United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR ANDREW CLARKE (One of Her Majesty's Counsel) and MISS SUZANNE McKIE (Of Counsel) Instructed by: Messrs Lawrence Graham Solicitors 190 Strand London WC2R 1JN
For the Respondent	MR PAUL GOULDING (One of Her Majesty's Counsel) and MISS CLAIRE WEIR (Of Counsel) Instructed by: Messrs Osborne Clarke Solicitors Hillgate House 26 Old Bailey London EC4M 7HW

SUMMARY

Sex discrimination: was Employment Tribunal's approach to the evidence and the drawing of inferences incorrect and such as to cause it to misinterpret and misapply the burden of proof: was there a failure to consider or find a discriminatory state of affairs, and hence a continuing act from the evidence as a whole, even though all but one of the individual complaints of discrimination were rejected by the Tribunal; was the discretion to extend time exercised properly; did the Tribunal treat the question of the hypothetical male correctly, in particular on the pregnancy/maternity leave issues.

Index

Title of paragraphs	Para.No
Amended Grounds of Appeal	3–6
The background	7–20
The decision of the Employment Tribunal	21–24
The structure of the decision	25–35
The detailed findings	36–57
The Law
1. Fact-finding and adequacy of reasons	58–64
2. Out of time/continuing act/just and equitable	65–73
3. General approach to evidence and burden of proof	74–81
4. The burden of proof and the Employment Tribunal's use of the hypothetical male	82–85
The parties submissions
1. General	86–88
2. Out of time/continuing acts/just and equitable	89–97
3. Approach to evidence and burden of proof	98–102
4 The burden of proof and the Tribunal's use of the hypothetical male.	103–111
Conclusions
1. General	112–118
2. Out of time/continuing act/just and equitable extension	119–126
3 Approach to the evidence and the burden of proof	127–130
Inadequate findings of fact
(i) Ms Madarassy's title	131–132
(ii) Abusive behaviour by Mr Boardman after the date of her pregnancy became known	133–134
(iii) February 2001 Performance review	135–140
(iv) The reason for dismissal and pool of employees for the purpose of selection for redundancy	141–144
(v) The redundancy matrix	145–146
(vi) Search for alternative employment	147–150
(vii) Credibility of witnesses	151–153
(viii) Downgrading of Ms Madarassy's performance and achievements	154–164
(ix) Drawing of inferences	165–167
(x) Claims in respect of which no findings made	168–171
Inadequate reasoning	172–190
4. The burden of proof and the Tribunal's use of the hypothetical male	191–215
The cross appeal	216–221
The Respondent's further grounds for resisting the appeal	222
Summary	223–237

THE HONOURABLE MR JUSTICE NELSON

1. This is an appeal against the decision of the Employment Tribunal held at London Central in November and December 2002. In their decision of 18 February 2003 the Tribunal unanimously dismissed the Applicant's claim for sexual discrimination save in one respect, and unanimously dismissed a claim for victimisation and unfair dismissal. Twelve of the Appellant's thirty-three complaints were held to be out of time, twenty, which were in time failed, and one, namely that her employers had failed to carry out a Health and Safety risk assessment succeeded. The Tribunal found that the Appellant had been fairly dismissed by reason of redundancy.
2. The Appellant was given leave to appeal the decision in respect of sex discrimination but refused leave to appeal against the decision as to victimisation and unfair dismissal. The Respondent cross appeals in respect of the sole finding made against it. Mr Justice Burton gave leave in respect of five identified grounds, which were to be reformulated in an amended Grounds of Appeal. He also gave leave for the Appellant to support these five grounds of appeal by way of example of the kinds of errors relied upon in the unamended Grounds of Appeal, which had been drafted by the Appellant herself.

The Amended Grounds of Appeal

3. The first three of the permitted grounds of appeal which all dealt with the issue of time, were dealt with together by Mr Andrew Clarke QC on behalf of the Appellant. Five identified grounds of appeal were therefore condensed into three. These grounds are firstly that the Tribunal failed to consider properly the question of 'continuing act' under section 76(6)(b) of the Sex Discrimination Act 1975. It failed to make comprehensive findings of fact and failed to draw appropriate inferences. It considered the complaints in isolation and failed to consider the totality of the evidence thereby depriving itself of proper consideration of whether these amounted to a continuing discriminatory state of affairs. The Tribunal's approach to the issue of just and equitable extension of time was also in error.
4. Secondly, the Tribunal's approach to the evidence was incorrect and caused it to impose a higher burden of proof upon the Appellant than section 63A of the Sex Discrimination Act 1975 required.
5. Thirdly, the Tribunal misdirected itself as to the burden of proof and the role of the hypothetical male. As a consequence it required the Appellant to prove that she had been treated less favourably than a hypothetical male and to prove this was because of her sex, using evidence other than her own, instead of appreciating that the Appellant needed only to establish a prima facie case by fact or inference before the burden of proof shifted to the Respondent. The Tribunal did not consider properly the mental processes of the discriminator or draw appropriate inferences. It used a male comparator when it was inappropriate to do so when the complaint being considered related to the Appellant's pregnancy or maternity leave.
6. We have been greatly assisted by the helpful and detailed submissions made by Mr Andrew Clarke QC on behalf of the Appellant, and by Mr Paul Goulding QC on behalf of the Respondent.

The background.

7. The Respondent is a well-known financial institution transacting business on a global basis. Part of its investment-banking arm is the Equity Capital Market team (ECM). This, together with the Syndicate Team, forms the Equity New Issues Group, which is part of the Respondent's investment banking division. The ECM team is responsible for originating and executing transactions. Originating involves companies who might use the Respondent's services in raising equity capital being targeted by the Respondent. The Corporate Finance teams are frequently involved in targeting companies and establishing the initial contact. ECM may well be involved in the preparatory meeting and the formal pitch meeting after the analysts have carried out due diligence enquiries. Corporate Finance or sales personnel may also be involved. ECM is involved in the execution stage as well, once the mandate has been awarded. That involves preparation and advisory work, and the marketing and placing of shares or other securities with investors.
8. The Appellant is Hungarian. She lived in Hungary for the first fourteen years of her life and then moved to Turkey. She is fluent in Hungarian and speaks Turkish. She was educated in the United States of America and obtained an MA from Columbia University and a MBA from Wharton. Prior to her employment with the Respondent, which commenced on 17 January 2000, she had worked for the World Bank Group, SBC Warburg, and Advent International plc. Most of her previous work had been corporate finance based relating to European emerging markets, including work in Hungary.
9. The Appellant was interviewed on some three occasions. She was introduced to the Respondent by a headhunter. The Respondent wanted to find someone to fill a leading position in the Central and Eastern European region to replace an employee, Miss Ketyko, who had been seconded to the ECM team from Budapest. When she returned to Hungary, Mr Boardman, a director in the investment banking division in charge of equity new issue business in Europe wanted to fill her position but at a higher level with somebody who could take over all the operational aspects of an equity deal. He was first interested in another person, a male employee in Merrill Lynch, but he turned down the offer of employment and the Appellant was Mr Boardman's second choice.
10. The customary probationary period was three months but there were exceptions. Mr Boardman decided that the Appellant should have a six-month probationary period. She started work on 17 January 2000 with a one off bonus of £10,000 to be paid in April 2000.
11. The Appellant's work with the Respondent was to originate and execute ECM transactions in emerging markets, with particular focus on Hungary and Turkey. She had a steep learning curve in view of the fact that she had not dealt with ECM business and the execution of new issues before. She had not managed a private equity project resulting in a successfully closed Initial Public Offering (IPO).
12. During her first six months the Appellant travelled a great deal in Hungary and Turkey in order to renew her contacts. She produced deal flows for Mr Boardman who, the Employment Tribunal found, was concerned that the work she was doing was largely corporate finance and not ECM business.
13. In June 2000 the Appellant became pregnant. Her probationary period ended on 16 July 2000, but in part because holidays intervened, she was not confirmed in her employment until 5 September 2000. On 21 August 2000 Mr Boardman had completed an assessment of the initial review period for the Appellant. This, as the Employment Tribunal found, graded reliability, attitude to work, quality of work, ability to work with others and general assessment, as 1 outstanding, 2 good, 3 satisfactory and 4 poor. The Appellant was given respectively, 3, 3, 3 and 4 together, 3 and 4 together, and 3--. Mr Boardman confirmed that she had successfully completed her initial review period and commented "Need to upgrade considerably both in terms of quality of work and getting on with people". The Appellant met with Mr Boardman on 4 September 2000 when she returned from holiday. He explained that there had been doubt about confirming her employment but that there were weaknesses that could be overcome with hard work. He told her that she should focus on ECM deals that were achievable within a reasonable time frame, and that she should be focusing on putting together a top quality pitch and doing more basic ECM work herself to become more proficient in drafting presentations. He told her that Mr Sumino was concerned about her performance.
14. A list of objectives was e-mailed to the Appellant addressed by reference to performance assessment. The last item, 'communication' stated "Orally is above average but improvement is required as far as written material is concerned".
15. In November 2000 the Appellant notified the Respondent's Human Resources Department of her pregnancy. On 27 February 2001 she completed her annual performance review. This process involved self-appraisal by the employee, 360° appraisals from colleagues both inside and outside their own department, and assessment and appraisal by the line manager and seniors. At their appraisal meeting on 14 February 2001 Mr Boardman, the Appellant's line manager, indicated that he felt her performance was not up to the Nomura standards. She submitted a revised appraisee preparation form but in his first draft performance review for her Mr Boardman expressed concerns about her performance and submitted his review to Human Resources. His assessment of the Appellant as below the Nomura standard was discussed with her on 26 February 2001 and on 27 February 2001 she met with Mr Sumino who told her that her communication and teamwork needed to be improved.
16. The Appellant's last day in the office before her maternity leave was 2 March 2001. Within days Mr Iosio was confirmed in his position as a permanent member of staff of ECM. On 18 March 2001 the Appellant's daughter was born.
17. The market was poor in 2001. ECM revenues were down on the previous year and were continuing to be affected by worsening market conditions. The Respondent shifted away from emerging market business towards Western Europe business in targeted areas such as Health Care and Western European large capital stocks. During June and the beginning of July 2001 refocusing on Western Europe by the Equities division covering emerging markets began. There were a significant number of redundancies though at the first stage none were in ECM because that section had already been reduced earlier by some 30%. On 11 June 2001 a meeting was held for Equity New Issues Group employees when they were made generally aware of what was going on. At that time some 16 – 20 people were notified of redundancy.
18. The Appellant returned from maternity leave on 9 July 2001. She had not been informed of the restructuring which had been going on in her absence and was hence unaware of it until her return to work. On her return, she was asked to work on the LEK project which was one of the largest and most profitable care companies in Central Europe. She produced a first draft of the pitch which was rewritten by Mr Boardman. At the end of July Mr Dean became involved on the LEK pitch. The Appellant did start undertaking the review of financial institutions but she had some difficulty in using the Bloomberg PC based system of delivering financial information, and was unaware of the appropriate publications.
19. It was decided in mid August 2001 that the Respondent could not justify pursuing emerging markets business, particularly in view of the new focus on Western European health care, technology and telecommunications stock and a decision was made that it would be necessary to make someone redundant in the ECM team. At a meeting on 16 August 2001 the Appellant's performance was discussed and the question raised as to whether her job was redundant. Her objectives for the forthcoming year had not then been finalised even though they had been discussed and set out in the key objectives for the forthcoming year in her performance review for 2000/2001. The objectives were not finalised as they were to be discussed after the Appellant's return from maternity leave. This in fact never happened and her objectives for the following year were never finalised.
20. Mr Boardman and Mr Sumino decided that the Appellant's job was redundant. A selection matrix was prepared comparing Mr Adams, the Appellant and Mr Salim Salam. On 17 September 2001 the Appellant was informed that her job was potentially redundant and the consultation process commenced. The Appellant instructed solicitors on 27 September 2001 and on 3 October 2001 made a grievance claim including sex discrimination. This was set out in a twenty two page document on 16 October 2001. The consultation period was extended and at a meeting on 21 November 2001 the Appellant was dismissed with effect from 22 November 2001. She filed an application to the Employment Tribunal on 13 December 2001 and her grievance was dismissed by her employers on 21 December 2001.

The Decision of the Employment Tribunal.

21. The Employment Tribunal heard nineteen days of evidence and submissions. There were thirty-two witnesses and the Appellant gave evidence for some seven days and Mr Boardman for four days. The parties were given time to prepare written submissions. Detailed submissions in writing were delivered to the Tribunal which then heard one hour's additional oral argument from each side. Immediately after the submissions had concluded the Tribunal commenced their deliberations. These lasted for four days after which the chairman wrote up the decision. The extended reasons run to some 437 paragraphs over 76 pages.
22. The Appellant contends that in spite of the length of the decision the reasons do not display the careful and structured approach which is required in making a decision in a case where discrimination is alleged. The primary facts must be found and consideration given to such inferences as might be drawn from them in view of the fact that it is difficult to prove discrimination by direct evidence alone. The finding of the primary facts and the drawing of inferences has to be performed before the Tribunal can turn to issues such as whether the claim was in time. The Appellant submits that the decision does not satisfy these requirements, fails to deal with many aspects of the Appellant's case as put forward to the Tribunal, and also contains serious errors of law. The Tribunal's flawed approach, the Appellant submits, undermines its decision and leads it into errors in dealing with whether the claim was in time, the burden of proof and the use of the hypothetical male comparator.
23. It is not disputed that whilst there are other allegations of sex discrimination by the Appellant, the main thrust of her case concerned her role and performance and whether or not her manager's criticisms of her standard and level of achievement were fair and if not, what were the reasons for such unfair criticism. The Respondent contends that the Tribunal addressed all the essential complaints and made entirely clear findings on the issue of discrimination. It rejected the Appellant's allegations and accepted the explanations of her line manager Mr Boardman. It found, the Respondent submits, that Mr Boardman considered that the Appellant's performance at work was not up to Nomura standards and that he genuinely believed that this was so. These clear findings resulted in the rejection of the claim for discrimination and the Appellant cannot, as the Respondent submits she is in effect seeking to do, retry the facts.
24. In view of the nature of the criticisms of the decision it is necessary to consider its structure as well as its detail.

The structure of the decision.

25. After dealing with preliminary matters the Employment Tribunal set out "The Material Facts" under various different sub headings. These were, Background, Recruitment of the Applicant, Ms Madarassy's Role, Ms Madarassy's First Six Months, Confirmation of Ms Madarassy's Employment, Pregnancy, Videoton Second Stage, Hermes Softlab, Mr Sumino, February 2001 Performance Review, Maternity Leave, First Stage Restructuring, Ms Madarassy's Return from Maternity Leave, Grievance (paragraphs 28 –143).
26. Whilst the Tribunal sets out under the heading The Material Facts the history of the Appellant's recruitment by the Respondent to her dismissal and grievance, it does not make a finding in relation to every factual issue which arose.
27. The Tribunal gives a description of each of the various deals with which the Appellant was associated both in her first six months and thereafter. Some are dealt with briefly, and some, such as Videoton, dealt with in greater detail. An example of those dealt with briefly is Muranyi which is set out in paragraph 49 as follows:-

"The Muranyi case was a mandate for a trade sale which is mergers and acquisitions work, and was therefore not ECM business. Ms A Ketyko had left the Respondent and Ms Madarassy became involved as a Hungarian speaker. The transaction itself arose from Mr Kovago's contacts prior to Ms Madarassy's employment. Muranyi went into liquidation and the Respondent lost money because it was unable to recoup its expenses."

