United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr Robin Allen (One of Her Majesty's Counsel) Instructed by: Swindon Borough Council Legal Services Civic Offices Euclid Street Swindon Wiltshire SN1 2JH
For the Respondent	Mr Osita Mba (The Respondent in Person)


 


SUMMARY

Race discrimination – Direct/ Indirect/ Inferring discrimination

Finding of direct and indirect discrimination – adequacy of reasoning on each issue. Case remitted to freshly constituted Employment Tribunal.


 


THE HONOURABLE MR JUSTICE BEAN

1. Swindon Borough Council and their head of conveyancing, environment and contracts, Mr Roderic Jones, appeal against the unanimous decision of an Employment Tribunal sitting at Bristol under the Chairmanship of Mr P N Moore, upholding a complaint by the Claimant, Mr Osita Mba. They found that Mr Mba had been subject to discrimination by both Respondents on the grounds of his colour or racial or ethnic origins. Mr Mba is black and of Nigerian ethnic origin. He was admitted as a solicitor in England and Wales on 4 January 2005. He lived in Nigeria continuously from his birth until September 2001 when he came to England. He became a British citizen in 2005 but has retained his Nigerian citizenship.
2. He graduated in law with an upper second class degree from the University of Nigeria in 1998. He then, after a year at a Nigerian law school, was called to the Nigerian Bar in the year 2000. Prior to qualification he had undergone 6 month's pupillage in property and commercial practice. After qualification he worked for the firm of Elias and Co in Lagos for a year undertaking a mix of corporate and property transactional work.
3. On arrival in the UK Mr Mba attended St Anne's College Oxford for a year and took a BCL degree – this is a postgraduate master's degree. He applied to the Law Society to certify his eligibility to qualify as a solicitor in England and Wales under the provisions of the Qualified Lawyers Transfer Regulations. The Law Society required him to take 3 subjects, including property, in the Qualified Lawyers Transfer Test ("QLTT") before being admitted to the role. They also required that he should work for a period of 13 months in a solicitor's office in England and Wales or overseas in a common law practice gaining experience in any 3 out of a list of subjects, one of which was property. Mr Mba passed all 3 subjects in the QLTT with A grades. He worked for 3 months unpaid as a qualified foreign lawyer with a firm in Birmingham undertaking private client tax work. From March till December 2004 he worked for another firm in Reading undertaking a mix of legal work in property, corporate/commercial, private client, and tax.
4. Following his admission as a solicitor he continued to work in Reading in the same subjects (other than private client). He also attended property law conferences prior to qualification. He joined the Chartered Institute of Taxation as a student member in January 2004 and he worked as a part-time research and administrative assistant to the KPMG Professor of Taxation Law at Worcester College Oxford. The Tribunal summed up this record of attainment by saying in paragraph 3.8 that he was clearly committed to pursuing a career as a solicitor in England and had worked diligently and with distinction to achieve that qualification. We agree.
5. Mr Mba's ability to assimilate and make submissions on law is also demonstrated by the skeleton argument which he submitted to this Tribunal which he told us, and we accept, is the product of his own efforts. It is a formidable document running to 153 paragraphs and containing material which shows extensive and useful research into employment law even though this is not one of the subjects in which he has hitherto specialised. Accordingly while before us the Council had the advantage of being represented by Mr Robin Allen QC and Mr Mba appeared in person, the inequality of arms between QC and litigant in person was not quite as great as would otherwise have been the case.
6. The post which this litigation concerns was an assistant property lawyer post within Swindon Borough Council's Department of Law and Democratic Services. The post holder reported to Mr Jones, the second Respondent before the Tribunal. He in turn reported to Mr Stephen Taylor, the director of the department. The Tribunal accepted the council's evidence that the work in this post included the sale and purchase of high value commercial land and buildings. It was a senior position within the department and the incumbent was expected to work on his or her own initiative with minimal supervision. Mr Jones, because of his other work commitments, was unable and was not expected to provide significant training or supervision to the post holder.
7. Swindon appears to have had some difficulty in filling the post in 2005. It was first advertised at the beginning of the year with a February closing date. Four applications were received of which two failed to meet the minimum criteria. The other two applicants who did meet the minimum criteria were invited for interview. One withdrew on the date for interview, the other was interviewed and offered the post but she refused it. So no appointment was made, and the post was advertised again in the Law Society Gazette of 9 June 2005. The closing date for applications was 22 June.
8. Mr Mba was interested and he emailed a request for an application pack. This seems to have disappeared into the ether. He received no reply to the email so two days later he telephoned the council and spoke to Mr Jones personally. He gave Mr Jones his name and telephone number and presumably an email or postal address. The same day Ms Lovegrove, a recruitment assistant in the HR department of the council, forwarded to him a job pack which included a candidate specification as follows.:-

