United Kingdom Employment Appeal Tribunal

APPEARANCES

EATS/0083/03

 

For the Appellants	Ms A Jones, Solicitor Of- Messrs Maclay Murray & Spens Solicitors 3 Glenfinlas Street EDINBURGH EH3 6AQ
For the 1st Respondents For the 2nd Respondents	Mr A Strain, Solicitor Of- Messrs Biggart Baillie Solicitors 7 Castle Street EDINBURGH EH2 3AP Miss H Craik, Solicitor Of- Central Legal Office Trinity Park House South Trinity Road EDINBURGH EH5 3SE

APPEARANCES

EATS/0084/03

For the Appellant	Mr A Strain, Solicitor Of- Messrs Biggart Baillie Solicitors 7 Castle Street EDINBURGH EH2 3AP
For the 1st Respondents For the 2nd Respondents	Miss H Craik, Solicitor Of- Central Legal Office Trinity Park House South Trinity Road EDINBURGH EH5 3SE Ms A Jones, Solicitor Of- Messrs Maclay Murray & Spens Solicitors 3 Glenfinlas Street EDINBURGH EH3 6AQ

SUMMARY

STARRED JUDGMENT

1. Employment Tribunal Chairmen should always number the paragraphs of their decisions and use consecutive paragraph numbering in doing so (and with as few subparagraphs as possible, but if using such should continue the main paragraph number e.g. 12.1, 12.2 etc).

2. Employment Tribunal failed to comply with Zafar and Bahl in finding direct (while rejecting indirect) race discrimination and without setting out and rejecting non-discriminatory justifications: remitted to fresh tribunal: Applicant's cross-appeal on quantum dismissed.


 


THE HONOURABLE MR JUSTICE BURTON (PRESIDENT):

