United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR T KIBLING (of Counsel) Instructed By: Ms T Lewis Central London Law Centre 19 Whitcomb Street London WC2H 7HA
For the Respondents	MR P NICHOLLS (of Counsel) Instructed By: Mr R Steel Messrs Eversheds Solicitors Senator House 85 Queen Victoria Street London EC4V 4JL


 


MR JUSTICE CHARLES: The parties to this appeal are a Mr Lindsay (the Appellant and the Applicant before the Employment Tribunal) and Alliance & Leicester Plc (the Respondent employer).

1. The appeal is against part of the decision of an Employment Tribunal sitting at Stratford. The Extended Reasons for that decision were sent to the parties on 21 September 1998. The hearing took place over 17 – 21 August 1998 (inclusive) and 25 August 1998.
2. The decision of the Employment Tribunal was that the Appellant's claims be dismissed.
3. The Appellant had made two applications to the Employment Tribunal. By his first application dated 13 February 1997 he made a claim described in box 1 of his IT1 as Racial Discrimination / Victimisation.
4. By a second application dated 14 August 1997 the Appellant made a claim described in box 1 of his Originating Application as (1) Race Relations Act (2) Unfair Constructive Dismissal.
5. Save possibly to the extent that the second application repeated allegations of racial discrimination (as defined by s. 3(3) Race Relations Act 1976) and discrimination by way of victimisation (see s. 2 of the Race Relations Act 1976), there is no appeal against the dismissal of the Appellant's second application.
6. In our judgment the correct approach for us to take is to treat the allegations of discrimination by way of victimisation on which this appeal is based as being included solely in the first application. Indeed, in our judgment, that is the correct position at law. The Appellant, through his Counsel, accepted that this was the correct course. It follows that the second application has been dismissed in its entirety and no part of it can be re-opened (see, for example, Aparau v Iceland Frozen Foods Court of Appeal judgment 29/10/99).

The First Application

7. As mentioned above, and as appears from box 1 of the IT1 and the particulars contained in the IT1 this claim was for "Racial Discrimination / Victimisation".
8. We were told at the hearing before us (and it was common ground between Counsel, both of whom appeared before the Employment Tribunal) that prior to the hearing before the Employment Tribunal a Preliminary Hearing had taken place at which it had been agreed, or ordered, that the only claim being made by the first application was a claim of discrimination by way of victimisation.
9. It follows that this appeal relates only to a claim of discrimination by way of victimisation made in reliance on s. 2 of the Race Relations Act 1976. It further follows that all the claims made by the Appellant of racial discrimination pursuant to s. 1(1)(a) of the Race Relations Act 1976 have been dealt with and have been dismissed.
10. Before the Employment Tribunal the claim for discrimination by way of victimisation was put on a wider basis than the aspects of it which are the subject of this appeal. Again, therefore, this appeal only relates to the aspects of the claim for discrimination by way of victimisation that are covered by it and all other aspects of (or bases for) the claim for discrimination by way of victimisation have been dismissed and cannot be reopened by the Appellant.
11. The aspects of the claim for discrimination by way of victimisation covered by this appeal are shown and identified by paragraph 6 of the Notice of Appeal which is in the following terms:

"6. The grounds upon which this appeal is brought are:

(i) that the Employment Tribunal erred in law in considering the Appellant's complaint of unlawful race discrimination by way of victimisation and in the use of file notes and monitoring the attendance.

(ii) The decision in respect of this part of the claim was perverse."

12. We pause to comment that this description of the claim contained in paragraph 6(i)

of the Notice of Appeal does not accord with the statutory definitions of "discrimination" and "racial discrimination" contained in s. 3(3)of the Race Relations Act 1976. Of itself we accept that this is a small point. However, in our judgment, it is an indication of, or a factor giving rise to, our view that in dealing with the first application the Employment Tribunal failed to make a clear distinction between (1) a claim for racial discrimination pursuant to s. 1, and (2) a claim for discrimination by way of victimisation pursuant to s. 2. At the time that the Employment Tribunal decided this case the House of Lords had not heard and decided Nagarajan v London Regional Transport [1999] ICR 877 and therefore, as the Extended Reasons point out, existing Court of Appeal authority established that there was a clear distinction between the approach to be taken in respect of the two types of claim.

13. This appeal therefore relates, and relates only, to the approach and findings of the Employment Tribunal as to whether the allegations made by the Appellant in respect of:

(a) the file notes, and

(b) the monitoring of attendance

contain an error or errors of law or are perverse.

14. Further, the relevant law for the purposes of the first application, and this appeal, was, and is, the law relating to a claim for discrimination by way of victimisation pursuant to s. 2 of the Race Relations Act 1976. Since the hearing of this case by the Employment Tribunal the House of Lords in the Nagarajan case has decided that the approach to such a claim which had been set down by earlier authority was incorrect. The effect of that earlier Court of Appeal authority (confirmed in the Nagarajan case itself) was that an applicant had to establish that the protected act was the conscious motivation for the less favourable treatment alleged and established.
15. In this case there was no dispute that there was a protected act or acts. This is confirmed by paragraph 7 of the Extended Reasons which is set out later in this judgment. The position was that the Appellant first raised a complaint of racial discrimination with his Manager (Vicky Wilkinson in August 1996) and at a meeting on 11 September 1996 the Appellant raised a formal grievance with her and the Respondent employer's Personnel Adviser (Lesley Nicholson) in respect of the making of racist remarks, his failure to be promoted and the treatment of another black employee (Daniel Gary).

The Extended Reasons with some comments

16. Paragraph 2 of the Extended Reasons is in the following terms:

"2. The issues

By Application dated 13 February 1997 Adrian Richard Lindsay alleges racial discrimination/victimisation against the Respondent, Alliance & Leicester Plc, by which company he was employed on 13 June 1994 as a customer advisor at its branch at 85 Gracechurch Street in London. At the time of that Application he was still so employed by the Respondent and his complaint was succinctly put by his indication at Box 11 of that Application, namely that it '… is in relation to the victimisation that I have received as a result of raising a grievance in relation to the racial discrimination and harassment I was experiencing'. He said that his grievance related to his complaint of lack of opportunity for promotion, lack of access to training and development and being the target and witness to racial abuse and racial insensibility by senior members of staff. He said he had be (sic) constantly turned down for jobs which he had applied for within the Respondent group. He explained that the victimisation became first formally evident 'by way of file note dated 15 November 1996 which was highly critical of my performance, attitude and ability'. He directly associated his complaint of victimisation with other file notes of which he became aware subsequently."

We comment that this does not record that by the time the applications came before the Employment Tribunal it had been established that the first application was not one for racial discrimination as defined by s. 3(3)(b) of the Race Relations Act 1976 but was only a claim for discrimination by way of victimisation under s. 2 of the Race Relations Act 1976.

17. Paragraph 7 of the Extended Reasons is in the following terms:

"7. It also came to be agreed between the parties' representatives that it 'will not be necessary for the Tribunal to enquire into the question whether or not the initial grievance was justified. Without accepting that the grievance was justified, the Respondents do accept that it was bona fide'. The evidence in this case, therefore, was concerned with the Respondent's handling of the grievance and the Applicant's complaints that he was victimised as a result. Mr Lindsay confirms that it is his case that, to a greater or lesser extent, all those individuals identified were consciously motivated by racial considerations and he suggests that the factual basis of that assertion is 'sufficiently set out in the particulars already provided'."

As mentioned above, this paragraph records that it was common ground that there had been a protected act or acts. This paragraph further records that the Appellant's case was that the individuals identified were, to a greater or lesser extent, consciously motivated by racial considerations. In our judgment this is a factor, or indication, that the focus of attention at the Employment Tribunal was whether the motivation was based on the fact that the Appellant was black rather than on the fact that he had made a complaint and instituted a formal grievance in respect of the matters referred to above which related to his failure to be promoted, as well as the making of racist remarks and the treatment of another black employee.

