Appeal No.	 EAT/1046/01/SM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
SITTING AT: 
Cardiff Civil Justice Centre, 2 Park Street, Cardiff CF10 IET

	At the Tribunal
	On 19  March 2003

Before
THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)
MR G LEWIS
MR P M SMITH

MR K LEVERSON	APPELLANT

(1) MS N F HUGGINS 
(2) GWENT POLICE FORCE	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR PAUL EPSTEIN
(of Counsel)
Instructed by:
Messrs Hugh James Ford Simey
Solicitors
Martin Evans House
Riverside Court
Avenue de Clichy
Merthyr Tydfil
CF47 8LD

For the Respondent	MR T KIBLING
(of Counsel)
Instructed by:
Ms N G Huggins
31 South Market St
Newport
Gwent
NP20 2AW

THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)

1	This is an appeal against a Decision of the Employment Tribunal sitting at Cardiff, described as held on Tuesday 15 May 2001, but in fact taking place over a period, we are informed, of a number of days, and handed down on 19 July 2001.  By that Decision, the Employment Tribunal unanimously concluded that the Applicant had suffered unlawful discrimination under sections 1(1)(a) and 4 of the Race Relations Act 1976 (“the 1976 Act”) by both of the Respondents.  The Tribunal records that it concluded that the acts complained of were part of a series of continuous discriminatory acts and that time should be extended, within the provisions of section 68(6) of the 1976 Act, on the grounds that in all the circumstances it was just and equitable to do so.  

2	The Applicant, Ms Huggins, was employed by the First Respondent, Gwent Police Force, as was the Second Respondent, Mr Ken Leverson.  The Applicant was described in paragraph 6 of the Decision as a black Welsh woman, who had worked for Gwent Police Force since 1991.  After six months employment she had begun work in the Prosecution Department of the Force and was later moved to Cardiff Road, Newport.  She had, at an early stage in her career, had contact with the Second Respondent, who was also employed by the First Respondent, and was described in paragraph 18 of the Decision as a man with a distinguished record of long public service in the Gwent Police, but had not worked in the same office as him until shortly before the incidents complained of in her application arose.  By that time, they were both working in an office in which the Second Respondent was the only man, and the Applicant was the only black person.  There were, it seems, some eight or nine women working in the office, including the Applicant, and, as we have indicated, the Second Respondent was the only man.  

3	The Tribunal began its recitation of evidence by reference to facts in 1994 and made certain findings about what had happened in 1993 to 1994 and subsequently.  But there is no relevant finding in relation to the Second Respondent until, it would appear, the end of 1997 or the beginning of 1998.  We say it “would appear” because the Decision is not entirely clear in relation to dates.  The structure of the Decision, about which we shall say more later in this judgment, is that, in paragraph 24 onwards, there is a recital that the Applicant was the subject of racial abuse from others employed by the First Respondent; that continues in paragraphs 25 and 27.  There is then reference to an incident, again not involving the Second Respondent, in January 1998, in paragraph 29,

4	The first reference to the Second Respondent is in paragraph 28 of the Tribunal’s Decision, in relation to two incidents, to which we will refer later, and can be shortly called at this stage, the “desk” incident and the “piccaninny” incident.  Neither of those two incidents are dated, but, if the structure of the Tribunal’s Decision is to be regarded as chronological, which it certainly becomes later in its body, then those incidents must both antedate January 1998, which is the date of what can be called the “Paula” incident, not involving the Second Respondent, set out in paragraph 29 of the Decision.  We refer briefly to the question of time because that has some significance, in the light of the submissions of Mr Epstein, who has represented the Second Respondent before us today on his appeal.  

5	Our attention has been drawn to the Originating Application and, indeed, the amended Originating Application.  The Originating Application, on its face, complains of race discrimination on various dates from 1998 until 2 September 1999.  The amended Originating Application, which particularises and, to that extent, replaces, the original Originating Application, recites in subparagraph (i) of the Particulars that between July 1997 and September 1999, the Applicant was subjected to harassment, unfair treatment and oppressive behaviour by the First and Second Respondents.  There are references in the second sub-paragraph to what one might call the “staring” matter, said to have been on numerous occasions between 1997 and September 1999.  There are then, in subparagraphs (iii) to (vi) inclusive, incidents upon which it seems, notwithstanding that they appeared in the Applicant’s witness statement, reliance was not placed, and/or was abandoned at the Employment Tribunal, and then the recital recommences in sub-paragraph (vii) by reference to events in December 1997, again not concerning the Second Respondent.  

6	Mr Epstein submits that there was lack of clarity in relation to the findings by the Tribunal and, indeed, possibly, in relation to the way that the claim by the Applicant was put before the Employment Tribunal.  He submits as follows: first that no proper attention was given by the Employment Tribunal, not least by virtue of their apparent blanket extension of the limitation period, by reference to sub-paragraph 3 of its Decision, as to whether any pre-January 1998 allegations were found to be separate, identifiable and actionable causes of action, notwithstanding the original Originating Application being limited to the period subsequent to January 1998; secondly, as to what the role of those matters was, if they were not relied on as independent causes of action; and, thirdly, in particular, that there was no proper differentiation, at any rate on the face of it, in the decision making of the Tribunal as between events which did involve the Second Respondent and events which did not.  

7	But leaving aside the early incidents, we shall return in a moment to set out those incidents which are specifically found in relation to the Second Respondent in a moment.  Before we do so, we should explain the context in which this judgment is now being given.  Mr Epstein opened the appeal and took the morning of the first day of what was listed for a day and a half case in expanding upon the Skeleton Arguments which had been lodged on behalf of the Appellant and, of course, we took into account not only that Skeleton Argument, but also the Skeleton that had been served by Mr Kibling, who has appeared on behalf of the Applicant, Respondent to this appeal.  Neither of the two Counsel appeared below.

8	We were informed at lunch time that Mr Kibling, on his client’s behalf, and his client, who has been present today in Court as indeed has the Second Respondent, no longer opposed the allowing of this appeal, and remission to a different Employment Tribunal for a complete rehearing of the case as between the Applicant and the Second Respondent.  That is the conclusion to which we had in any event provisionally come, unanimously, having read the papers and heard Mr Epstein this morning, and it therefore comes as no surprise to us that Mr Kibling should take that extremely realistic view.  