Minimum

A fully qualified solicitor FILEX or licensed conveyencor

3 years experience of property work

5 years experience of legal work

Preferred

5 years experience of property work

12 months experience of highways work

Experience of working for a local authority

9. Also within the pack there was a detailed job description including 11 key tasks. We would simply refer to the first four:-

1. To carry out conveyancing transactions of industrial, commercial and development land with no or minimum supervision to include:-

(a) Transfers on acquisition and disposal of property.

(b) Agreements for Leases, Leases, Agreements to Surrender, Surrenders, Leases of Variation and Rent Reviews;

(c) Easements and Wayleaves;

(d) Covenants and Variations of Covenants;

(e) Notices to Quit;

(f) Any other property related issues which arise from time to time.

2. To give advice on all property related matters to the Council, its Officers and/or Members as and when required.

3. To give advice and deal with any matters arising on agricultural land or property.

4. Te deal with the making of Compulsory Purchase Orders and associated documents.

These four paragraphs, the first of which refers to "no or minimum supervision" and the next three of which say nothing about supervision, are to be contrasted with requirement 5 which is:-

"5. Under the supervision of the Head of Conveyancing, Environment and Contracts to give advice on any matters relating to the renewal of business leases…"

10. The Claimant felt there was no task in the job description he could not do and he sent in an application. His CV set out both his employment in England and his previous employment in Nigeria and education in Nigeria including university and law school. So although the final part of the form containing the applicant's name, sex, age band, ethnic origin, date of birth and disabilities (if any) were removed by the HR department prior to being presented to the decision makers, it must have been obvious to anyone who had taken the trouble to read the applicant's CV that the overwhelming likelihood was that he was a black man from Nigeria. The significance of this will appear later in the judgment.
11. Mr Mba was the only applicant for the post in June 2005. The Tribunal found at paragraph 3.22:-

"The second Respondent – that is Mr Jones- collected the form from Human Resources. Having considered it he decided not to shortlist the Claimant for interview. He referred the form to Mr Taylor and he too decided that the Claimant should not be short listed."

So no appointment was made. A bland letter was written by the HR department. The Claimant asked by email for reasons for the decision. The second Respondent telephoned the Claimant the same day and said he did not meet the minimum experience requirements for the post. When the Claimant protested that he did meet the minimum requirements, Mr Jones replied that it was Swindon's policy to consider only experience gained in England and Wales.

