United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR TIMOTHY BRENNAN (One of Her Majesty's Counsel) Instructed by: Messrs Hammonds LLP Solicitors 7 Devonshire Square Cutlers Gardens London EC2M 4YH
For the Respondent	MISS RACHAEL LEVENE (of Counsel) Instructed by: Messrs Simpson Millar LLP Solicitors 27 St Paul's Street Leeds LS1 2JG


 


SUMMARY

RACE DISCRIMINATION

Inferring discrimination

Burden of proof

UNFAIR DISMISSAL

Procedural fairness/automatically unfair dismissal

The Employment Tribunal misdirected themselves in applying Section 54A of the Race Relations Act 1976. They erred in holding that the burden of proof passed to the Respondents on the Claimant establishing a prima facie case that they could have rather than had discriminated against her on grounds of race (Madarassy v Nomura at para 55 citing Igen v Wong para 28). Further the Employment Tribunal erred in the basis upon which they inferred race discrimination. Finding of race discrimination set aside and claim remitted for rehearing before a differently constituted Employment Tribunal.

The Employment Tribunal erred in holding that the otherwise fair dismissal for redundancy was unfair because the Respondents were in breach of Section 188 Trade Union and Labour Relations (Consolidation) Act 1992 although the breach had caused the Claimant no loss and in respect of which she received a protective award. Finding of unfair dismissal set aside.


 


THE HONOURABLE MRS JUSTICE SLADE

1. The First Appellant is a well known firm of solicitors and the other three Appellants are partners in the firm's Leeds office. The Respondent to the appeal is a solicitor. We will refer to the parties by their names or, where appropriate, to the Appellants collectively as 'the Appellants'. References below to paragraph numbers are to paragraphs in the judgment of the Employment Tribunal unless otherwise indicated.
2. Hammonds LLP ('Hammonds') and three partners in Hammonds appeal from the judgment of an Employment Tribunal ('ET') entered in the Register on 28 October 2009 that they had discriminated against Ms Mwitta on grounds of her race by not providing her with such work as she was capable of performing. Hammonds were held liable for the acts of the partners. The ET rejected the claim that Ms Mwitta was dismissed on grounds of her race. It also rejected her claim that two additional partners had discriminated against her by reason of her race by depriving her of work. They upheld Ms Mwitta's claim that Hammonds had breached the provisions of Trade Union and Labour Relations (Consolidation) Act 1992 ('TULR(C)A') section 188, by advancing from 15 to 1 December 2008 the effective date of termination of her employment for redundancy Hammonds had failed to start consultations in time. The ET made a protective award in her favour of thirty days' remuneration. The ET held that Ms Mwitta had been unfairly dismissed.
3. The Appellants appeal from the decision that they had discriminated against Ms Mwitta on grounds of her race by not providing her with work. Hammonds appeal from the decision that they had unfairly dismissed Ms Mwitta.
4. Mr Timothy Brennan QC on behalf of the Appellants contended that the ET erred in law in finding that they had discriminated against Ms Mwitta on grounds of her race. He submitted that the ET had erred in law by failing properly to apply the burden of proof in Race Relations Act 1976 ('RRA') section 54A as explained in Madarassy v Nomura [2007] ICR 867 in holding that Ms Mwitta had established a prima facie case of race discrimination so as to transfer the burden of proof to the Appellants to establish a non-discriminatory reason for the treatment of which complaint was made. It was also said that the ET failed to make findings of fact sufficient to support a conclusion that Ms Mwitta had proved on a balance of probabilities a prima facie case that on racial grounds she had been less favourably treated than her comparators. Further, Mr Brennan submitted that if the ET did not err in holding that the burden of proof had shifted to the Appellants to establish that the reason for the difference in treatment of Ms Mwitta was not her race, the ET misdirected themselves or came to a perverse conclusion in deciding that the Appellants or any of them had not discharged that burden.
5. As for the finding of unfair dismissal, Mr Brennan contended that the ET erred in reasoning that because Hammonds were in breach of the collective consultation requirements of Trade Union and Labour Relations (Consolidation) Act 1992 ('TULR(C)A') they were bound to hold the dismissal of Ms Mwitta unfair. Further the ET erred in relying on Hammonds' erroneous assertion that Ms Mwitta had consented to advancing the date of termination of her employment from 15 to 1 December 2008 and on an event after the dismissal, the late admission that the firm had been mistaken that such consent had been given, to support their finding of unfair dismissal.
6. Ms Rachel Levene for Ms Mwitta contended that the ET did not err in law or reach perverse conclusions in deciding that a prima facie case of race discrimination had been established. Nor did the ET err in concluding that the Partners had not proved an adequate non-discriminatory explanation for their treatment of Ms Mwitta. Accordingly the ET did not err in concluding that the Appellants had discriminated against Ms Mwitta on grounds of her race.
7. As for the appeal from the finding that Hammonds had unfairly dismissed Ms Mwitta, Ms Levene contended that the ET did not err in upholding her claim on the basis that she was dismissed within the protected period of the ET award for breach of TULR(C)A when she thought that she was still employed.

The judgment of the Employment Tribunal

Summary facts

8. Ms Mwitta joined Hammonds as a newly qualified solicitor on 11 September 2006. She is of mixed race. Her father is Tanzanian and her mother Russian. She joined Hammonds' Corporate Strategy and Finance Department ('CSF') in Leeds. Hammonds have various categories of Junior solicitors ranging from Senior Associates who are just below Partner level through Associates to Lawyers. Ms Mwitta was engaged as a Lawyer. There were four solicitors in the Lawyer pool for selection for redundancy at the Leeds office: Jo Bell, Amy Fairfoull, Hugo Moore and Ms Mwitta. The ET accepted that another Junior lawyer, Joy Irving, mentioned in their judgment was not a comparator as she had greater post qualification experience than Ms Mwitta however they considered that her treatment could be compared with that of Paul Mann although he was in a different pool for selection for redundancy.
9. There were five Partners in the CSF Department in Leeds. Ms Mwitta was the only member of the Department who was non-white. Work is received initially through one or more of the Partners. It will be then for the Partners to allocate one or more Junior lawyers to carry out the work.
10. The ET made the following findings as to how work was allocated:

"16. It appears from the evidence that there are four principal factors that govern the allocation of work.

17. Firstly, if an individual Junior Lawyer has been involved in the obtaining of the work (either by preparation of a Tender document or some involvement in a pitch) then there might be some expectation that, if and when the work arrives, that Junior Lawyer will be part of the relevant team.

18. Secondly, and more importantly, if a Junior Lawyer has worked with the client before, so that there is an existing client relationship, it will be expected that that Lawyer will retain that relationship in work on any future projects. That practice is defended on the basis that clients wish to work with Lawyers whom they know, and that client satisfaction and retention is a vital factor in the commercial success of a department of this sort.

