Khan v Royal Mail Group Ltd & Ors

Mr Khan was employed by Royal Mail. He is a Muslim of Pakistani origin. He made complaints about discrimination on the basis of race and religion by his managers. He also complained about victimisation. His complaints were dismissed by the Employment Tribunal and, on appeal, by the Employment Appeal Tribunal. He appeals with the permission of Rimer LJ. The sole permitted ground of appeal is whether the ET correctly applied the burden of proof.

Mr Khan was represented on this appeal by Mr Tom Brown, appearing pro bono. The respondents were represented by Ms Safia Tharoo. Both counsel made excellent and concise oral submissions, for which the court is extremely grateful.

For the reasons that follow I would dismiss the appeal.

Section 54A (2) of the Race Relations Act 1976 provides:

“Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent—

(a)

has committed such an act of discrimination or harassment against the complainant, …

the tribunal shall uphold the complaint unless the respondent proves that he did not commit … that act.”

Regulation 29 of the Employment Equality (Religion or Belief) Regulations 2003 contains similar provisions in relation to allegations of discrimination on the grounds of religion or belief. Section 136 of the Equality Act 2010 (which was not in force at the relevant time) also contains similar provisions.

The operation of these and other similar provisions in other areas of unlawful discrimination has been considered by this court in the two leading cases of Igen Ltd v Wong [2005] EWCA 142; [2005] ICR 931 and Madarassy v Nomura International plc [2007] EWCA Civ 33; [2007] ICR 867. Igen Ltd v Wong makes it clear that the burden is on the complainant to prove, on the balance of probabilities, the primary facts on which he relies. At [29] the court went on to explain what it was that the complainant had to prove:

“The relevant act is, in a race discrimination case…, that (a) in circumstances relevant for the purposes of any provision of the RRA (for example in relation to employment in the circumstances specified in s. 4 of the RRA), (b) the alleged discriminator treats another person less favourably and (c) does so on racial grounds. All those facts are facts which the complainant, in our judgment, needs to prove on the balance of probabilities.”

This summary was expressly approved in Madarassy at [55]. In the latter case Mummery LJ went on to explain:

“The court in Igen v Wong expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the tribunal could conclude that the respondent "could have" committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal "could conclude" that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.”

At this stage (stage 1), therefore, the complainant must prove on the balance of probabilities that the acts complained of happened; and that there was a difference in treatment between himself and relevant comparators. At stage 1 the ET may also consider “available evidence of the reasons for the differential treatment”: see Madarassy at [57]. If the complainant has established a prima facie case of unlawful discrimination, the enquiry moves to a second stage (stage 2). It is at stage 2 that the burden shifts to the respondent to produce an adequate non-discriminatory explanation: see Madarassy at [58]. I agree, however, with Mummery LJ in Madarassy at [70] that although logical, this division into stage 1 and stage 2 has “an air of unreality” about it.

These cases were approved by the Supreme Court in Hewage v Grampian Health Board [2012] UKSC 37; [2012] ICR 1054 in which Lord Hope added at [32]:

“… it is important not to make too much of the role of the burden of proof provisions. They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other.”

In some cases an act is objectively and inherently discriminatory, such as providing free swimming facilities for women aged 60 or more, but not for men: James v Eastleigh Borough Council [1990] 2 AC 751. It was clear in that case that there was discrimination on the ground of sex. In such a case there is no need to inquire into the subjective motivation of the actor. It does not matter why he discriminated on the ground of sex; if in fact he did. Where, however, the question is why the actor did what he did or said what he said, the question is a different one, especially where the act or the words are open to interpretation. As the court said in Igen v Wong one of the essential ingredients of a successful claim for racial discrimination is that the less favourable treatment was done “on racial grounds”. The House of Lords explained how this was to be assessed in Chief Constable of the West Yorkshire Police v Khan [2001] UKHL 48; [2001] 1 WLR 1947. Lord Nicholls said at [29]:

“The phrases “on racial grounds” and “by reason that” denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact.”

Mr Khan’s essential complaint about the way in which the ET approached his case is that it failed to apply the reverse burden of proof at the second stage.

It is important to note, however, that the provisions relating to the reverse burden of proof do not apply to claims of victimisation on racial grounds: Oyarce v Cheshire County Council [2008] EWCA Civ 434; [2008] ICR 1179. However, it was common ground that, by contrast with allegations of discrimination on racial grounds, the reverse burden of proof did apply to claims of victimisation on religious grounds because of the difference in wording of regulation 28 of the Employment Equality (Religion or Belief) Regulations 2003.

