United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR E GRANT (Representative) Northern Complainant Aid Fund Checkpoint 45 Westgate Bradford BD1 2TH
For the Respondents	MR M KURREIN (of Counsel) The Solicitor City of Bradford Metropolitan Council City Hall Bradford BD1 1HY


 


JUDGE PETER CLARK: We have before us an appeal by the applicant, Ms Val Rowlands, before an Industrial Tribunal sitting at Leeds under the Chairmanship of Mr C T Grazin, over six days in December 1995 and March 1996, against that tribunal's decision to dismiss her complaint of unlawful racial discrimination on a submission of no case to answer, and a cross-appeal by the respondent Council against certain of the tribunal's findings reached in the course of their full written reasons dated 16th April 1996.

Facts

We take the facts from the tribunal's reasons, bearing in mind that no evidence was called on behalf of the respondent.

The appellant was primarily employed as a Race Equality Officer with West Yorkshire Race Equality Council. In the course of that employment she provided advice and assistance to persons complaining of race discrimination and appeared on behalf of applicants as an advocate before Industrial Tribunals.

One such client was Mrs B Amos, who brought proceedings against this respondent and two of its officers under case number 6237/92. The nature of her complaint was that on 18th July 1992 two foster children placed in her care were removed by the respondent's Director of Social Services on 24 hours notice, and that this amounted to direct unlawful discrimination on the grounds of her race contrary to ss. 1(1)(a) and 4(2)(c) of the Race Relations Act 1976 ["the 1976 Act"]. Further, she alleged that the respondent had failed properly to investigate her complaints about that treatment.

On 6th/7th July 1993 Mrs Amos' complaint came before an Industrial Tribunal sitting at Leeds chaired by Mr P A Morris for the purpose of determining three preliminary issues which went to the tribunal's jurisdiction. One of those issues was whether, as a foster carer, Mrs Amos was employed by the Council within the meaning of s.78 of the 1976 Act. At that hearing she was represented by this appellant; the respondent by Counsel, Mr Shannon. For the purposes of the preliminary issues certain facts were agreed. In particular, it was common ground that a written contract existed between the respondent and Mrs Amos in relation to her fostering the children. No such concession is made in the present case.

The Morris tribunal resolved each of the preliminary issues in favour of Mrs Amos, for the written reasons sent to the parties on 3rd August 1993. A copy of those reasons was before the Grazin tribunal, and are before us.

Following the Morris tribunal decision the parties entered into negotiations with a view to compromising Mrs Amos' complaint. The appellant represented Mrs Amos in those negotiations. She met with Mr Michael Stow, the respondent's Assistant Director of Social Services, whom she had earlier met at the Morris tribunal hearing. This tribunal records her as feeling that the tone of Mr Stow's approach to her in connection with Mrs Amos' case was "hostile". They concluded that although those discussion terminated in early 1993:

"It is apparent however the Respondent had cause to remember the involvement of the Appellant in the claim by Mrs Amos and that the Appellant had cause to remember her involvement with Mr Stow."

In April 1995 the appellant made application to the respondent to become a foster carer. The tribunal found that the respondent operated two procedures for approving foster carers. The usual procedure involved approval being given by the respondent's Fostering and Adoption Unit ["FAU"]. This normally took one year before approval for eligibility to act as foster carer was given. The alternative procedure was for approval by Area Assessment. This was a 'fast-track' procedure, taking six months or less, and was normally used where an identified child was being considered for placement with relatives or friends. However on rare occasions it was used to cover a person not a relative or friend of the particular child, as was the case of this appellant.

At the time of the appellant's application two of the respondent's social workers, Mrs Sue Mearns and Helen Pollard-Atkins, were working with Child S with a view to finding her a long-term carer. The then placement for Child S was regarded as unsatisfactory.

Following internal discussions involving those two social workers and Sheila Bates, the relevant Senior Care Manager, it was decided that it would be beneficial if an approach was made to the appellant with a view to her fostering Child S. A number of meetings took place in May and June 1995.

