United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR RICHARD LEIPER (of Counsel) Instructed by: Messrs Lupton Fawcett Solicitors Yorkshire House Greek Street London LS1 5SX
For the Respondent	MR WINSTON DAWES (Representative)

SUMMARY

Race Discrimination

Burden of proof in Race Relations Act 1976 s 54A. Whether a prima facie case had been made to transfer the burden. Application of Barton v Investec.


 


HIS HONOUR JUDGE McMULLEN QC

1. This case is about the burden of proof in race discrimination claims. The judgment represents the views of all three members. We will refer to the parties as Applicant and Respondents or by name.

Introduction

2. It is an appeal by the Respondents in those proceedings against a decision of an Employment Tribunal sitting at Leeds over three days, and one in chambers, Chairman Mr D P Burton, registered with Extended Reasons on 7 October 2003. The Applicant was represented there and here by Mr Winston Dawes, a lay trade union representative of PCS. The Respondent was represented there by a solicitor and here by Mr Richard Leiper of Counsel.
3. The Applicant claimed race discrimination, victimisation and harassment. At a directions hearing the claim was refined solely to reflect a claim of direct race discrimination. The Respondents denied they had discriminated against the Applicant.

The Issues

4. The essential issues were defined by the Applicant's representative before the Employment Tribunal. The Tribunal recorded them as follows:

"32. … The allegations effectively divided into three parts, firstly a failure to permit her to attend the PA diploma course, secondly subjecting her to an unduly critical IPR and thirdly, pursuing inappropriate and unfair disciplinary proceedings and failing to allow her to be represented at those proceedings.

33. Miss Wong is of Afro-Caribbean racial origins. She believes that she has been the subject of direct racial discrimination by reason of those origins. The respondents deny discrimination and/or the first respondents plead the statutory defence contained within section 32(3) of the Act, namely that they have taken such steps as were reasonably practicable to prevent their employees from committing acts of unlawful discrimination."

5. The Tribunal dismissed the Applicant's first two claims but found in her favour on the third. It ordered the case be re-listed for a directions hearing. The Respondents appeal against that finding. The Applicant does not appeal.
6. Directions sending the appeal to a full hearing were given by His Honour Judge Peter Clark in chambers, including directions for agreeing matters of evidence alternatively for submitting them to the Appeal Tribunal. No such application was made.
7. The Applicant did not produce a Skeleton Argument but relied upon a response to the Notice of Appeal. The Applicant was given permission this morning to refer to an additional bundle of documents. In fact Mr Dawes did not do so.

The Legislation

8. The Tribunal correctly cited the relevant provisions of the Race Relations Act 1976 which are as follows:

"1 (1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if:

(a) on racial grounds he treats that other less favourably than he treats or would treat other persons.

…

4 (2) It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee -

(a) in the terms of employment which he affords him; or

(b) in the way he affords him access to opportunities for promotion, transfer or training or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or

(c) by dismissing him, or subjecting him to any other detriment."

…

54A (1) This section applies where a complaint is presented under section 54 and the complaint is that the respondent:

(a) has committed an act of discrimination, on grounds of race or ethnic or national origins...

(2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent

(a) has committed such an act of discrimination or harassment against the complainant, or

(b) is by virtue of section 32 or 33 to be treated as having committed such an act of discrimination or harassment against the complainant

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

The Facts

9. The Applicant was employed by IGEN Ltd's predecessor in title in October 1988 as Assistant Careers Adviser, primarily responsible for advising young people on how to find work. In 1999 she transferred to a project called "The Learning Gateway", the purpose of which was to work with young disaffected people who frequently had significant personal problems, to support them into training and employment. Her role within this project was to act as a personal adviser to particular individuals.
10. The Applicant complained that between September 2001 and June 2002 she had been unlawfully discriminated against by Beverly Parsons, her line manager, Christine MacNiven, her senior manager and Liz Green, the Personnel Manager. They are all white and the Applicant is of Afro-Caribbean racial origins. The Applicant's allegations of less favourable treatment were that the Respondents:

