted that this ground of appeal was founded on a misreading of the Tribunal’s decision. In paragraphs 12 (xiii) and 12 (xiv) of its decision the Tribunal found that the Appellant had not been less favourably treated. However, even if the Tribunal had found that the Appellant had been less favourably treated, there would still be no error of law. The Tribunal had not found that the fact that the Appellant and Mr Johnston were both Irish made it impossible in principle for there to have been discrimination. The Tribunal had merely taken Mr Johnston’s nationality into account as a relevant factor. Given the relevance of the factor, the Tribunal would have erred in law had it not taken it into account.

As to the suggestion that the Tribunal had given no adequate explanation for not drawing an inference that the incidents of less favourable treatment were by reason of the Appellant having performed a protected act, the Tribunal had held that the less favourable treatment of the Appellant was “a reflection of the continuing poor working relations” between the Appellant and Mr. Guest. Although the Appellant complained that that explanation could only explain three of the nine findings of less favourable treatment, the fact of the matter was that the Tribunal made only seven findings of less favourable treatment: viz paragraphs 12 (i), (iii), (iv), (vi), (x), (xi) and (xii). Of those, Paragraphs 12 (iii), (vi) and (x) were instances in which the Tribunal found that the Respondents had advanced an adequate non-discriminatory explanation. Of the remaining four instances, two (paragraphs (i) and (iv)) were acts of Mr. Guest and thus appeared to fall outside the present ground of appeal. The remaining two instances were: (1) “The investigation by Leigh Smith” (paragraph 12 (xi) of the decision); and (2) “The decision to dismiss summarily” (paragraph 12 (xii) of the decision).

The premise of the Appellant’s argument, Mr Sean Jones contended, was that the deterioration in his relationship with Mr. Guest could only provide a rationale for Mr Guest’s own actions. The premise was unsound. A deterioration in the relationship between two colleagues could have consequences for other colleagues too, not least the fact that there would be a temptation to take sides. The essence of the Appellant’s case was that Mr Guest had been favoured so that the Appellant’s grievance had been first deflected by Mr Smith, then inadequately investigated and finally that Mr Guest had been allowed to continue unsuspended whereas he had not.

The allegation at paragraph 12 (xi) of the Tribunal’s Decision was, Mr. Sean Jones contended, concerned with the alleged inadequacy of Mr Smith’s investigation into allegations made by the Appellant against Mr. Guest. Mr Smith’s evidence to the Tribunal had been that it appeared from statements obtained in the course of the investigation of the grievance that the Appellant “had decided to actively campaign against Mike Guest”. Once seen in context, the Tribunal’s finding that the reason for the less favourable treatment was a reflection of the deterioration in working relationship between the Appellant and Mr. Guest was neither remarkable nor erroneous. The Tribunal had found, in effect, that Mr Smith’s approach to his investigation reflected his belief that the Appellant’s complaints arose from a falling out between himself and the Mr. Guest.

The allegation dealt with at Paragraph 12 (xii) concerned the decision to dismiss summarily. At Paragraph 4 (v) of the Original Tribunal Decision, the Tribunal had found as fact that:

At Paragraph 1.10 of his proof of evidence, Mr Smith had stated that he considered the Appellant’s behaviour to be “vexatious and antagonistic” and that his conclusion was based on three “facts”:

Mr. Sean Jones submitted that, seen against the background of the Tribunal’s earlier findings, the suggestion that the decision summarily to dismiss was a “reflection of the continuing poor working relations between the [Appellant] and Mr. Guest” was not only open to the Tribunal but inevitable.

Further, Mr. Sean Jones submitted, once the findings made in the decision presently appealed are read together with the findings made in the earlier decision, the reason for the Tribunal making the contested findings and, thus, declining to draw the inference is entirely clear. The Appellant could not reasonably be in any doubt as to why he lost.

This analysis, Mr. Sean Jones concluded, demonstrated that the Tribunal’s reasoning was adequate. The reason for the less favourable treatment was the continuing poor relationship between the Appellant and Mr. Guest. The Tribunal had directed itself to the totality of the evidence, and, having done so, was entitled to find that none of the Appellant’s treatment was due to his being Irish.

