United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R de MELLO (Of Counsel) and MR T BROWNE (Of Counsel) Instructed by: Messrs Khan's Solicitors 165 Ley Street Ilford Essex IG1 4BL
For the Respondent	MR PAUL GOULDING QC and MS DINAH ROSE (Of Counsel) Instructed by: Messrs Herbert Smith Solicitors Exchange House Primrose Street London EC2A 2HS MS INGRID SIMILER (Of Counsel) Instructed by: Messrs Fox Williams Solicitors City gate House 39-45 Finsbury Square London EC2A 1UU


 


THE HONOURABLE MR JUSTICE ELIAS:

Introduction.

1. This is an appeal against a decision of the employment tribunal which found that the appellants were liable for certain acts of race and sex discrimination. No remedies hearing has yet been held. We have been greatly assisted in this appeal by the careful and considered submissions of all counsel. Mr Goulding QC acted for the Law Society; Ms Simler for the individual appellants; and Mr de Mello for Dr. Kamlesh Bahl.
2. Kamlesh Bahl is a black Asian woman. She was born in Kenya but is a British citizen who has lived in the United Kingdom since she was nine years old. Her involvement with the Law Society goes back to 1984. She was first elected as a member of the Council of the Law Society in 1990 as a representative of the Commerce and Industry Group. She served on various committees and sub-committees until her final resignation as a member of the Council of the Law Society was accepted on 12 April 2000. Apart from her Law Society activities, she was also Chair of the Equal Opportunities Commission from 1993 until her resignation in November 1998.
3. In July 1998 Dr. Bahl was elected as the Deputy Vice President of the Law Society, and a year later became Vice President. Initially her election was widely welcomed; it seemed that she would become the first woman, and the first member of an ethnic minority group, to be President of the Law Society. She was closely involved with the Law Society's programme of reform, and was appointed to the Chair of the Interim Executive Committee ("IEC") from January to December 1999. The IEC was the body responsible for carrying forward the process of reform which was being actively undertaken by the Law Society at that time.
4. On 9 December 1999, a formal complaint against Kamlesh Bahl under the Law Society's Dignity at Work Policy ("Dignity Policy") was lodged by MSF on behalf of a member of staff, alleging persistent bullying and intimidation over a prolonged period of time, causing the staff member to suffer stress-related illness. The complaint also referred to a number of other employees of the Law Society who had complained of similar treatment, but were too frightened of the repercussions to make formal complaints. (MSF is the Manufacturing, Science & Finance' branch of Amicus, the union for Law Society staff.) In the words of Lord Griffiths, in the subsequent inquiry conducted by him into the matter, "it was clearly a serious allegation that required urgent investigation".
5. The Applicant was informed of the complaint, and since the Dignity Policy did not identify a comprehensive procedure for the investigation of complaints made against an officeholder, steps were taken to agree with Kamlesh Bahl and her legal advisers an appropriate procedure to be followed. All parties were agreed that it was essential for the matter to be investigated by an independent third party. On 16 December 1999 a procedure was agreed between the Law Society officers, MSF and Dr. Bahl's legal advisers, and endorsed by the Law Society Council.
6. Lord Griffiths was appointed by the Master of the Rolls, who is the Visitor to the Law Society, to chair the inquiry. He was advised by two expert assessors (drawn from the lay membership of the Employment Appeal Tribunal). The terms of reference of the inquiry were set by Lord Griffiths after consultation. Five complainants pursued complaints against Kamlesh Bahl under the Dignity Policy.
7. The inquiry took place between 21 and 25 February 2000. No allegation of race or sex discrimination was made by or on behalf of Kamlesh Bahl until after the Griffiths inquiry had taken place and the report published.
8. Lord Griffiths' Report was published on 10 March 2000. Complaints of bullying in relation to all five complainants were upheld. Lord Griffiths concluded as follows:

"We regret that we have been driven to the conclusion that the Vice President resorted at times to bullying tactics. She treated the staff without due consideration demanding immediate response to her own wishes without regard to their other duties. Her treatment of staff was at times demeaning and humiliating and at other times offensively aggressive. In many ways, she usurped the Secretary General's role as head of staff and introduced an atmosphere of fear and confusion in the line of command."

9. On 16 March 2000, the Law Society Council passed a motion of censure of the Applicant, and voted to suspend her as a member of Council pursuant to the Law Society bye-laws (bye-laws 68 and 69). That motion obliged the Law Society to hold a Special General Meeting within 35 days to consider whether Dr. Bahl should be removed from office. On 21 March 2000 Kamlesh Bahl resigned as Vice President, and tendered her resignation as a member of Council. That resignation was accepted by Council on 12 April 2000.
10. On 15 March 2000 Kamlesh Bahl brought proceedings for unlawful race and sex discrimination against the Law Society, Robert Sayer, Jane Betts and Jean Johnson. Robert Sayer was the President at the relevant time; Jane Betts was the Secretary General; and Jean Johnson was the Head of Human Resources. Dr. Bahl made allegations of direct discrimination arising out of their handling of the complaints of bullying made against her under the Dignity Policy, and the way in which those complaints had been dealt with and investigated. By a second Originating Application (dated 20 June 2000) Dr. Bahl brought complaints of discrimination by way of victimisation against the Law Society and certain other officers in relation to the manner in which she was treated following the lodging of her application alleging sex and race discrimination.
11. By a decision provided to the parties on 5 July 2001, the employment tribunal upheld certain allegations of race and/or sex discrimination against Robert Sayer, Jane Betts and the Law Society. It found that in certain respects both Mr Sayer and Mrs Betts had committed unconscious direct sex and race discrimination, and that the Law Society was liable for their actions. The remaining allegations of race and sex discrimination, the complaints of victimisation, and the claims against Jean Johnson and other individual officers were all dismissed or withdrawn.
12. The employment tribunal did in fact find that the decision to issue a press release in which the Law Society stated that it "entirely rejects the outrageous allegation of racial and sexual discrimination made by Dr. Bahl" was an act of victimisation. However, because the allegation was out of time and the tribunal considered that it was not just and equitable to extend time, no relief was granted in respect of it. In the circumstances it is not necessary for us to consider whether the tribunal could properly reach a conclusion that a statement in forthright terms rejecting an allegation of discrimination can properly, as a matter of law, constitute discrimination on grounds of victimisation.
13. The Law Society, Robert Sayer and Jane Betts all lodged appeals against the Tribunal's decision in August 2001. They submit that the employment tribunal erred in law in finding any race or sex discrimination. In addition, certain of the complaints were made out of time but the tribunal extended time on the grounds that it was just and equitable to do so. The decision of the employment tribunal to extend time is also challenged in these proceedings.
14. Kamlesh Bahl has lodged a cross-appeal. Initially it was extremely broadly framed but was later narrowed and directed at four conclusions of the tribunal. These were the tribunal's findings that Dr. Bahl had deliberately lied on oath; that although there was race and sex discrimination it was unconscious discrimination - Dr. Bahl says that the tribunal ought in the circumstances to have inferred conscious direct discrimination; that the Law Society had not failed to carry out a proper investigation into the bullying allegations; and that there was a failure by the Law Society properly to deal with a formal complaint which she had lodged about Mr Sayer. At the hearing before us, Mr de Mello realistically recognised that he could not properly advance any of these grounds save for the contention that the tribunal ought to have found direct discrimination. He accepted that the last two grounds were really challenges to the findings of fact by the tribunal and were not therefore within the jurisdiction of this Tribunal. As to the proposed challenge to the finding that Dr. Bahl had deliberately lied, he made it plain that Dr. Bahl does remain aggrieved by this finding and considers it to be an unjust conclusion. However, he accepts that he would face formidable difficulties in making good this challenge so as to obtain any relief in this Tribunal, not least the fact that the authorities suggest that we have no jurisdiction to hear appeals which do not attempt to disturb an order of the tribunal: see Harrod v Minister of Defence [1981] ICR 8, approved by the Court of Appeal in Riniker v University College, London [2001] EWCA Civ 597.
15. Accordingly, we dismiss these three grounds of the cross appeal on withdrawal by the respondent. We consider the remaining ground at the end of this judgment.

The hearing before the Employment tribunal

16. The tribunal heard and considered a considerable amount of evidence. Altogether the evidence and argument before the tribunal took several weeks. The decision of the tribunal is perforce extremely lengthy. It falls into eight sections consisting of introduction; issues; witness assessments; findings of fact; the law; submission and approach to the issues; findings on the issues; and finally delivery of the decision and further directions. As this decision will make clear, we consider that the tribunal has made a number of legal errors in the way it has approached its task of determining whether or not there was discrimination, but we nonetheless pay tribute to the obvious care with which the employment tribunal assessed the witnesses, made its primary findings of fact, and sought to structure its decision in this difficult and complex matter. We have also had the benefit of considering certain illuminating authorities, and in particular the decision of the House of Lords in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 516; [2003] UKHL 11 which were not available to the tribunal since they were decided after the tribunal reached its decision.

The alleged areas of discrimination.

17. In the original originating application lodged by Dr. Bahl, she identified six issues in respect of which there was alleged unlawful race and sex discrimination. They were as follows:

"Whether the respondents unlawfully discriminated against Kamlesh Bahl contrary to section 1(1)(a) and 11 of the Race Relations Act and/or section 1(1)(a) and 12 of the Sex Discrimination Act by:

(i) the way in which the respondents dealt with the complaints against Kamlesh Bahl in breach of the Law Society's Dignity at Work Policy as set out at paragraph 7 of the Originating Application, namely:

(a) no thorough and immediate investigation of the complaints. Kamlesh Bahl was not informed of the details of the complaints for some time;

(b) confidentiality was maintained in the case of the complainants, but not Kamlesh Bal, nor in relation to the complaints or the procedure followed to investigate them; and

(c) those investigating (Robert Sayer, Jane Betts and Jean Johnson) were connected with the complaints. All three had a clear conflict of interest in investigating the complaints against Kamlesh Bahl.

(ii) making public the complaints against Kamlesh Bahl and the report of Lord Griffiths' findings;

(iii) failing to accord Kamlesh Bahl a right of appeal;

by breaching the requirements of natural justice and Kamlesh Bahl's right to a fair hearing by not giving Kamlesh Bahl sufficient time to

respond to the complaints made against her."

18. In addition to these six so-called 'issues' Dr. Bahl also identified thirty-one factual allegations of discrimination. These allegations were provided in response to a request by the respondents for full particulars of each and every allegation of discrimination. At a preliminary hearing for directions, Dr. Bahl had been ordered to answer this request, and she did so. It was contended before the employment tribunal that the only issues on which the tribunal could find discrimination were the original six allegations of discrimination. The respondents before the tribunal argued that none of the other thirty-one allegations could constitute an independent ground for finding discrimination, although they accepted that they were relevant evidentially when the tribunal considered the six principal issues. The tribunal considered certain authorities and rejected this contention. They concluded that they should consider whether or not there was unlawful discrimination in relation to each of these thirty-one factual allegations as well as in relation to the original 'issues'. That decision is not the subject of any appeal before us.

19. We will not set out the thirty-one detailed factual matters in respect of which allegations of discrimination were made, but we append them as an appendix to this judgment. (In fact there are various sub-grounds even in these thirty-one and we are told that in total there were over seventy separate specific complaints.) Suffice it to say that it has been alleged that virtually every act or decision taken in connection with the making and hearing of the complaints of bullying has been identified by Dr. Bahl. Some of the allegations were little short of ludicrous. For example, Dr. Bahl contended that she was discriminated against by the Law Society by being given insufficient time to prepare her response to the bullying complaints. This was despite the fact that the timetable had been set by Lord Griffiths and had been agreed by all counsel, including Dr. Bahl's own counsel. Similarly, she alleged unlawful discrimination arising out of the fact that the report was published, even though she had agreed that it should be; and also that she could not appeal the findings of Lord Griffiths notwithstanding that it had been accepted in advance that she would only be allowed to do so if the findings were alleged to be perverse. It assisted neither her case nor the tribunal's task for allegations to be showered on the appellants in such an undiscriminating way.

18. The tribunal concluded that out of all the various complaints made against him, Robert Sayer had discriminated against Dr. Bahl on grounds of race and sex in three respects and that Jane Betts had done so in five respects. These are discussed in detail below.

The Findings of Fact

19. In order to understand the context in which these particular conclusions were reached, it is necessary to recount the chronology of events and to set out certain of the key findings of the tribunal. However, much of the material before the employment tribunal is not relevant to this appeal since we are concerned with only the small number of matters in respect of which unlawful discrimination was found to have occurred. Accordingly, we are able to give a very much more truncated version of events than did the employment tribunal in its decision. We seek to summarise the relevant material, but often using the language adopted by the tribunal so as to avoid any unintentional misrepresentation of their findings.
20. Initially Mr Sayer was very keen that Dr. Bahl should become actively involved in the affairs of the Law Society. He was committed to making certain reforms in the way the Law Society operated and he thought that she was someone who could assist him to achieve them. It was he who initially requested her to stand as Deputy Vice President in October 1996, but at that time she decided not to do so, not least because of her commitments as Chair of the EOC. However, at the Law Society conference the following year, she did agree to stand for office in 1998. She would then be Mr Sayer's deputy during his Presidential year. Robert Sayer strongly supported her candidacy; he assisted her in tactics, the writing of her manifesto, and advertising. She was duly elected as Deputy Vice President in 1998, when Robert Sayer was elected Vice President. Michael Matthews was the President. The tribunal found that the relationship between Mr Sayer and Dr. Bahl remained good until the end of August 1999. Jane Betts said in a statement she made to the special committee looking into the bullying allegations that she had also originally warmly welcomed Dr. Bahl's appointment and had high hopes of her.
21. From her appointment as Deputy Vice President in July 1998, Dr. Bahl displayed an aggressive manner and caused considerable concern to staff. Jane Betts had been appointed Secretary General of the Law Society from April 1996. On 22^nd November 1998 she sent a memorandum to the then President of the Law Society marked "personal and highly confidential". In it she said this:

"The senior managers and I are experiencing some problems in our relations with the Deputy Vice President, whose leadership style is proving to be highly authoritarian and confrontational rather than collaborative. Two members of the management team have been deeply upset by her style, others have developed a coping mechanism of 'giving as good as you get' and the rest are beginning to disengage. Until last week I have tried to mediate and deal with each incident individually but now the overall problem seems to be building up into something considerably more serious.

There is a growing sense of disappointment and frustration that the relationship with the putative head of the executive committee is not working better. If not dealt with promptly, the result could be to the detriment of the essential team spirit between Council members and staff that we have tried (with considerable success) to build over the past two years."

22. Mrs Betts told staff that Dr. Bahl was a strong leader and that they should put her behaviour on one side. She herself spoke to Kamlesh Bahl only once about her behaviour, taking the view that it was more appropriate for the President to do so since he was the senior office holder.
23. The then President, Michael Matthews, did subsequently talk to Dr. Bahl but the employment tribunal concluded, in effect, that he had been too gentle in the way in which he raised the matter. They held that he couched his warning to her in such veiled terms that he failed to communicate the strength of concern of senior staff.
24. There were then further incidents of bullying which took place in December 1998. Two were occasions where the tribunal found that Dr. Bahl was being justifiably critical of staff, but in a wholly unacceptable manner. The first was an incident involving the Head of Communications, Barbara Calahane, which resulted in Ms Calahane telling Dr. Bahl that it was unacceptable for Dr. Bahl to shout at her or her staff. The second was a particularly confrontational attack on Russell Wallman who was one of the executive officers of the Society, being Director of Policy. The latter incident was witnessed by Robert Sayer. He said that he was "dumbstruck" by Dr. Bahl's behaviour and did not know how to deal with it, but the tribunal rejected his evidence on this point. They found that had he wanted to say something to her, he could have done so, and that the treatment of Mr Wallman, although inappropriate, reinforced the message that the reforms were not to be frustrated.
25. In January 1999, the Interim Executive Committee (IEC) was set up. This was a committee directed to implementing what were perceived to be necessary reforms. Dr. Bahl was appointed the chair of that committee.
26. On 11 March 1999 Russell Wallman wrote a memorandum to Jane Betts headed 'Dignity at Work; Deputy Vice President'. Mr Wallman had been subject to particularly aggressive bullying from Dr. Bahl. He wrote this:

"I think we need to tackle the problems caused by the behaviour towards the staff of the Deputy Vice President. I have, as you know, found her conduct towards me unacceptable on a number of occasions, and I have equal concerns about her conduct towards a number of other members of my Directorate. I know from informal conduct [sic] with colleagues that I am not the only Director who has encountered similar problems.

I think it may now be necessary for me to initiate a formal complaint under the Dignity at Work Policy, both in respect of my own position and on behalf of others in the Directorate. However, I recognise that this is a serious step. I would be grateful, therefore, for the opportunity to discuss it with you before taking matters any further."

27. Matters were made worse when at a meeting on 15 March 1999; Dr. Bahl treated Russell Wallman with what Lord Griffiths, in his report, described as 'contempt'. She made an obvious and pointed show of looking at other matters while he was presenting a paper and publicly reprimanded him at the meeting. A yet further incident occurred on 29 March when Dr. Bahl upbraided Russell Wallman in what he felt to be a humiliating and unacceptable way. On 6^th April 1999, which was after the Easter holiday, Russell Wallman told Jane Betts that he could not cope with Dr. Bahl. Mrs Betts was concerned that he was exhibiting signs of stress. He was asked at a later meeting on 14 April whether he would feel able to discuss his concerns with Dr. Bahl, but said that he would find it too traumatic. He raised the possibility again of making a formal complaint under the Dignity Policy. The employment tribunal record that Jane Betts was trying to find a low-key solution, which would not damage him, yet would remove the risk of any formal complaint. She felt that such a complaint would be damaging to both the Law Society and all those involved. Russell Wallman said that he would ponder on whether or not he wished to make a formal complaint.
28. The stress on Russell Wallman led to his being absent from work through illness during May 1999. As a consequence the President, at this time Michael Matthews, decided together with Jane Betts and Jean Johnson that Mr Wallman should work entirely on the Indemnity Fund. The purpose behind this was to place him out of direct contact with Dr. Bahl. However, Russell Wallman wanted it to be made clear that he was being seconded to this work only as a consequence of his treatment by Dr. Bahl, and he threatened to make a formal complaint unless this was done.
29. Jean Johnson was concerned both by the extent of Mr Wallman's anger and his threat to bring a formal complaint. She suggested to Mrs Betts that they should talk informally with Dr. Bahl, and they did so. They told her that Mr Wallman was considering making a formal complaint under the Dignity Policy, that he did not feel able to talk to Kamlesh Bahl, and felt humiliated by her. Dr. Bahl's reaction was to go on the offensive: she insisted that the stress was caused by Mr Wallman's own inadequacies and she admonished Mrs Betts in the strongest terms for failing to keep notes about Mr Wallman's actions and statements. Such was the manner of her criticism of Mrs Betts that Ms Johnson, who was subordinate to Mrs Betts in the staff hierarchy, felt in necessary to tell Dr. Bahl that she did not think it appropriate for her to reprimand Mrs Betts in her presence.
30. Finally, Mr Wallman was, after various discussions and negotiations, seconded to the indemnity work. By a letter dated 25^th June 1999, it was confirmed that the secondment was to continue until December 1999. Thereafter he was to return to his responsibilities as Director of Policy from the beginning of 2000.
31. In July Robert Sayer was elected President and Kamlesh Bahl Vice President, with Michael Napier Deputy Vice President. Also in that month Ms Calahane told Jean Johnson that she was considering leaving the Law Society because of the pressure and distress resulting from working close to Dr. Bahl.
32. In August 1999, Dr. Bahl again treated two members of the staff, Jonathan Goldsmith and Anne Frazer, in what Lord Griffiths found to be a humiliating and unacceptable manner. It arose out of an incident when the three of them were in Atlanta together on business. Ms Frazer raised the matter with Robert Sayer who by then was the President. He said that she told him she was too frightened to make a formal complaint, and she felt that it would rebound on her if she were to do so, and make matters worse. Mr Sayer said there was not much that he could do but he would try to speak to Dr. Bahl on an anonymous basis.
33. The following day he informed Michael Napier, the Deputy Vice President, about this informal complaint from Ms Frazer. On 22 August he had a conversation with Mrs Betts who said that both she and the former President, Michael Mathews, had sought to talk to Dr. Bahl but without success. Mrs Betts suggested that Mr Sayer and Mr Napier, as Dr. Bahl's fellow office holders, should try speaking to her. Mr Napier did so on 24 August 1999. He told Dr. Bahl bluntly that some staff were afraid of her and the staff perception of her ranged 'between apprehension and dread of attending meetings when she was present'. She admitted that there was a perceived problem with her style but indicated that there had to be a price for change.
34. Mr Sayer had a meeting on 26 August with Dr. Bahl. He wanted Michael Napier to be present at the outset but Dr. Bahl objected, although Mr Napier did join the meeting once it was under way. Mr Sayer gave her a warning about her conduct but did not identify any particular incident or any particular member of staff. He told her that she had a frightening manner and that there was a risk of a formal complaint which would be extremely damaging to her and to the Law Society. Kamlesh Bahl was defensive and angry. She wanted to know who had complained about her and what the details were. The employment tribunal found that Dr. Bahl was told on that occasion that there was a risk of a formal complaint being made against her. Both Mr Sayer and Mr Napier told her that individuals were too frightened to say anything. Mr Napier gave an example of an occasion when he personally had been roughly treated by her at a public meeting.
35. Until this meeting the relationship between Mr Sayer and Dr. Bahl had been cordial but the employment tribunal found that thereafter it deteriorated, and became quite cold. In the words of the tribunal, "she tended to ignore him and he made no real attempts to speak to her."
36. On 27 August Dr. Bahl sent an email to Robert Sayer and Michael Napier but made no reference to the concerns that they had expressed about treatment of staff. Mr Sayer responded by an email of the 30 August. The employment tribunal considered this email to be of some significance, and we set out part of it:

"As I said last Thursday, I don't want to fall out with you. I had an issue raised with me by a member of staff about the way you had treated them. Fortunately they did not want to make it official provided I raised it with you. If I had not and an official complaint had been made by a member of staff about the way you treated them it would have caused embarrassment not only to you but to the Society and I would have been at fault. I hope you will accept that. If so then I suggest we put it behind us….

