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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Devani v. Nottingham City Council & Ors [2003] UKEAT 827_01_1401 (14 January 2003) URL: http://www.bailii.org/uk/cases/UKEAT/2003/827_01_1401.html Cite as: [2003] UKEAT 827_1_1401, [2003] UKEAT 827_01_1401

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APPEARANCES

 

For the Appellant	MR OLIVER SEGAL (of Counsel) Instructed By: UNISON 1 Mabledon Place London WC1H 9AJ
For the Respondents	MS SUZANNE McKIE (of Counsel) Instructed By: Nottingham City Council Legal Services Dept The Guildhall South Sherwood Street Nottingham NG1 4BT


 


MR JUSTICE WALL:

1. In this appeal, Ms Sadhana Devani (the Appellant) appeals against the majority decision of the Employment Tribunal held at Nottingham on what appears to have been sixteen working days spread over thirteen months between 29 February 2000 and 3 April 2001. The majority decision of the Tribunal was, firstly, that the Appellant's application for relief by reason of being victimised and racially discriminated against was dismissed. Secondly, again by a majority, the Tribunal dismissed the Appellant's claim that she had been unfairly dismissed by the first named Respondent, the Nottingham City Council (Nottingham).
2. The Chairman, who was in the minority, would have made a finding of race discrimination by reason of victimisation, and would have found that the Appellant was unfairly dismissed.
3. The principal burden of the complaint made by Mr Oliver Segal on the Appellant's behalf is founded on the well known decisions of the Court of Appeal in Meek v City of Birmingham District Council [1987] IRLR 250 and Flannery & anor. v Halifax Estate Agencies Ltd [2000] 1 All ER 373. His essential complaint is that the reasons given by the minority are so defective that it is quite impossible for the Appellant to know why the majority of the members reached the decisions they did, and thus why she lost. He complains that critical allegations and whole swathes of the evidence are not referred to in the decision, or at least in the reasoning of the majority, at all.
4. At the conclusion of the argument on this appeal, we took the unusual step, having conferred amongst ourselves, of announcing that the appeal would be allowed with reasons to follow. We took this course because the inevitable outcome of our decision is that the matter will have to be re-heard by a fresh Tribunal. Given the time-table of the case to date, we regard that as particularly unfortunate.
5. There were before the Tribunal complaints based on two forms IT1. The first, alleging direct race discrimination and victimisation is dated 17 April 1988. The second, alleging unfair dismissal and race discrimination is dated 16 March 1999. The Appellant was dismissed on 22 December 1998. By the time the matter is re-listed before a different Tribunal, therefore, substantially more than four years will have passed from the date of the Appellant's dismissal, and approximately five years will have elapsed from the date of the filing of the first form IT1.
6. Although the documentation necessary for the presentation of this appeal is limited, the case is plainly complex. It took some sixteen days before the first Tribunal. The case thus illustrates the evils which flow from inadequate and defective reasons being given for a Tribunal decision. The matter will have to be re-heard at substantial cost of the parties, both emotional and financial.