Well as the case was argued on both sides, I have come to the clear conclusion that I prefer Mr. Sean Jones’ submissions, and I, for my part, would dismiss this appeal. In broad terms I am satisfied both (1) that the Tribunal were entitled to dismiss the Appellant’s claims under RRA 1976; and (2) that they gave adequate reasons for doing so. In my judgment, the Tribunal were right to see this as a case of unfair / wrongful dismissal.

Firstly, I am quite satisfied that the Tribunal did not misdirect itself when, on the two separate occasions I have highlighted, it made reference to conscious or deliberate motivation. In my judgment, Mr. Sean Jones’ submissions set out at paragraph 49 in particular and at paragraph 50 above provide a complete answer on this point.

I confess to a greater difficulty over the way the Tribunal dealt with those incidents of alleged direct racial discrimination, which are in dispute. In fairness to the Tribunal, however, I do not think that the four, which are attacked by Mr. David Jones, should be viewed in isolation. Although, in the interests of space, I have not set out in full the Tribunal’s reasoning in each, I propose to deal briefly with each, since it is, I think, of some relevance to understand why it was that Mr. David Jones, realistically in my view, accepted that he could not challenge the majority. The fourteen incidents are all identified in paragraph 32 above.

The first (paragraph 12 (i) of the second decision) related to training, where there was a finding of less favourable treatment. Here, there were three actual comparators, all of whom received training in circumstances in which the Appellant did not. The explanation given by the company was that the Appellant was not in need of training. That explanation was inadequate. However, the Tribunal found that the less favourable treatment was not racially motivated: it arose because the Appellant and Mr. Guest were constantly at loggerheads. The Tribunal were satisfied that there was no racial element in the difficulties between them and nothing from which to draw an inference of unfair treatment. This view was reinforced by the fact that one of the comparators was Irish and was treated consistently with the others.

In this instance, Mr. David Jones in my judgment rightly acknowledged that the Tribunal had made clear findings and given an explanation for the refusal to draw an inference of race discrimination. The paragraph contained no error of law and was, accordingly, not capable of being impugned on appeal.

The next example (paragraph 12(ii)) was batch work, where the Tribunal had found that there had not been any less favourable treatment. The Tribunal referred back to paragraph 4(j) of the first decision (see paragraph 15 above). In determining the question of no less favourable treatment the Tribunal had taken as a hypothetical comparator “an employee of (the company) of similar status from a different nationality or ethnic origin who was asked to undertake similar work”. The Tribunal said that had they found less favourable treatment they would not have drawn an inference that such treatment was on the grounds of race as there were no facts, which would have formed the basis for them to do so. Mr. David Jones accepted that the Tribunal were entitled to reach this conclusion, and that it is adequately explained.

Paragraph 12(iii) related to holiday requests. Here there was less favourable treatment and an actual comparator. The Tribunal accepted the explanation that the requests were made at different times, and that when the Appellant made his request he was involved in a major project. Even had it found differently, the Tribunal added, there were no facts on which it could have properly drawn the inference that the refusal of the appellant’s holiday request was on the grounds of his race? Once again, Mr. David Jones accepted this was a legitimate conclusion and that it is adequate reasoned.

Paragraph 12(iv) was the expenses investigation. Here there was less favourable treatment and three actual comparators. The explanation given by the company was unsatisfactory. However, the Tribunal did not draw an inference of unlawful race discrimination because they concluded that the less favourable treatment arose from the poor relationship between the Appellant and Mr. Guest, and that the less favourable treatment contained no racial element. Once again, one of the comparators was Irish and he was treated consistently with the others. Mr. David Jones accepts these findings cannot be challenged.

Paragraph 12(v) related to whereabouts in the CAD design room. The Tribunal found that there was not been any less favourable treatment, and adopted the same reasoning it had used in paragraph 12(ii) to reach the same conclusions for the same reasons.

