Appeal No. UKEAT/0167/09/JOJ

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 29 July 2009

Before
HIS HONOUR JUDGE McMULLEN QC
PROFESSOR S R CORBY
MR J MALLENDER

MISS S PALIHAKKARA	APPELLANT

BRITISH TELECOMMUNICATIONS PLC	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – ALL PARTIES

	APPEARANCES

For the Appellant	MISS S PALIHAKKARA
(The Appellant in Person)		
For the Respondent	Written submissions		

SUMMARY
PRACTICE AND PROCEDURE:  New evidence on appeal
SEX DISCRIMINATION:  Direct
RACE DISCRIMINATION:  Direct

Applications by the Claimant for admission of new evidence were refused: Ladd v Marshall applied. The Employment Tribunal examined the 40-odd claims and dismissed all but one contract claim. No error of law. The Claimant contended that the Employment Judge displayed an error of law in oral exchanges with her leading counsel but these were not reflected in her counsel’s evidence to the EAT nor in the reserved judgment of the full Tribunal, which is the proper source of the its self-directions.

HIS HONOUR JUDGE McMULLEN QC

1.	This case is primarily about race discrimination and victimisation, but secondarily about sex discrimination and victimisation.  It also involves an allegation of a breach of contract, together with criticisms of Employment Tribunal procedure.

2.	This is the judgment of the court to which all members appointed by statute for their diverse specialist experience have contributed.  We will refer to the parties as the Claimant and the Respondent.

Introduction
3.	It is an appeal by the Claimant in those proceedings against a Judgment given by Employment Judge Postle on behalf of the Tribunal orally on 29 July 2008 and in written reasons on 14 October 2008, following an 11‑day hearing at Watford.  The Claimant was represented by Mr Nigel Giffin QC, the Respondent by its in‑house solicitor, Mrs Lisa Townsend.

4.	The Claimant made a very substantial number of claims under the anti-discrimination code and of breach of contract.  The Tribunal dismissed them all, save for one complaint of breach of contract, in that the delay in handling the Claimant’s grievance was well founded.  A remedy hearing is due on that issue.  The Respondent denied the claims of discrimination and, where appropriate, offered explanations for conduct which the Claimant criticised.

The issues
5.	The Employment Tribunal decided to confine itself strictly to the issues which had been laid down at a case management discussion, which the Claimant did not attend but which she was content for leading counsel to attend on her behalf.  The issues, insofar as they survive (since some were abandoned and one was rejected out of time and no appeal is sought) are as follow:
	“1. Did the Respondent discriminate against the Claimant: 

a.	on racial grounds; or

b.	on the ground of her sex in any of the following respects:
c.	
(i)            failing to award her any pay increased in March and/or June 2002;
(iv)	awarding her a score of 4 in her September 2002 interim appraisal and/or placing her on a Performance Improvement Plan in November 2002 and/or the manner in which the Claimant was informed of those matters;
(v)	the treatment of her by her Line Manager described in paragraph 23, 24 and 28 of the FBP’s;
(vi)	keeping her on a Performance Improvement Plan after 31 January 2003 and/or failing to explain to her that this was the case;
(vii)	failing to consider or investigate between December 2002 and March 2003 whether the Claimant was being treated fairly by her Line Manager, and/or to move her to another post in the interests of welfare; 
(ix)	awarding her a score of 4 in her final appraisal for 2002/2003, and making unjustified critical assertions in that appraisal, and/or the manner in which she was informed of her score and/or the failure of senior managers to address properly the question of whether she had been fairly appraised by her Line Manager and/or seeking to discourage her from appealing against that appraisal; 
(x)	continuing to keep her on a Performance Improvement Plan after she was transferred to a new post in June 2003, and continuing to permit her previous appraisal to affect the appraisal of her in 2003/2004;
(xi)	subjecting her to the hostile treatment described in paragraph 42 of the FBP’s

2. Did the Respondent discriminate against the Claimant by way of victimisation, contrary to the Race Relations Act 1976, in any or all of the following respects:
			
			(i) those set out in paragraphs 1(iv), (v), (vi), (ix), (x), and (xi) above;
(ii) failing to deal properly with the Claimant’s grievance as set out in paragraphs 54 and 58 of the FBP’s.
(iii) failing to allow the Claimant a proper opportunity to consider whether to agree to the termination of employment as set out in paragraph 65 and 66 of the FBP’s.