19. Thirdly, the appropriate level of experience and seniority is vital. Each job is assessed by a Partner in terms of the skills required. If the Lawyer does not have the appropriate skill-set and/or experience, he or she cannot be allocated to the position. By way of example, Mr Jones, the Fourth Respondent, who specialises in Private Equity work, took the view that the Claimant did not have relevant skills and experience in that work and largely justified his failure to provide the Claimant with more than one piece of work by reference to the Claimant's lack of experience in that field.

20. Fourthly, all parties referred to the element of serendipity. That was explained as meaning that a particular fee-earner might be available to work on a particular job as and when it came in, either because that fee-earner had no work to do, or happened to be seen in the corridor, or happened to have asked for work from one of the Partners. In relation to that last issue, the individual Respondents were quite clear that they did not think it necessary to use any system which, all other things being equal, allocated work equally or fairly between the Lawyer fee-earners. From their point of view, the fairness of distribution was not a matter which required any attention or individual involvement."

11. The ET found that measurement of progress within the Department was by reference to utilisation rates and annual appraisals. Between September 2006 and April 2007 the CSF Department was very busy and Ms Mwitta and her peers achieved or exceeded their targets.
12. The ET found that:

"8. During the spring and summer of 2008, it was apparent to the Claimant and her fellow Junior Lawyers that the economic downturn was having a substantial effect on the First Respondent firm and upon the amount of work available individually to each of them. The Claimant's primary complaint in these proceedings, however, is not that there was less work available to the Department as a whole (that not properly being a matter for an Employment Tribunal), but that the allocation of work as between her and her peers was discriminatory of her, and in particular, discriminatory of her by reason of her race. The greater part of the evidence we heard was on that issue."

13. The ET dismissed Ms Mwitta's complaints that two partners did not allocate work to her because of her race. They accepted their explanations for failure to do so.
14. The ET made the following findings of fact upon which they based their conclusion that three partners had unlawfully discriminated against Ms Mwitta on grounds of her race.
15. Mr Glover was Ms Mwitta's line manager. He contended that he gave Ms Mwitta seven pieces of work between the Autumn of 2007 and September 2008. The ET noted that one of those pieces of work occupied only 1 hour 12 minutes chargeable time. Mr Glover gave explanations for allocating work to Paul Mann and Hugo Moore who were at the same level as Ms Mwitta and to Jo Bell who was a Senior Associate.
16. The ET held at paragraph 29:

"There is a clear pattern of Mr Glover providing work to Paul Mann and Hugo Moore. We are unable to accept Mr Glover's explanations as to why this occurred on such a regular basis, to the exclusion of the Claimant. That is particularly so in the light of Mr Glover's clear acceptance of the relative inefficiency of Mr Moore and the corresponding ability and efficiency of the Claimant. The difference in capability of those two persons would tend to suggest that the Claimant should have received more work than Mr Moore, rather than less. We make that comment in the light of the numerous statements of the need to carry out work efficiently, so as to retain clients and maximise profits. Overall, Mr Glover had, we find, a substantial amount of work which he could have provided to the Claimant."

17. Regarding the complaint against Jonathan Jones, the ET accepted that his work was in Private Equity. The ET recorded that he was of the view that Ms Mwitta did not have the skill set to carry out the work involved. They accepted that the work required the Lawyer to be involved to a greater extent in the transaction and that there was a distinction between this type of work and the work carried out by Ms Mwitta. The ET observed:

"It did not however occur to him that the Claimant might learn the appropriate skills by sitting in on a particular job."

18. The ET found that when Mr Jones allowed Ms Mwitta to carry out a job for him he was most unimpressed by her performance. She had forwarded to a client a document prepared by another member of the firm without checking it first. No harm was done and Ms Mwitta had not been asked to check the document. The ET agreed with the characterisation by Ms Levene of Mr Jones' approach to the matter as 'irrational'.
19. Further, the ET observed that there was no satisfactory explanation from Mr Jones as to why the Claimant was not invited to a marketing event at York Races. Jo Bell and Amy Fairfoull were invited. The ET observed 'we can see no reason why the Claimant could not have been invited'.
20. The ET accepted that another partner, Mr Pike, against whom the complaint of race discrimination succeeded, 'during the relevant period had other duties which meant that his fee-earning opportunities (and consequently his ability to provide work for Junior Lawyers) were limited.' However the ET accepted that there was some work which he could have provided for Ms Mwitta. In respect of what the ET described as 'the principal issue' in relation to Mr Pike, the ET did not accept as was alleged by Ms Mwitta that she was only given work on a tender because Mr Pike believed Hammonds would not be awarded the contract.
21. The ET considered that there was no reason why Ms Mwitta would not have been capable of work given by Mr Pike to Ms Robinson who the ET considered to be an appropriate comparator and when she left, to Joy Irving. Mr Pike accepted that work given to Hugo Moore could have been carried out by Ms Mwitta. He explained that work for another client was given to Paul Mann because he felt that Mr Mann might get on better in terms of personality. Mr Pike accepted that Ms Mwitta was given no opportunity to work for a 'bread and butter' client.
22. During the summer of 2008 the Partners of Hammonds concluded that it would be necessary to make substantial redundancies. They set out proposals for collective consultation. Because of the numbers of redundancies involved section 188 TULR(C)A had to be complied with.
23. Ms Mwitta was appointed an employee representative for the purposes of the statutory consultation. The ET held:

"55. We consider that the First Respondent complied with such standards as were appropriate and reasonable in the collective consultation process and in the method it was to adopt to select individual Solicitors and clerical staff for redundancy.

56. In the case of the CSF Department in Leeds, three of the four Lawyers within the Claimant's peer group were to be selected leaving only one person. The person who scored highest would retain his or her position; the others would be dismissed, unless they were redeployed."

24. As a result of the selection process, Hammonds decided to retain Jo Bell. Ms Mwitta, Ms Fairfull and Mr Moore were to be made redundant subject to redeployment.
25. It was the original intention of Hammonds to dismiss redundant employees with effect on 15 December 2008. Part way through the consultation process they decided to offer an enhanced redundancy package giving two weeks' pay for the period between 1 and 15 December 2008 tax free on the basis that employment ended on 1 December 2008.
26. At a meeting on 28 (or 27) November 2008 with Ms Mwitta, the bringing forward of the termination date of her employment was discussed. Agreement on termination was made subject to a compromise agreement. Such an agreement was not entered into.
27. It was admitted on behalf of Hammonds at the hearing before the ET that no concluded agreement was reached with Ms Mwitta on 28 (or 27) November 2008 to bring forward the termination date to 1 December 2008.
28. Despite the failure to agree on advancing the date of termination of Ms Mwitta's employment, as a result of what was accepted by the ET to be an innocent mistake, on 1 December 2008 Hammonds sent Ms Mwitta a letter terminating her employment on that date. She did not receive the letter until 13 December 2008.
29. The ET found that whilst Ms Mwitta may have valid concerns in respect of the approach to her work by various individuals which they had dealt with in the course of considering the race discrimination claim, they concluded at paragraph 71 that these did not make any material difference whatsoever to her selection for redundancy.

