United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT MR T.A. KYTE IN PERSON
For the Respondent	MS DREW (of Counsel) Instructed By: Messrs Thompsons Solicitors Congress House Great Russell Street London WC1 3LW


 


MR JUSTICE NELSON:

1. The Appellant, Timothy Alan Kyte, is a fire-fighter. He joined the Fire Brigades Union, the Respondent, in March 1984, at the same as he joined the Fire Service. He became a Station Officer on the 1^st December 1998, having received various promotions before that, and was posted to Islington Fire Station. On 4^th June 1999 it was alleged against the Appellant that he had made a racist comment whilst on duty on 25^th May 1999. The comment was said to be along the lines of 'Lets us go out and run over some niggers'. Initially it was said that four people had heard him make this comment but he was later told there were two witnesses. He denied the allegation.
2. He was suspended by the Fire Brigade on 17^th June 1999 whilst the allegation was investigated. On 12^th July 1999 he applied to the Respondent union for representation. He was told that an investigation would be carried out in accordance with the Union policy document entitled 'All different all equal'. Under that policy, any member alleged to have committed an act of discrimination, harassment or bullying, would only receive representation if the Regional Committee was satisfied that he had an arguable defence to the allegations made. A procedure was set up whereby officers investigated the matter and reported to the Regional Committee who then had to decide whether the member had an arguable defence. In the Executive Council Statement to Annual Conference in 1999 harassment was described as a generic term for discrimination, bullying and inappropriate language and behaviour. This statement also gave guidance as to the meaning of 'arguable defence'.
3. On 16^th July 1999 the Appellant was formally charged by the Fire Brigade with conduct prejudicial to discipline by reason of having made the racist comment. At this time, and unknown to the Appellant, Mr Samuels, a black fire-fighter was under investigation for allegedly making racially discriminatory remarks about Irish fire-fighters. In the Appellant's case the Union officers investigation resulted in a recommendation that the Appellant should be given representation. This recommendation was confirmed by the London Regional Executive Committee, who do not appear to have been formally part of the procedure, but when the matter was debated and voted upon by the London Regional Committee itself, it was decided, by 10 votes to 5, that the Appellant was not entitled to representation. In the case of Mr Samuels, the Union officers carrying out the investigation also recommended representation but in his case the London Regional Committee granted representation. Disciplinary proceedings were never taken against Mr Samuels.
4. Mr Kyte appealed the decision of the LRC to the Respondent's Executive Council Appeals Committee (the ECAC). His appeal was rejected on 15^th September 1999. On 3^rd November 1999 after the hearing of the complaint against him, at which the Appellant was not represented, but assisted by a colleague, Andy Dark, he was dismissed. He remained suspended on full pay until his appeal, after which he was reinstated on 7^th April 2000 and still remains a fire fighter and member of the Respondent union.
5. The Appellant lodged a complaint to the Employment Tribunal on 15^th March 2000, alleging that there had been racial discrimination against him by the failure of the Respondent to give him representation when, had he been a black fire-fighter, he would have been granted representation. In his IT1 the Appellant complained that he had received unfavourable treatment as a white officer in comparison with a black fire-fighter who had clearly been treated differently and more favourably, namely Mr Samuels, and also complained about the conduct and procedure of the LRC meeting and the ECAC meeting. The Respondent cross appeals, alleging the Employment Tribunal erred in law in excluding evidence, including the 'diary' which had been prepared by another fire fighter and contained allegations of discrimination against the Appellant.
6. The Employment Tribunal found that there were procedural failings in both the LRC and ECAC hearings but unanimously decided that the Respondent had not discriminated against the Appellant on the grounds of race. They concluded that Mr Samuels was not a true comparator under section 3(4) of the Race Relations Act 1976, that no inference that the LRC had discriminated against the Appellant on the grounds of race could properly be drawn and that 'an officer from an ethnic minority would also have been unsuccessful on appeal in similar circumstances where the ECAC would have had before it similar evidence against such an officer.'
7. This decision is challenged in the appeal before us. At a preliminary hearing on the 3^rd August 2001 the whole Notice of Appeal was sent to a full hearing and the Appellant relies upon the judgment of Mr Justice Lindsay at that hearing in support of his appeal.

