United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Ms Jane Russell (of Counsel) Instructed by: Messrs ELS Solicitors Orion House 104-106 Cranbrook Road ILFORD ESSEX IG1 4LZ
For the Respondent	Mr Richard O'Dair (of Counsel) Instructed by: Messrs SAS Lawyers 30 Greek Street Stockport Cheshire SK3 8AD


 


SUMMARY

The Appellant's race discrimination claims, based primarily on the Respondents' failure to promote him over many years, failed, as did his constructive dismissal claim. On appeal against the Tribunal's decision on the discrimination claims, held that the Tribunal were entitled find as fact that when the managers post the Appellant said he should have been promoted into was vacant, the Respondents advertised the vacancy internally and externally, that the Respondent had a policy of appointing on formal application only, that the Appellant did not formally apply and that the appointees did. The appointees were, therefore, not like for like comparators; and the Appellant would have fared no better in the case of hypothetical comparators. The Tribunal's decision that the Appellant had not shown treatment from which an inference of discrimination could be drawn was upheld. Matthews v Kent & Medway Fire Authority and Rihal v London Borough of Ealing distinguished.

HIS HONOUR JUDGE BURKE QC

The History

1. This is an appeal against the judgment of the Employment Tribunal sitting at London (central), chaired by Miss Lewsey with Miss Chung and Ms Scorer as lay members and sent to the parties with written reasons on 12 September 2005. By that decision the Tribunal rejected the claims of the Claimant, Mr Famy, that he had been constructively unfairly dismissed by the Respondents, Hilton UK Hotels Ltd ("Hilton") and that he had, at the hands of Hilton and their predecessors, been the victim of race discrimination. Mr Famy now appeals against the Tribunal's dismissal of his race discrimination claim; there is no appeal against the rejection of his unfair dismissal claim.
2. Mr Famy, who is of Filipino ethnic origin, was employed in June 1984 as Second Head Barman at the Waldorf Hotel in the Aldwych, Central London. His role was also described as Bar Supervisor and as Assistant Bar Manager; his role was as Bar Supervisor, responsible as long as there was one to the Bar Manager. It was common ground that, until 2004, Mr Famy worked in that capacity at one of the Waldorf's bars, called The Club Bar. The hotel had various operators over the period of Mr Famy's employment; according to the Tribunal's findings, in January 2004 Hilton took over the hotel from Le Meridien. It appears to have been assumed by both parties and by the Tribunal that, at each change in the identity of the hotel's operator, there was a transfer of Mr Famy's employment under the Transfer of Undertakings Regulations; and although Hilton were only the employers of Mr Famy for the last 11 months of his employment at the Waldorf, it was not in dispute that Hilton would be liable for any discrimination against Mr Famy during the course of his entire employment which the Tribunal found established.
3. It was Mr Famy's case that, although from time to time he acted up as or performed the duties of Bar Manager in periods where there was no Bar Manager for the Club Bar, he remained in his role as Bar Supervisor and was never promoted to the position of Bar Manager, although that position became vacant on numerous occasions between 1993 and 2004. He claimed that, during that period, he had been discriminated against on the grounds of his race on seven occasions in that he was not promoted to the position of Bar Manager when there was vacancy and, on 6 of those occasions, in that someone else was appointed to that position, the appointee being in each case a white European.
4. In 2004 Hilton, as the new operators of the hotel, continued a multi-million scheme for refurbishment of the hotel which was already underway. During the period of refurbishment, from November 2002, the Tribunal found that very little food and beverage provision took place in the hotel. As part of the scheme Hilton decided to close the Club Bar (the area of which was to be used for other purposes) and to set up an entirely new concept for the provision of food and drink called the "Homage" concept, which was to include three bars, namely a cocktail bar, a restaurant bar and a champagne bar, and a restaurant and a patisserie. The Tribunal found that Hilton advertised both externally and internally for a Bar Manager for the Homage concept. The internal advertisement was placed outside the canteen and adjacent to the staff entrance. Mr Famy did not apply. An external applicant, Mr O'Reilly, was appointed.
5. On 15 September 2004, after a meeting on the previous day, Ms Spittlehouse, then the hotel's Human Resources Director, informed Mr Famy that, with effect from 2 October 2004, he would be transferred from the Club Bar, which was to be closed, to Homage, working as a supervisor "between the three bars" and that training for the new concept would start in the following week. The Club Bar closed on 3 October 2004; the Homage opened on the following day; but Mr Famy sent in a sick note for two weeks which referred to a stress related illness.
6. On 12 October Mr Famy put in a grievance letter complaining that he was being transferred from the Club Bar to the restaurant bar and claiming constructive dismissal and race discrimination. The grievance was progressed; there was a grievance meeting on 20 October; Mr Famy was not happy with the results; he appealed; in the course of the appeal process Mr Famy was, the Tribunal found, told that he could work specifically in the Homage cocktail bar if he wished to and that his position would be the same; but, after further exchanges which we need not set out, Mr Famy resigned on 2 December, complaining that he continued to be overlooked for appointment to Bar Manager. His claims were presented to the Employment Tribunal on 7 January 2005.

The Constructive Dismissal Decision

7. It is not necessary for us to go into details of the Tribunal's decision upon the constructive dismissal claim; but some reference to the Tribunal's reasons for their rejection of that claim is necessary because Mr Famy relied on three breaches of contract on the part of Hilton, namely (1) failing to promote Mr Famy to the position of Bar Manager between April 2000, when a vacancy arose, and September 2004 when the Homage Bar Manager's job was advertised (2) demoting Mr Famy to the post of supervisor in September 2004 and (3) failing properly to address his grievance presented in October 2004; each of these allegations also constituted or was put forward as a complaint of race discrimination.
8. The Tribunal found in relation to those three allegations of breach of contract as follows:-

(1) When the Club Bar Manager, Mr Brown, left in April 2000 it was decided not to replace him. Although Mr Famy applied for promotion to Bar Manager on this occasion, there was no vacancy (paragraph 34).

(2) The job to which Mr Famy was to be re-allocated when the Club Bar closed and the Homage opened was that of Bar Supervisor; that had been his previous role; he was not demoted (paragraph 35).

(3) Hilton dealt with Mr Famy's grievance properly and in a constructive way (paragraph 36).

(4) Accordingly there was no breach of the implied term of trust and confidence. As we have said, there is no appeal against these conclusions.

The Discrimination Issues

9. The Tribunal identified the issues which arose pursuant to the race discrimination claim at paragraph 2.2 of their judgment. There is no challenge to that paragraph. Those issues were whether there had been race discrimination or, as the Tribunal put it, Hilton had treated Mr Famy less favourably than the actual comparator relied upon (they actually referred to one of those comparators but no point is taken as to that) or a hypothetical white comparator in the following ways:-

(1) by failing to promote Mr Famy on seven occasions between 1993 and 2000;

(2) by not promoting Mr Famy but appointing someone else on 6 occasions between 1993 and 2004

(3) the first 5 of each sub-allegation under these 2 heads are related to the same events e.g. the first sub-allegation under (1) was a failure to promote Mr Famy after Michelle Soma left in 1993; the first allegation under (2) was not of promoting Mr Famy when "Peter" was appointed Bar Manager in 1993, he having been Michelle Soma's successor;

(4) by demoting Mr Famy and changing his place of work in September 2004;

(5) by not inviting Mr Famy to a 20 year continuous service ceremony in June 2004;

(6) by failing to address and redress the grievances presented in October 2004.

10. There arose, inevitably one might say, a further issue which applied to all matters occurring prior to three months before the presentation of the claim, namely whether they formed part of a continuing act i.e. an act extending over a period and falling within section 68(7)(b) of the Race Relations Act 1976 or, if not, whether it was just and equitable to extend time in relation to such matters.

The Tribunal's Conclusions on Race Discrimination

11. The Tribunal set out the relevant law in considerable detail at paragraphs 39 to 45 of their judgment. Having done so, they next considered whether the acts complained of which occurred prior to 8 October 2004 were out of time or whether they formed part of a continuing act. They concluded that they did not form part of a continuing act, at paragraph 47 of their judgment. They recorded at paragraph 48 that no argument had been put forward that it was just and equitable for time to be extended; and, therefore, all matters which predated 8 October 2004 were out of time.
12. Only the complaint about the handling of the grievance related to events after that date. However the Tribunal went on, lest they be wrong on the time issue, to consider each of the allegations of race discrimination in turn as if they had been in time. At paragraphs 50 to 59 they set out their reasons for rejecting those allegations individually; at paragraph 60 they said this:-

"We have also considered the complaints of race discrimination cumulatively as we are required to do under the guidelines in Anya v University of Oxford. There is nothing from which we can infer that the treatment received by Mr Famy was because of his race. Mr Famy did not apply for any of the posts that he sought and it was his assumption that he should be promoted simply because of experience without applying that led to his unhappiness with the Respondent. He has failed to demonstrate any evidence from which the Tribunal can infer race discrimination."

The Notice of Appeal

13. The Notice of Appeal contends generally that the Tribunal misdirected themselves in law or were perverse; specific grounds are set out, namely:-

(1) Jurisdiction. This ground goes to the Tribunals decision that there was no continuing act within section 68(7)(b) of the 1976 Act.

(2) Hypothetical comparator. It is asserted that it was incumbent upon the Tribunal to raise the issue of a hypothetical comparator in circumstances where the Claimant had chosen an unsuitable actual comparator; by implication it is contended that the Tribunal did not consider the case of the hypothetical comparator where it was appropriate to do so.

(3) Failure to promote. It is asserted that the Tribunal erred in law in concluding or perversely concluded that Mr Famy was not treated less favourably in relation to promotion on the various occasions between 1993 and 2004 which were examined in the evidence.

