United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR E M GRANT (Community Worker) Northern Complaint Aid Fund Checkpoint 45 Westgate Bradford BD1 2TH
For the Respondents	MR M KURREIN The Solicitor's Office City of Bradford Metropolitan Council City Hall Bradford BD1 1HY


 


JUDGE J HULL QC: This is the first of two appeals to us arising out of the same case and we will deal therefore with this first one before we go on. It is an appeal against the decision of the Industrial Tribunal sitting at Leeds under the chairmanship of Mr Grazin, with two industrial members. They sat on 30 September and 1 and 2 October 1996 to hear the Appellant's application. She is a Community Social Worker employed by the City of Bradford Metropolitan Council.

The Applicant complained to the Industrial Tribunal that she had been the victim of racial discrimination, both direct discrimination and victimisation and the date which she fixed for that was 21 March 1995 and she complained on 2 June 1995. On 16 October 1996 the Tribunal promulgated their decision, which ran to 18 pages, and which I shall have to refer to as shortly as possible dealing with the complaints which were made to them and they held that those complaints were not made out. They dismissed them. The substance of it I shall try to convey shortly because, of course, this is not a matter which is to be published. It was held in private before the Industrial Tribunal and the facts are well known to the parties.

What happened was this. The Applicant is in a unique position so far as the Bradford Council is concerned. She is a Social Worker who, being herself of African-Caribbean race, was charged with special responsibility to the Afro-Caribbean community in Bradford. She did not, in general, carry out the work of other Social Workers with regard to children and have particular responsibilities of that sort, she had a more general responsibility. She comes into the story, so to speak, in this way. There was in Bradford a family which ran into grave problems. The mother was white, as it happens, and the father black. The mother was sent to prison for no less than seven years, so presumably a very serious matter was involved.

There were children who today are aged 11 and 6 - those are the two older children, as they are referred to - and twins who are now aged 4½, who were actually born while the mother was on remand before she was sent to prison. Arrangements, of course, had to be made for the children, no doubt with a great deal of trouble and difficulty, and it was arranged that the two older children should go to the maternal grandmother. She looked after them and the Applicant had particular responsibility with regard to their welfare. The twins, the youngsters, were put in the care of foster parents, who were referred to simply by initials at the hearing in front of the Industrial Tribunal. That couple, the foster carers, were a lady of mixed race and her partner who was a white man. So far as the twins were concerned the Applicant's responsibility was apparently restricted to arranging reciprocal visits and matters of an incidental sort like that.

On 6 July 1994 (and this is a part of the story which is of some importance) the Applicant paid a visit to the foster parents and, so far from merely attending to incidental details, this led apparently to deep discussions of a sort which caused the foster mother to be gravely upset. She, among other things, alleged that there was a conversation deeply offensive to her personally. She also said that information was given to her about the views of another Social Worker. Those are the general nature of the allegations and there was a letter of complaint, both against the Applicant and against this other Social Worker, a Ms Khan.

There were investigations. The foster parents' written complaint came in on 10 August and there were various matters which were investigated. As could be seen, by anybody who has looked through all the papers, not all was perfectly happy in the Social Services Department at this particular time, for all sorts of reasons which we are not concerned with.

Then there was an inquiry embarked on with a view to looking into the complaints. That seems to have dragged on for a very long time and when it did come to its conclusions they were not entirely satisfactory apparently and, moreover, the way in which they were dealt with so far as the Applicant was concerned was not entirely satisfactory.

The matters with which we are most concerned are these. In the middle of all these difficulties it became necessary to hold a statutory review of the situation of the fostered twins and then a difficulty emerged. Ms Khan who, I should have explained, was the person to whom the Applicant was responsible, proposed to hold the statutory review. It was in her view essential - and nobody has criticised this position - that the foster parents should attend, but they were fearful that at the review the Applicant would be present. To that they objected very much. They said adamantly that they would not attend if the Applicant was there. They were asked about that. They did not give any reason for it and none was forthcoming. So Ms Khan took the decision that she would hold a statutory review in the absence of the Applicant and a date was named and, in the event, when the Applicant turned up - she apparently had not been warned about the fact that she was to be excluded - she was told that it had, in fact, been adjourned; and she thought that that was further aggravation of the position. She is, it seems, a sensitive lady and I should have said she has, on two previous occasions, made complaints of racial discrimination against her employers, both of those happily being settled.