The Employment Tribunal's findings.

8. The Employment Tribunal heard evidence from Mr Kyte, and on his behalf, from Mr Bailey the group secretary of the Respondent, and Mr Gilson, another fire-fighter and union member. On behalf of the Respondent they heard evidence from Mr Shergold, the secretary of the LRC, and Mr Dave Patton, the secretary of the ECAC. They also read a statement from Mr Gilchrist, the current General Secretary and had before them the main bundle of documents, various witness statements, the original 'diary' and another bundle of documents. The Tribunal decided that the only issue they had to determine was whether or not the Respondent had discriminated against the Appellant in not providing him with representation and that hence the only relevant evidence was what was known to the decision makers at the time. They decide to exclude all other evidence. They set out the racist comment, which the Appellant was alleged to have made and noted that he was formally charged with conduct prejudicial to discipline for making that remark. They considered the facts in detail before coming to their conclusion.

The Investigation

9. The investigation into the allegation against the Appellant was carried out on behalf of the Union by Mr Price and Mr Bailey. The Tribunal noted that Mr Dodson, Mr Ali, and Mr Wheeler gave background evidence in support of the Appellant and Mr Ramsey, a black fire-fighter, said that he did not believe that the Appellant was racist and that he ought to be given representation even though other fire-fighters had remarked that they knew that the Appellant's 'mouth would get him into trouble'. Statements were taken from the two fire fighters who said that they had heard the racist comment. Mr A Patton said "I wasn't paying full attention to him but I think he said 'I'm pissed off lets take the lorry out and run down some Niggers' " and Mr R Houldsworth said that when the Appellant was asked where the crew were going he said 'I don't know anywhere, lets just get out of here, lets go and run some Niggers over.' The statements, which these two officers had already made to the Fire Brigade, were given by the witnesses to the investigators. In one of those statements Mr Patton said 'I wish to add that when I said that Station Officer Kyte used the word 'Niggers' that is what I am sure that I heard him say although I admit that there is a slight possibility that I could have misheard him.' In the supplementary statement, which he made to the Fire Brigade, Mr Houldsworth said 'I wish to add that when I said that Station Officer Kyte used the word Nigger that is certainly what it sounded to me'. Both Mr Patton and Mr Houldsworth in their statements to the Fire Brigade said that they did not think that the remark was racist or malicious, but rather, a poor attempt at humour. Mr C Brown said that the Appellant had said to him that if two witnesses said that he had said it, he must have done. Mr N Williams said that the Appellant said to him that nobody would make up such a serious allegation so that he must have made the comment; Mr Williams also referred to a diary being kept, by another fire fighter, which alleged discrimination. Mr Ramsey told the investigators that the attitude of Mr Williams and Mr Brown to the Appellant was 'very extreme, basically saying we don't want racists in the job, he should be sacked.'
10. The investigators produced two letters by a Mr Smith and a Mr Buck and referred in their report to the evidence, including the diary, though they did not obtain a copy of that and did not attach it to the report. The investigators recommended that the Appellant should receive representation. When the Appellant was sent a copy of the report he denied using the word 'Nigger' and said that he would never have done so. He would wish at a later stage to defend himself against the personal attacks contained in the report. The matter was next considered by the London Regional Executive Committee which consisted of the Respondent's Chief Officers of the London Area. Their consideration of the matter does not appear to be required under the 'All equal all different' procedure but they did consider the matter and recommended to the LRC that the Appellant should be given representation.

The LRC meeting.

11. This took place on the 24^th August 1999. The Tribunal described the meeting as becoming heated and at times highly charged. There was a heated discussion as to whether or not Mr Williams should be allowed to speak about the diary and whether he should be allowed to vote. The LRC voted that he should be allowed both to speak and to vote. Two comments in particular made during the course of the heated discussions were noted by the Tribunal. The first was by a Mr St Paul who was a substitute on the Committee for another member from a minority group. Mr St Paul said that whenever the word 'Nigger' was used he always thought that 'they' were talking about his children. Ms Griffiths who was substituting for a member of the Women's Advisory Committee, said that she proposed to take the names of all those who voted in favour of representation. When she was challenged by another fire fighter to withdraw the remark she refused to do so. Mr Williams effectively repeated what was contained in the report to the effect that the 'so called diary' contained allegations of earlier incidents of discrimination by the Appellant. Mr Shergold, who was chairing the meeting but did not have a vote, proposed that the meeting should be postponed so that the diary itself could be considered but this was rejected by the meeting. The LRC members, described by the Employment Tribunal as all experienced union officers, voted 10 – 5 against representation being provided to the Appellant.

