United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR AKHLAQ CHOUDHURY (Of Counsel) Appearing under The Free Representation Unit
For the Respondent	MR J AUBURN (Of Counsel) Instructed by: Office of the Solicitor Department of Health New Court (Room 539) 48 Carey Street London WC2A 2LS

SUMMARY

The decision of the ET that the Claimant did not suffer victimisation and wrongful deduction from deduction from wages was a decision the ET was entitled to make on the facts.

Although the ET should not have had regard to the Claimant's means when making an order for costs against him, the decision was justified on the facts, and his lack of means was taken into account in his favour and resulted in a lesser award than would otherwise have been made.


 


HIS HONOUR JUDGE D SEROTA QC

Introduction

1. This is an appeal by the Claimant, as we shall call him, Mr B Esan, from a decision of the Employment Tribunal at London South (Mrs F J Silverman, Chairman). The Decision was entered on to the Register on 21 December 2003, after a hearing lasting three days.
2. The appeal came before his Honour Judge McMullen QC on 9 January 2004 under the 'sift'. His Honour Judge McMullen QC stayed the proceedings pending service of an Affidavit from the Claimant in relation to allegations of bias contained in his original Notice of Appeal. The case was returned to the sift and his Honour Judge McMullen QC referred it for a Preliminary Hearing. The Preliminary Hearing came before Cox J on 17 July 2004. On that occasion the Claimant had the good fortune to be represented by Mr Akhlaq Chaudhury under the ELAAS Scheme. Cox J having heard Mr Chaudhury's submissions and on the basis that an amended Notice of Appeal would be filed in place of the rather rambling Notice of Appeal prepared by the Claimant in person, directed that certain matters only should go to a Full Hearing. These grounds of appeal raised issues as to the correctness of the Decision of the Employment Tribunal (a) that there had been no victimisation of the Claimant on the grounds of his race (b) the Respondent had not underpaid the Claimant's salary (c) the Claimant should not have been ordered to pay £1,000.00 as a contribution to the Respondent's costs.
3. The matter came before us on 2 November 2004 but it was adjourned so that the Claimant could be represented by Mr Chaudhury. We understand that Mr Chaudhury has represented the Claimant pro bono. We wish to express our appreciation to Mr Chaudhury for the care and skill with which he has conducted this appeal.

Factual Background

4. The Respondent is a government agency and as its name suggests it is responsible for control over medicines. The Claimant is of black African ethnicity. He joined the Respondent on 22 January 2001 at Grade 1P2S. On 1 July 2001 he was temporarily promoted to section manager with Grade 1P2S with a temporary pay rise. In April 2002 the Claimant ceased to cover the temporary post and returned to his original post and grade. At a time when the Claimant was acting up, the new post of project manager was advertised. The grade was UP2U (which was higher than UP2S). The Claimant applied for the job but was unsuccessful in his application. He took proceedings against the Respondent in the Employment Tribunal on the basis he had been discriminated against on the grounds of his race. His application failed.
5. On 22 March 2002 the Claimant was away from work certificated as sick until 7 May 2002. He then went on leave between 13–29 May. He was also absent from work between 5-7 June and was again certificated sick from 17 June 2002 until early November. He appeared, however, to have been able to conduct the proceedings in the Employment Tribunal to which we have referred. In July 2002 he sought a transfer from the department in which he worked. At the time he was absent from work as he was sick but he never withdrew that request.
6. In August 2002 after having made a complaint and having discovered he was underpaid while acting up he received the payment to which he was entitled together with a letter of explanation. On 14 October 2002 he filed a complaint and an internal grievance. In November 2002 when his entitlement to full sick pay was about to expire the Claimant said he would return to work the following day. The Respondent felt he should take a few days special leave on full pay pending arrangements for his return.
7. On 12 November 2002 the Claimant met Ms Billan the Respondent's Human Resources Manager and various employment options were discussed. There were two available posts one of which involved working with Mr Whitbread and Dr Nicholson. The Claimant did not want to have contact with either of these gentlemen who had been involved in his earlier proceedings. The other vacancy was involved with data entry. He undertook this job for one day and then said it was unsuitable. He did not avail himself of the opportunity to apply for other jobs within the agency or in other departments of the civil service.
8. The Claimant would have been entitled to an appraisal for the year 2002 but he had been absent sick for much of the year and never asked for an appraisal while he was on sick leave. Neither did he respond to his line manager's attempts to initiate the appraisal process during his short attendance in June. The Respondent considered it was unfair to complete an appraisal without the Claimant's comments. He issued his proceedings on 16 October 2002 while still employed. Indeed at the time of the appeal he remained in the employment of the Respondent.
9. At the Employment Tribunal the Claimant represented himself. His claims were elaborated upon by two somewhat lengthy sets of Further and Better Particulars. The Chairman, Ms C E Taylor at a directions hearing and by agreement between the Claimant and the Respondent's Counsel refined the issues as follows. (i) was the Claimant unlawfully victimised by reason of his race by not receiving an appraisal for the period ending April 2002 (ii) was the Applicant unlawfully victimised on the grounds of his race by reason of the circumstances of his transfer to a new position in November 2002 (iii) was the Claimant unlawfully paid less than the contractual rate during the period in 2002 when he 'acted-up'. The Chairman noted in the Order sent to the parties on 8 August 2003:

"For the avoidance of doubt no claim other than those set out in this Order arises in these proceedings."

We note that the Claimant maintained that the protected act was the bringing of his earlier unsuccessful proceedings in the Employment Tribunal. This issue was not controversial.

The Decision of the Employment Tribunal

10. The Employment Tribunal identified the issues at the very beginning of its Decision:

"2. The Applicant brought a claim for unlawful victimisation on the grounds of his race and also that he had not received an appropriate salary during a period when he had been temporarily promoted. The Applicant classified this latter claim as equal pay but in essence it was a claim for unlawful deduction of wages.

3. The issues to be determined by the Tribunal were set out in an order of the Tribunal dated 8 August 2003 following a case management discussion and are as follows:

(1) Victimisation on the grounds of race by

(a) the Respondent's failure to provide an appraisal for the period ending April 2002.

and (b) the circumstances of the Applicant's transfer to. a new position in November 2002.

and (c) failure to pay the Applicant the appropriate salary during his temporary promotion."

Paragraph 3 of the Decision has been poorly proof read. On a superficial reading it may give the impression that the issue 1(c) 'failure to pay the Applicant the appropriate salary during his temporary promotion' was a particular of an allegation that the Claimant had suffered victimisation on the grounds of race. It is clear, however, from the Order of 8 August 2003 that what was described as the 'equal pay claim' was a simple contractual claim:

"The Applicant complained that he had 'acted-up' during the year 2002 and during that period he did not receive the appropriate allowance. The Respondent has agreed that it will attempt to resolve this matter amicably; it is satisfied that the Applicant was paid on the appropriate scale rates of pay and that this can really be demonstrated to the Applicant. The Applicant has agreed to co-operate in attempting to resolve this matter has agreed to notify the Tribunal within 21 days of this Order whether the complaints arising under this head of claim are withdrawn. If the complaints are not withdrawn such further direction will be made as appear necessary."

11. It is also apparent from paragraph 2 of the Decision of the Employment Tribunal that the so-called equal pay claim was not a claim for unlawful victimisation. The Employment Tribunal correctly held that:

"In essence it was a claim for unlawful deduction of wages."

