EXTRA DIVISION, INNER HOUSE, COURT OF SESSION [2011] CSOH 63
Lady Paton Lord Brodie Lord Marnoch	Case No: XA136/07 OPINION OF LADY PATON in an appeal to the Court of Session under Section 37 (1) of the Employment Tribunals Act 1996 against an order and judgment of the Employment Appeal Tribunal dated 5 June 2007 by DR PRIM SINGH Appellant; against (1) BIOTECHNOLOGY AND BIOLOGICAL SCIENCES RESEARCH COUNCIL and (2) THE ROSLIN INSTITUTE Respondents: ________

Appellant: Party

Respondents: Truscott QC; Wright, Johnston & Mackenzie LLP, Solicitors

11 October 2011

[1] For the reasons given by Lord Brodie, with whom I agree, I would refuse the appeal and reserve meantime the question of expenses.

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION [2011] CSOH 63
Lady Paton Lord Brodie Lord Marnoch	Case No: XA136/07 OPINION OF LORD BRODIE in an appeal to the Court of Session under Section 37 (1) of the Employment Tribunals Act 1996 against an order and judgment of the Employment Appeal Tribunal dated 5 June 2007 by DR PRIM SINGH Appellant; against (1) BIOTECHNOLOGY AND BIOLOGICAL SCIENCES RESEARCH COUNCIL and (2) THE ROSLIN INSTITUTE Respondents: ­­­­­­­­­­­­­­­­­________________

Appellant: Party

Respondents: Truscott QC; Wright, Johnston & Mackenzie LLP, Solicitors

11 October 2011

INTRODUCTION
This appeal
[2] It is unlawful for an employer to discriminate against or to victimise an employee on the ground of race. As from 1 October 2010 the relevant prohibition is to be found in the Equality Act 2010 and, in particular, section 39. Before then it was found in section 4 of the Race Relations Act 1976, an Act repealed by the Act of 2010.

[3] This appeal is concerned with complaints of discrimination and victimisation which are said to have occurred when the governing statute was the 1976 Act. The appeal is brought under section 37(1) of the Employment Tribunals Act 1996 from a judgment of the Employment Appeal Tribunal (Lady Smith, Miss S B Ayre FIPM FBIM and Mrs A E Hibberd) dated 5 June 2007. It has a significant procedural history.

[4] The appellant is Dr Prim Singh. He is a scientist. He was employed by the first respondent, the Biotechnology and Biological Sciences Research Council, first at the Babraham Institute ("Babraham") and then, from 1999, at the premises of the Roslin Institute ("Roslin"), a company limited by guarantee, which is the second respondent. His post at Roslin was designated Principal Investigator. The appellant was dismissed from his employment by letter dated 15 June 2004. Prior to his dismissal the appellant had lodged, by way of letter of 21 October 2002, an internal grievance against Professor Ian Wilmut who had also worked at Roslin. That grievance was rejected as was a subsequent appeal against the rejection. The appellant appealed against his dismissal but his appeal was unsuccessful.

[5] The appellant made complaints to the Employment Tribunal. His complaints of discrimination and victimisation were dismissed. He appealed to the Employment Appeal Tribunal. He was unsuccessful. He appealed to this Court. In proceedings before the Employment Tribunal and the Employment Appeal Tribunal the appellant was legally represented. This continued to be so in this Court initially. Latterly the appellant has represented himself.

Procedure in the Employment Tribunal
[6] The appellant made four applications to the Employment Tribunal ("the Tribunal"), both before and after his dismissal by the first respondent, complaining of various acts of racial discrimination and victimisation while he was employed at Babraham and Roslin and further complaining that he had been unfairly dismissed (the act of dismissal also being an instance of racial discrimination). The applications were presented, respectively, on 15 October 2003, on 10 December 2003, on 14 September 2004 and on 1 November 2004. As a result of a case management discussion on 9 February 2005 it was agreed and determined by the Employment Tribunal that the four claims should be combined. As is recorded at para 5 of the Tribunal's decision, it was also agreed that the now appellant would lodge a compendium claim document combining together the averments made in all four claims (the Re-amended Compendium Claim Document is reproduced as Appendix 1 to the appellant's written submissions before this Court). In particular, the document was to identify such matters as were background and such averments as were to be substantive points for determination by the Tribunal. It would specify the statutory basis on which the claims were brought and it would identify the comparators.

[7] One of the issues for determination by the Tribunal was whether claims of direct discrimination and victimisation made in terms of sections 1 and 2 of the Race Relations Act 1976 were time-barred having regard to the requirement in terms of section 68(1) of the 1976 Act that a complaint in respect of an act complained of be presented before the end of the period of three months beginning when the act complained of was done.

[8] Having heard evidence over some 40 days at a number of diets in 2005 and 2006, the Employment Tribunal (Mr Worthington, Mr Rowe and Mr Currie) in terms of its judgment dated 21 August 2006 determined the time-bar issue against the appellant, to the extent of limiting its consideration to his complaints about his treatment during the period when he was employed at Roslin (albeit that the Employment Tribunal recognised, at para 334 of its decision, that it had to look at the whole course of treatment of the appellant and that the fact that the previous events produced in evidence took place outside the limitation period did not prevent the Tribunal from considering them). The Employment Tribunal then went on to find (1) that the claims of direct discrimination and victimisation made, respectively, in terms of sections 1 and 2 of the Race Relations Act 1976 fell to be dismissed but (2) that the appellant had been unfairly dismissed by the first respondent, in terms of section 98 of the Employment Rights Act 1996. The unfair dismissal claim was continued for a further hearing on compensation.

Procedure in the Employment Appeal Tribunal
[9] The appellant appealed the Employment Tribunal's decision on his claims of direct discrimination and victimisation to the Employment Appeal Tribunal. He did not appeal on the time-bar issue (albeit that the decision on time-bar is criticised as perverse in para 33 of the appellant's written submissions in this Court). There was no cross-appeal. In a judgment promulgated on 5 June 2007, following a preliminary hearing, the Employment Appeal Tribunal concluded that no reasonable grounds to the effect that the Employment Tribunal had erred in law had been advanced and dismissed the appeal. I would understand from the fact that what was held was a preliminary hearing where the appellant but not the respondents was represented that it had appeared to a judge of the Employment Appeal Tribunal that the notice of appeal to the Appeal Tribunal on behalf of the appellant had disclosed no reasonable grounds for bringing the appeal, that the appellant had been so notified in terms of rule 3(7) of the Employment Appeal Tribunal Rules 1993 (the "Rules"), that the appellant had expressed dissatisfaction as to the reasons given by the judge and had therefore required the matter to be heard in terms of rule 3(10) of the Rules and that is what had been canvassed at the preliminary hearing. Strictly, the power conferred by rule 3(10) is to determine whether any further action should be taken on the notice of appeal although of course the Employment Appeal Tribunal has other extensive powers both under the Rules and in terms of the Employment Tribunals Act 1996. Rule 39(1) provides that failure to comply with the requirements of the Rules shall not invalidate any proceedings unless the Appeal Tribunal otherwise directs. Rule 39(2) provides that the Tribunal may dispense with the taking of any step required or authorised by the Rules or may direct that any such steps be taken in some manner other than that prescribed by the Rules. The powers of the Employment Appeal Tribunal include the power to dismiss an appeal.

[10] In any event, nothing turns on the fact that the decision by the Employment Appeal Tribunal was made at a preliminary hearing ordered in terms of rule 3(10) rather than at an appeal hearing. The appellant was represented at the preliminary hearing by the solicitor who had conducted proceedings before the Employment Tribunal. A very full notice of appeal had been lodged and was considered at length by an Employment Appeal Tribunal constituted by three members. Thereafter parties treated the determination of the Employment Appeal Tribunal as a dismissal of the appeal. The Employment Appeal tribunal (three member) granted leave to appeal its decision on 16 August 2007. The appellant then appealed to the Court of Session. On 28 September 2007 that appeal was allowed to be received late. Answers were lodged on 25 October 2007 and on 13 November 2007 the appeal was appointed to the Summar Roll. When the matter was raised in discussion at the hearing before this Court counsel for the respondents expressly disclaimed any challenge to the competency of the appeal proceedings.

