MIRIKI v GENERAL COUNCIL OF THE BAR [2001] EWCA Civ 1973

[2001] EWCA Civ 1973Case No Case No: A1/2001/0384/EATRF
Between
MIRIKIRespondentGENERAL COUNCIL OF THE BARAppellant
Before
Lord Justice Peter GibsonLady Justice ArdenMr Justice MorlandMr. Martin Westgate (instructed by Messrs Deighton Guedella of London N1 for the Respondent)Ms. Tess Gill (instructed by The General Council of the Bar of London for the Appellant)Date 21 December 2001

LORD JUSTICE PETER GIBSON (giving the judgment of the court) :

The

[1]General Council of the Bar (“the Bar Council”) and its Head of Education and Training, Nigel Bastin, appeal with the permission of this court from the order made on 4 December 2000 by the Employment Appeal Tribunal, His Honour Judge Wilson presiding. We shall call that appeal tribunal “the Second EAT” to distinguish it from an earlier appeal tribunal, His Honour Judge Pugsley presiding, which we shall call “the First EAT”. By that Order the Second EAT allowed the appeal of Margaret Miriki from the decision, promulgated on 30 April 1999, of an Employment Tribunal sitting in London (North) (“the Tribunal”). The Tribunal thereby dismissed Mrs. Miriki’s complaint of unfair dismissal, unfair selection for redundancy, racial discrimination and wrongful dismissal. The Second EAT ordered that the matter be remitted to a differently constituted tribunal in accordance with the Second EAT’s judgment.[2]The Bar Council is the governing body of the Bar. It is recognised as representing the Bar and it has responsibility for the formulation of policy with regard to all matters affecting the profession. Its functions have changed over the years, not least in relation to the education and training of those entering the profession. One function is to assist those trying to obtain places on Bar Council vocational courses and pupillages by operating two computerised clearing house systems known as PACH (now OLPAS) and CACH. It has a substantial secretariat. At the times material to the present case it employed some 69 people.[3]Mrs Miriki is of Nigerian origin. She commenced employment at the Council of Legal Education on 21 October 1991, and on 1 January 1996 she was transferred to the position of Assistant Academic Stage Officer in the Department of Education and Training of the Bar Council. It is not in dispute that that was a relevant transfer for the purposes of the Transfer of Undertakings (Protection of Employment) Regulations 1981 and Mrs Miriki’s employment was treated as continuing.[4]At the beginning of 1998 Mrs Miriki’s Department was split into four groups, one of which was the Academic Stage Section. The members of that section consisted of the Academic Stage Officer, who was also responsible for Mrs Miriki and another Assistant Academic Stage Officer, Louise Justum, who was the Common Professional Examination (“CPE”) Board Secretary dealing with CPE matters and the Secretary to the Pupillage Board. Mrs Miriki’s job was mainly related to what were known as completions. A person who wished to enter the vocational stage of training for the Bar was required to obtain from the Bar Council a certificate of completion, showing that he had completed the academic stage of training. He was required to complete a form and produce evidence of his qualifications and a fee of £50. These were checked by Mrs Miriki who would then issue a certificate of completion. She also dealt with a number of other applications for the Bar Council to exercise its discretion, for example, to allow those who had only a third class degree to proceed. In all this she acted under the supervision of the Academic Stage Officer.[5]Prior to July 1997 those coming to the Bar had to take the Bar exams to qualify for entry into the profession. Thereafter such persons had to complete the Bar Vocational Course (“the BVC”). The effect was that the route through the vocational stage of training for the Bar became the successful completion of a BVC course. In 1996 the Bar Council validated seven institutions to offer the BVC. The validated institutions were given the task of ensuring that applicants to them had the necessary qualifications to enter the course. It therefore became unnecessary for the Bar Council to carry out its own check on those qualifications and to charge a fee for doing so. Changes were made to the regulations whereby the certificate of completion ceased to be required for students entering the BVC course after October 1998. The Bar Council by agreement with the Law Society also ceased from August 1998 to provide secretarial support for the CPE.[6]The changes significantly reduced the work of the Academic Stage Section. It was therefore decided to create a new section, called Pre-Call Courses, which would deal with both academic and vocational stage matters and include PACH/CACH. That new section comprised two educational/administrative officers, employed in a supervisory capacity, and four others, three of whom were experienced in relation to PACH/CACH. The fourth was the deputy receptionist who provided secretarial support to the Senior Education Officer as well as assistance on PACH/CACH. The other remaining section of the Department of Education and Training was called Continuing Professional Training. This dealt with pupillage and continuing education for barristers. Miss Justum, who is a solicitor, was transferred to this section.[7]It was in the process of putting these new structures in place, so the Bar Council claimed, that it became clear to it in July 1998 that Mrs Miriki’s job would disappear to an extent greater than had originally been expected and that the Department had to lose one post.[8]At the start of 1998 Mrs Miriki had been on maternity leave until April. She then returned to work, but was given leave of absence for the whole of June 1998, part of which was holiday and part of which was leave without pay, in order to visit Nigeria. She left no contact address or telephone number at which she could be contacted in Nigeria. She contracted malaria while in Nigeria. The Bar Council was informed of this by Mrs Miriki’s mother on 1 July 1998. No further communication was received from Mrs Miriki in July. Several letters were sent to her address in London asking her to communicate with the Bar Council. She did not do so until 10 August 1998 when she sent the Bar Council a fax in which she referred to a medical report which she said should have been received from her London doctor and a fax which she said was dated 8 July and was sent by her husband. She said that she had left hospital on 3 August and gave 18 August 1998 as her expected date of return. Neither the medical report nor the fax of 8 July was received by the Bar Council. On 14 August she sent a further fax, saying that she was surprised that the Bar Council had not received a fax from her London doctor as she had been assured by a Nigerian hospital that it had contacted that doctor. A medical report was received by the Bar Council that day. She said in that second fax that she intended to resume work on 1 September 1998. She did not return to work that day.