(4) Demotion to Supervisor. This head was abandoned by Ms Russell during the course of the hearing.

(5) Burden of proof. It is asserted that the Tribunal failed to apply the burden of proof correctly and ought to have considered whether a prima facie case of discrimination was made out without reference to any explanations given by Hilton. Reliance is also placed on a Race Relations Act questionnaire.

14. We propose to address ground 3, failure to promote, which took up the lion's share of the extensive argument before us, first; we will then consider ground 2 and ground 5. For reasons which we will explain, we propose to address ground 1 last.

Preliminary Point

15. We have already pointed out that only one of the allegations of race discrimination is said to have occurred after 8 October 2004, namely the allegation of failure on Hilton's part to address and redress Mr Famy's grievance. The Tribunal found against Mr Famy upon that allegation. If the Tribunal's conclusion upon that allegation is not successfully attacked on appeal, it seemed to us at the very least arguable that it could not matter whether the Tribunal were or were not in error of law in respect of any of the other allegations of race discrimination; for section 68(1) of the 1976 Act provides:-

"68 Period within which proceedings to be brought

(1) An employment tribunal shall not consider a complaint under section 54 unless it is presented to the tribunal before the end of--

(a) the period of three months beginning when the act complained of was done;"

Section 68(7) provides:-

"(7) For the purposes of this section—

(b) any act extending over a period shall be treated as done at the end of that period."

Let us assume for present purposes that all of the other allegations, from 1993 to the appointment of Mr O'Reilly in September 2004, contrary to the Tribunal's conclusions, formed part of an act extending over a period but that there was no discrimination after 8 October 2004; that continuing act would be treated as done at the end of that period i.e. in September 2004 and would have been completed more than 3 months before the presentation of Mr Famy's claim. Since it was not argued before the Tribunal and is not sought to be argued before us that it would have been just and equitable to extend the ordinary 3 month time limit pursuant to section 68(6) of the Act, all of the allegations of race discrimination prior to October 2004 i.e. other than that in relation to the grievance would arguably fail on the basis of a lack of jurisdiction.

16. In these circumstances it appeared to us to be very much in the interest of the overriding objective, set out in Rule 2(A) of the Employment Appeal Tribunal Rules 1993 as amended and, in particular, of the objective of dealing with appeals expeditiously and fairly and of saving expense that we should consider first and as a preliminary point the attack upon the Tribunal's conclusion as to the grievance process.
17. When we raised this point at the beginning of the first day of our hearing of this appeal (which, unhappily, because it became clear only on that day that one day of argument would not be sufficient, was separated from the second day by a period of over 3 months) Ms Russell informed us that it had always had been Mr Famy's case that there was a continuing failure to promote him which persisted up to the time of the grievance procedure, in the course of which Hilton could and should have recognised their mistake; Ms Russell did not contend that at that stage Hilton should have dismissed Mr O'Reilly who had been appointed on 28 September, some 3 weeks before the grievance letter; but she submitted that failure to promote was at the heart of the history from 1993, continuing into the grievance process.
18. Mr O'Dair on behalf of Hilton accepted that it might be difficult for us, if Mr Famy had relied upon discrimination in the handling of the grievance process, to treat that episode entirely separately from the earlier episodes relied on by Mr Famy; but, he pointed out, while the originating application was broad enough to include discrimination in the form of failure to promote in the handling of the grievance process (which was, we should point out, identified as an issue by the Tribunal at paragraph at 2.2.5 of their judgment) there had been no cross-examination of those handling that procedure on behalf of Hilton to suggest that they had been influenced by race. Ms Russell did not agree. In the absence of any agreed notes or Chairman's notes (to which we shall refer later), we could not resolve this issue; but Mr O'Dair did not submit that Mrs Russell should be shut out from running Mr Famy's argument in relation to the grievance procedure; he pointed to the very specific findings of fact made by the Tribunal in relation to that procedure which, he said, provided a total answer to any criticism.
19. Accordingly we resolved not to treat the arguments about the grievance procedure as a preliminary point or to decide upon them separately from the remainder of the appeal. It seems to us that, both logically and chronologically, those arguments should be dealt with after we have dealt with the arguments as to the earlier matters. That is why they will be addressed in the last section of this judgment.

Failure to Promote. General Points

20. The general approach of the Tribunal to the series of allegations that there had been a failure to promote Mr Famy on the specific occasions identified in paragraph 2.2.1 of the Tribunal's judgment and the appointment of somebody else on the specific occasions identified in paragraph 2.2.2 of the judgment to the position of Bar Manager (the first five of which occasions were the same in each case) was to ask themselves whether, on each occasion, Mr Famy had been treated differently from the actual comparator relied upon i.e. the person who was actually appointed. In so doing the Tribunal were correctly applying the principles set out in Igen v Wong [2005] (IRLR) 258; it was necessary for Mr Famy to prove on the balance of probabilities that there had been a difference in treatment between himself and an actual or hypothetical comparator from which it could be concluded, in the absence of an adequate explanation, that there had been discrimination on the grounds of race (we will come later in this judgment to the arguments about hypothetical comparators); and, of course, in deciding whether there had been such a difference in treatment the Tribunal were bound to have in mind section 3(4) of the 1976 Act which provides:-

"A comparison of the case of a person or a particular racial group with that of a person not of that group under Section 1(1) or 1(a) must be such that the relevant circumstances in the one case are the same, or not materially different in the other."

21. The Tribunal specifically directed themselves to the Igen v Wong principles and to section 3(4) of the 1976 Act at paragraphs 41 to 45 of their judgment.
22. At paragraphs 50 to 56 the Tribunal considered each of the specific occasions relied upon by Mr Famy. Central to the Tribunal's reasoning in rejecting Mr Famy's complaints as to those occasions were their conclusions, on each occasion (save in 2000), that the actual comparator had formally applied for the post into which it is said Mr Famy should have been promoted but that Mr Famy had not so applied, although posts were internally advertised. At paragraph 57 the Tribunal said, summarising their conclusions at paragraphs 50 to 56,

"We have considered the individual instances of alleged race discrimination."

It is entirely clear that the Tribunal concluded as fact that (save in 2000) Mr Famy had not applied for the position to which he claimed that he should have been promoted and that the person appointed had formally applied for the post in each case and that therefore, in the Tribunal's view, the proposed actual comparators were not true comparators because their relevant circumstances were not the same as or were materially different from those of Mr Famy. That this was the Tribunals approach is evidenced by their specific reference, in the alternative, to hypothetical comparators in paragraph 57.

23. Ms Russell criticised this general approach of the Tribunal in 3 ways. Firstly she took us through the evidence relating to each occasion in order to seek to demonstrate that the Tribunal's conclusions that Mr Famy had not applied for a promotion and that there had been no differential treatment were perverse. Secondly by the same process she supported her contention that the Tribunal's conclusion as to the absence of any failure to promote was perverse. Thirdly she submitted that there was evidence of a general failure to promote a loyal and efficient employee who had acted up as Bar Manager satisfactorily on numerous occasions and that the absence of an application for promotion, wherever a vacancy arose, was not a necessary pre-requisite to a discrimination claim in such circumstances. She did not argue that, if the Tribunal were entitled to find that Mr Famy did not formally apply (save in 2000) for the posts which were internally advertised but that the appointee did so formally apply, that was not a material difference between their respective circumstances; in our view such an argument could not successfully be advanced; and it must at least have been open to the Tribunal so to regard the facts.
24. Ms Russell's first general point was that, in relation to a substantial part of the history Mr Famy had given evidence which was not contradicted by evidence called on behalf of Hilton and that, in those circumstances, the Tribunal had no alternative but to accept that evidence. We do not agree; in the absence of notes to indicate to the contrary, we have no reason to doubt Mr O'Dair's account that he made it clear in cross-examination that Mr Famy's evidence about those matters was not accepted and that in certain specific respects his evidence was strongly challenged – for example, his evidence that, in the course of acting up, he had taken part in head of department meetings. The minutes of such meetings going back to 2001 were found by Hilton and disclosed; it was Hilton's case that none of them showed Mr Famy as being present at any such meetings; Mr Famy put in no minutes which showed that he was present at any such meetings. It is not the law that, where the evidence of a party or witness is not accepted by the other party, the fact-finding Tribunal must accept that evidence in the absence of any contradictory material, oral or in writing; it is always open to a fact-finding Tribunal to decline to accept such evidence.
25. Furthermore Ms Russell's point went, for the most part if not entirely, to issues as to whether Mr Famy had applied for the post when it became vacant from time to time and whether the vacancy was internally advertised. Hilton called Ms Spittlehouse, who was responsible for human resources at the Waldorf from November 2002, Ms Haddow, who was Human Resources Officer from 1996 to 1998 and Miss Kelly who was Personnel and Training Manager for the Waldorf from1991 to 1996. These witnesses were able to describe practices at the hotel during the period of all the specific failures to promote relied upon by Mr Famy except in 2000, in which a different situation arose because it was not in dispute that Mr Famy had applied to be promoted to the position of Bar Manager but Hilton's case was that there was no vacancy; and specific evidence about that episode was given by Mr Paul Smith, then Waldorf's Food and Beverages Manager. It is agreed that Ms Spittlehouse's evidence was that the position of Bar Manager in 2004 was internally advertised, that Ms Haddow's evidence was that the Club Bar Managers job was internally advertised in 1997 and Miss Kelly's evidence was that all positions were advertised internally during her tenure. It is further agreed that both Ms Spittlehouse and Miss Kelly gave evidence that staff would not be appointed to a post without first making a formal application and that Ms Haddow gave evidence that those not making a formal application were not considered for appointment in order to further equal opportunities.
26. When we say that it was agreed that the above evidence was given, we do so on the basis of agreement between the parties as set out in solicitor's correspondence created for the purpose of this appeal. We have already commented that, although this is to a substantial degree a perversity case, we do not have either agreed notes of the evidence or Chairman's notes beyond the limited agreement in that correspondence. It is not however, suggested that the evidence of Ms Spittlehouse, Ms Haddow and Miss Kelly to which we have referred was successfully undermined in cross-examination. The Tribunal would have been aware that the Waldorf was a major hotel in Central London operated at all times by a large and major hotel chain; before Hilton and La Meridien it was in the Trust House Forte group and then in the Forte Hotels group. The evidence given by those witnesses is consistent with common sense and general knowledge of the employment practices of substantial and major organisations, of which the Tribunal were no doubt aware. To consider appointment to a post on any other basis, such as on the basis of an oral request or informal application, is and has for many years been to court criticism and to run the risk of a discrimination claim.
27. In our judgment it is entirely clear that the Tribunal were, in responding to the failure to promote claims, acting on the basis of that evidence and approaching the case on the basis that although posts were internally advertised - (and common sense indicates that in any event Mr Famy would have known that his immediate line manager was going or was gone) – Mr Famy did not make any formal application for the posts such as to enable him to be considered for appointment as were those who did make such applications and were appointed. On that basis they concluded that no difference in treatment between Mr Famy and the actual comparators had been established because they were not true comparators. In each case (leaving aside 2000) Mr Famy had not applied for the vacancy whereas the comparators had.
28. We do not accept that this general conclusion could be said to have been perverse. There was evidence to support it; we have set it out above; if and in so far as the witnesses did not cover any particular occasion the Tribunal would have been entitled to infer that the employment practices to which the witnesses spoke applied throughout; but evidence did cover the date of each specific occasion. It was open to the Tribunal to proceed to reach conclusions on the basis of that evidence. To establish perversity an Appellant must make out an overwhelming case that the Tribunal has reached a factual conclusion which no reasonable Tribunal could reach (see the Yeboah v Crofton [2002] IRLR 634 (CA)). That has not been demonstrated in this appeal.

