United Kingdom Employment Appeal Tribunal

APPEARANCES

UKEAT/0564/03/TM

 

For the Appellant	MS NAOMI CUNNINGHAM (of Counsel) Instructed by: Free Representation Unit 4th Floor, Peer House 8-14 Verulam Street London WC1X 8LZ
For the Respondent	MR RICHARD POWELL (of Counsel) Instructed by: Messrs DLA Solicitors Victoria Square House Victoria Square Birmingham B2 4DL

UKEAT/0710/03/TM

For the Appellant	MR EDWARD PEPPERALL (of Counsel) Instructed by: Birmingham City Council Legal Services Department Ingleby House 11-14 Cannon Street Birmingham B2 5EN
For the Respondent	MR CHARLES CROW (of Counsel) Instructed by: Messrs Bradshaws Solicitors 3 Swan Courtyard Coventry Road Yardley Birmingham B26 1BU

APPEARANCES (Contd.)

UKEAT/0711/03/TM

For the Appellant	MISS SALLY COWEN (of Counsel) Instructed by: Messrs Dean Laing Solicitors 96 Church Street Brighton BN1 1UJ
For the Respondent	MR CHRISTOPHER CONEY (of Counsel) Instructed by: London Borough of Southwark Legal Services Department Southwark Council House 30-32 Peckham Road London SE8 8PX

UKEAT/0860/03/TM

For the Appellant	MR DANIEL MATOVU (of Counsel) Instructed by: Messrs Kennedys Solicitors Longbow House 14-20 Chiswell Street London EC1Y 4TW
For the Respondent	MS ADRIENNE MORGAN (of Counsel) Instructed by: Messrs Simpson Millar Solicitors 101 Borough High Street London SE1 1NL


 


SUMMARY

Practice and Procedure

Four cases of delay in promulgation of ET decisions. Three allowed (7.5 months, 12 months, 14.5 months) and one dismissed (4 months). Delay does not necessarily lead to rehearing (that in itself is bound to compound the delay and injustice). Test is whether decision (or part of it) rendered unsafe by delay: inspection of Decision for errors will not pay the usual deference to the decision of the Industrial jury.

Mtize: only (surviving) claim for victimisation remitted: Connex: all three discrimination claims remitted: Kwamin: one of victimisation claims remitted with cross-appeal issue of extension of time: Martin: dismissed.


 


THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)

1. Four cases have, as a result of various orders of the Employment Appeal Tribunal, given either on paper or at a preliminary hearing, been ordered to be heard together. Their connecting factor has simply been that they each included a ground of appeal based upon an allegation of delay in the promulgation of the judgment. It has been very useful to consider four such cases, because in reaching general conclusions we have been able to test them against four individual sets of facts. The concomitant has been that we have needed at the same time to consider such other independent grounds of appeal as are raised; but in any event the question of delay and its effect needs to be considered in the context of whether there either are, or are not, in a particular case independently sustainable grounds of appeal. We shall set out our conclusions and make our recommendations on the question of delay first, before setting out our independent decisions in respect of each case, but, as we have indicated, we have reached our conclusions only after learning from, and testing them against, the particular facts of each appeal.
2. The four appeals are:

(i) Birmingham City Council v Mtize ("Birmingham"). This was the decision of an Employment Tribunal in Birmingham. The hearings took place on 18, 19 and 21 March, 10, 11 and 14 June and 1 October (evidence), and 2 October and 29 November (submissions), 2002. There are recorded "chambers days", being discussions in chambers (that is, in their own room in the absence of the parties) between the Chairman and members, on 21 January and 24 February 2003, a decision was handed down, unaccompanied by any reasons, in a letter dated 14 April 2003, and the Extended Reasons were promulgated on 9 July 2003, some seven and a half months after the last date of the hearing. The claims alleged race discrimination and victimisation pursuant to ss1 and 2 of the Race Relations Act 1976 ("the 1976 Act"): the Tribunal unanimously upheld a complaint of victimisation, while dismissing the balance of the claims. The Respondent, Birmingham, appeals.

(ii) Connex South Eastern Ltd v Bangs ("Connex") was a decision of an Employment Tribunal at London (South). The hearing took place on 6, 7 and 8 March and 10, 11 and 12 July, 2002, and submissions by the parties were delivered and exchanged on 9 and 15 August 2002. Chambers days are recorded on 22 and 23 August 2002 and 8 April and 25 June 2003. The Extended Reasons were promulgated on 18 August 2003, over one year after the delivery of the written submissions. The claim by the Applicant, based upon three alleged acts of unlawful discrimination, was for race discrimination contrary to ss. 1 and 4 of the 1976 Act. He succeeded in respect of all three such acts and the Respondent (Connex) appeals.

(iii) Kwamin v Abbey National plc ("Kwamin") was a decision of an Employment Tribunal at London South. The hearings were on 3, 4, 5, 6 and 7 December 2001 and 14 March 2002. There were recorded chambers days on 25 and 26 June 2002, and the Extended Reasons were promulgated on 3 June 2003, fourteen and a half months after the last day of the hearing. The Applicant's claims for race and sex discrimination, victimisation and unfair constructive dismissal were dismissed. The Applicant (Mrs Kwamin) appeals.

(iv) Martin v London Borough of Southwark ("Martin") was a decision of an Employment Tribunal at London (South). The hearings were on 4 and 5 February and 25 and 26 June 2002, written submissions were delivered on 29 July 2002, there was a chambers discussion on 16 August 2002 and the Extended Reasons were promulgated on 3 December 2002, just over four months after the delivery of the submissions.

General Considerations

3. We split the hearing into two parts, hearing submissions first on the general principles and then dealing separately with the facts of each case. We were greatly assisted by the authorities and the written submissions produced by all eight counsel instructed in the four appeals. With regard to oral submissions, the lead was taken by Miss Naomi Cunningham, Counsel for Ms Kwamin, the Appellant in the third case, so far as the Appellants were concerned, but those instructed by all four Appellants (as can be seen two of them being Applicants and two Respondents, but on this occasion making common cause) and all four Respondents (vice versa) contributed to the debate. There were in the end very few, if any, differences, other than of nuance, between the position for the Appellants and the Respondents on questions of general principle, to whose discussion we now turn: the differences of course were more pronounced when it came to the application of such principles to the individual cases, with which we shall deal later in this judgment.
4. It has of course always been a fundamental principle of the common law concept of natural justice that trials must be fair, and the fairness of a trial must include and be reflected in the absence of any excessive or avoidable delay by the Tribunal. This however is now enshrined in the right to a fair trial in a reasonable time expressly provided for in Article 6 of the European Convention for the Protection of Human Rights, now incorporated into domestic law by the Human Rights Act 1998, which provides:

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

5. Lord Hope in Porter v Magill [2002] 2 AC 357 made it clear (at paragraph 108 of his speech)

"that the right in Article 6 (1) to a determination within a reasonable time is an independent right, and that it is to be distinguished from the Article 6 (1) right to a fair trial".

6. Six cases in the European Court of Human Rights have been produced to us, from which can be deduced the factors which are to be taken into account in arriving at a conclusion as to whether there has been delay in any particular case. These were Konig v Federal Republic of Germany [1978] 2 EHRR 170, Buchholz v Federal Republic of Germany [1980] 3 EHRR 597, Zimmermann and Steiner v Switzerland [1983] 6 EHRR 17, Obermeier v Austria [1990] 13 EHRR 290, Portington v Greece 23 September 1998 summarised at [1998] HRCD Vol. IX No 10 page 856 and Obasa v United Kingdom [2003] All ER (D) 84 (Jan). The factors identified are the complexity of the case, what is at stake, the conduct of the parties and the conduct of the tribunal. As we have indicated above, all four of these appeals revolve around the issue of delay after the end of the hearing, in relation to the preparation and publication of the judgments. If there be delay at that time, none of it can, at any rate by way of primary and substantial responsibility (there is, as we shall discuss, an entitlement which, as time passes, may become an obligation, to chase) falling upon the parties. There is, however, of course room for delay at two earlier stages:

(i) between the occurrence of the events the subject matter of the case and the commencement of the proceedings and then of the hearing. So far as the passage of time prior to the commencement of the proceedings is concerned, that may be resolved by the expiry of a limitation period, although of course most ordinary civil proceedings can have a lengthy gestation period, unlike proceedings dealt with by employment tribunals, where the periods (albeit extendable in certain circumstances) are more rigorously limited. Delay after the commencement of the proceedings and prior to the hearing may be the fault of the tribunal, but is more likely to be ascribable, whether blameworthily or otherwise, to either one or other or both of the parties. By way of active case management and the imposition of sanctions, such delays ought to be capable of being minimised.

(ii) delay after the case begins, if there need to be adjournments and restarts of hearings. It is obviously important and we recommend that:

(a) the parties, and the tribunal, should co-operate in arriving at the best possible estimate of time, and revisit that estimate from time to time: the Tribunal may need itself to look at the estimate again in the light of the papers lodged, shortly prior to the hearing.

(b) if adjournment there must be, the fixing of any such adjourned hearing should be immediate, i.e. if at all possible before the parties (or their representatives) leave the building, and for a date with as little intervening delay as can be achieved, with the tribunal straining to help.

7. However these earlier periods, not directly relevant though they may be to our consideration as to what occurs after the hearing is completed, must nevertheless be borne in mind. They have, if they have occurred, two interlocking significances. First the tribunal dealing with a reserved judgment in such a circumstance must bear in mind that there have been earlier delays in straining to avoid any further delays after the hearing: and secondly the existence of earlier delays or passage of time will undoubtedly impinge upon the consequences of any later delay, as the events the subject matter of the case recede yet further into the past.
8. In considering the period of time post-hearing, with which we are concerned, we do not need in the ordinary case to revisit the factors referred to in the European Court of Human Rights cases. There is little doubt what kind of period is now regarded in a civil case as acceptable for the delivery of a reserved judgment. In normal civil proceedings in the High Court and County Court, it is expected that a judgment must be delivered at the latest within three months from the end of the case: this means, where closing speeches are delivered orally, the end of the hearing itself, but in a case where subsequent written submissions are provided for, either instead, or by way of supplementation, of any oral submissions, then in almost every case the three months will be considered to run from the delivery of those submissions, which of course the judge will need to take into account in making up his or her mind. Of course there will be many reserved judgments which can and will be delivered in a much shorter period than three months, often, if not usually, in a matter of days or certainly weeks. Save where a case is particularly complex or has been particularly lengthy, or the interposition of illness or justifiable absence, in which case such an explanation for delay will be required, but will be inevitably likely to be accepted, in respect of a normal judgment three months should be regarded as the long stop, and anything over three months regarded as delay. None of the Counsel before us sought to suggest that this approach, which has now been hardened into administrative arrangements at the instance of the last Lord Chancellor, is not an acceptable solution.
9. At the Employment Appeal Tribunal we have adopted a similar regime, save that we make, when appropriate, some additional allowance, not only for the difficulties of typing and transcription, but also, and particularly, for the involvement of lay members. Unlike the courts, where the judgment is the responsibility of the judge alone, in the Employment Appeal Tribunal (as of course in the employment tribunals, to which we will turn) the judgment is the responsibility of all three members of the Tribunal, and its drafting, preparation, compilation and finalisation, after input from his or her fellow members, is the responsibility of the judge/chairman; and extra allowance for the difficulties of, and necessity for, communication as between the three members needs to be made, over and above the basic three months. Again there was no dispute during the course of the hearing between Counsel that a three and a half months deadline, beyond which there is thus culpable delay absent proper explanation, would be the equivalent to the kind of period expected in the High Court.
10. The same principle applies to the employment tribunals. Recent initiatives by the President of Employment Tribunals, Judge Meeran, have been directed to lowering such a period, with encouragement to Chairmen to produce decisions in as little as four weeks. The aim of sending a written decision within four weeks of the hearing in 85% of cases is contained in the Charter Statement published by the Employment Tribunals Service. There will be many very simple cases in the Tribunals in which a decision can, and should, be given extempore, and certainly, if not so given, then delivered in writing very shortly afterwards. However to begin to approach this aim there must be the provision of greater assistance to Chairmen by the administration. Part time Chairmen are only allocated to employment tribunals for limited periods, and must then depart to carry out their normal work: full time Chairmen are expected to move speedily from one case to the next. Time must however be allowed for consideration of cases and for judgment writing, and it may be that the right approach, which we recommend, is that the administration at a particular Employment Tribunal, in relation to a case which is estimated to last more than a few days, should automatically (and without reference to the parties) add one or two days to the end of the hearing for that purpose, both to reserve the members and to prevent the Chairmen from having to move straight on to another decision. But even on the basis of the present arrangements, which we know in many regions are dedicated to exactly this purpose, there ought to be no reason why three and a half months should not have been at all material times the maximum time after the end of a case for preparation and promulgation of all but the most complicated and lengthy judgments.
11. What are to be the consequences of delay in such circumstances? Where delay occurs prior to the hearing, or even during the hearing, and is the fault of a party, that party can be made to suffer the consequences of its default, even in an extreme case by the sanction of striking out or debarring claim or defence. But what of a case, such as those considered here, where neither party is responsible for the delay? In a criminal case the court can simply conclude that the criminal charge cannot be pursued, the prosecutor, and thus the public, suffering the sanction as a result of a delay by the court in such event. To that extent, even though a criminal court will be reluctant to take a course which may involve a guilty defendant going free, and even in such a case it may be "anomalous that the right to a hearing should be vindicated by ordering that there be no trial at all" (see per Lord Bingham in Attorney General's Reference No 2 of 2001 [Times Law Reports 12 December 2003], consideration of the consequences of delay in a criminal case must be different: see also Dyer v Watson [2002] 3 WLR 1488 AC. Perhaps there might, exceptionally, be justification for a similar approach in relation to the kind of civil claim which is in essence a quasi-criminal investigation (as in Porter v Magill, though the alleged delay in that case was by the investigator not the Tribunal).
12. However, in a civil case such a simplistic answer as stopping a case going ahead at all because of delay, absent identifiable fault on a particular party, cannot be available where there are two disputing parties who both want or need a result, or at any rate where stopping the case would be an adventitious gain to one side or the other (almost always the defendant). Where, as is suggested to be the case in these appeals, there has been delay after completion of the hearing in the delivery of a judgment, it also cannot be just that there should be an automatic sanction of a rehearing, because, quite apart from the adventitious loss to one or the other party of a result in his or her favour, that will only compound the problem, in leading to yet further delay, and to the risk of the yet further dimming of recollections. In Gardiner Fire Ltd v Jones 20 October 1998 CA, a case in which there had been delay of 22 months between the end of the hearing and delivery of judgment, Lord Woolf MR pointed out that it was part of the responsibility of the court "to try, so far as practicable, to ensure that no greater injustice occurs in consequence of what happened other than that which is inevitable". In Chinyanga v Buffer Bear Ltd 8 May 2003 EAT unreported (EAT/0300/02), after concluding (at paragraph 39), in a passage with which we entirely agree, that "the question is whether the delay made the decision unsafe", Judge McMullen QC went on to state (at paragraph 41) "having made those observations, we would be minded to set aside a decision which was the result of a delay of six and a half months unless there were some compelling reason not to do so". We cannot agree with this latter statement, if taken at face value. First, we do not agree that there is any particular period of delay which creates a presumption. Each case must depend upon its own facts, and the unsafeness of the judgment must be considered against the background of the delay, as we shall discuss. But, for the purposes of this part of our judgment, it is primarily important to state that we do not agree that there is any period of delay as a consequence of which the presumption, or even the result, is one automatically of setting aside. As we have indicated, an automatic setting aside of a judgment, which is not otherwise found to be unsafe, is simply an inapposite sanction on the parties, when the sanction and criticism ought rather to be on the Tribunal, or sometimes the administration lying behind the Tribunal, whose responsibility it would have been, and the concentration of the appeal court must always be on the consequence of the delay, to which we now turn. The aim must be to attempt to avoid injustice to either party (see Poundall v Lincolnshire County Council 9 February 1998 CA per Peter Gibson LJ and Keith Davy (Crantock) v Ibatex Ltd [2001] EWCA Civ 740 at paragraph 31 per Tuckey LJ).
13. The state has its duty under Article 6 in respect of both a fair trial and there being (and concluding by a judgment) a hearing within a reasonable time. But where an unsuccessful party brings an appeal based upon delay in the delivery of the judgment, the question is whether the party who lost has been deprived of a fair trial by virtue of that delay in judgment – i.e. such party must show that the result was unsafe as a consequence of the delay (and similarly the successful party will not be deprived of its success, notwithstanding a delay, unless the decision in its favour was unsafe as a result of the delay). We have already referred in paragraph 12 above, to Chinyanga at paragraph 39, but we refer also to The Governors of Warwick Park School and Others v Hazlehurst and Others EAT/540/99 19 February 2001 unreported per Lindsay P at paragraph 11:

