Appeal No. UKEAT/0573/04/TM & UKEAT/0574/04/TM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 & 9 December 2004
Judgment delivered on 15 February 2005

Before
HIS HONOUR JUDGE MCMULLEN QC
MR B BEYNON
MR M WORTHINGTON

MR J FERNANDEZ 	APPELLANT

OFFICE OF THE PARLIAMENTARY COMMISSIONER FOR ADMINISTRATION AND HEALTH SERVICE COMMISSIONERS	
RESPONDENT

OFFICE OF THE PARLIAMENTARY COMMISSIONER FOR ADMINISTRATION AND HEALTH SERVICE COMMISSIONERS	
APPELLANT

MR J FERNANDEZ	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR ROBIN ALLEN QC
MR RAJEEV THACKER
(of Counsel)
Instructed by:
Messrs Russell Jones & Walker
Swinton House
324 Gray's In Road
London
WC1X 8DH	
For the Respondent	MR ADAM TOLLEY 
(of Counsel)
Instructed by:
The Treasury Solicitor (Employment Team)
Queen Anne’s Chambers
28 Broadway
London
SW1H 9JS	

SUMMARY

Race Discrimination

1. The employer’s appeal against the majority ET’s judgment upholding the Claimant’s unfair dismissal claim was dismissed.  The ET did not substitute its own judgment for that of the employer when it decided this procedurally fair dismissal was a sanction which no reasonable employer would have adopted.

2. The ET erred in law when it declined to follow binding precedent of the EAT and so misapplied the reverse burden of proof for sex and race discrimination cases.

3. Having made firm findings that the employer’s actions lacked reality and were absurd, it was perverse not to carry those findings across in its examination of the explanations given by the employer for its treatment of the Claimant.

4. The case was remitted to a fresh ET with a narrower remit to determine the sex and race discrimination claims in the light of: the direction of law, the findings on unfair dismissal being upheld, the abandonment of certain grounds of appeal and, on the EAT’s finding of an error, the EAT’s substitution of a finding.

5. The ET’s observations about the lack of proportionality in this case were accepted and a plea issued for conciliation to be considered by the parties. 

HIS HONOUR JUDGE McMULLEN QC

1.	This case is principally concerned with the reversal of the burden of proof in sex and race discrimination cases and secondarily with the band of reasonable response test for unfair dismissal on the ground of conduct.  This judgment represents the views of all three members.  We will refer to Mr Fernandez as the Claimant and the Respondent as OPCA.

Introduction

2.	There is a substantial measure of agreement in relation to the background facts of this case between Counsel, Mr Adam Tolley for OPCA and Mr Rajeev Thacker for the Claimant who both appeared at the Employment Tribunal.  Before he was excused from further attendance, Mr Robin Allen QC presented all arguments on behalf of the Claimant leaving his reply in the very capable hands of Mr Thacker.

The issues and our conclusions on appeal

3.	In order to simplify our exposition of the issues raised by both parties in these Appeals we will summarise them, together with our conclusions.
a.	The Claimant’s argument under the European Convention on Human Rights was not pursued, and it is unnecessary to say anything about it.
b.	There was no appeal by the Claimant against the unanimous finding that his dismissal was not procedurally unfair.
c.	The majority judgment that the dismissal was unfair on substantive grounds is upheld and OPCA’s appeal against it is dismissed.
d.	The Claimant does not appeal against the dismissal of his claims of victimisation under the Sex Discrimination Act 1975 and the Race Relations Act 1976.
e.	We resolve two factual issues raised on appeal in favour of OPCA.  Thus we reject the Claimant’s contentions that this case did not concern allegations of sexual harassment.  We reject the Claimant’s contention that the Tribunal, like OPCA, was not entitled to have regard to the Claimant’s lack of insight into his wrongdoing, characterised by his highly qualified approach to any apology to his victim.
f.	We uphold the Claimant’s submission that the Tribunal erred in its approach to the reverse burden of proof under both the statutes.
g.	We uphold the Claimant’s submission that the Tribunal’s judgment on discrimination was perverse.
h.	We uphold the Claimant’s contention that statistics which were unchallenged should have been mentioned by the Tribunal.  But we agree with OPCA’s submission that the statistics go nowhere, and that probably was the view of the Tribunal for it did not mention them, but it should have said so.
i.	The discrimination claims will be remitted to a freshly constituted Tribunal.
j.	This is a case which cries out for a conciliated or negotiated settlement.

