United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR P NICHOLLS (of Counsel) Messrs Hewitson Becke & Shaw Solicitors Shakespeare House 42 Newmarket Road Cambridge CB5 8EP
For the First Respondent For the Second, Third and Fourth Respondents	MR C SHELDON (of Counsel) Messrs Ironsides Solicitors Macaulay House 10 Friar Lane Leicester LE1 5QD NO APPEARANCE BY OR REPRESENTATION ON BEHALF OF THE SECOND, THIRD, AND FOURTH RESPONDENTS


 


MR JUSTICE LINDSAY: We have before us an appeal by TNT Express Worldwide (UK) Limited. We shall call the Appellant "TNT". TNT formerly employed Mr V.H. Brown, the Respondent to TNT's appeal. TNT carries on business in a substantial way, providing services to business in the collection and delivery, here and abroad, of parcels and packets. Mr Brown, who is black, was employed at TNT's Northampton depot as a local pick-up and delivery van driver from October 1994 "until - following a series of incidents at work during 1996 for which he was checked and disciplined - he was dismissed on the 21st February 1997 for misconduct in absenting himself from work - in defiance of TNT's written instruction that he was not to do so - on the 7th February 1997 to consult and seek advice ......". The consultation and seeking of advice was in relation to a case of racial discrimination which he then had current against TNT. That quotation is from the unanimous decision of the Industrial Tribunal at Bedford and Bury St Edmunds under the Chairmanship of Mr J. Wheeldon. The Industrial Tribunal heard evidence and argument over some 9 days on the subject of Mr Brown's complaints and its decision on "liability" was promulgated on the 7th October 1997. That is the first of two decisions against which TNT appeals. The second is an unanimous decision of the same Industrial Tribunal on "remedy", promulgated on the 22nd December 1997.

It is necessary first to set out something of the background to this matter.

On the 13th June 1996 Mr Brown presented an "IT1" form of complaint to the Industrial Tribunal. He described his complaint as "(1) Racial discrimination, (2) Unwarranted harassment, (3) Tampering with wages ....". The complaint was directed not just to TNT but also to two individuals, fellow employees of his at TNT. By amendment the acts complained of were enlarged and a third individual respondent - another fellow employee - was added. That amended complaint was due to be heard before the Industrial Tribunal on the 10th February 1997. Mr Brown was being assisted in the presentation of his complaint by the Northampton office of the Racial Equality Council and he made arrangements to meet a representative of that Council during his lunch-break on the 5th February 1997. When he got to the Council he learned that the representative had been unable to keep the appointment and Mr Brown therefore made a fresh appointment to meet him on the afternoon of Friday 7th February 1997, presumably the last practical opportunity for them to meet before the Industrial Tribunal hearing due to be heard on Monday the 10th.

On returning from the Council on the 5th February 1997 Mr Brown spoke to his immediate superior at TNT, Mr Hobbs, and asked if he might have leave of absence from work on the afternoon of the 7th February for the purpose of consulting with the Council's representative. Mr Hobbs told him that as far as he, Mr Hobbs, was concerned, Mr Brown could have the afternoon off but that he, Mr Hobbs, would need to refer to "personnel" for confirmation.

It is not entirely clear from the Industrial Tribunal what happened next and there is some confusion because the Tribunal sometimes refers to Mr Hobbs as Mr Dodd. Whether Mr Hobbs did go or did not go to "personnel" is unclear but it seems that the matter was referred to a Mr Kevin Matthews, then only recently appointed as TNT's Area Operations Manager (Midlands). He, "apparently" (as it was held) believing that Mr Brown had no holiday entitlement left, decided that Mr Brown's request for leave should be refused. That decision was made known to Mr Hobbs who told Mr Brown of it on the evening of Thursday the 6th February. Mr Brown responded that he would have to keep his appointment with his adviser in any event.

On Friday the 7th February Mr Brown worked the morning in the usual way. At lunchtime that day Mr Hobbs delivered to him by hand a letter over his, Mr Hobbs', signature but which in fact been written by TNT's Employee Relations Officer, a Mr Jamieson. We do not have the letter but the IT held, so far as relevant for present purposes, that it confirmed the decision to refuse Mr Brown leave that afternoon. It referred to the fact that he had already had 20 of his 22 days of holiday entitlement and it reminded him that breach of the instruction not to take leave could lead to formal disciplinary action which could result in summary dismissal.

Mr Brown took his leave nonetheless; he left at 1 p.m. on 7th February to keep his appointment with his adviser.

On the 10th and 11th February Mr Brown and representatives of TNT attended the first two days of the Industrial Tribunal, which was then adjourned to the 13th March. On the 12th February Mr Brown returned to work. He was then called to a meeting with Mr Jamieson. It was a disciplinary inquiry looking not only into the taking of leave on the 7th but also into another incident. Mr Brown was suspended from work.

