United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Ms C McCann (of Counsel) instructed by : Messrs Beachcroft LLP Solicitors 100 Fetter Lane London EC4 1BN
For the Respondent	Mr M Panesar (of Counsel) instructed by: Messrs Fadiga & Co 2 The Boulevard Balham High Road London SW17 7BW


 


SUMMARY

Race Discrimination – Inferring discrimination; Victimisation; Vicarious liability

The Employment Tribunal appear to have found that a non-discriminatory, unreasonable, treatment of the Claimant was prima facie on the grounds of his race. The Employment Tribunal had failed to adequately consider evidence of non-discriminatory factors that may have explained the Respondent's conduct, as not being discriminatory.


 


HIS HONOUR JUDGE SEROTA QC

Introduction

1. This is an appeal from a decision of an Employment Tribunal at London Central (T P Ryan Esq., Chairman) entered on the register on 9 December 2005 after a five-day hearing. The Employment Tribunal concluded that the Claimant had been unfairly dismissed and had suffered discrimination on the grounds of race.
2. The appeal only relates to findings of discrimination on the grounds of race. There is no appeal against the decision that the Claimant was unfairly dismissed. The notice of appeal was originally quite extensive, but parts only have been referred to a full hearing by HHJ Clark after a preliminary hearing on 11 April 2006.

Factual background

3. The Claimant is of black African ethnicity. We believe that he is of Ghanaian origin. He has a clinical background with 12 years' experience as a Registered General Nurse.
4. The Respondent was the Strategic Health Authority for North East London and was responsible for introducing a programme known as "booking and choice" whereby patients seeking referral to hospital would be provided with some choice of service providers and times of appointments.
5. There was an issue as to whether the Respondent would implement a local scheme or a national scheme. The Employment Tribunal found that the Claimant was a proponent of the national scheme whereas, in due course, the Respondent chose to implement a local scheme.
6. The persons involved in the matters giving rise to the proceedings, apart from the Claimant, were Mr Ranger, the Respondent's programme director, Mr King, a consultant project manager at the City and Hackney Primary Care Trust (PCT) and Homerton University Hospital Trust, Mr Rowlands, director of specialist services for City and Hackney PCT, Tracey Fletcher, the director of planning for the City and Hackney PCT, and Carol Yorrick, the Respondent's senior human resources advisor.
7. Mr King, Mr Rowlands and Ms Fletcher were not employees of the Respondent (which we note has been re-organised out of existence) but for the purposes of these proceedings, the Respondent has accepted that in respect of the matters complained of, they were acting on behalf of the Respondent so as to make the Respondent vicariously liable for their conduct.