In the course of discussions prior to 13th June 1995 the appellant was told that there were positive, primarily financial benefits to her if she was approved not only by the respondent's Area North Team but also by FAU. As a result, following approval and placement, she would receive initial financial support. That was important to her in view of her financial means.

On 13th June a meeting took place between the appellant, Mrs Mearns and Helen Pollard-Atkins. The appellant was told that the existing placement for Child S had broken down so that the child would be moved to link carers the following week. The tribunal found as a fact that the appellant was told at that meeting that the approval process for her would be carried out over the summer and that Child S would be placed with her by September 1995. Accordingly the appellant looked forward to speedy approval by the local area team and FAU over the following three months or so.

A further meeting took place on 23rd June, attended by the appellant, Mrs Mearns and Miss Bates. The appellant found the message confusing; she was told that approval would be through FAU although a longer time-scale would be appropriate; she was asked whether she was interested in long-term foster care and/or adoption and advised to keep all her options open. The possibility of fostering a teenager was mentioned.

On 26th June the appellant was telephoned by Miss Bates. She was told that no decision had yet been reached as to whether she would be approved by the respondent/FAU or by an independent body such as Barnardo's. No previous suggestion of an outside body being involved had been made. She asked for an explanation and was told that she had previously had "problems with Social Services". The appellant was surprised, believing that her previous contact with the Social Services Department in a professional capacity, representing Applicants, was quite separate from the question of her suitability to act as a foster carer. When she queried the position she was told that she might perhaps see it that way but that Mike Stow did not necessarily see it that way.

On 27th June the appellant wrote a letter to Miss Bates, which the tribunal described as self-explanatory. In it she set out the sequence of events as the tribunal found them to be and which we have set out above. She posed four questions, namely:

"1. Why the timetable apparently agreed with me on 13.6.95 is now not going to be adhered to.

2. What the "problems" are to which you referred on 26.6.95.

3. What reasons in relation to the best interests of [Child S] you have for changing plans.

4. Why an outside agency may be brought in to approve me."

and concluded by saying that unless she received satisfactory answers she could only assume that she had been victimised under the 1976 Act as a result of the assistance which she gave to Mrs Amos in pursuing her complaint.

Miss Bates replied on 3rd July. The tribunal concluded, without hearing from Miss Bates, that every possibly explanation was given to all four questions raised by the appellant. We shall set out two paragraphs taken from that letter:

"Finally, in relation to items 2 and 4 of your letter, I do remember this conversation about 'problems' and on reflection, the comments by myself were inappropriate. I did not know myself what the problems were other than that you had represented someone against the department. I had no idea what those issues were, or who they were about, and I did not ask because I did not see it as in any way related to my own, or the Area Social Workers role. You were quite right to correct me on this issue. My subsequent comment about Mike Stow was unnecessary and I apologise.

What confused the issue slightly for me, was that I had been made aware that final approval of adopters in Bradford, is by Mike Stow. I wanted you to be aware of that, and to find out if you had any concerns. If you did have concerns, my advice was that we could have offered independent approval. In fact the mention of Barnardo's was probably wrong, since if Mike Stow refused any carer, which then, either that carer, or the workers concerned disagreed with, the approval would probably be referred to the Director, as an independent person. I never intended you to understand that this should, or would happen, in your case. My discussion with you was absolutely not intended as prejudicial, or to give you the impression that you have been or might be, in any way victimised."

The tribunal thought that the appellant would be satisfied by Miss Bates' letter but she was not. She wrote again on 13th July asking:

"a) what the target date for placing Child S with her was going to be;

and b) for a clear outline how the approval process would be conducted by the FAU."

No substantive response was received to that letter, other than an invitation to the appellant to arrange an office interview and on 6th September 1995 the appellant presented her Originating Application to the Industrial Tribunal.

The complaint

Having outlined the facts alleged, the appellant concluded her complaint of unlawful discrimination contrary to the 1976 Act in this way:

"I believe that Social Services Department of Bradford Council, in changing the arrangements for approving me as a foster carer and in altering the deadline for placing the child with me, has discriminated against me contrary to the Race Relations Act 1976."