12. The post was re-advertised. Four candidates were short listed and interviewed, three external, one of whom was black, and one internal. The internal candidate who was white was appointed.
13. The Tribunal record in sections 4 and 5 of their judgment the extent to which Nigerian law is based on English law. When Nigeria obtained its independence in 1960 English common law equity and statutes of general applications such as property law were received wholesale into Nigerian law. There are no findings as to what happened after that but plainly statutes passed by the Westminster Parliament after 1960 do not apply to Nigeria. Sometimes the Parliament of Nigeria follows a precedent set by the Westminster Parliament and sometimes not. It is also obvious that Nigeria has its own case law. It also has some customary law, although that was not part of the Claimant's work. The Claimant's studies at university involved text books familiar to any English law student such as Megarry and Wade's 'The Law of Real Property?
14. The Tribunal noted that in 2002 a CRE audit had found that ethnic minorities were under-represented in the first Respondent's work force. As at 30 June 2005 there were still no staff from black and minority ethnic groups within the 94 strong workforce of the law and corporate governance directorate. It appears that there were some unqualified staff within the council's employment who are not white; but no solicitors.
15. In paragraph 7 the Tribunal record that the Claimant put questions to the Respondent in Race Relations Act questionnaires and that some of the responses were evasive. They particularise this as referring to the answers to questions about other applications for the post of Assistant Property Lawyer (that is in the round before and after and the one in which the Claimant was the sole applicant) and also particulars of six solicitors recruited by Swindon in the previous 5 years who it appeared were all white British. The Respondent replied as to applications for the post of Assistant Property Lawyer saying that the Claimant was the only applicant. This, the Tribunal found, was an evasive reply because there had been a previous round in February 2005. The council declined to answer the other questions on the grounds that they were not relevant.
16. The case was originally, and we think far too optimistically, listed for a single day on 31 January 2006. It went part heard. Eleven days later the Claimant renewed a request he had made for an order for disclosure of the application forms or CVs of the six white British solicitors appointed to permanent posts in the council's Directorate of Law and Corporate Governance during the relevant period, and of the other applicants for those posts; of all the white locum lawyers appointed to temporary positions at the same time of the applicants in February 2005 for the Assistant Property Lawyer post; of the applicants considered in the third round, after the Claimant's application; and also of the four white locum solicitors appointed at various times to the position. When the council declined to provide this material the papers were referred to the Chairman who directed a letter to be sent in the following terms on 13 March 2006:-

"The issue for the Tribunal is whether you were the victim of unlawful racial discrimination in relation to your application for employment. Previous recruitment decisions taken by the Respondent are not directly relevant to that question.

The overriding objective requires the Tribunal to deal with the case justly and this includes dealing with it in ways which are proportionate to the complexity and importance of the issues and also with a view to saving expense. Your request for an order for further discovery is therefore refused."

17. At least in relation to other applications for the post of Assistant Property Lawyer this is a very surprising decision. It is not, we think, the decision we would have made ourselves. Nevertheless it is the ruling which was made at the time and by which in the absence of an appeal the parties evidently assumed they were bound when the case resumed before the Tribunal on 21 March 2006.
18. The Claimant's case on direct discrimination was that by refusing to select him for interview Mr Jones and Mr Taylor treated him less favourably than they would treat others in the same or not materially different circumstances. The comparator he identified was inevitably hypothetical; it was a white applicant with a class 2.1 degree from what he described as "a top non-British common law university, for example in Australia or New Zealand" and who had all the other achievements on his CV which Mr Mba had. In other words the same person as Mr Mba but, to put it briefly, a white Australian rather than a black Nigerian.
19. He contended as the Tribunal record at the end of paragraph 10 that:-

"The issue for the Tribunal to determine was whether the second Respondent and Mr Taylor would have rejected without interview an application from a white candidate whose education academic achievements, qualifications and experience were not materially different to the Claimants who had some experience within the jurisdiction of England and Wales but not enough to meet the minimum criteria in the candidate specification, but who had in addition significant experience overseas in a common law jurisdiction which when aggregated with his/her experience in the jurisdiction met the requirements of the candidate specification."

20. As part of his case that an inference of direct discrimination could be drawn from the Respondent's conduct, the Claimant relied on the council's history as an employer of black and minority ethnic people, in particular the findings of the CRE audit in 2002 and what he submitted were the evasive replies given to questions raised in his questionnaires and its refusal to give him the detail underlying the solicitor recruitments made in the previous 5 years.
21. The Tribunal's findings on direct discrimination should be set out in full:-

"16. We have concluded that when the second respondent assessed the claimant's job application for short listing, it was clear to him that this was an applicant who was almost certainly black. This was evident from the academic history and work history. It was an application from someone who had studied, qualified and practiced as a lawyer in Nigeria before transferring to the United Kingdom. Over and above that, the claimant had telephoned the second respondent to request an application pack. From both the claimant's accent on the telephone and also from his name it would have been clear to the second respondent that he was probably black. The second respondent's evidence that he did not make a connection between the form and the telephone conversation we found unconvincing. The decision not to short list the claimant was taken against a background of the Directorate having no black or ethnic minority employees in it. Another important feature of this case is how the Candidate Specification 39 came to be qualified as to exclude the claimant from short listing. The criteria, where the Candidate Specification talked of experience, made no mention of experience 'within the jurisdiction'. It simply talked of 'experience' without qualification. Whilst in our view it would have been reasonable to infer that for a post of Assistant Property Lawyer the experience would have to be in a common law jurisdiction, it is not so obviously necessary to infer that the experience must be within the jurisdiction of England and Wales. Whilst we note the point made by Counsel for the respondents that the Law Society required the claimant to pass a Property paper within the Qualified Lawyers Transfer Test, the events with which we are concerned took place after the claimant had passed that paper with an A grade, undertaken the required work experience to qualify as a solicitor and then gained some post-qualification experience.