Factual background

8. On 16 June 2003, the Claimant commenced work with the Respondent as assistant project manager for the booking and choice programme. He was initially to work on a project with City and Hackney PCT, but in the absence of Mr Ranger he attended a number of project board meetings under the wing of Mr King. On 3 November 2003 the Claimant was appointed as acting project manager. Mr Rowlands expressed some reservations but agreed to the Claimant's appointment if he was set objectives against which his performance would be assessed. The Claimant was told his performance would be so measured in three months. There were also concerns expressed in some quarters as to the Claimant's ability to make satisfactory presentations. On 14 January 2004 the Claimant signed his performance objectives. The Employment Tribunal found that at this point in time, Mr Rowlands had decided the Claimant should be removed from post. On 20 March 2004, the Respondent determined to proceed with a local, as opposed to national, scheme. Mr Rowlands told Mr Ranger that he wanted a change in the project manager. This surprised Mr Ranger, as the issue of concerns about the Claimant had not previously been raised, and Mr Ranger considered the Claimant had met all his objectives.
9. On 1 April 2004, the Claimant had an initial review meeting with Mr Ranger, when Mr Ranger told him that the board had concerns about his performance as to which he would obtain clarification. The Claimant felt he was not being treated fairly and he attributed his treatment to the fact that his black face did not fit. He considered that the subjective assessment he received was being politically engineered by Mr Rowlands and Ms Fletcher.
10. On 27 April 2004 the Claimant learned for the first time that the project board wanted him replaced and the Employment Tribunal was satisfied he was told that he was disliked by Mr Rowlands and Ms Fletcher.
11. On 13 May 2004, the Claimant was confirmed as project manager, his appointment being backdated to 1 April. He consulted Carol Yorrick and complained of discrimination. On 20 May 2004, as he was about to go on leave, he told Ms Yorrick he would put in a grievance on his return. On 20 July 2004, he sent an email to the Respondent complaining of his treatment, and asked for a meeting with Mr Ranger and a representative from the Respondent's human resources department as soon as possible. He was due to go on annual leave from 26 July to 13 August 2004 and a meeting was arranged on his return on 24 August 2004. The meeting was attended by Mr Ranger, Ms Yorrick and the Claimant. The Employment Tribunal found that Ms Yorrick and Mr Ranger had watered down the minutes of this meeting to underplay the Claimant's ability in case he subsequently made a claim. There were unsuccessful attempts to arrange a meeting between the Claimant and Mr Rowlands. Mr Rowlands was unwilling to have a meeting until the matter was resolved.
12. The Claimant went on sick leave on 28 August 2004 until 6 September 2004. On 7 September 2004, he met Mr Rowlands and Mr Ranger in an attempt to get to the bottom of why they wanted him removed from his post and suggested that it was the result of racism. The Claimant considered that the reason for this treatment was racism and described the meeting as the "last straw". He felt demeaned, humiliated and disempowered and could not tolerate the situation any longer and he gave notice of resignation both orally and by letter after a meeting with Mr Ranger on 8 September 2004. In October 2004, a Mr Sham Rahim was appointed to the post formerly held by the Claimant as acting project manager. The ET1 was presented on 8 November 2004. We have already referred to the decision and we note that at a subsequent remedies hearing the Claimant was awarded a compensatory award of £44,439.45, together with interest, as well as £4,500 in respect of personal injuries (together with interest) and for injury to his feelings the sum of £5,000 together with interest.

The decision of the Employment Tribunal

13. The Employment Tribunal set out the facts that we have very briefly summarised. We note that the Employment Tribunal was critical of the credibility of a number of the Respondent's witnesses and found, by way of example, that an email Ms Fletcher was said to have sent to Mr Rowlands never existed.
14. We note in passing that the Employment Tribunal sets out the submissions made by the Claimant (which were made orally by his Counsel Mr Elesinnla) but only refers to the Respondent's submissions by reference to a written outline expanded orally. It may be not be a matter of moment, but the Employment Tribunal has set out the Claimant's submissions over some two pages but there is no reference at all, beyond what we have mentioned, to the submissions of the Respondent.
15. The Employment Tribunal directed itself by reference to the relevant statutory provisions, the Race Relations Act 1976, including section 1(1)(a) which defines racial discrimination, s.3(1)(4) which defined "racial grounds" and "racial group", s.4(2)(c), s.54(a) which provides for the burden of proof to shift in certain circumstances, and also to a number of authorities including Zafar v Glasgow City Council [1998 IRLR 36, Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285, Bahl v Law Society [2003] IRLR 640 and Anya v University of Oxford [2001] IRLR 377. The Employment Tribunal at paragraph 12(1) concluded that s.54(a) of the Race Relations Act 1976 did not apply because the Claimant in evidence had said, and persisted in saying, he believed the treatment was on the grounds of colour. While colour was one of the racial grounds under s.3 of the Act, discrimination on the ground of colour without more, in the view of the Employment Tribunal, was "not discrimination on grounds of racial, national or ethnic origin." There has been no cross-appeal against this part of the decision of the Employment Tribunal. We have not heard submissions on the point, but we are bound to say we have the gravest doubts as to whether it is correct. As will appear later in this judgment we are minded to allow the appeal and will direct that the matter be remitted to a differently constituted Employment Tribunal. We say at this point in our judgment that the case of discrimination as a whole is to be considered, including the applicability of s.54(a) of the Race Relations Act.
16. The Employment Tribunal, as it did not apply s.54(a), determined that it would follow such cases as King v Great Britain-China Centre [1992] ICR 516, Anya and Shamoon. It directed itself in paragraph 12.5 that the Claimant must, in effect, raise a case that he was subject to a detriment which amounted to less favourable treatment than that of an actual or hypothetical comparator, and if such a case were raised, the Employment Tribunal would look to the Respondent for an explanation. The Claimant relied upon four specific allegations of detriment or unfavourable treatment:

(i) (in its final formulation) the Claimant was required to meet an objective which necessitated him gaining the respect of the project board;

(ii) in April 2004 Ms Fletcher and Mr Rowlands sought to remove the Claimant from the project board for reasons which did not relate to his skills or ability;

(iii) Mr Ranger failed to give the Claimant adequate support in relation to Ms Fletcher's and Mr Rowland's desire to have the Claimant removed as project manager, and

(iv) these matters, taken together, amounted both to constructive dismissal as well as discrimination on racial grounds.

17. At paragraph 12.7, the Employment Tribunal determined that once a request for the Claimant's removal had been made, the Respondent, as his employer, should either have accepted it at face value and acted upon it, or should have rejected it and taken proper issue with the project board about it. It fell, however, between two stools; the Respondent, mainly through Mr Ranger, on the one hand was trying to ensure the project was brought in on time and on budget and at the same time was under an obligation to try and watch out for the Claimant's status as his employee and direct report. The Employment Tribunal considered that the Respondent and Mr Ranger had not acted appropriately. At paragraph 12.8, the Employment Tribunal concluded that Ms Yorrick had failed to deal properly with the Claimant's legitimate concerns that he was being "fobbed off" with excuses. This was particularly so when the Claimant could demonstrate that he met the objectives set for him and there was no objective-based reason for his removal from the project board. This led the Claimant to a genuine belief that the reason for his treatment related to his colour. The Employment Tribunal concluded that Ms Yorrick herself recognised the degree to which the Respondent's HR resource had failed the Claimant. The Employment Tribunal concluded the Respondent had delayed in investigating the Claimant's allegations that he was being treated in a discriminatory manner and when meetings were arranged for 23 August and 7 September, the Respondent failed to deal with the issues properly and in breach of the duty of mutual trust and confidence.
18. At paragraph 12.12 the Employment Tribunal found that the reason for the project board's decision to have the Claimant removed was because of:

" …a fear or belief that he would not be able to handle the politically sensitive implementation of its own local scheme in relation to the booking and choice programme. That decision was taken at a time when that local scheme when it was in its very earliest days and in the erroneous belief that the Claimant lacked the clinical experience necessary for the delivery of the project to the PCT and the hospital trust. However, that belief was formed at a very early stage, without true knowledge of the Claimant's clinical experience and without raising [it] with Mr Ranger at that stage. Those matters suggest to the Tribunal that the concerns expressed in evidence about the Claimant's performance were more imaginary than real and were not the real reason for the request. In other words, we find the Respondent's underlying reason for the Claimant's treatment to be unsatisfactory."

19. The Employment Tribunal then turned to the allegations of discrimination. In relation to the first allegation relating to meeting of objectives, the Employment Tribunal was not satisfied there had been discriminatory conduct because it was not satisfied the Claimant had been treated differently to a hypothetical comparator. In relation to the second issue, the Employment Tribunal was satisfied that the attempt by Ms Fletcher and Mr Rowlands to remove the Claimant was a detriment and less favourable treatment than would have been meted out to a hypothetical comparator. The allegation was upheld because the Respondent's explanation was unsatisfactory and the Employment Tribunal concluded on the balance of probability:

"12.14 …that a significant part of the reason the Claimant was treated less favourably than a hypothetical comparator would have been in similar circumstances was because he was black."