A disciplinary hearing was arranged for the 21st February. It relation to the other incident Mr Brown was given a final written warning; as to the taking of leave despite the instruction not to do so, he was summarily dismissed. That was oral but was confirmed to him in writing on the 24th February 1997. We have not seen the letter.

Mr Brown exercised his right of internal appeal (though quite what was his right was we have not been shown) and the appeal was heard by TNT's Area General Manager (Midlands), Mr Bedborough. The Industrial Tribunal described the appeal as a very full rehearing. Mr Brown's dismissal was confirmed on the 7th March 1997 but dismissal on notice was substituted for summary dismissal for the offence of leave taking. We have not seen any writing recording the proceedings before Mr Bedborough, nor his decision, nor specifying what the notice to be given to Mr Brown was to be. The Industrial Tribunal took the date of the oral summary dismissal, the 21st February, to be the date of dismissal.

At the adjourned hearing before the Industrial Tribunal on the 13th March Mr Brown, then in person, asked to be allowed to amend his complaint to include unfair dismissal and victimisation under the Race Relations Act. Leave to do so was given. The hearing proceeded on the 14th March and later it continued in July and into August 1997 before the "liability" decision was promulgated on the 22nd December 1997. A good many of Mr Brown's complaints failed. No complaint against any of his individual fellow employees succeeded but, as for TNT, the unanimous decision of the Industrial Tribunal was as follows:-

"(a) the first Respondents [TNT] have discriminated against the Applicant contrary to the provisions of the Race Relations Act 1976 .... by refusing him time off work to consult and to take advice about his complaints to the Tribunal of race discrimination and by dismissing him but not otherwise ....

(b) ....

(c) the first Respondents [TNT] have unfairly dismissed the Applicant in breach of the right conferred on him by section 94 (1) of the Employment Rights Act 1996 ...."

Those were the only respects in which his claims succeeded. The Industrial Tribunal held in Mr Brown's favour that the refusal to give him leave on the 7th February amounted to discrimination by way of victimisation contrary to the provisions of Section 2 of the Race Relations Act 1976, made unlawful in the employment context by way of Section 4 (2) (c) of that Act. Section 4 (2) provides as follows:-

"(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) ....

(b) ....

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

If the refusal of leave was discrimination within the Act then it would seem to be unarguable but that the dismissal was here unlawful within Section 4 (2). But was the refusal of leave a discrimination?

To answer that one has to look at Section 2 (1) of the Act which 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 -

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

(b) ....

(c) ....

(d) ....

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".

It is convenient to call the matters referred to in (a)-(d) "protected acts", a description which is frequently used and which would seem to be consistent with what one would take to be the broad intended object of the legislation.

Was Mr Brown treated less favourably in the relevant circumstances than TNT treated or would have treated other persons? If he was, was that "by reason that" he had brought proceedings under the Race Relations Act against TNT or against his individual fellow employees, a protected act?

Similar questions arose in Nagarajan -v- London Regional Transport [1998] IRLR p. 73 in the Court of Appeal. Peter Gibson L.J., dealing with a victimisation case said at p. 76 paragraph 13:-

".... it is clear that there can be no discrimination by way of victimisation without two tests being satisfied. The first is that in relevant circumstances the discriminator treats the person victimised less favourably than in those circumstances he treats or would treat other persons. There must therefore be a comparison made with other persons, often called 'the control group', in those circumstances in order to determine whether less favourable treatment is established. It is common ground that in that comparison the members of the control group must be those who have not done the protected act. For my part, in agreement with the EAT, I would further limit the control group to those whose applications had gone astray as otherwise one is not comparing like with like."

The reference there to applications going astray was because the complainant's application for a job was there alleged by the respondent prospective employer to have gone astray. Peter Gibson L.J. was there adopting the "but for" test used in cases of direct sex discrimination - see, for example, James -v- Eastleigh Borough Council [1990] IRLR p. 288 per Lord Goff at p. 295 (with our emphasis):-

"... However, in a majority of cases, I doubt if it is necessary to focus upon the intention or motive of the defendant in this way. This is because, as I see it, cases of direct discrimination under s.1 (1) (a) can be considered by asking the simple question: would the complainant have received the same treatment from the defendant but for his or her sex?"

As the material words dealing with direct racial discrimination in Section 1 (1) (a) (".... he treats that other less favourably than he treats or would treat other persons") are so similar in function to the words of the racial victimisation provision in Section 2 (1) ("... if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons") and so similar to the corresponding provisions of the Sex Discrimination Act 1975 it seems to us that it would be difficult to resist the use of a corresponding "but for" test in racial victimisation cases even if Nagarajan supra did not bind us to do so.

In using the "but for" test and, in so doing, contemplating, as in, "a control group", commonly a hypothetical construct rather than a real group, it is common ground before us, as it was in Nagarajan, that the control group must be composed of those who have not done the protected act in issue. But, beyond that, how far does the control group have to take on the characteristics of the alleged victim and the alleged circumstances surrounding him so as to make the comparison like-with-like save only for the omission, in the control group, of the protected act?