9	However, we propose to deliver a reasoned judgment and, indeed, Mr Kibling positively supports that course, for two reasons:
(1) because we are allowing this appeal, and it is never appropriate to allow an appeal against a decision of a Court or Tribunal below without the most careful consideration, even where such course is invited by both parties to be taken by consent; and
(2) because, in those circumstances, we are remitting this matter to a different Tribunal and it will be of importance for some consideration to be given, for the benefit of that Tribunal, to the structure and approach required in relation to this case, although, of course, we express no view as to which way that Tribunal, on a complete re-hearing, will eventually decide.  

10	There is an anomaly which results from the conclusion to which we have come, and the course to which both parties now invite us to take, by virtue of the role of the First Respondent, the Gwent Police Force which did not appeal, and consequently, the finding of the Tribunal that the First Respondent was guilty of unlawful discrimination on racial grounds against the Appellant remains unappealed and remains intact.  A remedies hearing will, in due course, no doubt, be held in respect of the conclusions come to by the Tribunal that the First Respondents were guilty of unlawful discrimination.  However, in the course of his submissions to us, Mr Epstein, in launching his frontal attack on the Decision of the Tribunal in this case, to which we shall return, also included a critique of the Tribunal’s conclusions in relation to the First Respondent, not, of course, in order to found an appeal which is not made, but in order, as he put it, to emphasise what he considered and submitted to be the inadequacy of the Tribunal’s Decision in its totality.  We agree that the way in which the Decision was arrived at by the Tribunal in respect of the First Respondent, both leaves a very great deal to be desired, and, in any event, is difficult to understand, and when criticising, as I am afraid we shall do, this Decision by this Tribunal, we would echo the critical words of Mr Epstein, even in relation to the Decision which remains unchallenged, in respect of the First Respondent.  

11	So far as the First Respondent is concerned, they plainly are vicariously liable in respect of the acts of their employees, and would only be able to avoid liability in respect of discriminatory acts by their employees if they were able to satisfy the provisions of paragraph 32(3) of the 1976 Act, but it is important to see, before we turn to the position of the Second Respondent, what the case was, as pleaded against the First Respondent, and what the Decision eventually was.  

12	The case, as pleaded against the First Respondent, is that set out in the amended Originating Application.  Allegations are made that discriminatory remarks and conduct were made against the Applicant, not only in the respects to which we shall refer later by the Second Respondent, but also by other employees of the First Respondent Police Force.  In sub-paragraph 2 sub-paragraph (vii), sub-paragraphs (xv) and (xxi) of the amended Originating Application, allegations are made which name three ladies who were their employees, who worked in the office to which we have referred.  

13	The Decision, as we have earlier indicated, set out in its conclusions at paragraphs 24, 25 and 27, findings in relation to named lady employees.  All three of those were named in the amended Originating Application, in the sub-paragraphs to which we have referred, but the Tribunal, in paragraph 48 of the Decision, concludes as follows:
“We find the First Respondent has been guilty of direct racial discrimination by a failure to act on the part of Mr Evans and Mr Prichard and to act adequately on the part of Mr Malcolm Davies.  Additionally we find that the First Respondent is directly liable for the actions of the Second Respondent”
There is no mention of finding the First Respondent liable in respect of the actions of those three ladies.  

14	So far as Mr Evans and Mr Prichard and Mr Malcolm Davies are concerned, they feature in the Decision only in the following way.  First, in paragraph 24, the Tribunal recites as follows:
“The Applicant did not complain”
[this is in relation to racial abuse directed towards her in 1993 to 1994]
“but we accept that Mr John Evans, supervisor, on the balance of probabilities probably spoke to [two named employees] about this abuse.  ….. The Applicant was suspicious of any effective action by John Evans who must by then have been aware of unacceptable behaviour towards the Applicant.”

15	Then, in paragraph 29, the “Paula” incident is referred to (again, nothing to do with the Second Respondent, as earlier stated) and this lady, Paula, is said to have approached John Evans and Ian Prichard on the basis that an incident had occurred in which she felt the Applicant may have been offended.  The Tribunal continues:
“We think it would be natural for the Applicant to tell Ian Prichard and John Evans that she had been described as a “happy bunny” which, in the circumstances, had racist connotations”
and nothing further was done by them.
Then, there is an event referred to in paragraph 35, to which we will refer later, when the Applicant complained to Mr Malcolm Davies, described as “a very experienced policeman”, and the finding of the Tribunal is that Mr Davies “either did not hear or misunderstood what was being said” to him, and in paragraph 36 the conclusion is:
“Despite his clarity of what the Applicant described”
 [we are not quite sure what that means]
“as the non-racial nature of her complaint (which we reject) appropriate training and experience would dictate that such behaviour could not be discounted, given that the Applicant was the only black person in the office and the only one to voice a complaint.”

16	It is in relation, therefore, to those findings in relation to Mr Evans, Mr Prichard and Mr Malcolm Davies, that it appears that the First Respondent has been found liable, additionally, of course, to the First Respondent being found vicariously liable in respect of the acts of the Second Respondent, which are the subject matter of this appeal.  It is apparent that we endorse the criticisms by Mr Epstein in relation to the findings which are very difficult indeed to follow, made by this Tribunal, in respect of the position of the First Respondent, so far as concerns matters other than relating to the Second Respondent to which we now turn.  

17	Before we do so, we should deal briefly with the law.  We have, very helpfully, been directed by both Counsel, in an agreed bundle of authorities, to the relevant law in respect to the arguments put before us.  Mr Epstein reserved a fall-back case on perversity, but did not in the end need to develop that argument because he rested his case for the entirety of the submissions he made, which he had not concluded when this appeal came to an abrupt end, as we have described, on what one might call the inadequate or incorrect legal approach of the Tribunal.  His case could be encapsulated briefly as a ‘no-reasons’ appeal or an ‘inadequate reasons’ appeal, but that has become somewhat of a pejorative term in recent years.  

18	There is, in so many appeals, reference to Meek -v- City of Birmingham [1987] IRLR 250 on the basis that an appellant complains about a Tribunal’s decision with which he disagreed, and asserts that there were insufficient reasons, and that, on the basis of Meek a party who loses is entitled to understand why it lost and, indeed, why the other side won, and that the appeal in question is based on such a failed scenario.  It is always a form of appeal in respect of which the Employment Appeal Tribunal, whose jurisdiction is based only on appeals on points of law, must be sceptical, but Mr Epstein does not simply rest his case on ‘no reasons’.  He asserts the particular obligation of an Employment Tribunal in the area of race and, indeed, sex and disability discrimination. 