(a) failed to allow her to attend a Personal Adviser diploma course;

(b) subjected her to an unduly critical Individual Performance Review (IPR) in April 2002; and

(c) pursued inappropriate and unfair disciplinary proceedings against her because:

(i) she refused to sign her IPR either to accept it or appeal against it when required to do so by her employment contract;

(ii) she had made an accusation of victimisation and harassment, had failed to withdraw it, or to justify it, or carry it through the First Respondent's harassment procedure.

11. The Tribunal dismissed the first two complaints. It focused upon the third. When the Applicant refused to sign the IPR form she wrote complaining of "victimisation and harassment". Ms Green required the Applicant to justify or withdraw her allegation. The Applicant decided she wanted a private discussion with Ms MacNiven. When she got there on 31 May 2002 she was surprised to find Ms Green giving advice and support to Ms MacNiven. Ms Green's account of that meeting included a threat of disciplinary proceedings against the Applicant and a report that Ms Parsons was frustrated with the Applicant's conduct.
12. The threatened disciplinary hearing was set up for 5 June 2002. The Applicant responded that Ms Green's attitude of defending Ms Parsons meant that the she would not get a fair hearing. Ms MacNiven and Ms Parsons attended.
13. On 6 June 2002 Ms Green sent two further letters to the Applicant. On behalf of Ms MacNiven she assigned the Applicant to different duties in the careers centre, reporting to a different manager.
14. A further disciplinary hearing was set up for 14 June 2002 and formal allegations of misconduct were made; that the Applicant had failed to complete her IPR form and had complained of victimisation and harassment without justifying or withdrawing them.
15. The Applicant was shocked by these letters and arranged a meeting with work colleagues. Ms Parsons and Ms MacNiven heard of the meeting and attended it. Having taken the view that the Applicant was critical of her manager they broke the meeting up.
16. The disciplinary meeting was finally fixed to take place on 24 June 2002. The Applicant had the assistance of Mr Dawes. A question arose about his entitlement to attend. Ms Green refused to postpone the meeting which went ahead without the Applicant or Mr Dawes.
17. On 27 June 2002 she was given a formal written warning and required to sign and return the IPR form and to withdraw the allegations "of victimisation, harassment, bullying and discrimination" or use the internal procedures. If she failed to do so further disciplinary action would take place.
18. On 2 July 2002 the Applicant appealed. A hearing was fixed but the Applicant went sick with "work-related stress" which position continued throughout the Employment Tribunal hearing and, we understand, continues today.
19. The Tribunal made very firm findings critical of the Respondents. Their actions were difficult to understand. Ms Green's action on 1 May 2002, placing the onus upon the Applicant to embark upon formal procedures "simply sowed the seeds of what was to follow." It was unreasonable for Ms Green to attend the meeting on 31 May 2002 without telling the Applicant. She turned it into a "confrontational meeting". The demand that the Applicant signed the IPR form was "obsessional." The Applicant had no hope for any support from "Ms Green, or those who worked with her." Ms Green used inappropriate language ("the language of lawyers") made threats to the Applicant and conducted herself inappropriately. Pressure increased on the Applicant so that in a formal meeting the person against whom she was complaining was "supported by her manager" and the Applicant was without representation. Both Ms Parsons and Ms MacNiven's conduct was inappropriate since it was inflammatory. There was no rationale for the Applicant's transfer back to a Careers Adviser. All of the Respondents were engaged in an entrenched position from which there was no sensible resolution over a trivial issue i.e. the signing of the IPR form and the harassment complaint. All Respondents were engaged in "unreasonable behaviour."
20. The Tribunal directed itself in accordance with Glasgow City Council v Zafar [1998] ICR 120 and The Law Society v Bahl [2003] IRLR 640, EAT Elias J, and Barton v Investec Henderson Crosthwaite Securities Ltd [2003] ICR 1205, decided on 5 April 2003 in the following terms:

"50. We recognise that we have to adopt a two-stage approach. Firstly, we have, to consider whether the applicant has proved on the balance of probabilities, facts from which we could conclude, in the absence of an adequate explanation, that the respondents have committed an act of discrimination against the applicant which is unlawful by virtue of section 1 or which by virtue of sections 32 and 33 of the Race Relations Act 1976 is to be treated as having been committed against the applicant.