12. The Employment Tribunal set out with considerable care the facts that we have briefly summarised above. The Employment Tribunal directed itself by reference to Section 1(1) of the Race Relations Act 1976 in relation to discrimination and by reference to Section (2)(1) relating to victimisation.
13. The Employment Tribunal then came to certain conclusions. In relation to the Claimant's appraisal the Employment Tribunal concluded that this was a two way procedure which normally required the co-operation of both employer and employee. The Tribunal concluded that the Respondent felt it would be unfair to the Claimant to complete an appraisal without his own comments and had sought to initiate the process during the short period of his attendance in June but the Claimant had failed to respond to this approach. The Tribunal concluded that as the Respondent could not complete the appraisal it completed an internal form (391) which allowed the Claimant to receive a pay rise despite there having been no appraisal, so he had suffered no financial loss. Further, there was no prejudice within the civil service as the absence of an appraisal could be met by a report from his line managers. The Claimant suffered no detriment and had neither enquired after nor sought other jobs. The Employment Tribunal accepted the Respondent's explanation that the reason for the lack of appraisal was because it had been impossible to complete because of the Claimant's absence. He had further suffered no detriment as a result of the lack of appraisal. This part of the claim was, therefore, unproven and rejected.
14. The Employment Tribunal then went on to consider whether the Claimant had been victimised by reason of the circumstances of his transfer. It made the following findings. As we have noted already the Claimant had applied for a transfer but this was not considered by reason of the fact that he was off sick; there was no element of discrimination in the delay in consideration of his request. The Claimant had been asked to explain the reason for his transfer. He refused to explain his reasons because he said they were the subject of the application to the Employment Tribunal. That application had been lodged some time previously and the details were already in the public domain. When he was transferred the Claimant claimed that he had been transferred against his will. The Employment Tribunal considered that this complaint was incompatible with his earlier contention. His transfer request had not been dealt with. Following conclusion of the earlier proceedings in the Employment Tribunal the Employment Tribunal found that the Respondent considered it was unsuitable for the Claimant to return to work in a department among those against whom he had made allegations of discrimination. So an alternative position was sought for him. He was offered the only available post away from those involved in the earlier proceedings. Although he complained about the suitability of the position he remained working in his new position and had not sought a transfer. The Employment Tribunal concluded at paragraph 29:

"29. Since the Applicant had requested a transfer in June and had never indicated that he was withdrawing that request and in the light of the subsequent Tribunal proceedings, the Tribunal considers it fair and reasonable for the Respondent to seek to place the Applicant temporarily in a different department on his return from long term sick leave. The Tribunal does not view this as a discriminatory act against the Applicant, either on the grounds of race or otherwise. This part of his claim fails and is dismissed."

The Money Issue

15. As we have already noted the Employment Tribunal treated the Claimant's claim in relation to underpayment of salary as a claim for unlawful deduction. The Employment Tribunal found that it was for the Claimant to prove the underpayment and not for the Respondent to disprove it. He had brought no evidence to demonstrate any financial loss under this part of the claim. He also failed to accept the pay rise he had received when acting-up (approximately ten per cent) was not as of right but was discretionary. The Employment Tribunal noted on at least one occasion he had been overpaid and the Respondent had not sought to recover the payment. The Employment Tribunal concluded:

"37. We are satisfied that the Applicant was paid at the correct grade and that previous errors in his pay had long been corrected he had suffered no detriment or underpayment of his salary. This part of his claim therefore fails and is dismissed."

16. We should also point out that during the course of the hearing the Claimant maintained that the Respondent's Counsel, Mr Auburn had intimidated him during the Tribunal break by threatening to seek an Order for Costs if the Claimant did not withdraw his case. The Tribunal heard evidence from both the Claimant and Mr Auburn and were satisfied that the correct version of events was that Mr Auburn, acting on instructions from his solicitor, approached the Claimant with an offer of settlement which he rejected. The Tribunal concluded that the Claimant's version of events was distorted and elaborated and designed to show the Respondent in a poor light. It concluded that he had used the incident to his own ends.