We have both got more important things to spend our energies on. If you support me on what I want to achieve I will support you. That offer is on the table….

So do we have peace, will you work with me and put last week behind us or not? If the answer is yes then please accept that we both have different strengths. You can get the beurocracy [sic] under control, I have an almost infinite range of ideas, some good some impracticable but I can throw them out like a machine gun. Let's work together to set up some dedicated teams to try them out. If half of them work it would transform the Society within ten months. If you don't want to be part of that I'll do it on my own. I prefer you onboard but it has to be on the basis that we have to adopt a more active and imaginative approach then we have at present."

37. The tribunal made findings in relation to this email on which it placed some emphasis. It said this:

"This was an important email in our judgment, hence the length of the quotation. It had all the hallmarks of an ultimatum. We consider that Robert Sayer was content to tolerate Kamlesh Bahl's behaviour until the point where the staff complaints about it impinged directly upon him and his objectives for his presidency. His message in the email was clear. Unless Kamlesh Bahl reined in or heeded his instruction (as Michael Napier recorded in his notes of the meeting) to: "take note and ease off", she would be cut loose and left to her own devices. Contrary to his assertion, we find this was anything but a conciliatory email. The cooling off between them that followed was due to his belief, well founded as events transpired, that Kamlesh Bahl could damage both the Law Society and his position as President by her behaviour."

38. On 8 September, Dr. Bahl replied to the email. Essentially she expressed the view that the complaint by the member of staff should have been investigated by line management, preferably Mrs Betts. As the tribunal pointed out, "she did not appear to have any concept of the need which may sometimes arise for such matters to be dealt with at first in an informal and anonymous way." Mr Sayer said that he did not read this email as a result of an oversight. The tribunal accepted that he had indeed not read it but that this was because he had by then "set his face against her" and had deliberately chosen not to pay any attention to it.
39. On 28 September, Ms Frazer again went to see Mr Sayer. She told him that she was desperately unhappy and was thinking of leaving the Law Society. She had been verbally abused again by Dr. Bahl. Mr Sayer said that he had already raised the matter with Dr. Bahl unofficially and that there was little more that he could do unless she raised the matter officially or allowed him to mention her by name. He suggested she might contact the Union or Human Resources, but he did not encourage her directly to make a complaint. Ann Frazer was still worried as to what Dr. Bahl would do if she were to complain.
40. On 14 October 1999, the Council resolved that Dr. Bahl should be chair of the new IEC. This created some concerns in particular for Mr Wallman. He had anticipated that the chair would be Mr Napier. He had no difficulty working with Mr Napier and felt that he could cope with Dr. Bahl provided that it was simply in her role as Vice President. The bullying treatment of Ms Frazer continued. Two incidents are referred to by the tribunal,, one on the 26^th October and one on the 5^th December 1999. Both were also considered by Lord Griffiths as part of his investigations.
41. On 10 November 1999, Russell Wallman agreed to continue working on indemnity work until 1 March 2000. On the same day Mel James, the Branch Deputy Chair of the MSF, sent an email to certain officers in the Human Resources department expressing concern about Ms Frazer's situation and the level of stress she was under. It was alleged that the treatment of Ms Frazer was incompatible with the Law Society's Dignity Policy. Although the officer held responsible was not identified by name, it was clearly understood that Dr. Bahl was the person to which reference was made.
42. Ms Frazer was summoned to a meeting with Dr. Bahl on 10 November. She was in tears at the prospect of going and was rebuked again at the meeting about her work. (This perhaps explains why she was so reluctant all along to identity Dr. Bahl by name.) Ms Frazer went to see Mr Sayer on 11 November and she told him about her meeting with Dr. Bahl the previous day. Mr Sayer said that there was nothing he could do and he suggested that she see her Union representative. In fact she was already in discussion with the Union and the Human Resources Department.
43. The employment tribunal concluded that his mentioning of the Union and his reluctance to speak again to Dr. Bahl about these matters amounted "at least to the tacit encouragement of a formal complaint." Mr Sayer told the tribunal that he thought it was pointless to go back to Dr. Bahl and that there was nothing more he could do. He also commented that he did not want to make his working relationship with Dr. Bahl any worse and that he never envisaged a formal complaint. The tribunal rejected this evidence and found that he must have known that a formal complaint might be made.
44. Meanwhile, Ms Frazer went to see the Union representative and members of the Human Resources Department. She was still extremely upset and afraid to be identified as the person complaining about Dr. Bahl. She was plainly not able to confront Dr. Bahl herself. It was suggested that Ms Johnson might approach Dr. Bahl and identify specific incidents of improper behaviour, but on an anonymous basis. However, the incidents were so specific that there was a fear, no doubt correct, that anonymity would not be preserved in that way.
45. On 15 November, at a routine Joint Consultative meeting, Natalie Breeze, who was the MSF representative at the Law Society, confirmed to Jean Johnson and Jane Betts the possibility of a formal complaint being made. At that meeting Jane Betts and Jean Johnson discussed the need for the Law Society to have legal advice so that they would be prepared if and when a complaint materialised.
46. During the 11 and 22 November Natalie Breeze and Mel James, both MSF officers, had a number of conversations with, amongst others, Anne Frazer and Russell Wallman. At that time Mel James told Jean Johnson that in fact ten other people had also contacted the Union about Dr. Bahl's bullying. On 22 November Natalie Breeze sent a memorandum to Jane Betts in which she said a number of MSF members had expressed serious concerns about the behaviour of one of the officer holders. Dr. Bahl accepted that this was a serious situation that required urgent attention. On 23 November, Mrs Betts prepared a memorandum which was designed to reassure staff that any complaint would be properly dealt with. Between the end of October and early December, thirteen different people approached the Union with complaints about Dr. Bahl. There were others, and in particular Ms Johnson and Ms Cahalane, who had also felt ill-treated by her but were not included amongst those complainants.
47. The tribunal found that Mr Sayer must have been aware of developments in this matter and it found as a fact that Robert Sayer and Jane Betts must have been discussing the question of formal complaints at least from 15 November, despite their evidence to the contrary. At a meeting on 30 November, at the Staff Matters Sub-Committee, it was agreed that the employment of Russell Wallman should be terminated. Mrs Betts and Mr Sayer agreed with that decision.
48. On 25 November Jane Betts contacted Robin Lewis, a partner of Bindmans, a firm of solicitors, to seek advice about how the Dignity Policy should be applied and implemented in circumstances where the complaints are directed against an office holder. Dr. Bahl agreed that it was reasonable for the Law Society to obtain external legal advice in this way. Bindmans advised in writing on 30 November 1999. This advice was confidential to the Law Society but in fact a number of letters from Bindmans to the Law Society were leaked anonymously to Dr. Bahl and were produced before the tribunal. It was never identified how that leakage came about. The advice was extensive and detailed. The tribunal in its decision commented upon certain sections, which they considered to be the more relevant parts of that advice. These included advice about the procedure to be adopted on receipt of the complaint, and also on the issue of separating the alleged victim and perpetrator.
49. Jane Betts sent a copy of the advice to Robert Sayer on 30 November. She proposed setting up an ad hoc panel to investigate the complaint if and when it transpired. She also proposed that Robert Sayer, as President, should suggest that Dr. Bahl should stand down while the complaint was being investigated.
50. In the beginning of December 1999, Russell Wallman indicated that he wanted to make a formal complaint. Also in December, Dr. Bahl found an opportunity to make known to other staff a mistake made by Ms Frazer. Lord Griffiths in his report concluded that it was typical of the way that Ms Frazer was being picked upon by Dr. Bahl in this period. It plainly had a significant effect on Ms Frazer who was away from the office for much of December on compassionate leave. Meanwhile, a formal complaint was being anticipated. Mrs. Betts sought Bindmans' advice on the letter that should be written to Dr. Bahl, and also on the procedural proposals which might be made to her. In that advice Mr Lewis of Bindmans also suggested the draft for a letter of reassurance to be provided to the MSF, although the tribunal found that he was concerned that if such reassurance was provided prior to a formal complaint being received, it could be perceived as encouraging complaints.
51. On 9 December 1999 Mrs Betts wrote a memorandum to MSF offering certain assurances to MSF and containing what was described as the President's "personal assurance" that staff would be allowed to speak freely and openly and "would suffer no adverse career consequences at any stage or in any way thereafter."
52. The tribunal concluded, contrary to Mr Sayer's evidence, that the matter would have been discussed in detail prior to this letter being sent. The tribunal was very critical of this reassurance being given prior to any formal complaint being made. It concluded that the reassurance was at best reckless and at worst an indication that Mr Sayer and Mrs Betts were prepared to support any act which might harm Dr. Bahl's position in the Law Society. The tribunal commented as follows:

"We cannot accept that any reasonably competent senior employee could hold out such reassurance nor that a competent solicitor holding the officer of President of the Law Society would lend himself to it, without having clearly assessed and weighed its implications. They did not do so recklessly."

53. The formal complaint was presented on 9 December. It consisted of a two-page memorandum from MSF addressed to Jane Betts as Secretary General. The accusation was of persistent bullying and intimidation. It was pointed out in the memorandum that many staff remained unwilling to make formal complaints because of the fear of repercussions. Others submitted complaints but had withdrawn them for the same reason. The MSF sought "the highest assurances that steps would be taken to prevent any direct contact between Dr. Bahl and the complainant." Dr. Bahl accepted that this was a serious complaint and that it had to be investigated. She also accepted that it was necessary for the Law Society to set up a mechanism designed to ensure that other staff would have the confidence to come forward and bring their complaints.
54. Following the receipt of this complaint, Jane Betts, Robert Sayer and Jean Johnson (at the end of a telephone) held a meeting on 9 December. Mrs Betts recapped the legal advice she had obtained. They considered that it was their role under the Dignity Policy to receive the complaint formally and if it required investigation, in the sense that there was a case to answer, to pass it on to Dr. Bahl promptly. They took the view that it was a complaint that required investigation. The tribunal concluded that in reaching that decision they failed to heed the advice of Robin Lewis from Bindmans that they should not be involved if they were connected with the allegation in any way. The tribunal considered that each was connected with the complaint. Mr Sayer was a witness to part of the treatment of Russell Wallman by Dr. Bahl which was the subject of the complaint, and Mrs Betts and Ms Johnson had both been involved in discussions with Russell Wallman arising out of his treatment by Dr. Bahl.
55. On 9 December, following that meeting, Mrs Betts handed a letter to Dr. Bahl at a meeting at which Robert Sayer was also present. It was in terms that had been approved by Bindmans. It invited Dr. Bahl's comments on various proposals for handling the complaint. It also invited her to stand down from the office of Vice President until the 28 January.
56. On 10 December Robert Sayer sought advice from three past Presidents as to how to proceed with the complaint. This led to his consulting the Master of the Rolls who expressed the hope that an agreed procedure could be established to deal with it, and to agree what involvement Dr. Bahl might have with the Law Society pending its outcome (the "separation" issue.).
57. On that date he also wrote two letters to Dr. Bahl. One contained a copy of the information which had been provided to all IEC members informing them of the complaint against Dr. Bahl. The second was a personal letter in which he urged her to absent herself from the Law Society. He indicated that if she did not do so then he would have to put the matter to Council and ask them to suspend her during the course of the investigation. He said he was reluctant to take that step but considered that he had no alternative in the light of the legal advice he had been given. He observed that the complaint had the potential to be extremely damaging both for the Law Society and all those involved. Furthermore, he told her to take her own independent legal advice and be guided by that.
58. On 13 December, Dr. Bahl and Mr Sayer held a meeting. She described it as threatening and intimidating. She had originally said in her evidence that Mr Sayer had sought to remove her physically from the building. The tribunal categorically rejected that evidence. Indeed, Dr. Bahl withdrew the implication that she had been manhandled only at the tribunal itself. After the meeting, Mr Sayer consulted Robin Lewis who advised in a form which he intended should be shown to the IEC. However, Mr Lewis advised against this advice being shown to Dr. Bahl. Shortly after the meeting, Dr. Bahl sent two letters, each dated 13 December, to Mr Sayer. In one she denied the harassment charges, and she indicated that she was declining the request to stand down from her duties pending the investigation.
59. There was a further meeting with Dr. Bahl and Mr Sayer, at which Mrs Betts and two other persons were also present, later that day. In the course of that meeting, Dr. Bahl made it plain that she would refuse to stand down voluntarily and Mr Sayer indicated that he would have to refer the matter to Council in accordance with his legal advice. Dr. Bahl also requested that she be shown the documents that were to be circulated to Council. She also wanted to circulate her own views. Mr Sayer responded that he would take legal advice about those matters.
60. Later that evening, Isabel de Sa, who was Secretary to the IEC, spoke to Mrs Betts about Dr. Bahl's demand for information. Ms de Sa was concerned because the volume of material requested was so significant. She also had some doubts about the propriety of some of it being disclosed. She asked Jane Betts "is this the case for the defence?". Mrs Betts says that since Isabel de Sa seemed to know what was going on, Mrs Betts told her that a complaint had been received. Mrs Betts also offered to be the channel of communication between Ms de Sa and Dr. Bahl.
61. On 15 December the IEC met to consider whether or not Dr. Bahl should be, in effect, suspended pending the hearing of the investigation. After a discussion and the consideration of various documents, some supplied by Dr. Bahl, all present agreed that Council should be asked to pass a resolution inviting Dr. Bahl to remove herself from office so that she would be separated from the potential complainants.
62. During the course of the meeting, Mrs Betts was provided with a further memorandum from the MSF with what was described as an additional complaint from Andrew Hall. (In fact on inspection it is plain that it was no more than an indication that he would be willing to file a complaint in support of Mr Wallman's complaint.) Mr Hall had been Director of Corporate Management until the termination of his employment on 8^th October 1999. Effectively he was contending that he had been treated in a similar way to Mr Russell Wallman. There was evidence before the tribunal that this information was important in convincing the meeting that action to deal with the matter was essential. The tribunal expressed the view that the complaint was not valid under the Dignity Policy since Mr Hall was no longer an employee. They also concluded that Mrs Betts probably recognised this fact but did not inform the meeting about it, nor did she inform them about the fact that this particular complaint had not been through the panel procedure.
63. The Council meeting was held later that day. Robert Sayer announced that the confidential business would be taken first. At that stage Dr. Bahl was not present but she came into the meeting some five or ten minutes later before any discussion had taken place. Various documents were placed before the Council. During the discussion one of the members, David Mackintosh, mentioned that there were "up to seventeen complainants". The tribunal said that the figure had been given to him by Mr Sayer and that it was wrong. (In fact we were told that the evidence showed that this accurately reflected the information which the MSF had provided.). A question was raised as to whether Dr. Bahl had been the subject of complaints when at the EOC. She denied, falsely in fact, that she had been.
64. The meeting was adjourned without any resolution being passed in the hope of securing agreement through conciliation. Subsequently this bore fruit and agreement was reached, both as to the form of the inquiry and the measures for ensuring that Dr. Bahl would be separated from the complainants. These were reported to the Council at its meeting on 20 January 2000.
65. Meanwhile, Mrs Betts had been taking certain steps in relation to these complaints. On 14^th December she attended a dinner were she had a discussion with Lord Hunt. He was a government minister who had appointed Dr. Bahl as Chair of the EOC. He had been favourably impressed by her. Mrs Betts informed Lord Hunt about the complaints of bullying that had been received and referred to the background of serious bullying when Dr. Bahl was Chair of the EOC. He responded that he had never heard of such allegations. Mrs Betts also said that she was working closely with the trade unions who had accumulated a considerable amount of evidence about such bullying at the EOC. She also informed Lord Hunt that she had persuaded Russell Wallman to pursue his complaint although he had been reluctant to do so, and that she was going to persuade others also. The tribunal concluded that her comments showed the extent to which she was working hand-in-glove with the Union in seeking to ensure these formal complaints were brought forward against Dr. Bahl.
66. On the 20 December 1999, Robert Sayer, Jane Betts and David Mackintosh held a meeting and concluded that Mrs Betts should instruct Robin Lewis to make enquiries of the Union at the EOC in order to find out whether complaints had been made against Dr. Bahl in her capacity as Chair of the EOC. Dr. Bahl had denied that such complaints had been made. Mrs Betts in her evidence to the tribunal suggested that she had intended Mr Lewis to contact the EOC and not the trade union branch but that it was Mr Lewis who had decided to contact the Union rather than the EOC itself. The tribunal rejected that evidence. There was a reply on 23 December, which confirmed that formal complaints had in fact been made by EOC staff, specifically alleging bullying and harassment. It was also confirmed that Dr. Bahl was aware that the complaints had been made.
67. On 6 January, Mrs Betts and Dr. Bahl were due to have one of their regular weekly meetings. They held these together with Isabel De Sa. She was Secretary to the IEC. The meeting did not start at the appointed time because Mrs Betts thought that Dr. Bahl was not ready at that stage; accordingly she commenced another meeting and was not available when Dr. Bahl wished to start the meeting. Dr. Bahl was angry about that and re-wrote the minutes of the meeting so that they were critical of Mrs Betts. What she said was this:

"Jane Betts joined the meeting 1.5 hours after the schedule time."

68. The tribunal commented that the statement was literally true but not a fair record of what had transpired. The reference in the minute upset Mrs Betts and, as the tribunal noted, her stress was apparent during the tribunal hearing. The issue of Mrs Betts "lateness" was raised at the next IEC. Again the tribunal concluded that it was unfair criticism directed merely to undermine Mrs Betts.
69. By this time, Mrs Betts had herself determined to make a complaint under the Dignity Policy on behalf of all staff. She sent to the committee what the tribunal described as a substantial analysis of the matters. The tribunal commented adversely at some of what it described as "emotive language" and "graphic metaphor". In particular, it was critical of the following phrases:

"Jane Betts sent a statement of the Special Committee. She represented that it was a complaint "on behalf of all staff" and offered to act as a witness at the inquiry. It was a substantial analysis of the matters entitled "Complaints against Kamlesh Bahl – discussion points". Bearing in mind the history of the matter and the attempts made to raise issues of behaviour with Kamlesh Bahl it was appropriate for Jane Betts to deal with the issues extensively. However the use of emotive language, and graphic metaphor gave her document the flavour of a personal attack on Kamlesh Bahl."

The tribunal then set out certain phrases which it subsequently relied upon as evidence of race and sex discrimination. We deal with these later.

70. The tribunal concluded that the document gave the clear impression that Jane Betts wished Kamlesh Bahl to be removed from office. Indeed, Mrs Betts had concluded her analysis by commenting that "if Kamlesh Bahl remains on the premises she will by her presence and by her actions, depress, demotivate and destroy."
71. On 26 January 2000, which was following the agreed separation measures which had been communicated to staff five days earlier, there was a tannoy announcement in the Law Society inviting all the members of staff to attend a MSF branch meeting at 3 o'clock to discuss Dignity at Work. All the staff had already been informed of the meeting and the reason for it by e-mails. Dr. Bahl claimed that her name had been specifically mentioned in connection with the meeting, but the tribunal expressly rejected that. The tribunal concluded, however, that everybody would appreciate that this meeting concerned the complaints against Dr. Bahl, even though she was not referred to by name, because of the reference to "dignity at work." It said this:

"…we found it …inconceivable that there could have been any member of the Law Society staff who, upon hearing that announcement, did not immediately realise that the meeting concerned the complaints against Kamlesh Bahl. To that extend the tannoy message was a clear reference to her and would have been embarrassing and humiliating."

72. It is clear that Mrs Betts had given permission for the MSF to invite all staff, both union and non-union members alike, to this meeting, even although it was in working hours. Mrs Betts in her evidence said that she thought that she ought not to refuse such a request. There was plainly considerable concern about the issue amongst staff, as the Union noted. The tribunal held that the purpose of inviting all staff to such a meeting must have included to facilitate the bringing forward of complaints. The tribunal was by implication critical of that being a legitimate motive. The tribunal also made the assumption that not only did Mrs Betts allow the union to use the tannoy, but that she had approved the very terms in which the announcement was couched. It concluded that her motive in allowing this matter to be advertised was to say the least "questionable". (In fact, as we indicate below, it was incorrect in its assumption since there was no evidence at all that she had either permitted the announcement to be made, or that she had agreed to, or even been aware of, its content in advance.)
73. Lord Griffiths' inquiry commenced on 21 February 2000. The hearing was concluded on 25 February. As we have indicated, Lord Griffiths upheld the complaints of bullying.
74. The tribunal rightly commented that the Lord Griffiths inquiry was addressing a wholly different issue than that with which it was concerned. But it did identify certain general points arising out of that inquiry including the fact that at no stage was it ever suggested that the defendants had acted unlawfully on grounds of race or sex; that Dr. Bahl never accepted responsibility for the plain and obvious distress that had been caused to some of his members of staff; and nor had she offered them any apology. The tribunal also placed significance on the language used by Jane Betts before the inquiry. In describing an incident in which Dr. Bahl had upbraided Mr Wallman, she observed that it was as if a culprit was to be found "and hands were going to be chopped off". The tribunal held that the use of this language had clear racial overtones.