19	That arises in two ways, with which we shall now deal.  
(1) Unlike other areas of employment law dealt with by Employment Tribunals, there is more than one decision that has to be made by a Tribunal.  Findings of primary fact, which are very often enough to resolve cases of unfair dismissal, for example, are not sufficient to resolve cases in discrimination, as we shall illustrate.
(2) As Mr Epstein submits, quite apart from the fact that the law of discrimination requires a greater care in decision making by a Tribunal, the very area of discrimination requires a more meticulous and sensitive treatment by an Employment Tribunal, and we shall return to that submission of his later.  

Discrimination law
20	This does not involve any conclusion that discrimination needs a different approach to unfair dismissal or redundancy; it simply emphasises the fact that in order that a conclusion can be reached in discrimination, there is a more complicated route to be followed.  Thus, it is not a question of saying that Meek applies all the more in a discrimination case, or that Anya -v- University of Oxford [2001 ICR 847 imposes some special approach in discrimination cases.  It is based upon the statutory structure in discrimination cases.  

21	First, the primary facts must be found so that the treatment complained of can be identified.  It is sometimes the case that there is no dispute as to the facts, and the only argument is as to the conclusions or inferences to be drawn from the facts, but that is rare.  In most cases of discrimination, the primary facts are in issue and they have to be found.  That exercise is the same as applies in most other areas of employment law, if not all, such as unfair dismissal.  The findings of primary fact must be made and, of course, sufficient reasons given within Meek.  

22	But then, secondly, there is likely in most cases to be a need for a next question.  We shall explain what we mean by “most cases” in a moment.  That second question is whether the treatment was less favourable treatment within section 1(1) of the 1976 Act.  This is where the issue of comparator or hypothetical comparator usually arises.  The discrimination legislation is not aimed at violence or harassment or persecution per se; as has so often been said, bad employers are no doubt to be the subject of criticism, and if their conduct leads to termination of someone’s employment, that is likely to amount to an unfair dismissal or constructive dismissal, but per se, an employer who is simply a bad employer faces no action under the discrimination legislation.  What renders the conduct of the bad employer actionable in the discrimination field, is that he acts more badly against some people than against others.  That is the need for less favourable treatment.  That second plank of the conclusion is likely to be partly a question of the findings of primary fact, particularly where actual comparators are in issue, and partly inference, where hypothetical comparators are in issue.  That requires, therefore, the finding of the primary facts and, where necessary, the drawing of the inferences from those primary facts.  

23	The third stage, assuming that treatment which is less favourable is established, is whether, within section 1 of the 1976 Act, that less favourable treatment is on racial grounds.  That, although it may involve some primary facts, is likely to be largely a question of drawing of inference from those primary facts.  It is in this area where King -v- The Great Britain China Centre [1991] IRLR 513 which was, we note, the only authority referred to by the Employment Tribunal in its Decision, may come into play because, as is pointed out in that Decision and in others, it is sometimes difficult to track down inherent or intrinsic race discrimination, which may not be immediately noticeable, and conclude that conduct which is not, on its face, immediately to be ascribed to a racial motive is, nevertheless, on racial grounds.  It will therefore sometimes require some care for the Employment Tribunal to tease out the racial grounds which lie behind the less favourable treatment. 

24	It is because of the need for those three stages to be gone through in most or at any rate many cases, that discrimination requires the greater care in the findings of fact by a Tribunal.  The cases to which we have been referred we shall not recite in any detail.  As Mr Epstein has said, the early decisions on the need for the finding of primary facts are all in the unfair dismissal field, UCATT -v- Brain [1981] IRLR 325; Martin -v Glynwed Distribution Ltd [1983] IRLR 198 and Varndell -v- Kearney & Trecker Marwin Ltd [1983] IRLR 335.  

25	It is important always to emphasise, in relation to the job of the industrial jury, that they do not need to lean over backwards to make detailed findings of fact on every aspect of the evidence which they have heard.  What they are required to do is to identify the issues which they have to decide, and make sufficient findings of fact in relation to those issues, and sufficiently disclose their reasoning in order to justify those findings of fact.  Unlike decisions in the High Court, which very often need the fullest possible resume of the entire background, the Employment Tribunals, like Tribunals in other areas, such as Immigration and Social Security, are not expected, or required, to set out detailed analysis of the facts and give an entire history, based on the evidence that they have heard.  But when one moves into the field of discrimination, to which we have referred, then it is necessary for the Tribunal to make a sufficient finding both of the primary facts and the inferences, and a sufficient disclosure of their reasons in both regards, simply because of the extra layer, to which we have referred.  

26	Clearly the most significant case in this area is Anya, to which we have referred.  Anya itself referred to other important and well-known cases, first to the cases in the discrimination field, such as King, and also to the well-known dicta of Lord Goff in Armagas -v- Mundogas [1986] AC 717 and Flannery -v- Halifax Estate Agencies Ltd [2000] 1WLR 377; but with regard to discrimination, Sedley LJ approved the judgment of Mummery P, as he then was, in Qureshi -v- Victoria University of Manchester [2001] ICR 863 in paragraph 9 of his judgment, and he quoted from Mummery P’s judgment, as follows:

“The process of making inferences or deductions from primary facts is itself a demanding task, often more difficult than deciding a conflict of direct oral evidence.  In Chapman v Simon [1994] IRLR 124 at paragraph 43, Peter Gibson LJ gave a timely reminder of the importance of having a factual basis for making inferences.”

Mummery P then quoted the passage from Chapman -v- Simon which thus is incorporated, with approval, into Sedley LJ’s own judgment.  

27	At paragraph 24 in his judgment in Anya, with which the other members of the Court of Appeal agreed, Sedley LJ said this:
“The difficulty is not answered by the decisions of this court relied on by Mr Underhill”
(who was Counsel for the Respondent, who in that case was seeking to uphold a decision by an Employment Tribunal that there was no discriminatory treatment and the cases referred to were Martin -v- Glynwed and Meek) 
“to the effect that tribunals are not required to do more than make findings of fact and answer a question of law.  In the race relations field, this principle does no more than beg the questions: what findings, what law?  It is, elsewhere, above all in King ……. that the answers lie.  In Tchoula -v- Netto Foodstores Ltd, (unreported 6 March 1998) Morison P …… spelt out what this means in practice:”
 and then he quotes Morison P’s judgment with approval, and it is worth repeating that here:
“A bald statement saying that X’s evidence was preferred to Y’s is, we think, both implausible and unreasonable and therefore unacceptable; and it might appear to have been included simply to try and prevent any appeal.  It seems to us likely that there will be a great deal of background material which is non-controversial.  There is no need to recite at length in the decision the evidence which has been received.  What a tribunal should do is state their findings of fact in a sensible order (often chronological), indicating in relation to any significant finding the nature of the conflicting evidence and the reason why one version has been preferred to another. It is always unacceptable for a tribunal to assert its conclusion in a decision without giving reasons.”

