Appeal No. UKEAT/0598/07/MAA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 10 April 2008
	                       Judgment handed down on 4 July 2008

Before
THE HONOURABLE MR JUSTICE UNDERHILL
MR D EVANS CBE
MR D G SMITH

THE COMMISSIONER OF POLICE OF THE METROPOLIS	APPELLANT

MR G S VIRDI	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR C SHELDON
(of Counsel)
Instructed by:
Metropolitan Police Service
Directorate of Legal Services
New Scotland Yard
Broadway
London SW1H 0BG	
For the Respondent	MR M SETHI
(of Counsel)
Instructed by:
Messrs Russell Jones & Walker Solicitors
Swinton House
324 Grays Inn Road
London WC1X 8DH	

SUMMARY

VICTIMISATION DISCRIMINATION
RACE DISCRIMINATION:  Inferring discrimination

The Claimant was a police officer whose application for promotion failed.  He claimed that the decisions of the relevant panels were motivated by direct racial discrimination and/or by the fact that he had previously brought successful discrimination proceedings against the Force (i.e. victimisation).  The Tribunal dismissed the former claim but allowed the latter.  Held that the facts relied on by the Tribunal in support of an inference of discrimination contained a serious factual mistake and the remaining matters were incapable of supporting the inference.

THE HONOURABLE MR JUSTICE UNDERHILL

1.	The Claimant in these proceedings, Detective Sergeant Virdi, is an officer in the Metropolitan Police.  He is of Asian ethnic origin.  On 2 September 2005 he brought proceedings against the Metropolitan Police Commissioner complaining of discrimination and victimisation within the meaning of secs. 1 (1) (a), and 2 (1), and contrary to sec.4 (2) of the Race Relations Act 1976.  (He also made a claim of disability discrimination; but that has since been hived off to be dealt with as a separate issue.)  The claim was heard over eight days in April and July 2007 by an Employment Tribunal sitting at London Central.  By a Judgment sent to the parties on 8 October 2007 the Tribunal dismissed the claim of direct discrimination but upheld the claim of victimisation.  This is the Commissioner’s appeal against that finding; there is no cross-appeal against the dismissal of the discrimination claim.  

2.	The Commissioner was represented before us by Mr. Clive Sheldon and the Claimant by Mr. Mohinderpal Sethi, both of whom also appeared in the Tribunal.  We are grateful to them both for their succinct and clear submissions.

THE FACTS

3.	The factual history is complicated as regards detail, but for the purpose of this appeal we need give only a fairly summary outline. 

4.	In June 1998 the Claimant brought a claim of racial discrimination against the Commissioner.  He was dismissed from the service with effect from 3 March 2000 and brought further proceedings in June 2000 claiming victimisation.  His claim of racial discrimination was upheld by a Tribunal in August 2000.  It appears, though we do not have any details, that he received a substantial award of compensation.  In September 2000 the Metropolitan Police Authority announced an enquiry into the way that the Claimant had been treated.  He was reinstated with effect from 30 November 2000, though he did not resume duties (and then initially only on a “recuperative” basis) until February 2002.  In December 2001 the Authority’s report was published.  It was critical of the Metropolitan Police in a number of respects and made numerous recommendations for improvements in their practices and procedures.  His case was also examined as part of a later enquiry – “the Morris Inquiry” - conducted by the Authority into professional standards and employment issues in the Force.  The details of these events are not material to the present case but the fact that the Claimant had featured in a case which had attracted a great deal of publicity both within the Metropolitan Police and more widely, and in which the Force had been the subject of serious criticism, is important.

5.	Following his return to active duty the Claimant’s work was largely in specialist fields.  In early 2005, when he was working in the Serious Crime Directorate (“SCD”), he applied for promotion to the rank of detective inspector.  The procedural position about such applications is complicated by the fact that there were at the time two processes operating in parallel, designated respectively as OSPRE and (thanks to a particularly ingenious acronymist) TOWBAR; but in this appeal we are concerned only with TOWBAR, which was a new process and being applied for the first time to promotions from sergeant to inspector.  Under TOWBAR a candidate was required to demonstrate eight specified competencies - “strategic perspective”, “maximising potential”, “respect for race and diversity”, “community and customer focus”, “effective communication”, “problem solving”, “planning and organising”, and “personal responsibility”.  Despite the somewhat general descriptions of the  titles, the notes under each head identified a number of more concrete skills and types of experience that were required, with – understandably – a focus in the case of many of the competencies on investigative experience.  
6.	Applications for promotion to detective inspector under the TOWBAR process were to be considered in the following stages:

(1)	Applications would initially be considered by a Local Recommending Panel (“LRP”), local to the candidate’s duty station.  

(2)	Disappointed applicants could appeal to a Central Review Panel (“CRP”).  But the CRP was also required, in order to try to ensure common standards across different units, to review of its own motion a substantial sample of all applications, both unsuccessful and successful; in practice in the year with which we are concerned it reviewed some 60 per cent of all applications.  On such a review it had, among other things, the power to overturn recommendations from the LRP if it believed that the quality of the evidence that the candidate had demonstrated the required competencies fell below the required standard.  Guidance as to how its role should be performed was issued to the CRP in a briefing paper.  We should note in particular para. 4.3 of the paper, which was in the following terms: 

“A broad interpretation is placed on the questions seeking evidence on the application form, so that no candidate is disadvantaged by their career background, for example those in specialist roles.”

(3)	Following the conclusion of the CRP process, there was to be a “Final Panel”.  This was, as the Tribunal put it (Reasons para. 4.36), “a quality assurance vehicle, taking an overview of the whole process”.  In other words, the Panel would examine the results as a whole, checking that proper procedures had been followed and looking for any patterns that might suggest systemic problems.  It was not an appeal process, though the Panel had power to revisit decisions in any cases where the review indicated that that was necessary.
(4)	Applicants disappointed by a decision of the CRP could appeal to an Appeal Panel on the grounds that the decision was either an “abuse of process” or “perverse”: these terms were the subject of formal definitions which we need not set out here (see para. 4.14 of the Tribunal’s Reasons).  Although the nomenclature might suggest otherwise, such an appeal fell to be exercised after the review by the Final Panel.

7.	The Claimant submitted an application on the prescribed form.  He took advice when drafting his application from Detective Chief Superintendent Bearchell, who had been mentoring him and who fully supported his candidature.  They both appreciated that the Claimant’s long absence from active duties, and the somewhat limited nature of the work that he had been doing since his return, meant that demonstrating all eight competencies (particularly in the field of investigative work) would not be straightforward; and in some cases he would have to rely on showing that skills which he had demonstrated in his recent work were transferable to different contexts.  Part of the advice which DCS Bearchell gave the Claimant was that he should not attempt in drafting his application to refer to experience prior to his dismissal, which would inevitably be many years previously.