“This simple set of facts”

4.	The Tribunal succinctly summarised the relevant facts in this case as follows:

“5.	This dispute arises out of the working relationship between the Applicant and a female colleague, Mrs Kate Thomas. Over a period of time, the Applicant behaved towards her in an over-familiar fashion. Eventually, in February 2001, she complained to her line manager. There were informal discussions. A few days later a fire alarm went off at Millbank Tower, the location of the Respondents' offices. The Applicant met Mrs Thomas in a lift lobby on the 11th floor. She did not wish him to be with her. Nonetheless, he remained in her presence for about four minutes. He then left but, as we will explain more fully, he was subsequently instructed to rejoin her and he spent another four minutes or so with her before they managed to leave the building. Shortly after these events, the Respondents initiated an investigation under their harassment and bullying policy. Some time later a decision was taken to proceed to disciplinary action, which culminated in a hearing at which the decision was taken to dismiss the Applicant on the ground that his conduct towards her had amounted to harassment and constituted gross misconduct. The charges found proved related to the period before 16 February.2001 and to the incident in the lift lobby. The Applicant's subsequent appeal was dismissed.

5.	In what appears to us to be a justified sense of disapproval, the Tribunal said this:

“6.	Out of this simple set of facts, the parties have conjured a very substantial piece of litigation. The Tribunal file is about a foot thick. On the Applicant's side, the case has been bedevilled for the greater part of its history (prior to Mr Thacker and his instructing solicitors being retained) by pedantry and legalism of a high order. For their part the Respondents have joined in the fray on every point of complaint (however fatuous), generating astonishing volumes of paper in the process. We have been surprised and alarmed by their liberality in expending public resources on the case, and have regretted the cost which must inevitably have resulted not only to the public purse but also to those who rely on their services. We detected among the decision maker who had been (or should have been) in control of this litigation no such regret. The bundle of documents runs to over 1,500 pages. We heard evidence from total of 12 witnesses, 10 on the Respondents' side. They saw fit to adduce live evidence from both members of the disciplinary panel and both members of the appeal panel. Two investigators were also called. At more than one point during the hearing it was suggested by the Tribunal that the parties might not have approached this matter with an appropriate sense of proportion. For the most part, these suggestions were met with polite puzzlement. We wondered what those responsible for creating the Employment Tribunals would have thought if they had been told that, 30 years on, their system; designed to achieve swift, economical, practical, accessible justice in workplace disputes, would be put to this kind of use.

6.	At the end of its 24 page judgment, the Tribunal gave the following plea to the parties:

“We would hope that the parties might now consider entering into a dialogue with one another with a view to achieving a dignified resolution of this destructive and deplorably wasteful dispute. The risks which both sides face (the Applicant in relation to contributory conduct, and the Respondents in relation to the Applicant's earning and pension prospects, to instance two) should be obvious. If no settlement is achieved, the Tribunal will list a remedies hearing in accordance with our decision above.

The legislation

7.	For convenience, the Tribunal focused on the provisions of the Race Relations Act 1976, but recognised that there are substantially parallel provisions in the Sex Discrimination Act 1975.  The 1976 Act outlaws discrimination as follows:

“1	Racial discrimination
(1)	A person discriminates against another in any circumstances relevant for the provisions of this Act if-
(a)	on racial grounds he treats that other less favourably than he treats or would treat other persons; or”

8.	The relevant comparison must be as follows:

“3(4)	A comparison of the case of a person of a particular racial group with that of a person not of that group under section 1(1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.”

9.	The particular form of discrimination relevant in these proceedings is covered by section 4:

“4(2)	It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against another-
(c)	by dismissing him, or subject him to any other detriment.”

10.	A reverse burden of proof is introduced by section 54A, in force at the time of the hearing, which provides as follows:

“54A.	(1) This section applies where a complaint is presented under section 54 and the complaint is that the respondent-
(2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent
(a) has committed such an act of discrimination or harassment against the complainant, or”

11.	As for unfair dismissal, it is not in dispute in this case that the reason for the Claimant’s dismissal was conduct which is a potentially fair reason under the Employment Rights Act 1996 section 98(1) and (2).  Thus, the question for the Tribunal was its fairness:

“98(4)	Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)-
	(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
	(b) shall be determined in accordance with equity and the substantial merits of the case.”

