United Kingdom Employment Appeal Tribunal

APPEARANCES

 

 

For the Appellant	MR ADRIAN LYNCH (One of Her Majesty's Counsel) Instructed by: Eversheds LLP Cloth Hall Court Infirmary Leeds LS1 2JB
For the Respondent	MR ERSKINE GRANT (Representative)

SUMMARY

Unlawful Deduction From Wages & Race Discrimination: Post-Employment

The Employment Tribunal erred in construing "full salary" payable on the suspension of the Claimant as fettering the employee's right to end a short term temporary placement and restore him to his substantive grade which represented his "full salary".

The Employment Tribunal was directed on remission of one ground of appeal to reconsider its finding of race discrimination in the light of there being no breach of contract.

There was no error in the Employment Tribunal's finding of direct race discrimination under Race Relations Act 1976 s l(2) while dismissing his claim of victimisation under s2 arising out of the same facts. This was as the Employment Tribunal found the result of the burden of proof shifting for race discrimination but not for victimisation claims, and the different grounds upon which liability would be founded i.e. race discrimination and having made an allegation of race discrimination respectively. Madden [2005] IRLR 46 CA applied.

Although the Claimant's representative did not respond one by one to the criticism of lack of reasons, any was insufficient to undermine the discharge of the Employment Tribunal's duty to give reasons.

.


 


HIS HONOUR JUDGE McMULLEN QC

1.                   This case is about the different questions raised in claims of race discrimination and victimisation. 14 separate claims were made of which four were upheld. 14 separate victimisation claims covering the same factual territory were all dismissed. Two others claims were dismissed or withdrawn. A claim for unlawful deductions from pay was made. In fact the number of claims is higher than that simple arithmetic since they are made against multiple Respondents. The judgment represents the views of all three members who pre-read the relevant material and have been directed to other papers since. We will refer to the parties as the Claimant and the Respondents unless it is necessary to distinguish them in respect of any specific subject. They are Serco and five individuals managers.

Introduction

2.                   It is an appeal by the Respondents in those proceedings against a judgment of an ET sitting over seven days including a day in Chambers in Leeds. The Chairman was Mr H G Forrest and the judgment was registered with reasons on 22 June 2005. The Claimant and Respondent were represented, as here, by respectively Mr Erskine Grant, an experienced lay representative, and Mr Adrian Lynch QC. The Respondents denied the claims which we set out above. The Tribunal decided as follows:

"1. Mr Quarshie was racially discriminated against contrary t6 Section 1 of the Race Relations Act 1976 by Serco Limited, Mr Ian Irving, Mr John Whitefoot, Mr Mark Pattison, Mr Stephen Pearce and Mr Steve Humphreys. Specifically, in relation to the particular matters complained of, we find that Mr Quarshie was discriminated against by Mr Irving by imposing a pay cut on him whilst he was suspended; by Mr Whitefoot and Mr Pearce by allowing his suspension to 3) continue for an excessive period; by Mr Pattison, Mr Humphreys and Mr Pearce by refusing Mr Quarshie an appeal on his grievance; and by Mr Whitefoot and Mr Humphreys over the length of time which it took them to process his grievance. Mr Quarshie's other complaints of racial discrimination are dismissed.

2. Mr Quarshie's complaints of victimisation are dismissed.

3. Mr Quarshie's complaint of unlawful deduction from wages succeeds, in relation to the reduction in his salary implemented with effect from 6 January 2003".

3.                   From now on, we will deal with the contract point and then focus on the full race discrimination claims which were upheld and the dismissal of the matching victimisation claims. Our account of the proceedings and of the history between the parties therefore does not cover matters not in issue on the appeal.

The issues

4.                   The Tribunal set out the 14 separate race discrimination claims and we will refer to a filleted version in due course. As to victimisation, this was based upon a series of protected acts which the Claimant contended were in place including his presentation of earlier Employment Tribunal claims. The essential issue was whether or not any action taken by the Respondents was on the ground that he had done a protected act. The issue on unlawful deductions from pay was whether there was a breach of contract.