The Industrial Tribunal decision

The tribunal accepted the respondent's submission of no case to answer at the close of the appellant's case, and in so doing made the following findings:

(1) by a majority, that the relationship between a Local Authority and a foster carer amounted to employment within the meaning of s.78 of the 1976 Act.

(2) that the appellant had established a potential breach of s.4(1)(a), but not 4(1)(b) of the 1976 Act.

(3) that, by concession, the appellant was entitled to maintain a claim "on racial grounds" for the purposes of s.1 of the Act, in that she, although white, had represented applicants (including Mrs Amos) in race discrimination claims brought against the respondent.

(4) that similarly her case fell potentially within s.2(1)(c) of the Act for the purposes of pursuing a claim of victimisation.

(5) but that she had failed to show "less favourable treatment" for the purposes of ss. 1 and 2 of the Act when compared with a hypothetical applicant to become a foster carer, because she received more favourable treatment when on the "fast-track", and then reverted to the norm after 23rd June 1995, and

(6) although it was conceded that formal approval of a foster carer fell within s.12 of the Act, no breach of the section was made out.

A number of issues arise in the appeal and cross-appeal in relation to those findings. We shall take each in turn.

No case to answer

There is no doubt that an Industrial Tribunal is entitled to accept a submission of no case to answer in an appropriate case. However, it is a power which must be exercised with caution. Coral Squash Clubs Ltd v Matthews [1979] ICR 607, 611, per Slynn J.

In discrimination cases, Phillips J observed in Oxford v DHSS [1977] ICR 884, 887A, that:

"... it would only be in exceptional or frivolous cases that it would be right for the industrial tribunal to find at the end of the applicant's case that there was no case to answer and that it was not necessary to hear what the respondent had to say about it."

However, as Mr Kurrein points out, in that case Phillips J referred to the evidential burden shifting to the respondent. That approach has since been disavowed. see British Gas PLC v Sharma [1991] IRLR 101.

The correct approach is that identified by Neill LJ in King v Great Britain China Centre [1992] ICR 516, 528F - 529C:

"(1) It is for the applicant who complains of racial discrimination to make out his or her case. Thus if the applicant does not prove the case on the balance of probabilities he or she will fail. (2) It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers will be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely based on an assumption that "he or she would not have fitted in ". (3) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 65(2)(b) of the Act of 1976 from an evasive or equivocal reply to a questionnaire. (4) Though there will be some cases where, for example, the non-selection of the applicant for the post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds. This is not a matter of law but, as May L.J. put it in North West Thames Regional Health Authority v. Noone [1988] I.C.R. 813, 822, "almost common sense." (5) It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind both the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case."

Thus, submits Mr Kurrein, Phillips J proceeded on the wrong basis when considering the circumstances in which it is appropriate to uphold a submission of no case to answer in discrimination cases.

We accept the distinction drawn between the approach in Oxford and that in King, however, we draw attention to Neill LJ's reference to drawing inferences at the conclusion of all the evidence. It would, we think, be highly undesirable on the facts of this case for an Industrial Tribunal to accept the explanation put forward by the respondent for their treatment of the appellant solely from correspondence without hearing from the respondent's witnesses. However, that was not basis upon which this tribunal upheld the respondent's submissions. They found that the appellant had failed to establish less favourable treatment on her evidence. It is that finding which is at the heart of this appeal.

Less favourable treatment

S.1(a)(a) of the 1976 Act provides:

"(1) A person discriminates against another in any circumstances relevant for the purpose 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;"

and by s.3(4):

"(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."

Mr Kurrein submits that the tribunal was entitled to compare the appellant's case with that of a hypothetical applicant for foster care approval. It was not obliged to distinguish between an applicant on the "fast-track" and one who was processed in the usual way. It found that up until the 13th June the appellant was treated more favourably than normal, not less favourably. This appeal tribunal may only interfere with an Industrial Tribunal's finding if it would be said to be perverse. He relies, by analogy, on the judgment of Waite J in Kidd v DRG (UK) Ltd [1985] ICR 405 when considering the relevant 'pool' in a claim of indirect discrimination. It is essentially a question of fact for the Industrial Tribunal.