Mr Nicholls argues that a control group must be composed so as closely as possible to replicate Mr Brown's position, taking out only the characteristic that Mr Brown had done a protected act, namely his launching of and persistence with Race Relations Act proceedings against TNT. That comparison alone, he says, would lead to a fully like-with-like comparison such as the Court of Appeal preferred in Nagarajan. The appropriate control group is thus, he says, a hypothetical one composed of persons who had launched and persisted with proceedings against TNT and who had asked for an afternoon off in order to take advice to advance those proceedings but with the only difference between them and Mr Brown being that the proceedings in the control group were not under the Race Relations Act. Suppose, for example, that Mr Brown had sued TNT for negligence in relation to a valuable parcel which, as a customer, he had delivered to them or suppose that he had been injured in the street by a TNT van and had sued TNT for personal injury. How would TNT have reacted in such a case had Mr Brown then asked for an afternoon off in order to see his advisers with a view to preparing or improving his case against TNT? If TNT in such a case would have refused time off and would have ordered him not to be absent (on the basis, perhaps, that to give him time off was one thing but to give him time off to bolster his case against TNT was another) then there would, for relevant purposes, have been no less favourable treatment of Mr Brown and thus no victimisation. However, says Mr Nicholls, the Industrial Tribunal never composed for itself such a control group and never asked itself on such a basis whether Mr Brown was less favourably treated than the members of such a control group would have been. That, says Mr Nicholls, represents a substantial error of law.

In answer Mr Sheldon first mounts an ingenious argument based on Section 3 (4) of the Act, which is in the following terms:-

"(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."

That, he says, ensures that in Section 1 (1) cases comparisons must be like with like leaving aside only the membership of a particular racial group. However, he goes on to say, that in so providing in relation only to Section 1 (1), the legislature has deliberately chosen not to require a full like-with-like comparison in other cases, such as cases under Section 2 (1). Given that under Section 2 (1) it is likely that comparisons will have to be made between cases of persons of a particular racial group and those of persons not of that group, albeit with other factors also being in comparison, it is not immediately clear why Section 3 (4) is limited in its application to Section 1 (1) unless its reference to "a person of a particular racial group" is intended to apply only to the reference in Section 1 (1) (b) to persons of a particular racial group. However, an answer would seem to be that, in Section 2, provision such as that found in Section 3 (4) is unnecessary because in Section 2 (1) there are already the necessary double references to circumstances ("in any circumstances relevant for the purposes of any provision of this Act" and "in those circumstances"). By contrast, in Section 1 (1), were it not for Section 3 (4), there would only be a single reference ("in any circumstances relevant for the purposes of any provision of this Act"). Thus the fact that Section 3 (4) is limited in its application to Section 1 (1) does not signify that comparisons under Section 2 may be other than like-to-like. We therefore do not accept Mr Sheldon's first argument.

In a further attempt to avoid a control group of the kind which Mr Nicholls says is required Mr Sheldon argues that Aziz -v- Trinity Street Taxis Ltd [1988] ICR p. 534 C.A. indicates that none such is needed. In Aziz the Court of Appeal looked back to Kirby -v- Manpower Services Commission [1980] ICR p. 420, a case heard by the EAT (Slynn J. and two Members). In that earlier case a clerk had "leaked" confidential information which had come to him from members of the public in the course of his duties. It was information that indicated apparent instances of racial discrimination. His manager, learning of this "leak", moved the clerk to a job where he had no immediate contact with the public. The clerk asserted that was victimisation. The Court of Appeal in Aziz found it to be rather unclear as to precisely what test had been applied by the EAT in Kirby but took it finally to be "whether people who give away information of this kind or information which is received in confidence would be treated on broadly the same basis" - p. 544 E. That formulation, by its reference to "information of this kind" - namely information relating to racial discrimination - would not have taken out the protected act there under consideration so it is hardly surprising that the Court of Appeal in Aziz described that test as not correct - p. 546 C. Slade L.J. continued at p. 546 C - D:-

".... The treatment applied by the alleged discriminator to the complainant has to be compared with the treatment which he has applied or would apply to persons who have not done the relevant protected act."

Unless a clear provision to the contrary is found, and here we find none in the Act, we would expect that any comparison which Parliament requires to be made after taking out the protected acts is to be as fully a like-for-like comparison as is possible; we do not read Aziz as precluding, as Nagarajan seems to have preferred, a comparison being made with a control group made up so as closely as possible to provide a like-for-like comparison leaving out only the existence of the protected act in issue.