An appeal to this court (like an appeal from the ET to the EAT) lies only on a point of law.

In relation to the discrimination claims the ET set out the issues it had to decide in para 2 and para 3 of its decision. Each followed the same pattern. As far as racial discrimination was concerned the ET directed itself that the following issues needed to be considered:

“2.1

Has the claimant proved on a balance of probabilities that the respondents or any of them committed the alleged acts or any of them set out in his list of allegations …

2.2

If so, could the tribunal conclude, in the absence of an adequate explanation by the respondent(s), that the acts or acts were unlawful acts of race discrimination and/or harassment?

2.3

If so, have the respondents or any of them proved that the acts were not committed at all on the grounds of the claimant’s national origin?”

Although Mr Brown was critical of this self-direction, in my judgment it was correct. So the question, as I see it, is whether the ET followed through its own self-direction in considering Mr Khan’s various allegations. Mr Khan presented his allegations by reference to a numbered schedule in reverse chronological order. The ET considered them in their chronological order giving each allegation a separate number. I will do the same.

The ET first considered an allegation of race discrimination against Ms Allen, Mr Khan’s line manager. Mr Khan had complained to her that a co-worker, Mr Donn, had been looking at what Mr Khan regarded as pornography on line. Ms Allen told Mr Khan that he was making a moral judgment; and that his and Mr Donn’s perceptions of what might be pornographic could be due to “cultural differences”. Mr Khan took this to be a reference to his name or race. The ET found that Ms Allen had indeed used the phrase “cultural differences”. The ET’s critical findings are in paragraphs 16 and 17:

“16 [Ms Allen] told the tribunal that the cultural differences she meant were the differences between [Mr Khan], “a smart and professional individual” and Mr Donn who was “somewhat of a man about town”. She said that she was not referring to [Mr Khan’s] religion or to the culture of Pakistan.

17 The tribunal found that [Ms Allen’s] comment, in the absence of her explanation, could be taken as a reference to [Mr Khan’s] religion or to the culture of Pakistan, and moreover as an unfortunate stereotype of a Muslim of Pakistani origin. We found it was not unreasonable for [Mr Khan] to perceive her comment in the way he did, although she did not mean it that way.” (Emphasis added)

The language of the first sentence of paragraph 17 mirrors the language of section 54A. In other words, in the absence of an explanation the tribunal could conclude that Ms Allen had unlawfully discriminated against Mr Khan. That was their conclusion (albeit compressed) at stage 1. However, in my judgment the concluding phrase of the second sentence is a finding of fact that Ms Allen “did not mean it that way”. As I read it, therefore, the ET accepted her explanation; and found that it was an adequate non-discriminatory one. In other words the reason why she said what she said was not influenced by Mr Khan’s national origin or religion. Although this was her subjective motivation, that is what counts. That was their conclusion (again compressed) at stage 2. The ET returned to this allegation in paragraph 129. They said:

“129 The tribunal took into account that, in respect of [Ms Allen’s] remarks concerning cultural differences and moral judgments, [Ms Allen] apologised to [Mr Khan] and they shook hands as we set out above. In any event, those remarks did not concern [Mr Khan’s] race or religion, but his attitude compared to Mr Donn’s regarding pornography. We concluded that [Mr Khan] had not established this allegation.” (Emphasis added)

The second sentence of this paragraph echoes the ET’s acceptance in paragraph 17 of their judgment of Ms Allen’s explanation of her remark. That is a finding of fact, made in accordance with the structure that the ET had set out in paragraphs 16 and 17 of their decision. In my judgment they correctly applied the reverse burden of proof and, having accepted Ms Allen’s explanation, were entitled to find that Mr Khan had not established his complaint. Mr Brown pointed to material before the ET that, he said, should have persuaded them to reverse the burden of proof. But in my judgment that is what they did. So I do not consider that Mr Brown’s submissions on this point (while they might have been persuasive to a fact finding tribunal) demonstrate an error of law on the part of the ET.

At this point it is, I think, appropriate to see exactly how allegation 24 was put. What Mr Khan alleged was that:

“You [i.e. Ms Allen] bullied and harassed me as accepted in the investigating report of March [2006] offending me on racial and religious grounds as highlighted in that report.” (Emphasis added)

The ET made findings about what the investigating report had concluded. Those findings are set out in paragraph 29. Crucially they found that the report did not uphold any complaint about the “cultural differences” remark because it found that it would be unreasonable to revisit that complaint after Ms Allen had apologised, and Mr Khan had accepted the apology. Thus although the ET considered the substance of the complaint (and unlike the internal investigation did revisit it), strictly speaking Mr Khan had failed to prove the primary facts alleged, which as formulated were tied to the contents of the investigating report. It would have been better if the ET had given a fuller explanation, but when matched against the allegation this part of the complaint in fact failed at stage 1.