[9]A note of a meeting on 13 August 1998 between the Head of Administration, David Hamilton Rump, and Mr. Bastin to discuss staffing in the Department of Education and Training recorded a discussion about Mrs Miriki’s job, the remaining tasks being said to amount to no more than about 20% of a work load and that it did not lend itself to part-time employment. The note recorded that there would be consultation with her with a view to possible redundancy. But on 9 September Mr. Bastin wrote to her, pointing out that her absence had made it impossible to discuss her employment position with her. He advised her of a strong possibility that there would be no work for her in the Department. She was urged to arrange a meeting as soon as possible.[10]On 14 September 1998 Mrs Miriki returned to work. She had a meeting with Mr. Bastin and with Steve Behr, the Pupillage and Examinations Officer. Mr. Bastin explained to her why she was being made redundant. During the meeting she enquired about the possibility of redeployment within the secretariat as well as the possibility of part-time work but was told that neither option was possible. She was dismissed with pay in lieu of notice expiring on 16 October 1998. Thereby the Bar Council wrongly assumed that she was entitled to only four weeks’ notice and pay.[11]Mrs Miriki lodged her complaint with the Tribunal on 9 December 1998. In her Originating Application, prepared with the help of the Citizen’s Advice Bureau, she said that she was informed prior to going on leave in June that the completions work was under discussion, but was not informed that it would close. In paragraph 8 of the details of her complaint, she did not accept that the real reason for her dismissal was redundancy. She challenged that there was any reduction in work at her level. She said that since being transferred to the Department she had noted that there were no black staff at managerial level, no black staff had been promoted whereas white staff had been speedily promoted and that Mr. Bastin was uniformly unpleasant to all black staff. In paragraphs 9 – 12 she complained that she was unfairly selected for dismissal in contravention of fair selection criteria, that her dismissal was unfair in that the Bar Council had failed to consult with her prior to the meeting on 14 September 1998, that she was dismissed on the grounds of her race contrary to s. 1(1)(a) Race Relations Act 1976, and that despite her seven years’ service she had only received four weeks’ notice and pay. The last complaint was plainly well founded and was conceded by the Bar Council. But all her other complaints were opposed.[12]The Bar Council denied that Mrs Miriki’s dismissal was related to her race and said that three of the 18 employees in her Department were non-white, one of whom occupied an executive position.[13]Further and better particulars were sought by the Bar Council of paragraph 8 of Mrs Miriki’s details of her complaint. She responded in the following terms:
“The Applicant provides the following examples of differential treatment between black and white staff in the Department. When the Applicant got married in October 1996, there was no recognition of this event whatsoever within the Department, even through good wishes being given. Two months later, when a white Receptionist was married, the Department hosted an organized celebration of the event, to which the whole of the Department was invited, and a gift presented to the bride. The birthdays of white staff in the Department were also regularly celebrated, by parties to which all staff were invited, with food and ample alcoholic refreshments available, or through outings to a local pub. In contradiction to this, the birthdays of black staff received no recognition, and when the Applicant’s employment was terminated by redundancy, she likewise received no acknowledgement of her 8 years service with the Bar Council, such as a party, present, card or good wishes, whereas when white staff leave the Department, there is always a ‘leaving do’ arranged, either within the Department, or in a local pub.”
[14]The case was heard by the Tribunal on 31 March and 1 April 1999, when Mrs Miriki appeared in person. In its Extended Reasons the Tribunal accepted the Bar Council’s evidence that there was a redundancy situation and found that the reorganisation of the Bar Council’s work meant that one less post was needed in the administrative work than had formerly been the case and that the overall requirements for persons to carry out work for the Bar Council had diminished by one post. The Tribunal found that redundancy was the reason for Mrs Miriki’s dismissal.[15]The Tribunal then turned to the question of the selection of Mrs Miriki as the person who should be made redundant. It recounted what had happened between June and 14 September 1998 and set out the Bar Council’s evidence that it regarded its work as being in compartments, and that as it was her job which had disappeared, she was selected for redundancy despite having longer service than others in the Department, and that to give her any job held by another employee would mean having to make someone else redundant and having to retrain Mrs Miriki.[16]The Tribunal then said this:
“7 We do not propose to repeat in detail the evidence which was given by the various witnesses who were called on behalf of the Respondents as this was the substance of the evidence which they gave to the Tribunal. What we have to consider in these circumstances is whether the Respondents properly carried out a selection procedure, having done as much consultation as they could in the circumstances, and whether it was fair of them to select the Applicant. Should we on the other hand reject the evidence which they gave as to the work being very much compartmentalised so that consideration ought to have been given to the question of length of service and whether the Applicant ought not to have been placed into a job with the consequent dismissal of somebody with less service. We discussed this matter at some length because initially the Members of the Tribunal were concerned that, first, the Applicant’s absence had led to a failure by the Respondents to discuss or consult with her as to the question of redundancy, and, secondly, whether in any case we ought to accept that evidence as to the compartmentalisation of the work or whether it would have been more proper for the Respondents to retain the Applicant in some sort of post while dismissing somebody with lesser service. In the end, however, and after a good deal of discussion, we have come to the conclusion that the selection of the Applicant was fair. It was not the Respondents’ fault that at the vital time they were unable to communicate with the Applicant, nor indeed was it the Applicant’s fault