The statutory review hearing was adjourned to 7 December 1994 and on that occasion neither Ms Khan nor the Applicant attended, the Applicant because, of course, she had been excluded from the review. The foster parents were there, and others, and the review was duly held.

Then continuing with the story about the management enquiry, the Applicant was given what was called feed-back. Mr Thompson, who is the Area Manager, was giving her the feed-back and I believe Mr Grant, her representative here today, was present; and, says the Applicant, that feed-back was thoroughly unsatisfactory. She was very definitely of the view that she was being accused of impropriety in connection with her visit of 6 July 1994. It has been suggested that she had visited without giving any notice; that this was, indeed, her usual practice; and that she had been guilty of various pieces of misbehaviour. Mr Thompson gave no decisions on any of these matters and in the view of the Industrial Tribunal Mr Thompson was primarily concerned to prevent such matters happening again.

So that was the outline of it. Now we have to look and see what the Applicant complained of. She complained to the Industrial Tribunal as follows. She said that the management of the Social Services had failed to take seriously the evidence which she provided to the Investigating Officers during the course of the investigation. They had reprimanded her for making unannounced visits; ignored the passing of information about her from supervision sessions to the foster parents - that was alleged; made recommendations assuming her guilt without making any findings from the investigation; delayed publication of the report into the investigation and prevented her from attending the review. Those were the allegations which she made to the Industrial Tribunal. The Industrial Tribunal, as I say, spent three days over the hearing. They reached many conclusions. I am not going to go right through them.

Among other matters, and this is very important, the Tribunal found that, unhappily, the evidence given by the Applicant on a number of matters was evidence which they could not accept. They, generally speaking, preferred the evidence which was adduced on behalf of the Respondent and eventually, having dealt with a number of collateral matters, set out the history at great length and with great fairness. Having referred to the authorities, which Mr Grant had referred them to, and being attended by Mr Kurrein (I should have mentioned this, it is very important) as Counsel on behalf of the Authority, they then came to the vital part of their decision. They said, at paragraph 54, page 17 of our bundle:

"We therefore set out our findings on each of the specific complaints which are in time, pursuant to the first Decision of this Tribunal. There are four such matters, as amplified by the Further and Better Particulars served on 22 January 1996, and with which we deal in chronological order.

1. That the Applicant was Prevented from Attending the Review originally fixed for 14 November and subsequently heard on 7 December 1994.

a) We are in no doubt that the applicant was treated less favourably than her chosen comparator, Ms Khan. ... .

b) It is not quite as clear but, on balance, we accept that the applicant suffered a detriment, as that phrase has been interpreted in Jeremiah v Ministry of Defence [1979] IRLR 346 CA, to which we were quite properly referred by Mr Grant. Detriment exists if a reasonable worker would or might take the view that the [refusal to allow the applicant to attend the Review in question] was in all the circumstances to her detriment. That seems to us to apply ... .

c) However, it is also necessary for the applicant to show that the exclusion of her from the Review was on racial grounds. In that context, we refer, of course, to the guidance in King [King v British China Centre to which they had been referred]. Whilst we accept that the respondent has not at any stage admitted discrimination and that we must draw inferences, we have little difficulty in accepting the explanation for the exclusion of the applicant which has been tendered by the respondents' witnesses and which is contained in their contemporary documents. All of that evidence points to an overwhelming case for saying that the presence of the foster parents at that Review was vital, by comparison to the need for the attendance of the applicant. The applicant questioned that finding, because she said that no proper enquiry was made as to whether the foster parents were justified in taking that view. It seems to us hardly surprising that they would take that view. Whatever was or was not said by each of the parties at the meeting on 6 July 1994 (and it is not necessary for us to reach any formal finding as to that) it is quite clear:-

i) That the meeting went on for between three and four hours. That is an abnormal length of time for a meeting which was intended to have a very simple purpose, namely to make arrangements for respite care.

ii) It follows that if the meeting did last that long, very serious matters must have been raised on both sides. It is hardly surprising that there was very great strength of feeling on both sides and that that would continue for some months thereafter.

iii) Whether or not the complaint was justified, it is hardly surprising that the foster parents would not feel happy to attend a meeting with the applicant whilst that complaint was under investigation.