8.	The Claimant’s application was endorsed by the LRP, though it was initially regarded as “borderline”.

9.	The Claimant’s application was one of those considered by the CRP.  The panel considering the Claimant’s application comprised three Detective Superintendents and an HR officer.  The Chairman of the Panel was Det. Supt. Worker.  The procedures prescribed for the CRP in handling an application were not followed to the letter; but in substance each of the three officers believed that the Claimant had not demonstrated all the required competencies, and Det. Supt. Worker made the decision to reject the application.  A feedback e-mail to the Claimant dated 12 May 2005 gave the views of the panel, with additional comments specifically from the Chairman.  The views of the panel read as follows:
	
“Strategic Perspective – evidence re wider issues affecting MPS, no detail of how candidate has contributed.  How has this been achieved. 

Maximising Potential – general example not specific – inform constable how?  No evidence of development investigative skills.

Respect for Race and Diversity – How was confidentiality respected – what was difficult message.  Overall meets standard of competency.

Community and Customer Focus - Evidence meets standard.

Problem solving – No evidence of systematic approach – risk not evidenced.  Not clear overall role in problem solving – links to investigation.

Planning and Organisation – Complex investigation?  Contingency plans?  Milestones?  Best Value? – Skills?

Personal Responsibility – Complex investigation?  Lack of confidence in MPS – what were obstacles?   Mistakes?  Feedback/criticism?  Openness and honesty?  Majority of competency absent.”

(“Effective communication” is missing in the original.)  The Chairman’s comments were:
“SP – Although within the SP box the evidence falls short elsewhere in the form is additional evidence.

MP – There is no evidence and describes predominantly a process not an example.  The one example has no evidence and is singular and lower level.

RRD – A powerful/strong evidenced examples as is CCF.

Effective Communication – is poorly presented and lacks evidence but my personal knowledge elevates this.

PS – Not an investigation and does not describe options.

P&O – Again not a ‘complex investigation’.  Generic evidence for P&O is present but not within an investigation arena as all are assessed against.

PR – Once again not a ‘complex investigation’.  Clearly a strategic example.  The candidate refers to it as an ‘investigation’ or an investigative element within it.  But ends describing it as ‘research arena’ supported by line manager as a ‘project’.”

10.	The full meaning of each of those comments cannot be appreciated without reference to the terms of the Claimant’s application.  But it is not necessary for the purpose of this appeal that they should be elucidated in detail.  The essential point is that the CRP found that the Claimant had failed to demonstrate several key competencies, particularly those requiring experience of “complex investigations”.  As noted above, this had been recognised by the Claimant and DCS Bearchell as a potential difficulty, but they believed that it could be overcome if the broad approach enjoined by the briefing (see para. 5 (2) above) were followed.  In the part of the Reasons addressing the direct discrimination claim the Tribunal made the following finding about the CRP’s thinking (see para. 7.7): 

“The clear view of the CRP – not, the Tribunal finds, motivated by racial or other improper considerations – was that for the important and demanding role of a detective inspector – an immediate appointment to which selection for TOWBAR would automatically entail – relatively recent practical knowledge, skills and significant experience of the traditional detective investigatory role was essential.  Such candidates if appointed would be expected on taking the post to advise and lead teams of detectives and others investigating serious incidents of alleged crime.  This belief and attitude was clearly entertained by the members of the CRP as the Chairman of their panel expressed in evidence … .  They saw the role of the detective as highly specialised requiring leaders with similar skills and honestly considered the Claimant had not demonstrated that he was qualified to an appropriate level.  It may be that that attitude was outdated and wrong; but the Tribunal saw no material upon which it could properly infer that a white comparator … putting forward an application in similar terms to that put forward by the Claimant, would not have been similarly rejected by the panel.  Indeed, it seemed to the Tribunal that such a comparator would have been rejected, given the importance members of the panel afforded to the need for demonstration of traditional investigatory experience on the part of candidates.  Rejection would have followed any application deficient in those aspects highlighted by the CRP irrespective of the race, colour or ethnic origin of the applicant.”

Elsewhere the Tribunal refers to the thinking which it attributes to the CRP as “the traditional approach”: we adopt that as a useful shorthand.

11.	Because of the sensitivity of the matter by reason of the Claimant’s previous complaints against the Force, the CRP’s decision was notified to, among others, the Director of Human Resources, Mr. Tiplady.  He thought it important to check that the application had been handled correctly.  At his request, Deputy Assistant Commissioner Roberts, the Force’s Director of Training and Development, carried out a “quick review” (his own phrase) and satisfied himself that that was indeed the case: we will refer to this as “the Roberts review”.  DAC Roberts communicated his view in an e-mail dated 16 May 2005 to Mr. Tiplady and two of his HR colleagues (one of whom, Mr. Hambleton, had been appointed to chair the Final Panel) and to two other senior officers in SCD, Superintendent Taylor and Deputy Assistant Commissioner Yates.  The e-mail read (so far as relevant to the points on this appeal):
	
“I have undertaken a quick review of the evidence supplied by DS Virdi and supplemented on behalf of AC Ghaffur.

On the face of the papers I can see nothing wrong with the conclusions of the moderating panel [i.e. the CRP] and thus support the decision already made and communicated to DS Virdi – i.e. that he has failed the process.

Having spoken to D. Supt. Taylor in SCD I am aware that DS Virdi intends to formally appeal against the TOWBAR process but that he is also due in the following week to take OSPRE Part 2.

On this basis it would be inappropriate for me to examine the detailed processes before the appeal grounds are received.”

12.	The Final Panel met on 18 May 2005.  One of the exercises which it carried out as part of its review led it to conclude that it ought to review all the cases in which the CRP had overturned the recommendation of the LRP.  That should have meant that it considered the Claimant’s application, but it did not do so because the Panel was told that his application (though he was not identified by name) was “already being reviewed at senior level and was not available to the meeting”.  In the event the decision of the CRP was upheld in all the cases considered (which numbered twelve).

13.	The Claimant appealed against the decision of the CRP.  He used a printed “Appeals Proforma”.  Section B of the form, headed “Grounds of Appeal”, provided boxes titled “abuse of process” and “perverse decision”: he ticked both.  There was then a box for “Appeal Details”.  In this he included a fairly detailed exposition of his case.  He dealt in turn with the four particular competencies which, as he read it, the CRP had held not to be demonstrated.  He then said this:
“In conclusion I believe that the CRP assessed my application on a narrow basis thereby excluding my application.  The CRP has failed to notice that I have had a period of FOUR years of forced absence from the MPS, I was posted to my current role due to my health conditions.  My current duties prohibit evidence within the narrow criteria.  The examples given are recent as I was advised to use these rather than historic ones from my career especially in my present rank of thirteen years.  Although the CRP were looking for examples in the narrow sense but have failed to recognise that skills of individuals can be broader than that.  This present system of selection to specialist posts according to the findings of MORRIS inquiry does not allow candidates to show other skills, experiences and enthusiasm required to be promoted/appointed as in this present TOWBAR application.  Fairness appears not to be present.