We accept that broad submission, but note that an appellate court will interfere in an appropriate case. see Jones v University of Manchester [1993] IRLR 218.

In our judgment the comparison made by this Industrial Tribunal, between the appellant's case and that of an applicant following the normal approval procedure is irrational, precisely because of the tribunal's finding that until 13th June 1995 the appellant was treated more favourably than a person to whom the normal procedure was applied. The only proper comparison for the purposes of s.1(1)(a) read with s.3(4) on the facts of this case must be between the case of the appellant and a hypothetical comparator who was placed on the fast-track for approval, but who had not represented applicants who had complained of unlawful race discrimination against the respondent. If, but for that 'racial' factor, the comparator would, in the judgment of the tribunal, have remained on the fast-track, whereas the appellant was removed from it, then the appellant was treated less favourably than her comparator. In these circumstances it will be for the respondent to provide an explanation and that will require evidence from it. Whether such explanation is adequate or satisfactory, and if not, whether the tribunal chooses to draw an inference of discrimination, will be matter for the Industrial Tribunal. That state was not reached in this case.

Victimisation

S.2(1) of the 1976 Act provides:

"(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-

...

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

It is accepted that the appellant did a "protected act" within the meaning of s.2(1)(c), namely representing applicants who brought complaints of unlawful racial discrimination against the respondent. The correct approach, applying the principles laid down by the Court of Appeal in Aziz v Trinity Street Taxis Ltd [1988] ICR 534, is first to make a comparison between treatment given to the appellant with that given to a person who had not done the protected act. That is the same comparison as that made under s.1 of the Act. It will then be necessary for the appellant to show a causal link between the treatment meted out to her and the fact that she had done the protected act. Again, that issue will generally depend upon the inferences which may be drawn by the Industrial Tribunal from all the evidence. No such finding was made by this Industrial Tribunal.

Unlawful discrimination

S.4(1) of the 1976 Act provides:

"(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;"

Leaving aside the meaning of "employment" in the present context, we are satisfied that the Industrial Tribunal correctly held that, on the facts as found, this case fell within s.4(1)(a) and not 4(1)(b). The procedure used to approve the appellant as a foster carer amounted to arrangements made for the purpose of determining who should be offered employment; however the alteration in procedure and time scale complained of did not constitute the terms on which employment was offered for the purposes of s.4(1)(b). That stage had not been reached by the time the appellant presented her complaint on 6th September 1995.

Employment

In our judgment, it follows that the appellant made out a prima facie case of unlawful direct discrimination contrary to ss. 1(1)(a) and 4(1)(a), and victimisation contrary to s.2(1)(c) and 4(1)(a) of the 1976 Act, subject to the question of whether the relationship between a Local Authority and foster carer amounts to "employment" within the meaning of the Act.

S.78(1) provides:

" "employment" means employment under a contract of service or of apprenticeship or a contract personally to execute any work or labour, and related expressions shall be construed accordingly;"

Mr Kurrein advances three arguments in support of his submission that the relationship here is not one of employment.

First, he contends that there is no contract between the parties. He took us to the Children Act 1989 and various regulations made thereunder, for the statutory framework for the approval and termination of approval of foster parents. In all such arrangements the welfare of the child is paramount. Following approval of a foster parent, no child shall be placed for fostering unless the Local Authority and foster parent enter into two written agreements covering those matters specified in Schedules 2 and 3 to the Foster Placement (Children) Regulations 1991. Paragraph 7 of Schedule 2 provides:

"7. To comply with the terms of any foster agreement, to care for the child placed with the foster parent as if he were a member of the foster parent's family and to promote his welfare having regard to the responsible authority's long and short-term arrangements for the child."

Regulation 7 of the 1991 provides for termination of a placement with a particular foster parent; in particular where it appears to the Local Authority that continuation of the placement would be detrimental to the welfare of the child, the child may be removed forthwith.

In developing this first submission Mr Kurrein accepted that the written agreements entered into pursuant to the 1991 Regulations bore the normal incidents of a contract; offer and acceptance and intention to create legal relations. Nevertheless, he argued that the relationship did not give rise to legally enforceable obligations; it was governed by a comprehensive statutory framework; it could be terminated by either party without notice; the non-terminating party could not sue in damages for breach by the other party; there was a lack of legally binding mutual obligations.