"Whilst the delay in our case was prolonged, unfortunate and unexplained, we see no reason to suppose that the Tribunal had forgotten or overlooked any material evidence either by reason of the delay or at all."

and see also Barker and Others v The Home Office EAT804/01 etc 7 August 2002 unreported per Judge Reid QC:

"19 The second of the points we had to determine … was whether … the … Decision … could be regarded as safe.

30 Even if we had taken the view that the second Decision was within the powers of the Tribunal we would have considered it was unsafe …The delay, even making due allowance for the difficulties of the Tribunal with lay members who were necessarily not full-timers, dealing with a case so time consuming and of such complexity as the present, was unacceptable. Whilst delay of itself is not a sufficient reason for setting a decision aside, in this case the delay coupled with the criticisms made of the content of the second Decision would in our view have made it unsafe if it were an otherwise valid decision."

14. The most recent detailed assessment is that given by the Privy Council in the judgment of their Lordships delivered by Lord Scott of Foscote in Cobham v Frett [2001] 1 WLR 1775 at 1783-4:

"In their Lordships' opinion, if excessive delay, and they agree that twelve months would normally justify that description, is to be relied on in attacking a judgment, a fair case must be shown for believing that the judgment contained errors that are probably, or even possibly, attributable to the delay. The appellate court must be satisfied that the judgment is not safe and that to allow it to stand would be unfair to the complainant…[Counsel for the Appellant] trawled through Georges J's judgment in an endeavour to demonstrate inaccuracies or inconsistencies that, coupled with the excessive delay, might make the judgment unsafe. In their Lordships' opinion the attempt failed. In Goose v Wilson Sandford & Co The Times, 19 February 1998; Court of Appeal (Civil Division) transcript No 196 of 1998, in which Peter Gibson LJ gave the judgment of the Court on 13 February 1998, the Court of Appeal set aside a judgment of Harman J on certain issues and sent the issues back for rehearing before another judge. There had been a delay between trial and judgment of some 20 months during which some of the judge's notes had been lost. Material factual errors in the judgment were demonstrated…In Times Newspapers Ltd v Singh & Choudry (unreported) 17 December 1999; Court of Appeal (Civil Division) transcript No 2156 of 1999 in which Peter Gibson LJ handed down the judgment of the Court of Appeal, the judge had taken seven months to complete an 80 page judgment. The Court did not think it could be criticised for taking so long, but Peter Gibson LJ added: "More pertinently, in the absence of any sign whatsoever that the judge has misremembered any evidence it is, in our judgment, impossible to see how the appeal could succeed on this ground". These cases demonstrate, in their Lordships' view, the correct approach to be adopted by an appellate court to an appeal based on excessive delay in delivering judgment. In the present case, their Lordships conclude, the Court of Appeal was not entitled to substitute its own evaluation of the evidence and the witnesses for that which the judge had made. It followed that the Court of Appeal's reversal of Georges J cannot be upheld unless some error of law on the part of the judge can be demonstrated. The Court of Appeal did not find there to be any such error and nor do their Lordships."

15. The proper approach appears to us, in the light of that guidance, to be as follows:
15.1      The Appellant will need to invite the appellate court to examine the delayed judgment for any sign of error due to faulty recollection. The party impugning a judgment will need to show a material error or omission (if only one, then it would need to be the more significant) or a series of material errors or omissions. Material in this context does not mean material in the sense of an independent ground of appeal i.e. necessarily central to the decision and indicating an error of law or such error or errors of fact as to amount to perversity, but material in the sense that, taken separately or together, it or they show a real risk that there has been a failure of recollection, so as to establish that the decision is unsafe by virtue of the delay.
15.2      Such causation is essential. The appeal must not be allowed, just because of the judgment being a delayed one, to degenerate into an impermissible appeal based upon an alleged error or errors of fact, as a result of what Lord Scott called "trawling" through the judgment. It plainly should not open the door, of itself, to allowing a second bite at the cherry, or certainly to a remission to the employment tribunal for the purpose of allowing a better job to be done by the losing party, second time around. We are satisfied, notwithstanding Lord Scott's use of the words "probably or even possibly", that, given the consequence for the parties of setting aside the judgment, the appeal tribunal must be satisfied on the balance of probabilities that the unsafeness is due to the delay. If the unsafeness of the Decision due to the delay is established, then that is an independent ground of appeal, and the delay will have infected and rendered unsafe one or more of the bases in law for the tribunal's decision. The error or errors must be due to the delay, and cast doubt upon the decision or part of the decision.
15.3      We emphasise 'or part of the decision' because we entirely agree with the approach of Judge McMullen QC in Chinyanga at paragraph 42, when he said:

"We have decided not to set aside the whole of the decision and send it to a different Tribunal because we have dealt clinically with the submission made to us that what is required to be shown is delay plus some additional error. We do not consider that justice will be done by setting aside the whole of this decision, in the light of the consideration which we have given to it."

The delay may not impact so heavily, or not at all, on all parts of the decision. Some questions may depend upon an analysis or construction of documents or on undisputed questions of fact. Analysis of the causation must be careful, given the inevitably substantial consequences of an order for a rehearing of matters possibly many years before and of depriving the successful party of a decision in his or her favour, while condemning both parties to additional possibly extraordinary additional expenditure of time and cost. There can be no question here of 'one out, all out', but there must be what Judge McMullen QC called a clinical consideration of the effect, if any, of the delay.

15.4      There is and must be what Ms Cunningham on behalf of the Appellant in the Kwamin case called a 'sliding scale' of consideration of the danger of injustice dependent upon delay. The longer the delay, the more scrutiny required. Lord Woolf MR stated in Gardiner Fire that "it has been our approach to scrutinise the material which has been placed before us in the light of the delay to which I have made reference".
15.5      This brings us to the next and significant factor in an appeal based upon a delayed judgment. The Employment Appeal Tribunal is required by the Court of Appeal, and has always been prepared, to pay great respect to the conclusions of the employment tribunal, as industrial jury, as the finders of fact, and because there is only an appeal to the Employment Appeal Tribunal on a point of law. In that context the Appeal Tribunal (i) will not be too demanding of detail in the expression of the Tribunal's reasons (subject always to there being sufficiency of reasons in accordance with Meek v City of Birmingham [1987] IRLR 250) (ii) will resist the kind of analysis of Extended Reasons which treats them as if they were a statute, but will encourage and adopt a sensible and common sense understanding of them, (iii) will ensure that respect is given to the fact that the Employment Tribunal has seen and formed impressions of the witnesses, and (iv) is required to be very slow indeed to interfere with the decision of an Employment Tribunal on ground of perversity (see most recently Yeboah v Crofton [2002] IRLR 643). Such deference and reluctance and giving of leeway must inevitably be the less when it is suggested that there have been errors by the Tribunal by virtue of the delay, or that conclusions of the Tribunal are not, or may not, be based upon any abiding recollection of the witnesses or their impression upon it. In Goose (referred to in Cobham in the passage cited in paragraph 14 above) at paragraph 113 Peter Gibson LJ stated:

"Because of the delay in giving judgment, it has been incumbent upon us to look with especial care at any finding of fact which is now challenged. In ordinary circumstances where there is a conflict of evidence a judge who has seen and heard the witnesses has an advantage, denied to an appellate court, which is likely to prove decisive on an appeal, unless it can be shown that he failed to use, or misused this advantage. We do not lose sight of the fact that the judge had transcripts of the evidence, as well as very extensive written submissions from Counsel. But the very fact of the huge delay in itself weakened the judge's advantage, and this consideration had to be taken into account when we reviewed the material which was before the judge. In a case as complex as this, it is not uncommon for a judge to form an initial impression of the likely result at the end of the evidence, but when he has come to study the evidence (both oral and written) and the submissions he has received, with greater care, he will then go back to consider the effect the witnesses made on him when they gave evidence about the matters that are now troubling him. At a distance of 20 months, Harman J denied himself the opportunity of making this further check in any meaningful way."

Similarly in Poundall he said:

"These matters leave me profoundly uneasy as to whether the Recorder did take proper advantage of the fact that he had seen and heard the witnesses."

See too per HH Judge Reid QC in Barker at paragraph 31:

"The danger in any case of this sort is that the Tribunal will have forgotten the impression created by witnesses."

However there falls to set against this the authoritative statement in Cobham at 1783, when Lord Scott, giving the judgment of their Lordships, including Lord Slynn of Hadley and Lord Hope of Craighead, stated:

"As to demeanour two things can be said. First, in their Lordships' collective experience, a judge rereading his notes of evidence, after the elapse of a considerable period of time can expect, if the notes are of the requisite quality, his impression of the witnesses to be revived by the rereading. Second, every experienced judge…is likely to make notes as a trial progresses, recording the impression being made upon him by the witnesses. Notes of this character would not, without the judge's permission or special request being made to him, form part of the record on an appeal…It is, in their Lordships' opinion, impermissible to conclude from the fact of a twelve-months' delay that the judge had a difficult task, let alone an 'impossible' one as Singh JA suggested, in remembering the demeanour of witnesses."

