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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Islam v Dunedin Housing Association Ltd [2006] UKEAT 0006_05_0808 (8 August 2006)
URL: http://www.bailii.org/uk/cases/UKEAT/2006/0006_05_0808.html
Cite as: [2006] UKEAT 6_5_808, [2006] UKEAT 0006_05_0808
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EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HF
At the Tribunal
On 22 September 2005 & 8 August 2006
Before
THE HONOURABLE LADY SMITH
MS A MARTIN
MR P PAGLIARI
MRS SHIRLEY ISLAM APPELLANT
(1) DUNEDIN HOUSING ASSOCIATION LTD
(2) MR DAVID RUTHERFORD RESPONDENTS
Transcript of Proceedings
JUDGMENT
APPEARANCES
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For the Appellant |
MR D O’CARROLL Advocate Instructed by: Messrs Thompsons Solicitors 16-18 Castle Street EDINBURGH EH2 3AT
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For the Respondents |
MR I KENNEDY Solicitor The Work Ethic Glebe End 23 Cramond Glebe Road Cramond Village EDINBURGH EH4 6NT
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SUMMARY
Claim for racial discrimination. Tribunal found the claimant to have received less favourable treatment in several respects but found no discrimination. On appeal, claimant, restricting her arguments to only one of a number of grounds of appeal contained in the notice of appeal, sought to have decision set aside as perverse, arguing that the tribunal had not, in their judgment, found that all the less favourable treatment was for non race related reasons. The Employment Appeal Tribunal dismissed the appeal. The test for perversity was not met. The judgment did not fall to be construed in the manner suggested. Observations on the desirability of appellants giving prior notice of any intention to depart from grounds in their notice of appeal.
THE HONOURABLE LADY SMITH
Preliminaries
1. This case concerns a racial discrimination claim in which the claimant was unsuccessful before the Employment Tribunal sitting at Edinburgh, Chairman Mr R MacIver. The claimant was represented there by Mr Peter Hunter of Unison and both respondents were represented by Mr Kennedy, solicitor. Before us, the claimant was represented by My O’Carroll, advocate and the respondents were represented again by Mr Kennedy. We will refer to parties as claimant and first and second respondents.
Introduction
2. The first respondents are a housing association which provides a variety of forms of social housing including hostel provision. The claimant, though born and brought up in Scotland, is of Asian origin. She was employed as a project worker in a hostel for the homeless that they operated in Edinburgh. She began working for them some time in 2000. On 2 March 2003, the claimant resigned from that job. She alleged that she had been constructively dismissed and that she had suffered racial discrimination.
The Facts
3. The second respondent was the manager of the project on which the claimant worked. He was not satisfied with the claimant’s performance of her duties at work in various respects. He was concerned that she lacked judgment following an occasion when she arranged for residents of the hostel to lease a flat from her or her partner. He found her difficult to manage. On 26 January 2002, an exchange that was evidently heated occurred between the claimant and the second respondent, the cause of which appears from the tribunal’s judgment but can be stated, shortly, to have arisen from the claimant’s failure to follow an instruction given to her by him in circumstances where she thought, as a result of a misunderstanding, that she was justified in doing so; she was in fact not. The outcome of the exchange was that the claimant was upset and lodged a statement of grievance.
4. Fiona Stringfellow, Housing Manager of the first respondents, fixed a meeting in response to the grievance which took place on 31 January 2002 and an informal process of dealing with the grievance was commenced. The claimant attended with her union representative. She indicated that she had a number of complaints about the second respondent’s conduct towards her in addition to her complaint about what had happened on 26 January and a further meeting to discuss these was arranged for 6 February. Those complaints are also fully detailed in the tribunal’s judgment. The claimant did not want to have a meeting at which the second respondent was present so Fiona Stringfellow agreed to speak to him separately and revert to the claimant. Eventually, Fiona Stringfellow having written to her on a number of occasions, she agreed to have an informal meeting including the second respondent and that meeting took place on 22 May. By a lengthy and detailed letter dated 31 May, Fiona Stringfellow advised the claimant that she had fully considered all her complaints. She accepted that the second respondent was ‘too directive’ towards her on the occasion of 26 January but asked her to consider his position as a manager who had issued a clear management instruction. She, further, explained that, having investigated the claimant’s other complaints, she could not find any examples of her being subjected to discrimination. In respect that certain of the complaints related to inappropriate remarks by the second respondent, she assured the claimant that he had been spoken to about it. She indicated that she recognised that there was a need for the claimant and the second respondent to rebuild their working relationship and proposed that there should be regular support and supervision sessions between the two of them.