28. The Videoton deal was dealt with at considerable length between paragraphs 70 and 81 (March 2000 – August 2000) and, in its second stage (October 2000) paragraphs 96 – 98. The Employment Tribunal noted that on 26 July 2000 Ms Madarassy had sent a proposal request outline, which had been criticised by the Respondent's witnesses as inadequate. After a further draft proposal had been submitted by Ms Madarassy a fellow employee, Mr Beattie sent an e-mail to Mr Boardman complaining that the proposal "..will not work like this.. it is not a proper table of contents, does not allocate all the work to the right people and is generally too loose..". Mr Boardman sent an e-mail to Mr Sumino on 28 July 2000 stating his lack of confidence in the Appellant's ability to produce a good document and reporting his request to others to help her try to review the matter. Mr Beattie also expressed his concern at the state of the pitch to Mr Sumino.
29. In some instances findings are made, whereas in others, the party's cases are merely recited. Thus for example in relation to the allegation that Mr Boardman regularly shouted at the Appellant the Tribunal found that Mr Boardman was "demanding, had high standards and spoke forcibly. We have no doubt that he shouted from time to time but, on the evidence, we are satisfied that he shouted equally to both men and women." (Paragraph 90) Further, in relation to a letter drafted by the Appellant to be sent to Videoton, the Tribunal found that "This was not the letter of a native English speaker. The letter was rewritten by Mr Boardman and substantially reworded." (Paragraph 97) These were clear findings but in relation to the Hermes Softlab transaction, upon which the Appellant was engaged, the Tribunal make no express findings but state at paragraph 101 of their decision:-

"Mr Boardman told us that he was rather disappointed with Ms Madarassy's performance on the Hermes Softlab transaction. He felt that the quality of her written work was not of the required standard and that there were some tasks that she was unable to perform such as the preparation of the financial model and valuation, which was prepared by Mr Iosio, supported by Mr S Murphy. Mr Boardman was concerned about Ms Madarassy's client management skills and for these reasons he told us that he was not able to distance himself from the day to day running of the transaction. However, Mr Boardman's view was that her work on the Hermes Softlab transaction was an improvement on the earlier work that Ms Madarassy had done."

This, the Appellant complains, is little more than a recitation of the Respondent's case.

30. The Tribunal goes on to consider in paragraphs 144, 145 the Submissions made by the parties by reference to the comprehensive and detailed written submissions, which were supplemented by one hour's oral address. The Tribunal note that the Respondent's written closing submission was 128 pages, the Appellant's closing submission was 71 pages, the Respondent's reply 6 pages and the Appellant's reply 14 pages.
31. In paragraphs 146 – 160 the Tribunal make observations on the Appellant's witnesses apart from the Appellant herself. It also refers to the Respondent's witnesses but states that any relevant comments concerning them appear in the conclusions.
32. The Tribunal then sets out the law in paragraphs 161 – 173. No complaint is made on behalf of the Appellant as to the manner in which the Tribunal deals with the law. The complaint is the manner in which the Tribunal applies the law, having correctly set it out.
33. In paragraphs 174 – 368 the Tribunal states its conclusions on the complaints of sex discrimination. It sets out its approach in paragraph 175, as follows:-

"175. In relation to each complaint we have firstly considered whether it is out of time and, if so, whether it is part of a continuing act and, if not, whether it is just and equitable to extend time. We have then considered whether Ms Madarassy was treated any less favourably than a hypothetical male comparator would have been treated in the same circumstances and, if so, whether it was on the grounds of her sex or pregnancy. If so, the Tribunal has considered whether the Respondent has proved that it did not commit the act in question (a) pursuant to section 63(A)(2) of the Sex Discrimination Act 1975. Our conclusions are set out by reference to the paragraph numbers in the further and better particulars."

34. The particulars referred to are the further particulars and information of the thirty-three complaints in the originating application, which it was accepted set out the Appellant's case in its entirety on the issue of sex discrimination. Paragraphs 176 – 178 deal with just and equitable extensions of time.
35. Paragraph 369 – 436 deal with the complaints of victimisation and unfair dismissal. The Tribunal found that the reason for the dismissal was redundancy (paragraph 406) and that the selection criteria and the pool were appropriate (410-413). The Tribunal states in paragraph 429 that the right people were not interviewed for the purpose of the grievance procedure and that it was to be regretted that Miss Morrison sent out the grievance decision the day after she had received Mr Boardman's second response. Neither of these matters however, it concluded, was an issue before it on the complaint of unfair dismissal. The remedy hearing in respect of paragraph 1.12 of the particulars was adjourned and overtaken by the request for a review of the decision made by the Appellant, and her subsequent appeal.

The detailed findings.

36. When the Appellant was confirmed in her employment in September 2000 concerns had been expressed about her ability to produce a good document and her line manager, Mr Boardman, stated that although she had completed her initial review period she needed to "upgrade considerably both in terms of quality of work and getting on with people". In her appraisal for 2000 Ms Madarassy was rated 4, which under the marking system was categorised as 'poor'. (Paragraphs 84 and 410). There had been doubt about confirming her employment and not only Mr Boardman but also Mr Sumino were concerned about her performance. (Paragraph 86). She was orally above average but improvement was required as far as written material was concerned. (87)
37. The Tribunal asked the Appellant to translate an e-mail, which she had sent to her sister in Hungarian on 2 October 2000. The translation which Ms Madarassy provided is set out at paragraph 93 of the decision as follows:-

"I have a hard time to bear it. They're working me to death and it is still not enough. All this should improve themselves as I learn and become more professional (in sense of being good at one's job). My boss is a classic literature man originally, then he had been an accountant, therefore he is very precise. He writes well. Everything I write he rewrites five times, otherwise he is rather normal and a type who has a relaxed style so it is not so dangerous."

38. It was on the same date, 2 December 2000, that the Appellant wrote a letter to the vice – presidents of Videoton. In paragraph 97 the Tribunal described this as "not the letter of a native English speaker", and noted that the letter was rewritten by Mr Boardman and substantially reworded. We have been shown, as were the Employment Tribunal, a copy of Ms Madarassy's draft and Mr Boardman's rewrite. The Tribunal was in paragraph 97 clearly making a finding in relation to the Appellant's drafting skills, one of the features which had caused concern in her initial review and September 2000 appraisal.
39. In paragraph 101 of the decision the Tribunal set out Mr Boardman's view that the quality of her written work was not of the required standard and that she was unable to perform the preparation of the financial model or valuation for the Hermes Softlab transaction. Because of his concern about her client management skills he could not distance himself from the day-to-day running of the transaction. There is, as the Appellant states, no express finding as to the merits of Mr Boardman's concerns though it is clear that the Tribunal are accepting that he genuinely held them.
40. At paragraphs 111-113 the Tribunal find that Mr Boardman's concerns were still present at the time of the February 2001 performance review. The Tribunal state that Mr Boardman indicated that he felt the Appellant's performance was "not up to the Nomura standard" in paragraph 111, that he had assessed her as a '4' which was below that standard and that Mr Sumino also told her that her communication and teamwork needed to be improved (paragraphs 113, 114). Again the Tribunal is clearly making findings as to what they accepted of Mr Boardman's genuinely held views. In paragraph 127 it is noted that in July 2001 after her return from maternity leave the Appellant had some difficulty in using the Bloomberg PC based system of delivering financial information and was unaware of the appropriate publications.
41. In August 2000 Ms Madarassy had been replaced as the Videoton deal leader by Mr Beattie. The Tribunal found that had the claim been in time it could not have succeeded because there was no evidence that the Appellant was less favourably treated than a hypothetical male comparator in the same situation would have been treated "if he had made no progress on the Videoton project." (Paragraph 212). The finding by the Tribunal is therefore that the Appellant lost the deal leadership on Videoton, and was, as she said Mr Boardman told her, "effectively demoted" because she had made no progress on the project.
42. Under their finding in relation to paragraph 1.5 - 'Objectives on Confirmation of Employment' – the Tribunal makes a confusing finding in paragraph 218 of its decision. This paragraph reads as follows:-

"The document provided by Mr Boardman to Ms Madarassy in September 2000 at CB1-73 sets out objectives. Further objectives were set out in her appraisal in February 2001, immediately prior to her departure for maternity leave, but were not discussed with her immediately upon her return. This was identified at the meeting on 16 August 2001 and a note made that it should be dealt with. In fact it remained unresolved at that time but, although Ms Madarassy suffered a detriment because her objectives were not finalised before the end of her employment, she has failed to satisfy the Tribunal that she was less favourably treated than a hypothetical male employee in the same situation in respect of whom the Respondent had concerns over his communication skills, written work and other matters that were concerns in relation to Ms Madarassy. It is therefore the unanimous decision of the Tribunal that the claim in respect of this matter fails."

43. Although there is, on the face of it, confusion between the September 2000 objectives and the 2001 objectives, it is, in our view, clear that the Tribunal were satisfied that the Respondent had concerns over Ms Madarassy's communication skills, written work and other matters.
44. The Tribunal goes further than the finding that Mr Boardman's concerns existed in paragraph 230 of its decision where it finds that there was "some justification for Mr Boardman's concern about Ms Madarassy's ability to produce good written documentation." Although not spelt out it appears that this relates to the Tribunal's finding in paragraph 97 of its decision that Ms Madarassy's draft letter of 2 October 2000 to Videoton was not the letter of a native English speaker. A letter of October 2000 could not justify Mr Boardman's view on 28 July 2000 but it was evidence before the Tribunal which enabled it to form its own view as to whether Mr Boardman's concern about the ability to produce good written documentation was justified.
45. When dealing under paragraph 1.9 with the complaint that Ms Madarassy's level and standard of achievement was denigrated by Mr Boardman, the Tribunal states in paragraph 239:-

"The evidence is that from time to time Mr Boardman was critical of the work that Ms Madarassy did. He was her boss. Senior people do criticise the work of their subordinates. There is no evidence that he criticised the work for any reason other than his concerns about its merit and no evidence that he did this in order to heighten his own role. We are satisfied that Mr Boardman would have treated any one of his male staff that he was critical of in the same way."

46. In relation to the allegation under paragraph 1.14 that she was given a wholly incorrect incomplete and false performance review in February 2001 shortly before she left on maternity leave, the Employment Tribunal conclude at paragraph 282:-

"We have to compare Ms Madarassy with a hypothetical male comparator in the same situation. We found the performance review set out strengths and weaknesses and that it set out Mr Boardman's view of the situation at that time. We do not find that Ms Madarassy was unfairly treated, nor that a hypothetical male comparator would have been treated any differently. Accordingly this complaint would fail."

47. The findings under paragraphs 239 and 282 of the decision further confirm that the Tribunal found that Mr Boardman held genuine concerns about the level of the Appellant's performance at work in both 2000 and 2001. The Tribunal deals with Ms Madarassy's complaint under paragraph 1.30 that she received a redundancy selection matrix which included insulting discriminatory and untrue statements about her at paragraph 354 of its decision. It there finds:-

"On the evidence the matrix reflects the assessment by Mr Boardman of Ms Madarassy's abilities. The assessment is consistent with the 2001 performance review. On the evidence, there is nothing from which the Tribunal can infer that the redundancy selection matrix treats Ms Madarassy less favourably than a hypothetical male comparator in the same situation as her with the same performance reviews would have been treated. .."

48. When dealing with the Appellant's complaint about her dismissal under paragraph 1.33 the Tribunal states that Ms Madarassy was redundant and that a hypothetical male employee in the same situation would have suffered the same fate. In considering her complaint that her dismissal was discriminatory they state that they have "..considered this matter in relation to all the matters leading up (to) the dismissal set out above." (Paragraph 365)
49. In paragraph 410 of its decision the Tribunal in referring to the redundancy selection matrix states as follows:-

"Each of Mr Adams, Ms Madarassy and Mr Salam were rated excellent, adequate or poor against each of the criteria. It is notable that Ms Madarassy is not rated 'excellent' for anything. Mr Adams has seven 'excellents' and Mr Salam has eight 'excellents'. Mr Adams is rated poor on product knowledge of technology and financial services Mr Salam is rated poor on product knowledge of health care. Ms Madarassy is rated as poor on ten different aspects. In addition Ms Madarassy was rated poor for her appraisal in 2000 and Mr Adams and Mr Salam were both rated '2'."

50. The Tribunal found as a fact that nobody but the Respondent was aware of the Appellant's pregnancy until early to mid November 2000. There was no evidence that anyone apart from Mr J Ritchie was told of Ms Madarassy's pregnancy prior to her telling Mr Boardman of it on or around 7 November 2000. (Paragraph 89)
51. Mr Boardman would shout or raise his voice at both men and women the Tribunal found. He was demanding, had high standards and spoke forcefully. The Tribunal had no doubt that he shouted from time to time but, on the evidence, it was satisfied that he shouted equally to both men and women. (Paragraph 90) There was equality of shouting regardless of gender or level within the ECM team. (Paragraph 228)
52. The Tribunal acquitted Mr Sumino, the head of the Equity New Issues Division of only asking Ms Madarassy to speak last at the morning meetings. They heard from Mrs Gironi, who formerly worked for the Respondent, that women and men were treated no differently by Mr Boardman or Mr Sumino and that Mr Sumino would go round the table asking each in turn their comment, and when people spoke generally depended on where they were sitting. Ms Madarassy was treated the same as everyone else. The Tribunal found that the order in which individuals spoke in the meetings depended on where they were sitting at the table.
53. There is an inconsistency between the Tribunal's findings at paragraph 124 and paragraph 313. At 124 the Tribunal finds that whilst Ms Madarassy had been away on maternity leave Mr Adams had moved to specialise in health care and Mr Salam had moved to specialise in the telecoms and technology sector, whereas in paragraph 313 they found that Mr Adams was a specialist in health care and Mr Salam a specialist in technology and telecommunications before the Appellant went on maternity leave. The Respondent submits that paragraph 124 should be read so as to mean that Mr Adams had moved to specialise more in health care and Mr Salam had moved to specialise more in telecoms and technology.
54. When the Tribunal considered the February 2001 performance review it mistakenly treated an appraisal upon Mr Salam as being an appraisal on the Appellant by Mr Salam. The 360° appraisal which they omitted as a consequence was that of Mr Stanley who had no negative comments to make about her.
55. The Tribunal found that Mr Boardman neither undermined nor denigrated Ms Madarassy. (Paragraphs 235 and 237). It was found that Mr Boardman was described in a note by Mr Ritchie as "Teflon man/blaming others – always someone else's fault and undermining others when it suited him.." (Paragraph 151) There was no other general finding as to Mr Boardman's credibility, nor was the finding as to "Teflon man" directly related to any of the later findings in the decision. Nor is there any overall assessment of the Appellant's credibility. The Tribunal appeared to have treated her evidence in the same manner as it stated it was treating the Respondent's evidence in paragraph 160, namely that any relevant comments appear in its conclusions.
56. Each of the thirty-three particulars of discrimination is considered separately, firstly as to whether the complaint is in time, secondly as to whether it is part of a continuing act and thirdly and in any event even in those cases where a claim is found to be out of time, whether the Appellant was treated any less favourably than a hypothetical male comparator would have been treated in the same circumstances. On many occasions in its decision the Tribunal states that there is 'no evidence' or 'no corroborative evidence' to support the Appellant's case. Thus in paragraph 182 the Tribunal states that there was no corroborative evidence that a particular discussion took place and was therefore unable to make any finding on it. In paragraph 184 it is said that there was no evidence from which the Tribunal could find that Ms Madarassy's title had been retroactively changed. In paragraph 235 it was said that there was no evidence before the Tribunal that Mr Boardman undermined or denigrated Ms Madarassy. The Tribunal expresses itself in a similar manner in paragraphs 217 and 236, 239, 313, 325, 337, 364 and 382. The Tribunal states that there is "no evidence" when there is some evidence on the issue, namely from Ms Madarassy herself. The Tribunal refer to the absence of 'corroborative evidence' where no legal requirement for such evidence could arise. We consider below the interpretation of this phraseology and whether or not the Tribunal erred in law in so expressing itself.
57. The Tribunal unanimously concluded, having considered all the matters leading up to the dismissal, that the Appellant was redundant and that her claim for sex discrimination failed either because her complaints were out of time and there was no jurisdiction to consider them or because they failed upon the merits. Even where they were found out of time and no extension of time was appropriate, the Tribunal considered, as stated above, the merits of each individual complaint. Only in respect of one complaint, namely the failure to carry out a health and safety risk assessment did the Tribunal find that the Appellant was discriminated against on the ground of her sex.