15.6      Something may depend upon the history of events after the hearing, insofar as it may be clear. The Employment Appeal Tribunal will not want or be able to have a mini trial of what has occurred, involving any question of cross-examination of the Chairman or members or indeed of the administration of the Tribunal. However it may, in a particular case, be clear that there was a chambers discussion soon afterwards, and that the decision was then finally arrived at and recorded in all but final form, subject to tidying up or to typing, and that delay thereafter was due to incompetence or oversight. In such a case, although a great deal of anxiety and irritation will have been caused to the parties, the decision, and the recollection upon which the decision was based, will have been crystallised, and the delay thereafter will be of no materiality. Such a possibility only emphasises the need, to which we have referred above, in the unhappy and, we hope in the future, unlikely event of these kind of delays continuing to occur, notwithstanding a system of follow-up of outstanding judgments by the Tribunal administration, to which we shall refer, for the parties, or their legal representatives, to chase the Employment Tribunal in respect of delayed judgments - and, sadly it seems in the light of the experience of the solicitors in the Kwamin case, not necessarily to take what they are told at face value, but to press further.
16. We have set out these general considerations both as a preface to explain our approach in relation to the individual cases before us, and also by way of guidance for the future. We hope however, as we have said, that there will in the future be no need for appeals based upon allegations of delay in the delivery of judgment. Just as, in the High Court and County Court, the three-month period is now enforced by reminders, and if necessary sanctions, and, in the Employment Appeal Tribunal, judges are given reminders, before the danger period approaches, it is to be expected and we recommend that, as we understand already is the case in many regions, a system will be introduced in every Regional Office by which Chairmen are notified of, and reminded about, the passage of time in relation to uncompleted reserved judgments on a regular basis, and explanations sought and assistance given, as necessary, by giving the relevant Chairmen extra judgment-writing time, by rearranging his or her sittings, and facilitating communication with the lay members. It is already apparent from what we have said, and before we deal with the facts of the individual cases, that in relation to these four, we are not of the view that there was any material delay in relation to the case of Martin, while the delay in the other three cases was inordinate, and, as will be seen, not adequately explained or justified. We wish to make it clear however that we have no reason to believe that similar delays are occurring on any kind of regular basis in the Employment Tribunals: our recommendation as to systems to be implemented or introduced are intended to avoid similar occurrences. We now turn to consider the individual cases.

Birmingham

17. The claim of the Applicant, who is of black African origin, arose out of his failure to be selected as a team manager in the Social Services Department of the Respondent Council for which he applied and was short listed in January 2001. Three posts were advertised, two permanent and one temporary, and, as a result of the interview process, two were appointed, a Mr Workman, who is white British, and Mr Hall who is of black West Indian origin. These were the two whom all the interviewers (a Mrs Hawkins and Mrs McAteer, both white women, and a Mr Obazuaye, a black African, as Chairman of the Panel) placed as first and second. They placed the Applicant variously fourth equal or fifth. A white candidate came third. As we have indicated, in the event the interviewers chose only the top two, and the third post was not at that stage filled.
18. The events in issue occurred between November 2000 and February 2001, and the hearing commenced in March 2002, and was, as we have described in paragraph 2(i) above, completed in October/November 2002. The Extended Reasons were not produced until 9 July 2003, although an unreasoned decision was sent on 14 April 2003.
19. Provision was made in the order dated 12 September 2003 of the Employment Appeal Tribunal, made on paper on our sift by Judge McMullen QC, whereby the Chairman of the Tribunal, Mr Price-Rowlands, was invited to give an explanation for the delay. A letter in response was sent on behalf of the Regional Secretary dated 23 September 2003, which read as follows:

"I refer to your letter dated 16 September 2003 and with regard to the explanation requested the Chairman … has replied as follows:

(1) A draft decision was dictated after the reserved decision on 24 February 2003. All notes and bundles were then available – notes were taken. The decision was unanimous.

(2) In order to complete the decision, I requested two days at the tribunal office (I am a practising barrister and live 100 hundred miles away). Due to logistical difficulties this did not occur until 14 and 15 April.

(3) Unfortunately, the tribunal office [was] unable to locate the bundles of evidence which meant that I was not able to complete the decision on 14 and 15 April as planned.

(4) After further unsuccessful attempts – the bundle was obtained from the parties in May. The decision was completed the following month and sent to the members for approval in June.

(5) The members approved the draft (subject to minor alterations) and the decision promulgated at the beginning of July.

(6) If the bundles had not been mislaid, the decision (in a long complex case) would have been promulgated some six weeks earlier."

20. It was not suggested by the Respondent that this gives any adequate explanation for the delay in relation to a hearing which had been completed in October 2002, bar some further concluding oral submissions by Counsel for the Applicant at the end of November. Neither Counsel submitted, nor do we ourselves conclude, that this was a particularly long or complex case, and that does not in any event appear to be the reason for the delay, as explained in that letter. It seems to us that the Chairman was simply not given, nor, as a part-time Chairman, did he have, enough time either to discuss the matter with the lay Members or to concentrate upon and write the decision within a reasonable time after the hearing, and when matters were fresh in his and their minds. The disappearance of the bundles some time between February and April does not explain the earlier delay, nor is it explained how or why it was decided in April to hand down a decision without reasons. The danger of course of handing down a decision without reasons is that it must then appear, and possibly actually be, impossible to change that decision if, on further consideration of the papers and evidence, and formulation of the reasons, the original unreasoned decision cannot be supported. It is not a course which we recommend, save in a simple case, when it is clear at the end of a hearing that there is no time to deliver an extempore reasoned judgment, but the tribunal is wholly agreed, and it is thought appropriate to let the parties know the result immediately without reasons.
21. The Applicant had made an earlier race discrimination claim in 1998 against the Respondent Council, which had been settled prior to an Employment Tribunal hearing in January 1999. This formed the basis of his victimisation claim in relation to his non-selection by the Panel in January 2001. It is quite clear however that his case was put before the Employment Tribunal primarily on the basis of direct alternatively indirect race discrimination. This is apparent from the written submissions below which we have seen. A very brief and robust reference to the victimisation claim appears in the closing submissions of the Respondent's Counsel, Edward Pepperall, who appeared before us, as he appeared below. In the written submissions of Charles Crow, the Applicant's Counsel here and below, there is a mention of victimisation, but no addressing at all of the relevant issue, to which we will refer, of knowledge of the protected act, simply a substantial exposition of the case on less favourable treatment "based on race or victimisation" (paragraph 2.6 of his skeleton), and then a considerable exposition of the case on indirect discrimination. The Applicant failed, in the event, on both direct and indirect race discrimination, but only succeeded on victimisation. We shall return to the relevance of this later. There is no cross-appeal.
22. To be established, victimisation in general terms requires (i) a protected act – in this case the earlier race discrimination claim (ii) unfavourable treatment by reason of the protected act, and for that purpose knowledge of the protected act by the person or persons carrying out the unfavourable treatment. Unconscious victimisation is sufficient (see Nagarajan v London Regional Transport [1999] ICR 877, and this is what the Employment Tribunal found; but plainly there cannot be unconscious victimisation by reason of the protected act without knowledge of the protected act, and that is indeed what the Tribunal found in paragraph 49 of its Decision:

"unanimously on the balance of probabilities the inference to be drawn from those factual conclusions mentioned above, was that the Respondent, through [its] officers had subconsciously victimised the Applicant as a result of their knowledge that he had previously lodged a race discrimination claim albeit that they did not consciously victimised him and had tried to be fair."

23. The central issue for the purpose of victimisation therefore has to have been such knowledge. Mrs Hawkins, one of the Panel, knew of the 1999 settlement. She made arrangements for the appointment of the two other members of the Panel with that in mind, as the Tribunal accepted at paragraphs 13 and 38 of its Decision:

"13 …The chair of the interview panel was Mr Charles Obazuaye, Head of Human Resources, and the other member was Ms Hazel McAteer, incoming Services Manager for Elderly Resources, who had formerly been at Lambeth Council at the time of the Applicant's race discrimination claim and was specifically brought in by Ms Hawkins for this reason. The fact that Mr Obazuaye was himself a black African was also a relevant factor given the background.

38 Whilst Ms Hawkins had gone to the trouble of ensuring that a newcomer to Birmingham Council (Ms McAteer) and a black Chairman (Mr Obazuaye) were appointed, she did not take steps to distance herself from the selection process for the reasons mentioned."

24. Ms Hawkins' evidence was that she did not pass on her knowledge to the other two members, who had in those circumstances been appointed, as the Tribunal recorded in paragraph 35:

"35 Ms Hawkins claimed that she had not been given any details about the claim and that she had not discussed this aspect with other members of the interview panel."

25. At no stage was it put to Ms Hawkins, as Mr Crow concedes, in cross-examination that, contrary to her oral evidence, she had passed on this knowledge to, or discussed it with, the other two members, nor was such put to them. As it had not been suggested, neither Counsel dealt with the suggestion in their written submissions. But the Employment Tribunal concluded as follows in paragraph 48 (g) of its Decision:

"The tribunal found as a fact, on the balance of probability, that the other panel members were made aware of the Applicant's previous complaint prior to the final selection procedures including the interview."

26. It appears to us that this of itself is a fundamental error, but that it is in any event, given the question of delay, substantially indicative of the probability that the passage of time had caused the Employment Tribunal to forget that such had never been suggested; and that the answer is, or may be, that, after rejecting the Applicant's primary case for race discrimination, and considering the fall-back position which had not been in the forefront of argument, it did not have or retain properly or at all in mind the evidence, or the submissions, upon which it could form a proper picture.
27. In this regard there are other errors which can be collated with this serious error:

(i) On three occasions in the Decision, the Tribunal refers to the fact that one of the three members, Ms McAteer, had lost her notes, which were thus no longer available (paragraphs 29, 31 and 41). The notes had indeed originally been mislaid, and a case had originally been alleged by the Applicant that this of itself amounted to unfavourable treatment, but by the time of the hearing they had been found, and indeed they featured considerably in the evidence and were included in the agreed bundles (which were of course, according to the letter of 23 September 2003, unavailable to the Chairman during a period between February and May 2003) and are before us. The significance is not only that this is indicative of a lack of recollection of the case, presumably prompted only by seeing that at an early stage they had been missing, coupled with forgetfulness that they were no longer missing by the hearing, but that, in relation to two at least of the issues which the Tribunal resolved against the Respondent (the 'prompts' of the Applicant (sub paragraph (ii) below) and the positioning of the Applicant in the marks (sub paragraph (iv) below)), Ms McAteer's notes were, or would and should have been had they not wrongly been thought to be missing, material.

(ii) The Prompts. The Tribunal concluded that there had been "prompting of Mr Workman and Mr Hall" (paragraph 48(h) of the Decision), by way of unfavourable treatment: and thus implicitly that there was not such prompting of the Applicant. This was incorrect, for the notes of all three panellists, including Ms McAteer, show prompting of the Applicant. Mr Crow seeks to respond to this by asserting that (as he had himself submitted to the Tribunal) the criticism was rather as to the nature of the prompts received by the various candidates. But that was not what the Tribunal stated in its Decision.

(iii) The Tribunal further recorded in its Decision at paragraph 48 (j) that "the failure to correctly calculate the Applicant's marks was another example of subconscious victimisation". This was a reference to the fact that Mr Obazuaye had accidentally miscalculated the Applicant's marks. This somewhat surprising conclusion by the Tribunal was, as Mr Crow confirms in his Respondent's answer, an allegation which was not pursued by him in his closing submissions, as the Tribunal cannot have recalled.

(iv) The Tribunal also concluded in paragraph 48 (i) that the "Respondent's decision that they would not go ahead with the appointment of the third post advertised was also subconscious victimisation". This would appear to be a conclusion consequent upon their erroneous conclusion about Mr Obazuaye's maths. If it was not an act of unfavourable treatment to miscalculate the marks, but an accident, then on any basis the marks as recorded by Mr Obazuaye, the error in which was not discovered until later, were the marks before the Panel, and on those marks the Applicant was fourth equal or fifth, not third. It does not seem possible to understand how, in those circumstances, a decision not to take the third candidate, who was white and was not the Applicant, was unfavourable treatment or victimisatory of the Applicant. In any event, even had Mr Obazuaye's marks been retrospectively corrected, taking into account Ms McAteer's marks together with Ms Hawkins', the Applicant would still not have been third. It is possible, Mr Crow submits, that the Tribunal may have drawn some conclusion from its unreasoned statement in paragraph 48 (h) about undermarking of the Applicant's scores, and carried it forward to its conclusion in paragraph 48 (j). But any reasoning of the Tribunal is wholly lacking in clarity, and this would appear to be due to a lack of recollection of the marks of each candidate.

28. These were plainly very significant errors or defects. Mr Crow made the following submissions as to the main error, namely that with regard to knowledge of the protected act, in his Respondent's Answer:

(i) "The Tribunal rejected the evidence of Ms Hawkins on the balance of probabilities insofar as she claimed that she had in no way communicated to the other panel members the fact of the Respondent's previous RRA claim. The Tribunal was entitled to find Ms Hawkins' assertion in this regard to be non-credible, perhaps particularly in the light of her assertion that she went to special lengths to secure the participation of Ms McAteer and Mr Obazuaye because of the Respondent's prior complaint (see paragraph 13, 38 and 48 (g)) - i.e. if this was the motivation of their involvement then it is perfectly plausible that this was explained to them." Mr Crow did not expand upon this suggestion orally. On its face it seems unsupportable, and rather to support the case that Ms Hawkins, having so carefully taken the trouble to ensure independence, should for that very reason not be assumed to have then taken steps to destroy it.

(ii) He further states "that the contrary was not put to the witnesses does not preclude such a finding, given that the Respondent could have no knowledge of the discussions that took place between the panel members in this regard". This too Mr Crow did not develop orally. It is of course the very reverse of the duty of an advocate and/or of the court to ensure that if a judge or tribunal is to disbelieve witnesses, indeed find that they had not told the truth on a central issue, they must be given notice of that fact and given the opportunity to meet the challenge.

(iii) The third suggestion was that "in any event, the other two panel members were 'tainted' as a result of Ms Hawkins' prejudice". Whatever that precisely means, and we did not fully understand it, it was not in any event the basis upon which the Tribunal reached its conclusion, as is clear from the sentence from 48 (g) of the Decision which we have quoted in paragraph 25 above, and also from the Tribunal's conclusion in paragraph 49 of the Decision, which we have set out in paragraph 22 above ("as a result of their knowledge").