18. Paragraph 11 of the Extended Reasons is in the following terms:

"11. This has been an unusual case if only that there have been very few differences of fact between the parties. We have little doubt all the witnesses have given their evidence to the best of their recollection and with commendable frankness. Mr Lindsay has presented as a witness with a very real sense of grievance. We do not believe he has attempted to mislead us in any way. Happily we make the same observation of each of the Respondent's witnesses. Almost all the material facts have been easy to find because of the coincidence of views. The real issues between the parties are straightforward to contemplate. Mr Lindsay says that the Respondent's dealing with his grievance and the events thereafter was remiss and the only explanation we should find is that he has been treated differently and victimised by the Respondent because of a difference in treatment on account of race. The Respondent's case is that it stands by its conduct in every way, that its reaction to the Applicant's complaint was an investigation conducted thoroughly and exhaustively, that it could reasonably have done no more, that it denies any difference in treatment but if it did exist, such difference of treatment was because of the facts of this case and in no way related to a difference in race.

We comment that this analysis does not set out the statutory question posed by s. 2 of the Race Relations Act 1976 either as a composite question, or as a question divided into its constituent parts. We shall return to the statutory question. However at this stage we point out that the statutory question does not raise the question whether "an employer victimised an employee", or whether "a difference in treatment was on account of race or related to a difference in race". The focus of the causative element of the statutory question is on the protected act. Although the identification and definition of the protected acts introduces a connection with the Race Relations legislation (see for example Aziz v Trinity Street Taxis Ltd [1988] ICR 534 at 548 B/C) and thus issues of race, racial grounds and a difference in race or racial group, a question focused on whether the difference in treatment was on account of race, or related to race, is closer to the statutory question posed in a claim for direct racial discrimination under s. 1(1)(a) of the Race Relations Act 1976. As is pointed out in Zafar v Glasgow City Council [1998] IRLR 36, at paragraph 10, s. 1(1)(a) poses the single question "has the complainant been treated less favourably than others on racial grounds" and that it can be convenient for the purposes of analysis to split that question into two parts - (a) less favourable treatment and (b) racial grounds.

19. We accept that in paragraph 11 of the Extended Reasons the Employment Tribunal are covering both of the applications that were before them (and therefore (as we understand it) the allegations of direct racial discrimination pursuant to s. 1(1)(a) raised in the second application) and that it follows that paragraph 11 is a composite and shorthand description of the stance taken by the parties. However, in our judgment, this précis of the submissions therein is an indication of, or a factor in support of, the conclusion that the Employment Tribunal did not focus on the statutory question posed by s. 2 of the Race Relations Act 1976.
20. The Employment Tribunal summarised their view of the law in paragraphs 13 to 18 of the Extended Reasons. The most relevant passages from those paragraphs are as follows:

"13 The law

Section 1 of the Race Relations Act 1976 provides as follows:

(i) 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;

(b) not applicable to the issues before us.

Section 2 of the 1976 Act provides:

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

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

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

or

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

(d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them."

Section 3 provides:

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

Section 4 provides at sub-section (ii):

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

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

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

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

------------------------------------------------

15. So far as allegations of race discrimination and victimisation are concerned, it is now well established that we must make our findings of primary fact on the evidence before us. The burden of proving facts which are alleged by an Applicant lies with that Applicant. He has to prove those facts on the balance of probabilities. As to whether any discriminatory action shown by the primary facts is taken on racial grounds and is therefore unlawful, the Court of Appeal in King v Great Britain China Centre [1991] IRLR 513, 518 gave guidance to Tribunals as to the correct approach. We remind ourselves we must look at all the evidence so that the Applicant must show that it is more probable than not that on racial grounds the Respondent treated him less favourably than it treated or would have treated others. We remember that direct evidence of racial discrimination is rarely available and that evidence will normally be inferences from primary facts. We must ask ourselves on the primary facts found:

(i) Did the Respondent treat the Applicant less favourably than others comparing like with like?

(ii) Was there a difference in race?

(iii) Was the treatment on racial grounds?

We remind ourselves that, if the answer to (i) and (ii) above is yes, then it is common sense to look to the Respondent for an explanation. There is no question of shifting the burden of proof but only the Respondent can explain the reason for his actions. If there is no explanation or the explanation is inadequate or unsatisfactory, the Tribunal should be prepared to infer that the treatment was on racial grounds. However, we take further guidance from the decision of the House of Lords at Zafar v Glasgow City Council [1988] IRLR 36 in which the approach and guidance given by Neill LJ in King v Great Britain China Centre was approved. However, the House of Lords also went on to point out that simply because there may be no adequate explanation it does not follow as a matter of course that we should find discrimination on account of race. We have to look critically at the Respondent's explanation and not supply our own explanation. We note that it is unpalatable to decide that the treatment was on racial grounds in the face of a Respondent's sworn evidence to the contrary. We know that race discrimination does exist and that it is improbable that any Respondent will admit it. We have to resolve conflicts of evidence by decision. It is not necessary to show that the Respondent was ill-intentioned or prejudiced. The question at the end of the day is has the Applicant shown that it was more probable than not that he was the victim of race discrimination.

16. We have also taken into account the decision of May LJ in North West Thames Health Authority v Noone [1988] ICR 813, 822 and of Mummery J (as he then was) in Qureshi v Victoria University of Manchester & Another EAT/484/95.

17 In their extensive and very helpful written submissions we have been taken by Counsel to Nagarajan v London Regional Transport [1998] IRLR 73, R v Birmingham City Council ex parte Equal Opportunities Commission [1989] IRLR 173 CA and Carrington v Felix Lighting Limited [1990] IRLR 6 EAT and Berry v Bethlem Maudsley NHS Trust EAT/478/95 in regard to the Commission for Racial Equality Code of Practice and by Mr Kibling to a small selection of additional authorities as to the law relating to constructive dismissal, all of which are set out within his written submissions and which we have taken into account.

18. So far as the allegations of victimisation are concerned both Counsel recognise the thrust of the Nagarajan authority is such as the headnote indicates:

'In order for there to be unlawful victimisation a protected act must constitute the reason for the less favourable treatment. That requires conscious motivation. It is not sufficient if the influence is subconscious. Nor is it sufficient that the discriminator was consciously aware of the protected acts done by the victimised person and was influenced by those acts in treating him less favourably. The mere fact that a person has knowledge of the protected acts cannot in itself justify an inference at he was thereby consciously motivated to treat the complaint less favourably.'

Accordingly, and arising therefrom, both Counsel also accept that the inferences which we are entitled to draw in making any finding of direct or indirect race discrimination do not apply, so far as victimisation is alleged, where we must look for the 'conscious motivation' to which the Nagarajan decision refers."

We would add references to ss. 3(3) and (4) which are in the following terms:

"3(3) In this Act -

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

(b) references to racial discrimination refer to any discrimination falling within section 1,

and related expressions shall be construed accordingly.

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

The first subsection defines "discrimination" and "racial discrimination". Section 3(4) relates expressly only to s. 1(1), and the reference to "racial group" in subsection 1(1)(b). It does not expressly refer to "racial grounds".

21. Further, as a matter of construction of s. 2, in our judgment the reference therein to "those circumstances" is a reference to "any circumstances relevant for the purposes of any provision of this Act" and thus, for present purposes, to s. 4 and, in particular, to subsections 4(2)(b) and (c).
22. The introduction to paragraph 15 of the Extended Reasons which asserts that it relates to allegations of race discrimination and victimisation is in some conflict with:

(a) the remainder of paragraph 15, and

(b) the final part of paragraph 18.

In our judgment this is another factor in favour of the conclusion that, or an indication that, the Employment Tribunal in dealing with the first application did not focus on the statutory question posed by s. 2 of the Race Relations Act 1976.