28	Later in his judgment (at paragraph 26), Sedley LJ warned an Appeal Tribunal, such as ours, on the one hand not to encourage appellants who try to comb through reasons which are otherwise adequate for hints of error and fragments of a mistake, and, on the other hand, not to encourage respondents who comb through a patently deficient decision for signs of the missing elements, and try to amplify those by argument into an adequate set of reasons.  We are entirely satisfied that it is necessary in discrimination cases to be the more careful because of the extra stages that are required to arrive at the conclusion of unlawful discrimination.  

29	We return to the second submission which Mr Epstein made, which stands quite independently of his submission that there is a need to be the more careful in a discrimination case, because of the extra stages necessary.  He relies upon the decision of the Court of Appeal in Chapman -v- Simon, to which we have referred, and in particular, the important passage of Peter Gibson LJ at paragraph 41, who says as follows:
“Complaints of racial discrimination are by their nature serious.  The complainant who can establish unlawful discrimination against him or her on racial grounds, has suffered a serious wrong, for which Parliament by the Race Relations Act 1976 has provided remedies.  For the respondent to such a complaint, a serious accusation has been made, particularly so when the respondent is a professional person such as a teacher, and even more so when that teacher is the headteacher of a school containing a high proportion of children of ethnic minorities.  For a respondent local authority which has within its area many from ethnic minorities, an allegation of unlawful discrimination is also a serious matter affecting its relationship with the community which it serves.  It is therefore appropriate that in such a case as the present, Industrial Tribunals should perform their duties with meticulous care.”

That is a powerful and persuasive passage which has been subsequently referred to in later cases, and with which the rest of the Court of Appeal in Chapman agree.  That emphasises the special place that discrimination has adopted in our jurisprudence.  The statutory scheme places a very heavy burden on employers, and rightly so.  It is one whereby they can only escape liability within the very limited ambit of section 32(3), to which we have referred.  

30	In addition, it imposes obligations on individuals who are employed and renders them personally liable to their fellow employees if they themselves participate in or themselves perform discriminatory acts towards a fellow employee.  That gives very important protection to those who are within the ambit of the discrimination legislation, and rightly so.  Discrimination can leave people who are the subject of such discrimination scarred, sometimes for life, and certainly humiliation and distress and discomfort will ordinarily follow; but particularly in relation to an individual respondent, the same can apply in relation to a false allegation of discrimination, and a finding which is unfairly reached; and it is, therefore, the more important that the Courts lean over backwards to satisfy its obligations, both towards the complainant and towards those who are complained against.  

31	In this case, it is plain that, on the findings of the Employment Tribunal, the Applicant underwent a lengthy period of persecution on racial grounds.  On the other hand, we are told that the Second Respondent, who still protests his innocence and, indeed, whose excellent previous record we have referred to as being complimented by the Tribunal, who actually went further in paragraph 18, and indicated that he had been brought up among members of the ethnic community, and counted black individuals among his friends, and, indeed, had shown kindness in the past to the Applicant and was described in highly complimentary terms by his colleagues; and that the Second Respondent, we have been told, has, as a result of what he regards to be unfair conclusions and incorrect allegations, been on sick leave for many many months.  

32	We agree that a Tribunal in those circumstances has the extra burden to be meticulous in its conclusions.  No one wishes to place an undue burden on Employment Tribunals, who carry out a difficult task, particularly where, as here, they are likely to have to reach the conclusion that one side or another is not telling the truth, as opposed to simply being mistaken, and who day in and day out, are making, often extempore, decisions in relatively informal surroundings.  They have rightly been told, and continue to be told, that they do not need to be lengthy in their decisions; that they only need to deal with the relevant issues and make findings of that evidence, and in relation to those issues.  

33	The question of the approach has been reconsidered very recently, in the Court of Appeal in Deman-v- Association of University Teachers [2003] EWCA Civ 329, and we shall not repeat what is there stated, in paragraphs 39 and following, but we are satisfied that the Decision in this case was wholly inadequate to deal with the difficult situation with which the Tribunal was dealing and we now turn to that Decision, so far as it concerns the Second Respondent.  We have already made criticisms so far as it concerns the First Respondent.  

34	The first general point to make before we deal with the particulars is this: whereas we have already indicated that it is not necessary for a Tribunal to set out the full history and to deal with evidence other than that relating to the issues which they have to decide, it is equally, as we see it, necessary for a Tribunal’s decision to be comprehensible to the outside reader.  This Tribunal’s Decision is not; it uses a very great deal of shorthand; it refers to incidents in very short terms indeed, for example, in paragraph 28, in relation to what we have called the “piccaninny” matter, it simply says that:
“We accept that Kenneth Leverson did use the word “piccaninny” to describe the Applicant”

35	In relation to the most serious matter, to which we shall return, this we regret must be described as the “nigger” incident.  This appears as follows in the Tribunal’s Decision.  Having referred to the steps which it considers Mr Davies could, or should, have taken, to supervise or monitor matters within the police force, the Tribunal says as follows:
“This failed ….”
And we are not entirely sure what that is a reference to
“because very shortly afterwards (as we accept her evidence on the matter set out in her diary) Ken Leverson, after being spoken to by Michael Davies, called the Applicant in the vilest way “a nigger”. ”
and that is the only reference that is made to the “nigger” incident in the entirety of the Decision.  

36	As we shall indicate, each and every one of these incidents is referred to by the Tribunal in a way that the outside reader would not understand, taking for granted that the background matters are known.  That may be a criticism of itself, which we believe that it is, but it also exemplifies a much greater concern which we have in relation to this Decision, and that is that in dealing with each of these incidents, the Tribunal does not set out the rival accounts, even in the shortest form, and then indicate why it prefers the Applicant’s account to that of the Second Respondent’s and his witnesses.  

37	There are ten incidents, in relation to which the Tribunal made findings with specific reference to the Second Respondent and we shall turn to each of them in turn.  

(1)   The “piccaninny” incident.
This features, as we have indicated, in paragraph 28, and we have recited the only two lines in the Decision in which reference is made to it.  It is undated.  
(2) The “nigger” incident
This too is undated in the Decision.  The fact that it is undated may carry some significance, when we say that it is in fact known from looking at underlying documents to have taken place, if it took place at all, as the Tribunal found it did, on 12 January 1999 and it appears, as we have indicated, only in three lines in this Decision, and itself inside (a) a parenthesis and (b) a causal clause, relating to why it can be said that Mr Davies’ actions or inactions were, in the opinion of the Tribunal, inadequate.  