Application of the legislation
(a) Unlawful discrimination

12.	As far as the burden of proof is concerned, for the reasons set out below we will simply cite our judgment in Dattani v The Chief Constable of West Mercia Police UKEAT/0385/04 paragraph 25ff as follows:

The legal principles
25.	The correct approach to the new burden of proof in sex discrimination was set out in Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332 EAT, HH Judge Ansell and Members.  With one adjustment, that was followed in Chamberlin Solicitors v Emokpae [2004] IRLR 592 EAT which I decided with Members.  A further refinement was made in University of Huddersfield v Wolff [2004] IRLR 534 EAT, Burton P and Members.  A synthesis of all these cases was provided in Sinclair Roche & Temperley v Heard [2004] IRLR 763, Burton P and Members.  The latest formulation, following all of the above and holding them to be correctly decided, appears in Webster v Brunel University UKEAT/0730/04 EAT, Burton P and Members.  That judgment was delivered on 14 December 2004 and Counsel, not having have an opportunity to make submissions on it, we do not found our judgment expressly upon it.  In February 2005 we understand the Court of Appeal is to hear appeals against the judgments in Chamberlin, Webster and a further case relied on by Ms Gower, Igen Ltd v Wong UKEAT/0944/03 EAT which I decided with Members.  It is common ground in this case that authorities on the burden of proof in relation to sex discrimination can be read across to apply in the instant case of race discrimination.  

26.	Both Counsel rely on the judgment of the EAT, Elias J and Members in Law Society v Bahl [2003] IRLR 640 as approved by the Court of Appeal particularly at paragraph 100.  In Sinclair Roche & Temperley v Heard [2004] IL 763, the President said:
“6   It is apparent that, particularly given the reversal of the burden of proof, it is essential that, if the tribunal satisfies itself that there has been on the face, of it unfavourable treatment,, it has effectively only reached halfway; it must set out clearly its conclusions as to the nature and extent of such unfavourable treatment, and it must then fully and carefully consider, having thus identified the conduct which requires explaining, what the explanations of the employer were, and why, if such be the case, such explanations provide no answer..
The President also cited the judgment of Elias J in Law Society v Bahl [2004] IRLR 640@paragraph 100 (see below). Conversely, if an employer acts reasonably, the reason is likely to be non-discriminatory – see paragraph 99 of Elias J’s judgment.

27.	Both parties rely on the correct approach to the drawing of inferences set out by the Court of Appeal in Anya v University of Oxford [2001] IRLR 377 particularly paragraph 33.  It is also to be noted that in Wheeler v Durham [2001] All ER (D) 380 Pill J said at paragraph 40:
“I am unable to accept that, in all the circumstances where deviations from ordinary practice occur where there are differences of treatment which emerge in the selection process, the employer must invariably give an explanation and the tribunal must find it a satisfactory explanation if it is to fail to infer that the decision was reached in breach of the Act.  In my judgment there must be a nexus between the facts relied on and the discrimination complained of before such an explanation can be required.  Some conduct of employers will require specific explanation; other conduct or events can be dealt with by way of the general finding which the tribunal made.  It is a matter for analysing the facts of the particular case and is a question of fact and degree
The facts that a tribunal should examine are those relevant to the issues before it.”

28.	Ms Romney for the Respondent relies upon the judgment of the House of Lords in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 295.

29.	It is noted that in the guidance given in paragraph 25 in Barton there is no citation from Shamoon, although the authority is referred to in the judgment.  It is not cited in the judgment in University of Huddersfield nor in Sinclair Roche.  The insertion into the Sex Discrimination Act 1975 Section 63(a) of a reverse burden of proof with effect from 12 October 2001 was not the subject of any discussion in Shamoon as the hearing before the Industrial Tribunal in Northern Ireland took place prior to that.  In the light of the foregoing, and in the shadow of a forthcoming hearing before the Court of Appeal we do not propose to add further to the substance of the above judgments and will follow the law as set out in Sinclair Roche as follows:
 “10    The general structure required for a discrimination finding by an employment tribunal is now clear from the decisions of Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332, as supplemented by the decisions in University of Huddersfield v Wolff [2004] IRLR 534 EAT/0596/02, and Chamberlin Solicitors v Emokpae [2004] IRLR 592 EAT/0989/03 (at paragraphs 32 to 40). The tribunal must set out the relevant facts, draw its inferences if appropriate and then conclude that there is a prima facie case of unfavourable treatment by, reference to those facts (identifying it), and then look to the respondent for an explanation to rebut the prima facie case. The employment tribunal must plainly make quite clear what the unfavourable treatment is which is prima facie discriminatory, so that the respondent can I understand what it is that it has to explain. It then explains, if it can. Such explanations, if any, must be fully considered and: 