The ECAC meeting.

12. The appeal committee was appointed after the Appellant appealed against the LRC decision on the 26^th August 1999. There was little evidence before the Employment Tribunal as to what had happened at the appeal stage but it was known that the ECAC met during the course of a conference in a large hotel room at the same time as another meeting was taking place in the same room between Mr D Patton, the Respondent's national officer, and another officer. The ECAC considered the same documentation as the LRC and the minutes of the LRC meeting before it went into closed session, it being the practice of the Respondent not to keep either notes or minutes of the LRC's closed session. The ECAC rejected the appeal though there was no evidence before the Employment Tribunal as to how they came to their decision. A review of the appeal decision was requested by the Appellant but refused.

The comparator Mr Samuels.

13. The Tribunal considered the case of Mr Samuels, a black fire fighter who in about July 1999 had been under investigation for allegedly making racially discriminatory remarks about Irish fire fighters. They noted that an investigation was carried out by union officers and 'that those involved in the allegation had declined to provide any evidence of the allegation against Mr Samuels. There was a brief discussion at the London Regional Committee which decided to grant him representation to defend the allegations. In the event disciplinary proceedings were never taken against him.' (Paragraph 16)

The Employment Tribunal's decision.

14. The Employment Tribunal came to the following conclusions on the basis of the evidence before them:-

i. Mr Samuels was not a true comparator as there was no evidence before the LRC against Mr Samuels at all whereas there were two formal statements against the Appellant in his case. That difference in the evidence available amounted to a material difference. (paragraph 21)

ii. There were many criticisms to be made of the conduct of the LRC meeting by the Respondent, in particular their consideration of hearsay evidence from the diary even though it was not in front of them, allowing Mr Williams who had given evidence to LRC to vote as well, the implied threat by Ms Griffiths to force those present to vote against the representation and the fact that the LRC appear to have decided that the Appellant was guilty of the charge rather than that he had no arguable defence. They concluded however that these were all procedural matters and the question which they had to decide was whether or not they should draw an inference of discrimination on the basis of those procedural failings. They took into account a letter in the bundle of documents written by Mr Dark who had been present at the LRC meeting and described the committee, including himself, as making the decision in good faith based on the information provided in the short time they had to consider the papers. Mr Dark had voted against representation although he had subsequently believed that to be the wrong decision and therefore provided assistance to the Appellant at the hearing of the complaint against him. The Tribunal noted that in spite of Ms Griffiths intervention five members still felt able to vote in favour of representation. They concluded that there was not sufficient evidence on which to draw an inference that the LRC had discriminated against the Appellant on the grounds of race. (paragraphs 21A, 22 and 23)

iii. There was no explanation for the ECAC decision and not a great deal of evidence that it had taken the matter particularly seriously. Nevertheless, having regard to the documentation which was before the LRC and also before the ECAC and in particular the evidence of the two fire-fighters who alleged that they had heard the statement being made, the Employment Tribunal could understand why the appeal was rejected. They also took into account the fact that the ECAC considered whether the Appellant was guilty of alleged misconduct rather than whether he had an arguable defence but notwithstanding that clear failing, were satisfied that an officer from an ethnic minority would also have been unsuccessful on appeal in similar circumstances where there was similar evidence against such an officer.

The Submissions before the EAT.