5. On 27 June 2002, the claimant’s union representative wrote indicating that the claimant was not satisfied with the informal resolution of her grievance. However, neither then nor at any other time was any indication given of what it was that the claimant was looking for by way of resolution beyond what had already been done by the first respondents. The first respondents’ formal procedure was, in the light of the non-acceptance of the outcome of the informal procedure, subsequently applied; the claimant was invited to a meeting as part of that procedure on 2 August. She attended it and repeated her earlier complaints indicating that although she felt it was discrimination, she “did not want to go down that road at that time”. It seems that her complaint was a general one of bullying, harassment and of being treated less favourably than other members of staff.
6. Fiona Stringfellow then proceeded to interview the second respondent and other members of staff regarding the events of 26 January. She wrote to the claimant on 12 September indicating that she was not satisfied that the second respondent had deliberately tried to bully or harass her; she did, however, find that his behaviour towards her on 26 January was inappropriate. The claimant appealed. Her appeal was heard by the first respondent’s Mr Fraser, on 7 November and was refused by letter dated 21 November. The claimant having sought to raise with Mr Fraser, for the first time, a complaint of racial harassment, he wrote to her on 22 November, requiring that she provide details of the allegation within seven days. He allowed her extensions of time to respond, to 13 December, but no timeous response was received by him so he wrote indicating that the first respondents would not be carrying out any investigation. By letter dated 14 December, the claimant wrote that she acknowledged that she could work in a professional manner with the second respondent and would work to benefit the project and make it a success.
7. Mr Fraser did, however, have the possibility of racially motivated behaviour within the hostel investigated on a general basis and instructed an independent adviser, Peter Nussey, for that purpose. He found no direct evidence of racial harassment or racial discrimination at the hostel and Mr Fraser advised a meeting of staff of that outcome, on 13 February 2003. The claimant tendered a resignation letter on 2 March 2003 in which she made the following allegation:
“I am compelled to make you aware that I feel I have been left with no alternative in resigning from my post. During the past 18 months I have encountered continual bullying and harassment from Davie Rutherford, which I still believe to be racially motivated. This is now being perpetrated by Amanda Wells. This is having a hugely negative effect on me and for the sake of my physical and mental health and that of my family, who have been badly affected by the lack of support and understanding I have had from my employer, I must resign.”
Amanda Wells was another of the project workers. She had a personal relationship with the second respondent. By that time, the claimant had been offered a managerial post with another housing association. She met with Fiona Stringfellow on 5 March and, in the course of that meeting, indicated that both the second respondent and Ms Wells were bullies and she would not work under them. Fiona Stringfellow asked her for details of the bullying and harassment that she alleged had been carried out by Ms Wells. She, further, wrote to the claimant by letter dated 12 March in terms which included the following:
“Your letter of resignation contains a number of issues which you have raised which I must advise you that I do not support. Over the last year, my Director and I have held a number of meetings in relation to your grievances. We have tried our best to investigate and confirm our decisions regarding all the matters that you have raised. I am therefore sorry that you have chosen to resign for the reasons noted, especially as I have endeavoured to do all that I can to assist you in resolving these matters.”
The Issues
8. The issues that the tribunal had to address were, firstly, whether or not the claimant had suffered racial discrimination whilst in the employment of the first respondents on account of the conduct of the second respondent and, secondly, whether she had been constructively dismissed. Those were the two complaints specified in her originating application and are the two matters addressed by the tribunal in their judgment.
The Tribunal’s Decision
9. The tribunal made the following determination:
“There is no dispute that the claimant, although born and brought up in Scotland, can be regarded by virtue of her parentage as having the national origin of an Asian country, although which one was not specified.