Failure to Promote. Specific Occasions

1992

29. In 1992 the then manager of the Club Bar, Michelle Soma, left. The Tribunal said, at paragraph 7 of their judgment,:-

"Mr Famy says that he asked Mr Blight for promotion at that time but there is no evidence of a formal application"

30. Miss Soma was replaced by Peter (whose surname is not known). At paragraph 51 of their judgment the Tribunal said:-

"The Tribunal considered each part of the potential actual comparators in turn. In relation to Peter, there is no evidence that Mr Famy applied for the job whereas Peter did. The job was advertised both internally and externally and Mr Famy did not apply. Accordingly, the relevant circumstances are not the same or materially the same and Peter cannot be an appropriate comparator."

31. Ms Russell's submission was that the only evidence was that given by Mr Famy and Mr Umali, his colleague, which demonstrated that Mr Famy had applied for the position of Bar Manager orally and had acted up between the departure of Michelle Soma and the arrival of Peter, the position was not internally advertised and Peter was externally recruited. Thus the Tribunal's conclusion at paragraph 51 was perverse. However, in the case of this episode as with others, it is, in our judgment, entirely clear that the Tribunal were referring to the absence of a formal application on the part of Mr Famy, without which, on the evidence, Mr Famy could not be appointed. The Tribunal were entitled, in our judgment, to conclude as they demonstrably did (see their words in paragraph 7 "there is no evidence of a formal application") that what was needed if a person wished to obtain a vacant post was a formal application and that Mr Famy had not made a formal application. We cannot see any basis on which it could be said that that conclusion was perverse; on the basis of the evidence which we have set out earlier in this judgment as to the employment practices at the Waldorf the Tribunal's conclusion is not at all surprising and is not one which could be said to have passed the test for perversity set out in Yeboah v Crofton.
32. The Tribunal were in our judgment entitled in making the comparison relied upon between Mr Famy and Peter, in relation to the Bar Manager's vacancy which arose when Miss Soma left, to conclude that Mr Famy did not make a formal application, that Peter did and that their positions were, accordingly, materially different.
33. In the context of the Tribunal's legitimate conclusions, none of the other points taken by Ms Russell can assist. We will deal later with the point about acting up in general terms; for it is a point which Ms Russell has made in the context of all or most of the vacancies; but in brief the fact that Mr Famy was acting up in Miss Soma's position until Peter was appointed, if established, would not have affected the Tribunal's conclusion.
34. As to the absence of internal advertisement, there was evidence from which the Tribunal could infer that posts were always internally advertised.
35. Ms Russell made a further point about the absence of any records in relation to Miss Soma or Peter. That is hardly surprising having regard to the time which had elapsed since their respective departure and arrival; but, in any event, the absence of records, in our judgment, could not have adversely affected the strength of Hilton's case. Mr Famy did not formally apply for the post, even on his own evidence; and Peter did.

1993

36. In 1993 Peter left; the Tribunal found, at paragraph 8, that Mr Famy asked Peter for Peter's job; but Peter was in the course of leaving and not responsible for the appointment of his successor; and Mr Famy did not ask anyone else. At paragraph 51 and 52 the Tribunal found that the post was advertised internally and externally and that Peter's replacement, Sylvie Gourdon did apply (i.e. formally apply) for the post. They said:-

"When Sylvie Gourdon was appointed, she applied for the post and Mr Famy did not. All that he did when Peter left was to ask the departing barman, Peter, if he could be promoted. This does not amount to an application and therefore cannot be said to be materially the same as Ms Gourdon who did apply."

37. The Tribunal were entitled, in the circumstances, to conclude that Mr Famy and Sylvie Gourdon were not true comparators. Ms Russell relied upon agreement between the parties that Mr Famy had said in cross-examination that, on this occasion, he went to his line manager; and the Tribunal, at paragraph 8, referred to Mr Famy's having a meeting with Mr Messant, the then resident manager, in which he was told that Sylvie Gourdon had been appointed. If the evidence relied upon was evidence that, before Sylvie Gourdon's appointment, Mr Famy had spoken to someone more senior than Peter, the Tribunal were not bound to accept that evidence; they clearly did not accept his evidence that there had been no internal advertisement for the post; and the Tribunal were entitled to reach the conclusion that, prior to Sylive Gourdon's appointment, Mr Famy had only spoken to Peter about his desire for promotion.
38. Ms Russell argued that it was perverse of the Tribunal not to make a finding that Mr Famy had, prior to Sylvie Gourdon's appointment, taken his request for promotion higher. She submitted that, in failing to make a finding as to this, the Tribunal had fallen into error by failing to engage with the third paragraph of the Igen guidelines. In our judgment the Tribunal were not bound to make a positive finding in favour of Mr Famy on this factual issue or at all; a Tribunal is entitled to have doubts about the accuracy of a piece of evidence and to indicate reluctance to accept it in the absence of corroboration, as the Tribunal did in the latter part of paragraph 8.
39. Paragraph 3 of the Igen guidelines is as follows:-

"It was important to bear in mind in deciding whether the Claimant had proved such facts that it was 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 would not be an intention but merely based on the assumption that 'he or she would not have fitted in'."

40. We have had difficulty in seeing in how the Tribunal's failure to make a finding of fact as to this part of the evidence demonstrates a non-engagement with the guidance in that paragraph, as to which the Tribunal had specifically directed themselves in paragraph 45 of their judgment. The Tribunal were not, as we see it, in this part of their judgment giving any indication that they regarded direct evidence of discrimination as anything other than unusual to find. Hilton's case was not that Mr Famy would not have fitted in or was in some way unsuitable for promotion but that he had not formally applied for the post and was not eligible for it.

1994

41. Later in 1994 Sylvie Gourdon left and Karin Hindermann was appointed. There can be no doubt that Ms Hindermann made a formal application for the post; an application to Forte Hotels was in evidence before the Tribunal. The Tribunal set out the facts of this episode at paragraph 9 of their judgment; and at paragraph 53 they concluded that the reasons why Mr Famy and Ms Gourdon were not in a like situation applied equally to Mr Famy and Ms Hindermann. They were thus concluding that Mr Famy had the opportunity to but did not formally apply for the post and that Ms Hindermann did so apply.
42. The Tribunal's conclusion is said to have been in error or perverse because they failed to prefer Mr Famy's evidence and/or to find that he had applied for the post to Mr Messant on this occasion, that the post was not internally advertised, that Ms Hindermann was externally recruited, that Ms Hindermann had no previous experience as a Bar Manager and that Mr Famy had acted up in the interregnum between Ms Hindermann and Ms Sylvie Gourdon.
43. We are not persuaded that the Tribunal fell into any error of law. An examination of Mr Famy's witness statement shows his evidence to have been that he spoke to Mr Messant about the previous vacancy and not on this occasion; in any event it was not suggested that he made a formal application. We have already dealt with the argument as to the rejection of Mr Famy's evidence generally; and we have dealt with the evidence that vacant posts were internally and externally advertised. It is clear that the Tribunal did not accept Mr Famy's evidence as to that and preferred the evidence called by Hilton. There was no suggestion that Ms Hindermann was not externally recruited; that was not a fact in issue. As to acting up, we set out our approach at Paragraphs 71 & 75 below.
44. There was some debate before us as to the nature and extent of Ms Hindermann's experience; her CV showed that she had done an apprenticeship from 1985 to 1988 in a hotel catering school and had gained the qualification of "hotelfachfrau"; she had worked at Buckingham Palace and at various hotels in Germany and England. We even had an argument as to what "hotelfachfrau" means. The Tribunal described her as having "relevant experience".
45. Despite the interesting debate, Ms Hindermann's experience or lack of it was, in our judgment, not of direct relevance; we say again that the Tribunal did not need to embark on a comparison between her experience and that of Mr Famy in her case any more than in the case of Peter or Sylvie Gourdon. The essential difference on which the Tribunal based their conclusion did not relate to experience at all. Nor has it been shown that the Tribunal's finding that Ms Hindermann had relevant experience was perverse (although it would not, as it seems to us, have assisted Mr Famy if it were); it is correct that Ms Hindermann's CV did not refer expressly to her acting as Bar Manager or Assistant Bar Manager; but her general experience in high class establishments was apparent; and that could legitimately be said to amount to relevant experience.
46. It is also said that Mr Famy's evidence was that he was asked to train Ms Hindermann. Mr O'Dair had not been asked to agree that that evidence remained unaffected by cross-examination; and, as we have said earlier, we have no notes. In any event Mr Famy's witness statement, paragraph 14, states only that Mr Famy was required to assist her into her new position – which, since Mr Famy had worked in the Club Bar for many years, could hardly be regarded as surprising. It is correct that the Tribunal did not refer to that evidence; but this is a matter of detail which the Tribunal were not required to mention. It is not a piece of evidence which demonstrates that the Tribunal made an erroneous or perverse finding as to this episode.
47. We are not persuaded that in any other respect the Tribunal's conclusion as to Ms Hindermann's appointment was perverse or erroneous. The findings (save for the reference for her experience) are limited to what was directly relevant to the Tribunal's conclusion i.e. that she did and Mr Famy did not apply for the post; those were findings which were open to the Tribunal on the evidence and have not been shown to have been findings which no reasonable Tribunal could reach.