17. Our conclusion is that had it not been apparent on the face of the application and also from prior contact with the claimant on the telephone that this was an application from a black candidate, the second respondent would have short listed the applicant for interview. It must be borne in mind that a previous attempt to recruit for this post had been unsuccessful. The claimant was the sole applicant on this occasion. The application he submitted was from an individual who was obviously academically gifted and dedicated to pursuing a career in legal practice. Our conclusion is that, had it been the respondent's perception that the applicant was white, he would have short-listed him for interview, with a view to evaluating whether his background, knowledge and experience of property work was such that he would be able to fill the role of Assistant Property Lawyer and work with the minimum level of supervision. Our conclusion is therefore that the second respondent directly discriminated against the claimant contrary to section 1(1)(a) of the Act."

22. The Tribunal went on in paragraph 18 to consider and reject a claim of indirect discrimination based on section 1(1)(b) of the Act, but there is no issue on this part of the judgment on this appeal.
23. Finally they turned to the claim of indirect discrimination brought under section 1(1A) of the Act. Their conclusions on this were as follows:-

"19. When it comes to the claim of indirect discrimination brought under section 1(1A) of the Act, we note that this is limited to considerations of race or ethnic or national origins. The claimant is of Nigerian and African ethnic origin. His national origin is Nigerian, non-British, non-English and non-Welsh. For the purposes of section 1(1A) of the Act it is not necessary for the claimant to adduce statistical evidence. The consideration is whether the provision criterion or practice which is applied is one

'… which puts or would put persons of the same race or ethnic or national origins … at a particular disadvantage when compared with other persons."

Our conclusion is that the application b the second respondent of criteria of (a) three years' experience of property work in the jurisdiction and b) five years' legal work in the jurisdiction would put an individual of Nigerian, non-British, non-English and non-Welsh national origins at a disadvantage when compared with those of non-Nigerian, British, English and Welsh national origins. It put the claimant at a disadvantage. The final question is whether this was a proportionate means of achieving a legitimate claim. The aim itself we consider to be legitimate, namely to ensure that the individual appointed to the post was capable of working with minimum supervision. However we are not persuaded that the means was proportionate, in that it was a criterion which would have the effect of limiting consideration of individuals who had experience in the many the crude assumption that, even though their legal systems were rooted in the common law and might adopt as the bedrock of their property laws the same property statutes as apply in England supervision. [sic] Our conclusion is therefore that the claimant succeeds also as against the second respondent in his claim of indirect discrimination contrary to section 1(1A) of the Act.

20. As the second respondent was throughout acting in the course of his employment, the first respondent is vicariously liable for his acts and accordingly it too has discriminated against the claimant contrary to the Act.

24. In his skeleton argument for the Appellants, Mr Allen QC ,who did not appear below, originally put forward seven grounds of appeal. In oral argument these were reduced to four. 1) inconsistency between the findings on direct discrimination and indirect discrimination, 2) the absence of any findings about Mr Taylor which, it was submitted, were a necessary to any finding that the Claimant would have been given an interview if he had been white, 3) an inconsistent approach to the relevance of the earlier recruitment decisions, either to the post of Assistant Property Lawyer or more widely, and, 4) the unintelligibility or inadequate reasoning of the Tribunal's conclusions on justification.
25. The general principles of law to be applied are set out in Mr Mba's skeleton argument at paragraphs 18-26. The cases to which he refers are very familiar to this Appeal Tribunal. As Mummery LJ said in Bangs v Connex South Eastern Ltd [2005] IRLR 389:-

"The Tribunal's finding of fact including findings on the credibility of witnesses can only be challenged on appeal if it is established that no reasonable Tribunal could have made findings in question. A perverse decision is erroneous in law, it must be shown by the Appellant that material findings of fact bye the Tribunal are perverse because, for instance, they are unsupportive by any evidence or they are contrary to un-contradicted evidence or they are plainly wrong for some other reason."