Procedure in this Court
[11] Procedure in the Inner House subsequent to the appeal being appointed to the Summar Roll can be summarised as follows. On 27 May 2008 the appellant's agents withdrew from acting. The appellant confirmed his intention to proceed with the appeal. On 2 July 2008 the appellant's motion to sist the appeal was refused. On 5 September 2008 the appellant was allowed to withdraw his motion to abandon the appeal. On 15 and 22 October 2008 By Order hearings were continued by reason of the appellant not being able to attend. On 6 November 2008 the appellant's motion to discharge the Summar Roll hearing fixed for 21 November 2008 was refused. On 14 November 2008 the appellant's new agents withdrew from acting. On 21 November 2008 on the appellant's opposed motion the Summar Roll hearing fixed for that day was discharged. During the hearing of the motion the appellant assured the Court that he would seek legal representation as soon as practicable and make an application for legal aid. The Court requested parties to seek to fix another Summar Roll hearing for as early a date as possible. On 20 November 2009 the parties were directed by the Court to fix a new Summar Roll diet quam primum. On 27 October 2010 the Court refused a motion by both parties to discharge the Summar Roll diet set down for 3 December 2010, and ordered parties to lodge full written submissions, the written submissions to be the argument in the appeal. Written submissions on behalf of the respondents were lodged, dated 27 November 2010. On 3 December 2010, the appellant having represented that he had not been allowed sufficient time to prepare and that a one-day hearing was inadequate, the Court discharged the Summar Roll hearing, appointed parties to fix a four-day diet for the Summar Roll hearing, and allowed the appellant to lodge expanded written submissions together with copies of the documents on which he intended to rely with relevant passages highlighted by 15 March 2011. On 15 March 2011 the Court extended the period within which the appellant had to lodge his expanded written submissions. Expanded written submissions on behalf of the appellant were lodged on 12 April 2011. On 21 June 2011 the Court allowed the appellant to amend his grounds of appeal by adding the additional (fourth) ground that: "The Employment Tribunal was biased." On 28 June 2011 the respondents provided amended written submissions dated 27 June 2011.

Grounds of Appeal
[12] The Grounds of Appeal, as amended, may be stated as follows:

(1) The decision of the Employment Tribunal in coming to its conclusion that the appellant had not been subjected to direct race discrimination was perverse. No reasonable Employment Tribunal properly considering the evidence and directing itself according to the law could have reached that decision. No reasonable tribunal could have concluded, as did the Employment Tribunal at para 396 of its reasons that "we do not consider that there are any facts which justify any inference which appears to point to direct race discrimination". The decision was perverse according to the standard set down in Yeboah v Crofton [2002] IRLR 634 as adopted and applied by the Court of Session in Mowlem Technical Services (Scotland) Ltd v King [2005] CSIH 46, 2005 1 SC 514.

(2) Further or alternatively, the Employment Tribunal erred in law by failing properly to provide any sufficient analysis supporting its conclusion as to the absence of direct race discrimination: Deman v The Association of University Teachers [2003] EWCA Civ 329. Further, the Employment Tribunal erred in law by failing to provide any or any proper reasons for its conclusions: Meek v Birmingham City Council [1987] IRLR 250.

(3) In deciding that the appellant had not been subjected to victimisation contrary to the Race Relations Act 1976 section 2 the Employment Tribunal reached a conclusion that was perverse. No reasonable Employment Tribunal properly considering the evidence and directing itself according to the law could have so concluded.

(4) The Employment Tribunal was biased.

(5) The Employment Appeal Tribunal erred in law by failing to identify and correct the above errors of law contained in the judgment of the the Employment Tribunal.

The Race Relations Act 1976
[13] The Race Relations Act 1976, as amended by the Race Relations Act 1976 (Amendment) Regulations 2003 (SI 2003/1626) provides, inter alia:

"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 that other less favourably than he treats or would treat other persons; ...

2 Discrimination by way of victimisation.

(1) A person ("the discriminator") discriminates against another person ("the person victimised") in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has-

(a) brought proceedings against the discriminator or any other person under this Act; or

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act; or

(c) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person; or

(d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

(2) Subsection (1) does not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith.

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; "racial group" means a group of persons defined by reference to colour, race, nationality or ethnic or national origins, and references to a person's racial group refer to any racial group into which he falls.

...

(3) In this Act-

(a) references to discrimination refer to any discrimination falling within section 1 or 2; and

(b) references to racial discrimination refer to any discrimination falling within section 1, and related expressions shall be construed accordingly.

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

4 ...applicants and employees.

(1) It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against another-

(a) in the arrangements he makes for the purpose of determining who should be offered that employment; or

(b) in the terms on which he offers him that employment; or

(c) by refusing or deliberately omitting to offer him that employment.

(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-

(a) in the terms of employment which he affords him; or

(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.

...

54 Jurisdiction of employment tribunals

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

(a) has committed an act... against the complainant which is unlawful by virtue of Part II [Discrimination in the Employment Field]...may be presented to an employment tribunal

...

54A Burden of proof: employment tribunals

(1) This section applies where a complaint is presented under section 54 and the complaint is that the respondent-

(a) has committed an act of discrimination, on grounds of race or ethnic or national origins, which is unlawful by virtue of any provision referred to in section 1(1B) (a) [Part II Discrimination in the Employment Field], (e) or (f), or Part IV in its application to those provisions, or

(b) has committed an act of harassment.

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

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

(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."

Submissions of parties
[14] As I have previously indicated, by interlocutor of 3 December 2010 the Court ordered parties to lodge full written submissions to be the argument in the appeal. Both parties lodged substantial written submissions, which were read by the Court prior to the oral hearing and to which I would refer for their terms. The written submissions have been taken as the parties' respective arguments but at an oral hearing on 29 and 30 June 2011 the appellant and counsel for the respondents were invited to address the Court in order to provide any necessary explanation or amplification.

[15] In the course of this opinion I have provided brief summaries of the appellant's submissions in respect of his various grounds of appeal. These are not intended as substitutes for his much fuller written submissions but, rather, to help focus the points in issue. The respondents' written submissions do not lend themselves to this approach. The respondents' position is to adhere to and adopt the findings in fact made by the Employment Tribunal. They maintain that neither the Employment Tribunal nor the Employment Appeal Tribunal made any error of law and that they came to the correct decision. In support of this position the written submissions for the respondents set out the paragraphs of the Decisions of the Employment Tribunal and the Employment Appeal Tribunal to which particular importance is attached, then draw attention to what are said to be the relevant authorities and then provide a short reply to the written submissions for the appellant.

Discussion
Basis of Appeal
[16] Appeal lies on a matter of law from an Employment Tribunal to the Employment Appeal Tribunal: Employment Tribunals Act 1996 section 21, and then with leave on a matter of law to this Court: 1996 Act section 37(1). Notwithstanding the intervening appeal, the question for this Court is whether the Employment Tribunal erred in law: Scottish Midland Cooperative Society Ltd v Cullion [1991] IRLR 261.

[17] A statement of what is comprehended by a matter of law is found in Melon v Hector Powe Ltd 1980 SC 188 in the opinion of Lord President Emslie at 198:

"It hardly requires to be mentioned that an appeal lies from a decision of the industrial tribunal to the Employment Appeal Tribunal, and from a decision of that Tribunal, to this Court, only upon a question of law. This being so I am happy to say that the parties are not in dispute as to the extent to which the appellate tribunal, or this Court, is entitled to interfere with a decision of first instance, and to substitute their own decision for that arrived at by the industrial tribunal. The law is clear that where it cannot be shown that the tribunal of original jurisdiction has either misdirected itself in law, entertained the wrong issue, or proceeded upon a misapprehension or misconstruction of the evidence, or taken into account matters which were irrelevant to its decision, or has reached a decision so extravagant that no reasonable tribunal properly directing itself on the law could have arrived at, then its decision is not open to successful attack. It is of no consequence that the appellate tribunal or court would itself have reached a different conclusion on the evidence. If there is evidence to support the decision of the tribunal of first instance then in the absence of misdirection in law - which includes the tribunal's selection of the wrong question to answer - that is an end of the matter."