1.             This has been the hearing of two appeals against the unanimous decision of the Employment Tribunal at Dundee, after a hearing which lasted 6 days in October 2002, 4 days in March 2003 and 3 days in May 2003, by which it reached certain decisions in respect of a claim by the applicant doctor, Dr Goyal, against various entities of his fellow doctors and Health Boards.
2.             Before we turn to the substance of this case, we wish to take the opportunity in relation to this case to deal with general matters of some importance to practitioners.
3.             The first matter is a plea to those considering a change of the Employment Tribunal Rules that if, indeed, it is to be concluded that the title of those who apply to an employment tribunal making a claim is to be changed from applicant to claimant, which will assimilate to the name used, at any rate in English civil courts, for what used to be called a plaintiff and is now called a claimant, the opportunity be taken also to change the name of those who resist such claim to defendant from respondent. In Scottish courts, as we understand it, the title "defender", and in English courts "defendant", has been for many years the usage for those who are resisting a civil claim. In criminal courts, the name "defendant" is sometimes used, or, if a pejorative term is sought, then the ordinary word is "accused", but in civil claims, where there are pursuers or claimants, it is entirely understood that the person against whom the claim is made is a defendant or defender (and no change was made to that when the name "plaintiff" was changed to "claimant" after the Woolf Inquiry). There is thus nothing to be said in favour of the title "respondent"; "defendant" is perfectly normal in all civil proceedings and, indeed, there is thereby an unnecessary distinction made between someone who is the subject matter of a claim in an employment tribunal and someone against whom a claim is made in any other civil court, or, indeed, as we understand it, any other tribunal.
4.             The problem arises, which is exemplified here, that in the tribunal below there was an applicant and 5 respondents. It is traditional in all courts that, so far as the nomenclature of appeals is concerned, the person making the appeal is an appellant and the person resisting the appeal is a respondent. Here, of the 5 people or bodies who were the respondents below, one, namely, the third respondent, is now an appellant and, one, namely, the second respondent, is now a respondent, whereas the party which was an applicant below, is now a respondent to one appeal and an appellant in the other. This is just an example of a situation in which it would have been so much simpler to have the term "claimant" and "defendant" in the court below and "appellant" and "respondents" in the appeal court, and we very much hope that this kind of complication is avoided by a change of nomenclature. It is not simply a question of what is used in a document, it is a question of how the parties are referred to most simply, whilst also keeping in mind what role they play at each stage, both in the course of argument and by the appeal court in giving its judgment.
5.             There is, however, a further matter with which we wish to deal in this judgment, which is particularly exemplified by this case, and which is aimed with considerable emphasis at Chairmen of employment tribunals throughout the United Kingdom. The decision of the Employment Tribunal in this case was 54 pages long. There were no paragraph numbers. That, as we understand it, is, at present, the practice of most employment tribunal Chairmen in Scotland. It is not the practice of tribunal Chairmen in England, to whom I will return later in this judgment. We have, for the purposes of this appeal, numbered the paragraphs into which, naturally enough, this judgment was broken up, ourselves, and there are 138 paragraphs. We implore, direct, and so far as we can, order, employment tribunal Chairmen please to use paragraph numbers in future.
6.             Why it is so significant in relation to a lengthy decision, such as this, is that, without paragraph numbers, the parties find it far more difficult to identify those parts of the Decision, in their Notices of Appeal or in skeleton arguments, to which particular attention is drawn. They have to refer to a page or page numbers, and, where there are line numbers, to line numbers, and, very often, that carries with it no degree of ease of understanding or recollection. If, however, they are able to say, in such a document, that the nub of the Decision, or of the complaint, is in paragraph 112, or that there is an inconsistency between paragraphs 69 and paragraph 103, or that the conclusion in paragraph 156 ignores the facts set out in paragraphs 28 and 74, then much greater ease of understanding and recollection of the case is achieved, not to speak of what occurs when there come to be oral arguments before a tribunal, and, in due course, the judgment of the tribunal. We do ask, therefore, that in future, Chairmen enable that kind of clear perception of their decisions to be carried out by reference to paragraph numbers.
7.             It is particularly significant here, where, long as the Decision was, in fact, on analysis - given that only two of the respondents feature in the two appeals, and that there are a number of findings made by the Tribunal which are not appealed, (not only findings in which the applicant was unsuccessful, but also unappealed findings against some of the other respondents - it can be shown that not all the paragraphs of the decision are relevant at all; and it has been possible, again only by dint of a good deal of extra work for this Tribunal, to identify, having first numbered the paragraphs by hand, which paragraphs, so numbered, feature at all in these two appeals, and it is not many. That extra work is avoided (and of course the parties would then be all working off the same numbering, without the need to agree it), if the numbering has been done by the Chairman.
8.             We said we would refer to the English position, where paragraphs numbers are given as a matter of course, because there is something that we would like to take the opportunity also to say in relation to those decisions where paragraph numbers are used, in England, and, no doubt, hopefully now also in Scotland. We would also urge that there not be the practice, which is quite frequent, in relation to those decisions where paragraph numbers are used, to run into massive numbers of sub-paragraphs and sub-sub-paragraphs. That not only leads to a lack of understanding of where one has reached in a decision, but also very often to some scrabbling around, in lengthy decisions, to discover of what paragraph sub-paragraph (lxxix), or sub-sub-paragraph (zz), forms part; and we would therefore urge that the paragraph numbering adopted be consecutive paragraph numbering; and whereas it is very often helpful if particular paragraphs are broken up into sub-paragraphs, that should not happen on any kind of lengthy or protracted basis, and, if it does happen, should be enumerated by using the numbering 12.1, 12.2, 12.3, 12.4 etc for the duration of the relevant paragraph.
9.             Against that background, we turn to consider this lengthy Decision, and, having numbered the paragraphs, it can be seen that the nub of it, long as it was, so far as concerns the appeal brought by Kirkcaldy (the third Respondent below and first Appellant before us), is in two paragraphs, paragraphs 117 and 118. The facts are very brief, albeit they are set out in the Decision at paragraphs 23 to 59, so far as concerns this appeal. There is, now, fortunately, a system whereby doctors team up together in co-operatives which enable them to deal efficiently and sensibly with out of hours requirements of patients, on a basis fair to the members of the co-operative, and those doctors practising in more central conurbations began, in the 1990s, to collect together in such co-operatives.
10.         It became apparent by the end of the 1990s that this was a mechanism which was more easy to apply to those in the centre of conurbations, and there was a risk that medical practices on the fringes of urban areas and out in the country were much less able to participate in such co-operatives. A number of such co-operatives formed the subject matter of the claim before the Tribunal here: The Kirkcaldy Out of Hours GP Co-operative, the third Respondent, and the Glenrothes Out of Hours GP Co-operative and the West Fife Out of Hours GP Co-operative, who were fourth and fifth Respondents, against whom claims were made by the applicant which were dismissed.
11.         We have the constitution of the Kirkcaldy Co-operative in our papers, being its Articles of Association, which were prepared when the Co-operative was first founded in 1996, and, not surprisingly given its name, The Kirkcaldy General Practitioners Co-operative Association, it was part of the interpretation section that ""person qualified for membership" means a person who is a general medical practitioner in the medical list of the Fife Health Board, working within the area of Kirkcaldy district". There were no doubt similar provisions in the Articles of Association of the other Co-operatives.
12.         There were, however, a number of very small practices of doctors, to which we have already referred, which were not part of any co-operative, and, in a paper regarding Out of Hours Co-operatives, prepared in late 1996 by a Dr McBurnie, who gave evidence before the Tribunal, and holds or held an administrative position within the National Health Service, he wrote as follows:-

"There remain a number of practices that have not yet been given the opportunity to join GP co-operatives. This is patently unjust and contrary to … intentions."