The appeal

5.                   The Respondents appeal; there is no cross-appeal by the Claimant. Directions sending the appeal to a full hearing were given in Chambers by HH Judge Ansell. It included an invitation to the Chairman to supply his note of a short tract of the evidence. He has and we are grateful to him.
6.                   During the first day, an application was made (we must say, in response to a question by us) by Mr Lynch on behalf of the Respondents to amend the Notice of Appeal. It appeared to us during the course of his submissions that the juridical basis for pinning liability for race discrimination upon the five individual Respondents in this case had not been set out. It is common ground that the basis is s32 and s33 of the Race Discrimination Act 1975 which we cite in paragraph 14 below.
7.                   Broadly speaking, individual respondents in a discrimination claim are fixed with liability where they are employees of a respondent properly made a party to proceedings if they have aided and abetted knowingly the commission by the principal respondent of the unlawful act complained of. It is often the case that they are the sole reason why the principal employer respondent is in the proceedings anyway; but technically, separate proceedings may be launched based upon s33.
8.                   In this case, there was a case management discussion and intensive pre-hearing preparation at which the Respondents were represented by experienced solicitors and the hearing was set up as claims against all six of the Respondents. It would have been easy to indicate whether an issue arose in claims pursuant to s33 against the individual Respondents, but it did not. Section 33(2) includes a deeming matter so that a claimant who seeks relief against both the employer and managers may do so by citing them and they are deemed, where the employment relationship exists and where action is taken in the course of employment, to have been aiding and abetting in the commission of the wrongful act.
9.                   Mr Lynch sought to amend the Notice of Appeal so as to criticise the Employment Tribunal for erring in law in failing to make out the legal basis upon which liability was fixed upon the individual Respondents. We reminded him of the very long sequence of what the Court of Appeal has described as "the EAT's own jurisprudence" when considering whether a new matter not ventilated at the Employment Tribunal should be raised here: for recent exposition, see my judgment in Leicester County Council v Unison [2005] IRLR 920, and the Court of Appeal's treatment of circumstances very similar to our case in Khan v Royal Mail plc [2006] EWCA Civ 2.
10.               The upshot is that only an exceptional case will attract the discretion to allow a new point to be raised. Mr Lynch's argument is that if we were to entertain the point, there would be no new material. It is a short clear point; the issue is simple: whether or not there was knowledge of aiding and abetting. It is contended that there is considerable prejudice to the five individual Respondents by their being fixed with liability personally and there is no prejudice to the Claimant. The reason why that submission is made is because a concession was made to us that in no circumstances would any of the five be required to meet any liability for a compensatory award made by the Employment Tribunal.
11.               Mr Grant resisted the application. Mr Quarshie had brought proceedings knowingly against the five individuals and he was entitled to an adjudication. In our judgment, it is not correct for us to exercise our discretion in favour of allowing the amendment. The case has been in the hands of skilled advisers throughout. We reject the criticism expressly made by Mr Lynch that it was appropriate for the Tribunal itself to have taken the point when it was blessed with the attendance of leading Counsel in this field who had not made the point. It is, as he accepts, a defence which is available to an individual respondent and, in our judgment, it is not for the Employment Tribunal to offer a defence to a respondent who has decided, with proper legal representation, not to take it.
12.               The approach to prejudice, it seems, operates in favour of the Claimant. The five individual respondents, if they did not already know, now have the security of knowing that they will not be at risk for any award that a Tribunal would make of compensation to be paid to the Claimant. They will, of course, suffer the stigma of having a finding made against them in Employment Tribunal proceedings, but that is a matter which could have been dealt with at an earlier stage and was not.
13.               The issue of knowledge is a highly fact-sensitive matter – see, for example, the way in which this Employment Tribunal dealt with the question of the individual Respondents' knowledge of the Claimant's litigation history. The matter would undoubtedly have to go back to the Employment Tribunal before being restored to us, otherwise the Claimant would be deprived of an adjudication by a proper body of his claim that these individual Respondents had committed the unlawful act. We see no reason to exercise our discretion exceptionally in favour of this application and it is refused.