The Facts

7. In view of the fact that the Appellant's two applications will have to be re-heard, we propose to set out the facts as shortly as is consistent with our duty to ensure that our reasoning for allowing the appeals is clear.
8. The Appellant is of Asian origin. She was a social worker employed by Nottingham. She had begun work as a social work assistant in 1991, and having obtained professional qualifications, she began working for Nottingham as a social worker in early 1997. On 26 January 1998, however, she was suspended on full pay, subject to a disciplinary investigation. Following that investigation and a disciplinary hearing, she was summarily dismissed on 22 December 1998, the grounds given being "gross misconduct".
9. As we stated in paragraph 5, the Appellant made two applications to the Employment Tribunal. The first, dated 17 April 1998 and filed on 23 April 1998 claimed that her suspension had been an act of discrimination on the grounds of race, and constituted victimisation. In the first form IT1, the Appellant made it clear that she regarded the complaints against her as "complete untruths, without foundation and based on inappropriate and discriminatory management practices". She asserted that the panel members in suspending her failed to take into account two particular matters:- (1) that where similar work concerns had been made in relation to white workers in the team, management had not investigated / suspended or initiated disciplinary procedures against those white workers; and (2) that the Appellant had already expressed concern about the management of the Appellant by Ms O'Brien (the Second Respondent) prior to Ms O'Brien making a complaint about the Appellant's work performance. The Appellant complained that Ms O'Brien was victimising her.
10. In the second form IT1, the Appellant made it clear that she put in issue much of the evidence relied upon by Nottingham in answer to her first complaint, and once again repeated her complaint that aspects of her working practices, including caseload management and case running records were no less adequate than those of other staff who still worked within the department, whereas the Appellant alone had been dismissed.
11. Nottingham's form IT3 in answer to the first complaint asserted that the Appellant's suspension related to "serious managerial concerns relating to your practice as a social worker and is without prejudice to the outcome of the investigation into the concerns". Nottingham denied that the Appellant had been treated "differently to and/or less favourably than white workers" and also denied that she was being victimised by Ms O'Brien. Nottingham asserted that in suspending the Appellant it had treated her no differently than any other employee would have been treated in the same or similar circumstances. Discrimination and victimisation were, accordingly, denied. Similar battle lines were drawn up in relation to the second Originating Application. Nottingham asserted that the Appellant was dismissed for gross misconduct, following a disciplinary hearing.
12. In its second Form IT3, Nottingham gave some details of the investigations it had carried out, and identified eleven allegations/concerns which were raised during the course of the investigation. These comprised: (1) supervision; (2) recording; (3) health issues; (4) timekeeping; (5) annual leave; (6) team relationships; (7) section 7 court report; (8) case work; (9) time off in lieu; (10) development work and (11) refusal to accept service manager's instructions.
13. The form ET3 stated that the Appellant was dismissed on the following grounds:-

(1) seriously inadequate record keeping with little evidence of contact with the children with whom you are working; (2) failure to manage workload; (3) resistance to learning and improving your practice; (4) failure to carry out professional responsibilities; (5) refusal to carry out contractual duties. These allegations and findings are not further particularised in the form ET3.

14. The Appellant provided voluntary further and better particulars of her complaints. She records that at a meeting on 13 November 1997, she told her direct Line Manager, Ms Pat O'Brien, that she believed their working relationship was no longer tenable and that the Appellant considered Ms O'Brien's treatment of the Appellant as racially motivated. She asserts that at that time Ms O'Brien did not suggest to her that she would be raising any formal complaint regarding the Appellant's employment. However, after that meeting, the Appellant went on sick and bereavement leave, and when she returned in early 1998 she learnt that Ms O'Brien, contrary to Nottingham's supervision policy, had sent a memorandum to her direct Line Manager making a complaint about the Appellant's work. The Appellant complains that Ms O'Brien had not previously raised with her the concerns which are outlined in the memorandum. That, the Appellant alleged, was an act of victimisation given that the Appellant had raised with Ms O'Brien her concerns that Ms O'Brien's treatment of her was racially motivated.
15. In the voluntary further and better particulars the Appellant identifies three comparators whom she asserts were treated more favourably than herself. The first was Ms JD who had been the allocated social worker to a particular family prior to the allocation being transferred to the Appellant. The Appellant records that she visited the family on eight occasions between 30 July 1997 and 18 November 1997. Ms JD was white. The family in question had complained about Ms JD who had been allocated the case on 13 April 1997. Ms JD said that she and a colleague had attempted to meet the family on four occasions over a period of fourteen weeks, but had only succeeded in meeting them once. No running records were available for the attempts that were said to have been made. One recording was made for when she met with the family. The complaint against Ms JD was discussed between her Service Manager and the Team Leader, Ms MacCormack, and no action was taken against Ms JD. The Appellant therefore asserted that Ms JD was treated in a more favourable manner than she was regarding this particular family.
16. The second comparator was one PM, a white male social worker, against whom various allegations were raised in 1996. The Appellant's case was that the allegations against PM were far more serious than those raised against herself, and yet PM was at that time given a final written warning and an opportunity to retain his employment and improve his social work skills as appropriate. No such option was given to the Appellant.
17. The third comparator was Ms CS. Ms CS was also criticised over the keeping of records, and the implications that might have for the child protection cases allocated to her. However, Ms CS was also given the opportunity to remain in employment with Nottingham, and was thus treated more favourably than the Appellant.
18. The Appellant also alleged that the disciplinary procedure and the internal appeal procedure carried out by Nottingham were flawed. She asserted that no serious attempt was made by the disciplining officer to consider the points which the Appellant had raised in her defence, and that the same was also true of the appeal panel. The Appellant had submitted to the panel a 25-page document detailing her concerns about the allegations which were raised against her, and explaining how she believed those allegations to be unsubstantiated.
19. The Appellant also complained that a number of allegations made against her had not been specifically raised with her in the past. She asserted that it was unfair to resurrect such complaints at this late stage. She argued that if the allegations made against her were so serious as to warrant dismissal, then they should have been put to her earlier, and that Nottingham's managers had accordingly been in breach of their obligations in not bringing them to her attention or in failing to invoke disciplinary action against her previously.