13.         In a further paper drafted in early January 1997, Dr McBurnie, as is set out in paragraph 114 of the Tribunal's decision, raised the practices in Burntisland, Kinghorn and Cardenden by way of example, which at that stage had not been included in any co-operative, and, once again, he recited that it was

"unreasonable for co-operatives to exclude small practices on their peripheries".

14.         Leaving aside the Applicant's quite separate complaint against the second Respondent, the Fife Health Board, which was in part successful and in part unsuccessful, and was not, subject to a matter of quantum (to which we shall turn), the subject of consideration by us, his complaint before the Tribunal was against Kirkcaldy, and the other Co-operatives, on grounds of direct, alternatively indirect, race discrimination. The Applicant is of Indian or Asian origin, as it seems were also his fellow doctors within the relevant practice in Cardenden, although they have not brought any claims.
15.         The claim for both direct and indirect discrimination was based, it seems, upon the policy adopted by all the co-operatives to limit their membership qualification in the way that we have described. There was a hearing of a preliminary issue before the Employment Tribunal, chaired by the same Chairman but with a different constitution, on two days in August and three days in December of 2001, relating to the issue of statute bar or time limitation, and it is apparent that it was at such policy that the claim, be it direct or indirect, was directed. Once again that interlocutory Decision has not been given paragraph numbers, and we have not, we are afraid, done the same exercise in relation to what is also their relatively long decision of 19 pages, but the concluding paragraph of the Decision reads as follows:-

"It is not disputed that each of the third, fourth and fifth respondents operated a clear policy which excluded the applicant's practice in Cardenden from membership of those out of hours co-operatives since Cardenden fell outwith the geographical boundaries set by each of those three respondents. We are in no doubt, therefore, on the basis of the principles set out in Cast [which is a reference to the decision in Cast v Croydon College [1998] IRLR 318] that there was a " policy, rule or practice, in accordance with which decisions are taken from time to time…" with the result that this was an "…act extending over a period…."the final consequence of which is that the applicant's originating application is timeous. In reaching that decision, we have, in case we have not so far made it sufficiently clear, concluded that…there has been ongoing consideration by the third, fourth and fifth respondents of those applications up to, and indeed beyond, the date the originating application to this tribunal was presented."

16.         In fact, when the case came on to the hearing, as we have indicated, the claim for indirect race discrimination was rejected as against all three respondents. The basis on which the case was rejected as against the third respondent, Kirkcaldy, is set out in paragraphs 128 through to 136. This involves a careful analysis, given the admitted existence of the geographical limitation, to see whether that geographical limitation had an undesirable racial effect, and it involved an analysis of the figures relating to ethnicity of the excluded and included practices, and, in particular, so far as the Kirkcaldy Co-operative is concerned, it was concluded, in paragraph 133, that 3 out of 9 Indian doctors could comply with the relevant requirement and 36 out of 240 non-Indian doctors could comply, whereas prior to 1998, when two additional practices joined it (to which we will refer later), Kinghorn and Burntisland, the position was that 2 out of 9 Indian doctors could comply and 38 out of 240 non-Indian doctors. This, incidentally, establishes the fact, contrary to other parts of the Decision where this fact seems to have been forgotten, that there was an ethnic element to the practice membership in Kinghorn and Burntisland. But on that basis, and on the basis of other findings by the Tribunal, the claim of indirect discrimination failed.
17.         The claim also failed so far as it concerned direct race discrimination by the other Co-operatives. Although it was pointed out that the specific link between Cardenden and Kirkcaldy was that there was, it seems, what was called a "drain" naturally from patients in Cardenden to the Kirkcaldy hospitals, rather than to Glenrothes hospital or the Dunfermline hospital, geographically there was little to choose between the proximity of the Cardenden practice to the Glenrothes and to the Kirkcaldy Co-operatives; and, certainly Dr McBurnie's criticisms, in the papers to which we have referred, was of all three of the Co-operatives in relation to their failure to include the outlying practices. Nevertheless the Tribunal rejected the claim against the fourth and fifth Respondents, while upholding it against the third Respondent.
18.         The three potential incidents which could be said to amount to a trigger for a claim, subject always to what appears to have been the conclusion in the interlocutory preliminary decision, to which we have referred, were:-

(i)             The original setting up of the Kirkcaldy Co-operative in March 1996.