It is clear that she was treated less favourably by the second respondent than other Project Workers in a number of respects, in particular in the way in which he dealt with her on a day-to-day basis, frequently writing her notes and memos criticising her for work she had done and work she had not done, and avoiding speaking to her and preferring to conduct discussions and convey information by speaking to other staff rather than to her. The applicant complained of a number of instances of her being refused training, but there was insufficient evidence of the totality of training to establish whether that treatment was less favourable. We found it difficult to reach a conclusion on whether the incident which loomed largest in the claimant’s complaint, the altercation over the supervision notes on 26 January 2006 was less favourable treatment in that the second respondent would not have treated another member of staff in such a fashion, but we have concluded that was the case, and it was therefore less favourable treatment. We reach a different conclusion with regard to the complaints of lack of regard for her safety, such as the situation with D, as there is no basis for concluding that the second respondent would have adopted a different attitude to the installation of a panic button, or in his dealings with D, if a member of staff other than the claimant had been threatened.
We now have to look at the respondents’ explanation for the treatment which was less favourable; the first of these was that the second respondent was not satisfied with the claimant’s performance of her duties, and the second was that she had shown herself in the incident with the attempt to lease a flat to former residents as at the very least having a profound lack of judgment and probity. This was compounded by her attitude of professing acceptance of the very mild disciplinary action that had been taken against her while attributing her action to lack of experience and complaining of the lack of support and sympathy for her. The second respondent clearly found her difficult to manage, and he chose to do so by being more remote and formal with her than with other members of staff. These factors were responsible for his reaction to her refusal, seen by him as quite without justification, to comply with his instruction to provide the notes of the support and supervision session with Ms Palmer to vouch for her claim to TOIL.
On that basis, we find that the respondents have proved on the balance of probabilities the reasons for treating the claimant less favourable, and that these are sufficient to establish that race, ethnic or national origins were not any part of these reasons for the treatment.”
The Submissions on Appeal
Submissions for the Claimant:
10. The case first came before us for a full hearing on 22 September 2005. It soon became apparent that the claimant sought to rely heavily on an a submission that the tribunal were wrong to have excluded certain evidence. That evidence was, it was said, the documents contained in a 3rd Inventory of Productions that was tendered for the claimant but was not allowed to be lodged.
11. There being no reference in the tribunal’s judgment to this matter, we pronounced an order in the following terms
“UPON HEARING Mr D O’Carroll, Advocate for the Appellant
Mr I Kennedy, Solicitor for the Respondent
THE TRIBUNAL ORDERS ‘(1) This appeal be sisted pending referral back to the Employment Tribunal to answer (within, if practicable, 28 days of the date of the sealed order) the following questions, namely:
(a) whether a 3rd Inventory of Productions for the appellant was tendered on her behalf?
(b) if so, when? (it is thought that such an Inventory was tendered in the earlier part of the hearing, in February 2004, some time after the leading of evidence had commenced).
(c) if so, whether it was allowed to be admitted as a production?
(d) if not, why not?
(e) what were the terms of any ruling made in respect of any attempt to have such Inventory admitted as a production or its contents referred to in evidence?
(f) in the event of the tribunal having, at any time, ruled that the contents of such Inventory could not be referred to in evidence, what were their reasons for doing so?
(2) The Employment tribunal is requested to give its answers (which will be supplied by the Employment Appeal Tribunal to the parties) by reference to its notes of the hearing.
(3) Liberty to either party to apply on paper on notice to the other within 14 days of the date of the sealed order to vary or discharge this order. The Employment Appeal Tribunal reserves the right to vary or discharge this order on prior notice to the parties.’”
The tribunal responded in the following terms:
“ANSWERS by the EMPLOYMENT TRIBUNAL to questions referred by the EMPLOYMENT APPEAL TRIBUNAL on 22 October 2005
(a) The documents listed in the 3rd Inventory of Productions were submitted to the Tribunal by the applicant’s representative.
(b) At the commencement of the Tribunal Hearing, the applicant’s representative submitted two bundles of documents, the first of which included several items which bore to be responses made by employees of the first respondent in the course of an internal investigation which that respondent had carried out. Two of the documents attached to the 3rd Inventory of Productions (Catherine Wheatcroft and Mark Lake) were identical to those in the first bundle.
The notes of the tribunal do not record when the documents listed in the 3rd Inventory of Productions were submitted, but my recollection is that this was done on the second day of the Hearing, after the evidence of the applicant and one other witness, Alex Lavin.