However, that is to look at the legislation generally. Quite what characteristics and circumstances are the proper components of the control group required if one is to contemplate a like-for-like comparison will vary greatly from case to case, as the briefest look at Kirby, Aziz and Nagarajan shows. It is a subject upon which the parties need to make submissions, often also to present evidence, in the particular case. If the subject is not clearly raised in opening it will very often be convenient that it is raised by the Industrial Tribunal itself to avoid the possibility that one or other party or the Tribunal should proceed further without a clear idea of whatever control group is required for the particular case. The composition of the control group is not, though, a matter of law, or, at any rate, is not only of law. In Kidd -v- DRG (UK) Ltd [1985] IRLR p. 190 the EAT (Mr Justice Waite, (P) and two Members) dealt with the not dissimilar provisions required where a comparison is to be made under the Sex Discrimination Act and where the section of the population to be considered as the "control group" was in issue. It was there held at p. 195 paragraph 20:-

"The choice of an appropriate section of the population is in our judgment an issue of fact (or perhaps strictly a matter for discretion to be exercised in the course of discharging an exclusively fact-finding function) entrusted by Parliament to the good sense of the Tribunals, whose selection will be influenced by the need to fit it as closely as possible to the varying circumstances of each case. Of course in those exceptional cases where it can be shown that good sense has not prevailed, and the Tribunal has chosen to make the proportionate comparison within an area of society so irrationally inappropriate as to put it outside the range of selection for any reasonable Tribunal, then the Tribunal would have fallen into an error of law which could be corrected in the appellate jurisdiction."

It is correct, in our view, to adopt a corresponding approach to the composition of a control group for the purposes of Section 2 (1).

In the case before us the Industrial Tribunal, on the issue of the control group, said:-

"In the present case this requires us to compare the treatment accorded to the Applicant in respect of his request for leave with the treatment which would have been accorded to another employee who made a similar request but who had not complained to an Industrial Tribunal of alleged racial discrimination by TNT. Perhaps the true comparison to be made for this purpose is with another employee of TNT who sought on 48 hours' prior notice a half-day's leave of absence for the purpose of taking professional advice during normal working hours about some other litigious matter not in any way connected with his employment with TNT in, say, the County Court."

Mr Nicholls complained that the Industrial Tribunal has left out the crucial factor that the members of the control group should be taken not just to have been bringing proceedings not involving racial discrimination but bringing proceedings of that unprotected kind against TNT. In the abstract, as our earlier general observations would have indicated, we would have seen a considerable force in that objection but it transpired in the course of argument before us that no evidence or argument was led before the Industrial Tribunal that suggested that TNT's reaction would or might have differed had the unprotected proceedings taken by the control group been against TNT. Given that no argument or evidence suggested there was any such difference, it cannot, in our judgment, been "irrationally inappropriate" for the Industrial Tribunal not to reflect such a difference in their composition of the control group which they used. The control group the Industrial Tribunal did compose, to whatever objections it might otherwise have been vulnerable, was not such, having regard to the evidence and arguments laid before the Industrial Tribunal, that no Industrial Tribunal, properly instructing itself, could have used it. Thus on the particular circumstances of this case, having regard to the case as presented below, we can find no error of law in the Industrial Tribunal's composition of the control group which it used for the purposes of comparison.

That exhausts the first of the two tests to which Nagarajan refers. The second was described in that case at p. 76 as follows:-

".... The second test is that the discriminator treats the person victimised less favourably 'by reason that' the person victimised has done the protected act or 'by reason that' the discriminator knows that the person victimised intends to do the protected act or suspects that the person victimised has done or intends to do the protected act. In Aziz -v- Trinity Street Taxis .... at p. 207, this court held that each of the lettered paragraphs of s. 2 (1) 'contemplates a motive which is consciously connected with the race relations legislation'. It was held that on the true construction of s. 2 (1), if the necessary causal link was to be established, it must be shown that the very fact that the protected act was done by the complainant under or by reference to that legislation 'influenced' the alleged discriminator in his unfavourable treatment of the complainant. I confess that I have doubts as to whether the verb 'influenced' expresses the causal link with sufficient force, but it is unnecessary to say more on that point in this case. What is important is the emphasis on the motive consciously connected with the race relations legislation, as that suggests, .... that one must find an individual or group of individuals who were consciously motivated".

A little later at p. 77 paragraph 16 Peter Gibson L.J. continued:-

".... But in my judgment it is manifestly unfair to draw an inference from the absence of an explanation when the point has not been put to LUL [the employer] and no explanation has been requested from it. There may be an innocent explanation. For example it might be an incompetent oversight and as was pointed out by Leggatt L.J. in Qureshi -v- London Borough of Newham [1991] IRLR p. 264 at p. 267, 'Incompetence does not, without more, become discriminatory merely because the person affected by it is from an ethnic minority', or, I might add, merely because the person affected by it has done a protected act".

The statutory phrase "by reason that" (a usage unknown to Fowler) is far from clear in its intended effect.