Costs

17. The Employment Tribunal considered that the Claimant was not wholly ignorant of Employment Tribunal procedures. He was also a member of a trade union and had received legal advice from the CAB. He had failed to clarify the details of his claim, and included a number of spurious allegations and claims which the Tribunal had no jurisdiction to entertain and had failed to address the issues in the case despite the directions hearings and clear direction from the Chairman. The Claimant was warned about the possibility of a costs application both by the Respondent and by the Tribunal. The Employment Tribunal noted that even during his closing submissions the Claimant had attempted to address new issues. The Claimant's approach made it very difficult for the Respondent to prepare its case. Although their overall costs were some £10,000.00 in the light of the Claimant's salary the Respondent intimated it would only seek a nominal sum. The Employment Tribunal concluded, taking into account the Claimant's response and means that it was appropriate pursuant to the powers given to them by Regulation 14 of the Tribunal Rules and Procedures that he should pay a contribution of £1,000.00 towards the Respondent's costs. The Tribunal considered that the Claimant's claim was unfounded and his conduct in pursuing the claim and various other issues in contravention of an Order of the Tribunal was unreasonable. The Employment Tribunal was not satisfied there was evidence of delay on the Respondent's part in providing documents or complying with the Tribunal Orders for directions whereas there was considerable evidence the Claimant had failed to comply and thereby caused unnecessary delay and expense to both the Tribunal and the Respondent. Further, he had caused delay at the commencement of the hearing because, despite clear instructions from the Tribunal, he had failed to prepare an adequate number of copies of his statement for the hearing with the result that the commencement of the hearing was delayed by over an hour.

Submissions

18. Mr Chaudhury made a general submission to the effect that although a reverse burden of proof had been brought into effect by Section 54(a) of the Race Relations Act, no mention was made of this by the Employment Tribunal and it may have misapplied the burden of proof because in paragraph 11 what the Employment Tribunal had to say was this:

"11. In relation to discrimination it is the Applicant's task to prove his case."

Submission on Transfer

19. A point was taken at the outset by the Respondent that the Employment Tribunal had no jurisdiction to entertain any claim in relation to transfer because the transfer in November 2002 took place after he had made his application in October. Mr Auburn told us that when in July 2003 the Chairman had sought to get the parties to agree on issues he did not spot the jurisdiction point. However, he took the point before the Employment Tribunal in his submissions and the Employment Tribunal has not ruled upon it. Further, the issue was raised in his Respondent's notice and is a point that goes to the very jurisdiction of the Tribunal.
20. In response to this Mr Chaudhury submitted, that if there was a jurisdictional issue it had been dealt with in the Order of the Employment Tribunal on 29 July 2003 and had been decided in favour of the Claimant. There had been a de facto application by the Claimant that the transfer claim should be treated as a new claim and the application by implication included an application to extend time on the basis that it was just and equitable to do so. By this time the Claimant had submitted Further and Better Particulars. Mr Chaudhury also submits that the point should have been raised by way of cross appeal and was not raised at the Preliminary Hearing.

Transfer, Merits

21. We now turn to consider the submission on the merits of the transfer issue.
22. Mr Chaudhury submitted the Employment Tribunal failed to apply the correct test as to whether a transfer in the circumstances amounted to less favourable treatment. He submitted the Employment Tribunal should have asked itself, in accordance with the Decision in Lindsay v Alliance & Leicester Building Society [2000] ICR 1234 (i) whether by reference to an appropriate comparator the Claimant had suffered less favourable treatment (ii) if so, whether the less favourable treatment was by reason of his having done a protected act.
23. The comparator would be someone who had not brought proceedings. He drew attention to the Respondent's own complaints handling procedures and submitted that the Employment Tribunal had failed to establish any comparator.
24. The Employment Tribunal's conclusion (in paragraph 29) that it had been fair and reasonable for the Respondent to seek to place the Claimant temporarily in a different department showed it had not applied the correct test for victimisation in relation to which fairness and reasonableness were irrelevant . What was in issue was whether there had been less favourable treatment by reason of a protected act. Mr Chaudhury submitted that it appeared as though the Employment Tribunal were treating the matter as one of discrimination under Section 1(1) of the Act.
25. Mr Chaudhury went on to submit that because the Respondent transferred the complainant so that he should not be with people accused by him of discrimination, it was clear that he was transferred by reason of his having done a protected act. He was moved because of his complaint; that amounted to victimisation. The fact that he had sought a transfer was irrelevant. Further, the Employment Tribunal did not seem to have made any finding as to detriment. There was no comparative exercise in relation to less favourable treatment conducted by the Employment Tribunal.
26. Mr Chaudhury submitted that a comparator would not have been transferred having regard to the Respondent's own procedures which provided that where an employee had made a complaint, and it was considered that he should be separated from those against whom the complaint was made, they would generally not move the complainant so it would have been quite exceptional to have moved the Claimant. The Claimant's earlier request for a transfer was irrelevant and had been made some time ago.