3. Did the Respondent act in breach of the Claimant’s contract of employment in any or all of the following respects, namely:- 
	
(i) those set out in paragraphs 1(i) to (xi) and 2 (ii) and (iii) above,
(ii) the further failure to deal properly with the Claimant’s grievance set out in paragraph 63 of the FBP’s.”

We have used a scalpel on the above since it would follow that claims of victimisation were not pursued in respect of the abandoned allegations of discrimination. Nevertheless about 40 discrete claims survive. On the basis of submissions, the Tribunal expressly regarded the claims of race discrimination as primary.  
6.	In light of the Tribunal’s rejection of most of the claims, the Claimant launched an appeal and an application for a review, with a very substantial number of further documents.  It was considered by Employment Judge Postle on 30 January 2009 and rejected as having no merit and no reasonable prospect of success.  Part of the Judge’s reasons for refusing the application was that it was based upon new evidence becoming available, particularly in relation to Ms Gannon as a witness.  The Judge made clear that since the Claimant had been represented by leading counsel and was aware of Ms Gannon’s evidence, this could have been put before the Employment Tribunal.  Some of the matters are, if anything, apt for appeal and not for review.  The Employment Judge noted once again that the Claimant, having been represented as he put it by “a very experienced QC”, the Claimant had every opportunity to advance any relevant evidence.

7.	I stayed the appeal against the substantive judgment pending review, and then when the stay was lifted, Wilkie J considered the matter on paper and came to this conclusion:
“The Notice of Appeal amounts to no more than an expression of disagreement with the ET’s decision.  No point of law is identified with any degree of specificity.  The ET decision was reached after the exhaustive review of the evidence and finding of facts.”

8.	Dissatisfied with that opinion, the Claimant, as was her right, made a further application and Underhill P, considering the matter, sent the matter to this preliminary hearing.  We have shared with the Claimant who represents herself today in no doubt stressful circumstances the President’s then view, which was that it was impossible to make sense of certain of the matters without the full papers.  His view was that most if not all of the case was hopeless.  He set up a preliminary hearing because he did not consider the matter could be dealt with summarily and that it would be helpful to have input from the Respondent.  He also identified two possible problems; the breach of contract claims and an exchange between the Employment Judge and Mr Giffin QC. He ordered a bilateral preliminary hearing, which is unusual in our system, in order that there could be attendance by the Respondent in addition to written representations.  The Respondent has chosen to do the latter, so we have written representations from Mrs Townsend who appeared at the Employment Tribunal.

9.	We also have a substantial amount of material submitted by the Claimant by way of applications to adduce new evidence, together with a statement made by Mr Giffin on 19 June 2009, as to which he gives some assistance at the Claimant’s request about two factual matters.

10.	It is also necessary to say how this case got off the ground.  In a judgment which I gave sitting with Mr P A L Parker CBE and Mr H Singh on 9 October 2006, UKEAT/0185/06, we allowed the claims which are now the subject of this appeal to be heard by the Employment Tribunal. The Claimant had signed a compromise agreement which the Respondent hoped would put an end to any further disputes about the Claimant’s employment.  Sadly for the Respondent, we held that this was inadequate to do anything other than compromise claims arising on the termination of her employment, leaving open the claims which she wished to make in respect of her per-employment discrimination and breaches of contract.  Reference should be made to the second part of that judgment at paragraphs 17-20.

The legislation
11.	The legislation is not in dispute.  The Employment Tribunal directed itself to the relevant provisions in paragraph 5 of its judgment.  In short, they are Sex Discrimination Act 1975, sections 1(a) and section 4 (victimisation); the Race Relations Act 1976, sections 1 and 2 (victimisation). It directed itself correctly on the burden of proof as set out in Igen v Wong. [2005] ICR 931 CA and at this stage there is no dispute as to the law on victimisation under the Race Relations Act 1976.

12.	The Tribunal noted that it was to consider in both discrimination cases a hypothetical white male/female carrying out like work.  There appears to have been no separate consideration of a comparator for the purposes of a protected act, but no issue has been raised in about that.

