England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)

		Royal Courts of Justice
		26 November 1993

1. LORD JUSTICE BALCOMBE: Daneford School, London E2 is a comprehensive school for boys only. In the decade preceding 1990 the proportion of Bangladeshi pupils at the school had increased to such an extent that in 1990 some 70% of the boys were of Bangladeshi origin. At the time of the events with which this appeal is concerned the school was run by the Inner London Education Authority (ILEA), and since 1 April 1990 has been run by the London Borough of Tower Hamlets.
2. Ms Irene E Simon is a black woman of Afro-Caribbean origin. She was born in Antigua in 1955 and came to the United Kingdom in 1960. She holds the degrees of BSc and BA, has a Certificate in Education and is a member of the Institute of Biology. After another teaching post she came to Daneford School in 1981 in the science department. She was made head of biology in 1982, became head of a year in 1985 and in 1988 became head of the fourth and fifth years, which years constitute more than half the children in the school.
3. In September 1987 Ms Hoyle, white and of New Zealand origin, came to Daneford School as head of science. In that capacity she was senior to Ms Simon, but having regard to Ms Simon's position as head of the fourth and fifth years, they were more or less equals.
4. In September 1988 Ms Chapman, also white, came to the school as headteacher. The school was in a bad way. There had been a series of short-term headteachers; the standards of the school were low and the ethos was poor. Ms Chapman greatly improved the school in these respects.
5. Unfortunately Ms Hoyle and Ms Simon did not get on well together. On 7 and 10 November 1988 there were incidents, both involving Ms Simon and a fellow teacher, which were witnessed by Ms Hoyle. On 11 November 1988 Ms Hoyle made written reports of these incidents to Ms Chapman. Ms Chapman decided that these reports were complaints. On 21 November 1988 she convened a meeting of herself, Ms Hoyle and Ms Simon at which she invited Ms Hoyle to hand the reports to Ms Simon and asked Ms Simon to reply to the complaints. Ms Hoyle had prior notice of this meeting; Ms Simon did not. Ms Simon became upset and went home without Ms Chapman's permission. She remained at home until 13 December. In the meantime correspondence passed between Ms Chapman and Ms Simon, but Ms Chapman did not receive from Ms Simon her account of the incidents. On 13 December, Ms Chapman referred Ms Hoyle's complaints to Ms Isaacs of the disciplinary section of ILEA under cover of a letter in which she stated:

'I would very much appreciate your pursuing the two complaints made by Ms Hoyle, as Ms Simon refuses to apologise for her recent actions or promise to behave differently in the future.'

6. On 21 December 1988 Ms Simon absented herself from school to attend County Hall without obtaining Ms Chapman's permission.
7. ILEA had a system whereby a teacher was entitled, on request, to an open report, which was different from a reference given in response to a request from a potential employer. An open report could, as it were, be carried in the pocket like a driving licence. In or about February 1989 Ms Simon asked Ms Chapman for an open report. Ms Simon made four requests for an open report, the fourth being in writing dated 13 April 1989, to enable her to apply for a post outside Daneford School. On 26 April 1989 Ms Chapman produced an open report. Ms Simon criticised certain aspects of the report and, as she was entitled, asked for changes. There followed much correspondence on the content of the report, but no finalised report was ever produced.
8. On 9 May 1989 Ms Simon was informed that two complaints against her (which included a matter of which Ms Hoyle had complained) had been upheld by ILEA, and she was given a written warning.
9. In June 1989 there was an exchange of notes between Ms Chapman and a Ms Kooraram (a white female teacher at Daneford School) about Ms Kooraram's absences from school.
10. On 19 and 20 June 1989 Ms Simon lodged with Ms Chapman two formal written complaints relating to Ms Hoyle. Ms Chapman made efforts to resolve these complaints at a local level.
11. On 25 July 1989 Ms Simon lodged an originating application with the Industrial Tribunal, complaining that she had been discriminated against contrary to the Race Relations Act 1976. The relevant complaints were in the following terms:

'Ms Chapman has treated me less favourably than my white colleagues in that:

(i) Even though I advised the deputy head of my absence from school on 21 November 1988 and also sought permission to visit County Hall on 21 December 1988, she referred these to ILEA. In contrast, when a white colleague sought and obtained permission from the deputy head to be out of school, her explanation was accepted and no disciplinary action was taken against her;

(ii) Ms Chapman complained formally to ILEA instead of seeking to resolve the complaints locally. In contrast, Ms Chapman has decided to go through the local resolution process when I made various complaints about Ms Hoyle, including the fact that was I called a "black bitch".