The Law

The statutory scheme.

75. Kamlesh Bahl's claims against Robert Sayer and Jane Betts were claims of direct race and sex discrimination. It was alleged that as a member of a professional organisation within the scope of section 12 of the Sex Discrimination Act 1975 ("SDA") and section 11 of the Race Relations Act 1976 ("RRA"), she was subjected to less favourable treatment on race and/or gender grounds than would have been had she been white or male, and that the treatment was to her "detriment" within the meaning of section 12(3)(c) of the SDA and section 11(3)(c) of the RRA. It is common ground that the liability of the Law Society is vicarious; it is liable for any acts of Mr Sayer and Mrs Betts because they were respectively an agent and employee of the Law Society: see sections 41 and 32 of the SDA and RRA respectively.

Section 1(1)(a) of the RRA defines direct race discrimination as follows:

"A person discriminates against another in any circumstances relevant for the purposes 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."

"Racial grounds" are defined at section 3(1) of the RRA as including "colour, race, nationality or ethnic or national origins."

76. Section 3(4) of the RRA provides:

"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 parallel provisions in the SDA, concerning sex discrimination, are to be found in s1(1)(a) and s5(3).

77. Therefore, in order to establish unlawful direct race and/or sex discrimination before the Tribunal, the burden was on Kamlesh Bahl to prove, in relation to each of the allegations made against Robert Sayer and Jane Betts, each of the following:

1. That Kamlesh Bahl had been treated less favourably by Robert Sayer and Jane Betts than a white person and/or a man was or would have been treated in the same or materially similar circumstances;

2. That the less favourable treatment had been afforded to Kamlesh Bahl on racial and/ or gender grounds; and

3. That through such treatment, Kamlesh Bahl had been subjected to a detriment.

Using the nomenclature of Lord Nicholls in the case of Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] IRLR 285, we will refer to the first issue as the "less favourable treatment" issue, and the second as the "reason why" issue.

Direct discrimination: undisputed principles.

78. There are certain well-established principles of this law which, whilst not controversial or in dispute in this case, have been relied upon and need to be summarised.
79. First, the onus lies on the claimant to establish discrimination in accordance with the normal standard of proof.
80. Second, the discrimination need not be conscious; sometimes a person may discriminate on these grounds as a result of inbuilt and unrecognised prejudice of which he or she is unaware.
81. Third, the discriminatory reason for the conduct need not be the sole or even the principal reason for the discrimination; it is enough that it is a contributing cause in the sense of a "significant influence": see Lord Nicholls in Nagarajan v London Regional Transport [2001] 1 AC 501 at 513.
82. Fourth, in determining whether there has been direct discrimination, it is necessary in all save the most obvious cases for the tribunal to discover what was in the minds of the alleged discriminator. Since there will generally be no direct evidence on this point, the tribunal will have to make appropriate inferences from the primary facts which it finds. These points are succinctly made in the following passage of the judgment of Lord Nicholls in Nagarajan (page 511A-B):

"Section 2 should be read in the context of section 1. Section 1(1)(a) is concerned with direct discrimination, to use the accepted terminology. To be within section 1(1)(a) the less favourable treatment must be on racial grounds. Thus, in every case it is necessary to inquire why the complainant received less favourable treatment. This is the crucial question. Was it on grounds of race? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job? Save in the obvious cases, answering the crucial question will call for some consideration of the mental process of the alleged discriminator. Treatment, favourable or unfavourable, is a consequence which follows from a decision. Direct evidence of a decision to discriminate on racial grounds will seldom be forthcoming. Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances."

Similar observations were made by Lord Browne Wilkinson (p.508D). The observations of Lord Nicholls were adopted and followed by Lord Rodger in Shamoon v Chief Constable of the RUC [2003] ICR 337 at para134.

83. Fifth, in deciding whether there is discrimination, the tribunal must consider the totality of the facts; see the observations of Mummery J giving the judgment of the EAT in Qureshi v Victoria University of Manchester [2001] ICR 863, which were followed by the Court of Appeal in Anya v University of Oxford [2002] ICR [2001] EWCA Civ 405. Where there is a finding of less favourable treatment, a tribunal may infer that discrimination was on the proscribed grounds if there is no explanation for the treatment or if the explanation proffered is rejected: see the comments of Neill LJ in King v Great Britain-China Centre [1992] ICR 516, approved by the House of Lords in Glasgow City Council v Zafar [1998] ICR 12 (Neill LJ in fact said that the inference may be made where the explanation was inadequate or unsatisfactory, but it is in our view clear, and in accordance with the principle in Zafar, which we consider below, that he was envisaging an explanation which was inadequate or unsatisfactory in the sense that the tribunal did not accept it as genuine, not in the sense that it was a genuine, non-racial explanation, albeit that it was unreasonable because it resulted in unreasonable treatment.)
84. Sixth, it is clear from the structure of the statutory provisions that the need to identify a detriment is in addition to finding less favourable treatment on the prohibited ground. In many cases the detriment will be obvious, such as where someone alleges that he or she has been refused a job or promotion for unlawfully discriminatory reasons. Indeed, in most cases the fact that there is less favourable treatment will strongly suggest that there is a detriment. However, this does not necessarily follow, and indeed the more a course of conduct is broken down into a series of discrete elements (as in this case), each of which is alleged to be discriminatory, the more likely it is that a tribunal will properly be able to conclude that certain elements of the overall conduct, even if discriminatory, are so minor or insignificant as not to give rise to any detriment.
85. The test for establishing detriment is in general easily met. It was defined by Lord Hope in the Shamoon case as follows (para 35):

"As [Lord Brightman] put it in Ministry of Defence v Jeremiah [1980] QB 87, 104B, one must take all the circumstances into account. This is a test of materiality. Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment? An unjustified sense of grievance cannot amount to "detriment": Barclays Bank plc v Kapur and others (No 2) [1995] IRLR 87. But, contrary to the view that was expressed in Lord Chancellor v Coker and Osamor [2001] IRLR 116 on which the Court of Appeal relied, it is not necessary to demonstrate some physical or economic consequence."

86. Lord Scott in the same case emphasised that the question whether or not a detriment exists must be looked at from the victim's point of view. He added that "while an unjustified sense of grievance about an allegedly discriminatory decision cannot constitute "detriment", a justified and reasonable sense of grievance about the decision may well do so." (para 105).
87. It is, however, important to appreciate that whilst less favourable treatment will usually, albeit not inevitably, constitute a detriment, the converse is far from true. There will be many acts which an employer or his servant or agent may take towards someone which will be a detriment even although it is not discriminatory in any way. Indeed, it is plain that a detriment in the sense of adverse treatment can result even from wholly reasonable and appropriate conduct of the employer. It follows that merely to identify detrimental conduct tells us nothing at all about whether it has resulted from discriminatory conduct.
88. Finally, a tribunal should not make findings of unlawful discrimination in respect of any matter which was not in the originating application or the subject of subsequent amendment. It is not for the tribunal to extend the range of complaints of its own motion: see Chapman v Simon [1994] IRLR 124. In the course of giving judgment Peter Gibson LJ observed (at para. 42):

"Under s.54 of the 1976 Act, the complainant is entitled to complain to the Tribunal that a person has committed an unlawful act of discrimination, but it is the act of which complaint is made and no other that the Tribunal must consider and rule upon. If it finds that the complaint is well founded, the remedies which it can give the complaint under s.56 (1) of the 1976 Act are specifically directed to the act to which the complaint relates. If the act of which complaint is made is found to be not proven, it is not for the Tribunal to find another act of racial discrimination of which complaint has not been made to give a remedy in respect of that other act."

Balcombe LJ made observations to like effect: see para 33.

Two disputed issues.

89. The basic concepts inherent in the concept of unlawful discrimination are not difficult to state; the difficulties which tribunals regularly have is with their application. It is trite but true that the starting point of all tribunals is that they must remember that they are concerned with rooting out certain forms of discriminatory treatment. If they forget that fundamental fact, then they are likely to slip into error. The point was made by Lord Scott in the case of MacDonald v Advocate General for Scotland [2003] UKHL 34, when he said this:

"These two appeals demonstrate the importance, in my opinion, when dealing with complaints under the 1975 Act and the other anti-discrimination Acts, of keeping in mind that they are intended to combat discrimination. They are anti-discrimination statutes. Absent discrimination, objectionable conduct by employers must be countered by other means than complaints under these Acts."

90. That is the overriding principle which tribunals must apply. It is highly pertinent to one of the two areas in this case where there is a dispute about the proper approach to the question of identifying discrimination. This concerns the extent to which, if at all, a tribunal is entitled to infer discrimination from unreasonable conduct. The second principle area of contention between the parties concerns the relationship between the "less favourable treatment" issue and the "reason why" issue. We will discuss these in turn.

Unreasonable treatment and discrimination.

91. There is clear authority for the proposition that a tribunal is not entitled to draw an inference of discrimination from the mere fact that the employer has treated the employee unreasonably. This is the important decision of the House of Lords in Glasgow City Council v Zafar [1998] ICR 120. In that case the Council dismissed an Asian social worker. He had allegedly committed acts of sexual harassment against both clients and other employees. The tribunal held that the manner of his dismissal was wholly unreasonable. The employers had failed to apply proper procedures and there had been unacceptable delays. The employment tribunal found that Mr Zafar had been unfairly dismissed but also that the dismissal was on racial grounds. The basis of this finding was that the procedures fell far below those which should have been adopted by a reasonable employer and therefore constituted less favourable treatment. The Council challenged the finding of unlawful discrimination. The tribunal's decision was upheld by the Employment Appeal Tribunal but the Council's appeal to the Inner House of the Court of Session succeeded, and the House of Lords dismissed the employee's appeal. Lord Browne Wilkinson delivered an Opinion with which Lords Slynn, Hope, Lloyd and Clyde concurred. He said this (pages124A-E):

"The reasoning of the industrial tribunal on this issue is wholly defective. The Act of 1976 requires it to be shown that the complainant has been treated by the person against whom the discrimination is alleged less favourably than that person treats or would have treated another. In deciding that issue, the conduct of the hypothetical reasonable employer is irrelevant. The alleged discriminator may or may not be a reasonable employer. If he is not a reasonable employer he might well have treated another employee in just the same unsatisfactory way as he treated the complainant in which case he would not have treated the complainant "less favourably" for the purposes of the Act of 1976. The fact that, for the purposes of the law of unfair dismissal, an employer has acted unreasonably casts no light whatsoever on the question whether he has treated the employee "less favourably" for the purposes of the Act of 1976. I cannot improve on the reasoning of Lord Morison, delivering the opinion of the court, who expressed the position as follows, 1997 S.L.T. 281, 284:

"The requirement necessary to establish less favourable treatment which is laid down by section 1(1) of the Act of 1976 is not one of less favourable treatment than that which would have been accorded by a reasonable employer in the same circumstances, but of less favourable treatment than that which had been or would have been accorded by the same employer in the same circumstances. It cannot be inferred, let alone presumed, only from the fact than an employer has acted unreasonably towards one employee, that he would have acted reasonably if he had been dealing with another in the same circumstances."

92. The reason for this principle is easy to understand. Employers often act unreasonably, as the volume of unfair dismissal cases demonstrates. Indeed, it is the human condition that we all at times act foolishly, inconsiderately, unsympathetically and selfishly and in other ways which we regret with hindsight. It is however a wholly unacceptable leap to conclude that whenever the victim of such conduct is black or a woman then it is legitimate to infer that our unreasonable treatment was because the person was black or a woman. All unlawful discriminatory treatment is unreasonable, but not all unreasonable treatment is discriminatory, and it is not shown to be so merely because the victim is either a woman or of a minority race or colour. In order to establish unlawful discrimination, it is necessary to show that the particular employer's reason for acting was one of the proscribed grounds. Simply to say that the conduct was unreasonable tells us nothing about the grounds for acting in that way. The fact that the victim is black or a woman does no more than raise the possibility that the employer could have been influenced by unlawful discriminatory considerations. Absent some independent evidence supporting the conclusion that this was indeed the reason, no finding of discrimination can possibly be made. The inference cannot be drawn from the fact that other employers sometimes discriminate in such circumstances; it cannot be inferred that A discriminates merely because B, C and D have been known to do so in similar circumstances. That is a plainly deficient basis for inferring discrimination. It would be wholly unjust to make a finding of such serious import on such a flawed basis. Nor does it help to say that it is a finding which is open to a tribunal but which it is not obliged to make. It is unjustifiable to make it in any circumstances. Two Court of Appeal decisions, Marks and Spencer plc v Martins [1998] ICR 1005 and Effa v Alexandra Healthcare NHS Trust (unrep. CA, 5 November 1999) provide examples of tribunals having confused unreasonable with discriminatory treatment.
93. Mr de Mello submitted that the analysis in Zafar should now be read together with certain comments of Sedley LJ in Anya v University of Oxford, a case to which we have made reference above. In that case Dr. Anya was a black Nigerian academic who alleged that he had been discriminated against on grounds of race when he applied for the post as a postdoctoral research assistant. The employment tribunal found that there was no less favourable treatment and the Employment Appeal Tribunal dismissed the employee's appeal. But the Court of Appeal upheld his appeal on the grounds that the tribunal had failed to make relevant findings of fact which it was obliged to make before reaching its determination. We will return to the significance of that observation below. In the course of giving his judgment, Sedley LJ said this by way of an obiter observation:

"His case was that the evidence showed two critical things. One was the preconceived hostility to him: this depended on matters of fact which it was for the industrial tribunal to ascertain or refute on the evidence placed before them. The other was a racial bias against him evidenced by such hostility: this was a matter of inference for the industrial tribunal if and in so far as it found the hostility established. Experience shows that the relationship between the two may be subtle. For example, a tribunal of fact may be readier to infer a racial motive for hostility which has been denied but which it finds established than for hostility which has been admitted but acceptably explained. The industrial tribunal in paragraph 5 of its reasons directed itself correctly in law about this, with one arguable exception: it concluded the paragraph with this remark:

"If an employer behaves unreasonably towards a black employee, it ought not to be inferred, without more, that the reason for this is attributable to the employee's colour; the employer might very well behave in a similarly unreasonable fashion to a white employee."

As Neill LJ pointed out in King, such hostility may justify an inference of racial bias if there is nothing else to explain it: whether there is such an explanation as the industrial tribunal posit here will depend not on a theoretical possibility that the employer behaves equally badly to employees of all races, but on evidence that he does."

94. It is relevant to note that no reference was made here to the ratio of the decision enunciated in Zafar (although the case was referred to for a different purpose; see paragraph 10). Mr de Mello says that these comments demonstrate that it is open to a tribunal to infer discrimination from unreasonable treatment, at least if the employer does not show that equally unreasonable treatment would have been meted out to a white person or man, as the case may be. We recognise that read broadly the passage could indeed justify such an interpretation, not least because the tribunal's comments in Anya which Sedley LJ referred to as "arguably" incorrect seem to us, with respect, faithfully to reflect the principle established by the House of Lords in the Zafar case. However, we do not think that they could have been intended to be read in that manner. We do, however, respectfully accept that Sedley LJ was right to say that racial bias may be inferred if there is no explanation for the unreasonable behaviour. But it is not then the mere fact of unreasonable behaviour which entitles the tribunal to infer discrimination; it is not, to use the tribunal's language, unreasonable conduct "without more" but rather the fact that there is no reason advanced for it. Nor in our view can Sedley LJ be taken to be saying that the employer can only establish a proper explanation if he shows that in fact he behaves equally badly to members of all minority groups. The fact that he does so will be one way of rebutting an inference of unlawful discrimination, even if there are pointers which would otherwise justify that inference. For example, an employer may have unreasonable disciplinary procedures which are regularly applied to all staff. Plainly there is no unlawful discrimination simply because the employee subjected to them happens to be black or female. The employer has not adequately explained, in the sense of justified, his conduct, because he has applied an unreasonable disciplinary procedure; however, he has shown that whatever the reason, it is not discriminatory. No doubt the mere assertion by an employer that he would treat others in the same manifestly unreasonable way, but with no evidence that he has in fact done so, would not carry any weight with a tribunal which is minded to draw the inference on proper and sufficient grounds that the cause of the treatment has been an act of unlawful discrimination.
95. However, demonstrating the similar treatment of others of a different race or sex is clearly not the only way in which an employer who has acted unreasonably can rebut the finding of discrimination. Were it so, the employer could never do so where the situation he was dealing with was a novel one, as in this case. The inference may also be rebutted - and indeed this will, we suspect, be far more common - by the employer leading evidence of a genuine reason which is not discriminatory and which was the ground of his conduct. Employers will often have unjustified albeit genuine reasons for acting as they have. If these are accepted and show no discrimination, there is generally no basis for the inference of unlawful discrimination to be made. Even if they are not accepted, the tribunal's own findings of fact may identify an obvious reason for the treatment in issue, other than a discriminatory reason. We return to this point below.
96. Accordingly, to the extent that the tribunal found discriminatory treatment from unreasonable treatment alone, their reasoning would be flawed and the finding of discrimination could not stand. That is the clear ratio of Zafar and that decision remains unaffected by Anya.

The relevance of unreasonable treatment.

97. That is not to say that the fact that an employer has acted unreasonably is of no relevance whatsoever. The fundamental question is why the alleged discriminator acted as he did. If what he does is reasonable then the reason is likely to be non-discriminatory. In general a person has good non-discriminatory reasons for doing what is reasonable. This is not inevitably so since sometimes there is a choice between a range of reasonable conduct and it is of course logically possible the discriminator might take the less favourable option for someone who is say black or a female and the more favourable for someone who is white or male. But the tribunal would need to have very cogent evidence before inferring that someone who has acted in a reasonable way is guilty of unlawful discrimination.
98. By contrast, where the alleged discriminator acts unreasonably then a tribunal will want to know why he has acted in that way. If he gives a non-discriminatory explanation which the tribunal considers to be honestly given, then that is likely to be a full answer to any discrimination claim. It need not be, because it is possible that he is subconsciously influenced by unlawful discriminatory considerations. But again, there should be proper evidence from which such an inference can be drawn. It cannot be enough merely that the victim is a member of a minority group. This would be to commit the error identified above in connection with the Zafar case: the inference of discrimination would be based on no more than the fact that others sometimes discriminate unlawfully against minority groups.
99. The significance of the fact that the treatment is unreasonable is that a tribunal will more readily in practice reject the explanation given than it would if the treatment were reasonable. In short, it goes to credibility. If the tribunal does not accept the reason given by the alleged discriminator, it may be open to it to infer discrimination But it will depend upon why it has rejected the reason that he has given, and whether the primary facts it finds provide another and cogent explanation for the conduct. Persons who have not in fact discriminated on the proscribed grounds may nonetheless sometimes give a false reason for the behaviour. They may rightly consider, for example, that the true reason casts them in a less favourable light, perhaps because it discloses incompetence or insensitivity. If the findings of the tribunal suggest that there is such an explanation, then the fact that the alleged discriminator has been less than frank in the witness box when giving evidence will provide little, if any, evidence to support a finding of unlawful discrimination itself.

The problems of proof.

100. Lord Rodger recognised in the case of Shamoon that the task facing an applicant seeking to establish unlawful discrimination where there is no actual comparator will often be very difficult, not least because it is not legitimate to infer discrimination from unreasonable treatment (paras 140-141):

"Frequently, of course, a woman may claim that her employer discriminated against her in a situation where she cannot point to any actual case in which a male employee has been treated more favourably. What she says is that the employer treated her less favourably than he would have treated a male employee in the same circumstances. The words "would treat" in article 3(1)(a) specifically recognise that she can do this. In a contested claim before a tribunal the applicant has to prove how her employer would have treated a male employee in circumstances which, ex hypothesi, have not actually occurred. That male employee is often referred to as a "hypothetical comparator". In some cases the applicant's task may be relatively easy. For example, she may be able to point to an established policy or practice of the employer that involves treating women less favourably than men in virtually all circumstances. By proving the existence of the policy or practice the applicant may hope to satisfy the tribunal that, in the (unique) situation in which she found herself, her employer treated her less favourably than he would have treated a male employee if the same had happened to him. In many cases, however, the applicant leads more general evidence and invites the tribunal to find facts from which it can infer that her employer treated her less favourably than he would have treated a male employee in the same circumstances.

The task facing an applicant in such cases may well be difficult. Indeed it was to try to obviate these difficulties that at one time employees ran the argument that it was sufficient if an applicant could satisfy the tribunal that her employer had treated her as no reasonable employer would have treated an employee. In Zafar v Glasgow City Council 1996 SC 502, 505I - 506C that approach was stamped out, even though it was recognised that suitable evidence might be difficult to come by in these cases. Some of the arguments advanced in favour of the appellant's interpretation of article 7 echo this discredited plea ad misericordiam. They too must be rejected."