13.	It appears that the Tribunal set a rather stiffer task for the Respondent than was necessary, for it said this:
“The Tribunal will therefore be looking to consider once an employee or the Claimant has raised a prima facie case by something which could infer discrimination the burden of proof shifts on the employer to show that no discrimination has occurred.  The Tribunal have reminded itself that employers never admit discrimination and, therefore, the Tribunal have been aware of the potential for unconscious discrimination.”

It took a rather dim view of what employers do (and repeated it at para 8.3), for it is not our experience that employers never admit discrimination.  In plain cases they do.  Nevertheless if this is a misdirection it is in the Claimant’s favour, for the Tribunal was clear to determine whether there was any discrimination.

The facts
14.	The actors in this drama who all gave evidence were as follow: 
“In this Tribunal we have heard evidence from the Claimant who called no witnesses.  The Respondents: we heard evidence from Mr Kleppen, at the relevant time he was Finance Manager and the Line Manager to Nigel Jones, who in turn was the Line Manager to the Claimant.  Mr Ginn who was the Director of Consumer Finance; Mr M Barker who took over Mr Kleppen’s position in April 2003.  Mr Downes, Line Manager to the Claimant from June 2003; Mr Hunter-Brown, Human Resources Manager; Miss S Bertrand, Project Manager and the Manager who carried out the investigation into the Claimant’s first stage grievance; Mr Belcher, Senior Manager who was instructed to carry out the appeal against the Claimant’s first stage grievance; Mr Collins, the Line Manager to the Claimant from about September 2004; Mr Edwards, also Line Manager from about June 2004; Mr Air, Human Resources Manager.  All witnesses gave their evidence through prepared witness statements.  The Tribunal also had the benefit of three lever arch files of documents consisting of a total of 1,538 pages.  Mr Jones, the Claimant’s Line Manager, did not give evidence at this Hearing.”

Thus the Claimant gave evidence herself and a considerable part of the management team at BT did too.  Although a central character, Mr Nigel Jones gave no evidence as he had become seriously ill.

15.	The Tribunal was at pains to make clear its approach to the evidence, for at the end of its judgment it gave this impression:
“8.1  So far as the evidence is concerned it has to be said, and this was the overwhelming view of the Tribunal, that all the witnesses from the Respondents gave candid, open, honest and reliable evidence set against a Claimant who had shortcomings in her performance.  They were identified, yes, the Respondents made mistakes in terms of Nigel Jones’ management of her, and that was more to do with poor management skills than as his ability as a Manager and, yes, there were delays over her grievance.  But the fact remains the Claimant would not accept constructive criticism, would not accept that in some areas of her development in what must have been a very demanding role, there were areas of improvement, and despite all attempts by the various Managers, those attempts were met with a negative response by the Claimant and an unwillingness on her part to accept that she had shortcomings. 
8.2 The Claimant, under cross-examination, was often evasive and had to be pushed to answer direct questions and clearly had an unwillingness to accept that she could be wrong, particularly in the circumstances where on many occasions the Claimant received many positive comments about her work as well as areas that it was felt she needed to improve upon.
8.3 The Tribunal using their experience is, of course, cautious in their approach to discrimination cases because no individual will admit to discrimination and one has to be mindful of unconscious discrimination.
8.4 However, what came out clearly to the Tribunal following the evidence is the Claimant clearly is talented.  She is a very strong willed person but unwilling to accept constructive criticism and accept that experienced managers had identified the Claimant (and others in her team of male and female, and white) as having some development needs in some areas, and they needed to be addressed.  The Claimant was given a great deal of support from many managers, whatever the Claimant may think, in trying to address her shortcomings and move the Claimant forward and progress her career within the Respondents.”

16.	Naturally, the Claimant was upset about the finding that she was evasive and pointed out to us in her submissions today that she was met by a large body of witnesses for the Respondent, and was facing difficult cross‑examination.  She is also unhappy about the finding by that she fabricated part of her evidence.

17.	In her particulars the Claimant says that her racial group is Asian. This Employment Tribunal says nothing of that. It is a material error for a tribunal not to make such a finding which is the essence of a claim under this statute. But it seems to us that that is uncontroversial. The Tribunal says nothing about the business of the Respondent.  It is a major international provider of communications. The Claimant worked for it for four years, as a Finance Manager/Finance Analyst in Hemel Hempstead.  She is an accountant.