23. As we have mentioned the law referred to in paragraph 18 of the Extended Reasons (and, in particular, the final part of that paragraph) has now been overtaken by the decision of the House of Lords in the Nagarajan case. In our judgment, although we agree that prior to the decision of the House of Lords in the Nagarajan case an applicant had to establish "conscious motivation" and therefore that was what an Employment Tribunal had to consider, or look for, the King case and the Zafar case as to the drawing of inferences were not irrelevant to claims for discrimination by way of victimisation. This was because in our judgment a finding of conscious motivation could be inferred (a) in the absence of any evidence of the actual conscious motivation of the employer (which arose in this case in respect of the actions taken by Wendy Blanks), or (b) if evidence given by and on behalf of an employer as to the conscious motivation of the relevant individuals was not accepted.
24. Further, we comment that in our judgment in their exposition of the law the Employment Tribunal do not set out the composite test set by s. 2 of the Race Relations Act 1976 for a claim of discrimination by way of victimisation (or the constituent parts of that test) save by their reference to s. 2 and their citation of the headnote of the report of the Nagarajan case in the Court of Appeal. This is in contrast to their exposition of the law relating to a claim for direct racial discrimination.
25. Paragraphs 19 and 20 of the Extended Reasons set out the findings of fact made by the Employment Tribunal. The most relevant, for present purposes, are set out below:

"19 Our findings of fact

We are conscious that any short finding of fact may never reflect clearly the depth of the detailed evidence we have had placed before us so fully and skilfully by both Mr Kibling and Mr Nicholls. In making our findings of fact we have given very great attention and taken very great care to consider all the evidence before us and the documentary evidence as well.

20 The material facts we found were as follows

(c) When Mr Lindsay started his work Roger Gaywood was the branch manager. Very shortly thereafter in September 1994 Wendy Blanks began working for the Respondent as senior customer advisor.

(e) During 1994 and 1995 certain racist remarks had been made which offended Mr Lindsay, although not put directly to him. These had been made by Roger Gaywood and Valerie Steer but the Applicant did not complain of them at the time and subsequently the Respondent came to recognise what had been said and cautioned staff accordingly. We are not required to make findings prior to the presentation of the Applicant's grievance on 5 September 1996. Nevertheless, we record that we accept the Respondent's explanation that disciplinary action concerning the earlier remarks had been thought inappropriate because of the time which had passed before those remarks came to be complained of by Mr Lindsay. Also we note that after his employment began Mr Lindsay made unsuccessful promotion applications in December 1994, August 1995, November 1995, January 1996 and July 1996 at which time he applied for promotion to branch manager of the Harrow branch. There was a further application made during 1995 but which did not result in the Applicant achieving an interview because, said the Respondent, he had badly failed in one particular aptitude test as part of that selection process.

(f) On 5 September 1996 Mr Lindsay filed a formal grievance. He complained of a 'very uncomfortable environment to work in', that he believed the Respondent was not complying with its own Equal Opportunities Policy Statement and that his career was suffering. In his evidence he came to tell us of his deep frustration at the lack of promotion. He felt he ought to have progressed more rapidly because of his background and achievement at Barclays Bank.

(g) On 11 September 1996 Mr Lindsay met with Vicky Wilkinson and Les Nicholson. He explained his grievance and that he felt there were 'racist issues'. He challenged some of his performance appraisals and referred to the earlier racist comments. Mr Nicholson agreed to conduct a further investigation. Vicky Wilkinson agreed to reply formally to his grievance letter and to prepare a career development plan. Mr Lindsay was encouraged to pursue an appeal against his performance rating but he did not come to do so.

(h) On 16 September Vicky Wilkinson wrote a confirmatory letter to the Applicant. She informally interviewed the Gracechurch branch staff and warned them that racist comments would not be tolerated.

(i) Between 19 September 1996 and 8 October Mr Nicholson conducted certain investigations with branch staff, all of whom denied racist comments had been made, save Reba Ward who confirmed that certain racist comments had been made but with no intention to insult or offend Mr Lindsay.

(k) On 15 November 1996 Sonya Clegg wrote a file note concerning the Applicant referring to his removal of the safe keys and their retention when he was sick the next day, certain comments concerning headaches which she recorded the Applicant said derived from stress he was feeling as a result of his race discrimination claim, and his absences at the branch for medical appointments made during the 'lunchtime' period. Whereas that notice to some extent is ambiguous, we accept her evidence that it was not intended to refer to absence for two complete days, intending to refer to the lunch period only. Mr Lindsay noticed that file note on 16 November on Sonya Clegg's desk. She had taken over as acting branch manager from Vicky Wilkinson during Mrs Wilkinson's sick absence. We prefer the evidence of Sonya Clegg that she left the note concealed and it was not placed in an obvious position in the centre of her desk as Mr Lindsay asserted. He was very upset by the content of the note which he said had never been checked with him and was inaccurate in any event.

(l) On 22 November 1996 Stephen Phillips and Les Nicholson heard the Applicant's second stage grievance at the Hove branch of the Respondent. Mr Phillips agreed to investigate the file note and at a meeting held at Gracechurch Street on 28 November an amended or corrected minute was prepared concerning it and with which the Applicant was satisfied. Between 8 October and 19 November four separate file notes had been prepared concerning the Applicant containing a total of eight separate entries. Five were made by Wendy Blanks, the notes not having been brought to the Applicant's attention. The 15 November note had alerted the Applicant to what he believed was a campaign of victimisation against him because of his grievance.

(m) By an undated note but written after 28 November, Mr Lindsay commented upon the 15 November file note indicating that he thought it was 'by misinterpretation, bad presumption, incorrect evidence or a lack of communication' which had caused its inaccuracy.

(o) By letter dated 12 December Mr Lindsay confirmed he would like to invoke the third stage grievance procedure and he said that he was exercising his rights in seeking advice from other advisory bodies.

(p) On 2 January 1997 Wendy Blanks wrote a further file note critical of Mr Lindsay both as to his time of arrival and his performance. That note related to 23 and 24 December 1996. Wendy Blanks was not then in the office and the note did not convey who had passed the information to her and which lead her to write it. Certain entries were made by Wendy Blanks on the attendance record sheet for 1996 indicating the times of the Applicant's alleged late arrival over an extended period but particularly during October that year. The Applicant denied those entries were correct.

(r) On 16 January Mr Lindsay became sick and never returned to his work with the Respondent."

We comment as to those findings as follows:

(a) They show that by 8 October 1996 Mr Nicholson had conducted investigations with branch staff. We were told at the hearing before us (and it was common ground before us) that on 8 October 1996 Mr Nicholson had interviewed Wendy Blanks and had put to her the allegations made by the Appellant that she had made racist comments and that she denied that she had. We were also told (and it was common ground before us) that the evidence before the Employment Tribunal was that Mr Nicholson saw Reba Ward on 8 October 1996 after he had seen Wendy Blanks and that the statement of Reba Ward referred to in paragraph 20(i) supported the allegation made by the Appellant against Wendy Blanks.

(b) As appears from paragraph 20(l) between 8 October and 19 November 1996 four separate file notes had been prepared concerning the Applicant which contained a total of some eight separate entries. Five of those were made by Wendy Blanks and the notes had not been brought to the Appellant's attention. The note dated 15 November had been made by Sonya Clegg (see paragraph 20(k)). That means that the author of six of the entries in the notes are identified but so far as we have been able to ascertain two of the authors are not identified.

(c) Later, on 2 January 1997 Wendy Blanks wrote a further file note that was critical of the Applicant both as to his time of arrival and his performance

(d) We were told (and it was common ground before us) that the Respondent employer had obtained a witness statement from Wendy Blanks, and a witness order against her, but in the event did not call Wendy Blanks and her witness statement was not put in evidence.

(e) It follows that there was no evidence from Wendy Blanks as to her reason for, and thus her subjective conscious motivation for, writing the relevant parts of the file notes.

(f) There is no finding (save possibly in paragraph 23 of the Extended Reasons) as to the evidence given by any of the authors of the file notes (including Sonia Clegg who we were told (and it was common ground before us) gave evidence) of their reason for, and thus their conscious motivation for, writing the relevant parts of the file notes.