I was disappointed that this process of selection was conducted during the OSPRE Part II process and annoyed that my result was given to my OCU commander a few days before I was to sit the exam whilst my colleagues applying for the same process were informed of the result on 20 May – after the Part II had concluded.  The process has shown a degree of victimisation towards myself.

Finally the CRP viewed my application on the narrow restrictions whilst my local panel took the opposing broader view.”

Although that is a little diffuse, two general points can clearly be discerned which go beyond the Claimant’s particular responses in relation to the four competencies.  First, he was saying that the CRP had “assessed my application on a narrow basis”, failing to note that his peculiar recent history made it impossible for him to produce evidence of the competencies in question “within the narrow criteria”.  Although there is no specific reference to para. 4.3 of the briefing to the CRP (see para. 5 (2) above), the point made about the Morris inquiry was essentially the same.  Secondly, he referred to the fact that he had been advised (that is, by DCS Bearchell, although he did not name him) to seek to demonstrate his competencies by reference to recent rather than “historic” experience (cf. para. 7 above).  The Claimant’s local Detective Chief Inspector supported his appeal, making a similar point to the effect that the CRP had failed to take a “broad approach” and had not considered whether his demonstrated skills might be transferable.

14.	The Appeal Panel considered the Claimant’s appeal on 2 June 2005.  We should set out para. 4.38 of the Tribunal’s Reasons, which contain its main findings as to how the appeal was conducted.  It reads as follows:

 “…  The panel comprised its Chair – Commander Susan Wilkinson, who was joined by Detective Chief Superintendent Benjamin, Business Manager David Prebble, Detective Chief Inspector Kevin O’Leary, Detective Superintendent Sue Hill, with Mark Crake observing on behalf of the Police Federation.  A number of members of the Panel gave evidence to the Tribunal [we were in fact told it was only two, Cmdr. Wilkinson and Det. Supt. Hill].  The Tribunal was somewhat disappointed that Ms Wilkinson, who had been provided with instructions as to how the appeals should be conducted, failed to provide those to the Tribunal and indeed failed to take, or certainly did not produce, any notes of the progress of the matter before the appeal panel.  In considering the appeal, she did not take account of Mr Virdi’s assertion that he had been prevented from presenting the CRP with relevant material relating to investigations by him earlier in his career because he had been advised to concentrate on the last three years.  She also seems to have failed to deal with his assertion that he should not have [been] given his results immediately before sitting OSPRE.  Neither did the panel address the point he made about the necessity for the CTP to take a broad view of candidates, given that disadvantage would attend those in specialist posts were they not to do so.”
The Claimant’s appeal was only one of over twenty appeals considered on the same day.  As we understand it, the appeal consisted of a consideration of the written materials only: there was no hearing.  

15.	The Claimant’s appeal was unsuccessful.  The Panel gave its reasons as follows:

“The appeals panel have reviewed the candidate’s application, appeal and outcome of CRP.  The appeals panel take the view that the candidate provided generalised evidence in many of the competencies and did not show specifically what he did.  The panel agree with the findings of the CRP and the comments against competencies.

The candidate has not evidenced achievement of competency for the target rank.

In consideration of this appeal the panel took account of the candidate’s evidence and the comments made by the recommending panel. 

Appeal dismissed.”

16.	In the course (again) of the part of the Reasons dealing with the claim of discrimination, the Tribunal made the following finding about the decision of the Appeal Panel (at para. 7.8 of the Reasons):

“[The Claimant’s grounds of appeal] were not, in our view, adequately considered by the appeal panel.  We were to some extent hampered in our consideration of the appeal panel’s discharge of its responsibilities given that the methodology and processes adopted by the appeal panel, the guidance that the panel had been given and instructions on how it was to operate were not available and no notes of the individual appeal were produced.  It seemed to the Tribunal that the appeal panel confined itself to applying the criteria on the same basis as had the CRP, without exploring the matters as contended by the Claimant – not even looking into the substance of his concerns.  In the absence of the information mentioned above, the Tribunal cannot be satisfied that their conclusion that the Claimant “provided only generalised evidence in many competencies and did not show what he did” was not wrongly determined.  It seemed to the Tribunal that the process was shoddily operated and that it was informed by the same considerations as brought the CRP to its conclusion, namely that only somebody who had undertaken true detective investigatory work in the past was suited for promotion through the TOWBAR procedure.  This was made clear to the Tribunal by the evidence of the panel members from whom we heard.  Although the Claimant specified a number of issues which caused the Tribunal concern so that in the absence of proof from the Respondent we could have found a case of discrimination established albeit poorly presented, we were satisfied by the Respondent that their rejection of the Claimant’s application was not on the grounds of his race but stemmed from similar considerations from those expressed in more detail above.”

Two points should be noted about that passage:

(1)	In the final sentence the Tribunal makes an explicit factual finding that the reason for the Panel’s rejection of the appeal (and thus the application) was its acceptance of the “traditional approach” espoused by the CRP.  (The actual phrase used is “stemmed from”; but that is clearly meant to mean the same as “the grounds for” which appears in the first part of the sentence.) 

(2)	What the Tribunal criticised about the approach of the Panel was, specifically, its failure to engage with the two general points made in the Claimant’s grounds of appeal which we have noted at para. 13 above: it simply applied the same criteria as the CRP without considering the submission that those criteria prejudiced officers with limited or specialist experience, and it did not take account of the advice which he was given by DCS Bearchell.

THE LAW

17.	It is convenient at this stage to summarise the law relating to victimisation, so far as relevant to the present appeal.  

18.	Section 2 (1) of the 1976 Act provides as follows:

“A person (‘the discriminator’) discriminates against another person (‘the person victimised’) in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that [the person victimised has done an act of one of the kinds listed at (a)-(d) (“a protected act”)].” 

19.	It is now well-established that the phrase “by reason that” (as also “on the ground that” – the two phrases are interchangeable in this field) requires the tribunal to answer the questions “why did the alleged discriminator act as he did? what, consciously or unconsciously, was his reason ?”: see per Lord Nicholls in Chief Constable of West Yorkshire Police v. Khan [2001] ICR 1065, at p. 1072 D-E.  As Lord Nicholls points out, that is a subjective question, requiring a consideration of the mental processes (conscious or unconscious) of the decision-taker(s) (see Nagarajan v. London Regional Transport [1999] ICR 877, at p. 884F).  To put it another way (but still using terminology employed by Lord Nicholls), the question is “what motivated the alleged discriminator to act as he did?” (though NB that that is not necessarily the same as asking what was his motive).  The authorities also establish that victimisation is made out if the prohibited ground is found to have formed any significant part of the putative discriminator’s motivation: it does not have to have been the only, or indeed the main, reason.

THE VICTIMISATION CLAIM AND THE TRIBUNAL’S REASONS

20.	The Claimant’s victimisation claim was pleaded at paras. 37 and 38 of the Amended Grounds of Claim, as follows: 
	
“37.  In respect of the First Respondent. The Claimant has been subjected to victimisation contrary to Section 2 of the Race Relations Act of 1976.  The protected acts relied on are those referred to at paragraph 1 and 22.  The protected acts were made in good faith.