Paragraph 12(vi) was the handling of the Appellant’s grievance. The Tribunal found less favourable treatment, but did not identify an actual comparator. The hypothetical comparator was “an employee of similar status from a different nationality or ethnic origin raising a similar grievance”. The company’s explanation was that Mr. Smith was extremely busy at the time, and that is why the Appellant was told to see Mr. Baker. The Tribunal accepted that explanation as reasonable, but even if it had not, it would not have drawn an inference that the less favourable treatment was on the grounds of race as there were no facts, which would form the basis for it to do so. Mr. David Jones does not challenge this analysis.

Paragraph 12(vii) was the meeting on 3 February 1998 at the conclusion of which the Appellant tore up his appraisal form. The Tribunal found that there was not any less favourable treatment and that the company would have treated in the same way a hypothetical employee of similar status from a different nationality or ethnic origin who attended a similar meeting against the same factual background. Had it concluded that there was less favourable treatment, it would not have drawn an inference, as there were no facts, which would form the basis for it to do so. This reasoning is not challenged.

Paragraph 12(viii) related to bad driving. There was not any less favourable treatment. There were actual comparators. No disciplinary action was taken against the Appellant. In any event, there were no facts upon which the Tribunal could have drawn an inference of less favourable treatment. This paragraph is not challenged.

Paragraph 12(ix) related to line management. The Tribunal found that there was not any less favourable treatment. Using as a hypothetical comparator an employee of similar status from a different nationality or ethnic origin who had Mr. Guest take over as his/her line manager there was no evidence to show that the Appellant had been less favourably treated than the hypothetical comparator would have been. This paragraph is not challenged.

Paragraph 12(x) related to the Appellant’s suspension. Here there was less favourable treatment, and the comparator was Mr. Guest, who was not suspended. The explanation (that Mr. Guest involved in a large contract with the company’s major customer) was unfair to the Appellant but an innocent and reasonable explanation for the difference in treatment: it was a decision taken for pressing commercial considerations. Mr. David Jones accepts that this is a conclusion the Tribunal were entitled to reach and that it’s reasoning is adequate.

We now come to the items which Mr. David Jones challenges and which I have set out fully at paragraph 34 above. I propose to deal firstly with items 12(xiii) and 12(xiiv) namely the manner in which Mr. Brendon Johnston handled the Appellant’s appeal.

In these two instances, and on a fair reading of their reasons, the Tribunal seem to me to have found (1) that there was not any less favourable treatment because Mr. Brendan Johnston would have handled any appeal in the same inappropriate fashion; and (2) that his conduct was unrelated to the Appellant’s race. In other words, Mr. Johnston would have treated anybody in the same unfair way, irrespective of race. In reaching its conclusion, the Tribunal took into account that Mr. Johnston was himself Irish, but that was in no sense a determinative factor.

I therefore agree with Mr. Sean Jones that the Appellant’s interpretation of paragraphs 12(xiii) and (xiv) of the Tribunal’s reasons in the second decision (see paragraph 46 above) is based on a misreading of them. In my judgment, the Tribunal give an entirely straightforward and rational explanation for their conclusion, albeit one distinctly unflattering to Mr. Johnston. It was, moreover, a conclusion they were entitled to reach on the material before them. I would accordingly, reject Mr. David Jones’ criticism of the Tribunal’s findings in relation to items 12(xiii) and (xiv).

This leaves paragraphs 12(xi) and (xii), in each case, the Tribunal found less favourable treatment. The Appellant did not identify any actual or hypothetical comparator in either. In both, the Tribunal took as a hypothetical comparator “an employee of (the company) of similar status from a different nationality or ethnic origin” in the first instance “subjected to an investigation by Mr. Smith against a similar factual background”, and in the second “summoned to a disciplinary hearing”. In both cases the Tribunal were critical of the company’s conduct and in neither was there a satisfactory explanation by the company as to its behaviour. Nonetheless, the Tribunal declined to draw an inference that the less favourable treatment was on the grounds of the Appellant’s race because there were no facts, which would form the basis for it to do so.