(g) We were told (and it was common ground before us) that in the first two years of the Appellant's employment he had had one file note made concerning him following a discussion with management relating to the operation of his personal Visa card account and this file note was dated 21 February 1996. Additionally we were told (and it was common ground before us) that the performance appraisal referred to in paragraph 20(g) was part of an open procedure of appraisal.

(h) There were no discussions with the Appellant prior to the making of the file notes.

26. Paragraphs 21 to 26 of the Extended Reasons set out the conclusions of the Employment Tribunal in respect of the first application and thus the claim for discrimination by way of victimisation that was being made by the Appellant. These paragraphs are in the following terms:

"21 Our conclusions

By his very full submissions Mr Kibling reminds us of the Respondent's witnesses lack of awareness of the Company Equal Opportunity Policy and that this offends the code of practice prepared by the Commission for Racial Equality. He reminds us of the lack of knowledge exhibited in that regard by each of the Respondent's witnesses and of the apparent absence of any procedure for monitoring the promotion and/or recruitment from ethnic minority groups. We agree with him. We consider that at the material times the Respondent (both individually and collectively) fell far below the standard expected of it. Nevertheless, we must also recognise that those deficiencies have to a large degree been accepted and recognised by the Respondent's senior witnesses and Mr Nicholson and Mr Dearsley in particular. Perhaps that is a criticism (we are told matters have now been put right) of the Respondent's failure to provide proper training and procedures for its staff rather than a contempt of the need for Equal Opportunity awareness. It is of course entirely proper for Mr Kibling, as he does, to ask us to take these matters into consideration when we examine the race discrimination allegations brought by Mr Lindsay. Nevertheless, we must be very careful not to fall into the trap of assumption that because at the time of Mr Lindsay's complaints the Respondent's procedures may be remiss, it does not follow there was any individual or collective atmosphere of disregard for racial or Equal Opportunity awareness. We do not find there was, either on a collective or an individual basis.

22 The Applicant says that the Respondent's failure to deal with his grievance as he felt proper and the series of file notes in particular, some unfavourable, should lead us to only one view, namely that the Respondent was guilty of his victimisation. He says that we cannot properly conclude otherwise in the face of his repeated failure to gain promotion. He says there is no other likely explanation.

23 We have carefully considered the evidence of the Respondent's witnesses. In each case we are entirely satisfied that the Applicant's grievance was taken seriously and responsibly at every stage. That is not to say the Respondent is beyond criticism or that with hindsight it might have acted differently. Nevertheless, save one single exception, we find no difficulty in accepting the Respondent's explanation at every stage of the grievance investigation and that from the outset there was a genuine attempt to correct any wrong which had been done, investigate fully, discipline staff if felt appropriate and rehabilitate Mr Lindsay within the organisation. We recognise the Applicant's apprehension at the file notes which came to his attention. Yet we accept the evidence of the Respondent's witnesses, namely that file notes always ought to be made to record significant events and it seems to us to be only common sense for the Applicant's senior staff to be particularly vigilant in regard thereto in the knowledge that a formal complaint had already been made by Mr Lindsay. We see nothing within those file notes to lead us to a conclusion of victimisation in the absence of any other explanation.

24 It seems to us the nub of the Applicant's complaint turns on his failure to achieve promotion. We took trouble to question each of the Respondent's senior witnesses as to their own career progress. Without exception, each of those senior employees themselves took considerably longer than the career progression anticipated by Mr Lindsay. Sadly it seems to us that Mr Lindsay may have harboured an over-inflated view of his own ability and the significance of his work as a cashier at Barclays Bank. That is not to say we see any evidence he may not have achieved the promotion he desired in due time but it seems to this Tribunal to be entirely unrealistic for Mr Lindsay to have expected to achieve the level of branch manager within the short duration of his work with the Respondent. Each of the Respondent's witnesses has confirmed likewise.

25 We are disappointed not to have had the benefit of any other staff files for comparison for we are told, by a number of the Respondent's witnesses, that the maintenance of file notes concerning staff was an important part of the Respondent's manager's task and particularly so whenever the sickness absence procedure came to be implemented. We have accepted the Respondent's evidence that the sickness procedure became appropriate in the case of Mr Lindsay. As we have said we have examined the various file notes upon which Mr Lindsay relies in support of his victimisation claim but we are not persuaded, on the balance of probabilities, there is evidence which must only lead us to the view those file notes record a campaign of victimisation against the Applicant. The single exception to which we refer relates to the time keeping entries inserted, apparently with great precision and care, by Wendy Blanks upon Mr Lindsay's record and in particular during October 1996, shortly after the grievance was received. We were told, although we saw no evidence, that other staff had their lateness similarly recorded. We appreciate that Sonya Clegg was unable to speak with any real authority in the absence of Wendy Blanks but we do not regard her explanation as plausible, namely that the absence of entries on other staff records was because none of the other staff were late. Whilst it is not for us to offer our own explanation, we are not persuaded [following Zafar] that only because there is no obvious explanation before us, there must follow a finding of discriminatory conduct. There may be other obvious explanations. It is not for us to conjecture.

26 We have carefully examined all the evidence before us, applying such common sense as we are able, but all of which leads us to the view that notwithstanding certain deficiencies, the Respondent did its very best at all levels and at all times to deal properly with the Applicant's grievance. In particular, we consider that, although perhaps his style appeared to Mr Lindsay as somewhat abrupt, Mr Dearsley did his very best to rehabilitate Mr Lindsay within his organisation during the stage three grievance hearing. We have been wholly unable to find any evidence which could properly lead us to the view that the Respondent consciously victimised Mr Lindsay because of his implementation of a grievance or indeed otherwise. As we are constantly reminded by the Employment Appeal Tribunal and otherwise, it is important that we should undertake our task in a common sense way, taking all the evidence before us in the round. The lay members of this Tribunal have asked that it be recorded in particular that in their industrial experience they perceive little within the Respondent's investigation of the Applicant's grievance or indeed the implementation of that grievance procedure itself which is capable of real criticism. We reject completely the submission made by Mr Kibling on behalf of the Applicant that 'the attitude of those hearing the grievance was that there was no substance to the allegation'."

27. We comment that Counsel for the Respondent employer submitted to us that in paragraphs 23 to 25 the Employment Tribunal were asking themselves the composite question posed by the Zafar case, namely had the Appellant been treated less favourably than others on racial grounds? We can understand why Counsel made that submission to us, having regard to both:

(a) the wording of the paragraphs (particularly the reference therein to the Zafar case), and

(b) his submission that if we were to allow the Appellant to amend to argue that the Employment Tribunal had erred in not taking the approach to a claim for victimisation by way of discrimination set out by the House of Lords in the Nagarajan case that the Employment Tribunal had in fact (in the alternative) taken this course and rejected the claim.

28. However difficulties in this submission are that (i) it runs counter to the final part of paragraph 18 of the Extended Reasons, and (ii) the question posed by s. 1(1)(a) of the Race Relations Act 1976 (and identified by the Zafar case) is not the statutory question posed by s. 2 of the Race Relations Act 1976. This is so even when (i) the introduction of racial grounds by reference to the identification and definition of the protected acts, and (ii) the common approach to both sections 1 and 2 set out and identified by the House of Lords in the Nagarajan case, are taken into account. The reason for this is that the statutory question posed by s. 2 refers expressly to a protected act or acts and therefore requires a consideration of those acts.

The approach of this Tribunal to Extended Reasons and the question whether, having regard to them an Employment Tribunal has erred in law.

29. In this context Counsel for the Respondent employer referred us to:

(a) Hollister v National Farmers' Union [1979] ICR 542 at 552H to 553D, which is the following terms:

"There is only one other matter to which I would refer. In these cases Parliament has expressly left the determination of all questions of fact to the industrial tribunals themselves. An appeal to the appeal tribunal lies only on a point of law: and from that tribunal to this court only on a point of law. It is not right that points of fact should be dressed up as points of law so as to encourage appeals. It is not right to go through the reasoning of these tribunals with a toothcomb to see if some error can be found here or there – to see if one can find some little cryptic sentence. I would only repeat what Lord Russell of Killowen said in Retarded Children's Aid Society Ltd v Day [1978] ICR 437, 444:

'I think care must be taken to avoid concluding that an experienced industrial tribunal by not expressly mentioning some point or breach has overlooked it, and care must also be taken to avoid, in a case where the Employment Appeal Tribunal members would on the basis of the merits and the oral evidence have taken a different view from that of the industrial tribunal, searching around with a fine toothcomb for some point of law.'