The first complaint

20. We have set out the pleadings in a little detail in order to demonstrate the nature of the issues which were before the Tribunal to decide. It must be remembered that there were two originating applications. The first complained that the Appellant's original suspension had been an act of discrimination on grounds of race and victimisation. Mr. Segal points out that whereas both the Appellant and the Respondent made written submissions to the Tribunal about this complaint, nowhere in the Decision of the Tribunal is the matter dealt with. All the Appellant knows is that her complaint has been dismissed. She has no idea why. Mr. Segal submits that this must amount to an error of law.

The alleged failure to maintain a running record

21. A principal issue which arose at the hearing related to the alleged failure by the Appellant to maintain a running record of the cases in which she was engaged. The Appellant's case was that she had made her own case notes or running records, but that the investigating officer, Ms Carol Angharad, had made a conscious decision not to read them during the investigation into the Appellant's alleged misconduct. In his closing submissions to the Tribunal, Mr Segal submitted that Ms Angharad had agreed in evidence both that she had not looked at the Appellant's running records and that as a result her report (which is not before us) was wrong in several important respects. As the report from Ms Angharad was a significant part of the evidence against the Appellant at the disciplinary hearing, it constituted the only written notice to the Appellant of the charges she was facing. It was, therefore, Mr. Segal submitted extremely important that the Tribunal should deal with this point.
22. One of the Appellant's principal complaints to the Tribunal in relation to the unfairness of her dismissal was that she was never asked to address most of the issues for which she was dismissed, either at the disciplinary hearing or during the investigation. We were provided with the closing submissions made on both sides. Mr Segal's submissions run to some 29 pages. Those of Ms Suzanne McKie for Nottingham ran to some 21 pages. Mr Segal criticised the investigation and submitted that Ms Angharad had to all attempts and purposes admitted that the investigation was fatally flawed. Ms Angharad had failed to examine the Appellant's copy running records; she had failed to ask the Appellant any questions, or to provide the Appellant with any of the documents about a number of the matters which were put to her in the disciplinary hearing.
23. Much time was spent at the Tribunal in going through the copy running records. Nottingham had taken the view that it would not ask for, could not verify and would not examine the Appellant's running records unless the originals could be located on the material file. It was, however, accepted by Nottingham's witnesses that had they had the copy running records available, the conclusions they had in fact reached about the Appellant's performance would have been shown to have been wrong. Mr Segal cites a number of passages in the evidence in which various passages from the Appellant's records were put to Nottingham's witnesses, who agreed that had they examined them they would have reached different conclusions.
24. Mr Segal also complained that the Appellant had not been sent a detailed letter setting out the "charges" which the Appellant was to face. Indeed, he submitted that the Appellant had received no letter at all. Mr Segal made a number of criticisms of the investigation and the pre-disciplinary hearing procedure. So far as grounds for dismissal were concerned, he pointed out that whilst the dismissal was grounded on the Appellant's failure to make proper efforts to visit and protect children on her case load, there was not one single supervision note reflecting the slightest concern in this regard during the entire material period. Once again, he gives a number of examples from the papers supporting his submission that Nottingham's knew about the Appellant's alleged failings, and that their knowledge either did not give them any real cause for concern or did not cause them to take any action..