The legislation

14.               The relevant provisions of the Race Relations Act 1976 are as follow:

"1 Racial discrimination

(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;

….

2 Discrimination by way of victimisation

(1) A person ("the discriminator") discriminates against another person ("the person victimised") in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has

(a) brought proceedings against the discriminator or any other person under this Act; or

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act; or

(c) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person; or

(d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act,

4 . Applicants and employees

(1) ….

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

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

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

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

32 Liability of employers and principals

(1) Anything done by a person in the course of his employment shall be treated for the purposes of this Act (except as regards offences thereunder) as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval.

33 Aiding unlawful acts

(1) A person who knowingly aids another person to do an act made unlawful by this Act shall be treated for the purposes of this Act as himself doing an unlawful act of the like description.

(2) For the purposes of subsection (1) an employee or agent for whose act the employer or principal is liable under section 32 (or would be so liable but for section 32(3)) shall be deemed to aid the doing of the act by the employer or principal

54A Burden of proof: employment tribunals

(1) ….

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

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

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

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

15.               It is common ground that the burden of proof is reversed in claims of direct race discrimination and indirect race discrimination but not in claims of victimisation. We are dealing here with direct race discrimination under s1(1)(a) and victimisation under s2. Different regimes therefore apply to the trial of such issues as a result of the introduction of s54A. The Tribunal directed itself by reference to the relevant provisions and there is no dispute as to its correctness in doing so. It also considered the leading authorities which it cited in is judgment and to which we will return.

The facts

16.               The Tribunal described the parties as follows:

"1. The Claimant: Mr Quarshie's racial and ethnic origins are black African. Mr Quarshie had been employed by the Education Department of Bradford Council since 1988.

The First Respondent: Bradford's Education Department had been transferred to Serco Limited in 2001. Under the Transfer of Undertakings (Protection of Employees) Regulations Mr Quarshie transferred his employment to Serco Limited. For the purposes of acting as Bradford's Local Education Authority, Serco Limited traded under the name of Education Bradford. Serco Limited is a large company with over 36,000 employees trading in a number of countries, providing services to local and national governments. It was accepted that Serco Limited were liable under Section 32 of the Race Relations Act for any acts of discrimination which had been committed by the five individual Respondents in the course of their employment. Serco Limited did not seek to take advantage of the statutory defence provided by Section 32(3).

The individual Respondents to Mr Quarshie's claims were:

Second Respondent: Ian Irving, Education Bradford's Director of Change, who worked for Serco from 15 April 2002 and left on 31 May 2003. During that period, as a Director of Education Bradford, he was responsible for Mr Quarshie's work, and during the latter part of the period Mr Quarshie reported directly to him.

Third Respondent: John Whitefoot was employed by Serco Group Limited as Head of Employment Relations. He was based in London, at Group Head Office, and was brought into Education Bradford to assist with the conduct of an investigation into Mr Quarshie's grievance.

Fourth Respondent: Mark Pattison, the Managing Director of Education Bradford. He had joined Serco to run the Education Bradford contract, and had worked for Serco for three years.

Fifth Respondent: Mr Stephen Pearce was employed within Education Bradford as a Human Resources Manager. Like Mr Quarshie, he had previously worked for Bradford Council, in his case since 1971, and was transferred over to Education Bradford in August 2001. He was the only one of the Respondents who had previously worked for Bradford Council.

Sixth Respondent: Mr Steve Humphreys was employed as Operations Director within Education Bradford. His main involvement with Mr Quarshie came after February 2004 at a time when Mr Humphreys held the overall responsibility for Human Resources in Education Bradford, following Mr Irving's departure".

The Claimant is black and has been engaged by the Respondent's predecessor since 1988, a local education authority. Serco took over the functions of Bradford Council's local education authority in 2001.