The relationship between the two issues.

101. The appellants submitted that the tribunal was obliged to find that there was less favourable treatment before considering whether it was on the grounds of race or sex. Without making such a finding, the tribunal could not be satisfied that there had been discrimination. Further, in order to establish whether or not there was less favourable treatment, the tribunal had to ask itself how an actual comparator had been treated by the alleged discriminator or, if as in this case there was no actual comparator, how a hypothetical comparator would have been treated. Thus, say the appellants, the tribunal needs to take care to formulate the appropriate hypothetical comparator, and to pose the question how such a person would have been treated. If the tribunal does not do that then its reasoning is defective and its decision cannot stand.
102. The appellants pointed to certain authorities such as the Effa and Marks and Spencer cases mentioned above, which they relied upon in support of these submissions. We do not consider that these authorities were laying down any such rigorous approach. But even if they were, it is now clear following the decision of the House of Lords in the Shamoon case that whilst it is necessary that the tribunal should be satisfied both that there is less favourable treatment and that it is on discriminatory grounds, it is not obligatory for a tribunal to pose both these questions in sequential order. Nor is it necessary for it to construct an appropriate hypothetical comparator in order to test whether there is less favourable treatment. It will usually not be possible to distinguish the two issues in a cut and dried way. The reason is that if the relevant characteristics of the appropriate comparator are those which have actually influenced the mind of the alleged discriminator, they cannot be identified until the grounds for the decision have been determined. In a nutshell, it is not possible to state whether the chosen comparator would have been differently treated independently of knowing why the alleged victim was treated in the way in which he or she was. The reason why the two issues are so interrelated was described with conspicuous clarity by Lord Nicholls in the Shamoon case (paras 7-12):

"I turn to consider the application of these provisions in practice. In deciding a discrimination claim one of the matters employment tribunals have to consider is whether the statutory definition of discrimination has been satisfied. When the claim is based on direct discrimination or victimisation, in practice tribunals in their decisions normally consider, first, whether the claimant received less favourable treatment than the appropriate comparator (the 'less favourable treatment' issue) and then, secondly, whether the less favourable treatment was on the relevant proscribed ground (the 'reason why' issue). Tribunals proceed to consider the reason why issue only if the less favourable treatment issue is resolved in favour of the claimant. Thus the less favourable treatment issue is treated as a threshold which the claimant must cross before the tribunal is called upon to decide why the claimant was afforded the treatment of which she is complaining.

No doubt there are cases where it is convenient and helpful to adopt this two step approach to what is essentially a single question: did the claimant, on the proscribed ground, receive less favourable treatment than others? But, especially where the identity of the relevant comparator is a matter of dispute, this sequential analysis may give rise to needless problems. Sometimes the less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue. The two issues are intertwined.

The present case is a good example. The relevant provisions in the Sex Discrimination (Northern Ireland) Order 1976 are in all material respects the same as those in the Sex Discrimination Act 1975 which, for ease of discussion, I have so far referred to. Chief Inspector Shamoon claimed she was treated less favourably than two male chief inspectors. Unlike her, they retained their counselling responsibilities. Is this comparing like with like? Prima facie it is not. She had been the subject of complaints and of representations by Police Federation representatives, the male chief inspectors had not. This might be the reason why she was treated as she was. This might explain why she was relieved of her responsibilities and they were not. But whether this factual difference between their positions was in truth a material difference is an issue which cannot be resolved without determining why she was treated as she was. It might be that the reason why she was relieved of her counselling responsibilities had nothing to do with the complaints and representations. If that were so, then a comparison between her and the two male chief inspectors may well be comparing like with like, because in that event the difference between her and her two male colleagues would be an immaterial difference.

I must take this a step further. As I have said, prima facie the comparison with the two male chief inspectors is not apt. So be it. Let it be assumed that, this being so, the most sensible course in practice is to proceed on the footing that the appropriate comparator is a hypothetical comparator: a male chief inspector regarding whose conduct similar complaints and representations had been made. On this footing the less favourable treatment issue is this: was Chief Inspector Shamoon treated less favourably than such a male chief inspector would have been treated? But, here also, the question is incapable of being answered without deciding why Chief Inspector Shamoon was treated as she was. It is impossible to decide whether Chief Inspector Shamoon was treated less favourably than a hypothetical male chief inspector without identifying the ground on which she was treated as she was. Was it grounds of sex? If yes, then she was treated less favourably than a male chief inspector in her position would have been treated. If not, not thus, on this footing also, the less favourable treatment issue is incapable of being decided without deciding the reason why issue. And the decision on the reason why issue will also provide the answer to the less favourable treatment issue.

This analysis seems to me to point to the conclusion that employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was. Was it on the proscribed ground which is the foundation of the application? That will call for an examination of all the facts of the case. Or was it for some other reason? If the latter, the application fails. If the former, there will be usually be no difficulty in deciding whether the treatment, afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others.

The most convenient and appropriate way to tackle the issues arising on any discrimination application must always depend upon the nature of the issues and all the circumstances of the case. There will be cases where it is convenient to decide the less favourable treatment issue first. But, for the reason set out above, when formulating their decisions employment tribunals may find it helpful to consider whether they should postpone determining the less favourable treatment issue until after they have decided why the treatment was afforded to the claimant. Adopting this course would have simplified the issues, and assisted in their resolution, in the present case."

103. Lord Nicholls referred to the potentially arid disputes which can arise over constructing the appropriate hypothetical comparator. This is partly because there is often a debate as to which characteristics are material for that purpose. Take this case; is the comparator a male elected officer? If so, there are obviously actual comparators who have been treated more favourably. Or is it a male officer who has been the subject of complaints about bullying? Or someone who has been the subject of such complaints and has as a consequence alienated other officers and staff? If either of the last two is the correct comparator, there is no actual comparator but only a hypothetical one. It will not be possible to know whether in fact that comparator would have been less favourably treated without determining the reason for the different treatment. Sometimes the courts have followed the more minimalist route to identifying the comparator, in which case an actual comparator will usually readily be found, and the reasons for the difference in treatment are analysed at the "reason why" stage. Sometimes the potentially relevant reasons are factored into the identification of the hypothetical comparator. Lord Nicholls identified these two different approaches, in the context of victimisation discrimination, in Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065; [2001] UKHL 48. In Shamoon the House of Lords has made it clear that in the case of race and sex discrimination (but not victimisation discrimination, where the statutory language is different) all relevant factors bearing on the decision will have to be factored into the analysis of the hypothetical comparator.
104. Lord Hope confessed that he had originally been attracted to the idea that the circumstances relevant to the issue of "less favourable treatment" were distinct from those materials to the "reason why" issue. However, he concluded that this approach was mistaken and that the same relevant circumstances must be taken to be the same in relation to each issue, even if they are treated separately. Indeed, he left open the question whether it was necessary even to consider both questions independently, observing that (para. 49):

"It is, I think, open to question whether the issue of less favourable treatment should be examined separately from the third issue with which the tribunal dealt under Article 3(a) namely which was whether the treatment which the appellant received was "on the ground of her sex". The third issue is the primary question. It directs attention to the question why the claimant was treated as she was. It calls for an examination of all the facts. If the two issues are to be examined separately, it may be helpful to for this question to be addressed first."

105. On this analysis, a finding that sex or race played no part in the reason for the treatment will also involve the finding that there was no less favourable treatment.
106. Lord Hutton commented that making "a too rigid distinction" between the two issues had created difficulties (para.69). He also observed that any facts which appear to provide an obvious explanation for the treatment would be relevant circumstances.
107. Lord Scott took the view that the comparator must be "in the same position in all respects as the victim save only that he, or she, is not a member of the protected class."(para. 110). He also expressly agreed with the opinion of Lord Rodger, who adopted a similar analysis of the concept of the hypothetical comparator. Lord Rodger said this:

"Parliament has not spelled out what constitute "the relevant circumstances" in article 7. The meaning of the words must therefore be deduced from the context. They occur in a provision prescribing how anyone administering the Order is to determine whether an alleged discriminator treated a woman less favourably than a man on the ground of her sex under article 3(1). So "the relevant circumstances" must be those circumstances that are relevant for that purpose. In Nagarajan v London Regional Transport [2000] 1 AC 501, 510H - 511B, Lord Nicholls of Birkenhead pointed out that in every case of alleged discrimination it is necessary to enquire why the complainant received less favourable treatment. As he went on to say, save in obvious cases, this will call for some consideration of the mental processes of the alleged discriminator in order to identify the grounds of his decision. I accordingly infer that "the relevant circumstances" in article 7 are those which the alleged discriminator takes into account when deciding to treat the woman as he does or when deciding to treat the man as he treats, or would treat, him."

108. The effect of this approach is that in fact it is only after there has been an analysis of the reason why the alleged victim was treated as he or she was that it is possible to define the hypothetical comparator. A factor will not be part of the relevant circumstances if in fact it has had no influence on the mind of the alleged discriminator. Accordingly, the end result is essentially the same as that adopted by Lord Nicholl. The two issues of "less favourable treatment" and "reason why" cannot be compartmentalised; before reaching a conclusion in either, the mental processes of the alleged discriminator must be considered.

The implications of Shamoon.

109. We would make three observations about this decision. First, by requiring all the relevant circumstances to be taken into consideration when defining the hypothetical comparator in the context of answering the "less favourable treatment" issue, and not merely when asking the "reason why" issue, a tribunal which finds that the prohibited grounds have played no part in the decision will also thereby necessarily be concluding that there is no less favourable treatment. This is not, however, of any practical importance since the determination of the "reason why" issue against the applicant is itself enough to defeat the claim. Conversely, if the tribunal find that the reason was a prohibited reason then there will usually be no difficulty in inferring less favourable treatment, as Lord Nicholls indicated. Once it is shown that a discriminatory reason has had a causative effect upon the decision, it will almost inevitably be an adverse one resulting in the victim receiving less favourable treatment than that which would have been meted out to the hypothetical comparator. In other words, the finding that the treatment was on the grounds of race or sex will almost always involve a finding of less favourable treatment.
110. Second, it follows that it will not be necessary for the tribunal actually to formulate the characteristics of the hypothetical comparator. If the applicant fails to satisfy the tribunal that the reason for the treatment is one of the proscribed reasons, then it follows that the tribunal must take the view that there are other non-discriminatory reasons which have led to the treatment. Even if these reasons have not been specifically identified by the alleged discriminator, they would, whatever they are, be relevant characteristics which distinguish the position of the applicant and the hypothetical comparator and prevent them from being in a like situation.
111. Third, there is an obligation on the tribunal to ensure that it has taken into consideration all potentially relevant non-discriminatory factors which might realistically explain the conduct of the alleged discriminator. As Lord Nicholls put it, if prima facie there is a factor which distinguishes the two situations, then that may well be the non-discriminatory reason for the treatment, unless the evidence indicates otherwise. If the tribunal do not recognise the potential significance of such a factor, then their decision will be flawed because they will have failed to take into account a potentially material characteristic or characteristics which could conclusively explain, on non-discriminatory grounds, the difference in treatment between the applicant and the hypothetical comparator. A tribunal cannot properly reject such potentially relevant explanations without considering them and having a proper evidential basis for rejecting them.
112. However, whilst it is not necessary for tribunals to specify with precision the hypothetical comparator, they may find it helpful provisionally to try to do so in order to identify any potentially relevant explanations which might account for the difference in treatment. Whether they do account for it or not will depend upon the evidence which emerges during the trial.
113. Accordingly, we reject the contention that it is an error of law for a tribunal to fail to identify a hypothetical comparator or to determine the issue of less favourable treatment prior to asking the "reason why" issue. Indeed, as Lord Nicholls pointed out, it may result in an arid and ultimately fruitless debate about which characteristics properly define the hypothetical comparator.

Reasons

114. Although there is no obligation to construct a hypothetical comparator, the failure to do so, at least in a provisional way, may raise doubts as to whether the tribunal has properly considered all potentially relevant explanations when identifying whether or not unlawful discrimination exists. It may raise a concern that the tribunal has failed properly to consider the possible lawful non-discriminatory reasons for the conduct in issue. That is one of the complaints of the appellants in this case.
115. A tribunal does of course have an obligation to give a clear reasoned decision. The basic principle is that set out by Lord Justice Bingham as he then was, in Meek v City of Birmingham District Council [1987] IRLR 250 at page 251 when he said this:

"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 a refined legal Draughtsmanship but it must contain an outline of the story which has given rise to the complaint and a summary of the tribunals basic factual conclusions and a statement of the reasons which led them to reach the conclusion which they do so on those basic facts. The parties are entitled to be told why they have won or lost. There should be a sufficient account of the facts and the reasoning to enable EAT or on further appeal this court to see whether the question of law arises……"

116. However, in discrimination cases, where inferences from primary facts play such an important role, it is necessary for the tribunal to set out its principal findings of primary fact and also the basis on which it has made any inference from those facts. In addition the tribunal should consider all relevant issues which may cast light on the question of whether or not discrimination has occurred. Two Court of Appeal decisions consider the nature and extent of the reasons, which tribunals should provide in discrimination cases. In Chapman v Simon [1994] IRLR 124 Lord Justice Peter Gibson in the course of his judgment said this:

"More often racial discrimination will have to be established, if at all, as a matter of inference. It is of the greatest importance that the primary facts from which such inference is drawn are set out with clarity by the Tribunal in its fact-finding role, so that the validity of the inference can be examined. Either the facts justifying such inference exist or they do not, but only the Tribunal can say what those facts are. A mere intuitive hunch, for example, that there has been unlawful discrimination, is insufficient without facts being found to support that conclusion."

He added later in his judgment (paragraph 47) that:

"…in my judgment it is not fair to those found guilty of racial discrimination that…an inference should stand in the absence of primary facts that would support it."

117. These comments were cited with approval in the Anya case to which we have made reference. In the course of giving judgment, Sedley LJ said this:

"There is at least one further obstacle to Mr Underhill's stalwart defence of the industrial tribunal's decision. The courts have repeatedly told appellants that it is not acceptable to comb through a set of reasons for hints of error and fragments of mistake, and to try to assemble these into a case for oversetting the decision. No more is it acceptable to comb through a patently deficient decision for signs of the missing elements, and to try to amplify these by argument into an adequate set of reasons. Just as the courts will not interfere with a decision, whatever its incidental flaws, which has covered the correct ground and answered the right questions, so they should not uphold a decision which has failed in this basic task, whatever its other virtues."

118. Moreover, a tribunal should take special care to explain how it has reached its conclusions if it finds unconscious discrimination. In Governors of Warwick Park School v Hazelhurst [2001] EWCA Civ 2056 Pill LJ, giving judgment in the Court of Appeal, commented (paras 24-25):

"In my judgment the Employment Appeal Tribunal were correct to hold that there was an error of law in the decision of the Employment Tribunal as identified by the Employment Appeal Tribunal. In a situation in which it is expressly found that there was no deliberate or conscious racial discrimination, it is necessary, before drawing the inference sought to be drawn, to set out the facts relied on and the process by which the inference is drawn. In some cases that process of reasoning need only be brief; in other cases more detailed reasoning will be required. The Employment Appeal Tribunal approached the matter in this way:

"... we do suggest that the less obvious the primary facts are as pointers or the more inconclusive or ambivalent the explanations given for the events in issue are as pointers, the more the need for the Employment Tribunal to explain why it is that from such primary facts and upon such explanations the inference that they have drawn has been drawn. The more equivocal the primary facts, the more the Employment Tribunal needs to explain why they have concluded as they have."

At page 11:

"As we have mentioned the tribunal repeatedly said that there had been no intention to discriminate. That, of course, is not in itself an answer but it is likely to lead to a position in which the reasons for the inference of racial discrimination need to be fully explained."

119. In addition to approving the approach of the Employment Appeal Tribunal, Pill LJ also observed, in a passage relied upon by Lord Hutton in the House of Lords in Shamoon (see para. 88), that "in the absence of reasoning, there is a danger that the inference has been wrongly drawn."
120. Mr de Mello submitted that even where the reasoning of the tribunal itself is less than satisfactory, it is legitimate for a court to have regard to the submissions, which are made to the judge, and to consider the reasoning in the light of those submissions. For this proposition he relied on the case of English v Emery Reimbold & Strick Limited [2002] 1 WLR 2409 and [2002] EWCA Civ 605. In that case Lord Phillips MR commented that:

"Justice will not be done if it is not apparent to the parties why one has won and the other has lost"

121. But he also indicated that in an appropriate case the parties as informed observers may be able to spell out any deficiency in the formal reasons from the submissions made by the parties. His Lordship put the position as follows (para 26):

"Where permission is granted to appeal on the grounds that the judgment does not contain adequate reasons, the appellate court should first review the judgment, in the context of the material evidence and submissions at the trial, in order to determine whether, when all of these are considered, it is apparent why the judge reached the decision that he did. If satisfied that the reason is apparent and that it is a valid basis for the judgment, the appeal will be dismissed…."

122. It be must be emphasised, however, that it will only be in a limited class of case that it will be possible to make good inadequate reasoning in this way. The submissions may make plain what was the issue in dispute as was indeed the position in the English case itself, for example: see paragraphs 42 to 43 of the judgment. It is not, however; legitimate to infer that a tribunal must properly have directed itself in law because it was referred to relevant authorities by the parties; nor that it must have had regard to relevant facts because the submissions made reference to them. It is no answer to a challenge to the reasoning of the tribunal that disputed questions of law, fact or inference were raised as issues before the tribunal. The crucial question is how the tribunal resolved those disputed questions, and only the tribunal's reasoning can disclose that.

The EAT's jurisdiction

123. Mr de Mello properly reminded us that our jurisdiction is limited to hearing appeals on points of law. They will, however, include inferences of fact which are not supported by the primary facts found. This uncontroversial principle is set out in the judgment of Mummery LJ in the case of Effa v Alexandra Health Care NHS Trust which was a case of alleged race discrimination. In the course of giving the judgment of the court, Mummery LJ, with whose judgment Mantell and Kennedy LJJ agreed, said this:

"It is common ground that an error in law is made by a tribunal if it finds less favourable treatment on racial grounds where there is no evidence or material from which it can properly make such in inference. See North West Thames Regional Health Authority v Noone [1988] ICR 813, [1988] IRLR 530 at p.824 of the former report. Although an employment tribunal is less formal in its procedures than a court of law and is not bound by the rules of evidence, it must be satisfied that the complaint is proved, on the balance of probabilities, by the person who makes it. In the absence of direct evidence on an issue of less favourable treatment on racial grounds, the tribunal may make inferences from other facts which are undisputed or are established by evidence. However, in the absence of adequate material from which inferences can be properly made, a tribunal is not entitled to find a claim proved by making unsupported legal or factual assumptions about disputed questions of less favourable treatment on racial grounds. This is so whether the discrimination is alleged to arise from conscious or subconscious influences operating in the mind of the alleged discriminator."

Summary of the disputed legal issues.

124. We would summarise our analysis of the effect of these authorities as follows. In our opinion the decision in Shamoon indicates that tribunals need not be unduly concerned to identify which is the hypothetical comparator in order to address the issue of less favourable treatment, as though this were a necessary stage in the reasoning process. That may lead to unnecessary and needless disputes. The tribunal must of course ensure that there is a proper comparison of like with like: that is essential to the finding of less favourable treatment. Moreover, the relevant statutory provisions require a comparison such that the relevant circumstances of the comparator are the same or not materially different from those of the applicant. However, the significance of identifying the comparator is that it identifies potential differences between the applicant and comparator which could explain the difference in treatment. Strictly, whether those factors are considered in the context of constructing an appropriate hypothetical comparator or whether they are considered in the context of the stage of determining the reason for the conduct will not matter in practice, although the decision in Shamoon makes it plain that all relevant factors should be considered at both stages, and indeed that ultimately there is only one question. What is crucial is that the tribunal considers all the explanations which, in the light of its findings, may realistically explain the decision. These explanations may be the reasons for the treatment relied upon by the alleged discriminator which the tribunal accepts as genuine, or they may naturally suggest themselves in the light of the tribunal's primary findings of fact. Provided these potential explanations are considered, the tribunal will in fact have taken account of all the characteristics that could be material to the make up the hypothetical comparator, however the comparator is defined.
125. If these possible explanations are going to be rejected in favour of a discriminatory reason, or if the tribunal finds that in addition proscribed reasons have contributed to the decision, then the tribunal ought to say why, and there must be a proper evidential basis for that conclusion. It is not legitimate to infer discrimination simply on the grounds that the reasons are unjustified; that would be to fall into the Zafar trap.

This does not mean that it is irrelevant whether an explanation is reasonable or not. The more obvious the 'innocent' explanation for the treatment, the stronger should be the evidence to displace it. Conversely, if the explanation given for the treatment is unreasonable or unsatisfactory then that may justify the tribunal inferring that it is not genuinely held. If there is no other cogent explanation arising from the evidence for the treatment complained of, then the rejection of the reason may (not must) justify an inference of discrimination. If, however, the tribunal accepts that the reason given for the treatment is genuine, then unless there is evidence to warrant a finding of unconscious discrimination, such that the tribunal is really finding that the alleged discriminator has concealed the true reason even from himself, there will be no basis to infer unlawful discrimination at all. Tribunals can in a proper case make a finding of unconscious discrimination, but it is a significant finding for a tribunal to hold that they can read someone's mind better than the person himself, and they are not entitled to reach that conclusion merely by way of a hunch or speculation, but only where there is clear evidence to warrant it.