It does seem to me that in this particular case, if one does not use a toothcomb, if one looks at the findings of this tribunal broadly in accordance with what they have said, it is found that there was a substantial reason for this dismissal. Not only was there a substantial reason, but in the circumstances of the case the employers acted reasonably in treating it as a substantial reason having regard to equity and the substantial merits of the case. Therefore the dismissal was fair.

I would reverse the appeal tribunal and restore the decision of the industrial tribunal."

This citation therefore adopts the citation from the judgment of Lord Russell in the Day case, and

(b) Jones v Mid Glamorgan County Council [1997] ICR 815 at 826D where Lord Justice Waite says this:

"The guiding principle, when it comes to construing the reasons of an industrial tribunal at an appellate level, must be that, if the tribunal has directed itself correctly in law and reached a conclusion which is open to it on the evidence, the use in other passages of its reasons of language inappropriate to the direction it has properly given itself should not be allowed to vitiate the conclusion unless the relevant words admit of no explanation save error of law."

We comment that in our judgment that citation has to be read with the passage that follows it which is in the following terms:

"In the present case the industrial tribunal had correctly directed itself in law by citing the limitations of issue estoppel. It had demonstrated an awareness of the issues raised in the pension dispute on the one hand and the unfair dismissal claim on the other, and had noted the differences between them. It had reached a conclusion expressed to be a finding of its own, and had done so after independent consideration of the relevant correspondence between the parties and after hearing the oral evidence of the applicant and argument on both sides. Is there any explanation, save error of law, for its emphasis upon, and subservient references to, the findings of the county court? In my view there is. It lies in the fact that the industrial tribunal was dealing, unusually in its jurisdiction, with a submission of no case to answer. The general guidance in the authorities cautions, as the tribunal itself observed, against adopting such a procedure in the tribunals. It would be natural therefore for the industrial tribunal, before deciding whether in its discretion to entertain a submission of no case, to see if there were any exceptional circumstances justifying a departure from the normally accepted practice. The fact that another court, in another jurisdiction, and for analogous but different purposes, had reviewed the same evidence and reached a conclusion which coincided with its own independent impression could properly be regarded as providing such circumstances.

When the decision is read as a whole with that consideration in mind, the misuse of language involved in applying the term 'binding' to the antecedent findings of the county court can reasonably be explained, in my judgment, as an attempt on the tribunal's part to indicate that it was looking to those findings, not for guidance as to what its own decision should be, but rather as providing justification for acting summarily on its own independently formed conclusion through acceptance of a submission of no case to answer. It is preferable, in my view, and more in tune with the traditional approach to the construction of a tribunal's decision, that its reasoning should be construed benevolently in that way. The alternative interpretation would involve imputing to the industrial tribunal what would amount, given the correct direction it had stated for itself in law, to a major error, namely, a misplaced application of the principle of res judicata. This is, in short, a case of sound reasoning poorly expressed. The decision of the industrial tribunal should on that basis be upheld. I would accordingly allow the appeal and restore the order of the industrial tribunal."

We comment further that that passage shows that Waite LJ placed considerable reliance on the fact that the Extended Reasons demonstrated that the Industrial Tribunal had correctly directed itself in law by citing the limitations of issue estoppel.

30. We accept that these authorities demonstrate that in considering the Extended Reasons we should read them as a whole, not use a toothcomb, not isolate particular phrases or passages, and should read them benevolently and thus not as a statute. Further, our starting point should be that unless the Extended Reasons show the contrary an Appeal Tribunal should conclude that an Employment Tribunal did not err in law in the sense that it incorrectly applied the relevant law by, for example, asking itself the wrong question.
31. Counsel for the Respondent employer also referred us to Martin v MBS Fastenings (Glynwed) Distribution Ltd [1983] IRLR 198 and in particular to paragraph 19 of the judgment therein which is in the following terms:

"Finally it was submitted that the Industrial Tribunal was under a duty to state the law, its primary findings of fact, its secondary findings of fact and its conclusions. This is wholly misconceived. The duty of an Industrial Tribunal is to give reasons for its decision. This involves making findings of fact and answering a question or questions of law. So far as the findings of fact are concerned, it is helpful to the parties to give some explanation for them, but is not obligatory. So far as the questions of law are concerned, the reasons should show expressly or by implication what were the questions to which the Tribunal addressed its mind and why it reached the conclusions which it did, but the way in which it does so is entirely a matter for the Tribunal."

Counsel submitted that judged by that standard the Extended Reasons in this case are satisfactory.

32. By way of response Counsel for the Appellant referred us to Hampson v Department of Education and Science [1989] ICR 179 and in particular to the first paragraph in the headnote at page 180 which is in the following terms:

"When considering whether the imposition of a condition was ';justifiable' within the meaning of section 1(1)(b)(ii) of the Race Relations Act 1976 industrial tribunals, applying an objective test, had to balance the discriminatory effect of the condition against the reasonable needs of the person who applied the condition; that only if the discriminatory effect could be objectively justified by those needs would the condition be 'justifiable'; that in reaching their decision on that issue, the tribunal had to give full reasons sufficient to explain to the parties why they had either lost or won; that as the tribunal had failed to identify the standards by which they are testing the Secretary of State's justification of the condition or to make any findings comparing the applicant's courses with the domestic one, their reasons were deficient; and that, accordingly, their decision on the conditions applied by the Secretary of State could not be upheld."

and to the judgment of Balcombe LJ at pages 192 G to 193 D which is in the following terms:

"The finding of justifiability

Procedure in the industrial tribunal is governed by the Industrial Tribunals (Rules of Procedure) Regulations 1985 (S.I.1985 No.16) which came into force on March 1985. The rules of procedure are set out in Schedule 1 to the Regulations and rule 9 is concerned with the decision of the tribunal. Rule 9(3) provides that the tribunal shall give reasons, which may be in full or in summary form, for its decision. Rule 9(5)(a) provides that where the proceedings before the tribunal involved the determination of an issue arising under, inter alia, the Race Relations Act 1976, the reasons shall be recorded in full in a document signed by the chairman. Rule 17(9) requires that, in proceedings under the Race Relations Act, a copy of the decision shall be sent to the Commission for Racial Equality. This is because the decision in such proceedings may well have an effect not limited to the parties alone. Thus there are sound policy reasons for the requirement that in such cases the decision shall record the reasons in full.

In its differentiation between full and summary reasons the 1985 Rules of Procedure amended the previous Industrial Tribunals (Rules of Procedure) Regulations 1980 (S.I.1980 No.884) which only required that the decision of a tribunal should be recorded in a document which should contain the reasons for the decision. There is no reported decision on the meaning of 'full reasons' under rule 9 of the Rules of 1985, but I derive considerable assistance from the decision of this court in Meek v City of Birmingham District Council [1987] IRLR 250, and in particular from the following passage, at p.251, from the leading judgment of Bingham LJ with which Sir John Donaldson MR and Ralph Gibson LJ agreed, in relation to the rule in its original form:

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

In that passage Balcombe LJ refers to the well known case of Meek v City of Birmingham District Council [1987] IRLR 250 and cites from it.