1996

48. In 1996 Miss Hindermann left and David Smith was appointed Bar Manager; see paragraph 10 of the Tribunal's judgment. The Tribunal concluded at paragraph 54 of their judgment:-

"The next comparator is Mr David Smith. There is no evidence before the Tribunal to confirm the allegation in the Claim Form that Mr Famy asked Ms Hindermann if he could be appointed. In any event, he did not apply and David Smith did and therefore the two are materially different."

49. Ms Russell attacks that conclusion on the basis that the Tribunal ought to have accepted the evidence of Mr Famy and Mr Umali which was uncontradicted and ought to have found Mr Famy acted up in the interregnum, that the post was not internally advertised, that Mr Smith was externally recruited and that Ms Spittlehouse had been unable to locate any documents relating to Mr Smith. Our views as to these points can be anticipated from our views as to the earlier episodes; the Tribunal were, in our judgment, entitled to find that the post was internally advertised. Neither Mr Famy or Mr Umali suggested that they were not aware of the vacancy; indeed Mr Famy's common theme that he acted up during periods of interregnum would appear to demonstrate that he was aware. Neither Mr Famy or Mr Umali said in evidence that Mr Famy had applied for the post for which Mr Smith applied. The second sentence of paragraph 54 is not criticised. As to acting up, see below. The absence of any detailed record of Mr Smith's appointment does not remove the existence of an evidential basis for the conclusion that Mr Smith applied for the post. We see neither error of law nor perversity in the Tribunal's conclusions as to this episode.

1997

50. Mr Smith left in 1997 and was replaced by Mr Brown. The Tribunal said, of this episode, at paragraph 11:-

"On 18 August 1997, Gerry Brown was appointed as Bar Manager. This position was advertised in the Evening Standard and the "Caterer and Hotel" paper. We have a copy of the letter of application in response to this last advertisement at page 121. The evidence before us was that Mr Brown was considered by the hotel to be an exceptionally good Bar Manager. He left on 16 April 2000."

And, at paragraph 55,:-

"In relation to Gerry Brown, the post was advertised internally and externally and all who did not apply were not considered. Mr Brown did apply and therefore the circumstances are not materially the same."

51. As to this episode Ms Haddow gave evidence, as set out in her witness statement, that, when Mr Smith resigned, the vacancy thus created was advertised internally via the notice board in the staff canteen, in accordance with company procedure, and externally; Mr Brown applied externally; there were no internal applicants, although the recruitment of the replacement took a long time. Mr Famy's evidence, according to his witness statement, was that the position was not internally advertised and that in the interregnum he acted up as before. Mr Umali's witness statement confirms that Mr Famy acted up in that way; the witness statement stated that he was not aware of internal advertisement.
52. Ms Russell's criticism was that the Tribunal should have accepted the evidence of Mr Famy and Mr Umali as to the absence of internal advertisement, particularly because the two corroborated each other and because no documents had been found in relation to the appointment of Mr Brown. The Tribunal had failed to make necessary findings; and their findings were perverse.
53. The fact that two witnesses (one, Mr Umali, very generally) said that there was no internal advertisement and only Ms Haddow gave evidence to the opposite effect does not provide or support an argument, before an Appellate Tribunal which can intervene only in the presence in an error of law, that there has been any such error when the Tribunal has preferred the evidence of the one witness to that of the other two. The Tribunal were the fact-finding body; there was plainly evidence before them that there had been an internal advertisement; it was for the Tribunal to decide which evidence they preferred. Their conclusion has not been shown to have been erroneous or one which no reasonable Tribunal could reach.
54. As to acting up, see below.
55. The absence of any documents relating to Mr Brown's appointment was of no essential materiality or weight to the issues on which the Tribunal reached their views as to this episode. Such documents, if found, might have provided information as to Mr Brown's previous experience and qualifications; but the Tribunal did not in his case or in the case of any of the other appointees rely on a comparison between the appointees' qualities and those of Mr Famy. Had Mr Famy been in competition for the post with Mr Brown, it may have well been essential for the Tribunal to have carried out that exercise; both would have been candidates; and their comparative qualities are likely to have been relevant to consideration of the application of the first part of the Igen guidelines; but no such exercise was necessary on the basis of the Tribunal's findings.

2000

56. The events which followed Mr Brown's departure in April 2000 were, on the Tribunal's finding of fact, of a different nature from those which surrounded the 5 appointments to the post of Bar Manager between 1993 and 1997 to which we have just referred. We go first to the Tribunal's findings at paragraph 12, namely:-

"On 20 June 2000, Mr Famy made an application (page 134) addressed 'To whom it may concern' in the following terms:

'I would like to apply for the position as Bar Manager in the Club Bar which has become available. As I have been in the Club Bar working for the past 17 years I feel I am the best person suited to fill this position…'

The letter is annotated 'Paul Smith to talk'. Mr Smith gave evidence before us and explained that he did speak to Mr Famy although this was not an interview in the sense that he was interviewing Mr Famy for the position. He met with Mr Famy to explain why he was not going to replace Mr Brown and to say why he did not think that Mr Famy would be suitable for the job. In essence, the position that Mr Brown had occupied was not available. It was never advertised because there was not authority to fill it. Mr Smith explained to Mr Famy that he was not replacing the bar manager and the position was not there. Mr Brown had created a structure where the bar ran very effectively allowing Mr Brown to be in the front of the house meeting and greeting customers. This was one of the reasons that Mr Smith had for not re-appointing a Bar Manager."

And at paragraph 56:-

"Mr Famy was not appointed when Mr Brown left because of the explanation which the Tribunal accepts put forward by Mr Smith that no Bar Manager was required. Therefore Mr Famy had applied for a post that the Respondent did not need to be filled. However, Mr Smith explained the situation to Mr Famy. There is no evidence to suggest that anybody else who had made an application at the same time as Mr Famy would have been treated any differently."

57. In summary the Tribunal concluded that Mr Famy did, on this occasion, write a formal letter seeking the position of Bar Manager of the Club Bar when Mr Brown left but that the decision had already been taken that Mr Brown should not be replaced and therefore there was no vacancy.
58. Ms Russell challenged the Tribnal's conclusion on two bases. First she submitted that there was no evidence to support the Tribunal's finding that Mr Famy was told by Mr Smith of reasons why he did not think that Mr Famy would be suitable for the job. Mr O'Dair pointed out that this was not accepted and, indeed, that this had not been the subject of cross examination of Mr Smith; in the absence of any agreement and of any notes of the evidence, the Tribunal's finding in this respect could not be attacked, he submitted. Ms Russell accepted that Mr O'Dair was correct; and we say no more about this point. Secondly she submitted that the Tribunal's finding that no Bar Manager was required from 2000 to 2004 was "plainly illogical and incredible"; a hotel such as the Waldorf had to have a Bar Manager; and it had one; for Mr Famy and Mr Umali had given uncontradicted evidence that Mr Famy had acted up in effect as

Bar Manager from 2000 to 2004; therefore the Tribunal should not have found that there was no vacancy and should have found that Mr Famy, who had on this occasion specifically applied for the post, had been the victim of discrimination when his application was rejected.

59. We find ourselves unable to accept the assertion that it was illogical and incredible that no Bar Manager for the Club Bar should be required. The witness statement of Mr Smith, then the food and beverage director - and we have seen no notes which demonstrate that what he there set out was undermined in cross-examination – explained in detail the reasons why he decided not to replace Mr Brown and the arrangements which he made. His evidence was not that he left Mr Famy to carry out the responsibilities of the Bar Manager but that he arranged for management responsibilities and decisions to be taken on by his assistant; he felt that a separate manager for the Club Bar was perhaps not necessary and decided to see whether one was or was not needed.
60. Mr Smith's account was, it is clear to us, accepted by the Tribunal; paragraph 12 is a précis of that account. The Tribunal's findings, based on that account, were that there was no post to be filled after Mr Brown had left, in the light of Mr Smith's decision. Even if it had been incredible or illogical that there should be no one with management responsibilities for the bar, Mr Smith's evidence was that that was not the case; he had redistributed those responsibilities to his assistant.
61. The Tribunal were, in our judgment, in the light of this evidence entitled to conclude on the facts as they did that there was no vacancy in 2000 to which Mr Famy could have been promoted; their findings involve the rejection of Mr Famy's case that he was discharging the duties of the Bar Manager and was being deliberately being kept out of the Bar Manager's job; there was evidence to support the Tribunal's findings, namely Mr Smith's evidence. We do not see any basis on what we could find that the Tribunal's findings in this area were perverse.
62. We should add that we have not seen any material which suggests that the Tribunal were in error in concluding that no post was advertised on this occasion. The Tribunal found that it was not, for the reasons set out in Mr Smith's evidence.