51. We recognise that if Miss Wong has not proved such facts she will fail. We bear in mind that it would be unusual to find direct evidence of race discrimination. It is appropriate for us, at this stage of the analysis, to draw such inferences as it is proper to draw from the primary facts already found by us. Finally, we note that the word in section 54A is "could" and accordingly there is no requirement for us to reach a definitive determination that such facts as we find would lead us to the conclusion that there was an act of unlawful discrimination. It has been no part of the applicant's case that the respondents have failed properly to deal with a questionnaire or have breached any of the relevant Codes of Practice."

21. The Tribunal was well aware that unreasonable conduct in itself does not shed light on whether there has been discrimination, but unreasonable conduct without an explanation may give rise to a situation where a Tribunal is entitled to find that discrimination has taken place, for it cited from paragraph 100 of The Law Society:

"Where the alleged discriminator acts unreasonably then a tribunal will want to know why he has acted in that way. If he gives [a] non-discriminatory explanation which the tribunal considers to be honestly given, then that [is] likely to be a full answer to any discrimination claim."

22. Taking that two-stage approach, the Tribunal then addressed the first stage and came to conclusions which are summarised in paragraphs 55 and 56:

"55. At any event we take the view in this case that it could be open to us to draw an inference in discrimination. The applicant is a person from a minority ethnic origin. Her manager, Ms Parsons, her senior manager, Ms MacNiven and the Personnel Manager, Ms Green are all white European. On the basis of the primary facts found by us it seems that it would be open to us to conclude that Ms Parsons resented her authority being challenged by the applicant, by reason of her ethnic origins, and that Ms MacNiven and Ms Green closed ranks against the applicant to support Ms Parsons and to try to compel the applicant to "toe the line".

56. We make it clear of course that that is not a definitive finding that we make but, it seems to us, that that finding which, in the absence of an adequate explanation, we could have arrived at."

23. From that finding the Tribunal then moved to consider what Mr Leiper helpfully describes as "the transferred burden" which called for explanations from the Respondents. It accepted explanations in respect of four matters (reasons para 58) as explaining "in part" the Respondents' actions, but then went on to say as follows:

"60 What however the respondents have not explained to us, and indeed in part have not even tried to explain to us, is why they adopted the confrontational and inflexible approach that they did. Ms Green could give no explanation for the confrontational tone of her memorandum of 31 May when she suggested that the applicant would be in breach of contract. She could give no adequate explanation for why she did not proactively question or investigate the allegation of victimisation and harassment. She could give no explanation for why it was thought appropriate to transfer the applicant in advance of any disciplinary proceedings without any consultation at all. She could not explain why such a confrontational approach was adopted with Mr Dawes, who may well have been able to resist the respondents, given the opportunity. Ms Green of course was not acting on her own, she was clearly consulting with Ms Parsons and Ms MacNiven.

61. We are therefore driven to the conclusion that the respondents have not adequately explained the totality of their actions and have not therefore proved on the balance of probabilities that the treatment was in no sense whatsoever on the grounds of the applicant's race."

24. It found the three individual Respondents liable for race discrimination and the First Respondent IGEN liable for their actions. It dismissed the IGEN'S statutory defence under section 32 (3).