33. In our judgment (should authority be needed for it) the Hampson case establishes that the cases relied on by Counsel for the Respondent employer have to be read with the Meek decision. It follows that on a benevolent approach to Extended Reasons (and thus one which does not use a toothcomb) this Tribunal has to be satisfied that the Extended Reasons contain a sufficient account of the facts and of the reasoning to enable it to see whether any question of law arises.
34. In High Table v Horst [1998] ICR 409 at page 420 E to F, after citing from the Meek case, Peter Gibson LJ says this:

"However, in considering whether the reasons given by an industrial tribunal comply with its statutory obligation, it is very important to keep in mind the issues which the industrial tribunal was dealing with. It has, of course, to reach conclusions on the issues which the statute raises, viz. in the present case, have the employers established that the reason for the dismissals was redundancy and, if so, did they act reasonably in treating the redundancy as a sufficient reason for dismissing the employees? But, whilst it must consider all that is relevant, it need only deal with the points which were seen to be in controversy relating to those issues, and then only with the principal important controversial points … ."

Therefore in our consideration of the Extended Reasons, and the question whether they comply with the statutory obligation imposed on the Employment Tribunal, it is important for us to keep in mind the issues which the Employment Tribunal was dealing with and whether they posed and answered the relevant statutory question.

35. The importance of posing and answering the relevant statutory question is demonstrated by the decision of the Court of Appeal in Marks & Spencer Plc v Martins [1998] ICR 1005, in particular at 1019A to D where Mummery LJ says:

"The industrial tribunal made a fundamental error of law in asking itself and in answering the wrong question, a different question from that required by the Act of 1976. In Glasgow City Council v Zafar [1998] ICR 120, 123, Lord Browne-Wilkinson, with whose speech the other four members of the appellate committee concurred, said:

'Although, at the end of the day, section 1(1) of the Act of 1976 requires an answer to be given to a single question (viz. has the complainant been treated less favourably than others on racial grounds?) … it is convenient for the purposes of analysis to split that question into two parts – (a) less favourable treatment and (b) racial grounds …'

The first part of the question is: was the applicant treated by Marks & Spencer Plc less favourably than they treated or would treat another person of a different racial group in the same or relevantly similar circumstances? The answer to this question requires a comparison to be made between the treatment of the applicant and the treatment of a 27-year-old applicant of a different racial group with similar experience and qualifications applying for the same job. The tribunal did not attempt to make the compulsory comparison. Instead, it simply asked itself whether there was 'bias' on the part of Mrs Cherrie and Mr Walters against the applicant and concluded that there was. This approach is defective."

36. It follows that we have to consider on a benevolent approach to the Extended Reasons whether

(i) the Employment Tribunal asked themselves the wrong question, and further or alternatively

(ii) whether the Extended Reasons make it sufficiently clear that the Employment Tribunal posed themselves, and answered, the correct statutory question and in doing so give a sufficient account of their findings of fact and reasoning to enable us to identify why the Respondent employer won and the Appellant lost.

37. Further in respect of our approach to the Extended Reasons we were referred by Counsel for the Respondent employer to the speech of Lord Steyn in the Nagarajan case at [1999] ICR 896H to 897B where he says:

"Such an assessment cannot be beyond the powers of the tribunal. No doubt it will be a matter of degree whether the tribunal can give effect to its own view of the aptitude and skills of a particular individual. But in the present case the tribunal considered that Ms Scruton's assessment was 'plainly ridiculous'. Secondly I would hold that on the detailed oral evidence before it the tribunal was entitled to infer that Ms Scruton formed the view that the applicant was anti-management solely on the basis of her prior knowledge of his complaints against L.R.T. The drawing of such inferences is a paradigm of the fact-finding functions of the tribunal. In these circumstances it is impossible to say that the decision of the tribunal was perverse or irrational.

Conclusion

In the result I would hold that the Court of Appeal erred on all three points. I would allow the appeal and restore the decision of the industrial tribunal."

38. We accept that the drawing of inferences is part of the fact finding task of an Employment Tribunal as is the making of a finding as to whether the "conscious motivation" for identified less favourable treatment is the existence of a protected act.
39. Further (and although this was not part of the submission made to us) it follows and we accept that the answer to the overall question posed by s. 2 of the Race Relations Act 1976 should be categorised as an issue of fact as should the answer to the questions contained therein namely (i) whether there has been less favourable treatment, and (ii) was the reason for it the doing of a protected act. However in our judgment such conclusions go to the judgmental issues at the heart of a complaint of discrimination by way of victimisation and it is wrong to treat them as ones of primary fact (see, for example, Nottingham City Council v Amin Times 2 December 1999).
40. It follows that our task is to decide whether the Employment Tribunal misdirected itself in law or reached a decision which was unreasonable to the point of perversity (see, for example, Nethermere (St Neots) Ltd v Gardiner [1984] ICR 612 at 621G to 622A and Clark v TDG Ltd t/a Novacold [1999] IRLR 318 at paragraph 28 of the judgment of Mummery LJ).
41. Thus we have to consider whether the Employment Tribunal posed and answered the statutory question posed by s. 2 Race Relations Act, and thus, for example, we have to consider:

(a) whether the Employment Tribunal decided that there was less favourable treatment, and

(b) what the approach and conclusion of the Employment Tribunal was on the issue of causation.

The Statutory Question

42. Prior to the decision in the Nagarajan case in the House of Lords the single question was: "Has a person consciously treated the complainant less favourably than others because (or by reason of the fact that) the complainant has done a protected act?".
43. After the decision of the House of Lords in the Nagarajan case the single statutory question can be posed in terms that are closer to that set out by Lord Browne-Wilkinson in the Zafar case in relation to a claim for direct racial discrimination under s. 1(1)(a) of the Race Relations Act, namely: "Has the complainant been less favourably treated than others because he has done a protected act?".
44. In respect of both such single questions it is convenient (and in our judgment generally either essential or important for the purposes of analysis and a proper explanation of the reasons why a claim for discrimination by way of victimisation has succeeded or failed) to split the question into its constituent parts, namely:

(a) less favourable treatment (in the circumstances relevant for the purposes of the Act), and

(b) protected act (and thus the reason for the less favourable treatment, or causation).

45. The first part of the question (less favourable treatment) necessarily involves the making of a comparison and thus the identification of an actual or hypothetical comparator.
46. The second part of the question introduces complications of analysis and application that do not arise in respect of a claim for direct racial discrimination under s. 1(1)(a), and which are not dealt with in the Nagarajan case in the House of Lords. Those complications arise from the facts that the identification and definition of the protected acts:

(A) introduce two elements because the acts have to relate to the Race Relations Act and similar acts could relate to other matters (e.g. the person could give evidence in a different type of case), and

(B) introduce a number of different acts.

Point (A) gives rise to problems similar to those addressed in respect of s. 5(1)(a) and (b) of the Disability Discrimination Act 1995 in Clark v TDG Ltd t/a Novacold [1999] IRLR 318 and O'Neill v Symm & Co [1998] IRLR 232.

47. We pause to comment that in our judgment the Clark case and the "but for" approach taken in respect of the Disability Discrimination Act 1995 in British Sugar plc v Kirker [1998] IRLR 624 (see the headnote and paragraph 30) cannot stand as authority under the Disability Discrimination Act in the light of the decision in the Clark case and in particular the approach taken by Mummery LJ at paragraphs 52 to 72 of his judgment. This approach by Mummery LJ departs from the approach taken by this Tribunal in the O'Neill case where this Tribunal, in accordance with an argument presented to them:

(a) treated the phrase "a reason which relates to the disabled person's disability" as a single phrase (see paragraph 34 of the judgment), and therefore

(b) found that the cause of the less favourable treatment had to relate to, or be because of, the existence a disability known to the employer.

The reasoning of Mummery LJ also means that a "but for the disability" approach is not appropriate under s. 5(1)(a) of the Disability Discrimination Act.