The Law

1. Fact-finding and adequacy of reasons

58. An Employment Tribunal must make findings upon the factual issues essential to its conclusions. It does not have to explore the circumstances of every event in the evidence placed before it. Wheeler and Newton v Durham County Council [2001] EWCA Civ 844 paragraphs 50, 54 and 55. Anya v University of Oxford [2001] ICR 847, 862.
59. It is not enough simply to set out the relevant evidential issues, they must be followed through to a reasoned conclusion. The function of an Employment Tribunal in discrimination cases is clearly set out the case of Qureshi v Victoria University of Manchester [2001] ICR 863 and set out in Anya v University of Oxford para 9. Mr Justice Mummery then said:-

"The function of the Tribunal is to find the primary facts from which they will be asked to draw inferences and then for the Tribunal to look at the totality of those facts (including the Respondent's explanations) in order to see whether it is legitimate to infer that the acts or decisions complained of in the originating applications were on 'racial grounds'. The fragmented approach adopted by the Tribunal in this case would inevitably have the effect of diminishing any eloquence that the cumulative effect of the primary facts might have on the issue of racial grounds. The process of inference is itself a matter of applying commonsense and judgment to the facts and assessing the probabilities on the issue whether racial grounds were an effective cause of the acts complained of or were not."

60. A generous interpretation ought to be given to the Tribunal's reasoning. Lord Nicholls in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 at paragraph 59 said :-

"An Appellate Court should hesitate before it decides to reverse a decision of the Tribunal on a matter of this kind. The question which was at issue here was a question of fact, and the Tribunal had the advantage of seeing and hearing the witnesses. In a case such as this, where direct evidence of discrimination is absent and so much depends on inference, this is a crucial advantage which the Appellate Court does not share. It has also been recognised that a generous interpretation ought to be given to a Tribunal's reasoning. It is to be expected, of course, that the decision will set out the facts. That is the raw material on which any view of its decision must be based. But the quality which is to be expected of its reasoning is not that to be expected of a High Court Judge. Its reasoning ought to be explained, but the circumstances in which a Tribunal works should be respected. The reasoning ought not to be subjected to an unduly critical analysis."

61. As to adequacy of reasons the parties are entitled to be told why they have won or why they have lost. There should be a sufficient account of the facts and the reasoning to enable the Employment Appeal Tribunal or the Court of Appeal to see whether any question of law arises, Meek v City of Birmingham District Council [1987] IRLR 250.
62. In English v Emery Reimbold & Strick Limited [2002] 1WLR 2409 at paragraph 118 Lord Phillips MR said :-

"An unsuccessful party should not seek to upset a judgment on the ground of inadequacy of reasons unless, despite the advantage of considering the judgment with the knowledge of the evidence given and the submissions made at the trial, that party is unable to understand why it is that the judge has reached an adverse decision."

63. The EAT must be wary of substituting its own assessment of the evidence and overturning findings of fact and conclusions reached by the Employment Tribunal which were permissible options on the evidence before it. Yeboah v Crofton [2002] IRLR 634 paragraph 69.
64. An uncritical belief in the witnesses' credibility without proper examination of the relevant evidential issues through to a reasoned conclusion will not be sufficient. Credibility is 'not necessarily the end of the road: a witness may be credible, honest and mistaken, and never more so than when his evidence concerns things of which he himself may not be conscious.' Anya v University of Oxford paragraph 25.

2. Out of time/continuing act/just and equitable.

65. A complaint of sex discrimination is out of time unless it is presented to the Tribunal before the end of the period of three months beginning when the act complained of was done. Nevertheless a Tribunal may consider a complaint which is out of time if, in all the circumstances of the case it considers that it is just and equitable to do so. Section 76(1) and (5) of the Sex Discrimination Act 1975. When considering whether a complaint is in time for the purposes of section 76:-

"(6)(b) any act extending over a period shall be treated as done at the end of that period."

66. In determining whether the acts of discrimination fall within section 76(6)(b), in the sense that they can properly be regarded as a continuing act, the court has to consider whether there is evidence of a continuing discriminatory state of affairs. Lord Justice Mummery in Hendricks v Commissioner of the Police for the Metropolis [2003] IRLR 96, paragraph 48 describes the test as follows:-

".. the burden is on her to prove, either by direct evidence or by inference from primary facts, that the numerous alleged incidents of discrimination are linked to one another and that they are evidence of a continuing discriminatory state of affairs covered by the concept of 'an act extending over a period'. I regard this as a legally more precise way of characterising her case than the use of expressions such as 'institutionalised racism', 'a prevailing way of life', a 'generalised policy of discrimination' or 'climate' or 'culture' of unlawful discrimination."

67. The concepts of policy, rule, practice, scheme or regime in the earlier authorities were examples of when an act extended over a period and should not be treated as a complete and constricting statement of the indicia of an act extending over a period. The real question was whether there is 'an act extending over a period' as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed. (Paragraphs 48 and 52)
68. The case of Hendricks was decided shortly before the Employment Tribunal heard Ms Madarassy's case, and was not cited to it.
69. In Henry v London Borough of Newham [2004] EWCA Civ 377 paragraphs 26 and 27 Lord Justice Pill said:-

"The mischief which Mummery LJ had in mind in Hendricks was of confining the approach to section 68(7)(b) to a consideration of labels, such as 'institutional racism' and failing to look at the specific evidence in the case, and specific allegations in the case in a common sense way, in deciding whether the conduct amounts to 'an act extending over a period' as distinct from a succession of unconnected or isolated specific acts.

I readily accept that in a particular case there may be continuing conduct without there necessarily being a racialist policy or regime, or institutionalised racism. In my judgment there is no risk that the Employment Tribunal fell into that trap in this case. There had been a series of problems between the Appellant and his employers. The Employment Tribunal examined the substance of the complaints. They considered the specific incidents. They made clear and firm findings of fact on them. In my judgment, they were fully entitled to conclude that the conduct could not be regarded as an act extending over a period within the meaning of that expression in section 68 (7)(b). Each of the specific findings was, in the event, adverse to the Appellant."

70. Although this case referred to race discrimination alone, the provisions relating to continuing act are the same for sex discrimination.
71. As to extension of time the Tribunal has a wide ambit of discretion. The Court will not interfere with the exercise of discretion unless it erred in principle or was otherwise plainly wrong. The exercise of discretion is the exception rather than the rule as a Tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time. Robertson v Bexley Community Centre [2003] IRLR 434.
72. Where the question of prejudice to one of the parties by delay is in issue, the general rule of thumb is that the longer the delay after the occurrence of the matters giving rise to the course of action the more likely it is that the balance of prejudice will swing against the application. KR v Bryn Alyn Community Limited [2003] QB 1441 (at paragraph 80) – a case on the Limitation Act 1980. Prejudice may not arise where the facts have been fully and properly investigated at an early stage. Smith v Donelon & Co Limited unreported CA 30 July 1998. The discretion is as wide as the discretion to extend the time limit in personal injury cases and similar matters may be taken into account. British Coal Corporation v Keeble [1997] IRLR 336.
73. The discretion of the Tribunal will not be interfered with unless it can be shown that it demonstrably took the wrong approach to the matter, took into account facts which ought not to have been taken into account or failed to take into account facts which should have been taken into account, or was so unreasonable that no reasonably instructed Tribunal could have so decided. Hutchinson v Westward Television Limited [1977] ICR 279.

3. General approach to evidence and burden of proof.

74. The burden of proof in sex discrimination cases is set out in Section 63A(2) of the Sex Discrimination Act 1975:-

"Where, on the hearing of the complaint, the complainant proves facts from which the Tribunal could, apart from this section, conclude in the absence of an adequate explanation, that the Respondent –

(a) has committed an act of discrimination against the complainant which is unlawful..

the Tribunal shall uphold the complaint unless the Respondent proves that he did not commit, or, as the case may be, is not to be treated as having committed, that act."

75. Section 63A follows the pre-existing position established by the case law such as King v Great Britain China Centre [1991] IRLR 513. In the view of Lord Justice Simon Brown, as he then was, in Nelson v Carillion Services Limited [2003] ICR 1256 para 26, the effect of section 63A was to codify the pre-existing position. Lord Justice Simon Brown said that the burden of proving indirect indiscrimination remained upon the complainant. In paragraph 36 he said:-

"I have in short come to the clear conclusion that in an indirect discrimination case the burden of proving disproportionate adverse impact lies on the complainant and that merely to raise 'a credible suggestion' that, were the relevant (valid and significant) statistics provided, these might establish disproportionate impact is not sufficient for the complainant's purposes and imposes no further burden of explanation upon the employer."

76. The decision in Nelson was followed by the EAT in Pratt v Sanden International (Europe) Limited EAT/529/02/ILB. His Honour Judge Serota having considered the decision of the EAT in Barton v Investec [2003] ICR 1205, which analysed the effect of section 63A, and the decision of Nelson in the Court of Appeal, said at paragraph 20:-

"Having considered these authorities, we are quite clear that the burden of proof only shifts to the Respondent after an applicant has shown: (a) less favourable treatment than an actual or hypothetical comparator, and (b) the circumstances of unfavourable treatment were such as to properly permit the drawing of an inference that the less favourable treatment was on the grounds of a complainant's sex."

77. In the case of Barton Judge Ansell set out guidance as to how section 63A should be approached. He noted that the burden remained upon the applicant to prove on the balance of probabilities facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the Respondents had committed an act of discrimination against him or her, and that if the applicant does not prove such facts he or she will fail. As the Tribunal is only at that stage considering whether the facts proved by the applicant 'could' lead it to conclude that there had been an act of unlawful discrimination, it is looking at the primary facts proved by the applicant to see what inferences of secondary fact could be drawn from them. (paragraph 25)
78. We note that although in Barton it was said that the Respondent had to prove on the balance of probabilities that the treatment was in 'no sense whatsoever on the grounds of sex' once the burden had shifted, the EAT has since said in Chamberlin Solicitors v Emokpae EAT/0989/03/DM that the EAT was not there saying that the law had been changed to require the Respondent to show gender had no effect whatsoever on the decision; what was required was for the Respondent to prove on the balance of probabilities that the treatment was not significantly influenced (as defined in Nagarajan v London Regional Transport [1999] IRLR 572) by sex. We consider that the view of Chamberlin as to the burden cast on the Respondent is correct.
79. In The University of Huddersfield v Wolff EAT/0596/02/SM Mr Justice Burton, President, stated that the right course for the Tribunal is to find the material facts, to address section 63A and in particular:-

"..to conclude that the burden moves where the applicant has proved facts from which inferences could be drawn that the Respondents have treated the applicant less favourably on the grounds of sex. It must therefore arrive at a conclusion that there is a prima facie case that the Respondent has treated the applicant less favourably on the grounds of sex. Once it has done that, then it passes to consider the Respondent's explanations; it must, if it has not already done so, make findings of fact, or draw inferences from findings of fact, for the purposes of concluding whether any of the explanations put forward by the Respondents satisfy them, the burden being on the Respondent to show that the less favourable treatment was not on the grounds of sex." (Paragraph 26)

80. The burden of proof will therefore only shift once the complainant has proved facts from which the Tribunal could properly conclude that he or she had been discriminated against. 'A credible suggestion' is not sufficient; there must be evidence adduced by the complainant from which discrimination could be inferred. Once such evidence has been called and the Tribunal is properly able to conclude that there is a prima facie case that the Respondent has treated the applicant less favourably on the grounds of sex, the burden then passes to the Respondent.
81. In order to make its decision the Tribunal must make findings of primary fact on the factual issues essential to its conclusions. If those facts give rise to proper inferences being drawn, those inferences should be drawn. In carrying out its task the Tribunal must consider the totality of the evidence so as to avoid the risk of a fragmented approach preventing the true overall picture from being ascertained. Anya, and Qureshi.

4. The burden of proof and the Employment Tribunal's use of the Hypothetical Male.

82. In a case where sex discrimination is alleged the burden is upon the complainant to prove:-

i) Less favourable treatment than a man received or would have received in the same or materially similar circumstances

ii) Such treatment was received on the grounds of the applicant's gender

iii) Through such treatment the applicant had been subjected to a detriment. The Law Society v Bahl [2003] IRLR 640 – para 79.

83. The first issue is often referred to as the 'less favourable treatment' issue and the second issue as the 'reason why' issue. In Shamoon Lord Nicholls pointed to the risk that considering these issues separately in a two-step approach might give rise to unnecessary problems especially where identifying the characteristics of a hypothetical comparator was difficult. He said at paragraph 8 that:-

"Sometimes the less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue. The two issues are intertwined."

84. It may also be helpful to consider the 'reason why' issue first in order to determine what is essentially a single question, namely did the complainant on the proscribed ground, receive less favourable treatment than others? Was it on the grounds of her sex or was it for some other reason? All the circumstances of the case have to be considered. Lord Nicholls (paragraphs 8 and 12), Lord Hope (at paragraph 39) and Lord Hutton (at paragraph 69) make it clear that the 'reason why' question does not always have to be considered first and it is not an error of law for a Tribunal to consider whether there has been less favourable treatment before it considers the reason for such treatment. What is essential is that the Tribunal does establish the reason why the applicant is treated as she was. Was it on the grounds of sex which would be discriminatory, or for some other reason which would be non-discriminatory. As Mr Justice Elias said in Bahl (paragraph 126) the significance of identifying the comparator is that it identifies potential differences between the applicant and the comparator which could explain the differences in treatment:-

"Strictly, whether those factors are considered in the context of construing 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 Sharmoon 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 as to the make up of the hypothetical comparator, however the comparator is defined."

85. There may be circumstances where a comparison with a hypothetical male is impossible. Thus, where an applicant's pregnancy is a circumstance relevant to her case, being a circumstance which cannot arise in the case of a man, her claim for sex discrimination cannot be determined by a comparison of her treatment with the treatment of a hypothetical male comparator. Such comparison is not legally appropriate under the interpretation of the Act of 1975 in the light of the ruling of the European Court of Justice. Pregnant women in employment occupy a special position which attracts special protection. O'Neill v Governors of St Thomas More School [1997] ICR 33 at 42, Webb v EMO Air Cargo (UK) Limited No2 [1994] ICR 770 ECJ and [1995] ICR 1021 HL. In O'Neill Mr Justice Mummery, as he then was, said that an applicant in such circumstances did not need to show that her pregnancy was the only reason for the less favourable treatment, indeed it need not even be mainly on that ground.

The parties' submissions.

1. General.

86. The allegation that the Tribunal failed to approach or carry out its task correctly underpins all the grounds of appeal. Central to the criticisms of the decision is the fundamental complaint that there was a failure to make comprehensive or adequate findings of fact, a failure to consider the totality of the evidence, a failure to draw appropriate inferences, confusion of issues and failure to give any or sufficient reasons for numerous findings. As these general criticisms of the Tribunal's approach underlie all the grounds of appeal, we shall set out the general complaints first as well as dealing with them under each specific ground of appeal.
87. The general complaints of the Tribunal's approach and the manner in which it dealt with its task are as follows:-

i) No comprehensive findings of fact were made before the individual complaints were considered. As a consequence the Tribunal never looked at the overall picture and adopted the fragmented approach to its task criticised in Qureshi.

ii) The Tribunal's approach to the evidence was incorrect. They state, for example in paragraphs 182, 183, 184, 186, 217, 236, 313, 325, 328, 364 and 382, that there was 'no evidence' to support certain of Ms Madarassy's allegations. They state that there is 'no corroborative evidence' for example at paragraphs 182 and 108 where no corroboration was required. Indeed to seek corroboration from the Appellant was inconsistent with the burden of proof set out in section 63A.

iii) It failed to provide any or any sufficient reasons for its findings.

iv) It made no general findings of credibility in relation to either Ms Madarassy or Mr Boardman.

v) It made no proper detailed findings of fact and frequently recited each party's case without making a finding.

vi) It confused issues, in particular the September 2000 review and the February 2001 review.

vii) It failed to spell out its findings e.g. in relation to Ms Madarassy's drafting skills in paragraph 230 or in relation to the finding that Mr Boardman was 'Teflon Man'. The parties have to infer the Tribunal's finding which are not explicit or followed through in the decision.

viii) It failed to draw appropriate inferences, for example in relation to its finding that the wrong people had been interviewed in relation to the grievance.