The Respondents' Case

25. In a careful argument Mr Leiper contends that this appeal is the first under section 54A of the Race Relations Act 1976. We pointed out to him that there are presently two full hearings pending under this jurisdiction, and there has been one full hearing, judgment pending, under the parallel provision, section 63A of the Sex Discrimination Act 1975. In all of these an argument has been addressed relating to the correctness of certain aspects of the guidance given by the EAT in Barton. Nevertheless, neither in the Notice of Appeal, the Skeleton Argument, nor oral argument does Mr Leiper on behalf of the Respondents raise similar contentions. Instead, the essential complaint is that the Tribunal in paragraph 55 did not either find or sufficiently explain the "primary facts" upon which it based its decision that the Applicant had satisfied it as to the initial burden of proof, and moved to the transferred burden.
26. Secondly, while acknowledging that the Tribunal found in favour of the Respondents on many of the explanations they gave, its finding against them in paragraph 60 was on a matter which had not been identified by the Tribunal and upon which the Respondents had been given no opportunity to tender explanations. Thirdly, the Tribunal did not consider all potentially relevant explanations including the Applicant's intransigent stance, the evidence that the Respondents acted in the same way towards other employees, irrespective of their race, and that there was no attempt to identify a hypothetical comparator. The Tribunal is criticised for making no finding that the Respondents were actuated by unconscious discrimination, although that appears to be its inference.
27. There is no separate appeal by IGEN against the finding under section 32 (3).

The Applicant's Submissions

28. On behalf of the Applicant Mr Dawes seeks to uphold the decision of the Tribunal by a Respondent's Answer. He contends the Tribunal correctly applied The Law Society and Barton on section 54A, the burden of proof.

The Legal Principles

29. We take the legal principles to be applied in this case from the following authorities. What were described as undisputed principles in The Law Society were summarised by Elias J as follows:

"81 First, the onus lies on the claimant to establish discrimination in accordance with the normal standard of proof.

82 Second, the discrimination need not be conscious; some- times a person may discriminate on these grounds as a result of inbuilt and unrecognised prejudice of which he or she is unaware.

83 Third, the discriminatory reason for the conduct need not be the sole or even the principal reason for the discrimination; it is enough that it is a contributing cause in the sense of a 'significant influence': see Lord Nicholls in Nagarajan v London Regional Transport [1999] IRLR 572 at 576.

84 Fourth, in determining whether there has been direct discrimination, it is necessary in all save the most obvious cases for the tribunal to discover what was in the mind of the alleged discriminator. Since there will generally be no direct evidence on this point, the tribunal will have to make appropriate inferences from the primary facts which it finds. These points are succinctly made in the following passage of the judgment of Lord Nicholls in Nagarajan (p.575):

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

Similar observations were made by Lord Browne-Wilkinson (p.574). The observations of Lord Nicholls were adopted and followed by Lord Rodger in Shamoon v Chief Constable of the RUC [2003] IRLR 285 at paragraph 134.

85 Fifth, in deciding whether there is discrimination, the tribunal must consider the totality of the facts; see the observations of Mummery J giving the judgment of the EAT in Qureshi v Victoria University of Manchester [2001] ICR 863, which were followed by the Court of Appeal in Anya v University of Oxford [2001] EWCA Civ 405; [2001] IRLR 377. Where there is a finding of less favourable treatment, a tribunal may infer that discrimination was on the proscribed grounds if there is no explanation for the treatment or if the explanation proffered is rejected: see the comments of Neill LJ in King v Great Britain-China Centre [1991] IRLR 513, approved by the House of Lords in Glasgow City Council v Zafar [19981 IRLR 36 (Neill LJ in fact said that the inference may be made where the explanation was inadequate or unsatisfactory, but it is in our view clear, and in accordance with the principle in Zafar , which we consider below, that he was envisaging an explanation which was inadequate or unsatisfactory in the sense that the tribunal did not accept it as genuine, not in the sense that it was a genuine, non-racial explanation, albeit that it was unreasonable because it resulted in unreasonable treatment.)