38	These two incidents, the “piccaninny” incident and the “nigger” incident alone carry obvious racial connotations and would fall within the kind of category to which we referred earlier when we said that they would not necessarily need great consideration at each stage.  As far as these two incidents are concerned, certainly the “nigger” incident, the real stage would be the first, namely the finding of fact as to whether the incident occurred at all.  If the “nigger” incident occurred, then it was plainly less favourable treatment and plainly on racial grounds.  There is some question as to whether the same would follow in relation to the “piccaninny” incident, where the Appellant gave an explanation which is not referred to in the Decision, which might have palliated the use of that word and rendered it not racial if, in fact, it occurred at all.  But so far as the “nigger” incident is concerned, there could be no justification or explanation whatever, whether on a discriminatory basis otherwise, if, in fact it occurred.  

39	The other eight incidents, to which we shall refer later, did not, on the face of them, carry a racial connotation and would need a more careful analysis as to whether inferences of less favourable treatment on racial grounds could be drawn.  
40	The “nigger” incident, if it occurred, is quite appalling and we find it extremely strange that it is dealt with in three lines in the Tribunal’s Decision.  The other matters, to which we shall refer, range from the relatively significant to the relatively trivial, but this matter, if it occurred, is greatly significant.  Had this been the only complaint made by the Applicant against the Second Respondent, it would itself have been the most obvious racial discrimination, if it occurred, and would have carried with it the requirement for a Tribunal to give compensation, and it may be that from a conclusion that it occurred, would have followed the possible conclusion that other events occurred also.  But this Tribunal did not rest its conclusions, it seems, on this one event.  The Tribunal did not even set out what occurred, never mind set out the rival versions of what occurred.  

41	On the Applicant’s case, on 12 January 1999, the Second Respondent, in the presence of either seven or eight other female employees, behaved quite outrageously.  The Applicant alleged, in paragraph 63 of her witness statement, in relation to the Second Respondent, after setting out who was present, as follows:
“Ken Leverson was, as usual saying things to make [and she named another female employee] laugh.  I then heard him say “watch this” this made me look at him, he then leaned forward, stared straight at me and smiled and said “Nigger” ”
She then records that the female employee in question said “I am not getting involved in that”.  Four other female employees went red, everyone went quiet, the Applicant got up from her computer and put her coat on and left, way before her leaving time, and told another female employee, who had witnessed the incident, that she was going home; a yet further female employee, who had been there, and had seen what was going on, moved out of her seat and asked her where she was going, obviously concerned that she was going to complain to somebody. 

42	If that is what occurred, it is effectively a physical assault, and a deliberate one, on the Applicant.  It is not a case of someone otherwise behaving admirably over the years, with a good record in the racial field, and an experienced and well-established and highly thought of police officer, saying something which, in fact, disclosed that what might not otherwise have been apparent, namely some secret racial discrimination; the kind of matter that has to be teased out, as referred to in King.  This would be a deliberate and extremely unpleasant, unprovoked, racial attack.  It is, in those circumstances, as we have indicated, strange that the Tribunal did not set out what occurred, but referred to it in the shorthand way they did.  

43	It is even stranger that they did not explain why they came to the conclusion they did, that they disbelieved the Second Respondent when he denied it had occurred.  The following two matters would appear to be particularly significant.  
(a) All the lady employees named as having been present and, indeed, to the extent described, participated, or at any rate acquiesced, in this serious incident, gave evidence that nothing of the kind had occurred, and had never heard the Second Respondent use the word “nigger” and that it would not have been the kind of thing that he would have done.  None of this is set out in paragraph 37 of the Decision.  Consequently, on the face of it, there is no choice made by the Tribunal between the Applicant on the one hand, as supported by notes she made in her diary, and the Second Respondent and his witnesses, on the other.  The only answer that could be put forward, which Mr Kibling put forward in his Skeleton Argument, was by reference to what the Tribunal had said about the witnesses which it had heard, in short form in paragraph 22 of the Decision.  The Tribunal said this:
“We have also considered in the round why the First Respondent’s witnesses have no recollection at all of any incidents or saw nothing untoward….. It is not for the Tribunal to find the reason to explain their evidence being so consistent in their blanket approach of ignorance of inappropriate behaviour save to say that the Respondent himself has had contact with his witnesses and as he explained on oath to the Tribunal “told them to tell the truth”.  Certainly the opportunity for collaboration has existed.”

Mr Epstein points out that in fact the only evidence about contact with the witnesses was that the Second Respondent, who had been immediately suspended from his employment and thereafter remained ill on sick leave, had lunch on one occasion with one of the ladies, and had bumped into another by accident in the supermarket.  

There is no finding by the Tribunal that there was collaboration between these witnesses; their evidence, to which we have been referred, is not, on the face of it, in any way in standard form; they give different accounts of different incidents; they are certainly united in saying that this “nigger” incident did not occur, but there is no finding by the Tribunal that, because they were all involved in the “nigger” incident, they dishonestly partook in a conspiracy of silence, and no other explanation than the words “the opportunity for collaboration has existed” is put forward for the Tribunal’s rejecting the evidence of all of them.  There is, in paragraph 13, a correct recital by the Tribunal of its task to take into account the demeanour of the witnesses, but there is no finding by the Tribunal that any of the witnesses were shifty or obviously trying not to tell the truth or were nervous, or anything of that kind. 

(b) Although this is not a case of perversity, at any rate as we have concluded, not having heard the end of Mr Epstein’s submissions in the circumstances we have described, nevertheless, it is significant in the light of the extremely brief way in which the matter is referred to, to note that, notwithstanding, on the face of it, the extremely serious nature of this incident, the Applicant made no complaint whatever to anyone about it.  

44	The reason why we indicated earlier that 12 January, a date omitted from the Decision, as we noted, is significant, is that four days earlier, namely on 8 January 1999, the Applicant had made a complaint to Mr Malcolm Davies, and he had made notes of that meeting, to which we will refer.  According to Mr Davies’ evidence, and on this aspect the Tribunal did not disbelieve him, or at any rate they do not record any disbelief, he stated that he told the Applicant to “come and see him again”, if the behaviour of which she was complaining continued, and that she said she would.  If the Appellant is right, four days later, this outrageous event occurred, and yet she did not complain or return back to Mr Davies, as invited.  