126. It is not, therefore, an error of law to fail to construct a specific hypothetical comparator, provided all potentially non-discriminatory reasons which might sensibly account for the treatment have been properly taken into consideration. These may be the reasons actually given in evidence by the alleged discriminator, if they are accepted as genuine by the tribunal. Even if they are rejected, there may be other reasons which, on the facts found by the tribunal, could provide a cogent and non-discriminatory explanation for the conduct. If such non-discriminatory reasons are to be rejected, then the tribunal needs to state clearly why.

The conclusions of the tribunal on discrimination.

127. We now turn to analyse the specific findings of unlawful discrimination. We preface this analysis by commenting that we do find some difficulty in following the structure of the tribunal decision. In section 3 of the decision the tribunal sets out its assessment of the material witnesses. In section 4 it identifies the primary findings of fact. In section 7 it makes its "findings on the issues." It sets out its approach to this section as follows:

"we record our findings on both the six primary allegations and the 31 factual allegations. We then consider whether we may draw inferences of less favourable treatment and, if so, to what extent. …. We leave these to the end. We do so that we may be sure that our drawing of inferences is done, and may be seen to be done, in accordance with Qureshi, by looking at "the totality of [the] facts.""

130. In its factual analysis, the tribunal reaches certain conclusions as to whether Dr. Bahl has suffered what it terms a "detriment." In some cases this seems to mean less favourable treatment (notwithstanding that the tribunal states that it is leaving that issue to the end.) The concept of detriment is also used in some cases to mean disadvantage resulting from unreasonable treatment. By contrast there are numerous places where the tribunal concludes that there is no detriment because the treatment is reasonable and is no different to that which would have been meted out to a white male. This confuses detriment with discrimination. As we have said, there may be a detriment from reasonable and non-discriminatory treatment.

Having made findings of "detriment" the tribunal then considered the explanations for the treatment. In some cases it disbelieved them and in some cases it accepted them but considered them to be unreasonable. It then drew the inference that the treatment was less favourable than would have been accorded to a white male and also was on the proscribed grounds. We consider below the basis for those inferences.

128. The appellants submit that there is a lack of clarity in the heart of the decision which reinforces their criticisms of the whole reasoning process. Mr de Mello recognises that the tribunal has in places used inaccurate terminology and confuses detriment and less favourable treatment, but he submits that the reasoning is clear enough to pass muster. We return to consider this point below.
129. We turn to consider the conclusions of the tribunal, taking the two cases of Robert Sayer and Jane Betts separately.

Robert Sayer.

130. The tribunal concluded that Robert Sayer had treated Kamlesh Bahl "to her detriment" in the following three respects.

"that between 30 August and 9 December 1999 he did not attempt to have an informal discussion with Kamlesh Bahl about the complaint.

that on 9 December 1999 he was a member of the panel comprising three people who were all connected with the complaint of Russell Wallman some way.

that on 13 December 1999 he stalled over whether Kamlesh Bahl could see the papers that were to be put to Council or address Council herself."

131. It is necessary to set out the material findings of the tribunal in respect of each of these conclusions. We first focus on the relevant findings which has lead the tribunal to find that there was what it termed a "detriment" and then look at the process of reasoning which led it to conclude that there was unlawful discrimination.

No informal discussion.

132. It is relevant to note that the complaint was that the "persistent failure of the respondents to discuss the complaints informally with Kamlesh Bahl or to invite explanations from her prior to formal disciplinary action being taken." The tribunal concluded as follows:

"After 26 August 1999 there were no attempts to discuss the matter informally despite Ann Frazer's further complaints which she made to Robert Sayer. He had last spoken to Kamlesh Bahl about her conduct towards staff on 26 August 1999. His evidence was that her behaviour had improved for a short period after he had done so. He decided not to do so again.

If he had spoken to her there would have been the possibility of informal resolution. That treatment was to Kamlesh Bahl's detriment because the opportunity for early, informal resolution was not offered to her at that stage. Whether informal resolution would have succeeded, or whether the final outcome would have been materially different, is another matter."

Member of the Panel.

133. The tribunal dealt with this matter when considering a number of interrelated complaints which included allegations that Robert Sayer had convened a meeting of the panel and then made a finding of that there was a case to answer without informing Dr. Bahl of the existence of the formal complaint. The tribunal commented:

"These two allegations overlap to such an extent that they can properly be taken together. As a matter of fact the allegations are correct. The panel was convened and Kamlesh Bahl was not told of the complaint prior to the meeting. The procedure that was adopted was broadly in accordance with Bindmans' advice. However, Bindmans had referred explicitly to paragraph 6.10 of the Dignity at Work Policy, which required that a copy of the complaint be copied to the council member. This was not done. They also advised in emphatic terms that those investigating the complaint should not be "connected with the allegation in any way".

Implicit in all this was a requirement that the complaint be assessed objectively and that the panel should act fairly.

In our judgment a number of factors indicate that Robert Sayer and Jane Betts had decided that, as and when as formal complaint was raised, and whoever raised it, it would be treated as a complaint that required further investigation and action. Those factors were:

The lack of any attempt after 26 August 1999 to raise the potential of complaints informally with Kamlesh Bahl, despite the fact that there had been some improvement in her behaviour after that meeting.

The extensive discussions with MSF about bringing complaints forward.

The degree to which legal advice had been taken prior to a formal complaint being made.

The reassurances offered to MSF on the way any complaint would be handled.

There was, on our judgment, no objective assessment of the complaint on 9 December 1999. Despite Bindmans' advice all three of those who comprised the panel had, to a greater or lesser extent, been "connected with" Russell Wallman's complaint either as a witness to the behaviour about which he complained or in dealing with the consequences of it. Robert Sayer gave an explanation for the panel being thus comprised and having met and considered the complaint. It was that they had understood the concept of being "connected with" the complaints in a restricted way, as meaning only that the members of the panel should neither be a complainant nor an alleged perpetrator. That they did so was detrimental to Kamlesh Bahl who was entitled to the benefits of the Dignity at Work Policy, as well as to be subjected to its rigours, if appropriate.

We also appreciated it may have been the case that any panel of persons discharging the same function would have reached the same conclusion. Kamlesh Bahl accepted as much in cross-examination. We have not attempted to assess what the prospects for informal resolution, even at this stage, would have been if the matter had been considered by a panel who were not connected with the complaint in any way."

Stalling about the rights of Dr. Bahl to be given information and address the IEC.

134. In relation to the third finding of detriment, the "stalling" incident, the actual allegation was that Mr Sayer had refused to let Dr. Bahl see the papers which he was proposing to put before Council and had refused her the opportunity to circulate her own views to Council, not that he had simply stalled in responding to these requests. These allegations were plainly absurd, since she did see the papers and did put her views. The tribunal dealt with complaints as follows:

"These allegations are closely allied. Robert Sayer did not, in fact, refuse either of these requests but said he would take legal advice on them. Kamlesh Bahl was a member of Council. Robert Sayer could not have thought for an instant that she was not entitled to see the documents or to place her views before the Council, when her own position was to be considered. The effect of saying that he wanted to take legal advice was to stall or temporise over these matters. By doing so he created a doubt that the requests would be granted. That was, to a limited extent, to Kamlesh Bahl's detriment at that time."

135. The tribunal then returned to each of these three findings when setting out its conclusions. In relation to these matters they were as follows:

"As to there being no attempt at informal resolution Robert Sayer's explanation was that he could have spoken to Kamlesh Bahl but he did not want to fall out with her and that he did not want to make the wrong working relationship any worse.

When Robert Sayer had last spoken to Kamlesh Bahl about her behaviour it had improved, albeit briefly. It seemed to us that the natural, logical thing for Robert Sayer to do would have been to speak to Kamlesh Bahl informally. We would have expected the President at least to warn his Vice President in general terms of potential formal complaints when Ann Frazer reported further problems to him. It might well have been a difficult meting, but the failure to do so cried out for an explanation.

We have already rejected part of Robert Sayer's evidence on this point…. The explanation he gave for not speaking to Kamlesh Bahl again was weak to the point where it was not credible. Robert Sayer, above all, had no reason to be cowed by Kamlesh Bahl.

In our judgment, had the person complained of been a white person or male, then Robert Sayer would at least have attempted to deal with the matter informally.

The explanation Robert Sayer gave for believing that he was not "connected with" the complaint in any way when convening the panel was not satisfactory. Anybody receiving Bindmans' advice would realise that there was not justification whatsoever for such a restricted reading. That the Law Society's President, Secretary General and Director of Human Resources would choose to read it in such a way was astounding.

We came to the conclusion that had the person concerned been a white person or a man the Respondents would have taken particular care to ensure that an "unconnected" panel was convened.

Robert Sayer explained the he reasonably wanted to seek legal advice on Kamlesh Bahl's requests both to see the papers that were to be put before Council and to have an opportunity to speak at the meeting. As we have explained we did not accept that he believed he needed such advice at the time. The requests were obviously in line with all rules of natural justice."

136. The tribunal then set out two other matters in respect of which it had found discriminatory treatment but no detriment. It identified certain additional factors which caused it to make a finding of discrimination:

"We have also found that Robert Sayer set his face against Kamlesh Bahl after the meeting of 28 August 1999. From then on, in our judgment, his actions had the effect of making the presentation of formal complaints more likely. We have found that he deliberately omitted to read her email on 8 September 1999. He did not, for that reason, respond to it. We found that he was informed about the process of taking legal advice from Bindmans to a greater extent than he admitted. We noted he had changed his evidence about the date when he alleged Jane Betts had warned him that MSF were preparing to submit a formal complaint. We found that Robert Sayer and Jane Betts were discussing the question of formal complaints from at least 15 November 1999 onwards. We found that Robert Sayer did tell Jane Betts to "get it sorted"….

We also too into account in assessing the way in which Robert Sayer treated Kamlesh Bahl the way in which John Young was treated. The comparison was restricted to two specific aspects. The informal raisings of allegations with the office holder and the conduct of the relevant Council meetings."

137. In the light of those facts it set outs its conclusion that there had been discrimination in respect of each of these matters as follows:

"Looking at the totality of the facts we have found, the explanations we have rejected and the respects in which we have found Robert Sayer's evidence wanting, we draw the inference that an effective cause of his treatment of Kamlesh Bahl was on both racial grounds and the ground of her sex.

In each of the allegations of detrimental treatment we have upheld we find that Kamlesh Bahl was treated less favourably by Robert Sayer than a white person or a man who would have been treated in similar circumstances. But for her race and sex she would not have been subjected to detriment in those respects.

We do not distinguish between the race or sex of the Applicant in reaching this conclusion. Our reason for that is simple. The claim was advanced on the basis that Kamlesh Bahl was treated in the way she was because she is a black woman. Kamlesh Bahl was the first office holder that the Law Society had ever had who was not both white and male. There was no basis in the evidence for comparing her treatment with that of a white female, or a black male, office holder. We can only draw inferences. We do not know what was in the minds of Robert Sayer and Jane Betts at any particular point. It is sufficient for our purposes to find, where appropriate, that in each case they would not have treated a white person or a man less favourably. If we need to refine our approach for the purposes of dealing with remedy the parties may address this issue at that stage."

Jane Betts.

138. The matters on which they found Jane Betts had treated Dr. Bahl to her "detriment" were as follows:

"that on 9 December 1999 she was a member of the panel comprising three people who were all connected with the complaint of Russell Wallman in some way.

that on 13 December 1999 she breached confidentiality by confirming to Isabel De Sa that a complaint had been received about Kamlesh Bahl.

that on 15 December 1999 she did not alert the IEC that Andrew Hall's complaint was not validly made under the Dignity at Work Policy, nor of the need to follow the procedure that had been established.

that on 20 December 1999 she instructed Robin Lewis of Bindmans to make enquiries of the Union at the EOC about other allegations against Kamlesh Bahl.

that on 26 January 2000 she permitted the Union to broadcast a tannoy message to all staff."

139. We now set out the tribunal's findings with respect to each of these matters.

Member of the Panel.

As to being a member of the panel of three, the tribunal set out their concerns in the passage recited above in relation to Robert Sayer.

Breach of confidentiality.

Their conclusions were briefly described as follows:

"Jane Betts did tell Isabel De Sa about the complaint against Kamlesh Bahl in response to a query which suggested that the latter knew of the complaint in any event. In our judgment the news of the complaint having been made formally was probably common knowledge to Law Society staff within a matter of hours. It was to Kamlesh Bahl's detriment that Jane Betts did confirm the complaint because at that stage there was still a likelihood that Kamlesh Bahl would have to work with Isabel De Sa and other Law Society staff. The Law Society and the named Respondents were all purporting to deal with the matter confidentially. In our judgment Jane Betts would have been more likely to have maintained confidentiality had the complaint involved a white person or a male. Her explanation for doing so was that Isabel De Sa seemed to know what was going on."

Andrew Hall's complaint was not validly made

140. The tribunal started from the premise that the since the complaint was by an ex employee "it could not properly have been brought under the Dignity at Work Policy." It commented that Jean Johnson said that it should not have been circulated since it had not been considered by the panel, but it accepted that neither the IEC nor Council, nor indeed Mr Sayer, would have appreciated that the complaint was not valid. It noted Mrs Betts' explanation for not drawing attention to it, which was that "she did not address her mind to the fact that Andrew Hall was an ex employee", and that she understood that he had resigned from the Law Society because of his treatment at the hands of Dr. Bahl. The tribunal then set out its conclusions as follows:

"We came to the view that once Andrew Hall's complaint was put before the IEC it was inevitable that they would refer it to Council which was shortly to meet. The real issue was thus how it came to be before the IEC. That was wholly due to Jane Betts.

Jane Betts was an extremely well qualified and very experienced manger. She was entirely familiar with the circumstances of Andrew Hall leaving the Law Society 2 months earlier. She, above all, had been a key person in reviewing the Dignity at Work Policy and taking advice from Bindmans on how to apply it.

We came to the conclusion that Jane Betts would, in these circumstances, have recognised the problems with the complaint immediately. She would have taken this complaint to the IEC at this time irrespective of the race or sex of the person about whom the complaint was made. However she should have alerted the IEC that it was not valid or, at least, of the need to follow the procedure that had been established."

The EOC inquiries.

141. Dr. Bahl had denied to Council that any complaints about her bullying had been made by staff when she was at the EOC. The tribunal expressly rejected Jane Betts' explanation that she caused an investigation to be carried out at the EOC in order to see if that denial was true.(In fact it was not.) The tribunal found that the reason for her causing the inquiries to be made was "to seek information which might be damaging to Kamlesh Bahl. Using Bindmans to do so was to give the enquiry a semblance of propriety…." The tribunal also found that she was working closely with the union on this matter.

Permitting the tannoy announcement.

142. The tribunal's findings were summarised as follows:

"This message was broadcast in general terms but there could have been no member of staff who was not aware that it referred to Kamlesh Bahl and complaints against her. It was broadcast after three emails to staff abut the presentation of such complaints and very shortly before the expiry of the extended deadline for presenting complaints.

By permitting the Union to broadcast to all staff in this way Jane Betts was facilitating the making of further complaints. Whilst the announcement of union meetings may have been standard practice the same was not true of meetings of all staff organised by the MSF. The announcement was detrimental of Kamlesh Bahl."

143. The tribunal then returned to these matters again when setting out its conclusions, save for the allegation relating to the inquiries to the EOC, which curiously they said nothing more about at all.

"Jane Betts [gave] no explanation for considering that she was not "connected with" the complaint of Russell Wallman. In effect Robert Sayer's unsatisfactory explanation was given on behalf of the panel.

Jane Betts' explanation for the, albeit limited breach of confidentiality, was that Isabel De Sa appeared to know what was going on. As an explanation for breaching the confidentiality this was inadequate. That there was a breach of any sort by Jane Betts and that the reason was so weak were also, of themselves, factors which supported our general conclusions about her attitudes and actions.

Jane Betts' explanation for not appreciating that Andrew Hall's complaint was one which could properly be determined under the Dignity at Work Policy was that she did not address her mind to the fact that Andrew Hall was an ex-employee. She added that the complaint had arisen because he was an ex-employee and that she understood he had left the Law Society because of Kamlesh Bahl. As we have held earlier we consider that she would have appreciated immediately the problems with the complaint. She had been concentrating on the Dignity at Work Policy and taking advice about it over several weeks. We reject her explanation for not having alerted the IEC about the problem.

Jane Betts was asked about giving permission for the broadcasting of the tannoy message. Her explanation was that she could see not reason to refuse it. It was an explanation that we rejected and, as we have said, caused us to question her motives."

144. The tribunal then set out certain matters which it had taken into consideration in the following terms:

"We also took into account Jane Betts' stated perception that Kamlesh Bahl was taking over her role. Understandably Jane Betts resented this. She, as we have found, kept Robert Sayer informed about the process by which the formal complaints came forward. It was she in whom Phillip Hamer detected a sense of triumph when she brought in the complaint from Andrew Hall to the IEC meeting at Carey Street on 15^th December 1999. She commented to Lord Hunt about working closely with the Union.

In the case of Jane Betts we find that her use of language in the document she gave to the Special Committee and that she used at Lord Griffiths' Inquiry both give a clear indication that, perhaps unconsciously, her actions and omissions were on racial or gender based grounds. Her use of the expression that it was as if a culprit was to be found "and hands were going to be chopped off" to describe Kamlesh Bahl's behaviour to Lord Griffiths was the prime example of this. This phrase, descriptive of a sanction in Shariyah law, had clear racial overtones.

In evidence she apologised for speaking of Kamlesh Bahl's "quite girlish, charming chatter". She was unwilling when first challenged to acknowledge the obvious racial context of the word "lebensraum" or her statement to Michael Napier on his becoming Deputy Vice President that his arrival was like "the American forces relieving Belsen."

Jane Betts explained that she was a languages graduate and would use graphic imagery. There were many other examples of how she did so. The use of graphic language is possible without it having any basis on concepts related to race or gender. We well understand how in conversation expressions perhaps learnt in earlier life when awareness of the offence that certain terms can cause may unwittingly be used. We are alert not to attach too great a significance to an isolated usage however much we may deprecate it. In Jane Betts' case the language was used deliberately, repeatedly and graphically. Having weighed her explanation for using it we consider that it was another feature from which we might legitimately draw inferences.

Looking at the totality of the facts we have found, the explanations we have rejected and the respects in which we have found Jane Betts' evidence wanting, we draw the inferences that an effective cause of her treatments of Kamlesh Bahl was on both racial grounds and the ground of her sex.

In each of the allegations of detrimental treatment we have upheld we find that Kamlesh Bahl was treated less favourably by Jane Betts than a white person or a man who would have been treated in similar circumstances. But for her race and sex she would not have been subjected to detriment in those respects.

As with Robert Sayer we draw no distinction on the grounds of race and sex. We have found that some of Jane Betts' expressions betray a racial element. The comment about "girlish charming chatter" supports the inference that Jane Betts treated Kamlesh Bahl less favourably because Kamlesh Bahl is a woman."

145. The tribunal concluded that neither Mr Sayer nor Mrs Betts were guilty of conscious discrimination:

"We find in respect of both Robert Sayer and Jane Betts that there was a substantial element of deliberation in the acts they did which were detrimental to Kamlesh Bahl. That is not to say that we find that they were consciously motivated by grounds of race or gender. On the balance of probabilities we find that they were not conscious of their behaviour towards them being, in part, motivated by her race or sex."

The factors supporting unlawful discrimination.

146. It is in its conclusions that the tribunal has identified the factors relied upon to support the inference of unlawful discrimination. In the case of Mr Sayer it appears to have been the fact that he was not a satisfactory witness and, in particular, that his explanations had been rejected or found wanting. It also focussed upon the different way in which John Young had been treated. In addition, the tribunal seems to have given some weight to the fact that Mr Sayer had set his face against Kamlesh Bahl.
147. In the case of Mrs Betts there is again the fact that she was an unsatisfactory witness, the use of what the tribunal found to be racist and sexist language; and again the tribunal "took into account" the understandable hostility Jane Betts displayed towards Kamlesh Bahl because the latter was usurping her role.
148. Mr de Mello also submitted that the tribunal's conclusions with respect to Mr Sayer were justified on an additional basis. He placed considerable weight on two factors which he sought to bring together as support for the finding of discrimination against Mr  Sayer. The first was the sudden cooling of the relationship with Dr. Bahl after the informal discussion with her at the end of August 1999. The other was certain comments he made to the psychiatrist Dr. Anthony Clare at what was intended to be a light hearted occasion at an annual conference when senior officers were being questioned by the well known psychiatrist. In the course of the interview, Mr Sayer stated that he would sometimes shout in order to achieve his objectives, and indeed would even "fake" shouting to do so.
149. Mr de Mello submitted that this demonstrated that Mr Sayer considered that it was appropriate for a white male to act aggressively but not a black female. That was not however the conclusion of the tribunal on this point. It did not suggest that Mr Sayers' comments were a basis for inferring discrimination, and its conclusions were inconsistent with any such inference. Mr de Mello's analysis could only have any cogency if Mr Sayer himself had been personally critical of the way in which Dr. Bahl had conducted herself on the grounds that it was not the way in which a black female should behave. However, that is not what the evidence shows. He did not personally make any complaints about Dr. Bahl's bullying manner, nor has the tribunal found that he was personally offended by her behaviour. On the contrary, it found, in relation to Dr.Bahl's treatment of Mr Wallman, that he was prepared to do nothing about it if it advanced the reform programme. His concern with her conduct was not that it was inappropriate for an Asian woman, but that it would damage the Law Society and his own plans for reform.
150. As to the change of attitude at the end of August, Mr de Mello submitted that it would be perfectly possible for that to be caused by a resentment that Dr. Bahl was standing up to Mr Sayer and creating difficulties. He might have felt resentment about that because she was a black female. Indeed, he might, but that was not the conclusion reached by the tribunal. The cooling of the relationship could be explained merely because of the reason found by the tribunal - namely his concerns about the effects on him and his plans. The fact that his change of mood could be explained by hostility stemming from his perception that as a black woman she was being too assertive does not provide any evidence that it was for that reason. There must be evidence to justify that conclusion.