1. The Appellant's submissions.

15. The Appellant, who appeared in person, relied for the most part on his skeleton argument with brief additional oral submissions. His skeleton brought together the Grounds of Appeal and the points which Mr Justice Lindsay had raised during the course of his judgment at the preliminary hearing when the appeal was allowed to proceed to a full hearing. The Appellant relied upon the following points:-

i. The 'diary' should not have been considered by the Employment Tribunal when they had already ruled that the only evidence to be allowed was that which was known to the decision makers at the time and had decided to exclude all other evidence. The only evidence of the diary before the LRC had been hearsay and neither Mr Bailey nor Mr Price, the investigators, had ever seen the diary themselves. In those circumstances it was a perverse and unjust criticism of the investigators to say that 'they rejected out of hand background evidence in the form of the so called diary'. (paragraph 21).

ii. The finding that Mr Samuels was not a true comparator as when the matter came to be considered by the LRC there was no evidence against him at all, was incorrect, as the LRC were aware of the complaints made against him, in particular because a member of the committee, Mr Andy Dark, was advising him. The statements from the Fire Brigade could have been obtained as they had been in the case of Mr Patton and Mr Houldsworth.

Furthermore the finding that there was no evidence against Mr Samuels could only dispose of him as a comparator if the LRC had decided that Mr Samuels had an arguable defence because there was no evidence against him. The Appellant adopts the passage in the preliminary hearing judgment in which it is said that there is no indication that that had been the case and no evidence as to what the 'brief discussion' at the LRC in Mr Samuel's case consisted of. The Appellant submitted that there was evidence before the Employment Tribunal from Mr Gilson that those present at the LRC meeting found the allegation against Mr Samuels amusing.

It was therefore an error of law by the Employment Tribunal to decide that Mr Samuels was not a true comparator on that basis and in any event there may have been a failure to comply with the requirements of Meek -v- City of Birmingham District Council [1987] IRLR 250.

iii. The Employment Tribunal should not have dismissed the shortcomings of the LRC as merely 'procedural' as to do so was to diminish the aggregate effect which it is arguable they had.

Did the Tribunal consider

a. whether the LRC would have entertained an emotional appeal about children if a white man had been traduced,

b. whether the unpleasant threat to take names would have been made had a remark offensive to, say, white or Asians, been made. Some votes changed as a result of Ms Griffiths intervention, and

c. would Mr Williams apparently damaging hearsay which the Appellant had no reason to expect to have been given to the LRC, have been deployed at an LRC meeting if the case had not been, as it was, the offensive use of the expression 'Nigger', that Mr Kyte had been alleged to have used. The LRC appeared to have accepted hearsay in relation to quite separate allegations of racism not known in advance to Mr Kyte nor obtained or considered by the investigators.

The Appellant argues that had those matters, raised in the preliminary hearing judgment, been considered the LRC might not have been able to conclude as it did.

iv. the comparison should have been made not simply between the Appellant's and Mr Samuel's case but between his case and the case of anyone who was given due process at the LRC.

The failure to pose and answer this question and those set out in the proceeding paragraph amounted to an error of law by the Employment Tribunal.

v. the conduct of the LRC was so lacking and its failings so great that the inference of racism set out in King -v- The Great Britain – China Centre [1991] IRLR 513 should have been drawn. It was perverse and unjust not to draw such an inference when no explanation from the Respondents was available and nobody who voted on the LRC was called to give evidence by the Respondent.

vi. the conduct of the ECAC was inadequate, they did not appear to take the matter seriously and no evidence was called by the Respondent to explain what happened at the ECAC. Nor was the Appellant properly informed of the procedures of the ECAC.

In view of the failure of the Respondent to explain the failings of the ECAC there was no alternative but to draw the inference that there had been less favourable treatment and that that was on racial grounds. Zafar -v- Glasgow City Council [1998] IRLR 36.

vii. the Appellant should have been awarded one day's costs in view of time wasted in considering the diary which was not relevant.

16. As to the cross appeal contending that the Employment Tribunal erred in law in excluding the evidence relating to the diary and the remarks recorded in it, the Appellant submitted that the diary was a smoke screen. The investigators had never seen it.