The second part of this allegation arose out of a meeting between Mr Khan and Ms Allen. Ms Allen told the ET that she was concerned that Mr Khan might be finding it difficult that his line manager was a woman. In the course of a meeting in July 2005 she asked Mr Khan “You don’t have a problem with women do you?” In his evidence to the ET Mr Khan alleged that Ms Allen had not said “women” but “white women”. In paragraph 24 the ET record:

“When pressed in cross-examination to say how the “accusation” amounted to race discrimination, [Mr Khan] said that [Ms Allen] had referred to “white women”. However, [Mr Khan] had not previously said anything of the sort, and the tribunal did not accept his evidence.”

Thus it appears that his case of discrimination was based squarely on the allegation that Ms Allen had used the phrase “white women”. However, because the ET rejected that evidence that finding effectively meant that the factual foundation of the complaint had not been proved. In other words this part of the allegation also failed at stage 1. In paragraph 29.5 of their judgment the ET said:

“[Ms Allen] denied in evidence that her question regarding women carried any racial or religious connotation, and we accepted her evidence.”

Again Mr Brown pointed to parts of the material before the ET which, he said, should have led them to reverse the burden of proof. Thus when interviewed in the course of an internal investigation she referred to a lunch meeting she had had with Sally, who had been a secretary to one of her superiors. In fact the ET did refer to this meeting in paragraph 23 of their judgment. But the fact remains that, having heard (and rejected) Mr Khan’s evidence about why he thought that Ms Allen had discriminated against him, the ET never got to the stage when the burden of proof could or should have been reversed. Moreover, having also heard Ms Allen give evidence at some length, the ET accepted her explanation. If a tribunal accepts a witness’s evidence on a question of fact, then ordinarily any burden of proof will have been discharged. Mr Brown also criticised the ET’s statement that the question carried no racial or religious “connotation”. He said that the word “connotation” was obscure, and did not amount to a finding that Ms Allen’s question was not motivated at least in part by racial or religious considerations. However, the first obstacle in his way is that since the complaint was based on an allegation that Ms Allen had used the phrase “white women” and that had not been proved, the complaint had failed at stage 1. In addition, by proceeding to consider (and accept) Ms Allen’s explanation the ET in fact went on to stage 2, even though that was strictly unnecessary.

The ET returned to this allegation in paragraph 130 of their decision. They said:

“In respect of the comment regarding women, we concluded that it was insensitive. We took into account that [Mr Khan] referred to it as “offending” him on racial and religious grounds, and that we found that it was reasonable for him to have taken it that way. However, the burden was upon [Mr Khan] to prove that [Ms Allen] meant the question to refer to his national origin or religion, and we concluded in accordance with our findings in paragraph 29.5 above, that he had not established this allegation.”

On the face of it this paragraph does contain a misdirection. The second sentence appears to me to amount to a finding that in the absence of an explanation Mr Khan had proved facts from which the tribunal could conclude that there had been unlawful discrimination. The burden would then have shifted to the respondent to advance an adequate non-discriminatory explanation. The third sentence, however, suggests that the burden remained on Mr Khan. But by cross-referring to their findings in paragraph 29.5 it becomes clear that the ET did in fact accept Ms Allen’s non-discriminatory explanation. Thus although as a matter of language there does appear to have been a misdirection, it had no material effect in view of the ET’s primary findings of fact; namely that Ms Allen asked about “women” not “white women” (which undermined the foundation of the complaint) and their acceptance of her explanation that the question carried no connotation of race or religion. This, then is a case in which the ET were able to make positive findings of fact in which, as Lord Hope put it in Hewage, the burden of proof provisions “have nothing to offer.” Moreover, the rejection of Mr Khan’s evidence about “white women” meant that this part of the complaint also failed at stage 1.

As regards the remaining parts of allegation 24 the ET found that Mr Khan had not proved the primary facts from which he invited the tribunal to conclude that there had been unlawful discrimination. Again the complaint failed at stage 1. Those were findings of fact which are not susceptible to being disturbed on appeal.