88. The Respondent contends that these criticisms are misplaced. It is not the Tribunal's task to set out each and every piece of evidence to which it has been referred and say in respect of each whether the evidence is accepted or rejected. That would be a wholly unrealistic and unworkable task in a case of such evidential magnitude. There is no requirement to make findings of fact in relation to every piece of evidence before a Tribunal, nor any obligation to make any general findings of credibility, nor any obligation to make any specific findings of credibility in relation to each and every witness, as distinct from making factual findings based on the evidence of those witnesses. The decision is perfectly explicable on its face and certainly to the parties. Whilst the Tribunal state that there is 'no evidence' where there was evidence on the issue from Ms Madarassy, it is necessary to look at the substance of the findings. The Tribunal often means no more than there was no sufficient evidence for them to make a particular finding. Where there is a reference to 'no corroborative evidence' it is not a reference to corroboration in the strict sense. Where a conflict is difficult to resolve, it is proper for the Tribunal to look for other ways to help to resolve it in the evidence of others. The Tribunal is stating no more than that. Any confusion on some of the issues does not diminish or detract from the decision as a whole and its conclusions. The reasons why the Appellant essentially lost her case are clear; the Tribunal accepted Mr Boardman's explanations and rejected her allegations. The Tribunal did consider the totality of the evidence. They heard the evidence over many days and deliberated on it for four days. Their findings and their approach to the evidence are appropriate.

2. Out of time/continuing acts/extension of time.

89. Many of the alleged acts of discrimination were, when taken individually, out of time because they occurred more than three months before Ms Madarassy issued proceedings on 13 December 2001. The Tribunal therefore had to consider under section 76 (6)(b) whether these acts were not isolated acts of discrimination but revealed a continuing and discriminatory state of affairs extending over a period. Hendricks
90. The Tribunal found that allegations 1.2, 1.3, 1.4, 1.6, 1.7, 1.10, 1.13, 1.14, 1.16, 1.17, 1.18 and 1.22 were out of time and not part of a continuing act. In each case it refused to extend time as it concluded that it was not just and equitable to do so. The Appellant contends that most of the allegations arose out of specific matters involving her manager, Mr Boardman. He downgraded her status and role, undermined her position, deliberately and unfairly criticised and downgraded her performance as a consequence of his discriminatory attitude. This culminated in her selection for redundancy. As that allegation was in time all the other allegations should have been found to be parts of a continuing act culminating in that final detriment of dismissal. There was a continuing discriminatory state of affairs with all the incidents clearly linked. The Tribunal found that the comments in the selection matrix for redundancy were consistent with those in the February 2001 performance review. Yet they ignored that finding when considering whether there was a continuing act.
91. Furthermore the Appellant submits the Tribunal decided the issue of whether there were continuing acts before it decided what all the material facts were in the case. This can be seen from the structure of the decision. The Tribunal make findings in relation to the question of continuing act by reference to each individual complaint without having made proper comprehensive findings or drawn the necessary inferences under the heading The Material Facts. The failure to make such findings of primary fact first, and then consider inferences, shows that the Tribunal either decided the issue of continuing act on the basis of limited findings made under the heading the Material Facts, or took almost all of Ms Madarassy's allegations separately and in isolation and decided that they were not part of a continuing act. What it did not do, which it clearly should have done, was to consider all the alleged incidents together and then decide whether or not they amounted to linked parts of an act extending over time. It was particularly important for the Tribunal to look at the whole of the evidence before concluding whether there was a continuing act. The Employment Tribunal did the opposite and as a consequence is likely to have lost sight of the wood for the trees.
92. The Appellant submits that the fact that the Tribunal looked at the complaints in isolation without looking at the whole picture is demonstrated by inconsistencies in their findings. In paragraphs 237 and 238 of the decision the Tribunal found that denigration of the Appellant's achievements was a continuing act in relation to the Videoton deal. In paragraphs 240 – 243 however the Appellant's exclusion from a meeting concerned with Videoton was found not to be part of continuing act. The same applies to the expropriation allegation which the Tribunal deal with in paragraph 305. No finding at all was made on the issue of continuing act in relation to allegation 1.19. It is further submitted by the Appellant that the Tribunal do not express the Hendricks test at paragraph 269 but earlier tests referring to 'continuing regulation, rule or policy.'
93. As to the exercise of its discretion, the Appellant submits that the Tribunal appears to have reached its conclusions before having made any finding, finds prejudice where there is no evidence for it, does not properly explain why it rejected the Appellant's evidence that she was fearful of the impact on her employment, makes no real finding on her truthfulness, finds long delay without defining it, and when none existed because of a period of maternity leave, and hence fails to exercise its discretion properly.
94. The Respondent submits that the Tribunal found that there was no continuing or discriminatory state of affairs extending over a period. The Tribunal was entitled to consider the question of continuing act as part of its consideration of each of the specific allegations raised by the Appellant on the basis of appropriate factual findings. It found some acts to be continuing e.g. title in 1.1 and others to be not and clearly looked at the evidence as a whole. If there is no discrimination at all there cannot be a discriminatory state of affairs. There are therefore no acts to link, no thread, no practice. It is a matter of evidence as to whether a practice or a state of affairs exists. (Hendricks paragraphs 48 and 52, and Owusu v London Fire and Civil Defence Authority [1995] IRLR 574 at paragraphs 20-23).
95. The approach of the Tribunal was, the Respondent submits, entirely appropriate. A similar approach was adopted in the case of Henry and the Court of Appeal rejected the allegation that the Tribunal had failed to look at the matters cumulatively. They had considered each and every specific incident, made clear and firm findings of fact upon them and were entitled to conclude upon that basis that the conduct could not be regarded as an act extending over a period. That is precisely what happened here. As to paragraph 354 of the decision the Employment Tribunal is only saying that the redundancy matrix reflected the assessment in 2001, not that there was any link between them. The Videoton incident set out in paragraph 240 relates to one meeting on one date and is an entirely discrete incident. There is therefore no inconsistency. The same applies to the findings on expropriation.
96. The Respondent refers to paragraph 365 of the decision where the Tribunal states that it has considered the dismissal in relation to 'all the matters leading up to the dismissal as set out above'. This shows that they did properly consider the whole picture, though that is in any event clear from the findings that they made.
97. In so far as the exercise of discretion is concerned the Respondent submits that there is no basis for saying that the Tribunal erred in principle or were plainly wrong. It is clear from paragraph 176 that one of the reasons that the claims were out of time was because the Appellant herself only felt that the pieces about her treatment began to fall into place after she was told about the risk of redundancy in September 2001. Prejudice does occur with the passage of time. There was no error of principle.

3. Approach to evidence and burden of proof.

98. The Appellant submits that the Tribunal failed to apply the guidance set out in Barton and Anya. Its evaluation of the evidence is at odds with the principles underlying both the pre-amendment law and especially section 63A of the Act. It is unusual to find direct evidence of sex discrimination and the assumptions of employers therefore need to be considered. The Tribunal must ask itself what inferences can be reasonably drawn from the primary facts found and once the facts from which an inference could be drawn that the employer has acted unlawfully on the grounds of sex are proved, then the burden shifts to the employer and it is for the Respondent to prove that it 'did not commit that act.'
99. The Employment Tribunal, the Appellant submits, failed to follow the guidance by failing to make comprehensive findings of fact before it considered individual complaints, by failing to draw inferences, by failing to evaluate the totality of the evidence, by requiring corroborative evidence when it was not required, by failing to make general findings of credibility in relation to Ms Madarassy and Mr Boardman, and by failing to give adequate reasons for their findings.
100. At the heart of these criticisms of the decision and the numerous exemplars relied upon is the complaint that the Tribunal has failed to make sufficiently detailed findings, in particular by not assessing the Claimant's case adequately, and by failing to spell out its reasons in a sufficient or coherent way. Both in this ground and in the third and final ground it is alleged that there was a failure to ask the 'reason why' question.
101. As a consequence of these findings, the Tribunal imposed a higher than usual burden of proof upon the Appellant.
102. The Respondent submits that the Appellant failed to prove facts from which a conclusion of discrimination could be reached. In the absence of such proof, the burden under section 63A did not shift to the Respondent. The Tribunal rejected all but one of the Appellant's allegations and failed to find the facts in her favour from which discrimination could be inferred. They accepted the Respondent's explanation and were satisfied that sex was not the reason for the treatment. They reminded themselves of the need to find primary facts and draw relevant inferences by referring to Anya in paragraph 170 of their decision. It cannot be said, nor indeed has it been said, that it failed to set out the law adequately. It follows, the Respondent submits, that on the perfectly proper manner in which the Tribunal assessed the case and made its findings, the threshold of section 63A was not crossed and the burden did not shift. It was not necessary for the Employment Tribunal to discuss in express terms the reversal of the burden. It is sufficient that they performed their task adequately. The attempt to criticise the decision on the basis of inadequate findings of evidence or inadequate reasoning, are in truth no more than an attempt to challenge the Tribunal's decision on the facts.

4. The burden of proof and the Tribunal's use of the hypothetical male.

103. The Appellant contends that the approach to the burden of proof set out in paragraph 175 of the Tribunal's decision does not follow the wording of section 63A nor the approach in Barton. The Appellant was being asked to prove less favourable treatment than a hypothetical male and required to provide corroboration for her own evidence. The Tribunal refers only to the hypothetical man, ignores the issues of pregnancy and the facts and the evidence it did find from which inferences could be drawn. Indeed it only considers inferences in four out of thirty-three allegations.
104. The Tribunal fails to compare Ms Madarassy's treatment to that of her male colleagues. Actual comparators were listed but comparisons are only made with a hypothetical male. We note that leave was not given for this criticism.
105. In particular the Tribunal separated the issue of disparate treatment from the possible causes of it. They did not enquire into the mental process of the alleged discriminator by asking why did he or she behave as he or she did. It failed to ask the 'reason why' question. At paragraph 364, dealing with the allegation that the internal complaint of sex discrimination was not completed before her employment terminated the Tribunal find (paragraph 429) that the correct people were not interviewed. Yet at paragraph 364 the Tribunal failed to make reference to this or draw inferences from it. This is a consequence of looking at the individual allegations of discrimination in isolation rather than looking at the whole picture. Comparison with the hypothetical male is not necessary in such an instance. As elsewhere the Tribunal fails to consider the motives or the mental processes of those involved in the inadequate investigation.
106. Where the treatment may be on the grounds of an applicant's pregnancy or maternity leave no comparison with a hypothetical male is possible or allowed under Webb or O'Neill. The failure to set objectives on Ms Madarassy's return from maternity leave was a detriment plainly related to that maternity leave. As such it was a detriment connected to her pregnancy.
107. Whilst the Appellant was away on maternity leave she was not informed of the meeting attended by ECM on 11^th June 2001 when at an initial briefing meeting the equity new issues group was given a general awareness of what was going on in relation to the restructuring of the Respondent. She was not told of potential redundancy. The whole team had effectively rebranded themselves by the time she returned. Mr Adams had been a specialist in healthcare and Mr Salam in technology and communications before the Appellant went on maternity leave but they had particularly started focusing on it after restructuring when Ms Madarassy was still on maternity leave. It was inevitable in those circumstances that the disadvantage she suffered by not getting the appropriate information was caused by her pregnancy and maternity leave. The use of a hypothetical male in such circumstances was both wrong on the authorities and misleading.
108. The phone call dealt with at paragraph 345 of the decision showed that Mr Boardman had already decided to make Ms Madarassy redundant and was prepared for anyone to be given that information before the end of the consultation period. If such a phone call was made a prima facie case was raised.
109. The approach of the Employment Tribunal to the burden of proof, requiring the Appellant to prove that she had been less favourably treated than a hypothetical male and to prove that this was because of her sex using evidence independent of her own, imposed a higher than the usual burden of proof contrary to section 63A. The failure to consider the 'reason why' question was fatal to its reasoning. The Tribunal at no time said that it had in fact reversed the burden of proof.
110. The Respondent submits that the Tribunal set out section 63A at paragraph 162 of its decision and applied it correctly. Before the burden of proof can shift to the Respondent under section 63A the Appellant must have proved facts from which discrimination could be concluded. Thus she must show not only that she has been less favourably treated than an actual hypothetical comparator but also that the circumstances of the less favourable treatment are such as to properly permit the drawing of an inference that it was on the ground of her sex. There is no need to state that the burden of proof was reversed since the Tribunal found no less favourable treatment in relation to the Appellant's allegations. There was therefore nothing which would require the burden to shift. The mere existence of a detriment cannot in itself cause the burden to shift. Unreasonableness does not equate to discrimination.
111. The authorities do not require Tribunals to ask the 'reason why' question before identifying the characteristics of a hypothetical male comparator. The Tribunal must ask itself whether the treatment of the applicant was on the grounds of sex i.e. discriminatory or for some other reason i.e. non-discriminatory. Bahl paragraph 126. Here the Tribunal accepted the non-discriminatory reasons advanced by the Respondent in preference to those advanced by the Appellant and clearly asked itself in all the paragraphs complained of, what the reason for the conduct was. A failure to construct a hypothetical comparator 'may raise doubts as to whether the Tribunal has properly considered all potentially relevant explanations when identifying whether or not unlawful discrimination exists'. Bahl paragraph 116. Paragraph 175 of the decision does not, as the Appellant contends, set out an incorrect legal approach. The Tribunal had to ascertain whether there was less favourable treatment than a hypothetical male comparator and if so what was the reason for that treatment. The paragraph does not say that the Appellant is being required to prove that her treatment was on the ground of her sex. None of the examples relied upon by the Appellant in paragraphs 189, 213 – 218, 287, 311 and 313 of the decision or the exemplars thereto support the Appellant's contention.

Conclusions.

1. General.

112. It is the duty of an Employment Tribunal to consider the evidence before it with care. It must ascertain the issues, and follow them through to a reasoned conclusion. It does not however have to set out or reach findings upon every piece of evidence before it. The Tribunal must make findings upon the factual issues central to its conclusions. It is important in discrimination cases for the Tribunal to discover what was in the mind of the alleged discriminator as there will generally be no direct evidence on this point. The appropriate inferences must therefore be drawn from the primary facts and the surrounding circumstances considered. If the totality of facts is not properly weighed then, as Mr Justice Mummery said in Qureshi, the eloquence that the cumulative effect of the primary facts might have upon the issue of discrimination will be diminished.
113. This process does not however have to be carried out in any particular order. Provided it is properly performed the Tribunal may set out its findings in the order it considers appropriate. Thus, here, provided the findings upon the facts essential to the conclusions are made, it does not matter if they are made partly under the heading The Material Facts and partly under a heading relating to each individual complaint. There is no error in principle in approaching the matter in this way provided, as we have already emphasised, that the evidence is properly considered, findings essential to the conclusions made, and inferences appropriately drawn after consideration of the totality of the evidence.
114. Nor is it necessary to have a separate section dealing with the credibility of the key witnesses. There is no need for such a set piece review of credibility provided that the evidence of each witness is properly weighed and considered and findings made upon it. The absence of general findings of credibility in relation to the two principal witnesses, namely Ms Madarassy and Mr Boardman is not an error of approach by the Tribunal. Their combined evidence took some eleven days and their evidence is considered in detail in the decision. Whether or not particular errors on important areas of evidence have been made will be considered below, but there is no general failure apparent in the manner in which the Tribunal dealt with their credibility.
115. The task facing an Employment Tribunal in such circumstances is a heavy one. Seventeen days of oral evidence, documentary evidence consisting of seventeen lever arch files, over two hundred pages of written submissions and four days' deliberation indicates a lengthy and detailed hearing. The Tribunal's decision in some 76 pages seeks to give a detailed analysis of the issues and evidence before it. When considering the specific criticisms made against the Tribunal in the amended grounds of appeal we must bear in mind that we must give a generous interpretation of the Tribunal's reasoning, respect the circumstances in which a Tribunal works, and not therefore subject their reasoning to an unduly critical analysis. (Shamoon).
116. The Appellant submits that there are numerous occasions where the Tribunal has referred to there being 'no evidence' on a particular issue when there clearly was evidence, for example, the evidence of Ms Madarassy. On other occasions the Tribunal refers to there being 'no corroborative evidence', when no such evidence was required. We accept the Respondent's submission that these phrases should not be taken literally. The Tribunal when referring to there being 'no evidence' are in effect saying that there was no evidence sufficient to persuade it, or no evidence from which it was able to make a particular conclusion, in other words no evidence sufficient to discharge the initial burden of proof imposed upon the Appellant. The reference to corroborative evidence when corroboration is not required in a strict sense should not again be taken literally. It appears to be no more than that where there is conflict which is difficult to resolve, the Tribunal have looked for other ways of seeking to resolve it in the documents and the evidence of others.
117. There are occasions where the Tribunal does not spell out its full findings. For example in paragraph 230 where they do not explain what the justification was for Mr Boardman's concern about Ms Madarassy's ability to produce good written documentation. It is, as was accepted in argument, likely to be a reference to paragraph 97 where the Tribunal expressed the view that a draft by Ms Madarassy was 'not the letter of a native English speaker'.
118. We also accept that the Tribunal appear to confuse the September 2000 and February 2001 performance reviews. They also considered the wrong appraiser in the 360° exercise, namely Mr Salam, and did not use the correct appraiser, Mr Stanley, and apparently make inconsistent findings as to the extent to which Mr Adams worked as a specialist in healthcare and Mr Salam as a specialist in technology and telecommunications before and after Ms Madarassy went on maternity leave. (Paragraphs 124 and 313.) We consider the significance of the errors and their impact upon the decision later in this judgment. We consider specific criticisms of the decision under the individual grounds of appeal but note before doing so that we do not consider that in its general approach to the evaluation of the evidence or its fact-finding function, that the Tribunal made any error of law. It was a well-considered detailed judgment which sought to address the principal issues before it.