2. The Respondent's submissions.

17. The essence of the Appellant's complaint against the Employment Tribunal's decision was that it failed to draw the inference that the discrimination in failing to grant representation was on racial grounds. The drawing of an inference is however is a matter of applying commonsense and judgment to the facts found. A matter which, having heard the evidence, the trial court is in the best position to do.
18. The Employment Tribunal considered the evidence which was put before it with care and cannot properly be said to have made any error of law.
19. As to the diary the Respondent submitted that it was relevant and had to be considered by the Employment Tribunal as it had been raised by Mr Williams in evidence. He had referred to the 'diary' in his interview with the investigators but they had not obtained a copy of it. At the LRC Mr Williams sought to deal with this omission and wished to speak about the diary and was eventually allowed to do so after heated discussion and a vote. He repeated that the diary contained allegations of earlier incidents of discrimination by the Appellant. In these circumstances no criticism can properly be levelled against the Employment Tribunal for dealing with the matter as it did.
20. Mr Samuels was properly rejected as a true comparator by the Employment Tribunal as they were correct in their finding that when the matter came to be considered by the LRC there was no evidence against Mr Samuels at all, and that, on the evidence before them, was the reason why Mr Samuels had been granted representation. This is clear from the evidence of Mr Shergold who was the chairman of the LRC meeting dealing with Mr Samuels case. He says in his statement which was before the Employment Tribunal (page 8):-

"There was no detailed debate as it was clear to the committee that the complainant, Mr Kelly, would not provide any evidence to the investigators in support of the complaint. It was also known that one of the key witnesses, Mr Byrne, was not prepared to co-operate…in the circumstances, in the face of a denial by Mr Samuels, it was the unanimous view of committee members that this was a clear case in which representation should be granted."

21. Whilst the LRC were therefore aware of the nature of the complaints made against Mr Samuels there was no evidence in support such complaints and that was the reason, coupled with Mr Samuels denial of the allegations, why representation was granted. Statements from the Fire Brigade were not available, and would not have been made available. It was only where the witness himself was prepared to hand over a statement that he had made to the Fire Brigade, as Mr Patton and Mr Houldsworth did, that it would become available. The reason why this was not a feature before the Employment Tribunal was that the Appellant was then contending that it was the result of the LRC hearing in Mr Samuel's case rather than the manner in which it was conducted which showed that there had been racial discrimination.
22. Mr Gilson was not present at the LRC meeting dealing with Mr Samuels case and there is no evidence before the EAT as to what members of the committee had said to him. The passage in his statement in which he says that it appeared to him that the allegation against Nam Samuels was not regarded as seriously as the charge against Tim Kyte, does not assist the Appellant. The Respondent submits that the evidence of Mr Bailey, who was present at this LRC meeting described it as 'orderly and calm'.
23. The Respondent submits that procedural or even substantive unfairness cannot, without more, give rise to an inference of racial discrimination. The difference between what should have happened and what did happen does not necessarily amount to racial discrimination. (Zafar -v- Glasgow City Council [1998] IRLR 36). The interventions by Mr Williams, Ms Griffiths and Mr St Paul were all part of the heated discussion after which there was a vote and the decisions.
24. The intervention of Mr St Paul was a comment on an allegation of racism, not a comment on Mr Kyte's race. Indeed none of the interventions were or could properly be seen as a comment on the Appellant's race. Mr Williams raised the question of the diary and its allegations of earlier incidents of discrimination by the Appellant when it was not raised in the investigation, but did not do so because of the Appellant's race. Mr Ramsey had described Mr William's attitude as being that he didn't want racists in the job and that the Appellant should be sacked i.e. he was criticising the Appellant's conduct not referring to his race. The Appellant himself at no time suggested that Mr Williams, who is white, had a racial motivation against the Appellant.
25. Indeed the Appellant in his own statement makes it clear that he thought the complaint arose because certain fire fighters disliked him. In paragraph 6 of his statement he said:-

"everyone knew that the Red watch, of which I was now the Station Officer, was militant. The watch had not had a proper Station Officer for over six years. I had come in and the fire fighters did not like some of the changes that I had introduced but they were changes that were in line with management policies. The impression I was given was that the complaint had arisen as a result of certain fire fighters dislike of me in my role as Station Officer."