Reasoning and Conclusions of the Employment Tribunal

Race discrimination

30. The self direction which the ET gave themselves in considering the complaints of race discrimination is set out in paragraph 76 of their judgment. The application of that direction to the facts is set out in paragraphs 77 to 79.
31. At paragraph 76 the ET held:

"…. the various guidance, with which the Tribunal is familiar, in such cases as Madarassy v Nomura International Plc [2007] IRLR 246 applies; we accept Ms Levene's summary of that case at paragraph 28 of her submissions. …"

32. In paragraph 28 of the submissions referred to it was stated that:

"In Madarassy v Nomura International Plc [2007] IRLR 246 the CA clarified the law and affirmed the guidelines in Igen v Wong. Essentially, the CA accepted a fluidity in taking evidence from the respondent about the first stage and whether the presumption should be raised. Second, the CA emphasised the need for some restriction on what can count evidentially at the first stage of raising the presumption. 'Could conclude' it is said, meant 'a reasonable tribunal could properly conclude'"

33. At paragraph 77 the ET referred to the contention in paragraphs 31 to 35 of the skeleton argument on behalf of Ms Mwitta that 'there is evidence upon which the Tribunal could be satisfied at the first stage of the enquiry, that a prima facie case has been made out.' The ET held:

"There is a very great disparity, both in absolute terms and percentage terms, between the hours worked by the Claimant and those worked by her comparators. We accept that those statistics show a pattern of marginalisation."

34. The ET further held:

"78. We have applied the first stage test not only to the First Respondent (as employer of the Claimant) but to each of the individual Respondents. Having done so, we have concluded in relation to each of Messrs Glover, Jones and Pike (the Third, Fourth and Fifth Respondents) that a prima facie case is raised and that we should apply the statutory test within section 54A of the 1976 Act. That requires, of course, that we should look to each of those individual Respondents for an explanation of why they acted as they did. Applying the statute, it is for each Respondent to prove that they did not commit an act of discrimination.

79. ….. We do not here rehearse our various criticisms of the three individual Partners, but repeat and adopt them as part of our inability to accept their various explanations. We find that those Partners did not provide cogent evidence, such as referred to in Madarassy, in support of their respective explanations. Accordingly the Tribunal is required to uphold the complaints and we do so. We find that the First, Third, Fourth and Fifth Respondents unlawfully discriminated against the Claimant on racial grounds by subjecting her to a detriment, namely in circumstances where, as each accepted, any work which the Claimant could carry out must necessarily be obtained from those Partners."

Breach of TULR(C)A section 188 and Protective award

35. The ET held that Hammonds were in breach of section 188 TULR(C)A. The breach was constituted by not commencing consultation 30 days before 1 December 2008 the date on which the first of the dismissals took effect, rather than 30 days before 15 December 2008 the originally proposed date. When considering the amount of a protective award the ET held at paragraph 83:

"…. The First Respondent sought to comply with the requirements of the 1992 Act by initiating collective consultation to a standard which we would expect of a large firm of Solicitors. It cannot be criticised, save in respect of the decision of Ms Morgan (with or without the help of Mr Glover) to send a dismissal letter on 1^st December 2008. That, in our view, can be classified as mere incompetency on the part of Ms Morgan rather than something more sinister."

36. The ET considered that this 'is a substantially less serious a default than many with which we have dealt.' The ET made a protective award for a protected period of 30 days.

Unfair dismissal

37. The ET dismissed Ms Mwitta's claim that her dismissal was on grounds of race. She was dismissed by reason of redundancy. The ET considered whether the dismissal for that reason was fair within the meaning of the Employment Rights Act ('ERA') section 98(4). The ET held:

"87. … It seems to us that that claim can be decided on a very short point. The First Respondent's overall processes, by way of the collective and individual consultation, up to but not including the meeting on 28^th November 2008, are exactly those we would expect from an employer of this size and with these administrative resources. The First Respondents acted not only reasonably but to the highest possible standards. ….. Overall, both the selection criteria and the way in which the scores were applied seemed to us to be entirely reasonable.

88. However, we cannot find that any employer which is in breach of the provisions of Section 188 of TULRA, in effecting a dismissal within a protected period, also acts reasonably. In our view, it must follow that, where an employer is in breach of a relevant rule of law, it also must act unreasonably. It is also the case, (as part and parcel of the same argument) that the First Respondent treated the Claimant's approval in principle to the bringing forward of her termination date (but subject on both sides to the completion of a Compromise Agreement) as an absolute agreement to do so. Whilst that might be excusable in relation to a small corner shop, it is not excusable or reasonable in the case of a large multi-national law firm. The unfortunate failure of Mr Glover, in evidence, to accept that short point and the very late admission by the First Respondent, in Mr Anderson's admissions, only adds to the unreasonableness of that position.

89. We emphasise that the only part of the dismissal process upon which the First Respondent acted unreasonably was the attitude taken at the meeting of 28^th November (or perhaps immediately after it), rather than any other aspect of the very detailed process. Had the First Respondent not taken that view and not sent the 1st December 2008 letter, we would have found that this dismissal was entirely fair."

38. In giving their provisional indication on remedy the ET had considerable sympathy with the argument that Ms Mwitta would have been dismissed in any event. Applying the guidance in Polkey v Dayton Services Limited [1987] IRLR 503 the ET considered that the reduction in any compensatory award was likely to be 100%.
39. At paragraph 95 the ET held:

"We have no criticism of the remainder of the relevant procedure. It must follow that, if the First Respondent had not treated the Claimant as dismissed on 1 December 2008, she would have been fairly dismissed on 15 December 2008. We understand that the Claimant was paid for that interim period, so that this may well be (we express no final view) a case in which there is no financial loss of any nature arising from the finding of unfair dismissal. …."

The relevant statutory provisions

Race Relations Act 1976

40. Section 1

"(1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if -

(a) on racial grounds he treats that other less favourably than he treats or would treat other persons;'

Section 54A

…….

(2) Where, on hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent -

(a) has committed such an act of discrimination or harassment against the complainant, or

(b) is by virtue of section 32 or 33 to be treated as having committed such an act of discrimination or harassment against the complainant,

The tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed, that act."

Trade Union and Labour Relations (Consolidation) Act 1992

41. Section 188

"(1) Where an employer is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less, the employer shall consult about the dismissals all the persons who are appropriate representatives of any of the employees who may be affected by the proposed dismissals ……..