Where the only reason for the less favourable treatment is a protected act then no particular difficulty is likely to arise but it may fairly be objected that frequently actions, especially actions impugned in litigation, have more than one reason ascribed to them. If a protected act was not, or protected acts together in aggregate were not, the sole reason for the impugned treatment which was, instead, by reason of a combination of one or more protected act and another or other reasons, could it still be said that the treatment was by reason of the protected act or acts (taking "by reason of" to have similar force to "by reason that")? If the singular word "reason" in "by reason that" were to lead to a conclusion that the protection would be conferred only where the protected act was, or the protected acts in aggregate were, the only reason for the treatment, then surely the broad purpose of the legislation would be very seriously undermined. Were that the case then victimisation would not exist if some other class of reason of little more than trivial weight were added to a protected act as the reason for the activity complained of. That seems unlikely to have been intended. Even leaving aside the Interpretation Act, it thus seems to us improbable that it is only where a protected act is the only reason for the unfavourable treatment that the statutory protection is to be conferred.

Once it is recognised that there can be more than one reason and mixed reasons, acts protected and unprotected, for an action or omission, then further problems arise. Let it be supposed, for example, that in an otherwise evenly balanced decision whether or not a man should be treated in a particular way, the fact that he has done a protected act is thrown into the balance. It could be, even though the protected act was properly given very little weight indeed in the decision making process, that nonetheless its tiny weight was sufficient, when added to other more substantial reasons for so acting, to tip the decision in the particular direction. In such a case could the less favourable treatment be regarded as having been by reason of that minuscule extra weight? In the sense that the decision would not have been the same but for the reaction to the protected act there is a sense in which the decision was by reason of the protected act, but can Parliament have intended the full weight of race relations litigation to fall upon a person when the particular discriminatory factor in issue on its own would have been quite inconclusive and where little weight was in fact given to it? The answer is hardly obvious. Might it not be that Parliament intends us, rather, to look for the sole or, if there is more than one reason, to the dominant reason? We recognise that it would have been easy for Parliament expressly so to provide had that been intended and that its failure to do so is a powerful argument against such a construction. For example, in the Employment Rights Act 1996 Section 98 (1) (a) one finds "the reason (or, if more than one, the principal reason) ...". Against that, Parliament could have expressly provided that it was to suffice if a discriminatory reason was amongst the reasons for the less favourable treatment. It is notable that the Disability Discrimination Act 1995 Section 5 (1) (a) uses yet another form - ("for a reason which relates to the disabled person's disability ..."). No such form of guidance is found in Section 2. Yet Parliament must have foreseen that there would inevitably be debate on the required nature of the reasons in these cases and must, in making no express provision on the point, have deliberately left the question for the Courts to decide. If that is right then the fact that Parliament has left the required nature unspecified is no reason why the Courts should not specify it. We recognise, too, that it might be argued that it can be difficult for the Courts or a Tribunal to arrange reasons in order of their precedence and weight. However, that last argument does not impress as the Courts are quite frequently called upon so to do and seem to have no particular difficulty in doing so. Thus in an area no-less complicated in terms of mixed motives and a multiplicity of reasons for actions, namely that of fraudulent preference under the Companies Acts 1929 and 1948, the Courts for many years looked to find whether there was a dominant intention to prefer - Peat -v- Gresham Trust Ltd [1934] AC 252 at 262. There, as a foreshadowing of issues arising in recent racial discrimination cases, it was held that the ascertainment of the relevant intention (a thing likely to be vigorously denied in any proceedings on the subject) could be a matter of inference as to which the ordinary principles adopted by the Court as to the drawing of inferences were to apply - see Re Kushler (M) Ltd [1943] Ch p. 248 C.A..

Left to our own devices, given that Parliament gives no further description than the bare words "by reason that", then, before coming on to the authorities, we would have taken Parliament in Section 2 of the 1976 Act to be intending that Tribunals should be looking to the sole or dominant reason when it uses the expression "by reason that". That would represent, as we see it, something of a middle course, a construction which can cope with there being more than one reason and with mixed reasons and which would confer protection in very many cases yet which would not introduce the weight of the Act's machinery where the weight given to protected acts had been insubstantial.

As for authorities, in Aziz -v- Trinity Taxis [1988] supra the judgment of the Court read by Slade L.J. dealt with a case in which, on the evidence, the protected act had no bearing at all on the activity being considered as being or not being victimisation - p. 547 H and p.548 A. Parliament, the Court of Appeal concluded, had not intended discrimination to be established:-

"........... even though the evidence shows that the fact that the protected act had been done ....... in no way influenced the alleged discriminator in his treatment of the complainant. In such a case, in our judgment, on the true construction of section 2 (1), if the necessary causal link is to be established, it must be shown that the very fact that the protected act was done by the complainant 'under or by reference to' that legislation influenced the alleged discriminator in his unfavourable treatment of the complainant."

Given that the protected act had there no bearing at all on the activity being considered by the Court that passage may be said to have been obiter. However, if the protected act has merely "to influence" the discriminator in his unfavourable treatment then, plainly, because, even where there are other and weightier reasons for so acting and even where the protected act has no substantial weight, its being thrown into the balance, so to speak, may, as a make weight, "influence" the decision so to act, our unguided preference for looking only to the sole or dominant reason would, were Aziz the last word on the subject, be denied us.