38.  The act complained of is the Claimant’s unsuccessful Towbar application resulting from the decisions of the central review and appeals panels.”

The protected acts pleaded by cross-reference to paras. 1 and 22 consist of the Claimant’s previous two employment tribunal claims (see para. 3 above) together, rather oddly, with the terms of the appeal to the Appeal Panel itself: the latter does not appear to have featured in the way the case was put thereafter.

21.	The Reasons are constructed on the conventional pattern.  So far as the findings of primary fact are concerned, we have sufficiently summarised these above.  As for the Tribunal’s summary of the relevant law and of the parties’ submissions, to the extent that we need to refer to these it is more convenient if we do so below.  The victimisation claim is addressed in the conclusion section following the discrimination claim.  The Tribunal’s reasoning reads as follows:

“Victimisation

7.9	The victimisation of the Claimant was said to lie in the whole course of his treatment following his decision to apply for admittance to the TOWBAR scheme.  The Tribunal has already indicated that it was satisfied that the advice he received from Mr Bearchell and the recommendation of the CRP were not in themselves acts of less favourable treatment and we hold to that view looking at those acts against all of the matters of which Mr Virdi complains.  There is no doubt, however, that Mr Virdi was treated differently to somebody who had not done a protected act as a number of witnesses for the Respondent freely admitted.  For example, Mr. Tiplady sought the opinion of Mr Roberts of the validity or otherwise of the decision of the CRP not to recommend Mr Virdi for promotion.  He did this, he said, because he was fully aware of the history of engagement between Mr Virdi and the Metropolitan Police and he wished to satisfy himself that there would be no ground for further action by the Claimant against the Service.

7.10 The Tribunal has not found the question of victimisation easy to determine and, in arriving at its conclusion, has been influenced by a number of matters not least of which is the fact that there are gaps in the evidence and explanations provided by the Respondent.  The Tribunal also bears in mind that discrimination can be unconscious (Nagarajan).  In arriving at our conclusion regarding victimisation, we have had particular regard to the following:

-	The appeal panel members all served with SCD.

-	SCD was the police division which bore the brunt of the Claimant’s earlier claim resulting in the Metropolitan Police being ordered to pay a very substantial sum of money by way of compensation.

-	The way in which members were appointed to the various panels was far from clear; for example the Chair of the appeal panel could not recall who had appointed her (although later she admitted in cross-examination that it may well have been Mr Roberts).

-	The criteria by which the appeal was to be decided were not produced to the Tribunal and the Chair of the panel could not recall exactly what instructions she had received in this regard.

-	All members of the panel were aware of Mr Virdi’s history.

-	No notes of the appeal process were made available to the Tribunal.

-	The Claimant’s main contentions, namely that he had wrongly been advised to withhold evidence of his earlier experience – perhaps most importantly what that earlier experience actually was – and that the CRP had been specifically enjoined to approach its task by taking a broad view of experience of candidates who had been placed in specialist posts, had been ignored – they seem to have received no consideration whatsoever from the panel.

7.11  Coupled with the foregoing, other unique features attended the handling of Mr Virdi’s application.  The Respondent had established a final panel whose function was to quality assure the whole process, particularly bearing in mind it was the first time it had been applied to the detective sergeant to detective inspector ranks.  The Claimant’s application was not considered by the final panel because it had been taken out of the process for a separate review, at the behest of the Head of Human Resources, Mr Tiplady.  He had passed the document to Mr Roberts who, rather than simply report the result of his findings (that the application had been treated unexceptionably), wrote, in addition to Mr Tiplady, to John Yates (SD3) Michael Taylor, the Claimant’s line manager (SCD 3), Charles Phelps (HR5) and Colin Hambledon (HR5) and the man who had been appointed to chair the final review panel.  It was the view of the Tribunal that disseminating this material so widely carried with it a significant risk that Mr Roberts’ views would be tantamount to an order and likely come to the knowledge one way or another of those who were later to conduct the appeal (which was heard on 2 June 2005).

7.12 The evidence produced findings of primary fact, summarised here, which led the Tribunal to draw an inference of discrimination.  The Tribunal had been satisfied that in supporting the CRP’s finding regarding the insufficiency of evidence the Appeal Panel was taking a traditional view of the detective’s and detective inspector’s roles, and their evidence so established.  That evidence did not persuade us that we were wrong in drawing the inference that a significant cause of the failure to deal thoroughly with the Claimant’s grounds of appeal stemmed from the knowledge of his history.  The Tribunal concluded that the Claimant, by reason of the protected act, was treated less favourably than would have been one who had not done the protected acts; there is no doubt in the Tribunal’s view that the appeal panel, at the very least subconsciously, was affected by their knowledge of the Claimant and of the action he had taken.  Had this not been the case, the Tribunal believes they would have recognised that the Claimant was contending that the decision of the CRP was perverse set against the guidance which governed or should have governed their approach to his claim and consequently he lost – that is suffered detriment – by losing an opportunity for his application to go forward.”

22.	The reasoning in those paragraphs is not, with respect to the Tribunal, very clearly set out.  That may, to be fair, be partly because some of the more important findings had already been made in the part of the Reasons concerned with the discrimination claim; but we believe that it is necessary to analyse the reasoning in what may appear to be rather laborious detail.  We do so as follows: 

(1)	The paragraph which contains the Tribunal’s actual conclusion is para. 7.12.  The other paragraphs feed into it and do not (though see para. 23 below) purport to make independent findings of discrimination.  It is clear that the only victimisation found in that paragraph is on the part of the Appeal Panel: there is no finding against the CRP.  

(2)	The first sentence of para. 7.12 says that the Tribunal has been led by its “findings of primary fact summarised here” to draw “an inference of discrimination”.  (Mr. Sheldon contended that the Tribunal was wrong to use the term “discrimination” rather than “victimisation”; but victimisation is, strictly speaking, a sub-category of discrimination and we can see nothing in this point.)  We do not think that the phrase “summarised here” can refer to the few sentences of para. 7.12 itself: the reference must be to the findings in the immediately preceding three paragraphs, i.e. paras. 7.9-11, (although those in turn must be read with the fuller findings elsewhere in the Reasons which they summarise).  Those paragraphs, therefore, contain the Tribunal’s reasons for holding that an inference of discrimination arises.  