This allegation arose out of the internal inquiry by Royal Mail into Mr Khan’s complaints about Ms Allen. The inquiry concluded that there had been bullying of Mr Khan, although it did not uphold his complaints of discrimination, or of harassment and victimisation. Mr Khan’s complaint was that in the light of those findings Ms Allen was not removed from her position; and he also complained that no action had been taken against Ms Allen. As the ET recorded in paragraph 33 Mr Khan said that he “expected the harasser to be moved not the victim”. The ET found in paragraph 35 that action had been taken against Ms Allen in line with Royal Mail’s conduct code. They found in paragraphs 28 and 41 that Royal Mail also arranged for Mr Khan to report to Mr Lappin, and subsequently to Mr Wakefield rather than to Ms Allen. Mr Khan had not in fact been moved from his position. Only his line of reporting had been changed. Later on in paragraph 49 of their judgment the ET recorded Mr Khan as having said that he did not want another role and was happy with the role he had. He had only been asking for a new line manager. But on the basis of the ET’s findings in paragraph 28 of their judgment, that is exactly what had happened. The primary facts had not, therefore, been proved.

Since this was a claim of victimisation the burden of proof remained on Mr Khan. The ET dealt with this allegation in paragraph 133. They said:

“In accordance with our findings above, we concluded that [Royal Mail] did not fail to prevent victimisation as alleged or at all. We took into account that [Mr Khan’s] second grievance against [Ms Allen] did not contain fresh allegations against her. Furthermore, as soon as he raised his second grievance, [Royal Mail] ensured that he would no longer report to [Ms Allen] but to Mr Lappin, and, as we have found, he never reported to [Ms Allen] again. We concluded that he failed to establish this allegation.”

Since the burden of proof remained on Mr Khan, this is an unassailable finding of fact. But even if this complaint were to be treated as a complaint of victimisation on religious grounds (in which case the reverse burden of proof was potentially applicable), the complaint nevertheless failed at stage 1.

This allegation was that Mr Wakefield shouted at Mr Khan during a one-to-one telephone meeting in July 2006. The ET found that this did not happen. Mr Brown said that a bare statement that the ET had preferred Mr Wakefield’s evidence on this point to that of Mr Khan was inadequate reasoning. Where it is simply a question of one witness’s word against another there may be little more to say. But the ET also referred to a contemporaneous e-mail (which we have not seen) which may provide further insight into the reasons why they preferred the evidence of Mr Wakefield to that of Mr Khan. In addition on other crucial parts of Mr Khan’s complaints (for instance the allegation about “white women”) the ET had rejected his evidence, giving reasons for having done so. I do not consider that Mr Brown has demonstrated an error of law. Mr Khan also alleged that Mr Wakefield threatened him with disciplinary action without cause. The ET found in paragraph 45 that Mr Wakefield had said that if Mr Khan continued to direct insults at Ms Allen he would have to pursue the matter in accordance with Royal Mail’s conduct code. Mr Wakefield subsequently passed the matter to Royal Mail’s HR department. Shortly afterwards Mr Wakefield offered to find Mr Khan a new role with a different line manager; but Mr Khan said that he did not want another role and that he was happy with the role he had. He had only asked for a new line manager. The ET concluded in paragraph 134 that Mr Khan had not established the facts alleged, namely that Mr Wakefield had threatened disciplinary action without cause. In view of their findings that (a) Mr Wakefield had not threatened disciplinary action and (b) there was cause to invoke the conduct code, this conclusion is also unassailable. The complaint thus failed at stage 1.

This allegation was that Mr Wakefield had not held regular meetings with Mr Khan and had forced him to work in isolation and without support. It is by no means clear what this allegation amounts to; in other words whether it was an allegation of unlawful discrimination or victimisation or something else. The ET found at paragraph 51 that towards the end of 2006 Mr Wakefield agreed with Mr Khan’s trade union representative that Mr Khan could work at home. He told the ET that he regretted that concession because it had become impossible to get Mr Khan to come back into the office. As time went on and Mr Khan was not in the office more and more of his work was undertaken by colleagues. The ET concluded at paragraph 136:

“We took into account that, from the end of 2006, [Mr Khan] worked full time from home at his own request, and that his insistence on being accompanied by a union representative to all one-to-ones with [Mr Wakefield] made scheduling of meetings far more difficult than they might otherwise have been. The evidence was not that [Mr Khan] was “forced to work in isolation”. We considered that although [Mr Wakefield] should have made a greater effort to get [Mr Khan] back into the office and to manage him properly, we concluded that [Mr Khan] did not establish this allegation.”