(iii) On several occasions I have requested, both verbally and in writing, a supportive report which would allow me to seek another position elsewhere, but Ms Chapman is unwilling to provide such a report.'

12. ILEA and Ms Chapman were named as respondents to the application.
13. To this application the respondents put in a notice of appearance on 22 September 1989, which included the following passage:

'The applicant requested an open report in a note to Ms Chapman dated 13 April 1989. An open report is compiled by headteachers in the form approved by the authority. In a letter to the applicant dated 14 April 1989, Ms Chapman confirmed that she would prepare such a report. The report produced was in the professional judgment of the headteacher a fair appraisal of the applicant's qualities and abilities.

The report was received by the applicant on 26 April 1989. Following this, the applicant suggested that several alterations be made to it. In a letter dated 12 May 1989, Ms Chapman accepted some of these proposals and gave reasons why she did not think that she could include the others. To date, the applicant has refused to sign the amended open report.

14. Ms Simon's complaint came before an Industrial Tribunal sitting at London North. The hearing lasted over a period of nine days between February and April 1990 and the decision was sent to the parties and entered on the register on 20 April 1990. The facts which I have so far recounted were taken from the full reasons contained in the decision of the Industrial Tribunal. Before I consider the decision of the Industrial Tribunal it will be convenient first to refer to the law.
15. The relevant provisions of the Race Relations Act 1976 are the following:

'1. Racial discrimination

(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 the other less favourably than he treats or would treat other persons; ...

3. Meaning of "racial grounds", "racial group" etc

(1) In this Act, unless the context otherwise requires – "racial grounds" means any of the following grounds: namely colour, race, nationality or ethnic or national origins; ...

Part II. Discrimination in the employment field Discrimination by employers

4. Discrimination against applicants and employees ...

(2) It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee ...

(b) in the way he affords him access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or

(c) by dismissing him, or subjecting him to any other detriment ...

32. Liability of employers and principals

(1) Anything done by a person in the course of his employment shall be treated for the purposes of this Act (except as regards offences thereunder) as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval ...

54. Jurisdiction of Industrial Tribunals

(1) A complaint by any person ("the complainant") that another person ("the respondent") –

(a) has committed an act of discrimination against the complainant which is unlawful by virtue of Part II; or

(b) is by virtue of s.32 ... to be treated as having committed such an act of discrimination against the complainant ...

may be presented to an Industrial Tribunal ...

56. Remedies on complaint under s.54

(1) Where an Industrial Tribunal finds that a complaint presented to it under s.54 is well founded, the Tribunal shall make such of the following as it considers just and equitable ...'

16. There follow in subparagraphs (a) (b) and (c) different forms of relief which the Tribunal can grant.
17. Of the decided cases I need refer only to the following.
18. In King v The Great Britain-China Centre [1991] IRLR 513, Neill LJ set out (at p.518, 38) the basis upon which a Tribunal should approach a complaint of racial discrimination:

'(1) It is for the applicant who complains of racial discrimination to make out his or her case. Thus if the applicant does not prove the case on the balance of probabilities he or she will fail.

(2) It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers will be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely based on an assumption that "he or she would not have fitted in."

(3) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal ...

(4) Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the Tribunal will look to the employer for an explanation. If no explanation is then put forward or if the Tribunal considers the explanation to be inadequate or unsatisfactory, it will be legitimate for the Tribunal to infer that the discrimination was on racial grounds. This is not a matter of law but, as May LJ put it in Noone v North West Thames Regional Health Authority [1988] IRLR 195, "almost common sense".

(5) It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the Tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind both the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case.'