Aziz is not the last word. In Nagarajan -v- London Regional Transport [1998] supra there was comment on Aziz. In the leading judgment Peter Gibson L.J. at p. 76 paragraph 13, in the passage already cited, had some doubts as to whether Slade L.J.'s reference to "influence" in Aziz expressed the causal link with sufficient force. The passage was obiter and was commenting on obiter in Aziz but, even so, it would seem to leave us with an ability to revert to looking to the sole or dominant reason as being the reason that is to be contemplated as within the description "by reason that" in Section 2 (1). Of course, if more than one protected act contends for being within the description of a relevant reason then there is no prohibition upon the two or more being lumped together as an aggregate when what is the dominant reason comes to be considered.

With that approach in mind we revert to the decision of the Industrial Tribunal; on the subject of the causal link the Industrial Tribunal in our case said this:-

"We therefore consider the second requirement identified by the Court of Appeal namely that if he is to succeed the Applicant must satisfy the Tribunal of a causal connection between the fact that he had made his complaints of racial discrimination and his application to the Tribunal on the one hand and TNT's decision to impose less favourable treatment on the other. For that purpose we have given careful consideration to the credibility of the reasons which TNT have put forward for refusing the leave. They lie mainly if not entirely in the operational difficulty to which Mr Matthews alleges the business would have been subjected by reason of the Applicant's absence during the half-day in question. We do not begin to be persuaded by that evidence."

Later the Industrial Tribunal concluded:-

"In the absence of any other rational explanation we are driven to the conclusion that the true reason was indeed the fact that the Applicant had made his complaints of racial discrimination against the company and that Mr Matthews was not at this stage going to allow him time off work for the purpose of enabling him to take advice which might improve his chances of success in pursuing those complaints."

Mr Nicholls attacks that conclusion on several fronts. The Industrial Tribunal had earlier found, he pointed out, that Mr Matthews decided - "apparently because the Appellant had no holiday entitlement left" - that leave should be refused to Mr Brown. However, that belief and that refusal represented the state of things as they were on the evening of the 6th February. Before Mr Brown was refused leave when the letter was handed to him on the 7th February 1997 it had become plain to TNT, as the letter itself showed, that Mr Brown had not taken all the holiday entitlement to which he was then entitled. The Industrial Tribunal expressly so held. Had there been evidence that the decision to refuse leave continued to be that of Mr Matthews and had continued, for some reason, to have been based on a belief in a fully exhausted holiday entitlement, different considerations might have applied. However, the letter itself suggested that such a belief could no longer reasonably be held and even, although this point does not seem to have been investigated, the letter may have suggested, as it was written by Mr Jamieson and signed by Mr Hobbs, that it was no longer a decision of Mr Matthews or only of Mr Matthews which had refused the leave. Moreover, a conclusion that Mr Brown was not entitled to paid leave would have not shut the door against unpaid leave. In a very relevant finding the Tribunal held:-

"We find that, in general, employees of TNT who gave at least 24 hours notice were, as a matter of custom and practice, given any short leave of absence requested for domestic reasons without particularly close enquiry as to the quality of the reason".

Next Mr Nicholls complains as to the Industrial Tribunal's response to "operational difficulties". These were described as where the reasons for refusing leave "mainly if not entirely" lay; they were alleged by TNT to be the sole or dominant reason. It was only, says Mr Nicholls, with the wisdom of hindsight that the Industrial Tribunal was able to conclude that operational difficulties were not a reason for refusing leave to Mr Brown at the time. On the 7th February, he asserts, no-one could have been sure whether or not that would prove to be the case. It was irrelevant to the position as at mid-day on the 7th February that later it transpired that operational difficulties did not occur. We see force in that observation but there are other material findings which the Industrial Tribunal made. The Industrial Tribunal held, as we indicated above, that short leave of absence was commonly given, signifying that operational difficulties could readily be overcome in most cases. Also Mr Hobbs, Mr Brown's immediate manager, saw no difficulty when the request was made:-

"Mr Hobbs (who has not been called to give evidence to the Tribunal) indicated that so far as he was concerned the Applicant could take the afternoon off but that he would need to refer to personnel for confirmation".

Moreover the Industrial Tribunal held that TNT had contingency plans directed to dealing not just with Mr Brown's case but with any absence that arose on short-notice. The Industrial Tribunal's conclusion - "we do not begin to be persuaded by that evidence" - is not, in our judgment, a conclusion to which an Industrial Tribunal properly directing itself could not have come. TNT was thus in the position that the reason it had proffered as the sole or dominant reason was, it seems, not believed to be such.

Mr Nicholls next complains that it was not open to the Industrial Tribunal to conclude that there was victimisation "in the absence of any other rational explanation". The answer to that is three-fold. Firstly, there is a world of difference between the case before this Industrial Tribunal and the Nagarajan case where it was said, in the passage already cited, to be:-

"Manifestly unfair to draw an inference from the absence of an explanation when the point has not been put to [the Respondent] and no explanation has been requested from it".