2004

63. The background of the appointment of Mr O'Reilly in September 2004 was the creation and execution of the Homage concept which we have briefly described at the beginning of this judgment. That concept included the operation of three bars; and it is not in dispute that, in order to put that concept into effect, the hotel sought one Bar Manager for all three bars. We have not heard of any evidence of any intention or plan on the part of the hotel to appoint individual Bar Managers to the three new bars or any one of them or that any such manager was appointed. External advertisements for the Bar Manager's post (i.e. manager of the three bars together) and for other posts (none of which was that of Bar Manager of any bar) were placed on 7 September 2004. The Tribunal found that internal advertisements were also placed on the hotel notice board. Mr O'Reilly, an external candidate, applied for the new Bar Managers job and was to be interviewed on 17 September 2004. See paragraph 17 of the Tribunal's judgment. Meanwhile (see judgment paragraph 80), at a meeting on 14 September, management explained the Homage concept to Mr Famy and told him he was to be transferred from the Club Bar to Homage with effect from 4 October. It is not asserted that Mr Famy asked at that meeting about appointment to the new post for which Mr O'Reilly had applied; Mrs Russell told us that at that meeting Mr Famy said he wanted to be manager of the cocktail bar, that he had never been manager of three bars and was not looking to be manager of three bars. In his witness statement, at paragraph 34, Mr Famy set out that at that meeting he asked to be manager of the cocktail bar. There was however, no evidence of any intention to appoint a manager of the cocktail bar.
64. The Tribunal's conclusions on this allegation of failure to promote are at paragraphs 17, 21 and 56 of their judgment. It is necessary only to set out the relevant part of paragraph 56, in these terms:-

"The final comparator is Mr Richard O'Reilly who was appointed to thepost of Bar Manager of the Homage bars. He responded to an advertisement. The advertisement was made both internally and externally. Mr Famy did not respond to the internal advertisement buy raised the matter in his grievance… Mr Famy never applied for the post to which Mr O'Reilly was appointed."

65. Ms Russell's primary criticisms of these findings were based on the following points, that (1) Mr Famy's evidence was that the Bar Manager's job was not internally advertised (2) Ms Spittlehouse's evidence was that in 2004 there were no internal applicants (3) Ms Spittlehouse said that the notice board where internal adverts were displayed was moved during the hotel's refurbishment (2002 to 2004) from its previous position near to the staff entrance to a different position; but it is agreed that her evidence was that, in that new position, all staff were able to see it (4) two different forms of internal advertisement were produced (5) Ms Spittlehouse's evidence was that the human resources team were responsible for the distribution but not the display of the internal advertisement (6) Ms Spittlehouse's evidence was that there were no documents relating to Mr O'Reilly's appointment e.g. job specification, interview notes, application forms.
66. Her argument in her skeleton was that the Tribunal should have taken these features of the evidence into account and regarded Hilton's explanation of what occurred as not cogent or adequate and as not complying with paragraphs 12 and 13 of the Igen guidelines. Orally the thrust of her argument was that, in the light of that evidence, the Tribunal's finding that the job was internally advertised was fundamentally undermined and was perverse.
67. We are not persuaded that these features of the evidence demonstrate any error of law on the part of the Tribunal. As to 1,3,4 and 5 it was open to the Tribunal, if there was evidence that the post was internally advertised, to accept that evidence and reject the evidence of Mr Famy. We have referred above to the evidence of Ms Spittlehouse, Ms Haddow and Ms Kelly as to the historical practice of internally advertising recent posts. The fact that there were two different forms of internal advertisement and that the difference between them was not explained did not compel the Tribunal to conclude that neither of them was actually used; the fact that any such form existed could be taken as supporting Hilton's case. Nor did the fact that human resources did not themselves effect the display of the advertisements so compel the Tribunal; they were entitled to regard these evidential details as not driving them to consider that the usual practice was not followed in 2004; they did not have to set out these individual pieces of evidence in their conclusions.
68. As to 2 and 6 the absence of any internal applicant was not evidence that the job was not internally advertised; and the absence of any documents relating to Mr O'Reilly was not a factor which must or should have driven the Tribunal to reach a different factual conclusion. It was not in dispute that there had been an external advertisement for the Bar Manager's post, to which Mr O'Reilly had responded by making an application and that his application after interview had been successful.
69. In our judgment there was evidence before the Tribunal on which it was open on the Tribunal to conclude that the new post was advertised internally and externally, that Mr Famy did not apply for the post (which is not in dispute) and that Mr O'Reilly did (which is also not in dispute). We have identified what that evidence was. It has not been demonstrated that in reaching their factual conclusions the Tribunal made any mistake as to what the evidence before them was or that they reached a conclusion which was perverse.
70. As to paragraphs 12 and 13 of the Igen guidelines, on the basis of the Tribunal's decision those paragraphs did not apply. The Tribunal's approach was that Mr Famy and Mr O'Reilly were not comparators, that there was no differential treatment between them; there was nothing from which the Tribunal could conclude that there had been an act of discrimination.
71. On this analysis of the Tribunal's approach to the failure to promote issues, no question of the cogency or otherwise of any explanation for differential treatment arose. In any event, lest our analysis of the Tribunal's approach be wrong, and the Tribunal were looking at Hilton's explanation, in the light of the evidence that only formal applications could lead to appointment, the explanation that in each case Mr Famy did not apply for the vacant post and the appointee did apply was one which it was open to the Tribunal to accept.

Acting Up

72. It was the evidence of Mr Famy, supported by Mr Umali, that Mr Famy acted up as Bar Manager when the post was vacant and not yet filled and that he did so from 2000 until the appointment of Mr O'Reilly in September 2004.
73. Ms Russell was critical of the Tribunal's judgment in relation to the evidence of acting up in two respects, firstly that the Tribunal failed to make findings of fact as to the nature and extent of Mr Famy's acting up and, secondly, that the Tribunal failed to take his acting up into account in reaching their conclusions.
74. There was, as we have said earlier, substantial dispute as to the extent to which Mr Famy did act up. It is correct that the Tribunal did not make specific findings as to the issues which thus arose. However, in our judgment, they were not required to make such findings. They took the view that, on most of the occasions as to which it is now said that Mr Famy ought to have been promoted to Bar Manager of the Club Bar, he did not apply for the post and that, on the occasion on which he did, there was no Bar Manager's post into which to promote him. Those who were appointed to the Bar Manager's post were, therefore, in a materially different position from that of Mr Famy. Issues as to whether Mr Famy was or as to the extent to which he was acting up while the post was vacant did not, in our judgment, on the basis of the Tribunal's approach and factual conclusions, have to be resolved. It was not necessary to the Tribunal's decision to consider qualitative similarities or differences between the work done by Mr Famy and any of those who were appointed at various times to the Bar Manager's post.
75. The second argument gives rise to a similar response. The fact that Mr Famy had acted up, whether to the degree which he contended or to the lesser degree for which Hilton contended, would not have affected the basis on which the Tribunal rejected the failure to promote claims. On the Tribunal's findings Mr Famy did not fail because he was said to be to inexperienced or insufficiently skilled – to which issues, if they were relevant, the fact and degree of acting up would have been of direct relevance - but because he did not make (save in 2000) the necessary formal application; and in 2000 the Tribunal found as fact that there was no post. Acting up was not of relevance in these circumstances.
76. We can understand how Mr Famy would think that to regard his acting up as irrelevant is difficult to understand; and there were times in the course of the argument in which it appeared that we were being asked to consider the Tribunal's judgment on the basis of whether Mr Famy had received fair and reasonable treatment. Mr O'Dair reminded us that unfair treatment does not automatically amount to treatment which is or even begins to be discriminatory he referred us to recent authority to that effect which he was not able to identify by name but has subsequently identified as Riley v Nick Base (EAT/0092/05 unreported, judgment 19 July 2005) in which the EAT presided over by Bean J, said this at paragraph 8:-

"8 In paragraph 19 of their decision the Tribunal was entirely right to say that it is not enough for an applicant simply to show unreasonable behaviour and that a difference of sex was a hypothetical comparator. In other words, in effect, simply to show unreasonable behaviour is unreasonable to satisfy the requirements of the section in case law. As the Tribunal said, the applicant has to go further. In the fourth sentence of paragraph 19 they said "he needs to show at least a prima facie case that his treatment is on the grounds of his sex or, as the EAT in Bahl put it, that the employer could have been influenced by unlawful discriminatory considerations". Second of these two alternative formulations, is we believe, good law."

77. So far as before the Tribunal or before us Mr Famy's case was put, implicitly, on unreasonableness, the principle there set out applies.