(1A) The consultation shall begin in good time and in any event -

(a) where the employer is proposing to dismiss 100 or more employees as mentioned in subsection (1), at least 90 days, and

(b) otherwise, at least 30 days,

before the first of the dismissals takes effect.

(8) This section does not confer any rights on a trade union, a representative or an employee except as provided by sections 189 to 192 below."

Employment Rights Act 1996

42. Section 98

"(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show -

(a) the reason (or, if more than one, the principal reason) for the dismissal, and

(b) that it is either a reason falling within subsection (2) ….

(2) A reason falls within this subsection if it -

…….

(c ) is that the employee was redundant, or

……..

(4) In any other case where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -

(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case."

Now repealed section 98A

"(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if -

(a) one of the procedures set out in Part 1 of Schedule 2 to the Employment Act 2002 (dismissal and disciplinary procedures ) applies in relation to the dismissal,

(b) the procedure has not been completed, and

(c) the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements."

Submissions of the parties

The Appellants

43. Mr Brennan submitted that the ET appear to have misunderstood or misapplied the guidance in Madarassy v Nomura International plc [2007] ICR 867 at paragraph 55 as it relates to the reversal of the burden of proof in RRA section 54A(2). He explained that his core point was that the findings of fact made by the ET might justify a conclusion that Hammonds and the individual partners could have discriminated against Ms Mwitta on grounds of race. However the findings of fact could not support a conclusion that Hammonds and the individual partners did commit discrimination on grounds of race. Mr Brennan contended that instead of determining whether Ms Mwitta had established facts from which it could properly conclude that Hammonds and the individual Partners had discriminated against her on grounds of race the ET proceeded on the basis that the burden of proof shifted to them if Ms Mwitta established facts on which they could conclude that the respondents could have committed acts of race discrimination. It was not sufficient to shift the burden of proof to establish facts from which a tribunal could conclude that the respondent could have committed such an act.
44. Mr Brennan relied on paragraph 56 of the judgment of the Court of Appeal in Madarassy in which Mummery LJ pointed out that the Court of Appeal in Igen Ltd v Wong [2005] ICR 931 had rejected the argument that it was enough to shift the burden of proof to the respondent in accordance with RRA section 54A for the claimant to establish a difference in status and a difference in treatment between the complainant and the comparator. Those bare facts without more are not sufficient material from which a tribunal could conclude that the respondent had committed an act of unlawful discrimination.
45. Mr Brennan relied on Bahl v The Law Society [2004] IRLR 799 at page 809 paragraphs 100-101 to contend that unreasonable treatment does not, without more, justify an inference of discrimination on grounds of race.
46. It was submitted that the question in a race discrimination claim will always be whether the claimant was subject to a detriment on grounds of race. Section 54A does not affect that question.
47. Mr Brennan contended that the totality of the reasoning of the ET on its approach to the claim of race discrimination is contained in one sentence in paragraph 76 of the judgment. The ET states that they are familiar with the guidance in such cases as Madarassy and accept the summary of that case at paragraph 28 of the skeleton argument on behalf of Ms Mwitta. At paragraph 77 the ET failed to say what they meant by a 'prima facie' case. They did not refer to its ingredients.
48. Mr Brennan contended that the ET cannot have applied the correct test in determining whether Ms Mwitta had established a prima facie case so as to engage the reverse burden of proof applying section 54A. The facts found by the ET did not support such a conclusion. The ET found that there was a very great disparity both in absolute and percentage terms in the work allocated to Ms Mwitta and her comparators and accepted that the statistics showed a pattern of marginalisation. It was said that either the ET did not address their minds to or, if they did, had no basis for concluding that Ms Mwitta had established a prima facie case that the reason for the difference in her treatment was her race. It was said that put at its highest the evidence could have given rise to a possibility that race could have been a factor in the allocation of work to Ms Mwitta not a possibility that it was such a factor.
49. It was submitted that even if the ET had not erred in concluding that the onus shifted to each of the Appellants to prove that there was no race discrimination in their treatment of Ms Mwitta, they misdirected themselves or came to perverse conclusions in deciding that they had failed to do so.
50. In respect of Mr Jones, it was said that the findings of fact did not support a rejection of his reasons for his treatment of Ms Mwitta. Whilst the ET characterised his view of Ms Mwitta's performance as 'irrational' they did not disbelieve him. As for failing to invite Ms Mwitta to the marketing event at York races the ET failed to state whether there was room or a need for more than two individuals to attend or why Mr Moore, another comparator, was also not invited to attend. In summary Mr Brennan submitted that there was no basis upon which the ET could properly conclude that Mr Jones had discriminated against Ms Mwitta on grounds of her race.
51. Mr Pike had been involved in the recruitment of Ms Mwitta. It was common ground that Ms Mwitta was the only one of the four comparators to whom Mr Pike gave any work at all. When considering the allocation of work by Mr Pike to a more senior lawyer than Ms Mwitta, Joy Irving, the ET observed that because the work had previously been done by a lawyer at Ms Mwitta's level 'it would have been more logical, in our view, for the Claimant to have been provided with this work'. They could think of no reason why Ms Mwitta should not have been equally capable of doing this particular work. Had Ms Mwitta been involved rather than Ms Irving, her utilisation rate would have been dramatically increased.
52. Mr Brennan pointed out that the ET did not disbelieve Mr Pike when he gave his reasons for not giving certain work to Ms Mwitta. As for criticising Mr Pike for giving work to Joy Irving rather than to Ms Mwitta, Ms Irving was senior to Ms Mwitta and was not a comparator. Further, it was a matter for Mr Pike whether he allocated work to a more senior or a more junior member of staff. The question for the ET was not whether it would have been 'more logical' for Ms Mwitta to be given the work but whether the reason given by Mr Pike for her not being given the work was not the true reason.
53. The ET accepted that Mr Glover provided Ms Mwitta with seven pieces of work. It criticised Mr Glover for failing to allocate work to Ms Mwitta and for allocating it to others. Mr Brennan contended that the ET's approach might justify a conclusion that work was allocated unequally but there was no material which could support a conclusion that it was allocated unlawfully on the grounds of race.
54. The allegations of race discrimination against Hammonds are based on their vicarious liability for the acts of the Partners. No separate independent allegation was made against the firm.

Unfair dismissal

55. It was submitted on behalf of Hammonds that the ET erred in treating a breach of TULR(C)A section 188 as automatically rendering the dismissal of Ms Mwitta unfair. The remedy for breach of section 188 is provided by TULR(C)A. It does not give rise to a further category of automatically unfair dismissal under the ERA. Further the making of a late admission that Hammonds were mistaken in treating Ms Mwitta as having agreed to bringing forward the date of termination of her employment cannot add 'to the unreasonableness' of the dismissal as was found by the ET. Events after dismissal do not affect its reasonableness within the meaning of ERA section 98(4). Having found the dismissal fair in all material respects the ET erred in law in failing to apply ERA section 98(4) in determining the fairness of Ms Mwitta's dismissal. The dismissal could not be made unreasonable by what happened afterwards. So to hold would be perverse.