(ii)           The moment in February 1998 when the Kirkaldy Co-operative added Burntisland and Kinghorn but did not add Cardenden, and, then

(iii)          the period subsequent to February 1998, until the originating application was issued in 2001, when, although there was no specific application to join by Cardenden, it is apparent that the co-operatives, and all of them, knew that Cardenden wished to join, and, were, it seems, at any rate so far as Kirkcaldy is concerned, still leaving open the possibility that there might be, at some stage, a reconsideration.

19.         The finding by the Tribunal does not identify - leaving aside the reference, in the interlocutory decision (which was not expressly incorporated in its final decision), to a continuing policy - which, if not all, of these three incidents, formed the basis of the Tribunal's findings of direct discrimination. However, in paragraph 119 to 120, when the sum of £12,000 is quantified in respect of the compensation for direct discrimination awarded in favour of the applicant against Kirkcaldy, interest is then concluded to run, without explanation, from the date of the applicant's first application to join the Kirkcaldy Co-operative on 21 November 1996. This would certainly be consistent with an implicit finding that such policy is at the foundation of the findings of the Tribunal, albeit only triggered from the date of the first application. But what this does mean, although, as will appear, there was no specific finding by the Tribunal in relation to either what the act of discrimination was or when it took place, and how it was that racial grounds for this discrimination are to be found, or inferred, is that it post-dated the original formation of the Co-operative, and continued upon, and after, the agreed admission of Burntisland and Kinghorn.
20.         So far as the February 1998 addition of Burntisland and Kinghorn is concerned, the findings of the Tribunal are not very full, and in paragraph 117 the Tribunal recites this:-

"Unlike the case of direct discrimination made out against the second respondents [that is Fife] the applicant here cites a direct comparator, namely the Burntisland practice in which all the doctors were white and British. Why, asks the applicant, did the Kirkcaldy Co-operative enter into negotiations with Burntisland, and indeed Kinghorn, at a comparatively early stage, even though the distance from Burntisland to Kirkcaldy is about the same as that from Cardenden to Kirkcaldy and even though there were more doctors in Burntisland than Cardenden? The only explanation given in the course of the evidence was that there were "historical links" as between Kirkcaldy and Burntisland which did not exist with Cardenden. No explanation was ever tendered about what was meant by "historical links" or what they were and we have no hesitation in concluding that the applicant has established, to our satisfaction, that he was treated less favourably by the Kirkcaldy Co-operative than the Burntisland practitioners.

21.         So far as the admission of Burnisland and Kinghorn is concerned, that is not a full summary of what occurred. It is plain from the documents we have seen that there was a very real connection between Kirkcaldy and Kinghorn, by way of shared patients, and that there was then a very real connection between Kinghorn and Burntisland, and there was, at any rate, a suggestion made at the time that Burntisland's financial fragility was such that it could "die" if it were not admitted. It was accepted by Dr McBurnie, it appears, in evidence, that it was more justifiable or more understandable that the Kirkcaldy Co-operative should have admitted Burntisland and Kinghorn than Cardenden; but his belief was that, while the Kirkcaldy Co-operative was swallowing Burntisland and Kinghorn, it ought also to have taken on Cardenden, whereas the case, not addressed in the Tribunal's Decision, put forward by Kirkcaldy, was that it was difficult enough to persuade its members to take on Kinghorn and Burntisland without, at any rate at that stage, also having to take on the additional responsibility for Cardenden.
22.         As far as the racial mix is concerned, as we have already indicated, the Tribunal itself, in analysing the indirect discrimination, appreciated, it seems, that Burntisland and Kinghorn together did indeed have an Asian element, but that appears to have been overlooked by the Tribunal in addressing the position so far as direct discrimination is concerned. In paragraph 42 the Tribunal said:-

"The doctors in the Burntisland practice, who numbered more than in Cardenden, were all white and British."