29. The position as to the centrality of this flawed finding of the Tribunal is put beyond doubt by the further submission in Mr Crow's Respondent's Answer, by reference to his case that "subconscious prejudice" can be inferred in respect of each of the panel members, that:

"Based upon [the Tribunal's] finding that each of the panel members [was] aware of the protected act, this is an inference that [it was] entitled to draw in relation to each panel member."

30. In his submissions Mr Pepperall also canvassed other errors which he asserted, with some force, that the Tribunal had made, including the implied assertion in paragraph 48 (m) that Ms Hawkins and/or the panel were responsible for the abandonment of a previous selection policy, thereby subconsciously victimising the Applicant, when in fact the change in policy had been carried out by a working group on which none of them played any part, entirely independently of the selection process under consideration. He further attacked the basis upon which the Tribunal could rely on alleged favouritism towards Mr Workman (paragraphs 16, 19, 26-8, 34 and 48 (l)) both without consideration of (or forgetting) the fact that the other panellists also placed Workman first, and without consideration of the fact that such would if anything be a reason against, rather than for, the alleged unfavourable treatment having been by reason of the protected act.
31. We are entirely convinced that, as Mr Pepperall submitted, the decision is "riddled with errors", and that on the balance of probabilities such errors were caused by the delay and by the Tribunal's lack of recollection of the evidence and the submissions. We do not in those circumstances need to consider the question as to whether the Tribunal's central error in relation to knowledge of the protected act would of itself be sufficient as an independent ground of appeal irrespective of the delay which, in our judgment, caused it. The question remains as to whether we can or should substitute our own conclusion that there was no victimisation, particularly given our obvious reluctance to remit the matter to be reheard, now more than three years after the events. The test of whether an Appeal Tribunal must remit is of course a stringent one, and we can only substitute our own conclusion if of the view that no reasonable tribunal could come to any other conclusion if the matter were remitted to it. There are some findings of the Employment Tribunal as to unfavourable treatment which have not been so successfully savaged by Mr Pepperall on this appeal as those with which we have specifically dealt, so that it cannot, in our judgment, be said that no Tribunal could find that there was unfavourable treatment. But of course unfavourable treatment of itself is not enough, given the dismissal of the direct and indirect race discrimination claims, unless there is an arguable case of victimisation, which in this case requires an arguable case that the unfavourable treatment was by reason that the Applicant had brought the earlier race discrimination claim. If the position solely were that we were being invited to send the case back to the Employment Tribunal so that the case could be called on again with evidence given by the three panellists, but with Mr Crow on this occasion putting to them on cross-examination what in our judgment should have been put to them before if the finding (for which he does not appear himself to have been contending in any event) of discussion between them were to be made, we would not think it right to do so by giving the Applicant another bite of the cherry. However two matters have persuaded us that, reluctantly, we should agree to a remission of the victimisation claim.

(i) Mr Crow asserts, although, as we have said, we do not fully understand the nature of his case, that it would be sufficient to establish his case if Ms Hawkins alone had the relevant knowledge. This of itself is thin, and was not the way he himself summarised his case in his skeleton, as set out in paragraph 29 above.

(ii) However, more significantly, in the course of the hearing a factor arose which does not appear to have been considered by the Tribunal. In his witness statement Mr Obazuaye himself says (at paragraph 26) "I became aware of the Applicant's previous ET claim after I joined the Respondent, but the claim pre-dates my employment. I was never involved in the claim and deny that I treated the Applicant any differently [from] the other candidates because of his bringing a previous complaint of discrimination". This is of course not the basis upon which the Tribunal reached its conclusion, which was positively that Ms Hawkins divulged this information to her fellow panellists and discussed it with them. However, as this matter was in the evidence before the Tribunal, and would therefore be in the evidence before a Tribunal to whom this case would be remitted, it cannot be said as a matter of certainty that a victimisation claim would be bound to fail.

32. In those circumstances, although without any confidence at all that such a claim once remitted will have any real prospect of success, we remit it to a differently constituted Tribunal for rehearing.

Connex

33. The claim of the Applicant, a black African born in Sierra Leone, who moved to England in 1992, was for race discrimination by Connex in relation to the events of May 1999 to January 2000. The Applicant, Mr Bangs, was a Revenue Inspector, one of whose tasks was to collect money from passengers on the platform who had not paid any or sufficient fare before boarding the trains. By way of what was called a "chargeback" system, where the vouchers filled out on the platform were incorrect and/or were not met, they were subsequently recharged or reaccredited to Connex by an organisation known as Sema, which monitored Connex's financial activities. The Applicant was based at London Bridge. In May 1999 it appears that the Respondent was concerned that incorrect card numbers were apparently being entered at an alarming rate at London Bridge, leading to an excessive number of chargebacks. In June or July 1999, Mr Roberts, the Applicant's acting manager, spoke to the Applicant and a number of others on this subject: the Applicant identified about twenty of them as his, and two other inspectors identified about ten each. In September 1999 Mr Byrne, the Accounts Centre Manager, was instructed by the Commercial Manager, Mr Adeshiyan, to conduct an investigation into the chargebacks: the British Transport Police made a report including the statement that "the information tends to corroborate that criminal deception is involved and I would be grateful if you would provide us with details of the 'suspect'". 62 further chargeback transactions were now considered, including some in July and the beginning of August (the latest ascribed to the Applicant being 9 July 1999) and Mr Byrne, wrongly believing that all 62 were to be ascribed to the Applicant (though this was subsequently corrected, on further investigation by a Mr Rose, such that only 40 were ascribed to him (and the Applicant accepted 47)), carried out an investigatory interview with the Applicant under the Respondent's disciplinary procedures on 17 September 1999. The Applicant's claim for race discrimination was in respect of (i) the disciplinary process, including that disciplinary interview, (ii) his dismissal, including the subsequent hearing before Mr Waite, the Revenue Protection Manager, on 28 September 1999, when he was dismissed, and (iii) the appeal to Mr Price, the Respondent's Employee Relations Manager, on 28 January 2000, when the Applicant was reinstated with immediate effect, but into a station assistant position at Cannon Street, with a restriction that he should not thereafter be permitted to handle cash. The Applicant is, as we have indicated, black African, Mr Byrne and Mr Waite are white, Mr Price is black West Indian and Mr Adeshiyan is black African.
34. The Applicant issued an Originating Application in December 1999, at a time when his dismissal had not yet been revoked, which included a claim for unfair dismissal. For some reason this continued to be the case (notwithstanding that revocation) until December 2000, when he issued a fresh race discrimination claim relating to his demotion in January 2000, and sought to withdraw his unfair dismissal claim. The hearing was adjourned and the two applications consolidated: and a preliminary hearing was held on 21 May 2001 when, by a decision handed down on 27 June 2001, the Tribunal permitted the second application to be pursued out of time. We have set out, in paragraph 2 (ii) above, the dates of the hearings, namely for three days in March, during which the Applicant gave evidence and was cross-examined, and then three days in July to complete the Respondent's evidence, with submissions delivered in writing (each side presenting two sets of submissions, the second in response) in August 2002. The decision, as we have described, was not handed down until 18 August 2003.
35. Once again, at the direction of HH Judge Richardson on 6 October 2003 on our sift, the Chairman was asked for his comments on the reasons for the delay. The Chairman, Mr Houghton, responded himself, by letter dated 1 December 2003, which reads in material part as follows:

"The long delay which is regretted and for which I apologise, was for a number of reasons. When the Tribunal first met in chambers in August 2002 and read the written submissions on behalf of the parties it appeared that the resolution of the issues required a lengthier analysis of the evidence placed before us than had been anticipated. We did not complete our discussions. In preparation for the next day of discussions I compiled a draft of our findings of fact, so far as they went at that stage. It was agreed that I would send the draft to the members for their comments. I sent that draft to the members for their comments.

The last 12 months at London South have been extremely busy for chairmen. It was difficult to fix days for further discussion of the draft because of my judicial sittings and other tribunal commitments. An attempt was made to complete our discussions at the beginning or the end of days when the members were sitting on other cases. T hat proved unsatisfactory and a further day in chambers was fixed for April 2003. That, too, proved insufficient and the Tribunal met again in June 2003. The Tribunal met for short periods at the beginning or end of other sitting days. Those additional discussions are not recorded on the face [of] the decision.

My original estimate of the time which would be necessary to discuss the issues in this case was plainly over-optimistic. The Tribunal was conscious that the conflicts in the evidence were very stark and should be resolved only after the most careful consideration of the evidence and written submissions. The process has taken too long, but this was a case which was never far from the minds of each of the members of the Tribunal throughout the period involved."

36. To his credit, it is apparent that the Chairman accepts that he is unable to offer any real excuse. And we can only hope that in future, as we have discussed above, more time is allocated by the administration for judgment writing, and that there is put in place in London South, if it has not already now occurred, a system for regular reminders of delayed judgments.
37. As the Chairman said, there were stark conflicts in the evidence, and that of course is just the kind of case in which, on the one hand, ordinarily the Employment Tribunal's view is paramount but, on the other hand, it is the more essential to resolve that conflict while the evidence is still fresh in the mind, and the Tribunal do not need to have to read themselves back into the case, as must inevitably here have been necessary.
38. It is to the two stark conflicts of evidence in particular in the case which Mr Matovu, Counsel for the Respondent, immediately drew us, as the centrepiece of his submissions that the decision here is unsafe by virtue of the passage of time. The case for the Applicant was that there were two express remarks, one made by Mr Byrne at the disciplinary interview (the "Nigeria" statement) and one by Mr Waite at the dismissal interview (the "brothers" statement). Both these statements were found by the Tribunal, on the basis of a conflict of evidence, to have been made; and they were both found, understandably, by the Tribunal to have express racial connotations (although this is criticised, as being without evidential foundation, by Mr Matovu). They were, it is quite plain, central to the decision-making process, as they were the only such remarks said to have been made, and it is clear that the Tribunal relied upon them heavily in reaching conclusions that both Mr Byrne and Mr Waite treated the Applicant unfavourably on racial grounds. It appears clear to us that, notwithstanding that there was no such direct evidence in relation to the subsequent appeal to Mr Price, the Tribunal was inevitably influenced by the findings it had made in relation to Mr Byrne and Mr Waite, when drawing an inference (at paragraph 68) to the same effect in respect of Mr Price, in that he had "adopted Mr Byrne's and Mr Waite's assumptions of the Applicant's dishonesty".
39. The Tribunal's finding in respect of the Nigeria statement was set out in paragraph 24 of its Decision as follows:

"We accept the Applicant's evidence that he was asked at the beginning of the interview whether he was Nigerian, which he refused to answer. Mr Byrne denies asking that question. But we regard the Applicant's evidence as more reliable than either that of Mr Byrne or Mr Rose, whose evidence contained numerous inconsistencies. Their oral evidence also departed on occasion in material respect from the contents of their witness statements. On the other hand, we regard the Applicant's evidence as consistent, trustworthy and reliable. In this instance (in contrast to the later comments made by Mr Waite during the disciplinary hearing concerning the Applicant's "brothers") the Respondent offered no explanation as to why Mr Byrne might have asked such a question."

40. The conclusion of the Tribunal in relation to the brothers statement is contained in paragraph 36 of its Decision:

"We also accept that at some stage during that meeting Mr Waite, who we find had already convinced himself that the Applicant was guilty of some form of fraudulent and dishonest practice, accused the Applicant of involving his "brothers" to help him defraud the company. Mr Waite "cannot recall" making such a remark, but states that if he did make it, it can only have been a reference to the Applicant's trade union "brothers". Mr Waite made no outright denial that he had made that comment. On balance we find that the Applicant's evidence is preferable and find that Mr Waite made the accusation as the Applicant described. Quite apart from the fact that the Applicant was not a member of any trade union [though we interpose that he was represented at that interview by a trade union official, Mr Appiah, who did not give evidence] we regard Mr Waite's explanation for it to be entirely implausible. Mr Waite made no attempt to explain and we do not understand why he would have meant to suggest that the Applicant was involved in some fraudulent conspiracy with other members of a trade union. In our unanimous view the reference to the Applicant's "brothers" was intended by Mr Waite to refer to Black Africans."

41. The significance which the Tribunal placed upon its findings in that regard is apparent from paragraph 64 and 65 of its Decision:

"64 This is a case in which…if it were necessary to draw an interference of less favourable treatment on racial grounds from unreasonable conduct we would unanimously be prepared to do so. But in our view the evidence in this case of less favourable treatment than others on racial grounds is much clearer. We take the view that on credible and the clearest direct evidence of unlawful discrimination, the Applicant has discharged the burden on him of showing that he was on racial grounds treated less favourably in each of the respects complained of.

65 Both Mr Byrne and Mr Waite made, we find, remarks during the course of the disciplinary process of a racial nature displaying racial stereotypical assumptions about the Applicant's likelihood, as a Black African, to have committed dishonest acts involving the company's money. In our unanimous view the evidence is overwhelming that once this racially-based seed was sown in their minds, the course to the Applicant's dismissal was irreversibly set."