Submissions on behalf of Ms Mwitta

Race discrimination

56. Ms Levene on behalf of Ms Mwitta contended that the ET made clear that there was 'unexplained unreasonable conduct from which it [could draw] the inferences satisfying the requirements of the first stage'. In light of the findings of fact, Ms Levene submitted that the ET applied the correct legal test following the guidance given in Igen and Madarassy to the application of RRA section 54A in order to properly conclude that a prima facie case had been raised so as to satisfy the first stage.
57. Ms Levene submitted that there is no need for positive evidence of discrimination at the first stage. Bahl was said to be distinguished from the facts found in the case of Ms Mwitta in that the ET did not draw an inference of race discrimination just from unreasonable treatment of Ms Mwitta but based their inference on the context of such treatment and what was said to be the lack of explanation for it.
58. To illustrate that the ET was aware that they had to find a prima facie case that Ms Mwitta had been discriminated against on grounds of race, Ms Levene relied upon the observation in paragraph 8 of the judgment that:

"The Claimant's primary complaint in these proceedings [was] ….. that the allocation of work between her and her peers was discriminatory of her, and in particular, discriminatory of her by reason of her race. The greater part of the evidence we heard was on this issue."

59. Ms Levene told us that she took the ET carefully to Madarassy. The ET accepted her summary of that case made at paragraph 28 of her written submissions.
60. Ms Levene pointed out that there was no evidence of unreasonable conduct by the Appellants towards anyone else leading to lack of opportunity to undertake work and a consequential low utilization rate. The Appellants provided more work to the comparators than to Ms Mwitta. It was submitted that the ET had not erred or made insufficient findings of fact in concluding that a prima facia case of race discrimination had been made out against the Appellants.
61. As for the second stage of application of RRA section 54A, Ms Levene submitted that although the Appellants referred to the four criteria used to allocate work, they were unable to explain why Ms Mwitta was treated as she was. The ET drew the threads together in paragraph 79 in which they observed:

"In the case of each of those three Respondents [Messrs Jones, Glover and Pike], we have set out above our concerns as to the explanations which they each provided. Some of those explanations are inconsistent with the contemporary documents, eg the appraisals. Certain explanations are inconsistent with other evidence, in particular as the use and availability of other fee-earners of equal experience but apparent lesser capability. We do not here rehearse our various criticisms of the three individual Partners, but repeat and adopt them as part of our reasoning for our inability to accept their various explanations."

62. The hurdle to be overcome by appellants seeking to challenge the decision of an ET on grounds of perversity is a high one. Ms Levene contended that the Appellants in this case have not surmounted that hurdle. She submitted that the ET were entitled on the evidence to conclude that Ms Mwitta had shown a prima facie case against the Appellants and thus satisfied the first stage of the test for establishing race discrimination. Further, at the second stage, on the evidence of the reasons why Ms Mwitta was not provided with work, the ET were entitled to conclude that the Appellants had failed to discharge the onus of proving that there was no race discrimination in their treatment of her.

Unfair dismissal

63. Ms Levene pointed out that the ET relied on a short point to decide that Ms Mwitta was unfairly dismissed. Hammonds had been in breach of section 188. The unfairness of such a breach was that Ms Mwitta was dismissed on 1 December 2008 within the protected period when she thought that she was still employed. The ET did not err in holding that Hammonds only conceded at the hearing before them that Ms Mwitta had not agreed to bringing forward the date of termination of her employment added to the unfairness of the dismissal. Accordingly the ET did not err in finding that Ms Mwitta had been unfairly dismissed.

Discussion and conclusions

Race discrimination

64. RRA section 54A and the similar provision in the Sex Discrimination Act 1975 involve a two stage analysis of the evidence in determining whether a claimant has established discrimination on racial grounds.
65. In Madarassy Mummery LJ explained what a claimant has to establish at the first stage before the burden of proof passes to the respondent to establish that he has not committed an act of discrimination. He held at paragraph 55:

"In my judgment, the correct legal position is made plain in paras 28 and 29 of the judgment in Igen Ltd v Wong:

'28 … The language of the statutory amendments [to section 63A(2)] seems to us plain. It is for the complainant to prove facts from which, if the amendments had not been passed, the employment tribunal could conclude, in the absence of an adequate explanation, that the respondent committed an unlawful act of discrimination. It does not say that the facts to be proved are those from which the employment tribunal could conclude that the respondent 'could have committed' such act.

29. The relevant act is, in a race discrimination case …. that

(a) in circumstances relevant for the purposes of any provision of the 1976 Act (for example in relation to employment in the circumstances specified in section 4 of the Act),

(b) the alleged discriminator treats another person less favourably and

(c) does so on racial grounds. All those facts which the complainant, in our judgment, needs to prove on the balance f probabilities."

(The court then proceeded to criticise the Employment Appeal Tribunal for not adopting this construction and in regarding 'a possibility' of discrimination by the complainant as sufficient to shift the burden of proof to the respondent.).

66. A possibility that a respondent 'could have' committed an act of discrimination is therefore not sufficient establish a prima facie case so as to move the burden of proof to the respondent and consideration of the claim to the second stage. Mummery LJ noted that the Court of Appeal in Igen had expressly rejected such an argument. He held at paragraph 56:

"The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal 'could conclude' that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination."

67. Whilst the Court of Appeal in Igen at paragraph 51 held that it was open to the ET on the facts of that case to draw inferences from unexplained unreasonable conduct by the employer satisfying the requirements of the first stage, it cautioned ETs 'against too readily inferring unlawful discrimination on a prohibited ground merely from unreasonable conduct where there is no evidence of other discriminatory behaviour on such ground'.
68. The reason why at the first stage all the necessary ingredients of the race discrimination claim must be proved from which, in the absence of an adequate explanation, a reasonable ET could properly conclude that such an act of unlawful discrimination had taken place was explained in paragraph 58 of Madarassy. Once a prima facie case has been established by the claimant:

"The consideration of the tribunal then moves to the second stage. The burden is on the respondent to prove that he has not committed an act of unlawful discrimination. He may prove this by an adequate non-discriminatory explanation of the treatment of the complainant. If he does not, the tribunal must uphold the discrimination claim."

69. The Court of Appeal heard substantial argument on the construction of the expression 'in the absence of an adequate explanation' in the opening part of section 63A(2) of the Sex Discrimination Act 1975 (the equivalent of RRA section 54A(2)) and its implications for the evidence which the ET could consider at the first stage.
70. The Court approved the approach of Elias P (as he then was) in Laing v Manchester City Council [2006] ICR 1519 in which the EAT accepted the submission that, at the first stage, the tribunal should have regard to all the evidence, whether it was given on behalf of the complainant or on behalf of the respondent, in order to see what inferences 'could' properly be drawn from the evidence. It is recorded at paragraph 69 that the EAT observed:

"The only factor which section 63A(2) stipulates shall not form part of the material from which inferences may be drawn at the first stage is 'the absence of an adequate explanation' from the respondent."