That is correct; however such is not the case so far as Kinghorn is concerned, which, as is clear from the papers before us, as, and, indeed, on the finding in relation to indirect discrimination to which we have referred, included at least one Asian and, we think, also other ethnic doctors. The matter is returned to by the Tribunal at paragraph 108, when the Tribunal says this:-

"The co-operative have chosen to take in the Kinghorn and Burntisland practitioners which is the same distance away from Kirkcaldy as Cardenden and they were all white British."

Whereas the statement in paragraph 42, and a similar statement in paragraph 117, so far as it relates to Burntisland, is accurate when it says that all the doctors were white, as we have indicated, it is not accurate to say that all the Kinghorn and Burntisland practitioners are white British, because that was not the case in relation to Kinghorn.

23.         It may be that this misunderstanding by the Tribunal featured in its conclusion as to there being a racial element with regard to the decision in February 1998 to admit Kinghorn and Burntisland but not Cardenden. But the greater problem, to which we shall turn in a moment, is the complete absence of any apparent reasoning by the Tribunal in the nub of its Decision, in paragraph 118. Certainly, so far as the period after February 1998 is concerned, when it appears that there were no continuing comparators – indeed a suggestion was made by the Respondents before the Tribunal that, if there were any comparators, they were white and were similarly treated – there was no evidence of any continuing effect of ethnicity on any alleged decision or failure to make a decision. Such post-February 1998 period plainly formed a continuing part of the Tribunal's decision, and, indeed, was necessary in order to justify the finding of continuing direct discrimination, because otherwise, had it not continued after February 1998, the claim would have been statute-barred.
24.         We turn then to the basis on which the Tribunal reached its conclusion. Leaving aside the possible explanation arising out of what occurred in February 1998, with its apparent clear misunderstanding of the facts by the Tribunal, the nub of the case, it would seem, would be that, in relation to the policy, which extended from 1996 through to the original originating application, of limiting the geographical ambit of this Co-operative and excluding Cardenden, there was direct discrimination, because the explanations given by the respondent for that basis of exclusion was unjustifiable: not because it was indirectly discriminatory - indeed, as we have indicated, the third Respondent was acquitted of indirect discrimination - but because it was directly discriminatory.
25.         The whole of the reasoning of the Tribunal, in relation to what we have indicated was a lengthy Decision, though it did deal with so many other claims that the Tribunal also had to resolve, is contained in paragraph 118, which we now read:-

"The next stage is for us to consider whether the reason for that treatment was racial and not something else. Here, we were impressed with the evidence of Dr McBurnie – he had absolutely no axe whatever to grind in these proceedings but his views about the applicant's exclusion from the Kirkcaldy Co-operative were both cogent and forceful. His view was that the exclusion of Cardenden was, to use his word, without "justification". Dr McBurnie was never seriously challenged on behalf of the third respondents in regard to that view, and in our opinion, following the guiding principles set out in King (and that is a reference to King v The Great Britain-China Centre [1992] ICR 516) which we have set out in our decision in relation to the Support Panel issue, in the absence of any sound non-discriminatory reason for the applicant's exclusion from the Kirkcaldy Co-operative, we consider that the tribunal is entitled to infer that the reason was on the applicant's racial grounds. As the applicant put it, there had been no effort to include him and his colleagues because of their race. In reaching the views which we have, we were unimpressed by the assertion made by Miss Jones that the applicant's Cardenden colleagues had not lodged tribunal applications nor had they given evidence on behalf of the applicant. The applicant's position in that regard was that they were too concerned about their respective positions so to do and that we understand is a common feature of race discrimination. Nor do we consider that the fact that the application was only lodged in July 1999, shortly after the Support Panel issue arose, is of any great significance in deciding the matter which is before us. Moreover, we disagree with Miss Jones's submission that the only possible comparators were the Kinross GP's who were all white. There was never any question that they could have joined the Kirkcaldy Co-operative – they made no attempt to do so, and in relation to the one co-operative to which they were invited to initial exploratory meetings, namely WEFDOC, [this is a reference to the West Fife Co-operative, which was the fifth Respondent] they were not, as Miss Jones put it, excluded – rather they voluntarily withdrew from any further communication.

And then the Tribunal concludes this central paragraph as follows:-

"We agree with Mr O'Carroll [who was Counsel for the Applicant], that the Kirkcaldy Co-operative, have failed to show any sound reason for refusing to accept the applicant and his colleagues into their co-operative. We agree with him that no rational process was followed by the Kirkcaldy Co-operative in making their decision and we agree with him that the decision is indefensible on rational grounds. The Kirkcaldy Co-operative chose to take in the Burntisland practitioners all of whom are white and British.