(3)	The findings summarised at paras. 7.9-11 and which are thus relied on in support of the “inference of discrimination” are of a rather heterogeneous character.  Para. 7.10 sets out a number of matters specifically relevant to the thinking of the Appeal Panel and is to that extent unexceptionable: the various points made are “headlines” only and pick up points made more fully earlier in the Reasons.  But paras. 7.9 and 7.11 are concerned with the process prior to the Claimant’s application reaching the Appeal Panel.  The general point is made that his application was handled differently from that of other candidates who had not done any protected act.  The language rather suggests that there are many examples of this, but in fact the only instances given are two, which are closely connected, namely (a) Mr. Tiplady’s request to DAC Roberts to carry out a special review of the way that the CRP had handled the Claimant’s case and (b) the consequent exclusion of the Claimant’s case from the review by the Final Panel (see paras. 11-12 above): we will refer to this, compendiously, as the “review point”.  The Tribunal’s thinking appears to have been that the special handling of the Claimant’s case at that earlier stage supported the inference of victimisation on the part of the Appeal Panel.  

(4)	The Tribunal does not at this point say exactly what the “inference of discrimination” is, but it is spelt out more explicitly two sentences later: it is an “inference that a significant cause of the failure to deal thoroughly with the Claimant’s grounds of appeal stemmed from the knowledge of his history”.  That is a very particular formulation.  The detriment pleaded by the Claimant was simply that his application had been rejected.  But the Tribunal’s finding is not, as such, addressed to that: rather, it is addressed to the reason why the Panel did not properly consider his grounds of appeal.  This formulation is certainly deliberate: it reflects the more detailed findings at paras. 4.38 and 7.8 (see paras. 15-16 above), and it is put the same way later in this paragraph (see (6) below).  As we understand it, the Tribunal expressed its finding in this way in recognition of the fact that it had accepted that, at least on the face of it, the Panel’s reason for its decision was that it espoused the same “traditional approach” as the CRP: what the Tribunal is saying is that, but for the Panel’s knowledge of the Claimant’s history, it might have allowed itself to be persuaded that the traditional approach was wrong.  It may be that that is in the ultimate analysis a distinction without a difference: if the Claimant’s history contributed, to the Panel’s mental processes, even at a stage logically prior to the actual decision, it might be thought that it was part of the reason why the appeal was rejected - it is important to avoid over-subtlety.  But at this point we are concerned simply to elucidate the Tribunal’s reasoning.

(5)	The second sentence of para. 7.12 refers back to the finding at para. 7.8 (see paras. 14 and 15 above) that the Panel took the same traditional approach as the CRP, i.e. that “only somebody who had undertaken true detective investigatory work in the past was suitable for promotion”.  That finding is evidently not referred to here in support of the “inference of discrimination” drawn in the previous sentence.  Rather, as the next sentence makes clear, it is a “confession and avoidance”: that is, the Tribunal acknowledges that the finding goes the other way but holds that it is not sufficient to persuade it that the inference is wrong.  

(6)	The remainder of the paragraph is essentially an amplification of the point already reached.  The Tribunal says that it has “no doubt” that the Panel was influenced by its knowledge of the Claimant’s history.  Presumably the reasons for the Tribunal’s certainty are those specified in paras. 7.9-11.  The influence is described as “at the very least” subconscious.  Despite that somewhat grudging phraseology, we think it very unlikely that the Tribunal was intending to make a finding of anything but subconscious influence: if it had intended to find that any members of the Panel were consciously motivated by the fact of the Claimant’s previous complaints, that would need to be much more explicitly stated.  (We also note the reference to Nagarajan on this point in para. 7.10.)  Again, the Tribunal specifies the effect of the Panel’s knowledge as being not, as such, on the dismissal of the Claimant’s appeal but on its failure to recognise the force of his arguments, with the result that he “[lost] an opportunity for his application to go forward”.  That formulation is, again, obviously deliberately chosen, though – as already observed - it is debatable whether it is in practice any different from a finding that if the Panel had not been influenced by its knowledge of the Claimant’s history it might have been persuaded to allow his appeal.  Either way, the Tribunal does not seek to assess the chance that there would have been a different outcome: presumably it regarded that as a matter for the remedies hearing.

23.	Before we consider the challenges to that reasoning raised by the grounds of appeal, we should mention one point which only clearly emerged during the course of the oral hearing before us.  At the start of the appeal we raised with counsel the Tribunal’s statement in the first sentence of para. 7.9 that “the victimisation of the Claimant was said to lie in the whole course of his treatment following his decision to apply for admittance to the TOWBAR scheme” and its subsequent statement that it was undisputed that the Claimant had been treated differently from persons who had not done a protected act, with particular reference to the “review point”.  That seemed to us to raise a question whether the Tribunal understood that there were other acts complained of, over and above the only acts pleaded, namely the decisions of the CRP and the Appeal Panel.  Mr. Sethi initially flirted with mounting that bandwagon: he contended that subjecting the Claimant’s case to a different and (he contended) less satisfactory process – i.e. a review by DAC Roberts rather than by the Final Panel - was a distinct ground of complaint which required to be addressed whether or not his complaint about the outcome was successful.  But he eventually stepped back and said that he was content to rely only on the pleaded acts.  That was a correct concession.  We would have been very reluctant to proceed on the basis that the Tribunal had sought to decide issues not raised by the pleadings (which are of particular importance in discrimination cases - see Chapman v. Simon [1994] IRLR 124); and on our reading of the Tribunal’s Reasons, despite the wide opening words to which we have referred, we do not believe that it intended to do so.

THE APPEAL

24.	The Grounds of Appeal are advanced under five heads, which we consider in turn (taking the headings from Mr. Sheldon’s skeleton argument).  

(1)	Fundamental Mistake of Fact

25.	It is common ground that the statement in the second bullet of para. 7.10 of the Reasons that “SCD was the police division which bore the brunt of the Claimant’s earlier claim” is simply wrong: the division in question had been a different directorate, the Directorate of Professional Standards (“the DPS”).  But the parties disagree about the significance of the error.  

26.	Mr. Sheldon submitted that the mistake is fundamental.  It is plain, he said, that the second bullet is meant to be read with the first, which states (correctly, if one ignores Mr. Prebble) that all the members of the Appeal Panel were members of the SCD:  the point that the Tribunal was intending to make was plainly that because of the trouble which the Claimant had caused for their own directorate, a panel consisting of members of SCD would find it particularly difficult to put his previous history out of their minds.  Since SCD was not in fact the target of the earlier complaints, such a point would be obviously misconceived.

27.	Mr. Sethi submitted that the error is insignificant.  He contended that the two bullets were not intended to be read in the way propounded by Mr. Sheldon but were picking up two distinct points which he had made in his written closing submissions.  The first reflected a submission that having all its members from one division meant that the Panel was too homogeneous in its background: he explained that that was the point being made at para. 46.3 of his closing submissions.  The second bullet reflected a point which he had made about DAC Roberts having been asked to carry out the review described at para. 11 above: DAC Roberts had previously been head of the DPS, and Mr. Sethi had indeed (at para. 31 of his closing submissions) submitted that because the DPS was “the very department so heavily criticised by the earlier ET cases” it, and specifically DAC Roberts, would have had a “motive to work against C’s interests”.  He submitted that that was plainly the point which the Tribunal had in mind in the second bullet, and that the reference to the SCD was simply a typographical error.