(c) After the third witness, Joanne Blair, had confirmed her witness statement, the applicant’s representative referred her to the document listed as A14, at which point the respondents’ representative objected to the admission of this and all other such statements in this form. The Tribunal adjourned and on the following morning submissions were made by both representatives regarding the admissibility of these documents. Following consideration of these submissions, we ruled that the statement per se should not be admitted as productions.
(d) We took the view that these statements did not represent the vest evidence of matters referred to in them, that to the extent that they referred to matters of which the respondents had not had notice, their admission would be unfair to the respondents, but we made it clear that this did not prevent the applicant from leading evidence from witnesses on matters which were contained in the applicant’s claim as set out in the very detailed statement of Further Particulars lodge don 7 August 2003.
(e) and (f) Jackie Keeley whose statement was submitted as A13, Joanne Blair (A14) and Wendy Jane Morris (A16) subsequently gave evidence which included evidence of matters which were referred to in their statements.”
At the resumed hearing, Mr O’Carroll began by addressing us under reference to the ground of appeal in which it was said that the tribunal had improperly exercised their discretion in not allowing the third Inventory of Productions to be admitted. However, after discussion and consideration, he indicated that he was not insisting on this ground of appeal.
12. Counsel for the claimant then moved to a ground of appeal in which, according to the notice of appeal, it was said that the tribunal erred in law in failing to draw inferences of discrimination. It quickly became evident, however, that that was not the argument that he sought to advance at all. He sought to advance a different argument in which he began by focussing on an employment tribunal’s duty to make findings in fact. This was a new argument, not foreshadowed in the notice of appeal, as was, ultimately, accepted by Mr O’Carroll.
13. Mr O’Carroll then made a motion for leave to amend the grounds of appeal by adding a new ground in the following terms:
“The Employment Tribunal erred in law by failing to make adequate findings in fact in relation to the allegations of discriminatory conduct made by the claimant against the second respondent, for whom the first respondents are vicariously liable.”
14. He added that he recognised that if his motion were to be granted, that would necessitate a further adjournment of the appeal since the respondents had not, hitherto, had notice of this ground.
15. Mr Kennedy opposed the motion on the grounds of lateness and indicated that if it were to be granted, he would be seeking an order for costs since any adjournment would plainly be the fault of the claimant.
16. We refused Mr O’Carroll’s motion to allow the grounds of appeal to be amended. It seemed to us that it came far too late in the day. The claimant had had ample opportunity, prior to the hearing, to consider her existing grounds of appeal and make any application for amendment of them that was felt to be necessary. In particular, an obvious opportunity to do so had arisen when the prior hearing had been adjourned on 22 September 2005, over ten months earlier. There was no explanation of why no steps had been taken to seek such an amendment earlier. Further, we did not consider that what was now proposed afforded adequate specification of what it was that the claimant now sought to advance as a new ground of appeal. It was not clear what allegations the claimant was referring to or in respect of what evidence it was that the claimant was alleging that the tribunal had failed to make findings in fact.
17. In the event, no argument was advanced to the effect that the tribunal had failed to draw inferences of discrimination that they should have drawn.
18. Mr O’Carroll then turned to a ground of appeal in which it was stated that the tribunal had erred in failing properly to apply the guidance given in the case of Barton v Investec Crosthwaite Securities Ltd [2003] IRLR 332. He began addressing us under reference to this ground but it again became apparent that he was in fact seeking to advance a different argument to that of which notice had been given in the ground specified. He did not, in the event, insist on this ground of appeal either. Nor did he insist on the last two grounds of appeal stated in the notice.
19. Ultimately, only one ground of appeal remained. It was in the following terms:
“The tribunal’s findings at paragraph 59 on page 24 that ‘race, ethnic or national origins were not any part of those reasons for the treatment’ are contrary to the evidence and accordingly perverse in relation to all legal authority where tribunals are urged to consider all the circumstances of a case and consider the effective cause of treatment as in O’Neil v Governors of St Thomas More Scholl 1996 IRLR 372.
“The event or factor alleged to be causative of the matter complained of need not be the only or even the main cause of the result complained of. It is enough if it is an effective cause.”
The tribunal’s finding that race did not play any part in the treatment is not supported by the evidence and is accordingly perverse in relation to the guidance set out in O’Neil.”