We have indicated already, above, the misunderstanding in that regard, or, at any rate, at its lowest, the partial accuracy of that statement:-

"There is accordingly a difference in treatment and in the absence of a sound reason for that difference, we shall find that the applicant has established his case of direct discrimination against the third respondents in terms of section 1(1)(a) of the 1976 Act."

26.         Ms Jones, who has again appeared before us, in her eloquent and lengthy written submissions, which rendered it unnecessary for her to expand orally in any great detail, emphasised a number of matters. First, she emphasised that the Tribunal has not identified what the discrimination was - whether indeed it was the policy throughout the entire period or whether it was the failure to admit in November 1996, or whether it was the failure to admit when the Co-operative admitted Burntisland and Kinghorn in February 1998, or whether it is any continued resistance to Cardenden's joining thereafter - and, in particular, whether the discrimination which the Tribunal finds was conscious or unconscious. She refers to the very helpful and clear decision of Elias J in The Law Society and Others v Bahl [2003] IRLR 640, in which he indicates the importance of a tribunal's making clear whether, and making the necessary findings to establish it if, a tribunal has concluded unconscious discrimination (see paragraph 120 of his judgment), because, indeed, of the importance, which he points out in paragraph 84 of his judgment, of the tribunal's identifying, in determining whether there has been direct discrimination, in all save the most obvious cases, what was in the mind of the alleged discriminator.
27.         But the nub of Ms Jones's submission, put against that very important background, is in relation to the exiguous nature of the Tribunal's conclusions set out in paragraph 118. It would appear that, with the possible exception of the reference, mistaken as it appears to have been, so far as precise facts are concerned, to the events of February 1998, the case was entirely based on the inference to be drawn from the treatment of the Applicant and his practice which Dr McBurnie regarded as unreasonable treatment.
28.         It is, of course, essential for tribunals to appreciate, and, this one plainly did, by reference to King and to Glasgow City Council v Zafar [1998] ICR 120 and other well-known cases, that it is rare indeed for direct racial discrimination to be capable of being identified by reference to express racial pointers. We all believe nowadays, and hope, that we are not racialist, and, absent unconscious racial discrimination, which may have been the basis of the conclusion here by the Tribunal (but, as we have already indicated, no such clarification was given by it) even conscious racial discrimination ordinarily requires to be teased out by reference to facts or factors to be derived from primary facts, rather than identified by reference to some document or particular piece of evidence. Therefore, this was a necessary exercise for this Tribunal to carry out.
29.         However, the words of Elias J in Bahl, which of course would not have been before this Tribunal when it reached its decision, but which, though a clear exposition of the law, contain nothing which is new, must be borne in mind, where it is sought to rely on unreasonable treatment by an employer or alleged discriminator in order to establish a case of direct race discrimination without any specific racial pointers.
30.         We have already referred to paragraph 84 of his judgment, as to its being necessary, in all save the most obvious cases, for the tribunal to discover what was in the mind of the alleged discriminator. However at paragraph 93, by reference to Zafar, Elias J emphasises that "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". In paragraph 97 Elias J said as follows:-

"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."

In paragraph 98, Elias J firmly says this:-

"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 ration of Zafar and that decision remains unaffected by Anya." [Referring to Anya v University of Oxford [2001] IRLR 377.]

At paragraph 99 Elias J says:-

"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."

And then at 100 he said this:-

"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."

And then at 101:-

"The significance of the fact that the treatment is unreasonable is that a tribunal will more readily in practice reject the explanation given that 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."

31.         We return to what we have described as the exiguous nature of the reasoning in paragraph 118, and Mr Strain, the solicitor acting before us today, for the Applicant as respondent, has not been able, despite his very best efforts, to contest the suggestion of such exiguousness and of the absence of such reasoning.
32.         The Tribunal does not recite the explanations, which were in fact given in some detail, as is apparent not only from some parts of the conclusory paragraphs of the Tribunal's decision but also its factual paragraphs, and the documents to which it refers. Those included the following:-

32.1. Geography. The starting point was the geographical nature of the limitation on the Co-operative, to which we have referred, in the Articles of Association. That geography was justified by problems of transport and patient access. So far as the joinder in 1998 of two ungeographically convenient practices, that was explained, as we have indicated, coupled with the fact that if Kirkcaldy was to assimilate those two it was not to be expected that, at any rate immediately, a third non-geographically convenient practice was also to be allowed to join, particularly if there were other Co-operatives to which that practice was also making application and which were not greatly more, and in some cases, equally, geographically inconvenient.