45	On the face of the Decision, paragraph 38 of the Decision, the next paragraph, records only something that occurred eight months later, when there was discussion in the office, allegedly, of her financial affairs.  That is what led to the complaint that she did make, and which led to the suspension of the Second Respondent and, eventually, to these proceedings; but there was, on the face of it, an eight month gap when a complaint was made, which related to something different.

46	We have already indicated that if this had been the only complaint, namely the “nigger” incident, one would have expected a Decision of the Employment Tribunal to have been a careful and meticulous one and to have taken at least several paragraphs to indicate what the rival accounts were, and to come to the conclusion that it did, giving the necessary reasons.  The fact that in this case it took only three lines, and the passage to which we have referred, causes us to be extremely concerned as to whether the Tribunal in fact carried out its duty in this regard at all.  Had they done so, had they made full findings of fact, together with reasons, as to why they rejected the evidence of all the eight or nine witnesses to the contrary, then that would have been, or could have been, the starting point for other findings, but it did not so feature in the Decision.  It would equally, as we have indicated, not have been difficult at all, it would hardly have been necessary to have gone on to make the necessary findings as to less favourable treatment and on racial grounds.  

47	Similarly so, but we shall not dwell on it, in relation to the one-line finding in relation to the “piccaninny” incident.  We have indicated that the Second Respondent did give an explanation in relation to this matter, which was not recited by the Tribunal, and, once again, that there are no reasons as to why the Tribunal came to the conclusion that it did, as to rejecting that explanation, and, indeed, rejecting his statement that he had never used that word in the office at all, or of the Appellant.  

48	We turn then to the other eight matters, and we shall deal with them very briefly.  The reason we do so, in the light of the fact that, as we have indicated, we will be allowing this appeal, is to emphasise to the Tribunal which will be re-hearing this matter, the need, in the light of Anya, to make findings in relation to each of the allegations.  

49	The first of the eight is what we have called the “desk” matter.  In paragraph 21 of the Decision, the following is set out:
“The second matter which leads us to the above conclusions relates to the incident surrounding the Applicant’s desk.  Mr Leverson’s evidence is that he closed the desk drawer with his toe in order to avoid embarrassment to the Applicant who may have thought that he was looking into the drawer.  This explanation is in itself bizarre.  If the Applicant felt any embarrassment or for any other reason wished to close the drawer then she would have done so herself.  However, the explanation given elsewhere is that he used his knee and when questioned by the Tribunal he said that his reason for closing the drawer was just an automatic reaction done without thought. His evidence, certainly on this point, lacked clarity and frankness in our view.  We think that he is concealing the truth which lies in the evidence of the Applicant in her description of this incident.”

To the outside reader, and we daresay to the reader of this judgment, that makes virtually no sense at all.  We add to it paragraph 28 in which the Tribunal come back to the incident to say:
“For reasons given earlier we are satisfied that the Applicant’s version regarding the incident to her desk is correct and that Mr Leverson’s version is incorrect.”

50	What would have been required, in our judgment, would have been a recital, in brief form, of the rival versions.  Then an indication as to which of those versions was preferable and why, and thus the finding of the primary facts.  In fact, the incident appears to be one in which the Second Respondent went over to speak to the Applicant, while she was sitting at her desk, and both he and she agree that he kicked the drawer closed, with his foot.  The reference in the Tribunal’s Decision is to a hearsay statement by a Miss Donnelly that she recalled him saying to her that he had shut it with his knee.  But this was not an issue as between the two, the Applicant and the Second Respondent at all, and we find it difficult to see how the hearsay statement of Miss Donnelly could have been used as what has been loosely called a “tie-break” before us today.  The question was not whether he closed it with his foot or with his knee, but as to whether he closed it in an unpleasant way or not.  He explained that he closed it in order not to see what was inside, and thus breach confidentiality, and she indicated that he brusquely closed it and she felt upset by his doing so.  That was the issue, so far as it was of any particular significance at all.  

51	There is no recital of those two different versions, and no choice between the two, except on the basis which we have indicated, but had there been a proper setting-out of the rival facts and a proper finding, as we have indicated, then there would still have been the necessity to move on and conclude whether such incidents as were found to have occurred amounted to less favourable treatment.  We have no idea whether this kind of incident may well have occurred on other occasions, with other employees, and, even if it was less favourable treatment, there would need to be a conclusion as to whether that was on racial grounds.  

52	The Tribunal recites what in fact is the case, namely that this Applicant was the only black employee in the department.  In paragraph 31 of the Decision, in relation to what we shall refer to briefly in a moment as the “garage” incident, the Tribunal stated as follows:
“Thereafter the harassment continued.  The Applicant complained of Mr Leverson making jokes about her garage security which we accept.  Both incidents …..”
 [that is the “garage” incident and the “doctor” incident, to which we shall also refer]
“we infer were related to the Applicant’s colour.  She is black.  Mr Leverson is white.  No explanation has been given other than a denial.”

It appears to us that that is incomprehensible and inadequate as an explanation as to why this - certainly it is not in any event related to the desk drawer incident, but assuming that it is to be so cross-referred by implication - amounted to a case of less favourable treatment on grounds of race.  

53	We turn then to the second of the eight incidents, the “doctor” incident.  In paragraph 30 of the Tribunal’s Decision, the following is set out:
“At about this time the Applicant was visiting her doctor.  This we accept from the Applicant which is supported by her diary and records Mr Leverson again feigning a heart attack.”

Again, to the uninitiated, who has not done the work which we were assisted to do by having Skeleton Arguments and all the underlying documents, this paragraph would make no sense at all.  In fact it is said to relate to a situation in which the Applicant had indicated, or told her fellow employees, that she had gone to doctor because of some kind of palpitations, and it is suggested, although denied by the Second Respondent and his witnesses, that the Second Respondent in some way made light of that.  No findings, comprehensible or otherwise, are made in relation to this event, either as to primary fact or as to the inferences to be drawn from it, that it was less favourable treatment on racial grounds.  Inevitably, over a period of years in which people are working together in the same office, ribbing and jokes and teasing take place; what is necessary to be found by a Tribunal is a finding of discrimination on racial grounds in accordance with the statute.  The same applies to the brief and unexplained reference to the “garage” incident, the entire reference to which, in page 31, we have quoted above.

54	The other incidents can be very shortly summarised.  The fourth incident is set out in paragraph 34, in a line and a half, relating to the allegation that the Second Respondent sang what he explained as being reggae tunes which he enjoyed, in a Jamaican accent.  That was said to be directed at her.  Also in paragraph 34 the fifth incident, or incidents, the fact that she was on occasion, according to the evidence, called “Shaun the sheep” by the Second Respondent; that, on her evidence, denied by the Second Respondent, again set out in paragraph 34, he used to stare at her.  Then, also in paragraph 34, the following, again, incomprehensible statement, is made by the Tribunal, incomprehensible unless it is cross-referred to any underlying documents or evidence:
“There [sic] a number of references to “bananas” and “animals” which we think were accurately regarded by the Applicant as being directed towards her by Mr Leverson.”