Secondly, he argues that if there was a contract it was not a contract personally to execute any work on labour, or if it was, that was not the dominant purpose of the contract. see Mirror Group Newspaper Ltd v Gunning [1986] IRLR 227.

Thirdly, he submitted that in any event the matter is not justiciable in the Industrial Tribunals. He points to the Industrial Tribunal's powers under the 1976 Act to make recommendations following a finding of unlawful discrimination. It cannot be right, he argues, for an Industrial Tribunal to recommend the placement of a child, or the approval of an applicant as a foster carer. Such a judgment can only lie with the Local Authority under the Children Act and Regulations made thereunder. Further, a Local Authority, faced with a discrimination claim under the 1976 Act will be placed in an impossible position in seeking to explain its treatment of the complainant in circumstances where it would be unable to rely upon confidential records.

Mr Kurrein has referred us to a number of authorities on the application of the s.78 definition of employment. In Daley v Allied Suppliers Ltd [1983] IRLR 14, the Employment Appeal Tribunal held that the relationship between a sponsoring company and a person gaining work experience under the then Youth Opportunities Programme did not amount to "employment" under s.78 of the 1976 Act. The majority found that there was no legally binding contract between the parties, and the appeal tribunal found unanimously that if a contract existed it was a contract of training, not one of service or for services.

Next, Sheikh v Chief Constable of Greater Manchester Police [1989] ICR 373. There, the Court of Appeal rejected the contention that the office of special constable fell within the definition of employment under s.78. Instead, the Act was held to apply to the applicant by virtue of the deeming provision contained in s.16 of the Act.

Finally, Wadi v Cornwall and Isles of Scilly Family Practitioner Committee [1985] ICR 492. In that case the Employment Appeal Tribunal held that the relationship between a doctor and the Medical Practices Committee and Family Practitioner Committee was not contractual, but that a doctor worked pursuant to arrangements made under a statutory scheme conferring rights and obligations. However, that decision must be read subject to the Court of Appeal decision in Roy v Kensington & Chelsea and Westminster Family Practitioner Committee [1992] IRLR 233, a case not cited to us, where it was held that the relationship between a general practitioner and the Family Practitioner Committee was contractually based. Nothing in the speeches of Lords Bridge and Lowry in the House of Lords expressly overruled that finding.

Having considered those submissions we reject them and uphold the majority view of the Industrial Tribunal that the relationship between a Local Authority and foster carer is one of "employment" within the meaning of s.78 of the 1976 Act for the following reasons:

(1) The definition of employment in s.78 is wider than the definition, which depends upon there being a contract of service, contained in s.230(1) of the Employment Rights Act 1996.

(2) The written agreements entered into between the parties pursuant to the Schedules to the 1991 Regulations impose mutually binding obligations for the duration of those agreements. The Authority is bound to provide support, training and financial support to the foster carer; the carer is bound to comply with the terms of the foster placement agreement, to care for the child placed with the foster parent as if he were a member of the foster parent's family and to promote his welfare. The fact that the agreement may be terminated without notice does not in our judgment prevent the agreements having contractual effect.

(3) The Industrial Tribunal majority was entitled to conclude that the contract contemplated that the carer would personally execute work and labour and that was the dominant purpose of the contract for the reasons set out at paragraph 25 of their reasons. We reject Mr Kurrein's submission that the dominant purpose of the agreements was the discharge by the Local Authority of its statutory obligations in respect of children in its care. It discharged those obligations, in part, by entering into such agreements with the foster carer.