  (i) It may be either obviously or after analysis, that there is no explanation. 
  (ii) There may be an explanation which only confirms the existence of discrimination. 
  (iii) There may be a non-discriminatory explanation which redounds to its discredit - eg it always behaves this badly to everyone. 
  (iv) There may be a non-discriminatory explanation which is wholly admirable. 
     	But the employment tribunal must address the respondent's response. 
11      The nature of such addressing of the explanations is set in the context of the words of Peter Gibson LJ in Chapman v Simon [1994] IRLR 124 at paragraph 41, namely that in discrimination cases it is 'appropriate that ... [employment] tribunals should perform their duties with meticulous care'. In the EAT case of Port v Royal Mail and others EAT/0045/99 Holland J required 'an analytical recitation of such explanations as are advanced by the respondents for those [arguable] instances [of sexual discrimination]'. The nature of the requirement is made clear by the Court of Appeal in Anya v University of  Oxford [2001] IRLR 377. At 379 (paragraph 7) Sedley LJ cites Neil} LJ in King v Great Britain-China Centre [1991] IRLR 513 at 518: 

'In such circumstances the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds.' 
12     He continued in his own words at 380:
'Were racial grounds an effective cause of the difference in treatment? What explanation of the less favourable treatment is given by the respondent?  In answer to each of those questions the tribunal must make findings of primary fact, either on the basis of direct (or positive) evidence or by inference from circumstantial evidence.' 
13      And at 380 'The respondent has to respond to the introduction of those items. He may dispute some of them as factually incorrect. He may seek to introduce other evidence to negative any possible inferences of racial grounds eg non-racial explanations following his acts and decisions'. 
14      In Wolff, I said as follows: 
'26. [The tribunal] must therefore arrive at a conclusion that there is a prima facie case that the respondent has treated the applicant less favourably on the grounds of sex. Once it has done that, then it passes to consider the respondent's explanations; it must, if it has not already done so, make findings of fact, or draw inferences from findings of fact, for the purposes of concluding whether any of the explanations put forward by the respondent satisfies them, the burden being on the respondent to show that the less favourable treatment was not on the grounds of sex. ... 

31. ...The reasons ...would ordinarily then be set out as to why the tribunal rejects the explanations and justifications put forward by the employer and concludes that the burden of proof has thus not been satisfactorily complied with. and thus that the only answer is that which was prima facie already found to exist when it transferred the burden under s.63A [of the 1975 Act] ... 

34. ...We are satisfied that the failures by the tribunal to consider, set out and draw conclusions from the material facts related both to the establishment of the prima facie case, under s.63A, which was necessary even before the onus passed, and, even assuming it did correctly apply s.63A, to the consideration of the respondent's explanations after the passage of the onus.' 
15     Elias J sets out the position in The Law Society v Bahl [2003] IRLR 640; 
'100. ...Where the alleged discriminator acts unreasonably then a tribunal will want to know why he has acted in that way. If he gives a non-discriminatory explanation which the tribunal considers to be honestly given, then that is likely to be a full answer to any discrimination claim" It need not be, because it is possible that he is subconsciously influenced by unlawful discriminatory considerations. But again, there should be proper evidence from which such an inference can be drawn ... 

116. ...The failure [to construct a hypothetical comparator] ...may raise doubts as to whether the tribunal has properly considered all potentially relevant explanations when identifying whether or not unlawful discrimination exists. It may raise a concern that the tribunal has failed properly to consider the possible lawful non-discriminatory reasons for the conduct in issue.' 

16     It is apparent that, particularly given the reversal of the burden of proof, it is essential that, if the tribunal satisfies itself that there has been on the face of it unfavourable treatment, it has effectively only reached halfway; it must set out clearly its conclusions as to the nature and extent of such unfavourable treatment, and it must then fully and carefully consider, having thus identified the conduct which requires explaining, what the explanations of the employer were, and why, if such be the case, such explanations provide no answer.” 