32.2. There was evidence given in relation to the nature of the Cardenden patients, as being more demanding, by reference to the time taken to service them, and the inadequacy or unsatisfactory nature of the existing out of hours arrangements.

32.3. There were questions raised as to the adequacy of the treatment of the existing patients.

33.         Whether or not those explanations were good (and Dr McBurnie plainly thought they were not), if they were to be rejected by the Tribunal - not only because they were not a sufficient explanation for the exclusion by this Co-operative, as by the other Co-operatives, of this particular practice, at any rate, perhaps, after February 1998, but certainly if the very inadequacy of such explanation for the unreasonable treatment of Cardenden were to form the basis of an inference that, absent those explanations and indeed because of their inadequacy, there was consequently a racial basis for the rejection - there was required to be such a finding by the Tribunal. This is particularly so in the light of the decision in Zafar, which was so forcefully re-emphasised subsequently in Bahl, that unreasonable treatment of itself is not sufficient. Plainly, if no explanation is given, then that might cast doubt upon the motives for the unreasonable treatment and, if some explanation is given, as Elias J explains, the very giving of that explanation, and its nature, might of itself give rise to inferences. But per se unreasonable treatment is not sufficient.
34.         This Tribunal does not set out the reasoning of the Kirkcaldy Co-operative. Does not explain why it rejects the reasoning. Does not explain why it agrees with Mr O'Carroll that Kirkcaldy had failed to show any sound reasoning or that no rational process was followed or as to why the decision was indefensible on rational grounds. But, even apart from the inadequacy of its dealing with that issue, it certainly does not deal with the consequence of that conclusion and why it comes to the view, as a result of the inadequacy, if such it was, of the explanation for the alleged unreasonable treatment, that the only available inference to be drawn, or, at any rate, the inference to be drawn on the balance of probabilities, is that the reason why this Co-operative, as opposed to the other Co-operatives, rejected the approaches of this particular practice, was on racial grounds. This notwithstanding the clear and well-reasoned rejection of the claim for indirect race discrimination. We are entirely satisfied that the Tribunal erred in law in its approach and that its decision cannot stand.
35.         The consequence, Ms Jones submits, is that we should substitute our own decision that there was no direct race discrimination, any more that there was indirect race discrimination. She accepts that that can only be done if we are satisfied that, on the findings of fact here made, no reasonable Tribunal could come to a conclusion that there was direct discrimination, and, thus, that there would be no point in sending this back for a further hearing. She submits that there is no indication to be found anywhere of any racial grounds for the fact that the Kirkcaldy Co-operative, like the other Co-operatives, did not expand, when requested, to include the Cardenden practice. She points to the passage to which we have referred in Bahl which, at paragraphs 93 and 98, makes it clear that a tribunal is not entitled to draw an inference of discrimination from the mere fact that the employer has treated the employee unreasonably, and to the extent that a tribunal found discriminatory treatment from unreasonable treatment alone, its reasoning would be flawed, and the finding of discrimination could not stand. She submits that, given that all that this Tribunal found was unfavourable treatment, it cannot have made a finding of race discrimination, and no reasonable tribunal could do so either.
36.         Mr Strain, however, argues, while finding it difficult, as we indicated, to justify the reasoning of this Tribunal, nevertheless that the unexplained reasons for which it rejected the unaddressed nature of the justifications put forward by Kirkcaldy for exclusion of Cardenden, might, before another tribunal, found an inference of direct race discrimination. The Tribunal did not explore those explanations; they simply concluded that they were indefensible on rational grounds, but another tribunal might draw the conclusion which this Tribunal did not do, and he reminds us of the difficulty of pinning down or identifying racial grounds, and the difficulty of the task of any Tribunal in drawing inferences where there is no such evidence, as he accepts is the case here.
37.         We have found this a difficult decision, and we are particularly concerned that there was here a 13 day hearing such a long time ago, but we do not find ourselves able to say that no reasonable tribunal, if properly directed, and following the guidance so carefully given by Elias J in Bahl, with which we expressly associate ourselves, could, notwithstanding there being no indirect race discrimination, and notwithstanding the acquittal of the other co-operatives, and notwithstanding the error which appears to have been made in relation to the February 1998 events, draw the inference which Mr Strain requires to establish race discrimination. We are comforted to an extent that, although we shall remit this to a different tribunal which will require, of course, that evidence will have to be given from scratch, the hearing cannot possibly take so long this time round, because the issue will be a relatively short one. It will not involve indirect race discrimination, which always takes a great deal more time, and will not involve any of the other Respondents, or the cases against any of the other Respondents, and this will, therefore, be a matter in respect of which the new tribunal can concentrate wholly on the position of the third Respondent, whereas we suspect that the Tribunal may have taken its collective eye off the ball in relation to the case against this Respondent when dealing with so many other matters, as it did in this lengthy Decision. To that extent, therefore, the appeal by Kirkcaldy, is allowed and this will be remitted to a different employment tribunal for the issue of race discrimination to be reheard.
38.         So far as concerns the appeal by Dr Goyal, the Applicant, this is only in respect of quantum and it is an appeal brought, both against Kirkcaldy and against the Fife Health Board, for whom Miss Craik appears today, on whom we have not called, and which itself did not appeal the finding of race discrimination made against it by the Tribunal. The basis of the appeal by the Applicant was that the Tribunal only awarded, as against both Respondents, Kirkcaldy and Fife, a sum in respect of injured feelings, and did not make a finding of economic loss, special damage as it might be called, by virtue of the alleged fact that he was out of work and/or lost earnings. There is no sign of any such case being made before the Tribunal or addressed by the Tribunal. We have been shown the skeleton arguments put in below by Mr O'Carroll, on behalf of the Applicant, and in paragraphs 2.4, and then the conclusory paragraph at paragraph 5, he makes it quite clear that the claim for the applicant is limited to compensation. In the conclusory paragraph he said:-