17.               The contract of employment includes a reference in a disciplinary policy to suspension. During a period of disciplinary suspension (which is not, in itself, or to be treated as, a punishment) there is this provision as to payment:

"Payment of full salary during periods of suspension shall be regarded as the normal procedure…"

It also has a formal complaints procedure which sets out a detailed framework in which complaints may be raised (usually known as grievances) by individual employees who also have a right of appeal. In 1993 and in 1997, the Claimant brought two claims of race discrimination against his then employer, each of which was dismissed.

18.               Mr Irving commenced employment in April 2002. On 5 August 2002 the Claimant was allocated work as manager of the Central Services Payroll Team within the HR Department. Mr Weir of that department wrote to him confirming

"the extension of your current role to include the management of the Central Services Payroll with effect from 5 August 2002. Initially this appointment will be for a temporary period of three months and subject to review afterwards".

The new appointment was at a higher salary. Relations began to deteriorate between the Claimant and his managers and on 9 December 2002 an angry meeting was attended by the Claimant, Mr Irving and Mr Weir during which the Claimant raised a number of concerns. The next day, he was suspended by Mr Irving, giving a number of reasons. During the period of his suspension, the Claimant sought to activate the relevant procedures. The Human Resources Manager wrote to the Claimant on 23 December 2002 confirming that:

"the extension for your role in the management of the Central Services Team initially for a period of three months has now come to an end. You will recall that Ian Irving referred to this issue at a meeting with yourself recently. Therefore with effect from 6 January 2003, you will revert to your [original] grade …".

19.               During the course of the next 18 months or so, steps were taken with a view to resolving both the Claimant's grievances against the Respondents and the issues which the Respondents raised about the Claimant. It is not necessary for us to go into detail. The Claimant had the assistance of an experienced representative, Dr Asher John-Baptiste. On 26 May 2004, he wrote indicating an appeal against the action taken by Serco, in particular the upshot of a report written by Mr Whitefoot (a person introduced in order to seek to investigate matters). The letter itself criticises several of the Respondents' actions. A number of meetings was conducted. On 5 August 2004, following advice, Mr Humphreys wrote to the Claimant indicating that matters would be taken no further but he could appeal. It is fair to say that overtures were made by the Respondent to seek the Claimant's agreement to put the matter back into a formal procedure for, as can be seen, there has been considerable drift, unacceptable to everybody in this case.
20.               The Claimant decided to complain to an Employment Tribunal on 28 October 2004 about all of those issues. He continues to work for Serco but is, we understand, on sick leave; Mr Irving has gone.
21.               The Tribunal found that there was a breach of contract; it described it as a "pay cut". This was the first issue. It was determined under the provisions of the Employment Rights Act 1996 section 13 relating to unlawful deductions from pay. The contract had been broken when, on 6 January 2003, the Claimant's suspension was continued at his substantive post salary rather than at the pay which obtained during the period when he was temporarily upgraded. The Tribunal held that the words "full salary" applied to the payment in place at the time of the suspension.
22.               Turning to race discrimination, part of that issue fell into the first claim. Was the pay cut an act of discrimination? The Tribunal decided that it was, applying correctly the burden of proof under s54A. It next considered whether the suspension had continued for too long and came, not unexpectedly, to the conclusion that it had. Having again correctly applied s54A, it decided that the actions of the Respondents constituted race discrimination. It then turned to the issues relating to how his grievance was treated ie that there was no appeal. Again, applying the relevant section and crying out for an explanation from the Respondent, the Tribunal decided that the Claimant was treated less favourably on grounds of race than a comparable person would have been treated. Finally, as to the length of time during which the grievance took to be processed, a similar conclusion was reached.
23.               It then descended upon the victimisation claims. It dismissed 10 of them summarily and considered in detail the four which corresponded to the four findings it had made in the Claimant's favour in respect of race discrimination. It dismissed them all for reasons which we will come back to when we look contextually at the Tribunal's approach.
24.               Having gone through those two sequences of findings, the Tribunal (as it was required to do) stood back and considered the findings as a whole and said this:

"78. After reaching the detailed conclusions above in respect of the complaints of racial discrimination and victimisation, we have stood back and considered our findings as a whole. On the face of it, there is a marked contrast to our findings on the victimisation claims, none of which succeed, whereas several of the race discrimination claims have succeeded. Given our finding that the individual respondents did treat Mr Quarshie on some occasions less favourably because of his race, does not that suggest that they may also have been motivated to every count, and from racism on many of the complaints, is it not inconsistent to find that the respondents are influenced by race sometimes, but not all the time? Mr Lynch urged us to accept that people acted consistently; and since we should clearly reject some of Mr Quarshie's evidence which was simply not credible (the suggestion that Mr Irving had manufactured an entire sequence of entries in his notebooks for example), we should reject his complaints, preferring the evidence from the respondents. We do not feel that such an all or nothing approach is called for. The difference in our findings on race discrimination as opposed to victimisation is largely accounted for by the different approach to the evidence we are constrained to take by the different burden of proof which applies to the two categories. As for our differing findings on the complaints of race discrimination, some complaints are made out on the evidence, some are not".

It then proceeded to tell the parties what its overview was. Serco and each of its managers demonstrated incompetence, bad management, drift, and inattention to its own codes and procedures. Indeed, Mr Lynch, on their behalf, asserts these findings as part of his case that they are the reason for the treatment of the Claimant which, while bad management, is not race discrimination.

25.               The Claimant, too, was criticised by the Tribunal in that in the early stages, prior to the relevant events, he exaggerated his case and his approach was disproportionate. But from about the end of 2002 those criticisms ceased.

The submissions

26.               Mr Lynch submitted that the Tribunal had erred in law in a number of respects. First on the pay cut, the Tribunal made an error of construction. Further, the Tribunal ought to have found that the claim was out of time.
27.               As to the four claims of race discrimination which succeeded, his dominant theme, as he put it, was inconsistency as between the findings on race discrimination and the findings on victimisation. He acknowledged the burden of proof was different and that a Tribunal could, and many Tribunals do, make different judgments according to the particular section upon which they are operating. Race discrimination was not made out in these cases because of the comparison with the findings which the Tribunal had made covering the same territory under the victimisation head. In summary, the approach of an Employment Tribunal is to look at the subjective intention, conscious or unconscious, of the decision maker. The shift in the burden of proof in s54A does not substantively alter the essence of the issue before the Employment Tribunal. The standard of proof is the same - it is the balance of probability. The Tribunal must consider all of the evidence when it makes its judgment as to whether there was discrimination or victimisation. Generally speaking in these proceedings, the explanation for the treatment of the Claimant is that management let matters drift and were incompetent rather than that they were discriminating on the grounds of race.
28.               We were reminded that it is the duty of a Tribunal to make findings. The second theme is the failure to make a number of findings, it is said, which were crucial including, for example, the attitude of the Respondents to race discrimination – that is that they took issues of race discrimination seriously. A comparative analysis between the language used in the findings on victimisation indicated that the Tribunal had acted inconsistently and inconsistency is an error of law.
29.               On behalf of the Claimant, Mr Grant accepted that, on the contractual issue, a question of law was raised. In respect of the four race discrimination claims, he pointed out that the approach of the Tribunal is different by statute since, as we have made clear, s1 attracts s54A and s2 does not. The Tribunal had made perfectly explicable findings in its race discrimination section and these were not undermined by the findings on victimisation. In short, where a claim arises of victimisation, the old law in King v Great Britain China Centre [1992] ICR 516 applies where once a prima facie case has been made, a tribunal may draw an inference; whereas when an issue arises to which s54A applies, the word "may" is replaced by "must" and this is an explanation for the way in which different findings were made and correctly made, he says, by this Tribunal.