71. In Madarassy Mummery LJ held at paragraph 71 that the ET is not precluded from hearing accepting or drawing inferences from evidence adduced by the respondent disputing and rebutting the complainant's evidence of discrimination. He continued:

"71.The respondent may adduce evidence at the first stage to show that the acts which are alleged to be discriminatory never happened; or that, if they did, they were not less favourable treatment of the complainant; or that the comparators chosen by the complainant or the situations in which comparisons are made are not truly like the complainant or the situation of the complainant; or that, even if there has been less favourable treatment of the complainant, it was not on the ground of her sex or pregnancy.

72. Such evidence from the respondent could, if accepted by the tribunal, be relevant as showing that, contrary to the complainant's allegations of discrimination, there is nothing in the evidence from which the tribunal could properly infer a prima facie case of discrimination on the proscribed ground."

72. Whilst the respondent's explanation may result in the rejection of a prima facie case of proscribed discrimination and thus the claim not progressing beyond the first stage, the absence of an explanation may not be relied upon to establish such a prima facie case. In Madarassy at paragraph 58 Mummery LJ held:

"The absence of an adequate explanation for differential treatment of the complainant is not, however, relevant to whether there is a prima facie case of discrimination by the respondent. The absence of an adequate explanation only becomes relevant if a prima facie case is proved by the complainant. The consideration of the tribunal then moves to the second stage. The burden is on the respondent to prove that he has not committed an unlawful act of discrimination. He may prove this by an adequate non-discriminatory explanation of the treatment of the complainant. If he does not, the tribunal must uphold the discrimination claim."

73. The self direction of the ET on the proper approach to consideration of race discrimination claims is briefly set out in paragraph 76 of their judgment. The ET expressed their familiarity with the guidance in the cases and accepted Ms Levene's summary of Madarassy in paragraph 28 of her submissions. The written submissions in that paragraph make no reference to the need for a claimant to establish at the first stage facts from which an ET could infer that the respondent had discriminated against the claimant on grounds of race not just that such discrimination could have taken place. Further no reference is made in that paragraph to the proposition in Madarassy at paragraph 54 that a difference in race and a difference in treatment is insufficient to establish a prima facie case of race discrimination.
74. Ms Levene submitted that the ET drew an inference of prima facie race discrimination based on the context and the lack of explanation for the unreasonable treatment.
75. In the absence of a more explicit self direction on the approach adopted by the ET to whether a prima facie case of race discrimination had been established by Ms Mwitta, we deduce that approach from the material upon which the ET relied to reach their conclusion. The factual basis for the conclusion of the ET that Ms Mwitta had established a prima facie case of race discrimination in relation to work allocation is set out in paragraph 77 of the judgment. The ET there referred to the lack of work provided to Ms Mwitta. The ET found:

"There is a very great disparity, both in absolute terms and percentage terms, between the hours worked by the Claimant and those worked by her comparators. We accept that those statistics show a pattern of marginalisation."

76. The ET also relied on paragraphs 31-35 of the written submissions of Ms Levene referring to evidence upon which they could be satisfied that a prima facie case of race discrimination had been made out against each of the Appellants.
77. In our judgment the material referred to by the ET as the basis for their conclusion that Ms Mwitta had established a prima facie case of race discrimination indicates that the ET found such a case established on the basis of a difference in race and significantly less work being given to Ms Mwitta than to her comparators showing a pattern of marginalisation. These facts indicate a difference in race and a difference in treatment and, at most, as Mr Brennan contended, a possibility that the Appellants could have discriminated on grounds of race in allocating work but not that they had committed such an act. As was made clear by Mummery LJ in paragraph 56 of Madarassy this would be an insufficient basis from which an ET could draw an inference that a respondent had committed an act of unlawful race discrimination. For a prima facie case to be established, the ET would have to find facts from which they could conclude properly that Ms Mwitta had been discriminated against on grounds of her race.
78. Ms Levene contended that in concluding that Ms Mwitta had established a prima facie case the ET relied upon what they considered to be the lack of a reasonable explanation from the Appellants for giving her less work than that given to her comparators more work. At paragraph 17 of her skeleton argument Ms Levene contended:

"Given the extensive reasoning of unexplained unreasonable conduct, it is submitted that the Tribunal did make findings to support its conclusion of a prima facie case on the balance of probability."

79. If, as Ms Levene submitted, the ET inferred race discrimination not from unreasonable treatment alone but from the lack of explanation for such treatment, having regard to paragraph 58 of the judgment of Mummery LJ in Madarassy, they would have erred in doing so.
80. The issue for determination by the ET at the first stage was whether Ms Mwitta had established a prima facie case that the less favourable treatment complained of was on grounds of race.
81. In our judgment the ET erred in failing to decide whether Ms Mwitta had established facts from which it could conclude that the Appellants or any of them had, not could have, discriminated against her on grounds of race. Further, it is likely that they inferred unlawful discrimination from a difference in race and less favourable treatment being accorded to Ms Mwitta than that accorded to her comparators. If at the first stage the ET inferred that a prima facie case had been established in whole or in part from what they regarded as a lack of explanation for the paucity of work provided to Ms Mwitta, they would have erred.
82. Elias LJ has given a recent reminder of the high hurdle to be overcome by an appellant seeking to establish that a decision of an ET was perverse. In Salford Royal NHS Foundation Trust v Roldan [2010] IRLR 721 he made the observation at paragraph 51 that in the absence of a misdirection in law the EAT should not interfere with the decision of an ET unless:

"… there is no proper evidential basis for it, or unless the conclusion is perverse. That is a very high hurdle. In Yeboah v Crofton [2002] IRLR 634 Mummery LJ said that this would require an 'overwhelming case' that the decision was one which no reasonable tribunal, properly appreciating the law and the evidence, could have made."

83. The appeals are allowed on the basis of misdirections in law by the ET in determining whether Ms Mwitta had established a prima facie case of race discrimination so as to pass to the Appellants the burden or disproving such discrimination. It is contended in Paragraph 21 of the Notice of Appeal that:

"The Tribunal failed to make any findings of fact sufficient to support any conclusion that the Claimant had proved on the balance of probabilities a prima facie case that she had been less favourably treated on racial grounds than a properly comparable white person was or would have been."