A similar statement is found in the speech of Lord Fraser when the case was in the House of Lords (1981 SC (HL) 1 at 6). However, an Employment Tribunal, like other judicial decision-makers, has an obligation to give adequate reasons for its decision. A failure to do so amounts to an error in law and therefore may be added to Lord Emslie's list of what may be brought before this Court by way of an appeal under what is now section 37(1) of the 1996 Act: Meek v Birmingham City Council supra.

Ground 1: Direct Race Discrimination - Perversity
Direct discrimination: the appellant's complaint
[18] The appellant's complaint was of what is usually referred to as direct race (or racial) discrimination. That is discrimination of the sort described in section 1(1)(a) of the 1976 Act, where a person discriminates against another because "on racial grounds he treats that other less favourably than he treats or would treat other persons". It can be contrasted with indirect racial discrimination as described in section 1(1)(b) and 1(1A). The only sort of discrimination with which this case is concerned is direct discrimination (it is of course also concerned with an allegation of victimisation but that is a separate matter which is addressed in a separate ground of appeal).

[19] The particulars of the complaint made by the appellant in the four combined applications to the Employment Tribunal are detailed in the Re-Amended Compendium Claim Document. The Claim Document extends to 25 pages and 107 paragraphs. As is explained by the appellant in para 3 in his written submissions it addresses 56 instances of conduct complained of as constituting direct racial discrimination. Instances 1 to 26 were alleged to have occurred at Babraham and instances 27 to 56 at Roslin. The date of the earliest instance is October 1991; the most recent is 30 September 2004. Paras 10 and 11 of the Claim Document provide a broad indication of the nature of the complaints:

"10. I was subject to a hostile work environment at Babraham from 1991 and at Roslin.

11. In brief, despite pioneering and innovative work and excellent appraisals, my fellowship was unduly delayed and then when granted was not extended, I was removed from several positions without good reason and to my detriment, I was denied tenure, I was denied a head of Laboratory role, I was denied promotion, I was provided with inadequate facilities, my grant applications were obstructed or blocked, my staff were prevented from joining me or targeted for unfavourable treatment due to their support of me and I was made subject to a glass ceiling. A white UK scientist would not have been treated in this unfavourable manner."

The appellant's position in evidence was unequivocal. As is recorded at para 329 of the Employment Tribunal's Decision it was that "his treatment at both Babraham and Roslin was conscious, in many respects concerted, blatant, and for the most part, committed by people [he] described as liars and racists." The appellant's representative then developed that line in his cross-examination of the respondents' witnesses, many of whom he labelled as liars when he came to his submissions (Employment Tribunal Decision para 235).

Direct discrimination: the approach taken by the Employment Tribunal in considering the appellant's complaint
[20] The Employment Tribunal heard the evidence of the appellant and three witnesses led on his behalf. It heard the evidence of 24 witnesses led on behalf of the respondents. Based on the evidence of these 28 witnesses and 10 volumes of documentary productions, it made the findings of primary fact contained in paras 8 to 210 of its Decision. Understandably, given the nature of the appellant's complaint as set out in the Claim Document and the way it had been presented by his representative and answered on behalf of the respondents, the Employment Tribunal applied itself to an assessment of the quality of the evidence. An individual consideration of each witness led by the respondents is to be found at paras 343 to 376 of the Tribunal's Decision. The Employment Tribunal records at para 377 of its Decision that it had had no difficulty with the honesty and reliability of the three witnesses led by the appellant. At paras 377 to 379 it discusses the limited import of their evidence. The Employment Tribunal's assessment of the appellant and his evidence appears at paras 380 to 395. For the reasons there given it takes the view that where there were discrepancies as between the appellant's evidence and that of the respondents' witnesses it preferred the latter. At para 452 of its Decision the Employment Tribunal says this about the appellant:

"It is clear from the facts which we have held established that the [appellant] was a wholly unsatisfactory employee. We have held that the evidence showed him to be arrogant, vain, rude, and that he could be aggressive and a bully. As we also record, these characteristics had led to difficult interpersonal problems with fairly substantial numbers of individuals throughout the course of all the years covered by these claims of race discrimination and victimisation at both Babraham and Roslin. The [appellant] was, as we also record earlier, an extremely difficult individual at times to work for, to work with, and to manage."

[21] However, as appears from paras 417 to 446 of its Decision, the Employment Tribunal was also critical of the respondents, particularly as to their conduct following the appellant's intimation of an internal appeal against the refusal of the grievance against Professor Wilmut by letter of 16 January 2003 up to and including the dismissal of the appellant. This chapter was of particular significance. It led the Employment Tribunal to conclude that the appellant had been unfairly dismissed but it was also founded on by the appellant in presenting his complaints of direct discrimination and victimisation.

[22] The appellant's grievance against Professor Wilmut had been investigated by Professor Donachie and Richard Lilley. Notwithstanding that, they were then appointed to conduct what was described as an "appeal" against their own decision. At para 422 of its Decision, the Employment Tribunal, having noted that the sole burden of the "appeal" was a fresh investigation without any interview of Professor Wilmut against whom the grievance had been raised or the appellant, expressed the view that the appointment of Donachie and Lilley, given their previous involvement, was contrary to natural justice. Donachie and Lilley reported to Professor Goodfellow, chief executive of the first respondents who accepted the report and issued a decision on 14 July 2003 not upholding the appellant's "grievance". At para 426 of its Decision the Employment Tribunal notes Professor Goodfellow's confusion as between a "grievance" and an "appeal" and questions rhetorically how she could have accepted a report including allegations against the appellant (of harassment) about which he had not been given the opportunity to comment. At para 428 the Tribunal notes the assertion by John Withers, the Assistant Director and Company Secretary of Roslin, in a letter of 16 July 2003, that there had been a complete breakdown of the appellant's working relationships within Roslin, notwithstanding the absence of any evidence whatsoever of a breakdown of relationships beyond that between the appellant and Professor Wilmut. Thereafter, as the Tribunal accepted, the respondents appeared determined to dismiss the appellant. Withers invited Professor Archibald to investigate options open to management and, as he put it in his letter of 16 July 2003 to the appellant, "whether there is any means by which you can remain in the employment of [Roslin]". At para 434 of its Decision the Employment Tribunal accepted that of the options put forward by Professor Archibald in his report issued on 2 September 2003, the respondents' management made no attempt at exploring any of them with the exception of dismissal. On 19 February 2004 Withers instructed Clare Neilson, the second respondent's in-house solicitor, to undertake an investigation under the Staff Code to determine whether there was any disciplinary case to answer based upon the appellant's conduct. At para 436 of its Decision the Employment Tribunal recorded:

"In the event, Mrs Neilson concluded, after a lengthy investigation, that there was 'insufficient evidence' for misconduct. Notwithstanding, John Withers recommended to [Professor] John Clark that the [appellant] should be dismissed immediately."

Moreover, and this was something to which the Tribunal attached particular importance, it found that Withers deliberately did not disclose Clare Neilson's report to the appellant and then misled Sir Muir Russell and Professor Margaret Gill about the matter when they were considering the appellant's appeal against his dismissal (Decision paras 437 to 443).