2. Out of time/continuing act/just and equitable extension.

119. The Employment Tribunal set out section 76 of the Sex Discrimination Act 1975 at paragraph 172 of its judgment. It referred to the case of Owusu in paragraph 197. It did not set out the decision in Hendricks as although that had been recently reported it was not cited to it. The Tribunal concluded that in some instances there was a continuing act, for example, in relation to Ms Madarassy's title in the sense that her title was used throughout her employment (paragraph 185) but in other instances it found that there was not a continuing act. It considered the question of continuing act in relation to each of the individual complaints made by the Appellant. It considered her dismissal in relation to all the matters leading up to it as set out in their judgment before paragraph 365, that is the whole of her case on unlawful discrimination.
120. The real question, as Lord Justice Mummery said in Hendricks is whether there is an act extending over a period, as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed. We are satisfied that the Employment Tribunal answered this question. They set out the section correctly, considered all the evidence, and concluded that there was no discriminatory state of affairs. Whilst they did not set out in terms the test in Hendricks, which had not been cited to them, they decided that there was no act extending over the period as distinct from a succession of unconnected or isolated specific acts. In other words they answered the real question posed under the section. They examined the substance of the complaints, they considered the specific complaints individually, made findings upon them and rejected all of them bar one. In these circumstances, as the Court of Appeal said in Henry they were fully entitled to conclude that the conduct could not be regarded as an act extending over a period of time within the meaning of that expression under the Act. Also as in the case of Henry, each of the specific findings was, in the event, adverse to the Appellant save one. In other words the Employment Tribunal found that with one exception there were no individual acts of discrimination and there was no discriminatory state of affairs. The Tribunal may not have set out the revised test in Hendricks but it did answer the real question as described in that case (paragraphs 48 and 52).
121. We are satisfied that the structure of the decision does not imply that the Employment Tribunal approached the issue in impermissible ways. It does not follow that they decided the issue of continuing act on the basis of limited findings of fact made prior to paragraph 175 of its reasons. Nor that it considered almost all of the allegations made by the Appellant separately and in isolation. The Employment Tribunal heard the evidence and the submissions and considered all of those for some four days before reaching its conclusions. There is no reason to suppose, particularly in view of what was said in paragraph 365 about considering all the matters leading up to the dismissal, that they did not have the whole picture in mind when making their decisions. They did not lose sight of the wood for the trees.
122. We are not satisfied that there is any inconsistency between the findings in paragraphs 237, 238 and 241 on Videoton. The first dealt with Ms Madarassy's standard of achievement in continuing transactions and the second, namely the Videoton meeting, related to one specific incident which occurred on one particular day. Paragraphs 304 and 305 relating to expropriation, relate to a particular time and were not continuing. This was a matter of fact for the Employment Tribunal to find. The Employment Tribunal found that the performance review in 2001 (paragraphs 268 – 282) was not a continuing act. The Appellant alleges that it then went on to make an inconsistent finding at paragraph 354 when it found that the redundancy selection matrix of around 2 October 2001 reflected the 2001 assessment Mr Boardman had made of the Appellant's abilities, namely that they were not up to the Nomura standards. We do not consider that the Tribunal is guilty of ignoring its own findings. The fact that the selection matrix reflected the earlier assessment of abilities demonstrates a consistency of view which Mr Boardman had about the Appellant's performance but does not necessarily show any pattern of behaviour. The Tribunal found that it did not. Nor could such a view be held to be a discriminatory act or evidence of a continuing discriminatory state of affairs. The Employment Tribunal was justified in the finding which it made.
123. As to extension of time the Tribunal deal with the issue at paragraphs 176 – 178. In exercising their discretion they found that Ms Madarassy had not put forward any good reason for the delay in presenting her claim. She was well used to dealing with lawyers in business and was very intelligent and articulate. They felt she had not explained her fear of impact on her employment and found that the suggestion that her employment was not secure was not a good reason to allow her various claims to made out of time. It is to be noted that in paragraph 176, in the submissions there cited, it is said that the applicant said in evidence that she felt that the pieces about her treatment only began to fall in place after she was told that she was at risk of redundancy in September 2001. It was only then that she saw a mosaic of discriminatory acts emerging.
124. These were all matters which the Employment Tribunal was entitled to find and were circumstances they could properly take into account in exercising their discretion. They also noted that she did have a complaint which was in time namely redundancy.
125. Her oldest complaint was 2 years out of time i.e. from when she was first employed and her latest some 5 months out of time. There is no evidence of specific prejudice to the Respondent cited in paragraph 177.5 but the longer the delay the greater the risk of prejudice arising. We are told that it was put in argument before the Employment Tribunal that the Respondent would suffer specific prejudice in finding it more difficult to establish who were the bonus comparators and hence justify the bonus.
126. We are satisfied that there was ample material upon which the Employment Tribunal could exercise their discretion in the manner in which they did. We can see no basis for contending that the exercise of its discretion was plainly wrong and ought to be interfered with. The Employment Tribunal was entitled to make the findings it did, including its conclusion that she had not explained her fear of impact on her employment to them. The EAT will not interfere lightly with the exercise of a wide discretion unless the Employment Tribunal erred in principle or was plainly wrong. Neither of those situations apply here and we see no error of law in the Tribunal's decision upon this issue.

3. Approach to the evidence and burden of proof.

127. The Employment Tribunal uses the expression 'there is no evidence..' where there is evidence, namely that of the Appellant supporting her complaint. We are satisfied, as indicated earlier, that although this phrase is used inaccurately on occasions in the judgment its meaning from its context is plain. Its only sensible interpretation is that the Tribunal is stating that there is no sufficient evidence to satisfy them that the complaint is proved to the appropriate burden and standard of proof. We deal with some individual instances below. Nor do we consider that the use of 'no corroborative evidence' indicates that the Tribunal was setting the wrong burden of proof by requiring corroboration where none was required, and when they ought to have been contemplating whether the burden had shifted under section 63A. We are satisfied that they used this expression to mean that where there was a conflict which was difficult to resolve they looked for other evidence in order to help to resolve it. This can be seen from paragraph 108 where, in relation to whether or not Mr Boardman had discussed the addition of Mr Dean as the sixth 360° appraiser for Ms Madarassy, he had discussed this with her before doing so. The Tribunal said:-

"There is a direct conflict on the evidence and there is no corroborative evidence. We are therefore not able to find that Mr Boardman did discuss it. It is likely that he took licence from the list of names given to him by Ms Madarassy on 2 January 2001 where Mr Dean's name appears at the top."

128. The Tribunal are therefore finding that in the absence of corroboration of Mr Boardman's evidence they are not prepared to find in his favour, so went on to make a finding on what they regarded as the probabilities. In paragraph 182 the Tribunal find that there was no corroborative evidence that a discussion as to business cards took place and that it was therefore unable to make a finding on it. Again, it seems to us that it means that it was not satisfied that there was sufficient evidence upon which it could make a finding. The choice of language does not indicate that a higher standard of proof was being applied than that which the law required.
129. The Employment Tribunal spent 4 days deliberating on the evidence and submissions. There is no reason to disregard its statement at paragraph 365 that it considered the Appellant's dismissal in relation to all the matters leading up to it as set out in the earlier paragraphs of its decision. It follows that it did consider the evidence as a whole in reaching its conclusions. The fact that it made some of its findings under a general heading of the material facts, and others under the specific headings of the thirty-three individual complaints, does not in our judgment indicate an incorrect approach.
130. We propose to consider the detailed criticisms made of the decision in respect of this ground of appeal under two separate headings, firstly inadequate findings of fact and secondly inadequate reasoning. We have in the course of this exercise considered the exemplars set out under the grounds of appeal and the further examples from paragraphs 62 – 92 of the Appellant's skeleton argument and the Respondent's comments thereon in their skeleton argument, as well as each sides oral submissions.

Inadequate findings of fact.

(i) Ms Madarassy's title.

131. The complaint here is that the Tribunal fails to deal adequately with the allegation, which is considered in the decision between paragraphs 178 and 186. The criticism is that the Employment Tribunal failed to take into account the evidence, including documentary evidence which supported her claim that she was a senior banker, not as the Tribunal found, an Associate Director. The consequence of the lower title was, she contended, that she was asked to undertake tasks which reflected this lower status. The Tribunal however found that the Appellant's title was Associate Director, which was on the facts senior to Senior Banker and that there was no evidence from which the Tribunal could find that her title was retroactively changed.
132. As the Respondent submits, however, the Appellant's own evidence in documents prepared by her during her employment directly contradicted her own assertion, stating for example in her grievance that 'my job grade throughout was Associate Director' (paragraph 178). The Tribunal had considered the Appellant's statement, oral evidence and her counsel's submissions. There was a clear basis upon which it could reach the conclusion it did, and this criticism is in essence a complaint that the Tribunal's conclusion was perverse even though that ground forms no part of the appeal. We are satisfied that there is no justification in this complaint. The Tribunal considered the evidence and reached a conclusion which was open to it upon that evidence. There was no obligation to set out in detail each and every single item of evidence put before it.

(ii) Abusive behaviour by Mr Boardman after the date of her pregnancy became known.

133. The Appellant contends that the abuse began in September 2000 when she said her manager discovered or suspected that she was pregnant and the Tribunal should have considered whether there was a change at that time in his behaviour towards her, and if so the reason for that change. It was not sufficient merely to decide, as it did, that her manager also shouted at others. Furthermore, it is submitted that the Tribunal heard undisputed evidence from Ms Madarassy that she told three employees that she was pregnant in August and September 2000. This evidence could have given rise to the inference that Mr Boardman was aware of her pregnancy in September 2000, not in November 2000 as the Tribunal found. Ms Madarassy's evidence to this effect was set out in the final submissions.
134. These submissions do not however carry weight. There was no evidence that even if told, the employees referred to by Ms Madarassy had mentioned the pregnancy to Mr Boardman or any other employee. The Tribunal found that there was 'equality of shouting' and as neither Mr Boardman nor any of the Respondent's witnesses were, on the evidence, aware of her pregnancy until November 2000 there was no basis for considering whether there might be a change. The Tribunal took into account the evidence, and made a finding which it was entitled to make upon that evidence. There is no basis for this challenge.

(iii) February 2001 Performance Review.

135. This is an example of the overlap in the Appellant's submissions between the allegation that the Tribunal failed to make adequate findings of fact or deal properly with the complaints, and the allegation that their reasoning was inadequate. The exemplar contained the former in relation to this complaint and the body of the submission contains the latter. We shall deal with it under both headings.
136. The Tribunal deal with the 2001 Performance Review at paragraphs 271 – 282. The Appellant contends that the Tribunal failed to consider evidence that Mr Boardman deliberately downgraded Ms Madarassy's performance and or failed to draw inferences from the same. In particular it is contended that the Tribunal failed to consider the markings and comments about her two male comparators Jamie Adams and Salim Salam, failed to consider her allegation that the criteria used to assess her were different from those used to assess her comparators, failed to consider the allegation that certain of the phrases used in the appraisal were sexist, referred to a document which was not created to appraise Ms Madarassy and used it to describe her, failed to refer to the complimentary appraisal which did apply to her and failed to specify which of the 360° reviews about her were rejected by Mr Boardman.
137. The Tribunal found that the performance review set out strengths and weaknesses and that it set out Mr Boardman's view of the situation at that time. Thus, the Tribunal accepted that the views which Mr Boardman set out in the performance review about Ms Madarassy reflected his genuine views. The Tribunal had Ms Madarassy's evidence, statement and submissions before it when it deliberated on the matter and it concluded that she was not unfairly treated. It is stated at paragraph 281 of the decision that it took the final submission fully into account. These included the matters set out in the exemplar relating to the 2001 Performance Review.
138. At the centre of this issue was Mr Boardman's assessment of Ms Madarassy's strengths and weaknesses as an employee. He was obliged to take into account the 360° comments to give him a balanced view of the employee's performance. As manager he had to be accurate, impartial and objective when writing the performance reviews but he was the one responsible for writing the performance review and providing the overall performance rating. The Tribunal note in paragraph 279 of the decision that Mr Boardman's performance review marked Ms Madarassy with an overall rating of 4, which is 'partially effective'. This is noted by the Tribunal to be 'below the Nomura standard' in paragraph 113 of its decision. This was Mr Boardman's view of the situation at the time of the performance review in February 2001.
139. The Tribunal reviewed the 360° appraisals for Ms Madarassy describing some as positive and some not. The Tribunal summarises the 360° appraisals, but in the course of doing so mistakenly confuses an appraisal of Mr Salam for an appraisal of Ms Madarassy. As a consequence of considering this incorrect appraisal form the Tribunal failed to consider the correct appraisal form on Ms Madarassy which was from Mr Stanley. Whereas the appraisal of Mr Salam, had both positive and negative comments, in the sense that there were entries in both the column for strengths and the column for opportunities for development, the appraisal by Mr Stanley of Ms Madarassy had no negative comments at all, in other words the opportunities for development column was left blank. It is clear from paragraph 109 of the decision that the Tribunal had Mr Stanley's appraisal of Ms Madarassy in mind but whether they at some stage studied it, is not known. The appraisal of Mr Salam was less favourable than that by Mr Stanley on Ms Madarassy. It was however one of six 360° appraisals, and when the correct six appraisals are taken into account the Tribunal's finding that the evidence of the 360° appraisals was a mixed bag, remains correct. We do not consider that their analysis of the appraisal in paragraphs 271 – 282 is overall an incorrect or unfair analysis. The error should not have been made but it does not vitiate the Tribunal's findings on this issue. Nor in our view does the fact that the Tribunal did not identify which of the 360° comments Mr Boardman discounted on the basis of his knowledge of the individual reviewer. The assertion that the criteria used for her male comparators were different, is difficult to follow. The objectives set were different, but not as it would appear to us, the criteria.
140. As to the allegation that the Tribunal failed to consider certain phrases in the appraisal which were sexist, the Tribunal considered the Appellant's final submissions set out between paragraphs 88 – 94 of those submissions. The Tribunal stated that it took those fully into account. The submissions included detailed comments upon the review and the complaint that the phrases such as 'tries to please' or 'needs to think more about the rationale for doing a task' were sexually biased comments. The Tribunal took these into account but were not obliged to make specific findings on each and every complaint. It had to make findings upon the factual issues essential to its conclusion, not on every detail of evidence or complaint put before it. We are satisfied that the Tribunal performed this task when dealing with the performance review, and made findings which were open to it on the evidence.

(iv) The reason for dismissal and pool of employees for the purpose of selection for redundancy.