20. In relation to the third allegation concerning support from Mr Ranger, the Employment Tribunal was not satisfied that a hypothetical comparator would have been treated differently and the allegation was rejected.
21. The Employment Tribunal considered:

"12.16 The fourth allegation was the other side of the coin to the second allegation. In effect it was the culmination of the decision to have the Claimant removed from his post and failure to address his queries and concerns as to the reason for that decision. It was certainly a detriment. For the same reasons as those expressed in paragraph 12.14 above [the second allegation] the Tribunal finds that it was less favourable treatment on racial grounds…"

22. The Employment Tribunal went on to find that the matters complained of fell within the definition of an "act extending over a period" and upheld the claim of unfair dismissal because the Respondent was unable to show potentially fair reason for the dismissal within s.98 of the Act.

The notice of appeal

23. There are essentially two grounds of appeal as refined in the Respondent's skeleton and oral submissions. The first ground of appeal is that the Employment Tribunal drew the inference of discrimination on the grounds of race from primary findings of fact but did not set out sufficient background facts as to show why it was entitled to draw such an inference. It therefore, it is said, mis-applied the law as set out in cases such as King, Zafar, and Bahl. Secondly, the Employment Tribunal fell into what was referred to as the "Zafar trap" of finding that the reason for the detriment put forward by the Respondent was unsatisfactory and then going straight on to find that the reason for the detriment was discriminatory. If the Employment Tribunal had considered that the reason was genuine and non-discriminatory, even if unsatisfactory, the Employment Tribunal should have found that there was no discriminatory reason for the detriment.
24. The Employment Tribunal, it is said, failed to direct itself properly before exercising its discretion to draw an inference of discriminatory conduct; it could only draw such an inference on the basis of facts that it had found. The Employment Tribunal had failed to have regard to the principle that it needed to be satisfied the Respondent would have treated a comparator differently, and had failed to direct itself that unreasonable treatment of an employee without more was not an appropriate basis upon which to infer discrimination. It is said that there was no adequate explanation as to why the Employment Tribunal found there was an inference of discrimination so the decision was not "Meek" compliant. The Employment Tribunal had also failed to make findings as to the characteristics of the hypothetical comparator, nor as to how the hypothetical comparator would have been treated. There was no reason, therefore, for finding that the Claimant had been treated less favourably than a hypothetical character.
25. The focus of attention was mainly on paragraph 12.14 of the decision, but also on paragraph 12.12. In support of the notice of appeal, Ms McCann helpfully set out in her skeleton argument the principles which she had elucidated from a number of cases to which she referred. Mr Panesar, who appeared for the Claimant, accepted those principles as being accurate, and that concession was, in our opinion, rightly made. In the circumstances, therefore, we set out those principles without the need to refer to the relevant authorities and the appropriate citations. We have made only one minor addition to these principles by adding the words "in itself" to point No. 7:

"1. The tribunal should only look to a respondent for an explanation where the claimant had proved unfavourable treatment and had proved facts which were consistent with that treatment being less favourable as compared to an actual or hypothetical comparator (in materially comparable circumstances). The ET, therefore, had to be satisfied that a comparator would have been more favourably treated;

2. It is an error of law for the ET not to properly consider the factors .other than race which, on its own findings, might realistically explain the conduct in question. If it rejected such an explanation, then the ET had to give cogent and considered reasons for so-doing;

3. Once the tribunal has looked to the employer for an explanation, it must look at the indicators which point towards race being an "effective cause" and at the indicators which point away from race being an "effective cause" and deal with each of these indicators;

4. In drawing adverse inferences, the tribunal can only do so on the basis of proper findings of fact which decisively point towards race being a significant part or an "effective cause" of the treatment complained of;

5. Once an explanation is provided by the respondent, the onus then remains with the claimant to establish that the difference in treatment was on the prohibited ground;

6. The respondent will often have unjustified albeit genuine reasons for acting as it has. If these are accepted and show no discrimination, there is generally no basis for the inference of unlawful discrimination to be made;