30.	We will however, add a word about the practical handling of the transferred burden.  The burden will transfer when the Claimant makes a prima facie case from which the Tribunal could conclude the Respondent had discriminated, in the absence of an explanation from it.  The stage at which this consideration takes place is probably unique in legal proceedings.  In criminal proceedings, a submission of no case to answer can be made at the end of the prosecution case.  At that stage the defendant will have given no evidence.  An explanation may have been given by him or her in the course of an interview, or following charge, in either case under caution.  If in either case no comment was made, there will be no explanation by the defendant except for what might be deduced from cross examination of prosecution witnesses.  In civil proceedings, a half time submission can also be made but there the nature of any explanation which might affect the Claimant’s ability to prove all of the elements necessary for the breach alleged, will have been transparent from the statements of case and probably the exchange of evidence in advance.  In both those situations, therefore, the judge genuinely decides upon the submission in the absence of any account by the defendant.  In Employment Tribunals on the other hand, half time submissions are discouraged, particularly in the field of discrimination.  The Court of Appeal in Logan v Commissioners of Custom and Excise [2004] IRLR 63 approved the holding that “in discrimination cases, it will only be an exceptional or frivolous cases that it would be right to take such a course” referring to acceding to a half-time submission.  The Tribunal will have heard all of the evidence and closing submissions on behalf of the parties before making its decision on whether or not the Claimant has established a prima facie case.  It will of course listen to all of the evidence in the same fair way, but then as Ms Gower submits it performs a different function.  She contends that the Tribunal is required “to adopt a different mind set” and take a more challenging approach to the evidence of the Respondent.  Analysing purely the case made by the Claimant, and putting aside the explanations which it has already heard from the Respondent, it will make a decision on whether a prima facie case has been made out.  If it has, it will then consider the evidence of the Respondent including its explanations and will do so bearing in mind that it is for the Respondent to prove that it did not commit the act of discrimination.  The task of determining whether a prima facie case exists in the absence of an explanation by the Respondent is made clear by the statute, but is made difficult by the encouragement that such decision should not be made until all the evidence, and by implications submissions, have been heard.

(b) Unfair dismissal

13.	Turning to unfair dismissal, the Tribunal accurately summarised the application of the law as follows:

“14.	On the unfair dismissal claim we again remind ourselves that our function is to apply the clear language of the legislation, for which case-law is no substitute. That said, we bear in mind the guidance contained in case s such as British Home Stores -v- Burchell [1978] EAT and Iceland Frozen Foods Limited –v- Jones [1982] IRLR 439 EAT, both of which were recently confirmed by the Court of Appeal in Post Office –v- Foley; HSBC Bank –v- Madden [2000] IRLR 827. We also bear  in mind the important recent decision of the Court of Appeal in Sainsbury Supermarkets Ltd –v- Hitt [2003] IRLR 23, in which it was held (headnote, p 24 of the report) that:
“The range of reasonable responses test (or to put it another way the need to apply the objective standards of the reasonable employer) applies as much to the question of whether an investigation into suspected misconduct was reasonable in all the circumstances as it does to other procedural and substantive aspects of the decision to dismiss the person from his employment for a conduct reason.”

A Tribunal must not substitute its judgment for that of the employer.

The two factual disputes

14.	The Claimant contended that sexual harassment was a new point introduced on appeal.  This is unsustainable.  The Respondent has a bullying and harassment code.  It corresponds to the kind of procedure envisaged by the European Commission in Commission Recommendation 92/131/EEC which contains “a Code of Practice on measures to combat sexual harassment” as part of the Commission’s Code of Practice on protecting the dignity of women and men at work.  Sexual harassment is defined as “unwanted conduct of a sexual nature or other conduct based on sex affecting the dignity of women and men at work”.  It includes unwelcome physical, verbal and non-verbal conduct.  See Article 2.  It is plain to us from the Notice of Appeal, the schedule of alleged complaints, the decision of the appeal panel that “allegations against you relating to sexual harassment had been upheld,” and the cross-examination of Mr Stevens and Ms Charlton to which we have been taken in detail, that the form and substance of the complaint against the Claimant was sexual harassment.