18.	The Tribunal took an analytic approach to the issues set out in the CMD.  As Underhill P pointed out, without the CMD it may have created a slight gap in the Tribunal’s reasoning, but with the CMD to hand the sequence of events is rigorously and chronologically considered and dealt with.  The Tribunal examines each of the issues set out in the CMD and makes a finding as against the statutory torts, that is sex, race, victimisation under both, and usually in respect of breach of contract, but not in every case.

19.	The Tribunal said the following:
“6.1 The Claimant was employed by the Respondent from 21 September 2001 until her employment was terminated by mutual consent on 31 May 2005 which involved the Claimant signing a compromise agreement.  It is important to note the Claimant’s claims are, therefore, not about the dismissal itself, whether ordinary or on the grounds of race, sex or breach of contract.
6.2 The Claimant was employed as a Finance Analyst (originally called Finance Manager).  She was assigned to the Retail Division of the Respondents.  She was an Accountant.
6.3 At the beginning of the Claimant’s employment her Line Manager was Nigel Jones who was based in Swansea.  Her second Line Manager was Stephen Kleppen who ultimately was replaced by Mike Barker (following promotion) around April/May 2003.  The next Line Manager in the chain of command at this time was a Mr Rowland Ginn, Finance Director.
6.4 The Claimant was employed at grade MPG4 of which she now makes no complaint and was paid around £34,000 per annum basic salary at the time she commenced her employment.  All employees are subject to an annual performance appraisal with an interim review carried out some time around September.  The end of year appraisal normally occurs around March or thereabouts.”

20.	The first allegation was as to the way in which the Claimant was first appraised in March 2002.  The Tribunal found that there was no discrimination or breach of contract.  There was no guarantee of a review in her salary, she being a relatively new starter.

21.	The Tribunal then considered the Claimant’s application to be a member of CIMA, and concluded from its own experience that the steps taken by the Respondent when making the application for professional membership were properly taken.  It is important to note the Tribunal is here, as elsewhere in this judgment, drawing upon its experience of employment matters in order to inform its assessment of the evidence.

22.	The Claimant considered that in November 2002 managers began a campaign of race discrimination, sex discrimination, victimisation, and in respect of this the Tribunal said:
“6.10 Around October/November managers meet with Mr Ginn to discuss what is called in BT “the levelling exercise”.  This is an annual event when managers level the performance of individuals at the interim year stage.  Managers are requested to clearly differentiate between the grades of outstanding, very good, good, generally satisfactory, needs improvement.  As it appeared to Human Resources there was no proper differentiation being carried out between the various grades and they needed properly to identify the different categories and thus identify anybody who was generally satisfactory which would then lead to that employee being put on a performance improvement plan which, the Tribunal accept, is not evidence of a poor performer.  It is as described in BT’s policies as someone who has some development needs in some areas.  The aim of the performance improvement plan is clearly more of a coaching role in order for employees to fully develop and is not a formal process in the first instance.  At this meeting, that is, the levelling meeting, Nigel Jones identified the Claimant as a person with some development needs and thus in need of a performance improvement plan.  There is a suggestion from the Claimant there was some form of quota required for individuals to be put on performance improvement plans.  The Respondents deny there was ever any such quota, merely a request from Human Resources to properly differentiate employees in the different grades, as appropriate.  The Tribunal accepts this and heard no evidence to persuade us otherwise.”

23.	The Tribunal considered the Claimant’s application for a master’s course, but that is not pursued following an out of time ruling.

24.	On her appraisal the Claimant raised a number of issues. Nigel Jones and she met.  The Claimant had been given a performance improvement plan (“PIP”).  It is there in order, as it is said, to improve by a detailed plan the performance of an employee where it is thought that this is necessary.  The Claimant had scored 4, which means generally satisfactory, but that does not preclude issuing a PIP.  The Tribunal found that PIPs had been issued to a white female and a white male, although it mistook the name Owen Chambers for Mark Harris, the relevant white male, and held there was nothing discriminatory.  At the time these issues were being raised the Claimant said nothing about race, sex or victimisation.