In essence, the Appellant’s submission is that this is simply not good enough. There is, it is said, no proper explanation for the Tribunal’s refusal to draw the racial inference. Less favourable treatment and the absence of an explanation are sufficient, without more, it is argued, to justify such an inference being drawn. If the Tribunal decide not to draw an inference, they are obliged to give clear reasons why they have not done so.

The question as to whether or not the Tribunal have committed an error of law in the manner in which it dealt with paragraph 12(xi) and (xii) of their reasons seems to me to contain three elements. The first goes to the nature of the hypothetical comparator they have used. The second relates to the circumstances in which a Tribunal may or may not draw and inference. The third is the argument based on reasons. I will attempt, briefly, to address each in turn.

Expanding somewhat on the bounds of the permission granted by Keene LJ, Mr. David Jones argued that, in the choice of a hypothetical comparator, the only permissible distinction between a real applicant and a hypothetical comparator was the race or nationality of the analogue: - see paragraph 45 above. Was the Tribunal in error, therefore, in selecting the hypothetical comparators in this case identified in paragraphs 12(xi) and (xii)? I do not think so.

The statutory obligation in relation to real and hypothetical comparators is imposed by RRA sections 1(1(a) and 3(4) and is in the following terms: -

For the need to compare like with like, we were referred to the speeches in the recent decision of the House of Lords in Shamoon v Chief Constable of the Royal Ulster Constabulary (Shamoon) [2003] IRLR 285. In my judgment, the hypothetical comparator identified by the Tribunal falls within the terms of the Statute, and does not offend against the reasoning in Shamoon, which was not, of course, available to the Tribunal when they reached their conclusion.

I do not accept the argument that the hypothetical comparator in a case under RRA 1976 must be, in effect, a clone of the applicant in every respect (including personality and personal characteristics) except that he or she is or a different race. Nothing that I read in the speeches in Shamoon leads me to that conclusion, nor does the Statute.

As I understood Mr. David Jones’ argument, it was to the effect that if the only permissible distinction between an applicant and a hypothetical comparator was nationality, then it followed that if a Tribunal has found that the applicant before it had been treated less favourably than a hypothetical comparator would have been, the Tribunal should go on, as a matter of logic, to find that the less favourable treatment must have been on the grounds of race. In other words, since in paragraph 12(xi) and (xii) the Tribunal had found less favourable treatment, it was not permissible for them – using a properly constructed hypothetical comparator - to reach any other conclusion than that the less favourable treatment was on racial grounds.

If this was the argument, I am unable to accept it. If it were right, every case of alleged race discrimination in which there was a hypothetical comparator and less favourable treatment would result in a finding in the applicant’s favour. Whilst in no sense underestimating either the importance of making such findings where appropriate or the difficulty sometimes in doing so, the reality is, as the Tribunal pointed out in paragraph 11 of its reasons in the first decision, that many employees are treated less favourably than others day in and day out without it necessarily following that the less favourable treatment is on the grounds of race or nationality.

In the instant case, as Mr. Sean Jones points out, the overall reason for the Appellant’s less favourable treatment given by the Tribunal was the continuing poor working relationship between the Appellant and Mr. Guest. The Tribunal were satisfied that this had nothing to do with the fact that the Appellant was Irish. In my judgment, Mr. Sean Jones put the point appropriately in context when he asked the rhetorical question “would the Appellant have been treated differently had he not been Irish?” - this being a question, which the Tribunal had specifically answered in the negative.

In my judgment, therefore, the hypothetical comparator argument does not assist the Appellant. Having found less favourable treatment, and an unsatisfactory reason for it, the Tribunal were not, as a matter of law, obliged to find that the less favourable treatment was on racial grounds.

Here, the first point, I think, has to be that the Tribunal’s reasons must be read as a whole. In this case, the two sets of reasons – both the first and the second decisions – must be read together. It follows, in my judgment, that whilst each incident is appropriately separated out by the Tribunal, it is artificial to read each in isolation, as though it can be separately encapsulated, and hived off from its fellows. Thus although the basis for refusing to draw an inference may seem weaker or stronger in one particular set of circumstances, those circumstances cannot be seen in isolation. They are part of the whole.