86 Sixth, it is clear from the structure of the statutory provisions that the need to identify a detriment is in addition to finding less favourable treatment on the prohibited ground. In many cases the detriment will be obvious, such as where someone alleges that he or she has been refused a job or promotion for unlawfully discriminatory reasons. Indeed, in most cases the fact that there is less favourable treatment will strongly suggest that there is a detriment. However, this does not necessarily follow, and indeed the more a course of conduct is broken down into a series of discrete elements (as in this case), each of which is alleged to be discriminatory, the more likely it is that a tribunal will properly be able to conclude that certain elements of the overall conduct, even if discriminatory, are so minor or insignificant as not to give rise to any detriment."

30. Unreasonable conduct in itself is not sufficient to justify a finding of discrimination, but the EAT said as follows:

"96. … We do, however, respectfully accept that Sedley LJ was right to say that racial bias may be inferred if there is no explanation for the unreasonable behaviour… Nor in our view can Sedley LJ be taken to be saying that the employer can only establish a proper explanation if he shows that in fact he behaves equally badly to members of all minority groups. The fact that he does so will be one way of rebutting the inference of unlawful discrimination…

…

101. The significance of the fact that the treatment is unreasonable is that a tribunal will more readily in practice reject the explanation given than it would it the treatment were reasonable. In short, it goes to credibility…"

The references to Sedley LJ are to his judgment in Anya v Oxford University [2001] IRLR 377 (CA).

31. Authoritative constructions of one anti-discrimination measure may be applied to another: Rhys-Harper v Relaxion Plc [2003] ICR 867 (HL).
32. The decision in The Law Society at the Employment Tribunal preceded the transposition of the European Directive on the burden of proof into the Sex Discrimination Act 1975 and the Race Relations Act 1976. The authoritative interpretation of its application was given in Barton as follows:

"25 We therefore consider it necessary to set out fresh guidance in the light of the statutory changes:

(1) Pursuant to s.63A of the Sex Discrimination Act 1975, it is for the applicant who complains of sex discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondents have committed an act of discrimination against the applicant which is unlawful by virtue of Part II or which by virtue of s.41 or 42 SDA is to be treated as having been committed against the applicant. These are referred to below as 'such facts'.

…

(12) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice."

33. To those guidelines must be added an important rider provided in The University of Huddersfield v Wolff (EAT/0596/02) Burton P:

"26 The right course, therefore, for the Tribunal, had it set out at first to find material facts, but in any event even though it did not quite follow that format, would be to address section 63A and, in particular, to conclude that the burden moves where the applicant has proved facts from which inferences could be drawn that the Respondents have treated the Applicant less favourably on the grounds of sex. It must therefore arrive at a conclusion that there is a prima facie case that the respondent has treated the applicant less favourably on the grounds of sex. Once it has done that, then it passes to consider the respondent's explanations; it must, if it has not already done so, make findings of fact, or draw inferences from findings of fact, for the purposes of concluding whether any of the explanations put forward by the Respondent satisfy them, the burden being on the Respondent to show that the less favourable treatment was not on the grounds of sex."

34. Until it is overturned, Barton remains good law. It was apparently before the Court of Appeal when that court gave judgment in Nelson v Carillion Services Ltd [2003] ICR 1256, although it is not cited in its judgment handed down on April 15 2003. That is because in Pratt v Sanden International (Europe) Ltd (EAT/0529/02) at paragraph 19 His Honour Judge Serota QC said:

"We are told that the Court of Appeal was referred to a copy of the judgment in Barton -v Investec, but no reference to it was made in the decision."

35. In Nelson v Carillion Simon Brown LJ, with whom Dyson and Scott Baker LJJ agreed, said as follows:

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

36. No point is taken that this case was about indirect discrimination for the principles appear to apply equally to direct discrimination.
37. In Cunningham v Quedos Ltd (UKEAT/0298/03) the EAT followed and applied Barton and Huddersfield.
38. An Employment Tribunal is required to give sufficient reasons for its decision: Meek v City of Birmingham District Council [1987] IRLR 250.