Matthews

78. Ms Russell submitted that the Tribunal had erred in law in failing to consider the decision of the House of Lords in Matthews v Kent and Medway Fire Authority and others (2006 UKHL8) her skeleton argument states that, because the Tribunal failed to consider that decision, their judgment was "per incuriam".
79. The decision of the House of Lords in Matthews was given on 1 March 2006 after argument on 11 and 12 January of that year; all of those dates are after this appeal was brought; the Tribunal could hardly be criticised for not referring to the House of Lords decision; but of course we are bound by it. By that decision their Lordships, by a majority, allowed the appeal of the Appellant retained fire-fighters against the rejection of their claims under the Part Time Workers (Prevention Of Less Favourable Treatment) Regulations 2000 ("PTWD") that their employment fell to be compared with that of full time fire-fighters within the meaning and for the purpose of those regulations. At paragraph 20 of his speech, with which Lord Nicholls of Burkenhead and Baroness Hale of Richmond agreed, Lord Hope of Craighead said:-

"I am not confident however that the Tribunal gave sufficient wait to the extent to which the work on which both groups of fire fighters were engaged was "the same" work. The pains taking way in which they address themselves to the various differences was a necessary and admirable reaction to the way the evidence was presented and the issues argued before them. But it led them to concentrate on the differences and not to assess the weight that ought to be given to the similarities. Their conclusion that the job of the whole time fire fighter was a fuller wider job than that of the retained fire fighter was not, as they appear to have thought the end of the exercise. They still had to address the question posed by the statute which was whether, not-withstanding the fact that the job of the whole time fire fighter was a fuller and wider job, the work on which both groups were engaged could nethertheless be described as broadly similar."

80. Ms Russell's argument was that the Tribunal in the present case had concentrated on the differences between Mr Famy and those who were appointed to the Bar Manager's post when he was, especially when acting up, doing to a substantial degree the same job as that to which they were appointed.
81. In our judgment Matthews does not establish or go towards establishing an error of law on the part of the Tribunal, for two reasons. The first is that their Lordships in Matthews were considering not a discrimination claim but whether the retained firemen satisfied the statutory test of being "engaged in the same or broadly similar work" set out in regulation 2(4)(a)(ii) of (PTWR). The passage in paragraph 20 of Lord Hope's speech explains only why the Tribunal in that case had erred in addressing the specific question which that regulation required them to answer; it contains, in our judgment, no guidance for a discrimination claim where the Tribunal is focusing on the different statutory test posed by section 3(4) of the 1976 Act, which requires the Tribunal to consider whether the relevant circumstances of the Claimant and his comparator are the same or not materially different. Secondly while Ms Russell, for good reasons, was seeking to put forward a case based on the similarities of what Mr Famy did, at least at times when acting up, and what the Bar Managers did, the Tribunal's approach, for reasons which we have already explained in addressing the acting-up issue, did not require consideration of a comparison between Mr Famy's duties and the Bar Manager's duties.

The Grievance Process

82. So far in addressing the failure to promote issues we have said nothing directly about the complaint of discrimination in relation to Hilton's handling of the process initiated by Mr Famy's grievance, that complaint being that Hilton failed to address and to provide redress for the grievances set out in Mr Famy's grievance letter of 12 October 2004. Surprisingly perhaps, we do not have that letter in our bundle; but the Tribunal described it in paragraph 22 of their judgment as complaining of the transfer from the cocktail bar to the restaurant bar and claiming constructive unfair dismissal, race discrimination and personal injury. Ms Russell put that before us as a fair summary; it was Mr Famy's evidence that he had said at the meeting of 14 September that he wanted to be manager of the cocktail bar and that he had said the same at the grievance meeting of 20 October.
83. It was not an expressed complaint that there was in the handling of the grievance procedure a further failure to promote; the failures to promote are listed in Mrs Russell's skeleton at paragraph 4 and do not include a failure to promote in October 2004 as opposed to when Mr O'Reilly was appointed in September 2004. However the Tribunal recognised that Mr Famy complained of a discriminatory failure to address or redress his grievances which, in relation to his employment status, would have included his non-appointment as manager of the cocktail bar.
84. In the Notice of Appeal none of the grounds are expressly directed against the Tribunal's conclusions as to the grievance procedure which is set out at paragraphs 24 to 29 and at paragraph 59 of the judgment. In oral argument Mrs Russell submitted that Hilton should in the course of the process have recognised their mistake in failing to promote Mr Famy; as we have noted earlier in this judgment, Mr O'Dair protested that the case was not put in that way to the Tribunal and that it was not suggested to his witnesses in cross-examination that their resolution of the grievance process was in any way tainted by consideration of race. We have not sought to and indeed, in the absence of agreed notes or the Chairman's notes, could not resolve that issue. There was very little further argument about the grievance process, beyond Ms Russell's contention at a later stage of her argument that by not promoting Mr Famy to the position of Bar Manager, Hilton had failed properly to deal with his grievance.
85. It was part of Mr Famy's constructive dismissal claim that there had been such a failure and that that constituted or was part of the conduct which as a whole constituted a fundamental breach of his contract of employment. The Tribunal made express findings about the grievance process, in that context, in paragraph 36 where they said:-

"The third aspect of the claim of breach of contract is a failure to address and provide the redress for grievances as set out in the Claimant's letter of 12 October 2004. In this connection, the Tribunal took into account that once Mr Famy had formulated his grievances in writing and made them known to the Respondent by the letter of 12 October 2004 (page 158-160), the Respondent dealt with them properly. Ms Spittlehouse responded on 13 October and a grievance meeting took place before Mr Bauer and Ms Spittlehouse on 20 October. The Tribunal found Mr Bauer to be a credible witness who was genuinely concerned about the grievances the Respondent dealt with all those that were within their domain in a constructive way. Mr Bauer wrote to Mr Famy on 25 October (page 168-170) dealing with the various matters including the award of his star points and long service award and genuinely trying to resolve the matters between them."

They referred to the grievance process again in paragraph 59 in the context of the discrimination claim. They said:-

"The next claim is a failure to address and provide redress to the grievances as set out in Mr Famy's representatives' letter of 12 October 2004. On the evidence, the Respondent addressed all the grievances with celerity. Mr Famy had a grievance meeting with Mr Bauer and Ms Spittlehouse during which Mr Bauer tried to be constructive in dealing with the grievances. The matter was further investigated and Mr Bauer dealt point by point with Mr Famy's grievances. The appeal hearing also dealt with the grievances and Ms Scott at the appeal sought to address all of Mr Famy's grievances and told him that if he wanted to work in the cocktail bar that is where he would work. She adjourned the appeal hearing and re-fixed it although the re-fixed hearing did not take place because Mr Famy resigned. Mr Famy has failed to demonstrate that the Respondent failed to address and provide redress of his grievance and even if they had, he has not demonstrated that there is any evidence that a hypothetical white comparator in those circumstances would have been treated any differently."

86. While the Tribunal did not expressly state that Mr Famy had asked to be appointed manager of the cocktail bar, the answer to such a request in the context of the grievance process must have been obvious - that there was, as we have explained earlier, no such post on the basis of the Tribunal's findings. The Tribunal found that Mr Bauer dealt with Mr Famy's grievances point by point. Mrs Russell argued that the findings in paragraph 36 were findings which had to be treated as part of the Tribunal's decision as to the grievance process as a whole; we agree; but in paragraph 36 the Tribunal found that Hilton dealt with all of the grievances that were in their domain in a constructive way; in paragraph 59 the Tribunal found that Mr Bauer tried to be constructive in dealing with the grievances and dealt with them point by point and that Mr Famy had failed to demonstrate that Hilton had failed to address and provide redress for his grievances. Those paragraphs together amount to clear findings that Hilton dealt with the grievances appropriately. There was no actual comparator; therefore the Tribunal, correctly, considered the position of a hypothetical white comparator in the same circumstances and found that there was no evidence that such a comparator would have been treated any differently.
87. We did not understand Ms Russell to contend that that finding was perverse; in any event we cannot see any evidence which the Tribunal failed to take into account or how that finding could be perverse. We are not persuaded that, under any of the grounds of appeal, any valid criticism of the Tribunal's conclusions as to the grievance process have been made out.

Rihal

88. Ms Russell relied before the Tribunal on the decision of the Court of Appeal in Rihal v London Borough of Ealing [2004] IRLR642 for the propositions that (1) in a discrimination case the Tribunal must look at the total picture (2) the Tribunal where there are allegations of discrimination over a period of time, should not treat the individual instance in isolation and (3) a Tribunal is entitled in determining whether there has been less favourable treatment to look at the treatment of the Claimant over the whole history and (4) that it is open to a Tribunal to conclude that there was a "glass ceiling" which prevented the Claimant from achieving further promotion on racial grounds.
89. The first 3 propositions are not in issue; and the Tribunal did not fail to apply them to any relevant extent. In paragraph 57 and in paragraph 60 the Tribunal did expressly consider the complaints of discrimination cumulatively i.e. the total picture and not the individual episodes in isolation; they followed Anya v University of Oxford [2001] IRLR 371 in so doing; they did not need to refer to Rihal for that purpose. In paragraph 60 the Tribunal said of their cumulative look at the complaints of discrimination,

"There is nothing from which we can infer that the treatment received by Mr Famy was because of his race. Mr Famy did not apply for any of the post that he sought and it was his assumption that he should be promoted simply because of experience without applying that lead to his happiness with the Respondent. He has failed to demonstrate any evidence from which the Tribunal can infer race discrimination."

The third of the sentences from paragraph 60 from which we have quoted strikes us as telling in the light of the Tribunal's findings of fact.