141. It is contended on behalf of the Appellant that the Tribunal failed properly to consider the absence of a job description for Ms Madarassy. This meant that the full extent of her duties, and what she was to be capable of undertaking as part of her role, were not properly considered. Without this it could not determine whether her position was in fact redundant, or give proper consideration as to the comments in the redundancy matrix about her skill set.
142. The Tribunal noted that no job description had been written for Ms Madarassy in paragraph 133 of its decision and it appears that there was no evidence before it that a job description had been prepared for either of her comparators in the redundancy exercise.
143. The Tribunal considered the facts relating to the redundancy in paragraphs 130 – 138, paragraphs 330 – 333, paragraphs 353 – 354 and paragraphs 395 – 403. It gave detailed consideration to the facts and concluded that the redundancy selection matrix reflected the assessment by Mr Boardman of Ms Madarassy's abilities and was consistent with the 2001 Performance Review. (Paragraphs 354 and 282). In paragraph 403 the Tribunal was satisfied on the evidence that there was a diminution in the work of Ms Madarassy and that the reason for her dismissal was redundancy not her pregnancy, maternity leave or the fact that she had young children. The evidence before the Tribunal justified such a finding and the absence of a job description does not undermine it.
144. The Appellant also alleges that the Tribunal should have noted that Mr Iosio was not used as a potential comparator and should have considered the drawing of appropriate inferences from that exclusion, and the fact that he became a permanent member of staff on the day that Ms Madarassy went on maternity leave even though he was more junior than her. If the reason for redundancy was a downturn in business generally, and in particular in emerging markets, the Appellant contended that it was suspicious that Mr Iosio was not considered at all. The Tribunal however concluded at paragraph 407 that Mr Iosio was not compared with Ms Madarassy because he was a junior employee, that is, for a non-discriminatory reason. At paragraph 412 the Tribunal noted that it had not been argued in the pleadings or further particulars that Mr Iosio was an appropriate pool member nor had Ms Madarassy asked for him to be included in the pool. There was ample material before the Tribunal to enable it to reach the conclusion which it did, that the selection criteria and the pool were appropriate.

(v) The redundancy matrix.

145. It is contended on behalf of the Appellant that the Tribunal failed to consider and analyse Ms Madarassy's comments about the redundancy matrix. They refer in paragraph 353 to the allegation that the matrix included insulting, discriminatory and untrue statements about her without making any specific findings. They do not specify the evidence they relied upon in coming to the conclusion that the matrix reflected the assessment by Mr Boardman of Ms Madarassy's abilities. The particular phrases which were suggestive of sex discrimination were not considered.
146. The Tribunal had however as it stated, considered the evidence and the detailed written submissions from the Appellant. It found the matrix to be consistent with the 2001 Performance Review assessment which it considered at length between paragraphs 268 – 282. The Tribunal found in paragraph 354 that Ms Madarassy had not been treated less favourably than a man with the same performance reviews. They had considered those performance reviews in detail. They did not have to set out or make findings upon each and every phrase criticised by the Appellant. We consider that the conclusion which the Tribunal reached was open to it upon the evidence before it.

(vi) Search for alternative employment.

147. The Appellant submits that the Tribunal ignored evidence that the Respondent stopped searching for alternative employment for Ms Madarassy after mid-October 2001. Inferences should have been drawn from this and from the fact that Ms Madarassy was not told of a position until after it was filled. The Tribunal also failed to draw inferences from the fact that the Appellant had not been shown the selection matrix. Consideration of the allegations in isolation without looking at the whole picture and failing to make comprehensive findings of fact initially led, the Appellant submits, to the failure to consider inferences which should have been drawn from findings such as this. It was not alleged before the Employment Tribunal that the failure to show the Appellant the redundancy matrix was discriminatory.
148. The Tribunal found that Ms Madarassy was interviewed for one job within the Respondents but had insufficient experience to fulfil this role. (347 – 350) Her consultation period was extended on two occasions because of her daughter's operation. She therefore had a longer consultation period than male employees and hence received more favourable treatment. It was not suggested that there were in fact any other suitable openings available to her of which she was not informed.
149. When this evidence is considered as a whole, and taken against the background of the other evidence in the case, there was no basis for the drawing of an inference of discriminatory treatment. Furthermore the Appellant suffered no detriment.
150. As to the disclosure of the selection matrix, it was not disclosed to anyone other than Human Resources until disclosure in the proceedings brought by Ms Madarassy. The other comparators, Mr Adams and Mr Salam, were not therefore shown the matrix. No leave has been given to raise this point other than as an exemplar, and we do not consider that it can be raised as a separate ground of appeal. In any event the facts would not justify the drawing of any inference of discrimination, whether looked at specifically in relation to this issue or in considering the evidence generally.

(vii) Credibility of witnesses.

151. We have already stated that a Tribunal is not obliged to set out its findings of fact in any particular order. The fact that it dealt with the credibility of Ms Madarassy and the Respondent's witnesses under the heading of the individual complaints is not a valid criticism. Provided that the Tribunal made the necessary findings as to the credibility of witnesses in the course of its deliberations and adequately explained those findings in its judgment, it matters not where in the judgment they appear, except as a matter of style. Furthermore it is only the witnesses whose evidence is necessary for the primary fact to be found whose credibility has to be assessed. It is not necessary for the credibility of each witness to be assessed if their credibility is not relevant to the issues in the case.
152. As to the specific witnesses referred to by the Appellant, namely Mr Ii, and Mr Szijarto, the Tribunal did not in our view fail to deal with their evidence properly. The Tribunal stated that Mr Ii's evidence was of limited assistance and did not have to go further than that and Mr Szijarto's evidence was, according to the chairman, correctly recorded. Even if it was not it would make no difference to the decision.
153. Under the heading of credibility of witnesses the Appellant also contends that the Tribunal should have drawn inferences from Mr Ritchie's description of Mr Boardman as 'Teflon Man' always blaming others, saying it was someone else's fault and undermining others, and Mr Chaldecott's comment that Ms Madarassy was a 'perfectly adequate employee working for a not very nice man'. Mr Clarke submitted to us that the Tribunal do not relate Ms Madarassy's case to Mr Boardman's behaviour and the fact that he was loud and rude to everyone with equality of shouting does not explain his conduct towards her. We cannot accept that submission. The Tribunal found that Mr Boardman was demanding, had high standards, spoke forcefully to those who worked for him, and shouted at members of his staff. The Tribunal were entirely satisfied that he shouted at members of staff whether they were male or female and that there was equality of shouting regardless of gender or level within ECM. (Paragraph 228) The fact that he acted in this manner in order to blame or undermine others to escape criticism himself does not, on the basis of the Tribunal's findings, give rise to any inference of discriminatory treatment. The fact that he acted rudely to both sexes was a finding made by the Tribunal after it had heard the evidence. It was a finding that was open to the Tribunal. The fact that Mr Boardman was rude to both sexes because he was 'Teflon Man' and seeking to escape blame himself does not in our judgment give rise to any inference of discriminatory treatment. The Tribunal cannot be criticised for not drawing any such inference.

(viii) Downgrading of Ms Madarassy's performance and achievements.

154. It was an essential part of the Appellant's case before the Employment Tribunal that her efforts on a number of projects had been downgraded and expropriated. The Appellant alleges that the Tribunal simply failed to consider the work which the Appellant had done for the Respondent and failed to grapple with the evidence of her claim that her work had been expropriated. The Tribunal should, the Appellant submits, have considered or made specific findings in relation to the detail of each particular work project that Ms Madarassy was engaged upon. It failed to do this and in particular made a finding upon which there was no evidence in relation to the Videoton deal and failed to give sufficient weight to the clear and detailed evidence about her work and results on the Hermes Softlab deal. It did not make a finding as to whether the criticism of Ms Madarassy in relation to the Videoton deal was unfair or not.
155. The Appellant contends that in paragraph 239 the Tribunal ignores Ms Madarassy's own evidence that her performance was deliberately downgraded by Mr Boardman and that led to her redundancy. It is said that the Tribunal failed to make any reference to Hermes Softlab.
156. The Tribunal considered the deals which Ms Madarassy was involved in between paragraphs 48 and 81, Videoton second stage from 96 – 98, Hermes Softlab from 99 – 101, Ova Elektrik between 190 and 195, and Videoton from 196 – 212 and 240 – 243.
157. The Tribunal clearly had in mind all those deals and did not have to recite every detail of the evidence which had been placed before it in relation to each of those deals. Its consideration of the deals and Ms Madarassy's role in them is sufficient, and the fact they deal with each one individually and Videoton and Hermes Softlab in detail demonstrates that they had the whole picture of her work with the Respondent in mind when making their decision.
158. Expropriation is specifically considered at 304 – 306 against the background of the deals with which Ms Madarassy was concerned and which the Tribunal had set out. It found at paragraph 306 that there was insufficient evidence for it to make a finding on expropriation of less favourable treatment. The Tribunal considered the evidence and submissions properly and this finding was open to them.
159. The Tribunal dealt in detail with the Videoton deal. They found that Ms Madarassy's first draft proposal request outline was criticised by the Respondent's witnesses as inadequate (paragraph 74), that Mr Beattie expressed his concern after Ms Madarassy had produced a further draft proposal (paragraphs 75, 76). Mr Boardman was concerned about Ms Madarassy's ability to produce a good document and expressed that concern to Mr Sumino and brought in others to help. Mr Beattie was concerned at the state of the pitch, and gradually increased his involvement in the pitch. The completed pitch was submitted by hand by Mr Ii and Mr Arnold who were already in Budapest. This was done for costs reasons. (paragraphs 78 – 81)
160. The Tribunal found that the letter of 2 October 2000 which Ms Madarassy drafted to be sent to Videoton was 'not the letter of a native English speaker'.
161. Against the background of those findings the Tribunal (196 – 212) concluded that she had been criticised for her draft proposal request outline but was not less favourably treated than a hypothetical male would have been in the same situation. She suffered less favourable treatment by ceasing to be the deal leader but had not established that a man in the same situation would have been treated differently. As to her claim that she was effectively demoted the Tribunal found that she was not treated less favourably than a hypothetical male comparator in the same situation would have been 'if he had made no progress on the Videoton project'. (212) This finding clearly relates back to the findings at paragraphs 74 - 81 and paragraph 97 that two drafts of a proposal request outline were criticised and had to be redrafted with other people being brought in to assist, and concern expressed about the state of the pitch.
162. These detailed findings leading to the conclusion in paragraph 212 were clearly open to the Tribunal on the evidence before it.
163. In so far as the Hermes Softlab transaction is concerned, at paragraph 101 of its decision the Tribunal states that Mr Boardman gave evidence that he was rather disappointed with Ms Madarassy's performance on the Hermes Softlab transaction. He felt that the quality of her written work was not of the required standard and that there were some tasks she was unable to perform such as the preparation of the financial model and valuation which was prepared by Mr Iosio supported by Mr Murphy. Mr Boardman was also concerned about Ms Madarassy's client management skills and for those reasons was not able to distance himself from the day to day running of the Hermes Softlab transaction. Nevertheless he said that her work on that was an improvement on the earlier work she had done. (paragraph 101)
164. When the Tribunal conclude at paragraph 239 that there was no evidence that Mr Boardman criticised her work for any reason other than his concerns about its merit, and no evidence that he did this in order to heighten his own role, that conclusion is clearly based upon the matters that we have just set out in relation to the Videoton and Hermes Softlab deals. It is a conclusion that was open to it upon the evidence before them. It supports the finding that Mr Boardman would have treated anyone of his male staff that he was critical of in the same way. We can see no error in the manner in which the Tribunal dealt with the allegation that Mr Boardman downgraded Ms Madarassy's performance and achievement.

(ix) Drawing of inferences.

165. There is a general allegation that the Tribunal ignored evidence placed before it from which it could legitimately have inferred discrimination, examples of which have been raised and dealt with during the course of this judgment. Three further specific examples are given by the Appellant. Firstly an internal statement produced by a secretary, Jackie Roberts, about the attitude of Nomura to her returning to work part-time after maternity leave and secondly the evidence of Mr Ii about lack of management training, the under representation of women in management and the treatment of female employees. The Tribunal heard evidence from Mrs Gironi which rejected the allegation of discrimination by Mr Boardman. The Tribunal found Mr Ii's evidence of limited assistance.
166. Thirdly the Appellant contends that she was asked to provide further information in relation to her internal grievance which included a complaint of sex discrimination and yet she was sent a final letter of dismissal only a day later. There was also an inadequate investigation of her internal complaint of sex discrimination. The Tribunal itself believed that Miss Morrison, who conducted the investigation, did not interview the right people but only mentioned this in the context of unfair dismissal. An inference should have been drawn that there was disinterest on the part of Nomura in dealing with discrimination.
167. At paragraphs 360 – 364 the Tribunal found that the Respondent encouraged the Appellant to submit a written grievance, extended her employment on two occasions for an additional five weeks, asked on 16 October for details of the grievance 'sufficiently ahead of 21 November to allow an investigation before that date' but only received the grievance a matter of days before that deadline. The general fairness of the grievance procedure formed no part of the Appellant's specific allegations of sex discrimination. We accept the Respondent's submissions that in the circumstances set out in paragraphs 360 - 364 the Tribunal was entitled to decline, and had good grounds for declining to draw an inference of sex discrimination (364).

(x) Claims in respect of which no findings made.

168. The Appellant contends that the Tribunal failed to make a finding in respect of her complaint that the September 2000 objectives contained unfair insulting and sexually biased remarks about her.
169. The Tribunal had considered the submissions of the Appellant relating to the September 2000 objectives. The Claimant's allegation in 1.5 was that the comments in the objective were 'patronising and insulting'. The Tribunal had in mind that the Appellant alleged that they were in addition sexually biased as can be seen in paragraph 213 of the decision. They find, as the Respondent submits, that these comments would have been made of anyone in respect of whom a manager had concerns about their 'communication skills, written work and other matters'. (Paragraph 218) The Tribunal were entitled to make such a finding and did not have to set out in the process of reaching that conclusion, each and every other alleged inflexion which the comments were alleged to have borne. Its finding implicitly rejects any allegation of sexual bias. It finds that the comments arose because of concerns about her communication skills, written work and other matters.
170. Secondly it is alleged that the Tribunal did not resolve the dispute between the parties as to whether Ms Madarassy was country leader of Hungary and Turkey. A finding on this issue should have been made. We do not consider it necessary for the purpose of the Tribunal's conclusions for it to have made such a finding. In paragraph 47 of the decision the Tribunal found that Ms Madarassy had a steep learning curve in view of her previous experience, she had not managed a private equity project resulting in an IPO and did not have any experience of ECM execution. 'It was anticipated that once she had gained experience she might lead executions in CEE.' These were relevant findings as to her role which entitled the Tribunal to make the findings that it did amongst other findings, on expropriation and downgrading.
171. Thirdly the Tribunal did not deal with all the examples of Mr Boardman shouting at the Appellant or abusing her after she became pregnant. The Tribunal dealt with the shouting and abusive behaviour allegation at paragraphs 226 – 236. It found that Mr Boardman did not treat the Appellant any differently from other staff, male or female. There was no need for the Tribunal to recite each every single allegation of shouting. They had heard the evidence of Mr Boardman and the other witnesses who spoke about his conduct. They assess that in detail at paragraphs 226 – 236 and come to a conclusion open to them on the evidence.

Inadequate reasoning.