The Employment Tribunal's conclusion on direct discrimination
[23] After what was an extensive treatment of the evidence under reference to the submissions of parties' representatives which it recorded together with a list of the authorities cited to it, the Employment Tribunal provided a succinct statement of its reasoning on the issue of direct racial discrimination at para 396 of its Decision:

"...we do not consider that, in applying the principles which the courts have indicated that tribunals ought to apply in seeking to ascertain whether there has been sufficient evidence to infer race discrimination to be drawn, the claims of direct race discrimination have been made out by the [appellant]. In the first place, we do not consider that there are any facts which justify any inference which appears to point to direct race discrimination. In that connection, we have considered the whole course of treatment afforded to the [appellant] over most of his career at the Babraham Institute and the whole of his career at Roslin. We have also considered whether the unreasonable treatment to which we shall advert when we consider the claim of victimisation infers that there were racial grounds for that treatment having regard to the cases of [City of Glasgow Council v Zafar 1998 SC (HL) 27, King v Great Britain - China Centre [1991] IRLR 513, Anya v University of Oxford supra and The Law Society v Bahl [2003] IRLR 640 affirmed in Bahl v The Law Society [2004] IRLR 799]. We have also scrutinised in detail the evidence given by all of witnesses who testified before us to determine whether we were entitled to reach the view that where we found witnesses unreliable or incredible, this entitled us to the conclusion that race discrimination could be inferred. We concluded, after that examination, that it could not. It must accordingly follow that the claims of direct discrimination made against the first two respondents fall to be dismissed."

The appellant's submissions
[24] The appellant develops his first ground of appeal in paragraphs 4 to 39 of his written submissions. He begins and ends with the assertion that the Employment Tribunal's decision, as encapsulated in its para 396, was perverse, and with references to Yeboah v Crofton supra and Mowlem Technical Services (Scotland) Ltd v King supra. In the intervening paragraphs he makes a variety of additional points, not all of which can easily be fitted into what is stated as being the ground of appeal, the essence of which lies in the proposition that no reasonable tribunal, on a proper appreciation of the evidence and law, would have made the material findings of primary and/or secondary fact.

The first ground of appeal: decision
[25] I shall deal first with the specified ground of appeal and then, to the extent to which I do not see them as being subsumed by the proposition that the findings of fact at para 396 of the Employment Tribunal's Decision were perverse, with what I have described as the additional points.

[26] In order to succeed in his complaint to the Employment Tribunal by reference to section 1(1)(a) of the 1976 Act, the appellant had to prove, on a balance of probabilities, that, in relevant circumstances, he had been the subject of racial discrimination. That meant satisfying the Employment Tribunal, to the requisite standard, of two matters of fact: first, that he had been treated less favourably than the appropriate comparator; and, second, that the less favourable treatment was on racial grounds. In Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 at para 7 Lord Nicholls describes the first of these as the "less favourable treatment" issue and the second, as the "reason why" issue. Only in the event of the Employment Tribunal being satisfied on both of these issues and making the consequential findings of fact could the appellant succeed. The Employment Tribunal did not make such findings and therefore dismissed the complaint of discrimination. The appellant wishes to challenge that decision but in doing so he requires to have regard to the nature of the proceedings before this Court. In an appeal under section 37(1) of the Employment Tribunals Act 1996 the Court has no jurisdiction to make or alter findings of fact or otherwise substitute its view of the evidence or conclusions on factual issues. The jurisdiction of this Court is limited to the correction of error of law, as explained in Melon v Hector Powe Ltd and Meek v Birmingham City Council. The appellant therefore has to argue, and in his first ground of appeal, he does argue, that in concluding that racial discrimination had not been established the Employment Tribunal came to a decision that was not only wrong but also perverse. In a passage adopted by Lord Osborne, giving the opinion of the Court in Mowlem Technical Services (Scotland) Ltd v King supra at para 18, which is found at para 93 of Yeboah v Crofton, Mummery LJ explains what such a ground of appeal involves:

"Such an appeal ought only to succeed where an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached."

That is the test which the appellant has to meet in order to succeed on the ground of perversity.

[27] In my opinion, the appellant does not meet that test. The Employment Tribunal made very full findings of primary fact. As I have indicated in brief summary and as the Employment Tribunal made explicit, some of these findings were adverse to and critical of the respondents. However, the Employment Tribunal did not consider that there were any facts from which an inference could be drawn pointing to direct race discrimination. Looking to the primary facts, although they demonstrate interpersonal conflicts involving the appellant, adverse opinions being expressed on the part of the respondents in relation to the appellant, outcomes which were not those wished by the appellant, and frankly unreasonable behaviour on the part of the respondents justifying an unchallenged finding of unfair dismissal, I do not see anything which might suggest to a reasonable tribunal that an inference of racial discrimination could be drawn. The Employment Tribunal accepted that the respondents had acted unreasonably in the procedures adopted following the appellant's appeal against the refusal of his grievance against Professor Wilmut and up to and including his dismissal. It also recognised that the evidence of two of the respondents' witnesses, John Withers and Richard Lilley, had been unsatisfactory and at least on some matters, incredible. However, following the consideration which is recorded at paras 415 to 453 of its Decision, the Employment Tribunal concluded that the undoubtedly unreasonable behaviour on the part of the respondents was wholly motivated by a desire to be rid of the appellant as an unsatisfactory employee. Now, the appellant specifically attacks as perverse the finding, initially made in para 452 of the Employment Tribunal's Decision, that the appellant was a "wholly unsatisfactory employee" on the basis that this had never been suggested by the respondents' witnesses (appellant's written submissions paras 34 and 48). It may well be that this description was never articulated by any witness but, having regard to the findings of primary fact, it was a conclusion that was open to the Employment Tribunal as finder of fact. I cannot regard it as perverse. It was a conclusion within the province of a fact-finder based on the evidence it had heard. That is very different from the Employment Appeal Tribunal substituting its views of the facts for that of the Employment Tribunal, as in Salamis (Marine & Industrial) v Forbes 2006 SC621, or the Employment Tribunal substituting its own views as to an applicant's actual conduct as opposed to what the respondent employer reasonably believed had been the applicant's conduct as in London Ambulance Service NHS Trust v Small [2009] IRLR 563.

[28] In considering whether the Employment Tribunal's determination that the findings of primary fact could not yield an inference of racial discrimination are to be regarded as perverse, it is important to bear in mind that the context of that determination, as is clear from the Decision, is the Employment Tribunal's assessment of the credibility of witnesses. Here I return to the nature of the appellant's case and the way it was presented before the Employment Tribunal.

[29] The appellant alleged that he had been subjected to a course of racially discriminatory conduct over a protracted period of time. Critically, his case was that this was deliberate and concerted, involving many instances and many different people. As I read the Compendium Claim Document, all of the people identified there as having been responsible for instances of discriminatory treatment of the appellant gave evidence before the Employment Tribunal. The appellant described them as liars and racists. Their credibility and the appellant's credibility insofar as his evidence contradicted their evidence were therefore sharply in issue. The Employment Tribunal recognised that, and therefore carried out an assessment of the credibility of each of the respondents' witnesses, then the appellant's witnesses and finally the appellant. The Employment Tribunal records its results at paras 340 to 395 of its Decision. The Tribunal was sharply critical of the evidence of John Withers and Richard Lilley but otherwise assessed the respondents' witnesses as credible, in other words they were to be believed in what they said about their conduct towards the appellant and their motivation for that conduct. That assessment is to be contrasted with the Employment Tribunal's assessment of the credibility of the appellant. For the reasons given in the preceding paragraphs of its Decision, it records, at para 395: "where there are discrepancies as between the [appellant's] evidence and [the respondents' witnesses'] evidence, we prefer the latter". No doubt, as the Employment Tribunal recognised at para 339 of its Decision, quoting from: Anya v University of Oxford [2001] ICR 847, "credibility ...is not necessarily the end of the road...", but everything depends on the circumstances of the particular case. Here, those whom the appellant had accused of persistent, deliberate and concerted racial discrimination had given evidence during a prolonged hearing before the Employment Tribunal. The Tribunal had the opportunity to gain an impression of each of these witnesses which for this Court is inaccessible. Under vigorous cross-examination they denied any racial motivation for their conduct and their decisions. They were believed and their evidence was preferred where it conflicted with that of the appellant, for reasons that the Employment Tribunal explained. Its decision was no doubt an anxious one, given the reason that it had to be critical of the respondents but, as the Employment Tribunal appreciated, it would have been an error to have drawn an inference of discrimination from the mere fact that the respondents had treated the appellant unreasonably: City of Glasgow Council v Zafar supra, The Law Society v Bahl supra at paras 93 to 101. The Employment Tribunal had to look at all the evidence which it had heard. That included the evidence as to the appellant's character and how that affected the views of at least some of his senior colleagues, as the Employment Tribunal recorded at para 452 of its Decision.