26. He said that he knew that Houldsworth disliked him intensely because he had found him in bed on duty at 11 a.m. one day. 'There are many other examples where I had caught him out and he hated me as a result.' Patton, the other fire fighter who had alleged that the Appellant had made the racist comment, was 'a backbiter. He would tell tales both ways.' (paragraph 16 of the Appellant's statement). Paul Embury, the fire fighter who had compiled the diary, disliked him because the Appellant insisted on his performance of certain tasks. 'Embury disliked me intensely. He resented the work that I insisted that he do certain tasks as part of his training and in accordance with his task book. I subsequently found out that he complained about me to Williams, who had advised him to keep a 'diary.'' (Paragraph 18 of the Appellant's statement).
27. The intervention of Ms Griffiths did not prevent five members from voting in favour of representation. It was the vote, after a heated discussion, which led to the decision, not the intervention of Ms Griffiths or any other intervention. There was no suggestion that the Appellant's race had been raised during the debate and Mr Andy Dark who had voted against representation but subsequently represented the Appellant, described the decision as having been taken in good faith. Mr Dark did not give evidence for the Appellant nor did he in any document referred to by the Tribunal, raise the possibility of racial discrimination.
28. Whilst the Employment Tribunal did not expressly rely on the Appellant's statement recording certain fire fighters dislike of him and his impression that the complaint had arisen because of such dislike, they had his statement in front of them. They did however expressly rely on the document from Mr Dark, which the Respondent submits strongly supported the absence of racist motivations. They also had Mr Shergold's statement before them in which he expressed the view that Ms Griffiths felt very strongly that there was no arguable difference and that Mr Kyte should not receive representation. She thought that was the correct conclusion and because she felt so strongly she referred to 'naming and shaming'. Mr Shergold expressed the view that this was 'over the top' but did not consider that it was an attempt to bring improper or external pressure. It simply reflected that Ms Griffiths felt so strongly about the matter that she could not understand how anybody could conclude that there was an arguable defence bearing in mind the evidence in the report. He said on page 6 of his statement that he had no doubt that the votes were cast on the basis of an objective and honest assessment of the evidence in the report and there was absolutely no question of racial bias on the part of the committee to refuse representation.
29. The Respondent also relies on the evidence of Mr Bailey, the Appellant's own witness, who did not suggest that there had been any race-based comment.
30. The Respondent submits that the Employment Tribunal did consider the evidence properly and in the correct manner and in view of the evidence before them came to a perfectly proper conclusion.
31. They specifically considered the hypothetical comparator in their conclusion and clearly had it firmly in mind when making their decision.
32. In the face of the evidence that they had before them it would have been inappropriate to have drawn the inference of racism. This applied equally to their findings in relation to the ECAC. That appeal committee had before it the same documentation as the LRC and it was, as the Employment Tribunal decided, not surprising that the appeal was rejected having regard to the evidence of the two fire fighters who alleged that they had heard the statement being made. There was no room for the inference of racism to be drawn and their conclusion that an officer from an ethnic minority would also be unsuccessful on appeal in similar circumstances with similar evidence before it could not properly be criticised.
33. As to costs that was a matter of discretion for the Tribunal and no point of law arose. The Tribunal had not in any way fettered itself to follow the indication it had given even after the evidence had unfolded.
34. As to the cross appeal the Respondent submits that this does not arise unless the Appellant succeeds as in such circumstances it would be academic. In their submissions the Respondent contended not that the diary, but that the evidence of Mr Patton, Mr Houldsworth, Mr Ramsey and Mr Embury should have been heard as it was relevant to whether or not the Appellant's assertion that he had not made the racist comment was untrue, whether the investigation had excluded relevant evidence which led to the intervention by Mr Williams and whether the Appellant was bringing the claim in good faith or not.

The EAT decision.

35. The question which we must ask ourselves is whether the Employment Tribunal has made an error of law. A conclusion on the facts which was properly open to them on the evidence before them cannot amount to an error of law, even if that conclusion is one which not all Tribunals would have reached. An Employment Tribunal may consider a substantial body of evidence in the course of a hearing. It does not normally have to set out in detail each and every piece of evidence before it, not is it appropriate to analysis its reasoning in too legalistic a manner. Miriki -v- General Council of the Bar [2001] EWCA Civ 1973 and Marks & Spencer -v- Martins [1998] ICR 1011. With these matters in mind we consider the Appellant's submission, and his understandable reliance on the judgment at the preliminary hearing.
36. We should emphasise that we have now had the benefit of hearing detailed submissions on behalf of the Respondent and seeing the statements of the witnesses which were before the Employment Tribunal. The EAT at the preliminary hearing did not have these advantages.