19. I refer also to two passages which set out what is required of an Industrial Tribunal when it gives its reasons for its decision.

(1) In Meek v City of Birmingham District Council [1987] IRLR 250 per Bingham LJ at p.251:

'It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this Court to see whether any question of law arises. ...'

(2) In British Gas plc v Sharma [1991] IRLR 101, Wood J said at p.105, 31:

'It was submitted for the employers that in race relations cases it was not appropriate that an Industrial Tribunal should be asked to decide where the truth lay, especially as there might be cases of an unconscious racial attitude. It is clear that such an attitude may exist and, where evidence of discrimination is very strong, that an Industrial Tribunal may take that view even though it does not expressly decide that witnesses have been untruthful; but we would urge that primary facts be found so that the parties can understand how and why the decision has been reached.'

20. I now turn to the decision of the Industrial Tribunal in the present case. The Tribunal referred to written submissions put in by Mr Munasinghe (who appeared throughout for Ms Simon):

'Mr Munasinghe wrote:

"The applicant's case is that she has been discriminated against in three instances in relation to her employment with the first respondent in that, in comparison to her white colleagues, she has been unfavourably treated in those instances by Miss Chapman, the headteacher."

Mr Munasinghe then set out the three instances. We propose to follow the same format; we will deal with each alleged incident in turn, rather than setting out the whole history in a rigidly chronological order.

8. Mr Munasinghe's written statement of the first alleged incident was as follows:

"The way the complaints made by Ms Hoyle against the applicant (November incidents) were processed by the respondents and, in contrast, how the respondents processed the applicant's own complaints against Ms Hoyle (June incidents)."'

21. It will be seen that Mr Munasinghe's statement of the first complaint is a paraphrase of paragraph (ii) of the complaints as framed in Ms Simon's originating application.
22. After a detailed examination of the evidence relating to this complaint the Tribunal concluded:

'We find this allegation of different treatment on racial ground not proved. We think it is explained by Ms Chapman's being unfamiliar with the procedure of ILEA.'

23. However, having made that finding, the Tribunal went on to consider a matter which was not the subject of any complaint by Ms Simon. I set out in full paragraph 9 of the Tribunal's full reasons:

'9. In reviewing the evidence relating to Miss Hoyle's complaints against the applicant we have been greatly concerned about one matter, namely that we find that Ms Chapman prejudged the case against the applicant. At the close of the meeting on 21 November 1988 Miss Chapman asked the applicant to prepare a reply to Ms Hoyle's complaint. In her letter of 2 December Ms Chapman wrote:

"I would remind you that two official complaints have been made about your professional behaviour by Ms Hoyle, head of the science faculty. I appreciate your present poor health means you are, in all probability, unable to respond to my recent letter. I will therefore delay further action until your return ..."

On 13 December Ms Chapman sent the papers to Ms Isaacs. In her letter she wrote:

"... Ms Simon refuses to apologise for her recent actions or promise to behave differently in the future."

During her meeting with Mr Barnes, Ms Chapman said (her own words in evidence to us):

If Ms Simon would apologise to Ms Hoyle and agree not to behave so unprofessionally again the matter could be resolved locally. That was all she had to do."

In answer to the chairman, Ms Chapman said in evidence to us:

"I believe from the statements of the other two members of staff that Ms Simon has behaved unprofessionally."

There is no evidence before us that Ms Chapman ever did get from the applicant her account of the alleged incidents. She sent the papers to Ms Isaacs with a clear implication that the applicant was in the wrong. This seems to us to be fundamentally unfair. One of us thinks that the explanation is that Ms Chapman was exasperated by the applicant as a person, an individual, irrespective or her colour. The majority of us think that the applicant's colour was a factor in Ms Chapman's act of prejudgment. We draw that inference. It is clear from the case of Owen & Briggs v James [1982] IRLR 502 that colour need not be the sole factor. It is sufficient if colour is an important factor. The majority of us find that there is here a breach of s.1(1)(a) and of s.4(2)(c). The detriment is the prejudgment and the consequent warning. We all think that Ms Chapman's conscious attitude to race is impeccable, but two of us think that subconsciously or unconsciously she was affected in this instance by the fact that the applicant is black. In case it becomes of importance hereafter, we all concur in finding that Ms Chapman did not, as she is alleged to have done, say on one occasion to the applicant that she would work her like a dog but that the applicant would not mind that because she came from a race of slaves.'