The legal principles

30.               The legal principles to be applied in a case such as this appear to us to come from the following authorities.
31.               First on the pay cut point, the use of the words "full salary" means what is contractually due: see the combined effect of Railway Clearing v Druce [1926] 135 LT 417 HL, Adams v The Liverpool Corporation [1927] 137 LT 396 CA and Sutton v Attorney General [1923] xxxix TLR 294 HL . Generally speaking, evidence of a practice in relation to any particular employment matter will not be admissible unless the terms requiring, for example, incorporation or implication as a result of custom and practice are met: see Young v The Canadian Railway Company [1931] AC 83 HL. Although s27 of the Employment Rights Act 1996 admits of matters which are not strictly contractual, the impact is that there must be some entitlement to the pay claimed.
32.               On race discrimination, in The Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830 at paragraph 29, Lord Nicholls said this:

"29

(3) 'by reason that'

Contrary to views sometimes stated, the third ingredient ('by reason that') does not raise a question of causation as that expression is usually understood. Causation is a slippery word, but normally it is used to describe a legal exercise. From the many events leading up to the crucial happening, the court selects one or more of them which the law regards as causative of the happening. Sometimes the court may look for the 'operative' cause, or the 'effective' cause. Sometimes it may apply a 'but for' approach. For the reasons I sought to explain in Nagarajan v London Regional Transport [1999] IRLR 572, 575-576, a causation exercise of this type is not required either by s.1 (1 )(a) or s.2. The phrases 'on racial grounds' and 'by reason that' denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact".

33.               In dealing with a discrimination claim, the approach in Bahl v the Law Society & Ors [2004] IRLR 799 CA is to be followed, particularly that in paragraph 114 which provides:

"114 The EAT, in our judgment, was right to point out in paragraph 124 that it will only be in a limited class of case that it will be possible to make good inadequate reasoning in this way. In English this court was able to formulate the central issue in one of the cases it was considering by reference to the submissions and evidence (see paragraphs 42 and 43 of the judgment). In a case such as the present where there were disputed questions of law, fact and inference, the mere fact that those disputed matters were referred to in the lengthy 8c'os!ng submissions does not indicate the ~T's reasoning in resolving those issues the parties were entitled to know what conclusions were reached on each disputed question and why. Mr de Mello relied on the fact that the parties had drawn the attention of the ET to various passages in Zafar and that the ET had itself referred to that case as the starting point in a case such as the present. However, the parties were not in agreement before the ET as to how the Zafar test should be applied and it is worthy of note that the only passage cited from Zafar by the ET (see paragraph 5.14) did not include the passages containing the ratio of the case to which we have referred in paragraph 98. It is impossible to conclude from the submissions made to the ET that the ET must have reasoned correctly in accordance with Zafar. Similar difficulties apply to drawing inferences of what the ET must have concluded from the evidence adduced before the ET when so much was in controversy.

34.               It is clear from the judgment of the House of Lords in Glasgow City Council v Zafar [1998] ICR 128 that subject, of course, to the burden of proof shifting in certain cases, the indication of unfairness such as is relevant to unfair dismissal does not illuminate a discussion of race discrimination (see, for example, Lord Browne-Wilkinson at paragraph 3). To establish discrimination it has to be shown that the complainant had been treated by the person against whom discrimination was alleged less favourably than that person treated or would have treated another on racial grounds. The conduct of a hypothetical reasonable employer or the fact that the respondent employer had acted unreasonably is irrelevant.
35.               The approach in a case where the burden of proof has swung is set out in the annex to the judgment of the Court of Appeal in Igen Limited v Wong [2005] IRLR 258.

"(4) In deciding whether the claimant 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 'could' in s.63A(2). At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.

(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.

(7) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with s. 7 4(2)(b) of the SDA from an evasive or equivocal reply to a questionnaire or any other questions that fall within s. 74(2) of the SDA.

(8) 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) of the SDA. This means that inferences may also be drawn from any failure to comply with any relevant code of practice.

(9) Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent.

(10) 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.