25. In the course of his written submissions to the Tribunal, Mr Segal makes a number of detailed complaints about Nottingham's conduct, including the fact that Nottingham's supervision process appeared to have failed to identify any cause for concern about the Appellant's competence until 31 November 1997. He also points to Nottingham's failure adequately to supervise the Appellant during her first placement as a qualified social worker. He made detailed criticisms of Nottingham's case on the issue of recording and other aspects. He submitted forcefully that there were no reasonable grounds following a reasonable investigation for any suggestion that the Appellant had been guilty of gross misconduct. He then dealt with the question of the Appellant's suspension and the comparators in relation to the claim for discrimination. He submitted that the Tribunal was unlikely ever to have seen such persuasive comparators as those available in the instant case.
26. As we have already stated, Nottingham also put in a lengthy written submission to the Tribunal running to some 21 pages. That document, once again, is a detailed exposition of Nottingham's case. It deals carefully with the allegations made against the Appellant, and the Appellant's criticism of them. There is a detailed analysis of a number of the cases being carried by the Appellant. It also deals with the comparators relied upon by the Appellant.
27. Mr. Segal's complaint is that none of the important issues of fact which we have summarised from the submissions of the parties was addressed by the majority, either properly or in many cases, at all. We will, of course, later in this judgment look at the reasons put forward for the majority. We are, however, of the clear opinion that Mr. Segal's submission is well founded; indeed, it is self evident from the reasons themselves.
28. Before us, Mr Segal accepted, as indeed he must, that after a hearing lasting a substantial number of days, the Tribunal must, inevitably, present a reasoned "overview" of the case. They are plainly not obliged to set out in their decision their findings in respect to every aspect of what they describe as "the detail". Mr Segal accepts that Tribunal decisions are not to be subjected to the detailed analysis to which Donaldson LJ (as he then was) referred in UCATT v Brain [1985] IRLR 225 at 227, but submitted equally that "no more is it acceptable to comb through a patently deficient decision for signs of the missing elements": - see Anya v University of Oxford [2001] IRLR 377, para 26 per Sedley LJ.
29. Mr Segal criticises the majority reasons of the Tribunal in three respects. Firstly, he submits that they baldly states conclusion, the reasons for which cannot be identified; secondly they make no findings on and indeed omit all reference to perhaps the most important part of the Appellant's case, namely the alleged unfavourable treatment of the Appellant by reference to the three-named comparators; and thirdly in respect of the first claim to discrimination (in relation to the decision to suspend) they do not even mention it, let alone make any express findings about that claim.

The Reasons of the Majority

30. The extended reasons run to 45 paragraphs over 12 pages. A flavour of the Tribunal's approach is given in the first eight paragraphs:

"Extended Reasons

1 The applicant claims that she was unfairly dismissed and that she was subject to discrimination by reason of her race.

2 In coming to our conclusion in hearing this case we have heard from a large number of witnesses stretching over now sixteen days. We have read the documents and the witness statements.

3 This decision was reached after two days of retirement. It is a decision which is not the decision of us all but contains a dissent. The dissent is not on the law but on the facts.

4 It is important for anyone reviewing our decision, and here we refer to the Council and also to the applicant, is to understand that in coming to our conclusion we do not just read statements. We judge witnesses when they are in the witness box and sometimes when they are in the room listening to others evidence. That is of significance in this case because we have long and detailed notes of the disciplinary hearing. But notes and statements whilst important are not as important as seeing and hearing the witnesses being tested by skilled Counsel.

5 This case has taken a very long time.

All three of us were aware that this case involved the end of a person's professional career. It is an important issue. We were not, for that reason, prepared to cut corners.