Transfer, Respondent's Submissions

27. Mr Auburn submits, having regard to the finding of the Employment Tribunal at paragraphs 9.14-9.17 that the Claimant failed to prove facts from which in the absence of an adequate act of explanation an act of discrimination (victimisation) had occurred. Alternatively, the Employment Tribunal were satisfied that the reason for the move was that the Claimant had asked to be transferred. There was no detriment in any event. The Respondent sought to rely upon the Claimant's evidence before the Employment Tribunal. The Claimant's evidence had been that he assumed that he would go back to the same job when he returned from absence but he did not wish to do so and he would have complained had he been put back in his old job. After six months sick leave he could not reasonably expect to have been placed in the same post. Mr Auburn drew our attention to the decision of the House of Lords in Chief Constable of West Yorkshire Police v Khan and the decision of Lindsay v Alliance & Leicester PLC. He submitted these cases were authority for the proposition that it was necessary, if a claim of victimisation were to succeed, that the Employment Tribunal should find that there was both less favourable treatment and also that the reason for the unfavourable treatment was that the Claimant had done a protected act. It would be an unfair characterisation of the decision of the Employment Tribunal as a whole to say that he it had applied a "fair and reasonable" test in considering the reason for Mr Esan's transfer. The move was a temporary arrangement made at short notice when the Claimant returned to work having given the most limited notice of his intention to do so. He had made little or no attempt to find another post to which he could move. His career prospects and pay were in no way disadvantaged and after the transfer he made no attempt to move out of his temporary post.

Underpayment of Salary

Claimant's Submissions

28. Mr Chaudhury submitted that notwithstanding the Order of 29 July there had never been an agreement that the Claimant would limit his claim in respect of underpayment of salary to unlawful deductions. Accordingly, Mr Chaudhury submitted, the Employment Tribunal was wrong to limit its analysis to unlawful deduction and should have considered the victimisation issue which had never been withdrawn. He also submitted the Employment Tribunal were wrong to find that the ten per cent uplift was discretionary when the evidence suggested it was not. It was an uplift to which the Claimant was entitled and the uplift was not discretionary. He drew our attention to the Respondent's Standard Operational Procedure ("SOP") for dealing with pay increases.

Underpayment

Respondent's Submissions

29. The Respondent submitted that the Employment Tribunal clearly decided with agreement of all parties on 29 July, that the claim should be treated as one of wrongful deduction. He submitted that it is clear from paragraph 2 of the Decision of the Employment Tribunal and the fact that the Employment Tribunal attempted to set out the directions order of the Employment Tribunal in the Order of 8 August 2003 that it was agreed by all parties and directed by the Employment Tribunal to be a claim for unlawful deduction and not one of victimisation. Mr Auburn also drew our attention to paragraph 30 of the Decision which again makes clear how the Claimant was putting his case before the Employment Tribunal:

"30. …The Applicant stated that his claim was for equal pay, that he brought no evidence to support that claim and agreed at the commencement of the hearing that in essence his complaint was that he had not received the correct salary for his grade when he had been acting up as a Section Manager. In the light of the Applicant's concession we have therefore treated this element of his claim as a claim for unlawful deduction from wages under S13 Employment Rights Act 1996."

30. There is absolutely nothing, submits Mr Auburn, in the decision of the Employment Tribunal, that the Claimant pursued his claim in relation to underpayment of salary before them as a victimisation claim. Mr Auburn submitted that in view of the confusion caused by the way the Claimant had put the case in his IT1 and Further and Better Particulars there was a degree of confusion and it was entirely appropriate for the Employment Tribunal to seek to identify the issues as it did in its Order of 8 August 2003. It may be, submitted Mr Auburn, that although one might find that this aspect of the case was put as a victimisation claim in the initial pleadings, the Claimant should not be permitted to take advantage of a confusion that was of his own making.
31. In relation to the merits of the claim that the Employment Tribunal was wrong to find he had not been overpaid, Mr Auburn draws attention to the findings of the Employment Tribunal at paragraph 37. It was irrelevant whether the ten per cent increase in salary was viewed as discretionary or not as the Employment Tribunal concluded as a matter of fact that he did get the additional ten per cent increase.