The Diary.

37. There are in effect two criticisms made in relation to this document. Firstly that the Employment Tribunal should not have considered it as they had already ruled that the only evidence to be allowed was that which was known to the decision makers and secondly, the conclusion that the investigators had rejected the background evidence of the diary out of hand was perverse and unjust. We deal later in this judgment with the related allegation that Mr Williams' damaging hearsay in referring to the contents of the diary during the LRC meeting was not given sufficient weight by the Employment Tribunal.
38. We are satisfied that the Employment Tribunal made no error in the manner in which it dealt with the 'diary'. It was referred to in the investigator's report but not produced by them. It then became a significant feature at the LRC meeting, which became heated when Mr Williams sought to speak about the diary. The LRC then put the matter to the vote and allowed him to speak as to the diary and to vote. He repeated the fact that the diary contained allegations of earlier incidents of discrimination allegedly committed by the Appellant. The contents of the diary were therefore plainly before the LRC even though the document itself was not. In these circumstances it was perfectly proper for the Employment Tribunal to consider that evidence, if necessary by considering the diary. The conclusion that the investigators had rejected the background evidence of the diary out of hand was a permissible finding in view of the fact that the investigators, whilst mentioning the document, had failed to obtain it and at least put it before the LRC so that they could consider whether its contents were relevant or not.

Mr Samuels as comparator.

39. When the statements before the Employment Tribunal are considered it becomes clear that the finding at paragraph 21 of their decision that there was no evidence against Mr Samuels before the LRC at all was correct, and that the reason why Mr Samuels was granted representation was because he denied the charge and there was no evidence against him. This is clear from paragraph 8 of the statement of Mr Shergold which was before the Employment Tribunal. In the Appellant's case however, subject to the witnesses mild reservations of not, for example, being 100% sure of precisely what was said, there were statements from the two witnesses to the comment stating that the Appellant had made it. These facts justified the Employment Tribunal's conclusion that Mr Samuels was not a true comparator.
40. The LRC had to deal with Mr Samuels case on the basis of the evidence put before it. There is no evidence to suggest that any statements were in fact available from the witnesses who refused to co-operate or support the complaint. Such a criticism of the LRC hearing in respect of Mr Samuels was not an important feature of the hearing before the Employment Tribunal no doubt, because, as the Respondents submit, the Appellant was then contending that it was the result of the LRC hearing rather than the manner in which it was conducted which showed that there had been racial discrimination.
41. There is no evidence before the EAT from Mr Gilson which demonstrates in any way that the LRC hearing in respect of Mr Samuels was not conducted properly on the basis of the evidence then available to it. Mr Bailey, the Appellant's own witness, described that LRC meeting as 'orderly and calm'.

Procedural failings of the LRC

42. The Employment Tribunal was correct to find that there were many criticisms to be made of the Respondent in its conduct of the LRC and the ECAC meetings. They set these out in paragraph 21(a) of their decision. They expressly set out the interventions of Mr St Paul, Ms Griffiths and Mr Williams in paragraph 18 of the decision and hence, it can be inferred, had these matters in mind when considering the evidence and coming to their conclusions. It is also clear from paragraph 26 of their decision that they had firmly in mind whether an officer from an ethnic minority would have failed in an appeal against a decision of the LRC refusing representation on similar evidence to that which the LRC had had when first refusing representation. In paragraph 21(a) they stated:-

"The Tribunal also had to consider whether or not the LRC would have reached a different conclusion had the Applicant been from an ethnic minority?"