55	Finally, in paragraph 38 of the Decision there is the incident which led to the Applicant’s complaint in September 1999, eight months after the “nigger” incident, and we read it as follows:
“In September matters came to a head following references by Mr Leverson and others as to the applicant’s financial affairs.  How these matters came to the attention of Mr Leverson in our view is neither here or there.  There was opportunity for it to occur and we base our view that it did occur on her diary note and her oral testimony.”

It is wholly unclear whether the Tribunal is reaching a conclusion that that (wholly unparticularised and unexplained) matter too amounted to race discrimination, but it must be assumed that it did, because that, on the face of it, was the only matter which would have rendered the Originating Application within time.  Those then are the ten incidents, the first two of which carry apparent racial connotations and the latter eight do not, without further findings.  

56	We have asked ourselves whether, given the inadequacy of reasons, notwithstanding the discouragement by Sedley LJ in Anya, to comb through a patently deficient decision for signs of the missing element, to try to amplify these by argument in to an adequate set of reasons, we can salvage this Decision without sending it back.  What is there to be said on both sides of the argument?  First, the allegations which the Tribunal found proved against others than the Second Respondent.  On the face of the Decision, are they relevant?  We have already indicated our particular concern that there was no differentiation made, no rationalisation put forward by this Tribunal, as to what, if any, relevance there was in relation to these other incidents, or whether they were only to be regarded as directed against the First Respondent.  If the latter was the case, then it makes it even stranger that, as we indicated earlier in this Decision, when it comes to a conclusion as against the Second Respondent, in paragraph 48 of the Decision, none of them is referred to.  

57	Paragraphs 27, the “police sirens” incident does not relate to the Second Respondent, but is set out at considerably greater length than many of the allegations found proved against the Second Respondent.  The “Paula” incident, in paragraph 29, which is another incident only referred to in shorthand, again, has nothing to do with the Second Respondent.  It would appear, certainly on the findings of this Tribunal, that those matters should be disregarded in relation to the case against the Second Respondent, so far as attempting to analyse this Tribunal’s Decision is concerned.  

58	Secondly, the Tribunal placed some reliance, and, again, dealt at considerably greater length in relation to it than they did with regard to those matters which were, in fact, said to amount to specific causes of action against the Second Respondent, in relation to an incident in the corridor on an undated occasion, referred to in paragraph 20 of its Decision, which reads as follows:
“We come to the above views …. ”
[that is its views in relation to Mr Leverson’s not being entirely open or truthful]
“ on the following evidence.  We have considered the statement of Rosalind Donnelly dated 4 November 1999 found at page 135 of the Statement Bundle.  This statement was taken with care by investigating Police Officers giving the opportunity to Miss Donnelly to amend which is an aspect which has been basically confirmed by her in evidence before us.  In that statement Miss Donnelly records that she observed and heard Mr Leverson make references to a “big fat Moma” and “a monkey” to an individual who had recently returned from Barbados.  This is directly contrary to the evidence of Mr Leverson himself who sought to explain matters on the basis of saying or singing “going to Barbados”.  It is unlikely that he would have been reprimanded by his Chief Superintendent Russell for that whereas Miss Donnelly’s version would have attracted an immediate reprimand and quite rightly so.  This is exactly what did happen and we are of the view that the version given by Miss Donnelly is correct and that Mr Leverson (a) is capable of untruthfulness and not just inaccuracy, and (b) capable of overtly racist behaviour.”
The statement to which the Tribunal referred was not the only statement made by Miss Donnelly.  She also put in a witness statement which, at paragraph 26, reads as follows:
“Ken did tell me about one occasion when he was told off by Chief Inspector Russell for imitating a Jamaican woman in the corridor.  He did this to a lady in the office called Jean as she had been on holiday to the Caribbean.  I believe that at the time of the incident there was just Ken and Jean present.  Ken told me that he was horrified to think that what he had done may be seen as racist or offensive and he was upset about it.  He told me that he would be more careful in the future, and make sure that he did not do anything again which could be described as offensive.”

59	The ambiguity of the statement made to the investigating police officers as to whether Miss Donnelly was present on this occasion was, one would have thought, put beyond doubt by her witness statement, in which she makes it known that she was not, and that she was simply acting on the basis of what she had been told by a repentant Second Respondent.  But, quite understandably and correctly, there was cross-examination in this regard by Counsel acting on behalf of the Applicant, Mr Wignall, which is recorded in the Chairman’s Notes, some extracts of which have been provided to us, and they read as follows.  In relation to the police statement, Miss Donnelly replied:
“He told me this.
He was upset by being thought racist.  He said he had a conversation in the corridor regarding a holiday.  Then Russell called him in and said he was racist.  He was concerned.  No one else was around and he did not mean any offence.”

In those circumstances, it is strange, but it may be it was simply mis-recollection by the Chairman in paragraph 20 of his Decision, that there is only mention of the police statement; no mention of the further statement, and, in particular, no mention of the clarification given in oral evidence.  Once that had been remembered by this Tribunal, it is clear to us that the Tribunal would not have been able to make the statement that was made in paragraph 20 that there was conflict of evidence between Mr Leverson and Miss Donnelly, who was not in fact there.  

60	It is perfectly understandable that the Tribunal would have been entitled to reach the conclusion that Mr Leverson was thus capable of overtly racist behaviour, although they would have needed to have gone on to say that he then continued thereafter (because this, we understand, was some time in 1998) notwithstanding the warning by Superintendent Russell; but they would not have been able, in our judgment, to rely on this alleged conflict of evidence between Miss Donnelly and the Second Respondent, which they were apparently resolving in favour of Miss Donnelly, as showing the Second Respondent was capable of untruthfulness.  This matter would have had nothing whatever to do with disbelieving him; it could only have led, if anything at all, to a recording of the fact that Miss Donnelly did not remember the matter having been reported to her by him in quite the terms which he stated.  But this was, it seems, one of what was regarded by the Tribunal as the two tie-breakers, that is matters of independent dishonesty, in their view, by Mr Leverson, which was entitled to assist them in resolving the dispute against the Second Respondent, notwithstanding the evidence, for example, of the eye witnesses in relation to the alleged “nigger” incident, who included Miss Donnelly, whose evidence, or apparent evidence, they are here preferring.  