42. In relation to these crucial findings in such paragraphs, Mr Matovu launches an attack which, but for the delay, could otherwise only be mounted on perversity grounds. He submits that, given in particular the passage of time after the Applicant was cross-examined in March 2002, but in any event by virtue of the passage of time after the end of the hearing and before the Decision, it is quite apparent that the Tribunal had forgotten vital matters which needed to be mentioned, and were either omitted or erroneously dealt with:
42.1      Central to the Tribunal's choice between the two witnesses is its statement in paragraph 24 that whereas the evidence of Mr Byrne and Mr Rose was said to have been in certain respects inconsistent (Mr Matovu addressed us on what he submitted to be the relative insignificance of such alleged inconsistencies, but we need not consider those submissions in detail), the Applicant's evidence had been "consistent, trustworthy and reliable".
42.2      He submits that the Tribunal could not come to that conclusion, but certainly could not do so without making express reference to the case, upon which he relies and relied, that the Applicant had been, as he submitted, inconsistent in very material respects in relation to the very evidence in question. What Mr Matovu submitted and described is perhaps not entirely aptly described as inconsistency, but is more of the character of what he would submit to be 'late invention', or, at lowest, a surprising failure to deal consistently with his case as eventually put.
42.3      The Tribunal makes no reference at all to what Mr Matovu submits, and we agree, to have been a very important letter, dated 29 September 1999, written by the Applicant twelve days after Mr Byrne's interview, and one day after Mr Waite's, to his MP, save that the Tribunal says, in paragraph 42 of the Decision, that "around the same time it appears that the Applicant wrote to his Member of Parliament". This wording suggests that the Tribunal paid no regard to its contents: by virtue of the uncertain description of the letter, and the absence of reference to its actual date or contents, it may be that the Tribunal had forgotten that it was in the bundle, for the concentration appears to be on the nature of the Respondent's reply to the subsequent letter from the M.P. But it is a two-page letter, in which the Applicant sets out detailed complaints about what had occurred, including an account of, and complaint about, both the meetings. The gist of his letter is that he has been unfairly dismissed for dishonesty. There is not a word of suggestion that, in the course of such unfairness, there had been any unfavourable treatment of him on racial grounds, and in particular no mention either of the Nigeria statement so far as concerned Mr Byrne or the brothers statement so far as concerned Mr Waite.
42.4      The Applicant issued an Originating Application on 1 December 1999, alleging both unfair dismissal and race discrimination, and further and better particulars were served on 20 September 2000, but there was still no mention of the Nigeria statement or the brothers statement; nor were they included in his 25 paragraph witness statement served prior to the December hearing. The first time they are both mentioned is in the further set of further and better particulars of his claim served on 21 December 2000. In his second witness statement, served for the purposes of the hearing in March 2000, the Nigeria statement is included, but not the brothers statement.
42.5      We do not have notes of evidence, but Mr Matovu's written submissions of August 2002 recorded that when the Applicant gave evidence he said not that Waite had made the brothers statement but that he had said to him "your people must have helped you". Ms Adrienne Morgan, who has appeared before us, and also appeared before below for the Applicant, is not able to confirm this, and her submissions refer to the brothers statement.
43. It does appear to us perfectly likely that, given that no reference was made to any of the above by the Tribunal, it had forgotten the content of the important letter to the Applicant's MP (of which it made no mention) and the striking absence of early complaint or consistency, when it set out the conclusion it did as to the Applicant being consistent, trustworthy and reliable. Mr Matovu submitted that we should have that centrally in mind, when considering the consequence of the admittedly inordinate delay. He relies additionally on four further matters:
43.1      The Police Report. We have quoted from the Police Report in paragraph 33 above, which plainly gave notice to the Respondent of the British Transport Police's own provisional conclusion that there had been dishonesty by someone. Of the chargebacks being investigated by Mr Byrne in respect of the period April to July 1999, out of 62, 40 were the responsibility of the Applicant: as to the balance of 22, apart from 6 which were unidentified, there were 13 other employees with such chargebacks, none of them with more than 3. The Applicant had an accountancy qualification, and the numbers which were referred to by the Police in the report were all similar to bank card numbers, but fictitious. Although the Tribunal mentions in paragraph 20 of the Decision the fact that Mr Byrne made enquiries of the British Transport Police, and received a memorandum, it does not refer at all to the contents of that report, and, Mr Matovu submits, had it done so it could not have failed to conclude that Mr Byrne at least had grounds for suspicion of dishonesty. We agree that this seems a strange omission on the part of the Tribunal, but, given that the Tribunal did specifically refer to the report, albeit that it does not seem to have thought its contents of sufficient significance to mention them, such omission cannot in our judgment be ascribed to fading recollection or to the passage of time.
43.2      Mr Matovu refers to the fact that the Tribunal at no stage mentions the breakdown of the 62 chargebacks, to which we have referred. This again seems a strange omission, particularly as it appears (a matter to which we return below) that the chargebacks for which the Applicant had accepted responsibility to Mr Roberts would be required to be added to that number: and on any basis there is a substantial discrepancy between the number of apparently incorrect numbers on his vouchers, as compared with vouchers completed by others. Mr Matovu also points out that the Tribunal does not appear to address the fact that the majority of the erroneous transactions related to £10 penalty charges, on which the Applicant was entitled to receive a commission. Again, however, we are not persuaded that the failure to address these points is necessarily due to faded recollection.
43.3      There does however seem to be a serious error in relation to the Tribunal's understanding about whether the chargebacks being investigated by Mr Byrne and Mr Rose were the same as or different from the chargebacks which had been investigated by Mr Roberts. It is clear that the Tribunal was entitled to point out the mistake under which Mr Price seems to have been labouring in believing that the chargebacks he was investigating (which were loosely called the "second tranche") had actually come into existence after Mr Roberts' interview (paragraphs 55, 56 and 65 of its Decision). However what the Tribunal does not appear to have understood, or remembered, is that the chargebacks formed a subsequent tranche to that considered by Mr Roberts, in the sense that Mr Roberts no doubt was considering in May, and interviewing the Applicant in June or July (see paragraph 14 and 15 of the Decision) in respect of, what might be called Period 1, while Mr Byrne and Mr Rose were investigating chargebacks for Period 2, which had been effected after Period 1, but not after the Roberts interview. In that context the statement by the Tribunal in paragraph 29 is entirely wrong when it says that:

"The simplest of enquiries would have revealed that the chargebacks that Mr Byrne was now investigating covered the same period as those dealt with by Mr Roberts and Mr Lamming in July 1999, they related to the same transactions."

It appears to us that it is just this kind of mistake which can arise as a result of the passage of time, and it is important both because it caused the Tribunal to underestimate the involvement of the Applicant in chargebacks and to form a hostile conclusion to those on the part of the Respondent investigating the matter.

43.4      Perhaps the most significant omission in the Tribunal's Decision is the failure to refer to the evidence of Mr Osborne, who is recorded in paragraph 3 (v) as having been a witness. Mr Osborne's importance is as follows. The Applicant's explanation of the erroneous chargebacks is that he had adopted a system which led him to carry out an insufficient record of the numbers, both as a result of copying what Mr Osborne did, and indeed of being advised or instructed by him in this regard. As a matter of unfairness of procedure, the Tribunal was plainly entitled to be critical of Mr Price for not having checked the account he was being given by the Applicant with Mr Osborne. The Tribunal refers to this in paragraph 57 of its Decision:

"Mr Price did not see the point of interviewing Mr Osborne on the question of whether he had used a short method of completing debit card slips because "it was patently untrue what the applicant was saying"".

However Mr Osborne gave evidence at the Tribunal that he had not recorded his vouchers in that form, and certainly had had no discussion to that effect with the applicant. It might be that the Tribunal could have come to a reasoned conclusion that it disbelieved that evidence. But (a) it made no mention of the evidence at all and (b) so far as the breakdown of chargebacks is concerned (not addressed by it, as set out in 43.2 above) in this second tranche, whereas the Applicant had 40, Mr Osborne had only 1. The significance of this is at least two fold:

(a) It means that there was a substantial clash of evidence at the Tribunal between Mr Osborne and the Applicant, which the Tribunal was required to resolve, particularly before it could reach the conclusion as to the Applicant's trustworthiness and reliability, set out in paragraph 24 of its Decision and in paragraph 39 above.

(b) This evidence by Mr Osborne appears to have been an important factor in the evidence given by Mr Price at the Tribunal. Mr Price, when hearing the appeal, had accepted that the Applicant had not been fraudulent but concluded that he had been "totally careless and grossly negligent". With the benefit of Mr Osborne's evidence, which he plainly ought to have checked at the time but had not, it seems that he now changed his mind. The Tribunal in paragraph 71 is critical of him for saying that "in retrospect he now regarded his dismissal as justified for dishonesty and that he had been wrong partially to allow the Applicant's appeal". It appears to us difficult for the Tribunal to regard this as a matter of criticism of Mr Price, without at least mentioning the evidence of Mr Osborne.

44. We have had the benefit of submissions from both Mr Matovu and Miss Morgan, who has naturally urged us to conclude that there was sufficient evidence upon which the Employment Tribunal could reach the conclusion it did. It is plain that the question for us is one which revolves wholly round the considerations in respect of delay which we have set out at length above. We are not satisfied that there is any independent ground of appeal, such as Mr Matovu pressed upon us. Apart from his submissions on the insufficiency of the case that unfavourable treatment on racial grounds could be inferred, he submitted that the Tribunal had erred in its approach to the question of a comparator (by reference to Chief Constable of West Yorkshire Police v Vento [2001] IRLR 124 at para 7, and Hanly v Norinchukin International plc [2003] ICR 416 at paras 12 and 21) and that it had not adopted the correct test in respect of looking carefully at the non-discriminatory reasons for the Respondent's treatment of the Applicant by reference to Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337, and The Law Society v Bahl [2003] IRLR 640. He submitted that, on any consideration of such correct approaches or tests, the Tribunal ought to have found that the Respondent treated the Applicant as it did not because of race but because he had twenty times more chargebacks than any one else, and no adequate explanation. However it appears to us that on the face of it the Tribunal asked itself at any rate a correct question, namely whether the Respondent would have treated someone in the position of the Applicant the way it did if he had not been Black African, and so we are unable to find the decision flawed on that basis alone. However, after anxious consideration of the matters which we have set out above, we are persuaded that, given that in those circumstances the case hung entirely on the credibility of the Applicant, we are satisfied, in the light of the errors and omissions to which we have referred, that the decision of the Tribunal is unsafe, as a consequence of the inordinate delay prior to August 2003. We conclude that these errors and omissions, and especially the key omission of any consideration of the inconsistency or credibility of the Applicant, particularly as set out in paragraphs 42 and 43.4 above, are symptomatic of the inevitable lost recollection of the Tribunal, which meant that its assessment of the Applicant and of the evidence was flawed by the delay. We allow the appeal. Plainly this is a case where, albeit that such a substantial time has passed, and the very delay by the Tribunal has exacerbated that problem, we must remit this case for rehearing, in front of a different Tribunal, when all points for both sides will be live.

Kwamin

45. The Applicant, who was employed by the Respondent (Abbey National) as a customer manager, and resigned some time after her return from maternity leave, failed in her claims for unfair constructive dismissal, direct race and sex discrimination and victimisation in respect of Abbey National's treatment of her between 1998 and her resignation, which she alleged to be constructive dismissal, in April 2001. The hearing before the Employment Tribunal, again at London South, commenced on 3 December 2001 and ran for five days at that stage, namely up to and including 7 December, when, apart from witness statements which were read, ten out of the eleven live witnesses were examined. The Tribunal was adjourned to 14 March, and it seems that, when the adjourned hearing was first fixed, two days were set aside, 14 and 15 March. Very shortly before the hearing, it seems that the second day was cancelled by the Tribunal office. The solicitors for the Applicant immediately responded by a letter dated 11 March 2002 to a telephone call to the above effect on 8 March 2002, expressing concern that, if there was only one day fixed, it could either result in a further part-hearing or a delay in both parties receiving the decision of the Employment Tribunal, and urging that the second day of the hearing be kept, in order, if necessary, to allow the Employment Tribunal to make a decision: they wrote that "Our client is not well at the moment. We are concerned that any further delays could cause prejudice to her medical condition and lengthen the process further". Unfortunately, it does not seem that any notice was taken of this letter. The evidence of the last witness and the submissions were concluded on 14 March, and the 15 March indeed was not taken up in relation to this case.
46. It appears that there was a chambers discussion fixed for 25 June, at which the Chairman Mr Warren and the members attended, and a further day, 26 June, appears to have been taken up either with some further discussion or at any rate with Mr Warren sitting alone and beginning a draft of the Decision. So far as the parties are concerned, they knew nothing of this, and the Appellant's solicitors, in particular, became progressively more concerned as time continued to go by. Very properly, and, indeed, as we have indicated above should normally be done, those solicitors chased the Employment Tribunal. In a letter dated 10 December 2002 addressed directly to Mr Warren, the Applicant's solicitors recorded a telephone call that they had had with a Tribunal clerk on 9 December, informing him that the clerk had informed them that:

"…the panel members had still not met in Chambers and therefore the clerk requested me to write to you directly regarding the outcome of this case. This matter was heard in December 2001 and part heard in March 2002. Mrs Kwamin has not been able to move on and deal with matters, as the outcome of the Tribunal proceedings is pending…I would be grateful if you could advise us of a likely date when the panel will be meeting in order to consider an outcome to these proceedings, so that I can inform my client accordingly, as she is very anxious and stressed".