We were puzzled at the beginning as to why Mr Segal, who has a reputation for concisiveness and a focused argument was, in fact, spending a great deal of time on the detail. He did not just make a broad brush attack upon respondent's witnesses. His was a detailed examination at length (and against sometimes the obvious feel of the Tribunal hearing the evidence). It became apparent to us what the case was about the more Mr Segal cross-examined. It was a case in which the 'devil' was in the detail. We had to look at the detail.

6 However the difficulty in looking at the detail is that you sometimes miss, as Miss McKie would say, the overview of the case.

So having gone into the detail we now come back and give our overview of the case.

7 We are not going in, in this decision, the painstaking detail that Mr Segal went into. That is no disrespect to him. We have gone through, in fine detail, over two days, the points raised by him in drawing our conclusions. We will refer to those factors which we think are relevant in coming to conclusions.

8 Both Miss McKie and Mr Segal and their supporting solicitors have done an enormous amount of work in this case. Both sides, although they may be unhappy with the results should be grateful for that. This is one of those cases in which the matter has been properly presented and properly argued. There has not been a stone unturned. We are grateful to both sides for the way they have presented the case. After sixteen days gratitude is perhaps not the usual emotion, but we are genuinely grateful."

31. The Tribunal then sets out the facts between paragraphs 9 and 43. In paragraphs 11 to 13 the Tribunal makes a number of general observations about the pressures on social workers and the need to keep current records. In paragraph 14 it records what may be a finding in these terms:-

"14 The applicant when she was with Ms Whitehead's team was starting as a social worker who was clearly regarded as a person who had substantial experience in the job. All three of us wonder whether that judgement was somewhat premature. It may be that what now happened can be explained by lack of experience and lack of the professional 'on site' training that she could have expected in normal circumstances, but because of her earlier experience was not given. …..."

In paragraph 20 the Tribunal records:-

"20 The applicant during the late summer and autumn of 1997 obviously had substantial problems in managing the workload she had (all three of us agree with that). For her to suggest there were no problems would be wrong (all three of us agree that)."

32. The Tribunal then turns to the events of November 1997. It deals with the matter in this way:-

"In November 1997 she met with her manager, Miss O'Brien, who set out in substantial detail her concerns. It is clear that the applicant resented those criticisms, which on our examinations of days of evidence was not justified.

The applicant in her evidence told us that it was at this meeting on 13 November 1997 that she raised an issue which she said was in her mind that this criticism of her work was based upon her race and that she was being a victim of race discrimination. Her statement details that allegation. Miss O'Brien says that did not take place. We were asked on the facts to decide between the two.

21 We do not believe that at the stage in November 1997 the issue of race discrimination was directly raised. In short we believe Miss O'Brien in relation to the conversation. However, the dissenter takes the view that given this applicant's history and the fact that she was Asian and involved in black social worker's affairs it stood to reason that any social work manager of the experience of Miss O'Brien would be wary.

22 The applicant was deeply offended at the criticism. She felt they were unjustified. The principal criticisms made against her was that she was simply not managing her workload and that her note taking left much to be desired and that her ability to write reports was causing problems. (These details are again dealt with in the papers). Again, principally, what matters were raised are not disputed. The actual accuracy of the matters complained of are in dispute."

33. The Tribunal then records the Appellant being away on sick leave between 24 November 1997 and the New Year 1998. It was, the Tribunal records, during that period of absence in late November that Ms O'Brien met with her Manager, Mr Hanson and expressed her concern. The Tribunal appears, in paragraph 24, to accept that Nottingham had a duty to investigate in the Appellant's absence.
34. In paragraph 25 of its reasons the Tribunal records the Appellant's suspension and her complaint that she had not been properly trained or supervised. Mrs MacCormack, whom it was suggested should supervise her henceforth, herself subsequently went on sick leave and was not anticipated to be in post following the change-over from the County Council to the City Council. The Tribunal records that the Appellant reacted to this fact and comments that she was justified in so doing.
35. The Tribunal then refers to a "hiatus" (paragraph 26) and records that "it is what then happened that causes the disagreement between the chairman and the two members". The Appellant had made a formal complaint of discrimination and victimisation. She applied to the Tribunal. The three members agreed that if the application to the Tribunal affected Nottingham's judgment adversely to the Appellant's disadvantage, or if Nottingham "treated the Appellant differently to her disadvantage then she has been the subject of discrimination / victimisation".
36. The Tribunal was unanimous in finding that all the members of the Appellant's department were fully aware of the application to the Tribunal and had little doubt that those in the department who were in receipt of the application resented it. The Tribunal found that in the same way as the Appellant resented criticism of herself, her managers resented the career damaging criticism that they had been discriminating against the Appellant by reason of her race.
37. In paragraph 30 of the reasons, the Tribunal records that it was on the issue of the investigations and hearings that the Tribunal split. The views of the majority are set out in paragraphs 31 to 43 of the decision. The majority expresses its views in very general terms. There is no reasoning given to support their conclusions, and no analysis of the underlying facts, many of which, of course, were in dispute. A flavour is given by paragraph 31 of the reasons, which reads as follows:-