We take the view that the respondent had no choice but to act as it did and, accordingly, we do not find that the exclusion of the applicant was on racial grounds. That particular complaint is therefore dismissed."

Then they went on to deal with other matters of complaint which seem to us to be, in the circumstances, only of tangential importance to this appeal so we will not go through them. They found in each case, in so far as there was any discrimination or less favourable treatment, that it was not discrimination on the ground of race. So they finally said, at paragraph 55:

"It only remains to deal with the complaint of victimisation. As we have indicated above, there was no evidence whatsoever before the Tribunal that the actions of the respondent were in any way caused by or occurred by reason of the two earlier complaints. The suggestion was not put in cross-examination to the three witnesses and, accordingly, there were no admissions or evidence to that effect whatsoever. We have no difficulty in rejecting that complaint as entirely ill-founded."

Now, on the face of it, all those matters are matters of fact which were thoroughly explored by the Tribunal with the aid of Counsel, who was in a difficult position because, of course, he was the only legal representative in the sense of belonging to the legal profession. Mr Grant was also doing his best and, no doubt, it was a very good best, to lay the appropriate authorities and the right evidence in front of the Industrial Tribunal, but clearly there were difficulties.

We have look to see, for the purpose of this appeal, what errors of law are alleged to be contained in this decision. The first one which is put in the Skeleton Argument (I will refer to that rather than the short Notice of Appeal) is this. It is said:

"The Tribunal held that the Appellant was not only treated less favourably than Ms Khan but that she had also suffered a detriment [and then Mr Grant refers to the passages I have read]. The Respondent failed to provide an explanation as to why Judith Kahn was allowed to attend the Review [as I said, eventually she did not, but it is almost a non-point. It was intended that she should attend] whilst the Appellant was not allowed to attend. Yet the Tribunal held that the Respondent had not discriminated against the Appellant on racial grounds. This finding is not in line with the principles set out in King v The Great Britain China Centre [1991] IRLR 513 [which are then set out]."

And then Mr Grant goes on:

"The Respondent failed to offer an explanation as to why Judith Khan and not the Appellant was allowed to attend the Review."

Then he refers again to King v The Great Britain China Centre. Then, having said in terms that the Respondent failed to offer an explanation, 5 lines down:

"In coming to this conclusion, the Tribunal accepted, as satisfactory, the explanation offered by the Respondent."

It seems a strange way of putting it. The fact is that when one looks at it, not only was an explanation offered which was completely inconsistent with racial discrimination, but in the view of the Industrial Tribunal it was the only option open to the Authority; the foster parents' attendance was essential. They were not prepared to attend if they though they would, or might meet the Applicant there. Ms Khan was the next up in line and she had direct responsibility for the children, unlike the Applicant who was concerned only with the older children, not with the twins, except to the limited extent I have mentioned. The Tribunal thought that that was not merely an honest reason, but an irresistible reason for the course which the Respondents took and they accepted that as being put forward in good faith.

In those circumstances it seems to us that no further question arises. If an explanation is put forward, which has nothing to do with racial discrimination and if that is accepted, there is no room for inferences or anything of that sort. The fact is that it is then established that the discrimination, which undoubtedly took place, is not racial discrimination at all, but discrimination or difference of treatment on excellent and, indeed, irresistible grounds. So there it was.

Then Mr Grant glossed that position and put forward a further contention, as it seemed to us. He referred to the case of Showboat Entertainment Centre Ltd v Owens [1984] IRLR 7, and he said, it is not just racial prejudice by the discriminator himself, but racial prejudice which relates to somebody else, which can enable a complainant to say that the discrimination which took place was based on race. The foster parents complained of the Applicant's racial views, and, said he, it is clear from documents, in particular one document at which the Tribunal looked, that is the letter of complaint of 10 August, a long letter - we have only seen two pages of it - but it is quite clear that that letter related to the conversation of 6 July and it certainly suggested that, on that occasion, a number of matters which related to those views were discussed.