The ET heard evidence over five days. In our judgment a different self direction in law may have led to a different approach by the ET to the evidence. In the circumstances we are unable to say whether properly directing themselves no reasonable ET on the relevant facts would or would not have concluded that Ms Mwitta had established a prima facie case of race discrimination against the Appellants. The explanation for not assigning work to Ms Mwitta will be considered in light of the evidence constituting a prima facie case of race discrimination if such were to be established. Accordingly, as is anticipated in paragraph 23 of the Notice of Appeal, the perversity challenge to the finding by the ET that the Appellants failed to discharge the onus of proving that there was no race discrimination in their treatment of Ms Mwitta is to be treated as an alternative ground of appeal and we make no observations on it. For similar reasons it cannot be said that the decision of the ET is plainly and unarguably right notwithstanding the misdirections so as to enable the finding of race discrimination to be upheld.

84. In light of our conclusion that the ET erred in law in their approach to determining whether Ms Mwitta had established a prima facie case so as to pass the burden of proof to the Appellants to prove that they did not commit the acts of race discrimination alleged, the findings of race discrimination against each of the Appellants are set aside. The race discrimination claims against each of the Appellants are remitted to a differently constituted ET for rehearing on the basis set out in the final two paragraphs of this judgment.

Unfair dismissal

85. The ET held that the reason for the dismissal of Ms Mwitta was redundancy. The dismissal was not on grounds of race. Further the ET found that the lack of work provided to Ms Mwitta which was the subject of the successful race discrimination claim had no effect on her selection for redundancy. The ET considered that the claim for unfair dismissal 'can be decided on a very short point.' The basis upon which the ET found the dismissal of Ms Mwitta to be unfair was that Hammonds had been in breach of section 188 TULR(C)A. That breach was constituted by notifying Ms Mwitta that she had been dismissed on 1 December 2008 when she had been informed that she would be dismissed on 15 December. The ET held at paragraph 88 that:

"In our view, it must follow that, where an employer is in breach of a relevant rule of law, it also acts unreasonably."

86. The ET also regarded 'as part and parcel of the same argument' of unreasonableness the treatment by Hammonds of Ms Mwitta's agreement in principle on 28 November 2008 to the bringing forward of her termination date from 15 to 1 December 2008 as an absolute agreement to do so.
87. Further the ET regarded the failure of Mr Glover in evidence to the ET to admit that Hammonds was mistaken in thinking that Ms Mwitta had agreed to advance the termination date of her employment and counsel's admission to that effect as adding to 'the unreasonableness of that position'.
88. The ET found in paragraph 95 that no loss flowed from advancing the date of dismissal. The ET 'classified' the sending of a dismissal letter on 1 December 2008 as 'mere incompetency'. The letter did not reach Ms Mwitta until 13 December 2008, just two days before the date of termination of her employment.
89. The ET held at paragraph 89:

"We emphasise that the only part of the dismissal process upon which the First Respondent acted unreasonably was the attitude taken at the meeting on 28 November (or perhaps immediately after it), rather than any other aspect of the dismissal process. Had the First Respondent not taken that view and not sent the 1 December 2008 letter, we would have found that this dismissal was entirely fair."

90. In our judgment the ET erred in holding that an employer who dismisses an employee within a protected period necessarily acts unreasonably for the purposes of ERA section 98(4). As can be seen from the now repealed section 98A ERA specified provisions the breach of which led to automatic unfair dismissal. Section 188 TULR(C)A is not one of these. Further section 188(8) makes it clear that the section does not confer any rights on an employee other than as provided by sections 189 to 192 of that Act. Ms Mwitta received a remedy for breach of section 188: a protective award of thirty days' remuneration.
91. The issue to be determined by the ET in considering the unfair dismissal claim was whether Hammonds acted reasonably or unreasonably in treating redundancy as a sufficient reason for dismissing her, that determination to be in accordance with equity and the substantial merits of the case. Any unreasonableness constituted by the mistaken sending of a letter of dismissal on 1 December 2008 could have had no material effect on Ms Mwitta as it was not received until two days before the date on which she expected that her employment would terminate. The ET found that there was no financial loss to Ms Mwitta from advancing the termination date. Further, the ET erred in relying on the attitude of a witness before them to whether Ms Mwitta had agreed to advancing the termination date of her employment and the concession at that hearing that she had not, as compounding the unfairness of the dismissal. Subject to appeals, events occurring after dismissal cannot affect its fairness.
92. In our judgment the ET erred in law in upholding the claim by Ms Mwitta for unfair dismissal. Accordingly the appeal from the finding of unfair dismissal succeeds and is set aside. An ET properly directing itself on the facts found by the ET would have concluded that the dismissal of Ms Mwitta was fair within the meaning of the ERA.

Disposal

93. The appeal from the finding that Hammonds unfairly dismissed Ms Mwitta succeeds. The finding of unfair dismissal is set aside and her claim for unfair dismissal is dismissed.
94. The appeal from the finding that the Appellants discriminated against Ms Mwitta on grounds of her race succeeds and is set aside. The claim that Hammonds, Mr Glover, Mr Jones and Mr Pike unlawfully discriminated against Ms Mwitta on racial grounds by subjecting her to a detriment, namely by not providing her with such work as she was capable of performing is remitted to an ET for determination.
95. We invited short written submissions on whether the race discrimination claim should be remitted to the same or to a differently constituted ET.

Should the race discrimination claim be remitted to the same or to a different Employment Tribunal?

96. Both parties rely on the well known guidance on this issue given by the EAT, Burton P, in Sinclair Roche & Temperley v Heard [2004] 763 at paragraph 46 but to different effect.
97. Mr Brennan pointed out that the claim of race discrimination is of great importance to the professional people involved. He recognised that the outcome is no doubt of importance to Ms Mwitta. It also has professional and commercial implications for Hammonds and the individuals which substantially exceed the amount of compensation likely to be at stake. He contended that the ET approached the race claim on the basis of an erroneous view of the law and that their decision seems to show that they have formed a view about the case and the individuals involved. It would not be appropriate for the ET to reach a determination which would require or permit them to try to perform the skilful mental gymnastics of approaching the fact again with an open mind when they have already formed and expressed a negative view of the Appellants' approach. This would give rise to the ET having the 'second bite of the cherry' referred to by the Court of Appeal in English v Emery Reimbold & Strick Ltd [2003] IRLR 710. They may have pre-judged the issues and wish to justify their original decision. For the matter to be determined by the same ET would not be fair, either in substance or appearance. The ET erred in determining that the dismissal of Ms Mwitta was unfair. They made an 'elementary legal error' in their reasoning. The ET heard the evidence over a year ago and there is bound to be further delay in assembling the same ET and if, as would be appropriate, continuity of legal representation, if the parties wished. The ET's recollection of the case will have dimmed with the passage of time.
98. In all the circumstances the claim should be remitted for consideration by a differently constituted ET.
99. Ms Levene submitted that consideration of the factors identified in Sinclair Roche leads to the conclusion that remission should be to the same ET. To do so would be less costly than sending the claim to be considered by a fresh ET. The ET heard evidence over five days. On a remitted hearing they would hear submissions on evidence which had already been given. A fresh ET would require a number of days to hear evidence and submissions. This would cause Ms Mwitta additional cost and distress. Further there is not a sufficiently large amount of compensation at stake that the cost of remitting to a fresh ET is justified.
100. It was pointed out that less than a year has elapsed since the judgment of the ET was handed down. The matter will be sufficiently fresh in the minds of the members of the ET. There was no evidence of bias or partiality. It was said that we have not concluded that the decision of the ET was totally flawed. There is no reason why the original ET could not reconsider the claim in accordance with the guidance given by the EAT. Ms Levene submitted that it is relevant to consider that the ET did not find for Ms Mwitta on a number of her claims. There was no reason to doubt the professionalism of the ET.
101. Ms Levene submitted that in accordance with the overriding objective of the proceedings of the EAT, considerations of the saving of costs and overall fairness are furthered by allowing the race discrimination claim to be heard by the same ET.