Mr O’Carroll did not in fact make any reference to O’Neil or to any principle to be derived therefrom in his submissions. He submitted that the tribunal’s decision was perverse because, on reading paragraphs 57 – 59, it was evident that they had not found that the respondents had proved that the second respondents reasons for affording less favourable treatment to the claimant were not related to race, ethnic or national origins except in respect of the events of 26 January 2002. He submitted that, on the face of it, the tribunal had not addressed itself to the respondents; explanations of anything other than those events. His approach was evidently one in which he sought to construe the terms of the judgment and to construe them to the effect that whilst, on a reading of paragraph 59 it might be thought that the tribunal were dealing with the whole of the less favourable treatment findings, they were not in fact doing so because of the way in which paragraph 58 fell, in his submission, to be read.
Submissions for the Respondents:
20. Mr Kennedy submitted that it could not be said that the tribunal’s findings were perverse. It could not be said that their decision was so badly wrong that it could not possibly be allowed to stand. It could not be said that their decision was offensive as a matter of law and/or logic. The respondents had put forward to adequate explanations for the less favourable treatment complained of and there had been sufficient evidence to support those explanations. It could not be said that no reasonable Tribunal properly directing itself could have concluded that race played no part in the claimant’s less favourable treatment. It was evident from the face of the judgment that the tribunal took into account the history of the case, the relationship between the parties, the whole circumstances of the case and, in particular, the circumstances of the relationship between the claimant and the second respondent, before reaching its decision that, on the balance of probabilities and for the reasons put forward by the respondents, the claimant’s case failed.
21. The high test for disturbing a decision on perversity grounds had not, he submitted, been met. Regarding the claimant’s case that the judgment fell to be construed so as to find that the tribunal had not in fact found that all the less favourable treatment was for reasons that were not related to race, he submitted that it was evident that the tribunal had in fact explored the totality of the relevant circumstances and had been entitled to reach the ultimate conclusion that they did, namely that there had been no racial discrimination.
The Law
22. The relevant statutory provisions are to be found in the Race Relations Act 1976, s.4(2) of which provides:
“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.”
Section 1 provides:
“(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; or
(b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but –
(i) which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of the racial group who can comply with it; and
(ii) which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or n national origins of the persons to whom it is applied; and
(iii) which is to the detriment of that other because he cannot comply with it.”
Section 3 also has to be considered. It provides:
(1) In this Act, unless the context otherwise requires –
‘racial grounds’ means any of the following grounds, namely colour, race nationality or ethnic or national origins;
‘racial group’ means a group of persons defined by reference to colour, race, nationality or ethnic or national origins, and references to a person’s racial group refer to any racial group into which he falls.”
23. Finally, account requires to be taken of s.54A which provides:
“(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 the grounds of race or ethnic or national origins which is unlawful by virtue of any provision referred to in section 1(1B)(a), (e) or (f), or Part IV in its application those provisions, or
(b) Has committed an act of harassment.
(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 treated as having committed that act”
As the tribunal recognised, the effect of s.54A has been to require a more rigorous approach to the assessment of evidence in a racial discrimination case. A step by step approach that takes proper account of the terms of the section and the Burden of Proof Directive (97/80/EC), has to be adopted. That approach has been discussed at some length in two cases which are now well known, one the case of Barton v Investec Henderson Crosthwaite Securities Ltd [ 2003] IRLR 332 and the other being the appeals that were heard together including the case of Igen Ltd v Wong [2005] IRLR 258. In the latter the Court of Appeal approved the guidance set out in the former, subject to the insertion of one further guideline. The Court of Session, in the case of Dhesi v Glasgow City Council,(IH) unrepd 1 December 2005, applied Igen.
24. In Barton, Judge Ansell said:
“(1) Pursuant to s.63A, it is for the applicant to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondents have committed an act of discrimination which is by virtue of Part II or which by virtue of s.41 or 42 is to be treated as having been committed against the applicant. These are referred to below as ‘such facts’.
(2) If the applicant does not prove such facts he or she will fail.
(3) It is important to bear in mind in deciding whether the applicant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that ‘he or she would not have fitted in’.
(4) In deciding whether the applicant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal.
(5) It is important to note the word is ‘could’. At this stage a tribunal is looking at the primary facts proved by the applicant to see what inference it is proper to draw from the primary facts proved by the applicant to see what inferences of secondary fact could be drawn from them.