26. Similarly and further back in the history of modern employment law, Lord Denning MR said in Hollister v The National Farmers' Union [1979] IRLR 238:-

"An appeal to the EAT lies only on a point of law… it is not right that points of fact should be dressed up as points of law so as to encourage appeals, it is not right to go through the reasoning of these Tribunal's with a toothcomb."

27. Lord Denning referred to dicta of Lord Russell of Killowen in Retarded Children's Aid Society Ltd v Day [1978] IRLR 128:-

"I think care must be taken to avoid concluding that an experienced Industrial Tribunal by not expressly mentioning some point or breach has overlooked it, and care must also be taken to avoid, in a case where the Employment Appeal Tribunal members would on the basis of the merits and the oral evidence have taken a different view from that of the Industrial Tribunal, searching around with a fine toothcomb for some point of law."

28. In Kumchyk v Derby County Council [1978] ICR approved by the Court of Appeal in Mensah v East Hertfordshire NHS Trust [1998] IRLR 531 it was observed that new points cannot be taken on appeal simply because the advocate below whether skilled and experienced or not, should have taken the point below and it is rarely the duty of Tribunals to take points themselves.
29. Turning to reasons, the two classic cases are the decisions of the Court of Appeal in Meek v Birmingham District Council [1987] IRLR 250 and English v Emery Reimbold & Strick Ltd [2003] IRLR 710, the latter given by the present Lord Chief Justice. In Meek it was said that the parties are entitled to be told why they have won or lost and reference was made to the well known observations of Donaldson LJ as he then was in UCATT v Brain [1981] IRLR 225 that it would be "a thousand pities" if the reasons of Employment Tribunals began to be subjected to detailed analysis. This is an observation which we have to say is one made more in hope than in expectation in the experience of this Tribunal; nevertheless, we bear it in mind. An important aspect of English v Emery Reimbold as Mr Mba points out is that the Court of Appeal said at paragraph 26 that the judgment below has to be reviewed "in the context of the material evidence and the submissions at the trial" in order to determine why the Tribunal decided as it did. This is true but on the other hand where a Tribunal has failed to make findings of fact, one cannot generally remedy that omission by looking through the large bundle of factual material which was before the Tribunal to see whether there is some fact which they could have found if they had chosen to do so.
30. A topic mentioned in the Appellant's skeleton, though briefly, and in Mr Mba's skeleton in reply is the burden of proof. The guidelines given by the Court of Appeal in Igen v Wong [2005] IRLR 258 have been approved as recently as last Friday by the Court of Appeal in Madarassy v Nomura [2007] EWCA Civ 33. For our part we do not think that the present case is a case about the burden of proof at all. It is quite clear to us and was we think clear to the Tribunal that Mr Mba had surmounted the first hurdle in the Igen v Wong guidelines, that is, establishing facts from which a Tribunal could conclude in the absence of an adequate explanation that the Respondent had discriminated against the Claimant. What the Tribunal had to decide was whether the Respondents had discharged the burden of providing that adequate explanation.
31. We turn to Mr Allen's four grounds. The first can be simply stated. In paragraph 16 and 17 of the decision the Tribunal concluded that Mr Jones would have short listed the Claimant for interview if he had not been black. Having made that finding they went on with the words "turning now to the claim of indirect discrimination" to consider section 1(1)(b) in paragraph 18 and section 1(1A) in paragraph 19, the latter being the relevant one on this appeal. Their finding in paragraph 19 that Mr Mba had been subject to indirect discrimination presupposes (the argument runs) that a criterion has been applied to everyone or would have been applied to everyone whether white or black, Nigerian or British who had applied for the post, but which bears disproportionately on people born educated and working in Nigeria by comparison with those born educated and working in England and Wales. Thus, as the skeleton argument puts it, the finding on direct discrimination is fatal to any conclusion of indirect discrimination.
32. Decisions of Employment Tribunals should not be construed as though they were statutes. We are quite satisfied that the Tribunal having made its findings of direct discrimination in paragraphs 16 and 17 then went on, with the implied phrase "but in case this is wrong we consider the alternative" or words to that effect, to consider the claims of indirect discrimination. Although as will be seen, we consider that there were some defects in the Tribunal's reasoning, we do not think that they simultaneously concluded that Mr Jones would have short listed the Claimant for interview if the Claimant had been white and also that Mr Jones applied a criterion which he would have applied to any applicant for the post. This ground of appeal therefore fails.