"31 The majority find that the investigation which would have been made largely under the shadow of the Employment Tribunal application was done fairly and thoroughly. We have tested the witnesses. We have listened carefully to counsel's arguments and considered the pages of documentation. There is no way that we would say that the case had been improperly or unreasonably investigated."

38. In paragraph 32 the majority records the conclusion of the investigation as being that the Appellant had been "guilty of professional misconduct in the way she conducted herself in the exercise of her duties over a relatively short period in the previous year". It concludes that the case was properly and fairly heard: it states in paragraph 33 that the decision was "carefully phrased" and had been reached after a long time and much evidence which the majority recorded they had read. It records, in paragraph 34, that the allegations against the Appellant were so serious that she had to be dismissed. It refers to the fact of the internal appeal and the fact that the appeal was dismissed. It refers to the length of time the case had taken to get to the Tribunal which it described as "unfortunate" but not such as to disadvantage either party. It concludes that the investigation was thorough and that it was "understandable in all the circumstances that the investigator did not wish to look at the Appellant's copies of the notes she had submitted, she said, to the typist". In paragraph 39 the majority say:

"39 We take the view, standing back and looking at the matter, having heard the detail, that the applicant was justifiably criticised for her failure in social working. Failures that simply should not have happened. That is our conclusion upon the facts."

39. On the disciplinary hearing the majority took the view that the Appellant "was fairly dealt with in a most thorough and unpartisan way by the disciplining officer". They point to the fact that "some of the original complaints were dismissed where the evidence did not fulfil the standard that was being applied by the disciplining officer".
40. In paragraph 41 of the reasons, it is recorded that:

"41 The majority hold that there was clear evidence to establish the complaints upon which the applicant was dismissed."

On the issues of unfair dismissal and race discrimination and victimisation, the majority's conclusions are as follows:-

"42 Unfair dismissal. The majority hold that this matter was reasonably investigated. The matter was procedurally properly heard by the respondents. The conclusion, after a proper investigation, was one that was reasonable. In those circumstances we dismiss the applicant's claim that she has been unfairly dismissed. The respondents have established that the reason for the dismissal was the applicant's misconduct."

43 As to race discrimination and victimisation. There is not a hint of any discriminatory behaviour. Was this a case in which the applicant was treated differently because of her allegation of discrimination, to her disadvantage? We do not think so. We have a very substantial experience both in local government and in one case in national government as well. Both of us have seen, in practical terms, similar investigations. The complaints were properly and thoroughly investigated. Again the problem we face and confront is that there is undoubtedly an adversarial flavour to the way the investigation and the disciplinary hearing took. The investigator appeared almost to be collecting evidence for the prosecution. The judicial process and the disciplinary hearing was adversarial. Is that something that occurred because the applicant had made an application to the Tribunal? We have considered that and come further to the conclusion – No. It follows therefore that the applicant's application under the race discrimination legislation fails and is dismissed."

41. We think it appropriate to set out the reasoning of the Chairman, who was in the minority, in full – not necessarily because he was correct, but because, in stark contrast to the majority, his reasoning does explain the conclusions which he reached,:-

"44 The minority, the Chairman, takes this view and he puts it in this way:

(a) As far as I can see in terms of peoples' professional reputations none of those individuals named in the Originating Application are in any way guilty of direct race discrimination. I make that quite clear. Having judged the witnesses I do not believe the three that I saw who are individual respondents in this case have any business to be listed as respondents. There simply was no evidence against them.