Conclusions

39. We treat with some caution guidance number (10) in Barton, that an employer must prove that there was "no discrimination whatsoever", for it has been held by Burton P that this is arguably wrong in law. But this case does not depend upon that, nor has it been argued on that basis.
40. We will deal first with the contention that the Tribunal erred in holding that the Applicant had proved sufficient facts for the purposes of discharging the initial burden upon her. The source of the complaint is paragraph 55, cited above. We set out the grounds as follows:

"18. If the only reason relied upon by the Tribunal was "the unreasonable actions of the Respondents" (ER S54 [15]) and a difference in race (ER S55 [15]) then these are inadequate findings from which the Tribunal could reach the conclusions suggested in paragraph 55. From the 'unreasonable actions', the Tribunal suggests that it could have been inferred that:

(a) Ms Parsons resented her authority being challenged by A; and

(b) The reason for that resentment was A's ethnic origins; and

(c) Ms MacNiven and Ms Green closed ranks against A to support Ms Parsons and to try to compel A to toe the line.

19. The second of these, in particular, is an inference drawn from an inference. The Tribunal simply goes too far into the realms of speculation from the limited facts found by it."

41. It must be borne in mind that as early as 19 April 2002 the Applicant had alleged discrimination and victimisation. Although at a directions hearing on the telephone on 15 January 2002 the Applicant's claim in her Originating Application of victimisation was not be to pursued, for it was held not to bear the technical meaning ascribed to it under the Race Relations Act 1976, there is no finding in relation to the Applicant's claim of discrimination as being outside of the Act.
42. Her written complaint alleging victimisation, cited from paragraph 20, is not cited in full, for it includes a claim of discrimination. The Tribunal twice refers to the Applicant making claims of discrimination against her manager. Given that the Applicant is of Afro-Caribbean origin, that her managers are all white European and she complained of discrimination, the Employment Tribunal had a basis upon which it could hold that it was open to it to find that action taken against the Applicant was "by reason of her ethnic origins". The essential basis for this finding was that Ms Parsons resented the challenge made by the Applicant to Ms Parsons' authority and that Ms MacNiven and Ms Green closed ranks to support Ms Parsons and compelled the Applicant to "toe the line".
43. It seems to us those two latter conclusions are open to the Tribunal on the basis of the primary findings which we have recorded above. These deal with Ms Parsons' "frustration", the action of Ms Parsons and Ms MacNiven in inflaming the situation and of their joint view that the Applicant was being critical of her manager causing them to break up a meeting. Ms Green and Ms MacNiven were party to transferring the Applicant to other duties. Ms Parsons was supported by her manager. Ms Green was unable to supply an explanation. Ms Green attended on 31 May in order to support Ms MacNiven. Thereafter "the pressure was then increased on 5 June".
44. Given that the Tribunal had referred in paragraph 55 to having already found those primary facts and that the Respondents behaved unreasonably, paragraph 55 indicates the Tribunal's correct reflection that there was sufficient material for the Applicant to have made out a prima facie case.
45. We reject the contention that the Tribunal has moved from inference to inference, for there is sufficient finding of primary fact in: the Applicant's internal claim of discrimination, a challenge to Ms Parsons' authority, closing ranks by Ms MacNiven and Ms Green, pressure on the Applicant, different ethnic backgrounds and unreasonable conduct. Quite properly, the Tribunal was not required at that stage to make its decision, but recognised that the burden of proof transferred to the Respondents.
46. The Respondents naturally make no criticism of the Tribunal when it finds in their favour on explanations they gave. As to paragraph 60 there are ample findings by the Tribunal that Ms Green took a confrontational approach. The memorandum and calling of disciplinary meetings speak for themselves. It is correct to say that they are confrontational in tone. Her conduct was confrontational and unreasonable. The decision is replete with criticism of this approach.