33. The next is described in Mr Allen's skeleton argument as "incoherence and irrationality in the treatment of Mr James and Mr Taylor". The complaint here as Mr Allan expanded it is not so much that there was different treatment of Mr Jones and Mr Taylor as witnesses; it was clearly open to the Tribunal for example to disbelieve one witness but believe the other. The complaint is really that nothing is said about Mr Taylor at all except paragraph 3.22 which we have already quoted: "he too decided that the Claimant should not be short listed". We know from Mr Taylor's witness statement included in the bundle that it had been his evidence that he only ever took experience in England and Wales into account in making appointments of lawyers. If that was correct as a statement of fact (and the Tribunal did not find otherwise) and if Mr Taylor's consent was essential in order for a candidate to get onto the shortlist, and Mr Taylor's view was formed independently of Mr Jones, then the direct discrimination claim would have failed. Mr Mba would have suffered no detriment. There is no finding in the Tribunal's decision as to whether Mr Taylor did form his view independently of Mr Jones, nor whether his view was genuine. It certainly cannot be implied that the Tribunal found that Mr Taylor would have reached a different decision if he had known or believed that Mr Mba was white. Mr Mba points out correctly that Mr Jones was named as a Respondent and Mr Taylor was not, so that Mr Jones' behaviour was, in that respect, under closer scrutiny. Nevertheless the case was put fairly and squarely against both: see paragraph 10 of the judgment. Without the findings about Mr Taylor to which we have referred the conclusion on direct discrimination is simply too flawed to stand. On this ground alone we would, with some reluctance, have to set it aside.
34. Mr Allen's next point is the inconsistency of approach to the relevance of earlier recruitment decisions. We have already said that the Chairman's order on paper dated 13 March 2006 in so far as it stated that "previous recruitment decisions taken by the Respondent are not directly relevant" to the questions before the Tribunal was not one that we would have made, at least as regards previous applications for the post of Assistant Property Lawyer. Nevertheless it was the one which the Chairman made. The council and Mr Jones were accordingly entitled to assume on 21 March that this was no longer a live issue. When they read in the decision that the Tribunal accepted the submission that the responses to questionnaires on this topic were evasive, (see paragraph 7), they were entitled to feel that they had been denied due process. If the Chairman's ruling of 13 March had confined itself to refusing disclosure on the grounds that it was disproportionate then this would not have been a ground of appeal because a finding that disclosure (particularly after the case has gone part heard) would be disproportionate is not inconsistent with a finding that refusal to answer a Race Relations Act questionnaire is evidence of evasiveness. But once the ruling had been made that the other applications were simply not relevant at all, this was, as we have said a failure of due process.
35. Mr Allen's fourth and last ground of appeal was concerned with paragraph 19 which we have quoted in full. Following receipt of the judgment Mr Wirth, the solicitor with conduct of the case for Swindon, wrote to the Tribunal pointing out that the penultimate sentence of paragraph 19 does not make sense. That email was not copied as it should have been to Mr Mba, nor was the reply from the Tribunal which stated, in our view amazingly, that paragraph 19 was correct as it stood. Mr Mba first saw this exchange at the hearing before us. He did however have notice of the point that one of the grounds of appeal was that paragraph 19 and in particular the vital penultimate sentence was incoherent. He suggested in paragraph 140 of his skeleton argument that the missing words between "England" and "supervision" should be "they are not capable of working with minimal" so that the conclusion would be that the limiting criterion made a crude assumption that even though individuals had experience in common law jurisdictions abroad rooted in the common law and which adopt as the bedrock of their property laws the same property statutes as apply in England, they were not capable of working with minimal supervision. That, we think, is the most likely construction of paragraph 19, but we can by no means be certain of it, and it is most unfortunate that the Chairman did not respond to the request to elucidate this sentence. It is after all the only sentence which addresses the question of whether the means of achieving the legitimate aim of obtaining an appointee capable of working with minimum supervision was proportionate. It was, in our view, open to the Employment Tribunal to conclude that the application of the criteria of 5 years legal work in the jurisdiction including 3 years property work was a disproportionate means of achieving that legitimate aim. But the process of reasoning is not adequately revealed by this single sentence even if one inserts the words which Mr Mba suggests. Conveyancing work is notoriously prone to mistakes which can be very expensive. The employer's case on justification as we understand it is that they simply could not take the chance. Mr Jones did not have the time alongside his other duties to provide detailed supervision. If that case was to be rejected, for example, on the grounds that an interview and possibly a test problem or two might have proved one way or the other whether Mr Mba was suitable for the post, it required, in our view, a considerably more detailed explanation than is to be found in the truncated penultimate sentence of paragraph 19.
36. In his cross appeal Mr Mba submits that the Tribunal should have addressed but did not address the Council's failure to comply in a number of respects with the CRE code of practice and the Law Society's code. He points to paragraph 8 of the guidance in Igen v Wong which (making the adaptation from sex discrimination to race discrimination) provides:-