that she should have become ill in Nigeria and been unable to return to work in July. The Respondents were, however, confronted during those vital months with an inability to communicate or consult at all with the Applicant when it had already been obvious to them that the amount of work which was left to be performed by the Applicant did not amount to anything like a full-time job. We came to the conclusion that, in the circumstances, it was not unreasonable of the Respondents to decide that it was the Applicant who ought to be selected for redundancy and to proceed on that basis. The reason why we come to this conclusion is that we do accept the Respondents’ evidence that the jobs were compartmentalised and that it was reasonable of the Respondents in the circumstances to conclude that, as it was the Applicant’s job which had disappeared, it was the Applicant who should be selected for redundancy rather than that they should take what might appear to be the more normal route of dismissing somebody with lesser service and placing the Applicant into that person’s job, i.e. “bumping”
. This would not, we find, have achieved the Respondents’ purpose in that they would then have had to re-train the Applicant. It seems to us to be unreasonable of the Applicant to expect the Respondents to do this rather than select for redundancy the person whose job had disappeared. We have, as we say, not found this an easy task. There was a great deal of discussion among the three Members of the Tribunal about the proper attitude to take towards this sort of case, but finally and having regard to the circumstances which presented themselves to us, we have come to the conclusion that we cannot criticise the Respondents for the way in which they carried out the selection process we cannot criticise either the fact that they did the selection process in the Applicant’s absence or the fact that they came to the conclusion that it should be the Applicant who was selected bearing in mind the findings which we have made earlier in this paragraph. Another point which occurred to us was whether we should say in these circumstances that the selection was fair or whether we should say that, because of the absence of consultation, we should consider the dismissal to be unfair but that, marking the chance, in accordance with the principles of Polkey , would mean that since it was inevitable that the Applicant should be selected there would be a very high percentage reduction, if not 100%, from any compensation which would be awarded to the Applicant. Again, after considerable discussion, we have come to the conclusion that we should say that the selection of the Applicant for redundancy was fair. 8 Finally, we pass to the question of racial discrimination and whether any evidence was given to show that racial considerations entered into the selection of the Applicant, either by way of any evidence which she gave or by way of any inferences we ought to draw from unsatisfactory answers given by witnesses called on behalf of the Respondents. We have come to the conclusion, again after some discussion, that we cannot here find that racial considerations entered into the question of dismissal. We can understand that the Applicant, who is black, could well have a suspicion that racial considerations did enter into her selection. The evidence, however, given by the Applicant and by witnesses who appeared on her behalf, did not convince us that this was the position. The earlier incidents mentioned by the Applicant in her evidence did not convince us that black staff were treated differently. We listened carefully to the evidence given on behalf of the Respondents. We have to bear in mind that the Respondents satisfied us that there was a reason for the dismissal of the Applicant and that they also satisfied us, after some discussion and hesitation, that the selection of the Applicant was fair. We could see nothing in the evidence which they gave which would indicate that any racial considerations entered into the selection of the Applicant. Consequently, we find that the Applicant’s claims fail. 9 We should mention that we come to this conclusion with some regret. The Applicant is clearly a person of high intelligence against whom no criticism could be advanced by the Respondents except possibly in respect of a failure to communicate with them from Nigeria, which is probably excusable. It is a matter of some regret to us that in these circumstances she should find herself redundant from a job which she was doing to everybody’s satisfaction. It is, however, unfortunate that changes in the way in which the Respondents carried out their work have left them in the position where they did not need the services of the Applicant and we cannot fault them in any way in respect of the decision which they took.”[17]We have set out those paragraphs of the Extended Reasons in full because of the criticisms made of them by the Second EAT and elaborated by Mr. Westgate, appearing for Mrs Miriki on this appeal, in a well-sustained argument.[18]Mrs Miriki then appealed to the EAT. Her original Notice of Appeal was prepared with the help of the Citizens Advice Bureau. In her grounds of appeal she complained that in concluding that the selection by the Bar Council of Mrs Miriki for redundancy was fair the Tribunal did not give due regard to the evidence for her, that because there was no consultation the Tribunal was wrong to conclude that the principles of Polkey v AE Dayton Services Ltd. [1988] AC 344 did not apply to the case and that the Tribunal’s conclusion that black staff were not treated differently was not reasonable.[19]By an Amended Notice of Appeal dated 27 July 1998 and prepared by solicitors for Mrs Miriki the original grounds of appeal were repeated with five additional grounds. Two of the additional grounds were later replaced but the other three grounds were as follows:
“2. The Tribunal erred in law in finding that the lack of consultation did not amount to unfair dismissal contrary to the principles enunciated in Polkey v AE Dayton Services Ltd. [1987] IRLR 503 . The Tribunal’s reasoning in respect of the consideration of the importance of consultation is perverse and wrong in law. In particular the Tribunal failed to separate the question of the fairness or otherwise of the dismissal from any question of compensation that might arise. 3. The Tribunal failed to give adequate reasons for preferring the Respondents’ evidence to that of the Applicant in relation to her own work and that of the department. …. 6. The Decision fails to record the fact that the case was heard over two days (31 March and 1 April) or to record which witnesses gave evidence and the reasons to reject their evidence where it was relevant to the issues before the Tribunal. Furthermore, the Decision fails to record what findings of fact led to the conclusion that the dismissal was fair or that discrimination had not taken place.”