(4) We are not persuaded that any of the authorities cited to us are on all fours with the facts here. In Daley, the unanimous finding of the Employment Appeal Tribunal was that if a contract existed its underlying purpose was not the provision of work or labour by the trainee, but to enable her to acquire work skills and experience. Here, we uphold the tribunal's factual finding that the dominant purpose was the execution of work and labour by the carer. What Daley did was to expose a lacuna in the protection afforded to trainees under the Act, caused by the then drafting of s.13. Consequently the section was replaced by s.7(2) of the Employment Act 1989 to cover such a case. In Sheikh it was found that the terms upon which the Chief Constable engaged a special constable were all at his discretion, with one exception in relation to exemption from jury service. We do not understand the obligations placed on both the Local Authority and a foster carer to be in any sense discretionary. Further, we think it significant that the Court of Appeal found that the position of special constable was covered by the deeming provision in s.16. Such a provision would be unnecessary had Parliament envisaged that the office of constable fell within the definition of employment in s.78. Further, the case of Wadi does not support Mr Kurrein's submission in the light of the subsequent Court of Appeal decision in Roy.

(5) Next, justiciability. We reject the implicit contention that there is any tension between Parliament's purpose behind the Children Act 1989 and the 1976 Act. On the contrary, we think that a Local Authority which discriminates against a potential foster carer on racial grounds fails to act in the best interests of a child in its care who may be placed with that carer. As the tribunal's power to make a recommendation under s.56(1)(c) of the 1976 Act, it is clear that a recommendation by an Industrial Tribunal, following a finding of unlawful discrimination, that a Local Authority approve the applicant as a foster carer would be made ultra vires for the reasons set out by Wood J in Sharma, paragraph 85.

(6) Finally, we do not accept that a Local Authority would be prevented from properly defending a complaint of racial discrimination on grounds of confidentiality. Confidentiality is frequently preserved by masking the identity of the individuals on discovery, and such confidentiality will, where appropriate, be retained throughout the Industrial Tribunal proceedings.

Section 12

S.12 provides:

"(1) It is unlawful for an authority or body which can confer an authorisation or qualification which is needed for, or facilitates, engagement in a particular profession or trade to discriminate against a person-

(a) in the terms on which it is prepared to confer on him that authorisation or qualification; or

(b) by refusing, or deliberately omitting to grant, his application for it;"

In this appeal Mr Grant challenges the tribunal's findings, contained in paragraphs 32-33 of their reasons, that the matters complained of by the appellant do not fall within either s.12(1)(a) or (b) of the 1976 Act.

It was conceded on behalf of the respondent that foster caring is a profession within the meaning of s.78(1) of the 1976 Act, and that approval of the appellant as a foster carer fell within the ambit of s.12.

However, the tribunal found that the mere suggestion by the respondent that approval be obtained from an outside body, Barnardo's, on 26th June 1995, did not fall within the meaning of the expression "the terms on which it is prepared to confer on him that authorisation or qualification" under s.12(1)(a).

In our judgment the tribunal placed an unnecessarily restrictive interpretation on those words. If it be found that the respondent did discriminate against the appellant in altering the basis upon which approval would be given, that is capable of falling within s.12(1)(a). However, we accept Mr Kurrein's submission that the tribunal were correct in finding that there was, on the appellant's case, no question of the respondent having refused or deliberately omitted to grant approval for the purposes of s.12(1)(b) at the time when the appellant presented her complaint on 6th September 1995.

Conclusion

In our judgment this Industrial Tribunal fell into error in the comparison which it made between the appellant's case and that of an applicant for approval as a foster carer following the respondent's normal, rather than fast-track approval procedure. Consequently it ought not to have dismissed the complaint at the close of the appellant's case, but gone on to hear such evidence as the respondent chose to call before deciding:

(a) whether the appellant received less favourable treatment than a hypothetical comparator whose application for approval was proceeding under the fast-track procedure, and if so, whether the difference in treatment was on the grounds of the appellant's race, in that she had in the past acted for applicants complaining of racial discrimination against the respondent,

(b) whether, if she received less favourable treatment, that was caused by her having done the protected act under s.2(1)(c) of the 1976 Act.

(c) whether, in either event, the appellant was discriminated against unlawfully within the meaning of s.4(1)(a) of the 1976 Act.

(d) Whether she was unlawfully discriminated against within the meaning of s.12(1)(a) of the 1976 Act.

Accordingly we shall allow the appeal, dismiss the cross-appeal and remit the case to a fresh Industrial Tribunal for consideration of these four issues.