[30] As the appellant points out at para 7 of his written submissions, the Employment Tribunal did not apply the provisions of section 54A of the 1976 Act which effectively require a reversal of the onus of proof once primary facts are established which could give rise to an inference of racial discrimination or, at least in para 396 of its Decision, cite any authority discussing these provisions. At paras 12 to 25 and 27 to 30 of his written submissions the appellant develops the argument that this was perverse, when regard is had to the positive findings about him, the failure of the respondents properly to investigate the appellant's internal grievance appeal and the respondents then dismissing him from employment.

[31] On the view that it took of the primary facts in the light of its findings on credibility, the Employment Tribunal did not consider that it could conclude from these primary facts in the absence of explanation that the appellant had suffered unfavourable treatment on racial grounds. Accordingly, section 54A of the 1976 Act had no application. Whether an inference may be drawn from a series of primary facts depends upon a consideration of all these facts. Simply because the Employment Tribunal made some findings which were favourable to the appellant and some findings which were unfavourable to the respondents did not have the result that a reasonable tribunal would have concluded that, in the absence of explanation, the appellant should be taken to have suffered unfavourable treatment on racial grounds. The guidance on, inter alia, section 54A which was current as at the date of the Employment Tribunal's Decision was to be found in the decision of the Court of Appeal in Igen Ltd v Wong [2005] ICR 931. The Employment Tribunal records that Igen was cited to it, in para 222 of its Decision. It was unnecessary for the Tribunal to cite it further or to spell out its terms: Igen supra at para 16.

[32] At paras 9 to 11 of his written submissions the appellant criticises the Employment Tribunal's conclusion as an un-particularised global rejection of all racial discrimination claims on the basis of an adverse finding as to his credibility. The appellant summarises what he submits was the approach of the Employment Tribunal as a decision to dismiss all his claims "because he is a horrible man" (the "'horrible man' concept", as the appellant puts it).

[33] I see these criticisms as misplaced. In Shamoon v Chief Constable of the Royal Ulster Constabulary supra, having identified that a determination of whether a claimant has been subject to discrimination on a proscribed ground can be divided into a less favourable treatment issue and a reason why issue, Lord Nicholls immediately goes on to recognise (supra at para 8) that while a two step approach may be helpful in some cases, the issues are intertwined in what is a single question: did the claimant, on the proscribed ground, receive less favourable treatment than others? How that question is most appropriately tackled will depend on the particular circumstances of the case and an Employment Tribunal may find it helpful to postpone determining the less favourable treatment issue until it has decided why the treatment was afforded to the claimant (Shamoon v Chief Constable of the Royal Ulster Constabulary supra at para 12; also The Law Society v Bahl supra at paras 111 to 115). In the present case I see the Employment Tribunal as having focused on the reason why issue: had primary facts been established from which it could be concluded that the respondents had acted on racial grounds? In doing so, correctly in my opinion, it kept in view what was the nature of the appellant's complaint: that he had been subject to a deliberate and concerted course of racially motivated discrimination. It was not a matter of a number of unconnected instances. The complaint invited a global approach. In this connection I would refer to what was said by Mummery J (as he then was) delivering the judgment of the Employment Appeal Tribunal in Qureshi v Victoria University of Manchester [2001] ICR 863 at 875 in a passage approved by the Court of Appeal in Anya v University of Oxford supra at 852:

"In the present case, it was necessary for the tribunal to examine all the allegations made by Dr Qureshi of other incidents relied upon by him as evidentiary facts of race discrimination in the matters complained of. There is a tendency, however, where many evidentiary incidents or items are introduced, to be carried away by them and to treat each of the allegations, incidents or items as if they were themselves the subject of a complaint. In the present case it was necessary for the tribunal to find the primary facts about those allegations. It was not, however, necessary for the tribunal to ask itself, in relation to each such incident or item, whether it was itself explicable on 'racial grounds' or on other grounds. That is a misapprehension about the nature and purpose of evidentiary facts. The function of the tribunal is to find the primary facts from which they will be asked to draw inferences and then for the tribunal to look at the totality of those facts (including the respondent's explanations) in order to see whether it is legitimate to infer that the acts or decisions complained of in the originating applications were on 'racial grounds'. The fragmented approach adopted by the tribunal in this case would inevitably have the effect of diminishing any eloquence that the cumulative effect of the primary facts might have on the issue of racial grounds.

The process of inference is itself a matter of applying common sense and judgment to the facts, and assessing the probabilities on the issue whether racial grounds were an effective cause of the acts complained of or were not. The assessment of the parties and their witnesses when they give evidence also forms an important part of the process of inference. The tribunal may find that the force of the primary facts is insufficient to justify an inference of racial grounds. It may find that any inference that it might have made is negated by a satisfactory explanation from the respondent of non-racial grounds of action or decision."

It appears to me that what the Employment Tribunal did in the present case is exactly what Mummery J said that a tribunal should do. Its positive assessment of the credibility of the great majority of the respondents' witnesses provided a basis for finding that the allegation that they had been racially motivated had not been established. It was not a question of dismissing the appellant's complaints because he was a "horrible man" (an expression used not by the Employment Tribunal, but by the appellant's representative). That the Employment Tribunal found the appellant was "a wholly unsatisfactory employee" was of relevance to its consideration of why the respondents dismissed him from employment, it provided an explanation of the respondents' action, but I would not see there being any question of the Employment Tribunal having reduced its consideration of the appellant's complaint to an assessment of his character.

[34] At para 6 of his written submissions the appellant criticises the Employment Tribunal for not directing itself to section 3(4) of the 1976 Act. That subsection provides:

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

At paras 31 to 33 of his written submissions the appellant develops his criticism of the Employment Tribunal's failure to identify comparators by reference to whom the unfavourable treatment complained of could be established. The obvious comparator was Dr Wilmut. The appellant submitted that that failure had led to a situation where the Employment Tribunal treated him as if he were white. I do not regard this as a sound basis upon which to attack the Employment Tribunal's Decision. The appellant was required to identify comparators in his Compendium Claim Document and did so. The Decision did not turn on the identity of comparators or their qualities. As I have already indicated, the approach of the Employment Tribunal was to focus upon whether the primary facts, considered in the light of its credibility findings, allowed the conclusion that those who had been blamed by the appellant had been racially motivated in doing the various things identified in the Claim Document. It decided that they did not. In this connection I would refer again to the speech of Lord Nicholls in Shamoon v Chief Constable of the RUC supra. At para 11 Lord Nicholls says this:

"This analysis seems to me to point to the conclusion that employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was. Was it on the proscribed ground which is the foundation of the application? That will call for an examination of all the facts of the case. Or was it for some other reason? If the latter, the application fails."

[35] At para 26 of his written submissions, the appellant argues that he was less favourably treated by the Employment Tribunal than a convicted terrorist had been treated by the House of Lords (cf R (Hindawi) v Secretary of State for the Home Department [2007] 1 AC 484). The terrorist's rights under the European Convention on Human Rights had been respected whereas the appellant's had not. Now this may be intended by the appellant to be no more than an embellishment of argument by the addition of a rhetorical flourish and to be regarded accordingly. However if it is intended as a separate point, as I rather gathered from the appellant's oral submissions that it is, I would regard it as entirely without basis. The appellant asserts that the Tribunal failed to investigate his complaint and that therefore he was denied a fair hearing for determination of his civil rights for reasons that were discriminatory and that therefore there was a contravention of his rights under Articles 6 and 14 of the Convention. That is simply not so. The Employment Tribunal heard some 40 days of evidence and submissions. It made its determination upon the appellant's complaints. It did not require the respondents to explain why they had treated the appellant unfavourably because it did not consider that the primary facts which it had found would entitle it to infer that he had been treated unfavourably because of his race. As I have tried to explain, in my opinion that is a decision which was open to it on the evidence but even if that were not so, on no view can it be said that the appellant was denied a hearing or that the Tribunal discriminated in the way prohibited by Article 14.