Here the point was put, explanation had been sought, explanations had been given but were found not to be substantiated.

Secondly, we would expect that the propriety, in moral terms, of guarding persons against victimisation by reason of protected acts would be widely agreed to and supported and that, in turn, our view, as a matter of general observation, is that it is no more likely that persons will own up to such victimisation than they would be likely to own up to direct racial discrimination. In the direct racial discrimination context Neill L.J. in King -v- The Great Britain China-Centre [1991] IRLR p. 513 at p. 518, so far as relevant for immediate purposes, in the course of his familiar dictum indicated as follows:-

"(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. ....

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

(4) .... The Tribunal will look to the employer for an explanation. If no explanation is then put forward or if the Tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the Tribunal to infer that the discrimination was on racial grounds. This is not a matter of law but, as May LJ put it in Noone, 'almost common sense'.

(5) .... 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."

A corresponding approach can properly, in our view, be taken in victimisation cases. As our earlier reference to the law as it used to be in relation to fraudulent preferences shewed, there is nothing new or extraordinary or special to discrimination cases about a broad approach to inference where the Courts are dealing with states of mind not necessarily unambiguously translated into action and of kinds likely to be denied. Some such broad approach is inevitable.

Thirdly, by analogy with Re Kushler supra, it is not the case, where there is no direct evidence of victimisation, that the Court is bound to say that the onus on the complainant is not discharged merely because some other view of the facts not involving victimisation could possibly be taken. As Lord Greene M.R. pointed out in Kushler at p. 253, it is hard to imagine circumstantial evidence of facts in regard to which there might not be a possible alternative explanation.

With all of the three-fold parts of the answer in mind, we do not regard the Industrial Tribunal's conclusion "in the absence of any other rational explanation" as one to which they could not properly have come on the evidence laid before them and upon their own assessment of its credibility. It may well be debated in other cases whether the reference in Aziz that Section 2 (1):-

"..... contemplates a motive which is consciously connected with the race relations legislation"

does require, as Nagarajan suggests, that even where there is a corporate respondent:-

"One must find an individual or group of individuals who are consciously motivated".

Equally we do not need to ponder upon whether Nagarajan's conclusion that the subconscious influence of racial or protected acts does not suffice is correct - see Nagarajan supra at para 33. Leaving aside our being bound by the Court of Appeal, such points are not required to be decided here because the Industrial Tribunal here held that the true reason for Mr Brown being refused leave:-

".... was indeed the fact that the Applicant had made his complaints of racial discrimination against the company and that Mr Matthews was not at this stage going to allow him time off work for the purpose of enabling him to take advice which might improve his chances of success in pursuing those complaints." (our emphasis)

That, in our judgment, amounts to a sufficient identification of an individual and of a conscious motivation, even if that is indeed required and, given the breadth of inference which, by adoption of the dicta in Kushler and in King, we take to be appropriate, the Industrial Tribunal's conclusion cannot in our view be described as unwarranted.

TNT next takes issue with the Industrial Tribunal's conclusion that Mr Brown's dismissal for taking leave that afternoon in disobedience to an instruction was itself a further form of victimisation, beyond the refusal of leave itself. The Tribunal continued:-

"It necessarily follows further from that conclusion that the dismissal was unfair .........."

TNT argue that that reasoning is wrong in law. However, the reason shewn by the employer for the dismissal related to Mr Brown's conduct - disobedience - a reason within Section 98 (2) (b). The Tribunal therefore had to move on, inter alia, to "equity and the substantial merits of the case" - Section 98 (4) (b). Whilst there may in some exceptional circumstances be an instance where, despite the employee in question being victimised by his employer, both equity and the substantial merits of the case nonetheless could still lead to his or her dismissal being fair despite its close relationship, as here, with the victimisation, we cannot find any such exceptional circumstances here. Subject to the point next dealt with as to the appeal to Mr Bedborough we feel unable to describe the Tribunal's conclusion that the dismissal was unfair as involving an error of law.

As for the appeal to Mr Bedborough, TNT argues that if (which it denies) there was victimisation prior to the appeal, the appeal cured it. Of the appeal the Tribunal said:-

"The Applicant [Mr Brown] exercised his right of internal appeal and the appeal was taken by Mr Bedborough on 7 March in the form of a very full re-hearing of both the relevant issues concluding with his finding that the appeal should be dismissed subject only to the substitution of dismissal on notice instead of summary dismissal ...."

Later the Tribunal returns to the Bedborough appeal to add:-

"..... and we have problems with the fact that when he determined [Mr Brown's] appeal against dismissal Mr Bedborough decided for reasons which are not clear to the Tribunal to substitute a penalty of dismissal on notice for the relevant offence rather than the summary dismissal which Mr Matthews had imposed and which in ordinary circumstances might reasonably be expected as an appropriate sanction against an employee who has taken a half day off in flat defiance of his employer's instruction that he should not do so.".