28.	Generally, we would be much more ready to believe that the Tribunal expressed itself poorly, or made a simple slip of the tongue or keyboard, than that it had made a serious mistake about the evidence.  But after careful consideration we are persuaded that the Tribunal did indeed make the mistake alleged by Mr. Sheldon.  The starting-point is that the two bullets certainly read as if they were intended as a pair: if they are not, it is not clear what the point of the first bullet is.  Nor do Mr. Sethi’s suggested alternative explanations fit the drafting very well.  It would be impossible for the reader to understand the first bullet as a point about over-homogeneity; and, if it were, it is hard to see how it would support the inference of victimisation.  As to the second bullet, if “SCD” were corrected to “DPS”, it would, again, be impossible for the reader to understand what point was being made: further, the point which Mr. Sethi identifies has no obvious connection with the thinking of the Appeal Panel, which is the subject of all the other bullets.  We also note that in para. 5 of the Reasons, where the Tribunal sets out the parties’ submissions, it says this:
“The Claimant emphasised that to him it seemed surprising that 75% of applicants from a visible ethnic minority had actually been reviewed by the CRP – whose processes depended upon random selection.  The Claimant also pointed out that all panel members were of a non-visible ethnic minority origin and that two of them were from SCD – the division which had failed the Claimant and in relation to which he had taken previous actions resulting in a finding of discrimination and a substantial award of damages against the Metropolitan Police Service.”

The reference in the second sentence to “panel members” might only be to members of the CRP, being the panel referred to in the previous sentence.  But, whether or not that is what the Tribunal intended, the passage clearly shows that the importance which it attached to panel members being from the SCD was indeed the trouble which he was (wrongly) thought to have caused to that division.  It seems to us in the highest degree unlikely that the Tribunal was intending anything different when it addressed the same point at para. 7.10.  We thus accept Mr Sheldon’s submission that the Tribunal mistakenly believed that the SCD, to which all the members of the Appeal Panel belonged, had borne the brunt of the criticisms generated by the Claimant’s earlier complaints and so would find it peculiarly difficult to remain uninfluenced by that earlier history.

29.	We agree with Mr. Sheldon that this mistake goes to the heart of the Tribunal’s reasoning in support of the “inference of discrimination” drawn in para. 7.12.  Para. 7.10 sets out the principal factors about the Appeal Tribunal’s approach on which it relied (see para. 22 (2) and (3) above).  The Tribunal acknowledged that it did not find the question of victimisation easy.  The SCD point constituted the first two bullets in the list and, if it had been correct, would plainly have been a point of considerable weight, particularly since in our judgment most of the other points in the list are, to put it no higher, not particularly compelling (see paras. 43-46 below).  In those circumstances we are satisfied that it constitutes, or gives rise to, an error of law.  Put formally, the Tribunal made a finding, on a fact integral to its reasoning, for which there was no evidence: in another jurisdiction it might be categorised as “error as to an established fact”.  

30.	Mr. Sheldon in his skeleton argument (see para. 10) sought to bolster his point by drawing attention to what he said were other mistakes of a miscellaneous nature made by the Tribunal both in its recitation of the facts and in how it dealt with matters of submission or law.  He said that these indicated a general lack of attention to accuracy in its approach.  Mr. Sethi sensibly accepted that we could treat these points as if raised in the Notice of Appeal, notwithstanding that most of them had not been pleaded.  However, having reached the conclusion that we have, it is unnecessary that we seek to adjudicate on the points in question.  We only wish to say that although the Tribunal does unfortunately appear to have made this particular mistake (and one or two others of lesser importance), and although we have at some points had difficulties with its expressed reasoning, it is evident that it approached what it plainly found a difficult case with considerable care and responsibility.

31.	The consequence of our conclusion on this point is that the appeal must be allowed; but it remains necessary to consider the other grounds, not least because they include an allegation of perversity which, if upheld, would lead to the claim being dismissed rather than simply remitted to the Employment Tribunal.

(2)	No Comparator

32.	Under this general heading Mr. Sheldon advanced what seem to us to have been three distinct, albeit arguably related points.  We can deal with them shortly.

33.	First, he argued that the Tribunal erred in law “by failing to identify a comparator, or hypothetical comparator, with which to evaluate the claim of less favourable treatment”.  There is nothing in this.  If a tribunal finds that a claimant has been subjected to a detriment by reason of having done a protected act it necessarily follows that he has been treated less favourably than a person who has not done such an act would have been.  In such a case there is no need for the explicit “construction of a hypothetical comparator”.  All this was made pellucidly clear by Lord Nicholls in Shamoon v. Chief Constable of the Royal Ulster Constabulary [2003] ICR 337, at paras. 7-8 (pp. 340-1); and it is a pity that the point keeps on being taken.

34.	Secondly, he referred to a passage in the part of the Reasons dealing with the law (para. 6) where the Tribunal says that the 1976 Act “calls for a simple comparison between the Claimant who has done a protected act and a person who has not”.  He says that that is wrong because the reference should have been to a comparison between the treatment afforded to the complainant and the treatment afforded to those who had not (cf. Khan (above) per Lord Nicholls at para. 26).  There is nothing in this either.  No doubt the suggested formulation is strictly speaking more accurate, but there is nothing whatever to suggest that the Tribunal’s shorthand formulation led it into any error.

35.	Thirdly, he submitted that para. 7.12 merely states a conclusion without giving any reasons for it.  But, as we have sought to demonstrate in para. 22 above, the Tribunal’s conclusion in para. 7.12 depends on the reasoning in the previous paragraphs.  That reasoning may, as considered below, be flawed or inadequate; but it is unfair to the Tribunal to say that no reasons are given.

(3)	No Less Favourable Treatment

36.	We do not understand the point being made under this head.  The effect of the Tribunal’s finding in para. 7.12 of the Reasons is that if the Appeal Panel had not been influenced by the Claimant’s history it would have given proper weight to his grounds of appeal.  That necessarily means that he was being treated less favourably than someone without such a history: such a person’s grounds of appeal would have been properly considered whereas his were not.  We agree that it is at first sight rather odd that the Tribunal so determinedly focuses on that particular element, rather than finding more directly whether the actual result of the appeal would or might have been different; but, as we discuss elsewhere (see paras. 40-41 below) it had its reasons for putting its findings that way, and we cannot see that it made any error of law in doing so.