[36] At paras 35 and 36 of his written submissions, the appellant criticises the Employment Tribunal for its failure to give weight to positive findings in favour of the appellant and for making findings contrary to evidence. However, what weight was to be given to particular findings in favour of the appellant and how possibly conflicting matters were to be reconciled are matters for the Tribunal as finder-of-fact. It is not for an appellate tribunal such as this Court to take upon itself decisions about the weight to be attached to particular facts or evidence: Eclipse Blinds Ltd v Wright 1993 SLT 664 at 667C.

[37] The appellant concludes that part of his written submissions which supports his first ground of appeal by contrasting and comparing his position on the facts with those of the complainants in the cases of City of Glasgow Council v Zafar supra; The Law Society v Bahl supra (upheld by the Court of Appeal in Bahl v The Law Society supra; Laing v Manchester City Council [2006] ICR 1519 at para 59; Madarassy v Nomura International plc [2007] IRLR 246; and Igen Ltd v Wong supra. That the appellant's situation might be compared favourably to that of complainants in other (reported) cases is something to which it was open to the Employment Tribunal to have regard in coming to its conclusions but only as one element within a large and complex factual matrix. What was in issue was whether the appellant had suffered unfavourable treatment on grounds of race in the particular circumstances disclosed by the evidence led before the Tribunal. What may have been found in other cases is of limited assistance in answering that particular question.

[38] In the whole circumstances it cannot, in my opinion, be said that no reasonable tribunal would have held that the complaint of direct racial discrimination had not been established. The first ground of appeal accordingly fails.

Ground 2: Direct Race Discrimination - Insufficient Analysis and Reasons
The duty to give adequate reasons
[39] This ground of appeal is framed as one of error in law by reason of failure properly to provide any sufficient analysis supporting its conclusion that there had not been direct race discrimination under reference to the decision of the Court of Appeal in Deman v The Association of University Teachers [2003] EWCA Civ 329, and then further error of law in failing to provide any proper reasons for its conclusions under reference to Meek v Birmingham City Council [1987] IRLR 250.

[40] There was undoubtedly a duty on the Employment Tribunal to give adequate reasons. However, I am not persuaded that there was a separate duty to provide a sufficient analysis supporting its conclusion, which on one reading of this ground of appeal taken with para 43 of his written submissions, the appellant might be thought to be suggesting. While it is true that at para 46 of Deman Potter LJ, speaking for the Court of Appeal, makes reference to the importance of providing an analysis of evidence, the authority that he is following is Meek. I would see sufficient analysis and adequate reasons to be simply slightly different aspects of the same thing. What that is was explained by Bingham LJ (as he then was) at para 8 in Meek v Birmingham City Council supra as follows:

"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;...

Nothing that I have just said is, as I believe, in any way inconsistent with previous authority on this subject. In UCATT v Brain [1981] ICR 542 Lord Justice Donaldson (as he then was) said at page 551:

'Industrial tribunals' reasons are not intended to include a comprehensive and detailed analysis of the case, either in terms of fact or in law ... The reasons are then recorded and no doubt tidied up for differences between spoken English and written English. But their purpose remains what it has always been, which is to tell the parties in broad terms why they lose or, as the case may be, win. I think it would be a thousand pities if these reasons began to be subjected to a detailed analysis and appeals were to be brought based upon any such analysis. This, to my mind, is to misuse the purpose for which the reasons are given.'

A further statement was made by my Lord in Alexander Machinery (Dudley) Ltd v Crabtree [1974] ICR 120 and these observations are cited by Lord Justice Eveleigh in Varndell v Kearney & Trecker Marwin Ltd [1983] 683:

'It is impossible for us to lay down any precise guidelines. The overriding test must always be: is the tribunal providing both parties with the materials which will enable them to know that the tribunal has made no error of law in reaching its findings of fact'"

The appellant's submissions
[41] The appellant develops his second ground of appeal in paragraphs 40 to 61 of his written submissions. While making specific complaints of lack of reasoning and lack of analysis, again he includes additional points that would seem to go well beyond the particular ground of appeal. At para 46 he criticises the Tribunal for allowing its adverse finding on his credibility to affect its assessment of the respondents' motivation and substituting its own evaluation or views for those of the respondents. The criticism of substitution of the Tribunal's own views is repeated at paras 51 and 52. At paras 54, 55 and 56 he criticises the Employment Tribunal for not comparing his credibility with that of witnesses led on behalf of the respondents. At para 48, expanding upon what appears in para 46, he criticises the Employment Tribunal for finding that the appellant was a "wholly unsatisfactory employee" in the face of positive evidence and findings about the appellant. At para 47 he criticises the Employment Tribunal for not having regard to the covert recordings as evidence and at para 50 for not citing Professor Peter Sharp. Again at paras 57 and 60 there is criticism of taking insufficient account of certain evidence. At para 58 there is criticism of not using Professor Wilmut as a comparator for the direct discrimination claim. Paragraphs 59 and 61 assert that the Employment Tribunal misconstrued certain facts. At para 49 the appellant complains of the Employment Tribunal's failure to give detailed reasons for and analysis of why it accepted the reason specified at para 406 of its Decision for the dismissal without investigation of his appeal against the refusal to uphold his grievance against Professor Wilmut.

The second ground of appeal: decision
[42] In my opinion, the Employment Tribunal in this case did provide an explanation as to why one party won and the other lost. It provided a detailed account of the facts and explained its reasoning. I would repeat, what the Employment Tribunal was required to consider in this case was an allegation of a course of racial discrimination involving a large number of people, which was deliberate and concerted. The Tribunal was not required to explain why it reached each finding of primary fact. It was however faced with a sharp question of credibility, not so much the credibility of the appellant, although that was relevant, but that of the respondents' witnesses, whose actions were alleged to have been racially motivated and who had been criticised as liars. The Employment Tribunal addressed the credibility of each of these witnesses and, for the reasons it gave, found all, subject to what it had to say about John Withers and Richard Lilley, to be believable. These reasoned findings on credibility, taken with the detailed findings of primary fact and the Employment Tribunal's statement that it could not conclude on the basis of these facts that the claims of racial discrimination could be inferred, provided a clear explanation of why the Tribunal had made the decision it had. Nothing further was required at para 396 by way of explanation. This ground of appeal accordingly fails.

[43] As far as the additional points going beyond this ground of appeal are concerned, insofar as I have not addressed them in what I have said in relation to the first ground of appeal, I would simply reiterate that the Employment Tribunal was the finder of fact. It is not for an appellate court to usurp that function.

Ground 3: Victimisation - perversity
Victimisation: the concept
[44] Before the Employment Tribunal the appellant complained that in addition to having been subject to direct discrimination, he had been subject to victimisation as defined in section 2(1)(a) of the 1976 Act. The concept of victimisation is explained by Lord Nicholls in Shamoon v Chief Constable of the RUC supra at para 5:

"Each of the statutory provisions also includes victimisation within the definition of discrimination. This is an essential ancillary safeguard. Persons who exercise their statutory rights are not to be penalised for doing so. Employers and others who retaliate in this way are guilty of discrimination. The victimisation provisions adopt substantially the same structure as the direct discrimination provisions, save only that the proscribed ground is different. In cases of direct discrimination, the proscribed ground is sex, or whatever. In cases of victimisation the proscribed ground is that the claimant committed one of the 'protected acts'; for instance, that the claimant had brought proceedings under the Act. Subject to this necessary adjustment, the definition of victimisation calls for a similar 'less favourable treatment' comparison. In the case of direct sex discrimination the comparison is between the treatment afforded to the claimant woman and that afforded to a man. In the case of victimisation the comparison is between the treatment afforded to the claimant and the treatment afforded to a person who has not committed a protected act."