[20]On 24 November 1999 further additional grounds of appeal to replace grounds 4 and 5 in the Amended Notice of Appeal were prepared by the same solicitors for Mrs Miriki in this form:
“i) The Tribunal decision is flawed in that it fails to set out the factual determination in relation to the claim for race discrimination (Meek v City of Birmingham Council [1987] IRLR 250 ) ii) The Tribunal failed to make findings of fact or to record what evidence they heard of alleged acts of race discrimination. Furthermore they failed to state whether they accepted that certain incidents had occurred and whether they amounted to less favourable treatment or not or whether they were not on the grounds of the Applicant’s race. iii) The Tribunal therefore failed to apply the correct test or adopt the correct approach when deciding a claim for race discrimination and made a clear error of law.”
[21]At the preliminary without notice hearing on 24 November 1999 of Mrs Miriki’s appeal at which Mrs Miriki was represented by a solicitor, limited permission for the appeal to go ahead to a full hearing was given by the First EAT. In the brief judgment of the First EAT reference was made to ground 2 of the Amended Notice of Appeal. The First EAT said that it accepted that there was an arguable misdirection of law in the final two sentences of paragraph 7 of the Extended Reasons in that the Tribunal failed to separate the question of the fairness or otherwise of the dismissal from any question of compensation that might arise. The First EAT also found arguable points in relation to paragraph 8 of the Extended Reasons, and said:
“We therefore allow the appeal to proceed on ground 2 only of the amended Notice of Appeal and the further subsequent amendments which replace the old paragraphs 4 and 5 of the amended grounds.”
That sentence was reproduced in effect in the order of the First EAT of 24 November 1999. Thus although the judgment of the First EAT only expressly referred to the third sentence of ground 2, the order made did not limit that ground to that sentence.[22]Although the First EAT did not refer to the original grounds of appeal nor to paragraphs 3 and 6, it is to our mind plain that the First EAT was confining Mrs Miriki on her appeal to those grounds which it specifically indicated, and, as the First EAT’s order stated, only those grounds. The First EAT should have given reasons for not allowing Mrs Miriki’s other grounds to be the subject of her appeal, but Mrs Miriki did not appeal the First EAT’s order.[23]However, when the appeal was heard by the Second EAT in the presence of both parties, whilst the solicitor acting for Mrs Miriki correctly identified the issues raised by the appeal in relation to unfair dismissal by reference to two questions falling within ground 2 of the Amended Notice of Appeal (viz. “Did the Tribunal misdirect itself as to whether or not the dismissal was fair given the lack of consultation? In particular did it fail to apply principles set out in Polkey …. by failing to distinguish between the fairness of the dismissal and any compensation?”) , both in the skeleton argument and, we are told, in her oral argument the solicitor went wider, despite Ms. Gill (appearing before the Second EAT as she does before us for the Bar Council) drawing the Second EAT’s attention to the limited grounds on which the First EAT had allowed Mrs Miriki’s appeal to go ahead.[24]Moreover, Judge Wilson, giving the judgment of the Second EAT, did not confine himself to the limited grounds permitted. In a notably short judgment Judge Wilson referred to the First EAT giving leave for the appeal to proceed on the failure of the Tribunal to separate the question of fairness or otherwise of the dismissal from any question of compensation, having regard to Polkey . He also said that the First EAT had considered that there might be merit in the argument that the Tribunal’s reasons were inadequate. He said that the complaint was directed principally to the question of race discrimination. The reasons given by Judge Wilson for allowing the appeal are so briefly expressed that we shall set them out in full:
“6 We note that the Extended Reasons do not contain the customary recital of facts found proved by the Tribunal. Neither do they disclose clearly what facts were found proved. In those areas where there was conflict of evidence, the Extended Reasons do not disclose which evidence was accepted and why. Furthermore, the Extended Reasons lack the customary quotations from the relevant parts of the statutes or statute to be applied. Perhaps because of that lack, coupled with the failure to recite the facts found proved, in our judgment the Employment Tribunal has fallen into error over the questions it should have asked itself with regard to the matters before it. 7 So far as dismissal is concerned, in our view the Employment Tribunal erred in law in failing to direct itself correctly concerning the definition of fair consultation in the terms set out in paragraph 27 of the judgment in the case of Mugford v Midland Bank [1997] IRLR 208 , at page 210 and also, in particular, paragraph 36 of that judgment. 8 So far as racial discrimination is concerned, in our view the Employment Tribunal fell into error in failing to identify the questions it should have asked itself concerning less favourable treatment and, in the event that such was found, the further question whether or not it had been due to racial grounds. 9 It seems to us, therefore, that the entire decision is flawed and that the matter should be returned to a differently constituted Tribunal for a re-hearing.”