24. (It appears from the notice of appeal to this Court that it was the chairman of the Industrial Tribunal who was in the minority.)
25. They then turned to Mr Munasinghe's second complaint, which they dealt with in paragraph 10 of their full reasons:

'10. We turn to Mr Munasinghe's second alleged instance, which he stated as follows:

"The failure of the respondents to prepare an open report for the applicant despite repeated request. Such a report, the respondents were aware, would have facilitated applications the applicant was making at the time for transfer/promotion to other schools within the respondent authority. This had the effect of putting the applicant under a disadvantage."

26. This is, again, a paraphrase of paragraph (iii) of the complaints as set out in the originating application.
27. Then, after setting out the relevant facts about Ms Simon's request for an open report, they said:

'To this day a finalised report has never been produced.

One of us finds that this is due to Miss Chapman's exasperation with the applicant as an individual, irrespective of her race. The majority of us find that a factor in this incident is the applicant's colour. We repeat our observations in paragraph 9 above. The majority of us find that there is here a breach of ss.1(1)(a) and 4(2)(b) and (c).'

28. As to the third complaint – paragraph (i) of the complaints in the originating application – the Tribunal was unanimous in finding that there was no discrimination against Ms Simon, racial or otherwise. There was no appeal against this finding and I need not consider it further.
29. In the result the Industrial Tribunal decided, by a majority, that Ms Simon's complaint of racial discrimination succeeded. They adjourned a decision on remedies, if not agreed, to a further hearing.
30. From this decision Ms Chapman and the London Borough of Tower Hamlets (as successor to ILEA) appealed to the Employment Appeal Tribunal. By its judgment dated 24 September 1992 that Tribunal held that the Industrial Tribunal's majority finding of direct racial discrimination as contained in paragraph 9 of their Reasons was flawed and erroneous in law. The EAT's decision on this matter is contained in the following passage from their judgment:

'The following points are made on behalf of the appellants: first, that the "unfair prejudgment" was not the complaint being made by Miss Simon; secondly, that an error in procedure may not come within the Race Relations Act 1976; thirdly, that Ms Chapman was never in a position to "judge" – that was not her function; fourthly, that in seeking reports from Mr Murzello and Mr Walker, Ms Chapman was doing no more than she had been asked by Ms Simon, and that in any event the intended procedure was made clear to Ms Simon without subsequent criticism or complaint, and that Mr Barnes, her trade union representative, was consulted throughout; fifthly, that there was no evidence to indicate that anything done by Ms Chapman had interfered with or prejudiced the full enquiry carried out by ILEA disciplinary staff, about which no complaint was made; sixthly, that having found that "Ms Chapman's conscious attitude to race was impeccable", there were no primary facts found from which it is possible to infer "subconscious" or "unconscious" racial prejudice – "What did she do or fail to do which evidenced that prejudice?"; and lastly, it is contended that there is a clear indication that on findings of fact – which could indeed have indicated racial prejudice – the evidence of Ms Chapman was accepted.

We find these submissions to be formidable and accept them.'

31. However, in relation to Mr Munasinghe's second instance – the failure to provide the open report – the EAT was divided:

'There is no other teacher mentioned with whom a comparison is drawn and as compared to whom Ms Simon could allege that she had been less favourably treated, nor in the documents do we find any indication that any action taken by Ms Chapman was "on the ground of race".

However, the lay members of this Tribunal feel that we have not seen or heard the witnesses and that, although on the reasoning expressed it is difficult to understand how the majority reached its conclusion on this issue, there may have been sufficient oral evidence to support their finding.

It is true that we have not seen the notes of evidence and that, despite her denial, there is a finding of fact that Ms Simon did make four requests for an open report before 26 April, but I cannot accept that the phrase underlined in paragraph 10, "To this day a finalised report has never been produced", means that it was refused. A finalised report was always on offer but not in the form acceptable to Ms Simon. The correspondence speaks for itself.