Victimisation: the approach taken by the Employment Tribunal in considering the appellant's complaint
[45] The Employment Tribunal accepted that by making his various applications to the Employment Tribunal and by alleging racial discrimination in his appeal against the refusal of his grievance against Professor Wilmut the appellant had committed protected acts as provided by section 2(1)(a) and (c) of the 1976 Act. It further accepted that the events subsequent to the first of these protected acts and culminating in the appellant's dismissal from employment amounted to unfavourable treatment and that, for the purposes of the appellant's assertion that his dismissal was an act of victimisation, Professor Wilmut was an appropriate comparator, being someone who had not carried out a protected act. As the Employment Tribunal recognised, in terms of section 2(1) of the Act the question it had then to address was whether it was established that the less favourable treatment that the appellant had suffered was "by reason that" he had committed one or other of the protected acts. In addressing that question it followed the approach indicated by the majority of the House of Lords in Nagarajan v London Regional Transport [2000] 1 AC 501: victimisation will be made out if the protected act had a "significant influence on the outcome" (page 513A-B), irrespective as to whether the respondents were consciously or unconsciously motivated by the fact of the appellant having committed a protected act. The Employment Tribunal then, in paras 417 to 443 of its Decision, reviewed the evidence of events beginning with the investigation of the grievance against Professor Wilmut and finishing with the appellant's appeal against his dismissal. I have already summarised aspects of that review which were critical of the respondents and, in particular, of John Withers, the Assistant Director of Roslin, in the course of my consideration of the appellant's first ground of appeal. Following this review the Employment Tribunal focused the issues it had to determine in relation to victimisation in paras 444 and 445 of its Decision as follows:

"444. The question we have to ask ourselves is why John Withers would seek to mislead both Professor Gill and Sir Muir Russell, on the one hand, and ourselves, on the other, about this matter. What was his motive? We shall seek to provide the answer at our conclusion of this investigation into the actions of the respondents in their treatment of the [appellant] in order to consider whether the treatment in question was consciously or unconsciously motivated by the [appellant's] appeal, on racial grounds, against the refusal of his grievance against Professor Wilmut.

445. The next issue we take into account, and again, this was [the appellant's representative's] submission, was that despite the Neilson report having concluded that the [appellant] had not been guilty of misconduct, despite the [appellant] having 18 years' service with the first respondents without having been given any verbal or written warning, despite John Withers accepting, in the course of his cross-examination, that if Professor Wilmut and the [appellant] had been given an instruction to collaborate, 'I agree this may have been a way forward', despite the [appellant] having been given no opportunity to make representations about the Neilson report, despite the fact that the [appellant] was not given the benefit of any meeting before the final decision was taken, and despite the fact that when the decision was taken, the [appellant] was off sick as a result of stress, the decision to dismiss was taken by Professor Clark, very much on John Withers's recommendation."

[46] The Employment Tribunal then went on to consider whether the respondents' conduct running up to what it held to be an unfair dismissal, amounted to victimisation in terms of section 2 of the 1976 Act. Having acknowledged the difficulty of answering that question, the Tribunal concluded that it did not. On the contrary it was the view of the Employment Tribunal that the unreasonable treatment meted out to the appellant and culminating in his dismissal was wholly motivated by a desire to be rid of someone whom they saw to be an unsatisfactory employee who had failed to carry out the functions of the post to which he had been recruited. Then, at paras 455 to 468 of its Decision, the Tribunal reviewed the other instances which were the subject of complaint: the conduct of the internal appeal by Donachie and Lilley; the instigation, and the result, of the review by Professor Archibald; Professor Clark's refusal to approve an application for grant funding (which the appellant considered to be tantamount to dismissal); not allocating the appellant a MRC PhD student; allowing Professor Wilmut to describe the appellant as unmanageable; the conduct of John Withers; refusal of permission to attend the Nobel Symposium in the capacity of a member of Roslin; and the rejection of his appeal by Sir Muir Russell and Professor Gill, and concluded that in no case had victimisation been made out.

The appellant's submissions
[47] The appellant addresses this ground of appeal in paras 62 to 83 of his written submissions. He criticises the Employment Tribunal for misdirecting itself in relation to the application of section 54A(2) of the 1976 Act: Oyarce v Cheshire County Council [2008] ICR 1179 and on relying on The Law Society v Bahl supra and City of Glasgow Council v Zafar supra. He had been subjected to unfavourable treatment subsequent to his committing what the Employment Tribunal accepted were protected acts. The Tribunal should have simply applied a balance of probabilities test and concluded that the less favourable treatment had been meted out by reason of the protected acts. The Employment Tribunal had no basis to conclude that the appellant was a "wholly unsatisfactory employee". It had ignored the evidence of the appellant's attempts to collaborate with Professor Wilmut as it had ignored the evidence of Professor Wilmut's character defects. The appellant had not been dismissed while working at Babraham. He had been dismissed while working at Roslin. The proper conclusion to be drawn was that this was due to his commission of the protected acts. The reasons cited for the appellant being a "wholly unsatisfactory employee" applied equally to Professor Wilmut whom the Employment Tribunal had accepted was the appropriate comparator to the appellant and yet whom the Tribunal had substituted with a hypothetical comparator. That it was the appellant who was dismissed pointed to the reason for the dismissal as being that he had committed protected acts. The investigation by Clare Neilson was fundamentally unreasonable in that she was prevented from exploring matters which were the subject of the appellant's applications to the Employment Tribunal. Thus, as the applications were protected acts, the appellant suffered through the unreasonableness of the Neilson investigation by reason of protected acts. It was perverse on the part of the Employment Tribunal not to find that the appellant had been subject to victimisation.

The third ground of appeal: decision
[48] The law as to what amounts to a perverse decision of a question of fact applies to the third ground of appeal in relation to victimisation as it applies to the first ground of appeal in relation to direct discrimination. Accordingly to succeed the appellant must demonstrate that the Employment Tribunal reached a decision which no reasonable tribunal on a proper appreciation of the evidence and the law would have reached.

[49] In considering what the appellant puts forward in support of the proposition that the decision of the Employment Tribunal rejecting his complaint of victimisation was perverse, I would begin by respectfully agreeing with the observations of Lord Marnoch in the course of the oral hearing as to the irrelevance of argument on choice or construction of a comparator for the purpose of consideration of the appellant's complaint of victimisation. Clearly, the appellant had strong views about Professor Wilmut. He considered his position to be equivalent to his and that in comparison with Professor Wilmut he had been treated less favourably. I do not see the Decision of the Employment Tribunal putting that in issue. As far as victimisation was concerned, the Employment Tribunal determined the less favourable treatment issue in the appellant's favour. Precisely how the Employment Tribunal came to do that (and it explains its reasons) and in particular whether it was necessary to consider the position of a comparator in circumstances where the conduct of those for whom the respondents were responsible was at best inept, in the case of one employee deliberately misleading and, on any view, unreasonable, is, as Lord Marnoch pointed out, not relevant. It does not assist in determining the reason why issue which, in a case of victimisation is whether the less favourable treatment was by reason that the appellant had carried out protected acts.

[50] As the appellant correctly recognises in his written submissions, it was for him to establish that his treatment by the respondents was by reason of his having carried out protected acts. That could be done by establishing primary facts from which the necessary inference of a causal relationship could be drawn but, as the appellant points out under reference to Oyarce v Cheshire County Council supra, proof of facts which could give rise to an inference of victimisation in the absence of explanation does not shift the onus to the respondents to displace the possible inference. In that respect a complaint of victimisation is different from one of direct discrimination where section 54A of the 1976 Act applies. The appellant's representative had argued to contrary effect before the Employment Tribunal but, as appears from para 400 of its Decision, the Tribunal did not accept that argument. The appellant accepts that the Employment Tribunal was right not to do so. In the result the Employment Tribunal followed the approach commended by Neill LJ in King v Great Britain - China Centre [1992] ICR 516 at 529:

"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."