The Appraisal Issue

The Claimant's Submissions

32. On behalf of the Claimant it was submitted that the failure to give him an appraisal was a detriment because it affected his ability to apply for external positions. The Employment Tribunal failed to identify a comparator and notwithstanding that the reverse burden of proof had come into effect in July it was not referred to by the Employment Tribunal.

The Respondent's Submissions

33. On behalf of the Respondent it was submitted that there was a conflict of evidence resolved at paragraph 20 of the Decision of the Employment Tribunal in favour the Respondent. The Claimant had maintained that without an appraisal he could not apply for other jobs whereas the Respondent's evidence, accepted by the Employment Tribunal, was to the contrary. In any event the Employment Tribunal concluded as we have already noted, that the Claimant took no steps to enquire about how to apply for jobs without a current appraisal. There was no evidence he took any steps to apply for other positions within or outside the Respondent. The Employment Tribunal was satisfied that he had suffered no detriment. His pay remained the same and there was a perfectly good reason why no appraisal was completed. The evidence showed that the decision not to appraise was not in response to his earlier proceedings. He had been off sick for many months so no appraisal could be carried out within the few days he had returned to work. So far as the absence of a comparator was concerned, if this were relevant, it was submitted by Mr Auburn that this particular claim is not referred to in the Claimant's IT1 and arose out of Further and Better Particulars.

Costs

The Applicant's Case

34. It was submitted on behalf of the Claimant that the Employment Tribunal had misapplied its power and had awarded costs on the basis that the claim was unfounded rather than on the basis that the Employment Tribunal was satisfied in the language of Regulation 14 of the Employment Tribunals (Constitution etc) Regulations 2001 that the Claimant had in bringing the proceedings or in conducting the proceedings acted vexatiously, abusively, disruptively or otherwise unreasonably or that the bringing or conducting of the proceedings had been misconceived.
35. It was also submitted that the Employment Tribunal was wrong, in the light of the decision in Kovacs v Queen Mary and Westfield College [2002] IRLR 414, CA to have regard to the Claimant's means.
36. Further, the Employment Tribunal had given no reasons why the Claimant's conduct was unreasonable and had failed to allow for the fact that the Claimant was presenting a difficult case in person.

The Respondent's Case

37. The Respondent submitted that the Employment Tribunal applied the correct test and also said that the claim was unfounded. That had nothing to do with the application of the test. The fact that the Employment Tribunal took the Claimant's means into account was something it took account in his favour when it need not have done so. But for that the Employment Tribunal would almost certainly have ordered a more significant amount. The Respondent had put its costs at nearer £10,000.00 but because of the Claimant's modest income had not sought, as it would have been entitled to, to recover its costs in full. The Employment Appeal Tribunal should be slow to interfere with the discretion of the Employment Tribunal.

Conclusions

(a) Transfer: Jurisdiction

38. It is clear that the transfer took place after the commencement of these proceedings and, prima facie the Employment Tribunal lacked jurisdiction to deal with the complaint. We do not see an adequate answer to this point which goes to jurisdiction. No application was ever made to extend time and we are unable to construe the Directions Order of the Employment Tribunal dated 8 August 2003 pursuant to the hearing on 29 July 2003 as either accepting that the Employment Tribunal had jurisdiction to deal with the issue or that that it considered it was just and equitable to extend the time for making application. The issue was clearly raised by the Respondent before the Employment Tribunal which failed to deal with the point, which seems, on the surface at least, to be unanswerable. We do not, however, wish to deal with the matter simply on the basis of jurisdiction and we have also considered carefully the merits of the appeal.