90. We suspect that Mr O'Dair's recollection that it was for the purpose of the fourth proposition that Rihal was relied upon before the Tribunal is correct. Ms Russell was, no doubt, seeking, as she did before us, to draw an analogy or comparison between the basis on which Mr Rihal achieved success, namely by establishing that his employers operated a glass ceiling which made it very difficult for those who were not white to attain a senior management post in the employers housing department and what had happened to Mr Famy. The Tribunal in the present case at paragraph 61 distinguished Rihal on the basis that Mr Rihal was a well-qualified candidate who applied for the positions denied to him (whether acting up or substantial) whereas Mr Famy made no formal application at any stage, save in 2000 when there was no vacancy. Ms Russell contended that that distinction was inapt because (1) the promotion process as a whole included the equal opportunities policy and (2) Mr Rihal did not apply to act up. We will address the arguments as to the equal opportunities policy in the next section of this judgment. As to acting up, while it is correct that Mr Rihal was denied acting up as part of the glass ceiling, Mr Famy was permitted at least to include some management responsibilities in what he did in the interregnum between posts – albeit the extent of his acting up was in dispute; but the central difference between the two cases remains, in our judgment, as identified by the Tribunal, namely that Mr Rihal's case was largely about a fully qualified employee being denied posts for which he had applied whereas Mr Famy's case was largely about an employee who not applied for posts which were filled by persons who had. The Tribunal were not, in paragraph 61, failing to acknowledge the principle that a glass ceiling may be found to have existed; they were simply distinguishing Rihal in a manner which, on the facts, was open to them. Had Mr Famy applied when there was a vacancy for manager of the Club Bar and not been appointed, the Tribunal would, no doubt, have wanted and certainly needed, if raised, to consider whether there was a glass ceiling. In the light of the facts determined by the Tribunal in this case, the question of a glass ceiling simply did not arise.

Other Matters Relating to Failure to Promote

91. In further support of her arguments as to failure to promote Mrs Russell relied on 4 further matters (1) Hilton's equal opportunity policy (2) the absence of job profiles or job specifications (3) certain answers to a race relations questionnaire administered to Hilton (4) other factual points set out in paragraph 28 of Mrs Russell's skeleton. We will address those points in the above order.

The Equal Opportunities Policy

92. The equal opportunities policy which was put before the Tribunal dates from 2002; but it was a Hilton document and therefore was directly relevant to the Waldorf from 2004. In so far as relevant it said,

"All colleagues with relevant experience and ability should be considered for promotion and a transfer"

93. Ms Russell told us, without contradiction from Mr O'Dair, that the evidence was that there was likely to have been a similar provision in a similar policy document throughout the relevant period; we accept that that was so. On that basis Ms Russell submitted that Hilton were, by their own policy, obliged, when the post of Bar Manager of the Club Bar became vacant, to consider Mr Famy for the post, albeit that he had made no application for it, and that the Tribunal had ignored the Equal Opportunities Policy in reaching their conclusions. We do not regard this reading of one sentence in the Equal Opportunities Policy as persuasive or as one which the Tribunal were bound expressly to address. It is agreed that Ms Haddow gave evidence that the reason for requiring formal applications for posts was to further equal opportunities; and it is well known in industry and to Employment Tribunals that to appoint to a vacant post a person who has had his shoulder tapped, as Ms Russell suggested should have occurred, and has not made a formal application when others have made formal applications may expose the employer to serious difficulties. Ms Haddow's evidence would have been seen by the Tribunal as reflecting general experience and good sense. The sentence in the Equal Opportunities Policy could not, in our judgment, be construed as undermining what, on Hilton's evidence, was a sustained policy of advertising internally and externally for applicants to fill vacancies and of filling vacancies by formal application only. That policy and the sentence on which Mrs Russell focused can operate together without any practical difficulty – if an internal application for a vacant post is made, the applicant should, if he had the relevant experience and ability, be considered along with external applicants. If that sentence in the Equal Opportunities Policy and the policy relating to vacancies were to be operated separately, allegations of favouritism towards an internal appointee might arise.
94. We have considered whether we should ask Tribunal to provide us with their views as to the Equal Opportunities Policy in the context of the issues in this case, pursuant to the procedure approved by the Court of Appeal in Barke v SEETEE [2005]GWCAC IR 578 but have decided that to do so would, in the circumstances we have described, be superfluous.

Job Specifications etc

95. Ms Russell submits that the absence of any job specifications or profiles or similar documentation is a further breach of the Equal Opportunities Policy. Mr O'Dair accepted that there was no such document in relation to the Homage Bar Manager's position; but Mr Famy never applied for that job and did not express interest in anything beyond being manager of one of the three bars, a position which did not exist in the new Homage structure. As to earlier vacancies, it is agreed that Ms Haddow gave evidence that such documents were drawn up; Mr O'Dair told us that Ms Kelly gave similar evidence; but that does not appear to be agreed. In any event while it is obviously poor employment practice not to produce such documentation (if not already existing) when a vacancy arises – if no such documents were produced – and failure to do so is a breach of any Equal Opportunities Policy which was in similar terms to those of the 2002 document put before the Tribunal, and while we bear in mind the evidence that the absence of such documents creates a risk that an applicant will not know what the job involves (although prior to 2000 that could have hardly have applied to Mr Famy who claims that he was doing all the duties of the Club Bar Manager's job) and that the job may be made to fit the person rather than the other way round, there is no basis, in our judgment, for a view that any such failure of good practice could be said to have been relevant to the Tribunal's decision as to whether or not there was differential treatment between Mr Famy and any of the actual comparators or any of the hypothetical comparators on the basis of the Tribunal's approach. Had the Tribunal not made the findings that they did about advertisement, the need for formal application and absence of any such application on Mr Famy's part (save in 2000) a departure from good practice could have been relevant to the first stage of the Tribunal's application to this case of the Igen guidelines; and, if differential treatment had been established, such breaches of practice may or may not have been regarded as being relevant to the adequacy or cogency of Hilton's explanation; but neither of those questions arose on the basis of the Tribunal's findings and reasons, based on those findings, for rejecting Mr Famy's case.

The Evidence of Mr Umali

96. It is submitted that the Tribunal ignored the evidence of Mr Umali that there were in over 20 years only four non-white employees in the Club Bar and that none of them was ever offered a promotion. Mr O'Dair's response to that submission, that Mr Umali gave no evidence that he had ever applied for a promotion, was telling; nor was there any evidence that anybody else other than Mr Famy had so applied. Once the Tribunal had concluded that Mr Famy's claims failed on the basis which we have discussed in this judgment several times already, this evidence of Mr Umali did not assist Mr Famy's case.

The Race Relations Act Questionnaire

97. Two points were made in the course of argument about the Race Relations Act Questionnaire, answered on behalf of Hilton on 6 March 2005. Answer 27 stated that Hilton did not have information as to the colour, nationality and ethnic origin of all Bar Managers employed in the last 20 years. Answer 28 showed that 100% of managers in food and beverage for October 2004 were white European, there being four such managers although, so far as we are aware, only one of them, Mr O'Reilly, was a Bar Manager. The Tribunal did not refer to this material; but we have no difficulty in understanding why that was so. This material, as in the case of other material on which Ms Russell relied, might in other circumstances have been material from which the Tribunal could have concluded that an inference of discrimination might have been drawn; and if that stage had been passed by Mr Famy, it could have been relevant to the adequacy or cogency of Hilton's explanation for differential treatment; but, as with other material, on the basis on which the Tribunal reached their decision, it was not relevant.

Further Matters

98. Ms Russell set out in paragraph 28 of her skeleton argument, a number of further arguments of fact which she put forward as undermining the Tribunal's decision on the formal application issue. The first is that the Tribunal applied an erroneous criterion in deciding on the basis that Mr Famy had not applied for the various posts, because such a criterion does not appear in the Race Relations Act or in any case law. We were told that, at the preliminary hearing of this appeal, the EAT expressed some difficulty in understanding this point; we share this difficulty; and the point was not dealt with in any depth, if at all, in oral argument. It is a truism that the Act does not set out any such criterion; but the Tribunal did not base their decision on any such provision in the Act; and whether an employer requires formal application for a post will be a matter of fact, to be determined, if it arises, on the evidence in each individual case. Nor did the Tribunal base their decision on any particular authority in relation to what Mrs Russell described as a criterion. In any event we do not understand this appeal to be based on a contention that the Tribunal could not, as a matter of law, decide on the facts that there had been no differential treatment between Mr Famy and the relevant comparator, either actual or hypothetical, because the Act does not expressly permit such an approach or because case law does not permit such an approach. The Tribunal's decision here was one of fact, based on the evidence. It was, as we have already said more than once, open to the Tribunal on the evidence to decide that formal applications were needed and that Mr Famy did not but the actual comparators did make formal applications and as a result the circumstances of Mr Famy and the actual comparator were materially different. A hypothetical comparator would have been in no better position for reasons to which we will come. The Tribunal's conclusions were not conclusions of law but conclusions of fact which were reached in response to the Igen guidelines. The Tribunal did not proceed on the basis of a criterion which it was not in law open to them to apply.
99. The next point is that Hilton's case that they required formal applications was erroneous because Mr Smith's evidence was that, in 2000, he had imposed some of the duties of the manager of the Club Bar on his assistant. The effect of the argument seems to be that the assistant was appointed as Bar Manager informally. This point, in our judgment, misunderstands the evidence. If a manager who decides not to replace a departed employee gives some of the duties of that employee to an existing employee he is not thereby to be taken to appointing the existing employee to the post of the departing employee. There is a clear difference between the appointment of an employee to an existing post and the redistribution of the duties of that post to other employees without making an appointment to that post.
100. There are other factual arguments set out in paragraph 28 of Ms Russell's skeleton argument which are further attempts to reopen the facts. We need say no more in this already very long judgment than that the conclusions which the Tribunal reached on the crucial points were open to them on the evidence.