The grounds of appeal.

151. The appellants mount a root and branch attack against the decision of the tribunal. They identify what they claim is a whole series of flaws, both in the general approach of the tribunal to the question of discrimination, and to the detailed findings in respect of each of the specific areas of discrimination. We consider first the criticisms of the tribunal's general approach to analysing the issue of discrimination before considering the additional grounds on which it is contended that the specific findings are flawed.

Challenges to the general approach.

These can be considered under five heads.

Failing to distinguish racial and sexual discrimination.

152. The tribunal's approach to the question of discrimination is summarised in a passage which we set out above but is reproduced again here for convenience:

"We do not distinguish between the race or sex of the applicant in reaching this conclusion. Our reason for that is simple. The claim was advanced on the basis that Kamlesh Bahl was treated in the way she was because she is a black woman. Kamlesh Bahl was the first office holder that the Law Society had ever had who was not both white and male. There was no basis in the evidence for comparing her treatment with that of a white female, or a black male, office holder. We can only draw inferences. We do not know what was in the minds of Robert Sayer and Jane Betts at any particular point. It is sufficient for our purposes to find, where appropriate, that in each case they would have not treated a white person or a man less favourably. If we need to refine our approach for the purposes of dealing with remedy the parties may address this issue at that stage."

153. The appellants submit that this displays a plain error of law in the tribunal's approach. They say that it was incumbent on the tribunal to distinguish between the allegation of race discrimination and that of sex discrimination, and to make plain the evidential basis for drawing the inference of unlawful discrimination in respect of each ground. The evidence which will justify an inference of race discrimination will generally be quite separate and distinct from that which may justify an inference of sex discrimination and vice-versa. Accordingly, the appellants contend that the tribunal was obliged to consider each separately so that there would be a clear and transparent reasoning process as to how the findings of unlawful discrimination had been reached. The fact that the tribunal has lumped the two together without any proper assessment of the evidence relating to each ground is, they argue, supported by the tribunal's own recognition that it may need to adopt a more refined approach when looking at remedies. If it can do that at the remedies stage, why not earlier?
154. The reason for the tribunal not approaching the matter in that way appears to be because of the tribunal's observations that "there was no basis in the evidence for comparing her treatment with that of a white female or black male office holder". We confess to having some difficulty in understanding what this sentence means. It may be that the tribunal was intending to indicate that there was no actual comparator with whom any comparison could be made. That is plainly correct, although in those circumstances the tribunal was entitled to consider how the hypothetical comparator would have been treated in that situation. In the case of sex discrimination that would have involved considering how a male (white or black) would have been treated in otherwise like circumstances, and in the case of race discrimination how as white person (male or female) would have been treated in such circumstances. Alternatively, the tribunal may have meant simply that it could not disentangle the two elements and reach a clear conclusion on either.
155. Plainly it is possible for a tribunal to infer that there may be discrimination both on grounds of race and sex after considering the evidence in respect of each. But if the evidence does not satisfy the tribunal that there is discrimination on grounds of race or on grounds of sex, considered independently, then it is not open to a tribunal to find either claim satisfied on the basis that there is nonetheless discrimination on grounds of race and sex when both are taken together. That would fail to give effect to the fact that the burden of proof is on the applicant. Nor can the tribunal properly conclude, if it is uncertain about whether it is race or sex, that it will find both.
156. Mr de Mello submits that the tribunal was entitled to adopt this approach. It was not obliged to separate out the two strands of race and sex from the mix. The applicant had put her case before the tribunal on the basis that she was a black woman, and it was entitled to treat the two elements together. It was a unique case and the tribunal was justified in treating the evidence in the round without identifying those aspects which it considered justified the inference of race discrimination and those which justified a finding of sex discrimination.

We do not accept that submission. In our view the tribunal did err in law in failing to distinguish between the elements of alleged race and sex discrimination. The result was that it failed to reach properly reasoned findings on the question whether Dr. Bahl had satisfied the tribunal – the burden being on her – that discrimination had occurred in respect of either ground. This would, in our view, be a sufficient basis for upholding these appeals even in the absence of any other error of law.

Failing to consider what was in the minds of the appellants.

157. Mr Goulding submits that the paragraph reproduced above reflects another error. He refers to the conclusion of the tribunal that it can only draw inferences and "[does] not know what was in the minds of Robert Sayer and Jane Betts at any particular point". He submits that it was the duty of the tribunal to determine what was in their minds; without doing that, it would not be possible to know whether they were influenced by unlawful discriminatory considerations or not. It is crucial to enter the mind of the alleged discriminator, as the observations of their Lordships in Nagarajan make clear.
158. We do not think that this is a fair reading of that paragraph. In our view the tribunal was simply intending to indicate that in a case where there was no direct evidence of discrimination, then it could only draw inferences from all the surrounding circumstances. Plainly in this case the tribunal considered that it was possible to draw inferences as to what the unconscious motivations of the individual appellants were. We do not think that the tribunal was intending to say that the question of what was in their minds was either irrelevant or wholly unknowable.

Failing to identify less favourable treatment or to construct a hypothetical comparator.

159. The appellants submit that at no stage has the tribunal properly addressed the question of whether or not there was less favourable treatment of Dr. Bahl than would have been meted out to a white person or a male, as the case may be. The tribunal merely asserted that the detriments it had identified also amounted to less favourable treatment, without at any stage constructing a hypothetical comparator against whom an assessment of less favourable treatment could be made. It was contended that this was itself an error of law.
160. We reject that submission for reasons we have already set out above. It is not obligatory for tribunals formally to take those steps, although it may be prudent for it to do so, and it may more readily avoid errors in its reasoning if it does. The crucial question, in our opinion, is simply whether the tribunal has properly considered the factors other than race or sex which, on its own findings, might realistically explain the conduct, and if it rejects such explanations, whether it has given cogent and considered reasons for so doing.

Inadequate reasoning

161. The appellants contend that the tribunal has failed properly to explain its reasoning process. They submit that it is not clear how the tribunal concluded either that there was less favourable treatment, or that there was discrimination on the prohibited grounds. As to the former, there is merely the bald statement that the tribunal found each of what it had described as "detriments" to be less favourable treatment, but without any analysis why. As to the latter, the appellants submit that in particular the tribunal did not properly analyse why it should reject the obvious reasons for any adverse treatment. These were in Mr Sayer's case his concern that he and the Law Society would be damaged by the complaint; and in Mrs Betts' case her hostility towards Kamlesh Bahl because Dr. Bahl was usurping her position, undermining the morale of staff, and had been personally critical of Jane Betts in a way which clearly caused her emotional distress.
162. Mr de Mello submits that the reasoning is adequate, albeit not always as clear as is desirable. He accepts that there has been no construction of a hypothetical comparator as such; and he recognises that the language of the tribunal has in some respect been unsatisfactory in eliding the distinction between detriment, unreasonable treatment and less favourable treatment. But he contends that the tribunal decision, read as a whole, shows that the tribunal was alive to the possibility that there may be explanations other than the unlawful discriminatory one for the conduct involved. The tribunal in terms made findings about why Mr Sayer and Mrs Betts might want to demonstrate hostility towards Dr. Bahl for non-discriminatory reasons; and moreover they refer to them when summarising their conclusions. Accordingly, he says, they must have had those matters firmly in mind when inferring race and sex discrimination. Mr de Mello further submitted that this conclusion was reinforced by the fact that the appellants had emphasised the possibility of an "innocent" explanations in their submissions to the tribunal.
163. We consider that the appellants are correct in their submissions on this point. As we have said, the mere failure separately to identify the hypothetical comparator in the context of assessing less favourable treatment does not of itself indicate any defect of reasoning. Less favourable treatment may be inferred from the fact of unlawful discrimination. However, as cases such as Chapman v Simon and Governors of Warwick Park School v Hazlehurst demonstrate, it is a matter of real importance in cases of this kind that the primary facts and inferences drawn from them should be properly identified. Where there is an obvious explanation for treatment, then the tribunal ought to indicate in its reasoning that it has recognised that fact, and it should set out those considerations which have led it to the conclusion either that other discriminatory considerations have wholly displaced the obvious explanation, or at least have justified the conclusion that the obvious explanation is not the only explanation and that race or sex considerations have also played a part in the decision.
164. It is true in this case that in its conclusions the tribunal does refer to the fact that both Robert Sayer and Jane Betts were unsympathetic to Kamlesh Bahl, and to some extent why that was so. However, it appears to treat this antagonism as lending support to its conclusions that there was unlawful discrimination. It was wrong to do that since even if the hostility is unreasonable, Zafar makes clear that this lends no support at all to a finding of discrimination. There must be evidence independent of hostile treatment to justify the inference of discrimination on proscribed grounds.
165. More importantly, the tribunal does not at any stage appear to have appreciated that insofar as there was adverse treatment, the obvious explanation for such treatment was the very antagonism which it had identified and which was wholly explicable for non-discriminatory reasons. Had it formulated a hypothetical comparator, it would at a minimum have been a white male office holder who had antagonised both Mr Sayer and Mrs Betts for the reasons the tribunal found. If the tribunal was going to infer less favourable treatment without identifying a comparator, at least it ought to have demonstrated that it was conscious that the antagonism was an obvious and potentially non-discriminatory ground which might explain any adverse treatment. The tribunal ought to have considered the possibility that this was a powerful non-discriminatory and complete explanation for the treatment, and therefore inconsistent with a finding of unlawful discrimination. Moreover, if it was going to infer that the antagonism itself was rooted in unlawful discrimination, it ought to have made that plain and should have explained, in the case of Mr Sayer, why he would have suddenly become motivated by unconscious discrimination as from August 1999, when he had been strongly supportive of Dr. Bahl before then.
166. Moreover, we do not think that we can fairly assume from the fact that submissions on these matters were made to the tribunal that it would have had the point well in mind. The decision itself is where the reasoning of the tribunal is revealed. It suggests either that the tribunal did not fully appreciate the significance of the argument or that when formulating its decision it had lost sight of it in the welter of issues surrounding this case. It is not possible to assume both that it had the point clearly in mind and that it properly applied it.

Accordingly, in our view the tribunal did not give an adequately reasoned decision because it did not give proper consideration to the obvious possibility that the reason for any adverse treatment may have been the fact that both Mr Sayer and Mrs Betts had their own reasons, untainted by sex or race, for their conduct.

The finding of discrimination was inconsistent with the evidence.

167. The appellants go further and submit that not only was the reasoning defective but in addition the tribunal failed to identify any proper grounds for rejecting the obvious explanations for any adverse treatment, and wrongly inferred unlawful discrimination. Such grounds as the tribunal relied upon, such as the standing of Robert Sayer and Jane Betts as witnesses and the language of Mrs Betts, even if they could possibly carry any weight at all (which the appellants disputed) was of virtually no significance when weighed against the plain reasons why these two would display hostility towards her.
168. Mr de Mello disputes this. He contends that there is a proper evidential basis for the tribunal's conclusions. He points to the factors which the tribunal did identify as supporting the finding of discrimination. In the case of both Mr Sayer and Mrs Betts the tribunal expressly referred to the fact that they had rejected some of their explanations and had found their evidence wanting. It had in terms found that Mr Sayer had been more involved in the preparations that were undertaken than he had been prepared to admit, and that he was unwilling to accept responsibility for a letter to Dr. Bahl which had gone out in his name. . Mrs Betts was likewise considered to be an unsatisfactory witness whose evidence had given the tribunal "grave concern." Again certain of the explanations she gave for her behaviour were also rejected.
169. In addition, the tribunal placed significant weight on two other factors. In the case of Mr Sayers this was the treatment of Mr Young. For reasons we give below, we take the view that it was not entitled to place any reliance on his treatment. In the case of Mrs Betts they placed significance on what they described as language which had racial or sexual connotations. Mr de Mello reminded us of Lord Hope's warning in Shamoon (para 59) that appellate courts should hesitate before deciding to reverse the decision of an industrial tribunal, particularly where liability depends on drawing inferences from the primary facts and the tribunal has had the advantage of having seen and heard the witnesses. He contends that the explanation given by the tribunal in this case provides a rational and sufficient basis for the tribunal's conclusions that there was discrimination on the proscribed grounds.

We will consider the argument in respect of each of the individual appellants.

Robert Sayer

170. In the case of Robert Sayer, there were very few pointers to support a finding of discrimination at all. A significant one, in the eyes of the tribunal, was the different treatment afforded to Mr Young. For reasons we give in the next section, his treatment casts no light whatsoever on whether Mr Sayer was acting for unlawful discriminatory reasons and the tribunal was wrong to place any reliance on it.
171. That leaves the fact that Mr Sayer was an unsatisfactory witness. In an appropriate case, where the tribunal does not believe the explanation for particular treatment, that may justify a finding of discrimination, as Neill LJ's judgment in King shows. . (This presupposes that the primary finding justifies the inference that the explanation is not credible; as we indicate below, we do not think in this case that they always do.) However, where the tribunal has accepted the explanation he gave for certain conduct, the fact that the reason was unsatisfactory, in the sense of being unjustified or unreasonable, does not justify any inference of discrimination; to hold to the contrary is to fall into the Zafar trap
172. The tribunal has, however, in Robert Sayer's case only rejected the explanation for his treatment with respect to the reason he gave for failing informally to discuss the bullying allegations with Dr. Bahl after the end of August. (He was not asked at all about the stalling issue.) But there are significant factors which strongly suggest that considerations of race and sex could not properly explain that conduct.
173. First, it would be extraordinary if out of all the complaints made against him, he would have acted for one of the proscribed reasons in respect of this complaint but not others. This would be particularly surprising given the finding that the discrimination was unconscious. It is difficult to see how unconscious discrimination can influence the mind in respect of one relatively minor decision, and yet not do so in relation to a whole host of other decisions and actions taken with respect to the same person at much the same time. The tribunal said that it had looked at the totality of facts as Qureshi requires, but with respect to the tribunal, if it had properly done so, it would have had to ask itself what justifies the inference that the discriminatory reason will appear and then disappear in the unconscious mind, influencing some decisions but not others, without any apparent rhyme or reason, and to explain that in its reasons.
174. Second, as we have said, Mr Sayer had been a supporter of Dr. Bahl and it is not obvious-and no explanation is given- why in certain very specific respects his behaviour would suddenly became influenced by discriminatory considerations.
175. Finally, as we have indicated, even if the tribunal rejected the explanation in fact given, it made findings which disclosed the obvious explanation and which suggested that Mr Sayer's behaviour was the result of hostility to Dr. Bahl because, to put it colloquially, she was beginning to rock the boat and threaten both his position and the reforms he was seeking to push through. The position here is in some ways analogous to that in Shamoon. In that case the applicant was a woman police inspector in one of three divisions of the traffic branch. Like other inspectors in the branch, she carried out appraisals of police constables. There were two complaints about her appraisals which were taken up by the Police Federation. The superintendent decided to do the appraisals himself. The applicant contended that she was subject to sex discrimination because two other inspectors continued to carry out appraisals and they had been removed from her.. The industrial tribunal found that there was less favourable treatment and that it was on the grounds of sex; it was accepted that the Chief Constable was vicariously liable for the superintendent. The Court of Appeal upheld the Chief Constable's appeal, and the House of Lords rejected the applicant's appeal. They held that the tribunal had been wrong to treat the other inspectors as appropriate comparators, because the fact of complaints being made was a relevant factor explaining the treatment in her case and it was not a feature present in their cases. The tribunal found that in many respects the alleged discriminator, the superintendent, was not a satisfactory witness: see the observations of Lord Hope in the House of Lords (para 60). Nevertheless, and despite his evidence, the tribunal's own findings provided an obvious explanation for the conduct which had nothing to do with sex. The fact that the witness had been less than frank with the tribunal did not justify a finding of discrimination; that factor could not reasonably displace the obvious explanation for the treatment. Accordingly their Lordships held (albeit Lord Nicholls with some reservations) that they should not even remit the matter but should substitute a finding of no discrimination. There was no evidence from which the tribunal could properly infer discrimination.

Jane Betts.

176. In most respects the same difficulties present themselves in relation to Jane Betts. In her case however the tribunal rejected her explanations (as opposed to considering them unsatisfactory) in two cases, namely failing to disclose the fact that the Andrew Hall complaint was invalid, and pursuing inquiries with the EOC. Again, however, the question arises whether it can be proper to infer discrimination in relation to the five occasions as a result of rejecting her evidence on two of them (even assuming that the inference that her explanation was not to be accepted was justified). In her case also there was another obvious explanation for the treatment which ought not to have been readily overridden, particularly when the discrimination is found to be unconscious and when the inference had both to sustain the finding of less favourable treatment as well as the reason being a discriminatory one. Moreover, she too had initially tried to head off a formal complaint. The tribunal found, for example, that in April 1999 she suggested the possibility of Russell Wallman being seconded to a different department precisely because she wanted a low-key solution; she thought that a formal complaint would damage the Law Society and those involved.

The language.

177. The only additional factor in her case is the use of inappropriate language which the tribunal felt was racist and sexist. Three examples arise out of a statement which Jane Betts made to the Council. It is necessary to put the phrases in context:

"There was a further tirade from Kamlesh to me in the ladies' toilets at the Bournemouth conference on the subject of Andrew Hall. I was embarrassed but also fascinated by her self-control. Once she had got her way she went back to quite girlish charming chatter and we went back into the Conference hall…."

Later she wrote:

"I spent much of early 1999 focussing on Russell Wallman and how to find enough "lebensraum" for him to continue working whilst KB was around."

Finally, she said that when Michael Napier had been voted into office as Deputy Vice President she had said to him

"only half jokingly, that his arrival was like the American forces relieving Belsen."

The other comment was Mrs Betts' statement to the Lord Griffiths about the way in which Dr. Bahl had treated Russell Wallman on one occasion:

"It was confrontational and it felt as though there was a culprit going to be found and blame was going to be apportioned and hands were going to be chopped off."

178. Tribunals must be extremely careful when assessing the significance of language used in a metaphorical way. Moreover, it is extremely important not to confuse all inappropriate language, even if it may cause offence, with racist language. All racist language is offensive but not all offensive language is racist.
179. The tribunal accepted that Mrs Betts used graphic imagery, and that isolated incidents of offensive language ought not to be given too much significance. In this case, the tribunal does not explain at all why the use of the term "lebensraum" nor the phrase "the relief of Belsen" have any racial overtones at all in the context of a black woman. To describe someone as a "pocket Hitler" for example, could not in our opinion conceivably be used to support an inference of race discrimination, save possibly if the person were German. It may be that the reference to Belsen could cause some people offence for making a comparison between the situation of the Law Society staff and the inmates of a concentration camp, thereby trivialising the suffering of the latter. But that does not make the language racist. These are graphic phrases used metaphorically to make a point. Important findings of racism should not be based upon a tribunal's view that certain language is unacceptable and may cause offence.
180. Again, the phrase "girlish charming chatter", especially when made by a woman in the context in which this was, is not a justification for a finding of sex discrimination. Some graphic language in general use does not readily translate from male to female – the "club bore" would be a male example. We would accept that language of this kind could in some cases reveal an element of stereotyping, depending upon how the phrase is used. However, that usually leads to discrimination on the grounds that it is assumed that the person does not have certain qualities or skills, or is of a particular temperament, because of his or her gender or race. Decisions are then made on the basis of inaccurate and untested generalisations. Classically, stereotyping results in a failure to promote or appoint, not to the acts of discrimination relied upon here. In the absence of any other evidence whatsoever that Mrs Betts has discriminated against anyone on grounds of sex, the use of this phrase could not in our view begin to displace the obvious reason why Jane Betts showed hostility towards Kamlesh Bahl.
181. Finally there is the reference to "hands would be chopped off". Again this expression was used in a graphic and powerful way. It was no doubt insensitive for the expression to be used, although the fact that it was in the formal hearing before Lord Griffiths shows that there was no intention to be insulting. It was graphically demonstrating someone looking for scapegoats. Notwithstanding the context in which it was used, however, we would accept that it was open to the tribunal to treat it as providing some supporting weight to support a finding of an unconscious tendency towards racial stereotyping. However, this is in our view the only expression which the tribunal was entitled to say could display a racial element, and we are far from confident that this or any tribunal would have inferred discrimination on this basis alone. The finding of the tribunal was that Jane Betts had used inappropriate racist language "deliberately, repeatedly and graphically". We do not consider that their findings remotely support that conclusion. Insofar as the one reference is concerned, particularly when read in context, it is far too small a foundation on which to build the structure of race discrimination.