Transfer: Merits

39. It seems to us so far as the merits are concerned that the point is a short one and was disposed of by the Employment Tribunal having regard to the facts that it found. It seems to us impossible to see how the Claimant could assert he had received less favourable treatment by being transferred at his own request. He had said in his evidence that he did not want to return to a post he had been in prior to his illness and had occupied at the time of his previous complaint to the Employment Tribunal. He would have complained had he been put back in that old job. In those circumstances it seems to us that the Employment Tribunal was perfectly entitled to conclude that there was no evidence of any detriment. The Employment Tribunal might have dealt with the matter somewhat more elegantly. However, in its decision as a whole, its findings of fact and conclusions are quite clear.
40. We prefer the Respondent's submissions to those of the Claimant in relation to this issue.

The Money Claim

41. At one time we thought there was something in the Claimant's point that the Employment Tribunal had failed to deal with underpayment of salary as a victimisation issue. However, when one studies the Directions Order it is clear that the claim was to be treated as a claim for unlawful deduction only. There was no appeal against that decision.
42. It seems to us that the decision of the Employment Tribunal has been poorly proof read. It is apparent from paragraph 2 of the Decision that the Employment Tribunal intended to do no more than record the Order made dated 8 August 2003. It simply omitted to make clear that Item (c) (The Pay Issue) was not linked to victimisation but was a free standing claim. It is perhaps significant also that had all three issues been linked to victimisation it would not have been necessary to include that "(1)". It seems to us, far more likely, that it was intended in paragraph 3 of the Order to refer to Items (a) and (b) under heading (1) and to the Pay Issue as Item (2). We can see no reason or explanation as to why the Employment Tribunal at the hearing of this matter should have reversed the Directions Order and deprived the Claimant of his claim for unlawful deductions unless they could be shown to have been an act of victimisation. It seems clear to us that this was not the intention of the Employment Tribunal.
43. We are quite satisfied that the issues as to the merits were essentially issues of fact and we see no basis upon which we can interfere with the finding of the Employment Tribunal that the Claimant received the correct payment.

Appraisal

44. The simple answer to this point is that the Employment Tribunal found there was no detriment. There is, therefore, no need to consider the application of any reverse burden of proof or the position in relation to any comparator. In this regard again we prefer the submissions of the Respondent. We do not see how in the circumstances, on the basis of the findings of the Employment Tribunal, the absence of an appraisal could amount to a detriment because it would not have prevented applications for either internal or external positions, not that the Claimant ever sought to make such applications.
45. Further, the Employment Tribunal found as a fact that the reason why the Claimant did not receive an assessment had nothing to do with his previous proceedings. We refer to the findings in paragraphs 15, 16, 17, 19 and 21 of the Decision. The Employment Tribunal was satisfied that the reason no appraisal was carried out was because of the Claimant's long sick leave and his failure to ask his line manager for an appraisal during that time and his failure to respond to his line manager's attempts to initiate a process.
46. This ground of appeal, therefore, does not succeed.

Costs

47. It is clear that at the time of the hearing before the Employment Tribunal, and prior to the promulgation of the new Employment Tribunal Rules of Procedure, it had been established by Kovacs v Queen Mary and Westfield College [2002] IRLR 414, CA that means, or more particularly lack of means, was irrelevant in considering whether Orders for Costs should be made against a party pursuant to Regulation 14.
48. Despite that authority, which required the Employment Tribunal to consider the application without regard to Mr Esan's lack of means, the Employment Tribunal took his lack of means into account in his favour. Had the Employment Tribunal not taken this course it would almost certainly have made a more substantial award.
49. It seems to us, that it would be quite wrong to over rule the Decision of the Employment Tribunal because it took account of something in Mr Esan's favour it should not have taken account of. Again we prefer the Respondent's submissions in this regard.
50. There was ample justification for the Order on the basis of the findings of the Employment Tribunal; see paragraph 43 of the Decision and we see no basis upon which we can interfere with the exercise of its discretion.
51. We wish to conclude by again expressing our thanks to Mr Chaudhury for his generosity in appearing for the Claimant pro bono and for the very great assistance he gave both the Claimant and to the EAT.