So, says Mr Grant (I hope I do justice to this) the fact was that the foster parents were motivated by racial considerations in refusing to come to this meeting and to meet the Applicant there. If the Authority was uncertain on that matter, they should have made a most diligent enquiry and insisted on knowing why it was and, in failing to do that and ascertain the matter, then they were, in effect, acting on racial grounds in refusing to allow the Applicant to be present at this meeting which eventually took place on 7 December.

What is said by Mr Kurrein about that is this.

"That is entirely wrong in law. We are concerned and the Industrial Tribunal was concerned to look to see whether the grounds on which a difference was made between Ms Khan and the Applicant were grounds of race, or for reasons of race. The Tribunal was obliged to look, and could only look, at the authority, the Respondents and their employees, to see whether there was any such discrimination. We are not concerned to enquire into the motives of others in such circumstances as these because those were not grounds or motives or reasons of the authority."

We accept that submission. We think that the submission which is made to us that the authority were bound to enquire diligently (and I suppose it would be a general duty) wherever they were minded to make any difference between any of their employees, who happened to be of different race, to see whether some of the materials, or all of the materials for making that difference were occasioned by or related to distinctions of race by third parties or fourth parties or total strangers, it would put a quite absurd and improper burden and that is not what the statute says. The statute requires us to look at the reasons for which the authority discriminates. So, as I say, we reject Mr Grant's submission on that extended position, or it might be called a rider to the main proposition. We find that the Industrial Tribunal were entitled to proceed in the way they did and so far as their decision involves a decision of law, that they were bound to act in that way.

Now we come to a matter which has given us the most anxiety and that anxiety has, for reasons which I will try to explain, been allayed by what we have heard. There came a time, it is said (and we are not for one moment doubting what Mr Grant says about this) when he wished to refer to the continuation of the enquiry which I have mentioned. As I said, the conclusions of the enquiry, which were in part at any rate explained to the Applicant on 21 March 1995, were not entirely satisfactory apparently, and those conducting the enquiry were asked to proceed with it, to re-open matters, and to reach, if they could, more definite conclusions on various matters. They did reopen their enquiry and, after the complaint had been made on 2 June, they then produced a further report which apparently is of considerable length. We have not seen the whole report. Parts of it are from pages 200 to 210 of the bundles which are with our papers. They have been added by Mr Grant and we have looked at those. Mr Grant wished to refer to them in the course of cross-examination at the Industrial Tribunal and he says that he was stopped. It is also suggested that he was anxious to put them in in the course of the Applicant's case. The Applicant's sworn affidavit about this was sent to the learned Chairman of the Industrial Tribunal so that he could comment on it. He frankly had to acknowledge that his memory of these matters was not perfect, but he nonetheless wrote a long letter in which he dealt with them. He said, save for pages 201-202, which we will refer to in a minute:

"I confirm that the Tribunal did not look at or consider any documents which came into existence after the application was filed at Central Office on 7 June 1995. On reflection, I rather think that we only looked at the two letters because we had been asked to do so by Mr Grant immediately after the luncheon adjournment on the first day.

" ... I confirm that the Tribunal did not look at or consider any documents from 178 onwards.

I have carefully looked through my notes of the applicant's evidence in chief. I cannot find any reference to any page numbers post 177. I therefore think it unlikely that the applicant is correct in the matters set out in paragraphs 2, 3 and 4 of her affidavit. I cannot however categorically say that the applicant is not correct."

And he had heard many cases since then, but then he refers to a note that he had taken in the course of the hearing and he said:

"Applicant now refers to page 210 but ruled not admissible because the documents came into existence after the application was filed. "

Page 210 is a list of conclusions of the inquiry after they had made these further investigations and further reflections and reached further views.

Mr Grant says that this is an inquiry which, being reopened and continued in this way and reaching a fresh conclusion, threw a different light on matters and he says that, among other things, the inquiry concluded - this is at the bottom of page 201 at which the Tribunal did look:

"Our view is that Asher being excluded from the reviews, has exacerbated the situation and left the council open to severe criticism. Asher's (the Appellant's) job description states under the range of duties:

'2. undertake investigations into prospective foster parents and supervise fostering arrangements in both private and Local Authority approved cases',

By excluding her from reviews, she is therefore not able to do her job. We consider that some discussion or compromise should have been considered earlier."