47. There was no reply at all to this letter which had been sent direct to the Chairman, either so as to correct the obviously erroneous statement that the clerk was thus recorded as having made (given that there had been a chambers meeting on 25 June: although Ms Cunningham of Counsel, who, as we stated earlier, has appeared for the Applicant before us, suggested that perhaps the answer is that it may then have been intended to have a further chambers discussion – although none in the event was had), or so as to give an answer as to when the Decision was likely to be produced. A further chaser direct to Mr Warren from the solicitors dated 12 March 2003 was again not replied to. In response to another chaser dated 2 April 2003, the personal assistant to Mr Warren, by then acting Regional Chairman, stated, by letter dated 14 April, "The Chairman apologises for the delay in sending the Decision. The draft has been done and is in the course of being faired…". A yet further chaser dated 12 May 2003 obtained a response from a different p.a. to Mr Warren, again apologising for the delay, in a letter dated 13 May 2003. The judgment was eventually handed down, as we have indicated in paragraph 2 (iii) above, on 3 June 2003.
48. Pursuant to an order by Judge McMullen QC, dated 15 September 2003, the Chairman, Mr Warren, was invited to give an explanation for the delay, and he did so by a letter dated 13 November 2003: he, or the person to whom the letter was dictated, inaccurately referred to himself in the body of that letter, which we shall quote, as Regional Chairman, which by that time he had become; but he was not Regional Chairman at the time, and the reference in the second paragraph is intended to be a reference to Mr Warren himself, the Chairman. It reads as follows:

"…Having inspected the file it shows that the Tribunal sat in chambers over two days in June 2002 during the in chambers the first draft was dictated and a note was made as to the various issues and the Tribunal's conclusion is the draft dictated decision was sent to the typing for a first draft on the 14 July 2002 – some 3 weeks after the in- chambers.

The file then lay with the Regional Chairman [this means himself: see above] – it was a detailed case and for a part of the time it was an oversight that decision had not been finalised then because of extreme pressure of work the draft was not finalised and faired until considerably later. The Chairman apologises for this delay…The delay in promulgation is deeply regretted, the Tribunal reached its conclusion when matters were fresh in its mind and the first draft was dictated within a short time of concluding the evidence and hearing submissions…Again I would express my regret at the delay and apologise to the parties."

49. Once again there can be no doubt that there was unconscionable and unexplained delay. As indicated above, it makes it all the more unfortunate that the very sensible suggestion of the Appellant's solicitors (which we recommended, in paragraph 10 above, should become a regular practice, particularly where a case has already gone part heard) that the following day be reserved for discussions between members, was not accepted. In any event the decision should have been reached by the end of June 2002, and promulgated shortly thereafter, in which case the three and a half month period, which would have been entirely understandable for this case, which was not a straightforward one, would not have been exceeded. As it is, at our request the Chairman supplied to us (and we made available to the parties) a copy of the draft decision, as it is believed to have stood in the middle of July 2002 on return from typing, as referred to in his letter. It would not ordinarily be appropriate for us to consider this kind of draft, save for the exceptional facts that occurred in this case, and in any event we have not encouraged Counsel, nor have they sought to carry out, a substantial nitpicking exercise. Ms Cunningham however overnight carried out a very helpful analysis, which she in the event limited to consideration of three particular paragraphs, to which we will make reference below. Suffice it at this stage to say that there was a typed draft judgment, double spaced, running to just over 25 pages, only dealing with the facts, and including no conclusions, substantially annotated in handwriting: the eventual Decision, single spaced, runs to just over 28 pages, and is therefore, as Ms Cunningham says, more than twice the length of the draft; and the concluding nine pages (paragraphs 17-24) of the final Decision are not, as she points out, foreshadowed at all in the draft or the manuscript amendments. Subject to the particular matters shortly discussed below, the only point that arises is as follows. On the basis of seeing the letter of the Chairman alone, a conclusion might have been open that the Decision was in large part finalised; such that any errors would then be crystallised, and the subsequent passage of time, due perhaps to incompetence in administration, would not have been relevant as indicating any loss of recollection, and in particular would have indicated that any errors there might be had not occurred as a result of the passage of time after the draft. We referred to this possibility in general terms in paragraph 15.6 above. However it can be seen that such is here not the case. There was plainly a good deal of work on the draft after June 2002, which must be assumed, in the light of the Chairman's explanation of its sitting on his desk, to have been in April and May 2003, at least a year after the end of the hearing.
50. The issues to be tried by the Tribunal were set out in a consolidated document, because there were originally two originating applications. It was prepared by the Applicant's solicitors, and was entitled "Chronology Issues & Heads of Claims", and it recited in paragraph 1 that the Applicant made complaints of race, sex discrimination, victimisation, constructive dismissal and [breach of] working time regulations. In paragraphs 2 and 3, under the heading "Victimisation" the following is set out:

"2 The Applicant did a protected act when she assisted [another] applicant Joyce Sian. In 1998 the Applicant informed Joyce Sian that during a staff meeting [it was said] that Joyce would not be doing her job as a counter supervisor when she returned to work. …

3 All incidents of race and sex discrimination are also acts of victimisation under the RRA and SDA."

51. At subparagraphs 4 (i) to (xvii) of the document, under the heading "Race & Sex Discrimination" and the subheading "Issues", there are set out the issues to be tried; that this is the case is clear from the repetition of these subparagraphs in their entirety in paragraph 5 of the Decision, introduced by the words: "The issues for the Tribunal are whether:-". There is then another heading, still under Race & Sex Discrimination, "Chronology", and then finally there are four paragraphs relating to Constructive Dismissal. The unanimous Decision of the Tribunal in its lengthy judgment was that all the complaints were dismissed.
52. Although the Applicant's Notice of Appeal seeks the setting aside, on the grounds of delay, of the entirety of the decision, in her skeleton argument and her oral submissions to us Ms Cunningham only referred us to four errors which she said were the consequence of the delay and should lead to the setting aside of the decision and its remission. The first of these simply added to the general aura of delay in the case, and plainly does arise as a consequence of it, namely that, both in the heading of the Tribunal decision, and in the body of it, in paragraph 13, it is recorded that the Tribunal sat over seven days hearing evidence, with 15 March 2002 recorded as being such seventh day; when in fact the hearing only took six days, the 15 March originally booked being cancelled, as we described in paragraph 45 above. This suggests that the Chairman, in writing the decision, was simply taking this fact from a file, without any recollection of his own as to how long the hearing in fact took. Of itself plainly this is not a material factor, but it must colour and inform our consideration of any substantive errors identified.
53. The first such material error or omission upon which Ms Cunningham relies relates to a central question on the issue of victimisation, as we have stated in paragraph 22 above, namely the Respondent's knowledge of a protected act. As can be seen from the Heads of Claim document, the protected act upon which the Applicant relied at the outset of the Tribunal was her alleged assistance to Ms Sian, who subsequently herself brought an application before the Tribunal alleging race discrimination (later adjudicated to be successful in part, after a hearing in June 2001), namely by informing her, shortly after a meeting in August 1998, of the allegedly discriminatory conduct there occurring. It appears to have been permitted by the Tribunal to the Applicant to argue that there was also a subsequent protected act, namely that she agreed to give evidence in Ms Sian's support, at the subsequent Employment Tribunal.
54. The relevant findings and conclusions of the Employment Tribunal are set out in paragraphs 16 and 20 of the Decision. Paragraph 16 unfortunately has 94 subparagraphs in Roman numerals, and we do repeat our constant request to Tribunals to attempt to make their paragraphs consecutive, with any subparagraphs being numbered 16.1, 16.2, 16.3 etc, because otherwise over pages of a Decision it cannot be immediately clear in which main paragraph the reader is finding himself. The material paragraphs are as follows:

"[16] (ix) In or about August 1998 there was a staff meeting which the Applicant attended. A colleague of the Applicant, Joyce Sian, was absent at the time. The staff meeting concerned proposed reorganisation to take place in the Branch, and after the meeting the Applicant telephoned her friend Joyce Sian to inform Joyce Sian that when Joyce returned to work after her absence … she would be likely to be doing a different job [from] the job she did before her absence.

(x) Joyce Sian subsequently brought a claim alleging race and sex discrimination against the Respondents at the Employment Tribunal in 1999 about one year later.

(xi) Later the Applicant received a witness order from the Tribunal issued at the request of Joyce Sian for the Applicant to attend as a witness at … [the] … hearing of Ms Sian's Employment Tribunal application. In fact Ms Sian's claim was compromised and it did not actually reach the Tribunal for hearing and hence the Applicant did not give evidence.

(xii) The Respondents were not aware that the Applicant was proposing to give evidence on behalf of Joyce Sian and there is no reason to suggest that the Respondents would have known that the Applicant had informed Joyce Sian of what was discussed at the staff meeting in August 1998 when Joyce Sian was absent from work. The Applicant's informing Joyce Sian of what occurred at the staff meeting does not constitute a "protected act" within the meaning of either the Race Relations Act 1976 or the Sex Discrimination Act 1975. Giving or intending to give evidence in a discrimination claim could amount to a protected act.

[20] (a) The Applicant relies on the fact that she informed … Joyce Sian in August 1998 when Joyce Sian was absent from work of the proposed reorganisation within the branch. The Tribunal does not consider that such conduct falls within the definition of a protected act as defined by reference to the Sex Discrimination Act or the Race Discrimination Act. That conduct is the only conduct relied on by the Applicant to justify the subsequent treatment of her as amounting to victimisation. The Tribunal having found that conduct did not amount to a "protected act" all allegations of victimisation must therefore fail and indeed some of the allegations in any event [preceded] the alleged protected Act.

(c) It is correct that the Applicant received a witness order issued by the Tribunal to support Joyce Sian in a claim commenced in November 1999. The Applicant was off sick not returning until October 2000 and a witness order was issued in September 2000. The Applicant did not attend the Tribunal. No-one at the Respondents [was] aware that the Applicant was proposing to give evidence to support Joyce Sian in a discrimination complaint against the Respondent. There is no evidence that Jane Firth, Nick Mears or Jim Hooper had any knowledge of the Applicant's alleged involvement in any proceedings brought by Joyce Sian."

55. Ms Cunningham points to the clear error of fact in the second sentence of paragraph 16 (xi). Ms Sian's claim was not compromised, and did proceed to the Tribunal for hearing in June 2001. However this error of fact is not expressly perpetuated when the Tribunal reconsiders the position in paragraph 20 (c), which correctly records that the Applicant "did not attend the Tribunal l". The error falls to be considered in the background as possibly indicative of lack of recollection or muddle caused by the delay, but is not of itself significant.
56. Paragraph 16 (xi) is one of the subparagraphs which Ms Cunningham has shown us materially altered between the typed draft, the manuscript amendments and the final form, but again we do not see any particular materiality in this regard. Although the Tribunal does not deal with the point at any great length, we do not conclude that there is any lack of clarity or certainty about the Tribunal's Decision in relation to the knowledge of the Respondent that the Applicant was to give evidence. The case for the Respondent at the Employment Tribunal was straightforward. They had no knowledge that she was going to be a witness. She was listed as one of those against whom a witness order was sought, but she did not in the event attend to give evidence at the Tribunal.
57. However we find very much more powerful Ms Cunningham's attack on the Tribunal's conclusion in relation to the Respondent's knowledge of the protected act that was, in fact, the main basis of the Applicant's case. The Tribunal's reasoning, set out really to all intents and purposes twice in the same terms, in paragraphs 16 (xii) and 20 (a) of the Decision, that the conduct of the Applicant in warning Ms Sian "does not constitute a protected act" is hardly compliant with the principles of Meek v City of Birmingham [1987] IRLR 250. As for the question of the Respondent's knowledge of that protected act, this is dealt with in paragraph 16(xii) by the statement that "there is no reason to suggest that the Respondents would have known". However if the evidence of the Applicant was to be accepted, there was indeed reason so to suggest. In two paragraphs in her witness statement, the second of which is detailed, she gives an account of what she asserted to be a change in attitude towards her, by identified employees of the Respondent, which the Applicant asserted to have resulted from her assistance to Ms Sian. In particular she gives an account of a meeting on 6 November 2000 with Jim Hooper, which, according to her, culminated in her asking Jim Hooper "what had Joyce got to do with my salary disparity, appraisal and pending queries?" and Jim Hooper replying "I cannot tell you, because you know what I mean". This is patently material evidence, which it seemed to us that the Tribunal must simply have forgotten, by virtue of the passage of time. There is certainly no conclusion by the Tribunal that that evidence is not to be believed.
58. As to unfavourable treatment, without which knowledge of a protected act would be immaterial, Ms Cunningham accuses the Tribunal of a material omission by reference to its alleged failure to make a finding in respect of one particular allegation of unfavourable treatment, namely that the Respondent failed to carry out a risk assessment either before or after she went on maternity leave. Ms Cunningham has referred us to Day v T Pickles Farms Ltd [1999] IRLR 217 and Hardman v Mallon t/a Orchard Lodge Nursing Home [2002] IRLR 516 for the proposition that the failure to carry out such a risk assessment, as required by the Management of Health and Safety Regulations 1999, can amount to sex discrimination. However the Respondent's case is, as indeed the Chairman himself pointed out in his letter of 13 November 2003, in a passage which we have not quoted above, that this allegation was not an issue to be decided by the Tribunal. We have referred, in paragraph 51 above, to the Heads of Claim so far as concerned discrimination, and to the issues set out at paragraph 4 (i) to (xvii). The failure to carry out a risk assessment is not listed as one of the issues. We have already referred to paragraph 5 of the Decision, where, under the heading "Race & Sex Discrimination", the Tribunal recites those same issues as the ones which it had to decide. Risk assessment is not among them. Ms Cunningham points to the Chronology part of the Heads of Claim document, in which it is recited, as part of that Chronology, that "no risk assessment was conducted before or after the Applicant's maternity leave". There is no addressing of this as an issue in the closing submissions for either party below, but in the closing submissions of Counsel for the Appellant there is reference to it under the heading "Findings of Fact", the absence of such risk assessment being one of the findings of fact which the Tribunal is invited to make. By way of findings of fact, the Tribunal refers to the conduct of the Respondent towards the Applicant on her return from maternity leave, in paragraph 16 (liii) and (liv) of the Decision, and the Tribunal makes no criticism in that respect There was no specific finding of fact such as was invited by Counsel for the Applicant; but then, as we have indicated, it was not an issue of itself. We are entirely satisfied both that there is no error of law by virtue of the Tribunal's failure to deal with this issue, which was not part of the issues referred to it: and in any event that there is no omission from the Tribunal's Decision resulting from some defect in recollection.
59. The last matter to which Ms Cunningham refers is an issue which was listed in the Heads of Claim document, and hence in paragraph 5 of the Decision, namely "(v) the Applicant did not have an appraisal in December 1999". The finding in this regard appears in paragraph 16 (xlvi) – (xlviii). After describing the annual staff appraisal system the Tribunal continued:

"(xlvi) … The appraisal procedures … provide that where it is not possible to assess an individual, for example, where the employees currently on maternity leave and an appraisal was not given before the employee went on leave, then the assessment should be deferred until the employee's return to work and the individual's salary should remain unchanged until her performance can be rated with any increase then becoming effective in the case of those absent on maternity leave from the date of return to work.