Again, the appellant accepts that the Employment Tribunal was correct to proceed as it did. What he does not accept is the conclusion that the Employment Tribunal came to. For the reasons that I have outlined, it is his submission that the Tribunal should have concluded, as a matter of inference, that his undoubtedly unfavourable treatment was by reason of the fact that he had carried out protected acts. What that comes to is an assertion that the Employment Tribunal came to the wrong decision on the facts. That is very different from saying that no reasonable tribunal would have held that the complaint of victimisation had not been established. That is the proposition that the appellant must make out in order to succeed. In my opinion it is not a proposition that can be made out. The Employment Tribunal heard the evidence and examined it critically. It found that the appellant had been treated unreasonably after he put in issue that he had been subject to racial discrimination. That he had complained of discrimination was, as the Tribunal recognised, a possible explanation for the unreasonable (and unfavourable) treatment. There was, however, at least one other possible explanation and that lay in the fact that the appellant was a "wholly unsatisfactory employee" and the perception on the part of senior officers of the respondents that he had wholly failed to cooperate with Professor Wilmut. That, as the appellant would have it, Professor Wilmut also had his failings and that the appellant claimed to have offered cooperation, was neither here nor there. The question was what the Employment Tribunal considered to be the motivation of the respondents (conscious or unconscious) in acting as they had. In the event the Tribunal concluded that the respondents were wholly motivated by a desire to be rid of the appellant as an unsatisfactory employee. That was an inference that was available on the evidence. Whether they were reasonable in being so motivated or whether they acted reasonably in the way that they went about dismissing the appellant (the Tribunal found that they did not) again is beside the point. What is to the point is whether, on the evidence which it accepted the Employment Tribunal can be said to have come to a perverse decision. In my opinion it cannot and accordingly this ground of appeal fails.

Ground 4: Bias
[51] The written submission for the appellant correctly identifies Porter v Magill [2002] 2 AC 357 as the leading case on apparent bias and further correctly identifies what was said by Lord Hope at para 103 as the modern test for the determination of apparent bias to be applied by courts in England and in Scotland: "...whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased", the fair-minded and informed observer being "neither complacent nor unduly sensitive or suspicious": Gillies v Secretary of State for Work and Pensions [2006] UKHL 2 [2006] 1 WLR 781, Baroness Hale at para 39, citing Johnson v Johnson (2000) 201 CLR 488. All that said, I would see this ground of appeal as unfounded.

[52] Bias may be apparent. It may be actual. In either case, when established, it will vitiate a judicial decision independent of any other error that may or may not be present. The position is explained by Lord Phillips of Worth Matravers MR when giving the judgment of the Court of Appeal in In re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700 at 711:

"35. The requirement that the tribunal should be independent and impartial is one that has long been recognised by English common law. An appellate or reviewing court will set aside a decision affected by bias. ...

36. ... We shall refer to 'the judge' to embrace all forms of judicial tribunal...

37. Bias is an attitude of mind which prevents the judge from making an objective determination of the issues that he has to resolve. A judge may be biased because he has reason to prefer one outcome of the case to another. He may be biased because he has reason to favour one party rather than another. He may be biased not in favour of one outcome of the dispute but because of a prejudice in favour of or against a particular witness which prevents an impartial assessment of the evidence of that witness. Bias can come in many forms. It may consist of irrational prejudice or it may arise from particular circumstances which, for logical reasons, predispose a judge towards a particular view of the evidence or issues before him.

38. The decided cases draw a distinction between "actual bias" and "apparent bias". The phrase "actual bias" has not been used with great precision and has been applied to the situation (1) where a judge has been influenced by partiality or prejudice in reaching his decision and (2) where it has been demonstrated that a judge is actually prejudiced in favour of or against a party. 'Apparent bias' describes the situation where circumstances exist which give rise to a reasonable apprehension that the judge may have been, or may be, biased.

39. Findings of actual bias on the part of a judge are rare. The more usual issue is whether, having regard to all the material circumstances, a case of apparent bias is made out. ..."

What Lord Hope was concerned with in Porter was apparent bias and what should be the test for determining whether it existed. What the appellant here alleges is actual bias (and indeed something worse) in that, in para 84 of his submissions he refers to the Tribunal "toiling away to find a mechanism whereby the victimization claims could be dismissed." That would seem to be an allegation going beyond even actual bias and suggesting malice. When I put that to the appellant I understood his response to be that he had tried to stop short of alleging premeditation, but he "almost [had] to go there". However, it is not necessary to allocate the appellant's allegation either to the category of actual or apparent bias or, alternatively, to some other category. The appellant puts forward no basis whatsoever for his assertion, beyond what he says was a misdirection in the application of section 54A of the 1976 Act; his criticism of the Employment Tribunal's failure, as he sees it, to apply the provisions of section 3(4) in selecting a comparator; and what he described as using a double comparator in relation to the victimisation claim. If these were indeed errors of law then of themselves they would not demonstrate bias but it would be unnecessary for the appellant's argument that they should do so. The allegation of bias is therefore not only unfounded but is also redundant. Simply being wrong in law is an insufficient basis for an inference of bias but being wrong in law provides a sufficient basis for reversing the decision complained of. Adding the (totally unsubstantiated) allegation that the Employment Tribunal knew it was going wrong in law takes the appellant nowhere. However, taking the appeal on this ground on its terms it fails. It simply has no basis.

[53] If, as would appear from his written submissions, the appellant intends to refer to the Employment Tribunal's decision as striking out his claim, I would observe that this is not the case: cf Anyanwu v South Bank Student Union and CRE [2001] UKHL 14 [2001] 1 WLR 638. What was being discussed in Anyanwu was a striking-out, at the initial stage, of an application said to be an abuse of process. In the present case the complaints were accepted by the Employment Tribunal and determined after hearing evidence.

Ground 5: The EAT
[54] While correctly stated as a ground of appeal, Ground 5 is, as it were, parasitical. As is recognised by the other grounds of appeal, the question for this Court is whether the Employment Tribunal erred in law. Were this Court to find that it did it would follow that, by refusing the appeal on grounds that succeeded in this Court, the Employment Appeal Tribunal would have erred. That is not however the case and this ground therefore fails also.

Conclusion
[55] In my opinion, the appellant has demonstrated no error of law on the part of the Employment Tribunal. I would refuse the appeal and reserve the question of expenses to enable parties to address the court on that matter.

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lady Paton Lord Brodie Lord Marnoch	[2011] CSOH 63 XA136/07 OPINION OF LORD MARNOCH in an appeal to the Court of Session under Section 37 (1) of the Employment Tribunal Act 1996 against an order and judgment of the Employment Appeal Tribunal dated 5 June 2007 by DR PRIM SINGH Appellant; against (1) BIOTECHNOLOGY AND BIOLOGICAL SCIENCES RESEARCH COUNCIL and (2) THE ROSLIN INSTITUTE Respondents: _________

Appellant: Party

Respondents: Truscott QC; Wright, Johnston & Mackenzie LLP, Solicitors

11 October 2011

[56] For the reasons given by the Employment Appeal Tribunal and for all the more detailed reasons now given by Lord Brodie I agree that this appeal should be refused.

[57] I would only add that even if this were a case in which, as regards the first ground of appeal, the primary findings in fact could be taken as yielding an inference of racial discrimination (thus bringing into play section 54A of the 1976 Act), it seems to me to be abundantly plain that the Employment Tribunal accepted the explanation that what motivated the Respondents' actings was their belief, right or wrong, that the appellant constituted a wholly unsatisfactory employee rather than any consideration of a racial character.