48. However in the Clark case Mummery LJ points out that the approach and scheme of the Disability Discrimination Act is different to those of the Race Relations Act and the Sex Discrimination Act. One of the differences is the introduction by the Disability Discrimination Act of the issue whether the treatment can be justified which does not exist in the Race Relations Act or the Sex Discrimination Act (save in respect of indirect discrimination). In our judgment one of the consequences of this is that the approach taken in the O'Neill and Kirker cases by this Tribunal to the phrase "a reason which relates to the disabled person's disability" still provide assistance in respect of the approach that should be adopted to cases of discrimination by way of victimisation under the Race Relations Act which involve consideration of the phrase posing the question whether the less favourable treatment was "by reason that the person victimised has done a protected act" and thus an act which relates to the Race Relations Act. For example the conclusion in the O'Neill case as to the need for knowledge of the disability is reflected in the speech of Lord Steyn in the Nagarajan case (see [1999] ICR at, for example, 895E) where he makes it clear that the Defendant must know of the protected act.
49. Point (B) in paragraph 55 could give rise to differences of analysis or approach in respect of different types act. For example, it might have been said that Parliament intended that an employer would be liable for discrimination by way of victimisation if it treated an employee less favourably and unreasonably because he had given evidence in a case under the Act even though it could be established that the employer had treated or would treat an employee who gave evidence in a different type of case in the same unfavourable and unreasonable way.
50. This example links points (A) and (B) in paragraph 55 and raises the question whether in a claim for discrimination by way of victimisation under the Race Relations Act it is necessary when considering, and applying, the statutory question in respect of each of the protected acts to take into account the fact that an element of their identification and definition is that they are connected to the Race Relations Act and thus to race, racial grounds and a difference in race or racial group (the "Race Connection"). In our judgment:

(a) the approach and reasoning of the majority of the House of Lords in the Nagarajan case which is to the effect that the approach under s. 1(1)(a) and s. 2 should be the same, or generally the same, in respect of causation, so that if "racial grounds" or "protected acts" had a significant influence on the outcome discrimination is made out (see Lord Nicholls in Nagarajan at [1999] ICR 886F),

(b) the established approach under s. 1(1)(a) that the focus is not on whether the conduct of the employer (or putative employer) was unfair, unreasonable or biased but on whether the employee was less favourably treated for the purposes of the Act (see Marks & Spencer Plc v Martins [1998] ICR 1005 at 1019 A/G, where Mummery LJ refers to and places reliance upon the Zafar case, and

(c) the absence of any defence of justification to direct discrimination under s.1(1)(a) and to discrimination by way of victimisation under s.2 of the Race Relations Act,

establish that the answer to this question is "yes" and therefore in all cases of discrimination by way of victimisation the Race Connection has to be taken into account when considering, and applying, the statutory question.

51. In our judgment, as a matter of analysis this could be taken into account in respect of both parts of the composite parts of the statutory question and thus (a) in the consideration of less favourable treatment, and (b) in the consideration of causation and thus of the protected acts.
52. In our judgment it should be remembered that Lord Browne-Wilkinson in the Zafar case split the statutory question into two parts for the purpose of analysis on the basis that this was convenient. He was therefore not re-writing or defining the statutory question or setting down a rigid approach to its application in all cases. It follows that the overall statutory question can be answered, and an explanation given for a decision on a complaint of discrimination by way of victimisation, by reference to each, or both, of the subsidiary questions.
53. Logically by way of analysis a consideration of whether there has been less favourable treatment comes first. As we have already mentioned in our judgment this involves the making of a comparison. This flows from the nature of "less favourable treatment" and is confirmed for example in Marks & Spencer Plc v Martins [1998] ICR 1005 at 1019 C/D where Mummery LJ in connection with a claim for direct racial discrimination under s. 1(1)(a) refers to the comparison as being compulsory and identifies the comparison to be made as one between the treatment of the applicant and the treatment a 27 year old applicant of a different racial group with similar experience and qualifications applying for the same job. He therefore incorporates or applies the approach under s. 3(4) Race Relations Act 1976.
54. In considering whether the applicant has suffered less favourable treatment he takes an approach under which the circumstances of the comparator (actual or hypothetical) are the same as, or not materially different to, those of the complainant and thus an approach which compares "like with like" on an actual or hypothetical basis.
55. The choice of comparator (actual or hypothetical) gives rise to a value judgment and potentially to problems and, in our judgment, in identifying the correct comparator (actual or hypothetical) it is necessary to consider the relevant provisions of s. 4 of the Race Relations Act 1976 and thus, in terms of s. 2, the circumstances that are relevant for the purposes of the Act.
56. The closer the circumstances of the comparison (with the exception of the existence of the protected act, as defined) the more likely it is that a consideration of whether there has been less favourable treatment will answer the whole statutory question. In contrast the greater the difference in those circumstances the more likely it is that to answer the whole statutory question causation will have to be considered separately.
57. The need for this value judgment as to the choice of comparator also gives rise to a need for Employment Tribunals to explain the judgment they have made and thus the comparator or comparators they have chosen and the reasons for that choice having regard to s. 4 and all the relevant circumstances of the case.
58. In our judgment the identification of an actual or hypothetical comparator gives rise to a problem in this case (and probably to similar problems in other cases relating to a claim for discrimination by way of victimisation) as to whether the comparison should be (i) with a person who has not made applications for promotion which have been turned down, who has not made a complaint and who has not instituted a grievance, or (ii) with someone who has made similar applications for promotion and who has made a complaint and instituted a grievance but on grounds that are unconnected with the Race Relations Act 1976.
59. Here the circumstances that are relevant for the purposes of the Act (see ss. 4 and 2) were the way in which the Respondent employer allowed the Appellant access to promotion and further or alternatively subjected him to any other detriment.
60. Having regard to those circumstances, in our judgment

(a) a correct comparison could be with, and

(b) the correct comparator probably should be with,

someone who had sought promotion in a similar way to the Appellant but had been refused it (see, for example, paragraph 24 of the Extended Reasons) and who also had complained and instituted a grievance on grounds unconnected with the Race Relations legislation (and we would add unconnected with the Sex Discrimination Act 1975 and the Disability Discrimination Act 1995). It may well be, and it seems to us that it is likely, that this would have to be a hypothetical comparator.

61. In considering the position of such a hypothetical comparator and thus how the Respondent employer would have treated him or her, the treatment by the Respondent employer of its employees more generally and thus its other employees at the relevant branch who had not sought promotion in a similar way to the Appellant and, further or alternatively, had not made a complaint or instituted a grievance, would be relevant.
62. Such an approach by reference to a hypothetical comparator would involve the making of inferences from findings of primary fact and the closer the circumstances of the comparator the more likely it would be that the answer to the question "Whether the applicant was treated less favourably than the comparator would have been?" would provide an answer to the complete statutory question. Thus, for example, if the only difference between the applicant and the hypothetical comparator was that the applicant's complaint and grievance had a Race Connection the conclusion reached on less favourable treatment is likely to answer the statutory question.
63. An alternative, or additional, approach would be to make the comparison and assess less favourable treatment by reference to an employee who had not sought promotion in a similar way and who had not made a complaint or instituted a grievance. This approach is likely to lead to a finding of less favourable treatment with the consequence that the decision maker would have to go on and deal with the Race Connection by reference only to causation.
64. For example, if in this case it was to be found that the file notes and the monitoring of attendance amounted to less favourable treatment and were triggered by the protected acts we find this approach a conceptually more difficult one. This is because it isolates the issue of the Race Connection and it seems to us that in answering that isolated question one would be thrown back to making a comparison with a comparator who had done the same acts but without the Race Connection. In effect this takes one back to the first approach to determining whether there was less favourable treatment described in paragraphs 69 to 71 hereof.
65. A further alternative would be to find less favourable treatment by reference to employees generally (or assume less favourable treatment) but to go on and conclude that there was a reason for it which was wholly unconnected with the existence of the protected acts.
66. All the above approaches involve the identification of:

(a) the statutory question, and

(b) the fact finding and reasoning which has led to the decision to allow or dismiss a claim for discrimination by way of victimisation by reference thereto.

This is what is needed, and we repeat that generally to satisfy their duty to give reasons it will be necessary for an Employment Tribunal to identify the constituent parts of the statutory question and to deal with them, or to explain why it is not necessary for them to deal with a part of the overall statutory question in answering it.