25.	The Claimant contended that she raised issues about a level transfer and in due course further examination was conducted into her complaints about being allocated to a PIP.  The Tribunal said this: 
“His treatment would have been exactly the same for any hypothetical white male or female comparator and further the Tribunal cannot infer that there was any form of victimisation in his treatment of the Claimant. …
Although Mr Jones may have been regarded as a poor people manager, the Tribunal accepted that he did not in any way victimise the Claimant.”

26.	The Claimant does not take no for an answer from her managers, from the Employment Tribunal (see its para 8.2 above), or indeed from us, since we have throughout this extended hearing given her directions as to its scope and as to what matters are relevant on appeal.  This is evident in the number of occasions on which the Claimant’s management told her that her approach was inappropriate, constantly sending emails and raising large numbers of issues, and the tone in which they were raised. The Tribunal found she engaged in self deception. Its view was this:
“The Claimant is seemingly unable to accept that she had shortcomings in the development of her role, albeit shortcomings in only some areas.”

27.	That was an account given by the Tribunal as a result of its earlier findings that issues which she raised had nothing to do with race, sex, or victimisation.  That is made clearly in respect of the decision to keep her on a PIP and an associated programme called the development performance review. There was nothing in her appraisal keeping her on the PIP such as to give grounds for race or sex discrimination or victimisation.

28.	It then turned to the way in which the Claimant’s grievance had been handled.  The history of the grievance is this: she submitted it on 20 June 2003 and again in October 2003, the latter being the main grievance.  An answer was not given on this for a year and when the Claimant sought to appeal, effectively the matter was held in abeyance.

29.	The Tribunal found on this specific allegation of breach of contract that this was an unacceptable period of time, at least in respect of the year waiting for a response, but held that this was not an act of victimisation.  The Tribunal took this view because the main criticism had been levelled at Miss Bertrand and she was an impressive, candid, clear and precise witness.

30.	That then led the Tribunal to decide whether there was an unreasonable delay, and so a breach of contract, in dealing with her appeal.  The Tribunal held that the grievance was put on hold, for the Claimant was in negotiations over accepting a severance package offered across the board to employees leaving, which indeed she did with effect from 31 May 2005.

The legal principles
31.	An Employment Tribunal is there to deal with the issues which must be decided on the case put forward by the Claimant.  In a discrimination case it is good policy to hold a CMD and for the decisions made at the CMD to be followed at the full hearing.  A Tribunal must give reasons sufficient to show to the parties why they have won or lost but need not decide every single issue of fact in the case.

32.	A case which is advanced on the grounds of perversity in the Tribunal’s reasoning must meet the test in Yeboah v Crofton [2002] IRLR 700 CA: there must be an overwhelming case that the Tribunal was wrong.

33.	As to review, the grounds are set out in Rule 35, controlling entry through the gateways of the interests of justice, absence of a party, and so on.  Inasmuch as new evidence may be adduced, there is a similar but not identical test in the EAT Rules.  Our Practice Direction para. 8.1 sets out that the test in Ladd v Marshall [1954] 1 WLR 1489 must be met, that is, that the evidence could not have been obtained with reasonable diligence for use at the ET hearing; it is relevant and would probably have had an important influence on the hearing and it is apparently credible.

The Claimant’s case and conclusions
34.	With those principles in mind, we look at the Claimant’s argument.  She has gone to considerable length to produce in writing a careful notice and letter of appeal, written submissions in her skeleton, and a very substantial volume of supporting documents.  She appeals against the substantive and the review Judgments. The Respondent has gone through the allegations in turn, line by line.  There are before us some 300 pages; before the Tribunal there were some 1,600.

35.	Apparently the judgment was given orally on the last day of the hearing.  There were no written submissions by either representative.  The Claimant has raised about 40 individual grounds of appeal.  We propose to take a broad approach to the contentions and we will use her headings.