Accordingly, we accept that the tribunal was not entitled to conclude that there was discrimination, even with respect to the occasions where it rejected Jane Betts' explanation for her conduct.

John Young; an inappropriate comparator.

182. The tribunal drew an adverse inference against Mr Sayer in connection with his failure to raise the complaints of bullying informally with Dr. Bahl in part by relying upon the treatment of one John Young. It set out the potential relevance of John Young's position early in its decision. Putting the matter very briefly, he was nominated to become Deputy Vice-President but subsequent to that concerns were expressed about the fact that he had something of a reputation as a man with a "roving eye". There was concern that he had made certain improper advances towards a number of females. None of the individuals involved wished to make a formal complaint. He was given a firm warning but not requested to withdraw as nominated Deputy Vice President. He had expressed regret and indicted a determination that his conduct should not give rise to any further causes for concern. There was in fact a further incident where an allegation of inappropriate behaviour was made but that was denied by John Young. Subsequently, at a woman lawyer's conference on 8 April 1995, the then President (not Mr Sayer) was asked about steps which the Law Society had in place to deal with sexual harassment by council members. He indicted that there had been investigations but the matter had been resolved. However, it was plain that Mr Young's identity would become known and accordingly he retired from the Council and withdrew from the election of President, although completing his period of office as Vice President. It was this incident that gave rise to the creation of the Dignity at Work Policy.
183. The tribunal put considerable weight on the fact that the difficulties of Mr Young with members of staff had been dealt with in an informal way, whereas the complaints about Dr. Bahl had been dealt with formally under the Dignity Policy. In particular, the tribunal considered that Mr Sayer ought to have approached her and sought to deal with the matter informally following the meeting he held with her at the end of August. The tribunal said this:

"We also took into account the way in which Robert Sayer treated Kamlesh Bahl in the way in which John Young was treated. The comparison was restricted to two specific aspects. The informal raising of allegations with the office holder and the conduct of the relevant Council meetings."

184. The appellants submit the treatment of John Young as a relevant comparator is wholly misguided. The treatment of Mr Young could be material only if Mr Sayer had personally been involved in the decision how to treat Mr Young. In fact it is common ground that he was not involved at all. He was, it is true, a Council member and attended a meeting when Council received a report about the steps that had been taken with regard to Mr Young. That does not in any way make him a party to the conduct at that time. Mr De Mello saw the force of this observation but submitted that nonetheless the tribunal was entitled to have regard to the treatment of Mr Young as a factor in determining the inferences which could be drawn against Mr Sayer.
185. In our view, the treatment by other people of Mr Young in different circumstances could be of no relevance whatsoever in assessing whether the conduct of Mr Sayer was discriminatory. One hardly needs an authority for this self-evident proposition, although the judgment of Lord Browne Wilkinson in the Zafar case supports it, as do the opinions of Lords Scott and Rodger in the Shamoon case. In the latter Lord Rodger observed (para.146):

"The tribunal's decision is vitiated by two fundamental errors. First, it overlooked the fact that Superintendent Laird had no authority over the two male chief inspectors who were in different regions. So, if they continued to do assessments, this was not because of any decision which Superintendent Laird had taken to allow them to do so. He did nothing in relation to them - he did not "treat" them at all. For that reason, it was not open to the tribunal to find in terms of article 3(1)(a) that Superintendent Laird treated the appellant less favourably than he treated the two male chief inspectors."

Lord Scott made a similar analysis; see para.112.

186. It is immaterial that the Law Society was ultimately responsible for the treatment of both Mr Young and Dr.Bahl. Their liability is purely vicarious. They can only be liable if Mr Sayer is liable. Past conduct can only have evidential relevance if it involved treatment meted out by him; it is only in those circumstances that it can be relied upon to show that he was treating Dr. Bahl differently than he would have treated a white male. The point is a short one: it is not possible to infer that A has discriminated against B because of treatment which C has meted out to D
187. In any event, we think there are a number of other difficulties with using Mr Young as a comparator. We do not consider that the circumstances could be said to be essentially similar. First, the fact is that Mr Sayer did raise the issue of bullying informally with Dr. Bahl. That is not in dispute; the question is whether it should have been raised by him on a second occasion with her. Second, Mr Young recognised and accepted that he had acted improperly; that is not the position in relation to Dr. Bahl, who at all times was unwilling to recognise that she had been acting inappropriately. Third, there was a Dignity Policy in place by the time complaints were being made in respect of Dr. Bahl; that policy was not established when the position of Mr Young was being dealt with. Once the policy had been adopted, it made any informal resolution more difficult.
188. Accordingly, we consider that the tribunal made a plain error of law in treating the manner in which Mr Young had been treated some five years earlier as having any bearing whatsoever on the question whether Mr Sayer had acted in an unlawfully discriminatory manner. It ought not to have done so, and it was plainly an important feature in their conclusion that there had been unlawful discrimination by Mr Sayer with regard to his failure informally to raise matters with Dr. Bahl after August 1999. There are certain additional matters which the appellants say render that particular conclusion of the tribunal unlawful, and which we analyse below, but we accept that this ground is itself enough to invalidate that particular finding.

Challenges directed to specific findings.

189. We now turn to consider the other grounds on which it is alleged that the specific findings of unlawful discrimination are flawed. We take each head in turn, first considering the three areas in which Robert Sayer was found to have been liable.

Robert Sayer.

Lack of informal discussion

190. We have already indicted that in our view this conclusion not sustainable because of the weight wrongly given to the use of Mr Young as a comparator. But the complaints are more extensive than this. It is pertinent to note that the original allegation advanced by Dr. Bahl was not that there had been a failure by Mr Sayer informally to discuss the complaints after 30 August. Rather it was that there had been "a persistent failure of the respondents to discuss the complaints informally with Kamlesh Bahl or to invite explanations from her prior to formal disciplinary action had been taken." Both her evidence at the tribunal itself and a statement she made to the Council following the publication of Lord Griffiths' report stated that she had not been given "the slightest inkling" that staff were experiencing difficulties as a result of her approach to the them. That was manifestly false, as the tribunal found. She admitted as much to the tribunal. Mr Goulding identified numerous occasions when staff had informally raised their concerns about her behaviour, as indeed had Mr Matthews and Mr Sayer himself when they were Presidents.
191. Both Mr Goulding and Ms Simler contend that in the circumstances it was not open to the tribunal to reach a finding of adverse discrimination on this issue at all. They rely upon the principle enunciated in Chapman v Simon, to which we have referred, to the effect that the tribunal has no jurisdiction to make findings of discrimination where no relevant allegation has been made. In this case Mr Sayer would have anticipated a complaint that neither he nor anybody else had informally discussed the complaints with Kamlesh Bahl. He would not reasonably anticipate that the complaint was that although there had been such discussions, there had been none by him after the 30 August.
192. Mr de Mello submitted that the complaint was broad enough to cover this more limited finding of discrimination and that accordingly the Chapman principle was not applicable. We reject that. Dr. Bahl was not saying that there was a failure at each and every stage to fail to raise matters with her informally. Indeed, having received so many informal cautions, it would have been unrealistic to allege that it was discriminatory not to have received more. Her evidence confirms that she was saying that at no stage were the concerns raised with her.
193. It is true that there was some questioning of Mr Sayer about why he had not raised the issue informally with Dr. Bahl after the end of August, and he gave his explanation for this, as we have seen. But it was never made clear that this was a distinct complaint; there never was any application formally to amend the claim so as to identify this as a precise allegation. That is in a context where the specific allegations had been set out in extreme detail. No doubt there may exceptionally be cases where an issue is so plainly before the tribunal that even although there has been no formal application to amend, the parties are fully cognisant of the fact that the matter is properly and fairly before the tribunal, that it is being pursued as a distinct complaint and that an application for amendment is inevitably going to succeed. But that was not this case. We consider that it is important in a matter of this kind, where findings of discrimination are being made against an individual, that there should be no equivocation or uncertainty about the allegations that are being made. Here Mr Sayer did not address this specific issue in his witness statement. Had this been the formulated complaint, then no doubt he would have focused on that aspect in a more detailed and considered way rather than simply dealing with certain questions relating to it in cross-examination. It appears that the closing submissions of Counsel for Mr Sayer did not address this matter at all, because it was not apparent that it was a specific point of complaint concerning the tribunal. We consider that Mr Sayer could justifiably feel aggrieved at a finding of discrimination being made against him in the circumstances, and we do not accept that the tribunal had jurisdiction to make this finding.
194. It is not strictly necessary to consider this particular determination of the tribunal in any greater depth. However, we ought briefly to indicate that we also have reservations about two other aspects of it, both of which were relied upon by the appellants.
195. First, Mr Sayer had actively promoted the interests of Dr. Bahl and maintained a good relationship with her until it turned sour in August 1999 following the meeting where he raised the issue of her bullying behaviour with her. In those circumstances, we think that the tribunal should have explained, albeit briefly, why it was that his treatment of her after that date was not because of the obvious and dramatic deterioration of the relationship following his discussions with her and Mr Napier, but because he was thereafter influenced by considerations of race and or sex.
196. Second, the tribunal concluded that Robert Sayer's explanation for not speaking to Dr. Bahl was "so weak as to be not credible". It then added, "that he had no reason to be cowed by Dr. Bahl". But his reason for not speaking to her was not that he had been cowed by Dr. Bahl; his explanation was that he had already made an informal approach and he felt that a further approach at this stage, at least in circumstances where Ms Frazer was not willing to authorise him to reveal her identity, would simply exacerbate the breakdown of the relationship with Dr. Bahl. Moreover, as the tribunal found, he was not unwilling to raise the issue again with Ms Fraser, but only if she was prepared to let him be specific about the complaints . In view of this, we doubt whether the tribunal was justified in rejecting Mr Sayer's explanation out of hand in the way that it did. The explanation may be that it was influenced, and improperly influenced as we have indicated, by drawing a direct comparison with Mr Young's treatment.

Membership of the panel of three.

197. The tribunal found that both Jane Betts and Robert Sayer had acted in an unlawfully discriminatory manner in being party to the panel which found that there was a case to answer against Kamlesh Bahl arising out of the complaint from Russell Wallman. That particular allegation had also been directed against Jean Johnson. But the tribunal found that she had not been motivated by improper considerations of race or sex. It is pertinent to note that all three had given evidence that they understood that they would only be disqualified from sitting as a connected person if they were either the complainant or the alleged perpetrator of the bullying. It was Jean Johnson's department that had drawn up the policy, and she gave evidence in terms that she understood the words "connected in any way" "merely to be eliminating persons who fell into either of those two categories. The tribunal found this explanation "astounding". It concluded that it ought to have been plain that none of these individuals should have sat on the panel. Robert Sayer had witnessed her intimidatory conduct towards Mr Wallman, and Jean Johnson and Jane Betts had been involved at earlier stages of his complaint.

It is to be noted that the tribunal do not find that the explanation given by any of these individuals was not their genuine belief as to how the rules should be construed. It found the explanation of Robert Sayer and Jane Betts for holding that belief to be unsatisfactory. It was on that basis that it inferred unlawful discrimination.

198. The appellants submit that there are a whole series of errors in the approach of the tribunal to this matter. First, they contend that the tribunal has again fallen into the error of inferring discrimination from the fact that the conduct of Mr Sayer and Mrs Betts was unreasonable. They fell into the Zafar trap. We agree with that analysis. There was a genuine if, in the tribunal's view, misguided interpretation of the policy. Individuals ought not to be found to have discriminated simply because they have got something wrong. That may justify an inference that the explanation is not genuine, but it will need cogent evidence to show that a genuine, albeit wrong, construction is motivated by considerations of race or sex. There is in our view simply no such material before this tribunal that could have begun to justify that inference.
199. The appellants assert that there are other difficulties with the tribunal's conclusions on this point. The tribunal found in the case of Jean Johnson that her understanding of the policy did provide a satisfactory explanation for her behaviour and did not warrant an inference of unlawful discrimination. The individual appellants say that there was no proper basis for treating them differently. We agree that there was not. The tribunal distinguished Jean Johnson's position from the other two on two principal grounds. First, it said that both Mr Sayer and Mrs Betts had seen the advice from Bindmans, which "emphasised" the need for an independent panel, whereas she had not. If one looks at the advice from Bindmans, it does not bear out that analysis. Bindmans made no observation at any stage about the meaning of that phrase. It is true that the words "connected with the allegation in any way" are in inverted commas and italicised in the letter, but it is clear that that is not for emphasis but simply because Mr Lewis adopted that format whenever he was quoting directly from the terms of the Dignity Policy, as he did in a number of places. There is no justification for saying that the advice ought to have alerted either Mr Sayer or Mrs Betts to a realisation that their understanding of the meaning of the phrase was wrong. The other explanation given was that Jean Johnson had not, like the other two, acted to Kamlesh Bahl's detriment in any other respect. However, the fact that they had acted to her detriment would not merit any inference of unlawful discrimination.
200. Second, the appellants submit that in the circumstances of this case it is inconceivable that the tribunal could properly have concluded that there was any detriment, even allowing for the very broad construction to be placed on that concept. Kamlesh Bahl herself had accepted that it was a serious complaint that required investigation. The tribunal recognised that a differently constituted panel may well have reached the same conclusion, without making a finding on the point. The appellants contend that in truth it would have been impossible for any panel in the circumstances to have reached any other conclusion, particularly since the MSF was, as the tribunal found, treating this matter as being extremely serious. We see very considerable force in this argument, but we think that it was open to the tribunal to find a detriment, albeit that it could be little more than the sense of grievance that the matter was not handled wholly objectively. The tribunal also touched on the possibility, however remote, that even at that stage further attempts at an informal resolution of the problem might have been tried had a different panel been seized of the matter.
201. There is, however, a related point. The purpose of the investigation was simply to determine that there was a case to answer. That is a very low threshold. It was plain beyond doubt that it was satisfied here. The tribunal was critical of the fact that the panel had effectively taken the view, even in advance of the complaint being made, that it would be treated as one requiring further investigation. However, the panel was doing no more in the circumstances than anticipating the obvious. In truth the panel was doing little more than acting as a messenger of the complaint; they received it and then sought to ensure that it would be considered fully by a properly constituted body in accordance with an agreed procedure. There is something quite unrealistic, in our view, in concluding that either Mrs Betts or Mr Sayer, in not appreciating that they should remove themselves from a panel whose decision seemed both wholly uncontroversial and, indeed, inevitable, would have been influenced by unconscious race or sex considerations.
202. We should add that we are by no means convinced that the tribunal is right to say that Mrs Betts was a "connected person" within the meaning of the policy. The policy itself envisages that where a Council or Committee member is alleged to be the harasser, then a staff member can refer the matter initially to the Director of Human Resources who will then discuss it with the Secretary General and, if necessary, the President. They are precisely the same three people who under the terms of the Policy will consider the formal complaint. In other words, the procedure itself envisages that those three may be involved both at the initial informal stage and at a later formal stage. To the extent that their involvement arises from any attempt to assist in the resolution of the complaint at the informal stage, it appears to be envisaged by the Policy itself that that ought not to exclude them from sitting as part of the investigating panel if a formal complaint is made. This is not particularly surprising since they are only acting as a preliminary body which has to decide, to a low threshold, whether there is a case to answer. It seems to us that Jane Betts had no greater involvement than that in relation to the particular complaint lodged by Mr Wallman. If that construction of the Policy is right - indeed if it is arguably right- then the premise on which the tribunal found that Mrs Betts was unconsciously discriminating, namely that her interpretation of the policy was "astounding", would be false. We accept, however, that Mr Sayer, by contrast, probably was strictly precluded from sitting on the panel on a proper construction of its terms, but his failure to have appreciated that fact did not result from any race or sex discrimination, for reasons we have given.

The stalling allegation

203. Again it is important to focus on the allegation that was being made by Dr. Bahl. The contention was that Mr Sayer would not agree to Dr. Bahl seeing the papers that were to be circulated to the Council or to circulate her own views to Council, when it was considering whether or not she should be (in effect) suspended from office pending the resolution of the complaint. That allegation was plainly false, as the tribunal found. Mr Sayer had responded to the request by saying that he would take legal advice; in the event Dr. Bahl did receive papers (although not all the papers she wanted) and was able to circulate her views. Nonetheless, the tribunal went on to find that Mr Sayer had deliberately stalled in giving his answer; he must have known that he would have to afford her these rights.
204. The appellants say that as with the finding relating to the lack of informal consultation, this is another case where the tribunal has made a finding in respect of the complaint of its own creation which was never before it. The complaint was not that Mr Sayer had "stalled" and thereby led Dr. Bahl to have some doubts as to whether not she would be able to exercise these rights. It was not put to Mr Sayer in cross examination that he had been deliberately stalling, and no application to amend the claim so as to include such an allegation was ever made. In the circumstances we have no doubt that it was wrong for the tribunal to reach this conclusion. It cannot be fair to make a finding of unlawful discrimination against someone without that person having a full opportunity properly and unambiguously to address the complaint which is being alleged. Again, therefore, we conclude that the tribunal had no jurisdiction to make a finding of discrimination on this matter, following the decision in Chapman v Simon.
205. Apart from this conclusive answer to this particular complaint, the appellants submit hat there are other errors in the conclusion of the tribunal. First, the tribunal found that Mr Sayer "could not have thought for an instant" that Dr. Bahl would not entitled to see the documents or to circulate her own. That, it is submitted, was not a legitimate inference to draw. By this stage the matter was in the hands of the lawyers. There were other matters, which were also raised at the meeting with Dr. Bahl, where Mr Sayer had said that he would take further legal advice. It was a difficult and tense meeting, as the tribunal found. There was a real issue about which documents would be disclosed in any event. In the circumstances, it was a wholly natural and cautious response.
206. We see considerable force in this argument. We confess that we find the tribunal's conclusion a surprising one, but we must remember that the tribunal had the opportunity of assessing the witness, It seems to us that this particular conclusion was one which it was open to it to draw. However, the tension in the relationship at that stage is an obvious explanation for any obstructive conduct of this nature by Mr Sayer, and yet that was not considered by the tribunal as a possible reason for his conduct. In our view this reinforces, in the context of this allegation, our conclusion that the inference of unconscious discrimination was not warranted.
207. Finally, the appellants also submit that this could not constitute a detriment. There were no practical consequences resulting from this since Dr. Bahl was afforded the rights which she sought. However, we consider that the tribunal was entitled to find a detriment to the extent that there was a "doubt" as to whether the rights would be granted. The tribunal itself recognised that it was a detriment only "to a limited extent."
208. However, although we would not interfere with the finding of detriment, we would observe that the fact that this was never a separate and distinct complaint of itself strongly suggests that it was not perceived by Dr. Bahl herself as amounting to a detriment of any real significance.

Miscellaneous matters.

209. We should briefly deal with two other matters of complaint against Mr Sayer which, however, the tribunal did not consider constituted unlawful discrimination. First, it was critical of Mr Sayer on the ground that he allowed David Mackintosh to misrepresent at the Council meeting on the 15^th December the number of complaints that had been made against Kamlesh Bahl. Mr Mackintosh said that there were up to seventeen potential complaints. The tribunal recognised that Mr Sayer would not know what Mr Mackintosh was going to say at that meeting, but it said that he could have corrected that information. The premise is that the information was wrong, had been provided by Mr Sayer, and ought to have been checked by him. In fact the evidence before the tribunal apparently showed that Mr Mackintosh was simply repeating the information which the MSF had provided, and he was doing so accurately. In his evidence Mr Mackintosh said he was not sure whether he had been given that information by Mr Sayer or not. In the circumstances it is difficult to see how any criticism can be directed against Mr Sayer arising out of Mr Mackintosh's comments.
210. Second, the tribunal was critical of the letter of reassurance that had been sent to MSF (although again this does not appear to have been the subject of a specific complaint). We confess to having found this conclusion somewhat surprising. It seems to us perfectly proper for Mrs Betts and Mr Sayer to have given a reassurance to the MSF that staff would not suffer retribution as a consequence of making complaints, and indeed their legal advice was to that effect. They had been led to believe that some members of staff were in fear of making a complaint because they were concerned about potential victimisation. Whatever the justification for that fear, they were manifestly entitled to conclude that it was genuinely held. The tribunal has taken the view that the reassurance was going to encourage complaints and that it was extraordinary for these officers to give a reassurance of this nature which would apply to malicious complaints made in bad faith. It may well be that the officers were not averse to further complaints being made, but it does not follow that the reassurance was unjustified. As Mr Goulding observed, it was surely important that all potential complaints were dealt with together. Nor do we accept that read fairly the letter would cover malicious complaints. We think it is implicit in the letter that the reassurance was given in respect of complaints made in good faith. It may have been more prudent not to have sent the reassurance until after the first formal complaint had been made, so as not to be thought to be encouraging complaints, but we do not think that the tribunal was entitled to find that it was wrong to give the reassurance in the form in which it was given.

Mrs Betts.

211. We now turn to consider the detailed complaints against Mrs Betts.

Membership of the panel of three.