[25]On the Bar Council’s appeal to this court, the first question which arises is as to the scope of the appeal by Mrs Miriki to the Second EAT. Ms. Gill criticises the Second EAT for not confining itself on unfair dismissal to the third sentence of ground 2 of the Amended Notice of Appeal to which alone the First EAT had referred in Judge Pugsley’s judgment. But, as we have already pointed out in paragraph 21 above, Judge Pugsley in expressing his conclusions and the Order made by the First EAT referred to ground 2 without qualification, and in our judgment Mrs Miriki’s permitted appeal must be taken to cover the whole of ground 2. Mr. Westgate submits that the Second EAT was not bound by the decision of the First EAT. He argues that a direction that the appeal should proceed on a specific point of law only had the status of a direction under Rule 25 of the Employment Appeal Tribunal Rules 1993 (“the Rules”) and that it was always open to the Second EAT to give other directions or under Rule 39 to waive non-compliance with a direction if satisfied that it is necessary to do so to ensure that the proceedings are disposed of justly. In any event, Mr. Westgate says, the point of law identified by the First EAT was wide enough to cover points which he seeks to take in this court, principally the failure by the Tribunal to analyse or discuss the requirements of consultation as they ought to apply to the circumstances of this case, the failure by the Tribunal to scrutinise the Bar Council’s case as to the timing of the decision to dismiss and whether or not proper consultation would have revealed alternatives to dismissal, and the inadequacy of the findings by the Tribunal.[26]We cannot accept Mr. Westgate’s submissions. S. 30(3) Employment Tribunal Act 1996 allows the appeal tribunal to regulate its own procedure subject to the Rules and it is pursuant to that power that the Employment Appeal Tribunal Practice Direction was issued in 1996. Paragraph 14 of the Practice Direction provides what is to happen at preliminary hearings of appeals. By subparagraph (4):
“If satisfied that a reasonably arguable point of law is established, the appeal tribunal will give appropriate directions …. to enable the appeal to proceed to a full hearing without unnecessary delay on all or only some of the grounds of appeal.”
That is the authority pursuant to which appeal tribunals in appropriate cases limit the grounds of appeal to those which raise reasonably arguable points of law. If the appellant is dissatisfied with the appeal tribunal’s decision so to limit the grounds of appeal, the appellant should seek to appeal the decision to this court.[27]Rules 25 and 39 of the Rules are irrelevant to the point. Rule 25 gives the appeal tribunal power to give any party directions as to any steps to be taken by him in relation to the proceedings and Rule 26 gives the appeal tribunal power to impose a sanction for, amongst other things, a failure by a party to comply with such a direction. But in this case the First EAT did not give a direction to Mrs Miriki to take any steps. Instead it directed, under the Practice Direction, that her appeal could only go ahead on limited grounds. Rule 39 relates to non-compliance with, and waiver of, Rules, Rule 39 (2) allowing the appeal tribunal to dispense with the taking of any step required or authorised by the Rules or to direct that any such steps be taken in some manner other than that prescribed by the Rules. But again that is not relevant because there is no Rule that is in point.[28]We would not rule out the possibility that in an appropriate case an appeal tribunal might properly exercise its case management powers to allow some limited departure from the grounds of appeal on which an appellant has been permitted to proceed to a full hearing, provided that the point was raised before the tribunal, the appellant has explained why he did not appeal against the limiting of the grounds of appeal and the appeal tribunal gives full opportunity to the respondent to argue against that departure and explains its reasoning for allowing that departure. In addition if the matter was raised before the original appeal tribunal and that tribunal refused to give directions to enable the appeal to proceed, the tribunal hearing the full appeal would have to be satisfied that there had been some material change of circumstances or other good reason to permit the additional ground of appeal to proceed. But that is not what happened in the present case, the Second EAT seemingly treating itself as free to ignore the fact that some of Mrs Miriki’s grounds of appeal were not permitted by the First EAT to go to a full hearing and that ground 2 was limited by its terms. Nor did the Second EAT indicate to the Bar Council what it was minded to do and invite argument on the point, nor did it explain its decision on the point. The Second EAT appears to have taken a new point (on Mugford ) nor did Mrs Miriki explain why she did not appeal the First EAT’s decision. In our judgment the Second Tribunal erred in law.[29]Nor can we accept Mr. Westgate’s submissions that the matters which he now seeks to raise are all covered by ground 2. We shall consider in turn each of those sentences in ground 2.[30]The first sentence raises the point that the Tribunal erred in finding that lack of consultation did not amount to unfair dismissal contrary to the Polkey principles. Polkey was a case where there was a flagrant breach of the statutory code of practice requiring management in consultation with the employees or their representatives to give as much warning of redundancy as practicable to the employee concerned and to establish which employees were to be made redundant. The employer quite out of the blue and without consultation made an employee redundant and did so in a way which a tribunal was to find was inexcusable and could not be a more heartless disregard of the code of practice. The House of Lords nevertheless remitted the case back to that tribunal on the footing that it was possible that the employer had acted reasonably if it could reasonably have concluded in the light of the circumstances known to the employer at the time of dismissal that consultation would have served no point.[31]Lord Mackay ([1988] AC at p. 355) said:
“If the employer could reasonably have concluded in the light of the circumstances known to him at the time of dismissal that consultation or warning would be utterly useless he might well act reasonably even if he did not observe the provisions of the code. Failure to observe the requirement of the code relating to consultation or warning will not necessarily render a dismissal unfair. Whether in any particular case it did so is a matter for the industrial tribunal to consider in the light of the circumstances known to the employer at the time he dismissed the employee.”