On the facts as they appear to us, we would not have found that the actions of Ms Chapman as indicated in the documentation were "on the grounds of race", even if constituting "less favourable treatment" in comparison with some other teacher, but as we did not hear or see the witnesses we decided that it would be inappropriate to interfere with this finding of fact by the majority.'

32. Accordingly, they dismissed the appeal. Ms Chapman and the London Borough of Tower Hamlets now appeal to this Court, with the leave of the EAT, seeking an order that Ms Simon's complaint of racial discrimination be dismissed. Ms Simon has served a respondent's notice asking that the findings of the Industrial Tribunal under paragraph 9 of their reasons be restored.
33. It will be convenient to deal first with the paragraph 9 finding. In my judgment the EAT was wholly justified in accepting the appellants' submissions that the Industrial Tribunal was wrong as a matter of law in reaching this finding. I do not repeat here all seven of the submissions made by the appellants, but the following points seem to me to be irrefutable:

(1) That this was not a matter of which Ms Simon had ever complained. I have already set out the terms of Ms Simon's originating application, which gives every indication of having been prepared with professional assistance, and the way in which Mr Munasinghe framed his statement of the first incident. Sections 54 and 56 of the 1976 Act make it clear that the jurisdiction of the Industrial Tribunal is limited to complaints which have been made to it; no complaint was ever made by Ms Simon relating to the matters which the majority in paragraph 9 found to have constituted racial discrimination.

(2) In order to justify a finding of racial discrimination, there must first be a finding of discrimination, ie in the present case that Ms Chapman treated Ms Simon less favourably than she treated some other person – see s.1(1)(a) of the 1976 Act. In relation to their paragraph 9 finding – that Ms Chapman had prejudged the case against Ms Simon – the Industrial Tribunal made no finding that Ms Chapman had treated Ms Hoyle or some other person more favourably. There was therefore no finding of discrimination on which to base a finding of racial discrimination.

(3) In order to justify an inference, a Tribunal must first make findings of primary fact from which it is legitimate to draw the inference. If there are no such findings, then there can be no inference: what is done can at best be speculation. There are no primary facts mentioned by the majority of the Industrial Tribunal as justifying their inference that 'subconsciously or unconsciously [Ms Chapman] was affected in this instance by the fact that [Ms Simon] is black'. Indeed, such primary facts as they did find – that Ms Chapman's conscious attitude to race is impeccable, and that she did not make the offensive remarks which Ms Simon had alleged she had done – point in exactly the opposite direction. In the course of argument we invited Mr Munasinghe to tell us what were the primary facts which entitled the Industrial Tribunal to infer subconscious or unconscious racial prejudice on the part of Ms Chapman. He listed the following facts:

(1) That Ms Chapman treated the incidents about which Ms Hoyle submitted a written report as complaints. A reference to the contents of these reports shows quite clearly that they were complaints.

(2) That Ms Chapman convened a meeting (of 21 November 1988) without giving prior notice to Ms Simon, whereas she had given prior notice to Ms Hoyle. The facts as found were that Ms Chapman had told Ms Hoyle on the Friday 18 November that she would hold the meeting on Monday 21 November, but that she did not tell Ms Simon until the Monday. There was no finding by the Tribunal as to why there was this difference, and it is easy to think of many perfectly innocent explanations.

(3) The fact that Ms Chapman failed to obtain from Ms Simon her side of the story. But Ms Chapman had, as early as 22 November, asked Ms Simon for her side of the story, and had not, by the time of the letter to Ms Isaacs of 13 December, received a reply.

(4) The fact that Ms Chapman did not allow Ms Simon an opportunity to make amends for her alleged wrongdoing. But Ms Simon had absented herself from school, on medical grounds, from 21 November until 13 December. Since it is the letter of 13 December which the Tribunal found to be racially discriminatory, it is unclear what opportunity to make amends Ms Chapman could have previously allowed Ms Simon.