15.	It is further contended by the Claimant that the Tribunal was not entitled to make the following finding:

“19.	…They [OPCA] were entitled to find that he demonstrated very little insight into the consequences for Mrs Thomas of his behaviour. “

16.	We have been taken in detail to the notes of evidence of the material put before the hearings at OPCA covering the evidence of Mr Stevens, Ms Charlton and the Claimant.  Even a superficial view of that evidence would entitle the Tribunal to make the finding above.

Unfair dismissal

17.	The majority judgment of the Tribunal is found in paragraph 19 which covers two pages, and the minority in paragraph 20 which covers 19 lines.  The Tribunal reminded itself that it was not for it to substitute its view for that of the Respondent and carefully eschewed doing so.  It also noted that OPCA was entitled to treat Mrs Thomas’s complaint seriously and to put its procedure into practice.  It was entitled to hold that the conduct of the Claimant was inappropriate.  It also noted the Claimant’s lack of insight (cited above), yet it nonetheless considered that dismissal was an unreasonable sanction.  It considered the explanation given by the decision makers.  It held that the reasoning was “not founded on reality or common sense” and “nothing less then absurd”.  Holding the Claimant was foolish and ill-judged, he ought not to have been at risk as to his career.  The Tribunal held that there was no basis for what it regarded as the crucial finding by OPCA that “to retain him in their employment would entail a risk to other members of the workforce”.  Since the relationship at work between the Claimant and Ms Thomas was unworkable; it would have been possible to transfer him.  The penalty of dismissal was “utterly disproportionate and plainly unfair”.

18.	On the other hand Mrs Siggs in the minority found that it was open to OPCA to take account of the Claimant’s failure to recognise his wrongdoing and that was a pointer towards his future conduct.

19.	OPCA contends that the Tribunal did substitute its own judgment instead of making an objective assessment.  It was inconsistent for the Tribunal to hold that there was no risk in retaining the Claimant and the Tribunal had undervalued the importance of the procedures.  The Tribunal did not consider that the Claimant had expressly rejected certain lesser sanctions.  On behalf of the Claimant it is contended the Tribunal made its judgment against an objective standard illustrated repeatedly in paragraph 19 by reference to what OPCA was “entitled to find”.  Given such findings as to OPCA’s evidence, the majority conclusion was, if not inevitable, then certainly open to it.

20.	In our judgment, the Claimant’s submissions are correct.  The use of the formula “entitled to find” demonstrates an objective assessment of OPCA’s treatment of the Claimant set against the standards of a reasonable employer.  With that in mind, and the Tribunal’s express direction against substitution of its own view, we cannot hold that the Tribunal while saying that, was doing the opposite.  That the Tribunal divided on this issue simply shows a difference of opinion on the facts, but there was sufficient material upon which the Tribunal could base its judgment and it has provided cogent reasoning for it.

The burden of proof

21.	The Tribunal began its approach to this issue by noting that there was no direct evidence to substantiate the Claimant’s claims, but that such would rarely be found.  That was correct.  It then went on to say as follows:

“It seems to us that, at least in the ordinary case, our approach to the new law should be along these lines. Where an actual comparator is relied upon and the comparison is valid (i.e. a “like for like” exercise), it will ordinarily be convenient to consider the less-favourable-treatment issue first (Shamoon). If the complainant proves less favourable treatment, the burden of proof will then shift to the respondent. But where the actual comparison proposed by a complainant is found to be invalid, or a complainant relies only on a hypothetical comparator, it seems to us that in many cases s54A is likely to make no practical difference. This is because, where the comparator is hypothetical comparator, it will generally be appropriate for the Tribunal to consider the less-favourable-treatment and reason-why issues together, or even in reverse order (Shamoon). In this event, s54A (2) will not be engaged and the Tribunal will look to the complainant to prove both elements of his case. This is not to place unreasonable demands upon him: as Lord Nicolls observed in Shamoon; if the complainant succeeds on the reason-why issue, he is not likely to encounter any difficulty in establishing less favourable treatment. There will, however, be some cases in which, even where no valid actual comparator is proposed, the burden of proof does shift. For example, the authorities recognise that, while unlawful discrimination cannot be inferred from unreasonable treatment alone (Zafar), such treatment coupled with an unsatisfactory explanation may provide material on which an inference can be based (Bahl).