(xlvii) The Applicant started her maternity leave on 19 December 1999 and had been ill since 4 October and no appraisal had been done. Notwithstanding that the Applicant had not had an assessment, she received a 'P' rating rise as of March 2000. A 'P' rating is given when the employee has met the principal accountabilities required, but failed to meet the full requirements. It is not known and cannot be explained why this rise was given or who instructed that it be given. Under the Respondent's own procedure, the Applicant's rating should have been deferred until her return, however she in fact received a pay increase.

(xlviii) The Applicant complains that she should have been given an appraisal during the period between 7 September and 4 October 1999 for the calendar year 1999 and given a rating at a higher mark than 'P'. The Respondent would not have known that the Applicant would be going off ill again in October 1999 and would have no way of knowing she would not be working up to the time she began her maternity leave. It is unrealistic to have expected the Respondent to have carried out an assessment in that period. There is no evidence before the Tribunal to support this Applicant's argument that a higher rating should have been given."

60. On the face of it this is a clear answer, and it reflects the witness statement of Jane Firth for the Respondent (paragraphs 19-20) and of Julie Mitchell at paragraph 14. However the passage in subparagraph (xlviii) stating that "The Respondents would not have known that the Applicant would be going off ill" and that "It is unrealistic to have expected the Respondent to have carried out an assessment in that period" has been shown, as a result of the detective work by Ms Cunningham to which we referred in paragraph 49 above, to have been added only in the final form of the Decision, and not to have featured in the June 2002 draft, or the manuscript amendments to it. The significance of this is that it is clear that the consideration of the facts in this regard will certainly have been in the latter end of the delay period. What is significant is that there is an omission from consideration by the Tribunal of the evidence in this regard by the Applicant. In the first numbered paragraph 120 of her witness statement she said that she was told by Jane Firth that "my appraisal would be conducted by phone and post. She went on to say that when I receive my appraisal I should phone her to discuss it, make my comments and send them off to her. Jane would rewrite it and send me the final appraisal report for my signature and return". Hence the issue which the Tribunal had to resolve was not whether the Respondent ought to have known that she was going to be off, or ought to have thought of carrying out an appraisal before she went, in accordance with the procedures, but that she was actually promised that there would be an appraisal by Jane Firth, while she was away, and that that promise was not fulfilled. That conflict of evidence remained and remains unresolved.
61. We turn then to our consideration as to whether we are satisfied that, by virtue of the unjustifiable delay, the judgment is unsafe. We must immediately say that we are entirely satisfied that there is no question of the Decision being unsafe by reference to any other claim than that for victimisation. No errors, omissions, defects or flaws have been shown to us save in respect of the matters set out above, and, as we have already stated in paragraph 15.3 above, where any defect due to the delay cannot be shown to have infected the whole of the judgment, but only part of it, we would set our face entirely against the injustice of setting aside the whole of a decision. However, whether or not the Meek point or the failure to consider the conflict of evidence in relation to knowledge of the protected act as between Mr Hooper (or Miss Mitchell) and the Applicant, or as to the promise to carry out an appraisal as between Ms Firth and the Applicant, would be sufficient as self-standing grounds of appeal, we are satisfied that they are all consequences of the delayed judgment, such as to render the decision in that regard unsafe. The only issue that will remain for rehearing will be whether there was victimisation of the Applicant in failing to carry out the appraisal, by virtue of an alleged protected act in informing Ms Sian of the Respondent's conduct at the August 1998 meeting. That issue will be remitted for hearing by a different Tribunal. We understood it to be conceded by Ms Cunningham that if there be a remission, the Respondent's cross-appeal in respect of the Tribunal's conclusion as to 'continuing act' and/or extension of time on the grounds that it was just and equitable to do so, both very exiguously dealt with in paragraph 23 of the Decision, should also be allowed and those issues remitted. In any event we are satisfied that that is the right course

Martin

62. Mrs Martin brought a claim in the Employment Tribunal in London South against the London Borough of Southwark, claiming unfair constructive dismissal, and her complaint was dismissed, on the basis of the unanimous finding of the Tribunal that she was not dismissed but had resigned. She was represented by a friend, her partner Mr Flatman. Before us Mr Flatman has attended together with the Applicant. The Applicant instructed solicitors and Counsel to pursue her appeal, and Miss Sally Cowen prepared a full skeleton argument on the Applicant's behalf, and was prepared to and did address us. However before she did so, Mr Flatman wished to address some additional remarks to the Tribunal, which we allowed him to do, and in addition wished to make an application to put in fresh evidence on the appeal, with which Miss Cowen had previously indicated she had instructions not to proceed, and during the course of his oral submissions, he also sought to apply to amend the Notice of Appeal. We shall explain later the nature of those applications, which we dismissed.
63. The Applicant was employed as from 1988, latterly as an acting Secure Unit Manager at a large residential centre for disturbed young people. The circumstances of her claim related to the period between summer 2000 and March 2001. Her Originating Application was issued in August 2001, and the hearing commenced on 4 February 2002, having been listed as a two-day hearing by an order of the Employment Tribunal made on 20 November 2001 in the presence of both Mr Flatman and Counsel for the Respondent. The case went part heard at the end of those two days, during which the evidence for the Applicant was given, and there were two further days, 25 and 26 June 2002, when the case for the Respondent was presented. Written submissions were prepared by both sides and presented by 29 July 2002. As set out in paragraph 2 (iv) above, there was a chambers discussion day on 16 August 2002, and the decision was promulgated on 3 December 2002.
64. Pursuant again to the order of Judge McMullen QC, sitting on an application under Rule 3 (10) of the Employment Appeal Tribunal Rules (to which we shall refer below) dated 15 September 2003, the Chairman was invited to give an explanation for the delay between the close of the oral proceedings and the Extended Reasons; and the Chairman, Mr Houghton, wrote by letter dated 30 October 2003 as follows:

"The proceedings were completed at the end of the afternoon on 26 June. The Tribunal decided in view of the amount of evidence to be considered to meet in Chambers to deliberate and reach a decision. The case being one of constructive dismissal based on the implied obligation of trust and confidence, it was considered necessary to consider in detail the events relied upon which spanned a considerable period of time.

The members of the Tribunal were not able to meet until 16 August 2002. This is not an unusually long period because such chambers meetings depend upon the availability of members and, in particular, the Chairman (especially full time chairmen, who are booked against multi-day cases many months in advance and who usually sit on five days each week).

Following the chambers discussion (which took the best part of a day) the Chairman commenced the process of dictating the decision. The dictation was completed when time permitted over the following weeks and the tape was sent for typing on 12 September 2002.

The first draft returned from typing on 18 September 2002. The Chairman was absent from the Tribunal on other judicial business and annual leave between 30 September and 21 October 2002.

On 4 November 2002 the faired draft Decision was sent to the Members for their comments. The comments were received on 18 November 2002.

The Chairman was absent on annual leave from 22 November to 2 December 2002.

The members' comments were incorporated into the extended reasons on 2 December and the final draft was signed by the Chairman and sent for promulgation."

65. The original Notice of Appeal in this case was not drafted by lawyers: it was signed by the Applicant herself. Pursuant to Rule 3 (7) of the Employment Appeal Tribunal Rules, the Registrar concluded that the grounds of appeal stated in the Notice of Appeal did not give the Appeal Tribunal jurisdiction to entertain the appeal, and so notified the Appellant. The Appellant then had the right to take either of the steps specified under Rule 3 (8) or 3 (10). The Appellant exercised her right to withdraw the original Notice of Appeal so challenged and substitute another for it under sub-rule 3 (8), which gives a right to an appellant to serve a fresh Notice of Appeal, taking the advantage of the original time limit, and that substitute Notice was drafted by her solicitors. That Notice too was subjected to Rule 3 (7) by the Registrar, but on this occasion the Appellant applied under Rule 3 (10) for reconsideration, and, as has been the case since the Practice Direction of December 2002, the right was given to her to have the matter reconsidered in open court, which was the occasion of Judge McMullen QC's order. What is clear however is that it was, in those circumstances, only the fresh Notice of Appeal which was sent through for a full hearing, and indeed which Ms Sally Cowen came prepared to argue. That Notice of Appeal was limited to a challenge on the grounds of delay after the conclusion of the hearings before the Tribunal on 26 June 2002. It alleged, by reference to the period between 26 June 2002 and 3 December 2002, that:

"(b) A period of nearly six months from the date of the hearing to the issue of the Decision is inordinate and contrary to guidelines.

(c) It is almost inevitable when such a long period elapses between the hearing and the issue of the Decision the Tribunal will have forgotten the characteristics of the individual witnesses and it will make it almost impossible for them to assess the credibility of witnesses where facts are in dispute and/or such an impression will inevitably be given to the parties."

66. In the course of submissions, both Mr Flatman and Ms Cowen conceded what is obviously the case, namely that the Tribunal could not begin to form its conclusion until after receipt of the written submissions, which in this case was 29 July 2002, so that the time in question challenged by the Notice of Appeal is just over four months. It was against that background that Mr Flatman made his applications. This Appeal Tribunal received just before the start of this hearing, under cover of a letter dated 30 January 2004, an affidavit sworn by Mr Flatman himself on 26 January 2004. It purports to give an account of what occurred at 9.30am on 25 June 2002, i.e. immediately prior to the first part heard hearing, when it is said that he and the Applicant found themselves in a café directly opposite the Employment Tribunal, the two lay members of the Tribunal entered the café and purchased refreshments, and then sat down next to them. According to Mr Flatman, he overheard one of the members say that he could not remember much about the case and that he had had to look at his notes on the train down to the Tribunal. Mr Flatman's affidavit states that at that stage he drew to their attention the fact that he and Mrs Martin were participants in the case which they were discussing. It was pointed out, on receipt of the affidavit by the Appeal Tribunal, that such affidavit could not simply be lodged, and served on the Respondent, but that there would need to be an application to adduce it by way of fresh evidence, and such application was therefore made at the hearing by Mr Flatman, in the circumstances to which we have referred in paragraph 61 above. Despite the fact that it was served so very shortly before the hearing, the President thought it appropriate to try and obtain comments on such affidavit from the Chairman and Tribunal members, de bene esse, in the limited time available. The Respondent's response meanwhile was to point out the delay, and to take the point that the affidavit was in any event irrelevant to the present appeal "in that the delay complained about is delay after the hearing to which the affidavit purportedly relates".
67. By letter dated 6 February, in immediate reply to the request from the Appeal Tribunal, sent on behalf of the Regional Secretary, a written response was reported from one of the lay members, who had no recollection of the alleged incident and added "I believe if it had happened I would remember it, as it would have been the one and only time such a situation had happened", while it was reported that Mr Houghton the Chairman confirmed that "nothing was brought to his attention during the hearing either by Mr Flatman or the members concerning the alleged incident. Mr Houghton feels certain that had such an incident occurred the members would have drawn it to his attention". The second lay member however could not be contacted as he was presently abroad. The reaction of Mr Flatman to the point, which was further addressed to him in the course of argument by this Tribunal, that the evidence in any event was outside the ambit of the Notice of Appeal, was to seek, during his submissions, permission to amend the Notice of Appeal.
68. This has obviously been an entirely unsatisfactory way of going about things, and is only partially explicable by virtue of the fact that Mr Flatman, who does have some experience of tribunals, is not a lawyer. We had no doubt at all that the application for permission to amend the Notice of Appeal (in some unspecified form so as to bring in – or bring back in – a complaint about a period earlier than 25 June) should be refused. Not only is this because of the very substantial delay (of course the amendment would be way beyond the ordinary time limit permitted for lodging an appeal), the shortness of time before the hearing and lack of notice of the application, and prejudice to the Respondent, but this is a case in which an earlier Notice of Appeal has already been withdrawn after challenge under Rule 3 (7), and permission has in those circumstances only been given, pursuant to careful consideration by the judge under Rule 3 (10), for this Notice of Appeal alone. As for the application to admit further evidence, that fails upon the basis that it is outside the Notice of Appeal, but it would in any event be objectionable and refused on at least the following grounds:

(i) It is served extremely late, as discussed, and in breach of the order of Judge McMullen QC of 15 September 2003 which directed (in accordance with Rule 7 of the Practice Direction) that any application for fresh evidence should be made within 14 days of his order.