And then going through matters at which the Chairman and his members did not look, we see that the inquiry members have considered the position of the Applicant. They felt that to some extent (perhaps not surprisingly, in view of the complaints that she has made) she has become somewhat isolated in the organisation. They felt that, in some ways, she was protected. In some ways she was complaining of being marginalised and they say they would rather support that view. They referred to the failure to invite her to the statutory review and they criticised the failure to address the real underlying issues and perceptions about each other in the organisation.

They considered the position of Ms Khan. They considered that it may be that another Social Worker has been indiscreet in communicating with the foster parents. They go into a number of matters. They go, sympathetically, to the question of the cultural needs of the twins and the Applicant's concerns about those. I will not go on. This is quite a substantial re-treading of the ground which they had trodden before and they reached views, which in some cases were the same and conclusions which were the same. In some cases they expressed a different emphasis and certainly they showed considerable sympathy with the Applicant in a number of matters. They were right to point these matters out; of course they were; they had been asked expressly to think about them again. Mr Grant says the Tribunal should have looked at these and he refers us to the case of Chattopadhyay v The Headmaster of Holloway School [1981] IRLR 487, in which this Tribunal, under the chairmanship of Browne-Wilkinson J, its then President, considered whether evidence of matters occurring after the complaint, that is after the proceedings had gone some way, might be admissible and this Tribunal said clearly that such matters might be admissible, if facts occurred after the complaint which indicated the particular attitude of people or motives earlier or threw light upon their actions earlier. Those matters, on basic principles, were relevant and admissible. For example, to take perhaps a ludicrous example, but a possible one: Suppose after a complaint had been presented, the person whose conduct was complained of remarked, as he hoped perhaps only among friends, "of course I only discriminated against this person because he or she was a black", one could hardly imagine that that would not be regarded as admissible evidence. But the Employment Appeal Tribunal added to those conclusions, which clearly we must follow:

"For those reasons, in our judgment, this evidence ought to have been admitted. Having said that, we are very conscious of the great dangers of opening too widely the ambit of an inquiry under the Race Relations Act. If this is done and not controlled, Industrial Tribunals will be faced with numerous issues on matters only indirectly relevant to the main issue."

And they call on all parties and tribunals to be diligent to try to avoid such matters.

Here, Mr Kurrein points out that all this material related to the reopening and reconsideration, by those who were carrying out the inquiry, of matters which had occurred before the complaint and their conclusions represented either the statement of matters which could perfectly well be laid before, and in most cases were laid before, the Tribunal, for the Tribunal's consideration, or else their own opinions, either opinions which were the same as those they had felt obliged to express before or opinions which, on reflection, they thought it right to change, add to, amplify or whatever it might be.

In those circumstances, it was for Mr Grant to show the Industrial Tribunal, if he could, that this material was clearly relevant to their inquiry - that it should, as a matter of law, be admitted by the Tribunal. In the case to which we have referred and in other cases, we are told, the Tribunal has adjourned when such an application is made, insisted on having particulars of exactly what issues the material was relevant to and exactly what parts of it were going to be referred to and what use was going to be made of it. We think that would be well justified, but a Tribunal is not bound to act in that formal way. It can invite submissions. It can look at the material itself if necessary. It can consider the matter and unless it is satisfied that the material is prima facie of probative value, then it is quite right to reject it. The opinions of the investigators into the facts were, on the face of it, irrelevant unless they disclosed fresh material.

The Industrial Tribunal is the body which had to form an opinion about what had happened, what it all added up to. Was it racially motivated? - was the behaviour of the Respondents just and rational and reasonable? - what did they make of the Applicant's behaviour? - whose word did they accept about various matters? All those matters they looked into and reached conclusions about. They were certainly not bound to look at the opinions of anybody else. Had some new fact been unearthed by the inquiry, which was of critical value or important, then of course Mr Grant could have said, "Yes, there is this new evidence, look at page 207. Look at what they say there. There has been no evidence about that and I want to call evidence about that, for example an admission by one of the Council's officers that they had been racially motivated" - something of that sort. But no, the evidence, such as it was, the parties had laid before the Industrial Tribunal and it was simply the inquiry into that evidence that was now sought to be put in, an inquiry taking place after the complaint.