172. There is an overlap between these grounds and some of the grounds already considered under the heading 'inadequate fact finding'. There is also an overlap with the ground of appeal entitled 'The burden of proof and the Employment Tribunal's use of the hypothetical male'. The allegation in each case is that the Tribunal failed to provide any or any sufficient reasons for its findings in paragraphs 189, 202, 203, 204, 206, 209, 212, 218, and 282.
173. In paragraph 189 it is alleged that the Tribunal ignored documentary evidence that Mr Boardman was copied in on a document which showed that Nomura were taking credit for another institution's figures. The Tribunal failed to ask itself why Mr Boardman would ask Ms Madarassy to do something inappropriate and whether that was because he perceived women as the weaker sex and less likely to challenge him. The Tribunal should have dealt with Mr Boardman's motivation but did not, the Appellant alleged.
174. The Tribunal found at 187 that Mr Boardman said that it was inappropriate to add the words 'Nomura research'. It is difficult to see in these circumstances how this could have been an instruction to her to plagiarise another institution's figures. It concludes that there was no evidence that the Respondent would have treated Ms Madarassy less favourably than they would have treated a hypothetical man in the same circumstances. This is a finding which was available to the Tribunal upon the evidence which adequately explains the decision.
175. In paragraph 202 it is said that the Tribunal ignored the evidence of Ms Madarassy that she was the deal leader for Videoton and should have been involved in senior management decisions. The Tribunal found that she was an Associate Director and failed to show that she had been less favourably treated than a hypothetical male would have been in the same circumstances. In other words it was her level of seniority within the company rather than her sex which meant that she was not involved in senior management decisions.
176. In paragraph 203 the Appellant alleges that the Tribunal accepted her evidence that she was criticised but found that she had failed to show that she was less favourably treated than the hypothetical male would have been treated in the same situation. As earlier indicated in this judgment the criticisms of Ms Madarassy in relation to the Videoton transaction are set out in paragraphs 70 – 81 and paragraph 97. The criticism was that there were deficiencies in her drafting skills, requiring redrafting and other people to be brought in to help, causing concern at the state of the pitch. The reason for her treatment was therefore these deficiencies not her sex. We are satisfied that the reasoning here is adequate.
177. The same criticism is made in relation to paragraph 206 (repeated by the Tribunal at 209). We have already dealt with this under 'inadequate findings'. In view of the criticisms of Ms Madarassy's work on Videoton in paragraphs 70 –81 and 97, the Tribunal were entitled to conclude that a hypothetical male comparator subjected to the same criticisms would have been treated in the same way. Thus the Tribunal find that the reason for her treatment was the deficiencies in her work not her sex.
178. Although the amended grounds of appeal made a similar complaint in relation to paragraph 204 Mr Clarke did not, either in his written submissions or oral submissions to us, reiterate that point. It is not in our view arguable. Mr Beattie skipped lunch to continue working to meet an important deadline whereas Ms Madarassy did not. A conclusion of no less favourable treatment in such circumstances cannot be criticised.
179. Paragraph 209 is set in the amended grounds of appeal but was treated by the Appellant as being a repetition of the decision at paragraph 206. If the complaint was intended to be made in relation to the cancellation of Ms Madarassy's trip to visit Videoton on 10 August 2000 it would be unsustainable, as the reason for the cancellation was cost not sex. (Paragraph 81)
180. It is submitted on behalf of the Appellant that in paragraphs 210 –212 it is not clear whether the Tribunal accept that Ms Madarassy was told that she had been effectively demoted from the position of deal leader for Videoton. It might be that it had accepted her allegation but simply found no evidence of less favourable treatment. Whichever they had found, its approach is clearly inadequate, the Appellant submits. It needed to say whether the evidence was accepted or not, and if accepted, explore the reasons why the treatment was meted out to her.
181. The meeting at which it was alleged that this was said took place on 3^rd September 2000 when Mr Boardman and Ms Madarassy met for her review at the end of her probationary period. The Tribunal's finding was that if there was any criticism, it was because of Ms Madarassy's lack of progress on the Videoton project. This is not, as the Appellant alleges, an unclear finding. Although it is not spelled out, it is clear that it relates back to paragraphs 70 – 81 of the decision in which, as stated earlier in this judgment, the Tribunal found that Ms Madarassy's first and section draft were found to be unsatisfactory, other people had to be brought in to assist, there was concern at the state of the pitch, and Mr Beattie gradually increased his involvement in it. Those facts justify a finding that Ms Madarassy had made no progress on the Videoton project and that it was that reason, rather than her sex, which caused any negative comments about demotion that may have been made on 3 September. In view of this finding no inference as to discrimination could reasonably be drawn from the facts. The reason for the treatment was not Ms Madarassy's sex but her lack of progress on the Videoton project.
182. As to paragraph 218 it is contended on behalf of the Appellant that the paragraph is confusing and makes no effective findings as to what concerns the Respondent had about Ms Madarassy's work, when they had them and in respect of what project. They are not related to Videoton directly. Nor do they say whether the concerns were justified.
183. Paragraph 218 is difficult to construe. The section from paragraphs 213 – 218 deals with 'Objectives on Confirmation of Employment', that is the September 2000 objectives. The Tribunal then refers to the 2001 objectives in paragraph 214 when considering whether there was a continuing act. Paragraphs 215, 216 and 217 then deal with the 2000 objectives but paragraph 218 deals with the objectives in both September 2000 and those in 2001. We consider that the Tribunal's finding that the Appellant had failed to satisfy it that she was less favourably treated than a hypothetical male with concerns over his communication skills, written work and other matters relates to the subject of the complaint in 1.5, namely the September 2000 objectives. It is however a confusing paragraph, which requires careful reading.
184. We do not however accept that paragraph 218 is wholly unclear as to what concerns it refers to and when. It is true that the Tribunal does not restate which concerns it is referring to in this paragraph, but the section is dealing with September 2000. Paragraphs 74 – 81 show that there were concerns about Ms Madarassy's written work by September 2000. The quality of her work was assessed as between satisfactory and poor and it was said that she needed 'to upgrade considerably both in terms of quality of work and getting on with people'. (Paragraph 84) Mr Sumino was also concerned about her performance Mr Boardman told her. (Paragraph 86) Mr Sumino gave evidence.
185. It is our view that the Tribunal's conclusion is that the September 2000 objectives reflected Mr Boardman's genuine concerns about the Appellant's quality of work including communication skills, written work and other matters, and that the reason why the September 2000 objectives were written as they were was because of her competence in her work not because of her sex.
186. Whilst therefore this paragraph is not as clear as it might have been, we believe this central finding can nevertheless be understood.
187. In paragraph 230 the Appellant contends that the Tribunal failed to set out the evidence upon which it relied in concluding that there was some justification for Mr Boardman's concern about Ms Madarassy's ability to produce good written documentation. The Tribunal should have considered the criticisms, to what extent they were justified, and then whether the Appellant's complaint was appropriate. As the Tribunal did not make a detailed assessment of Mr Boardman as a witness in their reasons, including the fact he was 'Teflon Man' and adept at blaming others and undermining others, they did not, the Appellant submits, properly consider this complaint in context and did not provide adequate reasoning for their decision.
188. We are however satisfied that, again although not spelt out, it is clear that the Tribunal is referring to its own finding in paragraph 97 of the decision, namely that one of her draft letters to Videoton of 2 October 2000 was 'not the letter of a native English speaker'. There were we were told several documents drafted by Ms Madarassy before the Tribunal, and we have seen the draft of 2 October 2000 to Videoton and Ms Madarassy's own translation of the e-mail to her sister. The Tribunal was, therefore, able to form its own view on the basis of what they were able to see for themselves, when making their decision that Mr Boardman's concerns had some justification. Mr Goulding submitted that the Tribunal expressed their criticism of Ms Madarassy's draft of 2 October 2000 in paragraph 97 in a restrained courteous manner. In reality he submitted to us, the letter does not make much sense and does not read well. We agree with Mr Goulding that the Tribunal's meaning in paragraph 97 is clear. Their choice of wording, although infelicitous, does appear to be an attempt at a courteous understatement. It would have been better for them to spell it out but we are in no doubt that the Tribunal found the letter to be an example of a written communication containing some clear deficiencies.
189. As to paragraph 282 it is contended that the Tribunal give no account of which comments were alleged to be biased and unfair in the February 2001 Performance Review and what evidence it relied upon to find that those comments were valid. It appears, the Appellant submits, that the Tribunal had simply believed Mr Boardman in this regard but that would provide an insufficient basis for the decision. Credibility, as was said in Anya, is not the end of the road.
190. We have considered this paragraph under the previous heading of inadequate findings. The Tribunal found that the 360° reviews contained consistent messages both on Ms Madarassy's strengths and weaknesses. It concluded that the performance review set out the strength and weaknesses and that it also set out Mr Boardman's view of the situation at that time. The Tribunal is therefore finding that Mr Boardman was expressing his genuinely held view in the performance review. The Tribunal had set out the evidence and did not, in our judgment have to set out the comments alleged to have been biased and unfair and make a specific finding in relation to each of them. The reasoning is sufficient on this point, especially for those with knowledge of the evidence given and the submissions made at the trial. The Tribunal is not required to make a finding on every piece of evidence before it, nor, when they omit to refer to a piece of evidence does that mean that it was not considered. The Tribunal concluded that the appraisal process was not discriminatory and we are satisfied that there was evidence to justify that conclusion. We do not accept the Appellant's contention that Mr Boardman's criticisms were the opposite of the 360° reviews and raised a prima facie case of discrimination. Nor do we accept the submission that the gap in the reasoning was too big to be filled by reference to other parts of the decision.

4. The burden of proof and the Tribunal's use of the hypothetical male.

191. The Tribunal states in paragraph 175 of its decision, that after considering out of time, continuing acts and just and equitable extension,:-

"We have then considered whether Ms Madarassy was treated any less favourably than a male comparator would have been treated in the same circumstances and, if so, whether it was on the grounds of her sex or pregnancy. If so, the Tribunal has considered whether the Respondent has proved that it did not commit the act in question pursuant to section 63A(2) of the Sex Discrimination Act 1975."

192. The Tribunal set out the law correctly in paragraphs 161 – 172 and the Appellant does not challenge that this is so. There is no reason to suppose that the Tribunal did not have the terms of section 63A in mind when making their decision. We are satisfied that the burden of proof will only shift once the complainant has proved facts from which the Tribunal could properly infer that he or she had been discriminated against. A credible suggestion is not enough, there must be evidence adduced by the complainant from which discrimination could be inferred. If a prima facie case is so established the burden passes to the Respondent (Nelson paragraph 26, Barton paragraph 25(2),Pratt paragraph 20 and Wolff paragraph 26).
193. We do not consider that paragraph 175 indicates that the Tribunal approached the question of burden of proof incorrectly. The use of the word 'was' does not indicate that it was requiring the Appellant to prove any more than that which was required of her, namely to prove facts upon which inferences could be drawn that she had been less favourably treated. Unless a prima facie case that she was treated less favourably than a hypothetical male comparator would have been, on the grounds of her sex or pregnancy is raised, the burden will not shift. The wording of paragraph 175 of the decision is consistent with the authorities and the principles there expressed. It is neither inconsistent with section 63A nor the case of Barton.
194. It is not an error of law for a Tribunal to consider whether there has been less favourable treatment by reference to a hypothetical male comparator before it considers the reasons for such treatment. Identifying the comparator may identify potential differences between the applicant and the comparator which could explain why there were differences in treatment. Thus, the two issues namely the less favourable treatment issue and the reason why issue are intertwined. Whatever the precise route chosen by a Tribunal the essential question is whether the applicant was treated as she was on the grounds of her sex which would be discriminatory, or for some other reason which would be non-discriminatory.
195. We are satisfied that the Tribunal in this case has answered this essential question. It considered the evidence of all the witnesses and in particular that of Ms Madarassy and Mr Boardman, and decided that the reason for Ms Madarassy's treatment was the standard of her work as Mr Boardman genuinely perceived it to be, that is, a non- discriminatory reason. He had concerns about her written work, which the Tribunal considered, having seen contemporary documents, to be justified; he had concerns about her ability to prepare a financial model and valuation in the Hermes Softlab transaction (paragraph 101); he was concerned about her client management skills (paragraph 101); he felt unable to distance himself because of these reasons from the day to day running of the Hermes Softlab transaction; he assessed Ms Madarassy as 'below the Nomura standard' both in August and September 2000 (84 – 87) and February 2001 (111, 113). Mr Sumino informed her on 27 February 2001 that her communication and teamwork needed to be improved (114). Ms Madarassy had difficulty using the Bloomberg PC based system of delivering financial information and was unaware of the appropriate publications when she started undertaking the review of financial institutions on her return from maternity leave. (paragraph 127)
196. The Tribunal has not always expressed itself as clearly as it might have done, and has on occasions failed to spell out its findings requiring crosschecking and examination of the decision as a whole. Nevertheless we are satisfied that it is clear to anyone with knowledge of the evidence given and the submissions made at the trial, and on a proper reading of the detailed and long judgment, that the Tribunal approached the burden of proof and the hypothetical male comparator appropriately and answered the 'reason why' question. It concluded that there had been no discriminatory treatment, as the reason why Ms Madarassy was treated or criticised as she was, was because of the standard of her work not her sex.
197. We are not satisfied that the Tribunal failed to draw inferences where they should have been drawn. The fact that inferences were only considered in four out of thirty-three allegations does not support the Appellant's contentions. There is no obligation to mention expressly the drawing of inferences in respect of each allegation made.
198. As we have already stated, we are satisfied that the Tribunal did consider the evidence as a whole and in the course of the lengthy hearing and deliberations, considered all relevant surrounding circumstances.
199. It is not the obligation of the Tribunal to set out every evidential detail put before it. We are satisfied that it has considered the factual matrix properly and made findings upon the factual issues essential to its conclusions.
200. There are however specific criticisms made under this ground of appeal to which we now turn. The Appellant contends that the Tribunal's reasoning at 364 and 429 is inadequate as it does not consider the inferences that might be drawn from the finding of primary fact that the Appellant was dismissed before the investigation into her grievance had been completed. We accept the Respondent's submission that there is no inconsistency between paragraph 364 and paragraph 429. The facts are set out in paragraphs 359 – 363. She was encouraged to submit her written grievance in the first week of October and her employment was extended on two occasions for an additional five weeks. The grievance was in fact presented on 16 November 2001 very shortly before the final extension of her employment was due to expire. A finding that the Appellant had not received any less favourable treatment is not surprising in such circumstances. The finding in paragraph 429 that Miss Morrison did not interview the right people, and should have interviewed others apart from Mr Boardman in Ms Madarassy's own team, was part of her claim for unfair dismissal which was dismissed by the Tribunal. This particular allegation did not form any part of the Appellant's allegations of sex discrimination under 1.32, 'Investigation of grievance'.
201. The further specific examples of the failure to consider the mental process of the alleged discriminator and draw inferences are alleged to be in paragraphs 189, 202, 203, 204, 206, 209, 212, 218 and 282. We have already dealt with the allegation of plagiarism under paragraph 189. It was not clear how plagiarism could have arisen and the Tribunal found that the Appellant had not satisfied it that she had been less favourably treated than the hypothetical male would have been in the circumstances. This finding was one which was open to the Tribunal upon the evidence before it and is not deficient in failing expressly to consider the drawing of inferences.
202. We have already dealt with paragraphs 202, 203, 204, 206, 209 and 212. We are satisfied that the burden of proof was properly dealt with in these paragraphs and that the Tribunal made proper findings on whether discrimination had occurred. We reach the same conclusion on paragraph 345.
203. Paragraph 218 is difficult to construe, perhaps, it was suggested in argument due to a word processing error. However it seems that its finding related to the September 2000 objectives. The Tribunal concludes that these objectives were based on Mr Boardman's assessment of the Appellant's 'communication skills, written work and other matters that were of concern.' The Tribunal found on the facts that the Respondent's witnesses, including Mr Boardman, did not know that Ms Madarassy was pregnant until 7 November 2000, some two months after the objectives were set. The Tribunal made proper findings and its reference to a hypothetical male was appropriate in relation to the September 2000 objectives as it was alleged that they were discriminatory on the ground of her sex as well as her pregnancy.
204. There are however two areas where we consider the Tribunal did not approach the allegations correctly. The first relates to the setting of objectives in February 2001, (allegation 1.15), and the second, the failure to inform the Appellant during her maternity leave of the broad redundancy exercise being carried out, and the new strategy adopted by the Respondent whilst she was on maternity leave. Had she been so informed she would have been able to make suitable arrangements to align her work strategies accordingly as her male colleagues, Mr Adams and Mr Salam had been able to do. (allegation 1.18).
205. The Tribunal find in paragraph 285 that Mr Boardman did set four objectives for Ms Madarassy in her 2001 Performance Review. (B2 607). No completion date was put on them however as it was agreed that the objectives would be discussed after Ms Madarassy's return from maternity leave. It was identified on 16 August 2001 that the objectives had not been agreed, but the matter was overtaken by Ms Madarassy's redundancy. Consideration of her objectives was ongoing until the time she was selected for redundancy. (Paragraphs 285 – 286).
206. It is then necessary to refer back to paragraph 218 where there are further findings in relation to the 2001 objectives. In paragraph 218 the meeting of 16 August 2001 is also referred to, as is the fact that the objectives for 2001 remained unresolved. Accordingly the Tribunal found that Ms Madarassy suffered a detriment 'because her objectives were not finalised' before the end of her employment. We do not however consider that the reference at the end of paragraph 218 to the hypothetical male employee relates to the 2001 objectives but, as stated earlier in this judgment, to the subject matter of that section of the decision namely the 2000 objectives.
207. It is to be noted that when considering the 2001 objectives under allegation 1.15 the Tribunal states in paragraph 287 that it is not satisfied that Ms Madarassy had shown that she has suffered less favourable treatment. No reference is made to a hypothetical male comparator in this section of the decision. It remains the fact however that paragraph 218 is confusing and it cannot therefore be said with certainty that the reference to a hypothetical male comparator in that paragraph does not relate both to the September 2000 objectives and to the February 2001 objectives. If that were to be so, reference to the hypothetical male comparator in relation to the February 2001 objectives would be an error as such a comparison is impossible and wholly inappropriate.
208. It does not appear that the cases of O'Neill or Webb were referred to the Tribunal, or indeed that the case was argued on that basis. The Respondent submits that even if under the principles of O'Neill the dismissal could be said to be partly on the ground of pregnancy, the Appellant cannot succeed because she has to prove detriment and none has been established. The difficulty about that submission is that the Tribunal find at paragraph 218 that Ms Madarassy did suffer a detriment because her objectives were not finalised before the end of her employment. Although Mr Goulding submits that detriment in August 2001 would not relate to the pregnancy, but to the market conditions these were not matters upon which the Tribunal made a decision or it seems was invited to make a decision.
209. We are left with the possibility that the Tribunal may have applied the test of a hypothetical male comparator to a situation where such a comparison was wholly inappropriate as at the material time the Appellant was on maternity leave. In any event the Tribunal did not consider, as it should have done, whether the treatment was partly on the grounds of Ms Madarassy's pregnancy or maternity leave. These issues were before the Tribunal and the fact that particular authorities were not cited does not render them new issues which were not presented before the Tribunal within the meaning of Kumchyk v Derby City Council [1978] ICR 116. Pregnancy and maternity leave were matters which had to be considered on the case as presented, and the relevant law had to be applied to those issues, whether the authorities were specifically raised in argument or not.
210. The Tribunal's decision on allegation 1.18, 'Information about the Redundancy Exercise' is set out between paragraphs 307 and 313. The Tribunal does not refer in its decision in paragraph 313 to a hypothetical male comparator and hence is not in breach of the decision in Webb, and also O'Neill. There are however inconsistencies in the decision of the Tribunal as set out in paragraph 313 and paragraph 124 where the Tribunal deal with Ms Madarassy's return from maternity leave. In paragraph 124 they find that she returned from maternity leave on 9 July 2001 and that:-

"Whilst she had been away Mr J Adams had moved to specialise in healthcare and Mr S Salam had moved to specialise in the telecoms and technology sector".