22.	That approach presents an error.  The shift in the burden of proof was introduced precisely because of the difficulties inherent in discrimination cases in the Claimant proving the matters.  Further, Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 was decided without reference to the new burden of proof.  The Tribunal went on to consider the judgment of the EAT in Barton v Investec Henderson Crossthwaite Securities Limited [2003] IRLR 332 and declined to follow it on the grounds that it was inconsistent in the guidelines.  Paying further respect to the EAT, it recognised it was “respectfully departing from the Barton analysis”.  One of the reasons for doing so was that it held that in Nelson v Carrillion Services Limited [2003] IRLR 428 the Court of Appeal had held that in cases of indirect discrimination, the burden of proof changes were simply to codify the existing position.  The Tribunal held that observation was applicable to direct discrimination also.  But, this was contrary to the holding of the EAT in Chamberlin Solicitors v Emokpae [2004] ICR 1476 at paragraph 23, where I said this:

“Although Simon Brown LJ said in Nelson Carrillion Services Limited [2003] ICR 1256, 1266, para 26 that the effect of section 63A on the burden of proof was to “codified rather than alter the pre-existing position established by the case law”, that case concerned indirect discrimination and Simon Brown LJ did not say anything about direct discrimination. The Court of Appeal certainly had a copy of the judgment in Barton [2003] ICR 1205 before it gave judgment (this is made clear by the judgment of the Employment Appeal Tribunal in Pratt v Sanden International (Europe) Limited (unreported) 22 October 2003 para 19) no adverse comment was passed upon it.”

23.	It follows from the above citation from Chamberlin that when the Tribunal in our case held that “subsequent pronouncements…have called into question some of the guidance” in Barton and cited the first example as Nelson, that criticism cannot withstand the fact that the Court of Appeal had Barton and did not disapprove it.  Further, although it is true that later judgments of the EAT have refined (University of Huddersfield [2004] IRLR 534) and adjusted (Chamberlin) the reasoning in the guidance in Barton, it has been followed and applied most substantially in Sinclair Roche (above) and most recently in Webster (EAT/0730/04).
24.	This exegesis by the Tribunal may be correct.  But, Barton and the above decisions were all binding upon that the Tribunal and it was not open to it to depart from them.  This ground of appeal succeeds.

25.	In the light of that error, we cannot say that the judgment would have been the same.  That view is reinforced by what we say below about perversity.

Perversity

26.	The whole point about the shift in the burden of proof is to call for explanations from the Respondent which are to be evaluated critically in the knowledge that the Respondent must prove them.  Correct application of Barton ought to have yielded that the Claimant had put forward a prima facie case.  Given the majority’s findings relating to unfair dismissal, especially its findings that “the process lacked reality and was absurd; and that the sanction of dismissal was outside the band of reasonable responses, those findings were bound to have a very important effect upon the evaluative treatment by the Tribunal of OPCA’s explanations.  Poor treatment of an employee for the purposes of unfair dismissal does not necessarily have a bearing on the question of whether he or she was less favourably treated on a proscribed ground, for an employer is entitled to raise what Burton P memorably described as the “duff employer syndrome” in University of Huddersfield.  In our judgment, however, these extraordinarily firm findings about the evidence and explanations of OPCA, irrespective of the correctness of the Tribunal’s approach to the burden of proof, could not logically co-exist with a finding upholding OPCA’s explanations.  We uphold the ground of appeal that this judgment, even if correct on the burden of proof, was perverse.

The statistics

27.	It has not been disputed before us that statistics were placed before the Tribunal upon which OPCA made no challenge.

28.	The challenge on appeal is that the Tribunal failed to have regard to this evidence which it is contended established facts from which an adverse inference could be drawn.  This ground was not advanced in the Skeleton Argument lodged by Mr Thacker.  However, life was breathed into the ground of appeal in the oral argument of Mr Allen QC.  He submitted on authority that statistics could constitute a fact from which inferences could be drawn: West Midlands Passenger Transport Executive v Singh [1988] ICR 614 CA.  The Tribunal made no finding about the statistics nor referred to them.  On behalf of OPCA, it is said that the evidence was not challenged because it did not prove the point, and in any event, the Tribunal was not obliged, particularly in this case where there were many issues, to resolve every one.