(11) 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.

(12) 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 a ground for the treatment in question.

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

36.               It was held in Madden v Preferred Technical Group [2005] IRLR 446 CA, admittedly a pre- s54A case, that there can be different approaches to, on the one hand, discrimination and on the other, victimisation (as this case illustrated). In King v Great Britain China Centre Limited, the well-known guidance of Neill LJ indicates, as we have suggested above, that it is open to a Tribunal to draw an inference when primary facts have been found.

Conclusions

37.               Before applying the above principles to the circumstances of this case, the first issue is whether this judgment is defective for want of reasons. A powerful case has been made by Mr Lynch indicating that the Tribunal did not make findings on certain issues. Indeed, Mr Grant did not respond to any of them. However, we have looked carefully at the way in which these criticisms are made and in the context of the result of this case, the dismissal of so many of the Claimant's multiple claims, we do not consider that any of these matters constitutes singuly, or in aggregate, a sufficient ground to doubt the correctness of those parts of the case which we uphold. They are not substantial and we are satisfied that the Tribunal made sufficient findings for us to understand the basis upon which it was operating. A tribunal is not obliged to make findings on every piece of evidence.
38.               We turn to the finding on unlawful deductions. We agree with Mr Lynch that this is a matter of pure construction of the words "full salary". We are helped by the authorities we have cited to understand what full salary means. In our judgment, the existence of the disciplinary code does not trump the contractual right of this employer to enter into a temporary arrangement for upgrading (reviewable at the end of a certain period), as a matter of contract. Life must go on during a suspension and the other powers which management have by reason of this contract are not affected by the indication to the Claimant that full salary will be paid. The correct approach is that disciplinary suspension will be imposed usually on terms that the Claimant's contractual full salary will be paid. If, for one reason or another, the Claimant's contractual salary changes, that will go with it; for example, if he were subject to a service or age related increment, that would be regarded as a change in his full salary and he would get the benefit of it when suspended. The converse is also true. If, for some reason found in the contract, the rate of pay may be reduced, then there is no breach. Thus, the reduction in pay from what had been temporarily paid until it was reviewed, was not a breach of contract when it occurred on 6 January 2006.
39.               In any event, we accept Mr Lynch's second point that a claim should have been made within three months of that date pursuant to the Employment Rights Act s23(2) and it was not. No account has been given as to why discretion should have been exercised. Thus, for both of those reasons, this ground of appeal succeeds.
40.               We then turn to the way in which that issue was played out in race discrimination terms. The Tribunal decided that there had been a breach of contract. With respect, we consider that the Tribunal is wrong and that its approach to this issue is seriously affected by its consideration that management was engaged in a breach of contract. The headline "pay cut" is replicated in many other places in the text. The introduction to the discussion of whether or not there was race discrimination taking the form of a reduction in pay is prefaced (see paragraph 30) with the assumption that there has been a breach of the Respondent's disciplinary policy. This form of words, or one similar to it, occurs at least 10 times in this judgment. There is no doubt that the Tribunal was affected by what it appreciated to be a breach of contract, causing a loss to the Claimant on this footing of something like £1500 a year. This is an error. The Tribunal on remission must now reconsider its finding in favour of the Claimant according to our direction that there has been no breach of contract.
41.               The second part of Mr Lynch's attack on this finding is based upon what is said to be the inconsistency when matched against the finding on victimisation (at paragraph 71). If the Tribunal approach remained the same now that this is not a breach of contract, we would hold that there is no inconsistency in its finding of victimisation. The language is markedly different. We have been shown a passage which illustrates it:

"The angry meeting on 10 December and the confrontation the next day may well have persuaded Mr Irving to implement the decision sooner rather than later".

That flexibility is consistent with the more generous approach which existed while the burden of proof did not shift. As can be seen, the rather tentative use of the words "may well" differs from the firm language used in order for an employer to satisfy the shifted burden of proof when it is in play under s1 and s54A. We see no error by comparison of those two different findings.