43. The Employment Tribunal did therefore have in mind the appropriate questions when considering the evidence. We however have had the benefit of seeing the statements which were before the Tribunal. These show that that evidence provided explanations as to why the Appellant may have been refused representation. He was, on the basis of his own statement disliked by both those who had made the complaint against him and had the impression that the complaint had arisen because of certain fire fighters dislike of him in his role as Station Officer. He described Mr Houldsworth as disliking him intensely or hating him; Mr Patton as being a backbiter who would tell tales both ways and Mr Embury, the fire fighter who had compiled the diary, disliking him intensely and resenting him. The evidence also indicated that the Appellant was regarded as a man whose 'mouth would get him into trouble'. Mr Williams was clearly hostile to him, as was Ms Griffiths. It appears however from the statements which we have now seen that this hostility was based on the belief that the Appellant had made the racist remark, not on the grounds that he was white. (Mr Shergold page 6 re Ms Griffiths). As Ms Drew, on behalf of the Respondent submitted to us, such hostility, or even a decision on the basis that the Appellant was guilty of a racist comment would be treatment which was conduct related rather than race related. (Fire Brigade's Union -v- Frazer [1998] IRLR 697.) In other words hostility was being shown to the Appellant or a decision being taken against him, not because he was white, but because he was a person who had made a racist comment.
44. The letter from Mr Dark upon which the Employment Tribunal placed reliance in their decision was clearly of considerable weight and importance. He had been present at the meeting, voted against representation for the Appellant, later changed his mind and had in fact appeared to assist the Appellant when the complaint against him was heard. Mr Dark described the committee, including himself, as having made the decision in good faith. There was therefore evidence before the Employment Tribunal that the many failings of the LRC meeting, taken together or separately, did not prevent a proper vote being taken by those present with the decision being in good faith. There was in addition, as we have indicated above, ample material before the Tribunal for them to conclude that whatever the interventions of Ms Griffiths, Mr St Paul and Mr Williams, the real reason why the Appellant was refused representation and some plainly, from the vote, thought had wrongly been refused representation, was because it was believed that he had made the racist comment, not because of the fact that he was white. If the Appellant's views in his statement are correct personal dislike of him may also have been a factor.

The hypothetical comparator.

45. The Employment Tribunal clearly did consider the hypothetical comparator as is shown from the passages in paragraph 21 and paragraph 26 of their decision where they expressly referred to the need to consider whether a different conclusion would have been reached by the LRC or ECAC had the Appellant been from an ethnic minority.
46. We are satisfied that the Employment Tribunal had this question in mind, as well as the interventions of Mr St Paul, Ms Griffiths and Mr Williams in relation to all the other evidence they had before them.

The drawing of an inference that racial discrimination had occurred.

47. The Employment Tribunal made no error of law in failing to draw an inference of racial discrimination on the facts before them. The conduct of the LRC meeting left much to be desired in its manifest failure to carry out a calm objective assessment of whether an arguable defence existed, but whilst those failings were substantial there was no proper basis for an inference of racial discrimination to be drawn when the evidence before the Tribunal could quite properly have led it to the view that it should not be drawn because the refusal of representation was not made because the Appellant was white, but on the strength of the evidence against him, and on his own statement, that he was a man who was disliked personally by a number of colleagues. In the presence of such evidence it was permissible for the Employment Tribunal to decline to draw an inference of racial discrimination. The evidence of Mr Shergold and Mr Dark supported the view, that whilst the LRC hearing demonstrated many failings, its decision was taken in good faith on a proper vote.
48. The Tribunal could only act on the evidence before it and such evidence justified their conclusions. It would have been preferable for the Tribunal to have explained in more detail why it declined to draw the inference, but its failure to do so does not amount to an error of law.
49. The same reasons apply to the conclusions of the Employment Tribunal in relation to the ECAC meeting. The conduct there was inadequate but the refusal to find racial discrimination was permissible on the evidence. The appeal committee saw the statement from the two witnesses to the complaint and it was not surprising that the appeal was rejected having regard to the evidence of the two fire fighters who alleged that they had heard the statement being made. Such a finding was permissible by the Employment Tribunal even when no evidence was called as to the conduct of the ECAC meeting itself.
50. As far as the application for costs is concerned this matter was within the discretion of the Employment Tribunal and no proper basis exists for criticising their decision.
51. We have considered the Appellant's skeleton argument, his submissions, his grounds of appeal, the judgment of the preliminary hearing, and the Respondent's submissions and the statements which were before the Employment Tribunal. We have looked at the Employment Tribunal decision in the light of all these matters before us and have come to the clear conclusion that the Tribunal considered this unsatisfactory matter with care, analysed it and assessed it properly and came to conclusions on the facts and law which were open to them on the evidence before them. We must therefore dismiss this appeal. The cross appeal does not therefore arise.