"The applicant seeks compensation for his losses. The losses fall into two groups. The first is in respect of injury to feelings."

And then he sets that out, and then he says:-

"The complaint in respect of the support panel is particularly serious, involving as it did a sustained attack on the applicant's personal and professional character with great personal distress resulting. Quantification is a matter for the tribunal, although it is submitted that all the complaints fall within the higher rather than lower levels of awards."

39.         There is no mention there of the alleged actual loss of earnings. This, it appears, resulted, not from the alleged discriminatory act by either of these two respondents, but from the fact that the reference by the second Respondent, Fife Health Board, of this Applicant, to the Support Panel, which itself was carried out in a discriminatory way, as found by the Tribunal, resulted in an independent conclusion by the Support Panel, subsequently referred to the General Medical Council, that there had been some misconduct by the Applicant, and which itself appears to have led either to his resignation or to some other economic consequence. There is reference in paragraph 104 of the decision to this being mentioned at the Tribunal as follows:-

"As we understand the basis of the case of direct discrimination in relation to the Support Panel issue, it is, and this accords with our note of Mr O'Carroll's objection to the first question posed by Miss Jones at the commencement of her cross-examination of the applicant on the second day of the hearing, to the effect that it was not the applicant's position that the conclusions of the Support Panel were discriminatory nor that what later occurred before the GMC was discriminatory – rather, that the discriminatory act was in respect of the decision to make the applicant the subject of a visit by the Support Panel and his treatment by that panel up to the point in time it decided to refer the applicant to the GMC."

40.         That is the only reference in the Decision to those matters, and, as we have indicated, it is clear to us that there was not even a claim put forward as to any financial consequence. If there had been, it would no doubt have been a matter of some difficulty to pin down some loss resulting from some independent conclusion by the third party body, eventually the GMC, to the original alleged act of discrimination by Fife, and, even more difficult, if not completely impossible, to lay any of that at the door of Kirkcaldy. But even there, there would need to have been some evidence as to loss. Mr Strain says that he is instructed that there was some evidence given below before the Tribunal. There is no indication of that in the Decision, and indeed the only indications are completely opposite, as we have indicated. Paragraph 7 of the Employment Appeal Tribunal Practice Direction, which might possibly have led to some kind of agreement as to whether such evidence was or was not given, is not applicable in Scotland, and consequently could not be followed. But certainly Ms Jones, who was present before the Tribunal on behalf of Kirkcaldy, is quite clear that nothing of the kind occurred, and, indeed, that appears to be totally corroborated by Mr O'Carroll's own skeleton submissions, to which we have referred.
41.         In those circumstances, Mr Strain recognises the difficulty of being able to raise this on appeal. This is a matter which was plainly not run or, if run, not pursued before the Tribunal, and consequently falls foul of the well-established principle set out in Kumchyk v Derby City Council [1978] ICR 1116 that this Tribunal, save where matters go to an issue of jurisdiction, will not be permitted to be run on appeal matters which were not run below, particularly where they would involve the consideration of evidence. In those circumstances, there is no basis on which this appeal can be or should be pursued and it is plainly hopeless and is dismissed.