I am in no doubt at all that the Tribunal in the circumstances of this case were entitled to take an overall view, provided that they did not allow that overall view impermissibly to permeate into areas where specific findings and inferences were required. In my judgment, the Tribunal in its second set of reasons have not fallen into that trap. Although in the final paragraph of their first decision they had robustly (as they thought) kicked the race discrimination arguments into the long grass, they dutifully and conscientiously revisited all their findings when told to do so by the EAT. Out of fourteen questions, only two in my judgment (paragraphs 12(xi) and (xii) of the second decision) raise a properly arguable question. This court is, accordingly, approaching the point where it is being asked impermissibly to pore over the decision, picking out the odd paragraph at which criticism can be levelled.

It is trite law that Tribunals are not required to draw inferences. They may do so. If they either think that that there is no evidence from which inferences can properly drawn, or if they think the evidence does not warrant the drawing of inferences, they should say so.

In my judgment, this is what the Tribunal have done in the instant case. They have not found any evidence which would warrant the inference that the Appellant was less favourably treated because he was Irish. Subject to the Tribunal giving adequate reasons for reaching that conclusion, and subject to those reasons being themselves based on material, which was properly open to them, their conclusions cannot, in my judgment, be impugned.

This, in my judgment, is the most difficult part of the case. Looking at paragraph 12(xi) and (xii) they seem to me to raise a “reasons” rather than a “failure to draw an inference” point. The question, therefore, is whether or not the Tribunal have adequately explained their reasons for failing to draw inferences of race discrimination and concluding that the Appellant was neither racially discriminated against or victimised.

In arguing the reasons point, Mr. David Jones placed heavy reliance on the unreported decision of this court (of which I was a member) in Deman v Association of University Teachers [2003] EWCA Civ 239. This court was very critical of a Tribunal which had dismissed claims of race discrimination and victimisation made against the Association of University Teachers (AUT) The Tribunal had reached its conclusions with these words: -

On the facts of that case, this court took the view that the Tribunal’s conclusion was “manifestly incorrect”. There had been an abundance of evidence in the case from which adverse inferences could be drawn. The Tribunal had simply failed to address that evidence, and had equally failed to explain why they had not done so. This court in that case drew a clear distinction between there being no evidence from which inferences of race discrimination or victimisation can properly be drawn on the one hand; and on the other, a situation in which there was manifestly evidence from which such inferences could properly be drawn but where the Tribunal had either failed to draw them or had reached the conclusion that it was not appropriate to do so.

Speaking for myself, I agree with Mr. David Jones that, where the Tribunal have found less favourable treatment and no adequate explanation for it, there is an obligation on the Tribunal in a race or sex discrimination case to say that it is not drawing an inference “because” - and that the Tribunal should then go on to explain, shortly and succinctly why, on the particular facts, it is not drawing such an inference. At the same time, however, there will be cases where the “because” will be that the Tribunal have examined the facts, made findings about what has happened, identified its actual or hypothetical comparator and have come properly to the conclusion either that the facts simply do not warrant the drawing of an inference or that there is no evidential basis upon which an inference can be drawn.

In my judgment, when one reads the first and second decisions together and as a whole, one comes clearly to the view that, in the cases in which the Tribunal found that the Appellant was less favourably treated, the reason was a long standing personality clash between himself and Mr. Guest which had nothing to do with the fact that the Appellant was Irish. There was no other evidence from which the Tribunal could infer race discrimination. The Tribunal were thus entitled to conclude, as they did in paragraph 12(xi) and (xii) of the second decision that there were no facts which would form the basis for the inference that the less favourable treatment was racially based.

The same arguments, in my judgment, apply in relation to the victimisation claim. The Tribunal made a clear finding about the less favourable treatment post-dating the protected act, namely that it “was in the main more a reflection of the continuing poor working relationship between the Appellant and Mr. Guest”. This, in my judgment, was a conclusion they were manifestly entitled to reach, having seen the parties giving evidence, and one which is adequate to explain to the Appellant, even if he does not accept it, why the Tribunal found that he had not been racially victimised.

For all these reasons I would dismiss this appeal.

I agree.

I also agree.