(b) However, what does concern me is this; the Council in the past has always taken a relatively lenient course in cases of this sort. We looked at the comparators who included one from the ethnic minorities and the way those disciplinary matters were progressed. It is clear, in my mind, that a softer approach was taken. It causes me to worryingly ask 'why?'

(c) I remain to this day puzzled why the investigator when being offered the notes of the applicant's work which the applicant had sent into typing were not produced and not accepted and studied for what they were. We know that in fact the notes did go into typing but had got lost; there was nothing deliberate – (we know that after the event). This was a worrisome attitude of mind by the investigator. Why was the investigator taking a hard line upon the applicant?

(d) Going on now to the actual detail that the notes would have shown. The notes would have shown in detail that clearly which was not believed at the disciplinary hearing, that the applicant was making some attempt to do her job. An attempt itself which I think would not have resulted in a dismissal but some form of minor disciplinary action.

(e) I, unusually dissenting from the members, think this is a case in which the Council were fully aware that the applicant had made a serious allegation and the attitude thereafter was very simply, to adopt a phrase used in argument, 'you want to play hard ball with us, we'll play hard ball with you'. The reason there was this hard attitude by the Council, hard and unforgiving, was because the applicant had complained to the Tribunal. Similarly this Chairman does not believe that the applicant's complaint was made out of malice but was a complaint that she, even if misguided, genuinely believed was well-founded. So that I would make a finding of discrimination by reason of victimisation.

(f) Similarly on the unfair dismissal point I would say that the respondents set themselves high standards. However any investigator when presented with evidence that might assist the 'defence' should consider it. In this case if it had been considered the Director acting in good faith, knowing that it had been issued at a proper time, (that is at the beginning of the investigation), would have perhaps taken a very different view of the way the case went. For that basic procedural flaw I would also have found that the applicant was unfairly dismissed."

42. In our judgment, the criticisms made by Mr Segal of the majority's reasons are abundantly justified. Perhaps the most startling omissions in that reasoning are: (1) any attempt to explain the reasons for the bald conclusions reached, particularly where the underlying evidence was hotly in dispute; and (2) the total failure to address the question of victimisation and the comparators put forward by the Appellant.
43. These points are amply demonstrated by reference to the minority view. How, for example, where the allegation was that the Appellant failed to keep proper records, could the majority blandly submit that the investigation was fair, when the investigator had refused to examine the notes of the Appellant's work which the Appellant said she had sent in for typing? The Chairman records that the notes did indeed go in for typing, and there was, accordingly, no justification in the investigator not examining them. This was a crucial issue on the subject of fairness, and it is plainly inadequate, in our judgment, for the minority simply to assert that "it was understandable in all the circumstances that the investigator did not wish to look at the Appellant's copies of the notes she had submitted, she said, to the typist".
44. Ms McKie made a valiant attempt before us to justify the minority opinion, but was obliged to acknowledge that it was insufficient for the minority to reach important conclusions without supporting those conclusions with reasons, and by simply stating that that was what the Tribunal had found. That argument, as Ms McKie implicitly acknowledged, is essentially circular. The majority find that the Appellant was not unfairly dismissed because it believed the process of dismissing her was fair. Equally, the majority find that she was not racially discriminated against because it does not think she was.
45. We do not underestimate the difficulty of the Tribunal's task in digesting sixteen days of evidence, and a substantial amount of documentation. Nobody expects anything other than a reasoned résumé. But given the issues in this case, elementary findings of fact and basic analysis were both plainly of the utmost importance in explaining to the parties why the Tribunal had reached the decision it had. A simple assertion – in effect – that the majority accepted Nottingham's case and rejected that of the Appellant is manifestly inadequate.
46. The result, as we said at the beginning, is inevitably that the case must be remitted to a fresh Tribunal to be heard all over again. The appeal will, accordingly, be allowed on that basis.