47. We accept from the documents, the findings and from Mr Dawes that this criticism was at the heart of the case, for questions were asked by him and by the Tribunal Chairman. No attempt has been made to produce the notes of evidence. We reject the contention that this matter was not disputed. The Tribunal, as a matter of assessment of an explanation was entitled to hold that no explanation had been given for Ms Green's confrontational tone. It follows that the Tribunal criticised the failure to investigate the allegation of victimisation and harassment in ways other than that decided by Ms Green. It also follows from paragraph 43 of the Tribunal's reasons that no explanation was given as to why, in advance of disciplinary proceedings, a transfer was instituted. Nor was any explanation given as to why a confrontational approach was adopted towards Mr Dawes, an experienced trade union officer.
48. In respect of all those matters, the Tribunal had an ample basis to hold as it did that Ms Green was acting together with Ms MacNiven and Ms Parsons. The decision to transfer was taken by Ms MacNiven and reported by Ms Green. Ms Parsons was held to be frustrated by the Applicant's actions and was plainly irritated, for she and Ms MacNiven conducted themselves in an inflammatory way (para 43). We further hold that the Employment Tribunal did not commit the error of finding unlawful discrimination simply because the Respondents had been unreasonable. It was alert to that distinction.
49. We turn now to the Respondent's criticism that two other explanations had not been canvassed by the Employment Tribunal in its reasons. First, it cannot be said the Tribunal did not consider the Applicant's uncooperative stance adopted by herself and her representative, for it mentions it twice (paras 22, 46). The weight to be given to such matters in balancing the explanations given by the Respondents was a matter for the Employment Tribunal and cannot be interfered with.
50. Secondly, as to the failure by the Employment Tribunal to take account of the statements produced by the Applicant, this relates to a statement by David Allen to the effect that Ms Parsons was curt and did not encourage staff in a positive way, making staff feel small and insignificant; and that Ms Green was unsympathetic to him when he was ill. Mr Allen and other persons who made statements were not called as live witnesses.
51. We accept the affidavit evidence before us of Ms Johns the solicitor who conducted the case for the Respondent that these documents were put into the Tribunal by the Applicant but, the Chairman having considered the matter during a break in the proceedings, considered them not to be relevant. Given the way in which they were put forward, we can understand that approach. It is further understandable since the Respondents did not put this evidence forward and did not rely on what was memorably described by Burton P in University of Huddersfield v Wolff as the "duff employer syndrome" (at para 30), i.e. that the Respondents were equally obtuse to employees regardless of their race. It is, in any event, a very small item of "evidence" and, as against the direct material available to the Tribunal from the Respondents themselves who did not advance this duff employer case, its assessment of its worth was a matter for it. Even if strictly it could be regarded as relevant, we think the Tribunal was regarding it as insignificant.
52. In short, the Tribunal was not dealing with simply "a credible suggestion" (as in Nelson v Carillion) when it considered whether the Applicant had discharged the burden of proof upon her. It operated correctly on the basis of primary findings of fact.
53. It is acknowledged by Mr Leiper on authority (see The Law Society at paragraph 116) that there is no obligation to construct a hypothetical comparator in every case. It is evident to us that the Tribunal was comparing the Applicant's treatment in direct discrimination with that of a person who was not of her Afro-Caribbean origins. It committed no error.
54. Finally, we reject the contention that the Tribunal has erred in failing to state whether the Respondents' actions were conscious or subconscious. It is contended that the inference must be that the finding was that they were subconscious. It was not contended otherwise by Mr Dawes. But we cannot see how that submission helps the Respondents, except to make the criticism of their unlawful conduct less condign for being without direct design. Subconscious racial discrimination is unlawful.
55. We would like to thank both Mr Leiper and Mr Dawes for their helpful submissions. The appeal is dismissed.