"The Employment Tribunal must decide whether any provision of any relevant code of practice is relevant and if so take it into account in determining such facts pursuant to section 54(10) of the Race Relations Act 1976".

37. However, as we have said, this case is not about whether Mr Mba had established a prima facie case, which is the part of the exercise to which paragraph 8 of the Igen v Wong guidelines is directed. He clearly had. The issue is whether the Respondents had discharged the burden of providing an adequate explanation. At the remitted hearing any failures by the council to observe relevant provisions of the codes of practice should be taken into account but at this stage they cannot, in our judgment, repair any of the three defects which we have found in the Tribunal's judgment.
38. Mr Mba finally submits that if we do find any defects in the Tribunal's judgment we should exercise our power under the Act and rules to deal with the case ourselves as if we were the Tribunal. We could do so if these were pure questions of law divorced from the facts but in each of the three respects in which we have found the Tribunal judgment to be flawed, particularly the first and third, the conclusions are inextricably tied up with the findings of fact: in the case of Mr Taylor there was a failure to find facts and in the case of the indirect discrimination finding, a failure to provide adequate reasoning. Accordingly we see no alternative to the judgment of the Tribunal being set aside and the case remitted.
39. The last question is whether remission should be to the same Tribunal or a different one. We bear in mind paragraph 141 of the judgment in Madarassy v Nomura summarising and approving a previous decision of this Appeal Tribunal in Sinclair Roche & Temperley v Heard [2004] IRLR 763:-

"Factors relevant to whether the remission should be to the same Tribunal or to a different Tribunal include the length of time which has passed since the Tribunal's decision, the risk of loss of recollection and the ability of the original Tribunal to refresh the memories of the members of the notes of evidence on submissions, the length and complexity of the case extent to which the decision under appeal was flawed or mishandled, the risk that the Tribunal has already made up its mind to reach a certain result in the case and its ability to reconsider the matter fully and reach a different decision on the evidence and arguments and the ability of the Tribunal to exercise its usual professional approach and skills on the remission."

40. This was a 2 day hearing and we are sorry to say that in our view the flaws which we have identified in the Tribunal's reasoning taken together were no small matter. We do not think it would be appropriate to ask the same Tribunal to reconsider the case. The case will be remitted to a freshly constituted Tribunal to be selected by the Regional Chairman in the usual way.
41. We would add that it sometimes happens in litigation that when a case has been fought once at an Employment Tribunal and heard here on appeal the issues have been clarified, and the parties can see more clearly the strengths and weaknesses in their respective cases. We would urge these parties to consider the possibility even at this stage of mediation and compromise. But if that result cannot be achieved there will have to be a fresh hearing, for which we suggest 3 days should be allowed, before a freshly constituted Tribunal.