[32]Lord Bridge (at p. 364) said:
“in the case of redundancy the employer will not normally act reasonably unless he warns and consults any employees affected or their representative, adopts a fair basis on which to select for redundancy and takes such steps as may be reasonable to avoid or minimise redundancy by redeployment within his own organisation. If an employer has failed to take the appropriate procedural steps in any particular case, the one question the industrial tribunal is not permitted to ask in applying the test of reasonableness posed by s. 57 (3) [Employment Protection (Consolidation) Act 1978] is the hypothetical question whether it would have made any difference to the outcome if the appropriate procedural steps had been taken. On the true construction of s. 57 (3) this question is simply irrelevant. It is quite a different matter if the tribunal is able to conclude that the employer himself, at the time of dismissal, acted reasonably in taking the view that, in the exceptional circumstances of the particular case, the procedural steps normally appropriate would have been futile, could not have altered the decision to dismiss and therefore could be dispensed with. In such a case the test of reasonableness under s. 57 (3) may be satisfied.”
[33]The Tribunal showed that it was aware of Polkey to which it made reference in paragraph 7 of the Extended Reasons. So frequently do tribunals have to consider the principles of that landmark decision that there was no need for the Tribunal to quote the speeches in the House of Lords, provided that the Tribunal shows by its decision that it was not ignoring or contravening the principles of that case. In our judgment, it is plain from paragraph 7 that the Tribunal was aware of the Polkey principles. It expressed itself as concerned at the Bar Council’s failure to consult with Mrs Miriki as to the question of redundancy. It expressly stated that it had considered whether it should hold that because of the absence of consultation the dismissal was unfair. But it concluded that the dismissal of Mrs Miriki for redundancy was fair in the particular circumstances that the Bar Council was unable to communicate with Mrs Miriki in Nigeria at the vital time, that one job had to go and that her selection as the obvious person to be made redundant, given that her job had largely gone, was fair. It seems to us impossible to say that that conclusion based on that reasoning in any way was contrary to the Polkey principles.[34]The second sentence in ground 2, referring as it does to “The Tribunal’s reasoning in respect of the consideration of the importance of consultation,” is difficult to understand as there was no such reasoning. That may account for Mrs Miriki’s solicitor (although it seems it was the same person who drafted ground 2) in her skeleton argument before the Second EAT omitting reference to this sentence in summarising the issues (see paragraph 23 above). Certainly the Tribunal was well aware of the importance of consultation, as we have noted in the last paragraph. The test of perversity is a high one to surmount and we can see nothing to justify describing the Tribunal’s decision as being anywhere near perverse. As Ms. Gill submits, the Tribunal did consider, as it was obliged to under s. 98 (4)(a) Employment Rights Act 1996, whether the Bar Council in the circumstances acted reasonably or unreasonably, and it was not perverse to conclude that the Bar Council did not act unreasonably.[35]The third sentence in ground 2 contains the suggestion that the Tribunal confused the question of the fairness of the dismissal with the question of compensation. With all respect to the First EAT which appears to have been impressed with the point, we have difficulty in understanding this criticism, which was not a point on which Mr. Westgate spent much time. As we read the penultimate sentence of paragraph 7 of the Extended Reasons, the Tribunal was airing possibilities which had occurred to it. One was to find the dismissal unfair because of the lack of consultation but to say, when it came to the question of compensation for such unfair dismissal, that the compensation should be greatly reduced in accordance with what had been said in Polkey (in which what Browne-Wilkinson J had said in Sillifant v Powell Duffryn Timber Ltd. [1983] IRLR 91 at p. 96 on this point had been expressly approved). But the Tribunal then rejected that possibility, finding the dismissal to have been fair. In our judgment it is impossible to say that the Tribunal confused fairness with compensation.[36]We therefore conclude that on the only grounds on which Mrs Miriki had been allowed to have her appeal on unfair dismissal go to a full hearing, her appeal should have been dismissed.[37]The Second EAT however took a number of points with which we should deal. First, it criticised the Tribunal for omitting “the customary recital of facts found proved by the Tribunal”. It also criticised the Tribunal for the lack of “the customary quotations from the relevant parts of the statutes or statute to be applied”. It is often helpful to find in a tribunal’s decision the adoption of a format which sets out in separate sections the facts found and the applicable statutory provisions. But it has been repeatedly said by this court that there is no error of law by the Tribunal in not adopting a particular form for its decision. It does not have to set out statutory provisions providing that it is apparent that it is not ignoring or misapplying those provisions. It is not suggested in this case that any statutory provision was ignored or misapplied by the Tribunal. This court has said time after time that it is wrong to adopt too legalistic an approach to decisions of a tribunal. It has always to be borne in mind that the chairman of a tribunal, although a lawyer, is not a professional judge and whilst not infrequently the decisions of a tribunal are of a standard of which any professional judge would be proud, it would be incorrect to require such standard of all tribunal decisions. As Bingham L.J. (with whom Sir John Donaldson M.R. and Ralph Gibson L.J. agreed) said in Meek v Birmingham District Council [1987] IRLR 250 at para. 8:
“It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal’s basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises.”