TNT submit that the Tribunal could only properly have concluded that the dismissal was an act of discrimination if it had held that Mr Bedborough was motivated by racial considerations in dismissing the appeal. Of course, in one sense, he did not dismiss the appeal in that the sanction imposed on Mr Brown was lightened for reasons which the Tribunal found unclear. The Tribunal says little further as to its view of Mr Bedborough's appeal. There is a somewhat Delphic reference, after the Tribunal had said that Mr Brown's dismissal constituted a further discrimination beyond the refusal of leave, namely that it was a:-

"..... discrimination which the Tribunal regards as having been constitutionally incapable of rectification by Mr Bedborough's hearing the Applicant's appeal against dismissal".

However, we take that to mean that, as Mr Bedborough was dealing only with the question of whether Mr Brown should be dismissed for disobedience, he thus did not look at the earlier victimisation, the refusal of leave, and accordingly, however free from taint he might be, his decision could not cure the earlier default. Whilst we accept that an appeal can often correct defects encountered at an earlier stage, whether in a particular case that will be so will chiefly depend on a careful scrutiny of the facts in that case. Here we do not know what material the Tribunal had before it as to how the appeal to Mr Bedborough had been conducted nor, even assuming that the material it had was full, do we know what submissions were made to it as to the potentially curative effects of an appeal. If the appeal was properly, as it seems the Tribunal saw it to be, against only the dismissal for disobedience without its looking also into the propriety or otherwise of the underlying order that was disobeyed, we would not quarrel with the Tribunal's conclusion that the appeal could not here be curative of an earlier defect. But even if that was not the case (although we have no reason to think that the Tribunal got that wrong) we could not regard the appeal as curative merely on the Appellant's say so; we have no Chairman's notes nor any notes of Mr Bedborough's appeal. Either way, we do not have material justifying a view that the Tribunal was wrong to see the appeal as not having rectified the earlier defect.

TNT then turn to attack the Tribunal's conclusion at the "Remedy" hearing on 27th November 1997. Mr Brown was awarded £420 as a basic award for unfair dismissal and a sum:-

".... of £19480 less the full total of the social security benefits in the form of Jobseekers Allowance received by the applicant since his dismissal together with interest on part of that sum to be calculated".

TNT submits that the Tribunal erred in 5 ways.

First they say that as Mr Bedborough reached the same decision as the earlier disciplinary hearing and did so in the absence of any suggestion of discrimination, Mr Brown suffered no loss referable to such victimisation as consisted of the refusal of leave. We are not prepared to regard the appeal as curative of the earlier victimisation, as we have explained, and we do not have material enabling us to describe the appeal as free of (or suffering from) discrimination.

Secondly, TNT say that the Tribunal failed to reflect that, absent victimisation, there was nonetheless a high likelihood - TNT says 100% - that Mr Brown would have been dismissed. However the Tribunal specifically held

".... it is not appropriate to reduce the compensation which would otherwise be due because there is a significant chance that the applicant [Mr Brown] would have in any event been fairly dismissed in the foreseeable future".

They give their reasons for that view: they held Mr Brown valued his job and would have done his best to keep it. It cannot be said that was a conclusion they could not properly have arrived at.

Thirdly, TNT urges that Mr Brown contributed to his own dismissal by disobedience. But here the disobedience was to an order which, as victimisation under Section 2 of the 1976 Act, was unlawful under Section 4. We do not regard disobedience to an unlawful order as properly leading to a reduction in compensation.

Fourthly, TNT urges that by referring to a deduction for such Jobseeker's Allowance as Mr Brown received the Tribunal delegated to the Department of Social Security its role in deciding whether or not Mr Brown had mitigated his loss. We do not understand that to be the case. The Tribunal simply wanted to reduce the £19480 by whatever total of Jobseeker's Allowance Mr Brown had received and it expressed itself as it did because it did not know what that total was. There was no more to the reference than that.

Lastly, TNT attacked the Tribunal's inclusion in the award to Mr Brown of something to reflect deterioration to his health. The deterioration, says TNT, began before the victimisation and before the dismissal. That is the case, and the Tribunal was perfectly well aware it was; it says:-

"...... the deterioration began before he was dismissed"

and they go on to say (with our emphasis):-

"It is difficult indeed to assess the degree of severity of the hurt to his feelings caused by the fact that he has been dismissed for gross misconduct but we are in no doubt that it is severe and is an injury which will not readily heal".

The Tribunal thus appreciated there was ill-health that was, and other ill-health that was not, related to the victimisation and dismissal and, in quantification, looked only to the former. We see no error of law in that last assault on the Tribunal's reasons.

We have now, we hope, dealt with each of TNT's arguments. We dismiss its appeal both as to the Tribunal's decision promulgated on 7th October 1997 and as to the later "Remedy" hearing.