(ii) The extremely late service is further compounded by the fact that it did not even give a proper opportunity for comments upon what was obviously a serious matter, and despite the best efforts to attempt to obtain such responses, one of the lay members was abroad.

(iii) The affidavit was sworn on 30 January 2004 and related to alleged events on 25 June 2002. No mention had been made of them before, not only in the course of this appeal but on the day itself, when, if it was to be of any relevance, it should have been brought up before the Tribunal, so that the Tribunal could deal with it. This is perhaps where the fact that Mr Flatman is not a lawyer may redound to his advantage, but it is obviously the case that if indeed there was concern that by virtue of the passage of time between February and June the lay members might not have fully recollected the evidence, any sensible person, certainly any lawyer, would wish to draw that to the attention of the Tribunal, and ask that they perhaps (especially in the light of what he was alleging that they had just a few minutes previously said in his hearing) be given a further opportunity (perhaps an oral statement from each side) to refresh their memories. This is a course which should be taken in future if this alleged event ever were to arise.

69. In those circumstances, we put the alleged occurrence from our minds, and in any event we are not directing ourselves towards any alleged passage of time between February and June 2002, but we would take this opportunity to reiterate, quite irrespective of the facts of this case, what we have said in paragraph 6 (ii) above, that the parties and the Tribunal should take steps to ensure both the giving of better estimates and the least possible adjournment between hearings.
70. We turn to consider the delay after 29 July. Our conclusion is, both by reference to the relatively speedy convening of the chambers discussion and the need for allowance to be made for typing, for the sitting difficulties of Chairmen and for communications with lay members, that in this case a period of three months after 29 July would not have been excessive. About a month over that time was in fact taken in the circumstances to which Mr Houghton refers. We would not wish to criticise him, although it fortifies our call, set out in paragraph 10 above, for the administration of employment tribunals to take into account the need for more flexibility in the listing of cases for Chairmen who must have time to write decisions. However there was, in this case, some delay over and above the normal passage of time, and it will be necessary for us to consider, in the light of this case being very much at the lower end of the sliding scale referred to in paragraph 15.4 above, whether there are errors or omissions in the Decision as handed down which lead us to conclude that the decision is unsafe by virtue of that delay.
71. The case for the Appellant was that her resignation amounted to constructive dismissal, because the Respondent was in breach of its implied obligation to maintain trust and confidence. Leaving aside her allegation of breach of time scales in the grievance procedure, her primary case was that in the light of the allegations of dishonesty against her by the centre's senior finance officer, Mr Sivakumar, the Respondent did not adequately deal with Mr Sivakumar and/or failed to provide the Applicant with adequate support. The Decision is on its face a clear and full one, but Miss Cowen contended that there were material errors or omissions in it which were indicative of loss of recollection of the case, in accordance with the general considerations we have set out above.
72. Miss Cowen's first submission was that "the Tribunal failed to take into account the evidence of the Applicant and/or her witnesses when considering the decisions of the facts of the case". As adumbrated in paragraph 7 above, reference can be made, when considering delay after the close of the hearing in the preparing of a judgment, to the fact that (in this case) the Applicant's evidence was further off in time from the Tribunal's recollection, by virtue of the break between the first and second parts of the hearing. The Applicant cannot however illustrate this proposition by indicating any particular significant evidence of the Applicant which was ignored or missed out. Her proposition is supported only in the following way:

(i) It was suggested with reference to the Tribunal's recitation of findings of fact between paragraphs 5 and 35 in its Decision that there was little (or perhaps, as it became in oral submissions by Miss Cowen less) reference to the Applicant's evidence, as compared with reference to the evidence of the Respondent. There is no need for the Tribunal in relation to every individual finding of fact to recite in detail the evidence on either side and then resolve any differences: clearly this exercise must be reserved for any significant conflict of evidence. This was not a case in which the decision of the Tribunal did depend upon resolution of particularly acute conflicts of evidence in relation to particular incidents, but rather an assessment of the totality of the evidence on either side. We are not persuaded that in this passage of the Decision the Tribunal under-represented the Applicant's case in its summary. There are, so far as we can see, seven express references to the Applicant's case or evidence, not six as Miss Cowen suggested (namely in paragraphs 5, 6, 9, 10, 11, 15 and 24). Miss Cowen enumerated eight such references to the Respondent's case. Even if it were six references compared with eight, rather than seven compared with eight, this is not a balancing act which we either find helpful or persuasive. In terms of the preference of the Tribunal for the Respondent's witnesses, as opposed to the Appellant's, in relation to their interpretation of what occurred, the seminal passages appear to be:

"6 The Applicant was a conscientious manager who was highly thought of by her staff. We further find, contrary to the Applicant's suggestion, that that was an opinion of her ability shared by the management team.

18 …The weight of the evidence which we heard throughout this case, including evidence from witnesses called on behalf of the Applicant, is that nobody within the Respondent's organisation (apart from Mr Sivakumar) at any stage believed his suspicions to be true or entertained them seriously at any level.

22 … In our view it is clear that, with the sole exception of Mr Sivakumar, all those involved had no doubt that the external investigation by the auditors would turn up no deliberate wrongdoing or dishonesty and was embarked upon as an exercise in transparency, in an effort to dispel Mr Sivakumar's suspicions."

After assessing the evidence in this way, the Tribunal comes to the conclusions, with regard to the Respondent's dealing with Mr Sivakumar, in paragraph 39, as to the Respondent's "handling of the difficulties that it faced [being] in all the circumstances, careful, thorough and reasonable" and as to its alleged failure to support the Applicant, in paragraph 40, that "we do not consider that the Respondent failed to supply adequate support to the Applicant or failed to give her sufficient information as to the progress of the investigation".

(ii) The only other argument that the Applicant could put forward in this regard was by reference to an assertion that paragraph 27 of the Decision, in which the Tribunal makes its findings of fact as to what occurred at the meeting on 25 January 2001, is drawn from the Respondent's witness statements, particularly that of Mr Saunders in paragraphs 12 to 14 of his witness statement. We have looked at those paragraphs, and it is apparent that the Tribunal accepted that evidence. It did not in fact adopt the words of Mr Saunders verbatim, but summarised his words. We see nothing whatever inappropriate in this regard, nor do we draw any conclusion from it as to flawed recollection by the Tribunal.

We see no sign whatever of a failure to deal with the Applicant's case. Though the Applicant's case may have come first in time, it is apparent that the Tribunal took it into account, and indeed its memory would have been and was refreshed by the delivery of the substantial written submissions delivered by Mr Flatman on Mrs Martin's behalf, consisting of fourteen closely argued pages dated 19 July and a further seven dated 28 July. The chambers discussion followed shortly after those dates, on 16 August.

73. So far as any alleged errors are concerned, the Applicant relied upon the following submissions:

(i) It was submitted that the Tribunal erred in relation to its conclusions about animosity between Mr Sivakumar and the Applicant, in its Decision:

"12 At the time Mr Rochester supposed that the incident arose from a personality clash between the Applicant and Mr Sivakumar, and that as mature adults they should be professional enough to resolve the difficulty without his intervention. He later discovered that the rift between the Applicant and Mr Sivakumar went deeper than a superficial clash of personalities. There was something of a history behind the animosity between them going back several years to a time when the Applicant's former partner, Mr Stuart Blackburn, had, when Mr Sivakumar's Line Manager, refused to allow Mr Sivakumar to attend a training course. It appears that that wound had not healed, resulting in a continuing negative effect upon the atmosphere and the working relationship between the Applicant and Mr Sivakumar."

There is a further reference in paragraph 39 of the Decision to the "obvious presence of personal acrimony between the Applicant and Mr Sivakumar resulting from the historical events involving Mr Blackburn". The Applicant submits that there to have been no basis for this, and that it is an indication of a mistake caused by faulty recollection due to delay. We were referred to the Claimant's Originating Application and her response to a request for further and better particulars, and to page 5 of Mr Flatman's submissions on her behalf, in which the Applicant herself made the assertion that Mr Sivakumar's motivation was due to the dispute with Mr Blackburn, but it is pointed out that the antagonism was there not asserted to be mutual. However it is clear that the Tribunal was entitled to have regard to the evidence of Mr Rochester in paragraph 14 of his witness statement that:

"Both of them…[referring to the Applicant and Mr Sivakumar]…were particularly intransigent, stubborn and unwilling even to contemplate the other's point of view, which made it very difficult to mediate between the two. I have no doubt that their blatant dislike for each other was coloured by historical events involving Mr Stuart Blackburn."

There is no indication, in our judgment, of any error of the kind asserted.

(ii) It was further submitted to be an error for the Tribunal to assert, in paragraph 40 of its Decision, that "as the evidence emerged in this case it became increasing clear that the only outcome which would have satisfied the Applicant was Mr Sivakumar's dismissal or, possibly, his public acceptance that his allegations were groundless". But this was plainly supported by the terms of the Applicant's own grievance complaint, referred to in paragraph 25 of the Decision, in which "under a heading entitled "Desired Redress" the Applicant stated that she would expect Mr Sivakumar "to be dismissed"", and by the closing submissions of Mr Flatman that "if her grievance was substantiated then she wanted disciplinary action and if he was proved to be discriminatory against her and it was gross misconduct, then for him to be dismissed, as he should have been for behaving in that fashion".

(iii) The finding of the Tribunal in paragraph 24 of the Decision that Mr Rochester advised the Applicant that an investigation by an external manager would necessarily take longer than the time scales laid down in the Respondent's formal grievance procedure, is said to be mistaken; but again we are satisfied that it is a finding that could be made by reference to paragraph 20 of Mr Rochester's witness statement, and indeed it is not inconsistent with page 4 of the Applicant's witness statement.

(iv) The only error which the applicant has been able to identify relates to the date when the Applicant's Stage 2 grievance against Mr Sivakumar was lodged with the Respondent. She gave notice to terminate her employment on 9 March 2001, to expire on 1 June 2001 (having arranged alternative employment). Her Stage 2 grievance was submitted on 31 May, the day before such termination. The Tribunal refers, in paragraphs 35 and 39 of its Decision to her having submitted a Stage 2 grievance "after she left the Respondent's employment". This is, as can therefore be seen, incorrect, but it does not seem to us to negative the point that the Tribunal was making, namely that she was submitting the grievance when it was clear that it would be pursued after her employment had terminated, which in the Tribunal's view corroborated the existence of acrimony. The error of two days does not appear to us to detract from that point, and certainly does not amount to an error indicating material lack of recollection, such as to cast doubt upon the Decision.

74. There are other points that the Applicant made, as to the Tribunal not allowing the Applicant to cross-examine in relation to events after her submission of her notice, yet referring to some of those events in the Decision, and, while recording the statement in paragraph 23 that Mr Allen of the Respondent agreed to offer support, not dealing with the issue as to whether he did so, but subsuming it within the finding in paragraph 40, which we have quoted in paragraph 72 (i) above. But neither of these points, even if supportable, are in our judgment relevant to any question of the consequences of delay, and really amount to an attempt to put forward, or resurrect, independent grounds of appeal, which could not in any event of themselves begin to amount to an arguable appeal on a point of law.
75. It is our judgment that what the Applicant has sought to do here by way of appeal is, as did the Counsel in Cobham, to trawl through the Decision, but without alighting on any points which amount to an arguable case of injustice or prejudice by virtue of delay. The reality, as Mr Flatman came near to accepting in the course of his own individual submissions, is simply that the Applicant would have liked to reopen this case, and is unhappy with the result. Notwithstanding the severe criticism we have made in the course of this judgment in relation to delays in promulgation of judgments, particularly as in any event we are satisfied that the case of Martin does not fall into such category, we must warn parties and their representatives against using a case of delay as a way of seeking to get off the ground an otherwise unarguable appeal, which is not an appeal on a point or points of law, to which any appeal to the Employment Appeal Tribunal is limited. The reverse side of the coin to the fact that, as set out in paragraph 15.5 above, where there has been culpable delay, the deference to the employment tribunal as the industrial jury is lessened, is that an appeal ostensibly put on grounds of delay will not be regarded as an open sesame to a wide ranging review of the employment tribunal's decision. We agree with Mr Coney, Counsel on behalf of the Respondent by reference to his skeleton in Martin, that "this is not a case where it appears that the Tribunal had forgotten some of the evidence (as in Chinyanga) or where they required to recall the impression given by witnesses (see Barker …)" and because the appeal is one based on grounds of delay we simply record, without disagreement, his further submission that "the main facts were not in dispute. The application by the Tribunal of the law was impeccable. It is difficult to see what different findings of fact could have led to any different conclusion of law". But so far as concerns the ground of delay relied upon by the Applicant, while we agree that the promulgation of the judgment was some two to three weeks later than it should have been, we are not persuaded that there was anything by way of error or omission which casts doubt on the safety of the decision or indicates any defect or flaw resulting from that delay.

Result

76. Our conclusion consequently is that the appeals in Birmingham and Connex are allowed, and the claims are remitted to a different tribunal: the appeal and cross-appeal in Kwamin are allowed, to the limited extent set out in paragraph 61 above, such that the claim of victimisation, restricted to the protected act and the unfavourable treatment there referred to, is, together with the limitation issue attached to it, remitted to be heard by a different tribunal: and the appeal in Martin is dismissed. As for the future, our particular recommendations appear in paragraphs 6, 10, 16 and 20. We very much hope and expect that the kind of delay experienced in the first of the three appeals will, with the benefit of these recommendations and new systems introduced at the employment tribunals, not occur again.