211. This finding is clearly inconsistent with the finding in paragraph 313 that there was no evidence that Mr Adams or Mr Salam were able to realign their working strategies during Ms Madarassy's maternity leave, Mr Adams being a specialist in healthcare before Ms Madarassy went on maternity leave and Mr Salam a specialist in technology and communications before she went on maternity leave. Mr Goulding on behalf of the Respondent has submitted that paragraph 124 may mean that Mr Adams had moved to specialise 'more' in healthcare and Mr Salam had moved to specialise 'more' in the telecoms and technology sector. This is a possible interpretation but it remains an inconsistency on the face of the findings which cannot be resolved without speculation.
212. In any event, Mr Goulding, submits the meeting of 11 June 2001 for equity new issue group employees only gave them 'a general awareness of what was going on' and at the first stage there were no redundancies made in ECM because the head count had already been reduced by some 30%. (paragraphs 121, 122). The Tribunal find in paragraph 312 that on 11 June 2001 the ECM team were advised that ECM would remain unchanged and that a number of emerging market sales and research staff were made redundant and were informed of their redundancy on 4 July 2001. As Ms Madarassy returned to work on 9 July 2001 Mr Goulding submits that she clearly suffered no detriment: one month before her return there was no change to her team, and five days before her return redundancies were announced, but not in ECM. When she came back she was told what had happened. Furthermore there is no evidence that the two male comparators had been realigning their strategies as they had both been working in their specialities before Ms Madarassy went on maternity leave. Indeed Mr Goulding submits that Ms Madarassy had accepted in cross-examination that Mr Adams and Mr Salam both had their specialisms before and there was not such a great need for rebranding because ECM was already focusing on sector lines. The chairman's notes of evidence confirm that.
213. Mr Goulding further submits that realignment was not pursued in Ms Madarassy's closing submissions, but paragraph 313 of the Tribunal's decision showed that they did consider the question of realignment. The inconsistency between paragraphs 124 and 313 remains, and Mr Clarke submits that a significant change could have taken place in one month, as Mr Adams and Mr Salam could have adapted to the prospect of redundancy during that time even on the basis that they were simply 'more' involved in their respective specialisms. Ms Madarassy however could not. She was deprived of that opportunity. The fact that she was not given the appropriate information about the broad redundancy exercise or the change in strategy was caused by the fact that she was on maternity leave.
214. There has to be both less favourable treatment and detriment and it is submitted by Mr Clarke that both are proved. We understand these contentions but doubt whether the inconsistencies in the findings can be properly resolved so as to enable the EAT to substitute its own decision. We also recognise the force in the Appellant's contention that it is difficult to explain the failure to set objectives by virtue of the fact that the matter was overtaken by Ms Madarassy's redundancy when her comparators were the very people who had the chance to adapt.
215. We are not therefore satisfied that in either of these instances the Tribunal has given adequate consideration to the issues which in fact arose or adequate reasons for its decision. We shall consider the consequences of these errors when standing back and reflecting on the decision of the Employment Tribunal as a whole.

The cross appeal.

216. The Tribunal found that the work Ms Madarassy undertook was of a kind which 'could involve risk in relation to physical working conditions in relation to the comfort of an employee sitting before a computer or radiation from the computer. Ms Madarassy's evidence is not disputed by the Respondent.' (Paragraph 261). Ms Madarassy had told the Tribunal that she was 'in pain most of the time as a result of sitting in front of the computer for long periods of time and as a result of overwork.' (Paragraph 260) The Tribunal concluded on the basis of this finding that a risk assessment as required by the regulations should have been carried out, and as it was not, Ms Madarassy was less favourably treated. 'Whether or not there was a risk to her is not the issue before the Tribunal.' (Paragraph 262).
217. The Respondent submits that there is no evidence upon which the Employment Tribunal could base a finding that the work could involve risk. There was no evidence in relation to either comfort or radiation. Lack of comfort itself is not a risk to health and safety and even if there was pain there is no evidence of risk. Ms Madarassy was not asserting risk, she was simply saying that there should be an assessment. The Tribunal could not assume there was radiation or that it causes a risk of miscarriage. There had to be evidence to establish this and there was none.
218. Mr Clarke on behalf of the Appellant submitted that the test was whether the work 'could' involve risk. An inference could be drawn. Pain from sitting in a chair for a long time when linked to pregnancy was just enough.
219. We are satisfied that there is no obligation to carry out a risk assessment in respect of new or expectant mothers unless the work is of a kind which 'Could involve risk, by reason of her condition, to the health and safety of a new or expectant mother, or to that of her baby, from any processes or working conditions or physical, biological or chemical agents…' (Regulation 16(b)).
220. Even though the assessment required by regulation 3(1) should also include an assessment of such risk, there must in our view be some evidence that the work is of a kind which could involve risk to the health or safety of a new or expectant mother or her baby. There was no evidence before the Tribunal that there was or might be radiation or that radiation from a computer created any risk to the health or safety of either Ms Madarassy or her baby. The only evidence relating to risk to health from sitting in front of a computer was Ms Madarassy's evidence that she experienced pain when sitting in front of a computer for a long period of time and as a result of overwork. There was in our view therefore no evidence as to risk from radiation and we are unclear as to the evidence upon which the Tribunal was basing its finding that there was risk to the comfort of an employee sitting before a computer. Has the Tribunal equated pain with discomfort and discomfort with risk, and if so upon what basis?
221. We do not consider that the Tribunal has given adequate reasons for its finding that the complaint under paragraph 1.12 of failure to carry out a health and safety risk assessment succeeded.

The Respondent's further grounds for resisting the appeal.

222. In view of our decision that the Tribunal's findings on out of time/continuing act/extension of time are correct we have not considered the Respondent's further grounds.

Summary.

223. We conclude therefore that the Appellant has not demonstrated that the Tribunal erred in its fact-finding, reasoning or general approach to Ms Madarassy's claim for sex discrimination. It does not either interpret or apply the burden of proof incorrectly. It asks itself the fundamental question of whether the treatment the Appellant received was on the grounds of her sex, which would be discriminatory, or for some other reason which would be non-discriminatory. It concluded that the treatment was on non-discriminatory grounds, namely the Appellant's competence in her work. That finding was open to it on the evidence. Its findings on out of time, continuing act and just and equitable extension of time, cannot properly be challenged.
224. There are however specific areas of the decision which can properly be criticised. Firstly paragraph 218 is confusing. It appears to conflate the issue of the September 2000 objectives with the February 2001 objectives. It is not possible to resolve the ambiguity with sufficient clarity to be satisfied that the Tribunal did not apply the impermissible hypothetical male comparator test to the February 2001 objectives. The Tribunal should in any event have been asking itself whether the failure to set objectives or finalise objectives was in part on the ground of Ms Madarassy's pregnancy or maternity leave. They did, it would appear, not ask that question, no doubt because it was not posed by the parties.
225. Paragraphs 124 and 313 of the decision are inconsistent. It remains uncertain what findings are being made as to whether Mr Adams and Mr Salam did realign their working strategy while Ms Madarassy was on maternity leave. Again, the question of whether any such realignment was brought about in part by the fact that Appellant was on maternity leave has not been considered.
226. The confusion and inconsistencies in paragraphs 218 and 124 and 313 mean that any finding on detriment needs to be reconsidered.
227. The Tribunal took into account an incorrect appraisal form in the 360° exercise and failed to take into account the correct one. This error did not however vitiate the conclusions on the performance review issue.
228. What then is the consequence of the errors in relation to paragraph 218, 124 and 313? The Appellant submits that the pregnancy matters do impact on all other aspects of the decision. Allegations 1.5 and 1.15 have been confused by the Employment Tribunal. One cannot say what impact the pregnancy issues would have had if the Employment Tribunal had come to the right conclusions on pregnancy and maternity leave. How can one say what would have been found if, looking back at the whole scene, additional findings on an important area are made in the Appellant's favour. Not fixing objectives is a continuing process where all three are in the pool and two have the advantage of adapting. Mr Boardman was involved in the process of fixing objectives. The only proper course is therefore to remit the matter to a fresh Employment Tribunal Mr Clarke submits. The matter cannot now be sent back to the original Tribunal some 18 months later, especially where it was at least thought that Ms Madarassy had alleged bias, even though that was subsequently explained not to be the case. There is a danger that remitting to the original Tribunal would not be seen to be fair.
229. The Respondent however submits that there is no linkage between the pregnancy issues and the decision on discrimination overall. The Employment Tribunal looked at the whole case, as can be seen in paragraph 365, including the risk assessment finding in the Appellant's favour. It would make no difference to the other complaints if findings were to be made in the Appellant's favour on the pregnancy issues because she was on maternity leave at the time. It would not cast them in a different light or alter the picture. One must recall, Mr Goulding submits, that the postponement of the completion date was done for the best motives and failure to give information during maternity leave was a mere oversight.
230. If the pregnancy issues were wrongly decided Mr Goulding submits, there would be no knock on effect on the other findings as pregnancy/maternity leave issues are a distinct subset. The correct solution would be to set aside the pregnancy and maternity leave issues and remit them for rehearing by the Tribunal which made this decision or alternatively ask that same Tribunal to give further reasons or amplification.
231. We reject any suggestion such as that made by Ms Madarassy in her affidavit of 23 May 2003, that the Tribunal dealt with Ms Madarassy's claim unjustly or unfairly, or that she was not given a fair hearing. We are quite satisfied, having considered the matter ourselves in considerable detail and in the round, that this is not so. Ms Madarassy has confirmed that she does not allege bias. Mr Clarke submitted that there might nevertheless be a perception of unfairness were the matter to be referred back to the same Tribunal. Disappointment at lack of success however should not give rise to any proper perception of unfairness if there is no objective basis for regarding the proceedings as unfair.
232. The Tribunal made findings which are adverse to Ms Madarassy's case, but only after they had given long and careful consideration to the evidence and made essential findings upon it. The fact that their detailed judgment contains some errors does not in itself mean that it would be inappropriate for them to reconsider the matter. We have considered the case of Sinclair Roche & Temperley & others v Heard & Fellows [2004] IRLR 763. The President, Mr Justice Burton, there sets out the relevant factors to whether a case should be remitted back to the same Tribunal or to a fresh Tribunal to start again.
233. Having considered the case of Sinclair Roche & Temperley and the parties' submissions on this issue we have reached the conclusion that the Tribunal should be asked to consider this matter further. We are satisfied that it is entirely fair in all the circumstances that it should do so. Consideration of the relevant factors set out in Sinclair Roche & Temperley confirm that this is so. It is proportionate that the matter should be dealt with by the same Tribunal, and the passage of time has not been so great that the Tribunal will be unable to deal with the matter. They last considered it in July 2003 when considering Ms Madarassy's affidavit. We see no reason why they cannot refresh their minds from the notes of evidence and submissions made. This was a detailed and unusual case and many of its particular features will, we have little doubt, have stuck in the memories of the members of the Tribunal. Ms Madarassy has confirmed that there is no allegation of bias and we ourselves are satisfied that there is no suggestion whatever of any bias or partiality on the part of the Tribunal in reaching its decision. Nor is this a decision which can be described as being totally flawed. On the contrary the bulk of the decision is, for the reasons we have given, correct. We do not consider that the Tribunal, which did find for the Appellant on 1.12, would be unwilling or unable to come to a different conclusion on a review or a rehearing of any part of its decision. The Tribunal showed a perfectly proper professional approach to its task and we see no reason why that should not continue in relation to any further hearing or review.
234. What therefore should the Tribunal reconsider? The reasoning in paragraph 218 is unclear. The reasoning expressed in that paragraph has been challenged by the Appellant as inadequate. The Tribunal should be asked to explain its decision in this paragraph and amplify if it is necessary to do so. We are conscious of the fact that what might be described as the O'Neill arguments were not put before the Tribunal. Through no fault of the Tribunal therefore, the matter has not been dealt with by it, largely perhaps because the realignment issue did not feature largely in the Appellant's closing submissions. Nevertheless it is an area of the law which should be considered in this context and we believe the appropriate course is to ask the Tribunal to review its decision under paragraph 1.15 – 'Objectives in 2001', and paragraph 1.18 – 'Information about the Redundancy Exercise'. The Tribunal should also reconsider its reasoning in relation to paragraph 1.5 – 'Objectives on Confirmation of Employment' in so far as this reasoning bears on its decision in relation to allegation 1.15, though it will also be open to the Tribunal to reconsider its decision under paragraph 1.5 if it finds it necessary to do so. This review should take place in the light of the proper approach to pregnancy/maternity leave issues in accordance with the decision in O'Neill as set out in this judgment. The Tribunal should also review its decision in relation to paragraph 1.12 and express the reasons for its finding that there was a risk, and the nature of the risk, as set out above.
235. As the Tribunal did not hear arguments specifically directed on this issue it may, if the parties so request, hear further evidence as well as written submissions upon it. It will be necessary for the decision on the out of time issues in relation to each of these paragraphs to be reviewed as well in the light of any further submissions or evidence.
236. The Employment Tribunal is therefore to be asked to review a limited number of its decisions and where so requested hear further evidence as well as written submissions upon such issues. We do not consider that in the circumstances it is necessary for our decision to be adjourned so that the matter can be referred back by the Employment Tribunal after it has made its further decisions. It will be sufficient for the matter to be remitted to the Employment Tribunal for it to review and reconsider its decisions on the issues defined in this judgment and make its further decisions upon them. In view of the length of this judgment we consider it appropriate to permit the parties to make written submissions to us on the nature of the order proposed and its form. These must be submitted within 21 days. The parties should, if possible, agree an order and submit it to the EAT within that time frame.
237. Accordingly the Appeal is dismissed save in relation to paragraphs 1.15, 1.18 of the Appellant's complaints which are remitted to the Employment Tribunal which heard this matter for review and rehearing. The Tribunal should also reconsider its reasoning, and if necessary its decision in 1.5. The cross appeal is allowed to the extent that paragraph 1.12 of the Appellant's complaints is remitted to the same Employment Tribunal for review.