1.	A Misunderstanding or Misinterpretation of the Law
36.	In this, the Claimant contends that the Tribunal has failed to deal with her breach of contract claims which the Tribunal specifically earmarked at the outset of its Judgment.  It is clear the Tribunal upheld the Claimant’s claim as a breach of contract in not following the grievance procedure speedily enough.  The Tribunal referred in the CMD to further particulars which had been produced by the Claimant and these identify the specific nature of the breach of contract claims advanced.  Paragraph 54 deals with Miss Bertrand’s handling of the matter in the first instance and paragraph 58 with the issues on appeal, each of which is said to be  inaction constituting a breach of contract.  As to the first, the Claimant succeeded; as to the second, the Tribunal makes no specific finding.  As the President observed in his notes on his sift of this appeal, it may be that this was implicit.  We hold it was and it is clear from the reasoning that the Tribunal acknowledge that the delay in handling the appeal was attributable to the Claimant’s negotiating with management over her severance package (see paragraph 6.56 of the Judgment).

37.	As to allegations of breach of contract in relation to the individual claims of race and sex discrimination, the answer is simple; each one of these can be a breach of contract, but since they were all dismissed a breach of contract does not arise.  The logic of the Claimant’s case as she put it to us was that these were allegations of discrimination.  We fully understand that a finding of discrimination can be a breach of contract, as is clear from the judgment of the EAT in The Law Society v Bahl [2003] IRLR 640 per Elias J. But when all the claims of discrimination have been dismissed it follows from the Claimant’s case that claims of breach of contract based on them will fail too.  So these allegations cannot be pursued.  

38.	The Claimant contends that she raised issues of safe working environment, but these are not mentioned in the CMD and therefore could not have gone further.

39.	The Claimant is complaining that she has not yet had any directions for a remedy.  That would be pointless while this appeal is on foot. We will direct that a remedy now take place.

2.	A  Perverse Decision and Misunderstanding of the Facts
40.	This relates to a contention by the Claimant that Miss Gannon had made complaints against Mr Ginn of the consumer finance team.  The Claimant contends that in cross‑examining her, Mrs Townsend had asserted that there were no complaints against Mr Ginn, whereas the Claimant contends she has discovered that Miss Gannon did make complaints.

41.	Mr Giffin QC says from his note that Mrs Townsend had raised the issue of claims against Mr Ginn or his team, and so Miss Gannon’s evidence is important.  Miss Gannon apparently raised a claim and it was settled.  It is said that this therefore would disturb the judgment of the Tribunal that the management all gave reliable evidence.

42.	The Respondent has not seen this response of Mr Giffin and we accept the Respondent’s case that a very high standard is required for this allegation of perversity to survive.  The point is that the only evidence given about it was by the Claimant.  This is not a criticism of evidence by a solicitor on oath, it is of how she cross‑examined. As Mrs Townsend says in her written submissions, any issue of professional misconduct is outside the scope of this appeal.  In any event, the Claimant could have obtained evidence from her and instructed her counsel to seek to introduce Miss Gannon into the proceedings.

43.	This is one of a number of places where the Claimant criticises her counsel.  We of course cannot investigate what was said between them, unless the Claimant says to us that she is prepared to disclose that, but on four or five occasions in today’s hearing she does make criticism of her counsel.  It seems to us that each of these is based upon a decision made by leading counsel as to forensic matters; what issues should be raised, what evidence called or documents relied on, what questions should be asked in cross‑examination, submissions and so on.  The Claimant raises criticisms now of the way in which evidence was marshalled, but those are matters which were, in our judgment, available to the Claimant to discuss with her counsel. The Claimant is not to be given further bites at this particular cherry. Of the four or five issues we identified, only two have been put to Mr Giffin for his further comments; the Miss Gannon issue is one.

3.	A Misunderstanding or Misinterpretation of the Law
44.	This is to do with the way in which the Tribunal considered the application of race discrimination law.  It reflects on an oral exchange during the course of the hearing between leading counsel and the Judge.  This indicates possibly an incorrect approach taken by the Judge as to discrimination. However, when Mr Giffin QC was asked about two matters, this was not one of them.  This would be very relevant; it indicates his direct involvement in an exchange with the court.  He could have given evidence about this for the purpose of today, but he was not asked, or at least he gave us none.  

45.	During the course of today’s hearing we reminded Miss Palihakkara on seven occasions that our remit was the reasons of the Employment Tribunal as written.  Only if a Tribunal turned 180 degrees between its oral and written reasons, would we be inclined to intervene.  The written reasons disclose nothing of these exchanges or misdirection as to the correct approach to the law, and we will therefore reject this ground.