7. Where the ET has accepted the explanation given for certain conduct, the fact that it was unjustified or unreasonable did not justify any inference of discrimination and, to hold otherwise, is to fall into the "Zafar trap";

8. Where the ET has made specific findings that there were non-discriminatory considerations present which might explain the adverse treatment complained of, then it is all the more important to explain precisely why it then goes on to draw the adverse inference of discrimination;

9. The claimant must still point to facts which, if unexplained, point to race discrimination and the claimant must still prove that he has been less favourably treated than others in circumstances which are consistent with that treatment being based on racial grounds;

10. It is vital for the claimant to prove that any detrimental treatment is "less favourable treatment" as compared to a comparator. The ET must, therefore, make express findings as to how a hypothetical or an actual comparator would have been treated. If the ET fails to actually construct the hypothetical comparator, the ET could easily go "astray" in the comparison exercise required in s.1(1)(a) of the RRA 1976;

11. Before deciding to draw any adverse inference, the tribunal must satisfy itself that the respondent would have treated others of a different colour (but, otherwise, in the same material circumstances) more favourably;

12. If there was unconscious discrimination operating, one would not expect it to surface in an apparently arbitrary and piecemeal way."

26. The "Zafar trap" referred at point No. 7 is to infer less favourable treatment simply because it has been proved the Respondent behaved in an unreasonable manner towards the Claimant and that, in the absence of a non-racial explanation for that conduct, discrimination on grounds of race may be inferred. Ms McCann drew our attention to a number of factors which she submitted pointed to the reason for the Respondent's conduct towards the Claimant to be other than on grounds of his race or colour. Ms McCann pointed out in paragraph 17 of her skeleton argument that most of the Claimant's factual allegations which, if explained, might point to discrimination on the grounds of race, were rejected by the Employment Tribunal. She also pointed to a number of factual matters which, in her submission, "decisively" pointed to race not being a part of the Claimant's treatment. These included the following:

(i) concerns expressed as to the lack of clarity in the Claimant's presentations that were reported to Mr Rowlands;

(ii) the fact that the Claimant was a firm advocate of and committed to the national, as opposed to the local, booking management scheme;

(iii) concerns expressed by Mr Rowlands and Ms Fletcher as to the Claimant's ability to sell the local scheme and the finding at paragraph 12.12 by the Employment Tribunal that the reason for the project board's decision to remove the Claimant as project manager was the fear or belief he would not be able to handle the politically sensitive implementation of its own local scheme.

27. The Respondent also relied upon two further matters which, it submitted, pointed decisively away from colour or race being the effective cause of the treatment complained of, which the Employment Tribunal had failed to address:

(i) the Claimant's associate project manager, Lydia de Souza was of black Caribbean ethnicity;

(ii) the project manager recruited to replace the Claimant was not white (Sham Rahim) but of Asian ethnicity.

28. It was submitted that these matters should be been taken into account and that failure to consider them amounted to an error of law.
29. Ms McCann therefore submitted that while the Claimant had failed to prove factors that decisively pointed to race being the effective cause of his treatment, the Respondent had showed factors that decisively pointed to race not being a factor and that the Employment Tribunal fell into error in not considering that factors other than race might explain the Respondent's conduct and it gave no adequate reasons for rejecting the Respondent's case. The Employment Tribunal, it was said, drew the inference that race was relevant in the absence of factors that pointed decisively to that conclusion and in the presence of factors that suggested the contrary conclusion, that race was not the reason. The Employment Tribunal failed to explain precisely and with clear and cogent reasons why it drew the inference of discrimination; in this regard Ms McCann relied extensively on the decisions in Bahl and Meek and in particular on passages in Bahl (paragraphs 126 and 134) to the effect that where an Employment Tribunal has made findings of non-discriminatory considerations, it is all the more important to explain precisely why it goes on to draw adverse inferences of discrimination. The Employment Tribunal, it is said, looked for explanations from the Respondent without the Claimant having to show how a hypothetical comparator would have been treated and, in the face of contrary indications, pointing to non-discriminatory reasons for the Respondent's conduct towards the Claimant. The Claimant, was replaced by another employee from an ethnic minority background and the Claimant's assistant was also from an ethnic minority background. The Claimant simply said that this amounted to "window dressing". The Respondent said that the Employment Tribunal has failed to deal with these points at all.
30. The Employment Tribunal did not find that it disbelieved the Respondent's reasons and its case that it had genuinely held concerns. It had failed to direct itself that having received an explanation from the Respondent, it was still for the Claimant to prove that the treatment of which he complained was on a prohibited ground.
31. Ms McCann invited us to reverse the findings of the Employment Tribunal without remission; we deal with this point now because we find it impossible to say whether in fact the Employment Tribunal found that the reason for the Claimant's treatment was for non-discriminatory reasons or whether it could only have found that there were non-discriminatory reasons for the treatment complained of. The facts found by the Employment Tribunal and its reasoning do not permit us to say that the Employment Tribunal was or could only have concluded that the reason for the claimant's treatment were non-discriminatory.