We think in those circumstances, although of course it would have been more satisfactory if the matter had been the subject of a careful and lawyer-like ruling, as it certainly would have been if Counsel had been engaged on each side and there had been formal submissions to the Industrial Tribunal, we cannot say that there is any error of law shown to us here. It must be the commonest thing in the world, in any court or in any tribunal, for the Chairman to say, "Surely that is not admissible. I am not going to have that in". It happens all the time and all that it means is that the tribunal or court is saying, "You show me that this is relevant. Of course I will hear a submission, but I am not going to allow this in unless I am shown that it is relevant and admissible and that I ought to hear it". This Tribunal did not come to that conclusion, and was not made to come to that conclusion, and having looked at the material, it seems to us that they could not be made to come to that conclusion in any rational way.

So having considered both the main limbs of this appeal as carefully as we can, we have come to the conclusion that no error of law is shown to us. We cannot intervene on the facts. Our view of the facts is entirely beside the point. It was for this Tribunal to make up their minds about the facts. They did make their minds up in the sense which I have indicated and, in our view, there is no proper criticism in law which can be made of their decision and therefore we dismiss this part of the appeal.

An application is made to us for the costs of the appeal. We can only award costs if we are satisfied that an unreasonable or vexatious step has been taken or the appeal has been proceeded with unreasonably and we are not of that opinion.

We are not prepared to award costs of this appeal or any part of them to the successful party and I will explain, for the benefit for anybody who is not used to our procedure, that this is normal in this Tribunal; that we rarely award costs unless something of a quite unreasonable sort has happened.

______________________

We now turn to the second appeal which is made to us today. This is again an appeal by Ms Asher John Baptiste. It arises out of the proceedings with which we have just dealt and it concerns an order for costs which was made against her.

What happened in this case, as we see at page 22 of our bundle, is that whilst this case was pending, it was brought on a pre-hearing review before Mr Worrall, the Chairman of Industrial Tribunals. Under the Industrial Tribunals Rules, a pre-hearing review is dealt with as follows:

"If upon a pre-hearing review, the Tribunal considers that the contentions put forward by any party in relation to a matter required to be determined by a Tribunal, have no reasonable prospect of success, the Tribunal may make an order against that party requiring the party to pay a deposit of an amount not exceeding £150 as a condition of being permitted to continue to take part in proceedings relating to that matter."

And then for completeness I go forward to Rule 12. Under Rule 12(7):

"Where -

(a) a party has been ordered under rule 7 to pay a deposit as a condition of being permitted to continue to participate in proceedings relating to a matter,

(b) in respect of that matter, the tribunal has found against that party in its decision, and

(c) there has been no award of costs made against that party arising out of the proceedings on the matter,

the tribunal shall consider whether to award costs against that party on the ground that he conducted the proceedings relating to the matter unreasonably in persisting in having the matter determined by a tribunal; but the tribunal shall not make an award of costs on that ground unless it has considered the document recording the order under rule 7 and is of the opinion that the reasons which caused the tribunal to find against the party in its decision were substantially the same as the reasons recorded in that document for considering that the contentions of the party had no reasonable prospect of success."

What Mr Worrall, the Chairman, said in his decision on behalf of the Tribunal was as follows. He records that the Applicant did not attend, but she was represented by Mr Erskine Grant, who is before us today, of the Northern Complainant Aid Fund. The Respondents were represented by a Solicitor and both made oral submissions. He goes on:

"2 On the basis of the submissions and the documents and information before me it is clear that there is a good deal of conflict of evidence in this case. However bearing all the conflict of evidence in mind on the basis of the submissions and all the information before me I consider that the contentions that the applicant was subjected to race discrimination have no reasonable prospect of success."

Those words, of course, echo what is said in Rule 7(4): if the Tribunal considers that the contentions have no reasonable prospect of success the Tribunal may make an order. So then, having come to that conclusion he ordered the Applicant to pay a deposit of £70.