4.	A Misunderstanding of the Facts, et cetera
46.	19 separate issues are raised by the Claimant. We will deal with this matter holistically.  The starting point has to be the high test set by the Court of Appeal in Yeboah v Crofton.  These are issues of fact and appreciation, as to which we accept the Respondent’s written submissions in full.  Again, broadly speaking, the approach of the Respondent is to indicate that each of the matters raised by the Claimant concerns an interpretation of the evidence and findings of fact.  Only one gives us cause for concern, and that is the suggestion that the Claimant had raised not just a hypothetical comparator but a real one. 

47.	As a matter of fact the Tribunal does deal with some real comparators and finds that the Claimant was not treated less favourably than them.  For example, white persons were put on a PIP.  There are other indications within the judgment of individuals being compared with the Claimant.  However, the Tribunal did look for a hypothetical comparison.  It is true that the CMD does not say who the direct individual comparators are to be, and on the basis that the CMD was followed, we hold that the Tribunal has committed no error in focusing on a hypothetical comparator and not on individuals. But since individuals in unsuccessful comparisons are sometimes relevant in considering the hypothetical, the Tribunal has made sufficient findings to differentiate either on the facts or by reference to a logical conclusion, the way in which cited comparators in fact were treated.

48.	We also consider what is said to have been said by Mr Ginn in cross‑examination, but again this relates to matters which are entirely factual.  The material was before the Employment Tribunal in relation to pay data, comparative data, mentor information and so on.  In short, accepting as we do the Respondent’s submissions on this, these matters all relate to the appreciation of the facts by the Employment Tribunal, and give rise to no legal ground.

5.	New Evidence
49.	This relates again to Miss Gannon; we have dealt with her and this matter goes no further.  We would reject an application to bring new evidence before the Employment Appeal Tribunal, applying the Practice Direction.  She was available to be called. We would also hold that the Judge committed no error of law in excluding her material in his refusal to allow a review.

6.	An Element of Unbiased Handling of My Case by the Tribunal
50.	This relates to medical evidence.  We take it the Claimant means “biased”. In fact, this is a misunderstanding.  The Employment Tribunal did not disbelieve her medical evidence.

7.	New Evidence
51.	This relates to changes in the PIP policy by the Respondent.  In our judgment this fails the same test as the Gannon material.  The Tribunal had fully in mind (see its paragraph 6.10) the way in which the PIP process was interpreted by the Respondent.  New information about a change in performance process in May 2008 is not relevant.  As to mentor information this could have been obtained prior to the hearing, and comments by managers are said to be included in an email sent by the Claimant. It is axiomatic that that email could have been produced by the Claimant.

8.	A Misunderstanding of the Facts, etc
52.	This relates to the pay data and, as she says, facts not law.  It is true that the Claimant has issues to raise about the facts set out in the documents, but there was a good deal of material and this case did not fail on the basis of the statistical material said to be available or missing.  However it is put, this case failed because of the overwhelming impression given to the Employment Tribunal that there was no discrimination.

9.	New Evidence
53.	This is about the Claimant’s character.  Deeply dismayed by the central findings against her, the Claimant wishes to put the record straight.  She has produced a number of testimonials about her character.  We have no reason to doubt any of this, but it does not assist us in determining whether the Tribunal erred in law.  It formed an impression of the Claimant; it gave cogent reasons why her evidence was found to be evasive and why, in one respect, she fabricated the material.  Those are issues for it and not for us.  So even if we were inclined to allow as an act of grace the character material, it does not assist us in determining whether the Tribunal committed an error of law.

10.	New Evidence
54.	This concerns evidence about two new managers.  The Claimant’s case must fall on her own acceptance in her grounds of appeal that the information was available at the date of the hearing, and she did not include it.  As the Respondent correctly submits, had it been relevant, her counsel would have adduced it.

Disposal
55.	In those circumstances, none of the grounds of appeal succeeds.  We would very much like to thank Miss Palihakkara for assisting us during this greatly extended preliminary hearing, and we are sure that she has made all of the points which she needs to make, even though she has herself found this a very stressful occasion.

56.	This case is going on to remedy so we will ask the Tribunal to give directions for a remedy hearing.