Hypothetical Comparator

101. Ms Russell submitted that, if the Tribunal concluded that the individual comparators identified by Mr Famy i.e. the various appointees to the post of manager of the Club Bar – or, in the case of Mr O'Reilly, the three Homage bars – were not true comparators within section 3(4) of the 1976 Act, the Tribunal were obliged to consider whether a hypothetical white European barman with Mr Famy's experience and service would have been promoted on each of the relevant occasions. She acknowledged that the Tribunal, in relation to the 2000 episode when in contrast to the earlier episodes Mr Famy did apply to become Bar Manager, had considered a hypothetical comparator (see paragraph 57); but, she submitted, the Tribunal had not done so otherwise.
102. Mr O'Dair drew our attention to paragraph 2.2 in which the Tribunal expressly set out as an issue which they had to determine whether Hilton treated Mr Famy less favourably than actual comparators (they said "Sylvie Gourdon" but that was plainly intended as an example) and then a hypothetical white comparator in relation to the various alleged failures to promote. He submitted first that the expressed reference to a hypothetical comparator at paragraph 57 – and again in paragraph 59 – indicated that the Tribunal had the need to consider hypothetical comparators, once the actual comparators relied upon ceased to be comparators, well in mind. Paragraph 57 did not address only the 2000 episode, he submitted, but was a general paragraph in which, correctly in law, the Tribunal looked at the whole history overall, having previously looked at the episodes relied upon one by one; and the Tribunal should, when their judgment was read as a whole, be taken to have considered the hypothetical comparator issue on a wider basis.
103. In any event, he submitted that a further assessment of the hypothetical comparator at the relevant stages could not have made any difference to the result and further, that on the basis of authority it is not an error of law for a Tribunal to omit to consider hypothetical comparison provided that the Tribunal has properly considered whether treatment complained of fell within the first paragraph of the Igen guidelines.
104. We do not regard it as necessary to enter into consideration of that last submission which would have taken us into interesting discussion of dicta in Shamoon v Chief Constable of the Royal Ulster Constabulary ([2001] IRLR 520) and Law Society v Bahl ([2003] IRLR 640). We assume for present purposes the correctness of Ms Russell's submission that it is necessary for a Tribunal which finds that the actual comparators relied upon are not true comparators to ask whether a hypothetical comparator in the same circumstances as the Claimant but of different race would have been treated as was the Claimant; see such authorities as Balamoody v United Kingdom Central Council for Nursing, Midwifery and Health Visiting [2002] IRLR 288; but, in our judgment, (1) the Tribunal can be seen from paragraph 51,57 and 59 to have carried out that exercise not only in relation to 2000 and the grievance procedure but generally and (2) the carrying out of that exercise in relation to the episodes in which Mr Famy did not apply but the appointee did apply for the post of Bar Manager, if that exercise was not carried out, would inevitably have led to the same result. The hypothetical comparator proposed, correctly as we see it, by Ms Russell in the case of these episodes would have been a white European in the same position as Mr Famy; he/she would therefore not have applied for the vacant post; and he/she would not have been treated any differently from Mr Famy, because he/she on the Tribunal's findings could not and would not have been appointed. Indeed it is this thought process which, in our judgment, at least in part caused the Tribunal to couch the first sentence of paragraph 57 as they did and to separate out from the generality of the first part of that paragraph the particular case of the 2000 episode in which the hypothetical comparator would have been a white European who had applied for a post which was not available.
105. Accordingly we do not see any error of law on the part of the Tribunal under this ground of appeal.

The Burden of Proof

106. In support of this ground of appeal, Ms Russell did not to any substantial degree (if at all) seek to go beyond the points taken in her skeleton argument. The first point there set out was that the Tribunal, in applying correctly the Igen guidelines, were obliged to consider first whether "a prima facie case was made out", i.e. whether Mr Famy had proved facts from which the Tribunal could, in the absence of an adequate explanation, consider that there had been discrimination and that only then could the Tribunal consider whether Hilton had discharged the burden of demonstrating a cogent and adequate explanation in order to rebut the inference of discrimination. The Tribunal, she submitted, had erred by referring, in relation to 2000, to Mr Smith's explanation of the reasons for the absence of a vacancy at that stage.
107. In our judgment the Tribunal, in relation to this episode, did not go beyond considering whether there was unequal treatment from which discrimination could be inferred. Having directed themselves to follow Igen and indeed having set out the Igen guidelines in full at paragraph 45, at paragraph 60 they said, in a paragraph which was looking cumulatively at all of the allegations of discrimination:-

"He has failed to demonstrate any evidence from which the Tribunal can infer race discrimination."

108. It is perhaps unnecessary to repeat that, in relation to 2000, Hilton's case was that when Mr Famy applied to Mr Smith for the post of manager of the Club Bar, albeit not in response to an advertisement – for the Tribunal found that the post was not advertised, there was no job because it had been decided not to replace Mr Brown but to devolve his duties elsewhere. It was, in our judgment, entirely appropriate for the Tribunal to consider whether Mr Smith's evidence that there was no post at that time was true and to make findings about it; for if they concluded there was no post at that time, there could not have been any difference in treatment between Mr Famy as an applicant for it on the one hand and an actual or hypothetical comparator applicant who was white European on the other. It was natural, that in order to support his assertion that there was no post, Mr Smith should set out why Mr Brown was not being replaced; and it was natural that the Tribunal in reaching a conclusion on this part of the case should set out the facts which they found and the context in which the conclusion that there was then no post was set. While if the Tribunal had moved on to consideration of Hilton's explanation they would have had to have gone on to consider the same facts for a different purpose, there is nothing to indicate that, in paragraph 12, they had any in any sense erred in relation to the burden of proof. The burden of showing facts from which, in the absence of inadequate explanation, the Tribunal could have concluded that there had been discrimination lay on Mr Famy. He did not discharge it. Nothing in the judgment shows, in our view, that the Tribunal made any error as to the burden of proof, still less an error contrary to Mr Famy's interests.
109. The Notice of Appeal, at paragraph 19, refers to other instances of the Tribunal's considering explanations given by Hilton's witnesses; those instances are not repeated in Ms Russell's skeleton argument and were not developed before us; but we have considered them; we can see no error of law in the case of any of them; the Tribunal were looking at the context of the factual case put before them by Hilton in order to determine the facts which they needed to determine before any question of Hilton's explanation for circumstances from which an inference of discrimination could be drawn came to be considered.
110. Mrs Russell's next argument under the burden of proof head might perhaps have been more comfortably located elsewhere; for it related not to the burden of proof but to what, so far as the first part of the Igen exercise is concerned, Mr Famy had to prove. Mr O'Dair made the point in his answer, in response to the burden of proof ground, that in a failure to promote case it must be proved, before the burden of proof shifts, that the Claimant was properly qualified for the relevant post; in support of this proposition he relied upon Dresdner Kleinwort Wasserstein Ltd v Adebayo [2005] IRLR 514, a decision of the EAT presided over by Cox J in which, at paragraph 35, the EAT said:-

"This does not mean, in our view, that in a case involving alleged race discrimination, it will be sufficient at this first stage for an applicant who is black simply to show, for example, that a white comparator was promoted to a post for which he had applied. In view of the 'like for like' requirement in s.3(4) and the need for the relevant circumstances in the applicant's case to be the same or not materially different in the case of the comparator, the applicant in such a case would have to show not only that he met the stated qualifications for promotion to the post, but that he was at least as well qualified as the successful candidate. The relevant information as to the successful candidate's qualifications could be obtained in the usual way, through correspondence or using the questionnaire procedure."

111. Ms Russell's response was that it is not a requirement under stage 1 of the Igen guidelines for a Claimant to show that he applied for a post in order to prove discrimination and that the reference to Dresdner, which was not a case about promotion was not in point.
112. We agree (1) that Dresdner does not set out as a statement of law that in a promotion case it is compulsory for a Claimant to show that he applied for the post and (2) that Dresdner was not a case about promotion. Indeed the relevant passage does not bear on the burden of proof at all. The passage in the EAT's judgment to which the parties have referred was one in which the EAT was giving an example of what, in a promotion case, would or would not, be sufficient evidence to enable a complainant to proceed beyond the first stage of the process. The EAT was careful to lay stress on the need for the relevant circumstances of the Claimant to be the same as or not materially different from that of the comparator by saying, as an example, that it is not sufficient at the first stage for a black Claimant simply to show that he had applied for a post and that a white comparator was promoted. The EAT was not there referring to circumstances and the Tribunal in the present case was not dealing with circumstances in which a promotion occurred without any formal application by anyone. The Tribunal in the present case did not state that Mr Famy must fail because he never made a formal application for the vacancies but that the comparators put forward were not true comparators because Mr Famy did not but they did make such an application. The passage in Dresdner can be said to have underlined the need for a Tribunal to look at all relevant criteria in deciding whether the like for like requirement has been meet and thus to have supported the Tribunal's approach in the present case to section 3(4) of the 1976 Act; but in our judgment no such support was needed in any event; and the passage in Dresdner to which the parties have preferred has no further relevance for present purposes.
113. Lastly under this head Ms Russell made the point in her skeleton about Hilton's response to the Race Relations Act questionnaire; we have already addressed that point and see no need to return to it.

Jurisdiction

114. It is apparent from what we have said thus far in this judgment that Mr Famy's appeal against the rejection by the Tribunal of his race discrimination claims fail, whether or not the Tribunal erred in their conclusions on the issue of jurisdiction at paragraphs 46 to 49 of their judgment. While sometimes it is thought to be helpful for an Appellate Tribunal to express its view on a matter which has been argued by the parties, whether or not the view contributes to the ultimate decision, in this case we take the view that it would be artificial for us to set out the arguments and to express conclusions as to whether the Tribunal misdirected themselves on the continuing act issue. On the basis that the substantive grounds of appeal fail, there was no discrimination in the course of the grievance process in October 2004 and therefore no act within 3 months prior to the issue of proceedings; and there was no discrimination prior to October 2004. In the circumstances we have concluded that it would be unhelpful and it is unnecessary for us to express a view on the continuing act point, which view would have to be based on the assumption that there had been discrimination in October 2004 and, in the case of failure to promote, before it. That appears to us to be such an artificial exercise that we do not propose to embark on it.

Conclusion

115. For the reasons we have set out, this appeal is dismissed.