212. We make the same observations here as we have in relation to this allegation as directed Mr Sayer. In her case, however, for reasons we have already given, the tribunal was not in our view justified in treating her involvement in the panel as plainly forbidden by the Dignity at Work Policy.

Breach of confidentiality to Isabel De Sa.

213. Isabel De Sa was Secretary of the IEC. She had spoken to Ms Betts about the demand for information made by Dr. Bahl. Apparently a considerable amount of material had been requested and Ms de Sa was concerned about this and about the propriety of assembling it for Dr. Bahl. Ms de Sa asked Jane Betts "is this the case for the defence?" Mrs Betts inferred, as the tribunal thought accurately, that Ms de Sa seemed to know that the complaint had been made against Dr. Bahl in any event The tribunal found in terms that news of the complaint was in fact probably common knowledge around the Law Society within a matter of hours of the complaint having been made, and no doubt that was a realistic assessment. Jane Betts merely confirmed the position. She also offered to be a channel of communication between Ms de Sa and Kamlesh Bahl.
214. Against this background the tribunal concluded that in confirming this fact, Mrs Betts was acting improperly and for a discriminatory motive. The tribunal found that she would have more likely maintained confidentiality had the complaint involved a white person or a male. The tribunal held that it was a weak explanation by Jane Betts and that its very inadequacy justified the inference of discrimination. They did not however find that it was not genuinely held.
215. In our view the important question is not whether the explanation was weak but whether it was honestly held. No doubt, strictly in accordance with the understanding that confidentiality would be respected, Mrs Betts should not have confirmed what was on any view a very strong suspicion in the mind of Ms de Sa that Dr. Bahl was the alleged perpetrator. But it is hardly an untypical human reaction to confirm the information in those circumstances, however inappropriate that may be. Indeed, it seems to us that Jane Betts was in a very difficult situation. She did not volunteer the information; the question was posed to her. She could not lie to Ms de Sa- or at least she may have properly thought that she ought not to do so; and yet if she said "no comment" or some such similar phrase, then no doubt Ms de Sa would have jumped to what was in fact the correct conclusion.
216. We remind ourselves again that we must not substitute our view for that of the tribunal. We do not quarrel with their finding that the explanation was inadequate, if by that is meant that Jane Betts ought to have respected the confidentiality. But the tribunal does not say that it was not a genuine explanation, and indeed all their findings suggest that it was.
217. The appellants submit that there was no basis at all for inferring unlawful discrimination and that this is another example of the Zafar principle being infringed. We agree with that analysis. An inadequate or unjustified explanation does not of itself amount to a discriminatory one. The tribunal has made findings of primary fact which provide a cogent and indeed obvious explanation as to why Mrs Betts confirmed the name, even if she should not strictly have revealed it.
218. The evidence to displace that obvious explanation is conspicuously lacking. It amounts to little more than the use of inappropriate language which could conceivably support a finding of race on one occasion. The fact that Mrs Betts may have been an unsatisfactory witness in other respects is at best of marginal relevance when the primary findings provide a wholly understandable non-discriminatory explanation for her conduct. In our view there is no basis on which it can be said either that there would have been less favourable treatment if the person complained of had been a male, or that there was any discrimination on grounds of race. There had to be some explanation for Ms de Sa requesting so much material and Ms de Sa had to be satisfied that she should properly give it. It was confirmed to her what she had strongly suspected that justification for providing the material to be.
219. It is also pertinent to note that one of the complaints of Dr. Bahl was that Mrs Betts had indicated to Ms de Sa that the requests for information from Dr. Bahl should be cleared through Mrs Betts. The tribunal considered that to be a reasonable and unobjectionable requirement. The appellants submit, and we agree, that it is difficult to understand why Mrs Betts would have acted in an unconsciously discriminatory way in respect of part of her conversation but not the other part. It confirms our conclusion that the tribunal erred in relation to this allegation in confusing unreasonable treatment and discrimination. The tribunal appears to have concluded that because it was reasonable for Mrs Betts to be the channel of communication between Dr. Bahl and the Society, it was an instruction which would have been imposed irrespective of the race or gender of the person complained about. By contrast, the tribunal appears to have reasoned here that because it was unreasonable to confirm the identity, then it must have been on grounds of race and sex.
220. Finally the appellants also submit that the tribunal could not properly have found on the evidence that there was any detriment. The detriment was said to be that at the time when the information was disclosed, Dr. Bahl might have had to work with Ms de Sa. Since Ms de Sa knew what the situation was in any event, it is said that it could not have been detrimental to Dr. Bahl. In addition, Dr. Bahl herself made public the fact of the complaint some two days later, and indeed it was then reported in the press. The tribunal found that Dr. Bahl had herself spoken to a journalist about the matter, and rejected her evidence denying this. In the circumstances it is said that she could not genuinely have been concerned about confidentiality in any event, and must have appreciated that matters would become public knowledge.
221. We see considerable merit in this argument. However, the tribunal has plainly concluded that there is a detriment to Dr. Bahl merely in Ms de Sa having confirmed to her that which she strongly suspected. On balance we consider that this was a conclusion open to it, albeit that on any view any detriment must have been of an exceptionally trivial nature.

Failing to alert the IEC that Andrew Hall's complaint was not validly made.

222. This complaint referred to the fact that on 15^th December Mrs Betts was called out of a meeting of the IEC which was at that time considering whether Dr. Bahl should be asked to stand down as Vice President during the investigation of her complaint. She was given what was described as a second complaint against Dr. Bahl, which had just been submitted by Andrew Hall. He was a former employee of the Law Society who had left on 8^th October 1999. The tribunal concluded that Mrs Betts was justified in drawing this matter to the attention of the IEC but that she probably recognised that the complaint was not valid. This was because Mr Hall was no longer and employee of the Law Society. The tribunal held that she ought to have alerted the IEC about this problem and they rejected her explanation for not doing so. This was that she had not appreciated at the time that the policy may not apply because she did not address her mind to the fact that Andrew Hall was an ex-employee.
223. We confess that we have a real difficulty with the premise here. It appears to have been assumed by the tribunal that Mr Hall's complaint (if and when he made one) could not properly be put before the Law Society. We are far from satisfied that that is a proper construction of the Dignity Policy. In this particular case Mrs Betts understood that Mr Hall left the Law Society because of the way he had been treated by Dr. Bahl. We think there is every reason as a matter of policy why serious allegations of harassment, which may (but did not in this case) include allegations of racial or sexual harassment, should be considered by the Law Society in those circumstances. We recognise, as Mr de Mello pointed out, that the policy is said to apply to all staff (see paragraph 2.1 of the policy). But we do not see why that does any more than limit its application to cases where a person is a member of the staff at the time of the alleged misbehaviour. There is every justification for adopting a construction of the Policy which merely requires that the infringement of the complainant's dignity should have occurred when the complainant was working as an employee, irrespective of whether he or she has now left the Law Society. The need to prevent future wrongdoing of a potentially serious nature would surely justify a proper investigation of such a complaint.
224. We do not resolve that particular matter but simply note that it is, in our view, far from self-evident that the premise behind the tribunal's finding is justified. The significance of this is that the tribunal's reasoning appears to be that since Mrs Betts must have appreciated that the complaint was invalid, then her explanation that she had given no thought to Mr Hall's status as an ex employee was not credible. The tribunal does not say in terms that her explanation was not genuine but that appears to be implicit when they say that she "would" have realised that it was invalid. If the premise is wrong, however, then the conclusion no longer holds. Since we take the view that the policy does not have the clear and unambiguous effect as the tribunal found – and its effect is a matter of law and not fact - then it follows that the inference that her explanation was untruthful cannot stand.
225. The tribunal also commented that even if she had not alerted the IEC to the fact that the complaint was not valid, she should at least have alerted them to the fact that the complaint had not been subject to the panel procedure. However, that must have been patently obvious in any event to members of the IEC since they knew that she had just been alerted to this complaint and it was brought before them in circumstances where there could have been in no doubt that it had not gone through any of the procedures. It would have been plain to anybody that there had been no proper investigation of it at that stage. It was hardly a matter that had to be drawn specifically to the Committee's attention. In our judgment it was not open to any tribunal properly instructing itself to conclude that the failure to take that step constituted discrimination on grounds of race or sex.
226. The appellants also contend that the inference of unconscious discrimination in this case is particularly surprising since although the tribunal found that Jane Betts was so influenced in not identifying the invalidity, it did not find that she was similarly influenced when making the decision to refer the matter to the IEC at all. We agree with Mr Goulding's submission that this suggests that the tribunal has again fallen into the Zafar trap; where conduct is reasonable, there is no discrimination, whereas if it is unreasonable, it is discriminatory.
227. Finally the appellants say that the findings of the tribunal themselves demonstrate beyond doubt that there was no detriment here. The tribunal found, and was entitled to find on the evidence before it, that the fact that the complaint was brought to the meeting at all did have an influence on the IEC. It lowered the tension and reinforced the view that something had to be done. Had the tribunal found that Mrs Betts had drawn it to the IEC's attention for a discriminatory reason, then potential detriment would clearly have been established. But the tribunal found that Mrs Betts would have referred the Hall complaint to the IEC regardless of Dr.Bahl's race or sex. It also found that once it was before the IEC, it was inevitable that it would be placed before Council. In the circumstances, therefore, the appellants submitted that there could in the circumstances have been no detriment arising merely from the failure to alert the IEC that the complaint from Mr Hall was invalid (assuming that to be correct) or had not at that stage been considered by the panel. Nor was any detriment identified in the tribunal's decision. We see no answer to this submission. Even given the very wide scope of detriment, it is difficult to see what it could be here.

Seeking information of the EOC

228. It is common ground that Mrs Betts did instruct Robin Lewis of Bindmans to make inquiries of the Union at the EOC to discover whether there had been complaints of bullying or harassment made against Dr. Bahl when she was Chair of that body. She denied that there were any complaints although in fact there had been, as she knew. The tribunal rejected Mrs Betts evidence that she had made this inquiry because she considered the Council may have been misled, it held that she made the inquiry in order to seek information which might be damaging to Dr. Bahl's case. The tribunal found that she had become actively involved in prosecuting the case against Dr. Bahl. The tribunal was in our view plainly entitled to conclude that this was what motivated Mrs Betts to obtain this information and not a disinterested attempt to discover the truth of the allegations. There is no doubt, as the tribunal found, that Mrs Betts was hostile to Dr. Bahl and had been extremely distressed by her conduct at various stages, including Dr Bahl's treatment of Mrs Betts herself. This was resented by Mrs Betts. These things may well have influenced Mrs Betts in her conduct.
229. The appellants' principal allegation here is that the tribunal drew an inference of discrimination that it could not properly draw in the light of all the evidence. We have already dealt with that submission. The appellants further submit that the tribunal's finding on this issue is particularly puzzling. The finding is that Mrs Betts deliberately sought to attempt to uncover damaging information against Dr Bahl, in circumstances where there was an obvious non-discriminatory explanation for such conduct (her hostility to Dr Bahl), and yet the tribunal has concluded that she was subconsciously influenced by considerations of race and sex. We agree that it is extremely difficult to see how, on the evidence in this case, the tribunal could properly draw the inference of unconscious discrimination in relation to this deliberately hostile act, when the conscious motivation for that act was clear.
230. In relation to this finding also it is alleged that there was no evidence of detriment. Mr Goulding submitted that it could not be a detriment to take steps to discover the truth. We do not accept that. If a person seeks to rake up aspects of someone's private life because he or she is black or a woman, that would in our view constitute a detriment for a proscribed reason even if it was only intended to make public true information. More significantly, however, the appellants say that in this case there was in fact no adverse consequence to Dr. Bahl. The information about complaints that was acquired was not in fact the subject of inquiry by Lord Griffiths. Moreover, the union, and by inference the employees, were aware of the fact that complaints had been made because they had referred in Mr Wallman's first complaint to that fact. It was alleged in terms that her conduct was part of a pattern stretching back to her time at the EOC.
231. Again, we consider that it is difficult to see any significant detriment, and it would have been desirable for the tribunal to have spelt out what it was. However, we cannot say that no detriment could have resulted. For example, it was open to the tribunal to conclude that the confirmation of the existence of these earlier complaints, with the attendant publicity flowing from that, might have some adverse consequences such as by widening knowledge of the earlier complaints. So might the fact that at this stage the tribunal found that Mrs Betts was working hand in glove with the MSF and the information might have strengthened the case against Dr. Bahl in some way. Had we not concluded that this finding was unsustainable anyway, we would have been inclined to send it back to the tribunal for it to provide fuller findings on this point.

The tannoy broadcast.

232. This allegation related to the tannoy announcement on 26 January inviting all members of staff (union and non-union alike) to attend the MSF meeting at 3 o'clock that day. The purpose was to discuss Dignity at Work. There is no dispute that Mrs Betts did authorise the meeting to take place in working hours. There is no complaint about that. The tribunal found, however that Mrs Betts was influenced by unconscious discrimination in allowing the announcement to be made in the terms in which it was. They found that although no reference was made expressly to Dr. Bahl, it would have been widely understood that the meeting was for the purpose of discussing and considering complaints against her because of the reference to the meeting being to discuss the Dignity at Work Policy. The tribunal concluded that Mrs Betts' motive in allowing the matter to be advertised by the tannoy was at least "questionable". They felt that permitting this meant that she was facilitating the making of further complaints.
233. Mrs Betts' explanation for permitting the broadcasting, as described by the tribunal, was that apparently she could see no good reason for refusing the request. The tribunal rejected that explanation. It is apparent from the evidence that has been shown to us that there is no basis for concluding that Mrs Betts had given permission for the tannoy broadcast, nor that she knew of its contents. She had given evidence to that effect which was not challenged in cross- examination and there was no basis for the tribunal to reject it. What Mrs Betts had said was that she could see no good reason for refusing the meeting. The tribunal has wrongly attributed her as giving this reason for allowing the tannoy announcement. The appellants submit that the tribunal's conclusions therefore cannot stand because they are inconsistent with the evidence. That must, in our view, be right.
234. Moreover, even if Mrs Betts could be held culpable in some way for allowing an announcement, on the basis perhaps that she could have used her authority to have prevented it, the complaint is not that the announcement was made but that there was a reference in it to "Dignity at Work" It is this which is alleged to have caused distress to Dr. Bahl. However, without seeing the announcement in advance, Mrs Betts could not have known that any express reference would be made to this. Assuming that she had known that the announcement was going to take place, there was no reason why she should have expected it to say anything more than the fact that the meeting was to take place at the appointed hour. All staff had been sent an email about the meeting, and in addition it was publicised within the union. The announcement was merely by way of a reminder. She could hardly have known that it would refer to Dignity at Work as opposed to saying, for example, "this is to remind you of the three o'clock meeting."
235. Accordingly, in our judgment there was no possible basis on which she could be held responsible for the content of the announcement, let alone be guilty of unconscious discrimination with respect to it. We would add that in any event she would have had to realise that it was potentially damaging to someone in Dr. Bahl's position for a reference to be made to the Dignity at Work Policy in the announcement. Otherwise she could not, even unconsciously, have thought that she was treating Dr. Bahl less favourably by allowing the announcement in this form. There was no evidence to suggest that she did see the significance of this, and nor do we think that it would naturally occur to anyone that the specific reference to the Dignity at Work Policy would be thought to have any significance at all. Indeed, it is relevant to note that Dr. Bahl's initial complaint was that she was personally mentioned in the announcement, but the tribunal found that that was not true.

Conclusions.

236. For all these reasons we consider that the tribunal has in a number of ways approached the issue of discrimination, both in relation to Mr Sayer and Mrs Betts, in an incorrect way. It has failed to take account of the obvious explanation for any detrimental treatment. Both Mr Sayer and Mrs Betts, for their own distinct and separate reasons, had reason to feel hostile toward Dr. Bahl. On occasions they have allowed their personal animosity towards Dr Bahl to distract them from their duty to act objectively and fairly towards her. But that is a far cry from establishing the very serious allegation that they have discriminated on grounds of race and sex. In addition, the tribunal has made findings of discrimination where no proper evidential basis for it exists; and it has inferred in some cases that unfair and unreasonable treatment alone is evidence of discrimination.
237. We do not think that the tribunal has in truth stepped back to consider the implications of its conclusions, notwithstanding that it has expressly stated that it looked at the totality of the matter. Of course, it is possible that someone may discriminate in relation to a particular disciplinary process in certain respects but not in others. But if there is unconscious discrimination operating, one would not expect it to surface in such an apparently arbitrary and piecemeal way. The tribunal has not considered why these discriminatory motives would have influenced some decisions but not others.
238. Accordingly we uphold the appeals, and discharge the findings of discrimination against each of these appellants.

The out of time challenge.

239. All save two of the incidents in respect of which the appeal was lodged were made out of time, albeit only by a short period. The tribunal considered the submission that it should not extend time but rejected it. It noted that Dr Bahl had consciously chosen not to raise issues of discrimination before Lord Griffiths, that the delay was only slight, had created no real prejudice to the appellants, and had not been gravely culpable. It also commented that "were we to refuse to extend time to determine these allegations our findings would not fairly reflect the totality of the case."
240. Mr Goulding argued that the tribunal has wrongly exercised its discretion. It did not give sufficient weight to the fact that Dr. Bahl had deliberately decided not to raise the issue of discrimination before the Griffiths inquiry, and it was wrong to take into account that unless it extended time, the whole of the case would not be properly and fairly considered.
241. We reject those submissions. It is well established that a tribunal has a very wide discretion in this area and is entitled to consider anything that it considers relevant: Robertson v Bexley Community Centre [2003] EWCA Civ 576; [2003] IRLR 434. Moreover, as that case confirms, this Tribunal can only interfere with the exercise of discretion if it is plainly wrong and there has been some error of law or principle. Other tribunals may indeed have attached more significance to the fact that Dr. Bahl was choosing for tactical reasons not to pursue her discrimination claims earlier, but we cannot say that this tribunal erred in law in exercising its discretion in the manner in which it did. It gave a cogent explanation for its conclusion. Accordingly, this aspect of the appeal fails.

The cross appeal.

242. As we have already indicated, three of the four grounds in the cross appeal were not pursued at the hearing. Mr de Mello did not pursue the remaining ground with any great enthusiasm, as he in terms acknowledged. He recognised the difficulty of seeking to uphold the tribunal's findings in relation to all its other findings of discrimination whilst submitting that the tribunal had erred in finding unconscious discrimination when it ought to have found deliberate and conscious discrimination.
243. Since we have found that there is in fact no proper basis for inferring discrimination at all, the issue does not strictly arise. In any event, we think that it could not have succeeded even had we been minded to uphold the tribunal's findings of unlawful discrimination. First, we accept the submission of Ms Simler that we have no jurisdiction to hear the appeal given that the challenge is to the reasoning of the tribunal and not to any order of the tribunal itself. The cross appeal is premised on the grounds that the tribunal reached the right conclusion but for the wrong reason. There is essentially the same difficulty here as with seeking to challenge the finding of lies which we have considered above (see para.14) Second, in respect of certain of the tribunal's findings, it is difficult to see how it could have found conscious discrimination. For example, in those cases where the tribunal has found that the appellants genuinely believed that there was a non-discriminatory reason for the alleged discriminatory treatment, the only basis for rejecting that reason as a complete answer to the discrimination charge is that there was nonetheless unconscious discrimination. Moreover, the reliance on the use of inappropriate language supports the finding of unconscious discrimination.
244. That would not prevent a finding of deliberate and conscious discrimination in those cases where the tribunal rejected the explanation given by the individual appellants. Indeed, as we have noted, there are certain findings of discrimination, such as in relation to deliberately pursuing inquiries with the EOC, where if there has been discrimination at all then it would more naturally appear to have been direct rather than indirect. However, even there the tribunal could justifiably conclude that there was no reason to assume that the discrimination would be conscious in some cases and unconscious in others. Assuming that we had the power to interfere with this finding at all, it could be only on the basis that there was no evidence to sustain this conclusion. In circumstances where there was an obvious non-discriminatory reason for the treatment, it was plainly open to the tribunal, assuming that it had correctly found any unlawful discrimination, to conclude that any such discrimination was unconscious.

Summary.

245. We recognise that Dr. Bahl feels aggrieved by aspects of her treatment. She is obviously a woman of exceptional skills and talents which, effectively harnessed, could make a significant contribution to any organisation. She may with some justification feel that neither Mr Sayer nor Mrs Betts gave her the support they might have done and arguably ought to have done. They- and particularly Mrs Betts- became actively involved in seeking to prosecute the case against her and indeed ultimately Mrs Betts herself formally complained about Dr Bahl's conduct. Mrs Betts had understandably been upset by Dr. Bahl's behaviour and its effect on her staff, and felt her position being undermined. As a consequence, as the tribunal's decision shows, she did not at all times maintain the professional detachment that her position required. We are, however, satisfied that there is no proper basis for concluding that she was treating Dr. Bahl less favourably because of Dr. Bahl's race or sex. Similarly, there is even less justification in the light of the evidence for imputing such improper discriminatory conduct to Mr Sayer.

We uphold the appeals in this case and overturn the findings of unlawful discrimination against each of the individual appellants, Robert Sayer and Jane Betts. It follows that the liability of the Law Society also falls away.

We dismiss that part of the appeal which sought to challenge the tribunal's decision to extend time; and we also dismiss the cross appeal.