In my judgment this finding amounts to a finding that Mr Khan had not established the primary facts on which he relied. It follows that even if there might have been a reverse burden of proof resting upon Mr Wakefield if Mr Khan had proved a prima facie case, the allegation did not reach that stage. It failed at stage 1.

This allegation arose out of a restructuring of the Royal Mail’s Commercial Finance Department. Existing employees were to be assessed and some selected for posts in the restructured department. There were to be no compulsory redundancies. Those who were unsuccessful in their applications were to be assigned to a redeployment pool, which the ET described in paragraph 53. Those in the pool were described as “surplus”. Mr Khan was interviewed and assessed, but did not succeed in obtaining the positions for which he applied. The nub of his complaint was that Ms Allen had taken part in the selection process; and that he had been excluded from consideration for posts which would have required him to report to her. He said that that was a consequence of his earlier grievance about her and that it was either discrimination or victimisation.

The ET found as a fact in paragraph 56 that Mr Wakefield had deliberately ensured that Ms Allen would play no part in Mr Khan’s interview and assessment because he expected that Mr Khan would consider her participation as prejudicial to him. Thus Mr Khan’s main complaint failed on the facts. Mr Brown submitted that it was not enough for the ET to find that Ms Allen had not been involved in Mr Khan’s interview and assessment. If she had been involved in the interview and assessment of other candidates there might have been discrimination against Mr Khan; and the reverse burden of proof would require the respondents to demonstrate that there had been no unlawful discrimination. However, the ET found in paragraph 62 that there was no evidence that Ms Allen “was involved in decisions as to who would be placed in what new role.” This related both to Mr Khan and to his competitors. Since the ET had heard evidence from both Mr Wakefield and Ms Allen the only way of interpreting this finding is that it was a finding of fact that she was not involved at all.

The ET went on to find in paragraph 64 that Mr Khan was excluded from consideration for certain posts because he did not have a professional qualification which the restructured role required. They expressly found that “the requirement was not deliberately attached to the new role in order to exclude [Mr Khan] from it.” They concluded in paragraph 137 that this allegation had not been established because, contrary to Mr Khan’s belief, Mr Allen had played no part in the selection process. This conclusion of fact is one to which they were entitled to come. The complaint failed at stage 1.

This was an allegation that Ms Beech, who was charged with conveying the results of the selection process to Mr Khan, had admitted that he had not failed the assessment, and that he did not get one of the roles for which he had applied because he could not have a role in Ms Allen’s team because of the harassment case he had brought against her. In paragraph 71 the ET recorded Ms Beech’s denial that she had said that; and said that they accepted her evidence. Thus not surprisingly in paragraph 146 they concluded that the facts on which Mr Khan relied had not been established. The complaint thus failed at stage 1.

This was another allegation that Ms Beech had admitted in the course of an internal inquiry that she had not treated Mr Khan fairly because she had manipulated the selection process, depriving him of a post to which he was entitled. The allegation continued by alleging that Ms Beech had told the internal inquiry that Mr Khan could not have a job in Ms Allen’s section because he had made a complaint of harassment against her. Ms Beech gave evidence and denied having said what Mr Khan alleged. The ET accepted her evidence. Thus Mr Khan failed to establish the primary facts upon which the allegation was founded.

Once again the complaint failed at stage 1.

This allegation was that Royal Mail discriminated against Mr Khan by not reinstating him in an equivalent post to those to which he was entitled through the assessment process. Mr Khan also alleged that Royal Mail had admitted that he had been victimised.

The ET found that Mr Khan had not scored as well in the assessment as the other candidates upon whom he relied as his comparators. They found at paragraph 67 that Royal Mail offered him a post as New Product Design Support Manager. Although that was at a lower grade than his previous post, his salary would be protected, and Royal Mail offered him the opportunity to study for a professional qualification on a day release basis. Despite reminders Mr Khan did not respond to this offer, and some three months later in April 2008 it was withdrawn. In the meantime Mr Khan’s requests for full time study leave had been refused. Mr Khan was assigned to the redeployment pool. Mr Khan raised a complaint which Mr Webster investigated. In his report of 11 November 2008 he said:

“You have rejected the role that was offered, along with associated development opportunity to complete your finance qualification and pay protection.”

He concluded that Mr Khan’s then current status as surplus manager was appropriate. He also apologised to Mr Khan for Royal Mail’s failure to offer him the opportunity to consider a post in Ms Allen’s department.