(5) The prejudgment of Ms Hoyle's complaint which was implicit in the letter sent by Ms Chapman to Ms Isaacs at County Hall on 13 December. This is the only primary fact which can have any possible relevance to the Tribunal's finding, and in my judgment it is quite incapable as a matter of law of supporting an inference of subconscious or unconscious racial prejudice. There was here no strong evidence of racial discrimination which the EAT, in British Gas v Sharma [1991] IRLR 101 (supra), considered might justify a finding of unconscious racial discrimination.

34. Accordingly I would dismiss Ms Simon's cross-appeal under her respondent's notice.
35. That leaves the appellants' appeal relating to the second complaint, the failure to provide an open report.
37. In my judgment Ms Simon failed at the first hurdle on this complaint, since she never alleged any discrimination in relation to the open report. Neither in her originating application, nor in Mr Munasinghe's written submissions to the Industrial Tribunal, was there any suggestion that some other teacher of a different race or colour was or would have been treated more favourably by being provided with an open report. Mr Munasinghe told us that there was evidence before the Tribunal that Ms Hoyle had been given an open report without any problem, but even if that was the case – and neither we nor the EAT saw any notes of the evidence given before the Industrial Tribunal – it is irrelevant because it was not the subject of any complaint made by Ms Simon. In any event, there was no finding to this effect by the Industrial Tribunal.
39. Further, it is clear from the complaint in the originating application that what Ms Simon was wanting was a 'supportive' report, ie one which would allow her to seek another position elsewhere, presumably glossing over any problems that Ms Chapman might have encountered. As is apparent from the respondents' answer in their notice of appearance quoted above, it was Ms Chapman's case that she was professionally unable to give Ms Simon the unqualified favourable report which she was seeking. The letter of 12 May 1989, referred to in this answer, which was before the Industrial Tribunal and is included in our bundle, makes this very clear. Ms Chapman gave evidence before the Industrial Tribunal. Yet in making their finding that the failure to supply an open report was due, at least in part, to 'subconscious or unconscious' racial discrimination on the part of Ms Chapman, the Tribunal say nothing about Ms Chapman's expressed justification for her failure to supply a report in the form required by Ms Simon. Unless they rejected Ms Chapman's explanation, it is difficult to see how it was legitimate for them to infer discrimination – if there had been such – on racial grounds – see the fourth of Neill LJ's principles in King v The Great Britain-China Centre [1991] IRLR 513 (supra).
40. In so far as this finding by the majority was based on their 'observations' in paragraph 9 – which can be a reference to their findings that subconsciously or unconsciously Ms Chapman was affected by Ms Simon's colour – I repeat everything that I said above about there being no findings of primary fact sufficient to justify that inference.
41. I would therefore allow the appeal by Ms Chapman and Tower Hamlets and would dismiss Ms Simon's complaint of racial discrimination.
42. LORD JUSTICE STUART-SMITH: I agree that this appeal should be allowed and the cross-appeal dismissed for the reasons given by my Lords.
43. LORD JUSTICE PETER GIBSON: Complaints of racial discrimination are by their nature serious. The complainant who can establish unlawful discrimination against him or her on racial grounds has suffered a serious wrong, for which Parliament by the Race Relations Act 1976 has provided remedies. For the respondent to such a complaint, a serious accusation has been made, particularly so when the respondent is a professional person such as a teacher, and even more so when that teacher is the headteacher of a school containing a high proportion of children of ethnic minorities. For a respondent local authority which has within its area many from ethnic minorities, an allegation of unlawful discrimination is also a serious matter affecting its relationship with the community which it serves. It is therefore appropriate that in such a case as the present, Industrial Tribunals should perform their duties with meticulous care.
45. Under s.54 of the 1976 Act, the complainant is entitled to complain to the Tribunal that a person has committed an unlawful act of discrimination, but it is the act of which complaint is made and no other that the Tribunal must consider and rule upon. If it finds that the complaint is well founded, the remedies which it can give the complainant under s.56(1) of the 1976 Act are specifically directed to the act to which the complaint relates. If the act of which complaint is made is found to be not proven, it is not for the Tribunal to find another act of racial discrimination of which complaint has not been made to give a remedy in respect of that other act.
46. Racial discrimination may be established as a matter of direct primary fact. For example, if the allegation made by Ms Simon of racially abusive language by the headteacher had been accepted, there would have been such a fact. But that allegation was unanimously rejected by the Tribunal. More often racial discrimination will have to be established, if at all, as a matter of inference. It is of the greatest importance that the primary facts from which such inference is drawn are set out with clarity by the Tribunal in its fact-finding role, so that the validity of the inference can be examined. Either the facts justifying such inference exist or they do not, but only the Tribunal can say what those facts are. A mere intuitive hunch, for example, that there has been unlawful discrimination, is insufficient without facts being found to support that conclusion.
47. In the originating application, Ms Simon has specified the acts of discrimination of which she makes complaint. She says:

'(h) Ms Chapman has treated me less favourably than my white colleagues in that ...' (my emphasis)

and she then gives three specific matters, of which only two (the formal complaint by Ms Chapman to ILEA about Ms Simon instead of seeking to resolve the complaint locally, in contrast to Ms Chapman's treatment of Ms Simon's complaint about Ms Hoyle; and the unwillingness of Ms Chapman to provide a supportive report on Ms Simon, to enable her to seek another position elsewhere) are now material. Ms Simon has therefore limited her complaint of less favourable treatment to those three matters, and the Tribunal should have confined itself to those matters, unless of course it allowed the originating application to be amended.

49. The Tribunal specifically rejected the charge of different treatment on racial grounds of Ms Simon and Ms Hoyle in respect of the disposal of their respective complaints, and I do not think it was open to it to find that the prejudging of the complaint by Ms Hoyle against Ms Simon was an act of discrimination on racial grounds when that was not the subject of complaint in the originating application. In my judgment the Employment Appeal Tribunal was correct in allowing the appeal on this matter. I cannot accept Mr Munasinghe's submission that it was impermissible to do this in the absence of the Tribunal chairman's notes of evidence, as this point does not depend on the evidence.
51. I also agree with the Employment Appeal Tribunal in accepting the following submission of Ms Chapman and the council, viz 'that having found that "Ms Chapman's conscious attitude to race was impeccable", there were no primary facts found from which it is possible to infer "subconscious" or "unconscious" racial prejudice – what did she do or fail to do which evidenced that prejudice?' Mr Munasinghe submitted that there were five findings of primary fact which supported the inference made by the majority of the Tribunal. But only two of them, Ms Chapman's failure to obtain from Ms Simon the latter's side of the story; and the prejudging, evidenced by the letter from Ms Chapman to ILEA, of the complaint by Ms Hoyle against Ms Simon, are referred to by the Tribunal in relation to the act of prejudgment on which Ms Chapman was found by the majority guilty of racial discrimination. Further, in the absence of further findings of fact I find it difficult to understand how a person whose conscious attitude to race has been held to be impeccable can in relation to the act of writing a letter about a complaint by a white woman against a black woman be found to be acting subconsciously or unconsciously in a racially prejudiced way. It seems to me that there were no primary facts found to support this inference.
54. Similar reasoning is relevant to the finding by the majority of the Tribunal on the failure to provide a supportive letter, and it is, with respect, surprising that the majority of the Employment Appeal Tribunal took a different attitude on that matter from that which they took together with the President on the 'act of prejudgment'. Again one is entitled to ask against the background of the finding that Ms Chapman's conscious attitude to race was impeccable: what did she do or fail to do which evidenced racial prejudice? The documents, the majority of the Employment Appeal Tribunal expressly accepted, do not support the conclusion of the majority of the Tribunal. The majority of the Employment Appeal Tribunal merely say that 'there may have been sufficient evidence to support their finding'. But the relevant facts have not been found, and in my judgment it is not fair to those found guilty of racial discrimination that such an inference should stand in the absence of primary facts that would support it.
55. For these and the other reasons given by Balcombe LJ I would allow the appeal and dismiss the cross-appeal.

Order: Appeal dismissed with costs.