(4)	Improper Approach to the Burden of Proof

37.	Mr. Sheldon submitted that the approach taken by the Tribunal in para. 7.12 involved the adoption of the two-stage approach to the burden of proof derived from the Burden of Proof Directive and since embodied in the “Barton guidance” endorsed by the Court of Appeal in Igen Ltd. v. Wong [2005] ICR 931.  If that was indeed the Tribunal’s approach, it is common ground that it was wrong.  In Oyarce v. Cheshire County Council [2007] ICR 1693 this Tribunal held that s. 54A of the 1976 Act, which gives effect to the Directive, has no application to victimisation claims; and that decision has very recently (since the hearing before us) been upheld by the Court of Appeal ([2008] EWCA (Civ) 434).
38.	We can well understand why Mr. Sheldon made this submission.  The structure of the Tribunal’s reasoning as we have analysed it at para. 22 above does indeed have a strong flavour of the two-stage approach: at the start of para. 7.12 the Tribunal draws an “inference of discrimination”, and it then proceeds to consider whether (in effect) the Commissioner’s explanation for the Claimant’s treatment persuades it that that inference was wrong.  But in the section of the Reasons setting out the law the Tribunal had stated in terms that Oyarce “makes it clear that the reverse burden of proof does not apply to cases of discrimination” (para. 6.4).  It would be very surprising if in those circumstances it had ignored its own self-direction, particularly as Oyarce was then a brand-new case which took many people by surprise.  Not without some hesitation, we find it possible to read the third sentence of para. 7.12 not as the formal application of “Barton stage 2” but simply as bringing into the balance a point going the other way which, on the way the Reasons had been structured, had not previously fallen to be considered.  

39.	Even if we are wrong in that conclusion we do not believe that any error in the approach to the burden of proof would in itself justify overturning the Tribunal’s decision.  The victimisation issue was not decided on the burden of proof: the Tribunal made an explicit positive finding that the Appeal Panel had been influenced by the fact that the Claimant had done a protected act – see para. 22 (6) above.

 (5)	Perversity

40.	The heading “perversity” is not perhaps appropriate for the two (related) points which Mr. Sheldon developed in his submissions.

41.	The first point was that the finding by the Tribunal that at least part of the reason for the Appeal Panel’s decision (or, more accurately, for its failing to address the Claimant’s grounds of appeal) was that he had done a protected act is inconsistent with the findings which it made at para. 7.8 of the Reasons, as set out at para. 16 above.  Although that paragraph was concerned with the discrimination claim, the Tribunal made an explicit finding that “[the Appeal Panel’s] rejection of the Claimant’s application was not on the grounds of his race but stemmed from similar considerations to those expressed in more detail above [our emphasis]” – i.e. the traditional Approach “that only someone who had undertaken true detective investigatory work in the past was suited for promotion”.  That, he submits, is an explicit finding as to the reason for the decision which necessarily excludes the possibility that any other consideration significantly contributed to it.

42.	We do not accept that submission.  In our view the two findings are reconcilable on the basis that the Tribunal intended to find that the Panel’s espousal of the traditional approach represented its conscious and avowed thinking on the actual decision which it took but that in failing to address the arguments which might have led to it modifying that view it was (subconsciously) influenced by its knowledge of the Claimant’s history.  That seems to be what the Tribunal is saying in the first half of para. 7.12 (as to which, see para. 22 (5) above).  We can see nothing logically wrong with it: the process of reaching a decision is often complex, and there is no reason in theory why illegitimate considerations may not operate on some parts of a decision-taker’s thinking but not others.  It may not often be possible to make the kind of subtle distinction which the Tribunal did in this case, and tribunals will certainly not always find it necessary to do so; but we cannot see that it gives rise to any error of law. 

43.	There remains, however, the second way in which Mr. Sheldon developed the point.  Even if the Tribunal’s conclusion is logically consistent, the question remains whether it was one to which it could reasonably have come on the basis of its findings of primary fact (including the finding in para. 7.8).  Mr. Sheldon submitted that once the “SCD factor” is taken out of the equation the remaining factors itemised in paras. 7.9-11 are insufficient to justify the Tribunal in drawing an inference of the kind of subconscious discrimination which it did.  We review those factors under two heads – (a) the bullet-points in para. 7.10, all of which relate specifically to the consideration of the Claimant’s application by the Appeal Panel, and (b) the factors relating to the prior handling of his application: see para. 22 (3) above.

(a)	Para. 7.10  

44.	The remaining bullet points in para. 7.10, once the first two are taken out, fall into three groups.

45.	First, the third, fourth and sixth bullets are on the face of it concerned with the absence of evidence which the Commissioner or his witnesses might have been expected to produce – specifically, evidence about how members were appointed to the panels, evidence about the “criteria” applied by the Appeal Panel and contemporary notes of the Panel’s deliberations.  We can understand why the Tribunal was concerned by these gaps in the evidence.  But the particular question in the present context is whether they are capable of justifying, or at least helping to justify, the drawing of an inference of victimisation.  It is worth emphasising that an inference is a factual finding, albeit one based on indirect evidence: thus the failings in question, however reprehensible, must, if they are to be taken into account, be such as to make it more likely that the members of the Panel were subconsciously prejudiced against the Claimant because of his previous history (cf. the observations in D’Silva v. NATFHE [2008] IRLR 412, at para. 38).  Inferences are not drawn as a sanction for bad behaviour.  The Tribunal does not itself (either here or in the earlier paragraphs from which these bullets derive) offer any analysis of how these failings support the inference which it drew, and it therefore falls upon us to attempt to do so.  We have not been able to detect anything in any of these points (or the underlying findings) which seems to us capable of supporting the inference in question.  Taking the bullets in turn:

-	While we can understand why the Tribunal would have liked to know, as part of the background to the case, how members were appointed to the panels – and specifically, in this context, the Appeal Panel – it is not clear to us exactly how it bears on the question whether some or all of them may have had a subconscious prejudice against the Claimant.  The identities and backgrounds of the members were of course fully disclosed, and two of them, including the Chair, gave evidence to the Tribunal.  It might in theory have been suggested that someone with an animus against the Claimant – perhaps DAC Roberts – deliberately set out to select people who were likely to share his prejudice.  But that seems frankly fanciful, not least in the light of the fact that the Appeal Panel was not established to deal specifically with the Claimant’s case.  We see no sign in the Reasons (or in Mr. Sethi’s closing submissions) that such a case had been advanced or put to the relevant witnesses or that it was in the Tribunal’s mind.

-	The Tribunal recorded at para. 4.38 of the Reasons (see para. 14 above) that Cmdr. Wilkinson said that she had had “instructions as to how appeals were to be conducted” but had failed to “provide” them (which implies that they were in writing).  It seems that these are the “criteria” referred to in this bullet, and that they must have been procedural in character: the substantive criteria for deciding the appeals were of course available to the Tribunal (see para. 6 (4) above).  That indeed appears to be confirmed by the wording of the second paragraph of para. 7.8 (see para. 16 above).  On that basis it is hard to see what light these could have shed, even if produced, on the question whether members of the Panel were subconsciously prejudiced against the Claimant.  It is true that loose procedures can make it easier for subconscious prejudice to operate; but proof that loose procedures have been followed in any given case cannot by itself raise an inference of discrimination.  