To be fair to the Second EAT, we do not think that it went so far as to say that the Tribunal made an error of law in the format of its decision.[38]The only express duty imposed on a tribunal in relation to its decision is to give the reasons for its decision (r. 12 (2) Sch. 1 Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001) and that means that the parties must be put in a position to know why they have respectively won and lost. If the Tribunal fails to do so, then that is an error of law, but as Mummery L.J., giving the judgment of this court (Beldam, Hutchison and Mummery L.JJ.) in Marks & Spencer plc v Martins [1998] ICR 1005 at 1011, said, “It is not normally necessary to set out in the decision or to discuss in detail the evidence given to the tribunal.” The Second EAT in paragraph 6 of its decision has not confined its criticisms of the factual findings or the reasons of the Tribunal to the race discrimination issue, and it may be that it was accepting that the First EAT had only principally, but not exclusively, directed the complaint of inadequate reasons to that issue (see paragraph 24 above). If it did so accept, in our judgment that was a misreading of what the First EAT held and it went outside the grounds of appeal permitted by the First EAT. It will be recalled that both paragraphs 3 and 6 of the Amended Notice of Appeal voiced complaints of the adequacy of the Tribunal’s reasons in relation to evidence for Mrs Miriki relating to unfair dismissal, but that the First EAT did not allow those grounds to go to a full hearing. In any event Mrs Miriki in our judgment was told in adequate terms what facts were found and why she lost on the unfair dismissal issue.[39]The Second EAT found an error of law in the failure by the Tribunal to direct itself correctly concerning the definition of “fair consultation” in the terms set out in Mugford . We do not understand how that comes within the grounds of appeal permitted by the First EAT to go to a full hearing, but in our judgment in any event the Second EAT was plainly wrong in identifying this as an error of law by the Tribunal. Mugford was a case in which an employee had been dismissed for redundancy, without any consultation with him personally though there had been consultation with the recognised union. A tribunal found the dismissal to have been fair and the appeal tribunal dismissed the appeal. The two passages in Mugford to which Judge Wilson refers are these. At para. 27 His Honour Judge Peter Clark (giving the judgment of the appeal tribunal) referred to the meaning of “fair consultation” given by Hodgson J. in a judicial review case, R v Gwent County Council, ex p. Bryant [1988] COD 19, which includes “consultation when the proposals are still at a formative stage”. At para. 36 Judge Peter Clark said that consultation should normally take place before a final decision to dismiss is reached, giving the employee an opportunity to put his case to the manager carrying out the selection so that the latter might reach a fully informed decision. The Second EAT does not explain why it thought that the Tribunal should have directed itself by what was said in Mugford . In the present case plainly there was no consultation, but the Tribunal found that the dismissal was fair, as Polkey recognised to be possible. The Tribunal found that the vital time was the months while Mrs Miriki was out of contact in Nigeria. It was entitled to accept the evidence of the Bar Council on this. What the Second EAT may have done was to accept an argument from Mrs Miriki’s solicitor that there should have been consultation before Mrs Miriki left for Nigeria. But that was not a point taken before the Tribunal nor is it in ground 2 of the Amended Notice of Appeal.[40]It follows from these conclusions that we cannot accept that Mrs Miriki can now attack the Tribunal’s decision on unfair dismissal on the wider grounds sought to be advanced by Mr. Westgate and not falling within ground 2. In employment cases it is important that complainants should put their whole case before the tribunal as the tribunal of fact, and, if they dispute the tribunal’s decision, to identify the specific grounds on which they are appealing. It is quite wrong to seek to widen their case before the appeal tribunal beyond that which has been allowed to go to a full hearing, still more to widen their case before this court. We would allow the Bar Council’s appeal in relation to the issue of unfair dismissal.[41]We come now to the race discrimination issue. On this issue Mrs Miriki was given permission to appeal by the First EAT in the terms of the further amendment to the Notice of Appeal, so that the issue here is whether the Tribunal failed to explain why it reached the conclusion to dismiss Mrs Miriki’s complaint. That complaint was made only under s. 1 (1)(a) of the 1976 Act, that is to say it is one of direct discrimination. It is not in dispute that the test to be applied is(1) whether the employer discriminated against the employee by treating the employee less favourably than it treated or would treat others of a different racial group in the same circumstances, and(2) whether such less favourable treatment was on racial grounds. The burden is on the complainant to prove both limbs. However, the tribunal can look to the employer for an explanation of the less favourable treatment, and if no, or no satisfactory, explanation is provided by the employer, the tribunal can legitimately draw inferences adverse to the employer that the discrimination was on racial grounds (see Glasgow City Council v Zafar [1997] 1 WLR 1659 , in which the House of Lords approved and applied King v Great Britain - China Centre [1992] ICR 516 ).[42]In the present case the act of discrimination complained of is the selection of Mrs Miriki for redundancy culminating in her dismissal. But she also relies on the matters referred to in paragraph 8 of the details of her complaint and the further and better particulars provided by her.[43]Ms. Gill accepts, as she must, that the Meek test applies to the adequacy of the Tribunal’s findings and reasons. But she submits that an outline of the story was provided by the Tribunal in paragraphs 1 – 6 of its Extended Reasons and that in paragraph 8, when read with paragraph 7 (explaining as it does why the Tribunal was satisfied that redundancy was the reason for dismissal and why the selection of Mrs Miriki for redundancy was fair), the parties are indeed told by the Tribunal why they have respectively won and lost.[44]Mr. Westgate treats paragraph 8 as the only paragraph relevant to the racial discrimination claim. He says that the paragraph gives no account of the basic story and fails to give any indication as to why the claim failed. He says that her complaint was in two parts: a pattern of less favourable treatment prior to dismissal and the dismissal itself. We do not see how these submissions can be right. Paragraph 8 cannot be read in isolation from the rest of the Extended Reasons and in that paragraph express reference was made to the earlier findings of the Tribunal on the reason for dismissal and on the fairness of the selection. The reason why the claim failed is plainly given, viz. that the reason for her dismissal was redundancy for which she was fairly selected without racial considerations entering into her selection. There is no appeal from the Tribunal’s finding as to the reason for dismissal and, subject to the consultation point, as to the fairness of the selection for redundancy. In those circumstances the finding that racial considerations did not enter into her selection is consistent with the unappealed finding.