Conclusions

67. In our judgment on a benevolent reading of the Extended Reasons they demonstrate that the Employment Tribunal erred in law in that:

(A) they asked themselves and answered the wrong question, and further or alternatively

(B) they failed to give a sufficient account of their reasons to demonstrate how they dealt with the issues posed by ss. 2 and 4 of the Race Relations Act 1976 and thus to explain why the Appellant lost his claim for discrimination by way of victimisation based on the file notes and the monitoring of attendance (and thus to explain why they dismissed that claim).

68. We are of this view whether the Extended Reasons are read on the basis that:

(i) the correct test or approach accorded with that set out in the decision of the Court of Appeal in the Nagarajan case (which is the approach referred to by the Employment Tribunal in their exposition of the law), or

(ii) the Extended Reasons are read on the basis that in paragraphs 23 to 25 thereof the Employment Tribunal were in fact ahead of their time and were considering and assessing the claim for discrimination by way of victimisation on the basis of the approach set out in the later decision of the House of Lords in the Nagarajan case.

Conclusion (A)

69. In our judgment the Extended Reasons demonstrate that the Employment Tribunal asked themselves the wrong question in that they asked and answered the general question whether the Appellant had been "victimised" or "been subject to a campaign of victimisation" (see the references in paragraph 26 to "consciously victimised", in paragraph 25 to "a campaign of victimisation against the Applicant" and in paragraph 23 to "a conclusion of victimisation").
70. In our judgment this error is similar to the error found to exist in the Marks & Spencer case. The statutory question is not whether the Appellant was "victimised" or "suffered a campaign of victimisation" on an application of those words having regard to their ordinary meaning in the English language. Victimisation for the purposes of the Race Relations Act is defined and gives rise to the statutory question we have referred to earlier (see also Lord Steyn in the Nagarajan case at [1999] ICR at 894H to 895A). To ask and answer generally whether the Applicant was "victimised" is equivalent to asking and answering the question whether there was "bias" or "unfairness" which was found to be an error of law in the Marks & Spencer case.
71. We accept that if in their exposition of the law the Employment Tribunal had clearly identified the statutory question they were setting out to answer a benevolent reading of their references to "victimisation" might have been treated as a reference to the statutory question or test. But in our judgment they do not do so identify the statutory question.
72. Further, in our judgment, our conclusion that the Employment Tribunal asked themselves a general question by reference to the general meaning of "victimisation" rather than the correct statutory question is supported by the following:

(1) The lack of any reference to a comparator.

(2) The lack of reference in the reasoning to less favourable treatment.

(3) The lack of any reference in the reasoning to whether the protected acts were the reason for the less favourable treatment asserted by the Applicant.

(4) The lack of reference in the conclusions to the subjective motivation of the authors of the file notes and attendance records.

As to point (4), we comment that the Employment Tribunal heard evidence from at least one of the authors but had not heard evidence from at least one of the other authors.

73. It follows that we reject the submission made on behalf of the Respondent company that on the basis that the Employment Tribunal were applying the approach set out by the Court of Appeal in the Nagarajan case, paragraph 26 provides a satisfactory reason as to why the claim was rejected and has the consequence that this appeal should be dismissed. In our judgment:

(a) the first, second, fourth and fifth sentences of paragraph 26 (even when read benevolently) contain generalisations and do not provide adequate reasons for the conclusion of the Employment Tribunal,

(b) we are not concerned with the last sentence of paragraph 26,

(c) as appears above, the third sentence demonstrates that the Employment Tribunal asked itself the wrong question and not whether the conscious motivation of the relevant persons was the fact that the Appellant had done a protected act or acts, and

(d) the phrase at the end of that sentence "or indeed otherwise" is a further demonstration that the Tribunal did not direct their attention to the correct question. As to this point we accept that by itself the addition of that phrase would not provide a compelling reason for a conclusion that the Employment Tribunal had asked themselves the wrong question. However, taken with the remainder of the Extended Reasons in our judgment it is an indication among many that the Employment Tribunal erred in law.

Conclusion B

74. As to this we repeat the comments made in respect of paragraph 26 of the Extended Reasons.
75. In our judgment paragraph 25 cries out for further explanation. For example:

(i) Did the Employment Tribunal consider that the making of the time keeping entries constituted less favourable treatment?

(ii) If so, in the light of their findings why did they not infer that a reason why they were made was the existence of the protected acts?

(iii) What was the view of the Employment Tribunal as to the conscious motivation of the author of those time keeping entries?

In this context we accept that as a generalisation it can be said that it is more difficult to explain why something should not be inferred than it is to explain why it should be. However, in this case given the content of paragraph 25 of the Extended Reasons in our judgment it was incumbent upon the Employment Tribunal to provide reasons why they did not infer that a substantial reason why the time keeping entires had been kept was the existence of the protected acts (and/or a difference in race given the reference to the Zafar case) and the last two sentences of paragraph 25 of the Extended Reasons simply do not provide any such reasons.

76. Turning to paragraph 23 of the Extended Reasons this too in our judgment gives rise to a number of questions relating to the approach and reasoning of the Employment Tribunal which are not answered by the Extended Reasons. For example:

(i) Is it their view that the explanation that was being given on behalf of the Respondent company for the keeping of the file notes was that they ought to be made to record significant events?

(ii) If so, why were significant events not recorded in respect of other employees (with or without them being informed at the time the record was made)?

(iii) Although we see force in the point of common sense referred to by the Employment Tribunal was it the view of the Employment Tribunal that these file notes were kept because there had been a formal complaint and if so, did they think that they had been made by reason of the protected acts?

77. We accept that a possible explanation of paragraph 23 would be that the Employment Tribunal thought that the Appellant was not treated less favourably than another employee would have been treated in similar circumstances. But in our judgment this is reading a lot into paragraph 23 and it is not permissible for us to so construe it.
78. Finally as to paragraphs 23 and 25 of the Extended Reasons the difficulty remains that they do not refer to conscious motivation which is the test, or approach, that the Employment Tribunal identified as being the correct one for them to take in respect of a claim for discrimination by way of victimisation.
79. Overall we add that when we read paragraphs 21 to 26 of the Extended Reasons all of us were extremely unclear as to what the approach and reasoning of the Employment Tribunal was. Notwithstanding the valiant attempts of Counsel for the Respondent company to clarify such approach and reasoning, we remain of that view.

Amendment of the Notice of Appeal

80. Counsel for the Appellant applied to amend his Notice of Appeal to argue that having regard to the decision by the House of Lords in the Nagarajan case the Employment Tribunal erred in law. In making that submission Counsel for the Appellant naturally accepted that at the time the Employment Tribunal made their decision they were bound by the decision of the Court of Appeal in the Nagarajan case.
81. Having regard to our conclusions it is unnecessary for the Appellant to rely on this additional point.
82. However, we add that we refuse this application to amend. In our judgment having regard to the public interest in finality of litigation, if there had not been an existing appeal the Appellant would not have been allowed to bring an appeal out of time to raise this point. Counsel for the Appellant accepted this. He however argued that the fact that the Appellant was appealing on other grounds put him in a special position and enabled him to add this ground based on a later decision of the House of Lords which was declaratory of, or explained what was always, the correct approach to s. 2 of the Race Relations Act 1976.
83. We accept that this was the effect of the decision of the House of Lord in the Nagarajan case. But we do not agree that it leads to the conclusion that we should allow the amendment sought. In our judgment this is not an exceptional case in which the Appellant should be entitled to raise this new point of law (see, for example, Jones v Governing Body of Burdett Coutts School [1999] ICR 38).
84. We add that in our view a different point arises on remission to the Employment Tribunal. In our judgment on that remission the Employment Tribunal should approach the matter on the basis set out by the House of Lords in the Nagarajan case.

Perversity

85. Having regard to our conclusions set out above there is no need for us to consider this ground of appeal.

Order

86. We allow this appeal and remit the Appellant's claim for discrimination by way of victimisation based upon the file notes and monitoring of attendance referred to in paragraph 6 of his Notice of Appeal to a differently constituted Employment Tribunal.