-	The finding underlying the third bullet is also in para. 4.38 of the Reasons: it appears that the Tribunal was not clear about whether no notes were taken or whether they had been lost or destroyed.  If the position is that no notes were taken, that may indeed be bad practice and perhaps further indicate a looseness of approach which increased the opportunity for subconscious prejudice to operate, but it is not by itself any evidence of such prejudice.  As to notes being lost or destroyed, this would at worst be careless - deliberate withholding does not appear to have been alleged and would certainly have had to be the subject of a specific finding – and carelessness would not support an inference of discrimination. 

In some cases of failures to provide evidence, an adverse inference may be justified because the tribunal concludes that the employer is being evasive because he knows that the evidence in question would support the claim of discrimination.  But the Tribunal made no such finding here.  It was understandably critical of Cmdr. Wilkinson’s inability to provide answers to its questions; but that may have had one or more of several causes, and if the Tribunal intended to find deliberate evasiveness no doubt it would have said so.  In fact, we get the clear impression that the Tribunal’s criticism was of a general shoddiness (to use its own term in para. 7.8) in the way the Appeal Panel procedures were operated.  That is regrettable but it is not evidence of prejudice.

46.	Secondly, the fifth bullet point is simply that the members of the Appeal Panel were aware of the Claimant’s history.  That is no doubt a sine qua non for a finding of victimisation, but by itself it does not take matters any further.  In cases like the present, where a claimant has been involved in a previous high-profile complaint, tribunals will of course be particularly sensitive to the risk that his employers have allowed that fact to prejudice their subsequent treatment of him.  But it would be unduly cynical to proceed on the basis in every such case that the mere fact of the previous complaint creates a presumption of victimisation in every subsequent adverse decision.

47.	Thirdly, the Tribunal raises in its final bullet-point what was clearly its main criticism of the Appeal Panel’s approach, namely the failure to engage with his grounds of appeal.  That is a legitimate criticism, but it is not specifically indicative of prejudice.  It is at least equally consistent with “shoddiness”.  It is not hard to see how a Panel taking a careless or hasty approach would either not appreciate the significance of the two general points identified at para. 13 above or would not think they needed to be specifically addressed.  Even courts sometimes fail to deal with every point taken by the parties, and this was a lay tribunal, without the assistance of oral submissions, dealing with over twenty cases in a day.

48.	Overall, therefore, the remaining bullet points in para. 7.10 identify various deficiencies in the Appeal Panel’s approach to the decision in the Claimant’s case but none that are specifically indicative of victimisation.  That does not mean that a conclusion of victimisation was impossible: even ignoring the effect of the Burden of Proof Directive, it may, depending on the particular circumstances, be legitimate to infer discrimination simply from the fact that the decision in question is unreasonable or otherwise hard to account for except on the basis of a discriminatory motivation (particularly where such a motivation is plausible).  But that does not seem to us to have been the case here.  This is not a case where there was no obvious explanation for the failure of the Claimant’s application.  There was clearly, as all concerned realised at the time, a strong argument that on the traditional approach the Claimant could not demonstrate the necessary competencies.  The question was whether the exhortation in the guidance to take a broader view should lead to a different outcome in his case.  That is inevitably a matter of judgment, and if the Panel had said explicitly that even having regard to that guidance the competencies had not been shown such a conclusion could not possibly have been said to be so surprising or unreasonable as to suggest an illegitimate motivation.  Likewise if it had said that DCS Bearchell’s advice to the Claimant made no difference to its assessment.  We cannot see how the fact that the Panel failed specifically to make those points in its deliberations or its short reasons changes the position.

(b)	Paras. 7.9 and 7.11

49.	The Tribunal is concerned in these paragraphs with the review point - that is, that because the Claimant’s case was, uniquely, given a special “quick review” by DAC Roberts in order to see whether the CRP had followed proper procedures it did not have the benefit of an equivalent review from the Final Panel – see paras. 11 and 12 above.  Since – see para. 23 above – that is not relied on as a free-standing act of victimisation, the question is whether it is capable of being evidence of victimisation on the part of the Appeal Panel.  We do not see how it can be.  The individuals involved were different.  There was no finding that the members of the Appeal Panel even knew of the Roberts review or the consequent exclusion of the Claimant’s case from the review undertaken by the Final Panel.  

50.	The nearest which the Tribunal gets to making a connection between the review point and decision of the Appeal Panel is its finding at para. 7.11 that the unnecessarily wide circulation given to DAC Roberts’ e-mail of 16 May 2005 “carried with it a significant risk that Mr Roberts’ views would be tantamount to an order and likely come to the knowledge one way or another of those who were later to conduct the appeal”.  We have the following observations about that finding:

(a)	It is not in terms a finding that the e-mail, or the views expressed in it, did come to the attention of any member of the Appeal Panel (none of whom were actual addressees of the e-mail or included in the “cc” list).  It is a finding only that there was a “significant risk that [his] views would … likely come to [their] knowledge”.  Read literally, that is not a finding that they did or even that it is likely that they did, but only that there was a “significant risk” that they “likely” would do so.  Although the wording might be capable of a wider construction, if the Tribunal had intended to find as a fact (even if only on the basis of a probable inference) that the members of the Panel knew of DAC Roberts’ views we would expect it to have said so and to have dealt with the point in some detail in its prior findings of fact.  

(b)	What DAC Roberts said in the e-mail (see para. 11 above) could hardly be described as “tantamount to an order” (sc. to dismiss the Claimant’s appeal).  He said simply that “on the face of the papers I can see nothing wrong with the conclusions of the [CRP]” and he went on to say that he was aware that there was to be an appeal and that it was accordingly inappropriate for him to go into it in more detail.  That is a very limited finding, which expressly recognises that the Appeal Panel might reach a different conclusion.  Of course, in theory there could be a risk that others would try to read between the lines or distort the message in communicating it, but there is no finding that that occurred and it is at best speculative.

(c)	Even if DAC Roberts’ views did become known to the Appeal Panel and (at least subconsciously) influenced it, it is not clear why that would constitute victimisation.  As Mr. Sethi accepted, there was no finding by the Tribunal that in coming to the views that he did or in circulating them to the people he did DAC Roberts was influenced by the fact that the Claimant had done a protected act; and there is nothing in what he said to suggest that that might be the case.

Conclusion

51.	Having thus reviewed the facts relied on by the Tribunal in para. 7.12 of the Reasons, we cannot find that they are capable of justifying the inference that the Panel was to any significant extent influenced in reaching the conclusion that it did by its knowledge of the Claimant’s history.  In those circumstances the correct course is not only to allow the appeal but to dismiss the claim.  Although this Tribunal is always cautious about differing from an Employment Tribunal on a question of this kind, we do so the less reluctantly in this case because the Tribunal admitted that it had found the question of victimisation difficult: if it had not made the mistake discussed at paras. 25-30 above there is good reason to suppose that it would have reached the same conclusion as we have.

52.	Postscript.  We should say that at a late stage in the preparation of this judgment the Tribunal was sent a copy of the Tribunal’s decision on remedy promulgated on 20 May 2008.  We have not thought it right to take that decision into account for the purpose of this appeal.