It is said that those reasons are inadequate. The fact is that all that the Chairman is required to do on such a pre-hearing review is to decide whether, in his view, the contentions made have no reasonable prospect of success. It is a fairly high standard, particularly difficult where there are contentions of fact; the case remains to be tried.

This Chairman felt able - he is a very experienced Chairman - to arrive at that conclusion. If he had said any more than he did it would have been a very difficult situation. Such remarks, without hearing the evidence, would have been very prejudicial and rightly considered so and would involve many assumptions and perhaps presumptions, in the unfortunate sense, on his part. So all he was required to do, having reached that conclusion, was in his discretion to make an order of up to £150. It is, of course, a very small sum in terms of legal costs, but it is intended that that order should fire a warning shot across the bows of a litigant who might be proceeding irresponsibly and without considering these possible consequences. It is not (with respect) enough to say, as Mr Grant has said to us, "Here one has prima facie evidence of discrimination, a difference between parties of different race and a detriment and therefore, one would look to see what could be said by way of explanation".

The fact is that in a multi-racial, multi-ethnic community of any sort every decision which involves, say, a black person and a white person, will inevitably involve discriminating between them, choosing between them. If it is an important decision, it will inevitably involve advantage to one and disadvantage to the other. To say that every such case inevitably justifies an application to an Industrial Tribunal on the grounds of race discrimination is quite clearly wrong and persons who make this very serious allegation of race discrimination must be prepared and will be expected by tribunals to back it up.

Here, this Chairman had heard what was said and formed a view on what he had read and on what had been said. After the decision the question of costs arose and was adjourned and there was the decision on it which is with our papers at page 3. There again, the parties were represented and the unanimous decision of the Industrial Tribunal was that the Applicant should pay costs of £2,500. The Tribunal went into the whys and wherefores of their decision with considerable care. They had regard to the fact that the Applicant was a comparatively well paid woman. They also had regard to the fact that the sum they were ordering was a substantial one but, of course, only a small part of the costs. If the Applicant wanted the costs taxed of course she could have that done.

There are two criticisms which are made on her behalf by Mr Grant. She says that first and foremost there was an application for an adjournment on the basis that this appeal was pending. Since the first appeal has been unsuccessful, that is a rather academic point to raise, but in any event, the Tribunal made its order in its discretion bearing in mind that the appeal was pending, or might be pending. It is said the Tribunal made a mistake in saying that it had not actually been filed, although it had been filed. The order was made expressly by reference to the appeal and of course gave liberty to apply in the event of the appeal being successful.

Then, having made that point, Mr Grant refers to the inadequacy of the reasons, as he puts it, which the Tribunal gave in its decision under Rule 7. I have already mentioned that. It is quite clear that this is a jurisdiction given to Tribunals in an endeavour to prevent unnecessary or hopeless litigation. It must be impossible, in most cases, for a Chairman to say, "This application has no prospect of success". What he is entitled to do is to say, "It seems to me as an experienced Chairman and taking into account such knowledge as I have of the way these things go, that this application has no reasonable prospects of success". Unhappily, the Chairman was quite right about that. The application, when it was heard, despite the conflict of evidence, resulted in a finding on all material points contrary to the Applicant's contentions and evidence; and a great deal of costs were run up. It is not like ordinary litigation in which, of course, costs normally follow the event. This is a special sort of litigation, but nonetheless there is provision for the Industrial Tribunal in proper cases to make an award of costs, if the jurisdiction under Rule 12(7) is successfully invoked. That occurred here and, having read the decision of the Industrial Tribunal, clearly a moderate and careful decision, though one which involves a measure of hardship for the Applicant, we have come to the conclusion that there is no error of law.

We, of course, cannot say that we would have reached the same conclusion and it would be quite idle for us to say whether we approve or disapprove of the decision. What we have to say is, is there any error of law? It is not shown to us that there is any error of law in the decision. We are not entitled to substitute our discretion for that of the Industrial Tribunal.

We therefore have to say that this appeal too has to fail and we therefore dismiss this second appeal.

Those are the reasons of us all.