(6) These inferences can include, in appropriate cases, an inferences that it is just and equitable to draw in accordance with s.74(2)(b) of the Sex Discrimination Act from an evasive or equivocal reply to a questionnaire or any other questions that fall within s.74(2).
(7) Likewise, the tribunal must decide whether any provision of any relevant code of practice is relevant and if so, take it into account in determining such facts pursuant to s.56A(10). This means that inferences may also be drawn from any failure to comply with any relevant code of practice.
(8) 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, then the burden of proof moves to the respondent.
(9) It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed that act.
(10) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since ‘no discrimination whatsoever’ is compatible with the Burden of Proof Directive.
(11) That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not any part of the reasons for the treatment in question.
(12) Since the fact necessary to prove an explanation would normally be in the possession of the respondent 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.”
25. In Igen, the Court of Appeal inserted, as a new sixth matter to be considered:
“(6) In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts.”
In short, the tribunal were required to ask themselves whether the claimant had proved, on a balance of probabilities, facts from which it could conclude ( not allowing at that point, for there being an adequate explanation for those facts) that the second respondent had subjected the claimant to racial discrimination. If they were satisfied that she had proved such facts, they then had to ask whether the respondents had proved, on a balance of probabilities, that the treatment received by the claimant was not on grounds of racial discrimination in any respect. It is evident from the tribunal’s judgment that they were aware of and understood this test and that moreover, they applied it.
Discussion and Conclusions
26. We have no hesitation in rejecting the arguments advanced under reference to the sole surviving ground of appeal. The perversity test was, somewhat surprisingly, not referred to by counsel for the claimant at all. We remind ourselves that it is a high hurdle for an appellant to overcome. It is necessary to show that the decision was irrational. Various examples of the way in which such irrationality can be characterised can be drawn from the authorities varying from a decision which offends reason or makes absolutely no sense to where an overwhelming case is made out that the tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached (Yeboah v Crofton [2002] IRLR 634).
27. We reject the claimant’s argument for two reasons. Firstly, we cannot attribute to paragraphs 57 – 59 the construction that the claimant seeks to put on them. It is plain, in our view, that the tribunal have there made findings that the claimant received less favourable treatment in several respects but have also made findings that the reasons for all that treatment, not just what happened on 26 January 2002, were as set out in the whole of paragraph 58. Those reasons are, plainly, nothing to do with the race, ethnic or national origins of the claimant.
28. Secondly, we were not satisfied that anything advanced by way of argument on the claimant’s behalf met the test for perversity. On the contrary, the decision reached namely that there was no racial discrimination, was one which, on the evidence, they were entitled to reach. They did find in the claimant’s favour that she had overcome the first hurdle of setting up a prima facie case of proving facts from which the relevant discrimination could have been inferred. The tribunal properly went on, however, and considered what was the outcome once the respondents’ case had been assessed and what were their conclusions regarding it, correctly bearing in mind that the onus was, at that point, on them. We do not see that there is any proper basis on which we could interfere with their decision.
29. We would add our concern that, in an appeal which started its life with seven grounds of appeal only one was ultimately argued and the restriction to that ground only occurred in the course of the hearing before us. The notice of appeal is dated 20 December 2004. The order setting the appeal down for a full hearing on all grounds was dated 28 January 2005. As we have indicated, the full hearing was originally set down for 22 September 2005 but that was adjourned so that further information could be obtained from the tribunal. The final full hearing took place on 8 August 2006, by which date this tribunal had prepared the case under reference to the existing notice of appeal and the solicitor for the respondents had prepared a full written submission also under reference to it. In short, there proved to have been much in the way of wasted time and effort that could have been avoided had the claimant’s advisers sooner turned their minds to which grounds of appeal were actually considered to be worth advancing.
30. We do not mean to indicate that it will always be a matter for criticism if a ground of appeal is withdrawn at the full hearing; much will depend on the facts and circumstances of the individual case. In this particular case, however, more than nine months elapsed between the drafting of the notice of appeal and the full hearing and more than a further ten months elapsed between it and the final full hearing date. That should, we feel, have allowed more than enough time for the grounds to be revisited, a check made as to whether they were all being insisted on and adequate notice given of any ground that was not. Parties reasonably expect this tribunal to try to deal with their claims efficiently and expeditiously; it is entitled to expect the same approach to be applied to the preparation of their cases. It is unfortunate that that evidently did not happen in this case.
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