29.	In our judgment, this was a minor piece of the evidentiary material, but it was one which merited a finding by the Tribunal.  Since the ground of appeal is essentially a lack of reasons challenge, we hold that it succeeds, for the Tribunal should have made a finding and given reasons if it was not impressed by the evidence.  Having identified such error, it is open to us to decide how to dispose of this ground.  We have all the material we need, for it is the statistics themselves. We have on the invitation of Mr Allen looked carefully at them and while the Tribunal may be faulted for not saying so, it is plain to us that they are neutral.  They do not support the proposition that a British man of Indian origin accused of sexual harassment was more likely to be disciplined than a relevant comparator, whether female or male, or British or not, or not of Indian descent. We will therefore make that finding which will be of assistance when the case is remitted to a Tribunal.
Failure to deal with allegations of discrimination

30.	A ground of appeal, advanced in Mr Thacker’s Skeleton Argument, was expressly abandoned by Mr Allen QC.  The complaint was that numerous allegations had been set out at a case management hearing on 18 September 2003 and the Tribunal failed to make decisions in respect of all of them.  The written response of Mr Tolley was that the Tribunal, was entitled to take the broad view which it did and that the matters singly or an aggregate could not be said, to have pointed towards the different decision from that the Tribunal made.

31.	Since this is not a live issue before us, we do not have to decide it.  But, again, in order to assist on the remission of this case, we hold that the Tribunal should note that the complete answer to paragraphs 18-22 of Mr Thacker’s Skeleton is provided in paragraph 33 of Mr Tolley’s and the Tribunal need not descend into an examination of any those matters.  In other words, the Employment Tribunal has not upheld the Claimant’s case on any of these, and he has not pursued them.  All these allegations are dismissed.

Disposal

32.	We have given careful consideration to the factors set out in Sinclair Roche when deciding whether to remit this case to the same Employment Tribunal and have decided that it should be differently constituted.  We have no doubt about the professionalism of this Tribunal and we consider that with correct directions it could make a different decision staying clear of the temptation to say “I told you so”.  There have been shocking delays in this case.  No submission has been made to us about the delay of six months following the close of written submissions on 5 December 2003 and the registration of Extended Reasons on 13 May 2004.  The relevant events took place in 2000 and 2001.  Claims were made in 2001.  The hearing began in 2003 and ended in 2004 and on remission will be heard during 2005, between four and five years after the relevant events.  Yet the Tribunal indicated no difficulty in descending upon these issues so long after they had occurred.

33.	However, we bear in mind that, on unfair dismissal at least, this was a split decision.  Our judgment means that the findings of the majority must be carried through by the full Tribunal when it considers the discrimination claims, and then when it considers remedies for unfair dismissal.  OPCA was dissatisfied with the unfair dismissal judgment and the Claimant with the discrimination judgments.  It is fair to say that a Tribunal judgment which was perverse, reached following an incorrect direction of the burden of proof, and in part a majority judgment, has too many flaws for it to be remitted to the same Tribunal with the requisite degree of confidence.  We are mindful of the robust comments about disproportionality which the Employment Tribunal already made.  On remission it will be a very substantially slimmed case.

The way forward

34.	Taking into account the Claimant’s equal pay case, it is almost 5 years since he first launched proceedings against OPCA and 3 ½ years since his dismissal which has of course been held to be unfair.  The Employment Tribunal will now have to consider the issues set out at the end of instant Tribunal decision set out above relating to contribution by the Claimant to his dismissal by of allegedly blameworthy conduct and remedies.

35.	We agree with the comments of the Employment Tribunal about the lack of proportionality about this case.  Yet, the Claimant should bear in mind that he has succeeded on unfair dismissal, and notwithstanding a majority finding by the EAT in his other case against him on equal pay, has achieved an acceptable compromise of that issue in the shadow of the Court of Appeal.  In the view of all three members of this Appeal Tribunal this case cries out for a conciliated or negotiated settlement, as the parties have been able to demonstrate in respect of the equal pay case.  The case is now back in the Employment Tribunal and the services of the ACAS will be available.  The parties are represented by experienced Counsel and solicitors.  We would urge both parties to consider most seriously our comments above and they will report to the Employment Tribunal within 28 days of this judgment on such steps as they have taken and propose to take.

36.	We would very much like to thank all three Counsel for their very careful oral and written submissions.  We will invite Mr Thacker to originate a draft order for handing down at the time this judgment is given.