The Claimant's submissions

32. The Claimant essentially says that the Employment Tribunal was correct, both in its findings of fact and as to its directions in law. Mr Panesar submitted that facts were essentially a matter for the Employment Tribunal. Although criticism was made of paragraph 12.14, this clearly had to be read in the light of the earlier findings of the Employment Tribunal.
33. In relation to the question of whether there should be a comparator, it was submitted there was no obligation on the part of the Employment Tribunal to construct a comparator, but in any event a comparator had been constructed in order to determine the first allegation of discrimination dealt with in paragraph 12.13 and, accordingly, that hypothetical comparator would serve for the purposes of paragraph 12.14 also.
34. Mr Panesar submitted that the Employment Tribunal, having sought explanations from the Respondent, were entitled to reject those explanations and accordingly draw the inference of discrimination; he relied upon the decision in Shamoon. He submitted that the approach of the Respondent was mechanistic. The Employment Tribunal had dealt with all points and that in essence the Respondent's case was that there were insufficient reasons for the decision. The Employment Tribunal had made detailed findings of fact under the various sub-headings of paragraph 7, and those set out gaping inconsistencies in the Respondent's case and supported the conclusions of the Employment Tribunal. The Respondent had failed and had been unable to satisfactorily convince the Employment Tribunal that its concerns were genuine and not related to the Claimant's colour or ethnic group.
35. When we put the specific findings at paragraph 12.12 to Mr Panesar, in which the Employment Tribunal found that the reason for the project board's decision to remove the Claimant was a fear or belief he would not be able to handle the politically sensitive implementation of its own local scheme, Mr Panesar was driven to submit, in effect, that the Employment Tribunal did not mean what it said. He submitted that in effect the Employment Tribunal rejected that explanation and he drew attention to the reference to the Respondent's "underlying reason". He submitted we must not look at paragraph 12.12 in isolation, although he did accept that the language in which the Employment Tribunal had expressed itself was unsatisfactory. However, looking at paragraph 12.12 in its context, it was clear, submitted Mr Panesar, that the Employment Tribunal had rejected the Respondent's explanation.
36. There was no credible basis for saying that the Employment Tribunal had fallen into the "Zafar trap". It was bound to come to the conclusion that there had been discrimination, even though there was no direct evidence of discrimination.
37. In relation to the construction of a comparator, Mr Panesar submitted it would be over-cumbersome for the Employment Tribunal to have to construct a hypothetical comparator in relation to each allegation that was made.
38. Although there was no cross-appeal, Mr Panesar submitted that the Employment Tribunal had fallen into error in saying section 54A of the Act did not apply and it would, in his submission, be "bizarre" if the Employment Tribunal was correct in this regard. We did not, however, hear detailed argument on the point.
39. Were we to be against him, Mr Panesar submitted that it would do a great injustice to the Claimant were we to substitute a decision for that of the Employment Tribunal to the effect that there had been no discrimination. We have already made clear that that is not our intention. He submitted that there was sufficient material before the Employment Tribunal to come to the conclusion it did. If the Employment Tribunal did not set out sufficient reasoning to establish the causal links between the facts and the findings, the matter should be remitted to the same Employment Tribunal which had heard the evidence and seen a large number of documents. The amount at stake was some £10,000 only and the Claimant had to pay for his representation (as did the Respondent). The decision of the Employment Tribunal was dated December 2005 and the remedies hearing took place in June 2006. There was only, therefore, limited passage of time and no suggestion that the Employment Tribunal had displayed partiality because it had found for the Respondent on a number of factual matters. The decision was not totally flawed, there were simply drafting issues, and to submit the matter to the same Employment Tribunal would not be giving them a "second bite", so as to speak. The Employment Tribunal would review its notes and give further reasons.
40. If we were against his submissions, and did remit the matter, the Employment Tribunal should (as we have already agreed) reconsider the application of s.54A.