61	The third matter which might be said to be weighed in the balance by the Tribunal relates to Mr Malcolm Davies, to whom we have made reference.  Paragraph 35 of the Decision is the relevant paragraph, which reads as follows:
“The Applicant complained to Mr Malcolm Davies and met him on 8 January 1999.  Both have made a note of that meeting.  We have considered the evidence of both notes in the context of the essence of the Applicant’s personality.  She is a shy person reluctant to complain.  She told Mr Davies that she had a deep-rooted complaint that she did not want pursued yet asked him to do something about it.  He is a very experienced policeman and naturally considered what practical steps could he take without appropriate detail.  We conclude that the Applicant was overawed by the approach of Mr Davies.  We think that she did mention positively to Malcolm Davies when asked by him whether there were any racial overturns to the incident.  Why we ask should she not answer positively as she had said just that to Carl Coniki.  Mr Davies either did not hear or misunderstood what was being said.  After all it is not a pleasant matter to have to deal with such complaints and as he said he was trying to interpret, paraphrase, and make sense of the situation where the Applicant was unburdening herself.”

62	The evidence of Mr Davies, according to his diary entry in this regard (we have already referred to the further note that he made in relation to inviting the Applicant to come back if she wished to make any further complaints) is as follows:
“I asked her if she felt that there was any racial overtone/prejudice in the behaviour of Mr Leverson and she replied that none had been taken or displayed.”

The Applicant’s evidence in relation to this incident was as follows:
“I think that Malcolm Davies asked me if any of the problems that I had been experiencing from Ken were of a racial tone.  I told him yes but again I did not think that I was able to go into detail.  The phrase ‘racial tone’ is not a phrase that I am familiar with.”

Therefore, the choice that the Tribunal had to make was between Mr Davies saying that there was a positive statement by the Applicant that there was no racial overtone to the Second Respondent’s behaviour and, on the other hand, the Applicant’s recollection that she thought that he asked her and that she then said it again.  

63	The way in which the Tribunal resolved this dispute between Mr Davies and the Appellant was by reference to a Carl Connikie, which the Tribunal spell “Coniki” but in fact appears to have been spelt “Connikie”.  He gave evidence, which the Tribunal had categorised as most impressive.  In paragraph 32 of the Decision, his evidence was that, in April or May 1998, the Applicant had approached him for advice, in his capacity as the Unison representative regarding harassment she was suffering in work.  He said that, although he could not remember the details of the complaint she wished to make, he believed it involved a dispute with a female colleague.  He recalled that the Applicant told him that she was being ostracised by the rest of the office because of this dispute; at no time did she mention harassment by a man, or Ken Leverson’s name.  That is recited by the Tribunal in paragraph 32, and that evidence is accepted, namely that the harassment related to a dispute with a female.  It may have been a reference to the incident with the police sirens, to which we have referred earlier.  

64	In those circumstances, it seems to us difficult to understand why the Tribunal should have said that the fact that she had just made a complaint to Carl Connikie (and that was not “just”, it was nine months earlier) should be relevant in their conclusions that she said, contrary to Mr Davies’ evidence, that Mr Leverson was harassing her on racial grounds, when, on the evidence which the Tribunal accepted, not only had there been no specific mention, it would seem, on racial grounds, to Mr Connikie, but it was not even addressed to the question of harassment by the Second Respondent, or indeed, a man, at all.  

65	Once again, just as there was a reluctance by the Tribunal to set out in full its findings in relation to the “nigger” incident in paragraph 37, we are left with a circumlocution in paragraph  35: 
“We think that she did mention positively to Malcolm Davies”
That is not a clear statement to us, but it certainly does not involve, on the face of it, a specific finding which, otherwise, would have needed to have been made, that the Applicant did make a positive complaint of race discrimination to Mr Davies.  When taken together with the fact that that was 8 January, and the “nigger” incident occurred four days later, if anything is to be drawn from the whole incident on 8 January in relation to Mr Davies, it would appear to be favourable to the Second Respondent, rather than hostile to him, and, therefore, that would not be a way, certainly, of salvaging the conclusions of the Tribunal.  

66	The only matter, on the face of it, in the Tribunal, and it is a very important matter which will no doubt be the subject of considerable consideration by the Tribunal on any         re-hearing, was her diary, which, although challenged by the First and Second Respondents as to its accuracy, remained, so far as the Tribunal is concerned, an unchallenged source of corroboration, or, at any rate, self-corroboration for the Applicant.  

67	On the other hand, there fell to be considered the evidence of the considerable number of witnesses, who were said to have been eye witnesses by the Applicant in relation not only to the “nigger” incident, but a number of other matters, and who not only did not support the Applicant, but positively rebutted her, and we have already indicated the inadequate way in which the Tribunal set about, if it did set about, rejecting their evidence on some blanket basis.  

68	In those circumstances, we are entirely satisfied that this is a Decision which cannot stand, not by virtue of perversity, although that might have been the subject of submissions, had it been necessary, but simply by virtue of the fact that this very difficult exercise, which Employment Tribunals are expected to carry out, and as to which we as an Appeal Tribunal have every sympathy with them in the difficulty they face, was not carried out properly or in accordance with the correct legal approach.  

69	A new Tribunal must address each of the incidents alleged to amount to discrimination, must set out, in brief form, the rival accounts - insofar as supported by outside evidence, that would be, no doubt taken into account - and then the primary facts found and inferences, where necessary, in order to establish that the event occurred; that it amounted to less favourable treatment; and that it amounted to less favourable treatment on racial grounds.  

70	Of course the Tribunal will, as it must, look to objective outside matters to see if any of those can throw light on which of the two sides here is lying, because, sadly, in relation to, at any rate, the “nigger” incident, that is the only conclusion that it can reach.  In relation to many of these incidents, it may be that they occurred, but are not capable of amounting, or on the facts, do not amount to discrimination.  That will be a matter for the Tribunal to conclude, but in relation to the “nigger” incident, it would appear impossible that, if it did occur, it did not amount to discrimination and the issue at this Tribunal is going to have to be primarily, we suspect, by reference to that incident alone, whether race discrimination is proved against the Second Respondent.  

71	In those circumstances, we allow this appeal and remit it to a fresh Tribunal, and we thank both Counsel, but, in particular, Mr Kibling, who both saved considerable time by the sensible approach which, no doubt, with the understanding and instruction of his client, he was able to take, and for his own efforts on her behalf, which were, we record, given pro bono, and not just pro bono in London, but in that he travelled at some expense in order to do so.