42.               As to the complaint about the suspension itself, which essentially is as to the length of time, the Tribunal's finding on this is not seriously challenged. Indeed, it has to be said that without reference to the victimisation parts of this Judgment, there is no serious attack on the free-standing findings of race discrimination. Mr Lynch's case is that when compared with the victimisation parts, the two cannot stand together. In our judgment, our approach is the same to this second ground for the Tribunal said this:

"73. On balance, and with some hesitation, the Tribunal decline to draw the inference that the Respondents were influenced, consciously or not, by the fact that Mr Quarshie had made that allegation of racism. The Respondent's explanation is of inadvertence and incompetence; it is unsatisfactory, but that does not mean it may not be true. The burden remains on Mr Quarshie to persuade us that he was victimised and he has not discharged it in this instance".

Again, the use of the word "may" is instructive and is consistent with the more generous approach to employers where the burden of proof does not shift. Thus, we reject the contention that there has been an error by the Tribunal in failing to apply its findings consistently.

43.               As to the complaint about the lack of an appeal against the grievance, the Tribunal's answer is as follows:

74. …..The Respondents took complaints of racism seriously, as their appointment of Mr Whitefoot shows. The process had been a long and frustrating one, principally for Mr Quarshie but no doubt also to some extent for the Respondents. In the circumstances, applying the burden of proof, we decline to draw the inference. Mr Quarshie has simply failed to persuade us on the evidence that the Respondents acted as they did, in relation to the appeal, because he had earlier complained about racism".

As can be seen, the Tribunal blesses these Respondents with a serious concern to deal with complaints of racism. But the Tribunal's approach in acquitting the Respondents of victimisation is, as we can see from the above passage, directly related to its decision not to draw an inference. It was open to it to do so. That is consistent with the guidance in King and the more generous approach therefore in s2 claims. No error has occurred.

44.               Consistently with our own judgment, we take the same view of paragraph 75 which is the Tribunal's finding on victimisation over the length of time of the whole grievance process. The Tribunal said this:

"75. We set out above the length of time involved, and the reasons and explanations given for the lengthy delays which occurred. From the primary facts, we could draw an inference that Mr Quarshie was being less favourably treated in relation to the investigation by delaying it, because he had earlier complained about race. In one sense, of course, a reason why the grievance took so long to investigate was precisely because it was an investigation into allegations of racism, which is a serious allegation especially against senior members of management. However, we can detect no evidential basis for suggesting that the Respondents were trying to victimise, punish, or take less favourable treatment against Mr Quarshie in any way because was an allegation of racism that he had raised. Accepting that the burden of proof remains on Mr Quarshie to establish his case, we do not think he has do e so on this point and decline to draw the inference that management were influenced by a desire to victimise Mr Quarshie".

45.               Again, we hold that no inconsistency emerges. The different finding is entirely explicable on the basis that there is different forensic treatment under these two sections, driven by the application of s54A, and on the basis that the question is different. For race discrimination, the Tribunal is looking to see whether the treatment has been on the grounds of race. For victimisation, it is whether it is on the grounds that the Claimant had done a protected act, as the Tribunal put it in its paragraph 75 above, whether the Respondents were victimising, punishing or taking less favourable treatment against him because of an allegation of racism. Thus, as a matter of logic and statutory application, it is perfectly permissible to have different results under the two sections.
46.               These three substantive grounds on race discrimination are dismissed, and one allowed. It follows that the Tribunal will be asked to consider the question of the "pay cut" against our direction that there was no breach of contract and to make a fresh decision upon it. It will be able to do so by further submissions from the parties. We do not appreciate that there will be any evidence on this. The parties will be at liberty to put in further submissions and the Tribunal will make a judgment on it. Directions will be given by the Employment Tribunal for handling the remission.
47.               We would very much like to thank both Mr Lynch and Mr Grant for the expeditious way in which they have conducted the proceedings within time. The appeal is allowed in part. Permission to appeal is refused [reasons not transcribed].