In paragraph 147 the ET concluded that Mr Webster had not recommended reinstatement; and that there had been no admission of victimisation. Bearing in mind the ET’s findings about the results of the assessment process, and the contents of Mr Webster’s report, this conclusion is one to which they were entitled to come. Once again the complaint failed at stage 1.

Although it is slightly out of order I will take allegation 4 next. This allegation also arose out of the aftermath of the selection process. Mr Khan alleged that Royal Mail continued to discriminate against him by treating him as “surplus” and by not treating him in the same way as others who had passed the assessment and placement process. The ET’s finding of fact was that the reason that Mr Khan remained “surplus” was that he had failed to engage with the redeployment process. This finding was almost inevitable, given their findings on allegation 9. In addition the ET found that Mr Khan was mistaken in thinking that there had been a “pass” or “fail” in the assessment. There had simply been a scoring in which Mr Khan had not done as well as those upon whom he relied as comparators. These findings were all part of the ET’s function in deciding whether Mr Khan had succeeded at stage 1. At that stage the question of reverse burden of proof did not arise. The ET decided that he had not.

This allegation complained of discrimination because of the protracted time Royal Mail took to deal with his grievances and complaints, and of a failure to abide by its own policies against bullying and harassment. In paragraphs 32 and 33 the ET noted that under Royal Mail’s code of conduct bullying could be judged to be gross misconduct; but that Mr Khan had interpreted it as meaning that bullying would be interpreted as gross misconduct. That was the foundation of his complaint that Ms Allen had not been moved. In paragraph 148 the ET noted that neither Royal Mail’s internal inquiry, nor the ET itself, had made any findings of harassment or victimisation. That, therefore, disposed of that part of allegation 8.

So far as the time taken to deal with the complaint was concerned, the ET considered that because of the complexity of Mr Khan’s complaints and the difficulty of understanding exactly what they were, this allegation was not established. This was a finding of fact, at stage 1 of the inquiry. No question of the reverse burden of proof arises. It was a value judgment to which the ET was entitled to come.

This allegation was the allegation that Royal Mail had admitted victimisation but had refused to remedy the situation. The ET found as a fact that no such admission had been made. They also found that there had been no refusal, but that Mr Khan had been told that he had in effect exhausted his remedies. Both these were findings of fact to which the ET were entitled to come. The complaint failed at stage 1.

From this review of the ET’s decision it can be seen that with the possible exception of the first part of allegation 24 Mr Khan’s complaints all failed at stage 1. But on a strict view of the way in which allegation 24 had been framed (by reference to the findings of the internal inquiry) even that part of the allegation can be said to have failed at stage 1. Having set out and dealt with the allegations one by one in that way, the ET added a concluding paragraph 157:

“In accordance with the conclusions set out above, the tribunal determined that [Mr Khan] did not prove on the balance of probabilities that the respondents or any of them had committed an unlawful act or acts of discrimination or harassment on racial or religious grounds. Accordingly we did not determine whether or not the respondent proved that none of the acts was committed on either of those grounds.”

However, in fact, as we have seen the ET did consider the explanations given by Ms Allen about allegation 24 and so far as the first part of that allegation was concerned, it played a part in the ET’s reasoning. It follows, therefore, that, as Ms Tharoo accepted, the phrasing of that paragraph was unfortunate. Mr Brown submitted that this paragraph revealed a clear error of law, and was fatal to the validity of the ET’s decision. What the ET had done, he said, was to have placed the burden on Mr Khan not only to establish the primary facts on which he relied but also to prove that those facts amounted to unlawful acts. In other words, they had conflated stage 1 and stage 2.

In my judgment there is no reason to suppose that having correctly set out the issues that they had to determine, expressly referring to the reverse burden of proof, the ET then lost sight of the correct approach when dealing with the individual allegations. It is true that their treatment of allegation 24 in paragraph 130 of their decision is badly phrased. However, given that they made positive findings of fact namely that Ms Allen asked about “women” not “white women” and that the question carried no connotation of race or religion, I do not consider that the misdirection (if such it was) was material.

I accept also that the ET’s broad-brush concluding paragraph was unfortunate, and did not accurately reflect the careful exercise that they had in fact carried out. But that is the real point. They had carried out the correct exercise before they got to their concluding paragraph, and I do not consider that it vitiated the entirety of what had gone before. In addition, as I have said allegation 24 was framed by reference to the results of the internal inquiry, and viewed from that perspective what the ET said in paragraph 157 was, strictly speaking, legally correct, even though factually it misdescribed what the ET had actually done.

I would dismiss the appeal.

I agree.

I also agree.