Conclusions

41. Broadly, we prefer the Respondent's submissions. We are concerned at the core finding relating to discrimination in paragraph 12.14. This is a case in which the Respondent had put forward non-discriminatory reasons for having acted as it did, including most importantly, but not exclusively in our opinion, the following all taken from the decision:

(i) concerns that the Claimant was committed to the national as opposed to the local, scheme;

(ii) the project board was unaware of the Claimant's medical background;

(iii) the finding at paragraph 12.12, to which we have referred, that the reason for the project board's decision to remove the Claimant was a fear or belief that he would not be able to handle the politically sensitive implementation of its own local scheme;

(iv) the fact that his successor was also from an ethnic minority (Sham Rahim), as was his associate project manager, Lydia de Souza.

42. We are also concerned at the absence of explanation as to the hypothetical comparator. It may well be that the Employment Tribunal had in mind the hypothetical comparator referred to in paragraph 12.13 but this is by no means clear. It would be necessary for the Employment Tribunal to identify who the hypothetical comparator was and why he would have been treated more favourably. The comparison should at least have been with a white comparator who was seen to be a firm advocate of the national scheme and about whose ability to present the local scheme serious concerns had been raised. It is by no means clear to us that the Employment Tribunal had such a comparator in mind.
43. We have serious doubt as to whether the Employment Tribunal in fact had sufficient findings to justify reversing the burden of proof. It would have had to consider and reject the Respondent's non-discriminatory explanations but even assuming there were grounds (having regard to the need to explain precisely why it went on to draw the adverse inference of discrimination and explain in a satisfactory manner why it rejected the non-discriminatory reasons) this decision is wholly silent on the point.
44. Further, the fact that the Respondent may have had a belief that was both genuine and unreasonable (as appears to have been found in paragraph 12.12) does not mean that the reason for meting out the less favourable treatment was in fact discriminatory. It looks very much to us as though the Employment Tribunal in this regard fell into the "Zafar trap" by finding that a genuine but unreasonable reason for the detriment complained of was discriminatory or capable of being discriminatory. In our opinion, an unreasonable but non-discriminatory explanation for the detriment, providing it is found to be genuine, cannot lead to an inference of discrimination.
45. We are unable to accept that we should find in the Respondent's favour based on the findings made by the Employment Tribunal because it is far from clear that it found in fact that the reason for the treatment was necessarily non-discriminatory.
46. We have, of course, considered the decision in Sinclair-Roche & Temperley v Heard. We are unhappy about remitting the matter to the same Employment Tribunal. We obviously have regard to the saving in costs that might be effected if the matter were to be remitted to the same Employment Tribunal, but we are of the opinion that there appears to be a fundamental inconsistency between the finding in paragraph 12.12 and that in paragraph 12.14. We are also extremely unhappy about the decision of the Employment Tribunal in relation to s.54A. In the circumstances, the matter must be remitted for re-hearing before a differently constituted Tribunal. Of course, only the issue as to discrimination on the grounds of race will be before the Tribunal.