[45]Further we cannot see how Mrs Miriki can complain that the alleged pattern of less favourable treatment was itself less favourable treatment of which she can complain directly, as distinct from being material for a possible inference that the dismissal was on racial grounds. When one looks to see what specifically might amount to less favourable treatment which she herself claimed to have suffered apart from dismissal it consists only of the absence of recognition by the Bar Council of her wedding, a complaint for which she would be long out of time, and the even more trivial complaint of not receiving birthday cards from the Bar Council. Her real complaint was her dismissal. That was the less favourable treatment of which she was complaining, because she, and not a white member of staff, like Miss Justum, was selected for redundancy.[46]But in relation to that complaint the other matters are at best circumstantial evidence peripheral to the real complaint. Further the Tribunal has found that in relation to those other matters black staff were not treated differently and that it did not accept the evidence of Mrs Miriki and those who gave evidence for her. We accept that the Tribunal can be criticised for not setting out its findings of fact more fully in relation to the earlier incidents. But the question is whether in the particular circumstances of this case thereby the Tribunal erred in law. Mr. Westgate, relying on the decision of this court in Anya v University of Oxford [2001] ICR 847 , submits that it did. He contends that that case shows that even on peripheral matters of complaint it is for the tribunal to state its findings and its reasons for rejecting the complaint. In Anya the complainant was one of two equally qualified candidates for a research post but was rejected by a panel including his supervisor, as he alleged, on racial grounds. He contended that from his supervisor’s treatment of him in the previous two years racial bias evidenced by the supervisor’s hostility to him could be inferred. The tribunal dismissed the complaint, recording the applicant’s allegations of his previous treatment but making no finding as to their truth or whether they indicated racial bias. This court in allowing the appeal held that the failure to find the facts and to follow them through to a reasoned conclusion was an error of law. But in that case the complaint related directly to the alleged discriminator and his previous conduct, and one can readily see why it was important in that case that the Tribunal should make the findings which it omitted to do. Anya was a very different case from the present case. Mr. Bastin, the alleged discriminator, is not alleged to be the person responsible for the previous incidents which in any event are peripheral to the dismissal. Each case must be decided in the light of its own particular circumstances. It cannot be right that in every case the tribunal must make express findings on every piece of circumstantial evidence, however peripheral, merely because the applicant chooses to make it the subject of complaint.[47]Mr. Westgate had other particular criticisms of paragraph 8 of the Tribunal’s Extended Reasons. He said that the Tribunal had applied the wrong test as to discrimination, because it used the term “racial considerations” rather than “racial grounds”. If racial considerations do not enter into a decision, we do not understand how the decision can be taken on racial grounds. He said that the Tribunal had applied the wrong test for the burden of proof because it used the term “convinced”, and had not expressed itself as applying the test of the balance of probabilities. This in our view is another example of the Tribunal’s decision being combed through unduly finely. There is no good reason to think that the Tribunal was ignoring the standard test. Then Mr. Westgate fastened on the reference by the Tribunal to “unsatisfactory answers given by witnesses called on behalf of the Respondents”. He asked whether the Tribunal was finding that unsatisfactory answers had been given and, if so, what they were and why they did not lead to an inference of unlawful discrimination. In our opinion that is to misunderstand what the Tribunal was saying. The Tribunal in the first sentence of paragraph 8 was posing the question which it had to consider and was by the words in question putting in its own words the test, familiar to all tribunals because of the frequency with which they have to deal with the point, suggested by King v Great Britain -China Centre . It was not finding that any unsatisfactory answers were given, because it went on in the next sentence to answer the question posed in the negative. Mr. Westgate similarly asks of the sentence “ The Applicant, who is black, could well have had a suspicion that racial discrimination did enter her selection”, how did that suspicion arise and why was it not well-founded, and says that the sentence is consistent with the evidence of Mrs Miriki being accepted. To us, that reads more into the sentence than can be justified. The Tribunal is saying no more than that it understood why Mrs Miriki, as a black who alone was dismissed, had that suspicion, but it expressly went on to reject that the substance of the suggestion was justified. Finally, we should recall that Mr. Westgate argued that the Tribunal had failed to address matters consistent with discrimination, such as the manner in which the Bar Council dealt with evidence of Mrs Miriki’s illness produced by a Nigerian doctor. But Mrs Miriki cannot now take points like that which were not taken before the Tribunal.[48]Having reviewed all the matters raised by Mr. Westgate, we conclude that the Tribunal did satisfy the test of telling Mrs Miriki what facts it found and why she lost on the racial discrimination issue. In our judgment the Second EAT was wrong to find an error of law in relation to this issue.[49]Like the Tribunal we have sympathy with Mrs Miriki in finding herself made redundant when she appears to have done her job with the Bar Council entirely satisfactorily. But for the reasons which we have given in our judgment the Tribunal was entitled to reach its conclusion in the way which it did. We would therefore allow the appeal, set aside the order of the Second EAT and restore the decision of the Tribunal.

Order

Appeal allowed, the order of the EAT set aside and the decision of the Tribunal restored. No application for costs. Public funding assessment of Respondent's costs. (Order does not form part of the approved judgment)

Cited in 8 later judgments