Discussion and conclusion

102. The factors to be taken into account in determining whether to remit a claim to the same or to a different ET set out in paragraph 46 of Sinclair Roche are conveniently listed in the headnote to the IRLR report of the case. The headnote reads:

"The factors relevant in deciding whether a case should be remitted back to the same tribunal include proportionality: whether sufficient money is at stake so that the additional costs to both sides of a fresh hearing does not offend on the grounds of proportionality; passage of time: a matter should not be sent back to the same tribunal if there is a real risk that it will have forgotten about the case; bias or partiality; it would not be appropriate to send the matter back to the same tribunal where there was a question of bias or the risk of pre-judgment or partiality; totally flawed decision: it would not ordinarily be appropriate to send the matter back to a tribunal where the first hearing was wholly flawed or completely mishandled; second bite: the EAT should only send the matter back if it has confidence that, with guidance, the tribunal would be prepared to look fully at further matters and thus be willing to come to a different conclusion; tribunal professionalism: in the absence of clear indicators to the contrary, it should be assumed that the tribunal is capable of a professional approach to dealing with the matter on remission."

103. The EAT remitted Ms Heard's sex discrimination and victimisation claims to the same ET. Interlocutory decisions made by the original ET in preparation for the rehearing were successfully challenged on appeal and an application by Sinclair Roche for review of the decision to remit to the same ET was allowed and the case remitted to a differently constituted ET (Sinclair Roche & Temperley v Heard (UKEAT/0637/05 21.11.05)). The EAT referring to their earlier judgment held:

"11. ….. In paragraph 46.3 we refer to bias or partiality:

"It would not be appropriate to send the matter back to the same Tribunal where there was a question of bias or the risk of pre-judgment or partiality. This would obviously be so where the basis of the appeal had depended upon bias or misconduct, but it is not limited to such a case".

12. In paragraph 46.4 we referred to the situation of a totally flawed decision, where it would be inappropriate to think that the appellate tribunal would have confidence in the matter going back to the same tribunal. But there might be a situation in which, nonetheless, the Appeal Tribunal had confidence that, with guidance, the tribunal could get it right second time; but that, clearly, would be the exceptional case.

13. In paragraph 46.5 we referred to the danger of the "second bite at the cherry" as Lord Phillips, now Lord Chief Justice, pointed out in English v Emery Reimbold & Strick Ltd [2003] IRLR 710. We said this:

"If the Tribunal has already made up its mind, on the face of it, in relation to all the matters before it, it may well be a difficult if not impossible task to change it: and in any event there must be the very real risk of an appearance of pre-judgment or bias if that is what a tribunal is asked to do. There must be a very real and very human desire to attempt to reach the same result"

and we opined that the Appeal Tribunal would only send the matter back if it had confidence that, with guidance, the tribunal, because there were matters which it had not, or had not yet, considered at the time it apparently reached a conclusion, would be prepared to look fully at such further matters and would be willing and enabled to come to a different conclusion, if so advised."

104. We consider the factors set out in paragraph 46 of the first judgment in Sinclair Roche.
105. In our judgment consideration of 'proportionality' is not restricted to the amount of likely compensation in issue. In response to a request by the parties, the ET indicated at paragraph 93 that the award to Ms Mwitta for injury to feelings should be in the middle band in Vento v Chief Constable of West Yorkshire [2003] IRLR 102, between £6000 and £18,000. The amount of compensation at issue is therefore likely to be dwarfed by the costs of litigation. Since we have found that the ET failed to consider the issue of whether Ms Mwitta had established a prima facie case of unlawful race discrimination, more evidence will no doubt be adduced whether the hearing is before the original or a fresh ET. We would hope and expect that much of the evidence which was the subject of findings of fact by the original ET could be agreed by the parties.
106. There is unlikely to be a substantial difference in the cost of a remitted hearing before the original or before a fresh ET. This is a case in which much more than compensation is at stake. Its outcome is likely to affect the reputation of all parties which may in turn have financial consequences beyond any monetary award. In our judgment, proportionality does not favour either remitting the claim to the same or to a fresh ET.
107. The hearing before the original ET concluded at the end of September 2009. The passage of time between the original and any remitted hearing is likely to be of much the same order as in Sinclair Roche. Unlike that case, there has been no remedy hearing to keep the matter fresh in the mind of the members of the ET. In our judgment the passage of time does not clearly point to remission to the original ET or to a fresh ET.
108. We have concluded that the ET erred in concluding that 'a prima facie case' was 'raised' in respect of each of the Appellants. The ET then rejected the explanations proffered by the Appellants for Ms Mwitta receiving less work than her comparators. The ET reached such conclusions on facts which are likely to form a substantial part of the basis for the decision on the remitted race discrimination claim. In our judgment it would be difficult for them to approach the same facts with a fresh mind. We consider there is a real risk of pre-judgment or at least a very real risk of an appearance of pre-judgment of Ms Mwitta's race discrimination claim if it were to be remitted to the original ET.
109. We have found that the ET made significant errors of law in finding that the Appellants had discriminated against Ms Mwitta on grounds of her race. Further, the ET erred in law in finding that Hammonds had unfairly dismissed her. Whilst the expression 'totally flawed' may be an unduly harsh term to apply to the judgment of the ET, it did contain a number of significant errors.
110. In all the circumstances and having regard to the overriding objective we remit to a differently constituted ET for determination the claim that Hammonds, Mr Glover, Mr Jones and Mr Pike unlawfully discriminated against Ms Mwitta on racial grounds by subjecting her to a detriment by not providing her with such work as she was capable of performing.
111. We urge the parties to agree many of the facts relevant to the remitted claim. They may adduce further evidence and make submissions relevant only to the remitted claim. All the findings of fact and conclusions relating to the claims which were not appealed are unaffected by this judgment and remain in place.